Charter of Contractual Fairness
On 1 July we launched our Charter of Contractual Fairness

We have heavily drawn the principles of contract fairness from the new consumer unfair contract protections laws. If it's fair for consumers, it's fair for small business people - the self-employed and independent contractors.

We are currently writing to Australian corporations asking them to commit to contract fairness in their dealings with small business people.
Election Face-off 2010
Here's how the 2 sides currently shape up for small business/self employed people! (10 July 2010)
Gillard's ALP

So far, they've told us "here's what we've done!"

• Started a superannuation clearing house
• Begun a small business online inquiry service
• Established a Small Business Advisory Committee
• New liability contract guidelines for government procurement
• National Business Name Registration
• A new guide for self-employed people
Abbott's Coalition
They've announced the first part of "here's what we're going to do!"

• A dedicated Small Business Minister who will be in Cabinet
• A new Small Business Ombudsman to handle and resolve small business complaints about the federal government
• The extension of consumer unfair contract protections to small business people
• Retention of the current self-employed (PSI) tax laws
• Stop small business red tape on Paid Parental Leave
• Mr Abbott's and Mr Billson's joint press release
What we've been asking for
• The extension of consumer unfair contract protections to small business people

• Retention of the current self-employed (PSI) tax laws. Our letter to the PM (28 May 2010)

Failure to fix unfair business contracts
ICA says "extend unfair contract protections for consumers to small business".

New laws:
Legislation #1 (March 2010)
Legislation #2 (June 2010)

Here's our summary of the situation.
How the legislation defines unfair contract terms.
Why small business people should have TPA protections from unfair contracts.
We need an answer on tax, please
We've made it quite clear that self-employed (PSI) tax should not be changed.

We've written to the PM for an answer, but we do not yet have a reply.

Tony Abbott has been clear. NO change!
Industry/Retail super funds must come out
The Cooper Review into superannuation says the big funds are not disclosing enough and must be forced to do so. This is vital. See Chapter 4.

Here's why workers' money is at risk if disclosure is not enforced.
Look after your retirement
The Cooper Review of superannuation says Self Managed Super Funds are good and need little change to existing arrangements. This is welcome. See Chapter 8.

The Report also seems to have stopped the attack against SMSF's.
Stand Up for Your (Contract) Rights!
We're monitoring contracts in general and promoting good contracts in particular. For example:
Another bad contract (Jun 2010)
One of the worst contracts we've seen (Jan 2010)
'Tom' versus DEEWR (Nov 2009)
But a positive development from government
Ken Phillips comments
And some interesting discussions
Central Banks on Debt
Since mid-May, central banks have been worried about sovereign debt. Click here for a list of useful links and summaries.
Problems with Phoenix companies
Two ICA members' tell their stories
ATO information on reporting suspect activity.

Govt's attempts to do something:
ICA comment

Newspaper comment:
The Australian
The Age/Sydney Morning Herald
Business Spectator

What 'Tom' thinks
What 'Jim' thinks
Dick Davies Writes...
"...the human fabric of the workplace precedes in importance that of technology!"
Dick Davies prods us to think about management, independence and motivation. Click here.
Stop Sham Contracts!
ICA supports the prevention of sham contracts. We monitor what's happening with them:
One person's story
Successful FWO prosecution (Dec 2009)
Info from Fair Work Ombudsman (July 2009)
First sham contract prosecution: ICA summary
Make a complaint to FWO
Business Spectator article
Read the debate
... Unquote
The Pessimists' Economic Views
(Posted January 2010)
We've brought together some pessimistic views about economics and likely economic trends in 2010:
US toxic loans
'US as sick as Greece'
Ken Phillips's summary
An 'IMF' perspective
Predicting 2010
Government debt a giant ponzi scheme?


Click to enlarge.

Ken Phillips on the debt equation


Watching Goldman Sachs
Rolling Stone magazine has blown the lid on Goldman Sachs:
Article 1 [July 2009]
Article 2 [April 2010]
Article 3 [May 2010]
Tax burden: UK versus Australia
Just as the UK is moving toward more sensible small business (contractor) tax laws, in Australia we're having to defend the progress we've made.
Laughing lawyers
You'll be amazed by the 'slips' that some lawyers make in court.
Occupational Health and Safety laws in Australia have been at a crossroads. There has been a commitment to national harmonization which has been needed, but the question was: what would new laws look like? The choice was between laws modelled on Victorian or NSW laws that are totally opposed. For an explanation of the difference click here for a Sydney Morning Herald article of 2007 by Ken Phillips. It's important to understand that OHS prosecutions are criminal prosecutions with jail as a possible outcome.

Targeting standard safety laws
September 2009

On 25 September the Deputy PM, Julia Gillard, released the proposed national work safety laws for public comment. It's a shame the ACTU opposes her initiative. We've summarized the laws and provided links to the proposed laws, discussion papers and Joint Ministers' communique. You can also read Ken Phillips's associated articles in Business Spectator and The Australian.

Important Links:

ACTU campaign against safety laws
September 2009

On 14 September, the ACTU launched a radio advertising campaign opposing the Rudd Government's proposed national work safety laws.

The advert (mp3 audio file) is highly misleading by claiming that the Rudd laws will put workers at risk. This is dangerously wrong. The proposed laws will significantly improve work safety.

The union campaign is short on facts, false in its claims and deceptive about the truth of the improvements under the proposed laws. Today, Ken Phillips, Executive Director of Independent Contractors Australia, challenged the ACTU to a public debate on the facts of the proposed work safety laws. "Anywhere, anytime" said Ken. "We've got to stop the union bull on this issue."

State and Federal Ministers agree to principles of new OHS laws
May 2009

The Federal Government has committed to harmonization of Australia's OHS laws.

ICA sees this as a big breakthrough because the proposed laws are of the right type:
(1) The laws reflect the Victorian model.
(2) The definitions of employer and employee are NOT the basis of the laws.

These are very positive outcomes, consistent with the long-argued positions of ICA. We believe safer work will be the outcome.

The two key documents are:
(1) Ministers' joint communique
(2) Details of the principles of the new legislation.

For Business Spectator commentary article by Ken Phillips, click here.
For Ken's 'Counterpoint' interview with Michael Duffy, click here.

In May 2009, national workplace relations ministers signed up to the principles that will form the news laws. The Victorian model has prevailed. ICA strongly supports this outcome. The position taken by the ministers is common sense and will lead to an improved work safety environment for all Australians.

For the full position of the WRMC, click here.

Key points are as follows:
  • The laws are to 'move away from the traditional emphasis on the employment relationship as the determiner of the primary duty (OHS)'
  • 'Application of the primary duty of care to any person conducting a business or undertaking'
  • Volunteers will not have 'inappropriate' duties of care imposed upon them. Note: Volunteers can still be prosecuted under general criminal law.
  • Every person involved in work activities will have statute obligations to act safely. This covers anyone conducting a business, whether as an executive, manager, independent contractor, employee, supplier, designer and so on, even a union. The responsibility applies to the private and public sector alike. No-one is outside the responsibility loop.
  • Everyone is responsible to the extent that is 'reasonable and practicable' for them within the realities of their work. That is, it is a defence for a person charged to argue that they did everything they could that was 'reasonable and practicable'.
  • OHS codes will be developed covering specific practices (eg) electrical. (Many of the codes are already in place but need to be made nationally consistent.)
  • There is a presumption of innocence. The prosecution must prove a case to the 'criminal standard of proof' and 'must bear the onus of proving beyond reasonable doubt...'
  • There are to be 3 levels of offences (a) the most serious where recklessness is involved (b) high level of risk without recklessness (c) lower level where recklessness or high risk was not involved. Note: Normal criminal law applies, for example, with manslaughter etc., beyond the scope of OHS laws.
  • Jail for up to 5 years is possible for the most serious offences.
  • There are no appeals from acquittals. 'Double jeopardy' does not apply. For example, under NSW OHS laws, a person can be tried twice for the same offence---even if they have been found innocent on the first trial.
  • Workers will be able to elect safety representatives who will have wide powers, including the possibility of being able to stop work. The provisions are to be modelled on those already in place in Victoria and recently introduced in Queensland.
  • Elected safety representatives can be disqualified by a court for improper use of their powers.
  • A worker will have the authority to cease work if he or she believes the work to be unsafe.
  • OHS officers will be immune from personal liability in exercising their duties.
  • Unions will have right of entry to worksites consistent with provisions in the Fair Work Act. A union official must be authorized, have training and can have his or her authority removed by a court for inappropriate conduct. Union officials will not be able to 'investigate' but only 'inquire into.'
  • ONLY the departments of public prosecution will be able to prosecute. That is, unions cannot prosecute.
There are some points which ICA believes require further consideration:
  • Allowing OHS inspectors into private homes. The ministers' statement is a little unclear as to whether inspectors are to be allowed only into those parts of a private home where work is conducted or whether they can enter any part of a home. The risk is that private homes could be 'raided' by OHS inspectors without a warrant---giving them greater power than the police. Clarification is needed.
  • The right to silence has been removed. ICA is undertaking some research into this, but on the surface there are concerns. It has been a long-standing principle of criminal justice that every person has the right to silence so as not to incriminate themselves. Police cannot force a person to answer questions in a criminal investigation. The WRMC position seems to give OHS inspectors an authority not available to the police and without any justice safeguards. For example, a person must answer questions even without a warrant being issued or charges laid. Clarification is needed. Note: ICA understands that this is NOT a feature of the Victorian OHS laws.


Chance for safer workplaces,
if laws matched the new attitude

Ken Phillips
The Sydney Morning Herald
Tuesday, March 06, 2007


The NSW Government has launched a new attack on the unacceptably high death and injury rate in the state's workplaces. In 2004-05 there were 125 deaths and 50,000 serious injuries in work-related incidents in NSW.

The new campaign is a multimedia blitz, Homecomings, and is based on a successful Victorian campaign last year, punching the message that work safety is about coming home to your family. If you are injured or killed at work your loved ones and friends bear the emotional and other consequences as much as you suffer.

This psychological tilt at work safety attitudes targets a great weakness: one of the hardest attitudes to create at work is to have everyone thinking about safety every moment of every day. Injuries and deaths too often occur because of inexplicable lapses of safety attitude.

Accident case studies groan with such instances. A big trick in work safety is to achieve a 100 per cent safety focus all day every day. Homecomings says: 'For your families' sake, think safe.'

If work safety is to be improved, state governments need to learn from each other. Best practice needs to be repeated across Australia. But this is where NSW needs to learn a lot more.

The Homecomings campaign in Victoria emerged from a 2004 sea change in Victorian work safety laws. This produced a big shift in the approach of the Victorian WorkCover Authority to how it relates to businesses and workers on safety.

Before 2004 Victoria had experimented with highly aggressive prosecutions against employers. Because work safety is such an emotional issue, often the reaction is to blame someone. This reaction reasons that employers always cause work safety incidents and that tough laws and aggressive prosecutions are needed to scare employers into behaving.

This is the policy approach used in NSW. It's the design feature of NSW work safety legislation and is the force underpinning NSW prosecutions. But after much public debate Victoria rejected this approach. The 2004 Victorian laws are built around the recognition that everyone at work contributes to safety. The laws hold everyone, employers and employees, equally responsible over what they control. Prosecutions target everyone who may have contributed to a safety breach.

Further, the Victorian laws removed legal blockages to the WorkCover Authority's capacity to advise and help business with work safety procedures. Co-operation rather than aggression is seen as the first, essential part of a total package to improving work safety. Out of this new approach the creative Homecomings campaign was born.

But the NSW approach of aggressive, fearsome attacks against business is at odds with Victoria's. So obsessed is NSW with instilling employer fear that natural criminal justice has been stripped from the system. Occupational health and safety criminal prosecutions impose presumption of guilt, apply unachievable criteria for proving innocence and deny full rights to appeal or trial before jury.

This stripping of justice is justified on the grounds of needing to obtain convictions regardless of safety behaviour, to create a culture of employer fear. Academic literature on the topic openly promotes this. But inevitably injustices occur under such a regime.

Many cases have emerged of clearly blameless persons being convicted. Irregularities in prosecution processes have been documented. And the judiciary is concerned. A senior NSW judge recently described one prosecution as 'constituting more than prosecution and amounting to persecution of the defendants', said the prosecutor had acted 'inappropriately', and argued for fixing of the laws and the sacking of the NSW WorkCover Authority as the Government's prosecuting department. Last year the Government seemed to recognise the problem. It tried to reform the laws but NSW unions campaigned against them. The Government backed down and the laws and culture of employer-hate on work safety remain. Co-operation and guidance as the first benchmark for safety are not part of the NSW Occupation Health and Safety system design or practice.

NSW is at a threshold on work safety. The Homecomings campaign is a great initiative. But the Victorian ads are underpinned by a realistic and practical approach to achieving better work safety cultures. NSW does not have this. The NSW campaign may fail because it's marketing spin lacks policy substance.

For work safety's sake, NSW needs to take the next step and fix its laws.