The self-employed: Human rights, equity and fairness

Do the self-employed enjoy the same rights as workers and as others? Perhaps they are more privileged or less so?

Section 18C of the Racial Discrimination Act has recently been under the microscope but that debate has ignored an equally important human rights and general rights issue.

That is the rights of the self-employed person (also called a small business owner or an independent contractor). These people are the backbone of employment, of innovation, of our economy and a major contributor to our community and our culture. Yet they are treated as second class citizens and often as criminals who need to prove their innocence of other people’s crimes. They are also a large part of ‘middle Australia” and indeed employ another large part of our middle class.

There are some three million small businesses in Australia. Just over two million of these businesses do not employ anyone – they are independent contractors and home-based businesses or professionals. There are approximately 800,000 self-employed people who do employ around six million other people. We provide our employees with an income and a lifestyle, and then they help us achieve the same. We pay taxes, we contribute to charities, we sponsor community activities and we employ people with a disadvantage. Not all of us are perfect but over 90% comply with the laws of the land and collect the tax that keeps the country functioning.

Despite all this, we are still a group of people – men and women – who are too often treated as criminals and failures, who are blamed for the action of others and given responsibility for events and processes over which they have no control. We are also given the rights of second class citizens when many important issues and rights are considered.

So who is it that has worked hard to make sure we remain second rate and are kept under watch? It is many of the people of the left and right who are the problem. They live on ideology and on the contents of textbooks, not the changing and challenging world upon which those textbooks were written. They live on theory and when it suits them they dance to the tune of the powerful and rich people in oligopolies and big unions. They also make shallow statements such as:

“When you go into business you know what you are getting into”; or

“How hard is it?”; or

“It’s their own fault if they fail”; or

‘Small business people need to become better managers (and who doesn’t)”; or

“The good thing is when one falls over there is another to take its place.”

So how are the self-employed removed from the rights agenda? What areas are we treated as less than others?

It’s a long list in which the potential injustice of ‘vicarious liability’ leads the way. Vicarious liability is where “employers can be held legally responsible for acts of discrimination or harassment that occur in the workplace or in connection with a person’s employment”. This was apparently developed to punish big businesses that have toxic workplace environments. But from a small business point of view, this means an individual can be held responsible for another individual’s behaviour.

The areas where vicarious liability and other legislative demands are unfairly placed on the self-employed or where the self-employed are completely left out of the debate include: sexual harassment in the workplace; the Racial Discrimination Act, particularly Section 18E; mental health demands and support; general occupational health and safety requirements; paid parental leave; domestic violence leave; competition policy; superannuation collection and payment; and workplace relations. There is also the culture of late payment of invoices that has developed in Australia that punishes the small business people with whom cashflow is the key to a successful business.

A longer explanation of these issues is available here.

Society needs to give us our rights and treat us as the people we are. The demands placed upon us need to be to be minimal and achievable. Policymakers need to understand that we have many, many issues to grapple with and that unlike the ideologues who have too much influence, we aren’t fixated on any off-beat philosophy or value system. Like the great majority, most of us value the normal stuff based on health, education, safety for children and fairness in society.

Any demands placed upon us must be reasonable and achievable. Any protections and conditions given to workers should also be given to the self-employed. We do not want to be, and cannot be, responsible for the behaviour of others or for their wellbeing beyond what we can actually achieve and what is in our control.

A safe workplace is one where everyone is responsible for what they can reasonably achieve. A person should not employ another person if they do not value safety and are not prepared to meet their obligations. A person should not work for another person if they also do not value safety or believe that their safety is someone else’s responsibility.

If a person vilifies another person in the workplace or sexually harasses a person in a workplace or cares nought for another person’s health, than that person should be dealt with. It must not be a third party that becomes involved and blamed because they employ those people. We are not responsible for another’s behaviour. The thought that the small business person can be punished for not properly dealing with a situation in the workplace also shows a lack of understanding of the barriers placed in the way of good management. These barriers present themselves through poorly designed regulations. The policy makers and ideologues demand perfection and then make achieving perfection impossible.

The culture of blame—“There must be someone to pay for this”—has got to change otherwise safety and care will never be achieved.

By all means keep protections in place if that is needed, but do not blame an innocent third party for others thoughts and actions.

Do not ask the self-employed to undertake tasks that are unnecessary for their business to be successful or safe.

In the end the best way to look after workers is to ensure they have a job, they get paid the right amount and they are safe (which includes licences and certification where necessary).

The other unchallengeable demand on small business people is to collect and remit tax, whether that be GST, PAYG, or their own personal tax. That’s it, we should not be forced to do any other work on behalf of governments and others.

We do however have a recent win in our pursuit of fairness. This is in the world of contract negotiation, which changed somewhat on November 12, 2016. From that date there are now certain contract terms that will no longer be acceptable in a contract between a small business person and a multinational business or an oligopoly. The changes do not mean that some big businesses will change their bullying ways, but it does go some way to rectifying a very uneven and muddy playing field.

To read a more detailed explanation of these issues, visit the Council of Small Business of Australia website here.