28/08/2023
Do the current attempts by the Government in terms of the amendments to the Fair-Trading Act 1986 go far enough to cover independent contractor’s rights? Who is left behind? Who is everyone else? Is the distinction between employee and contractor sufficiently defined.
1. Introduction.
As Hardy and McCrystal note in Australia:
Everyone else’ includes anyone other than an employee – that is, small businesses, large businesses and all those in-between, including the whole gamut of the self-employed, from independent entrepreneurial professionals to low skilled gig economy delivery workers. Unlike employees, ‘everyone else’ has long been denied collective bargaining rights and has been subject to the threat of potential sanctions for this conduct under the CC Act. [Competition and Consumer Act 2010]
And it may be added “everyone else” has been those workers or contractors who fall outside of the traditional employment law jurisdictions.
The labour market is intensely political. Perhaps more so than any other branch of law. Thus proving a difficulty to respective governments which “toy” with alterations to the legislative frameworks – constantly seeking measures to provide a “flexible” and competitive workplace or a “protectionist” framework to safeguard the vulnerable. In addition, Employment Court Judges are also political to a degree, as with all of us, we are political.
What now occurs is various employee's as either within the protections of employment law or not, it will remain vital distinction to ensure those who are in dealings with employers or employees or B2B enterprises, have remedies which can be pursued or reported.
Breaches of the Commerce Act in terms of anti-cartel/competition laws are also relevant to the status of contractors who may wish to collectively bargain. But the Commerce Commission will predominantly be concerned with those who act in the detriment of the public.
This essay attempts to address those rights, the precedents in Australia to date and the precedents of unconscionability in the common law and Australian jurisprudence that the courts will now grapple with and which may be useful to independent contractors and/or business to business dealings.
A primary initial discussion focuses on the digital economy and how this has and will affect business and employment matters in future.
Unfair Contract terms in NZ and Australian legislation will also be discussed, and especially the Bill before the Australian Parliament to address shortcomings in persuading B2B contracts from cursory amendments of specific clauses and carrying on “business as usual.” Other changes in Australia in Bill form will are also on the horizon.
