Craig Emerson dismisses concerns about unions representing independent contractors

The Federal Minister for Small Business, Independent Contractors and the Service Economy, Craig Emerson, has dismissed concerns that unions may coerce independent contractors into collective bargaining as “alarmist”.

The Federal Minister for Small Business, Independent Contractors and the Service Economy, Craig Emerson, has dismissed concerns that unions may coerce independent contractors into collective bargaining as “alarmist”.

“They couldn’t do that before, they won’t be able to do it now. If the world hasn’t changed, then I don’t see how any of that will change. It would only change if there were a new law introduced and we’re not proposing to introduce new law,” Emerson told Business Spectator in a feisty interview.

“So if it’s good for John Howard, I don’t see why under a Labor Government it should be any different.”

Last week Australian Competition and Consumer Commission chairman Graeme Samuel wrote to Emerson that the Trade Practices Act does not prevent unions from being involved in collective bargaining on behalf of small businesses or independent contractors.

Some employer groups, such as the Housing Industry Association, have expressed concern about unions coercing contractors to join collectively bargaining and potentially undertake industrial action.

Emerson has also explained his reasoning behind wanting to change the Birdsville amendment introduced by Nationals Senator Barnaby Joyce.

Under the Birdsville amendment, a business must be deemed to hold a “substantial share of a market” before it can be deemed to have engaged in predatory pricing.

Labor’s proposal, by contrast, reintroduces the notion that predatory pricing involves taking advantage of “market power” that was at the heart of the pre-Birdsville laws.

Emerson is worried the Birdsville amendment may catch out small businesses.

“A small business can have a large market share in a small market, for example in a country town as is often the case, say in a small grocery store. It might be the only one in town; well surprise, surprise its market share is 100%, so it then is subject to the Birdsville amendment,” he says.

“If that business, for example, were engaged in sustained below-cost pricing in circumstances where there might be a grocery store, a greengrocer or a baker or a butcher wanting to set up, then that small business could be caught by the Birdsville amendment which would come as a very unpleasant surprise to the small business.”

But in an online reply to Emerson’s assertions, Joyce says the market power test has proved impossible to prove. He also hits back at claims that market abuse would be too easy to prove under the Birdsville amendment.

“To be caught by the Birdsville amendment you have to sell below cost for that long that a person could take you to court and prove that the length and extent of your below cost selling was for the purpose of taking them out of the market.” 

Related articles:

• ‘Birdsville’ predatory pricing laws set to stay
• ACCC confirms unions can represent independent contractors