This is a Union Representative’s Response to Providing Better Support for Freelancers
When What-Else spoke with Marque Lawyers’ Justin Cudmore and Emilie Blake, they shared their
perspectives around the ways in which support systems are significantly lacking for freelance
creatives in Australia right now. And explained that the key question they would pose to the
Australian Council of Trade Unions (ACTU) would be around ‘how their structures, skills, and
networks could be used to better assist freelancers.’
In Part II of our deep dive into support systems for creative freelancers in Australia, Blake Adair
Roberts lends a union / industrial relations perspective to the conversation. As an Industrial Officer
with the Health Services Union (HSU), he sheds light on some of the power imbalances at play for
freelancers and the reasons why they are generally prevented from engaging several of the protections
that are commonly available to employees. He also discusses which other countries have models that
we could learn from to help improve this structure and how we could work towards implementing
better support systems for freelance creatives in Australia.
Rosie Dalton: Could you introduce yourself and tell us a bit about what you do?
Blake Adair Roberts: I’m Blake Adair-Roberts, I work as an Industrial Officer (IO) with the Health
Services Union (HSU). An IO is the legal role within unions, responsible for carriage of members'
individual and collective matters such as unfair dismissal, back pay claims, and workplace disputes. In
short, we perform the advocacy within the relevant industrial commissions, tribunals, and courts on
behalf of Union members.
Previously, I worked as Organiser for the Australian Workers Union (AWU), in my experience, an
Organiser role is much more hands-on, visiting workplaces every day, engaging members, driving
activism in the workplace, recruiting non-members, and supporting members in any workplace
capacity possible.
I have a Law degree from the University of Sydney. The reason I work in the union movement is I
believe that collective action and mobilisation of workers has been, and continues to be, the most
effective way to drive progressive change in this country. Just last month, a case brought by the union
movement in the Fair Work Commission won all employees the right to 10 days paid domestic and
family violence leave for victims of violence.
Rosie Dalton: From a union / industrial relations perspective, do you feel like there is currently
enough structural support for freelance creatives working in Australia?
Blake Adair Roberts: Personally, I have limited to nil experience representing contractors. From a
broader labour law perspective, the protection for contractors / freelancers are, in my view, woefully
inadequate in this country. My primary reason for saying this is because in Australia, both at common
law and statute, there has been minimal recognition of the contexts of subordination and dependency
which ‘contractor’ workers experience.
In terms of a genuine contractor who [owns] their own business, the current laws are perfectly
reasonable. However, for workers who find themselves in positions of subordination or dependence in
relation to the party that engages them for the contract, then the laws are significantly behind progress
made in other countries. I believe this would be the same whether you are a freelance creative such as
a photographer or an Uber driver.
Freelancers are not considered employees under the Fair Work act, which prevents them from
engaging several [of the] protections available to employees – such as unfair dismissal, workers
compensation, and most importantly, the right to collectively bargain and be represented by a union to
achieve a collective agreement.
The success of unionism in any industry is tied to the ability to structurally improve conditions
through collective negotiation, for example in the film and television industry, the Media
Entertainment and Arts Alliance will sign agreements with film companies providing fair terms and
conditions, security of employment, and other benefits.
Freelancers, as they are locked out of this process, cannot achieve the gains which workers can
achieve working in unison (combined with the threat to withdraw their labour en masse). Therefore,
they are left to negotiate individually with large companies, against other workers in the industry. This
power imbalance, combined with a competitive labour market for work often will result in workers
being worse off.
Other countries have models to improve this – in England, the Employment Rights Act creates a third
category of worker which is a contractor in a position of subordination and dependence relative to
their opposing party and [who is thus] afforded a degree [of], although not all, employment rights.
Rosie Dalton: What is available to Australian creatives under the current structure and what
gaps can you identify?
Blake Adair Roberts: As I’ve not represented independent contractors, I’m unaware of the best means
to remedy their current challenges from a legal perspective. [But] I would recommend any Australian
creative to reach out to their relevant union – most likely this will be Media Entertainment Arts
Alliance, however, others may also be relevant: CFMMEU for textile manufacturing workers, AWU
for hairdressers, and SDA for retail workers, UWU for some parts of the fashion and entertainment
industry too.
Like any industry which historically has had bad conditions, the starting point is always workplace
organising. Despite the challenges I’ve flagged, workers have always faced relatively hostile labour
laws. The most effective tool any worker has is discussing their situation with workmates, agitating
for change within their workplace, and remembering that there is far more power in collective action.
A starting point for this could be as simple as starting a Freelancers Network to discuss pay,
conditions, and build activism within the industry. Change is best achieved through engaging with
workers in a campaign which can leverage frustration and target it towards those who make the
decisions: the companies hiring at suboptimal conditions or governments who fail to regulate the
industry.
Rosie Dalton: In what ways do you feel that this support could be improved upon?
Blake Adair Roberts: From a legal perspective, removing the current common law definition of
‘employee’ and inserting a statutory model which recognises the inherent power imbalance
contractors face and provides them with employment protections and grounds to unionise more
effectively like in other countries. I think a lot of unions could do a better job at engaging contractors.
Rosie Dalton: Do you believe that there should be a fashion union for freelance creatives
working in Australia?
Blake Adair Roberts: Despite my very minimal experience with the fashion industry, my
understanding from friends in the industry is [that] the conditions can be extremely poor and pay is
often the same due to having no minimum wage protections.
The only realistic way this will change is through worker solidarity and a concentrated campaign to
re-tip the balance of power within the industry towards the people performing the work.
If freelancers are kept separate, competing against each other, the companies will continue to hold the
power to drive down remuneration and conditions.
In saying this, the process to becoming a union is complex and difficult, workers would be better off
building networks and approaching an established union to amalgamate into, which provides the
benefit of expertise and resources.
Rosie Dalton: Could the Australian Council of Trade Unions represent freelance creatives in
this sort of capacity?
Blake Adair Roberts: The ACTU as a federated body does not directly take on members; other unions
affiliate with the ACTU and the ACTU is responsible for macro policy and campaigns on behalf of all
unions.
In saying this, the ACTU does a lot of work to drive innovative new areas of union membership in
new and emerging industries alongside specific unions. MEAA currently represents freelance
journalists, photographers, and other creatives. I imagine this ‘freelance’ division may be able to
assist, although I’ve not had a close look at their ‘rules’ to ascertain their coverage. My understanding
is this division does a lot of work to assist members with enforcement of contracts, negotiation, and
sharing information of who the best ‘employers’ are of freelancers.
Game Workers Australia [has] a recently developed division of Professionals Australia – game
workers seem to suffer a lot of similar problems around contracting. I’d recommend looking further
into their process as to something which may work.
United Workers Union has established a division called ‘Hospo Voice’ which operates entirely online
and targets casualised, young bar staff providing a different model of organising [that’s] more relevant
to dispersed, uncoordinated, and younger workers. This may also be a great platform to look into from
an organisational perspective [around] how to start organising the industry.
The AWU has taken a similar approach with Hair stylists Australia. [And] the Transport Workers
Union has established ‘Delivery Riders Alliance’ to target gig workers in the transport / delivery
industry. While not related to creatives, they’ve had some greater success achieving collective wins –
Menulog has agreed to hire their staff and stop contracting work, providing employment protections,
minimum entitlements, and union representation to workers.
Rosie Dalton: Is there anything else you would like to add?
Blake Adair Roberts: [Yes], on a site note, I am very glad Labor won the recent election and one of
the main reasons I think this will be great is because of Labor’s intention to address the issues [that]
casuals, contractors, and gig workers face. I’m not sure exactly what the legislation will look like, but
I’m hopeful it will address a number of the issues I have identified.