Legal Entitlements Of Employees In Australia

1. On recommendation made by the recommend committee, the legislature has made amendment as to voluntary transfer of employees between the associated entities. The transferring of employees shall be made complying the provisions of the FW Act (Sec. 311(1). The Act states that the employer has an obligation for the transferring employees between the associated entities. According to Section 311(6) the employee who has voluntarily applied for superior position in the related entities the transferable instrument should not be applied. The section or the provision of the act has been amended with the object to protect the employees at the time when the employer moves them to any of its associated entities. The section also protects the employers from bearing the extra cost for the transfer of employees in the related entity. However, it is provided that the changes made to the present Act has been made with the object to restrict and shuts the loopholes in transferring employees in the related entities with the same terms and conditions of employment (Sappideen O'Grady,& Riley, 2016). 

2. The legal effect of a part time worker is similar to that of a full time worker. A worker who works for relatively a less working hour than a full time employee is termed as a part time worker. The part time employee is entitle to get the same rate of wages as but as per the hours worked. All the employees who are not a casual worker shall receive salary at normal rates and is entitled to receive benefits. All employees irrespective of being a full time or part time shall receive number of leaves as per the provisions of the Act. As per the provisions of the Fair Work Commission all the employees are entitled to certain type of leaves such as the casual leaves, medical leaves, parental leaves and certain other kinds of leaves (O’Leary, 2017). The part time employee is also entitled to receive the minimum period of notice period as any other full time employee would get or payment in lieu of notice (Walsh, 2015). 

3. A valid contract of employment is the foremost essential of an employment. The employee needs to prove that there exist a contract of employment in case the employee wants to sue employer for any contravention of the contract. (Freedland et al., 2016). The essential elements of a valid contract of employment will include the following:

• Agreement: The employer shall make an offer to engage or appoint a candidate as its employee. The employee needs to accept the offer with the terms and conditions. As soon as the employee accepts the offer, there forms an agreement. Therefore, the agreement which can be enforced before the law is a contract.
• Intention to create legal relations: The employer and he employee should intend to create legal relations. Where the employment is made due to the existence of social or domestic relationship, the intention to create legal relationship doesnot exists.
• Consideration: The employee is entitled to receive consideration for the work done be him during the course of employment and under the provisions of the contract.
• Work Experience: The employee should have a knowledge, skill or experience in the field of work he has been contracted under the contract of employment.
• Certainty and completeness: The employer- employee relationship should be certain and complete with respect to the terms and conditions of the employment. No parties to the contract shall hide or keep secret about any terms and conditions of the employment(Vettori, 2016).
• Legality: The contract of employment should have a legal objective or legal purpose. Anything, which is illegal in the contract of employment, makes the contract invalid.
• Consent of the parties: The employee should have a free consent for the work he has been contracted for and shall not have undue influence on the consent of any of the parties to the contract. 

4. Under the National Employment Standards, a modern award is a set of rules for terms and conditions of employment. An employee is entitled to receive certain entitlements such as the pay, hours of the work. Rosters, breaks allowances, penalty rates and over time. Modern award is applied to employees covered by the National Work Place Relations System (Stewart, 2016). To determine whether a modern award applies to the particular workplace an employer or employee should have been working under an award based transitional instrument before the commencement of the new amendments to the Fair Works Act (Adamson, 2017).  

5. The FW Act states that where a majority of workers bargain collectively with good faith. The essential elements of good faith bargaining includes attending and participating in meetings at a reasonable time, disclosing relevant information and responding to the proposals (Colvin, 2014). The FW Act defines enterprise bargaining as an obligation, which the bargaining representatives must comply. The obligations of the representatives establish rules during negotiation and if breached shall have bargaining orders from the Fair Work Commission. The Conduct of good faith bargaining is regulated by the obligations during negotiations (Pekarek, 2017). 

6. National Employment Standard includes certain rights of the employees to request the employer for flexible working arrangements. The employer can refuse such request on the reasonable grounds. Any employee can require flexible working arrangements on the grounds such as if the employee is a parent of a child and wants look after the child during its school age, wishes to have a career, have a physical or mental disability, at the age of retirement and many other (James & Ombudsman, 2015). The employer may approve the request within 21 days from the date of receipt of request, if the employer refuse to approve the request, then the employer will have to provide sufficient reason for the refusal of the request. The employer may refuse the request on many grounds such as expensive working arrangements requested by the employee. The employer does have enough capacity to change the working arrangements, or the new working arrangement requested by the employee is impractical and does not suit the business structure or the new working arrangements requested by the employee will have a negative impact on the customer dealing (Byrnes, J. (2017). 

7. The employees should be loyal towards his employer in discharging the duties set forth by the employer on the employee. The duty of loyalty and fidelity has its reference from the common law. The employee is liable to discharge its duty under the contract of employment. In certain circumstances, the employee will have duty of loyalty towards the employer when the employee is in special position and the employer is bound to retain the trust and confidence of the employer. The duty of fidelity states that no employee shall use any information, which he has attained during the course of employment against the enterprise or the employer. The public sector employees have to be loyal to both the employees and the public at large, which the public sector employees need not have to do. The duty of fidelity is the method to retain the trust and confidence of the employer. The duty of fidelity includes that the employees should behave honestly, the employees should not work for the competition with other employees, shall not make secret profit or disclose any material information of the employer or use any confidential information to gain personal interest. The employee has full trust and confidence in some employees. Such persons or employees have duties, which may include that the employee shall act for the best interest of the enterprise and shall not act anything for the self-interest of the employee. The employee should protect the interest of the employer and achieve the goals set by the employer. Fiduciary duties are performed by such employees of the company who acts as the directors of the company.

8. The sexual harassment which would constitute sex discrimination under the legislation. A person is sexually harassed if he or she is subjected to unsolicited and unwelcome conduct of a sexual nature by a person who stands in a position of power in relation to him or her. Sexual harassment by an employer can amount to discrimination on the ground of sex in the following circumstances that is if the conduct is such as to create an unwelcome feature of the employment in a continuing rather than an isolated sense. The employer is to be detrimental, and regardless of whether it leads to a loss of tangible job benefits or if the employer secures compliance with his sexual demands by threatening adverse employment consequences (Saunders & Morrison, 2015). However, if the rejection of the employer's sexual demands leads to retaliation in the form of loss of access to employment opportunities; or if the rejection of the employer's demands leads to retaliation in the form of loss of tangible employment benefits. The phrase terms or conditions of employment in section 25(2) (a) should be interpreted broadly to cover and include all substantial terms or conditions relating to employment which may be imposed upon an employee during the course of that employment. The word detriment in section 25(2) (c) requires that a complainant has been placed under a substantial disadvantage in comparison with other employees of the opposite sex. In the context of sexual harassment conduct creating an unwelcome feature of the employment and therefore coming within section 25(2) (a) would also lead to a detriment under section 25(2) (c) (McDonald Charlesworth, & Graham, 2015)..

9. PCBU means person conducting a business or undertaking under the laws of Work Health and Safety Act 2011. The legal term is meant for individuals or businessman or employer in an organization who are conducting business and the person who work in this PCBU is called a worker. A PCBU may be a public or private company, partnership firm (Talbot, 2016). Proprietorship business, government enterprise, cooperative or associating having more than one employee or any institution. A PCBU has certain obligation which it must comply to provide the healthy and safe environment for its workers. The general obligations or duties of a PCBU are to provide a safe working environment to9 its workers or employees. The business plant, building or structure should be safely made. The workers should be provided with appropriate facilities and benefits for the development, improvement and welfare of the workers and its employees. The workplace incidents or accidents should be recorded for future use. The business entity should provide its workers proper training and awareness of safety methods and give instruction in that regard (Martinov-Bennie et al., 2014). PCBU should always comply the provisions and requirements as mention under the Work Health and Safety Laws. PCBU should appoint such persons for the monitoring of the health standard of its employees and workplace conditions. The organization should use its premises when required for the accommodation of its employees. The duty of the PCBU is to manage and control workplaces and monitor and change regularly the fixtures, fittings and plant and may design the structure of the plant as per the standard with such substances which best suit the plant structure. 

10. The industrial action is governed under the Fair Work Act 2009. Industrial action can be of many types such as the workers may go into strike or refuse to work as per the normal duties. Industrial Action under the FW Act is defined any employee who does not perform their work normally and adopt a practice which restricts the performance of work within the enterprise. In this situation the workers does not perform their duties (Forsyth, 2017). The workers may proceed with the industrial action plan through a bargaining representative for an employee who is covered under an award or enterprise agreement and will have to apply before the Fair Work Commission for an action ballot order. However, before taking any action the employees must provide a notice to the employer stating the cause for the industrial action. The bargaining representative of an employee must notify all other employees regarding the industrial action. The notice will consist of the type of action and particular date from which the action will begin (Bailey & Peetz, 2015). 

Q11.

Issue:

Whether Cynthia can bring action against the employer under the Australian Consumer Law

Rule:

Redundancy means dismissing a staff by the employer due to financial constraint of the employer or winding up of business or the employer cannot carry on business with the number of staff and needs to reduce the number of staff to meet its financial crisis. The employers must follow certain procedures in case of redundancy. Redundancy happens when the  employer does not require an employee’s job to be done by anyone or the employer has become insolvent. The other factors for redundancy of employees from the company or business unit is due to the introduction of new technology which requires less manpower to complete the required task or process of the company or there is a financial constraint in the part of the company or the company winds up or relocates to any other place (Australia & Miller, 2016). The employer may dismiss any of its employees using the term redundancy for poor performance or conduct reasons. Section 385 of the Fair Wages Act 2009 states that the dismissal of an employee will not be considered unfair where the employer has a case of genuine redundancy (Griffiths, 2015). Section 389 of the Act also provides that in case of a genuine redundancy there must be certain factors. The employer does not require any employee for certain task to be performed by anyone because of certain changes in the operational structure of the company or the employer has complied the statutory requirements for the redundancy under any of the modern awards or employment agreement. In case where the enterprise has the obligation to comply with the consultation provisions under a modern award or enterprise agreement for redundancy and the employer does not complies with such award or agreement then the employee can bring action against the employer for non compliance of the obligations. The employee will bring action against the employer before the Fair Work Ombudsman. The employee will get remedy such as civil penalties and compensation (Corones, 2014).

Application:

Cynthia was employed in the Woodrising Pty Ltd. The contract of employment consists of his remuneration package, contributions and leave structure. The agreement also consists that the employee will be terminated from his job after giving three months notice or summarily for serious or willful misconduct. As per the FWA the employer should comply with the obligation under the agreement to complete the procedure of redundancy. The agreement says that Cynthia will be terminated by giving three months notice but the employer neither gave him a minimum three months notice nor did he informed Cynthia about the redundancy procedure before making redundancy. Therefore, Cynthia is entitle bring action against the employer before the Fair Works Ombudsman for the beach of the enterprise agreement in the termination process and for making unlawful termination. The employer will be alleged for civil penalties and will be liable to pay compensation to Cynthia. Moreover, for alleged unlawful termination he is also liable to pay the remuneration plus the superannuation benefits under the Act to the employee.

Part B: Q11

Therefore, as per the fact and the application of law i.e., the Fair Works Act, 2001 Cynthia is entitled to bring action against the employer under the Australian Consumer Law. 

Q12.

Issue:

Whether Webber is entitled to refuse to work on Saturday, Sunday and the public holidays.

Rule:

The National Employment Standard deals with the public holidays. All employees falls under the application NES and are covered by the national workplace system and is exempted under an award or enterprise agreement. The NES id formed to protect the rights of the employees in a workplace and has the right to refuse to work on a public holiday. The NES also guarantees payment in case if an employee is absent on work in public holidays (Vosko  Noack, & Tucker, 2016).  The NES also protects the employees from any adverse action taken by the employer for refusing to work on a public holiday. The employee is entitled to refuse to work on a public holiday based on the grounds as mentioned under NES (Soldan & Nankervis, 2014). The employer may ask the employee to work on public holidays considering the grounds like the nature of the employer’s workplace and the nature of the work to be performed by the employee. The employee’s personal circumstances, including family responsibilities may be the reason behind the refusal of work on public holidays. Where the employee could reasonably expect that the employer might request work on the public holiday or the employee is entitled to receive overtime payments, penalty rates, additional remuneration or other compensation that reflects an expectation of work on the public holiday. The type of employment (e.g. full-time, part-time, casual or shift work), the amount of notice in advance of the public holiday given by the employer when making the request, the amount of notice in advance of the public holiday given by the employee in refusing the request, any other relevant matter (Williamson, 2015).

Application:

Webber is an employee in Premier Pet Pty Ltd has made new rostering arrangement, which states that the employees have to work on weekends for operational requirement and the employees will be entitled to receive overtime for the extra-time of work. Under the NES every employee has the right to refuse to work on weekends and public holidays. NES states the ground of refusal, which states that the employee can refuse to work on public holiday’s where it is required because of family responsibilities, the type of employment he is engaged in i.e. part time, full time, casual or shift work.

Part B: Q12

Therefore Weber is entitled under the NES to refuse to work on Saturday, Sunday and public holidays.

Q13.

Issue:

Whether there is any legal means to create an entitlement to paid leave for live organ donation.

Rule:

A person who donates his or her organ to another person is known as the living organ donor. The donor is usually a close friend or blood related to the donee. Organ transplant is basically mean to transplant of organs like kidney or liver. Living organ transplant is a very risky surgery and helps the donee to survive in his life. The persons who are the donors of the organ has to undergo various testing and examination to make sure that the donor is the perfect match for donating the organ to the donee. Donating an organ cannot be made without surgery and the donor will require a long time to recover and become fit for work. In many cases it is seen that the donors are required to take leave without pay or has to take the leave from the leaves entitled to them. The donors does not feel secure in this condition and sometimes they can be under financial stress and may return to work before they are fit for work. A global understanding of existing legislation and programs would help decision makers implement and optimize policies and programs. The living organ donor as part of the transplant process frequently incurs non-medical expenses. These expenses include travel, parking, accommodation, meal and dependent care costs, as well as lost income (Tushla, 2015). To ease the financial burden of organ donation, experts advocate reimbursement of legitimate expenses, stating that it is just and ethically responsible, and should be considered a cost associated with treating living organ recipients.  All groups make a clear distinction between the acceptable practice of reimbursement of legitimate expenses incurred as a result of the transplant process, and payment resulting in financial gain which is illegal in most jurisdictions. A comprehensive understanding of existing reimbursement programs would provide a global context for decision makers as they look to implement or refine reimbursement programs within their jurisdictions. The lack of a published comprehensive account of global legislation and practices prompted this review.

Application:

The living organ donors are supported by Supporting Living Organ Donors program in Australia which raises the profile of the donors and put emphasis on the employer to support the donors by providing either extra leave benefit or entitled to receive leave entitlements. The person who has donated an organ should be provided with financial contribution by the employer and should reimburse the income lost due to organ donation. The program held by the SLOD has some eligibility criteria. The eligibility criteria include the person who has attained the age of majority and the employer has willing to enter into the organ donation program.

Part B: Q13

Therefore, this is the best legal means to create an entitlement to paid leave for live organ donation.

Q14.

Issue:

Whether Nathan Lion Limited is able to terminate Bogdan;s contract of employment.

Rule:

Under the Fair Work Act, an employer can instantly terminate an employee's employment, where the employee has engaged in serious misconduct. The employer will have to establish that the employee has in fact engaged in serious misconduct. The employer will still need to follow a certain procedure to terminate the employee and shall have to abide by the terms of natural justice. The term ‘Serious Misconduct’ is defined under the FW Regulation, which states that an employee is said to have made a serious misconduct when the employee as acted deliberately which violates the terms and conditions of the employment contract. The act of the employee that is serious and can harm or injure other employees or the interest of the employer. The employee is said to have made a serious misconduct if the employee has harmed the reputation and goodwill of the employer, reduces the chances of profit of the business. The conduct should be made during the course of employment so as to sue the employee or terminate the employee on the basis of serious misconduct. Once the employer have established that an employee has engaged in serious misconduct, and the employer wish to terminate that employee's employment. The employer should immediately arrange a meeting with the employee, and advise the employee that they are able to have a support person present at that meeting. At the meeting the employer should present all the facts and evidence to the employee that surrounds the alleged misconduct (O’Leary, 2017).  This may involve notes taken from interviews that you had with other employees or clients who may have seen what took place. The employer must then allow the employee to respond to the allegations and explain their actions, whether it be in that meeting, or to provide you with a written explanation at a later point in time. After the meeting or after the employee has responded to the alleged misconduct in writing, write a letter or email to the employee confirming the facts of the alleged misconduct, and also confirming their explanation. However, if after considering all the evidence including statements given by witnesses, and after considering the employee's explanation, you come to the conclusion that the employee has in fact engaged in misconduct, The employer may then be able to terminate the employee without giving them any notice. This must be done in writing, and the employer should always give reasons as to why the employer is terminating the employee (Hughes Champion, & Murdoch, 2015).

Application:

Bogdan has violated the terms of the contract of employment. The employment contract states that no employees shall be intoxicated or in as state of drunkenness during the course of his employment. Bogdan has been intoxicated during the course of employment and has been found that he has taken an alcohol to the content of 0.154. The Fair Work Regulations define 'serious misconduct' as willful or deliberate behavior by an employee that is inconsistent with the continuation of the contract of employment. The conduct of the employee that is serous and may cause risk to the employer or health or safety of any person or the reputation, viability or profitability of the employer's business. The Regulations also list the following conduct as being deemed serious misconduct when the employee, in the course of the employee's employment, engages in theft, fraud or assault or the employee being intoxicated at work or the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment. Once the employer has established that, an employee has engaged in serious misconduct, and the employer wish to terminate that employee's employment.

Therefore, Nathan Lion Limited may be able to terminate Bogdan’s contract of employment.

Q15

Issue: The issue is whether there is any employment-based breach has been made by Glanville or not.

Relevant rules:

The subject matter of the case is based on the employment contract. According to the provision, there should be some contract made between the employer and employee (O’Rourke & Antioch, 2016). It is contracted between the employer and employees for maintaining professionalism in the workplace. The terms of the contract are of two types: express and implied. Under this provision, the employees have certain duties to be performed during the working hour (Riley, 2016). In Australian Opthalmic Supplies Pty Ltd. v McAlarv-Smith held that to determine the nature of penalty the court must consider what must be just and appropriate.

Application:

In this case, it has been observed that Glanville was the service manager of a company. He was responsible for all the contracts and he was in charge of keeping the confidential documents. It has been observed that he concocted a separate company while working in another one and tried to take away all the information as well as contact list and necessary documents from the previous company by misusing his post (Quinlan, 2016). Later on, it was founded by the owner of the previous company when a complaint has been lodged by another company Riola.

The law has prescribed certain rules regarding the duties of the employee in the workplace. The duties can be categorized into two parts. The implied duties are :

• He should not go outside the parameters of the employment contract:
• He should not disclose confidential information regarding the company where he is an employee;
• He has to perform his duty in good faith;
• He must take reasonable care during work performance;
• He must obey all the norms that are part of the employment contract (Quinlan, 2016).

The most important things that should be kept in mind, that if the employee made any violation regarding the same, he must has shown some reasonable cause. In this case, it has been observed that Glenville had developed another company with one installer of Commsky Company where both of them were employees. According to law, Glanville is an employee and therefore, he must not disclose the confidential documents of the previous company. He also should not misuse the post for that he is responsible for it.

Therefore, it can conclude that Glanville made a breach regarding the post and infringe the terms of the employment contract.

Q16.

Issue

Whether Jane Reader can bring action against the employer for unfair dismissal.

Rule:

The decision to dismiss an employee is an area of the employment relationship that requires an understanding of a wide range of legislative and other obligations of an employer. The decision is also a significant one in terms of the effect on the employee and the business. Not surprisingly, a significant amount of resources, time and effort needs to be devoted to the associated decisions and processes. Knowing the legal risks and obligations involved is essential for unfair dismissal laws, which are set out in the Fair Work Act 2009 (Thornthwaite, 2016). The Act applies to a large number of Australian employees and generally give those employees the broadest protection from having their employment terminated. Therefore, a good starting point is to consider whether unfair dismissal laws cover an employee. In addition, employees who are covered by awards or enterprise agreements made under the FW Act or its predecessor, irrespective of their earnings, will be covered by the unfair dismissal laws.  Under unfair dismissal laws, an employer cannot dismiss an employee unless they have a valid reason connected with the employee's conduct, capacity or because of a genuine redundancy. In addition, if the dismissal is related to conduct or capacity, it may still be unfair if the employee is not notified of the reason for their dismissal (Banker Byzalov, & Chen, 2013). The employee should be  given an adequate opportunity to respond to those reasons, not provided with a warning in certain circumstances, not allowed a support person to assist them in discussions about the hearing or if the dismissal was otherwise procedurally unfair. A valid reason is one that is sound, defensible, and related to the employment (Wilson & Pender,2016). Except for serious misconduct (e.g. theft), if dismissing an employee because of inadequate performance or misconduct, an employer may need to establish more than one incident of misconduct or poor performance to justify the dismissal. In the case of the valid reason, employers need to establish the misconduct on the balance of probabilities (Howe, 2013). A rigorous investigation of the circumstances is often a key element of satisfying that burden of proof.

Application:

In the given case even if the employer that is Wyndham Lodge Pty Ltd has given notice of termination and cheque for final settlement, the employer has not mentioned the cause of her terminations and has not given her a fair chance to defence herself. The employer should give a cause for the termination and shall give a fair chance to defense herself for the given cause for which she has been terminated from her employment. The employer did not follow the rule of natural justice, which says that everyone should get a fair chance to defend himself from being accused (Van Gramberg, 2016). As per the Fair Works Act of Australia, under unfair dismissal laws, an employer cannot dismiss an employee unless they have a valid reason connected with the employee's conduct, capacity or because of a genuine redundancy. In addition, if the dismissal is related to conduct or capacity, it may still be unfair if the employee is not notified of the reason for their dismissal. The employee should be  given an adequate opportunity to respond to those reasons, not provided with a warning in certain circumstances, not allowed a support person to assist them in discussions about the hearing or if the dismissal was otherwise procedurally unfair. A valid reason is one that is sound, defensible, and related to the employment. Except for serious misconduct (e.g. theft), if dismissing an employee because of inadequate performance or misconduct, an employer may need to establish more than one incident of misconduct or poor performance to justify the dismissal. In the case of the valid reason, employers need to establish the misconduct on the balance of probabilities. A rigorous investigation of the circumstances is often a key element of satisfying that burden of proof.

Therefore, Jane Reader have the grounds that the employer has not mention any cause for her termination and has not given a fair chance to defend herself. Thus, Jane Reader can bring action against the employer for unfair dismissal.

Q17.

Issue:

Whether Dr Garside have any grounds for arguing that the change in policy is discriminatory.

Application:

Unlawful discrimination is established if the complainant proves that there was a specified ground of discrimination and that the discrimination fell within the definition of discrimination under the FWA which describes the area of area discrimination (Puhl, 2015). To establish direct discrimination, a particular ground for discrimination must be established and a less favourable treatment must be established, i.e. some sort of detriment this requires a comparison between the claimant and a real or hypothetical person (Pijoan, 2014). There must be a causal link between the ground for discrimination and the detriment. The basis for comparison must be the same or not materially different, i.e. apart from the ground of discrimination, the motive or intention do not have to be proved and whether or not there is discrimination is an objective test as stated in Burns v Media Options Group Pty Ltd (FCCA 79, 2013). For discrimination to be unlawful, the specific ground of discrimination must have occurred in a prescribed area such as employment, education, provisions of goods and services, accommodation, registered clubs (Cotter, 2016).

Q18.

Issue:

Whether Dr. Garside has any grounds for arguing that, the change in policy is discriminatory.

Rule:

The employer has the responsibility towards his employees to provide a work place, which is safe and healthy. Employers have the duty to the employees to look after the health safety and welfare. However, if the employers cannot provide a safe working environment and the employees receive injuries, in such case the employer is made liable (Healy, 2016). The employers are impliedly liable for the injuries sustained by the employees in the course of employment due to the lack of safety measures. Therefore, the employer is at risk if he does not take appropriate measure regarding the health and safety of the workers and will be made liable for the failure to act as per the guidelines of the provisions of the legislation (Forrester & Griffiths, 2014). The employer shall monitor the risk involved in the work place and should take every initiative to reduce the risk. The cost of reducing the risk should be borne by the employer and should take reasonable steps to maintain the safe work environment. The employer has the duty to provide a safe workplace to its employees. There may be certain type of employees who will require more care and supervision and the employer has the responsibility to provide such supervision such as the disabled worker, the pregnant employees and unskilled and illiterate workers. The employer must have regular contacts with its employee either through himself or through his elected representatives. The employer must provide awareness to its employees with safety measures and safety issues. The employer should maintain a record about the past incidents regarding safety issues to be used in future for its reference. The Work Health and Safety Act 2011 guide the employers through a set of guidelines. The employers shall comply with the given guidelines and ensure to maintain a proper health and safety standard in the workplace (Mossialos, 2015). The employers must consult with other workers or safety representatives in the organization for the betterment of the workplace with regard to safety, health and welfare of the employees (Holt & Allen, 2015). The workers are not bullied in the workplace. The term bullied is defined under S. 789D of the Act. In Bowker v. DP World Melborne, the court held that when something happens to anyone in the workplace, or during the course of employment but not in the workplace.

Application:

The driver of the front-end loader who was the employer of the Pioneer should be liable for the injury. The driver was the acting as the agent of the company and so the company as principal to the agent is vicariously liable for the act of the agent. As per the Work Health and Safety Act, the employer of Alex that is Byles Pty Ltd shall be liable for the injury sustained by Alex.

Conclusion:

Thus, the employer should be responsible for the injury caused to the employee under the Work Health and Safety Act.

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