Australian Consumer Law And Employment Law In Australia

Provisions of the Australian Consumer Law

Australian Consumer Law is a national law. It is enacted to secure the interest of the consumer and ensure the fair trading policy. The provision of the Australian Consumer Law is derived from schedule 2 of Competition and Consumer Act 2010. Section 18 of the Consumer Law deals with the conduct of the corporation regarding trade and commerce and leads towards an objective for secure the consumers from deceptive act of the corporation. If deceptive act is proved, remedial provisions are available to this respect (Australia, 2009).

Before the application under section 18 of the Act, the following are to be established: 

It is to be shown that in a transaction, a disputed conduct has been made.

The conduct should be deceptive in nature.

There must be reliability on the impugned conduct by the claimant.

It is to be proved that the claimant has suffered serious loss due to this (Sappideen O’Grady,& Riley, 2016).

Under Australian law, awards are one kind of document that consists of basic term and conditions regarding the provision of employment. The doctrine of awards is to be maintained in all national workplace. Awards are mainly of two types: Modern awards and award on transitional instruments (O’Leary, 2017).

The objective of the modern award is to draw a safety net for the betterment of the employment conditions. It controls the relation system of workplace. Instances of the modern awards include consultation, kinds of employment, remuneration system, allowances and the provision regarding the transitional system. The object of the award on transitional instrument is aiming for the commission regarding the industrial relation of Australia. Federal awards are enacted in 2006. It issues the review process of the enterprises and public sectors (Walsh, 2015).

Bargaining is categorized in Australia under the Fair Work Act 2009. A negotiation among the employer, employees and bargaining representatives are made by way of this process. The objective of the bargaining is to make a contract through signing the enterprise agreement. The negotiation is important as the agreement comprised of terms of the employment. Employers are the bargaining representative in the process of bargaining (Freedland et al., 2016). The employer is required to provide information which has the relevancy and the information should be disclosed as a whole. The disclosed information can be of any type. It is to be decided by the employer about the relevancy of the information regarding bargaining process.   It is the utmost duty of an employer to attend the meetings and be punctual while disclosing information. If the other bargaining representatives proposed anything, the employer needs to give response. The employer is required to explain the reason behind the response. The employer should not behave in any unfair way (Vettori, 2016).

Awards and Award on Transitional Instruments

An employer is required to represent the process through good faith. There are some requirements that can make the agreement process fair (Stewart, 2016). The bargaining representative must follow the rules that are as under:

Attend the meeting as and when required and take participation in it prudently.

It is his duty to disclose all information except those that are confidential in nature.

The behavior of the employer will be treated in good faith if he positively response the proposals that are made by other representatives regarding the enterprise agreement.

The employer should not respond negatively about the proposal and there must be some reasons behind every acceptance or denial (Adamson, 2017).

The employer should take reasonable care so that the value of others must not undermine or the freedom of the association must not deprive.

Fair Work Act 2009 provided enough principles to ensure the working clarity which consists of many provisions. Flexible working arrangements are one of it. It helps the employees to improve a balance between the profession and personal life. The objective it is to increase the terms of the employees. If the company provides enough support to the employees, there will definitely be the increment regarding the productivity of the work (Colvin, 2014).

An employee can make a request if:

He has a responsibility about his child,

He is a disabled one,

He is a senior citizen,

He is subjected to some violence from others (Pekarek, 2017).

An employee is entitled to the following regarding the flexible working arrangement:

One can change the shifting time,

One can opted for the job sharing,

One can make request for the overtime,

One can request for the week off in lieu of payment for the overtime,

One can also make request for the venue of the workplace. He can choose home work process.

Compassionate leaves are granted for personal requirements or circumstances. In Australia, these type of leave can be granted if any family member of an employee dies or suffering from irrecoverable disease. The family member should be the immediate one to the employee. Immediate members include the spouse or child or any members of blood relation. The immediate members consist of the step-relations (James & Ombudsman, 2015). The adopted relations are included too. Apart from this, an employee can pray for the leave regarding his or her other relatives who are not particularly his or her immediate member with the consent of the employer (Byrnes, 2017).

Bargaining under the Fair Work Act 2009

Time for leave is specified in this respect. An employee can be taken a time for a period of two days for the immediate members. These two days can be on continuous base or separate days or any other day as agreed by the employer and employees (Wilson & Pender, 2016).

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 have 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.

Flexible Working Arrangements under Fair Work Act 2009

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.

Conclusion:

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

Issue:  The issue is whether the legal rights of Annie and Maria get infringed.

Relevant rules:

The question is based on the Fair Work Act 2009. In Australia, there are certain provisions regarding the benefit of the employees. In Australia, there are relevant provisions regarding leave that can be asking in case emergency cases. Two types of leaves have been prayed here. The first one is Carer’s leave and the second one is maternity leave.

Application:

In Australia, Fair Work Act 2009 consists with some provision securing the interest of the employees. It is a national law that ensures certain benefit to the employees. It is the utmost right of an employee to ask for leave in case of emergency. Leave is important to maintain a proper working condition within the work place. A company that offers the working benefit to its employees is the suitable one. There are certain kinds of leaves that are providing to the employees such as annual leave, sick and carer’s leave, compassionate leave, maternity and parental leave, public holidays and so on. In Australia, the casual employees are also enjoying the leave benefit. In this case, it has been observed that Anne, who is a worker in Figjam Pty ltd., asked for the Carer’s leave to assist her daughter in Sydney. However, the leave was not granted by the supervisor (Martinov-Bennie et al., 2014). There is another case of Maria, who is a colleague of Anne. Maria had been taken maternity leave and while returning back to the office, she observed that she was shifted to a more strenuous post without any notice and when she asked her supervisor, she got no reasonable reply.

Compassionate Leaves in Australia

Section 12 and section 97 of the Fair Work Act 2009 deals with Carer’s leave. The sections have provided the employees to take time off for the following reasons: illness, caring responsibilities and sudden emergencies. Carer’s leave can be of paid or unpaid. The objective of this provision is to secure the interest of the employees by supporting them when they need it. it is a fact that emergency may occur at any time and it is the utmost duty of the company as well as the laws to provide them support at that time. Hence is this provision. Carer’s leave is applicable to all national employees irrespective to any employment agreement or contract. There is a necessity for Anne to take time off to assist her daughter. According to the provision of Fair Work Act, it is Anne’s right to ask for leave under section 12 and section 97. Apart from the Fair Work Act 2009, the Sex Discrimination Act 1984 has also implemented a provision that prohibits any authority to violate the rights of the employees who seek leave on the ground of emergency or maternity problem. The Work Health and Safety laws are also provided much responsibility and strategies regarding the same. Therefore, laws are giving Anne a right to take a leave as there is an emergency due to her daughter’s shifting to Sydney and she should be granted a leave (Forsyth, 2017).

Maria was also victimized by the acts of the supervisor who demoted her from her post without serving any notice. It is to be noted that whether there is any express provision in the employment contract regarding the demotion of an employee. Under the Security Services Industry Award 2010 protects the rights of the employee regarding the demotion. It is the primary duty of an employer to show reasonable cause to the employee regarding his or her demotion. Demotion is a sensitive issue. It harms the personality of an employee. Maria was in maternity leave. Under the laws of Australia, maternity or paternity leave are the basic rights of an employee (Riley, 2016). It is a serious issue if the employer will fail to understand the position of the employee and demoted her from her post that has recently back to the office after a maternity leave. It is also a sheer failure of an employer to give her strenuous job without considering her state of mind and condition. In Buchanan v Serco Australia Pty Ltd [2012] FWA 1, the ground regarding the Fair Work Act has been established.

Legal Means of Creating Entitlement to Paid Leave for Live Organ Donation

Conclusion:

Therefore, it is a right of Maria to ask for the reason for demotion as the employer did not serve any notice regarding the same and laws give Anne to grant carer’s leave because these are their legal rights.

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.

Conclusion:

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

Issue: 

The issue is whether Bradley is subjected to any discrimination.

Relevant rules:

The case is based on the principle of age discrimination regarding the post of pilot in the Army Force in Australia. The relevant Act regarding the case is Human Rights and Equal Opportunity Commission Act 1986. This Act has provided a provision regarding the inquiry on discrimination complaint. Section 8(6) of the Act has conferred necessary power relating to the same.

Application:

In this case, there has been a provision regarding the inherent requirement of a job. Mr. Bradley was dejected from his post of helicopter pilot just because of age limitation. According to the provision of Human Rights and Equal Opportunity Commission Act 1986, in any job, inherent qualities are required to be fulfilled. The requirements are as follows:

• Perform the tasks perfectly;
• Team work;
• Capability to finish a job safely.

There is no age requirement that is mandatory in nature (Freedland, 2016). The present case is based on the subject of age discrimination. Australia is one of the major supporters of the human rights. It is one of the founder members of United Nation’s human rights wings. In Commonwealth of Australia v. Human Rights and Equal Opportunity Commission, it was observed that there should not be any discrimination regarding the age in case of recruitment in Defense Force. According to Justice Wilcox, an applicant for the post of defense pilot ought to be assessed on his personal merits. If they can show their capability, they should be selected for the respective post. One should not be denied or humiliated on the basis of age differences. In the inherent requirement provision of Human Rights Act, there is no provision regarding the age. It is not mandatory for the applicant to satisfy the age criteria for the post (Giubilini, 2015).

In this case it has been observed that Bradley was denied from the opportunity to appoint in the post of helicopter pilot due to his age variation. Mr. Bradley can claim damage from the authority regarding the age discrimination if he can comply with the other abilities. It is also seen that there is a provision regarding the waiving the age criteria and the same had not been applied on him. If he had shown sufficiency in regards to all criteria, the age section should be waived for the interest of justice. Army official were responded that age is the main restriction for his post and this is one of the inherent requirements too. However, the rule is if anyone can show his ability to fill all the criteria of job requirement, he can be held eligible for the same post. It will be a stereotypical argument if a person cannot be appointed for the post for pilot on the basis of age deficiency. The Human Rights Council had supported the conception by saying that age is not among the inherent requirement of job. Inherent requirements are intrinsic in nature.  

Conclusion:

Therefore, it can be stated that on the basis of above named provision, Mr. Bradley can argue on the discriminatory ground that his denial from the post due to age deficiency is not proper. He can claim compensation for losing the opportunity to recruit for the post of aviation pilot.

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.

Issue:

The issue whether the company SteelOne Pty Ltd is justify regarding the dismissal of Mr. Blazic from his post.

Relevant rules:

The case is based on dismissal law that is one of the much discussed chapters of Fair Work Act 2009. An employee can be terminated from his or her post if the provision regarding the termination of job is satisfied. It is mentioned under the Act that a notice is to be served to the workers or employees. Serving notice is the fundamental right of the employee. There are certain provisions in the employment law regarding the payment instead of notice to the employees.

Application:

In this case, two provision of the Fair Work Act 2009 have been observed. The first one is based on the termination of an employee from his post and the second one is the provision regarding the paying an employee in place of serving notice. In this case, it has been observed that the company in which Blazic is an employee got terminated and the company paid him certain amount in lieu of notice. It is to be traced out whether the company is right or justified regarding the same or no (Williamson, 2015).

Under the Fair Work Act 2009 the employers are provided with some power regarding the employment including terminates an employee. However, there are certain circumstances mentioned under the Act that must be abided by the employer. They are:

• If the employee has done some serious misconduct against the interest of the workplace;
• If the employee fails to show quality performance;
• If the behavior of the employee is ferocious in nature and goes against the policies of the company;
• If the employee denies to follow up the company’s rules and regulations;
• If there are any redundancies regarding the post of the employee.

In this case, it has been observed that Mr. Blazic was an employee in the company who was also an influential union leader. Later on, he indulged in dispute with some other members and tried to break the unity among the co-workers. The higher authorities of the company warned him for several times but all were in vain. He continued to misbehave with others. Company then regulates certain norms that were mandatory in nature and it was notified that no one will be allowed to disobey the same. However, on repeated request also, Mr. Blazic did not respond positively and violated the same in daily manner. According to the Fair Work Act, every worker should be given an opportunity to show his competency and it is the duty of the employer to give the employee a warning. It is clear from the case that there has been a serious misconduct happened on the part of Mr. Blazic.

Under the Fair Work Act 2009, an employee can be terminated from his post if there is any serious breach of conduct performed by him. There are certain provisions present that make an act harmful against the interest of the company. In Ranch v. Brown (1995) IR 308, it was mentioned that it is important to create legal relationship that must not be in any way harmed intentionally. If an employee breaks the policy of the company willfully and does not working according to the provision of the employment contract it can become a serious misconduct. It can also be held as misconduct if the conduct becomes a potential threat regarding the reputation or profitability of the employee (Soldan & Nankervis, 2014).

The employment law of Australia has made a payment provision regarding the non-serve of notice to the employee. It is a duty of the employer to pay the employee that is an immediate compensation to the employee. In this case, the company has provided the same amount to Mr. Blazic soon after terminate him from the post (Vosko  Noack, & Tucker, 2016).

Conclusion:

Therefore, it can conclude that the act of the company is justified enough as the company has followed up the rules of the Fair Work Act and the provision of Employment law successfully.

Issue: 

The issue is that whether Freya is been dismissed unfairly.

Relevant rules:

The subject matter of the case is based on the provision of the Fair Work Act 2009 regarding the unfair dismissal of a job. As per the provision of the law, an employee should not be dismissed from his post without any reasonable cause. Even if there is any redundancy regarding the post of the employee, he will not be terminated from his post. Under the act, certain grounds are mentioned that are the only criteria for terminating an employee. In case of non-maintainability of these provisions, the dismissal would be considered as unfair (Corones, 2014).

Application:

In this case, it has been observed that Freya who is an employee in a bank had served a false medical certificate after taking a break from the office and the false and misleading medical report was denied by him for the first time. Later on, he accepted the matter by written notice. He holds the bank responsible for the lunch meal and pointed out some weak points of the bank by written letter. According to the termination provision of the Fair Work Act, if there is any serious breach occurred by the employee, he can be terminated from his post. It is the utmost duty of the employer to look into the matter whether there is any breach has happened by the employee or not (Australia & Miller, 2016). In Fishley v Inclusion Works Association Inc [2013] FWC 2104, it was held that the claim for bullying against the authority is unsubstantiated and the court had pronounced its decision in favor of the Authority.

As per the definition of the serious misconduct, it is to be proved that the company has suffered much problem relating to the acts of the workers. In this case, it can be notified that the unethical act of the worker by serving false document can possibly demoralize the reputation of the company or bank. Moreover, it is seen that Freya had failed to show reasonable care regarding the employment rule. When the office authorities called him, he did not positively reply them back. It is the duty of the employee to co-operate the employer with all possible scope. Freya had misbehaved with the employer by denied his false action regarding the medical certificate. The employer had given him many opportunities by conducting meeting but all were in vain as Freya had avoided all the meetings and even did not responded positively by phone. The employer of the bank had provided him sufficient opportunity by make him a call. The banking authority had also posted a notice regarding the same.

Australian Security & Investment Commission has prescribed certain codes to determine the conduct of the employees. It provides certain norms that ensure the professionalism within a workplace. If an employee falsify his report for the excuse of being sick and take leave from the office on that ground that could lead to a serious breach that is against the provision of the Fair Work Act as well as banking code of conduct (Bailey & Peetz, 2015).

Conclusion:

Therefore, it can be concluded that the act of Freya is unfair and against the policies of the banking code of conducts. The company has completed its duties regarding the same. However, it is the failure of Freya that he could not able to respond positively. Thus, the termination of Freya is fair enough.  

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