They judged this case on Mines Legislation to avoid prosecution when it wasn't
This Article was based originally on a thesis paper for the university to be judged for the basis of my knowledge to obtain an Advanced Diploma in Occupational Health and Safety and 2 years later it became a quest for compensation and acknowledgement of corruption from within Government departments and Unions, and, how Federal transport Laws are being negated in the name of achieving KPI'S for the mining industry at the cost of lives of heavy transport workers working excessive hours in Western Australia due Govt Agencies negating their responsibility of Duty of Care in the way the the road rules are being Regulated and inforced, (being the log book hours for truck and bus drivers working in and around mining and construction in the North West of Australia) a story of a Chinese Mining Company constructing & producing the largest Magnatite Mine in the world -
I became an Ambassador for the White Ribbon Foundation for the protection of women in the workplace speaking at Perth Universities,But ask yourself this one question when the system is corrupt and Bias against you where do you go as in this case which is based soley on the opinions of the writer, it is a story of one mans fight against a Chinese Mining Company and the biggest legal Law firm in Western Australia, Blake Dawson protecting the interests of the Chinese and the corruption of Government Agencies, over a 2 year period that led us (me studying full time & facing Barristers and Lawyers from the top legal firm in WA to present the case to Appeal Court of three judges on the bench) for justice.
This is my story..........The main points were Sexual Discrimination of a sole women working in a mining camp in a group of 20 or so males being asked for sexual favors, a quid pro quo for advancement, Hours of work for Heavy transport workers working in the mining Industry, against the legislation for working hours driving which is governed by Work Safe not the police in Log books, and the non payment of wages against overtime.
We are now moving towards a Harmonization of Occupational Health and Safety Laws across Australia & New Zealand, and a move in the right direction for producing a safe work place, I first started years ago as a safety rep with a petroleum company and progressed on with a cert 4 diploma in Work Safe OHS Legislation, hungry for more knowledge on how the whole system worked I decided to take on a case and represented a Lady that worked in the Mining Industry that was being Sexually Discriminated, and, was part of a group of 20 staff in her work group being under paid and forced to work excessive hours living away from home in a camp environment, working 2 and 1 and 4 and 1 rosters.A case that I held dear to me as I was a Ambassador for the White Ribbon Foundation for the protection of Women against violence and gave talks at University on my experience as a construction worker and my legal experience in the face of changing legislation. The Documents below show a few papers relating to the case and the Bias shown by the Fair Work Australia, the thing is it is registered in a case file and if some one uses this case it can be used as reference for another case that one day may change the system of fair play and save
BLAKE DAWSON SOLICITORS (Largest legal firm in Western Australia)
Consent required for arbitration by Fair Work Australia pursuant to a modern award In brief In Kent v CITIC Pacific Mining Management Pty Ltd [2011] FWAFB 7009 a Full Bench of Fair Work Australia (FWA) refused Ms Kent permission to appeal against a decision dismissing her application to have a dispute arising under the applicable modern award arbitrated because FWA had no power to arbitrate the dispute. _______________________________________________________________________________ Facts Ms Kent applied to FWA under section 739 of the Fair Work Act 2009 (Cth) (FW Act) for determination of a dispute between herself and her employer, CITIC Pacific Mining Management Pty Ltd (CPM). Ms Kent claimed the dispute related, among other things, to the hours she was required to work. The relevant dispute settlement procedure (contained in the Mining Industry Award 2010) provides that: the parties may agree on the process that FWA can use to determine a dispute, including, for example, "consent arbitration" (clause 9.3); and FWA can exercise methods of dispute resolution "permitted by the Act" where the matter remains unresolved (clause 9.4). Following an unsuccessful conciliation, Ms Kent requested that FWA deal with the dispute by arbitration. CPM did not consent to arbitration. At first instance, Commissioner Williams found that section 595 and Part 6-2 of the FW Act operated to allow FWA to deal with the dispute by arbitration only if the Mining Award permitted arbitration to occur. Williams C went on to find that the dispute resolution clause in the Mining Award expressly provides only for arbitration by consent. In the absence of the consent of both parties, Williams C found that FWA did not have power to arbitrate the dispute. The Full Bench decision The Full Bench upheld Williams C's decision finding that: Clause 9.4 of the Mining Award does not confer power on FWA to arbitrate a dispute unless the parties consent; and The decision at first instance was not affected by error. Consequently, the Full Bench refused Ms Kent permission to appeal. 651976407_1 8 Lessons for employers Depending on the terms of the relevant disputes procedures, an employer can refuse to consent to FWA arbitrating a particular dispute raised by an employee. Employers should seek advice before agreeing to allow FWA to arbitrate a dispute. Employers should consider the dispute settlement provisions contained in their enterprise agreements and any applicable modern awards carefully so they understand their rights and obligations. Care should be taken in drafting dispute settlement procedures in enterprise agreements to ensure that they do not go further than is necessary or as agreed between the parties. Authors Davies, Tony Partner tony.davies@blakedawson.com Chapman, Shannon Senior Associate shannon.chapman@blakedawson.co
OMBUSMAN (Western Australia)
[2011] FWAFB 7009
FAIR WORK AUSTRALIA
DECISION
Fair Work Act 2009
s.604 —Appeal of decisions
D. Kent v CITIC Pacific Mining Management Pty Ltd
(C2011/438)
JUSTICE GIUDICE, PRESIDENT SENIOR DEPUTY PRESIDENT DRAKE COMMISSIONER BLAIR
MELBOURNE, 26 OCTOBER 2011
[1] This is an appeal, for which permission is required, by Ms D. Kent against a decision by Commissioner Williams on 24 June 2011. [2] On 24 February 2011, Ms Kent lodged an application under s.739 of the Fair Work Act 2009 (the Act). In the application Ms Kent sought to have Fair Work Australia deal with a dispute between her and her employer, CITIC Pacific Mining Management Pty Ltd (the respondent). The application referred to dispute resolution provisions in the Mining Industry Award 2010 , her contract of employment and the Mines Safety and Inspection Act (WA) 1994 (Mines Safety Act). The dispute was said to be about minimum weekly hours under the Act, accuracy of records under the Act, the exercise of rights under the Mines Safety Act and claims of victimisation. [3] Conciliation was unsuccessful and Ms Kent then sought to have the Commissioner arbitrate the matters in dispute. The Commissioner directed the parties to provide him with written submissions on the powers available to the tribunal. After considering the submissions, the Commissioner decided that he had no power to arbitrate in relation to Ms Kent’s application in the absence of the respondent’s consent. It is from that decision that Ms Kent seeks permission to appeal. [4] It is clear, as the Commissioner found, that Fair Work Australia can only arbitrate where it is specifically empowered to do so. That conclusion is based on the reasoning of a Full Bench inWoolworths Ltd trading as Produce and Recycling Distribution Centre. No attempt was made by Ms Kent to challenge the correctness of that decision and we accept that it is correct. [5] Clause 9.4 of the Mining Industry Award 2010 does not confer power on Fair Work Australia to arbitrate in relation to a dispute within the terms of the provision unless the parties consent. There was no consent in this case. Indeed, Ms Kent submitted that she was not covered by the award. [6] It was not submitted that there is a relevant enterprise agreement which might confer power on Fair Work Australia to arbitrate. [7] Ms Kent submitted that her contract of employment did not contain a provision empowering Fair Work Australia to arbitrate. [8] While Ms Kent submitted that neither the award nor any enterprise agreement covered her, and that her contract of employment did not contain a relevant dispute settlement provision, she nevertheless relied upon some general power in Fair Work Australia to settle disputes. This submission was put forward on the basis that if the dispute could not be resolved by Fair Work Australia, Ms Kent would have no right of redress for any breaches of the National Employment Standards. This submission seems to ignore the enforcement provisions in the Act and the role and functions of the Fair Work Ombudsman. But whether the submission is correct or not, it does not provide a basis for the exercise of arbitration powers. [9] The Commissioner’s decision is not affected by error. This is not an appropriate case in which to grant permission to appeal. Permission is refused. PRESIDENT
Appearances:
D Kent on her own behalf. J Blackburn of counsel for CITIC Pacific Mining Management Pty Ltd.
Hearing details:
2011. Perth. September,13. Decision Summary
INDUSTRIAL DISPUTE – dispute resolution procedure – arbitration – ss.739, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision refusing to arbitrate dispute – first instance decision held no power existed to arbitrate absent respondent’s consent – appellant relied on some general power for FWA to settle disputes – submitted that without dispute resolution power, no right of redress exists where NES breached – FWA can only arbitrate where it is specifically empowered to do so – appellant’s submission ignores enforcement provisions in Act and role and functions of FWO – no error established – leave to appeal refused – appeal dismissed.
Appeal by Kent against decision of Williams C of 24 June 2011 [[2011] FWA 4004 <http://www.fwa.gov.au/decisionssigned/html/2011fwa4004.htm>] – Re: Kent v CITIC Pacific Mining Management P/L
C2011/438
[2011] FWAFB 7009
Giudice J Drake SDP Blair C
Melbourne
26 October 2011
Citation: Appeal by Kent against decision of Williams C of 24 June 2011 [[2011] FWA 4004] – Re: Kent v CITIC Pacific Mining Management P/L [2011] FWAFB 7009 (26 October 2011)