Lawrance v Toowoomba Regional Council
[2016] QIRC 146
•22 December 2016
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Lawrance v Toowoomba Regional Council [2016] QIRC 146 |
PARTIES: | Lawrance, Clynton v Toowoomba Regional Council |
CASE NO: | B/2012/51 |
PROCEEDING: | Application to amend or declare void a contract |
DELIVERED ON: | 22 December 2016 |
HEARING DATES: | 26, 27 September 2016 |
HEARD AT: | Brisbane |
MEMBER: | Industrial Commissioner Neate |
ORDERS: | 1. The contract between the Toowoomba Regional Council ("TRC") and Clynton Lawrance for the period between 15 March 2008 and 30 September 2012 is amended by adding a clause to the effect that, in addition to any remuneration paid by the TRC to Mr Lawrance under the contract, the TRC is to pay Mr Lawrance the sum of $83,000.00. 2. The TRC is to pay Mr Lawrance the sum of $83,000.00. 3. Payment is to be made within 28 days of the release of this Decision. |
| CATCHWORDS: | INDUSTRIAL LAW - APPLICATION TO AMEND OR DECLARE VOID A CONTRACT - contract for services found to be an unfair contract - matter remitted by the Industrial Court of Queensland to the Commission to make an appropriate order under s 276(5) of the Industrial Relations Act 1999 - reasons for contract being held to be unfair - whether contract should be declared void (wholly or partly) or amended - preferable approach to making appropriate order about payment of an amount for contract amended or declared void - comparison with what a contractor might have earned as an employee in a comparable position under an award - factors to be adjusted for contract for services - adjustment to take account of Applicant being illiterate and innumerate - whether adjustments should be made for other factors including his receipt of a Disability Support Pension, his failure to declare some income for taxation purposes – components of calculations of amount to be paid – whether interest should be awarded |
| CASES: | Industrial Relations Act 1999 (Qld) ss 71, 276, 670 Australian Workers Union v Department of Primary Industries and Resources SA [2007] SAIRC 60 |
| APPEARANCES: | Mr R Reed, Counsel instructed by Aden Lawyers for the Applicant Mr K Watson, Counsel instructed by Clifford Gouldson Lawyers for the Respondent |
Decision
Each person who is appointed as a Queensland Industrial Relations Commissioner takes an oath or an affirmation that they will "do equal justice to all persons and discharge the duties and responsibilities of the office according to law" to the best of their knowledge and ability without fear, favour or affection.[1] That oath or affirmation prescribes both the nature of the Commissioner's role and the way in which their duties and responsibilities will be discharged. Like footings in a building, it underpins and describes a Commissioner's role but is rarely seen after the Commissioner is sworn in.
[1] See Oaths Act 1867 (Qld) ss 3, 5.
The requirement to do "justice … according to law" is a given. Usually the relevant law can be identified and applied to the evidence before the Commission. Sometimes there are disputes between parties about the interpretation of some words and phrases in a statute or industrial instrument. Sometimes there are disputes about the credibility and implications of some of the evidence. But there is usually no controversy about the way in which the matters in issue are to be decided.
This case, however, brings into focus questions about how the Commission is to do "justice … according to law." The facts of the case are unusual and, as a consequence, there is controversy about:
(a) how industrial instruments can be applied by analogy to overcome the unfairness of a contract for services under which Clynton Lawrance worked as the caretaker of a local government waste disposal facility (a "Tip"); and
(b) whether a sum that would otherwise be payable to remedy the unfairness should be reduced by reference to obligations and criteria under a range of State and Commonwealth legislation.
Although the Commission is not relieved of its obligation to "do equal justice" to the parties, the history of this case shows that it is difficult to determine a just outcome which can be explained and defended as being "according to law."
At its heart is Mr Lawrance's claim that he is entitled to some compensation in relation to a contract for services which has been held to be unfair. The respondent, Toowoomba Regional Council ("TRC"), disputes his claim. It submits that there should be no order in favour of Mr Lawrance and that his application should be dismissed. If there is to be an order, the parties disagree about how the matter should be resolved.
The course of the litigation
The case has proved to be time-consuming and hence expensive. It commenced with an application made on 8 October 2012.
For the purpose of these proceedings the relevant subsections of s 276 of the Industrial Relations Act 1999 ("the Act") provide:
"276 Power to amend or declare void contracts
(1) On application, the commission may amend or declare void (wholly or partly) a contract if it considers—
(a) the contract is—
(i) a contract of service that is not covered by an industrial instrument; or
(ii) a contract for services; and
(b) the contract is an unfair contract.
…
(2) In deciding whether to amend or declare void a contract, or part of a contract, the commission may consider—
(a) the relative bargaining power of the parties to the contract and, if applicable, anyone acting for the parties; or
(b)whether any undue influence or pressure was exerted on, or any unfair tactics were used against, a party to the contract; or
(c) an industrial instrument or this Act; or
(d) the Queensland minimum wage; or
(e) anything else the commission considers relevant.
…
(4) The commission may consider a contract to be an unfair contract if it considers the contract—
(a) was an unfair contract when it was entered into; or
(b)became an unfair contract after it was entered into because of the conduct of the parties, or a variation to the contract or for any other reason it considers sufficient.
…
(5) The commission may make an order it considers appropriate about payment of an amount for a contract amended or declared void.
…
(7) In this section—
…
unfair contract means a contract that—
(a) is harsh, unconscionable or unfair; or
(b) is against the public interest; or
(c) provides, or has provided, a total remuneration less than that which a person performing the work as an employee would receive under an industrial instrument or this Act; or
(d) is designed to, or does, avoid the provisions of an industrial instrument."
A Deputy President of the Commission heard the case on 23 and 24 May 2013. Three sets of written submissions were provided in July and August. The Deputy President released her decision on 18 November 2013 and made the following orders: [2]
[2] Lawrance v Toowoomba Regional Council (B/2012/51) [18 November 2013] - decision
(a) The Commission declares that the contract for services between the Applicant and the Respondent in force between 15 March 2008 and 30 September 2012 (the TRC contract) was an unfair contract for the purposes of s 276 of the Act;
(b) The Commission declares that the TRC Contract is void ab initio in so far as it provided for a total remuneration to the Applicant less than that which a person performing the work under the TRC Contract as an employee would have received under the Toowoomba Regional Council No 2 Employees' Certified Agreement and/or the Toowoomba Regional Council No 1 Employees' Certified Agreement and/or the Local Government Employees (excluding Brisbane City Council) Award - State 2003 together, the relevant industrial instruments, as applicable from time to time;
(c) The Commission orders the amendment of the TRC Contract to provide for payment of remuneration to the Applicant in accordance with the remuneration payable to a corresponding employee under the relevant industrial instrument;
(d) The Commission orders that the Respondent pay the Applicant the sum of $215,000.
Appeals against that decision were heard by the Industrial Court of Queensland on 3 March 2014. On 5 August 2014, Martin J delivered his decision allowing the appeal in part, and setting aside Orders (b), (c) and (d) made by the Deputy President. [3]
[3] Toowoomba Regional Council v Lawrance [2014] ICQ 025.
In his reasons for decision, Martin J stated that:
(a) the question to be asked is whether or not an award, properly construed, could have applied to the working relationship between Mr Lawrance and the Council;[4] and hence consideration should have been given to the applicability or inapplicability of the Supported Wage Awards;[5]
[4] Toowoomba Regional Council v Lawrance [2014] ICQ 025, [24].
[5] Toowoomba Regional Council v Lawrance [2014] ICQ 025, [24].
(b) consideration should have been given to the issue of Mr Lawrance's capacity to perform the range of duties to the level of competence required within the class of work for which he might be engaged under the relevant Award;[6]
[6] Toowoomba Regional Council v Lawrance [2014] ICQ 025, [26].
(c) the operation of the Supported Wage Awards requires an assessment of the productive capacity of the employee in accordance with the supported wage system as set out in the Award (and no such assessment was made in this case);[7]
[7] Toowoomba Regional Council v Lawrance [2014] ICQ 025, [27].
(d) s 94 of the Social Security Act 1991 (Cth) does not purport to restrict the recipient of a Disability Support Pension to working for less than 15 hours a week; rather, if a recipient was to work more than 15 hours a week then that might have some effect on the continuing eligibility for a pension but it does not mean that a person receiving such a pension is restricted by that receipt to a certain number of hours work a week; and this is a matter which would need further consideration in light of the orders which will be made;[8]
[8] Toowoomba Regional Council v Lawrance [2014] ICQ 025, [29]-[30].
(e) there are provisions under the Social Security Act 1991 for the recovery of benefits paid when compensation has been awarded to a recipient, but it had not been demonstrated that the Deputy President erred by not making allowance for the Social Security Act payments.[9]
(f) because there was a chance that, had the Local Government Employees (Excluding Brisbane City Council) Award - State 2003 ('the Award') applied, the Council could (though not necessarily would) have entered into an agreement with Mr Lawrance so that work on Saturday and Sunday would have been paid at ordinary rates rather than as overtime, the chance that that might have occurred should have been taken into account when assessing the amount paid to Mr Lawrance;[10]
(g) in making an order for payment that the Commission "considers appropriate," the Commission should take into account any specific circumstances that apply to the Applicant such as any medical or intellectual restrictions (e.g., a person who, for medical reasons cannot work more than a limited number of hours a day would not be an appropriate person to receive an order for payment which would apply to a person who could work the usual number of hours a day);[11]
(h) in circumstances where Mr Lawrance was allowed to scavenge and keep the profits, the correct approach is to assess what an Applicant would have received under the appropriate industrial instrument and then subtract from that the net profit made from the exercise of the rights under the contract which could not be reflected in an award.[12]
[9] Toowoomba Regional Council v Lawrance [2014] ICQ 025, [34]-[35].
[10] Toowoomba Regional Council v Lawrance [2014] ICQ 025, [36]-[37].
[11] Toowoomba Regional Council v Lawrance [2014] ICQ 025, [40].
[12] Toowoomba Regional Council v Lawrance [2014] ICQ 025, [42].
His Honour remitted the matter to the Commission for consideration, in light of his Honour's reasons, of what payment, if any, should be ordered under s 276(5) of the Act.
The Deputy President heard the matter on 20 March 2015 and released her decision on 5 June 2015.[13] She ordered that an agreed draft order be prepared to give effect to her determination to award Mr Lawrance 40 per cent of what he might have earned under the Award had he been an employee. The TRC appealed that decision to the Industrial Court of Queensland.
[13] Lawrance v Toowoomba Regional Council [2015] QIRC 109.
Despite that appeal being made, the parties prepared orders to the effect that the TRC would pay Mr Lawrance $120,061.93 within a specified period. The Deputy President made such an order on 7 August 2015, directing that the payment be made within 14 days of the date of the Order. On 21 August 2015 she made an amended order that the payment be made within 7 days of that order. On 26 August 2015 the TRC appealed that decision to the Industrial Court of Queensland and asked that the first and further appeals be joined.
The appeals were heard on 17 November 2015. In his decision delivered on 4 April 2016, Martin J allowed the appeals.[14] It appears from his Honour's reasons for decision that Mr Lawrance accepted that the Deputy President:
(a) had not considered at least some of the areas which had been identified previously by Martin J as requiring further consideration; and
(b) had failed to give adequate reasons as to how the formula for payment of compensation had been calculated.
Martin J remitted the matter to a different member of the Commission for further consideration.
[14] Toowoomba Regional Council v Lawrance [2016] ICQ 009.
The matter was heard by the Commission as presently constituted more than three years after the first hearing. Given the number of days of hearings before the Commission and the Industrial Court of Queensland, as well as the additional time spent in preparation for each stage of the proceedings and related activities, it is likely that more money has already been expended in relation to the proceedings than is in dispute between the parties. That does not relieve the Commission of the task of doing justice according to law, but illustrates how sometimes that function is performed in circumstances where the time and resources spent in the conduct of the proceedings are not proportionate to the outcome. As the detailed reasons below demonstrate, the circumstances of this case are such that a negotiated outcome would have been preferable, and not only because of the reduction in costs to the parties.
Background to the claim
The background to this case has been traversed in the decisions of the Deputy President and President respectively. However, given the task for the Commission as presently constituted, it is necessary to provide a outline of:
(a) the history of Mr Lawrance's engagement as a contractor to successive councils
(b) the work Mr Lawrance was contracted to do;
(c) the remuneration of Mr Lawrance in relation to his work as a contractor;
(d) his other sources of income during that period;
(e) the nature, extent and implications of Mr Lawrance's disabilities; and
(f) the Councils' level of satisfaction with the work undertaken by Mr Lawrance.
The history of Mr Lawrance's engagement as a contractor to successive Councils
The present case concerns only the contract between Mr Lawrance and the TRC which operated from 15 March 2008 until 30 September 2012. However it is appropriate to note that other contracts between Mr Lawrance (alone or with others) and the Rosalie Shire Council ("RSC") or the TRC preceded the subject contract and were entered into for different periods from 1993 onwards. Information about those contracts is set out in affidavits (Exhibits 13, 16) and oral evidence.
The first written contract was foreshadowed in a letter to Mr Lawrance from the RSC dated 25 November 1993 pursuant to which he obtained formal scavenging rights to the rubbish tips at Glencoe and Meringandan.
Under a contract dated 22 November 1993, Mr Lawrance attended to:
(a) the collection and disposal of all litter and rubbish along the approach roads to the dump from the main road as well as collection and disposal of all litter in the general vicinity of the dump, on a regular basis to the Council's satisfaction; and
(b) the direction of the public to deposit rubbish in the specified areas when working at the tip.
The contract also stated that the Contractor "will have general control over the dump site in so far as the use thereof by members of the public is concerned" (Exhibit 16 DKO-2). That provision was included in subsequent contracts with Mr Lawrance.
By letter dated 21 April 1995, the RSC advised Mr Lawrance that it was cancelling their mutual contract with regard to the Meringandan Tip effective from 28 April 1995 but confirmed that he still had full rights to the Glencoe Tip under the terms of the contract dated 22 November 1993.
Under a contract with the RSC dated 21 January 1998 in relation to the Glencoe Tip, Mr Lawrance attended to the same matters as specified in the 22 November 1993 contract.
A contract with the RSC dated 25 February 1998 (with Mr Lawrance and Mr F Hibbert) in relation to the Glencoe Tip set out the obligation of Mr Lawrance (and Mr Hibbert) to attend to the same matters specified in the contracts dated 22 November 1993 and 21 January 1998. Apparently Mr Hibbert was involved for a short period and, apart from that period, Mr Lawrance discharged the duties of the contract by himself.
The RSC published a notice in relation to the Glencoe Tip notifying that towards the end of May 1998 the RSC would commence opening the facility at the following specified hours:[15]
[15] The notice stated that alternative facility was open at Meringandan between 8.30am and 4.00pm on those days.
(a) Monday, Tuesday, Wednesday 8.30am to 4.00pm
(b) Saturday Sunday 8.30am to 5.00pm
(c) Thursday, Friday Closed
The RSC stated that it had decided to set hours of operation for specified reasons including to meet its obligations and duty of care under the Environmental Protection Act 1994 (Qld) by reducing the risk of some person disposing of hazardous or prohibited material when a caretaker was not on site. The notice continued:
"Contrary to popular belief, Council do not pay the caretakers a full time wage. They have a contract with Council to salvage materials and recycle and as such have the sole rights to the material deposited on site." (Exhibit 18)
It advised that failure of a person to comply with directions of the caretaker (or an authorised officer or any displayed notice) was an offence with a maximum penalty of 40 penalty units ($3,000.00).
A Record of Conversation on 18 February 2003 (Exhibit 20) records David O'Shea[16] saying that although the hours of operation were set by the RSC, caretakers could do more work before and after hours or on days when the sites were closed. He said that on the Thursday and Friday when the Glencoe Tip was closed, Mr Lawrance and his wife Rosemary were "often there sorting out and doing pickups with companies for the recyclables and things like that."
[16] At the time of the hearing, Mr O'Shea was the TRC's Coordinator Waste Collections, Water Services Branch, Water and Waste Services. Previously he held relevant positions at the RSC.
Mrs Lawrance also had a contract with RSC for her to be Relieving Caretaker at the Glencoe Tip on days nominated by Mr Lawrance. That contract was signed by Mr and Mrs Lawrance[17] on 7 January 2002.
[17] Rosemary Lawrance is now known as Rosemary Creamer. However, at all material times she was known as Rosemary Lawrance and that name is used in the contracts relevant to these proceedings and her affidavit. Accordingly, she is referred to by that name in these reasons for decision.
Mr Lawrance and Rosemary Lawrance together entered into a contract with the RSC dated 5 March 2002 in relation to the Glencoe Tip. Under that contract, Mr and Mrs Lawrance as the Contractor agreed to:
(a) attend to the collection and disposal of all litter and rubbish along the approach roads to the dump from the main road as well as collection and disposal of all litter in the general vicinity of the dump, on a regular basis to the Council's satisfaction;
(b) attend to the direction of the public to deposit rubbish in the specified areas when working at the tip;
(c) collect payments for disposal at the facilities from non-Shire residents and the issuing of dockets for commercial and industrial waste;
(d) keep record of non-Shire residents using the facilities;
(e) keep records of quantities of recyclables and provide to Council on quarterly basis for statistical purposes;
(f) keep records of the number of vehicles entering and quantities of waste being deposited at the facilities when requested.
The Contractor was also obliged to comply with any lawful requests from time to time by Council staff in regard to dump maintenance.
The contract was expressed to be for 12 months with an option for a further 12 months. It was renewed in March 2003.
The Record of Conversation on 18 February 2003 (Exhibit 20) records Mr O'Shea saying that the RSC provided the Lawrances with some safety equipment (gloves, shirts and safety glasses) and paid an allowance towards safety boots. It also provided some onsite facilities (such as a toilet, storage container, signage and fencing). The Lawrances provided their own equipment and a vehicle (an old ute) to carry scrap from the tip to storage areas.
Mrs Lawrance suffered an injury and subsequently took no part in the day-to-day operations of the Tip. Payments to Mrs Lawrance ceased in May 2004.
Mr Lawrance subsequently ceased supplying services at the Glencoe Tip. From 3 March 2008, Mr Lawrance was caretaker at the Meringanden West Tip (and other people were caretakers of the Glencoe Tip), initially for the RSC. In March 2008, the RSC amalgamated with other regional councils to form the TRC. The TRC became the successor to the RSC and subject to the RSC's former obligations.[18] Mr Lawrance was retained to provide those services from 15 March 2008 for the TRC. According to Mr O'Shea, the terms of the RSC contract were subsumed into the TRC contract and the transition from one Council to the other was "seamless."
[18] See ss 8-10 of the Local Government Reform Implementation Regulations 2008.
The hours of operation were the same as for Glencoe Tip, but the weekdays were different:
(a) Monday, Thursday, Friday 8.30am to 4.00pm
(b) Saturday Sunday 8.30am to 5.00pm
(c) Tuesday, Wednesday Closed
In summary, between February 2004 and 30 September 2012, Mr Lawrance continued to supply tip services to the RSC and then the TRC on similar or the same terms as those set out in the 2002 contract.
Mr O'Shea gave evidence that Mr Lawrance (or a person acting on his behalf) was required to be on site during those opening hours as set by the relevant Council for five days each week for 52 weeks each year. This effectively required him (or a person acting on his behalf) to work 39.5 hours each week every week of the year.
In this respect, the TRC refers to a statement in the decision of the High Court in Neale v Atlas Products (Vic) Pty Ltd describing the situation where a contractor is free to do the work himself or employ others to carry it out. In that circumstance, the payment is not for the labour of the person to whom payments are made. Rather, it is a payment made under a contract that is payable only when the contractual provisions have been fulfilled.[19]
[19] Neale v Atlas Products (Vic) Pty Ltd (1955) 94 CLR 419, 425.
In the Record of Conversation on 18 February 2003 (Exhibit 20), Mr O'Shea stated that the caretakers would not be paid for days where they were sick. Caretakers would inform the RSC when they were absent, although there was nothing in the contract obliging them to notify the RSC. Mr O'Shea attended all of the facilities at least once a week to carry out inspections, and caretakers usually advised whether they had reason to be away for any period of time. Arrangements were usually made for other people to relieve in the absence of a caretaker and those people would be paid the daily rate.
When Mr Lawrance was sick, he would have to organise a suitable replacement and pay them the same amount that he received. According to Rosemary Lawrance, Mr Lawrance complained bitterly about how terrible that made him feel. In the end he said that it was better to work when he was sick than to go through the process of finding a replacement and paying them his wage.
The work Mr Lawrance was contracted to do
Although Mr Lawrance was engaged under each of the contracts referred to above to perform specified tasks at a Tip operated by a the RSC or TRC, the precise nature of those tasks varied depending on which contract was in effect.
The range of tasks specified under those contracts provide background to, and can be compared with, the terms of the TRC contract(s) during the subject period which provided that Mr Lawrance was to:
(a) attend to the collection and disposal of all litter and rubbish along the approach roads to the dump from the main road as well as collection and disposal of all litter in the general vicinity of the dump, on a regular basis to the Council's satisfaction;
(b) attend to the direction of the public to deposit rubbish in the specified areas when working at the tip;
(c) collect payments for disposal at the facilities from non-Shire residents and the issuing of dockets for commercial and industrial waste;
(d) keep record of non-Shire residents using the facilities;
(e) keep records of quantities of recyclables and provide to Council on quarterly basis for statistical purposes;
(f) keep records of the number of vehicles entering and quantities of waste being deposited at the facilities when requested.
He was also obliged to comply with any lawful requests from time to time by Council staff in regard to dump maintenance.
Mr Lawrance and Mr O'Shea gave oral evidence that over time the duties under the RSC contracts came to include construction of barriers for the direction of vehicles, fire control, recycling tasks, monitoring activities on site, and reporting any dumping of illegal waste.
Rosemary Lawrance gave evidence that, when Mr Lawrance worked only as the caretaker at the Glencoe Tip she would act as the relief caretaker if he could not work and had to find a replacement. She then worked for approximately six months as the caretaker of the Meringandan Tip for five days a week (other than Tuesdays and Wednesdays). After Mr O'Shea told her to work with Mr Lawrance at the Glencoe Tip, she assisted Mr Lawrance with:
(a) separating the scrap metal;
(b) documenting the qualities of the various recycled material (i.e., iron, tin, copper, glass, plastic etc) that Mr Lawrance collected and sold;
(c) completing dockets for trucks that delivered commercial and industrial waste;
(d) keeping records of the number of vehicles depositing rubbish at the tip; and
(e) keeping the Glencoe Tip as presentable as possible (Exhibit 13).
After her contract with the RSC was terminated, she continued to assist Mr Lawrance with documenting the qualities of the various recycled material that he collected and sold, and any other paperwork.
The remuneration of Mr Lawrance in relation to his work as a contractor
Whether the Council was to pay any remuneration to Mr Lawrance, or the amount of such remuneration, differed from contract to contract. Again it is instructive to trace the history of remuneration under the consecutive contracts. In summary:
(a) The contract dated 22 November 1993 stated that, in return for his services, the RSC would permit and allow Mr Lawrance to have "scavenging rights to all refuse and unwanted material deposited at the dump site by members of the public." In March 1996 the RSC issued a media release that included statements that the RSC "has a contract with the caretaker to supervise and divert the public using the tip. The caretaker is not paid but has sole rights to scavenging at the tip." People who enter the tip "must obey all directional signs and the direction of any of the authorised caretakers" (Exhibit 17);
(b) The contract dated 21 January 1998 stated that, in return for his services, the RSC would permit Mr Lawrance the same scavenging rights as under the previous contract and would also pay him a total of $20.00 per day for responsibilities associated with the contract (which included the opening and closing of the Waste Disposal site at the times on the nominated days);
(c) the contract dated 25 February 1998 contained the same scavenging rights and remuneration as in the contract dated 21 January 1998;
(d) the contract dated 5 March 2002 permitted the Contractor (i.e. Mr and Mrs Lawrance) "to all refuse and unwanted material deposited at the dump site by members of the public" and the RSC also agreed to pay:
a.each member of the contract an amount set by resolution for responsibilities associated with the contract, which include the opening and closing of the Waste Disposal site at the times on the nominated days;
b.$6.00 for each completed docket for Commercial and Industrial Waste; and
c.the retention of monies paid by non-Shire residents;
(e) On about the 7 May 2004, Mrs Lawrance's contract was terminated and payments to her by RSC ceased.
Rosemary Lawrance gave evidence that while she was working as the caretaker of the Meringandan Tip for five days each week, she was paid $25.00 per day and was given a footwear allowance of $2.00 per week, and retained the scavenging rights to anything left at that Tip (Exhibit 13).
The Record of Conversation on 18 February 2003 (Exhibit 20) records Mr O'Shea saying that the RSC made a resolution each financial year as to what fees it would pay the caretakers on a daily allowance to attend the facilities, open and close them and provide supervision. Caretakers were paid on a fortnightly basis and there were no time sheet records.
The same document also records Mr O'Shea saying that Commercial and Industrial Waste dockets were prepared when a contractor entered a waste facility. A copy of the invoice was given to each driver at the time of arrival. The RSC received a copy and forwarded the invoices to the company to be charged the commercial dumping fee. Consequently, the caretakers did not handle money. The RSC paid caretakers a commission of $6.00 on a per docket basis. That money was paid in advance to caretakers, irrespective of whether the RSC recovered money from the invoices. Caretakers were paid these sums fortnightly together with the normal fortnightly payment. The system for receiving commercial and industrial waste was terminated in December 2011 when the TRC decided to restrict the Meringandan West facility to domestic waste deposits only (Exhibit 16 paragraph 59-61).
People from outside the Shire were supposed to pay $5.00 per load when they arrived at the Tip. That money was paid directly to Mr Lawrance. The RSC did not have a record of what payments were made, and did not see that money. Nor did the RSC receive any records of payments received by the Lawrances in relation to recycling. The RSC "basically" left the Lawrances "to organise all recycling and sorting all that stuff out on their own."
There were small increases in remuneration under the TRC contract. At the time the contract was terminated Mr Lawrance was paid a base amount of $500 per fortnight.
Mr O'Shea provided the following figures from the records of the TRC of payments to Mr Lawrance for performing tip services for the following periods:
(a) 11 March 2008 to 22 June 2008 $1,860.00
(b) 6 July 2008 21 June 2009 $12,933.57
(c) 9 July 2009 to 28 June 2010 $12,312.00
(d) 4 July 2010 to 19 June 2011 $12,760.00
(e) 8 July 2011 to 21 June 2012 $12,764.00
(f) 5 July 2012 to 27 September 2012 $4,000.00
Total $56,629.57
(Exhibit 16, paragraph 42)It was submitted on behalf of Mr Lawrence that the direct remuneration he received from the TRC amounted to $58,635.57. That total was ascertained by reference to a table that Appendix 1 to the submissions made on his behalf dated 28 June 2013. A comparison between that table and the figures provided by Mr O’Shea shows some variation in items (a) $3,437.00 compared with $1,860.00; (c) $12,771.00 compared with $12,312.00, (e) $13,234.00 compared with $12,764.00, and (f) $3,500.00 compared with $4,000.00. The difference between the two totals is not large. On the basis that the TRC provided the remuneration, I will proceed on the basis that its records are more accurate.
Apparently superannuation payments were made to a complying fund at 9 per cent from 1 January 2010.
During the hearing before the Commission as presently constituted there were some references to contracts with other people and other tips during the relevant period. It is sufficient to note that the contracts with Mr Lawrance were not unique. Other contractors at other tips were paid by the TRC, though not necessarily the same amounts as Mr Lawrance (see Exhibit 16 DKO7). According to Mr O'Shea, the daily rate was the same at the four major tip sites which were open the same number of days.[20] Some people recovered recycled material for the TRC to sell to defray the costs of operating the tip. Those contracts were not in evidence. There is no way of comparing or contrasting the terms of each arrangement. It is not the task of this Commission to compare the amounts paid to Mr Lawrance with the amounts paid under arrangements with other contractors, or make findings in relation to them.
[20] Meringandan West, Glencoe, Goombungee and Yarraman.
Other sources of income
Sale of scavenged items: In addition to the remuneration received from the TRC during the relevant period, Mr Lawrance received money from the sale of items he obtained in the exercise of his scavenging rights at the Tip. He sold scrap metal, iron, copper and tin to Darling Downs Metals ("DDM"), and glass and some plastics to EJ Busby & Busby ("Busbys").
The records of monies received from those sale for the relevant years show:
| Income | FYE 2008 (part) | FYE 2009 | FYE 2010 | FYE 2011 | FYE 2012 | FYE 2013 (part) |
| DDM | 14,909.60 | 2,169.20 | 22,408.35 | 20,757.85 | 27,705.70 | 8.858.00 |
| Busbys | 1,000.00 | 1,500.00 | 1,500.00 | 1,500.00 | 800.00 | - |
| Tip Shop | 300.00 3 months | 1,300.00 | 1,300.00 | 1,300.00 | 1,300.00 | 300.00 3 months |
| Other | 16,209.60 | 4,969.20 | 25,208.35 | 23,557.85 | 29,805.70 | 9,158.00 |
(Exhibit 16 paragraph 39)
The total amount is $108,908.70. If the Tip Shop receipts of $5,800.00 are deducted, the total remaining is $103,108.70.
I gather that the Tip Shop income was set off against the cost of maintaining security dogs. That is consistent with Mr Lawrence’s evidence that he "never made enough" money from selling items at the shop at the Meringanden West Tip to declare that for income tax purposes. According to Mr Lawrance, "I was only making $50 a week if I was lucky, and I used to feed the dogs with that too." His dogs were present at the Tip and were kept for security purposes and to protect the relevant Council's property, as well as Mr Lawrance's property.
The TRC contends, by reference to Mr O’Shea’s affidavit, that the correct amount is $103,108.70.
The submissions made on behalf of Mr Lawrance assert that during the period of the TRC contract he earned a total of $96,220.20 from the exercise of his scavenging rights, selling scrap metal to DMM and glass to Busbys. Again the total amount is calculated by reference to a table that was Appendix 2 to the submissions made on behalf of Mr Lawrance dated 28 June 2013. The only difference related to the payments made by DMM in the first period ($8,024.00 compared with $14,909.60, a difference of $6,885.60).
Counsel for Mr Lawrance submitted that the larger amount relied on transaction records created by DMM in which Mr Lawrance is noted as the supplier, three of which pre-date 15 March 2008 when the TRC contract commenced. They are for $1,857.00, $3,577.60 and $1,451.00 – a total of $6,885.60. The transactions are set out in Exhibit 14 DWR4. I agree that those amounts should not be included as payments received by Mr Lawrance in the course of the TRC contract. Consequently, for present purposes, the total amount of this category of Mr Lawrance’s earnings is $96,220.20.
Counsel for the TRC also suggested that a comparison between the amounts paid by DDM in successive years indicate that the amount recorded for 2009 was a discrepancy which could be explained as an understatement of the amount received by Mr Lawrance from DDM that year. When cross-examined about those figures, Mr Lawrance said 2009 was a bad year as the prices of metal dropped to $15 per tonne and "you couldn't sell it." None of that alters the total amount assessed for present purposes.
Mr Lawrance was paid in cash by DMM and Busbys. Apparently he did not deposit the money in his credit union account (into which payments from the RSC and TRC and his Disability Support Pension were deposited). According to Mr Lawrance:
"Well, my mum used to say you put money under the bed, well, it's when you want to you got it and that's what I used to do and as mum's learnt me that way of course I couldn't do it any other way."
He found it easier to keep the money and use it to pay bills than to go into town and deposit money in an account. "I used to just hide it and when I want something I used to buy it." He said that, for example in 2008, "I did have money and I hid it for a little while and I bought a vehicle. … I needed a new vehicle so I got a ute."
Mr Lawrance could not remember telling whoever was preparing his tax returns about these amounts, although he suggested that he told one lady (apparently a friend of a friend) who said that it did not matter. He took her word for it. The parties accepted that Mr Lawrance did not declare as income the amounts he received from those sales, and he did not pay tax in relation to them. The implications of that are considered later in these reasons for decision (see [254] to [261]).
Disability Support Pension: During the period of the TRC contract, Mr Lawrance received a Disability Support Pension. The possible implications of that for any orders under s 276(5) of the Act are discussed later in these reasons for decision (see [246] to [253]).
The nature, extent and implications of Mr Lawrance's disabilities
Mr Lawrance is subject to a number of disabilities. He was assessed in 1997 as having an IQ of 67. There is no dispute that he is functionally illiterate, is unable to write other than to sign his name, has very limited facility with numbers, and has diabetes. He also has short term memory loss. The issue is what effect these disabilities had on his capacity to do his work under the TRC contract for services in 2008 to 2012.
Extent of Mr Lawrance's disabilities:An Invalid Pension Medical Impairment Assessment prepared on 5 February 1991 included in his medical history statements to the effect that Mr Lawrance is completely illiterate and can count to 20 but cannot do tables (Exhibit 24). His diabetes was also noted. At that time, Mr Lawrance was working as a cleaner at a meat works. His work capacity rating for his usual or accustomed work was 1, indicating a "substantial impact of functional impairment on work capacity resulting in an inability to work without modifications to the workplace, provision of aids and restructuring tasks." His work capacity rating for moderate/less skilled work was 4 (minimal or intermittent impact of functional impairment on capacity to work) and was annotated "Day shift only." It is apparent that the reason for the work capacity rating was that Mr Lawrance could not cope with bright lights duties because of his diabetes. It was also noted that he could do light labouring work by day only.
Another impairment assessment dated 18 February 1991 (Exhibit 24) recorded impairment due to diabetes mellitus (20%) and intellectual impairment/illiteracy/innumeracy (15%). The overall level of impairment was recorded as 30%. Counsel for Mr Lawrance noted that there is no suggestion that the diabetes caused Mr Lawrance any difficulties in performing as required by his contracts with the RSC and TRC. Accordingly, the part of the assessment of his incapacity that relates to diabetes can be disregarded for the purpose of these proceedings.
An Invalid Pension Medical Assessment Sheet dated 14 March 1991 (Exhibit 14 DWR-6) recorded Mr Lawrance's disabilities as diabetes/insulin-dependent, and the degree of his impairment as 30 per cent. The Recommendation part of that sheet stated that Mr Lawrance satisfied s 27(a) of the Social Security Act 1991 (Cth) because he was "85% incapacitated" and recommended that an invalid pension be granted. In addition to the medical condition causing his problem, other considerations were age and illiteracy. Counsel for Mr Lawrance suggested that the apparent discrepancy between the 30 per cent impairment and 85 per cent incapacity might have arisen if the 30 per cent figure had been copied from the document of 18 February 1991.
A psychology report based on an assessment by a Centrelink psychologist on 16 September 1997 (Exhibit 24) noted that Mr Lawrance recounted childhood literacy difficulties. He was observed during the assessment to rely heavily on the use of his fingers for counting, even for single figure addition and subtraction tasks. His written skills were described as "rudimentary." He continued to be unable to read or write, despite attempting literacy classes. His intellectual disability was found to be "of a level sufficient to preclude him from mainstream labour market involvement."
I note that those assessments were made on various dates some 10 to 17 years before the TRC contract commenced.
On 25 March 2013, six months after the TRC contract ended, Dr Benjamin Duke, a consulting psychiatrist prepared an independent medico legal report in which he referred to Mr Lawrance's long-standing history of difficulties with illiteracy (Exhibit 6). On testing that day, Mr Lawrance appeared to be able to recognise a majority of letters in words, but was unable to form these into words and reported being unable to write anything other than his signature (a skill his mother trained him in). He appeared able to recognise numbers, but was not able to perform simple calculations. Attempts to perform calculations involved the use of his fingers, and even then there were inaccuracies in his responses. Mr Lawrance reported only sometimes requesting and receiving assistance with tasks involving reading, writing and numeracy. Dr Duke stated that Mr Lawrance "presents with what appears to be marked impairment of cognitive functioning, and appears to have no ability to read or write. In addition he has limited numeracy skills." In his oral evidence, Dr Duke said that he found Mr Lawrance had difficulties with short term and long term memory. In his opinion, Mr Lawrance was suffering from mental retardation which was likely to be a congenital disorder. As a consequence of his impaired intellectual functioning, Mr Lawrance would "struggle to be able to read or understand any form of written document. His ability to understand complex concepts appears to be limited." (See Exhibit 6)
Mr Lawrance gave affidavit and oral evidence that is consistent with the medical evidence just summarised. He said that he knew individual numbers but could not add them together or multiply numbers. He also agreed that he had short term memory loss, and suffered from diabetes myelitis.
Effect on Mr Lawrance's capacity to work: The issue is what effect these disabilities had on Mr Lawrance's capacity to do the work he was contracted to perform, or the work that an employee in a comparable role would be expected to do.
Mr Lawrance and Mrs Lawrance gave evidence about the implications of his disabilities for his performance of some of his duties under the contract.
Mr Lawrance explained in his affidavit how he performed the clerical aspects of his work.
(a) When Mr and Mrs Lawrance were working together at Glencoe Tip "Rosemary did those parts of the job which required reading and writing and I performed the other jobs, including the scavenging work."
(b) After Mrs Lawrance ceased working at the Glencoe Tip, "I continued to do the work … on my own. Rosemary assisted me with the jobs that required reading and writing, even though she was not working at the tip." (Exhibit 4 paragraphs 29, 32)
Mr Lawrance explained that, during the latter period:
"33. As to keeping count of the vehicles, I would make a mark on a piece of paper for every vehicle that came to the tip and Rosemary would tally those marks up at the end of the day. As to the records of recyclables, Rosemary continue to collect those figures from Darling Downs Metals and Busbys and provide them to RSC.
34. As to records of non-shire residents, there really were not any that used the Glencoe Tip.
35. After a while, Rosemary went away for a long time. After she left, I could not do some of the jobs that required reading and writing. I was able to provide dockets for commercial and industrial waste. I gave those to the drivers who would fill out the dockets and return them to me. I would then give a bundle of collected dockets to David O'Shea when he came to the tip, which he did every 1 or 2 weeks." (Exhibit 4)
In his oral evidence, Mr Lawrance agreed that he would get commercial operators to fill out the dockets, and he relied on their honesty (although he would fill out the amount of cubic metres of waste). He would sign the dockets. So far as he was aware, the TRC was happy to have the dockets completed in that way. By his account, "I never failed on my job doing the job. I used to always do the right thing."
With respect to his business activities in relation to the salvage and sale of glass, plastics, metals and other scrap material, Mr Lawrance stated in his affidavit:
"61. The main source of income from scrap was from Darling Downs Metals. I do not know how much I received from that company. I am advised [by] my solicitors that they have obtained invoices from Darling Downs Metals relating to the sale of scrap metal to the company by me. I would have to accept the amounts set out in those documents. All payments were received in cash.
62. As to the sale of glass and plastics to Busbys, I do not believe that I received much money from those sales.
63. I also operated a Tip Shop at the Meringandan Tip where I sold some salvaged items to members of the public, such as bikes and old chairs. …. On some days I would earn $5 from that activity and on other days maybe $20. I estimate that I received no more than $50 a week from these sales. All payments were in cash." (Exhibit 4)
Rosemary Lawrance gave evidence about the nature and implications of Mr Lawrance's disabilities. In her affidavit (Exhibit 13) she stated that she became aware at a very early stage in her relationship with Mr Lawrance that he could not read or write.
When Mrs Lawrance was assisting Mr Lawrance at the Glencoe Tip, her duties included:
(a) documenting the qualities of the various recycled material (i.e., iron, tin, copper, glass, plastic etc) that Mr Lawrance collected and sold;
(b) completing dockets for trucks that delivered commercial and industrial waste;
(c) keeping records of the number of vehicles depositing rubbish at the Tip.
She also gave evidence that Mr Lawrance had, where possible, relied on her to read his mail and take care of his finances. She recalled occasions when Council staff brought various letters or contracts for Mr Lawrance to sign. To the best of her recollection, he was not given the opportunity to have them read to him or obtain advice (Exhibit 13).
Mr O'Shea provided affidavit evidence to the effect that he understood that Mr Lawrance has no formal qualifications, that he had not attained any tickets to operate any form of machinery used at the TRC's waste service facilities and had never operated any such machinery (although that was not a requirement of his 2002 contract). Mr O'Shea was also aware of Mr Lawrance's limited ability to read and write, and he instructed employees of the RSC to adopt specified methods when communicating with Mr Lawrance to ensure that (because of his limited literacy and numeracy skills) he knew of the various matters and expectations associated with the performance of his services. (Exhibit 16 paragraphs 26, 27, 64-68)
The Councils' level of satisfaction with the work undertaken by Mr Lawrance
The evidence supports a finding that (other than when he was unwell) Mr Lawrance worked on the nominated five days each week for 52 weeks each year during the terms of his successive contracts.
He took little time off work, in part perhaps because if he did so he had to find a replacement and was not paid for those days.
Mr O'Shea gave written and oral evidence about the Council's level of satisfaction with Mr Lawrance's work. He stated that he had observed Mr Lawrance on "many occasions … acting in a manner that demonstrated that he knew what he was required to do and also that he knew the business he was operating in" (Exhibit 16, paragraph 69).
He also observed that Mr Lawrance rarely took time off work, and agreed that Mr Lawrance was a pretty good worker. Mr O'Shea's visits to the sites were infrequent and became less frequent by 2008.
Mr Lawrance's attitude to work was expressed in the following passage from his oral evidence:
"I used to love working. … I used to just like work. I used to get out of bed - and I do like to get out of bed in the morning to go to work, but they reckon I can't work because I've got arthritis and everything. … I used to like working and that's all that was the main thing. … I wasn't working for money. I was working for love and didn't mind going to work every morning to work. I miss the people. I miss the people used to come in the dumps."
He also asserted, "Well, 26 years I didn't make any mistakes. I worked good and hard, and by - if they tell me the rules and the things like that, I used to always obey by them. I never - not."
In a letter to Mr Lawrance dated 16 March 2000, expressing concerns about Mr Lawrance's injury and his fitness to continue working at the Glencoe Tip, Mr O'Shea stated that "this Department wouldn't get the credit for the way it operates the tips if it wasn't for your dedication." He continued that he and another named person "appreciate the work that you do" and "look forward to many more years of association with you" (Exhibit 21).
Mr O'Shea gave evidence that the RSC and TRC exercised very little control over the activities undertaken by Mr Lawrance on a daily basis. For example, he was unable to state what hours Mr Lawrance worked in performing his Tip services or what duties he undertook on a day-to-day basis. Nor was Mr O'Shea able to comment on the hours that Mr Lawrance spent in activities aimed at generating income for himself (Exhibit 16 paragraphs 28-29).
Although Mr O'Shea gave evidence about Mr Lawrance's limited numeracy and literacy skills, he:
(a) recalled that when he purchased items from Mr Lawrance at his Tip Shop, Mr Lawrance was able to place a value on each item and to calculate the amount of money Mr O'Shea paid him in cash for that item;
(b) believed that Mr Lawrance knew the business of running a Tip Shop, and appeared to know which items would be of value because of the types of metals contained in them;
(c) considered Mr Lawrance savvy enough to sell items to his particular market, varying the price for children or adults.[21] (Exhibit 16 paragraph 69)
[21] In an affidavit, Mr Lawrance stated: "I never liked to give things away except to children, because I do like children." (Exhibit 5, paragraph 17).
It seems reasonable to conclude from the evidence overall that Mr Lawrance did what the Councils required to the satisfaction of each Council.
However, for reasons set out later, the TRC submits that the key issue in this case is not whether Mr Lawrance satisfactorily performed his duties as a contractor but whether he had the capacity to perform the duties of an employee in a comparable position.
Why his contract was unfair
The relevant subsections of s 276 of the Act for present purposes are set out at [7].
The significant outcome of previous hearings before a differently constituted Commission and the Industrial Court of Queensland is that the contract between Mr Lawrance and the TRC for the period between March 2008 and September 2012 has been held to be unfair.
In the reasons for her first decision,[22] the Deputy President referred to decisions in some other cases and wrote in relation to the TRC contract:
[22] Lawrance v Toowoomba Regional Council (B/2012/51) [18 November 2013] - decision regard to those decisions, and when one takes into account the Applicant's illiteracy, his disadvantage in the labour market, his limited numeracy and cognitive limitations and his significantly diminished bargaining power with TRC (and previously with RSC) it is clear that the contract between the parties was unfair when one considers the relative bargaining position of the parties to the contract [S276.2(a)].
[92]It was unfair to the extent that TRC required the Applicant to perform a wide range of duties, be in attendance at the tip 52 weeks of the year, and open and shut the tip without any consideration given to the Applicant's inability to understand the monetary value of the work being required of him by TRC. TRC held this information to itself and arbitrarily determined an amount that it would pay to the Applicant without any recognition of the Applicant's inability to negotiate fair terms with them.
…
[96]Further, the money received from TRC was completely inadequate for the work which was being performed by the Applicant on its behalf."
Later in the decision she wrote:
"[115]After considering all these factors and that section 276 of the Act defines an unfair contract to include a contract that has included a total remuneration less than that which a person performing the work as an employee would receive under an industrial instrument or the Act, it is clear that the contract under which the Applicant was engaged was unfair. I have found that the Applicant was being paid less than that which a person performing the work as an employee would receive under the relevant industrial instrument."
In his reasons for decision on the appeal from that decision,[23] Martin J set out paragraph [92] of the Deputy President's decision and wrote:
"[17]… it can reasonably be inferred that another basis of the finding of unfairness is that [Mr Lawrance] was not properly compensated for the work performed. In other words, it is not the nature of the work which led to a finding of unfairness but the remuneration received for it. Not being appropriately remunerated, in circumstances where the worker may be unable to understand that he is not being paid a reasonable amount, can support a finding of unfairness."
[23] Toowoomba Regional Council v Lawrance [2014] ICQ 025.
Although many things are in issue between the parties, the agreed starting point in the present proceedings is that the TRC contract has been held to be unfair. As will become apparent, there was some disagreement between the parties as to the reason (or reasons) why the TRC contract was found to be an unfair contract. Having reviewed the evidence and the decisions of both the Deputy President and Martin J, I have concluded that the unfair contract was a product of the relative bargaining positions of the parties. But the contract was unfair because of what it contained, not simply because the parties were in unequal positions when they entered into it. The nature and duration of the work undertaken in accordance with the contract was not inherently unfair, but Mr Lawrance was inadequately remunerated for that work. In other words, he was not properly compensated for the work he performed. That conclusion provides the basis on which the Commission as presently constituted must proceed.
The role of the Commission to remedy the unfairness
Al s 276(1) of the Act empowers the Commission to amend or declare void (wholly or partly) a contract for services that the Commission considers is an unfair contract.
Subsection 276(5) of the Act provides:
"(5) The commission may make an order it considers appropriate about payment of an amount for a contract amended or declared void."
Although the Deputy President's declaration that the TRC contract was unfair was allowed to stand by the Industrial Court, the other declaration and order pursuant to s 276(1) were overturned.
[100]Submission for Mr Lawrance: Mr Lawrance's representative noted that:
(a) in neither of its decisions did the Industrial Court of Queensland pay any particular attention to whether the TRC contract should be amended or declared void;
(b) the Court remitted to the Commission the issue of any order for payment under s 276(5) of the Act;
(c) the power to award compensation under s 276(5) is a very wide power;
(d) it appears that an order under s 276(5) of the Act is conditioned on the unfair contract being amended or declared void pursuant to s 276(1).
[101]In light of s 276(1) and given the nature of the unfairness found by the Deputy President in this case, it was submitted on behalf of Mr Lawrance that an order declaring the remuneration provisions of the TRC contract void would be appropriate. Although no precise formulation was advanced, that submission should not be understood as seeking to declare void his entitlement to remuneration. Rather, it was submitted that the Commission should, in all the circumstances, make an order for payment by the TRC to Mr Lawrance to compensate him for the unfairness of the TRC contract. Counsel for Mr Lawrance stated that he would have no difficulty with the Commission substituting the remuneration provisions of the TRC contract with some other formula reflecting his submissions.
[102]In relation to s 276(5) of the Act, counsel for Mr Lawrance referred to the decision of the New South Wales Court of Appeal in Walker v Industrial Court of New South Wales[24] in which Kirby P described s 88F of the Industrial Arbitration Act 1940 (NSW), a provision in similar terms to s 276 of the Act, as conferring a "very wide discretion" and the remedies at the disposal of the Commission and then the Court as "also extremely wide." His Honour stated that there was "no warrant for confining this very large power, or for narrowing the circumstances of its exercise, except as the statute provides."[25] He continued:
(b) January to June 2013: 7% x 0.5 = $2,275.00
(c) July to December 2013: 6.75% x 0.5 = $2,193.75
(d) January 2014 to June 2015: 6.5% x 1.5 = $6,337.50
(e) July 2015 to June 2016: 6% x 1.0 = $4,225.00
(f) July to December 2016: 5.75% x 0.5 = $1,868.75
Total $18,118.75
[305]Accordingly, the amount payable by the TRC to Mr Lawrance is $64,860.98 plus interest of $18,118.75, rounded to a total of $83,000.00.
Orders
[306]For the reasons outlined above, pursuant to s 276 of the Industrial Relations Act 1999:
1. The contract between the Toowoomba Regional Council ("TRC") and Clynton Lawrence for the period between 15 March 2008 and 30 September 2012 is amended by adding a clause to the effect that, in addition to any remuneration paid by the TRC to Mr Lawrence under the contract, the TRC is to pay Mr Lawrance the sum of $83,000.00.
2. The TRC is to pay Mr Lawrance the sum of $83,000.00.
3. Payment is to be made within 28 days of the release of this decision.
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