Lawrance v Toowoomba Regional Council
[2015] QIRC 109
•5 June 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Lawrance v Toowoomba Regional Council [2015] QIRC 109 |
PARTIES: | Clynton Lawrance v Toowoomba Regional Council |
CASE NO: | B/2012/51 |
PROCEEDING: | Application to amend or declare void a contract |
DELIVERED ON: | 5 June 2015 |
HEARING DATE: | 20 March 2015 |
MEMBER: | Deputy President Swan |
ORDERS : | 1. Toowoomba Regional Council to forward a draft Order as to quantum to Counsel for Mr Lawrance within 14 days. 2. The agreed draft Order to be forwarded to the Commission within 7 days. |
| CATCHWORDS: | INDUSTRIAL LAW - APPLICATION TO AMEND OR DECLARE VOID A CONTRACT - unconscionable contract - compensation awarded-adjustment to quantum because of intellectual impairment. |
| CASES: | Industrial Relations Act 1999 (Qld) |
| APPEARANCES: | Mr R. Reed of Counsel instructed by Aden Lawyers for the Applicant. |
Decision
This Application deals with matters arising from the decision of the Industrial Court of Queensland on 5 August 2014 whereby the Appeal by Toowoomba Regional Council (the Council) against the Commission's decision of 18 November 2013 was allowed in part and the matter was remitted to the Commission for consideration, in light of the Industrial Court's reasons, of what payment, if any, should be ordered under s 276(5) of the Industrial Relations Act 1999 (Qld) (the Act). The substantive Application related to Mr Clynton Lawrance and various contracts he held with the Council.
In its decision, the Industrial Court upheld the Commission's substantive finding that the contract (the TRC contract) between the Council and Mr Lawrance was unconscionable because of the circumstances of relative advantage and disadvantage and thereby was unfair within the meaning of s 276 of the Act. The Industrial Court, however, remitted to the Commission for reconsideration the calculation of any consequential payment of compensation.
The Council submitted that the focus of its claim centred upon Mr Lawrance's intellectual restrictions and how that may affect any payment which might be made to him as a consequence of finding his contract/s were unconscionable and, within this context, referred to Brown v Rezitis.[1]
"In my opinion the power to make an order for the payment of money is at best no more than a power to make such an order as can reasonably be thought to have a real connection with the making, variation or avoidance of the contract or arrangement which has been varied or avoided."
[1] Brown v Rezitis (1970) 127 CLR 1t 165
The issues to be addressed by the Commission are:
(a) The Supported Wage Awards;
(b) The effect of the Disability Support Pension;
(c) The effect of the Social Security Act 1991 (Cth);
(d) The effect of cause 6.1.2(d) of the Local Government Employees (Excluding Brisbane City Council) Award - State 2003 (the Award);
(e) Mr Lawrance's particular circumstances.
The Supported Wage Award - State 2002 and 2012
The Supported Wage Award - State 2002 and 2012 states, inter alia that:
"1.3.1 Objective
"The objective of this Award is to promote job opportunities in the open labour market for people with a disability by providing a legal basis for the payment of a pro rata wage, based on a nationally consistent assessment of the person's skills and productive capacities, matched to the requirements of the particular position covered by an 'Industrial Instrument'."
"1.4 Award coverage
1.4.1This Award applies to employees who:
(a)are unable to perform the range of duties to the level of competence required within the class of work for which the employee is engaged under this Award because of the effects of a disability on their productive capacity; and
(b)who meet the impairment criteria for receipt of a Disability Support Pension (as defined)."
"5.1 Assessment of capacity
For the purpose of establishing the percentage of the wage rate (as set out in the relevant Industrial Instrument) to be paid to an employee, the productive capacity of the employee will be assessed in accordance with the Supported Wage System and documented in an Assessment Instrument, by either:
(a)the employer and the Relevant Union in consultation with the employee; or
(b)if desired by any of these, the employer and an Accredited Assessor from a list agreed by the parties to the Award and the employee."
"5.2 Supported wage rates
Employees to whom this Award applies shall be paid the applicable percentage of the appropriate rate of pay prescribed by the relevant Industrial Instrument for the class of work which the person is performing according to the following schedule:
| Employee's Assessed Capacity | % of prescribed appropriate rate |
| 10% | 10% |
| 20% | 20% |
| 30% | 30% |
| 40% | 40% |
| 50% | 50% |
| 60% | 60% |
| 70% | 70% |
| 80% | 80% |
| 90% | 90% |
[Provided that the minimum amount payable shall not be less than $56 per week]."
"1.6 Definitions
1.6.2"Assessment Instrument" means the form provided for under the Supported Wage System that records the assessment of the productive capacity of the person to be employed under the Supported Wage System."
The Court's decision referred the Commission to the Supported Wage Award (Qld) for consideration.
Counsel for Mr Lawrance believed that the Supported Wage Awards had no application in the exercise of the Commission's discretion under s 176(5) of the Act. This was because Mr Lawrance could perform the full range of duties assigned to him and "the admitted intellectual disability from which the applicant suffered had no relevant effect on the applicant's productive capacity" [Mr Lawrence's submissions - point 10].
Counsel for Mr Lawrence also said that the Council had attempted to align Mr Lawrance's productive capacity with assessments made of his intellectual capacity for the purpose of obtaining a social security pension.
The Council had not produced any evidence at the hearing as to what an assessment of Mr Lawrance in relation to the Supported Wage Awards might have produced.
The Council submitted that the purpose for assessing Mr Lawrance's degree of impairment related to his obtaining a Commonwealth benefit and that in March 1991, Mr Lawrance was said to be permanently incapacitated for work [DWR - 6 Exhibit 14]. The Council adds that the assessment was of limited assistance when it came to assessing the ability of Mr Lawrance to perform the required duties prescribed in the Supported Wage Awards.
The Supported Wage Awards apply to persons who meet the impairment criteria for receipt of a Disability Support Pension. Mr Lawrance had met those requirements.
Primarily the question posed by the Council is "was the Applicant an employee who was unable to perform the range of duties to the level of competence required within the class of work for which the employee is engaged under this award because of the effects of a disability on their productive capacity?"
The Council says this question raises the following issues:
a) What is the class of work for which the employee is engaged under this award?
The class of work in which the employee is engaged under the Supported Wage Awards is referenced in clause 5.2 of the Award. The appropriate Industrial Instrument is the Award.
b) What are the range of duties?
The Council submits that "the range of duties is not answered by a reference to the various activities performed by Mr Lawrance on a day-to-day basis." What is required is a consideration of the duties of Mr Lawrance as an employee coupled with the contractual and statutory duties imposed upon him in this role.
The Council referred to some activities undertaken by Mr Lawrance at the site which would not be found in the Award.
While the Council accepts that there were certain duties performed by Mr Lawrance under the contract/s, these duties were "more likely to have been done" by Mr Lawrance's wife. This would relate to duties which required literacy skills which Mr Lawrance did not possess.
The type of duties referenced were:
a) issuing dockets to customers depositing commercial and industrial waste;
b) keeping records of non-shire residents and collecting payment from them for the disposal of rubbish;
c) keeping records of amounts of goods recycled; and
d) keeping records of the number of vehicles to the tip site.
While Mrs Lawrance contributed towards the performance of these duties at a certain time, beyond 2003 Mr Lawrance worked on his own, with adjustments made by the Council, with the same contract in place and the new contract of 2008 incorporated the same terms. However, it is clear that Mr Lawrance was unable to complete all of these duties on his own.
The above list of duties concentrated upon Mr Lawrance's inadequacies with numeracy and literacy, however he did perform a range of other duties which the Council in the substantive hearing found to be adequate regardless of his illiteracy. I have accepted that the Council says that the adequacy of Mr Lawrance's performance under the various contracts is not the issue for consideration.
However, because there had been no formal assessment of Mr Lawrance's work capacity within the context of his intellectual disabilities (as would have occurred under the Supported Wage Awards), the only helpful indicator of his work capacity/productivity generally is to be found in considering the type of duties he performed satisfactorily under the contract/s. This level of capacity is not be what would have been required of him under the Award, but it is the only indicator of what he, at the very least, was capable of in terms of productive capacity. In my view, to rely solely upon his intellectual assessments as being the only source as to his capacity/productivity at work, without considering the evidence which had been unchallenged in the substantial hearing of his productive work ability, has the potential to unfairly disadvantage Mr Lawrance in this matter.
In considering the Supported Wage Awards, an assessment is made of the employee's productive capacity by either the employer and the relevant Union or by an Accredited Assessor from a list of persons agreed to by the parties to the Award and the employee. Because that process is unable to be conducted, it is not unreasonable to consider the Council's view as to the productive capacity of Mr Lawrance (albeit in his capacity as a contractor with specific and modified duties) together with Mr Lawrence's own evidence. These duties undertaken by Mr Lawrence (as a contractor) were as follows:
· Attendance at the site for 52 weeks of the year from Monday to Friday;
· In 2008, Mr Lawrance was required to work on Monday, Thursday and Friday from 8.30am - 4.00 pm and Saturday and Sunday from 8.00am to 5.00pm;
· Opening and closing the site;
· The construction of barriers for the direction of vehicles;
· Fire control;
· Recycling tasks (the ones conceded by Mr O'Shea to be of benefit to the Council);
· Monitoring the activities on site;
· Directing the public to the various waste disposal areas;
· Performing the duties of reporting hazardous waste and recycling duties;
· Attending 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;
· The requirement to notify the Council of any potentially dangerous circumstances at the site;
· Acknowledged as well was that Mr Lawrance brought his dogs to the site (without recompense from the Council) and they were used to protect both the property of the Council and that of Mr Lawrance; and that Mr Lawrance was required, under the contract/s, to comply with all lawful requests from time to time by the Council with regard to dump maintenance.
It is not the case that Mr Lawrance's only work as a contractor involved opening and closing the dump. There was no evidence limiting his ability to those simple duties only as has been suggested by the Council in the substantive hearing.
The Council's view was that it not just the express duties of an employee under the Award to be considered, but also the implied duties (whether the implication came from the common law or statute).
Under the relevant provision of the Award, a Tip Master is defined as "an employee who, in addition to the duties of a tip attendant is responsible for the day to day operation of a refuse tip. The duties of this position will include responsibility for opening and closing of gates, weighing of commercial loads, collection and remittance of fees and direction of other employees and members of the public in relation to the position and management of the tip base and surrounds."
The Council submits that many of the duties, which would have been required of Mr Lawrance as an employee, would have been unable to have been successfully undertaken by him.
These issues have been previously cited in paragraph 17.
Because of Mr Lawrance's numeracy and literacy problems and his intellectual impairment, it is clear that there would be a number of duties he could not perform at the required level of an employee under the Award. Certainly he could not read any of the Workplace Health and Safety Policies and the Code of Conduct. But it does not necessarily follow that he had no capacity to understand anything with regard to those matters as has been put to the Commission. That suggestion would be contrary to the evidence given by the Council at the substantive hearing. The evidence more than suggests that the Council knew its property was well looked after by Mr Lawrance in all respects as it left him mostly unsupervised and in control of the property year after year. It is accepted, however, that he could not meet those requirements of an employee under the Award.
As a consequence of Mr Lawrance's intellectual limitations in relation to what might be required of him as an employee under the Award, those factors will be duly considered in the determination of the Commission as to any amount of compensation which might be awarded to Mr Lawrance.
What are the effects of the disability on their productive capacity?
The Council believed that because Mr Lawrence received a Disability Support Pension and he received wages for working more than 15 hours per week, then he was in breach of that Legislation. In his decision, His Honour disagreed with that submission and said that the Social Security Act "does not purport to restrict the recipient of such a pension to working for less than 15 hours a week." Thus, this Act does not determine that a recipient of the pension should be restricted in terms of the hours worked because the eligible person's incapacity is the restriction itself.
An assessment undertaken at that time, showed that Mr Lawrance received a capacity rating of one by the examining medical officer. A rating one is said to have a:
"Substantial impact on functional impairment of work capacity resulting in an inability to work without modifications to the workplace, provision of aids and restructuring tasks" [Exhibit 14 DWR-6].
The Council accepts that the assessment was for the purpose of informing the relevant Commonwealth authority about the eligibility of Mr Lawrance to receive a benefit. It also stated, "It is of limited assistance when it comes to assessing the ability of the Applicant to perform the required duties prescribed in the Supported Wage Awards" (Council submissions - point 7].
Dr Duke (Psychiatrist) gave evidence that Mr Lawrance suffered "likely mild" mental retardation [Annexure BD to Exhibit 6]. Dr Duke also stated that there was limited capacity for psychiatrists to comment upon the effects of intellectual impairment.
The Combined Impairment Assessment (considering Mr Lawrance's diabetes and intellectual impairment) was 30%. Mr Lawrance's disabilities were assessed as having minimal or intermittent impact of functional impairment on his capacity to work in jobs of moderate intensity requiring less skills, such as a plant operator, cleaner, store person or factory hand. The assessment also stated that Mr Lawrence could do light labouring work by day only.
The Industrial Court stated that the effect of Clause 6.1.2(d) of the Award should be considered as to whether Mr Lawrence entered into an agreement where work performed by him on a Saturday or Sunday would not be subject to the additional penalty payments prescribed in clause 6.1.2(a) of the Award.
While there was no evidence in the substantive hearing on this point, the Industrial Court stated that there might have been a chance of this occurring.
Malec v JC Hutton Pty Ltd states that "if the law is to take account of future hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring."
Because the days worked by Mr Lawrance were determined by the Council, I accept that Mr Lawrance had no capacity to work any of the cycles referred to in the Award. It seems clear that Clause 6.1.2(a) provided the only option available to Mr Lawrance.
"6.1.2 Arrangement of hours
(a)Subject to clause 6.1.3 the ordinary hours of work may be worked on any 5 consecutive days in the week, Monday to Sunday inclusive, subject to the following:
(i)Ordinary hours worked on a Saturday shall be paid for at the rate of time and a-half for the first 3 hours and double time thereafter;
(ii)Ordinary hours worked on a Sunday shall be paid for at the rate of double time."
In making a determination as to the degree Mr Lawrance's intellectual limitations would impact upon his productive capacity if he worked as an employee, the various assessments will be taken into consideration by the Commission.
Discounts to be applied in the assessment of any figure
The Council referred to a range of discounts, which should be considered by the Commission in its determination of any compensation, which may be paid to Mr Lawrance as a consequence of the unconscionable contract.
The discounts cover a range of matters which include the Disability Support Pension,
taxation arrangements and whether the Council would have rearranged the management of the dump if in fact the person who was in control of the dump was an employee rather than a contractor and Mr Lawrance's ability to be engaged as an employee rather than a contractor of the Council taking into account this level of intellectual impairment.
The Council submitted that taking into account all of the factors raised for consideration in this matter, Mr Lawrance should be paid "less than 50% of the rate payable under the Award" [T-1-42]. Council for Mr Lawrance said that the discount to be considered by the Commission should be between 10 - 20% of the rate awarded to Mr Lawrence.
Having accepted the Council's submissions with regard to the issues to be considered in this matter, I have given consideration to its assessment of what might be paid to Mr Lawrence. This generalisation by the Council is not overly helpful.
Notwithstanding that, I have determined to award to Mr Lawrence 40% of what he might have earned under the Award had he been an employee. In doing so, I have considered all of the factors which required consideration pursuant to the Industrial Court's suggestions.
I have not attributed an actual monetary amount and will leave that to the Council to determine what the actual amount of money is vis a vis the various Award rates of pay for a Tip Master over the relevant years in question.
The Council is requested to forward a draft Order to Counsel for Mr Lawrance within 14 days of the release of this decision and subject to there being no disagreement between the parties as to quantum, the draft Order should be forwarded to the Commission within 7 days. Upon receipt of the draft Order, the formal Order will be issued by the Commission.
I order accordingly.
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