Toowoomba Regional Council v Lawrance

[2016] ICQ 9

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Toowoomba Regional Council v Lawrance [2016] ICQ 009

PARTIES:

TOOWOOMBA REGIONAL COUNCIL

(appellant)

v
CLYNTON LAWRANCE

(respondent)

FILE NO/S:

C/2015/28 and C/2015/40

PROCEEDING:

Appeal

DELIVERED ON:

4 April 2016

HEARING DATE:

17 November 2015

MEMBER:

Martin J, President

ORDER/S:

1.   The appeals are allowed.

2.   The matter is remitted to a different member of the Commission for further consideration.

3.   I will hear the parties on any further orders that they may wish to have made in order that the conclusion of this matter may be reached as soon as possible.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where Commission declared that a contract between the appellant and respondent was unfair for the purposes of s 276 of the Industrial Relations Act 1999 and ordered, among other things, that the appellant pay the respondent the sum of $215,000 in remuneration – where the appellant’s appeal of that decision to this court was partly successful and the matter was remitted to the Commission to determine what payment, if any, should be ordered under s 276(5) of the Industrial Relations Act 1999 – where the Commission on remitter made findings on a number of matters concerning the assessment of the amount to be paid to the respondent and required the appellant to determine the actual amount of money to be paid by referring to the reasons of the Commission – where the appellant appeals that decision on the grounds that the Commission did not consider some of the areas identified by this court in the earlier appeal as requiring further consideration and did not provide adequate reasons as to how the formula for payment of compensation had been calculated – where the respondent effectively concedes the appeal on those grounds – whether the court should finally determine the matter – whether the court should remit the matter to be heard by a different member of the Commission

Industrial Relations Act 1999, s 276

CASES:

Toowoomba Regional Council v Lawrance [2014] ICQ 25
Toowoomba Regional Council v Lawrance [2015] QIRC 109

APPEARANCES:

K Watson instructed by Clifford Gouldson Lawyers for the appellant in both appeals

R Reed instructed by Aden Lawyers for the respondent in both appeals

1. In November 2013, a Deputy President of the Commission made the following orders:

   (a)that the contract of services between the Toowoomba Regional Council and Mr Lawrance was an unfair contract for the purposes of s 276 of the Industrial Relations Act 1999 (“the Act”),

   (b)that the contract was void ab initio,

   (c)that the contract be amended to provide for payment of remuneration, and

   (d)that the Council pay Mr Lawrance the sum of $215,000.

2. In August 2014, an appeal against those orders was successful in part and orders (b), (c) and (d) were set aside with the matter being remitted to the Commission for consideration of what payment, if any, should be ordered under s 276(5) of the Act.[1]

   [1]     Toowoomba Regional Council v Lawrance [2014] ICQ 25.

3. After considering further submissions in the remitted matter, the Deputy President made findings with respect to a number of matters concerning the assessment of the amount to be paid to Mr Lawrance and required the Council to determine the actual amount of money to be paid by referring to the Deputy President’s reasons.[2]

   [2]     Lawrance v Toowoomba Regional Council [2015] QIRC 109.

4. The Toowoomba Regional Council has appealed that decision and Mr Lawrance has, effectively, conceded the appeal. It is unnecessary to go into the details of that concession other than to say that the respondent accepted that the Deputy President had not considered at least some of the areas which had been identified by the decision of this court as requiring further consideration and the Deputy President had failed to give adequate reasons as to how the formula for payment of compensation had been calculated.

5. The issue before me is whether the matter should be finally determined in this court or remitted to the Commission for further hearing.

6. Mr Watson, who appeared for the appellant, pressed for the matter to be concluded in this court on the basis that all the evidence that was needed to be considered was already available.

7. Mr Reed, who appeared for the respondent, submitted that the matter should be remitted to a different member of the Commission for further consideration. He contended that there might be a need for both further evidence and further submissions with respect to, among other things, the possibility of an estoppel argument being raised, the provisions relating to penalty rates and the Supported Wage Award.

8. While I accept that further submissions will be necessary, it is not immediately obvious to me that further evidence will be required to be called. One of the matters which will require consideration is the extent of Mr Lawrance’s capacity and the effect that has on the application of the Supported Wage Award. That award presupposes an assessment of capacity, but that assessment was not performed in this case. Thus, it will fall to the decision maker to make some form of “assessment” on the basis of the evidence.

9. One of the matters which concerned me during argument was the possibility that the case might need to be rerun in large part so that a member of the Commission could fully understand the extent of the incapacity which would be relevant to any further assessment. Upon rereading the decisions in this case, I do not think that that is so. The findings made by the Deputy President are sufficient, when taken together with the other evidence which has already been called, to provide a sufficient background for an assessment.

10. A matter which has weighed in the balance is that members of the Commission have greater experience with this type of assessment than the court has. What is sought is for a limited number of further facts to be found and then assessments to be made upon all of the evidence. That is a role for the Commission and not a court which has limited jurisdiction in this area.

11. I will allow the appeals and, with some reluctance, remit the matters to a different member of the Commission for further consideration. I will hear the parties upon any further directions that they wish to have made in order that the conclusion of this matter may be reached as soon as possible.