Elmes v Carpentaria Shire Council (No 2) [2017] QIRC 39

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Elmes v Carpentaria Shire Council (No. 2) [2017] QIRC 039 PARTIES: Elmes, Neville James (Applicant) v Carpentaria Shire Council (Respondent) CASE NO: TD/2015/96 PROCEEDING: Application for determination of remuneration lost by reason of the dismissal DELIVERED ON: 8 May 2017 HEARING DATES: Application on the papers MEMBER: Deputy President O'Connor ORDERS: (i) The applicant be paid the amounts set out in both Schedules A and B of the applicant's submission dated 14 March 2017, including: (i) 25% of wages and entitlement from 25 November 2015 to 28 April 2016; (ii) a payment in lieu of 50% of his accrued leave in accordance with clause 5.3(b) of the Carpentaria Shire Council - Certified Agreement 2011. (ii) The $21,930 gross earned by the applicant being an "Adjustment for work performed by the Applicant with Gulf Concrete Pty Ltd" be set off against the amount ultimately payable by the respondent. CATCHWORDS: INDUSTRIAL LAW – APPLICATION FOR REINSTATEMENT – APPLICANT REINSTATED – APPLICATION FOR -- 1 of 14 -- 2 Reasons for Decision Introduction [1] On 26 August 2015 an application for reinstatement under s 74 of the Industrial Relations Act 1999 (the "IR Act") was filed by Neville James Elmes ("the applicant") seeking the following orders: "(A) Reinstatement in his former position (or nearly as is possible) without prejudice to the employee's former conditions of employment and remuneration lost between the date the dismissal took effect 19/08/2015 and the date of reinstatement; or (B) Re-employment in another position that the employer has available and that the Commission considers suitable. (C) However, if the Commission considers re-instatement or re-employment would be impractical, the Applicant seeks that the Commission make an order that the employer pay the employee an amount of compensation the Commission considers appropriate. (D) Other orders sought." [2] The application for reinstatement was heard in Cairns on 20, 21 and 22 June 2016. [3] On 11 November 2016, the Commission made the following orders: DETERMINATION OF REMUNERATION LOST BY REASON OF THE DISMISSAL – where employer had obligation to provide suitable duties for the applicant – where the employer did not provide suitable duties CASES: Industrial Relations Act 1999, s74, s 274A, sch 5 Workers' Compensation and Rehabilitation Act 2003, s228 Carpentaria Shire Council Certified Agreement 2011 Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 Carey v President of the Industrial Court Queensland & Anor [2004] QCA 62 Elmes v Carpentaria Shire Council [2016] QIRC 118 X v Commonwealth [1999] 200 CLR 177 -- 2 of 14 -- 3 (i) The application is granted; (ii) Pursuant to s 274A of the Industrial Relations Act 1999, I declare that the purported termination of the applicant on 19 August 2015 was invalid; (iii) That the applicant be reinstated to his former position with the respondent; (iv) The reinstatement is to be on the basis that the applicant's continuity of service is maintained; and (v) The respondent is to pay the applicant the remuneration lost by reason of dismissal to be agreed or failing agreement to be the subject of a further application to the Commission. [4] An agreement could not be reached between the parties with respect to applicant's remuneration lost by reason of his dismissal. [5] On 2 March 2017 the Commission made the following consent orders: 1. The amount of remuneration to be paid by the respondent to the applicant pursuant to the decision of Deputy President O'Connor dated 11 November 2016 be assessed by the Commission. 2. The assessment be carried out on the papers, without the need for appearances by either party. 3. The applicant file in the Commission and serve upon the respondent written submissions addressing the method the Commission should adopt to assess the applicant's lost remuneration, no later than 2 weeks from the date of this Order. 4. The respondent file in the Commission and serve upon the applicant written submissions addressing the method the Commission should adopt to assess the applicant's lost remuneration, no later than 2 weeks from the date that the applicant's submission are served on the respondent. 5. The applicant file in the Commission and serve upon the respondent written submission in reply no later than 1 week from the date the respondent serves its submissions on the applicant. 6. Liberty to apply on 3 days' notice. Applicant's Claim [6] The applicant seeks orders from the Commission with respect to his entitlement to 25% of his wages from 25 November 2015 to 29 April 2016 together with 25% of his entitlements during the same period as follows: (a) Locality Allowance ($3,194.36 per annum); -- 3 of 14 -- 4 (b) Annualised Salary Allowance ($0.1373 per hour); and (c) CWA Allowance ($0.6340 per hour) [7] The $21,930 gross earned by the applicant being an "Adjustment for work performed by the Applicant with Gulf Concrete Pty Ltd" should be set off against the amount ultimately payable by the respondent. [8] The applicant makes a claim for unpaid personal leave arising from his resignation on 20 February 2017. Respondent's position [9] In short, the respondent rejects the applicant's claim that he is entitled to 25% of his wages from 25 November 2015 to 29 April 2016. [10] The respondent accepts that the Camp Allowance would have accrued and is payable for the period claimed, namely 26 May 2016 to 11 November 2016. Equally, it is agreed by the respondent that the Unused Banked Time for the period of 26 May 2016 to 11 November 2016 is also payable at the rate claimed. [11] The respondent accepts that if the Commission finds against the respondent in respect of the wages claim, the Locality Allowance, the Annualised Salary Allowance and the CWA Allowance then they are all payable for the period 25 November 2015 to 28 April 2016 at the rate claimed in Schedule B to the applicant's submissions. [12] The respondent also submits that the Commission has no jurisdiction to deal with the claim for unpaid personal leave arising from the applicant's resignation on 20 February 2017 as that amount does not arise from the dismissal nor any of the Commission's orders made on 11 November 2016 or 2 March 2017. Wages Claim [13] The applicant submits that had his employment not been terminated by the respondent on 19 August 2015 he would have returned to employment on or about 25 November 2015 in accordance with a suitable duties plan. [14] It is not in contention that the applicant was fit to return to normal duties from 29 April 2016 and that remuneration is payable from that date. [15] What remains in contention between the parties is the applicant’s claim for wages from 25 November 2015 to 28 April 2016. [16] The respondent accepts that it has an obligation under s228(1) and (2) of the Workers' Compensation and Rehabilitation Act 2003 to take all reasonable steps to assist an employee. That section relevantly provides: -- 4 of 14 -- 5 "228 Employer's obligation to assist or provide rehabilitation (1) The employer of a worker who has sustained an injury must take all reasonable steps to assist or provide the worker with rehabilitation for the period for which the worker is entitled to compensation. (2) The rehabilitation must be of a suitable standard as prescribed under a regulation." [17] The respondent submitted that it would be impracticable for it to find the applicant suitable duties that were appropriate for his level of education and experience in an office or clerical role. The respondent's submission was put in the following way: "As to the Applicant's capacity to undertake desk or office work, in cross examination the Applicant's oral evidence was that he had completed primary education to grade 4 level, had never held an office job and did not have clerical or computer skills." [18] The evidence before the Commission, on the other hand, was that the applicant had a number of tickets and qualifications, but importantly, and for present purposes, the applicant had held an office position as the following extract from the transcript of proceedings clearly demonstrates: "MS FANTIN: Mr Elmes, what is your standard of education? What year did you finish high school? Mr ELMES: I never went to high school. MS FANTIN: Okay. What year did you finish school? Mr ELMES: Grade 4 primary. MS FANTIN: And you’ve worked in road construction for many years, haven’t you? Mr ELMES: Yes, I have, in all sorts of constructions. MS FANTIN: And you’ve got a lot of tickets and qualifications - - - Mr ELMES: Yes. MS FANTIN: - - - to operate machinery and heavy vehicles? Mr ELMES: Yes. MS FANTIN: I take it, you’ve not worked in an office in your work history? -- 5 of 14 -- 6 Mr ELMES: I have. I worked for – as a mine site manager for Brambles Manford in Western Australia. In open-cut mine I was manager, the site manager there."1 [Emphasis added] [19] Moreover, the applicant submits that the applicant had a physical desk in the respondent's office and a laptop computer was provided to him to undertake his duties as a Roads and Construction Foreman. [20] It was also submitted that the applicant attended a Microsoft Project Management course with the Mount Isa Institute of TAFE. In June 2012, the applicant obtained a Certificate II in Business. In or about July 2013, the applicant commenced a Certificate III in Civil Construction (Road Construction and Maintenance). The applicant's attendance at the course was cancelled consequent upon the termination of his employment. The attendance of the applicant at these courses, and his subsequent level of attainment, would have been known to the respondent as his employer. [21] The applicant's submissions make reference to his Position Description and, in particular, it was submitted that the applicant was clearly capable of performing the following: (i) Monitor expenditure and use of plant and equipment assigned to construction and maintenance teams on all jobs; (ii) Assist in the compilation of work and maintenance programs including special maintenance and rehabilitation maintenance; (iii) Perform routine tasks including preparation of reports, authorise employee timesheets and private plant daily documents. [22] I do not accept that the respondent has taken "all reasonable steps" to assist the applicant in obtaining suitable duties. [23] In cross-examination, Mr Leaver, the respondent's Workplace Health and Safety Advisor told the Commission: "MS CALLAGHAN: Okay. Now, in your position and with the knowledge that you had, you – you drafted a suitable duties plan for Mr Elmes, didn’t you, that you considered would be – would be appropriate for him? MR LEAVER: I did, yes. MS CALLAGHAN: And in fact, that suitable duties plan entailed Mr Elmes going back to the normal worksite but making sure that he didn’t do any – any physical work and just undertake the supervisory jobs – supervisory duties of his role; that’s correct, isn’t it? MR LEAVER: That is – that is correct, yes. 1 T1-17 Ll. 14-28. -- 6 of 14 -- 7 MS CALLAGHAN: Okay. And in fact, you’ve written on the proposed suitable duties program on – I’m not sure there’s a date on there, but you’ve written on the suitable duties programs that: Mr Elmes is employed in a supervisory capacity and any physical activity should be voluntary. There should be no reason why he could not fulfill a guidance and mentoring role while restricting any continued physical activity. MR LEAVER: Under – under a proposed suitable duties program, I believe that to be true. That’s an altered – altered duties program. MS CALLAGHAN: And you based the modified duties on the – on the restrictions that were contained within the medical certificates? MR LEAVER: Yes. MS CALLAGHAN: Can you tell me what – on what date you actually drafted that? MR LEAVER: Can I just – I believe that was on the 22nd of August. Can I just confirm that with my notes? MS CALLAGHAN: Certainly? MR LEAVER: Sorry, it was the 20th. On the 20th of the 8th, I have – I’ve written that I’ve prepared a suitable duties program based on the position description of a construction foreman, and I’ve used that Compensation – Workers’ Compensation medical certificate to guide me in that."2 [24] In the reasons for decision dated 11 November 2016, I wrote: "On 3 September 2014, a meeting was held between the Chief Executive (Mr Bob Owen), Human Resources Manager (Ms Lisa Ruyg), Works Manager (Mr Jack Parry), Director of Engineering (Mr John Teague) and Workplace Health and Safety Advisor (Mr Peter Leaver). The purpose of the meeting was to discuss a Suitable Duties Program ('SDP') for the applicant. Mr Leavers said in evidence that he was advised by management that the applicant's injury created too much of a liability for Council in having him in a construction workplace. As a consequence of that advice, and an alleged reluctance by the applicant to participate, Mr Leavers said that he abandoned any efforts to formulate a SDP for the applicant."3 [25] Whilst Mr Leavers had developed a draft SDP for the applicant on or about 20 August, 2015 it is clear from the following extract of my reasons that as early as 5 August 2015 a decision had already been made about the applicant's future: 2 T1-81 Ll. 6-35. 3 Elmes v Carpentaria Shire Council [2016] QIRC 118, [13]. -- 7 of 14 -- 8 "Ms Ruyg said she contacted Mr Doug Furness from LGW on 5 August 2015. Mr Furness was not called to give evidence. However, the evidence of Ms Ruyg was that she was advised by Mr Furness that LGW was seeking further information regarding the applicant's capacity to return to work from Dr Morrey and was also seeking a further medico-legal report from Dr Foote in September 2015. What is clear from the evidence of Ms Ruyg is that LGW informed her that it was seeking further medical advice as they did not know whether or not the applicant would ever be fit to return to his employment. Further, a medico-legal report was being sought from Dr Foote so that LGW could determine whether the applicant's injury could "be declared stable and stationary." Following the conversation with Mr Furness, Ms Ruyg said she reviewed the relevant legislation "…to see if CSC could consider terminating Mr Elmes's employment." On the same day she met with Mr Owen to tell him of the conversation she had had with Mr Furness. It was during this meeting that Mr Owen decided to issue a Show Cause Notice. Mr Owen accepted in cross-examination that at the time of issuing the show cause notice he had no information to determine the fitness of the applicant to undertake his duties.4 In cross-examination, Ms Ruyg was asked: So your primary aim at that point was to terminate Mr Elmes' employment? That irrefutable, isn't it? ---Yes.5"6 [26] Ms Ruyg in her evidence to the Commission said that: "MS CALLAGHAN: Now, I’m going back to the show cause notice on 5th of August 2015. At the time that that show cause notice was issued it’s fair to say, isn’t it, that the council had failed to provide any suitable duties to Mr Elms? MS RUYG: That’s correct. MS CALLAGHAN: And that you had no medical assessment of his impairment against his inherent requirements of his job? MS RUYG: Do you mean an independent medical assessment… MS CALLAGHAN: I mean… MS RUYG: …outside of the workers’ compensation? 4 T2-51 Ll. 11. 5 T2-23 Ll. 1-2. 6 Elmes v Carpentaria Shire Council [2016] QIRC 118, [59]-[63]. -- 8 of 14 -- 9 MS CALLAGHAN: I mean any medical assessment that you had in your hands on which you could base your decision? MS RUYG: Not in my hand. No. MS CALLAGHAN: You’d had no discussion with Mr Elms personally about the cause of his illness? MS RUYG: Not personally. No. MS CALLAGHAN: You’d had no discussion with either his treating doctors, or the independent doctor, about the nature and limitations of his injury? MS RUYG: No, not myself. That was, as I said, the domain of the return to work coordinator. MS CALLAGHAN: And as – in your role, as the HR manager, you had no detailed assessment of the risk that Mr Elms may, or would pose to himself or other employees on the construction workplace, did you? MS RUYG: That’s provided in the – a risk assessment done, do you mean? MS CALLAGHAN: Yes? MS RUYG: No. I didn’t have a risk assessment. MS CALLAGHAN: There was no risk assessment done of what risk to safety may be posed by Mr Elms, either to himself or his fellow employees, if he returned to the construction worksite, had there? MS RUYG: It was a risk to Neville himself, not to fellow workers. MS CALLAGHAN: But there’d been no risk assessment of that had there? MS RUYG: I’m unaware if that had been done through… MS CALLAGHAN: Wouldn’t that be you that would do that? MS RUYG: No. It would be the return to work coordinator."7 [27] As was concluded in the reasons for decision: "It is clear from the evidence that the Council had all but decided to terminate the applicant following the meeting on 5 August 2015. No attempts were made following the meeting on 3 September 2014 to develop a suitable duties programme. Indeed, Mr Owen acknowledged that he put a stop to the meeting because no one could advise as to what the applicant could or could not do."8 7 T2-29 Ll. 1-34. 8 Elmes v Carpentaria Shire Council [2016] QIRC 118, [109]. -- 9 of 14 -- 10 [28] The evidence further demonstrates that there was no medical or other assessment as to the fitness of the applicant to return to work. The respondent did not seek to have the applicant examined by an independent medical specialist. Right up until the applicant was dismissed, the respondent had no understanding as to what the applicant was or was not capable of doing. [29] It was submitted that "the medical certificates imposed significant restrictions on the "suitable duties" that the Applicant was allowed to undertake and the number of hours he could work". The respondent contends that it was a genuine occupational requirement that for the position of a Roads and Construction Foreman the employee be able to engage in some physical or manual labour including lifting, carrying, pushing and pulling. [30] The medical certificates do not, contrary to the submission of the respondent, demonstrate that the applicant was unable to comply with the inherent requirements of his position during the relevant period. The medical certificates of 25 November 2015 and 17 February 2015 certify that the applicant could engage in some physical or manual labour including lifting, carrying, pushing and pulling, albeit limited in some instances by weight. He was only excluded from operating machinery and heavy vehicles. [31] The Proposed Suitable Duties Program completed by Mr Leavers described the physical demands of the applicant's pre-injury position physical demands as: "Principal task supervision and paperwork associated with roadwork."9 [32] In his "Rehabilitation & RTW Coordinator Case Notes", Mr Leavers records the following: "The indication was that for a range of reasons Mr Elmes would not be considered for a suitable duties plan." 10 [33] The applicant's wages claim is for a period from 25 November to 29 April which coincides to the wet season which extends, according to the evidence from November and up to April. During that period of time, the position of Foreman, Roads and Construction is based in Normanton. In his evidence, the applicant stated: "During the wet season, the work involved maintenance work, road clean up works, roadside and litter cleaning around Normanton itself. This might involve supervising the men for whipper snipping road sides, clearing drainage areas by the roads or clearing debris, cleaning and managing park areas and other council property maintenance."11 [34] The submission of the respondent that the applicant would not be capable of performing this type of supervisory work is not, in my view, supported by the evidence. 9 Ex. 6, Affidavit of Peter Rodney Leaver, PRL5. 10 Ex. 6, Affidavit of Peter Rodney Leaver, PRL9. 11 Ex. 1, Affidavit of Neville James Elmes, [14]. -- 10 of 14 -- 11 [35] I accept that the applicant's role as Foreman was predominately supervisory in nature and nothing contained in the medical certificate issued between 25 November 2015 and 8 April 2016 would suggest that he was unable to perform suitable duties as set out in the medical certificates. To use the words of Gummow and Hayne JJ in In X v Commonwealth, the assessment of an inability to perform the inherent requirements of a position must be assessed in a practical way, it is an inability not a difficulty that must be demonstrated. 12 [36] The respondent had a clear obligation under both s228 of the Workers' Compensation and Rehabilitation Act 2003 and the Local Government Workcare Scheme - Corporate Rehabilitation Procedures13 to provide suitable duties for the applicant. It did not do so. Personal Leave [37] The applicant makes a claim for unpaid personal leave arising from his resignation on 20 February 2017. [38] The respondent opposes the claim on the basis that the Commission has no jurisdiction to deal with it as it does not arise from the dismissal nor any of the Commission's orders. [39] It is contended by the respondent that a claim for personal leave is not "remuneration lost by reason of the dismissal". It arises, on the submission of the respondent, only because the applicant chose to resign. [40] In the alternative, the respondent contends that the applicant has no entitlement to a claim of 50% personal leave because of the operation of clause 5.3(b) of the Carpentaria Shire Council - Certified Agreement 2011 which provides: "From 12 May 2001, 50% of all personal leave accrued after 12 May 2001 and not taken will be paid to each employee at termination. To obtain this benefit, each employee must supply a doctor's certificate on each occasion when the employee uses personal leave, after one day of leave is taken." [41] Clause 5.2.1. of the Carpentaria Shire Council - Administrative Agreement 2013 provides: "(a) To assist with the phase out of the current provisions for 50% payout of personal leave on termination, Council will within 3 months of the date of this agreement, enter into a payout agreement with each employee eligible for payout of personal leave as of this date under the current clause. (b) The maximum payout for eligible employees will be 50% of the personal leave accruals at 10/12/2013, multiplied by the employee's current hourly rate at the time the employee's employment ends. 12 X v Commonwealth (1999) 200 CLR 177, 208 [101]. 13 Ex. 6, Affidavit of Peter Rodney Leaver, PRL9. -- 11 of 14 -- 12 (c) In recognition of the lack of communication around the 50% payout provision, those employs ineligible due to the medical certificate provision in clause 5.2.1(c) will be granted a maximum payout amount of 30% of the personal leave accruals at date of certification, multiplied by the employees' current hourly rate at the time the employee's employment ends. (d) Payout will occur on termination of employment and will be the lesser of the 30/50% of the employee's personal leave accrual on termination or the employee's maximum payout accrual as per the payout agreement (whichever is lesser), multiplied by the employee's hourly rate on termination. (e) Previous provision for historical purposes "From 12 May 2001, 50% of all personal leave accrued after 12 may 2001 and not taken will be paid to each employee at termination. To obtain this benefit, each employee must supply a doctor's certificate on each occasion when that employee uses personal leave, after one day of leave is taken."" [42] On the respondent's submission, upon the purported dismissal of the applicant on August 2015, his entitlement to 50% of all personal leave accrued as at 10 December 2013 was paid out in full. [43] The Carpentaria Shire Council - Administrative Agreement 2013 is not, according to the records of the Commission, a certified agreement registered with the Commission in accordance with the Industrial Relations Act 1999. As a consequence, the Carpentaria Shire Council - Certified Agreement 2011 has not been replaced and remains in force. The applicant was entitled to accrue personal leave for the period of 19 August 2015 until he was reinstatement on 11 November 2016. [44] The Carpentaria Shire Council Certified Agreement 2011 must be read in conjunction with Local Government Officers Award 1998. [45] The termination provision of the Local Government Officers Award as contained in clause 31.2.1 is essentially in the same terms as provided for in the applicant's letter of employment dated 21 September 2011 ('the contract of employment'). Clause 15(f) of the contract of employment provides: "The notice of termination required to be given by you is the same as that required of Council, except that there is no requirement on you to give additional notice based on your age." [46] The clause enables either party to terminate the contract on the provision of the required notice. [47] On termination by either party, the applicant is entitled to a payment of 50% of all personal leave accrued after 12 May 2001 and not taken. [48] Under clause 16 of the contract of employment, the applicant’s leave entitlements are to be determined with reference to the Carpentaria Shire Council Certified Enterprise Agreement 2004 (Carpentaria Shire Council Certified Enterprise Agreement 2011) and in accordance with the relevant legislation. -- 12 of 14 -- 13 [49] It was submitted by the applicant that the entitlement to a 50% part-payment of personal leave in lieu of taking personal leave on termination of his employment falls within the concept of 'remuneration' and is a matter that is within the jurisdiction of the Commission. I agree. [50] In the reasons for decision dated 11 November 2016, the Commission ordered that the applicant's "…reinstatement is to be on the basis that the applicant's continuity of service is maintained."14 [51] The definition of remuneration under the Industrial Relations Act 1999 is, relevantly: "remuneration— (a) for a provision relating to work of equal or comparable value, includes— (i) the wage or salary payable to an employee; and (ii) amounts payable or other benefits made available to an employee under a contract of service; and …."15 [52] Wages, as defined by the Industrial Relations Act 1999 is, insofar as it is relevant, in the following terms: "wages means— (a) an amount payable to an employee for— … (iii) leave the employee is entitled to; or (iv) termination of employment; or .…" 16 [53] In my view, "remuneration" in the present circumstances would include a payment made to an employee of amounts arising out of a benefit contained within the Enterprise Agreement or under a contract of service. [54] The submissions of the respondent place too narrower a view on the meaning of reinstatement. In Carey v President of the Industrial Court Queensland & Anor McPherson JA wrote: "Reverting to the issue of reinstatement, s78(2) authorises reinstatement of the employee "to the employee’s former position", which is to be "on conditions at least as favourable as the conditions on which the employee was employed immediately before the dismissal". The provision does not in terms authorise reinstatement on conditions more favourable than those that prevailed before dismissal. This inevitably raises the questions concerning the meaning of the expression "position" or "former position". These words are not defined in the 14 Elmes v Carpentaria Shire Council [2016] QIRC 118, [127]. 15 Industrial Relations Act 1999 sch 5 (definition of 'remuneration'). 16 Ibid (definition of 'wages'). -- 13 of 14 -- 14 Act; but in my view it is plain that its meaning or effect can be gathered only from reference to the terms and conditions on which the employee was engaged before dismissal. After all, it was the employment or engagement that created or gave rise to "the position", and it is to that position that the appellant seeks reinstatement."17 [55] In Blackadder v Ramsey Butchering Services Pty Ltd McHugh J wrote: "To construe the power "to reinstate" as confined to restoring contractual or other legal rights fails to give full effect to the term "reinstate". To reinstate means to put back in place. In this context, it means that the employment situation, as it existed immediately before the termination, must be restored. It requires restoration of the terms and conditions of the employment in the broadest sense of those terms."18 [56] Immediately prior to the dismissal, the applicant was entitlement to a 50% part- payment of personal leave in lieu of taking personal leave on termination of his employment. I do not why his position should not be restored to that which applied immediately before the dismissal. Conclusion [57] For the reasons advanced above, the applicant is entitled to the amounts set out in both Schedules A and B of the applicant's submission dated 14 March 2017, including: (iii) 25% of wages and entitlement from 25 November 2015 to 28 April 2016; (iv) a payment in lieu of 50% of his accrued leave in accordance with clause 5.3(b) of the Carpentaria Shire Council - Certified Agreement 2011. [58] The sum of $21,930 gross earned by the applicant being an "Adjustment for work performed by the Applicant with Gulf Concrete Pty Ltd" be set off against the amount ultimately payable by the respondent. [59] Order accordingly. 17 Carey v President of the Industrial Court Queensland & Anor [2004] QCA 62, [17]. 18 Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539, 544-5 [14]. -- 14 of 14 --