Doyle v Trans North Bus & Coach

[2016] FWC 2665

[2016] FWC 2665

DECISION

Fair WorkAct2009

s.739 - Application to deal with a dispute

Mr Russel Doyle

v

Trans North Bus & Coach

(C2016/375)

SENIOR DEPUTY PRESIDENT

BRISBANE, 4 MAY 2016

RICHARDS

Dispute notification – whether appropriate Classification; alleged dispute about any matters

arising under the modern Award and the NES; s146 – whether C5 or higher classification

warranted - C10 classification - National Metal and Engineering Industry Competency

Standards

[1] This decision concerns an application under section 739 of the Fair Work Act2009

(“the Act”) and arises from an application by Mr Russel Doyle, who has notified a dispute

under the Manufacturing And Associated Industries And Occupations Award 2010 (“the

Award”) in relation to whether not his employer – Trans North Bus and Coach Pty Ltd (“the

employer”) - has correctly classified his position under the Award.

[2]        The employer is a family owned business operating buses in North Queensland (which

falls within a larger group of coach and bus services companies – the Donric Group). The

business operates through some nine bus depots throughout North Queensland. The

employer’s business principally involves providing bus services for transferring children to

and from school, but appears to provide some incidental individualised charter services as

well.

[3]        The employer’s business comprises some 150 employees, most of who appear to be

engaged as permanent part-time employees given the nature of the school bus timetable.

[4]        Some of the nine depots have a workshop in them, which is said to have been manned

by maintenance staff whose job it is to provide mechanical maintenance of the busses. Each

depot has a Depot Manager. Mr Doyle worked in the workshop at the Innisfail bus depot.

[5]        Mr Doyle himself did not give evidence in the proceedings. It was open for him to do

so, but his representative did not seek to press his claims through evidence as such (though

other witnesses led evidence on his behalf). There may be reasons for this approach, but they

were not disclosed. In what follows I refer to Mr Doyle, but in doing so I am only referring to

his submissions as pressed, and not claims through his direct evidence.
[2016] FWC 2665

[6]        In order to determine the appropriate Classification into which Mr Doyle falls under

the Award it is necessary to examine a range of factors. I set some of these out immediately

below as indicative of the kinds of interrelated concerns the Commission ordinarily

investigates in respect of a Classification dispute.

[7]        A particularly salient factor (or point of investigation) in determining Mr Doyle’s

appropriate Classification is the principal purpose for which Mr Doyle is employed, along

with the type of work and duties (as evidenced) that he is required primarily to perform as an

employee. Written documents and position descriptions can assist in this regard, though they

are not always determinative on their own. Consideration is also to be given to Mr Doyle’s

knowledge and experience, and technical skills and qualifications (so far as they are required

to be exercised in relation to the duties and work that he is required to be performed). Mr

Doyle’s level of responsibility, which reflects on the extent to which he is required to exercise

judgement, exercise supervision over other employees, act autonomously and to be called to

account for his decision making, can be a pertinent consideration as well.

[8]        In some other circumstances, the nature of the work may change, by evolution or

suddenly (such as by business acquisition or the introduction of new technology) and the

work value can change as a consequence, as new skills and responsibilities are exercised.

[9]        Mr Doyle contends that he is under classified and should, with reference to his

recognised qualifications, be classified at no less than a C5 level of Classification under the

Award, and in all likelihood at a higher level.

[10]      Mr Doyle contends that his Classification should also be determined through

recognition and application of the National Metal and Engineering Industry Competency

Standards (“the Competency Standards”). This matter was not the subject of any discussion

at the conciliation conference in relation to the dispute notice and it was not pressed in Mr

Doyle’s application either. However, Mr Doyle claims (in his submissions in reply) that there

was in actuality, a reference to the Competency Standards in an earlier meeting with the

employer (and seemingly this formed part of the wider dispute). The employer does not take

any jurisdictional point in this regard, and I have proceeded on the basis that the application is

competent.

[11]      It is enough to say at this point, however, that the evidence led by Mr Doyle did not

attest to the completion of the Competency Process. Mr Doyle gave no evidence himself in

relation to the dispute, let alone the manner in which he had participated in the prescriptions

relating to the implementation and the application of the competency standards.

Mr Doyle’s written claims

[12]      Mr Doyle argued that his position description as agreed with his employer was a

strong and leading indicator of his claims. Mr Doyle claimed that its language was of

sufficient scope to attract the kinds of duties and responsibilities that attracted a higher

Classification, at no less than a C5 Classification in the Award.

[13]      The C5 level Classification carries an Award relativity of 130% and a first two

Classification title such as Engineering Technician Level V, Advanced Engineering

Tradesperson Level II, Graduate Engineer level I, and Graduate Level I. The minimum
[2016] FWC 2665

training requirements in respect of the C5 Classification are the Advanced Certificate or

equivalent Diploma in Engineering.

[14]      Mr Doyle’s letter of appointment, dated 5 August 2007 refers to his position as being

that of a Mechanic\Driver\Cleaner.

[15] Mr Doyle appears on his submissions to have had workplace recognition in

accordance with the standards (seemingly at least in respect of a 1982 qualification as a Diesel

and Heavy Lifting Earthmoving Equipment Tradesperson). He held that he has now been

officially signed off and verified as having completed units of competency by a person he

claims to be an appropriately accredited person which, when combined, are in excess of the

total points required for the Diploma of Engineering Advanced Trade.

[16]      Mr Doyle asserts that the level of classification that best captures his agreed position

description is the C5 Classification referred to above. However, he further contends that he

has additional duties which are captured by the C4\C3\and C2 (b) Classifications which all

refer to higher degrees of mechanical knowledge and other skills of a managerial nature.

[17]      In this latter respect, Mr Doyle contended that he exercised skills and responsibilities

under the C2 (a) – Principal Supervisor\Trainer\Coordinator Classification, in so far as he was

said to be an employee:

“[…] who is mainly engaged to perform work supervising or coordinating the work of

other employees and who has sufficient additional training beyond that of those

coordinated or supervised so as to enable the employee to perform work within the

scope of this level […]”.

[18]      Mr Doyle held in this regard that he had been managing the performance of one other

mechanic at Innisfail depot and advising mechanics at the other bus depots (in Atherton,

Mission Beach and Bowen).

[19]      Mr Doyle further held in this regard that he carried out on a daily basis, duties of a

Managerial nature and which did not involve any physical or mechanical work. He held that

these duties were carried out daily and in accordance with his level of qualifications. Some of

the witness’ evidence suggested that Mr Doyle may have been referred to as the “Workshop

Manager”, which was held to be supportive of Mr Doyle’s claim to exercise managerial

responsibility.

[20]      Mr Doyle claimed that the agreed position description indicates that his Classification

was above the C5 Classification as most of his duties were of a managerial nature. Mr Doyle

claimed to have been held out to be the Lead Mechanic and that this was his position over a

lengthy period of time.

[21]      These claims were reflected, it was argued, in the agreed position description.

[22]      Mr Doyle led various witnesses in support of his written submissions. I will deal with

these further below.
[2016] FWC 2665
The employer

[23]      The employer concedes that Mr Doyle’s position title is that of Lead Mechanic.

However, it explained that Mr Doyle’s responsibilities only relate to the maintenance of the

busses (including ordering parts for those buses) which operate out of the Innisfail depot and

it is only his Mechanical Trade Certificate that is required to give effect to his suite of duties

and responsibilities.

[24]      The Depot Manager at Innisfail was Mr Paul Rinaudo. He held that position between

2002 and 2014, after which time he became the General Manager of the employer’s business.

Mr Rinaudo explained that when Mr Doyle was first employed he was employed to perform a

variety of duties as driver, cleaner and mechanic. The reference to the function of cleaner

refers to the fact that drivers often performed duties that require them to keep their buses

clean.

[25]       Mr Doyle, it was said by Mr Rinaudo, ceased being a driver for reasons of complaints

about his conduct while performing his duties as a bus driver. It was agreed that Mr Doyle

would thereafter concentrate his role as a mechanic in the Innisfail workshop. This occurred

around 2011 or so.

[26]      Mr Rinaudo held that Mr Doyle was not a Workshop Manager and his role as Lead

Mechanic has only evolved informally over time, for reasons the he has a continuous period

of employment whereas other mechanics have a tendency to remain employed for only short

periods of time, before moving on. Ms Kerry Norman, the Innisfail Depot Manager, had only

heard the title of Workshop Manager used by Mr Doyle himself and then only in what she

described as a “sarcastic manner”.

[27]       The position of Lead Mechanic, Mr Rinaudo held, sits beside the position of

Driver\Cleaner on the employer’s organisational chart (which was attached to the position

description). Both these positions report to the Depot Manager, who in turn reports to Mr

Rinaudo as the General Manager.

[28]      Mr Rinaudo explained that the Innisfail workshop comprises only one mechanic,

currently: that is Mr Doyle. There had been an apprentice but he had left recently. There had

up until February this year been another mechanic employed in the workshop but that

mechanic had resigned in February 2016. There is an apprentice at Mission Beach, and Mr

Rinaudo said he intermittently came up to the Innisfail workshop (but only on the basis of

about once a week).

[29]      Mr Rinaudo held that it was not Mr Doyle but rather the former mechanic – Mr

Weigand - who provided day-to-day supervision of the apprentice whilst the apprentice was

employed. Mr Weigand gave evidence in these proceedings. He held that Mr Doyle did not

want to supervise the apprentice. Mr Weigand also gave evidence that Mr Doyle performed

more of a Foreman role in the workshop but could not be described as a Workshop Manager

as such (and has never been referred to holding such a position). Mr Weigand accepted that

Mr Doyle was taken to be the Lead Mechanic in the workshop.

[30]      Mr Rinaudo disagreed that Mr Doyle ever oversaw to staff in the workshop or that he

designed and manufactured any parts of any significance. Ms Kerry Norman, the Innisfail

Depot Manager, gave evidence to the same effect. Ms Norman did concede that on occasions
[2016] FWC 2665

Mr Doyle might use welding equipment to repair a frame or stairs on the busses but that this

was an irregular task and fell within the range of duties of a Lead Mechanic

[31]      Mr Rinaudo maintained that there is an interchange between depots, through which

mechanics discuss whether they have encountered similar problems. Mr Doyle was involved

in such interactions, but such interactions do not lead to a conclusion that Mr Doyle was

providing supervision or exercising managerial control over any other persons in any other

depots.

[32]      Both Mr Doyle and Mr Weigand explained that if they were unable to complete a

repair on a bus it would be necessary to call in contractors. Mr Weigand said that both he and

Mr Doyle use contractors when the mechanical issues went beyond their skill sets. Both Mr

Doyle and Mr Weigand would also order parts as required. However in doing so, Mr Rinaudo

pointed out that they were restricted to ordering parts unilaterally that cost less than around

$800. If parts were required that cost more than $800 also, it was necessary to obtain Mr

Rinaudo‘s authorisation.

[33]      Mr Rinaudo held that Mr Doyle does not hold any delegation in the business to hire or

fire any employees or to give pay rises or to performance manage any employees. This

responsibility remained with Mr Rinaudo as general Manager. The Depot Manager at

Innisfail, Ms Kerry Norman, gave evidence to the same effect.

[34]      Mr Rinaudo did concede that Mr Doyle interacts with drivers and is required to do so

because the drivers indicate whether or not they have experienced any mechanical problems

with their bus. Mr Doyle, in doing so, has no managerial authority or supervisory authority

over those drivers (who report to the Depot Manager). Ms Kerry Norman, the Depot Manager

at Innisfail, gave evidence of the types of interactions she would have as a bus operator with

Mr Doyle and these extended to reporting about simple issues such as air leaks.

[35]      Mr Rinaudo claimed that many of the subjects and units which Mr Doyle maintains

have been subject to in a workplace verification report are unrelated to his position and are

not required to be exercised by him. Mr Doyle is unaware of the particular workplace assessor

who signed off on the various subjects and units as that person does not work for him and has

no role in overseeing Mr Doyle as a Supervisor or Manager. As said above, Mr Rinaudo

maintained that Mr Doyle only required his Trade Certificate to perform his job as Lead

Mechanic and no other qualifications were needed to be called upon to complete his range of

duties, and Mr Doyle had never been requested to obtain additional qualifications in any

event. Mr Rinaudo indicated that the other mechanic at the other workshop in Ingham,

performing a comparable employment role to Mr Doyle, possessed only a Trade Certificate to

perform his duties and responsibilities.

Consideration

[36]      Having heard the evidence in this matter I consider that Mr Doyle’s claims to be a case

of overreach, and represent an attempt to utilise the language of the Classifications and

Competency Standards to over inflate what were more modest responsibilities within his

actual role, as required by his employer.

[37] The employer, admittedly, has not helped itself by providing Mr Doyle with a position

description which is couched in the usual high level, generic language which is amenable to
[2016] FWC 2665

being construed in terms of the higher levels of the Award Classification Structure. But in the

end, as a matter of evidence, Mr Doyle’s position was as Lead Mechanic (as set out on his

position description) in the Innisfail bus depot within his employer’s business, where he was

the designated Lead Mechanic in a particularly small workshop (at best with only one other

mechanic and an apprentice for periods of time).

[38]      Thus, where the position description referred to Mr Doyle’s principal objectives to be

“to manage and coordinate activities of employees in servicing, maintenance and repair of the

bus fleet and associated equipment by performing [prescribed] duties personally or through

subordinate personnel”, Mr Doyle worked with one other mechanic for the most part, and had

at best some oversight related interaction with an apprentice, in a single, small work shop (for

the most part with two other employees of whom one was an apprentice). Mr Doyle did not

supervise or direct the tasks of other mechanics outside of the Innisfail workshop (though he

may out of a sense of collegiality have assisted them informally on the basis of his experience

when they contacted him).

[39]      Mr Doyle’s own witnesses were not of any assistance to his claims in this regard.

While some effort was made to assert that Mr Doyle was known generally as the Workshop

Manager, the evidence under examination was less direct.

[40]      Mr Winkelman provided a written statement that suggested Mr Doyle’s position in the

Innisfail Depot is “well above the role of just a mechanic”. When pressed for specific details

relating to the tasks additional to the role of a Lead Mechanic, Mr Winkelman pointed to Mr

Doyle “organising parts and stuff like that” however when asked if this was actually within

the role of a Lead Mechanic, Mr Winkelman conceded that it was.

[41]      Mr Winkelman also mused as to whether Mr Doyle might be a foreman or a Manager,

or “whatever you want to call him”.

[42]      When pressed for other specific details of the role Mr Doyle undertook (above and

beyond the role of just a mechanic) Mr Winkelman agreed that Mr Doyle was more of a Lead

Mechanic or a Foreman and that is what he thought his statement was saying when he signed

it.

[43]      Mr Winkelman further conceded that he did not have any accurate knowledge as to

whether or not Mr Doyle performed management tasks such as hiring or firing people, giving

pay rises, performance management

[44]      Mr Winkelman also conceded that Mrs Doyle, Mr Doyle’s representative, had

prepared the statement before Mr Winkelman had seen it or reviewed it, and that he then

signed it because he agreed with what she had written in it. He was of the belief that he had

given evidence that Mr Doyle was a Lead Mechanic:

“So based on your answers, when you refer to Mr Doyle as the workshop manager,

you mean more in the sense that he's the lead mechanic, don't you, or the foreman?

Yes, more or less that's what I meant - that's what I thought I was signing.

[45]      Mr Winkelman accepted that Mr Doyle’s daily discussions with Bus Drivers was not

evidence of a Management role but rather related to mechanical issues and conceded this was

part the role of a mechanic.

[2016] FWC 2665

[46]      Mr Winkelman also conceded he had a limited opportunity to observe Mr Doyle’s

actual role within the workshop because as a Driver he was usually not in the workshop, a

final point in concession that clouded the relevance of Mr Winkleman’s evidence in its

entirety.

[47]      Mr Paul Jenkins, the Manager of Innisfail Trans North Bus & Coach Depot from May

2010 to July 2013, conceded that Mr Doyle did not have the authority to hire or fire staff, nor

to grant pay rises or approve leave requests, or to issue warning letters or conduct

performance reviews. Mr Jenkins, when pressed if he had intended to say that Mr Doyle was a

Workshop Manager agreed that he had actually meant Mr Doyle’s role was more of a

Foreman or Leading Hand, but reinforced that he was known as the Workshop Manager.

[48]      Mr Jenkins’ written statement claimed that Mr Doyle’s role was “extensive and not

limited to mechanical duties” but agreed that specific duties Mr Doyle performed beyond that

of simply being a mechanic, such as being responsible for two other mechanic staff members,

and liaising with drivers, were consistent with a Lead Mechanic’s role:

MR AUSTIN-WOODS: “Based on the answers you have just provided, the term

"workshop manager", the impression I am getting is that it may be that you probably

meant it to be understood in terms of Mr Doyle more being a foreman or a leading

hand […] as opposed to a manager; is that right?

MR JENKINS: Yes, that - yes, I guess so, yes, but I - to me, he was always known as

the workshop manager. Whatever you need to call him, that's up to you, but that's

what I referred to him as.”

[49]      Mr Jenkins pressed that Mr Doyle did in fact design and manufacture devices to

maintain the buses, but couldn’t say how often it had occurred, or point to or describe any

actual instances or examples of Mr Doyle having designed or manufactured any items:

MR AUSTIN-WOODS: “In paragraph 3, you say:

Mr Doyle's position required, at times, for him to design, manufacture and implement

different devices to maintain the buses.

When you say "at times", do you mean on a daily basis or was this approximately once

a month?

MR JENKINS: That would be hard to say.

MR AUSTIN-WOODS: Can you give - - -?

MR JENKINS: It would be hard to put a timeline on anything like that. It was just

when required.

MR AUSTIN-WOODS: Because, part of being a small workshop, people have to

sometimes do things a little bit peripheral to their main duties; would that be right?

MR JENKINS: I guess.

[2016] FWC 2665

MR AUSTIN-WOODS: What did you actually see Mr Doyle design?

MR JENKINS: I can't remember now.”

Finding
[50]	Mr Doyle was not required to carry out performance management of any employees

under his supervision, or to discipline or hire and fire staff. Mr Doyle may have been expected

to give training to apprentices, but this was of a limited kind in actuality, and as might be

expected of an experienced tradesperson. Similarly so, his role to “monitor […] inventory

[…]” was of a modest dimension in reality, and incidental to the requirements of small

workshop in Innisfail, and not a more complex site with logistics systems, for example.

[51]      Mr Doyle does not perform any task or responsibility of any genuine complexity

(which attracts the higher Classifications in the Award) and exercises skills within the

ordinary range of a Trade Level Certificate. Mr Doyle’s level of supervision was more akin to

that of a Foreman than a Manager: he did not performance manage subordinate employees in

a formal sense, and he was responsible for some day to day work allocation and prioritisation

in relation to one other mechanic for a period – though Mr Weigand claimed that effort was

nominal as the workload in a small workshop was self-evident and required little direction.

Mr Doyle’s interactions with other mechanics at other depots did not extend to the exercise of

formal responsibilities, and his role in relation to apprentices from a supervisory perspective

was negligible, in reality (as I have mentioned).

[52]      Mr Doyle may have undertaken some manufacturing or fabrication work incidental to

his duties (and not a principal requirement) and if he did so it was no doubt was of value to

his employer. But there was no actual evidence to this end, and even it were true, it is work

which falls short of being an integral requirement of the job, with manufacturing and

fabrication of metals and parts not being referred to in his position description.

[53]      I consider the evidence of Mr Weigand, Ms Norman and Mr Rinaudo to be sound and

reliable in respect of his description of the purpose for which Mr Doyle was employed and the

nature of the work and the duties he was required to be performed in that role. Though Mr

Doyle may have criticised their lack of mechanical qualifications they did not strike me at all

as being uninformed about the nature of his work and responsibilities (particularly in light of

Mr Doyle himself having given no evidence in support of his own submissions).

[54]      Further, Mr Doyle held that he had obtained competencies in excess of the Diploma of

Engineering Advanced Trade. But there was no proof to this end: I have no evidence of the

satisfactory completion of the prescriptive Competency Standards Procedure (noting in

addition that Mr Doyle’s employer had no appreciation whatsoever that Mr Doyle was

seeking to enhance his qualifications outside of the workplace before such time as the claims

were made in this dispute).

[55]      There was also some absence of clarity around the method by which Mr Doyle had

come to have Workplace Verification Reports signed by a diesel parts supplier across the

road, and whether that process would meet the ultimate TAFE Assessor’s requirements.

Irrespective of all of this however, Mr Doyle’s position does not, in the evidence before me,

require the exercise of a qualification of the kind Doyle says he has acquired or is near to
[2016] FWC 2665

acquiring. The position description, which attaches to a job position as Lead Mechanic, does

not require anything other than a Trade Certificate for the relevant position, and the duties and

responsibilities as disclosed through the evidence support this position.

Conclusion

[56]      It appears to me that Mr Doyle performs duties as a Lead Mechanic, requires a Trade

Certificate, and carries out mechanical tasks of a limited range and without the exercise of any

formal supervision of any number of employees, or at least with very limited supervisory

responsibilities. He exercises no managerial authority, and bears no managerial related

responsibilities or accountabilities. His interaction with other employees at other depots and

with contractors and external suppliers is of a limited nature and does not extend his range of

accountabilities in any significant way.

[57]      Mr Doyle’s position and role is best described as one which falls within the C10

Trades Classification of the Award referred to above. Perhaps, at times, he may attract the

Leading Hand Allowance in accordance with the Award, but the number of employees in the

workshop may not trigger the threshold requirement set out in the Award for such payments

particularly often. That is a matter that would need to be monitored, however.

[58]      Further, I do not consider that Mr Doyle to have been a party to any process which has

led to the proper application of the competency standards to his position, and in any event

consider that the outcome of such a process, had it been completed, would yield no different

result. This is because – as I have said above – his position does not require nor does it

demand such a qualification.

[59] As a consequence of my findings above, Mr Doyle’s application under section 739 of

the Act for purposes of a review of his Classification under the Award is not made out and is

dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms Lynda Doyle for the Applicant

Mr Ed Austin-Woods, Solicitor for the Respondent

Hearing details:

[2016] FWC 2665

Brisbane

Wednesday 27 April 2016

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