Allan Ricci v Tech Mahindra Limited
[2023] FWC 412
•21 FEBRUARY 2023
| [2023] FWC 412 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Allan Ricci
v
Tech Mahindra Limited
(C2022/6337)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 21 FEBRUARY 2023 |
Application to deal with a dispute under an award.
On 15 September 2022, Mr Alan Ricci (the Applicant) applied to the Fair Work Commission (the Commission) to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (the Act) under the dispute resolution procedure at clause 40 of the Clerks – Private Sector Award 2020[1] (the Award). The Respondent in the matter is Tech Mahindra Limited.
In the Form F10 application, the Applicant identified the dispute as being in relation to whether he was correctly classified under the Award (the Classification Dispute) and whether he had received penalty rates to which he was entitled to under the relevant award for the particular shifts he had worked.
The Classification Dispute may be shortly summarised as follows. The Applicant is engaged as an Associate – Customer Support with the Respondent and works in the 5G team which provides call centre support to 5G Telstra customers and is currently classified under the Award at Level 2 – Call centre customer contact officer grade 1 (Level 2). He contends that his classification is not correct and that the proper classification based on his competence, skills, qualifications and duties is that of either Level 3 - Call centre customer contact officer grade 2 (Level 3) or Level 3 - Call centre principal customer contact specialist (Level 3 - Customer Contact Specialist).
Conciliation conferences were held on 18 October & 3 November 2022 but failed to resolve the dispute.
Jurisdiction
Section 739 of the Act empowers the Commission to deal with certain disputes under enterprise agreement or award dispute settlement terms. Clause 40 of the Award sets out the following dispute resolution term;
“40. Dispute resolution
40.1 Clause 40 sets out the procedures to be followed if a dispute arises about a matter under this award or in relation to the NES.
40.2 The parties to the dispute must first try to resolve the dispute at the workplace through discussion between the employee or employees concerned and the relevant supervisor.
40.3 If the dispute is not resolved through discussion as mentioned in clause 40.2, the parties to the dispute must then try to resolve it in a timely manner at the workplace through discussion between the employee or employees concerned and more senior levels of management, as appropriate.
40.4 If the dispute is unable to be resolved at the workplace and all appropriate steps have been taken under clauses 40.2 and 40.3, a party to the dispute may refer it to the Fair Work Commission.
40.5 The parties may agree on the process to be followed by the Fair Work Commission in dealing with the dispute, including mediation, conciliation and consent arbitration.
40.6 If the dispute remains unresolved, the Fair Work Commission may use any method of dispute resolution that it is permitted by the Act to use and that it considers appropriate for resolving the dispute.
40.7 A party to the dispute may appoint a person, organisation or association to support and/or represent them in any discussion or process under clause 40.
40.8 While procedures are being followed under clause 40 in relation to a dispute:
(a)work must continue in accordance with this award and the Act; and
(b)an employee must not unreasonably fail to comply with any direction given by the employer about performing work, whether at the same or another workplace, that is safe and appropriate for the employee to perform.
40.9 Clause 40.8 is subject to any applicable work health and safety legislation.”
It was not contested that the question to be determined by the Commission, which is set out below, is capable of constituting a dispute over a matter under the Award. Nor was it in dispute that the steps taken by the parties to resolve the dispute constituted compliance with the clause 40 of the Award. Having regard to the information contained in the Form F10 application and the views of the parties, I am satisfied that the Commission has jurisdiction to deal with the dispute, including by consent arbitration as provided by Clause 40.5 of the Award.
In correspondence to my Chambers on 17 & 18 November 2022 the Applicant and Respondent confirmed their agreement to the Commission exercising its consent arbitration powers under the dispute resolution clause of the Award in determining the Classification Dispute. The matter was subsequently programmed for determination by consent arbitration.
Issue for determination
The parties agreed on the following question for determination by the Commission:
“What should the Applicant’s classification be under the Clerk’s – Private Sector Award 2020”.
The hearing
The matter was initially listed for hearing on 23 January 2023 but was adjourned and re-listed for hearing on 30 January 2023, in advance of which the parties filed witness statements and material on which they intended to rely in accordance with directions issued.
At the hearing, the Applicant appeared and led evidence from the following witnesses;
Tanya Draper – Associate Customer Support with Tech Mahindra Limited
Anusha Chilukuri – Associate Customer Support with Tech Mahindra Limited
Sakshi Gupta – Associate Customer Support with Tech Mahindra Limited
Shruti Menon, who is the HR Manager, appeared on behalf of the Respondent and led evidence from the following witnesses;
Jeeson Jeemon – Team Leader with Tech Mahindra Limited
Wayne Pham – Trainer with Tech Mahindra Limited
Honeylet Knoll – Trainer Manager with Tech Mahindra Limited
Applicant’s case
Evidence of Anusha Chilukuri
Anusha Chilukuri was not required for cross-examination by the Respondent. She states in her evidence[2] that she is employed by the Respondent as an Associate – Customer Support (Associate), works within the same team as the Applicant and commenced her employment on 5 September 2022. She variously states that;
in her first two weeks of her employment, she received training by a trainer employed by the Respondent;
that during the training she was advised by the trainer that staff were required to be “on-ready,” that is ready to take calls at the start of their shift;
that the time and work required to log on, set up and check all of the ‘tools’ used during calls were to be done prior to the commencement of their shift and was unpaid; and
that such work took her about 15 minutes.
Evidence of Sakshi Gupta
Sakshi Gupta produced a witness statement[3] for the proceedings and was called to give evidence. She states she is employed as an Associate with the Respondent; she commenced on 2 May 2022 and works in the same team as the Applicant which manages 5G Home Internet support calls on behalf of Telstra (the 5G Team).
Ms Gupta states in her evidence that during her training which she undertook in the first two weeks of her employment, along with the rest of the team being trained she was advised by the trainer of the quality assurance metrics including the average handling time (AHT) and other call handling metrics that would apply to them. She further states that the trainer advised that if the targets in the quality assurance metrics were not met, additional training would be provided and if after that additional training targets were still not being met, employees would be dismissed. She also referred to being told of the requirement to meet 80% for all the QA targets, failing which an employee would be dismissed after two failed efforts[4].
During cross-examination, Ms Gupta was pressed but confirmed her evidence regarding the quality metrics. She did however advise that she always met her QA metric targets and had not been subject to retraining or performance management. She also confirmed that the AHT for calls was 700, that number being the average seconds per call target communicated to the team.
Evidence of Tanya Draper
Tanya Draper produced two witness statements[5] for the proceedings and was also called to give evidence. She variously states in her evidence that;
she commenced employment with the Respondent as an Associate in the 5G Team on 2 May 2022;
along with the rest of the 5G Team she was advised during training about the quality metrics, including the AHT that would apply to their calls, the repeated failure to meet which could, after retraining lead to dismissal[6];
the position description she received on commencement was a one line statement and she has not been told what award classification level she is engaged at[7];
in relation to the training provided on commencement, she states it was generally to a good standard but there were few practical examples of how to manage customer enquiries or apply the tools, there were no notes provided in the training and it was up to the training participants to take their own notes[8];
while provided with information on the 5G product during the training, she says that the trainer advised that the best way to learn in answering other queries related to billing and email issues was by taking calls as it was unlikely participants would remember all the information[9];
participants in the training were told by the trainer they could handle any out of scope queries they were comfortable dealing with[10];
the 5G team is the first ‘onshore’ team in Australia providing 5G Assurance and that despite being told by their Team Leader Mr Jeemon that there was a good chance a subject matter expert (SME) would be chosen from the team with only twelve or so agents, no one has yet been promoted to the SME role[11];
while there was an SME available initially, there has not been one for some months, resulting in the Applicant and herself providing much of the required support to Associates in the 5G Team[12];
the Associate is required to use a range of call centre packages and technical support tools in answering customer queries and managing the calls, which she says comprises approximately sixteen different programs or tools, which took her time to understand[13];
if an Associate is unable to resolve a customer’s issue, they are able to ask other team members for assistance or escalate the ticket to the network or back of house (BOH) teams[14];
the incidence of her escalation of unresolved issues has declined as she gained more experience to the point where she now escalates very few issues[15];
Mr Jeemon as the Team Leader does not provide support to Associates with their day-to-day calls, he told Associates shortly after he commenced as Team Leader that his role is mainly administrative and Ms Draper receives little coaching from him[16];
most of the support provided to Associates is through a team chat forum in which the Applicant is highly active as shown by his attempts to try and answer every question posed by members and also that he often posts a “heads up” about interesting calls and resolutions[17];
the Applicant has also prepared and provided detailed training notes[18] which she and her colleagues have found extremely useful in resolving customer inquiries[19];
the Respondent has been slow to follow up on or provide clear guidance to Associates on particular enquiries, for example; Xbox chat functions failing, modem return issues, VPN issues, modem replacement issues and provisioning issues[20]; and
the importance of the AHT is emphasised by the Respondent which Ms Draper says has been the subject of coaching by Mr Jeemon[21].
Ms Draper was cross-examined in relation to her evidence and in response to various questions from the Respondent variously stated as follows;
the quality metrics she was required to meet included the AHT, how long customers were on hold and call time after expectations set;
Associates were only allowed three seconds between calls and take on average take ten calls per day;
in dealing with an out of scope query regarding a bill, Associates can go to the Customer’s profile, obtain a copy of their bills and provide information from that bill but if a customer wants to challenge a bill it would be necessary to transfer the call to Telstra’s billing department;
Associates provide support to each other through the team chat as they all work remotely from home and Mr Jeemon had asked her to provide support to less experienced team members;
Associates share individual notes to help each other but these are not as extensive as those developed by the Applicant;
the scope of what is within and out of scope for an Associate to deal with is not defined by policies or procedures;
in dealing with customer inquiries, Associates can apply credits to customers of up to $49.95, which she says she would apply once or twice a month;
In response to a question on the packages and technical support tools used by Associates, Ms Draper detailed several tools used and how/when they may be used to assist resolve a customer inquiry. She stated that not all of the tools are used with every customer inquiry but it may be necessary to use a number of the tools on a particular customer inquiry to try and identify the problem and resolve the customer issue. The main tools used include;
A tool that checks for outages in a particular area;
A modem tool which evaluates the speed from the ‘tower to the modem.’
CDR live tool which assesses which tower a customer is connecting to;
Netmaps which is used to identify the tower nearest to the customer;
Findhawk which identifies tower outages; and
Docket viewer which provides tower outage updates.
If after working through the issues with the customer the modem is still not working, a modem replacement may be arranged or the issue may be escalated as a network issue. She agreed that this approach was consistent with required protocol. She also agreed when using the various tools, it was a case of putting in the relevant customer details and the tool would produce the required information needed by the Associate.
Evidence of Applicant
The Applicant possesses the qualification of Bachelor of Applied Science (Computing) which he obtained from Monash University in 1986[22]. Prior to joining the Respondent, the Applicant worked as a Call Centre Operator with the Probe Group for approximately 12 months and prior to that role held several information technology roles following his graduation. Those roles included that of Solutions Architect, Systems Analyst and Applications Support Analyst in a range of large public and private sector organisations[23].
The Applicant commenced employment as an Associate with the Respondent on 2 May 2022 on a 12 month maximum term contract of employment[24] (Contract of Employment). His Contract of Employment, while not specifying the relevant award coverage or classification level under the award, set out the terms and conditions of employment which included a Gross total remuneration package of $55,000 inclusive of superannuation. A Position Description was provided in Annexure A to the Employment Contract which was limited to stating that the Applicant was required to;
“Comply with procedures and support the customers to meet its duties under the relevant safety and environmental legislation.”
The Applicant relied on various documents that supported his submission that Associates were measured on and/or required to meet particular known metrics including that of AHT. The documents relied on by the Applicant were as follows;
a Team Performance Report for the month of December[25] which was shared with the 5G team, showed the relative performance of all team members and identified that the Applicant had highest aggregate performance over the 4-week period;
a table provided to Associates in May 2022 (the 5GHI Voice - May Table) which set out the various metrics including that of AHT, ENPs, Not ready% and Quality Score[26];
the above-referred 5GHI Voice - May Table in providing metrics included columns specifying both ‘Target’ and ‘Cap’ which in the case of AHT specified a target of 1000 and a cap of 1200;
an email from Mr Jeemon dated 9 September 2020 in which he included a table of individual team member and overall team performance[27];
on 2 November 2022, Mr Jeemon sent an email to 5G Team members advising them that the AHT target was 650, observing that the team was currently experiencing a higher AHT and requesting that the team wrap up calls faster[28];
a series of emails from Mr Jeemon on 9 September 2022, 16 September 2022, 24 November 2022, 2 December 2022 in which Mr Jeemon requested Associates to speed up their calls[29];
A table of Associate performance for the month of October 2022 (the October Call Metrics) distributed to all 5G Team members which included the performance against the various metrics including AHT and call transfers[30];and
chat log dated 22 September 2022 in which Mr Jeemon urged the 5G Team “to be faster in delivering your answers”[31]
The Applicant also referred to documents that indicate he routinely demonstrates a high level of initiative in the performance of his work and that his rate of customer transfer was lower than that of his colleagues. The documents included;
the October Call Metrics table which showed his rate of internal customer transfer was the lowest of the 5G Team at 19%, compared to the team average of 35%[32];
various November QA and Coaching emails from Mr Jeemon which indicated the Applicant went beyond the requirements of the role, that his rate of internal customer transfer was low and that he should strive to further reduce it[33];
an email chain which highlighted the research the Applicant had personally undertaken to resolve an out of scope problem faced by a customer (unable to send emails) when Platinum Telstra had declined to take the call unless the customer agreed to the relevant fees[34];
chat log posts that confirmed the out of scope action taken by the Applicant to address a modem delivery issue that arose when a customer had moved to a different residential address and the modem could not be delivered[35];
chat log post that confirmed out of scope action taken by the Applicant to overcome a modem return issues when the customer was unable to drop the modem off at the local post office that was closed[36]; and
a summary of network escalations by staff within the 5G Team for the month of October 2022, which reveals the Applicant had one of the lowest number of escalations, that being three[37].
In support of his contention that he was required to adhere to strict timekeeping requirements, which he said highlighted the pressure to work within known time constraints, the Applicant referred to the following documents in his evidence;
Schedule entries which identified times that Associate must be available to take calls and when breaks may be taken[38];
chat log exchange between Mr Jeemon and the Applicant regarding starting times in which the Applicant is told he must be ready “on the dot” at the start of shift[39];
a lengthy on-line chat involving the Applicant and Mr Jeemon during which break time compliance was clarified[40]; and
an email from the Applicant to Menon Shruti in which starting times (i.e. “on the dot”) was raised along with the Applicant’s reference to an “unlawful threat” from Mr Jeemon that “any sick leave taken on the following Saturday would result in a final warning”[41].
One of the contentions of the Applicant is that he and other Associates receive only general guidance from the Team Leader, they do not have access to an SME, are required to provide a high level of support to newer staff and do not receive prompt responses from the Team Leader or Respondent on technical or policy issues. The Applicant referred to the following evidence in support of these contentions;
chat logs dated 22 September 2022 which confirm the lack of an SME and a request from Mr Jeemon that new team members reach out to the Applicant for support[42];
chat logs revealing the need for the Applicant and other experienced Associates to provide technical support[43];
chat log exchange between the Applicant and Mr Jeemon in which the Applicant expresses frustration regarding the lack of a timely response on an outstanding query regarding who bares the cost of packaging for a modem being returned, the customer or Telstra[44];and
chat logs which show Associates’ use and appreciation of the training notes prepared by the Applicant[45].
The Applicant also refers to personal recognition he received for his performance. This can be seen firstly in emails[46] from both Mr Jeemon and the Operations Lead, Issa Forbes singling the Applicant out for recognition and secondly, the GBS Weekly Newsletter[47] from Thomas Purvis dated 4 November 2022 and addressed to all GBS staff in which the Applicant along with several other staff were recognised for their work.
Case for the Respondent
Evidence of Honeylet Knoll
Ms Knoll was not required for cross-examination by the Applicant. She states in her evidence[48] that she has been the Respondent’s Training Manager since 31 January 2022 and that potential “end of employment” arising from failure to meet AHT or quality metrics is not mentioned or highlighted in the training undertaken across the business. She did however acknowledge that the importance of these metrics, especially the quality metrics is emphasised in the training.
Evidence of Wayne Pham
Mr Pham was not required for cross-examination by the Applicant. He states in his evidence[49] that he has worked as a Trainer for the Respondent since 11 April 2022. He confirmed Ms Knoll’s evidence that the potential for dismissal is not highlighted in training when discussing AHT or quality metrics not being met. He also states however that the importance of these metrics is emphasised in the training.
Evidence of Jeeson Jeemon
Mr Jeemon produced two witness statements[50] for the proceedings and was called to give evidence. He states he is the Team Leader for the 5G Team which consists of a total of thirteen members and he has been in his role since 2 May 2022. He states that his role requires him to support and manage the day to day activities of the customer service officers working in support of Telstra’s 5G service.
Mr Jeemon explained that 5G went live in Australia in June 2022 and that the Respondent’s 5G Team is an inbound point of contact for end user customers with inquiries related to modem broadband issues[51]. The primary role of Associates is to receive calls from customers and perform general trouble shooting with the aid of available tools to resolve customer enquiries while using contact centre telephony technology[52]. He further states that most customer enquiries relate to basic speed, network dropout, Geolock Wi-Fi, order status etc. These queries are he says, managed via generalised troubleshooting which requires established procedures to be followed such as power on/off, reset, moving the modem to different location in the property and advising customer on power outages and Wi-Fi related queries[53].
Mr Jeemon states that Associates answer on average 10-12 calls per day. A sample of the Applicant’s average calls per day was provided for September and October 2022 which revealed AHT’s for those two months of 901 and 1130[54].
Mr Jeemon then outlined the process followed by Associates in addressing a customer enquiry. Once the customer’s query is understood, the Associate follows known steps to review the information provided by the customer by using the various tools available to the Associate. This involves the Associate updating the customers details in the various tools which then run the diagnostics and provides accurate status/results which are then relayed back to the customer[55]. He further states that Associates are trained to use the work instructions provided during their training and “My knowledge articles and Support point” access is shared with Associates to check for process flow and guidance[56].
Mr Jeemon goes on to state that if a customer query is not resolved through the diagnostic or first level trouble shooting the next step is for the Associate is to raise it as an “INC to NW/BOH team for further investigation and resolutions”[57]. Me Jeemon also states that Associates sometimes receive calls from customers that are sales related, involve data credits or billing issues with 5G agents and in these circumstances are expected to transfer the calls to the relevant departments[58].
In terms of receiving support or assistance regarding customer queries, Mr Jeemon states that Associates make use of the team chat platform to raise real time queries. This is effective as Associates work from home. Associate coaching, mentoring and performance improvement plan activities are delivered by supervisors only according to Mr Jeemon. According to Mr Jeemon, Associates can also reach out to him to get an understanding of next steps if they come across an issue that is outside of their training[59].
Mr Jeemon was cross-examined at length on the issue of whether Associates were required to meet certain metrics including being required to “work within know time constraints” and was specifically questioned about the AHT. In response to that questioning he variously stated as follows;
when taken to the 5GHI Voice – May[60] table, he agreed that he received a copy of the table which included quality and AHT metrics but resisted the proposition that the table imposed a limit on the time Associates were expected to resolve calls within, and could not explain the meaning of the term “Cap” where it appeared as a column header in the table;
agreed that no staff had breached the “Cap” in terms of their AHT performance;
stated that the Applicant’s AHT time was higher than some of his colleagues which reflected that he tried to assist customers rather than transfer the customer to another department;
agreed that a higher AHT might reflect an Associate putting greater effort into resolving a customer’s query;
while agreeing that he referred to the AHT target of 650 in a chat log dated 2 November 2022[61], he claimed that the AHT of 650 was not a set target but was a figure provided by Telstra and agreed that half of the 5G Team had an AHT in excess of 650;
explained that the purpose of his sharing a table of comparative 5G Team member performance[62] measured against quality and AHT metrics on 12 October 2022 was intended to encourage team member performance against all measures;
while claiming in his First Witness Statement that he had not initiated any coaching of team members for having a hight AHT, he conceded that he had ‘coached’ the Applicant on his AHT, as evidenced by the ‘November QA and Coaching’ email[63] on 14 November 2022;
confirmed that no employees within the 5G Team had been subject to or were currently on a performance improvement plan (PIP)
Mr Jeemon was also questioned regarding timekeeping requirements imposed on Associates and variously stated that;
Associates were expected to be ready to start taking calls “on the dot” at the start of their shifts, while acknowledging that it takes 5-10 minutes to log on and be ready to take calls;
if an Associate is not ready to start “on the dot,” they are expected to put in an exception report each day, which most Associates do; and
in respect of his chat log exchange with the Applicant on 16 December 2022[64] on schedule compliance, he confirmed that Associates cannot take breaks whenever they like, there is a general requirement to work according to the schedule and that Associates could “go early” by up to two minutes.
When questioned in relation to whether there is a Position Description for Associates, Mr Jeemon agreed that there wasn’t one and conceded that the one line Position Description found at Annexure A of the Applicant’s Contract of Employment did not provide much information.
Mr Jeemon was also pressed on the level of technical support he was able to provide to Associates in his capacity as Team Leader. Mr Jeemon variously stated as follows;
he agreed that he does not provide day-to-day support to Associates and accepted that his level of knowledge in relation to matters dealt with by Associates was less than Associates as he did not handle customer calls on a regular basis;
claimed that he did provide support where he was able to assist;
agreed that Associates went to more experienced Associates such as the Applicant for assistance;
rejected that a screenshot of a table showing the results of a course[65] undertaken by him indicated that he had the lowest score of the participants and explained that there was a problem with the course reporting which was subsequently fixed;
also rejected that he had sought answers from 5G Team members who had completed the Fraud Detection and Prevention 2022 in a chat log dated 21 December 2022[66] and explained that by his request for “people who have done it can you share me the answers please” he wanted team members to advise him once they had completed the course;
confirmed that he takes approximately two escalation calls per month out of between 2500-300 calls taken by 5G Team members each month; and
in providing support to Associates, Mr Jeemon says he now listens to approximately four customer calls per Associate each month as a means of enabling him to provide feedback to Associates.
In relation to the scope of the Applicant’s role, the provision of policy guidance to Associates and the Applicant’s performance, Mr Jeemon stated the following during cross-examination;
he agreed in response to questioning on the lengthy chat log about billing inquiries exchange dated 3-9 September 2022 with the Applicant (and others), that Associates were not required to transfer such calls if they can answer questions regarding the customer’s bill;
he conceded that resolution of the modem return packaging cost policy took time to get an answer and while acknowledging that the Applicant on his own initiative went to a local post office and confirmed that Telstra bore the packaging cost rather than the customer, stated that the Applicant was not required to take such action;
did not recall that the Applicant had advised him that he had a Computer Science degree;
agreed that the Applicant had the highest performance in the 5G Team;
agreed that the Applicant was the only 5G Team member that has received a commendation;
confirmed that he had not recommended any member of the 5G Team for promotion from Level 2 to Level 3 under the Award classification structure and further stated that he would not recommend such a promotion even if the employee’s skills had increased over time;
while emphasising that the Applicant was not required as part of his role to undertake out of scope work, he agreed that several examples raised by the Applicant (as set out above at [23]) highlighted that the Applicant exercised initiative in attempting to resolve customer inquiries;
in relation to the Applicant’s resolution of an out of scope SMTP server issue raised by a customer, the resolution of such issues by Associates was not the standard process expected;
while acknowledging the Applicant’s initiative, he rejected that the Applicant’s actions go beyond that required of a Level 2 employee;
agreed that the Applicant exercised a fair degree of initiative and judgement in his role;
agreed that resolution of customer inquiries is completed by the Applicant without checks by supervision;
agreed that the Applicant has a high degree of autonomy when closing out ‘customer tickets;’ and
agreed that the Applicant has a low number of escalations as revealed by the document dated 20 October 2022[67] that summarised Network escalations.
Consideration
Award classification process
Before turning to the question to be answered it is necessary to consider the process required to correctly classify an employee under the Award. The process for classifying employees under the Award is found at Schedule A – Classifications structure and Definitions and is specifically described at A.1 as follows;
“A.1 Classifying employees
A.1.1The classification criteria in this Schedule provide guidelines to determine the appropriate classification level of employees covered by this award. In determining that level, consideration must be given to both the characteristics and typical duties and skills of the level.
A.1.2However, the characteristics are the primary guide to classification as they indicate the level of basic knowledge, comprehension of issues, problems and procedures required and the level of supervision or accountability of the position. The totality of the characteristics must be read as a whole to obtain a clear understanding of the essential features of any particular level and the competency required.
A.1.3The typical duties and skills are non-exhaustive lists of those that may be required within the particular level. They are an indicative guide only and, at any particular level, employees may be expected to undertake duties of a lower classification level. Depending on the particular task, employees at a given level may perform or exercise one or more duty or skill listed.
A.1.4The key issue to be looked at in properly classifying an employee is the level of competency and skill that the employee is required to exercise in the work they perform, not the duties they perform as such.
NOTE 1: Some duties and skills appear in more than one level, however assigning a classification needs to be done by reference to the specific characteristics of the level. For example, an employee must be classified at Level 2 when they have achieved the level of skill and competency envisaged by the characteristics and the relevant indicative duties and skills of a Level 2. Therefore, an employee who operates a word processor or typewriter is not automatically to be classified at Level 2 despite word processing and copy typing being first specifically mentioned at Level 2.
NOTE 2: Level 1 is to be viewed as the level at which employees learn and gain competence in the basic clerical skills required by the employer, which in most cases would lead to progression through the classification structure as their competency and skills increase and are utilised.”
From the above I discern the following analysis is to be undertaken in identifying the Applicant’s correct classification under the Award;
identify the characteristics, typical duties and skills required by the Applicant in his role;
(ii)compare those characteristics, typical duties and skills required by the Applicant with the characteristics, typical duties and skills of the relevant classification levels;
the primary guide in the analysis is to be drawn from the characteristics of the relevant classification levels;
(iv)the totality of the characteristics must be read as a whole;
the typical duties and skills are not exhaustive and nor must all duties and skills be undertaken in order for an employee to be classified at a particular level; and
(vi)the key issue to be looked at is the level of competence and skill required to be exercised, not the duties performed.
As earlier stated, the Applicant is currently classified at Level 2 of the Award which is relevantly defined as follows;
“A.3 Level 2
A.3.1 Characteristics
(a) This level caters for employees who have had sufficient experience or training to enable them to carry out their assigned duties under general direction.
(b) Employees at this level are responsible and accountable for their own work which is performed within established guidelines. In some situations detailed instructions may be necessary. This may require the employee to exercise limited judgment and initiative within the range of their skills and knowledge.
(c) The work of employees at this level may be subject to final checking and, as required, progress checking.
(d)Employees at this level may be required to check the work or provide guidance to other employees at a lower level or provide assistance to less experienced employees at the same level or any combination of one or more of these requirements.
……………………………
A.3.3 Typical duties and skills—Call centre customer contact officer grade 1
(a) A call centre customer contact officer grade 1 is employed to:
(i)use known routines and procedures;
(ii)have some accountability for quality of outcomes;
(iii)receive calls;
(iv)use common call centre technology;
(v)enter and retrieve data;
(vi)work in a team;
(vii)manage their own work under guidance;
(viii) provide at least one specialised service such as sales and advice for products and services, complaints or fault enquiries and data collection surveys.
(b) A call centre customer contact officer must be classified at this level if they hold a Certificate II in Telecommunications (Customer Contact) or equivalent and are employed to perform the duties and skills listed under clause A.3.3(a).”
The Applicant contends that he should be classified at either Level 3 or Level 3 - Customer Contact Specialist, which are relevantly defined as follows;
“A.4.1 Characteristics
(a) Employees at this level have achieved a standard to be able to perform specialised or non-routine tasks or features of the work.
(b)Employees at this level require only general guidance or direction and there is scope for the exercise of limited initiative, discretion and judgment in carrying out their assigned duties.
(c) Employees at this level may be required to give assistance or guidance (including guidance in relation to quality of work and which may require some allocation of duties) to employees in Levels 1 and 2 and should be able to train such employees by means of personal instruction and demonstration.
……………
A.4.3 Typical duties and skills—Call centre customer contact officer grade 2
(a) A call centre customer contact officer grade 2 is employed to:
(i)perform a broader range of skilled operations than grade 1;
(ii)exercise some discretion and judgment in the selection of equipment, services or contingency measures;
(iii)work within known time constraints;
(iii)provide multiple specialised services to customers (including complex sales, service advice for a range of products or services, and difficult complaint and fault inquiries);
(v)deploy service staff using multiple technologies;
(iv)exercise a limited amount of leadership over less experienced employees.
(b)An employee must be classified at this level if they hold a Certificate III (Customer Contact) or equivalent and are employed to perform the duties and skills listed under clause A.4.3(a).
* NOTE: These typical duties and skills may be either at Level 3 or Level 4 depending on the characteristics of that particular level.
A.5 Call centre principal customer contact specialist
Employees at this level are employed to:
(a) perform a broad range of skilled applications; and
(b) provide leadership as a coach, mentor or senior staff member, and provide guidance in the application and planning of skills; and
(c) work with a high degree of autonomy with the authority to make decisions in relation to specific customer contact matters; and
(d) take responsibility for the outcomes of customer contact and resolve complex situations.”
In now turning to consider the Applicant’s role it is necessary to observe that a position description that actually described the role and duties of the Applicant’s role was not available to assist in this matter. Nor did the Respondent provide any evidence that detailed the training undertaken by the Applicant or the procedures that the Applicant was required to follow in carrying out his role. The two line statement described as the Position Description at Annexure A in the Contract of Employment is of no assistance at all. Much was made by the Respondent of what the Applicant was or wasn’t required to do in his role, however there was a singular lack of documentation in support of those submissions.
Turning now to the evidence regarding the Applicant’s role, Mr Jeemon explained that 5G went live in Australia in June 2022 and the Respondent is contracted to provide a call centre service via its 5G Team which acts as an inbound point of contact for Telstra customers with inquiries relating to 5G modem/broadband services. The 5G Team was established in May 2022 and comprises approximately 13 Associates which includes the Applicant who commenced with the Respondent on 2 May 2022. The Applicant works remotely from home along with his colleagues.
The primary role of the Applicant is to receive calls from Telstra customers and perform general trouble shooting with the aid of various on-line applications and tools to assist diagnose and resolve inquiries related to modem/broadband speed, network dropout, Geolock Wi-Fi and order status. The process of troubleshooting is undertaken by following established procedures according to Mr Jeemon although no documented procedures were in evidence before the Commission. Customer inquiries are according to Mr Jeemon, managed by way of general troubleshooting which requires established procedures to be followed such as, power on/off, modem reset, moving the modem to a different location in the property and advising the customer of power or network outages.
To assist undertake the general troubleshooting required when addressing a customer inquiry, the Applicant has available some sixteen on-line applications and tools which can be utilised to assist diagnose problems customers may be experiencing. These applications and tools were set out in Ms Draper’s evidence and include tools that can for example; check for 5G tower outages in particular areas, evaluate speed from the relevant 5G tower to the customer modem and assess which 5G tower a customer is connecting to. It may not be necessary for the Applicant to use all tools for each customer but it may be necessary to use several in order to diagnose the issue of a particular customer. When dealing with a customer inquiry and using a particular application or tool, the Applicant is required to enter the customer details into the various tools which then enables the tool to provide accurate status/details which may be relayed to the customer. If the Applicant is unable to resolve the customer inquiry through the above-described process he is able to escalate the inquiry to another technical team for resolution.
A characteristic of the Applicant’s role is that his work is not subject to progress checking or final checking, although it is noted that Mr Jeemon now listens in to several customer calls of each Associate per month as a means of enabling better feedback to Associates. That aside and taking into account that a reasonable proportion of customer inquiries are not resolved by the Applicant but are referred on to another department for technical assistance, the Applicant is able to resolve the customer inquiries he receives within the scope of his skills and competence without reference to Mr Jeemon as his Team Leader.
While the Applicant’s primary function is addressing 5G modem/broadband customer inquiries, he also routinely fields and responds to ‘out of scope’ inquiries. This includes Telstra billing inquiries which the Applicant is able to assist customers with by going into the customer’s account and clarifying details of the bill. Mr Jeemon accepted that the Applicant was not required to transfer an inquiry relating to a bill if he could resolve it himself. Examples of other out of scope inquiries dealt with by the Applicant were set out above at [23] and include the SMTP emailing issue he assisted a customer resolve, which involved him doing his own research.
Mr Jeemon gave evidence in relation to the out of scope inquiries referred to by the Applicant and stated that the Applicant is not required to handle such inquiries. I treat that evidence of Mr Jeemon with caution as it is clear there is an expectation that the Applicant handles and manages such calls to the extent he is capable of assisting a customer. This can be seen by the evidence of Ms Draper regarding the training provided to Associates on commencement when Associates were told they could handle any out of scope queries they were comfortable with.
Despite Mr Jeemon’s evidence, it is plainly apparent that the Respondent allows and encourages the Applicant to handle out of scope inquiries. This can be readily seen in one of the metrics on which the Applicant’s performance is regularly measured, that of his transfer rate (MAE). That is the number of inquiries that Associates are unable to resolve and transfer to another department. The Applicant has the lowest MAE of the 5G Team and his high level of initiative is well known and recognised by Mr Jeemon. Mr Jeemon also encouraged the Applicant to work to further reduce his 20% transfer rate as seen by Mr Jeemon’s November QA and Coaching message to the Applicant on 14 November 2022. Mr Jeemon’s claim in his evidence that the Applicant is not expected to exercise discretion and/or seek to resolve out of scope customer inquiries cannot be reconciled with his specific encouragement and recognition of the Applicant’s initiative.
It rather seems the case that the Respondent is more than happy to encourage and allow the Applicant to work to his full technical skills and competence in resolving customer inquiries, both those in and out of scope, and then claim in these proceedings that he is not required to show such initiative. That position of the Respondent seems to be more one of convenience in resisting the classification claim in these proceedings than a reflection of actual practice. In resisting the classification claim, the Respondent has failed to advance any evidence that the Applicant has been coached, counselled, discouraged or otherwise instructed to refrain from dealing with out of scope inquiries. Nor can the Respondent point to a well-documented position description and/or procedures in these proceedings to aid its case.
It follows from the above that I am satisfied that the Applicant is required to exercise considerable discretion and initiative in his role, subject to his level of skills and competence. The Applicant is highly qualified with a Bachelor of Applied Science (Computing), has many years of experience in systems architecture and systems analyst roles and is considered by Mr Jeemon to be the most competent Associate in the 5G Team. The Applicant also has prior call centre experience and is the only member of the 5G Team that has received a commendation for his customer service. This underscores the point that not only is the Applicant allowed but positively encouraged by management to exercise a high degree of autonomy and initiative that is enabled by the level of his knowledge, skills and experience he brings to the role. Against the above background, for Mr Jeemon to argue in his evidence that the Applicant is not required to exercise initiative and apply his skills and competence to address both in and out of scope inquiries is, with respect, disingenuous.
Another feature of the role is that of the metrics on which the Applicant is regularly measured and provided feedback on. The key metric relied on by the Respondent is that of the AHT which measures the average call time per customer. Mr Jeemon sought to downplay the importance of the AHT however that evidence must be rejected. The AHT is clearly important as can be seen in the regular feedback given to the 5G Team and specifically to the Applicant regarding improving the AHT. See for example the 5GHI Voice – May Table circulated by Mr Jeemon which compared all of the Associates across the various metrics. He specifically conceded that in circulating the Table he wanted to encourage improvement from all the Associates. See also the 2 November 2022 email to the 5G Team when Mr Jeemon referred to the AHT target of 650, observed that the team was currently experiencing a higher AHT and requested that they wrap up their calls faster. Despite Mr Jeemon’s unconvincing evidence on the importance of the AHT, there can be no doubt that the AHT is an important metric and that the Applicant is expected to meet the required standard along with other metrics including the MAE. The fact that no team members have been performance managed or dismissed for consistently failing to meet metrics expectations does not mean the metrics are irrelevant but may reflect healthy team performance against those metrics.
It is also a feature of the Applicant’s role that he does not have access to an SME within the team despite Mr Jeemon having told 5G Team members that an SME was likely to be appointed from within the team. It also must be said that Mr Jeemon is of limited assistance to Associates as he accepted that his level of technical knowledge was less than that of experienced Associates as he was not taking customer calls on a regular basis. In fact, on his own evidence he only took between 2-4 escalation calls per month out of a total of between 2500-3000 customer calls taken by the team each month. The absence of an SME within the team means that the Applicant has played a key role of supporting less experienced Associates. This can be seen through his active participation in the Associate chat logs, his preparation of detailed training notes for use by his colleagues and Mr Jeemon encouraging inexperienced Associates to seek assistance from the Applicant and other experienced Associates.
From the evidence led and the above summary of that evidence I have identified the following characteristics of the Applicant’s role. He is required to;
exercise skill and competence that go beyond the core requirements of the role of providing 5G customer inquiry assistance as he routinely provides out of scope inquiry assistance to a high level of customer service;
perform duties with a high level of autonomy and initiative, for which he has the discretion to exercise within the limits of his skills and competence;
work without access to an SME and without technical support from his immediate supervision;
work is not subject to progress or final checking before finalisation of a customer inquiry; and
provide assistance, guidance and support to less experienced colleagues and regularly does so, including through the provision of detailed training notes.
The typical duties and skills of the Applicant’s role include the following;
· resolve 5G customer inquiries according to established processes through the application of a range of on-line tools and applications which aid diagnosis and troubleshooting;
· refer unresolved inquiries to relevant department for technical assistance;
· manage customer inquiries within known and published timeliness parameters and quality metrics;
· exercise broad discretion and initiative in addressing and resolving out of scope inquiries;
· provide direct support and assistance to less experienced staff;
· work with a high level of autonomy and is able to make decisions to resolve specific customer inquiries;
· takes responsibility for the outcome of his customer inquiry calls.
As made clear in Clause A.1.2 set out above at [40], the characteristics of the role are the primary guide to classification as they “indicate the level of basic knowledge, comprehension of issues, problems and procedures required and the level of supervision or accountability of the position”. It is clear that the Applicant operates at a higher level of skill and competence than his less experienced colleagues. The evidence of that is set out in detail above and is actively encouraged by the Respondent.
In comparing the characteristics of the Applicant’s role that I have set out immediately above at [56] with the Level 3 characteristics defined at A.4.1 of the Award it is plainly apparent that the Applicant;
· while not required to manage specialised tasks, has achieved a standard to be able to perform non-routine tasks or features of the work (A.4.1(a));
· requires only general guidance or direction and there is scope for him to exercise limited initiative, discretion and judgement in performing his assigned duties (A.4.1(b)); and
· is required to provide assistance or guidance to his less experienced colleagues (A.4.1 (c)).
In terms of the skills and duties that he is employed to exercise, I am satisfied that as a consequence of the high level of skill and competence he brings to the role and the encouragement by the Respondent that he should use that those sills, competence and initiative, the Applicant does perform a broader range of skilled operations than a Call centre customer contact officer grade 1 (A.4.3(a)(i)). So much is evident from the role the Applicant plays in supporting his colleagues, his resolution of out of scope inquiries and performance against key metrics, particularly the MAE.
It is also the case that the Applicant is required to operate within known time constraints (A.4.3(a)(iii)) as evident from the reporting and coaching regarding the AHT. He is also measured and subject to coaching in relation to other quality metrics including the MAE. He also exercises a limited amount of leadership over his less experienced colleagues (A.4.3(a)(vi)) as evidenced by Mr Jeemon’s referral of less experienced colleagues to the Applicant for assistance and technical support.
I accept that the Applicant is not required to provide multiple specialised services to customers or deploy service staff using multiple technologies, those being other typical duties of a Level 3 role. That said, the list of typical duties is only indicative, non-exhaustive and at a given level an employee may perform or exercise one or more duty or skill listed.
Having regard to the forgoing and taking into account the totality of the characteristics of the Applicant’s role, and the level of skill and competence he exercises in the performance of the role, the Applicant has comfortably established that he operates at least at the Level 3 classification under the Award.
The Applicant also contends that he ought to be classified at Level 3 – Customer Contact Specialist. That contention must be rejected for the following reasons. Unlike the list of typical duties and skills of a Level 3 role, the typical duties and skills set out a A.5 must be read conjunctively. That is, whereas at Level 3 it was not necessary for all of the skills and duties to be performed in order to be classified at that level, it is the case that at the Specialist level, all of the identified skills and duties must be present.
I accept that the Applicant provides leadership as a senior staff member in the application and planning of skills (A.5(b)) and works with a high degree of autonomy with the authority to make decisions in relation to specific customer contact matters (A.5(c)). He is not however employed to perform a broad range of skilled applications (A.5(a)) or resolve complex situations (A.5(d)). As the Applicant’s role does not require the exercise of all of the skills and duties set out at A.5 the Applicant role does not fall within that classification.
Conclusion
It follows from the foregoing that the answer to the question posed for determination is as follows;
“What should the Applicant’s classification be under the Clerk’s – Private Sector Award 2020”.
The Answer is “Level 3 - Call centre customer contact officer grade 2.”
The matter is determined accordingly.
DEPUTY PRESIDENT
Appearances:
A Ricci, Applicant.
S Menon for the Respondent.
Hearing details:
2023.
Melbourne (by Microsoft Teams):
January 30.
[1]MA000002
[2] Exhibit A25, Witness Statement of Anusha Chilukuri, dated 7 December 2022
[3] Exhibit A27, Witness Statement of Sakshi Gupta, dated 7 December 2022
[4] Ibid at [5]-[7]
[5] Exhibit A27, First Witness Statement of Tanya Draper dated 8 December 2022, Exhibit A29, Second Witness Statement of Tanya Draper, dated 25 January 2023
[6] Exhibit A28 at [6]-[7]
[7] Exhibit A29 at [4]
[8] Ibid at [6]-[7]
[9] Ibid at [9]-[10]
[10] Ibid at [11]
[11] Ibid at [12]
[12] Ibid at [19]
[13] Ibid at [13]
[14] Ibid at [17]
[15] Ibid
[16] Ibid at [20]
[17] Ibid at [21]
[18] Exhibit A26, ‘5GFW – 5G Fixed Wireless Assurance’ Training Notes
[19] Exhibit A29 at [22]
[20] Ibid at [23]
[21] Ibid at [24]
[22] Exhibit A13, Proof of Graduation in Bachelor of Applied Science (Computing), dated 25 July 2022
[23] Exhibit A12, Resume for Alan Ricci
[24] Exhibit A11, Maximum Term Contract of Employment, dated 30 April 2022
[25] Exhibit A14, ‘Voice Team Performance Report Dec-22’
[26] Exhibit A3, 5GHI Voice May 2022 Metrics Table
[27] Ibid
[28] Exhibit A1, Chat logs regarding AHT
[29] Ibid
[30] Exhibit A2, Call Metrics for October 2022
[31] Exhibit A5, Chat log dated 22 September 2022
[32] Ibid
[33] Exhibit A16, November QA & Coaching emails
[34] Exhibit A17, Email chain re customer issue re sending emails, variously dated 26-28 July 2022
[35] Exhibit A18, Chat log re modem delivery issue, dated 16 December 2022
[36] Exhibit A19, Chat logs re modem return issue, dated 2 July 2022
[37] Exhibit A23, Analysis of network escalations, dated 20 October 2022
[38] Exhibit A6, Schedule entries
[39] Exhibit A5, Chat log re start times
[40] Exhibit A20, Chat log re break time compliance, dated 14-16 July 2022
[41] Exhibit A21, Email from Applicant dated 13 October 2022, titled “Re: Payroll errors”
[42] Exhibit A5, Chat log dated 22 September 2022 re new team members seeking support from Applicant.
[43] Exhibit A4, Chat logs variously dated re. support to new staff
[44] Exhibit A23, Chat log re package cost of returned modem.
[45] Exhibit A9, Chat logs variously dated regarding use of Applicant’s training notes.
[46] Exhibit A7, Emails dated 17 & 18 August 2022 titled “Shout out for a wonderful service given by Allen Ricci”.
[47] Exhibit A8, GBS Weekly Newsletter, dated 4 November 2022
[48] Exhibit R3, Witness Statement of Honeylet Knoll, dated 22 December 2022
[49] Exhibit R5, Witness Statement of Wayne Pham, dated 22 December 2022
[50] Exhibit R5, First Witness Statement of Jeeson Jeemon, dated 19 December 2022, Exhibit R6, Second Witness Statement of Jeeson Jeemon, dated 24 January 2023
[51] Exhibit R6 at [1]-[2]
[52] Ibid at [3]
[53] Ibid at [5]
[54] Ibid at [6], Attachment A, AHT for Applicant for September and October 2022
[55] Exhibit R6, at [7]
[56] Ibid at [8]
[57] Ibid at [9], Attachment B, Examples of INCs being raised.
[58] Exhibit R6, at [10], Attachment C, Example of customer call transfer
[59] Exhibit R6 at [12]-[14]
[60] Exhibit A3
[61] Exhibit A1
[62] Exhibit A2
[63] Exhibit A16
[64] Exhibit A20
[65] Exhibit A15
[66] Ibid
[67] Exhibit A24
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