CPSU, the Community and Public Sector Union v Telstra T/A Telstra Corporation Limited
[2022] FWC 229
•3 February 2022
| [2022] FWC 229 [Note: An appeal pursuant to s.604 (C2022/1334) was lodged against this decision.] |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
CPSU, the Community and Public Sector Union
v
Telstra T/A Telstra Corporation Limited
(C2021/4294)
| COMMISSIONER JOHNS | MELBOURNE, 3 February 2022 |
Classification dispute under the Telstra Enterprise Agreement 2019-2021
Introduction
Ben Daly is employed by Telstra Corporation Limited (Telstra/Respondent) as a Complex Customer Service Specialist (CCSS) at a Telstra contact/call centre in South Townsville, Queensland. Mr Daly is incredibly knowledgeable about and efficient at his job. He is customer centric and has great communication skills. If you ever have a need to call Telstra’s Business Tech Services or the Telstra Platinum service, hope that Mr Daly is working that day.
This decision is about the proper classification of Mr Daly under section 15 of the Telstra Enterprise Agreement 2019-2021 (Agreement). During the dispute about his classification Mr Daly has been represented by the Community and Public Sector Union (CPSU/Applicant).
Section 15 provides for two categories of “Customer Support” employees:
1. Customer Support (Technical) (Technical); and
2. Customer Support (Non-Technical) (Non-Technical).
The CPSU contends that, according to section 15 and due to the work performed by Mr Daly, he should be classified as Technical.
Telstra contends that Mr Daly is properly classified as Non-Technical.
Clause 25 of the Agreement contains a dispute settling procedure. It applies to “disputes about things covered in this Agreement, or about the National Employment Standards”.[1] After compliance with the steps set out in cl 25.4 – 25.6 of the Agreement, the Agreement confers jurisdiction on the Commission to resolve disputes by conciliation, and if conciliation is not successful, by arbitration at the request of either party.
On 23 July 2021, the CPSU, applied to the Fair Work Commission (Commission) to deal with a dispute under s.739 of the Fair Work Act 2009 (Cth) (FW Act).
On 30 July 2021 conciliation was attempted without success.
On 13 August 2021 the CPSU wrote to my Chambers submitting the dispute for arbitration.
It is common ground between the parties that the Commission has jurisdiction to arbitrate the dispute.
Consequently, the question to be answered by the Commission is:
“Should Mr Benjamin Daly, who performs work for Telstra as a Complex Customer Service Specialist, be classified as Customer Support (Technical) under the Telstra Enterprise Agreement 2019-2021?”
The Agreement
The Agreement was approved by the Commission, on 12 June 2020.[2] The Agreement passed its nominal expiry date on 30 September 2021.[3]
The Agreement covers Telstra and,
“all employees of Telstra, except for:
i) members of the Telstra Executive Team;
ii) employees in Band 1; and
iii) qualified legal practitioners working in the Telstra Legal Services Group.”[4]
The Agreement also covers the CPSU.[5]
Relevantly, section 15 provides that,
“… Customer Support (Non-Technical)
Jobs in this family are predominantly occupied in managing or undertaking
customer enquiries typically relating to billing, scheduling of network faults,
provisioning/order management, credit management, complaints management
or directly in support of the field workforce.
Customer Support (Technical)
Jobs in this family include managing or undertaking activities such as network
construction, maintenance, operation, performance monitoring and equipment
installation into the network or customer premises. Jobs also include fault
identification, isolation, testing and/or repair, basic de- sign within existing
infrastructure, product support and advice to other employees that is of a
technical nature.
Employees are expected to apply practical skills and knowledge to the
technical aspects of Telecommunication and Information Technology. The
work is focused, either directly or in coaching others, on applying practical
technical know-how and judgement within a specific discipline or area of
technical work to undertake job tasks.”
Substantive hearing
At the substantive hearing on 7 October 2021,
a)the CPSU was represented by Mr K Barlow, Legal Officer, and
b)Telstra was represented by Mr W Devereux, Employee Relations, assisted by Ms G Simmonds, Legal Counsel and Ms V Galloway, Legal Counsel, who are all employees of Telstra.
In advance of the substantive hearing the parties filed material. For completeness I set
out below the documents relied upon by the parties. I have had regard to all of this material in coming to this decision.
| Exhibit | Document title | Document date |
| 1 | Form F10 Application | 23 July 2021 |
| 2 | · Annexure A | |
| 3 | · Annexure B | |
| 4 | · Annexure C1 | 21 July 2021 |
| 5 | · Annexure C2 | 21 July 2021 |
| 6 | · Annexure D | 19 May 2021 |
| 7 | · Annexure E | |
| 8 | · Annexure F | 31 May 2021 |
| 9 | · Annexure G | 4 June 2021 |
| 10 | · Annexure H | 15 June 2021 |
| 11 | · Annexure I | 21 June 2021 |
| 12 | · Annexure J | |
| 13 | Applicant’s Submissions | 3 September 2021 |
| 14 | Witness Statement of Benjamin Daly | 3 September 2021 |
| 15 | · Annexure A | |
| 16 | · Annexure B | 3 October 2016 |
| 17 | · Annexure C | 16 December 2019 |
| 18 | · Annexure D1 | 21 July 2021 |
| 19 | · Annexure D2 | 21 July 2021 |
| 20 | · Annexure E | |
| 21 | · Annexure F | 12 April 2021 |
| | | |
| 23 | Respondent’s Submissions | 17 September 2021 |
| 24 | Witness Statement of Monica Schulz | 17 September 2021 |
| 25 | · MS-1 | |
| 26 | · MS-2 | |
| 27 | Witness Statement of Kris Lee Hampson | 17 September 2021 |
| 28 | Telstra Award 2015 | |
| 29 | Applicant’s Submissions in Reply | 24 September 2021 |
| 30 | Witness Statement of Benjamin Daly in Reply | 24 September 2021 |
| 31 | Parties Statement of Agreed Facts | 1 October 2021 |
| 32 | · Annexure AF1 | |
| 33 | · Annexure AF2 | |
| 34 | Sample of recorded customer experiences | |
| 35 | Source documents relating to Annexure G | |
| 36 | Natama scripts, Telstra’s database documents and Telstra’s extra bundle of documents to page 135 | |
| 37 | Power BI Inbound and Outbound Call Report and Power BI Idle Time Report | |
| 38 | Telstra’s Objections to CPSU’s Evidence | 6 October 2021 |
| 39 | CPSU’s Final Submissions | 29 October 2021 |
| 40 | Telstra’s Final Submissions | 12 November 2021 |
At the hearing Mr Daly, Ms Schulz and Mr Hampson were required for cross-examination.
At the conclusion of the hearing on 7 October 2021 the matter was programmed for the filing and service of final submissions as follows:
1.29 October 2021, the CPSU’s Final Submissions; and
2.12 November 2021, Telstra’s Final Submissions.
In coming to this decision, I have also had regard to the transcript of 7 October 2021 and the post hearing submissions.
Uncontested facts
The following matters were either agreed between the parties or not substantially contested. Consequently, I make the following findings of fact:
a) Telstra is a leading telecommunications and technology company in Australia offering a range of communications services and competing in all telecommunications markets.
b) Benjamin Daly is a current employee of Telstra and a member of the CPSU.
c) Mr Daly has a Bachelor of Information Technology from James Cook University, Queensland.
d) In May 2016, Mr Daly started work for Telstra as a labour hire employee of DFP Recruitment Services Pty Ltd.
e) In October 2016, Mr Daly was directly employed by Telstra as a “Premium Services” Customer Service Consultant (CSC), Band 4(i).
f) From the commencement of his employment in October 2016, the Telstra Enterprise Agreement 2015 - 2018 (Previous Agreement) applied to Mr Daly. The Previous Agreement was approved by the Fair Work Commission on 5 November 2018. The CPSU submitted a F18 statutory declaration in support of the application for the FWC to approve the proposed Telstra Agreement.
g) The Telstra Enterprise Agreement 2019-2021 applies to Mr Daly. The Agreement was approved by the Fair Work Commission on 12 June 2020. The decision approving the application of the Telstra EA provides at paragraph [1] that the CPSU supported approval of the Agreement.
h) In or around October 2019, Telstra consulted with employees and unions over proposed changes to Telstra Contact Centres.
i) In or around November 2019, Telstra introduced changes to Mr Daly’s Band 4(i) CSC role which resulted in the role being reclassified as a Complex Customer Service Specialist (CCSS), Band 3(ii) under the Telstra EA.
j) This change was part of a broader initiative aimed at simplifying and improving customer service by moving all frontline roles to a combined service and sales focus, with faults troubleshooting capacity.
k) Mr Daly works at a Telstra contact centre in Townsville, Queensland which provides customer support to consumer and small business customers. He is currently part of the Telstra Business Tech Services and Telstra Platinum teams in Townsville. There are two teams of 15 employees in Telstra Business Tech Services and 4 teams of 15 employees in Telstra Platinum in Townsville. In Perth, there are about 60 employees in Consumer Platinum. All of these workers are Complex Customer Service Specialists.
l) While traditionally the work of a CCSS was mostly performed on location at the contact centre, from around March 2020, many employees (including Mr Daly) have been working remotely due to the impact of COVID-19.
m) Mr Daly reports to Michael Woods, Team Leader. His “two-up” manager is Kris Hampson, Contact Centre Manager.
n) Telstra provides a range of customer support to residential and business customers including in relation to their internet and telecommunications services for accounts and billing, setup and technical support, products, plans and services. Included in this support are what has in the past been called “Premium” services. Customer support includes services for residential consumer customers who have purchased the “Telstra Platinum” package and small business customers who have purchased “Telstra Business Services” for small business. Each of these are 24/7 phone and online subscription support services, where customers can access support on internet-connected devices.
o) In the Townsville contact centre, employees take customer service enquiries of various kinds, including on Telstra Platinum and Business Services. Based on voice responses to prompts, customers are directed to the appropriate call queue, where their call can be answered by Customer Support staff who are assigned to queues based on their on the job training. Telstra can change the skill tags depending upon customer needs at any time. Mr Daly and other CCSS do not have any control over which type of calls they receive
p) Under the Agreement, employees may be either “job family” or “workstream” employees. Under section 15 of the Agreement there are five job families. Mr Daly is a “job family” employee. Roles performed by job family employees are mapped to one of these families to determine minimum rates of pay and related entitlements.
q) Each job is linked to a Job Framework and has a Success Profile. A Job Profile, which is set at a corporate level, describes what is commonly expected of people in that role, including the type of work performed (key responsibilities) and the skills needed to be successful (based on industry recognised skills). Hiring Managers will use the Job Framework to identify the appropriate role required and build a Success Profile. Neither the Job Framework nor Success Profile form part of the Agreement.
r) A Success Profile is developed in the immediate team or work area, and incorporates additional location and position-specific information.
s) Mr Daly performs work as a CCSS. He takes inbound calls and makes outbound calls to assist Telstra customers who have paid for the Premium service.
t) The types of calls Mr Daly receives as part of the Platinum Business Tech Services or Platinum services include him providing support to customers who call about:
1. sales, billing, order management and complaints;
2. NBN connections;
3. ADSL and land line faults;
4. cable faults;
5. basic email issues;
6. modem problems;
7. connecting to WiFi;
8. discontinued Telstra products;
9. setting up third party (in non-Telstra) devices, including phones, tablets, printers, faxes, scanners, modems and WiFi extenders, PCs/laptops and Bluetooth enabled devices;
10. set up and configuration of Virtual private network (VPN), port forwarding and remote desktop configuration;
11. security cameras systems and gaming consoles;
12. install or troubleshoot software such as Microsoft office suite and third party email clients (Thunderbird, em client, windows live mail, mac mail);
13. assist with installing and configuring anti-virus protection, PC optimisation (slow computer);
14. assist with setting up third party smart home devices (lights, sensors);
15. assist with business grade equipment such as WiFi enabled Eftpos machines.
u) On recruitment, all staff in the Townsville call centre participate in mandatory induction training. Then, depending on what customer calls Telstra require the staff to answer/support, Telstra will provision all required systems, and complete training and embedding for the employees to set them up for success to support customers.
v) There are three weeks of training for Customer Support staff who work on Telstra Platinum calls. This consists of mandatory induction training, training on the Telstra products supported for customers, education on how to use the Telstra systems, and how to use the scripts, workflows and knowledge database for walkthroughs. Mr Daly and other CCSS workers received four weeks’ training for staff upon moving into Telstra Business Services. This was because they needed to know the Telstra systems for business customers. The training focusses on the scripts to follow and the knowledge database to utilise for walkthroughs / guides when needed.
w) Mr Daly has also received additional training, as any staff Telstra move into a different traffic type, Telstra provide system access and run them through training/upskill to ensure they have everything they need to support customers’ call types.
x) Telstra also provides all CCSS staff with ongoing support including daily team meetings, 1 on 1 meetings and availability of their manager.
y) The training provided by Telstra does not result in the employee receiving a recognised qualification.
z) On first talking to the customer, CCSS employees will listen to the kind of problem being experienced, and then access available resources as provided by Telstra. CCSS workers access a dashboard homepage which includes links to the various tools and knowledge database items provided by Telstra. These differ slightly depending on whether the employee is dealing with a residential or business customer. For residential customers the platform is called Laureate, while for business customers it is simply called Telstra Business Services. Tools and resources that are available and commonly used include NATAMA, knowledge databases, NBN Portal, Broadband Assurance tool, MODINI, T&DM. The CCSS would use the resources relevant to the type of issue the customer is experiencing.
aa) Complex NBN or Telstra network issues that are unable to be resolved by CCSS staff are escalated to higher level 2 staff or faults are raised to NBN for them to resolve. These employees have higher level system access and would take full control of the escalation once received. They are accountable for network level investigation and diagnosing network level problems.
bb) Complex issues that are not network issues usually relate to the customer’s local network, i.e. their home or business. Calls are escalated in 3 ways. Non-Platinum Trained staff refer the customer to Telstra Platinum to further troubleshoot the customers’ issue. If the customer was unable to follow the troubleshooting or requested someone from Telstra attend a Platinum field technician can be sent out for a fee. This is a paid service call - $240. Where the issue is determined to require physical repair or internal component replacement the customer is referred to an external third party contractor to resolve the issue. If a CCSS could not resolve an issue which relates to a customer’s issue with their connection or devices or software, depending upon the nature of the issue, they would recommend local IT or software company IT help.
cc) Telstra engages the service of DFP Recruitment in hiring customer support staff including CCSS workers.
dd) Once the opportunity is available to offer permanent Telstra customer support roles, Telstra normally advertises internally to its DFP workers.
ee) A diverse range of people with varying work histories are hired to customer support roles.
ff) Telstra does not require recruits to CCSS roles to hold a relevant university degree.
Evidence – CPSU
Benjamin Daly, CPSU member and Telstra Employee, gave evidence about,
a) his
i.current position as a Complex Customer Service Specialist,
ii.employment history with Telstra including his recruitment and initial training,
iii.hours of work,
iv.current renumeration package,
b) the training he received from Telstra in 2018 and the high degree of on-the-job learning that he has undertaken,
c) his customer service work for Telstra Business Tech Services and Telstra Platinum, as well as other call queues as determined by Telstra on an ad hoc basis,
d) the escalation of customer support queries within the Telstra Tech Services team,
e) scenarios where he provides assistance to Telstra field technicians,
f) the types and frequency of customer calls that he receives, including calls about
i.billing, sales and ordering,
ii.the Platinum Service itself,
iii.technical assurance and platinum service technical calls,
g) the types of advice which he provides, including
i.educating customers on speed tests,
ii.fixing Wi-Fi problems,
iii.helping field agents,
h) the other parts of his role including the management of complex cases and the mentoring of other specialists,
i) his training and qualifications including a Bachelor of Information Technology.
In his second witness statement Benjamin Daly was responsive to the evidence advanced by Telstra. He gave evidence about,
a) Telstra’s involvement with DFP Recruitment,
b) the skills and knowledge he gained through Telstra’s training,
c) his management of escalated calls,
d) his use of knowledge, training and skills to resolve customer IT issues as opposed to following scripts and other knowledge resources,
e) his main role being to provide complex technical advice and assistance to Telstra Platinum customers,
f) his manual use of assurance tools (BAT, NEM-CMS),
g) the bypassing of scripting not causing customer service problems,
h) not being reminded by team leaders to use NATAMA and other workflows and their lack of necessity in resolving customer concerns,
i) the categorisation of callers in Mr Hampson’s evidence,
j) his use of search engines to research information and fixes which are not covered in Telstra’s knowledge databases and the lack of updates which the databases receive.
Evidence – Telstra
Monica Schulz, Human Resources Specialist at Telstra gave evidence about,
a) her role as a Human Resources Specialist,
b) her involvement with the Telstra Contact Centres,
c) Telstra’s Job Framework and the categorisation of Telstra employees,
d) the Complex Customer Support Specialist (CCSS) role,
e) the type of training offered to CCSS employees,
f) there being no requirement for Mr Daly to manage escalated calls,
g) Telstra’s preference for prescribed resolutions and scripting to be used when troubleshooting,
h) the reclassification and renaming of Mr Daly’s Band 4i Customer Service Consultant (CSC) role, to a Band 3ii CCSS and the fact that the degree to which roles were “technical” had no bearing on the decision,
i) the impact of the COVID-19 pandemic on Telstra’s implementation of the additional changes between CSC and CCSS roles.
Kris Hampson, Manager of the Telstra contact centre in South Townsville, Queensland (Townsville Centre) gave evidence about,
a) his role as the manager of the Townsville Centre and the “two-up” manager of Mr Daly,
b) the customer support provided by the Townsville Centre,
c) Telstra’s recruitment process of customer support employees using the agency DFP Recruitment Services,
d) the change of the Premium Services Technical Support Agent (PSTSA) to the CCSS role,
e) the impacts of COVID-19 on Telstra’s recruitment process and the lack of previous call centre experience or technical knowledge required of recently recruited CCSS employees.
f) the training provided to employees of the Townsville Centre,
g) the work of CCSS employees and their use of appropriate resources provided by Telstra,
h) the escalation of complex issues to other staff or external third-party contractors,
i) the fact that Telstra encourages staff to use scripting to promote consistent service and does not expect any CCS employee to bypass scripting,
j) the classification of Mr Daly’s inbound calls based on the que in which the call came in,
k) how employees with no technical background can reach the same outcomes described by Mr Daly through the use of Telstra’s assurance tools and knowledge databases,
l) the role of CCSS employees as the “eyes and hands” of Field Technicians,
m) the handling of issues when executives ask the call centre to call a specific customer,
n) what the team should do if a specific issue is not addressed in Telstra’s databases,
o) the training and qualification requirements for the CCSS role.
Principles relating to the interpretation of enterprise agreements
The CPSU and Telstra agreed that the relevant principles of interpretation are to be drawn from Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturers Workers Union (AMWU) v Berri Pty Limited (‘Berri’).[7]
I adopt the Berri principles. Consequently, it is necessary to,
a) begin the analysis with a consideration of the ordinary meaning of the words of the relevant clauses in the Agreement,
b) determine whether the Agreement has a plain meaning,
c) review the text of the Agreement as a whole,
d) not rewrite the Agreement to achieve what might be regarded as a fair or just outcome,
e) (in determining the objective intention of the parties) do so by reference to what a reasonable person would understand by the language used in the Agreement,
f) not adopt an overly technical approach to the interpretation of the Agreement, and
g) not contradict the plain language of the Agreement.
Principles relating to classification disputes
The CPSU and Telstra also agree that I should apply the relevant classification dispute principles to be derived from Logan v Otis Elevator Company Pty Ltd [1997] IRCA 200 and similar cases.
Last year, in Michael Watson v Safe Places Community Services Limited a Full Bench restated the principles:
[32] In Davies v Carnachan Family Trust Pty Ltd, Jones J observed:
12. The courts and industrial tribunals have developed principles to be applied to ascertain whether an employee falls within a particular classification described in an award or agreement. Where the employee performs mixed functions, the approach has been to examine the “major and substantial employment” of the employee or the “principal purpose” or “primary function” of the employee.
13. For example, in Logan v Otis Elevator Company Pty Ltd [1997] IRCA 200, Moore J referred to and applied decision of Sheldon J in Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18 where his Honour, applying the “major and substantial employment” test, relevantly observed:...it is not merely a matter of quantifying the time spent on the various elements of work performed by a complainant; the quality of the different types of work done is also a relevant consideration.
14. The task of the Court in examining the major, substantial or principal aspect of the work performed by the employee will include consideration of the amount of time spent performing particular tasks, but also the circumstances of the employment, and what the employee was employed to do. The question is one of fact, to be determined by reference to the duties actually attaching to the position, rather than its title: City of Wanneroo v Holmes [1989] FCA 553; (1989) 30 IR 362at 379; Joyce v Christofferson (1990) 26 FCR 261at 278.”
[33] Further, the principles of construction of enterprise agreements also operate when considering classification structures, including indicative tasks specified for various levels, for the purpose of determining the appropriate classification Level of an employee. Each level of a classification structure and the underpinning definitions must be read in the context of higher or lower levels having regard to the descriptions at higher and lower levels of similar tasks with ascending and descending degrees of complexity.
Accordingly, I must:
a) identify what the classification descriptors in section 15 of the Agreement mean;
b) identify what Mr Daly does (as is properly required of him as Complex Customer Service Consultant employed in Premium Services and Telstra’s Business Tech Services) by examining the “major and substantial employment” of Mr Daly/CCSSs or the “principal purpose” or “primary function” of Mr Daly/CCSSs; and, then,
c) determine where in the section 15 classification structure Mr Daly’s position falls.
Submissions – CPSU
On 3 September 2021 the CPSU submitted that,
Plain and ordinary meaning of the words
6.The CPSU’s primary submission is the plain and ordinary meaning of the words of Section 15 should apply. The Section 15 definitions should be construed without an overly technical approach and within the context and purpose of these clauses and the Agreement. The clauses are not ambiguous. But whether they are ambiguous or not, the Commission is permitted in its interpretational exercise under Berri to look at the context including the Agreement, other relevant clauses such as other definitions and also relevant caselaw.
7.The Section 15 definitions intend to exhaustively proscribe Telstra Job Family employees into discrete classifications. The CPSU says the task of the Commission here is to decide what the most appropriate classification definition covers Mr Daly’s employment as a Job Family employee. This will depend upon the ordinary meaning of the words used and the work he performs as the predominant part of his role.
8.The CPSU’s submission is that Mr Daly does not perform many of the duties of the Customer Service (Non Technical) definition, ie “undertaking customer enquiries typically relating to billing, scheduling of network faults, provisioning/order management, credit management, complaints management or directly in support of the field workforce”. Those duties that he does perform in this category he does so a minority of his time and are not central to his role.
9.The CPSU says the Customer Service (Technical) definition should be Mr Daly’s classification because it more completely and accurately reflects his primary duties than the Customer Service (Non Technical) definition. Technical here should be given its ordinary meaning, ie, as relating to a particular field such as sciences or engineering, and in an applied manner, rather than a theoretical way.
10.The definition of Customer Service (Technical) contains three discrete but linked sentences. The first sentence covers activities “such as network construction, maintenance, operation, performance monitoring and equipment installation into the network or customer premises.” Mr Daly does not perform this work.
11.He performs work covered by the second sentence beginning with the expression: “Jobs also include fault identification, isolation, testing and/or repair, basic de- sign within existing infrastructure, product support and advice to other employees that is of a technical nature.” The expression “Jobs also include” are words of inclusion and expansion and can be performed without the employee also needing to undertake the activities in the first sentence, ie network construction etc. Mr Daly performs work of fault identification, testing and/or repair, etc.
12.The CPSU says Mr Daly performs a range of job tasks which fall clearly within the Customer Service (Technical) definition and based upon Mr Daly’s evidence this is the purpose of his employment with Telstra or his ‘major and substantial’ role. He does his work in a technical fashion as outlined in the final paragraph of the definition: he applies “practical skills and knowledge to the technical aspects of Telecommunication and Information Technology”. Mr Daly has a relevant degree, training and on the job experience and applies his knowledge, skills and experience to solving customer IT problems. In this way Mr Daly applies his “practical technical know-how and judgement within a specific discipline or area of technical work” as outlined in the 3rd sentence of the definition.
13.Based upon the words of the definitions and the work Mr Daly performs the most appropriate classification for Mr Daly is Customer Service (Technical).
Guidance from relevant caselaw
14.The CPSU says the structure and words of the Section 15 definitions need to be considered in line with guidance with relevant caselaw about interpretation and application of classifications. The CPSU says the correct approach to determining an employees’ classification can be taken from Logan v Otis Elevator Company Pty Ltd [1997] IRCA 200. The inquiry is to determine the “major and substantial employment” looking not just at time spent but the quality of different types of work.
15.A recent discussion of classification was in RTBU v Sydney Trains [2021] FWC 2319 which described the inquiry into an employees’ classification in a similar fashion to Otis, as the ‘principle purpose’ test determined by examining “the duties performed and the circumstances under which they are performed” at [234-240]. See also the recent Australian Municipal, Administrative, Clerical and Services Union v Focus ACT [2021] FWC 2391 which is an example where these principles were employed to determine which classification stream employees fell into.
16.The CPSU is aware of two cases involving classification of call centre workers, CPSU v Choice HR PR955188 (21 January 2005) and more recently CEPU v Australia Post [2017] FWC 2413. Both those cases deal with the gradations within a classification stream, rather than between classifications as the Commission’s task is here. Choice HR discusses the indicative tasks of a call centre worker, saying at [44] that not every task needs to be performed by each employee.
17.It is the CPSU’s views that the caselaw in this area is relatively uncontroversial. Following on from the discussion in Otis, the Commission’s task here is to examine the work performed by Mr Daly and determine whether his ‘major and substantial employment’ or ‘principal purpose’ is to perform tasks which fall within the definition of Customer Service (Technical) in Section 15 of the Agreement.
Evidence
18.The CPSU replies upon the Statement of Mr Benjamin Daly of 3 September 2021. Mr Daly’s statement canvasses the work he performs for Telstra customers. Mr Daly takes calls as part of Telstra Platinum service and Business Tech services where customers have IT issues ranging from NBN, WiFi connection issues and a range of other IT issues with modems, devices, tablets, and software programs. Mr Daly’s job is to diagnose their technical issues and either provide advice on fixing and guide them through the process or fix it remotely himself. Mr Day provides advice of a technical nature to customers about their IT problems, using Telstra programs and occasional guidance from Telstra scripts but also using his own initiative, knowledge, research, expertise and troubleshooting skills.
19.Mr Daly’s statement also contained Annexure “G” which was a log of the calls he received between January and July 2021 categorising them into non-technical calls, Technical Assurance calls and more complex Platinum Service troubleshooting calls. That evidence showed Mr Daly performed non-technical calls 18% of the time, Technical Assurance calls 61% of the time and Platinum Service technical calls 21% of the time. Accordingly, at least 82% of the calls managed by Mr Daly relate to customer IT issues or problems which are technical in nature.
20.The CPSU says this evidence demonstrates Mr Daly performs work fault identification, isolation, testing and/or repair, basic de- sign within existing infrastructure, product support the predominant time and are the main purpose of his role. The CPSU says Mr Daly performs this role similar to other Telstra employees engaged as Complex Customer Service Specialists.
21.With reference to Otis and more recently RTBU and Sydney Trains, the CPSU says both quantity of Mr Daly’s time is taken performing work within the Customer Service (Technical) definition but so is the quality of these jobs. Qualitatively refers to the nature of the work and the circumstances in which it is performed. Almost all of Mr Daly’s work is taking calls, but what Telstra require Mr Daly’s role as a Complex Customer Service Specialist is to use his skills, knowledge and experience to diagnose a customer’s issue, troubleshoot and fix the problem. The quantity of Mr Daly’s time taking complex calls and the technical quality of the advice he is required to provide shows the dominate purpose of his employment with Telstra falls within the definition of Customer Service (Technical).
Conclusion
22.The CPSU says the question must be answered in the affirmative. The evidence provided by Mr Daly details the work he performs for Telstra as his major and substantial employment. A 6 month snap-shot of his calls shows his calls are overwhelming technical in nature and this is where he spends 82% of his time.
23.Mr Daly performs the substantial part of his role as a Complex Customer Service Specialist for Telstra providing customer service advice of a technical nature. This falls squarely within the ordinary words and expressions for these workers tasks contained within the definition in Section 15 of the Agreement Customer Service (Technical).”[8]
Submissions – Telstra
On 20 September 2021, Telstra submitted that,
8. In applying those principles to the present circumstances, two matters are of importance at the outset:
(a)First, the Telstra EA’s definitions of both “Customer Support” job families define the types of “jobs” that they cover. That is, the focus of the analysis is of the nature of the job that the employee is employed to do - not the particular employee who fills it. While the CPSU’s case is centred around the work and characteristics of Benjamin Daly, the correct approach is to assess the work of, and requirements to fill the role of, a CCSS employee. Mr Daly may have particular skills, qualifications and abilities that may be beneficial but Telstra does not require for him to discharge the duties of the position in which he is employed. As it has been previously expressed:
I have no doubt that the applicant possessed the necessary skills and experience to provide much of the technical input required but I find that the duties of his principal task (that is, preparation of applications for funding and general corporate planning and business development) could have been adequately discharged without the possession of the qualifications and experience referred to in the definition [in the award classification at issue] of "professional information technology duties"
(b) Second, the Telstra EA is not “interpreted in a vacuum divorced from industrial realities”: City of Wanneroo v Holmes (1989) 30 IR 362 at 378; Skene supra. It must be interpreted in a way that is workable in the context of the Telstra contact centre workplace. It is important in this regard that as a telecommunications and internet services provider, much of what Telstra does may be “technical” according to some ordinary meanings or layperson understanding of the word. That does not mean that any Customer Support work touching on “technical’ matters is automatically a “Customer Support (Technical)” job. So much is clear from the definition of the “Customer Support (Non-Technical)” job family, which expressly includes scheduling network faults and assisting field employees. The latter in particular will require employees to do use “technical” tools and perform tests, but does not require any specialised knowledge of information technology.
The Telstra EA
9. The CPSU characterises the definition of the “Customer Support (Technical)” job family as containing “three discrete but linked sentences”: US [10]. Insofar as “discrete” suggests that any job that can be described as falling within any of the three sentences is covered by the paragraph, this characterisation ought not be accepted.
10. The better view is that the definition consists of two paragraphs. The first contains two sentences which set out indicative tasks “such as” which jobs in the job family “include” – that is, they are indicative tasks or functions. The first paragraph thus provides some practical guidance, but it is the single-sentence second paragraph that is critical. It identifies the kind of skills and knowledge that employees in the job family are expected to apply, and refers to work generally as “focused... on applying practical technical know-how and judgment within a specific discipline or area of technical work to undertake job tasks.”
11. The CPSU contends that Mr Daly falls within the definition of the “Customer Service (Technical)” job family primarily by reference to the second sentence of the first paragraph, but refers briefly to parts of the third as well. In Telstra’s submission, that approach is misconceived. The correct approach is that Mr Daly’s role falls within the job family only if it requires employees in the role to:
... apply practical skills and knowledge to the technical aspects of Telecommunication and Information Technology. The work is focused, either directly or in coaching others, on applying practical technical know-how and judgment within a specific discipline or area of technical work to undertake job tasks.
12. Properly interpreted, what separates the Technical and Non-Technical Customer Support job families is whether the work requires the application of technical know-how and judgment within a specific discipline or area of technical work.
The CSSS role
13. In light of the above matters, Telstra submits that the CCSS role is not a “technical” one. In this respect, it relies on the statements of Kris Lee Hampson and Monica Schulz, each dated 17 September 2021. The evidence establishes that:
(c)The CCSS role does not require any prior qualifications, knowledge or experience in information technology or telecommunications. There are incumbents in the role who perform it, successfully, without any such knowledge or skill.
(d)The focus of the CCSS role is on providing consistent, high-quality customer service.
(e)The training provided to CCSS employees is centred on knowledge of call handling, Telstra product knowledge, and what tool to deploy in a given circumstance.
(f)For issues with key services provided by Telstra, such as internet and phone connections, CCSS employees are provided with tools which step them exhaustively through the steps of ascertaining what the issue may be, and incorporates the testing programs used in this process. Where this process identifies network level faults, this is escalated to appropriate technical staff, such as “Level 2” employees who possess the necessary technical knowledge and skills to deal with these issues.
(g)For other issues that Telstra fields as part of its Platinum and Business Services offerings, Telstra provides an extensive knowledge database which employees can search to identify potential issues and suggest means of resolution.
14. With one caveat, Telstra accepts that the ordinary definition of “technical” paraphrased at US [9] is largely apt in the context of the Telstra EA. Generally, something which is “technical” relates to a “science or the like” or is “connected with the mechanical or industrial arts and the applied sciences”: Macquarie Dictionary, 5th ed. In the context of an enterprise with information technology and telecommunications at its core, it is appropriate to read this as relating to a particular field such as the sciences or engineering. It is moreover appropriate in the legislative context in which the Telstra EA was made (see e.g. Berri at [114], principle 1 (iii), applying inter alia Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10, 222 CLR 241), which includes the need for the agreement to pass the “better off overall test” against an award safety net. For non-retail Telstra employees, including in contact centres, that safety net is the Telstra Award 2015. In the context of this award, there are two streams of classifications referred to as “technical”, which respectively require trade and professional knowledge, experience and/or and qualifications, or providing assistance to persons who have the same: see clauses A.4 and A.5.
15. The caveat to the above is that caution is required where the Union says that the word “technical” has the connotation of “in an applied manner, rather than a theoretical way”. Plainly a “Customer Service (Technical)” employee applies their knowledge and skills; the definition of the job family says as much. That knowledge or skill must however be sourced from “technical know-how and judgment within a specific discipline”.
16. CCSS employees are not required to possess or apply technical know-how or judgment in this sense. Their work is strictly guided as regards checking for network-level issues; for those who take Platinum and Business Services calls, their other work consists in searching for and applying guides, how-to documents, “cheat sheets” etc. created and provided by Telstra in a knowledge database. Without wishing to water down the importance of this work, the CCSS role as designed by Telstra is not concerned with applying knowledge of IT, networking, engineering, telecommunications, or any other recognised discipline to diagnose and fix issues. Where that knowledge is required, the call will be escalated. Through their training, CCSS employees know what resources to access, how to search them, and how to step customers through relevant resources. Their core skill is in customer service, not any “technical” field.
17.From the evidence, it appears that Mr Daly holds knowledge, skills and experience in excess of the requirements for the role that he holds, and operates differently to the way that Telstra expects and requires of CCSS employees. He may do his work in a different way to others, and deal with issues himself that others would escalate. That might demonstrate that he is suitable for a different or more senior role. It does not however demonstrate that the job he was employed to do has been misclassified.
Relevance of reclassification
18. For completeness, though it is not addressed in the US, the CPSU has made comment at various points in this proceeding about the re-banding of Mr Daly’s position from Band 4i to Band 3ii. It has in the past been suggested both that Mr Daly’s role should always have been graded at Band 3ii, and that this was done in response to the “technical” nature of the job.
19. To the extent these are pressed, neither of these matters carries any weight or relevance. In this respect:
(h)Notwithstanding Mr Daly’s evidence, the role he did has changed, and it is intended it will change further. That the CCSS role is less obviously different to its predecessor than was intended is a result of the COVID-19 pandemic and Telstra’s changed priorities in the months after it began implementing the changes.
(i)Both “Customer Support (Technical)” and “Customer Support (Non-Technical)” employees can be classified at either Band 4i or Band 3ii.
(j)The Telstra EA does not define the difference between a Band 4i and Band 3ii job family employee. As set out in Section 15, a job’s band in this context is classified in accordance with Telstra policy, based on the Hay system.
20. It is respectfully submitted that the application ought be dismissed.”[9]
Reply submissions – CPSU
In reply, on 24 September 2021, the CPSU submitted that,
1.“It is the CPSU’s case that Mr Daly performs work he is required to for Telstra by taking calls and providing a customer service as a Complex Customer Service Specialist that fulfils the definition of Customer Service (Technical) in the Telstra Enterprise Agreement 2019-2021 (“The Agreement”) and this is his primary role for Telstra.
2.The CPSU says this conclusion is consistent with the approach to interpreting Enterprise Agreements and classification disputes, the principles of which are not in dispute between the parties. However, the CPSU does not believe the Telstra Award 2015 provides much guidance for the FWC here. The CPSU disagrees with the respondent’s reliance at [8] upon Brand v APIR Systems Ltd [2003] AIRC 684. Unlike the employee in that case, here Mr Daly’s knowledge, skills and training are directly related to the role he is required to perform for Telstra and which he uses daily in discharging his role.
3.Telstra are placing to narrow an interpretation upon the meaning of ‘technical’ that is not in line with the words used in the Agreement definition or the common sense meaning. The definition of Customer Service (Technical) is not two separate parts with the second paragraph limiting and restricting the first. The respondent seems to be saying that Mr Daly and other Complex Customer Support Specialists do perform jobs such as fault identification, isolation, testing, repair, etc which fall within the definition of Customer Service (Technical) but they do not perform this work in a sufficiently ‘technical’ way. This is incorrect.
4.The role of the Commission is to look at what Mr Daly’s primary role is. Mr Daly and workers like him take calls about technical faults or issues with customers Information Technology. It is their role to diagnose and resolve the issue, using not just Telstra workflows and scripts but also applying their technical training, knowledge and experience in providing excellent customer service. This is fundamental to the role they are required to perform for Telstra. The level to which an employee needs to follow guides as opposed to more autonomously using know how and expertise appears more an issue of what level the employee is performing their work at than it is of whether they are engaged to perform work of a technical nature.
5.The work Mr Daly is required to perform as his primary role meets the definition of Customer Service (Technical) being jobs that include fault identification, testing and/or repair, etc and he performs this work applying “practical technical know-how and judgement within a specific discipline or area of technical work”. In contrast to the jobs of billing, credit management, etc which Mr Daly either does not perform or performs in a limited fashion and fall within Customer Service (Non-Technical).
6.Regarding the respondent’s position a Complex Customer Service Specialist like Mr Daly does not perform work of a technical nature, the CPSU says:
a.The training that Telstra provides to a person in Mr Daly’s role includes an understanding of Telstra technical processes, products and tools, and trains employees to apply that technical knowledge to common examples of customer technical issues. This training, together with whatever qualifications or prior experience a person has and their on-the job experience allows them to apply their knowledge in a practical way to provide customer service to diagnose and resolve specific IT problems with NBN, WiFi, Telstra and non-Telstra devices and software. The training is clearly technical in nature and is tailored to prepare employees such as Mr Daly to perform what is clearly a technical role, within the common sense meaning of those words and the meaning in the Agreement.
b.The use of tools like NATAMA to diagnose and resolve customer issues which contain scripts and tests to perform, only apply generally to what is classed as Assurance work, ie issues with NBN, WiFi. But this work, even if guided by scripts, is still resolving the customers technical issues with their IT and requires an employee to use their skills, training and judgment to assist and resolve the customers’ issue.
c.More complex calls, particularly around non-Telstra products, which Mr Daly says at paragraph [35] of his 3 September 2021 statement can be more challenging calls are according to his Annexure “G” are approximately 21% of his time. These calls are where he uses his own skills and knowledge to a much greater degree and where there is limited guidance from knowledge database information, ie Laurate/confluence. For these calls Mr Daly, like his colleagues, uses his own knowledge and research to diagnose the issue, troubleshoot and provide a solution.
d.Mr Hampson’s evidence is that all Complex Customer Service Specialists receive the same calls and would follow the same processes to assist the customer. Mr Daly has no control over the calls he takes and he says he performs his role the same way as his colleagues. Telstra requires workers like Mr Daly to provide a quality customer service and ensure the customers issue is resolved or escalated.
e.Telstra have provided no evidence to support its position that Mr Daly performs his work above that required by the role. Or evidence to show that other Complex Customer Service Specialists perform their work differently to Mr Daly and don’t use their training, skills, know-how and judgment to assist customers. Telstra has provided no evidence that the exercise of technical skills and know-how by these workers is not a requirement of the role.
f.It is Mr Daly’s evidence that he performs work similar to his colleagues. That he has more experience than some other colleagues or an IT degree means he may perform aspects of his troubleshooting role more quickly or more proficiently. But his role requires him to use all his skills, training, knowledge etc to assist the customer’s technical problem and this is exactly what is required of other Complex Customer Service Specialists.
g.It is Mr Daly’s evidence that Telstra expect and require him to accomplish his role in this fashion and this is the nature of his role as a Complex Customer Service Specialist. He says Telstra requires him to ensure he fixes the customers problem and provides the best customer service he can.
7.It is on this basis the CPSU says the respondent’s interpretation of the Agreement and evidence in support of their position can’t be preferred by the Commission in answering the question for Arbitration. The CPSU says when the Agreement definition is read in a beneficial and common-sense fashion and with reference to the jobs Mr Daly is required to perform, his role as a Complex Customer Service Specialist falls within the definition of Customer Service (Technical) of the Agreement. The answer to the question for Arbitration should be Yes.”[10]
Post-hearing submissions – CPSU
On 29 October 2021, the CPSU further submitted that,
1.“The evidence from the hearing of 6 October 2021 showed the work Mr Daly performs for Telstra as a Complex Customer Service Specialist falls clearly within the definition of Customer Service (Technical), as opposed to the definition of Customer Service (Non-Technical) in Section 15 of the Agreement. Mr Daly should thereby be classified under the Agreement as Customer Service (Technical) and the answer to the question for arbitration should be “yes”.
2.In answering the question for arbitration, the Commission will need to construe the disputed clauses in accordance with authorities like Berri and make findings about the quality and time the duties a Complex Customer Service Specialist like Mr Daly performs guided by Logan v Otis Elevators. Whether Mr Daly should be classified as a Customer Service (Technical) is a mixed question of fact and law.
3.The respondent’s case that Mr Daly appears two-fold. Firstly, that Mr Daly is only required to follow scripts and Telstra knowledge resources and isn’t required to use his knowledge or expertise as part of his role and therefore the role is not ‘technical’ in the sense required by the definition of Customer Service (Technical). Secondly, where he does use experience and skills to troubleshoot issues, particularly those related to non-Telstra products where there is little to no knowledge guidance from Telstra, he either should not be doing this (according to Mr Hampson in examination). Or it is above and beyond what is required for his role. Neither position is borne out by the evidence.
Findings by the Commission – corroborated evidence
4.The issues which are established by the evidence from examination (or are in the parties Agreed Facts) and should not be in dispute relevant to the findings the Commission can make include:
5.Telstra website: The Telstra website advertises Telstra products Platinum and Telstra Business Tech Services as 24/7 IT support (Annexure D1 and D2 to Mr Daly’s 3 September 2021 statement (Ex14)). Ms Schultz agreed at [PN818] that those sites conveyed to the customer they would be speaking with a technician or technical expert. Mr Hampson agreed to a more limited proposition, somewhat reluctantly agreeing the website detail for Telstra Platinum did not contain a restriction on the service offering to only IT and gadget issues Telstra has a script on at [PN974].
6.Complex Customer Service Specialist Success Profile (MS-1 to Ms Schultz's 17 September 2021 statement): In cross-examination Ms Schultz did not accept that Complex Customer Service Specialists solve problems using a combination of experience and past evidence was an inherent part of the role [PN998]. But the CPSU says this response should not be accepted as it conflicts with Ms Schultz earlier evidence where she agreed [PN792] (with reference to the Success Profile) the role involved troubleshooting and problem solving and experience, that operators use their skills, training and experience [PN795] and not just following scripts, workflows or knowledge resources [PN796]. The CPSU says such features of the role must logically be considered part of its ‘inherent requirements’. Mr Hampson when asked about the Success Profile also agreed that their role involved using their experience and knowledge to troubleshoot and solve customer problems [PN1001].
7.Training: The Agreed Statement of Facts at [19]-[22] details the type of training Complex Customer Service Specialists received on commencement and through their careers. For example, Mr Hampson when asked about Mr Daly’s WhatsApp call during the virtual inspection said the call was an example of not just his skills and experience by Telstra training also [PN963].
8.Use of scripts/knowledge resources: Evidence from the virtual inspection only showed 1 worker using NATAMA work flow to test and deal with an issue about internet drop-outs (the WFH call). This is corroborated by Ms Schultz who agreed at [PN804] following scripts was not mandatory. Mr Hampson at [PN1022] he agreed following scripts was not mandatory and at [PN1024] he agreed they used their own experience and training. He also agreed at [PN1039] and [PN1040] that some agents follow scripts and knowledge resources and it was never the intention for them to mechanically follow the scripts
9.Use of experience and knowledge: Mr Schulz said at [PN806] she believed Complex Customer Service Specialists would use their skills and experience. At [PN1045] Mr Hampson agreed saying:
The Commissioner: So, Mr Hampton, just correct me if I'm wrong. Could I summarise it like this. Employees come in at an entry level. They don't require any recognised information technology qualifications. To support them, particularly in the early phases of their work there are these scripts which they'd be well advised to follow. But over time with their skills and experience from on the job and the like, they're more likely than not to exercise a bit more autonomy in how they respond to customer queries? That is correct, Commissioner.
10.Types of calls taken: The Agreed Statement of Facts at [18] contains a list of call types Mr Daly takes as a Complex Customer Service Specialist. Mr Hampson agreed at [PN1040] that other Complex Customer Service Specialists would perform their work similarly to Mr Daly.
11.It was not contested that Mr Daly spent some of his time taking what he considered ‘non-technical’ calls, ie related to ‘billing, scheduling of network faults’ etc which fell within the definition of ‘Customer Service (Non-Technical) which Ben estimated as 18% of his calls in Annexure “G” to Mr Daly’s 3 September 2021 statement (Ex14) (Annexure “G”).
12.Customer satisfaction: Mr Daly’s statement of 24 September 2021 (Ex15) at [13] says it is emphasised that he should fix customers issues. Mr Hampson accepted the focus of the role was resolving the customers issue to the extent possible [PN1084]. And that Mr Daly and other Telstra workers were encouraged to get good surveys [PN1059], an indicator of customer satisfaction [PN1060].
13.Conclusions available to be drawn: Mr Daly and other Complex Customer Service Specialists are providing a customer service marketed by Telstra as technical assistance for all IT issues including non-Telstra ones. It is expected they will troubleshoot and problem solve outlined in the Successful Profile and as demonstrated in several of call examples in the virtual inspection. Whether they follow scripts closely or are generally guided they use the tools made available by Telstra but also use their accrued knowledge and experience. The focus of the Complex Customer Service Specialist is to fix the customers issue and their performance is rated on this through average handling time and customer satisfaction surveys.
Findings by the Commission – Major issues in dispute
14.The major factual issues in dispute appear to be how Mr Daly performs his role and whether it is sufficiently ‘technical’ according to the Agreement definition. The Commission make findings regarding these issues from the follow evidence:
The evidence from the virtual inspection
15.The Commission saw and/or heard 5 call recordings from Mr Daly and 4 call recordings from other Complex Customer Service Specialists selected by Telstra. Mr Daly’s calls were selected from those made available by Telstra for 3 days for Mr Daly and his calls only came from 1 day [PN105]. The CPSU understood there were similar time restrictions for calls Telstra was able to identify and put forward for the inspection. Regarding the calls available for the inspection, Mr Daly in examination at [PN447] said that these were examples of calls he would commonly take, but were fairly quick simple calls. The CPSU refers to Mr Daly’s statement of 3 September 2021 (Exhibit 14) from [32] where Mr Daly outlines some of the more complex calls he takes.
16.Three of Mr Daly’s calls related generally to connection issues, land line (the Medical Assistance call) (from [PN159]), WiFi or Modem (from [PN196] and the (un-listened to call)) and in these cases there was a simple solution to the issues. Of the Telstra calls, 2 related to WiFi or connection issues, one of which saw a modem reboot (the Netflix call) (from [PN222]). Another call (the WFH call) (from [PN388]) saw internet drop-outs, the customer unable to restart the modem, NATAMA script partially used and resulted identifying it was an old modem, a new modem ordered and any potential NBN issue put on a 24 hour watch.
17.These calls saw the Complex Customer Service Specialist use their skills, training and experience and utilisation of various Telstra systems and tools, logging remotely into customers computers, Telstra guides like NATAMA, etc to identify the issue, troubleshoot, run tests related to both the broadband connection and the modem connection, diagnose and fix the issue.
18.Mr Daly categorised these types of calls as Technical Assurance [PN455] calls making up, according to his Annexure “G” 41% of his call time. These calls fall into the definition of Customer Service (Technical) because they involved ‘fault identification, isolation, testing and/or repair’. These calls saw a variety of Telstra systems used to achieve this, but when NATAMA scripts and tests were utilised, they were not closely followed on the WFH call.
19.Two of Mr Daly’s calls related to third party software, the Yahoo call (from [PN129]) and WhatsApp call (from [PN297]) and saw Mr Daly remote log into the customers systems. One of Telstra’s calls related to PDF files (the PDF call) (from [PN266]). While Mr Hampson identified a knowledge resource was available for the pdf issue, the worker did not utilise it [PN 279]. Calls related to Yahoo, WhatsApp and Pdf’s Mr Daly would class as Technical Platinum (PN455) and according to Annexure “G” making up 21% of his calls. The CPSU says these calls saw more troubleshooting and autonomous direction and research. Mr Daly’s two calls required him to troubleshoot and do research, but he didn’t find too difficult, saying they were nice easy calls (PN447).
20.The CPSU says these calls fall into the definition of ‘product support’ in the definition of Customer Support (Technical) being the provision of 24/7 IT assistance in particular to non-Telstra related products and services as detailed in the Telstra Platinum and Telstra Tech Services website information – Annexure D1 and D2 to Mr Daly’s 3 September 2021 statement (Ex13). The final call Telstra provided required the worker to identify the data usage (the Data Usage call) at [PN256] and could be seen as related to billing and/or product service as part of Platinum [PN455].
21.Conclusions available to be drawn: The evidence shown in the inspection was that Mr Daly and his Complex Customer Service Specialist colleagues performed similar work in similar ways and utilised their skills, experience, training and also Telstra systems and tools. They dealt with calls related to connection and modem issues using Telstra systems and tools, but not necessarily strictly following scripts. Advice about third party products occurred without reference to Telstra knowledge guidance but through their own research and knowledge. This corroborates how Mr Daly described his work in his 3 September 2021 statement (Ex14) and 24 September 2021 statement (Ex15) and his oral evidence. These calls were a limited sample, it is indicative of the work performed, but were not in the most complex category.
Provisions of advice about non-Telstra/third party devices and programs:
The evidence of Mr Hampson regarding third party devices
22.In examination at [PN922] Mr Hampson said with reference to Mr Daly’s WhatsApp call he should have referred to customer to WhatsApp rather than handled it himself. In cross examination he said he did not expect Complex Customer Service Specialists to support the customer but just check their connection was working [PN970] because there was no Telstra guidance on the issue. At [PN977] Mr Hampson said Mr Daly should have referred the call elsewhere because there was no guide and he shouldn’t have researched the answer and fixed the issue. Mr Hampson however agreed there was no evidence or guide he was aware of saying instructing Complex Customer Service Specialists to refer these calls elsewhere [PN979] – [PN984]/
23.Mr Hampson’s answers here that he believed support for third party devices was not an expected part of the role should not be accepted. He could not identify or put in evidence such a guide to employees not to deal with such calls [PN983]. Also Mr Daly handled the WhatsApp call similarly to his colleague who dealt with the PDF call where there was such Telstra guidance available. Further Mr Hampson’s evidence it is inconsistent with his 17 September 2021 statement (Ex27) at [22](a) where he says some staff are familiar with materials and don’t need to consult them, [24] where he said where there are no scripts there are knowledge materials and [30] where he said an issue not addressed in a knowledge database could see content updated. The Agreed Statement of Facts at [18] also contained a list of the types of calls Mr Daly receives to provide support to customers which included setting up third party devices or troubleshooting software.
24.The statement about the WhatsApp call is also potentially inconsistent with Mr Hampson accepting the focus of the role was resolving the customers issue to the extent possible [PN1084].
25.In re-examination Mr Hampson was asked questions about over servicing a customer and going outside the support boundaries or inconsistent service at [PN1102]. He said:
Yes, in some scenario where I fix something from I guess my knowledge outside of Telstra, so this is nothing we've ever trained you in, you're just very switched on and have the right degrees and really do get it. You fix that, the customer leaves really happy. Let's just say something went wrong and they ring back about the exact same thing and get [Telstra customer], with no previous technical knowledge or anything bar what I've been trained at Telstra, I would - I would cop the grunt of that from the customer.
The evidence of Mr Daly regarding third party devices
26.The CPSU say the evidence of Mr Daly should be preferred on how he is required to assist customers with non-Telstra issues. His evidence was that he “regularly gets ones like those” which required him to do research [PN447] because there was no available Telstra knowledge guidance or it is generic or out of date [PN474], for example WiFi extenders [PN509] and commonly researches himself [PN512]. He said in cross examination the guides available for these products were not detailed at [PN509]. Troubleshooting and problem solving are also outlined in the Success Profile which both Ms Schulz and Mr Hampson agreed was part of the role of Complex Customer Service Specialist.
27.Mr Daly said in re-examination the WhatsApp call was an example of the troubleshooting part of his role. [PN695] and part of the Platinum service Telstra provides: “for platinum issues we generally log in and do all the work for them” at [PN470]. In response to questions about following instructions and guides at [PN511], Mr Daly agreed he would find and follow a guide for a successful resolution, particularly for Telstra products, but would use his experience and google for non-Telstra products [PN512] [PN513].
28.Resolving issues with non-Telstra products is an important part of Telstra’s product offering. In cross examination Mr Daly said of the WhatsApp call or PDF call “they want that to be fixed and they are paying Telstra for a product call to Telstra Platinum and they're wanting product support for like product to get their technical support”. Describing the Yahoo call (a ‘basic technical call’ [PN154]), Mr Daly said [PN134]:
Because the customer's paying for Telstra Platinum we provide technical support for a lot of issues. So this is quite a common call. So if they use Yahoo - I had a customer who had a problem with his Gmail yesterday on my shift, so as part of Telstra Platinum we provide support for these types of issues. So non Platinum customers don't get this level of support. So if you called up with Yahoo the agent wouldn't be able to assist you. They may refer you to Platinum for the support, but this support only comes you having Telstra Platinum.
29.Mr Daly also detailed an example of the Platinum service offer at [PN546] saying he would sign up a person to Platinum if they had a printer issue and work to fix it.
30.According to Annexure “G” (Ex14) calls like this take up 21% of his call time.
31.The CPSU says the focus on customer experience and consistency is important and part of the role of a Complex Customer Service Specialist like Mr Daly. However, Mr Hampson’s response that Complex Customer Service Specialists going outside Telstra guidance needs viewed in the context of other evidence.
·At [PN1084] Mr Hampson accepted the focus was upon resolving the customers issue to the extent possible.
·Mr Daly detailed at [PN458] that he is expected and is rated upon surveys from customers, upon whether the issue was resolved and how he speaks to customers.
·At [PN210] Mr Daly details the systems he uses to record notes about what the issue and solutions to the customer issues were, so if that customer calls back, another Complex Customer Support Specialist can see what has been done.
·Mr Hampson accepted at [PN1040] that other Complex Customer Service Specialists would perform their work similarly to Mr Daly. So inferentially there is no basis to assume other workers would not be similarly adept at researching and problem solving and using their initiative. This was seen during the virtual inspection.
·Mr Hampson agreed getting a good survey is a measure of customer satisfaction [PN1060] and this was expected of all such workers [PN1059]
·At [PN1045] Mr Hampson agreed Complex Customer Service Specialists would use their skills and experience.
·Mr Hampson when asked about the success profile also agreed that their role involved using their experience and knowledge to troubleshoot and solve customer problems [PN1001].
32.Conclusion: Mr Hampson’s assertions about Complex Customer Service Specialists not going outside Telstra guidance should not be accepted. The evidence outlined above is that workers like Mr Daly can and do go outside Telstra scripts or knowledge guidance and use their own knowledge and research skills to fix the customer’s issue. They exercise their judgment. The evidence shows this is an expected part of their role and an important part of the Platinum product Telstra promotes.
Whether the work performed is ‘technical’ in nature:
The evidence of Ms Schulz:
33.Ms Schulz in examination by the Commissioner agreed the duties performed by Mr Daly did not fall predominantly in calls relating to billing or scheduling of network faults [PN808].
The evidence of Mr Hampson
34.Mr Hampson in examination described the work of Complex Customer Service Specialists as falling within the definition of ‘customer enquiries’ and ‘scheduling network faults’ in the definition of Customer Service (Non-Technical). He said at [PN182]:
We're a technology company and their internet's not working, do I require technical capability to solve? I don't believe so. We teach and train and provide all system access and we provided a guided workplace.
35.At [PN870] Mr Hampson described the virtual inspection calls thus:
so summary of the calls today, customers with inquiries around their services, and again we are a technology company so there is technology involved, but these are, in my opinion, general customer inquiries where we lead customers to solutions.
The evidence of Mr Daly
36.Mr Daly described in the virtual inspection calls relating to the Medical assistance call at [PN191] as:
“fault notification and testing. The customer had faults, I identified the faults, I applied a fix to it and then I tested the fix.”
He said of scheduling network faults as “If restart hadn't resolved I would have then booked a technician to go out and provide an entrance service” [PN193].
37.In cross examination Mr Daly was asked questions that helping customers install modems or WiFi extenders doesn't need technical know how [PN486] and most people can set it up themselves [PN487]. Mr Daly said:
"If the customer - like I wouldn't need to pay for Platinum because I'm pretty tech savvy, I know how to Google and use YouTube and learn how to do those things. People who are a bit industrious, like that, wouldn't be paying for our service. The customers paying for the service at Telstra Platinum Business Tech Services want that tech support because it's just outside of their scope or they call themselves, 'I'm not tech savvy', so they want that tech support."
38.Mr Daly also agreed finding out how to do WhatsApp using google wasn't particularly 'technical' but was part of the support he gives customers [PN527]. And advice about WiFi extenders could be obtained from JBHIFI [PN682] or could be installed by a lay person if they could ‘follow instructions and they're reasonably tech savvy’ at [PN488].
39.In response to questions from the Commissioner [PN526] and [PM527] about helping non-tech savvy people do things, Mr Daly agreed "that was the main market" for people who need extra support and that is what Telstra Platinum provides" [PN526].
40.In re-examination [PN693] Mr Daly explained customers often made fairly simple mistakes for example plugging in Telstra modems, but for third party devices he thought the customer would have to be good at doing their own research to do it themselves.
41.In cross examination in response to questions around whether the virtual inspection calls were not complex [PN469] and didn't require 'specific knowhow and judgement within a specific discipline or work area' at [PN473] Mr Daly said ‘complexity varied’ [PN470] even if the fix was fairly simple [PN471] and at [PN475] agreed his role involved finding and interpretating materials.
42.In response to questions about distinctions between working with technology and technical work that requires specific expertise [PN542] Mr Daly agreed there would be a difference, particularly around qualifications [PN543].
43.Regarding the option to escalate an issue he couldn’t resolve, Mr Daly agreed there were a range of paths available [PN516], but faults about network problems had clearer pathways of escalation to the network faults team whereas calls about Telstra or other devices was less clear [PN515]. But he also said he would ask a subject matter expert (SME) for advice, not escalate the call to them and in re-examination he said this does not happen very frequently [PN695]. The Agreed Statement of facts at [26] also dealt with the escalation pathways.
44.Mr Daly’s answers to these questions about ‘tech savvy’ people and the technical nature of the calls he takes viewed in light of other evidence including:
·The answers to the questions about Telstra Platinum being for people who are ‘non-tech savvy’ are mostly about the WhasApp call which required complex research by Mr Daly or advice about WiFi extenders or third party devices. These types of calls Mr Daly classed as ‘Technical Platinum’ in his Annexure “G” and being 21% of his calls.
·Most of the examples from the virtual inspection Mr Daly classed as ‘fairly simple’ [PN447] and Mr Daly’s statement of 3 September 2021 (Ex14) provides some more complex examples.
·When asked about whether helping a customer with an IT issue was technical, the following exchange occurred at [PN635-636]:
So when you're helping a customer with an IT issue, I put it to you that most of these Platinum category, the one that you've created, is about helping customers with their technology, do you agree? Well, that's my job, to help them with their technology and resolve their technical problems.
But it doesn't really involve applying knowhow or judgment within a specific discipline, does it? Well, I'm doing technical knowhow, based on my experience and training on the job.
· Sometimes the fix is a simple as turning the modem on or off again or ordering a new one. But the process of diagnosis, testing, identification of the fault can be quite complex, involve multiple systems and tests and the workers skills and experience. Issues with non-Telstra devices require research and experience where the knowledge guides are not wholly reliable. For example, at [PN455] Mr Daly briefly sums up some calls from the virtual inspection which shows the sometime complex diagnosis process. Another example is from the Medical Assistance call is at [PN178] where Mr Daly explains some of the various complex steps to access and identify the fault.
· The service Mr Daly provides as part of the product sold by Telstra being Platinum or Business Tech Services is a 24/7 IT help covering a wide range of issues and devices – the Agreed Statement of Facts contains a list at [18] of the types of calls. The WhatsApp call is an example of Mr Daly providing a customer service where he uses his research skills and IT knowledge and experience to identify and assist a customer who is paying for a premium Telstra product marketed as ‘24/7 IT help’. This should fall within the definition of Customer Service (Technical).
45.Whether a person could seek advice from a shop or use google to research methods about their IT issues or whether they should pay for and seek more professional assistance does not really answer the question of what is or is not ‘technical’ within the scope of the disputed definition of Customer Service (Technical). Ultimately that issue is an interpretational exercise. That definition requires employees to “apply practical technical know-how and judgement within a specific discipline or area of technical work to undertake job tasks”. The technical discipline or area the evidence has shown to be two-fold: faults and problems with NBN or WiFi/Modems and issues and advice about a range of other customer and business information technology products, devices and programs which require more troubleshooting and autonomous research.
46.Conclusion available to be drawn: The work performed by Mr Daly includes using his training, skills and experience and Telstra systems and tools to diagnose customers NBN or WiFi connection issues and this falls he within the definition of ‘jobs include fault identification, isolation, testing, and or repair’. He also provides support for a range of Telstra devices and non-Telstra devices and programs, which often require him to use his research, technical judgment and experience rather than Telstra provided knowledge guidance to diagnose and resolve the issue. This falls within the definition of ‘product support’ being the provision of Telstra Platinum and Telstra Business Tech Services.
The volume and type of calls taken:
The evidence of Mr Daly:
47.In cross examination Mr Daly was asked questions about the accuracy of how much time Mr Daly spent taking calls [PN601] and how many calls he logged [PN628] of Annexure “G” (Ex14). Mr Daly said “the information was complete, but there could be mistakes” [PN578] and that he didn’t log all his calls, hang-ups, disconnections or multiple calls from the same customer [PN624] and that there may be some missing calls but overall it is relatively accurate and small changes wouldn’t bring down the percentage of calls. He also explained his categorisation of those calls as being based on an assessment about the nature of the call and how it fell under the Agreement definitions [PN632], [PN634].
22.Staff are encouraged to follow Telstra’s documented processes because this promotes a “consistent customer experience”. The resources are made available and their use is encouraged. Mr Daly’s evidence that because of his own experience he is less reliant on these materials is not surprising given his length of service, and does not change the fundamental nature of the job in which he is employed. Thus, for example, Mr Daly accepted that a less knowledgeable employee following a guide to modem installation would reach the same result that he would. Mr Daly’s evidence that he can perform the role without such assistance, even if accurate, is of little moment.
23.As Mr Daly accepted in cross-examination, his job essentially involves searching and interpreting guidance material and relaying it to a customer. Whether that material is obtained from a Telstra database or from taking the initiative to run a Google search is not material - the fact is that employees are not applying independent judgment or technical skill. Mr Daly acknowledged that Telstra has higher-level technical resources (subject matter experts) to whom complex issues are escalated although he often he jumps “straight to Google” to find a solution. Without any disrespect to CCSS employees, who are highly capable customer service specialists, the “tech” aspects of their work is “on rails”. That Mr Daly is comfortable operating outside that environment (at least to a degree) does not assist his case. It would be an absurd outcome if providing advice to customers which is available to anyone using Google weighed in favour of a finding that that one was a “Technical” customer support employee under the Telstra EA.
24.The Commission does not need to concern itself with whether or not Mr Daly performs the role in the same way as other CCSS employees. Mr Daly is an experienced employee. It stands to reason that a person who has helped a customer fix an issue with their Wi-Fi internet connection 100 or more times might not need to read the relevant script or guide, because it naturally becomes second nature. Thus, Mr Daly might have an average call time of 700 seconds where Telstra’s requirement is 1200 seconds. Nevertheless, the guidance and support is there. The role does not require any skills in a specific discipline or technical know-how. The role involves helping customers with their technology, it goes no further than that.
25.As the Commission summarised Mr Hampson’s oral evidence, and he accepted:
“Employees come in at an entry level. They don’t require any recognised information technology qualifications. To support them, particularly in the early phases of their work there are these scripts which they’d be well advised to follow. But over time with their skills and experience from on the job and the like, they’re more likely than not to exercise a bit more autonomy in how they respond to customer queries.”
26.This is a fair summary of how an employee can be expected to evolve in the role, as Mr Daly has.
Key factual proposition two: Mr Daly, as a CCSS employee, does not perform most of the indicative tasks of the Technical role
27.The CPSU conceded in the Form F10 Application and in its later filed material that Mr Daly does not perform the tasks outlined in the first sentence of the Indicative Tasks. The CPSU does not contend that Mr Daly or other CCSS employees do work such as: network construction, maintenance, operation, performance monitoring or equipment installation. It relies on one sentence within the definition: “Jobs also include fault identification, isolation, testing and/or repair, basic design within existing infrastructure product support and advice to other employees that is of a technical nature”. This approach is misconceived. The correct approach is to look at the principle purpose for which the employee is employed. It is not to cherry pick words within a classification and disregard its context and the remainder of the classification.
28.It may be accepted that Mr Daly performs a degree of fault identification, testing and product support for customers albeit remotely. That ought not however lead the Commission up a blind alley. The Indicative Tasks are not paramount here - the Specific Discipline Judgment Requirement is. While CCSS employees may do some things referred to in the Indicative Tasks, they are given tools to do these things “on rails”. Certainly they do not repair Telstra systems. At the hearing, Mr Daly explained that, in situations where troubleshooting did not resolve a customer’s issue, he would “[book] a technician to go out and provide an entrance service”. That is consistent with Telstra’s case.
29.Further, network issues are not the sole domain of Customer Support (Technical) jobs, as the Non-Technical stream deals with “customer enquiries typically relating to… scheduling of network faults… or directly in support of the field workforce”. “Relating to” are broad words of connection, and one could not seriously contend that each of Mr Daly’s work tasks, on his own evidence, does not relate to one of the identified subject matters, themselves being broadly described.
30.Beyond this, some of Mr Daly’s evidence relating to his performance of some of the Indicative Tasks defied common sense and credibility. Mr Daly contended, for example, that he performs some work relating to the design or build of networks when he advises a customer with bad Wi-Fi in one part of the house to use a Wi-Fi extender. Within the specific context in which the Telstra EA was negotiated and made - that of an agreement covering a telecommunications and technology company - references to a “network” are plainly to telecommunications networks administered or used by Telstra. It could not be accepted that Mr Daly is engaged in building or designing “networks” within the meaning of section 15 of the Telstra EA because he helps callers set up a Local Area Network or Wireless Area Network in their home or small business over the phone. If that is true, then any customer of Telstra who is sent out and connects a Wi-Fi extender in their home is engaging in network design of Telstra’s network, a proposition which cannot be accepted.
31.Further, while Mr Daly characterised the recommendation of a Wi-Fi extender as “solutions design”, to his credit he readily conceded that one could get the same level of advice at JB Hi-Fi. It would be an absurd outcome if providing advice of a nature otherwise available from an entry level electronics retail employee covered by a retail industrial instrument weighed in favour of a finding that one was a “Technical” customer support employee within a telecommunications provider under the Telstra EA.
32.Further again, Mr Daly does not provide “advice to other employees that is of a technical nature” which is another key aspect of the “technical” definition. When cross-examined about this matter he acknowledged his role does not involve advising or assisting other Telstra staff with their IT issues and he does not routinely coach other employees.
Factual proposition three: Mr Daly’s work is not technical merely because it involves working with technology
33.The parties agree that the CCSS role is predominately involved in managing or undertaking customer enquiries. That some functions of the role could, at a superficial level, be described as “technical” insofar as they involve dealings with customers using technology (for example, assisting a customer with installing a modem , troubleshooting a Wi-Fi internet connection , accessing email , or opening a PDF file ) does not take matters further.
34.It is not surprising that much of a CCSS employee’s work involves technology in one way or another. They perform customer support work on behalf of a leading telecommunications and technology company. The real question here is whether that work actually requires the application of know-how and judgment in a specific discipline or area of technical knowledge. Here, the evidence indicates that it does not. Again, this is not in any way to diminish the work of CCSS employees whose main skills are in providing customer service.
35.During the virtual inspection, the Commission saw and heard various calls between customers and Mr Daly and calls between customers and other CCSS employees. Mr Hampson summarised the calls from the virtual inspection as “general customer inquiries where we lead customers to solutions”. Mr Daly characterised these calls as “fairly simple” - a fair summary. While acknowledging the necessarily limited sample, Mr Hampson indicated that he tried to pick out “fault calls or calls that would be potentially classed as technical calls”. The CPSU has highlighted “the WhatsApp call” as one which involved the use of complex research skills and IT knowledge to offer a solution to a Telstra Platinum customer. However, Mr Daly agreed that doing research on Google was not particularly technical but an example of the support that he gives those customers in relation to non-Telstra technology. Ultimately, it makes no difference whether a CCSS uses the support provided by Telstra or undertakes a Google search - it does not involve the use of technical expertise or judgment to reach a solution. In its final submissions, the CPSU refers back to Mr Daly’s statement for examples of “more complex” calls; however as set out in Mr Hampson’s evidence, a CCSS will use Telstra’s assurance tools and knowledge database to manage these issues and an employee with no technical background would reach the same outcomes using these resources. Further, Mr Hampson’s evidence that WhatsApp is not a supported application, and Mr Daly was not required or expected to support the customer with this particular application in the absence of guides built by Telstra should be accepted.
36.In its closing submissions, the CPSU emphasised the advertising materials on the Telstra Platinum website and the fact that the website did not refer to any restrictions on the Platinum and Telstra Business Tech service offering. In Telstra’s respectful submission, this material only serves to distract from the Commission’s task (as outlined at paragraph 6 above). Telstra accepts that the advertising material in evidence refers to “technology advice and support” for IT issues and “most” Australian-supplied internet connected gadgets such as computers, smart TV’s, smartphones and tablets. This material is of no interpretational value in determining whether the work falls into the Customer Support “Technical” classification.
37.Finally, it is now admitted that the change of banding in November 2019 was part of a broader initiative aimed at simplifying customer service. The evidence of Ms Schulz that the degree to which the roles were “technical” had no bearing on the decision has not been challenged.
Factual proposition four: Mr Daly’s time audit evidence including Annexure G should be disregarded because it relies on his own definition of technical, not the Telstra EA definition
38.The Commission would not, in dealing with these matters, be led to a contrary conclusion by Mr Daly’s evidence that the bulk of his work involves dealing with (as he described them) “technical” calls. As answers given during his cross-examination made clear, Mr Daly’s taxonomy treats effectively everything other than sales and billing matters and queries about the Telstra Platinum service as “technical” calls. This system however elides a requirement to apply “practical technical know-how and judgment within a specific discipline or area of technical work” with the fact that an enquiry involved technology.
39.This eliding of language is the foundation of the wholly misconceived submission that on a time basis, Mr Daly spends 82% of his time on calls relating to “customer IT issues or problems which are technical in nature”. If this evidence were accepted, it would abolish any distinction between Technical and Non-Technical Customer Support under the Telstra EA.
40.Annexure G represents Mr Daly’s summary of his call logs for January to June 2021. As he readily admitted, this is a document he devised solely in order to support his case in the Commission. It has no status under the Telstra EA, his employment agreement or any other document relevant to his employment.
41.A high-level review of the source text files used to create Annexure G and Telstra’s analysis using Mr Daly’s notes from its Console system (Exhibit 35), demonstrates that these calls do not call for know-how and judgment within a specific discipline or area of technical work. Properly scrutinised, this evidence is negative to Mr Daly’s factual case. Whereas Mr Daly’s text files do not contain detailed descriptions for each call he classifies as “technical”, the notes from Telstra’s systems show a significant number of calls classified as “technical” work by Mr Daly refer to advising customers with simple fixes - to plug in, reboot or power cycle their modem or assisting customers with resetting a password.
42.Telstra respectfully submits that Annexure G to Mr Daly’s statement is irrelevant opinion, applies an irrelevant definition and should be disregarded by the Commission in relation to what is ultimately an exercise of construction.
Alternative argument: Factual proposition four: Mr Daly’s time audit evidence including Annexure G is not reliable and should be disregarded
43.Alternatively, Telstra submits that Mr Daly’s time audit evidence including Annexure G is not reliable and should be disregarded. The description of the tasks performed can be given some weight, though this part of the evidence goes no further than listing the kinds of tasks performed by a CCSS employee. Scrutiny of the record of the tasks performed is, in our submission, helpful to Telstra’s case, in that it demonstrates the relatively simple customer service assistance Mr Daly performs, often repetitively.
44.In terms of the inaccuracy and unreliability of the time audit evidence and Mr Daly’s characterisation of the tasks performed:
(a)When confronted with Telstra’s idle time report for the period January - June 2021, Mr Daly did not dispute that for 42% of his time he was idle, waiting for a call. Mr Daly did not dispute this or that his time audit did not account for idle time.
(b)When confronted with Telstra’s Inbound and Outbound Call Report for the same period, showing the very large number of calls that were excluded from his analysis - 52 calls missed in March 2021; 46 calls missed in April 2021 and 59 calls missed in May 2021 , Mr Daly admitted “There are mistakes and errors which will impact the overall percentages” although he had tried to make the log “relatively accurate” . Nonetheless, Mr Daly could not verify the impact of those missing calls without redoing the analysis. In circumstances where Mr Daly admits that on its face the time audit contains mistakes and errors, and on any objective view those errors are substantial, the Commission cannot have confidence in the time audit and Mr Daly’s percentage split presented to the Commission.
Evidentiary issue one: Telstra’s objections to the CPSU’s evidence - Annexure G should have been excluded and ought to be disregarded
45.On 6 October 2021, Telstra filed with the Commission and served on the CPSU a number of material objections to the CPSU’s evidence in a document entitled “Telstra’s Objections to the Admission of CPSU Evidence”. The Commission marked these objections as Exhibit 38 but did not rule on any of these objections by the time evidence had closed.
46.During the hearing, the CPSU, with no prior notice to Telstra or the Commission, made a number of evidentiary objections to Telstra’s evidence. Each of these objections was ruled on immediately and the majority in the CPSU’s favour.
47.In particular, several parts of Ms Schulz’s evidence were struck out on the basis that they constituted hearsay or irrelevant opinion, the latter being opinion about “what technical means…”. When addressing the objection to paragraph 8 of her statement, the Commission asked Telstra’s witness what academic qualifications or IT skills she had. Ms Schulz explained that as an Employee Relations specialist with extensive experience at Telstra she had “quite a bit of experience in terms of how we apply those classifications to the roles across Telstra” . However, the Commission struck out this evidence on the basis that she was not being put forward as an expert witness and the evidence appeared to be her opinion. A consistent approach should have been applied to deciding upon the objections made by Telstra to Mr Daly’s evidence as well. If it had been, each of the parts outlined in Telstra’s objections to the CPSU’s evidence and Annexure G which formed the basis of the CPSU’s case, would not have been received into evidence. This is because much of Mr Daly’s case relied on the presentation of a self-invented and irrelevant classification system based entirely on personal, subjective opinion about what is technical work.
Evidentiary issue two: Examination-in-chief not permitted
48.The Commission earlier declined to grant Telstra permission to be represented in part because it was not satisfied that the hearing would be conducted more efficiently by external lawyers or in-house counsel. The Commission did not allow Telstra’s advocate to conduct any examination-in-chief other than some questions arising out of the virtual inspection. The Directions dated 17 August 2021 did not indicate that there would be no opportunity to adduce any supplementary evidence-in-chief. The Commission adopted a blanket rule regardless of the length or subject matter of the proposed questioning, or whether there would be any real prejudice to the CPSU and the steps that are routinely taken in hearings of all types to remedy such prejudice. No urgency dictated this approach, and no reason was apparent for denying Mr Devereux an opportunity to put to a Telstra witness a question or questions arising out of the evidence Mr Daly had given in cross-examination.
49.Allowing additional evidence from Telstra’s witnesses would have assisted to clarify certain key factual matters. For instance, the purpose of Telstra Platinum and why it was brought into existence was raised in the Daly statement in reply at [13] after Telstra filed its written materials in accordance with the Commission’s directions. Telstra was not afforded an opportunity to clarify or respond to this in examination-in-chief or to respond to evidence Mr Daly gave in cross-examination with examples of specific disciplines or areas of technical work at Telstra; and the extent to which a CCSS engages in tasks listed in the Customer Support (Technical) definition noting that there is some overlap between the relevant definitions. The approach taken by the Commission to adopt a blanket rule in respect of any further evidence in chief at all was, with respect, not appropriate in a case like this where there is in fact a right answer to the question for arbitration and the Commission is not exercising an unconfined discretion; where the evidence would have been beneficial to the Commission’s task; where the statutory mandate is to exercise powers in a way that would give the Commission the best information concerning the merits of the matter; and where there were no case management considerations (and none explained or mentioned) that militated against some short, relevant examination in chief having regard to earlier evidence given at the hearing. It is submitted this should be taken into account in evaluating the evidence.
Conclusion
50.For all of the above reasons, on a proper construction of Section 15 of the Telstra EA, Mr Daly, in his role as a CCSS, is appropriately classified as Customer Support (Non-Technical).”
Consideration
Question 1 – What do the classification descriptors in section 15 of the Agreement mean?
I accept that in applying the Agreement I should not approach the task in a narrow or pedantic way.[13]
Further, Berri Principle 1 is the necessary starting point and must be applied. It states that,
“The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(a)the text of the agreement viewed as a whole;
(b)the disputed provision’s place and arrangement in the agreement;
(c)the legislative context under which the agreement was made and in which it operates.[14]
For this reason, it is appropriate to again set out the two relevant definitions in section 15 of the Agreement.
“… Customer Support (Non-Technical)
Jobs in this family are predominantly occupied in managing or undertaking
customer enquiries typically relating to billing, scheduling of network faults,
provisioning/order management, credit management, complaints management
or directly in support of the field workforce.
Customer Support (Technical)
Jobs in this family include managing or undertaking activities such as network
construction, maintenance, operation, performance monitoring and equipment
installation into the network or customer premises. Jobs also include fault
identification, isolation, testing and/or repair, basic de- sign within existing
infrastructure, product support and advice to other employees that is of a
technical nature.
Employees are expected to apply practical skills and knowledge to the
technical aspects of Telecommunication and Information Technology. The
work is focused, either directly or in coaching others, on applying practical
technical know-how and judgement within a specific discipline or area of
technical work to undertake job tasks.”
The descriptors in the Agreement have a long history. Publicly available resources demonstrate that like descriptors have appeared in the Telstra Enterprise Agreement:
a) 2005-2008 (see definition of “Customer Sales and Service Workstream”/”Customer Field Workstream”),
b) 2010-2012 (see definition of “Customer Sales and Service Workstream”/”Support Workstream”),
c) 2012-2015 (see the new definitions of “Customer Support (Non-technical)/Customer (Technical)”),
d) 2015-2018; and
e) 2019-2021 (the current Agreement).
Accordingly, it would appear that the descriptors were first included in a Telstra enterprise agreement at time when the telecommunications and information technology landscape was different to that which it is now.
What then is to be made of the use of the word “technical”? The Macquarie Dictionary defines “technical” to mean,
“adjective 1. belonging or relating to an art, science, or the like: technical skill.
2. peculiar to or characteristic of a particular art, science, profession, trade, etc.: technical details.
3. using terms or treating a subject in a manner peculiar to a particular field, as a writer or a book.
4. skilled in, or familiar in a practical way with, a particular art, trade, etc., as a person.
5. relating to or connected with the mechanical or industrial arts and the applied sciences: a technical school.
6. so considered from a strictly legal point of view or a rigid interpretation of the rules: a military engagement ending in a technical defeat.”
(my emphasis)
What is clear from the definition is that the term “technical” has multiple meanings.
The Macquarie Dictionary defines “non-technical” as “adjective, not technical”.
In this sense the use of the phrases “Non-Technical” and “Technical” in the Agreement are invested with some ambiguity (Berri Principle 7). I disagree with the CPSU submission that section 15 is not ambiguous.
Consequently, section 15 needs to be considered in context (Berri Principle 8). Relevant context includes the following:
a) Because section 15 appears in an enterprise agreement it is intended to be enforceable and give rise to legal rights and obligations.
b) This part of section 15 is intended to create a hierarchy between types of work. Non-technical work is at the bottom of the hierarchy. Technical work is at the top of the hierarchy. This is the industrial context and purpose of this part of section 15.
c) Although it would have been possible to include greater granularity in the hierarchy the Agreement only contains two choices.
d) The objective intention is that only two choices exist.
e) Consequently, employees/positions must be placed into one of the two options – Non-Technical or Technical.
Further, the phrases “Non-Technical” and “Technical” must be construed in the context of the Agreement as a whole.
Both descriptors refer to tasks/jobs that are included within them. Neither list is exhaustive. However, the tasks/jobs in the descriptors are indicative of the complexity of the work.
It is apparent from the tasks/jobs included in the “Non-technical” descriptor that the work involves relatively uncomplicated matters or basic customer enquiries. Matters such as queries about billing, the scheduling of network faults, provisioning/order management, credit management, complaints management.
It is apparent from the tasks/jobs included in the “Technical” descriptor that the work is more complex than that described in “Non-technical”.
“Undertaking activities such as network construction and maintenance” are suggestive of some type of engineering capability. “Technical” is often used to describe people in engineering roles. However, the descriptor does not expressly call for engineering skills or qualification. Therefore, it must be possible to be “Technical” without being an engineer or holding specific qualifications.
“Managing … activities such as network construction…” would obviously require more skill than the types of matters described as “Non-Technical”, such as a billing enquiry. The phrase “Technical” clearly contemplates and requires greater skill. However, it does not require a specific level of education. If it did, the descriptor would say so.
Consequently, all that can be deduced from the “Technical” descriptor, considered in context, is that the worker/position must understand or have skills and knowledge relating to telecommunications and information technology. As the descriptor clearly states, “Technical” employees are “expected to apply” such skills.
From the descriptors it is apparent, and I find, that:
a) “Non-technical” requires no understanding of telecommunications and information technology. It is a customer enquiry role focused on straightforward or relatively simple enquires; and
b) “Technical” requires the application of practical skills and knowledge of telecommunications and information technology. “Practical technical know-how” is required.
(Question 1 Answer)
To construe section 15 otherwise would be to apply a narrow and pedantic approach. It is an approach to be avoided.
The Question 1 Answer does not involve a rewriting of the Agreement to achieve what might be regarded as fair or just (Berri Principle 2). It relies simply on the words used in section 15 considered in the context of the hierarchy intended to apply.
The Question 1 Answer demonstrates what must have been the common intention of the parties, viewed objectively (Berri Principle 3). It is what a reasonable person would understand section 15 to mean.
Question 2 – What does Mr Daly do (as properly required of him as a Customer Service Consultant employed in Premium Services and Telstra’s Business Tech Services)?
Telstra submitted that “while the CPSU’s case is around work and characteristic of Benjamin Daly, the correct approach is to assess the work of, and requirements to fill the role of, a CCSS employ.” I agree.
However, Telstra did not contend that Mr Daly was an atypical CCSS. There is no evidence to suggest that I cannot rely upon his work as anything other than indicative of the CCSS role.
The parties filed an Agreed Statement of Facts. Accordingly, I find that Mr Daly takes customer calls about:
a) sales, billing, order management and complaints;
b) NBN connections;
c) ADSL and land line faults;
d) cable faults;
e) basic email issues;
f) modem problems;
g) connecting to WiFi;
h) discontinued Telstra products;
i) setting up third party (in non-Telstra) devices, including phones, tablets, printers, faxes, scanners, modems and WiFi extenders, PCs/laptops and Bluetooth enabled devices;
j) set up and configuration of Virtual private network (VPN), port forwarding and remote desktop configuration;
k) security cameras systems and gaming consoles;
l) install or troubleshoot software such as Microsoft office suite and third party email clients (Thunderbird, em client, windows live mail, mac mail);
m) assist with installing and configuring anti-virus protection, PC optimisation (slow computer);
n) setting up third party smart home devices (lights, sensors);
o) business grade equipment such as WiFi enabled Eftpos machines.
I further find that Mr Daly:
a) was not required to have any particular skill or qualification for the role,
b) did not receive any recognised qualification after the training provided by Telstra,
c) experienced a high degree of on-the-job learning,
d) is, for the most part, provided with scripts to assist answer customer enquiries,
e) is not mandated to use scripts,
f) does not always use scripts because of his depth of knowledge and experience,
g) has no autonomy over the types of calls he receives,
h) exercises initiative in a client centric way aimed at resolving customer queries. For example he sometimes will “Google” answers for customers. Telstra does not require him to go above and beyond like this. However, they also have not instructed him not to do it and derived a benefit from Mr Daly’s initiative.
Mr Daly sort to rely upon Annexure “G”. Telstra objected to the Commission receiving it. In coming to this decision I have not relied upon Annexure “G”. It lacked the necessary forensic value (although that is not a criticism of Mr Daly).
However, I was greatly assisted by the evidence adduced during the “virtual” inspection. That evidence went very much to the complexity of the work undertaken. Not all of it was of an information technology flavour.
Question 3 – Noting the answers to Question 1 and 2, where in the section 15 classification structure does Mr Daly’s position fall?
How a person or role is defined and viewed is important. This is because it affects their confidence and ability to do their job well. If an employee does not feel valued (“you’re just the [insert position that is looked down upon]”) or respected, it will diminish the quality of their work and squash innovation and new ideas. Valued and respected employees are more productive.
I have observed already that section 15 has a long history. Further, that section 15 lacks granularity. Having considered the evidence and listened to the calls received by CCSS employees it is clear that the nature of the calls required different depths of knowledge along a continuum of knowledge.
A better, or more fit for purpose, hierarchy might inject a mid-point between “Non-Technical” and “Technical”. It might be useful not to use the phrase “technical” at all. Maybe it would be more useful if section 15 contained something like,
· Customer support (uncomplicated),
· Customer support (intermediary), and
· Customer support (complex).
However, as section 15 is currently drafted, I must choose between only two choices. I am not responsible for that limited choice. But I must work with it. It is within the power of the parties to give section 15 greater granularity and relevance to the work performed in 2022 and beyond.
The consequence of binary choice, between Non-Technical and Technical, is that the placement of an employee/position within the descriptors may:
a) like a knitted sweater that has naturally stretched, be oversized, in the sense that the descriptor contains more than the employee does/position entails;
b) like a cotton sweater that has been shrunk in the washing machine or dryer, fit uncomfortably, in the sense that the descriptor only narrowly covers what the employee does/position entails; or
c) like a Jac + Jack sweater, fit perfectly.
In the present matter this is an awkward fit.
Telstra markets the “Telstra Platinum” products as “a tech support service that can help with your IT and gadget issues.”
We provide technology advice and support for most Australian-supplied internet connected gadgets. This includes internet connected devices you bought from Telstra and most of those you bought from other suppliers in Australia.
And it doesn’t matter if your phone or internet service is with Telstra or another company. So long as you’re a Telstra Platinum customer we can help you.
In relation to “Telstra Business Services” Telstra explains how it helps business like this,
All businesses, big and small, benefit from reliable IT support. That's why our business experts are available 24/7, online or over the phone, to offer tech solutions, whether you need to solve an issue or seek professional IT advice. Working with business tech has its challenges, don't let them slow you down.
Presumedly, Telstra markets the products as “tech” and as involving information technology support because it is technical work. There was no evidence that Telstra was engaging in misleading and deceptive conduct in the marketing of these products. I accept how Telstra markets the product to the world at large as an accurate statement of the services offered.
It is Mr Daly and other CCSS employees like him then that provide this “tech support service” (Telstra Platinum) and “reliable IT support” (Telstra Business Services) to subscribers to these Telstra services.
Clearly some of the calls taken by Mr Daly are “Non-technical”. It was an agreed fact that he takes calls about sales, billing, order management and complaints. These tasks clearly fall within the “Non-technical” descriptor in the Agreement. But it is a minor part of his role.
Beyond the calls about sales, billing, order management and complaints Mr Daly’s role bears little resemblance to the “Non-technical” descriptor.
More than a basic call centre skill is required of Mr Daly.
What is apparent is that the “Non-technical” work is not the “major and substantial employment” of Mr Daly or the “principal purpose” or “primary function” of Mr Daly. It is rather, the work (listed above and agreed to by the parties) that requires the practical application of skills and knowledge of telecommunications and information technology.
There is much in the list of jobs/tasks contained in “Technical” that Mr Daly does not do. The work that is suggestive of some engineering skill or experience for example. However, the jobs in the “Technical” family only include those jobs. It is a non-exhaustive list. The phrase “product support” in the first paragraph of the descriptor definitely applies to Mr Daly. “Fault identification” is also relevant to Mr Daly’s work.
However, it is the second paragraph that most accurately picks up the work undertaken by Mr Daly. That related to the application practical skills and knowledge to the technical aspects of telecommunications and information technology.
That is not to say that all of the IT work is complex. Some of it is fairly basic. Listening to some of the calls during the hearing even I (with no IT qualifications) was able to work out the solution. But the Agreement does not divide the work between “basic” and “complex”. It divides it between “Non-technical” and “Technical”. The major and substantial part of Mr Daly’s role requires him to have skill and knowledge of information technology.
The fact that Telstra provides some scripts and extensive knowledge databases to assist with the work does not deprive it of its information technology flavour. It just makes the work easier to do. However, the Agreement does not divide the work between “easy” and “hard”. If Telstra wants the work to be classified in another way, it should bargain for it. It is not the role of the Commission to rewrite the Agreement.
The fact that Mr Daly may perform work in a more autonomous way than might other CCSS employees is also not determinative of the issue. The Agreement does not divide the work between “autonomous” and “nonautonomous”.
The fact that Telstra provides training to employees and the fact that the training does not result in a formal qualification is also not determinative of the issue. The training is about Telstra’s technical processes, products and tools. Even if the training were to be described as “entry-level”, that would deprive the training of its information technology flavour. The training is designed to assist CCSSs deal with “complex” matters (as the title of a Complex Customer Service Specialist suggests).
Consequently, as between the descriptors “Non-technical” and “Technical”, to try to fit Mr Daly into:
a) the “Non-technical” descriptor is a very uncomfortable fit. He barely gets his arm into the sleeve of the jumper. He has outgrown it.
b) the “Technical” descriptor is not a perfect fit. It’s a baggy fit. However, as between the two options it is the garment we are left with. It is the best fit.
The role of CCSS is not, in a major and substantial way, a customer enquiry role focused on straightforward or relatively simple enquires. It requires (albeit not all the time) the application of practical skills and knowledge of telecommunications and information technology.
Conclusion
For the reasons set out above, the Commission, as presently constituted, determines that “Yes” is the answer to the question,
“Should Mr Benjamin Daly, who performs work for Telstra as a Complex Customer Service Specialist, be classified as Customer Support (Technical) under the Telstra Enterprise Agreement 2019-2021?”
COMMISSIONER
Appearances:
Mr K Barlow, Legal Officer, CPSU for the Applicant.
Mr W Devereux, Employee Relations, Assisted by Ms G Simmonds, Legal Counsel and Ms V Galloway, Legal Counsel, Telstra Corporation Limited for the Respondent.
Hearing details:
Sydney, 7 October 2021
Final written submissions:
Applicant, 29 October 2021
Respondent, 12 November 2021
[1] Clause 25 of the Agreement.
[2] [2020] FWCA 3097.
[3] Ibid, 12.
[4] Clause 4 of the Agreement.
[5] Ibid. See also [2020] FWCA 3097, [14].
[6] Telstra objected to me receiving Annexure G. I have not relied upon it in coming to this decision.
[7] [2017] FWCFB 3005 (‘Berri’).
[8] Applicant’s Outline of Submissions dated 3 September 2021 (Exhibit 13), at Court Book p 58.
[9] Respondent’s Submissions dated 17 September 2021 (Exhibit 23), at Court Book p 139.
[10] CPSU Submissions in Reply dated 24 September 2021 (Exhibit 29), at Court Book p 251.
[11] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Berri Pty Ltd[2017] FWCFB 3005, 268 IR 265 at [114].
[12] WorkPac Pty Ltd v Skene [2018] FCAFC 113, 264 FCR 536 at [197]. See Telstra’s initial submissions at [6] - [7].
[13] Kucks v CSR Limited [1996] IR 166, 182.
[14] Berri (n 25).
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