Jayawardana v Telstra Limited
[2024] VMC 17
•11 October 2024
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
INDUSTRIAL DIVISION
Case No. MAG-CI-230098150
| SHEHAN JAYAWARDANA | Plaintiff |
| and | |
| TELSTRA LIMITED TRADING AS TELSTRA | Defendant |
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| MAGISTRATE: | K Fawcett |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4, 5 and 6 March, written submissions 15 and 20 March 2024 |
| DATE OF DECISION: | 11 October 2024 |
| CASE MAY BE CITED AS: | Jayawardana v Telstra Limited |
| MEDIUM NEUTRAL CITATION: | [2024] VMC 17 |
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INDUSTRIAL LAW – Fair Work Act 2009 (Cth) s 50 – alleged contravention of enterprise agreement – dispute as to Plaintiff’s classification level under enterprise agreement – principles of construction of enterprise agreements – principles for determining applicable classification.
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APPEARANCES: | |||
| For the Plaintiff | Daniel Dwyer | Communications Electrical and Plumbing Union | |
| For the Defendant | Counsel Chris O’Grady KC Dimitri Ternovski | Solicitors Seyfarth Shaw Australia | |
TABLE OF CONTENTS
INTRODUCTION
MR JAYAWARDANA’S CONTRACTS AND THE CLASSIFICATION STRUCTURE
RELEVANT LEGAL PRINCIPLES
Principles guiding the proper construction of an Enterprise Agreement
Approach to determining an employee’s classification level
APPROACH TO THE EVIDENCE
THE OPTICAL FIBRE NETWORK COMPARED TO THE COPPER NETWORK
MR JAYAWARDANA’S WORK
The Melbourne Fibre Team
Mr Jayawardana’s role
Repair and Maintenance Work
Identifying the location of a fault
Options for rectifying the fault
Major fault work
Country fault work
Time frames for fault work
Advances in technology and complexity of Repair and Maintenance Work
Wideband Work
Project Work
Complexity - Wideband Work/Project Work v Repair and Maintenance Work
General Inspection Work
Area Point of Contact (APOC) Work
Supervision, training and work performance
Parts of the network on which Mr Jayawardana works
MR JAYAWARDANA’S MAJOR AND SUBSTANTIAL EMPLOYMENT
WORK AND CLASSIFICATION OF OTHER CFW EMPLOYEES
DFST employees
Complexity - DFST Wideband Work v MFT Wideband Work
Other witnesses
Other MFT Work
Relevance of the classification levels of other employees
ISSUES RELATING TO THE INTERPRETATION OF THE CJDs
Historical distinction between External and Internal work
Telstra’s capacity to direct Mr Jayawardana to perform less complex tasks
Treatment of identical content in some or all CJDs
The impact of changed technology on interpreting the CJDs
Specific interpretation issues flowing from the impact of changed technology
Location of work on the network - the CAN, IEN and Exchange
Can both of the CFW4 CJDs be considered together?
‘Horizontal’ and ‘vertical’ reading of the CJDs
DETAILED COMPARISON OF THE CJDs
Title
Job Purpose – primary role
Job purpose – typical functions
Generic statement
Examples
Repair and maintenance of the network, or a part of it
Installation and repair of CPE products and cabling, and associated work
Work on small and large Pair Gain Systems and Radio based connections.
Non-network interference and network interference work
Examples without equivalent in other CJDs
Accountabilities
Qualifications – Mandatory (no person to occupy job without this)
Qualifications/Experience level – desirable
Australian Qualifications Framework (AQF) Relativities
CONSIDERATION OF THE APPLICABILITY OF EACH CJD
CFW7 Installer/Repairer
CAN Infrastructure Build CFW4
CFW4 Installer/Repairer and CFW5 Installer/Repairer
Differences in Job purpose – typical functions generic statements
Prescribed Diagnostics/Complex Diagnostics/Very Complex Diagnostics
Range of solutions
Repair and Maintenance Functions
Other typical functions
Desirable experience and attributes
General complexity of the work
CONCLUSION
HER HONOUR:
INTRODUCTION
The Plaintiff Mr Shehan Jayawardana is employed by Telstra Limited (Telstra)[1] as a Fibre Technician, working on Telstra’s optical fibre network. Mr Jayawardana claims he has been underpaid by Telstra since 2019, in breach of the enterprise agreements applicable to his employment and s 50 of the Fair Work Act 2009 (the Act), because Telstra has incorrectly classified his role. Telstra denies that Mr Jayawardana has been underpaid and says he has been correctly classified.
[1]Mr Jayawardana was employed by Telstra Corporation Ltd until 8 December 2022, with his employment transfer to Telstra constituting a transfer of business under the Fair Work Act 2009 (Cth) and all liabilities of Telstra Corporation Ltd transferred to Telstra. Both entities are referred to as ‘Telstra’ in this decision.
This Court, an eligible State or Territory Court pursuant to s 12 of the Act, has jurisdiction to remedy any underpayment arising from the contravention of an enterprise agreement pursuant to s 545(3) of the Act and to impose pecuniary penalties pursuant to s 546 of the Act.[2]
[2]Section 50 of the Act provides that a person must not contravene a term of an enterprise agreement. Section 539 of the Act provides that s 50 is a civil remedy provision. Section 545(3) applies in respect of an amount required to be paid by an employer under the Act or Fair Work Instrument, and the employer has contravened a civil remedy provision by failing to pay the amount.
Determining Mr Jayawardana’s classification level requires consideration of Core Job Descriptions (CJDs) which underpin the enterprise agreement classification structure, and which have not been updated since 2002. At that time Telstra’s network predominantly used older transmission technologies, such as copper, rather than optical fibre, and the CJDs primarily refer to products and services based on these older technologies. Mr Jayawardana does not work on the copper network. The key issue in the proceeding is the interpretation of CJDs designed predominantly for the copper network and their application to Mr Jayawardana’s work on the optical fibre network.
MR JAYAWARDANA’S CONTRACTS AND THE CLASSIFICATION STRUCTURE
Many of the facts in the matter were agreed by way of a Statement of Agreed Facts dated 21 December 2023 (SOAF).The following background matters were not in dispute.
Mr Jayawardana has been employed pursuant to three successive written contracts. His 30 January 2012 contract provided that he was employed as ‘Constructor Repairer’ classified at CFW3. His 30 January 2013 contract provided that he was employed as ‘CAN Infrastructure Builder’ classified at CFW4. His current contract dated 26 October 2022 (2022 Contract) provides that he is employed as a ‘Service Technician’ classified as CFW4. The 2022 Contract was entered into following a corporate restructure and did not result in any changes to Mr Jayawardana’s role or duties.
At all relevant times, Telstra has classified Mr Jayawardana as CFW4. Mr Jayawardana contends that he should have been classified as CFW7 or alternatively CFW5 since at least 1 October 2019.
The classification references in Mr Jayawardana’s contracts, and in respect of the claim, are derived from the enterprise agreements applicable to Mr Jayawardana’s employment, being:
(a)the Telstra Enterprise Agreement 2015-2018 (2015 Agreement), from 12 November 2015 until 18 June 2020;
(b)the Telstra Enterprise Agreement 2019-2021 (2019 Agreement), from 19 June 2020 until 12 July 2022; and
(c)the Telstra Limited Enterprise Agreement 2022-2024 (2022 Agreement) from 13 July 2022 onwards.
The classification provisions have not materially changed across the enterprise agreements and the parties agreed that the 2022 Agreement provisions may be used as a proxy for the classification structure across each of the enterprise agreements.
Mr Jayawardana is a ‘workstream employee’[3] under the 2022 Agreement. Accordingly, his minimum fixed remuneration rate is determined based on the relevant Band,[4] which refers to the level of a job within the relevant workstream.[5] Mr Jayawardana falls under the ‘Customer Field Workstream’ or ‘CFW’, which is defined as:
Employees engaged in Customer Access Network (CAN) construction and/or in the end to end installation, operation, maintenance and repair of all services for customers and/or in the supervision and/or direct operational support of such employees and the testers in the service assurance call centres.[6]
[3]2022 Agreement, s 14, Dictionary.
[4]2022 Agreement, cl 7, Appendix B. B2.1 contains the minimum fixed remuneration rates which apply to Mr Jayawardana, as a Workstream Employee who is not a member of a defined benefits fund. It contains rates for Workstream Bands 1- 12.
[5]2022 Agreement, s 14, Dictionary.
[6]2022 Agreement, s 14, Dictionary.
Appendix C ‘Workstream Arrangements’ at clause C1 provides:
C1. WORKSTREAM PRINCIPLES
C1.1.Telstra will allocate a Workstream Employee to a Workstream (see the Dictionary for Workstream definitions).
C1.2. The following principles apply:
a) Work in each Workstream will be evaluated in accordance with the Telstra Job Evaluation and Classification System and these principles.
b) Each Band, within a Workstream, will have agreed representative Core Job Descriptions which form part of this Agreement. There may be more than one Core Job Description for each Band.
c)As part of the Telstra Job Evaluation and Classification process, managers will design any new jobs that will go into a Workstream. If Telstra and any new employee to whom the new job applies cannot reach agreement on the grading of the new job, the matter will be referred to a review team comprising:
i)an external consultant expert in Telstra's Job Evaluation and Classification System;
ii) a Telstra representative;
iii) the employee (who may be represented, including by a Telstra Union).
d)A majority of the three person team will determine the outcome and this outcome will be binding on the Parties to this Agreement without recourse to further review or appeal.
e)Telstra and the Telstra Unions may agree to change the current Core Job Descriptions during the life of the Agreement. However, they will not be changed without such agreement.
The Dictionary defines ‘Core Jobs [sic] Descriptions’ (CJDs) as:
Job descriptions that underpin the classification of Workstream jobs. These have been graded and placed into Bands by the Company’s Job Evaluation and Classification System using agreed job descriptions. Core jobs align particular job duties with Bands for the life of this Agreement, are subject to a review (see Appendix C), and guide evaluators in determining the appropriate Band for new or substantially altered jobs.
The CJDs collectively form the ‘Job Evaluation and Classification System’ referred to in the enterprise agreements, and there are four CJDs relevant to this proceeding: CAN Infrastructure Build CFW4; Installer/Repairer CFW4; Installer/Repairer CFW5 and Installer/Repairer CFW7. A detailed comparison of the text of the relevant CJDs prepared and agreed by the parties is copied at Appendix 1.
RELEVANT LEGAL PRINCIPLES
Principles guiding the proper construction of an Enterprise Agreement
The parties agreed that the principles governing the construction of enterprise agreements are as set out in Australian Manufacturing Workers’ Union v Berri Pty Ltd (Berri):[7]
[7](2017) 268 IR 285, 310; [2017] FWCFB 3005.
The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:
1.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:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
2.The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3.The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4.The fact that the instrument being construed is an enterprise agreement made pursuant to Pt 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the “parties” to enterprise agreements made pursuant to Pt 2-4 agreements, rather it refers to the persons and organisations who are “covered by” such agreements. Relevantly s 172(2)(a) provides that an employer may make an enterprise agreement “with the employees who are employed at the time the agreement is made and who will be covered by the agreement”. Section 182(1) provides that an agreement is “made” if the employees to be covered by the agreement “have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement”. This is so because an enterprise agreement is “made” when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8.Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10.If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11.The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and [sic] the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i)evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii)evidence of matters in common contemplation and constituting a common assumption.
13.The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s 180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14.Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15.In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.[8]
[8]Ibid, [114].
Telstra further relied on Sheehan v Thiess Pty Ltd (Sheehan)[9] and Target Australia Pty Ltd v Shop, Distributive and Allied Employees’ Association (Target)[10] in support of the principle that because enterprise agreements are instruments with statutory force, distinct from commercial agreements between parties, contextual matters should not be taken into account unless they are notorious or known to the persons intended to be bound by the agreement.
[9][2019] FCA 1762 [18], [22] (Appeal dismissed Thiess Pty Ltd v Sheehan [2019] FCAFC 198).
[10](2023) 324 IR 304, 323; [2023] FCAFC 66, [71]-[72], citing Sheehan v Thiess Pty Ltd, ibid, and Australian Rail, Tram and Bus Industry Union v KDR Victoria Pty Ltd (t/as Yarra Trams) [2021] FCA 1377 at [63], Wheelahan J.
The Target decision also cites the applicable broad principles for construing an enterprise agreement from WorkPac Pty Ltd v Skene (WorkPac)[11] which recognise, amongst other things, that the words of an agreement must be understood in their industrial context, in light of customs and working conditions, with intentions expressed in practical terms intelligible to parties but without careful attention to form and drafting, legal niceties or jargon. A purposive approach must be taken.
[11]Target, ibid, 308 [8]; citing Workpac v Skene (2018) 264 FCR 536; 280 IR 191, [197] (Tracey, Bromberg and Rangiah JJ).
Approach to determining an employee’s classification level
The principles applicable to determining Mr Jayawardana’s classification level were also not in dispute. The following extract from Davies v Carnachan Family Trust Pty Ltd[12] describes the required approach:
[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 the 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 362 at 379; Joyce v Christofferson (1990) 26 FCR 261 at 278.[13]
[12](2018) FCCA 45.
[13]Ibid, [12]-[14], cited in Michael Watson v Safe Places Community Services Limited [2020] FWCFB 2993, [32].
Additionally, each classification level must be considered in context, consistent with the approach described in Michael Watson v Safe Places Community Services Limited (Safe Places):[14]
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.[15]
[14][2020] FWCFB 2993.
[15]Ibid, [33], citing Christian Carnes v MSS Security Pty Ltd [2019] FWC 7695 [75].
Mr Jayawardana bears the onus of proving on the balance of probabilities that Telstra has contravened the relevant enterprise agreements by failing to classify and pay him in accordance with the CFW7 classification level, or alternatively the CFW5 classification level.
APPROACH TO THE EVIDENCE
I adopt as findings the facts as agreed in the SOAF, with limited exceptions, where indicated.
In addition, Mr Jayawardana and Mr John Ellery, union official in the Victorian Branch of the Communications Electrical and Plumbing Union Communications Division, Telecommunications & Services Branch (the Union) gave evidence for Mr Jayawardana. For Telstra, employees Mr Michael Cooper, Mr Tony Considine and Mr Riccardo De Blasio gave evidence.
Mr Ellery has been an official of the Union for 29 years and prior to this was an employee of Telstra from February 1975 to 1994. At the time he left Telstra, he was a senior technical employee and did not work with cable in the field. He experienced ‘the dawn of the fibre age’ in a research environment.
Mr Cooper is the ‘Principal – Access Networks’ and is responsible for the financial and operations functions in the Customer Access Network (CAN).[16] Over the 28 years he has been employed by Telstra he has worked in the field on copper cable and optical fibre maintenance. He was also team manager of the optical fibre team.
[16]The ‘Customer Access Network’ or CAN is the network that connects customer premises to Telstra exchanges, as distinct from the ‘Inter Exchange Network’ (IEN) which connects exchanges to each other.
Mr Considine is the Business Senior Lead in Field Services and has national responsibility across the optical fibre, copper wire, pits and duct network. This includes cable incident restoration, the fibre maintenance program and construction and installation of wideband services. He reports to Mr Cooper. He has been employed by Telstra for 24 years and from 1999 to 2010 was a Field Communications Technician, working on the copper then fibre network after obtaining fibre accreditation in 2007.
Mr De Blasio is the CAN Program Coordinator – Optic Fibre. He coordinates the repair and maintenance of optical fibre cable in the network and is responsible for the geographic area covering the eastern side of Victoria (including all of Melbourne), all of Tasmania and part of southern NSW. Mr De Blasio reports to Mr Considine. In his 38 years as a Telstra employee he has worked predominantly in optical fibre and copper cable jointing and maintenance roles.
Telstra also tendered by consent the Witness Statement of Emma Tullberg, attaching the Telecommunications Training Package ICT97 Technical & Call Centre Streams Volume 1 – General Information Assessment Guidelines and Qualifications dated January 2001 (2001 Curriculum Document), which provides details about AQF qualifications listed in the relevant CJDs.
Frequently, the witness evidence traversed subject matters addressed in the SOAF. I have considered this evidence as supplementary to the SOAF, given both parties led evidence of this nature, and neither party objected to its admissibility on the basis that it contradicted or qualified an agreed fact.
Each witness gave opinion evidence as to the complexity of the work of Mr Jayawardana and others. Telstra submitted that because its witnesses were not challenged on their opinions in cross examination, I should accept their evidence. I disagree that the evidence should be accepted on this basis. The issue of complexity was clearly disputed, and I am satisfied that the Telstra witnesses were able to, and did, answer Mr Jayawardana’s evidence on this issue. Mr Jayawardana and Mr Ellery tended to say that Mr Jayawardana’s work is complex, and the Telstra witnesses tended to say that his work is simple, or not complex, or that other work is more complex. Given the lack of independence of any of the witnesses, and their almost universal unwillingness to depart from the opinions that suited their case, I have generally given little weight to the opinion evidence. Where no evidence was led of the facts on which the opinion was based, I have generally given it no weight. Insofar as I have relied on opinion evidence, I considered the Telstra witnesses had relatively greater expertise, being more familiar with the relevant work and having performed the same or similar work themselves. I have also had regard to opinions Mr Jayawardana offered as to his own work. However I consider Mr Ellery had only limited relevant expertise based on his past research work.
Other than in respect of the opinion evidence, there were no issues with the credibility or reliability of the witness evidence.
THE OPTICAL FIBRE NETWORK COMPARED TO THE COPPER NETWORK
It was agreed that optical fibre is a medium to transmit information between two points by sending and receiving light wavelengths. A single optical fibre is slightly thicker than a strand of hair. In the Telstra network, optical fibres are used for three main connection types: the connection of customer premises equipment (communications equipment at customer premises) (CPE) to equipment at a Telstra exchange; to connect equipment within a Telstra exchange; and to connect Telstra exchanges to each other via the Inter Exchange Network (IEN). Mostly, optical fibres are individually coated in plastic then bundled inside of cables, which can hold up to 360, or less commonly 720 fibres. Cables may or may not be buried underground. Fibre Access Points (FAPs) are plastic cannisters installed throughout the network to provide access to cables. They are labelled to allow technicians to identify the relevant cable.
Mr Cooper said, and I accept, that in 1995, copper connected residential homes and a significant portion of enterprise customers to the network, with optical fibre used for larger scale connections, such as linking exchanges. Approximately 10% of the telecommunications network in Australia remains on copper, and Telstra still has approximately 1200 technicians working on copper technology, with approximately 600 on any given day. Mr Ellery, said, and I accept, that ‘circa 2000’ optical fibre was just beginning to expand into the network. The copper network comprised copper wire cables configured in pairs, with the capacity to send two phone lines over one pair of copper wires, in contrast to an optical fibre capable of carrying a very large number of lines.
Telstra contended that work on the copper network was in some respects more complex than work on the optic fibre network, whereas Mr Jayawardana contended that work on the optic fibre network was more complex than the copper network.
Mr Considine said working on the copper network involves complications that do not arise in fibre optic work. Copper cables are subject to electrical interference, whereas optic cables are not, and finding the source of this can be difficult and time consuming. In addition, older copper cables were not colour coded, making it more difficult to find the right pair. Further, locating a leak in gas-pressurised copper cables can be difficult, and involves the use of hydrogen gas and a hydrogen sensor to locate the fault, whereas for optic fibre, an automatic tool (OTDR) displays the fault location. He disagreed that work on the fibre network is more complex than the copper network.
Mr Jayawardana said that copper was obsolete and the fibre network is more advanced. Mr Jayawardana agreed that there were tools for fault finding and rectification available for fibre but said there were fault finding tools for the copper network too. He agreed that the tools for fibre had evolved over time. Mr Ellery said the network is equally complex now. Whilst there is no longer capacity for electromagnetic interference, there is other interference on the fibre network. He disagreed that higher problem solving skills were required on the copper network.
Notwithstanding that the expansion of the optical fibre network has involved technological advancement, I am not satisfied that work on it is inherently more complex. Further, I accept that complications arose on the copper network that do not arise with fibre, however I do not conclude that this makes work on the copper network inherently more complex. These general opinions do not assist in interpreting the CJDs and determining Mr Jayawardana’s classification level.
MR JAYAWARDANA’S WORK
The Melbourne Fibre Team
It was agreed that since 2013, Mr Jayawardana has worked in the Melbourne Fibre Team (MFT), which has approximately 16 technicians. The core role of the MFT is to perform repair and maintenance work on Telstra’s optical fibre network (Repair and Maintenance Work). This involves rectifying fibre faults. Since about mid-2021, the MFT’s work has expanded to improve the utilisation of its technicians, meaning technicians from the MFT can also be allocated to perform project work (Project Work), wideband work (Wideband Work) and basic inspection and maintenance work (General Inspection Work). The work of MFT technicians overwhelmingly consists of cabling work. They are primarily responsible for building or repairing fibre links between two points. MFT technicians may bolt on equipment at either end of a cable in accordance with a design, turn equipment on or off or plug/unplug a fibre link into a piece of equipment. However the configuration, activation, testing and troubleshooting of that equipment is not undertaken by MFT technicians.
Mr De Blasio said, and I accept, that of the 16 technicians in the MFT, around 10 (including Mr Jayawardana) mainly undertake Repair and Maintenance Work, with the remainder mainly performing Wideband Work. Mr Jayawardana described this group within the MFT as the ‘Fibre Maintenance Group’ (FMG), comprising around eight employees. Mr Jayawardana and Mr De Blasio both said, and I find, that Mr Jayawardana is one of only two CFW4 classified employees in the FMG, with the remaining employees (be it six or eight) classified as CFW5.
Mr Jayawardana’s role
It was agreed that Mr Jayawardana’s core role is to:
(a)Construct, repair and replace fibre optic cables in Telstra’s fibre network. This involves hauling, splicing and testing cables. It also requires filling in workbooks (for wideband and project work) and using fibre record databases;
(b)Install hardware (such as patch panels and trays) by bolting them on to another structure (such as a rack) in accordance with a design plan. Mr Jayawardana’s role is limited to physically affixing the hardware in the location specified in the design plan. He does not configure, activate or test any equipment or troubleshoot and rectify equipment faults; and
(c)Inspect pits, pipes, ducts, poles, ladders and payphones and clean payphones.
It was agreed that Mr Jayawardana is also rostered to perform Area Point of Contact (APOC) work on weekends on a rotating roster.
It was agreed that between 2021 and late 2023 Mr Jayawardana spent around 70 per cent of his work time undertaking Repair and Maintenance Work (and around 60 per cent of his time from late 2023 to February 2024). Between 2021 and late 2023, Mr Jayawardana spent about 13 per cent of his time on Project Work (and around 40 per cent from late 2023 to February 2024.) Between 2021 and late 2023, Mr Jayawardana spent about 9.5 per cent of his time on Wideband Work, which he ceased performing in May 2023. Between 2021 and late 2023, Mr Jayawardana spent about 7.5 per cent of his time on General Inspection Work, and did not subsequently undertake that work.
Repair and Maintenance Work
Identifying the location of a fault
It was agreed that the typical process when a fault on the fibre network is reported is that a technician from a different team identifies its approximate location, then notifies the Global Operations Centre (GOC) which then allocates it to a technician such as Mr Jayawardana. The technician may test the fibre with an ‘OTDR’ to determine or confirm the location of the fault. An OTDR is an automated tool that tests a fibre link and identifies the distance of any fault. To use it, the technician plugs in a fibre, selects the wavelength and presses a button. The OTDR then displays a line graph, showing if there is a fault and its location (as distance of the fault from the OTDR). Based on that distance, the technician can determine the approximate physical location of the fault.
Mr Jayawardana said he undertakes testing from the exchange to work out the distance of the fault and its location. To do so, he uses Net Maps[17] which shows where the cable is running, and ‘Vis Net’ or ‘Visio’ which is a line diagram from the fault to locate the closest FAP. Mr De Blasio said that Visio is no longer used by technicians as drawings are provided, but described Vis Net in similar terms to Mr Jayawardana. Mr De Blasio said that MFT technicians always re-test the cable with an OTDR to prove the location of the fault. He said this is largely automated however some manual settings such as the distance range need to be selected. To read the OTD, Mr De Blasio said a straight line represents normal working fibre, and a spike or a drop shows an ‘event’ at that location in the fibre. A fibre joint shows up as a small spike. A sharp drop represents a cut (or the end of the fibre link). A big spike could be an excessive bend. Mr De Blasio said a break was obvious but agreed it was not so obvious where there is a bad joint or a kink. The technician places a cursor on the spike or drop on the line diagram and the OTDR tells them the distance of the fault along the link. Mr Jayawardana’s evidence as to how to read the OTDR was similar to Mr De Blasio’s.
[17]The parties agreed that Net Maps is a database that produces a visual top-down view of Telstra’s physical assets including the fibre network, with fibre infrastructure overlayed in layers.
Based on this evidence I find that following the allocation of a fault by the GOC, locating the fault is work commonly undertaken by Mr Jayawardana using Net Maps, Vis Net and the OTDR, which allows the location of the fault on the network to be cross referenced with the approximate physical location of the fault. I find that whilst the OTDR is an automated tool, it requires manual input, and experience and judgment in interpreting its display and identifying which fibre ‘events’ are depicted by the display.
Options for rectifying the fault
It was agreed that to rectify the fault the technician travels to the location of the fault or to the nearest FAP and identifies the source of the fault. The fault can be fixed by either: straightening a kink in the fibre; replacing and ‘resplicing’ a damaged section of fibre; using a spare fibre; or installing a new cable. The process of joining two pieces of optical fibre (Splicing) involves: stripping off the cover with a hand tool; cleaning the fibre with solvent; putting a splice protector tube on one of the fibres and sliding it to one side; cutting the fibre with another hand tool; inserting two fibres to be spliced into a splicing machine and pressing a button. The machine automatically fuses the fibres, tests the splice and tells the technician whether the splice is good or bad. If the splice is bad, the process needs to be repeated. If the splice is good, the technician slides the splice protector over the splice and heats it within the same device, so it shrinks and covers the splice. Alternatively, if the damaged fibre is inaccessible, the technician can resplice the customer’s service onto a spare fibre. Spare fibres can be identified using a fibre record database. A handheld device called a fibre identifier detects whether there is traffic on a fibre listed in the database as vacant, as sometimes the database records are wrong.
It was agreed that if no spare fibre is available or a whole cable is cut or damaged, a whole section of cable may need to be cut and replaced by hauling in a new cable (a Cutover). ‘Hauling’ means physically transporting cable and inserting a length through a conduit between two access points, such as manholes or pits. External contractors are engaged if hauling cable beyond about 120m long is required. As a damaged cable is still partially functioning, a Cutover will typically involve service disruption to other customers. Accordingly, the technician needs to obtain GOC approval before performing a Cutover. Cutovers are done out of hours, and in the meantime, the technician may put in a temporary fix by running a temporary fibre above ground.
It was agreed that a range of other testing and diagnostic tools may be used by a technician including a light pen; video scope; an inline PON/GPON Meter (used to simultaneously test multiple wavelengths up and down fibre); and an ‘optical power meter and light source’ (an automated tool to measure signal loss or reduction in amplitude). A technician may also need to identify equipment and after consulting the GOC, turn off a piece of equipment, unplug the fibre, plug the fibre back in and turn the equipment back on. Once the repair is complete, the technician sends an email to another team identifying the work done, and that team updates the fibre databases.
Both Mr De Blasio and Mr Jayawardana said that the technician is also required to test the spliced joints with an OTDR from the exchange. Mr Jayawardana said this function used to be performed by employees in the exchange who have now been retrenched. Mr De Blasio said following that testing, the technician notifies the GOC of the completed repair, and the GOC performs a remote test to confirm the repair was successful. I find based on this evidence that Mr Jayawardana is also required to test a completed repair with an OTDR from the exchange.
Mr De Blasio agreed that after the fault has been fixed, administrative follow up work required of a technician could include: a police report; a red line markup report with a map; provision of details for a work order to the GOC; or provision of damage details and photos for Sherlock[18] so a bill can be prepared. I find based on this evidence that Mr Jayawardana may be required to perform work of this nature.
[18] A platform for recovery of damages from parties who damage Telstra cable.
Major fault work
It was agreed that the typical process for rectifying fibre faults, such as cut or damaged fibre, is followed regardless of the scale of the repair or maintenance job. The difference is that larger scale jobs are more time consuming, as more tests and splicing are required, but the nature of the work is the same.
Mr Jayawardana provided a small number of examples of major faults he had worked on, but said any fault could potentially be a major fault considering the customer traffic on each fibre. Mr De Blasio said that most faults are minor faults where only one or two fibres are damaged. Mr Considine said that Mr Jayawardana’s examples were more serious than a typical fibre fault. I find based on this evidence that part of Mr Jayawardana’s Repair and Maintenance Work is to rectify major faults, however most faults Mr Jayawardana is required to repair are not major faults.
Mr Jayawardana provided the example of a major fault in Bonang, New South Wales in October 2023 he attended with a colleague. He travelled six hours to find the site had no mobile reception including for local emergency services. He located the damage to a direct-buried cable in fading light, in bush land near a river crossing. He contacted Mr De Blasio to organise an excavator. He worked almost 26 hours to restore service to the town. Mr Jayawardana was required to determine the plan of work to restore services as quickly as possible, keep relevant departments informed and record details for paperwork. He was paid overtime for the work. Mr De Blasio described the Bonang incident as a ‘big one’. He agreed Mr Jayawardana had decided an excavator was required and contacted him and asked him to arrange the excavator. He agreed that otherwise, the complete job was done by Mr Jayawardana and his associate. Mr De Blasio also dealt with the GOC and Major Incident Management Team because the terrain was remote, there was no mobile reception and there was community isolation. Mr Considine said he became involved in the Bonang incident because the severity had hit a certain level and they established a communication group with the incident management team, the transmission team and the field team including the APOCs.
Both Mr Jayawardana and Mr De Blasio said that for major faults, additional personnel are arranged. Mr Jayawardana said he informs the GOC and his co-ordinator to arrange additional staff and sometimes civil contractors. Mr De Blasio said he will arrange for another crew, or contractors, to assist.
Accepting the typical process for optic fibre repair work applies to major faults, I find based on this evidence that Mr Jayawardana’s role includes determining the scope of the repair, repair plan and where necessary, staffing or contractor requirements. Further, I find that Telstra distinguishes between faults based on their severity in its internal processes, with escalated severity faults involving more senior staff and requiring communication between the field team and other internal groups.
It was agreed that major fault work may involve disruption to a very large number of customers and/or large geographic areas. Mr De Blasio said, and I find, that the difference is that large faults are more urgent as more customers are affected and they require more hours to fix.
Country fault work
Mr Jayawardana said he is required at times to undertake work in the country because country staff don’t have a full knowledge of testing and repairing of fibre faults. Most country staff are not able to test and create fibre workbooks, or splice to a certain tolerance so that it passes the tests. Mr De Blasio said that MFT technicians assist Victorian country staff from time to time as there are limited resources with splicing experience in country areas, and most country technicians cannot do splicing work. Mr Considine said MFT technicians are sometimes allocated faults in the country because country teams do not have dedicated fibre technicians, but generalists working on all aspects of the network. Hence, they are typically less experienced with fibre. I find based on the evidence of the three witnesses that as part of his Repair and Maintenance Work, Mr Jayawardana is sometimes allocated to faults in the country because he is a more experienced splicer than most country technicians, most of whom are generalists, not dedicated fibre technicians, and cannot do splicing work.
Mr Jayawardana said that whilst he still has access to the same testing equipment, maps and tools to see if a fibre is carrying traffic, locating a country fault can be more difficult due to inaccurate plans of what he sees in the field. In this case, Mr Jayawardana has to redesign as he goes in consultation with the designer as to the route the cable will take and the availability of fibres. The splicing is the same, but the cable is older and not as basic. Both Mr Considine and Mr De Blasio asserted that country work was no more complex than city work. However, their evidence did not address the basis of their opinion, or the specific matters raised in Mr Jayawardana’s evidence, and I have preferred Mr Jayawardana’s evidence. I find based on this that additional difficulties arise in country work. I conclude that dealing with inaccurate records, assisting with the redesign of the route and the need to work with older and different cable are matters which add complexity to Mr Jayawardana’s work.
Time frames for fault work
Mr Cooper and Mr Considine both said that service level agreements provide for the restoration of fibre faults in the metro area within 12 hours and in regional areas within 18 hours, with some exceptions. Mr Considine agreed that in some cases considerable penalties and compensation are payable if these timeframes are not met, but said most of those systems are be backed up so service can be continued. Mr Cooper said these timeframes are not an expectation on Mr Jayawardana but on the business. Mr De Blasio said Mr Jayawardana’s team is asked to try to meet the timeframes. He agreed that fixing optical fibre faults is high priority because fibre carries many customers’ data. Technicians are required to be available to repair fibre faults immediately, and drop other work to fix a fault.
Based on this evidence I find that Mr Jayawardana is required to complete fault work urgently and so far as is possible within the timeframes provided by service level agreements, due to the number of customers and amount of data each fibre carries. I preferred Mr De Blasio’s evidence as to the expectations on technicians regarding timing, given his relative proximity to the MFT as the co-ordinator, to Mr Cooper’s evidence on this issue.
Advances in technology and complexity of Repair and Maintenance Work
Mr Cooper said that over the last 30 years or so, there have been significant advances in the equipment and technology used for field work which have made the work of technicians less complex, including because less analysis is required. Mr Ellery disagreed that the advances of technology mean the work is less complicated.
Mr Cooper gave the example of the growth in the Remote Field Monitoring System (RFMS), which covers an increasing proportion of the network and automatically pinpoints the distance of a fibre fault, meaning the GOC can provide this to a technician. Mr Cooper’s evidence as to the RFMS did not address how Mr Jayawardana’s work would have been more complex in its absence. It does not alter my earlier findings regarding the requirements upon Mr Jayawardana to locate the fault.
Mr Cooper also gave the example of fibre splicing machine technology. The parties agreed that progressively over time, the process of splicing has become easier with modern equipment. Mr De Blasio also said that advances in the speed and ease of splicing made the work quicker. The Telstra witnesses described the previous process of manually lining up the fibres using a microscope, which is now largely automated. Mr Considine agreed that the process still involves stripping the plastic cover off the fibre, cleaning the fibre with solvent, using a protector tube, cleaving the fibre and inserting it in the machine which melts the cables together. I find on this evidence that the lining up and fusing of the fibre has become easier over time, making the work quicker, with the other aspects of the splicing process remaining unchanged.
Mr Cooper also said OTDRs are now smaller and more accurate compared to those used in the early 2000s, and readings can be taken by the press of a button. Mr De Blasio said that OTDR automation makes things easier than the earlier ODTR model. However, neither witness addressed in any detail how this made the process of fault diagnosis less complex.
Accepting that the process of splicing optical fibre is easier and quicker than it once was, I am otherwise not satisfied that the advances in technology relied on by Telstra make Mr Jayawardana’s Repair and Maintenance Work less complex.
Wideband Work
It was agreed that the Wideband Work undertaken by the MFT requires a technician to build a fibre link from point A to point B following a given path in accordance with a design, and commission the link by testing it, calling another group to activate the equipment, and completing required database entries. The building of the fibre link involves the same cabling tasks as Repair and Maintenance Work (hauling, testing and splicing fibre) along with three additional tasks. First, test results must be recorded in a ‘workbook’. Technicians are provided with template excel spreadsheets containing blank cells to be populated by performing the test and then typing the result into the corresponding cell. Formulas then automatically populate a column in the spreadsheet with a ‘pass’ or ‘fail’. Workbooks are prepared for new connections only (Wideband Work and Project Work), not for repairs on existing connections. The second additional task involves utilising databases for network inventory, confirming active fibre paths and booking activation appointments, however Mr Jayawardana has not accessed these databases for between one to two years. Thirdly, a MFT technician may install equipment at customer premises, by bolting the equipment onto a ‘Rack’ (a standard-size metal frame used to house communication equipment) at customer premises, plugging in the fibre, then calling a different team to activate the equipment.
It was agreed that the majority of Wideband Work is done by the Digital Fibre Services Team (DFST), a different business unit within Telstra. However, since July 2021, as part of Telstra’s expansion of the MFT’s work, Wideband Work on 5 of the 40 service types undertaken by the DFST has been allocated to MFT technicians. MFT technicians are allocated only one wideband task at a time, and approximately 6 of 16 MTF fibre technicians, not including Mr Jayawardana, perform exclusively Wideband Work. Mr Cooper said, and I find, that this arrangement involves only the lowest level wideband tasks, including fibre splicing, testing and building line systems, but not programming, customer interaction, organising contractors or civil works except some small hauling. I accept Mr Cooper’s evidence that this arrangement came about to better utilise technicians between faults and thus involves the simpler, single fibre services, meaning less customer disruption when technicians attend faults.
It was agreed that Mr Jayawardana has not performed Wideband Work since May 2023. Mr Jayawardana said that from mid-2021 he was part of the initial MFT group doing all the Wideband Work. He helped upskill newer staff. In May 2023, after he questioned his supervisor Mark Mays whether the upskilling work should be classified at level 5 or level 7, Mr Mays took Mr Jayawardana off Wideband Work. He did not refuse to do the work; the work was not provided to him. Mr De Blasio said that Wideband Work ceased being allocated to technicians who did not perform data base entry, however none of the Telstra witnesses had direct knowledge of why Mr Jayawardana was taken off Wideband Work. I find Mr Jayawardana ceased performing Wideband Work because Telstra stopped allocating it to him. Telstra’s reason for doing so is not a matter which arises for determination in this proceeding.
Project Work
Project Work refers to MFT work other than Repair and Maintenance Work and Wideband Work. A typical example of Project Work is installing a short length of cable within a building (tie cable) at an exchange. Other examples are installation of ‘patch panels’, an assembly containing ports into which cables plug in. Installing a patch panel means bolting it onto a rack in accordance with a design plan or working on a ‘link’ connecting point A to point B over a very long distance (eg 100km). Project Work also involves the population of workbooks. MFT technicians work to a design specifying the work required. An example of a project design which Mr Jayawardana was allocated to work on required the creation of a 72-fibre ‘tie cable’ between two points and identifying the location of the two points. Mr Jayawardana gave examples of sub racks which I accept he had installed. He said, and I accept, that Project Work also involves him sourcing the material for the project and liaising with other project staff.
Mr Jayawardana said that Project Work design plans are never 100 per cent accurate because the records are not always accurate. Accordingly, he must test if allocated fibres are available, and if not must find a new fibre path and contact the designer to update the job pack and records. Mr Considine agreed that there are instances where some of the plans are inaccurate or do not exist, because they haven't been captured properly when the lines were first built. When there is an inaccuracy on a wideband plan, the technician can call ‘Fibre Line’ who can advise alternative fibres and paths to try. Mr Considine said there is capacity for a technician to identify spare fibre themselves using ‘Multiman’ and ‘Tomahawk’ and suggest that to Fibre Line to hurry things up. Alternatively, the technician can allocate the work back to the delivery specialists via Mr Considine’s team to say it needs to go into ‘redesign’ for a site assessment path or another review. I find based on this evidence that Mr Jayawardana contributes to required redesigns by identifying alternative fibre paths using available tools, and it is beneficial if he does so.
Complexity - Wideband Work/Project Work v Repair and Maintenance Work
Mr Cooper said the Project Work and Wideband Work performed by Mr Jayawardana is no more complex than his Repair and Maintenance Work and is in some respects simpler because the technicians simply follow a plan in building a fibre link and do not need to locate a fault or select a repair solution. Further, it is not subject to the same time pressures as Repair and Maintenance Work. Mr De Blasio also said in some respects Project Work and Wideband Work is simpler because technicians work to a design plan, and no diagnostic process is required to locate a fault or determine a solution. Fault work restores live fibres, an interruption to which disrupts a customer. Repair and Maintenance Work is thus more time sensitive.
Mr De Blasio said Project Work and Wideband Work are very similar to Repair and Maintenance Work and are typically straightforward, but because the projects are larger scale, populating the workbook is time consuming and sometimes takes longer than building the link. It is tedious but not complicated. Mr Jayawardana disagreed, saying it had become extremely complex, as the function which automatically populated the fibre workbook with FAP locations now has to be done manually.
Having accepted that the Wideband Work of the Fibre Maintenance Technicians are the simpler services or lower level tasks, I conclude that this work is no more complex than Repair and Maintenance work. I also conclude that Project Work, as a class of work, is no more complex than Repair and Maintenance work, as a class of work. The cabling tasks required for each are the same.
However, Mr Jayawardana’s role as a technician involves, or has involved, performing all three types of work as required by Telstra. Project Work and Wideband Work involve the different functions of installation of customer equipment and arranging activation, working to a design plan (including participating in required redesigns) and population of voluminous data into workbooks. These functions require the utilisation of qualitatively different skills than those used in Repair and Maintenance Work. Whilst I accept the categories of work are in comparison no more complex than Repair and Maintenance Work, I conclude that the addition of these qualitatively different functions adds complexity to Mr Jayawardana’s role overall.
General Inspection Work
It was agreed that Mr Jayawardana performs basic inspection and maintenance work, including inspection of pits, pipes, ducts, poles, payphones and payphone cleaning.
Area Point of Contact (APOC) Work
It was agreed that as part of his role as CAN Program Coordinator, Mr De Blasio acts as APOC for the eastern side of Victoria (including all of Melbourne), all of Tasmania and part of southern NSW from Monday until 4pm Friday each week. Two technicians from the MFT, including Mr Jayawardana, are allocated to be APOCs on weekends (starting from 4pm on Friday), on a rotating roster. The APOC is responsible for allocating faults to a fibre technician within the region. If a fault arises on the weekend, an automated system calls the first APOC from the list notifying a fault. Once the APOC accepts the fault, the system emails the fault details. In the case of a major fault, a person from the GOC might also telephone to highlight the urgency of the repair. The APOC fills out a webform to create a work ‘ticket’ in the ’Promise’ database or contacts another team to do so. The APOC attends the fault if it is within the Victorian urban area or otherwise allocates the fault to an available technician in country areas. Typically, the APOC repairs the fault themselves, however if it is too far away or the APOC cannot attend, they must find an available technician.
Based on Mr Jayawardana’s uncontested evidence I find that he performs APOC work on a rolling roster every four weeks. He receives an ‘immediate on call’ allowance for the time he is rostered to perform the APOC work and receives overtime on top of the allowance if required to attend to a fault. The allowance he receives is an ‘essential customer servicing allowance’ of about $600 for the weekend or $9 per hour pursuant to cl 67.4 of the 2022 Agreement for the requirement to be immediately available to undertake work. Mr De Blasio receives the same allowance for performing APOC work. It was not in issue that Mr Jayawardana performed this work at all relevant times over the period to which his claim relates.
Mr De Blasio and Mr Considine said APOC is not a role in itself, but is a type of work or responsibility, which involves being on call to allocate technicians to faults. Mr Considine said being weekday APOC is not Mr De Blasio’s role but is one of the functions of his role. It was put to Mr Jayawardana that this function was not part of his core role, with which he disagreed. I find on this evidence that being the APOC is a function, type of work or responsibility of both the Coordinator role and Mr Jayawardana’s role.
Mr De Blasio distinguished his APOC responsibilities from those of Mr Jayawardana as he does not perform field work but allocates technicians to do so. Mr Jayawardana said he also allocates technicians to attend faults in country NSW and Tasmania. I find based on this evidence that as APOC, Mr Jayawardana allocates field work to other technicians when he cannot physically attend to fix a fault.
Mr De Blasio said that the weekend APOC does not deal with the work orders required after a temporary fix, which often involve arranging an external contractor, nor do they sign off on repair advices. Mr Jayawardana said that if he is required to undertake a temporary fix, he is required to identify the work required to complete a permanent fix, create a Map (Red Line Mark-up) of that work and complete all paperwork for Mr De Blasio to then complete the work order. I find based on this evidence that as APOC, Mr Jayawardana is not required to prepare work orders but is required to complete preparatory paperwork.
Supervision, training and work performance
It was uncontested that Mr Jayawardana usually works in pairs with another technician and usually works unsupervised, but does not have any direct reports. I find, based on Mr Jayawardana’s evidence that whoever is onsite first usually takes charge of the job.
It was uncontested that Mr Jayawardana does not hold any formal or official training role. I find, based on Mr Considine’s evidence, that formal fibre training and accreditation are conducted by external training providers, with five-day optical fibre jointing classroom training covering splicing, testing and OTDRs and an additional two-day course in respect of licence accreditation. Mr Jayawardana said he has trained and supervised trainees and other technical staff at a CFW4 and CFW5 level, which involves showing other staff how to undertake particular tasks. Mr De Blasio said that where Mr Jayawardana works with a less experienced technician he may demonstrate how to do something, provide tips or show them the ropes, as a part of teamwork. I find based on this evidence that Mr Jayawardana provides informal ‘on the job’ training and supervision to less experienced technicians, including those classified as CFW5. The difference in the evidence appeared to be no more than semantics.
There was no dispute that Mr Jayawardana is good at his job. As Mr De Blasio said, he is a good and reliable worker who takes pride in his work, performs neatly done builds, is a team player and his ‘go-to’ man. The performance reviews Mr Jayawardana relied on assessed him as rating between three and five with the most recent rating being four, in 2022-23 by his manager Mr Mays, who states his performance has been ‘commendable and deserving of recognition.’ I am satisfied based on this, and his uncontested evidence as to the rating system, that this is a rating of above competent.
Parts of the network on which Mr Jayawardana works
It was uncontested that Mr Jayawardana works across three different parts of the network, being the CAN, the IEN and within Exchanges.
Both Mr Cooper and Mr Considine said, there was no difference in the process or tasks involved in diagnosing or repairing a fault or undertaking Wideband Work whether it occurs on the CAN, the IEN or in respect of tie cabling. Mr Considine also said that the fibre in a P1 (priority) Exchange is the same, the same type of connection exists between fibres, and agreed that the MFT works on cables between P1 exchanges. Mr Ellery agreed the nature of fault work doesn’t change whether it is between exchanges or between the exchange and the customer, saying ‘fibre is fibre’. Mr Jayawardana agreed that the process of splicing a fibre is the same. I find based on this evidence that the nature of the tasks required with respect to fibre optic cable are the same on each part of the network.
However, Mr Considine also said that working on the core network in P1 (priority) Exchanges was an example of the ‘more complex wideband work’ undertaken by the DFST, and distinguished between ‘P1 techs’ and MFT technicians work on this basis. However, Mr Considine did not articulate why this work is more complex. The only specific evidence as to what work ‘P1 techs’ undertake in a P1 Exchange was Mr Considine’s evidence that ‘patching’ (splicing a service onto another fibre) occurs where the network does not switch automatically from a faulty link. It was not in dispute that patching was an option available to Mr Jayawardana for rectifying a cable fault. Telstra submitted that the effect of Mr Considine’s evidence was that in addition to the less complicated work Mr Jayawardana does, it can be assumed there is work done in P1 Exchanges that is inherently complicated, like that performed by the DFST. I do not consider I can make this assumption on the above evidence. It does not alter my finding that the nature of cabling work is the same on each part of the network. However, I find based on this evidence that Telstra distinguishes the work undertaken in a P1 Exchange from work undertaken elsewhere on the network, notwithstanding that the nature of the cabling work is the same.[19]
[19]I have considered the complexity of the work of the DFST more generally below.
Both Mr Jayawardana and Mr Ellery said in effect that the impact of fault work on the IEN was more significant than the impact of fault work on the CAN. Mr Jayawardana said there was a difference between working on the CAN and the IEN because in the IEN, one fibre can run thousands of customers on it, including emergency services, and you need to know what you are doing. Mr Ellery also said that as you get closer to the customer there are less fibres, the volume changes. Mr Cooper said the impact of a fault on an IEN, tie cable or CAN is pretty much the same. All will potentially have a customer impact, however there is a difference in the number of customers impacted as a smaller cable will have less customers. Mr Considine said there are sometimes multiple links between P1 exchanges, and for the vast majority of IEN cable, so if one cable is faulty the connection can be switched to ensure continuity of service for the important links in that sense. He said that switching to an alternative link is an automatic process in a lot of cases, which means nil or very little customer impact, or alternatively it needs to be patched by a technician.
I find based on the evidence of Mr Jayawardana and Mr Ellery that as a general proposition, fibres and cables on the IEN are likely to carry a higher volume of customers, and that the closer a cable or fibre is to the customer, the less traffic there is likely to be. This was in effect acknowledged by Mr Cooper. I did not consider Mr Cooper’s conclusion that customer impact is the same despite more customers being affected to be persuasive. I find that where more customers are affected, the customer impact will be greater. However, I find based on Mr Considine’s evidence that this impact is minimised where there are multiple links between P1 exchanges or on the IEN.
MR JAYAWARDANA’S MAJOR AND SUBSTANTIAL EMPLOYMENT
Consistent with the principles set out paragraph 16, Mr Jayawardana’s classification is to be determined with reference to his major and substantial employment, principal purpose or primary function. This is a question of fact, to be determined by the duties of his position, the circumstances of his employment, the time spent performing particular tasks as well as the quality of different types of work. Mr Jayawardana submitted that all his job functions other than pole inspection work fall within the description of his major and substantial employment.[20] Telstra submitted that the principal function or substantial purpose of Mr Jayawardana's employment was to repair cable by finding faults, splicing and testing, and the Court should apply the classification appropriate to that work, regardless of whether occasional activities fell outside that work.
[20]Mr Jayawardana abandoned a submission that his classification should be assessed based on the highest level of work he performed.
To assess Mr Jayawardana’s major and substantial employment I have considered both the terms of Mr Jayawardana’s contract and the work he has been required to and has actually performed, including both the proportion of the time and the qualitative nature of that work.
Mr Jayawardana’s 2022 Contract provides that he is employed as a Service Technician, and states ‘your role will be to perform the same or substantially the same work … that you performed’ for the previous corporate entity.[21] Accordingly, the 2022 Contract defines Mr Jayawardana’s role broadly, by reference to the full range of work he was actually performing at the relevant time, without exclusion. These are the duties actually attached to his position, and what he is employed to do.[22]
[21]The 2022 Contract also contains a clause permitting changes to Mr Jayawardana’s role. I have not considered this to be relevant to an assessment of the classification of his current role, as changes made pursuant to that clause may also entail a change of classification.
[22]As described in Davies v Carnachan Family Trust Pty Ltd (2018) FCCA 45, [14]. This does not extend to work performed by Mr Jayawardana whilst on secondment, which I consider falls outside the scope of his role.
Turning then to a quantitative and qualitative assessment of that work. It was not in dispute that from mid-2021 onwards, Mr Jayawardana could be required by Telstra, and was so required, to perform functions across all the categories of ‘work’ earlier described. This is reflective of the decision made by Telstra to improve the utilisation of technicians from the MFT. I find based on the time breakdown set out at paragraph 39 that the proportion of time spent on each of the categories of work was material, and more than occasional. Even Mr Jayawardana’s basic inspection and maintenance work (with the lowest time percentage) equates on average to approximately half a day every fortnight. Further, because of the inevitable fluctuation of the type of work required of Mr Jayawardana, different forms of work were more or less prevalent at different times. I consider Mr Jayawardana’s major and substantial employment includes each of these forms of work. However, I would exclude Wideband Work after May 2023, as I infer that since that time, Telstra no longer requires Mr Jayawardana to perform that work.
It was agreed that Mr Jayawardana’s ‘core role’ is to construct, repair and replace fibre optic cables in Telstra’s fibre network, including hauling, splicing and testing cables, filling in workbooks and using fibre record databases; installation of hardware such as patch panels and trays; and basic inspection and maintenance work. It was not in dispute that he performed this work across all parts of the network, including the CAN, IEN and within Exchanges.
Functions which are not in the agreed ‘core role’ list but which the evidence demonstrates Mr Jayawardana also performs include:
(a)Repair and Maintenance Work: fault location and diagnosis; determining the method of repair to be executed; determining the resource requirements for the repair; liaison with other groups within Telstra depending on the escalation level of a fault.
(b)Project Work: working to a design plan and contributing to redesign where required; and
(c)Wideband Work: installation of customer equipment and arranging activation of equipment.
I find that each of the functions described in paragraphs 90 and 91 form part of Mr Jayawardana’s major and substantial employment, as the functions described in paragraph 91 arise in the context of, and in a qualitative sense are necessary incidents of, the categories of work and the agreed core functions. Similarly, accepting that the time Mr Jayawardana spends on major fault work and country fault work is limited, I conclude that this work is part of Mr Jayawardana’s major and substantial employment. Performing this work is inherent to Mr Jayawardana’s Repair and Maintenance Work. The FMG is responsible for rectifying fibre faults, and Mr Jayawardana is required to attend the full range of faults allocated to him, whether they are major faults or located in the country.
I further conclude that Mr Jayawardana’s major and substantial employment also includes his APOC work given my finding that it is a function of his role, both in fact and pursuant to his contract. It is a necessary function, he performs it regularly, and as it is a 24-hour function, the proportion of his work time it makes up is at least comparable to the other categories of work identified. The fact that it is undertaken outside normal hours or that Mr Jayawardana receives an immediate recall allowance for this work (along with overtime when required to work) do not derogate from this conclusion.
WORK AND CLASSIFICATION OF OTHER CFW EMPLOYEES
In contrast to the detailed evidence as to Mr Jayawardana’s work, the evidence as to the broader range of functions, duties and roles covered by the CFW stream, within which to contextualise Mr Jayawardana’s work, was limited to other MFT work, employees in the DFST and to the witnesses themselves.
DFST employees
It was agreed that the DFST comprises about 140–150 technicians who are mostly classified at CFW5, with some CFW7 and CFW4 technicians. The DFST performs wideband work across approximately 40 service types. DFST technicians deal directly with Wideband Delivery Specialists and manage between 10 and 12 orders to completion at a time. This includes confirming appointments with customers, booking activation appointments or “cutovers” with the required workforce and coordinating inductions to secure sites. They then complete the required physical work on each order and update databases. DFST technicians are responsible for:
(a)end to end management and coordination of multiple orders at a time, including resolving design and scope issues, optimising resources and consolidating infrastructure.
(b)Managing resources, including engaging with other work groups and scheduling install dates with customers and technicians.
(c)Installation and commission (activation) of equipment and fibre cabling. This includes making IPMAN/SMNG bookings through the Wideband Service Activation team who are accountable for activating the service and testing.
(d)Stakeholder management, including scheduling dates for installation in direct consultation with the programming team, customer and technicians, liaising with InfraCo Service Delivery Leads (project coordinators), and managing design changes, ensuring installations comply to design standards.
(e)Using Telstra’s Ideal system, which is a work basket dispatch/order management system.
Mr Considine said, and I find, that he manages a team of three ‘wideband coordinators’ who are responsible for: managing the DFST work; dealing directly with Wideband Delivery Specialists; providing stakeholder updates and management; task coordination; resource management; and managing customer appointments.
Mr Cooper said, and I find, that the additional functions of the DFST are performed by CFW5 and CFW7 employees, not CFW4 employees. He said a CFW5 employee in the DFST is required to liaise directly with customers for appointments, make IPMAN/SMNG bookings, provide project coordinators with updates and use the Ideal system. These are not duties performed by a CFW4 technician or by Mr Jayawardana. Further, the CFW5 and CFW7 employees in the DFST do their own dispatching, customer interaction and organise support between themselves, whereas the wideband work of the MFT is just building the line system, splicing and jointing in the street, potentially connecting up a box in a customer's premises and getting another part of Telstra to commission and activate it.
Mr Cooper said, and I find, that in respect of wideband programs, the DFST liaises directly with Service Delivery Leads (program owners) for example in respect of designers, whereas the MFT liaise with one of the coordinators in Mr Cooper’s team who does that interaction for them, with the MFT just doing the physical street work and connecting the service.
Complexity - DFST Wideband Work v MFT Wideband Work
Mr Cooper said the DFST Wideband Work is more complex than the MFT Wideband Work. For the most part I accept this evidence, on which Mr Cooper was not challenged.
I find that the Wideband Work of CFW5 and CFW7 employees in the DFST involves the following additional complexities compared to the Wideband Work of the MFT:
(a)Undertaking a wider range of Wideband Work than the MFT: whilst there was no direct evidence as to what features of the other wideband work made it more complex, I accept the requirement to work across a larger range of service types in itself adds to the complexity of the role, noting my earlier finding that there is no difference in the physical cabling work required irrespective of the context;
(b)Managing multiple wideband orders at a time: I accept that managing multiple orders at a time, rather than one, adds to the complexity of the role;
(c)Direct customer liaison: I accept that liaising directly with customers involves the exercise of a qualitatively different set of skills to the technical skills otherwise associated with the role and adds to the complexity of the role accordingly;
(d)Coordination of secure site inductions: this is not a function required of the MFT in undertaking Wideband Work and I accept that it adds complexity to the role;
(e)Making IPMAN/SMNG bookings and use the Ideal system: I accept that the use of additional technology platforms adds to the complexity of the role; and
(f)Liaising directly with Service Delivery Leads, resolving design and scope issues, managing design changes and ensuring installations comply to design standards: I accept that more direct engagement with Service Delivery Leads (rather than through a coordinator) may add to the complexity of the role. However, I am not satisfied that ‘ensuring installations comply to design standards’ involves anything additional to the work Mr Jayawardana undertakes when he builds a Wideband link in compliance with a design.
Other witnesses
I find on Mr De Blasio’s uncontested evidence that his role is classified as CFW7 and his responsibilities include: arranging and scheduling work orders; communicating with stakeholders including customers and entities; allocating and scheduling work; arranging for external contractors where required; ensuring required paperwork and databases are correctly completed by technicians; recording completed job details via SharePoint (staff also have access to the SharePoint document and are able to update it); doing financials for faults and ensuring costs are captured; submitting FAPs for approval and assisting with implementing new systems, processes and programs.
The CFW2 and CFW3 CJDs were not in evidence. Some witnesses gave evidence of having been employed in these classifications however I did not consider this evidence sufficient to form a view as to the work covered by them.
Other MFT Work
Mr Jayawardana gave uncontested evidence that he performs the same work as all the other CFW5 employees in the FMG. The SOAF does not distinguish between the work of Mr Jayawardana and other technicians in the MFT. The Telstra witnesses did not address why employees performing the same work as Mr Jayawardana in the FMG are classified at CFW5, other than Mr Cooper’s evidence referring in a non-specific way to legacy arrangements. Telstra submitted that it was not open to conclude that the work of other employees is relevantly the same as Mr Jayawardana, having not heard evidence from those other employees. I consider the evidence I have referred to is sufficient, and I find that Telstra currently classifies all but two employees who perform the same work as Mr Jayawardana in the FMG as CFW5 employees.
Mr De Blasio said in cross examination that from 2007 to 2012, he was in the same team as Mr Jayawardana doing the same work that Mr Jayawardana is now doing. He was classified as a CFW4 until, without application, he and around 14 others in the team were ‘given’ the CFW5 classification. When re-examined on this evidence, he said developments in technology since that time in the speed and ease of splicing made the work quicker, helping those that undertake the work. Telstra submitted based on this evidence that it was not open to conclude that Mr De Blasio was performing the same work as Mr Jayawardana, as there may have been changes in technology impacting on the complexity of the work. However, I did not understand Mr De Blasio to be resiling from his clear evidence that the work he was performing was the same as Mr Jayawardana’s, albeit that splicing technology advances have helped by making it quicker. I find that in 2012, Telstra reclassified about 14 staff in the FMG from CFW4 to CFW5, including Mr De Blasio, who was doing the same work as Mr Jayawardana.
Mr Jayawardana said CFW7 technicians in the FMG had been retrenched, with remaining staff now doing their work (including testing from the exchange). In respect of these employees, I preferred the more detailed evidence of Mr De Blasio, and I find based on this evidence that the group previously had CFW7 technicians, retrenched about 10 years ago, who had previously travelled across Australia performing highly specialised Polarization Mode Dispersion and Chromatic Mode Dispersion testing and kept their CFW7 classification on a grandfathered basis. Only the more basic parts of the work they did are now performed by current staff, being standard fibre testing and workbooks.
Relevance of the classification levels of other employees
Mr Jayawardana submitted that the Court can presume that the other FMG employees performing the same work as Mr Jayawardana were correctly classified by Telstra as CFW5 employees. Telstra submitted that there may be commercial or industrial reasons for an employer classifying other employees performing the same or similar work at a higher level, such as rewarding valued employees, recognising service or seeking to retain workers in a competitive environment. Further, the proper classification of Mr Jayawardana is an objective question for the Court, to be determined by applying the proper construction of the CJDs to the findings of fact about the nature and complexity of his work, not with regard to the classification of the other fibre maintenance technicians in the MFT as CFW5.
Telstra submitted that the Installer/Repairer CFW4 classification extends to repair and maintenance work on the IEN, notwithstanding that the typical function refers only to the CAN, on the basis of the broad description of the job purpose, because the typical functions do not exclusively describe the functions of the role, and because the other typical functions extend beyond the CAN, such as the reference to ‘diagnostic and programming of service and networks in the field’ and ‘board changes’ referring to exchange-based work. Mr Jayawardana submitted that because the CJD does not refer specifically to the IEN, it does not extend to work on the IEN, whereas the Installer/Repairer CFW5 function extends to the IEN.
In contrast to the CAN Infrastructure Build CJD, there is no overriding restriction present in the CFW4 CJD job purpose – primary role which confines it to work on the CAN. It applies to ‘the full range of (relevant) functions associated to telecommunications products and services.’ Accordingly, I consider this CJD is not confined to the CAN and extends to work across the network including the IEN. In addition, whilst it does not directly refer to the IEN in the typical functions, those functions are not limited to the CAN and in any event are not an exclusive statement of the work of the role. However, despite this, there is a clear restriction in the text of the typical function relating to repair and maintenance which confines it to the CAN. I consider that this restriction must be given some meaning in a context where: firstly, none of the other typical functions include the restriction; secondly, the work covered by the other CFW4 CJD is limited to the CAN; and thirdly, given the distinction made in the 2022 Agreement description of the CFW workstream. Having regard to these contextual factors, so far as repair and maintenance of the network is concerned, I conclude that the typical function of the CFW4 Installer/Repairer role describes work on the CAN.
The CFW5 CJD, in contrast, clearly applies to both the CAN and the IEN, as it specifically refers to both. However, it applies to repair of ‘complex and difficult CAN transmission and interexchange network faults (ESD).’ Telstra submitted that ‘ESD’ is generally reflective of complexity, and there was no evidence Mr Jayawardana was called in to ‘troubleshoot’ difficult faults. Mr Jayawardana submitted that the evidence demonstrates he works on complex faults.
There are two ways of reading the CFW5 typical function. On a proper grammatical reading, the qualifier ‘complex and difficult’ applies to faults on both the CAN and IEN. However, the CAN Infrastructure Build CFW4 is confined to work on the CAN, and the repair and maintenance typical function of Installer/Repairer CFW4 also describes work on the CAN. Accordingly, for the first time ascending up the classifications, repair of the IEN appears expressly as a typical function in the CFW5 CJD. Given this context, the alternative, grammatically incorrect, reading of the CFW5 typical function is that it applies to complex and difficult faults on the CAN (thus distinguishing it from the CFW4 repair and maintenance functions), as well as faults on the IEN (not qualified by ‘complex and difficult’). I consider on balance that this is the better interpretation. Otherwise, none of the CJDs expressly contain non-complex repair work on the IEN as a typical function. I consider this interpretation best applies the purposive approach to interpretation referred to in the extract from Workpac[44] cited in Target,[45] recognising the practical expression of intention by the industrial parties rather than careful drafting. If this interpretation is correct, I consider it clear that Mr Jayawardana’s fault repair work is best described by the CFW5 descriptor and not adequately described by the CFW4 descriptor, because his repair work extends beyond the CAN and includes the IEN.
[44]Workpac v Skene (2018) 264 FCR 536; 280 IR 191, [197] (Tracey, Bromberg and Rangiah JJ).
[45](2023) 324 IR 304; [2023] FCAFC 66, [8].
However, even if the alternative, grammatically correct reading of the CFW5 typical function is adopted, I conclude that Mr Jayawardana’s role requires him to repair complex and difficult CAN transmission and interexchange network faults, as described in the CFW5 CJD. I have found that major fault work and country fault work are part of Mr Jayawardana’s major and substantial employment. Mr Jayawardana is allocated country work because he is a more experienced splicer than country technicians, and additional difficulties arise with country work arise due to inaccurate records, assisting with redesign and working with older and difficult cables, which add complexity. Major faults are escalated within Telstra due to their severity, may involve disruption to large numbers of customers and are more urgent. As far as possible faults must be repaired within the applicable time frames. On the evidence before me, based on the factors I have identified, I find that these are the most complex fibre optic cable faults, and Mr Jayawardana (and the MFT) are responsible for rectifying them.
In assessing the complexity of faults, I again have had regard to the relative ascending complexity in the CJDs. The CFW7 repair and maintenance function is clearly set apart from the equivalent functions in the other CJDs by its reference to ‘highly specialist’ and ‘complete’ repair and maintenance of network and service affecting faults. Despite the absence of evidence of more complex fibre optic cable faults than those referred to above, I nonetheless conclude that the work undertaken by Mr Jayawardana and the MFT falls short of the description of ‘highly specialist.’
Other typical functions
I conclude that two of three additional ‘typical functions’ specified in each of the CFW4 and CFW5 CJDs Installer/Repairer CJD (relating to the subject matters of small and large Pair Gain Systems/Customer Radio and non-network interference and network interference work involving switches and transmission) are not relevant to determining Mr Jayawardana’s classification as they primarily relate to the copper network. The evidence does not demonstrate how they translate to the fibre network and Mr Jayawardana does not perform work of the nature described in either CJD.
I find that Mr Jayawardana’s work cleaning payphones is encompassed by the remaining typical function in the CFW4 Installer/Repairer role. I find that his work installing exchange cards is encompassed by the remaining typical function in the CFW5 Installer/Repairer CJD.
Desirable experience and attributes
I conclude in respect of items (a) to (e) in paragraph 170 above that Mr Jayawardana meets the more onerous requirements of the CFW5 descriptor. I take account of: his performance reviews from his managers; his capacity to take charge of a job when he is paired with another CFW5 employee; his informal on the job training and supervision of less experienced technicians; and Mr De Blasio’s assessment of his work. The years of experience described in paragraph 170(c) relate to an employee at the top of the level. As at 30 January 2019, Mr Jayawardana had six years’ experience working in the FMG in the MFT and I am satisfied accordingly had the requisite experience working in the functional area of repair and maintenance of the network, including repair of faults on the CAN and IEN, prior to the period to which his claim relates. As to paragraph 170 (f), the evidence does not establish what a ‘data product’ or ‘basic data product’ is, and I have accordingly not had regard to it.
General complexity of the work
Telstra submitted that the CJDs demonstrate a relative increase in complexity, and that the Court should have regard to this general notion of complexity notwithstanding that many specific aspects of the CJDs largely describe the copper network. Mr Jayawardana did not dispute this approach. I conclude that it is necessary to have regard to general notions of complexity in considering the CJD applicable to Mr Jayawardana.
Telstra submitted that the work of the CFW5 DFST technicians is more complex than Mr Jayawardana’s role, meaning Mr Jayawardana is appropriately classified at CFW4. Telstra submitted that the complexity of the DFST technician’s role arises from the number of responsibilities and complexities in effecting a fibre link, such as the range of work, the number of orders being managed at one time and design and scope issues. Mr Jayawardana submitted that the DFST technicians are doing the same or no more complex work than the Fibre Maintenance work he undertakes, noting the potentially wide customer impact of Mr Jayawardana’s fault repair work and the consequent skills he requires being at a higher level.
I have found that the Wideband Work and the Project Work of the MFT is no more complex than the Repair and Maintenance Work, however the addition of qualitatively different tasks associated with performing all three types of work adds complexity to Mr Jayawardana’s role. I have also found that the Wideband Work of the DFST is more complex than the Wideband Work of the MFT.
However, assessing complexity in this general sense requires an assessment of Mr Jayawardana’s major and substantial employment as a whole, compared to the work of other employees within the CFW classification structure. I have already found that there are no distinguishing features, therefore no greater complexity between the work performed by the CFW5 employees in the FMG and Mr Jayawardana, and that the most complex work within that team is performed by CFW5 employees.
The other relevant comparison available on the evidence is with the CFW5 DFST technicians. The FST perform most of the Wideband Work. Wideband Work (in the context of the MFT undertaking it) is described as the building of a fibre link from point A to point B following a given path, in accordance with a design, involving the same cabling tasks as the repair and maintenance work (hauling, testing and splicing fibre). It was agreed that DFST technicians ‘complete the required physical work’ on each order. I understand this to mean that DFST technicians undertake the cabling work to construct the wideband links on the services for which they are responsible. Accepting that external contractors are used for hauling cable beyond 120 metres in length, and MFT technicians are used for 5 of 40 service types, I infer that DFST technicians perform the remaining cabling work. There was no evidence that the cabling work performed by DFST technicians is any more complex than the cabling work undertaken by Mr Jayawardana. The evidence as to the more complex work of DFST technicians focused on the tasks DFST technicians perform additional to cabling work.
Beyond cabling work, I have found that additional complexities of a DFST technician role compared to Mr Jayawardana’s role include: being responsible for multiple orders at a time; being responsible for work across a greater range of service types; liaising directly with customers; liaising directly with service delivery leads and participating more significantly in the design process; and coordination of secure site inductions.
However, I was not satisfied that compliance with design standards by DFST technicians involves more complexity than Mr Jayawardana’s work in building a Wideband link in compliance with a design. I am similarly not satisfied of this in respect of Mr Jayawardana’s compliance with designs in his Project Work.
Whilst it is the case that DFST technicians are required to make IPMAN/SMNG bookings and use the Ideal system and Mr Jayawardana is not, there is no evidence that the booking systems used by the DFST to arrange activation of the equipment by another team are any more complex than the systems Mr Jayawardana uses to book the activation of customer equipment he installs. Also, whilst Mr Jayawardana does not himself activate equipment, the SOAF states that DFST technicians activate equipment by making bookings through another team accountable for activating the service, and I find accordingly that DFST technicians similarly do not activate equipment.
It is unclear what is meant by DFST technicians ‘optimising resources,’ ‘managing resources’ and ‘consolidating infrastructure’ or by Mr Cooper’s evidence that DFST technicians ‘organise support between themselves.’ The evidence does not establish in what way this is qualitatively different to the work Mr Jayawardana does in ascertaining the resource requirements for a fault repair. Further, accepting DFST technicians are required to engage with each other and various other groups in performing their work, I am not satisfied there is any greater complexity in this engagement than Mr Jayawardana’s engagement with other technicians and groups in his fault repair work.
I have accepted that for DFST technicians, performing work across 40 service types adds to the complexity of the role. Mr Jayawardana performs, or has performed, work across the functional areas of Repair and Maintenance Work, Project Work, Wideband Work and APOC Work. I have found that working across functions beyond Repair and Maintenance Work involves the utilisation of qualitatively different skills by Mr Jayawardana, including installation and arranging of activation of CPE, following design plans, participating in required redesigns and voluminous data entry. In addition, his APOC work involves the qualitatively different skills.
Further, the effect of Mr Cooper and Mr De Blasio’s evidence that the Wideband Work of the MFT was less complex than its Repair and Maintenance Work involved a concession that the absence of a design plan for fault repair work, and the time sensitivity required to complete fault repair work in light of the customer impact are factors which contribute to the complexity of the Repair and Maintenance Work undertaken by Mr Jayawardana. Based on this evidence, I find that the following matters, which are not features of the work of a DFST technician, contribute to the complexity of Mr Jayawardana’s role:
(a)Locating and diagnosing the nature of the fibre fault;
(b)Identifying and executing the plan to rectify the fault, in the absence of a design plan; and
(c)The customer impact and thus time sensitivity required to complete the fault work.
In addition, I find that Mr Jayawardana’s APOC function, including the allocation of work to other technicians and the administrative work associated with doing so, as well as the requirement that Mr Jayawardana undertake country work which existing ‘generalist’ technicians are not able to perform, contribute to the complexity of Mr Jayawardana’s role and are not features of the DFST technicians’ role.
Finally, I find on Mr Considine’s evidence that there are three wideband coordinators who manage the DFST work, from which I infer that the CFW5 DFST technicians’ work is coordinated, as Mr De Blasio coordinates the work of the MFT technicians. Considering this and each of the above matters, I accept there are some aspects of the DFST technicians’ role that are more complex than Mr Jayawardana’s role. However, there are also some aspects of Mr Jayawardana’s role that are more complex than the work of a DFST technician. I conclude, based on the analysis above, that there is no significant material difference between the two.
In any event, whilst I accept general complexity is a relevant consideration, it cannot displace the need to give effect to the text of the CJDs, to the extent that text remains relevant to the work being performed by CFW technicians in light of the changed technology. Beyond considerations of general complexity, neither party undertook an analysis of how the work of the DFST technicians corresponds with the roles described in the CJDs. I have considered this question in respect of the diagnostic process and range of solutions involved in each respective role. I have not undertaken a detailed analysis beyond that, given both parties accepted that DFST technicians are appropriately classified as CFW5. However, in the absence of the parties having addressed this issue, I am not satisfied that a textual analysis of the CFW5 CJD would provide any better or worse basis for DFST technicians to be classified at that level than Mr Jayawardana.
CONCLUSION
In summary, Mr Jayawardana’s highly skilled optic fibre cable jointing on the CAN, hauling work on the CAN, pole inspection work, payphone cleaning work and his work on single line services to customer premises are indicative of a CFW4 classification. The AQF relativities in the CJDs also indicate that a CFW4 classification is applicable, however for the reasons identified above, I have given this aspect of the CJDs less weight than others.
However, the remaining considerations are indicative that a CFW5 classification applies. In particular, I have found that:
(a)Mr Jayawardana undertakes complex prescribed diagnostics in his fault repair work, consistent with the ‘job purpose – typical functions’ generic statement for the CFW5 Installer/Repairer CJD;
(b)Mr Jayawardana is required in his fault work to determine a course of action from a range of variable solutions, consistent with the ‘job purpose – typical functions’ generic statement for the CFW5 Installer/Repairer CJD;
(c)Mr Jayawardana undertakes Repair and Maintenance Work across all parts of the network, including the IEN, whereas the CAN IB CFW4 CJD is confined to work on the CAN, and the repair and maintenance function of the CFW4 Installer/Repairer CJD describes work on the CAN;
(d)Mr Jayawardana’s repair and maintenance work on the IEN meets the description in the CFW5 Installer/Repairer CJD in that Mr Jayawardana performs this work on the IEN and he undertakes work on complex and difficult faults;
(e)Mr Jayawardana installs exchange cards, consistent with the CFW5 Installer/Repairer CJD typical function;
(f)Mr Jayawardana has over six years of relevant experience, and has the proficiency, technical skills, logistical skills and personal organisation described in the ‘qualifications/experience level – desirable’ criteria for the CFW5 Installer/Repairer CJD;
(g)Regarding the general complexity of Mr Jayawardana’s role, he does not perform any less complex work than any CFW5 employee in the FMG, and the most complex work in that team is performed by CFW5 employees. Further, the general complexity of Mr Jayawardana’s work as a whole is not materially different to the general complexity of the DFST technician role as a whole, which both parties accept is appropriately classified at level CFW5.
For these reasons, I conclude that on the balance of probabilities, Mr Jayawardana is properly classified as level CFW5 under the 2022 Agreement. I find Mr Jayawardana’s major and substantial employment is not appropriately described by the CFW4 CJDs and is accordingly he is not appropriately classified at level CFW4.
This conclusion is based largely on Mr Jayawardana’s Repair and Maintenance Work, as is apparent from the summary above. However, it is also based in part on Mr Jayawardana’s APOC Work, with the additional functions that entails contributing to the complexity of his role. It is also based in part on Mr Jayawardana’s personal characteristics, including his years of experience and degree of competency.
This conclusion is also based in part on the increased breadth of Mr Jayawardana’s role from mid-2021 onwards. In particular:
(a)In Mr Jayawardana’s Project Work, the installation of Exchange Cards, and the functions of working to a design plan, contributing to redesign and populating workbooks contribute to the general complexity of his role.
(b)In Mr Jayawardana’s Wideband Work, the additional function of installing customer equipment and arranging activation contributes to the general complexity of his role.
However, omitting considerations relating to Mr Jayawardana’s Project Work and Wideband Work (and the corresponding counter-considerations in respect of his General Inspection Work as to the applicability of the CFW4 classification) I nonetheless reach the same conclusion, on balance, that prior to mid-2021, Mr Jayawardana was not appropriately classified at level CFW4 and should have been classified at level CFW5. That conclusion is based on the matters referred to above regarding Mr Jayawardana’s Repair and Maintenance Work, APOC Work and his personal characteristics. Accordingly, I conclude that Mr Jayawardana was entitled to be classified at CFW5 for the full relevant period to which his claim relates.
It is evident from this decision that the exercise of determining Mr Jayawardana’s correct classification in the context of changed technology has been far from straightforward. It has required extensive analysis of both historic and current functions. It has required careful consideration of a range of opposing and sometimes contradictory submissions in order to determine, firstly, what the CJDs meant at the time they were written, and, secondly, to arrive at a technology-appropriate and internally consistent approach to interpreting the CJDs some 22 years later. It must be observed that complexity of this nature is hardly beneficial for either Telstra or the employees to which the CJDs apply. For completeness I note that the 2022 Agreement contains both a tripartite process for designing new CJDs and robust dispute resolution procedures. Each of these processes would potentially facilitate not only the resolution of classification disputes but the development of new, agreed approaches which could address this undesirable complexity to the benefit of both parties in future agreements.
The parties are directed to confer and seek to agree on:
(a)A form of orders giving effect to this decision; and
(b)directions in respect of the determination of the Plaintiff’s claims for pecuniary penalties.
By 4pm on 25 October 2024:
(a)The Plaintiff is to file any agreed form of order and/or directions; or
(b)In the absence of agreement, each party is to file and serve their proposed form of orders and/or directions.
In the absence of agreement between the parties, the matter will be listed for directions on 6 November 2024.
Appendix 1 — comparison of the text of the relevant Core Job Descriptions
| CFW 4 Installer/Repairer | CFW 5 Installer/Repairer1 | CFW 7 Installer / Repairer | CFW 4 CAN Infrastructure Build |
| 1. Primary Role … Without immediate supervision or direction undertake the full range of end to end installation, repair and maintenance functions associated to telecommunications products and services, to meet customers [sic] expectations and service commitments and maximise network profitability and revenue. | [Same as CFW 4 Installer/Repairer] | 1. Primary Role … Without immediate supervision or direction undertake | 1. Primary Role… Without immediate supervision or direction undertake the full range of and revenue. |
| 2. Typical Functions Typically an individual performing this role would be required to undertake prescribed diagnostics and programming of services and networks in the field and determine the course of action from a limited range of solutions. | 2. Typical Functions Typically an individual performing this role would be required to undertake complex prescribed diagnostics and programming of services and networks in the field and determine the course of action from a | 2. Typical Functions Typically an individual performing this role would be required to undertake very complex variable solutions. | [Same as CFW 4 Installer/Repairer] |
Tracking shows relevant material differences from the CFW 4 Installer/Repairer. Immaterial or minor differences in wording (such as re- ordering of the same wording within a sentence or paragraph) are not tracked.
| CFW 4 Installer/Repairer | CFW 5 Installer/Repairer1 | CFW 7 Installer / Repairer | CFW 4 CAN Infrastructure Build |
| Typical functions could include, but not exclusive to: [items in the list re-ordered to line-up equivalent items across the four roles] | |||
| · Repair and Maintenance of the Customer Access Network including Cable TV. | · Repair of complex and difficult CAN transmission and inter- exchange network faults (ESD). | [No direct equivalent] | [No direct equivalent] |
| · Repair and Maintenance of Simplex Products & Services (eg. single line services, OnRamp, basic Data, public Payphones & associated products i.e.: TOPS, COPS). | [No direct equivalent] | [No direct equivalent] | [No direct equivalent] |
| · Installation or Repair of Complex CPE Products and Cabling (eg. PABX, SBS, Data & Special Services, Mobiles, Media & Broadcast Services, associated MDF activities). | · Installation and Repair of Complex CPE products and cabling (eg. PABX, SBS, Data & Special Services, Mobiles, Media & Broadcast services, associated Exchange work). | · Specialist complex repair of CPE (eg. PABX, Data, Media, & Broadcast services, associated Exchange elements). [sic] and/or CPE related networks | [No direct equivalent] |
| · Installation & Repair of Fixed Radio Access/Small Pair Gain Systems. | · Repair and Maintenance of Large Pair Gain Systems {eg. RIM, DRCS & Customer Radio) | [No direct equivalent] | [No direct equivalent] |
| CFW 4 Installer/Repairer | CFW 5 Installer/Repairer1 | CFW 7 Installer / Repairer | CFW 4 CAN Infrastructure Build |
| · Non-Network Interference work on Switches & Transmission (eg. Alarm resets, board changes under GOC direction, line conditioning and testing). | · Repair and Maintenance of potential Network interference and service affecting Faults and Isolations associated to Switches and Transmission Systems (eg. Special service jumpering, fault rectification and hazardous board replacement under direction from GOC, RIM , RCM Faults, etc) | · Highly specialist complete Repair and Maintenance of Network and Service affecting Faults and Isolations associated with Switches and Transmission activities. (eg. difficult and complex fault rectification, outage recovery, complex switch fault rectification, DRCS, RIM, S12, AXE and Customer Radio). | [No direct equivalent] |
| [No direct equivalent] | · Install and Replace Exchange Cards. | [No direct equivalent] | [No direct equivalent] |
| [No direct equivalent] | [No direct equivalent] | [No direct equivalent] | · Highly skilled Cable Jointing (eg. Complex Cable Jointing, Fibre Optic Jointing). · Complex CPAS (eg. Installation and Repair of APCAMS). · Party Leader up to 9 Staff undertaking Pit, Pipe, Conduit, Cable or Service Installation, or Party Leader of a small team undertaking Directional Boring (ie > 10 ,000 Lbs force ), Large Mole Plough, Complex Hauling etc. · Large Pair Gain System Installation (eg . RIM, DRCS, Customer Radio). · Pole Inspection |
| CFW 4 Installer/Repairer | CFW 5 Installer/Repairer1 | CFW 7 Installer / Repairer | CFW 4 CAN Infrastructure Build |
| ACCOUNTABILITIES (Primary business outputs set for job) … | |||
| 1. Achieve faultless end to end fault rectification and installations to the full satisfaction of customers [sic] expectations; · Through compliance to prescribed standards, practices and procedures · Through correct and proficient utilisation of instruments and tools from remote points within the network. | [Same as CFW 4 Installer/Repairer] | 1. Achieve faultless end to end fault rectification and installations to the full satisfaction of customers [sic] expectations. · Through Compliance to
· Through correct and | 1. Achieve faultless end to end
|
| 2. Undertake planned activities associated to infrastructure maintenance and upgrades within given time lines. · Through compliance to prescribed standards, practices and procedures · Through correct and proficient utilisation of instruments and tools from remote points within the network. | [Same as CFW 4 Installer/Repairer] | 2. Undertake planned and complex routine activities associated to network & service infrastructure, maintenance and upgrades, within given time lines. · Through Compliance to
· Through correct and the network. | 2. Plan and Undertake planned activities associated to infrastructure maintenance and upgrades within given time lines, through compliance to prescribed standards, practices and procedures within given time lines.
|
| CFW 4 Installer/Repairer | CFW 5 Installer/Repairer1 | CFW 7 Installer / Repairer | CFW 4 CAN Infrastructure Build |
| 3. Ensure customer delight by constant interaction with the customer to confirm requirements, inform of progress and confirm the agreed requirements are fully met upon completion. | [Same as CFW 4 Installer/Repairer] | [Same as CFW 4 Installer/Repairer] | [Same as CFW 4 Installer/Repairer] |
| 4. Contribute to personal and public image by compliance with all relevant policies, practices and regulations in an effective and responsible manner. | [Same as CFW 4 Installer/Repairer] | [Same as CFW 4 Installer/Repairer] | [Same as CFW 4 Installer/Repairer] |
| 5. Contribute to the company's financial well being by the timely and accurate capturing and recording of all relevant cost, time and revenue data, along with seeking opportunities to grow revenue and reduce costs. | [Same as CFW 4 Installer/Repairer] | [Same as CFW 4 Installer/Repairer] | [Same as CFW 4 Installer/Repairer] |
| 6. Contribute to the effective resource and workforce deployment through compliance to Work Management Centre business rules and performance expectations. | [Same as CFW 4 Installer/Repairer] | [Same as CFW 4 Installer/Repairer] | [Same as CFW 4 Installer/Repairer] |
| CFW 4 Installer/Repairer | CFW 5 Installer/Repairer1 | CFW 7 Installer / Repairer | CFW 4 CAN Infrastructure Build |
| QUALIFICATIONS - MANDATORY (No person to occupy job without this) An employee will be required to possess/obtain and maintain the relevant and applicable licences to performing this function as deemed mandatory by regulatory and legal authorities and posses/obtain [sic] and maintain a drivers [sic] licence. Typical Applicable Licence could be AUSTEL BCL/CATS cabling licence Where a mandatory licence is required to perform a particular job function it will be specified on the individual job description statement (i.e.; [sic] Riggers Ticket, Articulated Truck Licence, Austel Licence) | [Same as CFW 4 Installer/Repairer except that BCL/CATS is removed as a typical applicable licence] | [Same as CFW 5 Installer/Repairer] | [Same as CFW 4 Installer/Repairer except that BCL/CATS is removed as a typical applicable licence and Heavy Machinery Operators [sic] Licence is added instead] |
| CFW 4 Installer/Repairer | CFW 5 Installer/Repairer1 | CFW 7 Installer / Repairer | CFW 4 CAN Infrastructure Build |
| QUALIFICATIONS/EXPERIENCE LEVEL - DESIRABLE | |||
| 1. An employee at the top end of this level will demonstrate a high level of procedural and systematic proficiency in performing those functions and would be required to apply well developed broad technical skills, would typically, but not restricted to, having a minimum of four years relevant experience in at least one of the relevant functional areas defined in the job role and posses [sic] the following attributes; [sic] · Logistical skills for determining job planning · First level leadership skills to lead a small team on site · Personal organisation & high level of self motivation · Able to Operate Screen Based Equipment · Possess a sound knowledge of voice/basic data products. | 1. An employee at the top end of this level will demonstrate a very high level of procedural and systematic proficiency in performing those functions and would be required to apply very well developed broad technical skills and would, typically, but not be restricted to, having a minimum of · Well developed logistical skills for determining job planning · · Well developed personal organisation & high level of self motivation · Able to Operate Screen Based Equipment · Possess a sound knowledge of voice/ | [Same as CFW 5 Installer/Repairer] | An employee · Logistical skills for determining job planning · Personal organisation & high level of self motivation · Able to Operate Screen Based Equipment · First level Leadership skill to Lead a small Team on site · A high level of procedural and systematic proficiency in performing those functions. · |
| CFW 4 Installer/Repairer | CFW 5 Installer/Repairer1 | CFW 7 Installer / Repairer | CFW 4 CAN Infrastructure Build |
| 2. An occupant performing at this level is a front line ambassador for Telstra and will require the individual to present the highest level of customer service behaviours possible, to take ownership and show initiative in the resolution of customer related issues and the provision of service. | [Same as CFW 4 Installer/Repairer] | [Same as CFW 4 Installer/Repairer] | [Same as CFW 4 Installer/Repairer] |
| 3. The Employee will be required to show a high level of initiative as a fundamental requirement in the delivery of service to customers and to operate inter dependently [sic]. | [Same as CFW 4 Installer/Repairer] | [Same as CFW 4 Installer/Repairer] | [Same as CFW 4 Installer/Repairer] |
| A person who is assessed as fully competent at this work level and across all work functions performed in this position analysis, would be eligible to attain the following Australian Qualifications Framework Competencies and/or certificates. [items in the list re-ordered to line-up equivalent items across the four roles] | |||
| 3 of the required 7 competencies for AQF2, Certificate ii (Cabling) | [No direct equivalent] | [No direct equivalent] | 7 of the required 7 competencies for AQF2, Certificate ii (Cabling) |
| 4 of the required 6 competencies for AQF3, Certificate iii (Cabling) | |||
| 1 of the required 5 competencies for AQF4, Certificate iv (Cabling) | |||
| 2 of the required 6 competencies for AQF3, Certificate iii (CAN) | 3 of the required 5 competencies for AQF4, Certificate iv (CAN) | [Same as CFW 5 Installer/Repairer] | 6 of the required 6 competencies for AQF3, Certificate iii (CAN) |
| CFW 4 Installer/Repairer | CFW 5 Installer/Repairer1 | CFW 7 Installer / Repairer | CFW 4 CAN Infrastructure Build |
| 1 of the required 6 competencies for AQF3, Certificate iii (Telecommunications) | 2 of the required 5 competencies for AQF4, Certificate iv (Telecommunications) | [Same as CFW 5 Installer/Repairer] | [No direct equivalent] |
| 4 of the required 6 competencies for AQF3, Certificate iii (CPE) | 1 of the required 4 competencies for AQF5, Diploma In (CPE) 4 of the required 5 competencies for AQF4, Certificate iv (CPE) | [Same as CFW 5 Installer/Repairer] | [No direct equivalent] |
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