Mr Michael Papathanasiou v National Australia Bank Limited T/A NAB

[2019] FWC 1239

[2019] FWC 1239

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Mr Michael Papathanasiou
v
National Australia Bank Limited T/A NAB
(C2018/4256)

DEPUTY PRESIDENT BULL SYDNEY, 25 FEBRUARY 2019

S.739 Dispute about application of deployment provisions and ‘comparable position’ definition under NAB Enterprise Agreement.

[1] On 2 August 2018, the Finance Sector Union (FSU) filed a dispute notification on behalf of Mr Michael Papathanasiou (the applicant) pursuant to s.739 of the Fair Work Act2009 (the Act) in respect to a dispute with his employer, the National Australia Bank Limited (NAB). The application seeks to have the Fair Work Commission (the Commission), in accordance with clause 64 - Dispute resolution procedure of the NAB Enterprise Agreement 2016 (the Agreement), resolve a dispute relating to the applicant’s previous position of Team Leader Billing and Packages a Group 2 position being made redundant following a restructure and his subsequent deployment to a new position of Team Leader NAB Connect Servicing Team A, also a Group 2 position.

[2] A conciliation conference was held before the Commission on 5 September 2018, where the applicant was represented by the FSU. At the conclusion of the conference an interim arrangement was agreed to by the parties after which the FSU was to advise the Commission if the dispute was to be referred for arbitration. On 9 October 2018 the FSU advised the Commission that the applicant was of the view that the dispute had not been resolved and requested the dispute be listed for arbitration. Directions for an arbitrated hearing were subsequently issued.

[3] On 10 December 2018, the FSU advised the Commission it was no longer representing the applicant.

[4] As a consequence, the applicant appeared on his own behalf at the hearing and Ms Gaspar, a solicitor, sought leave to appear for NAB. Leave was granted for the NAB to be legally represented pursuant to s.596(2)(a) of the Act on the basis that the application of the ‘comparable position’ provision of the Agreement involved a degree of complexity that legal representation would enable to be dealt with more efficiently.

Matter to be determined

[5] No party disputed the ability of the Commission to deal with the dispute by way of arbitration. Clause 64 Dispute resolution procedure of the Agreement provides that where a dispute or grievance about any matter arises under the Agreement the matter may be referred to the Commission for arbitration after the parties in dispute have followed certain steps set out in the dispute resolution clause. Section 739 of the Act provides the Commission with the power to deal with a dispute properly referred to it via an enterprise agreement.

Submissions and evidence of Mr Papathanasiou

[6] Mr Papathanasiou provided an outline of submissions 1 and a witness statement;2 he also gave oral evidence and was subject to cross examination.

[7] Mr Papathanasiou states that he had been a high-performing employee at NAB since he joined NAB in 2014 as a Trainee Service Advisor. He was seconded as a Team Leader WA Releases and P&C in June 2015.

[8] In November 2017, Mr Papathanasiou became the Team Leader Billing and Packages.

[9] On 15 May 2018, NAB notified him that his role as Team Leader Billing and Packages would be impacted by the ‘Simpler Bank’ restructure, which was a large-scale restructure occurring across NAB. It was proposed that his team merge with two other teams within the business resulting in three team leader roles becoming one. 3

[10] Mr Papathanasiou was invited to take part in an expression of interest process which he did for 3 roles but was unsuccessful in securing a position. NAB then determined that he would be placed in the role of Team Leader NAB Connect Servicing Team A. At the date of the hearing Mr Papathanasiou had not yet performed this role due to having been on sick leave.

[11] Mr Papathanasiou submitted that the new role Team Leader NAB Connect Servicing Team A fails to satisfy both (c) and (d) of the comparable position definition outlined in the Agreement and does meet not the requirements of clause 55.11(c) of the Agreement. On this basis, Mr Papathanasiou submitted that his deployment into the position of Team Leader NAB Connect Servicing Team A cannot proceed.

[12] Under his former position of Team Leader Billing and Packages Mr Papathanasiou performed a number of back office functions including corporate billing, liaising with credit unions and the maintenance of customer pricing plans for NAB Connect Billing on the Generic Pricing Calculator. He had seven highly skilled staff directly reporting to him. As Team Leader he was involved in the management and triage of a central inbox to ensure service level agreements were met and to provide an escalation point on the ‘rare’ occasion it was needed. He also worked closely with the various Product Managers in order to maintain and deliver on improvement initiatives and product enhancements.

[13] As a Team Leader Mr Papathanasiou was required to plan and manage resources within Operational Excellence methodology which required the use of the Active Operations Management (AOM) tool. The AOM was a significant part of his former role and he would spend a minimum of 25% of his week undertaking AOM tasks.

[14] The position of Team Leader, NAB Connect Servicing, Team A is a leadership position within a telephony-based environment (call centre) where a team of 6 direct reports receive inbound calls from frontline customers in relation to their accounts and services.

[15] Mr Papathanasiou stated that unlike his previous position the new role would involve rotating shifts and he would be required to take phone escalations directly from customers. The team does not utilise AOM and he would instead be required to complete call monitoring on staff members.

[16] Mr Papathanasiou stated that the new role was far more supervisory than his previous role. During cross examination, Mr Papathanasiou accepted that a key part of his new role would be performance coaching of a team of employees which was part of his former role as Team Leader of Billing and Packages. 4

[17] His previous role involved a fixed shift working 8:30am – 6:00pm, whereas in the new role he would have to work a rotating roster where he could finish as late as 8:00pm which would result in extra travel 5 and greater financial cost. A rotating roster would also prevent him from attending to after work renovations on a newly purchased property.

[18] Mr Papathanasiou contended that the position of Team Leader NAB Connect Servicing Team A would also deskill him as an employee through the loss of AOM and resource planning, real-time management and forecasting duties that are attributed to AOM, as well as the loss of the ability to be accredited by AOM which is a nationally-recognised program. 6

[19] The Team Leader NAB Connect Servicing Team A role will see an erosion of his current responsibilities and duties, all of which have been central to his various roles over the past three years, in leadership.

[20] The loss of AOM would give him a greater reduction of duties than any other element of his work as it was the largest single component of his previous role.

[21] The introduction of resource planners and real time managers would take a large portion of his work, which he would no longer have oversight or control of. 7 Resource planning and real time management was seen by Mr Papathanasiou as a highly important skill and task and desirable attribute of any employee and the loss of those skills would result in a negative impact.

[22] Mr Papathanasiou stated that he had not been advised until receiving Mr Pippett’s witness statement that he would not be required to work on a rotating roster, which was contrary to what NAB had previously advised. 8 NAB’s solicitor advised that Mr Papathanasiou had not been formally advised of this change due to having been on sick leave since 8 October 2018.9

[23] Mr Papathanasiou concluded his submissions by stating that the question to be decided was not whether the dispute centred around the prestige of the new role or the fact that one team is telephone based and one is an email based, but whether or not the duties of the specific roles of his previous position and his new role, differed enough for it to be unreasonable for him to be placed in the new role. 10

Submissions and evidence of NAB

[24] NAB submitted that the new role of Team Leader NAB Connect Servicing Team A is a ‘comparable position’ to the applicant’s old role of Team Leader, Billing and Packages ’as per the Agreement. Clause 55.11 of the Agreement allows for NAB to deploy an employee to a comparable position which is defined at clause 5 of the Agreement. NAB submits that the definition of comparable position is satisfied with the duties of the new role being ‘comparable’ to Mr Papathanasiou’s previous role and that the application should be dismissed.

[25] It was put that the differences between the old role and the new role are ‘negligible’. Both roles are Team Leader positions requiring the occupant to coach and mentor members of a Team and to liaise with key stakeholders and ensure that the Team delivers the service required. The previous position headed an email-based contact team whereas the new position heads a telephone-based servicing team.

[26] The new role has the same classification grade, same number of hours per four week cycle and is at the same location as the old role. On this basis, the argument is reduced to whether requirement (c) in the definition of ‘comparable position’ under the Agreement has been met. That is, does the new role entail a change in duties significant enough to be unreasonable in the circumstances of Mr Papathanasiou’s skills, ability, previous work experience and training required to fulfil the role.

[27] It is put that any difference between the two roles is minor and the primary difference between two positions is not the duties discharged by the Team Leader but those of the advisers the Team Leader is required to supervise. In the previous Team Leader role, the advisers dealt with billing and billing enquiries received via email. In the new Team Leader role advisers deal with enquiries via telephone. It is put that this is not a significant change such as to be unreasonable in the circumstances of Mr Papathanasiou’s skill, ability and previous work experience.

[28] It is put that in both roles Mr Papathanasiou is responsible for organising and allocating work to ensure that NAB timeframes are maintained. While the new role does not utilise AOM and uses Contact Centre Pulse (CCPulse) the difference relates to the manner in which advisers receive their work, AOM being an email based monitoring program and CCPulse applying to telephony services.

[29] In both roles the Team Leader is responsible for monitoring the quality of work performed and ensuring the work is compliant with NAB processes. All Team Leaders are required to coach, develop and undertake performance coaching with their direct reports and in both roles the Team Leader is responsible for providing an escalation point if required. The Team Leader is not expected to act as an escalation point for complex technical issues which are referred to subject matter experts.

Evidence of Ms Dawn Hunter

[30] Ms Dawn Hunter, the NAB Connect Servicing Manager, to which the new role reports gave evidence that a decision had been made that effective from 13 November 2018, 11 Mr Papathanasiou would not be required to work a rotating roster in his new role of Team Leader Connect Servicing Team A. Ms Hunter also explained the reasons for the decision being taken by NAB12.

Evidence of Mr Simon Pippett

[31] Mr Pippett was the NAB Specialised Support Customer Executive, Customer Management, Victoria (SSCE) from 9 July 2018 until 1 November 2018 when he left the employment of NAB, having worked with NAB since April 2000. In the SSCE role he was responsible for the Customer Management Group which was responsible for ensuring the fulfilment and maintenance of transactional banking products. Mr Pippett provided a witness statement 13 and was subject to cross examination.

[32] In May 2018, NAB advised employees that as part of an organisation wide transformation it was considering changes to the Business and Private Division. A new structure was put in place for the Division and a number of new positions were created and some positions were made redundant. Mr Papathanasiou was advised that his position as Team Leader, Billing and Packages was redundant.

[33] A new structure comprising six streams commenced in July 2018, including the Business Direct and Small Business stream. The Business Support Unit sits within this Group and under it sits NAB Connect Servicing, which provides assistance to NAB Connect customers and includes the Connect Servicing Team A. 14

[34] In Mr Papathanasiou’s former Team Leader role he was responsible for managing a team of advisers who were responsible for preparing customised billing for business customers, setting up banking packages for micro, small and medium business customers and running NAB Connect monthly billing. The advisers would largely receive their work requests via an email mailbox; however, they also received work enquiries by telephone. Mr Papathanasiou was a People Leader responsible for coaching and developing the advisers who reported to him.

[35] Following the restructure Mr Papathanasiou submitted an expression of interest for three roles which were Group 3 positions, which is higher in the NAB classification structure than his previous role. The appointments to these roles involved a competitive process and included applicants who were already employed at the Group 3 classification and high performing employees at the Group 2 classification.

[36] On 14 June 2018, Mr Pippett advised Mr Papathanasiou that he was unsuccessful in obtaining a Group 3 role and would be appointed to the Team Leader NAB Connect Servicing Team A role which was a new Team Leader role Group 2 level. On 18 June 2018, Mr Papathanasiou advised NAB that he did not believe the new role was a comparable role as required under the Agreement. 15

[37] Mr Pippett’s evidence was that the primary duties and responsibilities in the new Team Leader role were ‘significantly’ the same as those Mr Papathanasiou performed in his former Team Leader role.

[38] Mr Pippett stated that the purpose of the new Team Leader role is to be a Team Leader of 11 advisers (previously he supervised 8 advisers) within the Business Support Team in the Business and Private Division. Under cross examination, Mr Pippett conceded that he couldn’t guarantee the new role supervised 11 employees and it could be a lesser number. 16

[39] Mr Pippett stated that Mr Papathanasiou continues to be a Team Leader in his new role responsible for coaching and developing advisers who report to him. Mr Papathanasiou must continue to support the Team in the delivery of their activities ensuring they provide efficient and high quality service to internet and external customers.

[40] Mr Pippett’s evidence was that the new role was the same as Mr Papathanasiou’s previous role where he was responsible for leading a team of advisers who service customer NAB Connect enquiries.

[41] Mr Pippett stated that the former and new Team Leader roles were almost identical based on Papathanasiou still remaining responsible for:

•  Managing resources to ensure customer needs are met;

•  monitoring and ensuring service related standards are met. 17 The NAB program used in his previous role was the AOM, whereas the program for monitoring work of advisers who receive work by telephone is called CCPulse. These are just different names for platforms used at NAB to monitor productivity and compliance. AOM is used in the email teams and real time monitoring is used in the phone teams.18

•  acting as an escalation point for any issues his team or its clients face;

•  performance coaching his team and supporting them in their development and identifying opportunities for continuous improvement; and

•  ensuring productivity standards are met and developing initiatives to improve systems and procedures.

[42] Mr Pippett’s evidence was that while Mr Papathanasiou’s team may receive work by telephone as opposed to an email mailbox he would continue to be responsible for discharging the same duties. The new Team Leader role does not de-skill Mr Papathanasiou as he continues to exhibit all the key skills of a Team Leader and will further his supervisory skills by the increased the number of advisors who directly report to him. Mr Pippett stated that Mr Papathanasiou’s experience will be expanded within the Business and Private Division. This will enable Mr Papathanasiou to be looked on favourably within NAB as it will broaden his exposure to different NAB products.

Consideration

[43] A number of clauses in the Agreement are relevant to the resolution of this matter.

[44] In AMWU v Berri Pty Limited 19 a Full Bench set out a number of principles relevant to interpreting an enterprise agreement which I respectfully adopt, the first being that the construction of an enterprise agreement begins with consideration of the ordinary meaning of the relevant words. Context and purpose are also relevant to the construction of an agreement even where the words being construed appear, on their face, to have a clear and unambiguous meaning.20

[45] In this matter the interpretation of the relevant provisions of the Agreement are not in dispute, but rather the application of the facts and circumstances which apply to Mr Papathanasiou’s previous and current Team Leader roles following his previous Team Leader role having been identified as redundant and his redeployment to a newly created Team Leader role.

[46] Clause 52 refers to Principles in organisational change as set out below:

“52. Principles in organisational change

52.1 NAB and FSU are committed to the following principles in respect to organisational change and its effect on employees:

(a) maximising redeployment opportunities for displaced employees;

(b) minimising retrenchments;

(c) minimising forced retrenchments;

(d) matching employee preferences as far as possible with business unit needs;

and

(e) anti-discrimination provisions contained in the NAB Award are applied.

52.2 In order to avoid retrenchment, NAB will wherever possible:

(a) use natural attrition;

(b) curtail external recruitment to the affected business unit;

(c) seek employee preferences in a business unit affected by redundancies;

(d) select for retrenchment amongst those employees who have expressed an interest in voluntary retrenchment (subject to NAB's right to retain an employee's services due to ongoing skill requirements);

(e) consult with affected employees and the FSU.”

[47] Clause 55 Deployment at 55.11 refers to the ability of NAB to deploy on deployment to a comparable position in the following terms:

“55.11 Deployment to a Comparable Position

(a) NAB may deploy an employee “On Deployment” to a Comparable Position.

(b) If an employee does not accept deployment to a Comparable Position the employee is not entitled to the retrenchment payments.

(c) The process of identifying a comparable position is not designed to de-skill NAB employees. The process is designed to maintain, enhance or broaden an employee’s principal skills to meet business and operational requirements.”

[48] At clause 5 of the Agreement the meaning of ‘comparable position’ is provided:

“Comparable Position means a position which:

(a) is above or at the same TEC as the position the employee held which was

made redundant;

(b) fills the same number of hours per 4 week cycle;

(c) does not entail a change in duties significant enough to be unreasonable in

the circumstances of the employee's skills, ability, previous work experience

and training required to fulfill (sic) the role;

(d) does not involve an unreasonable change in daily start and finishing times (to

be determined by such factors as the degree of the change and the

employee's family responsibilities and personal needs); and

(e) is at the same location or at another location which is in reasonable

commuting distance (to be determined by reference to factors including the

employee's duties and responsibilities, family responsibilities and historical

use of private and public transport).”

[49] The definition of ‘comparable position’ is to be read in conjunction with clause 55.11 of the Agreement and in particular (c) being that the process of identifying a comparable position is not designed to de-skill.

[50] The Agreement at clause 52 requires NAB to maximise redeployment opportunities for displaced employees and to take a number of steps in order to avoid retrenchment.

[51] In addressing the requirements of a ‘comparable position’ under the Agreement definition all the requirements from (a) to (e) need to be met to satisfy the definition of ‘comparable position’.

[52] Considerations (a) and (b) of the definition are not in contention as the new role has the same TEC as the previous role and fills the same number of hours per 4 weekly cycle. The TEC being the total employment compensation used for pay comparisons.

[53] Based on the concession made by NAB that Mr Papathanasiou would continue to work the same hours in the new role as his previous role, the argument put by Mr Papathanasiou in respect of consideration (d) under the definition of comparable position regarding changes in the daily start and finish times falls away.

[54] I arrive at this conclusion relying on the sworn evidence of Ms Hunter and Mr Pippett, despite Mr Papathanasiou still maintaining the point based on doubts that this guarantee would be honoured. 21

[55] Consideration (e) is also not a matter in dispute as the new role is based at the same location as the previous role, 700 Bourke Street Docklands. This only leaves consideration (c) under the Agreement definition of ‘comparable position’ as a matter for determination by the Commission which is essentially whether the new position entails a change in duties significant enough to be unreasonable in the circumstances of Mr Papathanasiou’s skills, ability, previous work experience and training required to fulfil the new role.

[56] While Mr Papathanasiou can point to differences between the two roles, and accepting that a new role arising from a restructure is unlikely to be identical to a redundant role, the identified changes fail to satisfy me that they are significant enough to be unreasonable having regard to Mr Papathanasiou’s skills, ability, previous work experience and training. The move from an email-based contact team to telephone-based servicing has less impact on the Team Leader role than that of the front line advisers. In any event, the nature of the service being provided is essentially the same as the role of the Team Leader, as explained by Mr Pippett in his evidence.

[57] Moving to a rotating roster with a change in the daily start and finishing times (although not accepted by NAB as an unreasonable change), was a substantial element of Mr Papathanasiou’s argument in his application. I am satisfied on the evidence of Ms Hunter that this requirement has been removed by NAB, although I would encourage NAB to reduce this change in position to writing in light of the identified lapse in previously communicating this change to Mr Papathanasiou in any formal manner.

[58] Mr Papathanasiou submitted that the new role would result in his de-skilling. This argument is not sustainable accepting, which I do, NAB’s position that Mr Papathanasiou will continue to be required to exercise his key skills as a Team Leader and will expand his knowledge within the Business and Private Division.

[59] For the reasons provided above I am satisfied that Mr Papathanasiou’s currently appointed role of Team Leader, NAB Connect Servicing, Team A is, for the purposes of the Agreement, a ‘comparable position’ to that of his previous role Team Leader Billing and Packages. Accordingly, it is consistent with NAB’s right under clause 55.11 Deployment to a Comparable Position in that NABhave deployed Mr Papathanasiou to a comparable position within the meaning of that term as defined in Clause 5 of the Agreement.

DEPUTY PRESIDENT

Appearances:

Mr Papathanasion on his own behalf

Ms Natalie Gaspar Solicitor for the National Australia Bank Ltd

Hearing details:

MELBOURNE

2018

December 12

Printed by authority of the Commonwealth Government Printer

<PR705290>

 1   Exhibit A4

 2   Exhibit A1

 3   While a restructure occurred the form was different than initially advised by NAB Ex A1 at [15]

 4   PN326

 5   Mr Papathanasiou shares a vehicle with his wife

 6   PN178

 7   PN963

 8   See Exhibit A2 email of 19 July 2018 from NAB to applicant

 9   PN372 and Mr Pippett’s witness statement ExR1 at [55]

 10   PN991

 11   PN521

 12   PN521

 13   Ex R1

 14   Ex R1 at [12]

 15  Exhibit A1 at [22]

 16   PN832

 17   In Mr Papathanassiou’s former role he monitored standards of advisers who received the work by email.

 18   PN764

 19   [2017] FWCFB 3005

 20   See CFMEU v Endeavour Coal Pty Ltd [2017] FWCFB 4487

 21   PN921