Steven Adrian Carrington v Sykes Australia Pty Ltd
[2021] FWC 3230
•4 JUNE 2021
[2021] FWC 3230
The attached document replaces the document previously issued with the above code on 4 June 2021
Paragraph numbering has been updated and the decision has been renumbered accordingly.
Associate to Deputy President Lake
Dated 4 June 2021
| [2021] FWC 3230 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 – Application to deal with a dispute
Steven Adrian Carrington
v
Sykes Australia Pty Ltd
(C2021/903)
| DEPUTY PRESIDENT LAKE | BRISBANE, 4 JUNE 2021 |
Application to deal with a dispute regarding classification of an employee under the Contract Call Centres Award 2020
[1] Mr Steven Carrington (the Applicant) made an application under s.739 of the Fair Work Act 2009 (Cth) (the Act) to the Fair Work Commission (the Commission) on the 22 February 2021. The Application related to the Applicant’s classification level under the Contract Call Centres Award 2020 (the Award), which governed his employment. He was formally employed as a Level 1 employee under the Award and paid as such. He contends that his role should have been classified as a Level 2. His former employer, Sykes International Pty Ltd (the Respondent), disputes that claim and maintains that he was always a Level 1 employee.
[2] The Applicant was terminated for alleged misconduct on 31 December 2020. He lodged this application on 22 February 2021 date.
[3] Following an unsuccessful conciliation conference, I made directions and listed the Dispute for arbitration. Both parties filed submissions in accordance with my directions and agreed that a determination be made on the papers.
[4] I have not addressed the potential jurisdictional matter of the Applicant no longer being employed by the Respondent, as I consider that the issue was raised during employment. Although the argument has not been prosecuted by the Applicant since a response from the employer in early 2019, I regard the dispute as one that emanated during his employment and that there remains a dispute on foot. This was not disputed between the parties and I am satisfied, on the evidence, that I have jurisdiction to arbitrate the Dispute.
A brief outline of the Dispute
[5] The Applicant commenced in the role of a Level 1 Customer Contact Centre with the Respondent on 28 July 2018. His employment ended on 31 December 2020. During his employment, the Applicant completed additional training that give him the skill set referred to as “Social Media” (SM). The Applicant wrote to the Respondent in late 2018 indicating that he sought a review of his position and to be reclassified as a Level 2. The Respondent, after consideration of the Applicant’s request, replied in early 2019 and determined that his position (even with the SM tasks) were a Level 1. The Applicant continued working with the Respondent until the end of December 2020.
Questions for determination
[6] The first issue I must determine is, do the duties as outlined with the SM component result in a re-classification to the next higher level?
Relevant provisions of the Award
[7] Clause 12 of the Award provides for the classifications under that instrument in the following terms:
“12.1 A definition of the classifications under this award is set out in Schedule A—Classification Structure and Definitions of this award.
12.2 All employees covered by this award must be classified according to the structure set out in Schedule A—Classification Structure and Definitions and paid the minimum wage in clause 15—Minimum rates.
12.3 The classification by the employer must be according to the skill level or levels required to be exercised by the employee in order to carry out the principal functions of the employment as determined by the employer.
12.4 Employers must advise their employees in writing of their classification and of any changes to their classification.
[8] Schedule A of the Award goes on to state that:
“A.2 Classification definitions
A.2.1 Customer contact stream—classifications
…
(b) Customer Contact Officer Level 1
(i) Role definition
A Customer Contact Officer Level 1 is employed to perform a prescribed range of functions involving known routines and procedures and some accountability for the quality of outcomes. Such an employee will:
• receive calls;
• use common call centre telephone and computer technology;
• enter and retrieve data;
• work in a team; and
• manage their own work under guidance.
Such an employee provides at least one specialised service to customers such as sales and advice for products or services, complaints or fault enquiries or data collection for surveys.
(ii) Indicative tasks
An employee at this level would normally perform the following indicative tasks:
• follow work health and safety policy and procedures;
• communicate in a customer contact centre;
• work in a customer contact centre environment;
• respond to inbound customer contact;
• conduct outbound customer contact;
• use basic computer technology;
• use an enterprise information system; and
• provide quality customer service.
(iii) An employee at this level would also normally perform some of the following indicative tasks:
• fulfil customer needs;
• process sales;
• action customers’ fault reports;
• resolve customers’ complaints;
• process low risk credit applications;
• process basic customer account enquiries; and
• conduct data collection.
(iv) Qualifications
An employee who holds a Certificate II in Telecommunications (Customer Contact) or equivalent would be classified at this level when employed to perform the functions in the role definition and taking into account the indicative tasks.
(c) Customer Contact Officer Level 2
(i) Role definition
A Customer Contact Officer Level 2 is employed to perform a defined range of skilled operations, usually within a range of broader related activities involving known routines, methods and procedures, where some discretion and judgment is required in the selection of equipment, services or contingency measures and within known time constraints. Such a person will:
• receive calls;
• use common call centre telephone and computer technology;
• enter and retrieve data;
• work in a team; and
• manage their own work under guidance.
(ii) An employee at this level performs a number of functions within a customer contact operation requiring a diversity of competencies including:
• provide multiple specialised services to customers such as complex sales and service advice for a range of products or services, difficult complaint and fault inquiries, deployment of service staff;
• use multiple technologies such as telephony, internet services and face-to-face contact; and
• provide a limited amount of leadership to less experienced employees.
(iii) Indicative tasks
An employee at this level would normally perform the following indicative tasks:
• follow work health and safety policy and procedures;
• communicate in a customer contact centre;
• work in a customer contact centre environment;
• respond to inbound customer contact;
• conduct outbound customer contact;
• use basic computer technology;
• use an enterprise information system; and
• provide quality customer service.
(iv) An employee at this level would also normally perform some of the following indicative tasks:
• send and retrieve information over the internet using browsers and email;
• manage work priorities and professional development;
• manage workplace relationships in a contact centre;
• use multiple information systems;
• manage customer relationships;
• deploy customer service staff;
• conduct a telemarketing campaign;
• provide sales solutions to customers;
• negotiate with customers on major faults;
• resolve complex customer complaints;
• process high risk credit applications; and
• process complex accounts, service severance and defaults.
(v) Qualifications
An employee who holds a Certificate III in Telecommunications (Customer Contact) or equivalent would be classified at this level when employed to perform the functions in the role definition and taking into account the indicative tasks.
Principles of construction
[9] The principles that I must apply in properly construing the Award were summarised by the Full Bench in AMWU v Berri Pty Ltd 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 Part 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 Part 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 aid 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 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.” 1
[10] Furthermore, the observations made by Justice Burchett in Short v FW Hercus Pty Ltd regarding the history of a particular provision are of value:
“The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read.” 2
Applicant’s submissions
[11] The Applicant argues that he had been upskilled such that his skillsets included that of Social Media (SM) in addition to three other skillsets. Further, he worked overnight shifts four nights per week, commencing between 7:30pm and 9:30pm, and finishing between 6am and 8am, and the work was constituted by about half SM work and half taking inbound calls.
[12] The SM skillset required the Applicant to use the Lexer Customer Data Platform (Lexer) licenced to the Respondent’s client, to manage and interact with customers over the internet, through a bank’s social media page on Facebook, Twitter, or Instagram. Those customers were the four banks within the Westpac group of banks: Westpac, St George Bank (St George), Bank of South Australia (BankSA) and Bank of Melbourne (BoM) (collectively the Westpac Group).
[13] The Respondent provided outsourced SM services to the Westpac Group, from 8pm to 8am (NSW), Monday to Friday, and at all hours over weekends and on Public Holidays, at all times during the relevant period.
[14] The Applicant claims he was the only employee of the Respondent that was engaged in interactions with customers from BankSA or BoM at any time, other than those workers upskilled to SM (SM workers), and those interactions occurred via Lexer, in addition to outbound calls to an overseas customer requested by the customer through a social media webpage of a bank within the Westpac Group and brought to the attention of the SM worker via Lexer.
[15] The Applicant contends that he took diverse inbound calls as per the L2 description in the classification structure. The Respondent states that during the relevant period, all workers employed as L1 were either employed on a Westpac campaign or a St George campaign taking inbound calls, including SM workers. The Respondent contends that an L1 worker would not take inbound calls for both Westpac and St George (although this may have been trialled at some point). While on a SM segment during a shift, however, the SM worker interacted with customers from all four banks within the Westpac Group over the internet via Lexer.
[16] The Applicant further contends that he provided more diverse support from a wider customer base (in his case, the four banks) as opposed to two or three. He further went on to state that each bank within the Westpac Group had an internal resource interface called “Support Point” (SP). L1 workers only had access to the SP applicable to either Westpac or St George, depending on the campaign on which that worker was engaged. By contrast, the Applicant states, as he was an SM worker he had access to SP for all four banks within the Westpac Group, and was required to access those resources to provide general advice and guidance in responses to queries from customers via a bank’s webpage on Facebook, Twitter or Instagram.
[17] Another factor the Applicant pointed to was that he had a lower level of supervision. He states that SM workers were often left unsupervised by the Respondent and that for about 80% of the relevant period there was a SM Subject Matter Expert (SME) who was also for a brief time a Team Manager. That person worked overnights from Thursday to Sunday and provided SM supervision on those overnight shifts.
Respondent’s submissions
[18] The Respondent accepted that some of the indicative tasks in the classification structure may have been performed by the Applicant. However, the Respondent contends that taken as a whole, the tasks and complexity required in Level 2 exceeded those responsibilities and duties undertaken by the Applicant. For example, there were aspects of leadership, the exercise of discretion and judgement expected of a Level 2 that were not expected of the Applicant. On that basis, the Respondent contends that, when viewed as a whole, the Applicant would not be regarded as fully meeting the requirements under the Classification structure of a Level 2 employee. They further provided information to respond to each of the Applicant’s assertions through a spreadsheet as discussed in the following paragraphs.
Consideration
[19] An analysis was undertaken by the parties and the Commission which involved each party comparing their view of the tasks performed by the Applicant as against the disputed classification levels in an Excel spreadsheet. The parties could then respond to each other’s contentions.
[20] In the analysis, it became clear that the discretion and judgement required to undertake the role was viewed by the parties somewhat differently. The Applicant pointed to examples where he undertook indicative tasks that might be considered at the higher level. These tasks had minimal supervision and were not typically routine. He was of the view that there was some variance in the tasks and required some judgement and experience in determining the correct outcome. Furthermore, the Applicant outlined that much of his work was done with minimal or no supervision during overtime or evening.
[21] The Respondent highlighted that they did not regard the examples the Applicant displayed as meeting the requirements of discretion and judgement that the classification structure required. Further, the Applicant did not provide “multiple specialised services and complex sales and service advice for a range of products or services, difficult complaint and fault enquiries, deployment of service staff” (as required by the classification structure) and also did not hold a leadership function in respect of less experience staff.
[22] In respect of the indicative tasks, the Respondent stated that although the Applicant may have performed a small number of them, the clear majority of indicative tasks (including conducting a telemarketing campaign, processing high risk credit applications, resolving complex customer complaints and deploying customer service staff) were tasks that the Applicant clearly did not perform.
[23]Finally, the Qualifications indicia for an employee who meets the Level 2 classification is an “employee who holds a Certificate III in Telecommunications (Customer Contact) or equivalent”.
[24] The Applicant does not hold a Certificate III in Telecommunications (Customer Contact) or equivalent. Whilst this is not a prerequisite, it does provide some indication of the level of the role and the responsibilities.
[25] Having considered the analysis and submissions on this question, I find that although the Applicant may perform several tasks in the Level 2 classification and operate with somewhat limited supervision, when taken as a whole and looking at the level of judgement and decision making required of a Level 2 employee, the Applicant’s role does not perform the breadth and depth of tasks that would place him consistently at the level 2 classification.
[26] The answer to the question posed by the parties for arbitration is:
Does the role performed by the Applicant with the Social Media requirements result in the classification of the role being upgraded to a Level 2?
No
[27] Accordingly, I order that the application be dismissed.
DEPUTY PRESIDENT
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1 [2017] FWCFB 3005.
2 [1993] FCA 51.
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