[47] With the observations we have made regarding the construction of the Agreement, the second matter for determination is the proper classification of Mr Daly. The CPSU contended that if the Full Bench found error in relation to the construction of the Agreement (which it denied), the matter ought be remitted for reconsideration upon the correct construction of the Agreement.

1. We note that the Commissioner proceeded on the basis that Mr Daly's role was capable of meeting both of the disputed position descriptions, as evident by "Question 3" in the Decision. In this respect, the Commissioner relied in part on the distinction between "technical" and "non-technical" work[17] or "basic" or more "complex" work.[18] The Commissioner referred to Mr Daly's work as having a technical or information technology "flavour"[19], a matter challenged by Telstra on appeal.

2. However, that analysis was developed from a foundation that assumed a distinction between "technical" and "non-technical" work as a matter of construction. Here, "non-technical" "requires no understanding of telecommunications and information technology. It is a customer enquiry role focused on straightforward or relatively simple enquires".[20] As noted, we respectfully consider that was not the correct starting point.

3. Given that there were extensive factual findings made[21] - a significant number of which were substantially agreed or uncontested facts - we consider there is a sufficient basis for us to undertake the classification step in relation to whether Mr Daly's role was capable of being described by the Customer Support (Technical) classification.

[51] The following summary, drawn from the factual findings at paragraph [21] of the Decision, gives a sufficient description of Mr Daly's work. Mr Daly was first employed by Telstra in October 2016 as a "Premium Services" Customer Service Consultant. In about November 2019, his role was reclassified as a Complex Customer Service Specialist. At relevant times, Mr Daly worked at a Telstra contact centre in Townsville, Queensland. That centre provides customer support to consumers and small businesses. At the time of the dispute, Mr Daly was part of the Telstra Business Tech Services and Telstra Platinum teams in Townsville.

1. The types of calls Mr Daly received included him providing support to customers who call about:[22]

"1. sales, billing, order management and complaints;

1. NBN connections;
2. ADSL and land line faults;
3. cable faults;
4. basic email issues;
5. modem problems;
6. connecting to WiFi;
7. discontinued Telstra products;
8. setting up third party (in non-Telstra) devices, including phones, tablets, printers, faxes, scanners, modems and WiFi extenders, PCs/laptops and Bluetooth enabled devices;
9. set up and configuration of Virtual private network (VPN), port forwarding and remote desktop configuration;
10. security cameras systems and gaming consoles;
11. install or troubleshoot software such as Microsoft office suite and third party email clients (Thunderbird, em client, windows live mail, mac mail);
12. assist with installing and configuring anti-virus protection, PC optimisation

1. assist with setting up third party smart home devices (lights, sensors);
2. assist with business grade equipment such as WiFi enabled Eftpos machines."

3. We would also note that the Commissioner undertook a "virtual" inspection, where the Commission saw and/or heard five call recordings from Mr Daly and four call recordings from other Complex Customer Service Specialists selected by Telstra.[23] The Commissioner noted of these inspections that "[t]hat evidence went very much to the complexity of the work undertaken. Not all of it was of an information technology flavour."[24] While that finding is more in the nature of evaluative assessment, we have had regard to it.

[54] The CPSU placed reliance on the following jobs within the second sentence of the Customer Support (Technical) classification that Mr Daly was said to satisfy: "fault identification", and "product support and advice to other employees that is of a technical nature".

[55] As we have noted, the Customer Support (Technical) classification requires satisfaction of the second paragraph of the descriptor. The CPSU did not shirk from this requirement, but said it was satisfied because Mr Daly applied "practical skills and knowledge to the technical aspects of Telecommunications and Information Technology". The matters (other than billing etc) in paragraph [21](t) of the Decision, extracted above, were primarily said to be indicative of those matters.

1. Other factual findings were made about aspects of Mr Daly's role. Specifically, Mr Daly:[25]

"a) was not required to have any particular skill or qualification for the role,

1. did not receive any recognised qualification after the training provided by Telstra,

1. experienced a high degree of on-the-job learning,

1. is, for the most part, provided with scripts to assist answer customer enquiries,
2. is not mandated to use scripts,
3. does not always use scripts because of his depth of knowledge and experience,
4. has no autonomy over the types of calls he receives,
5. exercises initiative in a client centric way aimed at resolving customer queries. For example he sometimes will "Google" answers for customers. Telstra does not require him to go above and beyond like this. However, they also have not instructed him not to do it and derived a benefit from Mr Daly's initiative."

1. The additional matters just set out are significant. They show that the role required no particular skill or qualification about technology at all prior to commencement. For the role, induction training was provided by Telstra, being three weeks for staff working on Telstra Platinum calls and four weeks for Telstra Business Services.[26] A significant focus on that training is how to use Telstra scripts, knowledge databases and tools.

[58] In these circumstances, we do not consider that the role requires application of practical skills and knowledge "to the technical aspects" of telecommunications and information technology.

[59] The work of the role does not operate within any "discipline", let alone any "specific discipline" - no qualification is required to perform the role nor is any qualification or certification obtained following induction training. Similarly, the focus of the role does not operate within an "area of technical work" as that term is construed.

[60] This does not belie that there may be real complexity associated with some customer calls that are received, or that the answer to the customer's problems will not always be found in the Telstra scripts and tools. Our conclusions also do not detract from the fact, as the Commissioner found, that Mr Daly was clearly proficient at his job.

[61] However, we do not consider that Mr Daly's role of Complex Customer Service Specialist meets the definition of Customer Support (Technical). It follows that given the binary classification options advanced by the parties, which we accept was appropriate, Mr Daly's classification is Customer Service (Non-Technical).

[62] It is not necessary to consider grounds 8 - 12 of the amended notice of appeal nor to remit the matter.

[63] We order as follows:

1. Permission to appeal is granted.

2. The appeal is upheld.

3. The decision of the Commissioner issued on 3 February 2022 ([2022] FWC 229) is quashed.

4. The answer to the question asked by the parties for arbitration is "No. Mr Daly is classified as "Customer Service (Non-Technical)."

M Tamvakologos of Seyfarth Shaw for the Appellant

[1] Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47; (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ. (Coal and Allied Operations Pty Ltd).

[2] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]- [27].

1. [3] Decision, [11].
2. [4] RACV v AMWU [2014] FWCFB 1629 at [4] - [6]; The University of New South Wales v National Tertiary Education Industry Union [2022] FWCFB 22 at [15].
3. [5] Decision, [30].
4. [6] Decision, [29] and the authorities cited therein.
5. [7] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) v Berri Pty Ltd [2017] FWCFB 3005 at [114].
6. [8] The Dictionary specifies these as Australian Workplace Agreements entered into prior to 28 March 2008 and Individual Transitional Employment Agreements entered into between 28 March 2008 and 31 December 2009.
7. [9] Decision, [21](a).
8. [10] The capitalisation 'Telecommunication and Information Technology' appears in the Agreement. It does not appear to be a defined term in the Agreement.
9. [11] Decision, [66].
10. [12] As to which, see Decision, [36] - [56]
11. [13] As to which, see Decision, [57] - [62]
12. [14] As to which, see Decision, [63] - [84]
13. [15] See also Decision, [79], which states "But the Agreement does not divide the work between "basic" and "complex". It divides it between "Non-technical" and "Technical"."
14. [16] Decision, [39] - [53].
15. [17] Decision, [53].
16. [18] Decision, [48] - [49]. CPSU Appeal Submissions, [18].
17. [19] Decision, [82].
18. [20] Decision, [53].
19. [21] See Decision, [21](a) - (ff), [59] - [60].
20. [22] Decision, [21](t). See also Decision, [59].
21. [23] As summarised in paragraph [15] of CPSU submissions at first instance, located at paragraph [34] of the Decision. The CPSU's summary does not appear contentious.
22. [24] Decision, [62].
23. [25] Decision, [60].
24. [26] Decision, [21](u) - (v).

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