PN1

DEPUTY PRESIDENT GOSTENCNIK: Yes, good morning. Mr Tamvakologos, you are appearing for the appellant?

PN2

MR M TAMVAKOLOGOS: I am, thank you, your Honour.

PN3

DEPUTY PRESIDENT GOSTENCNIK: Yes, good morning. Mr Guy, you are appearing for the respondent?

PN4

MR A GUY: Yes, I am, your Honour, instructed by my solicitor, Mr Barlow.

PN5

DEPUTY PRESIDENT GOSTENCNIK: Yes, good morning. Permission to each party to be represented by a lawyer has already been granted.

PN6

Can we deal, firstly, with the question whether leave to amend the notice of appeal should be given. I note in correspondence to my chambers, Mr Guy, that there was an objection to the amendment. Is that objection pressed?

PN7

MR GUY: It is, your Honour. If you wish me to address the Bench on that?

PN8

DEPUTY PRESIDENT GOSTENCNIK: Yes, certainly.

PN9

MR GUY: Thank you, your Honour. The objection really lies in the fact that the amendment was made late in the piece; it was a week out from the hearing. As I understand it, no additional submissions or any indication of where the appellant is seeking to go in respect of 9(b) have been provided. That puts myself and my client at a disadvantage as to what the nature of that appeal point is and how that appeal point is to be prosecuted. It is on that basis that the objection is made.

PN10

DEPUTY PRESIDENT GOSTENCNIK: Mr Guy, presumably any disadvantage that you might suffer can be ameliorated by allowing, to the extent that it might be necessary, the respondent to file any further written submission at the conclusion of this hearing once you have heard what the appellant has to say about the matter.

PN11

MR GUY: Yes, that would be an appropriate course. I hear what your Honour has to say on that point.

PN12

DEPUTY PRESIDENT GOSTENCNIK: Mr Tamvakologos, is there any objection to that course, if it's necessary, granting leave to the respondent to file a short written submission in response to any matter that might - Mr Guy might, of course, require some further instructions based on matters that you might raise in the course of oral argument.

PN13

MR TAMVAKOLOGOS: Your Honour, not at all. May we say that in the email in which we filed the amended notice, we did seek to put what we regard as the substance of the argument that will be raised in relation to 9(b) so as to eliminate any prejudice that the respondent would suffer, but, if, at the conclusion of the hearing, the Commission considers it appropriate from a procedural fairness perspective to give Mr Guy a further opportunity to provide something in writing, we have no issue.

PN14

DEPUTY PRESIDENT GOSTENCNIK: Yes, I am grateful for that. We will allow the amendment on the basis that we have discussed.

PN15

I should indicate to the parties that we have also had the opportunity to read the written submissions that each party has filed.

PN16

MR TAMVAKOLOGOS: Thank you.

PN17

DEPUTY PRESIDENT GOSTENCNIK: Yes?

PN18

MR TAMVAKOLOGOS: Your Honour, I will take that as my cue and say that, subject to any contraindication from the Full Bench, I propose to deal with our submission on the appeal in the following sequence.

PN19

First, we will address the evidentiary basis the Commissioner relied upon to make his decision, and the basis which remains available, we say, to this Full Bench to substitute its own decision should you be persuaded that our appeal has merit. This is a case where the Full Bench is as equally well-equipped as a single member would be to analyse and decide the matter dispositively, and I will come back to that.

PN20

The second point in the sequence is to explain as best we can why we say the Commissioner erred in reasoning and concluding as he did in a manner that should not be permitted to stand.

PN21

The third and final point will be to address the issue of permission to appeal and why, in our submission, plainly with respect, permission ought to be granted and the Full Bench ought to exercise its powers upon a rehearing, having been satisfied of at least an error, to decide the matter to finality.

PN22

Before I go into the substantive matters, the Full Bench should have before it two briefs. One is a case list that we filed and served, I think yesterday morning, and the second is an appeal book, also filed and served yesterday morning, which contains a small number of additional documents to the original appeal book which we thought appropriate to provide for convenience. Can I just confirm that each member of the Full Bench has both of those bunches?

PN23

DEPUTY PRESIDENT GOSTENCNIK: Yes, we do. However, it's just unfortunate, given the extension of the index, the pagination of the old to the new with the additions didn't marry up. I see the amendments that were made, or the additions that were made; it's just that, as a consequence of the additional documents that have been provided, what was a two-page index became a three-page index and so the pagination - it wasn't a simple task for those luddites like me, who print out the thing, to simply add the additional documents at the end. In any event, no problem.

PN24

MR TAMVAKOLOGOS: I do apologise for that, your Honour.

PN25

DEPUTY PRESIDENT GOSTENCNIK: That's all right.

PN26

MR TAMVAKOLOGOS: My instruction was that the pagination should remain undisturbed and that we should just simply tack onto the back the additional documents. I apologise if that's not what has happened. In any event, I will do my best to give accurate cross-referencing.

PN27

There's a couple of matters that it's important for us to mention at the outset because they are rather sharp matters of divergence between the appellant and the respondent as to how the Full Bench should analyse and determine this appeal.

PN28

The first point is this. At paragraph 7 of their written material, the respondent provides that for permission to appeal to be granted, we must establish that the appeal is in the public interest, and that would be right if this was an unfair dismissal appeal under section 400(1) of the Fair Work Act; but it is wrong in this kind of appeal, which is governed by subsection (2) of section 604, which contains an express limitation on when the Commission may grant permission. The section does provide that it is mandatory for the Full Bench to grant permission if it's in the public interest, but even if you didn't discern any public interest consideration, there is otherwise no express limitation.

PN29

There is no need for you to flick through to this, but the law on this is plainly stated at paragraphs 14 and 15 of the Simplot decision, which is case number 5 in our list of authorities at casebook 20, where the Full Bench there, headed by the President, Ross J, provides, at 15:

PN30

Other than the special case in subsection (2) of section 604 - - -

PN31

DEPUTY PRESIDENT GOSTENCNIK: Mr Tamvakologos, you don't need to trouble us with this.

PN32

MR TAMVAKOLOGOS: Thank you, your Honour. I will close the point simply by saying that we will, at the conclusion of our address, make some public interest points. We will also put squarely to you that this is a decision that is attended with sufficient doubt to warrant its reconsideration and, for that reason, permission ought be granted.

PN33

Let me get into the substantive issues by way of introduction. The only question in this appear is whether the Commissioner correctly interpreted each of the two classifications in issue in the matter. There are two places to find those classifications. They both appear in the Dictionary to the Telstra 2019 Enterprise Agreement, which is at court book 1133, and they are also correctly copy typed at paragraphs 2 to 5 of Johns C's decision at court book 5.

PN34

May I say, just as a matter of convenience, given the nature of the appeal, there will be a fairly constant flicking around between the terms of the classifications and other material which I will take you to to attempt to persuade you that Johns C misunderstood the interpretative task. I think it will be convenient for the Full Bench if you have a copy of the two classifications somewhere that is separate from the decision so that, as we flick through the different pieces of paper, one doesn't get lost. Unfortunately, this is a case where there is quite a lot of material.

PN35

The Commissioner, in answering the question for arbitration, stated at paragraph 11 of the decision:

PN36

Should Mr Benjamin Daly, who performs work for Telstra as a Complex Customer Service Specialist, be classified as customer support (technical) under the Telstra EA -

PN37

which I will refer to in that way for shorthand, answered the question 'Yes'. Our submission is that the answer is 'No' and that the correct outcome is that Mr Daly, as a CCSS employee, is correctly classified as a customer support (non-technical).

PN38

Now, we say that not only did the Commissioner wrongly interpret both classifications as a matter of law, he also made a number of errors of fact, which could only be described as material, which he then applied to the misinterpreted classifications in order to reach the answer that he did.

PN39

At this point, if the Bench pleases, it's germane to mention the second major point of difference between the appellant and the respondent about how you should treat this appeal. I said that there were two. The second point concerns the standard of review to be applied. The respondents says, in its written material, in relation to a number of errors that we point to, and including notice of appeal errors 1 to 4, which they refer to at paragraph 25 of their material, and also ground 7, which they refer to at paragraph 26, and they say this, and I'll quote:

PN40

The discretion exercised by the Commissioner does not attract error sufficient for the Full Bench to intervene.

PN41

There are then numerous references in their written material to the case of House v The King, which, of course, concerns appeals of a discretionary error.

PN42

As this Full Bench will probably understand, the interpretation of an enterprise agreement, and particularly the interpretation of classifications, which are, by their nature, definitional within an enterprise agreement, is not a discretionary decision; there is no discretion at all in that task. It is not the kind of exercise that is being described in cases like Coal & Allied where the decision-maker has latitude about the choice of the decision to be made. There is a normative standard that the Full Bench must apply of right or wrong, correct or incorrect. There is no discretion, and the defence of our appeal, which points repeatedly to House v The King, with respect, is wrong. You ought to apply the same test that a court would apply in an appeal from this forum to the Federal Court on a judicial review. If you need any convincing about that - - -

PN43

DEPUTY PRESIDENT GOSTENCNIK: Well, this is described in the decisions of the Commission as the 'correctness standard'.

PN44

MR TAMVAKOLOGOS: Correct, your Honour. Just by way of reference, paragraph 16 of Simplot, where the Full Bench, again headed by the President, says:

PN45

It is common ground that the decision subject to appeal relates to the proper construction of a provision of the Simplot Agreement and, accordingly, the issue on appeal is whether the interpretation adopted by the Deputy President was correct. The appeal principles relating to discretionary decisions do not apply.

PN46

You are quite right, your Honour, it's referred to in the CSBP case at case list 6 of our materials - I won't read it - at paragraphs 23 and 24, as the correctness standard: right, wrong, correct, incorrect.

PN47

DEPUTY PRESIDENT GOSTENCNIK: Can I just ask a question on that to clarify, which is paragraphs 23 to 25 of the respondent's outline, is that, as I understood it, they were directing the House v The King proposition as to factual findings made in relation to the description of Mr Daly's job, not necessarily the question of construction of the agreement?

PN48

MR TAMVAKOLOGOS: I might answer that in two ways, your Honour. The first is to say we didn't read their submissions as limited in that way. Can I take you in that sense to paragraph 36 of the respondent's submissions. Although it sits down the batting order in terms of a ground of appeal, this is quite a critical ground of appeal concerning the classification mapping as between the Telstra Award, which, somewhat uniquely, is an enterprise award made specifically for this enterprise, and I will come back to this, and its mapping to the Telstra Agreement, which we say was a critical context which the Commissioner overlooked.

PN49

What the respondent says at paragraph 36 is that, even if it is found that the Commissioner has not considered the award, any error occasioned by the failure is not a House v The King error. So, there, at paragraph 36, in terms, the respondent is not referring to a fact, it's referring to an issue of construction. This is squarely Berri at paragraph 114, which we will come to, which is the context of the agreement, notorious facts known to the parties, common assumptions, and it is squarely raised as a defence point on an issue of construction, not only an issue of fact.

PN50

The second answer is that, even where the respondent were to raise this as a defence point on an issue of fact, the facts that the Commissioner found in this case, that is, what does a CCSS do for a living, mainly, for reasons which I will come to very shortly, relying on what was an agreed statement of facts - many of the facts as to what Mr Daly did were the subject of agreement - that is also not an issue where the tribunal or the Commissioner necessarily has latitude.

PN51

May I move now to the first part of our submission, having made the point about the correctness standard. This is the first part of our submission concerning the evidentiary basis of the decision made by the Commissioner which we say that the Full Bench should have regard to and rely on.

PN52

The body of evidence put forward by the respondent at trial to meet their onus of proof at first instance comprised the following: the evidence of Mr Daly himself in documentary form, that is, a statement and a reply statement, and, of course, the answers that he provided to questions in the witness box; an agreed statement of facts, which I will refer to in a moment; and, thirdly, what is listed at exhibit 34, case book 6, as a sample of recorded customer experiences.

PN53

I understand the Full Bench has been given electronic access to these recordings and you will have perceived, if you have had occasion to listen to them, that the recordings of the calls that Mr Daly and some of his colleagues performed are just that, they are the calls, and they need to be married up with the transcript of the proceeding between court book 66 and court book 100, and this is during the early part of the hearing, the first hour, where the recordings were listened to by the Commissioner and there was comment by Mr Daly.

PN54

Now, ultimately what we say about these recordings is that they do provide some useful colour and movement in the sense that they show visually what is otherwise described verbally in the materials, but they do square up very well with what is otherwise contained in the agreed statement of facts.

PN55

I think someone took themselves off mute. Was there a question? No?

PN56

Can I please ask you to turn now to the agreed facts, which are at paragraph 21 of Johns C's decision at case book 7, and I appreciate what His Honour Deputy President Gostencnik said about having read all of this, but I do think it is important to emphasise particular aspects. Paragraph 21 starts with a description of Telstra, and although it's well-known, it becomes important later that the business of Telstra, the core business, is that of being a telecommunications and technology company. There are then some descriptions of Mr Daly's role and its changes over the years. Then can I ask you, please, to go to paragraph 21, point (k):

PN57

Mr Daly works at a Telstra contact centre in Townsville -

PN58

'contact centre' is, I think, the modern description of a call centre -

PN59

which provides customer support to consumer and small business customers.

PN60

And there are, relevantly, two services which Mr Daly operates as part of, and they are Business Tech Services and Telstra Platinum.

PN61

You will then see, at paragraph (n), a description of the services. This becomes important in relation to some of our later grounds of appeal:

PN62

Telstra provides a range of customer support to residential and business customers -

PN63

in relation to billing, technical support, plans, services, products. The Telstra Platinum package is for residential customers and the Business Services package is for small businesses, and these are 24/7 services.

PN64

Essentially, what one takes from that is that there is a service available from Telstra, packages bought by residential or small business customers, where they can call a contact centre employee, such as Mr Daly, who is a frontline, and receive assistance.

PN65

Then we go to (o), which provides that, in particular in the Townsville centre, because not all contact centres are the same, employees take customer service enquiries of various kinds relating to those two services. A customer will call in, they will answer some prompts, they will be put in a queue, and then there will be an allocation to customer support staff, and the relevant queue depends on the on-the-job training that the particular member of the support staff has received.

PN66

Then can I please take you to (s). I don't skip over others because they are immaterial; all of these agreed facts matter, but there are some which are more material to the disposition of the appeal. At (s), Mr Daly performs work as a complex customer service specialist; he takes inbound calls and makes outbound calls to assist customers. Now, this is important: Mr Daly spends his working life in a contact centre, mainly receiving inbound calls from customers that are allocated to a queue and who come through to him or one of his colleagues in Townsville, and also makes outbound calls, where that is necessary, to assist those customers.

PN67

Now (t), for reasons which are quite obvious, is critical. That is the types of calls that Mr Daly receives in his provision, that is, in his own personal carriage of his work tasks in dispensing or administering his own skills in each of the two services, and they are the calls about - and you can see there (1) to (15) - sales; billing complaints; connecting to NBN; basic email issues; connecting to Wi-Fi, et cetera, et cetera. Absent from paragraph (t), and absent anywhere from the evidentiary record that the Full Bench can have regard to for reasons which I will mention in a moment, is any time allocation or time audit relating to the time spent on particular tasks.

PN68

In our primary submission, that doesn't matter much, and I will explain why in a moment, but I just pause now to make that point.

PN69

Then we go to (v), and this is also critical and, in our submission, it was mentioned in passing but largely overlooked by the Commissioner. There are three weeks of training for customer support staff who work on Telstra Platinum calls - that's the residential support line - there's mandatory induction training, training on the products, the Telstra products, that are supported for customers and how to use Telstra's systems - that's computer systems and I don't think there will be any disagreement about that - and - this is important - how to use the scripts' workflows and knowledge database for walkthroughs.

PN70

Mr Daly, and other employees in his classification - that is CCSS - received four weeks of training if they are also going to do the types of Business Services work. That's because they need to know the systems for business customers, and that training - and this is critical - that training focuses on the scripts to follow and the knowledge databases or walkthroughs and guides.

PN71

The Full Bench may not understand at the moment, but we will come back to this, what is meant by the term 'walkthrough'. Perhaps, as is suggested by the language, a walkthrough is a checklist of sorts or a flow map of sorts, like a script, but not necessarily completely verbal, which allows a CCSS employee, who is asked a question by a customer or who is resolving a complaint raised by a customer, et cetera, et cetera, whatever the genesis of the discussion may be, to essentially, in a guided way, like a train on train tracks, essentially move through the material and guide the customer to a successful resolution.

PN72

There are circumstances, and I will come back to the evidence on this, where there may not be a script or a guide or a walkthrough that gives the relevant guidance to the CCSS, such as Mr Daly, and, in those circumstances, the evidence was that the answer should be: 'That is not a product that we support, that is not a service that we provide.' I will come back to that.

PN73

Can I please ask you to look at (z). This is really what one will discern from watching the call recordings that are exhibit number 34, and that is that, on first talking to the customer, CCSS employees listen to the kind of problem being experienced and then access available resources as provided by Telstra: not provided by anyone else, not provided autonomously by the employee themselves, the resources provided by Telstra, a fact utterly overlooked by the Commissioner.

PN74

They access a dashboard home page, which includes links to various tools and database items. They differ slightly, depending on whether it's a residential or a business customer. This is quite important. For residential customers, the platform is called Laureate; for business customers, it's Business Services. Then, within those platforms, if the Full Bench pleases, there are a range of tools that have been the subject of the few weeks of training at the commencement of the employment: NATAMA; the NBN portal; some assurance tools, et cetera.

PN75

So, at (z), we have really quite a claim and, importantly, agreed - these are agreed facts - an agreed description of how Mr Daly and other CCSS employees perform their work, and what one should discern so far from the agreed facts, in our respectful submission, is that it's an important job, it interfaces directly with customers. In fact - and this is quite material - the CCSS employee does nothing else. The job is to interface with the client's customers, to listen to them carefully and empathetically and to assist them with the matters that are listed in (t), using the scripts, guides and walkthroughs and the other resources mentioned at (z).

PN76

I will then come to the last part of the evidentiary basis in terms of the agreed facts, and that is (aa) and (bb), and this is another aspect about which - and I am providing some signals here to points of appeal which I will flesh out more fully, albeit briefly, later - Johns C relied very heavily, it seems, on printouts from the Telstra website about Platinum and the Business Tech services to say, well, those printouts from the website used words like 'technical' and 'technical support' and that should be - the Commissioner didn't say this, but, in our submission, he clearly held it by his reasoning and outcome - because the website uses words like 'technical assistance', 'technical support', 'technology' and its employees, like Mr Daly and other CCSS employees in Townsville who provide these services, the words 'technical', 'technical support' on the website should, as a matter of interpretation, cognate with the word 'technical' in the relevant classifications, about which I have yet said nothing, but will say a lot more very shortly.

PN77

Now, there's two things to say about that. Firstly, as a matter of interpretation, that logic could not be more flawed. One cannot translate something on a website which uses the word 'technical' and, of necessity, say that that means the same thing in a classification, because one needs to read the whole of the classification in its proper context. I will come back to that.

PN78

The second point, though, which is important to understand for present purposes, is that Johns C held - this was not open to him to hold - that it is Mr Daly and other CCSS employees like him who administer the Telstra Platinum and Telstra Business Tech services which are referred to throughout the evidence and referred to on the website printouts.

PN79

Now, let's look at what the agreed facts (aa) and (bb) say about that. Complex NBN or any network issues that can't be resolved by CCSS employees:

PN80

are escalated to higher level 2 staff or faults are raised to NBN for them to resolve.

PN81

One can take the tribunal version of judicial notice, quasi-judicial notice: NBN is not Telstra. They are different organisations; one should appreciate that. So, if it's an NBN issue, it's escalated to them to resolve. That is an agreed fact. These employees, that is the employees who receive the escalation, have higher level system access and would take full control - full control - of the escalation, once received. They are accountable for diagnosing network level problems.

PN82

Then (bb):

PN83

Complex issues that are not network issues usually relate -

PN84

to different things. Firstly, the customer's local network, that is, something in their home or their business. Now, there are different ways of dealing with that problem. Non-Platinum-trained staff refer the customer to Telstra Platinum. There may be some troubleshooting. For example, and I'm interpolating here, but I can justify this later, listen to the customer: 'Is your modem switched on? Perhaps you should reboot it. Are the lights on? Okay, it's not a modem issue, but is it something else?' That kind of thing; that's the troubleshooting.

PN85

If the customer is unable to follow the troubleshooting, and you have all seen examples - sorry, I will withdraw that. You will hear an example of that on calls where sometimes the customer might be elderly or otherwise simply just not follow the scripting or the guidance that they are being given, for any number of reasons, and someone from Telstra will attempt. That is a field technician.

PN86

Now, critically, that is not - and I don't take it that this is disputed - a field technician is not a CCSS employee like Mr Daly, who is at the frontline in the call centre. A field technician is someone that attends the home or the business premises, and all the Full Bench needs to understand about that is that is a different role to CCSS. They are sent out, and, of course, they pay a fee for that.

PN87

Where the issue - and this is a third possibility - where the issue is determined to require a physical repair or an internal component replacement, the customer is referred to an external third party contractor, and if a CCSS could not resolve an issue which relates to a customer's issue with their connection or devices or software, depending on the nature of the issue, they would help them by recommending a local IT or software company.

PN88

Now, (aa) and (bb), if we persuade you on the appeal, will feature heavily in your analysis for a number of reasons. Chief among them is this: Johns C was wrong - and I will take you to the decision about this - to say that it is employees like Mr Daly and other CCSS employees like him who administer the service. I'm sorry if I'm pointing out the obvious, but the service is not the same thing as the job that Mr Daly performs. There is an enormous distinction between the two. The service is administered by Mr Daly and other CCSS employees - that much is accurate - but it is also administered by all of the other employees, Telstra or non-Telstra, but we are concerned with the Telstra staff, who are referred to in the agreed facts (aa) and (bb), and it was not open to the Commissioner to find otherwise.

PN89

At the outset, it is also important to mention, before I launch into the grounds of appeal proper, that there is one aspect of Mr Daly's evidence which was not accepted by the Commissioner, and this is an evidentiary finding about which no complaint is made in the respondent's written material on this appeal, in our respectful submission, properly so, but which has profound consequences for the disposition of the appeal.

PN90

You will see at paragraph 17 - if I could ask you to turn to that, please - of Johns C's decision - this is at court book page 6 - excuse me for one moment - that the Commissioner lists, in a routinised way that judges often do, the exhibits that he received, and you will see that struck out from the evidentiary record is what was described as annexure G, which was exhibit number 22. I will put the reference on the transcript - you don't need to go to it now - annexure G is a 28-page document that one finds between court book 353 and 381. That was stricken from the record.

PN91

That document and references to the conclusions drawn from it appear throughout Mr Daly's written witness statement and, indeed, his evidence in the witness box, but are not part of the record on appeal. Now, the Commissioner explains, at paragraph 61 of the decision - please turn to that - what he says about annexure G, and he says at that paragraph 61, court book 50:

PN92

Mr Daly sort -

PN93

I think there's a little typo there -

PN94

to rely upon annexure G. In coming to this decision, I have not relied upon annexure G. It lacked the necessary forensic value.

PN95

Now, I am prepared, if any member of the Full Bench wants me to, to explain why it lacked the necessary value, but I don't propose to do that in circumstances where this doesn't appear to be in issue. What I will say about annexure G is that, when one reads Mr Daly's written statements and the evidence that he gave during the hearing, annexure G was material to the respondent's case, and can I please just briefly describe what it was.

PN96

Annexure G was a document whereby Mr Daly had, over a six-month period, it seems during work hours, kept something of an audit trail of the types of calls that he received, and he provided, in his statement, his own opinion, that is his own taxonomy, of what 'technical' means, based on his own definition, which we say the Commissioner properly excluded, and briefly here, and this is why I am labouring this, the time spent on different types of calls as a percentage of the total amount of time he spent on different types of calls.

PN97

Now, the Commissioner properly discarded this annexure based on its lack of value. There were, frankly, a litany of problems with this evidence. It was full of opinion, it used definitions not used in the agreement, but also the evidence was - and this came out of Mr Devereux's cross-examination - that, in preparing his time audit, Mr Daly had, in fact, not accounted in his analysis for hundreds of telephone calls which, on his own analysis, would have met the definition of non-technical; nor had he accounted for the fact that was established in evidence that about 41 per cent of his time is down time, that is, time spent sitting and waiting for a customer to call.

PN98

DEPUTY PRESIDENT GOSTENCNIK: Can I just ask a question about that?

PN99

MR TAMVAKOLOGOS: Of course.

PN100

DEPUTY PRESIDENT GOSTENCNIK: Paragraphs 57 to 62 of the decision are under the heading 'Question 2 - What does Mr Daly do?' Then 59 sets out a list of matters that he takes customer calls about and, at 60, are some factual findings of some further matters, including the issue about Googling answers to questions, which seem to have a fair bit of emphasis throughout the hearing.

PN101

MR TAMVAKOLOGOS: Yes.

PN102

DEPUTY PRESIDENT GOSTENCNIK: But there is no, as I see it in here, there's no description of a breakdown of - for either party - of the temporal aspects for - I accept what you say about annexure G, because annexure G is opinion, but, equally, if annexure G is out and you're about to tell me he spends 41 per cent of time in down time, where is that in the judgment?

PN103

MR TAMVAKOLOGOS: I will certainly come back to that in the evidence. Johns C, for reasons unknown to us, didn't refer to it in his reasons, but let me please answer your Honour's questions specifically about the issue of time spent on particular tasks.

PN104

DEPUTY PRESIDENT GOSTENCNIK: That's fine, and I suspect I have interrupted your flow anyway, so I will let you get back to it.

PN105

MR TAMVAKOLOGOS: Not at all, your Honour. In fact, you have put your finger on an issue that's critical. I don't think it's controversial to say that the onus of proof squarely below was on the union to show that Mr Daly had been wrongly classified in the customer support (non-technical) classification and should be correctly classified as customer support (technical). They carried that onus.

PN106

Now, they don't carry it any more; the onus is on us now to show error, but they did carry it below, and it was necessary for the respondent below to put in evidence material, let me use the phrase 'of sufficient quality' - if we were in court, I would say 'admissible evidence' - at least of sufficient quality that, if he wanted to rely on a case that said, 'Some of my tasks fall within the customer support (non-technical) but some of my tasks fall within the customer support (technical), what is referred to in the common law as a mixed function case, if that was their case, it was incumbent on them to put forward evidence, in the myriad of ways that one can put forward evidence - there's not only one way to do it - that Johns C could have regard to.

PN107

The fact of the matter is that they failed. The respondent failed to put forward material of a time audit nature. That is material, in direct answer to your question, your Honour, if you go, for example, to paragraph 73 of Johns C's decision at court book 51, please. I'm sorry, that's the wrong reference.

PN108

DEPUTY PRESIDENT GOSTENCNIK: Fifty-two?

PN109

MR TAMVAKOLOGOS: No, no, paragraph 73.

PN110

DEPUTY PRESIDENT GOSTENCNIK: Yes, at court book 52?

PN111

MR TAMVAKOLOGOS: Yes. I'm sorry, your Honour, we do have that issue. Thank you. Johns C says:

PN112

Clearly some of the calls taken by Mr Daly are 'Non-technical'. It was an agreed fact that he takes calls about sales, billing, order management and complaints. These tasks clearly fall within the 'Non-technical' descriptor in the Agreement. But it is a minor part of his role.

PN113

Now, this is captured by 10(e) of our notice of appeal. It was not open to the Commissioner to make that finding. He needed, to make a finding of that kind, time audit evidence, which he himself rejected in terms of the evidence that was put forward. The Commissioner cannot, on the one hand, reject the time audit evidence that was contained in annexure G and all of the conclusions and references to annexure G, which you will see scattered throughout Mr Daly's oral evidence, but then make findings about minor or major aspects. Now, what this really boils down to - - -

PN114

DEPUTY PRESIDENT GOSTENCNIK: Sorry, before you go on, Mr Tamvakologos, can I just ask you to have a look at appeal book 354 and onwards.

PN115

MR TAMVAKOLOGOS: 354, excuse me, I am just finding that. Yes, your Honour?

PN116

DEPUTY PRESIDENT GOSTENCNIK: That's the annexure G, is it not, that shouldn't be in the appeal book?

PN117

MR TAMVAKOLOGOS: I see what you are saying, your Honour. You are quite right, it doesn't formally form part of the record and it shouldn't be there.

PN118

DEPUTY PRESIDENT GOSTENCNIK: All right, so 354 through to - it's quite a lengthy document.

PN119

MR TAMVAKOLOGOS: It is.

PN120

DEPUTY PRESIDENT GOSTENCNIK: Through to 382?

PN121

MR TAMVAKOLOGOS: Your Honour, may I say thank you for that, and I apologise that that document is there, and your Honour has reminded me of an important point, which is perhaps an injunction, if I may. When the Full Bench analyses what to do with the case, and when you read the evidence of Mr Daly that he gave in the hearing, it is important to always bear in mind that when Mr Daly either refers expressly to annexure G or to evidence of a time audit nature, which could only be derived from annexure G because there is no other evidence that the respondent can point to, no other evidence of a time audit nature that forms part of the record, that that material should be disregarded.

PN122

That leaves then two categories of evidence that - - -

PN123

DEPUTY PRESIDENT GOSTENCNIK: Sorry, just before you go on, Mr Guy, you agree that annexure G ought be removed from the court book?

PN124

MR GUY: Yes, your Honour.

PN125

DEPUTY PRESIDENT GOSTENCNIK: All right, we will remove pages 354 through to 382 from the court book. Yes, sorry, continue.

PN126

MR TAMVAKOLOGOS: Not at all. The other two categories of evidence before the Commissioner, I said at the outset there were three categories of evidence that Mr Daly put forward: there were statements and oral evidence; there was a statement of agreed facts, and there were call recordings.

PN127

Now, in terms of the other two categories of evidence, the agreed statement of facts and the call recordings - and I'm sorry if I'm making a point that's obvious - they say nothing at all and could not constitute neither primary evidence - sorry, they cannot constitute evidence or be described as primary evidence from which an inference could be drawn concerning the time spent by Mr Daly responding to different types of calls.

PN128

What one is then left with really is the agreed statement of facts, which is a checklist of tasks, and the recordings, which are a small, but useful so far as they go, sample of the work of a CCSS employee.

PN129

That brings me to my final point on this, which is that we reject utterly the criticism made at paragraph 22 of the respondent's submissions - this is all in aid of a House v The King point, which is a different issue, which I have already addressed - paragraph 22 of the respondent's submissions, that the Commissioner considered the tasks conducted by Mr Daly, the nature of those tasks and the time spent completing those tasks. The respondent can point to no evidence, other than annexure G and what has been derived from it, about the time spent receiving different types of calls and, as I said at the outset, that was the respondent's evidentiary case at its highest.

PN130

The Commissioner erred in relying on that material, as he must have at paragraph 73, and, as we say, this is an important component of the respondent simply failing in the evidentiary case that they put forward initially. I will explain that a bit further when I get to - as I will right now - what I will describe as the specific errors.

PN131

Prior to taking you to the relevant classifications that are in issue here, may I quickly make one clarification which I think is relevant. Our case on appeal, as was our case below, is that this case is not, within the meaning of cases like Watson, which I will read to you in a moment, a mixed functions case.

PN132

The Commission is often confronted with quite difficult scenarios. For example, there is a particular job and there is more than one award, sometimes even more than one enterprise agreement, that can conceivably apply to the job, and that is because there are some parts of the job that fit into one classification and other parts of the job that fit into another, and there are principles that guide courts and tribunals to deal with that kind of mixed functions case, and I will come to them.

PN133

My point, for the moment, is our primary argument is that this appeal can be, and should be, disposed of in our favour, not as a mixed functions case. We say that there is only one classification that can conceivably capture the work here, properly interpreted, and that is the customer support (non-technical) classification, and we will put to you why, in a moment, neither Mr Daly nor any CCSS employee, but let's focus on Mr Daly, simply does not qualify, does not meet the essential requirements of the customer support (technical) classification.

PN134

Now, one doesn't need to descend into Watson, or cases like it, which deal with principles of predominant purpose. If you are convinced by us on our primary argument, having regard to the Berri principles, and cases like Berri, which guide the interpretive task, there is really only one classification which applies here.

PN135

If you do not agree with us on that, our alternative argument, if you find that this is a mixed functions case and you need to be guided by cases like Watson, which is at case list 3, that it's only a mixed functions case and that Mr Daly could fit into one, but he could also fit into the other and it's a question of, to use the vernacular, perhaps not precisely, used in the cases, what's the primary function of the employment, what's the primary purpose of the employment, what is the principal aspect of the employment, in our submission, plainly, the principal aspect of the employment, the principal (audio malfunction) and activity which Mr Daly performs, captured squarely by the customer support (non-technical) classification, is to manage or undertake customer enquiries, typically, but not exclusively, relating to the matters that are mentioned in that classification.

PN136

That is his job, and not - so this is the alternative - the predominant purpose is not to undertake the activities contained in the customer support (technical) classification, and I will make that point good, if I can, in just a moment.

PN137

Now, can I say one thing about that, and it's an unsatisfactory aspect of the reasons for decision, and I don't mean to be disrespectful to the Commissioner, but it is unsatisfactory that it's not entirely clear, based on what the Commissioner said in the decision, whether the Commissioner himself regarded this as a case where, essentially, you get there, you get to the outcome applying Berri, or you get to the outcome not only applying Berri, but one needs cases like Watson going to the issue of mixed functions.

PN138

Can I ask you, please, to look at - I think it's your court book 51 - paragraph 67 of the decision, where the Commissioner describes a clothing - I think it's a metaphor and not an analogy - where he says, 'I've got two choices here between non-technical and technical.' (a), which must be a reference to customer support (technical), it's like a knitted sweater that has stretched, it's oversized, 'in the sense that the descriptor contains more than the employee' - I think that's 'descriptor contains more than one activity or task' that should be - 'that the employee does/position entails.'

PN139

Or, (b), which must be a reference to the customer support (non-technical) classification:

PN140

like a cotton sweater that has been shrunk in the washing machine or dryer, fit uncomfortably, in the sense that the descriptor only narrowly covers what the employee does/position entails.

PN141

Then we have (c), which is:

PN142

like a Jac & Jack sweater, fit perfectly.

PN143

The point that I will make, perhaps in passing for the moment, is, at 67(b), there does appear to be a finding by the Commissioner that, as the appellant contended below, the customer support (non-technical) descriptor, albeit narrowly, does cover the work of a CCSS employee.

PN144

So, we are left, perhaps, slightly scratching our heads because we are now reconciling findings which will come later, which do refer to issues like predominant purpose, in circumstances where the Commissioner finds, 'Well, the non-technical description covers all of the work, albeit narrowly', but then there's this other classification, which is over-sized, which has a lot of redundancy in it in the sense that it contains a number of requirements, and this was agreed - I will come to it in a moment - this was an agreed - not an agreed fact, but, I suppose, an agreed understanding of the classifications - one classification has a lot of redundancy in it, but there are some points where we can slot some activities; the other classification covers, albeit narrowly.

PN145

Now, in our primary submission, that should have been the start and end of the matter in our favour, and I will develop that in a moment.

PN146

Can I ask you, please, now - and I will get straight into the specific errors, and when I say 'specific', you will see in our notice of appeal that grounds 1 to 3 are what are commonly described as general errors, that is, errors in the conclusion, and notice of appeal 4, 5 and 6 are where we describe what are commonly understood as specific errors, that is, we go within the train of reasoning of the Commissioner to identify specific errors.

PN147

Could you please go to the decision starting at paragraph 45. I think it's case book 45 or 46 for you - or 48.

PN148

DEPUTY PRESIDENT GOSTENCNIK: Yes, 48.

PN149

MR TAMVAKOLOGOS: I'm sorry, your Honour.

PN150

DEPUTY PRESIDENT GOSTENCNIK: It's all right, you were looking at the page numbers of the decision.

PN151

MR TAMVAKOLOGOS: Paragraph 45, this is what the Commissioner apparently, having read the Berri case, particularly paragraph 114 where the principles are stated, and that's in the case list, made of Berri and its references to context. Now, he says, in (a), it's an enterprise agreement; it is intended to be enforceable. That's well and good. I will simply note for the moment, without taking you to it, that in our case list, we have listed the case of University of New South Wales v National Tertiary Education Union where the Full Bench there overturned a different decision of Johns C, and we would say, at paragraph 19 of that decision, correctly and quite differently to the way Johns C did, identified matters of context. The criticism made of Johns C in that appeal was that he misapplied Berri and he misunderstood what were relevant matters of context, which were - I withdraw that. The Commissioner misapplied Berri, particularly in his determination of what were relevant matters of context, and passing irrelevant matters of context.

PN152

Now, that's very much the task of this Full Bench and we say squarely the Commissioner misapplied Berri, for reasons which I will explain, in almost - I won't say identical but in a very similar fashion to the NTEU case, and one of the misapplications, in fact, was identical, which was that at 45(a). The Commissioner referred to quite a similar list to the one that he refers to in paragraph 45 here, and says, 'Well, the fact that it's enforceable favours one interpretation over the other' and what the Full Bench, quite rightly in my respectful submission, said there, at paragraphs 9 and 10, is that the obligation imposed on the university in that case is no less enforceable because the scope of the agreement is narrower than that contended for by the union. I will come back to this.

PN153

The other thing I will say about paragraph 45 is that conspicuous in their absence from what the Commissioner says is relevant context - he says the word 'include', but it's still missing, here or elsewhere - what must be relevant matters of context, such as that raised in our appeal ground 7. Again, I will come back to that. This is all by way of introduction.

PN154

DEPUTY PRESIDENT GOSTENCNIK: A longer run up than Michael Holding.

PN155

MR TAMVAKOLOGOS: I'll take the criticism on the chin.

PN156

Can I ask you, please, to just look now at the classifications. Again, one place you will find them is in the Dictionary to the Telstra Agreement; otherwise, they are at the start of the decision. We have the customer support (non-technical). Forgive me for reading:

PN157

Jobs in this family are predominantly occupied in managing or undertaking customer enquiries -

PN158

we say squarely that captures Mr Daly - 'typically relating to' the matters that are there listed, and I will cross-reference each of those in a moment with the evidence. It squarely captures Mr Daly.

PN159

We do also emphasise the 'typically relating to'. Certainly his job typically relates to each of the identified matters, but this is not a classification that is exhaustive in the sense that there are some activities of Mr Daly listed in the agreed facts and I think nearly all of them can be safely caught by what's 'typically relating to', but even if there are some that are not, this is not the kind of classification that is drafted in an exhaustive fashion, so that if there is some activity which falls outside it, then the classification cannot apply. Far from it.

PN160

Then we go to customer support (technical):

PN161

Jobs in this family include managing or undertaking -

PN162

and this is what we refer to in our written materials as the genus of the work -

PN163

network construction, maintenance, operation, performance monitoring...

PN164

Mr Daly does none of those things. The respondent will correct me if there's now a different take on this, but it was certainly agreed below, and this is on transcript, that Mr Daly did not perform network construction or any of those other activities:

PN165

...equipment installation into the network or customer premises.

PN166

Mr Daly does not do those things; he does not leave the call centre, which, I might add, in the COVID era, is actually at his home. He has been set up at home, as have the others.

PN167

Now, jobs also include - this is the respondent's argument:

PN168

fault identification, isolation, testing, basic design within infrastructure, product support and advice.

PN169

Let me put this this way. It is, as I understand it, agreed between the parties that Mr Daly does not do anything in the first sentence of the customer support (technical) classification. So, essentially, the Full Bench can take a red pen and cross that out. We don't want you to because it's important to our case, but that is, as we understand it, the position.

PN170

Then there's the second sentence, 'Jobs also include' and the respondent's whole case below and on appeal hinges on a finding that Mr Daly engages in fault identification; then, after the comma, none of the activities; then, after the next comma, product support, and, as I understand it, not the following. So, essentially, if you could underline, 'Jobs also include fault identification' and then the words 'product support'.

PN171

The argument, as we understand it, put below and against us is, well, it's fault identification in this kind of context, not because it's a field technician out in the network isolating faults, but because a call centre employee listens to a customer and assists them, that may - it may not - but it may include fault identification in the sense that, for example, 'Sir, are all the green lights on your modem on?' 'No, they're not.' Well, that's identifying faults. As I understand it, that's the argument. I will come back to why that's wrong. And also product support.

PN172

Now, it's the second paragraph of this classification which is key to the disposition of this appeal:

PN173

Employees are expected to apply practical skills and knowledge to the technical aspects of telecommunication and information technology.

PN174

Then particularly the second sentence:

PN175

The work is focused -

PN176

that is the focus of the work -

PN177

either directly or in coaching others -

PN178

which, in Mr Daly's case must be directly, not coaching others -

PN179

on applying practical technical know-how and judgment -

PN180

and this is really the gravamen -

PN181

within a specific discipline or area of technical work to undertake job tasks.

PN182

I will come back to the Berri point in a moment, but this is where, in our respectful submission, the Commissioner was well off the mark. The first sentence of the second paragraph refers to the expectation around practical skills relating to the technical aspects of telecommunications and IT. Now, one must remember this is not a company that makes orange juice or produces cricket bats; this is a telecommunications and information technology company. That is itself important context. And it's the application of skills and knowledge relating to the technical aspects of telecommunications and IT which governs or which must be met to meet the customer support (technical) definition.

PN183

What's more, the requirement does not end there because the work itself must be focused on applying know-how and judgment within a specific discipline or area of technical work. Now, in our submission, the reference to 'a specific discipline or area of technical work' and the reference to be being focused in that way is a subset of the broader expectation of the application - this is the first sentence - of the application of skills and knowledge relating to the technical aspects of telecommunications and IT.

PN184

Now, our case is that Mr Daly doesn't meet the requirements of either the first sentence of the second paragraph - I withdraw that. Our case is that he does not meet the requirements of the first sentence of the second paragraph, but, even if we are wrong about that, he most certainly does not meet the requirements of the second sentence of the second paragraph of the classification, for reasons which I will come to.

PN185

When one has regard, as the Full Bench must, to the whole of the classification, to look at the kinds of jobs that are described and to look at the kind of expertise that the employee must have and then compares and contrasts with reference to the agreed facts - the call recordings and the evidentiary record, not including annexure G and what came from it - compares and contrasts that with the customer support (non-technical), there can be no other sensible conclusion other than Mr Daly, either solely or, in the alternative, the predominant purpose of his work is to manage or undertake customer enquiries.

PN186

He is not in the field; he is not doing anything in the first sentence of customer support (technical); he is arguably doing, if one cherry-picks, two things in the second sentence of the first paragraph, if one gives them a meaning which is divorced from its context, but then we say that the respondent's case falls over entirely and the Commissioner ought to have understood this because he didn't make any finding about it. I'll come to that. There is no finding in the decision, as there must have been, about the specific discipline or area of technical work that Mr Daly possessed and administered. There is no finding about that, and for the Commissioner to discharge his obligations judicially, or quasi judicially, he had to make a finding about that.

PN187

DEPUTY PRESIDENT BELL: Can I just ask a question as to how you read that final clause, the 'within a specific discipline or area' clause? You placed emphasis before, and I might have been reading into it too much, as to looking for commas where they don't exist. Do you read it as 'specific discipline of technical work and an area of technical work' or is it 'specific discipline or area of technical work'? And it may not make a difference to you.

PN188

MR TAMVAKOLOGOS: That's quite right, your Honour, so the latter: 'a specific discipline or area of technical work.' We see the 'or' as disjunctive.

PN189

DEPUTY PRESIDENT BELL: Yes.

PN190

MR TAMVAKOLOGOS: But we say it doesn't matter.

PN191

Now, having taken you through the substance of essentially what we say about the classifications - - -

PN192

DEPUTY PRESIDENT BELL: Sorry, before we move from there, since we have got it on the page, just in the first paragraph of the customer support (technical) definition in the second sentence - and this is another question about a comma - in the final list, the 'fault identification, product support and advice to other employees that is of a technical nature', is the 'and' read disjunctively there like we did with the 'or', or do you say that's 'product support and advice to other employees', or is it the compound noun 'or product support and advice to other employees', and I suppose then we've got another potential comma issue 'that is of a technical nature' and what that attaches to?

PN193

MR TAMVAKOLOGOS: No, with respect, I'm glad you asked this because we say that this is a conjunctive 'and', so the answer does matter because if it's conjunctive, Mr Daly does not establish to the requisite standard that he gives product support and advice to other employees that is of a technical nature, but we do reserve, your Honour, the alternative argument that, even if you read that disjunctively and, with respect to the respondent and the Commissioner, it isn't clear whether it's conjunctive or disjunctive, either way you read that, the respondent doesn't get there, for reasons which I will explain.

PN194

The other point to mention, which I ought to have mentioned but this question has reminded me, is that in the customer support (non-technical) definition, one can readily discern - even a non-lawyer or a human resources manager picking up this document can readily discern that the job is all about managing or undertaking customer enquiries. It's that critical interface between the organisation and the customer and the skills that relate to that kind of work.

PN195

One does not get the same impression from the customer support (technical) classification. Far from it. And, for reasons which I will elaborate on, it's impossible to imagine that Telstra could employ someone from the market, as was the uncontested evidence which I will come to - uncontested evidence; not a question about it in cross-examination - give them a few weeks of training on scripts, guides, checklists, walkthroughs, how to find things on LORIAT(?) and NATAMA, the databases for residential and business customers, and from the short period at the end of that training, operate and do the job in its full capacity and be very successful employees.

PN196

One cannot imagine that to be the case in relation to customer support (technical) employees, who are constructive in the network, performance monitoring, going into pits - that's where the network is - or customer homes to install equipment, and the point that I raise in response to the question is the only express reference one finds in the customer support (technical) definition to a customer, the only express reference, is the installation of equipment into customer premises. Mr Daly doesn't do that. What he does is squarely caught by the customer support (non-technical).

PN197

Now, let me go to the specific areas because, as His Honour Deputy President Gostencnik said, it's been a long run-up. Let me deal with notices of appeal 1 to 6 all together. To do that, I need to take you through the chain of reasoning that the Commissioner employed in order to seek to persuade you about where he got it wrong.

PN198

Our first point, to close what I was saying earlier, is that there were material matters of context that are omitted from paragraph 45, particularly the award mapping point. I will come back to it. Now, paragraph 47 of the decision, the Commissioner has read both of the classifications, as the Full Bench has, carefully and says:

PN199

Both descriptors refer to tasks/jobs that are included within them. Neither list is exhaustive.

PN200

We certainly agree with neither list is exhaustive:

PN201

However, the tasks/jobs in the descriptors are indicative of the complexity of the work.

PN202

One observation that we would make, and I will take you to a passage in a moment where the Commissioner again seems to squarely contradict himself, is that the reference in the customer support (technical) definition to doing things like handling complaints or supporting field technicians, that is, those people, of which there are many thousand, out in the field who might call up and receive some assistance from the CCSS employee, that is part of the job. That work isn't necessarily, in the manner described by the Commissioner at least, simple, but we don't belabour that because there are greater issues at play here.

PN203

Then, at paragraph 48, the Commissioner says that the non-technical descriptor contains relatively uncomplicated matters or basic customer enquiries. What we will say is that certainly the classification uses the word or refers to 'customer enquiries' - in fact, that's the core of it - it doesn't use the word 'basic', but, in any event, and the reason I am making this point is actually to take this whole issue of complex/simple and basic/hard out of play and to convince you that really what the Commissioner did here is - let's contrast 47 and 48 where the Commissioner says, 'Well, look, this is really all about complexity; there's a hierarchy here - and these are my words, not the Commissioner's - 'but customer support (non-technical), that's just really easy work, it's not complicated at all.'

PN204

Analogies are always dangerous, but perhaps we can think about it as a clerical job. It's strictly about following instructions. But, the customer support (technical) job, well, that's more complex. That's essentially what we read into 47 and 48.

PN205

Then if you could please skip forward to paragraphs 79 and 80 of the decision. This is where the Commissioner purports to apply facts to classifications as interpreted. He says, at paragraph 79, 'Well, not all of the IT work is complex' and, with respect, that is so, and if you read - I'm sorry, if you listen to the call recordings, any of them, but we don't pick and choose in our case, if you listen to any of them, you will see the nature of the calls that are taken and the nature of the fixes that are administered. He then says:

PN206

Some of it is fairly basic. Listening to some of the calls during the hearing even I (with no IT qualifications) was able to work out the solution.

PN207

Again, if you listen to the calls, I expect the Full Bench will form the same opinion and, as Mr Hampson said in his evidence, and as we probably all know from our daily lives, it's surprising how often the answer is switch it off and switch it back on again. The Commissioner then says, though, critically, that the agreement - this is the classifications in the agreement:

PN208

does not divide the work between basic and complex, it divides it between non-technical and technical.

PN209

And this is the critical part and what we say is the critical error:

PN210

The major and substantial part of Mr Daly's role requires him to have skill and knowledge of IT.

PN211

Now, four paragraphs later, we have a conclusion and a decision that goes against us and the heart of it really is at paragraphs 78 to 80 because, if we compare and contrast that with what the Commissioner said at paragraph 47 and 48, on the one hand, he is saying, at 47 and 48, 'Look, this is all about there's a hierarchy here and there's complexity.'

PN212

Telstra's response to that below, and we say it was categorically established by the evidence and the admissible exhibits, all of which you have, and this included some of the guides, the walkthroughs, the checklists and scripts that were used by Mr Daly and CCSS employees, but the role is heavily supported by pre-prepared materials and the core job is to be empathetic and listen to the customer, to obtain the relevant resource and to work through it, and Johns C acknowledges that because he says at 80 - this is how he dispenses with our point:

PN213

The fact that Telstra provides some scripts and extensive knowledge databases doesn't deprive it of its information technology flavour. It just makes the work easier to do. However, the agreement does not divide the work between easy and hard.

PN214

Now, that's critical, that sentence, 'The agreement does not divide the work between easy and hard', because what the Commissioner is otherwise doing, perhaps subtly, is he's abandoning an earlier distinction that he set up, which is this is all about a complexity and simplicity hierarchy. He is saying the opposite at paragraph 80, and the decision rule that the Commissioner is really applying to dispense of this dispute is all buried in one sentence:

PN215

The major and substantial part of Mr Daly's role requires him to have skill and knowledge of information technology.

PN216

This is in an IT company.

PN217

I will just quickly read back the classification, the second paragraph of the customer support (technical). Please don't feel you need to go to it; I will read it all:

PN218

Employees are expected to apply practical skills and knowledge to the technical aspects of telecommunication and information technology.

PN219

Now, that must have some meaning to the technical aspects:

PN220

The work is focused on applying know-how and judgment within a specific discipline or area of technical work.

PN221

One searches in vain for any reference to a specific discipline or area of technical work. The reason for that, in our submission, is obvious, because Mr Daly does not possess any such skill, and the Commissioner did not do justice within the meaning of the Berri principles to that classification by making a finding that the real decision rule that needed to be applied here, in the last paragraph of 79, was, 'Forget about idea of complex and easy, simple, hard; if Mr Daly has skill and knowledge of IT, he qualifies into the customer support (technical).' That is captured by notice of appeal 1 to 3. That is wrong. We then go to - - -

PN222

DEPUTY PRESIDENT GOSTENCNIK: Mr Tamvakologos, is it a convenient time to have a short break?

PN223

MR TAMVAKOLOGOS: Yes.

PN224

DEPUTY PRESIDENT GOSTENCNIK: We will adjourn for 10 minutes. Thank you.

SHORT ADJOURNMENT [11.22 AM]

RESUMED [11.37 AM]

PN225

DEPUTY PRESIDENT GOSTENCNIK: Mr Tamvakologos, apologies, but Commissioner Mirabella is having some difficulty reconnecting.

PN226

MR TAMVAKOLOGOS: Not at all.

PN227

DEPUTY PRESIDENT GOSTENCNIK: Mr Tamvakologos, apologies for interrupting your flow, but I had earlier promised Commissioner Mirabella a break at around 11 and it would take a braver person than I to stand to a Greek and a mid-morning coffee.

PN228

MR TAMVAKOLOGOS: Thank you, your Honour. Before the break, I was making the point centred on paragraph 79 of the decision where the Commissioner appears to dispense with a distinction that he was at pains to set up in his references to context earlier by saying that the major and substantial part of Mr Daly's role, having read both the classifications, requires him to have skill and knowledge of IT.

PN229

The way that he dealt with the evidence regarding the scripts, the checklists, the guidance was - this is at paragraph 80 - the fact that Telstra provides that material:

PN230

does not deprive it of its information technology flavour. It just makes it easier.

PN231

The fact that it is easy is not the point. The agreement does not divide the work in that way.

PN232

Now, what the Commissioner is doing, in our submission, at paragraph 80, not only doesn't square with the customer support (technical) classification, particularly the second paragraph and most particularly the second sentence of the second paragraph, but, even on the Commissioner's own logic, where he says at paragraph 78 that there must be skills and knowledge relating to the technical aspects of telecommunications and IT, in answer to the issue, well, there's a short amount of training and this is heavily guided work, call centre work, the Commissioner says, at 80, that the fact that Telstra provides that material doesn't deprive the work of its information technology flavour.

PN233

This is this idea of information technology flavour and, in our submission, that is a wrong and impermissible form of reductionism in that what the Commissioner has essentially done is three things: one, he has not applied the express requirements of the classification that he says the employee falls into, particularly the second paragraph; secondly, he makes a wrong finding that all that the classification requires is some skills and knowledge relating to telecommunications and IT; and then, third, when confronted with an argument that, 'Well, yes, but it's all fairly strongly guided and it's all about customer interface', he says, at 80, 'Well, that doesn't change things because all of that material still has an IT flavour.'

PN234

By paragraph 80, in our submission, the Commissioner has moved well away from any faithful application of the customer support (technical) classification, and I will describe - let me just take you back one step to paragraph 52 of the decision. This is the part of the decision where the Commissioner is purporting to interpret the classifications, and that's all he's purporting to do.

PN235

DEPUTY PRESIDENT GOSTENCNIK: Sorry, before you go to that point, can I just ask this: in the final sentence of paragraph 79, the Commissioner finds:

PN236

The major and substantial part of Mr Daly's role requires him to have skills and knowledge of information technology.

PN237

Now, I understand the point that the position description or the definition in the second paragraph requires the application of practical skills and knowledge in respect of a particular species of, relevantly, information technology, that is, the technical aspects of it. I understand that point. Do you also take issue with the finding generally?

PN238

MR TAMVAKOLOGOS: Yes, and I'll take you to the uncontested evidence about this.

PN239

DEPUTY PRESIDENT GOSTENCNIK: Yes, all right, thank you.

PN240

MR TAMVAKOLOGOS: Please go to paragraph 52. This is the part of the decision where the Commissioner is purporting to interpret, faithfully with Berri and Watson and the other cases in our list, the two classifications which he has read. I am going to try and just do this in a briefer way by not going through all of the introductory paragraphs, but this is what the Commissioner gets to. He says, at paragraph 52:

PN241

All that can be deduced from the 'technical' descriptor -

PN242

that is customer support (technical) classification -

PN243

considered in context, is that the worker/position must understand or have skills and knowledge relating to telecommunications and information technology.

PN244

I would underline and put under a harsh spotlight five words: 'All that can be deduced.' One cannot possibly read the customer support (technical) classification applying any semblance, frankly, of conventional principles and say, 'Look, all that we can deduce from that is that the worker, Mr Daly, or the position, CCSS, must understand or have skills and knowledge relating to telecommunications and IT.'

PN245

This is the gravamen of points 1 to 6 of our notice of appeal, and let me provide the Full Bench with seven reasons why that can't be right and the difference between the two classifications could not, on any construction, boil down to this one aspect.

PN246

The first reason is this: the Commissioner says, at 52, that all that can be deduced - a different way of saying that is, 'All that this boils down to' - is that the position must have skills and knowledge relating to IT. Now, 'relating to' - words of the widest import - just having skills relating to telecommunications or IT.

PN247

Now, this is an organisation, as I mentioned earlier. We don't make food, we don't make widgets; it's a telecommunications and IT company, and if inclusion into the customer support (technical) classification occurs because an employee has skills relating to telecommunications and information technology, what we say about that as a matter of law is it ignores references in cases like Wanneroo v Holmes concerning context and industrial reality.

PN248

We are a telecommunications and information technology company. A great many employees will have some skills relating to telecommunications or IT. In fact, you will know from your own experience, if you walk into a Telstra shop and ask a retail employee a question about a phone, well, that's a skill relating to IT. It's far too broad. The conclusion is not consistent with the customer support (technical) classification.

PN249

Secondly, as just impressed upon us by Deputy President Gostencnik, in our submission, critically, the finding at paragraph 52, as a matter of law and the application of that law at paragraph 79 to the facts, is texturally inconsistent with both the first and second paragraph of the customer support (technical) definition. I won't go through that again; I've said enough about it.

PN250

DEPUTY PRESIDENT BELL: Can I ask a question. Let's just say you're right on that and that the words 'the technical aspects of' in that relevant sentence - - -

PN251

MR TAMVAKOLOGOS: And the specific (audio malfunction).

PN252

DEPUTY PRESIDENT BELL: Yes, need to do some work. What do you say those words 'the technical aspects of' provide by way of limitation to what that sentence would otherwise establish?

PN253

MR TAMVAKOLOGOS: Well, one thing I'll say about the classifications, your Honour, and the Commissioner was right about this, is that the jobs list is not exhaustive, and this is a very large organisation. All that we need to prove to you, in our submission - or, it's not so much proof - all that we need to demonstrate by way of construction is that the technical aspects of telecommunications and IT is a subset of having some skill. We all have some skill in telecommunications and IT.

PN254

DEPUTY PRESIDENT GOSTENCNIK: Speak for yourself.

PN255

MR TAMVAKOLOGOS: I thought you might say something. I do think it is ubiquitous - I'm sorry, I withdraw that. I do think it's fair to say that, whatever one's station, having some skill, to set the bar so low - nearly everybody has a telephone that they carry in their pocket, whether it's a Smartphone or not, and it simply cannot be right to say, 'All that can be deduced' - those critical five words - that all that is required is some skill relating to IT and technology. That can't be right.

PN256

Now, your Honour's question to me is, 'What does technical aspects mean?' Our submission on that is that the classification does not purport to capture all of the different types of jobs in a company of this size that might be caught by that classification, but when one has regard to the genus of the jobs in the first paragraph, the kinds of activities described, and then, in particular, the references in the second paragraph to 'technical aspects' but also the 'specific discipline or area of technical work', true it is, as the Commissioner said, that the classification doesn't say, 'Well, you have to be an engineer' or 'You have to be a software developer' or 'You have to be an expert on fibre' or an expert on the many other activities that are engaged in a telecommunications and information technology company.

PN257

Our answer is there is a material point of distinction that must be interpreted into this classification which is not present in the customer support (non-technical) classification and which is not present on the facts. I apologise for giving something of an indirect answer. I can't give you a list of jobs because the classification doesn't purport to do that. It may be that there are employees of Telstra who, for example, work as engineers without an engineering degree because they have particular skills. It may be that there are highly skilled, highly specialised employees who have some subset of skills within telecommunications and IT that can do one or more of the jobs in the first paragraph of customer support (technical). I can't be more specific in my answer simply because the classification doesn't permit me to.

PN258

The third point we want to make - there are seven - is that in reaching the conclusion that he did at paragraph 52, the Commissioner refers to this as 'deductive reasoning'. Now, deductive reasoning is reasoning from the general to the specific, that is, taking some general information or general principles and reasoning it down to a specific principle or rule.

PN259

This is not an example of deductive reasoning at all because the first sentence of the second paragraph of the technical classification refers expressly to the need to apply skills and knowledge to the technical aspects of IT. So, there's no deduction; one just needs to read the sentence. In fact, the sentence goes further than the finding because, as Deputy President Bell indicated, it is the technical aspects of IT, not just having some IT skill itself.

PN260

So, the Commissioner, with respect, if he thought he was engaging in a process of deductive reasoning, was wrong. Really what he did was simply omit a number of the requirements of the classification and engaged in impermissible reductive, not deductive, reasoning.

PN261

The fourth point is this: when one reads both classifications in the context in which the work is performed - a call centre in a telecommunications and information technology company - saying that all that can be deduced is that a worker must understand or have skills and knowledge relating to IT is no distinguishing criterion at all. We don't need evidence to impress upon the Full Bench that in an organisation like Telstra, there will be many employees, many thousands of employees, outside of the call centre environment, whether it's in a shop or elsewhere, that have those kinds of skills. The Commissioner has simply set the bar as far too low.

PN262

The fifth point is that it is the description of the non-technical classification as a whole - this is Berri principles, paragraph 114, as it would be interpreted and understood by a reasonable person - that the Commissioner, in our submission, wholly overlooked. When he says that the worker or the position qualifies for inclusion into a different classification because they have skills relating to IT, he doesn't give effect to the non-technical classification. So, this is our argument about why Mr Daly and others like him do qualify for the customer support (non-technical) classification.

PN263

The first thing we say is this. The opening words:

PN264

Jobs in the family of jobs -

PN265

it's not one job, jobs in the family of jobs -

PN266

are predominantly occupied in managing or undertaking customer enquiries.

PN267

There can be no argument that does not, in the most primary and direct way, describe what Mr Daly does every day during his working hours, and that is so whether you are with us on our primary argument that that is what he does and he doesn't meet the requirements of the customer support (technical) classification, or whether you are with us on our alternative argument that that's the predominant purpose of his employment.

PN268

Then we go to - and I won't go back to this because it will take too long - we have the agreed fact that Mr Daly works in a contact centre and manages customer enquiries. Then the classification says this:

PN269

typically relating to billing, scheduling of network faults, provisioning/order management, credit management, complaints management or directly in support of the field workforce.

PN270

That last part is a reference to technicians in the field, who, as I said earlier, work to maintain Telstra's network.

PN271

The Full Bench should - and I'm about to, and the Commissioner ought to have - faithfully cross-reference what comes after the words 'typically relating to' with the totality of the evidence and in particular the agreed facts that we went through earlier. I will just mention them. Agreed fact T1:

PN272

It is agreed that Mr Daly performs activities in the nature of sales, billing, order management, credit management -

PN273

which must necessarily refer to bills and credits and things of that nature -

PN274

and complaints.

PN275

Now, that is four of the six typical activities that the customer support (non-technical) classification must typically relate to, and I will also say in this vein, it cannot be seriously suggested, as it appears to be by the respondent, that a complaint to a telecommunications IT company does not relate to telecommunications or IT. Of course it does. And the fact that Mr Daly might - and I will get to this in a moment - rather than using a guide or a walkthrough or a script, jump onto Google and YouTube and work out how to solve something, well, that's still an IT skill; it doesn't change the outcome here.

PN276

Then there is:

PN277

Typically relating to scheduling of network faults and activities directly in support of the field workforce.

PN278

Now, that is (aa) and (bb) of the agreed facts where there is a system of escalation - a system - to other working people, whether they are Telstra employees, NBN employees, third party contractors, or local IT companies, where the CCSS employee cannot resolve the matter themselves using the scripts and the walkthroughs, et cetera. All of these activities, in our submission, directly support (audio malfunction) technicians in the sense that they allocate the right person in the system to the problem.

PN279

It must be remembered in that vein that the classification, as Johns C did say, is indicative only and it's not exhaustive. It need not describe every single task that a CCSS performs. The important thing here, referring back to Berri and referring back to Watson on our alternative argument, is what is the nature of the work, what are the tasks, what's the nature of it, in what kind of environment or context is it performed?

PN280

Our sixth point is that nowhere in the decision does the Commissioner find or, even short of making a finding, address or explain, and neither does the respondent in their written materials on appeal explain or address how the two jobs within the customer support (technical) classification they identify as picking up Mr Daly's work, that is, fault identification and product support, and there's references to the relevant findings by the Commissioner - excuse me for a moment, I've lost my tab.

PN281

We are at paragraph 77. The Commissioner rightly says it's a non-exhaustive list, but the ones that he finds, we say impermissibly cherry-picking, expressly mentioned to which Mr Daly's can be applied, are product support - he says that definitely applies to Mr Daly - and fault identification is also relevant to Mr Daly's work.

PN282

Now, we disagreed below and we disagree now, but I'm making a different point. The agreed facts list, the checklist of activities that the CCSS employee performs, for example, sales, billing, order management, complaints, we don't see any reasonable interpretation that would say that dealing with a sales call, for example, is fault identification or product support, or that simply dealing with a billing query or ordering something - if a customer calls up, for example, and says, 'My modem is 10 years old, I need a new modem, can you please, Telstra, send me a new modem', that would not be caught by the customer support (technical) definition or properly caught by any aspects of it that were identified by the Commissioner.

PN283

Anything can be caught in the legal world if one doesn't have regard to the context and put ostensible boundaries around things, and that's why we urge the Full Bench to do what the Commissioner did not do and to read the classifications in full and in context.

PN284

Our seventh and final point on these points of appeal is this, and this picks up particularly notice of appeal 5, which I may have made earlier - I apologise for that - nothing at all was said by the Commissioner about the last sentence of the second paragraph, which is not technical know-how or know-how at large that matters, but know-how and judgment within a specific discipline or area.

PN285

I ask rhetorically: what specific discipline or area of technical work did the Commissioner say is being exercised? The Commissioner said nothing; there's not a word of it. We say that's critical, and we also say that the deductive reasoning can't be deductive because, when you reason from the general to the specific, one must include all of the general premises, and he didn't do that.

PN286

The respondent defends this point on the appeal by saying, at paragraph 28 of their written material, that it was sufficient - and I'm quoting here:

PN287

It was sufficient for the Commissioner to find that the role had an information technology flavour and required the application of practical skills and knowledge of telecommunications and IT.

PN288

In our respectful submission, that must be wrong, for all the reasons that I have already put forward, and by adopting paragraph 28 of the respondent's submission, the Full Bench would fall into the same error that the Commissioner fell into. One can put aside ideas of flavours of things and needs to apply the classification in full and in context.

PN289

I also mention, very briefly, that the argument now made on appeal, not necessarily fatal to the respondent if you find error and we go into a rehearing, but I want to address it for completeness, but the argument on trial was different to the argument that is being made now on appeal. The argument at trial, which is buried in footnote [34] of the decision - I think that's right - which is a copy type of the parties' arguments, if you can go to casebook - I think it will be 33 of yours, it's 32 of mine - in any event, it's paragraph 45 of the respondent's submissions below. Sorry, it's paragraph 32 of mine, so it might be 33 of yours, your court book. Again, I apologise for the cross-referencing. Does the Full Bench have that page?

PN290

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN291

DEPUTY PRESIDENT BELL: Sorry, I don't think I do. Could you just take me to - which page in the decision?

PN292

MR TAMVAKOLOGOS: I'm sorry, it's not the decision. I'm harking back now to what the respondent, the union, said below about what was the specific discipline or area.

PN293

DEPUTY PRESIDENT BELL: Yes.

PN294

MR TAMVAKOLOGOS: And I'm taking you to their submissions below, particularly paragraph 45, which, on my version of the court book, is page 32. I think it will probably be the same, actually, on yours.

PN295

DEPUTY PRESIDENT BELL: Whether a person could seek advice?

PN296

MR TAMVAKOLOGOS: Thank you, yes.

PN297

DEPUTY PRESIDENT BELL: Yes, got it.

PN298

MR TAMVAKOLOGOS: Have a look at the words after the quotation marks of 'undertake job tasks':

PN299

The technical discipline or area, the evidence has shown to be two-fold.

PN300

This is what was put below:

PN301

Faults and problems with NBN or Wi-Fi modems and issues and advice about a range of other customer and business information technology products, devices and programs which require troubleshooting and autonomous research.

PN302

Now, as I say, I mention this for completeness because the argument that was put below is different from the argument that is put now on appeal. In our submission, (audio malfunction), in paragraph 45 that was put below that can credibly qualify as a specific discipline or area, particularly - and this goes to Deputy President Gostencnik's question earlier, having regard to agreed facts (aa) and (bb), which is that the CCSS employee is part of the system, an important part of the system, a valued part of the system and, indeed, its front line speaking to the customer, but faults and problems with NBN will often be escalated to NBN - that's an agreed fact - where that's necessary, where it's not a quick fix.

PN303

Wi-Fi modems and issues, et cetera, you heard the agreed evidence about all of those things, which is it may be that the CCSS employee is the start and end of an enquiry about one of those things, but it may well not be, and so to say, 'Well, necessarily, the CCSS employee, or Mr Daly, is exercising a specific discipline or skill relating to the technical aspects of IT because they deal with those things' cannot be right.

PN304

Neither can it be right, as the respondent now says on appeal, that the specific discipline or area is telecommunications and IT. It is simply far too broad. It must be a subset. We are a telecommunications and IT company and all of the jobs and all of the classifications, not only those at issue in this case, need to be interpreted in that light.

PN305

Can I just go to one other aspect here, which is to ask the Full Bench to have regard to Mr Daly's own evidence when cross-examined about the work that he performs. I would like you to go to casebook - on mine it's 111, but, in any event, it's PN471 of the transcript, which is behind tab 3.

PN306

DEPUTY PRESIDENT GOSTENCNIK: It's at 112.

PN307

MR TAMVAKOLOGOS: Thank you, your Honour. The middle of the page, it starts at 471. This is Mr Devereux cross-examining Mr Daly:

PN308

So many of the calls you receive are fairly simple fixes?‑‑‑I suppose for me they're quite simple, yes.

PN309

They often involve restarting the modem or turning the Wi-Fi on, those sorts of things?

PN310

And there's an answer there and he says, Mr Daly says:

PN311

So complexity varies. Most of the time -

PN312

I'm interpolating a little bit here because, of course, in ordinary language, we don't speak perfectly precisely:

PN313

Most time the fixes are quite simple. That's based on experience of doing it. I just learnt. Like when I first started, I knew nothing about emails. I had to get a colleague to take over emails.

PN314

Then he says:

PN315

But now I know about emails.

PN316

Then, at 473 - I'm sorry, go over to 475:

PN317

So the role is substantially about relying on and using, if you don't remember -

PN318

bearing in mind that this is someone who's been in the job for years, so they're not always going to need to look at scripts and checklists because they're getting repeated questions of the same nature:

PN319

If you don't remember, you can use the materials that are available to you?‑‑‑Yes, so Telstra material is all third party, like Google Search and stuff.

PN320

Then, critically, at PN476:

PN321

So it's -

PN322

that is the job -

PN323

is a matter of finding the appropriate support material. It steps through. If the customer's got a problem, (audio malfunction), for example, you can resolve that?‑‑‑Yes.

PN324

It's finding and interpreting materials?‑‑‑Yes.

PN325

I could go on, for example, to 480, where he talks about customers buying things from a retailer but not understanding how to plug them in and turn them on, and someone like Mr Daly would give that important assistance.

PN326

Can I then ask you to go to paragraph 486. You can, of course, read all of the transcript, but I just wish to emphasise particular parts. Mr Devereux asks:

PN327

So helping a customer install an item of technology like a Wi-Fi extender, it doesn't need technical know-how in a specialised field to do that, do they?

PN328

Mr Daly says:

PN329

Well, it depends on what you're classing as specialised. So, for customers who aren't tech-savvy, they would see it as specialised, but I've got experience doing it.

PN330

Then he says:

PN331

On the Telstra one, you push a button on the back of the device, the back of the modem, and the same with the third party ones. The set-up is quite simple if you know how to do it, but some customers don't have the confidence and it requires someone who's more technically sound.

PN332

Then the question is:

PN333

Well, some customers will call for assistance, but many other customers can set it up themselves?

PN334

And this is critical because it's quite helpful contextual evidence about the client base, particularly for Telstra Platinum, which is the residential:

PN335

Well, customers paying for the service generally can't - yes, that's what they're coming to - sorry, it's also business tech - they buy assistance. If the customer - like I wouldn't need to pay for Platinum because I'm pretty tech-savvy, I know how to Google and YouTube and those sorts of things. People who would be industrious wouldn't be paying. The customers paying for the service want that service because they're not tech-savvy.

PN336

And it goes on and on and on.

PN337

The only other point I wanted to take you to - I'm sorry, there are two more - 506, PN506:

PN338

Do you agree that there is a script provided that guides agents like yourself on how to install a Telstra modem.

PN339

So, a lot of questions about the different products and the different resources that are available:

PN340

I believe there are scripts, but I'm not currently using them.

PN341

If you do follow the guide, even though you're confident to do it without the guide, but if you do follow it, the modem would be successfully installed?

PN342

And Mr Daly himself says:

PN343

Well, yes, because we're doing the same thing. So, if the guide is followed, in my experience, it would lead to the same end result.

PN344

Now, you will hear from the respondent arguments that are mentioned obliquely in their written material that, in some ways, Mr Daly works autonomously and he, through on-the-job training and through his years of experience, has specialised skills.

PN345

We say that is incorrect in the sense that Mr Daly is right to say that those skills might be regarded as specialised by some of the people that buy this service who are not tech-savvy, but that is not the test, that is not cognate with how the classification works.

PN346

The final reference - I'm sorry, to close the point, although I think I have belaboured it enough, the kinds of activities that are described in the agreed statement of facts and the kinds of activities about which Mr Daly gave evidence in his answers in cross-examination, which, in our submission, are most informative to the Full Bench because, as we all know, sometimes witness statements say one thing, but, when they're tested, the answer is something different, and the answers were different in Mr Daly's case.

PN347

The final point which I want to take you to, which the respondent relied on below, is that Mr Daly does, in fact, have an IT degree. He conceded at PN514 that he doesn't need that degree to do his job.

PN348

DEPUTY PRESIDENT BELL: Can I ask a question of a similar nature to the one I was asking before about the words 'the technical aspects of'. This is now about the words 'specific discipline' or 'area of technical work'. Is there any contextual material that the parties have had recourse to or that the appellant, in your case, has had recourse to, to give guidance as to how they might be construed for the purposes of this agreement?

PN349

MR TAMVAKOLOGOS: Nothing direct in the sense of, for example, a note of a bargaining meeting which meets the admissibility requirements of a notorious fact or a common understanding which would shed light on why those words were put in the agreement at the moment they were put in. Nothing of that nature.

PN350

Our argument, your Honour, is that one simply doesn't need to descend into that kind of examination on the facts here because we are dealing with a position which, whilst being valued, and I don't want to ever be thought to suggest otherwise, is essentially a customer service role. I'll refer you to one more additional piece of factual evidence which is critical and unsuspected, and which essentially anyone can do, if they want to, with the minimal amount of training that is set out in the facts. I can't give you - other than pointing to how the classification fits into the scheme of the agreement and pointing out notorious facts such as the nature of the work performed by the company and the nature of the work performed by this position in a system of interactions with other employees, Telstra and non-Telstra, the there's nothing specific that I can point your Honours to.

PN351

DEPUTY PRESIDENT BELL: Your submissions make reference to the award, what's the function of the Telstra award 2015 in any of this, or is that not - paragraph 21?

PN352

MR TAMVAKOLOGOS: It's been pressed and it's critical and that is one of the critical contextual factors.

PN353

DEPUTY PRESIDENT BELL: If it's on your list in the future, I'll let you get to that in the future.

PN354

MR TAMVAKOLOGOS: It's the very next point. There's just one additional aspect that I wanted to raise with the Full Bench. Can I ask you please to go to tab 16 by the court book?

PN355

COMMISSIONER MIRABELLA: What page is that then?

PN356

MR TAMVAKOLOGOS: Yes, page 915 please. Now, short introduction is, this is a written statement of Mr Kris Hampson. Mr Daly has a manager, that manager is an individual Michael Woods. Mr Woods reports to Mr Hampson, and Mr Hampson gave evidence, some of which was contested, some of which was not, about the whole of the Townsville call centre, and the work that is performed by CCSS employees at the Townsville call centre. I just want to quickly, in closing this point, which does go to the legal issue of the kinds of skills that people are coming into the organisation with and after short time performing the role very successfully.

PN357

At paragraph 16, page 97, and before referring to this, I will say, I have not found, and I'm confident the Full Bench will not find a single question asked about this paragraph or the paragraphs relating to it in cross-examination. Now, that doesn't of course make it an agreed fact, but it does enable you to make it an uncontested fact, which the Commissioner ought to have had regard to, but didn't.

PN358

Mr Hampson says at 15, there's 29 other employees in Townsville, in particular, performing the CCSS role. None of them have previous call centre experience or capabilities; all training is provided on the job. He then says at 16, and these are examples of course, that is at (a), a lady in her early 20s, she was previously in hospitality, no tertiary qualifications or experience in IT. (b) is a man in his early 40s. Before joining Telstra and this particular team, he was in glass and glazing, no previous IT experience or qualifications. Employee (c), early 30s, joined it seems in sort of early 20s. No studies in IT, very little experience with computers, now a member of the leadership team, interested in justice administration.

PN359

(d) is a man in his 20s and came straight out of high school, having previously worked in fast food and at a supermarket chain. He is interested in gaming and computers as a hobby, but no IT qualifications et cetera. The list goes on. I mean, (e) is a lady who was in fast food and Mr Hampson is at pains to emphasise that she's an outstanding employee, she's amazing with customers and has great communication skills. Hence the point is, that she performs the CCSS role. Not, in our submission, not meeting the requirements of the second paragraph of the CCSS role, or indeed, any of the role, but meeting the role of the non-technical classification, particularly having excellent customer service skills. The same goes with (g) and (h).

PN360

The respondent will say, as Commissioner Johns said, well that's all good and well, but the customer support (technical) classification doesn't say you have to have a degree, at all or of any particular type. Now, that's a red herring in our submission. It's true; it's right, but it's not really a point. The point is that when one looks at the genus of the work, reads the classifications as a whole, compares it and contrasts it with the work of a CCSS employee, compares it and contrasts it with the work of Mr Daly more specifically, he simply doesn't qualify for that classification.

PN361

Can I now - and I can say that I won't be, I hope, too much longer. Can I address Deputy President Bell's question about the Telstra award, and this relates - so, I've moved off now notice of appeal grounds one to six; I'm addressing notice of appeal ground seven.

PN362

This appeal ground concerns the Commission's failure to observe a number of the Berri principles concerning the issue of proper context, and it does, in some small but material way, constitute part of our answer to Deputy President Bell's question about context. You don't need to go to this, but at paragraph 41 to 46 of the decision, the Commissioner considers the meaning of the words 'technical' and 'non-technical' by using a dictionary. I'm sorry, the dictionary reference is particularly at 56 and says - well, the parties must have been referring to what technical means. That must have been the common intention of the parties, viewed objectively.

PN363

Now, we don't criticise the Commissioner for that; there's nothing wrong with looking at dictionaries to find the meaning of words, but where the Commissioner went wrong by omission was to stop at that and not look at a much more direct and richly informative path to the common intention and common assumption of both Telstra and the respondent union as to what technical and non-technical, so far as the word technical is used and we use the word non-technical, being in distinction to technical. Well, if we're going to hyper-focus on what the word technical means, there was a very obvious place to look, and to that end, can I please ask you to look at tab 8 of the court book, which is the agreed facts / chronology document that was put before the Commissioner.

PN364

DEPUTY PRESIDENT GOSTENCNIK: Which page?

PN365

MR TAMVAKOLOGOS: 269, your Honour.

PN366

DEPUTY PRESIDENT GOSTENCNIK: 269, thank you.

PN367

MR TAMVAKOLOGOS: I take you in particular to point six first, remembering that Mr Daly has been at Telstra for about five years, so the current enterprise agreement, there's a different agreement that applied to him at the commencement of his employment. What the parties agreed and put to the Commissioner, was that the previous EA which was - I'll call it the 2015 EA, it had annexed to it a statutory declaration in support of the (indistinct) and the CPSU submitted its own as the process requires, statutory declaration in support of the agreement.

PN368

Then we go on to point seven, which is the current agreement, which applies to Mr Daly and there's a similar annexure and although we don't have an F18 from the CPSU, the decision itself approved in the agreement says at paragraph 1, that the union supported a preview of the agreement. Now, I just want to take you for a moment to the annexures, but first to tell you what they are.

PN369

As the Full Bench will appreciate, when an agreement is submitted to the Tribunal for approval, it needs to pass the Better Off Overall Test. Inherent in that analysis, is mapping jobs from the agreement to the underlying award. I'll give you the conclusion and then show you proof. When one looks at the mapping, which was agreed by Telstra, which was agreed by the union, even in 15 by way of statutory declaration which carries penalties of perjury, it was agreed that the CCSS job mapped to roles in the enterprise award, which importantly, it's not an industry award or an occupational award which can apply to many types of businesses, it's a relatively unique instrument in our system, because it was fashioned for this organisation only. It as agreed that the CCSS job mapped to jobs in the award which are described as customer contact stream roles.

PN370

An examination of the mapping and the underlying awards which the mapping cut and pastes, is that these are all customer service roles, spanning from Customer Contact Officer level one to a Principal Customer Contact Leader. Now, there's one classification in particular, Principal Customer Contact Specialist, this is in the award, and this is the description, which we say captures quite neatly what Mr Daly does 'Taking calls, entering data, using phone and computer technology et cetera', and the competencies include 'Providing services to customers, including a high degree of product, service knowledge, often independently acquired'. Now here, you don't need to independently acquire it, because there's lots of scripts. 'Taking the responsibility for outcomes of customer conduct, rectifying situations involving emergencies, complaints, faults, disruptions or disconnections.'

PN371

Now, of course the award classification, it's impossible in any mapping exercise for classifications to map up in an identical fashion, unless one is employing the device that some do, of turning the award into an enterprise agreement; that's not what was ever done here. But that is all to contrast with the classifications in the two technical streams in the award, which refer to matters such as cabling, physical installation work, professional work requiring a degree, et cetera.

PN372

Just to take you to those documents, I think it's page 275 for the Full Bench, which refers to the 2015 EA and the 2015 Award and you'll see under the heading Job Family Customer Support (Technical). Then there's another heading a little bit below, this is page 275, Customer Support (Non-Technical). Then there are corresponding award classifications. Now, one needs to interrogate the award itself, which can be easily done. The point, and we don't need to do anything more than this, is to say, if this really was a matter that troubled the Commissioner, and he couldn't construe - we say that if you apply Berri faithfully and read the Customer Support (Technical) classification, the CCSS role, simply doesn't get there.

PN373

But if that was a matter that was really troubling the Commissioner, and he asked himself exactly the kind of question that Deputy President Bell asked me, which is where do I look for context that makes the interpretative task easier, the task was not to come up with quite a meek list set out at paragraph 45 of this is an agreement and it's enforceable, well of course it is. He ought to have had regard to the arguments put to him squarely below, about where these classifications sit in a family of jobs in an enterprise that has an enterprise award and which easily qualifies within - I think it's the last paragraph of Berri, which the Full Bench extends the principles in Golden Cockrell, to talk about the circumstances in which a decision-maker can look at materials outside the plain words of the agreement.

PN374

Plainly, in our submission, because it's not particularly easy material to get in, if one applies strictly the rules of evidence, but on any view, the underlying enterprise award and things of the nature of an application which was agreed and statutory declarations which were signed, it cannot now be said, and in fact, in fairness to the respondent, it's not said. They don't say no, look the mapping is wrong, and this job is actually more technical that we thought it was back then; they don't say that.

PN375

So, if one wanted to look at notorious facts, common assumptions, the award and the classification mapping, which Mr Devereux put into evidence, all squarely qualified. We urge upon the Full Bench in notice of appeal ground seven, to have regard to this properly as a contextual matter, which is admissible, as it was before the Commissioner and to derive, at least some assistance from it, all of which points to an appeal being granted.

PN376

Quickly, before I move off notice of appeal number seven, in their written materials, the respondent says at paragraph 35 - I won't take you to it, that the Commissioner took this matter into consideration, and what they do is, the respondent points to - I didn't mean to be disrespectful in the way that I said that. The respondent points to simply the list of materials that the Commissioner referred to that were filed by the parties and says in their submissions, that if you took it into account and the House v The King applies - we see earlier that's wrong. You are applying a limited standard of correctness; there's no discretion here - so it's not a House v The King error.

PN377

What the respondent then says at paragraph 35 is, the argument in respect of the award merely provides the industrial and legal framework for the manner in which the agreement was made. Now, that simply, that submission simply disregards the principles in Berri about a decision-maker deriving assistance from relevant contextual matters such as matters of common assumption or notorious facts. There's nothing controversial about the argument that I've just put about the award, and even now the respondent doesn't challenge it. What they say is, well that just refers to - that's just about agreement making. Well, at the time it was prepared it was about agreement making, but now it qualifies as something that regard can be had to in the interpretative task.

PN378

Our final point about that is, and I don't really want to trouble the Full Bench with this. Even if the respondent was right and this issue was governed by House v The King, Justice Dixon and the other judges said in House v The King, that in making a discretionary decision, if the judge does not take into account a material consideration, it has to be material, then the appellant court can intervene. We say this is material.

PN379

Can I now please take you to Notice of Appeal ground eight. This also covers - - -

PN380

DEPUTY PRESIDENT BELL: Sorry, just briefly before you move on from that. Paragraph 17 of the decision lists various exhibits which includes item 28, the Telstra Award 2015. Maybe I've overlooked it, but is the Telstra Award in the appeal book, or was it not something tendered because, understandably the parties perhaps took the view just didn't need to tender a document of that nature?

PN381

MR TAMVAKOLOGOS: Yes, my recollection is that that's right, your Honour. So, in the sense that it's a statutory instrument, it's not something about which - - -

PN382

DEPUTY PRESIDENT BELL: Possibly fell into a book of cases and legislation, rather than evidence; I understand.

PN383

MR TAMVAKOLOGOS: Exactly.

PN384

DEPUTY PRESIDENT GOSTENCNIK: Sorry, and before you do, and whilst we're on that paragraph, paragraph 17, the reference to exhibit and numbers is not accurate, is it? Those are not separate - those documents listed there are not separate exhibits in the proceeds. So, for example, all of the annexures attached to Mr Daly's statements are not separately exhibited. I think the Commissioner meant that to identify the document by numbering, as opposed to an exhibit number per se.

PN385

MR TAMVAKOLOGOS: Yes. Your Honour, I didn't appear below and there's nothing express in this about the transcript, which I read many many times. I think you're right in that what I can say is that not all of these annexures et cetera were marked for identification, if one goes off the transcript. So, I can only surmise that what you're saying is right, that post the hearing, things have just been put into a list and given exhibit numbers, even though that's not strictly correct.

PN386

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN387

MR TAMVAKOLOGOS: Can I please go to Notice of Appeal ground eight, and this encompasses Notice of Appeal Ground ten? Ground ten is a bit of an omnibus. Can I please ask you to go to paragraph 69 of Commissioner John' decision, which is either on page 51 or 52 of your materials? In particular, paragraph - have the Full Bench got access to that material?

PN388

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN389

MR TAMVAKOLOGOS: Thank you. Having finished with the sweater metaphor, the Commissioner introduces references to some evidence at paragraph 69 which came off the website which markets or advertises these services, and says 'Telstra markets Platinum', calling that Platinum is the residential customer service 'as a tech support service that can help you with your IT and gadgets'. And there's some other material there which you can read. Then at 70, in relation to business tech 'Telstra can help businesses, big and small, with IT support, 24/7 online or on the phone'. There's a reference to professional IT advice. 'Working with business tech has it's challenges, don't let them slow you down.'

PN390

Now, what does the Commissioner make of it? He makes two things of it. At 71, he says, presumably, not really a matter of presumption in any event. The Commissioner says 'Telstra markets the products as tech and as involving information technology support, because it is technical work'. We take that as a reference, I hope not unfairly, to a cross-reference to the word 'technical' in the first sentence of the second paragraph of the Customer Support (Technical) definition. So, what the Commissioner was saying is, well look, you're marketing this to the world as technical, so, it's technical in the sense of the enterprise agreement.

PN391

He then says 'there was no evidence that Telstra was engaging in misleading conduct in the market of those products. I accept how Telstra markets the product to the world at large, is an accurate statement of the services offered'. Now, we have no issue with the last sentence. That website material is accurate.

PN392

DEPUTY PRESIDENT GOSTENCNIK: There's a different question as to what is required by a particular role, is really your point. The fact that the website markets in a particular way, as I think the uncontested or agreed facts disclose, there's levels of escalation of problems, and so - - -

PN393

MR TAMVAKOLOGOS: Thank you, your Honour, and that ran straight into paragraph 72. This is Mr Daly and other CCSS employees liking, that provide the Telstra Platinum and the Telstra business services. Reread again, I think not unfairly. We're not applying an appellate fine-tooth comb which Justice Kirby would warn us against. Commissioner Johns says it's Mr Daly and other CCSS employees like him that provide these services. Well, that's just not right. He's part of the provision of the service, he's an important part of it, because he speaks to our customers and we value then and we value him. But he's far from the only part of it. The CCSS employees as a group, are far from the only part of it. They are part of the service, the are not the service.

PN394

So, we say in appeal ground eight, admissions made to appellable errors here. One, it does depend on how you read paragraph 71 and 72. We say one, it is wrong as a matter of construction to take this material and pick out the word technical and regard that as cognate with the word technical in the Customer Support (Technical) definition as a matter of construction. It might be relevant, but they are cognate.

PN395

The second aspect, which is really what the Commissioner did with this evidence, the material aspect, is he's saying well look, we've got to put this individual in the Customer Support (Technical) classification because Telstra is marketing the work as technical. It's only him and people like him in an identical position performing the work, therefore, they must be Customer Support (Technical) employees. For the reasons I've given, for the reasons that Deputy President Gostencnik mentioned, that finding was not open on the facts; not open at all.

PN396

Just very briefly before I get onto the next couple of points, the respondent defends the suspect on appeal - - -

PN397

DEPUTY PRESIDENT BELL: Sorry, just one question on that. We can have regard potentially to that document, would you at least accept for - - -

PN398

MR TAMVAKOLOGOS: Of course you can.

PN399

DEPUTY PRESIDENT BELL: For trying to discern to what extent Mr Daly engaged in say, the various tasks on the factual findings in paragraph 59, for example. I know, given annexure G is out, there was an unresolved dispute about what, if any, findings could or should be made about the areas of work which Mr Daly spent time in, is the fact that the Telstra advertisement is directed at particular subject matters on at least more of an IT support nature, rather than necessarily billing a matter that is of relevance or regard?

PN400

MR TAMVAKOLOGOS: Well, I think in answer to that question, Deputy President, that what I'm reading to you is not the totality of the evidence of what was on the website. It's what the Commissioner has taken from it for a particular purpose.

PN401

DEPUTY PRESIDENT GOSTENCNIK: Well, Mr Tamvakologos, can I just ask you this? It seems to be suggested that the word 'tech support' is intended to convey technical support.

PN402

MR TAMVAKOLOGOS: Yes.

PN403

DEPUTY PRESIDENT GOSTENCNIK: The extract in 69 makes no mention of technical support. It refers to technology advice.

PN404

MR TAMVAKOLOGOS: Exactly.

PN405

DEPUTY PRESIDENT GOSTENCNIK: I've just looked at the page that is, what is Telstra Platinum and conducted a word search for technical and it's not there.

PN406

MR TAMVAKOLOGOS: That's right.

PN407

DEPUTY PRESIDENT GOSTENCNIK: So, technology and technical are not the same thing.

PN408

MR TAMVAKOLOGOS: Your Honour, has brought me directly to the next point I was going to make which was that there was a lot of argument below, post-hearing, in the post-hearing materials which you have access to, and one of the points that Telstra was at pains to drive home, is that there is a distinction between working with technology and technical within the meaning of the classification. They are not the same thing. That is a distinction which the Commissioner, in making findings like all the CCSS employee has to do, is have some skill relating to IT and technology. Lowering the bar - again, I don't want to put words in the Commissioner's mouth, but it seems that what the Commissioner is finding here, one can read between the lines, is if the CCSS employee job has anything to do with any item of technology, it qualifies. That cannot be right, with respect.

PN409

The respondent also says, and this is in footnote 29 of their material. I'm not going to take you to it. What they say is, on the appeal this is, they say that the reason the Commissioner was appropriate, and in the alternative, even if there is doubt, the findings would not have been a sufficiently significant departure from the facts to give rise to an error of the type found in the House v The King. Now, we've said what we've said about House v The King. In relation to the other points in the footnote, there's four references. I'll just put them on the transcript. It will take too long to take you to each of them.

PN410

Footnote 29 in the respondent's submissions, refers to PN818 of the transcript. The question and the answer referred to - this is on the issue of their screenshots of the website, and this is cross-examination of a Telstra employee Ms Schultz, HR Specialist. 'Do you agree this', that is the website extract, 'conveys to a Platinum customer that they would speak to a technician or technical expert on the phone, if they had such a problem?' The answer is 'To a customer, yes. I think that's what's conveyed'.

PN411

Now, the respondent relies on that, as if it's some sort of concession. The question is not what the customer thinks about our marketing; the two are not cognate. Then there's a reference to PN974, and again, I won't take you to it. It's in response to an answer about Telstra Platinum and assisting employees with WhatsApp, which is an encrypted messaging platform. The question is this, that it doesn't say - I'm looking at annexure D1, 'It doesn't say Telstra is a tech support service that can help you with your IT and gadget issues (if we've got a script on it), does it?' And the answer is 'Of course, Commissioner'.

PN412

The transcript is there and the references are there, but that was all in response to evidence that if a customer calls with an issue that Telstra doesn't support and doesn't have materials on, the way to deal with it, is to explain that to the customer and to refer them off. Now, the point is here, this is put in a footnote, apparently in support of - well Telstra's a tech support service, and we can help you with everything. My point is simply that the question and the answer don't say that.

PN413

Then the footnote refers to the decision at paragraph 62, where the Commissioner says, and I quote 'I was greatly assisted by the evidence adduced during the virtual inspection. That evidence went very much to the complexity of the work undertaken. Not all of it was an information technology flavour'. Now, two points. One, we're dealing here with an argument about whether the marketing material is relevant to the interpretative task. We say it's not. It is a fact, and you can draw from it what you wish. The reference in the footnote - the footnote looks quite impressive until you dive into it. The reference to 'I was assisted by the virtual inspection', that has nothing to do with Telstra's marketing material. I don't see why that reference is there. Then there's a reference to paragraph 5 of the respondent's submissions and I just simply couldn't follow that reference at all.

PN414

Now, what we say to close this notice point, is the marketing material is there. This is not a discretionary interpretative question. Even if it was, one can't sensibly take from that material, what the Commission took from it. I've got three grounds of appeal and I will be brief with these, but is now a convenient time?

PN415

DEPUTY PRESIDENT GOSTENCNIK: When you say brief, you obviously don't mean 10 minutes; you mean a bit longer than that?

PN416

MR TAMVAKOLOGOS: I think I'll be 20 minutes.

PN417

DEPUTY PRESIDENT GOSTENCNIK: Well, we might, in those circumstances, adjourn. Mr Guy, without preventing you from taking an equally long run up, how long do you think you might need? The only reason I'm asking is this. I had tentatively listed another matter for 2 o'clock today, which plainly isn't going to start at that time. If I'm able, I'd like to give the parties some indication, because there's some urgency to it, about when we might start today, if at all.

PN418

MR GUY: Yes, I hear you, your Honour, and I understand. I did see that in the list. Just perhaps, the Bench, as I understand it, the appellant has about another 20 to go.

PN419

DEPUTY PRESIDENT GOSTENCNIK: That's roughly.

PN420

MR GUY: Yes.

PN421

DEPUTY PRESIDENT GOSTENCNIK: If that's a lawyer's 20 minutes, it means half an hour, but.

PN422

MR GUY: Indeed, your Honour. I was thinking I'd be at least an hour, is all I can say at this point. I'm going to take the break to - - -

PN423

DEPUTY PRESIDENT GOSTENCNIK: That's fine. It more than reinforces my view that we're unlikely to get a start in my matter today.

PN424

MR GUY: Sorry - - -

PN425

DEPUTY PRESIDENT GOSTENCNIK: I'm not going to hurry you up, because of it, so you - - -

PN426

MR GUY: I hear you, your Honour. I will look at it over the lunch break, however, and if that changes, I will advise.

PN427

DEPUTY PRESIDENT GOSTENCNIK: All right, I appreciate that. Thank you for those indications. We will adjourn until 2 o'clock.

PN428

MR GUY: If the Commission pleases.

PN429

DEPUTY PRESIDENT GOSTENCNIK: Thank you.

LUNCHEON ADJOURNMENT [12.59 PM]

RESUMED [2.00 PM]

PN430

DEPUTY PRESIDENT GOSTENCNIK: Yes, Mr Tamvakologos.

PN431

MR TAMVAKOLOGOS: If the Full Bench pleases, before the break, I'd finished with Appeal Point eight, and now move to Appeal Point nine and to rely on the amended notes of appeal in the terms described. Can I please ask the Full Bench to go to paragraph 63 of Commissioner Johns' decision at court book page 51?

PN432

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN433

MR TAMVAKOLOGOS: This appeal point, your Honour, is limited to this singular paragraph and we admit to there being a little bit of a mystery about what Commissioner Johns is saying here. The Commissioner posed for himself and for the reader three questions. Question one was how do you interpret the classifications. Question two was what does Mr Daly do in terms of his activities and work. Question three is noting those, where does Mr Daly's position fall. Now, he introduces what is a relatively short answer to this question by saying how a person or role is defined and viewed as important. It affects the (indistinct).

PN434

If an employee doesn't feel valued, and we take particular exception to what's in the brackets. We'll just insert position that is looked down upon or respected, diminishes them and they're more productive otherwise. Now, this is a very narrow point. The first thing to say is, we certainly take exception to what's in the brackets. There was nothing in the way the case was run which indicated that Mr Daly is not a respected member of the workforce. Going to the legal issue though, it's here, this paragraph is in the decision. We assume that it means something. It's not superfluous; it's not gratuitous. Now, what it hints at is a beneficial construction type point, i.e., given an employee - I'm sorry, classifying an employee in the higher of two possible classifications, changes how they view their role and for the reasons that the Commissioner outlines that should be the outcome.

PN435

Our point on this is two-fold and relatively simple. If the Commissioner is saying that the considerations which he identifies at paragraph 63, mean that an employee should be put in the higher of two possible two classifications, there is no principle under the common law, there's certainly no rule that indicates that that is the correct way to interpret a classification issue. And this is relevant to our alternative argument, because if this is a mixed function case, and you find that both classifications could conceivably apply, you then apply a predominant purpose principle function test. What the Commissioner seems to be saying here is, I want to put the person in the higher classification for the reasons mentioned. There is simply no support and none is identified in the decision, for that kind of construction, or this kind of consideration being relevant, and indeed, how could it be.

PN436

I mean essential would mean that in all cases where there's what's perceived as a high classification and a lower classification issue, the employee ought to be placed in the higher classification for the reasons mentioned. But there is no such principle. It does have hints of a beneficial construction type point, that is, sometimes a statute or even a provision of an enterprise agreement is identified as a matter of interpretation as once which has a purpose that is to be beneficial to one party or stakeholder or another, depending on the object of the legislation. Unless you apply a beneficial construction because, and I won't take you to this, but at PN411 and PN115, the Commissioner did, during the hearing, make noises about beneficial construction and he said things like, well this is an enterprise agreement, you've got to give it a beneficial construction.

PN437

Now again, we come back to our foundational point. There is no such principle; you will see no reference in Berri or any like case to any such principle. In particular, a classification definition within an enterprise agreement which is, by its nature, concerned with definitions, is not a provision which is to be given a beneficial construction. Now, that is my phrase. The Commissioner did refer to it during the hearing. He doesn't say that in his decision, but it seems to be what he's doing at paragraph 63 and if that is what he's doing, it is wrong.

PN438

We've amended our Notice of Appeal in relation to which leave was given this morning, as part of 63, also encompasses a failure to give reasons. That's the respondent's response to what the respondent says in its written materials on the appeal. I'll just read this. This is the respondent's submissions at paragraphs 40 and 41. They say:

PN439

The Commissioner's comments are just that; comments. There is nothing in the decision to suggest that the comments made by the Commissioner were in any way directed at the appellant, or form the basis of any part of the determination of the matter.

PN440

Now, we say that that submission is belied by a number of matters. Firstly, in the paragraph, the Commissioner himself uses the word 'important' in describing the issue of how the role is viewed. The paragraph sits generally under the consideration part of the decision and immediately under question three, it concerns the application of facts to classifications. Far from not having any role to play in the determination of the matter, paragraph 63 appears as an introductory comment to the metaphor that comes at paragraph 67, in essence saying, I have to make one or only two available choices. Both fit, and I referred earlier to 67(a), the oversized sweater, and then (b), the shrunk sweater which narrowly covers. So, they both covers the position.

PN441

What the Commissioner appears to be saying is, they both fit, but I will classify the employee in the high one, because that gives expression to notions of respect and value. We say that that's a constructional error. These considerations at 63 are not constructional considerations. The respondent says well, just disregard 63; they're just comments, they don't have any - they don't weigh in the decision. Supposing for the moment that the respondents are right about that, that is, the paragraph is there, but it should not be read in the way that I have just sought to explain it.

PN442

Then we have what we describe at amended 9(b), a failure to give reasons concerning what paragraph 63 of the decision does mean, in the Commissioner's view and its impact on the answer to question three which went against us. I'll quickly refer to the Boak decision. This is our case list seven. There's no need to go to it; it's a fairly short passage. Excuse me a moment. Boak is a decision of a Full Bench of Fair Work Australia as it then was, headed by the last Justice Giudice and paragraph 16 says this:

PN443

Duty to give adequate reasons for decision has been considered on many occasions. There are reported public policy considerations which underwrite the duty.

PN444

This is the key point.

PN445

In particular, the reasons for decision must be sufficient to all parties to exercise such rights of appeal, as may be available and to enable an appeal bench to determine whether or not error has occurred in relation to a decision. Consequently, the reasons given must articulate the essential grounds for reaching the decision and address material questions of fact and law in a matter which discloses the steps which lead to a particular result.

PN446

The Full Bench goes on to say, the reasons don't need to be long, they don't need to spell out every detail, et cetera.

PN447

Now, our point about paragraph 63 is this. We have worded it the way that I have explained it and if that's the case, then the Commissioner should not have said what he said, and certainly should not have used it in the interpretative task in the way that we think he did. If we're wrong about that, the reality is we don't know what exactly we meant by what he said at paragraph 63 and the effect it had on the chain of reasoning and the outcome. We assume it had some effect, but we don't know for certain, and neither with respect, can the Full Bench. So, if that's the case, then 9(b) of our amended notice, it's just not satisfactory to say things like this which are unfair, but also irrelevant and leave us guessing. That's point number nine.

PN448

Can I move please to Notice of Appeal point number ten. I mentioned earlier that this is an omnibus appeal ground and I've dealt with some parts of it already. The part that I haven't dealt with is, in particular, point 10(c) which concerns the evidence of Mr Hanson and Ms Schulz about the scripts and the guidance and the expectation to use them and that the focus of the CCSS role is managing customer enquiries. What we say following there is germane providing consistent high quality customer service.

PN449

Can I ask you please to go to your court book 53, paragraph 78 of the decision? This is how the Commissioner dealt with the issue of the scripts, particularly at 80 and I did refer to this earlier, so this won't take long, where he says, well, the scripts make the work easier to do and in fairness to the respondent, there was evidence that Mr Daly went beyond the scripts by searching how to guides on Google and YouTube and that kind of thing, and I read you those passages. Not something we shy away from at all.

PN450

The point here is, that by saying what he said at paragraph 80, the Commissioner seems, at least implicitly to have accepted that the work of a CCSS such as Mr Daly, is a highly guided and largely scripted role and to have understood that the job is really at its heart, about delivering customer service and being an interface with Telstra's customers. In our submission, if the Full Bench does accept that, it ought them to disregard what the Commissioner said at paragraph 48 of the decision, which in a sense, we read to mean, non-technical is just basic customer enquiries, anything that's uncomplicated and technical, is everything else.

PN451

I think I did make this point earlier, that the point really at its heart, is 47 to 49 of the decision do not confirm with 78 to 81. They can't be sensibly reconciled. If the Commissioner cannot conclude that the scripts at six, make the work earlier to do, that that's of no moment. But at the same time, conclude that a critical distinction between the two classifications is the complication of the work or the complexity.

PN452

That brings me to Notice of Appeal eleven, and we're now moving away from constructional errors and factual errors to a procedural point. If you could please look at paragraph 39 of the decision, which I think is 47, court book 47, where the Commissioner appears to have done his own research on predecessor agreements and concluded at paragraph 40 that the descriptors, we take that to mean the description of the jobs in each of the two classifications at issue, they're first included in an enterprise agreement at a time when the telecommunications information technology landscape was different to that which it is now.

PN453

Now, our appeal ground at eleven has two limbs, and I'll explain them in this way. Assuming that this observation is not purely superficial or gratuitous, that it means something, the Full Bench is, as we are, a party aggrieved and appealing the decision, essentially left to guess as to precisely what, or at least adequately what the Commission made of these predecessor agreements. The problem is discerning what the Commission actually drew from the history and how, in his view, if effects the ultimate conclusion.

PN454

Now, we can certainly speculate; there's a point in the transcript, I'll just give you the reference. It's PN401 court book 102, where the Commissioner makes a comment that the definitions are 16 years old, that is the definitions in the classifications, and for example, WhatsApp only started in 2009. I'll just pause there to say when one looks carefully at paragraph 39, that doesn't quite square with what the Commission says at paragraph (c), where he introduces the 2012 agreement and says see the new definitions of customer support (non-technical) and customer (technical). Perhaps it's in any event, a long time ago, but the main point here is, the Commissioner meant something by these paragraphs; he drew something as a matter of construction from them.

PN455

The respondent is right when they say in their written material, well this is a point that he made on transcript, that is, I've looked at predecessor agreements and these definitions look old. What is missing is the next step. That then means, or I think it means, or the way I take that, or the way that it effects my understanding of the issues is, because the fact that the definition is old and the telecommunications landscape is different, that may be right. The question is, so what, and that's really where we're left scratching our heads.

PN456

One thing we would say about this by way of commentary is, and it really is speculation, and our speculation is no more valuable than anyone else's. But it could be said in our submission that, as technology has become more ubiquitous in our lives, what was once considered a specialised technical skill, like using a computer, or using a program on a computer, is now more mundane and ordinary. In other words, we would have before, if anything, the fact that technology is now more ubiquitous and the landscape has changed, works for the appellant, not against the appellant.

PN457

The respondent says at paragraph 48 of the written materials that essential - like the earlier appeal point, is irrelevant. It shouldn't be raised on appeal. So, they say two things; they say that and they say we are on notice of it, because it was on the transcript; I've dealt with that. We say either the Commissioner should have told us what his view was, as a matter of procedural fairness, in which case it could have been addressed, not only by the appellant, but by both parties. Or, and most notably now for the appellant, because Barrack emphasises, it's the appellant who's entitled to look at the reasons and interrogate the chain of reasoning. A chain must mean steps within the chain, leading to an ultimate conclusion and understands whether they should appeal or not; whether there has been an error or not.

PN458

If we're wrong about everything I've just said and the respondent is right, and paragraph 48 doesn't mean what we speculate it means, we rely on 11(b). The reasons for decision are inadequate. It's just not good enough again to drop these paragraphs in a decision that has the kinds of consequences this decision has and not tell us what is meant.

PN459

That's all I have to say about the Notice of Appeal and the errors, which leaves me with the third and final part of my address, to address the issue of - subject of course to our response, the permission to appeal. As I mentioned at the outset, the test of Commission to appeal here is discretionary and if you are persuaded that there is any error in the eleven errors that we have put forward, arguable errors. If there is an arguable case of error, and you consider that there would be injustice if the result were not corrected, then (indistinct). You need not also find that this decision is relevant to the public interest.

PN460

I'm not going to repeat anything I've said about the points of appeal. We say that there is certainly a number of arguable errors. We put it much, much higher than that; there are quite obvious errors. But in any event, the Commission should be granting on that basis.

PN461

In terms of the injustice, which is something that the respondent says we don't treat carefully, far from it. This goes to the point about ground seven in the award. This decision, if permitted to stand, for obvious reasons will distort the classifications and the structure in the agreement. We don't give evidence, I hope, to persuade you that this is not a small organisation. Just in Townsville there are dozens of CCSS employees, and that's just in Townsville. The proposition that the Commissioner leads with this, that if an employee has skills relating to telecommunications and IT, they readily qualify for a categorisation as a customer support technical employee, will upset the structure.

PN462

It is in contrast, and we say this is an injustice to the position of all parties in terms of the mapping and the decision is otherwise attended by a number of arguable errors. One moment please.

PN463

We have included in our case list and I don't need to read it, a decision involving the Tax Office, the ATO and it is worth at least, in our submission, a scan. In that case, and this is in response to the respondent's argument look, don't give permission because this is a single provision of a single enterprise agreement and there's no public interest issue. That is not the conclusion that the Full Bench reached in the ATO matter. Also, they're dealing with a single enterprise agreement. Admittedly, not one, but two provisions were argued about in that agreement. I suppose we could say the same; there's two classifications at issue.

PN464

You'll see there at the pinpoint reference that we've given, the Full Bench says in the ATO matter, that the agreement applies to a large workforce, that's obviously the case with a company like Telstra, and there are consequences here. We don't put it any higher than that. That kind of logic applies, if not equally to us, it does apply to us.

PN465

May I address, apart from just the issue of permission in the conventional sense, why we say that there is a public interest in permission being granted. This is a decision in our view, in our respectful submission, plainly at odds with the requirements of the Tribunal under subsection 5 of section 739 of the Fair Work Act, which provides that the Commission must not make a decision that is inconsistent with a Fair Work Instrument, here relevantly of course, the enterprise agreement. Our logic to that argument is this, as the Full Bench will appreciate, this all comes before you, or more importantly came before the Commissioner as the last step in a dispute resolution procedure where there was a conciliation and then a compulsory arbitration, what's referred to by the High Court as a private arbitration because the source of the Commission's power to answer the question in the way that he did, derived from the agreement of the parties.

PN466

Section 739(5) provides that the Commission must not make a decision that goes outside of that. Without wishing to overstate it, our point on this is simple. There is a public interest consideration embedded in subsection 5 of section 739. Enterprise agreements, particularly at the arbitration state, when you're in the hands of an independent third party, ought to be applied correctly, an in fact, 739(5) reads as a prohibition on the Commission doing anything other than that. Now, that doesn't mean that every arbitration of every question ever under a dispute resolution procedure, is always a public interest consideration. But here, married with the other factors I've mentioned and in particular, the errors, and the multiplicity of them, we say that there is a public interest issue.

PN467

We also point out something that won't be lost on the Full Bench. This is a classification dispute. It matters to Mr Daly; it matters to us. It may have consequences for others, it may even have retrospective consequences, potentially. Enterprise agreements are instruments about which there are very serious penalties, both reputational and otherwise financial for non-compliance. That's not something we take lightly, which is why it's important, frankly, (a) that the Commissioner's decision not be the subject of a denial of permission, but secondly you, in exercising your powers of review, which is what you will be doing if you are with us on any singular error that we have argued, should substitute your own decision for that of the Commissioner.

PN468

The final point we wish to make is just that. If we have persuaded you that there is any error here, what should you do? The respondent says send it back to the Commissioner. In other words - they of course don't agree that there's any errors, but if you find any, send it back to Commissioner Johns, along with the decision on the correct construction. For all of the reasons that are taken into account by appellate bodies throughout this country, we say that that is not the right course. It's inefficient. There's nothing in the decision which raises the kinds of considerations which point Full Benches or Full Courts to send the matter back to a single member. Things like, particular impressions of witnesses, matters of credit, which only the Commissioner could properly understand.

PN469

There's no adverse credit findings or anything like that in the decision against anyone, appellant or respondent witnesses, and having regard to the evidentiary record which, as Deputy President Gostencnik indicated was a bit of a Michael Holding type run out. The reason why I was at pains to do that and to take the time to do it in the way that I did, was to convince you that you are armed with all of the tools to construe the agreement correctly and to apply the evidentiary record correctly, and we urge you to do so. Thank you.

PN470

DEPUTY PRESIDENT GOSTENCNIK: Yes, thank you. Mr Guy.

PN471

MR GUY: Perhaps I'll take it this way, to start at the back and deal with permission to appeal just very briefly. Obviously, the submissions have been made - the respondent of course, relies on the outline of submissions that have been filed in the Commission dated 8 April 2022.

PN472

In respect of permission to appeal, our position obviously from the outset, is that this decision is not attended to by any error and on that basis, the Commission, this Full Bench rather, should not grant permission. In addition to that, my submission is that this matter again, is not of significant importance to attract permission in the sense that, as has been submitted, this relates to a single classification in a large enterprise, or public administered, non-government enterprise and one that, although inconvenient to that enterprise, does not, in any way shape, way or form, effect anything beyond really, the classification of the CCSS.

PN473

In addition to that, Mr Tamvakologos took the Full Bench to the decision of the Australian Services Union and the ATO. My understanding, and I have only had a brief read of the matter, was that that matter related to a redundancy process undertaken by a government organisation that had, in my respectful submission, a wider input than that, the present case before this Bench. Other than that, and I'll leave it at that, we rely on our submission in respect of permission to appeal generally.

PN474

DEPUTY PRESIDENT GOSTENCNIK: Mr Guy, in the event that we were to form a view that Commissioner Johns was incorrect in the decision as to the appropriate classification under the agreement, doesn't it follow that the Commissioner's decision was therefore inconsistent with the agreement? Isn't that a sound basis for the grant of permission?

PN475

MR GUY: It would be, yes.

PN476

DEPUTY PRESIDENT GOSTENCNIK: Thank you.

PN477

MR GUY: Now, Commissioner, sorry your Honour, I apologise. In respect of - - -

PN478

DEPUTY PRESIDENT GOSTENCNIK: I've been called worse, so don't worry about it Mr Guy.

PN479

MR GUY: Thank you. It's easy to slip into. Just in respect of the issue that has been raised, and your Honour raised it as well in applying the correctness test, and I'm just about to get into, and I don't propose to be as long in respect of facts or anything of the sort, but delve somewhat into Mr Daly's work and how he completed that work, and the reasons why the decision made by the Commission was the correct one. Or, in any event, if the Commissioner arrived at the decision incorrectly, nevertheless, Mr Daly still is a technical employee, as opposed to a non-technical employee.

PN480

I agree with what has come from the Bench that the test that needs to be applied is one that I think your Honour correctly described as the correctness test. Deputy President Bell did make some comments in respect of my submission in relation to, I think it was at approximately paragraphs 25 to 33, in respect of some discretionary decisions made by the Commissioner below.

PN481

My submission in respect of anything in relation to House v The King discretion is indeed, in those paragraphs and I apologise for any confusion that may have arisen in the submissions. However, in respect of making a decision as to whether Mr Daly or a person employed as a CCSS is referred to as, is a customer service (non-technical) employee or a customer service (technical) employee. This forms the basis of, I think it was described as grounds one through six of the appellant's submissions.

PN482

The Bench has been taken quite a few times to the definition and the customer service (non-technical) employee as well as a customer service (technical) employee. The position of the respondent in this matter is put plainly in paragraph 16 to 25 in our outline of submissions.

PN483

Then looking at the facts, your Honours, the agreed statement of facts of the parties is perhaps the best place to start and that went through at great length. But it is worth considering again, because with respect to the appellant, there was a great deal that wasn't really canvassed. If one looks at appeal book 9, paragraph 21(t), this again, is an agreed statement of facts prepared by the parties, so no issue is taken with it, on appeal, as to the fact that it was agreed. One must look at what types of work Mr Daly involved himself in.

PN484

Now, a great deal of submission was made in respect of (t)(i) being sales, billing, order management and quotes. But there is of course, some 14 other tasks that was agreed to between the parties that Mr Daly involves himself in. I won't go through them at length, one by one, but one can see these include but are not limited to NBN connections, ADSL and landline faults, paper faults, and it goes on. But to highlight some other matters, or other tasks, include the use of discontinued Telstra products, setting up third party non-Telstra devices, set up and configuration of a virtual private network, fault forwarding and remote desktop configurations, items such as security cameras and the like, as well as PC optimisation which is speeding up one's computer and setting up EFTPOS machines and what have you.

PN485

Submission was made that below the argument of the respondent, was that the technical nature that my client referred to when making a determination as to customer service (technical) employee, was the identification of faults. Now, when looking at that, that list there, Mr Daly and his colleagues involved themselves in process that include identifying cable faults, ADSL and landline faults and various other identification of faults and what have you. In addition to that, these individuals involved themselves in processes and undertakings that include the set-up of devices, configuration of virtual private networks which, with respect, I only have some brief understanding of.

PN486

But again, technical computer programs and systems that are in place for them to provide a service, that in the submission of the respondent is a type of work that is technical in nature. I say that is the case because they are applying, and again, this has been dealt with ad nauseum, but at page 6 of the appeal book, when looking at customer support (technical), again, it is conceded that yes, Mr Daly does not engage in network construction, maintenance, operation performance, monitoring equipment installation. But he certainly does involve himself in fault identification, which is identified at paragraph 21(t)(iii) and (iv). He involves himself in product support and advice and again, that is dealt with all throughout (t), which includes product support advice, for example at (t)(viii) and discontinued Telstra products, third party products at (t)(ix), and in addition to that, all of which is of a technical nature, in my submission.

PN487

He is also in his day-to-day work, expected to apply practical skills and knowledge to technical aspects of telecommunication and information technology. In my submission, that is and includes the identification of faults, the setting up of computers and the like. Mr Daly's job, in my submission is distinct from, and there was submission made on this point, the person that you meet at the Telstra customer service centre. Those people, and I don't have enough information at this point in time, would certainly be involved in, as submitted by Mr Tamvakologos, that they don't involve themselves in a technical level of work.

PN488

That may be true, however, in this situation Mr Daly and his colleagues, are. They are involved in processes whereby they have to trouble-shoot for people, they have to set things up for them. I'm instructed that isolation, testing and repair is also part of the process to identify and fix faults. They have to involve themselves in a higher level of work than that of a customer service representative, or somebody who simply deals with a general enquiry, when one rings Telstra's general number.

PN489

It's agreed, and it has to be stated that indeed, Mr Daly and his colleagues are involved in matters that concern billing, scheduling, network faults, provision of order management, credit management and freight management, all directly in support of the field workforce. However, in my submission, that forms part of the work, but it isn't the only work that is performed. The work that is performed by Mr Daly and his colleagues is work that again, falls into the category of customer support technical.

PN490

Now, the Commissioner below, had the opportunity to look at those and the parties below did have the opportunity to look at those tasks undertaken through the recordings and on redetermination, they would also be considered. However, if this is to fall into a category of a fixed functions case, as was suggested by the appellant, it is the submission of the respondent, that when looking at the duty and function and purpose of Mr Daly, this Full Bench should come to the conclusion that Mr Daly and the CCSS role is one which, it's function and purpose is to provide practical skills that fall within customer support (technical) role.

PN491

In respect of that, there was, and this was described as a critical error by Mr Tamvakologos, that the major and substantial part of Mr Daly's role requires him to have skill and knowledge of information technology. Again, I made a general - a much broader submission, when one looks at the job tasks in paragraph 21(t), not the decision. By their very nature in the submission of the respondent they fall within that category within the skills and knowledge of information technology.

PN492

If I could take the Commission to appeal book 1024 - sorry, I stand corrected. It's 176 PN1024. This goes to the point that Mr Tamvakologos made in respect of the fact that Mr Daly and his colleagues rely heavily on scripts and don't necessarily use a great degree of technical knowledge or knowhow to arrive at solutions or provide the services that they do to customers.

PN493

This is the cross-examination of - - -

PN494

DEPUTY PRESIDENT BELL: Sorry, Mr Guy, what was the paragraph number in the transcript?

PN495

MR GUY: PN1024.

PN496

DEPUTY PRESIDENT BELL: Yes, thank you.

PN497

MR GUY: This is a cross-examination of Mr Barlow by - I hope I'm pronouncing this right. At PN1024, Mr Barlow asks the question, 'Do you agree that it is normal for complex customer service specialists not to just use scripts or their own experience in training?' The response is 'There are scenarios where they would utilise both, yes.' Similarly, if one is to go to - sorry, I stand corrected. This is a cross examination of Mr Hampton Benz the Manager.

PN498

Now, if one is to go to appeal book 138 at PN1045, the question is from the Commission, 'So, Mr Hampton, just correct me if I'm wrong, I could summarise it like this. Employees come in at an entry level, they don't require any recognised information technology qualifications to support them, particularly in the early phases of their work. There are these scripts which they would be well advised to follow. But over time, with their skills and experience on the job and the like, they're more likely to exercise a bit more autonomy in how they respond to customer queries?' 'That's correct, Commissioner'.

PN499

It's certainly my submission and the submission of the respondent, that this is indicative of the type of work these people are undertaking. Yes, they're given skills and resources and training by Telstra to undertake this sort of work, but that skill and training and those scripts provide them with a level of understanding and capability that puts them into a more technical category than that of a customer service (non-technical) employee.

PN500

DEPUTY PRESIDENT GOSTENCNIK: Mr Guy, whether one is using a script or not, the enquiry made of the customer support employee is the same or the same bundle of enquiries, are they not? So, all that the experience - the on-the-job experience might achieve in respect of a particular employee is that they become more efficient in answering the questions, because they've answered them before. It doesn't change the nature of the question, does it? Whether one is using a script or not?

PN501

MR GUY: That is correct, your Honour. However, again, when one looks at it - again, the purpose of the role and the service that is being provided by Telstra, the CCSS role again, is to deal with that higher order. Yes, the nature of the enquiry, the question doesn't change. Again, it is a higher order, there's training and they're again, applying practical skills and knowledge which again, may be derived from their own learning, but also from the scripts and the training that they've been given by Telstra. Again, that certainly is argued below. That's in respect of faults of various other matters on appeal. It's a slightly more broad brush and deals with the application of technical aspects of the telecommunication and information technology.

PN502

DEPUTY PRESIDENT GOSTENCNIK: But ultimately, it's a question, is it not, when regard is had to the bundle of duties that seems to be agreed were undertaken, whether those bundle of duties fall within the duties or the kinds of duties described as customer support (non-technical) or customer support (technical). It doesn't really matter, does it, whether you're talking about a person on day one of the job or year three or four.

PN503

MR GUY: No, it does not.

PN504

DEPUTY PRESIDENT GOSTENCNIK: Yes, all right.

PN505

MR GUY: Sorry, is there a question?

PN506

DEPUTY PRESIDENT BELL: Look, I do have one, but I don't want to interrupt your flow. It was a similar question that I asked of the appellant, which came out of my, or it came out of - or at least it was in my mind that the final sentence of section 79 of the decision below, which is that the finding that the major and substantial part of Mr Daly's role required him to have skill and knowledge of information technology. The appellant's complaint is that that's, and I'm paraphrasing here, that's not enough. That led me to ask about the words of the opening sentence of the second paragraph in customer support (technical), which was that employees are expected to apply practical skills and knowledge, not just on telecommunication information technology but to the technical aspects of it. I asked the question, what are those words, the technical aspects, if they're words of limitation or qualification from the respondent's perspective.

PN507

MR GUY: Just so I'm clear. So, Deputy President, you're saying that the technical aspects, are they limited only to telecommunications and information technology? Sorry, if I've misunderstood you.

PN508

DEPUTY PRESIDENT BELL: Well, what I am perhaps keen to ensure is that there's precision in thinking that we don't just align between saying employees are applying practical skills and knowledge to telecommunication and information technology per se, but that the actual description classification requirement is that they apply practical skills and knowledge to the technical aspects of telecommunication and information technology. In the context of what's on debate here, I understood the appellants were placing emphasis on the technical aspects of it. Part of the limb, not simply the fact that they're applying practical skills and knowledge to telecommunication and information technology per se. So, I just wanted to hear from the respondents on that. I'm mindful that that might be on your list down the track, so if you're going to come to it later, feel free to put a place mark on it and return to it.

PN509

MR GUY: No, no, I'll deal with it now. Certainly, in our view, the position of the respondent is that they are applying practical skills and knowledge to technical aspects of telecommunications and information technology. Indeed, their role is technical in nature. Now, the definition of course does go on and deals with what the focus should be. So, in my submission it would be that yes, they are applying practical skills to telecommunications and information technology, and using their skills and knowledge to solve those problems. Is that satisfactory?

PN510

DEPUTY PRESIDENT BELL: Look, it is. It's just, well, it's - I just feel as though for my mind, it's something that we'll need to consider as to what those extra words add. I would also say that the second sentence, and I accept that it does go on, the second sentence is a separate ground of criticism, as I understood it from the appellants, in that they say that you don't make that ground out, and therefore you don't get in the classification at all. I suspect you've got that on your list as well, but if not, add that to your list. I would be keen to hear your views in answer to that as well.

PN511

MR GUY: Well, I suppose in respect of that, and I always make an effort to be responsive to the Bench and what the Bench wants. The submission in respect of the respondent in the second part of that, the second paragraph, is that again, Mr Daly and his colleagues, do, through their technical knowhow and judgment, within an area of technical work, undertake those job tasks. That is indeed in the outline of submissions. Again, I think at paragraph - sorry, there's brief reference to it at 22, but again, when looking at the work undertaken by the CCSS employees, they are directly applying practical technical knowhow and judgment in an area of technical work to undertake job tasks.

PN512

Now, I would submit that that is - the technical work is the knowledge of telecommunications and information technology to undertake job tasks, that being the more technical customer enquires that a CCSS would be receiving. Things like, as was dealt with below, identifying faults, and again it's in 21(t), setting up VPN's and the like. That is, is the submission of the respondent, technical work that is undertaken through job tasks that arrive by virtue of the phone calls that they receive.

PN513

DEPUTY PRESIDENT BELL: Am I right in saying from that by implication, you're not relying on the specific discipline element of that limb?

PN514

MR GUY: The issue of specific discipline is a curious one. It would be a secondary argument that they are in the alternative, involved in the discipline of communication ad information technology and applying that. But the primary position of the respondent would have to be, and is, that they're applying or engaging in an area of technical work to undertake job tasks.

PN515

COMMISSIONER MIRABELLA: Mr Guy.

PN516

MR GUY: Yes, Commissioner.

PN517

COMMISSIONER MIRABELLA: I'm a little confused here. If you're saying it's a secondary argument, can you please elaborate your understanding of specific discipline, because you've lost me there somewhere.

PN518

MR GUY: Yes, I understand Commissioner. Certainly, in respect of the fact that telecommunications and information technology, we would submit, or I would submit, is an area of discipline to which these people have knowledge and they're applying that. Just bear with me for a moment. Now, there was - sorry, I apologise. I'm just trying to get this appeal book up. There was some objection, or a point made by Mr Tamvakologos in respect of the amount of down time undertaken by Mr Daly in the CCSS employees.

PN519

Now, the evidence that was available to the Commissioner below and is available to the anybody who determines this matter, really relates to - I think it was described as an electronic view. It's a collection of recordings which, as I understand, the Full Bench has access to, and otherwise, the cross-examination and the witness statements.

PN520

All I would say on that point really, is that's the extent of the evidence and the Commission, if the matter is to be redetermined, would have to make a decision based solely on what is available. The amount of downtime in my submission certainly is, not particularly relevant. It doesn't, in my submission, get us any further in determining whether Mr Daly and his colleagues are technical employees and non-technical employees. Just merely that they have downtime is just a fact of the job. Certainly, in that respect, the submission of the respondent is no issue arises in that regard.

PN521

In summary, and in a nutshell, the position of the respondent in relation to the appeal and the appeal grounds one through six, are two-fold. First of all, that the Commissioner at first instance arrived at the correct decision and did so for the reasons that are in our outline of submissions. But in consideration of what has been submitted orally by the appellant, the position of the respondent is quite simply, that the correct decision - even if the decision was arrived at in the incorrect manner and the process undertaken by the Commissioner at first instance was not proper and gives rise to error, the Commission on rehearing, whether that be done by the Commissioner or by this Bench, would still arrive at the same decision. Again, the reasons for that are in the written outline of submissions and have been highlighted by me just before in respect of paragraph 21(t) of the decision.

PN522

Now, unless there are any specific questions in respect of appeal grounds one through six, I did not propose to elaborate much further than that.

PN523

Moving further to ground seven of the appeal, there was a point raised in respect of the job mapping in the award that related to customer contact roles and that under the 2015 award, the type of work that Mr Daly and the CCSS's undertook, was work that fell within a non-technical role. Then there was also submission made in respect of the fact that my client made - had filed and agreed to a form F18 and therefore agreed with the content of that agreement.

PN524

As I understand it, the form F18 is not in evidence and I don't know what that form F18 said. Certainly, in my submission, the Commission when considering this should look to the fact that basically, the first submission is that the Commission need not get to the point of looking at the impact that the award has had on the determination of whether the CCSS employees are technical or non-technical because the matter can be resolved in a simple reading of the definitions in applying the work undertaken by the CCSS's. But if it is, it's the submission of the respondent that the Commission need not take into account what was a previous agreement and otherwise forms some basis simply because the award was as it was; the agreement is as it is. So, it's the submission of the respondent that need not be taken into account.

PN525

Moving on to - - -

PN526

DEPUTY PRESIDENT BELL: Sorry, just before we hear from the award, putting aside - I think I accept what you say about whether there was agreement or not with an F18 or otherwise. But is there relevance - and I was asking the question before about does the award provide context for construing, particularly the word 'technical' as it's used in the agreement, given that the agreement was replacing the operation of an award, which itself, had a number of roles described in technical classifications?

PN527

MR GUY: Sorry, Deputy President, your question is, is the award of assistance, if need be? As I understand it, it wasn't in the matter below, but the parties did make submission and I can get a pinpoint, because I don't have it before me. But the parties submitted on this issue below. It hasn't been dealt with very much by the Commissioner, I accept that, but my understanding and my submission is that again, the award doesn't get the Commission very far. It's a new set of definitions, is my understanding and instruction, that have been important to the agreement. So, the assistance the Commission would get from the award, is limited, if not of no assistance.

PN528

DEPUTY PRESIDENT BELL: Thank you.

PN529

MR GUY: Thank you. Now, moving on to the ground eight, and I think it was also described as 10(d), as part of the on the bus objections, or catch-all ground. The Commissioner's reliance on the marketing websites used by - that Telstra has and as I understand it, or as I recall, the Deputy President had a look at the website as Mr Tamvakologos was speaking. The submission of the respondent in respect of this again, and we rely on our written submissions, primarily is that it was open to the Commissioner to view these websites and to consider what is offered and how it is put to the public at large.

PN530

A great deal was looked at - was made of paragraph 69 and indeed, your Honour made mention that the word or the phrase 'technology bias was caught', was distinct from that of technical, or the phrases that exist in the definition, and there is a distinction there. However, as one can see at appeal book 52, paragraph 70, what is marketed there in respect of the Telstra business services, which again as I understand it, when one calls the Telstra Business Services number or gets in contact with them, they're forwarded to a CCSS. It is again marketed as reliable IT support.

PN531

That again is, in the submission of the respondent, the offer of, or suggesting to the public at large, that what they are being offered, at least in respect of the business services, is IT support, that being technical support in respect of information technology and indeed, falling within the tasks that one sees in respect of paragraph 21(t). Again, although what it doesn't go to, and it needs to be said also, is not matters that relate to complaints about billing and what have you.

PN532

Now, again, it is conceded that from time-to-time Mr Daly and his colleagues, CCSS colleagues, would deal with non-IT related matters. But again, in the respondent's submission, it's our submission that the Commissioner was right in looking at these matters and looking at the way in which it was marketed to the public at large, particularly in respect of paragraph 70. That what customers would receive, again, particularly in respect of business services, is reliable IT support. It goes on further to seek whether you need to solve an issue or seek professional IT advice. Again, in respect of that, and in the respondent's submission, it was open to the Commission below to make those findings, based on the promotional material. The Commissioner below highlighted that at paragraph 76.

PN533

In respect of ground nine of the appeal, dealing with paragraph 63 of the decision, reliance is placed on the written submissions. The submission of the respondent really is that this is a common obiter from the Commissioner in respect of really, a statement of what the Commissioner below believed, or believes that employees should see their role within a workplace. In the submission of the respondent, this doesn't in any way effect the further consideration made the Commissioner below. It's paragraph 64 onwards, in answering question three. With respect, the position of the respondent is that the appellant is reading a great deal into what is an introductory paragraph, explaining what importance that person puts on how their job role is defined and viewed within their workplace.

PN534

In the submission of the respondent, there is nothing again, at paragraph 64 onwards, that would suggest that the Commission engaged in a process or an approach that sought to have a beneficial construction simply just for the benefit of the applicant at first instance, that being Mr Daly. Certainly, in the submission of the respondent, it is, and as has been highlighted previously, a mere introductory paragraph, that exists, again, without any impact on the rest of the decision.

PN535

There are references that Mr Tamvakologos took the Full Bench to in respect of beneficial construction or how to approach construction when undertaking that process. But again, there is nothing more than a statement from the Commission in passing, and there is nothing again that suggests that this paragraph represents anything more than, certainly in my respectful submission, introductory. Certainly, it is a narrow point and one that, certainly in my submission, should be seen as introductory.

PN536

Moving through to paragraph 10(c), which I think is dealt with separately from the rest of the on the bus appeal ground. There was submission made again, about scripts and guidance material. This has been - I've dealt with this in some detail before, but the submission of the respondent, really, in respect of that is, that yes, scripts do exist, but they are there for the benefit of the CCSS employees and that of Mr Daly. They in no way, in a practical sense, impact on the manner in which he and his colleagues apply the skills and knowledge that gets them within the customer support (technical) role.

PN537

Although they exist, certainly it is the submission of the respondent, that employees - it is well-know; I don't think it's controversial to say something like this, employees in all sorts of roles have access to guidance material and scripts that allow them to execute their practical skills and knowledge in a variety of industries, whether it be, again in this case, it's telecommunications and information technology. But it's certainly the submission of the respondent - - -

PN538

DEPUTY PRESIDENT GOSTENCNIK: Law firms call them precedents.

PN539

MR GUY: Sorry?

PN540

DEPUTY PRESIDENT GOSTENCNIK: Law firms call them precedents.

PN541

MR GUY: I was perhaps going to use the flight manual for a pilot as well. But yes, you're right, your Honour. It would certainly be the submission of the respondent, that those sort of documents exist, again in a variety of industries and certainly can't in any way, take away from practical skills and knowledge, again whether it be a solicitor using a precedent or a pilot using an operations manual for start a jet and fly. So, in that respect, I would submit that there is no error in that regard.

PN542

Furthermore, in that respect, the Commissioner, below deals with, or makes findings that at paragraph 60(e) that - and I don't think this is in contest, (e) and (f), he was not mandated to use the scripts, and does not always use the scripts because of his depth of knowledge and experience. Again, in that respect, we would say, is indicative of the fact that there is no error arising in that respect.

PN543

DEPUTY PRESIDENT BELL: How does that reconcile with 60(a), which is, it was not required to have any particular skill or qualification for the role? I mean, in one sense, viewing the depth of his knowledge and experience is a reflection of the depth and knowledge and his familiarisation of the scripts and perhaps augmented by what he describes as Google and YouTube searches from time to time, and other matters.

PN544

MR GUY: Sorry, excuse me, your Honour. The question being of course, how do the two reconcile together? The finding in 60(a) in my submission, your Honour, is more - and again this gets to the point that was made by Mr Tamvakologos that although Mr Daly does not have a qualification - sorry, he does have an IT qualification, but he doesn't require it to do the role. Indeed, the Full Bench was taken to the fact that his colleagues, some of which worked in retail or fast food or various other places, before they came to the CCSS role.

PN545

However, that in the submission of the respondent does not take away from the fact that when looking at this definition initially and applying the definition, does not take away from the fact that these people are applying practical skills and knowledge they've otherwise accumulated or are using. The mere fact that they don't have to have a technical qualification, certainly in my submission, does not take away from that.

PN546

DEPUTY PRESIDENT BELL: But after the training that they undertake, and I think I've seen references to it, was three or four weeks for the platinum service and four weeks I think, for the business service.

PN547

MR GUY: Yes.

PN548

DEPUTY PRESIDENT BELL: Does that bring them within those final words of the second paragraph of the technical definition, which is that at that point they would now be working within a specific discipline or area of technical work for their job tasks?

PN549

MR GUY: We agree with that, yes, that's the case. They've undertaken that map; they've undertaken the training. They then have skills and knowledge as a consequence and it's augmented by the scripts and the guidance they receive. Again, it's distinct from, for example, dealing with a billing enquiry or a customer complaint enquiry where one does not need that training or core knowledge. To use an example going the other way, if there was training or what have you on the job, or a lines person, or something of the sort, that's the training that they receive to obtain or to have an understanding or apply practical skills or knowledge.

PN550

DEPUTY PRESIDENT GOSTENCNIK: Mr Guy, without wanting to be overly controversial, I'm told by my Associate that Commissioner Mirabella is having a technical issue. So, we might just have a short adjournment for about 10 minutes.

PN551

MR GUY: If the Commission pleases.

PN552

DEPUTY PRESIDENT GOSTENCNIK: Thank you.

SHORT ADJOURNMENT [3.31 PM]

RESUMED [3.41 PM]

PN553

DEPUTY PRESIDENT GOSTENCNIK: Yes, Mr Guy.

PN554

MR GUY: Thank you, your Honour. Now, I was just about to address the Bench on ground eleven, and then just sum up on where the respondent is at. The issue in respect of ground eleven is borne out of the fact that the Commissioner engaged in a - there was a finding in respect of long history of the classifications and did not put back those views to the appellant and did not provide reasons.

PN555

Certainly, in the view of the respondent, that was - and this is dealt with in our outline of submissions, the fact that the appellant was on notice that the Commission was considering those matters and the parties did indeed, have an opportunity to provide a response. That is dealt with at paragraph 401 to 409 which starts at appeal book 102. Indeed, the Commissioner highlights that he's considering those issues and goes on to say that he was making observations and open to being persuaded.

PN556

Certainly, in the view of the respondent, our view is that there was sufficient opportunity for both parties to make submissions in respect of the appellant's classification regime. The addition to that, the submission in respect that he was entitled to make the findings that he did, and again, the findings that he has made are relatively limited and in the submission of the respondent, don't overly affect the outcome and do not give bias to appellable error.

PN557

Unless there's any specific questions on that point, again, the respondent has made the submission, and it remains, that the decision itself is not affected by appellable error. But the Commissioner below, having seen all the evidence, having had the benefit of quite extensive submissions from both sides, having had the benefit of - as I said, I think it was described as a virtual view or inspection, but nevertheless, some recordings which do go to the nature of the work that Mr Daly was involved in, and his colleagues were involved in. The Commissioner, correctly made a call and undertook a decision-making process that was correct and right in classifying Mr Daly and his CCSS colleagues as CS&T, Customer Service Technical Employees.

PN558

The position of the respondent is, even if that is wrong; even if this Full Bench is to find that the Commissioner arrived at his decision incorrectly and was affected by error and the matter need be redetermined, first of all, the position of the respondent is that it is best, the Commissioner having again dealt with extensive and technical evidence on these points, and having had the benefit of listening to the views and having seen the witnesses and what have you, should redetermine the matter. But if the Commission, the Full Bench is against me on that, if the Full Bench is to redetermine this matter, considering all of the evidence and considering everything that's gone before it, the Full Bench should find that the work undertaken by Mr Daly and his colleagues fits appropriately when applying all of the relevant tests into the customer service (technical) role, for all the reasons we've outlined and that don't need repeating. But again, in summary, when looking at paragraph 21(t), when looking at the work undertaken through the views, and when applying the correct approach to the definitions that are contained in the agreement.

PN559

Unless there are any questions from the Bench, they are the submissions of the respondent.

PN560

DEPUTY PRESIDENT GOSTENCNIK: Thank you Mr Guy. Mr Tamvakologos, using a Shane Warne length run-up, anything in reply?

PN561

MR TAMVAKOLOGOS: Your Honour, we have nothing in reply.

PN562

DEPUTY PRESIDENT GOSTENCNIK: All right, well in that case - well, I should just circle back to you Mr Guy. Is there any need for any supplementary submission from your end?

PN563

MR GUY: No, thanks.

PN564

DEPUTY PRESIDENT GOSTENCNIK: That was a no, I think I missed that, but no, thank you.

PN565

All right, well, in those circumstances, we will reserve our decision. We thank both counsel for their helpful written and oral submissions. We are otherwise adjourned. Have a good day.

PN566

MR TAMVAKOLOGOS: Thank you, Deputy President.

ADJOURNED INDEFINITELY [3.48 PM]