Telephone canvassers under NSW clerks award

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Telephone canvassers under NSW clerks award

The NSW Industrial Relations Commission has made a minimal terms award covering telephone canvassers - including them within the terms of the Clerical and Administrative Employees (State) Award.

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10/03

 

The NSW Industrial Relations Commission has made a minimal terms award covering telephone canvassers - including them within the terms of the Clerical and Administrative Employees (State) Award.

The disagreement as to appropriate rates and conditions led the Commission to, at this stage, set minimal terms.

The Commission was critical of the parties for failing to confront the current state of the industry and appropriately address employees working in call centres.

In the Commission's view, by persisting with the term ‘telephone canvassers’ and not taking the opportunity to bring the term into line with what is happening in the modern workplace including call centres, the parties were perpetuating a most unsatisfactory system of industrial regulation for that group of employees.

Background

The Commission had before it two applications in relation to the Clerical and Administrative Employees (State) Award.

The application by the Federated Clerks' Union of Australia, NSW Branch sought to vary cl 42(ii) Area, Incidence and Duration, of the Clerical and Administrative Employees (State) Award (the Clerical Award) in terms of its Amended Schedule filed 3 April 2002, to include the words 'telephone canvassers (other than canvassers for the sale of goods)'.

That being done, the conditions and rates of pay of the Clerical Award would automatically apply to employees falling within that category.

On the other hand, the Employers First application was in terms of an application for a new award. However, by consent, Employers First in these current proceedings, pressed for two variations only. The first variation sought was the same as that of the FCU, namely to vary cl 42, Area Incidence and Duration in the same way.

The second variation sought by Employers First was the insertion into the Award of a new sub-cl 5.2 with provisions specific to telephone canvassers and different in some respects from those applying generally under the Award, especially as to wages and hours.

Conclusions

The applications were concerned with bringing 'telephone canvassers (other than canvassers for the sale of goods)' within award coverage.

The only direct employer evidence received came from the charities area.

Justice Glynn continued:

'Although some employees did give evidence as to their perceptions of the management of the organisations by which they were employed, an overview of their evidence ... suggested that the perceptions, though genuinely held and which did not influence an outcome, were not entirely accurate.

'There were areas where the evidence of employers would have been useful to present a clearer picture.

'...The existence of the category "telephone canvassers (other than canvassers for the sale of goods)" as the evidence shows, can lead to situations both farcical and futile.

'It throws up the possibility of much time being wasted in disputes as to such fine points as whether a telemarketer asking a person to buy a diary or a set of knives to aid a charity is a canvasser for the sale of goods while doing so, and, so, and I make no finding on that point, is then not covered by the award, whereas when, in the alternative in that same call, he/she asks for a donation for that charity, he/she would be covered.

'The first problem lies in the retention of a restriction which probably was relevant in an earlier era. The fact that the term distinguishes "canvassers" from "canvassers for the sale of goods" suggests that it was differentiating, for instance, between commercial travellers or people who sold goods door-to-door.

'By not taking the opportunity to bring the term into line with what is happening in the modern workplace including call centres, the parties are perpetuating a most unsatisfactory system of industrial regulation for that group of employees.

'In a call centre per se or in an organisation where telemarketing, under whatever term is used, is carried on, employees could have either coverage under the Clerical Award or no award coverage at any given time depending upon whether they were properly described as "telephone canvassers not for the sale of goods" or "telephone canvassers for the sale of goods".

'The award coverage of an individual could change during the same shift in accordance with the particular campaign being run by the call centre.

'The second problem lies in the now agreed restriction of coverage to "telephone" canvassers. "Canvasser" is an older term but it does embrace a wider group of employees than the more recent term "telemarketer" or variants of that term.

'Although evidence was not brought in respect of certain employees, after the applications were amended to confine the provisions sought to "telephone" canvassers, it is clear that there are persons who could be classed as "canvassers (other than for the sale of goods)", who do not use the telephone eg selling memberships to gyms in shopping malls. That agreed amendment left the possible coverage of such employees even more fragmented or non-existent.

'There are not only present difficulties but also possible future difficulties in tying the function of the employee to the tool used, i.e. to the telephone or similar technology. General knowledge suggests that not everyone regards the ability of canvassers to contact people in their homes as being in the public interest. Legislation, on my understanding, is already in place to set time limits on such contacts. (Those possible future difficulties are raised for the consideration of the parties and have played no part in this decision.)'

To allow for a restructure of base rates to occur, the variations now made to the Clerical Award, are to operate on and from the first pay period to commence on or after 2 February 2004.

See: Clerical and Administrative Employees (State) Award [2003] NSWIRComm 345 - Glynn J - 24 October 2003.

 

 

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