ADDENDUM TO STATEMENT AND DIRECTIONS

Fair Work Act 2009
s.604—Appeal of decision

NSW Trains
v
Mr Todd James
(C2021/4959)

Appeal against decision [2021] FWC 4733 of Deputy President Saunders at Newcastle on 3 August 2021 in matter number U2021/3757.

[1] This Full Bench has been constituted to hear and determine the appeal from a decision of Deputy President Saunders ([2021] FWC 4733) in which the Deputy President determined that Mr James had been demoted in his employment within the meaning of s.386(2)(c) of the Fair Work Act 2009 (Cth) (the Act). On 12 October, we issued a Statement and Amended Directions in respect of this matter ([2021] FWCFB 4959).

[2] At [2] of the 12 October Statement, we identified a number of issues raised in the appeal concerning the proper construction and correct application of s.386 of the Act. At point 6 in [2] we identified the following issue:

‘6. If a person is ‘demoted in employment’ and the demotion does ‘involve a significant reduction in … remuneration or duties’ within the meaning of s.386(2)(c), then has the person been ‘dismissed’ within the meaning of s.386(1) even if the person’s employment has not been terminated on the employer’s initiative within the meaning of s.386(1)?’

[3] On reflection, we have decided to reframe this issue as follows:

‘6. If a person is demoted in employment and the person remains employed with the employer that effected the demotion and, for the purposes of s.386(2)(c) the demotion does involve a significant reduction in remuneration or duties, then:

1. Has the person been ‘dismissed’ for the purposes of Part 3-2 of the Act?

2. Has the person’s ‘employment … been terminated on the employer’s initiative’ for the purposes of s.386(1)(a)?’

[4] This amendment also requires a consequential amendment to issue 7, as follows:

‘7. If the answer to questions 6.1 or 6.2 is ‘yes’, then where an employer imposes fundamental changes to an employee’s contractual arrangements that are detrimental to the employee, but the employee ‘remains employed by the employer’, is it only where those changes constitute a ‘demotion in employment’ involving ‘a significant reduction in … remuneration or duties’ that the employee has been ‘dismissed’ within the meaning of s.386?’

[5] All other Directions remain as stated in the 12 October Statement.

PRESIDENT

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