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Fair Work Act
2009
s.604—Appeal of decision
NSW Trains
v
Mr Todd James
(C2021/4959)
JUSTICE ROSS, PRESIDENT
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT ASBURY
DEPUTY PRESIDENT EASTON
COMMISSIONER P RYAN
MELBOURNE, 19 OCTOBER 2021
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)?’
[2021] FWCFB 6047
ADDENDUM TO STATEMENT AND
DIRECTIONS
AUSTRALIA FairWork Commission
[2021] FWCFB 6047
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[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
Printed by authority of the Commonwealth Government Printer
PR735674
HE F ORK NORA COMMISSION THE SEALOR
