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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, 12 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] FC 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). The Deputy President determined that the demotion
involved a significant reduction in Mr James’ remuneration, and therefore, Mr James had been
dismissed within the meaning of s.386 of the Act.
[2] The appeal raises a number of issues concerning the proper construction and correct
application of s.386 of the Act, in particular:
1. Does the expression ‘employment … has been terminated’ in s.386(1)(a) mean that
the:
employment relationship has been terminated
contract of employment has been terminated, or
employment relationship or the contract of employment has been terminated?
2. Where an employer imposes fundamental changes to an employee’s contractual
arrangements and the employee continues to work for the employer, can those
changes give rise to the termination of one employment relationship and the
commencement of a new employment relationship?
3. What is the meaning of the expression ‘demoted in employment’ in s.386(2)(c)?
[2021] FWCFB 6022
STATEMENT AND DIRECTIONS
AUSTRALIA FairWork Commission
[2021] FWCFB 6022
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4. What is the meaning of the expression ‘a significant reduction in … remuneration
or duties’ in s.386(2)(c)(i)?
5. What is the meaning of the expression ‘remains employed with the employer that
effected the demotion’ in s.386(2)(c)(ii)?
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)?
7. If the answer to question 6 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?
8. If an employer exercises rights under a statute, enterprise agreement or contract of
employment to demote a person and the demotion involves a significant reduction
in the person’s remuneration or duties within the meaning of s.386(2)(c)(i), has the
person been ‘dismissed’ within the meaning of s.386?
[3] Given the importance of the issues raised in the appeal, the President has decided to
refer this matter to a 5 Member Full Bench. The hearing listed for Thursday, 7 October at
11.00am (AEDT) was adjourned and it will be relisted for 9.30am on Monday, 13 December
2021.
[4] NSW Trains (the Appellant) has applied pursuant to s.596(2) of the Act for permission
to be represented at the hearing by Mr Michael Seck of Counsel, instructed by McCullough
Robertson Lawyers. Mr James (the Respondent) has also applied for permission to be
represented at the hearing by Mr Yaseen Shariff SC and Ms Vanja Bulut. The applications for
permission to be represented will be decided by no later than 4.00pm on Wednesday 10
November 2021.
[5] The Directions issued 10 September 2021 are now vacated. The following Amended
Directions are made:
1. The Appellant is granted liberty to file a replacement written submission concerning
permission to appeal and the merits of the appeal. The replacement submission will
completely replace the earlier submissions and shall be filed in the Commission and
served on the Respondent by 4.00pm on Friday, 5 November 2021.
2. The Respondent shall file in the Commission and serve on the Appellant a written
submission in response to the Appellant’s submission by 4.00pm on Friday, 26
November 2021.
3. The Appellant shall file in the Commission and serve on the Respondent a written
submission in reply by 4.00pm on Friday 3 December 2021.
[2021] FWCFB 6022
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4. The written submissions filed in accordance with Directions 1 to 3 must include
submissions directed at each of the issues set out at [2] above.
5. The parties shall file in the Commission and serve on the other party a document,
not exceeding one A4 page in length, which indicates whether the other party’s
application for permission to be represented at the hearing of the appeal by a lawyer
or paid agent (see [4] above) is opposed and, if so, the reasons for that opposition,
by 4.00pm on Monday, 8 November 2021.
6. The parties must only provide the Full Bench with any relevant authorities from
which they intend to read on the day of the hearing. Any party that wishes to read
from authorities on the day of the hearing shall provide an index or replacement
index and electronic copies of the authorities 24 hours prior to the hearing.
These should be provided as hyperlinks from the index of authorities.
7. The parties are granted liberty to apply to the Presiding Member of the Full Bench
to vary the above directions. Any such application should be made in writing and
sent to the Presiding Member’s Associate as identified at the foot of the notice of
listing.
8. All submissions are to be filed in both Word and PDF format and sent to
chambers.ross.j@fwc.gov.au.
9. The matter will be listed for hearing on Monday 13 December 2021 at 9:30am
(AEDT), a separate Notice of Listing will be issued shortly.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR734766
mailto:chambers.ross.j@fwc.gov.au
