United Firefighters' Union of Australia v Fire Rescue Victoria

Case •

[2025] FWCFB 177

•

12 AUGUST 2025

[2025] FWCFB 177

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

United Firefighters’ Union of Australia
v

Fire Rescue Victoria

(C2025/3331)

VICE PRESIDENT GIBIAN
DEPUTY PRESIDENT HAMPTON
DEPUTY PRESIDENT FAROUQUE

SYDNEY, 12 AUGUST 2025

Appeal against decision [2025] FWC 892 of Commissioner Wilson at Melbourne on 31 March 2025 in matter number C2024/7809 – Dispute under the Fire Rescue Victoria (Former MFB) Corporate & Technical Employees Agreement 2017 – Suspension of two employees – Employees suspended as a result of findings made by the Victorian Independent Broad-based Anti-corruption Commission –Whether dispute within the scope of the dispute resolution provision – Whether failure to comply with procedure in clause 86 of Agreement in dealing with the disciplinary matter involving the employees – Whether decision to suspend affected by a reasonable apprehension of bias – Whether decision to suspend unreasonable and/or irrational – Appeal allowed – Directions made for further conduct of dispute.

Introduction

  1. This appeal concerns a decision to suspend two employees of Fire Rescue Victoria (FRV), Vicky Pyliotis and Stephan Trakas. Ms Pyliotis and Mr Trakas were suspended following the publication of a report of the Victorian Independent Broad-based Anti-corruption Commission (the IBAC) which made findings in relation to both employees. The United Firefighters’ Union of Australia (the UFU) notified a dispute in relation to the decision to the Commission under clause 16, Dispute Resolution, of the Fire Rescue Victoria (Former MFB) Corporate & Technical Employees Agreement 2017 (the Agreement).

  1. FRV objected to the jurisdiction of the Commission to deal with the dispute. FRV contended that the dispute is a dispute arising under clause 86 of the Agreement, Management of Misconduct, and could not be dealt with under clause 16 by operation of clause 86.13. Clause 86.13 relevantly provides that “[a]ny dispute arising under this clause may only be dealt with in accordance with clause 16 (Dispute Resolution) when there has been a failure to comply with the procedure set out in this clause …”.

  1. The dispute was allocated to Commissioner Wilson. The Commissioner conducted a hearing in relation to the jurisdictional objection raised by FRV. The Commissioner found that the dispute was not able to be raised or dealt with by the Commission under clause 16 of the Agreement and determined the dispute accordingly.[1] In substance, the jurisdictional question turned upon whether there had been a failure to comply with the procedure set out in clause 86 for the purposes of clause 86.13. The Commissioner found there had not. The UFU says the Commissioner was wrong to do so and appeals the decision.

  1. A range of grounds were advanced by the UFU at first instance as to why it said there had been a failure to comply with the procedure set out in clause 86. On appeal, two contentions are made. First, ground 1 in the notice of appeal contends that the decision to suspend involved a failure to accord procedural fairness as a result of the decision being affected by apprehended bias and that the Commissioner erred in finding otherwise. Second, grounds 2 and 3 in the notice of appeal contend that the Commissioner failed to address, or erred in failing to accept, the contention that the decision to suspend Ms Pyliotis and Mr Trakas was unreasonable and/or irrational and not authorised by clause 86 for that reason.

  1. For the reasons that follow, to the extent necessary permission to appeal should be granted. The appeal should be allowed on the basis set out in ground 1. Ground 2 should be rejected. The dispute will be remitted to a member of the Full Bench.

Factual background

  1. The background to the proceedings at first instance is as follows. As has been observed, Ms Pyliotis and Mr Trakas were the subject of adverse findings in a report published by the IBAC. The conduct which is the subject of those findings involved allegedly accessing or disclosing information of the then Metropolitan Fire Brigade (the MFB) without authorisation and is alleged to have occurred in 2018 and 2019.

  1. The MFB initially notified the IBAC of allegations in relation to Mr Trakas in June 2018 to the effect that Mr Trakas had accessed the email accounts of MFB executives without authority. In January 2019, the IBAC decided to commence an investigation which was known as Operation Turton. Operation Turton apparently “concluded” in June 2021. The report, however, was not published until 25 September 2024.

  1. The Fire Rescue Commissioner is Gavin Freeman. On 1 October 2024, Mr Freeman notified both Ms Pyliotis and Mr Trakas that he had “determined that it is appropriate to suspend you from employment with pay, effective immediately, in accordance with clause 86.6 of the EA”. In the correspondence, Mr Freeman informed Ms Pyliotis and Mr Trakas that:

As you are aware, the Independent Broad-based Anti-corruption Commission (IBAC) conducted an investigation, which identified repeated instances of unauthorised access and disclosure of sensitive information by various employees (IBAC Investigation). The employees who were the subject of the IBAC Investigation were formerly employed by the Metropolitan Fire Brigade (MFB) and are currently employed by Fire Rescue Victoria (FRV).

On 25 September 2024, IBAC published its report on the IBAC Investigation (Report). The Report identified a problematic workplace culture at MFB that led to repeated instances where employees misused sensitive information to advance personal and industrial interests.

You are identified in the Report as one of the employees who accessed or disclosed MFB information without authorisation between April 2018 and May 2019. I consider that this conduct may amount to misconduct under clause 86.2 of the Fire Rescue Victoria (Former MFB) Corporate & Technical employees Agreement 2017 (EA).

Given this, I have determined that it is appropriate to suspend you from employment with pay, effective immediately, in accordance with clause 86.6 of the EA.

  1. The letters of 1 October 2024 set out further details in relation to the terms of the suspension, including:

You will remain suspended with pay until such time that FRV has reviewed the findings of the Report and determined the appropriate next steps in the management of your alleged misconduct.

I confirm that FRV has not made any decision regarding your employment and your suspension in no way represents an adverse determination against you. The suspension should not be taken as suggesting that FRV has reached any view regarding the concerns raised about you.

Effective today, you will be suspended from work with pay. This means:
• you are not to perform any work for FRV;
• you must remain away from FRV's premises; and
• you must not have any contact with FRV employees, except for contacting the key contact below regarding this matter and save for contact with your support person and/or representative.

Any breach of the above directions will be treated as serious misconduct, which may result in the immediate termination of your employment.

Your access to FRV’s electronic systems (including email systems, file management systems and databases) will be restricted until you are otherwise advised.

  1. On 10 October 2024, Mr Freeman sent further letters to Ms Pyliotis and Mr Trakas informing them that he had determined to commence an investigation into the alleged misconduct. The letter stated:

Given the serious nature of the information outlined in the Report, I determined that it is appropriate to commence an investigation into the alleged misconduct in accordance with clause 86.9 of the EA (Investigation).

  1. The correspondence of 10 October 2024 provided further information in relation to the investigation process. The letters did not indicate any further decision had been made in relation to the suspension of Ms Pyliotis and Mr Trakas or that any further consideration had been given to the suspension. FRV and Ms Pyliotis and Mr Trakas appear to have assumed the suspension continued.

  1. On 15 October 2024, the UFU commenced grievances in relation to the investigation concerning, and the suspension of, Ms Pyliotis and Mr Trakas. The grievances raised a range of matters in relation to the suspensions and proposed investigations, including that Ms Pyliotis and Mr Trakas had not had an opportunity to respond to a proposal to suspend them from their employment, that FRV had failed to provide specifics of any allegations of misconduct, that Mr Freeman was now affected by apprehended or actual bias, that the conduct subject of the allegations was reported to the MFB over 6 years previously, that the allegations arose by reason of union activities engaged in by Ms Pyliotis and Mr Trakas and the suspension letter was based on telephone intercept materials. The letter demanded the withdrawal of the suspension letter.

  1. On 24 October 2024, Mr Freeman sent a letter to Paul Mullet of the UFU providing a response to the grievances of 15 October 2024. After summarising the contentions made in the UFU’s grievances, Mr Freeman stated:

At the outset, I completely reject any and all allegations as outlined in your letters and advise FRV’s view that the dispute is without foundation …

  1. The letter then provides a detailed response to the contentions made by the UFU in the grievances in which Mr Freeman rejects each contention. Under the heading “Next steps”, Mr Freeman then states:

We note that both letters seek a resolution of the disputes by way of an “immediate withdrawal of the suspension letter’ against both individual Respondents.

Despite FRV’s views regarding the merits of the UFU’s correspondence on behalf of the Respondents, strictly for the purpose of resolving those extant disputes under clause 16 of the Enterprise Agreement and as a gesture of good faith to assure your members that FRV has not pre-determined the allegations of misconduct against them, FRV has determined to withdraw the suspensions with immediate effect. While acknowledging you act on their behalf, we have copied the Respondents to this correspondence by way of formal notification of the withdrawal of their suspensions.

We confirm that the grievance procedure in respect of both Respondents is now at an end.

  1. Also on 24 October 2024, Mr Freeman sent separate letters to Ms Pyliotis and Mr Trakas in the same terms entitled “RE: Proposed suspension from employment with pay” which advised that Mr Freeman was considering suspending Ms Pyliotis and Mr Trakas in accordance with clause 86.6(a)(v) of the Agreement. The letters continued:

Clause 86.6(a) of the Agreement provides that Fire Rescue Victoria (FRV) may suspend an employee with pay where misconduct is alleged. I refer to my letter of 10 October 2024 and confirm that I consider that you may have engaged in misconduct because you are identified in the report published by the Independent Broad-based Anti-corruption Commission (IBAC) on 25 September 2024 (Report) as having accessed or disclosed Metropolitan Fire & Emergency Board information without authorisation between April 2018 and May 2019. I consider that this conduct may amount to misconduct under clause 86.2(a), (b) and (d) of the Agreement.

For the avoidance of doubt, and as you know, your alleged misconduct occurred between April 2018 and May 2019, which was the subject of an investigation conducted by IBAC between January 2019 and June 2021 (IBAC Investigation). While the organisation was aware of, and had concerns regarded, some of the conduct considered in the Report, FRV did not take any action against you in relation to your alleged misconduct until now for the purposes of ensuring the integrity of the IBA Investigation. That is, if FRV had taken action to commence a misconduct process (including, but not limited to, suspending you from your employment) during the IBAC Investigation, it may have impacted IBAC’s ability to obtain evidence and make findings. Notwithstanding this, FRV remained and remains concerned about the matters outlined in the Report.

Preliminary view

Having regard to the above, I confirm that my preliminary view is that an appropriate and proportionate interim response to the alleged misconduct is to suspend you from employment with pay, effective immediately, in accordance with clause 86.6 of the Agreement.

  1. The letters provided an opportunity for Ms Pyliotis and Mr Trakas to respond to Mr Freeman’s preliminary view by 28 October 2024. The letters then set out a direction to Ms Pyliotis and Mr Trakas under the heading “Lawful and reasonable direction” as follows:

You are directed to remain absent from duty on full pay, effective immediately, for the purpose of preparing your response (if any) to the proposed suspension. This means effectively immediately:

-you are not to perform any work for FRV;

-you are not to access FRV’s electronic systems (including email systems, file management systems and databases);

-you must remain away from FRV’s premises; and

-you must not have any contact with FRV employees, except for contacting me regarding this matter and save for contact with your support person and/or representative.

I will then consider your response (if provided) and make a final decision about whether you should be suspended from employment with pay. You are directed to remain absent from duty on full pay until such time that I have finalised my decision regarded the proposed suspension and provided you with my final decision in writing.

  1. On 4 November 2024, the UFU filed its application referring the dispute to the Commission under clause 16 of the Agreement. The relief sought in the application was the immediate withdrawal of the FRV proposal to suspend Ms Pyliotis and Mr Trakas and that the “FRV Commissioner recuse himself from any further involvement in the suspension process”. The subject matter of the dispute was described in Appendix 3 to the application. Appendix 3 included the following complaint:

9. Clause 86.5 (Procedural fairness and natural justice apply). The proposed suspension letter is signed by the Commissioner the same decision maker who initially suspended the member. The Commissioner should recuse himself from any further involvement in this matter and dealt with someone independent. If not, this is clearly a matter of bias and is therefore a breach of the clause.

  1. On 8 November 2024, FRV filed a response to the UFU’s application. FRV sought orders that the application be summarily dismissed on the basis that it is without jurisdiction. FRV contended that the application did not relate to matters within the scope of clause 86.13 of the Agreement.

  1. On 27 November 2024, Mr Freeman sent further correspondence to Ms Pyliotis and Mr Trakas entitled “RE: Proposed suspension from employment with pay”. The correspondence informed Ms Pyliotis and Mr Trakas that Mr Freeman had decided to suspend their employment with pay, subject to four weekly reviews, in accordance with clause 86.6 of the Agreement. The letters again set out the background to the disciplinary matters. Mr Freeman then set out his reasons for suspending Ms Pyliotis and Mr Trakas in the following terms:

The purpose of this letter today is to inform you of my decision in relation to the proposed suspension of your employment, which I informed you I was considered in my Letter re Proposed Suspension.

I have decided that it is an appropriate and proportionate interim response, in all the circumstances, to suspend you from your employment with pay, in accordance with clause 86.6(a)(v) of the Agreement.

In making my decision to suspend your employment, with pay, and subject to four weekly reviews, I have taken into account the nature and type of alleged conduct found by IBAC to have occurred. I have also taken into account that the nature of your role inevitably involves you, in the performance of your duties, having access to FRV’s computer system. While I make it clear – as I write above – that I have formed no conclusion about whether or not the alleged conduct occurred or it so what are its consequences – I consider that for the time being at least suspension of your employment, with pay and subject to four weekly reviews, is the most appropriate response.

I have taken into consideration the fact that the alleged conduct the subject of IBAC’s findings in the Operation Turton Special Report are said to have occurred between April 2018 and May 2019, and that until the publication of Operation Turton Special Report, you had continued performing duties in your employment. While this weighs against suspending you from your employment now, I again note that the previous stay on any consideration of a misconduct investigation was necessary for the purposes of ensuring the integrity of IBAC’s investigation.

While I am not pre-judging the outcome of the investigation and have not made any findings, I am cognisant of the serious nature of the matters set out in the Operation Turton Special Report and the extent of access to information which you have in your role. Balancing these considerations, I am satisfied that a suspension is necessary and appropriate in the circumstances.

  1. The dispute was then programmed for a hearing in relation to FRV’s jurisdictional objection. Both parties filed written submissions in relation to the jurisdictional issue. No witness evidence was relied upon by either party, but a bundle of documents was admitted into evidence. Although the UFU’s initial application referred to the proposal to suspend Ms Pyliotis and Mr Trakas contained in the letters dated 24 October 2024, the jurisdictional argument was conducted on the basis that the dispute now concerned the decisions of 10 October 2024 to commence an investigation and the decisions of 27 November 2024 to suspend Ms Pyliotis and Mr Trakas from their employment.

The Agreement

  1. The Agreement covers and applies to FRV and employees engaged in any of the occupations specified in the Metropolitan Fire and Emergency Services Board Administrative Officers, Professional Engineers and Support Staff Award 2000.[2] There is no dispute that this includes Ms Pyliotis and Mr Trakas. Relevantly, clause 16 is entitled “Dispute Resolution”. The type of dispute required to be dealt with in accordance with the clause is set out in clause 16.1 as follows:

16.1 The following dispute resolution procedure will apply to any dispute about a matter arising under this Agreement or a dispute about any matter for which express provision is made in this agreement, or a dispute about any matter pertaining to the employment relationship in respect of those to whom the Agreement applies, or a dispute in relation to the National Employment Standards with exception to matters raised in accordance with Schedule 5 where determination of the committee is final.

  1. Considered in isolation there is no issue that the proposed or actual suspension of an employee is at least a dispute about a “matter pertaining to the employment relationship in respect of those to whom the Agreement applies”. Given the reliance on clause 86.6(a)(v) in suspending Ms Pyliotis and Mr Trakas, the dispute is also a dispute arising under the Agreement or about a matter for which express provision is made in the Agreement.

  1. Where clause 16 applies to a dispute or grievance, a stepped dispute resolution procedure is to be followed which is set out in clause 16.3. Step 5 of the procedure is that, if the matter is not settled following progression through the disputes procedure it may be referred by the employee, the union or the employer who are party to the dispute to the Commission. The Commission may then utilise all its powers in conciliation and, if the dispute is not resolved, arbitration to settle the dispute as set out in the Act.[3]

  1. The operation of clause 16 is limited by clause 86. Clause 86 is entitled “Management of Misconduct”. Clause 86.1 sets out the purpose of the clause which includes, in clause 86.1(c), to “reflect the public sector values of integrity, impartiality, accountability and respect with the aim of ensuring that Employees are treated fairly and reasonably”. Clause 86.2 defines “misconduct”, clause 86.3 provides for unsatisfactory conduct to be considered in the misconduct process and clause 86.4 provides for representation. Clause 86.5 deals with procedural fairness and provides as follows:

86.5 Procedural fairness and natural justice to apply

(a)The process for managing Employee misconduct will be consistent with the principles of procedural fairness and natural justice.

(b)All parties involved in the misconduct process will commit to completing it as quickly as practicable.

(c)The Employer will:

(i)advise the Employee of the purpose of any meetings;

(ii)provide the Employee with a copy of the formal process to be followed;

(iii)provide a reasonable opportunity for the Employee to seek advice from the Union or a representative of their choice at any stage of the misconduct process; and

(iv)allow the Employee the opportunity to provide details of any mitigating circumstances.

(d)The Employer must take into account any reasonable explanation of any failure by the Employee to participate before making a decision under this clause 86.

  1. Clause 86.6 then permits various directions to be made in the event that an employee is alleged to have engaged in misconduct in the following terms:

86.6 Directions

(a)Where Employee misconduct is alleged, the Employer may do any of the following:

(i)make an initial assessment of the alleged misconduct before commencing the formal process to determine if an investigation is required in accordance with clause 86.9;

(ii)determine that it is appropriate to immediately commence an investigation of the alleged misconduct in accordance with clause 86.9;

(iii)direct the Employee to proceed immediately to perform alternative duties or work at an alternative place of work;

(iv)direct the Employee not to speak to other employees (excluding persons who are supporting the employee in the capacity of peer support, witness or support person) of the Employer about the matter or not to visit certain places of work; and/or

(v)suspend the Employee with pay.

(b)In the event that the Employer suspends the Employee With pay under clause 86.6(a)(v), the Employer will:

(i)review this decision no later than a date which is four weeks after the commencement of the suspension; and

(ii)confirm whether the suspension is to continue or is no longer necessary.

(c)The Employer will continue to review any decision regarding an Employee’s suspension every four weeks thereafter, until the end of the misconduct process in accordance with this clause 86.

  1. Clause 86.7 to 86.12 then set out the procedure to be followed in dealing with allegations of misconduct, including advising the employee of the allegations, investigation, provision of an opportunity to respond and determination of the disciplinary outcome. We observe that clause 86.7 requires that “as soon as practicable after an allegation of misconduct has been made, and the Employer has determined that an investigation is required, the FRV will advise the employee concerned of the alleged misconduct in writing”. It has not been contended on appeal that there is any error in the decision of the Commissioner regarding this aspect of the procedure required by clause 86.

  1. Clause 86.13 is then entitled “Disputes” and addresses the extent to which clause 16 can apply to misconduct matters. The clause provides:

86.13 Disputes
Any dispute arising under this clause may only be dealt with in accordance with clause 16 (Dispute Resolution) when there has been a failure to comply with the procedure set out in this clause or when any of the following are placed on the Employee’s personnel file in accordance with this clause (this may include whether clause 86 has been complied with in the Employer coming to a decision):

(a)a record of formal counselling;

(b)a formal written warning;

(c)a final written warning; or

(d)a record of discipline outcome.

  1. Clause 86.13 operates to exclude certain disputes from being dealt with in accordance with clause 16, including by being referred to the Commission. The UFU accepts that the dispute concerning the suspension of Ms Pyliotis and Mr Trakas and the decision to commence an investigation is a “dispute arising under this clause” for the purpose of clause 86.13. The consequence is that the dispute cannot be dealt with in accordance with clause 16 unless one of the two circumstances set out in the clause exists. There is no suggestion that any of the disciplinary outcomes listed in clause 86.13 has been placed on Ms Pyliotis’ or Mr Trakas’ personnel files. However, the UFU submits that “there has been a failure to comply with the procedure set out in this clause” at least in relation to the decision to suspend Ms Pyliotis and Mr Trakas.

  1. FRV appears to accept, in a broad sense, that clause 86.13 provides for two exceptions to the exclusion from the clause 16 procedure of disputes arising under clause 86. Counsel for FRV did submit that the second circumstance identified, namely, that a disciplinary outcome has been placed on an employee’s personnel file, evidenced an intention that the disputes procedure in clause 16 is not to be available to deal with procedural disputes which might arise during a disciplinary process and should await the conclusion of the process. FRV says that this is supported by the words in parentheses which permit a dispute concerning a disciplinary outcome to include a dispute about compliance with clause 86.

  1. We do not accept that the exception to the exclusion of a dispute from the clause 16 procedure is limited in the manner suggested by FRV. The use of the word “or” in clause 86.13 indicates that a dispute arising under clause 86 can be dealt with in accordance with clause 16 if either there has been a failure to comply with the procedure set out in the clause or a relevant disciplinary outcome is placed on the employee’s personnel file. Furthermore, if the submission of FRV were correct, the reference to a circumstance in which “there has been a failure to comply with the procedure set out in this clause” would be rendered superfluous and have no work to do. In our view, the apparent purpose of clause 86.13 is to prevent a dispute or grievance in relation to the merits of a disciplinary issue being progressed through the dispute procedure in clause 16 until the disciplinary process is complete. The clause, however, permits a dispute or grievance to be dealt with in accordance with clause 16 if there has been a failure to comply with the procedure required to be followed by clause 86 itself.

  1. Finally, it is appropriate to observe that Mr Freeman is a statutory office holder and Ms Pyliotis and Mr Trakas are public sector employees. Section 6 of the Fire Rescue Victoria Act 1958 (Vic) (the FRV Act) establishes FRV, indicates that FRV is “constituted by the Fire Rescue Commissioner” and that FRV is a body corporate. With respect to employees of FRV, s 25B of the FRV Act provides:

25B Employees of Fire Rescue Victoria
(1) Fire Rescue Victoria may from time to time—
(a) employ any persons that it considers necessary to assist it in carrying out its functions under this Act or any other Act; and
(b) transfer, promote, suspend or remove any employee.

  1. We understood the parties to accept that the power of Mr Freeman, as the Fire Rescue Commissioner, to suspend Ms Pyliotis and Mr Trakas must have involved an exercise of statutory power under s 25B(1)(b) of the FRV Act. FRV sought to emphasise that Mr Freeman referred to the suspensions being pursuant to clause 86.6(a)(v) of the Agreement. Clause 86.6(a)(v) of the Agreement provides that, where employee misconduct is alleged, FRV “may … suspend the Employee with pay”. Clause 86.6(a)(v) indicates a circumstance in which, consistently with the Agreement, an employee may be suspended. However, Mr Freeman, as a statutory office holder, can only exercise such powers as he has by statute. Mr Freeman could suspend Ms Pyliotis and Mr Trakas because he was conferred with the statutory power to do so by s 25B(1)(b) of the FRV Act.

Permission to appeal

  1. An appeal from a decision of the Commission generally requires permission under s 604(1) of the Act. However, an appeal from a decision made in arbitration of a dispute referred to the Commission under the dispute settlement procedure of an enterprise agreement can modify the requirement for permission to be required for an appeal. Because the Commission is engaged in a process of private arbitration in accordance with a dispute clause, the clause may remove the requirement for permission to be granted by granting a right of appeal.[4]

  1. Clause 16.6 of the Agreement provides that “[a] decision of FWC under this clause may be appealed”. The parties both submit that clause 16.6 confers a right of appeal unconstrained by a requirement to obtain permission to appeal in case of a decision under clause 16. FRV, however, submits that the decision of the Commissioner was not a decision “under this clause”. Whether that is so depends on the answer to the same question as is raised by the appeal itself, namely, whether the dispute cannot be dealt with under clause 16 by operation of clause 86.13 of the Agreement.

  1. As presented by the parties, the submission raises a classic chicken and egg dilemma. If the UFU’s submissions are accepted, it does not require permission to appeal. If its submissions are not accepted, permission is required. The better view is that permission to appeal is not required. Clause 16.3(f) provides for a dispute to be referred to the Commission for arbitration. The referral of a matter for arbitration must include the capacity for the Commission to decide whether the dispute is properly brought under clause 16. A decision as to whether the Commission is able to deal with a matter referred to it is, in our view, a decision under clause 16. Clause 16.6 applies and permission to appeal is not required.

  1. In any event, we would grant permission to appeal if it is required. The UFU has raised an arguable case of appealable error. The grounds of appeal raise novel and important questions about the exercise of the powers of FRV in the context of disciplinary procedures to which provision is made in the Agreement. Furthermore, Ms Pyliotis and Mr Trakas have been suspended from their employment as a result of allegations that were, it appears, known to FRV from at least 2018 or 2019. Although that course of action might have been warranted, it is appropriate that the decision of the Commissioner that a dispute about the matter is not able to be dealt with by the Commission be considered on appeal.

Ground 1: Apprehended bias

  1. The first ground of appeal is that the Commissioner erred in finding that no apprehension of bias arose with respect to the decision of Mr Freeman to suspend Ms Pyliotis and Mr Trakas. The UFU contends that the Commissioner erred in rejecting its submission that a reasonable apprehension of bias arose with respect to Mr Freeman determining to suspend Ms Pyliotis and Mr Trakas on 27 November 2024. The allegation of apprehended bias arises primarily from the fact that Mr Freeman had said, in the letter dated 1 October 2024, that “I have determined that it is appropriate to suspend you from employment with pay, effective immediately, in accordance with clause 86.6 of the EA”. The UFU submits that a reasonable apprehension of bias arises with respect to Mr Freeman’s subsequent decision in relation to the very same issue. The UFU did not contend that Mr Freeman was actually biased or would actually fail to bring an impartial mind to bear on the subsequent suspension decisions. Its submissions were limited to an allegation of apprehended bias.

  1. Clause 86.5(a) of the Agreement requires that “[t]he process for managing Employee misconduct will be consistent with the principles of procedural fairness and natural justice”. We did not understand FRV to dispute that, as a result, a decision to suspend an employee under clause 86.6(a)(v) must be made in a manner that complies with the requirements of procedural fairness. In any event, the exercise of a statutory power to suspend a public sector employee would ordinarily be considered to involve the exercise of a power affecting the rights, interests or legitimate expectations of a person such that the rules of natural justice will prima facie be applicable.

  1. In Dixon v Commonwealth (1981) 55 FLR 34, for example, the Full Court considered the purported suspension of a member of the Commonwealth public service pursuant to s 62 of the Public Service Act 1922 (Cth). The Full Court observed that, where a statute confers power upon a person to make a decision affecting the rights, property or legitimate expectations of a person, the rules of natural justice or the standards of fairness will prima facie be applicable.[5] In relation to the decision to suspend the employee, the Full Court concluded:[6]

The second decision to suspend in the present case was made under the statutory powers conferred by s. 62(1) of the Act. That decision, if valid, deprived the appellant of his entitlement to perform his duties as a permanent officer in the Australian Public Service. It also deprived him of the right to be paid his salary for an indefinite period which was likely to endure for so long as it took the Australian Public Service to make a decision on whether he should be dismissed. In the event, the period was from 19th May, 1978, to 7th September, 1978. Plainly, the decision to suspend the appellant was a statutory decision which adversely affected the rights and legitimate expectations of the appellant. It was likely to have profound emotional, social and financial effects upon him. The rules of natural justice were, in the absence of any clear legislative intent to the contrary, applicable in respect of that decision. The appellant was, in our view, entitled to an opportunity of being heard in relation to the decision of 19th May, 1978, that he be suspended.

  1. That case concerned suspension without pay. Although the suspension of Ms Pyliotis and Mr Trakas is with pay, we do not consider there can be any doubt the decision to suspend them from their employment was one which affected their rights, interests or legitimate expectations.[7] The suspension of Ms Pyliotis and Mr Trakas, particularly where it immediately followed the release of the IBAC report, has the potential to affect their reputations and relationships within the workplace. The decision deprives Ms Pyliotis and Mr Trakas of the capacity to attend the workplace and perform work in their jobs which, in itself, has an intrinsic value separate and distinct from the remuneration received.[8] The fact that the suspensions involve the exercise of a statutory power to which an obligation to accord procedural fairness attaches supports the view that clause 86.5(a) applies with respect to a decision to suspend.

  1. FRV referred to the decision of the Full Court in Avard v Australian Capital Territory [2025] FCAFC 72. In Avard, the Full Court concluded that no procedural fairness obligation arose with respect to a “preliminary assessment” of alleged inappropriate behaviour or misconduct undertaken under an enterprise agreement for the purpose of assessing whether a formal investigation should occur or other action should be taken. The Full Court observed that the preliminary assessment did not, in and of itself, adversely affect Dr Avard’s rights and, in the context of the procedures of the enterprise agreement in question, there was no enshrined obligation of procedural fairness.[9] To the extent that FRV relies on Avard to support a contention that procedural fairness is not required with respect to a decision to suspend under clause 86.5(a)(v) of the Agreement, we do not accept the submission. For the reasons we have given, a decision to suspend an employee is likely to have immediate adverse consequences for the employee.

  1. FRV also relied upon the fact that the Agreement provides for a review of a suspension every four weeks in clause 86.6(b) and (c). FRV suggests that the fact the Agreement provides for a suspension to be reviewed every four weeks after the suspension commences contemplates that the same decision-maker may make an initial decision to suspend an employee and further decisions reviewing the suspension without an apprehension of bias arising. We do not think the provision assists FRV. If an employee is suspended under clause 86.6(a)(v), we accept that a review of the decision would not necessarily need to be undertaken by a different decision-maker. Clause 86.6(b) and (c) implicitly contemplate that making an initial decision in relation to a suspension does not necessarily disqualify a decision-maker from reviewing the suspension. However, in our opinion, the existence of the review mechanism in clause 86.6(b) and (c) does not deprive an employee of the right to an initial decision in relation to suspension which complies with the requirements of procedural fairness, including that the decision be made by a decision-maker free from a reasonable apprehension of bias. The content of the requirement to afford procedural fairness in any case will depend upon the circumstances, including the urgency of the allegations said to warrant suspension.

  1. An aspect of the obligation to accord procedural fairness is that the decision-maker is free from an apprehension of bias.[10] The test for apprehended bias was stated in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337:[11]

… a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.

  1. The application of the apprehension of bias principle requires two steps: the identification of the factor which it is said might lead the decision-maker to decide a case other than on its legal and factual merits and an articulation of the logical connection between the matter and the apprehended deviation from the course of deciding the case on its merits.[12]

  1. The UFU submits that, as to the first step required by Ebner, the factor upon which the apprehension is based is as in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283, namely, that Mr Freeman had, on a previous occasion “expressed ‘clear views’ about a question of fact constituting a live and significant issue”.[13] As to the second step, the UFU submits that “[i]t is a recognition of human nature” that a person who has found a state of affairs to exist may not be inclined to depart from that view: “a reasonable observer might possibly apprehend that at the [stage of the subsequent decision] [he] might not move [his] mind from the [earlier] position reached”.[14]

  1. The UFU submits that the reasoning of the Commissioner is not consistent with authority. The UFU notes that the Commissioner concluded that the withdrawal of the first suspension removed or denied any apprehension of bias and “should in itself be sufficient to satisfy the fair-minded lay observer” that a different outcome was available and amounted to Mr Freeman having “demonstrated a capacity to move away from his chosen path once, and there is no reason he could not be persuaded to do so again”.[15] The UFU submits that this reasoning is inconsistent with Laurie and fails to acknowledge that a reasonable lay observer might apprehend that a person who has reached a clear view about a matter “may not be inclined to depart from that view” on a later occasion.

  1. The UFU submits that the withdrawal of a decision cannot remove an apprehension and refers to SZBLY v Minister for Immigration and Citizenship [2007] FCA 765 and Cleworth v Barrow (1978) 20 ALR 359. In SZBLY, a member of the Refugee Review Tribunal reached adverse views about a visa applicant’s claim to have a well-founded fear of harm and wrote to him seeking information. Because of an administrative error, the letter never reached the applicant, but the Tribunal assumed it had and made findings adverse to the applicant. The applicant’s lawyers drew to attention that he had not received the letter, and the Tribunal purported to “recall” its decision and invited comment on the matters the subject of the misdirected letter. Cowdroy J concluded that a reasonable apprehension of bias arose notwithstanding the withdrawal of the first decision and said:[16]

In view of the adverse findings made by the Tribunal member relating to the credit of the appellant, the withdrawal of the first decision gives no confidence that an impartial mind could be brought to hear the further enquiry. Apprehension of bias has been found to exist in proceedings where an adjudicator has made previous findings as to a witness’s credit on the same set of facts …

…

Because of the adverse findings by the Tribunal member of the appellant’s credit and the falsity of his documents in the first decision, the Court is satisfied that a fair minded and informed person might reasonably apprehend that the Tribunal member would not bring an impartial mind to bear in making to second decision.

  1. In Cleworth v Barrow, a member of a union Committee of Management sent notice of a motion that Mr Cleworth be suspended to the other members. Three members replied that Mr Cleworth should be suspended, having wrongly thought that they had been asked to express views on that question. At the next meeting of the committee, Mr Cleworth had an opportunity of making, and did make, representations as to whether he should be suspended, after which a vote was held suspending him. Despite this opportunity, the three members having earlier indicated support for suspension “show[ed] a judgment and considered opinion reached by the three members on the very matters they were required to inquire into and reach a decision about”. The court found that Mr Cleworth was denied procedural fairness.[17]

  1. FRV submits that the Commissioner was correct to conclude that the fair-minded lay observer would apprehend no bias at the stage of Mr Freeman making a decision in relation to the suspensions either as of 24 October 2024 or in the decision on 27 November 2024. FRV submits that the mere fact that Mr Freeman expressed the view that Ms Pyliotis and Mr Trakas should be suspended in the letter of 1 October 2024 did not give rise to a reasonable apprehension he would not bring an impartial mind to a subsequent decision on that matter. FRV refers to the following passage from Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507:[18]

Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.

  1. FRV submits that the exception recognised in Livesey v NSW Bar Association (1983) 151 CLR 288 does not assist the UFU in this case because it is limited to a circumstance in which a decision-maker has expressed “clear views” either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance to such a question of fact.[19] FRV submits that Mr Freeman made no findings of facts in relation to the allegations of misconduct concerning Ms Pyliotis and Mr Trakas or any other matter of fact, nor has he made any findings of credit. FRV submits that Livesey, Laurie, SZBLY and Cleworth v Barrow are all distinguishable because each concerned circumstances in which the relevant decision-maker had made findings of fact and/or credit findings at an earlier time.

  1. Further, FRV submits that an administrative decision-maker may cure a breach of the rules of procedural fairness by subsequently providing an opportunity to be heard. Reference is made to the following observations of Dawson J in Re JRL; Ex parte CJL (1986) 161 CLR 342 where his Honour referred to the need to consider the “whole of the circumstances” and said:[20]

… the whole of the circumstances are not confined to the conduct said to afford reasonable grounds for suspecting a lack of impartiality. They include what was done by the judge subsequently, which may be sufficient to eradicate any reasonable apprehension of bias notwith­standing an earlier lapse in the observance of proper procedures. It is clear that an initial failure to hear a party or to allow him to put his case may be cured by giving him an appropriate opportunity to be heard at a later stage: see Ridge v. Baldwin. It seems to me to follow that it must also be possible to remove an apprehension of bias on the part of a judge which might otherwise arise out of the failure to hear a party.

  1. FRV submits that the Commissioner was correct to find that the fact Mr Freeman was willing to withdraw the initial suspensions should be sufficient to satisfy a fair-minded observer that he would approach a subsequent decision in relation to suspension impartially and amenable to persuasion.

  1. In this matter, the factor which it is said might lead Mr Freeman to decide the question of the suspension of Ms Pyliotis and Mr Trakas other than according to its merits is that he had previously expressed a concluded view about whether they should be suspended. In Woodside Energy Ltd v Australian Workers’ Union [2022] FWCFB 192, the Full Bench discussed the circumstance of alleged prejudgment and said:[21]

Some additional propositions are relevant to this appeal. First, disqualification on the ground of apprehended bias must be “firmly established”, and a finding of apprehended bias is not to be reached lightly. Second, an apprehension that an issue may be decided adversely to a party does not constitute an apprehension that the issue might be determined other than impartially. Third, where apprehended bias is asserted on the basis of a previous expression of opinion on an issue by the decision-maker, consideration of whether the “logical connection” required by the second step identified in Ebner exists will require an analysis of the role and importance of that issue in the matter to be determined. Finally, where an apprehension of bias is said to arise by reason of prejudgment, the following principles stated by the Federal Court Full Court in Cabcharge Australia Ltd v Australian Competition and Consumer Commission apply:

“The test for apprehended bias is the same wherever it arises, although the context in which it falls to be applied will clearly affect how the test is applied. One particular occasion of apprehended bias is where it is said, as Cabcharge had alleged here, that the judge has relevantly prejudged matters in controversy. In this context, disqualifying bias results in a state of mind that is not open to persuasion. That is, in this species of apprehended bias, “[t]he state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: see Minister for Immigration andMulticultural Affairs v Jia Legeng (2001) 205 CLR 507 … at 531-2 [71]-[72] per Gleeson CJ and Gummow J. That is, in such a case as the present, it must be firmly established that a reasonable observer might conclude that the decision-maker might not bring to his or her task an impartial mind by reason of prejudgment, in the sense that the decision-maker might be so committed to a conclusion as to be incapable of persuasion to a different view: see Re JRL; Ex parte CJL (1986) 161 CLR 342 … at 352 per Mason J.”

  1. The Full Bench appropriately cautioned that a disqualifying apprehension of bias must be firmly established and can only arise if a reasonable observer might conclude that the decision-maker might not bring an impartial mind to the task by reason of prejudgment, in the sense that the decision-maker might be so committed to a conclusion as to be incapable of persuasion to a different view. However, a reasonable apprehension of bias does not require that there is reason to believe the decision-maker will definitely decide a matter other than impartially and according to its merits. It is sufficient that a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide.

  1. We do not consider that whether a reasonable apprehension of bias arises by reason of a decision-maker having expressed a clear view about a matter relevant to a decision in the present context is limited to matters involving a finding of fact or question of credit. Obviously enough, the nature of the matter about which the decision-maker has expressed prior views will be relevant to whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of a question that is subsequently required to be decided. Prejudgment is more likely to be found where the views previously expressed by a decision-maker concerned the integrity or credibility of a person or witness. However, a reasonable apprehension of bias might arise by reason of a decision-maker having, in the past, expressed a view about the decision that should be made. Whether that is so will depend on an assessment of the whole of the circumstances.

  1. To the extent that the UFU submits that the withdrawal of a decision cannot remove an apprehension of bias, we think the submission is too broadly stated. If a decision-maker withdraws a decision and expresses a willingness to hear from the person affected and reconsider the decision, that circumstance must be considered in assessing whether a reasonable apprehension of bias arises. The reasons of Dawson J in Re JRL; Ex parte CJL suggest that it is possible for the withdrawal of a decision to remove an apprehension of bias. On the other hand, the decisions in SZBLY and Cleworth v Barrow suggest that an indication that the decision-maker is willing to reconsider a matter may not necessarily be sufficient to establish that a fair-minded observer might not reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question. The answer will, again, turn on a consideration of the whole of the circumstances.

  1. There are a number of aspects of the circumstances of this matter which are, in our opinion, of particular significance. First, in the letters dated 1 October 2024, Mr Freeman expressed an unequivocal conclusion that he had “determined that it is appropriate to suspend you from employment with pay, effective immediately, in accordance with clause 86.6 of the EA”. Mr Freeman made that determination without prior notice to Ms Pyliotis and Mr Trakas and without hearing from them. Mr Freeman evidently considered it open to him and appropriate to decide to suspend Ms Pyliotis and Mr Trakas without providing any measure of procedural fairness. We accept that, the letters dated 1 October 2024 and 10 October 2024 indicate that FRV, and Mr Freeman, had made no determinations in relation to the allegations concerning Ms Pyliotis and Mr Trakas or regarding their employment. However, the letters dated 1 October 2024 articulated a clear view that the nature of the allegations were such that it was appropriate that Ms Pyliotis and Mr Trakas be suspended. That provides a foundation for the submission that a reasonable observer might apprehend that Mr Freeman might not move his mind from the position he stated in the letter of 1 October 2024.

  1. Second, it is necessary to consider the letters dated 24 October 2024 which informed Ms Pyliotis and Mr Trakas that Mr Freeman had determined to withdraw the suspensions and to provide an opportunity to respond to what Mr Freeman then described as his “provisional view” that an appropriate and proportionate interim response to the alleged misconduct is to suspend them from employment. As we have observed, the withdrawal of the suspensions is part of the circumstances that must be considered in determining if a reasonable apprehension of bias arises with respect to the subsequent decision of Mr Freeman to suspend Ms Pyliotis and Mr Trakas. The question is whether the communication of the withdrawal of the suspensions would, as found by the Commissioner, satisfy the fair-minded observer that Mr Freeman would bring an impartial mind to the consideration of making a further decision to suspend Ms Pyliotis and Mr Trakas and of any representations made on behalf of Ms Pyliotis and Mr Trakas.

  1. The context of the letters of 24 October 2024 is, in our opinion, important. The letters of 24 October 2024 were expressed to be a response to the letters of grievance lodged on behalf of Ms Pyliotis and Mr Trakas by the UFU on 15 October 2024. The grievances lodged by the UFU complained that there had been a denial of procedural fairness and that an apprehension of bias arose in relation to the decision of Mr Freeman. The grievances also raised matters going to the merits of the decision to suspend Ms Pyliotis and Mr Trakas, including that the suspension was not warranted in circumstances in which FRV had known of the allegations since 2018 and permitted them to continue to perform work since, that Ms Pyliotis and Mr Trakas’ unblemished work history had not been considered and that suspension was not warranted, or lawful, in circumstances in which the IBAC report specifically acknowledged that the actions of Ms Pyliotis and Mr Trakas that had given rise to the suspension were engaged in for the purpose of furthering the interests of the UFU and its members.

  1. The difficulty with accepting that the withdrawal of the suspensions removed the potential for an apprehension of bias to arise is that the letters dated 24 October 2024 contain an emphatic and full-throated defence of the conduct of FRV to date. The letters state in unequivocal terms that Mr Freeman “completely reject[s] any and all allegations as outlined in your letters and advise FRV’s view that the dispute is without foundation”. In circumstances in which the grievances included representations concerning the merits of the suspension decisions, the letters do not suggest Mr Freeman had an open mind on the question. The decision to withdraw the suspension was described as being made “[d]espite FRV’s views regarding the merits of the UFU’s correspondence … [and] … strictly for the purpose of resolving those extant disputes under clause 16 of the Enterprise Agreement and as a gesture of good faith to assure your members that FRV has not pre-determined the allegations of misconduct against them”. Again, we do not consider that a fair minded observer would be satisfied that Mr Freeman acknowledged that Ms Pyliotis and Mr Trakas should be heard prior to a decision being made to suspend them from their employment or that he remained open to reconsidering whether suspension was an appropriate course.

  1. Third, the second set of letters dated 24 October 2024 contained what was described as a “lawful and reasonable direction”. The terms of the directions were that Ms Pyliotis and Mr Trakas were to “remain absent from duty” and not to perform any work for FRV, not to access FRV’s electronic systems, must remain away from FRV’s premises and must not have any contact with FRV employees. The directions were in practice indistinguishable from the description of the effect of suspension provided in the letters dated 1 October 2024. That is, although Mr Freeman withdrew the suspensions of Ms Pyliotis and Mr Trakas, at the very same time he imposed a direction having precisely the same effect as suspension which were to apply until he had made a further decision in relation to what was now described as a “proposed suspension”. The directions are likely to indicate to a fair-minded observer that Mr Freeman continued to hold the view that Ms Pyliotis and Mr Trakas should be suspended and required to remain away from the workplace and not perform any work in their jobs.

  1. The letters of 24 October 2024 describe the directions as being “for the purpose of preparing your response (if any) to the proposed suspension”. With respect, it is difficult to understand how the directions could rationally be said to have that purpose. It may be accepted that a direction that Ms Pyliotis and Mr Trakas be relieved of their ordinary duties to provide time for them to prepare responses to the proposed suspension might be an appropriate, or at least objectively rational, course. However, we do not accept that the other terms of the directions can be said to rationally facilitate Ms Pyliotis and Mr Trakas preparing a response to the proposed suspensions. The fact that Ms Pyliotis and Mr Trakas were directed not to access FRV’s electronic systems, must remain away from FRV’s premises and must not have any contact with FRV employees are likely to indicate to a fair-minded lay observer that Mr Freeman had a firm view that they should be suspended, and the consequences of suspension should remain in place notwithstanding the nominal decision to withdraw the suspensions and that he continued to hold that view notwithstanding the representations that had been made by the UFU.

  1. We are conscious that a disqualifying apprehension of bias must be firmly established. However, in light of all of the circumstances revealed by the documents in evidence and to which we have referred, we think that a fair-minded lay observer might conclude that Mr Freeman might not have brought an impartial mind to the question of whether Ms Pyliotis and Mr Trakas should be suspended when making the decision recorded in the letters dated 27 November 2024. With respect, the Commissioner erred in deciding to the contrary. The consequence is that ground 1 should be upheld and there has been a failure to comply with the procedure set out in clause 86 for the purposes of clause 86.13. So far as the dispute concerned the suspension decisions, the dispute can be dealt with by the Commission under clause 16.

  1. We have not overlooked the fact that Ms Pyliotis and Mr Trakas did not avail themselves of the opportunity to respond to Mr Freeman’s subsequent opportunity to contest the suspensions. However, the UFU had already raised the dispute about the adequacy of the process adopted by FRV prior to the time afforded for responding to the proposed suspensions, including complaining that Mr Freeman was not an unbiased decision-maker. In any event, this aspect of the chronology may be relevant to the substance of the dispute and its resolution, but is not in itself an answer to the need to comply with the procedure within the enterprise agreement for the purposes of the jurisdictional objection.

Grounds 2 and 3: Irrationality and illogicality

  1. Grounds 2 and 3 concern the submission that the decision to commence an investigation into the allegations concerning Ms Pyliotis and Mr Trakas recorded in the letters dated 10 October 2024 and the decision to suspend Ms Pyliotis and Mr Trakas recorded in the letters dated 27 November 2024 were unreasonable or irrational. It is unnecessary to address ground 2. Ground 2 alleges that the Commissioner failed to address the submission made at first instance that the decisions to commence an investigation and to suspend Ms Pyliotis and Mr Trakas were unreasonable or irrational. As counsel for the UFU accepted, even if the Commissioner did fail to address the submission, ground 2 would not result in the appeal being successful unless the Full Bench finds that the submission that the decisions were unreasonable and/or irrational has merit. In the circumstances, it is necessary to address only ground 3.

  1. Ground 3 alleges that, in any event, the Commissioner erred in failing to accept that the decision to commence an investigation and to suspend Ms Pyliotis and Mr Trakas was unreasonable and/or irrational. The foundation of the ground is an assertion that a decision to commence an investigation or suspend Ms Pyliotis and Mr Trakas which is unreasonable and/or irrational is not authorised by clause 86 of the Agreement and, for that reason, there has been a failure to comply with the procedure set out in the clause for the purpose of clause 86. The UFU referred, in this respect, to two decisions of Deputy President Saunders. In Australian Rail, Tram and Bus Industry Union v Aurizon Operations Limited[2021] FWC 4809, Deputy President Saunders made the following observations in relation to the exercise of a discretionary power conferred by an enterprise agreement:

[49] Guidance as to the construction of industrial instruments such as the Agreement may be obtained by reference to principles which courts apply to the construction of commercial contracts. A number of intermediate appellate courts have considered in recent years how discretions conferred on an employer under a contract of employment or workplace policy should be construed, including in circumstances where an employer has an apparently unlimited discretionary power to make a bonus payment to an employee. It is apparent from those decisions that such a discretion must not be exercised capriciously, arbitrarily or unreasonably, and the discretion must be exercised honestly and conformably with the purposes of the contract. The requirement not to exercise the discretion unreasonably is to be construed in the sense of Wednesbury unreasonableness so that the exercise of the discretion will not be unreasonable unless no reasonable employer could ever exercise the discretion in that way.

  1. Commissioner Saunders (as the Deputy President then was) made similar observations in McKenzie v Liddle Colleries Pty Limited[2017] FWC 590 when dealing with a dispute arising from the imposition of a warning and period of suspension without pay as a disciplinary measure.[22] The UFU also referred to decisions in which discretionary powers conferred by contract, statute and other instruments are commonly construed as being subject to an implied limitation that the post must be exercised reasonably and rationally.[23]

  1. We are inclined to accept that the discretionary powers conferred by clause 86 of the Agreement should not be construed so as to permit a discretion to be exercised unreasonably or irrationally. That view is supported by the articulated purpose of clause 86 which included, in clause 86.1(c), to “reflect the public sector values of integrity, impartiality, accountability and respect with the aim of ensuring that Employees are treated fairly and reasonably”. It is less clear that an allegation that a decision to commence an investigation, or to suspend an employee, which is unreasonable or irrational would entail a failure to comply with the procedure set out in clause 86 for the purposes of clause 86.13. However, it is unnecessary to express a concluded view about these matters because we are not satisfied that the UFU have demonstrated that either decision was unreasonable or irrational.

  1. The test of unreasonableness, or irrationality or illogicality, “does not involve substituting a court’s view as to how a discretion should be exercised for that of the decision-maker”.[24] In Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, Hayne, Kiefel and Bell JJ explained:[25]

As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

  1. The test for unreasonableness or irrationality requires meeting a high threshold and a stringent test.[26] Illogical or irrational reasoning, or the absence of an intelligible foundation for a conclusion, must involve more than emphatic disagreement with the result by a reviewing court.[27] As was said in Li, the question is whether the exercise of discretion “lacks an evident and intelligible justification”.

  1. The submission of the UFU that the decisions were unreasonable or irrational was summarised by the Commissioner in a manner that the UFU accepts was accurate in the following passage from the decision:

[36] With respect to its submission that the suspension of the two employees and subsequent investigation was unreasonable, the UFU submits that the framers of the Agreement can be taken to have intended that processes created by the agreement should be used rationally and reasonably. It argues that it was unreasonable and/or irrational to permit the two employees to work in their positions for six years, with their employer knowing during that time of the conduct now claimed to be of concern. It is further unreasonable and/or irrational to now suspend the two from employment because of some risk now that the two would pose if they continue to work. It is now irrational and/or unreasonable to commence an investigation when none was commenced six years ago. It is not possible to now decide that an investigation is required, when none was made over the previous six years.

  1. The substance of the submission is that, in circumstances in which FRV had been aware of allegations concerning Ms Pyliotis and Mr Trakas in 2018 or 2019 and took no action to investigate or suspend the employees whilst the matter was being investigated by IBAC, it is unreasonable or irrational to now do so six years later.

  1. We do not accept the submission. The focus of the analysis must be on the decision communicated on 10 October 2024 to commence an investigation and the decision to suspend Ms Pyliotis and Mr Trakas communicated on 27 November 2024. The submission of the UFU overlooks that the IBAC report was published on 25 September 2024. Whether FRV could, or should, have investigated the allegations earlier is a matter about which reasonable minds might differ. However, the question is not whether the allegations should have been investigated earlier. The question is whether it was unreasonable or irrational for FRV to decide to  investigate the allegations or suspend Ms Pyliotis and Mr Trakas in October or November 2024 having regard to the publication of the IBAC report.

  1. Different decision-makers might have made a different decision in the circumstances. A different decision-maker might have decided that the suspension of Ms Pyliotis and Mr Trakas was not warranted given that both employees have continued with their employment without apparent further incident for a number of years after the events giving rise to the allegations. However, we do not think it can be said to be unreasonable or irrational, in the relevant sense, to decide to investigate the allegations and suspend Ms Pyliotis and Mr Trakas following the release of the IBAC report. Although FRV had been aware of allegations concerning Ms Pyliotis and Mr Trakas since 2018, the release of the IBAC report disclosed that an independent investigative body had made findings in relation to their conduct. We are not satisfied that a decision to act on those findings by now commencing an investigation of the allegations or that the findings in the IBAC report make it appropriate to suspend Ms Pyliotis and Mr Trakas lacks an evident and intelligible justification or meets the high threshold of legal unreasonableness. Ground 3 should be rejected.

Conclusion and disposition

  1. For these reasons, permission to appeal is not required. Ground 1 in the notice of appeal should be upheld, it is unnecessary to deal with ground 2 and ground 3 should be rejected. The Commissioner was asked to, and did, determine a preliminary question as to the jurisdiction of the Commission to deal with a dispute about the decisions to commence an investigation and suspend Ms Pyliotis and Mr Trakas under clause 16 of the Agreement. The consequences of the conclusions we have reached on appeal is that the Commission has jurisdiction to deal with a dispute as to the decision communicated on 27 November 2024 to suspend Ms Pyliotis and Mr Trakas, but not the decision to commence an investigation.

  1. Having regard to the conclusions we have reached in relation to the appeal, it is unclear whether there are further matters requiring determination in the dispute. That may depend on whether, properly understood, clause 86.13 permits the Commission to deal with a dispute only as to whether there has been a failure to comply with the procedure under the clause or whether, in the event of a procedural defect, the Commission can deal with the substance of the dispute concerning the merits of the suspensions. Given that the parties have not addressed that issue, and that compliance with the procedure in clause 86 was dealt with by the Commissioner as a preliminary jurisdictional issue, it is not appropriate for the Full Bench to express a view on that question. The appropriate course is to remit the dispute to a member of the Full Bench to be dealt with in accordance with clause 16 to the extent that is necessary.

  1. The Full Bench make the following orders:

(a)The appeal is allowed as to ground 1;

(b)The decision of Commissioner Wilson in [2025] FWC 892 made on 31 March 2025 in Matter No. C2024/7809 (as corrected on 10 April 2025) is quashed to the extent the Commissioner determined the Commission did not have jurisdiction to deal with a dispute concerning the decision communicated on 27 November 2024 to suspend Ms Pyliotis and Mr Trakas under clause 16 of the Fire Rescue Victoria (Former MFB) Corporate & Technical employees Agreement 2017;

(c)The dispute is remitted to Deputy President Farouque.

VICE PRESIDENT

Appearances:

J Hartley, of counsel, instructed by G Borenstein of Slater & Gordon for the appellant.
B Avallone, of counsel, instructed by A Mollison of Landers & Rogers for the respondent.

Hearing details:

14 July 2025.
Melbourne.


[1] United Firefighters’ Union of Australia v Fire Rescue Victoria[2025] FWC 892 at [90]-[92].

[2] Agreement, clause 6.1(b).

[3] Agreement, clause 16.3(f).

[4] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Silcar Pty Ltd[2011] FWAFB 2555; (2011) 208 IR 33 at [17]; DP World Brisbane Pty Ltd v Maritime Union of Australia[2013] FWCFB 8557; (2013) 237 IR 180 at [43]; PHI (International) Australia Pty Ltd T/A HNZ Australia Pty Ltd v Nash[2024] FWCFB 396 at [16]-[19].

[5] Dixon v Commonwealth (1981) 55 FLR 34 at 40 (Bowen CJ, Deane and Kelly JJ).

[6] Dixon v Commonwealth (1981) 55 FLR 34 at 44 (Bowen CJ, Deane and Kelly JJ). See also Gaisford v Fisher [1996] FCA 1908, upheld on appeal in Fisher v Gaisford (1997) 48 ALD 200 at 202 (O’Loughlin, Drummond and Goldberg JJ).

[7] See, for example, Quinn v Overland [2010] FCA 799; (2010) 199 IR 40 at [91]-[92] (Bromberg J).

[8] Blackadder v Ramsay Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 at [32] (Kirby J) and [80] (Callinan and Heydon JJ); Transport Workers Union of Australia v Qantas Airways Ltd (No 4) [2021] FCA 1602; (2010) 312 IR 133 at [139] (Lee J); Elisha v Vision Australia Limited [2024] HCA 50; (2024) 99 ALRJ 171 at [67] (Gageler CJ, Gordon, Edelman, Gleeson and Beech-Jones JJ).

[9] Avard v Australian Capital Territory [2025] FCAFC 72 at [51]-[57] (Charlesworth, Stellios and Longbottom JJ).

[10] Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at [25] (Gleeson CJ); CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 at [54] (Nettle and Gordon JJ); Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 41; (2022) 288 FCR 218 at 226 [34] (Bromberg, Murphy and Markovic JJ).

[11] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[12] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[13] British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 at [126] (Heydon, Kiefel and Bell JJ) referring to Livesey v NSW Bar Association (1983) 151 CLR 288 at 300 (Mason, Murphy, Brennan, Deane and Dawson JJ).

[14] By reference to British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 at [139] (Heydon, Kiefel and Bell JJ).

[15] United Firefighters’ Union of Australia v Fire Rescue Victoria[2025] FWC 892 at [67]-[68].

[16] SZBLY v Minister for Immigration and Citizenship [2007] FCA 765 at [27] and [32] (Cowdroy J).

[17] Cleworth v Barrow (1978) 20 ALR 359 at 370 (Sweeney, Evatt and Keeley JJ).

[18] Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [71] (Gleeson CJ and Gummow J).

[19] Livesey v NSW Bar Association (1983) 151 CLR 288 at 300 (Mason, Murphy, Brennan, Deane and Dawson JJ). See also Australian Securities and Investments Commission v SunshineLoans Pty Ltd [2025] FCAFC 32 at [88] (Bromwich J).

[20] Re JRL; Ex parte CJL (1986) 161 CLR 342 at 372 (Dawson J).

[21] Woodside Energy Ltd v Australian Workers’ Union [2022] FWCFB 192 at [39].

[22] McKenzie v Liddle Colleries Pty Limited[2017] FWC 590 at [11]-[12].

[23] By reference to Electrolux Home Products Pty Ltd v Australian Workers' Union [2001] FCA 1600 at [29] (Merkel J), Silverbrook Research Pty Ltd v Lindley [2010] NSWCA 357 at [5]-[6] (Allsop P) and Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; (2019) 271 FCR 595 at [106] (Mortimer J).

[24] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [66] (Hayne, Kiefel and Bell JJ).

[25] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76] (Hayne, Kiefel and Bell JJ).

[26] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [11] (Kiefel CJ); Qube Logistics (Rail) Pty Ltd v Australian Rail, Tram and Bus Industry Union [2025] FCAFC 73 at [180] (Katzmann, Wheelahan and Raper JJ).

[27] Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [40] (Gleeson CJ and McHugh J).

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Cases Citing This Decision

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Cases Cited

15

Statutory Material Cited

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MZYVM v Minister for Immigration and Citizenship [2013] FCA 79
MZYVM v Minister for Immigration and Citizenship [2013] FCA 79
Avard v Australian Capital Territory [2025] FCAFC 72