Fair Work Act 2009

s.739 - Application to deal with a dispute

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]. Jurisdictional objection - whether alleged dispute is a dispute that may be dealt with by the Commission. Objection upheld.

• [1] Vicky Pyliotis and Stephan Trakas are two of three Fire Rescue Victoria (FRV) employees who are the subject of adverse findings in a report published by IBAC, the Victorian Independent Broad-based Anti-corruption Commission, concerning their conduct in mid 2018. An application alleging a dispute arising under an enterprise agreement was commenced on their behalf by the United Firefighters' Union of Australia (UFU) on 4 November 2024. The application is made pursuant to s.739 of the Fair Work Act 2009 (FW Act), with the dispute allegedly arising under the Fire Rescue Victoria (Former MFB) Corporate & Technical Employees Agreement 2017 (the Agreement).

• [2] The UFU argues, on behalf Ms Pyliotis and Mr Trakas, that the Commission has jurisdiction to deal with the dispute as it is characterised, being a dispute arising under clause 16 (Dispute Resolution) of the Agreement. FRV argues that the Commission lacks jurisdiction to deal with the UFU's application.

• [3] For the reasons set out below, I find that the dispute as characterised by the UFU is not one that may be raised and dealt with under clause 16 of the Agreement.

• [4] The IBAC enquiry touching on the alleged conduct of Mr Trakas and Ms Pyliotis and others was code-named "Operation Turton".

• [5] Unusually, IBAC released a public report on its enquiry which made damning findings. The report is entitled "Special report on Operation Turton" and was transmitted on 25 September 2025 to the President of the Victorian Legislative Council and the Speaker of the Legislative Assembly in accordance with the Independent Broad-based Anti-corruption Commission Act 2011 (Vic).

• [6] The Special Report notes that IBAC's enquiry started after June 2018, when the former Metropolitan Fire Board (MFB - one of two entities moved into the FRV) "notified the Independent Broadbased Anti-corruption Commission (IBAC) of allegations that an MFB Network Administrator, Stephan Trakas, had accessed the email accounts of MFB executives without authority."[1] IBAC commenced enquiries and "concluded Operation Turton in June 2021".[2]

"The incidents of unauthorised information disclosure and the broader industrial environment suggest a culture where MFB could not operate effectively and independently of the union.

Operation Turton highlights how a problematic culture within MFB, information security vulnerabilities and an industrial environment that impaired MFB's ability to address these issues contributed to an environment where information misuse appeared commonplace".[3]

"Operation Turton found deficiencies in MFB's culture and vulnerabilities in its information and communication technology (ICT) systems, contributing to significant corruption risks. A culture of mistrust between management and employees, and barriers for management to address issues, were repeatedly reported to IBAC throughout the investigation.

More specifically, IBAC substantiated the allegation that Mr Trakas accessed and facilitated other MFB employees access to MFB email accounts - including those of the Executive- without the necessary authorisation in April and May 2018. IBAC found:

• In August 2018, Mr Trakas allowed another employee, Vasiliki Pyliotis, to send an email from Mr Trakas's account to avoid the email being linked to Ms Pyliotis or her account.

• • In May 2019, Peter Marshall[4] disclosed an MFB document to the Emergency Services Minister without authority, Mr Marshall had received this document as a result of an unknown MFB employee disclosing it without authority

• In April 2019, Mr Marshall requested that multiple MFB employees (including Ms Pyliotis) access in formation without authorisation relating to an investigation into Mr Marshall

• Ms Pyliotis did so by accessing the MFB ICS system and reported back to Mr Marshall she had been unable to find anything.

• In May 2019, a member of the MFB Executive, Kirstie Schroder, disclosed information to Mr Marshall without authorisation that MFB executive contracts were being renewed and asked him to ask the Emergency Services Minister to intervene in this process.

In April 2020, IBAC disclosed information to MFB, under section 41 of the IBAC Act, to alert it to ongoing ICT system vulnerabilities identified during the investigation"[5]

• [9] The UFU submissions set forward a useful chronology of the wider dispute (with me omitting cross-references to particular pages in the digital hearing book);

"11. The conduct the subject of the proposed investigation is said to have occurred more than six years ago, in April 2018 and May 2019.

12. In June 2018, the Metropolitan Fire Brigade notified to the Independent Broad-based Anti-corruption Commission ("IBAC") an allegation that Mr Trakas had accessed email accounts of MFB executives without authority.

13. In January 2019, IBAC decided to conduct an investigation.

14. In June 2021 - two and a half years later - IBAC "concluded" Operation Turton, being the name it had given to the allegations. It did not, however, at that time publish a report. It did not, in fact, publish a report during the term of the Commissioner who had taken the evidence of the witnesses and promulgated a draft report for comment, Commissioner Redlich.

15. On 25 September 2024 - three and a bit years after the Operation "concluded" - the IBAC, constituted by its new and present commissioner, Victoria Elliott, published a report ("IBAC report").

16. On 01 October 2024, Mr Trakas and Ms Pyliotis were notified that Commissioner Freeman of FRV:

(1) had "determined that it [was] appropriate to suspend [them] from employment with pay, effective immediately";

(2) had "determined that it was appropriate to commence an investigation into the alleged misconduct".

17. These determinations were made without any notice to Mr Trakas or Ms Pyliotis, and without any opportunity given to them to make submissions.

18. On 15 October 2024, the Union notified disputes on behalf of Mr Trakas and Ms Pyliotis. Amongst the grounds of dispute were that they had had no opportunity to make submissions.

19. On 24 October 2024, FRV responded by denying that there was anything wrong with the determinations to suspend, but withdrawing those determinations.

20. On the same day - 24 October 2024 - FRV sent further letters to Mr Trakas and Ms Pyliotis in which the same officer who had already purported to suspend them - Commissioner Freeman - said that he had formed a "preliminary view ... that an appropriate and proportionate interim response to the alleged misconduct is to suspend you from employment with pay, effective immediately". He further gave the following directions to each of Mr Trakas and Ms Pyliotis:

• you are not to access FRV's electronic systems (including email

• 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."

21. There followed correspondence it is not necessary to go into in which the Union notified a dispute in relation to the 24 October 2024 letters, FRV denied that there was a "dispute" but agreed to meet, but ultimately the parties were unable to come to an understanding as to how such a meeting was to be characterised and it did not occur.

22. On 04 November 2024, this application was commenced.

24. On 27 November 2024, Commissioner Freeman sent letters to each of Mr Trakas and Ms Pyliotis notifying them that he had "decided that it [was] an appropriate and proportionate interim response, in all the circumstances, to suspend [them] from employment with pay"."[6]

• [10] In its materials, the UFU is critical of the length of time taken by FRV to commence an investigation and notes the negative effects this potentially has had on the capacity of the employees to respond to such allegations as are put to them. FRV addresses this by submitting;

"... the Commission may wonder why there was a such a long period between the commencement of the IBAC investigation in 2019, to its conclusion in June 2021, to the publishing of the Operation Turton Special Report. The answer may be in part [at page 45 of the of the IBAC report], which includes extensive consideration of responses to a draft report from, amongst others, the UFU.5 Whatever the cause(s) of the delays were, the Commission cannot find that they were FRV's fault."[7]

• [11] The footnote number (5) appearing in the above passage, is a footnote in the FRV Submissions in Reply, which states (with no amendment by me);

"See also the reference in part B.4.262 of the Operation Turton Special Report, to "the High Court of Australia's decision in AB v IBAC [2024] HCA 10". It is apparent from the High Court judgment at [4]-[8], and the first instance judgment (AB & CD v Independent Broad-based Anti-corruption Commission [2022] VSC 570 at [5]- [13]) and the Court of Appeal judgment (AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2022] VSCA 283 at [2]- [13]) which were the subject of the High Court judgment, that the IBAC investigation considered in the High Court judgment concerned an IBAC investigation which commenced in 2019 and was concluded in 2021, in relation to which IBAC provided a draft report for any response from certain persons on 6 December 2021, and in relation to which proceedings were brought against IBAC (which proceedings were concluded by the High Court judgment) on 6 December 2021. The High Court judgment was published on 13 March 2024. Reference is made to the redacted versions - as published on Austlii - of those judgments."[8]

• [12] The Agreement provides for certain types of disputes to be raised and dealt with according to clause 16 (Dispute Resolution), the full terms of which are set out in Appendix 1 to this decision. Clause 16.1 provides that the procedures of the broader clause;

"... 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."

• [13] The remainder of clause 16 deals with matters of process including the capacity for an unresolved dispute to be referred to the Fair Work Commission, which "may utilise all its powers in conciliation and if not resolved arbitration to settle the dispute as set out in the Fair Work Act 2009 (as amended)". Part 7 of the Agreement, entitled Managing Work Performance, Counselling, Discipline, Termination and Retirement is a suite of clauses dealing with a number of performance and end-of-employment topics.

• [14] Within Part 7 is clause 86, which is entitled "Management of Misconduct". The clause is lengthy and reproduced in full in Appendix 1. Clause 86.13 in particular is directly relevant to this dispute, with the clause acting as a barrier to progression of certain types of dispute under the general dispute resolution procedure within clause 16. Clause 86.13 is in these terms;

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):

• [15] In short, clause 86.13 provides that a dispute may only be raised under and dealt with under clause 16 in relation to misconduct matters, in either of two circumstances;

• when there "has been a failure to comply with the provisions of this clause"; or

• when one of four types of outcomes are placed on the employee's personnel file.

• [16] The phrase "may only be dealt with" serves to limit when disputes arising under "this clause" may be dealt with under clause 16. The reference to "this clause", refers to clause 86 of the agreement as a whole.

• [17] Both parties accept that the operation of clause 16 is subject to the limitation in clause 86.13 and in particular "if and to the extent that cl 86.13 applies to a dispute or part of a dispute, the Commission lacks jurisdiction in relation to that dispute or part of a dispute."[9] FRV invokes the construction rule that "the general does not derogate from the specific"[10], arguing that "Consistent with ordinary principles of construction, the general provision must give way to the specific exclusion. And clause 16 is the subject of a specific exclusion".[11] (footnote omitted)

• [18] Clause 86.13 sets out two circumstances in which relevant disputes arising under the clause may be dealt with in accordance with clause 16. The second of those clauses has no application is the matter now before me, as none of the four types of disciplinary outcomes have been placed on the personnel files of either Pyliotis or Trakas.[12]

• [19] As a result, jurisdiction for the Commission under the provisions of clause 16 arises only if there is a "dispute arising under this clause" and when there "has been a failure to comply with the procedure set out in this clause".

• [20] The UFU broadly submit that there is not a dispute arising under clause 86 and, even if there is, there have been multiple failures on the part of FRV to comply with clause 86.[13] The failures pointed to by the UFU particularly concern clauses 86.5 and 86.7, which it says have not been complied with for reason of the denial of procedural fairness to the two employees.[14]

• • There is not a dispute arising under clause 86;[15]

• FRV has failed to state the allegations against the two employees, whereby there has been a failure to comply with clause 86.7, and/or a failure to afford procedural fairness compliantly with clause 86.5;

• There is an apprehension of bias, causing a failure to afford procedural fairness compliantly with clause 86.5;

• there has been inordinate delay, causing a denial of procedural unfairness, which is inconsistent with clause 86.5; and

• • the decision to suspend the two employees and investigate their conduct is "a breach of the implied condition that functions in cl 86 are to be used rationally and reasonably".[16]

• [22] The UFU's contention that there is no dispute arising under clause 86 relies on the submission that the allegations as put to the two employees "are so vague that one cannot possibly know whether what is alleged is capable of constituting misconduct", with the UFU also submitting that such allegations as have been communicated misdescribe the IBAC report.[17]

• [23] The UFU submits that the provisions of clause 86.6 which enable the employer to provide certain directions to employees pertaining to allegations of misconduct is only enlivened "where employee misconduct is alleged" meaning that, "if something that is not misconduct is alleged in the powers or facilities listed in cl 86.6(a) - (v) are not available"[18]

"45. ... (1) There was no finding that Mr Trakas "disclosed" anything at all.

(2) There was no finding that either of them did what they did "to advance personal and industrial interests." That phrase appears in the Foreword and in Part 1.3 in the following sentence:

"Operation Turton highlights how misuse of information can enable further misconduct and can be used to advance personal and industrial interests."

That is not a finding that that is what happened in the instant case.

(3) There was no finding that Ms Pyliotis accessed anything "without authorisation." Her access to Mr Trakas's email account was authorised by him;

46. What exactly is alleged against each of Mr Trakas and Ms Pyliotis is, in this light, mysterious. While, as outlined below, FRV accepts that it is not necessary at the stage of notifying an investigation to give full particulars of the allegations against the employee, it is necessary to give enough by way of particularisation that the conduct is identifiable, and indeed identifiable as capable of constituting "misconduct" within the meaning of cl 86. If not, then FRV cannot have the benefit of the carve-out in cl 86.13, which applies only to such allegations.

47. The Commission could not, on such an ambiguous footing, conclude that there has been an allegation of "misconduct" within the meaning of cl 86. For reasons given above, that means that cl 86.13 cannot be found to apply."[19]

• [25] The context of these submissions is the suspension notifications given to the two employees on 27 November 2024. Before turning to that correspondence, it should also be noted that the two employees were originally suspended with pay on 1 October 2024 for alleged misconduct; the suspensions were removed on 24 October 2024 after representations were made to FRV by the UFU on behalf of the employees about the lack of procedural fairness associated with the original correspondence. Later the same day, on 24 October 2024, the FRV Commissioner wrote to the two employees putting forward his preliminary view, that they should be suspended from employment pending consideration of the matters of misconduct.

• [26] FRV Commissioner Freeman's correspondence to the two employees on 27 November 2024, in which he informed them of his decision to suspend them from employment with pay "in accordance with clause 86.6(a)(v) of the Agreement", sets out the reasons for their suspension and the commencement of an investigation into the conduct as follows;

"While I have not formed any conclusions as to whether the alleged conduct, the subject of IBAC's findings did or did not occur and as to the consequences of such conduct if it is found by FRV to have occurred, as I have previously indicated, I consider that the alleged conduct the subject of those findings is sufficiently serious that it is appropriate to commence the Investigation referred to above. As I have previously explained, I consider that alleged conduct of the nature that IBAC found to have occurred, if such conduct is found by FRV to have occurred, may amount to misconduct under clause 86.2(a), (b) and (d) of the Agreement.

I have formed no conclusions in relation to those matters, and the investigation process that will occur is described in my Letter re the Investigation. The Investigation will be carried out in accordance with the Agreement. It has not yet reached the stage of providing you with specific particulars of the alleged misconduct or affording you an opportunity to respond to those."[20] (emphasis added)

• [27] With respect to its contentions about the provision of notice to Mr Trakas and Ms Pyliotis, about the allegations they may be required to answer, the UFU argues that there has been a failure on the part of FRV to comply with clause 86.7 which;

"provides that, as soon as practicable after an allegation of misconduct has been made and FRV has determined that an investigation is required, it is to do two things:

(1) "advise the Employee of the alleged misconduct in writing" (cl 86.7(a)); and

(2) ensure that that advice "contain[s] the allegation/s of misconduct made about the Employee" (cl 86.7(b))." [21]

• [28] Further, the UFU argues that it is insufficient to simply inform an employee that an allegation has been made, with it being necessary that such advice "contain" those allegations. For clause 86.7 to have purpose, "its object must be to actually put the employee on notice of what matters it is to which the investigation will relate. That is, the detail of the allegation has to be adequate to enable meaningful response, and preparation for participation in the investigation."[22] The UFU argues that reading clause 86.6 in this way is coherent with clause 86.5 which requires procedural fairness to be afforded, and that a person under question should "be given a reasonable opportunity of ascertaining the issues at the appropriate level of granularity, and to be informed of the nature and content of credible, relevant and significant (adverse) information".[23] The union disagrees with what it takes to be FRV's position being "that, because it may provide particulars down the line (or the investigator can do so), it need not do so at the time of making a decision to investigate, or to suspend".[24]

• [29] With respect to its claim the two employees were denied procedural fairness under clause 86.5 of the Agreement, the context of the submission flows from the first part of clause 86.5, which 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."

• [30] The UFU submits generally the two employees were denied procedural fairness under clause 86.5 of the Agreement. The context of this submission flows from the first part of clause 86.5, which 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."

• [31] Relevant to its contentions about apprehended bias, the UFU submits that, in his correspondence on 1 October 2024, FRV Commissioner Freeman "reached a variety of factual conclusions, some intermediate and some final, both in relation to the decision to suspend".[25] It argues that those were final views and that those views and conclusions, resulting in the view that it was appropriate to suspend the two employees from employment, give rise to an apprehension of bias. The UFU submit that, by the time it came for Commissioner Freeman to give consideration to the matters related in the 24 November 2024 correspondence and later the 27 November 2024 decision, that the FRV Commissioner's consideration was tainted by the his "earlier judgement and considered opinion, expressed in the October 2024 letter, that Mr Trakas and Ms Pyliotis should be suspended, despite that in the meantime there was a further opportunity given for comment".[26] The union further submits;

"A reasonable apprehension of bias will exist if the fair-minded lay observer might reasonably consider, as a real possibility, that Commissioner Freeman might have been so committed to suspending that he or she was incapable of altering that view."[27]

• [32] In its conclusion on the subject of apprehended bias, the union submits that;

"In the circumstances, the decisions to suspend, made on 27 November 2024, were affected by an apprehension of bias. Accordingly, they involved a denial of procedural fairness, and hence a failure to follow the processes set in cl 86. Thus, the cl 86.13 exclusion does not apply, and the Commission has jurisdiction."[28]

• [33] The UFU also argues FRV has denied the two employees procedural fairness, by delaying the commencement of the investigation and by suspending the investigation of the employees unreasonably.

• [34] The UFU recalls that the events in question occurred in 2018 and 2019, around six years ago. In other jurisdictions, the matters would be outside of the time limits for the commencement of the action. It notes that the effect of the passage of time was apparent when the two employees were examined by IBAC. There are matters the two could not recall and occasions where documents could not be found;

"The result was that IBAC was unable to make findings on matters relevant to its investigations (e.g., why Ms Pyliotis had asked Mr Trakas to send an email from his account. Nearly a further four years have passed even since IBAC "concluded" its investigation in 2021. It is inevitable that the prejudice to Ms Pyliotis and Mr Trakas, from delay, will have considerably enhanced."[29] (cross reference omitted)

• [35] The union is critical of FRV for not proceeding with its concerns at an earlier time, if, that is, it held those concerns at the time;

"89. FRV has said, and may again say, that from 2018-2019 to the present day, it was not "in a position to take any steps that would have prejudiced the integrity of IBAC's ongoing investigation," because to do so would have "necessarily undermined IBAC's ability to obtain evidence and make findings". This is an implausible explanation. There is no basis for thinking that commencing a workplace investigation would have any effect on the "integrity" of the IBAC's investigation, whatever that might mean. If they reached opposing views, so what? An extant workplace investigation could not "undermine" IBAC's ability to obtain evidence or make findings. In fact, it would be quite extraordinary, taking a different case, if - a serious and credible allegation of actual corrupt conduct having been made against (say) a council employee - the council was required to leave that person in his or her position and take no action until an anti-corruption body had formed a view about things.

90. Even if FRV had a genuine (although misplaced) concern that it should not investigate or otherwise do anything while IBAC was investigating, at the very least it ought to have written to Mr Trakas and Ms Pyliotis saying, "you should be aware that after IBAC's investigation finishes we might, ourselves, investigate you - so you should take whatever steps you need to take in order to preserve documents and memories.""[30] (cross references omitted)

• [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.[31]

• [37] FRV argue its decision making to date is within the scope of the term "Any dispute arising under this clause", as it appears in clause 86.13 of the Agreement. With respect to the UFU's assertion that the Commission is unable to be satisfied the employees' alleged misconduct is misconduct within the meaning of clause 86, it submits:

"This argument jumps the gun. The time for the Commission to determine whether conduct amounts to "misconduct", if and when it has jurisdiction, is after a document of a kind described in clauses 86.13(a)-(d) has been placed on an employee's personnel file. That has not occurred, and therefore inquiries into whether alleged conduct is "misconduct" are premature. They are the very kind of merits arguments excluded by clause 86.13".[32]

"Obviously there is a dispute, and obviously from the UFU's perspective it includes whether the alleged conduct constitutes "misconduct" within the meaning of clause 86. More fundamentally, and as explained above and in the FRV Submissions, the Extant Dispute is about the Decisions to Commence Investigations and the 27 November Suspensions. The conclusion is inescapable that the Extant Dispute is within the description of clause 86.13: "Any dispute arising under this clause...".[33]

• [39] FRV argue that beginning the investigation was justified by the 'alleged conduct' described in the IBAC Operation Turton Special Report.[34] It also argues, in the alternative, that the specific particulars of the alleged misconduct can be provided during the investigation itself, not at the outset of the investigation.[35]

"[51] There has been no failure to comply with procedure set out in clause 86. Subclause 86.6(a)(ii) provides a procedure that where Employee misconduct is alleged, FRV may "determine that it is appropriate to immediately commence an investigation of the alleged misconduct in accordance with clause 86.9". That is what FRV has done through the Decisions to Commence Investigations. FRV has made it clear that the procedure which will be followed will be in accordance with clause 86.9. While some details have been provided by referring to alleged conduct of the nature found by IBAC to have occurred, FRV has made it clear that it has not made any findings and that the process will include "providing the Employee with specific particulars to allow the Employee to properly respond to the alleged misconduct" (clause 86.9(c)(iv) of the Agreement). Doing so will also satisfy the requirements of clause 86.7, as well as satisfying the procedural fairness and natural justice requirements of clause 86.5.[36]

• [40] FRV's submissions first address the UFU's position, that determinations made by the FRV Commissioner about the "initial suspensions", being those determined on 1 October 2024 and later withdrawn, give rise to an apprehension of bias. It argues that the withdrawal of the determinations came about as a result of the conclusion, by agreement, of a dispute arising under the Agreement, meaning there has been "accord and satisfaction" of the dispute, meaning it cannot now be relied upon by the UFU.[37] As to the latter part of the dispute, FRV submits there has been no conclusion by FRV as to whether either Mr Trakas or Ms Pyliotis have committed misconduct.[38]

• [41] More pertinently, the initial suspensions (now revoked) are unable to be viewed as creating a reasonable apprehension of bias. Merely because a decision-maker held a particular view at one time does not preclude them from further deliberation of the same matter. This is reinforced by the four-weekly suspension review mechanism in clause 86.6;

"40. Amongst other things, the mechanism in clause 86.6(b) for a suspension decision made under clause 86.6(a)(v) to be reviewed after four weeks, and the mechanism under clause 86.6(c) for further reviews every four weeks thereafter, speaks against a principle being embodied in the Agreement that a decision maker who has decided on the basis of facts then available that suspension is appropriate, can never again consider based on the facts available later whether suspension is appropriate. If such a principle did exist in the Agreement, then FRV would very soon run out of potential decision makers during an ongoing investigation; that is a very impractical outcome, not reflecting industrial or business common sense. The facts of the matter did not materially change between the Initial Suspensions and the 27 November Suspensions, because the Employees declined the opportunity to provide information as to whether suspension was appropriate."[39]

• [42] Further, FRV rejects the submission advanced by the UFU that the investigation process was commenced unfairly on the ground that the decisions "were made without any notice to Mr Trakas or Ms Pyliotis, and without any opportunity given to them to make submissions".[40] In this regard, FRV submits;

"[16] To the extent that paragraph 17 of the UFU Submissions refer to the Decisions to Commence Investigations, it is nonsensical to suggest that there should have been an "opportunity given to them [the Employees] to make submissions" about whether to commence an investigation. If there needs to be submissions as to whether to commence an investigation, why not require an opportunity to make submissions as to whether there should be a decision to require submissions as to whether to commence an investigation? Why not require submissions as to whether there should be submissions as to whether there should be submissions as to whether to commence an investigation? Ad nauseum. The process has to start somewhere.[41]

[17] Clause 86.6(a)(i) and (ii) of the Agreement make it clear that the beginning is the employer deciding whether to commence an investigation and then - after that - as part of the investigation procedure and the procedures which follow it, under clause 86.9 to 86.11, an employee the subject of an investigation is given opportunities to respond. This approach is both practical, and fair."[42]

• [43] FRV poses in its submissions the question of why there was sauch a long period between the commencement of the IBAC investigation and its conclusion in 2021 and the publication of the Special Report in 2024. It answers the question with reference to the Special Report's section dealing with responses received to a draft report, then submitting that "Whatever the cause(s) of the delays were, the Commission cannot find that they were FRV's fault."[43]

• [44] Rejecting as misconceived the possibility there is a "statute of limitations" in clause 86, FRV submits:

"43. That apparent misconception put aside, one must remind oneself that the issue now being determined by the Commission is a jurisdictional one. In the absence of a statute of limitations, questions of delay are inherently about the merits, and - if ultimately there is some disciplinary outcome - then perhaps about the fairness of some disciplinary outcome. They are not jurisdictional matters.

44. As to the suggestion - at paragraph 89 of the UFU Submissions - that FRV should have commenced an investigation while IBAC's processes were ongoing, it only needs to be said out loud to understand why it must be rejected. The Employees, as natural persons, have important protections including the privilege against self- incrimination and the privilege against self-exposure to penalties. Requiring the Employees to answer questions of their employer, about the same or similar matters as those apparently investigated by IBAC, would almost inevitably engage those rights and risk interference with the IBAC matter. It was completely understandable that FRV waited until IBAC's investigation and related processes were complete, and the IBAC Operation Turton Special Report was published."[44]

• [45] FRV concludes the subject of delay with the submission that the issue faced by the Commission is a matter of jurisdiction and that "[a]lleged delay does not give the Commission jurisdiction, in the face of clause 86.13".[45]

• [46] With respect to the UFU's submission that, absent express contrary intention, "the framers of the Agreement can be taken to have intended that processes created by the Agreement should be used rationally and reasonably",[46] FRV submits this is an invitation to "go further than any Court, or the Commission, has been known to go before". FRV submits that this is because it would find "in an enterprise agreement a requirement that every decision of an employer under an enterprise agreement must comply with the administrative law standards discussed in High Court cases such as Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 and Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541".[47] FRV elaborates;

"47. Such an approach is, with the greatest respect, out of touch with the reality of enterprise agreements.

48. Narrow or pedantic approaches to interpretation are misplaced, and it is justifiable to read an award or enterprise agreement to give effect to its evident purposes having regard to its context despite inconsistencies or infelicities of expression which might tend to some other reading. The search is for the meaning intended by the framers of the document, bearing in mind that such framers were likely of a practical bent of mind and likely to have been concerned with expressing their intention in ways understood in the context of the relevant industry and industrial relations environment. Further, the words of an industrial instrument must not be interpreted in a vacuum divorced from industrial reality. The construction to be given to an award or enterprise agreement clause should not be a strict one, but rather should be one that contributes to a sensible industrial outcome such as should be attributed to the parties. Reference may also be made to whether a particular construction would make industrial or commercial sense, and an interpretation which accords with business common sense will be preferred to one which does not."[48] (citations omitted)

• [47] Advocating the rejection of the UFU's approach, FRV makes the alternative submission that if such principles are to be applied, they should be applied in full[49] and;

"... the doctrine of legal unreasonableness is not a vehicle to overturn decisions on merits grounds. That is precisely what the UFU seeks to do. It disagrees with the Decision to Commence Investigations and the 27 November Suspensions, and it invites the Commission to find jurisdiction to consider quashing them based on the UFU's reasons for disagreeing with the decisions. The UFU's argument is simply not made out, to the "necessarily stringent" standard applied by the High Court and the Federal Court.[50]

• [48] The UFU's contention that no dispute arises under clause 86 is contingent on a finding that the suspension and investigation of Mr Trakas and Ms Pyliotis was not brought about by a finding of misconduct.

• [49] The 24 October 2024 suspension correspondence to the two employees sets out the basis upon which the FRV Commissioner was considering their suspension from work. That correspondence explicitly refers to the prospect of the employees' conduct amounting to misconduct. The letters set out that the author, FRV Commissioner Freeman considers that;

"... 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 regarding, 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 IBAC 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."[51]

"... 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 regarding, 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 IBAC 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."[52]

• [50] I am satisfied that this correspondence sets out a concern about each employee which may, if investigated and decided upon properly, meet the meaning of "misconduct" as set out in clause 86.2. The allegation that each was involved in misconduct is clear, as is the reference to the nature of the allegation. The letters are not capable of being construed otherwise.

• [51] The 24 October 2024 suspension correspondence to the two employees sets out the basis upon which the FRV Commissioner was considering their suspension from work. He first states that findings of the type made by IBAC are "sufficiently serious that it is appropriate to commence" an investigation. The submission made by the UFU that the allegations against their members "are so vague that one cannot possibly know whether what is alleged is capable of constituting misconduct" is disingenuous and not capable of acceptance. This is not a situation in which an employee is told moments before an investigation is commenced that "we have heard some things about you but we can't tell you what those things are".

• [52] The 27 October 2024 suspension correspondence can only be read as stating to the two employees that, following publication of the IBAC Special Report, the findings about them within the report are sufficiently serious to warrant an investigation into their reported conduct.

• [53] There is nothing vague about the IBAC findings or FRV's letter. The correspondence alleges employee conduct within the meaning of clause 86.

• [54] While so much of the history of the IBAC investigation and the employees' response to it is not known to me, what is on the record shows the communication from FRV to the two employees about their potential suspension and investigation would likely have strong and clear meaning to them and the UFU. This is because the IBAC Special Report findings are clear;

• [55] In the Special Report's section 1.2 (Outcomes) IBAC substantiated the allegation that Mr Trakas accessed and facilitated other MFB employees' access to MFB email accounts - including those of the Executive - without the necessary athorisation in April and May 2018. IBAC found:

1. In August 2018, Mr Trakas allowed another employee, Vasiliki Pyliotis, to send an email from Mr Trakas's account to avoid the email being linked to Ms Pyliotis or her account.

1. In April 2019, Mr Marshall requested that multiple MFB employees (including Ms Pyliotis) access information relating to an investigation into Mr Marshall, without authorisation.

• 3. Ms Pyliotis did so by accessing the MFB ICS system and reported back to Mr Marshall she had been unable to find anything.[53]

• [56] In section 4.1 (Unauthorised access of MFB email accounts by Mr Trakas's user account (April-May 2018)) IBAC made findings particular to Mr Trakas;[54]

1. IBAC found Mr Trakas accessed other MFB employee's email accounts without authorisation, contrary to MFB policies and procedures, but without making a finding of corrupt conduct.

1. Mr Trakas was recorded as granting and removing access for himself to various MFB email accounts, including those of MFB's Executive Leadership Team (ELT) throughout April and May 2018. It was also identified that Mr Trakas's account facilitated access to other MFB email accounts for other MFB employees outside of established authorisation processes.

1. IBAC reviewed the external audit report commissioned by MFB into these allegations. IBAC identified 19 access events involving Mr Trakas's user account that had no explanation. These included instances of his account providing and removing third-party access to the CIO's and CEO's mailboxes without any request or authorisation, and of his account having access to MFB employee mailboxes for extended amounts of time. According to MFB policies and procedures, access to a person's mailbox requires authorisation from either a Director and the CIO, or the owner of the mailbox.

• [57] In section 4.2 (Unauthorised access and use of Mr Trakas's account by Ms Pyliotis (August 2018)) IBAC found;[55]

1. Mr Trakas allowed Ms Pyliotis to use his computer and user profile to forward an email that she did not want to come from her mailbox. IBAC was not able to determine Ms Pyliotis's motivation for doing this.

1. Mr Trakas said, once sent, he deleted the email from his inbox and sent items.

1. Ms Pyliotis told IBAC she did not recall this incident. However, when asked if she could explain why she would want to send an email out of MFB but for it not to come from her email account, she said the only reason she could think of would be that this email related to her role as union delegate. She also explained she often used her personal non-MFB email account to send information on 'MFB matters that are union related' to avoid scrutiny or detection by MFB.

1. IBAC was unable to locate the email on MFB systems.

1. IBAC also found that at the time of this incident, the audit log function for the archiving system had been switched off, further reducing the chances of such an email being logged via the audit function.

• [58] IBAC reported in section 4.4 (Request for unauthorised access to MFB information (April 2019)) that it had found, via lawfully intercepted telephone calls, that Mr Marshall contacted Ms Schroder on 23 April 2019 asking for further information on a WorkSafe investigation into bullying allegations. Together, Mr Marshall and Ms Pyliotis settled upon a course of action that saw Mr Marshall immediately call Ms Pyliotis and ask her to discreetly conduct checks in ICS systems to see what information she could locate relating to the investigation. Lawfully intercepted telephone conversations between Ms Pyliotis and Mr Marshall showed that she called him the next day, saying that she and an unnamed male colleague had checked incoming emails to the MFB ICS service desk to ascertain whether there were any requests to give the Board President 'any type of access', but were unable to find any relevant information.[56]

• [59] While not making a finding of corrupt conduct, the Turton Special Report goes through, at length, conduct of the two employees which could, if sufficiently established to a sufficient standard to a nominated decision-maker, be either misconduct or serious misconduct. It cannot have been a surprise to Mr Trakas, Ms Pyliotis or the UFU that upon publication of the Special Report, they would be called to account for the findings made in the Special Report.

• [60] The UFU submission that it is insufficient for the purposes of clause 86.7 to simply inform an employee that an allegation has been made, arguing it is instead necessary that such advice "contain" those allegations, imports a level of formality to the clause which is not present on the face of the clause. I am satisfied that FRV has met the requirements of clause 86.7. In particular, the allegation of misconduct was made promptly after publication of the Turton Special Report on 25 September 2024. The determination by the employer of the requirement for an investigation is not inconsistent with clauses 86.6(i) and (ii).

• [61] Firstly, those subclauses are permissive and not prescriptive, stating that the "Employer may do any of the following" (emphasis added). The correspondence to the two employees is in any event consistent with the author having made an initial assessment before commencing the formal process to determine if an investigation is required. It is also consistent with a determination by the employer that it is appropriate to immediately commence an investigation. Finally, the written advice provided to the two employees is also consistent with the requirement in clause 86.7 (b) that it "contain the allegation/s of misconduct made about the Employee".

• [62] In particular, the letters to the two employees set out the text referred to above about the core allegations made about them, to the effect that a finding by IBAC they may have accessed MFB information without authorisation may amount to misconduct. This is a serious allegation and one capable of meeting the standard of the requirement within clause 86.7 (b). In any event, clause 86.7 taken as a whole is also open to the construction that detailed advice about the allegations of misconduct may be made "as soon as practicable" after the employer's determination "that an investigation is required" and that the time period for particularisation of the allegations had not ended when the letters were sent on 24 October 2024.

• [63] Relevant to the question of apprehended bias, the UFU submits the established test for determination of apprehended bias was stated in Ebner v Official Trustee in Bankruptcy[57], which applies as much to administrative decision making as judicial. The union noted that the High Court held that;

"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."[58] (underlining in UFU submissions)

• [64] Referring to the test as the "double might" test, the UFU submitted;

"66. Application of the "double might" test requires a three-step approach:

(1) identification of the factor which it is said might lead the decision-maker to resolve the question other than on its legal and factual merits;

(2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and

(3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer."[59]

• [65] In this matter, the decision making about which it is suggested there could be an apprehension of bias is the suspension proposed in the 24 October 2024 correspondence. Despite FRV's submissions on accord and settlement in respect of the dispute arising out of the 1 October 2024 correspondence and suspension, I consider there remains the possibility of an apprehension of bias on the part of the decision-maker referred to in the 24 October 2024 notice and 27 November 2024 decision because of things they may have done at an earlier time (including in the course of an ostensibly settled dispute). That is, it is entirely possible the fair-minded lay observer could, in the course of observing conduct in November, consider that something said or done in October may influence the decision needed to be taken in November.

• [66] The submission that the UFU put forward on the subject of apprehension of bias is essentially that because FRV Commissioner Freeman had been involved in the original correspondence, there might be an apprehension on the part of the fair-minded lay observer of bias, with the possibility that he was so committed to suspending the two employees, he was incapable of altering that view.

• [67] In this case, the situation is not that of a decision-maker who has had their decision overturned by another person or tribunal, but rather a decision maker who has, upon receipt of representations from the UFU, chosen voluntarily to retract their original decision. This should in itself be sufficient to satisfy the fair-minded lay observer that FRV Commissioner Freeman's second consideration of the matter may bring about a different outcome, especially since Mr Trakas and Ms Pyliotis were invited to provide submissions as to why suspension should not occur, but chose not to. Further, neither employee asked for the decision-maker to be a person other than FRV Commissioner Freeman on the basis that they apprehended bias on his part.

• [68] In the circumstances, an apprehension of bias on the part of FRV Commissioner Freeman does not reasonably arise. He listened to the complaint about the original correspondence and withdrew it. He later properly put Mr Trakas and Ms Pyliotis on notice that he was considering suspending each from duties, with it being his preliminary view

that the suspensions were "an appropriate and proportionate interim response to the alleged misconduct", together with his invitation to each to provide a response together with any mitigating circumstances.[60] In these regards, the correspondence serves as a notification to each of Mr Trakas and Ms Pyliotis to put forward their best case as to why suspension should not occur. Once received, FRV Commissioner Freeman would have been obliged to consider and weigh what was said against his preliminary view. He had 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.

• [69] In the absence of a response from either Mr Trakas or Ms Pyliotis, there were no contrary facts drawn to his attention or opinions voiced. In such a situation, preliminary become final and it would be highly doubtful a fair-minded lay observer would take an alternative view.

• [70] For these reasons, I find the fair-minded lay observer would apprehend no bias at any stage of FRV Commissioner Freeman's decision making over the suspensions; either at the point it was mooted on 24 October 2024, or when it was determined on 27 November 2024.

• [71] The submission by the UFU that there has been inordinate delay in the commencement of an investigation pertaining to the two employees rests upon the view that it has taken from 2018 until 2024 for the commencement of an investigation process, with nothing much in between.

• [72] There are matters relating to Operation Turton which are plainly not within the evidence available to the Commission. There is no narrative available to me of the steps taken by IBAC to investigate and report on its findings, if any, either to the MFB or FRV, or to the two employees about progress with the investigation.

• [73] The facts available to me disclose only three things of temporal relevance; that a report was made by the MFB to IBAC in June 2018 about Mr Trakas; that IBAC then reported on that and other matters in its Turton Special Report in September 2024; and that in October and November 2024, FRV commenced an investigation into the conduct of Mr Trakas and Ms Pyliotis.

• [74] The argument that no other complaint processes would permit an investigation to be commenced about conduct so old is emotive but ultimately has no application in this particular matter.

• [75] All that is known about the notification by MFB to IBAC in June 2018 is that it apprehended there was conduct which may, in accordance with the relevant legislation, amount to criminal corruption on the part of Mr Trakas. While that was not ultimately found in IBAC's Turton Special Report, that determination is not one for the MFB or FRV to have made. Neither of those organisations is an investigatory body or has authority to determine whether or not something is criminal corruption.

• [76] Why it took IBAC so long to conclude its processes of investigation in respect of Mr Trakas and Ms Pyliotis is not known. All that is known is that the Special Report was published in late September 2024, with FRV acting upon its findings within the weeks that followed.

• [77] That a party may be disadvantaged in the course of investigation by the effluxion of time is something that may be put to the decision-maker who will then have the obligation of assessing whether such disadvantage was actual and whether it prevents the making of any relevant findings.

• [78] The circumstances of the commencement of the investigation do not amount to a failure to comply with the procedures set out in clause 86.13, the provisions of clause 86.5 or any other part of clause 86.

• [79] The text of the 24 October 2024 correspondence to Mr Trakas and Ms Pyliotis invites a response to FRV Commissioner Freeman's preliminary view that they should be suspended from employment with pay. Initially, the employees were to respond by 28 October 2024, which was later extended to 7 November 2024. The proposed suspension ultimately was not determined until 8 November 2024.

• [80] However, within the same 2024 correspondence, FRV Commissioner Freeman directs Mr Trakas and Ms Pyliotis to remain absent;

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 that effectively immediately:

• - 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 regarding the proposed suspension and provided you with my final decision in writing.

I have provided a copy of the formal process to be followed at Annexure A.

Any breach of the directions outlined in this letter will be treated as serious misconduct, which may result in the immediate termination of your employment."[61] (emphasis added)

• [81] The 28 November 2024 determination notes that neither Mr Trakas or Ms Pyliotis provided a response to Commissioner Freeman's preliminary view about suspension.

• [82] There is a distinction to be noted between being "suspended from employment with pay" and being directed to "remain absent from duty", as set out in the above passage.

• [83] Being directed to "remain absent from duty" is in effect, a form of paid leave for the stated purpose of giving the employees time to prepare their response to the suspension proposal, which as it turns out lasted a month and not the handful of days originally anticipated.

• [84] In general terms, a suspension from employment is characterised by certain features. First, the operation of all or some of the terms of the contract are suspended and during the suspension, the parties to the contract are not obliged to perform those terms during that period. Second, the contract of employment itself continues throughout the duration of the suspension. Third, a suspension is temporary and there must be "at least the possibility, however conditional, of the restoration of the complete operation of the contract".[62]

• [85] In this case, suspension is regulated by clause 86.6 of the Agreement, which permits suspension as one of the options the employer may implement where employee misconduct is alleged (clause 86.6(a)(v), provided it is reviewed at four weekly intervals (clause 86.6(b) and (c)). These matters are plainly consistent with the general expectation of suspension.

• [86] The fineness of the distinction in this case between being directed to "remain absent from duty" and the alternative of being "suspended from employment with pay" is both plausible as well as operative. When sent the letter on 24 October 2024, neither Mr Trakas or Ms Pyliotis had been suspended. Instead, the direction given by the FRV Commissioner was an opportunity for Mr Trakas and Ms Pyliotis to give thought to and articulate reasons as to why they should not be subject to a suspension from work with pay, in the manner contemplated within clause 86.6. The original correspondence to the two employees is dated Thursday, 24 October 2024 with their response being required by no later than 5 PM Monday, 28 October 2024; that is, in two full working days' time. The fact that each employee then chose to dispute aspects of the correspondence sent to them by FRV Commissioner Freeman on 24 October 2024 and that his determination about the subject of that correspondence was then delayed for that and other reasons, until 27 November 2024, does not change that there is a meaningful distinction between the directions. On the one hand, the two employees were provided with paid leave in order to prepare a response, and on the other, there was consideration of their suspension from work with pay.

• [87] In finality, neither employee chose to put to their employer reasons as to why they should not be suspended from work with pay. Had they done so, the final determination by the FRV Commissioner would have had to legitimately take into account what was put to him and weigh the merits of suspending or not. While a failure of Mr Trakas and Ms Pyliotis to respond to FRV Commissioner Freeman's "preliminary view" cannot be held against them, the fact of the matter is that by not putting forward their views or reasons as to why suspension should not occur, there is nothing of substance for the FRV Commissioner to consider beyond the matters to which he had already alluded.

• [88] On this basis, no finding is available that the suspension from work with pay on 27 November 2024 was contrary to the procedures set out within clause 86 and clause 86.6 in particular. It follows that there has not been a failure of FRV to comply with the procedures of the clause by determining a suspension.

• [89] Having made that finding, it should be noted that the employees' protection against unjustified suspension is set out within clause 86.6 (b) and (c). Implicit within the obligation of the employer to "continue to review any decision regarding an Employee's suspension every four weeks" must be the opportunity for the employee to put forward reasons as to why their suspension should not continue. Should either employee do so, FRV will be obliged to review and weigh the continuation of the suspension against such matters as the employee may have put forward.

1. The suspension from work of Mr Trakas and Ms Pyliotis is consistent with the matters within clause 86 and in particular, the investigation of alleged misconduct on their part. It follows that such dispute as arises is a dispute under clause 86.

1. The allegations have been stated to Mr Trakas and Ms Pyliotis in a way that is consistent with clause 86.7, noting that the process of the provision of putting to them full particulars of the allegations may not have concluded.

1. There is no apprehended bias on the part of the FRV Commissioner in respect of his correspondence to Mr Trakas and Ms Pyliotis regarding their suspension and in particular his letter to them dated 27 November 2024.

1. FRV has not unreasonably delayed its commencement of an investigation.

1. A finding is not available that the suspension of Mr Trakas and Ms Pyliotis from work with pay is not rational or reasonable.

• [91] Because of these findings, I am not satisfied of the requirement in clause 86.13, for access by either Mr Trakas or Ms Pyliotis to the provisions of clause 16, namely "a failure to comply with the procedure set out in this clause" (noting that the second element of the clause, of documents being placed on the employee's personnel file, has no application in this matter).

• [92] The dispute is determined accordingly.

Appendix 1: Relevant Clauses of the Fire Rescue Victoria (Former MFB) Corporate & Technical Employees Agreement 2017

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.

16.2 The parties agree that disputes about any such matters shall be dealt with by using the provisions in this clause.

16.3 To ensure effective consultation between the employer, its employee(s) and the union on all matters, the following procedure shall be followed in an effort to achieve a satisfactory resolution of any dispute or grievance. The steps of the procedure apply equally to a dispute raised by an employee(s), the union or FRV.

a) Step 1 - The dispute shall be submitted by the union and/or employee(s) to the employee's immediate supervisor.

b) Step 2 - If not settled at Step 1, the matter shall be submitted to the appropriate manager.

1. Step 3 - If not settled at Step 2, the matter shall be recorded. The matter shall be submitted to the appropriate delegated Industrial Representative of the employer for consultation.

d) Steps 1 to 3 must be concluded within a period of ten (10) consecutive days. Disputes are to be resolved at a local level wherever possible.

e) Step 4 - If the matter is not settled at Step 3, the dispute shall be formally submitted in writing to the Director Workplace Relations (as amended), setting out details of the dispute and, where appropriate, with supporting documentation. The Director Workplace Relations (or delegate) shall convene a meeting of the employer, employee(s) and the parties covered by this agreement listed at clause 6 of this agreement who may be affected by the dispute within a period of one week (7 days) of receipt of such submissions and endeavor to reach a satisfactory settlement.

f) Step 5 - 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 Fair Work Commission (FWC). FWC may utilise all its powers in conciliation and If not resolved arbitration to settle the dispute as set out in the Fair Work Act 2009 (as amended).

16.4 While the above procedures are being followed, including the resolution of any dispute by FWC, the work practice or situation that existed immediately prior to the subject matter of the grievance or dispute occurring (status quo) shall be maintained until the matter is resolved. No party shall be prejudiced as to the final settlement by the continuance of work in accordance with this sub-clause.

16.5 A dispute may be submitted, notified or referred under this clause by the union.

16.6 A decision of FWC under this clause may be appealed. A dispute is not resolved until any such appeal is determined.

16.7 Unless related to a condition of employment in this agreement this clause shall not apply to a dispute on a health and safety issue.

16.8 An Employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this clause.

a) establish procedures for managing misconduct or alleged misconduct of an Employee;

b) provide for Employee alleged misconduct to be investigated and addressed expeditiously and with minimal disruption to the workplace;

1. reflect the public sector values of integrity, impartiality, accountability and respect with the aim of ensuring that Employees are treated fairly and reasonably; and

d) manage the Employee's performance in accordance with this clause 86 instead of clause 85 where the Employer determines that it would be more appropriate.

For the purposes of this clause, misconduct includes:

a) a contravention of a provision of the Public Administration Act 2004 (Vic), -the regulations to that Act, the Code of Conduct, the MFB's Workplace Behaviour Policy, or any successor policy adopted by FRV, or a provision of any statute or regulation that applies to the Employee in the Employee's employment:

1. a contravention, without a lawful and reasonable excuse, of a lawful direction given to the Employee as an Employee by a person authorised to give that direction;

d) an Employee making improper use of their position for personal gain;

e) an Employee making improper use of information acquired by the Employee by virtue of the Employee's position to gain personally, or for anyone else, financial or other benefits or to cause detriment to the VPS or the public sector; or

f) serious misconduct such as theft, fraud, violence, or a serious breach of workplace health and safety.

Any matters that have arisen under the management of unsatisfactory work performance process in clause 85 may be considered in the misconduct process pursuant to this clause 86.

An Employee is entitled to be represented by a person of their choice (Including a Union representative) at any stage of the misconduct process.

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.

1. The Employer will:
   1. advise the Employee of the purpose of any meetings;
   2. provide the Employee with a copy of the formal process to be followed;
   3. 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
   4. 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.

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

1. 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;
2. determine that it is appropriate to immediately commence an investigation of the alleged misconduct in accordance with clause 86.9;
3. direct the Employee to proceed immediately to perform alternative duties or work at an alternative place of work;
4. 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
5. 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:

1. review this decision no later than a date which is four weeks after the commencement of the suspension; and
2. confirm whether the suspension is to continue or is no longer necessary.

1. 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] Respondent Submissions in Reply: TAB 4 - Operation Turton Special Report; Digital Hearing Book (DHB), p.378.

[4] Secretary, United Firefighters' Union of Australia, (Victoria Branch).

[6] Applicant Outline of Submissions , DHB, pp.28 - 29.

[7] Respondent Submissions in Reply_,_ [13]; DHB, p.454.

[9] Applicant Outline of Submissions, [6]; DHB, p.27.

[10] Respondent Outline of Submissions, [21]; DHB, p.141.

[12] Applicant Outline of Submissions, [6]; DHB, p.27 and Respondent Outline of Submissions, [52]; DHB, p.148.

[13] Applicant Outline of Submissions, [38 - 47]; DHB, pp.33 - 35.

[20] Respondent Outline of Submissions: TAB 14 - Letter from FRV to Vicky Pyliotis; DHB, p.440. and Respondent Outline of Submissions: TAB 15 - Letter from FRV to Stephan Trakas; DHB, p.444.

[21] Applicant Outline of Submissions, [48]; DHB, p.35.

[32] Respondent Submissions in Reply, [10]; DHB, p.453.

[36] Respondent Outline of Submissions, [41]; DHB,, p. 147.

[37] Respondent Submissions in Reply; DHB, p.454.

[40] Applicant Outline of Submissions, [17]; DHB, p.28.

[41] Respondent Submissions in Reply; DHB, p.454.

[46] Applicant Outline of Submissions, [93]; DHB, p.47.

[48] Respondent Submissions in Reply; DHB, pp.459 - 460.

[51] Respondent Outline of Submissions - TAB 12: Letter to Mr Trakas; DHB, p.434.

[52] Respondent Outline of Submissions - TAB 13: Letter to Ms Pyliotis; DHB, p.437.

[53] Respondent Submissions in Reply: TAB 4 - Operation Turton Special Report; Digital Hearing Book (DHB), p.380.

[57] [2000] HCA 63; (2000) 205 CLR 337.

[59] Applicant Outline of Submissions; DHB, , p.40.

[60] Respondent Outline of Submissions - TAB 12: Letter to Mr Trakas; DHB, pp.434 - 435 and Respondent Outline of Submissions - TAB 13: Letter to Ms Pyliotis; DHB, pp.437 - 438.

[61] Respondent Outline of Submissions: FRV 8 - Letter to Vicky Pyliotis - 24.10.2024; DHB, p.87.

[62] The Modern Contract of Employment (Third Edition), Neil I, Chin D and Parkin C, Lawbook Co., 2023, para 9.001 - 9.003.

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