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[2026] FWC 632
General information, not legal advice.
Fair Work Commission
2026-03-04
Original judgment source is linked above.
s.739 - Application to deal with a dispute
Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales T/A Public Service Association of New South Wales
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
[1] On 16 December 2025, Ms Xanthe Thomson (the Applicant) lodged an application with the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the FW Act), raising a dispute in accordance with clause 51 of the Public Service Association of NSW Staff Enterprise Agreement 2024 (the Agreement). The Applicant is employed by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales T/A Public Service Association of New South Wales (the Respondent/the PSA) as an Industrial Officer.
[2] The Applicant has been accused of falsifying her timesheets (the Allegation). The Applicant vehemently denies this allegation.
[3] The dispute relates to 'Managing Misconduct' as provided under clause 51 of the Agreement as follows:
51.1 The PSA must follow the procedures of this Clause and the PSA Performance/Conduct Management Policy before taking disciplinary action, including dismissal, against an employee for misconduct or serious misconduct. The PSA will update the Performance/Conduct Management Policy, in consultation with the unions, within twelve (12) months of the making of this Agreement.
51.2 An employee is entitled to be represented by a person of their choice, including their Union, at any stage of the procedures set out in this clause. The General Secretary will advise employees of this right.
51.3 Where an allegation(s) of misconduct or serious misconduct (serious misconduct is defined in s.1.07 of the Fair Work Regulation 2009) is made against an employee, the General Secretary will provide the employee with the details of the allegation(s) of misconduct or serious misconduct in writing and give the employee an opportunity to respond to the allegation(s) and to raise any mitigating circumstances.
51.4 Where an allegation(s) of misconduct have been made against an employee, the General Secretary may direct the employee to be absent from the workplace on full pay pending the resolution of the matter.
51.5 The General Secretary will consider the employee's response to the allegation(s) and any other relevant material, and will determine such disciplinary action as they deem appropriate.
51.6 The employee will be advised in writing of the decision by the General Secretary in relation to the proposed disciplinary action."
[4] The Applicant is managed by, and reports to, Ms Julie Bond, Industrial Manager.
[5] In around September 2025, Mr Stewart Little, General Secretary of the PSA, became aware that the Applicant had been working from home and taking flex leave or banking flex leave adjacent to weekends and long weekends. The General Secretary undertook a preliminary review of the Applicant's timesheets. Further to these steps, the General Secretary instructed Mr Troy Wright, Assistant Secretary, to undertake a formal review of the Applicant's timesheets.
[6] The Applicant was invited to a meeting on 23 October 2025, with Mr Wright and Ms Nicole Jess, President of the PSA The Applicant attended this meeting with her support person, Mr Nathan Bradshaw, an Industrial Manager employed by the Respondent, who is also the Applicant's husband. At this meeting, allegations were raised with the Applicant as follows:
"That on multiple occasions between 17 July 2025 and 29 September 2025 you completed and submitted electronic time records you knew to be false that indicated you were working at times that you were not and in turn you received salary and leave based on those unworked hours."
[7] The Applicant was provided with an Allegations of Misconduct Letter, which stated, among other things, that it:
(a) was provided in accordance with the PSA's Performance/Conduct Management Policy;
(b) notified the Applicant that there was an allegation of serious misconduct against her;
(c) notified that Mr Wright has been asked by the General Secretary to investigate this matter 'in accordance with the aforementioned policy';
(d) invited the Applicant to an interview for the purposes of the investigation Mr Wright was conducting; and
(e) was signed by the Assistant General Secretary, Mr Wright.
[8] On 27 October 2025, the Applicant attended an investigation interview with Mr Wright. The Applicant attended this meeting with her support person and husband, Mr Bradshaw. The Applicant provided a written response to the allegations at this interview.
[9] On 25 November 2025, Mr Wright provided a copy of his investigation report dated 24 November 2025 to the Applicant. Mr Wright recommended that the Applicant be dismissed from her employment.
[10] The Applicant provided a response to the Report on 5 December 2025.
[11] On 9 December 2025, the General Secretary sent a letter to the Applicant which stated:
"(a) an investigation report, prepared by Mr Wright, had found that on the balance of probabilities an allegation of serious misconduct is sustained;
(b) [The General Secretary] had an opportunity to review the allegations, the report, and the feedback of [the Applicant], and he was satisfied that the process undertaken was consistent with the Policy and the FW Act;
(c) He agreed with the findings that [the Applicant] had engaged in serious misconduct.
(d) He proposed to terminate her employment with an opportunity to resign; and
(e) He was giving [the Applicant] an opportunity to provide a response to his findings and proposal, after which a decision would be made."
[12] The Applicant commenced this dispute shortly after the correspondence of 9 December 2025.
[13] The Applicant's position is that the Respondent has not complied with the Policy and/or the Agreement, and is precluded from taking disciplinary action against her.
[14] The Respondent's position is that it has complied with the Policy and the Agreement.
[15] A Hearing was conducted by Video via Microsoft Teams on 27 February 2026. The parties were granted leave pursuant to s.596(2) of the FW Act to be represented at the Hearing. The Applicant was represented by Mr Aron Neilson of AEN Legal. The Respondent was represented by Mr Indraveer Chatterjee of Counsel.
[16] The Respondent did not require the Applicant for cross-examination at the Hearing.
[17] Mr Stewart Little, General Secretary of PSA, gave evidence for the Respondent.
[18] The Applicant submitted that the Commission is not required to make findings of fact as to whether misconduct did or did not occur. The Commission is only required to make a determination as to whether the Respondent has complied with the Agreement.
[21] The Applicant submitted that this subclause imposes a mandatory obligation upon the Respondent to follow the procedures under clause 51 of the Agreement and the Policy before the Respondent can take any disciplinary action against the Applicant.
[23] The Applicant submitted that as the Respondent has characterised the allegations against her as constituting 'serious misconduct', clause 6 of the Policy applies. Clause 6 of the Policy provides:
"6. Dealing with Misconduct and serious Misconduct
It is imperative that the PSA act appropriately when an allegation of misconduct or serious misconduct is made.
Allegations of misconduct or serious misconduct will be considered in the first instance by the employee's Manager. The Manager will consult with the General Secretary to determine whether there is cause for an investigation to occur.
If it is determined that an investigation is to occur, the Manager shall seek an independent person (i.e. another Manager) to conduct the investigation. In matters of serious misconduct consideration should be given as to whether an independent external investigator should be engaged.
The General Secretary may decide to suspend an employee with full pay if the allegation(s) are such to warrant it untenable to have the employee in the workplace during the investigation process.
Written advice must be provided to the employee about the allegations against him or her and about the investigation process. The advice must contain sufficient information about the allegations to allow the employee to provide a considered response.
The investigation process may include interviewing relevant staff and witnesses and/or gathering and assessing relevant documents/evidence.
The PSA will afford the employee procedural fairness. The employee will be informed of the investigation, the form it will take and that the employee may be accompanied at any interview by a support person (not involved and independent of the investigation process).
The employee must not discuss the matter under investigation with any other person or employee apart from the appropriate union delegate or representative or their support person.
The investigation should be finalised within 15 working days, or may extend longer if necessary and the employee will be notified if this is the case.
At completion of the investigation, a written report will be provided to the employee's direct Manager.
The Manager will provide a copy of the report to the General Secretary for review, along with the Managers recommendation (if any).
When making a recommendation the Manager will consider:
The employee will then be provided with a copy of the written report and will be invited to submit a written response within 10 days or a reasonable time agreed upon.
Seeking a response from the employee regarding proposed disciplinary action 'show cause"
Any disciplinary action proposed by the decision-maker in response to an employee's misconduct must be communicated to the employee in writing. The employee must be given an opportunity to make submissions to the decision-maker in relation to the proposed disciplinary action before a final decision about it is taken.
The employee should provide a written response to the Show Cause within 5 days to the General Secretary.
The decision-maker can seek a response to proposed adverse findings and proposed action at the same time.
The employee's response must be considered by the decision-maker before a final decision is made about the action to be taken.
The employee also has the right to request an interview with the General Secretary prior to any final decision being made.
The General Secretary, after taking into consideration the response from the employee regarding the allegations and the proposed adverse action (if any) may:
If the employment is terminated, the employee will be provided with a letter of termination outlining the last day of service, the misconduct relied upon and a short statement of reasons for termination of employment.
If an employee is terminated on the basis of serious misconduct, notice of termination is not required."
[24] The Applicant submitted that it is "consistent with the policy's overall theme that the employee's manager is to play a central role in the management and determination of the matter".
[25] However, the Applicant submitted that the Respondent has failed to comply with the Policy for the following reasons:
[26] The Applicant submitted that the Respondent's failure to comply with the Policy, whether on a singular basis or any combination thereof, results in a conclusion that the Respondent has not complied with the Policy or therefore clause 51 of the Agreement. The Applicant submitted that the Commission should find that the Respondent is prevented, as a result, from taking any disciplinary action against her.
[27] The Respondent submitted that it understood the Applicant's case to proceed on the assumption that Mr Wright was the complainant and investigator in this matter. However, the Respondent submitted that Mr Wright was not the source for the concerns raised; the concerns were raised by the General Secretary, and it was subsequently identified that Mr Wright was a suitable, independent person to investigate those concerns.
[28] As to the Applicant's concerns relating to Ms Bond's role, or lack thereof, and the Respondent's compliance with the Agreement and the Policy, the Respondent submitted as follows.
[29] The Respondent submitted that clause 51 mandates:
"• A right to representation for the subject employee, and the need to inform the employee of that right (clause 51.2);
[30] The Respondent submitted that as to the steps taken in the disciplinary process to date, each of these steps have been complied with.
[31] The Respondent acknowledged the clause 51 of the Agreement mandates that the Respondent "must follow the procedures of this Clause and the PSA Performance/Conduct Management Policy before taking disciplinary action". The Respondent acknowledged that, therefore, the terms of the Policy are also relevant.
[33] The Respondent submitted that the Policy identifies that its purpose is to "provide a framework for how unsatisfactory performance and misconduct will be managed by the PSA." The Respondent submitted that it is clear when reading the Policy as a whole that it is "partially prescriptive, and partly in the form of a guideline".
[34] The Respondent submitted that as to Part 6 of the policy which deals with misconduct, the Applicant has relied on a section that states:
"Allegations of misconduct or serious misconduct will be considered in the first instance by the employee's Manager. The Manager will consult with the General Secretary to determine whether there is cause for an investigation to occur."
[35] The Respondent submitted that this section cannot be prescriptive. The Respondent submitted that there are foreseeable instances where it would not be appropriate for a line manager to be involved in the consideration or investigation of a complaint of misconduct and further submitted that the policy itself identifies that the investigation should not be conducted by the manager himself or herself. The Respondent submitted that it would not have been appropriate for Ms Bond to be involved in the process here, as Ms Bond, in approving the Applicant's timesheets, may have failed in her own supervisory duties.
[36] The Respondent submitted that the General Secretary is the only person, under both the Agreement and the Policy, empowered to take disciplinary action. The Respondent submitted that the line manager's role in accordance with the Policy was to consult with the General Secretary to determine if there was cause for investigation. However, the General Secretary had already formed that view on the basis of his own enquiries. The Respondent submitted that consultation with Ms Bond was unnecessary once the General Secretary had formed the view that an investigation was necessary, and the initiation of the investigation had no adverse effect on the Applicant. The Respondent submitted the fact that Ms Bond was not involved in the initial decision to undertake an investigation cannot invalidate the investigation or its outcomes.
[37] Further, the Respondent submitted that contrary to the Applicant's interpretation of the Policy, the line manager does not have a 'central role in the management and determination of misconduct allegations'. The Respondent submitted that line manager's role under the Policy is confined to an initial consideration of whether an investigation should occur and to offer recommendations to the General Secretary on the completion of the investigation.
[38] The Respondent submitted that where an investigation is determined to be necessary, the policy requires "an independent person (i.e. another Manager) to conduct the investigation", and notes that "in most cases the Assistant General Secretary will do the investigation". The Respondent reiterated that Mr Wright was therefore the appropriate person to conduct the investigation.
[39] The Respondent submitted that the Policy identifies that any investigation report should be provided to the line manager who can, but does not have to, make recommendations to the General Secretary. The Respondent submitted that Ms Bond's input has been sought and her recommendations will be taken into account by the General Secretary.
[40] The Respondent also submitted that the Policy requires that those recommendations are only sought after completion of the investigation and cannot therefore provide any basis to 'impugn' the investigation itself. The Respondent submitted that the Manager's recommendation can only have a bearing on any decision made by the General Secretary. The Respondent submitted that the General Secretary has not yet made any decision in relation to this matter.
[41] The Respondent submitted that the mandatory elements of the Agreement and the Policy have been adhered to.
[42] The Respondent submitted that the Applicant's dispute should be dismissed.
[43] The Applicant submitted that the Respondent has claimed any deviation from the Agreement was 'immaterial' and does not warrant the granting of any relief, nor would it have resulted in any materially different outcome. However, the Applicant submitted that the obligations in clause 51 of the Agreement are plain, expressed in clear terms, and the facts here "allowed (and required) its application". The Applicant submitted that any deviation from the Agreement would be a sufficient reason for the Commission to conclude that the Respondent has failed to comply with its obligations.
[44] As to the submission that 'no materially different outcome' would have resulted, the Applicant highlighted the Respondent's present position that no determination has been made as to what, if any, disciplinary action is appropriate. The Applicant submitted that each part of the Policy and its processes are part of an "important chain prior to any decision being made" and ought to be complied with. The Applicant submitted that "[m]ateriality of outcome should not be (and is not) a consideration in the context of the mandate of Clause 51".
[45] The Applicant submitted the fact that the General Secretary had already formed his own view, and then acted on it because that was his own view, is sufficient alone to ground the complaint that the Agreement and the Policy have not been complied. Further, the Applicant submitted that on the Respondent's evidence, it is clear that a determination has in fact already been made.
[46] The Applicant submitted that the Agreement has not been complied with, and the Respondent is prevented from taking disciplinary action as foreshadowed, or at all. The Applicant submitted that the Commission should issue an order to that effect.
[47] I have taken into account all of the submissions and evidence that have been provided by the parties.
"[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:
1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the 'parties' to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are 'covered by' such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement 'with the employees who are employed at the time the agreement is made and who will be covered by the agreement'. Section 182(1) provides that an agreement is 'made' if the employees to be covered by the agreement 'have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement'. This is so because an enterprise agreement is 'made' when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties' intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding."
[49] I agree with the submissions of the Applicant that this decision does not involve any consideration as to the alleged serious misconduct of the Applicant or the appropriateness, or otherwise, of the action, or proposed action, of the Respondent. The question to be determined is whether the Respondent has undertaken its investigation of the Applicant in accordance with the provisions of the Agreement.
[50] Adopting the Berri Principles, it is necessary to interpret the provisions of the Agreement using the ordinary meaning of the words in the Agreement. Further, a recent Full Bench decision in Construction, Forestry, and Maritime Employees Union v Sydney International Container Terminals Pty Limited trading as Hutchinson Ports Australia [2026] FWCFB 44, confirmed the generally understood principle that a clause in an enterprise agreement which specifically refers to another document, results in that document being incorporated into the enterprise agreement:
"[30] Terms which have been incorporated by reference will generally only be displaced if they are inconsistent or insensible when read with the expressly agreed terms of the instrument. The incorporated terms will generally be given operation so long as the terms are capable of being sensibly read together with the express terms as a whole."
I am satisfied that the Policy can operate sensibly inside the provisions of the Agreement. Based on the plain English meaning of the words in the first sentence of clause 51.1 of the Agreement, I am satisfied and find that the Policy has been incorporated into the Agreement. The Respondent must, therefore, follow the relevant provisions of the Policy.
[51] Clause 6 of the Policy (see paragraph [23] of this decision) is also required to be interpreted in accordance with the Berri Principles. The basic reason for a Policy of this nature to be in existence is to ensure that an employee is afforded procedural fairness, a proposition, I note, which was endorsed by both parties. However, it is not possible for a policy to be so descriptive so as to cover every possible employment scenario. The Policy is silent on a scenario such as the one presently before the Commission. The accusation against the Applicant is in relation to alleged timekeeping irregularities. The simple fact is that the Applicant's Manager may be complicit in condoning these alleged irregularities on the basis that she approved the Applicant's submitted timesheets. If the Applicant's behaviour is proven to be serious misconduct, the Respondent will obviously and appropriately then have questions for the Applicant's Manager as to why the Applicant's timesheets were approved. It is not in dispute that the General Secretary was the individual who raised concerns about the Applicant's attendance and asked the Assistant Secretary to conduct an investigation. I am satisfied and find that the actions of the General Secretary were appropriate and conformed with the Policy. There has been no breach of procedural fairness in relation to this provision of the Policy.
[52] After accessing what appears to be all of the electronic information captured by the Respondent's systems, the Assistant Secretary then put a detailed and specific series of allegations to the Applicant, to which she provided a comprehensive response. The Applicant's basic premise is that the ongoing investigation should have been conducted by an independent person, as per the Policy, once the allegations had been put to her on 23 October 2025. I agree with the Applicant in this regard. The Applicant was not provided with the requisite procedural fairness by having the Assistant Secretary investigate the circumstances of the General Secretary's concerns, formulate a list of allegations based on that investigation and then make a recommendation to the General Secretary based on the responses of the Applicant.
[53] I am also satisfied that the Applicant knew that she could have a union representative present during the investigation and that she was offered that opportunity by the Assistant Secretary in his correspondence of 23 October 2025. The Applicant is an experienced Union Official of some 30 years' experience. To suggest that the Applicant was unaware of her rights in relation to union representation is ridiculous. I note that the Applicant's husband was her support person, who also happens to be a senior official of the Union. Further, the correspondence makes clear the availability of this representation. The fact that the offer was identified by the Assistant Secretary rather than the General Secretary is of little consequence. The provisions of procedural fairness have been satisfied in relation to this issue.
[54] In relation to clause 6 of the Policy as extracted at paragraph [23] of this decision, put simply, the Respondent has conflated two of the steps in the process by having the Assistant Secretary act as the Applicant's manager and also act as the independent investigator. As a result, the process lacks the required procedural fairness, so the application must succeed.
[55] Based on my earlier finding, it is not necessary for me to determine whether the General Secretary has formed a definitive view of the outcome for the Applicant. I have no reason to not believe the General Secretary. He was a reliable and credible witness who answered all questions honestly, even to the detriment of the Respondent's case.
[56] I am satisfied and find that the Policy has been incorporated into the Agreement by clause 51 of the Agreement. Further, I have adopted the general legal principle that a specific provision of an agreement, policy or statute is to be given preference to that of a general provision.
[57] I accept the proposition from the Respondent that "not every non-compliance with a process will result in invalidity". In this regard, I am satisfied and find that the non-compliance by the Respondent in relation to the non-involvement of the Applicant's Manager at the start of the process and the lack of notification by the General Secretary of the right to union representation, does not invalidate the process because the Applicant's right to procedural fairness has not been compromised.
[58] However, the lack of procedural fairness in relation to the assessment stage of the investigation is so significant that it renders the show cause process invalid. There is no doubt that the Assistant Secretary has undertaken a monumental amount of work in assessing the electronic records of the Respondent in formulating the allegations. At that point, based on the Policy, the Assistant Secretary should have ceased his involvement in the process and an independent third party should have assessed the Applicant's responses to the allegations. Whilst I disagree with Mr Neilson's submission that the Assistant Secretary acted as a judge, jury and executioner, I am prepared to concur with the submission that the Assistant Secretary formed views and a recommendation about his own allegations. I am satisfied and find that such a process does not comply with the provisions of the Policy, the Agreement or the basic premise of procedural fairness.
[59] I do not accept the submission that the Respondent should be prevented from continuing with the investigation against the Applicant. The Applicant is facing serious allegations of timekeeping fraud that she vigorously refutes. The General Secretary has an obligation to the members of the Union to ensure that the investigation is concluded in order to either discipline the Applicant or to exonerate her.
[60] I am satisfied that the process adopted by the Respondent is in accordance with its Policy and Agreement up to the point where the Applicant has submitted her detailed response to the allegations.
[61] It is now necessary for the Respondent to pass the allegations (and the material used to formulate these allegations) and the Applicant's response to a third-party investigator if it wishes to conform with its obligations under the Agreement and continue with the investigation.
[62] For the reasons stated above, I am satisfied and find that the Respondent has failed to comply with its Agreement by asking the Applicant to Show Cause based on the investigations of the Assistant Secretary.
[1] Australian Meat Industry Employees Union v Golden Cockrel Pty Ltd [2014] FWCFB 7447, modified in AFMEPKIU v Berri Pty Ltd [2017] FWCFB 3005; CEPU v Cockburn Cement Limited and anor [2025] FWCFB 201.
[2] Application by JSC & RSC [2013] NSWSC 440 at [24].
[3] Annexure 'XT-1' at page 21 of the Hearing Book.
[4] Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union [2016] FCAFC 122.
Printed by authority of the Commonwealth Government Printer
Xanthe Thomson
Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales T/A Public Service Association of New South Wales [2026] FWC 632