See Fair Work Act ss.590 and 591
Section 590 of the Fair Work Act 2009 (the Fair Work Act) outlines the ways in which the Fair Work Commission may inform itself including by:
Section 591 of the Fair Work Act states that the Commission is not bound by the rules of evidence and procedure (whether or not the Commission holds a hearing).
Although the Commission is not bound by the rules of evidence, they are relevant and cannot be ignored where it would cause unfairness between the parties.
The rules of evidence ‘provide general guidance as to the manner in which the Commission chooses to inform itself’.
Commission members are expected to act judicially and in accordance with ‘notions of procedural fairness and impartiality’.
Commission members are ultimately expected to get to the heart of the matter as quickly and effectively as possible, without unnecessary technicality or formality.
A person may be required by the Commission to attend before the Commission and answer a question or produce specific documents. Where a person refuses or fails to answer the question or produce the documents they commit an offence with a penalty of imprisonment.
Where a person has a reasonable excuse not to answer the question or provide the document, they are not required to do so.
A person, including a witness, has a privilege against self incrimination and this could provide a reasonable excuse. That is, a person is not required to answer a question or provide a document if they believe that the evidence they will provide will tend to incriminate them. This means that if they believe on reasonable grounds that their evidence will tend to prove that they have committed an offence, they are not required to answer that question where there is a ‘real and appreciable danger of conviction’.
The same may apply in respect to a risk of exposure to a civil penalty. The Commission will not draw an adverse inference from the failure to provide that evidence. This means that the Commission cannot assume that the witness did not provide the evidence or the document solely on the basis that it would have harmed their case before the Commission.
However, the Commission will need to determine the application based upon the evidence that is before it. This means that a determination will be made in the matter without the evidence the witness would otherwise be providing if they had not relied on the privilege against self incrimination.
Whether a matter before the Commission will be adjourned or otherwise delayed because one or more witnesses may assert a privilege against self incrimination was considered by a Full Bench of the Commission in Visy Board Pty Ltd T/A Visy Board v Rustemovski and Ahmadyar. The Full Bench confirmed that McMahon v Gould sets down non-exhaustive guidelines and that it is necessary for the Commission to determine what justice requires in the circumstances.
A corporate entity does not have a privilege against self incrimination.
Re Construction, Forestry, Mining and Energy UnionPR935310 (AIRC, Ross VP, 25 July 2003) at para. 36.
Australasian Meat Industry Employees’ Union, The v Dardanup Butchering Company Pty Ltd  FWAFB 3847 (Lawler VP, Hamberger SDP, Gay C, 17 June 2011) at para. 28, [(2011) 209 IR 1]; citing Hail Creek Coal Pty Ltd v Construction, Forestry, Mining and Energy Union PR948938 (AIRCFB, Ross VP, Duncan SDP, Bacon C, 12 July 2004) at paras 47 – 50, [(2004) 143 IR 354].
Coal & Allied Mining Services Pty Ltd v Lawler  FCAFC 54 (19 April 2011) at para. 25, [(2011) 192 FCR 78]; Fair Work Commission Member Code of Conduct (1 March 2013), at p. 2.
 Fair Work Act s.677(3).
 Fair Work Act s.677(4).
Pyneboard Pty Ltd v Trade Practices Commission  HCA 9 (18 March 1983), [(1983) 152 CLR 328]; Police Service Board v Morris  HCA 9 (27 February 1985), [(1985) 156 CLR 397]; Valantine v Technical and Further Education Commission  NSWCA 208 (20 August 2007); but cf. Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission  HCA 49 (7 November 2002) at para. 31, [(2002) 213 CLR 543]; Rich v Australian Securities and Investments Commission  HCA 42 (9 September 2004) at para. 24, [(2004) 220 CLR 129]; Migration Agents Registration Authority v Frugtniet  FCAFC 5 (30 January 2018).
 (1982) 7 ACLR 202 (19 February 1982).
Visy Board Pty Ltd T/A Visy Board v Rustemovski and Ahmadyar  FWCFB 1255 (Ross J, Binet DP, Platt C, 5 March 2018) at para. 49.