Fair Work Act 2009
s.156 - 4 yearly review of modern awards

[1] At the conclusion of the hearing before us on 24 March 2016 in relation to the common claims, the Australian Council of Trade Unions (ACTU) tendered the witness statements of Ms Jacquie Dredge and Mr Marian Brkic dated 9 October 2015 and 1 September 2015 respectively. This was opposed by the Australian Industry Group (Ai Group), the Australian Chamber of Commerce and Industry (ACCI) and the Recruitment and Consulting Services Association (RCSA). As foreshadowed to the parties at the hearing on 24 March 2016 this issue would be determined by the Full Bench. The Full Bench will determine these matters in this decision.

[2] The circumstances of the tender were as follows. The ACTU lodged the witness statements of Ms Dredge and Mr Brkic prior to the commencement of the hearing in accordance with the Commission’s directions. On 9 March 2016 the Commission published on its website a ‘Working Witness List’ document outlining a schedule of witnesses to be called for cross-examination on each day of the proceedings. At the request of the ACTU, the Commission issued orders on 10 March 2016 pursuant to s.590(2)(a) of the Fair Work Act 2009 (FW Act) requiring four of the ACTU’s witnesses, including Mr Brkic, to attend the Commission to give evidence. The order directed Mr Brkic to attend the Commission’s premises in Melbourne at 10.00am on Tuesday 15 March 2016. Ms Dredge was scheduled to give evidence on the same day, but no order was sought or issued for her attendance.

[3] Both Mr Brkic and Ms Dredge failed to attend the hearing on 15 March 2016. At the hearing the ACTU advised that Mr Brkic was unable to attend due to its failure to serve the F51 order on the witness and sought for the order to be amended such that Mr Brkic was required to attend the Commission’s premises in Melbourne at 2.00pm on Friday 18 March 2016. 1 The ACTU also sought that an order be issued for Ms Dredge requiring her to attend the Commission’s premises in Sydney on the same day,2 and an order to that effect was issued by the Commission that afternoon.

[4] Despite the orders for attendance issued by the Commission Mr Brkic and Ms Dredge did not attend the hearing on 18 March 2016. The parties were unable to agree upon any consensual basis for the admission of their statements in whole or part. Accordingly the ACTU formally tendered them, and the objections to the tender were heard by us.

[5] The contents of the statements are obviously hearsay. The ACTU submitted that although, under s.591 of the FW Act, the Commission was not bound by the rules of evidence, even if those rules were strictly applied the statements of the witnesses were admissible under the exception to the rule against hearsay (embodied in s.63 of the Evidence Act 1995 (Cth)) whereby a document containing a representation may be admitted in a civil proceeding if the person who made the representation was not available to give evidence about the facts asserted in the representation. Ms Dredge and Mr Brkic were “not available to give evidence” because, having regard to the meaning assigned to that expression in the Dictionary to the Evidence Act, all reasonable steps had been taken by the ACTU to compel them to give evidence, but without success. 3

[6] We accept that Ms Dredge and Mr Brkic were unavailable to give evidence in this sense, and that applying the rules of evidence their statements would be admissible under an exception to the rule against hearsay. However it does not follow that the statements must be admitted. We are not bound by the rules of evidence and, in any event, even if the rules are applied here we have a discretion to refuse to admit the evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party or be misleading or confusing or cause or result in undue waste of time. 4

[7] The evidence contained in Mr Brkic’s statement concerned his experience working as a casual with a business named Westend Pallets Pty Ltd. Two other witnesses called by the ACTU have already given evidence about their employment as casuals with this business, and Mr Brkic’s evidence was, broadly speaking, of the same tenor. In addition the statement contained some serious allegations about the conduct of Westend Pallets’ management. Mr Ferguson on behalf of Ai Group submitted that, although his organisation did not represent Westend Pallets, he had intended to test the contents of Mr Brkic’s statement in cross-examination had he attended to give evidence. In those circumstances, we consider that the limited probative value of the statement is substantially outweighed by the danger that it may be unfairly prejudicial to Westend Pallets, given the serious untested allegations involved, and may result in undue waste of time since it is otherwise largely repetitive of evidence already given by other witnesses. For similar reasons, we also consider that admission of the statement would not be consistent with the Commission’s obligation under s.577(a) to be fair and just in the performance of its functions.

[8] Ms Dredge’s witness statement contains a detailed account of her employment as a casual disability support worker with CatholicCare. In broad terms it characterises that work as irregular and insecure, and describes the personal detriment associated with work of that nature. Mr Ward, who appeared for ACCI, submitted that he had discussed in detail the contents of the statement with CatholicCare, and had intended to cross-examine Ms Dredge both in relation to the contents of the statement and other matters pertaining to ACCI’s overall case. Having regard to these matters, we consider that the limited probative value of the statement is substantially outweighed by the danger that it may be unfairly prejudicial to CatholicCare, which has been denied the opportunity to test the evidence via cross-examination by ACCI. Again, for similar reasons, we also consider that admission of the statement would not be consistent with the Commission’s obligation under s.577(a) to be fair and just in the performance of its functions.

[9] The tender of the witness statements of Ms Jacquie Dredge and Mr Marian Brkic is therefore rejected.

VICE PRESIDENT

 1   Transcript 15 March 2016, PNs 2551 - 2555

 2   Transcript 15 March 2016, PNs 2539 - 2549

 3   Clause 4(1)(g) of the Dictionary to the Evidence Act

 4   Evidence Act, s.135

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