Evidence

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:

• requiring a person to attend the Commission
• requiring written and oral submissions
• requiring a person to provide copies of documents
• taking evidence under oath or affirmation
• conducting inquiries or undertaking research, or
• holding a conference or a hearing.

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.[1]

The rules of evidence ‘provide general guidance as to the manner in which the Commission chooses to inform itself’.[2]

Commission members are expected to act judicially and in accordance with ‘notions of procedural fairness and impartiality’.[3]

Commission members are ultimately expected to get to the heart of the matter as quickly and effectively as possible, without unnecessary technicality or formality.[4]

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.[5]

Where a person has a reasonable excuse not to answer the question or provide the document, they are not required to do so.[6]

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’.[7]

The same may apply in respect to a risk of exposure to a civil penalty.[8] 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.[9] The Full Bench confirmed that McMahon v Gould[10] sets down non-exhaustive guidelines and that it is necessary for the Commission to determine what justice requires in the circumstances.[11]

A corporate entity does not have a privilege against self incrimination.

Following rules of evidence – employer used illegally obtained evidence for allegation of theft

Walker v Mittagong Sands Pty Ltd T/A Cowra Quartz

[2010] FWA 9440 (Thatcher C, 8 December 2010).

Facts
The employee was accused of stealing oil from the employer. After becoming suspicious that the theft had occurred, the employer searched for and took samples of oil from the employee’s vehicle without the employee’s authority in order to have it tested.

Outcome
It was held that the evidence of the sample was unlawfully obtained and that the evidence should not be admitted.

Relevance
Privacy in the workplace is an important issue. Security checks of bags, parcels, lockers and the like (including containers in personal vehicles) should not take place unless the employee concerned is present, or alternatively, that the employee has given permission for such a search to take place in his or her absence. An employee should be able to have a union delegate or another nominated employee of the employee’s choice present during the search.