See Fair Work Act ss.590 and 591
Section 590 of the Fair Work Act 2009 outlines the ways in which the Fair Work Commission may inform itself including:
- 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
- by conducting inquiries or undertaking research, or
- by 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 if that would cause unfairness between the parties.
Because of the legal principle that the strength of the evidence necessary to establish an alleged fact on the balance of probabilities will be greater where the allegation is serious in nature, or is inherently unlikely or may, if established, lead to grave consequences; the Commission is more likely to apply the rules of evidence, or the principles underlying those rules, in that situation.
Even where the rules of evidence are not applied, any conclusion of fact by the Commission must have a basis in ‘evidence having rational probative force’. Such a conclusion may not be based on no information at all, or upon information which cannot reasonably support that conclusion.
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.
The rules of evidence ‘provide general guidance as to the manner in which the Commission chooses to inform itself’.