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Evidence
Table of contents
Introduction
See Fair Work Act 2009 ss.590 and 591
Section 590 of 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 doing so 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]
Orders to attend and orders for production of documents
See Fair Work Act s.590, Fair Work Commission Rules 2013 rules 53 and 54
The Commission can order a person to attend Commission proceedings or order a person to produce documents, so as to obtain information relevant to a matter before it. Orders to produce assist the Commission to make informed decisions based on reliable evidence and facilitate efficient conduct of matters before the Commission.
An application for an order to attend can be made by lodging a completed and signed Form F51 – Application for an order requiring a person to attend Fair Work Commission.
An application for an order to produce documents can be made by lodging a completed and signed Form F52 – Application for an order requiring production of documents etc to Fair Work Commission.
The Practice note: Orders to attend & orders to produce provides a general explanation of the usual process for requesting, making and giving effect to orders to attend and orders to produce.
Links to application forms
- Form F51 – Application for an order requiring a person to attend before the Commission
- Form F52 – Application for an order for production of documents, records or information to the Commission
All forms are available on the Forms page of the Commission’s website.
References
[1] Re Construction, Forestry, Mining and Energy Union PR935310 (AIRC, Ross VP, 25 July 2003) at para. 36.
[2] Australasian Meat Industry Employees’ Union, The v Dardanup Butchering Company Pty Ltd [2011] 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].
[3] Coal & Allied Mining Services Pty Ltd v Lawler [2011] 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.
[4] ibid.
Updated time
Last updated
15 September 2020
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