Fair Work Commission

Overview

See Fair Work Act 2009 s.590 and s.591

Section 590 of the Fair Work Act provides 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 to the extent that it causes unfairness between the parties.^[1]

Commission members are expected to act judicially and in accordance with 'notions of procedural fairness and impartiality'.^[2]

Commission members are ultimately expected to get to the heart of the matter as quickly and effectively as possible, without unnecessary technicality or formality.^[3]

The rules of evidence 'provide general guidance as to the manner in which the Commission chooses to inform itself'.^[4]

Case example

False or misleading evidence

See Fair Work Act s.678

Giving false or misleading evidence

A person (the witness) commits an offence if:

• the witness gives sworn or affirmed evidence, and
• the witness gives the evidence as a witness:
  • in a matter before the Commission, or
  • before a person taking evidence on behalf of the Commission for use in a matter that the witness will start by application to the Commission; and
• the evidence is false or misleading.^[5]

Inducing or coercing another person to give false or misleading evidence

A person (the offender) commits an offence if:

• another person (the witness) has been, or will be, required to appear as a witness in a matter before the Commission (whether the person is to appear before the Commission or a delegate of the Commission), and
• the offender induces, threatens or intimidates the witness to give false or misleading evidence in the matter.

References

^[1] Re: Construction, Forestry, Mining and Energy Union, PR935310 (AIRC, Ross VP, 25 July 2003) at para. 36.

^[2] Coal and Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78 [25]; Fair Work Commission, Member Code of Conduct (1 March 2013) 2.

^[3] ibid.

^[4] Australasian Meat Industry Employees' Union, The v Dardanup Butchering Company Pty Ltd (2011) 209 IR 1 [28]; citing Hail Creek Coal Pty Ltd v Construction, Forestry, Mining and Energy Union(2004) 143 IR 354 [47]‒[50].