Evidence

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]

Following rules of evidence

Employer used illegally obtained evidence for allegation of theft

Walker v Mittagong Sands Pty Limited T/A Cowra Quartz [2010] FWA 9440 (Thatcher C, 8 December 2010).

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

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.