Question 1

What do I need to consider if I am giving evidence to the Fair Work Commission?

Accepted Answer

Introduction
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]

Self-incrimination
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 on 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.

Case example
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, 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.

References and citations
[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 (https://www.fwc.gov.au/documents/resources/MemberCodeConduct.pdf)(1 March 2013), at p. 2.
[4] ibid.
[5] Fair Work Act s.677(3).
[6] Fair Work Act s.677(4).
[7] Sorby v Commonwealth [1983] HCA 10  (18 March 1983) at para. 11, [(1983) 152 CLR 281].
[8] Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9  (18 March 1983), [(1983) 152 CLR 328]; Police Service Board v Morris [1985] HCA 9  (27 February 1985), [(1985) 156 CLR 397]; Valantine v Technical and Further Education Commission [2007] NSWCA 208  (20 August 2007); but cf. Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49  (7 November 2002) at para. 31, [(2002) 213 CLR 543]; Rich v Australian Securities and Investments Commission [2004] HCA 42  (9 September 2004) at para. 24, [(2004) 220 CLR 129]; Migration Agents Registration Authority v Frugtniet [2018] FCAFC 5  (30 January 2018).
[9] Visy Board Pty Ltd T/A Visy Board v Rustemovski and Ahmadyar [2018] FWCFB 1255 (Ross J, Binet DP, Platt C, 5 March 2018).
[10] McMahon v Gould (1982) 7 ACLR 202 (19 February 1982). (1982) 7 ACLR 202 (19 February 1982).
[11] Visy Board Pty Ltd T/A Visy Board v Rustemovski and Ahmadyar [2018] FWCFB 1255 (Ross J, Binet DP, Platt C, 5 March 2018) at para. 49.

Question 2

What does "without prejudice" mean?

Accepted Answer

The principle underlying a "without prejudice" meeting is to create a space where both parties can engage in candid, open discussions aimed at resolving an existing dispute.

The objective is to facilitate negotiations without the risk that statements made during the conversation will be used against either party in subsequent legal proceedings.

Therefore, both parties are generally encouraged to speak freely, offer concessions, and explore potential solutions.

Recording a "without prejudice" meeting seems incongruent with this principle for several reasons:

1. Chilling Effect on Open Discussion: The knowledge that the meeting is being recorded may discourage parties from being fully candid. This can impede the free flow of dialogue, which is essential for resolving disputes.

2. Integrity of the 'Without Prejudice' Principle: Recording the meeting could raise questions about the commitment to keeping the conversation non-admissible in court. This could jeopardize the very protection that the "without prejudice" label is intended to provide.

3. Data Protection Concerns: Recording conversations may implicate data protection regulations, requiring explicit consent from both parties and a stated purpose for collecting such data. Failure to adhere to these regulations could introduce additional legal complexities.

4. Perceived Imbalance of Power: In an employment setting, if the employer initiates the recording without mutual agreement, this could create a perception of power imbalance, potentially impacting the employee's willingness to participate genuinely in the discussion.

5. Undermining Trust: Trust is a critical component in any negotiation, and the act of recording may be perceived as a lack of trust, which could in turn affect the quality and outcome of the dialogue.

Given the delicate nature of these discussions and the legal protections they are intended to provide, recording a "without prejudice" meeting generally appears inconsistent with its purpose.

If any party feels that a record of the meeting is necessary, this should be agreed upon explicitly, preferably in writing, prior to the meeting, and both parties should be clear on how the recording will be used or stored. Nonetheless, legal consultation is often advisable to ensure that the principles and protections of a "without prejudice" conversation are fully understood and upheld by all involved.

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