Fair Work Commission

Introduction

Commencement date

1. This practice note commences on 1 August 2019 and replaces practice note No.1/2016.

Application

2. This practice note applies to orders for a person to attend proceedings in the Fair Work Commission and orders for a person to produce documents to the Commission.
3. The purpose of this practice note is to provide a general explanation of the usual processes for requesting, making and giving effect to orders to attend and orders to produce. It does not bind the Commission.
4. This practice note should be read together with the Fair Hearings Practice Note.

Definitions

5. In this practice note:

   Act means the Fair Work Act 2009

   Commission or FWC means the Fair Work Commission

   conference means a proceeding in relation to a matter before the Commission that is generally held in private, unless otherwise directed by the Commission, and is less formal than a hearing

   decision means a decision, order, determination or other directional ruling made by a Commission Member

   document includes records and other information

   hearing means a proceeding before the Commission to allow the parties to present their evidence and submissions in relation to a matter

   main matter means the matter before the Commission that a request for an order relates to

   matter means an application or other proceeding before the Commission

   Member means a Member of the Commission, such as the President, a Vice President, a Deputy President or a Commissioner

   order to attend means an order of the Commission requiring a person to attend a conference or hearing

   order to produce means an order of the Commission requiring a person to produce documents

   party means an applicant, respondent or another person or organisation involved in a matter before the Commission

   Rules means the Fair Work Commission Rules 2013

   service of a document means giving a copy of the document to a person or organisation. A document can be served in a number of ways, including by email, fax, express or registered post, or in person. Parts 7 and 8 of the Rules deal with service.

   set aside an order means to cancel or override the order. If an order is set aside by a Member the parties will not be required to comply with the terms of that order.

   sworn evidence means evidence provided under oath or affirmation.

6. A word or term used in this practice note has the same meaning as defined in the Act or as defined in the Acts Interpretation Act 1901 as at 25 June 2009.

Legislation – powers of the Commission to inform itself

7. Section 590 of the Act provides for the manner in which the Commission may inform itself in relation to any matter before it:
    

   Part 5-1—The Fair Work Commission

   Division 3—Conduct of matters before the FWC

   Subdivision B—Conduct of matters before the FWC

   590 Powers of the FWC to inform itself

   1. The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.
   2. Without limiting subsection (1), the FWC may inform itself in the following ways:
      
      1. by requiring a person to attend before the FWC;
      2. by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;
      3. by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;
      4. by taking evidence under oath or affirmation in accordance with the regulations (if any);
      5. by requiring an FWC Member, a Full Bench or Expert Panel to prepare a report;
      6. by conducting inquiries;
      7. by undertaking or commissioning research;
      8. by conducting a conference (see section 592);
      9. by holding a hearing (see section 593).

8. Rules 53 and 54 of the Rules provide for orders to attend and orders to produce respectively:
    

   53 Order for witness to attend

   1. A party in a matter before the Commission may, by lodging a draft order, request that the Commission inform itself in relation to the matter by issuing an order requiring a person to attend before the Commission under subsection 590(2) of the Act.

      Note: The request must be in the approved form—see subrule 8(2).

   2. If the order is made, the party who requested the order must, as soon as practicable after the order is made, serve a signed copy of the order upon the person who is required to attend before the Commission and, unless the order has been published on the Commission’s website, upon every other party in the matter.

   54 Order for production of documents

   1. A party in a matter before the Commission may, by lodging a draft order, request that the Commission inform itself in relation to the matter by requiring a person to provide copies of documents or records, or provide any other information, under subsection 590(2) of the Act.

      Note: The request must be in the approved form—see subrule 8(2).

   2. If the order is made, the party who requested the order must, as soon as practicable after the order is made, serve a signed copy of the order upon the person who is required to produce the documents, records or other information and, unless the order has been published on the Commission’s website, upon every other party in the matter.
   3. The order may be satisfied by producing the documents, records or other information specified in the order to the General Manager or other employee of the Commission at the place specified in the order no later than 4 pm on the day before the day specified in the order for the provision of the documents, records or other information.

9. In addition to Rules 53 and 54 (above) Schedule 1 to the Rules includes instructions for service of an application for and order to attend (Form F51) and an application for an order to produce (Form F52).

Background

10. The Commission can make orders requiring a person to attend Commission proceedings and orders requiring a person to produce documents, so as to obtain information relevant to a matter before it. Orders to attend and orders to produce assist the Commission to make informed decisions based on reliable evidence and facilitate the efficient conduct of matters before the Commission.
11. Orders to attend or to produce can be made on request by a party to a matter (the requesting party) or by a Member on the Member’s own initiative. In either case, it is important that orders are drafted with as much precision as practicable so that the responding party knows what they have to do to comply with the order.
12. Orders to attend or to produce can be directed to other parties involved in a matter or to third parties such as witnesses who can give evidence about a relevant event or who are in possession of relevant documents.
13. A person to whom an order to attend or to produce applies must comply with the order. Pursuant to ss.675 and 677 of the Act, failure to comply with an order to attend or to produce is an offence which carries a maximum penalty of 12 months’ imprisonment. The Commission can also make adverse findings or adverse comments in published decisions based on a person's failure or refusal to comply with an order.

Orders to attend

Requesting an order to attend

14. An order to attend enables a party to require a person to attend a conference or hearing so as to participate in the proceedings and/or to give sworn evidence to the Commission.
15. A request for an order to attend must be made by lodging a Form F51 with the Commission. Form F51 can be downloaded from the Forms page of the Commission’s website. A party can make a request for orders to attend at any stage of a matter. However, there is generally an appropriate or logical time to make the request and a request for orders to attend may be declined if it is premature or too late. For example, in the context of an unfair dismissal application, such requests are ordinarily made in the weeks leading up to the hearing.
16. Form F51 contains a draft order which must be completed by the requesting party.
17. If the requesting party is seeking the attendance of more than one person, a separate draft order must be completed for each person and attached to the Form F51. An example of a completed draft order is at Attachment 1 to this practice note.
18. Unless the Commission has ordered otherwise, as soon as practicable after lodging the Form F51 with the Commission, a copy of the Form F51 including the draft order must be served on the person who is to be required to attend before the Commission and, unless the application has been published on the Commission’s website, every other party to the matter.
19. For major cases, the Commission may publish applications for orders to attend, and any such order it makes, on its website. Recognising that it may be onerous to require service on all interested parties in major cases, there is no requirement to serve a copy of the application or the order (if made) if it has been published on the Commission’s website.

Considering a request for an order to attend

20. When the Commission receives a request for an order to attend, the Member responsible for the main matter will decide whether or not to issue the order. In deciding whether or not to issue the order, the Member will consider whether attendance at the conference or hearing by the person to whom the order will apply will assist in the resolution of the main matter. The requesting party will be notified of the Member’s decision. Depending on the context of the request in relation to the main matter, the decision may or may not be in writing and may or may not be accompanied by written reasons - see s.601 of the Act.
21. If the conference or hearing at which the order requires attendance is adjourned, so that the date for attendance is changed, the requesting party must request the Commission to vary the order to reflect the new attendance date.

Serving the order

22. If the order is made it will be signed and sealed by the Member and returned to the requesting party. The requesting party must serve the order on the person to whom the order applies and, unless the order has been published on the Commission’s website, must also serve the order on the other parties to the matter. Service must be effected by the requesting party as soon as practicable after the order is made. Service is most commonly effected by email - i.e. the requesting party emails a PDF scan of the order to the responding party. Rule 42 of the Rules sets out the requirements for valid service.

Complying with or objecting to an order to attend

23. The order to attend will specify a time, date and place for attendance of the person to whom the order applies. The person must attend the conference or hearing as and when directed by the Commission.
24. A person required to attend to give evidence can be examined in chief or cross examined with the permission of the presiding Member, and may also be questioned by a Member to clarify the evidence given.
25. If a person is ordered to attend at a time or date that is not convenient, the person can ask the Commission to vary the order to allow him or her to attend at a different time or date. The Commission will consider such a request taking into account all of the circumstances. Most Commission premises have videoconferencing facilities that can be used to give evidence remotely. However, the default mode of giving evidence is by being physically present and requests to appear by videolink are considered on a case by case basis and are subject to the availability of equipment and resources.
26. A person ordered to attend or another person having a sufficient interest can request to have the order set aside or varied. This request must be made in writing addressed to the Member who made the order, must set out the reasons why the person is seeking to have the order set aside or varied, and must be served on the requesting party.
27. On receipt of a request to have an order set aside or varied, the Commission may list the matter for a conference or hearing, or may make a decision based on written submissions from the applicant and the requesting party.

Orders to produce

Requesting an order to produce

28. An order to produce enables a party to require a person (including a third party) to produce documents to the Commission. A person is only required to produce documents that are in their possession, custody or control. A person is not required to create documents to comply with an order to produce.
29. A request for an order to produce must be made by lodging a Form F52 with the Commission. Form F52 can be downloaded from the Forms page of the Commission’s website.
30. Form F52 contains a draft order which must be completed by the requesting party. An example of a completed draft order is at Attachment 2 to this practice note.
31. Documents that can be requested include material such as time and wages records, documents on a personnel file, a workplace policy or procedural documents, or CCTV footage. The documents must be specified with reasonable particularity and have an apparent relevance to issues in the main matter before the Commission (see Clermont Coal Pty Ltd v Brown [2015] FWCFB 2640 at [19]; APESMA v Airly Coal Pty Ltd PR962479 at [12]).
32. The draft order must be directed to a specified person who the requesting party believes has possession, custody or control of the material sought. Where the documents are held by a company or other organisation and it is not clear which individual has possession, custody or control, the draft order can be directed to the ‘Proper Officer’ of the company or organisation.
33. Unless the Commission has ordered otherwise, as soon as practicable after lodging the Form F51 with the Commission, a copy of the Form F51 including the draft order must be served upon the person who is to be required to produce documents to the Commission and, unless the application has been published on the Commission’s website, every other party to the matter.
34. For major cases, the Commission may publish applications for orders to produce, and any such order it makes, on its website. Recognising that it may be onerous to require service on all interested parties in major cases, there is no requirement to serve a copy of the application or the order (if made) if it has been published on the Commission’s website.

Considering a request for an order to produce

35. When considering whether to grant an order to produce, the Commission will consider the issues between the parties to the main matter and whether the documents sought have an apparent relevance to the issues (see Clermont Coal Pty Ltd v Brown [2015] FWCFB 2640 at [19]; APESMA v Airly Coal Pty Ltd PR962479 at [12]).
36. The Commission may grant the order as requested, grant the order in a varied form or refuse to grant the order. Prior to granting the order the Member may require the requesting party to provide reasons why the order is sought or conduct a hearing/conference to determine whether the order should be issued. The requesting party will be notified of the Member’s decision. Depending on the context of the request in relation to the main matter, the decision may or may not be in writing and may or may not be accompanied by reasons - see s.601 of the Act.

Serving the order

37. If the order is made it will be signed and sealed by the Member and returned to the requesting party. The requesting party must serve the order on the person to whom the order applies and, unless the order has been published on the Commission’s website, must also serve the order on the other parties to the matter. Service must be effected by the requesting party as soon as practicable after the order is made. Service is most commonly effected by email - i.e. the requesting party emails a PDF scan of the order to the responding party. Rule 42 of the Rules sets out the requirements for valid service.

Complying with or objecting to an order to produce

38. An order to produce will specify the time, date and location (usually the offices of the Commission) at which the documents must be produced to the Commission. Instead of attending and producing the documents at the specified time, the person to whom the order applies can also comply with the order by delivering the documents to the General Manager or an employee of the Commission at the specified location no later than 4pm the day before the date specified in the order.
39. The responding party can request to have the order set aside or varied. This request must be made in writing addressed to the Member who made the order, must set out the reasons why the person is seeking to have the order set aside or varied, and must be served on the requesting party.
40. The responding party may object to producing the documents on various grounds including that: they contain information which is confidential (see National Employers’ Mutual Insurance General Insurance Assoc v Waind and Hill (1978) 1 NSWLR 372 at 381; cited in APESMA v Airly Coal PR962479 at [13]), commercially sensitive or legally privileged; they are not relevant; producing the documents involves an unwarranted intrusion into the responding party's privacy (see Faulkner v BHP [2014] FWC 5134); the requesting party is on a “fishing expedition”; or because it would be too onerous or oppressive to comply with the order (see Clerks (Alcoa) Case (H2892)).
41. On receipt of a request to have an order set aside or varied, the Commission may list the matter for a conference or hearing, or may make a decision based on written submissions from the responding party and the requesting party.

Inspection of documents produced

42. When documents have been produced to the Commission in compliance with an order to produce, a party may, with the approval of the Commission, inspect and copy the documents athe Commission's offices. This can be done by contacting the Chambers of the Member who issued the order for production. The Commission will notify all parties to the matter when documents are produced.
43. Objections to inspection and copying of the documents may be made for various reasons including that the documents are confidential. The Commission may call the matter on for a hearing or conference to deal with any objection(s).
44. The documents that are produced cannot be removed from the Commission’s offices. The documents can be copied by the Commission upon request, but the Commission will charge for doing so.
45. Documents produced in compliance with an order to produce must only be used for the purpose of conducting the relevant matter in the Commission. They cannot be used for any other purpose, except with the written authorisation of the Commission.

Attachment 1–F51–Example of completed draft order to attend

Attachment 2–F52–Example of completed draft order to produce documents