Fair work cases and the rules of evidence

Although the rules of evidence in fair work cases which come before the Fair Work Commission are much less technical and forensic than the rules of evidence applied in Australian Courts, there are nonetheless minimum requirements which must be met by parties pursuing case s which if not followed can doom a case.

“Award Coverage

[26] Section 48 of the Act sets out when a modern award applies and relevantly states:

“When a modern award covers an employer, employee, organisation or outworker entity

(1) A modern award covers an employee, employer, organisation or outworker entity if the award is expressed to cover the employee, employer, organisation or outworker entity”.

[27] Ms Herc contended that one of three Awards could cover her, being:

  1. Australian Government Industry Award 2016;
  2. Clerks Private Sector Award 2020; or
  3. Miscellaneous Award 2020.

[28] The Respondent submits that no Award covers the work performed by Ms Herc.

[29] Determination of whether an Award covers an employee for the purposes of s.382(b)(i) of the Act involves an assessment of “the nature of the work and the circumstances in which the employee is employed to do the work”  3.

[30] There are a number of factors which may be taken into account in undertaking a principal purpose assessment, none of which are singularly determinative. In Tucker v Digital Diagnostic Imaging 4, the Commission opined that factors relevant to determining whether the duties of the applicant in that case aligned to the description provided in the Award for the included:

“•  the contents of any job description, person specification or job advertisement

  • the level of remuneration assessed against award levels of remuneration and also considered in the context of remuneration levels within the employing organisation
  • the actual time occupied in different duties (a substantive role/function analysis)
  • the status and level of the position occupied within the organisational structure
  • possession or absence of particular qualifications and whether such qualifications are necessary to the exercise of the primary functions that are performed
  • the exercise of authority and direction over others including in particular, the extent of such authority
  • the level of importance and relevance of particular duties in the context of the employing organisation’s overall purpose
  • the level of decision-making capacity in the context of the employing organisation’s overall operation
  • the nature and extent of any role as representative of the employing organisation to third parties”. 5

[31] In this case, it is not possible to assess any of these factors given Ms Herc did not file any evidence or material that detailed the work she performed. The lack of evidence was raised both in the submissions filed by Hays and by the Commission during the hearing. The only document relied upon by Ms Herc in this regard was a document setting out the conditions of her assignment, which confirmed her position as a Project Manager, located at Campbell Park, and with a pay rate of $104.50 per hour. This document is insufficient to make any assessment of the factors set out above, and there is no suggestion in any of the material filed by either party that Ms Herc was covered by any award.

[32] Based on the limited material available, I am unable to find that Ms Herc was covered by a modern award.


[33] For the reasons set out above, I find that Ms Herc earned more than the high income threshold and is not covered by a modern award for the purpose of s.382(b)(i) of the Act and accordingly is not a person protected from unfair dismissal. As a result, I dismiss this application.

[34] An order to this effect will be issued with this decision.”

Herc v Hays Recruitment (2022) FWC 1997 2 August 2022 per Dean DP