Onus of proof in Fair Work Commission cases

“Second, it is doubtful how far the notion of onus of proof is relevant at all to Commission proceedings, 41 as Woodward J observed in McDonald v Director – General of Social Security, 42 in respect of administrative tribunals, generally: ‘The first point to be made is that the onus (or burden) of proof is a common law concept, developed with some difficulty over many years, to provide answers to certain practical problems of litigation between parties in a court of law. One of the chief difficulties of the concept has been the necessity to distinguish between its so-called “legal” and “evidential” aspects. The concept is concerned with matters such as the order of presentation of evidence and the decision a court should give when it is left in a state of uncertainty by the evidence on a particular issue. The use outside courts of law of the legal rules governing this part of the law of evidence should be approached with great caution. This is particularly true of an administrative tribunal which, by its statute “is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate” Such a tribunal will still have to determine practical problems such as the sequence of receiving evidence and what to do if it is unable to reach a clear conclusion on an issue, but it is more likely to find the answer to such questions in the statutes under which it is operating, or in considerations of natural justice or common sense, than in the technical rules relating to onus of proof developed by the courts. However these may be of assistance in some cases where the legislation is silent.’”


4 yearly review of modern awards – Penalty Rates – Transitional Arrangements (2017) FWCB 3001 delivered 5 June 2017 per Ross J, Catanzariti VP, Asbury DP, Hampton C and Lee C