Fair Work Commission

Proposed 3-day cooling off period for unfair dismissal conciliations

Trial

In October and November 2012 the Fair Work Commission trialled a 3-day cooling off period in unfair dismissal conciliation conferences. The cooling off period was intended to give unrepresented parties a chance to seek advice and discuss the proposed settlement with friends and family.

Evaluation

The RMIT Centre for Innovative Justice (CIJ) has evaluated the trial, and their report is available below. In the course of their evaluation the CIJ considered data provided by the Commission, including:

• the decrease in the number of complaints received during the trial period
• feedback from the parties, and
• feedback from conciliators.

Recommendation

The CIJ recommends that a 'formalised cooling off period continue to be made available to unrepresented parties in conciliations of applications for Unfair Dismissal remedies at the Commission' and that 'the procedure continue to be monitored to ensure that it is achieving the Commission’s objective of increasing access to justice.'

Action

From 19 March 2013, a cooling off period of 3 business days will be offered to all parties participating in an unfair dismissal conciliation conference where:

• one party is unrepresented, and
• the conciliation is conducted by a conciliator.

The cooling off period can be waived by the parties at their request. If any party wishes to withdraw from a settlement reached at conciliation they should notify the Commission during the cooling off period (3 business days following the conciliation conference).

Examining the conciliation process for unfair dismissal applications

On 19 November 2010 Fair Work Australia (now the Fair Work Commission) released the findings of independent research commissioned to examine the conciliation process for unfair dismissal applications introduced from 1 July 2009.

The research examined the experiences of applicants, respondents and their representatives with the tribunal's administration of unfair dismissal applications, from the making of an application through to the conclusion of the new conciliation process conducted by Fair Work Australia employed conciliators.