Conciliation is a voluntary process to help an employer and employee resolve an unfair dismissal dispute. It is an informal method of resolving the claim that is generally conducted by telephone and can avoid the need for a formal conference or hearing.
If you choose not to have a conciliation, or you have a conciliation that fails to produce a settlement, the case will automatically go to a hearing or conference unless the employee formally discontinues their application.
Because it is conducted by telephone you do not need to come to the Fair Work Commission offices.
Conciliation is an informal, private and generally confidential process where a Commission Conciliator helps employees and employers to resolve an unfair dismissal application. The conciliator is independent and does not take sides, but works to bring the parties to an agreed resolution. In conciliation, each party can negotiate in an informal manner and explore the possibility of reaching an agreed settlement. Any outcome is possible if both parties agree to it. This is different from a hearing, where the outcomes are limited and strictly controlled by law.
You are under no obligation to agree to a settlement if you don’t want to. It is your right to maintain your position and proceed to a hearing. But it is in your interests to try conciliation as they are often successful, with 4 out of 5 matters settling at this stage. A settlement can avoid the time delays and costs of having a formal hearing.
Unrepresented parties are offered a 3-day cooling off period following conciliation to decide if they wish to opt out of any agreed settlement.
Conciliators are highly experienced and have conducted a large number of conciliations. They will manage the process for you and guide you through the conciliation. But there are things you can do to ensure the process runs smoothly and you make the most of this opportunity:
1. Be available on the scheduled date
Ensure you are able to take part in the conciliation on the date scheduled. If you have a very good reason why you cannot participate at the scheduled time you can apply in writing to the Commission for an adjournment to a different time or date. An adjournment is not automatically granted – the Commission must consider that the grounds for the request are substantial.
2. Set aside time in a quiet place
A conciliation can take around 90 minutes to complete. It requires your complete attention, so you need to be in a quiet place where you can listen, speak openly and think without being disturbed. Many employees participate in the conciliation from home even if they have found another job, as the new workplace may not be a suitable location. Meanwhile employers are usually in their workplace. But if that workplace is noisy or filled with customers it will not be a suitable location and the employer should seek a more appropriate spot.
3. Be contactable at the scheduled time
Make sure you can be reached by phone at the time the conciliation is scheduled to take place. You should be available on the contact number you have listed in your application or response form. If it is a mobile phone ensure you are in an area where reception is strong and that your battery is fully charged. If your phone number has changed, please contact the Commission as soon as possible before the conciliation to make sure we can contact you on the day.
4. Have the paperwork in front of you
Both parties should have the employee’s application and employer’s response prior to the conciliation commencing. Both of those documents along with any payslips, letter of dismissal or other relevant documents should be in front of you so you can follow the discussions. It is also helpful to have a pen and paper for taking notes.
5. Know what outcomes you want to achieve or will accept
Employees should come to conciliation with a good idea of the outcomes they want to achieve. These may range from being allowed to resign instead of being dismissed to obtaining a reference to asking for compensation for lost wages. Employers should come to conciliation with a good idea of the outcomes they are prepared to consider.
6. Request an interpreter beforehand if needed
If you need an interpreter to allow you to take part in the conciliation please notify the Commission well beforehand so that one may be arranged for you. These requests cannot be accommodated on the day of the conciliation, which can lead to delays in the case being dealt with. Interpreters are supplied at no charge to employees and employers.
How the conciliation is conducted
Conciliations are usually held by telephone. The conciliator will be in their office at the Commission. The employer and employee can be in any location, provided it is quiet and they will not be disturbed. A conciliation can take around 90 minutes to complete.
The conciliator will call the parties and introduce them into a telephone conference call. Any representatives for either side will also be called if they are not in the room with the employee or employer. This can mean there are as many as 5 different people on the conference call.
The style of each conciliator may vary but, in general, a conciliation will include the following steps:
the conciliator explains their role and the manner in which the conciliation is to be run
each side briefly outlines their story including what happened, any relevant facts and what they want
the conciliator may allow or ask questions
the circumstances, and any issues arising, are discussed – the conciliator may talk separately to the parties. While this is happening the party not in the private discussion will be disconnected and called back later. In these private discussions each side is given the opportunity to speak to the conciliator about their situation. The conciliator will discuss with them proposals that might lead to a resolution. The conciliation can continue in private discussions for some time, as the conciliator relays proposals and counter-proposals from one side to the other. This process may help the parties reach an agreed settlement.
the conciliator helps the parties to reach agreement by identifying common ground, suggesting possible options and helping the parties draft an agreement in writing.
After the private discussions all the parties come back together on a joint conference call. If an agreed settlement has been reached the conciliator will confirm the details with the parties. But if no agreement has been reached the conciliator will explain the next steps in the process, which is going to a formal conference or hearing.
The frequently asked questions on the Commission’s website might assist in answering any remaining questions you may have about conciliations, conferences and hearings.
Conciliators work for the Fair Work Commission. They are trained and experienced in conciliation, workplace relations and unfair dismissal law.
Conciliators are independent and impartial – they are not on the 'side' of employees or employers. The conciliator's job is to:
help the parties reach a resolution
lead the discussion and provide guidance
ensure conversations remain polite and on-topic, and
explore the issues involved.
The conciliator does not:
give either party legal advice
argue on behalf of either party
judge the facts of the case, or
make any type of decision or recommendation.
If an agreed settlement has been reached, a written agreement will be prepared for both parties to sign. Unrepresented parties are offered a 3-day cooling off period to decide if they wish to opt out of any agreed settlement.
If no agreement is reached the matter will automatically proceed to a formal conference or hearing, unless the employee chooses to discontinue their application. Conferences and hearing will generally not occur until at least 2 months after the conciliation.