What happens at a Fair Work Commission conciliation

What conciliation is

When you lodge an unfair dismissal application (s 394 of the Fair Work Act 2009 (Cth)) or a general protections application about a dismissal (s 365), the usual first step is a conciliation. A conciliation is a private conference in which an independent conciliator helps you and your former employer try to agree on a way to end the dispute.

It is usually held by telephone or video, and normally lasts a few hours at most. You attend, as does someone for the employer, along with any lawyers or other representatives each side has. The conciliator does not decide who is right and cannot make orders about the merits of the claim.

For a general protections dismissal claim the Commission must deal with the dispute, which in practice means a conference (s 368). Since 7 July 2026 the Commission does not need to decide first whether you were in fact dismissed: an alleged dismissal is enough at this stage. For a general protections dispute that does not involve a dismissal, the Commission can hold a conference only if both sides agree.

The ground rules

At the start, the conciliator explains how the conference will run and the rules that apply. The main ones are these.

(a) Confidentiality. What is said in the conference stays within it, and the parties are asked not to repeat it to others.

(b) Settlement talk. The discussion is a negotiation aimed at settling the claim. Offers and concessions made in it are generally not available to be used as evidence if the matter later goes to a hearing.

(c) No recording. Recording the conference on a phone or any other device is not allowed.

(d) Courtesy. Everyone is expected to listen and not talk over one another.

How the conference runs

The conciliator opens by setting out the rules. Each side then briefly explains its position, usually starting with the worker who brought the claim. This part is short: it is a chance to be heard and to understand the other side's view, not to argue the case in full.

The conciliator then speaks to each side separately in private sessions. Offers are made and carried back and forth by the conciliator until the parties either agree or it is clear they will not. The conciliator may also give a frank view of the risks each side faces, which can help both sides be realistic.

It helps to prepare: know what you want (money, a reference, a resignation instead of a dismissal on your record), what you would accept, and what you have lost in pay since the dismissal.

If it does not settle

An unfair dismissal claim that does not settle is listed before a member of the Commission, who decides it after a conference or a hearing (ss 397–399). Any objection the employer raises about whether you can claim at all, such as the minimum employment period or the high income threshold, may be dealt with first.

A general protections dismissal claim works differently. If the Commission is satisfied that all reasonable attempts to resolve it have failed, it issues a certificate (s 368(3)). You can then apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) within 14 days of the certificate (s 370). Alternatively, if both sides agree, the Commission can arbitrate the dispute (s 369). A court will often send the parties to mediation before any trial.

What a settlement can include

If you reach agreement, it is written up in terms of settlement or a deed of settlement, which is a binding contract. You then discontinue your claim with the Commission. Common terms include:

(a) a payment to you, and how it will be treated for tax;

(b) your dismissal being recorded as a resignation, where that is agreed;

(c) a statement of service or an agreed reference;

(d) confidentiality, and an agreement by each side not to make disparaging remarks about the other; and

(e) a release, under which you agree not to bring further claims about your employment.

Read every term before signing: a release can stop you making other claims you may have, such as an underpayment claim. Remember too that an unfair dismissal or general protections dismissal application must be lodged within 21 days of the dismissal, so it is worth getting advice early.