When a person makes an unfair dismissal or a general protections application to the Fair Work Commission, the first step in the process is for both parties to attend a conciliation conference with the Commission. This is a compulsory conference that both parties attend, unless the application made does not involve the dismissal of the applicant from their employment. The conciliation takes place by telephone and would usually involve the applicant, who is the person who has made the complaint, their representatives, and the respondent and their representative. There is also a conciliator from the Fair Work Commission, who is an independent third party, in attendance. The conciliator’s job is to run and supervise the conciliation conference.
If a matter is not resolved at the conciliation conference, in an unfair dismissal application, the matter is then programmed to an arbitration before a member of the Fair Work Commission, which is essentially a trial. The situation with general protections applications is a little different. If the matter does not settle at the conciliation at the Commission, it proceeds to a mediation, which is similar to a conciliation conference, at the Federal Circuit Court.
Conciliation conferences at the Fair Work Commission are governed by a number of rules. At the beginning of the conference, the conciliator will usually outline these rules, and the process that the conference will follow. The main rules are:
- All discussions during the conciliation are to remain confidential. Neither party can disclose any discussions that take place during the conference to anyone outside the conference.
- All discussions in the conference are without prejudice discussions. This means that if the matter proceeds to a trial, any discussions and representations made in the conference cannot be used against anyone at the trial.
- Recording of the conciliation with any device is strictly prohibited.
- Everyone must treat each other with respect, so for example, no talking over another person.
Conciliation at the Fair Work Commission is not a trial. It is not focused on either party presenting their evidence, or proving who is right and wrong. The conference is not adversarial in nature. The aim of the conciliation conference is negotiating in order to explore the possibility of resolving the matter between the parties.
The process followed at the Conciliation Conference
The conciliation conference follows the following process:
- The conciliator states out the rules of the conciliation and repeats the obligations on all the parties to keep matters confidential.
- Each party then briefly summarises their case, starting with the applicant. The parties then have an opportunity to ask each other questions and make further comments. This process is usually brief.
- The conciliator then separates each party into private sessions, where the parties begin to negotiate. The conciliator has a private session with each party, where each party puts forth the offer they would like to make to the other party The conciliator then relays this offer to the other side. This process continues until an agreement is reached, and if no agreement is reached, the conciliation ends.
If an agreement is reached between the parties, that agreement is later formalised in a deed of settlement, which is a contract between the parties resolving the dispute. This contract, which our employment law advisory services can help prepare, can include the following:
- The payment of agreed compensation to the employee.
- If applicable, the employee’s termination is withdrawn and the employee be allowed to resign. This gives the employee a clean record.
- The employee be provided with a statement of service;
- That each party agree to keep everything relating to the dispute confidential.
- That each party agree not to make disparaging comments about the other party.
- That each party agree not to take any further legal action against the other party in relation to the employment.