Navigating the Fair Work Commission Conciliation Process
Conciliation is a voluntary process to help an employer and employee resolve a dispute, which may include unfair dismissal claims, disputes regarding flexible work arrangements, or disputes regarding the extension of parental leave.
Conciliation is an informal method of resolving these disputes that is generally conducted by telephone and can avoid the need for a formal conference or hearing. In a conciliation, each party negotiates in an informal manner and explores the possibility of reaching an agreed settlement, any outcome is possible provided both parties agree to it. However, parties are under no obligation to reach a settlement, and unrepresented parties are usually offered a 3-day cooling off period following conciliation to decide if they wish to opt out of any agreed settlement.
There is no requirement for a party to be represented by another person at conciliation. A representative can be a lawyer, an advocate, a union official (for employees), or industry body official (for employers), or even a friend. No formal permission from the Commission needs to be granted to be represented during conciliation unless the representative is a lawyer or paid agent, then permission to appear must be sought.
Conciliations are generally conducted by Commission staff who are trained and experienced in conciliation, workplace relations, and unfair dismissal law. In some situations, a Commission member will conduct a conciliation. 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.
Once a matter has been referred to a Commission Member it may be subject to further conciliation prior to a conference or hearing. Further conciliation can be requested by either party at any stage if the matter does not settle at the initial telephone conciliation. If an agreed settlement has been reached, a written agreement will be prepared for both parties to sign. If no agreement is reached the matter will automatically proceed to a formal conference or hearing, unless the employee chooses to discontinue their application.
Outcomes at conciliation can include;
- an apology;
- the employer allows the employee to resign;
- the employer gives the employee their job back;
- financial settlement;
- the employer provides a “statement of service;
- both parties agree to keep the details confidential and not criticise the other (‘non-disparagement agreement’); and/or
- both parties agree, where the law allows, that they will not take any other actions against the other party (‘release agreement’)
Once an agreement is made to settle an application then that is the end of the application in the Commission. The enforcement of the agreement is not a matter that can be dealt with by the Commission.
WCA Solutions team of Industrial Relations and partnered Employment Lawyers are experts at representing and supporting clients to provide advice, represent and navigate the conciliation process.
Contact us at 9383 3293 or request a call back to arrange a meeting.