Conciliation in Fair Work

Author: Ian Aldridge, Progressive Legal

Conciliation in Fair Work

Often in Unfair Dismissal matters, the first step of the dispute resolution process will involve conciliation.   

Conciliation is informal and generally conducted by telephone by a Conciliator. 

The Conciliator’s role

The Conciliator is a Fair Work employee.   

The Conciliator does not have the power to review the merits of a case at conciliation. That is, they cannot decide who is “right” or “wrong”.  The Conciliator’s role is to try to help the parties to reach a settlement between themselves. 

The conciliation process

The conciliation begins by the Conciliator greeting each party and asking each party to share their points.   

Then the Conciliator will break the parties into separate “rooms” on the telephone system. This may involve inviting each party to explain their side to the other side with both parties on the line.  

Sometimes a Conciliator will ask each party if there is anything they felt uncomfortable sharing with the other party present. While the Conciliator cannot make findings of fact, they can help parties explore ways to state their case, the merits and disadvantages of their case, and try to explain where the other party is coming from. 

The Conciliator will encourage each party to contemplate possible settlements. Therefore, it’s important to consider what you want and what you’re willing to offer before going into conciliation.  However, you should also keep an open mind about what the other party puts forward.   

Given the open nature of conciliation settlement agreements, it’s not uncommon for one party to put forward a suggestion that the other party had not considered. It’s okay to ask the conciliator if you need time to consider what the other party has said or if you need some clarification about what is being offered. 

Some employers feel that by putting forward a financial offer at conciliation, they are agreeing to what accusations are being made by the employer against them. It’s important to remember that conciliation is not a fact-finding process. Many employers take the time to consider the time, energy, and financial costs of going to hearing and take that into account when negotiating at conciliation.  

For instance, if you estimate that it will take $15,000 to have your legal team review the opposition’s filings, prepare for a hearing, file and prepare documents, and attend a hearing, then you may consider it to be more economically efficient to put forward an offer that reduces the financial cost to your business, for example $5,000.   

Sometimes a business has a major project or opportunity coming to it imminently that will require a lot of the business owner’s time and energy, and the business owner may consider that it is more efficient to attempt to settle. Opportunity costs should be considered as well.  

Additionally, when a business has unfairly dismissed an employee,  they should definitely consider potential remedies that the employee may receive if the matter proceeds to hearing and also public findings being made.    

Agreements in Conciliation

Each party in a conciliation can negotiate informally to attempt to reach a settlement.  

Interestingly, while unfair dismissal disputes have limited remedies that a Member of the Fair Work Commission (FWC) can order at a hearing, the parties can reach any decision they can agree to in conciliation.    

Some outcomes of settlements in conciliation include: 

• Allowing the employee to resign 
• An apology 
• Reinstatement 
• Employment continues as it did before, preserving continuity of service 
• An employer pays entitlements to the employee 
• Financial settlement, 
• The employer provides a statement of service 
• A release agreement between the parties, including a non-disparagement agreement. 

If the parties do reach an agreement at conciliation, the parties will write the agreement between themselves.  

If a party is not represented at conciliation, they are usually offered a 3-day cooling off period to decide if they wish to proceed or reject a proposed settlement agreement. 

No agreements

Parties do not have an obligation to reach an agreement at conciliation.   

If the parties don’t reach a settlement at conciliation (or if they do reach a settlement but one party is not represented and opts-out of the agreement during the cooling-off period), the employee may decide to continue with their claim. 

If the parties do not agree to a settlement, the dispute will proceed to a formal hearing or conference before a Member of the FWC.   

Preparation for a hearing or conference can be very time-consuming. The parties will receive orders for the time frame to prepare and produce evidence before the hearing or conference. 

Legal Representation at Conciliation

Parties do not need to be represented by solicitors at conciliation, but many people feel that it helps them narrow their issues in dispute and reach a more satisfactory outcome, faster. It can also assist the business in having legal representation to take care of the matter while they can concentrate on other business activities.  

Contact our team of experienced unfair dismissal lawyers today to see how we can help you manage your risks, costs, and stress during Unfair Dismissal proceedings.