Q&A: Conciliation conferences for WA employees

A conciliation conference is an informal process where parties explore the possibility of reaching an agreement in relation to their dispute. An agreement ends the matter and avoids the need to go to a formal hearing.

An independent conciliator guides the process and helps parties come to an agreement. If you reach an agreement that ends the matter, it’s called a “settlement”.

The process is conducted on a confidential, without prejudice basis. Confidential means that the conference is held in private, and the details are not made publicly available (although conciliations can be publicly listed). Without prejudice means that offers or concessions made in the conference generally cannot be used in any later hearing. This is so that employees and employers and employees feel like they can talk freely and openly about matters and options for resolution.

Parties are under no obligation to reach settlement at the conciliation. Because the process is informal, there is a degree of flexibility as to how the conference can be run.

Conciliations can sometimes be voluntary (you can chose whether or not to go) and sometimes they are mandatory (you have to go). If you have made a claim and you don’t attend conciliation, your claim may be dismissed.

The conference will generally run for approximately 1.5 to 2 hours, although in some circumstances it can go longer.

If you have a Unfair Dismissal conciliation in the Fair Work Commission (FWC) you can access their conciliation module here. This module will explain the role of conciliation, the process in the FWC for unfair dismissal claims and explain potential outcomes ion the conciliation.

You may need to seek permission for a lawyer or paid agent to represent you at a conciliation. For further information, consult the Registry of the relevant Court or Commission, or view our Claim Guide resources on the relevant claim.

There is no requirement for a lawyer to be present. The conciliation process is designed to be user-friendly and manageable for parties who speak for themselves.

If a party chooses to have representation, it will normally be a lawyer, advocate, union official (for employees) or industry body official (for employers).

You can also bring a friend or family member as a support person to the conciliation. Please note that a support person cannot argue on your behalf, and they shouldn’t be involved in settlement negotiations. As with a representative, you may need to ask permission for a support person to be present, depending on the body you have made your claim to.

If you need an interpreter to come to the conciliation, be sure to contact the court or commission in advance.

A conciliator acts as an independent third party in the conciliation. Conciliators are not there to make decisions, their role is to help parties come to an agreement. The conciliator may tell the parties the strengths and weaknesses of the case when speaking to them separately, but they will not ‘take sides.’

The conciliator’s job is to:

• lead the discussion and provide guidance;
• explore the issues involved;
• ensure conversations remain polite and on – topic; and
• help the parties reach a resolution.

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 final decision or recommendation.

A conciliation is normally scheduled after the court or commission receives your employer’s response for your claim. However, the timing will depend on the resources of the court or commission, and their capacity at the time.

You will receive a notice of listing for the conciliation which gives you the time and other details you need.  This may be by letter or email, and even telephone in more urgent cases. The conciliation is not optional. If you choose not to attend the conciliation conference, your claim may be dismissed and there can be potential costs consequences.

It is your responsibility to make sure you attend at the designated date and time. Make sure you put the date in your calendar and remind yourself that it is coming up – it is not the court or commission’s responsibility to remind you.

The conciliation may be held in person, or it may be held over telephone or by video conference.

Generally, you should allow around 2 hours for the conference – avoid having competing priorities on the day.

There is no set dress code, however, do take into consideration this is a matter of respect. You also want to demonstrate to yourself and the other side that you are taking the matter seriously. Therefore, it is recommended to dress smart, neat, and tidy, as you might for a job interview.

You may wish to draft detailed notes, possibly even in a script format, to lay out your side of the story and help you think about what you will say during the conference. While you might be confident that you know what you will say, it’s possible you will get nervous on the day, and it can help to have a script or notes to help you.

You should organize your notes in chronological (time) order and include important details but avoid going into irrelevant matters. It can be appropriate to briefly mention how certain things made you feel, however as a general rule you want to stick to the facts of what happened and avoid discussing your emotions.

Things you should cover during the conference include:

1. 1. The events leading up to the issue, and the issue itself. You only need to cover what is relevant to the claim you are making.
2. 2. How the issues related to the claim have made you feel and how you’ve been affected by them. Sometimes the other side isn’t aware of how you have been affected and it can be helpful to summarise this briefly.
3. 3. What your response is to your employer’s position. Please note this is not an opportunity to attack the character of the other party. It is more to highlight to the conciliator what the points of difference are. This could help the conciliator in assisting you to come to an agreement.
4. 4. The amount of money, or other things you are asking for to settle the matter. The conciliator may ask you directly what you are prepared to settle for and normally this question is asked of the employee first. You don’t necessarily need to set this out in your initial statement, it will be addressed at a later point.

Prepare to bring any important documents that are relevant to the discussion you will be having at the conciliation conference. Remember to bring three copies of the relevant document, one for yourself, one for the other party and lastly, for the conciliator.

You don’t need to bring all your evidence. A conciliation is not a final hearing and you don’t need to “prove” your argument. However, if there are certain key documents that go to the center of the issue, then you might want to bring them.

You should also bring copies of all documents filed with the Commission/Court as part of your application (e.g. your initial application, employer’s response, etc.)

You may want to consider seeking legal advice before attending the conciliation.

If you have a Unfair Dismissal conciliation in the Fair Work Commission (FWC) you can access their conciliation module here. This module will explain the role of conciliation, the process in the FWC for unfair dismissal claims and explain potential outcomes ion the conciliation.

You need to be able to outline your ideal solution and be prepared to provide reasons as to why it is a fair outcome.

You should also think about the minimum you are ready to settle for. This is not your ideal position, but the least you are prepared to accept. It’s common in a conciliation to start with your ideal outcome, then negotiate towards a final agreement that might be less than your ideal, but is equal to or higher than your minimum.

When thinking about what constitutes a fair outcome to you, consider what you have lost (wages, for instance) and how you have tried to minimize your losses, for instance being looking for a new job. You want to be able to explain how you have come to a particular amount – this strengthens your bargaining position.

This is not something you want to be coming up with on the spot during the conciliation. Think about compromise.

Because conciliation are informal, there is some flexibility in how they run. Generally however, most conciliations proceed in a similar way.

Firstly, the conciliator will outline their role and explain the purpose and the process of the conciliation.

You will then be asked to explain your position. This is when you will read your statement or otherwise cover the main points as outlined in the sections above.

After you have outlined your case, the employer will be given the chance to respond. Be prepared for the other party to say something that is difficult to hear or that you do not agree with. It is best that you remain calm and avoid acting emotionally. Write down what you disagree with and then ask the conciliator for a chance to respond when your employer has finished.

Try not to get involved in an argument. It’s unlikely that you will come to an agreement on what happened, or who is “right”. Keep in mind that the purpose of the conciliation is to identify points of difference and points of agreement, to help negotiate towards a settlement and avoid further proceedings.

After both parties have explained their positions, the conciliator will begin the negotiation stage. It’s quite common for the conciliator to split the conference at this stage and talk to parties in separate rooms.

Any private discussion you have with the conciliator is generally confidential and they will not repeat what you have said to the other party. However, it is also normal for the conciliator to take your position and any offers you make to the employer, with your agreement.

Keep in mind that it is not a hearing. You can respond to matters raised by the other party, but you are not there to persuade the Court or Commission that your case is just – you are there to negotiate and attempt to reach a settlement.

This is an important process, and you should go into the conference with a genuine intention to participate fully in the process and negotiate with the other party.

If you have a Unfair Dismissal conciliation in the Fair Work Commission (FWC) you can access their conciliation module here. This module will explain the role of conciliation, the process in the FWC for unfair dismissal claims and explain potential outcomes ion the conciliation.

The next steps can vary depending on which court or commission your claim has been made to.

A very important thing to be aware of is that the next part of the process will lead to a formal hearing, where the court or commission will make a final decision based on the evidence and case presented. This decision will be legally binding and will not be negotiated like a conciliation.

For a final hearing, you will need to prepare written legal submissions about your case and present them in the formal environment of the court or commission. There are varied steps leading to a hearing depending on the body your claim was made to, but it can be months between a conciliation and reaching a final hearing. In some courts it can take a year or longer.

The process can be very stressful and time consuming, and can be difficult to navigate without legal representation. Even if you are successful at a final hearing, there is a chance that your employer will appeal the decision and further proceedings may be necessary.

You can also discontinue your claim after an unsuccessful conciliation if you do not want to proceed further to a formal hearing.

If the court or commission is satisfied that all reasonable attempts to reach a settlement have been or are likely to be unsuccessful, the matter will usually go to a final hearing, which can result in a legally binding decision. The court or commission may exercise its discretion to hold another conference if they think this might result in an agreement. If the matter is referred to a final hearing, you may need to first attend a directions hearing or an initial hearing. These types of preliminary hearings set out the timetable leading up to the final hearing and may try to narrow down the issues in dispute.

For some courts or commissions, the directions may instead be given at the end of an unsuccessful conciliation.

A trial or final hearing is often public and any decision is issued in a public document. Once the court or commission hears the evidence and submissions of the parties, it issues a decision which is binding on both parties.

Keep in mind that you may be able to reach settlement at any time up until the final hearing, and you can request another conference at the discretion of the court or commission.

If an agreement has been reached, it is very important that parties are clear about the terms of the agreement. The most common type of settlement is that a payment is made in exchange for the claim being discontinued, however, there are a lot of important terms that go beyond settlement amount or the settlement actions.

You should make it clear whether or not you are agreeing to settle the claim in question, or all potential claims. If you don’t make this clear it might be assumed that you are settling all claims.

It’s common for a written document to be prepared for both parties to sign. This is often in the form of a “deed of settlement”. The Conciliator may offer to draft simple settlement agreement, however some employers may insist that their lawyer draft this document.

If there has been an agreement which has been reached to settle a claim this is the end of the claim in the court or commission. Moving forward, ensuring enforcement of the agreement is not the role of the court or commission.

If a settlement is reached during the conference then the parties will need to put that settlement into writing. Putting a settlement into writing makes sure that the terms of a settlement are clear.  By doing so, you are ensuring that your settlement agreement is legally binding in the way that you have intended it to be. If something is not written clearly, or not included in the settlement when in writing, even if you believe that it was made clear during verbal discussion, you run the risk of that term not being a legally binding part of the settlement.

A settlement can include other things as well as, or instead of, financial compensation (a payment).

Some things to consider are:

• how much is to be paid, and who is to pay for it?
• does the amount include tax or interest?
• how is the money to be paid?
• when is the money to be paid and the documents signed?
• the application of the agreement. Is the settlement agreeing to end this claim only, or all potential future claims in relation to employment?

There are a number of terms which are considered fairly standard in a settlement agreement. These terms generally benefit both parties equally, so they are not disputed:

• mutual non-disparagement – which means both parties agree not to disparage (don’t criticise or run down) the other party.
• mutual releases where each party releases the other party from any and all claims that arise out of the employment or the termination of employment.
• statement of service.
• notice of discontinuance.

It’s also fairly common for a settlement agreement to have a confidentiality clause – meaning that both parties agree not to discuss the issues going forward. However, for some types of claims, like sexual harassment claims, a confidentiality clause may not be appropriate.

The terms of settlement usually include that the applicant or claimant will discontinue their claim with the relevant court or commission.

You should not discontinue your claim until all the terms of the agreement have been completed, which normally means when the settlement sum has been paid to you.

Claim Guide – Unfair dismissal for state system employees

Claim Guide – Unfair dismissal for national system employees

Claim Guide – General protections for national system employees

Claim Guide – Protection of employee rights for state system employees

Claim Guide – Australian Human Rights Commission for WA employees

Claim Guide – Equal Opportunity Commission for WA employees

Fair Work Commission

Western Australian Industrial Relations Commission

Equal Opportunity Commission

Australian Human Rights Commission