The Fair Work Commission (FWC) was established by the Fair Work Act 2009 (Cth) (Act) and is the national workplace relations tribunal in Australia. The FWC assists employers and employees to maintain a fair workplace. One of its many roles is to act as an independent umpire in disputes, including unfair dismissal claims by employees.

An employee can make application to the FWC if they believe they have been unfairly dismissed, discriminated against or bullied at work. To lodge a claim, an employee must file an “Unfair Dismissal Application”. Once lodged, provided the claim is within the time periods specified by the Act, the FWC will deal with the claim by way of the procedure set out in the FWC Practice Note – Unfair Dismissal Proceedings.

After the employer has been afforded an opportunity to respond, Conciliation is one of the first steps to take place in the FWC’s management of an unfair dismissal claim.

What is Conciliation?

Conciliation is the voluntary process where, by telephone, a FWC conciliator attempts to help the employee and the employer resolve the matter without the need for a formal FWC conference or hearing. All matters discussed are kept confidential and there should be no pressure to resolve the matter. It should be noted that unrepresented parties are given 3 days “cooling off” after conciliation to ensure that they wish to proceed with any agreement negotiated at conciliation.

Most conciliations in the FWC can take up to 90 minutes.

Importantly the conciliator is to remain independent and cannot give either party legal advice or make any type of decision on the facts. The conciliator is there merely to assist the parties to explore the issues and attempt to reach a resolution in the matter.

How to prepare for conciliation?

Essentially, the conciliator will manage the structure of the conciliation conference. This will involve an introductory part where the conciliator introduces all the parties and asks each party to make an opening statement. The conciliator will then hold private discussions with each party and explore any possible resolution between the parties as a result of those discussions before bringing those parties back together to see if there is any common ground. Finally, if an agreement can be reached, the conciliator will help the parties document the agreement.

However, while much of the formal parts are up to the conciliator, to ensure that you get the most out of conciliation it is important to make a serious effort to take part in the conciliation and respect the court processes – such as the allocated time for the conciliation conference and be respectful to the other party involved in the conference. All parties taking part in the conference should also have access to all of their evidence and other material to assist their claim (or defence to the claim). Finally, it is a good idea to have clear in your own mind what you would like to achieve from the conciliation conference and a realistic idea about the legal costs involved in pursuing a matter against what might ultimately be recovered.

Conclusion

If you require any assistance with the conciliation process in the FWC, please contact one of our employment lawyers on 1300 544 755.

Emma Heuston

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