Guide to Conciliation

What is conciliation?

Conciliation is an important step in resolving your matter or an appeal.

BOTH PARTIES MUST attend the conciliation hearing and the persons attending MUST have authority to make and/or accept offers.

The purpose of conciliation is to try to resolve a claim or an appeal by agreement without proceeding to a full hearing of the case.  An unfair dismissal or public sector disciplinary appeal may not proceed to hearing unless all reasonable attempts to settle it by conciliation have been made.

Conciliations are conducted in private and the parties are expected to keep the matters discussed in the conciliation confidential.

Conciliation is conducted before the Commission in a relatively informal manner.  The level of formality during conciliation proceedings differs from case-to-case depending on the approach the Commission Member considers appropriate, having regard to the circumstances of the case.

If a claim is not settled by conciliation, it will proceed to hearing where the Member of the Commission will hear evidence and make a decision that is binding on the parties. Even if a matter does proceed to a hearing, nothing prevents the parties from reaching an agreement as to the settlement of the claim prior to the Commission making a final decision.

Who conducts conciliation?

A Member of the Commission will conduct the conciliation.  Their role is to act as an independent third person to help develop possible solutions.  This involves the identification and clarification of relevant issues, mediating between the parties and may involve the making of suggestions or recommendations, which the parties may accept and agree upon to settle the matter.

The amount of time allocated for conciliation is 60 - 90 minutes. Discussions may also take place between the parties outside the hearing room (this is a normal part of the conciliation process).

Where will conciliation take place?

The Conciliation will normally take place in the Commission's premises at Level 10, 10 Smith Street, Parramatta; or by telephone or audio-visual means. In appropriate circumstances, the matter may be listed before a Commissioner in a regional centre.

What happens in Conciliation proceedings?

Parties may appear on their own behalf or may be represented by a union, employer organisation, or may, subject to the leave of the Commission, be represented by a friend, family member, a lawyer or an industrial agent.  Even if you are represented, you are required to attend the Commission unless exceptional circumstances prevent your attendance. In those exceptional circumstances, the person appearing on your behalf must have authority to allow an agreement to be reached.

Conciliation proceedings are not hearings so it is not necessary, for example, to bring witnesses, affidavits by witnesses, etc. unless directed by the Commission to do so.

It is very important that you prepare for the conciliation proceedings.  Your matter will not be adjourned because you have not prepared for the conciliation. 

Usually, the Commission Member will ask each party to give:

1. a brief overview of the events surrounding the dismissal or discipline action, including the reasons for the action taken;
2. their view about a possible resolution and,
3. what might be sought if the matter were to proceed to a hearing.

The Commission Member may direct the parties to discuss the issues privately and may talk to both sides jointly or separately.

A matter may be dismissed if there is no attendance by the person bringing the claim without reasonable cause.

What are the likely outcomes of conciliation?

The outcome of conciliation may be a settlement between the parties on agreed terms or the claim/appeal may be dismissed.

Where a settlement is reached, the Commission may make consent orders concerning the agreement.

DON'T DELAY - PREPARE FOR YOUR CONCILIATION NOW.

What happens if the Conciliation fails?

At the conclusion of an unsuccessful conciliation conference the following will generally occur in order to prepare the application or appeal for hearing:

1. The Member of the Commission who conducted the conciliation will make the “usual directions” unless the Member considers that the “usual directions” should be modified or alternative directions made.
2. The Member should obtain the following information from the parties:
   (i)       the anticipated length of hearing
   (ii)       the number of witnesses
   (iii)      represented or not, and if represented, details of who is acting
   (iv)      special requirements such as interpreters, difficulty with access etc.
3. A Directions Sheet will be completed by the Member.
4. Parties should ensure before they leave the Commission that they understand the directions that have been made and the timetable they must follow. 
   The following documents are available from the Registry or the Commission's website related to appeals:
   (i) Guide to Preparing for Hearing of Public Sector Disciplinary Appeals
   (ii) Notes to Assist Parties - Preparing Statements for public sector appeal matters to be heard before the Industrial Relations Commission

Other documents are available from the Registry or the Commission's website to help you prepare for a hearing.

The Commission cannot provide advice. Assistance and advice may be available to parties from other sources. For example, union members should contact their union and Free advice may be available from community based legal centres or the Law Society's Community Assistance Service.  Professional advice and representation is also available from lawyers, industrial agents and employers' organisations.  LawAccess (1300 888 529 or www.lawaccess.nsw.gov.au) may also be of assistance.