Conciliation is when the Industrial Relations Commission of New South Wales (Commission) facilitates a discussion between the parties in a matter. It is a time to discuss the legal issues, potential solutions and seek to reach a resolution without the expense of a formal hearing. It can and usually does include discussions that are off the record and private.
Some types of matters can only proceed to a hearing once the Commission is satisfied that the parties have made reasonable attempts to reach a resolution by conciliation.
You do not need a lawyer to attend a conciliation, but you may choose to be represented by a lawyer, industrial organisation (such as a union), or another representative. You also have the right to be represented by an agent, which is another person such as a friend or family member, who has permission to make representations on your behalf.
If you decide to have representation at conciliation, your representative will need the permission (leave) of the Commission to appear for you. Your representative or agent must attach a completed ‘Notice of Appearance’ (Form 3) to the application. You must still attend conciliation if you have a representative.
Whether you can have a support person is a decision for the Commission Member who is presiding over your matter. Before the conciliation, ask the other party if they object to the attendance of a support person and then ask the Commission.
If permission is granted, your support person must remain silent throughout the process and cannot speak on your behalf unless they have been authorised to act as your agent.
A matter will be listed within 14 days of an application being filed with the Commission. You will receive a ‘Notice of Listing’ that includes the date, time and location of conciliation.
A party must apply for an adjournment to delay or change the date, but this is usually only allowed in exceptional circumstances.
The Commission will notify all parties if another date is to be set and provide a new Notice of Listing. Parties should assume the conciliation date has not been adjourned until the new Notice of Listing has been received.
The Commission’s practice is to list conciliations in person. The Commission sits regularly at the Newcastle Local Court and lists matters in the Hunter and surrounding locations. Further it can and will sit in regional locations. However, to minimise cost and inconvenience to parties some conciliations for those located far from Sydney, Parramatta or Newcastle can be conducted by AVL using WebEx. Otherwise, an AVL-only hearing will be listed at the discretion of the decision-maker only in exceptional cases where it is in the interests of justice to do so.
To request an AVL-only hearing:
A Commission Member will conduct the conciliation. They are an independent third person, like a referee, who will ensure everyone follows the rules. They will not give legal advice, argue on behalf of any side or make any final decisions on the day.
One of the Commission’s primary roles is to assist the parties to resolve matters by conciliation if possible. Most conciliations are allocated 90 minutes but the member of the Commission has a discretion to allocate additional time or dates for discussions to continue.
Check the Notice of Listing because the Commission can sit in many locations across New South Wales, including:
You do not need to bring to a conciliation conference any witnesses, affidavits or any evidence to support your claim. However, you should prepare for the conciliation, including by considering the key issues in your matter, thinking about settlement outcomes that are acceptable to you, and gathering the key documents relevant to your claim.
No, but being open-minded can help the parties reach a settlement. While you may have a firm idea of what is a just outcome, you need to consider the advantages of resolving the matter without the need for a formal hearing. If the parties reach an agreement and avoid formal proceedings that will save the parties money, time and stress.
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