Information Sheet - Conciliation
Under the laws administered by the Human Rights and Equal Opportunity Commission, complaints are settled through a process known as conciliation.
Conciliation allows the parties to a complaint to state their point of view, discuss the issues in dispute and resolve the matter in way that is acceptable to everyone involved.
Conciliation can happen in a number of ways – it can take the form of separate phone calls between HREOC and each of the parties, a teleconference or a face to face conciliation conference.
The conciliator appointed to your complaint will decide the most appropriate way for conciliation to take place, taking into consideration the circumstances of the complaint and the requests of the parties involved.
What is the purpose of the conference?
The conciliation conference is a meeting that gives all parties involved the chance to express their views about the complaint, listen to each other and settle a matter on their terms. The conciliation conference is not a public hearing, a court of law or a tribunal. That means that parties do not have to prove or disprove the complaint.
What is the role of the conciliator?
The conciliator is not an advocate for either party. His / her role is to make sure that each party has an opportunity to present their point of view and to keep the discussion focused on the issues raised under the law.
The conciliator can also assist the parties to resolve the complaint by making suggestions about possible terms of settlement, providing advice about outcomes from similar complaints and, if required, help write the conciliation agreement.
Who attends the conference?
The conciliator will decide who should attend the conference.
Conciliation is an informal process and there is generally no need for legal representation. However, parties may request that a lawyer or advocate be present. Other groups who may represent parties are unions, employer associations or advocacy agencies.
Either party can request to have a support person attend the conference. The support person does not take an active role in the conference.
If you would like another person to attend the conference, you will need to discuss this with the conciliator.
If you require an interpreter or signer at the conference, please notify the conciliator as early as possible so we can make appropriate arrangements.
What happens at the conference?
Each party is given the opportunity to present their point of view about the complaint, without any interruptions. The parties are assisted by the conciliator to address the issues raised and to consider different ways to resolve the complaint.
The conciliator decides what happens at the conference. Sometimes there will be a discussion between the parties and sometimes the parties will be asked to direct their comments to the conciliator.
There will be times when agreement cannot be reached on certain issues. This should not affect the overall aim of the conference, which is to achieve an outcome of the complaint.
At any stage during the conference either party can request a short break to discuss an issue privately with his/her support person or with the conciliator. Similarly, the conciliator may briefly adjourn the conference to speak privately to one or both of the parties.
In some circumstances, negotiations may be conducted by separating the parties and having the conciliator act as a go-between.
Confidentiality
HREOC’s legislation guarantees the confidentiality of the conciliation process. It states that, should the complaint not settle, HREOC’s President cannot include anything that is said or done in the course of conciliation proceedings in any report provided to the Federal Court or Federal Magistrates Service.
While HREOC cannot require parties to a complaint to keep the conciliation discussions confidential, it is important that they come to an agreement with each other regarding the confidentiality of their discussions and the terms of any conciliation agreement.
Outcomes that are possible
It is important that, prior to the
conference, the parties have a realistic idea about the outcome they are seeking
to achieve.
Outcomes will vary depending on the
nature of the complaint. Possible outcomes to a complaint can include:
- written apology
- changes to working conditions
- review of work practices
- reinstatement to a job
- development of anti-discrimination policies, supported by staff training
- review of grievance procedures within the workplace, and
- monetary compensation.
Once the complaint has been settled, it may be appropriate for parties to sign a conciliation agreement or deed of release.
What happens if the complaint is not resolved at conciliation?
Sometimes complaints cannot be resolved by conciliation. In some cases it may be necessary for further inquiry or investigation into the complaint to take place.
If a complaint under the Racial Discrimination Act, Sex Discrimination Act, Disability Discrimination Act or Age Discrimination Act is not conciliated and no further inquiry is needed, the President may decide to terminate the complaint and issue a Notice of Termination.
Parties to the complaint will be notified as soon as this decision is made.
Once the complainant has received a termination notice, they can apply to the Federal Court of Australia or Federal Magistrates Service to have their complaint heard.
The application must be within 28 days of the date of the Notice of Termination.
Please note this information is a guideline only.
The conciliator will decide the appropriate processes at the day of
conference.
Disclaimer:
The information on this fact sheet is intended only as a guide. It is not a
substitute for legal advice.
