Conciliation

Conciliation is a process where an impartial Commission employee, or an external Conciliation and Review Officer (CRO) appointed by the Commissioner, encourages the nominated officer and claimant to discuss the claim with a view to resolving it. Conciliation assists both parties to identify the parts of the claim that are in dispute and any possible areas of agreement.

This section

This section provides information about:

  • the role of the parties including the:
    • Commission employee or Conciliation and Review Officer
    • nominated officer from the agency
    • claimant 
    • support person for the claimant
    • person who can assist the nominated officer with the conciliation process.
  • the conciliation process.

Obtaining agreement to conciliate

When referring a claim to the Commission the agency may indicate whether they are willing to participate in conciliation.

If the agency is willing to participate, the Commission employee managing the claim will discuss the option of conciliation with the claimant. If both parties agree, conciliation will be arranged. 

If an initial attempt to conciliate is not successful, further attempts to conciliate may occur at any time prior to the Commissioner’s final determination of the claim.  

Conciliation will only proceed where both parties agree.
The benefits of conciliation
With the assistance of an impartial person, conciliation can provide the opportunity for:
  • frank and open discussions which may lead to an early resolution of the claim
  • both parties to gain an understanding about each other’s perspective on the claim
  • an agreement to be reached that is acceptable to both parties
  • preserving / improving the relationship between the parties, particularly if there is an ongoing employment relationship.
If conciliation does not result in agreement, the claim proceeds to review.

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Roles of the parties in conciliation

The conciliation process involves the:

  • Commission employee or Conciliation and Review Officer
  • nominated officer acting on behalf of the agency
  • claimant
  • support person for the claimant 
  • person who can assist the nominated officer with the conciliation process. 
It is generally in the interests of both the agency and claimant to attempt to resolve the claim by conciliation. 

Commission employee (Conciliation and Review Officer)

Commission employees are impartial and do not act on behalf of any party. In conciliation, the Commission employee’s role is to:

  • assist the claimant and nominated officer identify the matters of the claim as they relate to the Standard involved
  • provide independent advice on the application of the Standards and Regulations
  • encourage the parties to reach an agreement.

If the Commission employee believes one party is not participating in the process, or agreement is unlikely to be reached within a reasonable timeframe, they may recommend to the Commissioner that conciliation is discontinued and the claim is reviewed.

Nominated officer and the claimant

To assist the resolution of the claim, the nominated officer and claimant should:

  • be available for conciliation
  • listen to each other and talk about the claim 
  • keep an open mind and be prepared to consider a range of options that may resolve the claim. 

Representation

Neither party is entitled to be represented (by a lawyer or advocate) unless the CRO or Commission employee decides the process cannot proceed effectively without representation.

Support persons

During conciliation, claimants are entitled to be accompanied by a support person of their choosing (for example, a family member, friend, union officer or delegate or colleague),  unless the Commission employee decides otherwise. This may be on the grounds that the process cannot proceed effectively with the person being accompanied by the support person. 

The role of the claimant’s support person is only to support the claimant. They do not act on behalf of a claimant by putting forward their point of view or any counter arguments, nor do they act as a witness to events surrounding the claim. However, they may assist the claimant to clarify matters or may prompt the claimant to ask questions.

The nominated officer is also entitled to be accompanied by another person who can provide relevant information if needed, unless the Commission employee decides otherwise. This may be on the grounds that the process cannot proceed effectively with the nominated officer being accompanied by the other person. While this person may provide information to assist the nominated officer during conciliation, only the nominated officer is entitled to act for the agency.

The Commission employee should be given the names of any support persons or persons assisting the nominated officer before the conciliation process starts.
Checklist: Preparing for conciliation

Agencies can prepare for conciliation by:

  • allocating a nominated officer who has the authority to make decisions during the conciliation process about how the claim may be resolved
  • allocating a nominated officer who understands and is able to talk about the claim, and will genuinely consider options for agreement
  • ensuring the nominated officer is prepared for the conciliation process by having a copy of the claim and other relevant documents and information they may wish to refer to
  • identifying if the nominated officer needs to be accompanied by another officer who can assist in the conciliation process.

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The conciliation process

Invitation to participate in conciliation

If both parties agree to conciliate the Commission employee will:

  • discuss the most appropriate way to conduct conciliation
  • arrange where and when conciliation will take place
  • clarify any particular requirements that the  nominated officer or claimant may have, such as communication aids or access requirements
  • advise both parties of the conciliation arrangements.

Requests for information

Prior to conciliation, the Commission employee may seek information about the claim and request relevant documents.

This may include:

  • contacting the claimant to clarify the claim as it relates to the Standard. Any changes to the claim as a result of this clarification may be referred to the agency for their information prior to conciliation
  • seeking clarification of any information provided by the agency 
  • obtaining any documentation from the claimant or the agency considered relevant. The agency and claimant must comply with any request for documentation.  

Conducting conciliation

The conciliation process may involve a meeting between the Commission employee, the claimant, the nominated officer, another officer and a support person. 

Conciliation may be conducted in a number of ways, including:

  • face-to-face with all parties involved 
  • by teleconference or videoconference
  • having one-to-one meetings or telephone conversations with the claimant/support person and nominated officer/offer assisting separately.

Discussion and agreement

A Commission employee may encourage open and frank discussion by:

  • asking the claimant to talk about their claim
  • asking the nominated officer to respond to the claim
  • reminding parties that anything that is confidential in conciliation cannot be later used in a review process
  • encouraging discussion about what the claimant and the nominated officer believe would resolve the claim and facilitating an agreement where possible. 

Documenting a conciliated agreement

If agreement is reached through conciliation, the Commission employee will:

  • set out the terms of the agreement in writing
  • arrange for both parties and the Commission employee to sign the agreement
  • give a copy of the agreement to the nominated officer, the claimant and the Commissioner.
A signed agreement concludes the claim.

Proceeding to review

Where either the claimant or nominated officer from the agency does not agree to conciliation, or the conciliation process does not lead to an agreement, the claim will proceed to review.

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Page last updated 30 December 2014