NT Anti-Discrimination Commission
A Guide on Conciliation Conferences within the Anti-Discrimination Commission
What happens in a conciliation conference?
A conciliation conference is a meeting between the two parties (the Complainant and Respondent) to attempt to resolve the complaint. The conference is conducted by a Conciliator. The Complainant and the Respondent usually meet "face to face", though not always. Often, this will be the first time that the parties have met to discuss settling the complaint.
The aim of the conciliation conference is to allow the parties to discuss the alleged discrimination and the issues around it, and to attempt to find a mutually agreeable way of resolving the complaint. The conference provides a chance for better understanding between the parties, even though they may not agree about exactly what happened.
The Conciliator may meet with each party privately before the conference to make sure that each party is clear about the aim and the way the conference will proceed. Once the Complainant and Respondent are brought together, the Conciliator chairing the conference gives a brief introduction outlining their role and the way the conference will be run.
A conciliation conference will usually be organised after the Delegate of the Commissioner has made a prima facie decision. This decision means that while the complaint has not been proven, there is sufficient evidence for it to go to a hearing. However, one of the objects of the Commission is to encourage conciliation and a conference will be convened at any stage at the request of the parties.
No-one can force the parties to settle but a conciliation conference gives the parties a chance to come to their own solution rather than have a solution imposed upon them.
What are the rules at a conciliation conference?
The rules are really about common sense and courtesy:
- one person speaks at a time — don't interrupt each other;
- both sides agree to keep the discussion confidential;
- no personal attacks;
- discussion should focus on the issues in question — not unrelated matters;
- no cross-examination;
Strategies for participating in a conciliation conference
- Be prepared! Before you come to the conference
- consider all of the information and issues and think about it from the other party’s perspective as well (what will be their concerns, issues, etc);
- have some options for how you think the complaint may be resolved;
- get any legal, financial or other advice you may need prior to the conference (remember this is a suggestion not a requirement);
- if you are the respondent organisation, send someone who has the written authority to negotiate and sign a settlement agreement on the day;
- park your car somewhere where you won't have to worry about parking fines;
- turn off your mobile phone;
- allow about two to three hours for the conciliation conference.
- Discuss all the issues, as you see them, with the Conciliator before the conference. Ask questions if you have them.
- Remain calm — try not to take any allegations personally or lose perspective - this can make negotiations more difficult. Remember that the Conciliator is impartial and will not take sides.
- Be open — discussions in a conciliation conference are confidential and they cannot be used by either party at the hearing. If you have information that the other party should be aware of and was not shared during the investigation of the complaint, you can raise it now. For example, Respondents should tell the Complainant what changes their organisation may have made in order to deal with the problems that have been raised by the complaint.
- Listen — don't interrupt. In general, Complainants need to feel they have been heard before they are ready to resolve the complaint.
- Call for a break — if you need a glass of water, time to collect your thoughts or to obtain advice or consider your position.
What do we need to know about the Conciliation Process?
There are three main elements in a conciliation process:
- Flexibility
- Impartiality
- Confidentiality
Flexibility
The usual conciliation process can be changed to suit both parties. The Conciliator will listen to any reasonable suggestion you have to make things easier. This can include working out who should be at the conciliation conference or when it should be held.
Impartiality
Being impartial is essential to the work of the Office of the Anti-Discrimination Commissioner. It means the Conciliator will be even-handed, objective and fair. In other words the Conciliator will not take sides. Allegations of the Conciliator being biased are very rare. If you do have such a concern then you should raise it with the Delegate prior to the conciliation conference.
Confidentiality
The Anti-Discrimination Act (section 108) requires that all staff of the Office of the Anti-Discrimination Commissioner protect the confidentiality of complaints, unless we have consent from both parties to do otherwise.
This means that:
- it is our practice not to reveal if we have received a particular complaint if media (or other) enquires should arise;
- we handle matters discreetly and do not leave telephone messages that would indicate that there is a complaint with us;
- we mark all of our correspondence "private and confidential";
- we ask that both Complainants and Respondents keep the complaint confidential as well, to give it the best possible chance of being resolved;
- if the complaint is not settled through conciliation and the Complainant or Respondent asks for the complaint to be referred to hearing, no information about the conciliation process will be made known at the hearing. Only the key documents collected during the investigation will be made available at a hearing (you will be given a copy of these).
Do we have to participate?
The Delegate can instruct parties to attend a conciliation conference (section 79). If Complainants or Respondents refuse to attend, the person who refuses to attend can be fined.
Who should come to a conciliation conference?
Complainants and Respondents should attend the conference personally.
If the Respondent is a large organisation, they should send someone who has written authority to negotiate on behalf of the organisation:
- In the case of a Territory government department or Territory-based company, the CEO; or
- In the case of a non-Territory-based company or government department the Territory Manager, and/or (depending on the type of complaint) the national HR manager, who has:
- Good communication, empathy, listening and 'people skills'
- Good negotiation skills
- Creative ideas for resolving the complaint; and
- Preferably someone who has not already had unpleasant contact with the Complainant, and who is not personally named in the allegations. (In some instances the Complainant may wish a particular person identified in their complaint to be present).
Parties can occasionally bring along a 'support person', however our experience is that the more people there are at the conciliation, the harder it is to settle the complaint. If the Conciliator and the Respondent agree to a 'support person' being present, it is usually on the basis that the person does not speak or otherwise participate in the conference. (This is to be discussed with the Conciliator and decided upon by the Conciliator prior to the conciliation conference).
What sorts of things resolve complaints?
- a written apology
- introduction of policies and guidelines to show that discrimination is against the law and will not be tolerated
- individuals undergo training to learn about what is and isn’t appropriate behaviour
- provide access to training or chances for promotion
- provide a service that was previously denied or given in a way that was inappropriate
- financial compensation for lost income or for hurt and humiliation
- other gestures to show the Respondent's good will towards the Complainant
This list is not exhaustive and there are many other ways of solving a complaint.
What if we work out what will resolve the complaint?
If the complaint is resolved at the conciliation conference, the Conciliator will record the terms of the agreement reached and have it signed and dated by the parties.
There are some questions that you should think about:
- Whether the agreement is to be confidential or whether the agreement, or parts of it, can be a public document.
- Does the agreement settle any other claims (for example, if there is a claim before the Australian Industrial Relations Commission).
- Is there an admission of wrongdoing or not, by the Respondent? (It is NOT necessary for any party to admit to wrongdoing for an agreement to be reached).
- Is it clear what will be done to settle the complaint? Who will do what? When it will be done? It is important that both parties believe that they can deliver what they have agreed upon and they will know if the agreement has been carried out or not.
Once a settlement agreement is signed by both parties, an original, signed copy will be given to the Complainant and Respondent for them to keep. A copy will be retained by the Office of the Anti-Discrimination Commissioner.
What happens if things aren't sorted out through conciliation?
The complaint is certified as one that cannot be conciliated. It is then referred to a hearing before the Commissioner.
What if the agreement is breached?
The aggrieved party has the right to bring an action in the Local Court to enforce the settlement agreement as a contract, however we ask the parties to contact the Anti-Discrimination Commission first.
Where can I get more information?
You can get free and confidential information about the Anti-Discrimination Act 1992 from the Office of the Anti-Discrimination Commissioner. Ask to speak to an Inquiries Officer by telephone during normal business hours. You can also get information from the Conciliator handling your complaint.
The Office of the Anti-Discrimination Commissioner produces brochures about making a complaint and how complaints are handled. These are free and available in six community languages (Tagalog, Vietnamese, Portugese, Indonesian, Mandarin and Thai). The Office of the Anti-Discrimination Commissioner also conducts community education about people's rights and responsibilities under the Anti-Discrimination Act.
You can seek legal advice from a lawyer, a community legal centre (there are examples on the next page) or if you are a member of a union, through your union. If you are a Respondent you may wish to approach an industry organisation such as the NT Chamber of Commerce and Industry, the Australian Hotels Association or the Australian Mines and Metals Association.
Copies of the Act can be purchased at the NT Government Printing Office.
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Other agencies which may be able to assist you:
Darwin Community Legal Service
Telephone: (08) 8982 1111
Alice Springs Community Legal Service
Telephone: (08) 89 522 151
Disability Discrimination Legal Service
(For help with making a complaint of discrimination on the grounds of disability or impairment).
Telephone: (08) 89 413 394
Top End Women’s Legal Service
Telephone: (08) 89 419 989
Central Australian Women’s Legal Service
Telephone: (08) 89 524 055
Translating and Interpreting Service
Telephone: (08) 89 997 566
Australian Industrial Relations Commission
Telephone: (08) 89 443 131
Department of Industrial Relations
Telephone: (08) 89 461 666
Human Rights and Equal Opportunity Commission
(for complaints under Commonwealth laws, or against a Commonwealth Department or agency in the area of work)
Level 8, Piccadilly Tower
133 Castlereagh Street
SYDNEY NSW 2000
GPO Box 5218,
SYDNEY NSW 2001
Toll Free: 1800 021 199