Member conferences in sexual harassment disputes

After the Commission receives an application for the Commission to deal with a sexual harassment dispute and the responses from the other people involved, the Commission may decide that it is appropriate to hold a Member conference.

A Member conference is a conference before a Commission Member. The Member will try to assist the parties to resolve the sexual harassment dispute. Member conferences are informal. They must be conducted in private if the application is not only for a stop sexual harassment order.

A Member conference is an opportunity for the parties to hear each other’s perspectives and to identify and discuss issues in dispute, where there is common ground and what steps might be taken to resolve the dispute. The Commission’s role is to try to resolve the dispute, including through conciliation, mediation, making a recommendation to the parties or expressing an opinion. The Member may make decisions about the conduct of the case, such as who can participate in the conference, and what is needed to help the people involved feel safe and supported, such as having separate in‑person or online meeting rooms. The Member will not usually decide the case in a Member conference.

If the Commission decides to hold a Member conference, the Commission will give the date and time of the conference to:

• each aggrieved person or industrial association that has applied to the Commission
• each respondent to the application
• the aggrieved person’s employer/principal (if any)
• each employer/principal of a respondent to the application 
• any lawyer, paid agent or other representative of a person involved in the case.

You can ask to change the time or date of a Member conference by contacting us in writing. You should ask us as early as possible before the scheduled date.

You need an important reason to change (‘adjourn’) to a different day or time. You must send a copy of your request to the other people in the case.  If it contains sensitive personal information, before you send the request contact us about keeping the case confidential.  We may not agree to a request for an adjournment.

A Commission Member will manage the process and will help the people involved in the dispute try to resolve the issues together. The Member is independent. They will review the documents filed in the case and may make procedural decisions, such as where and when the conference will be, whether it is online or in person, or whether a person can have a legal representative. During a Member conference, they may express an opinion or make a recommendation to resolve the dispute.

Member conferences vary, but usually work like this:

1. The Member explains their role and how the conference will run. 
2. Each side explains their perspective, which might include:
   • what happened
   • how they think the case could be resolved.
3. The Member may ask questions and speak with the people involved in the dispute, either together or separately.
4. The Member will try to help the parties to reach an agreement. To do this, the Member will identify common ground and may offer guidance.
5. The parties involved can choose to resolve a case in any way they think will help. They can find flexible solutions that are relevant to the case. If the parties reach an agreement, the Member can help them record the agreement in writing.  This might involve signing terms of settlement.

See Outcomes of a Member conference for more information.

A Member conference is a good way to resolve a case.

The conference:

• provides an informal and private way to seek to deal with a sexual harassment dispute
• can help maintain working relationships
• can be quicker than a determinative conference or hearing
• helps the people involved feel more in control
• if it resolves the case, can avoid the need for further legal processes such as a formal hearing and decision.

A Member conference works best when everyone is well prepared. Here's how people involved in a dispute about sexual harassment in connection with work can prepare for a Member conference:

Tell us if you need help for a Member conference

Let us know as soon as you can if you need an interpreter or if you have any other special needs.

Bring the right materials

Bring a pen, paper and any relevant documents with you.

Read the application and the responses of each person, then write your notes. Make sure you include:

• which issues are most important to you
• how you think the issues could be resolved
• the outcomes you hope to achieve
• your ‘best case’ and ‘worst case’ outcomes.

Bring a representative or support person

You don't need a lawyer or ‘paid agent’ to represent you at a Member conference.

If you have a representative, they may need to ask permission to appear at the conference.

Alternatively, you can bring a support person. A support person does not usually take an active part in the conference. The support person is often a friend or family member.

Have the right approach

It helps to stay calm and keep an open mind in the conference. Try to:

• be flexible and prepared to consider all options the other person suggests
• be ready to listen and consider other points of view
• focus on the issues and future work relationships.

It’s normal to feel worried and to disagree about some issues. The Member will help you and the other people involved in the case stay focused on resolution.

Where an application to deal with a sexual harassment dispute is settled at a Member conference, the Member can assist them to record the agreed outcomes.  The people involved might prefer to prepare their own agreement based on the agreed outcomes. They can also ask the Member to help.

When a dispute is settled, the people involved may want to keep some or all of their agreement confidential.

Guidelines on the use of confidentiality clauses in the resolution of workplace sexual harassment complaints are available on the Respect@Work website.  The guidelines are relevant to aggrieved persons and industrial associations, as well as employers, respondents, employer organisations, legal practitioners and anyone else involved in the process of resolving a workplace sexual harassment dispute.

The Guidelines recommend that confidentiality clauses in terms of settlement should be:

• clear, fair, in plain English and translated or interpreted where necessary
• considered on a case-by-case basis (about whether they should be included and what they should say), and
• limited in scope and duration.