Conciliation is a voluntary process to help an employer and employee resolve an unfair dismissal dispute. It is an informal method of resolving the unfair dismissal claim that is generally conducted by telephone and can avoid the need for a formal conference or hearing.
Because conciliations are generally conducted by telephone parties do not need to attend a Fair Work Commission office.
In a conciliation, each party can negotiate in an informal manner and explore the possibility of reaching an agreed settlement. In a conciliation any outcome is possible provided both parties agree to it. But in a hearing the outcomes are limited and strictly controlled by law.
Parties are under no obligation to reach a settlement.
Unrepresented parties are usually offered a 3-day cooling off period following conciliation to decide if they wish to opt out of any agreed settlement.
Conciliations are generally conducted by Commission staff who are trained and experienced in conciliation, workplace relations and unfair dismissal law. In some situations, a Commission member will conduct a conciliation.
Conciliators are independent and impartial – they are not on the 'side' of employees or employers. The conciliator's job is to:
The conciliator does not:
Once a matter has been referred to a Commission Member it may be subject to further conciliation prior to a conference or hearing. Further conciliation can be requested by either party at any stage if the matter does not settle at the initial telephone conciliation.
There is no requirement for a party to be represented by another person at conciliation, but a party may be represented if they prefer. A representative can be a lawyer, an advocate, a union official (for employees) or industry body official (for employers), or even a friend.
No formal permission from the Commission needs to be granted to be represented during conciliation by a conciliator who is a Commission staff member. However, if the conciliation is conducted by a member of the Commission and the representative is a lawyer or paid agent, then permission to appear must be sought.
A party may also consider having a family member or friend with them for support.
If an agreed settlement has been reached, a written agreement will be prepared for both parties to sign. Unrepresented parties may be offered a 3-day cooling off period to decide if they wish to opt out of any agreed settlement.
If no agreement is reached the matter will automatically proceed to a formal conference or hearing, unless the employee chooses to discontinue their application.
In Masters v Cameron the High Court determined that there are 3 classes of settlement agreement for when parties who have been in negotiation reach agreement upon terms of a contractual nature, and also agree that the matter of their negotiation shall be deal with by a formal contract. The 3 classes are:
In each of the first 2 cases there is a binding contract:
Cases of the third class are fundamentally different. They are cases in which the terms of agreement are not intended to have, and therefore do not have any, any binding effect of their own. The expressions ‘subject to contract’, ‘subject to the preparation of a formal contract’ and others of similar import prima facie create an overriding condition so that what has been agreed upon must be regarded as the intended basis for a future contract and not as constituting a contract of itself.
The question of whether or not there was a binding agreement reached between the parties is a matter of fact. Even though the applicant did not sign the agreement arising from conciliation this does not mean that a binding agreement was not reached.
Once an agreement is made to settle an application then that is the end of the application in the Commission.
The enforcement of the agreement is not a matter that can be dealt with by the Commission.
An application to have a matter heard where there is an agreement may result in the application being dismissed because it has no reasonable prospects of success.
 Curtis v Darwin City Council  FWAFB 8021 (Ross J, Smith DP, Gooley C, 17 September 2012) at para. 61; citing Masters v Cameron  HCA 72 (30 November 1954) at paras 9–10, [(1954) 91 CLR 353].
 Curtis v Darwin City Council  FWAFB 8021 (Ross J, Smith DP, Gooley C, 17 September 2012) at paras 62–63; see also Zhang v Spring FG Accounting Pty Limited  FWC 14 (Bissett C, 4 January 2021).
 Heyden v Maa Ambe Group Pty Ltd ATF Maa Ambe Unit Trust T/A Red Rooster  FWC 7854 (Richards SDP, 6 November 2014) at para. 48.
 Australian Postal Corporation v Gorman  FCA 975 (25 August 2011) at para. 33.