We recently had a new client approach us after an employee had alleged that there had been a breach of a general work protection, involving unfair dismissal, under the Fair Work Act 2009.
- Background
The client was issued with an F8A response form by the Fair Work Commission which he was required to complete and return. A phone conciliation meeting was automatically scheduled because it was an alleged breach of a ‘general work protection’ (with regards to Unfair Dismissal).
Beforehand, the client was briefed by one of our Employee Experts in preparation for the conciliation meeting and the Employee Expert supported the client at that meeting.
- The Conciliation Meeting
The attendees at the meeting were the client and the Employee Expert, the employee and her union representative and the Conciliator.
At this meeting each party briefly stated their case and then the Conciliator, well, conciliated to get an outcome. This was a good process as everyone got a hearing (and no-one really wanted to be involved in escalating the matter, despite what was said on the Fair Work application form!)
An outcome was reached after the Conciliator spoke to each party separately (the client had the opportunity to talk to the Conciliator about his situation & what had happened).
If the matter had not been resolved, there would have been an arbitration meeting, involving the Fair Work Commission, (if both parties agreed), otherwise it would have gone to a Federal Court Hearing (more time and money to prepare and get legal representation). If the hearing had gone against our client and he was found to have breached the Fair Work Act, then he may, at a minimum, have been issued with a fine (broad penalties apply and they are uncapped) and ordered to pay compensation to the employee for their loss.
As it was, the conciliation process took about 1.5 hours, which sounds like a long time but actually went really quickly.
- The Outcome
Once the parties had agreed on an outcome, the Conciliator prepared a terms of settlement document, that stated what had been agreed and this was then signed by all parties and electronically exchanged between them. The agreement, in this case, involved the client continuing to offer work to the (casual) employee and the payment of back pay (being monies owed for underpayment).
- Lessons
It sounds simple doesn’t it? It did take a considerable amount of time in terms of completing the F8A response form, then preparation for the conciliation (and anticipation of what might/might not happen) and the conciliation meeting itself.
Best avoided I think you will agree – but if you have to attend such a meeting be confident that the intent is to conciliate, not escalate and the skilful Conciliator will help you to make this a reality. What are your chances of being called to a Conciliation Meeting?
By Helen Jesse
