Step by step guide – Going to conciliation

You should make sure you are on time. Don't be late.

If you can't make it or if you're running late, you should contact the Fair Work Commission (the Commission) straight away. The contact details will be on the Notice of Listing.

Every conciliation is different and will be depend on the circumstances of your case. However, the usual process is:

1. The Commission member conciliating the case explains the process and their role.
   
2. The Commission member will ask you to talk about what happened and what your application is about. If you made the application, you are called "the applicant."
   
3. The employer (the respondent) or their representative (if they have one) will then give the employer's version of what happened and explain their response. 
   
4. The Commission member may ask you and the respondent some questions and discuss the case with both of you.
   
5. The Commission member will have a private session talking to each party separately (usually starting with you).
   
6. The Commission member will help you and the respondent to agree on a way to end the dispute. The Commission member may go back and forth between you and the respondent or may bring everyone back together to talk.
   
7. If you come to an agreement, the Commission member can help you to put this into writing (often called "Terms of Settlement").  

If the Commission member tells you that you don't have a good case, or it doesn't have merit, or it doesn't have 'reasonable prospects of success', you should get urgent legal advice.

You can ask the Commission member for an adjournment so that you can have some time to get legal advice, or consider something the Commission member has said. If the Commission member agrees to adjourn the conciliation, you may have to come back on another day.

Here are some tips for communicating during conciliation:

• Explain things clearly and simply 
  Try to explain what happened in a clear order. A chronology (list of what happened in date order) may help with this.    

Sample:  Sample – Chronology.

• Talk about the things that you have decided are important 
  When it is your time to talk, focus on the issues you have decided are important. Don't get side-tracked by things that happened a long time ago and are not part of why you were dismissed.

• Try to keep calm 
  People will hear and understand you better if you stay calm. Sometimes this can be difficult if you or your employer are discussing your employment history and performance. If you are getting upset or feel angry, you can ask the Commission member for a break.

• Be understanding if the other party gets upset 
  Everyone finds disagreements difficult. Treat everyone else the way you would like to be treated.

• Listen carefully 
  Listen carefully to what the employer says. This is your chance to hear their side of the story. Listen carefully to the Commission member. They may give you helpful information about your case and how you could settle it. You may want to take notes (or ask your support person to take notes).

• Ask questions 
  If you don't understand something, or you are not sure if you have understood, wait until the person speaking has finished and then ask a question. If you are worried you will forget your question, write it down.

• Wait your turn to talk 
  The Commission member's job is to make sure everyone gets a chance to talk. You will have a chance to say the things you want to say after the other party or the Commission member has finished speaking. ​

If you and your employer come to an agreement, that will be the end of the case. You should put any agreement in writing.  For more information, see  Step by step guide - After conciliation.

If you and your employer can't come to an agreement, the Commission will send you a certificate confirming that conciliation was unsuccessful. 

Once you have your certificate, it is possible to:

• ask the Commission to arbitrate (a type of hearing) if you and your employer agree
• apply to the Federal Court of Australia or Federal Circuit and Family Court of Australia.  

For more information, see Step by step guide - After conciliation.

If the Commission member believes that you don't have a good case, or it doesn't have merit, or it doesn't have 'reasonable prospects of success', they should tell you. Sometimes they will write this on the certificate. If the Commission member tells you this or has put this on the certificate, you should get urgent legal advice before filing any further claims.