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Discrimination toolkit

Conciliation

What is conciliation?

Conciliation is the process the Anti-Discrimination Board of NSW (ADB) and the Australian Human Rights Commission (AHRC) use to resolve discrimination complaints. It usually involves a face-to-face meeting between you, a 'conciliator' from the ADB or the AHRC and the person you are complaining about, to talk about how to resolve your complaint. This meeting is called a 'conciliation conference'. The aim is to find a result that is acceptable for both sides without involving a court or tribunal. Most complaints are resolved through conciliation.

Conciliation conferences can also be done over the phone, by teleconference. There are positives and negatives to this. If you are thinking about doing it, talk to the conciliator or a lawyer first about whether it's the right process for you.

What if I don't want to conciliate?

Conciliation is usually voluntary, although the ADB and the AHRC have powers to call compulsory conciliation conferences. If either person says no to conciliation, the complaint will probably be 'terminated'. This means that if you want to take it further you have to take it to a court (the FMC or the FCA) or a tribunal (the ADT) (see Courts and tribunals).

There are risks when you go to court or a tribunal. It can be expensive, stressful, and time-consuming. Also, a court might not give you what you want - an apology or a specific policy change, for example. So conciliation is worth considering seriously and we recommend it in most cases.

Where is the conciliation conference held?

Conciliation conferences are usually held at the AHRC office in Sydney's CBD, or at the ADB offices in Sydney, Wollongong or Newcastle. Staff from the ADB and the AHRC also travel to other areas of NSW if they think it is appropriate. It depends on where you live, where the respondent is, and where the discrimination happened.

Who goes to the conciliation conference?

The conciliation conference will be run by one or two conciliators, depending on the case.

The conciliators decide who can go to the conference. Often it will just be you, the person you are complaining about, and the conciliator.

If your complaint is against an organisation, there will usually be someone from the organisation, such as the employer, a senior manager or a human resources manager, as well as the individual person you are complaining about.

You might also be allowed to bring a support person with you such as a friend, family member or community worker.

You don't have an automatic right to be represented at a conciliation conference by a lawyer, union official or other advocate. If you do have a representative who you want to go with you, you need to ask the conciliator for permission. The conciliator is more likely to give you permission for this if the other side also has a lawyer, or is an organisation.

Before and during conciliation, it is good for you to know how strong your case is and what would be a good outcome. The conciliator cannot give you legal advice, so we think it is a good idea to have a representative, such as a lawyer, at the conciliation with you if possible, especially if the other side has a lawyer.

If you are told you cannot have your lawyer in the room with you, ask the conciliator if your lawyer can wait outside the room or be available on the phone in case you need advice during the conference.

If you do not have a lawyer to represent you at the conciliation conference, we strongly recommend that you get some legal advice beforehand.

What if I want conciliation but don't want to be in the same room as the other side?

Tell the conciliator before the conference. They will probably decide to try 'shuttle negotiations'. This is where you and the other side sit in separate rooms and the conciliator moves between the two rooms and meets with each side separately to discuss different ways to resolve your complaint.

Shuttle negotiations can be a good idea if you feel afraid or unsafe being in the same room as the other side.

What happens before conciliation?

The conciliator will tell you the date, time and place of the conciliation conference, and will let each side know who is allowed to go to the conference.

The conciliator will ask you to send them a 'settlement proposal'. This is a list of what you would like to get as the result of the conciliation - for example, an apology, compensation, or your job back. Your settlement proposal is generally used as a starting point for negotiations during the conciliation conference.

It might be useful to send your settlement proposal in before the conciliation conference. If your complaint is against a large company or a government department, the people who actually come to conciliation might not be senior enough to say yes or no to your proposal on the spot. In these cases, it is good to give the people who do make these decisions in the organisation enough time to decide on what they can offer you - for example, how much compensation, if any, they are willing to pay you. Then the people who come to the conference know how far they can go.

How do I work out my settlement proposal?

First, think carefully about what you would like to achieve. These are some things many people say they want to get as a result of their complaint:

"I don't want it to happen to anyone else."

"I want them to acknowledge they did the wrong thing."

"I want them to understand they can't do this."

"I want an apology."

"I want them to know how the way they treated me made me feel."

"I want them to introduce anti-discrimination policies and training."

"I want my job back."

"I want compensation for what I've gone through."

"I want the person who treated me badly to be disciplined."

"I want to be able to work part-time."

"I want to be able to get into the building in my wheelchair."

"I want them to pay for counselling."

When you have decided what you want, think creatively about how you can get it. One of the good things about conciliation is that a wide range of outcomes are possible. For example, if you want to stop the same thing happening to someone else, you could ask for the person who treated you badly to do some training on discrimination, or for the company to develop and implement some anti-discrimination policies.

Here are some of the outcomes people have achieved from conciliation:

  • verbal or written apology;
  • anti-discrimination/harassment training for the person who treated them badly;
  • introduction of policies, procedures and training for preventing and dealing with discrimination;
  • getting their job back - or a transfer to a different job in the same organisation;
  • written reference;
  • counselling paid for by the other side;
  • financial compensation;
  • disciplinary action against the individual person who treated them badly;
  • adjustments to buildings to make them more accessible;
  • changes to working conditions - such as hours of work.

Write down a 'wish list' of what you'd like to be the results of your complaint. This will be your settlement proposal. Make sure that what you're asking for is reasonable. The other side will probably be more willing to negotiate if you can show that what you want can be justified.

This is a good time to do some research on what has happened in other conciliation conferences. There are lots of examples of conciliated outcomes on the ADB and the AHRC websites. Again, we recommend that you get some legal advice on what would be reasonable to ask for in your case.

Remember, your settlement proposal will be used as a starting point for negotiations. It is unlikely that you will get everything you ask for, so be prepared to compromise.

I want financial compensation. How much should I ask for?

Compensation is supposed to put you back in the position you would have been in if you hadn't been discriminated against.

If you ask for money, you should show that the amount you're asking for has been carefully calculated, and you must link the money you are asking for to the discrimination that happened.

First, work out how much financial loss you have had or will have in the future because of the discrimination. This might include:

Lost wages. You may want to claim any wages or other benefits (such as superannuation) you would have received if you hadn't been discriminated against. Make sure you deduct any money you've earned since from the amount you're asking for. You can't double-dip.

Future lost wages. If the discrimination has reduced your ability to work or find work in the future you might want to claim some compensation for this.

Out-of-pocket expenses. If you've spent money on medical treatment, medication, legal advice, counselling or anything else because of the discrimination, you might want to claim this back.

Future expenses. If you're likely to have any future expenses because of the discrimination, such as ongoing counselling, you can ask for an amount to cover these costs.

Second, you might also want to claim an amount for hurt, humiliation or distress you have suffered because of the discrimination. Lawyers call this 'general damages'. It can be very hard to put a money figure on this. If you have any evidence to show that you suffered emotional or psychological harm, such as a psychologist's report, it might help. You can also use outcomes in other conciliation and court cases as a guide.

We recommend that you get some legal advice to help you work out how much money to ask for.

You should also get legal advice on:

Tax issues. If the only money you are asking for is for hurt, humiliation and distress, you probably won't have to pay any tax on it. But if you are asking for other types of compensation, such as lost wages, you might have to pay tax.

Medicare. If you are asking to be repaid for any medical treatment you've had because of the discrimination and that treatment was covered by Medicare, you might have to repay some money to Medicare.

Centrelink. If you are receiving Centrelink payments, you have to tell them about any compensation you get. This might affect the amount of money Centrelink is paying you. You might also have to repay money you received from Centrelink if you get compensation for lost wages.

Workers' compensation. Sometimes money you receive from a discrimination complaint can impact on your workers' compensation entitlements. Make sure you check with your workers' compensation solicitor if you will be affected.

How can I prepare myself for conciliation?

Conciliation can be emotionally draining. It's important to prepare yourself for it. Try to get a good night's sleep the night before.

Conciliation is about compromise, which means you're unlikely to get everything you ask for. It is important to go in with an open mind, and to be flexible, reasonable and realistic.

Before conciliation, it is a good idea to get some legal advice about what your options are if your complaint is not resolved by conciliation. You might want to get advice about the pluses and minuses of taking your discrimination complaint to a court or tribunal.

Tip icon   Tips for before conciliation
  • Leave the whole day free. Don't make any other plans.
  • Re-read all the documents and bring them all with you.
  • Think about what you are prepared to settle your complaint for.
  • You will be asked if you want to say anything at the conciliation conference, so write notes or a statement to help you remember what you want to say.
  • Talk to your conciliator as much as you need to before the conference. If you have any questions, ask them.

What happens at the conciliation conference?

This is what usually happens:

Before the conciliation starts, the conciliator will talk with you on your own (and with anyone you have there with you) and answer any questions you have about what happens at the conference. They will do the same with the other side.

If the conciliation is face to face, everyone will sit in the same room.

The conciliator will begin the meeting by explaining why you're all there, saying what their role is and what the ground rules for the meeting are. These rules generally include a request that:

  • everyone will treat each other with respect;
  • everyone will listen to and not interrupt each other;
  • everyone will try to resolve the complaint;
  • everything said in conciliation is confidential (this means what people say in the conciliation conference can't be quoted in a court or tribunal later if your case goes further);
  • breaks can be taken at any time.

If you want to, you will get to talk about what happened to you and how it affected you. This can be hard, but a lot of people find it is a very valuable thing to do. This is because it is a chance to say what you want to say to those who have treated you badly. If you do not end up resolving your complaint at conciliation, and you do not want to take your case to a court or tribunal, it might help you move on if you have told the other side what they have done and how you feel about it.

If you think you will have trouble talking about what happened, try writing something out before the conciliation conference and taking it with you. You can read it out or give a copy of it to the other side. The other side can then respond to what you have said. It is important that you don't interrupt.

Often you and the other side won't agree about what happened. This is OK. At conciliation, it is usually better not to focus on the details of what happened. The conciliator can't make decisions about who is right or wrong anyway. What is important at conciliation is to focus on finding a solution you can live with so you can put the whole thing behind you.

After you have both had your say, the discussions/negotiations about possible resolutions will begin. This might happen with you all in the same room or with you and the other side in separate rooms and the conciliator moving between the two rooms. Your settlement proposal will usually be the starting point for these negotiations.

If both sides agree on a resolution, the conciliator will help you put it in writing. This is called a 'settlement agreement' (see Settlement agreement). Always make sure that you understand what you're agreeing to. If you don't understand, get legal advice before you sign anything. Once a settlement agreement is signed by both sides, conciliation usually comes to an end. Sometimes the other side will want to write out the agreement and send it to you to sign after the conciliation conference. You can still negotiate changes at this stage if you think it doesn't say exactly what was agreed to at conciliation. And again, get legal advice before you sign it.

If it is clear that you and the other side are not going to reach an agreement, the conciliator will end the conference (see What happens if I don't resolve my complaint at conciliation?).

If it looks as if the two sides might be able to find a solution but they need more time, the conciliator will usually agree to this and set a time limit. Sometimes, people need a second conciliation conference.

Tip icon Tip

The AHRC has produced a DVD called Pathways to Resolution which explains the conciliation process and how to prepare for it. The AHRC can send you a copy or you can view it online under the 'Complaints' tab on the AHRC website.

Things to keep in mind during negotiations

Tip icon   Tips
  • If you can't reach an agreement and you want to take your complaint further, your only option is to go to a court or tribunal. This is a big step. Think about it carefully.
  • Negotiation always involves give and take. Usually, people give up their right to take their discrimination complaint to a court or tribunal in return for things the other side agrees to give them, such as compensation. You might be asked to give up your right to take other legal action against them.
  • The law says that your right to superannuation or your right to make a workers' compensation claim can't be taken away from you no matter what you agree to in conciliation.
  • The other side might also ask you to agree not to tell anyone about the complaint or the agreement (a 'confidentiality clause'). Even if you are happy to agree to this, make sure the agreement doesn't stop you discussing the complaint with a counsellor, a lawyer, a doctor or your partner.

How long does conciliation go for?

It depends. Sometimes it might only go for an hour or two. Sometimes it might go all day, particularly if you are negotiating a settlement agreement. You should set aside a full day, without other commitments, in case it takes that long.

Does the conciliator take sides?

No. A conciliator cannot take sides, cannot make decisions about who is right or wrong, and cannot give legal advice. The conciliator is impartial. They are there only to help the two sides sort the complaint out.

Tip icon   Tips to make conciliation work for you
  • Be flexible and willing to compromise.
  • Try to stay calm, and don't make personal attacks. Personal attacks make negotiations more difficult.
  • Listen when other people are talking and don't interrupt them. Everyone needs to feel that they've been heard before they will be ready to resolve the complaint.
  • Don't be put off if the other side seems hostile. It does not mean that you cannot resolve the complaint.
  • Don't feel pressured to resolve the complaint on the day. If you are not sure about somthing, ask for some time to think about it or maybe get some legal advice.

What is a settlement agreement?

A settlement agreement is a legal contract. It is a document that lists everything you and the other side have agreed to. It gets signed by both sides. If either side doesn't do what they have agreed to do, they can be sued for breaching the agreement.

Settlement agreements can be technical, so it is important to know exactly what you are agreeing to before you sign it. If you are not sure, ask for some time to see a lawyer and get the lawyer to explain it to you.

Tip icon   Tip

A settlement agreement (contract) will only be legally binding if it is signed by 'legal entities'. Individual people are legal entities. Organisations are also legal entities, but you have to use their proper legal name, not just their trading name (see Complaint checklist).

What happens next if I settle my complaint at conciliation?

If you have signed a settlement agreement, the next step is for everyone to do what they agreed to do.

Once your settlement agreement has been signed, the ADB or the AHRC will close your complaint.

If the other side doesn't do what they have agreed to do, you will need to get legal advice about your options as soon as possible.

If your conciliation was in the ADB and the other side have not done what they agreed to do in the written agreement, you will be able to register the written agreement with the ADT if it is less than 6 months since the agreement was signed. You will then be able to enforce the agreement, for example by applying to have money deducted from the respondent's wages if they have not paid you compensation as they agreed to.

What happens if I don't resolve my complaint at conciliation?

If you don't resolve your complaint in conciliation at the AHRC, they will 'terminate your complaint' and give you a 'termination notice'. This means they cannot take your complaint any further. If you want to take it further, you have to go to the FMC or the FCA. You have 60 days after the termination notice to apply to do this (see Federal courts).

If you can't resolve your complaint at the ADB , they will tell you they cannot take it any further. They will ask you if you want your complaint sent ('referred') to the ADT. If you say yes, they will send it to the ADT (see When can I go to the ADT).

Story icon   Ivy's story

Ivy is 62 years old. She has worked as an Administration Officer for the same Insurance company for the past 18 years. Ivy likes to be busy but has noticed  that since her new supervisor started she has been given less work to do. She's also heard her supervisor saying, "Isn't it about time Granny Ivy retired?" The situation gets worse and Ivy feels so humiliated that she resigns.

Ivy makes an age discrimination complaint to the ADB and they arrange a conciliation conference. Ivy has not been able to find another job because of her age, so she asks for a lot of compensation. Her former employer denies that they discriminated against Ivy and claim that there had been problems with her work performance. They are willing to offer her a small amount to settle the complaint, but Ivy refuses to accept this because of how much she has lost financially and because of how hurt she feels by the way she was treated.

Negotiations go nowhere, so the ADB terminates her complaint. Ivy must now decide whether to take her case to the ADT.

How long does the ADB/AHRC complaint process take?

The ADB says they will contact you within about a week of getting your complaint. They aim to finalise complaints within six months, but complaints that are complex can take a year or more.

The ADB must give you progress reports at least every 90 days. If your complaint hasn't been finalised within 18 months, you can ask them to send it ('refer' it) to the ADT.

The AHRC will acknowledge your complaint within a couple of days. It will be allocated to a Conciliation/Investigation Officer within a few weeks. The average time it takes to finalise an AHRC complaint is about six months. Again, more complex cases can take longer.

The ADB and the AHRC like to keep the process moving and resolve complaints quickly. If you think that your complaint needs more time to be resolved properly, just ask for more time.

Can I change my mind and withdraw my complaint?

Yes, you can withdraw your complaint at any time without getting into trouble. Just write to the ADB or the AHRC and let them know that this is what you want to do.

Does conciliation work?

For most people, yes. There are positives and negatives, but in most cases we strongly recommend giving it a go.

The positives are:

  • It's free;
  • It gives you the chance to have your say and let the other side know how their behaviour has made you feel;
  • It's flexible: you can get solutions that might not be possible in a court or tribunal;
  • You can reach an outcome that everyone agrees to rather than risking having a court or tribunal impose a decision on you that you don't like;
  • It gives you the opportunity to resolve your case on the spot in one day, avoiding the risks, time, stress and expense of going to court;
  • It's more informal than a court or tribunal process;
  • You can do it without a lawyer (although it can be a good idea to have a lawyer with you);
  • You can settle your complaint confidentially without your name and story becoming public;
  • Both sides can learn about their rights and responsibilities under discrimination law.

The negatives can be:

  • It's not a court, which means you won't get a decision about who's right and who's wrong. Usually cases will resolve without any legal finding (decision) that the law has been broken;
  • What happened to you won't become public, so it's less likely that your complaint will achieve change in the wider community;
  • Sometimes people can feel intimidated, especially if the other side has a lawyer or is a big company;
  • The compromises you might have to make to settle your case in conciliation might not seem fair.

If you don't resolve your complaint at conciliation, your only option, if you want to keep going, is to take your case to a court or tribunal where a decision will be made. This is a big step. Although you can achieve positive outcomes from a court or tribunal process, it is usually more stressful, can be more expensive and takes more time - and there is always a risk that you will lose.

Conciliation has a lot to offer. It can be a very successful and inexpensive way of resolving discrimination complaints. If you feel you can handle it, you really have nothing to lose by giving it a go.

Story icon   Sarah's story

Sarah has made a sexual harassment complaint to the AHRC against her college tutor and the college itself. The tutor denies that the harassment happened. This makes her wonder whether there is any point in having a conciliation conference, but the tutor and the college agree to go to conciliation so Sarah decides to give it a try.

At the conciliation conference Sarah feels uncomfortable and nervous about speaking. But it's important to her that she tells her story and that the other side hears how the harassment has made her feel. Even though the tutor continues to deny that anything happened, they end up reaching a settlement agreement and her complaint is resolved that day. She feels empowered because she stood up for herself and got to have her say. She's also glad that she doesn't have to take her case to court.

What if I'm not happy with how the AHRC or the ADB handles my complaint?

Both the ADB and the AHRC have 'service guarantees' that explain what you can expect from their staff and what to do if you have a complaint. These service guarantees are on their websites.