Pathways to resolution: The conciliation process of the Australian Human Rights Commission

As you know I really liked my job with the
company and I feel that I did a good job. John, when I told you that I was pregnant
I felt that you weren’t very happy about it and I couldn’t believe that just a few weeks later
I was sacked. While we agree that you were dismissed, this was not because you were pregnant but because of a down turn in business. It
was just a coincidence that you were also pregnant. NARRATOR: These people are involved in a dispute which they want to resolve, so they are here in a conciliation conference. My role here today is not to take sides or to try and determine the facts in Belinda’s complaint NARRATOR: Conciliation is a process that allows people to try and resolve a dispute in a way that is acceptable to both of them. The conciliation process is a very important process
in terms of giving the parties an opportunity, for the first time after a complaint,
to meet and to discuss the complaint and any issues they may have.
In that sense, it works extremely well. Yeah, well, conciliations are generally fairly
quick. They usually only go for a few hours.
This is different to a court case, which can be long and drawn out.
They’re also informal, so legal jargon is kept to a minimum,
and the conciliator can make suggestions for the parties to consider. There’s no cost. They don’t need to be legally represented. It’s not a legal process. It’s not like going to court. It’s fairly informal. We don’t make any determinations as to whether or not discrimination has occurred. So it’s really a process
that encourages the parties to come together to talk about the complaint and the issues
around the complaint. NARRATOR: The Australian Human Rights Commission exercises functions under federal human rights and discrimination law. These laws allow people from all over Australia to make complaints to the Commission. The Commission assists the person who makes a complaint and the person or organisation being complained about to resolve the matter
through a process called conciliation. The purpose of this program is to help those
involved in a complaint to understand and prepare for conciliation. Let’s start at the beginning What types of complaints are made to the Commission? David, who works as a storeman, complained
that his co-workers treated him unfairly because of his racial background. David said that they called him racist names,
made fun of him in front of customers and told jokes that he thought were racist and
offensive. David said that when he complained to the
manager he was not given any overtime and was eventually fired. Jane is 17 and works at a local bakery on
the weekends and school holidays. She said that her male supervisor continually asked
her out on dates, made sexual comments to her and tried to kiss and touch her. Jane said that she quit her job because of
the way her supervisor treated her. Peter, who has a disability and uses a wheelchair, complained that he was being treated unfairly as he was not able to go to see movies at
his local cinema because the only way to enter the cinema was by going up a set of stairs. When a complaint is made to the Commission and it is about something that the Commission can deal with, the Commission will contact the person making the complaint – the complainant –
to discuss the matter and may ask them to provide further information in relation to
the complaint. Generally, the Commission will also contact
the person or organisation the complaint is about – the respondent – to get their
side of the story. In many cases the Commission will ask the
people involved in the complaint to participate in conciliation. Conciliation is a process in which an officer
from the Commission, the conciliator, helps the complainant and the respondent, the
parties, to share their views about the complaint and to try and resolve the complaint
in a way that is acceptable to both of them. Conciliation is conducted in private and what
is discussed and negotiated in conciliation cannot be used in any later court action regarding the complaint. The conciliation process can be conducted
in different ways. The most common form of the conciliation process is a face-to-face meeting. And at that conference,
we just encourage the parties to put forward their point of view,
we might discuss some of the issues that are pertinent to the complaint,
and then we’ll begin the process of discussing resolution of the complaint. Where the parties aren’t in the same State
or in the same city, we’ll travel to wherever the parties are –
that might be regional or interstate – and we’ll conduct the conference in a neutral
place. NARRATOR: It is also possible for the process to be conducted in a shuttle form. In this process the conciliator conveys messages and resolution proposals between the parties but the parties are not forced to talk directly
to each other. Conciliation can also be conducted by telephone. And that’s sometimes done where the conciliator will convey messages – have separate telephone conversations –
or we’ll have an actual tele-conference, with all the parties on the same line at the
same time. NARRATOR: What is the role of the conciliator? PAULA GONZALEZ:
Well, our role really is to help the parties to talk to one another.
Quite often, when they come to us, there’s sometimes an animosity,
quite a bit of anger between the parties – the relationship’s broken down.
So we act as an intermediary – we facilitate discussions.
We also help the parties to think about the strength and weaknesses
of their cases, and give them advice about other matters that may have been similar and settled as well. Complainants and respondents are able to have
a support person, such as a friend or family member, attend a conciliation conference with them. They may also have advocates such as a union
representative, a business advocacy group, a disability advocate or lawyer attend with
them where the conciliator is of the view that this is appropriate. The conciliator will also arrange for interpreters where necessary. PAULA GONZALEZ: Hi, Belinda. How are you? I’m assuming you got that letter setting down the conference for 17 September. Yes, I have. OK. Look, I just wanted to have a chat about
the process on the day. NARRATOR: Where a face-to-face meeting is to be held, the conciliator talks with the parties and/or
their advocates to confirm the date, place and time for the conference and to also discuss who will
attend. Although there will be an opportunity for
you to discuss some of the issues surrounding
the complaint, it’s really about trying to resolve the complaint, and on the day if possible. Yeah, yeah, Paula. That was made pretty clear in the letter that you sent out. So I just wanted to talk to you about any of the ideas that you might have had to resolve Belinda’s complaint. NARRATOR: The conciliator will also talk with both parties to get their ideas about how they think the complaint may be
resolved. Perhaps speak to your advocate as well and
get some advice. Now that that side is worked out,
what we really need to start thinking about is how things are going to end next week at
the end of the conference. Right. You’ve got in mind a scenario that you get exactly what you want.
On the other hand, John doesn’t think he’s done anything wrong.
So what we have to do through this process is somehow reach an agreement.
That is, if we don’t want to go to court and continue. So basically, what we need to do is compromise. ZANA BYTHEWAY: As a complainant advocate,
it means that I’m there to support and advise the client
throughout the conciliation process. Additionally to that, I advise the client
of the various outcomes that are possible in the conciliation process.
These outcomes may include job reinstatement, they may include compensation for loss of
wages, recognition of hurt and embarrassment, and sometimes it can be just as straightforward as an apology. John, before the conciliation, it’s important we have a talk about what you want to say and what issues you want to discuss during
the conciliation. So I do get a chance to respond –
i get a chance to have my own say? KIM HEATH: Yeah, you will have an opportunity to respond. What you also need to think about before the day, in preparation,
is ways that the matter might get resolved what options, I guess, might be acceptable to the company
and how far you might be willing to go to compromise to resolve the complaint. KIM HEATH: Well there are a number of outcomes.
An employer could concede that something probably shouldn’t have happened and they will agree
to take corrective action or some other action. paying compensation doesn’t always form
part of the outcome. Alternatively an employee may agree the problem doesn’t amount to
discrimination or perhaps it doesn’t actually exist and might agree to withdraw their complaint. They should have in mind their point of view
that they would like the respondent to hear, but they should also come prepared to negotiate some sort of outcome. NARRATOR: On the day of the conference the process usually starts with the conciliator having separate meetings with both parties to talk about the process and to answer any questions they may have. The conciliator starts with an opening address
which outlines the reason for the conference, the role of the conciliator, how things will
proceed and any ground rules. My role here today is not to take sides
or to try and determine the facts in Belinda’s complaint,
but to try and help the parties talk to each other about the issues in the complaint and help you to come to some sort of resolution.
I’d ask that we treat each other with mutual respect, that we listen when the other person’s speaking and not interrupt them.
And if at any time during the process, you need to have any breaks
to talk to each other or consult with one another,
just let me know, OK? NARRATOR: In the next phase, parties give their statements. This is an opportunity for the complainant and respondent to say how they see things. PAULA GONZALEZ: OK, Belinda, could you just start by telling us why you made the complaint and how you see things? Yeah, well, as you know, I really liked my job with the company
and I feel that I did a good job. John, when I told you that I was pregnant,
I felt that you weren’t very happy about it and I couldn’t believe that just a few weeks
later I was sacked. I really needed to work for as long as I could
to get some money and I just feel that this is really unfair.
(Sighs) OK. Alright, thanks for that, Belinda.
John, would you like to tell us how the company sees things? Thanks. Well, Belinda, there are some things we agree on. But we also disagree on a number of things.
Now, while we agree you were dismissed, this was not because you were pregnant,
but because of a downturn in business. It was just coincidence that you were also
pregnant. Look, I’d like to take this opportunity to
explain to you a little bit more about the economic position
of the company. PAULA GONZALEZ: Alright, perhaps just before you do that, John, I noticed that there was some confusion about what may have led the company… NARRATOR: The conciliator may then identify some areas for further discussion JOHN: Belinda one of the things you raised
in the more detailed account of the things you said I did… NARRATOR: In many cases the parties do not agree about the facts and both sides may have evidence to support their version of events. But, disagreeing about facts won’t prevent
you from trying to resolve the matter and put it behind you. The conciliator may ask to meet with the parties separately. The parties may also ask the conciliator for
a break to talk with their support people or advocates. The next phase of conciliation is to negotiate. Belinda, you had some ideas about what you would like to resolve the complaint. Can you tell us about those? Yeah, sure. Well, as I said, I still think…
NARRATOR: Negotiation usually starts with the complainant putting his or her ideas
to the respondent. BELINDA: Um, as you know, I wanted to continue working up until a few weeks before the baby was due, so I would be prepared to withdraw my complaint if the company would agree to pay me the money that I would have earned for this time. Um, also, um, I would like the company
to agree to review its, um, anti-discrimination policy,
as this policy is important to ensure that all workers get a fair go. Um, I’ve tried to work out how much this would be… ADVOCATE: Yeah, look, based on the period of time that elapsed
between the termination of the employment and when Belinda had the baby,
it’s about five months pay that she’s missed out on. So we’d be looking for full compensation for that period NARRATOR: Negotiations may continue face-to-face with the parties taking some private breaks to consider the proposals and talk to the conciliator before getting back together. PAULA GONZALEZ: OK, so are you OK for me to take these proposals back to Belinda now? Yep. OK. Alright. NARRATOR: Alternatively, negotiations may be conducted with the parties in separate rooms and the conciliator conveying proposals and responses between the parties. OK, Belinda, I’ve had a talk to John
about your proposed terms of settlement, and at this stage, um, what he’s thinking
of doing is offering you an amount for loss of income
– six weeks. NARRATOR: If the parties are able to reach an agreement, the conciliator will assist the parties to put this agreement in writing. If the parties
have legal representatives, their representatives may wish to draft a written agreement. The terms of the agreement usually include
‘no admission of legal liability’ by the respondent. The parties may also agree to keep the terms
of settlement confidential. If the parties cannot reach agreement on the day of the conciliation conference the conciliator may suggest that the parties take a few days to consider the various proposals that have been discussed before making a final decision. Where it is clear that the parties will not be able to come to an agreement, the President of the Commission will terminate the complaint and provide the complainant with a Termination Notice. Once issued with a Termination Notice the complainant may apply to the Federal Court of Australia or the Federal Magistrates Court for the court to hear and determine the allegations in in the complaint. The complainant has 60 days to make an application to the court. The conciliation process of the Australian Human Rights Commission is a fair, inexpensive and informal way to resolve complaints. For further information about federal human rights and discrimination law and the conciliation process contact the Complaint Infoline on 1300 656 419. Calls to this service cost the same as a local call regardless of which part of Australia you are calling from. Information about the law and the complaint process is also available in other languages. Information and examples of conciliation outcomes can be downloaded from the Complaints page of the Commission’s website www.humanrights.gov.au for the parties to consider.
There’s no cost. They don’t need to be legally

Stephen Childs

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