If you’re an employer or an employee involved in a workplace dispute, the Fair Work Commission (FWC) conciliation conference is often the first formal step in resolving the issue.
Whether it’s an unfair dismissal claim or a general protections dispute, conciliation offers a low-cost, informal, and non-adversarial opportunity to settle the matter without going to a full hearing.
But what actually happens at a Fair Work conciliation? How should you prepare? And what can you expect during and after the conference? In this article, our employment lawyer breaks it all down, with real-world examples, practical tips, and answers to common questions.
Key Takeaways
Fair Work conciliation is an informal, confidential conference to help resolve workplace disputes early.
It applies to unfair dismissal, general protections, and enterprise bargaining disputes.
The process is led by a conciliation officer from the FWC.
Most cases are resolved at this stage without going to a formal hearing.
Both employers and employees benefit from preparation and professional representation.
What is a Fair Work Conciliation Conference?
Conciliation is enabled under the Fair Work Act 2009, which empowers the Commission to help parties resolve workplace disputes before proceeding to a formal hearing.
A conciliation conference is an informal dispute resolution process facilitated by a conciliation officer (sometimes a lawyer or industrial relations expert) from the Fair Work Commission.
The goal is simple: help the parties reach an agreement without the need for a formal arbitration or hearing.
Conciliation typically occurs with:
General protections claims (involving dismissal or adverse action)
Some enterprise agreement disputes
Fair Work Conciliation: Step-by-Step Breakdown
Conciliation through the FWC is designed to be informal and accessible, but knowing what to expect can significantly improve your outcomes, especially if you have legal representation.
Here’s a detailed step-by-step guide:
1. Before the Conference
Once your application (e.g. for unfair dismissal or general protections) is accepted, the Fair Work Commission will issue a notice of conciliation, usually scheduled via telephone or Microsoft Teams.
You’ll likely receive:
The date and time of the conference
Dial-in instructions and case number
A deadline to submit your written submission, which outlines the core facts and issues
Tip: If you are legally represented, your lawyer will prepare and submit your statement and may request permission from the Commission to appear on your behalf. Representation is not automatic and you must apply, and the other party can object (e.g. if they are unrepresented).
2. Preparing Strategically
Whether you’re an employee or employer, preparation is key. This includes:
Reviewing key documents (e.g. employment contracts, correspondence, warnings)
Considering your best case, worst case, and walk-away position
Providing your lawyer (if you have one) with your minimum settlement instructions in advance
Remember, Conciliation conferences typically last up to 2 hours, though some settle earlier.
Note: If you’re represented, you don’t have to speak directly during the conference. Your lawyer will handle all negotiations, and only consult with you privately unless the conciliator asks for direct input (which is rare).
3. The Start of the Conference
The conference begins with:
Introductions by the conciliator
A brief outline of the process
Each party making an opening statement (either personally or through a lawyer), explaining their view of the dispute
This stage is typically joint, with all parties on the same call or virtual meeting.
4. Private Sessions (Caucusing)
After opening statements, the conciliator separates the parties into private virtual rooms (or places each party on a separate call).
From here:
The conciliator “shuttles” between the parties, sharing offers, counteroffers, and helping identify common ground
The discussions are strictly confidential and not disclosed to the other side without your consent
This phase is critical: The conciliator may provide a reality check on your position, discuss likely hearing outcomes, and guide both parties toward a resolution.
5. Negotiations and Settlement Offers
Throughout the conference:
Offers can be made verbally, then formalised later in writing
Parties are encouraged to be flexible and pragmatic
Your legal representative will negotiate for you and update you on new offers and strategy in real time (often via text or brief sidebar discussions)
Example: “We’ve been offered 8 weeks’ pay and a statement of service. Is that within your range?” As the client, you decide, but with your lawyer’s guidance, you can make informed choices.
During conciliation or settlement discussions, employers may offer different types of payments -understand the difference between ex gratia and severance pay before accepting any terms.
6. If the Matter Settles
If a settlement is reached:
The FWC conciliator can assist with drafting standard deed of release and settlement terms
Both parties sign the agreement, and the matter is formally withdrawn
There is no admission of liability unless agreed
Importantly, settlements are private and not published, which is often a key benefit for businesses seeking to protect their reputation.
If you’ve already signed a settlement but believe it was unfair or signed under pressure, learn how to set aside a deed of release and when this may be legally possible.
7. If the Matter Doesn’t Settle
If no agreement is reached:
The Commission issues a Certificate of Unresolved Dispute
The applicant can proceed to a formal hearing before a Commission member
Your legal team will then discuss next steps and costs for the hearing stage
Pros and Cons of Settling at Conciliation Conferences
Pros of Settling at Conciliation
Confidentiality: Settlements reached at conciliation are not published. This protects the reputations of both parties – especially important for employers concerned about negative publicity or public precedent.
Time & Cost Efficient: Avoids the expense and delay of a formal Fair Work Commission hearing.
Greater Control: Parties retain control over the outcome rather than leaving it in the hands of a Commission member.
Flexible Outcomes: Agreements can include things like compensation, statements of service, references, or agreed separation terms.
Less Stressful: The informal nature of conciliation is less adversarial than a court-like proceeding, often leading to quicker, more amicable resolutions.
Our employment lawyers can represent you at Fair Work and negotiate the best possible outcome.
Cons of Settling at Conciliation
No Formal Ruling: There’s no legal precedent or “vindication” and the matter is resolved privately, which can feel unsatisfying for some.
Perceived Pressure to Settle: Parties may feel compelled to settle early, even if they believe they would succeed at a formal hearing.
No Admission of Wrongdoing: Employers often require a clause denying liability as part of the settlement, which may be a sticking point for some applicants.
Settlement Limits: Compensation is often capped informally (e.g. generally under 26 weeks’ pay), and may not reflect full losses or emotional impact.
Fair Work Settlement Example: Performance-Based Dismissal
Scenario: A retail employee was dismissed after her employer claimed her performance was unsatisfactory. However, the employee had not received any formal warnings, nor was she placed on a performance improvement plan (PIP) or issued a performance intervention notice (PIN) before the termination.
During conciliation:
The employer maintained that the dismissal was justified due to ongoing performance concerns.
The employee argued the termination was harsh and procedurally unfair, as she was never given an opportunity to improve or respond.
Both parties were open to resolving the matter privately and avoiding a formal hearing.
Our team represented the employee at conciliation, helping her articulate the procedural issues and negotiate from a position of strength.
Outcome:
We successfully negotiated a settlement of 12 weeks’ pay.
The employer agreed to provide a neutral statement of service.
The claim was withdrawn, with no admission of wrongdoing by the employer.
This result protected our client’s rights while avoiding the stress, cost, and publicity of a full hearing.
For employers seeking to understand their obligations under workplace law, our guide to the Fair Work Act for employers outlines key responsibilities and compliance tips.
Frequently Asked Questions
What happens at a Fair Work conciliation?
A Fair Work conciliation is a private, informal process where the Commission helps employers and employees resolve disputes without a formal hearing.
Is conciliation mandatory?
Yes, for unfair dismissal and general protections dismissal claims. The FWC will not permit the parties to proceed to a formal hearing without first attempting conciliation.
Do I need a lawyer?
Legal representation is not required, but it can help, especially for employers or complex claims. A lawyer can help ensure that:
You understand your legal risks
You negotiate effectively
Settlement Agreements are properly worded
What happens if we settle?
A written settlement agreement is drafted and signed. The claim is withdrawn from Fair Work, and the matter ends there.
Is the process confidential?
Yes. Discussions and settlement terms are confidential, unless both parties agree otherwise.
Is the process confidential?
Yes. If the proposed terms are not acceptable to you and no agreement is reached during the conciliation, the Commissioner will note that no settlement was reached and that the matter can proceed to a formal hearing where the Commission will determine the outcome.
Whether you’re an employer or employee, conciliation is your best chance to resolve a dispute quickly and affordably. It’s not about who’s right or wrong – it’s about finding a solution both parties can live with.
