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