Conciliation: the why and the how
The Commission receives about 600 complaints a year, many of which are resolved through the Commission’s conciliation process. This is a unique process that is both confidential and impartial and which aims to enable the parties to work towards solving allegations of discrimination.
The Commission does not have the power to determine issues or make orders as in a court. It is required under the Equal Opportunity Act 1984 to investigate and attempt to conciliate allegations of discrimination it receives on the grounds and areas set out in the Act.
The conciliation process enables people to:
- talk about the complaint and look for ways to resolve it
- listen to the other side's version of events
- discuss issues openly, as nothing said within the conciliation conference can be used in court
- explore solutions without the restriction of set limits
- reach an agreement without an admission of liability
Who attends a conciliation conference?
Usually this is decided by the conciliator and will include:
- the person who lodged the complaint (the complainant) and they can bring along a support person, someone who is not involved in the complaint; and
- the person the complaint is about (the respondent) and this could be either an individual or a company representative, dependant on who is the named respondent. But whoever it is, it must be someone who has the authority to agree on a resolution.
If interpreters, or other assistance is needed, this will be arranged by the conciliator.
The conciliator is neutral in this process, they do not represent the interests of either party. The role of the conciliator is to:
- remain impartial
- encourage open discussion
- keep the meeting on track
- if necessary explain the Equal Opportunity Act 1984
- help prepare the conciliation agreement for sign off by the parties
The conciliator does not:
- take sides
- decide who is telling the truth
- decide if the law has been broken
- try to impose an outcome on either party, or try and force any form of agreement
How a complaint may resolve at conciliation
No two conciliation conferences are ever the same, so the outcomes will also vary and will depend on the individual complaint and the parties involved. Outcomes can include:
- an apology from the respondent is one of the most commonly recorded outcomes for a conciliated complaint.
- there may be some form of compensation for financial loss or injury to feelings
- a satisfactory explanation is received from the respondent
- the implementation of equal opportunity training programs
- an undertaking to cease whatever action was the subject of the complaint
- the introduction of changes to, or modifications of, discriminatory policies and practices
- the provision of a service that had previously been refused by the respondent, for example entry to an educational course or access to a shop or service
The complaint process is an impartial one that is set up to try and achieve an outcome that satisfies both the complainant and respondent before it becomes a lengthy, and sometimes costly, legal process before the State Administrative Tribunal.
The Commission's conciliation officers are accredited mediators, and while it’s not always possible to find a resolution, parties to a dispute often say the process of bringing the parties together for a frank and confidential discussion can be very helpful for both sides.
All matters that can’t be resolved through conciliation are reviewed by the Commissioner who then decides if the complaint should be referred to the State Administrative Tribunal, or dismissed if the evidence provided doesn't support the allegation.
If the Commissioner refers the complaint to the Tribunal, then legal representation can be provided to the complainant free of charge.
If the complaint has been dismissed the complainant still has the right to require the Commissioner to refer the complaint to the State Administrative Tribunal. If this happens the Commission provides the complainant with no legal support or assistance at the Tribunal.