Conciliations in the fair work system; jurisdictional issues

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There is no obligation upon a party to an unfair dismissal or general protections case which is being managed in the early stages by the Fair Work Commission to participate in a conciliation conference. Indeed the Fair Work Act makes it clear that it may convene a conference in a general protections claim not involving a dismissal (termed in the Act a non-dismissal dispute) if the parties to the dispute agree to participate (sec 374) but must deal with a dismissal dispute under the general protections “other than by arbitration” which in practice means that the Commission will arrange a conciliation conference which is managed by a Commission conciliator. However there is no legal penalty if a party refuses to participate.

Similarly, although rare, an employer may simply refuse to participate in an unfair dismissal conference, and although Rule 19 of the Fair Work Rules 2013 provides that

“ A respondent to an unfair dismissal application must lodge with the Commission a response to the application, together with any supporting documents, within 7 calendar days after the day on which the respondent was served with the application”, there is no sanction imposed upon an employer which fails to do so and likewise there is no sanction upon an employer who simply refuses to engage in conciliation.

It is quite common though for an employer to decline to participate in conciliation if the employer contends that the Commission lacks jurisdiction to deal with a claim, for example on the basis that the employee was not dismissed (for example that the employee resigned)  or that the employee is not protected from unfair dismissal because inter alia  he or she has not been employed for the minimum employment required, or is a true casual employee or whose rate of earnings exceeds the high income threshold. On the other hand many employers will decide to engage in conciliation even where the employer maintains that it has a jurisdictional defence; such a decision is usually made on tactical grounds.