Telephone Conciliations at Fair Work Australia

Telephone Conciliations at Fair Work Australia To: Bernadette O Neill, Director Unfair Dismissals, Fair Work Australia 18 August 2010 Queries regarding this submission should be directed to: Contact person Francesca Harrison Ph (03) 9607 9389 Email fharrison@liv.asn.au Law Institute of Victoria (LIV). No part of this submission may be reproduced for any purpose without the prior permission of the LIV. The LIV makes most of its submissions available on its website at www.liv.asn.au

Table of Contents Introduction... 3 Disadvantages... 3 Inefficiency and delays... 3 Client dissatisfaction... 3 Difficulty negotiating effectively over the phone... 4 Lack of engagement and unenforceable verbal agreements... 4 Inability to assess witnesses... 4 Lack of visual aids... 4 Influence of undisclosed parties present during conciliation... 5 Unreasonable time limitations... 5 Lack of commitment to serious litigation... 5 Unrepresented parties... 5 Inconvenience... 5 Lack of control or direction from the conciliator... 6 Increased cost... 6 Benefits... 6 Convenience.... 6 Success rate... 6 Avoids confrontation in sensitive matters... 6 Parties owning the outcome... 6 Findings and Recommendations... 7 Page 2

Introduction The Law Institute of Victoria (LIV) Workplace Relations Section has been monitoring the process and experience of telephone conciliations at Fair Work Australia (FWA) in relation to unfair dismissal cases and other matters over the last 12 months. We understand that FWA has recently commissioned research in the form of a national survey of participants and their representatives, to examine participants experiences with and views about the unfair dismissal conciliation process, as well as the information and assistance that FWA provides to parties and potential parties about the process. In light of this current research, the LIV believes it is timely to offer FWA the views and experience of LIV workplace relations practitioners and their clients, and suggests that this valuable insight be taken into consideration when FWA compile and assess the current research, and identify necessary adjustments to the telephone conciliation process. Disadvantages The following issues have been identified and reported by LIV practitioners in the course of participating in FWA telephone conciliations: Inefficiency and delays Telephone conciliations can be impractical due to phone issues such as engaged lines and parties not answering calls. The system can be extremely time consuming, particularly where there are multiple parties/participants in separate locations and the conciliator has to call each party separately to discuss issues and offers. LIV members have reported delays where the parties and their representatives are linked in to the conciliation via telephone from different locations. If the representatives have not taken detailed instructions prior to conciliation, there can be significant delays while the parties consult with their representative via separate calls. Following discussions, if the matter settles, it is reported that there is a further significant delay while the parties communicate back and forth via the conciliator over the terms of settlement. LIV members report that this issue would be resolved more efficiently if the parties and their representatives were in the same or nearby rooms. Client dissatisfaction LIV practitioners have consistently reported that telephone conciliations are dissatisfying for their clients as they may not feel they have had their "day in court". It is of concern that this is not necessarily reflected in FWA s reported telephone conciliation success rate, which is based on the rate of matters that settle after conciliation. A statistical analysis should be conducted regarding this issue. Anecdotal evidence from practitioners indicates that their clients have expressed dissatisfaction and disappointment with the process of telephone conciliation, explaining that it was not what they expected and they did not feel that they had an opportunity to properly engage with the other side nor derive the full benefits of the conciliation process. LIV practitioners have supported this evidence with experiences where the representative calls in to the conciliation on behalf of a respondent, having been instructed to only contact the respondent on the phone for instructions if needed, whereas usual practice in a face to face conciliation conference would require the respondent or an instructor, as well as a representative, to be present. In regards to engaging with FWA, practitioners have reported clients wanting to show a conciliator their documents in person despite the matter having been resolved. Page 3

Difficulty negotiating effectively over the phone It can be difficult to negotiate effectively over the phone (especially where there are multiple parties involved) as representatives have to be constantly checking who can and can t hear their conversation, which causes obvious delays and frustrations. It has been reported by clients that on occasions, a conciliator has intended to "block" one party from listening in to a private discussion between themselves and one of the parties, but the party is uncertain as to whether the conciliator has inadvertently failed to actually block out the other party from listening to the discussion. These issues would clearly be avoided if the parties and conciliator were holding face-too-face discussions. Lack of engagement and unenforceable verbal agreements Telephone conciliation can pose a twofold problem. The first is that if the parties do not feel effectively engaged with the process, they will not take the settlement seriously. The second is that if the parties do not take settlement seriously, then they are more likely to renege on a verbal agreement. This is where the nature of a verbal agreement via the telephone (which may not be transferred into a document until a later date, if at all) versus a written and signed agreement is problematic. LIV practitioners report instances where matters have been resolved via a verbal settlement agreement made at conciliation, but parties subsequently refuse to sign terms of settlement or comply with the verbal agreement. In regards to unfair dismissal matters, a number of clients have reportedly agreed during conciliation to be reinstated into their previous position, but have been returned to different positions and conditions, and as nothing has been signed, it becomes difficult to establish and enforce the terms of the verbal agreement. Practitioners suggest that these instances place both clients and representatives in difficult positions and there would be less opportunity for this to occur within the dynamics of a face to face conference where parties are more actively involved and accountable, and a settlement agreement was immediately signed. There are also reported examples of parties breaking off the conciliation over the phone when they have not received a relevant document or are not obviously engaged with the process and wish to delay. This obviously causes significant inconvenience for the other parties and their representatives, particularly where there has been time set aside for the call, and travel involved. It is suggested that it would be harder to break up a conciliation if all parties were present and documents could be simply handed over to the relevant party at the time. Inability to assess witnesses Conducting discussions via phone seriously impacts the ability to assess statements made by parties involved in the matter. This process is made more difficult by the inability to assess the demeanour of persons who may be witnesses, whereas a face to face conference is often used as an opportunity to gage how the various parties would be likely to appear, in particular as witnesses on both sides. Lack of visual aids While the lack of direct contact may be preferable for parties who do not wish to face each other (for example, where intimidation may be a problem), in other cases body language can be a powerful tool to get a proper "sense" of the other side, in particular the impact of submissions or evidence raised during the conference. LIV practitioners have suggested that it is easier for either party to make bold assertions, callous remarks or be untruthful when they do not need to look anyone in the eye or face direct consequences of those actions. Page 4

Influence of undisclosed parties present during conciliation LIV practitioners have expressed concern over the inability to determine whether or not persons not directly involved in the matter are listening in to the telephone conciliation conference without disclosing their presence, and whether these persons could influence the outcome of the conciliation or misuse information that is discussed in confidence. Unreasonable time limitations It is generally agreed by many LIV practitioners that FWA imposes unreasonable time limitations on conciliation conference calls, and that this disregards situations where multiple applicants have been joined in one proceeding, as well as matters which are complex and likely to require more time. Practitioners recognise that it is beneficial for FWA to allocate a specified period for phone conferences as this holds parties accountable and encourages parties to focus. It is simultaneously recognised that the lack of flexibility given to allocated time slots can be severely detrimental to all parties involved when a conciliation is genuinely making progress, but the conciliator has to end the discussion at a particular time, regardless of the situation. Practitioners have reported that the only way to continue the conciliation is for the conciliator to juggle between phone conciliations which is obviously inappropriate in many cases, and likely to leave parties feeling dissatisfied with the process and that their matter is unimportant. It is reported that, as FWA protocol discourages a second conciliation conference, it is likely that if the matter is not settled in the time allocated, unless the conciliator is lenient, the parties will have to continue discussions independently. Lack of commitment to serious litigation A telephone conversation lacks any great sense of gravitas and parties do not get a sense of what it might be like to attend and give evidence at Fair Work Australia (FWA). On the other hand, face to face conciliation allows the parties to be directly charged with the issues, the merits and the risks and forces the parties to focus. For these reasons, practitioners report that a face to face conciliation facilitates settlement while a telephone conciliation is only likely to settle cases in which the advantages of settlement are obvious. Unrepresented parties It is reported that there seems to be a great amount of pressure on conciliators to settle matters which may raise issues where there is an unrepresented party or parties. This may create situations where unrepresented and vulnerable parties are unwillingly persuaded into settling, but then renege on the verbal agreement at a later stage. LIV practitioners feel the process is unsuitable for unrepresented applicants and causes stress for those in a conciliation where the respondent is represented. Inconvenience If clients are to be able to directly instruct their representative during the conciliation, it generally requires clients to attend the representatives office. This negates the convenience of a telephone conciliation as the client could just as easily attend at Fair Work Australia The fact that parties are in separate locations removes the opportunity to take parties through documentation in person or provide documents quickly on an ad hoc basis. This prevents any unplanned progress being made. Practitioners also report that telephone conciliations prevent any opportunity for face to face discussions between representatives without their clients present, which has been a useful tool in the Page 5

past where there are sensitive issues or the relationship between the parties is aggressive, heated or unbalanced. Lack of control or direction from the conciliator LIV practitioners have reported that because of all the matters discussed above, the conciliator is less likely to be able to effectively direct proceedings and control the process over the phone (not necessarily for lack of trying) and thus their experience is that the conciliator often steps back and does not point out the strengths and weaknesses in the matter to assist the parties to come to an agreement. It is suggested that because of the nature of the phone conciliations, the conciliator lacks active involvement and ownership of the process and that, on occasions, they appear to be following a process and going through the motions without a real commitment to the content of the matter. Increased cost Some practitioners have suggested that the process of telephone conciliations increases costs as all relevant information needs to be prepared in writing ahead of time. This effectively means there are more documents required as the parties cannot rely on ad hoc discussions as they would in face to face conciliation. Benefits The LIV acknowledges that FWA's telephone conciliation process has been beneficial in certain circumstances. Examples of those benefits which have been identified and reported by LIV practitioners in the course of participating in these conciliations are set out below: Convenience As well as the fact that phone conferences can be listed quickly, the process of conducting conciliations over the phone can streamline processes and require less travel time in some instances which is convenient for parties. In some cases telephone conciliation can make it easier to settle cost effectively in a jurisdiction where the margins of the claims are small to begin with. Success rate Practitioners recognise that the success rate of telephone conciliations appears to be the same, if not better than face to face conciliations. However, they suggest that this rate may not be representative of client satisfaction, or representative of conciliations that fail or are reneged on at a later date. Avoids confrontation in sensitive matters The process of conducting the conciliation via the telephone is preferable and less stressful for some parties who actively do not want to see the other party, for example in sensitive matters where there may be issues of intimidation, or if there is an unrepresented party who feels vulnerable. When these parties are in a more relaxed and less stressful atmosphere, LIV practitioners expect that they are more likely to make sensible decisions. Parties owning the outcome It is suggested that the lack of conciliator involvement in telephone conciliation encourages parties to own the process which means they are more responsible for the outcome. Page 6

Findings and Recommendations In light of FWA s current research, the LIV has taken the opportunity to propose some changes to the current telephone conciliation process across all matters, and not limited to unfair dismissal. The LIV proposes that in order to improve the conciliation process across all matters, the default position for all conciliations at FWA should be held face to face. We suggest that parties be given an opportunity to nominate,, whether they would prefer a telephone conciliation, and a brief explanation as to why it would be more appropriate or convenient in their case. In the case of the Applicant, this should be done at the time that the Application is lodged. The Application itself should contain an additional section for this and make it clear that: the matter will proceed to a conciliation in person unless FWA considers that a telephone conciliation would be preferable taking into account any reasons that either party may provide in support of a preference for a telephone conciliation; if one of the parties does not express any preference at the time that the Application is made FWA will make a determination taking into account the preference of the other party only. The Notice of Listing of a Conciliation Conference should then: specify the date and time for hearing of the conciliation conference (without indicating if it will be conducted over the phone or in person); indicate what the Applicant's preference is (if any); give the Respondent an opportunity to set out its preference by a particular date ("the Nominated Date") and make it clear that: the matter will proceed to a conciliation in person unless FWA considers that a telephone conciliation would be preferable taking into account any reasons that either party may provide in support of a preference for a telephone conciliation; if the Respondent does not express any preference by the Nominated Date, FWA will make a determination taking into account the preference of the Applicant only (if any). At the Nominated Date, FWA can then assess whether the matter is suitable for telephone conciliation, (irrespective of whether or not both parties have expressed a preference), taking into account the following; whether both parties agree to telephone conciliation; their reasons for seeking either method of conciliation whether telephone conciliation would be more beneficial for parties e.g. - where it will result in a substantial inconvenience to have the parties physically attend at the conciliation (due to geographical location, costs or transportation issues). Once it has made this assessment, FWA will then notify the parties whether the conciliation will proceed in person or by way of telephone. Naturally, if FWA adopts the above proposals necessary amendments will need to be made to FWA's Rules and Forms. Page 7

Additionally, if a matter settles verbally via telephone conciliation, the conciliator should ensure as far as possible that Terms of Settlement are signed by the parties, and that each party receives a copy of the signed terms via fax or email as soon as practicably possible. This would help avoid the problems created when parties fail to fulfil the terms of settlement or renege on agreements entirely. The LIV also encourage FWA to undertake a broader inquiry into the effectiveness of telephone conciliation across all relevant matters, in addition to the research undertaken on conciliation in unfair dismissal matters. Page 8