Member conferences in sexual harassment dispute cases

After we receive an application to deal with a sexual harassment dispute and the responses from the other people involved, we may decide to hold a Member conference.

A Member conference is a conference held by a Commission Member. The Member will try to help the parties to resolve the sexual harassment dispute. Member conferences are informal. They must be conducted in private if the application is not only for a stop sexual harassment order.

A Member conference is a chance for the parties to hear each other’s perspectives and to identify and discuss issues in dispute. It can help discover where there is common ground and what steps might be taken to resolve the dispute.

The Member’s role is to try to resolve the dispute. They can do this through conciliation, mediation, making a recommendation to the parties or expressing an opinion.

The Member may make decisions about how the case is conducted, such as who can participate in the conference. They will also decide what is needed to help the people involved feel safe and supported. This could include keeping the parties separate using different in‑person or online meeting rooms. The Member will not usually decide the case in a Member conference.

If we decide to hold a Member conference, we will tell these people the date and time of the conference:

• each applicant, union or employer organisation that has applied to us
• each respondent to the application
• the applicant’s employer or principal (if any)
• each employer or principal of a respondent to the application
• any lawyer, paid agent or other representative of a person involved in the case.

You can ask us to change the time or date of a Member conference by contacting us in writing. You should ask us as early as possible before the scheduled date. The contact details will be on the notice we send you.

You need an important reason to change (adjourn) the conference to a different day or time. You must send a copy of your request to the other people in the case.  If your request contains sensitive personal information, contact us about keeping a case confidential before you send it.

We may not agree to change the time or date. If we do not, you will still need to attend the conference.

A Commission Member will manage the conference and will help the people involved in the dispute try to resolve the issues together.

The Member is independent. They will review the documents in the case and may make decisions about how to run the conference. This can include where and when the conference will be, whether it is online or in person, or whether a person can have a legal representative.

During a Member conference, they may express an opinion or make a recommendation to resolve the dispute.

Member conferences can be different, but usually work like this:

1. The Member explains their role and how the conference will run. 
2. Each party explains their perspective, which might include:
   • what happened
   • how they think the case could be resolved.
3. The Member may ask questions and speak with the people involved in the dispute, either together or separately.
4. The Member will try to help the parties to reach an agreement. To do this, the Member will identify common ground and may offer guidance.
5. The parties involved can choose to resolve a case in any way they think will help. They can find flexible solutions that are relevant to the case. If the parties reach an agreement, the Member can help them record the agreement in writing. This might involve signing terms of settlement.

See Outcomes of a Member conference for more information.

A Member conference works best when everyone is well prepared. 

Tell us if you need help for a Member conference

Let us know as soon as you can if you need an interpreter or if you have any other special needs.

Bring the right things with you

Bring a pen, paper and any relevant documents with you.

Read the application and the responses of each person, then write your notes. Make sure you include:

• which issues are most important to you
• how you think the issues could be resolved
• the outcomes you hope to achieve
• your ‘best case’ and ‘worst case’ outcomes.

Bring a representative or support person

You don't need a lawyer or paid agent to represent you at a Member conference.

If you have a representative, they may need to ask permission to appear at the conference.

Instead, you can bring a support person. A support person does not usually take an active part in the conference. The support person is often a friend or family member.

Have the right approach

It helps to stay calm and keep an open mind in the conference. Try to:

• be flexible and prepared to consider all options the other parties suggest
• be ready to listen and consider other points of view
• focus on the issues and future work relationships.

It’s normal to feel worried and to disagree about some issues. The Member will help you and the other people involved in the case stay focused on resolution.

At a Member conference, the parties involved can choose to resolve the case in any way they think will help. They can find flexible solutions that are relevant to the case.

If the parties reach an agreement (settlement), the Member can help them record the agreement in writing. This might involve signing terms of settlement.

Sometimes the people involved might want to prepare their own agreement based on the agreed outcomes.

Confidentiality clauses

The parties may want to keep some or all of their agreement confidential (private).

Respect@Work has Guidelines on the use of confidentiality clauses in the resolution of workplace sexual harassment complaints.

The guidelines are for applicants, unions and employer associations, employers, respondents, legal practitioners and anyone else involved in the process of resolving workplace sexual harassment disputes.

The guidelines recommend that confidentiality clauses in terms of settlement should be:

• clear, fair, in plain English and translated or interpreted where necessary
• considered on a case-by-case basis (about whether they should be included and what they should say), and
• limited in scope and duration.

The Respect@Work guidelines also recommend that:

• confidentiality clauses should not stop businesses and organisations from working to fix larger (systemic) issues and providing a safer workplace
• the applicant should have access to independent support or advice to make sure they understand the settlement or agreement, including any confidentiality clause
• discussions about settlement or agreement terms should try to protect the wellbeing and safety of applicants, and be trauma-informed, culturally sensitive and intersectional.