Step by step guide - After conciliation

If you and the employer can agree about how to end the dispute, the Fair Work Commission member (the Commission member) will suggest you put this agreement in writing. You can either use a Deed of Release or a Terms of Agreement.

The Commission may provide you with a Terms of Agreement document to complete and sign. Sometimes the employer may ask to use a Deed of Release instead of Terms of Settlement/Agreement. A Deed of Release is another type of legal document that sets out how you will end the dispute.

Sample: Deed of release.

The Terms of Agreement or Deed of Release will usually settle all claims between you and the employer. Before you sign anything, you should be sure that you are not owed any other money or entitlements by your employer. For example, annual leave payments, underpaid wages, long service leave or money for injury claims. If you are owed money or are considering making a claim about an injury, it is possible to write a settlement agreement that only settles the general protections claim and leaves you the option of making other claims.

 You should get legal advice before signing Terms of Agreement or a Deed of Release so that you understand how it will affect you. You should also get advice about whether the Terms of Agreement or Deed of Release will affect your rights to make other claims

Once an agreement has been made and both sides have done what they agreed to do, you should file a Notice of Discontinuance. This tells the Commission that you do not want to continue with your application. The Commission may refund your application fee if your case settles.

You should not file a Notice of Discontinuance (a form that ends your case) with the Commission until your employer has done what they agreed to do in the settlement agreement (for example, paid you the agreed settlement amount).

If your employer does not do what it agreed to in the agreement, it is possible to take steps to enforce the agreement. For more information, see After the case below.

If you and your employer can't come to an agreement, Fair Work Commission (the Commission) must issue you with a certificate. The certificate is proof that you went to the mediation or conciliation conference and confirms that you were not able to settle the case.

 If the Commission member believes that you don't have a good case, it doesn't have merit, or it doesn't have 'reasonable prospects of success', they should tell you. Sometimes they will write this on the certificate. If the Commission member tells you this or has put this on the certificate, you should get urgent legal advice before filing any further claims.

Once you have your certificate, it is possible to:

• ask the Commission to arbitrate (a type of hearing) if you and your employer agree
• apply to the Federal Court of Australia or Federal Circuit and Family Court of Australia.  

You must apply within 14 days of the Commission issuing the certificate.

Both the Commission and the court can make orders:

• stopping your employer from doing things that breach laws about general protections
• for reinstatement (getting your job back or giving you a similar job)
• for compensation.

The Federal Court of Australia or Federal Circuit and Family Court of Australia can also make orders that your employer pay a fine in some cases.

For more information about starting a court case, see Going to the Federal Circuit and Family Court of Australia.

If you want the Commission to hold an arbitration hearing and decide your case (and your employer agrees), you will need the following form:

• Form F8B: notification of agreement - consent arbitration form.

You can get copies of the form from:

• the Fair Work Commission ​office in your capital city
• the Fair Work Commission ​website, or
• the Fair Work Commission phone line on 1300 799 675.

Instructions:  Form F8B - Notification form – general protections – consent arbitration

Sample:  Form F8B - Notification form – general protections – consent arbitration.  

You should lodge the form with the Commission within 14 calendar days of the day the Commission issues the certificate.

You can lodge the form:​

• online - using the Online Lodgment Service (OLS) on the Fair Work Commission website.
• by email, fax or post - You can send your completed form by email, fax or post to your nearest Fair Work Commission office, or
• in person at the Fair Work Commissio​n office in your capital city.

 You should get legal advice before consenting to having your case heard by the Commission.

The Fair Work Commission will notify you of the date for a hearing and what needs to be done before the hearing, such as filing and serving witness statements and evidence.

After conciliation, if you and your employer can't come to an agreement, the Commission must issue you with a certificate. The certificate is proof that you went to the mediation or conciliation conference and confirms that you were not able to settle the case. 

If you have a certificate from the Commission, and you want to continue your case, youmay be able to apply to the:

• Commission for an arbitration hearing if you and your employer agree, or
• Federal Court of Australia or the Federal Circuit and Family Court of Australia to start a court case.

You must apply to the Commission, the Federal Court of Australia or the Federal Circuit and Family Court of Australia within 14 days of the Commission issuing the certificate.

For more information about going to the Commission for an arbitration hearing, see Arbitration.

For more information about starting a court case, see Going to Federal Circuit and Family Court of Australia.