Commentary on Sections Section 12: Conciliation before bringing of proceedings
48.Article 88 of the Fair Employment and Treatment Order is drafted in similar terms to Article 20 of the Industrial Tribunals Order. It specifies the circumstances in which the LRA is obliged, or has the power, to offer conciliation. Paragraph (2) of Article 88 applies to conciliation in situations where a person could bring proceedings before the Fair Employment Tribunal, but has not yet done so. It provides that where conciliation is requested, the LRA conciliation officer has a duty to attempt to facilitate the parties in reaching a conciliated settlement to the dispute (where both parties have made the request), or (if only one party has made the request) to do so where there is a reasonable prospect of success.
49.Section 12  makes amendments to Article 88 in respect of LRA conciliation in fair employment cases which are similar to those made in respect of other jurisdictions by section 8. It replaces the obligation to assist the parties described above with a discretionary power to conciliate in a pre-tribunal dispute without requiring the LRA officer to justify the reasons for his or her decision as to whether or not to offer conciliation. The intention of the amendment is to afford the Agency complete discretion as to how it will operate its pre-claim conciliation services.