The WorkCover conciliation process

The first step in the WorkCover conciliation process in Victoria is the lodgement of the WorkCover Conciliation form, previously known as the request for Conciliation form.

The form gets sent off to the Workplace Injury Commission who, once received (and if enough information is provided to do so), will schedule a conciliation

The rest of this page will explore the WorkCover conciliation process for an injured worker in Victoria.

Completion and lodgement of the conciliation lodgement form and pre conciliation

Concliation is the process whereby you can contest decisions made by the WorkCover insurer.

In order to initiate a WorkCover Conciliation, you’ll need to complete and lodge the Conciliation form.

The form should be lodged within 60 days from the date of the insurer’s decision. If the form is lodged outside 60 days, you’ll need to provide reasons for late lodgement.

This form will then need to be sent to the Workplace Injury Commission.

The Workplace Injury Commission, after receiving the form, will acknowledge receipt and then, shortly after will set the matter down for a conciliation.

Sometimes the Workplace Injury Commission will not set the matter down for a conciliation after receipt of the form.

Sometimes they require further information before doing so. An example of this would be if you didn’t provide a copy of the insurer’s notice when you lodged the conciliation.

They would ask you to provide further material and once they have received sufficient material they’ll set the matter down for a conciliation.

You’ll be notified, usually by email, of the date and time for the conciliation.

If you specified a representative on the conciliation form, the Workplace Injury Commission will send correspondence relating to the conciliation to both your representative and yourself.

The WorkCover insurer will also be notified of the conciliation.

Conciliation’s can be held either over the phone (which is the most common option) via video conferencing, or in person.

In the weeks, leading up to Conciliation, if you didn’t do so when you lodged the conciliation form, you should provide any material in support of your position to the Workplace Injury Commission.

If you have a representative such as a lawyer or Workcover Assist, they will usually handle this for you.

Sometimes the Workplace Injury Commission will send you documentation to sign that will allow medical material to be obtained from your treating doctors and health providers (the Workplace Injury Commission pays the cost of this medical material).

If you have a representative, before signing any material sent to you by the Workplace Injury Commission you should speak to your representative.
This is to ensure that there is no doubling up on the requesting of medical material.

Also, if you have a lawyer they may already have medical material on file which can be used rather than requesting new material.

Additionally, your lawyer may prefer to write to your doctor/s and health providers directly, rather than relying on a request for medical material from the Workplace Injury Commission. This might particularly be the case if you’re lawyer is intending to pursue lump sum compensation on your behalf at some point.

The WorkCover insurer will typically send to the Workplace Injury Commission a copy of the relevant documents and material that they used to make the decision that you are contesting.

The Workplace Injury Commission will then send all of that material to you and your representative.

You may receive a reminder from the Workplace Injury Commission as the conciliation date gets closer that any material needs to be provided by the conciliation date.

The Conciliation process

Here’s how the conciliation process works.

Whether the conciliation is occurring over the phone, via video or in person, the process is much the same.

The conciliator will introduce themselves and will provide a brief overview of the conciliation process. This may take only a few minutes.

Typically, the conciliator will ask the WorkCover insurer representative to speak first.

The WorkCover insurer representative will then explain the reason/s for the decision made by the insurer. Sometimes this involves them reading out the decision notice.

If points need to be clarified, the conciliator and/or you/your representative can ask the insurer to provide clarification at this point.

However, this is not the point to enter into lengthy discussions with the WorkCover insurer about the decision.

You or your representative will then be asked by the conciliator to outline the reasons as to why you disagree with the insurer’s decision.

If you have a representative, typically they’ll be asked to speak first.

Once they have had their say, you will likely then be asked whether you have anything to add to what has been said.

Once you and/or your representative have finished, the conciliator will then usually try and get the parties to discuss the matter.

The conciliator might ask one or both parties questions regarding certain aspects of the dispute.

This is when the discussion part of the conciliation is held.

You and/or your representative can at this point have discussions with the conciliator and the insurer.

Once this part of the conciliation has concluded, typically what then happens is the parties will go into private discussions.

You and if applicable, your representative will be in one group.

And the insurer representative (and in very limited instances, the employer) will be in the other group.

The conciliator will then go backwards and forwards between the groups, discussing certain aspects of the matter.

Offers and counter offers may be made and relayed. Other possible outcomes of the conciliation may be discussed with you.

If the matter resolves, then the conciliator will usually bring the parties back together and sum up what has been agreed and will thank the parties for their participation in the conciliation process.

If the matter has not resolved, the conciliator will still bring the parties back together and will confirm with the parties what the agreed next step is (eg: referral to the medical panel, genuine dispute certificate, progress certificate etc).

Note in terms of resolution of matters at conciliation, conciliation involves parties in dispute coming to an agreement – rather than the conciliator making a decision in relation to the matter.

In limited instances, the conciliator can ask that the insurer change their decision, but this is only in matters where their decision has no merit.

Once the conciliation has concluded, you’ll be sent usually via email what’s called an outcome certificate which confirms in writing the outcome of the conciliation. You may receive this on the day of the conciliation or within a few days of the conciliation.

If the matter failed to resolve at conciliation and a progress certificate was issued, then usually informal discussions will be held between the parties (usually over the phone) down the track rather than another conciliation conference being held.

However in some cases a further conference might be held.

Do lawyers attend WorkCover conciliations?

There isn’t an automatic right to have a lawyer represent you at a conciliation conference.

In order to represent you, a lawyer needs to ask permission from the Workplace Injury Commission to allow them to do so, and they need to provide reasons as to why it’s appropriate for them to do so.

Input is then sought from the other parties involved in the dispute – namely the insurer and the employer.

At the end of the day, it’s up to the conciliator as to whether they will allow you to have a lawyer to represent you.

So even if the insurer and/or the employer request that a lawyer not represent you, it’s up to the conciliator to decide as to whether to allow it or not.

Most of the time however if a lawyer requests to represent a person at conciliation, the Workplace Injury Commission will allow it.

Can employers attend conciliations?

Yes, but they very rarely do. It’s extremely rate for employments to attend conciliations.

Sometimes people are very nervous about the fact that their employer might attend a conciliation. If this is the case, you should tell your representative or the conciliator well prior to the conciliation.

Conclusion

Here’s a summary of the WorkCover conciliation process:

• Completion and lodgement of the conciliation form, which is sent off to the Workplace Injury Commission.
• The Workplace Injury Commission acknowledge receipt of the conciliation form and then schedule the matter for a conciliation conference (either over the phone, via video or in person).
• Prior to the conciliation, there is an information exchange between the parties. The insurer will provide the material it used to make their decision. You can provide any material, usually medical material.
• During the conciliation, the conciliator will introduce themselves and outline the process.
• Typically the insurer representative will speak first and outline why the insurer made the decision.
• You and your representative then have the opportunity to provide reasons as to why you disagree with the insurer’s decision.
• There may then be a period of discussion between the parties.
• The parties may then enter into private groups.
• The conciliator may go between the two groups, discussing various points relating to the dispute. Offers and counter offers may be relayed, as well as other options open to you (eg; medical panel referral).
• Once the conciliation has concluded, the conciliator will usually bring the parties back together and confirm the outcome of the conciliation. An outcome certificate confirming the outcome in writing will be sent to the parties shortly after the conciliation.