Employers should take into account anti-discrimination legislation when deciding which employees to retrench, as the recent decision of Stern v Depilation & Skincare Pty Ltd  VCAT 2725 illustrates. In this decision, an employee was working part time during pregnancy due on medical grounds. The employer was found to have treated an employee less favourably due to pregnancy when she was selected for redundancy due largely to her part time status.
The bargaining landscape confronting employers remains uncertain. In rejecting the CFMEU's application to have bargaining orders made against Tahmoor Coal, however, Commissioner Roberts of Fair Work Australia found that an employer is not in breach of its good faith bargaining obligations simply because, after extensive negotiations, the employer concludes negotiations are at an impasse. Commissioner Roberts stated that in this case, having reached this conclusion, the employer was entitled to refuse to meet further with the union.
Employers must ensure that they have a good understanding of the operation of the National Employment Standards, which came into effect on 1 January 2010, particularly when recruiting new employees. Non compliance with the National Employment Standards or an attempt to enter into an arrangement with an employee which does not comply with the National Employment Standards would expose employers to penalties for breach of the Fair Work Act 2009.
The Corporations Law now contains important restrictions on a corporation's ability to make very large termination payments to outgoing executives. Shareholder approval will now be required for executive termination payments in excess of one year's salary. The new provisions will apply to employment arrangements entered into after 24 November 2009.