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.