Kevin R Sheather (Northern) Pty Ltd T/A Kevin R Sheather Electrical

[2021] FWCA 5962

[2021] FWCA 5962

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Kevin R Sheather (Northern) Pty Ltd T/A Kevin R Sheather Electrical
(AG2021/7313)

KEVIN R SHEATHER (NORTHERN) PTY LTD COLLECTIVE AGREEMENT 2008-2011

Electrical Contracting Industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 23 SEPTEMBER 2021

Application for termination of the Kevin R Sheather (Northern) Pty Ltd Collective Agreement 2008-2011.

[1] Kevin R Sheather (Northern) Pty Ltd (KR Sheather) is covered by the Kevin R Sheather (Northern) Pty Ltd Collective Agreement 2008 – 2011 (Agreement) and has made an application to terminate the Agreement pursuant to s 225 of the Fair Work Act2009 (Cth) (Act). The nominal expiry date of the Agreement was in June 2011.

[2] The Agreement is a collective agreement-based transitional instrument within the meaning of item 2(5) of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act). By reason of item 16 of schedule 3 of the Transitional Act, subdivision D of division 7 of part 2-4 of the Act applies to the Agreement as if reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument such as the Agreement.

[3] There are no employee organisations covered by the Agreement.

[4] There are employees covered by the Agreement.

[5] On 8 September 2021, I made the following directions in this matter:

1. By 4pm on 15 September 2021, Kevin R Sheather (Northern) Pty Ltd (KR Sheather) must:

a. provide a copy of these directions to all employees covered by the Agreement, together with a copy of the Form F24B and Form F24C filed by KR Sheather in the Fair Work Commission in support of its application to terminate the Agreement; and

b. inform, in writing, the employees covered by the Agreement that they have until 4pm on 22 September 2021 to inform the Fair Work Commission of their views in relation to the application to terminate the Agreement.

2. By 4pm on 22 September 2021, any employee covered by the Agreement who either opposes the termination of the Agreement or wishes to inform the Fair Work Commission of their views in relation to the application to terminate the Agreement, must file in the Commission any submissions, written statements and documents they wish to rely on in relation to the application to terminate the Agreement. Any such material may be filed in the Commission by emailing it to [email protected].

3. By 4pm on 22 September 2021, KR Sheather must file in the Fair Work Commission a statutory declaration setting out the steps it took to comply with direction 1 above.

[5] On 22 September 2021, KR Sheather filed a statutory declaration made by Mr Gregory Barton on 22 September 2021 confirming that KR Sheather had complied with direction 1 made on 8 September 2021.

[6] I am satisfied that the employees covered by the Agreement have been given an opportunity to inform the Fair Work Commission (Commission) of their views in relation to the application to terminate the Agreement. The Commission has not received any communication from an employee covered by the Agreement in relation to the application to terminate the Agreement.

[7] Having regard to the information contained in Mr Barton’s statutory declaration made on 22 September 2021, together with the declaration made by Mr Daniel Wilson on 7 September 2021 in support of the application for termination of the Agreement, I am satisfied that: 1

● termination of the Agreement is not contrary to the public interest; and

● it is appropriate to terminate the Agreement taking account all the circumstances including:

○ the views of the employees covered by the Agreement and KR Sheather; and

○ the circumstances of those employees and KR Sheather including the likely effect that the termination will have on each of them.

[8] Accordingly, I terminate the Agreement with effect from midnight tonight, 23 September 2021. An order [PR734244] giving effect to this decision will be issued today.

DEPUTY PRESIDENT

 1 Section 226 of the Fair Work Act 2009 (Cth)

Printed by authority of the Commonwealth Government Printer

<AC314862  PR734243>