Dowsing Group Pty Ltd Trading as Dowsing Group

[2025] FWCA 810

[2025] FWCA 810

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Dowsing Group Pty Ltd Trading as Dowsing Group

(AG2025/349)

DOWSING GROUP ENTERPRISE AGREEMENT 2024

Building, metal and civil construction industries
DEPUTY PRESIDENT O’KEEFFE	PERTH, 5 MARCH 2025

Application for approval of the Dowsing Group Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Dowsing Group Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Dowsing Group Pty Ltd Trading AS Dowsing Group (the Applicant). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 16 February 2024 and the Agreement was made on 31 January 2025. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

2. The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT.

3. As the Agreement did not contain the definitions of the work falling within scope of each of the classifications, I advised the Applicant that I would include the classification matching provided in the Form F17B as part of my decision.  The Agreement classifications compare to the classifications in the Building and Construction General On-site Award 2020 as follows:

Agreement Classification	Award Classification
Level 1.1	CW 1(a)
Level 1.2	CW 1(c)
Level 2	CW 2
Level 3	CW 3
Level 4	CW 4
Level 5	CW 6
Level 6	CW 8

1. In undertaking the BOOT assessment I identified three potential issues about which I sought submissions.  The first was with day workers performing early starts.  The Applicant provided material addressing these concerns and confirming that such employees are not shift workers.  On the basis that it is not reasonably foreseeable that such employees will commence work earlier that 5am I am satisfied that this issue is resolved.  The second issue related to weekend penalties and the Applicant advises that its employees work Monday to Friday with some occasional Saturday work.  Further, it is not reasonably foreseeable that an employee would work weekend work without having worked Monday to Friday.  On the basis of this advice I am satisfied that the reasonably foreseeable rosters are such that they pass BOOT.  The third issue went to the penalty rates for shift workers but the Applicant advises that its employee work during the day on what would be regarded as day work provisions under the Award.  Again, on the basis that these are the foreseeable rosters I am satisfied that the BOOT issue is resolved.

2. The Applicant has provided written undertakings (Annexure A). I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. 

3. The Agreement did not contain a delegates’ rights clause and so pursuant to s.205A of the Act the delegates’ rights term from the Building and Construction General On-site Award 2020 has been inserted as a term of the Agreement.

4. Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 March 2025. The nominal expiry date of the Agreement is 5 March 2029.

DEPUTY PRESIDENT

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Annexure A: