s.185 - Enterprise agreement

DAVISON CONTRACTORS PTY LTD ENTERPRISE AGREEMENT 2025

Application to approve the Davison Contractors Pty Ltd Enterprise Agreement 2025 - Whether the Agreement passes the BOOT test - Were all reasonable steps to explain the Agreement - Were employees sufficiently representative - Was the Agreement genuinely agreed to - Undertakings - Whether undertakings substantially change the Agreement - Agreement approved

[1] Davison Contractors Pty Ltd (Davison) applied for approval of an enterprise agreement known as the Davison Contractors Pty Ltd Enterprise Agreement 2025 (the Agreement).

[2] On 13 February 2026 I approved the Agreement and these are my reasons for that decision.

[3] The Agreement is substantially the same agreement, with some minor changes, as the J Davison Nominees Pty Ltd Enterprise Agreement 2021 (the Previous Agreement), which previously covered the same cohort of workers employed by Davison through a transfer of business.

[4] Upon becoming aware of the application for approval, the Construction, Forestry and Maritime Employees Union (CFMEU) and Australian Workers' Union (AWU) sought an opportunity to be heard under s. 590 of the Act. Both Unions were given an opportunity to provide written submissions and raise their concerns at a Hearing held on 13 October 2025.

[5] The concerns raised by the Unions about the Agreement were:

• • That the Agreement does not pass the Better off overall test (BOOT);[1]
• • Employees requested to voted on the Agreement were not sufficiently representative;[2] and
• • Davison did not take all reasonable steps to explain the terms of the Agreement and the effect of those terms.[3]

[6] Davison was given an opportunity to respond to those concerns and provided submissions.

[7] After considering all parties' submissions, I did not share the concern of the Unions regarding the employees being sufficiently representative but held the following concerns with the Agreement:

• • Whether employees covered by the Agreement were aware from the wording in the Notice of Employee Representational Rights (NERR) that they were covered by the Agreement;[4]

• Whether the Applicant took reasonable steps to explain the terms of the Agreement and the effect of those terms; and
• Whether the Agreement passed the BOOT.

[8] Further submissions, along with undertakings were provided by Davison and the CFMEU regarding these concerns.

[9] On 24 November 2025 Chambers advised Davison and the Unions that the undertakings provided satisfied the concerns raised with one exception. I indicated that I remained concerned about whether the Agreement was genuinely agreed to on the basis that the employer had not taken all reasonable steps to explain the terms of the Agreement and effect of those terms.

[10] A further hearing was held on 5 December 2025 and additional undertakings were provided by Davison regarding that concern.

[11] I now address each of the concerns raised with the Agreement in detail.

• [12] An employer who will be covered by a proposed single-enterprise agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who will be covered by the agreement and is employed at the notification time for the agreement.[5]

[13] The NERR that Davison issued described the employees the Agreement will cover as 'paid based on wages remuneration associated with hourly wage rates.' The issue was whether this was sufficient for employees to determine whether they would be covered by the Agreement.

• [14] Additional information was sought to allow assessment of whether the description of the proposed coverage of the agreement left employees capable of determining whether they would be covered by the proposed agreement.[6]

• [15] The CFMEU provided further submissions contending that the NERR was defective as it did not contain a clear description of the of the employees who were proposed to be covered by the Agreement.[7]

[16] Davison responded stating that employees were aware that they are paid wages based on an hourly rate due to their contracts of employment, payslips, coverage by the Previous Agreement and a meeting held with employees prior to the issuing of the NERR.

[17] I accept the explanation provided. It is clear to me that employees were able to determine whether they are paid remuneration on a salaried or hourly rate basis, particularly in light of the wage arrangements in the Previous Agreement.

• [18] Having regard to the materials before the Commission, including the nature of the workforce, the previous agreement that applied to Davison employees, the wording in the NERR, which read in context, makes it clear that the Agreement would replace the Previous Agreement and the email that accompanied the NERR that was sent to employees, I am satisfied that employees were able to determine whether they were an employee who would be covered by the Agreement.[8]

[19] Accordingly, I find that ss. 173 & 174 of the Act have been met.

• [20] Before an employer requests an employee to approve a proposed enterprise agreement by voting for it, the employer must take all reasonable steps to ensure that the terms of the agreement, and the effect of those terms, are explained to the employees employed at the time who will be covered by the agreement.[9]

• [21] Additionally, for an agreement to be approved, the Commission must be satisfied that the agreement has been genuinely agreed to by the employees who will be covered by it,[10] taking into account the Statement of Principles.[11]

[22] Two concerns were raised by the Unions about the wage increase clause, both of which were submitted to render the Agreement incapable of approval, on the basis that employees had not genuinely agreed to the Agreement.

• [23] The first was an assertion that the clause itself, 'is incapable of enforcement within the meaning of s. 253 of the Act, rendering it an illusory entitlement.'[12]

• [24] Further, it was submitted that Davison did not take reasonable steps to explain the wage increase clause to employees, specifically, that they are not guaranteed a pay increase during the life of the Agreement.[13]

[25] I am not persuaded that the clause is incapable of enforcement, as there is a clear requirement for Davison to conduct a review as outlined in the clause. However, I share the concerns of the Unions regarding the steps taken to explain the effect of the term to employees who would be covered by it.

6.2.1 The rates of pay in Schedule 1 will be reviewed each year after consideration of:

• changes in the Consumer Price Index ("CPI") for Adelaide;
• business performance;
• comparable market rates; and
• the profitability of the business.

Any increase under this sub-clause (6.2.1) will be based on management discretion only and is without obligation, subject to sub-clause 6.2.2 below.

• 6.2.2 Where the FWC grants an increase to the base rate of pay in the Award for a classification of work covered by this Agreement, or where the creation or variation of a Modern Award that would apply to the employee (but for the application of this Agreement) results in new minimum base rates of pay, the Ordinary Rates of Pay in Schedule 1 of this Agreement will be adjusted from the operative date of that decision to ensure that they are no lower than any minimum base rates of pay in the Award plus the Award rate for the incorporated provisions prescribed at sub-clause 6.1.3 of this Agreement.

• [27] The explanation provided to employees was that this clause 'Sets out how rates are adjusted' and 'Annual review of rates. Cannot fall below the Award base rate of pay plus the industry allowance and first aid allowance for those required to be first aiders. No change from Existing Agreement.'[14]

[28] The explanation of this term to employees states that the clause sets out how rates are adjusted and does not explain that the effect of the term is that they might not be adjusted at all.

[29] Employees would have reasonably understood from the explanation provided and the clause itself that they were agreeing to a term that would increase their pay rates each year. However, a strict reading of the clause does not guarantee an increase to the rate of pay.

[30] Davison sought to rely on employees' familiarity with the clause under the Previous Agreement, but there is limited evidence about employees' previous experience.

[31] Given the significance of the clause and its effect, steps should have been taken to explain the effect of the term to employees, specifically that they may not receive an increase in their pay for the life of the Agreement.

• [32] I accept that the test for the Commission is not whether the explanation was adequate but whether reasonable steps were taken to provide the explanation.[15]

[33] In assessing the steps taken and the circumstances raised above, I do not consider Davison to have taken all reasonable steps to explain the terms of the Agreement, and the effect of those terms, to employees employed at the time who would be covered by the Agreement.

[34] Davison was advised that my preliminary view was that I did not consider that all reasonable steps had been taken to explain the terms of the Agreement and therefore the Agreement was unable to be approved.

[35] A Hearing was conducted on 5 December 2025, at which Davison relied on CFMMEU v Specialist People Pty Ltd [2019] FWCFB 7919, in resolving the deficiency by way of an undertaking.

• [36] The Full Bench in that matter found that an undertaking could resolve the concern relating to the explanation provided because the undertaking rendered 'moot the omission we have identified in that the detriment which required explanation would no longer exist.'[16]

[37] The undertaking submitted by Davison to rectify the concerns relating to the steps taken to explain the wage increase clause stated,

3A. That the rates of pay in Schedule 1 will increase from the first full pay period starting on or after 1 July 2026, 1 July 2027, and 1 July 2028 at a minimum by a percentage equivalent to the adult minimum award wages percentage increase as decided by the Fair Work Commission's Annual Wage Review in the relevant year,

3B. In addition to the minimum increase provided for in undertaking paragraph 3A, it will conduct a review of the rates provided for in Schedule 1 by no later than August 2026, August 2027 and August 2028 on the criteria set out within clause 6.2.1, which may result in the rates of pay in Schedule 1 increasing by more than the minimum prescribed in Undertaking paragraph 3A. To avoid doubt, the rates of pay in Schedule 1 may not be decreased by this review.

[38] I consider the circumstances in the present matter can be so described, and that the undertaking proffered is capable of resolving the deficiency in the steps taken to provide an explanation of the terms of the proposed agreement if it is accepted.

• [39] It was argued by the CFMEU that the undertaking relied on, 'assumes that the employees may have voted on the basis that they assumed that would get a...guaranteed pay increase, at least that equivalent to the Award but there's no evidence to that effect, and that's not a reasonable assumption to make based on the wording of the Agreement.'[17] On this basis it said that the Agreement was therefore not capable of satisfying the concern about whether there was genuine agreement.

[40] I have already found that the employees would have reasonably understood that they were entitled to a pay rise based on the term and the explanation provided to employees about the effect of the term.

• [41] The undertaking relating to the wage increase clause is provided to meet the concern[18] that the Agreement was not genuinely agreed to by employees because all reasonable steps were not taken to explain the term and the effect of the term, which is a requirement for an agreement to be approved.[19]

[42] I consider that the undertaking, if accepted, would result in the omission identified which required explanation no longer existing. On this basis, I could be satisfied that all reasonable steps were taken to explain the terms of the Agreement.

• [43] The CFMEU objected to the acceptance of the undertaking on the basis that it fundamentally alters the way the clause operates rather than clarifying the operation of the clause, resulting in substantial changes to the Agreement.[20]

[44] I do not accept that submission. If the undertakings are accepted, clause 6.2 would continue to operate in the manner voted on by employees. Davison would still be required to conduct a review of the wage rates in Schedule 1 and consider the required factors set out in clause 6.2. The undertaking would simply give employees what they might have reasonably understood, which is that their wages would increase during the life of the Agreement.

• [45] Accordingly, I find that the undertaking does not substantially change the Agreement.[21] I am also satisfied that it will not cause financial detriment to any employees covered by the Agreement, in fact, it would be more beneficial for all employees covered by the Agreement.

[46] I accept the undertaking relating to the wage increase clause and consider that it addresses the concern held as to whether the Agreement was genuinely agreed to as required by s. 186 (2).

• [47] The Agreement covers employees of Davison who perform work as described in the classifications of CW1a to CW8.[22]

• [48] Employees who voted on the Agreement were employed across the classifications of CW3 to CW8.[23]

• [49] Both Unions submitted that the Commission could not be satisfied that the employees who voted on the Agreement were sufficiently representative because no employees who were eligible to vote were employed in classifications CW1a, CW1b, CW1c, CW1d, CW2.[24]

[50] The classifications of CW1a, CW1b, CW1c are applicable to labourers employed by Davison who have less than 12 months experience. CW1d applies to labourers who have in excess of '12 months experience' and CW2 applies to labourers who have in excess of '12 months experience' and a 'Cert 2 in Civil Construction''.

[51] The CW3 classification applies to labourers who have at least a Cert 3 in Civil Construction.

[52] The time-based progression through the lower classifications by its very nature will result in those employees moving into the higher classifications within the first 12 months of their employment.

[53] As a matter of logic, the majority of the labour force will therefore sit in the higher classifications for labourers (CW1d, CW2, CW3) at any given time. Except in the unlikely circumstance that Davison were to recruit a number of labourers with no experience right before Agreement is voted upon.

[54] It is therefore likely that some of those lower classifications for labourers will not have employees in them because they have more than 12 months experience.

[55] The Statement of Principles relevantly says at clause 17,

(a) whether the employees entitled to vote on the enterprise agreement are to be paid the rates of pay provided for in the agreement, and

(b) the extent to which the employees entitled to vote on the enterprise agreement are employed across the full range of:

(ii) types of employment in the agreement (for example, full-time, part-time and casual)

(iii)geographic locations the agreement covers, and

(iv)industries and occupations the agreement covers.

• [56] Accordingly, it is not the case that there must be an employee in each classification of the Agreement for the Commission to find that the employees who are requested to approve the agreement by voting for it are sufficiently representative.[25]

[57] Taking into account the guidance provided by the Statement of Principles and the classification structure in the Agreement, I am satisfied that the employees who were requested to vote on the Agreement were sufficiently representative.

[58] There were employees from seven out of twelve classifications in the Agreement, noting that three of those classifications result in time-based progression into higher classifications.

[59] In weighing these considerations, along with the materials put to me regarding the nature of the industry and occupations covered, I am satisfied that the employees requested to approve the Agreement by voting for it were sufficiently representative.

[60] I am satisfied that the Agreement was a product of an authentic exercise in agreement-making.

[61] In assessing whether the Agreement passed the BOOT, the following concerns were raised with Davison which may result in employees not being better off overall:

• No entitlement for part-time employees to be paid overtime rates for working outside ordinary hours;
• Lesser redundancy entitlements for employees who had between 1 and 4 years of service;
• The loss of travel time within the 50km radius of the Adelaide GPO, loss of crib time, the tool allowance being lower and not all purpose and CW6 employees working a 40-hour week, under the 50-hour model; and
• Lower penalty rates for employees performing night shift-work.

[62] Davison provided the below undertakings,

That any part-time employee who work additional hours outside of the employee's ordinary working hours will be paid overtime in accordance with clause 4.3.

Employees with a length of service of 1 and 4 years, will have any redundancy entitlements paid in accordance with clause 41.3 of the Building and Construction General On-site Award.

That any FWC increases to the base rate of pay and allowances applied to the Building and Construction General On-site Award 2020 are to be applied to all classification levels covered by the Davison Enterprise Agreement. Importantly, the effective date of any increases that will be applied by Davison Contractors Pty Ltd will be determined each year at the time of the yearly pay review cycle following the FWC's Annual Wage Review.

Where it is identified however that a specific base rate of pay or allowance in the Enterprise Agreement would fall below the equivalent award amount, the award rate will be applied from its operative date.

If an employee is required to travel to a construction site that is:

(i) not located in a metropolitan radial area in which the employee's usual place of residence is located; and

(ii) more than 50 kms by road from the employee's usual place of residence; the employee will be entitled to the distant work payment in clause 6.3.4 (d) instead of the allowance in clause 6.3.4 (c).

(a) payment for the time outside ordinary working hours reasonably spent in travel, paid at the ordinary time hourly rate, calculated to the next quarter of an hour, and with a minimum payment of one half an hour per day for each return journey; and

(b) any expenses necessarily and reasonably incurred in such travel, which will be at the Vehicle Allowance B rate as set out in Schedule 2) where the employee uses their own vehicle.

(c) Despite clause 6.3.4(d), the distant work payment is not payable when, at the commencement of employment, the employee's usual place of residence was more than 50km by road from the construction site on which the employee was initially engaged.

(iv) No allowance is applicable where the employer provides or offers transport.

4. Shift penalties for employees performing general building and construction work

5.3.1 Except as provided by clause 5.3.4, an employee will be entitled to a shift loading in addition to their Ordinary Rate of Pay when an employee is employed continuously for 5 shifts Monday to Friday as follows:

a) For a shift starting after 4.30 am and before 6.00 am (Morning),or starting after 11.00 am and before 1.00 pm (Early Afternoon) Monday to Friday: an afternoon shift loading of 50% for ordinary hours worked, for all ordinary hours worked.

b) For a shift starting after 1.00 pm and before 4.30 am Monday to Friday: a night shift loading of 100% of the ordinary hours worked for all ordinary hours worked.

c) For all hours worked between midnight Friday to midnight Sunday): a shift loading of 100%.

d) For all hours worked on a public holiday (midnight to midnight): a shift loading of 150%.

5.3.4 Shift workers who work on any afternoon or night shift which does not continue for at least five (5) successive afternoons or nights will be paid at the rate of double time for all ordinary time occurring during such shift, instead of the penalties in clause 5.3.1 (a) and (b).

• [63] I am satisfied that the undertakings address the concerns identified above in relation to the BOOT and the undertaking is not likely to cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement.[26]

[64] Accordingly, I am satisfied that the Agreement passes the BOOT.

[65] For the reasons detailed above, I am satisfied that Davison took all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who would be covered by the Agreement and was employed at the notification time for the Agreement.

[66] Further, I consider that the notice met the requirements having regard to s. 174 of the Act, Schedule 2.1 of the Fair Work Regulations 2009 and the Statement of Principles.

[67] I am satisfied that the Agreement has been genuinely agreed to by employees for the reasons set out above and having considered ss. 180 (5) & 188 (2) (b) of the Act and the Statement of Principles.

[68] I hold a concern that the requirements in s. 186 (2) of the Act are not met and accept the undertakings provided in accordance with s. 190 of the Act and am exercising the discretion in s. 190 (2) of the Act to approve the Agreement with the undertakings provided.

[6] Australian Maritime Officers' Union v Harbour City Ferries Pty Ltd; Maritime Union of Australia; Australian Institute of Marine and Power Engineers [2015] FWCFB 3337 at [28]- [29].

[7] CFMEU Further Outline of Submissions dated 31 October 2025 pp. 1-2.

[8] Australian Maritime Officers' Union v Harbour City Ferries Pty Ltd; Maritime Union of Australia; Australian Institute of Marine and Power Engineers [2015] FWCFB 3337 at [28]- [29].

[11] s. 188 of the Act and the Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023 ('Statement of Principles').

[12] AWU Outline of Submissions at p. 5.

[13] CFMEU Outline of Submissions dated 9 October 2025 at pp. 7-8; CFMEU Further Outline of Submissions dated 31 October 2025 at p.3.

[14] Davison Contractors EA 2025 - Explanatory document p. 6.

[16] CFMMEU v Specialist People Pty Ltd [2019] FWCFB 7919 at [23].

[17] Audio Recording of Hearing (5 December 2025) at 17:31-17:54.

[20] Audio Recording of Hearing (5 December 2025) at 18:18-18:37.

[21] In contravention of s. 190 (3) (b).

[22] cl 1.1 & 1.2 and Schedule 1 of the Agreement.

[24] AWU Outline of Submissions at p. 4; CFMEU Outline of Submissions dated 9 October 2025 at pp. 6-7.

[25] Innovative Asset Solutions Pty Ltd T/A IAS v The Australian Workers' Union, The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Electrical Division, Western Australia) and Others [2025] FWCFB 250 and Australian Workers' Union v Moag Pty Ltd [2024] FWCFB 259.

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