Lululemon Athletica Australia Pty Ltd

[2014] FWCA 6435

[2014] FWCA 6435

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Lululemon Athletica Australia Pty Ltd
(AG2014/8631)

LULULEMON DISTRIBUTION CENTRE ENTERPRISE AGREEMENT 2014

Retail industry
COMMISSIONER BULL	SYDNEY, 15 SEPTEMBER 2014

Application for approval of the Lululemon Distribution Centre Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Lululemon Distribution Centre Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] On 1 September 2014, the Commission wrote to the Applicant and the employee bargaining representative, in relation to concerns it had with the Agreement. In particular, the concerns related to shift workers, superannuation, ordinary hours of work, and the salaries contained in the Agreement.

[3] Correspondence was received from the Applicant on 8 September 2014.

Undertaking

Shift workers

[4] In the Form F17 - Employer’s statutory declaration in support of an application for approval of an enterprise agreement, the employer declared that pursuant to clause 3.4 - Introduction of a shift system, of the Agreement shift workers can be employed under the Agreement.

[5] The Commission requested the Applicant to provide an undertaking that shift workers will be entitled to 5 weeks of paid annual leave.

[6] The Applicant has advised that it does not currently employ shift workers. However, the Applicant has provided an undertaking that should it introduce a shift system, a shift worker (being someone who is a seven day shift worker regularly rostered to work on Sundays and Public Holidays) will be entitled to 5 weeks of paid annual leave, in accordance with s.87(1)(b)(ii) of the Act.

[7] This undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached at Annexure A.

[8] Pursuant to s.190(4) of the Act, the employee bargaining representative has been made aware of the undertaking provided. The employee bargaining representative has not advised of any concerns with the undertaking provided.

Superannuation

[9] In correspondence to the Applicant, the Commission sought clarification in relation to clause 2.6 - Superannuation, and in particular, sub clause 2.6.2 as to the name of the employer’s default fund, which states is the ‘lululemon athletic Australia Superannuation Scheme’ and how it satisfies the requirement of s.194(h) of the Act.

[10] The Applicant has advised that the name of the employer’s superannuation fund is Kinetic Super and has provided correspondence from Kinetic Super which confirms the fund is a MySuper approved product.

Better off overall test

[11] In its correspondence to the Applicant, the Commission noted that the Agreement contains a span of ordinary hours of work greater than the span provided under the Storage Services and Wholesale Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test.

[12] Further, the Commission noted that the penalty for work undertaken by an employee on a public holiday attracts a lesser penalty under the Agreement than the penalty which would have been afforded to the employee under the Award.

[13] The Agreement also provides for salaries at clause 2.3.2 - Rates of pay, which are inclusive of all incentive-based payments and bonuses, loadings, monetary allowances and penalty rates.

[14] The Commission requested the Applicant to provide a number of indicative rosters and calculations to demonstrate how employees are better off overall under the Agreement when compared to those entitlements they would have received under the Award.

[15] In its correspondence to the Commission, the Applicant has advised that employees are rostered to work between 8:00am to 4:00pm, Monday to Friday, with casual employees and part-time employees start and finishing times differing within these span of hours.

[16] The Applicant submits that it is rare for employees to work overtime, weekends, or public holidays and has confirmed that in the past 12 months, on average, an employee may have been requested to work:

● On a Saturday approximately once per quarter.
● On a Sunday approximately once per quarter.
● On a Public Holiday once annually.
● Up to about 20 hours overtime annually.

[17] The Applicant has provided a number of indicative rosters and calculations to demonstrate that employees are better off overall under the Agreement.

[18] Upon review of the undertaking, correspondence and indicative rosters provided by the Applicant, I am satisfied that employees are better off overall under the Agreement.

[19] The Agreement will cover employees working in the Distribution Centre that are employed wholly or principally to perform work in the classifications in this Agreement. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being geographically or organisationally distinct.

[20] I am satisfied that each of the requirements of ss.187 and 188 of the Act as are relevant to the application for approval have been met.

[21] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 22 September 2014. The nominal expiry date of the Agreement is 30 April 2018.

[22] This decision is to be brought to the attention of the employees.

COMMISSIONER

Annexure A

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