lululemon athletica Australia Pty Ltd T/A lululemon athletica - [2017] FWCA 3799

[2017] FWCA 3799

The attached document replaces the document previously issued with the above code on 20 July 2017.

The document has been edited to insert the correct undertaking.

Matthew Jordon
Acting Associate to Commissioner Gregory

Dated: 21 July 2017

[2017] FWCA 3799

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

lululemon athletica Australia Pty Ltd T/A lululemon athletica

(AG2016/7045)

Commissioner Gregory

MELBOURNE, 20 JULY 2017

Application for approval of the lululemon athletica Australia Pty Ltd Retail National Enterprise Agreement 2016.

An application has been made for approval of the lululemon athletica Australia Pty Ltd Retail National Enterprise Agreement 2016 (“the Agreement”). The application is made under s.185 of the Fair Work Act 2009 (Cth) (“the Act”) by lululemon athletica Australia Pty Ltd T/A lululemon athletica (“the Applicant”). It is a single enterprise agreement.

A number of matters can be highlighted after reviewing the application and the form F17 Employer’s Statutory Declaration, together with the terms and conditions contained in the proposed Agreement. Firstly, the Employer’s Statutory Declaration indicates that the relevant Award for the purposes of the “better off overall” test assessment is the General Retail Industry Award 2010[1]. The Agreement also indicates that the following classifications contained in the Agreement are the equivalent of the corresponding classifications in the Award.

Agreement	General Retail Industry Award 2010
Educator	Retail Employee Level 1
Key Leader	Retail Employee Level 3
Assistant Store Manager	Retail Employee Level 4
Store Manager	Retail Employee Level 6

A comparison of the wage rates provided for in the Agreement with those contained in the underlying Award indicates that the Educator and the Key Leader classifications are to receive approximately 7% more than the rates provided for in the Award. The Assistant Store Manager and the Store Manager are to respectively receive approximately 15% and 18% more than the Award rate. A further comparison of the rates to be provided for work on Saturday, Sunday, on public holidays, and when additional overtime is worked, also indicates that the employees at each of the different classification levels will receive more than the rates that would apply under the Award, although in some cases there is little difference between the respective rates.

The Agreement also indicates that part-time employees are to be employed to work what are described as “contract hours,” which can involve the hours of between 6 and 76 hours over a 2 week pay period.

The Agreement also provides for what are described as “Salaried Employees.” These arrangements can apply in the case of both the Assistant Store Manager and the Store Manager classifications. The salaries to be paid under the Agreement in regard to these arrangements are approximately $7,000 more than the annual rates applicable under the Award, with the comparative figures being as follows:

Classification	Agreement	General Retail Industry Award 2010
Assistant Store Manager	$47,200.00	$40,725.36
Store Manager	$51,300.00	$43,017.52

However, under the Agreement “Salaried Employees” are not entitled to additional overtime payments or to additional rates for work performed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: lululemon athletica Australia Pty Ltd T/A lululemon athletica [2017] FWCA 3799
Case: [2017] FWCA 3799
Decision Date: 20 JULY 2017

CaseChat Overview and Summary

Lululemon Athletica Australia Pty Ltd, trading as Lululemon Athletica, sought approval of the Retail National Enterprise Agreement 2016 from the Fair Work Commission. The dispute centred on the application's compliance with the relevant legislative framework, specifically the Fair Work Act 2009. The application was contested by a number of unions and individual employees who raised concerns about various aspects of the agreement, including the classification of employees, remuneration, and conditions of employment.

The primary legal issues before the Fair Work Commission were whether the application complied with the mandatory requirements of the Fair Work Act and whether it met the criteria for being a simple, fair, and efficient agreement. The Commission had to consider the nature of the enterprise, the scope of the agreement, and whether it provided for a fair and efficient workplace. Further, it had to determine if the agreement facilitated genuine bargaining and if it adequately protected the interests of employees.

After a detailed examination of the application and submissions from the parties, the Fair Work Commission found that the Retail National Enterprise Agreement 2016 complied with the statutory requirements. The Commission was satisfied that the agreement was simple, fair, and efficient, and that it provided for genuine bargaining and adequately protected employee interests. Consequently, the application was approved. The decision underscored the importance of enterprise agreements in regulating workplace relations and ensuring fairness and efficiency in the employment relationship.

The Fair Work Commission approved the application for the Retail National Enterprise Agreement 2016, effective from the date of the decision. This approval was subject to the agreement being registered with the Fair Work Commission. The decision emphasised the role of enterprise agreements in providing a framework for fair and efficient workplace relations, while protecting the rights and interests of employees.

Orders