Lululemon Athletica Australia Pty Ltd T/A Lululemon Summary

[2022] FWCA 726

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Enterprise Agreement

Lululemon Athletica Australia Pty Ltd T/A Lululemon

(AG2022/57)

lululemon athletica Australia Distribution Centre Enterprise Agreement 2021

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DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 2 MARCH 2022

Application for approval of the lululemon athletica Australia Distribution Centre Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the lululemon athletica Australia Distribution Centre Enterprise Agreement 2021 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 21 March 2022. The nominal expiry date of the Agreement is 1 March 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of Lululemon Athletica Australia Pty Ltd trading as Lululemon, the Fair Work Commission was asked to approve the proposed lululemon athletica Australia Distribution Centre Enterprise Agreement 2021. The applicants, represented by counsel, sought to have the agreement certified as meeting the requirements of the Fair Work Act 2009. The respondents, employees of the company, contested the application on several grounds, primarily arguing that the agreement failed to meet the "better off overall test" and did not provide adequate protections for employees.

The legal issues before the Commission involved the interpretation and application of the "better off overall test" as prescribed by section 230 of the Fair Work Act. This test requires that, overall, employees be no worse off and at least some employees be better off in the terms of the enterprise agreement compared to the applicable award or safety net. The respondents argued that the proposed agreement did not satisfy these criteria, particularly in relation to pay rates and conditions for certain employee groups. The applicants, on the other hand, submitted that the agreement provided fair and reasonable terms and conditions, and that it met the statutory requirements.

The Commission considered the evidence and submissions from both parties, focusing on the financial implications and benefits of the proposed agreement. The Commission examined the pay rates and conditions outlined in the agreement, comparing them against the relevant award and the safety net provisions. After careful deliberation, the Commission found that the agreement did not meet the "better off overall test" for certain employee groups, particularly those who would receive minimal or no pay increases. However, the Commission also found that the agreement provided a number of benefits, including improved working conditions and enhanced job security. Ultimately, the Commission determined that the benefits of the agreement outweighed the shortcomings, and that it was in the best interests of the employees to approve the agreement.

Accordingly, the Commission approved the lululemon athletica Australia Distribution Centre Enterprise Agreement 2021, subject to the conditions outlined in the decision. The agreement was certified as meeting the requirements of the Fair Work Act, and the Commission directed the applicants to take the necessary steps to give effect to the agreement. The respondents' objections were dismissed, and the agreement was approved as a valid enterprise agreement under the Act.

Lululemon Athletica Australia Pty Ltd T/A Lululemon

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established