LULULEMON ATHLETICA AUSTRALIA PTY LTD RETAIL NATIONAL ENTERPRISE AGREEMENT 2016

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

[1] On 1 October 2025, Lululemon athletica Australia Pty Ltd T/A lululemon athletica (Lululemon) filed an application (Application) for the termination of the lululemon athletica Australia Pty Ltd Retail National Enterprise Agreement 2016 (the Agreement)[1] pursuant to s.222 of the Fair Work Act 2009 (the Act).The Agreement is a single enterprise agreement which nominally expired on 26 July 2021.[2] The Agreement is expressed to cover Lululemon and the employees of Lululemon engaged in the classifications specified in the Agreement.[3]

[2] The Application was accompanied by a Form F24A - Declaration in support of termination of an enterprise agreement (Form F24A) made by Mr Lindsay Newton, Organizational Health & Engagement Manager, Australia and New Zealand.

[3] The Act relevantly provides as follows:

"222 Application for the FWC's approval of a termination of an enterprise agreement

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period - within such further period as the FWC allows.

223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination."

[4] I am satisfied that the requirements of s.222(1) and (2) of the Act are met. The application to terminate the Agreement has been made by Lululemon, a person covered by the Agreement. Further, it was accompanied by the material required by the Fair Work Commission Rules 2013, being made by Form F24 and accompanied by a Form F24A declaration setting out the basis upon which the Fair Work Commission (FWC) can be satisfied that the requirements of s.223 of the Act have been met.

[5] Section 222(3) of the Act sets out the timeframe within which an application must be made. In the Form F24, Lululemon stated the termination was agreed to on 3 July 2025. The Application was therefore lodged outside the 14-day timeframe stipulated in s.222(3)(a). The Commission can extend this time period if it considers it fair to do so in all the circumstances (s.223(3)(b)). In the Form F24, Lululemon outlined the circumstances it considered the Commission should take into account in deciding if it is fair to extend the time for the making of the Application. Having considered these circumstances, I consider that it is fair to extend the time for the making of the application to 1 October 2025.

[6] I must approve the Application if I am satisfied that the requirements set out in s.223 of the Act are met. I consider each of those requirements below.

Each employer covered by the agreement complied with subsection 220(2) in relation to the agreement - s.223(a)

[7] The employer must take all reasonable steps to notify the employees of the time and date of the vote, the voting method that will be used (s.220(2)(a)) and give those employees a reasonable opportunity to decide whether to approve the proposed termination (s.220(2)(b)).

[8] In the Form F24A Mr Newton declared that on 5 June 2025, all Store Managers and Assistant Store Managers were advised of the time and manner of voting by way of an internal electronic message board known as 'Zipline'. Lululemon submits, and I am satisfied, that this satisfies the requirements of s.220(2)(a).

[9] As regards s.220(2)(b), Mr Newton declared in the Form F24A that the following steps were taken:

1. The store-management team of approximately 150 employees were engaged in individual meetings over October 2023 - December 2023 to discuss Lululemon's proposed new structure of an enterprise agreement for waged employees and individual contractual arrangements for the store-management team. The employees in the store-management team were then provided with proposed individual contracts conditional on the termination of the existing enterprise agreement.

2. Workshops with a self-nominated group of store-management employees were conducted for consult about both their desired terms and conditions of employment and the desired term and conditions of an Enterprise Agreement to cover 'hourly employees' within their stores, and to establish management's perspective on suitable practices in determining terms and conditions.

3. Store Managers and Assistant Store Managers were briefed on the proposed changes through written and verbal communication in multiple locations and sessions and were provided with access to FAQs and the Organisational Health & Engagement Manager in order to address any questions and/or concerns.

4. Store-management employees were requested to vote on the proposed termination.

[10] Lululemon submits, and I am satisfied, the above steps satisfy the requirements of s.220(2)(b).

The termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies - s.223(b)

[11] The Agreement is a single-enterprise agreement and therefore s.221(1) applies. Section 221(1) provides that if the employees have been asked to approve a proposed termination in accordance with s.220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

[12] In the Form F24A, Mr Newton declared that voting commenced on 1 July 2025 and ended on 3 July 2025, that 136 employees are covered by the Agreement, that 120 employees cast a valid vote and that 119 employees voted to approve the termination of the Agreement. As such, the termination was agreed to on 3 July 2025.

[13] Having regard to the circumstances of this matter, I am satisfied that the termination was agreed to in accordance with s.221(1).

There are no other reasonable grounds for believing that the employees have not agreed to the termination - s.223(c)

[14] I am satisfied that there are no other reasonable grounds for believing that the employees covered by the Agreement have not agreed to the termination.

It is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement - s.223(d)

[15] As outlined above, the Agreement is expressed to cover Lululemon and its employees engaged in the classifications contained in the Agreement.[4] As it does not cover any employee organisation, there are no views to take into account pursuant to s.223(d).

[16] Based on the material contained in the declaration made by Mr Newton, I am satisfied that Lululemon has complied with the requirements in s.220(2) of the Act. I observe the Application has been made in accordance with the requirements in s.222. I am also satisfied that the termination was agreed to by a majority of the relevant employees who cast a valid vote to approve the termination as required by s.221(1). I am not aware of any reasonable grounds for believing that the employees have not agreed to the termination.

[17] In the circumstances I consider it appropriate to approve the termination.

[18] The termination will operate from 14 November 2025.

[19] An order giving effect to this decision is separately issued in PR793741.

[2] [2017] FWCA 3799 at [21].

Printed by authority of the Commonwealth Government Printer