In New South Wales, the Shop Trading Act 2008 (NSW) (the Act) provides that ‘shops’ (defined in section 3 of the Act to mean retail shops) are not restricted to trading on any day except for ‘restricted trading days’. In simpler terms, shops can trade on any day except for ‘restricted trading days’.
Subsection 4(1) of the Act states that all shops must be kept closed at the following times:
- at all times on Good Friday,
- at all times on Easter Sunday,
- at all times before 1pm on Anzac Day,
- at all times on Christmas Day,
- at all times on Boxing Day.
Exempted from these prohibitions in section 4 are those shops described in Part 3; which includes those in Schedule 1 of the Act (chemists, newsagents, pet shops, fruit and vegetable shops, tobacconists, and so on), small shops satisfying section 8, certain licensed premises or those given an exemption under section 10.
Exemptions under section 10 of the Act
In order to obtain the Director-General’s exemption under section 10 of the Act, an application is required to be lodged along with a fee prescribed by the Regulations ($100 at time of writing).
The Director-General must only grant an exemption if they are satisfied that there are exceptional circumstances of a type sufficient to justify a public interest to do so. They are to have regard to the following factors in subsection 10(2):
- the nature of the shop and the kinds of goods sold by the shop,
- the need for the shop to be kept open on the day concerned,
- the likely effect of the proposed exemption on the local economy, tourism and other businesses in the area,
- the likely effect of the proposed exemption on employees of, or persons working in, the shop,
- if the application for the exemption is not made by the occupier of the shop, the likely effect of the proposed exemption on the occupier,
- any other matters the Director-General considers to be relevant.
Procedure for applying for an exemption under section 10
An application must not be made later than 28 days prior to the restricted trading day applied for.
All applications can be viewed on the NSW Industrial Relations’ internet website for 21 days in which time interested members of the public can comment. The Director-General’s decision to reject or approve an application (and reasons, if applicable), and any conditions imposed, will be published on the NSW Industrial Relations’ internet website. Granted exemptions will apply for a period not exceeding three years.
Some failed applications
From the above internet website, I have selected some entities that have had their application to trade on a restricted trading day refused:
- Kmart for Easter Sunday and Boxing Day (2010, 2011, 2012)
- Myer for Easter Sunday (2010)
- David Jones for Easter Sunday (2010)
- YD for Good Friday, Easter Sunday, Christmas Day, Boxing Day and ANZAC Day (2009, 2010, 2012)
- IKEA for Boxing Day (2009, 2010, 2011)
The list is quite an interesting read.
Staffing on restricted trading days
It is interesting to note that where a shop has been given a section 10 exemption by the Director-General, subsection 13(1) states that staff must not be coerced, harassed, threatened or intimidated to work on the restricted trading day. The person must have freely elected to work on that day. Merely being rostered to work on a restricted trading day is not taken to be a free election by that person to work.
It is an offence not to comply (maximum penalty of 50 penalty units [$550]).