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Retail Trading - FAQs 

1. Can shops trade on Boxing Day?  

Commencing this upcoming Boxing Day, retail shops that have previously been required under the old law to stay closed on 26 December may open for trade on condition that all persons working in the shop freely elect to do so without any coercion, harassment, threat or intimidation by or on behalf of the occupier of the shop. Merely rostering a person to work on the day does not mean that they have freely elected to work.

Retailers including those in the former Sydney Trading Precinct that want to open should take care to ensure they comply with this condition. Fines of up to $11,000 per person found to have been coerced to work may apply.

 

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2. Can bottle shops (packaged liquor licensed shops) trade on Boxing Day? 

Under the new retail trading laws, package liquor shops across NSW will be able to open on Boxing Day on condition that all staff in the shop have freely elected to work. Independent liquor shops that qualify as ‘small shops’ under the retail trading laws are already allowed to open. Small shops are not subject to the freely elect to work conditional exemption.

All liquor shops remain subject to the Liquor Act 2007 and local planning controls.

 

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3. Can banks open on Boxing Day? 

Banks will be permitted to open their retail branches for business on the August Bank Holiday and all public holidays (apart from Good Friday, Easter Sunday, before 1pm on Anzac Day and Christmas Day) on the condition that all persons working in the branch freely elect to do so without any coercion, harassment, threat or intimidation by or on behalf of the occupier of the shop. Merely rostering a person to work on the day does not mean that they have freely elected to work.

Banks that wish to open their retail branches should take care to ensure they comply with this condition. Fines of up to $11,000 per person found to have been coerced to work may apply.

 

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4. Can financial institutions such as credit unions open on August Bank Holiday? 

‘Financial institutions’ as defined in the Retail Trading Act are permitted to open their retail branches for business on the August Bank Holiday provided one of the following criteria is met:

  • the branch of the financial institution must be staffed by persons who have freely elected to work on the day
  • an industrial instrument provides for employees employed in the retail business of the financial institution to receive a substituted day off in lieu of Bank Holiday for working on Bank Holiday
  • the financial institution has no more than 5 employees.

Financial institutions are not restricted from opening their retail branches on any other day under the Retail Trading Act.

 

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5. Can the occupier of a shop be forced to open on Boxing Day or any other restricted trading day? 

Any provision of a lease is void to the extent that it requires the occupier of a shop to keep the shop open at any time on Boxing Day or any other restricted trading day.

This includes either an agreement or arrangement between the occupier of the shop and owner of the premises in which the shop is located, or if the occupier is a sub-lessee, between the occupier and the lessee.

In addition, any landlord that compels a shopkeeper to open on a restricted trading day may be liable for a fine of up to $22,000.

 

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6. What are the restricted Retail Trading Days in NSW? 

In the retail trading sector the following days are restricted trading days under the Retail Trading Act 2008:

  • Good Friday
  • Easter Sunday
  • ANZAC Day (prior to 1 pm)
  • Christmas Day
  • Boxing Day (a conditional exemption applies – see above)

 

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7. Who can trade on the restricted days? 

In order to open on a restricted trading day your shop must be exempt – see list below:

If your business has an exemption to open on any of the restricted trading days freely elect to work provisions apply except in relation to a ‘small shop’ exemption.

 

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8. Evidence that a shop is unlawfully open 

Non-exempt shops must remain closed on restricted trading days.

Being closed is not just a matter of the doors being locked. It also means particular activities cannot be undertaken inside the retail premises. For example: packing shelves, unloading trucks or preparing food.

If these types of activities are carried out in a non-exempt shop on a restricted trading day the shop will be deemed to be open and substantial fines will apply under the Retail Trading Act.

Unless their shop is exempt, retailers must not permit any person to participate in these activities, irrespective of whether they have volunteered to work on a restricted trading day.

 

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9. What are the exempted Local Government Areas?  

Retailers operating in locations which were exempted from public holiday restrictions under the former section 89B of the Shops and Industries Act 1962 are also exempted from the Retail Trading Act 2008 and therefore do not need to apply for a separate exemption.

A list of these locations is available, based on local government areas (pdf - 27Kb).

If you would like to check which towns are located within a Local Government Area, you can use the 'Council Search' facility on the Office of Local Government website.

Freely elect to work provisions on restricted trading days apply to this category of shops.

 

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10. What does freely elect to work mean? 

Freely elect to work provisions that apply to restricted trading days means that workers must not be coerced, harassed, threatened or intimidated by or on behalf of the occupier of the shop. Merely rostering a person to work on the day does not mean that they have freely elected to work.

 

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11. What does a person do if they believe they have suffered detrimental consequences at their workplace as a result of not attending work in a shop on Boxing Day? 

Any person who chooses to exercise their right not to attend work on Boxing Day or any other restricted trading day and who experiences adverse consequences as a result, may be able to lodge a claim for adverse action, discrimination or bullying under the Commonwealth’s Fair Work Act 2009.

If you require further information on your workplace rights under the Fair Work Act you should call the Fair Work Ombudsman on 13 13 94 or seek legal advice.

Note: Whether adverse action, discrimination or bullying has occurred will depend upon the particular facts of each case.

 

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12. What is a small shop? 

A small shop under the Act is identified as follows:

  • If the number of people that own the shop does not exceed 2, or one corporation, and the owner or owners of the shop take the profits from the business.
  • The total number of employees engaged by a small shop must not exceed a total of 4 regular employees, whether working at the same time or different times.

The number of persons engaged in a small shop does not include:

  • The occupier or occupiers. If the occupier is a corporation, then 2 natural persons who are shareholders of the corporation; or
  • Any person engaged in an emergency during the absence from the shop for part of a day of a person who is engaged in the shop on that day; or
  • Any person engaged outside the normal working hours of any person engaged on a full-time basis.

If the owner of a shop is a corporation or a Director of a corporation and is engaged in another business, then it fails to comply with the definition of a small shop.

Freely elect to work provisions on restricted trading days do not apply to ‘small shops’.

 

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13. What is a Schedule 1 Exempt Shop? 

The following shops are exempt shops listed in Schedule 1 of the Retail Trading Act 2008.

  • Bazaars, fairs or markets if the bazaars, fairs or markets are conducted for charitable or public fundraising purpose
  • Book shops
  • Cake and pastry shops
  • Chemists shops
  • Cooked provision shops
  • Florists shops
  • Fruit and vegetable shops
  • Newsagencies
  • Nurseries
  • Pet shops
  • Recorded music, video or dvd shops
  • Restaurants, cafes or kiosks
  • Seafood shops
  • Shops ancillary to venues for playing sport of physical recreation
  • Souvenir shops
  • Take-away food and drink shops
  • Tobacconists shops
  • Vehicle shops, vehicle service centres or petrol stations

Freely elect to work provisions on restricted trading days apply to Schedule 1 Exempt shops.

 

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14. How do I seek an exemption to trade on a restricted day? 

Section 10 of the Act identifies that the Secretary may grant an exemption to a shop enabling it to trade on restricted days.

An application seeking an exemption to trade on a restricted day must be made no later than 28 days before the restricted day falling that the exemption is being made for. Any application received within 28 days of the restricted day will not be considered for that day.

If granted, exemptions will apply for a period not exceeding three years.

An application must be submitted on the approved form (pdf 90Kb and word versions).

All completed applications must be returned to: shoptrading@industrialrelations.nsw.gov.au
or
NSW Industrial Relations
GPO Box 5469
Sydney NSW 2001

Applications will need to clearly identify the restricted day the application applies to, the duration of the exemption being sought and the proposed trading hours being sought for the restricted day.

Applications can only be made by the occupier of the shop, may be made in respect of more than one shop and can only be for current stores. Applications cannot be made for future stores.

 

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15. What is the test for an exemption under section 10 of the Act? 

In dealing with any application for an exemption, the Secretary must not grant an exemption for a shop unless the Secretary is satisfied that there are exceptional circumstances of the case and that it is in the public interest to grant the exemption.

"Exceptional circumstances" must be more than "special circumstances" to satisfy the requirements under section 10(2) of the Retail Trading Act 2008.

[For guidance on the test for "exceptional circumstances", please refer to Dwyer v Department of Services, Technology and Administration and Kmart Australia Limited [2010] NSWADT 312.]

In considering an application, the Secretary must have regard to the following matters:

a) The nature of the shops and kind of goods sold,
b) The need for the shop to be kept open on the day concerned,
c) The likely effect of the proposed exemption on the local economy, tourism and small and other businesses in the area,
d) The likely effect of the proposed exemption on employees of, or persons working in, the shop.

All applications will be displayed for a period of at least 14 days on the departmental website.

During this 14 day period, public comment is invited regarding any application received by the Department.

The Secretary must have regard to any public comment received during the 14 day period.

 

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16. Does a decision regarding an application to trade on a restricted trading day need to be published? 

Once the Secretary has made a decision regarding an application, the Secretary must publish on the departmental website an order granting an exemption, and the reasons for any decision to grant or not grant an exemption.

Any order and reasons are to be published as soon as practicable once a decision has been made. Current decisions can be found at http://www.industrialrelations.nsw.gov.au/oirwww/Industries_and_Awards/Retail_industry.page

 

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