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Retail trading on unrestricted days 

Other than the restricted days (see below), there are no restrictions on retail trading on any day of the week, including any Saturday, Sunday or late evenings.

Restricted trading days 

The Retail Trading Act 2008 defines restricted trading days as:

Unless exempted, it is an offence under the Retail Trading Act 2008 to trade or advertise to trade on a restricted trading day.

Shops that are small shops or a Schedule 1 exempt shop within the meaning of the Act may be permitted to trade on any restricted trading day.

All shops may be permitted to trade on Boxing Day provided staff freely elect to work on that day.

In addition, a shop may open if it had an exemption granted under section 78A or 89B of the Shops and Industries Act 1962 allowing that shop to open on that restricted trading day and that exemption was still in force on 1 July 2008.

Shops which are not otherwise exempt may only trade on a restricted day if an exemption has been granted under section 10 of the Act.


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Exempt Shops 

The Act identifies a list of Schedule 1 Exempt Shops that are exempted from these provisions.

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.


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Small shop exemption 

In addition to those listed exempted shops, a small shop that falls with the definition of the Act is also exempted from the requirements to remain closed.

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.

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Voluntary staffing arrangements on a restricted day 

The Retail Trading Act 2008 clearly identifies that any employee of a shop exempted to trade on a restricted day must freely elect to work without any coercion, harassment, threat or intimidation by or on behalf of the shop owner.

Merely rostering a person to work on the day does not mean that they have freely elected to work.

However, voluntary staffing arrangements do not apply to ‘small shops’ as defined under the Act.

Failure to comply with the voluntary staffing provisions can attract significant fines.

Accordingly, retailers that wish to open on restricted trading days should take care to ensure they comply with the voluntary staffing provisions. Fines of up to $11,000 per person found to have been coerced to work may apply.

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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Licensed premises 

The Retail Trading Act 2008 does not apply to premises operating under a hotel or small bar licence issued under the Liquor Act 2007.

If you wish to know more about your obligations under the Liquor Act you should contact the Liquor and Gaming NSW on 1300 024 720.

Unless a small shop or exempt shop, other licensed shops are required to remain closed on restricted days under the Retail Trading Act 2008.


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Take away liquor stores 

Trading hour restrictions for packaged liquor stores are included in the Retail Trading Act 2008 and in the Liquor Act 2007. Liquor stores must comply with both sets of laws.

More information is contained in  Retail trading restrictions - a guide for take away liquor stores fact sheet (pdf - 288Kb).


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Seeking an exemption 

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

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.

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

All completed applications must be returned to:


NSW Industrial Relations
GPO Box 5469
Sydney NSW 2001

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.

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.

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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Publishing Decisions 

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.


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Deemed refusal of an application 

If the Secretary has not made a decision before the end of 40 days after an application was made, the Secretary is taken to have refused to grant an exemption.

With the written consent of the applicant, the Secretary may allow a period greater than 40 days if determined.


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Reviews by the Administrative Decisions Tribunal 

An applicant or any other person who considers themselves to have a sufficient interest in any decision, whether approved or refused, is able to apply to the Administrative Decisions Tribunal to have the decision reviewed.

The Administrative Decisions Tribunal is not required to review a decision if it is not satisfied that the person has sufficient interest in the application for an exemption.


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Lease Arrangements 

Any provision of a lease is void to the extent where there is a requirement that the occupier of a shop keep the shop open on any restricted day.

This includes either 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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Powers of inspectors 

Inspectors, for the purpose of investigation any contravention of the Act, have the authority to require a shop occupier to produce for inspection any records indicating hours worked by employees, business receipts and any other information required concerning the operation of a shop at particular times.

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Retail Trading Act 2008, Schedule 1, Exempt Shops 

The list of exempt shops:

  • 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

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