Regulation of shop trading hours
Shop Trading Amendment Bill 2009The NSW Parliament has recently passed legislation amending the Shop Trading Act 2008. The Shop Trading Amendment Act 2009 amends the Shop Trading Act 2008 by:
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Shop trading on unrestricted days
Other than the restricted days (see below), there are no restrictions on shop trading on any day of the week, including any Saturday, Sunday or late evenings.
Restricted trading days
The Shop Trading Act 2008 defines restricted trading days as:
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Good Friday
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Easter Sunday
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prior to 1pm on ANZAC Day
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Christmas Day
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Boxing Day
Shops that fall within the Act’s definition of a small shop or an exempt shop are permitted to trade on a restricted trading day.
Shops which are not small shops or exempt shops may only trade on a restricted day if an exemption has been granted.
Unless exempted, it is an offence under the Shop Trading Act 2008 to trade or advertise to trade on a restricted trading day.
topExempt Shops
The Act identifies a list of 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 Shop 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 are would like to check which towns are located within a Local Government Area, you can use the 'Council Search' facility on the Department of Local Government website.
Licensed Premises
The Shop Trading Act exempts premises operating under a hotel licence from being required to close on restricted days.
Unless a small shop or exempt shop, other licensed shops are required to remain closed on restricted days within the Shop Trading Act.
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:
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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.
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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:
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The occupier or occupiers. If the occupier is a corporation, then 2 natural persons who are shareholders of the corporation; or
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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
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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.
Seeking an exemption
Section 10 of the Act identifies that the Director-General may grant an exemption to a shop enabling it to trade on restricted days.
In dealing with any application for an exemption, the Director-General must not grant an exemption for a shop unless the Director-General is satisfied that there are exceptional circumstances of the case and that it is in the public interest to grant the exemption.
In considering an application, the Director 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 72Kb and word versions).
All completed applications must be returned to: shoptrading@services.nsw.gov.au
or
NSW Office of Industrial Relations
McKell Building
2 - 24 Rawson Place
Sydney NSW 2000
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 can not be made for future stores.
All applications will be displayed for a period of at least 21 days on the departmental website.
During this 21 day period, public comment is invited regarding any application received by the Department.
The Director-General must have regard to any public comment received during the 21 day period.
Publishing Decisions
Once the Director-General has made a decision regarding an application, the Director-General 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.
Deemed refusal of an application
If the Director-General has not made a decision before the end of 40 days after an application was made, the Director-General is taken to have refused to grant an exemption.
With the written consent of the applicant, the Director-General may allow a period greater than 40 days if determined.
Voluntary staffing arrangements on a restricted day
Section 13 of the Shop Trading Act clearly identifies that any employee of a shop granted an exemption to trade on a restricted day must freely elect to work on a restricted day without any coercion, harassment, threat or intimidation by or on behalf of the shop owner.
The Shop Trading Amendment Act 2009 now extends the voluntary staffing provisions to all previous exemptions granted, including those granted for a designated tourist area.
Failure to comply with the voluntary staffing provisions can attract a maximum penalty of 50 penalty points ($5500).
Lease Arrangements
Any provisions 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 it the occupier is a sub-lessee, between the occupier and the lessee.
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.
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.
Opening of banks on weekends
There has been no change to the process for a bank wishing to open a branch or branches on Saturdays or Sundays or both. They are required to make an application to the Director-General, Department of Services, Technology and Administration.
Existing approvals granted under Part 2 of the Shops and Industries Act 1962 and clause 4 of the Shops and Industries Regulations 2007 are taken to be an approval under the Act.
Shop Trading Act 2008 - Schedule 1 – Exempt Shops
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Bazaars, fairs or markets if the bazaars, fairs or markets are conducted for charitable or public fundraising purpose
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Book shops
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Chemists shops
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Cooked provision shops
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Florists shops
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Fruit and vegetable shops
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Newsagencies
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Nurseries
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Pet shops
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Recorded music, video or dvd shops
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Restaurants, cafes or kiosks
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Seafood shops
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Shops ancillary to venues for playing sport of physical recreation
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Souvenir shops
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Take-away food and drink shops
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Tobacconists shops
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Vehicle shops, vehicle service centres or petrol stations
