Published in The Adviser (September 2009)

In July last year a new Act repealed the Shop and Industries Act 1962, which was almost half a century old. The new Shop Trading Act changed the legal requirements for trading days so that general shops could open on a Sunday without having to apply for a specific exemption from the Department of Commerce.

What are the restricted trading days?

The new Act restricted trading days so that all shops must now be kept closed at all times:

• on Good Friday
• on Easter Sunday
• before 1 pm on Anzac Day
• on Christmas Day
• on Boxing Day.

Small business exemption

Small business is exempt from the restricted trading days. A small shop can have no more than two people who own the business and no more than four employees working in the shop on any day.

Applying for an exemption

General shops can apply for an exemption to the restricted trading days based on:

• 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.

If an exemption is granted, it's a condition of the exemption that employees 'freely elect to work' on a restricted day, even if they were rostered to work on that day.

What are the latest changes?

The NSW Minister for Industrial Relations, John Hatzistergos, has introduced draft amendments to the Shop Trading Bill that will reduce the ability of general shops to seek an exemption from the trading restrictions. If the Bill passes the Lower House, an exemption won't be granted unless 'it is in the exceptional circumstances of the case in the public interest to do so'. [Emphasis added].

The Bill will also:

• enable third parties to appeal to the Administrative Decisions Tribunal for reviews of decisions relating to such exemptions
• enable inspectors to require records relating to shop employees and business receipts to be produced for enforcement purposes
• render void any provision of a lease (or related agreement or arrangement) that requires an occupier of a shop to keep the shop open on a restricted trading day.

AFEI will monitor the Bill as it passes through the state Parliament and update you on any changes to your obligations when the Bill becomes law.