Trading on public holidays

Under the Retail Trading Act 2008, some days are considered ‘restricted’.  Larger businesses cannot open on these days unless they have obtained an exemption from NSW Fair Trading and are allowed to operate.

The laws intend to strike a balance between the rights of workers to spend time off with their friends or families on public holidays, the opportunity for retail workers to earn additional income and the expectations of the public.

The following days are restricted days:

  • Good Friday
  • Easter Sunday
  • ANZAC Day (until 1pm)
  • Christmas Day
  • Boxing Day.

A non-exempt shop must remain closed on restricted trading days. A shop is considered open if:

  • goods were sold or offered for sale at the shop
  • goods were available for review in the shop
  • previously sold goods were delivered, or available for delivery
  • orders for goods were received and/or processed by a person working at the shop
  • goods were received, unpacked or otherwise prepared for sale at the shop eg staff packing shelves
  • stocktaking was carried out at the shop.

Boxing Day

Under section 8A a conditional exemption applies to Boxing  Day. All shops are allowed to trade on Boxing Day provided employees freely elect to work. This overrides any lease conditions or arrangement which compel shops to open. Penalty rates above ordinary wages apply. For more information about penalty rates consult the Fair Work Ombudsman.

Current applications

Current applications for an exemption to trade on restricted days are displayed on our website. We provide 14 days from the date of publication for public comment. Fair Trading must consider any public comment received during the 14 day period.

Public comments can be submitted via email to FTLicensing@finance.nsw.gov.au.

We will publish the outcome in this section of our website as soon as possible after a decision has been made. An applicant or any other interested party can apply to the NSW Civil and Administrative Tribunal (NCAT) to have the decision reviewed.

Further information

Fair Trading's role

Administration of the Retail Trading Act 2008 was transferred from NSW Industrial Relations to Fair Trading NSW on 21 December 2018.

Fair Trading can assist with enquiries about:

  • who can trade on restricted days
  • how to get an exemption (application process)
  • the rights and responsibilities of businesses and workers
  • employees being forced to work.

In the most serious of cases Fair Trading may prosecute for breaches of legislation.

Inspectors

Inspectors can require a business to produce any records relating to the operation of a shop at a particular time, such as worker timesheets, business receipts or any other relevant information.

Who can open on a restricted trading day?

In order to open on a restricted trading day, a shop must be exempt. This includes:

  1. Businesses who want to open on Boxing Day under the section 8a conditional exemption  (a shop is not required to be kept closed on Boxing Day if the shop is staffed only by employees who have freely elected to work on that day).
  2. Small shop retailers.
  3. Businesses located within one of the exempted Local Government Areas.
  4. Businesses that have an existing section 10 exemption to trade.
  5. Businesses that hold a hotel licence or small bar licence and meet certain conditions.

All other businesses must apply for an exemption to open on any of the restricted days other than Boxing Day.

Small shops can open on a restricted trading day without applying for an exemption and are free from the requirement that staff only work if they want to.

Small shops are generally defined as employing four or fewer staff (whether working at the same time or different times), and with no more than two owners who share in the shop's profits. A full definition of 'small shop' is outlined in section 8 of the Retail Trading Act.

Other business types that are exempted are listed in Schedule 1 of the Retail Trading Act 2008.

How to apply to trade on a restricted day

Retailers need to supply all the required information when submitting an exemption to trade application otherwise the application process could be delayed including:

  • the business and the restricted trading day (including each location if there is more than one)
  • proposed days and trading hours
  • the type of goods sold
  • the need for the shop to be open on the restricted trading day
  • the likely effect of the proposed exemption on the local economy, tourism and other businesses in the area
  • the number of employees and the likely effect of the proposed exemption on the shop’s workers.

Retailers need to submit an exemption to trade application form (72kb) with any relevant documentation no later than 28 days before the restricted trading day, otherwise it will not be considered.

If a retailer has more than one store location they are seeking an exemption for, they will need to provide supporting information based on each individual location.

A restricted trading day exemption will only be granted if Fair Trading is satisfied there are ‘exceptional circumstances’ to operate and it is in the public interest as per section 10(2) of the Retail Trading Act 2008.

For further information on the test for ‘exceptional circumstances’ refer to Dwyer v Department of Services, Technology and Administration and Kmart Australia Limited [2010] NSWADT 312.

Fair Trading will consider:

  1. the nature of the shop and kind of goods sold
  2. the need for the shop to remain open on the day concerned
  3. the likely effect of the proposed exemption on the local area
  4. the likely effect of the proposed exemption on employees working in the shop.

Current applications for an exemption to trade on restricted days are displayed on our website. We provide a minimum of 14 days from the date of publication for public comment. Fair Trading must consider any public comment received during the minimum 14 day period.

Public comments can be submitted via email to FTLicensing@finance.nsw.gov.au

Once the Secretary has made a decision regarding an application, the decision showing an order granting an exemption, and the reasons for any decision to grant or not grant an exemption will be published on our website as soon as practicable once a decision has been made.

If an application is declined, applicants can appeal the decision by requesting an internal review by Fair Trading within 28 days of the published outcome. The review will be completed by an officer not involved with the original assessment and will consider:

  • the process
  • the reasons given for refusal
  • if the outcome is in line with the legislation
  • any relevant case law.

We will respond within 21 days from lodgement.

Appeals can also be lodged with NSW Civil and Administrative Tribunal (NCAT). NCAT generally considers appeals that have first gone through the internal review process.

The rights of workers

Staff must freely choose to work and cannot be coerced, harassed, threatened or intimidated to work on a restricted trading day.

A staff member being rostered to work on a restricted trading day does not mean they have freely elected to work.

If none of the staff volunteer to work on a restricted trading day, casuals may then be recruited to fill any shortfall.

If an employee previously agreed to work and no longer wishes to work on a restricted trading day they cannot be forced to. Small shops are exempt from 'freely elect to work' requirements.

If an employee believes their employer has unfairly treated them after refusing to work or has any other employment related questions they should contact the Fair Work Ombudsman.

A fine of up to $11,000 per employee may apply for any employer who is found to have coerced an employee into working on a restricted trading day or public holiday.

The rights of retailers

A shopkeeper cannot be forced by their landlord to open on a restricted trading day.

A landlord may be fined up to $22,000 if found to have compelled a shopkeeper to open. If a tenancy agreement contains a clause requiring a retailer to open a store on a restricted trading day it is overridden by the Retail Trading Act 2008.

For further information on which award applies or other employment matters, visit the Fair Work Ombudsman's website.

Unless the retailer is exempt, they must not allow any employee to conduct any activities related to trading such as packing shelves, unloading trucks or preparing goods for sale regardless of whether or not the employee volunteered to work on a restricted trading day.

Liquor traders

Businesses operating under a hotel or small bar licence where liquor is sold with a meal and consumed in the dining area on the licensed premises or trading in certain Local Government Areas and those classified as small shops are exempt from requirements to remain closed on restricted trading days . All other liquor traders are required to remain closed on restricted trading days.

Takeaway liquor stores must comply with both the Retail Trading Act 2008 and the Liquor Act 2007 in relation to restricted trading days and trading hours.

For more information, contact Liquor and Gaming NSW or Fair Trading.

Banks and financial institutions

Banks can open their retail branches on the August Bank Holiday (which falls on the 1st week of August) and all public holidays other than Good Friday, Easter Sunday, before 1pm on ANZAC Day and Christmas Day without having to seek an exemption, provided staff have freely elected to work on that day.

Banks must apply in writing using the Fair Trading Bank Close Day application form for an exemption to open on Saturdays and Sundays and may be granted approval if it is in the public interest. If an application is successful, the bank must remain closed on restricted days which fall on a Saturday or Sunday, for example ANZAC Day or Easter Sunday.

For further details, refer to the Retail Trading Act section 14f or view the Factsheet: Weekend trading by banks.

Financial institutions, such as a credit union, do not need to apply to Fair Trading for an exemption to trade on a Bank Holiday and can open if:

  • staff have freely elected to work on that day or
  • employees who work receive the minimum award rate and a substituted day off in lieu of working the public holiday or
  • the financial institution has no more than 5 employees.

Previous applications

The following applications have been approved

Year appliedBusinessLocationDay sought
2018St GeorgeBondi JunctionSundays
2018IMB BankMenaiSaturdays
2017Suncorp-Metway Ltd - Amended applicationSydneyBank Holiday, Saturdays, Sundays and public holidays which are not restricted
2017Suncorp-Metway LtdSydneyBank Holiday, Saturdays, Sundays and public holidays which are not restricted
2017Suncorp-Metway LtdBarangarooSaturday and Sunday
2016Suncorp-Metway LtdParramattaBank Holiday, Saturdays and Sundays
2016Community Mutual Ltd t/as Regional Australia BankArmidale, Dubbo and TamworthBank Holiday and Saturdays
2016Greater Building Society LtdVariousBank Holiday and Saturdays

The following applications have been declined

Year appliedBusinessLocationDay sought
2019Christian Dior Castlereagh Street SydneyEaster Sunday
2019Louis Vuitton George Street SydneyEaster Sunday
2019Supa IGA PyrmontGood Friday and Easter Sunday
2019Supamart IGA TramshedsCremorneGood Friday and Easter Sunday
2019Woolworths Group LtdJindabyneEaster Sunday
2018Woolworths Group LtdAll Woolworths supermarket stores in NSWChristmas Day
2018Romeo NSW Investments Pty Ltd and the Trustee for Romeo NSW Holding TrustOxford St and St LeonardsChristmas Day
2018Dometic Australia Pty Ltd t/as DometicRosehill RacecourseBefore 1pm on ANZAC Day
2018Korr LightingRosehill RacecourseBefore 1pm on ANZAC Day
2018Coast RV Pty Ltd t/as Coast to Coast RV ServicesRosehill RacecourseBefore 1pm on ANZAC Day
2018Woolworths Group LimitedJindabyneEaster Sunday
2018Passel Australia Pty Ltd t/as IGA Xpress WoodburnWoodburnEaster Sunday, before 1pm on ANZAC Day and Boxing Day
2018IGA Temora Pty LtdTemoraEaster Sunday
2017Romeo NSW Investments Pty Ltd and the Trustee for Romeo NSW Holding Trust t/as Romeo's Rainbow DoonsideDoonsideChristmas Day
2017Romeo NSW Investments Pty Ltd and the Trustee for Romeo NSW Holding Trust t/as Romeo's Supa IGA Summer HillSummer HillChristmas Day
2017Freelance ShoesQVB SydneyEaster Sunday
2017Alannah HillSydneyEaster Sunday
2017Anaconda Group Pty Ltd t/as AnacondaRosehill Gardens RacecourseBefore 1pm on ANZAC Day
2017Futura Caravans Pty Ltd t/as Barnes CaravansRosehill Gardens RacecourseBefore 1pm on ANZAC Day
2017Mictinole Pty Ltd t/as Kangaroo Tent City & BBQsRosehill Gardens RacecourseBefore 1pm on ANZAC Day
2017CKJHT Outdoors Pty Ltd t/as Outdoor Instinct Pty LtdRosehill Gardens RacecourseBefore 1pm on ANZAC Day
2017Oztent Australia Pty LtdRosehill Gardens RacecourseBefore 1pm on ANZAC Day
2017Love Oil Collection Pty LtdRosehill Gardens RacecourseBefore 1pm on ANZAC Day
2017Ozpig Pty LtdRosehill Gardens RacecourseBefore 1pm on ANZAC Day
2017Amazing Vitality Pty Ltd t/as Amazing VitalityRosehill Gardens RacecourseBefore 1pm on ANZAC Day
2017Dometic Australia Pty Ltd t/as DometicRosehill Gardens RacecourseBefore 1pm on ANZAC Day
2017Coast RV Pty Ltd t/as Coast to Coast RV ServicesRosehill Gardens RacecourseBefore 1pm on ANZAC Day
2017The Trustee for D Barichello Family Trust t/as Newstyle Direct Pty LtdRosehill Gardens RacecourseBefore 1pm on ANZAC Day
2017Aussie Traveller Pty LtdRosehill Gardens RacecourseBefore 1pm on ANZAC Day
2017Horizon Global Pty Ltd t/as CequentRosehill Gardens RacecourseBefore 1pm on ANZAC Day
2017Camec Pty LtdRosehill Gardens RacecourseBefore 1pm on ANZAC Day
2017ARB Corporation Ltd t/as ARV 4x4 AccessoriesRosehill Gardens RacecourseBefore 1pm on ANZAC Day
2017Traktek Pty Ltd t/as Bog OutRosehill Gardens RacecourseBefore 1pm on ANZAC Day
2017Poron Pty Ltd t/as Polaris GPS & Rear VisionRosehill Gardens RacecourseBefore 1pm on ANZAC Day
2017Nexberg Pty Ltd t/as EvacoolRosehill Gardens RacecourseBefore 1pm on ANZAC Day
2017Korr LightingRosehill Gardens RacecourseBefore 1pm on ANZAC Day
2017Donegan Assistance Group Pty Ltd t/as TranscoolRosehill Gardens RacecourseBefore 1pm on ANZAC Day
2017Safety Dave Pty LtdRosehill Gardens RacecourseBefore 1pm on ANZAC Day
2017Ortho-tex Pty Ltd t/as Wenatex The Sleep SystemRosehill Gardens RacecourseBefore 1pm on ANZAC Day
2017Anrise Imports Pty Ltd t/as Oz Shop In & Oz ViceRosehill Gardens RacecourseBefore 1pm on ANZAC Day
2017Van's Retail-IGA Lilyfield Pty Ltd t/as IGA LilyfieldLilyfieldGood Friday and Easter Sunday
2017Coles Supermarkets Australia Pty LtdVarious locationsBefore 1pm on ANZAC Day
2017Coles Supermarkets Australia Pty Ltd t/as ColesWorld Square Shopping CentreEaster Sunday
2016Giordano Australia Pty Ltd t/as GiordanoSydney, Darling Harbour and HaymarketChristmas Day
2016Platypus Shoes (Australia) P/L t/as PlatypusHaymarketGood Friday, Easter Sunday, before 1pm on ANZAC Day and Christmas Day
2016Lovisa Pty LtdDarling Harbour and Pitt StreetGood Friday and Easter Sunday
2016DFS Australia Pty LtdThe RocksGood Friday and Easter Sunday
2016Birchan Pty Ltd t/as Vic's Meat MarketPyrmontGood Friday and Easter Sunday

Exemption not required

Year appliedBusinessLocationDay soughtReason for decision
2017Exotic Filled Candy & LicoriceRosehill Gardens RacecourseBefore 1pm on ANZAC DaySmall shop
2017Getabout 4wd Adventures t/as Tow-EdRosehill Gardens RacecourseBefore 1pm on ANZAC DayNot a retail shop
2017Getabout 4wd Adventures t/as Getabout Training ServicesRosehill Gardens RacecourseBefore 1pm on ANZAC DayNot a retail shop
2017Apollo Motorhome Holidays Pty Ltd t/as Apollo RV SalesRosehill Gardens RacecourseBefore 1pm on ANZAC DayVehicle shop
2017Market Direct Group t/as Market Direct Campers & AUSRVRosehill Gardens RacecourseBefore 1pm on ANZAC DayVehicle shop

The following decision has been made by the Treasury Secretary under Schedule 2, part 2, clause 2(3) of the Retail Trading Act 2008

Date of decisionPurpose of decisionLocation of the decisionEffect of the decision
23 March 2016To amend an existing applicationBega Valley Shire LGATo allow all shops in the specified LGA that are not otherwise exempt to open on Good Friday and Easter Sunday subject to conditions
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