Trading on public holidays

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.

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. 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. Small shops are free from the requirement that staff only work if they want to. A full definition of 'small shop' is outlined in section 8 of the Retail Trading Act.
3. Businesses located within one of the exempted Local Government Areas. However, Exempt Local Government Areas are not exempt from the requirement to remain closed on Anzac Day.
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.
6. Business types listed in Schedule 1 of the Retail Trading Act 2008.

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.

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 a Fair Trading exemption to trade application form (PDF, 589.37 KB) 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 Service, 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@customerservice.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.

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.

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.

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 can open their retail branches on the August Bank Holiday (which falls on the 1^st week of August) and all public holidays other than Good Friday, Easter Sunday, 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 PDF, 1058.23 KB 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 Fact sheet: Weekend trading by banks PDF, 413.42 KB.

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.

Declined applications

Declined applications

Declined applications

Approved applications

Exemption not required

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