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.
All shops are allowed to trade on Boxing Day provided employees volunteer to work. Penalty rates above ordinary wages apply. For more information about penalty rates consult the Fair Work Ombudsman.
For any enquiries related to Boxing Day 2018, please call 131 628 and select option 6. Industrial Relations will continue to answer phone calls and enquiries during this time.
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 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:
- 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).
- Small shop retailers.
- Businesses located within one of the exempted Local Government Areas.
- Businesses that have an existing section 10 exemption to trade.
- Businesses that hold a hotel licence.
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 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.
Other business types that could be exempt:
- restaurants, cafes or kiosks
- seafood shops
- bazaars, fairs or markets if conducted for public fundraising
- book stores
- cake and pastry shops
- cooked provision shops
- fruit and vegetable shops
- newsagencies and souvenir shops
- pet shops
- recorded music, video or DVD shops
- shops ancillary to venues for playing sport or physical recreation
- takeaway food and drink stores
- vehicle retailers, vehicle service centres or petrol stations.
Shops located in specific LGAs are exempted from the requirement to remain closed.
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  NSWADT 312.
Fair Trading will consider:
- the nature of the shop and kind of goods sold
- the need for the shop to remain open on the day concerned
- the likely effect of the proposed exemption on the local area
- the likely effect of the proposed exemption on employees working in the shop.
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. 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.
An employer should ask who is willing to work on a restricted trading day for holiday pay loadings. If none of the staff volunteer, 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.
A manager cannot be pressured by their head office to open on restricted trading days or other public holidays without choosing to. The Retail Trading Act 2008 overrides any workplace agreement in relation to the shop opening on a restricted trading day.
Small shops are exempt from freely elect to work provisions.
Employees who work on restricted trading days should be paid 250% of their normal base wage. 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.
Takeaway liquor stores and licensed venues cannot trade on Good Friday or Christmas Day under the Liquor Act.
The standard trading hours for liquor stores are 5am to 10pm Monday to Saturday and from 10am to 10pm on Sundays. An application needs to be lodged with Liquor and Gaming NSW to trade outside of these hours.
Liquor stores that are classified as small shops may trade on restricted trading days provided the number of people who own the store does not exceed two and the number of regular workers does not exceed four, whether working at the same time or different times.
Fair Trading may grant an exemption for a liquor store to trade on restricted days, excluding Good Friday and Christmas Day under the Liquor Act. If an exemption is granted it will apply for a period of up to three years.
Banks and financial institutions
Banks and financial institutions can open their retail branches on the August Bank Holiday and certain public holidays other than Good Friday, Easter Sunday, before 1pm on ANZAC Day and Christmas Day provided staff have freely elected to work on that day and Fair Trading has determined it would be in the public's best interests to grant approval.
Banks can open on weekends if they apply for an exemption and it is in the public interest for them to do so.
If an application is successful the bank or financial institution is not exempt from opening on other restricted days which fall on a Saturday or Sunday, for example ANZAC Day or Easter Sunday.
Financial institutions can open their retail branches on the August Bank Holiday provided:
- the branch's employees have freely elected to work on that day.
- the financial institution has no more than 5 employees.
- the staff who elect to work receive a substituted day off in lieu of the Bank Holiday.
There are no current applications.
The following applications have been approved
|Year applied||Business||Location||Day sought|
|2018||St George||Bondi Junction||Sundays|
|2017||Suncorp-Metway Ltd - Amended application||Sydney||Bank Holiday, Saturdays, Sundays and public holidays which are not restricted|
|2017||Suncorp-Metway Ltd||Sydney||Bank Holiday, Saturdays, Sundays and public holidays which are not restricted|
|2017||Suncorp-Metway Ltd||Barangaroo||Saturday and Sunday|
|2016||Suncorp-Metway Ltd||Parramatta||Bank Holiday, Saturdays and Sundays|
|2016||Community Mutual Ltd t/as Regional Australia Bank||Armidale, Dubbo and Tamworth||Bank Holiday and Saturdays|
|2016||Greater Building Society Ltd||Various||Bank Holiday and Saturdays|
The following applications have been declined
|Year applied||Business||Location||Day sought|
|2018||Woolworths Group Ltd||All Woolworths supermarket stores in NSW||Christmas Day|
|2018||Romeo NSW Investments Pty Ltd and the Trustee for Romeo NSW Holding Trust||Oxford St and St Leonards||Christmas Day|
|2018||Dometic Australia Pty Ltd t/as Dometic||Rosehill Racecourse||Before 1pm on ANZAC Day|
|2018||Korr Lighting||Rosehill Racecourse||Before 1pm on ANZAC Day|
|2018||Coast RV Pty Ltd t/as Coast to Coast RV Services||Rosehill Racecourse||Before 1pm on ANZAC Day|
|2018||Woolworths Group Limited||Jindabyne||Easter Sunday|
|2018||Passel Australia Pty Ltd t/as IGA Xpress Woodburn||Woodburn||Easter Sunday, before 1pm on ANZAC Day and Boxing Day|
|2018||IGA Temora Pty Ltd||Temora||Easter Sunday|
|2017||Romeo NSW Investments Pty Ltd and the Trustee for Romeo NSW Holding Trust t/as Romeo's Rainbow Doonside||Doonside||Christmas Day|
|2017||Romeo NSW Investments Pty Ltd and the Trustee for Romeo NSW Holding Trust t/as Romeo's Supa IGA Summer Hill||Summer Hill||Christmas Day|
|2017||Freelance Shoes||QVB Sydney||Easter Sunday|
|2017||Alannah Hill||Sydney||Easter Sunday|
|2017||Anaconda Group Pty Ltd t/as Anaconda||Rosehill Gardens Racecourse||Before 1pm on ANZAC Day|
|2017||Futura Caravans Pty Ltd t/as Barnes Caravans||Rosehill Gardens Racecourse||Before 1pm on ANZAC Day|
|2017||Mictinole Pty Ltd t/as Kangaroo Tent City & BBQs||Rosehill Gardens Racecourse||Before 1pm on ANZAC Day|
|2017||CKJHT Outdoors Pty Ltd t/as Outdoor Instinct Pty Ltd||Rosehill Gardens Racecourse||Before 1pm on ANZAC Day|
|2017||Oztent Australia Pty Ltd||Rosehill Gardens Racecourse||Before 1pm on ANZAC Day|
|2017||Love Oil Collection Pty Ltd||Rosehill Gardens Racecourse||Before 1pm on ANZAC Day|
|2017||Ozpig Pty Ltd||Rosehill Gardens Racecourse||Before 1pm on ANZAC Day|
|2017||Amazing Vitality Pty Ltd t/as Amazing Vitality||Rosehill Gardens Racecourse||Before 1pm on ANZAC Day|
|2017||Dometic Australia Pty Ltd t/as Dometic||Rosehill Gardens Racecourse||Before 1pm on ANZAC Day|
|2017||Coast RV Pty Ltd t/as Coast to Coast RV Services||Rosehill Gardens Racecourse||Before 1pm on ANZAC Day|
|2017||The Trustee for D Barichello Family Trust t/as Newstyle Direct Pty Ltd||Rosehill Gardens Racecourse||Before 1pm on ANZAC Day|
|2017||Aussie Traveller Pty Ltd||Rosehill Gardens Racecourse||Before 1pm on ANZAC Day|
|2017||Horizon Global Pty Ltd t/as Cequent||Rosehill Gardens Racecourse||Before 1pm on ANZAC Day|
|2017||Camec Pty Ltd||Rosehill Gardens Racecourse||Before 1pm on ANZAC Day|
|2017||ARB Corporation Ltd t/as ARV 4x4 Accessories||Rosehill Gardens Racecourse||Before 1pm on ANZAC Day|
|2017||Traktek Pty Ltd t/as Bog Out||Rosehill Gardens Racecourse||Before 1pm on ANZAC Day|
|2017||Poron Pty Ltd t/as Polaris GPS & Rear Vision||Rosehill Gardens Racecourse||Before 1pm on ANZAC Day|
|2017||Nexberg Pty Ltd t/as Evacool||Rosehill Gardens Racecourse||Before 1pm on ANZAC Day|
|2017||Korr Lighting||Rosehill Gardens Racecourse||Before 1pm on ANZAC Day|
|2017||Donegan Assistance Group Pty Ltd t/as Transcool||Rosehill Gardens Racecourse||Before 1pm on ANZAC Day|
|2017||Safety Dave Pty Ltd||Rosehill Gardens Racecourse||Before 1pm on ANZAC Day|
|2017||Ortho-tex Pty Ltd t/as Wenatex The Sleep System||Rosehill Gardens Racecourse||Before 1pm on ANZAC Day|
|2017||Anrise Imports Pty Ltd t/as Oz Shop In & Oz Vice||Rosehill Gardens Racecourse||Before 1pm on ANZAC Day|
|2017||Van's Retail-IGA Lilyfield Pty Ltd t/as IGA Lilyfield||Lilyfield||Good Friday and Easter Sunday|
|2017||Coles Supermarkets Australia Pty Ltd||Various locations||Before 1pm on ANZAC Day|
|2017||Coles Supermarkets Australia Pty Ltd t/as Coles||World Square Shopping Centre||Easter Sunday|
|2016||Giordano Australia Pty Ltd t/as Giordano||Sydney, Darling Harbour and Haymarket||Christmas Day|
|2016||Platypus Shoes (Australia) P/L t/as Platypus||Haymarket||Good Friday, Easter Sunday, before 1pm on ANZAC Day and Christmas Day|
|2016||Lovisa Pty Ltd||Darling Harbour and Pitt Street||Good Friday and Easter Sunday|
|2016||DFS Australia Pty Ltd||The Rocks||Good Friday and Easter Sunday|
|2016||Birchan Pty Ltd t/as Vic's Meat Market||Pyrmont||Good Friday and Easter Sunday|
Exemption not required
|Year applied||Business||Location||Day sought||Reason for decision|
|2017||Exotic Filled Candy & Licorice||Rosehill Gardens Racecourse||Before 1pm on ANZAC Day||Small shop|
|2017||Getabout 4wd Adventures t/as Tow-Ed||Rosehill Gardens Racecourse||Before 1pm on ANZAC Day||Not a retail shop|
|2017||Getabout 4wd Adventures t/as Getabout Training Services||Rosehill Gardens Racecourse||Before 1pm on ANZAC Day||Not a retail shop|
|2017||Apollo Motorhome Holidays Pty Ltd t/as Apollo RV Sales||Rosehill Gardens Racecourse||Before 1pm on ANZAC Day||Vehicle shop|
|2017||Market Direct Group t/as Market Direct Campers & AUSRV||Rosehill Gardens Racecourse||Before 1pm on ANZAC Day||Vehicle 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 decision||Purpose of decision||Location of the decision||Effect of the decision|
|23 March 2016||To amend an existing application||Bega Valley Shire LGA||To allow all shops in the specified LGA that are not otherwise exempt to open on Good Friday and Easter Sunday subject to conditions|