Boxing Day sales and restrictive trading – The law behind whether or not you can sales shop on the 26 December 2015

Did you go Boxing Day sales shopping on 26 December or did you have to wait until 27 December? Growing up in Adelaide, I found it very frustrating that the Boxing Day sales started on 26 December in other states, but Adelaide had to wait until the 27 December because of restrictive retail trading hours. South Australia, Western Australia and Queensland have traditionally had more restrictions on retail trade than New South Wales, Victoria and Tasmania. In fact, Tasmania has the most simple and deregulated retail trading system out of all the states. In this blog post I look at the state legislation, including restrictive trading legislation, behind Boxing Day sales.

Public holidays and restrictive trading laws are state based

In the division of powers between Commonwealth and state governments, state governments have the residual power to legislate for public holidays. State governments also have the power to regulate retail trading hours. Some public holidays are known as “national public holidays”, as each state has legislated for those days to be public holidays. A list of national public holidays can be found in s.115(1) of the Fair Work Act 2009. State specific public holidays are located in state statute. Public holidays are fantastic for those who work full time, as the Fair Work Act 2009 gives certain employees the right to be paid their base rate of pay on the public holiday (s.116) and an entitlement to be absent from work for the public holiday, though an employer can require an employee to work if the request is reasonable (s.114).

Boxing Day is a national public holiday, as each state has legislated to make 26 December a public holiday:

1. New South Wales - s.4(k) of the Public Holidays Act 2010 (NSW);

2. Victoria – s.6 of the Public Holidays Act 1993 (Vic);

3. South Australia – s.3(2) Holidays Act 2010 (SA);

4. Western Australia – s.5 and Second Schedule Public and Bank Holidays Act 1972 (WA);

5. Queensland – s.2 and Schedule Holidays Act 1983 (Qld); and

6. Tasmania – s.4 Statutory Holidays Act 2000 (Tas).

Whether retailers can trade on a public holiday is determined by restrictive trading laws on a state by state basis.

Restrictive trading on Boxing Day by state:

New South Wales

Restrictive trading days in NSW are Good Friday, Easter Sunday, Anzac Day (but only before 1pm), Christmas Day and Boxing Day (s.3 Retail Trading Act 2008 (NSW) (NSW RT Act). All shops predominantly selling retail goods are required to be closed on the restrictive trading days unless an exemption in Part 3 of the NSW RT Act applies (s.4 NSW RT Act). The general exemptions from trading on a restrictive trading day including exempt shops such as book shops, chemists, and florists (s.7 and Schedule 1); small shops where not more than two people are in the shop, one is the owner of the business, and neither of the persons in the shop are employees (s.8); and premises solely selling liquor or meals that have a hotel or small bar licence (s.9).

Significant changes were made to the NSW RT Act in 2015 by the Retail Trading Amendment Act 2015 (NSW)(Amendment Act). Schedule 1 of the Amendment Act inserted s.8A, an exemption to restrictive trading on Boxing Day only:

8A Shop not required to be closed on Boxing Day if staff freely elect to work

(1) A shop is not required to be kept closed on Boxing Day if the shop is staffed only by persons who have freely elected to work on that day.

(2) This section has effect despite any other provision of this Act and any other Act or law.

“Freely elected to work” is defined in s.3A in the negative. A person has not made a free election if they were coerced, harassed, threatened or intimidated or because the person is merely rostered or required by an Award or Enterprise Agreement to work on that day.

Prior to the introduction of s.8A, not all shops in NSW were able to open on Boxing Day. Now any retail shop may open on Boxing Day, as long as the staff have “freely elected to work on that day”.

In 2015, Boxing Day sales throughout NSW started on 26 December.

Victoria

Victorian retailers have been able to trade on Boxing Day for years, as under the Shop Trading Reform Act 1996 (Vic) shops to which the Act applies must remain closed during “ordinary shop closing times” (s.5(1)), and Boxing Day is not an ordinary shop closing time. Retail shops in Victoria are only required to be closed on Good Friday, Christmas Day and until 1pm on ANZAC Day (see definition of “ordinary shop closing times” in s.3). Not all shops are prohibited from trading on these days. Exempt shops in s.4 include chemists, petrol stations, and restaurants.

In 2015, Boxing Day sales throughout Victoria started on 26 December.

South Australia

South Australia retains restrictive trading laws on 26 December in non-CBD locations. Rundle Mall (CBD) is the only retail precinct permitted to be open on Boxing Day, and even then is only permitted to open from 11am-5pm which is a very limited 6 hour trading period compared to other states. Regional shopping centres cannot commence Boxing Day sales until 27 December. While small retail shops have no restrictions on trading hours (s.12C), general retail shops are restricted in their trading hours.

Shops outside the CBD district must be closed on 1 January, Easter Sunday, Christmas Day and Boxing Day (s.13 Shop Trading Hours Act 1977 (SA)), unless the Minister has granted an exemption (s.5). Anyone in doubt over the high levels of retail trading regulation in South Australia, should have a look at s.13 of the Shop Trading Hours Act 1977 which details the restricted hours retail shops can open throughout the year.

On an aside, South Australia has two part day public holidays on Christmas Eve and New Year’s Eve from 7pm to midnight (s.3B Holidays Act 2010), meaning that retail employers have to pay applicable public holiday penalty rates to employees for these periods.

Boxing Day sales in the Adelaide CBD commenced on 26 December 2015. Sales commenced in shopping precincts outside the CBD on 27 December 2015.

Western Australia

Western Australia is another highly regulated jurisdiction for retail trading. While the legislation remains restrictive, the Minister has made a number of orders enabling retail trade for general retail shops on most public holidays.

The Retail Trading Hours Act 1987 (WA) categorises shops into “general retail shops”, “small retail shops”, “special retail shops” and “filling stations” (s.10(1)). Large retailers like Myer and David Jones who engage in Boxing Day sales fall within the category of “general retail shops” (s.10(2)). General retail shops must be closed on public holidays (s.12(3)(d)) unless an order has been made by the Minister (of Commerce) to vary trading hours (s.12E). The Minister cannot authorise general retail shops to be open on ANZAC Day, Christmas Day or Good Friday (s.12E(3A)). The Minister has authorised trading on most public holidays aside from those specified in s.12E(3A). The Minister for Commerce authorised retail trading on Boxing Day from 8am to 6pm, as well as the Boxing Day public holiday on 28 December from 8am to 6pm.

Restaurants, cafes and take away food shops are not regulated by the Retail Trading Hours Act 1987.

Western Australian legislation is “special” in that it often splits the state into two by dividing the state into north of the 26^th parallel and south of the 26^th parallel. The Retail Trading Hours Act 1987 (WA) only applies to locations south of the 26^th parallel, which includes Perth where most of the retail trading in Western Australia occurs.

The Public and Bank Holidays Act 1972 (WA) gives the Minister the power to proclaim a half-holiday, such as those in South Australia – to my knowledge this has not occured.

In 2015, Boxing Day sales in Western Australia commenced on 26 December.

Queensland

The Trading (Allowable Hours) Act 1990 (Qld) categorises retail shops into “exempt shops”, “independent retail shops” and “non-exempt shops” (see ss.4 to 6). “Exempt shops” include antique shops, arts galleries and ice cream parlours (s.5). The definition of “independent retail shop” in s.6 is complex, but the definition excludes shops engaging over 20 persons at any one time. “Independent retail shops” have unrestricted trading hours except on Christmas Day, so can open on Boxing Day. Most large retail shops such as Myer and David Jones that participate in Boxing Day sales exceed 20 employees and will be “non-exempt shops”.

The trading hours of non-exempt shops are also regulated by orders made by the Queensland Industrial Relations Commission (QIRC). The Commission makes amendments to this Order on an ad hoc basis to regulate trading hours of non-exempt shops. Currently, non-exempt shops are required to close on Good Friday, Easter Sunday (South East Queensland area only), 25 April, Labour Day and Christmas Day.

In 2015, Boxing Day sales in Queensland commenced on 26 December.

Tasmania

The Tasmanian retail sector is relatively unregulated (probably because of the state’s small size). The Shop Trading Hours Act 1984 (Tas) only applies to retail businesses with 250 or more employees (includes all employees full time or otherwise) (s.4). Section 5 of the Shop Trading Hours Act 1984 (Tas), prohibits retail shops which fall in the definition of s.4 from opening on Christmas Day and Good Friday. Retail shops are not exempt from trading on Boxing Day.

In 2015, Boxing Day sales in Tasmania commenced on 26 December.

Conclusion

While most retail shops were able to open across Australia on 26 December in 2015, the reason retail shops were able to open in many jurisdictions was dependent on an order being made by a Minister or a tribunal. The right to trade on Boxing Day can easily be removed by order. Certain jurisdictions such as Tasmania and Victoria are not reliant on orders being made for the right to trade on Boxing Day. While NSW has removed impediments to Boxing Day trading, the “freely elect to work” test is bound to fail. NSW should either go the full way to deregulation or go back to their earlier restrictive trade, rather than sit in an in-between position that is not fooling anyone. While there have been moves towards deregulation of retail trading on public holidays, there is a long way to go for states such as South Australia. While progress is slow, many retailers have adapted by moving their Boxing Day sales online. David Jones and Myer started their sales before their in-store sale started, a very welcome move.