Retail Trading Act 2008 (NSW)

Retail Trading Act 2008 No 49 An Act with respect to the fair regulation of shop opening hours and restricted trading days, to provide for bank trading days, to repeal the Shops and Industries Act 1962 and to make consequential amendments to other Acts. Part 1 Preliminary 1 Name of Act This Act is the Retail Trading Act 2008. 2 Commencement This Act commences on 1 July 2008. 3 Definitions (1) In this Act— bank—see section 14A. Departmental website means the Internet website used for the time being by the Department of Customer Service to provide public access to information for the purposes of this Act. exercise a function includes perform a duty. function includes a power, authority or duty. inspector means an inspector within the meaning of the Industrial Relations Act 1996. occupier of a shop includes— (a) a person entitled to occupy the shop, and (b) a person managing or controlling, or apparently managing or controlling, a business carried on in the shop, and (c) a person who is, or appears to be, the employer of a person or persons working in a business carried on in the shop. premises means any land, structure (fixed or movable), vessel or other vehicle. restricted trading day means Good Friday, Easter Sunday, Anzac Day, Christmas Day or Boxing Day. Secretary means the Secretary of the Department of Customer Service. shop means premises— (a) that are used wholly or predominantly for the retail sale of goods, and (b) in or at which goods are sold or exposed or offered for sale by retail on one or more occasions. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes included in this Act do not form part of this Act. 3A Meaning of "freely elected to work" For the purposes of this Act, a person has not freely elected to work on a day— (a) if the person works on the day because the person has been coerced, harassed, threatened or intimidated by or on behalf of the occupier of the shop or on behalf of the bank, or (b) merely because the person is rostered, or required by the terms of an industrial instrument, to work on that day. Part 2 Restricted shop trading days 4 Shops to be closed on restricted trading days (1) All shops must be kept closed at the following times— (a) at all times on Good Friday, (b) at all times on Easter Sunday, (c) at all times on Anzac Day, (d) at all times on Christmas Day, (e) at all times on Boxing Day. (2) This section is subject to any exemption of a shop from the requirements of this Act under Part 3. (3) (Repealed) 5 Offence of trading on restricted trading day (1) An occupier of a shop must keep the shop closed on a restricted trading day in accordance with section 4. Maximum penalty—100 penalty units. (2) It is a defence to a prosecution for an offence under this section if a shop is kept open at a time that is 30 minutes or less after the commencement of a restricted trading day for the purposes of serving a customer— (a) who was in the shop before the commencement of that day, and (b) to whom goods had been sold or offered for sale in the shop before that commencement. (3) A person commits an offence against this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. Maximum penalty—100 penalty units for each person who did not freely elect to work on the restricted trading day. (4) In subsection (3), circumstances of aggravation means circumstances in which the shop was staffed by any person who did not freely elect to work on the restricted trading day concerned. (5) If on the trial of a person charged with an offence against subsection (3) the trier of fact is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (1), the trier of fact may acquit the person of the offence charged and find the person guilty of an offence against subsection (1), and the person is liable to punishment accordingly. 6 Advertising of trading on restricted trading day A person must not publish, or cause to be published, (by any means) an express or implied statement that, at any time at which a shop is required to be kept closed under this Act, the shop will be open for business. Maximum penalty—50 penalty units. 6A Relationship to Liquor Act 2007 (1) For the avoidance of doubt, nothing in the Liquor Act 2007, or in a packaged liquor licence under that Act, operates to exempt any licensed premises from a requirement under this Act to be kept closed. (2) In this section— licensed premises means premises to which a packaged liquor licence under the Liquor Act 2007 relates. Part 3 Exemptions for shop trading Division 1 General exemptions 7 Businesses of certain kinds exempt from trading restrictions (1) A shop is exempted from a requirement under this Act to be kept closed if its predominant business is a business of a kind specified in Schedule 1. (2) An exemption under subsection (1) is subject to the condition that, on a restricted trading day, the exempted shop is staffed only by persons who have freely elected to work on that day. (3) This section has effect despite any other Act or law. (4) (Repealed) 8 Small shops exemption (1) A shop is exempted from a requirement under this Act to be kept closed at a particular time if it complies with the requirements of this section. (2) The occupier or occupiers of the shop must be— (a) natural persons not exceeding 2 in number (whether or not carrying on the business of the shop in partnership) or 1 corporation, and (b) the owner or owners of the business of the shop and entitled to the profits of that business. (3) The number of persons engaged in the shop as employees or otherwise in the conduct of the business of the shop on any day (either at the same time or at different times) is not to exceed 4. (4) The number of persons permitted to be engaged in a small shop as referred to in subsection (3) does not include— (a) the occupier or occupiers or, if the occupier is a corporation, not more than 2 natural persons who are shareholders of the corporation, or (b) any person so engaged in an emergency during the absence from the shop for part of a day of a person who is so engaged in the shop on that day, or (c) any person so engaged outside the normal working hours of any person so engaged on a full-time basis. (5) An occupier of the shop must not be acting as the employee of or acting directly or indirectly as the agent of another person in the conduct of the business of the shop. (6) A shop does not comply with the requirements of this section if a direct or indirect interest in the business of the shop is held by— (a) a corporation that is engaged in a business of another shop or a hairdresser, or (b) a director of a corporation that is engaged in a business of another shop or a hairdresser, or (c) any other person who is engaged, as an employee or otherwise, in a business of another shop or a hairdresser, or (d) any corporation (whether or not engaged in a business) that for the purposes of section 50 of the Corporations Act 2001 of the Commonwealth is to be taken to be related to a corporation referred to in paragraph (a) or (b). (7) A reference in any other Act, award or instrument to a small shop as defined in this Act is to be read as a reference to a shop that meets the requirements of this section. (8) In this section— shareholder, in relation to a corporation, means a person having a relevant interest in a share in that corporation for the purposes of Part 6C.1 of the Corporations Act 2001 of the Commonwealth. 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. 8B (Repealed) 9 Certain licensed premises exempt This Act does not apply to premises in respect of which a hotel licence or small bar licence is in force, by reason only of the sale or exposing or offering for sale, in or on those premises, of liquor as defined by the Liquor Act 2007 or of meals or refreshments. Division 2 Exemptions by Secretary 10 Secretary may exempt shops from trading restrictions (1) The Secretary may by order, on application by the occupier of a shop, exempt the shop from a requirement under this Act to be kept closed. (2) The Secretary must not grant an exemption for a shop unless the Secretary is satisfied that it is in the exceptional circumstances of the case in the public interest to do so, having regard to the following matters— (a) the nature of the shop and the kinds of goods sold by the shop, (b) the need for the shop to be kept open on the day or days concerned, (c) the likely effect of the proposed exemption on the local economy, tourism and small businesses and other businesses in the area, (d) the likely effect of the proposed exemption on employees of, or persons working in, the shop. (3) An application for an exemption under this Division may not be made in respect of a shop that is not in existence when the application is made. (4) An exemption may— (a) apply in respect of one or more specified restricted trading days or all restricted trading days, or (b) apply in respect of specified times on a restricted trading day. (5) An exemption has effect for the period, not exceeding 3 years, specified by the Secretary in the order. (6) The period of the exemption may not be extended by an amendment to the order. (7) An exemption may be subject to conditions. 11 Applications for exemptions (1) An application for an exemption by the Secretary is to be— (a) made in the manner and the form approved by the Secretary, and (b) made not later than 28 days before the first day for which the exemption is sought, and (c) accompanied by the application fee, if any, prescribed by the regulations. (2) An application may be made in respect of more than one shop. (3) An applicant must, if required to do so, provide the Secretary with such additional information and documents in relation to an application as the Secretary may request. (4) Before determining an application, the Secretary must— (a) cause the application to be publicly exhibited for a period of at least 14 days, and (b) seek public comment on the application during the public exhibition period, and (c) have regard to any public comment received during that period. 11A Publication of orders and reasons for decisions (1) The Secretary must publish on the Departmental website an order granting an exemption and the reasons for any decision made by the Secretary to grant or not to grant an exemption. (2) An order and reasons must be published as soon as practicable after the relevant decision is made. 11B Deemed refusal of application If the Secretary has not determined an application for an exemption before the end of the period of 40 days after the application was made to the Secretary (or such longer period as the Secretary determines with the consent in writing of the applicant), the Secretary is taken, for the purposes of section 12, to have made a decision to refuse to grant the exemption. 11C Application of Division to applications for amendment or revocation of exemption orders (1) An occupier of a shop that is subject to an exemption under this Division may apply for the amendment or revocation of the exemption order. (2) This Division applies to any such application in the same way as it applies to an application for an exemption. 12 Administrative reviews by Civil and Administrative Tribunal (1) Any person who has applied for an exemption and is aggrieved by any of the following decisions may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision— (a) a determination of the Secretary to refuse to grant or to amend or revoke an exemption, (b) a determination of the Secretary as to the conditions subject to which, or the period for which, an exemption is granted. (2) Any other person who considers himself or herself to have a sufficient interest in an application for an exemption under this Division may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any such decision. (3) The Civil and Administrative Tribunal is not required to conduct an administrative review of a decision on the application of a person referred to in subsection (2) if it is not satisfied that the person has a sufficient interest in the application for exemption. (4) A representative of an industrial organisation of which persons employed or engaged in shops are entitled or eligible to become members may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions— (a) a determination of the Secretary to grant or to amend an exemption, (b) a determination of the Secretary as to the conditions subject to which, or the period for which, an exemption is granted. (5) In this section— industrial organisation means— (a) an industrial organisation of employees within the meaning of the Industrial Relations Act 1996, or (b) an association of employees registered as an organisation under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth. 13 Staffing on restricted trading days (1) Any exemption granted by the Secretary under this Part is subject to the condition that, on a restricted trading day, the exempted shop is staffed only by persons who have freely elected to work on that day. (2) (Repealed) (3) This section has effect despite any other law. 14 Offence—failure to comply with exemption condition An occupier of a shop must not fail to comply with a condition of an exemption imposed under this Division. Maximum penalty—50 penalty units. Part 3A Bank trading days 14A Definitions (1) In this Part— bank means an authorised deposit-taking institution (within the meaning of the Banking Act 1959 of the Commonwealth) that is authorised under that Act to use in its name— (a) the word "bank", or (b) any other word or expression (whether or not in English) that is of like import to the word "bank". financial institution means a body (other than a bank) that is a body regulated by the Australian Prudential Regulation Authority pursuant to section 3 (2) (a)–(e) of the Australian Prudential Regulation Authority Act 1998 of the Commonwealth. (2) The regulations can exclude an authorised deposit-taking institution from the definition of bank for the purposes of this Part. 14B Bank close days (1) The following days are bank close days for the purposes of this Part— (a) public holidays (within the meaning of the Public Holidays Act 2010), (b) Good Friday, Easter Sunday, Anzac Day, Christmas Day and Boxing Day (whether or not they are public holidays in a particular year), (c) Saturdays and Sundays, (d) the first Monday in August (Bank Holiday). (2) A day that is a public holiday only in a part of the State is a bank close day only for banks in that part of the State. (3) Each bank close day is declared to be a bank holiday or bank half-holiday (as appropriate) for the purposes of the Bills of Exchange Act 1909 of the Commonwealth. 14C Banks not to be open for retail banking business on bank close days (1) A bank must not be open for retail banking business on a bank close day. Maximum penalty—100 penalty units. (2) The retail banking business of a bank is banking business (within the meaning of the Banking Act 1959 of the Commonwealth) that is conducted with customers in person at the bank or a branch of the bank. (2A) A person commits an offence against this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. Maximum penalty—100 penalty units for each person who did not freely elect to work on the bank close day. (2B) In subsection (2A), circumstances of aggravation means circumstances in which the bank was staffed by any person who did not freely elect to work on the bank close day concerned. (2C) If on the trial of a person charged with an offence against subsection (2A) the trier of fact is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (1), the trier of fact may acquit the person of the offence charged and find the person guilty of an offence against subsection (1), and the person is liable to punishment accordingly. (3) This section does not prevent a bank (or one or more of its branches) from opening in accordance with an approval granted under this Part. (4) A bank must not fail to comply with a condition of an approval granted under this Part. Maximum penalty—50 penalty units. 14CA Banks may be open on certain bank close days if staff freely elect to work Despite section 14C, a bank may be open for retail banking business on Bank Holiday or a public holiday (other than a public holiday referred to in section 14E (1)), if the bank is staffed only by persons who have freely elected to work on that day. 14D Extension of Bank Holiday to other financial institutions (1) A financial institution must not be open for retail business on Bank Holiday. Maximum penalty—100 penalty units. (2) The retail business of a financial institution is business of the financial institution that is conducted with customers in person at the financial institution or a branch of the financial institution. (3) This section does not prevent a financial institution (or one or more of its branches) from opening on Bank Holiday if— (a) the financial institution (or the branch) is staffed only by persons who have freely elected to work on that day, or (b) an industrial instrument provides for employees employed in the retail business of the financial institution to receive a substituted day off in lieu of Bank Holiday for working on Bank Holiday, or (c) the financial institution has no more than 5 employees. (4), (5) (Repealed) 14E Restrictions on granting approval for banks to open (1) Approval cannot be granted under this Part for a bank to open on Good Friday, on Easter Sunday, on Anzac Day or on Christmas Day. (2) An approval for a bank to open on a Saturday or Sunday does not constitute approval for the bank to open on a day that is a bank close day for a reason other than being a Saturday or Sunday. 14F Staffing on bank close days (1) Any approval granted by the Secretary under this Part is subject to the condition that, on a bank close day, the bank authorised to open in accordance with the approval is staffed only by persons who have freely elected to work on that day. (2) (Repealed) (3) This section has effect despite any other law. (4) The condition imposed by this section cannot be varied by the Secretary under this Part. 14G Application for approval to open bank on bank close day (1) A bank may apply to the Secretary for approval to open the bank, or one or more branches of the bank, on a bank close day. (2) An application is to be in writing in a form determined by the Secretary and be accompanied by any fee prescribed by the regulations. (3) The Secretary may require the applicant to provide such further information as the Secretary considers relevant to the determination of the application. The Secretary may refuse to grant the approval if the applicant fails to provide the further information required. (4) The Secretary may consult with the banking industry, and prepare guidelines, about the type of information that may be required in connection with an application for approval under this Part. 14H Matters to be considered in determining application for approval (1) In determining an application for an approval, the Secretary is to consider whether granting the approval would be in the interests of the public, taking into account the likely effect of granting the approval on particular sections of the public, including— (a) customers of the bank concerned in any particular area (whether or not an area the subject of the application), and (b) persons employed or engaged (whether or not by the bank) to perform services for the bank. (2) This section does not limit the matters that the Secretary may consider in determining an application for approval. 14I Determination of application (1) If the Secretary grants an approval, the Secretary must issue the applicant with a written approval that sets out any conditions to which the approval is subject. An approval may be granted unconditionally or subject to conditions. (2) If the Secretary refuses to grant an approval, the Secretary must give notice of the refusal in writing to the applicant setting out the reasons for the refusal. (3) If the Secretary has not determined an application for approval within 40 days after the application was made to the Secretary (or such longer period as the Secretary determines with the consent in writing of the applicant), the Secretary is taken to have made a decision to refuse to grant the approval. 14J Duration of approval Except during any period of suspension, an approval under this Part remains in force for the period specified in the approval (unless sooner cancelled) or, if no period is so specified, until the approval is cancelled. 14K Variation, suspension or cancellation of approval (1) The Secretary may vary the conditions of, or suspend or cancel, an approval under this Part as provided by this section. (2) The Secretary may suspend or cancel an approval only if— (a) the bank that holds the approval has contravened a condition of the approval, or (b) the Secretary considers that it is no longer in the interests of the public for the approval to remain in force, or (c) the bank has requested the suspension or cancellation. (3) The Secretary may vary the conditions of, or suspend or cancel, an approval only if the Secretary has— (a) given the bank concerned written reasons for the Secretary's intention to vary the conditions of, or suspend or cancel, the approval and an opportunity to make submissions, and (b) considered any submissions duly made by the bank within a period required by the Secretary. (4) Subsection (3) does not apply to a variation of a condition of, or the suspension or cancellation of, an approval at the request of the bank that holds the approval. (5) A variation of the conditions of, or a suspension or cancellation of, an approval— (a) must be made by notice in writing served on the bank that holds the approval, and (b) takes effect when the notice is served or at a later time specified in the notice. (6) Before determining to take action under this section in relation to an approval, the Secretary may (but need not) determine that the approval will be subject to a period of review. The Secretary is to give written notice of such a determination to the bank concerned and is to include in the notice written reasons for the determination. 14L Administrative reviews of decisions by Civil and Administrative Tribunal (1) A bank that is the applicant for or the holder of an approval under this Part may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions under this Part— (a) a decision of the Secretary to refuse to grant the approval, (b) a decision of the Secretary to impose conditions on the approval, (c) a decision of the Secretary to vary the conditions of the approval, (d) a decision of the Secretary to suspend or cancel the approval. (2) A representative of an industrial organisation of which persons employed or engaged to perform services for a bank are entitled or eligible to belong may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions under this Part— (a) a decision of the Secretary to grant an approval under this Part to the bank (whether with or without conditions), (b) a decision of the Secretary to vary the conditions of an approval granted to the bank under this Part. (3) In this section— industrial organisation means— (a) an industrial organisation of employees within the meaning of the Industrial Relations Act 1996, or (b) an association of employees registered as an organisation under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth. Part 4 Enforcement 15 Powers of inspectors (1) This Act is taken to be industrial relations legislation for the purposes of Part 4 of Chapter 7 of the Industrial Relations Act 1996. Note— The effect of this provision is to confer on inspectors powers under that Part to inspect premises and require the production of records. It is an offence to hinder or obstruct, or fail to comply with a requirement by, an inspector under that Part. (2) An inspector may, for the purpose of investigating a possible contravention of this Act or the regulations, require an occupier of a shop to produce for the inspector's examination, at such time and place as the inspector may specify, specified records indicating hours worked by employees in the shop, business receipts and other information concerning the operation of the shop at particular times. (2A) An inspector may, for the purpose of investigating a possible contravention of this Act or the regulations, require a bank or a financial institution within the meaning of Part 3A to produce for the inspector's examination, at such time and place as the inspector may specify, specified records indicating hours worked by employees in the bank or financial institution, business receipts and other information concerning the operation of the bank or financial institution at particular times. (3) A requirement duly made under this section by an inspector is taken to be a requirement made under Part 4 of Chapter 7 of the Industrial Relations Act 1996. 16 Nature of proceedings for offences (1) Proceedings for an offence under this Act or the regulations may be dealt with— (a) summarily before a Local Court, or (b) summarily before the Supreme Court in its summary jurisdiction. (2) If proceedings are brought in a Local Court, the maximum monetary penalty that the Local Court may impose for the offence is 100 penalty units, despite any higher maximum monetary penalty provided in respect of the offence. 17 Authority to prosecute (1) Proceedings for an offence against this Act or the regulations may be instituted only— (a) by the Minister or by a person with the written consent of the Minister, or (b) by an inspector, or (c) by a person, or a person of a class, prescribed by the regulations. (2) In any such proceedings, a consent to institute the proceedings, purporting to have been signed by a person authorised to give a consent under this section is evidence of that consent without proof of the signature or authority of the person. (3) Any such proceedings instituted by a member of staff of a Division of the Government Service may be prosecuted on his or her behalf by any member of staff of that Division. 18 Evidence that shop is not closed In any proceedings for an offence against this Act, a shop is taken not to have been closed at a time at which it is proved that— (a) goods were sold or offered or exposed for sale at the shop, or (b) goods were available for inspection by persons within the shop, or (c) goods that had previously been sold or ordered were delivered or were available for delivery at the shop to the person who bought or ordered them or to some other person on behalf of that person, or (d) orders for goods were received by a person in attendance at the shop, or (e) goods were received, or unpacked or otherwise prepared, at the shop for sale at the shop, or (f) stocktaking was carried out at the shop in respect of goods offered or exposed for sale at the shop. 19 Evidence as to exemptions (1) In any proceedings for an offence against this Act, a certificate signed by the Secretary and that certifies that, on a specified date or during a specified period— (a) a shop was or was not exempted from a specified requirement under this Act, or (b) that a specified exemption under this Act was or was not subject to a specified condition, is admissible and is evidence of the matters so certified. (2) In any proceedings for an offence against this Act, a certificate signed by the Secretary and that certifies that, on a specified date or during a specified period— (a) a bank or a financial institution under Part 3A was or was not the holder of an approval under Part 3A, or (b) a specified approval under Part 3A was or was not subject to a specified condition, is admissible and is evidence of the matters so certified. Part 5 Miscellaneous 20 Delegation The Secretary may delegate the exercise of any function of the Secretary under this Act (other than this power of delegation) to— (a) any member of staff of the Department of Customer Service, or (b) any person, or any class of persons, authorised for the purposes of this section by the regulations. 21 Service of documents (1) A document that is authorised or required by this Act or the regulations to be served on any person may be served by— (a) in the case of a natural person— (i) delivering it to the person personally, or (ii) sending it by post to the address specified by the person for the giving or service of documents or, if no such address is specified, the residential or business address of the person last known to the person giving or serving the document, or (iii) sending it to an email address specified by the person for the service of documents of that kind, or (iv) any other method authorised by the regulations for the service of documents of that kind, or (b) in the case of a body corporate— (i) leaving it with a person apparently of or above the age of 16 years at, or by sending it by post to, the head office, a registered office or a principal office of the body corporate or to an address specified by the body corporate for the giving or service of documents, or (ii) sending it to an email address specified by the body corporate for the service of documents of that kind, or (iii) any other method authorised by the regulations for the service of documents of that kind. (2) Nothing in this section affects the operation of any provision of a law or of the