If you think retail trading hours is a subject that’s more or less settled in this country, think again. In Queensland, ‘small shops’, ‘large shops’ and ‘independent shops’ have different trading hours. More to the point, these classifications were established in 1987 when the late Sir Joe Bjelke-Petersen was Premier!
Angus Nardi looks at the present situation and sees some light at the end of the tunnel.
Queensland’s shop trading hours regulations could be described as being in a time warp which is completely stuck in the 1980s.
Getting a foothold on widespread reform in Queensland, principally around restrictions for large retailers, known in legal speak as ‘non-exempt’ shops, has been virtually impossible to date. The prevailing legislation, the Trading (Allowable Hours) Act 1990, has not been the subject of substantial change via the visible hand of the Government in recent times.
Governments have instead referred parties to make individual applications to the Queensland Industrial Relations Commission (QIRC), based around a legislative classification comprising three types of shop (small, large, independent) established in 1987 – a time when the late Sir Joe Bjelke-Petersen was Premier and Kylie Minogue’s debut single ‘Locomotion’ was No. 1 in the charts.
This situation is unique to Queensland, whereby determination on allowable hours for large retailers is made by an independent tribunal, such as the QIRC. This approach can also be relatively costly, timely and uncertain. In other jurisdictions, it’s done by legislation or Ministerial determination.
Generally, applications for extended trading hours are made to the QIRC by large retailers such as Coles, Woolworths and Big W who face current restrictions. Generally, such applications are opposed by groups such as the Shop, Distributive and Allied Employees’ Association (SDA), Master Grocers Australia (representing independent supermarkets such as IGAs) or local business chambers.
We have been involved in several applications to the QIRC, which are led by the National Retail Association as an employer association.
A case of recent success was the full bench of the QIRC’s decision to permit large shops (i.e. anchor tenants in shopping centres) to open and trade from 7am to 9pm, Monday to Saturday, in the South East Queensland area, effective from 1 December 2016. The original application for this case was lodged in October 2014, with hearings held in late 2015.
This is a landmark QIRC decision, and positive for freedom of trade, consumers and harmonisation.
Over the years, other cases have been fought and either won or lost in the QIRC to permit Sunday trading across various regional and rural areas.
The framework described exists despite various headline recommendations for the Government to directly intervene and legislate on widespread reform.
For example, the Productivity Commission last year, in its inquiry into workplace relations, pointed out that Queensland (along with South Australia and Western Australia) should remove “anti-competitive remnant shopping-hour restrictions”.
The Commission also stated the obvious that we now live in a ‘seven-day consumer economy’, adding that “today, people commonly expect to be able to shop, eat at cafes, and purchase other consumer services on a seven-day basis”.
Locally, a Queensland Competition Authority (QCA) report in 2013 not only recommended the removal of restrictions, but recommended its consideration as a “fast-track reform candidate”.
In a multi-criterion summary, the QCA even labelled the then current restrictions as being “redundant”, from a suite of labels ranging from “unnecessarily burdensome”, “complex” and of “questionable benefit”.
The QCA also said the “need for reform” was well understood, but also that the potential net benefits are “high” and amount to around $200 million per annum.
The removal of trading restrictions had the highest specified quantitative benefit amidst other reforms such as mining development restrictions, and restrictions on housing development and tourism.
It is hence encouraging news that the Queensland Government recently announced a review of the Trading (Allowable Hours) Act 1990, which is currently the subject of a public consultation process via a 77-page Issues Paper.
This is the foothold we’ve been waiting for.
The review is being chaired by John Mickel, a former Labor member of the Queensland Parliament, serving in both the Beattie and Bligh governments, including time as Speaker and in various Ministerial portfolios (including industrial relations).
A positive aspect is the review’s broad terms of reference announced by the Minister for Industrial Relations, Grace Grace, whilst also acknowledging that the review “has the potential to unlock $200 million in annual economic benefit to the state”.
The Issues Paper itself raises 12 questions based around different reform propositions, and also notes that the Government will look through the lens of various ‘issues for consideration’.
These issues are typically wide, and include impacts on ‘the needs of the public’, ‘workers and their families’, ‘employment’, ‘the economy’, ‘visitors’, ‘providing certainty and consistency in trading arrangements’ and the ‘market share of small and medium-sized enterprises’.
It seems there’s something for everyone to argue about!
The terms of reference enable various reform options to be considered, including the role of legislation, the QIRC, criteria for determining applications, and the current three classes of shops, being: (1) ‘exempt’ (i.e. small), (2) ‘non-exempt’ (i.e. large) and (3) ‘independent’.
In simple terms, small shops such as bakeries and newsagents (and ‘video cassette shops’!) can trade whenever they like, and so too can independent shops (which have employee number restrictions) except for some minor public holiday restrictions (e.g. Good Friday, Anzac Day, Christmas Day).
Large shops, such as large supermarkets and department stores, have the most restrictive allowable trading hours regime including across weekday, weekend and public holiday trading.
However, the Issues Paper correctly points out that, while the initial idea of enabling small shops to trade freely seemed logical, insofar as they’re small businesses and provide goods and services “which should be accessible to the public at all times”; times have changed.
As we know, shops in this category are now owned and operated by large, national, multi-store chains. This challenges any logic of continuing to protect so-called small shops from competition from so-called larger shops.
So what are we seeking out of the review?
The first thing we’re doing is working in partnership with the National Retail Association, as we are a longstanding member of their Trading Hours Committee. We are keen to ensure a comprehensive and coordinated response from shopping centres and retailers, but also a reform proposal that outlines the material priorities.
We haven’t finalised our submission at this stage, however we have already provided a preliminary submission and held discussions with the Government. At the broad scale, however, a preferred model is akin to other jurisdictions, whereby all shops can trade 24/7, with the only limitation being on large retailers for key public holidays.
Short of widespread reform, a clear critical reform is widespread Sunday trading across all of Queensland.
While there’s been success at the QIRC over a number of years for towns such as Townsville (2007), Gympie (2009), Toowoomba (2010), Mackay (2010), Emerald (2011), Gladstone (2011), Biloela (2012) and Dalby (2015), a number of applications have failed such as Mt Isa and Warwick.
At the time of writing, four of our members still have centres that do not open on Sundays in regional Queensland, due to the inability of their anchor tenants to open.
We’d also like to see a wide range of opening hours across the standard week, along with the ability to engage in extended hours in critical commercial areas such as the Brisbane CBD and tourism zones, and also seasonal times such as the pre-Christmas period.
On this latter issue, the QIRC recently made a determination granting ‘midnight’ trading for 19/20/21/22 December 2016 for large retailers in various locations and specified shopping centres in South East Queensland.
This includes the Brisbane CBD, Westfield Garden City, Indooroopilly, Pacific Fair, Robina Town Centre and Sunshine Plaza.
While the QIRC granted this application, a similar process in other jurisdictions is subject to Ministerial approval, without the need to go to a tribunal. This too could be an alternative model for Queensland.
An important issue for shopping centre owners and managers will be the ‘quid pro quo’ issues of any potential reform.
This includes the issue of shopping centre owners not being able to ‘force’ retailers to trade during extended hours, such as Sundays or public holidays.
In any case, retail tenancy legislation has a mechanism for a ‘ballot’ process, whereby a shopping centre’s core trading hours can be changed, subject to a ballot comprising at least 50% of lessees, and 75% of voters supporting the change.
A further reality is that trading hours change can occur through separate forums.
As an example, the Government can separately amend and declare additional public holidays, which is a matter currently under separate consideration in the Queensland Parliament.
The Government recently tabled the Industrial Relations Bill 2016, which is yet to be passed but has been the subject of a Parliamentary inquiry. This is reportedly an initiative ‘alongside’ the review of trading hours, which seeks to amend the Holidays Act 1983 to create an additional public holiday by declaring Easter Sunday a public holiday from 2017.
The declaration of this additional public holiday is principally for penalty rates purposes, to which the Chamber of Commerce and Industry Queensland have claimed that “4,998 retail, accommodation and hospitality businesses are now expecting to close their doors on Easter Sunday 2017”.
This creation of an additional public holiday is similar, in principle, to a recent decision by the Northern Territory Government to create two new public holidays from 7pm to midnight on the ‘eves of Christmas and New Year. This itself reflects a similar decision in South Australia in 2012.
Even where Easter Sunday is declared as a trading day, an increase in labour costs for retailers may obviously affect retailer participation, and may also affect shopping centre operating costs (e.g. cleaning, security).
The Queensland review clearly provides a foothold for change, and the ability for contemporary issues to be considered, particularly in our ‘seven-day consumer economy’. While the recent QIRC decision on SEQ trading hours gives cause for positive reflection on the current framework, the Government should look at it as a case for further change.
It is strongly hoped that the Government supports consumers, and narrows the competition gap between certain retailers, including through widespread and legislated Sunday trading. I can’t see wholesale reform being on the cards, but we at least have to step out of the 1980s timewarp.
