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[Extract from Queensland Government Industrial Gazette,
Dated 9 May 2008, Vol. 188, No. 2, pages 16-19]
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Trading (Allowable Hours) Act 1990 - s. 21 - trading hours orders on non-exempt shops
National Retail Association Limited, Union of Employers AND Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) and Another (TH/2007/8)
TRADING HOURS - NON-EXEMPT SHOPS TRADING BY RETAIL - STATE
DEPUTY PRESIDENT SWANCOMMISSIONER FISHER
COMMISSIONER THOMPSON / 28 April 2008
Application to amend Trading Hours Order - Seven day trading - Redlynch Central - Inspections - Evidence - Legislative requirements satisfactorily addressed - No evidence by small traders opposing application - Application granted as from 26 May 2008.
DECISION
The National Retail Association Limited, Union of Employers (NRA) has made an application seeking to amend the Order titled Trading Hours - Non-Exempt Shops Trading by Retail - State (the Trading Hours Order), to, in effect, permit seven day trading at a shopping centre in a suburb of Cairns, known as Redlynch Central.
The Commission, as currently constituted, heard an application in the same terms in 2005 (Matter No. B/2005/559). On that occasion, the Commission decided to reject the application (180 QGIG 218-224). The main reasons for that decision were:
(i) the conditions placed by the Planning and Environment Court on Redlynch Central such that it was unable to tenant all of the centre until the population in the area had reached a certain level;
(ii) the significant disruption and disadvantage that would be suffered by small traders in the area - as shown by the evidence given by the five witnesses called by the Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) (QRTSA); and
(iii) the evidence of the tourist industry need was not compelling.
In its decision the Commission stated that the application was "not completely without merit" but it was "premature".
The present application sought to address the concerns identified by the Commission in its 2005 decision and to that end, the NRA called evidence from the following witnesses:
Kevin Tanti, owner of the Brumby's franchise located in the Redlynch Central Shopping Centre;
Russell John Drayton, owner of the Crystal Cascades Holiday Park;
Narelle Leanne Ross, tenant of the Redlynch Central Shopping Centre and operator of a newsagency business;
Douglas Frank Neilson, tenant of the Redlynch Central Shopping Centre and owner of Redlynch Central Video;
Christopher John Greenwood, Area Manager Far North Queensland for Woolworths Limited;
William Samuel Cummings, Principal of Cummings Economics; and
Charles Anthony Marino, Sole Director and Secretary of C20 Pty Ltd. C20 Pty Ltd, Franklyn Holdings Pty Ltd and Jored Holdings are the owners and centre managers of Redlynch Central Shopping Centre.
In addition, inspections were undertaken by two Members of the Full Bench and the parties of the following sites:
Smithfield Shopping Centre;
Lake Placid Caravan Park;
Redlynch Village;
Crystal Cascades Caravan Park;
Redlynch Central Shopping Centre;
Raintrees Shopping Centre;
Stockland Plaza Shopping Centre; and
Mt Sheridan Shopping Centre.
[It should be noted that Thompson C. was unable to be present for the inspections or the hearing in Cairns but with the consent of the parties, two Members heard the case on the understanding Thompson C. would read the transcript].
The present application is supported by The Australian Workers' Union of Employees, Queensland (AWU) given the commitment by Woolworths Limited that work performed by employees on Sundays and public holidays would be voluntary. The Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees advised the Industrial Registrar by correspondence dated 14 January 2008 that it currently had no members affected by the application and supported the position taken by the AWU. The QRTSA opposed the application on the grounds of the potential adverse impact it would have on the Redlynch independent retail community.
Relevant Legislative Considerations
Section 26 of the Trading (Allowable Hours) Act 1990 (the Act) sets out the matters the Commission must have regard to when making an Order under s. 21 - Trading hours orders on non-exempt shops. In considering the relevant matters reference will be made to pertinent witness evidence.
s. 26(a) "the locality, or part thereof, in which the non-exempt shop or class of non-exempt shop is situated".
In our 2005 decision we said:
"Redlynch Central is situated to the west of the main highway (the Bruce Highway) which, for the purpose of the region in question, runs from Mt Sheridan shopping centre to the south of Cairns, through to Ellis Beach to the north of Cairns.
Redlynch Central is situated primarily in a residential location. Mr Bill Cummings' evidence has highlighted the demographics of the Redlynch catchment area.
We note that situated within 1 kilometre of the Redlynch Centre is Redlynch Village. We also note that within a six kilometre radius of Redlynch Central area three Woolworths stores enjoying seven day trade.".
Evidence was again given by Mr Bill Cummings about the demographics of the Redlynch catchment area. This evidence contained in Attachment B to his witness statement highlighted the following:
· The Redlynch Central shopping centre catchment area has a higher proportion of young children (0-14 years) and of family age groups of 35-54 year olds.
· The Redlynch Central shopping centre catchment area has a very high proportion of households of couples with children compared with Cairns overall.
· The Redlynch Central shopping centre catchment area has a high proportion employed, both full-time and part-time, a low unemployment rate and a low percentage not in the labour force.
· 70% of couples in the catchment area with children are both employed and two-thirds of single parents with children are employed.
s. 26(b) "the needs of the tourist industry or other industry in such locality or part".
s. 26(c) "the needs of an expanding tourist industry".
In the previous application much was made by the competing parties as to whether Redlynch Central served the tourist industry. On this occasion, the view that Redlynch Central did not serve this industry was absent.
Evidence was given in support of the application by Russell Drayton, owner of the Crystal Cascades Holiday Park which is located just over three kilometres from Redlynch Central. This shopping centre is the closest one to the Holiday Park. Mr Drayton gave evidence of domestic and European visitation to the Holiday Park and the average length of stay - 6 days during the dry season and 21/2 days during the wet season. His evidence also addressed the importance for guests of the Holiday Park to have access to convenient supermarket shopping on all days of the week.
Mr Cummings' evidence showed that there had been a 2.7% growth in visitor numbers over the five years to 2006. Within the Redlynch Central Shopping catchment area visitor numbers comprised 9% of the total population in 2006. This compares with 62.2% in the Cairns City area and 4.5% in the Brisbane Statistical Division.
s. 26(d) "the needs of an expanding population".
Based on Census data, the population in the Redlynch catchment area grew by 4.5% over the five years from 2001 to 2006.
s. 26(e) "the public interest, consumers' interest, and business interest (whether small, medium or large)".
The customer survey conducted by Compass Research and attached as Attachment C to Mr Cummings' statement showed overwhelming consumer support for seven day trading at Redlynch Central.
A number of small business operators gave evidence in support of the application. These operators have businesses located at Redlynch Central and all believed that the opening of the anchor tenant, Woolworths Limited, on Sundays, would substantially increase their business.
Unlike the previous case, no small traders gave evidence opposing the application.
s. 26(g) "the likely impact of the order on employment".
Chris Greenwood, Area Manager, Far North Queensland Woolworths Limited gave evidence on this point. He said that if their Redlynch store was permitted to trade on Sundays and public holidays approximately 150 additional hours of employment per Sunday and public holiday would be generated. All additional hours offered on Sundays and public holidays would be voluntary.
s. 26(h) "the view of any local government in whose area the order is likely to have an impact".
The Cairns City Council provided correspondence in the following terms:
"I refer to your letter dated the 29 February 2008 and wish to advise that unfortunately due to the upcoming local government elections there will not be the opportunity for Council to formally consider this matter until late April 2008.
I can however advise that Council has not opposed such requests in the past for other shopping centres in the local government area.".
s. 26(i) "such other matters as the industrial commission considers relevant".
One of the main factors weighing against the grant of the previous application was the direction of the Planning and Environment Court referred to earlier. This factor was considered relevant under s. 26(i) of the Act. The restriction on fully tenanting the centre has been lifted. The evidence from Charles Marino is that Redlynch Central now only has two vacant tenancies with one of those expected to be leased in the very near future.
Conclusions
Having considered all of the evidence and submissions the Commission considers the application should be granted. The various matters required to be considered by the Commission under s. 26 of the Act have been satisfactorily addressed by the applicant. Moreover, the concerns raised by the Commission in its 2005 decision have been overcome. The centre is now able to be fully tenanted and small traders have not given evidence opposing the application. In addition, the population and tourist statistics and the customer survey suggest the popularity of seven day trading for Redlynch Central.
The date of operation for the Order is 26 May 2008.
The applicant is directed to prepare a draft Order and to lodge it in the Registry within 14 days of the date of release of this decision.
The Commission orders accordingly.
D.A. SWAN, Deputy President.G.K. FISHER, Commissioner.
J.M. THOMPSON, Commissioner.
Hearing Details:
2008 15 February and
14 and 15 April
Released: 28 April 2008 / Appearances:
Mr G. Black and with him Ms B. Seeto for the National Retail Association Limited, Union of Employers.
Ms A. Pham for the Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers).
Ms S. Schinnerl for The Australian Workers' Union of Employees, Queensland.
Government Printer, Queensland
ÓThe State of Queensland 2008.