[Extract from Queensland Government Industrial Gazette, dated 30 September, 2005, Vol. 180, No.7, pages 484-513]
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 (B/2004/1489)
TRADING HOURS ORDER – NON-EXEMPT SHOPS TRADING BY RETAIL – STATE
(Regional Queensland (Southern & Eastern Area))
VICE PRESIDENT LINNANE 15 September 2005 COMMISSIONER BLADES COMMISSIONER ASBURY
Application to extend trading hours in regional Queensland to allow trade on Sundays – Inspections undertaken interstate and intrastate – Extensive witness evidence – QRTSA and SDA given leave to appear and be heard – Application based on the fact that over 85% of Australians can now shop in non-exempt shops on Sundays – Legislative provisions considered – Public interest, consumer’s interest and business interest considered – Views of local authorities considered – Effects on employment considered – Application dismissed – Trading (Allowable Hours) Act 1990 s. 21, s. 26.
DECISION
[1] A Full Bench of this Commission may decide trading hours for non-exempt shops which, generally speaking, are the larger retail shops in the State: see s. 21 of the Trading (Allowable Hours) Act 1990 (Act). On the making of a decision, the Order of the Commission, entitled Trading Hours Order – Non-exempt Shops Trading by Retail – State may, from time to time, be amended to give effect to any decision of the Commission and is published in the Queensland Government Industrial Gazette.
[2] The current Order, published in (2004) 175 QGIG 247 provides that non-exempt shops shall be kept closed on Sundays and public holidays (as defined) except where specifically prescribed by the Order. The Order then goes on to make provision for Sunday trading (excluding Easter Sunday) as follows:
South-East Queensland Area (excluding the Inner City of Brisbane and the Gold Coast and Sunshine Coast Areas) – from 9.00 a.m. to 6.00 p.m.
Inner City of Brisbane (excluding the Area of City Heart of Inner City of Brisbane and Area of New Farm of Inner City of Brisbane) – 9.00 a.m. to 6.00 p.m.
Area of City Heart of Inner City of Brisbane – 9.00 a.m. to 6.00 p.m.
Area of City Heart of Inner City of Brisbane occupied by Coles Express – 9.00 a.m. to 6.00 p.m.
Area of New Farm of Inner City of Brisbane – 9.00 a.m. to 6.00 p.m.
Gold Coast and Sunshine Coast Areas – 9.00 a.m. to 6.00 p.m.
Cairns Tourist Area – 9.00 a.m. to 6.00 p.m.
Townsville Central Business District – 9.00 a.m. to 6.00 p.m.
Douglas Shire Tourist Area – 9.00 a.m. to 6.00 p.m.
Whitsunday Shire Tourist Area – 9.00 a.m. to 6.00 p.m.
Great Barrier Reef Wonderland Tourist Complex – 8.30 a.m. to 6.00 p.m.
Hervey Bay Area – 9.00 a.m. to 6.00 p.m.
[3] The areas identified in the Order are defined in Schedule 1 and the South-East Queensland Area is also defined as follows:
“(1) South-East Queensland Area – The area comprising the following:
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(a) the Sunshine Coast Area; (b) the area east of the Bruce Highway between the existing Sunshine Coast Area and the Brisbane Statistical Division; (c) the area occupied by non-exempt shops fronting onto the western side of the Bruce Highway between the existing Sunshine Coast Area and the Brisbane Statistical Division; (d) the Brisbane Statistical Division; (e) the local government area for the Gold Coast City Council that is not included in the Brisbane Statistical Division; (f) the islands in the coastal waters of the State east of the areas mentioned in (a) to (e) that are not included in the Brisbane Statistical Division.
Brisbane Statistical Division – The Brisbane Statistical Division defined in the 2001 edition of the Australian Standard Geographical Classification (Cat. No. 1216.0) published by the Australian Bureau of Statistics:
Provided that for the purposes of trading on Saturdays this definition excludes the islands as defined in clause (5) of Schedule 1.”.
[4] The convoluted nature of the Order is the result of numerous piecemeal applications over the years which have gradually secured extended trading hours throughout Queensland. This is another such application.
[5] The National Retail Association Limited, Union of Employers (NRA), has applied to the Commission to amend the trading hours fixed by the Order by deleting the current definition of South-East Queensland and inserting the following in lieu thereof :
“South-East Queensland Area – The area comprising the following:
(a) The area within the following boundaries:
Commencing at Point Danger and bounded then by the southern boundary of the State westerly to 151 degrees of east longitude; then by that degree of longitude bearing true north to 24 degrees 30 minutes of south latitude; then by that parallel of latitude bearing true east to the sea-coast; and then by the sea- coast southerly to the point of commencement; and
(b) All islands in the coastal waters of the State east of the area mentioned in (a) herein.
Provided that for the purposes of trading on Saturdays this definition excludes the islands as defined in clause (5) of Schedule 1.”.
[6] If the NRA were to be successful in their application the new definition of South-East Queensland would allow Sunday trading in localities such as Texas, Inglewood, Millmerran, Dalby, Jandowae, Mundubbera, Eidsvold, Mulgildie and all places east, and Many Peaks, Lowmead, Bundaberg and all places south.
[7] The amended definition would include the following centres: Bundaberg, Maryborough, Gayndah, Monto, Murgon, Gympie, Wondai, Kingaroy, Nanango, Yarraman, Blackbutt, Kilcoy, Woodford, Caboolture, Nambour, Esk, Toogoolawah, Redcliffe, Toowoomba, Gatton, Ipswich, Warwick, and Stanthorpe. A number of other areas would also be impacted by any amended definition including Gin Gin, Pitsworth, Dalby, Allora etc.
[8] The following organisations identified an interest in the application and were given leave to appear and be heard:
Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees (SDA) on 26 October 2004; Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) (QRTSA) on 1 November 2004; Hardware Association of Queensland, Union of Employers (HAQ) on 2 November 2004; and National Meat Association of Australia (Queensland Division) Industrial Organisation of Employers (NMAA) on 17 November, 2004.
[9] The Australian Workers’ Union of Employees, Queensland (AWU) also sought leave to appear and be heard and although the application was outside of time there was no objection to the AWU being heard on the application.
[10] At a preliminary hearing in the Commission on 3 February 2005, the Full Bench was advised that the NRA had reached an agreement with the SDA the result of which was an amendment to the claim being sought in this application. In that regard the Full Bench was advised that the NRA would only be pressing for the insertion of a new definition for Regional Queensland (Southern and Eastern Area) as follows:
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“Regional Queensland (Southern and Eastern Area) – The area within the following boundaries:
Commencing at Point Danger and bounded then by the southern border of the State westerly to 151 degrees of east longitude; then by that degree of latitude bearing true north to 24 degrees 30 minutes of south latitude; then by that parallel of latitude bearing true east to the sea-coast; and then by the sea-coast southerly to the point of commencement; but excluding the areas defined in clauses (1) to (7) inclusive of Schedule 1.”.
[11] The Full Bench was also advised that the NRA, with the consent of the SDA, was now seeking the following new clause to be inserted in the Order:
“Regional Queensland (Southern and Eastern Area):
Opening Time Closing Time
Monday to Friday 8.00a.m. 9.00p.m. Saturday (including Easter Saturday) 8.00a.m. 5.00p.m. Sunday (excluding Easter Sunday) 10.00a.m. 5.00p.m.”.
[12] The effect of this agreed position between the NRA and the SDA is that the same localities are the subject of the application but that the permitted hours on Sundays in this proposed Regional Queensland (Southern and Eastern Area) are to be from 10.00 a.m. to 5.00 p.m. instead of what appears to be the generally accepted norm of 9.00 a.m. to 6.00 p.m. The Full Bench was subsequently advised that the AWU supported the agreed position of the NRA and SDA.
[13] The NRA application points to the fact that for 85% of Australians, seven day trading is now a fact of life. It is said that all of Tasmania, Victoria, Northern Territory and Australian Capital Territory enjoy Sunday trading, that the great majority of New South Wales, South-East Queensland (as currently defined) and tourist areas in Queensland, Adelaide and many parts of regional South Australia and Perth Central Business District, Western Australia tourist areas and some local government areas have Sunday trading. The NRA seeks the introduction of seven day trading to regional areas of Queensland for the following reasons:
(a) to prevent escape expenditure from regional towns and cities and the consequential transfer of job opportunities from regional centres to the capital city and adjoining areas in the south-east corner; (b) to enable regional Queensland to compete on a level playing field for investment capital; (c) to ensure for a more efficient utilisation of capital in the retail sector; (d) to ensure for long term economic well being of the retail sector; (e) to more effectively cater for the changing needs and shopping patterns of consumers; (f) to stimulate economic growth and improve profitability through increased sales and increased employment; and (g) to grow the tourism industry.
[14] The NRA also points out that many retailers currently trade over seven days. Hardware retailers, large and small, have been trading over seven days throughout Queensland since 2000, and many furniture, electrical and electronic goods stores, auto accessories stores, and homemaker centres currently trade on Sundays in regional towns and cities.
Inspections
[15] At the request of the NRA the Commission undertook interstate inspections. Other parties opposed such inspections but they were undertaken on the basis that the practice of the Commission is to generally conduct inspections as requested by an applicant in proceedings, unless there are compelling reasons why this should not occur. None of the parties opposing the inspections placed compelling reasons before the Commission as to why they should not occur. During the inspections the Commission also inspected and viewed a number of establishments requested by the QRTSA. Inspections were conducted in the following interstate locations:
Coffs Harbour, Armidale, Tamworth, Gunnedah, Singleton and Maitland in New South Wales; Hobart, Bridgewater, Ulverstone, Devonport, and Launceston in Tasmania; Bendigo, Ballarat and Warrnambool in Victoria; and Mount Gambier, Millicent, Robe, Kingston South-East, Victor Harbour, Strathalbyn, Mt Barker, Murray Bridge, Karoonda, Loxton, Sedan, Angaston and Nuriootpa in South Australia.
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[16] Inspections were also conducted in regional Queensland at Beerwah, Nambour, Cooroy, Gympie, Kingaroy, Gin Gin, Maryborough, Bundaberg, Jimboomba, Beaudesert, Boonah, Stanthorpe, Warwick, Allora, Clifton, Toowoomba, Dalby, Chinchilla, Gatton and Laidley.
[17] There was much information provided to the Commission during these inspections but it is emphasised that such information was not evidence and cannot be regarded as evidence in these proceedings. It is the “view” which constitutes the evidence, not what the Commission was told on those inspections. Furthermore, there is much about this application that does not need to be given in evidence. Members of this Commission are also consumers and “shoppers” and a degree of knowledge must be imputed to them as ordinary human beings. In other words, Commission Members are entitled to take judicial notice of that which is a well known fact to them (e.g. that there is a bend in the road – Kent v Scattini (1961) WAR 74).
Evidence
[18] Hearings were conducted in Kingaroy, Childers, Toowoomba and Brisbane. Childers being the chosen venue because of the unavailability of neighbouring Court accommodation in both Bundaberg and Maryborough. The whole of the evidence has been considered. The evidence relevant to the matters in issue between the parties, and in particular the matters the Commission is required to consider by virtue of the Trading (Allowable Hours) Act 1990 is summarised below.
(i) NRA witnesses – Nambour
[19] Les Hadlow: Mr Hadlow is an executive member and former Chairman of the Nambour District Chamber of Commerce. His evidence was that the retail infrastructure of Nambour has been neglected relative to the adjacent coastal tourist strip. Nambour is the geographic centre for the Sunshine Coast and has the potential to become a major transit, retail and commercial centre for the hinterland areas. There is a proposed duplication of the electrified rail line between Brisbane and Gympie and further north which is expected to require the construction of a new railway station at Nambour. The rail is used by visitors as a principal point of interchange. Mr Hadlow also outlined plans for the redevelopment of the site at which Moreton Mill was previously located. The inability of the retail sector to trade on Sundays means that the town is less attractive to visitors.
[20] Mr Hadlow said that larger retailers had indicated to him that they were not prepared to invest in Nambour without seven day trading. Mr Hadlow also said that there was a significant amount of escape expenditure from Nambour to areas such as Kawana and Maroochydore. Mr Hadlow said that the Chamber of Commerce had resolved at a meeting on 14 February 2005, to support the NRA application with the motion being carried by 37 votes to 1. At a further meeting addressed by representatives of both the NRA and the QRTSA, the vote had been 15 for Sunday trading and 8 against.
[21] Under cross-examination, Mr Hadlow said that he could not recall how many retailers had been involved in the first vote but that the majority were not retailers. Mr Hadlow said that many of the retailers who were currently not trading on Sunday, could do so under the current Order regulating trading hours. Mr Hadlow also said that the Maroochy Shire Council had voted against supporting the NRA application with that vote being carried by 5 to 4. A letter to this effect was tendered by Mr Price and marked as Exhibit 26.
[22] Rod Hurst: Mr Hurst is the proprietor of Nextra Newsagency located in the Nambour Plaza Shopping Centre. According to Mr Hurst’s evidence if the major retailers in Nambour were allowed to open and Nambour Plaza Shopping Centre was open, he would open. His business is located just outside the seven day trading boundary and his business suffers because the major retailers in the centre are not open.
[23] David Eaves: Mr Eaves is the Business Manager of Nambour Plaza Chemmart Pharmacy located in the Nambour Plaza Shopping Centre. Mr Eaves believes that it is unfair that the Nambour Plaza Shopping Centre is unable to trade on Sundays simply because the Centre is located 1.5 kilometres on the wrong side of the Bruce Highway. Centres on the other side of the Bruce Highway are able to open and Mr Eaves is losing business to them. The store currently trades 8.00 a.m. to 8.00 p.m. Monday to Sunday but his Sunday sales are very modest, showing 4% of the weekly sales because the majors in the Nambour Plaza Shopping Centre are not able to open on Sundays. If the centre was allowed to be open on Sunday then increased customer traffic would drive additional sales for his business and he would employ more staff.
[24] Wayne Smith: Mr Smith is the proprietor of Café Bella at the Nambour Plaza Shopping Centre. During the winter of 2004, he opened the Café on Sundays, predominantly for breakfast and his evidence was that it traded strongly with the takings being equivalent to a normal trading day even though the Café was open for reduced hours on those Sundays. Mr Smith believes that it is unfair that the major retailers are unable to trade on Sundays with the result being that the Centre is closed. A considerable amount of business is lost to other Sunshine Coast shopping centres.
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(ii) NRA Witnesses – Bundaberg
[25] Mark Wilson: Mr Wilson is the Centre Manager of the Sugarland Shoppingtown in Bundaberg and was authorised by the owner Redrate Pty Ltd to make the statement in support of Sunday trading. Sugarland is a sub-regional shopping centre, anchored by Woolworths, Action and Big W with 74 speciality stores. According to Mr Wilson’s evidence there is no reason why the significant investment in Sugarland should not be able to be utilised over all seven days of the week. It is inequitable that major retailers are precluded from trading on Sundays when other competing retailers are able to trade on Sundays whether they are located in close proximity to the centre or in other retail precincts.
[26] Under cross-examination, Mr Wilson said that competing major retailers referred to in his evidence were Harvey Norman, Bunnings, Mitre 10 and a number of takeaway food outlets. Mr Wilson said that while Harvey Norman identified itself as several independent bodies for the purposes of trading hours legislation, the perception was that it was one entity in the same way as other major retailers who were non-exempt shops for the purpose of the legislation. Mr Wilson also said that he accepted that current trading hours legislation allowed some of the competitors of retailers in his centre to trade on Sundays.
[27] Mr Wilson also said that there had not been an attempt to operate the Centre on Sundays with only the independent retailers opening and that none of these retailers had made such a request. Further, the costs of operating the Centre in this way would be prohibitive for smaller retailers. Further, the Woolworths and Action supermarkets in the Centre traded from 8.30 a.m. to 9.00 p.m. Monday to Friday and to 5.00 p.m. on Saturday, when they could trade from 8.00 a.m. on each of these days under the current trading hours Order. Big W traded from 8.30 p.m. to 5.00 p.m. on each day.
[28] Mr Wilson agreed that the benefits for Redrate Pty Ltd in the Centre trading on 7 days of the week was the potential for higher rents based on turnover of retailers, and to strengthen the centre to attract new retailers. Mr Wilson said that trading on 27 and 28 December in 2004 had been optional, and it was not the intention to force retailers to trade on Sundays if the NRA application was granted. Mr Wilson also agreed that Redrate Pty Ltd had invested considerably in the Centre over a number of years and that all investment to date had been on the basis of trading on 6 days of the week.
[29] Lynelle Pronger: Ms Pronger is the proprietor of Brumby’s Bakery in the Sugarland Shopping Centre, Bundaberg and she is convinced that there is substantial demand for seven day trading in the Centre. Whilst she currently trades on Sundays the only other store in the Centre that is open on Sundays is the newsagency. Ms Pronger is convinced that sales would improve with Sunday trading.
[30] Under cross-examination, Ms Pronger said that she did not have lights or air-conditioning in her shop when she traded on Sundays, but that she knew this would be the case when she commenced to operate the business. Ms Pronger also said that she had taken on the business on the basis that the Centre was open for 6 days of the week, but had planned that her business would trade on 7 days from the outset. Ms Pronger said that in her experience the majority of sporting activities in Bundaberg were undertaken on Saturdays rather than Sundays, but that a lot of Sunday trade came from nearby motorcross and BMX events.
[31] Ms Pronger said that she was happy with her current Sunday trade regardless of whether the rest of the Centre was open. Ms Pronger also said that she could be “shooting herself in the foot” by supporting a situation where the rest of the retailers in the Centre opened, because some of those retailers sold bread and other products for less than she did. However, Ms Pronger maintained that her view about Sunday trading was based on perceptions about what consumers wanted. Further, Ms Pronger said that she aimed to have a better product than was available in supermarkets, and in any event was competing with supermarkets on 6 days of the week in the current trading hours environment.
[32] Ms Pronger said that currently on Sundays she closed her store at 1.30 p.m. because after that time the newsagency was closed and there was little, if any, traffic of customers through the Centre. Ms Pronger said that she hoped that if the rest of the retailers in the Centre traded on Sundays, her trade would also improve. Regardless of the outcome of the NRA application, Ms Pronger said that she would continue to trade on Sundays.
[33] Shane Roberts: Mr Roberts is the proprietor of three Subway franchises. Those franchises are located in Maryborough’s Station Square Shopping Centre, the Bundaberg CBD and one is located adjacent to Bundaberg’s Sugarland Shopping Centre. According to Mr Robert’s evidence there is a perception that because the Sugarland Shopping Centre is closed that his store is closed with the result that Sunday trade in his store is relatively slow. The Bundaberg CBD store trades strongly on Sundays. If the major retailers traded on Sundays, he has no doubt that he would benefit from the greater traffic flows.
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[34] Under cross-examination Mr Roberts said that he was not currently trading for the maximum hours allowable under the trading hours Order, and that only the Coles Supermarket in his Centre did so. Mr Roberts agreed that when he purchased his business he knew that the Centre did not open on Sundays, but had hoped that it eventually would. Mr Roberts also agreed that he could have discussions with Centre management about trading on Sundays if he wanted to but had not done so because of additional logistical problems such as the need to hire security because the rest of the Centre was not open.
(iii) NRA Witnesses – Maryborough
[35] Denis Fitzpatrick: Mr Fitzpatrick is the managing partner of Terry White Chemists, Maryborough which is located in the Station Square Shopping Centre. The Chemist currently trades on Sundays in the Station Square store between 8.30 a.m. and 6.00 p.m., however the trade is quite poor and would be substantially improved if the entire Centre were open. Mr Fitzpatrick says that he has noticed a downturn in business on Sundays of approximately 20% since Sunday trading was extended in Hervey Bay. If the Centre was open, Mr Fitzpatrick believes that he would double his trade on Sundays. His decision to invest in the business however was based upon six day trading, and notwithstanding this, the investment opportunity was reasonable. If Sunday trading was granted, the investment potential of Mr Fitzpatrick’s business would be improved.
[36] Under cross examination, Mr Fitzpatrick said that the Bi-Lo store in the Centre traded until 9.00 p.m. Monday to Friday, but the Big W closed at 5.00 p.m. Mr Fitzpatrick said that the Big W had traded until 7.00 p.m. for approximately 18 months, but had then started to close at 5.00 p.m. While some independent retailers in the Centre traded on Sunday, these were generally retailers with direct access from the outside of the Centre to their premises or with their own air-conditioning systems. Mr Fitzpatrick did not know whether other independent retailers had asked Centre Management to open the Centre on Sundays to allow them to trade. Mr Fitzpatrick agreed that the only reliable example he had of the effect on his business of the Centre being open on Sundays, were the two Sundays prior to Christmas in December 2004, when the Centre had been open. Mr Fitzpatrick also agreed that December was always the prime trading month of the year, and was not really comparable to other parts of the year.
[37] Mr Fitzpatrick disagreed with Ms Ambrose’s evidence (Ms Ambrose is the owner of Klein’s Maryborough) and stated that he expected that if most of the retailers in the Centre opened on Sundays, then his business would benefit from increased overall trade.
[38] Peter Sloan: Mr Sloan is the proprietor of a Baker’s Delight store which is located in Station Square Shopping Centre Maryborough. Mr Sloan supports the NRA application and believes that major retailers in Maryborough should be allowed to trade on Sundays. His store currently trades on Sundays but, according to his evidence, sales are relatively low. They would be significantly improved if the entire Centre were open. Mr Sloan also operates a Baker’s Delight store at Hervey Bay and he has experienced a significant increase in trade since Woolworths commenced to trade on Sundays in January 2004. Mr Sloan also operates another Baker’s Delight store at Stockland Forster Shopping Centre in New South Wales which trades very well on Sundays. Sunday trading in Maryborough would improve the performance of his business in the Station Square Shopping Centre and would increase turnover.
[39] Shaun Green: Mr Green is a director of A & M Investment Pty Ltd which owns and operates Station Square Shopping Centre in Maryborough. The Centre opened on 3 April 2000 and employs over 600 people. Mr Green’s evidence is that Station Square Shopping Centre has stemmed the flow of escape expenditure from Maryborough to surrounding regions. Given the trend of seven day trading across Australia, Mr Green is of the view that it is inequitable that Station Square Shopping Centre is precluded from servicing its customers over the same period. Maryborough must compete with Hervey Bay and there is no reason why Station Square should not trade if other non-tourist areas such as Ipswich can trade on Sundays.
[40] Under cross-examination, Mr Green agreed that six day trading had not prevented Centro from investing in Gympie and that Gympie was a prime re-development site. Mr Green said that Station Square had particularly stopped escape expenditure with respect to discretionary spending and had in fact generated quite a bit of traffic from Hervey Bay to Maryborough.
(iv) NRA Witnesses – Beaudesert
[41] Linda Wilkinson: Ms Wilkinson is the Senior Property Manager with CBRE which manages the Beaudesert Fair Shopping Centre. The Centre opened in 1987 and was refurbished in 1992. Beaudesert is approximately 55 kilometres south of Brisbane and 14 kilometres and approximately 10 minutes driving time from the Jimboomba Shopping Centre which is located on the Mt Lindsay Highway at Jimboomba. Ms Wilkinson’s view is that it is inequitable that Jimboomba Shopping Centre can trade on Sundays but Beaudesert Fair cannot trade. Beaudesert is situated in the corridor between two of Australia’s fastest growing cities i.e. Brisbane and the Gold Coast. CBRE believes that the Centre should be allowed to compete on a level playing field.
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(v) NRA Witnesses – Toowoomba
[42] Dale Murrie: Mr Murrie is the proprietor of Pet’s Paradise in Grand Central Shopping Centre, Toowoomba. According to Mr Murrie’s evidence there are five large pet stores in Toowoomba that are able to trade on Sundays and his store is the only one which is not able to trade because he is located in a shopping Centre. This unfairly disadvantages his business. Mr Murrie says that many people come into the carpark on Sundays expecting the Centre to be open. Mr Murrie’s evidence is that many of his customers travel to Brisbane on Sundays to shop. As his rent would remain the same if he was trading over all seven days it would be more efficient to be able to trade over those days and spread his fixed costs of operation over that period. When he purchased the business Mr Murrie acknowledged that he knew it wasn’t open on a Sunday. Similarly when he decided to start up another business (Wendy’ Ice Creamery) in the Centre he made the decision based on a six day trading basis.
[43] Ian Anderson: Mr Anderson is the President of the Toowoomba Chamber of Commerce and he supported the application. The Toowoomba Chamber of Commerce is the oldest functioning Chamber of Commerce in Queensland, established in 1899 with a current membership of 386 businesses within the greater Toowoomba area. The retail industry is Toowoomba’s third largest industry, is Toowoomba’s largest employer and the total retail expenditure in 2001 was $695 million (per capita $7,600). Toowoomba is an established regional retail centre with a city population of 92,555 with surrounding shires providing accommodation for a further 18,000 who are employed and patronise Toowoomba retail stores. The South West region of Queensland provides a total shopping population of over 250,000. The Chamber supports the application for the following reasons:
inevitability, competitive disadvantage and escape expenditure; consumer expectations; competitive fairness locally; investment; and impact on Regional Shopping destination Status.
[44] Of 3.3 million persons who were estimated to visit Toowoomba each year, 2 million are day trippers, indicating significant weekend visitations with the expectation of a shopping option.
[45] Mr Anderson said that the application had the unanimous support of the Chamber’s members. Mr Anderson was also asked to comment on the witness statement of Mr Campbell, of the Toowoomba CBD Taskforce. Mr Anderson said that the Toowoomba CBD Taskforce had “lapsed” due to a removal of its funding from the Toowoomba City Council. In relation to the witness statement of Dr Baker, Mr Anderson said that historically the CBD had been in decline for twenty years. This was because of what the Chamber believed was a lack of commitment by business owners to reinvest. As shopping centres opened, CBD trade had “whittled away”. In more recent times the advent of destination shops in the CBD such as Crazy Clark’s, A-Mart and Rivers, plus the upgrade of Garden Town and Grand Central shopping centres had saved the CBD according to Mr Anderson.
[46] Under cross-examination, Mr Anderson said that there had been very little feedback in relation to items published in the Chamber’s newsletter about its support for Sunday trading. The Chamber had not surveyed consumers in relation to their views. In relation to the expectations of day trippers about shopping options, Mr Anderson said this figure was based on an assumption that tourists would want to shop as they did when visiting Brisbane, the Gold Coast and other tourist areas. As an example, Mr Anderson said that during the Australian Gospel Music Festival some 25,000 people visited Toowoomba and the Saturday on which the Festival was held, was one of the largest traffic days of the year for Grand Central Shopping Centre.
[47] Under cross-examination Mr Anderson said that the Chamber of Commerce had previously opposed Sunday trading. The decision to support the NRA application in this case had been made at Board level after giving the community a chance to have feedback. The Chamber had not polled its members in relation to the current NRA application but had conducted a poll in 1998 in relation to a previous application for extended trading hours. Mr Anderson also agreed that Mr Dean Baker, the General Manager of Grand Central Shopping Centre in Toowoomba, is a Director of the Chamber of Commerce and had participated in the Board decision to support the NRA application. Mr Anderson also said that the Board decision had been made as a basis for people to provide feedback, and that as President he had made it clear that if the decision needed to be reversed, it would be.
[48] In response to a question about who the major investors in Toowoomba would be, Mr Anderson said that there was about to be a significant investment in the Grand Central Shopping Centre, and that a significant investment had recently been made in the Clifford Gardens Shopping Centre. Mr Anderson agreed that these investments had been made notwithstanding that those centres were only permitted to trade on six days rather than seven per week. Mr Anderson also referred to a huge amount of money being spent on establishments at the southern end
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of Ruthven Street, and maintained that this was because the retailers in that area were permitted to trade on seven days of the week.
[49] In response to questions from the Commission, Mr Anderson agreed that the Myer store in Toowoomba was not trading the maximum number of hours it was currently permitted to trade. However, Mr Anderson said that due to cold night time temperatures in Toowoomba, people did not want to shop at nights. Mr Anderson said that he did not have consumer research in relation to this point.
[50] Mr Anderson was also critical of the Toowoomba City Council stating that the Council had not adopted a view on Sunday trading. Mr Anderson said in his view, a major failing on the part of the Toowoomba City Council was its unwillingness to take a position on any controversial issue.
[51] Laurence Brindle: Mr Brindle is the General Manager, Real Estate, Queensland Investment Corporation (QIC). QIC owns and develops major shopping centres in Queensland (including Grand Central Shopping Centre, Toowoomba), New South Wales, ACT and Victoria with total funds under management in excess of $38 billion. QIC is the manager of mainly long term superannuation investment funds on behalf of over 400,000 Queensland superannuants and was well placed to provide an investor’s perspective on how Sunday trading in the South-East Queensland regional retail market will affect the viability and potentially the capital value of shopping centres such as Grand Central Shopping Centre in Toowoomba. Mr Brindle said that QIC considers the outcome of this case is critical to the continued viability of participants in the retail industry and its future development. It considers Sunday trading is fundamental to ensuring the Queensland retail industry remains efficient and equitable for all participants and is not disadvantaged in comparison to other States. According to Mr Brindle there is likely to be increased employment in development and construction projects as well as within the retail businesses. Mr Brindle says that there has been a leakage of retail spending from Toowoomba to regional shopping centres in Brisbane. Sunday trading would ease the congestion in the Centre’s car parks on Thursday night and Saturdays. Located adjacent to Grand Central is the Garden Town Shopping Centre in CBD which currently trades on Sundays. Mr Brindle says that the fact that one centre can trade on Sundays and one can’t causes confusion amongst customers. Mr Brindle stated that QIC made representations to the State Government to have the 2001 Commission decision on Sunday trading in South-East Queensland changed to enable its centre at the Hyperdome at Logan to be able to trade on Sundays. QIC was successful in having Sunday trading extended to Logan via legislation. Further, Mr Brindle stated that QIC would make the same representations to Government should this Full Bench not grant the application for Toowoomba.
[52] Mr Brindle also said that internet shopping was not having much of an effect on retail and that it had only penetrated into sectors such as travel and banking. Generally shopping was seen by consumers as a leisure pursuit and Mr Brindle did not see that internet shopping would make any further inroads into the retail sector in the future. QIC’s preferred approach in relation to the location of shopping centres was that they were located in town centres. Mr Brindle said that historic “high streets” were becoming an important part of the shopping experience. Further, cafes, restaurants and retailers providing entertainment and leisure were doing well in strip shopping areas and providing competition to retailers located in shopping centres.
[53] In response to questions from the Commission Mr Brindle said that QIC had initially invested in Toowoomba in the mid 1990s when Grand Central had been redeveloped. Mr Brindle also agreed that there was a significant cycle of investment currently occurring, including in Toowoomba and surrounding areas, but maintained that Queensland was disadvantaged from investment point of view, because of the lack of Sunday trading. Mr Brindle said that from QIC’s viewpoint Queensland is a slightly more risky place to invest in shopping centres, compared to other places where Sunday trading exists. This was because the shopping centres which could not trade on Sundays were slightly more susceptible to competition. As an investor, QIC demanded a higher rate of return from those centres. Mr Brindle agreed that this had not prevented QIC from investing in Grand Central in Toowoomba and that a higher rate of return had been achieved from that investment.
[54] Mr Brindle could not provide any evidence about any increase in QIC staff at Loganholme as a result of Sunday trading commencing in that centre in 2002. Mr Brindle said that if the current application was granted, QIC would employ three additional persons at Grand Central. Further, Mr Brindle was not aware of the attitude of the Toowoomba City Council to the NRA application and had not conducted any surveys of consumers.
[55] Under cross-examination, Mr Brindle said that the benefit that would flow to QIC if the NRA application was granted, would be increased rents from retailers, which in turn increased investment returns and the value of the Grand Central Shopping Centre. Mr Brindle said that a recent survey of retailers in Grand Central had indicated that 80% of them supported Sunday trading but did not know whether retailers had been told that it was not compulsory. Mr Brindle agreed that the QIC’s 2003/2004 annual report showed an outstanding return for the QIC Growth Fund on 15.9% and a 14.8% return on the Shopping Centre Fund. Mr Brindle also agreed that the return on the Shopping Centre Fund was in excess of the financial standard wholesale direct property tax, which was a benchmark that QIC clients asked QIC to perform against. Mr Brindle expected that QIC would continue
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to exceed this benchmark, but that its performance and the level of the Benchmark could fluctuate based on any slowing down of the market.
[56] Christopher Shaw: Mr Shaw is the Retail Manager for Gandel Retail Management which manages Clifford Gardens Shopping Centre in Toowoomba. The additional trading hours sought in this application would allow Clifford Gardens to compete with shopping centres in adjacent areas which are already permitted to trade Sundays. It would also enable the Centre to compete with many retailers in the CBD who are able to trade on Sundays. In recent years, shopping has become more than a needs-driven experience. Shopping now provides important social interaction and family activity. Extended trading hours in other States has been beneficial for all stakeholders – retailers, customers and property-owners, while enhancing employment opportunities. These benefits are greatly magnified in rural and regional communities. Gandel Retail Management is reluctant to invest further in Clifford Gardens while it suffers from the trading limitations imposed by six day trading. The company did not solicit support for extended trading from the Toowoomba City Council.
[57] Patrick Woods: Mr Woods is the National Sales Manager for City Beach which has 37 stores across Australia and employs 2,263 store based employees. The Toowoomba store will trade on Sundays if the application is granted. Sunday trading has generated incremental sales for all City Beach stores, has contributed to increased employment and is expected to generate an additional 48 hours of employment each Sunday in Toowoomba. The store employs a considerable number of University students who take advantage of the opportunity to work on Saturday and Sunday.
[58] Stephen Part: Mr Part is the Queensland Regional Manager of Myer Grace Bros. If the application is granted, Myer Toowoomba store will trade on Sundays. Myer Toowoomba is the only major department store located outside Brisbane or a tourist area, and hence is the only Myer Store in Queensland which is precluded from trading on Sundays. Mr Part’s evidence is that there is now a general expectation on the part of customers that retailers will be open seven days a week. This is evidenced by the numbers of people visiting shopping centres and Myer stores where such stores are open on Sundays. All stores in the greater Brisbane area have been trading on Sundays since August 2002 and they all trade well. Based on experience, with the introduction of Sunday trading in the Brisbane metropolitan stores, it is expected that on average 387 hours per week (or 77 people plus an expected 25 people employed by others in the Myer store) of additional employment will be generated in the Toowoomba store if the NRA application is granted. The Myer store is expected to compete against other retailers who currently are allowed to trade on Sundays.
(vi) NRA Witnesses – Brisbane
[59] Ann Sims: Ms Sims is the Executive Officer of the Gunnedah District Development Board Inc. Sunday trading was introduced to Gunnedah (population 12,000) by the NSW Government in 2000 on a trial basis. The larger stores now consistently trade on Sundays. No evaluation has been conducted on the impact of the introduction of Sunday trading by large retailers in Gunnedah. There is now no expectation that the issue will be back on the agenda. Ms Sims spoke of the benefits of Sunday trading as being convenience, increased spending by visitors and increased tourism. Ms Sims said that some smaller independent general stores were affected by increased competition from the majors when Sunday trading was introduced as Sundays had been their most profitable day prior to its introduction. She said that lifestyle is a dominant consideration for some small business owner/operators in choosing to close on Sundays. She does not believe that the true effects of Sunday have yet been fully felt.
[60] Brett Williams: Mr Williams is the Centre Manager for Centro Lansell which manages shopping centres in Bendigo and Hamilton in Victoria. Mr Williams was working at the Horsham Plaza Centre when trading hours were deregulated in Victoria in December 1996. According to Mr Williams none of the concerns then expressed by independent retailers have subsequently been realised. Independent retailers have continued to trade successfully after deregulation. In the Bendigo Centre all retail tenants trade on Sundays. Sunday proves to be a very good trading day given that sales are generated in half the time of other trading days. For many retailers in Hamilton there has been little change. Many traders continue to close their shops by 1.00 p.m. on Saturdays and decline to open on Sundays. In the main however, the large retailers in Hamilton trade on Sundays. Mr Williams says that the deregulation of trading hours has not resulted in significant or noticeable closures of small businesses nor has deregulation resulted in smaller retailers working or trading excessive hours. Longer trading hours does not prevent independents from trading successfully in the niche markets they have developed. According to Mr Williams the success of independent supermarkets is related to their location, the relative convenience they offer the consumer, store design and layout, the range of product and pricing.
[61] Under cross-examination, Mr Williams said that he had never worked in retail in Queensland. Mr Williams also agreed that the proposed Centro development in Gympie comprising a Big W complex with 31 independent retailers, was a substantial development for Centro, although he was not aware of that particular development.
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[62] Rodger Sandford: Mr Sandford is the Regional Manager, Kmart Operations. Mr Sandford’s evidence related in particular to the Kmart stores in Bundaberg and Toowoomba. According to Mr Sandford many Kmart stores operate across Australia and many trade on Sundays. In regional Australia, Sunday trading arrangements as far as Kmart stores are concerned are as follows: all Victorian regional stores trade on Sundays; all New South Wales stores trade on Sundays; all Northern Territory stores trade on Sundays; all South Australian stores trade on Sundays; all Tasmanian stores trade on Sundays; and in Western Australia, Karratha/Headland/Albany trade on Sundays.
[63] Based on experience with the introduction of Sunday trading in Brisbane metropolitan stores, Mr Sandford expects that on average 8,500 hours of additional employment per year over the two stores will be generated if the application is successful. Mr Sandford admitted that Kmart stores across Queensland do not currently trade the full allowable hours but says that this is because of lack of demand for such extended hours. Mr Sandford does not believe that smaller traders are competitors for Kmart. When questioned about employment levels at Kmart stores following the introduction of Sunday trading in the South-East Queensland Area, Mr Sandford said that he had not been asked to provide such statistics. His evidence was however that he believed there was an increase in employment levels at Kmart stores based on experience.
[64] Under cross-examination, Mr Sandford said that the two Kmart stores in the area covered by the application were over twenty years old. At the time that Kmart had invested in those stores there had been no Sunday trading, but the original intent would have been that the stores trade on Sunday. Mr Sandford also agreed that consumers have a fixed amount of disposable income, and that additional sales generated by Kmart must be at the expense of its competitors. However, Mr Sandford did not believe that smaller independent stores competed with Kmart, but rather that Kmart’s competitors were Big W, Bunnings, Target, Best and Less, Mitre 10 and Warehouse.
[65] Mr Sandford also said that despite the introduction of Sunday trading in Brisbane, Kmart stores in Toowoomba and Bundaberg were still trading well. In Toowoomba, improved trading had been because of some relief from drought conditions. Further, Mr Sandford said that his statement that work by employees on Sundays would be voluntary, referred to existing employees and that new employees could be specifically employed on the basis of a requirement to work on Sundays.
[66] Scott Wallace: Mr Wallace is the Queensland Regional Retail Support Manager for Woolworths Limited. According to Mr Wallace, Sunday trading would relieve congestion at Woolworths’ registers on Saturdays by effecting some redistribution of demand from Saturdays to Sundays. Saturday is traditionally the busiest day of the week for food shopping and it is not uncommon for in-store and car park congestion to be experienced. Better efficiencies of energy usage would result from the extension of trade as refrigeration and air conditioning systems currently must continue to run when the store is closed. Woolworths Limited believes that Sunday trade is likely to improve the local economy as it will reduce the level of monetary leakage from the regional centres, increase employment opportunities and increase the level of discretionary expenditure. The predicament of the Woolworths Limited store at Beerwah is, according to Mr Wallace, particularly inequitable because of the leakage to Caboolture. The Beerwah store has been open for two years and is experiencing double digit growth yet people in Beerwah who want to shop on Sundays currently have to drive to Caloundra or to Caboolture. Mr Wallace’s evidence is that Sunday trading would result in a significant increase in additional hours of employment per year per store. This would include not only salespersons but also employees such as cleaners and trolley contractors. Thus there would be more disposable income in the community. The standard supermarket will require a minimum of approximately 146 hours to operate on a Sunday. When questioned about Woolworths Limited contribution to local communities, Mr Wallace advised the Full Bench that the company had donated $202,000 to assist local ventures and the Royal Children’s Hospital and had donated $500,000 to the Tsunami appeal.
[67] Gerard Winzenberg: Mr Winzenberg is the District Manager for Target Australia Pty Ltd in Queensland. This application is supported by Target Australia Pty Ltd which has nine stores in the area affected. Target Australia Pty Ltd currently operates many stores across Australia which trade on Sundays. Over the next five years Target Country expects to have opened new stores in up to 20 regional Queensland centres. Based on the introduction of Sunday trading in Brisbane, Mr Winzenberg expects an average of 7,350 hours of additional employment per annum, per Target store, and that 1,470 hours will be generated for Target Country stores. It is the evidence of Mr Winzenberg that Target Australia Pty Ltd stores in Queensland do not trade the current allowable hours for such stores.
[68] Max Cathcart: Mr Cathcart is the Chamber Manager of the Tamworth and District Chamber of Commerce and Industry. Sunday trading commenced in Tamworth in February 2000 on a trial basis and was limited to twelve stores. The results of a survey of retailers and consumers conducted in or about March 2002 indicated that there
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was unqualified support for Sunday trading in the area. According to Mr Cathcart, many small retailers remain closed on Sunday in Tamworth but they are supportive of the continuation of Sunday trading for those that wish to trade on that day. Larger retailers have experienced significant growth. Tamworth is now more vibrant on Sundays. The Country Music Festival brings tens of thousands of visitors to Tamworth and it is convenient for these visitors to be able to shop on Sundays. When questioned about the closure of the Myer store in Tamworth Mr Cathcart explained that the closure was as a result of the corporate policy of closing all regional stores in New South Wales and Victoria and returning to capital city trading. Mr Cathcart said that the reason for vacant shops in Tamworth was because of excessive rent.
[69] David Smith: Mr Smith is the Regional Manager for Queensland of Best & Less Pty Ltd which has seven stores in the affected area. According to Mr Smith, Sunday trading in Brisbane has been an important trading day and it comprises a significant portion of the week’s business. Mr Smith says that more families shop on Sundays and children’s clothing is more likely to be purchased on that day. Catalogues are distributed on weekends when the opportunity to read them is optimised. Mr Smith says that Best & Less is particularly disadvantaged in respect to its store located in the Garden Town Shopping Centre where all of the tenants except for Best & Less and Lincraft can trade on Sunday. There would be an additional 336 hours of employment each week generated across the seven stores if the application were granted.
[70] Bob Mundy: Mr Mundy is the Regional Manager for Coles which operates Coles and Bi-Lo stores. Coles supports the application. There are twelve stores which will trade on Sundays in the affected area should the application be granted. In August 2002, Sunday trading commenced in forty-two stores in and around Brisbane. By October 2002, Sunday sales comprised an average of 9.58% of the week’s sales in those stores and by the end of 2004 in the same stores, that percentage of Sunday sales had grown to 11.57%. Based on an average wage of $17 per hour Mr Mundy expected that $2,669 per Sunday would be generated by each store i.e. based on 157 hours of work at time and a-half.
[71] Debra Plunkett: Ms Plunkett is the Centre Manager for the Bendigo Marketplace Shopping Centre and is employed by Gandel Retail Management Pty Ltd in Bendigo. The Bendigo Marketplace Shopping Centre commenced trading on 31 October 1995. Trading hours in Victoria were deregulated in December 1996. Following deregulation there were objections which resulted in the Bendigo City Council preparing and distributing a paper identifying the arguments in favour of Sunday trading. Ultimately a Sunday trading poll was conducted on 14 March 1998 which resulted in 78% of the community voting to support the introduction of Sunday trading. The introduction of Sunday trading has, according to Ms Plunkett, been an unqualified success. By the end of 1999, Sunday traffic flows had increased to 17.5% from a previous level of 9% of weekly customer traffic flows. Employment has also increased. Before deregulation, Bendigo Marketplace Shopping Centre employed approximately 500 persons. The number now stands at 650. According to Ms Plunkett, there are not many corner stores located in Bendigo.
[72] Milton Cockburn: Mr Cockburn is the Executive Director of the Shopping Centre Council of Australia. The Shopping Centre Council represents the interests of shopping centre owners and managers. The Council believes it is inappropriate for shopping centres located in regional Queensland to be prevented from trading on Sundays when shopping centres in adjacent areas are permitted to trade. It is, according to Mr Cockburn, unfair and inequitable that the majority of people in regional Australia are able to shop and trade on Sundays but this opportunity is denied to people living in regional Queensland. In regional Victoria and regional Tasmania (as well as in the Northern Territory and the Australian Capital Territory) there are no restrictions on trading hours. In regional NSW, residents are able to shop on Sundays. In many parts of regional South Australia, local government areas have successfully applied to the South Australian Government to have trading hours restrictions removed. Similarly in around twenty local government areas of regional Western Australia (below the 26th parallel of south latitude) trading hours have been removed for the entire area or at least for the major cities or towns within the area. Above the 26th parallel of south latitude in Western Australia there is no regulation of trading hours. Balancing work and family commitments especially in dual income households is now a major challenge for families. Lost retail sales on Sunday will be lost to the region forever. Mr Cockburn says that there is no doubt that it is the preference of the majority of those who live in regional Queensland to have the freedom to shop on Sundays. He believes it to be unfair that any Australian is discriminated against in respect of when they can and when they can’t shop and, with the exception of Western Australia, it is only those in regional Queensland who are being discriminated against. While there are an infinite number of ways to spend money on a Sunday, Mr Cockburn says that it defies logic to prevent people from spending money in a shopping centre, a department store or a big supermarket on a Sunday.
[73] Norm Crothers: Mr Crothers is the Deputy Chief Executive Officer of the Australian Consumers’ Association (ACA) which supports the application for Sunday trading. The ACA is an independent body established in 1959 to advance the interests of consumers throughout Australia. Since 1960 the ACA has published CHOICE magazine. The ACA accepts no funding from Government, from industry or any other interests. According to Mr Crothers, the ACA believes that consumers are entitled to shop when they and the relevant retailers find it convenient. Government regulations should not restrict trading hours unless there are very good reasons to do
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so. Neither should trading restrictions favour one group of traders/consumers over another. According to Mr Crothers, deregulated trading hours promotes competition. While some retailers need to adjust to the lifting of trading hours restrictions, overall a better business environment results and consumers have access to a wider range of goods and lower prices. According to Mr Crothers, numerous surveys have been conducted across Australia in recent years and these show that a clear majority of consumers would like to have deregulated trading hours. The independent retailers were seriously affected when supermarkets commenced operations about forty-five years ago. Allowing the introduction of Sunday trading is just another aspect of retailing in 2005.
[74] Barry Waters: Mr Waters is the Regional Manager for Big W Discount Stores (Big W). Mr Waters controls thirty-one Big W Discount stores and supports the application. Mr Waters’ evidence is that Big W has a commitment to everyday low prices and has been influenced in its investment decisions affecting regional Queensland by representations made by Local Government and community organisations in regional towns such as Maryborough, Gympie, Kingaroy and Dalby. Big W is a very significant contributor to revitalising local shopping precincts and makes a substantial contribution to the limitation of escape expenditure. Big W believes it is not appropriate to preclude non-tourist regional stores from trading on Sundays when the metropolitan non- tourist stores can trade on such days. All Big W regional stores across Australia currently trade on Sundays except the Queensland regional stores and the store in Bunbury, Western Australia. According to Mr Waters there is already significant retail activity in Queensland’s regional towns and cities on Sundays that offer products that are sold in the Big W stores e.g. Super A Mart, SuperCheap Autos, and Bunnings. Up to 75% to 80% of Big W product range can be purchased at other retailers on Sunday in the area affected by this application. Mr Waters says that historical data suggests a trend towards Sunday trading with a higher incidence of family shopping on Sundays. If the application is granted, there will be increased employment opportunities. In the areas within the application, an additional 1,367 hours of additional employment is anticipated. Mr Waters admitted that the Big W stores in Queensland do not currently trade the full allowable hours. Mr Waters also agreed that if Sunday trading was granted, there would be a shift of sales from the Monday to Saturday trade although he also expected new sales to be generated on Sundays.
[75] Bronwyn Anderson: Ms Anderson is the Regional Manger of the Strandbags Group. The Group operates 187 stores across Australia, selling hand bags, travel goods, wallets and accessories. The Group also recently acquired the Equip chain with 15 Equip stores. The Group has a number of stores located in the affected area. The Group’s stores have operated in the greater Brisbane area and have been trading on Sundays since August 2002. Ms Anderson says that Sunday is an important day for trading. Ms Anderson said that before Sunday trading was introduced in Dubbo, there appeared to be a lot of resistance to the proposal by the local council and others in the community. However, since the introduction of Sunday trading the feedback from the Group’s customers and her general understanding of community sentiment on the issue would indicate strong continuing consumer support for Sunday trading.
[76] Brad Dransfield: Mr Dransfield is the National Retail Manager of Bras n Things which has 144 stores across Australia and 3 in Toowoomba and Bundaberg. Mr Dransfield says that suburban Brisbane stores have been trading on Sunday since August 2002 and Sundays are an important trading day for the stores both in current terms and in terms of growth. According to Mr Dransfield, on average Sunday sales represent 11% of total weekly sales in stores permitted to trade on Sundays.
[77] Michael Manios: Mr Manios is the National Operations Manager for Lowes Manhattan Pty Ltd (Lowes) which operate 119 stores in Queensland, NSW, Victoria, ACT and NT. Five Queensland stores in Toowoomba, Warwick, Maryborough and Bundaberg will be affected by this application. The Brisbane suburban stores of Lowes have been trading on Sundays since August 2002 and interstate stores have been trading on Sundays from varying dates since the early 1990s. Based on this experience with Sunday trading, Mr Manios has no reservations in supporting the application now before the Commission.
[78] Peter Davies: Mr Davies is the National Retail Manager for Sanity Music which operates 230 stores across Australia and has stores located in Toowoomba, Maryborough, Bundaberg and Warwick. The Sanity Music stores in the greater Brisbane area have been trading successfully on Sundays since August 2002 and other stores across regional Australia trade on Sundays. While Sunday is a short trading day, the sales activity per hour is commensurate with what the stores experience on traditional trading days.
(vii) NRA Witnesses – Experts
[79] Dr Gerd Haberkern: Dr Haberkern is the Head of Research for Enhance Management which was commissioned by the NRA to conduct research into community attitudes towards Sunday trading in selected regional centres in Queensland and in the interstate areas of Dubbo, Tamworth, Mr Gambier and Devonport. In Queensland, a survey was undertaken in Bundaberg, Maryborough, Toowoomba, Warwick, Dalby, Gympie, Nambour and Kingaroy. Dr Haberkern’s research is Attachment 1 to Exhibit 73 in this proceeding. The results indicate that a strong majority of residents of the selected towns/cities agree that all shops should be able to
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choose to open on Sundays. Dr Haberkern’s survey indicates that between 60% and 80% of residents say they would shop on Sunday from time to time if all shops were open on Sundays. According to Dr Haberkern, his survey found strong agreement by residents with propositions about the need for more local jobs for young people, work opportunities being created by Sunday trading, shops being able to open on Sundays in line with many other enterprises, and visitors/tourists spending locally if shops were open on Sundays. The results of the survey indicate that the attitudes of residents of Warwick, Dalby and Kingaroy tend to be more “traditional” in their views whilst residents of Nambour, Bundaberg and Maryborough have a more positive view about the potential for job opportunities to arise as a result of Sunday trading.
[80] The specific propositions put to survey respondents about issues said to be related to Sunday trading were as follows:
it would be good if there were more jobs in this area for school leavers and young people; Sunday trading provides work opportunities for Uni students and school leavers who are restricted in the times they can work; as places such as cafes, cinemas, poker machine venues etc. all operate on Sundays, there appears no reason why shops should not open on Sundays if they want to; visitors and tourists will have more opportunity to spend in the local area if shops open on Sundays; the economy of this area suffers when residents go outside of the area to shop on Sundays; it would help families where both adults work to have all shops open on Sundays; shops trading on Sundays will provide work opportunities for people who need a second job to supplement family income; Sunday trading enables people with children to work in shops on Sundays when their partner can look after the children; Sunday trading would create more employment as a result of longer trading hours and increased sales; and shops should stay shut on Sundays because that’s the tradition.
[81] In response to a question from the Commission, Dr Haberkern agreed that the questions asked about Sunday trading put a positive spin on it, but that the objective was to have respondents indicate their level of agreement or disagreement with each of the propositions contained in the survey.
[82] In response to the proposition that the sample for the survey by age group was not representative, Dr Haberkern said that the variation referred to by Dr Baker would not have had much impact, given that with the sample size used, the statistical error in the results was plus or minus 10%. In relation to Dr Baker’s statement that the questions asked of respondents were “value laden”, Dr Haberkern said that the statements were presented in simple English so that respondents could either agree or disagree with them, and state how strongly they agreed or disagreed. Further Dr Haberkern pointed to the fact that many of the terms such as “benefit” used in the survey, had been used in the Western Australian Referendum on trading hours.
[83] Under cross-examination, Dr Haberkern agreed that respondents to the survey had been told that there was a proposal for all shops in their area to open on Sundays, but had not been asked about non-exempt shops in particular. Dr Haberkern also agreed that respondents to a survey used in a 2001 trading hours case had been asked a question about non-exempt shops. Further Dr Haberkern agreed that in the current survey respondents had not been asked about their shopping habits, other than whether they shopped on Sunday. Dr Haberkern also agreed that survey respondents were not asked about the type of shopping they were doing on Sunday and that it could range from a “major shop” to the purchase of a newspaper. In relation to why respondents in towns such as Dalby, Gympie, Kingaroy, and Maryborough were not asked a question indicating which particular shops were open on Sundays, Dr Haberkern said that nothing major in those towns was open on Sundays. Respondents in Maryborough, Toowoomba, Bundaberg and Warwick had been asked a question which indicated the shops that were open on Sundays.
[84] Dr Haberkern agreed that the first question asking whether respondents supported the continuation of Sunday trading in their districts did not distinguish between different types of shops, in particular convenience stores as opposed to supermarkets. While agreeing that the Christmas period was a peak retail period, Dr Haberkern said that questions about whether respondents had shopped on Sundays in that period were used to ground further questions about the respondents’ views about whether shops should always be open on Sundays.
[85] Anthony Dimasi: Mr Dimasi is a Director of Dimasi Strategic Research which was commissioned by the NRA to prepare a research report into the impact of Sunday trading on selected regional centres in Australia. In addition Mr Dimasi provided the Bench with:
NSW Briefing documentation of Armidale, Coffs Harbour, Gunnedah, Maitland, Singleton and Tamworth;
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Tasmanian Briefing documentation on Glenorchy, Bridgewater, Ulverstone, Devonport and Launceston; Victorian Briefing documentation on Bendigo, Ballarat and Warrnambool; and South Australian Briefing documentation on Mount Gambier, Victor Harbor, Gawler and the Riverland District.
[86] The main conclusions drawn from Mr Dimasi’s analysis of provincial town case studies in States other than Queensland were summarised by Mr Dimasi as follows:
across a wide range of towns of varying sizes and circumstances, the results after the introduction of seven day trading, specifically Sunday trading, generally show a pattern of adaptive change to the new trading hours regime; it has not been the case that all retail stores have been forced to open, or have chosen to open, on Sundays in these towns; a substantial proportion of the available retail facilities in each of these towns has however chosen to trade on Sundays when given the opportunity to do so; from an economic perspective, the results following the introduction of Sunday trading, in so much as they can be accurately measured, are also almost universally positive; these results can be measured usually as increased levels of employment in the retail sector; increased levels of development applications for retail projects; and either a stable or more typically a reduced level of retail shop vacancies, at least over the medium and longer terms; there has not been a systematic collection of customer feedback following the introduction of Sunday trading in these towns. Again, however, where reliable customer feedback is available, it is almost invariably positive. In towns such as Bendigo, where a referendum was conducted on the Sunday trading issue, the results were overwhelmingly in favour of a continuation of Sunday trading; the implications for the comparable Queensland towns are that a similar range of outcomes can reasonably be anticipated; and the likely outcomes for the Queensland towns that would be affected by the NRA application will include the following:
o only those retailers that choose to open on Sundays will do so; o there will be a wider choice of retail destinations available to the consumers in the respective towns; o the retail sector in each town is likely to be economically stimulated, resulting in higher levels of employment and higher levels of applications for further retail developments; o over the medium and longer terms, the levels of shop vacancy rates in the relevant Queensland towns are likely to see a downward trend; and o there will be an increased level of convenience offered to those consumers who choose to shop on Sundays, or those for whom it is necessary to shop on Sundays.
[87] In response to the evidence of Dr Baker, Mr Dimasi said that there were many reasons why retail developments could be located away from town centres including congestion and the fact that developments in retail such as bulky goods retailing and discount department stores required more space than was typically available in town centres. These reasons had no relationship to trading hours. Mr Dimasi also pointed to what was said to be an inconsistency in the views of Dr Baker which were supportive of retail development away from town centres where independents such as IGA were involved but not when Coles and Woolworths were involved. Mr Dimasi said that Dr Baker’s views appeared to be based on the size of the organisation rather than objective analysis.
(viii) QRTSA Witnesses – Kingaroy
[88] Christopher Littlejohns: Mr Littlejohns is a partner in the franchise of Klein’s Kingaroy and operates a store in the Kingaroy Shopping World. Mr Littlejohns is also the Administration Officer at the Kingaroy Council. Mr Littlejohns complained that no secret ballot has been conducted at the Kingaroy Shopping World in the last two years in relation to core trading hours even though such hours have been dictated by the Centre management and varied without consultation with store owners. Klein’s in Kingaroy does not trade on Sundays. Mr Littlejohns said that if Sunday trading is allowed, he will be forced to work an extra nine hours on Sundays and wages will increase because of penalty rates (double time and a-half). Mr Littlejohns said that customers only have a certain amount of money to spend and increased trading hours will not add to that amount of money. According to Mr Littlejohns, Sunday trading would result in family life being destroyed. He said that larger retailers trade under different rules where they don’t have to pay the same time and a-half or double time for Sundays. Owners of stores in shopping centres will be forced to open and Mr Littlejohns cited Easter Saturday as an example. Mr Littlejohns expressed the view that market domination is not good for the economy.
[89] Under cross-examination, Mr Littlejohns maintained that he was concerned that Centre management could force smaller retailers to trade on Sundays against their wishes. This had occurred at Christmas time when Centre
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management had told retailers that their core hours included Sundays. When Mr Littlejohns’ store had opened on the Sundays prior to Christmas, takings had been poor. Mr Littlejohns also maintained that extended trading did not provide people with more money to spend and that expenditure on activities such as gaming and betting, was not interchangeable with expenditure on retail products. Mr Littlejohns also said that both he and his partner would experience burnout by opening on Sunday. Although Mr Littlejohns only spent five hours in the shop he had another full-time position, and Sunday trading would require that either Mr Littlejohns or his partner work the additional hours necessary for trading on that day.
[90] Alfred Korn: Mr Korn is a part owner and Manager of Kingaroy Photo Lab. Mr Korn says that the owners are already tired from six day trading and cannot afford to employ anyone for Sunday work. He said that small business could eventually be taken over and destroyed if Sunday trading was introduced. If the application were granted, he would expect a downturn of approximately 10% to 15% in trade, and the value of the business would decrease. According to Mr Korn, if Sunday trading was introduced then trading on Saturday mornings and Mondays would decrease. Mr Korn expressed a belief that the agenda of major retailers is to put the small independent retailers out of business. Mr Korn also exhibited a petition of signatories against Sunday trading.
[91] Under cross-examination Mr Korn said that he did not believe that Kingaroy was ready for Sunday trading, and that everything that people in the town needed was available in the current environment without Sunday trading.
[92] Ross Ginder: Mr Ginder is the owner of Kingaroy IGA and believes that if Sunday trading were introduced then his store will suffer a downturn of 10%; he will be working an additional eleven hours; he will be forced to cut back on staff levels; and his ability to attract repeat customers would be reduced. According to Mr Ginder if Kingaroy really needed Sunday trading, the main street would already be in full swing on Sundays but it is not. Market domination is not good for the economy. If Woolworths is able to under price on a consistent basis over a period of time then he would have to close down. If his business is closed then local sporting clubs would lose sponsorship.
[93] Under cross-examination Mr Ginder agreed that if larger retailers such as Woolworths were permitted to open on Sunday, there would be three hours prior to 10.00 a.m. when his establishment would have an advantage by being open, when Woolworths was closed. Mr Ginder said that this was a very quiet time and only constituted about 5% of his total trade on Sundays. However, Mr Ginder also agreed that on Monday to Saturday he traded in competition with Woolworths, but that customers shopped in his store because it was smaller, provided better customer service and was easier for people to access. On Fridays Mr Ginder’s business produced substantial sales notwithstanding the fact that Woolworths was also open. However, Mr Ginder maintained that much of his Sunday trade was customers who usually shopped at Woolworths and that if Woolworths traded on Sundays he would lose a significant amount of his trade on that day. Mr Ginder said that he did not currently compete with Woolworths between the hours of 6.00 p.m. and 9.00 p.m. because he did not think that the customer base made this viable and he would not be able to cover wages and expenses associated with trading between those hours.
[94] Carol Hutcheson: Ms Hutcheson is the General Manager of Software-biz, a software development business in Kingaroy. Her evidence is that there is not enough population in Kingaroy to warrant extended trading hours. According to Ms Hutcheson, Woolworths has only four checkouts open during the week. People do not come to town to grocery shop unless there are other things to do at the same time. Sunday trading would be devastating to the independent retail sector. Ms Hutcheson said that staff do not want to work on Sundays. Under cross- examination, Ms Hutcheson said that her opposition to Sunday trading was both philosophical and practical. Ms Hutcheson also said that her opposition to Sunday trading was based on her perceptions that when it had been introduced at Logan, service suffered because younger or less experienced staff were employed to work on that day.
(ix) QRTSA Witnesses – Gympie
[95] Donna Neilson: Ms Neilson is the President of the Cooloola Regional Development Bureau, Chairman of Cooloola Shire Growth and Economic Development Committee and a Councillor of Cooloola Shire. According to Ms Neilson, Cooloola Shire has a high unemployment rate (11.9%) and many residents have a low disposable income (in 2001 – $300). Many shops are privately owned small businesses and for them to remain viable should Sunday trading be introduced in the area, it would be necessary for small traders to also open on Sundays. Such traders would need to work personally or employ staff at penalty rates, neither of which was a desirable alternative. The quality of life for such operators would be severely diminished. According to Ms Neilson extended trading hours will not increase expenditure and there is ample time for shopping during current trading hours. Ms Neilson said that she was authorised to speak on behalf of the Cooloola Shire Council which, after consultation with local business owners, is opposed to increased trading hours.
[96] Under cross-examination Ms Neilson said that the Cooloola Shire Council had consulted with local business owners before voting to oppose the NRA application. This had occurred by councillors moving through the
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community speaking to business owners and also by virtue of councillors holding positions on the Chamber of Commerce and the Cooloola Regional Development Bureau, which had 182 members. Ms Nielson said that she personally had spoken to twelve to fourteen retailers about the potential impact of Sunday trading. In response to a question from the Commission Ms Nielson said that some of these retailers were located in shopping Centres anchored by larger retailers such as Woolworths. Proprietors had maintained that they did not wish to trade on Sundays and that it would increase their workload as they themselves would be required to work on that day.
[97] While Council had not consulted with the community in any formal manner in relation to the NRA application, regular meetings were held with ratepayers throughout the Shire at which feedback was received about what ratepayers wanted from Council. Council had not reviewed the market research conducted by the NRA and Ms Neilson was not aware of any discussions between Council and the NRA. However Ms Neilson rejected the proposition that Council had simply responded to the QRTSA, stating that Council had responded to ratepayers.
[98] Ms Nielson agreed that minutes of a Council meeting shown to her by Mr Black did not indicate that she had been authorised to give evidence on behalf of Council or that Council was going to be involved in the proceedings before the Commission. However, Mr Nielson also said that the matter had been discussed at subsequent meetings and that her involvement in this matter was consistent with her role as a Councillor and a member of the Board of the Cooloola Regional Development Bureau. According to Ms Nielson the Cooloola Regional Development Bureau had discussed the matter of Sunday trading and was opposed to the NRA application. Ms Nielson also said that she had undertaken some research on the internet to examine the effect of Sunday trading on regional centres in other States. In relation to current trading hours Ms Nielson said that there were ample opportunities for people to shop in what were already extended trading hours.
[99] Ms Neilson said that she had supported the development of a Centro shopping Centre in Gympie at which a Big W outlet would be established, while maintaining her opposition to Sunday trading. The Big W store would prevent leakage from Gympie to other centres and would become a draw card for other retailers. However, Ms Neilson maintained that these positive effects could be achieved without additional trading hours.
[100] Roger Broadley: Mr Broadley is the proprietor of Gympie Toyworld and Pedal Power Plus and also a member of the Gympie Chamber of Commerce. If the application were to be granted Mr Broadley says that he will have to work 62 hours per week and his overheads will increase. The power bill will increase by 12%, there will be an additional 5 hours of senior wages by two employees and a further 5 hours of junior wages by 3 employees. Mr Broadley opposes Sunday trading in country Australia not only for its economic impact but also because it is a surreptitious and potent form of social engineering. It is, according to Mr Broadley, a means of manipulating our rural society by stealth and it is a de facto means of shaping social change. Mr Broadley says that it further channels more activity to the two major retailers which already have an unhealthy percentage of the retail dollar. Why single out retailers for special treatment and not banks, post offices, law courts, accountants, solicitors and the professions? Market domination is detrimental to rural Queensland. According to Mr Broadley, the majors collude with suppliers and are prone to predatory pricing with the net result being that small players are going to the wall. Mr Broadley questions why it is that the majors in Gympie do not now open to the full gambit of allowable hours available to them during the week.
[101] Under cross-examination, Mr Broadley said that while his store had a wider retail offer than competitors such as Target Country, that Target County had “loss leaders” in its product range. Mr Broadley cited the example of a particular computer game which he sold for $30.00 more than the buying price from his supplier. Target Country had sold the same computer game at $91.00 below Mr Broadley’s sale price and $40.00 below his “buy” price. Mr Broadley said that he had discussed his views on Sunday trading with Councillor Nielson, who had been in his shop “last week”. Mr Broadley said that he was not opposed to competition, but believed that only businesses geared to trade on Sundays, such as convenience stores and like, should be permitted to trade to preserve the lifestyle of persons in rural Australia.
[102] Paul Medway: Mr Medway is the owner of Cooloola Electronics Pty Ltd and is a member of the Gympie Chamber of Commerce. Mr Medway says that if Sunday trading were introduced he would be working about 10% more hours and his overheads would increase with no increase in profits. Further, additional staff would need to be employed and paid penalty rates. Overall the value of his business would decrease. In addition, Mr Medway is concerned at the loss of rural lifestyle and family time with the introduction of seven day trading. Mr Medway referred to the fact that the major retailers currently get preferential treatment from suppliers and shopping centre management – they buy better, get subsidised rent and subsidised advertising. The cost to the independent and small retailer to achieve the existing turnover is increased with the introduction of seven day trading and the competitiveness of the small retailer is lost. Small retailers will trade on Sundays, not out of demand for profits but out of the need to retain repeat customers and not lose them to the majors.
[103] Under cross-examination Mr Medway agreed that at the present time, competition was not an issue for his business, but added that this situation may change down the track. Mr Medway said that when he prepared his
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witness statement he did not factor in additional sales which may flow from his store being open on Sundays, as he believed that existing sales from Monday to Saturday would simply be spread over seven days of the week instead of six, without any net growth. Mr Medway also agreed that his comments about market domination were based on his views rather than experience in his own business.
[104] Avraam Savvas: Mr Savvas is the owner of Crescent Road Groceries, Gympie and he believes his store will suffer a downturn of 60% of Sunday trade or about 11% of the weekend trade if Sunday trading was introduced for the majors. Mr Savvas says that he cannot compete with the majors on pricing. Mr Savvas’ view is that he will probably be put into bankruptcy should the application be successful. Mr Savvas says that he purchased the shop on the basis that there was no Sunday trading for the majors.
[105] Sandra Groundwater: Ms Groundwater is the owner/operator of Ginger’s Fruit and Vegetables and Convenience Store, Gympie. The nearest shopping centre is Goldfield Plaza which is approximately two kilometres away and has both a Coles and IGA store. Woolworths is located some three kilometres from her store. Ms Groundwater believes that her store will suffer a reduction in net profit if Sunday trading is granted for the majors. Ms Groundwater referred to the fact that 39.4% of Gympie’s population is made up of people over 45 years of age. Ms Groundwater spoke of a small retailer, Farm Simo, who closed because a Coles store was located next door to Farm Simo and they would constantly under-price his store. Ms Groundwater was in business when late night trading and Saturday afternoon trading came into effect in the early 1990s and says at that time she lost a considerable amount of trade on Saturdays as a result of extended trading. Ms Groundwater’s evidence is that in the main street of Gympie there are empty shops which to her indicates there is an oversupply of retail space.
(x) QRTSA Witnesses – Bundaberg
[106] Kevin Cast: Mr Cast is a director of IGA Supermarket at Bargara. Currently, Mr Cast’s competition is located 14 kilometres away in Bundaberg and comprises Woolworths, Coles and another IGA supermarket. Mr Cast’s expectation was that if the major retailers opened in Bundaberg on Sundays, his trade at Bargara would decrease by approximately 50% on Sundays and 10% over the week. He based his estimation on his experience when Sunday trading was introduced in Brisbane. That experience showed that turnover during the week was lost or transferred to Sunday, there were no incremental sales generated, the majors close to his stores lowered their prices in an attempt to acquire repeat customers and the value of his business declined. While he did not agree with Sunday trading in Brisbane he can see that there would be more demand for it in Brisbane when compared to rural towns. Most people who live in the country live there for the lifestyle and not for the shops on Sundays. Mr Cast also referred the Full Bench to the fact that the major retailers do not all take advantage of the current allowable hours, and closed at 6.00 p.m. when they were permitted to open until 9.00 p.m.
[107] Under cross-examination, Mr Cast said that there was an application currently before Council for approval for a Woolworths supermarket to be established at Bargara. The Coles Myer Group currently had an application before Council for approval to open a new store seven kilometres south at Innes Park. Mr Cast said that if Sunday trading was granted in Bundaberg, he believed that it would take two years for his business to recover to its current levels. Mr Cast also said that he could not understand why major retailers wanted additional trading hours when they were not fully utilising the hours that were currently available to them.
[108] Under cross-examination, Mr Cast agreed that a major supermarket being located in Bargara, was a much greater threat to his business than Sunday trading in Bundaberg. Mr Cast also said that currently customers from Bundaberg were coming to Bargara to shop in his establishment on Sundays and that many customers did a full food shop in his establishment.
[109] Tony Dear: Mr Dear is the owner of the Night Owl Convenience Store in Bundaberg and believes there will be a downturn of approx 10% in his trade should Sunday trading be introduced for the majors. Further he will be working an additional four to six hours and 20% of base value of his business could be lost. Mr Dear says that Bundaberg has the highest poverty and unemployment in Australia and there was already a plague of empty retail space in Bundaberg. According to Mr Dear, sales loss on Sundays would mean that he will have to work himself and reduce the number of employees by two for the day. Mr Dear could not see a need for extended trading in Bundaberg as there was no peak hour traffic for people to sit in and the population was not “time poor”. According to Mr Dear, consumers in Bundaberg have plenty of time to shop during the existing trading hours.
[110] John Learmonth: Mr Learmonth is the Managing Director of Learmonth’s Foodworks, Bundaberg and has run the store for his mother for 20 years. He estimates a downturn of approximately $10,000 per week should the application be successful. Further he states that he will be working additional hours as costs will have to be cut and he will have to reduce staff. Mr Learmonth says that his business trades on Sundays as a necessity in order to survive against the major retailers. He sees the majors as having a monopoly of the market and sees this expanding if they are able to trade on Sundays i.e. his most profitable day. Mr Learmonth referred to the
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advantage that the majors have over small independent retailers in that he gets ten days to pay for goods whereas the majors get a substantially longer time to pay their suppliers.
[111] Colin Quinton: Mr Quinton is a co-owner of Bundaberg Fiveway AUR Express Foodstore and believes he will lose 10% – 15% of his trade and will be working additional hours in lieu of existing employees should the application be successful. According to Mr Quinton, there are already too many food retailers per head of population in Queensland. His view is that the independents are needed as a viable third party to the two majors. Mr Quinton also referred the Full Bench to the fact that there is currently a lot of vacant retail space in Bundaberg.
(xi) QRTSA Witnesses – Gayndah
[112] Dean Lohse: Mr Lohse is the owner of Gayndah Foodstore. His nearest competitor is Supa IGA which does not currently trade on Sundays. It is Mr Lohse’s view that if the application is granted his store turnover will decrease 60% on Sundays.
(xii) QRTSA Witnesses – Maryborough
[113] Micklos Souvilis: Mr Souvilis is the Store Manager of Maryborough Foodworks. Mr Souvilis said that he had been involved in the business since childhood and that his father had started the business in 1955. The nearest competition for Mr Souvilis’ business is Bi-Lo in Station Square and the new Aldi supermarket which is only 100 metres away from his store. Mr Souvilis was authorised to speak on behalf of Maryborough Chamber of Commerce in this matter. The Maryborough Chamber of Commerce voted to oppose the introduction of further Sunday trading. Mr Souvilis believes that if Sunday trading is introduced for the major retailers he would lose approximately 50% of his current business on Sunday and 10% of total turnover. He said that he would, in those circumstances, be forced to cut back staff. According to Mr Souvilis, Sunday trading is part of the path to total domination of the retail industry by the major retailers. It was his view that extended trading was not needed in Maryborough as it would not solve any problems regarding escape expenditure to Hervey Bay. Mr Souvilis said that escape expenditure to Hervey Bay was because Hervey Bay is a tourist location and offered more attractions such as the beach. This would not change because major retailers were permitted to trade on Sundays in Maryborough.
[114] Mr Souvilis was asked in cross-examination about what preparations he was making to trade competitively with major supermarkets on Sundays. Mr Souvilis said that he could never trade competitively with major retailers because there was not a level playing field. In support of this contention, Mr Souvilis pointed to the fact that major retailers were given ninety day account terms by suppliers while smaller businesses such as that operated by Mr Souvilis could only achieve seven or fourteen day account terms. Mr Souvilis maintained that he could be more competitive in the fresh food area, but not in dry groceries. It was also apparent that Mr Souvilis is planning to upgrade some areas of his store in an attempt to remain competitive. When asked whether he was familiar with remedies available to small businesses under the Trade Practices Act 1974 Mr Souvilis questioned whether any such action had succeeded in the past or would succeed in the future.
[115] John Ivy: Mr Ivy is the proprietor of Tiana’s Hot Bread Shop, Maryborough. He is also a member of the Maryborough Chamber of Commerce. It was Mr Ivy’s evidence that the Chamber voted to oppose the extension of Sunday trading by a majority of 51%. Mr Ivy believes that his store will suffer a down turn of 12% – 15%, that the average customer count and sales will be down and he will have to cut back on the number of employees. Mr Ivy is convinced that customers will be drawn away from his business if the major retailers can trade on Sundays. He does not believe that he can compete with the major retailers. Mr Ivy expressed the view that consumers will shop over seven days instead of the existing six days but will continue to spend the fixed amount of disposable income that they have – it will just be spent over seven days.
[116] Christine Ambrose: Ms Ambrose is the owner of Klein’s Maryborough and Klein’s Hervey Bay. She is also a member of the Maryborough Chamber of Commerce. At the Hervey Bay store she said that since the introduction of Sunday trading the store’s Saturday trade has decreased. If this application were to be successful Ms Ambrose estimated that her husband would be forced to work an additional nine to fourteen hours per week as the penalty rate for employees would not be warranted when the sale price of the commodity remained the same. Ms Ambrose questioned the ability of most small retailers in Hervey Bay to make a profit on Sunday. Ms Ambrose referred to the disruption to family life caused by seven day trading and said that small business had to weather both the social and economic cost of the campaign by big business to dominate the market place. Ms Ambrose advised the Bench that following the decision by the Commission to allow trading on Monday 27 December 2004 and Tuesday 28 December 2004 the Manager of the Centre in which her business was located advised her that such hours were core trading hours and that if they did not open, they would be fined. She was concerned that if Sunday trading were to be introduced then the pressure would be on her to open her business on Sundays.
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[117] Under cross-examination, Ms Ambrose disagreed with the proposition that many small retailers chose to remain closed on Sundays as major retailers were not open to act as a drawcard for customers. Ms Ambrose used the Esplanade at Hervey Bay and Hastings Street Noosa as examples and said that for many years smaller retailers in those areas had opened although there were no major retailers nearby. Ms Ambrose also said that her views that Sunday trading would not be worthwhile for her business, were based on projections derived from her experience in retail over a period of twenty-two years, as well as her experiences operating her business in Maryborough on two Sundays leading up to Christmas in 2004. Ms Ambrose said that Christmas was a busy time for her business.
[118] Stephen Kidd: Mr Kidd is a Director of Boltons in Maryborough – a store that sells furniture, floor covering, curtains, Manchester, real estate and bedding. The store employs seven full-time and two part-time employees. According to Mr Kidd, the economic viability of the region was initially affected by gambling which started in or about 1994 and was exacerbated by the drought and low rural commodity prices. The fact that people in Maryborough had less discretionary income to spend meant that the local business sector began to contract with the result being that stores in the CBD began to close. Maryborough saw the Timber Mill, the Sugar Mill, foundry and engineering firms starting to down size. With the establishment of the Station Square retail precinct the escape expenditure has shifted from one set of national retail tenants to another set in the town. According to Mr Kidd, Maryborough as a community has not seen a net benefit. Mr Kidd’s evidence was that the main tenants attracted to Maryborough since Station Square was established are the thrift shops, the junk shops and one or two pawn brokers. Once Station Square was completed in 2000, the number of small businesses closing their doors accelerated while the local economy continued to contract. Mr Kidd’s view is that the trade on Thursday nights does not justify opening and the Saturday morning trade is almost a waste of time. According to Mr Kidd, allowing the major retailers, and therefore the shopping centres, to open for another day will only serve to increase the rate of destruction of the Maryborough CBD.
(xiii) QRTSA Witnesses – Toowoomba
[119] Anthony Hanna: Mr Hanna is the Manager of Hanna’s Department Store in Toowoomba. The store has been a family operation since 1956. Mr Hanna believes the store will suffer a downturn of approximately 15% should the application be successful. He said that working additional hours and paying extra penalty rates without a guaranteed increase in sales could have serious effects. If business is not as profitable, it will be less desirable to any prospective buyer. According to Mr Hanna extended trading hours causes a shift in employment patterns. Most local people prefer to spend their weekends involved in sport or maintaining their property. Since the relaxation of trading hours to all day Saturday, most small independent outlets have either ceased trading or are continually changing hands.
[120] Mr Hanna’s view is that market domination is not good for the economy as the major retailers have the ability to dictate terms to suppliers (i.e. price, variety and delivery dates), control not only the price competitors can receive for their goods, but also the range available and the selling period. The establishment of large shopping centres in Toowoomba has lured independent retailers and specialist outlets into the large shopping centres and away from traditional areas and in the CBD of Toowoomba has caused declining trade and property values. According to Mr Hanna, Toowoomba has a limited number of shoppers, most with a limited budget. In his view extended trading hours simply means that such limited budgets will be utilised over seven days instead of six. Mr Hanna agreed that Toowoomba suffered from escape expenditure to Brisbane and the coastal region but said that it also benefited from escape expenditure from rural towns in the surrounding area. Mr Kidd expressed concern at the loss of business in the Toowoomba CBD resulting from business going to the shopping centres. Mr Hanna said that it was not his intention at this time to trade if the application were granted.
[121] Under cross-examination Mr Hanna said that his store could not trade on Sundays under the current trading hours Order, and would not do so if the NRA application were granted, because the entire business revolved around the family and they wanted to have their traditional Sunday together. Mr Hanna also said that his store closed on Saturdays at 1.00 p.m. notwithstanding the fact that Myer traded until 5.00 p.m. Mr Hanna did not disagree with the proposition that there was no difference between electing not to compete with Myer on Saturday afternoon and electing not to compete with them on Sunday. In response to the proposition that tourists coming to Toowoomba would wish to shop on Sundays, Mr Hanna said that, in his view, tourists came for the flowers and mountain air, not to shop, especially on a Sunday. In relation to questions about his views on the domination of major retailers, Mr Hanna said that major retailers such as Myer could buy stock at lower prices than smaller retailers and received deliveries of stock earlier. Further, larger retailers could control price and availability of stock by going into sale mode before smaller retailers.
[122] Robert Campbell: Mr Campbell is the Manager of Mack Campbell’s Bookstore, Toowoomba and is a member of the Toowoomba CBD Taskforce Incorporated. Mr Campbell said in response to the evidence of Mr Anderson, that this organisation was not defunct. His evidence was on behalf of both organisations. The nearest shopping centre to his bookstore is Garden Town. According to Mr Campbell, Toowoomba City is growing at 0.4% per annum. Retail floor space per square metre in the last twenty years has doubled.
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Toowoomba currently has 30% more retail floor space than Ipswich and a population 25% less than Ipswich. It was Mr Campbell’s opinion that Sunday trading for Toowoomba would be a disaster. His view is that market domination is not good for the economy. He sees any extension of trading hours as a further erosion of family life and values. He also believes that the introduction of extended trading will result in a diminishment of competition. According to Mr Campbell, there are a lot of superannuation funds with too much money that see investment in large shopping centres as profitable and they fail to consider the interests of the town in which they are making the investment. He says that the oversupply of retail space in Toowoomba has lead to a deterioration of the CBD over the past twenty years. The shopping centres have caused store closures in the CBD due to competition or forced the CBD traders from the main street to the shopping centres. Mr Campbell sees the argument about escape expenditure to Brisbane and coastal regions as nothing more than smoke and mirrors to win over local businesses. Until Toowoomba has a dramatic increase in population, a dramatic increase in tourism and a significant increase in disposable income there is no need for seven day trading.
[123] Stuart Copeland MLA: Mr Copeland is the Member for Cunningham and Shadow Minister for Health in the Queensland Government. Mr Copeland previously raised concerns in the South-East Queensland trading hours matter in this Commission that the granting of that application could have serious implications for Toowoomba, especially in relation to small business. Mr Copeland said that to take away the only competitive advantage that small business had in the form of Sunday trading would have a disastrous effect on the profitability of such businesses. Shortly after Brisbane and Ipswich were allowed the right to trade on Sundays he started to hear reports from local business owners about the negative effects Sunday trading was having on their businesses in Toowoomba. He became convinced that his predictions given in his evidence in 2001 were correct. He continues to have serious concerns about not only the inability of small rural towns surrounding Toowoomba to compete with Toowoomba if Sunday trading was introduced but also the ability of small business in Toowoomba to compete with larger retailers. Mr Copeland referred to his evidence in 2001 that the granting of the South-East Queensland application would be a step toward total deregulation. In support of this view Mr Copeland said that he attended a presentation on 10 February 2005 by representatives of both the NRA and QRTSA, where the NRA stated that if they were successful with this application, there would be an application for the remainder of the State by the end of the year. Mr Copeland said that it was apparent that many small businesses are struggling to survive and that the extra pressure associated with retail competition on Sundays from the major retailers in Toowoomba would be devastating to many small businesses both in Toowoomba and in the outlying region. In his view the granting of the application would have a negative effect on employment and the community as a whole. Mr Copeland also gave evidence about market domination of Coles and Woolworths. It was his view that when there were large events in Toowoomba visitors to the region could purchase anything they wanted under the present trading hours regime.
[124] Ronald Bolte: Mr Bolte is the owner of the Blueline Store, Bridge Street, Toowoomba. The store employs ten casual employees and he works approximately sixty hours per week and Sunday is the store’s best trading day. The nearest shopping centre is the Wilsonton Shopping Centre which is about 1.5 km from his store and the nearest competitor is a Shell Service Station owned by Coles in Bridge Street, opposite his store. Mr Bolte said that if the application was granted, there would be a downturn of 6% and he would be working up to eighty hours per week. According to Mr Bolte the value of his business will drop and with decreased sales, it would be a systematic lay off of staff. It was Mr Bolte’s evidence that extended trading would give the national chains more market share than what they already control.
[125] Drew Camm: Mr Camm is the Managing Director of the De Pot Man store in Toowoomba and three similar stores in Brisbane. The store sells pots, potting mix, outdoor features and rocks. Mr Camm opposes the application as most of his business is conducted on weekends. The nearest shopping centre to his store in Toowoomba is Grand Central which is some three hundred metres away. The store’s nearest competitor is Bunnings Warehouse which is four kilometres from his Toowoomba store. Mr Camm believes that there will be a down turn in his business of approximately 25% should the application be successful and he will be working at least another ten hours per week. With a reduction in sales, the business will employ less people and the value of his business will be reduced. Mr Camm gave evidence of the negative effects on his store in Brisbane with the introduction of Sunday trading in Brisbane. That resulted in the turnover in that store reducing by 25%. That store has, to date, been unable to recover the loss. Mr Camm says that when he reads articles in the paper or hears about the alleged success of Sunday trading in other States such as New South Wales or Victoria, he does not believe a word of it. Mr Camm says that he now employs 55 people in his four stores but says he would have employed more had it not been for the introduction of Sunday trading in Brisbane.
[126] Gregory Pearse: Mr Pearse is the General Manager of Coco’s Fresh Food Markets (Coco’s) which predominantly sells fruit, vegetables and groceries. The Toowoomba store was opened in 1993 but Coco’s has operated it only for the last eighteen months. The Sunday trade turnover of the Toowoomba store is the best of the week. If Sunday trading were to be introduced, there would, according to Mr Pearse, be a down turn in business of about 20%, sales will drop, permanent employees will be asked to go casual and there will be a 33% loss of value of the business. Nine Coco’s stores in the South-East Queensland Area have been adversely affected by the introduction of Sunday trading. Coco’s suffered an initial decrease of 10% when Sunday trading
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was introduced in the South-East Queensland Area in August 2002. The trend continued over the next two years. Market domination means that the majors can buy at reduced prices e.g. sugar is sold for $1.39 for 2 kg in Coles whereas his buying price is $1.90. When the majors open on Sundays, customers shop less at independents. Supermarkets can lose regular, repeat or loyal customers if the store does not provide some unique value over the competition. The stores in South Tweed Heads and Maroochydore have a Sunday turnover of 9.7% and 13.8% respectively whereas Toowoomba’s Sunday turnover is 20.5%. This, according to Mr Pearse, is a good indication of how the majors have been able to capture the turnover that would otherwise be available to his stores. Mr Pearse did admit that when the store was purchased in Toowoomba he was then aware that the trading hours advantage on Sunday might be lost.
(xiv) QRTSA Witness – Allora
[127] Deborah Smith: Ms Smith is the owner of the Allora Supermarket. Ms Smith says that Sunday is the day when the store is used as both a convenience and a top up store. She has a lot of customers living in the rural catchment area that surrounds the town and who do their major grocery shop at Woolworths or Coles in Toowoomba or Warwick during the week and top up by shopping with her on a Sunday. The closure of the major retailers on Sundays has given top up customers no alternative than to investigate other shopping options which means that if they like what they find, then they are happy to shop in Allora more regularly. According to Ms Smith, market domination is not good for the economy as the major retailers already have the vast majority of the grocery retail market in the Warwick and Toowoomba area. Toowoomba, she says, is like an octopus, it reaches out and sucks dry the economies of the small towns in the region.
[128] The independent grocery industry is vital to the Australian economy in two very important ways. Firstly, the constricting of the grocery market into two major providers ensures less consumer choice and a potential manipulation of grocery pricing which is anti-competitive. Secondly, the independent grocery industry is the only option for rural and remote Australia. Consumers who live in regional Australia play a vital role in the Australian economy and if they are forced into paying unreasonably high prices for food it reduces their desire to live and work in regional Australia. Anti-competitiveness has been further compounded by the ownership of hotels throughout Queensland by the majors or their subsidiaries. This allows them to locate bottle shops in close proximity to many of their supermarkets which adds to their attractiveness to consumers. The provision of liquor licences in Victoria has, according to Ms Smith, allowed the independent grocery industry to thrive in a seven day trading environment. Whilst in the short term, Ms Smith says that her business will be isolated from the negative impact of Sunday trading should it be granted, but she is concerned about the long term implications. Ms Smith also referred to the fact that Woolworths Limited is the biggest owner of poker machines in Australia. Further the independent retailers are at a 3% disadvantage from day one, paying a 3% service fee on purchases from their suppliers and having significantly shorter time frames in which they are required to pay for goods.
(xv) QRTSA Witness – Laidley
[129] Kim Chounding: Mr Chounding is the owner of both the Laidley and Manly Foodworks stores. The Laidley store will be affected should this application be granted and the Manly store has been affected by the granting of Sunday trading in the South-East Queensland application in August 2002. As NSW General Manager of Super Kmart, Mr Chounding says that he was active in lobbying for extended trading hours in NSW. In relying upon his experience in this regard Mr Chounding says that when Sunday trading is introduced for the major retailers they gain incremental sales with the weekly take for such stores increasing. Sales decrease midweek as a portion of these purchases are moved to Sunday. In his experience this allowed major retailers to decrease staff during the week to pay for staff needed on Sundays. If this application were granted Mr Chounding says that his Laidley store will be affected by a down turn in business of approximately 8%. In estimating this down turn Mr Chounding relied upon his experience in the Manly store in 2002. That store has still not returned to its pre 2002 position. The reduction in business following the introduction of Sunday trading in Brisbane did not initially affect his Manly business because he gained the advantage of the local Franklins store closing down. Shortly thereafter however Woolworths opened and the net result was a loss in turnover of a minimum of 8%.
(xvi) QRTSA Witness – Chinchilla
[130] Ricky Smith: Mr Smith is a co-owner/store manager of Foodworks Chinchilla. Whilst Mr Smith is aware that the current application does not include Chinchilla he is still concerned at the consequences for Chinchilla if the application is granted. The nearest chain competitors to Mr Smith’s store are found in Dalby. His evidence is that he invested $2.5 million in Chinchilla on the fit out of a new supermarket and this Sunday trading debate has only come up since he made this investment. He concedes that more customers from Chinchilla were travelling to Dalby for their grocery shop prior to his opening of the new store and believes there are still some repeat customers travelling to Dalby to complete their shopping. By granting the application, the likelihood of customers being attracted back to the major retailers in Dalby will increase due to the fact that the majors will implement price-cutting strategies to put the independents out of business. Mr Smith was managing a store in
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Brisbane when Sunday trading was introduced and this is exactly what happened with that business. It is Mr Smith’s opinion that market domination by Coles and Woolworths is totally out of control. They are into everything and if allowed into small rural areas, they will destroy small business according to Mr Smith. [131] Mr Smith said that it was a forty-five minute drive from Chinchilla to Dalby and a two hour drive from Chinchilla to Toowoomba. Mr Smith said that the number of people that went to Dalby on Sunday to play sport was double the number that did so on Saturday, giving rise to a concern that these people would shop while in Dalby on Sundays, if trading in Dalby was permitted on that day. Mr Smith conceded that Sunday trading in Toowoomba would not have as much of an effect on his business as would Sunday trading in Dalby.
(xvii) QRTSA Witness – Clifton
[132] Eugene Hollis-Neath: Mr Hollis-Neath is a Councillor in the Clifton Shire Council and was authorised by the Mayor of the Council to represent the Council when giving evidence. Clifton Shire is a small rural shire relying on farming as the major source of income for small business. Mr Hollis-Neath conducted a survey in February 2005 questioning most businesses in the Shire on the issue of Sunday trading. According to Mr Hollis-Neath, all persons questioned said that their business would suffer if deregulation were introduced. One business owner said that when late night trading was introduced his Friday figures were down by 35%. The Clifton Council did not formally vote for a position on Sunday trading but authorised the survey to be conducted. According to Mr Hollis-Neath while Council does not support the current application for Sunday trading, there was no formal resolution to that effect. Shopkeepers in the Clifton Shire would also suffer if there was Sunday trading in Toowoomba and/or Warwick.
[133] During cross-examination, Mr Hollis-Neath said that retail businesses in the Clifton shire were principally small and family operated. While most people tended to do a major shop in Toowoomba or Dalby periodically, the general store in Clifton was very popular on a Sunday, and businesses such as the butcher and haberdashers were well patronised. The hardware store in Clifton was open on Sundays, but Mr Hollis-Neath said that it was his belief that this was to encourage customers to shop in Clifton and the owner was only breaking even by opening on a Sunday. Mr Hollis-Neath also said that a number of retailers in Clifton had suffered a decline when Thursday night shopping had been introduced in Toowoomba and had not fully recovered. Mr Hollis- Neath said that the Clifton Shire Council had asked him to undertake a survey of retailers as a councillor, on the basis that his portfolio was economic development and marketing. The purpose of the survey was to get a feeling for how business owners in the town of Clifton believed that deregulation would affect them. Mr Hollis- Neath also said that businesses in Clifton would be affected by Sunday trading being granted in either Toowoomba or Dalby or both areas.
(xviii) QRTSA Witnesses – Warwick
[134] Ron Bellingham: Mr Bellingham is the Mayor of Warwick Shire Council and he gave evidence as the authorised representative of Council. The Shire is located in the heart of the Darling Downs and encompasses an area of 4,725 square kilometres with a population of over 20,000. The Shire comprises six divisions represented by twelve Councillors and himself. It was resolved on 25 January 2005 at Council’s General meeting that Council would totally oppose the introduction of Sunday trading within the Warwick Shire due to the impact on both small businesses and employees in the rural community. The matter was again raised at Council’s General Meeting of 23 February where it was agreed that while Council still opposed the introduction of Sunday trading, there was recognition that the economy of the Shire could potentially suffer a negative impact if Sunday trading was introduced into other regional areas such as Toowoomba or Stanthorpe. As a result, Council requested that if it was the decision of the Commission to allow Sunday trading in such regional areas that Warwick Shire should also be included. According to Mr Bellingham, the Southern Downs Tourist Association, which has provided support for Sunday trading, represents a region and Warwick is only part of that region.
[135] Under cross-examination, Mr Bellingham said that currently in Warwick hardware stores, convenience stores and service stations opened on Sundays. In response to the proposition that if the NRA application was granted, that smaller independent retailers would have an advantage prior to 10.00 a.m. on Sundays before larger retailers opened, Mr Bellingham said that in his view the period from 10.00 a.m. to 2.00 p.m. on Sundays was of much greater significance for small independent shops. This was because people in the community were generally more active in the time frame between 10.00 a.m. and 2.00 p.m. Mr Bellingham said that this view was based on his own experience as a member of the community, a shopper and a business owner.
[136] Mr Bellingham also rejected the proposition that the initial opposition of the Warwick Shire Council to the NRA application had been tempered by its resolution of 23 February 2005. In this regard the Council’s opposition to the application continued, but Council had decided that from an economic point of view, there would be no choice for Warwick if Sunday trading was approved in the Toowoomba area, but to follow suit. Mr Bellingham also agreed with the proposition that the view of the Warwick business community was one of resignation in the event that the NRA application was granted. In response to the question of whether he was aware of any person
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supporting the NRA application, Mr Bellingham said that the management of the shopping centre in Warwick was supportive. The owner of that shopping centre, whilst opposed to Sunday trading, believed that it was inevitable that seven day trading would be introduced. [137] Under cross-examination, Mr Bellingham said that market research about consumer attitudes obtained by the NRA had not been placed before Council. Mr Bellingham agreed that the Rose City Shopping Centre had made a beneficial contribution to the community and its retail infrastructure, and its central location had assisted in maintaining the utility of the shopping strip in the centre of Warwick. Mr Bellingham disagreed with the proposition that only independent food retailers would be affected if Sunday trading were allowed generally, saying that there were some significant businesses in the Rose City Shopping Centre, which would impact on other businesses if they traded on Sundays. Mr Bellingham agreed that Sunday trading in the Rose City Shopping Centre may generate additional traffic which would benefit some small businesses that were currently trading on Sunday.
[138] Mr Bellingham said that he agreed generally with the sentiments expressed in the letter of support for Sunday trading from the Southern Downs Tourist Association, but said they were only true on particular weekends where there were sporting activities in the region rather than all weekends. Such activities included motor sports at Morgan Park and also polo and show jumping events. Mr Bellingham also said that the events were usually focused on Saturday afternoons and the earlier hours of Sunday through to 3.00 p.m. or 4.00 p.m. Generally speaking, the opportunity for people participating in such events to also go shopping, was limited. Mr Bellingham also maintained that there was a strong participation by women in these events, and he did not believe that women would shop while men attended them.
[139] In response to questions from the Bench, Mr Bellingham said Warwick would be impacted if Sunday trading was granted in either Toowoomba or Stanthorpe. The travelling time between Toowoomba and Warwick was approximately forty-five minutes, and, while there was currently some leakage from businesses in Warwick to those in Toowoomba, Ipswich and Brisbane, the leakage to Toowoomba would significantly increase if Sunday trading was granted in Toowoomba.
[140] Gregory Newey: Mr Newey is the proprietor of Warwick Outdoors & Sports. He is also the President of the Warwick Chamber of Commerce and Industry. In both capacities he opposes the current application. According to Mr Newey, the Rose City Shopping Centre is one hundred meters from his business. Mr Newey estimates that if the current application was granted, he would have no choice but to trade on Sundays and his wages bill would increase by approximately 20%, the power costs would be $25 more per week and he will have to work an additional six hours per week. Mr Newey says that he would expect to cut staff during the week to prop up Sunday trading. In Mr Newey’s opinion provincial cities with a population of 15,000 or less have no need for general seven day trading. Small populations cannot support seven day trading economically. In Warwick, the existing Sunday traders include newsagents, bakers, six corner stores, a supermarket, three hardware stores, three motor accessories service stations with general store facilities and numerous fast food outlets. These stores cater for the travelling public/tourists and the local population. Most families in the area use Saturday afternoon and Sundays for recreational activity. According to Mr Newey, market domination eventually leads to increases in prices and a reduction of service to customers. Along with the drought in the area, the introduction of Sunday trading could just be the straw that breaks the camel’s back. Mr Newey advised the Bench that the number of store vacancies in Warwick has increased over the years and he attributed this to the new shopping centre and the effects of the drought. If stores are to trade over seven instead of six days per week the result will be that sales will be reduced on Monday, Friday and Saturday to account for any increased trade on Sundays. The introduction of Sunday trading for the majors will mean that small convenience stores in the town will close. Mr Newey said that he was unaware of any person in the town who would like to work on Sundays. Mr Newey said that Friday was the traditional shopping day for farmers in the area.
[141] Ian Pettiford: Mr Pettiford is the Owner of Westside Supermarket, Warwick. Mr Pettiford’s best trading day is Sunday. The nearest shopping Centre is Rose City Shopping Centre which is about three kilometres away, where Woolworths and Bi-Lo are located. Mr Pettiford stated that he will lose 15% of total turnover and will work additional hours if Sunday trading is introduced. His overheads will be the same for a drop in sales and he will have no option but to reduce staff to compensate. Mr Pettiford said that he was only given seven days to pay for deliveries of stock from his supplier. There will be less full-time positions and more casuals and part- time jobs. The major retailers have invested in every aspect of retail imaginable with hair products, bread, newspapers, liquor stores, petrol stations and non-food retailing. One of the only safe havens provided to the independents is trading hours. If this safe haven is given away the major retailers will take the remaining 20% market share. According to Mr Pettiford, market domination is not good. Increased trading hours may force the closure of some small businesses. He is required to pay for deliveries within seven days. The only advantage his store has is Sunday trading.
[142] Dianna Smith: Ms Smith owns two stores in Warwick, Warwick Heating and Cooling which is located directly opposite Rose City Shopping Centre and Downs Heating, Cooling and Outdoors which is 200 metres from Rose
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City. Extension of trading hours in Warwick is not viable as the population and available disposable income is less than other rural towns such as Toowoomba. Toowoomba has more disposable income due to the large size of the farms and better job opportunities in comparison with Warwick. Most of the farms in Warwick are only about 250 ha. While those farms may have supported two families 20 to 40 years ago they struggle to support even one family today.
(xix) QRTSA Witness – Stanthorpe
[143] John Giannake: Mr Giannake is the President of Stanthorpe Chamber of Commerce which objects to the introduction of Sunday trading. The extension to trading hours would have an adverse effect on a number of small businesses in the rural community. This adverse effect would far outweigh any perceived benefits such as the convenience for individuals being able to shop in supermarkets on Sundays. Currently most local businesses can make their decision on trading hours based on their own criteria including individual, family and lifestyle issues and profitability. Some small businesses currently trading on Sundays would be forced to close due to decreased turnover, thus adversely affecting the country town character and families. While the community relies heavily on tourism, tourists do not go there to do their grocery shopping. If the application is granted Mr Giannake believes that the main benefactors will be large supermarkets and other large retailers and this would be at the expense of smaller retail businesses. According to Mr Giannake, the NRA has not adequately proved a need for extended trading hours.
[144] Under cross-examination, Mr Giannake agreed that one of his concerns in opposing Sunday trading related to the tourist attributes of the Stanthorpe District and that if Woolworths in Stanthorpe was open on Sundays, it would not damage the tourist trade. Mr Giannake also said that the decision to oppose Sunday trading had been taken by the Stanthorpe Chamber of Commerce following a meeting of its executive. The Chamber of Commerce had not been aware of the views of the Southern Downs Tourist Association when it made its decision.
[145] That Chamber meeting had considered correspondence from the QRTSA, and had also put that correspondence to members. The Chamber had received a lot of feedback from members, and Mr Giannake had initiated discussions by telephoning and visiting retailers to obtain their views. Mr Giannake had not recorded the views which had been expressed to him on paper. The Chamber had not sought the views of the NRA before determining its opposition to Sunday trading. Mr Giannake said that the small businesses which would be adversely affected by Sunday trading were convenience stores, a bakery and an independent grocer. Mr Giannake said that his own business traded on Sundays and was closed on Mondays, and agreed that retailers currently trading on Sundays in Stanthorpe did so by choice.
[146] In relation to his statement that there was no demand for major retailers to trade on Sundays in Stanthorpe, Mr Giannake said that he had formed this view based on his discussions with other small retailers and with his own customers.
(xx) QRTSA Witnesses – Dalby
[147] Nicole Simpson: Ms Simpson is the Store Manager of Dalby Foodworks which is operated by the Western Downs Co-op. The Co-op also has a store in Tara. Within one kilometre, there are two Shopping Centres with a Coles and Woolworths in each. Ms Simpson believes there will be a downturn in business of approximately 15% whilst overheads would remain the same if trading hours were to be extended. Ms Simpson expects a loss of $520,000 per annum which could see the business become unprofitable. There are five independent grocery stores in Dalby, currently trading Sundays, which would be affected. Seven day trading would have the effect of smaller towns losing trade to larger centres. Toowoomba would affect Dalby and Dalby would affect towns like Tara, Chinchilla, Jandowae, Cecil Plains and Bell. Two full-time positions would have to be cut from her operations. Quality time spent with the family will be reduced. In the late 1990s, Franklins/Woolworths came to town causing the closure of a family owned supermarket. When the major retailers have opened prior to Christmas she has noticed that turnover had halved during those periods. If this were to be replicated with the introduction of seven day trading then it would run many out of business. The Co-operative has 2,000 shareholders. As a co-operative, profits are distributed to local shareholders and capital reinvestment is made in Dalby and Tara. Over the past ten years the co-operative has invested over $1,000,000.00 to improve the quality of shopping in this small rural town. Ms Simpson maintained that the grant of the NRA application would be contrary to the public interest in Dalby and surrounding areas.
[148] In response to a proposition that in terms of any losses arising from Sunday trading by major retailers that the “proof of the pudding would be in the eating”, Ms Simpson said that businesses such as the Co-op should not have to be guinea pigs and that losses such as those she had estimated would run the Co-op out of business. Ms Simpson also said that while no-one could say with absolute accuracy what the projected losses for her business as a result of Sunday trading by major retailers would be, an educated guess could be made on the basis of the Sundays prior to Christmas in 2004 when major retailers had traded.
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[149] The proposition was put to Ms Simpson that the Co-op had enjoyed an advantage over the seven years it had traded because major retailers had been unable to open on Sundays. In response to that proposition Ms Simpson said that overall major retailers had greater advantage, and that if small retailers were to survive, they needed to have “this little tiny piece of one day a week that we can trade without having to compete for a market share”. Ms Simpson also pointed out that any advantage that the Co-op had received had been passed on to the communities in which it operated. In response to the proposition that Foodworks stores in other States traded in a fully competitive environment, Ms Simpson pointed out that there were less restrictions in those States and in particular those stores were able to sell liquor.
[150] In response to questions about her disenchantment with shopping centres, Ms Simpson said that there was a major development currently underway in the main street of Dalby where a number of franchises and a Big W were to operate.
[151] Lyndon Pelly: Mr Pelly is the Owner/Manager of Dalby Southside Foodmarket. The nearest shopping centre to his operation is Dalby Central Shopping Centre, including a Woolworths store which is about half a kilometre away. If Sunday trading were to be introduced there will be a downturn of approximately 25% on Sundays in his business and he will be working an additional 20 hours per week. Extended trading will create pressure on present wage rates and employee working hours. If the financial burden on small business increases further, there will not be a market for small business and his investment will be worthless. The majority of the local workforce does not have a problem doing their shopping within the present trading hours. Market domination, according to Mr Pelly, is not good. The buying power of the major retailers is such that negotiating a realistic price from suppliers for small businesses to remain competitive is almost impossible. In the past, weekend trading was the opportunity for the independents to maintain a healthy gross profit margin. After the introduction of late night trading and Saturday afternoon trading, the business has not been able to maintain its previous gross profit margin and will be in serious trouble if trading hours are further extended. It is Mr Pelly’s view that without the independents, the chains will be able to set any pricing they like. The major loser is going to be the public. Mr Pelly indicated that he was required to pay his suppliers within nine days unlike the majors who were given a greater timeframe.
(xxi) QRTSA Witness – Gin Gin
[152] Nancy Wills: Ms Wills is the owner of Wills General Store and the Gin Gin Newsagency which predominantly sells food. Ms Wills believes that if this application is granted her store will be affected by a down turn in business of approximately 25%, there would be a lower turnover and the value of the business will be down by approximately 20%. Ms Wills is opposed to Sunday trading because Gin Gin is only fifty kilometres from Bundaberg and everyone would go shopping there for a day out instead of purchasing items from her business. Her store employs one full-time and eighteen casuals. Ms Wills sees the playing field as becoming increasingly unfair for independents. According to Ms Wills, trading hours is the only area of a larger playing field where the independents have some equity in the scheme of things.
(xxii) QRTSA Witness – Nambour
[153] Timothy Smith: Mr Smith is the owner of Nambour Bag Shop and he is a member of the Nambour Chamber of Commerce. The nearest shopping centre to his store is the Nambour Plaza which is five hundred metres away. He believes that should the application be granted, there will be a downturn in business of approximately 10%, he will be working an additional fifteen hours per week, there will be an increase in overheads and wages and the value of the business will be reduced dramatically. Mr Smith does not believe that Sunday trading is the solution to attracting tourists to Nambour. At a meeting of the Nambour Chamber of Commerce, the NRA informed members that Sunday trading would replace Thursday evenings. Mr Smith is the Events Co- coordinator on the Executive of the Chamber of Commerce.
(xxiii) QRTSA Witnesses – Brisbane
[154] Phillip Scarff: Mr Scarff is the Managing Director of Retravision (Queensland) Limited which is the largest retailer of electrical goods in Queensland. Each Retravision store is operated as an independent retailer. Retravision has 94 members who have 140 shop fronts employing over 1,000 staff with a turnover exceeding $400,000,000 at retail. Some stores are in the Northern Territory and Northern New South Wales. The Retravision Group has forty shop fronts that would be directly affected by this application for Sunday trading. On behalf of its members, Retravision Queensland strongly opposes the application. The reason why the application is opposed is due to the fact that many of the predictions made in the South-East Queensland case were realised when the ramifications of the decision itself and the State Government’s extension of the decision were felt by members of the group. Generally the Retravision stores are family owned businesses. A significant number of members in the affected area in 2001 ended up cutting back staff, losing sales and working more hours away from their families. This is contrary to the NRA’s perception that by opening on a Sunday, this will
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have a flow on effect of more employment, more sales and more profit. Mr Scarff does not believe employment opportunities will be increased. Members have lost quality employees to work rostered hours across weekends. Casual employees do not have the specific training required to enable the salesperson to have sound product knowledge. Mr Scarff’s view is that customers have the right to be served by people who know what they are talking about. Sunday trading does not mean more sales, but the same sales spread over more days at a greater cost per sale. The move for extended trading hours is being driven by vested interests in property, particularly shopping centres. The aim, according to Mr Scarff, is not the noble one of more employment or the public interest – Retravision says it is a grab for market share by large retailers. Mr Scarff is of the view that Sunday trading will mean an exodus of consumers on the weekend from small country towns such as Oakey, Warwick, Crows Nest, Pittsworth and Gatton to Toowoomba so they can shop on Sundays.
[155] Grant Somerville: Mr Sommerville is the Training Manager of Australian United Retailers Ltd (AUR) which represents 683 independent retailers throughout Queensland, New South Wales, Victoria and Northern Territory. The current application is opposed in its entirety. Mr Sommerville is a member of the Executive Committee of the QRTSA and authorised to present the results from a survey conducted during January 2005 in relation to this application. The QRTSA has over 2700 members in Queensland, New South Wales and the Northern Territory. The members range in size from very small stores with no staff to large chain stores with over 200 staff. The QRTSA has approximately 329 members within the affected area. There is opposition due to the results of the survey where 97.3% of members who returned the survey supported the position of the QRTSA. The QRTSA represents the independent retailers who are most likely to feel any impact of extended hours such as members who currently trade on Sunday and who use this small advantage to effectively compete against the major retailers. The growing stranglehold of Australia’s two largest retailers on the national grocery market is virtually without precedent in the world. The top three retail grocers in the UK have 52% market share, compared to Australia, where the duopoly holds more than 75%. Statistics show that Woolworths and Coles do not sound like the type of retailers who need the added benefit of another day’s trade in Queensland to assist their bottom line. In fact, it should be seen that these are very successful companies who will succeed whether Sunday trading is granted or not. Independent retailers employ a much larger proportion of people on an employee to turnover basis than either Coles or Woolworths.
[156] Peter Wise: Mr Wise is the General Manager of Tasmanian Independent Retailers, which is a trading division of the Tasmanian Independent Retailers Co-operative Society Limited. Mr Wise presented a report to the Commission on the impact of Sunday trading during the first two and a-half years in Tasmania. The Report summary is as follows:
“Since December 2002, Tasmania has had one of the most deregulated shop trading hours regimes in Australia, which has seen a further concentration of major chain dominance in the retail grocery sector.
Prior to deregulation, Coles and Woolworths held some 80 per cent of the retail grocery market and evidence would suggest this figure is now above 85 per cent, with the market still coming to grips with the major structural change, some two-and-a-half-years later.
A survey of the retail grocery operations in existence prior to December 2002 compared with 2005 reveals a 12.46% reduction in the number of stores advertising in the Yellow Pages. In contrast ABS figures reveal a 22.24% increase in food retail turnover, revealing that while the Tasmanian economy has experienced healthy growth in recent years, there has been a significant reduction in the number of retail stores enjoying the benefits of a booming local economy.
As a retail grocery co-operative, Tasmanian Independent Retailers has seen 15 member stores close their doors, representing 11 per cent of membership. Some members have lost their life savings, now owning worthless stores which they are unable to sell, while others are simply fading quietly into the night deciding to no longer trade.
In recent times the major chains have moved into petrol retailing, this has seen fuel prices at unprecedented levels, some 14 cents p/litre higher in Hobart than Melbourne.
An independent telephone poll of 1000 Tasmanian consumers has revealed high levels of concern with regard to the impact of open slather trading and an acknowledgment that unfettered trade cannot continue if there is to be viable competition in the market place.
In response to this onslaught TIR, has aggressively fought back and while the battle is far from over, the Tasmanian situation is a clear bellwether to the rest of the nation, pointing to the significant impacts of unfettered trade in the market place.”.
[157] Brian Cox: Mr Cox is the Director of the Hairdressing Federation of Queensland which organisation opposes the application by the NRA. Mr Cox spoke about core trading hours and how a number of salon owners have
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been or are being pushed into leases which include Sunday trading as part of their core trading hours. Mr Cox also spoke of the loss of turnover due to the loss of sale of hair products to the major supermarkets.
[158] Andrew Young: Mr Young is the Chief Executive Officer of The Queensland Chamber of Fruit & Vegetables Industries Co-operative (Union of Employers) Limited trading as Brismark. That organisation represents 52 member wholesalers in the Brisbane Markets and approximately 400 Credit Service Buyers, mainly independent fruit and vegetable retailers. In addition, there are up to an estimated 300 independent retailers in rural and regional areas of Queensland being served by secondary wholesalers which also source a substantial amount of their product through the Brisbane Markets. The organisation estimates that up to 70% of its members and up to 100 independent fruit and vegetable retailers and secondary wholesalers would be directly affected by the proposal. Mr Young forecasts a subsequent loss of trade for these traders should this application be successful. The organisation strongly opposes the application.
[159] Ken Murphy: Mr Murphy is the Chief Executive Director of Queensland Newsagents Federation Ltd and there are 330 members located in the area affected by this application. In the past ten years, the major retailers have diversified the product range available in supermarkets to the point that it now encroaches on services provided by a wide range of businesses including newsagencies. According to Mr Murphy the long term survival and economic wellbeing of the retail sector does not lie in the ability of just the major retailers being able to provide contemporary retail shopping to customers but also in the ability of other retailers such as newsagents to service customer demand. If seven day trading were to be granted, there might not be enough sales for newsagent owners to generate profits and there will be a redistribution of trading patterns. Members located outside shopping centres, who mainly trade on Sundays, would lose income to the majors who would be able to take advantage of newspaper and magazine sales that would be achieved by the newsagency. According to Mr Murphy many members see this application as a threat to their continued business success and lifestyle.
[160] Wayne Mason: Mr Mason is the Chief Executive Officer of United Star Supermarkets Limited, a grocery retail buying group trading under two brands, SPAR and 5 Star. The group has about fifteen supermarkets in the affected area. Each store is an owner-operated business and each represents the owner’s superannuation investment as well as their family legacy. In the last fifteen years, Mr Mason has been able to work with retailers from Victoria, New South Wales, ACT, Queensland and the Northern Territory. During this time, he has seen the growth of the corporate retail sector and the decline of the independents (small business) due to a number of factors. Mr Mason has seen the emergence of chain stores and the ways in which they are able to work around legislative changes to gain a competitive advantage. This is occurring in extension of trading hours, liquor, fuel and is about to happen in tobacco and pharmacy. According to Mr Mason, the decision by the 1998 Select Committee Inquiry into the Retail Sector got it wrong, as did the ACCC’s subsequent decision that there was no monopoly in the grocery industry because of the failure by governments and its agents to recognise a number of important facts about the Australian domestic retail markets. The retail industry is polarized into two distinct sectors: corporate retail and the independents. The corporate retail sector has an 85% market share. The failure by governments to support the independent retailers leaves small business in the wilderness. Restrictive legislation preventing small business from selling liquor and now further restricting sale of tobacco products removes the concept of a “level playing field” and prevents small business from competing with big business. On the other hand the State Government is deregulating trading hours to open up markets. Small business is an important industry sector because it is a major employer in Queensland and it is an important part of regional and rural Australian communities. Consumers will not buy any more products than they do at present. According to Mr Mason, the change to trading hours only shifts market share from one industry sector to another. The argument that is used in favour of deregulation of trading hours should also apply to deregulation of liquor laws and other restrictions. United Star Supermarkets Limited is opposed to any further extension of trading hours for non-exempt stores because of the significant impact on small business in the area and the wider impact on the retail sector given the market power of the corporate retailers. Each member store, on average, employs three staff, not including the working owners which generally encompass a husband and wife team.
[161] Each of these small businesses is an important part of the owner’s superannuation fund and their legacy to their children. If the application for Sunday trading is granted, all of these jobs, particularly in rural areas, are placed in jeopardy and there will be a major impact on the ability of small business operators to fund their own retirement and to assist their children in becoming financially independent as well. When trading hours were extended previously, in 1994 and 1997, an immediate downturn in business occurred in the independent sector. Stores in the group reported falls of between 10% and 60% of sales turnover. Mr Mason says that there is also an enormous flow on effect to other businesses that rely on trade with the group’s stores. Local milk vendors, bread vendors, fruit and vegetable growers, butchers and bakers are among the many that rely on their income from supplying small stores. Corporate retailers purchase very little of their product from the communities in which they operate their stores. Other areas not readily recognised as being affected include: tradespersons (electricians, refrigeration mechanics, carpenters, pest control operators, cleaners); the professionals (solicitors, accountants, insurance Agents); real estate owners and wholesalers. All in the independent industry rely on the hours that the large stores are closed to provide small business operators with a sales return sufficient to enable
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them to pay fixed costs. Sunday is a small advantage that is relatively miniscule in the overall market place, but sufficient to allow the existence of this important sector. United Star Supermarkets Limited does not believe extended trading hours are in the public interest for reasons including the following: small business peoples’ livelihoods are at risk; it affects families’ ability to fund their own retirement; it reduces the opportunity for employment in family owned businesses for generations; family quality time is reduced and extra pressure on relationships contributes to family breakdown; the flow on effect to other businesses is significant; the economic health of Queensland is adversely affected; the opportunity to foster entrepreneurship is greatly subdued; and the small business sector is closer to market failure.
[162] Stephen Erbacher: Mr Erbacher is the Senior Business Manager of Independent Grocers of Australia Distribution. There are three retail formats within the organisation i.e. Supa IGA, IGA and IGA X-press. Each, according to Mr Erbacher, appeals to different shopping habits. Every store is 100% independently owned. In the area the subject of this application, there are seven Supa IGA stores and eighteen IGA stores operating. The application is opposed in its entirety. According to Mr Erbacher the local independents recycle their turnover in many forms via contracting the services of local tradesmen, logistic operators, accountants, solicitors, financial advisers and purchasing produce from local operators. The majors relocate their profits interstate. Small business is a vital part of the country’s economy and is Australia’s largest employer. Before a shopping centre is built, the developer, owner and any major is perfectly aware of the limitation on trading hours. The investment made by independent retailers normally constitutes their superannuation savings. The majors have controlling stakes in over 80% of the retail food sector as well as the petrol industry, liquor chains and soon they will have such controlling stakes in pharmacies. The supporters of Sunday trading claim it is inequitable to have one set of rules for some retailers and another set of rules for others in relation to trading hours. However, Coles may have a supermarket located in a centre and also own a liquor store located in a convenient spot as you leave the centre. On the other hand, regulations prevent independent retailers from being able to sell alcohol. Mr Mason made the point that IGA retailers interstate can sell liquor. Sunday trading is one of the only opportunities available for independent retailers to compete with the majors.
(xxiv) QRTSA Witness – Expert
[163] Dr Robert Baker: Dr Baker is a Senior Lecturer in Geography and Planning, University of New England, Armidale, New South Wales. Dr Baker presented a Report on “The Impact of Deregulated Shopping Hours on the Viability and Vitality of Town Centres”. Dr Baker is also a partner of Centrepak Research. The Executive Summary to Dr Baker’s Report makes the following points:
the current evidence supports Dr Baker’s conclusions made a decade ago in the academic literature, namely, that there are significant accrued advantages to large retailers and planned shopping centres of changing the length and structure of the shopping week (Baker, 1994) and secondly, trading hours deregulation encourages retail developments to locate away from town centres undermining their viability and the profitability of small business (Baker, 1995). Dr Baker’s position has not changed and subsequent research supports these conclusions (for example, Baker, 2002, 2004, 2005);
there has been a radical re-structuring of the shopping week. Dr Baker’s basic thesis remains that the deregulation of shopping hours has changed “when” and “where” consumers shop over the week. His retail research funded by the Australian Research Council shows how the addition of Sunday trading restructures demand over the week towards weekend trading and concentrates demand in planned shopping centres and supermarkets at the expense of other retail centres. There is a substantial loss of trade on Mondays and Tuesdays and a dramatic shift in demand towards the weekend. Consumers will more likely travel to major anchors located out-of-town or away from main city or town streets to the detriment of small business in-town or in the main streets. The result is a loss of small business viability, increased business closures and a further casualisation of the retail workforce. These are a direct consequence of trading hour deregulation;
the conclusion is that deregulating shopping hours is a blunt instrument to provide convenience to “time- poor” consumers. There are other alternatives, such as, on-line shopping, that can satisfy such households on a “user-pays” basis without the negative externalities produced by shopping time deregulation (Baker, 2001, 2003). In the area encompassed by the current application, 15.2% of the population had used the internet at home the previous week to the 2001 Census. This is the way to increase the amenity to working families through the ability to do their shopping on the internet for extended periods during the week. Consumers are happy to use ATMs on Sunday when banks are closed, why is this not possible for on-line shopping?
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Dr Baker states that his conclusions are supported by primary evidence obtained from shopping centres in Sydney, Canberra, Auckland, Armidale; case studies in the UK and in regional NSW; evidence from the Property Council of Australia and internet studies. For example, the average vacancy rate in a number of case studies in regional NSW was between 10 and 20% in 2003 and a number of centres had deteriorated since that survey;
there are serious structural problems for the viability of small business in the town centres of Maitland, Dubbo, Cessnock, Kempsey, Mayfield and Gunnedah with other centres a cause for concern (Tamworth, Taree, Inverell, Grafton, Orange and Coffs Harbour);
evidence from the Property Council of Australia highlighted the loss of clothing turnover from in-town small business to out-of-town shopping centres trading on Sundays;
some major retailers had restricted Sunday hours (Myer) or remained closed on Sundays (Country Target) in some towns in regional NSW, despite the opportunity to trade from 9.00 a.m. to 5.00 p.m. on Sundays;
Dr Baker raised questions concerning the reliability of the quota consumer surveys conducted by Enhance Management. Dr Baker’s view is that the best method of gauging consumer support or otherwise is via a referendum. This is what occurred in Western Australia this year with a referendum being conducted on extended hours and Sunday trading for non-exempt stores. The results of the recent referendum in Western Australia surprised the pro-deregulation lobby. The first question asked in that referendum was: Do you believe that the Western Australian community would benefit if trading hours in the Perth Metropolitan area were extended to allow general retail shops to trade until 9.00 p.m. Monday to Friday? The results stated that 58.7% of voters rejected general shops opening until 9.00 p.m. Monday to Friday in the Perth Metropolitan Area. The second question asked was: Do you believe that the Western Australian community would benefit if trading hours in the Perth Metropolitan Area were extended to allow general retail shops to trade for 6 hours on Sunday? The result was that 61.4% rejected Sunday trading for non-exempt shops in the Perth Metropolitan Area;
only five electoral districts out of fifty-seven had a majority of voters wanting extended hours during the week (Central Kimberley, Kimberly, Murchison-Eyre, Peel and Perth), but Central Kimberly, Kimberly and Peel were the only districts who wanted Sunday trading for six hours on Sundays. Even in the Perth Electoral District, voters who would supposedly benefit from Sunday trading of the major chains, rejected the proposition; and
Dr Baker’s conclusion is that there is insufficient evidence to support the deregulation of shopping hours. It has too many externalities detrimental to the viability of in-town retailers and therefore undermines the identity of the towns. There are other options available that should be encouraged to assist “time-poor” households shopping.
NRA Submission
[164] The NRA’s basic position is that seven day trading is now a fact of life for 85% of all Australians including:
all of Tasmania; all of Victoria; all of Northern Territory; all of Australian Capital Territory; the great majority (if not all) of New South Wales; all of South-East Queensland (as currently defined) and the tourist areas of Queensland; Adelaide and many parts of regional South Australia (subject to local government applications and ministerial approval); and the central business district of Perth, Western Australia tourist areas and some local government areas of Western Australia.
[165] It is said that the only significant remaining sector of the Australian community to be denied access to Sunday trading are the regional Queensland populations.
[166] Tasmania: Since December 2002 trading hours in Tasmania have been deregulated and trading is unrestricted except for Christmas Day, Good Friday and Anzac Day before 1.00 p.m. The deregulation of trading hours was introduced via legislation and it provided for local governments to opt out of seven day trading under prescribed conditions.
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[167] Victoria: Since December 1996 all retail stores in Victoria have been able to trade on an unrestricted basis except on Christmas Day, Good Friday, Anzac Day before 1.00 p.m. and Easter Sunday. Once again the deregulation of trading hours was introduced via legislation which provided for a process whereby local governments could effectively reverse the decision to deregulate within their own municipality. That process was utilised in the Bendigo local authority area where a referendum on trading hours was undertaken in 1998. The outcome of that referendum was that the population of Bendigo supported the continuation of Sunday trading.
[168] Northern Territory and Australian Capital Territory: Trading hours in both Territories have been deregulated for some time. However in the Australian Capital Territory in 1996 the ACT government decided to place restrictions on the trading hours of chain supermarkets in town centres forcing these stores to close earlier than smaller traders on each day. That decision was however reversed in June 1997 by the ACT government on the basis of public dissatisfaction.
[169] New South Wales: In New South Wales “general” shops are able to trade in an unrestricted fashion on any day except Sundays and public holidays unless an exemption or a suspension order has been secured. Applications for exemptions are made to the Director-General of the NSW Department of Industrial Relations. As a result of this process seven day trading has been progressively introduced to almost all regional towns and cities in New South Wales.
[170] South Australia: Under the South Australian legislation all regional communities in that State can choose to deregulate their trading hours so long as the local authority can demonstrate community support for such a move. As a result of this process many regional communities in South Australia have decided to move to unrestricted trading hours.
[171] Western Australia: In Western Australia seven day trading is allowed in the Perth CBD, in tourist precincts and in local government areas where a ministerial exemption has been granted. There are no trading hours restrictions for communities located north of the 26th parallel. The NRA submits that no significant weight should be given to the fact that in 2005 a referendum of Western Australian voters was taken, the outcome of which was to reject Sunday trading in Perth outside the CBD. The reason why no or little weight should be attached to the outcome of the referendum is that populations in regional communities where they could already trade on Sundays were casting a vote on whether Perth retailers could trade on Sundays. The NRA concedes that the public were provided with extensive advertising both for and against extending trading on Sundays.
[172] South-East Queensland: This area gained seven day trading as a result of a decision of this Commission in the South-East Queensland Case together with an extension of the area introduced via legislation enacted by the Queensland Government in 2002.
[173] Queensland Tourist Areas: These areas within Queensland are able to trade on seven days and have achieved this outcome via various decisions of the Queensland Industrial Relations Commission.
[174] The NRA also submits that small business in regional Queensland have been on notice for some time that Sunday trading in the area was inevitable. In this regard the NRA relies on the 1996 Knox Inquiry into trading hours, the 1998 South-East Corridor Case, the granting of Sunday trading to hardware stores in 2001 by the Commission and the further decision of the Commission in the South-East Queensland Case in 2001. The NRA submits that the evolutionary and incremental approach of the Commission is not offended by the current application.
[175] The NRA accepts that the independent food shops would be affected by the granting of this application. The NRA disputes the extent to which they are likely to be affected.
[176] The support for the application from the NRA is based on the following:
(i) Prevention of Escape Expenditure from Regional Towns: The NRA submit that the introduction of seven day trading in the region covered by the application would prevent escape expenditure from regional towns and cities and the consequential transfer of job opportunities from regional centres to Brisbane and the adjoining areas in the Queensland south-east corner. The NRA sees this loss of jobs as constituting a serious detriment to local economies and that reduced job opportunities in retail inevitably leads to fewer jobs for the youth of the area. The NRA contends that the retail industry is the largest employing industry in Queensland and in Australia with the industry employing 16.04% of the Queensland workforce.
(ii) Investment Capital: It is submitted that seven day trading will enable regional Queensland to compete on a level playing field for investment capital. The NRA contend that investors are not going to invest funds in regional Queensland if the rate of return is inferior to that which can be secured in other regional
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areas of Australia which enjoy seven day trading. In this regard the NRA relies particularly on the evidence of Mr Brindle of the Queensland Investment Corporation.
(iii) Capital Utilisation: It is argued that seven day trading is needed to ensure a more efficient utilisation of capital in the retail sector. The NRA submits that shopping centres have become a vital part of the modern community because they offer the community convenience, comfort, choice and value. The NRA suggests that it is illogical that shopping centre facilities cannot be accessed on seven days of the week. For the shopping centre owner their asset is under utilised, their market cannot be fully serviced, they are precluded from competing for the Sunday dollar and there is a diminished return on investment results.
(iv) Long Term Survival and Economic Wellbeing of the Retail Sector: The NRA submit that the granting of the application will ensure the long term economic well being of the retail sector. No longer can contemporary retail be characterised as needs based shopping. The NRA contends that retail has for many years been focused on leisure, recreational and entertainment elements. As such retail competes directly with sport, hospitality, gaming and entertainment venues. These all trade over seven days and over much longer daily hours than the retail industry. The NRA submit that the retail sector has experienced a reduction in the share of disposable income directed to food and non-food retailing by Australians since the mid 1980’s of 5%. The fact that some shopping centres are not permitted to open on Sundays means that they are unable to compete with these alternative attractors of consumer spending.
(v) Consumers: To effectively cater for the changing needs and shopping patterns of consumers the NRA argue that trading hours in regional Queensland needs to be extended to include Sunday trading. The NRA suggest that customer surveys on the issue of Sunday trading, wherever they have been undertaken throughout Australia, consistently show that approximately 70% of Australian shoppers are in favour of Sunday trading.
(vi) Expansion of the Local Community: The NRA submits that seven day trading will stimulate economic growth and improve profitability through increased sales and increased employment. Further additional turnover in the retail sector will generate significant multiplier effects throughout the economy. The retail sector is a labour intensive and supplier intensive industry. The retail industry thus provides substantial leverage for the generation of additional economic activity through other sectors of the economy.
(vii) Tourism: The NRA submits that the contribution of tourism to the Queensland economy of 6.2% of gross State product exceeds the Australian contribution of 4.5%. It is said that shopping expenditure accounts for $2.2 billion or 15% of total visitor expenditure in Queensland. Whilst the area the subject of this application is not an established tourist area, the NRA contends that tourism still makes a very important contribution to many local economies. Seven day trading will optimise the tourist spend particularly in areas where the length of stay is short and when the stay includes a Sunday.
[177] On the issue of the legislation’s requirement that the Commission consider the views of local authorities, the NRA submit that for those views to be considered persons representing those local authorities should give evidence.
[178] Section 31B(7) of the Act provides that for the south-east Queensland area (as defined in the Act) the permissible trading hours on a Sunday or public holiday are not allowable trading hours for the definition of “core trading hours” in the Retail Shop Leases Act 1994. This means that a shopping centre owner or manager cannot make tenants open on Sundays in the South-East Queensland area. The NRA concedes that whilst its position on trading on Sundays should this application be granted is that trading would be up to the particular trader, the legislation does not deal with extensions to Sunday trading beyond the South-East Queensland area as that area is defined in the legislation. This means that if this application was to be granted a shopping centre owner or manager could not be prevented from forcing a tenant to trade on Sundays. It is noted however that the Full Bench in the 2001 South-East Queensland Case dealt with this issue in a particular manner.
SDA Submission
[179] The SDA negotiated with the NRA and reached a compromise with the NRA which resulted in the NRA seeking a different outcome in this proceeding to the claim outlined in the application which was filed on 1 October 2004. The outcome of those negotiations is found in Exhibit 5 in the proceeding. The SDA acknowledged that in some regions under consideration there was no groundswell of public support for the application. The SDA also pointed to the evidence given by a number of witnesses opposing the application that their businesses would remain viable even with the introduction of Sunday trading.
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QRTSA Submission
[180] The QRTSA made extensive written and oral submissions. In summary the QRTSA position is that the Queensland Industrial Relations Commission bears the onus of deciding, not regulating, trading hours under the Act. The current application seeks deregulated Sunday trading hours of 10.00 a.m. to 5.00 p.m. for Regional Queensland (Southern & Eastern) as outlined in the application, for non-exempt shops as defined in the Act. The QRTSA is opposed to the application in its entirety.
[181] The power in s. 21 of the Act is a discretionary one and before deciding on the NRA application an analysis must take place of those arguments presented by the NRA and those organisations given a right to be heard, against the factors set out in paragraphs (a) to (i) of section 26 of the Act. The QRTSA contend that the NRA has not proven its case to the degree necessary for this Commission to grant extended Sunday trading hours to the current area. In the matter before the Commission, the NRA has presented an “all or nothing” case.
[182] The QRTSA submitted that by virtue of s. 43(4) of the Act and s. 320(2)(b) of the Industrial Relations Act 1999, the Commission “may inform itself on a matter it considers appropriate in the exercise of its jurisdiction”. It may therefore take into account evidence previously submitted in matters relating to the extension of trading hours generally, and Sunday trading hours in particular.
[183] The QRTSA contends that the Commission has not, in the past, authorised itself to hide behind surveys or polls. This was the clear message from the Commission in the South-East Queensland Corridor Case (159 QGIG 310), and the South-East Queensland Case (169 QGIG 48). The QTRSA submit that the evidence led by certain witnesses, qualitative research in particular, was only presented on the basis of a favourable view of the information available, and has been written in such a way as to assist the NRA’s case.
[184] Whilst purporting to be for the benefit of the retail industry in the applicable area, the QRTSA contends that the application, if successful, will in fact, only benefit the non-exempt shops such as Myer and others, and to a greater degree certain non-exempt supermarkets, specifically Coles and Woolworths. The QRTSA argues that the Act, in s. 26(e), requires the Commission to have regard to “business interest (whether small, medium or large)”. In discharging this obligation, the Commission must do so in a balanced way.
[185] The QRTSA submit that small business is the largest employer in this State, and retail is the biggest industry in this State. To decide in favour of the application will affect thousands of independent businesses and may result in increased unemployment.
[186] The QRTSA contends that the additional jobs to be created by the non-exempt shops will be nothing more than minimal hours casual jobs, with no long-term security, or simply an expansion of hours for existing employees. As a number of witnesses suggested, there may simply be a transfer of labour from small to large business, maintaining at best a status quo.
[187] The QRTSA submits that the NRA has completely failed to demonstrate to the degree necessary, that their proposition sufficiently meets the factors outlined in s. 26 of the Act to warrant the grant of the application.
History of Trading Hours Legislation
[188] The Factories and Shops Act 1900 first regulated trading hours in Queensland. In the Second Reading Speech to the Bill, the Home Secretary, in dealing with the trading hours restrictions part of the Bill, referred to the wellbeing of the employees who might have been working excessive hours and also that of the employers (Hansard – 19.11.1900 at page 1957). The Home Secretary said he was also concerned with “one man shops”. In his Second Reading Speech to the Legislative Assembly on 18 December 1901 to a Bill providing for certain amendments, the Home Secretary revealed what troubled the decision makers in those times in Hansard at p. 2604:
“Whichever way you look at the question, there are bound to be anomalies and injustices. … The question necessarily arises, what is the best course to pursue with regard to the employees - … At all events the financial welfare of men who have invested the whole of their capital, large or small, in ventures should be considered, and it is a question whether they should be compelled to close on that very night when they relied on that night for making most of their profits.”.
[189] Even in 1900, there were exempted shops as there were in 1990 and as there are in 2005. They included chemists, druggists, confectioners, fish and oyster shops, fruit and vegetable shops, temperance beverage shops, hairdressers, restaurants, refreshment shops, tobacconists, booksellers, newsagents, undertakers and licensed public-houses and wine sellers. The Factories and Shops Act 1896 which limited the hours of employees’ work also contained a list of exempted shops.
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[190] In the Second Reading Speech to the Trading Hours Bill in 1990, the Honourable the Minister for Employment, Training and Industrial Relations said, (Hansard 17.5.1990 p. 1652):
“An exempt shop will have no trading restrictions, as at present. An independent retail shop will have the same meaning assigned to it as at present except for two important amendments. Those amendments are provided to prevent occupiers of non-exempt shops leasing their premises to others outside of lawful trading hours to form independent retail shops and subdividing their premises into a series of independent retail shops. Both of those practices are designed to create smaller independent retail shops so as to avoid trading hours restrictions. Such measures are detrimental to small businesses and other large businesses which do not adopt those practices.
These amendments will strengthen the legislation to assist small business.”.
[191] Thus over the years, it can be seen that the welfare of the employees and assistance to small business has always been to the fore and there have always been exempt shops.
[192] The legislation has continued to undergo development. Three provisions of the Trading (Allowable Hours) Act 1990 are now of particular relevance: see Moynihan J in Property Council of Australia and Anor v Queensland Retail Traders and Shopkeepers Association (1999) 161 QGIG 524. They include the objects of the Act, section 21 of the Act and section 26 of the Act. Section 3 sets out the objects which include “(a) to decide the allowable trading hours of shops, other than exempt shops, throughout Queensland”.
[193] Section 21 of the Act provides:
“(1) A Full Bench of the Industrial Commission may decide trading hours for non-exempt shops.
(1A) However, the Full Bench is not to decide trading hours that are less than the following hours on a stated day, other than a public holiday –
(a) 8 a.m. and 9 p.m. for Monday to Friday; (b) 8 a.m. to 5 p.m. for Saturday.
(2) The Full Bench may make any order it considers necessary or convenient to give effect to a decision made under subsection (1), including, for example, an order specifying –
(a) the earliest time when non-exempt shops may open on any day and the latest time when non- exempt shops must close on any day; or (b) hours for trading wholesale different from the hours fixed for trading retail; or (c) different trading hours by reference to –
(i) classes of non-exempt shops; or (ii) localities, or parts of localities, where non-exempt shops are situated.
(3) In subsection (1A) –
‘public holiday’ means –
(a) a public holiday under the Holidays Act 1983; or (b) a day that would have been a public holiday had there not been a substitution under the Holidays Act 1983, section 2(2) or (3) or 3.”.
[194] Section 26 of the Act provides:
“Matters relevant to s 21 order
26. In relation to making an order under section 21 the Industrial Commission must have regard to –
(a) the locality, or part thereof, in which the non-exempt shop or class of non-exempt shop is situated; (b) the needs of the tourist industry or other industry in such locality or part; (c) the needs of an expanding tourist industry; (d) the needs of an expanding population; (e) the public interest, consumers’ interest, and business interest (whether small, medium, or large); (f) the alleviation of traffic congestion; (g) the likely impact of the order on employment; (h) the view of any local government in whose area the order is likely to have an impact; (i) such other matters as the Industrial Commission considers relevant.”.
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[195] (Paragraphs (g) and (h) were inserted by the Trading (Allowable Hours) Amendment Act 2002 which in that respect commenced 1 August 2002).
[196] In a previous “Sunday Trading” application before this Commission in 1998, Property Council of Australia (Queensland Division) and Others v Queensland Retail Traders and Shopkeepers Association (Industrial Organisation of Employers) and Others (South-East Corridor Case) (1998) 159 QGIG 310, a Full Bench said:
“Each case must be determined on its own merits according to its circumstances. However, the Commission has, in deciding applications for an extension of trading hours in the past, reiterated that, to justify an extension of trading hours for non-exempt shops, it must be shown there are ‘special circumstances of a sufficiently significant nature’, that the situation is ‘unique’ or ‘is clearly distinguishable’ from the normal situation.”.
[197] Of this approach, the Industrial Court (Moynihan J) on appeal said at (1999) 161 QGIG 524:
“The consequences of the Order and the Act being as I indicated earlier, not surprisingly the Commission approached the application on the basis that the appellants were obliged to justify an exception from the existing situation which was the general prohibition effected by the Order.
It is again not surprising, and indeed desirable, that the Commission seek to achieve a consistent approach to the requirement that an exception to the general prohibition be made out if non-exempt shops be allowed to trade on Sunday in a specified locality. There is much to be said for the approach. People for example, know where they stand and can regulate their affairs accordingly. The language in which the Commission expressed this approach varied from case to case; ‘special circumstances of a sufficiently significant nature’, that the situation is ‘unique’ or ‘is clearly distinguishable’ from the general situation effected by the Order.”.
Legislative Provisions
[198] The matters to be weighed by the Commission under s. 26 of the Act are:
[199] (i) The locality in which the non-exempt shop or class of non-exempt shop is situated: This application affects regional Queensland. Small country towns depend for their survival on the small businesses which operate within them and they in turn depend for their survival on residents and the community in the surrounding areas supporting them. There is no compelling evidence that there is any demand by the local communities to shop on Sundays: see comments in relation to consumers’ interest and the Enhance Management survey below. The problem with introducing Sunday trading into the major centres such as Toowoomba is that it would then have to be introduced into Warwick, Dalby, Stanthorpe and Chinchilla. In many country centres, there is not even demand for Saturday afternoon opening. The evidence before us is that other than Coles and Woolworths grocery stores, the major retailers are not utilising the trading hours available to them under the Order.
[200] Particularly relevant with regard to the view expressed by the Warwick Shire Council, is the following extract from a decision of this Commission when it dealt with an application for Sunday trading for Hardware Stores in the Mackay area QCCI v QRTSA and Others (1998) 157 QGIG 144, a sentiment with which we respectfully agree and adopt as militating against an approval for Stanthorpe and a refusal for Warwick although we fully appreciate that the provisions of s. 21(2)(c)(ii) authorise such a course:
“The undue fragmentation of trading hours by providing special arrangements for limited areas or cities and for a limited number of non-exempt shops is, in our view, generally inappropriate and overrides any public, consumer or business interest in this particular case.”.
[201] Similar sentiments were echoed in the 1998 South-East Queensland Corridor Case where the Full Bench said that if non-exempt stores were opened in Gatton, it would be difficult to sustain an argument that they should not be opened in Warwick and Kingaroy. Of course, those comments need to be viewed in the light of the additional considerations now required under the current provisions. We have considered these competing arguments in making this decision.
[202] (ii) The needs of the tourist industry or other industry in such locality or part: There has been little evidence addressed to this aspect of the legislation. However, it is clear that probably all communities now generate some income through the tourist dollar. There has been evidence that Nambour is adjacent to a tourist area and that businesses in Nambour are being charged a “tourist levy”. There was also evidence of tourism in the Stanthorpe area with its wine and associated industries. There is however a vast difference between tourism as it affects even major centres such as Toowoomba and Nambour and centres like the Gold Coast and Sunshine Coast where a great percentage of income is generated by the holiday-maker. The towns and cities in
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regional Queensland, the subject of this application, are still “country” areas as opposed to being “tourist” areas and tourism in these areas is not “clearly distinguishable” from the normal situation, or not sufficiently special.
[203] (iii) The needs of an expanding tourist industry: Tourist localities have had their applications dealt with at other times and there appears to be no relevance to this application of the needs of an expanding tourist industry. The remarks made in (ii) above also have some relevance to this aspect of the legislation.
[204] (iv) The needs of an expanding population: No evidence appears to have been placed before to the Commission on this issue.
[205] (v) The public interest, consumer’s interest and business interest, whether small, medium or large: It is to this legislative requirement that much of the evidence before us was directed.
[206] Public Interest: There is no doubt that a grant of this application in an area will adversely affect adjacent communities. Many small communities are already affected with the centralisation of bank operations and Government departments etc. As each family leaves a community, there is less money circulating within that community.
[207] Lifestyle is also an important issue. Permanent staff leave for other employment if there is a possibility of Sunday work. These permanents are replaced by casual staff who need the well paid hours to survive but they are not trained as well as the permanent staff and in many cases, do not have the rapport with their customers. The quality of their advice is often lacking.
[208] Complaints about unfair advantage were made by small business operators presently located in shopping centres which do not open on Sundays. Their decision to invest in the shopping centre site was made at a time when Sunday trading was restricted and that restriction must have been taken into consideration prior to them making the investment. This situation has been recognised by previous decisions of this Commission, lately in (2002) 169 QGIG 48. There is a vast difference between now denying to small business an advantage it has always possessed and providing to other small business an advantage it has never possessed.
[209] There have been other complaints about the “level playing field” emanating from both the major retailers complaining about not being permitted to open on Sundays when their competitors can. Small business complains about the ability of major retailers to buy better, to set up their shops in such a way as to attract their customers (e.g. adjacent liquor stores, poker machines), to obtain better rents, to not pay administrative charges to suppliers of goods and to receive more favourable account terms from suppliers.
[210] There was also evidence that the major retailers already secure substantial advantages over the smaller businesses. Not only are they able to purchase at better prices but there was also evidence that the suppliers to the major retailers extend a longer period of time for payment of accounts. Smaller retailers are required to pay for stock seven to ten days whereas the major retailers are extended some ninety days credit. There is the evidence in relation to the provision of liquor outlets in close proximity, owned whether directly or indirectly by those major retailers thus providing an unfair advantage against independent retailers without the resources to hold liquor licenses. There is evidence that Woolworths is the biggest owner of poker machines whereas the independent retailers do not have the financial ability to diversify and thus gain such advantages.
[211] Consumer Interest: A survey by Dr Haberkern indicated that a majority of consumers say they want Sunday trading. Although the survey established that the majority of consumers may want Sunday trading, this does not equate with need. No arguments for or against were presented to those taking part in the survey and they were not advised of the benefits or ramifications of the introduction of Sunday trading. The vast majority of questions asked of respondents to the survey put a favourable “spin” on Sunday trading, and qualitative issues such as the potential impact of Sunday trading on communities was not presented. A survey in those circumstances must be regarded with some scepticism. Moreover, a referendum held throughout the State in Western Australia on 26 February 2005, after both for and against arguments were presented to the population, resulted in Sunday trading in particular parts of that State being rejected.
[212] There was no evidence of a clamour by consumers for Sunday trading. The evidence revealed little demand for trading beyond the usual 56 hours per week which most stores in the affected area now trade although the major supermarkets do tend to trade 74 hours per week which is close to the current allowable trading hours per week. Further, in view of our comments on the survey we are not satisfied that it represents an accurate view of consumer interest. The major retail stores are currently permitted to trade from 8.00 a.m. to 9.00 p.m. Monday to Saturday, yet the evidence was that many do not trade beyond about 5.30 p.m. or 6.00 p.m. and open later than 8.00 a.m. They do not now take full advantage of the trading hours available to them. The only inference to be drawn is that it is uneconomical (and there is direct evidence of that fact) further indicating that consumers are currently reasonably satisfied with the extent of existing trading hours.
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[213] The Australian Consumers Association (ACA) has given evidence that it is worth bearing in mind that for many people, Friday and Saturday are days of religious significance and for them Sunday trading brings particular and important benefits. It was said that while Sunday remained an important, traditional day for families and for many religious activities in Australia, it was no longer appropriate for Sunday to have specially regulated trading conditions. That depends of course on why Sunday trading restrictions were imposed initially and it should also be remembered that while Australia is a multi-cultural society, a significant section of the population is Christian with Christian values. The ACA was very forthright in indicating that its interest lay with consumers, only one of a number of relevant considerations for the deliberation of this Commission. Sunday has traditionally been the day when people play sport, watch sport or merely take a rest.
[214] Business Interest: In the South-East Corridor Case of 1998, the Full Bench said of the matters to be taken into consideration:
“If exempt shops and independent retail shops are small and medium businesses, then non-exempt shops are large businesses and must, therefore, also be taken into account. …
As we have mentioned above, the interests of exempt, independent and non-exempt retail shops must all be considered when deciding whether to allow the application. However, there are other interests that must be taken into account as well. We can see no reason for treating ‘business’ as synonymous with ‘retailer’.”.
[215] The Full Bench then identified businesses such as cleaning, security, manufacturers/wholesalers of pasta and vegetable products, refrigeration contractors, cash carriers and those who provide services to exempt shops and to independent retail shops which would fall within the category of “business” to be considered. Thus an increase in business because of increased hours needed to be considered equally with any decrease in business because larger stores were permitted to open.
[216] Evidence was given in support of the application by Mr Brindle on behalf of the Queensland Investment Corporation which owns the Grand Central Shopping Centre in Toowoomba. In the 2001 case which introduced Sunday trading to the greater Brisbane metropolitan area, the decision of the Commission was extended by legislation which allowed Sunday trading in a larger area including Ipswich, Caboolture and the Logan areas. This activity was generated, inter alia, by representations made by QIC to Government which ultimately amended the Act and inserted further matters which required the Commission’s attention in dealing with similar applications. One of those matters was the requirement to take into account the attitude of local government in the locality. This Commission was informed by Mr Brindle that if this application, at least for Toowoomba, is not successful, representations will again be made to the State Government by the QIC to extend Sunday trading to Toowoomba. Mr Brindle also stated that the two shareholders of QIC are the Premier and the Treasurer. Further, Mr Brindle advised the Full Bench that the outcome of this application was critical for the continued viability of participants in the industry and its future development and was fundamental in ensuring the Queensland retail industry remains efficient and equitable for all participants. It was therefore remarkable that Mr Brindle could not give evidence of any approach being made by QIC to the Toowoomba City Council for support for this application.
[217] However, it is not clear from the evidence that a denial of the application will result in the Queensland retail industry becoming inefficient and inequitable for all participants. There was absolutely no evidence that the success of this application was critical to the continued viability of participants in the industry.
[218] There is evidence which suggests that the lack of Sunday trading has not been a disincentive at all for major investment throughout the area the subject of the application. The Commission viewed many projects involving considerable expenditure which were presently under construction and which were planned and approved in the absence of any ability of the major retailers to trade on Sundays. Development in the area the subject of this application is vibrant and the major retailers are clearly operating profitably without Sunday trading. Big W, for example, is planning and constructing new developments in both Dalby and Gympie. The evidence that building approvals have been issued for the development of major retail non-exempt shops in areas where Sunday trading is not permitted, leads to an inference that Sunday trading by those non-exempt stores is not necessary to make their business a viable proposition.
[219] The protection of small and medium business must attract a high level of priority for the closure of small and medium business due to competition on Sundays must increase unemployment. A vibrant economy depends upon successful small business. The evidence shows that it is Sunday which is the most profitable day of the weekly trade to most small business. To allow the major retailers to trade on Sundays in direct competition will no doubt sound the death knell for many. Whilst we accept that small independent retailers must be competitive, we are also of the view that they are not competing on a level playing field. We are further of the view that the current economic environment, particularly in the rural communities the subject of this application, is an additional obstacle which independent retailers must overcome, and which has a greater impact on them than on major retailers.
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[220] We accept that there is a limit to the disposable income of most consumers. Sunday trading would merely spread that disposable income over seven days instead of the present six and at the same time, deny to those depending upon Sunday trade, a significant part of their profit. There are many small business operators who depend upon other small and medium businesses for their livelihood so that if some small and medium businesses are forced to close or cut back because of increased competition, the ramifications could be much wider than those directly affected. There is evidence that some small and medium businesses have lost market share because of Sunday trading and there is also evidence that, in the extreme, some small businesses have gone into bankruptcy. Large business, as evidenced by continued growth and investment, does not need Sunday trading hours to survive.
[221] (vi) The alleviation of traffic congestion: In the regional areas affected by this application, traffic congestion is hardly likely to be relevant and nothing has been pointed to by the parties which should be taken into consideration with the exception of traffic congestion in the main street of Toowoomba on a Sunday. The evidence revealed that on a Sunday, when regulated parking restrictions were lifted, employees of the various businesses parked their vehicles in the main street making parking on Sundays a premium. There is also evidence of carpark congestion on Saturday in Toowoomba which would probably be alleviated somewhat by Sunday trading. However this is not of such significance as to outweigh other factors.
[222] (vii) The likely impact of the order on employment: This provision was not part of the Act when the previous South-East Queensland application was before the Commission, having been introduced into the Act from 1 August 2002. In the 2001 decision (2002) 169 QGIG 48, the Full Bench had this to say about employment:
“There has been considerable evidence led in this case in relation to s. 26(e) … in terms of ‘public interest, consumers’ interest, and business interest (whether small, medium or large)’. Within this context, the QRTSA has submitted that ‘the shift in market share will not have any major increases in employment within the area, simply creating a subsequent shift in employment from small business to large business.’ This may well be the case – certainly, we had put to us figures for anticipated employment growth in major stores were the application to succeed. We are unable to ascertain whether, on prior occasions, we have had any hard statistics put to us with regard to real employment growth in non-exempt stores when trading hours have been enlarged. We have not relied upon the projected employment growth in the non-exempt stores in making this decision. However, should appropriate statistical material around this point be led in evidence before a future Full Bench of this Commission it may well be material worthy of greater consideration.”.
[223] No hard evidence of real employment growth due to increased trading hours has been put before this Full Bench either. No figures have been produced by the NRA to show the real extent of the effect of Sunday trading on small and medium business and the consequent loss of employment due to those other businesses which depend on them. Nor were firm figures provided on the employment levels of large businesses as a result of Sunday trading being introduced in the South-East Queensland Area in 2002. Sunday trading has now been in operation in some parts of Queensland for over two years and in other parts of Australia over longer periods and the effects should be able to be measured by accurate statistics. Yet the NRA has not grasped the opportunity to provide such evidence to this Commission. There has been evidence that employment in the major retailers on a Sunday will grow but that is self-evident. There has also been evidence from major stores as well as small business, that Sunday trading has taken from other days of the week. In that case, it is not unlikely that employment growth on Sundays will come at the expense of employment during the week or even at the expense of small business. Full-time employees do not like Sunday work and are likely to be replaced by Sunday casuals. Weekday seniors are replaced with weekend juniors. There is too much evidence to ignore that Sunday trading shifts the focus from full-time employment to casual. Much evidence pointed to the shift in trading from Monday – Saturdays to Sunday. Hard statistics are required and it is this Full Bench’s view that such statistics need to be provided by applicants in trading hours matters, not other parties given a right to be heard in such applications.
[224] That task may well, in the end, fall to Government. It is too late once small business has been adversely affected by Sunday trading. Once given, Sunday trading cannot be taken away and we feel it is far better to proceed with caution. As Nicole Simpson so eloquently put it, small retailers should not be used as “guinea pigs”.
[225] (viii) The view of any local government in whose area the order is likely to have an impact: This consideration was not part of the Act when the previous South-East Queensland trading application was being considered, having been introduced as from 1 August 2002. What was telling on this criteria is not the evidence that was before this Full Bench but rather the lack of evidence.
[226] The evidence before this Full Bench shows that it was the QRTSA who sought to obtain the views of the respective local authorities and not the NRA. Once again we see the gathering of such information as one for
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the applicants in trading hours matters – not for those organisations given a right to be heard in such applications. The following indications from local authorities were received by the QRTSA:
Local Authority View Beaudesert Shire Council Supported to balance of Shire Boonah Shire Council Opposed Bundaberg City Council Any decision is a commercial decision for traders, not Council Burnett Shire Council Opposed Caloundra City Council Support – the “majors” already operate in some sectors of the City Cambooya Shire Council Opposed Clifton Shire Council Opposed (no formal motion) Cooloola Shire Council Opposed (may be no formal motion) Crows Nest Shire Council Preferred not to take a definite position Dalby Town Council Support Eidsvold Shire Council Opposed Esk Shire Council Neutral stance Gatton Shire Council To study the change occurring in Gatton Shire to see what it most advantageous before any decision is made Gayndah Shire Council Opposed Hervey Bay City Council Already has Sunday trading, very successful Inglewood Shire Council No view expressed – referred to Inglewood Progress Association and Texas Visitors Association Jondaryan Shire Council No view expressed Kilcoy Shire Council Not opposed Kolan Shire Council Opposed Laidley Shire Council Opposed Maroochy Shire Council Opposed to that part of the Shire not included in the existing approval Maryborough City Council No position – a matter for each individual business Millmerran Shire Council Opposed Mundubbera Shire Council Opposed Murgon Shire Council Opposed Perry Shire Council Opposed Pittsworth Shire Council Opposed – motion adopted Rosalie Shire Council Opposed – rejected outright Stanthorpe Shire Council General support Tiaro Shire Council Not supportive Toowoomba City Council No formal position Warwick Shire Council Opposed, unless introduced into neighbouring areas
[227] No response to contact by the QRTSA was forthcoming from the following Councils: Biggenden, Cherbourg, Isis, Kilkivan, Kingaroy, Monto, Nanango, Noosa, Wambo, Wondai, Woocoo or Ipswich City. All apparently have some aspect of their city or shire covered by the current application.
[228] It was disappointing to note that many local authorities did not seek to have input upon what the Legislature has identified as an important issue in these matters and that is, the attitude of the local government towards Sunday trading and extended trading hours. The Commission would expect that local authorities are in a better position to know of the true ramifications of the extension of trading hours in their respective localities. Yet few took up the challenge by way of direct evidence, most, if at all, preferring to give a simple written indication. The Mayor of Warwick Shire, Mr Bellingham, gave very helpful evidence on this legislative criteria. Ms Donna Neilson, a Councillor on the Cooloola Shire Council, was also of assistance and although authorised to speak on behalf of that Council in opposing the application, there would appear to have been no formal motion adopted by the Cooloola Shire Council. Mr Eugene Hollis-Neath is a Councillor on the Clifton Shire Council and was also authorised to represent Council but once again, there would appear to have been no formal motion adopted except that Council expressed opposition to an extension of trading hours. Local authorities need, in future, to “bite the bullet”, to understand the issues involved and to provide proper and informed indications to the Commission, for it is certain that this application will not be the last. It has been announced publicly by the NRA that if this application is successful, they will file an application for the remainder of the State by the end of next year. It is inferred that if this application is unsuccessful, another will follow in due course.
[229] It was suggested that local authorities were subjected to pressure from the independent retailers not to take a stance. However, it could equally be argued that major shopping centres have more financial ability to contribute to election expenses of Councillors and therefore apply their own brand of subtle pressure for Sunday trading support. Any pressure exerted by fear of losing votes from independent retailers and small business is,
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in our view, matched by an equal pressure capable of being applied by major retailers, shopping centre owners and developers. It would be disappointing if those were the reasons local authorities failed to respond.
[230] It may be that local authorities feel some reluctance to deal negatively with the question of Sunday trading because there is evidence that some of the major retailers have been courted to undertake development in local authority areas by the local authority. Be that as it may, local authorities have an intimate and hopefully unbiased view of the ramifications of Sunday trading in their locality and they should endeavour to express an opinion, as appears to be expected by the Legislature, and certainly by this Commission.
[231] We have no option but to conclude in the present case that within local authorities in the area the subject of this application, there is very little support for Sunday trading. There was no direct evidence from any local authority in support of the application.
[232] (ix) Such other matters as the Industrial Commission considers relevant: The views of organisations such as the local Chambers of Commerce are not directly brought into account by the provisions of the Act but no doubt, because of their relevance in a particular community, are matters that fall to be considered by the Commission. In the case of those localities where the local authorities have failed to provide any information, the views of these organisations gives some insight into the attitude of the local population. The following indications of other business organisations were received:
Organisation Position Australian Consumers Association In favour Cooloola Regional Development Bureau Opposed Gunnedah District Development Board In favour Hairdressing Federation of Queensland Opposed Independent Grocers of Australia Distribution Opposed Kingaroy Chamber of Commerce and Industry Inc Opposed Maryborough Chamber of Commerce Opposed Nambour District Chamber of Commerce Inc In favour Queensland Chambers of Fruit & Vegetables Industries Co- Opposed operative (Union of Employers) Limited Queensland Investment Corporation In favour Queensland Newsagents Federation Ltd Opposed Shopping Centre Council of Australia In favour Southern Downs Tourist Association In favour Stanthorpe Chamber of Commerce Opposed Tamworth and District Chamber of Commerce and Industry In favour Tasmanian Independent Retailers and NARGA Opposed Toowoomba Chamber of Commerce In favour United Star Supermarkets Limited Opposed Warwick Chamber of Commerce Opposed
[233] Once again, there was very little support for Sunday trading.
[234] The former Chairman of the Nambour District Chamber of Commerce was authorised to give evidence on behalf of the Chamber. He was passionate in his support for the concept of Sunday trading in the Nambour area but the letter produced to the Commission on behalf of the Chamber was not so fixated in its support for the concept. The President of the Toowoomba Chamber of Commerce gave evidence in support of Sunday trading. The Full Bench has some reservations in relation to the full acceptance of his evidence. The composition of the Chamber was not in evidence but at least one Director was Mr Dean Baker, a Director of the Grand Central Shopping centre and, along with QIC the owner, an advocate for Sunday trading. But more importantly, Mr Anderson alleged that an organisation entitled the Toowoomba CBD Taskforce Incorporated was a defunct organisation when in fact, other evidence, which is accepted by the Commission, was given by Mr Campbell that the organisation is alive and very well indeed. Furthermore, Mr Anderson proved to be intractable in insisting on some unbelievable positions he adopted in cross-examination.
[235] It is difficult to place any weight on the alleged success of Sunday trading in other States. There is some evidence from interstate that the success or otherwise of Sunday trading cannot yet be measured. There was evidence that in Tasmania, Sunday trading has not been accepted as successful by everyone. There was evidence that the Myer store in Tamworth closed after the introduction of Sunday trading and Mr Cathcart of the Tamworth and District Chamber of Commerce and Industry, giving evidence in support of Sunday trading, justified that closure on the basis that it was Myer Corporate Policy of closing all regional centres in New South Wales and Victoria. Mr Part, the Queensland Manager of Myer Grace Bros did not support that allegation. There is evidence that independent retailers in Victoria have the ability to hold a liquor licence and do sell, in some cases, vast arrays of wines, spirits and beers. The ready availability of liquor outlets owned by major
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chains and placed adjacent to shopping centres is obviously a draw card to those centres and operates to the disadvantage of those shopping precincts which do not have the facility.
[236] We consider it is significant that it has been Government which has introduced Sunday trading in those other States. What Government took into account is not readily apparent but it appears that the opinion of the local authorities had considerable significance in many areas. Local authorities in this State have not been so forthcoming with their opinion.
Whole deregulation?
[237] The question arises as to whether it is now within the power of this Commission to wholly deregulate shopping hours in this State. In the South-East Queensland Corridor Case of 1998, the following statement appears:
“The only way in which discrimination of the type complained of might be overcome is by exercising the discretion at s. 21 of the Trading (Allowable Hours) Act 1990 to introduce a wholly deregulated retail market. That would be an extraordinary exercise of a discretion vested by an Act whose long title is ‘An Act to regulate the trading hours of shops and for related purposes’. We reject the submission.”.
[238] What has happened since that decision is that the Act has been amended (in 2002) by removing the word “regulate” from the long title and substituting the word “decide”. This amendment was explained by the Honourable the Minister in the second reading speech (19.2.2002) when he said that in the past, an interpretation had been that the Act had an objective of regulating and restricting trading hours of non-exempt shops. There appears therefore to have been an intention by the Legislature that this Commission be vested with the power to wholly deregulate trading hours in this State, providing of course, that the fetters imposed by s. 26 are applied. Of course, whether the Commission should is another matter. That same Full Bench is also recorded as saying that change should evolve over time rather than be dramatic, and with that statement, we respectfully agree.
Conclusion
[239] This application seeks the extension of trading hours effectively so that the major supermarkets and shopping centres in Regional Queensland (Southern and Eastern Area) can trade on Sundays. The argument for and against extended trading hours has evolved over a period of time so that essentially in recent years it has been a case of big business against small business. It is for the applicant in such matters to convince the Commission that there is a need, based on the legislative criteria, for a change to trading hours. Organisations such as the QRTSA and the SDA are not respondents in the true sense of that term. They are simply organisations who have shown a sufficient interest to warrant being given leave to appear and be heard in the proceedings.
[240] We have considered all matters required of us by the legislation and the whole of the evidence, the submissions and the exhibits.
[241] There is no doubt that the major retailers will continue to succeed economically whether there is Sunday trading or not whereas there is a real likelihood that the smaller retailers will suffer, some fatally.
[242] Something needs to be said about the agreement reached between the NRA and the SDA. The SDA, as it was quite entitled to do, obtained a compromise position by agreeing to the application in an amended form. The SDA told the Commission that it has carried out a survey of its members some years ago and they had supported Sunday trading. It should however, be noted that the survey was not before the Commission and it was a survey taken some three years ago. As such it can carry no weight in the determination of the application before us.
[243] Toowoomba needs special mention. Once again, the Toowoomba City Council has not bothered to inform the Commission of its position with respect to the application. The view of the Toowoomba Chamber of Commerce does not carry the same legislative weight as the views of the local authorities. On the other hand, Warwick City Council did take a position on the application. It strongly opposed the introduction of Sunday trading and the Mayor of Warwick City Council took the time and trouble to come to the Commission and given evidence of his Council’s position on the application. Warwick City Council’s position however is that if Toowoomba was able to trade on Sundays then Warwick must also be able to trade on Sundays. Similarly, if Toowoomba were to be able to trade on Sundays then so to would Stanthorpe, Dalby, Chinchilla etc. The application, as the NRA basically conceded, is an all or nothing application.
[244] Some mention needs also to be made of Nambour, Beerwah and Beaudesert. Each of the areas are within close proximity of areas allowed to trade on Sundays in the South-East Queensland Area. It was not this Commission that drew the boundary to the defined South-East Queensland Area in the legislation. It was the Queensland Government, no doubt in consultation with others, that determined the boundaries. We have no material before us as to the rationale for the existing boundary. We can only assume that the Government had good reason for
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establishing that boundary. It is however, always the case that where a boundary is established that there will be some who conveniently fall within the boundary and some that fall just outside the boundary.
[245] In summary, there is already a degree of escape expenditure in most localities which will not be curtailed by the introduction of Sunday trading. When the level playing field is spoken about, it is usually the complaint of the major retailers that the absence of Sunday trading causes the playing field to be uneven, but uneven it will be even if Sunday trading is introduced. There is no evidence that the long term economic well being of the retail sector will suffer by the denial of Sunday trading in regional Queensland but there is evidence that it may if Sunday trading is introduced in the area. The retail sector comprises small and medium business as well as large business. Capital would appear to be efficiently utilised at the present time with the ongoing major developments occurring within the locality the subject of this application. There is no evidence or insufficient evidence that there are changing needs and shopping patterns in the regional areas that need addressing and there is no real evidence of increased employment through Sunday trading.
[246] In all the circumstances we have not been persuaded by the NRA that the trading hours in the area the subject of this application i.e. Regional Queensland (Southern and Eastern), should be altered in the manner sought. We therefore dismiss the application.
[247] Order accordingly.
D.M. LINNANE, Vice President. Appearances: Mr G. Black for the National Retail Association Limited, Union of Employers. B.J. BLADES, Commissioner. Mr J. Price for the Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers). Mr L. Gillespie for the Shop, Distributive and Allied Employees I.C. ASBURY, Commissioner. Association (Queensland Branch) Union of Employees. Mr D. Broanda for The Australian Workers’ Union of Employees, Hearing Details: Queensland. 2004 19 November Mr R. Wotherspoon for the National Meat Association of Australia (Queensland Division) Industrial Organisation of Employers. 2005 3 February Mr J. Oliver for the Hardware Association of Queensland, Union of 3 and 21 March Employers. 17, 23, 24, 25 and 26 May 6, 7 and 8 June Released: 15 September 2005
Government Printer, Queensland
The State of Queensland 2005.