Queensland Government Industrial Gazette, Dated 26 September, 2008, Vol

[Extract from Queensland Government Industrial Gazette, dated 26 September, 2008, Vol. 189, No. 8, pages 569-608]

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 (TH/2007/7)

TRADING HOURS - NON-EXEMPT SHOPS TRADING BY RETAIL - STATE

(Mackay Area)

VICE PRESIDENT LINNANE COMMISSIONER ASBURY COMMISSIONER THOMPSON 18 September 2008

DECISION

1. CLAIM

[1] This is an application by the National Retail Association Limited, Union of Employers (NRA) made pursuant to s. 21 of the Trading (Allowable Hours) Act 1990 (Act) seeking to amend the Trading Hours Order - Non-exempt Shops Trading by Retail - State (Order). The application seeks to amend the Order by inserting a new subclause in clause 3.2:

"(16) Mackay Area:

Opening Time Closing Time

Monday to Friday 8.00 a.m. 9.00 p.m. Saturday 8.00 a.m. 5.30 p.m. Sunday 9.00 a.m. 6.00 p.m. Public Holidays (except 25 December, Good Friday, 25 April and Labour Day) 8.30 a.m. 5.30 p.m.

And by inserting the following new definition in Schedule 1 (Definitions):

"(23) The Mackay Area - the area within the following boundaries:

Commencing at the intersection of the 21st parallel of south latitude with the 149th degree of east longitude; then by that meridian of east longitude due south to 21 degrees 40 minutes of south latitude; then by that parallel of latitude due east to the sea coast; then by the sea-coast northerly to the point of commencement.".

[2] The current Order provides that non-exempt shops shall be kept closed on Sundays and public holidays (as defined) except where specifically prescribed by the Order. The area covered by this application is not currently prescribed by the Order.

[3] Essentially the application seeks to introduce trading on Sundays and certain public holidays to the city of Mackay and the towns of Sarina and Walkerston. In its application, the NRA said that Mackay city is the economic powerhouse of northern Queensland and is a vital service sector for the Bowen Basin coal mining industry which produces 85% of Queensland's coal. According to the NRA, Mackay city is the regional hub of Queensland's highest value export region with coal, sugar, beef and tourism being the principal export products. Further, Mackay is at the centre of Australia's largest sugar producing area with infrastructure including several sugar mills, one of Australia's four sugar refineries and one of the largest bulk sugar terminals in the world.

[4] The application is opposed by the Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) (QRTSA). The Australian Workers' Union of Employees, Queensland (AWU) supported the application on the basis of an agreement reached with the major retailers that, should the application be granted, any work performed on a Sunday by existing employees would be voluntary in nature. The agreement was confirmed by witnesses giving evidence on behalf of the major retailers. Both the QRTSA and the AWU were granted leave to be heard on the application.

[5] In the course of hearing this matter, the Full Bench undertook inspections of the Mackay, Sarina and Walkerston area which was organised by the NRA. The program of inspections was agreed to by the QRTSA and involved some of the smaller retail traders. As part of the inspections the Full Bench attended the Mackay Regional Council 2

Chambers and met with a number of Councillors. Throughout this meeting representatives of the NRA, the QRTSA and the AWU were in attendance.

[6] The matters relevant to our consideration of this application are those found in s. 26 of the Act which provides as follows:

"26 Matters relevant to s. 21 order

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.".

2. WITNESSES

[7] Evidence for the NRA in support of the application was given by:

 Joan Barrett, consumer (Statement Exhibit 5);  Penny McMahon, retiree and consumer (Statement Exhibit 6);  Peter Marr, Owner/Operator of a Boost Juice Franchise at Canelands Shopping Centre (Statement Exhibit 7);  Mark Johnson, TAFE teacher and consumer (Statement Exhibit 8);  Jared Symons, Owner/Operator of a Health Habits franchise at Canelands Shopping Centre (Statement Exhibit 9);  Susan Spratt, consumer (Statement Exhibit 10);  Merryn Ward, Owner/Operator of a Gloria Jeans franchise at Mt Pleasant Shopping Centre (Statement Exhibit 11);  Scott Wallace, Regional Retail Support Manager Queensland, Woolworths Limited (Statement Exhibit 12);  Melanie Green, Regional Manager NSW/Victoria for Lend Lease Retail (Statement Exhibit 13);  Barry Waters, Regional Manager for Big W Discount Stores (Statement Exhibit 14);  Lesley Sivyer, consumer (Statement Exhibit 15);  Anjuna Singh, Retail Asset Manager for Macquarie Asset Services Ltd (Statement Exhibit 16);  David Phillips, General Manager of Mackay Tourism Limited (Statement Exhibit 17);  Gerard Winzenberg, District Manager for Target Australia Pty Ltd in Queensland (Statement Exhibit 18);  Ray Allan, Centre Manager of the Mt Pleasant Greenfields Shopping Centre, Mackay (Statement Exhibit 19);  Don McBryde, National Lease Administration Manager for the Colorado Group (Statement Exhibit 20);  Warwick Powell, Managing Director of Transpac Consulting Pty Ltd, a multi-disciplinary business development firm, and a market research company (Statement Exhibit 21);  David Stout, State Compliance Manager for Coles, and authorised to represent Kmart (Statement Exhibit 22);  Perry Kilsby, owner and operator of Book City, Sydney Street Markets (Statement Exhibit 34);  Katherine Julieanne Podnar, National Sales Director, Jeans West (Statement Exhibit 35);  Narelle Anne Cooper, owner and operator of the Walkerston Newsagency, Walkerston Shopping Village (Statement Exhibit 36);  Stephen Harris, General Manager Universal Store (Statement Exhibit 37);  Greg Chapman, Corporate Legal Counsel for the SSI Group, including WOW Sight and Sound (WOW) (Statement Exhibit 38);  Holly McDonald, owner and operator of a Donut King Franchise at Canelands Central Shopping Centre (Statement Exhibit 39);  Ron Reseck, Operator of three McDonalds franchises at Canelands Central Shopping Centre, North Mackay and the Mackay CBD (Statement Exhibit 40);  Gary James Dorman, Regional Manager for JB Hi Fi Limited (Statement Exhibit 41);

 Sonia Moura, Human Resources Manager for Speciality Fashion Group comprising Katies, Miller's Fashion Club, Crossroads, Autograph, Queenspark and City Chic (Statement Exhibit 42);  Anna Cristaldi, Human Resources Manager for Lorna Jane (Statement Exhibit 43);  James Dever, Regional Manager for City Beach in Queensland (Statement Exhibit 44);  Vanessa Miles, National Human Resources Manager for Diva (Statement Exhibit 45); and  Melanie Hourigan, State Manager for Angus and Robertson in Queensland (Statement Exhibit 46).

[8] Evidence for the QRTSA in opposition to the application was given by the following persons:

 Andrew Archie McMurtrie, working partner, Terry White Chemists Mackay and Canelands Centre Medical Pharmacy (Statement Exhibit 23);  Gabriele Giannangelo, Director GASMC Pty Ltd trading as Battery World Mackay (Statement Exhibit 24);  Justin Francis Englert, Manager FoodWorks East Mackay (Statement Exhibit 25);  Donna Abbot, Manager for the De Campo Mini Market Mackay (Statement Exhibit 26);  Cherry Feeney, Mackay resident and business person (Statement Exhibit 27);  Jenelle Schembri, Director/Owner of Sasstow Pty Ltd, trading as Danoz Directions Mt Pleasant (Statement Exhibit 28);  Rebecca Formosa, Owner Manager of Billy Baxter's Café Mt Pleasant Shopping Centre (Statement Exhibit 29); and  Robert George Christensen, Councillor, Mackay Regional Council (Statement Exhibit 30).

[9] In dealing with the evidence presented during the course of the hearing we shall do so under the specific criteria the Commission must have regard to as provided for in s. 26 of the Act.

3. THE LOCALITY, OR PART THEREOF, IN WHICH THE NON-EXEMPT SHOP OR CLASS OF NON- EXEMPT SHOP IS SITUATED

[10] The application seeks to amend the Order to allow Sunday trading in the Mackay area which includes Sarina and Walkerston.

[11] According to the evidence of Mr Wallace, Woolworths Limited has the following stores in the area, subject of the application:

 Woolworths Canelands - Canelands Shopping Centre Mulgrave Road Mackay;  Woolworths Mt Pleasant - Phillip Street, North Mackay;  Woolworths Walkerston - 4 Creek Street, Walkerston;  Woolworths Sarina - Broad Street, Sarina;  Woolworths Andergrove - 23 Oak Street, Andergrove, Mackay.

[12] Ms Green said that Canelands Central is the premier shopping destination in the Mackay region, and is located a short distance from the Mackay Central Business District (CBD). Canelands Central is anchored by a number of non-exempt retailers. Ms Singh said that Macquarie Asset Services Ltd is engaged by Macquarie Country Wide Trust as Manager of the Sydney Street Markets Retail Precinct in Mackay. The Sydney Street Markets is the first project in the Mackay City Council's CBD revitalisation program. The Project comprises a $26 million art deco inspired shopping centre located on the former Mater Hospital site, and includes a 3,200m² new format Coles supermarket, 15 speciality stores and 132 car parking spaces.

[13] Mt Pleasant Greenfields Shopping Centre is located in the northern suburb of Mt Pleasant Mackay. It is approximately 8 kilometres from the airport and 5 kilometres from the city centre. The Colorado Group has four stores in the Mackay region: two Mathers stores at Mt Pleasant and Canelands; Williams the Shoemen at Canelands and Colorado at Canelands. Coles operates stores at Sydney Street and the Mt Pleasant Shopping Centre.

4. THE NEEDS OF THE TOURIST INDUSTRY OR OTHER INDUSTRIES IN SUCH LOCALITY OR PART

[14] According to Ms Green, Canelands Central services the needs of an exceptionally strong regional economy, which is driving strong demand and growth in the Mackay region. The Mackay Whitsunday Regional Economic Report for the year ending June 2007 (Attachment A to Ms Green's Statement Exhibit 13) indicates that there has been a 4.25% increase in Gross Regional Product, the largest growth in the State. There has been continued rapid growth in dwelling and non-dwelling investment in the region, indicative of strong business and investor confidence.

There is also significant investor confidence in industrial land development in the region with a total investment of more than $600 million over the year in industrial land development related projects.

[15] Mr Phillips said in his evidence that Mackay Tourism Limited is the peak tourism body for the Mackay region, covering the city of Mackay and the surrounding shires of Belyando, Broadsound, Mirani, Nebo and Sarina. It is a non-profit community organisation funded by members, corporate sponsors and State Government bodies. The Board of Directors of Mackay Tourism Limited is representative of the tourism stakeholders across the industry, and meets monthly. Key issues on the Mackay Tourism Limited Board's agenda for the year ahead include accelerating the capacity of local accommodation to recapture leisure visitation and seize growth opportunities, expanding the range of activities for visitors, supporting the professional development of tourism operators and positioning Mackay strongly in the state and national conventions market. Mackay tourism supports the NRA application.

[16] According to Mr Phillips, Mackay city is the economic powerhouse of northern Queensland and the vital service sector for the Bowen Basin coal mining industry, which produces 85% of the State's coal. Mackay is the regional hub of Queensland's highest value export region with coal, sugar, beef and tourism being the principal export products. Mackay is also at the centre of Australia's largest sugar producing area with infrastructure including several sugar mills, one of Australia's four sugar refineries and one of the largest bulk sugar terminals in the world.

[17] Mr Phillips said that it is accepted that there is a co-dependency between tourism and the retail industries, and visitor surveys have shown that shopping is ranked as a priority amongst all categories of tourists. Seven day trading facilitates the ease with which tourists can meet their needs, and directly contributes to an increased tourism spend, which in turn contributes significant sums to state and local economies. Seven day trading also assists in lessening confusion for tourists about shopping hours between the various localities within the State and the granting of similar trading hours between regions will help unite Queensland's tourism industry rather than providing competitive advantages between the regions. In response to a question from the Commission, Mr Phillips said that tourism had relatively little impact at Walkerston or Sarina and it is unlikely that tourists would go to those destinations on Sunday to shop.

[18] Mr Phillips also said that from a tourism perspective, larger retailers opening would encourage smaller retailers to also open so that "entertainment" shopping could be undertaken. Larger retailers being open would create a precinct for people to go to shop and give the impression that Mackay was vibrant and had "the lights switched on". Mr Phillips was unable to provide percentages of travellers who see shopping as important.

5. THE NEEDS OF AN EXPANDING TOURIST INDUSTRY

[19] The Mackay Whitsunday Regional Economic Report for the year ending 2007 (Attachment A Exhibit 13), indicates that there has been a 25.1% increase in tourism visitation to the region, contributing to a 31.1% increase in takings at accommodation establishments. Ms Green said in her evidence that if the Commission allows Canelands Central to open on Sundays and holidays, it will improve the reputation and image of Mackay and enhance the prospect of repeat visitation. Lend Lease has the view that the lack of shopping opportunities in Mackay is a cause of inconvenience for tourists, travellers and visitors who are staying in Mackay on these days, and hanging out a "closed for business" sign sends the wrong signal to this important market. Providing more extensive shopping hours should reduce the risk of dissatisfied tourists and increase the likelihood that these tourists will promote their experience to friends and relatives.

[20] According to Mr Phillips, the Mackay regional economy has undergone unprecedented growth and development in recent years, fuelled by the boom in coal mining in the Bowen Basin, the resurgence in agri-business, growth in tourism and an emerging marine sector. Mackay is Queensland's leading export region with $8.7 billion of exports in 2005, or 33.8% of total goods exported from Queensland. There have been significant increases in gross regional product and dwelling and non-dwelling investment, and a 25.1% increase in tourism visitation to the region, contributing to a 31.1% increase in the takings at accommodation establishments. Mr Phillips outlined thirteen developments planned or under construction in the Mackay region, related to economic growth and expansion in tourism and related sectors. Mr Phillips also outlined activities and attractions for visitors in Mackay and surrounding regions, including art galleries, gardens, marina, sugar mill tours, national parks, rainforests, beaches and tropical islands within the Great Barrier Reef Marine Park.

[21] Mr Phillips said that tourism data reveals that the Mackay region has experienced the highest percentage growth in any Queensland region in the number of hotels, motels and serviced apartment room nights occupied, and second highest after Brisbane in percentage growth of occupancy rates (up to 74.4% overall). Average daily room rates grew by 14.2% and average takings per room night available grew by 26.8% - both being the highest in Queensland. Overall the tourism industry contributes in excess of $300 million per annum to the Mackay regional

economy. Mr Phillips provided statistical information to demonstrate that business sector and holiday travel to the Mackay region is growing substantially.

[22] Business sector travel grew by over 38% (number of visitors) while holiday travel grew by 33.5% (number of visitors) in the year ending December 2007. Overall 721,000 domestic visitors visited Mackay in the year ending December 2007 representing an overall increase of 9.2% over the previous year. Visitors stayed an average of 3.4 nights in the region. Business sector travel accounted for 38% of total visits while holiday travel comprised 31% of total visits. 27% of total visitation was made up of persons visiting friends and relatives. The number of international visitors to the Mackay region also increased by 30%, according to the latest International Visitor Survey for the year to December 2007. In that year, 57,000 international visitors spent 293,000 nights in the region. This was a 32.2% increase in visitor numbers from 2006 and a 31.7% increase in nights. In the year ending March 2007, the total accommodation turnover was $53.2 million, 31.1% more than in the year ending March 2006. This was driven by the increases in guest arrivals and visitor nights of 2.3% and 14.9% respectively.

[23] Mr Phillips said that these statistics, along with continuing growth in passenger numbers through Mackay airport, are evidence of the region's buoyant visitor activity. Increased visitation will also be facilitated by a third tilt train service each week, in either direction. In terms of airport traffic, Mackay is very well serviced by frequent Virgin Blue, Tiger, Jetstar and Qantaslink flights direct from Sydney, Melbourne, Brisbane and other Queensland coastal cities. There were 732,321 passenger movements at the Mackay Airport in the year ending June 2007, 11.8% more than the year ending June 2006 and an increase of 66% in the three years since 2004, when there were approximately 440,000 passenger movements.

[24] Tiger Airways commenced direct flights between Melbourne and Mackay from 23 November 2007. This means that Mackay and surrounding regions can seriously compete in the cost-conscious fly-drive market from Victoria and offer direct and affordable access for all types of leisure and business travellers. It is also important that Melbourne is Australia's second most important international gateway, and will generate substantial on-traffic to cities connected directly with low airfares. These developments, according to Mr Phillips, provide a great opportunity for Mackay to build traffic from Victoria and confirm Mackay as the fly-drive gateway to North Queensland.

[25] Mr Phillips considered that while much of the growth to the region is being driven by business visitation, particularly relating to the mining and engineering sector, positive flow-on effects extend throughout, and far beyond, Mackay's frontline visitor industry. For example, low airfares which are a product of high business visitation, in turn help boost other categories of tourism visitation including holiday makers and those visiting friends and relatives. The overall growth in inbound traffic to the region means that Mackay city, and the hinterland towns, will need more rooms to meet future needs, and to support conventions and events opportunities that will be created with the opening of the convention and exhibition centre, which is expected to occur in 2009. It is expected that the city's total hotel rooms inventory will rise by about 50% over the next three years, with some additional 1,200 rooms planned or proposed.

[26] Mr Phillips said that Mackay is the gateway to the Whitsundays and the north Queensland tourism region. The majority of visitors to North Queensland arrive by road and the great majority of those will travel through Mackay. This is a seven day a week phenomenon. Mackay's retail sector suffers escape expenditure and lost expenditure when visitors pass through the city on Sundays and holidays and are unable to spend. Mackay has a strong retail infrastructure, and it is desirable that visitors be allowed to access the full range of shopping facilities in Mackay on Sundays. Mackay tourism believes that the increase in shopping hours proposed by the NRA would improve both overall visitor expenditure in the region and also the competitiveness of Mackay as a destination and getaway.

[27] In response to a question from the Commission, Mr Phillips said the question of whether there had been a decline in tourism in the Mackay region depended on how tourism was defined. Mackay Tourism Limited defines tourism as the visitor industry as a whole. Tourists as pure holiday makers account for only one third of total visitors. When total visitors are taken into account, visitor numbers, expenditure and room occupancies have never been higher than they currently are. The actual number of leisure tourists has not declined, but it has not grown. For the accommodation sector the actual proportion of leisure tourists has declined although total numbers of tourists as a whole have increased.

[28] Under cross-examination Mr Phillips said that the Board of Mackay Tourism Limited comprised elected leaders from the tourism industry, and in addition, there were two board positions for representatives of the Daily Mercury and the local radio station, which were not elected. These positions were based on the level of sponsorship provided by the media outlets. Mr Phillips agreed that both media outlets were in favour of Sunday trading.

[29] Mr Allan said that Mackay is the hub of a booming regional economy. It is the main gateway to tropical North Queensland and the Great Barrier Reef for the drive tourism market. That market does not distinguish between

days of the week and typically originates from seven day trading locations. Mackay is also the main point of interchange for fly-in and fly-out employees working in central Queensland mining sites. Weekend visitation to Mackay is high. These factors lend support to the introduction of seven day trading, and sustain a view that capital investment in the Mt Pleasant Greenfields Shopping Centre is currently significantly under-utilised. Ms Spratt said that she had previously worked in the tourism industry for 5 years, and had noted a decline in the numbers of tourists visiting Mackay over the past ten years. In Ms Spratt's view, Mackay needs something like Sunday trading to boost tourist numbers.

[30] In Ms Feeney's view, there is no evidence that tourists need larger shopping centres to be open. As a regional area, Mackay is not a major shopping destination, but rather a destination for people who want to go to the beach or the Mountains. According to Ms Schembri, Mackay tourism has taken the view that people living in caravans are self catering and require somewhere to buy their supplies. However, most of Mackay's caravan parks have closed for development, and the ones that are still open are full of workers who cannot find housing. Ms Schembri also expressed the view that Mackay is not a shopping destination and shopping centres in Mackay and surrounding areas are not tourist attractions.

6. THE NEEDS OF AN EXPANDING POPULATION

[31] It is Ms McMahon's opinion that the rapid increase in Mackay's population is the reason why supermarkets have become congested during the week. Ms Spratt said that more and more people are moving to Mackay from places which have already experienced the benefit of Sunday trading. This is creating an expectation in the community about the issue. There are also people who come to Mackay from Brisbane and Sydney to work in the mines, and miss the convenience of Sunday trading.

[32] According to Ms Green, Canelands Central services a rapidly expanding population, with the population of Mackay city growing by 4.2% or 3,800 persons in 2006. This rate of growth is well in excess of the State average and places Mackay in the list of the top ten largest growth local government areas in Queensland. Population projections show that by the year 2026, Mackay will be Queensland's second largest regional city.

[33] Ms Singh said that it is estimated that 80% of the State's population reside in areas where they are able to shop and trade on Sundays. In statistical terms, south-east Queensland accounts for 66.4% of Queensland's population or 2.6 million people. Other seven day trading areas include Hervey Bay, Yeppoon, Whitsundays, Townsville, Cairns and Port Douglas. The combined population of these areas is in the order of 500,000 people. Approximately 3.1 million of Queensland's population (80%), enjoy convenient access to shopping centres over all seven days of the week.

[34] Mr Powell, through the Report of Transpac Consulting Pty Ltd, said that over the past five years, Mackay city and to a lesser extent the surrounding shires, has experienced rapid population growth, which has fuelled demographic change. In 2006, Mackay city's population was 90,303 persons. Between 2001 and 2006, the city's population had grown by 14,310 at an annual average rate of 3.5%. On average, over the past five years 75% of the city's population growth has been driven by net migration rather than natural increase. Economic migration to the city, in response to high-pay employment opportunities in the nearby mining industry, has attracted a significant number of younger workers and their families to the region. This is particularly evident in high growth corridors such as the Mackay Northern beaches where there is a disproportionate concentration of higher income younger families, with dependent children.

[35] According to the Transpac Report, by 2021, Mackay's population is forecast to grow to between 103,620 and 117,378 persons and by 2026 to between 108,074 and 129,033 persons. The Report points out that as the city's population grows, particularly on the back of economic migration, social needs and expectations begin to change. Experiences of social services elsewhere amongst new city residents, go towards expectations about what Mackay - as a growing regional city - should offer. Population and demographic-driven changes in social attitudes have come up against the established outlooks of older residents, and there is a clash of expectations between younger and older people. This is creating an emerging disjunction in expectations about retail services between older residents and working families.

7. THE PUBLIC INTEREST, CONSUMERS' INTEREST, AND BUSINESS INTEREST

[36] Public Interest: Mr Wallace said that Woolworths is an iconic Australian retailer, the second largest employer in Australia, and the employer of approximately 23,000 employees in Queensland. There are over 320,000 investors in Woolworths many of them everyday Australians who are beneficiaries of a profitable organisation. Woolworths makes extensive philanthropic contributions to national charities and in addition, each store donates a significant amount to local charities or community organisations.

[37] Under cross-examination, Mr Wallace said that he was aware of the current Australian Competition and Consumer Commission (ACCC) Inquiry into grocery pricing, and had seen reports of submissions to that Inquiry to the effect that Coles and Woolworths controls 80% of the supermarkets in Australia. Mr Wallace said that he was not aware of the proposition that Australia has the highest level of food inflation in the Organisation for Economic Co- Operation and Development (OECD). In relation to the philanthropic activities of Woolworths Limited, Mr Wallace said that he was not aware of specific contributions made in the Mackay region. However, the five stores in the Mackay area had a combined total of $40,000 to spend on charities deemed by managers to be worthy. Mr Wallace did not know what percentage of the turnover of those stores was represented by the $40,000.

[38] Woolworths is also involved in a fresh food program for children to encourage them to make healthy choices. At a national level there was an amount of $2 million to be made available to schools to use for items such as playgrounds and healthy food. In Mr Wallace's part of the business there was an amount of $211,000 to spend and it was currently being decided which schools, including those in Mackay, would share in this funding. Mr Wallace also pointed to fundraising for the Royal Children's Hospital in Brisbane which is carried out by Woolworths stores in Queensland, including those in Mackay.

[39] Mr Waters said that all Big W stores make contributions to local charities or in support of community organisations and events. This included stores in the Queensland region raising and donating over $1 million to the Royal Children's Hospital in Brisbane, and committing to raising a greater amount over the next five years.

[40] Mr Phillips said that tourism creates opportunities to establish new and expanded infrastructure, products, facilities and services, and expand existing businesses which would not otherwise be sustainable based on the resident population alone. However, the resident population also benefits from these developments.

[41] Under cross-examination, Mr Waters said that the Big W store in Mackay makes contributions to local community and sporting groups. Taking account of money donated for the purposes of flood relief, the total amount donated by Big W in the Mackay region is in the area of $20,000. In addition, contributions had been made to other charities in Queensland such as the Royal Children's Hospital Fund and staff undertook fundraising activities.

[42] Under cross-examination, Mr Winzenberg was asked what Target put into the local community by way of supporting social or community events or groups in the Mackay region and said in response that Target gave $20,000 to a flood appeal. Target also supports national fund raising efforts such as those associated with breast cancer awareness and sudden infant death syndrome. These fundraising efforts benefit people in Mackay as well as the rest of Australia.

[43] Mr Stout said in cross-examination that Coles supports the Mackay community by giving individual store managers the autonomy to deliver a set amount per six month cycle to charities selected using their own discretion. Each store manager is allocated $1,000 per month to be used in this way. Further, Coles donates to causes in each State such as the Royal Flying Doctors, Royal Children's Hospital, Guide Dogs Associations and other charities.

[44] Ms Schembri said that sponsorship and donations provided to local community organisations and events would cease if Sunday trading was introduced, due to increased costs. Under cross-examination, Ms Schembri said her business makes donations to small organisations like sporting clubs, and that these would have to be cut.

[45] Consumers' Interest: Ms Barrett lives with her husband and her 89 year old mother for whom she is a full-time carer. Ms Barrett moved to Mackay approximately ten years ago from Clermont, and runs her own recording studio business. Ms Barrett works for approximately 21 hours per week in her business and also occasionally teaches singing. Ms Barrett's husband works at a mine on a roster providing for four days on and four days off. During his time off, Ms Barrett's husband spends time renovating their home and working at a property in Maryborough which they are in the process of building. Ms Barrett supports the NRA's application as it would make finding time to shop easier because of the extra-curricular activities engaged in by her family.

[46] Ms Barrett also engages in regular activities outside of work including singing at retirement villages, churches, church groups and other charity organisations. Shopping on Sundays would give Ms Barrett better quality of life because it would be more convenient and allow her flexibility to get everything done. Ms Barrett would also utilise Sundays to shop with her mother and adult daughters, who have limited time to shop with her because of their location and work commitments.

[47] Ms McMahon has lived with her husband in Mackay for twelve years. Ms McMahon is retired and performs volunteer work for approximately ten hours per week for Blue Care. Ms McMahon supports the NRA's application to extend trading hours in Mackay on Sundays but does not support trade for non-exempt shops on certain public holidays. Ms McMahon's husband works occasionally on a casual basis running elections, and studies accounting at university. Previously Ms McMahon resided in areas where Sunday trading was allowed, and preferred to do her

shopping on the way home from church on Sunday. Currently, Ms McMahon has no fixed day on which she shops, but fits shopping in around other activities. Ms McMahon also considers that shopping on Sunday would improve her quality of life because it would be easier to shop. Ms McMahon considers it unfair that shops such as Bunnings are currently able to trade on Sundays but supermarkets such as Coles and Woolworths are not. In cross- examination, Ms McMahon said that she became a witness for the NRA after being canvassed by telephone.

[48] Mr Johnson works on a full-time basis as a TAFE teacher. Mr Johnson's wife works at Coles between eleven and thirty hours per week on some weekdays and most Saturdays. The family has lived in Mackay for four years and previously lived in Brisbane, where they regularly shopped on Sundays. Mr Johnson said that Sunday trading in Mackay would enable his family to have greater flexibility to get their shopping done. At the moment, shops in Mackay are more congested on Saturdays than they are on week days. According to Mr Johnson, trading on Sundays and public holidays for non-exempt shops would improve the quality of his life because it would be more convenient and he would not be paying the higher prices for grocery items in smaller convenience stores which are open on Sundays.

[49] Sunday trading would allow greater flexibility in Mr Johnson's social life as he would know that larger shops would be open to enable him to cater for an impromptu Sunday barbeque if the opportunity arose. Sunday trading would also enable the Johnsons to shop as a family, which is currently difficult. Mr Johnson has activities outside work which reduce the times he has available to go shopping. One of Mr Johnson's children has an illness which requires regular visits to a doctor and Mr Johnson studies psychology at university. Sunday trading would make it easier for the family to manage their commitments.

[50] In response to questions from the Commission, Mr Johnson said that he had been asked to give evidence to the Commission following his participation in a survey about Sunday trading. Mr Johnson said that his wife would not work on Sundays if the application was granted, because of the desire to spend time with their family. Mr Johnson's wife had been told by her boss that Sunday work would be voluntary. In response to the proposition that other workers would not be able to spend Sundays with their families if they were working in retail establishments, Mr Johnson said that while some people might be affected in this way, Mackay is not a 9 to 5 town, and people work at all times. For other families Sunday trading would enable families to shop together on Sundays.

[51] Ms Spratt lives with her husband and has lived in Mackay all her life. Ms Spratt supports the NRA application because it would mean greater flexibility when it comes to shopping, which she needs with her busy lifestyle. Ms Spratt works on a full-time basis between 41 and 50 hours per week, billing for a company associated with the mines and does occasional overtime on weekends at least once per month. Ms Spratt's husband generally works seven days per week in two jobs. He works on a full-time basis in the mines doing shifts of four days on and four days off. On his four days off he returns to Mackay where he has a part-time job as a pilot, flying small planes. Ms Spratt's husband is also undertaking training to obtain his commercial pilot's licence. Currently, Ms Spratt does grocery shopping on a Monday night and tries to avoid going shopping on Saturday because of the congestion experienced with the high number of people who shop on that day. Ms Spratt considers that Sunday trading would improve her quality of life by allowing her the flexibility of choosing which day to shop without being restricted to shopping during the busy Saturdays.

[52] Ms Spratt has activities she participates in with her husband, outside of work, including waterskiing and scuba diving. She also visits the gym five to six times a week and is studying for a diploma of applied science on an external basis. Ms Spratt said that when studying, she finds it difficult to fit everything into a normal day, let alone grocery shopping.

[53] Under cross-examination, Ms Spratt said that it would not make any real difference to her if Saturdays and Sundays were equally congested with shoppers, because she would be able to make a choice about which day she would shop, and this would be particularly useful on the occasions when she worked on Saturdays. Ms Spratt also agreed that if Saturdays and Sundays were equally congested, she would avoid congestion. During re-examination, Ms Spratt said that she might undertake shopping on Sundays for items other than groceries, such as clothing, as she would have time to browse.

[54] Mr Wallace said that if the NRA's application was granted, Woolworths' customers will have the choice of undertaking grocery shopping on Sundays at prices lower than those prices charged by the independent shops. According to Mr Wallace, a common complaint from customers in six day trading stores is that forced closure of Woolworths stores costs them money, as they are diverted to convenience stores where items are priced up to 80% above Woolworths' prices. In effect, the current trading hours restrictions impose a tax on consumers.

[55] According to Ms Green, it is the view of Lend Lease that it is unfair and inequitable that consumers in the Mackay region should be deprived of access to Canelands Central on all seven days of the week, when the overwhelming majority of consumers in other parts of Queensland and Australia are not denied access to shopping centres. In

regional Victoria, Tasmania, Northern Territory and the Australian Capital Territory there are no restrictions on shopping hours and in regional New South Wales residents are able to shop on Sundays. In most parts of regional South Australia, local government areas have successfully applied to the State government to have trading hours restrictions removed. In a number of local government areas in regional Western Australia (below the 26th parallel of South latitude) trading hours restrictions have been removed for the entire area or at least for the major city or town within the area. Above the 26th parallel of South latitude in Western Australia, there is no regulation of trading hours.

[56] Ms Green also said that research showed that the major issue facing retail customers throughout Australia today is the scarcity of time. More and more women are seeking and obtaining employment. Balancing work and family commitments, especially in dual income households is a major challenge, and the proportion of families with both parents working has increased over the decade 1993 - 2003 by 14% to 57.5%. The employment rate for women aged 15-64 is above 64% and has grown substantially over the last three decades. Working families in Mackay currently have less opportunity to shop as a family than do their counterparts in other States. Further, people for whom it is difficult to shop during regular trading hours, are at a disadvantage compared to those who are able to get to the shops easily during the regular trading week. This proposition was supported by reference to a 2001 Report prepared for the Queensland Department of Industrial Relations by Dr Barbara Pocock, Centre for Labour Research, Adelaide University, which highlighted the structural changes to Australian families which are exacerbating the effects of increasingly long working hours on Australian workers.

[57] According to Ms Green, customers are the lifeblood of retailing, and the retail industry must be able to respond to customer preferences about where and when they want to go shopping. While the majority of Queenslanders have the freedom to shop on Sundays and holidays, the residents of Mackay and surrounding districts do not. This is an anomaly which should be remedied. Under cross-examination, Ms Green said that Lend Lease believed that the inability for consumers in Mackay to shop on Sundays is inequitable and unfair. In response to the proposition that the Canelands Centre could open its doors on Sundays without the need for the current application to be granted, Ms Green said that if the major retailers were not allowed to open, there would be no benefit in doing so. The costs of opening would have to be met by only a few small retailers, and they would not have the draw card of the major retailers to attract customers to the centre.

[58] Mr Waters said that historical data suggests a trend towards Sunday trading, although Thursday, Friday and Saturday remain strong days. Sunday revenue is drawn from a combination of sales that might otherwise be made on other days of the week, and new or incremental sales. When Sunday trading is introduced, there is a definite increase in the number of customers that visit Big W over the complete week. The increase is explained, in part, by the fact that Sunday trading generates greater opportunities for family shopping than other days. Observations in Sunday trading stores confirm that a higher incidence of family shopping occurs on Sundays, and it is common for families to be involved in other activities such as sport on Saturdays. Sunday shopping is also favoured for "big ticket" purchases as it allows decisions to be made with all members of the family present. Sunday shopping also suits double income families. Sunday customers are, according to Mr Wallace, also likely to spend longer in the store browsing and appear to take more time to select purchases.

[59] Ms Sivyer and her husband live in Mackay and own and operate a business farming sugar cane and cattle. Ms Sivyer works in the farming business approximately twenty hours per week and works eighteen hours per week at a school doing both paid and volunteer work as a teacher's aid. Ms Sivyer's husband works between 51 and 60 hours per week on the farm, sometimes seven days a week. Ms Sivyer supports the NRA application. At the moment Ms Sivyer does her grocery shopping on Wednesdays as that is the day she does not work. Ms Sivyer believes that Sunday trading would improve her quality of life, because she and her husband would be able to use that day to go shopping as a leisure activity, or if her husband was working, Ms Sivyer would shop by herself after volunteering to do Church work, which she does every Sunday. Ms Sivyer said that she has a hectic work week, and Sunday trading would reduce the stress associated with finding the time to shop and would mean a greater choice of when to shop.

[60] Under cross-examination, Ms Sivyer said that Wednesday was perfectly fine as a day upon which to do her grocery shopping. If Sunday trading was granted, Ms Sivyer and her husband could go shopping together as this was the day upon which her husband tended to have spare time. Ms Sivyer might also use Sundays to do her grocery shopping as this would allow her to take more time. Ms Sivyer does not shop on Saturdays as she is a Seventh Day Adventist and has religious commitments on that day however she conceded that her religious beliefs are in the minority. Ms Sivyer said that she would happily put herself in a busy Sunday shopping environment because she loves to shop.

[61] Ms Singh said in her evidence that, shopping extends well beyond a needs-driven experience and now provides important social interaction and family activity, and this phenomenon has been well researched and documented. Mr Winzenberg said that Target Australia believes that it should be allowed to service its Mackay customers in the

same way as it services its customers in nearly every other regional area in Australia, by providing a good range of quality product at national prices over seven days of the week.

[62] Mr Winzenberg said that the primary catchment area for Target's metropolitan stores falls within a 15 km radius from the store. For the Mackay store, the catchment area is much larger and in instances, customers will travel relatively long distances to shop in Mackay. Seven day trading would be particularly beneficial for those customers. This has been the experience in Townsville, where lay-by and credit card data shows that Sunday is a popular and convenient day for people who live outside Townsville and have to travel a significant distance to access a reasonable shopping infrastructure. Weekend visits to Townsville are driven by sporting events, particularly the Cowboys' home games. It is estimated that 25% of Target's Sunday sales in Townsville are drawn from persons travelling into Townsville on Sundays or weekends.

[63] Mr Winzenberg also said that in Townsville, Sundays have represented on average 11% of the week's trade since inception. This is a particularly good result relative to Target's Brisbane experience and having regard to the fact that trading has been adversely affected by the late opening time of 11.00 a.m. in the Townsville area. In Mr Allen's view, the Mt Pleasant Greenfields Shopping Centre competes in the broader leisure, hospitality and entertainment market. While some tenant retailers may fulfil particular needs, the shopping centre complex creates an attractive and vibrant integrated leisure, entertainment and hospitality offer which is appealing to the residents of Mackay. It is logical that this amenity should be accessible on seven days of the week like other leisure and hospitality attractions. According to Mr Allen, Sunday shopping in Mackay will provide the opportunity for social interaction and family activity just as appropriately, or perhaps in some cases more appropriately, than sporting events, concerts, movies, restaurants, hotels, gaming facilities and so on.

[64] Mr Allan said that consumer research and experience with Sunday trading centres across Australia demonstrates that Sunday trading will be strongly supported by customers. If granted, the NRA's application will put Mt Pleasant customers on the same footing as the great majority of Queenslanders resident in other parts of the State. Many retailers both large and small currently trade in Mackay on Sundays, and it is a continuing source of confusion and frustration for customers that these retailers are permitted to open while Mt Pleasant Shopping Centre is forced to close. Sunday trading for Greenfields Homemaker tenants is very strong, with ongoing traffic problems and congestion every Sunday because of people shopping there. Store Managers at that Centre have informed Mr Allan that Sundays are good trading days and probably the best of the week after Saturdays. This is especially the case at Bunnings.

[65] In preparing its Report, Transpac conducted a survey of consumers in the Mackay, Sarina and Mirani local government areas as they were known (now the Mackay Regional Council Area). Data was collected by telephone and was sought from adults with principal responsibility for a household's shopping. The survey was conducted during the period from 1 - 6 November 2007 and there were 264 respondents. The maximum margin of sampling error at 95% confidence was said to be +/-6.0%. Survey results were as follows:

 81% of participants had shopped at stores currently permitted to open on Sundays within the last twelve months, while 18% had not;  participants aged 60+ had a lower propensity to shop at stores currently permitted to open on Sundays (62.9%) compared to 89% of all other age groups;  67% of participants had shopped at stores permitted to open on Sundays at least once a month within the last twelve months with 13.5% shopping at least weekly and 13.2% indicating they had shopped at these stores only once or twice in the previous twelve months;  couples with dependent children are most likely to have shopped on a Sunday during the previous twelve months, with 89% of those households indicating they had done so;  approximately one quarter of participants from Mackay and the surrounding region indicated that they had travelled outside the region in the past twelve months specifically to do retail (non-grocery shopping);  74% of participants indicated that they had visited or lived in another city where major supermarkets and shopping centres were allowed to trade on Sundays;  34.9% of participants worked more than 40 hours per week;  56.6% of participants worked only on weekdays while 43.2% worked more than five days per week; and  in terms of extra-curricular activities 20.7% of participants engaged in volunteering time to organisations and 20.7% in other activities including delivering and picking children up from school (15.5%), children's sporting activities after school (12.8%) and on weekends (12.7%).

[66] Attitudes of the participants to Sunday trading were measured by statements being made to participants regarding both positive and negative aspects and then the participants were asked to indicate their agreement or disagreement with those statements. Responses indicated that generally, support for the introduction of Sunday trading was underpinned by beliefs that it would:

 provide more employment opportunities for young people such as students;  provide more choice as to when people can shop which is important for those with extended working hours;  provide a second job to supplement family income; and  assist families where both adults work during the week.

[67] Conversely, the majority of survey participants did not agree with the main arguments often advanced against Sunday trading. A significant proportion disagreed with statements that Sunday trading would intrude on family time and the participation in sporting activities and religious activities. 48.9% of participants disagreed with the proposition that shopping centres and supermarkets should close on Sundays because some businesses were concerned about increased competition, compared to 25% who agreed with this statement. Overall support for Sunday shopping among survey participants was almost two and a-half times greater than overall opposition, with 48% of respondents strongly supporting the introduction of Sunday trading compared to 18% who strongly opposed it. Small business owners were said to universally support the introduction of Sunday trading, while 67.5% of full- time workers support it with 42.5% of those strongly supporting Sunday trading.

[68] The Transpac Report concludes that Sunday retailing at supermarkets and major shopping centres remains a controversial issue for local residents and policy makers, but there is a clear majority of opinion that supports its introduction in Mackay. This support is principally found among younger residents and working families. Newer residents with previous experience of Sunday shopping have expectations and needs that have been conditioned on the availability of Sunday shopping. This shifting attitude is particularly significant in the Mackay context, given the pace of population growth in recent years and the fact that 75% of this growth has come from net migration.

[69] Under cross-examination, Mr Powell confirmed that there were 264 residents of what was then the Mackay, Sarina and Mirani local government areas (now the Mackay Regional Council Area), who formed the sample for the survey. Mr Powell said that he had followed up some of the participants to gain a better understanding of their attitudes and provided that information to the NRA. Mr Powell had no specific knowledge that some of those persons would be asked to give evidence in support of the NRA's application. In the initial discussion with participants they were not told that Transpac was conducting the survey on behalf of the NRA. Participants would only be told the identity of the commissioning client if they asked for it. In follow up interviews some participants were told that the NRA may be interested in speaking further to them.

[70] Mr Powell said that in the initial interviews when a survey is conducted, participants are not told who the survey is being conducted for, because for research purposes, it is necessary to ensure that responses are not filtered. There were some 30 to 40 people contacted for second interviews. The purpose of these interviews was to provide more depth to the data and to understand and better interpret what the human motivations are. When asked about the proportions of participants in the second round of interviews who were for or against Sunday trading, Mr Powell said that the issue was not about proportions, but was about being able to speak to people who were candidly willing to discuss their points of view. The process was like conducting focus groups where samples were not aimed to be representative. Rather, participants in the second round of interviews were people who represent particular characteristics that the survey wanted to explore. Mr Powell also said that people who were strongly opposed to Sunday trading were more likely to decline to participate in the further qualitative research.

[71] In response to a question from the Commission, Mr Powell said he was not aware whether the time of the year at which a survey is conducted can impact on the outcome. Mr Powell also said that he would not be surprised that the three candidates for the position of Mayor in recent local government elections had all opposed the introduction of Sunday trading in Mackay and surrounding regions. According to Mr Powell, the Transpac research shows that there is a proportion of the community, around 20%, who do not support extended trading hours, and the views of those persons had been articulated by the candidates for Mayor. In response to a question about whether the stated opposition to Sunday trading by those candidates during the local government elections was a significant event that could have changed the views of survey participants, Mr Powell said that if there was no contest on the issue and it was not the subject of debate, it would not have changed the views of the survey participants.

[72] When asked to comment on an ABC radio poll where 66% of respondents were opposed to Sunday trading, Mr Powell said that he could not give a professional judgment about what those numbers meant without additional information about matters such as how the poll was conducted and how many samples were taken.

[73] Ms Schembri expressed the view that the Mackay population cannot sustain Sunday trading at this point. Only major retailers can afford the rising expenses associated with the introduction of Sunday trading.

[74] Attached to Mr Powell's witness statement (Exhibit 21) is a survey conducted by Transpac Consulting Pty Ltd of shoppers in the Stockland and Willows Shopping Centres. The survey was conducted on Sunday 4 November 2007 after the introduction of Sunday trading in Townsville and Thuringowa. The data collection method involved intercepting shoppers at both centres and questioning them in order to assess the social impact of the introduction of

extended Sunday trading in Townsville and also to gain insight on the potential social needs and impact of the Mackay proposal. There were 332 respondents to the survey, and the maximum margin of sampling error was said to be +/-5.3% at 95% confidence. Key survey results were as follows:

 the majority of Sunday shoppers were families with children still living at home, with 46% being couples with some or all children at home and 6.9% being single with some or all children at home;  the major items shopped for were groceries (24.6%); clothing and footwear (22.2%); household goods (10%); and miscellaneous items (13.5%);  major reasons for people shopping on Sundays related to convenience and being time-poor, with 26% of participants indicating that Sunday shopping was more convenient, 20.6% that working hours made it hard to shop on other days, and 10.9% indicating that they were shopping on Sunday because of the need to shop with another member of the family, typically a child;  58% of participants nominated a reason for shopping on Sunday as necessity, lack of time or the need to be accompanied by another member of the family for the shopping trip;  participants' main reason for shopping on Sundays differed slightly on the basis of family status, with the most single important factor for working families being the existence of too many non-work commitments on Mondays through to Saturdays; and  singles and couples without children indicated that their main reasons for shopping on Sundays were general convenience, constraints on time as a result of working hours and leisure/entertainment.

[75] Mr Stout said that in Coles' experience Sunday trading continues to grow in popularity and remains the fastest growing trading day of the week. Consumers have positively and enthusiastically embraced Sunday trading and socio-economic or geographic differences are not relevant to a determination of where this amenity should be made available.

[76] According to Mr Chapman, the majority of sales by WOW are made to couples undertaking a joint shopping exercise in a leisurely environment. This is because the major nature of the items involves a shared decision, many of which can only be made on weekends, due to both partners having work commitments during the week. This consideration for purchases is understandable when the average dollar sale is in the order of $2,000. It is the company's experience that Sunday provides a more leisurely opportunity for shopping with less distraction, allowing customers to focus on the product and the decision. There is far less pressure on shoppers on a Sunday and they are prepared to browse, investigate new products, watch a movie in a projection room or listen to the latest in sound.

[77] Mr Dever said that feedback from customers, store managers and staff indicates that customers strongly support Sunday trading and enjoy the relaxed atmosphere and strong family feel of Sunday. It is a time when they can shop as a family unit and make decisions together without the pressure of shopping on Thursday nights or Saturdays after sport. Under cross-examination from Mr Driscoll, Mr Dever said Sunday trading would benefit customers, because it would give them more shopping hours in which to complete their purchases.

[78] Ms Feeney is a resident of Mackay, and while currently a business person, has had stores in both shopping centres in Mackay over a ten year period. It is Ms Feeney's opinion that supermarkets are already open until 9.00 p.m. on weeknights and 5.00 p.m. on Saturdays. This means that there is enough time for consumers to shop. It is also Ms Feeney's view that there are already a number of retail outlets trading on Sundays, such as those selling furniture, sporting goods and information technology, all of which provide an avenue for people who like to spend time wandering in shops. It is also Ms Feeney's view that small businesses that already open on Sundays need the advantage that the shopping centres are not open. Further, small businesses within shopping centres are forced to run at a loss as the majority of people wander around looking and enjoying the air-conditioning.

[79] According to Ms Feeney, Mackay does not have the population to warrant Sunday trading. In her experience, having owned stores in local shopping centres, there is an increase in shoplifting as a result of extended trading, trade outside Christmas and Easter times is a struggle and usually family members work to cover the additional time and to save costs. After many years of extended trading, most shopping centres do not have substantial traffic flow until the last days before Christmas. Under cross-examination by Mr Black, Ms Feeney conceded that there are some people who have a different view than hers about whether retailers in Mackay should be able to trade on Sundays. Ms Feeney said that she had engaged in a lot of vibrant debates on the subject and acknowledges that others have a different view than that expressed by her. Ms Feeney also said that she had shopped in some of the homemaker centres such as Bunnings and the Good Guys and did not have any difficulty with retailers such as hardware stores being able to trade on Sundays when other large retailers could not.

[80] It is Ms Schembri's view that the argument that people do not have enough time to shop is ridiculous. Supermarkets are open until 9.00 p.m. on weeknights and 5.00 p.m. on Saturdays. Speciality stores in shopping

centres open until 9.00 p.m. on Thursday nights which is an extremely quiet trading time. It is also Ms Schembri's view that the argument that mine workers living in Mackay need an opportunity to shop does not make sense because most mine workers work on the basis of rosters that provide for four days on and four days off, with days off including weekends and weekdays.

[81] In Ms Formosa's opinion, supermarkets and shopping centres are already open six days per week with supermarkets remaining open until 9.00 p.m. If consumers find themselves short of essential items on a Sunday there is always a corner store close by. Many family owned corner stores rely on Sunday trading in order to make their business successful. If major shopping centres are open on Sundays it will draw trade away from those small businesses, ultimately leading to their demise.

[82] Business Interest: Mr Marr owns and operates a Boost Juice Franchise at Canelands Shopping Centre and has lived in Mackay for approximately 18 months. Mr Marr began operating this business in December 2006. He is unable to open his business on Sunday because the Canelands Shopping Centre is closed. If the NRA's application is successful, Mr Marr will trade on Sundays as he considers that it would be beneficial for his business. Mr Marr often comes into his store on Sundays to clean or prepare for the following week and on a number of occasions has seen people come to the entrance of the shopping centre closest to his store and attempt to enter, because they think that the centre is open.

[83] In response to questions from the Commission, Mr Marr said that he was aware when he bought his business that there was no Sunday trading at Canelands. Under cross-examination, Mr Marr agreed that his business met the definition of "independent retailer". Mr Marr also agreed that he had knowingly chosen to operate in an environment where there was no Sunday trading, but said that he had considered that it was inevitable that there would eventually be Sunday trading in Mackay. Mr Marr also said that he was not aware that the Canelands Centre could legally open on Sundays at present. In re-examination, Mr Marr said that if the Canelands Centre could open its doors but only a few of the tenants were trading, people would not come to the centre or would come in fewer numbers than they would if all tenants were trading.

[84] Mr Symons owns and operates a Healthy Habits franchise at the Canelands Shopping Centre. He has lived in Mackay for eighteen years and began operating his business 7 months ago. Mr Symonds is unable to open his business on Sundays as the Canelands Shopping Centre is closed. Mr Symonds supports the NRA's application and would trade on Sundays if it was granted, as it would be beneficial for his business and trade would increase. There is a large apartment complex being built near the Canelands Shopping Centre as well as a new lagoon development precinct. These developments are likely to bring more visitors to the area on the weekend and Mr Symonds considers that local businesses should be allowed to operate in this market. When Mr Symons has been at his shop on Sundays, he has seen people at the Shopping Centre doors trying to get in, not realising that the centre is closed. In Mr Symons' opinion, this demonstrates that there are people in Mackay who are tourists or who have recently moved to Mackay who expect shops to be open on Sunday.

[85] Mr Symons agreed, under cross-examination, that when he bought his business, and became a tenant of Canelands Shopping Centre, he was aware that the Centre was not open on Sundays. Mr Symons said that he was not aware that Canelands could open on Sundays if Centre Management chose to do so. In response to a question from the Commission, Mr Symons said that if large retailers in the Canelands Centre were not open on Sundays, then there would be no benefit to him in opening his establishment, as he required through traffic to make his business successful.

[86] Ms Ward owns and operates a Gloria Jeans franchise at the Mt Pleasant Shopping Centre and has lived in Mackay and operated the franchise for approximately five years. Ms Ward is unable to open her shop on Sundays as the centre is closed. Ms Ward supports the NRA's application and if it was granted would open on Sundays. Ms Ward said that she often received customer feedback stating that they would like the store to open on Sundays. A few years ago, Ms Ward polled every customer on a particular day about whether they supported Sunday trading, and 90% said that they were in favour.

[87] Ms Ward is often in her store on Sundays preparing for the next week's trade, and sees people at the doors of the shopping centre who do not realise that it is closed. Ms Ward has also observed cars lined up to get into the Bunnings car park on Sundays and believes that if she was able to trade on Sundays, some of these consumers would also frequent her business.

[88] In response to a question from Ms Schinnerl from the AWU, Ms Ward confirmed that work on Sunday would be voluntary for her employees. Under cross-examination, Ms Ward agreed that if her establishment was not in a shopping centre that is closed on Sundays, she would be able to open. Ms Ward said that if allowed by Centre Management, she would open on Sundays even if major retailers did not, but would prefer that all retailers were open to create a bigger drawcard.

[89] Mr Wallace said that Woolworths supports the NRA's application, and will trade the allowable hours if it is granted. Sunday trading will deliver operational efficiencies to Woolworths Mackay stores, in the following ways:

 relieving congestion at registers on Saturdays, ensuring a more efficient use of trolleys and generally improving the service environment;  more efficient production flows within the meat and bakery departments without peaks and troughs caused by Saturday shutdowns and Monday start ups, allowing a wider, fresher range of product to be available to consumers over all trading hours;  better efficiencies of energy usage as refrigeration and air conditioning systems must currently continue to run when the store is closed;  smoothing of peaks in scheduled deliveries and the store replenishment process providing a more efficient work environment for staff and a better shopping environment for customers; and  the cost of operating six day trading stores is higher than seven day trading stores, because the incidence of dumping products with short shelf lives such as delicatessen items, sea food and meat is much higher in six day trading stores, and the current dump and clearance rate in Mackay stores is nearly twice that of Townsville stores, which trade on seven days.

[90] Under cross-examination, Mr Wallace said that he had not calculated the additional profits Woolworths would derive from Sunday trading in Mackay. Given that there had been a reduction in markdowns and dumping of food in Townsville as a result of Sunday trading, it could be concluded that this had increased gross profit. The difference in monthly markdowns between the Mackay and Townsville stores is approximately $50,000 in gross profit per month, so it is expected that the introduction of Sunday trading in Mackay would reduce loss by $50,000 per month. However, Mr Wallace maintained there had been no real difference in bottom line profit in Townsville, following the introduction of Sunday trading. Mr Wallace rejected the proposition that the objective of Woolworths in supporting Sunday trading in Mackay was to make a profit. Mr Wallace said that while it was important for any business to make a profit, Woolworths looked at Sunday trading in terms of improving efficiencies and providing service to customers.

[91] Mr Wallace also said that customers were asking Woolworths to trade on Sundays. It is fair to assume that potentially Woolworths would profit from Sunday trading and that Woolworths is in business to make a profit. However, profit was not part of the psyche of Woolworths when it made the decision to support the NRA's application for Sunday trading in Mackay. It is also not in Woolworths psyche to remove competition. In response to a question from the Commission, Mr Wallace said that when Woolworths supports an application for Sunday trading, profit is not its primary objective, but there is an expectation that eventually Woolworths will profit from Sunday trading. The initial decision is about supporting consumer demand.

[92] Ms Green said that Lend Lease Retail supports the NRA's application, and is confident that if it is granted, the majority of tenants will trade on Sundays and holidays. According to Ms Green, shopping centres no longer compete only in the retail market, they also compete in the broader leisure and entertainment market. As such, shopping centres should be able to create the opportunity for social interaction and family activity on the same terms as sporting events, concerts, movies, restaurants, hotels and gaming facilities. To compete effectively in all markets, Lend Lease Retail strongly believes that all tenants at Canelands Central should be able to trade on all seven days of the week if they wish.

[93] According to Ms Green, Canelands Central should be allowed to trade on Sundays because:

 it allows more efficient use of capital to offset rising costs, a number of which are attributable to government and local government taxes and an increasing range of compliance costs;  the centre will be able to compete on an even playing field with other segments of the broader leisure and entertainment market and with other retail formats; and  the Centre will be more competitive against "big box" retailers and new retail formats such as homemaker centres and direct factory outlets, which are attracting traditional shopping centre tenants, and are allowed to trade over seven days.

[94] Ms Green also pointed to the lost and escape expenditure for the tenants of Canelands and other retailers. Retail sales which do not occur on Sunday may not be postponed until Monday. Consumer expenditure does not escape to other parts of Queensland, but rather, is spent on other economic activities on Sundays such as hotels, restaurants, movies and other entertainment and leisure activities, to the longer term detriment of retailers. Lost consumer expenditure also has harmful effects on other industries such as those which supply services to shopping centres.

[95] Ms Green said that Lend Lease has been evaluating the benefits of the introduction of Sunday trading for Canelands Central for some time and had commissioned a Report into the subject. The Report disclosed that wherever Sunday

trading has been introduced the results have generally been positive for the total retail sector in the particular state or region. Extended shopping hours have stimulated retail activity by increasing the availability of retail stores, with the consequence that capital in those stores has been more effectively utilised. The Report also disclosed that positive effects of extended trading hours were clearly demonstrated in Victoria, with employment in the retail sector increasing by 10% within five years of deregulation, and annual average sales growth increasing by 4.9% in comparison with an increase of 2.2% for the rest of Australia. In respect to south-east Queensland, the Report found that since Sunday trading was introduced in 2002, retail sales growth per head has been significantly higher in Queensland at 7.7% annually, compared with only 4.5% for the three years before deregulation. In comparison, the overall increase in retail sales per head across Australia has been basically stable over the five year period averaging 5.3% for the period 1999-2002 and 5.6% from 2002-2004.

[96] The Report concludes that a clear distinction is evident between the retail sales growth recorded in Queensland before and after the introduction of Sunday trading in south-east Queensland in August 2002, and also with that of other states over the same period. Further, the Report pointed out the positive effects arising from the introduction of seven day trading in Cairns in 1995, with business register data showing that for the period from 1996-1998, there was an increase in the number of retail businesses in Cairns and a fall in the number of non-retail businesses for the same period. The number of small retail businesses remained constant and the number of non-retail small businesses fell. This information shows that the retail sector in Cairns generally fared much better between 1996 and 1998, than all other industries in the Cairns region. The Report itself was not appended to Ms Green's witness statement and the author of the Report was not called as a witness.

[97] Under cross-examination, Ms Green said that she had not conducted a formal survey of tenants, and was basing her view that they would trade on Sundays, on feedback from Centre Management team members who had held discussions with retailers. It was expected that services such as banking would not operate on Sundays should the application be granted. Ms Green said that she had no specific evidence about the attitude of retailers, and no evidence about whether there were different attitudes to Sunday trading on the part of exempt retailers as opposed to non-exempt retailers, other than feedback from the Centre Management Team who regularly had dealings with all retailers in the Centre.

[98] As Regional Manager for Big W Discount Stores, Mr Waters controls 45 stores throughout Queensland and New South Wales, including a store at Canelands Shopping Centre. Big W supports the NRA's application, and if it is granted, the Big W store at Canelands would trade on Sundays and certain public holidays. According to Mr Waters, major retailers like Big W make an important contribution to the shopping infrastructure of regional towns and cities, and the scale and diversity of these stores helps revitalise local shopping precincts and limits escape expenditure. Big W has sixteen stores in non tourist areas, which trade on Sundays. The percentage of total trade on Sundays for stores in the greater Brisbane area ranges from 11% to 20%. The Mackay Big W store is one of the top three stores in Queensland, and is one of the top twenty stores in Australia, in terms of sales volume. It is expected that the store will perform at a similar or higher level if Sunday trading is introduced to Mackay.

[99] All of Big W's regional stores across Australia trade on Sundays, except non-tourist regional stores in Queensland (excluding Townsville) and WA Stores (excluding Mandurah). Big W stores in Whitsunday, Nambour, Cairns and Townsville trade on Sundays and the percentage of total trade on Sundays for those stores ranges from 9.5% to 15%. Mr Waters said that there is already substantial retail activity in Mackay on Sundays, with many of the retailers who trade on Sundays offering products sold in Big W stores. A large retailer such as Bunnings stocks up to 50% of Big W store items.

[100] Mr Waters said that it is estimated that approximately 75% to 80% of Big W's product range can be purchased at another retailer on Sundays or holidays in Mackay. This means that Big W misses out on an opportunity to offer its product range to its customer base, and customers who shop elsewhere on Sunday are confused. This concerns Big W as it is unable to provide its product range and services on Sundays to regular and new customers, diminishing its ability to build customer loyalty.

[101] The product range of Big W's competitors is very diverse. These include hardware stores which now incorporate items such as kitchen utensils and home wares and discount stores stocking apparel and large electrical appliances. Homemaker centres anchored by large retailers such as Bunnings are dynamic Sunday traders. There are two such centres in Mackay - Greenfields and Northpoint - and they operate with a significant trading advantage over Big W. Sunday trading will also provide operational benefits, allowing Big W to receive stock from its distribution centre on Saturdays in peak trading times, enabling filling to occur prior to opening on Sunday. Big W would also be able to receive loads on Sunday enabling the store to be replenished on Monday prior to opening. This will generate efficiency in the handling and moving of inward stock and diminish delays that may otherwise be caused by stock replenishment. Customers will benefit from a fuller range of product on store shelves.

[102] It was put to Mr Waters in cross-examination that Sunday trading would have an impact on family owned businesses and cause those businesses to lose trade. Mr Waters said that while there would be an overall increase in weekly trade if Sunday trading was introduced, approximately 75% of trade on Sundays would come from reductions in trade for Saturdays or Mondays. These figures were derived from the experience in Yeppoon. When asked which retailers would miss out if Big W was allowed to trade on Sundays, Mr Waters said that extra sales traditionally came from bulky goods warehouses that are already trading on Sundays. Mr Waters also said that sales could simply increase because people who came in on Sundays looking for one article might buy other additional articles.

[103] Ms Singh said that if the Sydney Street Markets is given the opportunity to trade on Sundays, Macquarie Country Wide Trust is confident that the majority of retail tenants will participate, notwithstanding that participation will be on a voluntary basis. Sales lost as a consequence of the closure of tenants on Sundays are not, in many cases, postponed until Mondays. A significant proportion are lost forever as consumers (if travellers) pass through the city to other destinations, or (if residents) dispose of their discretionary dollar in a leisure or entertainment activity which is accessible on Sundays, such as hotels, restaurants, movies or poker machines. Most of these activities are not subject to any trading hours restrictions and it is to the detriment of retailers when household expenditure is diverted to those other activities because shopping centres are forced to close.

[104] Under cross-examination, Ms Singh said that the doors of the Sydney Street Markets are actually open on Sundays and there are three exempt retailers who currently trade. Other exempt retailers do not because they do not find Sunday trading beneficial in circumstances where the Coles Supermarket is closed. According to Ms Singh, ten to twelve retailers in the Sydney Street Markets are currently permitted to trade on Sundays. Ms Singh said that there had not been a formal survey about whether retailers in the Sydney Street Markets would trade if the NRA's application was granted. The view that the majority would trade was based on feedback from tenants received by the Centre Manager. All retailers had been spoken to in order to obtain their views, but Ms Singh was unable to provide a breakdown of numbers for and against Sunday trading. Ms Singh also said that in her experience, the issue of whether or not tenants traded on Sundays had no impact whatsoever on their rent. Ms Singh said that she could not give an assurance that rents would not go up as a result of Sunday trading, but in her experience this did not happen.

[105] Ms Singh said that none of the tenants in the Sydney Street Markets were currently paying percentage rent, but there was a possibility that some may fall into the threshold if their trade increased as a result of Sunday trading. The Coles Supermarket in the Sydney Street Markets has a provision for percentage based rent in its lease, and Ms Singh agreed that this is not an uncommon provision. It is possible as a result of Sunday trading, that Macquarie Asset Management would make an increased profit if the level of trading of tenants in the Sydney Street Markets increased. In response to a question from the Commission, Ms Singh confirmed that the Sydney Street Markets had only been open for two years, and that Macquarie Asset Management was fully aware that there was only six day trading in Mackay when the centre opened.

[106] Mr Winzenberg said that Target Australia supports the NRA's application, and if granted, its Mackay Store, located at the Canelands Shopping Centre, will trade on Sundays and holidays. Target Australia believes that its capital investment in its stores located in regional Queensland should be able to be utilised over seven days of the week, just as it is elsewhere. Seven day trading is particularly important in retail environments such as Townsville and Mackay, where significant sections of retail have been trading over seven days for many years. Many of these traders are large retailers who sell products similar to those stocked on the shelves of Target stores.

[107] Under cross-examination, Mr Winzenberg said that it was expected that if Sunday trading was introduced 11% of Target's business would be transacted on Sundays. In Townsville there had been a reduction in Saturday trading in the order of 10%. According to Mr Winzenberg, over a week there would be a net gain of 8% to 9%, which would translate to roughly 6.9% after operating costs were taken into account. The additional business would come from other retailers but also from movies, hotels, poker machines and the like as consumers engaged in shopping instead of those other activities.

[108] Mr Allen said that the Mt Pleasant Greenfields Shopping Centre in Mackay is owned by Colonial First State Property Management Pty Ltd, which manages a diverse range of shopping centres across Australia from super regional centres to neighbourhood centres. Only three of 34 centres operated by Colonial First State Property Management Pty Ltd do not trade on Sundays. Colonial First State Property Management Pty Ltd supports the NRA's application. Mr Allan also said that the Mt Pleasant Greenfields Shopping Centre embraces both a traditional enclosed facility and also a homemaker type facility which is located on the other side of the shopping centre access road. The enclosed part of the centre is anchored by Kmart, Woolworths, Coles and Best and Less, while Bunnings is the anchor tenant of the homemaker section.

[109] Some other major retailers are located on adjacent land including the Warehouse, Toys R Us, Auto Barn, Clark Rubber, Spotlight, Amcal Pharmacy and the Mackay Pet Superstore. Colonial First State Property Management does not believe that it can develop its Mt Pleasant Greenfields asset to its full value and potential if only part of the centre is able to trade over all seven days of the week. It is of particular concern that over time, it will become more difficult for the centre to attract prominent brands or national chains if it does not convert to seven day trading.

[110] According to Mr Allan, many of the centre's tenants want to trade over seven days, and this is understandable, as overheads do not increase when stores shift from six day to seven day trading. The cost of fitting out and stocking a store does not alter, and rents remain the same. In the circumstances, Mr Allan said that it is logical that tenants want to be able to trade over seven days. Six day trading diminishes the attractiveness of the destination (in terms of selection etc.) for major retailers and national chains, compared to other centres located within seven day trading zones.

[111] Mr Allen agreed, under cross-examination, that the Mt Pleasant Shopping Centre could open on Sundays in current circumstances, but said that this was not financially viable for small retailers unless the larger ones were also able to trade. Mr Allen also agreed that this was because the owners of the Centre would charge smaller retailers for the costs of opening the Centre on Sundays, and it was the decision of the Centres' owners not to open on Sundays on this basis. Mr Allen said that there are 15 exempt retailers in the Centre, and some had concerns about Sunday trading. These concerns were in relation to the extra cost of labour, and potential loss of business if they did not open. Mr Allen said that these retailers had been assured that if Sunday trading was granted it would not be compulsory for them to trade.

[112] Mr McBryde said that the Colorado Group operates 450 stores across Australia operating under the divisions of Colorado, Mathers, Williams the Shoemen, Jag, Diana Ferrari and Pairs. The majority of those stores trade on Sundays. The Group operates four stores in the Mackay area. Colorado stores in the greater Brisbane area have been trading on Sunday since August 2002.

[113] According to Mr Stout it is more efficient for supermarkets to trade on all seven days of the week for the following reasons:

 refrigeration must be maintained when the store is closed and the impact of this overhead is diminished if revenue is able to be generated over seven days;  there is no requirement to run perishable stock down or deplete stock on Saturday before closure, which is an inefficient practice on the busiest trading day of the week; and  there are inefficiencies arising from the "start up" of six day trading supermarkets on Mondays following the closed day on Sundays.

[114] Mr Stout, in also representing Kmart Australia Pty. Ltd., said that the NRA's application is also supported by that organisation. Kmart operates one store located in the Mt Pleasant Shopping Centre in North Mackay. Kmart is strongly of the view that the trade of its Mackay store is not optimised under a six day trading environment. Relevant factors include:

 Kmart's principal competitors (other than Big W) currently trade on Sundays and Kmart's appreciation of the market informs it that Sundays are either the best or second best trading day of the week for many of its product categories;  Kmart's Mackay store performs very strongly in categories or product lines which are sold by competitors who currently trade on Sundays;  data from other Kmart stores which trade over seven days of the week show that Sunday is a strong trading day, particularly when regard is had to the short number of hours traded on that day; and  experience from Sunday trading stores across Australia is that Kmart's customers want to shop with Kmart on Sundays.

[115] Six day trading is unreasonably disadvantaging Kmart's Mackay store according to Mr Stout's evidence. Such a disadvantage has the potential to negatively influence future investment decisions about the store. There are many retailers in Mackay currently trading on Sundays who sell products sold by Kmart, including Bunnings, Harvey Norman, Super A Mart, Super Cheap Auto, Crazy Clarks, the Warehouse, Toys ‘R' Us, BCF, The Good Guys and A Mart Allsports.

[116] Kmart stores in Brisbane have been trading on Sundays since August 2002. All of these stores trade well on Sundays, with that day representing 10.2% of the average trade for the week. Across Australia, 147 or 86% of Kmart stores trade on Sundays and in Queensland, 29 of 37 stores trade on Sundays. Data from selected regional

stores indicates that Sunday trading comprises between 9.5% and 11.6% of total trading for the week, with Thursdays and Saturdays being the next busiest days. According to Mr Stout, if those stores can trade successfully on Sundays then there is no doubt that Kmart's Mackay store will also be successful. This is further demonstrated by the fact that the Kmart Townsville store which commenced trading in September last year, has been trading very well on Sundays and is already reporting proportionate sales outcomes to those in established Sunday trading stores. This outcome is achieved despite the fact that there is a late opening time of 11.00 a.m. for the Townsville store.

[117] In cross-examination Mr Stout said that he was aware of the current ACCC Inquiry into grocery pricing and that it demonstrates that Coles and Woolworths control 80% of the grocery market in Australia. Mr Stout was not aware that there had been submissions to the Inquiry to the effect that Australia has the highest level of food inflation in the OECD. In response to a question as to whether Sunday trading would lead to increased profitability, Mr Stout said that the current trend shows that there would be an incremental boost in sales, but an increase in sales does not mean there is a corresponding increase in profit. In response to a question from the Commission, Mr Stout said that the organisations he represents would not be supporting the current application if they were going to make a loss.

[118] Mr Kilsby owns and operates a book store located at the Sydney Street Markets. Mr Kilsby supports the NRA's application to extend trading hours in Mackay. Mr Kilsby's business previously traded on Sundays, but stopped because it was not profitable. According to Mr Kilsby, this was for two main reasons. First, there is a smaller volume of people coming through the centre in comparison to week days and Saturdays, because the major retailer Coles supermarket is not open on Sundays. Secondly, it is more expensive for Mr Kilsby to trade on Sundays because the centre's operating costs are split between the tenants who operate on any one particular day based on the floor space the tenant occupies. If the NRA's application was successful, Mr Kilsby would resume Sunday trading.

[119] In Mr Kilsby's view, people are attracted to the major retailers to do their grocery shopping and there is a benefit for retailers such as himself from the traffic flow. Sunday trading would also mean that Coles, as the largest retailer in the centre, would bear most of the centre's operating costs. As a result, Sunday trading in the circumstances where all retailers in the centre were permitted to trade would be profitable for Mr Kilsby's business.

[120] Under cross-examination, Mr Kilsby said that he had not done any qualitative or quantitative research about the profit he would derive from Sunday trading, but maintained that when Coles had opened in the lead up to Christmas, the trade for his store had been similar to that on other days of the week. Mr Kilsby agreed that this was because books were purchased at this time as Christmas gifts and that all retail was up at this time anyway.

[121] Ms Podnar said that Jeans West operates 191 stores across Australia, the majority of which trade on Sundays. Jeans West operates a store at the Canelands Shopping Centre and supports the NRA's application for extended trading in Mackay. Sunday is a successful trade day for Jeans West and forms an important part of its sales calendar. Jeans West has three stores in Townsville. One store in Townsville has traded on Sundays for some time and the other two stores have recently commenced. All of these stores trade successfully in a reduced Sunday trading period. Jeans West is confident that its store at Canelands will also trade very well, if allowed to open on Sundays and certain public holidays as sought in the NRA's application.

[122] Ms Cooper said that her newsagency currently trades on Sundays between 6.00 a.m. and 11.00 a.m. The anchor tenant at the Walkerston Shopping Village where Ms Cooper's newsagency is located is Woolworths. If Woolworths opened on Sundays and public holidays as sought by the NRA's application, Ms Cooper would expect that trade at her newsagency would increase, because Woolworths would attract customers to the centre. According to Ms Cooper, if shoppers need to purchase groceries, there is a good chance they will do so at a shopping centre that contains one of the large supermarket chains. Current trading hours arrangements discourage customers from coming to Ms Cooper's shop because it is the only shop currently open in the centre on a Sunday and people will not drive to Ms Cooper's shop to purchase the newspaper only. If Sunday trade was introduced, Ms Cooper would be likely to extend her trading hours until after lunch time, and if the day was half as busy as Saturday, Ms Cooper would most likely open for the entire day and employ a casual.

[123] Under cross-examination from Mr Driscoll for the QRTSA, Ms Cooper said that she had not undertaken research about the effect of Woolworths trading on Sunday on her trade, and based her view that her trade would improve on a "gut feeling". Ms Cooper also said that if Mackay was granted Sunday trading and Walkerston was not, that she would lose business.

[124] Mr Harris said in his evidence in chief that Universal owns and operates 11 stores in Queensland, and of those stores Mackay is the only one that does not trade on Sundays. Universal supports the NRA's application. While Universal stores are deemed to be independent and therefore exempt from the trading hours restrictions applicable to non-exempt stores, the company is still precluded from trading on Sundays in Mackay because its Mackay store

is located at the Canelands Shopping Centre which does not open on that day. Other stores operated by Universal in Queensland trade very successfully on Sundays, with approximately 12% of weekly trade occurring on that day. Mr Harris is confident that Universal's Mackay store will also trade very well if the shopping centre in which it is located is able to open on Sundays and certain public holidays.

[125] Under cross-examination from Mr Driscoll, Mr Harris said that if Canelands was open on Sundays in the present circumstances, it would not resolve the issue of Sunday trading because the major retailers in the Centre would not be allowed to open. According to Mr Harris, you need the pulling power of the major retailers for Sunday trading to be successful. Even if all independent stores opened on Sundays there may not be sufficient numbers to attract customers to the Centre in the absence of the major national retailers opening. Mr Harris said that he would expect trade to increase if Sunday trading was granted, but did not know whether additional trade would come from competitors. There would be an initial kick because of the novelty of Sunday trading and then it would settle down and become a reasonably strong day.

[126] Mr Harris agreed that Universal could have opened its Mackay store outside a shopping centre, but said that the company's model did not work outside centres. The company has some high street stores which are not located in shopping centres, but these stores are in the Brisbane city heart (just off the Queen Street Mall and in Fortitude Valley). Mr Harris said he had actually signed the lease for the Mackay store without realising that the centre it was in did not trade on Sundays. Mr Harris rejected the proposition that his support for the NRA's application was to correct this oversight saying that sites for stores were chosen on annual turnover per square meter. Mr Harris said that the fact that the centre did not trade on Sundays was a better result when the site was analysed as staffing costs were lower. According to Mr Harris, Universal would have opened its store in Mackay regardless of the NRA's application or the prospects of that application succeeding.

[127] Mr Chapman said that the SSI Group, on behalf of WOW, supports the NRA's application. WOW trades in what are termed "brown goods", such as computers, telephones, car radios, CDs, printers, cameras and other electronic equipment. Sunday is one of the peak trading days for WOW and is the preferred shopping day for many of its customers. WOW operates twelve electronic and entertainment superstores across New South Wales, Queensland and the Northern Territory. Where possible, stores trade over all seven days of the week. While the majority of stores are company owned, in some instances, because of the operation of trading hours laws, stores are franchised so that the brand can continue to service customers on one of the most significant trading days of the week. In Mackay and Toowoomba stores are operated under a franchise agreement and are able to trade on Sundays. It is the preference of the SSI Group that all of its stores be able to trade under uniform trading hours arrangements wherever located in Queensland.

[128] Sunday trading on average accounts for 23% of total weekly sales, and at least 50% of total business is written on weekends. WOW's customer demographics are quite diverse, catering for the youth market with computers and game software up to and including the top range European appliances for the premium end of the market. The new home market and building renovation sector is also a major focus for the company's operations with respect to appliances.

[129] Under cross-examination by Mr Driscoll, Mr Chapman said that WOW already trades on Sundays in Mackay, as it is an independent retailer for the purposes of the legislation. However, the company is subject to limitations on its ability to trade in that it can only have a maximum of twenty employees on the floor at any one time. This limitation makes it very difficult to operate the store in the required manner. A pool of sixty employees is needed to ensure that there are twenty available each Sunday. The Mackay store is a stand alone company owned by the SSI Group and is not a related corporation to WOW. The Mackay store has a franchise agreement. The Toowoomba store is operated under similar arrangements.

[130] When asked why WOW is supporting the NRA's application when its Mackay store already trades on Sundays, Mr Chapman said that to be able to trade on Sundays and not have a limit on staffing levels would make a big difference to the ability to trade properly. It is not of concern to WOW that if Sunday trading is permitted its competitors will also be able to trade, because WOW is competing with those other stores in any event. Mr Chapman also said that the viability of the Mackay store would be maintained even if the NRA's application was not granted. In response to a question from the Commission, Mr Chapman said that WOW's stores were either stand alone or were located in shopping centres developed by the company.

[131] Ms McDonald began operating her Donut King franchise in November 2007. She is unable to open on Sundays because the Canelands Centre where her business is located does not open on Sundays. Ms McDonald supports the NRA's application for extended trading hours and would trade on Sundays if that application was granted, as she believes it would be profitable for her business. Ms McDonald sometimes comes into her store on Sundays when the centre is closed, and has witnessed people trying to enter through the doors of the shopping centre.

[132] Mr Reseck said that he supports the NRA's application for extended trading hours, and understands that if it is granted the anchor tenants of Canelands Shopping Centre and other major retailers including national chains will be able to trade on Sundays and certain public holidays. The decision in this matter is important to Mr Reseck, because his franchise in the Canelands Centre is unable to trade on Sundays due to the centre being closed. Mr Reseck's understanding is that the Canelands Centre is closed on Sundays because major retailers and national chains are prevented from trading on Sundays. All of Mr Reseck's outlets, with the exception of Canelands, trade over seven days. The closure of Canelands on Sundays and holidays is detrimental to Mr Reseck's business and affects his net profitability and return on investment.

[133] As a tenant of Canelands, Mr Reseck's principal costs of operation are the costs of goods sold, labour and rent. Rent remains the same regardless of whether the centre trades over six or seven days, and outgoings are not expected to increase, making Sunday trading extremely attractive. Another relevant factor is that shopping centre rents are high and the proceeds from Sunday trading will make a significant contribution to Mr Reseck's weekly rental cost.

[134] According to Mr Reseck, the Mackay economy is booming and its population is rapidly expanding. All of Mr Reseck's franchise outlets are trading strongly and showing good year on year growth. Mr Reseck said he is confident that the Mackay population will support Sunday trading. An increasing part of Mackay's population has migrated from seven day trading areas and people now expect seven day trading. Many retailers in Mackay trade on Sundays, and in Mr Reseck's opinion the numbers of cars going into Bunnings, Harvey Norman and other similar retailers on Sundays illustrates that the majority of people want to shop every day. Mr Reseck is also of the view that Mackay should cater for the needs of the travelling public and tourists on Sundays, and offer the same retail services as Townsville and Cairns where Sunday trading is permitted.

[135] Mr Dorman said that JB Hi Fi supports the NRA's application. JB Hi Fi stores offer the world's leading brands of hi fi, speakers, televisions, DVDs, VCRs, cameras, car sound, home theatre, computers and portable audio, and stock an exclusive range of specialist hi fi products. JB Hi Fi also offers the largest range of video games, recorded music, DVD music and DVD movies with over 50,000 CDs and most major studio DVD releases. JB Hi Fi has 104 stores across Australia, including regional stores in Townsville and Toowoomba. Except for five suburban Perth stores and the Toowoomba store, all stores across Australia trade over seven days. Mr Dorman provided statistics to indicate that where applicable, Sunday trading accounts for up to 15% of JB Hi Fi's total weekly sales. Additionally, 35% to 40% of total business is written on weekends. According to Mr Dorman, consumers prefer to shop for JB Hi Fi's products on Saturdays and Sundays. A prohibition on Sunday trade for the company's stores is commercially untenable, and substantially restricts the capacity of those stores to trade profitably. Given that the majority of competitors trade on Sundays, any JB Hi Fi store that cannot trade is severely disadvantaged.

[136] Under cross-examination by Mr Driscoll, Mr Dorman said that JB Hi Fi does not currently have a store in Mackay, but it was hoped that a proposed store would be open some time in 2009. That store would probably be located in a shopping centre. Mr Dorman said that he was aware that shopping centres in Mackay currently do not open on Sundays and that JB Hi Fi would be a non-exempt retailer. When asked whether it would alter the position of the company about opening a store in Mackay if the NRA's application was not successful, Mr Dorman said that he was not in a position to answer that question.

[137] Ms Moura said in her evidence that the Specialty Fashion Group (SFG) comprises the Katies brand, Miller's Fashion Club, Crossroads, Autograph, Queenspark and City Chic, with approximately 785 stores across Australia. The majority of SFG's stores trade on Sundays because they are located in areas where Sunday trading is permitted. SFG supports the NRA's application because Sunday is generally a successful trading day, comprising 10% of weekly trade. SFG stores located in Townsville are trading successfully on Sundays. SFG has two stores in Mackay, one located at the Mt Pleasant Shopping Centre and the other at the Canelands Shopping Centre. The company is confident that these stores will trade well if the shopping centres in which they are located are allowed to trade on Sundays and certain public holidays. Under cross-examination, Ms Moura said that she was not sure exactly how long SFG had operated stores in Mackay, but that they had been there for quite a few years.

[138] Ms Cristaldi said in her evidence that Lorna Jane owns and operates 40 stores across Australia, including a store at the Canelands Centre in Mackay. Lorna Jane supports the application by the NRA. The majority of Lorna Jane stores across the country trade on Sunday wherever this is possible and trade on that day is generally strong. Lorna Jane has a store in Townsville which has recently started trading on Sunday, and trade on that day has been successful. Under cross-examination from Mr Driscoll, Ms Cristaldi said that all stores are considered to be independent, as the company has around thirty employees in Queensland and only one person on the floor in each store at any one time. Ms Cristaldi said that Lorna Jane had operated a store in Mackay for some time, and she did not know if the prospect of Sunday trading for the major retailers in Mackay played any part in the commercial decision to set up a shop in Mackay. The store would still be viable if the NRA's application was not granted,

although it would assist with its commercial viability if the application was granted. Ms Cristaldi also said that it would not be viable to trade on Sundays if only a small number of independent retailers in a centre were also open.

[139] According to Ms Cristaldi, Sunday trade for Lorna Jane stores is between 9% and 20% of total weekly trade with an average across stores of 13% and can vary depended on the time of year. The average for Saturday trade is around 15%. In response to a question from the Commission, Ms Cristaldi said that it was not Lorna Jane's policy to locate stores in shopping centres, and location was based on availability. When stores are to be located in new centres or new areas, the company tries to get a mall type store, like the one in Queen Street Mall in Brisbane.

[140] Mr Dever said in his evidence that City Beach stocks leisure fashion and is the market leader in surf, skate and urban clothing. The company operates a total of 52 stores across Australia and employs some 963 store based employees. City Beach supports the NRA's application and its Mackay store located in the Canelands Shopping Centre will trade on Sundays if the application is granted. The proportion of weekly trade on Sundays for City Beach stores ranges from 8.94% to 15.70% of total trade. Sunday trading has generated incremental sales for all stores, and following its introduction in Brisbane, weekly sales on average increased by 8.6%. The busiest trading period is towards the end of the week with Thursdays and Saturdays being the dominant trading days in six day trading stores. Sunday trading would involve a natural extension of this trend and provide sales proportions similar to those generated in South East Queensland stores.

[141] According to Mr Dever, Sunday trading in Townsville has taken off very well and Sunday has now become the fourth best trading day of the week, after Thursday, Friday and Saturday. It is expected that the Mackay store on Sundays will trade similarly with Townsville and generate between 9% and 12% of weekly sales. Under cross- examination by Mr Driscoll, Mr Dever said that he based his view that Sunday trading would involve an extension of the trend in other stores, on experience rather than firm research or polling. Mr Dever is not aware of where additional sales would come from, or whether there would be a shift in sales from competitors. When the City Beach Townsville store commenced Sunday trading there had been almost a 10% increase in the first week of trading, and a significant proportion of that increase was on Sunday. Further, the increase on Sundays had not come from trading on other days.

[142] Ms Miles said in her evidence that the Diva brand comprises 153 company owned stores across Australia and New Zealand. Diva supports the application by the NRA and the majority of its stores across Australia trade on Sundays wherever this is possible. Diva has two stores in Townsville which have recently started trading on Sundays and this has been successful. Diva operates a store at the Canelands Shopping Centre in Mackay and is confident that this store will also trade very well if the centre is allowed to open on Sundays. Under cross-examination from Mr Driscoll, Ms Miles said that she was not aware that Canelands Shopping Centre would be permitted to open its doors on Sundays even if the present application was not granted. Ms Miles also said that she had not undertaken formal research into possible Sunday trading figures in Mackay, but had based estimates on figures for Townsville, where Sunday trading had recently commenced. In re-examination, Ms Miles said it had been concluded on the basis of Townsville figures, that Sunday trading in Mackay would be similar to the levels of trade on Mondays.

[143] Ms Hourigan said in her evidence that the Angus and Robertson brand comprises 41 company or franchised stores in Queensland and over 160 stores nationally. The company operates two stores in Mackay, located at the Mt Pleasant Shopping Centre and the Canelands Shopping Centre. Angus and Robertson supports the NRA's application. While its stores are exempt from trading hours regulations, they are precluded from trading on Sundays where they are located in shopping centres in parts of Queensland where seven day trading is prohibited for major retailers. Wherever possible Angus and Robertson's stores trade on Sundays, and do so successfully. When seven day trading was extended to the Townsville and Thuringowa areas, it was a huge success, with all three stores in that area reporting a substantial increase in their weekly figures overall. Customer feedback has also been very positive. The company is positive that its Mackay stores will trade very well if Sunday trading is granted.

[144] Under cross-examination by Mr Driscoll, Ms Hourigan was asked whether she knew that the shopping centres where Angus and Robertson stores are located could currently open their doors on Sundays. Ms Hourigan said that in order for Angus and Robertson to participate in that trade, the entire shopping centre, or at least the majority of tenants, would need to be trading. Ms Hourigan also said that if the shopping centres were open and independent or exempt retailers were trading, Angus and Robertson would open on a trial basis, notwithstanding that Coles and Woolworths were not permitted to open. Ms Hourigan said that she presumed that Angus and Robertson had opened stores in Mackay knowing that Sunday trading was not allowed for exempt retailers. Ms Hourigan agreed that Angus and Robertson stores in Mackay are trading successfully in the current environment.

[145] Mr McMurtrie is a working partner at Terry White Chemists Mackay and also Canelands Medical Pharmacy. Both of these stores currently trade over six days of the week. Mr McMurtrie is opposed to the NRA's application because he believes that the negative impacts on small business and the community will outweigh any potential

benefit. Current hours of opening are more than sufficient to service the needs of the community. There are already five other pharmacies offering seven day trading in the Mackay district, which is more than adequate to service a community of this size. The shopping centre in which Mr McMurtrie's businesses are located, trades on the two Sundays prior to Christmas. When the hourly takings for Sunday trading on those days are compared against other days of the week, they are substantially reduced. The period leading into Christmas is the peak trading time in retail, and if Sunday trading were to be successful, this would show in the figures from those Sundays. This has not been the case.

[146] Under cross-examination by Mr Black, Mr McMurtrie maintained that trading on the two Sundays before Christmas is less than any other day of the week preceding Christmas. Mr McMurtrie had worked in that pharmacy since 1991 and this had always been the case. One of the pharmacies is closed early due to low levels of trade. Mr McMurtrie did not have data to establish that this is the case. It was put to Mr McMurtrie that it is a phenomenon in regional centres which do not have Sunday trading, that trading on the first of the two Sundays prior to Christmas on which trading is allowed, is slow. Mr McMurtrie said that this would not surprise him, and agreed that on the second Sunday prior to Christmas in 2007 when Sunday trading was allowed, his stores had traded well.

[147] When figures provided by Ms Melanie Green about the traffic through the Canelands Centre on 23 December 2007 were shown to Mr McMurtrie, he said that he had attended a meeting two months prior to giving his evidence, where he had been told by Centre management that there was a fault with the electronic door counter at Canelands and it was not accurate. Mr McMurtrie also agreed that no one from Lend Lease had said to him that he would be required to trade on Sundays if extended trading hours were granted. In response to the proposition that he did not need to open at all if he did not wish to do so, Mr McMurtrie said that it is a matter of good will and that he might lose customers if the centre was open and his store was not. It is Mr McMurtrie's intention to open only one store if Sunday trading is granted, and to keep the smaller store attached to the medical centre closed.

[148] Mr Englert is the Manager of Food Works East Mackay. The business is open seven days per week, and relies heavily on trade on Saturdays and Sundays to justify wages and stock turns. The deregulation of trading hours in Mackay will directly affect the business of Foodworks East Mackay by taking a percentage of its market share. This reduction will result in the rationalisation of wages through the reduction of staff due to reduced gross profit. Foodworks East Mackay will also be subject to higher wholesale prices as a result of the loss of its buying power, due to the increase in the buying power of the larger grocers as a result of the larger percentage in market share they will gain from the extra day trading. As a result, Foodworks East Mackay will either have to raise its prices (further assisting the larger grocers to increase their market share) or reducing gross profit resulting in either a reduction of staff or reduction or change in grocery lines, further assisting the larger grocers in obtaining market share.

[149] Reduced market share and buying power will affect the business' ability to invest in itself therefore inhibiting opportunities to grow and become more competitive in the grocery sector. Without the market share that the business has worked hard to achieve, the business will not grow or become competitive in the grocery sector. Foodworks East Mackay is also concerned at the perception that the pro and anti lobbies have been disproportionately represented in the media. In this regard, Mr Englert said that the local newspaper has printed pro-deregulation stories on at least six occasions, with such stories appearing twice on the front page. In contrast, there has been only one story in the local newspaper representing the views of those against deregulation. Mr Englert has written to the local newspaper on three occasions, and has twice been confined to the section containing "letters to the editor" which is seldom read, instead of being given the opportunity to discuss the issues in the form of a story.

[150] Under cross-examination from Mr Black, Mr Englert said that his major competitor is currently Hatfields, an IGA store and the largest independent supermarket in Queensland, which does not trade on Sundays. After Hatfields, the major competitors for Foodworks East Mackay are the large shopping centres.

[151] Mr Englert agreed that the convenience factor was significant for his customers, and that the average basket count of customers of Foodworks East Mackay is seven items. When asked if this convenience factor would alter if the IGA store was open on Sunday, Mr Englert said that this already happened when trading hours were deregulated at Christmas and Easter. At these times, levels of trade on Sundays at Foodworks East Mackay are down by up to 50%.

[152] It was put to Mr Englert that he was arguing for his business to be able to open when other retailers were required to shut. Mr Englert said that this was the protection for small businesses such as his. In Mr Englert's view this protection has been put in place under the law to create fairness for smaller businesses so that they can build up their profits to a point where they can reinvest in and grow their businesses. It is Mr Englert's desire to build up his business to the size of a Woolworths or Coles store and when he does this he will abide by the same rules as Woolworths and Coles. Until then, he will live under the protection provided by trading hours regulation.

[153] In response to the proposition that other businesses the same size as Foodworks East Mackay were already operating in other areas in a deregulated environment, Mr Englert said that those businesses had lost the entitlement to protection and would find it harder to survive. In Mr Englert's view the protection of trading hours legislation was put in place to create a level and fair playing field. When asked why the same rules did not apply in other regional areas where Sunday trading has been introduced, Mr Englert said he did not know why it had been decided to introduce Sunday trading in those areas. However, according to Mr Englert, in the present environment his business has that protection and he wishes to keep it in order to grow his business and be competitive.

[154] Mr Englert said that his store has been experiencing a rate of growth in turnover in recent years of 20% each eighteen months. When asked to indicate the percentage of total trade on each day of the week, Mr Englert said that between 25% and 30% of total trade occurred on Sundays and 20% on Saturdays, with the remainder being spread over Mondays to Fridays. Customer counts on each day are Monday 520; Tuesday 530; Wednesday over 500; Thursday above 500 (but less trade between 7.00 p.m. and 9.00 p.m.); Friday 600; Saturday 800 and Sunday between 1100 and 1200. Mr Englert disagreed with the proposition that the average customer basket on Sundays is smaller than other days of the week, saying that the average basket on Sunday is ten items and there is a tendency for customers to purchase "junk food" on Sundays.

[155] In response to the proposition that there was no reason why Sunday trade would not be similar to Saturday trade if major retailers were permitted to trade on Sundays, Mr Englert said that his business had already taken a hit on Saturday, and that if Saturday trading did not exist for major retailers, Saturday would be as good as Sunday for his business. Mr Englert was also cross-examined about the assertions in his statement in relation to loss of market power and the proposition was put to him that this was unlikely given the total buying power of Foodworks stores as a group, and the minimal effect on that buying power if Sunday trading was granted in Mackay. Mr Englert maintained that the negotiating power of independent retailers was already diminished, and every loss of market share, no matter how marginal, has an impact by giving the major retailers more market power. As a result those major retailers have greater negotiating power with wholesalers than the independent stores. Mr Englert agreed that the buying power of the independents had improved over recent years, but maintained that there was still not a level playing field.

[156] Mr Englert maintained that even though 90% of retailers in Australia are trading in an open and deregulated market, when the remaining 10% went to deregulated trading, there would be an adjustment to the buying power of the 10% and thus an adjustment to the buying power of his business. It is Mr Englert's estimate that if Sunday trading is introduced in Mackay, the market share of independent retailers will be reduced by 3% in the first year. In response to the proposition that deregulation had led to independent retailers changing the manner in which they purchase goods to reduce costs, Mr Englert said that this also meant that independent retailers no longer bought from local wholesalers, but rather bought through bulk warehouses in Brisbane and shipped goods to Mackay.

[157] Mr Black showed Mr Englert receipts for purchases of a selection of items from his store and from the Coles Sydney Street store. Those receipts showed that the total purchase price of the items was in the area of $40 from Mr Englert's store and $30 from the Coles store. Mr Englert said this result could be achieved by careful selection of items and that some items in his supermarket were more expensive and some were cheaper than those in Coles. Mr Englert also pointed to the price of $1.89 at Coles for a 1.25 litre bottle of Coca Cola, and said that his business paid more than $1.89 to the wholesaler for a bottle of Coca Cola.

[158] Ms Abbot said in her evidence that she manages the De Campo Mini Market. The De Campo business has been family owned for approximately 35 years and sells a variety of products including groceries, bread, dairy products, variety goods and fruit and vegetables. Ms Abbot is opposed to the introduction of Sunday trading and believes that it is not necessary in Mackay as the shopping centres are already open six days each week. Under cross- examination from Mr Black, Ms Abbot said that her store was not showing a great deal of growth in turnover year on year.

[159] Ms Schembri is a director and owner of Danoz Directions, located at the Mt Pleasant Shopping Centre. The business is operated by the owners Ms Schembri and Mr Michael Smith. Danoz stocks a range of home ware, gift ware, and "seen on TV" products. In Ms Schembri's view, there is only a certain amount of money that people have to spend, so their weekly spend will be spread over seven rather than six days. There is no point opening on the seventh day. The two Sundays before Christmas when Ms Schembri's business traded were average trading days compared to other days in those weeks.

[160] Up until the present time, increased freight costs have not been passed on to customers. If seven day trading is introduced, these costs will have to be passed on which will mean an increase in prices or a reduced profit margin. Under cross-examination by Mr Black, Ms Schembri agreed that in making these statements she was assuming that her business would trade on Sundays and that this would not result in any net profit for the week. Ms Schembri said that her prices would rise because of increased costs such as electricity, wages and shopping centre outgoings.

[161] In response to the proposition that she could choose not to open her store on Sundays, Ms Schembri said that although it may not be compulsory, when you are in a shopping centre environment there is an obligation to open when other stores open. Ms Schembri also agreed that of the two Sundays her store traded on before Christmas 2007, the second Sunday was busier than the first. Further, Ms Schembri agreed with the proposition that all retailers should have a choice about whether they wanted to trade on Sundays.

[162] Ms Formosa owns her cafe in the Mt Pleasant shopping centre, in partnership with her parents. They have owned the cafe since October 2005. Currently the cafe is open for business Mondays to Saturdays. Ms Formosa is strongly opposed to the NRA's application and believes that extended trading hours will result in higher operation costs such as those for rent, wages, electricity and gas for the business overall, and not a lot of money being spent by consumers. This will in turn result in lower profits and longer working hours.

[163] Ms Formosa said that over Christmas the centre opened on two Sundays to cater for Christmas shoppers. The sales for her business for those two weeks were up marginally if at all, proving that consumers only have a minimum amount of money to spend. Ms Formosa agreed under cross-examination by Mr Black, that it is common for cafes to trade on seven days of the week. Ms Formosa also agreed that there are other small business operators in the Mt Pleasant Centre who do not share her views and who want to trade on Sundays. Ms Formosa said that her lease has a clause providing for rent to increase if turnover increases.

[164] When asked whether her views about other businesses were general views only, Ms Formosa said that her family had operated a service station and corner store for many years, and had relied heavily on Sunday trade. It had been four years since Ms Formosa's family had operated this business. Ms Formosa disagreed with the proposition that of the two Sundays her business traded last Christmas the second one was busier, stating that her business had not benefited from trading on either of those Sundays. Ms Formosa also said that there had been a general expectation on the part of centre management that retailers would open on those Sundays. Ms Formosa agreed that she had shopped at Northpoint on Sundays and found it convenient to do so, because she worked on every other day of the week. Ms Formosa agreed that it is not uncommon for people to work on six days of the week.

8. THE ALLEVIATION OF TRAFFIC CONGESTION

[165] Ms Barrett said that at present she does her grocery shopping on Tuesday, because it is not as busy as other days and she finds it easier to get a parking space. Ms Barrett also shops with her mother who is elderly, and is able to park in a disabled parking space. This is difficult on Saturdays because the shops are busy. Ms McMahon also said that shopping during the week and on Saturdays is a hassle because it is difficult to get a parking space both within shopping centres and in the Mackay central business district.

[166] Mr Wallace provided figures in his statement to illustrate the extent to which congestion may be relieved by Sunday trading, showing the proportion of trade completed on Saturdays in six day trading stores, compared to trade on Saturdays after the introduction of Sunday trading, in the same stores. These figures show that there was no change in Saturday trading in two stores; in three stores there was a 1% reduction in Saturday trading, in four stores there was a 2% reduction in Saturday trading and in one store there was a 3% reduction, after the introduction of Sunday trading. The figures also showed that in most cases there was only a marginal difference in the figures for trading on Mondays to Fridays after the introduction of Sunday trading, and that trade on Sundays was between 5% and 10% less than Saturdays.

[167] In response to questions from the Commission about Townsville figures, Mr Wallace said that high figures for Sunday trading in the Townsville CBD store had resulted from the fact that for a period, that store was the only Townsville store permitted to trade on Sundays. Under cross-examination, Mr Wallace agreed that on average, Sunday trading was 3% lower than Saturday trading across Woolworths' stores, and that Mackay would probably have a similar level if Sunday trading was granted. Mr Wallace said that it would not surprise him that some consumers who had given evidence to the Commission had said that they were supporting the application for Sunday trading because they thought it would be a quiet day upon which they could shop. Mr Wallace said that this would not be the case in some centres. Mr Wallace agreed with the proposition that he would expect that Sunday trading in Mackay stores would be good, and would be at levels within three percentage points of Saturday trading levels. Mr Wallace also agreed that in a number of stores for which data was provided in his statement, Sunday trading was essentially at the same level as Saturday trading.

[168] Ms Sivyer said during cross-examination, that it was her expectation that Sunday would be a quieter day upon which to shop than Wednesdays. In response to the proposition that Sunday would be as busy as Saturday, Ms Sivyer said that as a Seventh Day Adventist, she did not shop on Saturdays, and she would try Sundays to see what the experience was like. The fact that Sundays might be busy did not decrease Ms Sivyer's support for Sunday trading as she was also interested in the social aspects of Sunday trading which included having time to wander around the shops with her husband, and to have a meal while they were out shopping.

[169] Mr Waters said that the normal distribution of trade expressed as an average across the seven days of the week for Big W regional stores in Australia shows that Sundays constitute 12% while Saturdays constitute 20%.

[170] Mr McBryde said that while Sunday is a short trading day the sales activity per hour is commensurate with what is experienced on other days of the week. The average Sunday trading for the Group's stores in Cairns ranges from 9.3% to 12.4%, and in Townsville from 8.1% to 20.5% of total weekly sales. Further, Queensland and interstate seven day trading stores in the Colorado Group are reporting top line sales growth on Sundays, which is indicative of growing customer support for Sunday trading.

[171] Mr McBryde provided figures to indicate the Sunday trading performance of a typical seven day trading interstate store located in a regional shopping centre indicating that Sunday trade accounted for between 7.73% and 14.84% of total weekly trade with the highest days being Saturdays, where the range was 18.7% to 24.57% of total weekly trade.

[172] Under cross-examination Mr McBryde said that if Sunday trading was introduced, he would expect an overall increase in trading of between 5% and 6%. Mr McBryde said that he could not give a definitive figure about the level of profit that would be generated, but that the company would "do alright". In response to the proposition that the Colorado Group would not trade on Sundays to make a loss, Mr McBryde said that no retailer in their right mind would do that.

[173] Mr Winzenberg said that Target Australia has 14 stores throughout regional Australia which currently trade on Sundays. On average 9.2% of trade occurs on Sundays, with Thursdays (20.7%), Saturdays (18.6%) and Fridays (18.3%) being the next busiest days. Trade on Sundays takes place over an average of 6 hours with trade on other days ranging from an average of 7.5 to 10 hours. Stores in the greater Brisbane area conduct on average, 11.2% of their trade for the week on Sundays, with Thursdays (21.9%), Saturdays (22%) and Fridays (15.5%) being the next busiest days. The hours of trading on Thursdays are 12, Sundays are 7, Saturdays are 8.5, and other days of the week trade for 9.5 hours.

[174] Under cross-examination, Mr Winzenberg agreed that Sunday would be a hectic day for through traffic in Target's Mackay store if the NRA's application was granted. In response to the proposition that a number of consumers had said that they expected that Sunday would not be a busy trading day, Mr Winzenberg said that it would have less through traffic than Saturday or Thursday. Further, Sunday was typically a day when there were families out shopping and purchasing items such as children's clothing and nursery furniture.

[175] Mr Stout said that the current average distribution of Sunday trade for selected Coles supermarkets in South-east Queensland is between 8.09% and 18.09%. In the same supermarkets the average distribution of trade for Saturday is between 13.54% and 18.80% and for Thursday12.87% to 18.73%. On other days of the week the minimum average trade is 10.6% and the maximum is 16.25%. According to Mr Stout, data from Coles' Annandale store, both before and after the introduction of Sunday trading, demonstrates that there has been a significant reduction in in-store congestion on Mondays and Saturdays.

[176] Mr Stout said that Kmart stores in the Greater Brisbane area have been trading on Sundays since August 2002. Under cross-examination, Mr Stout said that he would expect the proportion of weekly trade in Mackay to be similar to that in Annandale, Townsville, if the NRA's application is granted. In that store, Sunday trade is approximately 11.5% of total weekly trade and some of the Saturday and Monday trade dispersed into Sunday after trading on that day was granted. Mr Stout also said that whenever Sunday trading was introduced it consistently grew into a significant part of the business representing between 10% and 15% of total trade. Mr Stout agreed that if customers were hoping that Sunday would be a quiet day, this would not be the case as Sunday would be consistent with any other day. There would be less traffic congestion after 7.00 p.m. at night. However, Sunday trading does cause some of the congestion during the week to dissipate.

9. THE LIKELY IMPACT OF THE ORDER ON EMPLOYMENT

[177] Ms Ward said that Sunday trading would benefit her employees who would be able to volunteer to work additional hours which would be paid at penalty rates. Ms Ward might also employ additional staff to cover the extra days trade if the NRA's application was successful. Ms Ward confirmed, in response to a question from Ms Schinnerl, that work on Sunday would be voluntary for her employees.

[178] Mr Wallace said that work by Woolworths' employees on Sundays will be voluntary if the NRA's application is granted. Based on the experience in other Queensland Woolworths stores after the introduction of Sunday trading, there will be a significant increase in employment in Woolworths Mackay stores. This is estimated at 146 hours per store per week, generating an additional 37,000 hours per annum of additional employment over five stores. Figures were also provided by Mr Wallace for Hervey Bay, Nambour and Beerwah where Sunday trading had been

recently introduced, to demonstrate that there had been a 7% to 12% increase in total hours recorded, and an average number of additional hours per week from 151 to 200. Increased employment will also be generated in contracted service areas of cleaning and trolley collection.

[179] The Mackay Whitsunday Regional Economic Report for the year ending June 2007 (Appendix 1 to Ms Green's Statement Exhibit 13), highlights a significant decline in unemployed persons and the unemployment rate, and wages growth of almost 50% since 2001, significantly above wages growth in Queensland over the same period. The average wage in that region is 11.6% higher than the State, and there has been an increase in the region's household income between 2001 and 2006, of 51% compared to the State average of 35%. The Report also indicates that over 8,000 persons are employed in the retail industry in the region. Ms Green said that it is probable that the prohibition on seven day trading in Mackay is an inhibition to employment growth. In this regard, many of the tenants of Canelands, and those who provide produce, goods and services to those tenants, will require additional staff if seven day trading is allowed.

[180] Mr Waters said that if the NRA's application is granted, Big W will provide increased employment opportunities. Currently Big W employs 9,900 employees throughout the Queensland region. The Mackay store employs up to 220 employees. It is anticipated that the grant of the NRA's application would result in an additional 245 hours being generated by the Mackay store. Increased employment opportunities will also be generated by contractors to Big W whose workload will increase with the advent of Sunday trading. Based on the employment requirements of existing Big W stores trading on Sundays, it is envisaged that the extra days trade in the Mackay store would be worked in two to three shifts, which would facilitate opportunities for married women, university students and others who wish to supplement individual or family incomes, while having sufficient hours left in the day for other pursuits. Extra work opportunities would be created for sales staff, recovery staff, office workers and night and day fillers to restock shelves. All Sunday work at Big W stores is voluntary and would remain so if the NRA's application is granted. Big W has not experienced difficulty in staffing stores with volunteers on Sundays.

[181] According to Mr Phillips, tourism is a labour intensive industry and creates many job opportunities for young people, who are encouraged to stay in local communities. Mr Phillips indicated that he could not agree that there were insufficient numbers of people available in Mackay to fill additional working hours which would result from Sunday trading. According to Mr Phillips, there are labour shortages in other parts of Australia and Mackay is not unique in this regard. Mr Phillips also said that it was his understanding that the position of the major retailers is that if Sunday trading is granted, they will find sufficient staff to work additional hours.

[182] Mr McBryde also said that work by employees of the Colorado Group on Sundays would be voluntary if the NRA's application was granted.

[183] Mr Winzenberg said that participation by Target employees in Sunday work will be voluntary. Based on experience, Target does not expect the number of volunteers to be less than what is required. It is anticipated that 7,000 hours of additional employment per year will be generated in Target's Mackay store if the NRA's application is granted. In Townsville a handful of new team members have been employed as existing team members wanted to take up the additional hours available. Approximately 35% of team members who elected to work on Sundays are mothers.

[184] It is the view of Target Australia that there is no point forcing employees to work on Sundays. Approximately 90% of Sunday work is performed by casuals who typically want to work on Sundays because they are students seeking to generate income; mothers who want to supplement family income without the offsetting cost of childcare; and employees whose partners work on weekends and want to arrange time off to coincide with that of their partner.

[185] Mr McBryde said in his evidence that work by employees of the Colorado Group on Sundays would be voluntary.

[186] Mr Stout said that work by Coles' employees on Sundays would be voluntary if the NRA's application was granted. Historically, Coles' staff have welcomed the opportunity to work additional hours. Experience is that the conversion of six day trading stores to seven day trading stores will result in an additional 157 hours of employment per store. Based on a wage of $17.00 per hour, 157 hours at time and a-half penalty rate equates to an additional $2,699 per Sunday per store being generated through the local community. The annualised value of additional income provided to the local economy equates to $2,669 x 52 Sundays x 4 stores = $277,576. Public holiday trading will add to this estimate. Mr Stout confirmed that work on Sundays by Kmart employees would be voluntary if the NRA's application was granted. Based on experience with the introduction of seven day trading in Kmart Brisbane metropolitan stores, it is expected that approximately 8,000 hours of additional employment will be generated by Kmart's Mackay store if the NRA's application was granted.

[187] Ms Podnar also confirmed that if Sunday trading was permitted, Jeans West would staff its store with current employees who volunteered to work on that day. Under cross-examination, Ms Podnar said that she was not aware

that there were other options under which the Canelands Centre could open on Sundays, if the NRA's application was not successful. Mr Harris also said that if Universal's Mackay store traded on Sundays, it would be staffed by existing employees on a voluntary basis. In Mr Harris' experience, staff actually like Sunday trade because they receive higher remuneration.

[188] Under cross-examination from Mr Driscoll, Mr Harris said in relation to the view of the Mackay Regional Council that employees would not want to work on Sundays, that this had not been his experience in other centres where Sunday trading had been introduced. Mr Harris said that the Mackay Manager had already had discussions with employees about the possibility of Sunday trading being introduced, and had informed him that there would be no problems staffing the store if this occurred. Mr Harris also said that there had been no more difficulty staffing the Mackay store than any other region, and he was not aware that employment levels in Mackay were different to those in other areas. Universal Stores generally employ young people and the weekends are the same as any other day to them. Universal had opened its Mackay store last year and had not had any problems with staffing the store. In response to the proposition that this may have been because Universal was a new brand in Mackay, Mr Harris said that his expectation would be that the Mackay store would develop in the same way as other stores and attracting sufficient labour would not be an issue.

[189] Mr Chapman said that Sunday work would be voluntary for employees of WOW, if the NRA's application was granted. When asked where additional staff to operate the Mackay store on Sunday would be sourced from, Mr Chapman said that WOW had not experienced any difficulty in recruiting staff. A number of staff had moved to Mackay from other locations. Staff would also be drawn from the existing pool.

[190] In response to a question from the Commission, Mr Reseck said that it is currently very difficult for him to get labour to operate his stores. Previously, young people were employed but now Mr Reseck tended to employ older people. Mr Reseck had also sourced managers from overseas under the s. 457 visa program and currently has seven such employees. Under cross-examination from Mr Driscoll, Mr Reseck said that he envisaged that it would continue to be difficult to source staff when he opened a fourth store in the near future.

[191] Mr Dorman said that the JB Hi Fi store proposed for Mackay would have approximately 35 staff with 20 to 25 being on the floor at any one time. In relation to the proposition that there would be difficulty in finding staff given the high rate of employment/low rate of unemployment in Mackay, Mr Dorman said that the company had found it challenging wherever it went to get good quality staff. However, it has a good name which will attract staff, and a number of employees currently working in other locations may be enticed to come to work in Mackay.

[192] Under cross-examination by Mr Driscoll, Ms Moura said that she is not familiar with the unemployment rate in Mackay but if it is anything like other remote areas in Australia, it tends to be difficult to recruit in those areas. If SFG's Mackay stores were permitted to trade on Sundays, existing staff would be offered work, and then additional staff would be recruited if required. Generally stores are small and there are one to two people working at any one time. Staff are generally hired by the store manager through networking, a website and signs in front windows of stores. In the past six months a store manager had been recruited and this had taken four to six weeks. While it had been difficult to find someone to fill the position, SFG's regional manager is not based in Mackay and had to travel in, and this contributed to the delay.

[193] When asked by Mr Driscoll about the main thrust behind SFG's support for the NRA's application, Ms Moura said that Sunday trading was the most popular day for the community and for people in terms of work. SFG employs 5,000 women, most of whom want to work part-time. Most of them want to balance work and family commitments and Sunday trading creates a lot more flexibility in terms of when team members can actually work. Ms Cristaldi said that if the Canelands store were to commence trading on Sundays, the additional hours would be offered to existing staff and if they were not interested, an additional person would be recruited. No existing staff would be forced to work on Sunday.

[194] Under cross-examination from Mr Driscoll, Ms Cristaldi said that the method of recruiting new staff is to advertise in store windows. The demographic being aimed for is "yummy mummies" or part-time employees who are mothers aged from 45 to 55 and who are only looking for a three to four hour shift rather than extensive hours. These women don't ordinarily look for work, but are interested when they see signs in store windows and realise that they can get discounts on goods. People outside that demographic are also recruited. Ms Cristaldi said that she would not be surprised that unemployment in Mackay is negligible but said that the company had only recently recruited a store manager. Ms Cristaldi also said that the company prides itself on having a good training program for staff, and does not necessarily recruit persons with a retail background.

[195] Mr Dever said that Sunday trading would also contribute to increased employment and the increase already attributable to Sunday trading in City Beach stores is 48 hours in each store and 529 hours in total. It is expected that an additional 48 hours of employment would be utilised each Sunday in the Mackay store if the NRA's

application was granted. Mr Dever said that based on City Beach's experience with other seven day trading stores, if Sunday trading was granted, the Mackay store would be staffed on Sundays with employees who attend university and want to earn an income on weekends, or other employees who prefer to work on Sundays or holidays for particular personal reasons. Work by current employees will be voluntary if Sunday trading is granted.

[196] Under cross-examination from Mr Driscoll, Mr Dever said that in the Mackay store, Sunday trading would lead to approximately 50 extra hours of work each week. Staff would be drawn from a large core base of casuals and there may also be new employees. Seven staff are required in the Mackay store at any one time and it is projected that a pool of approximately ten new staff members will be required if Sunday trading is approved. Staff would be sourced in Mackay. Mr Dever maintained there would be no difficulty in attracting staff to work in the Mackay store. Three of four management team members have been employed for over three or four years. A lot of other staff are also long term employees. In addition, staff are drawn from family members and friends of existing staff who work together in a group. There is a regular influx of resumes into the Mackay store without the need for advertising, especially towards the end of the school year. There is also interest from existing casual employees who want to work additional hours.

[197] In response to a question form Ms Schinnerl, Ms Miles said that if Diva's Mackay store commenced Sunday trading, work would be offered to existing team members on a voluntary basis. If there were insufficient existing team members to staff the store, then additional team members would be recruited.

[198] Mr McMurtrie said the Mackay community has been experiencing a period of substantial growth due to the expansion of the mining industry. This has created many issues for the community, one of which is a very low unemployment rate. As a result, many local businesses struggle to fill vacant staff positions. As a business owner, this means extra pressure is placed on existing staff because new staff with necessary skills and attributes are difficult to source. Mr McMurtrie is concerned about who will be available to fill extra hours if seven day trading is introduced. Finding new staff will be difficult and Mr McMurtrie will have to adjust the rosters of existing staff, resulting in a reduced level of service on other days of the week. In the last month, two experienced staff members have left employment with Mr McMurtrie, and during exit interviews, stated that they were leaving because they did not want to work on Sundays.

[199] Mr McMurtrie's customers demand access to knowledgeable and experienced staff to help them with their needs. He cannot simply employ inexperienced juniors to cover any gaps on weekends. It takes several months to adequately train a staff member to the level where they are competent to work on a schedules counter. This is reflected in the relevant award where employees are not deemed to be level two pharmacy assistants until they complete a minimum of six months employment.

[200] Under cross-examination from Ms Schinnerl, Mr McMurtrie maintained that the staff leaving his employment had stated in exit interviews that they were leaving to get jobs where they would not be required to work on Sundays. In response to the proposition that this is pre-emptive, given that Mr McMurtrie's witness statement was signed in April, Mr McMurtrie said that there had been significant media coverage about Sunday trading, and that coverage had been biased in favour of its introduction. Mr McMurtrie rejected the proposition that he would be able to find employees who would work on Sundays, provided he was willing to provide training. Mr McMurtrie said that he maintains a strong training culture in his stores. Mr McMurtrie also said that he employs a number of university students.

[201] In response to the proposition that he could employ school students, Mr McMurtrie said that there was a duty of care with respect to selling medications. Further, much of the training necessary for pharmacy assistants is conducted during the week at times when school students are unable to attend. Mr McMurtrie also said that out of 55 staff members there are only two positions where all that is required is cash register operation. Mr McMurtrie agreed that he would need a cash register operator on Sundays.

[202] Under cross-examination by Mr Black, Mr McMurtrie said that he last advertised for staff approximately two months prior to giving his evidence in the current proceedings. He received approximately twenty applications for the position of a cosmetic counter manager. Mr McMurtrie also said that if he opened his store on Sundays he would be required by law to have a pharmacist present. There is a shortage of pharmacists across Australia. The workload would have to be spread across seven days and increased. As a result there may be less service for the benefit of a few customers on Sundays.

[203] Mr Giannangelo was not required for cross-examination, and gave evidence by consent, by way of a witness statement. Mr Giannangelo operates his Battery World Mackay store Monday to Friday from 8.00 a.m. to 5.00 p.m. and Saturday from 8.30 a.m. to 12.30 p.m. With extra hours of work, Mr Giannangelo's business would require additional staff. As the business is a speciality store, experienced people are needed rather than part-time

school students. Staff are hard to find in Mackay due to the mines absorbing them, and if every retailer is looking for additional staff things will get worse.

[204] In response to a question from Ms Schinnerl, about how many staff would be laid off if Sunday trading was introduced, Mr Englert said that this would depend on how much market share was lost. Foodworks East Mackay had estimated that it would lose around $260,000 in the first year of deregulation based on previously deregulated trading hours at Christmas and Easter periods. That amount is practically the entire wages bill for Foodworks East Mackay over a year. This equated to a loss of $4,000 to $5,000 per week. As a result staff would be reduced by two on Sundays. Currently, Foodworks East Mackay employs staff at levels of 4% above the average retailer and spends 12% of its growth profit on staff as opposed to the 8% spent by larger retailers. In addition to the staff reductions on Sundays, it is expected that there will also be reductions in the level of trade on Mondays, Tuesdays and Wednesdays as a result of Sunday trade, which will lead to reductions of one or two staff on those days as well.

[205] There are currently six persons employed in the Foodworks East Mackay store on Sundays. Mr Englert maintained that employees he laid off would have difficulty finding other jobs in the retail sector, as major retailers have less staff on the floor per square metre, and have established self-service checkouts, without operators. Ms Abbot said that the owner of the De Campo Mini Mart is her uncle Frank De Campo. Ms Abbot's husband assists her in running the business and there are three additional employees. If seven day trading is introduced, Ms Abbot will be required to terminate the employment of one of the three employees, as the business will not be able to maintain current business levels with the increasing competition from bigger retail stores.

[206] In response to questions from Ms Schinnerl, Ms Abbot said that she currently works on Sundays and the three employees do not work on Sundays unless they are needed. Ms Abbot agreed that it would be a reduction in trade for the rest of the week resulting in the need to terminate the employment of one staff member. Under cross- examination by Mr Black, Ms Abbot said that one of the three employees works twelve hours per week, another works six hours per week at the present time and the third employee, who is her nephew, fills in whenever required. Ms Abbot agreed that the reduction would be in the sixteen hours currently worked by those three employees.

[207] It was put to Ms Feeney by Ms Schinnerl that Sunday trading may create additional employment opportunities for young people so they are discouraged from simply wandering around shopping centres. Ms Feeney said that young people could not be left in control of small businesses on Sundays. Ms Feeney also conceded that there may currently be protections in place to stop employers from forcing young employees to work on Sundays.

[208] Ms Schembri said that if Sunday trading was granted, her store would need to be staffed by one of the owners and a casual employee. This would mean no time together as a family. Ms Schembri's family would be unable to attend sporting, church and family functions or other events as a family on Sundays or public holidays. Ms Schembri said that the emotional cost of working on Sunday for a mother with two small children is a huge issue. In response to a question from Ms Schinnerl, Ms Schembri said that this statement was made in relation to her own family. If one partner was required to work on Sundays in the business there was no day the family could spend together. This would be worse once her children started school. Ms Schembri also said that she did not think that this situation was unique to her family. Ms Schembri agreed that the opportunity to avoid childcare costs by one partner working on weekends may benefit some families.

[209] Ms Schembri also said that casual employees have families themselves and do not want to work on Sundays, notwithstanding penalty payments. The casual employee in Ms Schembri's business is a year twelve student who already works on Thursday nights and Saturdays, and does not want to work on Sundays. Although that employee could earn more money because of Sunday penalty rates, he has mates and family members who go out on Sundays and that is what he wants to do.

[210] Under cross-examination from Mr Black, Ms Schembri said that she was referring to her own personal experience when commenting on family issues, but she did not think her position was unique to her family. Sporting events referred to by Ms Schembri included fishing, football games and hockey games involving other family members. Ms Schembri and her family also attend church. Ms Formosa said that many of the staff employed in her business have small children and want to spend time with their families on weekends. The owners of the business also cherish this one day of the week when they can relax and enjoy life.

10. VIEWS OF THE LOCAL GOVERNMENT IN WHOSE AREA THE ORDER IS LIKELY TO HAVE AN IMPACT

[211] Councillor Christensen is a Councillor for the Mackay Regional Council elected after the amalgamation of local councils in May 2008. Councillor Christensen was a Councillor in the former Mackay City Council during the period April 2004 to March 2008. Councillor Christensen provided an Affidavit (Exhibit 30) in this proceeding. The views expressed in the Affidavit had been formed in undertaking his role as a Councillor with reference to

s. 229(1)(a) of the Local Government Act 2003 which provides that a council must represent the overall public interest of a local government area. When Councillor Christensen swore his Affidavit the Mackay Regional Council had not conducted a vote on the NRA's application.

[212] Councillor Christensen said that in his role as an elected Councillor he had made himself aware of the various arguments for and against the so called issue of Sunday trading. In Councillor Christensen's view, Sunday trading is a misnomer for what is actually further deregulation of trading hours to allow major retailers to open on Sundays. According to Councillor Christensen, the push for Sunday trading in Mackay is being run by major retailers and he told the Full Bench that he had been contacted by a corporate lobbyist on behalf of Woolworths Limited in relation to the issue.

[213] Councillor Christensen was one of a majority of councillors of the former Mackay City Council who voted 7 to 3 to oppose further deregulation of Sunday trading hours in Mackay at an ordinary general meeting of the Council on Wednesday 21 November 2007. Councillor Christensen said that he supported Mackay City Council's objection to the NRA Sunday trading application due to the negative impact it would have on small, local and family run businesses. Sundays are normally the best trading days for those businesses. Councillor Christensen cited research on the impact of the deregulation of trading hours which indicated that in Victoria, independent retailers lost up to 70% of their Sunday trade and in Tasmania 30% to 85% after the introduction of Sunday trading. Councillor Christensen also cited research by the QRTSA which indicated that the deregulation of trading hours in some Queensland towns in 2002 resulted in many independent retailers losing up to 50% of their Sunday trade with overall sales losses of up to 60%. These statistics were said to clearly show the negative impact that the deregulation of trading hours would have on small, family run, independent and local businesses.

[214] Councillor Christensen is also concerned about the impact of Sunday trading on workers who would rather have the day off, particularly young people. Councillor Christensen said that Sundays in Mackay are traditionally days when locals take time out to attend events such as local markets, sporting events (particularly junior sporting events), community group fundraisers or family outings to the many recreational areas Mackay has to offer. Sunday trading will spoil these events by precluding young retail workers from attending.

[215] The argument that Sunday trading is needed because of the large number of shift workers in Mackay has no credence, given that most shift work in the region is worked on the basis of four days on and four days off. This gives shift workers more opportunity to shop during normal retail trading hours. Councillor Christensen also pointed to a survey of Mackay residents conducted late in 2007, which showed that 50.3% of participants were against Sunday trading.

[216] Councillor Christensen said that in his view, younger people were concerned that they could be penalised for not working on Sundays or that they could be pressured by their employers. In Councillor Christensen's view, young workers are not on equal footing with employers when negotiating about matters such as working hours. Councillor Christensen also agreed that there would be young people who would prefer to bypass Mum's lamb roast on Sundays and earn some extra money by working.

[217] Councillor Christensen gave evidence as to the history of both the former Mackay City Council and the current Mackay Regional Council's deliberations on the issue of Sunday trading. The first vote was taken on 21 November 2007 by the then Mackay Regional Council with seven Councillors supporting the resolution to oppose further deregulation of trading hours with the introduction of Sunday trading and three Councillors opposing that resolution.

[218] The second resolution was a resolution of the newly elected Mackay Regional Council which was taken on 14 May 2008 i.e. just prior to the hearing of this application commencing. The motion (Exhibit 33) passed by nine votes in favour with one vote against is as follows:

"Mackay Regional Council opposes the application by the National Retailers Association to further deregulate Sunday trading hours in the Mackay region due to the negative impacts it will have on local sporting and community events, family live in and small retail businesses in the Mackay region.".

[219] During the vote on the resolution, Councillor Christensen advised that one councillor excused herself from the debate, on the grounds that she may have conflict of interest.

[220] Under cross-examination from Mr Black, Councillor Christensen said that he had seen a copy of the Transpac report relied on by the NRA in this application, and that he had forwarded a copy of that report to other Councillors. Councillor Christensen added that Councillors may also have received a copy of the Transpac report from the previous Mayor, Ms Boyd who had received a copy. Councillor Christensen agreed that there is an advisory committee called the City Centre Revitalisation Committee, and that this Committee had recommended to the

Council that the NRA's application be supported. Councillor Christensen said that when the Mackay Regional Council took a vote on the issue it was the current NRA application that it had before it. The resolution that was passed reflects that position.

[221] Councillor Christensen said he had contacted Mr Driscoll of the QRTSA to ascertain the organisation's position on Sunday trading and whether it was opposing the NRA's application. There had been several discussions and emails between Councillor Christensen and Mr Driscoll. Councillor Christensen said he had not contacted the NRA because he knew what its position on the question of Sunday trading was. Councillor Christensen rejected the proposition put by Mr Black that he had discussed with Mr Driscoll the desirability of "whipping in under the radar getting a motion put through council" and that he had organised the vote of 21 November 2007. Councillor Christensen said he had not planned a resolution but instead was intending to write a letter, as at that point he knew of only four councillors who were opposed to Sunday trading. Councillor Johnson had asked for the names of those who voted for and against the resolution to be recorded. This was normal in circumstances where a councillor has a particular view on something or if they want the public to know how they voted on an issue.

[222] Councillor Christensen agreed that at the point the vote was taken on 21 November 2007, there was no material or information before the Council relating to the NRA's application. There was, however, a debate about the issue at the meeting.

[223] In relation to the meeting of 14 May 2008, Councillor Christensen confirmed that he had moved the motion leading to the resolution against Sunday trading being passed. While there had been a fifteen minute discussion about the resolution, there had been an earlier meeting of Councillors called a forum, where there had been a longer discussion about all of the issues associated with Sunday trading. Councillor Christensen said that Council had not read the NRA's application or the supporting material contained within it before passing its resolution. However, the Councillor maintained he had circulated the Transpac survey to other councillors prior to the resolution of 14 May 2008 being passed. It also emerged during the cross-examination of Councillor Christensen that one of the current Mackay Regional Councillors is a member of the NRA.

[224] Councillor Christensen said he supports small business, but not in the face of overall public interest. As an example of an occasion in which the public interest overrode the interests of small business, Councillor Christensen referred to a development application involving a new Woolworths supermarket being built in the Northern Beaches which he supported. His support for that proposal was not in the interests of small business in the area. In response to the proposition from Mr Black that overall public interest would require consideration of the market research or consumer research, Councillor Christensen said this depended on what questions were asked when the market research was undertaken.

[225] Councillor Christensen said there are a number of Councillors on the Mackay Regional Council that had small business connections. In response to the proposition that those Councillors should have excluded themselves from voting on Sunday trading on the basis of conflict of interest, Councillor Christensen said this was a matter for each individual Councillor to decide, and he could not speculate on the motives of other Councillors in either voting on the motion or excluding themselves from the vote.

[226] In the local council elections in March 2008, all three Mayoral candidates openly opposed the introduction of Sunday trading in Mackay. Councillor Christensen said that he could not comment on the motives of candidates in expressing such a view. There were thirty-seven candidates running for the Mackay Regional Council in March 2008 and members of the community could have questioned every one of them to find out their views. People had known where Councillor Christensen stood on the issue, and he had received the third highest vote.

[227] Councillor Christensen agreed the Mackay Chamber of Commerce had stated its support for the introduction of Sunday trading, notwithstanding the survey results set out in his statement. Councillor Christensen also agreed that arguments about time and convenience in relation to Sunday trading were perfectly valid, but maintained the question was "convenience at what cost?". His position is that there are six days currently available for people to shop, and in addition five nights upon which grocery shopping can be done. On one of those nights all retailers in major shopping centres are open. If people need to do their grocery shopping on Sundays options are currently available. In relation to the large population of shift workers in Mackay, it is Councillor Christensen's opinion that the four day on and four day off roster system worked by those persons actually gives them more time and opportunity to shop. The world is not falling apart because all retailers in Mackay are not trading on Sundays.

[228] A number of witnesses were cross-examined by Mr Driscoll about the resolution of the Mackay Regional Council opposing Sunday trading. Mr Wallace said he had read a media article stating the Mackay Regional Council had voted against the introduction of Sunday trading. Mr Wallace also said he was aware the previous Mackay City Council had also voted against the introduction of Sunday trading, but that the previous Mayor had been in favour of the NRA's application. In response to a question from the Commission, Mr Wallace said he was aware that all

mayoral candidates in the recent elections had indicated opposition to Sunday trading. In response to the proposition that mayoral candidates were reflecting the preferences of consumers, Mr Wallace said anecdotal evidence from Woolworths customers and the Transpac research, indicated one in two Mackay residents support Sunday trading. Mr Wallace agreed this meant one in two Mackay residents did not support Sunday trading.

[229] Mr Waters said he was aware the Council opposed the introduction of Sunday trading. Mr Phillips was also aware of the Council's opposition to the NRA's application. Mr Phillips said the Council's position surprised him given its support of a strategic plan for Mackay that promotes the growth of tourism. According to Mr Phillips tourism is a seven day industry.

[230] Mr Winzenberg was also aware that the Mackay City Council had voted against Sunday trading. Ms Moura's evidence is that she was not aware that the Mackay Regional Council had voted against the introduction of Sunday trading. She further commented that she would hate to think that a Council could regulate what can be/can't be done by families on weekends.

[231] Mr Dever was also aware the Mackay Regional Council had opposed the introduction of Sunday trading and had passed a resolution to this effect. Mr Stout was shown the resolution of the Mackay Regional Council of 14 May 2008 opposing extended trading hours (Exhibit 33) and conceded some of the profit which would be derived by his organisation in the Mackay area, would be derived from some of the smaller family owned businesses referred to in that resolution. Ms Podnar said she was aware the Mackay Regional Council and local businesses within the Mackay area are opposed to the extension of trading hours. Mr Harris was also aware of the Council's opposition to Sunday trading. While Mr Harris could understand this view and would not support Sunday trade in a lot of centres, it is his opinion that Mackay is now a different centre to what it was five years ago, and it is time for Sunday trading.

11. CONCLUSION

[232] A brief summary of the history of the trading hours legislation was outlined in paragraphs [188] to [197] of National Retail Association Limited, Union of Employers (Regional Queensland (Southern & Eastern Area)) (2005) 180 QGIG 484. We adopt that history and in particular the following comments of the Full Bench decision in Property Council of Australia Limited (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:

"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.".

and further, the views expressed by President Moynihan on appeal in Property Council of Australia and Another v Queensland Retail Traders and Shopkeepers Association (Industrial Organisation of Employers) and Others (1999) 161 QGIG 524 that:

"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.".

[233] Whilst we acknowledge that the legislation was amended in 2002 to enable the Commission to decide rather than regulate trading hours, the statements made in earlier cases as set out above, remain applicable.

[234] It is thus for the NRA to "justify an exception" from the general prohibition on Sunday and public holiday trading. It is for the NRA to establish that the Mackay region is one where "special circumstances of a sufficiently significant nature" exists, that the Mackay region is "unique" or that it is "clearly distinguishable" from the general situation effected by the Order.

[235] Tourist Industry: The NRA, and those witnesses supporting the NRA's application, tended to focus upon the fact that Sunday trading was now available in Port Douglas, Cairns, Townsville, Airlie Beach, Yeppoon and Hervey Bay as a basis for extending trading hours in the Mackay region. When each of those particular localities first succeeded in gaining trading on Sundays, the applications were primarily based on tourism, and in particular leisure tourism. A review of the following decisions can verify the emphasis on the tourist or expanding tourist industries:

 Retailers' Association of Queensland Limited, Union of Employers v Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees and Others (1991) 138 QGIG 97 where the Full Bench in granting a trial of Sunday trading in the Gold Coast Area said that the "needs of the tourist industry, including those of an expanding tourist industry, are factors to which our attention is directed";

 Retailers' Association of Queensland Limited, Union of Employers v The Australian Workers' Union of Employees, Queensland and Others (1991) 138 QGIG 1202 where the Full Bench said that it could "be seen that this application is predominately based upon the needs of tourists and the tourist industry in the Cairns CBD area" when granting Sunday trading in the Cairns CBD;

 Retailers' Association of Queensland Limited, Union of Employers v Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) and Others (1995) 150 QGIG 69 where the Full Bench, in deciding to grant a two year trial of Sunday trading in the Townsville CBD, referred to the very large number of persons attending the craft markets in the Mall every Sunday, very many of whom were tourists. The trial was completed in 1997 and the Full Bench in (1998) 157 QGIG 24 confirmed Sunday trading in the Townsville CBD area. In Retailers' Association of Queensland Limited, Union of Employers v Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) (2004) 176 QGIG 615 the definition in the Order was changed to the Townsville Tourist Area and included a store in North Ward which is near to The Strand. The emphasis in the extension of the definition was that it was a significant tourist area;

 Retailers' Association of Queensland Limited, Union of Employers v Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees and Others (1994) 147 QGIG 1462 where an expanding tourist population was a primary reason for the granting of Sunday trading on the Sunshine Coast. See also Sands Merchants Association v Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees and Others (1994) 145 QGIG 627;

 Retailers' Association of Queensland Limited, Union of Employers v Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) (2000) 163 QGIG 554 where the Full Bench in granting Sunday trading in the Whitsunday Shire Tourist Area stated that they were "satisfied that tourists use the Shire as a gateway to the Great Barrier Reef and the Whitsunday Islands, pass through the Shire in travelling north and south on the Bruce Highway and criss-cross the Shire in seeking out eco- tourism destinations … tourism has a centre of gravity in the area of Shute Harbour, Airlie Beach and Cannonvale …";

 Retailers' Association of Queensland Limited, Union of Employers v Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) and Other (2003) 173 QGIG 341 where tourism and the fact that Hervey Bay was the gateway to Fraser Island were the primary factors in the grant of the application; and

 National Retail Association Limited, Union of Employers v Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) and Another (2007) 186 QGIG 705 where the Full Bench accepted that there was "significant tourist growth" within the Yeppoon area when granting Sunday trading in the Yeppoon Tourist Area. Sunday trading in Yeppoon had been rejected by a Full Bench in 2003 in Retailers' Association of Queensland Limited, Union of Employers v Queensland Retail Traders and Shopkeepers Association (Industrial Organisation of Employers) and Others (2003) 173 QGIG 341.

[236] A reading of the defined areas in the Order (outside Brisbane where the Queensland Government has legislated for Sunday trading) where Sunday trading is available is also of interest:

 Gold Coast and Sunshine Coast Areas;  Cairns Tourist Area;  Townsville Tourist Area;  Douglas Shire Tourist Area;  Whitsunday Shire Tourist Area;  Great Barrier Reef Wonderland Tourist Complex;

 Hervey Bay Area;  Townsville and Thuringowa Area (excluding the Townsville Tourist Area); and  Yeppoon Tourist Area.

[237] All have the word "tourist" contained in the definition except for the Gold Coast and Sunshine Coast Areas which are well known for their direct relevance to tourism, the Hervey Bay Area and the Townsville and Thuringowa Area. The granting of Sunday trading in the Hervey Bay area relied on the tourist and expanding tourist industry criteria while Townsville first achieved Sunday trading as a result of its importance to tourism in the area. The NRA's application seeks to extend Sunday and public holiday trading to the "Mackay Area". There is no mention of it being a tourist area.

[238] The application currently before the Full Bench does not rely on leisure tourism. In fact the evidence is that leisure tourism has declined in the area which is the subject of this application. There is an increase in the numbers of tourists if one relies upon the definition of "tourist" that Mackay Tourism Limited utilises. Mr Phillips' evidence is that the "business sector" and "holiday travel" is growing. Of the so-called visitor stays "in the region", business sector travel accounted for 38% of total visits while holiday travel comprised 31% with 27% of total visits being made up of persons visiting friends and relatives.

[239] We accept that the Mackay economy is strong. We further accept that there are a lot of business people travelling through Mackay to go to the Bowen Basin and that those business people may stay overnight in Mackay and may stay for an average of 3.4 nights "in the region". The business person travelling through a region, however, has never been a criterion for the granting of Sunday trading. Further, there is no evidence that business persons travelling to or through Mackay and surrounding areas are in any way impacted by whether or not major retailers are permitted to trade on Sundays, or that the grant of Sunday trading would have any effect on such travel. It is also highly unlikely that the 38% of travellers who visit Mackay and surrounding areas for business purposes, have any interest in shopping on Sundays or public holidays.

[240] There was no evidence before us that persons visiting Mackay for professional or commercial reasons treat their visit as anything other than a "whistlestop": see Retailers' Association of Queensland Limited Union of Employers v Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) and Others (1995) 150 QGIG 69. The evidence before this Full Bench establishes at best, that business tourists stayed for an average of 3.4 nights "in the region" which we took to include the Bowen Basin. Even on Mr Phillips' evidence, tourists "as pure holiday makers" only account for one-third of total visitors and the actual number of leisure tourists while not declining certainly has not grown. The evidence of others was that it had declined.

[241] Mackay is the city that services the Bowen Basin. The Bowen Basin is not a tourist destination. On the evidence before us, Mackay is not primarily a tourist destination as such and it does not service a tourist area, in the same way for example, that Hervey Bay services Fraser Island. We accept that Mackay has many attractions to offer tourists. We also accept that Mackay wishes to improve its offer to tourists through Sunday trading. As Mr Spratt said "Mackay needs something like Sunday trading to boost tourist numbers". Mr Phillips also referred to the role of Mackay Tourism Limited being to "recapture leisure visitation". Assisting regions to boost tourism or recapture leisure visitation is not however a criteria outlined in the legislation which we must consider in any application to extend trading hours. Further, as one witness put it, leisure tourists visit Mackay to access its many beautiful beaches and other attractions, not to shop, and particularly not to shop on Sundays.

[242] There was no suggestion, during the course of the hearing, that either Sarina or Walkerston have tourist industries or that those areas service tourist destinations. In our view neither s. 26(b) nor (c) assist the NRA in this application.

[243] Views of Local Government: The requirement to take into account the views of local governments in the area where the application, if granted, is likely to have an impact was introduced in the legislation as and from 1 August 2002. The views of the Mackay Regional Council are clear. The Council strongly opposes the introduction of Sunday trading in Mackay, Sarina and Walkerston at this time. The old Mackay City Council also opposed Sunday trading in Mackay.

[244] Each of the mayoral candidates in the March 2008 local government elections opposed Sunday trading in the area. It would be unusual for persons running for elections not to have considered the views of their constituents in forming their position on such an issue. If the views of the Mackay residents were to support Sunday trading, then one would have expected at least one of the candidates to have supported Sunday trading in order to gain an advantage in the election.

[245] Whilst the view of local government, if expressed, has always been considered by the Commission in dealing with trading hours applications, the Queensland Government has, since August 2002, required the Commission to consider such views.

[246] In National Retail Association Limited, Union of Employers (Regional Queensland (Southern & Eastern Area)) (2005) 180 QGIG 484 the Full Bench dealt with this aspect of the legislation as follows:

"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… Local authorities need, in future, to 'bite the bullet', to understand the issues involved and to provide proper and informed indications to the Commission …

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 the Commission.".

[247] In National Retail Association Limited, Union of Employers v The Australian Workers' Union of Employees, Queensland and Others (2005) 180 QGIG 214 the Full Bench said:

"The Commission has, in previous cases, given weight to the view of the Local Authority, see e.g. (2000) 165 QGIG 49. However, this is now a Legislative requirement. The view of the Local Authority must therefore carry more weight than the view of other Organisations.".

[248] In National Retail Association Limited, Union of Employers v Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) and Others (2006) 183 QGIG 950 the Full Bench commented that "the Trading Hours Act does not place any obligation on any local Government authority to express a view on trading hours matters. However, where a local Government chooses to make a submission in relation to a trading hours hearing then s 26(h) of the Trading Hours Act requires the Commission to take note of that local Government's submission…". The Full Bench further stated:

"In regard to s. 26(h) of the Trading Hours Act, we note the comprehensive and detailed submissions of Councillor Tatton in which he records the primary reasons why the Maroochy Shire Council reversed an earlier decision in respect of 7 day trading in Nambour and why it now strongly supports 7 day trading in that locality. His submission … has heavily influenced the ultimate decision we have reached.".

[249] In National Retail Association Limited, Union of Employers v Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) and Others (2007) 185 QGIG 287, the Townsville City Council opposed the NRA's application to the extent that it allowed trading prior to 11.00 a.m. on Sundays. The Townsville City Council achieved the outcome it sought with the Full Bench partially granting the application with trading on Sundays not to commence prior to 11.00 a.m.

[250] In National Retail Association Limited, Union of Employers v Queensland Retail Traders and Shopkeepers Association (Industrial Organisation of Employers) (2008) 187 QGIG 271 the Full Bench said:

"Finally, NRA's application is strongly supported by the Beaudesert Shire Council, the local government authority in existence at the time the decision on NRA's application was reserved. This support is an important consideration in our overall assessment of the application (see s. 26(h) of the Act).".

[251] The Mackay Regional Council was recently elected by the population at large in the Mackay, Sarina and Walkerston areas. Its strong view in opposition to this application must be accorded weight. In this instance, the evidence adduced on the s. 26(h) criterion does not assist the NRA. The views of an organisation such as Mackay Tourism Limited do not carry the same weight as it represents vested interests rather than the interests of the population at large.

[252] Impact on Employment: The legislation in s. 26(g) requires the Commission to take account of the likely impact of any order we may make on employment. Like the views of local government, this provision was inserted into the Act in 2002.

[253] Given the level of economic growth in the Mackay region, there is a very high level of employment and low level of unemployment being experienced in the area. We had before us evidence of difficulties in finding employees to work in some retail establishments with Mr Reseck having to rely on employees sourced via s. 457 visas. On average it would appear as though the larger retailers, should the NRA's application succeed, would employ some additional staff and/or increase the hours of work of existing staff who volunteer to work on Sundays. In the alternate, there is likely to be a reduction in the numbers of persons employed in the independent and exempt retailers and/or the number of hours of work reduced to existing employees.

[254] In an area which essentially has full employment we do not see the criterion in s. 26(g) of the Act as providing much assistance to the NRA in justifying an exception to the existing situation provided for in the Order.

[255] Locality: The locality, the subject of this application, includes Mackay, Sarina and Walkerston. We have considered the fact that Mackay provides a vital service to the Bowen Basin coal mining industry and to the sugar producing areas surrounding Mackay. We have also taken account of the fact that there has been considerable economic growth in the area. We do not, however, consider the locality itself to be any different to many other localities in Queensland. Section 26(a) of the Act thus does not provide the NRA with any "special circumstance" or uniqueness which would warrant the granting of this application.

[256] Expanding Population: The evidence before us is that, over the past five years, Mackay city has experienced rapid growth and that there is an expectation that by 2026, Mackay will be Queensland's second largest regional city. It was suggested that as more and more people move to the Mackay region, they come with an expectation that Sunday trading would be available. There was no evidence before us about any expanding population in either Sarina or Walkerston. The requirement of s. 26(d) of the Act to take into account the needs of an expanding population certainly has some relevance insofar as Mackay city is concerned. We have noted the Transpac survey results and concluded that the evidence in this regard supports the NRA's application.

[257] Alleviation of Traffic Congestion: We note that some witnesses expressed a desire to shop on Sundays to avoid some parking problems associated with Saturday traffic, however, even those supporting the NRA's application admitted that they expected that Sunday trading, if allowed, would be nearly as busy as Saturdays. In general there was little by way of evidence to establish that there is traffic congestion which would support an application to extend trading hours. There is also evidence that Sunday trading would not alleviate any such congestion if it exists.

[258] Public Interest, Consumers' Interest and Business Interest (whether small, medium or large): Insofar as consumers' interest is concerned, we had before us residents of Mackay who, for various reasons, would like to shop on Sundays. Some became witnesses as a result of their responses to the Transpac survey. The results of the Transpac survey would indicate that of the 264 residents surveyed, the majority said that they support Sunday trading in the Mackay area. Such surveys have, in previous trading hours' cases, been treated with a degree of scepticism by the Commission. As the Full Bench in Retailers' Association of Queensland Limited Union of Employers v Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) (2004) 176 QGIG 624 said:

"The Commission has previously warned about accepting surveys and statistics as always accurately representing a situation. What has been said is that those surveys (and less so statistics which are conducted differently from surveys undertaken at a store) usually represent a general perspective of prevailing views upon a particular topic. They alone are usually not definitive in determining an issue.".

[259] Such surveys are generally conducted at the behest of a particular interest group and involve relatively small samples. Further, they are conducted by telephone, a mechanism that has some limitations. Where surveys are conducted in shopping centres, they are effectively being conducted in a location where participants are actively engaging in the very activity about which they are being surveyed. It is also arguable that the questions asked of participants focus on the view of the interest group on whose behalf the survey is being conducted, rather than any opposing view. In the survey before the Full Bench in this case, respondents were first asked to indicate whether they had shopped in retail establishments which are currently permitted to trade on Sundays and to indicate the frequency of their shopping in such establishments over the past twelve months. Eight statements were then made to respondents, and they were asked to indicate their agreement or disagreement with those statements. At first glance the eight statements are equally divided to reflect arguments for and against Sunday trading. The statements were also put to respondents in random order.

[260] The statements reflecting arguments for Sunday trading are in the following terms:

 It would help families where both adults work during the week to have all shops open on Sundays;

 Sunday trading provides for casual and part-time work opportunities for “uni” students and school leavers who are restricted in the times they can work;  Sunday trading provides people with more choice as to when they can shop at a time that is convenient to them; and  Shops trading on Sundays will provide casual and part-time work opportunities for people who need a second job to supplement family income.

[261] The statements reflecting arguments against Sunday trading are in the following terms:

 Shopping centres and supermarkets should close on Sundays because some businesses are concerned about increased competition;  Shops should not open on Sundays as this will intrude upon opportunities for families to spend time together;  Sunday trading will have an adverse impact on people’s participation in religious activities; and  Sunday trading will have an adverse impact on people’s participation in sporting and community activities.

[262] When these statements are examined in more detail, it is apparent that the statements reflecting the arguments for Sunday trading are framed in positive terms, while those reflecting the negative arguments are framed in negative terms. Statements reflecting positive terms also have more detail and reference matters that are more likely to strike a chord with respondents, for example, working families, choice and employment opportunities for designated groups such as university students and school leavers. Conversely, statements dealing with negative arguments contain little detail and are framed in negative terms, rather than being positive. The statement about competition is also unclear and does not reflect the position of small businesses which are concerned about their ability to compete in the existing environment much less an environment where major retailers are permitted to trade on Sundays and certain holidays.

[263] We are not satisfied that the survey results represent an accurate view of consumer interest on the introduction of Sunday trading in the Mackay region given other views adduced in this matter. Further, to the extent that the survey does reflect consumer views, we are not satisfied that on balance, there is sufficient evidence of consumer support to counter the other factors the Commission is required to consider.

[264] There was also little evidence before us that consumers in the Mackay area have a need for Sunday trading. In addition, we had the evidence that, despite the previous Mayor of the Mackay City Council being a supporter of Sunday trading in the Mackay area, each of the candidates for Mayor in the March 2008 elections supported an anti-Sunday trading position. Others, such as Councillor Christensen supported an anti-Sunday trading position throughout the election campaign. One would think that if the Mackay region electors were clamouring for Sunday trading that such candidates would have considered the ramifications of their anti Sunday trading stand.

[265] Supporting this application to extend trading hours are the shopping centre owners e.g. Lend Lease Retail and Macquarie Asset Services Ltd. These are large businesses which have an interest in having their shopping centres open and the stores within those centres trading on Sundays and certain public holidays. In addition, there is strong support for the application from Woolworths Ltd and Coles who are the non-exempt supermarkets. They are keen to be able to trade on Sundays. Much of the additional trade they hope to gain by opening on Sundays and certain public holidays will be at the expense of the independents and exempt shops. Their related organisations Big W, Target and Kmart are also supporting the application citing competitors such as Bunnings currently being able to open on Sundays.

[266] In addition, there are the major chain stores e.g. Gloria Jeans, Jeans West, Universal Store, WOW Sight and Sound, the Speciality Fashion Group, Lorna Jane, City Beach, Diva and Angus and Robertson. These stores generally trade in shopping centres such as those located at Canelands Shopping Centre, the Mt Pleasant Shopping Centre and the Sydney Street centre. These chain stores also support the NRA's application. There are also a number of independent and/or exempt shops that are in support of the NRA's application. These stores are located in the shopping centres. It is apparent that not all non-exempt stores are trading to the full extent of current allowable trading hours per week. Woolworths Limited and Coles are the exception.

[267] It is also the case that but for the fact that they are located in shopping centres, independent and/or exempt stores could currently trade on Sundays and certain public holidays. We accept that it is not practical or cost effective for small retailers in shopping centres to trade on Sundays when large retailers anchoring the centre are not permitted to trade. However, smaller retailers have decided to locate their particular store in a shopping centre anchored by one of the major retailers with full knowledge that major retailers are unable to trade on Sundays, and that this would mean that they could not trade. Most of the owners of these businesses conceded that the decision to go into business was not impacted in any way by the presence or absence of Sunday trading. As the Full Bench in National

Retail Association Limited, Union of Employers (Regional Queensland Southern & Eastern Area)) (2005) 180 QGIG 484 at [208] said:

"… 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.".

[268] The Full Bench was advised of major investment projects currently being constructed in Mackay and many others planned for the near future. The lack of Sunday trading does not appear to have been a disincentive to such investment. Further, there was no evidence to suggest that the businesses supporting the NRA's application were unprofitable and needed Sunday trading to become profitable. Clearly the major retailers in the area are currently operating profitably in the absence of Sunday trading, and there is no evidence that they will not continue to do so if the present application is not granted.

[269] We then had evidence from a number of small businesses who are opposed to the application. They fear that their most profitable trading day - Sunday - will be lost should the application be granted. The Act has, over many years, provided a protection on Sundays for small and medium businesses. It is clear that Sundays are the most profitable trading day of the week for most small convenience stores. To deprive convenience stores of much of their Sunday trade will seriously affect their profit margin.

[270] Essentially, this application seeks the extension of trading hours so that the major supermarkets and the shopping centres in Mackay, Sarina and Walkerston can trade on Sundays and certain public holidays. It is for the applicant in such matters, the NRA, to justify the need to extend trading hours based on the legislative criteria contained in s. 26 of the Act. We endorse the comments of the Full Bench at [239] in National Retail Association Limited, Union of Employers (Regional Queensland (Southern & Eastern Area)) (2005) 180 QGIG 484 that organisations such as the QRTSA "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.".

[271] However, there are some aspects of the case conducted by the QRTSA which require comment. There was a great deal of emphasis placed on attempting to establish that major retailers advocating the introduction of Sunday trading are motivated by profit, and on attempting to draw an adverse inference about this. In our view all commercial businesses are motivated by profit and it would be surprising if they were not. Businesses opposing Sunday trading are just as motivated by profit as those advocating its introduction. We also take issue with the suggestion to a number of witnesses for the NRA, that major retailers do not make a contribution to the local community. Major retailers make generous donations to charitable causes at a number of levels including national, State and local. Donations to charitable causes at a national and State level also have a positive impact on local communities and we reject any implication that major retailers do not contribute to local communities. In our view, both of these lines of attack in the case conducted by the QRTSA were pointless. We are also of the view that the QRTSA put very little evidence of substance from small retailers in relation to the potential impact on them if Sunday trading was introduced. In particular there was little evidence contained in witness statements about the likely financial impact on such businesses if Sunday trading was granted.

[272] During the course of submissions, the Full Bench raised with Mr Black for the NRA, whether the application was an "all or nothing" application. In that regard we were interested in whether the NRA were prepared to consider other possibilities such as the Mackay Central Business District being separated from the remainder of the area covered by the application. Mr Black's response was that his "constituents would have a significant difficulty" with that proposition. On that basis the application was, at least within the Mackay city area, taken as an "all or nothing" application.

[273] We have considered the whole of the evidence in this matter, the submissions of the NRA, the QRTSA and the AWU and have dealt with all matters required of us by s. 26 of the Act. On balance the NRA has failed to adduce sufficient evidence on most of the criteria required under the Act to warrant an extension of trading hours in the Mackay region. The NRA has not demonstrated any "special circumstances of a sufficiently significant nature" or that the situation in the Mackay area is "unique" or is "clearly distinguishable" from the general prohibition on Sunday and public holiday trading contained in the Act. This is a case where the NRA has not established an affirmative case for the introduction of Sunday trading rather than one where the QRTSA has established a negative case.

[274] In all of the circumstances, we have not been persuaded by the NRA that trading in Mackay, Sarina or Walkerston should be extended to enable non-exempt shops to trade on Sundays and certain public holidays in the Mackay Regional Council area. We thus dismiss the application.

D.M. LINNANE, Vice President. Appearances: Mr G. Black and Ms B. Seeto-Rae for the National Retail I.C. ASBURY, Commissioner. Association Limited, Union of Employers. Mr S. Driscoll and Mr K. Murphy for the Queensland Retail J.M. THOMPSON, Commissioner. Traders and Shopkeepers Association (Industrial Organization of Employers). Hearing Details: Ms S. Schinnerl for The Australian Workers' Union of 2008 5 February Employees, Queensland. 14, 15, 19, 20 & 21 May 3 June Released: 18 September 2008

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The State of Queensland 2008.