48 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 11 January, 2002
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QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Trading (Allowable Hours) Act 1990 – s. 21 – trading hours orders on non-exempt shops
Retailers’ Association of Queensland Limited, Union of Employers AND Queensland Retail Traders and Shopkeepers Association (Industrial Organisation of Employers) and Others (No. B810 of 2001)
TRADING HOURS – NON-EXEMPT SHOPS TRADING BY RETAIL – STATE
VICE PRESIDENT LINNANE COMMISSIONER EDWARDS COMMISSIONER SWAN 21 December 2001
Application to amend Trading hours non-exempt shops trading by retail – State – Trading hours sought for Sunday in Brisbane and near metropolitan areas – No opposition from major retail organisations of Employees – National Competition Policy considerations – Inspections at various locations in Sydney, Melbourne and Brisbane – Extensive witness evidence – Opposition from Queensland Retail Traders and Shopkeepers Association (Industrial Organisation of Employers), National Meat Association of Australia (Queensland Division) Industrial Organisation of Employers and Jezreel Pty Ltd – Reference to similar trading hours application heard during 1998 – considerations as to whether an “all-or-nothing” case – no “fall-back” position adopted by applicant – Impact of pre-Christmas Sunday trade considered – Application granted part only – Operative from 1 July 2002.
DECISION
This application seeks to amend the Trading Hours Order – Non Exempt Shops Trading by Retail – State (the Order) as it relates to the trade by non- exempt shops on a Sunday between the hours of 10.00a.m. and 5.00p.m. in the Brisbane and Near Metropolitan Areas. The application is made by the Retailers’ Association of Queensland Limited, Union of Employers (RAQ).
The application was not opposed by either the Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees (SDA) or the Australian Workers’ Union of Employees, Queensland (AWU). It was opposed by Queensland Retail Traders and Shopkeepers Association (Industrial Organisation of Employers) (QRTSA), National Meat Association of Australia (Queensland Division) Industrial Organisation of Employers (NMAA) and Jezreel Pty Ltd (the owner of the New Farm Merthyr Village).
Currently, within the defined area under consideration, a number of Sunday trading orders exist. These include the Area of City Heart of Inner City of Brisbane (including the Coles Express store in Edward Street) and the Area of New Farm of Inner City of Brisbane. Hardware stores may also trade on Sundays between the hours of 8.30a.m. and 4.00p.m. Non-exempt shops in the defined area are also able to trade on the last three Sundays prior to Christmas as a result of a decision of this Commission in 2000.
At the commencement of this hearing, brief submissions were made on behalf of both the Minister for Industrial Relations for the State of Queensland and the SDA. The essence of those submissions are referred to hereunder.
Minister for Industrial Relations for the State of Queensland Submission
The submissions made on behalf of the Minister neither supported nor opposed the application before the Commission. The submissions made replicate those made on previous occasions by the Minister and relate to the fact that the State of Queensland is a party to the Competition Principles Agreement (11 April 1995) made between the Commonwealth and the States and Territories.
This Agreement is part of the National Competition Policy reform package. The principles require the review of all legislation that restricts competition. The Legislation applicable to this matter (Trading (Allowable Hours) Act 1990) is one of the pieces of legislation that is listed for such review.
The Minister believes that decisions made by the Queensland Industrial Relations Commission pursuant to the provisions of the Trading (Allowable Hours) Act 1990 (Act) are an appropriate discharge of the Government’s obligations under clause 5 of the Competition Principles Agreement.
We have considered those submissions in the making of this decision.
SDA Submission
The SDA stated that it had surveyed its members with regard to the current application to ascertain their views. Approximately 83% of responses stated that the SDA should negotiate the best possible Sunday trading outcomes, primarily around the principle of work on Sundays being a matter of choice for employees.
As a consequence of this response from its members, SDA stated that it would not oppose the application as lodged. It was submitted by the SDA that negotiations with the Retailers’ Association of Queensland Limited, Union of Employers (RAQ) had produced an agreement whereby if the current application were to succeed the SDA would file an application for a new Award entitled “Voluntary Extended Trading Hours – Non-Exempt Shops – Award – State” and the RAQ would support such an application. The agreement reached with the RAQ also involved an operative date of 1 July, 2002. The RAQ confirmed those specific points of the agreement reached with the SDA. The AWU is in a similar position to that of the SDA having supported the SDA’s submissions. 11 January, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 49
Inspections
Inspections were undertaken by the Full Bench in the following areas and at the following trading venues:–
Melbourne Sydney Brisbane Melbourne CBD Sydney CBD Morayfield Shopping Centre Camberwell Burke Road Strip Centre The Homemaker SupaCentre Deception Bay Shopping Centre Chadstone Regional Shopping Centre Westfield Miranda Pick n Pay Hypermarket Broadmeadows Town Centre Menai Marketplace Westfield Chermside Epping Plaza Regional Shopping Centre Wattle Grove Spotlight Chermside The Stables Surry Hills Westfield Toombul (including Toombul Music) Office works Castle Towers Endos Paddington Myer Megamart Norwest Marketown Stones Corner Clive Peeters Newtown Westfield Carindale Marrickville Metro Clive Peeters Capalaba Park Shopping Centre Garden City Shopping Centre IKEA Logan Hyperdome Ipswich Brassal Yamanto Indooroopilly Shopping Centre Kenmore Toowong Village Cannon Hill Kmart Plaza Cleveland Harbourside Shopping Centre Merthyr Village at New Farm
The Full Bench took no oral evidence during the course of these inspections.
Whilst all witness evidence will not be specifically referred to in this decision. All such evidence has, however, been considered.
Brief Summary of RAQ Evidence
Donald Grover Mr Grover is the Store Director who is responsible for 34 David Jones Departmental Stores and two warehouse stores. Mr Grover is also an Executive Director of the Company.
Mr Grover stated that “in 1997, David Jones undertook a major research project aimed at preparing its corporate strategy and tuning its knowledge of its core customers’ profile” and he outlined to the Commission the characteristics of the David Jones target customer. The project results also considered issues touching upon lifestyle, shopping behaviour, character and behaviours, shopping experiences and recreational activities.
Evidence was given with regard to the impact of Sunday trade in David Jones Robina (Gold Coast) store. The growth in sales over the pre Christmas Sunday trading period at that location was significant when compared with sales at other times.
Mr Grover claimed that, as a national trader, David Jones was in a good position to compare the performance of stores in five Australian states. Statistics were produced to show the level of sales on a Sunday by stores across those states – e.g. in the first year of trade at the Glen Waverley in Victoria overall store sales increased by 12%.
Neill Ford Mr Ford is the Managing Director of Yellow Cabs Queensland Pty Ltd. The evidence before us is that Yellow Cabs Queensland Pty Ltd is the largest supplier of taxi services within the State.
According to the evidence of Mr Ford the introduction of the GST has had an adverse impact upon the business. Were the application to be granted, Mr Ford believed that it would assist his business significantly. Yellow Cabs also operated many “maxi taxis” and had a courier service that could guarantee a courier to transport goods within a period of 17 minutes. Mr Ford stated that much of the company’s work emanated from shopping centres.
Peter Boyington Mr Boyington is the Executive Administrator of the Colorado Group Ltd. The Colorado group is a national footwear and apparel retailer encompassing stores such as Colorado Adventure Wear, Mathers Shoes, Skids and Williams the Shoeman.
Mr Boyington stated that, based upon its retail experiences in Victoria and New South Wales, it would expect to achieve between approximately 9 to 12% of its weekly sales on a Sunday. The statistics with regard to this retailers’ business, showed that while trade had increased on a Sunday in those areas where trade was permitted, trade generally over the week had decreased but not, as Mr Boyington stated, as a consequence of Sunday trade.
Graham Day Mr Day is the Director of Sales and Marketing for Panasonic Australia. From his knowledge of sales trends within this industry, Mr Day stated that the majority of sales or decisions to buy Panasonic occurred on a weekend and particularly on a Sunday “when customers have the ability to absorb information related to the product technology and price”. Because the type of products sold and their increasing sophistication, customers need to spend time learning the operations and advantages of the product. Sunday provides an appropriate opportunity for this to occur.
Anthony Dimasi Mr Dimasi is a Director of Jebb Holland Dimasi Pty Ltd. This company was commissioned by the RAQ to prepare a research report into Sunday trading in the Brisbane and Near Metropolitan Area. Mr Dimasi’s evidence was lengthy. It is best summarised as follows:–
“This report presents the findings of a study into the economic and consumer issues of Sunday trading for retailing in the Brisbane metropolitan area. In particular, the impacts and implications of Sunday trading from the point of view of consumers and the retailers industry are considered. The major conclusions to be drawn from this study are the following: 50 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 11 January, 2002
1. The retail customer is the driver of change with respect to trading hours. Lifestyle changes and especially time pressures are the major reasons behind the consumers need for Sunday trading. Time pressures result in large part from increasing workforce participation rates for women.
2. The customers need and demand for change is evidenced by many factors, in particular:
The rapid take up of Sunday trading whenever it has been made available. For example, around 35% of consumers in Sydney and Melbourne now shop for food and groceries on Sunday. In Perth, Brisbane and Adelaide, where Sunday trading by supermarkets is not permitted, but smaller food stores can trade on Sundays, the figures are 7%-8%.
Customer surveys undertaken throughout all states of Australia in recent years have consistently demonstrated that 60%-70% of all those interviewed support Sunday trading for all retailers.
A specific referendum on the issue of Sunday trading undertaken in Bendigo in Victoria in March 1998, in response to an attempt by religious groups and others to roll back Sunday trading after it was introduced by the State Government, failed miserably. 77% of respondents voted ‘yes’ to Sunday trading in that referendum.
3. Retailers who support Sunday trading accept that consumers want Sunday shopping, and that responding to consumer needs is critical for any business in today’s increasingly competitive trading environment. Many also consider that Sunday trading adds value to a retailers’ business because it increases turnover and profit with no additional rent needing to be paid and no additional overheads incurred.
4. At a broader economic level, the Victorian experience of trading hours deregulation has clearly demonstrated the economic benefits that can result from liberal trading hours. Since Sunday trading was permitted in Victoria in December 1996, retail sales growth in the state has averaged 4.4% per annum, which has been double the total Australian average of 2.2% per annum recorded over the same period.
5. Employment in the retail sector in Victoria has also increased strongly since trading hours deregulation.
6. From the point of view of the shopping centre owner and manager, competition for consumers’ leisure time and spending will become increasingly tight in the future. Sunday trading is therefore critical to ensure that shopping is on the menu of leisure activities on Sunday.
7. Sunday trading accounts for a steadily increasing proportion of sales volume for shopping centres in states where it is permitted, a trend which reflects the lifestyle changes detailed throughout this report, in particular the increasing workforce participation of women. Weekend shopping, and especially Sunday shopping will become more important in the future as new precincts are added to shopping centres wherein shopping is increasingly orientated around leisure and entertainment.
8. Entertainment and Leisure Precincts (ELPs) have been successfully included in redevelopments of a number of major regional centres over the past year or so. The Westfield Centres at Southland in Melbourne, Marion in Adelaide, Carousel in Perth, and Chermside in Brisbane are all examples. Redevelopments of other major regional centres such as Woden Plaza in Canberra by Lend Lease and Castle Towers in Sydney by QIC are other examples where a significant part of the redevelopment is focused around cafes and restaurants, including alfresco dining, and is integrated with the nearby streets or public spaces.
9. The financial decision to include such components within shopping centres (which consumers are increasingly demanding as an essential component of a regional centre in particular) is at least in part predicated on the opportunity for those precincts to trade on Sundays, which is one of the two most important leisure and recreation days of the week.
10. The absence of political support for Sunday trading in some states in large part appears to be due to the views of a vocal minority of retailers. At this stage their views are outweighing the very strong but somewhat silent majority of consumers and other retailers, who clearly see benefits in Sunday trading and who wish to be able to shop and trade on Sundays as their counterparts in states such as New South Wales and Victoria are able to do.
11. The experience in those States where Sunday trading has been introduced, and particularly most recently in Victoria, suggests that there is little to be concerned about in terms of negative economic impacts resulting from Sunday trading. Indeed the reverse is true – Sunday trading is much more likely to result in substantial positive economic benefits to the Queensland retail sector and to the Queensland economy overall. At the same time, Sunday trading would fulfil the clearly expressed needs and wishes of Brisbane metropolitan residents.”.
Stephen John Felix Booth Mr Booth is the External Affairs Co-ordinator of Coles Supermarkets Queensland. As the External Affairs Co-ordinator Mr Booth has responsibility for the operation of some 98 stores in Queensland and northern New South Wales and 89 of those stores are in Queensland. 40 of those stores are located in the area covered by the application. All of those stores open for all of the current allowable weekly trading hours – ie Monday to Friday 8.00a.m. to 9.00p.m., Saturday 8.00a.m. to 5.00p.m., and closed on Sundays. Beyond those stores, some 21 Coles stores open on a Sunday in areas such as the Gold Coast, the Sunshine Coast, the Cairns tourist area, the Douglas Shire Tourist areas, New Farm and the Brisbane City Heart area (Coles Express stores in the Myer Centre and Edward Street).
Mr Booth claimed that, were the application to be granted, it was anticipated that the Brisbane and Metropolitan Coles stores would closely resemble the daily Sydney and Melbourne percentages. In terms of its New Farm store which has had the ability to trade on Sundays since late in 2000, Mr Booth claimed that there had been a general increase in trade over the store’s pre-Sunday trading figures. Overall, the sales in stores able to trade on a Sunday, indicate that Sunday is the second highest sales day of the week. Mr Booth believed that customers quickly accepted Sunday trading at New Farm. Monday and Saturday sales declined somewhat post-Sunday trading however Saturday still represents the major trading day of the week. On the basis of sales achieved per hour, “Sunday is now the busiest day of the week”.
Because of the popularity of the New Farm store on a Sunday, Mr Booth stated that “if this application is granted, we are very confident that customers in the Brisbane and near Metropolitan area will readily accept Sunday trading, support it with their patronage, and thereby lessen congestion in our Brisbane and near Metropolitan stores on Saturdays.”.
Mr Booth also referred to a projected growth in employment as a consequence of extended trading hours.
Customer surveys conducted at the New Farm stores showed that, amongst other things, 87.8% of those surveyed stated that they came to the Coles centre at New Farm on a Sunday primarily because Coles was open for trade. When shown a map of the defined area of this application, Mr Booth said that the vast majority of shoppers at the New Farm Centre lived within that vicinity. When asked if other major non-exempt retailers within the Brisbane Metropolitan area should be permitted to trade on a Sunday, 88% of those surveyed agreed. 11 January, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 51
Mr Booth also gave evidence as to the effect on trade in Coles’ stores on the three Sundays prior to Christmas 2000. Mr Booth claimed that stores, during this discrete period, experienced solid trade and that customers had responded positively to trade on a Sunday.
According to Mr Booth the “flow-on” affect of extended trade on Sundays in terms of added employment within the industry would cover areas such as:–
“Warehousing and distribution of general goods; Warehousing and distribution of dairy and frozen goods; Extra bread and milk deliveries; Specific warehousing and distribution of fruit and vegetables; General service contractors (eg electricians, plumbers, refrigeration and cash register mechanics)”.
Mr Booth did indicate that probably there would be little, if any, added employment in the refrigeration area.
Overall, Mr Booth claimed that:-
“Sunday is a popular shopping day for customers at our New Farm stores, at our Sunday trading tourist area stores in Queensland, and in our stores in metropolitan Melbourne and Sydney, and was well patronised on the three Sundays pre Christmas in 2000.
We are confident that permanent Sunday trading would similarly become a popular shopping day in the Brisbane and near Metropolitan area with the grant of the application.
The grant of the application would benefit our customers, our staff, our contractors, our suppliers, our operating procedures and the public at large.”.
Spero Hrisostomou Mr Hrisostomou is the National Sales and Operations Manager for Foot Locker Australia. Foot Locker is an international company with its Head Office based in Brisbane. There are 71 stores within Australia with 17 stores in Queensland. Seven stores are unable to trade on a Sunday, falling within the currently prohibited area. All of those stores are located within shopping centres.
Mr Hrisostomou stated that “[l]andlords are reluctant to open a centre on Sundays just for one or two retailers to trade or alternatively Footlocker would be responsible for additional security and utility costs. We believe that Sunday trading is not a successful venture unless the shopping centre is operating and we can trade with other tenants.”.
Because of its specialised sporting footwear, Foot Locker stores require “intensive customer service to ensure that the proper product is aligned with the customer’s needs and it is an appropriate fit.”. The nature of the business is such that a largely family orientated clientele visited these stores. Sunday trade would, according to Mr Hrisostomou appropriately facilitate this need.
Trade on the three Sundays prior to Christmas 2000 was good for Foot Locker stores and should, according to Mr Hrisostomou, be reflected in trade on a Sunday generally, thereby creating greater employment opportunities.
Kristine Malone Ms Malone is the Human Resources Manager of IKEA in Brisbane. Ms Malone’s evidence was that “the concept of the IKEA stores is to be the complete one-stop furniture store for the home – with our range offering choices from small accessory items through to large furniture items such as sofas and beds.”.
The IKEA store offers a supervised children’s play/recreational area and an in-store café reinforcing “the ability for a visit to the store to be a relaxed longer one.” Sunday trading would assist families in this regard, according to Ms Malone.
Ms Malone claimed that Saturday trade was “overwhelming” with approximately 1400 visitors on average through the store. Ms Malone claimed that “the IKEA carpark cannot manage the demand on a Saturday, with customers queuing for parking in the surrounding local streets. Sunday trade would allow this huge demand to be spread over the weekend, providing for a much better, relaxed shopping environment for our customers.”.
Ms Malone believed that IKEA in some respects competed against hardware stores such as BBC Hardware and Bunnings stores which were now permitted to trade on a Sunday.
Barry Bull Mr Bull is the owner of Toombul Music which is located at the Westfield Toombul Shoppingtown. Mr Bull stated that his business represents a “lifestyle business”. He advised the Bench of some of the difficulties his business faced in not trading on a Sunday. In particular Mr Bull gave evidence of the recording industry decision “to release Superstar products on a Sunday and the compilation of the national charts also begins on a Sunday. A significant amount of retail trading in Australia including in the Brisbane CBD, occurs on Sundays. This greatly disadvantages me, because most customers want their favourite piece of music, the day it is released, and compromises my credibility to them as I am unable to compete on the most important day for sales of a new release.”.
Mr Bull states that while families spend shopping time together on Saturdays it is on Sundays that they “make joint buying decisions.” Mr Bull believed that it was discriminatory that hardware stores, New Farm, City traders, and other ‘big businesses’ were permitted to trade on a Sunday when the non- exempt shops, outside those areas, were not.
Whilst Mr Bull’s store was an exempt store and therefore not prevented by the legislation from opening on a Sunday the fact that non-exempt stores at the Toombul Shoppingtown were unable to open on Sundays meant that it was impracticable for his store to open on Sundays.
Elizabeth Dangar Ms Dangar is Chairwoman of Dangar Research Group Ltd. Dangar Research was commissioned by the RAQ to conduct qualitative research evaluating the attitudes towards extending Sunday trading throughout the Brisbane Metropolitan Area. “Qualitative research” is not statistically based – it is an established practice which is specially designed to gain insight into the motivations and attitudes which impact on consumer opinions and behaviour. According to Ms Dangar “[the] most common technique used in qualitative research is the group discussion which typically involves six to eight respondents, recruited according to specified characteristics, coming to a central location and exchanging views about the particular topics being reviewed.”. 52 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 11 January, 2002
Trends identified in her research included:–
• The majority of Brisbane residents participating in this study were in favour of extended Sunday trading; • The social climate of Brisbane was changing; • Sydney and Melbourne Sunday trading was widely known; • Consumers wanted to shop “in one’s own time”; • Significant changes had already occurred in retailing – e.g. late night shopping and Sunday trading; • Sunday trading in shopping centres was seen to have a number of advantages by its supporters, eg Sunday shopping allowed family groups to shop together at leisure; • Late shopping was not always viewed as an attractive proposition for consumers; • Saturday was often consumed by leisure or sporting activities – Saturday shopping was viewed as “pressured” or “hassled”; • All participants sometimes shopped on Sundays at large retail outlets and/or shopping centres; • Participants saw shopping centres as providing a wide choice of products and goods; • Participants spoke of a desire to shop on an “as needs” basis for products such as fresh foods; • Nearly all participants claimed that they would shop on a Sunday if shopping centres were open; and • Those opposed to Sunday trading cited a range of reasons for their opposition for example Sunday as a family day; religious grounds; the effect of Sunday trading upon small businesses.
In summarising the case for Sunday trading, the research found the following factors to be evident:–
• Freedom of Choice; • Less Saturday chaos; • Convenience; • A leisure option; • Implications for Brisbane; and • Economic benefits.
In summarising the case against Sunday trading, the following factors were evident:–
• Religious standpoint; • Erosion of family life; • Exacerbating materialism; and • Negative Impact on small business.
Steven Woolgar Mr Woolgar is the National Operations Manager of Angus and Robertson Bookworld. This Company has 33 stores in Queensland together with 7 franchise stores. These stores are classified as exempt shops under the Trading (Allowable Hours) Act 1990, however, in practice, the stores are unable to open because most are located within shopping centres.
Mr Woolgar states that to operate successful Sunday trading for these stores requires a mix of retailers to open for trade in shopping centres. Pre- Christmas Sunday trading produced good sales figures for this trader. From that experience, Mr Woolgar claimed that congestion occurs at some shopping centres (e.g. Chermside) on Saturdays and Thursday nights and that trade on a Sunday at shopping centres would help alleviate these problems.
According to Mr Woolgar the nature of the product meant that customers needed time in which to browse and read back-covers of books and such time would be available on a Sunday.
Laurence Ralph Brindle Mr Brindle is the Executive General Manager of the Queensland Investment Corporation (QIC) responsible for Property Investment and is also a member of the Executive Committee of the Shopping Centre Council of Australia as it forms part of the Property Council of Australia. Within these capacities, Mr Brindle gave his evidence. QIC owns, manages and develops major shopping centres in Queensland, New South Wales, ACT and Victoria. The shopping centres located within Queensland which QIC own and/or manage are Grand Central, Toowoomba; Logan Hyperdome, Loganholme and Robina Town Centre, Robina
It was the evidence of Mr Brindle that “as a manager of mainly long term superannuation investment funds on behalf of over 400,000 Queensland superannuants, QIC is well placed to provide an investors’ perspective of how Sunday trading in the Brisbane retail market will affect the viability and potentially the capital value of these shopping centres.”.
Mr Brindle further states that:–
“QIC considers the outcome of this case to be a critical issue for the continued viability of participants in the industry and its future development. The Queensland Retail Industry is the state’s single largest employing industry and continued restriction of seven day trading hours in this market will only serve to reduce investment and development attractiveness.
The Brisbane area has the highest concentration of retail shopping precincts in the state and the lack of seven day trading will continue to have a negative impact on investor sentiment in this asset sector.”.
The business rationale behind the promotion of major shopping centres centred upon a range of factors which included the following:–
• That major retailers needed good locations with convenient car parking and large low cost space from which to operate; • That major retailers attract larger numbers of customers; • Specialty retailers generate potentially greater profits by being co-located with major retailers, adjacent to high customer traffic flows rather than in lower traffic stand alone strip sites; and • Property developers and investors are able to bring together all necessary inputs (land, capital, infrastructure, retailers and customers) for the modern regional shopping centre to emerge, develop and flourish.
Mr Brindle also stated that a major development strategy for owners is to redevelop large shopping centres as urban entertainment centres. 11 January, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 53
Concentrating specifically on the Logan Hyperdome Centre, Mr Brindle offered the following statistics:–
• The Centre has 206 tenants including 198 speciality shops and 8 majors; • The traffic flow patterns for the Centre show that total annual traffic was over 8 million people; • Saturdays represented 18.5% of the weekly count; • Thursdays represented 21.8% of the weekly count; and • Thursday nights from 6.00pm to 9.00pm represent an average of 18.75% of the average Thursday count.
Mr Brindle believed that, based upon those statistics “Sunday trading would provide an additional shopping opportunity for our customers that would ease the congestion in our center and car parks on Thursday night and Saturdays, and allow us to develop and promote Sunday as a leisure and entertainment shopping day for our customers.”.
Mr Brindle also advised the Commission that “[a]t a meeting held on Thursday 25 October 2001, of the Executive Committee of the Shopping Centre Council of Australia, it was decided to seek a written undertaking from all Brisbane metropolitan owner representatives that retailers will be given the choice to trade on Sundays in the Brisbane and Near Metropolitan Area in the event this application is successful.”.
Through Mr Brindle the Bench was provided with a list of members of the Shopping Centre Council and the shopping centres they own in the defined area the subject of this application. Correspondence from Milton Cockburn, Executive Director of the Shopping Centre Council of Australia was also tendered through Mr Brindle which referred to a resolution passed at the Council meeting of 8 November, 2001 to the following effect:-
“The SCCA resolves that, if Sunday trading is approved in the Brisbane and Near-Metropolitan Case by the Queensland Industrial Relations Commission, shop traders in relevant centers will have the option to trade or not to trade on Sundays. While it is the policy of the SCCA to encourage participation in Sunday trading, no undue pressure will be brought to bear upon shop traders to open on Sundays.”
This evidence was a major factor in our determination to allow Sunday trading in the area granted in this application.
Linda Cave Ms Cave is the Senior Centre Manager – Queensland for Westfield. Ms Cave is responsible for Westfield Carindale and she has the supervisory role over the other Westfield Queensland Centres. According to Ms Cave “Westfield Shopping Centres are located in Australia, the United States of America, New Zealand and the United Kingdom with 86 shopping centres, 6 major US airport retail plazas. Westfield has $22.5 billion of shopping centre assets under management with 13,100 retailers in 6 million square metres of retail space.”.
Services offered by Westfield to its retailers within its centres include:–
• Retail Skills Seminars; • Servicing the Retailer Program Consultation; • Category Meetings; • Management Skills Development; • Overseas Study Tours; • Retailer skills development; and • Community support.
Ms Cave’s evidence went to the Westfield Centres at Carindale, Strathpine and Toombul.
Ms Cave claimed that a significant number of Australians have “a direct investment in retail properties and many more who have an indirect stake through their super funds.”.
Noel Charlish Mr Charlish is the Store Manager for Myer Brisbane City. Mr Charlish was giving evidence also for the Myer suburban stores within the area under consideration in this application. Mr Charlish gave evidence of the Myer stores that were able to trade on Sundays and how the customers that frequented the stores on those days were primarily family, group or couple based shopping. For these customers, Sunday trade provided a leisurely manner in which to shop. According to Mr Charlish, Sunday trade conducted within Myer stores located in New South Wales and Victoria was always busy.
Were the application to be granted, Mr Charlish predicted that an extra 430 employees would be employed in Myer stores in the defined area.
Concerning the period during which Myer stores traded for the first two Sunday trading days prior to Christmas 2000, it was stated that “these stores (i.e. the Brisbane suburban stores) traded well, with an average of 10% done across these two Sundays and the third traded at approximately 20% in the 6 Brisbane suburban stores.”.
Dr Gerd Haberkern Dr Haberkern is the Head of Research for Enhance Management. Enhance Management was commissioned by the RAQ to conduct research into community attitudes towards Sunday trading in the Brisbane and Near Metropolitan Area between the hours 10.00a.m. and 5.00p.m. for non-exempt shops. The Executive Summary produced by Dr Haberkern in his Report is cited hereunder:–
“Executive Summary
This report presents the results of a quantitative research telephone survey of the Brisbane community commissioned by the Retailers Association of Queensland in association with an application to the Queensland Industrial Relations Commission to amend the Trading Hours Order for Non- Exempt Shops Trading by Retail, specifically to provide allowable hours for Sunday trading in an area defined as the Brisbane and Near Metropolitan Area.
The objectives for the research were to quantify the proportion of people in the community who agree with the specific proposal for Sunday trading, and to understand the level of agreement in the context of their attitudes, behaviour and demographics, including attitudes and perceptions about Sunday trading, shopping trends and lifestyle trends.
The results of the survey are presented for the primary sample of 800 respondents resident across the Brisbane and Near Metropolitan Area (‘the Area’), but excluding the New Farm, Brisbane CBD and inner city areas of Brisbane, and contrasted with a secondary sample of 100 respondents resident in the New Farm, CBD and inner city areas. 54 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 11 January, 2002
The key result of this research is that on being read as full a description of the proposal as possible (within reason), including the meaning of ‘non- exempt shop’ and the geographic extent proposed, almost two-thirds (66%) of the community in the Area say they think that non-exempt shops should be allowed to open on Sundays. In the New Farm/CBD/Inner city area where residents have Sunday shopping locally, 84% think that Sunday shopping should be allowed in the wider Brisbane area.
Convenience, flexibility and accessibility to shops summarise the main reasons mentioned by respondents in the Area for being in favour of the proposal. Other key reasons include constraints on their time due to work and other commitments and belief in freedom of choice. Freedom of choice is the most mentioned reason among New Farm/CBD/Inner city respondents.
Almost three-quarters of respondents in the Area say they would shop on Sundays in shops/shopping centres that are currently closed in Brisbane, if the proposal was successful.
Those envisaging shopping on Sunday in the Area would most often be shopping for things for themselves or family and friends. The majority of Sunday shoppers in the Area would not be shopping alone – but with their partner, children, friends or relatives. Shopping on Sundays is very clearly perceived as a social activity by the majority.
That Sunday trading is well used when it is available is borne out by about 85% of respondents in the New Farm/CBD/Inner city area currently making use of Sunday shopping in New Farm. Almost a quarter shop every Sunday.
Using a series of attitudinal statements with which respondents could give their level of agreement or disagreement, a high level of agreement is found with the statement that people should have the option to shop on Sundays if they want. There is also general agreement that shops opening on Sundays throughout Brisbane is inevitable.
Respondents were also asked their thoughts on the impact that non-exempt shops opening on Sundays would have on small business. The most held perception is that it would lead to closure of or loss of trade by small businesses. A smaller proportion of the community believes there will be little or no impact on small business. Also, some see Sunday trading by non-exempt shops as beneficial for small business.
In order to gain a fuller appreciation about attitudes to Sunday trading, respondents were asked about their usual shopping behaviour and their attitudes to some suggested shopping trends.
Food and grocery shopping and shopping for things for themselves, family and friends are more often than not solo activities, or sometimes involving a partner or spouse. Shopping for homewares tends to be more common with a partner/spouse. This pattern contrasts with anticipated Sunday shopping which is seen much more as a social activity involving children, friends and relatives.
Shops in the Area are perceived as congested on Saturdays and also Thursdays, especially in the evenings. Moreover, about half the respondents in the New Farm/CBD/Inner city area have concerns about congestion on Sundays. By being open on Sundays, the New Farm shopping area may well be drawing people from a wide area of Brisbane, not just locally.
No clear agreement emerges on the range of possible trends in shopping that were suggested to respondents. The highest level of agreement is on having less time for shopping than they used to.
Lifestyle trends were also prompted to respondents. A majority of residents of the Area agree that they like how Brisbane is becoming more cosmopolitan. There is also a tendency to agree rather than disagree that life is becoming more stressful, and that Saturdays are increasingly occupied with chores and family activities.
In order to better understand the motivations or drivers of people’s view about Sunday trading, significant differences in response between those who think non-exempt shops should be allowed to open and those with the contrary opinion were examined. With respect to the attitudinal statements tested, the best distinguishers between the two groups is the belief that ‘people should have the option to shop on Sundays if they want’ and ‘people should be able to organise themselves to shop in six days from Monday to Saturday.’. Those in favour of non-exempt shops trading on Sundays tend to agree with the former and disagree with the latter.
In terms of their demographics, people more strongly supportive of Sunday tend to be younger, more likely to be a lone parent and more likely to be an immigrant to Brisbane in the past five years.
Clear statistical associations in the survey data are also apparent. Attitudes and perceptions associated with those in favour of Sunday trading in the Area include enjoyment of shopping, seeing shopping as a social activity, and being busy with chores and family. These people also tend to view Sunday shopping as providing more social opportunities, making Brisbane more attractive to tourists and visitors, easing pressure on Saturdays, increasing their personal convenience, bringing Brisbane up to date with other cities, creating more jobs, enhancing their lifestyles, and inevitable.
Statistical analysis further shows that the primary driver for support of the proposal among the Area’s general community is that it would be personally convenient for suburban shops and shopping centres to open on Sundays. Additional drivers include the belief that it should not be necessary to be personally organised to shop in the other six days, and a belief in freedom of choice about opening hours for retailers. Supporters also perceive that Sunday trading will create new jobs and provide them with more social opportunities.”.
Greg Smith Mr Smith is the Managing Director of Clive Peeters. Clive Peeters is a privately owned computer and electrical retailer that operate four stores in Victoria. A Brisbane store opened in mid-September and is the largest store of its kind in Australia and will have a specific focus on computers and an electrical goods operation. This business has structured itself in such a manner as to comply with current Queensland trading laws.
It was the evidence of Mr Smith that he was aware “of the RAQ’s application pursuing permanent Sunday trading in the ‘Brisbane and Near Metropolitan Area’. The Board of Clive Peeters supports this application and is awaiting the outcome of this decision as it will influence the way in which we will take in the Brisbane market, and, it will clearly shape the Board’s decision in relation to further developments in the Queensland market.”.
It is the company’s plan to establish five stores around Brisbane North, South, East West and inner city within twenty-four months should the application be granted. This would result in the employment of an extra 200 employees over a three year period with an extra 100 employees on the Gold Coast and Sunshine Coast.
Mr Smith stated “Sunday trading accounts for twenty five per cent of our total weekly sales, in the Victorian market, with no negative effect on the other days of the week.” 11 January, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 55
The emphasis of Mr Smith’s evidence was on the need for consumers to be able to shop in a leisurely manner.
Daniel Gschwind Mr Gschwind is the Chief Executive Officer of Queensland Tourism Industry Corporation (QTIC). The QTIC board has discussed the matter and have agreed to support the RAQ’s application. It was the evidence of Mr Gschwind that “QTIC is the state peak body for tourism. We are a not-for-profit membership organisation. QTIC works closely with key governing agencies as a principal lobbying force on a Local, State and Federal level.”.
Mr Gschwind stated that tourism in Queensland accounts for $6.1 billion of the State’s economic activity. The net effect would represent $14.6 billion in expenditure in Queensland by day-visitors, interstate visitors, international visitors and Queensland residents taking overnight trips interstate and overseas. Tourism directly accounts for the employment of some 136,000 in the 1998-99 period. In terms of shopping expenditure, this represented approximately $2.2 billion or 15% of total visitor expenditure in Queensland during the 1998-99 period.
In terms of activities pursued by domestic visitors to Brisbane, shopping came third to visiting friends and relatives and visiting restaurants. 82% of international visitors stated that shopping was their preferred option.
Further Mr Gschwind’s evidence was that “[t]he tourism industry is vital to [the] Queensland economy and as demonstrated by recent research the Tourist Industry is complimented immensely by the Retail Industry. Part of the role of the Tourist Industry is to assist in providing a convenient and comfortable shopping experience for visitors which is why we support the RAQ’s application for Sunday trading.”.
Bruce Dier Mr Dier is UMR Research Pty Ltd (UMR), Chief Project Officer. UMR was commissioned by RAQ to conduct consumer research into the attitudes of people towards Sunday trading between 10.00a.m. and 5.00p.m. for non-exempt shops in the Brisbane and Near Metropolitan Area. The key findings out of this research were:-
“There is widespread support across the metropolitan areas of Brisbane considered in this report for the RAQ proposal to allow Sunday trading in non-exempt shops on a permanent basis. The support is consistent across the population except for people aged over 60 and (what amounts largely to the same group) those who are not working. This latter classification – ‘those who are not working’ – excludes full-time homemakers and students, both groups that strongly support permanent Sunday trading.
The reasons for supporting the proposal relate overwhelmingly to busy modern-day lifestyles and the corresponding desire of people for greater flexibility and convenience. Those who are busy during the day, either in paid employment, full-time homemaking or studying, generally want larger shops to open on Sundays. Some people, however, express different reasons for wanting Sunday trading – that it will prevent them from having to rush out for last-minute shopping on other days, because they expect crowds will be smaller on Sundays or because they simply enjoy shopping on Sundays.
The people who oppose Sunday trading tend either to believe that existing opening hours are sufficient or else they worry about an adverse impact on smaller retailers.
Overall, 57% of residents support the RAQ proposal and 36% oppose it. Support is particularly strong amongst people under 40 [18-29 years, 64% support; 30-39 years, 69% support], moderately strong amongst people in their 40s [52%] and 50s [54%] but low amongst the over 60s [40% support, 48% oppose]. Women are slightly more supportive of the proposal than men [59% support compared to 54% of men], including full-time homemakers whose support is especially strong at 65%.
Consistent with this, 64% believe that Sunday trading for non-exempt shops would be convenient for them, double the proportion who don’t think it would offer them any added convenience [32%]. The majority 64% includes three quarters of full-time workers, three quarters of casual workers and 61% of part-time workers. Their reasons for believing that Sunday trading will bring convenience closely mirror the reasons given for supporting of the RAQ proposal – that it will bring flexibility and will suit the lifestyles of busy, working people.
A similar number again, 65%, indicates an expectation to utilise Sunday trading if it becomes allowed. This includes 60% of men, 69% of women and 72% of full-time workers.
Interestingly, only 47% of full-time homemakers believe permanent Sunday trading will be convenient for them but 71% of them expect to utilise it. During December, full-time homemakers were prominent users of the pre-Christmas Sunday trading hours – 65% of them shopped at a non-exempt store on at least one Sunday between the 3rd and the 17th of December, compared to 37% of the overall population considered in this report.”
Mr Dier did not view statistics surrounding trade on the Sundays prior to Christmas as being reflective of consumer views generally with regard to Sunday trade.
Shane Derek Thornton Mr Thornton is the Area Manager for Big W Discount Stores. Big W currently has 11 stores located in the Brisbane and Near Metropolitan area. Mr Thornton gave evidence of the fact that Big W distributed marketing brochures generally on a Sunday because various stores were able to trade on a Sunday. Where stores were unable to trade on a Sunday Mr Thornton was of the view that this had a detrimental effect on business. According to Mr Thornton “by having Sunday trading we would be able to maximize the brochure delivery on Saturday which would allow customers to shop for brochure specials on Sunday instead of the following Saturday” which is currently the case.
Mr Thornton reiterated comments made by most witnesses for RAQ in that Sunday was seen as a family orientated shopping day and there was greater convenience afforded to customers with the availability of Sunday trading .
A comparison was made by Mr Thornton between the products currently offered by Big W which were also offered by competitors of Big W who were permitted to open on a Sunday and in all cases approximately 75-80% of the product range could be purchased on Sundays through the other competitors.
An analysis was then given with regard to the various Big W stores within the area under consideration in this decision. A general profile was offered of the type of customers within the different areas together with a reference to the surrounding traders who could open on a Sunday.
Brief Summary of Jezreel Pty Ltd Evidence
Alfredo Sorbello Mr Sorbello is a Director and Shareholder of a family owned company named Jezreel Pty Ltd. Jezreel Pty Ltd owns the Merthyr Village Shopping Centre at New Farm. There is a Coles Supermarket in the Methyr Village. Whilst Mr Sorbello viewed himself as an expert witness before the 56 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 11 January, 2002
Commission the Full Bench, whilst acknowledging Mr Sorbello’s extensive involvement within his area of business, did not view him in the same light as one might normally consider an “expert” witness giving evidence before this Commission.
In an earlier decision of the Commission, Retailers’ Association of Queensland Ltd, Union of Employers and Queensland Retail Traders and Shopkeepers Association (Industrial Organisation of Employers and Others 165 QGIG 179 (Matter No. B177 of 2000), Coles Supermarket at Merthyr Village was permitted to trade on Sundays. Whilst Mr Sorbello and Jezreel Pty Ltd opposed the RAQ’s application in this matter Mr Sorbello did state that he could envisage other inner-city areas within Brisbane as qualifying for Sunday trading hours on the same basis as that afforded to the New Farm area. He cited West End/Highgate Hill as an example. However, beyond that type of location, Mr Sorbello did not believe that Sunday trading should be granted across the remainder of the area under consideration.
It was the evidence of Mr Sorbello that –
“The largest negative impact of widespread Sunday trading will be on small centres and small business, in particular small business in small centers. Large supermarkets in small centres will also be affected.
. . .
Sunday trading for the whole of the Brisbane and Near Metropolitan area will affect the hierarchy of shopping centres in Brisbane. If this application is granted, many neighborhood centres would be relegated to convenience type centres and many would soon become unviable. Many suburban centre customers will be more inclined to travel further and shop at the larger shopping centres on Sunday for their major weekly shop. This trend would be unsustainable for small and medium centers as there is no room for the potential number of centres envisaged by the current application that will cater primarily toward the ‘convenience’ market.”.
In terms of retail trade on days of the week other than Sundays, Mr Sorbello believed that many localities within the area under consideration would “experience a loss of weekly and Saturday business and at the same time have an unsatisfactory, and possible non-viable Sunday trade.”
Mr Sorbello rejects the proposition that trading on a Sunday at the Coles store at Merthyr Village is the reason behind that store’s success. Mr Sorbello states that there are many reasons for Coles, Merthyr Village success and these include:–
• Merthyr Village is situated in the heart of the most densely populated area of Queensland; • New Farm occupies only a small area and Coles acts as the convenience supermarket in the convenience centre; • Many customers walk to the centre; • Residents of New Farm are ‘time-poor’ city workers and “except for Coles Sunday trading they would probably be more inclined to shop where they work.”; • The New Farm shopping centre area does not have any significant amount of office workers in the suburb during normal working hours; • New Farm is one of only a few suburbs that have both a high-density population base and a high proportion of couples with double incomes and no children; • Tourist day trip areas such as New Farm Park, the Powerhouse Arts Complex, and the two City-Cat stops bring many thousands of people to New Farm every Sunday; • “Currently, there is no other full-line supermarket within a radius of many kilometers of Coles New Farm.”; • Merthyr Village is the most cosmopolitan shopping centre in Queensland with a strong Italian influence; • 20 years planning and research went into the making of Merthyr Village; • The tenancy mix at Merthyr Village is broad; • The ratio of retail to services is heavily weighted to services; • The design of the New Farm supermarket is conducive to 7-day extended trading; • Merthyr Village retailers are on gross leases and no tenant, with the exception of Coles, is on a turnover-based rental; and • That Merthyr Village was a ‘destination’.
Mr Sorbello referred to the number of supermarkets planned within the catchment area of New Farm indicating that the “number of supermarkets planned to open in the Coles New Farm’s current primary trade area shows that a high over supply is looming for the inner city area…a future oversupply will obviously result in reduced business for the existing supermarket.”.
On the question of alleged congestion around the Merthyr Village it was Mr Sorbello’s belief that “any congestion at New Farm is caused by the lack of checkout facilities for the size and turnover of the supermarket.”. Mr Sorbello claims that the problem with the number of checkout facilities at the New Farm store (which are apparently fewer than the average in other Coles stores) was a design fault on the part of Coles, dating back to 1995/1996.
Mr Sorbello conducted his own inspections of other trading centres in the area under consideration together with inspections conducted on the Gold Coast where Sunday trading occurs. From these inspections, Mr Sorbello stated that it was “a simple exercise to see first-hand that only some of the larger shopping centers were trading successfully, but all traded well below capacity. Most and possibly all small shopping centres were trading poorly on the Sundays that I visited.”.
In terms of the Gold Coast situation, it was the opinion of Mr Sorbello that “to understand how widespread Sunday shopping will effect the Queensland retailing environment, one must have regard to the effects of Sunday trading on those areas in Queensland, which already trade on Sundays. This knowledge would include an assessment of the performance of small to medium type centres where the non-exempt stores are permitted to trade in concert. In particular, I am referring to the Gold Coast region as being a prime example of an area suffering from Sunday Trading as far as small business and small shopping centers are concerned even after allowing for additional business that tourists bring to the Gold Coast area.”.
In terms of a perceived view that the cost of supermarket goods on a Sunday was cheaper than would occur on other days of the week, Mr Sorbello expressed the opinion that this could not “be the case because most large businesses pay rental proportional to turnover and turnover is more expensive to achieve on Sundays, due to the higher wages that have to be paid.” It should be noted that this view was not borne out in the other evidence before the Bench.
Mr Sorbello challenged Mr Booth’s (External Affairs Co-ordinator of Coles Supermarkets, Queensland) view that increases in business in the Coles store at Merthyr Village were attributable to Sunday trading. Mr Sorbello stated that there were many factors which needed to be considered, such as:–
• Net increases in prices for the periods compared; • The New Farm Coles growth history; • The extra hours the store is open on other days, excluding Sundays; 11 January, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 57
• Other factors, unique to Merthyr Village and Coles New Farm which contribute to the store’s ability to attract more customers than other shopping centres of its size; and • The major refit of the supermarket completed on 6 April 2001.
In terms of the impact of trading on the Sundays prior to Christmas 2000 resulting from the decision of the Commission in Retailers’ Association of Queensland Limited, Union of Employers and Queensland Retail Traders and Shopkeepers Association (Industrial Organisation of Employers and Others 165 QGIG 179 (Matter No. B177 of 2000), Mr Sorbello was of the view that “the growth rate of the New Farm Coles for the Christmas trading period in December 2000 was considerably less than the growth rate for November 2000, the first month of Sunday trading, when compared to the corresponding trading periods in the previous year.”. Mr Sorbello also claims that “any retail trading growth increases during December only occurred in large regional centers at the expense of smaller centres and small business.”.
In referring to the areas such as the Area of City Heart of Inner City of Brisbane it was Mr Sorbello’s view that the development of the Queen Street Mall in the mid 1980’s gave a major boost to inner city life over seven days per week. Mr Sorbello was also of the opinion that the Queen Street Mall was the most successful mall in Australia and he attributes its success to the fact that it is able to trade on Sundays to the exclusion of other areas of Brisbane and the Near Metropolitan Area.
Much of Mr Sorbello’s submissions went to rebutting the evidence given by Mr Booth. In summary, Mr Sorbello was of the opinion that “a considerable amount of the information expressed and implied in Mr Booth’s statement is not accurate. In many instances, Mr Booth has omitted to include, in his statement, many relevant issues and facts, which are required to correctly interpret the New Farm store’s trading details. In my opinion, Mr Booth’s statement only goes a very short distance to explaining the Coles New Farm Trading hours experience, which includes 9 extra hours on Sunday and 8 additional hours outside of Sundays.”.
Mr Sorbello claimed that if one considered the fact that on a Sunday (and three hours on a Saturday) Merthyr Village could have a primary trade area of up to 345,157 customers within 8 kilometres of his store, the real increase in customer numbers of the New Farm Coles store directly attributable to Sunday trading is only very insignificant.
Brief Summary of NMAA Evidence
Simon Jones Mr Jones is the proprietor of Simons Gallery of Meats at Ascot. Mr Jones’ current trading hours are from 6.00a.m. to 6.00p.m. week days, 7.00 a.m. to 5.30p.m. weekends at Ascot and 9.00a.m. to 7.00p.m. week days, and 9.00a.m. to 6.00p.m. weekends at Rosalie.
In evidence Mr Jones stated that since “the Coles Supermarket in the New Farm area was given Sunday trading (prior to Christmas 2000) my Ascot shop experienced a drop in both Saturday and Sunday sales of about 18%. In order to recover some of this lost trade I have been forced to increase my shop hours.”.
Statistics from Mr Jones’ stores show that the cash takings now are roughly the same as they were some three to five years ago and yet his prices have increased by 30% - 90% in response to the increased wholesale price of meat.
Terry Orreal Mr Orreal is the Manager of Terry Orreal’s Quality Meats situated in the Brendale Shopping Centre, Brendale. Mr Orreal is also the Chairman of the Brendale Focus Group, an organisation associated with the Pine Rivers Shire Council the aim of which is to promote the growth of trade and business in the Pine Rivers area.
In his evidence Mr Orreal referred to the growth in population within the Pine Rivers area which he states has almost doubled in the twenty years since 1980.
Mr Orreal also referred to the many changes that have occurred in trading hours laws over the past few years. He indicated that his business and other businesses have responded to those laws believing that they would remain current. Mr Orreal’s evidence was that Sunday is the best trading day of the week for his business. Throughout the year, the store consistently achieves between 25% and 35% of its total weekly trade on Sunday. Mr Orreal surmised that if Sunday trading were permitted within non-exempt supermarkets, his overall business would decrease by around 9%.
John Rakowski Mr Rakowski is the proprietor of Rode Meats, at Stafford. His trading hours are from 6.00a.m. to 6.00p.m. Monday to Saturday and 6.00a.m. to 5.00p.m. on a Sunday. In giving evidence Mr Rakowski stated that “[y]ears ago we traded until 9.00pm on a Thursday night. When the hours of the big shops changed we lost almost all of our Thursday evening trade, and had to decide to either put off a butcher, or start trading Sundays. We decided to trade Sunday, which is now one of our busiest days of the week”. And further that “[b]efore late night trading came in for all businesses, we used to be very busy between 5.00pm and 6.00pm. We have now lost all that trade because the supermarkets are open until 9.00pm and the people return there later to get their meat and groceries.”.
According to Mr Rakowski when the non-exempt stores were permitted to trade on the Sundays prior to Christmas in 2000 his trade fell by almost 50%.
Frank Richards Mr Richards is the proprietor of Bernie the Bargain Butcher, at Logan Central Plaza Shopping Centre, Wembley Road, Woodridge. The trading hours for Mr Richards’ store is 8.00a.m. to 6.00p.m. Monday, Tuesday, Wednesday and Friday, from 8.00a.m. to 9.00p.m. Thursday, from 8.00am to 5.00p.m. Saturday, and from 8.00a.m. to 1.00p.m. Sunday.
In giving evidence Mr Richards stated that “if supermarkets are allowed to trade seven days, I may be forced to operate extra hours to try and compete … As small businesses collectively employ a significant proportion of the workforce, such closures will cause further unemployment and have a negative effect on the economy.”.
Mr Richards also advised that he was about to open a new shop in the Taigum Shopping Centre. Mr Richards was of the view that if the Taigum Shopping Centre were to open on Sundays as a result of this application he would be forced to open his shop also. He clearly indicated that he did not want to trade on a Sunday. 58 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 11 January, 2002
Brief Summary of QRTSA Evidence
Paul Anderson Mr Anderson is the Director of Baker’s Delight trading in Kenmore. This store is situated in a small strip centre that trades seven days per week.
Mr Anderson stated that his current Sunday sales are approximately 27% of the weeks total and currently he employs 100 hours of labour on Sundays. Mr Anderson said that he chose a smaller strip centre over a shopping centre because of his belief that it would provide a competitive edge over the larger bread retailers such as Woolworths. If the non-exempt stores were to be permitted to open on Sundays then this competitive edge would disappear.
Phillip Scarff Mr Scarff is the Chief Executive of Retravision (Qld) Limited. Retravision is a buying group for its retail members and provides services such as warehousing, buying, merchandising, information technology support, advertising, accounting and training. Retravision has 96 members who have 150 shop fronts employing over 1000 staff with a turnover exceeding $350,000. Within the area under consideration, Retravision has forty three shops that would be directly affected by this application.
Mr Scarff states that Sunday trade would have an adverse effect upon his stores because:–
“In electrical retailing, we have to consider the ‘Mum and Dad’ stores, the staff in the other stores, and the effects that will flow on to their families when they have to work on Sundays.
Sundays are quality time for most people. That is the time available at present for church, social activities, and sports. It is also the only full day available for the family.
Equivalent time off on weekdays is not an acceptable compensation for having to work on Sundays. The activities and family and social contact opportunities are not there on weekdays.
For small ‘Mum and Dad’ businesses, equivalent time off is an obvious impossibility.
The Sunday trading attack on Small Business is already seen as a personal threat by staff. Some have said that they will leave for other employment that does not require Sunday work.
Community leaders, especially the churches are very concerned about the detrimental effects of Sunday Trading on their churches and their congregations and families.
In summary, there will be considerable damage to the proprietors, staff and their families. Sunday trading will impose on them a gross social injustice.”.
It was not evident to this witness that employment opportunities would be created in non-exempt stores if non-exempt stores were to be permitted to trade on Sundays. Mr Scarff expressed concern about the inability to have trained staff work on Sundays. Mr Scarff was of the opinion that customers were entitled to receive informed advice regarding their purchases and this was difficult to provide with the increased use of casual labour. In terms of the question of “more sales” being generated by Sunday trade, Mr Scarff believed that it would merely mean that the same sales would occur but would be spread over more days at a greater cost per sale.
In relation to the effect upon small country towns, Mr Scarff stated that smaller towns would suffer if Sunday trade occurred in a large metropolitan area as there would be an exodus of those customers from those small communities.
Laurence Lau Mr Lau is the owner and operator of Lawnton 5 Star Handimarket. Mr Lau states that during December 2000 (when non-exempt stores were permitted to trade on Sundays prior to Christmas) his trade “was virtually non-existent as non-exempt stores in the area, including those at Westfield Strathpine, were able to trade on a number of Sundays prior to Christmas”. Mr Lau also expressed the view that if he faced declining trade on Sundays, his “profits in turn would decline, and over time I would be forced to close my business or employ less staff in order to survive. This would impact on my community because I would no longer be able to provide the numerous services to residents that they cannot get at Coles or Woolworths”. In this regard Mr Lau advised the Bench of the services he provided to residents including elderly customers where they “give us their lists, which we fill out for them. In one case, I have given an elderly customer a lift home. It is this type of service that larger non-exempt shops do not offer. Some elderly customers sometimes do not have the energy to wheel a trolley full of groceries around a shopping complex.”.
Erica Enraght-Mooney Ms Enraght-Mooney is the joint owner of Home Sew Suppliers Pty Ltd. Ms Enraght-Mooney says that “with all day trade on Saturdays I found that the day was simply stretched into longer hours with no additional profit, only additional trading costs to our business.”.
According to Ms Enraght-Mooney extensions of trade to non-exempt stores (whether until 9.00p.m. on weekday nights or because of Christmas Trading Hours) has always had an adverse effect upon the business.
Reference was also made by Ms Enraght-Mooney to a number of factors including:–
• Comparisons between Small and Large Retailers in Shopping Centres; • Competing against Non-Exempt Retailers; • Staffing Costs; and • Attitudes of Shopping Centre Managers.
When asked if her store would trade on a Sunday in a centre where non-exempt stores were open, she stated that if she had a choice, she would not trade.
Brynley Evers Mr Evers is the proprietor of GBL Produce. This business is based at the Brisbane Markets at Rocklea and its customer base consists of smaller independently owned and operated businesses. According to Mr Evers his customer base of GBL Produce “relies heavily on Sunday trade to contribute a large percentage of their turnover in any one week. Loss of turnover would mean a necessary reduction in our operations. The less they sell, the less we need to supply. An adverse effect on smaller independent retailers means an adverse effect on the infrastructure surrounding those retailers.”. 11 January, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 59
Geoff Ashton Mr Ashton is the Chief Executive Officer of United Star Supermarkets Limited – a grocery retail buying group, trading under the brand 5 Star. 5 Star is a group of independently owned grocery stores with each store being an owner-operated small business which is the primary income source for around 260 (146 in Queensland) family businesses with each operation representing the owner’s superannuation investment as well as their family legacy. Consequently, were the application to succeed, Mr Ashton was of the opinion that jobs in these stores would be placed at risk and “there will be a major impact on the ability of small business operators to fund their own retirement and to assist their children in becoming financially independent as well.”.
When trading hours were extended in South East Queensland in 1994, Mr Ashton saw an immediate downturn in business in the independent sector. Stores in the banner group reported a decline of 10%-60% of sales turnover.
Mr Ashton was of the view that there would be “an enormous flow on effect to other businesses that rely on trade with our stores” should this application be granted. Mr Ashton gave the following examples of how many businesses would suffer indirectly if trading hours were changed including:–
“a. The inability of owners to pay outstanding debts, including the purchasing of required stock. b. The shedding of staff, as owners are unable to meet wage commitments. c. The cessation of expansion plans, due to the resultant cash flow crisis. d. An increased turnover of businesses, as owners sell to recoup losses or pay debts.”.
Further Mr Ashton said that other areas, not readily recognized, would be affected by any extension of trading hours including:–
“a. Tradesmen that service their local stores, whether suburban or country. The electricians, refrigeration mechanics, carpenters, pest control operations, cleaners and others that also rely on their local stores for income. b. The professionals – Solicitors, Accountants, Insurance Agents etc c. Real Estate owners – the people that also rely on the individual buildings or small shopping centers for their income.”.
Mr Ashton claimed that the independent industry relied upon the hours that the non-exempt stores are closed to provide a sales return sufficient to enable them to pay their fixed costs – rents, leases, taxes, wages etc.
Mr Ashton said that there were a number of reasons why the granting of the application would not be in the public interest and these included the belief that the livelihood of those who ran small businesses were at risk; that the granting of the application would affect a family’s ability to fund their own retirement; that it would reduce the opportunity for employment in family owned businesses for generations; that family quality time would be further eroded and that the adverse flow-on effect to other businesses would be significant.
Grant Sommerville Mr Sommerville is a member of the Retail Shop Leases Tribunal and is also engaged as the Membership Services Manager of Australian United Retailers (AUR). AUR is a group of independent small business owners who operate supermarkets, food markets and convenience stores. AUR represents 467 stores in total throughout Queensland, Northern New South Wales and the Northern Territory. Mr Sommerville is also the President of the QRTSA. The QRTSA has over 2800 members in the aforementioned States. Within the affected area of this application, QRTSA has approximately 1082 and in the surrounding areas, another 727 members.
Mr Sommerville stated that QRTSA had conducted a membership survey in April 2001 with the general question being “[w]hether QRTSA should continue to oppose extended trading hours applications”. The response was 81.3% agreed that opposition should continue, 7.4% disagreed and said opposition should cease and 11.3% believed that the application was irrelevant to their businesses.
Mr Sommerville saw two major groupings emerge within QRTSA membership, namely those traders who currently trade on Sundays and who use the small advantage effectively to compete against the non-exempt stores – (predominantly food retailers) and those traders who currently do not trade on Sundays and who do not want to trade on Sundays.
It was the evidence of Mr Sommerville that:–
“The growing stranglehold of Australia’s two largest retailers on the national grocery market is virtually without precedent in the world. The top 3 retail grocers in the UK have 52% market share, compared to Australia, where the duopoly holds 75%. It must be considered that this figure is an approximate only, since the carve-up of Franklins will not take full effect for up to 12 months. The percentage represents the dry packaged grocery market.”.
Mr Sommerville’s evidence was:–
“Woolworths sales for the last year were $20.9 billion for all operations. Coles sales were $23.8 billion for all operations. In total, the retail market turnover for the year 2000-2001 was $154.5 billion. This means that Woolworths share of the TOTAL retail market is 13.5% and Coles share is 15.4%. Every time a consumer spends $1, 28.9 cents ends up in Woolworths or Coles pockets. These are not retailers who need the added benefit of another day’s trade in Queensland to assist them. In fact, it should be seen that these are very successful companies who will succeed whether Sunday trading is granted or not.
AUR retailers’ figures show that Sunday (ie 14.3% of the week in terms of time) represents an average of 18.9% of the weeks trade. Whilst this is slightly higher than a normal trading day, it does not indicate a level of demand which has been argued by the RAQ and its members.
If consumer demand is so great for Sunday trading, surely the figures being done by AUR’s members on a Sunday would be much higher. We believe that in fact this application is more about shifting the dollars being spent, away from the independents to the major retailers and shopping centres.
Woolworth’s End of Year report stated that the Company’s gross profit for the year was 25.0%. AUR retailers gross profit ranges from 21.3% to 25.7% which compares very favourably with the major retailers. This proves that the independent sector is not over-priced, so pricing should not be seen as an issue when considering demand on Sunday (or any other day of the week).”.
William H Bowden Mr Bowden is the owner of W H Bowden Pty Ltd, land developers, licenced real estate agents and auctioneers, and owner of an independent shop – Brendale Supermarket, situated in the Brisbane suburbs. Mr Bowden’s shop employs 5 full-time employees and 30 casual and part-time employees. Mr Bowden’s supermarket trades 7.00a.m. to 7.00p.m. seven days per week. 60 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 11 January, 2002
Mr Bowden made reference to the change of trading hours laws during 1994, when non-exempt stores were given the ability to trade until 9.00p.m. Monday to Friday. It was Mr Bowden’s evidence that a majority of stores (i.e. specialty stores) did not open beyond 5.30p.m. on such days because “demand does not exist. I therefore believe that extended trading on Sundays is not required. In my opinion, if consumers were really demanding additional hours, they would be using the extended night trading in the first instance.”.
Alan McKenzie Mr McKenzie is the National Spokesperson for the National Association of Retailers and Grocers Australia (NARGA). It was the evidence of Mr McKenzie that when “NARGA was lobbying for a Joint Parliamentary Inquiry in 1998, we were raising concerns about the market dominance of the three major claims, having a combined market share of 80%. Now, only three years later we have witnessed the demise of Franklins and are left with a duopoly [of] Woolworths and Coles, thus creating a new landscape in Australia’s retail grocery.”.
Mr McKenzie confirmed the earlier evidence of Mr Sommerville that in the United Kingdom the top three retailers hold 52% of the market, compared with 53% in Germany and 44% in France. In the USA the top five have 34% and in Canada 56%.
In applying a public interest test to this situation, Mr McKenzie was of the view that “the public interest is threatened because duopolies are inherently anti-competitive and use their market power to diminish competition and choice and dictate terms to their suppliers to further advantage their competitive position.”.
Mr McKenzie referred the Commission to what he termed “The Victorian Experience – Post 1996 Deregulation” and in particular to the fact that “[f]igures published in ‘Retail World’ show that a total of 20 major independent banner stores (3% of total) exited the market in 1997. A total of 104 Convenience/top-up stores (almost one in five) also ceased trading.” Further Mr McKenzie said that in terms “of market share, the independents’ share of the grocery market in Victoria fell from almost 28% to 24% in 1997 – a total drop of 13% on the previous year. On the latest AC Neilsen Data (March 2001) independents now hold 18.1% of the market in Victoria.”.
Mr McKenzie also stated that the survival of rural townships depended upon the viability of its independent stores. As well, independent grocery retailers have also had to meet “massive GST compliance costs”. Costings, with regard to GST implications were provided by Mr McKenzie.
Kevin Lewis Mr Lewis and his wife operate the partnership of KJ and DJ Lewis, trading as Nightowl Convenience store Aspley. This store currently employs seven staff members with operating hours between 6.00a.m. and 12.00 midnight seven days per week.
Mr Lewis’ store is geographically situated opposite the “Pick ‘N’ Pay Hypermarket” and Mr Lewis states that “our principle trade period is after 5.00pm daily and all Sunday times when the larger stores at the Hypermarket and in the surrounding area, are predominantly closed. It is during these periods when we make our profits.”.
Mr Lewis presented evidence to show that his sales decreased significantly over the three Sunday trading days prior to Christmas in 2000 when the non- exempt stores were permitted to trade.
Terry Byles Mr Byles owns and operates the Northside Power Tools business which is located in Geebung. Mr Byles’ business currently competes with BBC Hardwarehouse and Bunnings. If the local K-Mart were permitted to trade on Sundays as a result of this application it would, according to Mr Byles, be a further “tipping” the balance in favour of large business.
In his evidence Mr Byles said that:–
“Northside Power Tools employ 3 specialist staff, including myself. We do not trade Sundays at present because we are unable to employ casual labour to allow us the flexibility to roster staff on Sunday. The only way we would be able to open a seventh day would be if myself and the two other employees all worked seven days, every week of the year!
A high level of knowledge in Power Tools is required for us to service our customers properly, especially in terms of power-tool service and repair. Those customers that would choose to shop with us on Sundays, would require the same service as they receive Monday to Saturday. Unfortunately, as a small business we cannot offer that service.”.
Ron Handley Mr Handley is the proprietor of Indooroopilly Retravision. In his evidence Mr Handley stated that:-
“Sunday trading will not increase the market penetration of electrical appliances. The production will stay the same if trade is over six or seven days.
Demand for electrical appliances does not exceed supply in this particular industry. The number of products manufactured will not change if products are sold over six or seven days.”.
Mr Handley also has a Retravision store in the Myer Centre in the Inner City of Brisbane. This store opens on Sunday and it was Mr Handley’s evidence that Saturday was a slow trading day and that Sunday sales were almost double those of sales during the ordinary course of the week.
Stuart Copeland Mr Copeland is the Shadow Minister for Families, Shadow Minister for Disability Services, Shadow Minister for Youth and Shadow Minister for the Arts within the Parliament of Queensland. In indicating his opposition to the application, Mr Copeland said that he believed “that granting the application could have serious implications for Toowoomba, especially relating to small business. To take away from their only competitive advantage in the form of after hours trading would have a disastrous effect on profitability.”.
Mr Copeland believed that the granting of the application would be a ‘step toward’ total deregulation in Queensland. It was his belief that “moves toward total deregulation, such as granting this application, are not in the interests of small business or the community as a whole. When considering ‘community’ interests, the interests of surrounding rural communities including the Toowoomba region, must be an important factor.”.
Mr Copeland also addressed the question of “Market Domination in Food Retailing” and in particular the dominance of Woolworths and Coles stores within the market.
In summary Mr Copeland was of the view that “extending Trading Hours for the Brisbane suburbs is not the answer to reinvigorating the retail sector and will only see the ultimate widespread demise of small business and with them significant job losses.”. 11 January, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 61
Rick Sullivan Mr Sullivan is the proprietor of Muffin Break, Capalaba. Mr Sullivan cited five areas of particular concern to him as a trader were the application to be granted which included:–
• penalty rates; • production costs; • disposable income; • Christmas trading; and • tourist interests.
In terms of penalty rates, Mr Sullivan was of the view that the cost impost of Sunday penalty rates to employees would be a further impediment against successful trading on a Sunday. In relation to production costs, Mr Sullivan stated that such costs “are not adjustable if trade for the day is slow and are only reduced slightly by reducing production as baking is governed by the time for each product in the oven.”.
Mr Sullivan further stated that the “general public will not have any more disposable income simply because my shop is opened longer. How and from whom will I recoup the extra costs associated with being open every Sunday?”.
In referring to the trade of his store on the first two Sundays prior to Christmas of 2000, Mr Sullivan stated that it was “dismal” for the first two Sundays when compared to normal Saturday trading, although it did pick up on the last Sunday prior to Christmas.
Kim Chounding Mr Chounding is a Director of Kimtastic. Mr Chounding has had extensive experience within the retail industry in New South Wales and Queensland and was active in lobbying for extended trading hours in New South Wales. Against that background, his evidence was that:–
“The experience of knowing what effect it has on major stores when you gain Sunday Trading is that incremental sales are gained increasing the weekly take for stores. Sales decrease midweek as a portion of these purchases are moved to Sunday. This allowed stores to decrease staff during the week to pay for staff on Sundays.
The cost of staff during the week mainly consisting of seniors were replaced with juniors as they are readily available on the weekends. This allows large stores to add an extra days trade at little or no extra cost dramatically reducing the wages percentages.
Is this good for the government? Consider this, in most cases junior staff will pay no tax or superannuation and they will be the main stream of employment for Sunday trade.”.
Mr Chounding also stated that:–
“In 1994 we were granted late night shopping in Queensland. At this time I was the State Manager for K-Mart Queensland. We also had gained extended trading hours in Victoria, and at a meeting in Melbourne we discussed that we would have to reduce the cost of wages if we were to be able to cover all the hours that were granted. We decided we could start with non-profit stores, but this did not happen. It was decided that with the approval of the Unions, we would reduce stores permanent staff and offer these staff part-time or casual work. Many stores in Queensland reduced full-time positions from 60 to 8 and offered the redundant full-time staff, part-time or casual work. The aim was to reduce costs to employ junior staff for night trading.”.
Jeff Antcliff Mr Antcliff is the Deputy Chairman of the Caboolture Central Business District Retailers and Traders. That organisation has requested that Mr Antcliff put their position to the Commission with regard to this application. In so doing Mr Antcliffe stated that:–
“The Caboolture Central Business District Retailers and Traders led the nation with an employment project that created 52 new jobs in 44 weeks as reported by Brisbane Extra Ch 9, and Radio National. We also support and endorse the Caboolture Shire Council in their quest for 1000 jobs in 1000 days. To risk any net job losses due to economic rationalism and deregulation theory is not acceptable to our members, or we would argue, the community at large.
Major retailers have developed an on-call casual workforce that is subsidized by Australian Tax payers. Due to the excess of under-utilised labour many employees are forced into the welfare cycle for top up payments to meet the basic standard of living.”.
Mr Antciff claimed that many of the major retailers were destroying regional and rural Australia. This was achieved by decimating small businesses causing “social and economic trauma to whole townships”. It was also stated that many large retailers were not currently using the extended trading hours available to them.
Mr Antcliff also expressed concern that without viable competition between traders (both exempt and non-exempt stores), price increases would occur within the non-exempt retail sector. Profits from those non-exempt stores were not reinvested within the local communities. Mr Antcliff claimed that small business owners buy locally and any factor causing their trade to decline would have an adverse effect upon local economies.
Mr Antcliff (previously an executive of a large non-exempt trader) viewed with skepticism the claim that employees would have the option of whether they worked on Sundays. Mr Antcliff was of the view that, in practice, employees would be afforded the opportunity of working or not working but that eventually that option would not be available to employees.
Guy Elliott Mr Elliott is the General Manager of Australian United Retailers (AUR). AUR provides “services to members such as marketing, raising income through advertising and advisory services covering all aspects of store operations – commonly described as a ‘Banner Group’. This advice includes help with fresh food, financial performance reviews, business development, training and retai[l] store design – issues that small business do not necessarily have access to as independents…AUR currently has 460 independent small business members, 163 of whom are within the area covered by this application.”.
Mr Elliott reiterated views expressed by other respondent witnesses as to the impact that Sunday trade would have on small traders. In summary, he states that:–
“Responses alleging sales to be severely affected were based on the main fact that extended trading hours does not mean that consumers are going to buy more groceries and eat more food. It simply means that more stores will be competing for current levels of Sunday trade. Consumers will 62 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 11 January, 2002
choose larger stores such as Coles or Woolworths, or smaller stores such as AUR members. For every smaller store that is not chosen, that percentage of their current Sunday trade is lost. There is no real potential for smaller stores to gain additional customers, just lose their current customers.”.
Victor Smikoff Mr Smikoff is the owner of Lara’s House – a small business operated at the Capalaba Park Shopping Centre. Mr Smikoff is a financial member of the RAQ. Mr Smikoff said that he was disappointed that the RAQ had not sought his opinion on the current application. According to Mr Smikoff “[f]or an issue with such enormous implications to the small business owner, I would have thought that RAQ would have given individual members the opportunity to vote on this issue. RAQ did not even visit our shopping centre to discuss the issue.”.
Mr Smikoff further states that:–
“When I spoke with the RAQ regarding the issue of voting and whether there had been a vote from individual members, I was informed that there had been a vote and that the majority had voted for the introduction of Sunday Trade. When I enquired as to who represented the members for the vote, I was informed that a representative committee of executive members had taken the vote. In my opinion this does not represent the small business component of the membership.”.
In particular Mr Smikoff had concerns that “a decision to allow Sunday trade for non-exempt stores would result in a re-drafted lease to force me to trade all ‘core-trade-hours’. The non-exempt tenants of the Capalaba Park Shopping Centre would carry the vote and small business would have to follow.”.
Allan Burge Mr Burge is the owner/operator of SPAR Supermarket, Loganholme. Mr Burge has operated this establishment for the past 21 years, trading under various names and under Spar since 1995. Mr Burge gave evidence upon a number of issues including:–
• the current availability of Sunday grocery shopping in Loganholme; • the likely detrimental effect on his business; • the limitations faced by independents; and • the support of the local community.
Mr Burge stated that his store opens seven days per week and twenty four hours per day. This store is particularly large and well stocked and Mr Burge believed that his store could cater well for consumers in the area. Mr Burge viewed his store as one of the few independent stores which could currently compete against Coles and Woolworths in Loganholme. $1.5 million had recently been expended both extending and refitting the store. Mr Burge viewed the success of his store as being also due to the fact that he can trade on Sunday when the Logan Hyperdome does not.
According to Mr Burge, Spar Loganholme expends considerable effort in supporting community projects such as sporting teams.
Conclusion
We propose to grant the application in part. We have determined to limit the geographical area claimed and confine the outcome to what has been termed the City of Brisbane as defined by the Local Government (Local Government Areas) Regulation 1995 as amended by the Local Government Legislation Amendment Regulation (No. 2) 2000 (City of Brisbane). The Order which will issue with regard to this decision will be operative as from 1st July 2002. We have decided upon this operative date for a number of reasons. We are conscious of the fact that many businesses may have to adjust their business practices and personnel requirements. The time frame also permits appropriate advertising of the changes for the benefit of the public generally. We are also mindful of the agreement reached between the RAQ and the SDA whereby the RAQ is now seeking an operative date of 1 July, 2002.
Any application to amend current trading hours in any region or part of Queensland has the potential to impact significantly upon a large sector of the business community and on the community generally. If applications are successful, an immediate realignment of business practices in the affected regions occur. It is common knowledge that there are those businesses (and individuals) who will be affected to varying degrees by any changes to trading hours.
This application is made pursuant to s.21 of the Trading (Allowable Hours) Act 1990 (Act). Matters relevant to a determination under s. 21 of the Act are found in s.26 of the Act which provides as follows:–
“26. In relation to making an order under section 21 of 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) such other matters as the Industrial Commission considers relevant.”.
We would reiterate, in this decision, that the Act has been enacted primarily to regulate trading hours within the State. It is not legislation aimed at systematic or gradual deregulation of Queensland’s trading hours, nor, however, is it legislation aimed at restricting the liberalisation of trading hours where warranted. At various times, the Parliament of Queensland has sought to amend the Act or introduce new legislation affecting trading hours. The Commission determines the outcome of trading hours’ applications in accordance with that legislation. Section 26 of the Act lists the criteria which must be considered by the Commission when making such a determination. Whilst each of the criteria listed in s.26 of the Act have been duly considered, the nature of the application means that some criteria are more positively satisfied than others.
Considerable reference has been made by the parties to the decision of the Full Bench in Property Council of Australia Limited (Queensland Division) and Others AND Queensland Retail Traders and Shopkeepers Association (Industrial Organisation of Employers) and Others 159 QGIG 310 (Matter No. B1249 of 1997). In that case, a Full Bench of the Commission rejected the application for Sunday trading and, amongst other things, stated:–
“There is one final matter we should deal with before we turn to the evidence. Some comment was made that the application specifies the parameters within which we may grant all non-exempt shops permission to trade on Sunday. The fact is that the applicants have run an all-or- nothing case. They made no attempt to marshal up an alternative case within the ambit of the application, eg. non-exempt stores in regional centers. In consequence, the respondents have not known what case they are to reply to other than the case made for the whole area covered by the application. In those circumstances we have considered only the case that was argued. We note that some witnesses were inclined to plead special 11 January, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 63
cases for their area of interest, eg. Toowoomba CBD and West End. If any industrial organization or “other organization” within the meaning of the Trading (Allowable Hours) Act 1990 is prepared to sponsor such an application, it can be determined in other proceedings.”.
With those comments in mind, this Full Bench enquired of the applicant whether they proposed to adopt an “all-or-nothing” approach to their application. The specific enquiry put to the parties was as follows:-
“Whilst the members of this Full Bench and other Full Benchs involved in the determination of applications under the Trading (Allowable Hours) Act 1990 have on occasion rejected parts of trading hours applications whilst granting other parts of such applications, we are mindful of the Full Bench’s decision in B1249 of 1997 colloquially known as the South East Corridor case. In particular we are mindful of the following comments made by that Full Bench:–
‘There is one final matter we should deal with before we turn to the evidence. Some comment was made that the application specifies the parameters within which we may grant all non-exempt shops permission to trade on Sunday. The fact is that the applicants have run an all or nothing case. They made no attempt to marshal up an alternative case within the ambit of the application, eg. non-exempt stores in regional centres. In consequence, the respondents have not known what case they are to reply to other than the case made for the whole of the area covered by the application. In those circumstances we have considered only the case that was argued. We note that some witnesses were inclined to plead special cases for their area of interest, eg. Toowoomba CBD and West End. If an industrial organization or other organisation within the meaning of the Trading (Allowable Hours) Act 1990 is prepared to sponsor such an application it can be determined in other proceedings.’.
It needs to be made clear that we have not made any determination as to the outcome of the matter that is before us – far from it. However, in the event that the application as filed is rejected by this Full Bench, we are interested to know whether it may have been the case that RAQ would have proffered an alternative position i.e a ‘fall-back’ position of a more restricted area than the application designates. Of course, it may be the case that RAQ has pursued an ‘all-or-nothing’ case. If an alternative or ‘fall-back’ position is contended for by the RAQ, we understand that those opposing the claim may argue that they may be disadvantaged or that they may have conducted their case somewhat differently. Depending upon the response of the RAQ to this enquiry, we would be prepared to hear submissions from all parties as to the appropriate course to be adopted by the Full Bench.”.
The RAQ responded on the following day that they did not wish to alter their claim. They stated that the definition of the Brisbane and Near Metropolitan Area had existed since 1988 and was an accepted geographical trading hours boundary. The RAQ did however submit that they did not see their claim as an “all or nothing claim”. The RAQ further submitted that the Commission had the power to grant whatever relief it saw as appropriate. In so doing the RAQ referred the Bench to various trading hours decisions which ultimately varied the relief sought in the application.
The QRTSA responded to the RAQ’s submissions in this regard by contending that they had viewed the RAQ application as an ‘all or nothing’ claim and that they had adduced evidence during the course of the proceeding in defending an “all or nothing” claim. The QRTSA also submitted that the area in question in the application, the Brisbane and Near Metropolitan Area, was not an area entrenched within the Order.
The Full Bench stated that it would hear further commentary on the point from the parties during their final submissions.
In its final submissions the RAQ reiterated earlier submissions and highlighted the point that the locality entitled Brisbane and Near Metropolitan Area is a defined area within the Order, gazetted on 2 July 1988. The RAQ contended that the area “is compact and reflects the concentration for the greater Brisbane population.”
In Property Council of Australia Limited (Queensland Division) and Others AND Queensland Retail Traders and Shopkeepers Association (Industrial Organisation of Employers) and Others (Matter No. B1249 of 1997) those parties opposing the application submitted that the South East Corridor was not an identifiable area. In dealing with that issue, the Full Bench stated:–
“But it would, in our view, be equally wrong, in principle, to grant an application for an area or areas where the component parts of the area or areas had nothing in common and the arguments advanced would be applicable to the whole of the state of Queensland.”.
We acknowledge that the area the subject of the claim has previously been relied upon by the Commission when granting other trading hours matters. We are not constrained, however, in the making of this decision to follow such previous determinations. Each case turns upon its own facts. The NMAA does not view the area in question as homogenous and submits that “the inspections revealed a diverse range of social and community settings with no apparent commonality of needs”. The NMAA states that the areas are so diverse as to include basically rural areas around Caboolture, beachside areas adjacent to Deception and Moreton Bays including Redcliffe and Caboolture, inner city areas, and near suburban and industrial areas situated to the west of Ipswich.
We are inclined to agree with the submissions made by the QRTSA and the NMAA with regard to the breadth and diversity of the area in question. There is a marked diversity within the whole area that could arguably apply to any area within the State. We are mindful of submissions made by those parties opposing the RAQ application that to grant the application with the area so defined would have the potential to see similar applications lodged throughout the State on similar grounds. This case stands alone and we have determined the outcome based upon the specific facts peculiar to this application and the area in question. We accept previous Full Bench commentary that claims that there needs to be some degree of commonality within a defined area sufficient to justify a common trading hours result. This application is sufficiently different from previous applications around the defined area. To some degree, this application suffers from the same impediments evident within the South East Corridor matter. In toto, it does not satisfy the requirements of the Act sufficiently to warrant its granting in full. The reasons for this will be expanded upon during this analysis.
The submissions made on behalf of Jezreel Pty Ltd have been referred to previously and we have acknowledged the merit of the submissions as they go to describing the area in the claim as being ‘quite disparate’. Jezreel’s submissions, however, are much broader than that. The submission made that the Coles New Farm store should not be used as a ‘yardstick’ for assessing the merits of Sunday trading need consideration. The Coles New Farm store is permitted to trade on a Sunday and evidence shows that there has been an increase since the introduction of Sunday trading. As well, there is evidence, which we accept, that there is considerable congestion around that store on a Sunday. It is submitted by Jezreel that this store should be viewed in isolation for reasons outlined by Mr Sorbello in his evidence referred to earlier in this decision. To some degree, we accept the thrust of that evidence i.e. that the store has been a perennially good performer. However, it is difficult to view the success of the store without concluding that Sunday trade has further enhanced its performance. We are mindful of the submission made in the earlier case when Sunday trade was granted to this store. Those submissions convinced the Commission to grant the application at that time and we would find it somewhat odd were the thrust of those submissions now to be downgraded to suit an argument that other like stores should not be permitted to trade on a Sunday.
Jezreel’s submissions as to the effect that a successful application would have upon the Inner City of Brisbane have also been considered. Those submissions are also meritorious in that this discrete area has flourished from being able to trade on a Sunday. The ability to trade on a Sunday in the 64 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 11 January, 2002
City Heart of Brisbane is seen as an attraction to tourists visiting the Brisbane metropolitan area. Whether the discrete nature of this area will be retained with the granting of Sunday trade in the metropolitan area is only open to speculation. However, there has been no significant opposition to the claim from any City Heart trader.
It is a factor of some significance to the Full Bench that there is no opposition to the claim by the major registered organisations of employees (the SDA and the AWU) with members within the retail sector. Work for employees on a Sunday has, in previous cases, been a matter of concern to these organisations. However, with the preponderance of enterprise agreements within the retail sector between these registered organisations and retailers, it appears that major issues of concern can be addressed through that process to the satisfaction of all parties. QRTSA, however, states that the views of the two major registered organisations of employees should be viewed within context. QRTSA claims that union membership within the retail sector is not large and were an application for a “Voluntary Work Award” to be lodged with the Commission, QRTSA would not agree to the making of such an Award. QRTSA states that at no time has the SDA made any attempt to debate this issue with them.
The applicant has put to the Full Bench considerable statistical data and the results of various surveys conducted on a qualitative and quantitative basis. QRTSA has submitted that the “bulk of the applicant’s arguments centred on the idea of Consumer Interest”. We have made comment in earlier decisions upon our general view regarding these surveys. We accept that, as a general proposition, consumers would like to be able to shop on a Sunday. To varying degrees, all research points to this conclusion. Survey results are generally reflective of the type of question posed by the researcher. Quite frankly, were the questions asked to be varied somewhat, a range of responses might result. To this degree, we concur with general propositions posed by QRTSA in their final submissions. From the research put before us in this case, however, we have formed the view that the outcomes assist the applicant’s case. We have not however made our decision unduly influenced by “consumer interest” submissions. Rather, we have taken that factor, together with all other legislative factors, into consideration when making this decision.
The submissions of those parties opposing the application all concentrated upon similar areas of opposition. Certainly, the disparate nature of the area as a whole has been a key feature of such opposition. We agree with those submissions, to a point. We agree to the extent that those areas outside of what is the City of Brisbane should not be included in the eventual area to be granted Sunday trading. Within this context, the submissions primarily from QRTSA and other opponents to the claim on this point are compelling.
In considering s.26(a) of the Trading(Allowable Hours) Act 1990, and in deciding to grant the claim in part, we would rely upon the reasoning of the Full Bench in the South East Corridor case to the extent that those areas outside of the City of Brisbane do not exhibit sufficient comparability with the area approved by this Full Bench to warrant inclusion in the outcome. Because we have sought to keep the area within what is the City of Brisbane, some regions may feel that they have been unduly dealt with. However, a sensible and understandable line must be drawn. In our view, the most common sense approach (and one which fits more appropriately within the legislation) is to draw the line in the manner in which we have. We are conscious of the fact that this delineation of boundaries may cause practical difficulties in some areas. Where practical difficulties arise, the parties are at liberty to approach the Commission, under a separate application, to have those concerns identified and considered. It is reiterated that the Full Bench gave every opportunity to the applicant to provide further submissions on any possible “fall-back” position it might have other than its original claim. The applicant provided no further information in this regard, hence the difficulty we now face with regard to any possible “practical difficulties” which might arise as a consequence of this decision.
The needs of the tourism industry have not been a major factor in either the applicant’s case or the cases of those parties opposing the application. The exception has been as it relates to the City Heart region and this has been referred to previously. We concur with the submissions primarily from QRTSA on this point.
There is little question that the area in question is a densely populated area. The increases in population are steady and not dramatic, however, it is a matter of fact that must be considered in a decision of this type. In considering this point, however, we are mindful of the fact that many non-exempt stores, particularly the non-food stores, do not utilize all available trading hours which indicates that consumer demand, especially during the Monday to Friday evening periods, is not extreme. We note, however, that in the non-exempt stores that sell foodstuffs (e.g. Woolworths and Coles), full utilization of trading hours occurs. Brisbane, being the capital city of Queensland, has its own demographics peculiar to a city of that size. There is a larger and ever increasing population to be catered for in terms of appropriate trading hours and we see this factor as being of importance in the making of this decision. While QRTSA contend that Brisbane has experienced only “normal growth” over recent years, this in itself, in a city the size of Brisbane, remains significant.
There has been considerable evidence led in this case in relation to s.26(e) of the Trading (Allowable Hours) Act 1990 in terms of “public interest, consumers’ interest, and business interest (whether small, medium or large)”. Within this context, the QRTSA has submitted that “the shift in market share will not have any major increases in employment within the area, simply creating a subsequent shift in employment from small business to large business.” This may well be the case – certainly, we had put to us figures for anticipated employment growth in major stores were the application to succeed. We are unable to ascertain whether, on prior occasions, we have had any hard statistics put to us with regard to real employment growth in non- exempt stores when trading hours have been enlarged. We have not relied upon the projected employment growth in the non-exempt stores in making this decision. However, should appropriate statistical material around this point be led in evidence before a future Full Bench of this Commission it may well be material worthy of greater consideration.
Subsequent to all evidence being adduced during this case, the Full Bench received many letters of concern at the prospect of extended trading hours from a range of persons. These have been received, in effect, after the event but we state that we have a general appreciation of the intent of the letters as many of the sentiments contained in that correspondence have been expressed throughout the course of this hearing by witnesses for the respondents. Generally, those views have been considered in this decision.
We have previously stated our attitude towards the range of consumer surveys that have been tendered in evidence during this hearing. We are content, for reasons previously cited, with the general proposition that consumers’ interests would be met with the granting in part of this application. Public interest requirements demand greater consideration. An area that has previously been of concern to the Commission has related to employees who might be directly affected by an increase in trading hours. For those employees whose terms and conditions are covered through the enterprise bargaining process, their interests appear to have been adequately protected. We acknowledge the understanding reached between the RAQ on behalf of its members and the major organisations of employees whose members are employed within the retail industry. That arrangement is that existing employees will not be required to make themselves available to work on Sundays.
In considering the interests of “small, medium and large” business, we believe we have addressed this requirement satisfactorily in our decision. Small business representatives have given extensive evidence before the Full Bench with regard to their knowledge and experience around the question of extended trade for the non-exempt stores and particularly for extended trade on a Sunday. Most have had the opportunity of comparing their sales on a Sunday (which, by far, is their most productive trading day) when non-exempt stores have been permitted to trade with those times when trade has been prohibited. For most, this experience has occurred around the trading hours allowed for non-exempt stores immediately prior to Christmas, in those areas designated as tourist areas, and with stores such as Coles, New Farm which has been granted Sunday trade. In relation to the pre-Christmas trade comparison, we would view this period as discrete with regard to trading patterns. These views were expressed in that decision. This period is often 11 January, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 65
hectic and not typical of trade on a non pre-Christmas trading Sunday. We have concurred with submissions made primarily by QRTSA and other opponents to the claim on this point. Whatever statistics were produced for this period have been viewed by the Full Bench within that context.
The Coles New Farm Sunday trading experience is still relatively novel, however, it appears from any analyses of the situation that there is certainly an evident consumer demand to utilize this store on a Sunday. Other traders in the general vicinity have noticed a decline in their trade on a Sunday as a consequence of the opening of this store. This is a factor which we must take into consideration and one which must be weighed along with all other legislative considerations in making this decision.
QRTSA has stated that the Full Bench should not be influenced by the alleged “plight” of traders who complain about restrictions which are evident when they trade in shopping centres. QRTSA claims that these businesses are well aware of prevailing trading hours when they enter into these arrangements. We acknowledge that there is considerable merit in this submission and this point is recognized in the views expressed by this Full Bench in Retailers Association of Queensland Limited, Union of Employers AND Queensland Retail Traders and Shopkeepers Association (Industrial Organisation of Employers) 165 QGIG 174 (Matter No. 579 of 2000).
Trade in designated tourist areas, however, has occurred over a longer period of time. We have been able to consider evidence in these areas most recently in the matter of B579 of 2000 (the “tourist trading hours case”). The Bench, as currently constituted, heard and determined that matter and would simply adopt again the reasoning cited in that decision for granting the extension to those hours. The opposition to that application is in a similar vein to that proffered in this case with regard to those areas.
There is evidence before us upon the question of ‘traffic congestion’. We accept the general thrust of that evidence that there is considerable traffic congestion around many non-exempt stores and shopping centres during the course of Monday to Saturday trade. In a city the size of Brisbane that fact is self-evident.
In making this decision, we must state that we have found the submissions and evidence of those opposed to the claim to be strong and compelling. As a consequence of the merit associated with this opposition, we have granted the application in part only.
The Full Bench is required to consider this application according to the relevant legislation. We have addressed the major criteria contained within the Act and have considered all of the evidence. We have weighed all relevant matters and have determined to grant in part the application as previously described. In so doing, we have considered the discrete nature of the Brisbane market – i.e. a densely populated, highly urbanized metropolitan area with needs discernibly different from those evident in the surrounding areas (which have been excluded) and we might add, to those evident, at this point in time, in other regions of the State.
In granting non-exempt shops the ability to trade on Sundays in the City of Brisbane we have had particular regard to two aspects of the evidence before us.
The first is the assurance given by the Shopping Centre Council of Australia that traders/retailers within shopping centres will have the option to trade or not to trade on Sundays should this application be granted and that no pressure will be brought to bear upon shop traders/retailers to open on Sundays. We are most concerned to ensure that traders/retailers, whether they be large, medium or small, are not pressured into opening their store on Sundays as a result of this decision. We are strongly of the view that the core trading hours in any shopping centre with the City of Brisbane (excluding those shopping centres to whom clause 3.2(1)(a)(ii) and (iii) of the Trading Hours – Non-Exempt Shops Trading by Retail – State Order applies) should not, either now or until further order of this Commission, include Sunday hours.
In this regard we require the owners of shopping centres and/or the operators of such centres to advise in writing the tenants of their centres the stated position of this Bench on the necessity for such tenants to have the option of whether to trade or not on Sundays.
Should there be evidence in the future of any pressure being placed on an existing or potential tenant to trade on a Sunday then we would entertain an application to revisit this decision in so far as that shopping centre was concerned. The evidence before us from small retailers located in shopping centres was to the effect that they believed they would be pressured into trading on Sundays against their will. We understand the concerns of such retailers and we are determined that no such pressure is placed on traders/retailers.
The second fact which we have had regard to is the arrangement reached between the RAQ, on the one hand, and the SDA and AWU, on the other, to the effect that members of the RAQ would not require any existing employee to work on Sundays, i.e. the offer of work on Sundays can be freely rejected by existing employees. Whilst we have no evidence of any breach of such undertakings given in the past we are keen to ensure that this assurance is also complied with.
We believe that there should be an appropriate lead-in period to the implementation of this decision. As such, we determine that Sunday trading within the determined area commence as from 1 July 2002. The applicant is required to draft the appropriate Order for consideration by this Full Bench. We require the RAQ to file and serve on those organisations granted leave to appear in this matter a Draft Order by 4.00p.m. on Thursday 31 January, 2002. We require those parties given leave to appear in this matter to respond to the RAQ by 4.00p.m. on Thursday 21 February, 2002 if they have any objection to the Draft Order.
In the event that problems arise in terms of the drafting of an appropriate Order, the parties are requested to advise the Registrar and that matter will be addressed in the appropriate manner.
Order Accordingly.
D. M. LINNANE, Vice President. Mr R. Wotherspoon and Mr R. McLeod, for the National Meat Association of Australia (Queensland Division) Industrial Organisation K.L. EDWARDS, Commissioner. of Employers. Mr C. Ketter and Mr L. Gillespie, with them Mr D. Gaffy and Ms P. D.A. SWAN, Commissioner. Town for the Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees. Appearances:– Mr S. Nance for Queensland Chamber of Commerce and Industry Ms P. Spencer and Mr G. Black, with them Ms S Lindsay for the Limited, Industrial Organisation of Employers Retailers’ Association of Queensland Limited, Union of Employers. Mr J. Murdoch SC and with him Miss C. J. Arnold, instructed by Nicol Mr M. Piccini on behalf of the Minister for Industrial Relations. Robinson Halletts, with them Mr A. Sorbello and Mr S. Sorbello on Mr R. Swain and Mr D. Matley for the Queensland Retail Traders and behalf of Jezreel Pty Ltd. Shopkeepers Association (Industrial Organisation of Employers). Ms T. Lane for the Australian Workers’ Union of Employees, Released: 21 December 2001 Queensland.