Part 4 Restriction of hours of trade or work in certain industries
(1) In this Part, unless the context or subject matter otherwise indicates or requires:Area means area to which the provisions of any State award or any award for the time being in force under any Commonwealth Act relating to industrial arbitration fixing the time for the commencement, or cessation, or the times for the commencement and cessation, of the ordinary hours of work by employees in shops therein apply.
Close means close to the admission of the public, and words derived therefrom have a corresponding meaning.
Employ means employ in any way or in any kind of work.
Furniture factory means a factory wherein any person is engaged in preparing, manufacturing, or assembling articles of furniture.
Inspector means an inspector appointed under the Industrial Relations Act 1996.
Make or bake in relation to pastry does not include any operations connected with the preparation of dough for pies, or with the preparation or cooking of meat required for pie-making, or with the firing of ovens.
Medicinal or surgical goods means drugs or medicines (including patent or proprietary drugs or medicines), surgical appliances, dressings and antiseptics.
Pastry includes cakes, biscuits, muffins and crumpets and any goods usually made by pastrycooks.
State award means an award within the meaning of the Industrial Relations Act 1996.
Warehouse means place or building in which goods are sold or offered or exposed for sale by wholesale, and includes any portion of a building which is separated from the rest of the building by a substantial partition, and in which goods are sold or offered or exposed as aforesaid, and includes, where the context requires it, kind or class of warehouse.
Week day means any day of the week except Sunday.
(2) For the purposes of this Act, a shop or warehouse shall be deemed to be open if:(a) it is not closed to the admission of the public, or(b) any goods are sold or offered for sale therein, or(c) any person is in attendance at the shop or warehouse for the receipt, by any means, of(i) orders for goods, or(ii) requests for the demonstration of goods, or the delivery of goods on approval.
75–77 (Repealed)
Division 3 Opening and closing hours of shops and warehouses
78 Definitions and application
(1) In this Division and in Schedule 3, unless the context or subject matter otherwise indicates or requires:General shop means any shop (other than a scheduled shop) that is classified by the regulations as a general shop for the purposes of this definition.
Hairdresser’s shop means shop in which the business of a hairdresser is carried on.
Lease includes sublease, tenancy, subtenancy or licence to use or occupy, whether in writing or not.
Occupier means person, partnership, association, or corporation occupying a warehouse, directly or indirectly, as principal, and includes a person who continues to be the occupier of a warehouse under the provisions of section 91.
Public holiday means any day on which the following holidays are publicly observed:
(a) New Year’s Day,(b) Australia Day,(c) Good Friday,(d) Easter Sunday,(e) Anzac Day,(f) Christmas Day, and(g) Boxing Day.Scheduled shop means shop of any of the classes specified in Schedule 3.
Shop means place, building, stall, tent, vehicle, boat, or pack in which goods are sold or offered or exposed for sale by retail, or from which goods are sold by retail, or in which the business of a hairdresser, pawnbroker or farrier is carried on, and includes any portion of a building which is separated from the rest of the building by a permanent and substantial partition or wall, and in which goods are sold or offered or exposed as aforesaid, or in which any such business as aforesaid is carried on, and includes where the context requires it, kind or class of shop.
Shopkeeper means person, partnership, association, or corporation occupying a shop, directly or indirectly as principal, and includes hawkers and pedlars, and also includes a person who continues to be a shopkeeper of a shop under the provisions of section 91, but does not include a commercial traveller bona fide engaged in selling goods to a shopkeeper by sample only.
Small shop means a shop which complies with section 78B.
(2)–(4) (Repealed)(5) The Governor may, by order published in the Gazette, amend Schedule 3 by omitting therefrom a class of shops or by adding thereto a class of shops.
78A Exemption from provisions of this Division
(1) The shopkeeper of a shop may make application to the Director-General for exemption from all or any of the provisions of this Division, and of the regulations made for the purposes of this Division, in relation to the shop.(2) An application under subsection (1) shall be made in such manner as may be prescribed and shall be accompanied by the prescribed fee.(3) The Director-General may grant or refuse an exemption applied for under this section.(4) Where the Director-General grants an exemption under this section, the exemption may be granted:(a) subject to conditions or unconditionally,(b) to take effect from the date of the grant or from a later date, and(c) for a specified period or indefinitely.(5) An exemption granted, and not withdrawn, under this section shall have effect according to its tenor.(6) Where the Director-General grants an exemption under this section in relation to a shop, the Director-General shall issue to the shopkeeper of the shop a certificate of the exemption which shall specify the conditions (if any) subject to which the exemption is granted, the date on which the exemption takes effect and the period (if any) for which the exemption is granted.(7) Where the Director-General is of the opinion that the conditions subject to which an exemption is granted under this section in relation to a shop have been breached, the Director-General may, by notice in writing to the shopkeeper of the shop, withdraw the exemption.(8) A notice under subsection (7) may be served on a shopkeeper of a shop personally or by posting it to the shopkeeper at the address of the shop.(9)–(12) (Repealed)
78AA Reviews by the Administrative Decisions Tribunal
Any shopkeeper or occupier of a shop who is aggrieved by any of the following decisions may apply to the Administrative Decisions Tribunal for a review of the decision:(a) a determination of the Director-General to refuse to grant an exemption, or(b) a determination of the Director-General as to the conditions subject to which, or the period for which, an exemption is granted, or(c) a determination of the Director-General to withdraw an exemption.
(1) A shop is a small shop for the purposes of this Act if it complies with the requirements of this section.(2) The shopkeeper or shopkeepers of a small shop is or are to be natural persons not exceeding 2 in number (whether or not carrying on the business of the shop in partnership) or 1 corporation.(3) The shopkeeper or shopkeepers of a small shop is or are to be the owner or owners of the business of the shop and entitled to the profits of that business.(4) The number of persons engaged in a small shop as employees or otherwise in the conduct of the business of the shop on any day (either at the same time or at different times) is not to exceed 4.(5) The number of persons permitted to be engaged in a small shop as referred to in subsection (4) does not include:(a) the shopkeeper or shopkeepers or, if the shopkeeper is a corporation, not more than 2 natural persons who are shareholders of the corporation, or(b) any person so engaged in an emergency during the absence from the shop for part of a day of a person who is so engaged in the shop on that day, or(c) any person so engaged outside the normal working hours of any person so engaged on a full-time basis.(6) Subsection (4) does not apply to a shop during a period of exemption specified in an order for the time being in force under section 89B in respect of an area or locality within which the shop is situated.(7) A shopkeeper of a small shop is not to be a person acting as the employee of or acting directly or indirectly as the agent of another person in the conduct of the business of the shop.(8) A shop is not a small shop if a direct or indirect interest in the business of the shop is held by:(a) a corporation that is engaged in a business other than the business of the shop, or(b) a director of a corporation that is engaged in a business other than the business of the shop, or(c) any other person who is engaged, as an employee or otherwise, in a business other than the business of the shop, or(d) any corporation (whether or not engaged in a business) that for the purposes of section 50 of the Corporations Act 2001 of the Commonwealth is to be taken to be related to a corporation referred to in paragraph (a) or (b).(9) A reference in any other Act, award or instrument to a small shop as defined in section 76A of this Act is to be read as a reference to a small shop within the meaning of this section.(10) In this section:business means:
(a) the business of the sale of goods by retail, or(b) the business of a hairdresser.shareholder, in relation to a corporation, means a person having a relevant interest in a share in that corporation for the purposes of Part 6C.1 of the Corporations Act 2001 of the Commonwealth.
79A Premium rates of pay for Saturday afternoons
(1) The regulations may amend any award made under the Industrial Relations Act 1996 (whether or not published) which fixes the rates of pay of employees in shops by the substitution of the rate of time and a half for any other rate of pay specified in the award for ordinary hours worked by any such employees on a Saturday after 12 noon.(2) The regulations made under subsection (1) may also provide for the amendment of any award referred to in that subsection so as to apply the rate of time and a half to hours worked by casual employees in shops on Saturdays after 12 noon and for the omission of provision in the award for any loading in relation to those hours.
82 Closing time of mixed shops
(1)(a) Where the trade carried on in a shop, not being a small shop, includes trade usually carried on in two or more classes of shops the shop shall be kept closed at all times when shops of any of such classes are required by this Act to be kept closed: Provided that it shall be lawful for the shop to be kept open at any such time if all goods therein, which are usually the subject of trade in a class or classes of shops required by this Act to be kept closed at that time, are partitioned off in the prescribed manner.(b) In any information alleging that a shop to which paragraph (a) applies was open at a time when it was required by this Act to be kept closed, it shall be a sufficient description of the offence charged to allege that the shop was of a specified class, being one of the classes included in the trade carried on in the shop, and was open at the time of the alleged offence, being a time when shops of such specified class are required by this Act to be kept closed.(2)(a) Where a shopkeeper of a shop to which the provisions of subsection (1) apply has within a period of three years been convicted three times for offences under section 86, the Industrial Relations Commission in Court Session may order that in respect of the shop while occupied by such shopkeeper and of any other shop to which the business of such shopkeeper may be transferred the provisions of the said subsection shall for such period as the Commission may determine operate as though the proviso to paragraph (a) of the said subsection were omitted, and the said subsection shall for the period so determined operate in accordance with the order of the Commission.(b) An application for an order under paragraph (a) shall be made by the Minister or by an inspector authorised in that behalf by the Minister.Any such application shall be made as prescribed by regulations made under the Industrial Relations Act 1996.
An authority to make such application purporting to have been signed by the Minister shall be prima facie evidence of such authority without proof of the Minister’s signature.
84 Trading hours of shops on Sunday
(1) Shops (other than scheduled shops and small shops) are to be kept closed on Sundays, except for the two Sundays immediately preceding Christmas Day.(2), (3) (Repealed)(4) The provisions of any law, other than this Act and the regulations, to the extent to which it prohibits the opening of any shop or any trading or dealing in goods in any shop, have no force or effect.
(1) General shops (other than small shops) shall be kept closed on public holidays.(2) The Minister may, by order published in the Gazette, suspend the operation of subsection (1) in relation to any specified public holiday:(a) within New South Wales generally, or(b) within any specified part of New South Wales,subject to such conditions as to hours of opening, or of trading in any classes of goods, or as to other matters, as may be specified in the order.(3) An order under subsection (2) shall not be made unless the Minister is satisfied that it will be of benefit to the public for general shops to be allowed to remain open on the specified public holiday:(a) within New South Wales generally, or(b) within the specified part of New South Wales,as the case may be, but nothing in this subsection affects the validity of any such order.
(1) Where by or under this Act:(a) an opening time on any week day is fixed for or in respect of any shop, the shop shall be kept closed on that day until that opening time,(b) a closing time on any week day is fixed for or in respect of any shop or warehouse, the shop or warehouse shall be kept closed for the remainder of that day at and after that closing time.(2) Subject to sections 89A and 90, where any shop or warehouse is open at a time when it is required by or under this Act to be kept closed, the shopkeeper of the shop or occupier of the warehouse, as the case may be, and any person acting or apparently acting in the management of the shop or warehouse, as the case may be, shall be guilty of an offence against this Act:Provided that no such shopkeeper, occupier, or person shall be guilty of the said offence by reason only that within one half hour after the relevant closing time, or the first half hour of a period for which the shop or warehouse is required by or under this Act to be kept closed, as the case may require, goods have been offered for sale or sold to a customer who at the relevant closing time, or at the commencement of that period was in the shop or warehouse being served or waiting to be served.
(3) (Repealed)(4) If in any hairdresser’s shop any work is done for any customer at a time when such shop is required by or under this Act to be kept closed, the shopkeeper of the shop and any person acting or apparently acting in the management of the shop shall be guilty of an offence against this Act:Provided that no such shopkeeper or person shall be guilty of the said offence by reason only that within the fifteen minutes after the closing time for that shop any work was done for a customer who at the closing time was in the hairdresser’s shop being attended to or waiting to be attended to.
(5) A person guilty of an offence referred to in this section is liable:(a) in the case of a first or second offence—to a penalty not exceeding 10 penalty units, or(b) in the case of a third or subsequent offence—to a penalty not exceeding 100 penalty units.
87 Penalty for publishing certain statements
(1) Any person who publishes or causes to be published any statement which is intended or apparently intended to promote the business carried on in a shop or warehouse and which states, implies or suggests that at a time when that shop or warehouse is required by or under this Act to be kept closed:(a) the shop or warehouse will be open to the admission of the public for any purpose of trade or the inspection of goods, or(b) any goods will be sold or offered for sale in the shop or warehouse, or(c) any person will be in attendance at the shop or warehouse or at any other place for the receipt, by any means, ofshall be guilty of an offence against this Act.(i) orders for goods, or(ii) requests for the demonstration of goods, or the delivery of goods on approval,(1A) A person guilty of an offence referred to in this section is liable:(a) in the case of a first or second offence—to a penalty not exceeding 10 penalty units, or(b) in the case of a third or subsequent offence—to a penalty not exceeding 100 penalty units.(2) A statement shall be deemed to be published within the meaning of this Act if it is:(a) inserted in any newspaper or any other publication printed and published in New South Wales, or(b) publicly exhibited:(a) in, on, over or under any building, vehicle or place (whether or not a public place and whether on land or water), or(b) in the air in view of persons being or passing in or on any street or public place, or(c) contained in any document gratuitously sent or delivered to any person or thrown or left upon premises in the occupation of any person, or(d) broadcast by wireless transmission or by television, or(e) made verbally.
88 Division not to apply to sale of books etc at ferry bookstalls
Nothing in this Division shall apply to ferry bookstalls in respect of the sale of books, magazines, periodicals and newspapers.
88A Art and handicraft galleries
Nothing in this Division applies to any art or handicraft gallery, or art and handicraft gallery, wherein goods that are:(a) works of art or of handicraft,(b) articles or materials for use in mounting, framing or displaying the works specified in paragraph (a),(c) books, catalogues or other publications relating to art or handicraft, or(d) other prescribed goods,but no other goods, are sold or offered or exposed for sale.
89 Power of suspension in certain cases
In cases of emergency caused by disease, or fire, tempest, flood or other calamity, the Minister may by notice published in the Gazette suspend the operation of such provisions of this Division and the regulations as he or she deems necessary in respect of any persons, class of persons, shops, classes of shops, warehouses, or classes of warehouses, for such period within such locality, and under and subject to the performance of such conditions as he or she may impose, and in like manner may alter or annul such order of suspension.Any person who contravenes any condition imposed under this section shall be guilty of an offence against this Act.
89A Sale of medicinal or surgical goods
No person shall be guilty of an offence against this Act by reason only that a shop being a chemist’s shop, or that a warehouse wherein medicinal or surgical goods were sold or offered or exposed for sale, was open on any day at a time (in this subsection referred to as a non-trading time) when such shops or warehouses are required by or under this Act to be kept closed, if:(a) the only purpose of such opening was the sale of medicinal or surgical goods in accordance with the order or prescription of a medical practitioner, the prescription of a nurse practitioner or required urgently, and no goods other than medicinal or surgical goods either:(i) specified in such an order or prescription produced by a person seeking to buy those goods to a person acting in the conduct of the business of the shop or warehouse, or(ii) which a person seeking to buy those goods stated to a person so acting to be required for a specified urgent purpose,were sold in the shop or warehouse during the non-trading times on that day, and(b) the door of the shop or warehouse was kept closed and fastened at all non-trading times on that day except when:(i) a person admitted to the shop or warehouse for the purpose of the sale of medicinal or surgical goods as referred to in paragraph (a),(ii) a person referred to in paragraph (a) of subsection (1) of section 90, or(iii) a customer referred to in the proviso to subsection (2) of section 86,was entering or leaving the shop or warehouse.
89B Exemption of holiday resorts
(1) The Minister, on application being made pursuant to this section and where he or she is satisfied that all or part of an area (within the meaning of the Local Government Act 1993) outside the County of Cumberland, the City of Newcastle and the City of Wollongong:(a) is, or is within, a holiday resort, and(b) during the period or periods of the year specified in the application or any part of that period or those periods usually has a holiday population that is large by comparison with its normal resident population,may, subject to this section and for that period or those periods, or some part thereof, as he or she thinks fit, by order exempt the shops in that area or part thereof, as the case may be, from the provisions of this Division, and from specified provisions of the regulations, subject to such conditions as to hours of opening, or of trading in any classes of goods, or as to other matters, as may be specified in the order.(2) An application for an order under this section may be made to the Minister only by the council of the area or part thereof in respect of which the order is sought and shall:(a) state the reasons therefor,(b) specify the area or locality in respect of which, and the period or periods in each year for which, it is desired that the exemption shall be in force,(c) specify the times at which it is desired that shops be allowed to remain open, or to trade in any class or classes of goods, pursuant to the exemption, and(d) state whether, and if so to what extent, the application has the support or concurrence of the shopkeepers of shops situated within the area or locality.The period or periods specified pursuant to paragraph (b) shall be an unbroken period not longer than, or more than one period totalling not more than, fifteen weeks and shall be the same period or periods in each year.
(3) The Minister shall not make an order under this section until he or she has obtained, and has considered, a report by the prescribed person as to whether or not the area or locality specified in the application for the order is, or is within, a holiday resort and, if so, whether during the period or periods so specified that area or locality usually has a holiday population that is large by comparison with its normal resident population.In this subsection the prescribed person means the person for the time being holding, or acting in, the office of Director of Tourism or, where the holder of some other office is prescribed for the purposes of this subsection, the person for the time being holding or acting in that office.
(4) An order under this section:(a) shall be published in the Gazette,(b) shall, until revoked and subject to any variation thereof that may from time to time be made, remain in force from year to year in respect of the period of exemption specified therein,and any revocation or variation thereof shall also be so published.(5) No person shall be guilty of an offence against this Act by reason only that a shop within an area or locality in respect of which an order under this section was for the time being in force was open at a time within the period of exemption specified in that order and in accordance with the conditions, if any, so specified.
89C Hairdresser’s shops at transport terminals
(1) The Minister, on application being made to him or her by the shopkeeper of a hairdresser’s shop, and where he or she is satisfied that the shop:(a) is situated at or near a railway station, shipping wharf, air transport terminal, or other place to or from which persons are customarily conveyed by rail, ship, aircraft or other means of transport,(b) is bona fide conducted for the sole or major purpose of performing hairdressing services for persons requiring those services on the completion of or in preparation for journeys of long duration, and(c) is so fitted out and equipped as to provide a suitable standard of comfort and amenity,may by order exempt that shop from the provisions of this Division, and from specified provisions of the regulations, subject to such conditions, if any, as are specified in the order and either without limitation of time or for a period so specified.Editorial note. For orders under this subsection see Gazette No 9 of 29.1.1971, p 239.(2) No person shall be guilty of an offence against this Act by reason only that a shop was open at a time when an order under this section in respect of that shop was in force and in accordance with the conditions, if any, specified in that order.
89D Sale of sporting requisites
Where, but for this section, a person would be guilty of an offence by reason only that a shop was open at a particular time, he or she is not guilty of the offence if:(a) at that time:(i) persons were taking part in a lawful game or sport, or(ii) there were reasonable grounds for believing that persons were about to take part in a lawful game or sport,upon the premises or land where the shop was situated at that time, and(b) the goods sold or exposed or offered for sale in the shop at that time:(i) consisted only of requisites for taking part in that game or sport upon the premises or land, or(ii) consisted of those requisites and any other goods that could be sold or exposed or offered for sale upon the premises or land at that time without an offence being committed.
(1) No person shall be convicted for an offence against this Act for not closing or for not keeping closed a shop or warehouse if he or she proves that the shop or warehouse was not closed or not kept closed only for the purposes of:(a) persons visiting or resorting to the premises for purposes other than for purposes of or connected with trade in the shop or warehouse or the inspection of goods, or(b) customers referred to in the proviso to subsection (2) or (4) of section 86, or(c) (Repealed)(d) in the case of a retail butcher, persons entering or leaving only in connection with the delivery of meat to the shop of such butcher.(2) (Repealed)
91 Leases of shops and warehouses
Where a shopkeeper or occupier leases to any other person his or her shop or warehouse, or any part thereof, for a term or period less than one week, he or she shall, notwithstanding such lease, continue to be the shopkeeper of the shop or the occupier of the warehouse, as the case may be, for the purposes of this Act.
91A–94A (Repealed)
96 Manufacture of pastry etc at certain times prohibited
Any person exercising the trade or calling of a pastrycook, whether an employer of labour or not, or any person employed in such trade or calling, who in any area makes or bakes for trade or sale any pastry before the time that may be fixed by a State award for the time being in force in such area for the commencement of the ordinary hours of work by employees engaged in the making or baking of pastry or after the time that may be so fixed for the cessation of the ordinary hours of work by employees so engaged, shall be guilty of an offence against this Act.
The Minister may, in the case of any emergency or unforeseen circumstances, or in order to meet the exigencies of the trade carried on in a particular bakehouse, exempt any person exercising or employed in the trade or calling of a pastrycook from the operation of all or any of the provisions of section 96 for such period and subject to such conditions as the Minister may impose.Any person who contravenes any conditions imposed pursuant to this section shall be guilty of an offence against this Act.
99 (Repealed)
(1) An inspector may:(a) enter or demand entrance at any time, by day or night, into any place or premises when he or she knows or has reasonable cause to believe that any person is exercising therein the trade or calling of a pastrycook, whether as an employer of labour or not or is employed therein in such trade or calling,(b) enter or demand entrance at any time, by day or night, into any furniture factory or any place or premises which he or she has reasonable cause to believe is a furniture factory,(c) enter at any reasonable time any shop or warehouse or any place which he or she has reason to believe is used as a shop or warehouse,(d) (Repealed)(e) make such examination and inquiries as he or she thinks necessary to ascertain whether the requirements of this Part are being complied with,(f) examine with respect to matters under this Part, any person employed in or about a shop, warehouse, or furniture factory, or any person whom he or she finds in any bakehouse or whom he or she has reasonable cause to believe exercises the trade or calling of a pastrycook, or is employed in such trade or calling.(2) The occupier of any furniture factory, or any premises wherein the trade or calling of a pastrycook is being carried on, shall make such provision as may be required by the Minister, by notice in writing served on such occupier, to enable an inspector to effect an entry into such premises or to exercise his or her powers under this Part.(3) If the admission of an inspector pursuant to subsection (1) is refused or unreasonably delayed, such inspector, if accompanied by a member of the police force, may make such entry, as he or she is authorised under such subsection to make, with such assistance as may be deemed requisite.(4) Any person who:(a) refuses or wilfully delays the admission of any inspector as aforesaid, or(b) wilfully obstructs any inspector in the exercise by him or her of his or her powers under this Part, or(c) fails to comply with the request of an inspector made under any such power, or(d) conceals any person from an inspector or prevents any person from appearing before or being examined by an inspector or attempts so to conceal or prevent any person, or(e) fails to make any provision required by the Minister pursuant to subsection (2),shall be guilty of an offence against this Act and be liable to a penalty not exceeding 50 penalty units.(5) (Repealed)
101 Divisions 2 and 3 not to apply in certain cases
Nothing in Division 2 or in Division 3 shall apply to:(a) railway or tramway refreshment rooms or railway or tramway bookstalls, or(b) any premises in respect of which a hotelier’s licence is in force, by reason only of the sale or exposing or offering for sale, in or upon those premises, of liquor as defined by the Liquor Act 1982 or of meals or refreshments, or(c) any bazaar or fair where goods are sold or exposed for sale in order that the net proceeds of the sale of goods may be devoted to religious, charitable, or public purposes only, or(d) any agricultural, pastoral or horticultural society’s show approved by the Minister, or any trade exhibition or trade fair so approved.
101A Disclosure of information
Section 389 of the Industrial Relations Act 1996 is taken to apply to an inspector who obtains information relating to any manufacturing or commercial secrets or working processes in connection with the administration of this Act.
The Governor may make regulations not inconsistent with this Part:(a) prescribing the nature, method of construction, and requisites of partitions to partition off goods in a shop, and the manner in which the same shall be maintained and secured,(b) prescribing in respect of any class of shops what trade shall, for the purposes of this Part, be deemed to be that usually carried on in such class of shops, and providing that such trade, and no other, shall be deemed to be the trade usually carried on in such class of shops,(c) requiring the shopkeeper of a chemist’s shop to exhibit whenever the shop is closed, a notice containing the prescribed information as to a place where and means whereby medicinal and surgical goods may be obtained, and prescribing the place and manner in which any such notice shall be exhibited, and(d) (Repealed)(e) relating to the publication or advertising of applications for exemption under section 78A, or of information relating to any such applications.