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Contents (2008 - 49)
Retail Trading Act 2008 No 49
Current version for 25 September 2017 to date (accessed 22 November 2017 at 20:01)
Part 3
Part 3 Exemptions for shop trading
Division 1 General exemptions
7   Businesses of certain kinds exempt from trading restrictions
(1)  A shop is exempted from a requirement under this Act to be kept closed if its predominant business is a business of a kind specified in Schedule 1.
(2)  An exemption under subsection (1) is subject to the condition that, on a restricted trading day, the exempted shop is staffed only by persons who have freely elected to work on that day.
(3)  This section has effect despite any other Act or law.
(4)    (Repealed)
8   Small shops exemption
(1)  A shop is exempted from a requirement under this Act to be kept closed at a particular time if it complies with the requirements of this section.
(2)  The occupier or occupiers of the shop must be:
(a)  natural persons not exceeding 2 in number (whether or not carrying on the business of the shop in partnership) or 1 corporation, and
(b)  the owner or owners of the business of the shop and entitled to the profits of that business.
(3)  The number of persons engaged in the 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.
(4)  The number of persons permitted to be engaged in a small shop as referred to in subsection (3) does not include:
(a)  the occupier or occupiers or, if the occupier 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.
(5)  An occupier of the shop must not be 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.
(6)  A shop does not comply with the requirements of this section if a direct or indirect interest in the business of the shop is held by:
(a)  a corporation that is engaged in a business of another shop or a hairdresser, or
(b)  a director of a corporation that is engaged in a business of another shop or a hairdresser, or
(c)  any other person who is engaged, as an employee or otherwise, in a business of another shop or a hairdresser, 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).
(7)  A reference in any other Act, award or instrument to a small shop as defined in this Act is to be read as a reference to a shop that meets the requirements of this section.
(8)  In this section:
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.
8A   Shop not required to be closed on Boxing Day if staff freely elect to work
(1)  A shop is not required to be kept closed on Boxing Day if the shop is staffed only by persons who have freely elected to work on that day.
(2)  This section has effect despite any other provision of this Act and any other Act or law.
9   Certain licensed premises exempt
This Act does not apply to premises in respect of which a hotel licence or small bar licence is in force, by reason only of the sale or exposing or offering for sale, in or on those premises, of liquor as defined by the Liquor Act 2007 or of meals or refreshments.
Division 2 Exemptions by Director-General
10   Director-General may exempt shops from trading restrictions
(1)  The Director-General may by order, on application by the occupier of a shop, exempt the shop from a requirement under this Act to be kept closed.
(2)  The Director-General must not grant an exemption for a shop unless the Director-General is satisfied that it is in the exceptional circumstances of the case in the public interest to do so, having regard to the following matters:
(a)  the nature of the shop and the kinds of goods sold by the shop,
(b)  the need for the shop to be kept open on the day or days concerned,
(c)  the likely effect of the proposed exemption on the local economy, tourism and small businesses and other businesses in the area,
(d)  the likely effect of the proposed exemption on employees of, or persons working in, the shop.
(3)  An application for an exemption under this Division may not be made in respect of a shop that is not in existence when the application is made.
(4)  An exemption may:
(a)  apply in respect of one or more specified restricted trading days or all restricted trading days, or
(b)  apply in respect of specified times on a restricted trading day.
(5)  An exemption has effect for the period, not exceeding 3 years, specified by the Director-General in the order.
(6)  The period of the exemption may not be extended by an amendment to the order.
(7)  An exemption may be subject to conditions.
11   Applications for exemptions
(1)  An application for an exemption by the Director-General is to be:
(a)  made in the manner and the form prescribed by the regulations, and
(b)  made not later than 28 days before the first day for which the exemption is sought, and
(c)  accompanied by the application fee, if any, prescribed by the regulations.
(2)  An application may be made in respect of more than one shop.
(3)  An applicant must, if required to do so, provide the Director-General with such additional information and documents in relation to an application as the Director-General may request.
11A   Publication of orders and reasons for decisions
(1)  The Director-General must publish on the Departmental website an order granting an exemption and the reasons for any decision made by the Director-General to grant or not to grant an exemption.
(2)  An order and reasons must be published as soon as practicable after the relevant decision is made.
11B   Deemed refusal of application
If the Director-General has not determined an application for an exemption before the end of the period of 40 days after the application was made to the Director-General (or such longer period as the Director-General determines with the consent in writing of the applicant), the Director-General is taken, for the purposes of section 12, to have made a decision to refuse to grant the exemption.
11C   Application of Division to applications for amendment or revocation of exemption orders
(1)  An occupier of a shop that is subject to an exemption under this Division may apply for the amendment or revocation of the exemption order.
(2)  This Division applies to any such application in the same way as it applies to an application for an exemption.
12   Administrative reviews by Civil and Administrative Tribunal
(1)  Any person who has applied for an exemption and is aggrieved by any of the following decisions may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision:
(a)  a determination of the Director-General to refuse to grant or to amend or revoke an exemption,
(b)  a determination of the Director-General as to the conditions subject to which, or the period for which, an exemption is granted.
(2)  Any other person who considers himself or herself to have a sufficient interest in an application for an exemption under this Division may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any such decision.
(3)  The Civil and Administrative Tribunal is not required to conduct an administrative review of a decision on the application of a person referred to in subsection (2) if it is not satisfied that the person has a sufficient interest in the application for exemption.
(4)  A representative of an industrial organisation of which persons employed or engaged in shops are entitled or eligible to become members may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions:
(a)  a determination of the Director-General to grant or to amend an exemption,
(b)  a determination of the Director-General as to the conditions subject to which, or the period for which, an exemption is granted.
(5)  In this section:
industrial organisation means:
(a)  an industrial organisation of employees within the meaning of the Industrial Relations Act 1996, or
(b)  an association of employees registered as an organisation under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth.
13   Staffing on restricted trading days
(1)  Any exemption granted by the Director-General under this Part is subject to the condition that, on a restricted trading day, the exempted shop is staffed only by persons who have freely elected to work on that day.
(2)    (Repealed)
(3)  This section has effect despite any other law.
14   Offence—failure to comply with exemption condition
An occupier of a shop must not fail to comply with a condition of an exemption imposed under this Division.
Maximum penalty: 50 penalty units.