Re: Harbour Town Centre Management Pty Ltd
[2025] QIRC 297
•31 October 2025
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Re: Harbour Town Centre Management Pty Ltd [2025] QIRC 297 |
PARTIES: | Harbour Town Centre Management Pty Ltd (Applicant) |
CASE NO.: | TH/2025/7 |
PROCEEDING: | Application to amend Trading Hours – Non-exempt shops |
DELIVERED ON: | 31 October 2025 |
| HEARING DATES: | 13 October 2025 14 October 2025 |
MEMBER: HEARD AT: | Industrial Commissioner Power Brisbane |
ORDERS: | 1. The application is dismissed |
| CATCHWORDS: | INDUSTRIAL LAW – TRADING HOURS ORDER – Application to declare Harbour Town Premium Outlets retail precinct a Type 1 trading area – criteria to which Commission must have regard when making an order – application opposed by relevant union – insufficient evidence to support the approval of the application - application dismissed. |
LEGISLATION: | Trading (Allowable Hours) Act 1990 (Qld), ss 3, 16D, 21, 22 |
| CASES: | Re: National Retail Association Limited, Union of Employers [2014] QIRC 157 Re: National Retail Association Limited, Union of Employers [2014] QIRC 150 |
| APPEARANCES: | Mr B. McMillan of Counsel instructed by RedeMont for the Applicant Mr J. Murdoch and Mr T. Spence of Counsel instructed by Optimum Legal Solutions Pty Ltd for the Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees |
Reasons for Decision
On 11 July 2025 Harbour Town Centre Management Pty Ltd ('the Applicant') filed an application for a trading area order pursuant to the Trading (Allowable Hours) Act 1990 ('the Act').
The application is made pursuant to s 21(1) and s 23(1)(b) of the Act for a trading area order to declare that the Harbour Town Premium Outlets retail precinct ('Harbour Town') is a 'Type 1' trading area.
The application is opposed by the Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees ('SDA').
Evidence
Affidavits were tendered for the following witnesse:
· Mr Greg Day, Centre Manager (Harbour Town)
· Ms Madeleine West, Retail & Tourism Marketing Manager (Harbour Town)
· Ms Faava Reginia Tufuga (SDA Information Officer)
· Ms Naomi McQuire (SDA Organiser)
Legislative provisions
The objects of the Act are outlined in s 3:
The objects of this Act include—
(a) to decide the allowable trading hours of non-exempt shops and independent retail shops throughout Queensland;
(b) to require employees be given a holiday for, and to decide when certain places must close on, Anzac Day;
(c) to provide for closure of banks and insurance companies on bank holidays;
(d) to prohibit soliciting in any publication for business to be transacted outside allowable trading hours at any factory or shop;
(e) to facilitate trading in tourist areas.
Section 21 of the Act provides that the Commission may make an order in the following circumstances:
(1) The industrial commission may make an order (a "trading area order")—
(a)to declare that an area mentioned in section 16AA (1) or (2) is a type 1 or 2 trading area; or
(b)to change the external boundaries of a trading area that is an area mentioned in section 16AA (1) or (2) ; or
(c)to declare that an area not mentioned in section 16AA (1) or (2) is a type 1, 2 or 3 trading area.
Example for paragraph (c)—
an order declaring the town of Kingaroy, identified by reference to its external boundaries, is a type 2 trading area
(2) However, the industrial commission must not make a trading area order if the effect of the order would be to reduce the core trading hours for a day, under section 16Dor 16E, of a non-exempt shop situated in the area the subject of the order.
(3) If the area the subject of a trading area order is an area not mentioned in section 16AA (1) or (2) , the trading area order must identify the area by reference to its external boundaries.
(4) A trading area order has effect for the purpose of
(a)section 16D; and
(b)to the extent the context permits section 16E .
Section 22 provides that when the Commission is making an order under s 21, it 'must have regard to' the following –
(a) the location and external boundaries of the area the subject of the order;
(b) the needs of industry in the area, including the tourist industry;
(c) the effect of the order on the core trading hours of non-exempt shops in the area;
(d) the needs of the population of the area, including the rate of population growth;
(e) the likely impact of the order on employees and employment;
(f) the interests of business and consumers;
(g) the public interest;
(h) the view of a local government that—
(i)is an applicant for the order; or
(ii)has been granted leave to appear and be heard under section 23 (5);
(i) any other matter the commission considers relevant to the making of the order.
Section 16D(2) outlines the following as Type 1 trading areas –
· Area of New Farm of Inner City of Brisbane
· Gold Coastal Tourist Area
· Hamilton North Shore Area
· Mossman and Port Douglas Tourist Area
· The Cairns CBD Area
· The Great Barrier Reef Wonderland Tourist Complex
· The Pacific Fair Shopping Centre located at Broadbeach Waters on the corner of Hooker Boulevard and Sunshine Boulevard
· Any other area declared in a trading area order to be a type 1 trading area.
Section 16D(2) also outlines the allowable trading hours for non-exempt shops in Type 1, Type 2, and Type 3 trading areas.
Harbour Town is currently considered a Type 2 trading area for the purpose of trading hours for the centre’s non-exempt shops.
Non-exempt shops in Type 1 trading areas are permitted to remain open for longer hours than those in Type 2 trading areas. When compared with Type 2 trading areas, shops in Type 1 trading areas are permitted to open for an additional 2 hours on Monday to Friday, an additional 1 hour on Saturday, and an additional 5 hours on Sunday and public holidays.
The onus of proof in applications of this nature was considered by the Full Bench in Re: National Retail Association Limited, Union of Employers stating:[1]
Although, strictly speaking, there is no onus of proof, the Commission has previously stated that a decision to enlarge trading hours for non-exempt shops requires a departure from the status quo. To that extent an applicant of orders under s21 of the Act, in this case the NRA, carries the onus of satisfying the Commission that the Application should proceed.
[1] [2014] QIRC 157, [19].
I adopt the reasoning above and accordingly the Applicant in this matter carries the onus of satisfying the Commission that the application should proceed.
Each of the elements outlined in s 22 will be considered below.
(a)the location and external boundaries of the area the subject of the order;
The Applicant describes Harbour Town as a retail precinct in Biggera Waters on the northern Gold Coast surrounded by developing residential areas.
The external boundaries of the Harbour Town area are described in the affidavit of Mr Day, with the external boundaries identified as Oxley Avenue, Lewis Avenue, Harbour Town Drive and Brisbane Road.
Consideration of this criterion is not significant to the decision in relation to this application.
(b)the needs of industry in the area, including the tourist industry;
The evidence of Mr Day and Ms West included reference to the needs of tourist industry served by Harbour Town.
Ms West's evidence stated that Harbour Town has the only accredited visitor information centre on the Gold Coast and a dedicated tourism lounge that is currently being expanded to include more visitors.
In her affidavit dated 29 August 2025, Ms West states that the Harbour Town precinct receives over 10 million visitors annually, with the tourism lounge in the year to 30 June 2025 receiving 48 843 guests and more than 1208 tour groups.
Ms West gave evidence of the work undertaken to engage with tourism include hosting famils to allow tourism operators to become familiar with Harbour Town along with participating in tourism forums around the Gold Coast and in international tourism activities.
The evidence of Mr Day and Ms West outlined Harbour Town's involvement with Experience Gold Coast with the intent of making Harbour Town a stop on tourist itineraries.
The practice of tour buses taking tour groups to the theme parks at Biggera Waters was described by Ms West, with these tour groups visiting Harbour Town following their trips to the theme parks.
Ms West's second affidavit dated 26 September 2025, outlined the tourism grant from the Gold Coast City Council to Harbour Town for $80 000 to offer wildlife tours in the morning. The Applicant submits that it is intended that those tourists would then stay on and shop at Harbour Town after the tour.
The Applicant submits that this tourism focus sets Harbour Town apart from nearby shopping centres such as Helensvale and Robina Town Centre.
Ms West gave evidence about the arrangement whereby hotel shuttle buses pick up hotel guests from various locations on the Gold Coast and transport them to Harbour Town before returning the guests to their hotels in the afternoon.
In addition, the evidence of Ms West referred to the arrangement whereby bus operators stop at Harbour Town on route to Gold Coast hotels after picking up passengers from early morning flights from Brisbane Airport. The same practice occurs in reverse with bus operators stopping at Harbour Town in the afternoon to allow customers to shop after they have checked out of hotels on the Gold Coast before late night international departures from Brisbane Airport.
I note the SDA's submissions regarding the lack of evidence from the Tour Group sector. I accept that no probative evidence was given indicating that tourists would visit during extended periods of opening if trading hours were extended for non-exempt retailers.
Whilst the evidence of Ms West and Mr Day demonstrates the tourism focus of Harbour Town, it seems to me there is insufficient evidence that the allowable span of trading hours does not meet the needs of the current tourism market. I note for example the evidence that the currently advertised shuttle bus departs Broadbeach at 9.15am and the last bus returns at 2pm. These operating times are well inside the current allowable span of trading hours.
It may be the case that the demand for extended trading hours may change in the future with the commencement of wildlife tours and other tourist activities, however at this point there is no compelling evidence that the needs of the tourism industry, or any other industry, will be served by extended trading hours.
(c)the effect of the order on the core trading hours of non-exempt shops in the area;
Mr West deposed that the purpose of the application is to allow non-exempt shops in the Harbour Town centre to adopt extended trading hours on high traffic trading days such as Boxing Day and Black Friday.
The Applicant submits that of the current 220 retailers within Harbour Town, approximately 34% are already likely classified as exempt or independent retail shops under the Act. Accordingly, approximately 66% of Harbour Town tenants are non-exempt shops that would have the option of opening over a greater span of hours in the application were granted.
The Applicant submits that the core trading hours for those non-exempt shops at Harbour Town under s 16D(2) of the Act are:
Day Opening time Closing time Monday to Friday 7am 9pm Saturday 7am 9pm Sunday and public holidays, other than closed days 9am 6pm
The Applicant further submits that if the order is made and Harbour Town became a Type 1 trading area, the core trading hours permitted under the Act would be increased by 16 hours per week:
Day
Opening time
Closing time
Monday to Friday
6am
10pm
Saturday
7am
10pm
Sunday and public holidays, other than closed days
7am
9pm
The Applicant submits that the tenants of Harbour Town are each subject to commercial tenancy agreements pursuant to the Retails Shop Lease Act 1994, which stipulate opening and closing hours currently set from 9am to 5.30pm Monday to Wednesday, 9am to 7pm on Thursday, 9am to 5.30pm on Friday and Saturday and from 10am to 5pm on Sunday, during which businesses are required to remain open ('Lease Trading Hours').
The tenancy agreements preclude tenants from any obligation to open beyond the Lease Trading Hours. The Lease Trading Hours are substantially less per week than that currently allowed for non-exempt shops at Harbour Town as part of a Type 2 trading area under ss 16D(2) of the Act.
The Applicant contends that the effect of the order, if granted, would be to allow the centre to remain open for longer and allow the non-exempt shops to enjoy the same trading status as the other retailers in the centre.
I accept the Applicant's submission that an order will have no automatic effect on the core trading hours because these hours are subject to leases into which each individual non-exempt retailer has entered with the centre. The Applicant submits that if the application were granted and some retailers chose to open on Black Friday and Boxing Day, the effect of the order would be limited to those days.
The difficulty in assessing the effect of the proposed order on the core trading hours of non-exempt shops is that there is no evidence from individual non-exempt shops on this matter. It may be the case that some non-exempt shops only choose to open for extended hours on Black Friday and Boxing Day, however, the order would allow non-exempt shops to choose to open for extended hours on every day of the year.
(d)the needs of the population of the area, including the rate of population growth;
Mr Day's evidence referenced statistics from a report titled 'Golden Opportunities: Expanding the economic potential of the Gold Coast' indicating estimated growth of the Gold Coast economy of 10.1% by 2028 fuelled in part by strong population growth estimated to increase by approximately 44% by 2040. Specifically in relation to the Harbour Town development precinct, 2000 new residences are scheduled to be delivered over the next 10 years.
Mr Day's evidence is that the effect of the proposed order would be to assist residents within the Harbour Town precinct to access speciality retail outside of a standard 9am to 5pm trading regime where they otherwise would not have access due to their own working commitments.
Whilst the data from Mr Day's affidavit refers to the Gold Coast at large, I accept the evidence that there is likely to be significant population growth in the area surrounding Harbour Town in the coming years.
In circumstances where the evidence indicates that only one of the non-exempt shops actually trades for the hours permitted by the Type 2 area classification, it would seem that the needs of the population are being served by the current allowable trading hours.
(e)the likely impact of the order on employees and employment;
The evidence of Mr Day is that the impact of the proposed order on employees and employment will be minimal. Mr Day deposes the following –
· All shops are subject to tenancy agreements that preclude them from any obligation to remain open outside lease trading hours;
· In practice it is unlikely that the proposed order would have any lasting impact on trading hours other than on special high-traffic trading days. For example, Pacific Fair is a Type 1 trading area under s 16D of the Act, but currently has core trading hours that are the same as Harbour Town.
· The genesis of the application is catering for high volume trading day such as Black Friday and Boxing Day whereby its obligation to its non-exempt shops to shutter their doors whilst a raft of consumers remain within the precinct is impractical and against the interest of its tenants.
The Applicant submits that the impact on those employees who choose to work on Black Friday and Boxing Day would be beneficial and limited to only those two days, noting further that penalty rates would apply to any additional hours worked on Boxing Day.
Ms McQuire, an organiser with the SDA, gave evidence that she had worked as the organiser for the union representing the area in which Harbour Town is located for approximately 12 years. Ms McQuire did not accept the Applicant's contention that 'as a matter of logic' the proposed order would provide additional available hours for retail workers at Harbour Town. Ms McQuire gave evidence that extended hours did not necessarily involve an increase to the wages budget of a non-exempt store, with adjustments to the rostering process potentially involving moving employees between departments to cover the additional hours.
Annexed to Ms McQuire’s affidavit were a number of employee surveys in relation to the issue of extended trading hours at Harbour Town. I note the Applicant's submissions regarding the limited efficacy of the union members surveys and accept that the surveys represent a small sample of the employees of non-exempt shops. These surveys do however provide some evidence that employees are concerned about negative impacts of the proposed order particularly in relation to their family responsibilities.
It is difficult to assess the likely impact of the order on employees and employment given the lack of evidence from the operators of any non-exempt shops regarding how they would make arrangements to roster staff for the extended hours. If it is the case that the extended trading hours would only be adopted for Black Friday and Boxing Day, I accept that the likely impact on employees and employment would be minimal. However, if the order is made it will then be open to non-exempt shops to trade for the full span of hours as permitted in Type 1 category areas. If non-exempt shops adopted the full span of allowable trading hours, the impact on employees would necessarily be more significant.
(f) the interests of business and consumers;
The evidence of Mr Day and Ms West referred to interests of business and consumers being served in having an increased opportunity for trading hours on high-traffic days such as Black Friday and Boxing Day.
Ms West states in her affidavit that some 3208 customers were in the centre between 8pm an 9pm on Black Friday 2024 and 4,302 customers in the centre between 5pm and 6pm on Boxing Day.
Mr Day deposed that increased trading hours would prevent adverse outcomes such as those experienced at Harbour Town on Boxing Day 2024 where it was reported to him that thousands of frustrated customers remained in the precinct following the 6pm closure.
Mr Day stated that if Harbour Town had been declared a Type 1 trading area, the centre could have remained open until 9pm on Boxing Day, contending that longer trading hours ultimately benefits consumers on high volume trading days and allows businesses to stay open and generate greater sales if they so wish.
Mr Day gave evidence of the safety concerns regarding the process by which significant numbers of customers are required to exit the shops at 6pm through half closed doors. The Applicant accepted that it is incumbent upon centre management to manage those challenges, however, submits that this evidence demonstrates that at 6pm on Boxing Day there were still thousands of people interested in shopping. The Applicant contends that allowing the shops to remain open until 9pm on Boxing Day would encourage customers to shop over a greater span of hours, minimising safety issues.
The Applicant submits that the feedback provided to Ms West from international tourists was that they expected the centre to be open later in the day. The Applicant further submits that the tourists on the Gold Coast and local community would be better served by having the opportunity to shop over a greater span of hours.
The Applicant contends that it can be inferred from the existence of customers at closing time on Black Friday and Boxing Day that the non-exempt retailers would utilise and benefit from additional trading hours.
Notwithstanding the lack of evidence from any non-exempt shops at Harbour Town, the evidence of Mr Day and Ms West demonstrates that there was significant consumer demand at closing time on Boxing Day 2024. In my view additional staff deployed at the entrance to shops prior to closing time would adequately address any safety risk by ensuring an orderly flow of customers in and out of the store.
I accept that it may be in the interests of businesses and consumers to trade for extended hours on Black Friday and Boxing Day, however, I again note that the order sought will allow for expanded trading hours on every other day of the year. In circumstances where the evidence indicates that the non-exempt shops do not currently open for the full allowable hours, the order sought would have limited impact on the interests of business and consumers for the other 363 days of the year.
(g) the public interest;
In Mr Day's affidavit he deposes to the public interest in the application being granted for Harbour Town on the following basis –
· it will provide shopping opportunities for the public who might work standard hours of 9am-5pm;
· it offers employment opportunities for local residents; and
· it will allow consumer pedestrian and vehicle traffic to be effectively managed in and out of the retail precinct, noting that police are currently hired to work point duty and the phasing of traffic lights is amended to allow effective flow of vehicles in and out of the precinct.
The Full Bench in Re: National Retail Association Limited, Union of Employers considered the 'public interest' in the context of a trading order application as follows: [2]
Public interest: The concept of 'public interest' is referred to in many statutes. It has been described as being of the widest import. In O'Sullivan v Farrer, Mason CJ, Brennan, Dawson and Gaudron JJ wrote that:
“… the expression 'in the public interest', when used in a statute, classically imports a discretionary value judgement to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view”
As differently constituted Full Benches of the Commission have observed, public interest matters “encompass variety of considerations, amongst which is a requirement to weigh and balance relevant issues” and “any competing interests”.
The “public interest” in relation to the extent of trading hours might differ from one location to another. In some places, there might be a clear public interest in having extended trading hours (including for reasons referrable to other criteria listed in s 26). In other locations, the public interest might favour a different outcome. There is no reason to adopt a narrow construction of the expression “public interest” for the purpose of deciding this or any other trading hours application.
[references omitted]
[2] [2014] QIRC 157, [49] – [51].
The Applicant submits that it is in the public interest to allow for the expansion of trading hours at Harbour Town, particularly on high-traffic trading days such as is proposed on Boxing Day and Black Friday. Further, the Applicant submits there is unlikely to be any negative impact of the proposed order and there is no reason for the Commission to conclusion that the public interest might favour a different outcome.
Regarding the contention that the application would allow for employment opportunities, the evidence of Ms McQuire indicates that such an outcome is unlikely in circumstances where wages budgets are not increased. No evidence from non-exempt shop operators has been led to indicate that the application would in fact lead to further employment opportunities.
In circumstances where the non-exempt shops other than Woolworths are not currently operating to their allowable hours, it appears unlikely that this application would result in the public accessing shopping opportunities outside of the standard work hours of 9am to 5pm.
The Applicant submits that the Act recognises the need for longer trading hours before Christmas by expressly providing extended trading hours in the lead-up to Christmas, noting that it is a value judgement as to whether Christmas shopping or sale shopping after Christmas is important. It seems to me that the legislature has made that judgement by specifically providing for longer trading hours in the Act prior to Christmas and making no specific provision for extended hours for sale shopping after Christmas. In my view it cannot be inferred from the allowance of extended trading hours prior to Christmas that the legislature intended for longer trading hours to be applied to other busy retail periods throughout the year.
The SDA submits that it is in the public interest to not disturb the status quo in circumstances where there are other nearby significant shopping centres that may make a similar case to that made by Harbour Town due to their location on the Gold Coast. The SDA raises significant concerns that granting this application will upset the status quo resulting in a scramble to pursue similar applications. The SDA submits that there is a public interest in stability and order for both employers and employees in retail in this area. The Applicant submits that Harbour Town can be distinguished from the other shopping centres due to their being an outlet store focussed on the tourism market. I accept that Harbour Town is different from the other centres on the basis that it is an outlet centre, however as a centre that engages in retail, I am not persuaded that it is sufficiently different to disturb the status quo in the retail sector in the geographical region.
The Applicant submits that the focus of the application is to extend trading hours on Black Friday and Boxing Day, however as previously noted, the effect of the order would be to allow extended trading throughout the entire year. Notwithstanding the limitations of the SDA survey, the survey provides evidence of concerns raised by some employees as to the impact of extended trading hours. The potential of having to be available over a wider spread of hours and the consequence for family arrangements is legitimate concern to some of these employees. Although there may be some public interest in allowing shopping over an extended period on Black Friday and Boxing Day, I am not persuaded that there is sufficient evidence that the proposed order would ultimately be in the public interest.
(h) the view of a local government that—
(i) is an applicant for the order; or
(ii) has been granted leave to appear and be heard under section 23(5) ;
The relevant local government authority, the Gold Coast City Council, advised the Commission that it did not seek to be heard in this matter.
I am not persuaded by the SDA's submission that it can be inferred that the Council did not seek to be heard because it does not see a need for extended trading hours. There is no evidence that the Council has considered this application and formed any view on the matter.
In circumstances where the Gold Coast City Council is not an applicant and has not sought to be heard, I do not consider s 22(h) to be a significant consideration.
(i) any other matter the commission considers relevant to the making of the order.
I consider the current trading hours adopted by non-exempt shops in Harbour Town to be relevant to this application.
The evidence before the Commission is that none of the non-exempt shops other than Woolworths are currently opening for the full span of trading hours allowed as a Type 2 trading area.
In my view the underutilisation of the current trading hours available to non-exempt shops in Harbour Town weighs against granting the application. The fact that the non-exempt shops open for less than that permitted as a Type 2 trading area indicates that there is no genuine requirement for extended trading hours for the days outside of Black Friday and Boxing Day.
Consideration
Harbour Town is currently classified as a Type 2 trading area. A declaration that the centre become a Type 1 trading area would have the effect of increasing the allowable trading hours by two hours Monday to Friday, one hour on Saturday and five hours on Sundays and public holidays.
As identified by the Full Bench in Re: National Retail Association Limited, Union of Employers, the Act does not provide guidance as to how the Commission is to have regard to each of the considerations outlined in the Act.[3] The Full Bench considered that it was for the decision-maker to determine the weight to be given to the criteria provided the consideration is genuine.[4]
[3] [2014] QIRC 150, [16].
[4] Ibid, [18].
The Applicant has been clear that the intention of the application is primarily to obtain additional trading hours for non-exempt shops at Harbour Town on Black Friday and Boxing Day. Whilst this is not inconsistent with the application that the centre be declared a Type 1 trading area, the nature of such a declaration is a permanent change to trading hours. This is distinct from an order to extend trading hours for a particular date for a special event.
Notwithstanding the Applicant's acknowledgement that the application is intended to address trading hours on Black Friday and Boxing Day, I accept the SDA's submission that once an order of the type sought is made, future centre management operators will not be restricted to the limited use of extended hours to those two days.
The Applicant made submissions regarding the legislative recognition of Pacific Fair as a Type 1 trading area, contending that this provides a basis for Harbour Town to also be considered as a Type 1 trading area. Pacific Fair is not, in my view, comparable to Harbour Town on the basis that Pacific Fair is centrally located on the Gold Coast in the midst of high-rise hotels catering for domestic and international tourists. Pacific Fair clearly services the needs of the tourism industry on the Gold Coast, being in close proximity to the casino, convention centre and beaches. Whilst I accept the submission that the inclusion of Pacific Fair in the Act indicates a legislative intention that shopping centres may be considered as Type 1 trading areas, in my view Harbour Town is not analogous to Pacific Fair.
Proper regard has been given to the mandatory considerations outlined in s 22 as outlined above. There is no direct evidence from any of the operators of non-exempt shops in Harbour Town of a need for extended hours, nor of an intention to utilise extended hours if the application were granted. In balancing consideration of the legislative criteria, I am not satisfied that the Applicant has discharged its onus to demonstrate that the application should be granted.
For the reasons outlined above, I am not satisfied that my discretion should be exercised to declare Harbour Town Premium Outlets retail precinct a Type 1 trading area.
The application is dismissed.
I order accordingly.
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