Re: National Retail Association Limited, Union of Employers
[2017] QIRC 62
•14 June 2017
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION:
Re: National Retail Association Limited, Union of Employers [2017] QIRC 062
PARTY:
National Retail Association Limited, Union of Employers
(Applicant)CASE NOS:
TH/2016/16, TH/2016/17 and TH/2016/18 PROCEEDING:
Application to amend Trading Hours Order (Warwick, Stanthorpe and Pittsworth Areas)
DELIVERED ON:
14 June 2017 HEARING DATES:
2 December 2016
14 February 2017
20 February 2017 (Inspections ‑ Stanthorpe, Warwick and Pittsworth)
21 to 24 February 2017
4 April 2017 (NRA's Submissions)
2 May 2017 (MGA's Submissions)
2 May 2017 (SDA's Submissions)
16 May 2017 (NRA's Submissions in Reply)HEARD AT:
Brisbane and Toowoomba MEMBER:
Industrial Commissioner Thompson ORDERS: 1. Application TH/2016/16 (Warwick) is granted with the amendment to the Order Trading Hours ‑ Non‑Exempt Shops Trading by Retail ‑ State (in accordance with the Schedule attached to the Application filed 14 October 2016) to take effect from 12 July 2017.
2. Application TH/2016/17 (Stanthorpe) is granted with the amendment to the Order Trading Hours ‑ Non‑Exempt Shops Trading by Retail ‑ State (in accordance with the Schedule attached to the Application filed 14 October 2016) to take effect from 12 July 2017.
3. Application TH/2016/18 (Pittsworth) is not granted.
CATCHWORDS: INDUSTRIAL LAW ‑ TRADING HOURS ORDER ‑ Application to amend trading hours order ‑ Inspections ‑ Witness evidence ‑ Matters relevant to ss 21 and 26 considered ‑ Application TH/2016/16 (Warwick) granted - Application TH/2016/17 (Stanthorpe) granted - Application TH/2016/18 (Pittsworth) not granted.
CASES: Trading (Allowable Hours) Act 1990, s 21, s 26
Trading (Allowable Hours) Amendment Bill 2017
Industrial Relations Act 1999, s 320
Re: National Retail Association Limited, Union of Employers [2015] QIRC 044
Re: National Retail Association Limited, Union of Employers [2015] QIRC 204
Trading Hours ‑ Non‑Exempt Shops Trading By Retail ‑ State (TH/2007/7) ‑ Decision < Hours ‑ Non‑Exempt Shops Trading by Retail ‑ State (TH/2008/3) ‑ Decision < National Retail Association Limited, Union of Employers [2015] QIRC 027
National Retail Association Limited, Union of Employers AND Queensland Retail Traders and Shopkeepers Association (Industrial Organisation of Employers) and Another (TH/2009/3) ‑ Decision < v National Retail Association Limited, Union of Employees [2015] QIRC 172
Re: National Retail Association Limited, Union of Employers [2014] QIRC 063
Re: National Retail Association Limited, Union of Employers [2014] QIRC 157
Trading Hours Order ‑ Non‑Exempt Shops Trading by Retail ‑ State (2003) 174 QGIG 1339
National Retail Association Limited, Union of Employers [2016] QIRC 148APPEARANCES: Mr M. Cole for the National Retail Association Limited, Union of Employers, Applicant.
Ms N. Prestia for the Master Grocers Australia Limited.
Mr D. Kerr for the Shop, Distributive and Allied Employees Association (Industrial Organization of Employees.Decision
[1]Applications to amend the Trading Hours ‑ Non‑Exempt Shops Trading by Retail ‑ State (the Order) were lodged by the National Retail Association Limited, Union of Employers (NRA) with the Industrial Registrar on 14 October 2016 in relation to the following areas:
· Warwick;
· Stanthorpe; and
· Pittsworth.
[2]Schedules attached to each application identified similar Orders for each of the applications as:
Opening Time Closing Time
Monday to Friday 8.00 a.m. 9.00 p.m.
Saturday 8.00 a.m. 5.00 p.m.
Sunday 9.00 a.m. 6.00 p.m.
Public Holidays 8.30 a.m. 5.30 p.m.
(excluding Good Friday, 25 April,Labour Day and 25 December)
[3]The boundary area for each application were identified as follows:
The Warwick Area
"Commencing at the intersection of the Cunningham Highway and Jackie Howe Dr; then by a line in a westerly direction to the intersection of Victoria St and Rosehill Rd; then by line in a southerly direction to the intersection of New England Hwy and Pratten St; then by a line in an easterly direction to the intersection of Pratten St and Pratten St East; then by a line in a northerly direction to the point of commencement."
The Stanthorpe Area
"Commencing at the intersection of the New England Highway and Connor St; then by a line in a westerly direction to the intersection of Corundum St and Talc St; then by a line in a southerly direction to the intersection of Bridge St and Kilpa St; then by a line in an easterly direction to the intersection of Wolfram St and Anzac St; then by a line in a northerly direction to the point of commencement."
The Pittsworth Area
"Commencing at the intersection of Campbell St and Vine St; then by a line in a westerly direction to the intersection of Helen St and Young St; then by a line in a southerly direction to the intersection of Golf Course Rd and Hill St; then by a line in an easterly direction to the intersection of Hill St East and Sullivan Cr; then by a line in a northerly direction to the point of commencement."
[4]On 14 November 2016 in a Mention before Deputy President O'Connor the NRA raised the prospect of the three applications being heard together.
[5]At a further Mention before the Commission (as constituted) on 2 December 2016 the possibility of joining the three applications together was canvassed by the NRA and the Shop, Distributive and Allied Employees Association (Industrial Organization of Employees)(SDA) who each were able to identify efficiencies as a consequence of such joinder.
[6]The Master Grocers Australia Limited (MGA) indicated that the structure of the case they would present in opposing the applications would unlikely benefit from the three applications being joined however as long as the joinder would not have an adverse impact upon the ability to run their case they would not oppose such a course of action.
[7]The Commission informed the parties that subject to the filing of a formal application by the NRA approval to join the three applications would be granted.
[8]On 6 December 2016 the NRA filed with the Industrial Registrar an application seeking that the following trading hours applications be jointly heard:
· Warwick (TH/2016/16);
· Stanthorpe (TH/2016/17); and
· Pittsworth (TH/2016/18).
Legislation
[9]Section 21 of the Trading (Allowable Hours) Act 1990 (the Act) states:
"21 Trading hours orders on non‑exempt shops
(1)The industrial commission may decide trading hours for non‑exempt shops.
(2)However, the industrial commission is not to decide trading hours that are less than the following hours on a stated day, other than a public holiday ‑
(a) 8 a.m. and 9 p.m. for Monday to Friday;
(b) 8 a.m. and 5 p.m. for Saturday.
(3)The industrial commission may make any order it considers necessary or convenient to give effect to a decision made under subsection (1), including, for example, an order specifying ‑
(a)the earliest time when non‑exempt shops may open on any day and the latest time when non‑exempt shops must close on any day; or
(b)hours for trading wholesale different from the hours fixed for trading retail; or
(c)different trading hours by reference to ‑
(i)classes of non‑exempt shops; or
(ii)localities, or parts of localities, where non‑exempt shops are situated.
(4) In this section ‑
public holiday includes, if another day is substituted for a public holiday under the Holidays Act 1983, section 3, the day that would have been the public holiday if the substitution had not happened."
[10]Pursuant to s 26 of the Act, when the Industrial Commission is making an order under s 21 of the Act, it must have regard to:
"(a) the locality, or part thereof, in which the non‑exempt shop or class of non‑exempt shop is situated;
(b) the needs of the tourist industry or other industry in such locality or part;
(c) the needs of an expanding tourist industry;
(d) the needs of an expanding population;(e) the public interest, consumers' interest, and business interest (whether small, medium or large);
(f) the alleviation of traffic congestion;
(g) the likely impact of the order on employment;(h) the view of any local government in whose area the order is likely to have an impact;
(i) such other matters as the industrial commission considers relevant."
Inspections
[11]On 20 February 2017 the Commission undertook inspections in each of the three locations subject of the applications which included visits to both exempt and non‑exempt retail businesses as well as the various shopping precincts.
Witnesses Lists
[12]Witnesses were as follows:
NRA
· David England (England) (TH/2016/16);
· Jon Russell (Russell) (TH/2016/16);
· Jason Gard (Gard) (TH/2016/16);
· Scott Templeman (Templeman) (TH/2016/16 and 17);
· David Watson (Watson) (TH/2016/18);
· Gerard Winzenberg (Winzenberg) (TH/2016/16 and 17);
· Allen Wright (Wright) (TH/2016/16, 17 and 18);
· Michael Vorrasi (Vorrasi) (TH/2016/16);
· Julia Keogh (Keogh) (TH/2016/16);
· Chanh Le (Le) (TH/2016/18);
· Neil McCosker (McCosker) (TH/2016/16 and 17); and
· Dr Gary Mortimer (Mortimer) (TH/2016/16, 17 and 18).
MGA
· Dennis Pugsley (Pugsley) (TH/2016/16);
· Mark Droney (Droney) (TH/2016/18);
· Fabrizio Carmignani (Carmignani) (TH/2016/16 and 17);
· Frank Spano (Spano) (TH/2016/16 and 17);
· Allison Webster (Webster) (TH/2016/16);
· Shane Smith (TH/2016/18); and
· Deborah Smith (TH/2016/16, 17 and 18).
Withdrawn Statements
[13]In the course of the proceedings a number of statements filed by NRA witnesses in accordance with the issued Directions Orders were withdrawn and subsequently not considered in the determination of the application. The withdrawn statements were from:
· Trudy Grant (TH/2016/16);
· Denis Stanley Kenny (TH/2016/16);
· Michael Kairouz (TH/2016/16);
· Leeanne Gangemi (TH/2016/17);
· Mick Spiller (TH/2016/17);
· Michael Carpenter (TH/2016/18); and
· Brandon Boyce (TH/2016/18).
[14]The Commission in deciding to precis the evidence of the witnesses and the submissions notes that all the material has for the purposes of this decision been considered in its entirety.
Applicant
England ‑ Warwick
[15]England is the Regional Manager of Big W Discount Stores in locations across Queensland, Northern Territory and northern New South Wales, all of which strive to provide customers with the best quality merchandise at the best possible prices. In Queensland there are 46 stores of which 18 operate in major regional centres. In other states of Australia Big W stores trade longer hours than the Queensland stores and as a national retailer they would like to see more flexibility in trading hours to service customers the same as they do in the other states and territories. The offer at Big W stores include:
· family apparel;
· footwear;
· nursery;
· art and craft;
· homewares;
· stationary and office;
· toys;
· sporting;
· health and beauty;
· books;
·home entertainment;
·electronic;
·cards;
·vouchers;
·layby;
·parcel pickup;
·photo processing; and
·trained cosmetic consultants.
[16]As a strong anchor tenant in shopping centres Big W encourages more shoppers into the centres which assists other tenants with their trade and sales. In recent years trading conditions across the retail sector have been very tough and it is important that capital investment in regional Queensland stores be utilised. Currently data suggests that approximately 30 to 40 per cent of Big W trade could be moved out of Warwick to Toowoomba on Sundays which makes the escape expenditure quite substantial.
[17]If the application was successful the Big W store in Warwick would engage team members for an additional 60 hours of employment in the store following consultations with staff. The additional hours would be voluntary for existing employees and whilst those additional hours may go to current employees there was potential for employing extra staff.
[18]An Enterprise Bargaining Agreement in place with the SDA contains an agreed range of normal hours in which the hours worked are considered to be social hours and do not attract penalty rates. Those hours are:
· Monday to Friday ‑ 6.00 am to midnight; and
· Saturday ‑ 6.00 am to 10.00 pm.
Issues that may arise over rostering are able to be dealt with under the Dispute Resolution Process.
[19]Extended hours of trade would benefit the interests of small, medium and large retailers in the centre plus also having an economic benefit, creating jobs and providing customer convenience.
[20]Under cross‑examination England indicated he was authorised to give evidence on behalf of Big W [Transcript p. 3‑7] but had not spoken to Warwick residents or travellers about the issue of trading hours [Transcript p. 3‑11]. The current hours of trade in Warwick is less than the available hours [Transcript p. 3‑9]. On the comparison of hours of trade in other jurisdictions it was acknowledged that due to discernible differences between them they were of no relevance in this matter [Transcript p. 3‑12]. Based on his experience as a Regional Manager, Area Manager, Store Manager and other roles over 20 years he had given evidence of the benefits to other retailers from extended hours accepting he had no experience of Warwick specifically [Transcript pp. 3‑14 to 3‑15].
[21]On the escape expenditure of 30 to 40 per cent out of Warwick on Sundays his evidence had been based on the Dalby case and data he had seen, conceding that data was not before the Commission in this application [Transcript p. 3‑15]. The Dalby store since the introduction of Sunday trade had takings of $17,000 for that day [Transcript p. 3‑15]. England was unable to give specific evidence regarding consultations between store management and staff over extended hours of work [Transcript p. 3‑16]. It was accepted that Sunday penalty rates in the Big W agreement were less than the retail award [Transcript p. 3‑18]. Customer feedback in Dalby had been positive about the extended trading hours [Transcript p. 3‑20]. The figure of 60 hours contained in his evidence had been based on the Dalby experience [Transcript p. 3‑21].
[22]In re‑examination the amount of $17,000 for Sunday trade in Dalby was confirmation of creating employment. Customers utilising online services had to wait up to five days for delivery. The availability of trading hours on a Sunday would outweigh the benefit of staying open weeknights.
Russell ‑ Warwick
[23]Russell the Centre Manager at the Dalby Shopping World gave evidence regarding the circumstances at the centre since the introduction of Sunday trading which included:
· 21 of 38 stores have elected to trade Sundays; and
· customer traffic is currently at 6.3 per cent for Sundays.
[24]It was expected that the additional hours in Warwick would provide extra choice for customers, be beneficial for passing travellers and reduce escape expenditure. The extended hours allowed retailers to spread their fixed costs over a longer period and potentially increase the volume of sales leading to lower average costs.
[25]The participation of anchor tenants was said to be essential in encouraging shoppers which benefited the small stores in the centre with the option to open being voluntary pursuant to the Retail Shop Leases Act 1994. Finally the introduction of increased hours in Dalby had brought about an increase of 264 work hours per week with the major anchor tenants alone.
[26]Under cross‑examination Russell's evidence acknowledged that since the extension of trading hours there were six less retailers in the centre due to closures, retirement and "flat lining" due to reduction in mining construction [Transcript p. 3‑28]. The average foot traffic in the centre on Sundays was around 2,200 people out of a population of 10,000 persons [Transcript p. 3‑30]. Sales had increased in the centre and there was a "fair chance" the same would occur in Warwick if the application was granted [Transcript p. 3‑32]. Russell conceded he had no exit surveys to support his evidence regarding the percentage of tourists and locals that visited the Dalby Centre or whom may visit the Warwick centre on Sundays [Transcript p. 3‑34]. The centres in Warwick and Dalby were both owned by the same company with Russell having worked in Warwick on "two reliefs" in recent years [Transcript p. 3‑36]. On predatory behaviour by national retailers he was unaware of a practice whereby items would be sold for less than cost to force small businesses to close [Transcript p. 3‑38]. There had been a significant drop in centre trade when Woolworths had been closed on Sundays [Transcript p. 3‑39]. Evidence regarding trading hours restrictions having a negative impact on centres had been based on the Dalby experience [Transcript p. 3‑41]. The small retailers in the Dalby centre had increased their hours since the introduction of Sunday trade although he was unable to identify the quantum. On the 264 increased hours for the "majors" that information had been provided by the NRA [Transcript p. 3‑43]. Russell accepted that an increase in hours worked in Dalby did not guarantee such an increase in Warwick [Transcript p. 3‑44].
[27]In re‑examination Russell gave evidence of the businesses that had exited the centre and the reasons for the closures including:
· business in administration (Dick Smith);
· online shopping effect on businesses; and
· simply choosing to not renew a lease.
The growth experienced in Dalby of 5.5 per cent year on year was said to be "great". The Dalby experience with customer behaviour based on his experience would be the same in Warwick.
Gard ‑ Warwick
[28]Gard, the Centre Manager at Rose City Shopping World in Warwick, gave evidence that if the application was granted to enable the non‑exempt stores to trade it would draw more customers to the area providing a positive benefit for all businesses in Warwick. Benefits from increased hours of trade were said to include:
· encourage travellers and tourists to stop in Warwick;
· prevent escape expenditure from Warwick to Toowoomba; and
· give customers choice and convenience.
As Centre Manager he had observed a "significant drop" in trade when the Woolworths store was closed on Sundays which had a negative effect on adjusting to the needs of customers and caused a decline in retailing efficiency. The extension of hours would allow retailers to spread their fixed costs over a longer period and with lower unit costs benefiting consumers with a wider range of offerings. In two Sundays in the lead up to Christmas in 2016 the centre had attracted 6,000 customers.
[29]The larger businesses act as anchor tenants in centres which is essential in producing foot traffic for the smaller retailers and restriction on anchor tenant hours can affect the profitability of smaller retailers. There would be no obligation on smaller tenants to open if the application was granted and it was likely that extended trading hours would be a positive move for boosting employment in the area.
[30]Under cross‑examination Gard refuted the claim that the centre would receive additional rent payments if the centre was to open Sundays and only tenants with "turnover rent leases" would make additional payments [Transcript p. 3‑48]. Based on 20 years' experience in shopping centres it was his experience that when major tenants were open they attracted customers to the centre that benefited other tenants [Transcript p. 3‑49]. Centre CCTV cameras show persons regularly seeking to enter the centre through the automatic doors on Sundays usually in excess of 20 persons each time [Transcript pp. 3‑49 to 3‑50]. On the occasion of the Jumpers and Jazz Festival there are expectations of a transient population in excess of 20,000 people with the event run over a week and two weekends [Transcript p. 3‑51]. On escape expenditure Gard gave evidence of discussions with customers about this issue however was unable to present any formal records [Transcript p. 3‑52]. Toowoomba it was acknowledged, that due to population differences, offered more retail diversity [Transcript p. 3‑53].
[31]At the present time there were "very limited" shops allowed to open on a Sunday in Warwick, being grocery stores and hardware [Transcript p. 3‑54]. Complaints are received by the centre each year (five or six a year) regarding the non‑opening of the centre on Sundays [Transcript p. 3‑54]. On the matter of traffic congestion the shopping centre provides the main parking in the Warwick CBD and when events are held in the town the carpark is opened up so as to allow the Council to use the underground car park to alleviate congestion [Transcript p. 3‑56]. The failure to open Sundays has resulted in the wastage of product due to "use by dates" expiring leading to relative inefficiencies [Transcript p. 3‑58]. Businesses would benefit from extended trading hours as their fixed costs could be spread across seven days rather than six [Transcript p. 3‑59]. On the two Sundays before Christmas 2016 when the centre opened a total of 6,000 customers were recorded entering the centre by electronic door counters [Transcript p. 3‑59].
[32]In regards to events such as the Jumpers and Jazz Festival and the Rodeo there were large influxes of people (similar to Christmas numbers) that would visit the centre if it was open on Sundays [Transcript p. 3‑60]. Entertainment and displays are also held in the centre which would benefit food operators in the centre if it was open on Sundays [Transcript p. 3‑61]. As a member of the Chamber of Commerce he was aware of comments from members about people sticking around when the centre was open with increased traffic drawn to the CBD [Transcript p. 3‑62]. The Council had stipulated as a condition of the centres redevelopment that another entrance on the street level of the main street be included to help expand the section of CBD that is receiving increased traffic [Transcript p. 3‑62]. On the impact of extended hours upon IGA in Warwick he was aware research had shown that "normally people won't change their shopping habits in regards to where they're buying their, you know, food from a supermarket" [Transcript p. 3‑62]. If the application was granted Gard expected the impact on employment would be positive [Transcript p. 3‑65].
Templeman ‑ Warwick
[33]Templeman, the Manager of Economic Development and Tourism for the Southern Downs Regional Council, gave evidence in both the Warwick and Stanthorpe applications. He described the region as covering 7,122 m2, boasting a vibrant rural lifestyle with major centres including:
· Warwick;
· Allora;
· Killarney; and
· Stanthorpe.
The Council had resolved to support both applications at a General Council Meeting held on 23 June 2016 by way of the following resolution:
"THAT Council support the National Retail Association's application to the Queensland Industrial Relations Commission seeking approval for major non‑exempt retailers to trade on Sundays in Warwick and Stanthorpe Principal Centres between the hours of 9 am and 6 pm."
[34]The Council had formed the view the extended hours would:
· help create more shifts for workers with major retailers;
· offer opportunities for local small businesses to prosper; and
· smaller retailers would be swept along with the majors and may have the option of providing more work.
[35]The Southern Downs is an accessible and affordable short stay destination with data from the Council's Visitor's Information Centres suggesting that a large percentage of visitors and tourists come from the South-East Queensland region and with the expectation of the Queensland Government that the population will increase by two million by the year 2041. An assumption can be drawn that there will be more residents, tourists and visitors to the Southern Downs. The Visitor's Information Centre served almost 16,000 people in the 2016 calendar year and whilst there is no data as to the percentage of visitors that represented, the Council believed it was approximately ten per cent of visitors which would have the visitor's numbers for the year at around 160,000.
[36]Visitors are attracted to Warwick for specific events that includes:
· Jumpers and Jazz;
· Leyburn Sprints;
· Warwick Rodeo; and
· various events at the motor racing precinct.
[37]The Council is currently preparing a new Economic Development Strategy and Tourist Strategy to build on the Region's strengths and natural assets to attract more investment, jobs and visitors. Community and visitor expectations requires increased access to a larger range of retail services for residents and visitors. The Council is conscious that the extension of trading hours needs to benefit all stakeholders and is endeavouring to ensure that there is no disadvantage caused by this application. Residents and tourists will benefit from increased flexibility and convenience if there were to be an extension of hours including many residents who are shift workers or work in other centres. A reduction in spending leakage to the nearby city of Toowoomba would be a further benefit providing an economic boost to local retail shops.
Templeman ‑ Stanthorpe
[38]Templeman's evidence at times for the Stanthorpe application reflected that given in support of the Warwick application and as such those aspects of his evidence will not be reproduced. Some traders in Stanthorpe had indicated that as a result of Aldi and Woolworths opening in the town their Saturday trade had increased and were confident of a further increases on Sundays.
[39]In the 2016 calendar year the Stanthorpe Visitor Information Centre served nearly 24,000 people and based upon a similar forecast as with the Warwick application would equate to 240,000 visitors over the calendar year to a town with a resident population of approximately 7,000 people. The majority of tourists and visitors to the area emanate from South‑East Queensland and northern New South Wales, areas that have had extended trading hours for a considerable number of years and the Council was concerned that visitors to the region not having access to similar arrangements may mean they do not return, thereby damaging the overall economy. Visitors to the Stanthorpe region tend to look to experience the cold conditions and in doing so seek food and beverage experiences.
[40]Increased access to a larger range of retail services for residents and tourists would assist with customer demands of looking for convenient shopping options and prevent the need to travel outside the town on Sundays.
[41]In a response to questioning from the Commission regarding the decision of the Council to support Sunday trading but failing to provide support for such trading on certain public holidays it was the evidence of Templeman that he had been instructed by Council "to support the extended trading hours, including public holidays".
[42]Under cross‑examination Templeman confirmed his role as Manager of Economic Development and Tourism and that he was authorised to give evidence on behalf of the Council [Transcript p. 3‑70]. He identified the main attractions to the Southern Downs region as:
· communities of interest;
· national parks;
· townships; and
· waterways. [Transcript p. 3‑71]
The two visitor information centres fall under his control and from time‑to‑time he had been advised by the volunteers whom work in the centres that visitors to the region comment about the shops not being open on Sundays [Transcript p. 3‑71]. Additionally a number of people had spoken to him about improving the offer to visitors by having shops open on Sundays. He conceded he was not in possession of verifiable evidence regarding these conversations [Transcript p. 3‑72].
[43]Whilst he was not present at the Council meeting which resolved to support the extended hours application he gave evidence that the normal Council process involved a consultation period prior to matters going before the Council with there then being a vote. From his reading of the Council minutes as a professional Council officer he concluded that there had been no division with the resolution being carried unanimously [Transcript pp. 3‑72 to 3‑73]. He was unable to give direct evidence in relation to the consultation process [Transcript p. 3‑73]. As a professional economic development practitioner it had been his experience that when major retailers are open it actually draws more foot traffic into town and the smaller stores benefit [Transcript p. 3‑73]. Templeman found it "difficult to believe" that businesses would be giving evidence that they would lose business if the application was granted because with more foot traffic in town there would be more people to take advantage of their offering as well [Transcript p. 3‑74].
[44]The Council was "very keen" to support the application as to not be in step with the rest of South‑East Queensland and northern New South Wales would jeopardise the local community and the amount of new jobs that can be created for people who are quite often young and underemployed. In attracting more visitors to the area it would benefit local crafts, arts, coffee shops, food and beverage offerings [Transcript p. 3‑76]. In Stanthorpe he had spoken to people who had businesses in the main street who had told him they believed extended trading hours would help their businesses [Transcript p. 3‑79]. The assumption that 10 per cent of all visitors went through the visitor information centres was based on Australian Government statistics regarding visitors to the region in 2015 [Transcript p. 3‑80]. Templeman gave evidence that currently retailers in Stanthorpe open into the early afternoon on Saturdays whilst the retailers in Warwick (Big W) go for a "little bit longer" [Transcript p. 3‑82].
[45]On the tourist aspect Templeman gave evidence that a facility (Morgan Park) hosted motor sports or equestrian events 50 weeks of the year attracting visitors to Warwick who would like to take advantage of what's happening in the town but are unable to do so due to the non‑trade on Sundays [Transcript p. 3‑83]. With regards to the evidence‑in‑chief about shift workers there was a meatworks in Warwick that employs more than 650 workers operating an early and late shift as well as a number of feedlots and animal activities that employ a few hundred people with some doing strange hours [Transcript p. 3‑87].
[46]In re‑examination it was reiterated that Toowoomba had more retail diversity than Warwick and Stanthorpe however the Southern Downs Council were seeking to attract other national retailers to the area. In previous roles with local government economic investment over a 10 year period he had been successful in attracting about $500 million worth of investment helping to create thousands of jobs in those areas.
Watson ‑ Pittsworth
[47]Watson a representative of the ownership entity of Pittsworth Plaza which he and a partner had developed and owned since 2007. Woolworths and most of the other tenants currently trade 8.00 am to 9.00 pm Monday to Friday and 8.00 am to 5.00 pm on Saturdays.
[48]In support of the NRA application he gave evidence of his business being impacted by passing travellers, tourist trade and the changing needs of local customers. Without a "major" being open on a Sunday there was no reason to stop at the centre and worse still it could lead to escape expenditure to nearby places such as Toowoomba who have had Sunday trading for many years. Additional hours would give extra choice to their customers, remove inconvenience and congestion costs.
[49]Trading hours restrictions can have a negative impact by removing the ability of centres to adjust to the needs of customers and causes a decline in retail efficiency which is of concern to both property owners and retailers who lease space in the shopping centre environment. An increase in shopping hours would have the benefit of:
· spreading fixed costs over a longer period;
· increased volume of sales;
· lower operational costs; and
· wider range of offerings.
A strong anchor tenant such as Woolworths encourages more shopping to a retail property and assist specialty tenants with their trade and sales. Small businesses are generally not in competition with anchor tenants and often suffer financial harm by having to absorb 100 per cent of the operating costs a centre if they open and the anchor tenant is unable to open.
[50]If the application was granted it would be up to the tenants as to when they open as there is no contractual obligations on any small store in the centre to extend hours when non‑exempt stores are granted extended hours. Extended hours of trade would be a positive move for boosting employment in the area.
[51]Under cross‑examination Watson confirmed he owned the Pittsworth Plaza in partnership with an investor, resides in Brisbane and visits Pittsworth quarterly. The partnership developed the property which opened in 2007 and housed seven tenants including a Woolworths store [Transcript p. 4‑4]. The centre is the largest commercial property in Pittsworth in terms of value [Transcript p. 4‑5]. The evidence on the businesses being impacted by passing travellers and tourist trade came from anecdotal evidence provided by other tenants in Pittsworth [Transcript p. 4‑5]. There was similar anecdotal evidence about the introduction of Pittsworth Plaza having brought people into the town in numbers never seen before [Transcript p. 4‑7]. In a survey conducted by Dr Mortimer some 62 per cent of those surveyed wanted Woolworths to open on Sundays [Transcript p. 4‑7].
[52]Watson understood that Toowoomba offered more retail diversity than Pittsworth and accepted that Pittsworth residents would travel to Toowoomba for reasons other than grocery shopping [Transcript p. 4‑9] and likely would continue to do so for items such as fashion even if the application was approved [Transcript p. 4‑10]. Watson accepted that based on Dr Mortimer's survey that escape expenditure had reduced which he attributed to the arrival of Woolworths in Pittsworth [Transcript p. 4‑10]. In terms of the reference to "congestion costs" in his earlier evidence that was a reference to "fuel costs" [Transcript p. 4‑12]. If Woolworths were able to open on Sundays it would be a catalyst for businesses such as the coffee shop and bakery to open [Transcript p. 4‑16]. If Woolworths opened on Sunday he opined that it would benefit the community by bringing more people to town, in particularly the businesses located in his centre [Transcript p. 4‑18]. When the centre opened in Pittsworth some 80‑odd jobs were created with the Pittsworth Plaza precinct being one of the biggest employers in the district [Transcript p. 4‑21].
[53]In re‑examination Watson did not consider himself to be a local business owner but was an investor in Pittsworth. Through their property management, local cleaning and maintenance contractors are engaged.
Winzenberg ‑ Warwick
[54]Winzenberg a Store Manager for Target Australia Pty Ltd, having previously held positions of District Manager in Queensland and Victoria, gave evidence in both the Warwick and Stanthorpe applications which in some cases was identical in affidavits tendered in the proceedings.
[55]Currently there are 183 Target stores operating in Australia in addition to 125 Target Country stores which provide a more limited range of Target merchandise. He was authorised by Target to give evidence in support of both applications. The store in Warwick is a Target Country store 1,708m2 in size located 80 kilometres from Toowoomba. The clear majority of Target stores trade on Sundays, typically between 9.00 am and 5.00 pm or at the least 10.00 am to 4.00 pm. Target employs approximately 23,000 team members nationally and 2,200 in South East Queensland.
[56]Tourism is a key consideration in this application and it is desirable that retailers be given the flexibility to match their trading hours with demand. A key feature of Queensland's economy and economic growth is tourism and due to Warwick's location there is a high volume of domestic tourist traffic as well as visitors with the visitation peaks occurring on weekends. Tourism is the key income in the local community contributing one dollar to every five generated by travellers and tourists. Retail is a key provider of employment in local communities across Australia and is a major employer in Warwick. In an Australian Bureau of Statistics (ABS) Census of Population and Housing 2011 profile (paragraph 14 of the affidavit) it identified the following retail employment participation information:
· Warwick
-1,175 participants in the workforce
-17 per cent of workforce participants.
· Queensland
-214,617 participants in the workforce
-10.8 per cent of workforce participants.
[57]Over the past five years the following regional Target Country stores commenced trading on Sundays with the percentage of weekly trade for the Sunday as at October 2016 being:
· Biloela ‑ 12 per cent;
· Gladstone ‑ 15 per cent;
· Emerald ‑ 13 per cent;
· Innisfail ‑ 11 per cent;
· Atherton ‑ 10 per cent; and
· Gatton ‑ nine per cent.
In the case of the Biloela store the Sunday trade in 2012 was at 7.5 per cent and the most recent Sunday trade approval in Dalby had trade exceeding 9 per cent within 12 months of commencement.
[58]The introduction of Sunday trade in Warwick would according to Winzenberg achieve a similar percentage level of weekly sales as has occurred in other regional locations and have the following benefits:
· provide extra choice for consumers; and
· convenience for families with children.
Target had customer transaction data (Flybuys) that reflects that 72.5 per cent of sales fall within the 30 minute catchment area of Warwick with the remaining 27.5 per cent coming from beyond the catchment area indicating that there are high proportions of travellers to the region who would expect the stores to be open at times familiar to them.
[59]Escape expenditure to adjacent areas such as Tenterfield and Toowoomba which trades over seven days weakens the performance of the Warwick store meaning less employees in Warwick and less wages paid to local employees. The transaction information show Warwick members making a high number of visits to Toowoomba, averaging seven annual visits.
[60]It is estimated that the introduction of Sunday trade in Warwick would create additional employment and engagement of new employees to cover the additional 25 hours per week required with the additional hours being offered to existing employees on a voluntary basis.
Winzenberg ‑ Stanthorpe
[61]In addition to the generalised evidence given in respect of the Warwick application, Winzenberg gave evidence specific to the Stanthorpe application. The Target Country store in Stanthorpe was 783m2 in size and the only discount department store in Stanthorpe. Tourism was also a feature of Stanthorpe's economy in similar terms to those identified in Warwick.
[62]The ABS Census of Population and Housing 2011 profile (paragraph 14 of the affidavit) identified the following retail employment participation information:
· Stanthorpe
-395 participants in the workforce
-15.9 per cent of workforce participants.
[63]The benefits of the introduction of Sunday trading in Stanthorpe were the same as those identified for Warwick. The customer transaction data for Stanthorpe identified 58.37 per cent of the store sales coming from within the 30 minute catchment area with the remaining 41.7 per cent of sales coming from beyond the catchment area indicating that high proportions of travellers to the region who would expect the stores to open at times familiar to them.
[64]Escape expenditure to Tenterfield is identified in the transaction data at a higher level than Warwick being an average of 12.6 annual visits.
[65]As with the evidence in Warwick an additional 25 hours of employment would be created and filled in the same terms as would occur in Warwick.
[66]Under cross‑examination Winzenberg in elaborating on his previous role as District Manager had the oversite of the Warwick store which had gone from being a 700m2 store to 1,700m2 due to the shopping centre expansion [Transcript p. 4‑29]. Based on information available to Target it appeared that a number of locals in Stanthorpe were employed in the tourism and hospitality industry in what was a "fairly major tourist town" [Transcript p. 4‑32]. At the present time neither Warwick nor Stanthorpe trade all hours available [Transcript p. 4‑32]. Over the last couple of years complaints had been logged on Target's website regarding the failure of both stores not opening on Sundays and there was "a lot of anecdotal evidence" about a fair number of tourists passing through both towns" [Transcript p. 4‑33]. On the evidence that tourism and retail were major employers in Warwick and Stanthorpe respectively being 25 and 26 per cent he had relied upon ABS information [Transcript p. 4‑34]. The information had come from a 2011 report with Winzenberg giving evidence that "in the six years the numbers have probably gone up more than anything" [Transcript p. 4‑34]. The Apple and Grape Festival in Stanthorpe was said to be growing by 30 per cent year on year [Transcript p. 4‑37].
[67]On the information relating to trading at other regional Target Country stores in Queensland the figures quoted went to a distribution of transactions over a week shown as a percentage [Transcript p. 4‑40]. Prior to the granting of Sunday trade in Dalby that store had been identified as a borderline store and was earmarked for closure however that store through Sunday trading survived and 12 team members retained their jobs [Transcript p. 4‑40]. On the use of the Flybuys program by customers the figures nationally identify about 60 per cent of customers partaking in that program [Transcript p. 4‑46]. If Sunday trade was introduced to Stanthorpe, Winzenberg had expectations of employment levels being higher than Dalby because it is such a high tourist town [Transcript p. 4‑49]. Target has an online shopping offer but it was not seen by Winzenberg as having a competitive advantage over other retailers who do not have such a system [Transcript p. 4‑50]. If additional hours were required in the stores Target always offer them to existing employees and if they were not filled then extra staff could be employed [Transcript p. 4‑50]. Winzenberg confirmed that any additional hours created on Sundays would not result in a reduction of employee hours on other days [Transcript p. 4‑52]. In Dalby there was according to Winzenberg a loss of 50 hours of employment in small business but a gain of 200 hours per week with the three "majors" following the introduction of Sunday trade giving a net gain of 150 hours employment per week [Transcript p. 4‑53]. Retail had been tough over the last two years with Target having lost 200 million dollars on the previous year however when Sunday trade commences the whole economy of towns improve [Transcript p. 4‑55].
[68]In re‑examination Winzenberg evidenced that the 200 million dollars lost the previous year was lost from profit. Expectations were that in terms of employment outcomes in Dalby the same would at least happen in the Warwick and Stanthorpe stores given they were significantly bigger than the Dalby store.
Wright ‑ Warwick
[69]Wright, the State Support Manager for Woolworths in Queensland gave evidence in each of the three applications with each affidavit containing generic evidence which was well documented in terms of the Warwick application with such evidence applicable to each of the other two applications.
[70]Woolworths employ more than 121,000 employees across the country with approximately 28,000 employed in Queensland operating 900 supermarkets that service 14 million customers Australia‑wide each week. Woolworths support the three applications to amend the allowable trading hours on Sunday in each location.
[71]Warwick is the administrative centre of the Southern Downs Regional Council with a population of 35,996 (2010) and covering an area of 7,120m2 following the merging of the Stanthorpe and Warwick shires. In Warwick there is a large regional shopping centre precinct in the CBD containing a number of major retailers including:
· Woolworths;
· Big W;
· Target;
· Best and Less; and
· Coles.
Woolworths opened the Warwick store in 1997 and whilst they consider their regional presence offers consumers a superior range of goods in most categories in comparison to other non‑exempt stores their presence is by no means dominant. Most locations across the State trade seven days with only about eight per cent of the 246 Queensland stores not opening on Sunday.
[72]There is a high volume of tourist traffic as well as visitors to Warwick on weekends creating significant additional demand from Friday afternoon to Sunday evening which were good reasons for better consistency of regional Queensland trading hours. A survey conducted by Tourism and Events Queensland in 2012 identified the top activity with domestic tourists as:
· eating out at restaurants ‑ 57 per cent;
· visiting friends or relatives ‑ 47 per cent; and
· shopping for pleasure ‑ 31 per cent.
[73]The Southern Queensland Country Regional Snapshot published for the year ending June 2016 by Tourism and Events Queensland provides a snapshot of key facts regarding tourism in Queensland that included for South‑East Queensland:
· 82.8 per cent of total domestic travel were intrastate visitors; and
· 17.6 per cent were intrastate persons visiting friends.
Tourists from South‑East Queensland in particular were familiar with extended trading hours could become confused and frustrated with the available hours in Warwick.
[74]There were short and long term estimates for projected population growth in the Southern Downs which had been recognised by the Council as part of a long‑term strategic Council plan to attract new residents. Wright relied on the same employment participation data as contained in the evidence of Winzenberg.
[75]Sunday trading had been extended to most of Queensland and Australia in recent decades becoming one of the most important trading days and in some cases the second most important trading day after Saturday. The failure to open on Sundays encouraged consumers to consume more takeaway or restaurant food as opposed to affordable ready‑made meals which feature nutritional information and provide a convenient and nutritious alternative to takeaway.
[76]In December 2016 Woolworths were able to trade on two Sundays in Warwick in the lead up to Christmas which allowed local customers to gain access to non‑exempt retailers and was supported by 2,350 customers on one Sunday alone. Woolworths since 2010 have had a policy of state‑wide uniform pricing which allows people who live in rural and regional areas to pay the same for groceries as those in the cities. In October 2016 the percentage of sales transactions across Queensland for Sunday was at 14.6 per cent and when coupled with the Saturday rate of 15 per cent meant that essentially 30 per cent of sales occur at the weekend.
[77]In the period between December 2007 and December 2015 Woolworth's share of the Australian grocery market had decreased from 40.9 per cent to 37.3 per cent with smaller grocery stores share decreasing from 11.3 per cent to 8.4 per cent which Wright identified the growth of Aldi from 5.5 per cent to 12.1 per cent of the market as the reason for Woolworth's and other's decline. In the same period IGA increased their share from 8.7 per cent to 9.7 per cent (Roy Morgan Single Source [Australia] January 2007 ‑ December 2015). It was basically good policy for all trading hours to apply uniformly and consistently which should neither impose burdens on, non‑exempt or one class of business over another.
[78]There were a number of difficulties in the supply of fresh food for stores such as Warwick (due to location) and these posed more challenges when there was a Sunday closure often resulting in a less than optimal shopping environment for customers. Store Managers have indicated the following operational benefits that Sunday trade would provide:
· reduced congestion at registers;
· efficient utilisation of trolleys;
· customers able to purchase food at supermarket prices;
· tourists benefit from Sunday opening;
· smoothing out peaks in deliveries and improved store replenishment;
· efficiencies in energy usage; and
· convenience stores have a restricted range of products.
[79]In Warwick an additional 100 hours of employment per week would be available if the application was granted with team members electing to work earning in excess of $33 per hour. The current employment mix in Warwick is:
· 126 team members;
· 62 per cent of team members are women;
· 29 per cent of team members are 20 years old or under; and
· 57 per cent of hours are either full‑time or part‑time.
[80]The post impact of the decision to allow Sunday trade in Dalby had the following consequences:
· several team members have obtained 40 hours average of employment per week;
· additional employment was voluntarily taken up by existing team members;
· additional 90 hours employment per week;
· increase of four junior casual positions; and
· 708 additional transactions.
Figures were also made available for other Woolworths stores following the introduction of Sunday trade that included:
· Marion;
· Ipswich CBD; and
· Toowong.
Wright ‑ Stanthorpe
[81]Evidence particular to the Stanthorpe application was given by Wright in addition to the generic evidence regarding the National and State operational details of Woolworths relied upon in his Warwick evidence. Stanthorpe was part of the Southern Downs Regional Council situated 218 kilometres south west of Brisbane and 143 kilometres south of Toowoomba. The shopping offer in the town included major retailers such as Woolworths (since 1981), Aldi and Target. Tourism is a key feature of the area with high volumes of tourist traffic and family visitation throughout the region, peaking on weekends creating significant additional demand between Friday afternoon and Sunday evening. In Stanthorpe 26 per cent of those who participate in the workforce are employed in either the retail or tourist sectors and it is these sectors that have reasonable expectations that services are available during the hours sought in this application.
[82]In December 2016 the Stanthorpe store opened on 11 and 18 December 2016 with 1,625 customers visiting the store on one of the Sundays alone indicating that customers in Stanthorpe regardless of the alternative options have a preference to shop at Woolworths. The operational benefits that come with Sunday trade were same as identified by the store managers for Warwick however in terms of employment the Stanthorpe store would likely engage team members for 75 additional hours of work. The employment mix for the Stanthorpe store was:
· 70 team members;
· 60 per cent of team members are women;
· 17 per cent of team members are 20 years old or under; and
· 70 per cent of hours are either full‑time or part‑time.
Wright ‑ Pittsworth
[83]As with the evidence for the Stanthorpe application the evidence given in the Warwick application of a generic nature was relied upon in this application with additional specific evidence relating to the Pittsworth application.
[84]Pittsworth is located 164 kilometres south west of Brisbane and 41 kilometres south west of Toowoomba. The town of Pittsworth falls under the Toowoomba Regional Council following a merger effected in 2008. The Woolworths store opened in 2007 and services an area that draws on population from neighbouring areas, especially the agricultural sector which contains a contiguous urban residential footprint. The major employment sectors in Pittsworth were also retail and tourism with 26 per cent of workplace participants in these sectors.
[85]In Pittsworth there was support shown for Sunday trading when the Woolworths store opened on 11 and 18 December 2016 with 1,065 customers visiting the store on one Sunday alone. If the application was granted the trade pattern of the current business for Thursday through to Saturday would be spread across Sunday creating a more even spread of trade.
[86]The Woolworths team in Pittsworth currently numbers 55 with the employment mix being:
· 20 per cent of team members are 20 years old or under;
· 80 per cent of team members are women; and
· 52 per cent of hours are full‑time or part‑time.
An additional 65 hours of employment would be available if the application was granted.
[87]Under cross‑examination Wright gave evidence of having worked for Woolworths for 35 years with the last three as State Support Manager [Transcript p. 4‑73]. The business engaged over 3,000 suppliers with Wright identifying a number from the Stanthorpe region [Transcript p. 4‑74]. A renovation of the Warwick store in 2017 would see the installation of seven self‑serve checkouts that will be in addition to eight to ten main registers and three express checkouts [Transcript p. 4‑78]. In each of the locations subject of the application there was no full range supermarket presence [Transcript p. 4‑78]. On average in a 3,000 and 3,500 m2 size store there were around 15,000 items on sale [Transcript p. 4‑79]. The Woolworths offer in Pittsworth was superior to that of the IGA [Transcript p. 4‑79]. Wright's evidence regarding the detrimental effect on tourism by not opening on Sundays had been based on his retail experiences [Transcript p. 4‑81]. Over the past 12 months Woolworths had about 20 complaints (in all) about not opening in the locations subject to the current applications [Transcript p. 4‑82]. He acknowledged the tourist data relied upon by himself was five years old and he had no data that was more recent [Transcript p. 4‑83].
[88]Shopping in supermarkets was not considered by Wright as shopping for pleasure however the supermarket is a draw card which allow customers to visit other retailers such as fashion outlets which he described as "certainly pleasurable" [Transcript p. 4‑84]. Wright acknowledged a difference in density levels between the various states of Australia which have slightly different retail markets [Transcript p. 4‑89]. Each of the stores in the three locations offered an online shopping service [Transcript p. 4‑89] however Wright was unable to confirm or otherwise whether deliveries could be made on a Sunday [Transcript p. 4‑90]. Wright was taken to a report which had shown a decline in domestic tourists in Southern Queensland country and a further decline of 10.2 per cent for international tourists which Wright acknowledged was the case but the tourist numbers had increased over a "period of time" [Transcript p. 4‑95]. The assistance to cafes and restaurants from increased hours of supermarket trade had been identified by Wright from his experiences when Woolworths had previously opened stores for longer hours [Transcript p. 4‑95]. On the material relied upon in terms of population growth it was conceded it covered a wider area than just Warwick, Stanthorpe and Pittsworth [Transcript p. 4‑97].
[89]Customer choice was restricted when regulated trading hours prevented them from buying goods from the store of choice, an example of which was that Woolworths sell barbequed chickens for $8.00 whilst the IGA in Pittsworth had the same item for $10.00 or $12.00 [Transcript p. 4‑104]. Wright did not accept the proposition that IGA supermarkets "price matched" Woolworths suggesting that may occur on 2,000 out of 14,000 items [Transcript p. 4‑106]. The significance of Sunday trade figures was known to Wright due to seeing the "numbers" across the State on a weekly basis [Transcript p. 4‑109]. The escape expenditure for Warwick and Pittsworth (which had been identified by rewards card activity) to Toowoomba was said by Wright to be "quite alarming" [Transcript p. 4‑112]. The evidence on escape expenditure to Toowoomba from Warwick was not about a "majority" of residents but a "good proportion of residents" [Transcript p. 4‑114].
[90]The numbers of customers that visited all stores (subject of the applications) on 11 and 18 December 2016 identified in his evidence were a combination of both days [Transcript p. 4‑115] and rather than actual customer numbers were in fact "transaction" numbers [Transcript p. 4‑115]. On those particular days sales in Toowoomba stores were down compared to the previous weeks [Transcript p. 4‑116]. Raw figures for stores that commenced Sunday trading show an overall increase in customer numbers of five per cent [Transcript p. 4‑119]. In places like Stanthorpe and Warwick congestion in stores and the traffic are not good on Saturdays and in the case of Easter Saturday quite chaotic and quite dangerous due to no Sunday or Public Holiday trade [Transcript p. 4‑121]. Deliveries are made to stores open on Sundays in regional towns on that same day however that is not the case for stores that do not open. Also due to stores not being open on Sundays items such as meat and seafood are often dumped [Transcript p. 4‑124]. Sunday work is generally sought after because of the penalty rates that apply [Transcript p. 4‑125] which provides an extra 50 per cent loading [Transcript p. 4‑126]. Woolworth's stores at a local level have the authority to make donations to community organisations [Transcript p. 4‑131]. Stanthorpe had given $22,000 towards the hospital [Transcript p. 4‑133].
[91]In re‑examination Wright was taken to the $33.00 per hour rate for Sunday work and gave evidence that employees in Warwick, Stanthorpe and Pittsworth were currently paid "zero" on Sundays because they were unable to work on that day.
Vorrasi ‑ Warwick
[92]Vorrasi, the State Finance Manager for Coles in Queensland was authorised by Coles to give evidence in support of the application for Warwick. The business operates at a national level with more than 2,380 outlets that include supermarkets, convenience stores and liquor retail stores with Coles employing 102,000 team members nationally and more than 15,000 in Queensland. Coles have invested approximately $5.6 million of capital into a new store in Warwick which is due to open for trade in the second half of 2017 with the potential to employ up to 100 team members injecting 1,500 hours of work per week into the local economy. Employees of the Bi‑Lo store that ceased operating previously will be offered positions with the new Warwick store prior to opening.
[93]Warwick plays host to tourists and travellers all of whom would need access to the same retail shopping options as they would at home with restricted trading hours imposing limitations on these categories of visitors. The Southern Queensland Country Regional Snapshot published by the Department of Tourism and Events Queensland for the year ending June 2016 identified that intrastate travel had increased in the region by 17.6 per cent. Additionally there were predictions of population growth in the Southern Downs region by 2 per cent per annum until 2036 on data from the Queensland Government Statisticians Office.
[94]Coles stores data in Queensland for the weeks commencing October 2016 suggests the highest proportion of sales transactions occur on the weekend with 14.9 per cent and 16 per cent occurring on a Saturday and Sunday respectively with essentially one third of weekly sales occurring on the weekend. Coles in Dalby was able to commence Sunday trade in May 2015 with that portion of trade currently 9.8 per cent of weekly trade. There exists a state‑wide policy of uniform pricing (since January 2010) which allows Coles customers in rural and regional Queensland access to goods at city prices.
[95]Flybuys loyalty data shows that Warwick members have made purchases (52 per cent of card holders) from the following Toowoomba stores in October/November 2016:
· Toowoomba Plaza;
· Toowoomba Central;
· Clifford Gardens;
· Willsington; and
· Toowoomba North.
Additionally loyalty information from the previous year indicated 296 Warwick households shopped in Toowoomba for the corresponding period suggesting if shopping in Warwick on Sundays was an option then customers may not wish to travel to Toowoomba.
[96]An additional cost is borne (when closed on Sundays) by retailers (such as Coles) for the removal and reduction in price of all perishable items that includes:
· meat;
· delicatessen;
· fresh produce; and
· bakery.
If the application was granted there would be additional hours of employment generated which would be voluntary for existing team members. It was not expected that there would be any difficulty filling the hours allowing for employment opportunities whereby team members could supplement their income at an increased rate.
[97]Under cross‑examination Vorrasi confirmed that in 2016 Coles in conjunction with team members, customers and suppliers raised $51.7 million for local charities, and disaster relief [Transcript p. 5‑8]. Currently there were only four Coles stores unable to trade in Queensland on Sundays [Transcript p. 5‑9]. It was conceded he had no statistics to support his evidence on how many day trippers visited Warwick [Transcript p. 5‑10]. On the evidence regarding tourist expenditure in the Southern Downs region he had not been aware the figures quoted by him had covered a much wider area that actually included the Toowoomba region, Western Downs, Southern Downs and South Burnett regions, comprising of 33 towns [Transcript p. 5‑12] when Bi‑Lo operated in Warwick it was restricted due to opening only six days a week with some departments having to be shut down completely on the Sundays [Transcript p. 5‑15]. Residents of Warwick are able to access online shopping with Coles from a Toowoomba store [Transcript p. 5‑16]. Throughout Queensland on average Sunday is the busiest trading day of the week [Transcript p. 5‑17]. Customers to a Coles store in Warwick if able to shop on Sundays would also be able to support other retailers in the centre [Transcript p. 5‑19]. Vorrasi was unable to give specific evidence about businesses outside the shopping centre with regards to them not benefiting from Sunday trading [Transcript p. 5‑22]. All work on Sundays would be voluntary for existing team members [Transcript p. 5‑23]. It was acknowledged that his evidence related only to the interests of large retailers and not small or medium retailers [Transcript p. 5‑20].
[98]In re‑examination it was confirmed that when the Bi‑Lo store closed offers of employment in Toowoomba were made to team members. At present 99 per cent of Coles stores nationally were able to trade on Sundays. Online shopping from Warwick residents on Sunday would "presumably" have their goods delivered from Toowoomba on the Monday or Tuesday.
Keogh ‑ Warwick
[99]Keogh the current President of the Warwick Chamber of Commerce Incorporated gave evidence of local businesses being impacted by passing travellers, tourist trade as well as the changing needs of local customers due to major retailers not opening in Warwick on Sundays. Warwick members of the organisation noticed a "definite improvement" in trade when the Rose City Shopping World is open.
[100]Keogh was aware of a survey conducted by the organisation in 2015 that resulted in the following feedback from members:
· broad business support for the extended trading hours application;
· shared understanding that small businesses have no obligation to open;
· 63 per cent of members supported allowing major retailers to open on a Sunday in Warwick;
· only 19 per cent of members surveyed currently open on a Sunday;
· 60 per cent surveyed believed that residents of Warwick should have the same access to shopping hours as Toowoomba and Dalby with Sunday trading;
· 75 per cent of members surveyed were aware that any application for major retailers to open would not require any other retailer to open;
· 57 per cent of members surveyed believed Sunday trade would result in increased employment in retail shops and tourism related businesses in the region; and
· 60 per cent of members surveyed believed that Sunday trading would make Warwick a more attractive place to potential residents and businesses.
[101]Under cross‑examination Keogh, a long term resident of Warwick ("on and off for 46 years") assumed the role of President of the Chamber of Commerce on 5 December 2016. In 2016 the membership totalled 53 members and if all memberships were renewed in 2017 that number would increase to 64 members [Transcript p. 5‑33]. Keogh had not been involved in the survey of 2015 and had relied upon historical documentation for her evidence having no direct knowledge of the conduct of the survey or the proportion of members that participated in the survey [Transcript p. 5‑34]. The survey in her view appeared to be "either a yes or a no response" document [Transcript p. 5‑34]. With regards to tourism, as a resident of long standing in Warwick, Keogh identified a major increase in tourism in the town in the form of:
· high standard of motor sports;
· high standard of equestrian events; and
· operational steam train that operates regularly on weekends.
In addition the Granite Belt region is well known for wine, food and hiking [Transcript pp. 5‑34 to 5‑35]. Membership of the organisation in terms of the retail industry was stable at approximately 15 per cent [Transcript p. 5‑37]. Keogh reaffirmed there was no other documentation available to her regarding the survey [Transcript p. 5‑40].
[102]In re‑examination Keogh's evidence regarding support for the application came from general meetings of the Chamber of Commerce in the preceding year, all of which were advertised to all members electronically.
Le ‑ Pittsworth
[103]Le the Sole Director of Pittsworth 7 Day Pharmacy in Pittsworth supported the application to allow Sunday trading and trade on selected Public Holidays. The Pharmacy in addition to weekday trade also opens between 8.30 am and 12.30 pm on Sundays having agreed to requests from local customers. From extremely low figures the Sunday numbers had increased over time. The store which is situated in the same centre as the Woolworths store regularly fielded queries from customers about whether Woolworths had plans to open on Sundays. The business is impacted by passing travellers as well as the needs of local customers and without the majors open the town may be seen as one not to stop in or worse, travel to neighbouring towns to make purchases. If Woolworths were open on Sundays there would be an improvement in the trade for the pharmacy and would positively boost employment in the area.
[104]Under cross‑examination Le detailed his working arrangements being that of three or four days a week at the Pittsworth Pharmacy which included Sundays [Transcript p. 5‑44]. About once or twice a week someone would inquire about Woolworths' opening hours [Transcript p. 5‑44]. Customers include locals, residents of a nearby town (Millmerran) and travellers [Transcript p. 5‑45]. When Woolworths could trade on Sundays in the pre‑Christmas period his sales were two to three times greater with Le accepting that customers "shop more" before Christmas [Transcript p. 5‑46].
[105]In re‑examination Le evidenced that if Sunday trade was as good as Saturday trade it could lead to the increase of existing staff hours to meet the demand for service.
McCosker ‑ Warwick
[106]McCosker was the owner/manager of the Red Rooster store in the Rose City Shopping World who supported the application to extend trading for non‑exempt stores on Sundays and selected Public Holidays. His business was impacted by passing travellers, changing needs of local customers and there would be a definite improvement in trade if the application was granted and also a positive boost for employment in the area. Upon approval of the application he may open the store from 9.30 am due to Woolworths and Coles drawing more customers in the area.
McCosker ‑ Stanthorpe
[107]McCosker the Owner/Manager of the Red Rooster store in Stanthorpe gave the same evidence in this application as for Warwick with the exception of the trading hours in Stanthorpe which currently include the store opening on Sundays from 9.30 am to 9.00 pm.
[108]Under cross‑examination McCosker indicated that he also operated another Red Rooster store in Warwick that was situated on the highway [Transcript p. 5‑51]. McCosker did not accept the proposition that if Woolworths and Coles opened in Warwick on Sundays it would mean increased competition for his business because they also sell hot chickens [Transcript p. 5‑52]. Saturdays were said to be "awesome for us because everything ‑ everything's open" [Transcript p. 5‑53]. Whilst he had not carried out any studies or read reports that Woolworths or Coles by opening on Sundays would attract more people to town, it was his understanding that the Dalby store which was situated three blocks from the shopping centre had increased sales on Sundays [Transcript p. 5‑53]. In accepting that the IGA may suffer a loss in business if the application was approved it was his evidence that "the majority of the town will pick up" [Transcript p. 5‑54].
[109]In re‑examination McCosker again indicated lack of concern at Woolworths or Coles selling barbeque chickens "because they do it every other day of the week anyway". If Rose City Shopping World opened on Sundays it would benefit his business because at present his rent covers that day and the store is not open.
Mortimer ‑ Warwick, Stanthorpe and Pittsworth
[110]Mortimer an Associate Professor at the Business School at the Queensland University of Technology (QUT) in Brisbane was the holder of the following qualifications:
· Bachelor Degree with Majors in Marketing and Retail Operations;
· a postgraduate Honours Degree in Consumer Behaviour;
· a Doctor of Philosophy ‑ Supermarket Shopping Behaviour; and
· a Graduate Certificate.
Mortimer is an active researcher in the areas of:
· food retailing;
· retail operations and shopping behaviour; and
· consumer behaviour in food, retailing and shopping.
In addition he had published and presented numerous academic and industry papers in the area of retailing and shopping behaviour.
[111]The NRA had requested research be undertaken in relation to the three applications before the Commission for the purposes of providing a "voice for the community" on support for or opposition against the proposed changes to the trading hours.
[112]The research team for each of the three reports were:
· Mortimer;
· Dr Kathleen Chell (Chell); and
· PhD candidates ‑ Hussain Akareem (Akareem) and Kara Burns (Burns).
All team members were fully trained at a PhD level in data collection and analysis with Chell and Burns having been involved in the collection of data for Dalby and Mt Isa for similar NRA projects.
[113]Prior to commencing the research an application was made to the Office of Research Ethics and Integrity ‑ QUT which ensured the research team complied with the principles of the QUT Code of Conduct for Research, the Australian Code for the Responsible Conduct of Research (2007) and the Singapore Statement of Research Integrity.
Mortimer ‑ Warwick
[114]Data was collected in Warwick between Thursday 22 September and Sunday 25 September [2016] between the hours of 8.00 am to 6.00 pm and 9.00 am to 11.00 am on the Sunday. To limit biased responses, respondents to the survey were not approached inside any retail stores. Approaches were made to persons within the Warwick Plaza Shopping Centre, the car park surrounding and under the centre and high street shopping areas.
[115]On being approached, potential respondents were read the following:
"Hello, my name is _____, and I am conducting a survey on behalf of QUT business school for a research project. The project is funded by the National Retail Association, which has made an application asking that all retailers in Warwick be able to trade on Sunday and some Public Holidays. The purpose of this project, therefore, is to identify preferred shopping hours for Warwick shoppers. Would you mind if I asked you a few questions to assist with this research?"
[116]Respondents were considered valid if they were over 18 years of age, lived locally, were not a visitor/tourist and were the main grocery buyer. Researchers were conscious of biases that take place in projects of this kind and in finalising the survey a number of respondents were removed.
[117]Relevant information from the survey included:
· 547 respondents approached;
· 317 respondents made up the final valid sample;
· employing ABS statistics the sample provided a strong representation of the Warwick population in terms of:
-gender;
-age;
-employment; and
-household composition;
· respondents shopped across multiple retailers and supermarkets regularly;
· 83 per cent of respondents indicated no intention to change where they shopped if changes were made to existing hours. For grocery stores and supermarkets the response was 87 per cent;
· 94 per cent of respondents travelled by car to visit stores;
· 40 per cent of respondents indicated they had at some stage travelled outside of Warwick to shop on Sundays. Frequency of travel was not captured however qualitative data indicated travelling outside of Warwick was not done frequently;
· 61 per cent of respondents would "come into town" on Sunday if more stores were open;
· 71 per cent of respondents indicated no foreseeable barriers that would prevent them shopping on a Sunday if all stores were open;
· 75 per cent of respondents supported changes to existing trading hours which meant all retailers in Warwick could trade on Sundays and some Public Holidays;
· 22 per cent of respondents opposed such changes whilst three per cent of respondents claimed to be unsure;
· the key reasons in support of change were:
-potential creation of more causal and part‑time jobs;
-more choice;
-greater convenience; and
-extra foot traffic would benefit incumbent retailers currently trading on Sundays;
· those opposed to change did so for reasons that included:
-concern for smaller incumbent retailers being negatively impacted;
-sufficient hours were already in place; and
-workers would be forced to work on Sundays.
Mortimer ‑ Stanthorpe
[118]The modus operandi for the Stanthorpe Survey Report was identical to that relied upon in the Warwick survey. Data was collected in Stanthorpe between Thursday 15 September and Sunday 18 September [2016] between the hours of 8.00 am to 6.00 pm and 9.00 am to 11.00 am on the Sunday.
[119]Information arising from the survey included:
· 395 respondents approached;
· 201 respondent made up the final valid sample;
· respondent's shopped across multiple retailers and supermarkets;
· 80 per cent of respondents indicated no intention to change where they shopped if changes were made to existing hours. For grocery stores and supermarkets the response was 86 per cent;
· 86 per cent of respondents travelled by car to visit stores;
· 25 per cent of respondents indicated they had at some stage travelled outside of Stanthorpe to shop on Sunday. Frequency of travel was not captured however qualitative data indicated travelling outside of Stanthorpe was not done frequently;
· 32 per cent of respondents indicated they had "put off" coming into Stanthorpe to shop on a Sunday;
· 70 per cent of respondents indicated they would "come into town" on Sunday if more stores were open;
· 81 per cent of respondents indicated no foreseeable barriers that would prevent them shopping on a Sunday if all stores were open;
· 68 per cent of respondents supported changes to existing trading hours which meant all retailers in Stanthorpe could trade on Sunday and some Public Holidays;
· 26 per cent of respondents opposed such changes whilst six per cent claimed to be unsure; and
· concerns from those who supported and opposed the application were the same as those identified in the Warwick matter.
Mortimer ‑ Pittsworth
[120]The Pittsworth survey mirrored the surveys in Warwick and Stanthorpe. Data was collected in Pittsworth between Thursday 8 September and Sunday 11 September [2016] between the hours of 8.00 am to 6.00 pm and 9.00 am to 11.00 am on the Sunday.
[121]Information arising from the survey included:
· 417 respondents approached;
· 266 respondents made up the final valid sample;
· respondents shopped across multiple retailers and supermarkets regularly;
· 83 per cent of respondents indicated no intention to change where they shopped if changes were made to existing hours. For grocery stores and supermarkets the response was 91 per cent;
· 87 per cent of respondents travelled by car to visit stores;
· 20 per cent of respondents indicated they had at some stage travelled outside of Pittsworth to shop on a Sunday. Frequency of travel was not captured however qualitative data indicated travelling outside of Pittsworth was not done frequently;
· 66 per cent of respondents would "come into town" on Sunday if more stores were open;
· 79 per cent of respondents indicated no foreseeable barriers that would prevent them shopping on a Sunday if all stores were open;
· 61 per cent of respondents supported changes to existing trading hours which meant all retailers in Pittsworth could trade on Sundays and some selected Public Holidays;
· 29 per cent of respondents opposed such changes whilst 10 per cent of respondents claimed to be unsure; and
· concerns from those who supported and opposed the application were the same as those identified in the Warwick and Stanthorpe matters.
[122]Under cross‑examination Mortimer indicated in his previous work history he had been in the employ of Coles (10 years), Big W (five years) and Kmart (two years) [Transcript p. 5‑61]. All participants involved in the survey were given a QUT Participant Information for QUT Research Project ‑ Questionnaire [Transcript p. 5‑61]. Mortimer was confident with the sample numbers providing reliable information due to the participants being local rather than the same numbers at a national level [Transcript p. 5‑62]. The exclusion of visitors from participation in the surveys did not invalidate the sample as a voice for that commentary [Transcript pp. 5‑62 and 5‑63]. A number of questions were put regarding ABS statistics relied upon in the surveys where Mortimer stated that in his opinion the sample collected in Stanthorpe reflected the demography of the town "but it won't line up 100 per cent [Transcript p. 5‑65]. Claims that the survey in Stanthorpe was skewed towards female gender, the evidence was that the participants were those who did the primary grocery shop. The same applied to the other two surveys [Transcript p. 5‑66].
"After considering the major related issues, Queenslander's (outside the BCC) provisionally support extended trading hours for larger retailers by a slim margin of 53% to 42%".
Whilst there were said to be certain conditions and caveats regarding this support the end result was an 11 per cent gap between those who supported extended hours and those who did not agree with the proposal.
[398]Overall in the absence of direct consumer witness evidence to consider and based upon a plethora of previous decisions of the Commission I find that the extension of trading hours sought by the NRA would if granted benefit consumers of Warwick and it would assist by unifying the hours of trade with regions adjacent to Warwick. Additionally of benefit to consumers would be the ability to have extended options in regards to grocery shopping and a number of other retail wares.
[399]It would be remiss of the Commission not to take into account that on two Sundays in December 2016 when the Rose City Shopping World opened with major retailers able to trade that 6,000 consumers attended the centre over the two days which indicates consumers "voting with their feet".
Small Business
[400]The President (Keogh) of the Warwick Chamber of Commerce gave evidence of local businesses being impacted by passing travellers, tourist trade as well as the changing needs of local customers when major retailers were not open on Sundays and how her organisation noticed a "definite improvement" in trade when Rose City Shopping World was open. Keogh tendered a survey conducted by the organisation of their members in 2015 that found there was:
· broad business support for extended trading hours;
· 63 per cent of members supported major retailers opening on Sundays;
· 60 per cent believed Warwick residents should have the same access to shopping hours as Toowoomba and Dalby; and 57 per cent believed it would result in increased employment in retail and tourism related businesses.
[401]McCosker who operates two Red Rooster franchises in Warwick including one at the Rose City Shopping World supported the application believing it would provide a boost for employment.
[402]Webster, the operator of a small retail outlet in the Warwick CBD opposed the application for reasons that included:
· little demand for trade on Sundays;
· high penalty rates; and
· impost on family time.
[403]The Commission is satisfied in the absence of significant small business evidence opposing the application this criterion should be deemed to not impact negatively in the consideration of the application.
Medium Business
[404]The major opposition to the application was mounted by the Spano Group through the evidence of Spano who operated an IGA in Warwick that employed 35 permanent staff as well as casual staff. This store was part of a conglomerate operated by the group that included four full‑line IGA supermarkets and three other IGAs. Each of the stores operated on the basis of different directors and companies to allow for compliance with legislation regarding non-exempt stores and after showing a degree of reluctance, Spano's evidence was that the group employed around 400 employees overall.
[405]Spano held the view that grocery consumers were not inconvenienced by the closure of non‑exempt stores on Sundays and that his store currently operated at two‑thirds capacity with plans for $3 million worth of refurbishment in their stores. Of the 22,696 items in his store around 2,000 were price matched with Woolworths and Coles. A comparative shop was undertaken on 15 January 2017 in Warwick where it was found for a basket of similar items the cost at Woolworths was $146.85 and the IGA $128.66 being some $18.19 cheaper at the IGA. In December 2016 when non‑exempt stores were able to open the IGA suffered a drop in sales of 50 per cent on each day which would lead to a loss of 40 seven hour shifts if Sunday trade was approved in line with the NRA application. Spano's position was in the main supported by the evidence of Pugsley an employee of the Spano Group.
[406]Deborah Smith who operates a number of independent supermarkets none of which are likely to be directly affected by the outcome of the Warwick application gave evidence based on previously approved applications that independent operators had their weekly turnover reduced between 20 and 50 per cent. The evidence from this witness was hardly of a nature that would allow for it to be accepted as "probative" evidence and was more attuned to that of opinion or hearsay evidence.
[407]The granting of the application is likely to have some level of negative financial impact on the Warwick IGA, if Spano's evidence is to be accepted as credible however that alone is not sufficient for the application to be rejected on this criterion as it must be weighed against consumer choice and the flexibility to access a broader range of retail offerings on a Sunday rather than the restricted practices that exist at present.
Large Business
[408]The non‑exempt stores would clearly benefit from the granting of the application by having an additional day of trade on Sundays and certain Public Holidays and the generation of additional revenue. There were also benefits nominated by NRA witnesses for consumers should the application be granted which were said to include:
· reduced congestion in stores by a redistribution of demand;
· customers in grocery stores are able to make purchases at supermarket prices;
· tourists and visitors are able to shop on Sundays;
· store replenishment improvements;
· better energy usage; and
· fresher products for customers.
[409]This criterion supports favourably the granting of the application.
(f)the alleviation of traffic congestion
[410]There was no evidence of any consequence around this criterion and as such is not enlivened.
(g)the impact of the order on employment
[411]The NRA through witnesses evidence from major non‑exempt retailers projected the following gains in hours of employment:
· Big W ‑ additional 60 hours;
· Target Country ‑ additional 25 hours; and
· Woolworths ‑ additional 100 hours.
[412]Based upon a total of 185 hours per week over 52 weeks, growth in employment hours on a yearly basis would be an additional 9,620 hours of employment. Further with the opening of the Coles store there would likely be additional hours that at present remain unidentified.
[413]Spano gave evidence of a loss of employment hours of 29,320 on an annual basis or 563 hours per week.
[414]In consideration of the evidence I find that the NRA evidence is preferable to that of Spano who appears to have grossly overestimated the loss of employment and despite the opportunity afforded to him to recant his projections he remained steadfast. The figures quoted by him relate to the Stanthorpe and Warwick stores conjointly but are still difficult to accept.
[415]The MGA engaged Carmignani to undertake a survey regarding this application and with his engagement restricted to interviews with IGA owners and managers he offered a finding that the most likely scenario, if the application was granted, would be a "zero‑sum game".
[416]It is not unreasonable to conclude that the position offered on employment growth by NRA witnesses would come to fruition, taking into account the evidence regarding the effect of increased employment where similar applications had previously been granted. The evidence of Winzenberg was that the Dalby Target Country store had been identified as a "borderline" store and earmarked for closure but survived as a consequence of Sunday trading and 12 team members retained the jobs. He acknowledged also that in Dalby small business had as a result of Sunday trade lost 50 hours of employment but with the "majors" gaining 200 hours there was a net gain of 150 hours.
[417]This criterion is therefore viewed positively in respect of the granting of the application.
(h)the view of any local government in whose area the order is likely to have an impact
[418]It is not unusual for local government to either not express a view in terms of applications to extend trading hours or to offer a neutral position whereby they neither support nor oppose an application.
[419]In Re: National Retail Association Limited, Union of Employers[15] (TH/2014/9) Swan DP expressed a view in relation to the local government participation in Trading Hours applications:
"The Mount Isa City Council did not express a view with regard to this Application. It is not mandatory for the Council to participate, but it would be mandatory for the Commission to consider the views of the local Council had those views been put to the Commission. What might have been of assistance is the Council's comments upon the current state of Mt Isa, traversing areas such as population growth, the state of the local economy etc."
[15] Re: National Retail Association Limited, Union of Employers [2015] QIRC 044
[420]The Southern Downs Regional Council supported the application by carrying a resolution at a General Council Meeting on 23 June 2016 that stated:
"Council support the National Retail Association's application to the Queensland Industrial Relations Commission seeking approval for major non‑exempt retailers to trade on Sundays in Warwick and Stanthorpe Principle Centres between the hours of 9 am and 6 pm."
[421]Further the Manager of Economic Development (Templeman) gave evidence that the Council had formed the view extended hours would:
· help create more shifts for workers with major retailers;
· offer opportunities for local small businesses to prosper; and
· smaller retailers would be swept along with the majors and may have the option of providing more work.
[422]He further evidenced that the Council was "very keen" to support the application as to oppose would leave them "out of step" with the rest of South‑East Queensland and northern New South Wales.
[423]The support of the Council for the application is a most positive factor to be considered in the determination of the application.
(i)such matters as the industrial commission considers relevant
[424]The MGA submitted that their witnesses had reservations regarding the extended hours effecting family time and having to pay high penalty rates.
[425]The position at the time of filing the application was that the Warwick IGA was required to pay penalty rates that included a component of double time for Sunday work. In the course of hearing the application, the Fair Work Commission released a decision that would reduce penalty rates in retail for work on Sundays, effectively reducing what an employer would have to pay employees for such work and lessening the gross and net pay for employees.
Note: The date of implementation of the reduction of penalty rates has not at this time been finalised.
[426]There was no material in respect of this criterion that would operate against the granting of this application.
STANTHORPE
Application of s 26 criteria
(a)the locality or part thereof in which the non‑exempt shop or class of non‑exempt shop is situated
[427]The application sought to amend the Order ‑ Schedule 1 by the insertion of the following definition:
"Commencing at the intersection of the New England Highway and Connor St; then by a line in a westerly direction to the intersection of Corundum St and Talc St; then by a line in a southerly direction to the intersection of Bridge St and Kilpa St; then by a line in an easterly direction to the intersection of Wolfram St and Anzac St; then by a line in a northerly direction to the point of commencement."
[428]Stanthorpe is situated 216 kilometres south‑east of Brisbane, 60 kilometres south of Warwick and 56 kilometres to the north of Tenterfield.
[429]Inspections in Stanthorpe identified three grocery supermarkets all within easy walking distance of each other with Woolworths located in a smallish shopping centre that housed a limited number of small retail business. The IGA and Aldi are in "stand alone" locations with all three having what appeared to be adequate parking arrangements. The Target Country store was in a separate location in the town's retail precinct.
[430]The New England highway runs adjacent to Stanthorpe with easy access for those wishing to leave the highway and visit the town.
[431]To the south Tenterfield has access to retail trade on Sundays and Public Holidays as will Warwick in the north from 12 July 2017.
[432]The Commission is of the view that the locality criterion is favourable to the granting of the application due in some respects to there being no evidence to the contrary.
(b) the needs of the tourist industry or other industry in such locality or part;
(c) the needs of an expanding tourist industry.
[433]Templeman gave evidence that the Visitor Information Centre in Stanthorpe in the 2016 calendar year fielded enquires from 24,000 persons and as in the Warwick application he estimated that this number was about 10 per cent of the overall visitors to the town. The Commission adopts the same approach as in the Warwick application being that the 240,000 figure had a deal of speculation attached to it and whilst it was unsound to accept this number it is more likely than not that a substantial number of tourists and others visited Stanthorpe in the previous year.
[434]Wright whilst not a resident of Stanthorpe gave evidence that there was a high volume of tourist traffic throughout the region which caused significant demand for retail services between Friday and Sunday evenings.
[435]Winzenberg, like Wright was not a resident of Stanthorpe attached to his affidavit the "Queensland Regional Profiles. Workforce Profile ‑ people who work in the region ‑ Stanthorpe Statistical Area Level 2" (SA2) which identified as at 2011 the following top five industry subdivisions of employment for workers:
1. Residential care services (8.1 per cent);
2. Preschool and school education (7.9 per cent);
3. Food and Beverages (7.1 per cent);
4. Other store based retailing (6.8 per cent); and
5. Food retailing (6.5 per cent).
It also identified the workforce participation in industry groups which had the top three as:
· Health care and social assistance (19.8 per cent);
· Retail trade (15.9 per cent); and
· Accommodation and food services (10.2 per cent).
The figures indicate that 26.1 per cent of the participating workforce work in either retail, accommodation or food services. Winzenberg in cross‑examination gave evidence in response to tourism numbers where he stated:
"Prestia: In the tourism numbers?
Winzenberg: Yep
Prestia: Okay. So ‑ ‑ ‑
Winzenberg: Particularly given ‑ given the growth in the festivals at places like Stanthorpe. I read some numbers, I think last year, that that Apple and Grape Festival was sort of growing about 30 percent year on year. So that would indicate that the accommodation sector and tourism sector is ‑ is probably a greater number than that.
Prestia:Certainly.
Winzenberg: And ‑ you know ‑ retail and ‑ and the tourism go hand in hand, and we know that." [Transcript p. 4-37]
[436]Templeman in his affidavit of evidence at paragraph 7 stated:
"Visitors to the Southern Downs can be broadly categorized by the destination within the Region they choose. Stanthorpe attracts visitors looking to experience cold conditions. While they are in the Region they seek food and beverage experiences and enjoy activities surrounding the cooler climate. Many of the visitors to the Southern Downs who are attracted to these pursuits also expect to be able to shop as part of their experience. This application will allow the Southern Downs community to offer the extra shopping hours the Region's visitors expect."
[437]Additionally Stanthorpe in terms of the tables at paragraph 382 of this decision would form part of the Southern Queensland Country figures regarding tourist numbers and nights stayed in the region. Further the decline in domestic and international tourism would be equally applicable.
[438]For the purposes of consistency the Southern Queensland Country tourism numbers are significant and support the application as with the Warwick application however less weightage is given in respect of Stanthorpe due to a lack of evidence around specific tourist events.
[439]Consequently on consideration of the evidence before the proceedings I am satisfied that marginally "the needs of the tourism industry" would benefit from the application being granted however as was the case with the Warwick application the "needs of an expanded tourist industry" is not viewed as support for the application at this present time.
(d) the needs of an expanding population
The MGA identified that whilst the annual growth in the Southern Downs and Queensland in the period 2005 to 2015 was 1.1 per cent and 2 per cent respectively Stanthorpe in this period had only grown on an annual basis of 0.3 per cent per year. The MGA acknowledged (as was the case with the Warwick application) that there existed projected modest growth for Stanthorpe through until 2036.
[441]The failure of Target Country to trade all the allowable hours available at present and the evidence that businesses in Stanthorpe had currently the capacity to absorb greater customer numbers within the existing hours worked against the granting of the application according to MGA submissions.
[442]The Commission adopts the previous reasoning recorded at paragraph 388 of this decision.
(e)the public interest, consumers' interest, and business interest (whether small, medium or large)
Public Interest
[443]The Commission adopts the previous content of this decision in paragraphs 389 to 393 (inclusive) which in effect states that the granting of the application would not be against the public interest.
Consumer Interest
[444]The content of paragraph 394 is applicable to the application under consideration and as such is adopted.
[445]The survey carried out on behalf of the NRA by Mortimer and his team approached 395 respondents with 201 making up the final numbers relied upon. Support for changes to the existing trading hours to allow non‑exempt retailers in Stanthorpe to trade on Sundays and some Public Holidays was at 68 per cent of those surveyed. The reasons for support were the same as in the Warwick application:
· potential creation of more casual and part‑time jobs;
· more choice;
· greater convenience; and
· extra foot traffic would benefit incumbent retailers trading on Sundays.
[446]A total of 26 per cent of respondents opposed the application for reasons that included:
· concern for smaller incumbent retailers being negatively impacted;
· sufficient hours already in place; and
· workers would be forced to work Sundays.
[447]The content of paragraphs 397 and 398 of this decision are adopted for the purposes of the application although in respect of paragraph 398 consumers' benefits would be limited to grocery shopping and access to one other retail offer from a major retailer, being the Target Country store. Also in paragraph 398 references to Warwick are deleted and in their place inserted Stanthorpe for this application.
[448]The Woolworths store was allowed to trade on Sundays 11 and 18 December 2016 and according to the evidence of Wright, 1,625 customers visited the store on one of those Sundays.
[449]The consumer interests in Stanthorpe in the view of the Commission would be positively served by the granting of the application.
Small Business
[450]The only evidence of a small business retailer before the proceedings was that of McCosker who operates a Red Rooster franchise in Stanthorpe, in which he supported the granting of the application.
[451]The Commission is satisfied in the absence of any other evidence from small business in opposition to the application that this criterion should be deemed favourable to the granting of the application.
Medium Business
[452]The major opposition to the application was mounted by the Spano Group through the evidence of Spano who operated an IGA in Stanthorpe that employed 30 permanent staff as well as casual staff. This store was part of a conglomerate operated by the group that included four full‑line IGA supermarkets and three other IGAs. Each of the stores operated on the basis of different directors and companies to allow for compliance with legislation regarding non-exempt stores and after showing a degree of reluctance, Spano's evidence was that the group employed around 400 employees overall.
[453]Spano held the view that grocery consumers were not inconvenienced by the closure of non‑exempt stores on Sundays and that his store currently operated at two‑thirds capacity with plans for $3 million worth of refurbishment in their stores. Of the 22,696 items in his store around 2,000 were price matched with Woolworths and Coles. A comparative shop was undertaken on 15 January 2017 in Stanthorpe where it found for a basket of similar items the cost at Woolworths was $192.82 and the IGA $133.10 being some $59.72 cheaper at the IGA. If Sunday trade was introduced in Stanthorpe the estimation was that there would be a 55 per cent drop in trade on Sundays.
[454]Deborah Smith's evidence in the Warwick application was as relevant to this application as it was in the other application (see paragraph 406).
[455]The granting of the application is likely to have some level of negative financial impact on the Stanthorpe IGA, if Spano's evidence is to be accepted as credible however that alone is not sufficient for the application to be rejected on this criterion as it must be weighed against consumer choice and the flexibility to access a broader range of retail offerings on a Sunday rather than the restricted practices that exist at present. Further if the comparative shopping evidence provided by Spano applied genuinely across a range of products it ought to be not only a catalyst to maintain customers but also a means to attract other custom to the IGA store.
Large Business
[456]The Commission adopts the previous content of this decision regarding large business in paragraph 408.
[457]The Commission is satisfied this criterion favourably supports the granting of the application.
(f) the alleviation of traffic congestion
[458]There was no evidence of any consequence around this criterion and as such is not enlivened.
(g) the impact of the order on employment
[459]The NRA through the evidence of witnesses Winzenberg and Wright projected the following gains in hours of employment:
· Target Country ‑ additional 25 hours; and
· Woolworths ‑ additional 75 hours.
[460]Based upon a total of 100 hours per week over 52 weeks, growth in employment hours on a yearly basis would be an additional 5,200 hours of employment.
[461]Spano gave evidence of a combined loss of 29,320 employment hours on an annual basis between the Stanthorpe and Warwick IGAs.
[462]The content of paragraphs 414 and 415 of the decision are adopted in respect of this application.
[463]I accept the evidence of the NRA witnesses with regards to the projection of employment growth if the application was to be granted for the reasons relied upon in the Warwick application (see paragraph 416 of this decision).
[464]The evidence of MGA witness Carmignani of a "zero sum game" in relation to additional and loss of employment had been made on information provided exclusively by IGA owners and managers. However whilst unable to quantify a figure that would reasonably represent the potential losses in Stanthorpe, it is likely there will be some negative outcome regarding employment for the IGA.
[465]I do however on the consideration of the evidence find that there will be limited outcomes with regard to employment growth that supports the granting of this application.
(h) the view of any local government in whose area the order is likely to have an impact
[466]The Commission adopts the content of paragraphs 418 and 423 (inclusive) of this decision as being relevant to the application.
(i) such matters as the industrial commission considers relevant
[467]The Commission adopts the content of paragraphs 424, 425 and 426 of this decision as being relevant to the application, on the proviso of an amendment to paragraph 425 by deleting the reference to "Warwick" and inserting "Stanthorpe".
PITTSWORTH
Application of s 26 criteria
(a)the locality or part thereof in which the non‑exempt shop or class of non‑exempt shop is situated
[468]The application sought to amend the Order ‑ Schedule 1 by the insertion of the following definition:
"Commencing at the intersection of Campbell St and Vine St; then by a line in a westerly direction to the intersection of Helen St and Young St; then by a line in a southerly direction to the intersection of Golf Course Rd and Hill St; then by a line in an easterly direction to the intersection of Hill St East and Sullivan Cr; then by a line in a northerly direction to the point of commencement."
[469]Pittsworth is situated 164 kilometres south‑west of Brisbane with the city of Toowoomba 39 kilometres to the north‑east and Stanthorpe 90 kilometres to the south.
[470]Inspections revealed Pittsworth to have a main shopping precinct in the form of one street with Woolworths housed in a small shopping centre (seven specialty shops) at one end of Yandilla Street and an IGA located in a "stand alone" site some 500 metres further down the same street. Woolworths being the only National retailer with operations in the town in terms of the application being considered by the Commission.
[471]The Gore Highway passes Pittsworth from the north with the NRA submitting there was a gateway to western Queensland and northern New South Wales.
[472]In terms of this criterion as was the circumstances in TH/2016/16 and 17 it would support the granting of the application.
(b) the needs of the tourist industry or other industry in such locality or part;
(c) the needs of an expanding tourist industry.
[473]The proceedings did not have the benefit of direct evidence in respect of landmarks, events or venues that could reasonably be identified as tourist attractions likely to draw people to Pittsworth apart from Droney's evidence where he mentioned in passing horse shows and a caravanning event.
[474]As was the circumstances with TH/2016/16 and 17 applications it could be found on balance that Pittsworth would fall within the Southern Queensland Country boundaries with regards to the overall domestic and international visitor numbers and the nights stayed however in the absence of evidence about specific tourist visitations and events in Pittsworth it cannot be determined that the Pittsworth's share of visitors and accommodation was of a level to enliven this particular criterion.
[475]The NRA in submissions quite correctly conceded that little evidence was adduced regarding the needs of the tourist industry in Pittsworth with the MGA advancing the same position.
[476]There was no evidence of a sufficient nature to support the needs of the tourist industry or any other industry being enlivened to favourably consider this criterion nor was there evidence regarding the needs of an expanding tourist industry that would assist the application.
(d) the needs of an expanding population
[477]Figures provided in research undertaken by the Australian Bureau of Statistics identified the population of Pittsworth in 2014 as 5,538 which was the only evidence that directly related to the Pittsworth population however in an attachment to Wright's affidavit of evidence [Exhibit 17] statistics were provided for the various local government regions of Queensland. Pittsworth prior to 2008 had their own Shire Council, which merged into the Toowoomba Regional Council that year. The past, current and projected population numbers for the Toowoomba local government area were identified as:
2015 2016 2021 2026 2031 2036 163,232 163,960 174,824 188,412 202,278 216,270
Droney in his evidence expressed a view that Pittsworth had only limited population growth.
[478]Whilst the needs of the expanding population criterion in this case rely upon projections of growth across the Toowoomba local government area more so than evidence related to Pittsworth (only) I form the view that whilst the growth in population is not likely to be significant, this criterion will have a positive but limited role is assessing the application.
(e)the public interest, consumers' interest, and business interest (whether small, medium or large)
Public Interest
[479]The Commission adopts the previous content of this decision in paragraphs 389 to 391 (inclusive) as it relates to this application.
[480]In the circumstances of this application the NRA argument that the public interest was best served by National retail businesses having consistency in hours across the Nation is somewhat diminished on the basis there is only a single non-exempt store that would benefit from the application being approved with that store's trading in the main, limited to grocery items.
[481]Upon weighing up the competing interests of each party I have not been convinced that the granting of the application would be in the public interest and to find otherwise would require the adoption of "a narrow construction of the expression 'public interest'" pursuant to the Full Bench decision in Re: National Retail Association Limited, Union of Employers[16].
[16] Re: National Retail Association Limited, Union of Employers [2014] QIRC 157
Consumer Interest
[482]The content of paragraph 394 of this decision is applicable to this application and is adopted.
[483]The Mortimer team approached in the first instance 417 respondents with the final number of 266 being those surveyed. Support for the changes to existing trading hours to allow non‑exempt retailers in Pittsworth to trade on Sundays and some Public Holidays was 61 per cent of those surveyed with 29 per cent opposing changes to the trading hours. The reasons of support for those in favour and those opposing the application were the same as identified in the Warwick and Stanthorpe applications.
[484]On 11 and 18 December 2016 the Woolworths store opened for Sunday trade attracting 1,065 customers on one of those days.
[485]The content of paragraph 397 of this decision is adopted for the purposes of this application.
[486]Shane Smith attached to his affidavit of evidence a document that could be best described as a petition which attracted the signatures of around 370 persons. The preamble to the document stated the following:
"To: The Queensland Industrial Relations Commission and Toowoomba Regional Council
The Pittsworth District Alliance draws to the attention of the Toowoomba Regional Council and the Queensland Industrial Relations Commission (QIRC) the desires of the people of Pittsworth and surrounding areas to retain existing Sunday and Public Holiday trading hours and continue to restrict Sunday and Public Holiday trading for larger non‑exempt stores in Pittsworth.
We petition the Toowoomba Regional Council and QIRC to oppose and reject the application of the National Retail Association to amend trading hours in order to allow large retail stores to open on future Sundays and Public Holidays. Larger retail stores do not need to trade these days in Pittsworth.
The opening of Sunday and Public Holiday trading hours to large retail stores will threaten our independent community stores, pharmacies and newsagents. We also want Sundays and Public Holidays kept for rest, relaxation, family time and sport which we believe is to the betterment of our community."
[487]The Principle Petitioner was identified as the Pittsworth District Alliance with the following information provided by those signing the petition:
· Name printed;
· Address; and
· Signature.
[488]Whilst some questions may arise over the standing of this petition, it does on the positive side of the ledger give the name and residential address of each person and is accompanied by their signature.
[489]The Commission in the discharge of its jurisdiction is required to take note of s 320 of the Industrial Relations Act 1999:
"320 Basis of decisions of the commission and magistrates
…
(2) In proceedings, the commission or Industrial Magistrates Court ‑
(a)is not bound by technicalities, legal forms or rules of evidence; and
(b)may inform itself on a matter it considers appropriate in the exercise of its jurisdiction.
(3)Also, the commission or Industrial Magistrates Court is to be governed in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of ‑
(a) the persons immediately concerned; and
(b) the community as a whole.
…(5)In making a decision, other than a decision made under chapter 6, division 1, subdivision 3, the commission must consider the public interest, and to that end must consider ‑
(a) the objects of this Act; and
(b)the likely effects of the commission's decision on the community, local community, economy, industry generally and the particular industry concerned."
Note: The Industrial Relations Act 1999 was the applicable Act at the time the application was both filed and heard by the Commission.
Therefore I am prepared to accept the petition instigated by the Pittsworth District Alliance is material of a nature that ought to be the subject of consideration in determining whether the granting of the application is beneficial in terms of consumer interest.
[490]In consideration of this application there was in fact competing material available to the Commission and in essence to accept the NRA argument that consumer interest should be viewed favourably would be done on the basis of a grocery offer in isolation, without other retail wares of an extended nature such as in Warwick and limited in terms of Stanthorpe being available to Pittsworth consumers.
[491]Consequently I am not satisfied the NRA has established on the requisite standard of proof that this criterion supports their application.
Small Business
[492]The NRA called witness evidence from Watson who as a partner of the entity that owned the Pittsworth Plaza supported the application to extend the trading hours being sought. Watson held the view that additional hours would provide extra choice, remove inconvenience, reduce congestion costs, boost employment while at the same time there were no contractual obligations on small store owners to open extended hours. Further evidence was adduced from Le who owned a pharmacy that was located in the Pittsworth Plaza currently opening between 8.30 am and 12.30 pm on Sundays. He also believed that extended hours would increase employment.
[493]The MGA through the evidence of Droney, the President of the Pittsworth District Alliance which is a local community not‑for‑profit organisation with a membership of around 100 persons, mostly small business owners informed the Commission of a vote taken by the members on 28 November 2016 to oppose the extended hours proposal. Under cross‑examination he confirmed that 17 representatives cast a vote following a presentation from Shane Smith and in the absence of any supporters of the application.
[494]Shane Smith as part owner of the Pittsworth IGA identified the potential loss of $1.5 million per annum in sales if the application was granted, having based his assumptions on losses suffered by the IGA when Woolworths opened in December 2016 on two Sundays.
[495]The evidence before the proceedings was that small businesses in Pittsworth was not supporting the granting of the application and the NRA had failed to provide an evidentiary case to support this criterion.
Medium Business
[496]Neither party to the proceedings offered any evidence around this criterion and as such will not be subject of consideration by the Commission in the determination of the application.
Large Business
[497]The Commission adopts paragraph 408 of this decision as being relevant to large business interests.
[498]The Commission is satisfied this criterion favourably supports the application being granted.
(f) the alleviation of traffic congestion
[499]There was no evidence of any consequence around this criterion and as such is not enlivened.
(g) the impact of the order on employment
[500]The only forecast of employment growth appeared in the evidence of Wright who identified an additional 65 hours per week of employment at the Woolworths store if the application was granted. The MGA witness Shane Smith evidenced that four full‑time staff would have to be terminated if the application was granted.
[501]Converting the claims of each of the parties to annual hours of employment gains and losses identified the following:
· Gain: 65 hours x 52 = 3,380
· Loss: 38 hours x 52 x 4 = 7,904
Upon assessment of the evidence I accept the position of Wright as a reasonable projection as to the likely additional hours to be created if the application was to be extended. Shane Smith's forecast of the potential loss of employment at the IGA store would appear to be highly inflated and not a figure accepted by the Commission as having credibility.
[502]The most likely scenario in Pittsworth due to the lack of National non-exempt retailers with the exception of Woolworths the gains in employment would at best end up as a "zero sum game" when compared to the loss that would be experienced by the IGA and therefore this criterion is effectively neutralised.
(h)the view of any local government in whose area the order is likely to have an impact
[503]The Toowoomba Regional Council by not presenting a view on the application by omission adopted a neutral position.
(i) such matters as the industrial commission considers relevant
[504]The Commission adopts the content of paragraphs 424, 425 and 426 of this decision as being relevant to the application, on the proviso of an amendment to paragraph 425 by deleting the reference to "Warwick" and inserting "Pittsworth".
FINDINGS
Warwick
[505]The statutory provisions pursuant to s 26 of the Act requires the Commission to have regard for this criteria in determining whether an Order can be made to allow non‑exempt shops to extend their hours of trade.
[506]On consideration of the evidence, material and submissions the NRA has established on the balance of probabilities that all criterion with the exception of s 26(c), s 26(f) and s 26(i) is favourable to the granting of the application.
[507]Accordingly the application is granted with the amendment to the Order Trading Hours ‑ Non‑Exempt Shops Trading by Retail ‑ State (in accordance with the Schedule attached to the Application filed 14 October 2016) for Warwick to take effect from 12 July 2017.
Stanthorpe
[508]The statutory provisions to s 26 of the Act requires the Commission to have regard for this criteria in determining whether an Order can be made to allow non‑exempt shops to extend their hours of trade.
[509]On consideration of the evidence, material and submissions the NRA has established on the balance of probabilities that all criterion with the exception of s 26(c), s 26(f) and s 26(i) is favourable to the granting of the application.
[510]Accordingly the application is granted with the Order Trading Hours ‑ Non‑Exempt Shops Trading by Retail ‑ State (in accordance with the Schedule attached to the Application filed 14 October 2016) for Stanthorpe to take effect from 12 July 2017.
Pittsworth
[511]The statutory provisions pursuant to s 26 of the Act requires the Commission to have regard for this criteria in determining whether an Order can be made to allow non‑exempt shops to extend their hours of trade.
[512]On consideration of the evidence, material and submissions the NRA has not established on the balance of probabilities that the following criterion has been enlivened to support the granting of the application:
· s 26(b), s 26(c), s 26(e) (Public Interest, Consumer Interest and Small Business), and s26(g).
[513]The criterion that has been satisfied as supporting the application was limited to s 26(a), s 26(d) and s 26(e) (Large Business) with the remaining criterion neutral.
[514]Accordingly the application to amend the Order Trading Hours ‑ Non‑Exempt Shops Trading by Retail ‑ State (in accordance with the Schedule attached to the Application filed 14 October 2016) for Pittsworth is not granted.
[515]I order accordingly.
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