The changes

Previously the Retail Trading Act 2008 (NSW) (the ACT) only allowed retailers to trade on 26 December if they were an exempt shop of if they were located in the Sydney Trading Precinct. This are was limited to the Central Business District and parts of the Eastern Suburbs.

The changes to the Act remove this restriction allowing banks and retailers across the state to trade on 26 December. The changes will apply to Boxing Day 2015 and 2016, and the legislation will then be subject to further review. As one of the top accountants in Gosford, lets take a deeper look.

Employees must ‘freely elect to work’

The Fair Work Act 2009 (Cth) states that an employee is generally entitled to be absent from work on a public holiday. Despite this, an employer may request an employee to work if it is reasonable to do so, but the employee has the right to refuse unless that is unreasonable. An employee who works on a public holiday is entitled to the public holiday provisions (such as penalty rates and minimum engagements) under the applicable award, enterprise agreement or contract of employment.

It is important to note that whilst an employer can make such a request, the Retail Trading Act 2008 makes it an offense for a bank or shop to open on Boxing Day unless all employees have “freely elected to work on that day”. A person must not work because they have coerced, harassed, threatened or intimidated and they must not work merely because they are rostered, or required to do so by the terms of an industrial instrument.

Employers found to be in breach of these provisions in the Retail Trading Act 2008 may face penalties of up to $11,000 per employee concerned.

NSW Pubic Holidays

The Public Holidays Act 2010 (NSW) declares 26 December as a public holiday. As 26 December this year falls on a Saturday, the following Monday is also a public holiday. As a result, both Saturday 26 December and Monday 28 December are public holidays in NSW. Employers should be aware that Monday is an additional public holiday and not a substituted public holiday. This means that the provisions the Fair Work Act 2009 and any applicable award or enterprise agreement apply to Monday 28 December as well as to Boxing Day. Members should check the applicable award or enterprise agreement for specific details.

The following days in December and January are statewide public holidays:

• Christmas Day – Friday, 25 December 2015
• Boxing Day – Saturday, 26 December 2015
• Additional Day – Monday, 28 December 2015
• New Year’s Day – Friday, 1 January 2016
• Australia Day – Tuesday, 26 January 2016

The changes made by the Retail Trading Amendment Act 2015 (NSW) apply to Boxing Day (26 December) only.

For further information, contact the NSW Business Chamber on 13 29 59 or email advice@nswbc.com.au.