Davis v Department of Commerce & anor [2002] NSWCA 260 | Case summary

REASONS FOR DECISION 1 This matter involves an application by Peter Davis, on behalf of Bunnings Group Ltd trading as Bunnings Warehouse ('Bunnings'), for a review of a decision of the Director General of the Department of Commerce ('the Department') made under the Shop Trading Act 2008 ('the ST Act') not to grant an exemption allowing Bunnings to trade on Easter Sunday. Background 2 Peter Davis is the Chief Operating Officer and a Director of Bunnings. On 3 November 2008, Mr Davis, acting on behalf of Bunnings, applied to the Department for an exemption under the ST Act to permit Bunnings to trade in NSW on Boxing Day and Easter Sunday. On 12 December 2008, a delegate of the Director General decided, first, to grant an exemption until 30 June 2009 to allow Bunnings to trade on Boxing Day in all existing and future Bunnings Warehouse locations (other than those Bunnings Warehouse shops operating in areas with an existing exemption), subject to a condition that any Bunnings Warehouse covered by the order could only trade between 9 am and 5 pm on Boxing Day. The delegate informed Mr Davis that on the expiry of the exemption in June 2009, the NSW Office of Industrial Relations would carry out a review of the exemption. Second, the delegate decided to refuse the application for an exemption in respect of Easter Sunday. 3 On 18 December 2008, the Shop Distributive and Allied Employees Association, NSW, commenced proceedings in the Supreme Court to have the Department's decision declared unlawful or otherwise set aside, and for further ancillary relief. Following a hearing on 22 and 23 December 2008, Adams J dismissed the summons: Shop Distributive and Allied Employees Association, NSW v Director General, NSW Department of Commerce - 30150/08, unreported, NSW Supreme Court, 23 December 2008 ('SDA v Commerce'). 4 By letter dated 9 January 2009, Mr Davis sought an internal review of the decision dated 12 December 2008 to refuse an exemption for Easter Sunday. On 30 January 2009, the Department confirmed the decision. On 12 February 2009, Mr Davis filed an application with the Tribunal for a review of that decision. On 27 February 2009, the President of the Tribunal, O'Connor DCJ, conducted a Directions Hearing at which he gave directions for the exchange of documents between the parties and ordered that the Shop Distributive and Allied Employees Association, NSW, and the federal Shop Distributive and Allied Employees Association (referred to jointly hereafter as 'the SDA') be joined as the second respondent in these proceedings. The Legislation 5 The ST Act took effect on 1 July 2008, repealing the previously applicable Shops and Industries Act 1962 ('the 1962 Act'). Section 4 of the ST Act states: 4 Shops to be closed on restricted trading days (1) All shops must be kept closed at the following times:

(4) An exemption may be subject to conditions. 9 Section 12 permits persons aggrieved by such decisions to apply to the Tribunal for a review. Section 13 is applicable to staffing on restricted trading days: 13 Staffing on restricted trading days (1) Any exemption granted by the Director-General under this Part is subject to the condition that, on a restricted trading day, the exempted shop is staffed only by persons who have freely elected to work on that day, without any coercion, harassment, threat or intimidation by or on behalf of the occupier of the shop. (2) For the purposes of subsection (1), a person is not taken to have freely elected to work on a restricted trading day merely because the person is rostered to work on that day. (3) This section has effect despite any other law. Failure to comply with this condition is an offence under s 14. 10 The issue for the Tribunal to determine, standing in the shoes of the Director General, is whether to exempt Bunnings from the trading restrictions on Easter Sunday pursuant to s 10. Additional Evidence 11 In these proceedings, apart from material contained in the documents filed by the Department pursuant to s 58 of the Administrative Decisions Tribunal Act 1997, Bunnings filed an affidavit by Craig Wallace dated 6 March 2009, and the SDA filed an affidavit by Bernie Smith dated 12 March 2009. Craig Wallace 12 Mr Wallace is one of two regional managers (NSW/ACT) responsible for the day-to-day operation of Bunnings in NSW and the ACT. He provided evidence as to the nature of Bunnings' business, the locations of Bunnings' shops in NSW and which are warehouses and which are stores, the nature of the products stocked in those shops, current exemptions under the 1962 Act, the number of Bunnings' employees in NSW and their terms of employment, and the effect of Bunnings being permitted to trade on Easter Sunday including expected demand. 13 Mr Wallace said Bunnings operates at 68 locations in NSW, 48 of which are free standing warehouses and 22 are stores in regional, country and suburban locations (often as a result of past mergers). An average warehouse stocks about 49,000 coded product items, whereas stores, which vary in size, mostly stock between 15,000 and 20,000 coded product items. Mr Wallace said Bunnings has current exemptions, granted under s 89B the 1962 Act, in respect of 15 warehouses and 8 stores. It is seeking an exemption in respect of another 33 warehouses and 12 stores. 14 Mr Wallace said Bunnings has a total of 6,960 full-time, part-time and casual employees in NSW, 5,125 of whom are employed in warehouses/stores in respect of which an exemption is sought. Warehouse employees are employed under the terms of the Bunnings Warehouse Agreement 2006 and store employees are employed under the terms of the Bunnings Small Formats Stores Agreements 2008, both being union collective agreements made with the SDA under the provisions of the Workplace Relations Act 1996 (Cth). Given past experience and the current economic climate, Mr Wallace anticipated no difficulty in attracting volunteers to work on Easter Sunday if Bunnings' application for exemption is successful. Bernie Smith 15 Bernie Smith is the Assistant Secretary-Treasurer of the NSW branch of the SDA, responsible for assisting in the day-to-day administration and management of the NSW branch. The SDA represents workers in the retail and fast food industries including, in NSW, approximately 1,500 workers who work for Bunnings. 16 The SDA opposed Bunnings' application for exemption because of the detrimental impact an exemption would have on its members. Mr Smith said that notwithstanding the voluntary labour provision in the ST Act, Bunnings would be able to pressure employees to work on exempt days if it did not receive a sufficient number of volunteers prepared to work on these days. Moreover, because of the economic situation, employees may feel indirect pressure to work. 17 Mr Smith said the SDA has received a large number of calls/email messages objecting to the deregulation of shop trading hours, including in respect of Easter Sunday. In a survey of 92 Bunnings employees conducted on Boxing Day 2008, only 70% of employees were supportive of or indifferent to Bunnings trading on Boxing Day. Mr Smith noted that because Easter Sunday is not a public holiday, work performed on Easter Sunday would not be performed at public holiday penalty rates. (The public holiday rate is double time and a half - 250%, whereas the Sunday rate, applicable in respect of Easter Sunday, is time and a half - 150%.) Mr Smith also gave evidence of objections to Easter Sunday trading by members registering their opposition on the SDA's website. Bunnings' Submissions 18 Bunnings filed written submissions on 17 March 2009 and Mr Goot made further oral submissions at the hearing. He referred to the matters that must be taken into account in determining whether to grant an exemption pursuant to s 10(3) of the ST Act. With regard to s 10(3)(a), the nature of the shop and the kind of goods sold, Mr Goot referred to the list of products stocked by Bunnings set out in Mr Wallace's affidavit. These include bathroom and kitchen products, builders and renovators products, do it yourself ('D.I.Y.') products and gift cards, flooring products, garden products, hire shop, lighting and electrical products, outdoor living products, paint products, storage and organisation products, tools and hardware products and window furnishing products. 19 Mr Wallace referred to many of the products as being "essential": for example, replacement or repair items for hot water systems, toilets, cisterns, tap valves, and shower heads. He also referred to items that may be required at a time of natural disasters, such as the bush fires in Victoria. Mr Goot noted that not all plumbing or other trade work needs a licence. Indeed, licensed plumbers and other tradespeople may, themselves, be customers of Bunnings. 20 With regard to s 10(3)(b), "the need for the shop to be kept open on the day concerned", Mr Goot referred to the definition of 'need' in the Shorter Oxford English Dictionary (5th edition). This includes 'needful', and also 'recommended' or 'desirable'. Mr Goot contended that there is a need for Bunnings to be open on Easter Sunday. Easter is a four day long weekend and a "heavy D.I.Y. time for those who want to do this". Inevitably, people will underestimate what they need and will run out of supplies for such activity. Bunnings can meet such needs. Permitting an exemption in respect of Easter Sunday will neither prevent it being treated as a special day, nor infringe on religious, cultural or social beliefs, and will not prevent those who wish to do so being involved in religious or family occasions. It is a matter of choice - not everyone wants to mark Easter Sunday as a special occasion. Easter trading at Bunnings' shops reveals a clear demand for its products, one that has been exacerbated by the present financial crisis with people doing more D.I.Y. work. 21 Mr Goot noted the current anomalous position whereby there is an existing exemption (granted under the 1962 Act) for some of its shops, and the fact that many other shops exempted under Sch 1 cannot reasonably be said to sell essential products: for example, bookshops, florists, music, video or dvd shops, and tobacconists. Moreover, the list of exempt shops in Sch 1 of the ST Act includes nurseries, which, like Bunnings, sells garden products. 22 With regard to s 10(3)(c), "the likely effect of the proposed exemption on the local economy, tourism and other businesses in the area", Mr Goot referred to Justice Adams' comments in SDA v Commerce, at [8], where he said that the relevant area "will differ according to the nature of the business and, broadly speaking, the urban context in which it is carried on". His Honour said, at [12]: "In short, s 10(3)(c) focuses on general matters as to which a general understanding of the factual context would be sufficient, the identification of particular suburbs of Sydney, and of particular country towns would be sufficient to my mind for the Director General, or his delegate, to properly consider the requirements of the paragraph if he or she thought it appropriate to do so in the particular case. If the decision maker thought that further information was necessary, then of course the decision maker would be obliged to obtain it." 23 Mr Goot submitted that the Tribunal should adopt a similar approach. He said most of the shops in respect of which an exemption is sought are warehouses. Mr Wallace has provided evidence of an expected high level of demand over the Easter period. Bunnings' stores compete in the 'home improvement' market. There is no evidence of any possible adverse effect on other businesses. Mr Goot also noted that Bunnings raises money at its shops for community groups through sausage sizzles, and contributes to local, regional and national organisations and charities. 24 With regard to s 10(3)(d), "the likely effect of the proposed exemption on employees", Mr Wallace said this should be read in conjunction with s 13, which requires that an exempted shop can only be staffed by those who have freely elected to work on that day. Working on Easter Sunday must, therefore, be voluntary and Bunnings is entitled to an assumption that it will comply with this requirement. There would be no interference with those who wish to be involved in religious or family activities. No complaint has been received by Bunnings about its trading on Boxing Day 2008. While the SDA claims to have received complaints about Bunnings trading on Boxing Day, these were not passed on to Bunnings, which suggests the complaints lacked substance. 25 Mr Goot submitted that the ST Act does not stipulate that there must be a 'compelling reason' for an exemption to be granted as suggested by the Department. It is a matter of applying the approach dictated by s 10(3). Mr Goot contended that the 'floodgates' argument - that other high profile shops will also seek an exemption to trade on Easter Sunday, referred to by the other parties - is irrelevant. Rather, it is a matter of Bunnings' application being considered on its merits. The Department's Submissions 26 The Department filed written submissions on 18 March 2009 and Ms Spruce made further oral submissions at the hearing. She noted that Bunnings' application for the exemptions for Boxing Day and Easter Sunday is for an indefinite period, and in respect of 45 stores across NSW - the application is of an extensive nature. 27 Ms Spruce submitted there is a presumption under the ST Act that shops will be closed on Easter Sunday. Section 4 imposes a general prohibition on such trading, attended, pursuant to s 5, by criminal sanctions for breach. Section 10 must be read in the context of the ST Act as a whole. Schedule 1 lists a range of shops that Parliament has deemed should not be subject to s 4. These include shops to which the Government considers the public have a need to have access and others which have customarily been able to trade (Second Reading Speech, Legislative Council, Hansard 26 June 2008, p 9434). The ST Act amended the previous regime and brought the law into line with current practice. Hardware shops are not amongst those customarily able to trade. 28 Ms Spruce submitted the Tribunal should have regard to the legislative history of the ST Act and determine Parliament's legislative intent. The Agreement in Principle Speech for the Bill in the Legislative Assembly (Hansard 6 June 2008, p 8363) makes it clear that Parliament intended to: "retain trading restrictions for major retailers on only a few of the most significant public holidays - on Good Friday, Easter Sunday, Christmas Day, Boxing Day and before 1 pm on ANZAC Day. These are our most significant public holidays." 29 With the current exemptions, the Government has sought to reduce the number of exemptions under the old regime and also the regulatory burden - the 'red tape', and strike a balance, weighing "the freedom of small businesses to trade and customers to shop at times that are convenient to them, while at the same time recognising the importance of those days that have special community significance" (Hansard, p 8363). Clearly, the Government considered customer expectations in this process. The ST Act must be construed so as to give effect to its object and purpose. An exemption under s 10 is not to be granted lightly. There should be a compelling reason for an exemption to be granted. 30 In terms of the matters to which the decision-maker must have regard under s 10(3), Ms Spruce said the issue in this case is whether people should be able to buy home improvement goods - largely hardware, lifestyle and D.I.Y. goods - on Easter Sunday (s 10(3)(a)). She said Bunnings does not predominantly sell goods that are essential such as food or medicine. Home improvement goods can easily be purchased on Easter Saturday or Easter Monday. 31 T Ms Spruce said the 'need' for the shop to be open is for the specific day in issue and not any other day (s 10(3)(b)). She submitted that 'need' should be interpreted as meaning 'necessity'. Bunnings have done no more than establish that it is desirable for Bunnings to trade on Easter Sunday. Neither this nor customer demand or expectations are relevant considerations for s 10(3)(b). 32 In applying s 10(3)(c), Ms Spruce submitted that the Tribunal should follow a 'common sense approach' as did Adams J in SDA v Commerce. The Department contends that as a matter of common sense, if Bunnings are permitted to trade on Easter Sunday, competitors will be adversely affected. The Department accepts that there may be some overall benefit to the economy by allowing Bunnings to trade, although there is no evidence of this and therefore little weight can be attributed to it. 33 With regard to the likely effect on employees (s 10(3)(d)), Ms Spruce said comparisons should not be drawn with the situation in Victoria where the regime is very different and there is no equivalent to s 13 of the ST Act. Under the two federal workplace agreements, Bunnings can direct employees to work on Sundays. A comparison should also not be made with Boxing Day for which, being a public holiday, the pay rates are different, and Boxing Day is not a day that has the same religious and community significance as Easter Sunday. While it is likely that there may be some positive effect for employees in terms of the opportunity to earn extra money, especially given the current economic climate, there may be a negative effect because of the recession with employees feeling pressure to work. As Adams J recognised in SDA v Commerce, at [15]: "There are, of course, many more ways than a direct order to influence a worker to work when he or she might prefer not to and, in the nature of things, the statutory requirement of voluntariness must be difficult to police." 34 Ms Spruce noted that s 10(3)(e) is not relevant in this matter, but said that with regard to other relevant matters under s 10(3)(f), the religious and cultural significance of Easter Sunday should be considered. The 'floodgates' issue could also be a relevant matter. An exemption should only be granted where necessary and justified. 35 In conclusion, Ms Spruce contended that there is no demonstrated public need for or public benefit from permitting Bunnings to trade on Easter Sunday. Bunnings' motive is a commercial one of profit. The SDA's Submissions 36 The SDA filed written submissions on 18 March 2009 and Mr Robinson made further oral submissions at the hearing. Mr Robinson said the SDA adopts the submissions made by the Department. He endorsed an approach of construing the ST Act so as to achieve its intended object - that of de-regulating shop trading hours while at the same time seeking to protect 4.5 special, restricted days, including Easter Sunday, a day of great significance in, particularly, the Christian calendar. However, Easter Sunday is also of secular and community importance, with a four day long weekend permitting families to plan a short holiday or spend time together. 37 Mr Robinson submitted that comparisons should not be drawn between Easter Sunday and Boxing Day. Boxing Day was not regarded as being a day of special significance in the Report of the Better Regulation Office, "Reform of Shop Trading Hours in NSW" (November 2007) ('the Better Regulation Office Report'), on which the ST Act was based. The Report stated, at p 15, that major retailers trade on Boxing Day under exemptions from restrictions, and Boxing Day sales have become a Christmas holiday tradition across Australia. With regard to the impact of reforms on employees, the Report, while recognising that there will always be some categories of people whose work is essential even on special days, said that retail workers were not in that category, and concluded, at p 21: "Accordingly, the commercial desire of a shop to open on one of these special days does not need to compromise the general entitlement of people, including the shop's employees, to spend the day marking the occasion with their family and friends if they so desire." 38 In terms of other relevant 'extrinsic material' that may be considered in order to confirm the meaning of provisions of the ST Act by reference to the purpose or object underlying the Act, Mr Robinson referred the Tribunal to the Second Reading Speeches in both Houses. He said the "quirks and anomalies" in the exemptions from s 4 are explained by reading such material. While the ST Act was intended to streamline the law, it was also a compromise - hence the exemption for small shops and the variety of shops included in Sch 1, which cannot be reconciled with other parts of the Act. However, the NSW Parliament did specifically turn its mind to the issue of exemptions and, unlike in Victoria, where there is a specific exemption for hardware stores, it expressly omitted hardware stores from the Sch 1 list of shops that are automatically exempt. 39 Mr Robinson contended that the list of objections to Easter Sunday trading lodged on the SDA's website (an attachment to Mr Smith's affidavit) indicates widespread opposition from union members and their families. He said it is a fundamental flaw in Bunnings' case to claim that the grant of an exemption enabling it to trade on Easter Sunday will not interfere with that day of special significance. As Adams J recognised in SDA v Commerce, at [15], there may be indirect pressures on employees to work, whether in the form of pressure to 'toe the line' or even from themselves in terms of a perceived need for additional income. 40 Mr Robinson submitted that there must be something exceptional to support an exemption. Bunnings have not established a 'need' to trade on Easter Sunday in terms of the 'necessity' for doing so. Notwithstanding the decision in SDA v Commerce, he also claimed Bunnings had failed to provide evidence of the likely effect on the economy and businesses in the local areas where Bunnings' shops are located (s 10(3)(c)). Bunnings have failed even to provide addresses for their shops. Thus, he submitted, the Tribunal cannot make an assessment of "the likely effect ... on the local economy, tourism and other businesses in the area". 41 Mr Robinson noted that Bunnings is a large high profile national business. If it is permitted to trade on Easter Sunday, this will create a distortion in general expectations. There would then be an increased risk of escalation and 'floodgates' - of other high profile shops also seeking exemptions allowing them to trade. Discussion 42 As stated above, the issue for the Tribunal to determine, standing in the shoes of the Director General, is whether to grant an exemption to Bunnings to trade on Easter Sunday pursuant to s 10(3) of the ST Act. Both the Department and the SDA have submitted that there is a presumption that shops will be closed on Easter Sunday, and that there must be a compelling reason for an exemption to be granted. Both have referred to extrinsic material in discussing how the provisions of the Act should be interpreted. 43 The proper approach to statutory interpretation requires that consideration must first be given to the ordinary meaning of words in the context in which they are used: Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 161. Hence, in this case, consideration must first be given to the ordinary meaning of the words used in the context of the ST Act as a whole. Section 34(1) of the Interpretation Act 1987 permits reference to 'extrinsic material' for the purpose of confirming that the meaning of the provision is the ordinary meaning conveyed by the text of the provision, or to determine the meaning of a provision if the provision is ambiguous or obscure, or if the ordinary meaning leads to a result that is manifestly absurd or is unreasonable. 44 Section 34(2) provides that the extrinsic material to which reference may be made for this purpose includes reports laid before Parliament before the provision was enacted, any explanatory note or memorandum furnished to members of either House by the Minister or other member introducing the Bill before the provision was enacted, and speeches made by a Minister or other member when moving that the Bill be read a second time. 45 In my view, it is appropriate, given the submissions of the parties as to how s 10(3) should be applied, to consider the extrinsic material to which I have been referred for the purpose of confirming the purpose of the ST Act and the ordinary meaning of its provisions. This extrinsic material comprises the Better Regulation Office Report, most of the recommendations of which were implemented in the ST Act, the 'Agreement in Principle Speech' (as the Second Reading Speech is now known in the NSW Legislative Assembly) on the Shop Trading Bill 2008, and the Second Reading Speech on the Bill in the NSW Legislative Council. In the NSW Court of Appeal decision in Geaghan v D'Aubert [2002] NSWCA 260, Stein JA, with whom Handley JA and Foster AJA agreed, said, at [22] to [24], that it was open to the Court, in ascertaining the legislative intent, "to examine the immediate preceding legislative form". 46 The Better Regulation Office Report, referring to Good Friday, Easter Sunday, Christmas and the morning of ANZAC Day, noted "the continued community recognition of the significance of those days" (p 15), and concluded (p 21): " ... there are certain days which are generally recognised as being of such significance that it is appropriate for shops to close and for the community to put aside, as far as practicable, their usual occupations to mark the particular occasion. These include Good Friday, Easter Sunday and Christmas Day. There will always be some categories of people whose work is so essential that the community cannot do without their services, even on these special: people like nurses, police officers and fire fighters. By and large, however, retail employees cannot be considered to be a category of essential worker. Accordingly, the commercial desire of a shop to open on one of these special days does not need to compromise the general entitlement of people, including the shop's employees, to spend the day marking the occasion with their family and friends if they so desire." 47 The Report recommended that ANZAC Day before 1 pm, Good Friday, Easter Sunday and Christmas Day should be prescribed as restricted trading days. The Report recommended that while the NSW legislation should continue to recognise an "exclusion" for small shops and an exemption for certain categories of shops by reference to their predominant business (for example, chemists), there should be a single power for the Director General to grant an exemption by reference to criteria set out in the legislation. 48 In the Agreement in Principle Speech on the Shop Trading Bill 2008 in the Legislative Assembly on 6 June 2008 (Hansard p 8363), Ms Tanya Gadiel, on behalf of the Minister, referred to the reforms in the Bill implementing "most of the recommendations made by the Better Regulation Office". She recognised that "[w]e live in a 24-hour-a-day, 7-days-a-week economy" and that the public need "flexibility to shop at times that are convenient to them". The Bill was intended to "do away with the unnecessary red tape" of the 1962 Act, giving retailers flexibility to trade whenever their customers want them to and whenever they consider it economically viable for them to do so, and retaining "trading restrictions for major retailers on only a few of the most significant public holidays - on Good Friday, Easter Sunday, Christmas Day, Boxing Day and before 1.00 pm on Anzac Day. These are our most significant public holidays." The Bill retained exemptions for "[s]mall shops and certain categories of shops - shops such as chemists, restaurants and florists - [that] have always been exempt from trading restrictions". Ms Gadial said: "The Government considers that these thresholds strike an appropriate balance between ensuring the freedom of small businesses to trade and customers to shop at times that are convenient to them, while at the same time recognising the importance of those days that have special community significance." 49 Ms Gadial referred to transitional provisions in the Bill, including the "grandfathering" of existing exemptions, and to the Director General retaining a power to grant exemptions from the trading restrictions by reference to specific criteria set out in the legislation. The process would be "more user friendly and flexible", but, "given that trading restrictions will now only apply on a handful of our most significant public holidays, the need for such exemptions will be significantly reduced". 50 The Second Reading Speech for the Bill in the Legislative Council on 26 June 2008 (Hansard p 9434), by the Hon Penny Sharpe, on behalf of the Hon Michael Costa, is in almost identical terms. 51 Having considered s 10 in the context of the Act itself and these 'extrinsic sources', I am not satisfied that I should read into the legislation a need for a 'compelling reason' for an exemption to be granted. Certainly, pursuant to s 4 of the ST Act, the general position is that all shops are to be kept closed on the nominated restricted trading days, that is Good Friday, Easter Sunday, ANZAC Day before 1 pm, Christmas Day and Boxing Day. Breach of this provision is an offence under s 5. These restricted trading days are those which the Agreement in Principle/Second Reading Speeches referred to as being days of special significance, although the Better Regulation Office Report did not include Boxing Day as such a day. 52 The ST Act provides (automatic) exemptions for small shops, shops to which the Government considers the public should have access, and others that have customarily been able to trade. Moreover, exemptions granted under the 1962 Act continue to be recognised. While, as counsel in these proceedings acknowledged, the result is some anomalies in continuing exemptions, the Government appears to have acted pragmatically and to have decided to tolerate such anomalies in order to ensure the successful passage of the legislation through Parliament. 53 The ST Act preserves a power for the Director General to grant specific exemptions from the trading restrictions under s 10, and, in doing so, s 10(3) requires the Director General to take into account the matters specified in paragraphs (a) to (f). In my opinion, the plain language of s 10 requires no more than that. However, while I do not accept that there must be a compelling reason for an exemption to be granted, nevertheless, it is clear that the legislative intent, evident from a reading of the Act as a whole and from the extrinsic materials, is that the restricted trading days identified in s 4 should generally be recognised. 54 Turning to the application of s 10(3), the first matter the Director General must take into account is the nature of the shop in respect of which an exemption is claimed and the kind of goods sold by the shop (s 10(3)(a)). Mr Wallace's evidence indicates that Bunnings sells a very large number of "coded products items": about 49,000 in an average 'warehouse' type shop, and an average of between 15,000 and 20,000 in a smaller 'store'. These items include those one might expect to see sold in a more traditional 'hardware' store, including D.I.Y. products, but also include garden and outdoor products, and flooring and window furnishings. Mr Goot contended that some of the products sold could be categorised as 'essential' - for example, products such as tap washers, parts for toilet and hot water systems, that are purchased not only by the general public, but also by qualified tradespeople such as plumbers. Ms Spruce contended that Bunnings does not predominantly sell goods that are essential, such as food or medicine. 55 In my view, having considered the evidence as to the wide range and number of goods sold in Bunnings shops, I am not satisfied that Bunnings predominantly sells essential goods. 56 Section 10(3)(b) requires the Director General to take into account "the need for the shop to be kept open on the day concerned". The parties disagreed on the meaning that should be accorded to the word 'need'. Mr Goot referred to the definition in the Shorter Oxford English Dictionary (5th edition) suggesting that 'need' means something that is desirable or recommended. On the other hand, the two respondents, who also referred to other meanings listed in the same dictionary, submitted that 'need' should be accorded the meaning of 'necessity', suggesting a required course of action. Mr Goot argued that there is a demand from customers for Bunnings to open on Easter Sunday because it is "heavy D.I.Y. time" and people will inevitably underestimate what they need and run out of supplies. He also suggested there is a greater demand for Bunnings' D.I.Y. products because people are undertaking more home maintenance/improvement work themselves as a result of the current recession. He also contended that permitting an exemption for Easter Sunday would not infringe on choices made by those who wish to be involved in religious or family occasions. 57 While I am satisfied that there would be a demand from some customers to shop at Bunnings on Easter Sunday, I am not satisfied that this amounts to a 'need' for Bunnings' shops to be open on that day. I note that customers will be able to shop at Bunnings on Easter Saturday and Easter Monday, and I doubt that its shops being closed on Easter Sunday will cause any great inconvenience to most customers, including home handypersons, when considered in the context of Easter Sunday being a day of special significance. 58 With regard to s 10(3)(c), the likely effect of the proposed exemption on the local economy, tourism and other businesses in the area, I note the 'commonsense approach' adopted by Adams J in SDA v Commerce, at [12] (see above at [22]), who indicated that a general understanding of the factual context will ordinarily be sufficient unless the Director General or his or her delegate considers that further information is necessary. In my view, I should also adopt this approach, and I reject the SDA's submission suggesting that it is necessary to take a closer look at the likely effect on the local economy for each of the 45 Bunnings shops in respect of the exemption is sought. To do otherwise would in most cases increase the 'red tape' that the Government stated it was seeking to reduce. 59 Mr Goot said Mr Wallace had provided evidence of an expected high level of demand over the Easter period and there was no evidence of any possible adverse effect on other businesses. He also gave evidence of Bunnings using such holiday trading to raise money for local organisations and charities through 'sausage sizzles'. Ms Spruce argued that, as a matter of common sense, if Bunnings are permitted to trade on Easter Sunday competitors will be adversely affected. However, she accepted there may be some overall benefit to the economy by allowing Bunnings to trade, albeit that there is no real evidence of this. 60 I note that the majority of the shops in respect of which an exemption is sought are stand-alone warehouses (33 out a total of 45). While Bunnings' use of weekends and holiday periods to raise money for local charities is, of course, commendable, in my view, any benefit to the local economy will primarily flow to Bunnings and there could be an adverse effect on competitors which have not been granted an exemption to trade on Easter Sunday. However, I accept that greater expenditure may be of overall benefit to the economy at a time of impending recession. 61 With regard to s 10(3)(d), the likely effect of the proposed exemption on employees of Bunnings, Mr Wallace's evidence is that there are 5,125 employees working in the warehouses/stores in respect of which the exemption is sought. He stated that, given past experience and the current economic climate, he expected no difficulty in attracting volunteers to work on Easter Sunday if Bunnings' application is successful. Mr Smith, speaking for the SDA, expressed concern that, notwithstanding the voluntary labour provision in the ST Act, Bunnings would be able to pressure employees to work if it does not receive a sufficient number of volunteers. Further, because of the economic situation, employees may feel indirect pressure to work. He referred to evidence of opposition to working on Easter Sunday from employees and their families, and pointed out that work performed on Easter Sunday is only paid at the normal Sunday rate (150%) because Easter Sunday is not a public holiday (for which a rate of 250% would be payable). 62 I have reviewed the two relevant workplace agreements: the Bunnings Warehouse Agreement 2006 and the Bunnings Small Format Stores Agreement 2008. Clause 10.2 of the Warehouse Agreement provides relevantly: "10.2 Ordinary hours of work may be rostered on any day at any time The times during which a team member may expect to be regularly rostered to work ordinary hours shall be: 10.2.1 Monday - Sunday between 5.00 am and 11.00 pm" 63 There does not appear to be any specific provision applicable in respect of Easter Sunday because this is not a public holiday. 64 Clause 5.1 of the Small Format Stores Agreement provides that the span of ordinary hours of work will be Monday to Saturday from 5.00 am to 10.00 pm and Sunday from 6.00 am to 8.00 pm. Clause 5.2(j) provides that no Bunnings employee can be rostered to work on Easter Sunday in a store which cannot legally trade. 65 I agree with Mr Goot's submission that Bunnings is entitled to an assumption that it will comply with the voluntary labour requirement for trading on restricted days (s 13). He said that Bunnings has received no complaint from employees in relation to its trading on Boxing Day 2008. He denied that Bunnings would put pressure on employees to work and said there would be no interference with those who wished to be involved in family or religious activities on Easter Sunday if an exemption is granted. 66 Ms Spruce said that the two workplace agreements allow Bunnings to direct employees to work on Sundays. A comparison should not be made with Boxing Day for which, being a public holiday, the pay rates are different, and Boxing Day is not a day that has the same religious and community significance as Easter Sunday. While it is likely that there may be some positive effect for employees in terms of the opportunity to earn extra money, especially given the current economic climate, there may be a negative effect because of the recession with employees feeling pressure to work, as Adams J recognised in SDA v Commerce (quoted above at [33]). 67 Ms Spruce said comparisons should not be drawn with the situation in Victoria where the regime is very different and there is no equivalent to s 13 of the ST Act. Having reviewed the Shop Trading Reform Act 1996 (Vic), I agree the regime established by that Act and its regulations is different, and I note, in particular, that pursuant to s 5A, the Governor in Council has granted an exemption from Easter Sunday closing for all hardware shops in Victoria. 68 Mr Robinson rejected Bunnings' argument that there would be no interference with those for whom Easter Sunday has religious significance or who wish to spend time with their families. He contended that the SDA has provided evidence of widespread opposition to Easter Sunday trading among Bunnings employees and their families. He also referred to Adams J's comment in SDA v Commerce, at [15], that there might be indirect pressure on employees to work, whether in the form of pressure to 'tow the line' or even pressure from employees themselves, particularly given the present economic climate. 69 In my view, it is clear the two workplace agreements ordinarily allow Bunnings to roster employees to work on Sundays. However, if an exemption were to be granted in respect of Easter Sunday in NSW, Bunnings would be subject to s 13(1) of the ST Act which requires that employees must "have freely elected to work on that day, without any coercion, harassment, threat or intimidation by or on behalf of the occupier of the shop". Moreover, s 13(2) provides that a person is not taken to have elected to work on a restricted trading day merely because the person is rostered to work on that day. Failure to comply with this condition is an offence under s 14. 70 I note Adams J's comments in SDA v Commerce and accept that an employee may experience indirect pressure to work, for example in the nature of 'towing the line' or as a result of the employee feeling financial pressure to boost his or her earnings at a time of impending recession. 71 The remaining factors in s 10(3), to which the Director General must have regard are paragraph (e), which is not relevant in this case, and paragraph (f), "any other matters the Director General considers to be relevant". There are two matters the respondents referred to under this head in the course of their submissions. The first is the special religious and cultural significance of Easter Sunday. Mr Robinson made lengthy written submissions on this issue. I doubt there is any disagreement about the special significance of Easter Sunday in the Christian calendar, and I accept that traditionally in Australian culture Easter Sunday has been a time when family and close friends choose to spend time together. Nevertheless, it is true, as Mr Goot pointed out, that not everybody chooses to be so engaged. 72 The second matter which, it was suggested, is relevant in relation to paragraph (f) is what was referred to as the 'floodgates' issue. Mr Robinson described Bunnings as a large high profile national business. He contended that if it were permitted to trade on Easter Sunday, this would create a distortion in general expectations. There would then be an increased risk of escalation and of other high profile shops also seeking exemptions allowing them to trade. I accept that Bunnings is a large high profile national business. However, in my view that does not mean that its application should be treated differently from that of a smaller business without such a profile. In my view, each application for an exemption must be considered on its merits in accordance with the provisions of the ST Act. Nevertheless, as I stated above, in construing the provisions of the Act, consideration must be given to the meaning of the words in the context of the Act as a whole and, where appropriate, with reference to relevant extrinsic material. The general position is clear: that all shops must be kept closed on the nominated restricted trading days, subject to certain exemptions. 73 Having taken into account the factors in s 10(3), I am satisfied that the correct and preferable decision is that an exemption should not be granted to Bunnings permitting it to trade on Easter Sunday. While I accept that there may be a benefit for some customers in being able to shop at Bunnings on Easter Sunday and for some Bunnings employees who wish to take the opportunity to earn additional income, there is, in my view, no 'need' for Bunnings to be open on Easter Sunday, especially given that it will be open on Easter Saturday and Easter Monday. There is no evidence to suggest a beneficial effect on the local economy, although I accept greater expenditure may be of overall benefit to the national economy at a time of impending recession. The main benefit is likely to be a commercial one for Bunnings. Easter Sunday is one of only four and a half days in the year on which Parliament has determined, after a recent review, that most shops must be closed. The reason for Parliament so determining, discussed above, is the special significance of these days in the Australian calendar. I am not satisfied from my review that Bunnings have established a case for the exemption sought. Decision 74 The decision under review is affirmed.

Davis v Department of Commerce & anor

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