Shop, Distributive & Allied Employees Association v Minister for Industrial Affairs

On 9 August 1994, the respondent Minister announced a scheme to alter the trading hours of shops in Adelaide which, so far as is relevant, was as follows:

Sunday trading will be permitted in the Central Shopping District (Adelaide city centre) only from 11.00 am until 5.00 pm.

The proposed changes to retail industry trading hours will be introduced from 1st November 1994.

[N]on exempt retailers will also be able to apply for and obtain Section 5 Certificates of Exemption to permit the limited extended Sunday retail trading announced in this statement.

The s 5 certificates of exemption referred to are certificates issued pursuant to s 5 of the Shop Trading Hours Act 1977 SA (the Act) which relevantly provides as follows:

(1) The Minister may issue a certificate of exemption to a shopkeeper in relation to a shop specified in the certificate.

(2) A certificate issued under this section will be subject to such restrictions and conditions as are specified in the certificate.

The appellant union sought a declaration that certificates of exemption issued pursuant to s 5 of the Act for the purpose of establishing general Sunday trading in the Central Shopping District would be invalid. The union also sought an injunction restraining the Minister from issuing such certificates of exemption. The Supreme Court of South Australia, by a majority (Mohr and Olsson JJ, Debelle J dissenting), refused to grant the relief sought. It is from that decision that the union appeals to this Court.

It is necessary to refer to other sections of the Act to understand the part which certificates of exemption play in the legislative scheme. Under s 6(1), the Act applies to any shop situated within a shopping district. It defines various shopping districts of which the Central Shopping District is one: s 4(1). Closing times for shops in the Central Shopping District are specified as 6 pm on every weekday other than a Friday, 9 pm on a Friday and 5 pm on a Saturday: s 13(1). Except as otherwise provided, every shop must be closed no later than the closing time on each day and remain closed for the remainder of that day: s 14(1). Except as otherwise provided, every shop must be closed during the whole of each Sunday: s 14(3). Failure to comply with closing times is an offence: s 14(6). Various types of shops, mostly small shops, are defined as exempt shops, but one category of exempt shops is that of a shop "in relation to which a certificate of exemption, issued by the Minister, is in force": s 4(1).

Section 13, in addition to specifying closing times, provides:

(6) Subject to subsection (7), the Governor may, by proclamation, order that the closing times specified in subsection (1) or such other closing times as are specified in the proclamation apply, as from a time specified in the proclamation, in any shopping district or part of a shopping district specified in the proclamation and those closing times will apply accordingly -

(a) until the date (if any) specified in the proclamation as the date at which the proclamation is to cease to have effect; or

(b) until the publication in the Gazette of a proclamation revoking that proclamation,

(7) A proclamation under subsection (6) cannot be made unless the Minister -

(a) is satisfied that a majority of interested persons desire that the proposed proclamation be made; and

(a) persons resident in the relevant shopping district, or part of a shopping district; and

(b) shopkeepers and shop assistants who work in shops within that shopping district or part of a shopping district.

(9) The Governor may, by proclamation, authorize the opening of shops during hours, specified in the proclamation, when it would otherwise be unlawful to open those shops.

(a) may relate to shops generally or to a specified shop or to specified classes of shops;

(b) may apply generally throughout the State or in specified shopping districts or in a specified part of a shopping district or in other parts of the State;

(c) cannot operate in respect of a period greater than one month; and

(11) Notwithstanding any other provision of this Act, it is lawful for a shop to be open in accordance with a proclamation under subsection (9).

(12) The Governor may, by proclamation, require shops to be closed at times when it would otherwise be lawful to open those shops.

(a) will stipulate the times during which shops must be closed;

(b) may relate to shops generally or to a specified shop or to specified classes of shops;

(14) Notwithstanding any other provision of this Act, it is unlawful for a shop to be open in contravention of a proclamation under subsection (12).

Section 14(11) provides that in any proceedings for an offence against that section, it is a defence for a defendant to prove that at the time of the alleged offence and throughout the period of seven days immediately preceding that time, the shop, in relation to which the alleged offence was committed, was an exempt shop.

The effect of s 13 is that the Governor may alter closing times generally by proclamation, but may only do so where the Minister certifies that a majority of interested persons desire that the proclamation be made. She may by proclamation extend shopping hours beyond the closing times provided without consulting interested persons, but the extension cannot operate for more than a month. And she may by proclamation reduce shopping hours by requiring earlier closing times.

The appellant union contends that, having regard to the powers vested in the Governor under s 13 and the qualifications upon the exercise of those powers, s 5 does not authorise the Minister, by means of certificates of exemption, to establish a regime of shopping hours which is different from that provided by the legislature. The Minister contests that proposition and submits that the union lacks the necessary interest to give it standing in the matter. In raising the question of standing the Minister does not rely on the fact that the union is an association. The submission is put on the basis that the union has the same interest as its members.

The question of standing may be disposed of shortly. The union has a large number of members who are employed as shop assistants, many of them in the Central Shopping District. The Act confers no private rights and neither those employed as shop assistants in the Central Shopping District nor the union can have standing to bring an action to compel observance of the Act - to prevent the violation of a public right - unless they can establish the existence of a special interest in the subject matter of the litigation. That is in accordance with the rule established in Australian Conservation Foundation v The Commonwealth [1] which was stated by Gibbs CJ in Onus v Alcoa of Australia Ltd to be as follows [2] :

A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action. The rule is flexible and the nature and subject matter of the litigation will dictate what amounts to a special interest [3] . 1. (1980) 146 CLR 493. 2. Onus (1981) 149 CLR 27 at 35-36. 3. Onus (1981) 149 CLR 27 at 36.

In this instance the subject matter of the litigation is shop trading hours in the Central Shopping District. The Minister contends that the change in shopping hours which the certificates of exemption are intended to effect will affect the whole community in various ways and that the shop assistants concerned have no special interest in that subject matter. However, it is clear to our minds that the shop assistants employed in the Central Shopping District have an interest in the trading hours of the shops in which they are employed which is different from and greater than that of other members of the public. Obviously no shop assistant is uniquely affected by a change in shopping hours, but it is sufficient if those concerned have a special interest as a particular class [4] .

The special interest which shop assistants employed in the Central Shopping District have in the trading hours of the shops in which they are employed is because any alteration in those hours necessarily affects the terms and conditions of their employment. Legislation regulating shop trading hours in South Australia arose from the need to protect employees from being required to work for excessively long periods. Originally provisions were to be found in the Industrial Code 1967 SA but these were repealed in 1977 and replaced by the Shop Trading Hours Act following an inquiry into shop trading hours and ancillary matters. Clearly the introduction of Sunday trading by shops in the Central Shopping District would have an impact upon the times at which shop assistants in that district work and upon the number of persons, whether permanent or casual, required to work.

Indeed, the interest of shop assistants in trading hours is recognised by their inclusion in the definitions of interested persons in ss 12(7) and 13(8) of the Act. Their inclusion in the former definition requires them to be given an opportunity to express their views before a shopping district is proclaimed, varied or abolished under s 12. Their inclusion in the latter definition requires their views to be obtained in relation to the alteration of closing times by proclamation under s 13(6). The union contends that to bypass that procedure by issuing certificates of exemption for the purpose of altering trading hours generally points to the invalidity of those certificates.

For these reasons we are of the opinion that the union has, upon the basis conceded by the Minister, the interest necessary to give it standing in this matter.

In fact, a number of certificates of exemption in the same form have been issued pursuant to the decision of 9 August 1994 to enable shops in the Central Shopping District to engage in Sunday trading. The form adopted has been for the Minister to certify that the premises in question:

are exempted from the provisions of the said Act between the hours of 11am and 5pm on each Sunday (excluding Christmas Day and Easter Sunday) after 1 November 1994 subject to the following conditions: -

1. Existing employees shall not be required to work on a Sunday, unless on a voluntary basis only.

2. All relevant Award or Enterprise Agreement conditions be observed.

It is to be noted that the certificate purports to exempt the shop to which it applies from the provisions of the Act only between certain hours on each Sunday. It appears to envisage that at all other times the Act will apply to the shop so that it will be required to observe the closing hours laid down in s 13.

The Act does not specify the consequences of issuing a certificate of exemption pursuant to s 5 save that, as we have observed, it is a defence under s 14(11) to any prosecution for failure to observe closing times for a defendant to prove that at the time of the alleged offence and during the prescribed preceding period the shop concerned was an exempt shop. Since an exempt shop is relevantly defined as "a shop in relation to which a certificate of exemption, issued by the Minister, is in force", the question immediately arises whether the defence made available by s 14(11) applies to a failure to observe the prescribed closing times for the shops in question, not only on Sundays, but at any other time, despite the attempt to limit the scope of the exemption. It is unnecessary to pause to answer that question, but clearly the answer may throw light upon the nature of the exemption of an exempt shop.

In an Act dealing with shop trading hours, the use of the word "exempt" without qualification indicates in our view an intention that an exempt shop should stand outside the regime with respect to shop trading hours which the Act lays down. The use of that word certainly does not suggest that the power to issue a certificate of exemption was intended to be a power to lay down an alternative regime in relation to trading hours. True it is that a certificate of exemption may be subject to specified restrictions and conditions, but a partial exemption, that is, an exemption confined to particular hours on a particular day of the week, can hardly be regarded as a complete exemption subject to a restriction or a condition. The type of restriction or condition contemplated by s 5 may be seen from the restrictions or conditions imposed by the certificates in this case. Moreover, in the definition of exempt shop in s 4(1), all of the categories of exempt shops, apart from that in question, are defined, not by reference to trading hours, but by reference to such considerations as floor area and the nature of the goods or services offered for sale. It would be incongruous if the category of exempt shops constituted by "a shop in relation to which a certificate of exemption, issued by the Minister, is in force" could be afforded a partial exemption defined by reference to trading hours. Furthermore, specific provision is made by s 13a for the Minister to grant a permit to certain types of hardware shop to trade on Sundays and other public holidays. Similar provision is made in s 17 for the Minister to grant licences permitting the sale of motor spirits and lubricants on Sundays and other public holidays. Those provisions would be unnecessary were s 5 to be construed as the Minister seeks to construe it.

But the strongest indication that the power given to the Minister to issue certificates of exemption does not extend to their use for the purpose of laying down shop trading hours in a shopping district is to be found in s 13. That section provides a means for the alteration by executive act of opening and closing times. Not only does it so provide, but where hours of trading are to be extended, interested persons are to be consulted unless the extension is confined to a period of one month. Understandably, having regard to the Act's concern for employees, where trading hours are to be reduced, the section does not impose any restriction. If it were possible to issue certificates of exemption prescribing shop trading hours which were different from those required by the Act, those protections which s 13 affords to interested persons might be bypassed and this can scarcely have been the intention of the legislature.

In our view, the power vested in the Minister by s 5 of the Act is a power to issue a certificate of exemption which exempts a shop from the operation of the Act in the same manner as other exempt shops. The power does not extend to relieving a shopkeeper from the observance of the required trading hours only on a particular day of the week and then only within certain hours on that day. Such an exemption (if it can be called an exemption at all) is only partial. A partial exemption is something which the Act does not envisage. In any event, the power should not be construed as allowing the Minister to effect an alteration of shop trading hours within a shopping district. The means of effecting such an alteration are contained in s 13 of the Act and, having regard to the protections afforded by that section, s 5 cannot properly be regarded as intended to provide an alternative means.

It should be added that even if s 5 did in some way vest in the Minister a discretion to prescribe shop trading hours by the issue of certificates of exemption, it would be a wrongful exercise of that discretion to issue certificates in pursuance of a scheme to vary or displace the shop trading hours prescribed by the Act in a shopping district [5] . It would be wrong to do so because the shop trading hours prescribed by the Act are the very thing from which there may be an exemption. But there is no exemption when different shop trading hours are prescribed by a certificate of exemption; what purports to be an exemption in fact becomes a prescription itself [6] . In other words, the discretion vested in the Minister by s 5 is for the purpose of exempting a shop from the observance of the trading hours laid down by Parliament or by proclamation. Any discretion vested in the Minister by s 5 must be exercised for the purpose for which the discretion is conferred [7] . The power conferred by s 5 may not be exercised for the purpose of laying down the trading hours to be observed generally in a shopping district [8] .

1. See Shanahan v Scott (1957) 96 CLR 245 at 250. 2. cf Macbeth v Ashley (1874) LR 2 Sc & Div 352. 3. See Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at 757-758. 4. See Shrimpton v The Commonwealth (1945) 69 CLR 613 at 620; R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189, 205.

For the foregoing reasons, it is our view that the certificates of exemption which the Minister has purported to issue pursuant to s 5 are beyond power. The parties are agreed that, in the event of the Court reaching that conclusion, it should declare that the certificates of exemption issued by the Minister pursuant to s 5 of the Act for the purpose of establishing general Sunday trading in the Central Shopping District in accordance with the ministerial statement of 9 August 1994 are invalid. We would make that declaration.