Trading (Allowable Hours) Act 1990

The Act builds on several interconnected concepts that determine which trading regime applies to a particular business. The central distinction is between exempt shops and non-exempt shops. An exempt shop under section 5(1) is a shop of a description mentioned in schedule 1AA used predominantly for selling goods by retail or supplying services a reasonable person would expect to be sold or supplied in that shop; an independent retail shop; or a shop operating in an area to which a special event declaration applies. Schedule 1AA is not reproduced in the text provided but is referenced as containing the list of shop descriptions that qualify as exempt. Critically, subsection 5(3) provides that if goods are sold wholesale in an exempt shop, the provisions of the Act apply to that shop as if it were not an exempt shop for those wholesale sales.

Independent retail shops are defined in considerable detail in section 6. The definition has four cumulative conditions: the business must be wholly owned by a natural person, partnership, or proprietary company that is not a related body corporate under the Corporations Act section 50; the number of persons engaged at any one time in the shop must not exceed 30 (including owners); the total number of persons engaged by that owner in all shops (exempt or non-exempt) statewide must not exceed 100; and the business must not be conducted in a shop or part used for the conduct of a non-exempt shop at a time that non-exempt shop is required to be closed. Subsection 6(2) excludes from independent retail shop status any shop that is an exempt shop under section 5(1)(a) or (c), an office, a business that sells goods wholesale or motor vehicles or caravans (wholly or partly), or a stall in a market.

Subsections 6(3) through 6(5) contain an anti-avoidance provision dealing with business conducted in two or more areas within a building. If circumstances would reasonably lead a person to believe the businesses are in fact part of one business conducted by the same person or partnership, none of those areas is an independent retail shop unless all areas together would satisfy the independent retail shop definition. Section 6(4) lists six circumstances that are evidence of the reasonableness of such a belief, including absence of floor-to-ceiling walls separating areas, availability of interconnecting access without passing through common area or through structurally defined exits, shared financial arrangements, common accounting systems, and advertising that does not indicate separate proprietors. Section 6(5) clarifies that no person needs to have actually formed such a belief and that the listed circumstances are not exhaustive.

Non-exempt shops are subject to core trading hours under Part 4 Division 2. The Act creates a four-tier classification of trading areas that determines the permissible hours. Type 1 trading areas include specific locations like the Area of New Farm of Inner City of Brisbane, Gold Coast Coastal Tourist Area, Hamilton North Shore Area, Mossman and Port Douglas Tourist Area, The Cairns CBD Area, The Great Barrier Reef Wonderland Tourist Complex, and the Pacific Fair Shopping Centre, plus any area declared in a trading area order. Type 2 trading areas comprise the South-East Queensland Area (excluding parts that are type 1) and areas declared by order. Type 3 trading areas are those listed in schedule 1AB and areas declared by order. Type 4 trading areas are all other areas not classified as type 1, 2 or 3.

Closed days are defined in section 16A as Good Friday, Anzac Day (25 April), Labour Day (the first Monday in May), and Christmas Day (25 December). On these days, non-exempt shops generally cannot trade at all. Hardware shops have more generous hours than general retail shops under section 16E, opening at 6 a.m. in all areas. Motor vehicle and caravan sellers have their own distinct schedule under section 16EA, with different rules depending on whether they sell motor vehicles only, caravans only, or both, and with a defined set of prescribed areas where Saturday and public holiday hours are extended.

The industrial commission may make trading area orders under section 21 to declare areas as type 1 or 2, change external boundaries, or declare new areas as type 1, 2 or 3. However, section 21(2) prohibits the commission from making an order that would reduce core trading hours for non-exempt shops in the area. Section 21A (as reconstructed) allows the president to refer matters to the full bench. The commission must consider various criteria under section 22 including location, industry needs, effect on core trading hours, population growth, impact on employees and employment, business and consumer interests, the public interest, and views of local government.

Special event declarations under sections 31A and 31B allow the industrial commission to declare an event to be a special event, which then makes shops in the declared area exempt shops for the period of the event. The commission must consider whether the event is unique or infrequent of local, state or national significance (examples given are the 2032 Olympic and Paralympic Games and the Weipa Fishing Classic), its cultural, religious or sporting significance, significance to economy and tourism, and whether there is need for extended trading hours. Further considerations include the size and location of the event, predicted attendance, media coverage, contribution to Queensland's reputation, and submissions from local government or industrial organisations.

The Act imposes legal obligations and confers rights on a broad range of persons and entities. The primary duty-bearers are occupiers of non-exempt shops, who must ensure their shops are closed outside permitted trading hours under section 16B, with a maximum penalty of 40 penalty units. Occupiers of independent retail shops must cause their shops to close on Christmas Day and Good Friday (for shops not predominantly selling food or groceries) and on Anzac Day until 1 p.m. under section 17. Occupiers of banking and insurance offices must close on bank holidays under section 20, with personal liability for anyone who authorises, directs or aids a failure to close.

Employers of employees in non-exempt shops are affected by the employee protection provisions in sections 36A through 36BA. Section 36B prohibits requiring an employee to work during extended hours (hours greater than the shop's permitted trading hours immediately before the commencement of the 2017 amendments) unless the employee has freely elected to do so in writing for a stated or indefinite period. Section 36BA extends this protection to situations where core trading hours increase due to legislative amendment, a trading area order taking effect, or a special event declaration making a shop exempt. An employee has not freely elected if coerced, harassed, threatened or intimidated, or merely because rostered or required under an industrial instrument. Penalties are 16 penalty units for a first offence and 20 for subsequent offences.

Employees themselves have certain protections including the right to refuse to answer questions that would incriminate them under section 12, notwithstanding any other provision of the Act. They may have the benefit of the holiday provisions in section 33 for Anzac Day subject to the extensive exceptions listed in subsection 33(2). The Act does not impose duties directly on employees except that section 39 makes it an offence to obstruct an inspector.

Industrial inspectors are central to the enforcement scheme. Section 8 confers extensive powers including entry to any place used or suspected to be used as a shop, or where a contravention is suspected, at any time subject to section 9's limitation on private dwellings. Inspectors may question any person found, require truth answers and declarations, inspect time sheets and pay sheets, require production of records relating to occupancy entitlements and financial arrangements between proprietors, require name and address, and institute proceedings. Subsection 8(2) specifically authorises questioning employees out of the presence and hearing of their employer or supervisor, which is a significant workplace protection. Inspectors have a duty under section 10 to secure compliance and must report breaches to the chief industrial inspector.

Occupiers of factories, shops or places of public amusement and their agents and employees must under section 11 furnish reasonable assistance and information as lawfully required by an inspector. Failure to comply constitutes an offence under section 39.

Local governments are affected as they may apply for trading area orders under section 23(1)(b), be given notice of meetings, and apply for leave to appear and be heard. Their views must be considered under section 22(h) if they are an applicant or granted leave. They may also apply for special event declarations under section 31A(1). A local government licence for a place of public amusement is deemed by section 35(2) to contain an implied condition not to contravene the Anzac Day closure provisions, and breach is a matter for cancellation or suspension proceedings.

Industrial organisations and other organisations have standing to apply for trading area orders under section 23, may lodge notices of objection to cancellation of obsolete orders under section 31, may seek injunctions under section 36C, and may have their submissions considered in special event declaration applications under section 31B(2)(f)(ii).

The industrial commission exercises quasi-judicial functions under Part 5, making trading area orders, special event declarations, and granting injunctions. The full bench may hear matters referred by the president under section 23A. The industrial registrar has administrative functions including granting or refusing leave to appear (section 23(6)-(7)), referring objections to the commission (section 31(3)), and publishing repealed orders on the QIRC website (section 46A).

Bodies corporate face higher penalties of 200 penalty units under section 42. Section 44 extends liability to members of the governing body and persons who manage or participate in management or control of the body corporate's business in Queensland. Section 45 makes principals and employers vicariously liable for offences committed by agents or employees, unless they prove they had no knowledge and could not by reasonable diligence have prevented the offence.

Persons publishing advertisements are affected by section 37, which prohibits statements that suggest or imply a factory or shop will be open or conduct business outside allowable trading hours. The publisher and the occupier both commit an offence. However, section 37(4) provides that a person other than the occupier cannot be prosecuted unless they have first been warned by an inspector and continued publication, and the Minister consents.

The Act imposes a central duty on occupiers of non-exempt shops under section 16B(1): the shop must be closed other than during core trading hours (under subdivision 2) or extended trading hours (under subdivision 3). The occupier must ensure compliance, with a maximum penalty of 40 penalty units. The core trading hours vary by shop type and location as detailed in sections 16D (general shops), 16E (hardware shops), and 16EA (motor vehicle/caravan sellers). Extended Christmas trading hours under section 16F apply generally for the three Sundays before 18 December (8 a.m. to 6 p.m.), 18 to 23 December (the shop's standard opening time to midnight), and 24 December (standard opening time to 6 p.m.). Section 16G provides even longer hours for Westfield Chermside and Westfield Garden City shops, with 23 December 8 a.m. to midnight and 24 December midnight to 6 p.m.

For independent retail shops, section 17 provides that there is no prescribed opening or closing time generally, but the occupier of an independent retail shop (other than one predominantly selling food or groceries) must close on Christmas Day, Good Friday (all day), and Anzac Day until 1 p.m. Section 17(3) importantly provides that if a substitute public holiday is declared under the Holidays Act 1983 for one of these days, the substitution does not apply for the purposes of this section, meaning the actual date must be observed.

Section 19 prohibits hawking goods, exhibiting/exposing samples, taking orders, selling by retail or auction at a locality on days or during hours when a non-exempt shop in which those goods are sold at that locality would be required to be closed. This prevents circumvention of trading hour restrictions through street trading, sample selling, or auctions. However, section 19(2) exempts bazaars, fairs and sales of work for religious, charitable, educational or other purposes from which no private profit is derived, and the normal conduct of business of an exempt shop.

The bank holiday closure duty under section 20 requires the occupier of a banking or insurance office to close on prescribed bank holidays under the Holidays Act 1983. The section contains extensive notes explaining that every Saturday is a bank holiday in Queensland, but the effect of section 20 is to allow banks to open on most Saturdays while permitting them to choose whether to conduct dealings under the Bills of Exchange Act 1909 (Cwlth). Subsection 20(3) exempts banks from the closure requirement on Saturdays unless the Saturday is a public holiday or falls on 1 January, 26 January, 25 December or 26 December (regardless of substituted holidays), and also exempts banks operating at annual shows.

The Anzac Day provisions create several duties. Section 33(1) requires that an employee in a factory or shop be given a holiday for the whole of Anzac Day, with the extensive exceptions listed in subsection 33(2). Section 34 prohibits conducting the business of selling real estate on Anzac Day, with a maximum penalty of 40 penalty units. Section 35(1) requires the occupier of a place of public amusement to cause it to be closed until 1.30 p.m. unless the Minister gives written permission. Section 36 requires factories and shops to be closed for the whole of Anzac Day, with exceptions matching section 33(2)(b)-(h).

Employee protection rights are a significant feature. Section 36B (for 2017 amendments) and section 36BA (for later increases in core trading hours or special event declarations) prohibit employers from requiring employees to work during extended hours unless the employee has freely elected to do so in writing for a stated or indefinite period. An election is not free if made because of coercion, harassment, threats or intimidation, or merely because of rostering or industrial instrument requirements. Section 12 protects any person from being required to answer a question if the answer would incriminate them in any offence. Section 8(2) gives employees the right to be questioned out of the presence and hearing of their employer or supervisor.

Industrial inspectors have extensive rights under section 8 to enter premises (subject to section 9's private dwelling limitation), question persons, require truth declarations, examine and copy records, require production of occupancy and financial records, require name and address, and institute proceedings. Section 11 gives inspectors the right to require reasonable assistance and information from occupiers and their agents and employees.

Section 13 provides a right of protection from civil liability for officials (the Minister and industrial inspectors) for acts done honestly and without negligence, with liability attaching instead to the State. This is an important shield for enforcement officers.

The Act also confers procedural rights. Section 43(2) gives a person aggrieved by a decision of the industrial court on a prosecution for breach of an injunction the right to appeal to the Court of Appeal. Section 44(3) provides a defence for an employee who committed an offence under the express direction of their employer. Section 45(4) provides a defence for a principal charged vicariously that they had no knowledge of the offence and could not by reasonable diligence have prevented it.

The Act establishes a graduated penalty structure and multiple enforcement mechanisms. Section 42 sets the maximum pecuniary penalties: 40 penalty units for an individual and 200 penalty units for a body corporate for any offence against the Act. Specific provisions also carry their own penalties, such as section 16B(2) (40 penalty units for failing to close a non-exempt shop outside permitted hours), section 34 (40 penalty units for real estate sales on Anzac Day), and sections 36A, 36AA, 36B and 36BA (16 penalty units for a first offence and 20 for subsequent offences for requiring employees to work extended hours without free election). At the time of writing, one penalty unit under Queensland law is $161.30 (subject to indexation), meaning individual fines can reach $6,452 and corporate fines $32,260 for general offences, with lesser amounts for employment protection breaches.

Enforcement is primarily through industrial inspectors, who are authorised under section 8(h) to institute and conduct proceedings in the industrial court, industrial commission or an Industrial Magistrates Court. Inspectors have broad investigation powers under section 8(1)(a)-(g), including entry and inspection at any time (subject to section 9's warrant requirement for private dwellings), questioning, examining records, and requiring production of documents relating to occupancy entitlements, business proprietors, and financial arrangements. Section 9(2) allows any justice to issue a warrant on the written complaint of an inspector reasonably believing premises are such that entry is authorised, with the warrant remaining in force for one month.

Proceedings are dealt with under section 43. Prosecutions for breach of an industrial commission injunction must be taken in the industrial court, with a right of appeal to the Court of Appeal. All other prosecutions are taken in a summary way before an Industrial Magistrates Court. The provisions of the Industrial Relations Act 2016 governing proceedings, representation, powers, appeals, and Crown entitlement to intervene apply, and jurisdiction is conferred on the industrial court, commission and industrial magistrates to hear all duly brought proceedings.

Section 36C provides a powerful enforcement tool: the industrial commission may grant mandatory or restrictive injunctions on application by an industrial inspector, or by an industrial organisation, other organisation, or local government aggrieved, to enforce compliance with or restrain breaches of the Part 4 Division 2 trading hours. The commission has discretion over notice and service, including substituted service by advertisement.

Vicarious and extended liability provisions significantly expand enforcement reach. Section 44(2) provides that where an offence is committed in relation to a factory, shop or place of public amusement with more than one occupier, each occupier is liable. Section 44(2) (as amended in 2013) extends liability to members of the governing body of a body corporate and persons who manage or participate in management or control of the body corporate's business in Queensland. Section 45(2) provides that where an offence is committed by an agent or employee, the principal or employer is taken to have committed the offence and may be charged in addition to the actual offender, regardless of whether the offence was committed without authority or contrary to instructions. The only defence under section 45(4) is that the defendant had no knowledge and could not by reasonable diligence have prevented the offence. Subsection 45(1) provides that this section applies notwithstanding the Criminal Code section 23 (which generally excludes criminal responsibility for acts independent of the person's will).

Section 37 creates an offence for publishing statements calculated to promote business conducted in a factory or shop that state, suggest or imply that outside allowable hours the shop will be open, goods will be sold, or a person will be in attendance to receive orders or requests. Both the publisher and the occupier commit an offence. Notably, section 37(4) protects publishers other than the occupier: they cannot be prosecuted unless they have been warned by an inspector that publication is an offence and continued publishing after the warning, and the Minister consents to prosecution. Section 37(2) provides that the occupier of a factory does not commit an offence merely because goods manufactured at the factory are mentioned by trade name in the statement.

Section 39 prohibits assaulting, resisting, impeding or obstructing an inspector; failing to answer questions or giving false/misleading answers; failing to sign required declarations; failing to comply with lawful requests; failing to furnish assistance or information or furnishing false information; failing to produce permits, time sheets or records; failing to allow examination and copying; preventing anyone from appearing before an inspector; using threatening language; and impersonating an inspector. Section 40 prohibits counterfeiting, forging or fraudulently altering permits or documents issued by the Minister or chief inspector, using such documents knowing them to be false, making false entries in records.

Section 46 contains important evidentiary provisions that facilitate prosecution. Allegations that a defendant was occupier of the premises at the time of the offence are sufficient proof until the contrary is proved. Due appointment of inspectors and their authority are presumed. Signatures purporting to be the Minister's or an inspector's are taken as genuine. Documents purporting to be duplicates or copies of notices or permits are admissible and conclusive evidence of the original. District boundaries and premises location are presumed. Documents purporting to be extracts from the QIRC website containing notification of decisions, declarations or orders are admissible as evidence of lawful making and conclusive evidence of contents. A chief industrial inspector's certificate that an article is such that a reasonable person would expect it to be sold in a shop of a specified description is conclusive evidence in the absence of contrary evidence.

The Act expressly incorporates and interacts with several other statutes. Section 6(1)(a) defines independent retail shop ownership by reference to the Corporations Act, requiring that the business be wholly owned by a proprietary company within the meaning of that Act section 9 that is not a related body corporate under section 50. This cross-reference means the definition of related body corporate in Commonwealth corporations law directly determines eligibility for independent retail shop status. If a proprietary company is a subsidiary of another entity, it cannot qualify, even if it otherwise meets the employee number thresholds.

Section 20 provides for closure of banking and insurance offices on bank holidays prescribed under the Holidays Act 1983. The section contains extensive explanatory notes explaining that section 98 of the Bills of Exchange Act 1909 (Cwlth) regulates times for dealings with bills of exchange, cheques and promissory notes. Under that Commonwealth provision, if a dealing falls due on Christmas Day, Good Friday, a Sunday, or a day prescribed as a bank holiday, the dealing may be conducted on the next business day. The notes further explain that section 5 of the Holidays Act 1983 declares every Saturday a bank holiday in Queensland. The effect of section 20 is to allow banks to open on most Saturdays while choosing whether to conduct the specified dealings on that day. Section 20(3) creates specific carve-outs from the closure obligation for banks on Saturdays unless the Saturday is a public holiday or falls on certain calendar dates (1 January, 26 January, 25 December or 26 December), and for banks operating at agricultural, horticultural or industrial shows.

Section 20A specifically interacts with the Retail Shop Leases Act 1994 by providing that for the south-east Queensland area, the permissible trading hours on a Sunday or public holiday are not allowable trading hours for the definition of core trading hours in section 51 of that Act. This prevents landlords from using extended Sunday or public holiday trading hours as a basis for calculating rent or other lease obligations under retail shop leases.

Part 7 contains multiple cross-references to the Criminal Code. Section 44(1) provides that the section applies and is given effect without prejudice to the application of the Criminal Code section 7 (which deals with parties to offences) and notwithstanding section 23 (which generally excludes criminal responsibility for acts independent of will). Section 45(1) similarly operates despite the Criminal Code section 23. These provisions ensure that the extended liability provisions for multiple occupiers and vicarious liability for principals and employers cannot be avoided by arguing that the act was involuntary or that the principal did not personally commit the act.

Section 43(4) incorporates provisions of the Industrial Relations Act 2016 and its rules governing proceedings in the industrial court, industrial commission or an Industrial Magistrates Court; representation of parties; powers of these bodies; appeals; and the entitlement of the Crown and Minister to intervene. These apply with necessary adaptations and subject to the Act's own provisions. Section 43(5) confers jurisdiction on these bodies to hear all proceedings under the Act.

Section 16AA provides that references to particular areas in Part 4 Division 2 (such as Area of New Farm, Gold Coast Coastal Tourist Area, etc.) are references to those areas within the meaning of the 2017 trading hours order made under former section 21. However, to the extent the area is the subject of a trading area order that is inconsistent with the 2017 trading hours order, the trading area order prevails and the reference must be interpreted consistently with it. This creates a dynamic interaction between the legislative provisions and the commission-made orders.

Section 17(3) provides that if a substitute public holiday is declared under the Holidays Act 1983 for Christmas Day, Good Friday or Anzac Day, the substitution does not apply for the purposes of that section. This means independent retail shops must close on the actual date, not on the substituted public holiday, which is an important distinction for business planning.

Section 23A(5) provides that it does not limit section 486 of the Industrial Relations Act 2016, preserving other referral powers. The moratorium and transitional provisions in Part 8 interact with the amendment Acts cited throughout the annotations.

Sections 44 and 45 reference the Criminal Code sections 7 and 23, and section 45(1) applies despite section 23. Section 46(g) makes documents purporting to be extracts from the QIRC website admissible as evidence of the lawful making of decisions or orders, relying on the QIRC website as the authoritative publication platform under various provisions.

Section 48 (transitional) provides that extension of trading hours due to the 1994 amendments or industrial commission orders is not intended to imply that extended hours are to be ordinary-rate hours under an award, preserving the distinction between ordinary time and penalty rates under industrial instruments.

The Act also interacts with the Racing Act 2002, Wagering Act 1998, Liquor Act 1992, and Wine Industry Act 1994 through the Anzac Day exceptions in section 33(2)(b)-(d), which exempt certain licensed venues and wagering offices from the holiday requirement.

The Act has been amended extensively since its enactment in 1990. The textual annotations reveal amendments in 1994 (two Acts - No. 23 and No. 24), 1995 (No. 4 and No. 57), 1997 (No. 1, schedule 4), 1998 (No. 45), 1999 (No. 83), 2000 (No. 5, schedule 2), 2001 (No. 45, schedule 3), 2002 (No. 3 and No. 9), 2004 (No. 45), 2005 (No. 11), 2009 (No. 38), 2011 (No. 44), 2013 (No. 56, No. 61 and No. 51), 2015 (No. 13), 2016 (No. 12 and No. 63), 2017 (No. 5 and No. 26), 2018 (No. 1), and 2022 (No. 17). The 1994 amendments were particularly significant, inserting new sections, substituting definitions, and restructuring the Act. The current section 4 (definitions) was inserted in 1994 and now directs readers to schedule 1 (Dictionary). Many original sections were omitted over time, including sections 1.4, 1.5, 1.6, 3.1, 3.10, 3.11, 5.11, 5.12, 5.13, 14, 15, and 18.

The most substantial structural reforms occurred in 2017 with the Trading (Allowable Hours) Amendment Act 2017 (No. 26). This Act repealed the existing trading hours orders made under former sections 21 and 22 and replaced them with the current statutory trading hour schedules in sections 16D, 16E and 16EA. It inserted the definitions of closed days, hardware shops, and the 2017 trading hours order in section 16A. It introduced extended Christmas trading hours in sections 16F and 16G. It amended section 19 to update references and inserted the employee protection provision in section 36B. It also inserted Part 8 Division 6 with transitional provisions including a five-year moratorium on making new trading hours orders (section 59), special treatment for the Mossman and Port Douglas Tourist Area (section 56), and detailed rules for existing applications and appeals (sections 60-63).

The Trading (Allowable Hours) and Other Legislation Amendment Act 2022 (No. 17) made further significant changes. It removed the definitions of south-east Queensland area and tourist area from section 16A, inserted section 16AA dealing with references to particular areas, introduced the concept of trading area orders to replace the earlier order-making regime, inserted Part 5 Division 3 on special event declarations (sections 31A and 31B), and substantially rewrote section 21. It inserted section 36BA to provide employee protection when core trading hours increase due to legislative amendment, trading area orders, or special event declarations. It added Part 8 Division 7 with a new moratorium period (from commencement until 31 August 2023) during which no trading area orders could be made, and transitional provisions for existing event declarations and applications.

The annotations also show that sections 31A, 31B and 31BA from the 2002-era south-east Queensland provisions were omitted in 2017. Section 49 (transitional) was reinserted multiple times with expiry dates for various earlier versions, reflecting the Act's use for temporary transitional arrangements.

The source text does not name any specific cases. The Act contains provisions that would likely generate litigation, particularly around the definition of independent retail shop (section 6), the trading area classification system, and the employee protection provisions. The evidentiary provisions in section 46, particularly the presumptions about occupier status, inspector appointment and authority, and the conclusive effect of chief inspector certificates, are clearly designed to reduce litigation burdens. The provision in section 46(a) that an allegation a defendant was occupier is sufficient proof until the contrary is proved shifts the evidentiary burden onto defendants. The extensive anti-avoidance provisions in section 6 subsections (3)-(5) for multi-area businesses within buildings likely reflect judicial or enforcement experience with businesses attempting to structure themselves as separate entities to qualify as independent retail shops. Similarly, the detailed list of circumstances evidencing reasonableness of belief in section 6(4) (absence of walls, interconnecting access, common financial arrangements, common accounting, advertising not indicating separate proprietors) suggests legislative response to fact patterns from litigation. The moratorium provisions and transitional rules for existing applications and appeals in Part 8 Divisions 6 and 7 (sections 59-63, 66-69) show that the 2017 and 2022 amendments were enacted with careful attention to pending proceedings. Section 61 deals with appeals against decisions on applications for orders under former section 21 that were started but not decided before the commencement, limiting the court's power to substitute only a decision prescribing 9 a.m.-6 p.m. Sunday/public holiday hours for prescribed section 16D shops. Section 62 prohibits starting any appeal after commencement against decisions made before commencement, with a narrow exception for refusal to prescribe those specific hours. These provisions indicate that there were existing appeals and applications in the system that the legislature wanted to resolve or cut off through the amendments.

Several provisions in the Act contain traps for the unwary practitioner or business operator. The definition of independent retail shop in section 6 is particularly treacherous. Subsection 6(1)(b) requires that the number of persons engaged at any one time in the shop not exceed 30, including owners. This headcount includes not just employees but also owners and anyone else engaged in the shop at any one time. A part-time employee working at the same time as a full-time roster counts toward the 30. Subsection 6(1)(c) imposes a separate statewide limit of 100 persons engaged at any one time by the owner across all shops (exempt or non-exempt) in Queensland. This includes the owner as well, meaning a business owner who works in multiple locations could inadvertently breach the 100-person limit if they are counted at each location simultaneously.

Subsection 6(1)(d) contains a further trap: the business for which the shop is maintained must not be conducted in a shop or part used for the conduct of a non-exempt shop at a time when the non-exempt shop is required to be closed. This means an independent retail shop cannot be located within a larger non-exempt shop and operate during hours the non-exempt shop is closed. Even if the independent retail shop satisfies all other conditions, sharing premises with a closed non-exempt shop disqualifies it.

The anti-avoidance provisions in subsections 6(3)-(5) are broad and subjective. If a building has multiple areas that could reasonably be believed to be part of one business, none is an independent retail shop unless taken together they would satisfy the definition. The six listed circumstances (absence of walls, interconnecting access, shared financial arrangements, common accounting, advertising not indicating separate proprietors) are expressly non-exhaustive, and no person needs to have actually formed the belief. This means an inspector or court can apply an objective reasonable observer test to look through separate business structures.

A key nuance regarding independent retail shops is that section 17(3) provides that substitute public holidays under the Holidays Act 1983 do not apply for the purposes of the section. So if 25 December falls on a Saturday and the declared public holiday is 27 December, the independent retail shop must still close on 25 December (the actual date) as well as on the substituted holiday if it would otherwise be operating. This is easy to overlook.

For non-exempt shops, the trading area classification system in section 16D is critical and location-specific. A shop in the South-East Queensland Area that is not in a type 1 area defaults to type 2, meaning Monday-Friday 7 a.m.-9 p.m., Saturday 7 a.m.-9 p.m., Sunday and public holidays 9 a.m.-6 p.m. But if that shop is in the Area of New Farm of Inner City of Brisbane, it is type 1 with longer hours: Monday-Friday 6 a.m.-10 p.m., Saturday 7 a.m.-10 p.m., Sunday and public holidays 7 a.m.-9 p.m. Getting the location wrong could result in inadvertent trading outside permitted hours, which is an offence. Section 16AA provides that references to these areas are to the areas within the meaning of the 2017 trading hours order, unless a trading area order is inconsistent, in which case the trading area order prevails. The 2017 trading hours order is not in the Act itself, so practitioners must locate it separately on the QIRC website.

Hardware shops have their own schedule under section 16E that is more generous across all areas. However, the definition of hardware shop in section 16A is narrow: a shop whose business is wholly or partly the supply of construction materials, tools, fittings and other appropriate products and equipment to builders, tradespeople, contractors, subcontractors or the general public, or similar products for home improvement. A shop that sells some hardware items but whose main business is something else may not qualify.

Motor vehicle and caravan sellers under section 16EA have different rules depending on the mix of sales. A shop selling motor vehicles but not caravans has different Saturday closing times (6 p.m. in prescribed areas, 5 p.m. otherwise) and is completely prohibited from trading on Sundays and most public holidays (unless in a prescribed area where public holiday trading is permitted 8 a.m.-6 p.m.). A shop selling both has the Sunday/public holiday prohibition but Friday until 9 p.m. and Saturday until 5 p.m. A shop selling only caravans has Saturday until 6 p.m. but no Sunday or public holiday trading.

Section 19's prohibition on hawking goods, selling by retail, exhibiting samples, or selling by auction at a locality during hours when a non-exempt shop at that locality would be required to close is broader than it might appear. It catches not just street vendors but also sample exhibitions and auctions. The exemption for bazaars, fairs and sales for charitable purposes is limited to those from which no private profit is derived, so a commercial market or fair would not qualify.

Section 37's prohibition on soliciting business outside trading hours through published statements is extremely broad. A statement is taken to have been published if communicated by action, spoken or written word, or pictorial or visual representation. Social media posts, emails, and even verbal announcements could fall within the definition. The offence catches not only the publisher but also the occupier of the shop whose business is promoted. However, the publisher (if not the occupier) has a procedural protection: they must first be warned by an inspector and continue publishing, and the Minister must consent to prosecution. The occupier has no such protection and can be prosecuted directly.

The employee protection provisions in sections 36B and 36BA require the employee to freely elect in writing for a stated or indefinite period. An election is not free if the employee was coerced, harassed, threatened or intimidated, or merely because rostered or required under an industrial instrument. This means an employer cannot simply roster an employee for extended hours and rely on the roster as consent. The written election must be genuinely voluntary and obtained without pressure. The penalties apply for each offence, with higher penalties for second or later offences.

Section 44(2)'s extension of liability to members of the governing body of a body corporate and persons who manage or participate in management or control of the business means company directors and senior managers can be personally liable for offences committed by the company, even if they did not personally participate in the specific contravention. Combined with section 44(1) which operates despite the Criminal Code section 23, this is a powerful provision.

The evidentiary provisions in section 46 are strongly pro-prosecution. Section 46(a) means the prosecution need only allege that the defendant was occupier to shift the burden of proof. Section 46(h) means a chief industrial inspector's certificate about what goods are expected to be sold in a particular type of shop is conclusive evidence in the absence of contrary evidence, which could be decisive in determining whether a shop is of a particular description.

Compliance with the Trading (Allowable Hours) Act requires a systematic approach to classifying the business, determining applicable trading hours, obtaining employee consent for extended hours, and maintaining records. The first step is to correctly classify the shop. Determine whether it falls within schedule 1AA (exempt shop), meets the independent retail shop definition in section 6, or is a non-exempt shop. For independent retail shop classification, carefully assess ownership structure (no related bodies corporate), employee headcount at any one time in the shop (30 maximum, including owners), total employees statewide engaged by the owner (100 maximum, including owners), and whether the shop is located within or shares premises with a non-exempt shop that must close at particular times. Document the ownership structure and maintain daily employee rosters to demonstrate compliance with the numerical thresholds.

For non-exempt shops, identify the correct trading area classification. Check whether the shop is in one of the named type 1 areas (New Farm, Gold Coast Coastal, Hamilton North Shore, Mossman and Port Douglas, Cairns CBD, Great Barrier Reef Wonderland Tourist Complex, Pacific Fair Shopping Centre) by consulting the 2017 trading hours order on the QIRC website. Check for any current trading area orders that may have modified the boundaries or classification. If the shop is in the South-East Queensland Area but not in a type 1 area, it is type 2. If in an area listed in schedule 1AB, it is type 3. Otherwise, it is type 4, meaning no Sunday trading and restricted public holiday trading. Hardware shops and motor vehicle/caravan sellers should apply the specific schedules in sections 16E and 16EA respectively.

Once the classification and area are determined, establish daily trading schedules that comply with the core trading hours. For type 4 shops, ensure closure on Sundays entirely. For all non-exempt shops, ensure closure on closed days (Good Friday, Anzac Day, Labour Day, Christmas Day). For independent retail shops not predominantly selling food or groceries, close on Christmas Day and Good Friday all day, and on Anzac Day until 1 p.m. Note that substitute public holidays under the Holidays Act 1983 do not apply for the purposes of section 17.

For extended trading during the Christmas period, comply with sections 16F and 16G. For general shops, the three Sundays before 18 December are 8 a.m. to 6 p.m.; 18-23 December are the standard opening time to midnight; 24 December is the standard opening time to 6 p.m. If the shop is in Westfield Chermside or Westfield Garden City, section 16G applies for 23 December (8 a.m. to midnight) and 24 December (midnight to 6 p.m.).

Obtain written agreements from employees who will work during extended hours. Sections 36B and 36BA require that the employee freely elects in writing for a stated or indefinite period. Ensure the election is genuinely voluntary, not coerced, and not merely based on roster or industrial instrument requirements. Keep signed copies on file and maintain records of when the employee began working extended hours. For employees who were current employees immediately before 1 August 2002 in the former south-east Queensland area, section 36A still applies and requires written agreement specifically.

Comply with Anzac Day obligations under Part 6. Provide all employees in factories and shops with a holiday for the whole day, subject to the exceptions in section 33(2). Do not conduct real estate sales under section 34. Close places of public amusement until 1.30 p.m. unless the Minister has given written permission under section 35. Close factories and shops for the whole day under section 36, except for the places listed in section 33(2)(b)-(h).

Comply with bank holiday closure obligations under section 20 for banking and insurance offices. Close on prescribed bank holidays. For Saturdays, the office may open (as Saturday remains a bank holiday but the section allows banks to open and choose whether to conduct specified dealings). However, ensure closure on Saturdays that are public holidays or fall on 1 January, 26 January, 25 December or 26 December.

Avoid soliciting business outside allowable hours under section 37. Do not publish statements that suggest the shop will be open, goods will be sold, or staff will be available to take orders or requests during prohibited hours. This includes all forms of communication: written, spoken, pictorial or visual. If a publisher other than the occupier receives a warning from an inspector, cease publication immediately to avoid prosecution.

Cooperate with industrial inspectors exercising their powers under sections 8, 9 and 11. Provide reasonable assistance and information lawfully required. Produce time sheets, pay sheets and other records when requested. Do not obstruct or impede inspectors. Employees have the right to be questioned out of the presence of their employer, and all persons may decline to answer questions that might incriminate them under section 12.

Maintain accurate records of employee engagements, hours worked, and written elections for extended hours. Record the classification of the shop and the trading area determination to demonstrate due diligence if challenged. For independent retail shops, maintain documentation of ownership structure, employee numbers at each location, and that the shop is not conducted in a part of a non-exempt shop during its closed hours. Ensure that any business operating in multiple areas within a building maintains separate walls and separate access to satisfy section 6(4) and avoid the anti-avoidance provisions.

For local governments and organisations seeking to vary trading hours, applications for trading area orders under section 21 must be made to the industrial commission, which will consider the criteria in section 22. Applications for special event declarations under section 31A must address the considerations in section 31B. Note the moratorium periods: during the 2022 moratorium (ending 31 August 2023 under section 64), the commission could not make trading area orders and no applications could be made. Check whether any current moratorium is in effect.