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CITE

Unreported Judgment

National Retail Association Limited, Union of Employers[2022] QIRC 233Member McLennan IC
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National Retail Association Limited, Union of Employers[2022] QIRC 233

_{QUEENSLAND INDUSTRIAL RELATIONS COMMISSION}

_CITATION:	_{National Retail Association Limited, Union of Employers}_{[2022] QIRC 233}
_PARTIES:	_{National Retail Association Limited, Union of Employers} _(Applicant)
_{CASE NO:}	_TH/2022/4
_PROCEEDING:	_Application
_{DELIVERED ON:}	_{20 June 2022}
_{HEARING DATE:}	_{20 June 2022}
_MEMBER: _{HEARD AT:}	_{McLennan IC} _Brisbane
_ORDER:	_{The application is dismissed.}
_CATCHWORDS:	_{INDUSTRIAL LAW – TRADING HOURS – APPLICATION FOR DECLARATION OF SPECIAL EVENT – application}_{to classify all non-exempt shops as exempt shops}_{in a geographic area surrounding the Bowen Showgrounds and CBD}_{for a specified period during a special event, namely, the Bowen Show}
_LEGISLATION:	_{Trading (Allowable Hours) Act 1990}_{(Qld) s 5, s 36B}
_CASES:	_{National Retail Association Limited, Union of Employers}_{[2019] QIRC 154} _{National Retail Association Limited, Union of Employers}_{[2020] QIRC 112} _{National Retail Association Limited, Union of Employers}_{[2021] QIRC 155} _{National Retail Association Limited, Union of Employers (the 2021 Burdekin Show case)}_{[2021] QIRC 220} _{National Retail Association Limited, Union of Employers}_{[2022] QIRC 093}
_APPEARANCES:	_{Mr D Stout for the applicant.} _{Mr D Marr for The Australian Workers' Union of Employees, Queensland.} _{Mr D Gaffy of the Shop, Distributive and Allied Employees Association (Queensland Branch), Union of Employees.}

_{Reasons for Decision}

[1]
_{By application filed on 9 June 2022, the National Retail Association Limited, Union of Employers (the NRA) applied for a declaration, pursuant to s 5(2) of the}_{Trading (Allowable Hours) Act 1990}_{(Qld) (the Act), that the Bowen Show, to be held on Tuesday 21 June 2022, is a special event within the meaning of s 5(1)(c)(ii) of the Act. Accompanying the NRA's application was an affidavit of Mr David Stout, affirmed on 9 June 2022.}

[2]
_{The effect of such a declaration, if made, would be that a non-exempt shop operating in a geographic area}_{surrounding the Bowen Showgrounds and}_{town centre (or CBD), as specified in the Applicant's application, would be an exempt shop for the period for which the declaration applies. Part 4 of the Act restricts the trading hours of non-exempt shops.}

[3]
_{The area specified in the Applicant's application is a geographic area}_{surrounding the Bowen Showgrounds and}_{the CBD, as set out in}_{Exhibit B Description of Location of the Affidavit of Mr Stout filed 9 June 2022}_:

_{Starting at Jilletts Rd at Bowen Showgrounds turning onto Argyle Park Rd then onto Wests Ln Turning south east onto Queens Rd then onto Hay St then turning south west onto Dalrymple St Travelling through to Norris St and turning onto Reynolds St and through to Railway St and Station St}

_{Turning onto Don St then onto Pantall St through to West St}

_{Turning onto Richmond Rd eastbound then onto Mount Nutt Rd}

_{Travelling through to starting point at Jilletts Rd at Bowen Showgrounds}^[1]

[4]
_{On 10 June 2022, a Directions Order was issued which required that the Applicant's application and the Directions Order be served on the Whitsunday Regional Council, the Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees, The Australian Workers' Union of Employees, Queensland, the Local Government Association of Queensland Limited, the Executive Director, Industrial Relations, Office of Industrial Relations, Department of Education and the Chief Industrial Inspector, Office of Industrial Relations, Department of Education.}

[5]
_{The Directions Order provided that those who may be affected by the application may make a formal application seeking leave to be heard and, if leave was granted, such a party was to file an outline of submissions and serve those submissions on the Applicant by 17 June 2022.}

[6]
_{The Application and Directions Order were published on the Commission's website.}

[7]
_{On 10 June 2022, the SDA made an application seeking leave to be heard. The SDA's application for leave to be heard was approved on 14 June 2022. The SDA filed and served submissions on 17 June 2022.}

[8]
_{On 13 June 2022, the AWU made an application seeking leave to be heard. The AWU's application for leave to be heard was approved on 14 June 2022. The AWU filed and served submissions on 13 June 2022.}

[9]
_{The question for my determination is whether I should make the declaration sought by the NRA.}

_{Relevant legislation}

[10]
_{Relatively recently, the Legislature made amendments to the}_{Trading (Allowable Hours) Act 1990}_(Qld).^[2]_{While discretion is provided to the Commission to depart from those hours, I bear in mind that those hours are the recent and precise expression of the legislation. Any departure from these terms must be on a compelling basis – to do so is not a trivial matter.}

[11]
_{The Applicant contends that the Bowen Show meets the description of a special event within the meaning of s 5 of the Act.}

[12]
_{Section 5 of the Act relevantly provides (emphasis added):}

₅_{Exempt shops}

(1)
_An_{exempt shop}_{is -}

(a)
_{a shop of a description mentioned in schedule 1AA used predominantly for selling goods by retail, or for supplying services, a reasonable person would expect to be sold or supplied in that shop;}

(b)
_{an independent retail shop; or}

(i)
_{that is a}_{unique or infrequent event}_{of local, State or national}_significance_;_and

_Examples—

_{the 2018 Commonwealth Games}
_{the Weipa Fishing Classic event}

(ii)
_{declared by the industrial commission to be a special event}_{for this paragraph}

(2)
_{A declaration for subsection (1)(c) –}

(a)
_{May be made by the industrial commission on an application by an organisation, chief executive, local government or any other person; and}

(b)
_{must state the following–}

(i)
_{the details of the event the subject of the declaration;}

(ii)
_{the period for which the declaration applies;}

(iii)
_{the area to which the declaration applies; and}

(3)
_{In deciding whether to declare an event to be a}_{special event}_{for subsection (1)(c), the industrial commission–}

(a)
_{must consider}_–

(i)
_the_{cultural, religious or sporting significance}_{of the event;}_and

(ii)
_the_significance_{of the event to the}_{economy and the tourism industry}_{; and}

(b)
_{may consider a submission made by a local government for an area}_{in which the declaration is likely to have an impact.}

_{What is a 'special event'?}

[13]
_{The Act provides for non-exempt shops operating in a stated area for an event to be considered exempt for the period of that event if the Commission declares the event to be a "special event"}_.

[14]
_{In deciding whether an event is a "special event", the Commission}_must_{consider the cultural, religious or sporting significance of the event - and the significance of the event to the economy and the tourism industry.}

[15]
_{Further, the Commission may consider a submission made by a local government for an area in which the declaration is likely to have an impact.}

_{Should the Bowen Show be declared to be a 'special event'?}

[16]
_{The following matters informed my decision as to whether or not to declare the Bowen Show to be a 'special event':}

_{Consideration of whether or not the Bowen Show is "a unique or infrequent event of local, State or national significance";}

_{Consideration of "the cultural, religious or sporting significance of the event"; and}

_{Consideration of "the significance of the event to the economy and the tourism industry".}

[17]
_{The written and oral submissions made by the NRA, the SDA and the AWU were carefully considered.}

_Submissions

_{NRA's submissions}

[18]
_{The NRA contends that the Bowen Show meets the description of a special event within the meaning of s 5(1)(c) of the Act, submitting that it meets the criteria as "a unique or infrequent event of local, State or national significance."}

[19]
_{Submissions on behalf of the NRA included that:}

_{The annual Bowen Show is now in its 139}^th_{year and is the oldest show in North Queensland.}

_{Agricultural shows have played a leading role in the development of agricultural and rural communities.}

_{The Bowen Agricultural Association hosts the Bowen Show annually with the support of local volunteers and sponsors.}

_{The event is a major tourist drawcard in regional Queensland, providing tourism and employment opportunities.}

_{Non-exempt retailers within the geographic area support the application made.}

_{Following the Townsville 400 granted application,}^[3]_{retailers welcomed the extended trading hours and were overwhelmed with requests from staff to work additional hours, exceeding the number of shifts available. The NRA submitted this as evidence that extended trading hours are desired by retailers and workers alike.}

_{Non-exempt retailers would only trade a span of hours "more reflective of anticipated customer needs".}

_{The NRA considers that the Bowen Show will bring an influx of visitors and their needs will be surplus to existing infrastructure.}

_{"Retail operators around the venue areas need additional hours to cater for the increase in activity both directly related and ancillary to events that make up the Show".}

_{The application will not come at the expense of regulation or employees.}

_{The necessary staff contribution for stores to trade additional hours was acknowledged.}

_{Though the QIRC may not be afforded the discretionary powers to preserve the rights protected by s 36B of the Act, the NRA submitted that any additional work during extended hours will continue to be on a voluntary basis. Further, Industrial Commissioner Dwyer has observed that there are a number of protections available under other statutes or instruments to employees who may find themselves subject to duress or coercion with respect to being directed to work during extended hours to ensure that work is voluntary.}^[4]

_{Extended trading hours would allow retailers to better cater to the needs of visitors to the region, as well as residents.}

_{The application is in keeping with the intent of the Act and with similar applications previously granted by the Commission, such as for the Bowen Show, Chinchilla Show and Mt Isa Show.}

_{The tremendous efforts of essential retail workers who serve the community in the midst of the COVID pandemic was also recognised.}

_{Cultural significance}

_{The Bowen Show is a major cultural event.}

_{Events on the 2022 program include: section competitions, sideshow alleys, amusement rides, monster trucks, smash-up derby, displays of farming and commercial goods, music, fireworks and other entertainment.}

_{Chair of Agricultural Shows Australia Dr Rob Wilson stated that shows are important because they provide "community connections and wellbeing as well as encouraging agricultural education through competition and benchmarking of agricultural pursuits and produce."}

_{"The NRA submits that the range of events and supporting statements from Deputy Prime Minister Michael McCormack and Chair of Agricultural Shows Australia Dr Rob Wilson, demonstrates that the Bowen show, and agricultural shows more broadly, has significance to the community and local culture."}

_{Dawson MP George Christensen stated "the importance of keeping these annual shows going should not be underestimated. They provide opportunities for our farmers and other community members to showcase and celebrate what they do and what they do best."}

_{The Bowen Show is culturally significant.}

_{Tourism and economic significance}

_{Annually, "the community celebrates the significance of agriculture to the region's economy with the Bowen Show, which has in itself become a major cultural event drawing visitors from across the region and afar."}

_{Entry tickets are reasonably priced and funds raised used for the maintenance and improvement of the showgrounds and facilities. Bowen Show Society President, Mick Boyce said that with ageing infrastructure at the show grounds, the funding would help cover ongoing maintenance costs associated with amenities like water and electricity."}

_{Competitors, businesses and volunteer groups rely on the Bowen Show for employment, funding and business promotion opportunities.}

_{"The impact of COVID-19 on regional Australia cannot be understated. Agricultural shows and field days are an important fixture for the local economy, however, most of these events were cancelled in 2020. Nationally, agricultural shows and field days contribute more than $1 billion to the economy each year. They attract more than 6 million patrons and are supported by more than 50,000 volunteers."}

_{The Bowen Show received $15,000 of funding under the Supporting Agricultural Shows and Field Days program, to provide operational support to relieve cash flow pressures and ensure ongoing sustainability of local shows and societies in 2021 and beyond.}

(aa)
The Hon David Littleproud, Minister for Agriculture, Drought and Emergency Management said in a December 2020 media release "Shows and field days are uniquely Australian and provide huge economic spin-offs for local communities as well as opportunities for the businesses and services who exhibit. They also help to maintain our farmers' competitive edge by providing an outlet for new ideas, new technologies and new ways of working to be shared."

(bb)
Chairman of the Association of Agricultural Field Days of Australasia (AAFDA), Bruce Wright stated that these events are "the largest business events held throughout our regional centres and connect our farmers and primary producers with the latest in machinery, innovation, education and agribusiness."

(cc)
"Whitsunday Regional Council reports that the Whitsunday Coast Airport is seeing record high passengers, establishing itself as one of the fastest growing regional airports in Australia and the Whitsundays as one of Australia's most popular tourism destinations. April 2022 saw not only the highest figures recorded for the month of April, but the highest ever monthly passenger total with 47,834 passengers transitioning through the airport. Acting Mayor Mike Brunker responded stating "connectivity is key to making it easy for visitors to explore the Whitsunday region and the flow on economic benefits to Bowen, Proserpine, Collinsville and other areas is huge. We have hit over 220 flights monthly which means more passengers and equates to increased bums on seats and bodies in beds to support our region's tourism and business stakeholders. Now that Australia and the world has opened for travel, the Whitsundays is perfectly positioned to cash in economically."

(dd)
The Bowen Show is significant to the economy and tourism.

_{AWU's submissions}

[20]
_{The AWU filed submissions on 13 June 2022.}

[21]
_{The AWU made the following submissions "in support of the Application"}^[5]_:

_a) _{The union "has no reason to oppose the application."}^[6]

_b) _{The AWU represents members in the affected area.}

_c) _{The Commission should "take into consideration all matters referred to in section 5 of (the Act) and further if there is in fact a necessity for a non-exempt shop to be redefined as an exempt store for the purpose of such application."}^[7]

_d) _{Should the application be granted, ancillary orders should be made to ensure employees in affected shops had protection from working extended trading hours under s 36B of the Act.}

_{SDA's submissions}

[22]
_{The SDA filed submissions on 17 June 2022.}

[23]
_{Submissions on behalf of the SDA included that:}

_{Application consequences}

_a) _{Where s 5 applications are used to suggest the significance of any event without demonstrating real necessity for extended trading hours by major retailers, such application undermines the existing regime. This may benefit some major retailers but puts significant pressure on the availability required of retail workers, removes the competitive advantages relied upon by many small business owners and operators and can detract from the services available at the event itself.}

_b) _{"The existing protections around voluntary work available under statutes or other instruments are not always adequate in preventing the reality of other relational pressures in store. Whilst it is ideal to hypothesize additional hours will be available to those employees who request to work, employers usually direct employees to work a particular roster for the relevant period on the basis of operational needs or requirements. We are informed regularly by our members they experience relationship breakdown and other consequences if those rosters are declined, regardless of the reason for declining."}

_c) _{It is imperative that such applications are vigorously assessed and approved only when the evidence strongly dictates it is appropriate in the circumstances.}

_{"Significance"}

_d) _{The SDA submitted that the term 'significance' as it appears in s 5 of the Act "…was not intended to be used as an unmeasured benchmark available to the NRA to point to any cultural, religious or sporting aspect of an event to satisfy an application for extended trading. A reasonable understanding of the legislation would be it does not apply where an event possesses a very basic level of significance but applies where an event is of such significance it creates the real possibility of retail opportunities in the extended hours."}

_e) _{"The NRA has failed to demonstrate an adequate connection between the event and the surrounding retailers. [Reference is made] generally to support for the application from non-exempt retailers within the [geographic area subject of the application]. This general assertion is made in the absence of a direct comment from those retailers and without referring to which retailers specifically have expressed their support. The supporting affidavit also gives an assurance on behalf of the again unnamed retailers that if the application is granted, they will cater to customer expectations. The NRA fails to explain what those customers' expectations are or how the operation of non-exempt retailers in the extended hours will achieve this."}

_f) _{"When determining whether the event meets an adequate understanding of 'significance' we request the Commission use its discretion to consider factors such as attendance numbers, size of the event, media coverage, and contribution to Queensland's national and international reputation." The recent}_{Inquiry into the operation of the Trading (Allowable Hours) Act 1990}_{report recommended these specific considerations for inclusion in s 5(3)(a).}

_{Requested period and area}

_g) _{If the Commission determines to grant the application, the period requested and the geographic area contained therein is not disputed.}

_{Voluntary work}

_f)_{The SDA foundationally sought to protect the voluntary nature of any work to be performed within the extended hours and asked that it be expressed in the order, in the event that the application was granted.}

_{Further matters}

[24]
_{In response to my questions, it was further clarified that:}

_a) _{The primary purpose of NRA's application was to enable the local Woolworths supermarket to open on the Bowen show holiday tomorrow.}

_{Woolworths had asked the NRA make the application, this is not a case of the NRA simply making the application for extended trading hours as a matter of course, given the show holiday.}

_b) _{The IGA store would still be open on the Bowen show holiday tomorrow, in the Bowen CBD.}

_c) _{The NRA had no reasonable excuse as to why an application for the Bowen show holiday tomorrow was filed a mere 12 days prior.}^[8]_{Self-evidently, that is problematic in terms of enabling sufficient time for interested parties to seek leave to be heard, submissions filed, the Hearing to be held and a decision to be made.}

_d) _{The NRA stated that there had been discussions between Woolworths Bowen management and staff regarding rostering arrangements for tomorrow, in the event that the application was either granted or dismissed. The particular rostering and consultation provisions in the relevant collective agreement were also noted.}

_e) _{The Bowen show was held on 22 June last year. It will be held on 21 June this year.}

_f) _{As a possible measure of the extent of tourism into Bowen that may be realised as a result of the show tomorrow, there remained accommodation vacancies in the town's various hotels, motels and holiday park.}

_g) _{In response to my inquiry as to why it was assumed that people attending the Bowen show may also wish to go grocery shopping tomorrow, the NRA submitted that it was about customers' expectations about the normal opening hours.}

_h) _{The NRA's ambition was that I give my decision at the Hearing, as the Bowen show holiday is tomorrow. I was unwilling to do so. However, I did express my view that the Bowen show "is a unique or infrequent event of local, State or national significance"}^[9]_{and is also an event of "cultural significance".}^[10]_{I was considerably more circumspect on whether or not I had yet been persuaded as to "the significance of the event to the economy and the tourism industry"}^[11]_{– the third mandatory consideration for the Commission under the Act.}

_{Should the Commission grant the declaration sought?}

[25]
_{As is evident from s 5(1), the Act provides for non-exempt shops, operating in a stated area for an event, to be 'exempt shops' for the relevant period if}_two_{limbs are satisfied:}

_{the event is a unique or infrequent event of local, State or national significance;}

_and

_{the Commission declares the event to be a 'special event'}_.

[26]
_{In deciding whether to declare the event to be a 'special event' under the second limb described above, the Commission}_must_consider:

_{the cultural, religious or sporting significance of the event;}

_and

_{the significance of the event to the economy and the tourism industry.}

[27]
_{Further, the Commission}_may_{consider a submission made by a local Council for an area in which the declaration is likely to have an impact. Whitsunday Regional Council made no submissions either supporting or opposing the application.}

[28]
_{Section 5(1)(c)(i) lists two examples of "a unique or infrequent event of local, State or national significance"; that is, the 2018 Commonwealth Games and the Weipa Fishing Classic event. Whilst the local show is a typical feature of the community calendar in almost every rural and regional centre in the state, that local event was not amongst the examples contained in s 5 in the most recent expression of the Legislature. Nor, clearly, has the Legislature determined to make the extension of trading hours}_automatic_{in all and every circumstance of the local show occurrence.}

[29]
_{The SDA has submitted that "it is imperative the Commission vigorously assess these applications and only make an order when the evidence strongly dictates it is appropriate in the circumstances." I agree that is the correct course.}

[30]
_{The SDA has argued that "The term 'significance' was not intended to be used as an unmeasured benchmark available to the NRA to point to any cultural, religious, sporting or economic aspect of an event to satisfy an application for extended trading. A reasonable understanding of the legislation would be it…applies where an event is of such significance it creates the real possibility of retail opportunities in the extended hours." As his Honour, Deputy President Merrell, observed in respect of the Burdekin Show application, that submission:}

_{…does not take into account the ordinary meaning of that word. The ordinary contextual meaning of 'significance' in s 5(3)(a) of the Act is: 'important; consequence.'}

_{I also cannot accept the submission that a real understanding of the legislation is that it applies when an event is of such significance it creates the real possibility of retail opportunities in the extended hours. Certainly, s 5(3)(a)(ii) of the Act provides that the Commission must consider the significance of the event to the economy and to the tourism industry. However, that provision does not go so far as submitted by the SDA. If the purpose of the legislation was that, in deciding whether to declare an event to be a special event, the Commission was required to consider whether the event creates the real possibility of retail opportunities in the extended hours, then the legislation would provide for that.}^[12]

_{Similarly, whilst the SDA has pointed to the recent}_{Inquiry into the operation of the Trading (Allowable Hours) Act 1990}_{report Recommendation 1 - that the considerations in s 5(3)(a) be expanded to include other factors such as "attendance numbers, size of the event, media coverage, and contribution to Queensland's national and international reputation" – exercise of the Commission's discretion in those terms would be an overreach at this point in time.}

_{The Bowen Show is not a}_{'special event'}_{within the meaning of}_{s 5(1)(c)(ii) of the Act}

[31]
_{Having regard to the parties' submissions, I am of the view that the Bowen Show is not a 'special event'}_{within the meaning of}_{s 5(1)(c)(ii) of the Act.}

[32]
_{My reasons follow.}

[33]
_{The Act mandates consideration of a number factors in determining such applications:}

_{Is the}_{event a unique or infrequent event of local, State or national significance?}^[13]

[34]
_{I am satisfied that the Bowen Show is a unique event of local significance. I shared that view with the parties at the Hearing this morning.}

[35]
_{I accept the NRA's submission that agricultural shows have played a leading role in the development of rural communities.}

[36]
_{An annual show in a small regional community falls within those terms for the suite of reasons outlined by the parties.}

[37]
_{A long local tradition underscores the significance and uniqueness of the event to the local region.}

[38]
_{In my view, Industrial Commissioner Dwyer's observations with respect to the NRA's application for the Chinchilla Show are also most apposite in this matter:}

_{It is a stand-alone, singular event, of which there is no replica or rival in that community. The fact that it occurs annually does not make it less unique but, on the contrary, perhaps more so. By way of illustration, it would be difficult to consider the Brisbane 'Ekka' as anything but an iconic and unique event for the residents of Brisbane, and an event that could never be truly replicated. I consider the residents of Chinchilla are likely to experience their annual show in the same way}_._{Similarly, the Show is undoubtedly significant for the local community.}^[14]

[39]
_{I find that the Bowen Show complies with the criteria at s 5(1)(c)(i) of the Act.}

_{Does the event have cultural, religious or sporting significance?}^[15]

[40]
_{It is not disputed that the local show is culturally significant to the community of Bowen.}

[41]
_{I accept that the extensive program of activities and entertainment scheduled proudly reflects the Bowen community. The NRA submitted that events on the 2022 program include: section competitions, sideshow alleys, amusement rides, monster trucks, smash-up derby, displays of farming and commercial goods, music, fireworks and other entertainment.}

[42]
_{I have considered s 5(3)(a)(i) of the Act and concur that the Bowen Show is an event of cultural significance. I shared that view with the parties at the Hearing this morning.}

_{Is the event significant to the economy and the tourism industry?}^[16]

[43]
_{On the limited evidence before me, I}_cannot_{be satisfied}_{that the Bowen Show is significant to the "economy and tourism industry". I expressed my reservations about whether or not the NRA's application met this criteria at the Hearing this morning.}

[44]
_{The NRA's submissions on this particular criteria are summarised at paragraph [19] above and need not be repeated here. With respect to those submissions, the NRA's application does not provide evidence in support of its largely unquantified claims directly relevant to the Commission's consideration of elements under s 5(3)(a)(ii) of the Act.}

[45]
_{Referring the parties to my recent decision dismissing the NRA's application for the Roma Show,}^[17]_{I noted at the Hearing this morning that this latest application would perhaps have been more compelling if it addressed matters such as:}

_{The actual show attendance numbers last time and / or the projected show attendance numbers this year.}

_{Quantifying the anticipated influx of visitors and / or tourism to Bowen, as a result of the local show.}

_{The resultant anticipated increase in trade.}^[18]

_{That may have illuminated any argument as to why the IGA is insufficient to cope with customer demand for groceries on Bowen show holiday tomorrow.}

_{Expected hours of opening of the local Woolworths,}^[19]_{in the event the application was granted.}

_{How extended trading hours would allow retailers to better cater to the needs of visitors to the region.}

_{It is also the case that any consideration of an extension of trading hours for the shopping convenience of visitors must also recognise that they have more time to spend and consume during the existing spread of hours, as they are not limited by time spent at work.}

_{How extended trading hours would allow retailers to better cater to the needs of residents.}

_{It would be the case that residents would be well-familiar with the opening hours of local stores and especially that it was the Bowen show holiday tomorrow.}

_{Any argument that customers have a preferred place to shop is not enough to warrant disturbing the existing regime set down by the Legislature in my view.}

_{Quantifying the impact of COVID-19 on regional Australia.}

[46]
_{The NRA's submission references the statement of Chair of Agricultural Shows Australia Dr Rob Wilson, supporting the cultural contribution of local shows "as crucial to each regional community" in terms of community connections, well-being, education and "benchmarking of agricultural pursuits and produce." That is not in itself persuasive of the significance of the Bowen show to the economy and the tourism industry.}

[47]
_{The NRA's submission then references the "supporting statements" of}_{both Dr Rob Wilson and}_{(then) Deputy Prime Minister Michael McCormack}_{to demonstrate "that the Bowen show, and agricultural shows more broadly, has significance to the community and local culture." However, no statement from (then) Deputy Prime Minister Michael McCormack is included. Whilst I have accepted that the Bowen show is of cultural significance, the reference is not persuasive as to the "significance of the event to the economy and the tourism industry."}

[48]
_{The NRA's submission states that the "impact of COVID-19 on regional Australia cannot be understated." However, the NRA does not quantify that impact nor explain}_how_{that impact may be ameliorated through the extension of trading hours to Woolworths in Bowen tomorrow. That is particularly relevant in circumstances where smaller retailers, like the IGA, have also been impacted and would otherwise expect to benefit from the competitive advantage of opening on the show holiday.}

[49]
_{The NRA's submission states that}_{"Agricultural shows and field days are an important fixture for the local economy, however, most of these events were cancelled in 2020." The NRA does not quantify that impact nor explain the relevance of the cancellation in 2020 in circumstances when the Bowen show resumed last year.}

[50]
_{The NRA's submission states that "Nationally, agricultural shows and field days contribute more than $1 billion to the economy each year. They attract more than 6 million patrons and are supported by more than 50,000 volunteers." Whilst I have no reason to doubt the veracity of that claim, it does not assist me in the mandatory consideration of the significance of the Bowen show to the economy and the tourism industry. No attempt is made to apportion or attribute the cash injection consequent of the Bowen show – the subject of this application. Neither do I have any visibility of the number of patrons and volunteers involved in the Bowen show. As such, the inclusion of this statement in the NRA's application is unpersuasive.}

[51]
_{The NRA has also submitted that the federal funding received by the Bowen Show Society under the Supporting Agricultural Shows and Field Days program was $15,000. The program was said to aim to provide operational support "to relieve cash flow pressures and ensure the sustainability of these societies and the shows they conduct." That funding appeared to be targeted at supporting local show committees to continue operations and future planning in constrained financial circumstances, for the types of cultural and community benefits I have readily accepted earlier in this decision. It is not persuasive as any measure of the significance of the Bowen show to the economy and the tourism industry.}

[52]
_{In a similar vein, the NRA's application noted the comments of Bowen Show Society President Mr Mick Boyce that the federal funding outlined at paragraph [51] above would help cover ongoing maintenance costs associated with amenities like water, electricity and ageing infrastructure at the showgrounds. The NRA submitted that in thanking George Christensen MP for the funds, Mayor Andrew Willcox stated "it's a shot in the arm for the show society, they've got a big area to maintain and they do it exceptionally well." It is not clear what I am to make of that submission, with respect to advancing any particular argument about the possible economic significance of the Bowen show.}

[53]
_{I acknowledge that the NRA has also cited the Hon. David Littleproud, Federal Member for Maranoa, who said "Shows and field days are uniquely Australian and provide huge economic spin-offs for local communities as well as opportunities for the businesses and services who exhibit." Further referenced were the comments of Chairman of the Association of Agricultural Field Days of Australasia, Mr Bruce Wright, that these events are "the largest business events held throughout our regional centres and connect our farmers and primary producers with the latest in machinery, innovation, education and agribusiness." The NRA has not further elaborated what I am to draw from those quotes – however, it seems to me as though they rather anticipate some yet undefined future economic benefits that may be realised from the community and businesses interacting and initiating commercial opportunities at the show, rather than in parallel to the show. The lack of specificity of the statements, and lack of clarity as to its potential relevance for the Bowen show in particular, has failed to persuade me.}

[54]
_{Finally, the NRA says that the "Whitsunday Regional Council reports that the Whitsunday Coast Airport is seeing record high passengers, establishing itself as one of the fastest growing regional airports in Australia and the Whitsundays as one of Australia's most popular tourism destinations." Acting Mayor Mike Brunker said that "…connectivity is key to making it easy for visitors to explore the Whitsunday region and the flow on economic benefits to Bowen, Proserpine, Collinsville and other areas is huge. We have hit over 220 flights monthly which means more passengers…to support our region's tourism and business stakeholders. Now that Australia and the world has opened for travel, the Whitsundays is perfectly positioned to cash in economically." That statement makes clear that the Whitsunday Coast Airport is very busy indeed, especially over the Easter period this year as reported. The criteria the Act requires me to consider however is the significance of the}_{Bowen show}_{to the economy and tourism industry – not the significance of the}_airport_{to the economy and tourism industry, as this lengthy inclusion in the NRA's submission appears to imply. Visitors coming by air to the Whitsunday region from around Australia and overseas may indeed visit the beautiful beaches of Bowen. Should they do so, they would no doubt be delighted to encounter the range of cultural activities and family fun on offer at the Bowen show, should they be so fortunate as to arrive in the town tomorrow. However, it is a bridge too far to imply that the Bowen show is itself significant to the economy and tourism industry}_{because of}_{the convenience of an increasingly busy local airport.}

[55]
_{Even if I were to accept on face value that the Bowen show produced a range of positive economic and tourism outcomes for the community through drawing visitor attendance from the wider region, I cannot be satisfied of its "significance" in circumstances where proximate neighbouring communities would likewise have their own local show events.}

[56]
_{For the above reasons, I do not accept that the Bowen show is significant to the economy and the tourism industry.}

[57]
_{I note that the primary purpose of NRA's application was to enable the local Woolworths supermarket to open on the show holiday tomorrow. Extended trading hours does not mean more money can be conjured up to spend within the family budget – whether or not the shops are open longer in order to do so. It may even be the case that local families actually curtail their typical grocery spend in that particular week, in order to have some left over with which to enjoy the special activities on offer at the Bowen Show. In the absence of evidence that retail spending in Bowen increases in the show period, I cannot assume it to be so.}

[58]
_{For those reasons, the NRA has failed to make a sufficiently compelling argument}_{to disturb the allowable trading hours prescribed by the Legislature.}

[59]
_{I do not accept that the Bowen show is significant to the economy and the tourism industry.}

_Conclusion

[60]
_{In coming to this Decision, I have carefully considered the parties' submissions and all the material before me.}

[61]
_{I entirely agree with the SDA's comments that it is imperative the Commission vigorously assess such applications for extended trading hours and that such decision should not be taken lightly. If it were the intention of the Legislature that every local show was to be automatically declared to be a 'special event' within the meaning of s 5(1)(c)(ii) of the Act, no doubt it would have been so expressed. That is not the case.}

[62]
_{I have found that the Bowen show is a unique event of local significance.}

[63]
_{It is not disputed that the Bowen show is culturally significant.}

[64]
_{For the reasons above, the NRA has failed to make a sufficiently compelling argument as to the significance of the Bowen show to the economy and the tourism industry.}

[65]
_{Having regard to the submissions and balancing those relevant factors, I find that the Bowen show is not a 'special event'}_{within the meaning of}_{s 5(1)(c)(ii) of the Act.}

[66]
_{For the reasons set out above, I will not make the declaration sought.}

[67]
_Order:

_1._{The application is dismissed.}

Footnotes

[1] Affidavit of Mr Stout filed 9 June 2022, Exhibit B Description of Location.

[2] 'The Act' was revised in 2017.

[3] National Retail Association Limited, Union of Employers [2020] QIRC 112.

[4] National Retail Association Limited, Union of Employers [2019] QIRC 154, 7 [32].

[5] AWU's submissions filed 13 June 2022, 2 [2].

[6] Ibid.

[7] Ibid [4].

[8] 9 June 2022.

[9] Trading (Allowable Hours) Act 1990 (Qld) s 5(1)(c)(i).

[10] Ibid s 5(3)(a)(i).

[11] Ibid s 5(3)(a)(ii).

[12] National Retail Association Limited, Union of Employers (the 2021 Burdekin Show case) [2021] QIRC 220, 5 [18]-[19].

[13] Trading (Allowable Hours) Act 1990 (Qld) s 5(1)(c)(i).

[14] National Retail Association Limited, Union of Employers [2021] QIRC 155, [26]-[27].

[15] Trading (Allowable Hours) Act 1990 (Qld) s 5(3)(a)(i).

[16] Ibid s 5(3)(a)(ii).

[17] Re: National Retail Association Limited, Union of Employers [2022] QIRC 093.

[18] As observed by Industrial Commissioner Dwyer in National Retail Association Limited, Union of Employers [2021] QIRC 155, [30].

[19] Ibid.

Editorial Notes

Published Case Name:
National Retail Association Limited, Union of Employers
Shortened Case Name:
National Retail Association Limited, Union of Employers
MNC:
[2022] QIRC 233
Court:
QIRC
Judge(s):
Member McLennan IC
Date:
20 Jun 2022

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Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
National Retail Association Limited, Union of Employers	[2020] QIRC 112	2 citations Jump To Cite 1 - [2020] QIRC 112 Cite 2 - [2020] QIRC 112
National Retail Association Limited, Union of Employers	[2021] QIRC 155	3 citations Jump To Cite 1 - [2021] QIRC 155 Cite 2 - [2021] QIRC 155 Cite 3 - [2021] QIRC 155
National Retail Association Limited, Union of Employers (the 2021 Burdekin Show case)	[2021] QIRC 220	2 citations Jump To Cite 1 - [2021] QIRC 220 Cite 2 - [2021] QIRC 220
Perrett v State of Queensland	[2019] QIRC 154	2 citations Jump To Cite 1 - [2019] QIRC 154 Cite 2 - [2019] QIRC 154
Re: National Retail Association Limited, Union of Employers	[2022] QIRC 93	2 citations Jump To Cite 1 - [2022] QIRC 93 Cite 2 - [2022] QIRC 93

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National Retail Association Limited, Union of Employers[2022] QIRC 233