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  4. Re: National Retail Association Limited, Union of Employers - [2022] QIRC 93

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Re: National Retail Association Limited, Union of Employers[2022] QIRC 93

Re: National Retail Association Limited, Union of Employers[2022] QIRC 93

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

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

PARTIES:

National Retail Association Limited, Union of Employers

(Applicant)

CASE NO:

TH/2022/1

PROCEEDING:

Application

DELIVERED ON:

18 March 2022

HEARING DATE:

8 March 2022

MEMBER:

HEARD AT:

McLennan IC

Brisbane

ORDER:

  1. 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 covering the Roma CBD for a specified period during a special event, namely, the Roma Show

LEGISLATION:

Trading (Allowable Hours) Act 1990 (Qld) s 5, s 36B

CASES:

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

National Retail Association Limited, Union of Employers (the 2021 Burdekin Show case) [2021] QIRC 220

National Retail Association Limited, Union of Employers [2021] QIRC 155

APPEARANCES:

Mr D Stout for the applicant.

Ms E Marks for Maranoa Regional Council.

Ms L Armstrong for the Shop, Distributive and Allied Employees Association (Queensland Branch), Union of Employees.

Mr D Marr for the Australian Workers' Union of Employees, Queensland.

Reasons for Decision

  1. [1]
    By application filed on 2 February 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 (the Act), that the Roma Show, to be held between Friday, 6 May and Saturday, 7 May 2022 inclusive, 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 31 January 2022.
  1. [2]
    The effect of such a declaration, if made, would be that a non-exempt shop operating in a geographic area covering the Roma 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.
  1. [3]
    The area specified in the Applicant's application is a geographic area covering the Roma CBD, as set out in Exhibit B of the Affidavit of Mr Stout filed 2 February 2022:

Starting at Edwardes St N at Bassett Park, travelling directly south east as the crow flies to Bowen St at The Big rig Museum. Travelling west on Bowen St to Currey St, travelling northwards on Currey St through to Bassett Ln.  Turning east onto Bassett Ln to Carnarvon Hwy, travelling north on Carnarvon Hwy then onto McPhie St.  Travelling back to starting point at Edwardes St N at Bassett Park.[1]

  1. [4]
    On 4 February 2022, a Directions Order was issued which required that the Applicant's application and the Directions Order be served on the Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees (the SDA), the Australian Workers' Union of Employees, Queensland (the AWU), 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. 
  1. [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 4 March 2022.
  1. [6]
    The Application and Directions Order were published on the Commission's website.
  1. [7]
    On 8 February 2022, the AWU made an application seeking leave to be heard.  The AWU's application for leave to be heard was approved on 10 February 2022.  The AWU filed and served an outline of submissions on 3 March 2022.
  1. [8]
    On 9 February 2022, the SDA made an application seeking leave to be heard.  The SDA's application for leave to be heard was approved the following day.  The SDA filed and served an outline of submissions on 4 March 2022.
  1. [9]
    On 15 February 2022, the Maranoa Regional Council made an application seeking leave to be heard.  The Council's application for leave to be heard was approved on 17 February 2022.  Council did not file and serve an outline of submissions in this matter.
  1. [10]
    The question for my determination is whether I should make the declaration as sought.

Relevant legislation

  1. [11]
    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.
  1. [12]
    The Applicant contends that the Roma Show meets the description of a special event within the meaning of s 5 of the Act. 
  1. [13]
    Section 5 of the Act relevantly provides (emphasis added):

5Exempt shops

  1. (1)
    An exempt shop is -
  1. (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;
  1. (b)
    an independent retail shop; or
  1. (c)
    a shop operating in a stated area for an event –
  1. (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
  1. (ii)
    declared by the industrial commission to be a special event for this paragraph
  1. (2)
    A declaration for subsection (1)(c) –
  1. (a)
    May be made by the industrial commission on an application by an organisation, chief executive, local government or any other person; and
  1. (b)
    must state the following–
  1. (i)
    the details of the event the subject of the declaration;
  1. (ii)
    the period for which the declaration applies;
  1. (iii)
    the area to which the declaration applies; and
  1. (c)
    must be published on the QIRC website.
  1. (3)
    In deciding whether to declare an event to be a special event for subsection (1)(c), the industrial commission–
  1. (a)
    must consider–
  1. (i)
    the cultural, religious or sporting significance of the event; and
  1. (ii)
    the significance of the event to the economy and the tourism industry; and
  1. (b)
    may consider a submission made by a local government for an area in which the declaration is likely to have an impact.

Should the Roma Show be declared a 'special event'?

NRA's written submissions

  1. [14]
    The NRA contends that the Roma Show meets the description of a special event within the meaning of s 5(1)(c) of the Act.
  1. [15]
    In his affidavit accompanying the NRA's application, Mr David Stout, NRA Director of Policy, deposes that:
  • the Roma Show has been an annual event since 1873 and is now the largest in the region;
  • agricultural shows have played a leading role in the development of agricultural and rural communities, they are one of the oldest continuous events in Australia;
  • the Roma Show is supported by the local community, 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, retailers 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 will only trade in line with customer expectations;
  • retail operators around the event venue will have an 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;
  • 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 similar applications previously granted by the Commission, such as for the Chinchilla Show and Mt Isa Show; and
  • the tremendous efforts of retail workers who serve the community in the midst of the COVID pandemic was also recognised.

Cultural significance

  • Roma Show Society Executive Committee President, Alanah Ladbrook, announced the 2022 Roma Show "As with all show societies across this country, Roma Show Society has faced many obstacles over the past five years.  Drought then COVID has tested the tenacity of members and committees.  I am so proud of this small group of volunteers who have re-assessed and moved ahead.  The Roma Show Committee have vowed to not only keep going but to improve and organise an event that will be unmissable";
  • the range of events scheduled proudly reflects the Roma community.  An extensive program of activities and entertainment is featured across the two days of the Show, including: Young Farmers Challenge, Showgirl Competition, Rural Ambassador Competition, Ute Muster, Queensland State Title Wood Chop competition, Machinery Alley, section competitions, fashion parades, show jumping, sheep dog trials, sideshow alleys, musical acts and fireworks;
  • the Hon Michael McCormack, Deputy Prime Minister and Minister for Infrastructure, Transport and Regional Development, said "Agricultural shows are part of the fabric of regional Australia, showcasing everything positive about our communities and local industries…They create social bonds and improve mental health in parts of Australia where distance, drought, bushfires and now COVID-19 have caused significant hardship and distress"; and
  • the Roma Show is culturally significant because of its history and traditions that congregate the local community, especially during times of hardship.

Tourism and economic significance

  • last year the Roma Show society received $36,070.37 of funding, under the Supporting Agricultural Shows and Field Days program geared to provide operational support to relieve cash flow pressures and ensure ongoing sustainability in 2021 and beyond;
  • the Hon David Littleproud, Federal Member for Maranoa, said "Show days and field days were uniquely Australian and provide huge economic spin-offs for local communities as well as opportunities for the businesses and services who exhibit";
  • the NRA submitted that this federal funding indicates government acknowledgement of the significance of the Roma Show to local tourism and economy;
  • the Roma Show Society lists 16 Diamond sponsors, 11 Platinum sponsors and 18 Gold sponsors - "Sponsors include Hutchinson Builders, Translink, Maranoa Regional Council, Cleanaway, Santos and several local hotels, motels, retailers and trade services.  The NRA submits that the number and range of sponsors, from large national businesses through to local traders and government services that support the show indicates its perceived economic value within the Maranoa region and Queensland more broadly"; and
  • the Roma Show clearly meets the criteria as "a unique or infrequent event of local, State or national significance."

NRA's oral submissions

  1. [16]
    The NRA made the following oral submissions at the Hearing:
  • the NRA's commitment to the ongoing voluntary nature of the work was emphasised;[3]
  • the magnitude of the impact on retail and the regions through COVID and floods has been exceptionally problematic;[4] and
  • local regional councils were committed to continuing shows and festivals through 2022 and beyond.  Although shows in some locations were small and in others large, "they do actually draw a significant amount of people into towns for an array of reasons."[5]

SDA's written submissions

  1. [17]
    The SDA filed their submissions on 4 March 2022.
  1. [18]
    In those submissions, Ms Laura Armstrong stated that:

Application consequences

  • 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 an 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;
  • "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"; and
  • it is imperative that such applications are vigorously assessed and approved only when the evidence strongly dictates it is appropriate in the circumstances.

"Significance"

  • 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 applies where an event is of such significance it creates the real possibility of retail opportunities in the extended hours";
  • "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's 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"; and
  • "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

  • If the Commission determines to grant the application, the period requested and the geographic area contained therein is not disputed.

Voluntary work

  • 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. 

SDA's oral submissions

  1. [19]
    The SDA made the following oral submissions at the Hearing:
  • the SDA supports "a broader understanding of the term 'significance', specifically for reasons like Ms Marks has raised as well";[6]
  • the connection between the extended hours and the event needs to be taken into consideration to give a more holistic view of how this could impact; and
  • insufficient information has been provided "to understand where its come from, what the specific customer needs are, and what potential benefit could come from this, in order to reach the benchmark of significance that we would be looking for in these applications" to weigh against the detrimental impacts for retail workers as well.

 AWU's written submissions

  1. [20]
    The AWU filed their submissions on 3 March 2022.
  1. [21]
    The AWU made the following submissions "in support of the Application":[7]
  • the union "has no reason to oppose the application";[8]
  • the AWU represents members in the affected area;
  • 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";[9] and
  • 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.

AWU's oral submissions

  1. [22]
    The AWU made the following oral submissions at the Hearing:
  • the AWU commends the application for approval; and
  • on the basis of the Affidavit and submissions of Mr Stout, the AWU is satisfied that all work during extended hours will be voluntarily agreed to by each individual employee and that where such work is carried out that is paid in accordance with the applicable industrial instruments.

Council's oral submissions

  1. [23]
    Maranoa Regional Council did not file written submissions, though made the following oral submissions at the Hearing:
  • The Roma Show Committee had met the previous evening and members' views were sought as to whether or not they supported extended trading hours on Friday and Saturday.  The result was that 16 of the 17 committee members opposed the application, for the following reasons:
  1. -
    The show festivities are significant for the regional communities.
  1. -
    The show holiday on Friday is a "family Friday", as well as encouragement to attend over the weekend.
  1. -
    Extended trading hours impact on attendance numbers - "the show already sees a clear pattern of behaviour in relation to the Saturday morning trading hours already at the show and the visitation numbers are low."
  1. -
    Ms Marks warned that the number of show volunteers would potentially decrease, if retail workers were now needed at work.
  1. -
    Small businesses would not be participating in the extended trading hours environment anyway because they could not afford to pay staff the public holiday rates.
  1. -
    A decision to extend trading hours would also affect other local businesses, such as our independent stores that operate when the larger retailers are not open.  Ms Marks stated "They rely on this trade.  They also financially support the show.  Ironically, the larger retail operators don't support that show.  But whilst they might see the value of it, they're not economically encouraging its existence."[10] 
  1. -
    The public holiday on Friday is "central to the marketing and the visitation of the show."[11]  Ms Marks explained "And the real concern by the committee is this, that the whole CBD is open, including retailers such as the larger retailers…they believe that would indeed affect the show's attendance, because whilst some visitation would definitely be positive…it distracts local people from attending the show."[12]  Ms Marks relayed the committee's fears that "Visitors would decrease and staff may not be able to attend…"[13]
  1. -
    It is really critical that this year is as successful as possible, given the COVID pandemic and the cancellation of last year.[14]
  1. -
    Ms Marks concluded that "It is a family day holiday, and it is culturally important to the local community, and every effort should be made to keep it as a thriving show.  And there needs to be more support for these local events, and it doesn't warrant giving away the focus of the show.  There are plenty of other public holidays available to the National Retail Association already at a larger retail facility."[15]

Further matters

  1. [24]
    In response to my questions, the parties' representatives further clarified that:
  • The primary purpose of the NRA's application was to enable the local Woolworths supermarket to open on the Friday show holiday.[16] 

 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.[17]

  • The IGA store would still be open on the Friday show holiday, in the Roma CBD.[18]

Council confirmed that the IGA would be able to cope with extra demand in the event that the local Woolworths was closed on the public holiday, as it had in the past.[19]

  • Roma retail outlets "service a population based on needs and necessity."[20] 

People may not be making trips more than once or twice a week, so there are limitations.  The show will attract more people to Roma and with the increase in numbers, they would probably need additional capacity.  [21]

People are shopping on a day-to-day basis for a whole range of reasons.  If you close one part of the infrastructure, it puts unrealistic pressure on the rest.[22]

  • The SDA represents members at the local Woolworths.[23]
  • The SDA has canvassed the views of members broadly, to understand their perspectives.  It is the case that "…especially in the rural areas, that opinion is still fairly consistent with our members, that they don't want these applications when they come forward."[24]

The lived experience of SDA members in other rural and regional areas where the show holiday has been subject of such granted applications has been markedly different. 

The SDA reported that consistent member feedback was that "…the rostering's either done too late; information about protections for voluntary work aren't given appropriately; people aren't aware of that as well; and the rostering is done at times there have been requests made.  But it's really dependent on the managers in store."[25]

The SDA advised that even where members were aware of the voluntary nature of work and had access to union representation, "…the relational pressures they experience with managers directing them to work at times, there's a difficulty that they experience actually stepping into their right to say no to the rosters…"  In such circumstances, "we find that a lot of times, people still work those rosters reluctantly."[26]

"There's not a blanket approach that seems to be taken, and unfortunately, we've seen the rostering done in a way that meets operational needs and costs for the business, rather than prioritising actual personal circumstances of the people involved.  And so it's based on that feedback that we make the objection."[27]

  • The NRA had not made a special event application for the Roma show previously.[28]
  • Having heard Council's representations around the strong desire to protect the Friday public holiday in that community, the NRA was invited to consider the concept of extended trade on Saturday only.  The NRA noted that the application was for an event that runs from Friday to Saturday, and that no additional days had been sought.  The NRA also pointed to the operational issues inherent in store closure even for one day "being significant reductions and significant start-up…"explaining that "it's going to take hours and hours, and then additional labour to get the stores operationally where they need to be."[29]
  • The NRA want to ensure that all of retail gets an opportunity to trade on these particular days.  Some customers will gravitate to the IGA and others will be more familiar with the product offerings at Woolworths.[30]  The smaller businesses are reluctant to open unless the anchor tenants do so.[31]
  • The NRA stated that businesses support the local shows.[32]
  • The NRA noted there was about 28 hours of programmed activities at the Roma Show.  Regional people do not often have opportunity to work at public holiday rates and need opportunities like this - "The voluntary provisions are in there so if they need to get away or if they wanted to spend time with their family or take their kids to the show, they can have the best of both.  But it's disappointing to cut off the opportunity for those particular people and only give them the chance to spend and not earn."[33]
  • Council emphasised the cultural significance of the show and the importance of the day that "is, in essence, the identity of Roma... harking back to the agricultural roots."[34] Further, any requirement to staff the larger retailers will impact attendance at the show - "Those people will work, and their families won't attend."[35]
  1. [25]
    I commended the NRA for making the application well in advance of the Roma show, to enable those locally to enact any necessary preparations to take account of the Commission's Decision.[36]

Should the Commission grant the declaration sought?

  1. [26]
    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'. 
  1. [27]
    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.
  1. [28]
    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.  At the hearing of this matter, Ms Marks made oral submissions opposing the application.
  1. [29]
    Section 5(1)(c)(ii) 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. 
  1. [30]
    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."[37]  I agree that is the correct course.
  1. [31]
    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."[38]  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.[39]

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 such factors 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 time.

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

  1. [32]
    Having regard to the parties' submissions, I am of the view that the Roma Show is not a 'special event' within the meaning of s 5(1)(c)(ii) of the Act. 
  1. [33]
    My reasons follow.
  1. [34]
    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?[40]

  1. [35]
    I am satisfied that the Roma Show is a unique event of local significance. 
  1. [36]
    I accept the NRA's submission that agricultural shows have played a leading role in the development of rural communities, as one of the oldest continuous events in Australia.
  1. [37]
    An annual show in a small regional community falls within those terms for the suite of reasons outlined by the various parties to this matter, in both the written and oral submissions. 
  1. [38]
    A long local tradition since 1873, coupled with the agricultural focus of the Roma Show celebration, underscores both the significance and uniqueness of the event to the local region.
  1. [39]
    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.[41]

  1. [40]
    I find that the Roma Show complies with the criteria at s 5(1)(c)(i) of the Act.

Does the event have cultural, religious or sporting significance?[42]

  1. [41]
    It is not disputed that the local show is culturally significant to the community of Roma and surrounds.  As Ms Marks has neatly put it, "It is, in essence, the identity of Roma."[43]
  1. [42]
    I accept the NRA's submission that the range of events scheduled proudly reflects the Roma community.  An extensive program of activities and entertainment is featured across the two days of the Show, including: Young Farmers Challenge, Showgirl Competition, Rural Ambassador Competition, Ute Muster, Queensland State Title Wood Chop competition, Machinery Alley, section competitions, fashion parades, show jumping, sheep dog trials, sideshow alleys, musical acts and fireworks.
  1. [43]
    I have considered s 5(3)(a)(i) of the Act and concur that the Roma Show is an event of cultural significance.

Is the event significant to the economy and the tourism industry?[44]

  1. [44]
    On the evidence before me, I cannot be satisfied that the Roma Show is significant to the Queensland economy and tourism industry more broadly.
  1. [45]
    In summary, the NRA's submissions on this particular criteria are that:
  • the event is a major tourist drawcard in regional Queensland, providing tourism and employment opportunities;
  • extended trading hours would allow retailers to better cater to the needs of visitors to the region, as well as residents;
  • non-exempt retailers will only trade in line with customer expectations;
  • although shows in some locations were small and in others large, "they do actually draw a significant amount of people into towns for an array of reasons";
  • retail operators around the event venue will have an increase in activity both directly related and ancillary to events that make up the Show;
  • last year the Roma Show society received $36,070.37 of funding, under the Supporting Agricultural Shows and Field Days program geared to provide operational support to relieve cash flow pressures and ensure ongoing sustainability in 2021 and beyond; and
  • the magnitude of the impact on retail and the regions through COVID and floods has been exceptionally problematic.[45]
  1. [46]
    With respect to the above 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. 
  1. [47]
    The NRA's 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 Roma, as a result of the local show.
  • The resultant anticipated increase in trade.[46]

That may have illuminated any argument as to why the IGA is this year insufficient to cope with customer demand for groceries on the Friday public holiday. 

This is particularly relevant as this is the first year of the NRA's application - and in light of Ms Marks' submission that the IGA has coped with customer demand in the past.

  • Expected hours of opening of the local Woolworths,[47] 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.

I recognise that Ms Marks has stated that the local IGA would be available for customers' grocery needs.

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, including the past history of the Woolworths supermarket closure on the Roma Show holiday.

The NRA's argument that customers tended to have a preferred supermarket that they would gravitate towards in terms of familiar product offerings, is not enough to warrant disturbing the existing regime in my view.

  • Quantifying the impact on retail and the regions through COVID and floods.

The NRA's submission does not address the matter of how that impact may be ameliorated through the extension of trading hours to Woolworths in Roma over the two days of the local show.  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 public holiday.

The NRA's submission references the statement of the Hon Michael McCormack, Deputy Prime Minister and Minister for Infrastructure, Transport and Regional Development, that "Agricultural shows are part of the fabric of regional Australia, showcasing everything positive about our communities and local industries…They create social bonds and improve mental health in parts of Australia where distance, drought, bushfires and now COVID-19 have caused significant hardship and distress."  The words of the Deputy Prime Minister would appear to elevate the importance of the community coming together at the show "to create social bonds and improve mental health" in times of hardship; rather than advancing an argument for extended trading hours for retailers.

Council has submitted that extended trading hours would negatively impact on attendance numbers at the Roma Show, seemingly reducing those opportunities to create social bonds.  Ms Marks stated that "…the show already sees a clear pattern of behaviour in relation to the Saturday morning trading hours already at the show and the visitation numbers are low."  Her caution was that extended trading hours would "distract" people from attendance at the show – both visitors and retail workers who would have to work rather than volunteer and / or bring their families to the event.  The SDA has echoed those sentiments, addressing the matter of "relational pressure" on retail workers to "reluctantly" conform to the roster allocation.  I can well appreciate that pressure may be further compounded for those retail workers engaged in insecure casual employment.

At the Hearing, Ms Marks outlined the impact of extended trading hours relevant to the COVID argument advanced by the NRA in this way:

…And the real concern by the [Roma Show] committee is this, that the whole CBD is open, including retailers such as the larger retailers.  That – they believe that that would indeed affect the show's attendance, because whilst some visitation would definitely be positive, in the [indistinct] it distracts local people from attending the show.  Volunteers have the potential to decrease.  Visitors would decrease and staff may not be able to attend, and given the fact that as Mr Stout raised, it would have significant impacts in relation to the COVID pandemic and the cancellation of last year.  It's really critical that this year is as successful as possible.  It is a family day holiday, and it is culturally important to the community, and every effort should be made to keep it as a thriving show.  And there needs to be more support for these local events, and it doesn't warrant giving away the focus of the show.[48]

  1. [48]
    While the NRA has submitted that the federal funding received by the Roma Show society last year under the Supporting Agricultural Shows and Field Days program indicates government acknowledgement of the significance of the event to local tourism and economy, the Media Release referenced in the submission instead stated that the funding was geared to provide operational support to relieve cash flow pressures and ensure ongoing sustainability of local shows in 2021 and beyond.  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 discussed in the section above.
  1. [49]
    The NRA has also noted that the Roma Show Society lists 16 Diamond sponsors, 11 Platinum sponsors and 18 Gold sponsors.  It is asserted that the number and range of sponsors that support the show, from large national businesses through to local traders and government services, indicates its perceived economic value within the Maranoa region and Queensland more broadly.  No evidence has been provided as to the reason why the sponsors have chosen to do so, including any view held that the Roma Show is significant to the economy and tourism.  However, there may be any number of reasons why businesses may choose to sponsor such an event.  For instance, it may be a way of giving back to the community, rewarding the loyalty of local customers or simply another form of advertising.  It does not necessarily follow that the "number and range of sponsors" is evidence of the Roma Show's "perceived economic value within the Maranoa region and Queensland more broadly."  That is too long a bow to draw, in my view.
  1. [50]
    However, even if I were to accept on face value that the Roma 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.
  1. [51]
    I note that the primary purpose of NRA's application was to enable the local Woolworths supermarket to open on the Friday show holiday – and that a special event application had not previously been made for the Roma show, despite the event's longevity.
  1. [52]
    With respect to the economic significance of the show to the local community, I would observe that the family budget is not a "magic pudding".  Extended trading hours doesn't mean more money can be conjured up to spend – 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 Roma Show.  In the absence of evidence that retail spending in Roma increases in the show period, I cannot assume it to be so.
  1. [53]
    I acknowledge that the NRA has also cited the Hon. David Littleproud, Federal Member for Maranoa, who said "Show days and field days were uniquely Australian and provide huge economic spin-offs for local communities as well as opportunities for the businesses and services who exhibit."  The NRA has not further elaborated what I am to draw from that – however, it seems to me as though that comment rather anticipates 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. 
  1. [54]
    What is left then is the NRA's economic arguments peculiar to the profitability of Woolworths as a large supermarket, in circumstances where the store is closed on the Friday public holiday.  Mr Stout explained that:

…So you're baking chickens, you're baking bread, you're preparing meals, you're preparing a whole heap of food, and when you obviously have less continuity – so flour is used to work in a seven-day continuous environment – you probably would have seen decades ago in city areas where you had mass markdowns on a Saturday afternoon because that – the majority of the food wouldn't make it to Monday.  So those sorts of things happen.  So if you think about this in this particular case, you're going to have that twice in one week, being significant reductions and a significant start-up.

I would suggest that closing on the Friday is a significant detriment and the expectations of the customer on the Saturday is that everything is going to be rosy.  Unfortunately, it's going to take hours and hours and hours, and then additional labour to get the stores operationally where they need to be.[49]

  1. [55]
    I appreciate that the closure of the local Woolworths this year for the Friday public holiday, as in years past, may well impact on its profitability in the way described by the NRA.  However, that particular concern is outside the scope of the legislative criteria the Commission must consider at s 3(a)(ii) of the Act.
  1. [56]
    I also acknowledge Mr Stout's submission regarding the opportunity extended trading hours would present to retail workers who wished to work for public holiday pay rates on the "family Friday" of the Roma Show.  He said "…they need opportunities like this.  The voluntary provisions are in there so if they need to get away or if they wanted to spend time with their family or take their kids to the show, they can have the best of both.  But its disappointing to cut off the opportunity for those particular people and only give them the chance to spend and not earn."[50]  I have found that argument persuasive in the past and have some sympathy with it.[51]  Notwithstanding my Decision in this case would effectively deny retail workers at the local Woolworths that opportunity, I am encouraged by the NRA's submission that there may yet be additional hours on offer "to get the stores operationally where they need to be" on Saturday.  However, in my view that particular concern does not reach the threshold of the Commission's consideration of the event's economic significance – but is rather limited to the personal.  Similar to my consideration at [53] – [54] above, I find that argument also to be outside the scope of the legislative criteria the Commission must consider at s 3(a)(ii) of the Act.
  1. [57]
    For those reasons, the NRA has failed to make a sufficiently compelling argument to disturb the allowable trading hours prescribed by the Legislature.

Consideration of Council's submission

  1. [58]
    The Act states that a submission made by a local government may also be considered in determining such applications.
  1. [59]
    At the hearing of this matter, Ms Marks made very persuasive oral submissions on behalf of Maranoa Regional Council that gave detailed recount of local circumstances, views and impact "on the ground".  Her key points are outlined earlier at paragraph [23] of this Decision. 
  1. [60]
    However, I was most impressed that Ms Marks had acted to raise the matter with the 17 members of the Roma Show Committee - and came prepared to give a detailed report on the shared view of all but one of them, in a very clear account that was thoughtfully nuanced to the local context.
  1. [61]
    Ms Marks' closing remarks are worth citing in their entirety here:

Look, Commissioner, could I just respond – finish my comments with something that I think is certainly a foundational piece of information that – look, everyone agrees that the show is culturally important and significant to the region, and especially to the town of Roma.  It is, in essence, the identity of Roma.  It's very much – you know, harking back to the agricultural roots.  Again, in this day and age, it is a – it's a committee of 17 members who actively work on this show each year.  This day kept as this day important for the show is critical.  It should be respected, I think, from a local identity perspective, and again, I see all of the economic arguments, but from a cultural and social perspective, it's an important event.  The State recognises that.

We seek to get that [indistinct] as a public holiday.  And I think it needs to be respected and whilst I understand the economic argument of the other side, you're not that big a community that staffing a range of the larger retailers is not going to impact us.  It will impact us, because those people will work, and their families won't attend.  This is the issue.  If – the majority of people working in these retail operations are women and working on part-time hours or working extended hours.  They are the central units usually galvanising attendance at the show.  It is a critically important cultural event, and it should be maintained and given the space to be culturally important.[52]

  1. [62]
    Ms Marks' submissions were largely complemented by those of the SDA, the union with coverage of the retail workers at the Woolworths supermarket in Roma that would be affected by my Decision.  I found the united perspective of Council and the SDA with respect to the particular local circumstances to be both persuasive and instructive in my considerations of this application.

Conclusion

  1. [63]
    In coming to this Decision, I have carefully considered the parties' submissions and all the material before me. 
  1. [64]
    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 a 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.
  1. [65]
    I have found that the Roma Show is a unique event of local significance.
  1. [66]
    It is not disputed that the Roma Show is culturally significant. 
  1. [67]
    For the reasons above, the NRA has failed to make a sufficiently compelling argument as to the significance of the Roma Show to the economy and the tourism industry.
  1. [68]
    However, if I am wrong on that point, I have gone on to explain why I have been so moved by the potential impact of the application on the local circumstances, in oral submissions well-articulated by Ms Marks on behalf of Maranoa Regional Council.
  1. [69]
    The shared position of Council on behalf of the town, and the SDA on behalf of the retail workers at Woolworths Roma, was also of note.
  1. [70]
    Having regard to the submissions and balancing those relevant factors, I find that the Roma Show is not a 'special event' within the meaning of s 5(1)(c)(ii) of the Act.
  1. [71]
    For the reasons set out above, I will not make the declaration sought. 
  1. [72]
    Order:

1.The application is dismissed.

Footnotes

[1] Affidavit of Mr Stout, 2 February 2022, Exhibit B – Description of location.

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

[3] T 1 – 2, lines 35 - 38.

[4] Ibid 38 - 42.

[5] Ibid 44 – 47; T 1 – 3, line 1.

[6] T 1 – 4, lines 19 - 21

[7] AWU submissions, 3 March 2022, 1 [1].

[8] Ibid 2, [2].

[9] Ibid [4].

[10] T 1 – 3, lines 39 - 42.

[11] Ibid 43.

[12] Ibid 43 - 47.

[13] T 1 – 4, lines 1 - 2.

[14] Ibid 3 - 4

[15] Ibid 3 - 9.

[16] T 1 – 6, lines 23 - 47.

[17] T 1 - 8, lines 1 - 14.

[18] T 1 – 7, lines 1 - 9.

[19] T 1 – 13, lines 7 - 11.

[20] T 1 – 7, lines 31 - 32.

[21] Ibid 30 - 37.

[22] Ibid 39 - 45.

[23] Email from Ms L. Armstrong, SDA, 11 March 2022.

[24] T 1 - 9, lines 8 - 35.

[25] T 1 - 8, lines 39 - 46.

[26] T 1 - 10, lines 36 - 37.

[27] T 1 - 9, lines 1 - 4.

[28] Email from Mr D. Stout, NRA, 9 March 2022.

[29] T 1 – 11, lines 34 - 39.

[30] T 1 – 12, lines 3 - 15.

[31] Ibid 22 - 23.

[32] Ibid 17 - 20.

[33] T 1 – 12, lines 33 - 42.

[34] T 1 – 13, lines 19 - 20.

[35] Ibid 29 - 34.

[36] T 1 - 9, lines 41 - 46.

[37] SDA Submissions, 4 March 2022, 1 [2]

[38] Ibid 1 - 2 [3].

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

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

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

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

[43] T 1 – 13, line 19.

[44] Trading (Allowable Hours) Act 1990 (Qld) s 5(3)(a)(ii).

[45] T 1 – 2, lines 38 - 42.

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

[47] Ibid.

[48] T 1 – 3, lines 43 – 47; T 1 – 4, lines 1 - 6.

[49] T 1 – 11, lines 27 - 39.

[50] T 1 – 12, lines 38 - 42.

[51] National Retail Association Limited, Union of Employers [2020] QIRC 112, [38].

[52] T 1 – 13, lines 16 - 35.

Close

Editorial Notes

  • Published Case Name:

    Re: National Retail Association Limited, Union of Employers

  • Shortened Case Name:

    Re: National Retail Association Limited, Union of Employers

  • MNC:

    [2022] QIRC 93

  • Court:

    QIRC

  • Judge(s):

    Member McLennan IC

  • Date:

    18 Mar 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
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

Cases Citing

Case NameFull CitationFrequency
National Retail Association Limited, Union of Employers [2025] QIRC 452 citations
National Retail Association Limited, Union of Employers [2022] QIRC 2332 citations
National Retail Association Limited, Union of Employers (2025 Weipa Fishing Classic) [2025] QIRC 1252 citations
National Retail Association, Union of Employers (Mount Isa Show) [2025] QIRC 1542 citations
1

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