After a recommendation in an independent review to trial Boxing Day trading in 2015 and 2016, the state government has confirmed it will continue to legislate for the holiday to apply to all of NSW.

Background

Before reforms in 2015, shoppers located far from Bondi Junction and Sydney’s CBD could not access Boxing Day sales. However, this changed after a successful day of sales over the past two years. With the introduction of the trial, all shops were able to trade for the first time. Consumers have taken advantage of this extra day by spending an estimated $800 on bargains in 2016. Treasurer Dominic Perrottet said to news.com.au the statistics demonstrate “there is clear support for giving all retailers the option of opening their doors on one of the biggest trading days of the year.”

Outcome

Although retailers are permitted to operate on a public holiday, there is one condition business owners must abide by. Business owners must give their staff a choice to work. Following feedback from retailers, employees and shoppers, the state government plans to level the playing field for both shoppers and businesses. The state government intends to achieve this by implementing an advertising campaign to ensure retailers and employees are fully aware of their rights before this year’s Boxing Day.

In response to these cases, NSW Industrial Relations investigators reinforced the law requires staff to freely elect to work. “Freely elect to work” means workers must not be coerced, harassed, threatened or intimidated by or on behalf of the occupier of the shop. This includes rostering a person to work on the next day.

Under the current law, there are penalties for businesses who pressure their employees to work on Boxing Day. For example, business may face fines of up to $11,000 per employee whereas landlords who coerce retailers to open will face fines of up to $22,000. Therefore retailers, particularly in the former Sydney Trading Precinct, should be aware of this condition. If an employee chooses not to attend work on Boxing Day and subsequently experiences adverse consequences, the employee can lodge a claim for adverse action, discrimination or bullying under the Fair Work Act 2009 (Cth).

For more information about adverse action, check out the Fair Work Ombudsman’s Protections At Work.

Final Thoughts

Over the next few months it is expected legislation will enable the 2015 reforms to be introduced.

If you require advice on how to manage employment matters in your business, LawPath recommends getting in touch with an employment lawyer.

Let us know your thoughts about the state government’s commitment to stick with Boxing Day trading by tagging us at #lawpath or @lawpath.

Fiona Lu

Fiona is a Paralegal working in our content team which aims to provide free legal guides to facilitate public access to legal resources. With an interest in information, media, consumer and employment law, her primary focus is on how technology will affect the future of the legal industry.