Brisbane City Heart Business Association Ltd v Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees and Another [1994] QIRC 214 (1994) 146 QGIG 187

186 QUEENSLAN D GOVERNMENT INDUSTRIAL GAZET TE [20 May, 1994 20 May, 1994] QUEEN SLAND GOVERNMENT IND US TRIAL GAZETTE 187 #################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION I ND UST RIAL RELATIONS ,\CT 1990 Trading Hours Act 1990 s. 5.1 - application for variation oi trading hours order Bris ba ne City Heart Business Association Ltd . ANO Shop, D istributive and Al lied Employees Association (Queensland Branch) Un ion of Employees and Another (No . 8245 of 1994) T RA DING H OU RS - NO N -EXE M PT SHO PS TRAD I NG BY RETA IL - STA TE CHIEF INDUSTRIAL COMMISSIONER HALL COMMISSIONERS NUTTER, B LOOM FIELD 5 May 1994 Extension of Trading Hours - Bri sbane City Heart - Trading Hours - Failure to Observe Directions Order - Possible Prejudice to Parties - Elem en t of Pub lic In terest - Appl icatio n Grant ed in Part. DECIS ION . Discussions between the Premier's Department and the Pre fecture of Osaka relating to the opening of the international airport at Kansai have l ed to an agreement between the Department and . t he relevant High Priests pursuant to which the Tenpn-Matsun Fes tival, wh ic h has not pr ev io usly been held outside Japan, w ill be held in Brisbane on the week-end of 7 and 8 May 1994. The Festival, wh ich will invo lve a substanti al amount of entertainment, includes a parade of shrines and some 1__,200 Japanese persons through the streets of Bris bane from King George Square to the South Bank area on the afternoon of Saturday, 7 May. T he procession,, whic h_wil l commence in King George Square at or about two o clo ck in the afternoon will at one point sp lit i_nto two groups. One of the groups, consis ting of women an d chi ldren, will march through t he Ci ty Mai! in the d1rect1on . of South Bank . T he other group, con sisting of adult mal es, wil l march up Elizabeth Street in the direction of the South Ban k area. The two groups will, as we understand it, jo in together again near the corner of George St reet an d Queen Street. Thoug_h a!7xious to promote t ies with Japa n and unde rsta ndi ng ol the honour wh ich has been bestowed upon this City, the merchants within the Area of Ci ty Heart of Inner City of Brisbane are concerned with the dislocation that the procession may cause to their business es over a period of one and a-half to two hours. The ir ~oncern is t;inderstandable. Saturday, 7 May 1994 Is the day betore Mothers Day. The evidence establishes tha t in the City Heart the Saturday before Mother's Day is one of the best trad ing days of the year. H indrance to the conduct of tr ade on that day for a period of one and a-half to two hours wo_uld be a su_b_stantial interference with t he merchants' profit taking opportunities. G iv en the n at ure of the Festival, any attempt by t he merchants to counteract t he drawing power of the procession with attractions and events designed to retain cus_to m ers within their stores would project an image of this State which would 111 no way enhance i ts opportun i t ies to develop a substantial and healthy relationship with Japan. We are sympathetic to the view th at some limited extension of trading hours should be granted to compensate fo r the time which would otherwise be lo st. The initial react io n of the Brisbane City He art Bus i ness Association Ltd. to the difficulty whic h had befallen them was to file an Applicat io n seek ing the extension of trading hours until 7.00 p.m. on Saturday, 7 May 1994. The Appl ication was filed on 28 March 1994. On the same day t he Ind us tri al Regist rar i ssued a Di rectio ns Order requiring the Appl ic at ion to be served on some 18 parties. The Industrial Reg istrar al so required the Applicant to cause an advertisement to be published in the Bri sbane Courier ,'vla il giving brief particula rs of the appl ication, t he date and place of hearing, and the time before which potential re spondents might apply to the Industrial Reg istrar for leave to be heard. From t ha t point on the case is a sad tale of woe. Not one of the 18 persons na m ed by the Industrial Registrar was in fact SeNed with the App lication. An advertisement was pl aced in the Courier Mail. It inaccurately describ ed the area with in which the extension of trading hou rs was to appl y, we should add, though anyone interested in trading hours who saw it must have been put on enquiry. Worse was to follow . On 13 Ap ril 1994 the Applican t filed an Amended Application. Once again nobody was served w ith the Amended App lication. Once aoain an advertisement was published in the Courier Ma il. 0 The advertisement was substantial ly correct but was al so uninformative. Just how many people saw the advertisements we do not know. Certainly, each of the three industrial organisations which appea red befo re us to oppose the application, viz. Queensland Retail Traders and Shopkeepers Associa ti on (Industrial Organization of Employers), Shop, Distributive and Alli ed Emp loyees Association (Queensland Branch) Un ion of Employees and The Australi an Workers' Un io n of Employees, Queensland, failed to notice the advertisement. II appears that as a result of a telephone conversation between Mr Ketter of the Shop, D 1stn but1ve and Allied Employees Assoc iat;on (Queensland Branch) Union of Employees and Ms Rice of the Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Emp loye rs ) upon another matter, Mr Ketter became aware oi the Appl ication and the Amended Appl ication and Ms Rice became aware of the deficiencies in service. As a result of Ms Rice's intervention and efforts potentially in terested parties were 'served by facsimi l e' . But they were 'served" les s than 24 hours befo re the commencement of the h~aring and, as we un derstand It (m some cases) after four o clock in the afternoon. We view the deficiencies in service very seriously, It is essential to the proper o pe rat ion of the Commission whether exercising jurisdiction under the lndusuial Relations Ai!t 1990 or under the Trading Hoim Act 1990 that all persons with a proper inte rest In the proceedings have the opportunity to be heard. We note that in the case of the Trading Hou rs Act 1990 the matter of general principle_ is. g iven specific statutory recogn ition, see s. 5.3(3). The publication of accurate advertise ments in newspapers is, in the case of mat ters under the Trading Hours Act 1990 equally important. Often, c itiz ens of whom the Industrial Registrar has no k_nowledge wi ll wi sh to oppose an applicat io n, e .g . the folk who live in the house adjoining the car park of a one stop shopping centre. We have given the most serious consideration to declining to hear either the Appl1cat1on or the Amended .Application . We have however to bear in mind that by s. 7.7(3) of t he Trading Hours Act 1990 we are, inter alia, directed to apply as far as may be (with any necessary adaptati ons) and subject to the provisions of the Trading Hours Act 1990, in relati on to the exercise of jur isd iction under that Act, the provisions of the Industrial Relations Act 1990 that govern 'proceedings in the Industrial Court, the Industrial Commission or an Industrial Magistrates Court'. Sect ion 70(2) of t he lnduslrial Relations Act 1990 directs t ha t decisions of the Industri al Commission are to be governed 'by equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms, and having regard to both the interests of the pe rsons immediately concerned and of the community as a who l e'. In this case one of the 'parties· immediately concerned, viz. th e traders i_n the Ci ty _ Heart, will be serio usly disadvantaged ii some extension to trading hours 1s not granted. We qui te accept -- 1 of 2 -- 18 8 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE that each of the three industrial organisa1 ions who appeared 10 oppose the extension of tradi ng hours was hampered in the preparati on of i 1s case by the Appl icant's om ission to give proper notice. Ho wever, not one of those induslrial organisations is ab le to point to ev idence which it might have been able to lead if time had not been so desperately short. There is the addit io nal consideration that the Staie of Queensland faces potential international embarrassment if the Tenjin-Matsuri Festival becomes a matter of commercial controversy and/or merchan ts decide to compete with the procession ior the attention or ci1izens within the City Heart on 7 May 1994. On balance we have decided to grant the App lication in its original iorm, i.e. we propose to permit an extension of tradi ng hours in the Area of City Heart of Inner City of Bri sbane until 7.00 p.m. on Sa turday, 7 May 1994. We reJeCl the case put in support of the Amended Applicat ion w hich sought an extension of trading hours until 9.00 p.m. Wi th the greatest of respect to the Brisbane Ci1y Heart Business Association Ltd. the Amendment, which seems to have been inspired by the discovery that as part of the festival there wou ld be a major fireworks display al South Bank aft er the setting of the wn, appears to us to be no more than an attempt to convert adversity into advan tage. We are prepared to allow the City Heart Merchants some ad dittonal trad ing time to compensate for the disrup tion wh ic h the procession must inevitably cause to trade on a prime busi ness day. We are not prepared to over-compensate them for the disruption, no r are we prepared to permi t an activity at Sou th Bank to be treated as Ju st ificat ion for permitting traders on the adjacent Northern side ot the river to extend their normal hours of trading. In view of the difficulties as to notice which have arisen in this case the Chief Commissioner w il l convene a conference of pa rti es in the retail industry to canvass improvements to the existing system. The Commission orders accordingly. D.R. H ALi, Chief Industrial Commissioner. BJ NU TTER , Commissioner. A.l. BLOOMFIELD, Commissioner. Appearances :- Ms C. Rice of the Retai lers' Association of Queensland limited, Union of Employers and with her Mr D . Clare for the Br isbane City Heart Bus i ness Association I td. Mr R. Swain for the Queensland Reta i l Traders and Shopkeepers Association (lndus1rial O rganization of Employers). Mr C. Ketter for the Shop, Distributive and Allied Emp loyees Association (Queensland Branch) Un ion of l mp loyees. Mr K. McKay for The Aus1ralian Workers' Union uf Employees, Queensland. Operative Date: 7 May 1994 Decision - Extension of Tr ad ing Hours - Bri sba ne City Heart Released: 6 May 1994 #################################################### [20 May, 1994 20 May, 1994] QUEENSLAND GOVERNMENT INDUS TRIAL GAZETTE 189 -- 2 of 2 --