Shop Trading Hours Act Repeal (Easter Sunday) Amendment Bill and Easter Sunday Shop Trading Amendment Bill
Submission of the National Distribution Union to the Commerce Select Committee on the Shop Trading Hours Repeal (Easter Sunday) Amendment Bill and the Easter Sunday Shop Trading Amendment Bill
We seek leave to make oral representations on this submission
Introduction
1. The National Distribution Union (“NDU”) covers workers in a wide range of industries, including retail. We have collective agreements with department stores, supermarkets and a number of other retail outlets.
2. The NDU opposes any further deregulation of shop trading hours.
3. The 3.5 days per annum on which trading is currently restricted are days of major significance to many New Zealanders, and restricted trading promotes the important social purpose of allowing their common observance. 3.5 restricted trading days is a minimal limitation on the ability to trade. It should not be whittled away, and any economic benefits in doing so would outweighed by the adverse social consequences that would result.
4. However if the House were to determine that there should be further deregulation of shop trading hours, the NDU believes that:
4.1. Any deregulation should continue only to allow trading at Easter as an exception rather than a norm; and
4.2. Such deregulation should be limited to specific localities where there is an overriding public interest (as distinct from commercial interest) in making an exemption; and
4.3. Both Council support and an order-in council should be required; and
4.4. Should be limited to one day; and
4.5. Strong employee protections should reflecting the social, cultural and religious significance of Easter and recognise that shop trading remains the exception rather than the norm.
Opposition to Trading on Good Friday and Easter Sunday
5. Retail workers are frequently required to work on weekends, on public holidays and during evenings. Many retail workers only work during these times. Restricted trading days serve the important social function of allowing them to share a limited number of days of national significance with their families and friends, as well as the more general function of promoting common observance of such days.
6. The workers affected by deregulation will be predominantly the young, part-time and low (youth rate) paid weekend workforce. These workers are least likely to be in a position to refuse work on Good Friday and Easter Sunday, as their employment is built around their flexibility and availability outside school or tertiary study time. We note that 64% of employed 16 and 17 year olds work in retail jobs.
7. These workers are also the least likely to be union members and to have an awareness of their right to refuse work, even if this right is legislated. Their casual employment makes them vulnerable to simply not being offered the hours they do want to work. Thus it would be perfectly legal even if there was a right to refuse work for an employer to simply reduce a worker’s hours or not offer them further hours in many cases.
8. Given the significance of Easter as one of the very few long weekends that almost all workers (including shift workers in other 24/7 industries) have free of work most years, the likelihood of younger workers or other casual retail workers being (in practical terms) required to work at Easter will have an impact on arrangements in thousands of families.
9. We submit that Parliament should be actively facilitating family/whanau and community development and interfering with this rare opportunity for family and community events, including holidays, tournaments, reunions and other gatherings would be detrimental.
10. Shop trading hours in New Zealand are already highly deregulated. 3.5 protected days per annum is not an unreasonable limitation on retailers’ ability to trade, and is unlikely to impact on the profitability of the retail sector in general over the course of a year.
11. We are not aware of any real need or desire for widespread deregulation having been demonstrated.
12. We therefore oppose general liberalisation of current restricted trading provisions whether on Easter Sunday or on other days.
13. When this matter was last before the Committee, The Working Party report appeared to regard liberalising trading on Easter Sunday while continuing to restrict trading on Good Friday, ANZAC Day morning and Christmas Day as a reasonable compromise between calls for greater liberalisation and calls for preservation of the status quo.
14. In particular the Report stated [at p 17]:
“With one day of the current 31/2 restricted days removed a clear line could be drawn under the remaining 21/2 days…”
15. However the inclusion of a proposal for allowing trading on Good Friday within the Easter Sunday Shop Trading Amendment Bill shows that any deregulation of trading on Easter Sunday would not put an end to debate. Instead it would merely see the focus of the deregulation call shift to another day. Therefore we believe it would be misguided for deregulation of trading on Easter Sunday to be seen as a compromise position or a way of bringing resolution to this matter.
Method of Deregulation
16. The NDU believes that it is important to protect the ability of as many workers as possible to observe important days together with other New Zealanders.
17. Therefore if there is to be any liberalisation, it should be narrowly focused on meeting a defined need, and should be limited to specific localities where traders are particularly dependent on holiday trade.
18. The purpose of the legislation should remain clearly directed towards prohibition of trading on the protected days, with trading only to be permitted where there is an overriding public interest for doing so.
19. Any further opportunity to trade on the restricted days should therefore:
19.1. Meet clear criteria set by statute. These criteria should reflect the desirability of prohibiting trading and limit any further exemptions to those which are in the public interest having regard to the nature of Easter as a time for family/whanau and community holidays and events. A public interest test, as distinct from a commercial interest test should be developed.
19.2. As well as being required to meet the public interest test, the ability to apply for exemptions should be limited to areas which can demonstrate that they have an exceptional and significant visitor population over Easter and that the restricting trading would do more harm to the goal of facilitating family/whanau and community development than good.
19.3. Any exemption should require both Council support and an order-in council with territorial authorities to have the ability to recommend that trading be allowed in defined areas, in accordance with the criteria.
19.4. Decisions on the granting of exemptions to be made at a ministerial level, thereby ensuring consistency nationally.
19.5. Exemptions should be limited to one day; and
19.6. Strong employee protections should reflecting the social, cultural and religious significance of Easter and recognise that shop trading remains the exception rather than the norm.
20. A general right of Councils to deregulate across their whole territory with no requirement to meet a public interest or other test justifying exepmtion is strongly opposed by the union. In most areas there is no justification or demand at all for liberalisation except a commercial one. Where limited exemptions are sought there should not be a general extension of those to the whole TLA area as proposed by the Chadwick Bill. Shopping in urban areas and provincial cities is increasingly privately regulated by the owners of large developments and malls. The ability of workers or community interest groups to counter a determined and well resourced push for liberalisation by these huge organisations will be very limited.
21. We further submit that existing exemptions should be reviewed against the same statutory criteria, within a maximum of three years.
Enforcement
22. Most retailers do comply with existing law on shop trading hours. However it is recognised that a number of companies do trade on Easter Sunday in direct defiance of the law, apparently regarding any fine they may have to pay as being a cost of business.
23. We consider that maximum penalties should be set at a level at which it is not economic for shop owners to decide to cynically break the law and face the risk of a fine. Clearly the present level of fines is inadequate to achieve this end. We note that the Shop Trading Hours Act (South Australia) provides for fines of up to $100,000. We submit that in New Zealand the maximum fine available should be set at a similar level.
Protection of Workers where Trading is Allowed
Easter Sunday as a Public Holiday
24. It is notable that of the four days on which trading is restricted, three are public holidays and only Easter Sunday is not.
25. Presumably the reason that Easter Sunday is not currently a public holiday while the arguably less significant date of Easter Monday simply reflects the fact that when the present Easter holidays were codified, few New Zealanders worked on Sundays. (Until the enactment of the Holidays Act 2003, the Christmas and New Years’ holidays were “Monday-ised” if they fell on a weekend, regardless of whether affected employees normally work on the weekend. Consistent with this it may have been seen as being redundant to create a public holiday on Easter Sunday itself.)
26. However increasing numbers of New Zealanders now work on Sundays, including Easter Sunday, and this number will be increased further if there is to be any liberalisation of trading on Easter Sunday.
27. If there is to be any liberalisation of trading on Easter Sunday, it would be desirable to make Easter Sunday a public holiday, creating a consistent and easily understood statutory framework. If this approach were followed, employee protections could then be included within the Holidays Act and apply to all employees required to work on Easter Sunday, rather than be limited to retail workers and contained within shop trading legislation.
28. We therefore submit that the Committee should recommend an amendment to the Holidays Act, should there be any liberalisation of trading on Easter Sunday.
Protections to be incorporated into Principal Act if Easter Sunday Not a Public Holiday
29. If Easter Sunday is not made a public holiday, it is submitted that the Act should guarantee entitlements consistent with statutory entitlements relating to public holidays.
30. Union density is relatively low in the retail sector, and conditions of employment in retail are relatively poor compared with most other 7 day industries. Wages are typically relatively low, and penal payments for night work or work done on weekends being almost entirely absent.
31. Most workers who would be working under an exemption would be young workers on low (and subject to other legislation currently before the House) often minimum youth rates of pay.
32. Most workers will be in no position to negotiate protections into individual or collective agreements before next Easter.
33. Presently shop workers who normally work on Sundays are often paid on Easter Sunday, even if there is no work for them. However if Easter Sunday were no longer a restricted-trading day, it is likely that this condition would be lost. Indeed the NDU’s largest Collective Agreement, with Progressive Enterprises (Woolworths, Countdown, Foodtown) provides that if trading is permitted on Easter Sunday then the existing provision to pay workers who would otherwise be on duty for the day and to give an alternative holiday for those on duty in a store currently open for trading (through exemptions) or for store workers working when the store is not open (such as shelf-fillers), will be nullified. In other words passing these bills will reduce the conditions of employment of those supermarket workers who already work on Easter Sunday.
34. Given this context, there is a clear need for legislation to ensure adequate minimum employment conditions.
35. If Easter Sunday is not made a public holiday, it is submitted that the principal Act should be amended to appropriate conditions of employment to shop employees.
36. Such conditions should include:
36.1. The right to relevant daily pay where an employee does not work on Easter Sunday, either because the shop does not open or because the employee exercises his or her right not to work on the day; and
36.2. The right to be paid at least 1.5 times relevant daily pay for time worked on Easter Sunday, and an alternative holiday for employees who are normally rostered to work on Easter Sunday and who do in fact perform such work.
37. We are aware that an extra public holiday or public holiday-like entitlements could be seen as an additional cost to business. However we submit that:
37.1. The purpose of a statutory entitlement to penal rates for working on a public holiday is to deter employers from requiring employees to work on days of national significance.
37.2. For those shops that already give retail employees a paid day off on Easter Sunday, there would be little or no additional cost if they did not open for trading.
37.3. If shops are not prepared to pay staff time-and-a-half and grant an alternative holiday in order to open on Easter Sunday, then it would appear that the case for liberalisation of Easter trading is less compelling than some make it out to be.
Right to Refuse to Work on present Restricted-Trading Days
38. Any extension of the ability to trade on the present restricted-trading days should be accompanied by a right for shop employees to refuse to work on those days.
39. We submit that this right should not be able to be abrogated through a provision in an employment agreement.
40. Rather, we submit that retail employers who wish to open on the present restricted-trading days should have to seek the agreement of employees to work on those days, on a case by case basis.
41. We consider that this would offer the best balance between the interests of employers and employees, as:
41.1. No employee could be compelled to work on a day that has until now been set aside because of its special significance; while
41.2. In our experience, where employers are willing to pay penal rates (such as on public holidays), many employees will be happy to work on the relevant day, even if it is not normally a working day for them. We consider that if employers are willing to make a reasonably attractive offer to their employees, they are unlikely to face significant difficulties in finding sufficient staff to open for trading.
42. We submit that the protections contained in clause 7 of the Easter Sunday Shop Trading Amendment Bill and clause 8 of Shop Trading Hours Act Repeal (Easter Sunday) Amendment Bill are inadequate.
43. In both cases the right to refuse to work on the present restricted trading days can be over-ridden by a simple clause in an employment agreement.
44. Experience would suggest that employees who are not represented in negotiations for individual agreements tend to focus narrowly on a few core issues such as wages, if there is any meaningful negotiation at all. It is therefore likely that for many employees, the right to refuse to work on these days may be lost immediately, and without any specific consideration having been given.
Conclusions
45. We oppose both Bills.
46. However if there is Select Committee support for reform, we would propose as follows:
46.1. Criteria –
- reflect the desirability of prohibiting trading in general at Easter
- meet a public interest test having regard to the nature of Easter as a time for family/whanau and community holidays and events
- be limited to shops or areas which can demonstrate that they have an exceptional and significant visitor population over Easter and that restricting trading would do more harm to the goal of facilitiating family/whanau and community development than good
46.2. Process –
- Territorial Local Authority resolution following consultation; and
- Order-in-council
46.3. Employee Protections
- Public holiday; or
- Equivalent protection; and
- Right to refuse work on a case by case basis (not overridden by an employment agreement)
Contact person
David Fleming
Solicitor
Direct Dial (09)622-8364
Email Dfleming@nduunion.org.nz
