The NSW parliament has passed the Retail Trading Amendment Bill 2015 (NSW) which will allow all shops across NSW to open their doors on Boxing Day.
Previously the Retail Trading Act 2008 (NSW) (the Act) only allowed retailers to trade on 26 December if they were an exempt shop or if they were located in the Sydney Trading Precinct. This area was limited to the Central Business District and parts of the Eastern Suburbs. The changes to
the Act remove this restriction, allowing banks and retailers across the state to trade on 26 December. The changes will apply to Boxing Day 2015 and 2016, and the legislation will then be subject to further review.
The Fair Work Act 2009 (Cth) states that an employee is generally entitled to be absent from work on a public holiday. Despite this, an employer may request an employee to work if it is reasonable to do so, but the employee has the right to refuse unless that is unreasonable.
An employee who works on a public holiday is entitled to the public holiday provisions (such as penalty rates and minimum engagements) under the applicable award, enterprise agreement or contract of employment.
It is important to note that whilst an employer can make such a request, the Retail Trading Act 2008 makes it an offense for a bank or shop to open on Boxing Day unless all employees have "freely elected to work on that day." A person must not work because they have coerced, harassed, threatened or intimidated and they must not work merely because they are rostered, or required to do so by the terms of an industrial instrument.
Employers found to be in breach of these provisions in the Retail Trading Act 2008 may face penalties of up to $11,000 per employee concerned.