RETAIL TRADING HOURS ACT 1987 - SECT 10
RETAIL TRADING HOURS ACT 1987 - SECT 10
10 . Categories of retail shops
(1) For the purposes
of this Act retail shops are assigned different categories as follows —
(a)
general retail shops; and
(b)
small retail shops; and
(c)
special retail shops; and
(d)
filling stations.
(2) Subject to this
Act, any retail shop that is not a small retail shop, a special retail shop or
a filling station shall be regarded as a general retail shop.
(3) Subject to this
Act, a retail shop shall be regarded as a small retail shop if —
(a)
neither motor vehicles, nor goods or services prescribed for the purposes of
this paragraph, are sold or provided at the retail shop; and
(b) the
retail shop is owned by one eligible person or not more than 6 eligible
persons trading in partnership or by a body corporate with not more than 6
shareholders all of whom are eligible persons; and
(ba) the
retail shop is operated for the benefit of the eligible persons referred to in
paragraph (b); and
(bb) the
eligible persons referred to in paragraph (b) are personally and actively
engaged in the retail shop; and
(bc) not
more than 25 persons (inclusive of the eligible persons who own and operate
the retail shop but excluding any person who is employed at the retail shop as
an apprentice under a training contract registered under the
Vocational Education and Training Act 1996 Part 7 Division 2) work in the
retail shop at any one and the same time; and
(bd) the
retail shop is owned and operated in accordance with the directions given
under subsection (3b); and
(be) no
owner of the retail shop is related, in the opinion of the chief executive
officer, to an owner of another retail shop that is in such close proximity to
the first-mentioned retail shop that, in the opinion of the chief executive
officer, those retail shops are to be regarded as occupying the same location;
and
(c) the
chief executive officer has issued a certificate in relation to the retail
shop certifying that it is a small retail shop in terms of this subsection,
and that certificate has not been cancelled.
(3a) A person is not
an eligible person for the purposes of subsection (3) unless —
(a) in
relation to a case where the person is the only person in question the person
—
(i)
is a natural person; and
(ii)
does not own or operate, either alone or together with
any other person, more than 4 retail shops except as a shareholder in a listed
corporation as defined in the Commonwealth Corporations Act 2001 section 9;
(b) in
relation to a case where the person in question is one of a group of persons,
the person —
(i)
is a person to whom the provisions of paragraph (a)(i)
and (ii) apply; and
(ii)
does not own or operate another retail shop together with
a person who is outside that group of persons; and
(iii)
does not himself or herself own or operate a retail shop
alone if 3 or more other persons in the group each own or operate a retail
shop that is not owned or operated together with the other persons in the
group; and
(iv)
does not himself or herself own or operate a retail shop
alone if another person in the group owns or operates 3 or more retail shops
that are not owned or operated together with the other persons in the group.
(3aa) The matters that
the chief executive officer may have regard to when determining whether an
owner of a retail shop is related to an owner of another retail shop for the
purposes of subsection (3)(be) include —
(a)
whether one owner is —
(i)
the spouse or de facto partner of the other owner; or
(ii)
a child of the other owner or of the spouse or de facto
partner of the other owner; or
(iii)
a parent of the other owner or of the spouse or de facto
partner of the other owner; or
(iv)
a brother or sister of the other owner or of the spouse
or de facto partner of the other owner;
and
(b)
whether one owner is a related body corporate in relation to the other owner;
and
(c)
whether one owner is a corporation and the other owner is —
(i)
an officer of the corporation; or
(ii)
a majority shareholder in the corporation;
and
(d)
whether one owner is accustomed or under an obligation, whether formal or
informal, to act in accordance with the directions, instructions or wishes of
the other owner in relation to the operation of the first-mentioned
owner’s retail shop; and
(e)
whether one owner is —
(i)
an employee or partner of the other owner; or
(ii)
an agent, banker, solicitor, accountant, auditor or other
person acting in any capacity for or on behalf of the other owner;
and
(f)
whether one owner is —
(i)
a trustee for the other owner; or
(ii)
a trustee of a trust of which the other owner is a
discretionary or other beneficiary.
(3ab) In subsection
(3aa) —
corporation has the meaning given to that term in
the Commonwealth Corporations Act 2001 section 57A;
officer has the meaning given to that term in the
Commonwealth Corporations Act 2001 section 9;
related body corporate has the meaning given to
that term in the Commonwealth Corporations Act 2001 section 9.
(3ac) A person who
operates a small retail shop is required to notify the chief executive officer
within 14 days after —
(a) a
person becomes or ceases to be an owner of the retail shop; and
(b) if
the owner of the retail shop is a body corporate — a person becomes or
ceases to be a shareholder of the body corporate.
(3b) The Minister may
by order give directions for the purposes of subsection (3) and any such order
may include directions with respect to —
(a) the
persons who shall be, and, the persons who shall not be, regarded as owners
for the purposes of subsection (3); and
(b) the
persons for whose benefit a small retail shop may be owned and operated; and
(c) the
extent to which any person other than a person who owns or operates a small
retail shop may benefit from the operation of the small retail shop; and
(d) the
extent to which the natural persons who operate the retail shop shall be
personally and actively engaged in the operations of the retail shop; and
(e) such
other matters (including a requirement that any statement made for the
purposes of this section be verified by statutory declaration) as the Minister
considers necessary,
and effect shall be
given to any such order.
[(3c) deleted]
(3d) A person who is
aggrieved by a decision of the chief executive officer refusing the issue of a
certificate under subsection (3)(c) may appeal to the Minister whose decision
is final.
(4) Subject to this
Act, a retail shop shall be regarded as a special retail shop if —
(a) a
certificate is issued by the chief executive officer in relation to the retail
shop specifying it to be a special retail shop within one of the categories of
special retail shops prescribed for the purposes of this paragraph; and
(b) only
the goods or services or both that are prescribed in relation to a special
retail shop of that category are sold or provided at the retail shop.
(5) A retail shop
shall be regarded as a filling station if the whole or part of the business of
the retail shop constitutes the sale of fuel and for the purposes of this Part
any pump or contrivance in a filling station for supplying fuel is deemed to
be included in the filling station.
[Section 10 amended: No. 1 of 1991 s. 6 and 14;
No. 47 of 2006 s. 6; No. 44 of 2008 s. 60; No. 40 of 2011 s. 4; No. 23 of 2014
s. 92.]