QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:		Simpson v National Retail Association Limited, Union of Employees [2015] QIRC 172
	
PARTIES:	
	Nicole Simpson
(Applicant)

v

National Retail Association Limited, Union of Employees
	
CASE NO:
	B/2015/12	
PROCEEDING:
	Application to reopen TH/2014/8	
DELIVERED ON:
	24 September 2015
	
HEARING DATES: 
	5 June 2015
27-28 July 2015
	
HEARD AT:
	Brisbane
	
MEMBER:
	Deputy President Swan
	
ORDERS:
	1.	Application dismissed.
	
CATCHWORDS:	INDUSTRIAL LAW - Application to reopen TH/2014/8 made by one witness in the substantive hearing - matters relevant to s 26 considerations fully addressed in substantive hearing -"no serious factual error" and "no misapprehension on the part of the Commission.
	
CASES:	Industrial Relations Act 1999 (Qld)
Federated Engine Drivers and Firemen's Association of Australasia, Queensland Branch, Union of Employees (1987) Vol. 126 QGIG at 340
Lawrence Thompson v Global Seafood Pty Ltd (No: C21 of 1991, 16 September 1991)
QNU v Aged Care Queensland Inc.  (1996) 152 QGIG 1857 at 1858m
	
APPEARANCES:	Mr G. Raptis, Master Grocers' Australia for Nicole Simpson.
Mr A. Herbert, Counsel for National Retail Association Limited Union of Employees.

Decision

[1]	By a decision and Order dated 27 April 2015, the Commission granted, in part, an application by the National Retailer Association (NRA) to amend the Trading Hours - Non-Exempt Shops Trading by Retail - State Order (the Decision) to permit non-exempt retailers located in Dalby to trade on Sundays between the hours of 10.30am and 6.00pm and public holidays between 8.30am and 5.30pm.

[2]	What had been sought by the NRA in its application was trade for non-exempt stores in Dalby on Sundays between 9.00am and 6.00pm.

[3]	This amendment by the Commission to the Order for a later start on Sundays for non‑exempt stores was based on this consideration:

"In granting this application I am conscious of the fact generally that for many small businesses within this town, Sunday, and often Sunday morning, is a significant trading period for them.  I am also conscious of the fact that there is considerable opposition within Dalby to the application.

I have taken into account the vicissitudes of life in a town which has for some time benefited from the mining industry within the region but for which that decline is now well-documented."

[4]	In determining that the opening hours on a Sunday for non-exempt stores would be 10.30am, the Commission added:

"This should permit small businesses in Dalby to at least have some opportunity to trade on Sunday morning unencumbered."

[5]	One witness in the hearing in Dalby, Ms Nicole Simpson, who was opposed to the Application, seeks to re-open those proceedings.

The Substantive Hearing

[6]	The hearing was undertaken in Dalby and extended over three days.  Appearances were entered by the NRA, Master Grocers Australia Limited (MGA)/Queensland Retail Traders and Shopkeepers' Association (QRTSA), the Local Government Association of Queensland (LGAQ) and the Shop, Distributive and Allied Employees Association (Queensland Branch) (SDA).

[7]	NRA called 12 witnesses; MGA/QRTSA called 20 witnesses and one witness was called from the LGAQ.  Of those witnesses, 15 affidavits were admitted by consent from both the Applicant and MGA/QRSTA.  The Commission made it clear to those involved in this hearing what the ramifications of accepting opposing statements by consent were.  As cautioned by the Commission, this might be a matter which has caused confusion in the minds of some witnesses in this case.

[8]	Ms Simpson is the General Manager of the Western Downs Cooperative Trading Society which owns the Dalby Foodworks store.

[9]	From its location in the town, that store is in competition with Coles and Woolworths stores located nearby in Dalby.

[10]	Ms Simpson's evidence centred, at that time, upon the prospective loss of trade on a Sunday if the application was granted.  However, other concerns related to Sundays being regarded as a family and religious day.

[11]	The date for the commencement of trade on Sundays in Dalby for non-exempt stores was 29 May 2015.

Ms Simpson's Submissions with regard to re-opening the matter

[12]	Section 280 of the Industrial Relations Act 1999 states:

	280	Procedures for reopening

			(1)	Proceedings may be reopened, on application by a person under subsection (2), by -
				(a)	for proceedings taken before the full bench-the full bench; or
				(b)	otherwise-the commission.

			(2)	An application for reopening of proceedings may be made by-
				(a)	the Minister; or
				(b)	a party to the proceedings; or
				(c)	for proceedings that are not about a certified agreement-
					(i)	an organisation whose members are bound by, or claim to be affected by or dissatisfied with, the proceedings; or
					(ii)	a person who is bound by or claims to be affected by or dissatisfied with the proceedings, and who satisfies the commission that the person is not an officer of, or acting for, an eligible association.

			(3)	If the commission reopens proceedings, it may - (Current as at 3 July 2015).
				(a)	revoke or amend a decision or recommendation made by it; and
				(b)	make the decision or recommendation it considers appropriate.

			(4)	If a recommendation of the commission has been acted on by the Governor in Council and the commission later revokes or amends the recommendation, the Governor in Council may-
				(a)	cancel the action taken on the recommendation to accord with the commission's revocation or amendment; or
				(b)	amend the action to accord with the commission's revocation or amendment.

			(5)	Failure to give notice to a person of the proceedings, or any part of the proceedings, leading to the making by the commission of a decision binding on the person-
				(a)	does not invalidate or otherwise affect the decision; but
				(b)	if the person is one on whose application the commission may exercise its powers, the person's failure to participate in the proceedings because of the absence of notice does not affect the person's application for reopening of proceedings.

			(6)	If the commission grants an application for reopening, it may give the retrospective operation to its decision made in the reopened proceedings it considers appropriate.

[13]		It is clear that neither Ms Simpson nor the MGA/QRTSA are entitled to appeal against the Order made by the Commission in the substantive hearing.  None of those persons are bound by the Order, as that Order only applies to the operators of non-exempt retail stores.

[14]	Primarily, the NRA submits that, Ms Simpson was a participant in the substantive hearing who gave her evidence and is now disappointed with the decision.

The Extent of the Power under Section 280

[15]	Section 280 confers a discretionary power on the Commission.

[16]	Moynihan P in Federated Engine Drivers and Firemen's Association of Australasia, Queensland Branch, Union of Employees states:

"The purpose of the jurisdiction to reopen was not to provide a party wise in hindsight and enlightened by failure, an opportunity to see if it could retrieve the position.  The strong public interest in the finality of proceedings, which had been heard and determined on the merits, is reflected in a requirement that in order to found the exercise of a jurisdiction to reopen it is shown that some vital and relevant material which is not available at the hearing is now available".

[17]	Moynihan P also stated in Lawrence Thompson v Global Seafood Pty Ltd:

"This is an appeal against a decision of the Industrial Commission not to reopen the appellant's case for reinstatement, that case having had the outcome that the application for reinstatement was refused.  It is plain from a consideration of the reasons that the Commission gave for its decision to refuse reinstatement that it had before it a body of evidence in which there were conflicting accounts of relevant aspects of the relationship between the appellant and the respondent, his employer.  The conflict was not, on all occasions, resolved by the Commission contrary to the appellant's contentions of view point…".

[18]	In the circumstances of this matter, I am not convinced that Ms Simpson has some vital and relevant material which was not available at the hearing and is now available, sufficient to show the real prospect of serious factual error or misapprehension on the part of the Commission.

[19]	When considering the criteria of s 26 of the Trading (Allowable Hours)Hours Act 1990 of which the Commission must 'have regard to', there will always be competing interests to appropriately weigh and consider and many different trading hours applications require a consideration of different factors which are pertinent to that particular application.  For example, there can be a greater emphasis placed on tourism in some areas of the State, where for other locations, tourism is not a relevant factor for consideration.

[20]	The evidence to which Ms Simpson now refers, in my view, is primarily evidence already taken into account in the substantive hearing and the resultant decision.

Ms Simpson's Specific Claim [Submissions]

[21]	Below are the general claims made by Ms Simpson:

•	Para 39.	"... reasonable and equitable to reopen the proceedings so as to enable the Applicant to clarify particular matters arising from the reasoning of the Commission in its decision with respect to the criteria contained in s 26 and to provide further relevant information…".

•	Para 47.	"… the weight attributed to each criterion under s 26 is at the Commission's discretion; however, the consideration of each criterion must nevertheless be genuine.  Further the Applicant submits that based on the above-mentioned comments, it is open to the Commission - in its evaluation and assessment of the evidence - to give consideration to matters not raised in submissions or elicited from responses under cross-examination".

[22]	Below are the specific claims concerning Section 26 of the Act made by Ms Simpson:

		Under the heading of (a) the locality, or part thereof, in which the non-exempt shop or class of non-exempt shop is situated.

•	Para 50.	"No cogent or probative evidence was advanced to corroborate the observations of Mr Russell...".

•	Para 58.	"The Applicant further submits that there was no evidence before the Commission to indicate that Dalby consumers are deprived of the opportunity to shop on Sunday to fulfil their needs."

•	Page 63.	"…the evidence before the Commission highlighted … submitted that there was no plausible evidence adduced to demonstrate … Commission has been misled in arriving at its conclusion regarding 26(a)."

Under the heading (b) & (c) the needs of the tourist industry or other industry in such locality or part; - the needs of an expanding tourist industry

•	Para 66.	"The Applicant submits that no probative evidence was adduced for the above conclusion to have been drawn by the Commission, particularly the underlined comments."

•	Para 73.	"The Applicant submits that the evidence before the Commission did not suggest or substantiate the Commission's finding that a "reasonable number of tourists" are drawn to Dalby.  There was no evidence tendered to indicate the number of tourists visiting Dalby".

•	Para 74.	"The Applicant submits that the NRA evidence did not demonstrate a deficiency in the existing trading hours regulations governing Dalby (at the time) to the extent that it could not properly cater for the needs of the tourist industry or any other industry in the area without seven day trade."

•	Para 77.	"conflicting evidence … pertaining to the Dalby population."

	Under the heading of (e)"the public interest, consumers' interest, and business interest (whether small, medium or large".

•	Para 87.	"the Commission misapprehended the facts which consequently led to an incorrect conclusion."

	Public Interest

•	Para 92.	"The Applicant submits that whilst it is not disputed that some Dalby residents shop in Toowoomba on Sundays, there was nothing before the Commission to substantiate the claim that this was motivated by a need to do so arising from any apparent deficiency in trading hours regulations relating to Dalby."

•	Para 93.	"Consequently, the Applicant submits the Commission has erred in its assessment of the NRA evidence as having demonstrated that Dalby residents travel to Toowoomba on Sundays because Sunday trading for non-exempt shops is not permitted in Dalby."

General concerns regarding consumer's interest

•	Concerns related to the QUT survey conducted on behalf of the NRA.  The concern primarily centred upon whether consumers were drawn to shop in Toowoomba on a Sunday because non-exempt shops were closed in Dalby on that day.

Business interest

•	The concerns under this criterion related to a meeting held by the Chamber of Commerce in Dalby.  Also considered was the claim that the majority of businesses in Dalby opposed the application.

	Under the heading of (g) "the likely impact on the order of employment"

•	Para 79.	The Applicant submits that this pertinent evidence was not available at the time of the initial hearing for the Commission's due consideration under this criterion, and it documents with certainty the impact of an extension of trading hours for non-exempt retailers on smaller stores, and the consequent effect on the order of employment for those businesses.

	Under the heading of (h) "the view of any local government in whose area the order is likely to have an impact:"

•	Para 181.	The Applicant submits that the Commission has erred in its assessment of the evidence that was used to ascertain the views of local government for the purposes of s 26(h).  The Applicant says that the Commission erred in its assessment of - including the weight to be attributed to - the council's decision to oppose the NRA application.

Considerations

[23]	From the breadth of the Applicant's concerns, it is obvious that on each primary criterion required to be considered by the Commission pursuant to s 26 of the Act, an objection is raised by the Applicant.

[24]	The Commission 'must have regard to' all of the criteria contained within s 26 of the Act.  It is clear that, on many occasions, in trading hours applications, not every criterion is enlivened.  By way of example, in this application s 26(g) - the alleviation of traffic congestion - is not a matter for consideration and no submissions were made to that effect.

[25]	In considering the extent of the power under Section 280 of the Act, de Jersey P in QNU v Aged Care Queensland Inc. referred to the rulings of Moynihan P in FEDFA said:

"Allowing on the one hand for a strong public interest in the finality of proceedings, there is a balancing and also strong public interest in accuracy.  Whilst I would unhesitatingly exclude a reopening to allow a party, 'wise in hindsight' to reargue the correctness of a disappointing result, I am not persuaded that a Commissioner might not, in reliance on Section 46, reopen to permit further examination on the basis of an order previously made, where he or she perceives the real prospect of serious factual error or misapprehension on the part of the Commission."

[26]	Before applying these principles to the matter at hand, the background to the Application is as follows:

•	This Application was heard by the Commission on 5 - 6 November 2014 and 2 March 2015.

•	The decision issued on 27 April 2015.

•	The NRA Application was granted in part with the first day of extended trade operative from Friday, 29 May 2015.  On that day the non-exempt stores opened and many small businesses in the centres which they anchor have been trading since that date.

•	The Application to re-open proceedings was made on 13 May 2015.

•	A short delay occurred in the listing of the matter as the Commission as constituted was on leave when the matter was filed.

•	The Application to re-open was made by one of the witnesses in the substantive hearing (Ms Simpson) who opposed the application.  

•	Ms Simpson is the General Manager, Western Downs Cooperative Trading Society which owns the Dalby FoodWorks store. 

Is this a case of a party "wise in hindsight" or does the Commission "perceive[s] the real prospect of serious factual error or misapprehension".

[27]	In my view, the essence of the Applicant's concerns are more akin to that of a disappointed participant in a matter. 

[28]	In terms of the relevant criteria to be considered, this almost invariably involves a balancing of all factors by the Commission.  This matter was no different.  

[29]	Section 26(a) requires the Commission to consider "the locality, or part thereof, in which the non-exempt shop or class of non-exempt shop is situated."  This is not a contentious matter and the consideration given by the Commission was "Because of its location, and relative size, Dalby is a hub for those towns situated around that area.  It is also a town through which a considerable amount of traffic passes because of its proximity to various highways".

[30]	The criteria "s 26(b) the needs of the tourist industry or other industry in such locality or part and s 26(c) the needs of an expanding tourist industry", when considering this matter the Commission stated:

"It is accepted that there is tourist traffic through Dalby because of its location.  There has been nothing to suggest that these tourists are not being appropriately catered for by the existing retail infrastructure.  It is also accepted that it is difficult to ascertain whether there is a 'need' for seven day trade in Dalby for these tourists.  Nevertheless, the Legislation refers to the 'needs' of tourists and this has not been established in the evidence."

[31]	There has been no reference by the Commission to Dalby being a "tourist town" per se.  Rather, it is a town through which tourists travel or stay en route to tourist destinations.

[32]	"Section 26(d) the needs of an expanding population".  It was acknowledged by the Commission that there had been population variances in Dalby because of the nature of the mining industry.  This evidence was presented by an organization which was opposed to the application.

[33]	While reference had been made of the 2011 Census statistical data concerning population growth or otherwise, the Commission chose to rely upon the evidence given by the Local Regional Council as an organization which would be able to provide relevant and current information upon the issue of population growth.

[34]	The evidence given by the Local Mayor of the Regional Council (an organization which opposed the application) was that there were often 'spikes' in population statistics and he did not "believe that we've had a higher population than we have now".  There was no statistical data provided to the contrary other than speculation, based on general views, given by some witnesses opposed to the application.  All evidence was considered.

[35]	In these circumstances, it is the case that the Commission, on balance, chose the evidence of the Local Mayor of the Regional Council in preference to anecdotal information provided by some residents of the township for the reasons so proffered.  While this may be a disappointment for others opposed to the application, it does not represent an error of a serious factual nature or a misapprehension of the facts. 

[36]	It is around the question of "s 26 (e) - the public interest, consumers' interest, and business interest (whether small, medium or large" - that the Applicant concentrated its primary concerns.

[37]	An initial issue for the Applicant related to the conduct and outcome of the Queensland Institute of Technology Survey (QUT) conducted on behalf of the NRA.  It was put that a similar survey had been conducted by QUT in a recent Mt Isa Trading Hours case with different emphasis placed upon that survey by the Commission than what was placed on the Dalby survey.

[38]	Surveys will differ in terms of how and when they are conducted in various areas where applications have been made for an extension of trading hours by non-exempt stores.  Each area under consideration is discretely different to the other.  An application for extended trade on a Sunday may be made in a township where Sunday trade already exists in part of that town.  Alternatively, the application may cover the whole area of a township where Sunday trade for non-exempt stores has never existed.

[39]	In the matter at hand, the Commission stated that "The more generalized and relatively large survey conducted by QUT on behalf of NRA has widely canvassed areas of support and opposition for the Application and represents a more balanced analysis of the responses made, which were favourable to the Application."

[40]	The range of questions posed in the QUT survey provided more of an overview of a broad range of attitudes of those completing the survey.  That being said, the yes/no responses of the surveys conducted in stores around the town over a period of approximately one week or more were equally valid in that they specifically stated what those consumers thought of the application.  Both were duly considered.

[41]	With regard to the interests of small to medium sized businesses having been considered by the Commission, the interests expressed by witnesses opposed to the application were duly considered by the Commission, so much so that the Commission amended the starting time for trade on a Sunday by non-exempt stores by one and a half hours in order to permit smaller traders the opportunity to trade without having to compete with non-exempt stores during that time.  The Commission, in its decision stated:

"In granting this Application I am conscious of the fact generally that for many small businesses within the town, Sunday, and often Sunday morning, is a significant trading period for them.  I am also conscious of the fact that there is considerable opposition within Dalby to the Application.  The commencing time for trade on Sunday will be 10.30 am.  This should permit small businesses in Dalby to at least have some opportunity to trade on Sunday morning unencumbered."

[42]	It was therefore, clearly in the contemplation of the Commission that small business trade may well be affected by the introduction of Sunday trade for non-exempt stores in Dalby.

[43]		Ms Simpson, in her evidence in the substantive case, stated that Sunday trade accounted for 50% of her sales on a Sunday.  Her claim, in this application, is that she has now lost approximately 50% of her trade on a Sunday.  Ms Simpson's evidence in the substantive hearing was duly considered.

[44]	Mr Waters's evidence was accepted to the extent that it showed that a significant number of Dalby residents did shop in Toowoomba in non-exempt stores on a Sunday.  There was no reason to disregard this evidence.

[45]	The interests of all groups required to be considered under s 26 of the Act were duly considered.  Reasons were provided as to why a preference was determined by the Commission.  That the preference of the Commission did not accord with the views of some of the witnesses in this case does give rise to a serious factual error or misapprehension.

[46]	The Regional Council's opposition to the application was duly noted.  The fact that the Council was opposed to the Application does not mean that a factual error or misapprehension has occurred in the decision making of the Commission.  It was a factor to be considered, together with other criteria pursuant to s 26 of the Act.

[47]	Given the breadth of the concerns being expressed by Ms Simpson, it is clear that Ms Simpson is disappointed with the decision, but a case has not been made out that the Commission perceives the real prospect of serious factual error or misapprehension.

[48]	This is particularly so in light of the fact that the final submissions made by the QRTSA/MGA in its opposition to the claim, did not identify any area which it believed the Commission should consider in any particular detail.  This was a significant problem with those submissions.  However, that did not obviate the need for the Commission to consider all of the evidence given in its decision.

[49]	The Commission stated in the substantive decision:

"MGA/QRTSA submitted that there was no community interest supporting the application to extend trading hours.  Primarily it sought to rely upon the evidence of its witnesses, Messrs. Caffery, Hedge and Ms Harding, Hill, Laverty and Wallin to support its proposition that there was significant opposition to this Application.  The MGA/QRTSA submissions do not take the Commission to the relevant parts of those witnesses' statements to support its opposition to the claim".

[50]	Consequently, because of the paucity of the final submissions made by MGA/QRTSA, the Commission drew upon all of the evidence presented in order to ascertain the full import of the support for or the opposition to the Application.

[51]	In considering the likely impact upon the order on employment, it was clearly put by the Commission that if the application was to be granted, then it would logically follow that there would be more working hours available for employees through whichever configuration the employer chose, provided that work on a Sunday would be of a voluntary nature.  In terms of the impact on employment in exempt stores if the application was to be granted, it has always been accepted that there may be an impact upon the employment of those people who work in exempt stores.  

[52]	In terms of Ms Simpson's claim as to evidence alleged to have been not available at the time of the substantive haring, this is detailed hereunder:

•	There was reference to a map setting out geographical information to the Western Downs Local Government area, which was available at the time of the hearing;

•	A copy of the Western Downs Regional Council 2014-2018 Tourism and Lifestyle Marketing Plan was in fact available at the time of the hearing.

•	The QUT survey [Exhibit 10] and the mention now of a QUT survey conducted in a trading hours case in Mt Isa and what weight should be attributable to the Dalby QUT survey vis a vis the QUT Mt Isa Survey was raised as a new issue in this matter.  The Commission notes that both surveys related to discretely different issues, in townships with discretely different dynamics and one is unable to be weighed against the other.

•	Ms Simpson sought to introduce evidence relating to two other retailers who claim to have been adversely affected by the decision.  Probable outcomes and effects were considered by the Commission in making its primary decision.

•	Ms Simpson sought to introduce media clippings after the event concerning the Dalby area.  The issues confronting the Dalby area were the subject of evidence in the primary hearing.  The general state of the Dalby economy was discussed fully and consciously considered by the Commission.

•	Ms Simpson also sought to introduce property data over the last 12 months in Dalby.  The last day of hearing was on 2 March 2015 and the data now sought to be introduced would have been known to those opposed to the application (for at least 8 of the 12 months).  The Commission has formed the view that the material does little more than discuss what has happened since the 'point in time' decision was made.  This is not a matter which can justify a reopening of proceedings.  Similar material sought to be now introduced related to the residential vacancy rate in Dalby.  This matter was raised during evidence in the substantive hearing and was considered in the Commission's determination to accept the Application, in part.

[53]	NRA referred to a particular Trading Hours case before the Commission where a re-opening of proceedings has occurred.  This related to the matter of Melville Luke and National Retail Association Limited (Matter B/2012/57 - 29 January 2013)

[54]	Mr Luke was the owner of an exempt store who had not been advised, (through no fault of his own) that an application had been made by a non-exempt store to trade on a Sunday in the township where he had his store.  It was the case that the Full Bench considered its decision with no knowledge of Mr Luke's store being within the boundary of the Application.  That particular matter was uniquely different to the facts of this matter.  NRA states 

"The real possibility that a retail grocery store of which the Full Bench was unaware may have been adversely affected by the order being sought in the initial proceedings, and the fact that no regard had been paid to that situation by reason of Mr Luke not attending at the proceedings (and such evidence not being given), was considered a sufficient ground to grant the reopening of the proceedings in order to ensure that the totality of the material upon which the applicant relied had been put to the Full Bench in order to assist it with its determination."

[55]	In this matter, Ms Simpson and the MGA fully participated in the proceedings.  All of the evidence it wished to put before the Commission occurred.  This is not a case of a misunderstanding on the Commission's part as to the existence of such evidence.

The current situation

[56]	Since May 2015, the non-exempt stores in Dalby have opened and adjusted working hours for employees who work the extended hours.  NRA states that an additional 20 small businesses that did not previously trade on a Sunday because of their location in a shopping with a non-exempt anchor now open for trade on a Sunday.

Conclusion

[57]	What has been sought by the Applicant in this matter is the opportunity to reargue the correctness and the weight that the Commission has attributed to the evidence which has been produced in the hearing.

[58]	It is significant to note that the Legislative scheme does not permit the applicant to appeal.  In any event, there is nothing in the Applicant's submissions which relate to any error of law or want of jurisdiction.

[59]	NRA submits:

"If this application was permitted to succeed on the grounds advanced, there could effectively be no reliance by any party on an end to any such proceedings, as it would always be possible for one party to identify some evidence that supports their own case, and which they assert should be been weighed differently."

[60]	The Commission endorses that statement.

[61]	This application is refused.  There is nothing in the application that raises issues of "serious factual error" or "misapprehension on the part of the Commission".

[62]	Application dismissed