|
|
Submission by Hospitality Association of New Zealand To the Department of Labour On the Easter Trading and Holidays Legislation: Interface Between the Shop Trading Hours Act Repeal Act 1990, Sale of Liquor Act 1989 and Holidays Act 2003 25 January 2008 Hospitality Association of New Zealand Sara Hudson EASTER TRADING AND HOLIDAYS LEGISLATION DISCUSSION DOCUMENT The Hospitality Association of New Zealand welcomes the opportunity to comment on the discussion paper on the revision of the definition of serious harm (“the Discussion Document”). The Association is a member of Business New Zealand’s Affiliated Industries Group and through membership servicing of its own 2,350 members throughout New Zealand the Association is able to gauge the views and experiences of a wide variety of New Zealand hospitality businesses including restaurants, caf￩ bars, hotels, taverns, off-licenses, casinos and a wide array of short and long term accommodation providers. Membership of the Association is voluntary, is primarily funded by member subscriptions and comprises predominantly small businesses. There is also a perception that the Association, through its advocacy, speaks for and represents the interests of the hospitality industry as a whole. Service delivery to members is provided through a team of 8 Regional Managers based at local branches around New Zealand supported by a service team in Wellington. Service is delivered through personal visits and telephone contact to members and includes advice to hospitality businesses on a wide variety of industry and compliance issues including liquor licensing and employment. The Association has considered the Discussion Document and provides comments gained from its membership as well as commentary from the Association’s position as an industry body for the hospitality sector. If the Department would like further information on any aspects of the Association’s submission, or if we can assist further, please do not hesitate to contact us. Yours sincerely Bruce H Robertson Introduction and Overall Comments The Association accepts the continued significance of Easter for some but nevertheless considers that the point has been reached in New Zealand when all limitations on shop trading hours and the retailing of goods and services should be removed and believes that it is time to recognise that retailers and customers are capable of making their own choices with respect to retailing, including liquor retailing through both on and off licences. In particular, the Association believes that it should be the choice of individual retailers whether or not they open on any particular day, whatever that day may be and the times that they open and trade. Further the Association considers that any differences in perspective toward Easter Sunday that exist between businesses, workers and consumers are able to coexist. The Association also considers that it would be better to consider and resolve once and for all the question of what, if any, restrictions should apply in respect to the ability to trade on certain days in recognition that many of the inconsistencies identified by the Discussion Document and in the Association’s submission have a wider application than just Easter Sunday. 1. Do you consider that New Zealand law should in general treat Easter as a holiday weekend? What are your reasons? The Association recognises and accepts that for a proportion of the population Easter has significance and on that basis considers for those that they be able to make choices with regards to their activities at Easter. This may include not working, not shopping or visiting licensed premises. Irrespective, the Association considers that retailers and consumers are capable and ought to be able to make their own choices with respect to working and shopping, including liquor retailing at Easter. 2. Do you consider that the inconsistencies described above between the Shop Trading Hours Act Repeal Act 1990 and the Sale of Liquor Act 1989 and the Holidays Act 2003 need to be addressed? For example, if special rules apply over the Easter weekend should they be consistent in terms of shop trading hours, sale of liquor and statutory holidays? Please explain why or why not. The Association agrees that there are inconsistencies both between the legislation as well as inconsistencies within the Sale of Liquor Act 1989 and considers that all of these inconsistencies need to be addressed and could be addressed by this review and that there is no basis for any inconsistencies to remain. Currently, the Sale of Liquor Act prohibits hotels, taverns and off-licences from liquor retailing on, not just Easter Sunday, but also Christmas Day, Good Friday and prior to 1pm on ANZAC Day (often referred to as the Special Days), except to people in hotels and taverns for the purpose of dining or lodging or where hotels and taverns have applied for and obtained a special licence. In other words on-licensed premises with a hotel or tavern designation already have a right to trade on Easter Sunday just that they can only do so if patrons are dining or staying on premises as lodgers. It is clear however that Parliament considers liquor consumption on licensed premises acceptable on the special days as on licences with any other designation, other than hotels and taverns, may trade on the Special Days without restriction. Currently on-licences with a restaurant and entertainment designation, club licences, and conveyances are all able to sell and supply liquor for consumption on premises on not just Easter Sunday, but also Christmas Day, Good Friday and prior to 1pm on ANZAC Day. The Association considers this inconsistency within the Sale of Liquor Act unnecessary, confusing and unduly compliance cost excessive on hotel and tavern on-licences. The Association’s suggestion in terms of remedying this inconsistency is to align all liquor retailing under the Sale of Liquor Act and therefore remove the current restrictions on liquor retailing from hotels, taverns and off-licences in respect of Easter Sunday. By making this change the only difference is not the ability of hotels, taverns and off-licences to trade on Easter Sunday but removing the current requirement for patrons in hotels and taverns to either dine or stay on premises as lodgers and provide consistency of trading opportunities for all those with an on-licence. Making this change would remove the complex and unduly compliance orientated law in respect of hotels and taverns and enable off-licences to be treated in the same way as other retailers under the Shop Trading Hours Act. This change would also recognise and support the safe consumption of alcohol on those days in recognition of the view that on-licenses are the safest place to consume alcohol because of the supervised environment with strong controls on the supply of liquor along with the standard conditions of holding an on-licence to provide a range of non-alcoholic beverages and food for consumption on the premises. Indeed much of the problems associated with alcohol consumption may be derived from consumption in unsupervised environments. Specifically, anecdotal evidence suggests that restrictions on on-premise trading have the potential to increase off-premise consumption where issues associated with the consumption of alcohol are more difficult to address. Therefore providing a safe place for alcohol consumption on those special days may reduce the potential for problems associated with uncontrolled alcohol consumption because people are not prevented from drinking in the controlled environment that on-licences provide. Additionally, the Sale of Liquor Act provides that District Licensing Agencies and the Licensing Authority may impose further conditions in respect of promoting the responsible consumption of liquor. 3. Do you agree with the impact of the inconsistencies described above? Can you think of any other impacts from these inconsistencies? Is there a difference when considered from the perspective of the business owner, the employee and the customer? The Association considers that the inconsistencies described prevent retailers as business owners from meeting the legitimate needs and desires of the community, including both customers and employees. Naturally there may be differences between the perspective of business owners, employees and customers. However, the Association does not necessarily believe that these differences, where they occur, are not able to be reconciled. For example, some employees may prefer the ability to take time off to observe other days of significance to them. Indeed, this is stated as a purpose of the Holidays Act 2003 and the Holidays Act provides for the ability of employees to agree with their employer to observe public holidays on other days. Such a facility may therefore be used as a means to redress any differences over the impact of Easter trading and indeed it may be that Parliament anticipated as such by including the ability to transfer holidays by agreement under the Holidays Act. 4. Which one of the following statements best describes your view and why? - Shop trading and sale of liquor rules on Easter Sunday should remain as they currently are (status quo). For the reasons already the Association supports the ability of all retailers, including liquor retailers, to have the same unrestricted right to make their own decisions in respect of trading on Easter Sunday. The Association would therefore support statement c and then statement a, but would not support statement b. The Association would not support statement b because the Association considers that rather than address and potentially remedy the inconsistencies identified in the Discussion Document this option has the potential to add to and create new inconsistencies. Specifically, new inconsistencies include the definition of and criteria of any exemptions. Further, is the potential for such a provision to be counter to the objects of the exercise where for example in the application of any exemptions. As support for this view regard may be had for the scope for special licences to be issued under the Sale of Liquor Act to enable on-licensees to trade when premises are otherwise required to be closed for the sale and supply of liquor. There is already much inconsistency regarding the granting of special licences by licensing agencies under this provision. Some agencies take a very liberal approach reflecting New Zealand’s contemporary market for liquor consumption while others adopt a very prohibitive stance and routinely turn down special licence applications on questionable grounds. Further support for this position may be gauged from the recently released Performance Audit Report on Liquor Licensing by Territorial Authorities by the Office of the Auditor-General. The end result of this is that rather than enabling on-licences to trade with special licences on occasions like Easter Sunday, they can’t because they are not able to get special licences because of the application procedures involved, including judicial interpretation of the criteria for special licences despite Parliament intending, in the 1999 amendments to the Sale of Liquor Act, to ensure that licences were able to get special licences as required. There are also of course the administrative procedures alluded to in the Discussion Document that in all likelihood would create additional compliance costs for those businesses. 5. If an exemption-making power is reinstated, how would you prefer to see it implemented (e.g. should local authorities or the Minister of Labour make the decision)? Please explain your view. For the reasons stated above the Association is opposed to reinstating the exemption making power as we do not consider this option to be consistent with reducing the inconsistencies associated with Easter trading under the subject legislation. Irrespective, and without prejudice to the Association’s stated position, were this option to be put forward then the Association considers that owing to the identified inconsistencies in special licensing that similar inconsistencies could be expected were the exemption-making power to be conferred on local authorities despite local authorities being the most appropriate administrative body to make such decisions in respect of their areas of jurisdiction and probably more so than the Minister of Labour. As stated, the Association considers that individual retailers be permitted to make their own trading decisions in respect of Easter Sunday. 6. If an exemption-making power is reinstated, what criteria do you think should be applied to the granting of exemptions (e.g. is the area a significant tourist or holiday destination)? In addition to the comments above were this to be put forward the Association acknowledges the issues associated with tourist and holiday destinations but makes the further comment that while some areas may clearly be labelled tourist or holiday destinations there may be other areas that may not, in an ordinary sense, be considered tourist or holiday destinations yet still receive significant numbers of tourists. Further, the Association would question the focus and potential deferential consideration toward tourists and holiday makers. Finally, were the exemption-making powers to be reinstated then as suggested criteria the Association would propose a similar scope as that for special licensing under the Sale of Liquor Act with further and specific drafting to ensure that the issues with special licenses do not similarly impede the ability of those businesses to trade. 7. If the exemption-making power is reinstated, should shop trading and sale of liquor restrictions/exemptions be considered at the same time? Please explain why or why not. As stated, if the exemption-making powers were to be reinstated it would seem consistent with the scope and object of the review to address all inconsistencies at the same time. 8. What information do you have on the potential costs/benefits of any of these options? Please provide any supporting information. The Association would have only anecdotal information from members that recall trading under these provisions. Such comments could be expected to support the answers made to questions above. 9. Do you consider that Easter Sunday should or should not be treated as a public holiday? Please explain why or why not. The Association does not consider that making Easter Sunday a public holiday would achieve the balance between the interests of business owners, employees and consumers and reduce the associated inconsistencies. This is because by making Easter Sunday a public holiday would likely compel some, particularly smaller operators, to close and this would seem contrary to providing an environment where business owners, employees and consumers are able to make their own choices about trading and working. 10. If you consider Easter should be treated as a public holiday, which one of the following statements best describes your view and why? - Increase the number of public holidays to 12 by making Easter Sunday the 12th public holiday As stated, the Association does not support Easter Sunday becoming a public holiday. However, were Easter Sunday to become a public holiday then the Association prefers statement b. 11. What information do you have on the potential costs/benefits of any of these options? Please provide any supporting information. The Association surveys its members annually on remuneration levels and included in this survey are questions regarding trading on public holidays. The last survey was conducted in March 2007. From 510 responses comprising some 10,000 employees results show: • 36% closed on public holidays. For further explanation or comment on this data please do not hesitate to contact us. 12. If there are changes to shop trading and sale of liquor restrictions do you consider that there should be additional protections for employees? Please explain why or why not. The Association considers that parties to an employment relationship should be able to negotiate and reach outcomes that reflect their mutual interests. Any such negotiations of course would still have the protections contained within the Employment Relations Act to negotiate in good faith as with any other term of employment. In addition, the Holidays Act provides that employees cannot be compelled to work on public holidays should Easter Sunday become a public holiday. As stated, the Association does not support Easter Sunday becoming a public holiday as the Association considers that this would not satisfactorily address many of the issues identified. If however additional protections for employees were necessary as part of the review then the Association could accept a right of employees to refuse work as is presently provided for under the Holidays Act in respect of public holidays. 13. Do you consider that the above proposals are adequate and appropriate? Please explain why or why not. As stated in the answer to question 4, the Association considers that all retailers ought to be able to make their own decisions in respect of trading decisions on Easter Sunday without any further changes necessary to the Holidays Act for the reasons stated in our answer to question 12 above.
14. If there are changes to shop trading and sale of liquor restrictions do you consider that employee protections should be targeted to only apply to employees in businesses affected by these changes? Please explain why or why not. The Association does not consider that this measure would address the identified inconsistencies and would only create further inconsistencies in application. 15. If there are changes to shop trading and sale of liquor restrictions do you consider that there should be additional protections for leaseholders? Please explain why or why not. The Association supports the ability of individual businesses to have optimal freedom to make their own trading decisions in response to expectations and customer demands. Related to this issue is the provision in many venue agreements with the TAB sports betting agency that often provide that venues must be open on race days that reduce the freedom of individual businesses to make trading decisions based on responses to customer demand. The Association further considers that being required to open and trade on Easter Sunday pursuant to a contract could have a counter productive effect should the costs of trading outweigh any associated returns. Indeed, anecdotal evidence from hotels and taverns supports this concern because of the trading restrictions currently imposed on hotels and taverns in respect of Easter Sunday pursuant to the Sale of Liquor Act. For these reasons the Association is not opposed to some protections for leaseholders against being required to open and trade on Easter Sunday pursuant to, not just a leasing arrangement, but any other contractual arrangement. 16. Do you consider that the above proposals are adequate and appropriate? Please explain why or why not. Protections for leaseholders may be appropriate in some cases, as well as a more general protection against a requirement to open and trade pursuant to any other contract. As stated, the Association considers that any additional protections for employees in respect of Easter Sunday could be counter effective in addressing the inconsistencies identified in respect of Easter Sunday trading and are unnecessary. 17. If there are changes to shop trading and sale of liquor restrictions do you consider that leaseholder protections should be targeted to only apply to businesses affected by these changes? Please explain why or why not. Without further detail about the application it’s difficult to comment. Irrespective, in principle, for ease and consistency of application and compliance, the Association considers that that all businesses should be treated consistently in respect of Easter Sunday trading. 18. Do you consider that penalties for breaching shop trading restrictions need to be increased? If so, which option or options do you support for increasing penalties? Please explain why you do or do not support this option or options. The Association’s position as stated is that retailers and consumers are capable of making their own choices with respect to retailing, including liquor retailing, and the Association considers that it should be the choice of individual retailers whether or not they open on any particular day, whatever that day may be and the times that they open and trade and that all restrictions on Easter Sunday be removed. Were this to be achieved there would be no need for penalties as presently provided under the Shop Trading Hours Act. Irrespective of any changes in Easter trading rights were the need for penalties to remain, the Association considers a consistency argument is appropriate. Specifically, at present under the Sale of Liquor Act licensees face a maximum fine of $20,000 or a seven day licence suspension. This is much tougher than a maximum fine of $1000 as provided for under the Shop Trading Hours Repeal Act when the policy and principles, namely commercial trading on Easter Sunday, are essentially the same under both the Sale of Liquor Act and Shop Trading Hours Repeal Act. 19. Do you consider that Labour Inspectors' powers of enforcement need to be increased? If so, is this option adequate and appropriate? Please explain why you do or do not think this is the case. The Association’s position as stated is that retailers and consumers are capable of making their own choices with respect to retailing, including liquor retailing and the Association believes that it should be the choice of individual retailers whether or not they open on any particular day, whatever that day may be and the times that they open and trade and that all restrictions on Easter Sunday trading be removed. Were this to be achieved there would be no need for inspection powers under the Shop Trading Hours Act. Irrespective, the Association raises the issue of administrative cost of either additional responsibilities on labour inspectors and/or the cost of additional labour inspectors. Related to this is whether added duties on labour inspectors impede the ability of inspectors to discharge their obligations under employment legislation. 20. Do you have any other comments? |
|
