ACT
See section 140. The tenant may trade outside core trading hours with the landlord's agreement provided the tenant meets the costs (calculated proportionately where there are other tenants operating outside the core hours), including advertising and promotion costs associated with opening and operating the shopping centre for the additional hours.
Core trading hours means the time when retail premises in the shopping centre are generally required to be open (see dictionary).
NSW
See section 61. The landlord may not change core trading hours of a shopping centre except with the approval in writing of a majority of the retail shops in the centre.
NT
See section 75 - similar to NSW.
A lease of a retail shop is taken to include a provision to the effect that the landlord is not entitled to change the core trading hours of the retail shopping centre of which the shop forms part except with the approval in writing of the tenants of a majority of the retail shops in the shopping centre (whether or not those retail shops are retail shops to which this Act applies).
The initial fixing of trading hours in a new retail shopping centre is not a change to core trading hours and is not affected by the section.
The landlord is not permitted to ignore the requirements of another agreement, arrangement or understanding that prevents or restricts a change to core trading hours by the landlord in a retail shopping centre.
The section does not prevent a lease providing for the action that may be taken by a landlord in the event of a tenant not trading in accordance with core trading hours, including provisions:
- enabling the landlord, as a condition of granting consent to a tenant trading outside core trading hours, to require the tenant to pay, or pay a contribution towards, the costs of opening the retail shopping centre during those extended trading hours; or
- requiring a tenant who trades outside core trading hours to make specified payments or additional payments in respect of advertising and promotional costs for the shopping centre.
Core trading hours means the time the tenant is required to be open for business, whether imposed by lease or under some other arrangement, agreement or understanding between the landlord or tenant.
QLD
See sections 51-53A. Core trading hours means the hours not outside the allowable trading hours under the Trading (Allowable Hours) Act 1990 that are passed by a resolution supported by at least 75% of retail shops (who voted) in a shopping centre (on the basis of 1 vote for each eligible shop and at least 50% of eligible shops voted).
Until a resolution is passed:
- for leases existing before the commencement of the Trading (Allowable Hours) Amendment Act 1994 (Qld) (ie. 16 May 1994) the trading hours immediately prior to that Act; or
- for other leases - the trading hours required by the landlord.
A provision which requires the tenant to trade outside the hours permitted under the core trading hours for the RCS is void.
See section 53A. There is a limit on the landlord's recovery of outgoings incurred outside core trading hours.
SA
See section 61. Trading hours can only be regulated if:
- the shop is within an "enclosed shopping complex" (as defined in the Act);
- the lease does not reduce permitted hours to less than 50 hours per week;
- core trading hours do not exceed 54 hours per week and do not include any time on a Sunday, and have been approved by 75% of voters.
The provisions in this section should be read in conjunction with the Shop Trading Hours Act 1977 (SA).
TAS
See section 38. Trading hours for a shopping centre are divided into three categories: core trading hours, centre trading hours, and special trading hours.
Core trading hours may be negotiated between landlords and tenants, and once negotiated, the tenants must open during the agreed minimum hours of trading.
Centre trading hours are the times that the centre facilities must be made available and during which any shop may trade.
Special trading hours are the times outside centre trading hours and are negotiable between the landlord and the tenant and they are not compulsory so that the tenants may open if they wish.
To change trading hours, a resolution must be passed by 2/3 of the total number of tenants voting at the meeting of tenants occupying the retail premises within the shopping complex.
VIC
See section 66. Similar to NSW.
WA
See sections 12 and 12C which are markedly different from all other states. Under the Act the landlord can set the trading hours for the centre (subject to any contractual arrangements the landlord may have made altering those rights).
However, under section 12C, a provision in a retail shop lease requiring a tenant to open the shop at specified times is void. The tenant of a retail shop is free to stay closed whenever the tenant wishes to do so (but see section 12 above concerning the tenant's obligation to pay its share of outgoings during "standard trading hours" if it chooses not to trade during those hours).
If the landlord refuses to grant the tenant a lease renewal and the tenant believes the refusal is because the tenant did not open the shop at specific times, the tenant can apply to WA SAT for compensation for pecuniary loss suffered by the tenant as a result of the non-renewal.
Under section 12(1)(c) the landlord cannot recover costs from a tenant under a retail shop in a group of premises where that tenant was not open for trade outside the standard trading hours.