BREACH OF SECTION 190(1) OF THE CHILDREN AND COMMUNITY SERVICES ACT 2004

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

PARTIES CHRISTOPHER BELL, DEPARTMENT OF CONSUMER AND EMPLOYMENT PROTECTION

PROSECUTION

-v-

Raydale Holdings Pty Ltd trading as Tambrey Tavern and Function Centre ACN: 106 193 837

ACCUSED

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD Thursday, 30 April 2009, Wednesday, 10 June 2009, Wednesday, 1 July 2009

DELIVERED WEDNESDAY, 1 JULY 2009

CLAIM NO. CP 1 OF 2009

CITATION NO. 2009 WAIRC 00463

Catchwords Employment of children under the age of 15 years in a business, trade or occupation carried on for profit; breach of section 190(1) of the Children and Community Services Act 2004

Legislation Children and Community Services Act 2004; s.190(1), s.191(4)

 Criminal Procedure Act 2004; s.78, s.153

 Sentencing Act 1995; s.40(2)

Cases Cited Department of Consumer and Employment Protection -v- Gold Mountain Enterprise Pty Ltd

 (2008) 88 WAIG 2023

Result Plea of guilty by accused - penalties imposed

Representation 

Prosecution Ms K Scoble (of Counsel)

Accused Ms M Saraceni instructed by Deacons

REASONS FOR DECISION

(Given extemporaneously at the conclusion of the hearing, extracted from the transcript of proceedings and edited by His Honour)

1         The accused has pleaded guilty to two charges.  By its plea it agrees that it has contravened section 190(1) of the Children and Community Services Act 2004.  It contravened that provision by employing two children under the age of 15 years in a business carried on for profit.  The maximum penalty faced by the accused for each of the offences is a fine of $120,000.00 by operation of section 40(2) of the Sentencing Act 1995.  The accused is, because of its corporate status, liable to five times the maximum penalty that is otherwise applicable to an individual.

2         The facts are that two children were employed at a tavern operated by the accused in Karratha.   Plans of the premises shown to me indicate that the tavern is part of a very large complex comprising many aspects including sporting facilities.  Essentially the place at which these offences occurred was a community centre of which the tavern is a part. 

3         At the material times, the two children were in each instance between 14 and 15 years of age.  They were approaching their respective 15th birthday.  The parties agreed that the child DG worked on five separate occasions. It is clear from what I have been told that his designated working hours were between 6.00 pm to about 10.00 pm.  On one occasion he worked to 9.50 pm, on another occasion he worked to 9.25 pm and on another occasion until 10.15 pm, but generally speaking his hours were from 6.00 pm to 10.00 pm. 

4         The other child CF worked on many more occasions than DG.  His commencement times were usually between 5.00 pm and 6.00 pm.  On one occasion he commenced at midday.  He usually finished working sometime after 11.00 pm.  There are instances when he finished much earlier in the evening.  I think it would be fair to say however that he usually worked beyond        11.00 pm.  At various times he respectively worked to 11.30 pm, 11.40 pm, 11.45 pm and 11.50 pm.  The latest time that he finished was 12.20 am.

5         Each child worked because they wanted to. They did so with the consent of their parents (albeit not in writing in one instance). It seems from the materials handed up to me that the accused employed the children at the suggestion of their parent/s.  The children were happy to be employed by the respondent because it provided them with money and social interaction.  

6         The problem for the accused however is that the employment of the children in such circumstances was strictly prohibited. The accused could never have employed children within its tavern.  Counsel for the accused submitted that the work done by them at the tavern was the same as might be done in a restaurant.  Although it is the case that they handled food, dealt with plates, glasses and cutlery and did all of the things that one would also do in a restaurant, the fact remains that they did those things in a tavern environment, albeit that the tavern was orientated to the provision of services to families, such being a requirement of the tavern licence.

7         The problem is that a tavern is a tavern.  People not only go to such a place to eat food but also to drink alcohol without food.   There are the attendant problems that flow from people drinking alcohol at places such as taverns.  Unfortunately it is a fact of life that people become inebriated at such places.   Indeed unruly behaviour became so problematic for the accused that its licence was varied to ensure the safety and welfare of people at the tavern. The fact is that taverns carry attendant problems for people who work within them.  They are inevitably exposed to risk when working within such an environment.

8         I am not saying in this instance that the children were in each case exposed to a particular danger, but it is the potentiality of risk which is a concern.  In this matter I am satisfied that the children worked in the way described, serving food, cleaning up plates, cutlery and glasses and so forth. They were not involved in the service of liquor.  However, they would have inevitably been mingling with people who had been drinking alcohol.  People drinking at taverns don't have to consume food.  Some people just go there to drink, and if one of those persons becomes inebriated then people working within that particular environment are exposed to risk. As a result the children were potentially at risk.   A restaurant environment is somewhat different.  What is clear here is that this place at which the children worked was not a restaurant. It was never a restaurant; it was a tavern. 

9         In my view, the place within which the children worked is of critical importance.  It is a very important factor to be considered.  The legislation has been enacted to protect children.  Children need to be protected not only from being exploited in the sense of being underpaid and so forth, but also need to be protected so that they are not exposed to the potentiality of injury in the workplace. They also need to be protected insofar that a balance must be struck between their schooling and working obligations.  In other words, one of the objectives of the legislation is to ensure that children have a balanced life and that their work does not overbear their schooling and social activities.  It is important therefore, to have regard to the times that the children have worked in this instance.  The fact is that in certain circumstances where the law permits it, children under the age of 15 can work, but they cannot work beyond 10.00 pm.  That is for good reason.  They need to have their rest and recreation so that their work does not impact upon their scholastic and social circumstances.  Children working beyond 10.00 pm at night is an aggravating factor to be considered.

10      The accused’s director was well meaning in his employment of the children. The children were only employed at the behest of their parents.  Clearly the accused is remorseful about its conduct.  It is important to note that the employment of the children was not of longstanding duration.   I accept that the offences occurred by way of ignorance of the law rather than by any wilful defiance of the law.  I think that is an important consideration.  The employer is no longer involved in the industry and in fact no longer trades.  It has pleaded guilty to the charge at an early opportunity.   When the accused initially appeared with respect to this matter it did so by its representative as it is permitted by section 153 of the Criminal Procedure Act 2004.  That person was not a legal practitioner.  A plea of not guilty was entered by its representative. Once the accused obtained legal advice concerning the matter there was a change of plea.  The court can therefore conclude that the accused has pleaded guilty at an early opportunity. All of those are factors are to be taken into account in mitigation. 

11      The court needs to set a penalty which takes into account all of the aggravating factors that I have referred to and the mitigating circumstances of the accused.  In this matter, compared to other matters that have come before this Court as presently constituted, there is some distinction to be drawn.  In this instance there are only two children involved.  In many of the other matters that I have dealt with a greater number of children were involved.  That is a factor to be considered.  The circumstance by which the children became employed is another relevant factor.  This was not a commercial decision by the accused to gain the services of children in order to have them work as a form of cheap labour.  Rather this was a situation where the accused has acquiesced to the parents' request that the children be employed.  Furthermore, the age of the children involved is of significance.  In many other instances where I have dealt with matters of this type the children involved were much younger.  From memory some were as young as 11 or 12 years of age.  That is not the case here.  The children were approaching 15 in each instance.  

12      In this matter the court needs to impose a penalty which will act as a deterrent not only to the accused but also others.  There is a need not only for a personal deterrent penalty but also a general one.  Those within the industry should know from this, that the employment of children in a tavern is prohibited and that any contravention of the law in that regard will have serious consequences.

13      Every case will turn on its own facts. Having regard to the particular circumstances in this case, although there is a concern arising out of the fact that the children were employed in a tavern which potentially put them at risk, I must have regard to the mitigating circumstances.  The following penalties are appropriate penalties having regard to the particular circumstances of this case.  With respect to the first count relating to DG, the appropriate penalty to be imposed is less than the other count.  That must be so having regard to the number of shifts worked which were significantly less. Further, the times worked did not involve late finishes.  A fine of $2,000.00 is imposed with respect to that count.  In relation to the second count involving CF, where a greater number of shifts were worked and the times worked were to a much later finish a $4,000.00 fine is imposed.

G CICCHINI

Industrial Magistrate