WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2013 WAIRC 00052

DELIVERED : Wednesday, 19 December 2012

FILE NO. : CP 10 OF 2012, CP 11 OF 2012, CP 12 OF 2012, CP 13 OF 2012, CP 14 OF 2012, CP 15 OF 2012, CP 16 OF 2012, CP 17 OF 2012, CP 18 OF 2012, CP 19 OF 2012, CP 20 OF 2012, CP 21 OF 2012, CP 22 OF 2012, CP 23 OF 2012, CP 24 OF 2012, CP 25 OF 2012

PROSECUTOR

AND

Kentucky Fried Chicken Pty Ltd ACN 000 587 780

ACCUSED

Sentencing Remarks

Legislation : Children and Community Services Act 2004

  Sentencing Act 1995

Result : Conviction entered and global penalty imposed.

Prosecutor : Mr J Lee (of Counsel)

Accused : Mr T McDonald (of Counsel)

Sentencing Remarks

(These sentencing remarks were delivered extemporaneously on 19 December 2012 and have been edited from the transcript)

1         The Accused has pleaded guilty to and has been convicted of sixteen offences.  In each instance section 190(1) of the Children and Community Services Act 2004 (the Act) has been breached. 

2         Section 190 of the Act provides that:

“A person must not employ a child under 15 years in a business, trade or occupation carried on for profit.” 

3         However, there are exceptions to that prohibition.  The exceptions are found in section 191 of the Act which provides inter alia that:

“Children under the age of 15 years can work between the hours of 6 am and 10 pm with the written permission of a parent.”

4         In these matters it is alleged that children either worked without written parental permission, or worked beyond 10:00pm.  In some instances it is alleged that both occurred. 

5         The Children and Community Services Act 2004 is an Act which in part, is aimed at protecting children from exploitation in their employment.  The exploitation of children in their employment can arise in various circumstances.  Further, the Act promotes the wellbeing of children. 

6         Often children are desirous of working and will work for extended periods, thereby neglecting their social and educational needs.  Often children may be encouraged to work by their well-meaning parents. Nevertheless, the effects of a child working may negatively impact upon the child.  That is sometimes unrecognised. 

7         In some instances, employers will use children as a cheap source of labour in achieving their ends.  I say at this point that I do not consider that the Accused has in this instance done that. 

8         The Act is welfare legislation, which strives to protect young people who are unable to protect themselves.  It aims at ensuring that children maintain a balance between their work and  other activities which they need to experience as children.  It follows that any breach of the legislation must be viewed with the objectives of the Act in mind. 

9         Each offence carries a penalty of $24,000.  However, section 40(5) of the Sentencing Act 1995 has application with respect to corporations.  The maximum penalty for a corporation is therefore $120,000.  The Accused in this matter is a corporation and is subject to a $120,000 fine for each of the breaches.

10      Section 6 of the Sentencing Act 1995 sets out the principles of sentencing.  It provides that the sentence imposed must be commensurate with the seriousness of the offence.  The seriousness of the offence must be determined by taking into account the following factors:

1. the statutory penalty;
2. the circumstances of the commission of the offence, including the vulnerability of any victim;
3. any aggravating factors; and 
4. any mitigating factors.

11      Aggravating factors are those which increase the culpability of an Accused.  Mitigating factors are those which decrease the culpability of the accused or which would otherwise decrease the extent of any penalty that might be imposed.

12      The Accused in this matter trades as KFC.  It operates four outlets in Western Australia at Karratha, Forrestfield, Ellenbrook and Rockingham.  It has many more stores in the Eastern States. Its Western Australian operations are a minor part of its overall operations.  Most KFC outlets in Western Australia are operated by franchisees.

13      The offences in these matters have in the main occurred at the Accused’s Ellenbrook and Forrestfield stores.  There was also one incident at its Rockingham store.  The Karratha store was not involved in any of the offending behaviour. 

14      It is alleged that between 4 November 2011 and 26 May 2012 the Accused employed sixteen children aged under 15 years otherwise than in conformity with the Act. I acknowledge that most of the children involved were nearing their 15th birthday.   The sixteen children involved completed a total of 153 shifts after 10:00pm.  On forty four separate occasions a child finished work after midnight.  On one occasion a child finished work at 1:17am.  In twenty one instances the child concerned worked late preceding a school day. 

15      The offending took place over a 7 month period at three separate locations.  In offending the Accused breached its own policy in relation to the employment of children.  The offending was clearly serious.  It was systemic in nature because it seems that the Accused allowed the offending to be repeated. 

16      An aggravating factor in these matters is that the Accused had rostered some children to work beyond 10:00pm.  In most instances, the children worked well beyond 10:00pm. There is a concern arising from the fact that the Accused enabled that to occur in the knowledge that it contravened the law and its own policies.  The offending did not arise by inadvertence. 

17      The Accused well knew what the law was. Indeed its own policies reaffirmed the requirement for compliance.  Unfortunately the individual store managers concerned simply failed to comply with those requirements.  It seems that the Accused did not have operative functions in place to prevent that occurring.  That is an aggravating factor, in my view.

18      In mitigation, I accept that in the commission of these offences the Accused was not motivated by financial gain. The offences have resulted from inefficiency in management by individual managers.  However there was a failure by the Accused to overview its managers’ conduct at each particular store.  That has now been put right.  I take that into account as a mitigating factor.  I also take into account that the Accused has no relevant record.  That is of particular significance as is the fact that the Accused has pleaded guilty at its very first opportunity.

19      The Accused is clearly remorseful.  It’s gone into this matter in a very detailed way.  It has presented to this court a large amount of materials outlining what it has already done and what it proposes to ensure that the offending does not reoccur. 

20      I accept that the Accused has cooperated with prosecuting authorities.  I accept what I have been told by Counsel for the Accused concerning the Accused cooperation.  Indeed that is consistent with what is said in an affidavit lodged, which was sworn by the Accused’s Human Resources Development Manager.  The contents of the affidavit are unchallenged.  I accept that the Accused, upon being notified of the offending caused its officers to come to Perth to discuss the issues with the prosecuting authority. It did all that it could to resolve the matters as quickly as possible.  The Accused must be given credit for that.  As indicated it has now put in place measures to prevent the reoccurrence of the breaches. That reflects the way in which it views seriously its own its conduct and demonstrates its remorse in this matter. 

21      The materials provided in the affidavit before me indicate that the Accused is a good corporate citizen.  It has invested a large amount of money in the wellbeing of children.  I need not detail those matters that are within the affidavit save to say that it is clearly evident that the Accused exercises good corporate responsibility with respect to its affairs relating to children.

22      The mitigating factors to which I have referred are substantial and inevitably impact in a significant way the ultimate disposition. 

23      Section 54 of the Sentencing Act 1995 enables this court to impose a global penalty where two or more offences are founded on the same facts or form, or are part of a series of offences of the same or similar kind. I propose to impose a single fine for all the offences.  In doing so, I recognise that there are some material differences in seriousness between various counts.  

24      I accept that the counts in relation to the children F, L and R, are at the bottom end of the scale of seriousness. 

25      The most serious of the matters before me are those that relate to the children C, W, P, Fr and B-H.  Those offences are to be regarded as being at the higher end of offending in respect of this group of offences, but are at mid-range of seriousness in relation to offending as a whole.  There are some other offences which fall somewhere between the two putting them at the low to mid-range of offending.

26      In imposing the appropriate singular penalty, I take into account the need for a strong deterrent penalty.  In matters such as this it is the general deterrent aspect of the penalty that attracts the greatest significance.  It is important that not only the Accused but others get the message, that the welfare of young children is paramount.  Children under the age of 15 should not work late.  It is really quite a simple proposition.  Working late will inevitably impinge upon a child’s ability to perform at school and in other ways.  Working late produces a myriad of undesirable outcomes.  I need not mention them all.  They will be obvious.  The fact that a child or children, by working late, does not suffer any physical harm is of little significance.  It will be other factors pertaining to the child’s psychological and social circumstances that are important.  Having said that I note that in most instances the children involved in these matters were approaching 15 years.  Unlike some other similar matters dealt with by this Court the affected children were not of a particularly tender age.

27      Any fine imposed must, as I have said, be commensurate with the seriousness of the offending, taking into account the mitigating factors to which I have referred.  The imposition of a single fine of $30,000 will, in my view, be reflective of the Accused’s conduct which is commensurate with the seriousness of its offending, yet taking into account mitigating factors.

28      That penalty is consistent with other penalties imposed by this Court involving similar offending behaviour.  That penalty is of significance. It is not a small penalty but is unlikely to crush the Accused.  It reflects the seriousness of the Accused’s conduct.  It constitutes not only a personal deterrent penalty but, more importantly, acts a general deterrent penalty which will send a message to others that they cannot employ children at a late hour.

29      A global penalty of $30,000 is imposed.

G. Cicchini

Industrial Magistrate