PROSECUTION JURISDICTION OF THEWESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

PARTIES DEPARTMENT OF CONSUMER AND EMPLOYMENT PROTECTION

PROSECUTOR

-v-

Gold Mountain Enterprise Pty Ltd  ACN:  105 791 839

ACCUSED

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD tHURSDAY, 7 AUGUST 2008

DELIVERED Thursday, 18 September 2008

FILE NO. CP 3 OF 2008

CITATION NO. 2008 WAIRC 01420

CatchWords Employment of children under fifteen years of age in a business, trade or occupation carried on for profit; Whether the accused by employing children in a video store falls within the exception in section 191(4) of the Children and Community Services Act 2004; Whether a video store is a shop or other retail outlet for the purposes of section 191(4).

Legislation  Children and Community Services Act 2004; s190, s191(4).

Criminal Procedure Act 2004; s78.

Cases Referred to in Decision:

Plummer and Adams v Needham (1954) 56 WALR 1.

Sharp and Another v O’Driscoll (unreported decision of the Supreme Court of Western Australia Library No 970111).

M Collins and Son Pty Ltd v Bankstown Municipal Council (1958)

3 LGRA 216

Yager v R (1977) 13 ALR 247

Representation 

Prosecutor Mr D Matthews instructed by the State Solicitor for Western Australia prosecuted.

Accused Mr M Levitan represented the accused

Reasons for Decision

The Law

1          Pursuant to s190(1) of the Children and Community Services Act 2004 (the Act) it is an offence to employ children under the age of fifteen years in a business, trade or occupation carried on for profit.  However there are exceptions set out in s191 of the Act.  Section 191(4) of the Act provides that the prohibition in s190(1) does not apply in relation to a child who has reached the age of thirteen years if he or she is employed to carry out:

(a) delivery work;

 (b) work in a shop, other retail outlet or restaurant; or

(c) any other work of a kind prescribed for the purposes of the subsection;

provided that the child works only between the hours of 6.00 am and 10.00 pm and does so with the written permission of a parent.

The Facts

2          There is no dispute about the fact that between 1 August 2007 and 6 November 2007 the accused employed four children under the age of fifteen years in its business, Video Ezy Dianella, carried on for profit.  The children were in each instance over the age of thirteen years and, on the material dates worked between 6.00 am and 10.00 pm with the written consent of their parents.

The Allegations

3          It is alleged in these matters that the accused contravened s190(1) of the Act because the employment of those children did not fall within the exceptions found in s191.  The accused admits employing the children but denies having committed any offence.  It says that the children were, in each instance, employed to work in a “shop” or “other retail outlet” which falls within the exceptions provided in s191(4) of the Act.

Issue

4          The pivotal issue to be determined is whether the accused, by employing children to work in its video store did so outside the exceptions provided by the Act.

5          By virtue of s78 of the Criminal Procedure Act 2004 the onus is on the accused to establish on the balance of probabilities that its employment of children at the video store at the material time fell within the exception.  The accused seeks to prove that the place in which the children were employed was a “shop” or “other retail outlet”.

Prosecutor’s Submissions

6          “Shop” means a place where goods are sold retail.  The necessary element for a place to be a shop or other retail outlet is that goods and merchandise are sold retail out of or from that place.  The term “other retail outlet” is a more general term than shop but still remains a place which sells goods retail.

7          Although the accused’s video store sells some items, the nature of the business is one which provides services, that is, the hiring of DVD’s and games.  The sale of items is incidental to that core business, which defines it.

8          Given the nature of the legislation the exception should be construed narrowly.  Unless it is clear that Parliament was intending to exempt businesses that provide services, the definition of “shop” or “other retail outlet” should not be interpreted to include businesses such as that of the accused.

Evidence

9          James Ross Scholz, a director of the accused, testified that the accused trades as Video Ezy Dianella situated within the Centro Dianella Shopping Centre at 366 Grand Promenade, Dianella.

10      Mr Scholz explained that Video Ezy is a “rental retail franchise”.  It rents DVD’s, Blue Rays and games.  It also sells those items, as well as confectionary, soft drinks, mobile telephones and phone cards.  For the financial year ending 30 June 2008 forty-six per cent of its business was rental and fifty-four per cent retail.  In the previous financial year it was fifty per cent each way.

11      When cross-examined Mr Scholz said that it is a general trend of the industry that it is moving heavily into retail and in that regard he said “The stores that are not moving into retail and the smaller DVD stores are going broke . . .” (transcript page 15).

Is the Accused’s Video Store a “Shop” or “Other Retail Outlet” Within the Meaning of s191(4)(b) of the Act

12      The accused submits that given that the Act is silent as to what is meant by the terms “shop” or “other retail outlet” that recourse should be had to other legislation which deals with the meaning of such terms.  In particular it is submitted that the Court should have regard to the meaning of such terms contained in the Commercial Tenancy (Retail Shops) Agreements Act 1983 and the Retail Trading Hours Act 1987 and the Regulations made there under.

13      The prosecutor cautions against such an approach.

14      In M Collins and Son Pty Ltd v Bankstown Municipal Council (1958) 3 LGRA 216 at 220 Sugerman J said:

Definitions to be found in one statute are not, generally speaking, of value in the interpretation of another statute, since the attachment of a meaning to a word in the interpretation clause of a statute very commonly involves some artificial extension or limitation of the natural meaning of the word for the purposes of that statute.

15      Mason J in Yager v R (1977) 13 ALR 247 at 256-257 expressed a similar view.

16      The definition of a term in one Act may assist in determining the meaning of that term in another Act only where the subject matter of both Acts is very closely related.  That is not the case here.

17      The accused submits that what was said in Sharp and Another v O’Driscoll (unreported decision of the Supreme Court of Western Australia Library No 970111) assists this Court in concluding that the video store it operates comes within the meaning of “shop or other retail outlet” in s191(4) of the Act. I respectfully disagree.  That case was concerned with the recovery of a premium paid under the lease for the Colliefields Hotel at Collie.  The case turned on whether the hotel was a retail shop under the Commercial Tenancy (Retail Shops) Agreements Act 1983.  The prosecutor on the other hand submits that the decision does not assist the accused but rather supports the prosecutor’s contention.  The prosecutor points out that at page 8 of that decision Malcolm CJ said:

. . . a business wholly or predominantly comprising the supply of services by retail is not a retail shop within the meaning of the Act.

18      What was said in Sharp v O’Driscoll was confined to its facts and the relevant legislation and is of little assistance or guidance in this matter.

19      The meaning of “shop” or “other retail outlet” should, for the purpose of this matter be construed having regard to the objects of the Act.  Section 6(e) of the Act makes it clear that an object of the Act is to protect children from exploitation in employment.  The Act, subject to certain safeguards, enables children to work in shops and other retail outlets.

20      In Plummer and Adams v Needham (1954) 56 WALR 1 Walker J gave a general definition of shop.  He said at page 10:

I think that in the common understanding of the public at large in the commercial and business life of the community a “shop” means a building or structure permanent in its location from which the occupier can at will exclude persons and in which such occupier stores, displays, offers for sale and sells over the counter his goods to persons seeking to purchase such goods on a retail basis by way of comparison with a warehouse in which goods are sold in bulk at wholesale prices to persons requiring the same for resale to consumers in small quantities at retail prices.

21      The prosecutor, following what was said in Plummer, submits that for a place to be a shop the predominant activity must involve sales.  Where the activity performed is one which involves the provision of services, it falls outside what is usually done in a shop.  It appears that the prosecutor suggests that the employment of children in the provision of services unless otherwise prescribed to be permissible would be potentially detrimental and exploitative.

22      It is important to note however that the Act does not expressly prohibit children being employed to work in the provision of services.  Indeed in some instances the Act expressly enables it.  In my view the type of work done by children, although important, is not critical. It is the working environment of a child which is critical. The working environment draws in a number of factors including the physical characteristics of the place at which a child works.   What is meant by “shop” or “other retail outlet” within the meaning of the Act has much to do with the environmental characteristics of such a place.  A “shop” or “other retail outlet” is more likely to be  a safe workplace which does not expose children to the risk of harm either by virtue of the nature of the work performed or where it is performed.  By its very nature the type of work performed at a shop is less likely to expose a child to exploitation as opposed to work carried out in a factory, yard or warehouse  which is more likely to be exploitative by exposing a child to heavy, difficult or dangerous work.

23      The definition of “shop” or “other retail outlet” for the purpose of the Act cannot be confined to the definition suggested by the prosecutor.  It must be given an ordinary meaning reflective of what is generally understood to be a shop, which may include a place where services are provided.  I would agree with the general observations of Malcolm CJ in Sharp v O’Driscoll (supra) at page 18 where he observed that the ordinary meaning of “shop” would extend to include premises such as a “barber shop” (now more commonly referred to as a hairdresser), a “tailor’s shop” and a “fish and chip shop”.  Such are primarily involved in the provision of services but are in the common view considered to be shops. This case begs the question what is a video store if it is not considered to be a shop?  Shop or other retail outlet has the meaning understood in contemporary terms. 

24      Given the working environments it would indeed be a perverse outcome if a child working for a delicatessen in a shopping centre be regarded as being permissible when another child working at the same time for a video store in adjacent premises in the same shopping centre is considered to be contrary to the law. It could not be said that working in a video store fails to promote the wellbeing of children and is exploitative.

25      In any event, Mr Scholz’s evidence, which I accept, dictates that the Video Ezy store operated by the accused and in which the children worked was, at the material time, substantially involved in retail.  It was not a business in which only services were provided, but rather one which included a substantial retail component.  The prosecutor’s contention that the business must be predominantly involved in retail is unsupported by authority.  So long as the business has a substantial retail component that is all that is required.  It need not be predominantly involved in retail to fall within the definitions.  In my view, even on a strict interpretation of the provision the accused’s trading position at the material time would be sufficient to bring it within the exception.

Result

26      I find that the accused has satisfied me on the balance of probabilities that it employed the children in a shop or other retail outlet which exempts it from the provisions of s190(1) of the Act.  It follows that the prosecution has failed to prove its case in each instance.

G Cicchini

Industrial Magistrate