WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. Industrial Relations Act 1979. Leighton Contractors Pty Ltd (Appellant) and Allan Graham Shuttleton (Respondent). No. 2184 of 1998. BEFORE THE FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY. COMMISSIONER J F GREGOR. COMMISSIONER S J KENNER. 4 June 1999. Reasons for Decision. INTRODUCTION THE PRESIDENT: This is an appeal against a decision of the Industrial Magistrate, made in the Industrial Magistrate’s Court at Perth on 20 November 1998. Complaints And Particulars The precise terms of each Complaint were these— “That on the 28th day of July 1995 at Bunbury Frank Alexander Cottrill threatened that discriminatory action may be taken against Leonie Rosana Kershaw by reason of the circumstance that Leonie Rosana Kershaw was not a member of an organisation of employees, contrary to s.96E(1)(a) of the Act.” “That on the 28th day of July 1995 at Bunbury Leighton Contractors Pty Ltd, not being excused by s.96H(2) of the Industrial Relations Act 1979, threatened that discrimi- natory action may be taken against Leonie Rosana Kershaw by reason of the circumstance that Leonie Rosana Kershaw was not a member of an organisation of em- ployees; contrary to s.96E(1)(a) of the Act.” The particulars of the complaints were provided on behalf of the respondent by the Crown Solicitor’s Office to the so- licitors for the appellant, then the defendant. I reproduce hereunder those particulars supplied in relation to the WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 79 W.A.I.G. 1534 complaint against the appellant and not against Mr Cottrill (see pages 13-14 of the Additional Appeal Book (hereinafter referred to as “AAB”)). “(i) Frank Alexander Cottrill was acting as an agent of the defendant company at the time when he threat- ened the discriminatory action particularised above; (ii) In the alternative, Frank Alexander Cottrill was an officer of the defendant company when he threat- ened the discriminatory action particularised above and the complainant relies on s96H(2) of the Indus- trial Relations Act 1979.” The Decisions On 20 November 1998, having found each of the defend- ants guilty, the learned Industrial Magistrate made the following orders— 1. Against Leighton Contractors Pty Ltd— (a) For the payment of witness fees $3,109.75; (b) By way of penalty $2,000.00; (c) By way of costs $6,000.00; Total—$11,109.75 2. Against Frank Alexander Cottrill— (a) By way of witness fees – Nil; (b) By way of penalty $400.00; (c) By way of costs $2,000.00; Total—$2,400.00 Against the whole of that decision, insofar as it affects the abovenamed appellant, Leighton Contractors Pty Ltd, the said appellant now appeals on the grounds reproduced later in these reasons. RELEVANT SECTIONS I reproduce hereunder, for convenience, the text of various sections. S.96E(1)(a) of the Act reads as follows— “A person, including an organization of employees, must not threaten that— (a) discriminatory action will or may be taken against a second person;” S.96H(2) of the Act reads as follows— “If an officer of a corporation is guilty of an offence against section 96C, 96D or 96E, the corporation is also guilty of that offence unless it is proved that all reasonable steps were taken by the corporation to prevent the commission by the corporation or its officers of offences under sec- tion 96C, 96D or 96E.” S.96E(4) of the Act contains a definition of “discriminatory action” and that definition is as follows— “discriminatory action”, in relation to a person, means— (a) refusing to make use of, or refusing to agree to make use of, any service offered by the person; (b) refusing to receive, or refusing to agree to receive, any goods offered by the person; or (c) refusing to supply, or refusing to agree to supply, goods or services to the person.” GROUNDS OF APPEAL The grounds of the appeal are, as amended by leave upon the hearing of the appeal herein, as follows— “1. The appellant was denied natural justice at the trial, in that the findings, set out below, departed substan- tially from the complaint and the appellant had no notice of such departure and had no opportunity to meet it. The Findings The findings were that the appellant was guilty, by reason that Cottrill, in making the threat to Kershaw, was putting into practice, the appellant company’s policy and in the premises, the threat was the final act of the appellant in the implementation of its policy. 2. Alternatively, the learned Industrial Magistrate was wrong in fact in finding that the threat by Cottrill was the final act of the appellant in the implementa- tion of its policy. His Worship’s finding, in effect, was that it was the policy of the appellant to apply the “preference to Unionists clause” contained in clause 44 of the Australian Workers’ Union Construc- tion and Maintenance Award 1989. The “threat” found by His Worship to have been made by Cottrill was not, either in terms, or in its effect, the imple- mentation of such a policy and was in fact contrary to it. Further, His Worship found Cottrill had no authority from the appellant to speak on its behalf. 3. The learned Industrial Magistrate ought to have dis- missed the complaint having found that Cottrill was not an “Officer” of the appellant within the meaning of section 96H(2) of the Industrial Relations Act 1979.” BACKGROUND At the material time, the appellant company employed a number of employees. At the time from when this offence is alleged to have occurred, the appellant company was building platforms for an oil rig for use on the Northwest shelf, and Mr Cottrill was a storeman employed by the appellant. At all ma- terial times, Mrs Kershaw carried on business as corporate caterers in partnership with her daughter, Tania Darlene Kershaw, under the firm name of “Leonie’s Catering Serv- ices”. At all material times, the respondent was an Industrial Inspector, as defined in s.7 of the Act. At the end of the case for the applicant, His Worship ruled that there was no case to answer. He ruled that, whilst Mr Cottrill was not an officer of the appellant company, there was nonetheless a case to answer (see pages 1-4 of the Additional Appeal Book (hereinafter referred to as “AAB”)). His Worship also ruled that the evidence of a number of employees of the company was admissible because those were agents of the appellant. Further, evidence of the questions put by the Industrial Inspectors, Mr Allan Graham Shuttleton and Mr James Anthony Zaknich, to various persons were held to be admissible, as were the answers to the question of which evidence was given, but the latter as to the truth of such an- swers. The conversations were also ruled to be relevant. On 28 July 1995, Mrs Kershaw had received a telephone call from Mr Frank Alexander Cottrill and she was to meet him in the afternoon at about 4.00 to 4.30 pm at the security gate for the project to discuss the requirements of the appel- lant “for the contract of the food on site”. In fact, it should be understood that the contract was not one with the respondent, as such. There was a discussion there as to her submitting a price for a contract for supplying food to workers on site. There was evidence, by way of admissions to Mr Shuttleton and Mr Zaknich, that Mr Cottrill, a storeman, had been given the task of arranging the tenders. It was during this conversation that it was alleged that Mr Cottrill committed the offence of which he was later convicted. Because of the apparent company policy, the appellant was also liable under the Act. Prior to the conversation, Mrs Kershaw had supplied food to the appellant for the ground breaking ceremony of the project on or about 1 March 1995. Mrs Kershaw’s evidence was that Mr Cottrill had contacted her and asked her to submit a tender. She attended at the secu- rity gate of the site, where she had a conversation with Mr Cottrill of which she made notes. She introduced herself as Leonie Kershaw from Leonie’s Catering Services. She used a diary in the course of the proceedings in order to refresh her memory of what had occurred. Initially, the kitchen to be used for catering for the employ- ees on site was intended to be established at the gate to the site, according to Mrs Kershaw. She was told by Mr Cottrill there was to be a meeting on 1 August 1995 for the company officials to decide who would be the successful “tenderer”. I should add that the clear evidence was that Mr Cottrill had no part in deciding who the successful “tenderer” would be. She was also told— “You have to be in the AWU or Miscellaneous Workers Union or your proposal will not be considered and you will not be allowed on site.” This was alleged by her to have been said by Mr Cottrill. Mrs Kershaw was cross-examined and it was put to her that, WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1535 79 W.A.I.G. when she was speaking to Mr Cottrill at the gate, he had said that the appellant wanted to let the tender on the basis that it would not cost them any money. She, however, denied this. It had been the practice at some sites for the owner to supply a kitchen for food contractors to use, she said. When Mrs Kershaw put in her proposal, she asked for a subsidy of $1,500.00 a month for the kitchen and that was a subject of the conversation. She was unable to remember whether Mr Cottrill had said that the appellant would not pay the tenderer any money. She said that profits were to come from the sale of food to workers. She did deny that she said to Mr Cottrill— “Look, what’s the story on unions for this?” The reason which she gave for not putting into the proposal the question of union fees was that she spoke to Mr Cottrill on Friday, 31 July 1995 and the proposal had to be in on the fol- lowing Tuesday. She said that she had insufficient time to prepare and get the information from the unions as to the fees involved. Mrs Kershaw subsequently did do some catering for the administrative staff of the appellant. She made no complaint, immediately, about the statement by Mr Cottrill concerning union membership and it was not raised until later when she was asked for her ticket before go- ing on site when catering for the administration. She complained to Mr John Greerson, a director of the respondent company. Mr Greerson said that he had told her to tell the Industry Task Force what had happened. On that occasion, she first made a complaint to the appellant about Mr Cottrill’s action. She had made a note of the conver- sation with Mr Cottrill because she made notes in her diary in relation to business propositions. She gave her evidence, ac- cording to the Industrial Magistrate, in a reasonably direct manner and was not uncomfortable in the witness box. (She was not shaken in her evidence.) In the end, notwithstanding submissions as to her evidence, it was accepted by the Indus- trial Magistrate. Evidence of Mr Johannes Antonin Dijkman There was evidence from Mr Johannes Antonin Dijkman. He, too, had been asked to submit a catering tender which he did. He was then the “proprietor” of “Bunbury Catering Con- tractors”. However, the tender was unsuccessful. On the day when he made that tender, he went with his chef, Mr Idriz Douti, to the gate site. He said that he had recorded what hap- pened on his computer, but later disposed of it. He first spoke to someone in authority when he spoke to Mr Allan Shuttleton, but by this time the matter had been put out of his mind. On 8 August 1995, he had been telephoned and asked to attend the site. This he did. There, he met Mr Cottrill who he was told was the storeman for the appellant and he handled the catering contract (see page 95(AB)). At the time, according to Mr Dijkman, Mr Cottrill said— “You know your staff have to be union members.” Mr Dijkman asked if the appellant could pay their fees (see page 96(AB)). He denied that any conversation with Mr Cottrill took place, which included his saying (see page 98(AB))— “If I get this contract, what is the story on union member- ship of the staff?” and Mr Cottrill replying— “I don’t know, I have to check with management and get back to you.” Mr Dijkman’s tender was not successful. The witness’ evidence was reasonably short and his recol- lection of what happened on the day was brief. The event occurred in 1995 and His Worship heard the evidence in 1998. However, because of the impact which the question of unions had on him, His Worship was prepared to accept the evidence. Evidence of Mr Idriz Douti Mr Idriz Douti went to the site with Mr Dijkman on 8 Au- gust 1995, but was present for only a short period. He gave evidence that they met Mr Frank Cottrill. He said that Mr Cottrill had said— “To come on site, your staff have to be members of the union.” Non-union members are not allowed on site, Mr Cottrill told them (see page 102(AB)). In cross-examination, it was put to Mr Douti that Mr Cottrill said— “No, we stay here at the gate to talk about it. You have to be a member of the union to get on site.” His Worship drew the conclusion from the evidence that Mr Cottrill said, “at the minimum”, that persons had to be in the union to come into the site. However, he was unable to draw any conclusions as to whether this was a reference to the visit by Mr Douti and Mr Dijkman or the proposal for catering. Evidence of Mr James Anthony Zaknich and Mr Allan Graham Shuttleton, Industrial Inspectors Mr James Anthony Zaknich and Mr Allan Graham Shuttleton gave evidence. These persons were Industrial Inspectors at the time the hear- ing occurred and at the time when they went to Bunbury to inquire into the matter which was on 1 November 1995. Mr Shuttleton made notes which they both relied on. They spoke to Mr Cottrill, and advised him that they were making inquir- ies concerning a complaint that persons had to be members of the union, or rather, had been said to be required to be mem- bers of the union to get on site. They told him that s.96E of the Act was breached and Inspector Shuttleton cautioned Mr Cottrill. Mr Cottrill, at the time of interview, according to their evi- dence, said that he was a storeman employed by the appellant in Bunbury. Mr Shuttleton read from a statement obtained by them from Mrs Kershaw (see page 186(AB)), in which she alleged that Mr Cottrill had said— “You have to belong to the AWU or Miscellaneous Work- ers Union or the proposal will not be considered and you will not be allowed on site.” Mr Cottrill replied that he remembered this and added— “I would have said that you would have to be a member of your appropriate union or words to that effect.” Mr Cottrill was questioned about statements from Mr Dijkman and Mr Douti. Mr Cottrill told the inspectors, ac- cording to their evidence, that he emphatically denied that he had said they could not come on site, that is, Mr Douti and Mr Dijkman, but that he possibly said (see page 188(AB))— “You need to be in a union.” Mr Cottrill, in answer to a question, said that he believed that it was company policy to require people coming on site to belong to a union, according to the evidence, and that he ini- tially got that idea from Mr Shaun McGarry. The two inspectors then spoke to Mr Shaun McGarry, Ad- ministrative Contract Manager for the appellant. He denied that he gave any instructions to Mr Cottrill or anybody else that workers on site have to join a union. He said that he had, however, discussed union coverage with Mr Cottrill. Mr McGarry said that it was an option that one of the caterers might have been told that if they did not want to join the un- ion, they could put the canteen outside the gate and work from there. He said “you cannot insist that they belong to a union”. Mr Zaknich said that it was Mr McGarry’s statement that it was the latter’s responsibility to arrange the contract for cater- ers on site. Mr McGarry, according to Mr Zaknich, said that the company would prefer people on site to join a union be- cause he had seen what union convenors do to people on site who are not members of a union. Mr McGarry said that his interpretation of what he said to Mr Cottrill was that it would be in the interests of employees to join a union, but it was not openly discussed, and he, Mr McGarry, could have suggested which union. He said that they, meaning, on my understanding, the appellant, thought that people coming on site ought to be in the appropriate union. The two inspectors then went to speak to a Mr John Greerson, whom they informed that they wished to discuss allegations that the storeman, Mr Cottrill, had told several people that they had to belong either to the Miscellaneous Workers’ Un- ion or the Australian Workers’ Union. They read from a statement of Mrs Kershaw and, later, statements from Mr Dijkman, to Mr Greerson. Mr Greerson told them that he was the appellant’s Project Manager for the Wandoo Alliance site at Bunbury. Mr Greerson WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 79 W.A.I.G. 1536 instructed Mr Cottrill, according to Mr Zaknich, to organise the catering contracts. To some extent, it was company policy to require union membership, Mr Greerson said, according to Mr Zaknich, but Mr Greerson also said, according to Mr Zaknich, that there were non-unionists on site and some people had torn up their union tickets. They work under an award with a preference clause in it and it is company policy, to some extent, to apply the preference clause. Mr Greerson said that he did not know if that clause applied to caterers, according to Mr Zaknich (see page 138(AB)). The inspectors then spoke to a Mr Donald McCaulay, the Engineering Manager. Mr McCaulay said that they cannot say that persons have to be in a union. The company policy was that they would indicate that it was “necessary no preferable” to be in a union, they would prefer people to be in the appro- priate union, he said was alleged to have said. Mr Zaknich said that Mr McCaulay told him that Mr McCaulay and another person made the choice of caterer after Mr Cottrill had done the preliminary work (see page 141(AB)) (my underlining). Mr McCaulay was said to have said this after he was asked what the company policy about people com- ing onto the premises was, and he also said— “If a truck driver came through the gates we would ex- pect him to be in the TWU.” Mr Zaknich said that Mr McCaulay told him that he had had nothing to do with the catering contract until the process was completed, that Mr Cottrill handled it all and dropped the four applications in. The successful application was selected by Stuart and Mr McCaulay, however. The inspectors then spoke to Mr Dale Rogers, the Superin- tendent in charge of Field Operations, on site at Bunbury. He said, according to them, that it was lousy that Mr Cottrill would be taking the rap for company policy after doing his job. Ac- cording to their evidence, he told Mr Shuttleton and Mr Zaknich that company policy was that anybody that came onto the ap- pellant’s site in Bunbury was to be a member of the AWU or the appropriate union. He said that the policy had not changed to his knowledge. Mr Rogers said that he had not been told that the policy had been changed and Frank (Cottrill) was only doing his job as instructed. Several days later, on 8 November 1995, Mr Shuttleton, with Mr Zaknich, spoke to Mr John Dunkley, who was State Man- ager for the appellant. They did so in Altona Street, West Perth, the main office of the appellant, and he read from Mr Cottrill’s statement to him. Mr Dunkley, inter alia, said (see page 146(AB))— “Our advice is that we are acting according to the award. We give preference to unionists. We are respondents to the federal award. With 200 on site we only have to pick one in fifty. Clearly we can pick all unionists.” Mr Shuttleton mentioned the complaint that Mr Cottrill said that persons could not come on site unless they were union members. Mr Shuttleton asked Mr Dunkley if it was company policy to not let people on site without being in the union and he said that they relied on the preference to union clause “in the award”. The award is a Federal award, “The Australian Workers’ Union Construction and Maintenance Award 1989”. His Worship observed that Mr Zaknich and Mr Shuttleton were not broken down in any way in cross-examination. Evidence on Behalf of the Respondent There was no evidence called on behalf of the appellant, at first instance. FINDINGS The learned Industrial Magistrate made the following find- ings and reached the following conclusions— 1. Mr Cottrill was not an officer of the company and therefore the excuse that the appellant took all rea- sonable steps has no application in the case. 2. The matter was not a Federal matter and the parties agreed that Federal legislation does not apply. 3. Having regard to what Messrs McGarry, Greerson, McCauley, Rogers and Dunkley told the inspectors, His Worship said that he was prepared to draw a con- clusion, beyond reasonable doubt, that there was a policy relating to union membership and the basis for the policy was the belief in the application of the Federal award. 4. Mr Cottrill did not give evidence. His Worship re- ferred to the evidence of Mrs Kershaw and accepted her version and found that he was satisfied, beyond reasonable doubt, on the evidence, that there was a threat, as alleged. 5. (a) Based on the evidence of the conversation between the inspectors and company manag- ers, a conclusion can be drawn that the managers were acting as the company. (b) That evidence was admissible. 6. For those reasons, and the policy to which he was to refer, the learned Industrial Magistrate was prepared to draw a conclusion beyond reasonable doubt that the managers were acting as the company. 7. The conversation between Mrs Kershaw and Mr Cottrill and between Messrs Dijkman, Douti and Cottrill showed a consistent approach by Mr Cottrill to union membership. 8. (a) Mr Cottrill’s comments showed that what he was saying was the company’s policy being put into practice. (b) Mr Cottrill is not an officer of the company. 9. (a) If there is not a rational reason otherwise, and none has been forthcoming, the conclusion can be safely drawn that this was the final act of the company in the implementation of its policy. (b) That conclusion depends on how His Worship was to deal with the evidence of conversations with the company managers. (c) If there was no basis to draw any conclusions as to the position of company managers, then what Mr Cottrill had to say could be taken no further. (d) From the evidence of the managers, he was able to draw a conclusion beyond reasonable doubt that there was a policy relating to union membership and the basis was a belief in the application of the Federal award. This reason was the most credible. (See pages 23 and 24 (AB) and the statements of Mr McGarry, Mr Greerson, Mr McCaulay, Mr Rogers and Mr Dunkley.) (e) The charge against Mr Cottrill was that he threatened that discriminatory action might be taken against Mrs Kershaw by virtue of the circumstance that she was not a member of an organisation of employees. (f) Mr Cottrill gave no evidence. His Worship accepted Mrs Kershaw’s evidence. (g) His Worship was satisfied beyond reason- able doubt that there was a threat made as alleged. ISSUES AND CONCLUSIONS 1. The complaint against the appellant in this matter was that it threatened that discriminatory action might be taken against Mrs Leonie Rosana Kershaw, by reason of the circum- stance that Mrs Kershaw was not a member of an organisation of employees. That is forbidden by s.96E(1)(a) of the Act, and quite clearly. 2. Presumably, the discriminatory action relied upon was “action” within the meaning of s.96E(4)(a) and (b) and not (c). 3. In addition, the complaint alleged that, in threatening that discriminatory action, the appellant was not excused by s.96H(2) of the Act. 4. Under s.96H(2) of the Act, once an officer of a corpora- tion is found guilty of an offence against, inter alia, s.96E, the corporation is, by the operation of the sub-section, guilty of that offence. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1537 79 W.A.I.G. The corporation, as defined in the Corporations Law, is not guilty of that offence if it proves that all reasonable steps were taken by it to prevent the commission by the corporation or its officers of offences under s.96E of the Act, inter alia. (The respondent was a corporation, as defined in the Corporations Law.) 5. It should be noted that the discriminatory action was par- ticularised (see pages 13-14(AAB)) in relation to the charge against Mr Cottrill (and see above)— “(ii) The defendant had a conversation with Leonie Rosana Kershaw in relation to her potential submis- sion of a tender for a contract to provide catering services for Leighton Contractors Pty Ltd’s Bunbury North Shore site; (iii) In the course of that conversation, the defendant told Ms Kershaw that she would have to belong to the AWU or the Miscellaneous Workers Union or her proposal would not be considered and she would not be allowed on site. This constituted a threat that “dis- criminatory action” may be taken, within the meaning of that phrase in s.96E(4) of the Industrial Relations Act 1979.” 5. It seems to have been common ground that Mrs Kershaw was not a member of an organisation, as defined in s.96A of the Act, where the word is defined to mean— “an organization of employers or an organization of em- ployees” 6. An organisation of employees includes, by the same defi- nition, inter alia— “an organization of employees whether constituted, in- corporated or registered under this Act or any other Act or under any Commonwealth Act...” 7. Organisations of employees include, inter alia, such or- ganisations registered under the Act of which the AWU is one. 8. Put briefly, the elements of the appellant’s offence were that it threatened discriminatory action against Mrs Kershaw by refusing to make use of or agree to make use of services offered by her, she not being a member of an organisation of employees, and it not being the policy of the appellant to al- low persons on site unless they were members of an relevant “union”, i.e. organisation of employees. 9. The effect of s.96H(2) of the Act is as follows— (a) It is not necessary to establish that the officer con- cerned was acting within the scope of his authority, absent the necessary steps by the organisation, the organisation is guilty. (b) If an officer of a corporation is guilty of an offence against s.96E, then the corporation is also guilty of that offence. (c) The corporation is not guilty of that offence if it proves that all reasonable steps were taken by the corporation to prevent the commission by the corpo- ration or its officer (a term not defined in the Act) of an offence under s.96E, inter alia. 10. It was not in issue that the appellant was, at all material times, a corporation, as that term is defined in s.96H(3) of the Act, by the Corporations Law. 11. By virtue of s.72 of the Justices Act 1902 (as amended), the complaint, insofar as it might be said to be a complaint of a simple offence or other matter, negatives the exemption, exception, proviso or condition contained in s.96H(2) and it was, therefore, unnecessary for the complainant to prove that negative. In fact, the defendant was then called upon to prove the affirmative in its defence, the affirmative being that it had taken all reasonable steps to prevent the discriminatory action being taken (see the Justices Act 1902 (as amended) s.72(1)). 12. By virtue of s.96E and s.96H(2) of the Act, a corpora- tion, as defined, may commit offences under s.96E through its officers or employees, acting within the scope of their em- ployment, although an agent, acting within the scope of his agency, may also make the company vicariously criminally liable. This is because s.96E does not modify the common law (see Ducasse v TWU and Another 76 WAIG 330 (IAC) per Kennedy J, at page 331 per Franklyn J and at 332 per Rowland J). As I have said, s.96H(2) of the Act prescribes criminal li- ability in a corporation, if an officer is guilty of a s.96E offence unless the company (corporation) is able to prove that all rea- sonable steps were taken by the company to prevent the commission of the offence. Once, however, His Worship held that Mr Cottrill was not an officer, within the meaning of s.96H(2) of the Act, s.96H(2) and all of its implications fell by the wayside. THE CASE I now turn to the case which was before His Worship. The case was that Mr Cottrill was an officer of the appellant and that the appellant was not excused under s.96H of the Act (see pages 34, 35, 45, 253, 279, 280, 281, 296, 297, 307, 321 and 353 (AB)). It is also quite clear, as was submitted, that Mr Cottrill was not an officer of the appellant (see pages 22-23(AB)). That is what His Worship found. The question then was whether Mr Cottrill was, as an em- ployee, an agent of the appellant company, acting within his ostensible authority. It was submitted that the case was not run on the basis that Mr Cottrill was an agent of the appellant, although this point was the subject of submissions by Counsel for the appellant (see pages 392-393(AB)) at first instance. It was also submit- ted that His Worship implicitly found that Mr Cottrill was not an agent (see pages 254, 392-393(AB)). Part VIA of the Act deals with “Freedom of Association” and includes prescriptions preventing certain conduct and the prescription that certain conduct constitutes an offence. It was common ground that the appellant was, at all material times, a corporation. S.96E defines, prohibits and constitutes as an offence dis- criminatory action in various forms. The most apposite definitions, for the purposes of these com- plaints, were as follows— “Discriminatory action” in relation to a person means— (a) Refusing to make use of, or refusing to make use of any service offered by any person. (b) Refusing to receive, or refusing to agree to receive any goods offered by the person. At common law, a corporation is vicariously liable for an offence committed by its servant or agent in the course of his employment or agency in the same circumstances as an em- ployer or principal who is a natural person (see Ducasse v TWU and Another (IAC)(op cit) per Franklyn J at page 332). (See, also The King and Another v Australasian Films Lim- ited and Another [1921] 29 CLR 195 at 214-215 as well.) However, in order to avail itself of s.96H(2), it was neces- sary for the respondent to establish that Mr Cottrill was an officer of the appellant, by virtue of the fact that the principal offender was one of its officers or members. It does not follow from this that an employee organisation is not liable if it has acted directly through an agent who was not an officer or mem- ber (see per Kennedy J in Ducasse v TWU and Another (IAC)(op cit) at page 330). It could not then be found that the appellant was guilty, but for proof by the respondent. After hearing argument, His Wor- ship ruled that Mr Cottrill was not an officer. It followed that s.96H(2) of the Act could not apply. That finding was made at the conclusion of the complainant’s case at first instance. How- ever, there still remained a case to answer which was responded to, not by evidence, but by submissions. That ruling has not been appealed against. No further evi- dence was called after the ruling but, as Mr Gilmour submitted, Mr Robbins, of Counsel for the appellant (the respondent at first instance), made submissions still based on the applica- tion of s.96H(2) of the Act, that all reasonable steps had been taken to prevent the commission by the corporation of its of- ficers of an offence under s.96E. Those submissions were irrelevant. At all material times, the particulars which applied were that Mr Cottrill acted as an agent of the appellant at the time when he threatened the discriminatory action particularised in com- plaint 71. The complaint was not withdrawn, I observed above. In any event, it might be said that an allegation of a company’s WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 79 W.A.I.G. 1538 liability implies allegations of unaccountability or dual corpo- rate liability, which may need to be particularised. Alternatively, the complaint alleged that Mr Cottrill was an officer of the company when he threatened the discriminatory action alleged. Particular (ii) was not required to be answered once the Industrial Magistrate ruled that Mr Cottrill was not an officer. Mr Robbins’ submissions relying on it were irrel- evant and could play no part in the Industrial Magistrate’s disposition of the case once the Industrial Magistrate ruled that Mr Cottrill was not an officer of the corporation. The first particular alleging agency was not abandoned at any time and s.96H of the Act does not exclude, as was de- cided in Ducasse v TWU and Another (IAC)(op cit), a finding that the defendant committed the acts alleged to have been committed by it through an employee or an agent. The particular that Mr Cottrill was an agent was never aban- doned. That part of the case remained alive. That part of the case was referred to in his final address by Mr Hodge, counsel for the defendant at first instance. It is fair, therefore, to say that the decision not to call evidence was made or should have been made, taking into account what the complaint still al- leged. That the act, in the case of a corporation, could always be committed through an employee or agent, is, of course, part of the common law and left undisturbed by s.96H(2) of the Act. S.96H(2) is merely a provision which imposes strict fault, sub- ject to a defendant corporation exculpating itself where a corporation’s officer is guilty of an offence. Given the par- ticulars provided, the evidence was more than evidence used to “negative” the operation of s.96H of the Act. It follows that, if a corporation’s officer is not guilty of an offence, liability can always be proven otherwise. There is no doubt that that question remained alive in this case. The discriminatory act alleged against the appellant com- pany was alleged to have been committed by it because Mr Cottrill was guilty of a discriminatory act himself and he was an officer of the appellant. He was found not to be. The allega- tion then faced was that he was an employee and, indeed, an agent, acting for the appellant corporation, within the scope of his authority. That is distinguishable as a question from the question whether the corporation acted through Mr Cottrill who was its mind and will. Criminal Liability of a Corporation A corporation may be made criminally liable by primary (direct) liability or it may be made criminally liable by sec- ondary (vicarious) indirect liability (see Lennard’s Carrier Co v Asiatic Petroleum Co Ltd [1915] AC 705 at 713 per Haldane LC). A company may be dealt with as a principal offender in cir- cumstances where it is possible to establish an identity between the human offender who perpetrated the offending act, and the company so that the acts of the individual are treated as the acts of the company (see Lennard’s Carrier Co v Asiatic Pe- troleum Co Ltd (op cit), see also Tesco Supermarkets Ltd v Nattrass [1972] AC 153, where a store manager was held not to be the directing mind and will of the company. He was a mere cog in the machine.) (See, also S & Y Investments (No 2) Pty Ltd (In liq.) v Commercial Union Assurance Co of Australia Ltd (1986) 44 NTR 14 at 29 (NTCA) per Asche CJ.) Determining whether or not a person’s activities and inten- tions can be attributed to a company is a question of law to be decided, taking into account all of the facts (see Tesco Super- markets Ltd v Nattrass (op cit) at page 170 per Lord Reid). Of interest, too, is Bernard Elsey Pty Ltd v Commissioner of Taxa- tion (Cth) (1969) 121 CLR 119. An express delegation of powers to an officer, even a rela- tively junior officer, makes matters simpler. Where no single officer possesses the appropriate state of mind on his or her own, but several officers each possess information which, when taken together, would amount to the requisite state of mind, the knowledge of several offices can be attributed to the com- pany, so that it was deemed to have the appropriate state of mind, albeit as a composite of knowledge from several serv- ices (see Brambles Holdings Ltd v Carey (1976) 15 SASR 270 at 275-276 (FC) per Bray CJ and Entwells Pty Ltd v Na- tional and General Insurance Co Ltd 5 ACSR 424 (SCWA) per Ipp J. His Honour Ipp J held, inter alia, applying Tesco Supermarkets Ltd v Nattrass (op cit) and Lennard’s Carrier Co v Asiatic Petroleum Co Ltd (op cit), that the “active and directing will” of a company may be constituted by the minds of several persons, each acting separating and independently of the others. In such event, the acts and mind of one of such persons, who so acting may be the acts and mind of the com- pany itself. Thus, unless Mr Cottrill was an officer who was the em- bodiment of the company in what he did, on the directing will and mind of the company, the company was not liable. However, the corporation cannot know or believe two con- tradictory things at once. It is a rational belief, not schizophrenia, which is to be attributed to it. Vicarious liability, the secondary liability, for offences is not to be confused with primary liability referred to in the preced- ing paragraph. Companies may be held liable under certain statutes for of- fences actually committed by any of their employees, servants or agents. The effect of the legislation of this type is to impose strict liability on a company for the acts and the state of mind of those whom it employs or engages when they act within the scope of their employment or authority (see Howard: The Criminal Law, 5th Edition). Whether a statute imposes vicarious liability will depend on the wording of the Act (see Ducasse v TWU and Another (IAC)(op cit) as authority for the proposition that the Act does) and which, on that authority, I hold. There is a third matter raised which requires some clarifica- tion. The evidence as to what the various “managers” said was admitted and used by the Industrial Magistrate as evidence of what the appellant’s policy was. Statements made to third persons by an agent, within the scope of the agent’s authority and during the continuance of the agency, may be received as admissions against the princi- pal in litigation to which the latter is a party. The existence of the agency must be proved before the agent’s admission can be received against the principal; proof of agency cannot be found in the statement itself (see Chappell v A. Ross & Sons Pty Ltd [1969] VR 376 (FC) and Fire & All Risks Insurance Co Ltd v Caratti (Bullfinch) Pty Ltd [1969] WAR 49.) Agency can, however, be sometimes implied from the circumstances. This principle, of course, applies to employees (see Markovina v R (1996) 16 WAR 354 at 382-383 (FC)). In this case, there was no challenge to the evidence and the find- ing that Mr Cottrill was an employee, subject to the control and direction of the respondent. Once that was the case, the question of his authority to act as he did remained open on the particulars. Mrs Kershaw’s version of events was accepted. Accordingly, His Worship found that Mr Cottrill told her, amongst other things, when she inquired about the “tender”— “... that I had to have the prospectus in by Tuesday, the 1st August and we had to belong, meaning me, the com- pany, had to belong to the AWU or the Miscellaneous Workers’ Union or our proposal would not be considered and we would not be allowed on site.” (See page 68(AB).) Mr Cottrill was a storeman, on the evidence, and, at all times, the decision as to who the successful “tenderer” was, was for the decision of management persons, not him. There was no evidence that he had any say in the matter at all. That finding was not challenged on appeal. I now turn to the other evidence. However, I should first say that the proposals to be considered by the appellant were not tenders for a contract with the appellant. They were in fact proposals to be licensed to go on site and sell food and drinks to the appellant’s employees. The proposal was actually lodged, but unilaterally withdrawn by Mrs Kershaw and her partner, her daughter, because of costing difficulties. Putting aside, for the moment, Mr Dijkman’s and Mr Douti’s evidence of their experience, I turn to the evidence of admis- sions made to the Industrial Inspectors, Mr Zaknich and Mr Shuttleton, which I have summarised above. There was evidence that Mr Cottrill said that people had to be in a union to get on site to work. The Industrial Magistrate found that Mr Cottrill was involved in the administration of WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1539 79 W.A.I.G. the affairs of the company, albeit the final link (see page 4 (AAB)). His Worship found that the answers to the questions were admissible as against the appellant. It is not in dispute that the appellant had complete legal con- trol over the acts of Mr Cottrill. Further, a corporation has, in a proper case, the combined knowledge or belief possessed by a number of its officers in the authorities to which I have re- ferred above. However, it cannot know or believe two contradictory things at once. In this case, there was sufficient evidence accepted by the Industrial Magistrate that, in the commission of the offence, Mr Cottrill was acting as the employee and agent of the com- pany. He had authority to arrange the “tendering process” for the site, a fact acknowledged by Mr Hodge in his final address (see page 392(AB)), and as an agent. I am of opinion, too, that the fact that Mr Cottrill was an employee and agent was adequately raised by the particulars, was never abandoned and was open, on the evidence, to sup- port the finding made. There was substantial evidence that Mr Cottrill acted as an agent and within the scope of his authority. The admissibility of the statements of admission was evidence of this relationship and evidence of the company policy. It was held that evidence of the statements made by Mr Cottrill and others were made within the scope of their author- ity. It was held, too, that they were all acting within their authority. The Industrial Magistrate found that Mr Cottrill executed the company’s policy in advising Mrs Kershaw and other “tenderers” that they had to be members of a union in order to have their tender considered. What was the policy and was it known by Mr Cottrill? The evidence of Mr Greerson’s statement was that it was not company policy to require a tenderer to belong to the AWU or the Miscellaneous Workers’ Union or to not allow that person on site if they did not have that membership. Mr Greerson’s evidence was that the appellant worked un- der an award and applied the preference clause, which required them, to some extent, to have people coming on site belong to a union. Mr Don McCaulay, the Engineering Manager, who told Mr Shuttleton and Mr Zaknich that guidelines given to Mr Cottrill were given to Shaun McGarry. His evidence was that it was “necessary – no preferable” for persons to be mem- bers of a union. He also said that it was not policy on the contracts he led to require union membership, but that the com- pany policy was that they prefer people to be in the appropriate union. Mr Rogers made it clear that it was company policy to re- quire union membership. Mr John Dunkley, the State Manager, said that the advice is that they were acting in accordance with the federal award which gave preference to unionists. With 200 on site, they only have to pick one in fifty. They can pick all unionists. He got the impression from Shaun that all people coming on site would have to belong to a union. Mr Shaun McGarry, the Contracts Officer, was said, in the evidence of his statement, that Mr Cottrill said that the admin- istration said that it would be preferable if people coming on site belonged to a union. Mr McGarry also admitted that it was a suggestion that persons not in a union set up the cafete- ria or canteen outside the gate. He said that they preferred people coming on site to belong to a union, because he had seen what union convenors do to people on site who are not members of a union. Mr McGarry conceded, according to the evidence of Mr Shuttleton, that it was company policy for people coming on site to belong to a union. Mr Greerson was the Project Man- ager. Because of divergences between those statements admitted in evidence, His Worship reached a conclusion that the man- agers were acting as the company, which he was entitled to do. He also drew a conclusion from the evidence that there was a policy relating to union membership and the basis for relief was a belief in the application of the federal award, which he found was not applicable. (In any event, the Federal award required preference to be given only to AWU members.) It was open to the Industrial Magistrate to draw that infer- ence from the evidence. Mr Greerson referred to preference. Mr McGarry denied that there was a requirement for union membership, but put it pretty strongly that that was a prefer- ence, as did Mr Greerson and Mr Dunkley. There was no denial that what Mr Cottrill said was categorically wrong. There was, too, Mr Rogers’ statement that it was not. In my opinion, therefore, there was sufficient for His Wor- ship to find that there was a policy of company “preference for unionists” on site, strong enough to enable Mr Cottrill to say, within the scope of his authority as the “arranger of ten- ders”, that persons would not be able to come on site or be accepted as “tenderers” if they did not have appropriate “un- ion” membership. Put another way, it was open to find that there was such a strong element in the evidence of all the admissions made of a strong requirement for union membership for persons “com- ing on site” that the Industrial Magistrate was properly able to find as he did. His Worship was entitled to find the complaint proven as particularised by particular (i). It is quite clear that Mr McGarry and others combined with him to act within the scope of their authority to voice and convey, through Mr McGarry, the company’s policy with au- thority. There was, within the principle, a combined statement of company policy conveyed by Mr McGarry to Mr Cottrill, sufficient to enable Mr Cottrill to act within the scope of his authority, as defined by the company policy connected to him to say that (and I paraphrase) “if you are not a member of the appropriate authority, you won’t get the tender and you can’t come on site”. That statement was not challenged as a threat of discriminatory action, as defined, and was found to be such. In my opinion, too, the statements made by all of the man- agers were generally admissible in the proceedings. The evidence was admissible as part of the res gestae rule and some evidence of truth of what Mr Cottrill said. There is evidence, also, that he was acting in the course of his employment, and that he expressed something close to what he was instructed to do by Mr McCaulay. The statement which Mr Cottrill made was indubitably part of the res gestae (see R v Dodd [1960] WAR 42, by which the Full Bench is bound and Jemelielita v The Queen (1995) 81A Crim Rep 409 (Court of Criminal Appeal WA)) and was in consequence of instructions given by his employer. Miller’s Great Northern Hotel Pty Ltd v Fingleton 7 SASR [1974] 35 is distinguishable on that basis. As to the question of natural justice being denied, the case of agency was squarely raised by the charge itself, by the par- ticulars and by the evidence led. The question of authority was covered in addresses. The appellant had ample notice of the case against it. There was adequate opportunity to call evidence to refute the evidence of agency and to otherwise make submissions. That ground also fails. I have considered all of the submissions and all of the au- thorities. I am not persuaded that His Worship erred, as he is alleged to have, on the grounds of appeal. For those reasons, I would dismiss the appeal. COMMISSIONER J F GREGOR: I agree with the conclu- sions reached by His Honour the President. It is clear that the appellant in this matter had the opportunity to deal with matters concerning agency. These were raised in the charge itself. The prosecutor provided the particulars as it is required to do and the appropriate evidence was led. It was for the appellant in this matter to decide whether it would call evidence in opposition of the arguments, particulars and facts led but it opted not to do so. That being the case, in my respectful view, it foregoes the op- portunity to raise on appeal questions of denied natural justice. The only other matter I need to raise deals with the conclu- sions His Worship reached concerning the preference clause and his conclusion that the matter before him was not a Fed- eral matter and therefore Federal legislation did not apply. In pages 358—366 Mr Hodge, who appeared at first instance for the appellant, discusses the relevance of the Federal Award and makes some concessions about its application. It could be that those concessions give rise to questions about the context on which the evidence of Mr Dunkley and Mr Greerson were given. However, the matter is not raised as a ground of appeal nor was it brought to the attention of the Full Bench during the appeal and it is therefore inappropriate that I take the issue further. I agree with the conclusions that His Honour the Presi- dent has reached about that evidence and the influence it has had on the outcome of the proceeding before His Worship. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 79 W.A.I.G. 1540 I would dismiss the appeal. COMMISSIONER S J KENNER: I have had the advantage of reading in draft the reasons of His Honour the President. I agree with those reasons. I wish to add the following observa- tions of my own in relation to the grounds of appeal. The background to the proceedings before His Worship and the grounds of appeal have has been set out by his Honour the President in detail and I need not refer to them any further. Ground 1 The gravamen of the appellant’s complaint in relation to this ground of appeal was that the case as put by the respondent before His Worship was based upon the provisions of s 96H(2) of the Act, and not on the alternative basis that Mr Cottrill, as an employee of the appellant, was either acting within the course of his employment or alternatively was acting as an agent within the scope of his agency, when the relevant con- duct occurred. It was submitted by Mr Gilmore, senior counsel for the appellant, that in substance, the case run by the re- spondent relied upon a finding by His Worship that Mr Cottrill was an “officer” of the appellant, and his conduct was not excused for the purposes of s 96H(2) of the Act. As His Wor- ship found (which finding was not attacked on appeal) that Mr Cottrill was not an officer of the appellant, and the respondent did not run its case on the alternative basis that Mr Cottrill was an agent of the appellant, then the appellant’s conviction could not have been sustained on this basis. It was submitted further by the appellant, that as His Wor- ship found that Mr Cottrill was in effect, in making the threat as to union membership, implementing the appellant’s policy in relation to union membership, and was not authorised to speak on behalf of the appellant in this regard, then by deduc- tion, the appellant was held vicariously liable at common law, by reason of Mr Cottrill acting in the course of his employ- ment, in making the relevant threat. Having regard to relevant authorities concerning the scope and role of the provision of particulars in criminal matters, the appellant said that in this case, it was denied natural justice because the respondent’s case was not put on the basis that Mr Cottrill was an employee acting in the course of his employment, and in the absence of such a finding by the court, the appellant was deprived of the opportunity of contesting whether or not Mr Cottrill was so acting. It was also submitted that the finding that Mr Cottrill was, by his conduct, implementing the appellant’s policy, con- stituted a material departure from the complaint, thereby prejudicing the appellant. Counsel for the respondent argued that whether or not Mr Cottrill, in making the threat to Ms Kershaw, was implement- ing the appellant’s policy, was a matter that was fundamental in the proceedings before His Worship. Counsel submitted that both the appellant and respondent extensively addressed this issue, and the evidence adduced by the respondent in support of it, at various stages of the proceedings, including when chal- lenges were made to the admissibility of evidence; for and against a “no case to answer” submission; and at the conclu- sion of the proceedings. It was also said by counsel for the respondent that the appellant was clearly on notice of the al- ternative particular that Mr Cottrill was acting as an agent on behalf of the appellant. It was said that the issue of the possi- ble vicarious liability of the appellant at common law was expressly dealt with by counsel for the appellant in his sub- missions during the proceedings. The respondent also referred to the matter of the appellant’s policy and Mr Cottrill’s role in implementing it as “a live issue” in the various preliminary rulings by His Worship, regarding the admissibility of evi- dence and in the “no case to answer” ruling. The Complaint and Particulars Relevantly, the complaint against the appellant alleged that on 28 July 1995, at Bunbury, it “not being excused by s 98H(2) of the Industrial Relations Act, 1979, threatened that discrimi- natory action may be taken against LEONIE ROSANA KERSHAW by reason of the circumstance that LEONIE ROSANA KERSHAW was not a member of an organisation of employees, contrary to s 96E(1)(a) of the Act.” By letter dated 27 May 1996, the Crown Solicitor’s office wrote to the solicitors for the appellant, setting out the par- ticulars of the complaint both against it and Mr Cottrill, who was also charged as a person who had committed an offence against s 96E of the Act by reason of the threat as to union membership. In order to appreciate the particulars of com- plaint against the appellant, it is necessary to also set out the particulars of the complaint against Mr Cottrill. Formal parts omitted, that letter provided as follows— “ In relation to the charge against the defendant Cottrill the particulars of the offence are as follows— i The offence was committed at the Security Gate of Leighton Contractors Pty Ltd North Shore site near Bunbury, at approximately 4.30pm on 28 July 1995; ii The defendant had a conversation with Leonie Rosana Kershaw in relation to her potential submis- sion of a tender for a contract to providing (sic) catering services for Leighton Contractors Pty Ltd’s Bunbury North Shore site; iii In the course of that conversation, the defendant told Ms Kershaw that she would have to belong to the AWU or the Miscellaneous Workers’ Union or her proposal would not be considered and she would not be allowed on site. This constituted a threat that “dis- criminatory action” may be taken, within the meaning of that phrase in s 96E(4) of the Industrial Relations Act, 1979. Otherwise this complaint is sufficiently particular- ised. In relation to the charge against the defendant Leighton Contractors Pty Ltd, the particulars of the offence are— (i) Frank Alexander Cottrill was acting as an agent of the defendant company at the time when he threat- ened the discriminatory action particularised above; (ii) In the alternative, Frank Alexander Cottrill was an officer of the defendant company when he threat- ened the discriminatory action particularised above and the complainant relies on s 96H(2) of the Indus- trial Relations Act, 1979. This complaint is otherwise sufficiently particular- ised. …” The relevant statutory provisions have been set out by His Honour the President in his reasons. Section 96H(2) is a pro- vision that imposes statutory criminal responsibility on a corporation, in the event it is established that an officer of the corporation is guilty of one of the offences under ss96C, 96D, or 96E. Whilst s 96H(2) contains an exculpatory provision, such that a corporation will not be guilty by reason of its offic- er’s conduct, if it proves that all reasonable steps were taken by it to prevent the commission of the offence, the onus to establish this is on the corporation and not the prosecution. Furthermore, the existence of a charge under s 96E of the Act, against a corporation, averring the absence of an excuse under s 96H(2), does not preclude criminal responsibility of the cor- poration, based upon vicarious liability at common law: Ducasse v Transport Workers’ Union of Australia, Industrial Union of Workers, Western Australian Branch (1996) 76 WAIG 330. In this case, the respondent put the appellant on notice, by the provision of its particulars, that it would not be solely rely- ing upon the statutory provisions in s 96H(2) of the Act, in order to establish the appellant’s guilt on the charge as pre- ferred. As a matter of general principle, a defendant to criminal proceedings is entitled to know what offence he or she is fac- ing and is entitled to be supplied with such particulars of the alleged offence as are reasonably necessary to enable a de- fence to be mounted: Johnson v Miller (1937) 59 CLR 467; Cook’s Hotel Pty Ltd v Pope (1983) 34 SASR 292. In the ab- sence of an amendment, particulars which do not identify the essential factual ingredients of the actual offence charged, may be fatal to a prosecution: Johnson v Miller (supra); Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150. The impor- tance of proper particulars in cases involving serious charges is well established: Coward v Stapleton (1953) 90 CLR 573 at 579-580; Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100 at 118. In Bunnings Forest Products Pty Ltd v Shepherd (unreported Full Court Supreme Court of WA 5 May 1998) the court con- sidered an appeal from a conviction by a Magistrate under WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1541 79 W.A.I.G. s 19 of the Occupational Safety and Health Act 1984. Anderson J, after considering the relevant principles concerning the suf- ficiency of particulars in criminal matters, concluded in that case, there was such a substantial departure from the particu- lars of the complaint in the case as put by the prosecution, that there had been a miscarriage of justice. When considering the conduct of the proceedings, Anderson J observed as follows at 14— “In my opinion, if the case below had been conducted in an orthodox manner, it would have been dismissed for want of proof of the central element in the prosecution case as particularised, that, at the time he met his death, the deceased was engaged in attempting a task which he had been instructed to perform. When a person is charged on particulars giving one set of facts, he really cannot be convicted on proof of a different set of facts—at least not unless he has had a fair opportunity of defending himself on those different facts (Boral, supra)… If that is how the case was put (and it is not possible to be completely sure), it was, of course, a very different case from the case par- ticularised.” For the reasons that follow, the circumstances arising in Bunnings (supra) were very different to those arising on this appeal. In my view, the appellant was sufficiently on notice of the case that it had to meet and had an adequate opportunity to present its case. As noted above, central issues in the proceedings before His Worship were what was the appellant’s policy in relation to union membership and secondly, what was Mr Cottrill’s role, if any, in the implementation of that policy. Those issues were the subject of extensive evidence adduced by the respondent through the evidence of Ms Kershaw (AB 63-93); Mr Dijkman (AB 94-101); Mr Douti (AB 101-105); and industrial inspec- tors Zaknich (AB 106-115, 130-177) and Shuttleton (AB 181-218). Whilst it can fairly be said that the thrust of the respondent’s case against the appellant was based on s 96H(2) of the Act, and the consequential need for a finding that Mr Cottrill was an “officer” of the appellant, the first particular, that Mr Cottrill was acting as an agent of the appellant, was never abandoned by the respondent. As was submitted by counsel for the re- spondent on the appeal, this remained a live issue. This was clearly the case. Submissions were made by both the appel- lant’s and respondent’s respective counsel as to the role of Mr Cottrill in implementing the appellant’s policy regarding un- ion membership: (see: AB 309-312; AB 249-350; AB 234-235; AB 263-264; AB 314-315.) In this regard, Mr Robbins for the respondent, in response to the appellant’s “no case” submission as to whether Mr Cottrill was an “officer”, said at AB 307— “As to the common law interpretation, we identified there some evidence. Bear in mind, Your Worship, we’re deal- ing here with a submission by my learned friend that there is no case to answer. We say with respect that there is. The evidence establishes that Cottrill was assigned re- sponsibility to arrange the tendering process relating to the on-site provision of food and I would like to take you very briefly, if I may, to some of these passages because in responding to my learned friend we should identify to Your Worship those passages which provide some evi- dence of the element in question; that is to say, his role as officer… At page 102 of the transcript, at the very bottom of the page, Inspector Shuttleton then asked him— “What is your role in relation to the contract for the cater- ers on site?— it was my responsibility to arrange it.” After referring to other passages of evidence from other witnesses regarding Mr Cottrill’s conduct, Mr Robbins con- tinued at AB 308— “That’s Mr Shuttleton in-chief. So those passages go to establishing the responsibility that Cottrill had and, in our submission, go to the identifying of Cottrill at common law as an officer of the corporation.” Further on in his submissions at AB 312 Mr Robbins said— ‘It’s our submission, Your Worship, that although Cottrill was substantially employed as a storeman, in performing his duties relating to the supply of food to the project, Mr Cottrill was performing duties of a managerial and/or ad- ministrative nature and he was holding himself out, with the company’s approval, as a officer of the company… it is our submission, Sir, that both at common law and un- der the Corporation’s legislation, you would find that there is a case to answer. It is our submission that the interpre- tation that we’ve submitted to Your Worship of s 96H prevents a company frustrating the purposes of the sec- tion of the Act by instructing junior employees’ to carry out the discriminatory act with which s 96H is concerned.” It is clear from these passages of transcript, and the evi- dence to which Mr Robbins referred, that the role, function and authority of Mr Cottrill, as an employee of the appellant, was a central issue in the proceedings. Whilst these submis- sions were directed to the issue of Mr Cottrill as an officer of the appellant, that does not preclude these same matters as being relevant to Mr Cottrill acting as an employee within the course of his employment. Indeed, it is almost invariably the case that an officer of a corporation will be a senior employee and also, to an extent, acting as an agent of his or her em- ployer. As to the appellant being on notice of the possible alternative basis of conviction, other than under s 96H(2), the submissions of the appellant’s counsel indicate that he was alive to the possibility of the appellant being convicted at com- mon law. This being either on the basis that Mr Cottrill was acting as the company, in the sense that he was its directing mind and will, or alternatively, that the appellant may be held vicariously liable for Mr Cottrill’s conduct (see: AB 249-250; 260-264; 266-267; 392-394). In particular, the appellant’s sub- missions at AB 392-393 make it plain that there was a recognition of vicarious liability and counsel addressed His Worship as to why he should not find the appellant guilty on this basis. It is important to observe in relation to this ground of ap- peal, that despite the existence of the allegation that Mr Cottrill acted as the appellant’s agent (which was never abandoned), the evidence led by the respondent, and the ruling by His Worship that the appellant had a case to answer, the appellant elected to call no evidence. There is no material distinction between the test of the scope of authority applying to agents and employees: Heatons Trans- port (St Helen’s) Ltd v Transport and General Workers’ Union [1973] AC 15. Indeed, at common law, there is a considerable overlap between the legal concepts of employment and agency, with all employees, to an extent, being an agent of their em- ployer: The Law of Employment Macken, McCarry and Sappideen (4th ed) 1997 pp 48-50 (see also Gilles (supra) at 513 in relation to admissions by employees and agents against a principal). Furthermore, the ruling of His Worship on the “no case” submission, clearly put in issue Mr Cottrill’s position and re- sponsibilities regarding the catering contract for the site, in terms of his involvement in the administration of the affairs of the appellant. In my view, this ground of appeal is not made out. Grounds 2 and 3 For convenience I will deal with grounds 2 and 3 together. In essence, the appellant’s complaint in relation to these grounds was that His Worship was in error in concluding that Mr Cottrill’s threat to Ms Kershaw, regarding union member- ship, was the final act of the appellant in the implementation of its policy. It was submitted that the appellant’s policy was in fact, based upon His Worship’s findings, the application of the “preference to unionists clause” in clause 44 of the Aus- tralian Workers’ Union Construction and Maintenance Award 1989 (Federal) (“the Award”). It was further submitted that having found that Mr Cottrill was not an officer of the appel- lant for the purposes of s 96H(2) of the Act, the complaint should have been dismissed. This matter is related to ground 1, in the sense that it was submitted that no alternative case was put by the respondent, in terms of particular (i) of the particulars of the charge against the appellant. Counsel for the respondent submitted that His Worship con- cluded that the preference clause contained in the Award formed the “background” to his conclusions in relation to the appel- lant’s policy regarding union membership. It was said by counsel that based upon the evidence before the court, includ- ing the evidence of the admissions made by Mr Cottrill to the WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 79 W.A.I.G. 1542 industrial inspectors, which was admitted over objection from counsel for the appellant, there was sufficient evidence that Mr Cottrill was acting, in his capacity as an employee of the appellant, as an agent of the appellant who had the authority to arrange the tendering process for on-site catering. The state- ments made by him to Ms Kershaw and others, it was submitted, were within the scope of that authority, expressly or by implication. The admissibility of the statements made by Mr Cottrill to the industrial inspectors, as against the ap- pellant, was not attacked on appeal before the Full Bench. After summarising the evidence led by the respondent, in- cluding Ms Kershaw, Mr Dijkman, Mr Douti and the evidence of the industrial inspectors Zaknich and Shuttleton, His Wor- ship was prepared to draw a conclusion beyond reasonable doubt, that there was a policy relating to union membership, based on a belief in the application of the Award. His Worship was satisfied on the evidence, that there was a policy of some form from the evidence of the appellant’s managers which he accepted, with the Award being the most likely explanation for that policy: AB 25. He further concluded that Mr Cottrill was, in speaking with Ms Kershaw in relation to her proposed tender for catering on the appellant’s site, in effect, the “final link in the chain” in implementing the appellant’s policy that all persons going on the appellant’s site be a member of the AWU or the appropriate union. In the absence of any evidence led by the appellant, His Worship accepted the evidence led by the respondent in total. The various extracts of evidence relevant to these grounds of appeal have been set out by His Honour the President and I need not repeat them. In my opinion, there was ample evi- dence before His Worship for him to infer that the appellant had a policy in relation to union membership. It was open to conclude on the evidence, that this policy was communicated to Mr Cottrill, in his capacity as the person responsible for arranging the tenders for the catering for the site, which re- quired persons coming on to the site to be a member of the appropriate union. It was also the case that His Worship con- cluded in his ruling on the “no case to answer” submission, that Mr Cottrill was, from all of the evidence before the court, in dealing with the catering tender, involved in the administra- tion of the affairs of the appellant, albeit as the “final link”: AAB 4. Furthermore, in his ruling dealing with the admissibility of evidence, His Worship, after considering the relevant authori- ties, concluded that the evidence from the various managers of the appellant who were spoken to by the industrial inspec- tors, were authorised to speak on behalf of the appellant, at least in relation to their respective level of position held within the appellant: AAB 9. His Worship also concluded, based upon that evidence, that statements made by Mr Cottrill, to the ef- fect that “administration think people who are coming onto site ought to be in the appropriate union”, that he believed that he was complying with company policy in only allowing peo- ple on site who were in a union and that he got the impression from Shaun McGarry, the appellant’s administrative contract manager, that people coming on site would probably need to be a member of a union, where all admissible against the ap- pellant as evidencing “a link in the chain”: AAB 11-12. His Worship concluded that Mr Cottrill was not, in his dis- cussions with Ms Kershaw, acting as “the company”, at least in the sense of Tesco Supermarkets Ltd v Nattrass (1972) AC 153, (see: AB 254; AAB 17). There was however, no finding that Mr Cottrill was not acting within the scope of his author- ity in dealing with Ms Kershaw, in going about his duties in arranging for the lodgement of tenders for the catering serv- ices to be provided on site. Indeed, as noted above, it was concluded that Mr Cottrill was, to this extent, involved in the administration of the affairs of the appellant. It was also sub- mitted by counsel for the respondent, and in my view correctly, that there was in this regard a concession by the appellant as to Mr Cottrill’s actual authority and power to invite tenders and this of course, entailed the authority to discuss the tender with Ms Kershaw: AB 393. When taken with all of the evidence before the court in rela- tion to arrangements for the tendering for on-site catering, the evidence as to the appellant’s policy as passed on to Mr Cottrill, at least by Mr McGarry, and the evidence of other managers of the appellant as to the appellant’s approach to union membership, it was open for His Worship to infer that Mr Cottrill was, in speaking with Ms Kershaw as he did, acting within the scope of his express or implied authority, and thereby putting the appellant’s policy as to union membership into ef- fect. In this regard, counsel for the respondent referred to Law of Evidence in Australia (2nd Ed) by Gillies, regarding state- ments made by employees or other agents to third persons as being admissible against a corporation. It is said at 513— “Whether the natural person whose admissions are sought to be attributed to the company is a senior officer or a more junior employee or other agent, the question is es- sentially the same – was this person acting within the express or implied scope of his or her authority? He or she acts within implied authority when the statement in question is made as a normal incident in the per- formance of a task or tasks given to him or her by the company.” (My emphasis) In my view, it was open to infer from all of the evidence, that the statements made by Mr Cottrill to Ms Kershaw in relation to union membership, when viewed against the back- drop of the evidence as to the appellant’s approach in this regard, were made as a normal incident in the performance of the task of arranging for the lodgement of tenders for the on- site catering. Having regard to all of these issues, the evidence and the materials before His Worship, in my view, notwithstanding the able submissions by Mr Gilmore to persuade the Full Bench to the contrary, none of the appeal grounds are made out and the appeal should be dismissed. THE PRESIDENT: For those reasons, the appeal is dis- missed. Order accordingly APPEARANCES: Mr J Gilmour QC (of Counsel), by leave, and with him Mr D Howlett (of Counsel), by leave, on behalf of the appellant Ms J Smith (of Counsel), by leave, on behalf of the respond- ent