Australian Doctors Trained Overseas Association Inc v Director General, NSW Department of Health

1 This decision concerns an application to join the Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union, NSW Branch (the union) and union organisers, Sandra Zuliani and Martin Cartwright (the Additional Parties) to these proceedings (011076 and 011078). This application is made by John Knox (the second respondent) and his employer, RNJ Sicame Pty Ltd (the first respondent). These proceedings concern complaints of sexual harassment made by Jocelyn Sims and Elsie Dixon (the applicants) in respect of the second respondent and various employees of the first respondent. The respondents deny these allegations. 2 Points of claim have not to date been filed in this matter. For the purpose of this joinder application we proceed on the basis that the applicants assert that the conduct of the second respondent (and other employees of the first respondent) was or may have been unlawful pursuant to s 22B and s 25 of the Anti-Discrimination Act 1977 (the Act). It is contended that the first respondent is vicariously liable for the conduct of the second respondent (and other employees named by the applicants) by virtue of the operation of s 53 of the Act. 3 The applicants, the union, Ms Zulliani and Mr Cartwright, oppose the respondent's application and seek an order for costs. 4 With the consent of the parties the application to join the Additional Parties to the inquiries in respect of Ms Dixon's (011078) and Ms Sims's (011076) complaint/s are determined together. Background 5 On 14 September 2000 the union lodged complaints on behalf of Ms Dixon, Ms Sims and a third member, Farida Rafiq to the President of the Anti-Discrimination Board (respectively "the President" and "the Board") alleging discrimination on the grounds of sex and sexual harassment. All three applicants were employees of the first respondent for the period relating to their respective complaints. Each alleged they had been mistreated and sexually harassed while in the employ of the first respondent. 6 Ms Dixon alleged, among other things, sexual harassment in employment throughout the period 1 May 2000 to 15 September 2000. 7 Ms Sims made two separate complaints to the Board. The first, set out in her letter to the Board dated 15 September 2001, spanned the period 1 September 1998 to 15 September 2000; the second concerned a single incident alleged to have taken place on 14 December 2000. Ms Sims claimed that Mr Knox and other male employees of the first respondent sexually harassed her throughout the relevant period. 8 In these reasons we proceed on the basis of the outline of Ms Dixon's and Ms Sims's complaints as set out in Complaint Summary of the respective reports of the President forwarded to the Tribunal by letter dated 11 October 2001. Referral of Complaints by President 9 On 12 October 2001 after investigation of the complaints of Ms Sims, Ms Dixon (and Ms Rafiq) the President referred each complaint to the Tribunal under s 94(1) of the Act having formed the view that none could be conciliated. Reports of the investigations carried out in respect of each complaint conducted by the Board (the President's Report) were provided to the Tribunal. 10 Following notification from Ms Rafiq that she wished to withdraw her complaint the Tribunal dismissed that complaint on 11 February 2002. Relevant legislation 11 Section 98 of the Act and s 67 of the Administrative Decisions Tribunal Act, 1997 ("Tribunal Act") confer discretion on the Tribunal to join a person as a party to proceedings. 12 Section 98 of the Act provides: (1) Where, before the holding of an inquiry, or at any stage during the holding of an inquiry, the Tribunal is of the opinion that a person ought to be joined as a party to the inquiry, it may, by notice in writing given to that person, join that person as a party to the inquiry. (2) If a person is joined as a party to the inquiry as a complainant or respondent, the person is for the purposes of this Part taken to be a complainant or respondent (as appropriate) in relation to the complaint concerned. 13 Section 67(4) of the Tribunal Act, provides that the Tribunal may join parties to proceedings where the interests of that person may be affected by its decision: (4) The Tribunal may, by order, make a person who is not a party to proceedings for an original decision or review of a reviewable decision a party to the proceedings, either of its own motion or on the written application of the person, if it is satisfied that the interests of the person are likely to be affected by the original decision (or are affected by the reviewable decision). 14 In summary the Tribunal Act permits the Tribunal to join a person if it is satisfied that the interests of the person are likely to be affected by the decision. The Act permits joinder where the Tribunal is of the opinion that a person ought be joined. 15 Section 40(1) of the Tribunal Act provides that the provisions of that Act have effect "subject to any contrary provision being made in a relevant enactment (whether expressly or impliedly)". The interrelationship between s 67(4) of the Tribunal Act and s 98 of the Act was considered in Australian Doctors Trained Overseas Association Inc v Director General, NSW Department of Health [2000] NSWADT 115 [at 20-25]. In that decision Judicial Member Rees concluded [at 24] "[t]here is no meaningful difference between the two tests…the two provisions can exist in harmony". More recently that statement of the law was adopted in Bonnella v Wollongong City Council [2001] NSWADT 194 [at 12]. We see no reason to depart from that view. In our view these tests are not contradictory but rather alternate mechanisms for a person to be joined to proceedings. 16 Sub-section 67(4) of the Tribunal Act provides that a person may be joined as a "party" to proceedings. As observed by the Appeal Panel in Bignell v NSW Casino Control Authority [2001] NSWADTAP 41 [at 11] when read together with s 98 of the Act it is apparent that the term "party" in the context of s 67(4) is clearly not synonymous with "respondent". A party may be joined in proceedings without thereby attracting the status of respondent; some additional criteria may need to be met before a joined party becomes a respondent." 17 Neither the Act nor the Tribunal Act provide guidance as to the factors the Tribunal ought take account of when exercising its discretion to join a person as a party to an inquiry. This issue has been considered in some detail in the recent decisions of Z (No. 2) v University of A [2001] NSWADT 138; Z (No. 3) v University of A [2001] NSWADT 182 and Bignell v NSW Casino Control Authority. These decisions provide useful guidance as to the issues to be taken into account in a joinder application. 18 In Z (No. 2) the Tribunal refused an application for joinder as it was considered that substantial prejudice would be occasioned if the application was granted given that two and half years had elapsed since the alleged discrimination and the joinder application. The Tribunal said at [32] that there must be a clear link between the person sought to be joined and the existing complaint: Although the Act does not specify what factors should be taken into account in the exercise of this discretion, clearly the Tribunal must be satisfied that there is some link between the person sought to be joined and the existing complaint. 19 In Bignell v New South Wales Casino Control Authority the Appeal Panel considered in some detail the statutory test set out in s 67(4), in particular the meaning of the words "the interests of the person" and the term "affected". The Appeal Panel noted [at 19] that the High Court in Allan v Transurban City Link Ltd [2001] HCA 58 had endorsed a movement away from a consideration of the "interests affected" in terms of the common law rules of standing and towards a close analysis of the requirements of the legislation in question. The Panel observed [at 19] that the majority judgment (and Kirby J in a separate judgment) confirmed that the question whether interests are affected must be answered "by reference to the subject, scope and purpose of [the] statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as 'standing'". 20 In that case the Appeal Panel found that the Tribunal below had misdirected itself as to the test to be applied under s 67(4) by failing to address whether the person the subject of the joinder application, namely the Director of Casino Surveillance, was a person whose interests could be affected against the background of "the subject, scope and purpose of the AD Act 1977". The Panel said [at 22]: The subject, scope and purpose of the AD Act 1977 and equivalent legislation in other jurisdictions has been explored in the course of numerous decisions. The statutory objects include the promotion of equality of opportunity and rendering unlawful certain types of discrimination. Against this background, what interests, if any, of the Director are capable of being affected by a determination of the complaint ? 21 The Appeal Panel commented [at 12] that "the exercise of the Tribunal's discretion to join a party to an inquiry is dependent upon a finding by the Tribunal that the interests of the person sought to be joined are likely to be affected by the determination of the substantive complaint referred by the President of the Anti Discrimination Board to the Tribunal". However the Panel took the view that where such finding is made joinder is not automatic: [t]here is no compulsion on the Tribunal to exercise its discretion in favour of the joinder: see Gregor v State of Victoria [2000] VCAT 414. In Gregor , the Tribunal reviewed the factors relevant to the exercise of the discretion under s 60 (1)(b) of the Victorian Civil and Administrative Tribunal Act 1998. Section 67(4) of the ADT Act, whilst not in identical terms, is to the same effect as the Victorian provision. Those factors include whether there was any delay in making the application, whether there is any prejudice to any party or to the person to be joined that might result from the granting or the refusing of the application, whether the Tribunal will, if the person is joined, have jurisdiction to deal with the case for or against that person, and whether, where the person is to be joined as a respondent, the complainant's case against that person is not strongly arguable on a prima facie basis. 22 It is apparent from recent decisions that the factors to be taken into account by the Tribunal in exercising its discretion to join a party will vary; a "one size fits all" approach is to be avoided. Each case must be considered on its merits. See for example Z (No 3) [at 36]. Approach to the evidence 23 We accept the submission of Ms Ronalds that in a case such as this the approach to be taken in respect of evidence should be broadly comparable to the traditional approach adopted by this Tribunal to an application for dismissal made under s 111(1) of the Act. That is, the evidence of the party who makes the application for joinder should be taken at its highest. Respondents' Submissions 24 Two key propositions are central to the respondents' case. First, it is contended that the evidence will establish that there is a clear link between the conduct of each of the additional parties and the allegations of sexual harassment made by the applicants. Second, it is argued that the union, through its agent, union delegate Ms Dixon, had knowledge of the alleged contraventions of the Act of which she and Ms Sims complained. Accordingly, it is asserted that Ms Dixon aided and abetted (s 52 of the Act) the first and second respondent to do an act/s, unlawful by reason of s 22 of the Act. Through the operation of s 53 of the Act it is asserted that the union is jointly and severally liable for the conduct, Ms Dixon. 25 We turn now to consider these arguments. Ground 1: Several of the allegations of unlawful conduct took place on the picket line 26 Ms Ronalds asserts that the evidence will establish that a clear link exists between the conduct of the Additional Parties and the complaints of Ms Sims and Ms Dixon. It is contended that several incidents of sexual harassment took place on the union-organised and controlled picket line and that the applicants witnessed some of these incidents. The respondents contend that the alleged unlawful conduct, the subject of Ms Dixon's and Sims's complaints, were in fact the conduct of a number of union officials, specifically Ms Zuliani and Mr Cartwright, for which the union is vicariously liable. Accordingly, submits Ms Ronalds, it is appropriate that the additional parties be joined first, so they may answer the allegations against them; and second, be held liable for any unlawful acts committed by them in relation to the applicants. Otherwise, argues Ms Ronalds, if the Tribunal finds that the conduct complained of did occur on the picket line, and not at the workplace, the applicants would be left without remedy. 27 Central to the respondents' submission is the assertion that the conduct of which Ms Sims and Ms Dixon complain did not take place at the workplace of the first respondent but rather on the union-controlled picket line. It is common ground that the picket line was set up immediately outside the first respondent's premises and was controlled and organised by the union through Mr Cartwright and Ms Zuliani. 28 It is argued for the respondents that, in respect of Ms Dixon, it is not clear where the acts of sexual harassment are said to have taken place. Any unlawful acts that did occur, it is asserted, were committed by Ms Zuliani and Mr Cartwright. 29 A careful examination of the complaints of Ms Dixon and Ms Sims forwarded to the Tribunal by the President reveal that no allegation of sexual harassment and/ or unwelcome sexual advances and/or inappropriate conduct of a sexual or other nature was made in respect of any of the additional parties. There is simply no reference in the material forwarded by the applicants to the Board to any inappropriate behaviour on the union picket line. 30 In statutory declarations provided to the Board by Mr Knox and other employees of the first respondent various allegations are made about the inappropriate conduct of the applicants, Ms Zulaini and Mr Cartwright that took place on the picket line. Mr Knox denies subjecting either complainant to sexual harassment and alleges that they and the additional parties subjected him to abuse (including sexual harassment). 31 In our view, if, as contended for the respondents, the evidence establishes that the alleged harassment of Ms Dixon (and Ms Sims) in fact took place on the picket line by Ms Zuliani and Mr Cartwright the Tribunal would be obliged to dismiss the complaints against the respondents. It would not then, be open to the Tribunal, as we understand by implication the respondents to argue, to determine whether any or all of the applicant parties engaged in unlawful conduct contrary to s 22 F of the Act. 32 The Tribunal's jurisdiction to conduct an inquiry is circumscribed by the nature of the complaint referred to it by the President under s 94(1) of the Act. It is trite law that the Tribunal has no jurisdiction to inquire at large into matters, which take its interest. The parameters of any inquiry conducted by the Tribunal pursuant to s 96 of the Act are determined by the initiating (and any subsequent complaint/s) lodged with the Board and subsequently referred to the Tribunal under s 94(1). 33 Accordingly, in determining whether the additional parties should be joined, we must first ask what is the nature of the complaint/s before us. It is the scope of those complaints that determine whether the interests of the additional parties are likely to be affected. If, as asserted for the respondents, it is established that the acts complained of by the applicants did not take place in the workplace but on the picket line it is apparent that no remedy would lie against either respondent. However it would not be open to the Tribunal to make an order against the additional parties (assuming they had been properly joined as respondents) given the nature of the complaints referred to us by the Board. There is nothing before us which would permit us to recast the complaints of Ms Dixon and Ms Sims as complaints of sex discrimination/ sex harassment in the provision of services (assuming that the operation of a union picket line could be said to constitute a "service" for the purposes of s 4 of the Act). 34 Ms Ronalds submits that, in exercising its discretion to join a party, the Tribunal is obliged on the authority of Bignell v New South Wales Casino Control Authority to have regard to "the subject, scope and purpose of the Act. While the scope of the Act is broad, making unlawful sex discrimination and sexual harassment in prescribed areas (including the provision of services), this does not mean that the Tribunal is vested with jurisdiction to determine any contravention of the Act, which may be uncovered in the course of an inquiry. Bignell is not authority for the proposition that the Tribunal may embark on an inquiry and determine matters, which fall outside the scope of the complaint before it. 35 In the absence of a referral by the President of a complaint made by Ms Sims or Ms Dixon about conduct of the additional parties that took place on the union picket line (or at any other place), the Tribunal cannot determine such complaint. Accordingly the interests of the applicant parties are not likely to be affected by the decision of the Tribunal. Ground 2: Ms Zuliani engaged in offensive conduct towards non-striking employees while on the picket line 36 It is contended that Ms Zuliani, in the presence of the applicants engaged in what the respondents describe as "the most disgusting and offensive conduct" towards non-striking employees, including the managing director of RNJ Sicame. These actions, assert the respondents, constitute contraventions of the Act. 37 It may be that these allegations if proven would constitute a contravention of the Act. But as they were not referred to us by the Board we are without jurisdiction to determine them. Accordingly it would be inappropriate to join the Additional Parties on this ground. Ground 3: Ms Sims' complaint was fabricated 38 It is asserted for the respondents that Ms Sims' complaints of on-going workplace harassment were fabricated and represent nothing more a tactic employed by the Union as part of its industrial campaign targeted at the first respondent. Therefore, argues Ms Ronalds, it is appropriate that the Union and the named Delegates and Officials be joined. 39 If the Tribunal finds this to be the case Ms Sims complaint must fail. This would not establish that there is some link between the additional parties and the complaints before us. Ground 4: Section 52 of the Act 40 The respondents contend that the applicant parties unlawfully aided or abetted (s 52 of the Act) the second respondent to do an act, which is unlawful by reason of s 22 of the Act. Specifically it is argued that the union, through Ms Dixon, "permitted" that unlawful conduct to continue. It is asserted that the evidence will show that the union, through Ms Dixon, had actual (or alternatively ostensible) knowledge of the alleged complaints of sexual harassment of Ms Sims (and herself) but delayed bringing these allegations to the attention of the first respondent for four months. The respondent argues that Ms Dixon, as union delegate, acted as the agent of the union and as such the union as principal is liable for her conduct. 41 Section 52 makes it is unlawful for a person "to cause, instruct, induce, aid, or permit another person to do an act that is unlawful by reason of a provision of this Act". Section 53(1) relevantly provides that an act done by an agent is taken to have been done by the principal unless the principal did not either expressly or by implication authorise its agent to do the act. Section 53(2) provides that a principal and its agent, may be jointly and severally liable when both are subject to liability under the Act. 42 As Madwick J commented in Cooper v Human Rights Commission [1999] FCA 180 [at 27] the first step in establishing liability under s 122 of the Disability Discrimination Act 1992 (Clth) ("DD Act") (which is in substantially similar terms to s 52 of the Act) is to establish that there was an unlawful contravention of the Act. It is this contravention, or to put it another way, the "primary" complaint, which triggers the liability of third parties under the accessorial provisions of s 52 of the Act. 43 What then is the meaning of the word "permit" for the purpose of the s 52 of the Act? The Macquarie Dictionary defines permit to mean: -v.t. 1. to allow (a person, etc.) to do something: permit me to explain. 2. to let (something) be done or occur: the law permits the sale of such drugs. 3. to tolerate; agree to. 4. to afford opportunity for, or admit of: vents permitting the escape of gases. -v.i. 5. to grant permission; allow liberty to do something. 6. to afford opportunity or possibility: write when time permits. 7. to allow or admit (fol. by of): statements that permit of no denial. -n. 8. a written order granting leave to do something. 9. an authoritative or official certificate of permission; a licence. 10. permission… 44 Two recent decisions of the Federal Court provide guidance on the meaning of the word "permit". In Cooper v Human Rights and Equal Opportunity Commission considered the proper construction of s 122 of the DD Act. That decision concerned a review of a decision of the Human Rights and Equal Opportunity Commission (the Commission). The Commission decided that Coffs Harbour City Council (the Council) was not in breach of the DD Act by allowing the redevelopment of a cinema complex without requiring wheelchair access to be incorporated as part of that redevelopment. Section 23 of the DD Act makes it unlawful to discriminate against a person on the grounds of disability by, limiting or denying access to premises used by the public unless, to provide access would impose unjustifiable hardship on the person who would have to provided it. 45 His Honour identified the possible approaches to the construction of s 122 of the DD Act [at 34]: The degree of knowledge, if any, required to establish liability as a supposed "permitter" under s 122 is unclear on the face of the legislation. There are several possibilities: (1) on the analogy of the criminal law, see Giorgianni v The Queen (1985) 156 CLR 473, it might be that, in the absence of any material that could affirmatively satisfy the Commission that an alleged permitter knew or believed that unjustifiable hardship would not be involved, the alleged auxiliary could not be found to have permitted an unlawful act constituted by failure to provide means of access; (2) if there were some material before the Commissioner that could point to unjustifiable hardship, it might be that before a person could be said to have permitted an unlawful discriminatory act by another, the Commission would need to be affirmatively satisfied that that person knew or believed that unjustifiable hardship to that other would not be involved; (3) on the analogy of Proudman v Dayman (1941) 67 CLR 536, if the Commission was in fact satisfied that the alleged permitter knew or believed that unjustifiable hardship would be involved, liability under s 122 would not have been established; (4) such last mentioned knowledge or belief is quite irrelevant, and all that need be shown is that permission was given to discriminatory provision of access. 46 In dismissing the argument that the meaning given to the term "aid and abet" by the criminal law provided an appropriate analogy for the purpose of s 122 of the DD Act, His Honour said [at 37]: There are several reasons why it is inappropriate in this instance to adopt the high standard of knowledge required to attribute to accessories in criminal cases. The Sex Discrimination Act 1984 (Cth) has a provision in similar terms to s122 (s105 thereof) whilst the Racial Discrimination Act 1975 (Cth) does not. Section 122 has, it seems to me, been carefully drafted. Care has, in my view, been taken not to employ the traditional formula of the criminal law, "aids, abets counsels or procures", to define accessory liability. Instead the phrase used in s 122 is "causes, instructs, induces, aids or permits". It is clear that the s122 concepts are wider than the traditional criminal law concepts; one might certainly "permit" an act without aiding, abetting, counselling or procuring it. There seems little doubt that the departure from the traditional criminal law phraseology was deliberate. The civil and compensatory nature of the remedies for breach of the duties established by the Act, and its broad purposes (as to which, see below), would furnish an adequate reason why such a departure would likely have been intended. The significance of that, it seems to me, is that it puts this case outside the reasoning in Yorke v Lucas." 47 His Honour noted with approval [at 41] the following passage from the decision of Isaacs J in Adelaide City Corporation v Australasian Performing Rights Association Ltd (1928) 40 CLR 481 at 490-491: …the word "permits" is of very extensive connotation... the primary [dictionary] meaning of "permit" is: "to allow, suffer, give leave; not to prevent ..." As an illustration, a person "permits" his hall to be used for the public performance of a play ... if he knows or has reason to know or believe that the particular play ... will or may be performed and, having the legal power to prevent it, nevertheless disregards that power and allows his property to be used for the purpose. For example, ... McCardie J held that [a claim that copyright in a musical work had been infringed by the hall proprietors] was rightly abandoned. But that was because the hall proprietors "had no reasonable ground for suspecting that there would be an infringement of copyright by the band" (Emphasis added.) 48 Madgwick J characterised the approach taken by Issacs J as "turning on the necessary degree of the power to control the allegedly permitted infringement and not the degree of knowledge of it". 49 The more recent decision of Elliott v Nanda & Commonwealth [2001] FCA 418 endorsed this approach. That case concerned the operation of s 105 of the Sex Discrimination Act 1984 (Cth) ("SD Act"), which like s 122 of the DD Act is in relevantly similar terms to s 52 of the Act. 50 That case involved an allegation of sexual harassment against a doctor. The applicant was referred by an employment agency, the Commonwealth Employment Service (CES), to the respondent doctor to fill a position as receptionist. Justice Moore found that the CES had reasonable grounds for believing that there was a material chance that the applicant was at risk of being sexually harassed by the respondent doctor. His Honour concluded that the Commonwealth (through the CES) permitted the respondent to discriminate against the Commonwealth on the grounds of sex, pursuant to s 105 of the SD Act. 51 Justice Moore considered in some detail [at 161] the decision of a Full Court of the Australian Industrial Court in Young v Australian Workers' Union (1974) 5 ALR 347. There the issue was whether employers (a partnership) had breached an industrial award, which made it unlawful to permit a shearer to use an oversized comb. The Full Court quoted with approval the following passage of the judgment of Knox CJ in Adelaide City Corporation v Australasian Performing Rights Association Ltd (at 487): I agree with learned judges of the Supreme Court in thinking that indifference or omission is "permission" within the plain meaning of that word where the party charged (1) knows or has reason to anticipate or to suspect that the particular act is to be or is likely to be done, (2) has the power to prevent it, (3) makes default in some duty of control or interference arising under the circumstances of the case, and (4) thereby fails to prevent it. This statement of the legal position was not challenged in argument before this Court. 52 As noted by Justice Moore [at 161] "Their Honours found that the employers anticipated or expected that the shearers would or would be likely to use the oversized comb and the employers had the power to take whatever steps were reasonably necessary to prevent the contravention" (our emphasis) 53 Justice Moore concluded: Section 105 provides a means of bringing about lawful conduct by rendering liable a person who could prevent unlawful conduct from occurring or continuing or who assists, directly or indirectly, in its performance. A person can prevent unlawful conduct by not creating a situation where it will or may take place or altering a situation so it will not continue. In my opinion, a person can, for the purposes of s 105, permit another person to do an act which is unlawful, such as discriminate against a woman on the grounds of her sex, if, before the unlawful act occurs, the permitter knowingly places the victim of the unlawful conduct in a situation where there is a real, and something more than a remote, possibility that the unlawful conduct will occur. That is certainly so in circumstances where the permitter can require the person to put in place measures designed to influence, if not control, the person's conduct or the conduct of that person's employees. 54 In these reasons we adopt the broad approach taken in Cooper and Elliott to the meaning of the word "permit" . Accordingly the issue to be determined is whether a prima facie case is disclosed that Ms Dixon "permitted" the respondents to sexually harass and/or or unlawfully discriminate against Ms Sims and/or herself. If the answer to the question is in the affirmative it will be necessary to then determine whether, as submitted by the respondents (and disputed by the applicants and the Additional Parties), that Ms Dixon in her role as union delegate acted as the agent of the union, triggering (potentially) the operation of s 53 of the Act. 55 Did then Ms Dixon "permit" the unlawful conduct to continue of which she and Ms Sims complain? To answer this question it is necessary to examine the chronology of events predating the lodging of the complaints with the Board. On June 5 2000 Ms Sims and Ms Dixon applied to become members of the union. In or about mid-to late June Ms Dixon was elected union delegate. Following her election meetings were held between representatives of the union and the management of the first respondent. In June or July 2000 the union notified the first respondent of its intention to engage in an industrial campaign to further its claims for a Certified Agreement. Throughout the period August/September the union maintained a picket line at the front of the premises of the first respondent. 56 Following Ms Dixon's election she attended several meetings with representatives of the first respondent in her capacity as union delegate. The respondents assert that she failed to raise at those meetings any allegation of sex harassment. In so doing, argues Ms Ronalds, Ms Dixon eschewed her responsibility as a shop steward to draw such behaviour to management's attention. 57 The additional parties and the applicants reject that assertion and argue that if anything, the evidence shows that following Ms Dixon joining the union "a quick succession of events" unfolded where she took steps to represent the interests of members. The applicant parties argue that not only did the union assist the applicants lodge a complaint with the Board but demanded, as a central plank in its industrial campaign, a harassment-free work place. 58 The respondent reply that a four-month delay in lodging complaints with the Board cannot be seen as a "quick succession of events" and rather is indicative of a somewhat "leisurely approach" to the union's handling of the applicants' allegations. It was open to the union, asserts Ms Ronalds, to lodge a complaint on behalf of its members once it became aware of the complaint. 59 Ms Ronalds referred the Tribunal to a number of cases concerning workplace harassment where it was considered appropriate to join the relevant union. Djokic v Sinclair & Central Queensland Meat Export Company (Aust) Pty Limited (1994) EOC T92-643 concerned allegations of race and sex. Although not a party in those proceedings Sir Ronald Wilson was of the view that it could well have been appropriate to join the union: Unfortunately, it was not until evidence was presented during the course of the hearing in this present case that the AMIEU's [the union] true role in this sorry tale of discrimination in the meatworks was exposed. If the extent of the AMIEUs actions had been apparent in the early stages of the complaint, it could well have been appropriate to join the AMIEU as the third respondent. 60 Sir Wilson commented that that the facts of that case bore similarities with those in Horne & Anor v Press Clough Joint Venture & Anor (1994) EOC T92-556. There the Equal Opportunity Tribunal of Western Australia expressed the view: ...the Company and the Union should be jointly and severally liable for payment of the full award in respect of each complaint. The realities of the work site were such that if either the Company or the Union had taken firm and positive action, it is likely that the situation would not have developed at all - and certainly in the way and to the extent it did. 61 In Horne & Anor the applicants brought an action against their employer and their union alleging discrimination on the ground of sex under the Equal Opportunity Act 1984 (WA). The union was joined as a respondent. Explicit nude posters were displayed in the workplace. The women complained, and the material displayed became progressively more explicit and more offensive. The union officials contacted by the applicants failed to take any action, and permitted a nude poster to be displayed in the union office. The Commission held that the union could have been found to have permitted the discrimination and the applicants could have been found to be victimised by the union's shop stewards and had no difficulty finding the union was properly joined to the proceedings. 62 There are circumstances where it will be clearly appropriate for a union to be joined as a party to proceedings that concern allegations of unlawful harassment in employment. However Djokic and Horne & Anor cannot be elevated to authority for the proposition that in all cases where a union becomes aware of a contravention of the Act it will be appropriate to join it (and/ or its officers). Whether the Tribunal should exercise its discretion to join a union will depend on the circumstances of the case. 63 In this case, neither Ms Sims nor Ms Dixon, make any complaint about the conduct of the additional parties and/or the manner they dealt with their allegations of sex harassment. Nor is there anything before us to indicate that the applicants requested, expressly or by implication, any of the applicant parties to notify the first respondents, the Board or any other party about their concerns prior to when they in fact did. The facts of this case are readily distinguishable from Horne and Djokic where victims of harassment went to their union for assistance and were ignored and actively discouraged from pursuing their legitimate complaints. 64 Assuming that the respondents' argument is correct and the union, through Ms Dixon, had knowledge of the applicants' allegations, can it be said the union "permitted" the harassment to continue by failing either through Ms Dixon (or some other officer of the union) to notify the first respondent (or some other party) of the allegations? 65 We turn now to the four elements identified by Chief Justice Knox in Adelaide City Corporation v Australasian Performing Rights and referred to at [51] of these reasons that need to be established where it is claimed that one party "permitted" by indifference or omission, another to do a particular act or thing. 66 It is apparent that Ms Dixon knew or had reason to anticipate or suspect that the second respondent was likely to continue to harass her. The evidence at this point is unclear as to whether Ms Dixon knew of Ms Sims' allegations. Can it be said however that the second element is satisfied i.e. did Ms Dixon (or the union) have the power to prevent these alleged unlawful acts from continuing? For the respondents it was argued that it was open to Ms Dixon at any of the meetings she attended to bring to the first respondent's attention the unlawful acts of which she (and Ms Sims) now complain. While such a course may have been open to Ms Dixon this does not mean she (or the applicant parties) had the power to prevent the respondents' conduct. While it is open to the union, through its officers, to negotiate and/ or otherwise seek workplace reforms, this, in our view, cannot be seen as synonymous with the "power to prevent." 67 In Cooper and Elliott the respective "permitters" both occupied positions where it was within their power to prevent the primary complaint. In respect of the former it was open to the Council not to approve the redevelopment of a cinema, which did not provide for wheel chair access. Similarly in Elliott it was within the control of the CES not to refer the complainant to the respondent doctor. 68 In respect of the third element, did the union, through Ms Dixon, default in some duty of control or interference? As noted there is no material before us to suggest that the applicants requested the union to bring their complaints to the attention of the first respondent (or the Board) prior to 14 September 2000. While it may be the case that a union has a duty to take appropriate action in respect of a complaint bought to its attention by a member, the failure to immediately notify an employer of a member's complaint will not necessarily constitute a breach of a duty to that member. Indeed in such circumstances notification may constitute a breach of a duty of confidentiality. 69 In the circumstances of this case we are not persuaded that any of the applicant parties defaulted in some duty Ms Sims or Ms Dixon. 70 Accordingly we find that there is no prima facie case that Ms Dixon (acting as union delegate) or any or all of the applicant parties permitted, pursuant to s 52 of the Act, the second respondent and other employees of the first respondent to harass the applicants in the manner as alleged. Conclusion 71 Taking into account the subject, scope and purpose of the Act we are not satisfied that a prima facie case has been disclosed that the interests of any or all of the applicant parties are capable of being affected by a determination of the complaints of Ms Sims and/or Ms Dixon. Nor are we persuaded applying the test set out in Z (No 2) that a clear link exists between the conduct of any or all of the Additional Parties and these complaints. Accordingly the joinder applications are dismissed. Orders and Directions 1. Applications to join the Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union, NSW Branch, Sandra Zuliani and Martin Cartwright to proceedings 011076 and 011078 are refused. 2. Application for costs to be determined at the conclusion of the proceedings. 3. The applicants to file and serve Points of Claim, and any evidence on which they seek to rely within 28 days of the date of this decision. 4. The respondents to file and serve Points of Defence, and any evidence on which they seek to rely within 28 days of receiving the documents referred to in Order 3. 5. The applicants to file and serve any evidence in reply within 14 days of receipt of the documents referred to in Order 4. 6. The matters to be set down for a case conference for the allocation of hearing dates at a date to be fixed by the Registrar. 7. The parties be granted leave to restore this matter for further directions and/or orders upon 7 days notice. Decision revised - name of case cited amended in accordance with supression order.

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