RE THE AMALGAMATED METALWORKERS' UNION; EX PARTE HORWOOD BAGSHAW LIMITED

RE THE AMALGAMATED METAL WORKERS' UNION;

EX PARTE sHORWOOD BAGSHAW LIMITED

JUDGMENT WILSON J.

(IN CHAMBERS )

RE THE AMALGAMATED METAL WORKERS' UNION;

EX PARTE HORWOOD BAGSHAW LIMITED

This is an application for writs of prohibition, certiorari and mandamus directed to the Australian Conciliation and Arbitration Commission ("the Commission") in respect of a decision and order made on 24 April 1987 and 1 May 1987 respectively by Commissioner Brown in relation to an industrial dispute between. the applicant Horwood Bagshaw Limited ("the Company") and the Amalgamated

Metal Workers' Union ("the Union").

The dispute began in January 1986 when notices of dismissal were distributed to certain workers (who were members of the Union) employed by the Company. It is unnecessary to canvass the history of the dispute since that time. It is fully described in the decision of Commissioner Brown and further reference is made to it in the decision of the Full Bench of the Commission dated 25 June 1987 when it dismissed the Company's attempt to

appeal from Commissioner Brown's decision.

In substance Mr Bleby advances two grounds in support of an order nisi. The first is that the Commissioner denied natural justice to the Company in so far as he failed, following the two hearings held in November 1986, to inform the parties that he proposed to proceed to a variation to the relevant Award. This failure is alleged to have denied

to the Company an opportunity to adduce further evidence

relevant to that topic. In my opinion this ground cannot be sustained. At all times the Company must have been aware of the possibility that the Commissioner would find

it expedient to settle the dispute by varying the Award.

In the early days of the dispute the Company made application pursuant to s.34 of the Conciliation and Arbitration Act 1904 (Cth) to the President for the dispute to be referred to the Full Bench. In support of that application the Company contended that certain words in cl.42 of the Award were ambiguous and unclear, the words in question being "the ordinary and customary turnover of labour". Although the President declined to refer the matter to the Full Bench the meaning of the phrase was central to a consideration of the matters in dispute. Indeed, in the course of the lengthy hearings before the Commissioner, the Company gave detailed evidence through its Managing Director and other personnel describing the history of the Company, the manner of its operations and the effect of economic forces upon it. Mr Bleby argued that this evidence was led in order to bring the dismissals within the exception to the redundancy provisions, as being due to "the ordinary and customary turnover of labour". But it is also relevant to the question whether the circumstances surrounding the dismissals were such as to bring them within the intended reach of the redundancy principles as enshrined in the Award and consequently