Re Amalgamated Metal Workers' Union; Ex parte Horwood Bagshaw Ltd

High Court of Australia Wilson J Re Amalgamated Metal Workers' Union; Ex parte Horwood Bagshaw Ltd

Wilson J.

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 Ltd (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 whether there was any need for clarification of its provisions. The Company interrupted the hearing of the dispute by seeking in this Court a writ of prohibition directed to Commissioner Brown. The order nisi was discharged on 14 October 1986 because the Court was not satisfied that the Commissioner had decided upon a course which would lead him to exceed his jurisdiction. The possibility that he might decide to vary the Award in an attempted resolution of the dispute was canvassed in the hearing and is mentioned in the decision of the Court: Re The Amalgamated Metal Workers' Union; Ex parte Horwood Bagshaw Ltd (1986) 60 ALJR 69616 IR 19667 ALR 532. Following that decision, the Company could have been left in no doubt that if the Commissioner was to continue to exercise his jurisdiction to settle the dispute the possibility of a variation was a real one. Yet at the two hearings before the Commissioner in November the Company was content to engage in generalities in support of a request for conciliation and — if conciliation failed — for a further hearing with respect to variation. At those hearings the Union representative argued that no further hearings were necessary in order to determine the question of variation. The Company sought to appeal to the Full Bench, basing its application on an alleged denial of natural justice. The Full Bench concluded that there was no arguable case for the alleged denial of natural justice. I agree.