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

High Court of Australia Mason, Wilson, Brennan, Deane & Dawson J Re Amalgamated Metal Workers' Union; Ex parte Horwood Bagshaw Ltd

Mason, Wilson, Brennan, Deane & Dawson JJ

This is an application to make absolute an order nisi for prohibition directed to Commissioner Brown of the Australian Conciliation and Arbitration Commission (the Commission) prohibiting him from further proceeding with hearing or from making any award, determination or decision in relation to a dispute between the Amalgamated Metal Workers' Union (the union) and the prosecutor, Horwood Bagshaw Ltd.

The dispute arises out of the termination by the prosecutor between 6 and 10 January 1986 of the services of a number of its employees, some or all of whom were members of the union. The union claimed that the termination of employment was such as to bring it within the provisions of cl 42 of the Agricultural Implement Making Award 1980 (the award) as varied on 9 April 1986 with retrospective effect from the beginning of the first pay period commencing after 10 May 1985. Termination of employment under that clause entitled an employee to severance pay, the amount payable being calculated by reference to the length of the employee's service. The prosecutor, claiming that the award distinguishes between retrenchment and redundancy, denied that it was liable for severance pay under cl 42 and asserted that it had retrenched the employees in question pursuant to cl 6 of the award which governs termination of employment generally.

On 16 January 1986 the union notified the Commission of the existence of an industrial dispute under s 25 of the Conciliation and Arbitration Act 1904 Cth (the Act), as amended. The notification described the dispute in these terms:

With respect to refusal by the above company to make redundancy payments, provided for in the Agricultural Implement Making Award 1980, to redundant employees who are members of this and other unions. The notification requested "that the Commission do all such things as it deems necessary and desirable for the prompt settlement of the dispute".