Clothing & Allied Trades Union of Australia v Pedita Pty Ltd

[1986] FCA 547

NOT FOR GENERAL DISTRIBUTION

547

IN THE FEDERAL COURT OF AUSTRALIA )

1

VICTORIA DISTRICT REGISTRY	) No.	V14	of	1986
)

DIVISION	INDUSTRIAL	)
B E T W E E N :

THE CLOTHING AND

ALLIED TRADES UNION

OF AUSTRALIA

A N D :

PEDITA AUSTRALIA PTY.

LTD.

KEELY 1986 NOVEMBER, 18 J .

REASONS FOR JUDGMENT

The applicant applies under S. 119 of the Conciliatlon

and Arbitration Act 1904 (the Act) for the imposition of a penalty upon the respondent for a breach or non-observance

(the breach) of the Clothing Trades (Bradmill Industries

Limited Group) Job Protection Award 1983 (the Job Protectlon Award). The applicant also seeks payment to Mrs. Joyce Legq of an (unspecified) amount of money which, it contends, she

would have been paid but for the breach. The parties jointly

asked that, if the court found that the breach had occurred,

then both the question of the amount of any penalty to be

imposed and the question of any order In respect of an

underpayment wages of should beft further or

consideration after the parties have had an opportunity

of

considering the court's reasons for decislon and puttlnq

further submisslons.

. .

t 2.

It was common ground that:

1. The appllcant is and was at all material times an

organization of employees registered pursuant to the Act.

2. The respondent is and was at all material times a

company incorporated pursuant to the provisions of the

Companies Act.

3 . Since on or about 29 October 1984 the respondent

employed at its sewing factory in Wonthaggi (the factory),

employees who performed work described in clause 5 of the

Clothing Trades Award 1982 (the principal award).

4 . The respondent acquired the factory on or about 26

October 1984 and thereupon was bound by the Job Protection

Award.

5. On 26 October 1984 Mrs. Joyce Leqq received an offer

of employment from the respondent; she accepted that offer

and on 29 October 1984 commenced working for the respondent

at the factory as a machinlst performing work described in

clause 5 of the principal award.

The application arises from the dismissal by the

respondent of Mrs. Legg on 5 March 1985. It is convenient to

3 .

now set out certain clauses	of the Job Protection Award	and
of the principal award.

“Clothing Trades (Bradmill Industries

Limited Group) Job Protection Award	1983
4 - Scope	....

(a)	The provisions of this award shall apply
in the states of New South Wales,

Victoria, Queensland and Tasmania, in

respect to employees who are weekly or

time employees of the said

part

companies who have their employment

terminated by their employer because

they are no longer needed for any

available job.

(b)	The provisions of this award shall not apply to employees who are:
(i) Terminated account on f
malingering, inefficiency, neglect of

duty or misconduct.

(ii) Employed under clause 21 - Casual

Workers - of the Clothing Trades Award

1982.

(iii)Offered continuity of alternative

employment within the company provided

that such employment is in respect to

the same employment category, and does

not require the employee to shift their

place of residence.

5 - Notice of Retrenchment

(a) Employees whose employment is to be

terminated as a result of retrenchment

shall be given a period of notice of

termination of no less than four weeks.

(b) Where the period of notice given is less

than four weeks, employees shall be paid

at the ordinary rate for the period

equal to the difference between four

weeks’ notice and the period of notice

actually given.

4 .

9 - Severance Payments	....
(a) Subject to clause 4 - Scope of this

Award - a severance payment shall be paid to employees with one or more

years' continuous servlce wlth the

employer.

(b)	Payment W111 be calculated at the amount
of one weeks' award wage rate, as

prescribed I n clause 7 - Rates of Pay - or clause 8 - Apprentlces or Improvers

Rates of Pay - of the Clothing Trades

Award 1982, for each completed year of

service or part thereof.

(c) The severance payment shall not exceed

the amount which the employee would have

earned if employment with the employer

had proceeded to the employee's normal

retirement date.

"The Clothing Trades Award 1982

7 - Rates of Pay	....
(a) ... employees of the classifications set

out in subclause (b) hereof shall be

paid the weekly wages	set opposite those
classiflcations.

17 - Terms of Engagement	....
(a) Except as otherwlse provlded in terms of the award, all employees shall be sub~ect to a working week's notice In the termlnatlon of an engagement."

The provisions of this shall not affect	....
the rlght of an employer to dismiss any employee wlthout notice for malmgering, inefficiency, neglect of duty or misconduct. Where an employee is so dismissed payment shall be made for time
actually worked the to ime of
dismissal.

20 - Payment by Results ....

5.

...

(b) NO employer shall make a bonus or merit

payment whlch fluctuates from period to period according to the amount of work

performed by the employee concerned,

unless such employee is working under a

system of payment by results Instituted

in accordance with the provisions of

this clause.

(c) (i)	An employer may remunerate any of
his or her employees under any
system of payment by results
provided that an adult employee
covered by clause 7 of thls award
a minimum amount each week equal to ... shall while so working receive
appropriate the we kly wage
prescribed elther in clause 7 or
clause B of this award for his or
her classlfication. ...

(ii)Where an employee is working under a system of payment by results and

has for any reason attributable to

such employee not produced on at

least two of any preceding four

consecutive weeks an amount of work

which is sufficient to enable such

employee to earn the weekly wage

approprlate o his or her

classification in the award, the

employer may require such employee

to work on time-work at the weekly

wage prescribed in the award for

hls or her classification.

....

(d) An employer may fix or alter a time

standard or incentive rate in respect of

any garment or part of a garment, or any

article or part of an article, provided such time standard or Incentive rate is set so as to enable an adequately trained employee of average skill and

performance, when applying diligence and

effort, to earn between 25% to 30% more

than the weekly wage appropriate to his

or her classification in this award.

....

Cj) An employee employed under any system of

payment by results shall on any day be

pald In respect of each hour of work an

6.

amount not less than 1-38th of the

weekly wage appropriate to his or her

classificatlon in this Award, and shall

not suffer deduction from the amount

earned on any day by reason of his or

her failure to achieve incentive rates

on any other day. 'I

The matter for determination at this stage of the

hearing is, in essence, whether the applicant is correct in

its Contention that Mrs. Legg's employment was "terminated

... because Cshe was1 no longer needed for any available job"

within the meaning of clause 4(a) of the Job Protection

Award. The respondent contends that "there was plenty of

available work for employees who could perform it to the

appropriate level" and that Mrs. Legg's employment was

"terminated on account of ... inefficiency" within the

meaning of clause 4(b)(i) of the Job Protectlon Award.

Clause 7 of the principal award provided for weekly

rates of pay which were payable without reference to the output of the employees. The respondent kept records of the output of individual employees because it operated a "system

of payment by results" under sub-clause 20(a) of the

principal award and fixed what are referred to as "incentive

rates" (see sub-clauses 2O(c)(iv), (d), (e), (f), (g)(i),

(ill, (iii), (iv) and (h) of that award). Sub-clause 20(b)

of the principal award prohibited such "a system of payment

by results" unless it was "in accordance with the provisions

of" clause 20. Sub-clause 20(c)(i) permitted "payment by

results" but only on the express condition "that an adult

7 .

employee ... required ... to work under such a system shall

while SO working receive a minimum amount each week equal to

the appropriate weekly wage prescribed	... in clause 7	...
for ... her classification".

During the hearing the respondent's witnesses used the

words "make-up pay" to describe the notionally "extra" amount

payable to an employee by an employer in order to meet its

award obligation under clause 7 - although that payment is

specifically required by sub-clause 2O(c)(i) as an express

condition of the grant to the employer of the rlght to

remunerate the employees under a system of payment by

results. The court was not referred to anythlng in the

principal award which supports the use of the words "make-up

pay" to describe the payment. As the employer is obliged by

clause 7 to pay that "weekly wage" to its employees and it is

specifically provided in sub-clause 2O(c)(i) that, where an

employer uses a "system of payments by results", then the

"employee ... shall ... receive a minimum amount each week

equal to the appropriate weekly wage prescribed" by clause 7,

in my opinion it is an incorrect use of language to describe

the part of the wage, so paid in accordance with the	award,
as "make-up pay".

Further, the use of those words is quite m sleadmg if

they convey that the employer is giving the employee

something "extra" or somethlng which she has not really

8 .

earned or is not really entitled to receive. On the

contrary, the employer is not giving her anything "extra" as

it is merely complying with the express terms of the award

and the employee has earned, and is undoubtedly entitled to,

that "appropriate weekly wage" amount prescribed by clause	7
(i.e. whether it includes any "make-up pay" or not).

It may be added that sub-clauses ZO(c)(ii) and (iii)

of the principal award confer upon the employer the right to

transfer an employee to time work and provide for the method

of dealing with any complaint as to such a transfer by the

employer. Those provisions contemplate that there may be

employees to whom the employer has had to pay, on "at least

two of any preceding four consecutive weeks", the appropriate

award wage, including what the respondent's witnesses have

called "make-up pay". There is nothing in the principal

award to suggest that such an employee is necessarily

"inefficient" let alone to manifest any intention to confer

upon the employer a right to dismiss her without notice for

"inefficiency"; instead sub-clause ZO(c)(ii) permits the

employer to transfer her to "time-work". Reference will be

made later to clause 17(a) of the principal award which

contemplates dismissal without notice for "inefficiency".

Mr. Trumble, the managing director of the respondent, gave evidence that the respondent took over the factory on	26
October 1984 from Exact0 Knitwear Pty. Ltd. (Exacto). Upon

9 .

acquiring the factory the respondent decided against offering

employment to those Exacto employees who had been employed in

cutting but he other Exacto employees were offered

employment with the respondent and all but two accepted that

offer. The respondent operated two other sewing factories,

one at Northcote and the other at Thomastown. Mr. Trumble

explained that the production director (Mr. Crook) "allocates

the work to the various factories, depending on the skills

available in the factories, the workload and the need for

production at the particular time".

The T-shirts for Exacto; after the transmission employees at the factory, had been producing

of the business

to the respondent they were required to produce sleepwear and

dressing gowns. Mr. Trumble said that he anticipated a

learning period of up to three months which he described as

"over-generous" .

Mr. Trumble gave evidence at some length as to the

monitoring of the performance of the factory after the

takeover. In his evidence, Mr. Trumble both used the word

"inefficiency" and assented to questions by the respondent's

counsel which included that word. I am quite satisfied that,

in so doing, Mr. Trumble was viewing with hindsight the

dismissal of Mrs. Legg and the events leading up to it. I

shall deal further with that matter later but it is desirable

to set out first some passages from his evidence which

illustrate the use of the word "inefficiency".

10.

Mr. Trumble agreed that "the output and efficiency of

the plant Cwasl kept under review". He assented to the

following question by the respondent's counsel - "Did you and

Mr. Crook continue to assess its efficiency in January and

February 19857" Asked "as to its level of efficlency in

January and February 1985", he said it was "showing a figure

in make-up ay, which is basically inefficiency in

production, of some ... $2,900" for the third week after the

factory resumed in mid-January 1985. It will be noted that

he equated the existence of "make-up pay" with inefficiency

in production.

Mr. Trumble said that "we decided ... to dismiss the

inefficient operators, those who were ither markedly

inefficient by result [i.e. in the amount of their "make-up

pay"1 or in the opinion of our manageress [Mrs. Sharrockl,

were not capable of improving ... We then decided to remove

the work and reallocate to Thomastown, to Northcote, and we

brought in an outside contractor ... to sustain the output".

That decision had been "more or less ... taken ... over the Christmas C19843 holiday period". Mr. Trumble thought that seven people should be dismissed as "Cdleflcient people, that

one can establish from the report sheet Cas to their

performance recordsl" . It should explained, be

parenthetically, that following further consideration, the

number of employees to be dismissed was reduced to five

11.

and that it was so reduced because "we would have had a

production problem in moving work sufficiently quickly if it

was seven . . . ' I .

Those passages illustrate the way in whlch Mr.

Trumble, as a witness, sought to support the statement he had

made that "make-up pay ... is basically inefficiency in

'production" and that the "inefficient" employees could be identified "from the report sheet Cas to their performance

recordsl". I have said "Mr. Trumble, as a witness" because I

am quite satisfied that, in the period leading up to the

dismissals, Mr. Trumble, in his capacity as the managing

director, did not hold the opinion that those individual

employees were "inefficient". I find that he did not hold

that opinion until some time after the dismissal and, more

particularly, after he learned of the existence of the Job Protection Award and its use of the word "inefficiency" in

clause 4(b). It may be added that, at the time of the

dismissal Mr. Trumble was unaware of the terms of the Job

Protection Award and accordingly was unaware that the word

"inefficiency" appeared in clause 4(b)(i). It may be that he

believed, at the time of giving evidence, that he held those

views during the period leading up to the dismissals but I am

satisfied that, if he then held that belief, it was as the

result of rationalization by him.

12.

I am quite satisfied that Mr. Trumble did not, at any

time before he learned of the terms of clause 4(b) (i.e.

after the dismissals), give any consideration to the question

whether Mrs. Legg or any other individual employee was

"inefficient" within the meaning of any award clause. As

managing director he obviously wished to reduce the

respondent's costs of production and he was concerned at the

production levels of the factory because his policy was "to

sell at the keenest possible price". So much is clear from

his evidence, including a staff newsletter, written by him,

to which reference will shortly be made. I find that Mr.

Trumble, with the objective of inducing the employees in

general to Increase their production, decided that a number

of employees should be dismissed. It may be added that he

achieved that objective, because, as	he said in his evidence
in chief:

I' ... once the action was taken to tidy up

operators that we felt were not performing,

there has been a very substantial reduction

in deficiency at the plant."

It may be noted that Mrs. Sharrock said that other

employees who were also receiving "make-up pay" were not

dismissed. On all the evidence I find that the "performance

record", taken on its own, could not establish that any

individual employee was "inefficient". The number of items

produced by an employee does not depend solely upon her

"efficiency". Mrs. Sharrock accepted that "after Pedita took

13.

over ... the women used to complaln about trying to make

their money on the new garments ... because the changeover of

garments made it so much harder ... everyone was finding it

more difficult than it had been under Exacto". Further, Mr.

Trumble said he was aware of complaints, some tune before the

dismissals, that the rates set by the respondent were too

"tight", meaning that the times allowed were too short to

enable the employees to earn amounts above the award rate.

He gave evidence as to a "staff newsletter", signed by him,

which was directed to the employees in the factory in "late

1984 or the very early part of 1985". It referred to

complalnts as to the incentive rates fixed by the respondent.

In that newsletter he wrote:

"We are always prepared to admit where a

rate is wrong and can be proved to be wrong however the point is the rates set allows for an average operator to earn 30% bonus

with reasonable effort. Thls means to be on

"make up" you are more than 30% under the

rate and to achieve a 30% bonus it would

need to be increased by 60% therefore 1.0

minutes would need to be 1.6 minutes at

least which is plalnly nonsense."

I may say that it appears to me that the last sentence in that passage ltself shows a failure to understand the payment

by results system but it is not necessary to give further

consideration that to aspect in determining these

proceedings. The newsletter then continued:-

"Certainly we are aware the gown rates are

tight as are the flanelette Cslc3 however

14.

the fact of the matter is we sold a lot less

gowns and flanelette this year because we

were beaten on price by competltors and

frankly unless there is some good repeat

business for end April/May we will be in

trouble keeping everyone going.

As you know Pedita policy is to sell at the keenest possible price and we are proud of the fact we have never had to put people off

because of a lack of orders. To do this we

work on a profit of only 4% which means on a

$10 garment we make 40 cents and often do

not achieve this. You can see therefore

that once the garment 1s costed and sold at

whatever minutes we have allowed, there is

no room left to move.

Mr. Trumble gave evldence (based upon hearsay) that

recently a qualified "methods man ... felt that Mr.	Crook's
rates were a little on the loose side". I have not, of

course, given any conslderation at all to the question

whether any or all of the incentive rates were "loose" or

"tight". In any event the evidence would not enable the

court to consider that matter but, more Importantly, that is

not a matter for this court; if there is "any dispute as to

... Can1 incentive rate fixed by the employer the matter

shall r ferred be to [Arbitration3 he Commission"

(sub-clause 2O(g)(iv) of the principal award).

In final address the respondent's counsel s a d that

his primary submission was that Mrs. Legg's employment had

been "termmated on account of ... inefficlency" withln the

meaning of those words in clause 4(b)(i) of the Job

Protectlon Award. As an alternative, It was put that

sub-clauses (a) and (b) are to be read together and that, so

15.

read, an employee whose employment has been terminated on

account of inefficiency, cannot, as a matter of law, be held

to have her "employment terminated by Cher3 employer because [she was3 no longer needed for any available job" within the

meaning of clause 4(a) of the Job Protection Award.

Of course sub-clauses (a) and (b) must be read in

their context, which in each case includes the other

sub-clause. I accept that if, on 5 March 1985, Mrs. Legg's

employment was terminated on account of inefficiency then the

respondent did not breach the award in so terminating her

employment. I should perhaps add that I also accept the

respondent's submission that it is not open to the court in

these proceedings to "consider the question whether, as a

matter of objective fact, it was appropriate to describe the

employee as inefficient" or to consider whether "the court

would think it unfair to regard the employee as inefficient".

On all the evidence, I am satisfied, not merely on the

civil onus of proof, applied with regard to "the gravity of

the consequences" referred to by Dixon J. in Brlcrinshaw v

Brisinshaw (1938) 60 CLR 336 at 362, but beyond reasonable

doubt, that Mrs. Legg's employment was not "terminated on

account of ... inefficiency" within the meaning of clause

4(b)(l) of the Job Protection Award, notwithstandlng the

evidence given by Mr. Trumble and by Mrs. Sharrock.

16.

It is convenient to make some general comments on the credibility of the witnesses called by the two parties. Mrs.

Leqg was subjected skilful a o and vigorous

cross-examination, conducted in a rapid-fire manner. I have

no hesitation in accepting her as a witness who throughout

her evidence told the truth to the best of her recollection;

I accept her evidence wherever	it conflicts with that of Mrs.
Sharrock.

I also accept as a truthful witness Mrs. Birt, another

witness called by the applicant. She had been employed as a

supervisor at the factory for some years until about the time

when the respondent became the employer. I accept her

evidence wherever it conflicts with that of Mrs. Sharrock.

Although during Mr. Trumble's evidence there appeared to be certain problems of understandlnq and of communlcation at times. I did not form the opinion that he was intending to

give untruthful evidence.

The vidence given by Mrs. Sharrock was quite

unsatisfactory in a number of areas. I reject as untrue her

evidence wherever it conflicted with that of Mrs. Leqq or

with that of Mrs. Birt. Specifically, I reject as untrue all

of her answers which conveyed that she terminated Mrs. Leqq's

employment accou t n of inefflciency. her

17.

In her evidence Mrs. Sharrock, like Mr. Trumble,

assented to questions from the respondent's counsel which

included the word "inefficiency" and also used the word

"inefficiency" in her answers. I am quite satisfied,

however, that in doing so, she, like Mr. Trumble, was viewing

with hindsight the dismissal of Mrs. Legg and the events

leading up to it.

I reject he respondent's ubmission that Mrs.

Sharrock, in deciding to dismiss Mrs. Legg, "formed the

opinion that she [Mrs. Legg3 was unable to perform her duties

as a plain machinist to the required level of efficiency".

On all the evidence I find that Mrs. Sharrock did not, at any

time before the dismissal of Mrs. Legg on 5 March 1985, apply

her mind at all to the question of whether Mrs. Legg could or

should be dismissed for "inefficiency" .

In the period leading up to that dismissal, Mrs.

Sharrock was considering the question which of the employees should be dismissed; in my opinion it is clear that dismissal of employees was being considered, not because any or all of

them were "inefficient" but because, as Mrs. Sharrock

expressed it, "we had to make up too much of their pay".

Mrs. Sharrock expressly said that Mrs. Legg "was only put off

because she was not making the money. If she had been making

the money, I would have most certainly still kept her on".

She also said In her evldence in chief that the five

.

employees (including Mrs. Legg) dismlssed on 5 March 1985

were all dismissed for "the same reason'' and that reason was

"CB3ecause we had to make up too much of thelr pay";	other
employees, who were also receiving "make-up pay" at that

time, were not dlsmissed. On her evldence she and Mr. Crook

at an earlier stage (which she thought "would be in January"

1985) went through a list "to see the girls who had a lot of

make-up pay". Mrs. Sharrock said that that occurred after

Mr. Crook had telephoned her early in 1985 and "sald he was

concerned about the make-up pay ... and that we would have to

do something about it".

It may be added that she could not have given any

consideratlon, at any time up to and including the dismissal,

to the question whether Mrs. Legg was "inefflclent" wlthln

the meaning of clause 4(b)(i) of the Job Protection Award; on

her own evidence, she was not at that time aware of the terms

- or even of the existence - of that award.

Reference should perhaps be made to the fact that Mrs.

Sharrock's decision to dismiss Mrs. Legg was not a decision

to dismiss her "without notice for ... Inefficiency" within

the meaning of those words In clause 17(a) of the principal

award. Mrs. Sharrock said that Mrs. Legg could not be

dismissed without notice.

. 19.

Clause 17(a) recognizes "the right of an employer to

dismiss any employee without notice for malingering,

inefficiency, neglect of duty or misconduct". The words in

sub-clause 4(b)(i) of the Job Protection Award read:

"Terminated on account of malingering, inefficlency, neglect

of duty or misconduct". The similarity of the words in the

two clauses in the two awards might give some support to an

argument that the use of similar words in the Job Protection

Award (which in the previous clause expressly refers to the

principal award) shows an intention that the word

"inefficlency" should bear the same meaning in sub-clause

4(b)(i) as that borne by it in sub-clause 17(a) of the

principal award; as to that meaning, reference may be made to

the reasons for judgment of the Commonwealth Industrial Court

in Printinq Industrv Employees Union of Australia v Jackson

and O'Sullivan Ptv. Ltd. (1957) 1 FLR 175. However it has

not been necessary for	me	to form any opinion on that
question.

As I have already said, in my opinion neither Mrs.

Sharrock nor Mr. Trumble, at any time before the dismissal,

gave any consideration whatever to the question whether Mrs.

Legg could be "terminated on account of ... inefficiency"

within the meaning of sub-clause 4(b)(i) of the Job

Protection Award.

. 20.

1 turn now to the applicant's contention that Mrs.

Legg'S employment was terminated because she was "no longer

needed for any available job"	-	contrary to clause 4(a)	of
the Job Protection Award.

I accept the applicant's submission that the term

"available job" must refer to a job for which the employee is

suitably qualified. Mrs. Sharrock said in her evidence in

chief that Mrs. Legg's job classification was as "a plain

machinist" but that on her pay card "I think they just wrote machinist". Mrs. Legq said that at times she also performed the work of examining the quality of finished garments and

packing them and regarded herself as a proficient packer. It

may be added that Mrs. Sharrock could not remember whether on

5 March 1985 there was any of that work available for Mrs.

Legg.

There was a conflict of evidence as to the length of

time during which Mrs. Leqq had worked as an overlocker.

In her examination in chief Mrs. Leqg gave evidence that she

had four weeks' overlocking tralnlng early in 1984 and

thereafter carried out only very small amounts of overlocklnq

work with !&acto; with Pedita, that is between 29 October

1984 and 5 March 1985, she dld overlocking work only on her

last day - a statement not denied by Mrs. Sharrock.

Mrs. Sharrock gave evidence that Mrs. Legq, prior to

the takeover by Pedita in October 1984, had worked as an

overlocker for six months. In addition, Mrs. Gheller, who

also was a witness called by the applicant, gave the following evidence in cross-examination:

Question: "In the whole of that last five

or six months when Exacto were doing

T-shirts, Mrs. Leqg was working as an

overlocker, was she not?"

Answer: "Yes. 'I

I am satisfied that Mrs. Gheller was mistaken in her

answer to that question. I do not accept it as being correct

but I do not consider that she was an untruthful witness. On

this matter I reject all of the evidence given by Mrs.

Sharrock which conflicted with the very detailed evidence

given by Mrs. Legq when she was recalled as a wltness,by

leave, without objection, as to the question of what

overlocking work was done by her for Exacto. It should be

added that the applicant's counsel made It clear that he

would not object to the recall of Mrs. Sharrock, to give

evidence after Mrs. Leqq had been recalled, but the

respondent's counsel did not seek to recall Mrs. Sharrock. I accept that evidence of Mrs. Leqq, whlch was well tested in cross-examination. I also accept the evidence of Mrs. Birt,

who whilst employed by Exacto had trained overlockers, a to

the time required for an experienced overlocker to adjust to

producing the different garments manufactured by Pedita. On

2 2 .

all the evidence I find that Mrs. Legg, at 5 March 1985, was

not suitably qualified to undertake overlocking work with

Pedita.

As to the availability of work, reference has been

made earlier to the evidence that, during "either late 1984 statements:

or at the very early part of 1985", Mr. Trumble circulated to

"You should be made aware of some basic ~~~~~

facts concerning this industry and Pedita in

particular.

frankly unless there is some good repeat	....
business for end AprilIMay we wlll be in
trouble keeping everyone going."
There was considerable evidence as to the lack of work

immediately prior to the dismissals. Mrs. Legg said "a lot

of girls were sent home because there was no work". Mrs.

Dempsey, another witness called by the applicant, said that

plain machining work "was pretty scarce; It was on and off.

There was work one day and then very little the next". She

further explained that when there was no plain machining work

"we went home or we were found overlocking or packing jobs to

do" and that in FebruaryIMarch 1985 work was fairly scarce

and she went home.

.

23.

Mrs. Birt said of the situation in FebruarylMarch 1985

"I know we were getting short of plain machining". Mrs.

Sharrock, when asked whether, in the months whilst the

respondent was the employer (before the dismissals), there

had been a "slacking off on the availability of work for the

ladies on the plain sewing machines to work	on", agreed	that
"there could have been".

Following Mrs. Leqq's dismissal in March 1985 no new

employees were engaged as plain machinists until early 1986,

as Mrs. Dempsey said. Additional overlockers were engaged by

the respondent about September 1985 but Mrs. Birt could not

recall any of them being "employed as plain machinists".

I turn now to the day of the dismissal. I accept Mrs.

Legq's evidence that early on 5 March 1985 she was told by

her supervisor that "there was not enough plain sewlnq" and

that she "had to qo on overlocking"; that was the first tlme

since Pedita became her employer in October 1984 that she had

worked as an overlocker. The work done by her that day was not the subject of any criticism to her by Mrs. Sharrock or any other supervisor.

I accept Mrs. Leqg's evidence that, when she was

called in to the office, at about	4.15 p.m., Mrs. Sharrock
sald:

24.

' I . . . as manageress . . . she had some

unpleasant duties to perform and because of

the work situation, she had	to let me go.
....

she said it was nothing I had done in my

employment. "

I have no hesitation in accepting that evidence in preference

to that of Mrs. Sharrock.

It was put to Mrs. Sharrock in cross-examination that

"probably what you did say to Mrs. Legg Cwas3 that because of

the rundown in plain sewing you really could not keep her on

as a plain sewer and the only work available for her was as

an overlocker". Her reply was: "I could have said that".

Mrs. Sharrock agreed that she "could not employ her as an

overlocker, there being no plain sewing	left, because you did
not think she would make the grade."

Mr. Philopoulos, an organiser with the applicant, gave

evidence of a discussion he had with Mrs. Sharrock about one week after the dismissals; he had asked Mrs. Sharrock why

Mrs. Legg and other employees "were dismissed" and she had

"replied to me that there is no work, what can I do ... We

have not got any work".

At the time of her dlsmlssal Mrs. Legg was handed a

reference which read:

2 5 .

5 / 3 / 0 5

To whom it may concern.

Joyce Legg has been employed as a machinist,

and examiner, with Exacto Knitwear	P/L and
Pedita Aust for the past 8 112 years.

Because of work situations, due to no fault of Joyce's, I am sorry to say that I have to terminate her employment with us.

When work picks up again, I would have no

hesitation in offering Joyce her employment

back .

Yours sincerely

N. Sharrock"

Mrs. Sharrock gave evidence that in that reference she

had not stated the real reason for the dismissal because to

do so "would not have helped Joyce CMrs. Legg3 get work

anywhere else ... I just do not think it would be fair". It

may be that it is not uncommon for references to contain

statements which are not correct, but I reject Mrs.

Sharrock's evidence as to the reason for the terms of the

reference. On the contrary, on all the evidence, including

what was said at the time of the dismissal, I accept as

truthful the statements in it that the termination of Mrs.

Legg was "because of work situations" (1.e. the

unavailability of work) and "due to no fault" of Mrs. Legg.

It may be added that, when asked in cross-examination why she

had said in the reference "when work picks up . . . Mrs.

Sharrock said "I do not know".

26.

Mrs. Sharrock acknowledged that there was only "a

little bit" of "plain sewing work to do In the factory" at 5

March 1985 but said that "it built up" after two or three

weeks. She explained that the plain machinists who had not

been dismissed worked on overlocking durlng those weeks; she

said that if Mrs. Legg had been kept on there was "work

available for her to do" and that work was "overlocking". In

this connexion, there was no evidence that the plain

machining work available two or three weeks after the

dismissal was of a sufficient quantity to provlde work for

Mrs. Legg as well as work for those plain machinists who

remained as employees.

For these reasons I find that the respondent committed

a breach of the award in relation to its termination, on 5

March 1985, of the employment of Mrs. Joyce Legg. As stated

at the beginnlng of these reasons for judgment, both partles

have requested that the application be adjourned for further

hearing. That hearing is fixed	for Wednesday, 3	December
1986.
I certify this and the preceding
twenty-five pages to be a true copy of the Reasons for Judgment

of his Honour Mr Justice Keely.