NOT FOR GENERAL DISTRIBUTION aL wok OL InQugtrias wav - Preach ar nmen-sortervance or award - reazans roe dismizsal oof employee - whether dismissal amounted co retrencnment - whether dismissal on account |r inerriciencr. Vanc1liation and arbitration Act laud 3, Lis Ulothing Trades Award Lsis2 industrie3 Led. Grou Job tBradmilil Wlothing 'Vrades Erotection Award lyi3 brigdinghaw 7 pridqinghaw «1l438) mu CLR 240 Feinting industry Emplovees Wnion or 4ust. 7 Jackson and woooubiivan re, Led. ibys 6 Lb pork L'5 bLUTHIINS AND ALCIED TRADES UNUM OF AMSTRALCA + EEDITA PTY. "LVo. Vhe or Lake KEELY J. Ld WWVEMBER, Lodo MELBUUFNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No. V14 of 1986 ween INDUSTRIAL DIVISION BETWEEN: THE CLOTHING _AND ALLIED TRADES __ UNION OF AUSTRALIA AND PEDITA AUSTRALIA PTY. LTD. 18 NOVEMBER, 1986 KEELY J. REASONS FOR JUDGMENT The applicant applies under s. 119 of the Conciliation 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 Protection Award). The applicant also seeks payment to Mrs. Joyce Legg 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 of wages should be left for further consideration after the parties have had an opportunity of considering the court's reasons for decision and putting further submissions. It was common ground that: 1. The applicant 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 Legg 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 machinist 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 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 part time employees of the said 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 on account of malingering, inefficiency, neglect of duty or misconduct. (ii) Employed under ciause 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 1s 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. 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 service with the employer. (b) Payment will be calculated at the amount of one weeks' award wage rate, as prescribed in clause 7 - Rates of Pay - or clause 8 - Apprentices 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 classifications. 17 - Terms of Engagement (a) Except as otherwise provided in terms of the award, all employees' shall be subject to a working week's notice in the termination of an engagement." The provisions of this shall not affect the right of an employer to dismiss any employee without notice for malaingering, inefficiency, neglect of duty or misconduct. Where an employee is so dismissed payment shall be made for time actually worked to the tame of dismissal. 20 - Payment by Results (b) (c) (da) (fj) No employer shall make a bonus or merit payment which 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. (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 this award --. Shall while so working receive a minimum amount each week equal to the appropriate weekly wage prescribed either in clause 7 or clause 8 of this award for his or her classification. ... (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 appropriate to 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 his or her classification. 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. An employee employed under any system of payment by results shall on any day be paid in respect of each hour of work an amount not less than 1-38th of the weekly wage appropriate to his or her classification 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." 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 was] 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 Protection 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 1t 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 20(c)(iv), (dad), (e), (f), (g)(i), (il), (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 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 ... 1n 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 20(c)(i) as an express condition of the grant to the employer of the right to remunerate the employees under a system of payment by results. The court was not referred to anything 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 20(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 1t 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 1s quite misleading 1f they convey that the employer is giving the employee something "extra" or something which she has not really 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 20(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 20(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 Exacto Knitwear Pty. Ltd. (Exacto). Upon acquiring the factory the respondent decided against offering employment to those Exacto employees who had been employed in cutting but the 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 employees at the factory, had been producing T-shirts for Exacto; after the transmission 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 1t is desirable to set out first some passages from his evidence which 1llustrate the use of the word "inefficiency". 10. Mr. Trumble agreed that "the output and efficiency of the plant [was] 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 1985?" Asked "as to its level of efficiency in January and February 1985", he said it was "showing a figure in make-up pay, 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 either markedly inefficient by result Ci.e. in the amount of their "make-up pay"J or in the opinion of our manageress CMrs. 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 €1984] holiday period". Mr. Trumble thought that seven people should be dismissed as "CdJeficient people, that one can establish from the report sheet Cas to their performance records". It should be explained, parenthetically, that following further consideration, the number of employees to be dismissed was reduced to five ll. and that it was so reduced because "we would have had a production problem in moving work sufficiently quickly if it was seven ...". Those passages illustrate the way in which 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 [as to their performance records]". 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 hoid 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: ---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 complain 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 time 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 toa "staff newsletter", signed by hin, which was directed to the employees in the factory in "late 1984 or the very early part of 1985". It referred to complaints 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. This 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 plainly nonsense." I may say that it appears to me that the last sentence in that passage itself shows a failure to understand the payment by results system but it is not necessary to give further consideration to that aspect in determining these proceedings. The newsletter then continued:- "Certainly we are aware the gown rates are tight as are the flanelette [sic] 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 competitors 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 ona $10 garment we make 40 cents and often do not achieve this. You can see therefore that once the garment is costed and sold at whatever minutes we have allowed, there is no room left to move." Mr. Trumble gave evidence (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 consideration 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 ... Can] incentive rate fixed by the employer the matter shall be referred to the CArbitrationJ Commission" (sub-clause 20(g)(iv) of the principal award). In final address the respondent''s counsel said that his primary submission was that Mrs. Legg's employment had been "terminated on account of ... inefficiency" within the meaning of those words in clause 4(b)(i) of the Job Protection Award. As an alternative, 1t 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 Cher] employer because Cshe was] 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. 1n Briginshaw v Briginshaw (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)(1) of the Job Protection Award, notwithstanding 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. Legg was subjected to a skilful and vigorous cross-examination, conducted ina 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 1t 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 understanding and of communication at times, I did not form the opinion that he was intending to give untruthful evidence. The evidence 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. Legg or with that of Mrs. Birt. Specifically, I reject as untrue all of her answers which conveyed that she terminated Mrs. Legq's employment on account of her inefficiency. 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 the respondent's submission that Mrs. Sharrock, in deciding to dismiss Mrs. Legg, "formed the opinion that she CMrs. Legg] 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 evidence in chief that the five 18. employees (including Mrs. Legg) dismissed on 5 March 1985 were all dismissed for "the same reason" and that reason was "CBlecause we had to make up too much of their pay"; other employees, who were also receiving "make-up pay" at that time, were not dismissed. On her evidence 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 "said 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 consideration, at any time up to and including the dismissal, to the question whether Mrs. Legg was "inefficient" within 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, inefficiency, 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 "inefficiency" 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 Printing Industry Employees Union of Australia v Jackson and O'Sullivan Pty. 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. I 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. Legg 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. Legg had worked as an overlocker. In her examination in chief Mrs. Legg gave evidence that she had four weeks' overlocking training early in 1984 and thereafter carried out only very small amounts of overlocking work with Exacto; with Pedita, that is between 29 October 1984 and 5 March 1985, she did overlocking work only on her last day - a statement not denied by Mrs. Sharrock. 21. Mrs. Sharrock gave evidence that Mrs. Legg, 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. Legg was working as an overlocker, was she not?" Answer: "Yes." 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. Legg when she was recalled as a witness,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. Legg had been recalled, but the respondent's counsel did not seek to recall Mrs. Sharrock. I accept that evidence of Mrs. Legg, which was well tested in cross-examination. I also accept the evidence of Mrs. Birt, who whilst employed by Exacto had trained overlockers, as to the time required for an experienced overlocker to adjust to producing the different garments manufactured by Pedita. On 22. 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 or at the very early part of 1985", Mr. Trumble circulated to Pedita employees a staff newsletter containing the following statements: "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 April/May we will 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; 1t 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 February/March 1985 work was fairly scarce and she went home. 23. Mrs. Birt said of the situation in February/March 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. Legg'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. Legg's evidence that early on 5 March 1985 she was told by her supervisor that "there was not enough plain sewing" and that she "had to go on overlocking"; that was the first time 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. Legg's evidence that, when she was called in to the office, at about 4.15 p.m., Mrs. Sharrock sald: 24. ".e. 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 Cwas] 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 Ido... We have not got any work". At the time of her dismissal Mrs. Legg was handed a reference which read: 25. 5/3/85 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 1/2 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 (Mrs. Legg} 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 "pecause 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 during 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 provide 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 beginning of these reasons for judgment, both parties 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. Associate : LorwnyWw7. Date : \% Novetbur 4b.