Glen Buckley and Australian small business -V- CASA

[glenb]

PART THREE

CONSIDERATION SEVEN-OPERATIONAL CONTROL

In your correspondence, you stated: “This is because CASA appears to have had a reasonable basis for being concerned that APTA lacked sufficient operational control over the other entities that were reportedly operating under APTA’s approvals and authorizations”, and “it had good reason to be concerned about the operations of APTA and its members”.

I absolutely refute CASAs assertions to you on this matter, and ask why would CASA have a “reasonable basis for any concerns?”, or “good reason”. That statement cannot be permitted to go unchallenged.

CASA can provide no supporting evidence, to support “reasonable basis” or “good reason”. Surely if CASA is to close down a business, there must be some burden of proof on CASA to demonstrate that APTA was unsafe or breached regulations. Some evidence, anything at all must be put forward.

Consider the CASA terminology, “satisfied”. As you will appreciate it’s a very broad statement, and particularly so in an environment where CASA is obligated in the Civil Aviation Act to provide “clear and concise aviation safety standards”. There can be no doubt that CASA placed far far higher standards of “satisfaction” on APTA than it did to other operators. Was that well intentioned, and lawful? Very clearly, I feel not.

The very first inclination that I had that CASA had any concerns at all was the notification that CASA was to shut down my business in October 2018. That initial notification claimed that the structure of APTA was unlawful, 18 months later the Ombudsman found that it was not. CASAs hand has been forced, and they must now pursue a “lack of operational control” as their basis. It is predictable.

If CASA had a reasonable basis for being concerned that APTA lacked sufficient operational control, it is reasonable that CASA should have bought those concerns to my attention, and provided me the opportunity to rectify any deficiencies. That would in fact be my rights under procedural fairness.

No concerns at all were ever raised by CASA, with me in any way whatsoever about operational control. Surely there would be some correspondence raising concerns at some stage and most particularly at the audit stage. Surely there would be a safety concern, an email, something, anything at all.

How was there a “reasonable basis”. I fact I would strongly contend that in fact, CASA had absolutely no reason at all to have concerns about operational control, and perhaps should have been directing their limited resources elsewhere, to other organisations that perhaps had widely known safety concerns, rather than APTA, which I will address later.

If CASA want to support their actions based on satisfying themselves about operational control. Only 18 months earlier, I completed a two year Project with 10 CASA personnel, who were allocated by CASA as CASA Subject Matter Experts to design APTA, leading to its Approval to continue doing what it was already doing for the previous decade, only much better. CASA came back 6 months later after fully approving the APTA structure and conducted a Level 1 audit of APTA. If they were satisfied with operational control, less than 12 months earlier, at the audit, what was it that gave CASA concerns about operational control, in the next 12 months. Why didn’t my CASA Certificate management Team (CMT 3) being my CASA oversighting team that I am in daily contact with, alert me to any concerns.

The truth is that APTA offered unparalleled levels of operational control, and any comparative analysis will demonstrate that. We have by now firmly ascertained that in fact CASA did permit operations that were identical to mine to operate. The only difference between my structure and others is that my system was designed with CASA for that specific purpose. CASAs actions simply cannot be supported.

Once it is has been ascertained that in fact, CASA had always approved multiple flying schools to operate under a single AOC, it allows a comparative assessment. If the Ombudsman's Office was to ask CASA to produce the operations manuals for the Organisation that provided AOC coverage for Latrobe Valley Aero Club prior to APTA and compared them with APTAs procedures you will find a significant difference. I would strongly assert that the difference will be measurable. That is not a direct indictment on the AOC provider that provided the service previously. That was a Charter Company based in Regional Victoria, operating the flying school at a remote base away from their Head Office. This is a challenging position for an operator due to the difficulties of oversighting a remote base using systems that were not specifically designed to do that, yet were fully CASA approved and audited so obviously exceeded CASAs minimum standards. For clarity, that Operator does however have an impeccable industry reputation.

I am reluctant to draw other Organisations into this matter. Although, I feel it is somewhat essential at this point in time. One of the Companies has now ceased operations so feel I can make comment on it. Previously I have refrained to ensure fair processes prevailed for that organisation.

In CASAs Southern Region let's consider three organisations that were aiming to deliver significantly larger volumes of flight training and came under the control of CASAs Southern Region. The point of this is CASAs' real intent when they call on “operational control”. Two of these Organisations B and C were delivering approximately 150,000 hours flight training per annum, as opposed to APTA (Organisation A) which was delivering less than 15,000 hours across all bases. APTA had a Key Personnel structure as required by CASA that was larger than either Company B or C. This was done to ensure high levels of redundancy and operational control could be maintained.

· Organisation A is APTA, an organisation built and designed with CASA to deliver up to 150,000 hours of flight training per annum. At the time of CASA taking its action, the systems and procedures designed to accommodate 150,000 were delivering less than 10% of that volume. It is unlikely that high levels of operational control were not occurring. All resourcing was in place to cater for significant growth. All APTA procedures were designed drawing on military structures of accountability and reporting. The entire system was designed to be scalable. In fact the system that the Australian Defence Force (ADF)has now adopted, is the most similar analogy that I can make. Im also advised that APTA structures were a consideration in the design of that ADF system.



· Organisation B is a large foreign-owned organisation. At the time it was delivering somewhere in the vicinity of 150,000 hours of flight training per annum, predominantly to a number of International Airlines via cadetships. The Company is regarded in the industry as well intentioned, professionally managed, and provides an industry benchmark standard in almost everything it does.



· Organisation C was a relatively new Organisation with a big vision. Similarly, to Organisation B, they were delivering volumes of flight training of approximately 150,000 hours per annum, or more than ten times the volumes APTA was delivering at the time. There can be no dispute that many within the industry had raised concerns with CASA about this operator over many years. This organisation appeared to have a disproportionate amount of aircraft accidents, which potentially supported the allegations being made against them by many within the industry. CASA audits clearly indicate that CASA had concerns about this organisation and specifically relating to operational control. Importantly no independent findings have been made, so these are assertions only. This organisation has a class action against it, by the students and has recently ceased operations. The case will be very much about the levels of operational control. Importantly, with this matter, it was not CASA that initiated the action but a group of students coming together because they felt CASA had failed them.



Of the 350 flight training organisations in Australia, I really must question why APTA was identified for special treatment, yet Company C continues to be permitted to operate by CASA.

Consider Organisation B above, who also operate multiple bases. Call on CASA to provide manuals for that organisation. Compare their systems and procures to mine. Were my CASA approved procedures so deficient to Operator Bs? So much so, that CASA shut the business down. Consider also that Operator delivers 10 times the volume of flight training that APTA does yet had a smaller management team of CASA Key Personnel.

Alternatively the Ombudsman’s office could now compare incident reports, accident reports, continuous improvement submissions, systems, procedures etc. An enormous number of resources now become available to ascertain whether CASAs concern about operational control had a valid basis.

Recall that CASA has not alleged that we breached any procedures in our CASA approved procedures, so the reasonable assumption is that we fully adhered to all CASA approved procedures, as we did. If that is not the case, I would call on CASA to clarify that. These were the very procedures that CASA fully approved 18 months earlier, to do exactly what we were already doing, and adhering to. The only thing that changed was CASAs requirements and opinion.

Previously when flying schools operated under a shared AOC, there may have been a lack of standardization between the two organizations. APTA was the first time in Australia that CASA had worked with a Company to attend to the deficiencies in the previously accepted CASA practice, and fully designed a system based on CASAs own requirements, approved it and audited it. This was a very significant investment for an Australian flight training business, and I am fully satisfied that it provided industry-leading levels of operational control, and safety. I relish the opportunity to have that tested.

APTA's systems and procedures were designed side by side with 10 CASA personnel as I attended to over 600 of their requirements, over a two year period. APTA was engineered from the onset to provide far higher levels of operational control than was the CASA accepted standard. The Approval process had been completed over two years previously with the revalidation of Part 141/142 being approved in early 2018. We had fully satisfied CASA with all of our procedures at that stage. We were doing exactly as we were approved to do, and following all CASA approved procedures. It is incumbent on CASA to identify what aspects of our approved procedures raised concerns for CASA and why weren’t they raised at any time prior, and most especially if the concerns were so significant that CASA had to bypass any sort of consultative approaches such as a telephone call or a meeting.

There are many arguments to counter CASAs assertion, but the fundamental point must be that CASA identifies any regulatory breaches, or any safety concerns any evidence of a lack of operational control, and that should have been provided at the time, or indeed even now.

Evidence will clearly support that APTA in fact offered unparalleled levels of operational control. The APTA members that had previously operated under someone else's AOC will testify that in their experience this is the case. Please advise if you would like me to supply correspondence from those Members.

I have been contacted by an ex-CASA employee and a senior member of the defence force and advised that my system is remarkably similar to the system that the Australian defence force has adopted and that APTA procedures were considered and many adopted in the system that the Airforce now uses. I am able to obtain correspondence from those personnel supporting that contention.

Similarly, I have been contacted by 2 ex-CASA personnel two that had involvement in the design and approval of APTA. They have offered to provide correspondence offering their perspective if required, and CASA legal maintains that they were not aware.

Surely CASA has some level of a duty of care. If I have been operating with multiple bases over the previous decade, and then undergo a revalidation process with 10 CASA personnel, to obtain a revalidation and then CASA add bases using our procedures, it is highly unlikely that CASA legal was not aware.

CASA cannot possibly be permitted to close down multiple businesses on concerns of the level of operational control if they cannot provide any supporting evidence. It is a significant allegation to make and should be able to be supported with some evidence.


If CASA requires testimony from a flying school owner, I can provide it. You will recall that I owned Melbourne Flight Training, one of the members of APTA. I had operated my school both outside of APTA and within APTA. In the new system where my flying school operated under APTA, there were far higher levels of operational control. If the Ombudsman requires, I will obtain testimony to that effect from the schools that operated under APTA. Most have already extended the offer to me, and I have no doubt that all will be more than willing to provide a reference or testimony to that effect if asked. In fact, at Post #75 you will find a post by a customer that operated at an organization both before and after APTA, that post suggests a high level of operational control and intent. Other pertinent posts are Post #66 and Post #424. The venture was well resourced and well-intentioned, and the truth is that any comparative analysis of APTAs procedures against other operators will support that fact.

Post #66 Glen Buckley and Australian small business -V- CASA - Page 4 - PPRuNe Forums

Post #75 Glen Buckley and Australian small business -V- CASA - Page 4 - PPRuNe Forums


The very concept of APTA actually increases operational control. Consider when I operated my flying school outside of APTA. I constantly had to juggle the priorities of safety V compliance V commercial return. For example, an operator could be tempted to let an aircraft fly with a minor instrument unserviceable. The balance between safety and commercial return, Do I send the plane out on a local flight in good weather with the minor unserviceability to get the $400 for the 1-hour flight. Or do I ground the aircraft for two days, depriving it of 10 hours of revenue, disrupt my customers' bookings, and have staff idle. When I had MFT, it was a tough decision.

Under APTA, I had no option, quite simply the systems and procedures would not permit that flight to proceed. It worked well from a safety and compliance perspective because APTA looked after the CASA considerations i.e. safety and compliance. That flight would not proceed. APTA was under no commercial pressure in its decision making.

One final point that I would like to add. Consider that for a decade the Company had been a Registered Training Organisation under the oversight of the Australian Skills Qualification Authority (ASQA). This organisation conducted audits of our business. They were fully satisfied with our levels of operational control, and we held an audit history with ASQA that could only be described as exceptional. I am able to provide those audit results if required.

Similarly, the Company had delivered training to many International Students over the previous decade. As a CRICOS approved provider able to deliver training to International Students, we were subject to additional auditing. All training for all international students was conducted under our full operational control and delivered to the highest standards. No complaints by any international student was ever raised against my business, which is something I am particularly proud of and is unusual in this industry. It is unlikely that my business did not maintain the very highest levels of operational control.

I would call on CASA to support their allegations by providing three scenarios. If CASA could present three scenarios that they had concerns about, and I would welcome the opportunity to explain how APTA had CASA approved procedures in place to consistently demonstrate the highest levels of operational control.

I believe that CASA had unparalleled opportunities to satisfy themselves about operational control. In fact, I would suggest that APTA was the most transparent aviation business operating in Australia. For the first time, we had given CASA 24/7 internet access from any location to access our entire system including, all training records, aircraft unservicaebilities, predictive maintenance, Safety Meeting minutes, Management Meeting minutes, risk assessments, syllabi, flight and duty records etc. This was an Australian first, and that alone should have satisfied CASA that we had the very highest levels of operational control. Quite simply, I would not have given CASA full access if I wasn’t fully confident in the systems.

By having 24/7 access, it provided CASA with the opportunity to instantly identify any deficiencies and approach me in a timely manner, rather than waiting two years for a CASA audit.

In contrast to CASAs assertion, I do not believe that CASA had any valid basis to have “good reason to be concerned about the operations of APTA and its members”.

If CASA contends that APTA did not provide sufficient operational control, are they able to specifically identify what led them to that assumption i.e. any specifics to support their contention, and especially considering that the Level 1 audit lasting over one week with a team of CASA personnel identified no deficiencies that were bought to the Organisations attention?

For clarity, can CASA provide any examples or scenarios where operational control could be “compromised”, and may I be provided with the opportunity to respond?



CONSIDERATION EIGHT- CASA ONTEND THAT THEY OBTAINED INDEPENDENT LEGAL ADVICE

CASA contend that they “obtained independent legal advice that suggested CASA had good reason to be concerned about the operations of APTA and its Members.”

That statement conflicts with statements made to me by the previous CASA Executive Manager of Regulatory Services and Surveillance (Mr. Craig Martins predecessor). He advised that CASA was yet to receive legal advice and that they would share that legal advice with me once CASA received it.

On the day it was scheduled to arrive, I was advised that the lawyer's wife had a baby and that there would be a delay. I am not fully satisfied that CASA did in fact receive external and independent legal advice until much later, and if CASA received such independent legal advice that indicated, “CASA had good reason to be concerned about the operations of APTA and its Members,” I should be entitled to see that legal advice and be able to defend my position against that legal advice.

For clarity, if the independent legal advice advised that there was “good reason to be concerned about the operations of APTA”, then I ask. What information was provided to the legal firm to arrive at that deduction if there were no safety concerns or identified regulatory breaches? How could an external legal firm possibly identify that there were good reasons to be concerned about APTA, if no concerns had been raised, and there were no regulatory breaches. It is simply absurd. I have to question the legitimacy of any independent legal advice that was obtained.

If CASA did obtain that independent legal advice, what was the date that the advice was sought and received? i.e. was it advice received prior to CASA initiating their action or was it advice received much later, and potentially as part of damage control, or repositioning by CASA?

I am confident that if CASA were asked to provide a copy of that legal advice it would prove very revealing. My feeling is that the legal advice was either never received, or obtained very late in the process, or in fact, did not support CASAs case, and therefore was never produced to me, despite the undertaken given to me by CASA, hence the lawyers' wife having a baby.

Irrespective, the question remains, on what information did the independent legal firm depend on to arrive at its advice? Am I entitled to ask CASA to produce or at least summarise the advice that they presented, so that I can challenge it if required? Surely, I must have that right. How can I ascertain if the information CASA provided was accurate, truthful, and well-intentioned?

I am concerned that I am dealing with the opinion of only CASA employees, Mr. Aleck and Mr Crawford, therefore I would ask that CASA share the legal advice that they received. That way the Ombudsman can be satisfied as to the content of external legal advice as opposed to Mr. Aleck's and Crawford’s opinion and ascertain the basis for the independent legal advice that indicated CASA had good reason to be concerned about the operation of APTA and its members. It may be that the CASA Executive Manager of Legal, International and Regulatory Services is not motivated by aviation safety in his decision making, or applying significantly higher standards on me, and my organisation that are not valid.


At this stage I would like to draw your attention to Pprune posts #1497 and 1498, accessed via here. They contain two of my very first pieces of correspondence to CASA and included Mr Shane Carmody. They provide a good insight into the situation I was confronted with. Glen Buckley and Australian small business -V- CASA - Page 75 - PPRuNe Forums

CONSIDERATION NINE- THE COMMERCIAL DETRIMENT AND CASAs ENFORCEMENT MANUAL PROCEDURES.

Had CASA followed the stipulated procedures in CASAs own Enforcement Manual which can be accessed here Enforcement manual | Civil Aviation Safety Authority (casa.gov.au), there would in fact potentially have been a completely different outcome. If CASA is to Cancel, Suspend or Vary an AOC they have obligations under administrative law/natural justice and procedural fairness to comply with their own procedures. It is essential to understand that immediately on receipt of that notification on its impact on me and my business was catastrophic. Those actions and decisions by a small and select group of Senior CASA Executive did result in significant damage to a number of people.

It is imperative to understand that CASA proceeded on the basis that after more than a decade, it had overnight, determined that my structure was illegal. CASA did contact all my customers, including my own flying school, and force them to leave APTA. That obviously led to the failure of the business. That was not the customers' preference, and they will attest to that. They were forced to leave the business by CASA. A significant investment in safety and compliance had now been lost.

Phase One of the Ombudsman’s Findings now indicate that CASAs actions were not lawful.

With absolutely no prior warning at all, not even the opportunity of a telephone call or a meeting to raise any concerns or try and resolve the issue prior, CASA send that notice on October 23rd, 2018.

Consider also that APTA is a Registered Training Organisation delivering an Advanced Diploma in Aviation over an 18-month period. It needs more than “interim” CASA approvals of only days or weeks. APTA and its members need to have surety of operations, in order to enrol students. The minute that notice was issued by CASA, it became unethical and most likely illegal as an RTO to enrol students in a course that you may foreseeably not be able to deliver. Very few businesses in Australia dependent on an ongoing relationship with their customer could survive with interim approvals and most especially an education provider.
Importantly CASA did write to all my customers advising that the operation was not lawful and they were then forced by CASA to leave APTA. The customers were given no option. The leadup to that action by CASA is important and I will outline it here.

Immediately on the issue of that notice of October 2018, CASA effectively shut down my business, and the truth is that they did shut down my business.

CASA directed the Members that they were not permitted to join APTA. Some businesses were forced into closure, while others exited APTA and continued on their own as a Part 141 school, and accepted the reduced capability, smaller safety department, etc

Consider the many employees that I have depending on me for their livelihood. They are now employed by an Organisation that CASA is seeking to close. The security of their livelihoods is now very much in question. CASA has strongly suggested that all currently operating bases will be closed in as little as 7 days. These personnel understandably begin seeking alternative Employers. The impact of that alone on an Organisational culture is devastating and cannot possibly enhance safer outcomes, irrespective of the accompanying commercial impact.

Consider the hundreds of students that are halfway through an 18-month course of flight training. There Registered Training Organisation (RTO) appears likely to close at short notice, and most definitely before completion of their course. The perception amongst clients is that the Organisation must have grossly breached regulations or CASA must have grave safety concerns if it is likely CASA will shut down the entire operation in as little as 7 days. Customers understandably seek to transfer to other organizations. The reputational damage to the business is devastating, as word spreads quickly in the industry.

Consider the instability caused to the Bases that CASA has already approved and are most likely about to have their approvals reversed. As there is only one approval, their continuity of operations is uncertain past 7 days. Some of these aeroclubs have been operating for 100 years, and are irreplaceable in rural areas, as they face closure.

Consider the immediate effect that this notification has on the flying school's ability to recruit students. It now becomes impossible to recruit students to an 18-month training course, when the organization has only 7 days surety of operations, and the word is now on the street that CASA is seeking to shut down the Organisation. Obtaining new revenue becomes impossible.

Consider the impact that this has on APTA. I had fixed operating costs in excess of $1,000,000 per annum or $20,000 per week. No flying school is going to consider joining APTA when CASA has reversed its approval on the business overnight. Existing customers understandably will exit the Organisation and accept the lower category Part 141 approval, and just have to accept the reduced capability that comes with that lower approval.

The APTA product was a method to increase safety, and regulatory compliance, and provide security into the future. By CASA notifying my customers almost immediately that they are operating illegally, it destroys any confidence in the APTA product, and as customers are forced to leave by CASA impacts on revenue and cash flow

It damages my reputation because, with the best of intent, I have been representing APTA as designed in conjunction with CASA and fully approved by CASA. It was, but that changed overnight on October 23rd October 2018.

Consider that this went on for an unacceptable 8 months. My access to revenue was completely denied, yet I had fixed costs of approximately $20,000 per week with approximately half of that being salaries if I were to avoid redundancies. The CASA action doomed the business to failure.

Quite simply a more reasonable course of action in the circumstances would have been to arrange a meeting prior to imposing restrictions on the business and give me the opportunity to meet any stipulated CASA requirements and avoid a less desirable outcome, such as has occurred. If CASA followed their own Regulatory Philosophy this would not have happened.