Glen Buckley and Australian small business -V- CASA

[glenb]

PART FOUR

CONSIDERATION TEN-WHAT HAPPENED TO THE EXISTING MEMBERS

You will recall that CASA directed that all customers had to leave APTA, despite their clear preference to remain with APTA

APTA Simjet in Brisbane never commenced operations despite their significant investment in the Boeing 737 simulator, facility, and staff. In order for CASA to conduct their inspection and approval, everything had to be in place. Simjet achieved this, but CASA changed its mind on APTA during the induction process. An unnecessary loss of so much investment. This particular member bought so much capability to the group, particularly for the future growth of APTA and its Members attracting both International and Domestic students.

APTA Whitestar Aviation in Ballina had commenced operations under the CASA approved Temporary locations procedure that APTA utilized, but halted operations when CASA advised that the CASA approved Temporary locations procedure was now unlawful as per CASAs initial notification. I made multiple written requests to CASA to ascertain if we could reactivate this base, but CASA never answered. After waiting months for an answer from CASA, the base closed down, with the associated loss of investment. More on this particular matter can be found at Post #223 and Post #224 accessed here Glen Buckley and Australian small business -V- CASA - Page 12 - PPRuNe Forums

APTA Ballarat Aero Club resumed operations as a Part 141 Organisation, a significantly lower category of flying school than they previously had i.e. Part 142. They also lost their ability to operate as a Registered Training Organisation, and their approval to enroll international students. They departed APTA because CASA insisted that be so. CASA had determined that the operation was illegal, despite the Ombudsman’s findings twelve months later that the CASA position was not lawful. They have also lost significant business opportunities that would have been afforded to them under the APTA model. Like the other schools that continued on as a lower Part 141 Organisation, they now have access to a far smaller safety department, which is in fact an important consideration.

Similarly, the Latrobe Valley aero club ceased operations in its own right with another flying school now contracting flight training to the school. Similarly, they now operate on a reduced capacity without the higher Part 142 approval, inability to deliver the 150 hours integrated CPL course, deliver training to international students, or to operate as a Registered Training Organisation.

The APTA AVIA base and APTA ARC bases both expedited an application for a lower category Part 141 approval with the associated loss of capability that comes with being a Part 141 Organisation, and not having CRICOS, RTO, or 142 status.

I was directed by CASA to transfer my own flying school, Melbourne Flight Training to the new owners of APTA on the basis that sharing an AOC was not lawful. I was forced to transfer my staff and customers effectively closing down my flying school of 13 years. I was forced to transfer, my revenue but was left with all ongoing contractual obligations by way of leases etc, with no capacity to pay. Later the Ombudsman finds that in fact the practice was lawful, and therefore CASA actions were not lawful but by then my business was gone,

Learn to Fly was able to purchase a business that had a Part 142 approval, and that ensured that they could continue, and were probably the least affected.

The Owners of our APTA Vortex base purchased APTA at 5% of its agreed value, in order to ensure that they themselves did not cease operations, as they would have, and the business continues in a smaller scale model, operating as a single flying school, with the size of the structure and safety department significantly scaled-down.

The applications for new members that expressed interest in joining APTA were advised that CASA was still considering the matter. Understandably they lost confidence in the product, and my understanding is that both organizations also ceased operations.

In my fourth and final piece of correspondence to you on this matter, I will outline in significantly more detail the impact on a number of entities of CASAs action.


CONSIDERATION ELEVEN- THE OMBUDSMAN, APTA AND CASA DO NOT DISAGREE.

In CASAs initial notification dated 23rd October 2018, located at Post #44

CASA claims that “Paragraph 7 of the CASA Aviation Ruling Franchise AOC arrangement states; The AOC Holder at all times remains responsible for the actions of another person conducting operations under the AOC”.

A careful review of that sentence alone will lead the reader to believe other pilots operating under an AOC is permitted, but that the AOC Holder remains responsible for the actions of another person conducting operations under the AOC.

Let me put that in perspective. Irrespective of who operates under my AOC, I am responsible for that operation. If that pilot was paid by me, paid by someone else, or indeed even if he or she was a volunteer delivering flight training to the Scouts, I am fully responsible and accountable for that operation irrespective of who pays the pilot, and even if the pilot isn’t getting paid and isn’t an employee.

I have absolutely no disagreement and after 25 years in the Industry, fully appreciate the responsibility that comes with that statement. On this matter, there is no dispute. In fact, that was the underpinning guiding principle in the design of APTA. I fully understand and concur with that statement. CASA is reaffirming a statement that I would be fully aware and was aware of.

In that initial notification, however, two employees of CASA, most probably Mr. Aleck, CASAs Executive Manager of Legal, International, and Regulatory Services, and Mr Crawford, CASAs Executive Manager have applied their opinion, and importantly it is only their opinion, as the letter goes on to state; “The Ruling does not permit an AOC Holder to authorize a third party body corporate to operate under its AOC”. That is a vastly different statement to what the Aviation Ruling actually says i.e. “The AOC Holder at all times remains responsible for the actions of another person conducting operations under the AOC”.

Whilst I respect these two mens interpretation, I feel it is a “long bow to draw” to arrive at that interpretation from the previous statement extracted from the Aviation Ruling. This is not an insignificant point. More so considering that was CASAs entire basis for closing down my business. Any business is entitled to operate in an environment that is more secure than

This point becomes especially critical when it is considered that CASAs core function in the Civil Aviation Act is to provide “clear and concise aviation safety standards”. The reference to this obligation can be found in the Civil Aviation Act at 9. CASA functions”. As a business owner, I have a fair and reasonable expectation that CASA should be able to direct me to clear and concise aviation safety standards that support CASAs position. I refer you to the Civil Aviation Act.

“9 CASA’s functions

(1) CASA has the function of conducting the safety regulation of the following, in accordance with this Act and the regulations:

(a) civil air operations in Australian territory;

(b) the operation of Australian aircraft outside Australian territory;

(ba) ANZA activities in New Zealand authorised by Australian AOCs with ANZA privileges;

by means that include the following:

(c) developing and promulgating appropriate, clear and concise aviation safety standards;

(d) developing effective enforcement strategies to secure compliance with aviation safety standards;

(da) administering Part IV (about drug and alcohol management plans and testing);

(e) issuing certificates, licences, registrations and permits;

(f) conducting comprehensive aviation industry surveillance, including assessment of safety‑related decisions taken by industry management at all levels for their impact on aviation safety;

(g) conducting regular reviews of the system of civil aviation safety in order to monitor the safety performance of the aviation industry, to identify safety‑related trends and risk factors and to promote the development and improvement of the system;

(h) conducting regular and timely assessment of international safety developments.”



CONSIDERATION TWELVE-THERE WAS ONLY ONE AOC/AUTHORISATION

Now consider what the Ombudsman found in Phase one of his investigation, which was a stark contrast to CASAs position initially. The Ombudsman finds; “As of October 2016, no Australian legislation prohibited franchising of an AOC..”. This is perhaps one of the most significant points. CASA maintained that it was prohibited.

In CASAs original notification dated 23rd October 2018, also stated; “Section 27(8) of the Civil Aviation Act 1988 states that an AOC is not transferrable.” On that point I also fully agree with CASA, an AOC cannot be transferred.

There was no attempt to transfer the AOC by APTA at any stage. There was only one AOC and I was the Authorisation Holder. I held accountability and responsibility for ALL operations conducted by all pilots under my AOC. It was essential that I had high levels of control to secure my “peace of mind” that I had full operational control over all operations conducted under my AOC. I had been in the flight training industry as an Instructor, Head of operations, and a business owner operating a flying school for 25 years. It would be reasonable to expect me to have an expert knowledge on my obligations, and perhaps more than many of the CASA personnel with who I was dealing with. None of them with any experience in flight training at all.

All pilots and all operations actually came “inwards towards the authorization holder and were required to operate in accordance with our procedures. There could be no confusion as there was only one AOC, and that was APTAs. The Members of APTA did not hold an AOC and were obviously fully aware that they did not have an AOC, so they could not operate their own flying school.

It was not feasible that a pilot could operate to any other procedures than APTAs CASA approved because there was no other AOC approved, or any other procedures. i.e. all pilots operated under APTAs AOC, or they simply could not operate, as there was no other option.

The Members did not hold their own AOC, or CASA required Key Personnel i.e. CEO, Head of Operations, and Safety Manager. Therefore, they could not deliver flight training in their own right. They effectively had nothing to hand over, as they were not a CASA-approved flight training organization, and that is in fact the reason for joining APTA.

To significantly simplify it, it is just one big flying school in all areas that CASA has control over. i.e. safety and compliance. The business matters of the entities i.e. what electrictity provider to select, to paint the walls in white or blue etc remained with the Member, or indeed who paid the pilot, but traditionally these were not matters that CASA involved itself in.

If it was a matter that was accountable to CASA, it was the Authorisation Holders responsibility.i.e, APTA



CONSIDERATION THIRTEEN-HOW COULD THE TEMPORARY PROCEDURES PROCEDURE THAT CASA SUGGESTED AND PROVIDED TO ME, NOW BE CLAASSIFIED AS ILLEGAL.

I refer again to the initial notification dated October 23rd, 2018, and specifically the last paragraph of that correspondence where it deals with “Temporary Locations”

That is in fact the exact procedure that CASA suggested I utilize, and the basic procedure comes from CASAs own guidance material for flying schools. I incorporated CASAs' suggestion into my manuals. The procedure was approved by the CASAs legal department. We had used the procedure over the previous twelve months and CASA had approved bases under it. CASA had also conducted a Level One audit of the organization and that specific procedure and raised no concerns whatsoever. Irrespective of all that it, is the procedure that CASA suggested we use for the exact purpose that they approved it to be used for. How could CASA possibly apply a complete reversal of their own approval that they recommend, approved, utilized, and audited?
CASA actually reference that very procedure in their own guidance material specifically for flying schools, which refutes CASAs assertion that Temporary locations are not intended for flying schools, which was a line of argument used by CASA at one stage. They are actually ONLY intended for flying schools. Once I directed CASA to their own guidance material, they appeared somewhat awkward, but by then the correspondence of October 2018 had already been sent by CASA.

This is ludicrous, I use the CASA procedure as suggested by CASA personnel, from their own guidance material land 18 months later, CASA applies a complete reversal, and refuse proposed applications, and reverse previously approved bases that utilised that very same procedure. Surely CASA must have some duty of care. Its akin to a police officer telling you the speed limit is 110Kph, and then booking you for speeding at the end of the road. It simply cannot be justified.

Then this became an unauthorized activity where I am potentially liable for litigation from CASA and/or the businesses that have depended on me to deliver on my commitments to them under APTA which is fully approved by CASA.

This is a significant point, and I would direct you to the following posts on Prune that provide more information. Post #46 and Post #223 Glen Buckley and Australian small business -V- CASA - Page 3 - PPRuNe Forums