Follow up FOI- contracts
28/06/23
Dear Keeley, (CASA FOI Office)
On 14/06/23 I submitted an FOI request to CASA regarding "contracts". (My reference Pprune #2675)
On 14/06/23 You responded seeking further clarification. (My reference Pprune #2676, CASA reference F23/21245)
On 20/06/23, I provided additional information. (My reference Pprune #2690)
On 23/06/23, You responded seeking further clarification. (My reference Pprune # 2702)
My response to that request for additional information follows. (My reference Pprune # 2720)
Thank you for the further follow up regarding my FOI request for "contracts."
Ironically, the issue that you are experiencing is exactly the very same issue that I experienced. for 8 months in my dealings with CASA, iI is indeed very "broad", to use your words. Where does one begin with such a "broad" requirement?
To be upfront with you.
I am fully satisfied that CASA personnel with significant power within CASA,chose to use that power inappropriately to bring harm to me personally, and that they were successful in achieving that objective. I do not believe that their actions and decisions were motivated by the safety of aviation.
In October 2018, , after I had been operating my flying school, in that same structure for over a decade, with no prior warning,CASA advised me that I was now suddenly operating unlawfully, and placed crippling trading restrictions on my business that cost well in excess of $10,000 per week, throughout the 8 months.
The crux of the matter in its entirety, was that a CASA employee had made a determination that ALL personnel operating under my AOC must also be my Employees, they could not be an Employee of another Entity. It was a preposterous assertion. That restriction has never been placed on any other Flight Training Organisation in this Country ever., That ludicrous position put forward by CASA has absolutely no legislative basis whatsoever, and it applied to my Organisation only.
Had all personnel operating under my AOC, also been my own Employees, the fact is that CASA would never have taken any action against me, and my business, and that is why this matter in its entirety is so preposterous.
However, CASA advised that if I could change the wording in my existing commercial contracts with the customers, to the satisfaction of a CASA Employee then the trading restrictions could potentially be lifted, I would have the trading restrictions lifted, and potentially return to Business as Usual, as it would become lawful again.
I believe that the entire "wording in the contract" issue was a complete farce. It was used by CASA to maintain the trading restrictions for a staggering 8 months. It is inexplicable that such a simple task could not be resolved.
The entire matter should have been totally and fully resolved in a matter of a few hours. It is outrageous that it was still unresolved after 8 months., with crippling trading restrictions in place throughout that time..The CASA Executive Manager of Legal, International and Regulatory Affairs, simply could not be satisfied, and until he was satisfied, the crippling trading restrictions were to remain in place.
In your correspondence you stated "I have been informed CASA retains a number of commercial contracts on file, operators will identify to CASA agreements and contracts for various flight operational matters, ie aircraft hire , aircraft lease, training and checking, conduct of flight training which I believe would all currently fall within scope of your current request."
I fully understand that, as I also had such agreements all CASA approved ,on those matters. Those documents are undoubtedly operational documents, and would be contained within the organisation's Exposition, as mine were. These are completely standard industry practice, and those are not the documents that I am seeking. There was never any suggestion from CASA that there were any deficiencies in this area.. Those contracts form part of the Exposition as they did in my own organisation.
This was an entirely different requirement. It was truly bizarre. The document that CASA were insisting on involvement in is the commercial agreement between APTA and its Members.
CASA was insisting on involvement in the wording of our existing "commercial" contracts, not the CASA Exposition/Operations Manual. Commercial contracts that would not normally attend to matters of operational control., and traditionally have no CASA involvement at all.
The matter was increasingly bizarre, because CASA insisted on wording in the commercial contracts, although CASA refused to be a signatory to those commercial contracts, despite insisting on wording that satisfied CASA. All other Parties were fully satisfied with the wording, and it had been checked by lawyers on multiple occasions.
The point being that the CASA Approved Exposition is where matters of operational control are outlined as that is the document between CASA and my organisation, not a commercial contract that CASA is not, and refuses to be a signatory to. Such matters are usually of a commercially sensitive nature, and not required to be disclosed to CASA.
CASA was never able to identify to me whose responsibilities I was to be attending to, or what those responsibilities were. It was as difficult a challenge for me as it is for you,so I do appreciate your difficult position.
The purpose of the request is to demonstrate that the requirements and associated trading restrictions placed on my business were unique and targeted at me personally
I need to be very clear on this. I am fully satisfied that CASA has never stipulated the requirements that were placed on me, on any other Operator. I do not believe that CASA will have these contracts on file, with the exception of the post July 2019 contract that they accepted between APTA and Latrobe Valley days after I exited the Business.
I have put substantial thought into how to frame this request, in order to bring clarity to the request, I am hopeful that this attends to it. It's a long sentence, but i just can't work out how to shorten it sorry.
Request One.
I am requesting that CASA provide me with contracts or the relevant content of contracts from within the flight training industry prior to October 2018, and since 1938 that demonstrates in those contracts'
the clauses which CASA had previously required, so as to demonstrate to the satisfaction of CASA,, that flying training certificate / approval holders, have the level of operational control required by the regulations, over personnel who are not employees of the certificate approval holder, which the level of control would not exist without those contracts
I do not believe that CASA will hold any such contracts.. This may be a futile search, but please advise me of the result.
Request Two
My operation was determined to be unlawful by CASA and CASA placed trading restrictions on my business that were to remain in place until I could satisfy CASA as to the wording of the commercial contracts. The trigger for this action by CASA was my application to add the Latrobe Valley Aero Club. as a Member.
The very day prior to my application, CASA by its own admission, had facilitated a long term and ongoing prior "arrangement" between another AOC Holder , and Latrobe Valley Aero Club, presumably with a "contract" as was required of me by CASA.
Then, after Latrobe Valley requests to transfer from the previous AOC holder to APTA in an identical arrangement, it is my business that gets determined to be illegal and has trading restrictions placed on it, until I can come up with wording in those commercial contracts to satisfy the CASA Employee.
My expectation is that CASA would have stipulated the same requirement on the previous AOC Holder delivering flight training through Latrobe Valley as they did on me. I was unable to resolve this issue in 8 months, therefore I would like to see what an Agreement looks like that did satisfy CASA, and that would be the Agreement that CASA required of the AOC Holder delivering flight training for Latrobe Valley the day prior to them transferring to me.
As with the requirement placed on me, I expect that they would demonstrate to the satisfaction of CASA,, that flying training certificate / approval holders, have the level of operational control required by the regulations, over personnel who are not employees of the certificate approval holder, which the level of control would not exist without those contracts
Please understand that I believe CASA has been deceptive in its dealing with the Ombudsman, and this document in fact was never required of the other Operator by CASA, and was in fact never required of ANY flight training operator ever. This may well be a futile search, as with request one.
Request Three
As in Request Two, I am requesting the contract that Ballarat Aero Club had in place with the AOC Holder until the day prior to them joining APTA. As in request Two, I do not believe that this document exists. As with the Latrobe Valley Aero Club, I am advised that no such contract was in place, and that CASA never placed any requirements on either Party.This was a new and unique requirement placed on me.
Request Four
With my 25 years experience in the flight training industry, I was unable to resolve the wording in the contracts to CASAs satisfaction for 8 months, and the trading restrictions remained in place.
After I exited the Business and two new individuals took over the business, with no flight training experience, they were able to immediately resolve the entire matter to CASAs full satisfaction for the operations of Latrobe Valley Aero Club.
The only thing that changed was the wording in that contract, and no doubt that attended to the shortcomings that I allegedly could not come up with over the previous 8 months and would have demonstrated to the satisfaction of CASA,, that flying training certificate / approval holders, have the level of operational control required by the regulations, over personnel who are not employees of the certificate approval holder, which the level of control would not exist without those contracts
This agreement was perhaps the first such agreement that CASA ever required or approved. In Australia to attend to This document does most certainly exist,and I am requiring a copy of that, as it will clearly identify what it was that I was unable to achieve in 8 months.
This document will clearly identify how the new CEO was able to demonstrate to the satisfaction of CASA,, that APTA now suddenly had the level of operational control required by the regulations, over personnel who are not employees of APTA, which the level of control would not exist without those contracts
Other contracts that were provided to the Ombudsman
The Commonwealth Ombudsman arrived at the following conclusion; “CASA has previously required evidence of contracts from other operators as evidence of operational control before it made this request of APTA.”.
I am fully satisfied that CASA has misled the Ombudsman on this matter. This was not about aircraft leasing or hiring agreements, this was a specific requirement placed on my business regarding the personnel who were not also my employees.
I am requesting I be provided with the same contracts that were provided to the Ombudsman as "evidence" of CASAs assertion that they had required contracts.
If the Ombudsman took CASA at their word," and did not request, and CASA did not provide any evidence , by way of contracts could you please advise me of such. If the ombudsman did request evidence of CASAs assertion could you please provide me with the same conatrcats that CASA provided to the Ombudsman.
Other contracts- CASA nominated
I would invite CASA to provide any other contracts that they feel may refute my allegation that CASA has never required contracts of any other operator in the flight training industry to stipulate requirements similar to those placed on me.
Those being the specific requirements that demonstrated to the satisfaction of CASA,, that flying training certificate / approval holders, have the level of operational control required by the regulations, over personnel who are not employees of the certificate approval holder, which the level of control would not exist without those contracts
Other considerations
I note that you had referred this matter to a CASA ``Business Unit", and they came back with this additional request, and I can see that there appears to be some confusion, as I had previously suggested. May I respectfully request that Mr Aleck, the decision maker in my matter, be involved in that "Business Unit "as he is the subject matter expert within CASA.. It was Mr Aleck that I was communicating with throughout the eight months. I did also have the opportunity to meet with him., and it was Mr Aleck that was not satisfied. It seems that the most efficient and effective process would be to establish contact directly with Mr Aleck, although I will leave that to your determination.
Please come back to me if I have not provided sufficient clarity to the request
Respectfully
Glen Buckley