Rumour: Sunstate Engineers suspended over aircraft sabotage?

[Phalanger]

The court judgement has been posted. Few important notes:

• Executing the task under the law was not a protected workplace right as the CA laws are between the employee and the aircraft not the employee and employer.
• The judge considered if the minister made any indications of an intention to cover this area but it could not be found in any readings to parliament or earlier workplace laws.
• However the judge did not like the case hanging on a single technical aspect of law meaning the case was not dismissed at this stage. Instead they also considered adverse action under the general protections considering the nexus of the actions taken.
• Considering this the judge factored in the actions of the parties, the CA laws and the impact on the aircraft.

Bellow is the main issues the judge brought up:

1. It is not certain on the evidence as to precisely when after the start of September 2010 knowledge of the cockpit door issue came to the knowledge of each of the LAME employees. What is certain is that Mr Pengelly was aware of it by 16 October 2010 when he came to complete the QL3 describing this phenomenon. He said that he discovered it by leaning on the toilet wall of the aircraft and noticing that the cockpit door opened. By then Captain Schryver and later Captain Reitano had each submitted an SOR in respect of this same phenomenon and, as I have observed, remedial action was in train. In these circumstances, it is a most unlikely coincidence that Mr Pengelly chanced to discover this same phenomenon on 16 October 2010. Also to be taken into account in weighing up whether Mr Pengelly discovered the phenomenon by chance is the evidence, including that of Mr Pengelly himself, that licensed aircraft maintenance engineers routinely talk amongst themselves in the workplace about topical maintenance issues. I consider it inherently likely that skilled tradesmen rostered together would do this. When he was asked on 20 October 2010 by a Mr Rose about why the cockpit door locks had been inspected Mr Kuhanez mentioned that pilots had raised the issue and that Sunstate had not done anything about it. There was also evidence that licensed aircraft maintenance engineers rostered on a particular shift caught a bus from the maintenance facility together at the end of a shift. It was Mr Posavac who “closed off” on 17 October 2010 the QL3 prepared by Mr Pengelly in respect of the cockpit door issue on 16 October. Moreover and tellingly, when Mr Posavac “closed off” this particular QL3 he did so by fitting shims to the cockpit door striker plate in accordance with the AutoAvia designed Engineering Order requirements. In other words, Mr Posavac must well have known no later than 17 October 2010 not only of the phenomenon as to how the cockpit door might be opened but also that there was already in place a QantasLink initiated, fully approved modification to address this issue. Mr Kuhanez reported a like issue on 18 October 2010. He did this after he was told by Mr Posavac that he had repaired just such an issue the previous day.
2. On 17 October Messrs Pengelly and Fuller were rostered on and worked the day shift while Messrs Kuhanez, Posavac and Etherton were rostered on and worked the evening shift (which finished at midnight). In his initial affidavit, Mr Fuller stated that Mr Pengelly had demonstrated to him how the locked cockpit door on the Dash 8 could be opened by flexing the adjacent (toilet) wall. That Mr Pengelly had such knowledge by then accords with his having completed the QL3 on that subject the previous day. Mr Fuller also stated in his initial affidavit that Mr Pengelly had also demonstrated to him how the cockpit door lock could be opened by pushing a key into the lock and levering it open. In his later affidavit filed in June 2011 in this proceeding Mr Fuller stated that Mr Pengelly only came to show him how to open the lock in this way on 20 or 21 October, ie after the night of 19 October 2010. He retracted this in his oral evidence. Mr Fuller’s first and more contemporaneous account is inherently the more likely.
3. Of the LAME employees, it is more likely than not that Mr Pengelly, Mr Posavac, Mr Kuhanez and Mr Fuller were each aware of the cockpit door phenomenon prior to 19 October 2010. They did not just chance upon the issue on the evening of 19 October 2010 and thereby, so it was submitted on behalf of the ALAEA, then and there become duty bound to report the same as a defect on a QL3. Further, notwithstanding that there was an obvious widespread knowledge about the cockpit door issue and the cockpit door lock issue by 18 October 2010 there had been no concerted action amongst the LAME employees or any of them to address the same with their supervisors on their initiative by that time. This was so notwithstanding, for example, Mr Fuller’s statement that a licensed aircraft maintenance engineer in possession of such knowledge and not acting on it would be in breach of his duty as a member of that trade.

So the judge does not like that they were sitting on the issue. If it was a concern they should have exercised it straight away. By not acting Logan considered this a breach in itself.

1. A notable feature of Mr Etherton’s oral evidence was that his demonstration of how he did this differed from his earlier indication as to the entry point Mr Posavac had showed him. Mr Etherton also stated that he found he was able to open the cockpit door by pressing against the toilet door frame. In the course of the QantasLink investigation which followed 19 October 2010 events Mr Etherton stated that, once these issues were discovered, discussion took place amongst some of the licensed maintenance engineers on that shift about their being insufficient time left during the shift to fit shims so as to address the toilet door flexing. On this version of events, this indicates an awareness then of the existence of an approved resolution method as specified in the Engineering Order. Yet when asked in evidence as to what research, if any, was undertaken in relation to the QL3 which he completed that evening he stated that, “time constraints prevented me doing any research into the issue”. This was, to say the least, odd as the very man who asked him to go to aircraft VH-TQM and whom he said had conducted a demonstration there, Mr Posavac was the same man who had, as I have already noted, earlier adopted that approved method to close off an earlier QL3 in respect of aircraft VH-QOD on 17 October 2010. Further, in his first affidavit, Mr Etherton stated that he had assisted Mr Posavac in that task on 17 October 2010. All in all, I did not find Mr Etherton a reliable historian. What is certain, based on the contemporaneous documentation, is that he did complete a QL3 on the evening of 19 October 2010. Further, it is more likely than not that, in so doing, he was well aware before 19 October of the existence not only of a door flexing issue but also that how to resolve the same had already been settled. I also doubt that the potential for the door lock to be opened by insertion and manipulation was a revelation to him that evening.
2. As to Mr Baldock, the evidence that he gave in his first affidavit was that, in the course of the evening shift on 19 October 2010, Messrs Pengelly and Kuhanez had had a discussion with him during which Mr Pengelly told him that he had by chance discovered a problem with the Dash 8 cockpit door when he accidently lent against the toilet door wall and found that the cockpit door popped open. Mr Baldock stated that he considered this to be a serious problem because the cockpit door area of the QL3 was supposed to be able to resist forcible entry as well as gunfire and shrapnel. According to him, he, Mr Pengelly and Mr Kuhanez agreed together to look out for this problem on other Dash 8 aircraft. It was for this reason, so he stated, that, during an internal inspection of aircraft VH-QOF, he decided to examine the cockpit door and its lock. It is noteworthy, as to the lock, that Mr Baldock’s account as to what he had been told of the problem by Mr Pengelly did not include his being given any detail as to how the lock itself might be manipulated. Rather, he said that when testing the cockpit door for vulnerability to opening by the flexing of the toilet wall he noticed that the internal of the lock mechanism was visible and that this prompted him to investigate it further.
3. In contrast, in Mr Baldock’s second affidavit and in the course of his oral evidence he stated that he was informed by Mr Kuhanez that he (Kuhanez) had the previous evening (18 October 2010) found a defect with the door lock on VH-QOD. Yet in his first affidavit and for that matter in his response to a question in the course of the post-event QantasLink investigation, he made no reference to Mr Kuhanez as the source of his information as to vulnerability in the lock itself. In his second affidavit Mr Baldock stated that he only filled out the QL3 that evening after already having reported what he discovered to the shift supervisor Mr Blanch who told him to report the defects he had seen. He also stated that, before so doing, he had discussed the defects with Mr Pengelly. The differences in the accounts which he gave at various times made me regard Mr Baldock as an unreliable historian.
4. On the whole of the evidence, it seems to me much more likely than not that the LAME employees set out as a group to cause maximum disruption to Sunstate on the evening of 19 October 2010 by a concerted reporting of phenomena already by then well known to each of them. I also doubt that it was a coincidence that the QL3 in respect of these phenomena were lodged late in the shift that evening, as late in the case as two of them as just minutes prior to the close of the shift. Indeed, it seems inherently likely that Mr Kuhanez lodgement at 23:23 on Monday, 18 October 2010 of a defect entry in a QL3 in respect of Dash 8 aircraft, registration number VH-QOD, but then newly modified, was something of a rehearsal for the concerted action which followed the next evening.
5. The unreliability of the accounts given by the LAME employees was in marked contrast to the account given by Mr Lidbury both as to the actions which were taken within QantasLink following the evening of 19 October 2010 and as to why he had come to make particular decisions in respect of those particular employees.

So basically the judge did not believe their actions were reasonable in carrying out their duties but of a different nature.

Logan wraps it up simply as follows:

1. In his business role, Mr Lidbury formally reported to Mr Kumar but the reporting truly was formal. So far as the decisions taken by Sunstate in respect of the LAME employees were concerned Mr Lidbury was for all practical purposes the directing mind and will of that company. Even if, contrary to the conclusion which I have reached the particularised CA Regs could ground “workplace rights” for the purposes of the Fair Work Act, I am well satisfied that Mr Lidbury did not make the decisions in respect of the substantiation of Allegations 1 and 2 and the subsequent sanctions because the LAME employees had exercised or proposed to exercise those workplace rights. Yet further, these sanctions were certainly a reasonable, even a restrained, managerial response having regard to the findings made.
2. While the conclusions which I have reached dictate that this application must be dismissed it is desirable in the circumstances of this case and having regard to the objects of the Fair Work Act (s 3, particularly objects (a) and (f)) to conclude with these observations.
3. The trade of a licensed aircraft maintenance engineer is an honourable and responsible calling. The myriad of people who daily commute by air in, to and from Australia rely upon persons engaged in this trade faithfully to perform their duties. There is a strong public interest, evidenced by responsibilities specified in the CA Regs, in the promotion within workplaces where licensed aircraft maintenance engineers work of a culture whereby persons in this trade are encouraged to report faults in respect of aircraft. Further, the existence of such responsibilities must be recognised and not exploited by employers and unions in negotiations concerning pay and conditions.
4. The evidence establishes that the QantasLink operators, materially including Sunstate, did promote and encourage aircraft fault reporting by employed licensed aircraft maintenance engineers. It is subversive of such a culture and antithetical to the public interest for what are in reality industrial actions to be cloaked as aviation safety issues. Perhaps it was that the LAME employees felt sorely tested by the state of negotiations concerning a replacement industrial agreement. However that may be, and it is no part of my role to make any arbitral decision concerning where the merits of the underlying claims in respect of a replacement enterprise agreement lay, what occurred on the evening of 19 October 2010 were not the acts of men faithful to their trade responsibilities.

The fact he found the actions were not faithful and a form of unprotected industrial action is rather important for Qantas as it means they now have actions under tort laws against the parties.

Judgement:
Australian Licenced Aircraft Engineers Association v Sunstate Airlines (Qld) Pty Ltd [2012] FCA 1222 (6 November 2012)