Rumour: Sunstate Engineers suspended over aircraft sabotage?

[neville_nobody]

Makes for a interesting precident.......Is the judge saying that a design fault is not an aircraft defect therefore not covered by the regulatory obligations of a LAME?

Or that the doors were not defective?

[600ft-lb]

seems like he took an easier path and ignored the defect aspect and considered it from an industrial point of view only.

[Long Bay Mauler]

I guess he made that statement after the defect was demonstrated to the court?

Or was the defect "rectified" prior to the court being able to observe for itself what 6 maintenance professionals notated to the company, thus allowing the expert testimony of management to rule the day?

[ACT Crusader]

Another article on it

Airline safety duties not a 'workplace right'

At presstime, the Federal Court had ruled that duties and obligations under civil aviation regulations do not constitute a workplace right after rejecting licensed aircraft maintenance engineers' adverse action claim.

The Australia Licensed Aircraft Engineers Association launched the adverse action claim on behalf of six Sunstate engineers who refused to release aircraft on October 19, 2010 after reporting defects and an excessive oil leak they said required an engine change for flight. The subsequent grounding of six aircraft occurred at a time when there were "go slows" and "unresolved issues" between ALAEA and Sunstate over the renewal of an enterprise agreement.

In response to the action, Sunstate gave the engineers formal warnings, rostered them off their usual shifts and docked four hours pay from their wages.

ALAEA alleged Sunstate had taken adverse action against the engineers for fulfilling their reporting obligations under the Civil Aviation Regulation.

Justice John Logan found the regulation was not a "workplace law" under the Act and so was not a source of workplace rights.

The judge conceded that workplace laws could extend to regulations made under an enactment.

However, "it does not follow from this conclusion that the two particularized CA Regs are a law of the Commonwealth 'that regulates the relationship between employers and employees'", he said. "Not only must the law 'regulate' but there must be an object of regulation of a particular specified kind - 'relationships between employers and employees'."

He found the object of the CA Regs was air safety and the employer-employee relationship was only "an incidental touchstone for the imposition of duties serving other ends".

Even if the regulation was a workplace law, he found Sunstate had not taken adverse action against the engineers because they exercised a workplace right. He found the engineers' reporting was "in reality industrial actions cloaked in aviation safety issues" and that they "deliberately" sought to find the defects "[W]hat occurred on the evening of Oct 19 were not actions of men faithful to their trade responsibilities," he said.

[600ft-lb]

(Taking the particular issue with Sunstate and the ALAEA out of this and focusing only on the ruling.)

I'm trying to make sense of the legal speak but as far as I can understand it, at the same time it is;

1. Illegal per the regs to sign an aircraft out as fit for service when it is not and/or has unactioned/outstanding undeferrable defects.
2. Not illegal for the employer to coerce (by threat of standing you down and/or sacking you) you to certify for an aircraft which you believe is not fit for service as per above.

Am I interpreting this ruling as such ?

We have 2 sets of laws that are in conflict with each other ?

[Collando]

Lame judgement and CASA regs.

What are the implications of this Fed Sec, does this mean any judgement of a Lame can be challenged by management who are not qualified to certify themselves ? Is the ALAEA going to appeal? Surely something is either serviceable or it isn't?

[gobbledock]

What the f#ck would a wig wearing gaylord know about aviation?
Most Beaks are too busy working out how to work a minimal hour week while pulling in close to 1 mill per year for the priveledge. They spend time pontificating and thinking they are god while stuffing their giant heads into the nearest tax payer provided trough.
I wouldn't generally piss on one if he/she were on fire. They are traditionalist robe wearing dross that are so disconnected from reality it is palpable.

I bend over and bare my ass it them all.

[Collando]

As Shakespeare said. To your own self be true. Stand fast for what you know is right.you are qualified to discern what is acceptable and what is not.
Be true to yourself and the regs. This is not an action to try and disrupt a company. It is a matter of making correct judgement if there is a safety issue.
Lives depend on correct judgement and safety comes before schedule. Right?

[owen meaney]

2. Not illegal for the employer to coerce (by threat of standing you down and/or sacking you) you to certify for an aircraft which you believe is not fit for service as per above.

They were rectified and then certified by other (manager) LAMEs. It seems that the FWA didn't consider the doors an airworthiness issue.

[ALAEA Fed Sec]

Pretty crook decision guys. Our Lawyers were angry with it as I was. We agreed that the matter should be left a day or two before we read again and see if worth appealing. My initial thoughts are -

The Fair Work Act is now providing no protection for Aviation professionals if they are threatened by their employers because they won't break the law. The finding should be used to convince CASA and the Government that the Regs need to be changed to provide that protection. Unfortunately the Federal Government contains a number of politicians. More important to them is their Chairman Lounge memberships and free Grand Final Tix.

I suggest that we all as aviation employees vote in a block to the party/ind who actually will do something for us. I am over this Gillard sham Govt.

[600ft-lb]

They were rectified and then certified by other (manager) LAMEs. It seems that the FWA didn't consider the doors an airworthiness issue.

True, but this judgement seems to be that airworthiness is not the issue at hand. It seems to be more of a

"you didn't do explicitly what your employer told you to do and I find it suspicious (which you are guilty of) that you found these defects during a time of PIA for the sole purpose to create industrial pressure on your employer"

Justice John Logan found the regulation was not a "workplace law" under the Act and so was not a source of workplace rights.

From his point of view its 2 separate issues. He's made his judgement on workplace law not civil aviation law.

So taking the whole sunstate issue out of this judgement, there is no workplace protection for you if your employer coerces you to certify for an aircraft that is unfit to fly under threat of being stood down or sacked.

The CAA regs you work under offer no workplace protection. Basically, you f*** up you get strung up by CASA. You don't do what your boss says you get strung up by FWA. There is no legal middle ground or one overriding the other if those 2 laws conflict - in a possible situation where the LAME refuses to certify for a defect he in good faith won't do and the employer compels him to do.

[Sunfish]

Pickering is right. The labor party and the current Government are rancid from top to bottom.

The Pickering Post

[Managers Perspective]

Don't all jump down my neck here, a couple of simple questions.

Were the doors defective, that is, what specified limit in an "approved document" was not able to be met?

My very raw understanding, and I am very happy to be corrected, is that there were no breaches of the Supplemental Type Design holder's requirements. That is not to say that the door lock wasn't ineffective, but that the design criteria of the door was met and the aircraft was in fact serviceable to the design standards.

Whether the door lock was effective to DOTARS requirements is very different to whether the aircraft is airworthy to Type Design requirements.

MP.

[peuce]

MP ... I think the door issue is now irrelevant.

The real issue is the conflict of laws.
AND it's not just confined to Aviation.

Ergo ... if a surgeon thinks that an operation would be too dangerous to undertake on a particular patient, BUT the Hospital directed him to do it ... where does he stand if the patient dies during the operation?

OR, where does he stand if he refuses to operate? Out of a job?

[ALAEA Fed Sec]

MP thnx for some sensible questions/comments.

The STC (supplemental type certificate) says that the door must comply with its design documents including the section on requirements for continued airworthiness. In that approved document it states that -

"The cockpit and deadbolt assembly must function properly at all times in order to maintain a secure flight deck"

In his ruling the judge completely ignored these documents that formed part of the case and only addressed the Industrial side of things. The evidence shows that this part fitted to the aircraft was no longer in a condition to allow continued airworthiness (not airworthy to Type design standards) because it could no longer maintain a secure flight deck.

It should also be known that the managers who signed these aircraft out also changed the locks on each door first. If there was no defect they would not have done a thing. If it was not airworthiness they would have deferred.

Regardless of whether the defect was airworthness or not, all Engineers are obligated to report defects under CASA Regs. Airworthiness defects just need to be addressed differently.

[Wunwing]

Those who are following the Norfolk ditching saga will know that it has been suggested that the US FAA may be taking an interest in those procedings with the possibility of a downgraded rating of Australia now being discussed in mainstream press.
I wonder how the FAA will view this decision?
Wunwing

[ALAEA Fed Sec]

Maybe I should contact the FAA.

[Wunwing]

That might at least get the Ministers attention. Nothing else seems to.

[Bigdog01]

FWA decission

it would appear that the managers percieved truth far out weighs the actual truth in the eyes of the wig wearing toffs.
Are we in the aviation industry subject to different laws to everyone else, For crying out load the building trades can shut down a site due to no cold drinks available. yet in aviation a major safety issue is basically ignored except the part not seen by the beeks - every aircraft has had a major modification carried out after the fact to fix this issue of the doors - wtf

Sad day really the regulatory body has let the team down, do we now have to think twice about defecting an aircraft due schedule pressure and face the wrath of the company in court where the the vastly experienced manager (not licensed on type) but an expert due to the position held can make the serviceability statement. Whilst sitting in his/her airconditioned office feet firmly planted on the ground.

Just my thoughts.

[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)