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Glen Buckley and Australian small business -V- CASA

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Glen Buckley and Australian small business -V- CASA

Old 28th Jan 2021, 07:20
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Sunfish you seem to have a huge faith in the public system.
In other threads you chastise the corporate executive type as the snake in the grass (and typically rightfully so). But in this instance you’re under the impression that there simply must have been a safety issue for CASA employees to go down the road that they chose. Perhaps the individuals involved share a lot of common personality traits. Albeit with a slightly lower IQ in one of the sectors.
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Old 28th Jan 2021, 09:15
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Cutting through the chaff

Originally Posted by NGsim
Sunfish you seem to have a huge faith in the public system.
In other threads you chastise the corporate executive type as the snake in the grass (and typically rightfully so). But in this instance you’re under the impression that there simply must have been a safety issue for CASA employees to go down the road that they chose. Perhaps the individuals involved share a lot of common personality traits. Albeit with a slightly lower IQ in one of the sectors.
To be fair to Sunfish, I get the impression he has quite a robust background in business and perhaps as a CEO. My guess also is that at some point in time he has been burned by corporate parasites. But I also expect that his experience in working for or dealing with a Government regulator is minimal at best, and that is not a criticism. My assessment could be wrong and if so, then sa la vie. But until you have dealt with CASA either as an employee or as a client (industry participant) you cannot fathom what these douchebags are very capable of. In fact mere words or Ramblings on PPprune cannot relay the truth of what goes on. Glen is the perfect example. How long had he worked in aviation? Had he ever been on the ‘wrong side’ of CASA prior to 2 years ago? Had Glen heard the rumours about CASA’s vindictiveness? Probably, but he had never experienced it first hand. And now he has. Now he is telling ‘his’ story, and for some of us it is oh so familiar. For others, it is a shock and possibly they see it as inconceivable. But it isn’t.

All niceties aside, CASA is an out of control but protected species. No senate inquiry, senate estimates, investigation or any other action against them has succeeded. That my friends, tells you everything that you need to know.

Until CASA is dismantled, is subject to a royal commission or there is a kangaroo tail poking out of a giant, smouldering crater THERE WILL BE NO CHANGE AT CASA. None.
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Old 28th Jan 2021, 11:24
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Guys, with apologies to Glen, I have been “burned” in business to the tune of at least $200,000 and countless hours of work by a very convincing Gentleman with a sad story to tell. Unfortunately for all of us at the time - me, our business, a major U.S. company and a U.S. Federal Government Department. our colleague falsified one tiny but important element in his “story”. That cost us a total of at least a million in wasted effort and potentially cost the Australian and U. S. economy tens of millions of dollars.

I learned the hard way to be sceptical and ask for proof. I should have done so months ago.
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Old 1st Feb 2021, 01:52
  #1464 (permalink)  
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Contracts issue

I will be referring to this in an upcoming post. I'm hoping to post it now, and it will be used to refute CASAs assertion to the Ombudsman that CASA made a number of "good faith" attempts to resolve the contracts issue.

I will post once the pending approval process is finalized. Cheers. Glen.
Attached Files
File Type: pdf
contract resolution..pdf (1.94 MB, 63 views)
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Old 1st Feb 2021, 23:36
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The crux of the issue is this from CASA:
The operational and organisational arrangement contemplated by CASR 141 [and Part 142] are based on a conventional business model, under which all of the operational activities conducted by the authorisation holder are carried out, for and behalf of the authorisation holder by persons employed by, and in all respects as agents of, the authorisation holder.

From a regulatory perspective, and in the interests of safety, the essense of this model is that the authorisation holder is fully accountable under the applicable legislation, and is demonstrably able and willing to do everything that needs to be done to ensure that its safety-related legislative obligations are effectively fulfilled. As a matter of operational control, and integral to the very object of the authorisation[s] involved, CASA must be satisfied that all these considerations have been, and will continue to be, satisfied by the authorisation holder.
I note that, remarkably, not a single legislative provision is cited to support that collection of motherhood statements. It is, in effect, merely an assertion about the 'vibe' of Parts 141 and 142.
Now it may be that CASA's opinon is correct. But it may not be. I don't understand why you didn't take them on to test the question. Of course CASA would, as usual, go into full air safety sophistry mode, but you might have jagged a judge or tribunal member who'd insist on legislative support for CASA's Wizard of Oz act.

In any event, that's why CASA wanted to:

- see clauses, in the contracts between APTA and its 'franchisees' - described by CASA as 'subordinate entities' - that 'contractually relinquish or subordinate what would otherwise be the kind of operational autonomy they might otherwise entertain [a very odd word, I must say...] (as a corporate entity with the potential to perform such functions on their own accord [another very odd word, I must say...] to the authorisation holder (APTA); and

- be convinced that those contractual arrangements were 'effectively implemented'.
If you accept or are otherwise not going to challenge CASA's assertions about the vibe of Part 142, it follows that you had to have contract arrangements in place to the above effect.

Your email of 18 February 2019 completely muddles what it was that CASA wanted to see in the contracts. That email says:
The correspondence dated 25 January had some text at the first dot point that commenced "the subordinate entities....." That text suggests that the Members actually have an approval or permission and are handing something over, when in fact they are not. The concern being that by signing they may be contractually tying themselves in more than they would like. i.e. "potential to perform such functions on their own accord" when in fact they don't.
You got it completely arse-about, Glen.

The text did not suggest that the Members were getting an approval or permission. APTA was the only approval holder. That was precisely CASA's point.
If APTA was going to be the only approval holder, the Members had to contractually bind themselves to be operationally controlled by APTA, otherwise there was no way in which CASA could be satisfied that someone responsible for regulatory compliance (APTA) had control over the operational activities of the APTA Members.

The Members were 'handing something over'. They were binding themselves to be operationally controlled by APTA. If the Members were not willing to do that and wanted to conduct operational activities 'on their own accord' - that is, not under the operational control of APTA - then each Member entity would have had to apply for and obtain its own, separate, Part 142 approval.

On CASA's view of Part 142, it was simple:

- the Members had to contractually bind themselves to be operationally controlled by APTA (and CASA required evidence of that), and

- APTA had to exercise that control effectively (and CASA required evidence of that).

Unless you are willing and able to take CASA on and win in an argument about the proper interpretation of Part 142, or you can produce copies of binding agreements, between APTA and its Members, with clauses to the effect required by CASA, I reckon it is, unfortunately, 'game over' for you from a regulatory perspective, Glen. It seems to me that your only path to any compensation lies in a negligent misstatement/equitable estoppel argument. That would require you to show that CASA encouraged you to believe that your model satisfied the applicable regulatory requirements without clauses, in binding agreements between APTA and the Members, to the effect required by CASA.
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Old 2nd Feb 2021, 21:56
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Back soon folks

I am finalizing a 15,000-word submission for the Ombudsman Office. Yes 15,000 words. Remember how you used to groan at school when you got a 1500 word essay. Consider also that i am a one finger typer. If CASa wanted to get rid of me, they simply need to chop my right pointer off. Anyway......

I have taken on board much of the recent feedback and questions put to me on here and tried to embed it as best I could. I will be very keen on any suggestions. Any tough questions, mild, I repeat mild, abuse, etc.

I will post it on here today if all goes to plan. It will be a living document, so I will edit it here, prior to submission. I hope to submit it, by the close of business this Friday.

If you do need to communicate with me, and you would rather not do it on here, could I ask that you email [email protected]. My Pprune message box is full, and I don't want to delete any more messages. (they hold a lot of sentimental value) cheers. Glen 0418772013
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Old 2nd Feb 2021, 22:02
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Letter to Ombudsman PART ONE

THIS POST REMOVED AS IT WAS A DRAFT LETTER WHICH HAS BEEN FINALISED.

THE FINALISED LETTER CAN NOW BE FOUND AT POSTS 1505 to 1510 INCLUSIVE, CHEERS. GLEN

Last edited by glenb; 10th Feb 2021 at 05:20. Reason: refer post
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Old 2nd Feb 2021, 22:10
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PART TWO

this post removed from here as it was a draft. The finalsed correspondence to the ombudsman can now be found at posts 1505 to 1510, cheers.glen

Last edited by glenb; 10th Feb 2021 at 05:21.
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Old 2nd Feb 2021, 22:42
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Part 3

Content moved to posts 1505 to 1510

Last edited by glenb; 10th Feb 2021 at 05:23.
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Old 2nd Feb 2021, 22:50
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Part 4

Refer Posts 1405 to 1410. This content moved there. Cheers. Glen

Last edited by glenb; 10th Feb 2021 at 05:24.
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Old 2nd Feb 2021, 23:24
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On the matter of the contracts. At the time of CASA sending that initial notification on October 23rd, 2018, calling on me to supply contracts, embarrassingly for CASA, they already held the contracts, and they had been supplied to CASA on multiple occasions, well before the date of October 23rd, 2018. CASA had “overlooked” that very important fact. This indicated to me that CASA had not provided a proper handover when APTA was transferred from CASA CMT 2 to CMT 3.

Had CASA realised that they already held the contracts, it is most likely they would not have placed the trading restrictions on the business, and they would not have called on me to provide contracts that CASA already held or acted in such a heavy-handed manner. The contracts were entirely my own initiative and had been supplied to CASA on numerous occasions. CASA had shown little or no interest on the multiple occasions that I previously provided copies of the contract. My reasonable assumption was that they had no interest in the business aspects, which understandably are outside CASAs remit, unlike regulatory compliance and safety, which clearly are.

Initially CASA denied that I had provided contracts. I directed them to the multiple emails that supported my contention. CASA then concurred that they did in fact hold the contracts. In Post #1448 there is evidence that a copy of our contract was provided to Mr Graeme Crawford, the second most senior person within CASA, over 1 year earlier. At the time of writing Mr Crawford is the Acting CASA CEO. The contracts were also supplied to multiple other CASA personnel on multiple occasions within CASA ...
Glen

Can you please post a copy of one of the contracts APTA entered with a Member. You can black out names and addresses and numbers and signatures etc, but I think it is essential to see a copy of what you say CASA had.

If you are not willing to do that, can you confirm that the contracts you say CASA had:

1. were signed on behalf of APTA and the Member concerned, and

2. contained clauses to the effect required by CASA.

I'm not saying the regulatory regime enabled CASA to refuse an approval if the above was not provided but, if the regulatory regime did enable CASA to do so, the terms of the documents that you say are contracts provided to CASA become critically important.
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Old 2nd Feb 2021, 23:27
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So what did the Ombudsman say that you’re responding to?
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Old 2nd Feb 2021, 23:32
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Ombudsmans report

Originally Posted by Flaming galah
So what did the Ombudsman say that you’re responding to?
Im somewhat reluctant to post it on here in its entirety, as I'm not sure if that would meet with the Ombudsamns consent.

I have tried to encapsulate it in my responses. Please note that the document posted is a work in progress, as I'm trying to juggle it around 13-hour shifts, and just wanted to get it out there.

If anyone wants a copy of his correspondence, please feel free to email me [email protected] and request it. Cheers. Glen.

Heading off to work now, with no electronic access until 11 PM tonight. Day off tomorrow, so I shall return
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Old 3rd Feb 2021, 03:06
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I think I've figured where it went pear-shaped for you, Glen.

In your email of 21 February 2019, you quoted a clause that your lawyer suggested be added near the signatures page of the proposed contract between APTA and a Member. That clause should have satisfied CASA so far as the contract was concerned, with the only residual issue being demonstration of practical operational control by APTA of its Members.

But then CASA went full retard. In its email of 13 March 2019, CASA demanded:
[A] tabular legend, showing how and where the actions called up under each applicable provision of the civil aviation legislation germane to the conduct of operations under CASR Part 141 [and Part 142] are effectively addressed in the terms of the contractual agreement(s).
Yeah, right.

When I read this bit of the email, I figured out who'd weighed in to drive you into the ground, Glen:
If CASA can be satisfied that the arrangements reflected in the contractual agreement(s) provide an effective and reliable basis on which APTA could be expected to fulful its obligations as an accountable holder of an authorisation under CASR Part 141 [and Part 142], and in the absence of any other reason not to do so, it is expected that CASA would make a favourable disposition of APTA's application. Such a favourable disposition could reasonably be expected to involve the inclusion of such conditions as CASA might reasonably consider to be necessary and appropriate in all the circumstances.
The clue is in the first sentence of the second paragraph of the email.

This is regulation conjured up in the mind of the author.

Let us for a moment accept that this assertion by CASA is what the law "contemplates" (noting that laws don't "contemplate" **** - laws don't think):
The operational and organisational arrangements contemplated by CASR Part 141 [and Part 142] are based on a conventional business model, under which all of the operational activities conducted by the authorisation holder are carried out, for and on behalf of the authorisation holder by persons employed by, and in all respects acting as agents of the authorisation holder.
OK then, let's think that through.

In the "conventional business model", does CASA require the applicant for a Part 141 approval to provide "a tabular legend, showing how and where the actions called up under each applicable provision of the civil aviation legislation germane to the conduct of operations under CASR Part 141 are effectively addressed in the terms of the contractual agreement(s) with the applicant's employees?

Methinks not!

Yet, each employee is an entity separate from the applicant (that's why they can enter a contract of employment with each other) and may have no authority to be the agent of the applicant. Employees are not necessarily "in all respects acting as agents of" the employer, when doing their work.

And an incompetent and poorly supervised employee can pose the same risk to the safety of air navigation as posed by an incompetent and poorly managed independent contractor. (Of course, no air operator has ever taken on pilots or instructors on an independent contractor basis, have they, CASA...) Surely CASA must demand to see contracts of employment and a tabular legend showing how and where the actions called up under each applicable provision of the civil aviation legislation germane to the conduct of operations under CASR Part 141 [and Part 142] are effectively addressed, because the employees are the people doing a lot of stuff that affects the safety of the operations of their employer. Surely!

The fascinating question is: Why did APTA get 'the treatment'?
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Old 3rd Feb 2021, 04:52
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Why did, allegedly, APTA got "the treatment"?

There is a concept in business called 'critical mass" - where business becomes self sustaining and ceases to require seed capital as it generates enough revenue to sustain itself and more importantly grow because it generates further capital that can be invested in the business.

Consider APTA's likely future, assuming it was economically successful under Glens management.

1. It offers a cost effective pathway for flying schools to comply with CASA's strict and voluminous requirements. That is the incentive to the schools.

2. Soon APTA grows nationally and builds a clientele of say 50 schools, assuming that Glens APTA model is scaleable as I expect it was.

3. As time marches , APTA invests in refining its model to achieve further efficiencies and to comply with the natural increase in CASA regulation, amendments, etc.

Pretty soon APTA is the ONLY way for a school to comply with CASA part 141/142 requirements UNLESS the school wants to duplicate APTAs investment in both money and time. The APTA knowledge base is now voluminous and constitutes a huge barrier to entry for new players.

We would call this business a raging success and it would deserve the title because its key success factor is the provision of regulatory compliance at a reasonable costs. APTA fights the battles (sorry, I mean negotiates) with CASA on behalf of everyone. ALL you have to do to run your school is to comply with APTA manuals and you are GUARANTEED to meet regulatory requirements.

Now loook at it from the perspective perhaps of a lower level CASA employee charged with regulating APTA.

1. You are now dealing not with one school but an organisation employing perhaps 2500 people directly and indirectly that teaches perhaps 5000 pupils per year.

2. Considering CASA staffing changes, APTA management now knows more about part 141 / 142 than you do because it has negotiated over every word of regulation written on the subject for the last five years.

3. This isn't a little tin pot business that you can push around any more, assuming you wanted to. APTA is now a major, perhaps THE major, provider of flying school services in the country. You cannot shut them down any more that CASA could shut Qantas or REX. They cannot be bullied. APTA has achieved critical mass.

The result? CASA has lost power and control of the training agenda because it can't change regulations at will without APTAs acquiescence. CASA has lost job opportunities because one negotiation with APTA replaces fifty or more individual negotiations with schools.

For CASA this adds up to loss of control, loss of power, loss of job opportunities. Furthermore APTA paves the way for AMPA (Australian maintenance providers alliance), AGAA (Australian GA Allliance) and ACPA ( Australian charter providers alliance).

As Sir Humphrey would have said: "Minister! This cannot be allowed to happen!".
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Old 3rd Feb 2021, 05:34
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That’s an easy question to answer Leady. ‘Someone’ from APTA will have done one or more of the following things (prior to receiving ‘the treatment’);
- stood up to a senior CASA employee and tried to ‘put them in their place’,
- complained to the industry complaints commissioner,
- complained to a local Member of Government,
- emailed a ‘****ogram’ complaint in writing to CASA,
- sought legal advice in relation to CASA (which came to CASA’s knowledge)
- a CASA employee or ‘associate’ stood to gain financially by APTA having its wings clipped.

Hell hath no fury like a scorned CASA. A very egotistical, arrogant, conceited, vengeful and sociopathic Government regulator.
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Old 3rd Feb 2021, 06:55
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You get it

All three of you make valuable and well considered input, and you get it. There is no doubt.

Whilst the concept was to grow to only 10 schools initially with an ultimate goal of 20, i’m convinced it would have worked.

i got to ten members right on schedule.

With the Part 141 and 142 and Cricos international student approval, and an RTO, an enormous capability would have been bought to Regional Aviation.

i had met with Australian Embassies overseas and we were well poised to give the foreign owned schools that now deliver over 50% of flight training in Australia, a real competitor.
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Old 3rd Feb 2021, 06:56
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And if i beat CASA.......

i will do it all again
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Old 3rd Feb 2021, 09:08
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And just so folks can understand why CASA's position is indefensible...

It is not true, as asserted by CASA, that the employees of a certificate/approval holder are "in all respects acting as agents" for the certificate/approval holder. 5 minutes googling will confirm that, if you don't have access to a second year law student.

If it were true that the employees of a certificate/approval holder are "in all respects acting as agents" for the certificate/approval holder, it would follow that, for example, any pilot from Qantas could, as agent of Qantas, bind Qantas to a contract for the purchase of 100 787s.

In effect, CASA required APTA to meet a higher standard than the so-called "conventional" applicants in order for CASA to be 'satisfied'.

CASA being 'satisfied'? Such a clear and concise standard.

Last edited by Lead Balloon; 3rd Feb 2021 at 09:25.
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Old 3rd Feb 2021, 10:21
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If........

my wife and kids let me
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