[Peetwo]

GlenB embuggerance update: 12/10/23 

Courtesy the UP:

correspondence from CASA-post meeting

As you are aware, I had my meeting with CASA and provided some initial comment on Pprune in Post # 2871.

I had intended to provide a further update the next day. For the first time in many years, I have slept in past the early hours and not had time to get down to the pancake parlor before work.

In the interim, I have received the following correspondence from CASA summarizing the meeting.

In the meeting I made it clear that i was of the opinion that the only reason that this matter had been kept afloat was because of Prune and Aunty Pru, and that i would continue to publish on those forums, and that i would publish my summary of the meeting. There was no inference that I should not do so.

Understandably, the Chair had an awareness of pprune and AP, but did not follow the forums actively, and I would not expect him to do so.

The response from the CEO suggested that she had a higher level of awareness. Whilst I do not expect that she would be an active follower, I must give credit where credit is due. Considering that she comes from a completely different Govt Dept, it does suggest at least some intent to "have her finger on the pulse" of GA.

The point being that when this letter was sent to me, I believe that the writers would have had an expectation that it would be published on these forums so here it is.

Dear Glen

Mark and I would like to thank you and Sonoko for coming to Canberra to discuss the outcome of the Ombudsman’s review.

In Mark’s opening remarks he noted that the CASA Board had supported the Ombudsman’s Investigation and accepted the findings that (i) there were no recommendations that would lead to a change of CASA’s legal decisions; however, (ii) like the 2019 ICC review, it had concluded that the manner in which CASA had gone about communicating and engaging with APTA around a significant regulatory change was unfair and not in accordance with our Regulatory Philosophy. On behalf of the Board and CASA’s Executive, Mark passed on our sincere apologies and explained that CASA has since made organisational changes to ensure better engagement with industry, and consistency and timeliness of decisions within CASA.

I said I would circulate to you a draft of the action items that came out of our discussion for your consideration. Please provide any comments you have in response by 11 October 2023.

1. I undertook to contact ( a CASA FOI heavily involved in APTA) about his observations of the prevalence of APTA-like arrangements in the flight training sector of the industry.
   
2. I said I would follow up with CASA’s Freedom of Information team on the status of your request for APTA’s June 2019 contract with Latrobe Valley.
   
3. Both Mark and I stressed that if you have any direct evidence that specifically contradicts the Ombudsman’s findings, then this should be provided to it. I offered to contact the Ombudsman to request it review any such material.
   
4. Mark agreed CASA would explore whether APTA’s exposition alone sufficiently set out the type of arrangements that would have allowed it to demonstrate compliance with regulatory requirements.
   
5. You set out that it was your intention to (i) seek an Act of Grace payment from the Department of Finance; and (ii) make a referral to the National Anti-Corruption Commission in relation to Jonathan Hanton’s conduct.
   
6. We reiterated CASA’s support for any Act of Grace payment application you make, and I agreed to ask my Executive Officer (Aidan Bruford) to contact you to provide whatever guidance we can in navigating the Department of Finance’s process.
   

We will endeavour to get back to you within three weeks on the points above that relate to CASA.

At the meeting you also explained the impact that Jason McHeyzer’s email to APTA describing your ongoing employment as being untenable caused you. I understand that, through its lawyers, CASA made an offer to you in 2020 in response to a Concerns Notice it had received. While that offer has lapsed, on a without prejudice and ex gratia basis CASA is open to reconsidering compensation for damages that may have been caused by the contents of Mr McHeyzer’s email of 27 August 2019. Please let me know if that is something you would like to pursue. Any compensation would relate only to Mr McHeyzer’s 27 August 2019 email and would be wholly separate from any the Act of Grace process.

Finally, we are conscious that you incurred costs coming to meet with us in Canberra. Please provide receipts of those costs (airport transfers or parking; flights; rental car) and CASA will arrange that these be reimbursed.

Regards

Pip

Refer - HERE - to the ensuing conversations/debate about the Spence correspondence etc..etc - 

Via the AP email chains:

Dear Ms Pip Spence PSM and Air Chief Marshal Mark Binskin AC (Retd)

My family and I would like to thank you for the opportunity to meet with you last week in Canberra.

I felt the meeting was well intentioned, with "good intent" being essential for any resolution. 

I understand that the line between lawfulness and appropriateness was addressed in the meeting and that CASA stands by its position that it did nothing "unlawful" but did acknowledge inappropriateness with regards to the "manner" in which this matter unfolded.

I respect your position but please understand that I have a different perspective, as you would appreciate. I am firmly of the opinion that I was treated unlawfully. 

That acknowledgement by CASA regarding the sub-optimal manner that I was treated, was significant, and to have that occur in front of my wife was important for me, and I thank you for the well intentioned manner, the frankness and tone from  the opening of the meeting.

Please be assured that I made no recording, and I took no notes at the meeting. My recollection is as best as I recall, and I was somewhat caught off-guard and affected by  Sonoko's  regarding the impact of this matter on our family.

I acknowledge that it is my recollection only, and open to interpretation. My intention is not to misquote or misrepresent the contents of the meeting or anything said by anyone at that meeting.

It was also significant that my matter had led to a process of "continuous improvement", and was a feature of the determination to restructure the way CASA engages with industry. Something that has been most traumatic about this matter in its entirety, is that it could have been completely avoided with a well intentioned meeting of less than 4 hours at the very beginning. To at least see some positive organizational change within CASA as a result of all the associated harm, is somewhat  encouraging, and noted.

I understand that the date of 11th October for me to respond was not a deadline as such, but rather an expression of your intent to move forward in a timely manner. May I respectfully request an extension of 7 days. The truth is that post our meeting, for the first time in 5 years,  I have allowed myself to get "distracted" from this matter, and it has been somewhat therapeutic and good for the family, as well as for me. 

I am  "back on board" now and typing away from my local 24 Pancake Parlor. I am going away solo camping on the weekend with the intention to have finalized my response by the end of the weekend. I don't necessarily intend for it to be lengthy, but I do hope to provide you with sufficient guidance to operate efficiently and  effectively, as I appreciate that you will both be somewhat "time poor."

If you have no objection, it would assist me to "compartmentalize" my responses.  I would like to provide separate responses to each of the action items, and in this correspondence I will address action item one from your correspondence where you stated, "I undertook to contact Nishi (Naomichi Nishizawa) about his observations of the prevalence of APTA-like arrangements in the flight training sector of the industry."

I believe that this is fundamental to the matter in its entirety. After 5 years the Ombudsman Office was unable to make a determination as to this very simple matter. For such a simple black and white issue, that can be so easily resolved, I am stunned that the Ombudsman Office was unable to make a determination as to whether the structure had never previously been accepted by CASA, as CASA led the Ombudsman to believe, or was it commonplace throughout the industry and authorized by CASA on multiple occasions throughout the industry.

It really should be that simple. Either CASA always permitted it, or CASA never permitted it. There can only be one truthful answer.

It is the complete failure of the Ombudsman's Office to be able to make a determination on something so fundamental, that  has led me to form the opinion that up until this present time,  CASA has provided false and misleading information on this aspect, as well as others.

I have asserted throughout the matter that the identical structure was always approved by formal processes by CASA on multiple occasions over my 25 years in the industry, and all industry participants within Australia would have no doubt that is the truth.

I had 25 years in the industry as a flight instructor. I was a CASA approved Head of Operations (HOO) and CASA approved CEO. I was the owner of a large and successful flight training organization that by CASAs own admission, had delivered industry leading standards of safety and compliance. I could be considered a Subject Matter Expert on  the flight training industry. 

For clarity, I will provide a background on the flight training sector, drawing on my 25 years of experience within that sector.

Increasingly over the years, many  Flight Training Operators usually  in a regional area would be unable to continue operations. Invariably this was for one of two reasons. 

The operator was unable to attract the suitable legislated Key Personnel to move to that regional area, or 
the economies of scale could no longer sustain that  regional Flight Training Organisation. 

From my own experience the best demonstration of this would be my experience operating a flight training organisation for over a decade.

In 2006 when I commenced operations, it required approximately 4000 hours of delivered flight training per annum, for the business to break even, and for me to draw an Award salary from that business. 

By 2016, my business doing exactly the same thing as it had been for the previous decade, needed to deliver 7500 hours of flight training to break even, and to draw an Award salary.

The figures are staggering. I needed to almost double sales to maintain my same position. I acknowledge that there are other cost impacts  on a business, but it was predominantly costs related to CASAs burdensome regulatory structure.  

Quite simply, no regional flight training organisation could achieve 7500 delivered flight training hours per annum. The increased costs associated with this new regulatory structure saw an overnight increase in salaries of over 30%. There was no doubt that the regional sector of the industry was facing insurmountable challenges. 

As those rural schools faced closure they would let their CASA Authorization lapse and approach a larger established flying school and request that they take over operations. 

This required a formal CASA approval process on every occasion, and required changes to the CASA approved Exposition/ Operations Manual, and for a fee to be paid to CASA for that approval process, and for CASA to satisfy themselves that operational control could be maintained. 

This was commonplace throughout my 25 years in the industry, and formally approved by CASA on each and every occasion. From my personal experience I will draw on some such arrangements that comes to mind. 

Ballarat Aero Club had previously had an  arrangement with another operator, as had Bendigo Aero Club. Perhaps of most note is that Latrobe Valley Aero Club  had an arrangement with another operator which CASA was aware of and approved. The day that they transferred from their existing provider to APTA, it was my business that was deemed unlawful, yet the day prior the operations with another Provider was perfectly acceptable to CASA. I believe that the Point Cook flying club operated under an arrangement with a Moorabbin based operator. In my own case, CASA had approved my AV8 base in Darwin 8 years prior. I have been contacted by an ex CASA FOI from the QLD region, and he is aware of these arrangements being in place throughout that region, and prepared to provide you with a Stat Dec, to that effect, I am also advised that CASA FOI Brad Lacey utilized such arrangements at Coldstream when he was CFI of Lilydale, and may be a good further source of information. The list goes on and on, it really does.

The requirement that all personnel operating under an AOC must also be employed by the same Company that holds the AOC was never a condition placed on any of these Operators. This CASA imposed requirement was unique to my Organisation.

I am confident that provided the right environment can be established there are many CASA employees that would come forward and tell the truth on this matter.

In our meeting however, I specifically nominated FOI Nishizawa. I have nominated FOI Nishizawa is for the following reasons. 

I have trust and confidence in this particular FOI. Whilst I have never had any engagement with him outside of the work environment, I have operated under him, in his role as the Chief Flying Instructor/Head of Operations prior to his employment with CASA. Whilst we might not gravitate towards each other at a BBQ, I have the utmost respect for his consistency, integrity and importantly "professionalism', and I draw on my personal experience with him, when I make those statements. 

This FOI was also the FOI that was allocated to my business by CASA for almost a decade as the "flight school subject matter expert" on flight training within my allocated CASA team referred to as a "Certificate Management Team'  (CMT2). He had constant communication with our Organization on at least a weekly base throughout the decade. Of all current CASA employees, this employee would hold the most knowledge of this matter, and have access to the truth.

This FOI, was instrumental  in the design and revalidation of APTA to the new regulatory structure. This approval occurred in April of 2017, and was the culmination of a three year project redesigning APTA to continue doing exactly  what it had been doing for the previous decade, but in the new regulatory structure of Part 141 and 142. I have attached the checklist that was used by CASA personnel including this particular FOI, to approve APTA to that new regulatory structure. The business had adopted that same structure for the previous decade, but now I had invested several hundred thousand dollars in facilities, personnel, and systems to meet the new requirements. As stated, I was fully revalidated to the new regulatory structure in April of 2017. The new regulatory structure was introduced in September 2018. The very next month in  October 2018, I  was advised by CASA  that I was unauthorized and subject to prosecution by CASA, and I was given 7 days certainty of operations.

This FOI was integral in the design of induction checklist that we used to bring new members on board., and the associated Temporary locations procedure which was in fact his recommendation, and for comment on this, if I could refer you to Page 3, post #46 where that post attends to it in more detail to our Temporary Locations procedure. It was in fact this CASA FOI who suggested that we adopt the procedure, and assisted us with the design of it.
 https://www.pprune.org/pacific-general-a...asa-3.html

Perhaps more value could be obtained in finding out what the differences were. If you are able to ascertain that in fact the identical or at least very similar structure was always accepted and approved  by CASA, it would assist me if it could be identified what was it that was different about my structure, and what specifically was the deficiency, if any.

May I close by thanking you again for the opportunity to meet with you. I appreciate that i have not attended to a number of other matters in this correspondence but will provide due attention to responding as soon as is practical.
 
I look forward to an update as to whether CASA maintains that the structure was either never approved by CASA or in fact was always and regularly approved by CASA, and hopefully for CASA to clearly identify what the shortcomings were. Something i have not been able to have answered for five years.

I respect the challenging situation that this matter places you in, i really am. My hope is that good intent and integrity will prevail, as I believe it  it will.

Respectfully

Glen Buckley

Via the UP, Lead Balloon in reply:

I anticipate that CASA’s ‘C-Suite’ position on the lawfulness of the APTA structure will in effect be: Two wrongs don’t make a right. Just because other personnel arrangements similar to those of APTA were approved, doesn't may the approvals right. I say ‘C-Suite’ because this mess was caused by differences of opinion between C-Suite and other CASA staff.

My prediction is that the C-Suite will eventually have to concede that similar personnel arrangements were approved for other flying training organisations but were also, in the C-Suite’s opinion, unlawful. That’s why those arrangements are being undone, very, very quietly.

I’ll give Ms Spence and Mr Binskin the benefit of the doubt for the time being and assume they have been advised that no other similar arrangements were ever approved, but in that case they’ve been deliberately misled. Or maybe it will be on the basis of weasel words: “Well boss, I am not aware of any evidence of any other approvals”, leaving out: “By the way, I have not tried to find any evidence.”

Of course, the C-Suite’s position on the implications of the definition of ‘personnel’ in Parts 141 and 142 and CASA’s requirements as to the level of evidence demanded to demonstrate ‘operational control’ have never been tested. However, the risks and potential costs of getting an authoritative interpretation exclude that as a practical option for most if not all ‘little’ industry players.

Let’s assume the C-Suite’s position is the correct one. It follows that the requirements eventually imposed on APTA were not unlawful. But it also follows that APTA was led up the garden path into unlawfulness by CASA staff – those friendly FOIs – who encouraged APTA to believe its original structure was lawful. CASA approved it all.

That’s why the C-Suite eventually went to all the trouble it did to try to get APTA to fit into the rules as the C-Suite interpreted them: they knew – and they still know – that CASA stuffed up by leading APTA up the garden path, even if the personnel arrangements in the APTA structure were unique.

Sadly – as we know – Glen was broken at least financially by the process. And CASA is never going voluntarily to admit any liability for its stuff up in leading APTA up the garden path by approving a structure which CASA subsequently decided was unlawful. CASA will continue to admit that the ‘manner’ in which the mess was made and the attempts to tidy it up were implemented was unfortunate or whatever other euphemisms they choose, but that’s not an admission of liability for the mess.

MTF...P2