[Peetwo]

GlenB embuggerance update - 4/02/21: DRAFT correspondence to the Ombudsman.

Via the UP refer from - HERE - for a 15,000 word DRAFT letter to the Commonwealth Ombudsman from GlenB. 

In response to that from LB and CO...  

Lead Balloon

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. 

glenb

Ombudsmans report

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Originally Posted by [b]Flaming galah[/b] 
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 defendapta@gmail.com 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

Lead Balloon

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:

Quote:

[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:

Quote:

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" shit - laws don't think):

Quote:

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 [i]APTA[/i] get 'the treatment'?

Sunfish

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!".

Paragraph377

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 ‘shitogram’ 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.

glenb

You get it

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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.

Lead Balloon

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.

MTF...P2