[Peetwo]

GlenB embuggerance update: 20/02/21

Via the AP email chains:

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19/02/21

Correspondence to Ombudsman regarding the forced closure of Melbourne Flight Training, my business of 13 years. Submission three of four.

Dear Mark, Complaints Resolution Officer, Commonwealth Ombudsman Office,

Thank you for the offer of a telephone call to further discuss this matter, and I am confirming that I would like to accept the offer. Could you please advise some options that would be suitable for you?

Relevant Information

Attachment: “Employees and Direct Operational Control” This contains approximately a number of emails on the topic with a short summary below.

· Email 30/06/2019- My response to Mr. Martins email of 20/06/19 where he directed that “for the avoidance of doubt, this would allow flight training to be conducted by APTA employees only- not employees for affiliates.” I believe that this was an unlawful direction, and my perspective is supported by the Ombudsman Office. CASA seemed to determine to tie responsibility for pilots to where they derived their salary. This was clearly not accepted industry practice and would demonstrably reduce safety. My perspective was that I was responsible for all pilots, irrespective of where they derived their income, as was accepted industry practice, and continues to be. In this correspondence, I also call on CASA to define “employee” and draw on existing CASA definitions that support my perspective i.e., responsible for all pilots irrespective of where they derive their income.

· Email 16/08/19- My direct appeal to Mr. Crawford (current Acting CEO of CASA) to provide a definition of “direct operational control”. Mr. Martin copied in.

· Email 21/08/19- Email requesting Mr. Martin to acknowledge receipt of my email 16/08/19 and a further email, requesting CASA to meet with me and the Pilots Union to determine an acceptable definition of employee and direct operational control. My hope was that such a meeting could be mutually beneficial.

· Email 22/08/19- A further request to my previous emails requesting a definition of direct operational control, and confirmation that I have complied with CASAs direction that I had to transfer all MFT staff, MFT resources, and financial control to the new owners of APTA, effectively giving away my business of 13 years that had a multimillion-dollar value for absolutely nothing.

· Email 16/09/19- This is a follow-up email to my previous and still unanswered email of one month earlier.

· Email 25/09/19- Email to Mr Martin and Mr Mcheyzer (since left CASA) calling on them to define operational control. I am now in significant financial distress and am seeking an explanation from CASA

· Email 26/09/19- Email from Craig Martin that still provides no definition of Direct operational control. This email does also make some statements that I am obviously aware of a CASA Approved Head of Operations, CASA-approved CEO, an RTO Principal Executive Officer, and a business owner of 13 years, who has been a pilot for 25 years. Importantly this correspondence makes an incorrect statement, Mr. Martin writes “In October 2018, CASA advised that it would finally assess the matter on the basis of the information available on July 1st, 2019. That wording could perhaps lead the reader to believe that CASA gave me 9 months to resolve this matter. Recall that in fact, CASA gave me only 7 days surety of operations. A number of short-term interim approvals to operate were issued, over the 8 months but the restrictions on the business's ability to trade remained. With me, and my parent's funds exhausted, including the sale of the family home, APTA was by now sold as of June 30th (the day earlier)

· Email 10th October 2019 Further request for a definition of direct operational control.

· Email 20th November 2019 a further email to Craig Martin seeking a definition of Direct operational control. Legal issues are now developing with suppliers and staff who have been affected, and I am desperate to get an explanation for upcoming court appearances as a result of MFT being closed down by CASA.

Link to Prune: A chat forum on my matter that has over 1500 comments, and ¾ million visits; Glen Buckley and Australian small business -V- CASA - PPRuNe Forums

Executive Summary

As you are aware, there are three separate and distinct issues.

Issue 1. CASA closing down APTA without any prior notice by placing restrictions on its ability to trade that deprived it of revenue, and that the CASA personnel involved would have been fully aware that those restrictions would lead to the business's closure. As you are aware, I am firmly of the belief that had no basis in law, and that is clearly supported by the Commonwealth Ombudsman’s Report, where he identified that CASA had no basis in law and that CASAs actions had the potential to cause detriment, which I clearly contend that it has. This was a complete reversal of my business overnight, which had been designed with CASA over a two-year period, approved, audited, and recommended by CASA. I have attended to this in my second submission. I have contacted the Chair of the Board of CASA, Mr. Anthony Mathews, but he has advised CASA will not interact with me until the Ombudsman Report is finalized.

Issue 2. The CASA direction that my flying school of was an “unauthorized operation. The business that had been trading for 13 years was closed by the actions and decisions of some CASA personnel., and the subject of this correspondence. Of all the action that CASA took against me and my businesses, I feel this is the most inexplicable, and arguably caused the most damage.

Issue 3. The direction that the CASA Region Manager sent to my Employer that my continuing employment was “not tenable.” The impact of that on my reputation and my ability to remain in the aviation industry. I am firmly of the opinion that this direction had no basis in law. It certainly had no basis in safety. It had a significant impact on me financially, reputationally, and on my wellbeing, and obviously that of my family. I have attended to this matter in my first submission.

I have now made a submission against issue 1 and Issue 3.

In this correspondence I am referring specifically to Issue 2, being the closure of my established business, Melbourne Flight Training by the actions and decisions of a limited number of CASA personnel.

To clarify the chronological order, this was the second stage, and occurred just prior to CASAs direction to my Employer that my continuing employment was not tenable, but after the forced sale of APTA at nominal value due to restrictions on its ability to trade. i.e. no surety of operations from July 1st 2019.

This correspondence is my third submission, with the fourth and final submission to follow, that being the impact of CASAs action on my staff, my students, my suppliers, the flying schools, other businesses, and me and my family. In my opinion that final submission is significant. I am alleging that CASA personnel, made deliberate and considered actions and decisions, they were fully aware of the commercial implications on mine and other businesses. This applies to their conduct from the date of sending that initial correspondence on 23rd October 2018, through until the loss of the business 8 months later. Throughout the 8 months, I made repeated please to CASA to resolve this matter due to the commercial impact.

To the purpose of this current correspondence, which requires an appreciation of the following underpinning knowledge.

· The initial notification from CASA of 23rd October 2018 had a paragraph titled “unauthorized operations”. (that document is attached)

· It listed 5 companies that were allegedly conducting “unauthorized operations”.

· One of those 5 companies listed was Melbourne Flight Training (MFT)

· MFT was my own flying school that I had been operating for the previous 13 years.

My question on this topic. How could Melbourne Flight Training possibly overnight become an “unauthorised operation”, when it was operating EXACTLY the same way, and with the same structure that it had for the previous 13 years? This was incomprehensible. It made absolutely no sense at all. How could my own flying school that had delivered industry-leading levels of safety and compliance, with absolutely no allegations against it at all by CASA, suddenly become an unauthorised operation, and advised that it was to be shutdown. All of this with only 7 days’ notice. This was truly incomprehensible. On that basis, CASA should have written to every flying school in Australia. It was truly absurd. I have made multiple requests to CASA to have this clarified, all have been ignored. My hope is that the Ombudsman’s Office is able to obtain an explanation from CASA, if indeed there is one, and determine if CASA conduct seemed lawful and reasonable in the circumstances.

The initial impact of the CASA action

As you can imagine, the notification that my own school MFT, where my family derived their livelihood was now threatened with cessation of operations in 7 days, and that CASA was likely taking enforcement action came as a shock and was totally unexpected. I could not understand why I was being targeted, and not every other school in Australia. This was extremely traumatic, and more so because CASA was in the process of shutting down APTA, a CASA-approved structure that many businesses depended on for their continued operations.

There were no aircraft accidents or incidents at all. There were no regulatory breaches. I knew this school backward, after all, I had set it up over a decade prior. For some inexplicable reason, my business had become an unauthorized operation as deemed by CASA overnight and with no prior warning.

The impact of that initial action on MFT was commercially fatal.

My flying school was immediately unable to enroll new students. It was unable to conduct any marketing. The existing staff immediately become concerned about ongoing employment, I was unable to recruit new talent to the organisation, ongoing contractual obligations to suppliers are in doubt, obligations to financial institutions become difficult to meet with revenue streams restricted. Its reputation was decimated as word spread that CASA was shutting down MFT. Potential customers assume that CASA is closing down the business on safety concerns when that is clearly not the case.

The business was instantly and immediately crippled. The costs remained i.e., rents, leases, contracts, salaries, insurance, etc but revenue was halted. This determination that MFT was an unauthorised operation was inexplicable, but the damage was very real.

Further Information

It's important to understand the difference between APTA and MFT. Whilst APTA was the CASA approved system that was authorised by CASA 18 months prior, my “business” where my family derived their livelihood was in fact Melbourne Flight Training, the flying school that I had established 13 years earlier with my closest friend and had been my source of income throughout that time. APTA was the overriding system to ensure my flying school and initially, nine others could continue operations in the more burdensome Part 141/142 legislative environment that was only just introduced.

This matter was never resolved with CASA. MFT operated as best it could over the 8 months, as an unauthorised operation, and once I had sold APTA under duress, CASA directed their attention to my remaining business, my flying school MFT. In a previously undefined CASA term, the CASA Region Manager (who had no experience in the flight training sector of the industry) directed that in order for CASA to be assured of Direct Operational Control, I had to transfer my staff, students, resources, and financial control of the business MFT to the new owners of APTA, or MFT would have to cease operations.

I complied with CASAs request. By now, I was financially and emotionally drained after 8 months of trying to bring common sense and good intent to the process. I was not in a good place so to speak and resigned myself to the loss of the business. Any peace of mind came from the fact that the new owners of APTA would keep me on as an employee. At this stage, I did not know that only weeks later, CASA would send a direction to my new Employer that my continuing employment was untenable. But I have covered that in my first submission.

Ongoing Impact of CASA Action

After I complied with the CASA direction to transfer my school MFT to the new owners of APTA. When CASA made the direction that I had to transfer all my staff, students, and full financial control to the new owners of APTA. This direction had no basis in law. As you can imagine, as soon as I transferred my staff, students, and full financial control to the new owners of APTA, I was left with nothing. I no longer had any way to derive my livelihood. A Business

This created a number of difficulties for me. The first priority was that I had to minimise the impact on staff. If I was to transfer all of my staff as CASA required, what happens to their accrued annual leave, long service leave etc. I was being forced to transfer my staff to another Company. The attached correspondence shows my attempts to resolve this matter. I was effectively being forced to terminate my staff.

Many students elected to continue on their training with other providers, but their training was significantly impacted by the closure of APTA.

I have a number of impending court cases as a result of this. My business was forced into closure by CASA, but many contractual obligations remain for printers, telecommunications, internet etc. I have been left with no way to meet these contractual obligations, and it highly likely that I will be declared bankrupt. You will recall that CASA sent the direction to my Employer that my continuing employment was no longer tenable.

The loss of MFT had a significant impact on me, as it was more than just a business to derive my livelihood, it was far far more to me than that, although I will attend to that in my next correspondence.

For clarity on this matter, I do not believe that CASA had any basis at all to direct me to advise that MFT was an unauthorised operation or to direct me to transfer my staff, students and resources to another entity. The impact on me has been significant, and as you can imagine impacted the future security of me and my family.

Thank you for considering this matter, and I look forward to the opportunity to chat on the phone.

Cheers. Glen Buckley

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Plus via the UP:

Lead Balloon

Quote:

Originally Posted by Sunfish 
Glen, if this is a true statement of affairs, then it is utter crap on CASA's part. ..

Here is the key passage from correspondence from CASA to Glen:
Quote:

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.

I note, as I noted earlier, that, remarkably, not a single legislative provision is cited to support that assertion. It is, in effect, merely an assertion about the 'vibe' of Parts 141 and 142.

It is regulation conjured in the mind of a complicator.

As you've noted, vast amounts of important, complex activity are carried out in the real world through subcontractors and the employees of subcontractors, none of whom are in any respect the agents of the prime contractor.

Glen added a clause to the contracts with APTA members, to make clear that APTA had regulatory aviation safety responsibility for their activities. CASA then 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).

That was, as a matter of practicality, the death knell for the APTA model.

Next Sunfish nails it -  : https://www.pprune.org/australia-new-zea...st10993785

Sunfish

(Cross posted)

Quick question. I understand CASA is looking to recruit and appoint a new DAS/CEO...

I assume anyone contemplating accepting such an appointment would do due diligence.

What person would take the job with this steaming turd of the Glen Buckley/APTA case hanging overhead?

I would want it resolved before I took the job because otherwise it would fall to me to resolve it which is likely going to require a public apology by CASA, the payment to Mr. Buckley of a very large sum and a full blown strategic review and restructuring of CASA itself.

And LB's reply:  https://www.pprune.org/australia-new-zea...st10993786

The sort of person who will be able to say, with a straight face, that what was done to Glen was necessary in the interests of the safety of air navigation. Might even believe it (which would be scary).

MTF...P2