[Peetwo]

Lead Balloon with a legal perspective - 

Via the UP: 

Ms Spence won't be in it for the money. She'll be motivated by Australia's 'enviable aviation safety record' caused by CASA's efforts in the face of uninformed critics.

Just to get the focus back on Glen’s plight, but to reinforce the point I made about the ‘standard’ being whatever someone in CASA wakes up each day and decides it is, I remind everyone that Mr White’s email to Glen on 13 March 2019 was merely a regurgitation (a quote verbatim) of words spoon fed to Mr White by Dr Aleck’s team. Those words included:

The operational and organisational arrangements 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.

If it were true that persons “employed by” an “authorisation holder” were “in all respects agents of” the authorisation holder, some very odd things could happen. If employed under a contract of service, the employed person could, as agent in all respects of the authorisation holder/employer, go off to the Fair Work Commission and agree, on behalf of the authorisation holder/employer, to vary the applicable EBA so as to double the wages of all employees. If employed under a contract for service, the contracted person could, as agent in all respects of the authorisation holder, enter contracts with third parties, which contracts would be binding on the authorisation holder.

That’s what an ‘agent in all respects’ is: A person who can do things that are legally binding between the principal and third parties.

As we know and CASA knows, there are plenty of operators out there who engage pilots as ‘independent contractors’ – that is, under contracts for service. Those contracts almost invariably include a clause that requires the pilot, as independent contractor, to acknowledge and agree that s/he is NOT an agent of the operator and to promise NOT to represent him or herself as being an agent of the operator.

Then there’s the mere bagatelle of what Parts 141 and 142 actually say. They actually include a definition that says:

personnel, for a Part 141[/142] operator, includes any of the following persons who have duties or responsibilities that relate to the safe conduct of the operator’s authorised Part 141 flight training [Part 142 activities]:

(a) an employee of the operator;

(b) a person engaged by the operator (whether by contract or other arrangement) to provide services to the operator;

© an employee of a person mentioned in paragraph (b).

The “operational and organisational arrangements contemplated by CASR 141 [and Part 142]” are opposite to the effect asserted in Mr White's email. There is no way that all of the people covered by (b) and © – that is, people who are not an employee of the operator – are “in all respects agents” of the operator.

Someone in CASA just woke up one day and decided that the rules don’t mean what they say. That becomes the practical standard because the only way in which Glen could get an authoritative decision to the contrary would result in him going broke and bankrupt quicker than he would in just giving up.

All in the interests of the safety of air navigation, of course.

MTF...P2