|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1050279-1
DEPUTY PRESIDENT BOOTH
C2014/4105
s.739 - Application to deal with a dispute
Mr David Croal
and
CHC Helicopters (Australia)
(C2014/4105)
CHC Helicopters (Australia) Pilots Enterprise Agreement 2013-2016
(ODN AG2013/12261)
[AE406340 Print PR546725]]
Sydney
11.27AM, WEDNESDAY, 2 JULY 2014
PN1
THE DEPUTY PRESIDENT: All right. In that case we will commence Mr Croal's matter and, Mr Stephens, I take it that you're going to lead off.
PN2
MR D. STEPHENS: Thank you, your Honour. I might just start with - I propose to put some relatively brief submissions to give some context and then we intend to call Mr Croal. Mr Croal is our one and only witness. First, your Honour, suffice to say we rely obviously on our outline of submissions that we provided in these proceedings.
PN3
THE DEPUTY PRESIDENT: Yes.
PN4
MR STEPHENS: On that I was wondering, at some point is the commission proposing to mark - - -
THE DEPUTY PRESIDENT: I think I should, yes, because there are a few supplementary documents so we want to be sure that we're marking the right thing. So I have got submissions here that are headed "David Croal v CHC Helicopters". They are undated but they were forwarded undercover of correspondence from the Australian Federation of Air Pilots dated 27 May 2014 and I will mark those AFAP1.
EXHIBIT #AFAP1 OUTLINE OF SUBMISSIONS IN CORRESPONDENCE FROM AFAP DATED 27/5/2014
PN6
MR STEPHENS: Thank you, your Honour. Your Honour, David Croal, the pat in this, is a captain at CHC Helicopters and he has been for many, many years. He's been a helicopter pilot for even longer. I might say that there is no evidence, nor is there any inference sought to be drawn by the respondent in this matter that Mr Croal is anything but a highly qualified and skilled and competent pilot. Between October 2011 and February 2014 Mr Croal was on a period of extended family leave and that leave extended until such time as his son turned five or school age. His son in fact started school now in February 2014 so the family leave period has met its purpose, if you like.
PN7
Mr Croal is covered by the CHC Helicopters Australia Pilots Enterprise Agreement 2013 to 2015 and, among a number of things, the agreement provides for two things in particular that are relevant to these proceedings. First it provides for a process to fill vacancies based on a system of pilot standing bids. I'm sure the commission has now developed an understanding of what a standing bid is from the material but in essence what it simply means is that twice a year is entitled to advise in writing on a standard form of their preferred work locations or alternatively operational type of location.
PN8
THE DEPUTY PRESIDENT: Yes.
PN9
MR STEPHENS: Secondly, the agreement provides for what's called seniority and again seniority just very briefly provides for a pilot who, depending on their starting date of employment, is ranked at the top of the list and progressively down to the most recently employed pilot and, as a result of that seniority, certain rights flow to them based on seniority. I think at one point at least a similar system might have operated within the commission. I'm not sure.
PN10
THE DEPUTY PRESIDENT: This might be a frivolous comment but I have had a very taxing morning so you'll forgive me. When I arrived at the commission in 2012, I was most confused because I couldn't find my colleagues in the telephone list because it wasn't alphabetical. It was in order of seniority so I understand the seniority.
PN11
MR STEPHENS: I will withdraw those submissions. I'm clearly talking to the qualified. Your Honour, in terms of seniority as it relates to standing bids they are interrelated and one plays a part in terms of the other. In terms of standing bids seniority entitles the more senior pilot to be given the opportunity where there are competing standing bids. When I say "the opportunity", it is the opportunity to be considered for the vacant position and, if necessary, to be provided with training if that is all that is absent.
PN12
Mr Croal is number 4 on the seniority list of some 216 pilots at CHC Helicopters. He has a standing bid in for Wollongong and numbers 1, 2 and 3 on the seniority list do not have standing bids for Wollongong so CHC Helicopters is the most senior pilot with a bid for Wollongong. The standing-bid system is provided for in clause 24.1 of the EBA or the agreement and the process for filling vacancies is outlined at clause 24.2. Of course 24.1 and 24.2 of the enterprise agreement are interrelated to the extent that in terms of the role the seniority plays in filling vacancies through the standing-bid system is covered at 24.2.5 of the agreement where you can you see there that he or she with the higher seniority gets, if I might say, the gig.
PN13
Clause 24.2 provides a process which the company must comply with in terms of filling vacancies. Just very briefly, 24.2.2 – that has been conceded by the respondent in their material that they did not comply with, that they did not notify all pilots of the vacancy. 24.2.4 makes reference to filling the positions based on the standing bid and the pilot meeting the criteria. We might add at this juncture that Mr Croal had a standing bid, as we indicated, and that he meets the requirements for the New South Wales contract which is the relevant contract at least equal to or greater than those who were appointed externally over him.
PN14
24.2.5 deals with, as I indicated, seniority. 24.2.7 provides for what happens if there is no standing bid. We would submit in that instance it's not relevant because there was, I might say at this point, at least one standing bid and I'll elaborate on that very, very shortly. 24.2.8 applies where positions are advertised internally but I might say that in terms of advertising that only occurs where there is no standing bid current. As I indicated before, there was at least one standing bid current, being Mr Croal's, so 24.2.8 ought not be enacted in this setting in fact.
PN15
24.2.9 provides what the company must do in circumstances where clause 24.2.5 is, shall we say, not met and that requires the parties to get together to confer and to try and – not to try and find a solution, Deputy President, actually to achieve a solution. They are compelling words, not discretionary words. The parties are required to achieve a solution. 24.2.12 provides an option for transitional training for a pilot in order to provide - in that transitional training it's training in order to gain a relevant endorsement. In this case for Mr Croal that would've been training to obtain the endorsement for the AW139. It also provides an opportunity for that pilot to undergo that transitional training either at their existing home base or at what would be the new home base.
PN16
In Mr Croal's case, to give it some relevance, what that means is that he could either have stayed at Williamtown and done the 139 training which would not have involved any relocation inconvenience for him, nor cost for the company at that point or alternatively he could have been redeployed, if I can call it that, or based at Wollongong and done the training there. That would have had the inconvenience of those two things that I referred to. That's why that clause was put into the agreement, to accommodate particular situations.
PN17
Your Honour, I indicated that there was at least one standing bid for Wollongong and where there is at least one standing bid all of clause 24.2 is enacted. It is unambiguously required to be enacted. The positions are meant to be advertised. That's meant to be the first thing and then once there's one standing bid, all things flow from that. There are in fact in this situation three pilots who had standing bids for Wollongong. We had Mr Tweedie who we are already familiar with. As I indicated earlier, that standing bid and the settlement to that dispute was seeking transfer to Wollongong ultimately. Another pilot, a Captain Sincich, had a standing bid in for Wollongong and that is uncontested at least in the respondent's material and we have Mr Croal and we know Mr Croal's circumstances.
PN18
So we would say that regardless of any construction at least one pilot, if not three, had current standing bids for Wollongong. On that basis the company was compelled to comply with 24.2.2, 24.2.4 and 24.2.5 and, as a result, clause 24.2.7 is rendered moot or nugatory, if that is the correct term. I might also add - - -
PN19
THE DEPUTY PRESIDENT: Can I interrupt you there for a moment to ask if your understanding of the meaning of 24.2 is that that's a subclause of clause 24, filling of vacancies? That would always need to be implemented in the sense that it was relevant based on the conditions or exceptions contained within its subparagraphs, or is it only enlivened by the existing of at least one standing bid?
PN20
MR STEPHENS: I think that's probably correct, the latter. If there were no standing bids, then the company can go straight virtually to 24.2 and start advertising for it.
PN21
THE DEPUTY PRESIDENT: Yes, but the company would nevertheless go to 24.2.7 which is part of 24.2.
PN22
MR STEPHENS: If there were no standing bids.
PN23
THE DEPUTY PRESIDENT: Yes.
PN24
MR STEPHENS: Your Honour, we would submit that at all material times both Mr Croal and Captain Sincich met the requirements for Wollongong with this caveat: again to the same extent as the external candidates did. Neither Mr Sincich nor Mr Croal held the relevant endorsement. We know that, nor did they hold by definition the relevant number of hours on type. By reference to "on type" that means the type of aircraft. In this case the type of aircraft is the 139, but I might also add nor did the external candidates who were appointed over Mr Croal. It follows that the company had an unequivocal obligation to notify all vacancies and to apply the standing-bid process. It did not and in terms of Mr Croal it appears from the material that we have before us that he has been disadvantaged as a result of being on family leave. Any concerns that the company had about his recency of flying were not and are not insurmountable and by the time training was being provided to the external recruits any concerns were largely resolve. Mr Croal had been back flying nigh on six months now.
PN25
Mr Croal is entitled to the opportunity his standing bid and seniority affords him. It's really important that I stress this, your Honour. This is not from our perspective a contest about the skills, competence, qualities, personalities, characteristics, anything of that nature between Mr Croal and the two external candidates. We do not reduce it to that. This is about the agreement and a pilot's rights under the agreement; nothing more; nothing less. So we are not asserting that Mr Dixon or Mr Frankel, the two external candidates, are not capable. We reiterate this is not about merit. This is about the agreement.
PN26
The standing bid – and you will no doubt hear, as you have not already read, there is some material that suggests what the consequences of these proceedings are if the commission is with us in this case, an assertion, for example, that Mr Croal will be ordered by – no, not Mr Croal but the company will be ordered by the commission to put Mr Croal into Wollongong. Let me just put this into context. The standing bid and the seniority only afford a pilot the right to be considered and assessed through the formal training process. If they fail in that training, the company moves on. It does what it needs to do. It can recruit externally if there are no other standing bids.
PN27
If there are other standing bids, it goes to those pilots with the standing bids. It is not (indistinct) one little bit to the extent suggested it is. If, however, the pilot succeeds in that training, clearly by definition they have met the standards required. If they have got all the qualifications, they've got the right endorsement, the relevant endorsement, they are then entitled to take up the post and in this case for Mr Croal to take up the post in Wollongong so it is not about us asking the commission to put him into Wollongong. That is a product of and only a product of him successfully completing the training on the 139.
Now, as I said before, clause 24.2.12 contemplates that and that actually brings it together where it makes clear that that training and that assessment can either be done at the pilot's existing base or, if the parties agree, at the new base. Mr Croal is not averse to doing the training at Williamtown where he's presently based, of course. So this application seeks to do no more than to afford Mr Croal the right to be assessed and to be trained. It is not about, as being suggested by the respondent, the commission ordering that he be transferred to Wollongong. Such a transfer – and I know I'm restating but it's a very, very important point – would only occur if and when Mr Croal was successful in training. Your Honour, they're our opening submissions. Unless there are any particular questions you may have, at this point we would like to call Mr Croal.
<DAVID CROAL, CALLED [11.44AM]
PN29
THE DEPUTY PRESIDENT: Certainly, yes. Correct me if I'm wrong, but I don't think there is already on file a witness statement for Mr Croal, or is there?
PN30
MR STEPHENS: On file?
PN31
THE DEPUTY PRESIDENT: Has a witness statement been - - -
PN32
MR STEPHENS: Has a witness statement filed?
PN33
THE DEPUTY PRESIDENT: Yes.
PN34
MR STEPHENS: My apologies, yes, your Honour.
PN35
THE DEPUTY PRESIDENT: I will just have to find it then in the file, sorry.
PN36
MR STEPHENS: We have got the original so we're happy obviously to photocopy it, if need be.
PN37
THE DEPUTY PRESIDENT: Just bear with me. It will be easier for you if I can mark the one that's on the file. It would help if I was looking at Mr Croal's file and not Mr Tweedie's file. Do you just happen to have the date upon which that was submitted because material came in sequentially?
PN38
MR STEPHENS: It's dated 27 May, your Honour. I know that much.
PN39
THE DEPUTY PRESIDENT: It probably arrived with your submissions so it's probably sitting behind - - -
PN40
MR S. BAKEWELL: It's my recollection it was a package.
PN41
THE DEPUTY PRESIDENT: Yes, thank you. Yes, I have found it. It's AFAP8 attached to your submissions.
PN42
MR STEPHENS: Yes.
PN43
THE DEPUTY PRESIDENT: In a moment, when you tender it, I will mark it.
PN44
MR STEPHENS: Thank you, your Honour.
THE ASSOCIATE: Please state your full name and address?---David Croal, (address supplied).
<DAVID CROAL, AFFIRMED [11.46AM]
<EXAMINATION-IN-CHIEF BY MR STEPHENS [11.47AM]
PN46
MR STEPHENS: Mr Croal, could you, please, for the commission state your full name, address and occupation?---David Croal and I live at (address supplied) and I'm a captain at Williamtown.
PN47
How long have you held the position of captain with the company CHC?---I've held the position of captain for 25 years and I've been at Williamtown since 2000.
PN48
And how long have you been a pilot for?---29 years.
PN49
I think I just jumped ahead of myself. Anyway, I shall backtrack. Mr Croal, did you for the purpose of these proceedings prepare a witness statement?---Yes.
PN50
Do you have a copy of that with you?---Yes.
PN51
Is that witness statement some two and a half pages long with 21 paragraphs?
---Yes.
PN52
And is it unsigned but dated 27 May 2014?---Yes, it is.
PN53
Is it accompanied by three attachments each marked CROAL1, CROAL2, CROAL3?---I don't have those attachments.
PN54
Perhaps I will hand these to you. Do you recognise those attachments?---Yes, I do.
PN55
Were they part of the attachments to your witness statement?---Yes.
PN56
That witness statement – is that true and correct in every way to the best of your knowledge?---Yes, it is.
**** DAVID CROAL XN MR STEPHENS
PN57
Deputy President, I tender that.
THE DEPUTY PRESIDENT: Yes, thank you. I will mark that as AFAP2.
EXHIBIT #AFAP2 WITNESS STATEMENT OF DAVID CROAL DATED 27/5/2014 WITH THREE ATTACHMENTS
PN59
MR STEPHENS: Thank you, your Honour.
PN60
Now, I just want to put a couple of things. Mr Croal, could I take you to paragraph 18 of your witness statement? This is on page 3?---Yes.
PN61
The date appears out of context. I just wonder if you could just explain what that is in reference to?---This paragraph 18?
PN62
Yes?---It discusses that I contacted the AFAP to advise them of the situation that the company hadn't referenced their response, the letter, when applying for the position and they'd come in an absence of two years, therefore I was in lack of flying practice, but to follow on at the end this was my status in October 2013, other than at the time I had been on parental leave or 18 months so that stage I'd been on parental leave for 18 months and there was a vacancy advertised in Sydney on the Air New South Wales contract and the company advised me to apply for that if I would like to. So therefore in the current situation they said I was not qualified or not acceptable because of my lack of flying experience but some six months earlier they advised to apply for a job on the contract in Sydney.
PN63
Now, you're aware that in reply to your submission and witness statements the respondent submitted a supplementary witness statement
through Mr Howe?
---Yes.
**** DAVID CROAL XN MR STEPHENS
PN64
Now, do you have a copy of that witness statement with you?---I do.
PN65
The supplementary witness statement. If you don't - - -?---I do have it.
PN66
- - - we have a spare that I can - - -?---Yes, I have it here.
PN67
Is that dated 26 June 2014 and signed P.J. Howe?---Yes, it is.
PN68
And it's a witness statement for Peter Julian Howe with four paragraphs?---Yes.
PN69
I just want to take you to two aspects of Mr Howe's supplementary witness statement. At paragraph 3 of his supplementary witness statement he refers to paragraph 7 of the – he refers to the AFAP's outline of submissions. He says he cannot recall contacting Croal in October-November 2013 regarding Captain Busch's appointment in Sydney. What do you say to that?---I can confirm that he did contact me in relation to that and I'd had significant contact with Mr Howe over another position regarding the 139 operated from Williamtown as a relief pilot. I have email correspondence to the extent to verify that and Mr Howe talked to me – referenced Busch's appointment whether I could return to Williamtown base early to cover – so Leon could be - Mr Busch, sorry, could be removed to commence his 139 training and I advised him at the time that I could return on a full-time basis if I was to commence 139 training and on a part-time basis to return to Williamtown.
PN70
THE DEPUTY PRESIDENT: Just before you move on from that point, Mr Stephens, it references paragraph 7 and I think a moment ago you thought it was in relation to paragraph 7 of the applicant's outline of submissions which seems to refer to the unsuccessful attempt to resolve the matter by conciliation rather than the request to apply for the Sydney role. So I thought it best just to run that to ground now as we will probably forget to do so later.
**** DAVID CROAL XN MR STEPHENS
PN71
MR STEPHENS: Yes.
PN72
THE DEPUTY PRESIDENT: I have also checked Mr Croal's witness statement but his paragraph 7 isn't related to that question either.
PN73
MR STEPHENS: Yes, perhaps the reference to the paragraph number is not so much relevant, rather the commentary that he adds.
PN74
THE DEPUTY PRESIDENT: So which paragraph number would it be, do you think? Is it in the submissions? Would it perhaps be in the
chronology?
---Your Honour, if I may.
PN75
Yes, certainly.
PN76
MR BAKEWELL: I think it's the applicant's submissions in reply.
PN77
THE DEPUTY PRESIDENT: Very good; thank you for that help.
PN78
MR STEPHENS: Yes.
PN79
THE DEPUTY PRESIDENT: It's just best for the sake of the record. Yes, I do see that now.
PN80
MR STEPHENS: Yes.
PN81
THE DEPUTY PRESIDENT: Excellent, thanks. Please go on.
PN82
MR STEPHENS: Thank you, your Honour.
**** DAVID CROAL XN MR STEPHENS
PN83
Mr Croal, you have before you Mr Howe's supplementary statement. Paragraph 4 refers to your flying hours since 2011 or mid-2011. What do you say about those hours that he's attributed you with?---They're not correct - 100 per cent correct there. I can confirm that he states that in July 2011 till the end of the year I did 14.8 hours. I actually did 25.5 hours, and prior to that he states that I actually renewed my instrument rating on 3 May 2012 which was only a year and a half before my return. I didn't actually renew my instrument rating at that time. I conducted an instrument-rating test for a pilot in another company on behalf of CASA and at that time I also did some revalidation checks for myself but not an instrument-rating test and I actually did four or 3.9 hours flying for that other operator in recurrency and testing.
PN84
That instrument rating that you did for the other pilot and the other company – are any of those hours attributable to you?---Yes, they were all attributable to me.
PN85
So those hours would have accrued. When did you do your instrument rating?---I did my instrument rating in July 2011 and that formed part of the 25.5 hours.
No more questions then, thank you, your Honour.
<CROSS-EXAMINATION BY MR BAKEWELL [11.56AM]
PN87
MR BAKEWELL: So, Mr Croal, just by way of clarification I might just, firstly, start with the issue that was raised by you in reference to Mr Howe contacting you about Captain Busch?---Yes.
PN88
Am I right in summarising your evidence that Peter Howe spoke to you about covering the absence of Captain Busch in Williamtown?---Yes, he did.
PN89
Yes, and by covering Captain Busch's absence that would mean you flying the aircraft that you would normally fly in Williamtown?---Yes.
**** DAVID CROAL XXN MR BAKEWELL
PN90
And that aircraft is?---The Sikorsky S-76.
PN91
Thank you. The issue of flying hours which Mr Stephens just took you to – you have stated that the amount of flying that you had in your estimation for the period - I think you said the period from July 2011 to the end of 2011 was 25 hours and you took that as a correction in respect to what Mr Howe has stated in his supplementary statement. Is that right?---Yes.
PN92
Therefore, am I right in going further than that – if I can take you to that supplementary statement of Mr Howe, he says that based on his records you flew approximately two hours in 2012?---That's what he stated.
PN93
I take it you don't take issue with that?---I did correct that, that I flew 3.9 hours.
PN94
Did you say three hours or 3.9 hours?---3.9 hours.
PN95
Thank you. He says zero hours in 2013?---Correct.
PN96
And he states in the period ended 28 February 1.6 hours?---Correct.
PN97
Would I also be right in suggesting that for the period March 2014 the flying principally that you did in that time would have been in relation to checks that you would have been undertaking with the company to make your recurrent?---Yes, that's correct.
PN98
So in reference to that flying time or that flying experience that you had, as at the end of February 2014 it would be correct to say you had very little recent flying experience at that point of time?---Yes.
**** DAVID CROAL XXN MR BAKEWELL
PN99
Are you in your knowledge and history of flying aware of the concept of degradation of flying skills resulting from not flying regularly?---I understand the term and the meaning, yes.
PN100
And at the base that you are at, is it a base that conducts a lot of flying or is it a base that routinely would conduct a relatively low level of flying in your experience?---It's a relatively low level of flying.
PN101
Compared to what, for example?---It's too variable to compare, I would suggest.
PN102
For example, you've worked in EMS previously?---Yes, I have.
PN103
So if you compared it to flying at EMS, would you regard it as a relatively low level of flying compared to an EMA operation?---I would suggest it would be less than EMS, yes.
PN104
At the base that you are at which, as I understand, is an RAAF search and rescue base, do you have to routinely conduct exercises or flying drills that are not related, if you like, to an on-demand incident?---Routine training; yes, you do routine training.
PN105
And what type of routine training would that be?---That would be winching exercise, a day land, night land, over-water winching day and night, single-person stretcher winching, winch transfers, highline training, instrument flying and night sun approaches into remote hills.
PN106
Which would effectively cover the vast majority of the types of skills that I guess you would deploy on a contract like that?---Yes.
PN107
How often would you conduct those type of training drills?---We would conduct those type of training drills every week.
**** DAVID CROAL XXN MR BAKEWELL
PN108
In terms of outside of those training drills, in terms of actually responding to, let's call it, an incident – something happens and you have to be deployed directly to go and conduct a search-and-rescue task. On average, how often does that happen at Williamtown?---Well, the crash alarm would go off every day where you have to attend the aircraft and prepare it for departure to a given location. However, to actually get airborne doesn't generally occur.
PN109
Doesn't generally occur, so once every three months, once every six months?
---Once every three months. However, you attend it on a daily basis.
PN110
So would I be correct in summarising that the drills that we've spoken of or the drills that you do would be for the purpose, let's say, of keeping those skills and your situational awareness, if you like, sharp, current, up to date?---Yes.
PN111
So that if an incident did happen, there'd be no question about your ability to deploy those skills, for example?---Yes.
PN112
If you didn't do those drills, if you didn't do those things, I could suggest to you that your skills perhaps wouldn't be as sharp. You might not be as ready to respond to an incident. Would that be a fair summary?---In your words, yes, you wouldn't be as sharp; still got the ability to respond though.
PN113
I have no further questions for the witness.
PN114
THE DEPUTY PRESIDENT: It may be a good time for me to ask you some things and then Mr Stephens can pick up anything and obviously I will give Mr Bakewell an opportunity if I raise anything new. So I'm really interested in following through that line of logic. I take it in my simple way of thinking about it there would be the readiness of the aircraft and equipment that would need to be constantly assured. There would be the sharpness, to use Mr Bakewell's term, of the skills of the operators of the equipment which is not just yourself but others as well. That's in relation to the equipment that you are routinely required to use and that's one set of training that would be constant or drilling, if you like, for training, but what's the different approach that's taken when you're changing type of aircraft or type of equipment and different purpose?---The type of training is to equip you primarily with the systems of that aircraft and deal with any emergencies which may arise through system failure and as far as the different need, ie, EMA versus SAR, what the client requirements are is considered to be called line training and you would be provided with line training to prepare you for the situations which may arise from there.
**** DAVID CROAL XXN MR BAKEWELL
PN115
As far as you're aware, is there a protocol on the duration of that kind of training and its frequency?---Yes, there is.
PN116
Can you recall what that is?---There's a syllabus and it varies on whether it's SAR, EMS or offshore. It has a different syllabus on the training you must undergo and then there's annual line checks for that operation – particular operation.
Does that protocol indicate that there are any differences in the duration or frequency of that training, depending upon the experience
or the recent practice that the person has had on their other aircraft type and their other purpose?
---There's a recency requirement on each type of operation you're required to do within your particular operation, ie, if it's EMS
or SAR, it's winching every so many days. It's instrument – every operation has an instrument requirement every so many days
and there'll be boat winching every so many days, night work X days, so it lists the whole protocol for every operation and it doesn't
– it's not determined by experience or recency. The only recency is that you must've done it. Within, say, 90 days you must've
requalified that skill.
<RE-EXAMINATION BY MR STEPHENS [12.07PM]
PN118
MR STEPHENS: Mr Croal, Mr Bakewell asked you questions about your recurrency and your recurrent training. When were you due to return from family leave?---I was due to return on 1 February 2014.
PN119
When did you return?---17 February 2014.
PN120
Why was there a delay of 16, 17 days?---The company asked me to extend my leave for a period of time.
PN121
The company approached you to delay return?---The company approached me, correct, yes.
**** DAVID CROAL RXN MR STEPHENS
PN122
If you were due to return then on 1 February, when would you have commenced your recurrency?---I assume I would've commenced it on 1 February.
PN123
If you had've commenced on 1 February, when would you have ordinarily completed it?---I would've completed it based on the time taken in my log book within 12 to 14 days so 12 – 14 February.
PN124
14th you would've completed that?---Yes.
PN125
And when did you commence your recurrency then?---I was only able to get one flight in in February which I the 1.6 hours noted by Peter Howe and that was due to the fact that the aircraft was unserviceable for the whole time. I then had to relocate to Amberley to complete my training – find a serviceable aircraft to complete my training which was completed in 11 days.
PN126
So when you say it was unserviceable, am I right in assuming that means that there was not an aircraft available for you to fly in because it was not mechanically sound?---Correct.
PN127
And that delayed, did it, your commencing of your training?---It delayed the commencement of the training and the completion of the training.
PN128
When did you then commence it?---I'll have to get my logbook, sorry. Okay. I returned to work on 17 February to commence my training. However, the aircraft was unserviceable other than the one flight I managed to get in on 25 February. I then relocated to Amberley to commence training. The first flying was on 10 March and I was completed by 21 March.
PN129
Could I just ask you – I note that you're referring to a book you. What is that book?---This is my logbook, pilot's logbook.
**** DAVID CROAL RXN MR STEPHENS
PN130
THE DEPUTY PRESIDENT: Is that something the respondent would like to see?
PN131
MR BAKEWELL: No, we're aware of the logbook and hence the figures that were extracted by Mr Howe so we have no issues with that, your Honour.
PN132
MR STEPHENS: In relation to the skills that you're required to undertake, Mr Bakewell took to you the notion of degradation of skills and so on. Are you required to operate over water in SAR?---Yes, we are.
PN133
Are EMS pilots required to operate over water?---They're required to operate over water and can only achieve the water-winch rescue in day operations only. They're not – they don't have the equipment which SAR has to effect night over-water operations. It's a specialty in itself.
PN134
And you do over-water day operations with SAR?---Day and night, yes.
PN135
Do both SAR and EMS do over-land operations?---Yes, they do.
PN136
They both do winching. Do they auto hover?---SAR is the only outfit that does auto-hover operations.
PN137
Are there any other comparable skill requirements between the two operation groups?---I would've thought most would be comparable to each other, hence why I was a check and training captain on both for many years.
PN138
They both do repelling, for example?---Yes.
PN139
We know they both do winching. There's nothing necessarily within the EMS operation that you wouldn't do in some form at least within
SAR operations?
---Correct.
**** DAVID CROAL RXN MR STEPHENS
PN140
Thank you, your Honour.
PN141
THE DEPUTY PRESIDENT: Mr Bakewell, does that raise anything you would like to address?
PN142
MR BAKEWELL: Yes, thank you, Deputy President. I was going to object but I thought I'd rather address this issue through yourself. I think a number of those matters in the end weren't strictly arising out of the questions that had been posed, particularly the issues - - -
PN143
THE DEPUTY PRESIDENT: No, but they might have arisen out of my questions.
PN144
MR BAKEWELL: They might well have, but I might be able to clarify just a couple of the points that were raised by Mr Stephens.
THE DEPUTY PRESIDENT: Yes, by all means.
<FURTHER CROSS-EXAMINATION BY MR BAKEWELL [12.12PM]
PN146
MR BAKEWELL: Mr Stephens just took you briefly to some of the issues of comparability between the EMS and the SAR work. Is it correct
based on your understanding that SAR operations consist of a two-pilot configuration, that is, captain and a co-pilot, whereas EMS
operations is captain only, no co-pilot?
---Correct.
PN147
And hence in an EMS operation all of the responsibility, all of the backup, in effect, rests just with the captain in terms of decision-making?---All of the responsibility rests with the captain in any operation in aviation, full stop.
**** DAVID CROAL FXXN MR BAKEWELL
PN148
Yes, but there's no-one to fall back to. There's no backup?---The responsibility, to answer your question, falls with the captain regardless of how many crew you have on.
PN149
Yes, I understand that, but in terms of who else can you take assistance from, who else can you seek the views of, who else can contribute to issues that might arise in the cockpit, there is no-one to do that other than relying on yourself in an EMS operation?---No, that's not correct. The operation operates with a single pilot and a single crewman and the crewman's trained to assist the pilot with navigation, emergency operations and decision-making.
PN150
So is it your evidence that in terms of flying the aircraft the crewman is giving you advice and assistance in terms of how to fly the aircraft?---No, I'm by no means suggesting that he's giving advice on how to do it. He's giving assistance to the captain, as he could in any operation.
PN151
Mr Croal, is the crewman qualified – licensed to fly an aircraft?---No, he's not licensed.
PN152
Is he trained to fly an aircraft?---He's not trained to fly, no.
PN153
Is he trained in emergency procedures on how to recover an aircraft that might have lost an engine?---No, but as far as losing an engine, he is trained by the company to give assistance in emergency situations so losing an engine is a matter of going through a procedure.
PN154
By contrast, is a first officer trained to fly an aircraft?---Yes.
PN155
Is a first officer trained to recover an aircraft that might have lost an engine - required to land in an emergency?---He's required – he's trained to assist, yes.
**** DAVID CROAL FXXN MR BAKEWELL
PN156
Generally, are they trained to a standard that would be comparable of a captain?
---No.
PN157
In terms of flying skills?---No.
PN158
Do they sit the same instrument tests?---No.
PN159
Explain to the commission the difference, please?---The commander has to fly the instrument test at a satisfactory level as a captain to handle emergencies himself and in multi-crew with – provide CRM, crew resource management, so discussion with the other pilot to achieve a satisfactory safe outcome in emergencies. The commander has to handle in-flight emergencies to a greater difficulty than a first officer, the co-pilot, whichever you'd like to describe them as, and therefore a co-pilot is not trained to any extent as the same level as a captain.
PN160
And by contrast to the crewman in handling those emergencies, is he there giving you help, guidance, assistance in respect to an instrument landing, for example? He's not, is he?---No, that's incorrect. The crewman can – you can ask for advice on numbers, distances to run. It's all advisory but it is of assistance.
PN161
I have no more questions for the witness, thank you.
**** DAVID CROAL FXXN MR BAKEWELL
PN162
THE DEPUTY PRESIDENT: Thank you. Nothing arises?
PN163
MR STEPHENS: We have no questions.
PN164
THE DEPUTY PRESIDENT: Very good.
PN165
Thank you very much, Mr Croal?---Thank you.
That's been helpful and very interesting as well. You are excused.
<THE WITNESS WITHDREW [12.17PM]
PN167
THE DEPUTY PRESIDENT: Do you have any further witnesses, Mr Stephens? Is Mr Croal your only witness today?
PN168
MR STEPHENS: Yes, I did say that.
PN169
THE DEPUTY PRESIDENT: You did and I overlooked it, yes. Mr Bakewell?
PN170
MR BAKEWELL: Thank you, Deputy President. At this stage I won't make any introductory comments. I would prefer if it is consistent with the process that you might expect that we will summarise our case.
PN171
THE DEPUTY PRESIDENT: Certainly.
PN172
MR BAKEWELL: Particularly I'd like to take you to not just the outline of our submissions but the respondent's view about the agreement, most particularly in the way that it operates, as there are a number of issues that we don't respectfully agree with Mr Stephens about.
PN173
THE DEPUTY PRESIDENT: Yes.
MR BAKEWELL: That brings us to our first witness and we would like to call Captain Tim Frankel, please. I believe he's probably waiting outside.
<TIMOTHY FRANKEL, CALLED [12.18PM]
PN175
THE DEPUTY PRESIDENT: I might use the time for me just to locate Mr Frankel's statement.
PN176
MR BAKEWELL: Certainly.
PN177
THE DEPUTY PRESIDENT: Was it attached to the respondent's outline of submissions or was it separately admitted?
PN178
MR BAKEWELL: My recollection is that it may well have been attached as one PDF.
PN179
THE DEPUTY PRESIDENT: I will start from the beginning of the file because attached to the respondent's outline of submissions I have Mr Howe's first statement.
PN180
MR BAKEWELL: Correct.
PN181
THE DEPUTY PRESIDENT: I don't see another statement.
PN182
MR BAKEWELL: There should have been Peter Howe's statement together with the attachments to his statement and then separately statements for Mr Frankel.
PN183
THE DEPUTY PRESIDENT: Sorry, Mr Frankel, we are just making sure that I have got the relevant documentation. It looks like I have located a witness statement for Timothy Frankel. It looks like it's been scanned.
PN184
MR BAKEWELL: Yes, it has.
PN185
THE DEPUTY PRESIDENT: Yes, so go ahead, Mr Frankel, thank you.
THE ASSOCIATE: Place your right hand on the Bible. State your full name and address?---Timothy Frankel, (address supplied).
<TIMOTHY FRANKEL, SWORN [12.20PM]
PN187
MR BAKEWELL: Deputy President, perhaps before your associate sits down I might ask that Mr Frankel be shown a copy of his statement, please.
THE DEPUTY PRESIDENT: Certainly.
<EXAMINATION-IN-CHIEF BY MR BAKEWELL [12.20PM]
PN189
MR BAKEWELL: Tim, can I ask you to, please, have a look at that document that I have just provided to you and whether you can, please, confirm to the commission that that is the statement that you have provided in relation to these proceedings?---That is indeed the statement, yes.
PN190
And that is true and accurate to the best of your knowledge?---It is.
PN191
Thank you. Deputy President, we seek to tender the witness statement of Mr Frankel.
THE DEPUTY PRESIDENT: Thank you. I will mark that as CHC1.
EXHIBIT #CHC1 WITNESS STATEMENT OF TIMOTHY FRANKEL
**** TIMOTHY FRANKEL XN MR BAKEWELL
PN193
MR BAKEWELL: Thank you, Deputy President. I have no supplementary questions for the witness.
<CROSS-EXAMINATION BY MR STEPHENS [12.21PM]
PN194
MR STEPHENS: I just want to take you through your witness statement and hopefully this won't take too long. Do you have it in front of you?---I do, yes.
PN195
Could I just ask you, please, to go to paragraph 5? That starts off with the words "I was advised verbally that"?---Yes.
PN196
Does that follow on from the conversation of the last sentence in the preceding paragraph?---No, it doesn't.
PN197
When were you advised - - -?---In September. So I interviewed in September. I was advised in October last year that was a cleared for hire.
PN198
So it in fact does follow on from the preceding paragraph because it says in the preceding paragraph "Based on my interview in September 2013 I attended", et cetera, et cetera, at that time which is September 2013?---Yes, sorry, in time terms it does.
PN199
Yes, that's September 2013. Just very quickly then, can I take you through to paragraph – it's going to be a little bit over the place, but at paragraph 4 you say that at the time you expressed the desire to be employed as an EMS pilot at Bankstown or Wollongong?---Correct.
PN200
At paragraph 7 you said that Bankstown and Wollongong – you would've considered those positions?---Yes.
PN201
Yes, and at nine, "I had assumed that it'd be more likely that I'd be offered a job at Bankstown"?---Correct.
PN202
Yes, and at paragraph 12 you would only have accepted a job offer at either Wollongong or Bankstown?---Correct.
**** TIMOTHY FRANKEL XXN MR STEPHENS
PN203
Just to be clear, is it your evidence that you would've accepted a position at Bankstown if offered?---I would have, yes.
PN204
At paragraph 10 the New South Wales contract – sorry, the EMS is New South Wales contract. That covers, am I right, Bankstown,
Wollongong and Orange?
---Yes.
PN205
Am I right that both Wollongong and Bankstown operate the 139?---That is correct.
PN206
Now, at paragraph 13 you refer to your family. The last sentence of paragraph 13 refers to your wife's position with BHP Billiton in Wollongong?---Yes.
PN207
Was your wife employed by BHP Billiton in January 2013?---She was.
PN208
And in January 2014?---She was.
PN209
And March 2014?---Yes.
PN210
And April 2014?---Yes.
PN211
So it's true then that while you were – and you were commuting - prior to starting at CHC you were commuting to Sydney, weren't you?---I was.
PN212
What's the suburb?---Where I was commuting to?
PN213
Yes?---I was temporarily commuting to Paddington but for the previous three years I was commuting to Holsworthy.
**** TIMOTHY FRANKEL XXN MR STEPHENS
PN214
So for all of that time that you were commuting your wife was working at BHP Billiton?---Yes.
PN215
At paragraph 14 you refer to, "If CHC tried to transfer me to another contract" – my apologies, "to another EMS base" - you refer there to Canberra or Orange. What's the aircraft operated out of Canberra?---412.
PN216
Are you endorsed in the 412?---I am not.
PN217
They couldn't transfer you there, could they?---They could; of course they could because they just need to train me on the 412.
PN218
That's right. They'd have to train you on it, wouldn't they?---They would.
PN219
What do they operate are Orange?---EC145.
PN220
Are you endorsed on the 145?---No.
PN221
And Bankstown operate the 139?---Correct.
PN222
Have you completed the endorsement?---I've got my endorsement, yes.
PN223
When did you complete that?---I completed my endorsement last week.
PN224
Last week, okay?---Although I haven't finished my line training which is a little bit different.
PN225
Do you know when that's due to commence?---Couple of weeks.
PN226
At paragraph 15 you refer there to the time involved in commuting to and from Wollongong and Sydney?---Yes.
**** TIMOTHY FRANKEL XXN MR STEPHENS
PN227
That's what you've been doing for the last two to three years, isn't it?---It is.
PN228
Did the company at any stage in this process indicate to you what your entitlements might be if you were to be based in Bankstown?---Entitlements in terms of my salary?
PN229
Yes?---The company didn't but I've read the EBA.
PN230
Yes, and is it true that if you were based in Bankstown but live, for example, in Wollongong, you would be entitled to a Sydney allowance?---That's correct.
PN231
How much is that Sydney allowance worth? Do you know?---Roughly $10,000.
PN232
It's roughly 11 and a half thousand. If I put that to you, would you question that?
---No.
PN233
That's covered in the EBA?---Yes.
PN234
So any cost associated with commuting to Bankstown from Wollongong will be offset by an 11 and a half thousand dollar allowance that increases each year with CPI?---Only financial cost.
PN235
Yes, and the personal cost is not different to what you've been experiencing in the last two to three years at any rate?---No, it isn't; no, although that's one of the reasons I'm leaving the army.
PN236
At paragraph 16 you refer there to, "If as a consequence of this dispute I was forced into an offshore touring position working two weeks on, two weeks off" – you refer in there to the consequence?---Yes.
**** TIMOTHY FRANKEL XXN MR STEPHENS
PN237
Do you have a copy of Mr Howe's witness statement or have you seen Mr Howe's witness statement?---I have not.
PN238
I'll just try and get you a copy of that. If I could take you to the main part of the witness statement, it's the very, very last page at paragraph 85 to 87 in fact. It says there at paragraph 85 "In the case of Dixon and Frankel" – I might call you Tim if that's okay?---That's fine.
PN239
"We would have to either redeploy them or terminate their contract of employment and that's not an option to the company"?---Yes.
PN240
They're giving you unequivocal commitment there that they will not do anything detrimental to you?---Yes.
PN241
They will not sack you?---Yes.
PN242
Do you accept that?---I accept that.
PN243
At paragraph 87, do you recognise there that the company acknowledges that – and I say this with the greatest level of respect – you're not qualified for oil and gas?---Yes, I accept that.
PN244
So they couldn't redeploy you to oil and gas, could they?---No.
PN245
So you would have no fear then about being forced into an offshore touring position?---Depending on which contract. There are pilots who have got less experience than I have who have been employed in offshore.
PN246
Yes, but the company here is saying that you're not qualified, are you? It would be a contradiction if they then turned around, wouldn't it? You can't go to Latrobe, can you, because that's a closing base?---That's correct.
**** TIMOTHY FRANKEL XXN MR STEPHENS
PN247
Other than needing to be provided with the training, you don't have the endorsements to be deployed to Orange or Canberra, do you?---No.
PN248
You've been with the company for less than 12 months so you're restricted from putting in a bid?---That's correct.
PN249
And you could only move somewhere to a position where there was a vacancy?
---Yes.
PN250
Yes, and you could only move somewhere where there was a vacancy provided a person didn't have a standing bid in for that position?---Yes.
PN251
There's really not a log of prejudice to you, is there?---No.
PN252
Just before I move on, is it your position that upon reflection through that line of questioning that there is no consequence for
you in relation to offshore?
---Absolutely, yes, although I'll be very about my statement. I have received no formal advice that – I've been given no commitment
other than verbally from CHC that they will not move me but nothing in writing and, further, when I made the statement, I had no
– I hadn't been provided with any verbal advice at that point either.
PN253
Right?---That's why the statement is written the way it is.
PN254
Are you confidence of this statement now given in evidence – that will be given in evidence by Mr Howe that they won't be moving you to oil and gas?---I am comfortable with that, yes.
PN255
Just very quickly now, are you still on leave from the army?---I am.
**** TIMOTHY FRANKEL XXN MR STEPHENS
PN256
When does that run out?---February.
PN257
February next year?---Yes.
PN258
Is that long service leave or something?---It is, yes.
PN259
What happens? Does the army hold your position? How does that work?---Yes, they do, as in I'm not – even whilst my discharge is being processed that position cannot be filled until I'm out.
PN260
So that position is still sitting there?---Say again?
PN261
That position is still sitting there with your name on it, if I can put it that way?---It is, but that hasn't - doesn't reflect any impact on my professionally that has occurred.
PN262
Just to clarify, I think from your resume you hadn't at the time when you commenced employment with the company or been offered the position in Wollongong completed your ATPL?---It's complete.
PN263
But at the time you hadn't?---No; no, when I was offered the job, I had.
PN264
You had done it?---My ATPL was completed last year.
PN265
Command instrument rating, the civil command instrument - I understand you might have an army instrument rating?---I now have a civil one.
PN266
When did you get that?---Last week.
**** TIMOTHY FRANKEL XXN MR STEPHENS
PN267
So at the time you were offered the position you didn't have a command instrument rating?---I didn't, although I had seven military command instrument rating renewals and they are effectively – although they're not considered so by CASA in experiential terms, they're more or less the same.
PN268
But you are obliged to have a civil instrument rating, aren't you?---Correct.
PN269
And at the time when you were offered the position you didn't?---I didn't.
PN270
Have you completed the NVG endorsement?---I haven't.
PN271
You haven't?---No, I haven't.
PN272
So you're still without an NVG endorsement?---Correct.
PN273
Have you started that?---That will start shortly. I'm not sure when.
All right. I have no other questions, your Honour.
<RE-EXAMINATION BY MR BAKEWELL [12.35PM]
PN275
MR BAKEWELL: Mr Frankel, I have one issue of clarification to make. I think Mr Stephens put a question to you which was, in effect, there would be no prejudice to you arising from these proceedings. Now, you weren't in the hearing room at the time but I just want to put a scenario to you and then I'm going to ask you to comment on that. The scenario that is presently being contemplated is a requirement for Mr Croal to be given training on the 139 and the proposition being put by the Australian Federation of Air Pilots, as I understand it, is if you pass that training, the company would then be obliged to put him onto the Wollongong roster, in summary terms?---Mm.
**** TIMOTHY FRANKEL RXN MR BAKEWELL
PN276
Assuming that the Wollongong roster is full and occupied and you are one of the captains operating on that roster, do you see any issue at least in your mind – I know this is difficult to see – with extra captains or extra pilots working on a roster that might already be full?---Yes, look, it increases the degree of uncertainty for all the remaining pilots. So with a four-pilot roster when you've got four pilots on, you have a fixed line. You're able to plan your life out to 12, 18 months, two years even. The trouble with having just four pilots is there's no opportunity to do courses or take leave so in an ideal world you have five pilots. The fifth pilot is referred to as a floater and he fills in the gaps with regard to leave; courses; simulator trips. Now, although it's a bit of a pain for the floater because you cannot plan your life out beyond two weeks, in terms of the greater good the collective benefits because you can take your leave because there is someone to fill the gap for you. Having an additional pilot, creating a requirement for two floaters, just adds an unnecessary degree of uncertainty in your life. So if you're – if they've got – if you're second – if you're the second floater, you're sort of – from a company and base perspective you're floating unnecessarily and therefore you're introducing that degree of uncertainty in your life not being able to plan more than two weeks in advance, noting that we don't get weekends; you know, we go in and out of weekends so you can't plan an activity more than two weeks.
PN277
Thank you. I have no other questions for Mr Frankel, thank you.
PN278
THE DEPUTY PRESIDENT: Thanks, Mr Bakewell. I'm sorry, I lost track of the sequence there for a moment. I referred to you doing cross-examination which you weren't doing with your own witness.
PN279
Anyway, let me ask you a question and then if either of Mr Stephens or Mr Bakewell need to follow up, they may. So tell me about
the aircraft that you were flying in the army? This could be a very long – I could have asked a question that gives a very
long answer, but could you just give me a sense - - -?
---I flew – in the British Army I flew Lynx for about three years. In the Australian Army I flew Black Hawk for 10 years and
it's an aircraft of similar level of complexity to the AW139.
**** TIMOTHY FRANKEL RXN MR BAKEWELL
PN280
And it's the AW139 that you are now flying out of Wollongong?---Correct.
PN281
That somewhat pre-empts my next question. My next question was going to be: to what extent is the experience on different types of aircraft transferable and what is it that needs to in a sense – what gaps need to be filled when you transfer to a new aircraft and specifically the one you're flying out of Wollongong?---The main change is that it's a shift from an analogue dial-driven aircraft so – nonetheless, with a fair degree of automation to a glass cockpit so a computerised aircraft. So although the level of complexity is similar, the interface that you're using is different. So that's the first change. The other change from – fortunately the military regulatory environment is very, very similar to the civil one so in terms of operating environment it's a very – it's a quite straightforward jump and that applies to the instrument flying as well.
PN282
Is it always the case that people moving from one type of aircraft to another and, let's say, a particular type of aircraft to another particular type of aircraft - that it's predictable what their training requirement will be or does it differ from person to person?---It's not just the type that drives the training requirement, it's also experiential. So you can have someone who's on a similar aircraft in terms of its level of automation, glass cockpit, but they're training and their transition onto a new helicopter is probably more determined by their experience than the previous type of helicopter they were flying. It's a combination of the two.
PN283
In your experience, do other individual differences play a part in the amount of time of training or is that more variables that are external to the individual?---No, I think, you know, fundamentally it boils down to you experience and the aircraft types that you've got history on and based on those two things it's quite easy to formulate a training plan for someone.
**** TIMOTHY FRANKEL RXN MR BAKEWELL
PN284
Thank you. Who would like to go first?
PN285
MR STEPHENS: It has invited another question, your Honour, my apologies.
THE DEPUTY PRESIDENT: Yes, certainly.
<FURTHER CROSS-EXAMINATION BY MR STEPHENS [12.40PM]
PN287
MR STEPHENS: Tim, your most recent aircraft prior to CHC was the Black Hawk?---No, previous two years was on a Kiowa JetRanger.
PN288
The Black Hawk – is that two pilot or single pilot?---Two pilot, although when you're an instructor, you operate at – you learn to operate as a single pilot as well and I was a senior instructor on Black Hawk.
PN289
When you're on the line?---No, it's fundamentally a multi-crew aircraft.
PN290
Yes, two pilots?---Correct, but the Kiowa is not.
Yes, thank you. I was asking about the Black Hawk.
<RE-EXAMINATION BY MR BAKEWELL [12.41PM]
PN292
MR BAKEWELL: In terms of the last aircraft type that you were on - - -?---For the last two years the Kiowa.
PN293
Yes?---That's frequently operated single pilot.
PN294
Yes, and based on your understanding of EMS operation, do you see any comparability between the two aircraft and the situations - - -?---The aircraft type not really, although, you know, the requirement to conduct short-notice missions and often be single pilot – there's certainly comparison there.
**** TIMOTHY FRANKEL RXN MR BAKEWELL
PN295
No further questions.
THE DEPUTY PRESIDENT: Very good, thank you?---Thank you.
<THE WITNESS WITHDREW [12.41PM]
PN297
MR BAKEWELL: Can I just take one moment to put my folder back together?
PN298
THE DEPUTY PRESIDENT: Sure.
MR BAKEWELL: In the meantime we intend to call Captain Dixon, please.
<ANDREW WILLIAM ALEXANDER DIXON, CALLED [12.42PM]
PN300
THE ASSOCIATE: Sorry, could you repeat the name?
PN301
MR BAKEWELL: Andrew Dixon.
THE ASSOCIATE: Place your right hand on the Bible. State your full name and address?---Andrew William Alexander Dixon, (address supplied).
<ANDREW WILLIAM ALEXANDER DIXON, SWORN [12.42PM]
<EXAMINATION-IN-CHIEF BY MR BAKEWELL [12.43PM]
PN303
MR BAKEWELL: What I intend to do is show Mr Dixon his statement, please.
PN304
THE DEPUTY PRESIDENT: Yes?---Thank you.
PN305
MR BAKEWELL: Andrew, a document has just been handed to you. Will you just peruse that document and, please, identify whether the statement that is there together with the one attachment represents the evidence that you have provided in this matter?---Yes, that's correct.
PN306
Are you satisfied that that evidence is true and accurate to the best of your knowledge?---Yes.
PN307
If the commission pleases, we seek to tender the witness statement of Andrew Dixon together with the attachment.
THE DEPUTY PRESIDENT: Yes, thank you. I will mark that as CHC2.
EXHIBIT #CHC2 WITNESS STATEMENT OF ANDREW DIXON AND ATTACHMENT
PN309
THE DEPUTY PRESIDENT: Before we go on I will just ask you to identify the attachment because in my version there isn't an attachment. The attachment might be somewhere else in the file but if it's described on transcript, they will be able to find it in due course.
PN310
MR BAKEWELL: If the commission pleases, the attachment ought to be - I think it's the contract of employment or letter of offer from CHC to Andrew Dixon?---That's correct, dated 7 March 2014.
**** ANDREW WILLIAM ALEXANDER DIXON XN MR BAKEWELL
PN311
THE DEPUTY PRESIDENT: I might ask you, if you don't mind, if you have got a spare of that to tender that separately because I definitely don't have that adjacent in my file to CHC2 at this point.
PN312
MR BAKEWELL: Thank you. I will see if we do have a spare here.
PN313
THE DEPUTY PRESIDENT: Otherwise my associate can copy it at the break which, I must say, must be coming up soon.
PN314
MR BAKEWELL: No, that appears to be the only copy that I have.
PN315
THE DEPUTY PRESIDENT: Have you got a copy, Mr Stephens?
PN316
MR STEPHENS: Of Mr Dixon's?
PN317
THE DEPUTY PRESIDENT: Of Mr Dixon's attachment to his statement.
PN318
MR STEPHENS: The attachment?
PN319
THE DEPUTY PRESIDENT: Yes.
PN320
MR STEPHENS: I didn't know there was one.
PN321
THE DEPUTY PRESIDENT: I don't have an attachment either.
PN322
MR BAKEWELL: Perhaps what we might be able to do is - - -
PN323
MR STEPHENS: Sorry, it seems that the attachment is PH8.
PN324
MR BAKEWELL: Thank you. If that is the case, I'll just confirm for the commission that PH8 is indeed the same document.
**** ANDREW WILLIAM ALEXANDER DIXON XN MR BAKEWELL
PN325
THE DEPUTY PRESIDENT: So it's been inadvertently attacked to Mr Howe's statement. Is that right?
PN326
MR BAKEWELL: PH8 at least in my documents is relating to Tim Frankel? Yes, PH7 identifies the resume and behind that is the contract of employment so they are one and the same document.
PN327
THE DEPUTY PRESIDENT: Which is Mr Dixon's material, yes, PH7, which probably shouldn't be there.
PN328
MR BAKEWELL: Correct.
PN329
THE DEPUTY PRESIDENT: I will remove it from Mr Howe's bundle and I will regard it as having been attached to CHC2.
MR BAKEWELL: Thank you, and I have no supplementary questions to ask of Mr Dixon.
<CROSS-EXAMINATION BY MR STEPHENS [12.47PM]
PN331
MR STEPHENS: Andrew, I just want to take you quickly through your witness statement. At paragraph 6 you make reference to your relationship between Peter Howe – sorry, your relationship with Peter Howe, I should say?---Yes.
PN332
It's a long-term relationship?---Yes.
PN333
And you're pretty friendly?---Yes.
PN334
He in fact was a referee for you for the position at CHC, wasn't he?---That's correct, yes.
**** ANDREW WILLIAM ALEXANDER DIXON XXN MR STEPHENS
PN335
And he was the chief pilot at CHC at the time he was referee for you, wasn't he?
---I believe so, yes.
PN336
Now, I just want to try and clarify some time frames. Paragraphs 7 to 9 you talk there, "In late" – in paragraph 7 of your witness statement you talk about, "In late 2013 the position at Boeing became redundant," and then it says at paragraph 8 you contacted Peter with the suggestion that you come back to CHC. Peter Howe, I guess?---Correct, yes.
PN337
You would come back to CHC as a permanent employee rostering support to Latrobe Valley but based - until a position at Wollongong came up?---That's correct.
PN338
Was that in late 2013 that discussion took place? I'm just trying to get - - -?---I believe that would've been early 2014 after the redundancy had occurred.
PN339
How late in 2013 were you made redundant? Was it December, November?
---December.
PN340
You don't have the date, just December?---Yes, in December.
PN341
So it was roughly in the same time frame, December-January?---Yes.
PN342
Made redundant, contacted Pete and - - -?---Yes.
PN343
Was it at that time that Peter informed you that there was a possibility of a fifth pilot? At paragraph 9 you say there, "Peter informed me that the lack of a fifth pilot at Wollongong was becoming an issue"?---Yes, that would've been about the same time.
**** ANDREW WILLIAM ALEXANDER DIXON XXN MR STEPHENS
PN344
So round about December-January?---Yes, they were in particular looking for some support with Latrobe Valley and I had heard that they were looking to expand in New South Wales as well.
PN345
In paragraph 12 you say that you requested that the initial letter of offer be amended to reflect the arrangement of providing the Bell 412 - - -?---Correct.
PN346
- - - until approximately June-July. What was the initial letter?---The initial letter didn't state that exactly. What I was concerned about was that it would be basically written in the letter that I was supporting Latrobe Valley up until this position in Wollongong became available. Basically that was waiting for a sim slot, a training slot, on the aircraft type.
PN347
Sorry, I didn't follow you. The initial letter of offer – what did that - - -?---The initial letter of offer didn't state that. From memory, it was a little bit more hazy on that in that it didn't reflect that I would be going on the first available simulator course to work in Wollongong.
PN348
It captured everything else though, that you'd work in Latrobe?---It did.
PN349
When then did you refuse a permanent position at Latrobe?---I had been aware that Latrobe was looking for support for some time and I've worked in Latrobe before and had no desire to live there so I made it – made it clear throughout the procedure that I wasn't interested in working permanently at Latrobe.
PN350
Because your witness statement refers to you refusing you to consider a permanent position?---Correct.
PN351
Was one offered to you?---No, but I know that they were looking for someone there and I was not – that's incorrect. I was offered a position potentially there in discussion, "We are looking for people at Latrobe. Are you interested?" "No, I'm not."
**** ANDREW WILLIAM ALEXANDER DIXON XXN MR STEPHENS
PN352
You said you would only come to CHC if they offered you the Wollongong position?---Correct.
PN353
Are you familiar with the standing-bid system within aviation?---Yes.
PN354
Did you understand that they're not unusual?---Yes.
PN355
They're common?---Yes.
PN356
Would it have occurred to you that there may be a standing bid from an existing employee within CHC for Wollongong?---Yes, certainly, but that's nothing to do with my bid for a job.
PN357
No, that wasn't the question?---I would be unaware of it.
PN358
Would you be aware of it?---Yes, certainly.
PN359
At paragraph 15 you say there that you won't tour. It doesn't suit the family and so on. That's not an issue for you, is it?---How do you mean?
PN360
Touring?---Touring - - -
PN361
When you talk about touring, you've talking about gas and oil?---Anything that would require me to be away from my family regularly.
PN362
Which would include gas and oil or oil and gas?---Yes.
PN363
Which is offshore?---Yes.
PN364
Do you have Mr Howe's witness statement?---I don't, no.
PN365
Do you have it now?---I do now.
**** ANDREW WILLIAM ALEXANDER DIXON XXN MR STEPHENS
PN366
Andrew, could you, please, go to page 9 and paragraph 85?---Yes.
PN367
You see there this is Mr Howe's witness statement and he says there in the first sentence, "In the case of Dixon and Frankel we would have to either deploy Dixon or Frankel to another base or terminate their contract of employment which is not an option." So you've been given assurance that your employment is safe?---Yes.
PN368
Yes, and if you go to paragraph 87, it refers there to, "In the oil and gas stream pilot experience requirements are set out by the company. Neither Frankel or Dixon has any experience." That would suggest to you that you wouldn't be deployed to the offshore sector, wouldn't it?---That would, yes.
PN369
Does that give you some assurance?---I'd been given assurance that I'll be working on this base.
PN370
Yes, and not redeployed to offshore?---Correct.
PN371
Latrobe is closing as an EMS base, isn't it?---It's closing as a CHC base, yes.
PN372
Yes, that's good clarification. CHC lost the contract?---That's correct.
PN373
So you couldn't be deployed to Latrobe, could you?---No.
PN374
Which is your concern that you had up here that you would refuse Latrobe?---I would refuse any other base.
PN375
Yes, and particularly you refused Latrobe. Is it true that you can only move to another base if there was a vacancy in that other base?---I would expect so.
PN376
Yes, and you said you're familiar with the standing-bid system. Any move to another base where there might be vacancy would be subject to perhaps the next standing bid, wouldn't it?---Yes.
**** ANDREW WILLIAM ALEXANDER DIXON XXN MR STEPHENS
PN377
So you can't be sacked. You can't be moved to Latrobe. You can't be put offshore. You can't necessarily unilaterally go to another base. There's some degree of comfort there for you?---Yes.
PN378
No more questions, your Honour.
PN379
THE DEPUTY PRESIDENT: I might just ask one question before you re-examine, Mr Bakewell.
PN380
I'm just wondering during your time at Boeing what your – I can see all of the different flight hours that you have had on the various different kind of aircraft, but what was the purpose of your employment at Boeing since they're a manufacturer of aircraft?---Boeing holds a contract to provide military instructors and maintenance to various aircraft types to the army. I was employed instructing ab initio so beginner helicopter pilots for the army.
PN381
So that would not necessarily only be on aircraft that were made by Boeing?---No, not at all. I was in fact flying a Bell helicopter.
PN382
Do Boeing, just as a matter of interest, make helicopters?---They do. They make the Chinook, the Apache and a few other aircraft, but nothing that we were training in.
**** ANDREW WILLIAM ALEXANDER DIXON XXN MR STEPHENS
PN383
I asked your colleague this question as well. I'm interested in your view as well. The degree to which moving from one aircraft type to another requires additional training - what are the considerations in relation to that, given the experience and expertise one has on a particular aircraft? How transferrable is it? What are the considerations with its transferability?---Basic skills are transferable much like driving one car or another car. The individual characteristics of different aircraft vary greatly. The way that they perform in flight, the way to operate them, what they can and can't do vary greatly which is why you can't just have a helicopter qualification and fly anything. You need to be trained to the specifics of the aircraft type.
PN384
So is it fairly predictable if you have been operating aircraft A and you're wanting to move to aircraft – is it fairly predictable what the training time will be and what the curriculum will be for - - -?---Generally, yes. Curricula are all specified for these sort of things. They can be amended slightly for prior experience, but they're specified for what's required and laid down so, yes.
PN385
That's helpful, thank you. Mr Bakewell?
PN386
MR BAKEWELL: Thank you. In fact there are no questions arising from cross-examination, if the commission pleases.
PN387
THE DEPUTY PRESIDENT: All right. Thank you very much, Mr Dixon. That was helpful?---Thank you, your Honour.
You're excused.
<THE WITNESS WITHDREW [12.57PM]
PN389
THE DEPUTY PRESIDENT: It's 5 to 1 so I'm thinking this might be a good time to adjourn for a short lunchbreak. Do the parties have a view about long that lunchbreak needs to be based on what your needs are?
PN390
MR STEPHENS: I'm only mindful that Mr Howe has put in the second-most extensive witness statement I have probably seen in 25 years of this job.
PN391
THE DEPUTY PRESIDENT: Yes, so we would want to make sure we have time for him.
PN392
MR STEPHENS: We are obviously all very mindful that we want to conclude today.
PN393
THE DEPUTY PRESIDENT: I'm happy to just make it half an hour, if that suits the parties.
PN394
MR STEPHENS: I would suggest 30 minutes.
PN395
THE DEPUTY PRESIDENT: All right. Just to be neat we will make half an hour and four minutes. So the commission will adjourn until half past 1.
<LUNCHEON ADJOURNMENT [12.58PM]
<RESUMED [1.45PM]
PN396
THE DEPUTY PRESIDENT: Thank you. Mr Bakewell, I think you were about to call your next witness.
MR BAKEWELL: Yes, thank you, Deputy President. We'd like to call Peter Howe, please.
<PETER JULIAN HOWE, CALLED [1.45PM]
THE ASSOCIATE: State your full name and address?---Peter Julian Howe, (address supplied).
<PETER JULIAN HOWE, SWORN [1.46PM]
PN399
MR BAKEWELL: Might I have your associate, please, hand Mr Howe a copy of his initial witness statement together with 11 attachments, as well as his supplementary statement.
THE DEPUTY PRESIDENT: Yes, thank you.
<EXAMINATION-IN-CHIEF BY MR BAKEWELL [1.46PM]
PN401
MR BAKEWELL: Thank you, Peter. You've just been handed two documents, one which is the initial witness statement that you made in this matter, together with various attachments and the second one, I understand, is a one-page document which is a supplementary statement?---It is.
PN402
Would you, please, just peruse those documents and confirm to the commission that is the statement and the evidence you have given in this matter?---It is my statement, your Honour.
PN403
THE DEPUTY PRESIDENT: Thank you.
PN404
MR BAKEWELL: Can you verify that the evidence therein is true and accurate to the best of your knowledge?---It is.
PN405
Deputy President, I have a couple of brief questions for Mr Howe.
PN406
THE DEPUTY PRESIDENT: Yes, shall we mark the - - -
PN407
MR BAKEWELL: And, of course, we would like to enter into evidence both the initial statement and the attachments and the supplementary statement.
THE DEPUTY PRESIDENT: So Mr Howe's initial statement will be CHC3 and Mr Howe's supplementary statement will be CHC4..
**** PETER JULIAN HOWE XN MR BAKEWELL
EXHIBIT #CHC3 WITNESS STATEMENT OF PETER HOWE
EXHIBIT #CHC4 SUPPLEMENTARY STATEMENT OF PETER HOWE
PN409
MR BAKEWELL: Thank you, Deputy President.
PN410
Peter, in some evidence that was provided to the commission earlier today some comparisons were drawn between a pilot configuration in the SAR world, if we call it that, and a pilot configuration in the EMS world. Could you, please, provide your view as the chief pilot as to what the key differences are between those two configurations?---In the SAR aircraft that we operate, the Sikorsky S-76, it's crewed by two pilots, one of whom holds the position as the commander of the aircraft and the second pilot who usually occupies the left-hand seat is the co-pilot or first officer. The commander in the right-hand seat really is responsible for the planning, the initiation, continuation and termination of any flight and he's assisted in his duties by the second pilot. They can be – during a flight they can either be the flying pilot or the non-flying pilot and when that role is working, then, for example, if the first officer is the flying pilot, the captain of the aircraft backs him with calling checklists and doing various drills if there is an emergency situation, but the captain in that case would still maintain command of the aircraft and so basically the workload is shared in that aircraft. In the EMS world we usually – sorry, not usually but we do fly single pilot so we have a commander of the aircraft and he's assisted by a crewman who's trained in some of those duties to assist him. Generally speaking, the training that that crewman receives is as a result of what we do in the company and it's generally calling a checklist but he doesn't do any flying duties. He doesn't put his hands on the controls and his position is not really recognised by CASA in the sense they don't have a standard that he has to meet to be in that position. So in the EMS world the captain – we train those people to do all of the work on the flight so they've got to be able to run the radios, do their checklists, as well as fly the aircraft and command the mission and so that is the difference.
**** PETER JULIAN HOWE XN MR BAKEWELL
PN411
THE DEPUTY PRESIDENT: Thank you.
MR BAKEWELL: Thank you. Deputy President, I have no other questions for Mr Howe apart from that one.
<CROSS-EXAMINATION BY MR STEPHENS [1.50PM]
PN413
MR STEPHENS: Peter, did the company notify pilots of all the vacancies?
---Sorry, I missed – of all the vacancies?
PN414
Of these two vacancies.
PN415
MR BAKEWELL: Objection; your Honour, maybe if the witness could be directed to which particular vacancies by Mr Stephens - - -
PN416
MR STEPHENS: All right.
PN417
THE DEPUTY PRESIDENT: Perhaps give a time period. That might be helpful.
PN418
MR STEPHENS: I operated off the assumption that we all knew what we were talking about.
PN419
THE DEPUTY PRESIDENT: Yes.
PN420
MR STEPHENS: In January-February this year, were their two vacant positions within the Wollongong base?---In the Wollongong base they were identified because we had one pilot who had moved from Wollongong on the basis of a standing bid that he had and we also had a position there that was required to man up on the Wollongong base to enable us to run the roster more efficiently.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN421
That second one – was that a newly created position?---Yes, it would've been.
PN422
So we agree that we had two vacancies at Wollongong in around about January at least, if not February?---Yes.
PN423
Did the company notify the pilots of those vacancies – all pilots of those vacancies?---No, the first one was created by the movement of one of the pilots to Bankstown and the second one was the extra position.
PN424
That wasn't the question. The question was very specifically, did the company notify all pilots of those two Wollongong vacancies?---Not to my recollection, no.
PN425
Did the company notify all pilots of the creation of the new position?---Not at that stage, no.
PN426
Did the company allow pilots to change their bids in respect to that new position?
---No, the standing bids had been revised in September of the year before and they were then opened again in March this year.
PN427
No, that wasn't the question again. Did the company allow pilots to change their bids in response to that permanent position becoming available?---No.
PN428
Now, in relation to the two Wollongong vacancies, other than recency, did Mr Croal meet the requirements of the Ambulance Services New South Wales contract?---In the tender document or the signed contract there is a list of requirements that the client likes and from my recollection from the hours point of view Mr Croal would've been acceptable except for the amount of aircraft time on type and also for an NVG or a night-vision goggle qualification.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN429
Other than that he met the ATPL?---Yes, on the basis of the list of qualifications by the ambulance he met those requirements.
PN430
He met all of those requirements other than the NVG and time on type?---Yes.
PN431
And in most cases he doubled, if not quadrupled, the flying time, didn't he?---That doesn't make a difference. It's just the basic standard - - -
PN432
No, I'm not suggesting whether it makes a difference. I'm just asking the question that in most cases he either doubled or trebled the required minimum time?---I'd have to look his record – flying records.
PN433
If I was to put to you, for example, that he had two and a half thousand rotary – sorry, that the minimum requirement on the contract was two and a half thousand rotary hours and Mr Croal at that time had 5506, would you accept that?---Yes.
PN434
In relation to those minimum qualifications required Ambulance Services, one of those is command instrument ratings?---That's correct.
PN435
Civil command instrument ratings?---Civil.
PN436
And you agree that Mr Croal had that qualification?---I do.
PN437
Do you also agree that Mr Frankel did not?---To my recollection, he wouldn't have had a command instrument rating civil at that stage, but he had a number of renewals at the same standard from the military system.
PN438
The military instrument ratings are not recognised by CASA, are they?---No, they're not but they share the same airspace that we fly in.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN439
But that may well be the case but they're not recognised by CASA, are they?
---No.
PN440
No, and the only ones that are recognised by CASA are the civil instrument ratings, aren't they?---Well, if you say, "Are the recognised by CASA?" they actually use the same airspace as we do and so they've got to be recognised as an equivalent standard.
PN441
But not for the purposes of qualification?---You'll find with the clients that they will accept military command instrument rating.
PN442
He did not have a civil instrument rating, did he?---No, to my recollection.
PN443
In relation to NVG endorsement, Mr Dixon nor Mr Frankel had NVG endorsement at the time, did they?---I'd have to be careful there. I think Mr Dixon may well have had an NVG CASA endorsement but I'd have to check and Mr Frankel had a military background in NVG but no civil rating.
PN444
There was no endorsement?---But what he can do there is have his prior – recognition of prior learning by CASA.
PN445
There was no endorsement though, was there?---No, but he was qualified to be able to move on to the next phase once he had that recognition of prior learning by CASA.
PN446
There was no endorsement though, was there?---No.
PN447
You mentioned in relation to Mr Croal hours on type, minimum requirement of 500 hours on type; on type being the 139 obviously?---Yes.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN448
Did Mr Dixon have 500 hours on type?---No, he didn't.
PN449
Did Mr Frankel have 500 hours on type?---No, he didn't.
PN450
Was Mr Croal approved by Ambulance Services New South Wales to fly in their contract?---He'd been previously approved on the contract when we first stated to operate the Bell 412 helicopter. Whether or not that approval would still hold on a new type – I haven't tested that with the client.
PN451
While we're at it, what about Mr Sincich? Is he approved on the contract?---He would've been approved under the same status when we first started operating Bell 412 aircraft on the contract some years ago.
PN452
What about yourself?---I'm qualified on the contract at the moment presently.
PN453
Can I just show you this document, Mr Howe, and I might ask you to identify it?
---Thank you. It would appear to be a contract document probably from the Ambulance Service of New South Wales, your Honour.
PN454
Yes, and is that a list of pilots who are approved by Air Services New South Wales?---Well, without seeing the rest of the document, but it would appear to come off the contract document and it is probably some years old, of the initial contract, I would presume.
PN455
THE DEPUTY PRESIDENT: Is it a document that has already been provided to the commission?
PN456
MR STEPHENS: I don't think so, Commissioner.
PN457
MR BAKEWELL: I have got an issue with this. My issue, Deputy President, is that a document has just been put to Mr Howe to comment on. Clearly this is a document in the AFAP's possession. Up until today, as far as I'm aware, unless Mr Stephens can tell me otherwise, we have no prior of this document, no prior notice of it, in no position to ascertain its status, nor have we been given any prior opportunity to understand for what purpose it is being given and I see this as somewhat of a hijacking of Mr Howe to respond to a document that we know nothing about so I strongly object to the manner in which it's been put.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN458
THE DEPUTY PRESIDENT: I take it that it's not part of the bundle that was provided.
PN459
MR BAKEWELL: I don't believe so, Deputy President.
PN460
THE DEPUTY PRESIDENT: Is that the case, Mr Stephens, that you didn't extract it from the ambulance contract that was part of Mr Howe's witness statement?
PN461
MR STEPHENS: Your Honour, if I might just - can I take you to - - -
PN462
THE DEPUTY PRESIDENT: Might I just say there are a number of points here? One is authenticity and verification and I would certainly want that to be established before the document was admitted. If it passes that test and, as Mr Bakewell says, it's an ambush, rather than not proceeding with it I will just adjourn in order that you have the opportunity of reviewing it and getting familiar with it. As you know, the rules of evidence strictly don't apply but procedural fairness certainly does so that's my general principled direction to the parties in relation to this document. Mr Stephens?
PN463
MR STEPHENS: I was asking Mr Howe whether he recognised the document to start with.
PN464
THE DEPUTY PRESIDENT: Yes.
PN465
MR STEPHENS: That, I would hope, would ascertain some validity to it and if he does, that, I would submit, would probably satisfy that test, but the document is an appendix of the Ambulance Services New South Wales contract.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN466
THE DEPUTY PRESIDENT: Which I believe is one of the attachments to Mr Howe's statement.
PN467
MR STEPHENS: That's correct. However, the attachment is somewhat limited.
PN468
THE DEPUTY PRESIDENT: Just take it slowly and I might just at least try and identify in my bundle of material the Ambulance Service New South Wales contract. I think what you're telling me, Mr Stephens, is that the document forms part of that contract but wasn't included in the material provided by the respondent. I still haven't located that. Perhaps, Mr Bakewell, you could help me.
PN469
MR STEPHENS: Your Honour, there are extracts from it at PH3.
PN470
THE DEPUTY PRESIDENT: Yes, I will just find PH3. Bear with me while I find PH3. All I have as PH3 is schedule 7 "Personnel qualifications - - -"
PN471
MR STEPHENS: That's right, and that is annexed - - -
PN472
THE DEPUTY PRESIDENT: Curiously PH3 also – it may be that my material is not sequential because after the first page which is headed "Schedule 7" what's copied on the back page of that is something headed "User Croal, David" and then a series of references to - - -
PN473
MR BAKEWELL: That's PH4, Deputy President.
PN474
THE DEPUTY PRESIDENT: I see; this is the dilemma of environmental concern that things are double-sided and so it's not always evident that it's a new document starting. All right. So PH3 is just one single page. Is that right?
PN475
MR STEPHENS: That's right. It appears to be the case.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN476
THE DEPUTY PRESIDENT: So where does your document fit into PH3?
PN477
MR STEPHENS: Your Honour, let me just first of all take you to PH3, if I might.
PN478
THE DEPUTY PRESIDENT: Yes.
PN479
MR STEPHENS: At the very bottom you'll see there a reference. It's 0502488.
PN480
THE DEPUTY PRESIDENT: Yes.
PN481
MR STEPHENS: And it says "Con final".
PN482
THE DEPUTY PRESIDENT: Yes.
PN483
MR STEPHENS: I'm not sure what the "con" means. In the document that I handed – it may assist the commission if I actually provided you with a copy of what I'm talking about here.
PN484
THE DEPUTY PRESIDENT: That would be helpful, yes.
PN485
MR STEPHENS: Yes.
PN486
THE DEPUTY PRESIDENT: We won't mark it yet because its admission is at issue.
PN487
MR BAKEWELL: I would just note in terms of while we're referring to that footer it says "Rotary Wing Transport Services in the Greater Sydney area for the Ambulance Service of New South Wales" and it seems to be the same reference.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN488
MR STEPHENS: Yes, which my point is simply, your Honour, that that's indicative highly that this is from that document.
PN489
THE DEPUTY PRESIDENT: It would appear to be page 100 of that document.
PN490
MR STEPHENS: Yes.
PN491
THE DEPUTY PRESIDENT: So, Mr Bakewell, do you press your objection?
PN492
MR BAKEWELL: Yes, I do because the document PH3 was provided as a discoverable document for the purpose of Mr Howe's statement. My point is that the reference to this document that is being put and the context in which it has been put - we have no prior knowledge of that when that document has been in the possession clearly of Mr Stephens and clearly intended to be relied upon and in that context I don't have any instructions about the status of appendix A. If appendix A was the same document or was changed or has since been changed, we just simply don't know. Are we just going to go presumably on a mission of who knows where about a document we can't even verify at the moment? That's my concern.
PN493
THE DEPUTY PRESIDENT: As you know, in this jurisdiction as long as people are not ambushed and as long as people have got a fair opportunity to know what is coming, even if that's only minutes, we don't apply strict rules of evidence, but why don't I just adjourn for five minutes so that you can consider the document and try and satisfy yourself about its authenticity and we will ask Mr Howe to either remain, if you don't mind, in the witness box - - -?---Yes, your Honour.
PN494
- - - or if you want to sit back in the body of the court, you can come back in but still sworn. So we will just take five minutes' adjournment.
**** PETER JULIAN HOWE XXN MR STEPHENS
<SHORT ADJOURNMENT [2.06PM]
<RESUMED [2.12PM]
PN495
THE DEPUTY PRESIDENT: Yes, so, in fact, probably should have checked to see if you were ready.
PN496
MR STEPHENS: We're happy to proceed right now, your Honour.
PN497
THE DEPUTY PRESIDENT: We'll just pause and wait. Mr Croal, take a seat. Lydia will go. Because we're swapping between associates, we have different styles and some different approaches, and we just had a matter this morning that, as you know, took a little bit longer than I expected and then an unexpected aspect of it reflared at lunchtime.
PN498
MR STEPHENS: Oh, really?
PN499
THE DEPUTY PRESIDENT: So we're trying to run a couple of things at once, which I'm sure is not uncommon in your business.
PN500
MR STEPHENS: No, your Honour.
PN501
THE DEPUTY PRESIDENT: The commission is adjourned for a further five minutes.
<SHORT ADJOURNMENT [2.14PM]
<RESUMED [2.18PM]
PN502
THE DEPUTY PRESIDENT: Mr Bakewell - - -
PN503
MR BAKEWELL: Thank you, Deputy President.
PN504
THE DEPUTY PRESIDENT: - - - where are your documents?
**** PETER JULIAN HOWE XXN MR STEPHENS
PN505
MR BAKEWELL: I apologise for the time that we took.
PN506
THE DEPUTY PRESIDENT: That's right.
PN507
MR BAKEWELL: My instructions about the document are as follows. The document was appendixed to the initial contract circa 2007 that was provided to Ambulance Services New South Wales regarding a list of approved persons, pilots, engineers and air crewmen who were approved on the 412 aircraft. So it is a point of time document regarding the 412. Since that time, CHC have provided updated lists of approved persons who are approved on the type or 109 or the 145, or whatever the current aircraft are, and those updated list of approved persons and qualifications have subsequently been submitted. They do not appear here and I'm further instructed that the requirement to submit such a list arose specifically out of what is known at the Carrington Falls incident which was unfortunately an incident regarding a fatality on the contract circa 2009 or 10, I can't remember.
PN508
MR STEPHENS: 11.
PN509
MR BAKEWELL: 11, was it?
PN510
MR STEPHENS: Christmas Eve 2011.
PN511
MR BAKEWELL: In respect of which a coronial inquest is currently occurring, but arising out of that was a requirement for CHC to provide an updated list of all approved persons who operate on time, et cetera. So that is the context of this document as I'm instructed in the brief time that we had.
PN512
THE DEPUTY PRESIDENT: All right, thanks, Mr Bakewell. Do you doubt the description of the context, Mr Stephens?
**** PETER JULIAN HOWE XXN MR STEPHENS
PN513
MR STEPHENS: I have to accept Mr Bakewell's version and I can make inquiries.
PN514
THE DEPUTY PRESIDENT: Given that, do you still wish to ask Mr Howe a question about it?
PN515
MR STEPHENS: Well - - -
PN516
THE DEPUTY PRESIDENT: Let me say I will allow it, but I'll obviously weight it according to the relevance based on the context that's been provided.
PN517
MR STEPHENS: Yes. Well, my only question is, and I think to some extent it has possibly been answered anyway, but the purpose of this was providing some physical evidence to support, if you like, the verbal evidence. Do you agree that Mr Croal is an approved pilot with the Ambulance Services?
PN518
MR BAKEWELL: I object.
PN519
THE DEPUTY PRESIDENT: Is the objection to the question per se or to - - -
PN520
MR BAKEWELL: Well, no, I object in the sense that - - -
PN521
THE DEPUTY PRESIDENT: - - - the question arising out of the document?
PN522
MR BAKEWELL: Yes, well, I object in the sense that I understood Mr Stephens to just say he accepted the proposition that was put about the document. If he's putting that question as a proposition from the document, I understood - - -
PN523
THE DEPUTY PRESIDENT: Yes, no, I don't think he is; I think he's asking it generally.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN524
MR BAKEWELL: Okay.
PN525
THE DEPUTY PRESIDENT: What I might do just to clarify the situation is I've not marked it as it seems to me to be of little value and could be confusing, so I think I will actually not admit it, and just ask you to ask your questions.
PN526
MR STEPHENS: Yes, I'm happy with that. It was actually intended to assist the process as opposed to confuse the process, but Mr Howe, do you know if Mr Croal is an approved pilot for the Air Services contract?---Not at the present time, your Honour.
PN527
You don't know at the present time or - - -?---No, he's not an approved pilot at the present time on the 145 or the 139 aircraft.
PN528
Do you have evidence of that?---Only my recollection of the pilots that are named on the list. The list you gave me, it only has three pilots that are actually serving on the contract.
PN529
Who are they?
PN530
THE DEPUTY PRESIDENT: That is difficult. As I've just said - - -
PN531
MR STEPHENS: Okay, that's all right.
PN532
MR BAKEWELL: I agree with your Honour.
PN533
MR STEPHENS: It sparked my interest.
PN534
Mr Frankel, was he an approved pilot at the time in January this year?---No, the process when we have a new employee, your Honour, is to gather their CV or their resume, look at their training that they're going to do and present a letter requesting approval to the client, and nominating those areas where they may be short on one of those overriding requirements and any mitigating factors that we would have in there. For example, Mr Frankel, with his NVG qualification, night vision goggle qualification, we would identify that he has extensive military experience. We were going to go through the request for prior learning and we didn't envisage any difficulty in qualifying for that. And it's up to, then, to the client to agree to any of those requests for some alleviation against the requirement.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN535
So do I take it that your answer is no? At the time of appointment, he was not approved pilot?---Not at that stage, no. It was in the process of being done (indistinct)
PN536
But he was not an approved pilot?---No.
PN537
I want to take you, Pete - Mr Howe, I'm sorry - to your witness statement at paragraph 59. You say there in the second paragraph that, "If a pilot does not meet the requirement, I'm not going to put him or forward through the required consideration. Had CHC met with Croal, we would have advised him to get back and do current flying practice, and that when the next vacancy became available at Wollongong, all things being equal, Croal with his seniority with the company and capability would get the position at Wollongong unless the client raised some objection to the selection." Why did you not meet with him to discuss that?---In February, when I was making the decision about the position - - -
PN538
Sorry, can I rephrase the question, why did the company not meet with him, Mr Croal?---At that stage when these decisions were being made, Mr Croal was on leave without pay. He had been on leave without pay for nearly two and a half years, from recollection, and was certainly not in regular flying practice in that time. On the basis of safety, that was the reason why we did not put him on a course.
PN539
No, that wasn't the question, Mr Howe. The question is: why did you not meet with him to discuss with him the next available vacancy becoming available all things being equal, given his seniority, he would get the next job at Wollongong, why did you not meet with him to discuss that?---Well, he wasn't one of the members that was being considered for that position on the basis of the decision we made.
PN540
Why didn't you meet with him? You knew he had a bidding?---Mr Croal was not an eligible candidate for the position at Wollongong.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN541
That's not what your statement say there, Mr Howe. You said, "Had CHC met with Croal, this is what we would have done." You make some very definitive statements there.
PN542
MR BAKEWELL: I object to the proposition of the question.
PN543
THE DEPUTY PRESIDENT: Yes, Mr Bakewell, on the basis of - - -
PN544
MR BAKEWELL: My objection is that the proposition is not correct as per the statement. Mr Howe's statement says, "We did not meet with Croal to discuss options for him because he was not in current flying practice." The next is a hypothetical, which Mr Howe, as I understand it, has answered twice, he's been asked the question twice, "Why did you not meet with him?" Twice he said, "Because he was not in current flying practice."
PN545
THE DEPUTY PRESIDENT: Yes, I accept that. Is there any other reason that you didn't meet with him other than that which you've stated?---Not at that stage, and when these decisions were being made, your Honour, it was late January, early February, and just about that time I had to take some personal leave and with the handover period to my replacement.
PN546
All right. So you might have got an additional answer there, Mr Stephens.
PN547
MR STEPHENS: Just to respond to Mr Bakewell, the proposition that Mr Howe has put at paragraph 59 of his statement does not pertain to the vacancies that are in dispute today, they pertain to the next available position subject to him getting his hours up and so on. So all I'm asking Mr Howe is that given that Mr Croal has a bid in, if the company has made an assessment, and I won't take it any higher than that, but if they've made an assessment that he's not suited for that time, being January/February, that clearly made an assessment that he may well be suited for the next, and that discussion may well have resolved this dispute because if that discussion was had with Mr Croal, Mr Croal may well have said yes. In fact, that is a proposition that has been put to the company very recently.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN548
THE DEPUTY PRESIDENT: You're not limiting to asking Mr Howe questions in relation to specific matters that he raises in his statement, in any event, so if you want to ask him why subsequent to not meeting him on the occasion of the vacancies were apparent, that you didn't then meet with him, then by all means do so and we'll see what Mr Howe says.
PN549
MR STEPHENS: Yes. Well, that does invite the question in relation to - well, the question in relation to clause 24.2.9 of the agreement. Mr Croal had a bid in. Correct?---Correct.
PN550
As I understand it, Pete, on your evidence, David did not meet the requirements?
---Correct.
PN551
If I can really put it shortly like that. Clause 24.2.9 requires a discussion in those circumstances, doesn't it?---It does.
PN552
And it may have been within that discussion, at some point, it may have been within that discussion that you put your proposition to him at paragraph 59 and we, in fact, may not have been here. Why did you not have the discussion in relation to clause 24.2.9?---It was my opinion, your Honour, that seeing he was ineligible for this particular position, then it really was a matter that didn't need to be taken any further at that stage because on the next available vacancy he would be eligible providing he was in current flying practice.
PN553
MR BAKEWELL: It might assist, Deputy President, because this is, you know, the heart of part of our overall submissions and I think is contained in Mr Howe's evidence, and I just put this for context so we don't get confused here. Mr Howe is saying that Mr Croal was ineligible, therefore the obligation to meet in respect of 24.2.9 didn't arise, so he's talking about the next vacancy.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN554
THE DEPUTY PRESIDENT: Yes.
PN555
MR BAKEWELL: The commission pleases.
PN556
THE DEPUTY PRESIDENT: Thanks for that, Mr Bakewell.
PN557
MR STEPHENS: Is that a commitment that you're prepared to put today?
---What, sorry?
PN558
That at the next vacancy, Mr Croal would be appointed to the position?---If he met the minimum requirements, your Honour, and the next check that he does indicates that he's caught up with the processes that we have. Since he was on leave, we've had a new operations manual come in. There's been a large number of changes in the regulations. If he was to maintain the same standard, you would expect that his next check that he's required to do, yes, he would be considered to be one of the eligible people.
PN559
Was the check you just referred to a moment ago, was that his recurrency check?
---We've got to do, basically, three checks of our ability a year, your Honour, and one of them is to do with handling emergency situations
in the aircraft with some instrument flying. The second check is to do with passing a CASA required instrument rating test, and
the third requirement is to have an examination of you operating, for example, in the RAAF search and rescue role. When Mr Croal
came back to work in February, he undertook some recurrency training to something in the order of 25 hours to do that check of the
emergency procedures and also the instrument flying capability, and I would expect that he will do another check in six months time
from then. On the basis of that second check, which you would expect he would pass with some regular flying experience, there would
be no impediment I could see from a company point of view why he couldn't be eligible for a position.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN560
It would then be up to the client to accept him on the fact that he doesn't necessarily have an NVG qualification or indeed the hours on type, which seems to acceptable to the client?---From our experience, yes.
PN561
Given, then, his seniority and given then his description of his capability, I assume that you refer to that in the positive?---Yes.
PN562
Why would there be a difficulty in affording Mr Croal the 139 training opportunity now at the next opportunity in preparation for him moving into the next available slot in Wollongong, not dissimilar to what was agreed in relation to Mr Tweedie?---Where we have at the moment, your Honour, we have Mr Croal filling a position at Williamtown. It's an organisation that we don't run to a large number of spare pilots to enable us to, you know, fill vacancies, if one would become available in this circumstance, and in time we need to, if there is a vacancy arising at Wollongong, we would need to put out an expression of interest after reviewing the standing bids list, and we then would look at moving Mr Croal being successful at the Wollongong position, providing a replacement at Williamtown or Newcastle for Mr Croal before we're able to move him into the next position, otherwise we reduce our capacity to operate in the first base. At the moment, what we would be doing is spending time away from his job at Newcastle to go through a training process, which can take in the order of six to eight weeks, let's say, to complete from start to finish.
PN563
Which is effectively what the agreement that you put in place for Mr Tweedie, isn't it?---Yes.
PN564
So if Mr Croal were to stay in Williamtown and do the 139 training, you're not disadvantaged, then, are you? You're maintaining him on base, you're maintaining the SAR operation?---No, with respect, I think you are disadvantaged.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN565
Hang on, let me finish, thanks. And that the company recruit to backfill?
---Your Honour, at the moment, Mr Croal has been back in flying practice since February after a two and a half year break. His training
captain that did the checks on him made note that some things needed to be improved, and so to be, you know, current or well around
the knowledge and information that we've got to deal with, and he recommended that he concentrate on doing some radio calls and the
content of the new operations manual. We're still in that recurrency period at the moment and we haven't confirmed that Mr Croal
has been around all of that basis, so we would now be putting him into a situation of taking on a fairly not difficult aircraft to
understand but certainly a complex aircraft to understand and the systems, and it would be putting him at an unfair advantage, I
think.
PN566
We had evidence this morning that Mr Croal had completed all of his recurrency by 21 March, including all line checks?---Yes, he's cleared back to the line as a two pilot operation on the SAR operations.
PN567
That's correct, yes?---Yes.
PN568
I'm assuming it's not your evidence at any stage that no two pilot operation is - sorry, I'll put that another way. I assume it's not your evidence that a pilot who flies in a two pilot operation is not capable of transitioning to EMS?---No, your Honour, some pilots are not able to transition to EMS. We've had some instances - - -
PN569
Are all pilots capable?---Not all pilots are capable of transitioning from a two pilot operation.
PN570
Are all pilots incapable?---Not all pilots are incapable, either.
PN571
So there is the capacity to transition from two to one, isn't there?---There is, your Honour, but we find there are failures and recently as well.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN572
But anyway, Mr Croal is now recurrent, isn't he?---He's current on two pilot operation on the RAAF SAR operations, your Honour.
PN573
Your Honour, I'm struck by this conversation, to be honest with you, in that it suggests to me that, in reality, the parties are not that far apart. I won't venture into what might be any ulterior or underlying motive as to the current position being taken, but in the circumstances, I wonder whether it's worth our while utilising the good service of the commission in conciliation for a moment with leave of the commission.
PN574
THE DEPUTY PRESIDENT: Perhaps we should at least conclude Mr Howe's evidence and then I'll - - -
PN575
MR STEPHENS: Contemplate that.
PN576
THE DEPUTY PRESIDENT: - - - give you my - - -
PN577
MR STEPHENS: Yes.
PN578
THE DEPUTY PRESIDENT: - - - indication, and then - - -
PN579
MR STEPHENS: And subject, of course, to what Shane's view is as well.
PN580
THE DEPUTY PRESIDENT: Well, that's exactly right. So why don't we just take that as a question on notice.
PN581
MR STEPHENS: Yes.
PN582
THE DEPUTY PRESIDENT: I take it you've concluded your cross-examination of Mr Howe?
**** PETER JULIAN HOWE XXN MR STEPHENS
PN583
MR STEPHENS: No, I've got a little bit to go through.
PN584
THE DEPUTY PRESIDENT: You've got a little bit to go. All right.
PN585
MR STEPHENS: Peter, at paragraph 20 of your witness statement, you talk about there the emphasis on the pilot's currency and the need in relation to Wollongong to fly over sea and land, close to the Great Dividing Range and national parks, requires helicopters with winch equipment for extractions from difficult situations and so on. SAR operate over land and sea, don't they?---They do, your Honour.
PN586
David was previously employed at Wollongong?---He would have toured through there, yes.
PN587
Yes, he was performing emergency service work?---He was.
PN588
He would have had to have contend with the Great Dividing Range and national parks?---He did.
PN589
He's got experience flying in East Timor?---He has.
PN590
And would it be fair to say that is, how do I put it, not forgiving terrain, it's difficult?---It's not.
PN591
Difficult terrain?---It's experience he gained some years ago, though, your Honour, before he went to Timor.
PN592
Yes, the answer is yes. Does he have experience in winch?---He does.
PN593
Winch over water?---He does.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN594
Winch over water at night?---He does.
PN595
And that's something above and beyond they do in EMS, isn't it?---It is.
PN596
In relation to paragraph 21, Mr Rothwell was appointed to a position outside of the standing bid system, wasn't he?---I'm not sure, your Honour, I wasn't in this position at that time.
PN597
Well, if I put to you that the person with the valid standing bid was Mr Yu, Captain Yu at that time, and the company appointed Mr Rothwell over him, would you accept that?---I'm not aware of the details, your Honour, truthfully.
PN598
But I'm asking would you accept it if that's what I put to you.
PN599
MR BAKEWELL: I object. Mr Howe has said, "I don't know, I wasn't involved."
PN600
THE DEPUTY PRESIDENT: I think that's fair enough, yes, and they will want to accept it from you, Mr Stephens, but he doesn't know - - -
PN601
MR STEPHENS: Okay.
PN602
THE DEPUTY PRESIDENT: - - - so he needs to be true to himself.
PN603
MR STEPHENS: That's all right.
PN604
Now, in relation to paragraph 22, you refer there to, "On 4 and 6 February, the leadership team met and discussed the need for five additional pilots throughout the New South Wales contract." Yes?---That's correct.
PN605
Providing additional pilots at Wollongong and whatnot. In fact, this was something that was being discussed as far back as September the previous year, isn't it?---The manning levels on the EMS contracts or indeed on our three streams that we have on the company oil and gas, SAR and EMS have been subject of a discussion that I initiated when I arrived in this position from June last year to ensure that we had adequate manning so that we didn't require pilots to be doing additional casual days work, which I thought was not in the spirit of the various work practices.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN606
You were discussing that with Mr Dixon at least as early as September last year, weren't you?---Could well have been. Mr Dixon had worked with us previously. He was a good employee.
PN607
And you were discussing the prospect of him coming to take up that contract, weren't you?---Rejoining the company and he expressed an interest in Wollongong as a preference.
PN608
So at least around September or so last year, there was a decision that's been made to recruit people?---We were looking to plan into the future, not necessarily recruiting people at that stage.
PN609
Well, you say here that approval was granted for additional five positions on the New South Wales contract?---This was in January or February this year, your Honour.
PN610
Yes.
PN611
MR BAKEWELL: We've just jumped from September and the question was proposed that you had agreed to recruit. Then you said "we were planning" and then the paragraph refers to - - -
PN612
THE DEPUTY PRESIDENT: Yes, I do think Mr Howe is on it, I think he was drawing the question as attention to that.
PN613
MR STEPHENS: The process was that you were planning it contemplating it back in September last year?---Well, to be honest, we were looking at the pilot numbers for all three streams since June, I took over this position. Now, there wasn't any further decision to make; we were trying to identify whether shortages were across the entire company after we lost 37 pilots.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN614
In September last year, you knew that Mr Croal was interested in a 139 position, didn't you?---I can't recall the phone call but I've seen evidence that he and I did have a discussion.
PN615
In fact, there was an email exchange, wasn't there?---I can't recall, to tell you the truth.
PN616
In fact, there was an email exchange on 14 October last year. Is that correct?---As I said, I can't recall it.
PN617
I'm happy to show you the email exchange or otherwise you can accept what I'm putting to you?---I would like to have a look at it, if you wouldn't mind, your Honour.
PN618
MR BAKEWELL: Deputy President, again, I mean, really? We've had an extraordinary amount of time to present the material that we intend to rely upon and if indeed it is a document that Mr Howe identifies, then that is reasonable, but the extent to which other matters will flow from that, I haven't seen this document, we don't have instructions on it, we don't have context about it, but here it is again being put to Mr Howe with full knowledge that the document was going to be put and similar to the previous document, and I know it is not in the spirit of the directions that have been given, and I would like an opportunity most certainly to have a look at the document and to get instructions about it, and its status before we proceed any further.
PN619
THE DEPUTY PRESIDENT: Yes, well, I think that's reasonable.
PN620
MR STEPHENS: Your Honour, talk about the integrity of the directions, the directions were that the applicant file and serve, the respondent file and serve, and the applicant reply. In this instance, the respondent took liberty upon itself to reply to the reply in the form of a further supplementary witness statement by Mr Julian Howe - sorry, by Peter Howe. In paragraph 3 of his statement, he makes the statement there that, "I cannot recall contacting Croal in October/November 2013." Now, we're not in a position to provide supplementary material at that stage because the directions did not provide for it. Indeed, the respondent went beyond the scope of the directions. We are entitled, we say, in this circumstance, to produce evidence of rebuttal in these proceedings. Mr Bakewell would be aware of that.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN621
THE DEPUTY PRESIDENT: Yes, look, I think it's slightly different from the previous document because its origin can presumably be established, but I think it is reasonable for Mr Bakewell to have an opportunity to look at it.
PN622
MR BAKEWELL: And most certainly if it is the case, I haven't seen the document, but in the circumstances that the document generated by Captain Croal, it was most certainly within the scope of the applicant to file that evidence given that it's Mr Croal's, presumably, his email.
PN623
THE DEPUTY PRESIDENT: Well, except, of course, that it goes to this point of what the conversation was in September, and that arises in the supplementary statement. But, look, what I might do is take a short adjournment so that you can look at it. While you're doing that, and notwithstanding - I was going to say Chief Pilot Howe, I should address you properly, that you are in the witness box, you might also like to think about what Mr Stephens said about conciliation. If during the course of evidence and submissions, and cases, people see an opportunity to close the difference between them, I always think it should be taken and I would be very happy to do that. I would be very happy at any time between now and the end of the day to sit down for a short period of time just to explore whether there is now the opportunity that didn't exist earlier when we had the telephone conciliation, which is never ideal, really, for meetings of the minds to do that, so I would be happy to do that, so maybe you could talk to your client about that. Thank you. We shall adjourn for five minutes.
<SHORT ADJOURNMENT [2.46PM]
<RESUMED [2.54PM]
PN624
THE DEPUTY PRESIDENT: Have you given some thought to the prospect of conciliation?
PN625
MR BAKEWELL: Yes. I have taken some instructions on the matter. Our strong preference is that we conclude what we are here to do, so that would include obviously the evidence being finalised and finalisations of our submissions. Our view would be at that point we would be more than happy to engage in a discussion and at least then we've dealt with the case, we're informed about it, we understand what it is that we are doing, but we are open to have a discussion on that basis if that suits both, of course, yourself and was suitable to Mr Stephens.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN626
THE DEPUTY PRESIDENT: I would be available now or at that point in time, and certainly if the case is concluded, then at least both parties know or have the best idea of where they stand. Mr Stephens, is that satisfactory to you?
PN627
MR STEPHENS: By definition, it has to be, so I think that's a difficult course, I guess, isn't it?
PN628
THE DEPUTY PRESIDENT: It will be by consent at this point in the process, yes. All right. Now, well, let's just do that and thanks, Chief Pilot Howe, for your - why are you laughing, Mr Stephens? It is Chief Pilot Howe, it's a very important position. So let's continue on and let's deal with this document to the extent that - - -
PN629
MR BAKEWELL: Yes, Deputy President, and thank you for that adjournment. We're happy for Mr Stephens to proceed.
THE DEPUTY PRESIDENT: Very good. All right. Well, we might just mark this because it's material that's not otherwise contained. So this will be AFAP3.
EXHIBIT #AFAP3 DOCUMENT LIST OF QUALIFIED PILOTS
PN631
THE DEPUTY PRESIDENT: Okay.
PN632
MR STEPHENS: Thank you. I have only one question. Do you agree, then, that as at least October last year, you are aware that Mr Croal was interested in the 139?---Yes.
PN633
Excuse me. I'm endeavouring to expedite these proceedings, your Honour, so bear with me as I do so.
PN634
THE DEPUTY PRESIDENT: That's fine.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN635
MR STEPHENS: I'm hoping to give us an opportunity to make good value of what hopes to be the prevailing good sense. At paragraph 42, Mr Howe, you refer there to Mr Croal's leave. Do you know the purpose of Mr Croal's leave?---I have some understanding of the situation, yes, your Honour.
PN636
What do you understand the purpose of that leave to be?---Well, I think it was family related, your Honour.
PN637
Is it the position of the company that when pilots or indeed employees or on family related leave that you don't make any endeavour to contact them in relation to opportunities?---From my experience in this matter, your Honour, I would have thought not, but I've only dealt with - I think there was three pilots that are on leave without pay, such as Mr Croal had been on. It's my understanding that they've taken a period of leave away from the company for whatever reason, whether it's personal reasons, health or indeed just to take the time to do something else and, as a general principle, I wouldn't endeavour to contact unless there was, you know, a major issue arising that they needed to be aware of because it's basically their own time. They're not being paid by us and they're in their own time. I wouldn't say not employed by us, but certainly it's an arm's length relationship, in my mind.
PN638
So would you not advise any pilot who's on parental leave unpaid there's an opportunity?---If it was an expression of interest that went out, your Honour, it goes onto the Internet and the internal company email system or into the intranet, and it would be available to them if they chose to access that to read their mail. There is no requirement for a person that's on long leave or personal leave to make a phone call to the company or indeed access the intranet for any information.
PN639
But he could have accessed the intranet until the cows came home because nothing was up there, was there? He would need to have been notified personally in the absence of - - -?---Well, depending on what you're talking about, Mr Stephens.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN640
MR BAKEWELL: Sorry, I'm not sure what the question is in relation to - - -
PN641
THE DEPUTY PRESIDENT: Perhaps just put specificity to the question. In relation to the vacancies in Wollongong.
PN642
MR STEPHENS: Well, in relation to the vacancies in Wollongong, we established that Mr Howe or at least the company, I should say, I shouldn't personalise it, we established that the company was aware of Mr Croal's interest in the 139, we have established that there were discussions taking place in October/September of last year in relation to expanding the opportunity to the 139. Mr Croal has expressed an interest in the 139. He was on family leave. I'm simply wondering why he would not have been contacted in those circumstances?---As I said, your Honour, there's no requirement. When the man is on family leave, he's entitled to peace and quiet from interruptions from company, in my view.
PN643
You say at paragraph 45 - don't worry about that, I withdraw that. At 46, you say that you didn't believe that Mr Croal had sufficient recent experience to enable him to successfully undertake a new type of rating course and operate safely. That was your view, was it?---As head of flying operations of the company and responsible for the safe and efficient operations of the company, it was my view, your Honour.
PN644
There's your Honour, but I'm awfully flattered. That was based on your view, yes?---Yes, your Honour. I've got CASA approved head of flying operations - - -
PN645
We don't doubt your qualifications, Pete, we don't doubt your qualifications, that's fine?---It's, Mr Stephens, a CASA approved position and I'm responsible for the safe and efficient, and effective operations of the company.
PN646
Do you have responsibility to the pilot body?---I do, to look after them and make sure that their welfare is looked after and their careers are looked after, but also that they operate safely.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN647
And that they're treated fairly and equitably?---Yes.
PN648
And non-arbitrarily?---Non-arbitrarily, your Honour.
PN649
Why wouldn't you have tested Mr Croal to see whether or not he did have those skills to successfully undertake - why didn't you actually give him a test? Why didn't you actually approach him and say, "This is what I'm thinking; persuade me otherwise." Or, "Let's put you in and give you a test." Why didn't you do that? And - - -?---As I said, your Honour, Mr Croal was on parental leave or long leave with his family. He hadn't flown basically for the last two and a half years and I believe the risk to both himself and to our organisation from going onto a new aircraft type single pilot without that background experience for the last two and a half years, it would have been a very difficult task for him to do, and put him at risk and also our organisation at risk. Now, I haven't flown regularly for the last 12 months. When I finish here, I go back to flying regularly, I am going to be in the same position, I am going to have to go through a period of training and recurrency to get back to where I was previously as a training captain.
PN650
Would there be an opportunity to test him in a sim?---Your Honour, you could do that; however, it's not just the manipulation, it's our perishable skills, both technical and non-technical that we're talking about here. We have a new operations manual that we brought into place. Mr Croal knew nothing about that. We've had changes in regulation. And, again, those perishable skills are not something that you can pick up readily or rapidly, and so it's those little things that we all do in our particular job which enable us to do it safely. And if you're not flying for two and a half years, you'll lose those. They are perishable and it's a recognised fact.
PN651
Not so perishable that he took 11 or 12 days to regain currency?---That was on an aircraft where he has considerable years experience in a two pilot operation.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN652
Yes. Now, Mr Croal was due to return to work on 1 February, wasn't he?---I think I recollect that was the date.
PN653
Did you ask him to defer that?---I did.
PN654
For how long?---I think we had a discussion, your Honour, that maybe another two weeks. The companies can ask people to take leave of part of their annual leave down to I think it's one year value, 42 days. At that stage, Mr Croal had more than 42. Attempting to extend his leave somewhat to bring that total down to something a bit more manageable.
PN655
But if you're concerned about his absence from flying, why would you ask him to extend his unpaid leave?---I have no concerns about his absence from flying. He was on leave without pay.
PN656
Yes, and a consequence of that he wasn't flying, so therefore you were concerned about his recency and, as a consequence of your concern about his recency, he lost out on an opportunity?---No, that wasn't part of the thought process at all. We allowed him to have another two weeks with his family after the time that he had off.
PN657
The company acted benevolently in saying, "We would like to give you another two weeks with your family." Is that your evidence?---I had a discussion with Mr Croal about taking additional two weeks leave, and that was the sole purpose of it, to give him more time off.
PN658
I put it to you, Mr Howe, that wasn't the reason. If you were concerned about his absence and his lack of character, you wouldn't be inviting him to take further time off?---I wasn't concerned about his currency because I knew that when he came back into the role of the RAAF Search and Rescue pilot, he would go through a period of retraining to prepare him for that task, and so whether he was off for another week or two weeks, it mattered little in that particular role.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN659
Yes, and you knew in August/September last year he was interested in the 139, didn't you? We established that. And you knew also that come February you were appointing other positions to the 139 positions and that you were shortly thereafter going to commence those people on training. I put it to you that you put Mr Croal or you got the consent of Mr Croal to extend his leave in order to compromise his position further. Is that correct?---Your Honour, I find that offensive.
PN660
Well, is that the consequence of it?---It wasn't my thought process.
PN661
Well, was it the consequence of it?---Inadvertent, probably, yes.
PN662
The company doesn't have much of a concern about employing people who may not necessarily be qualified, do they?---Would you mind repeating the question?
PN663
Well, the company is happy to employ people who even you deem to be not acceptable. Is that correct?---I'm not sure where Mr Stephens is going, your Honour.
PN664
Well, has there been an instance where the company has employed a person who even you deemed to be not acceptable?---Not that I can recall, your Honour.
PN665
Can I take you to PH6 of your witness statement, provided I assume there is no objection (indistinct) your Honour.
PN666
THE DEPUTY PRESIDENT: I'm flipping through my pages as you speak.
PN667
MR STEPHENS: PH6; it's an email from Mr Howe to Farah Sidel?---No, this - can I answer that for you, your Honour?
PN668
THE DEPUTY PRESIDENT: Yes, certainly?---The subject email is an email that I sent to the management team on 17 February two days after I commenced personal leave, family leave just to summarise a handover.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN669
Go ahead, Mr Stephens.
PN670
MR STEPHENS: Sort of, Peter, halfway down the actual text of your email - sorry, there's a sentence or a line that says, "Mark McNicol, New South Wales police interview not acceptable, not advised." Do you see that?---I do.
PN671
I understand he was subsequently employed. Is that right?---He was.
PN672
Where was he employed into?---He was employed to go onto the EC145 helicopter at Orange Base, and he subsequently failed his training course, your Honour, and his services have been terminated.
PN673
And, sorry, Orange is EMS?---EMS145.
PN674
EMS?---Yes.
PN675
So you made an assessment in relation to somebody who you deemed not to be acceptable, was employed nevertheless, and that person was then screened, if I can call it that, through an empirical test and then moved on?---Your Honour, the determination that Mr McNicol was not acceptable, what it said there, was gleaned from the results of the interview that he had completed with other people rather than myself, and was passing on a piece of information that I was aware of from the recruiting section, not my determination.
PN676
Not suggesting that. I hope I made the point, your Honour, I'll make it again. This is about the company, it's about the individual, this is nothing personal, Peter.
PN677
THE DEPUTY PRESIDENT: But I think the point you're making, are you not, Mr Howe, is that you would have to read the sentence as, "New South Wales police interview not acceptable," it might be a full stop, "Not advised by me"?
**** PETER JULIAN HOWE XXN MR STEPHENS
---Yes, he hadn't been advised, your Honour, at that stage whether he had been successful or unsuccessful.
PN678
"Not acceptable" refers to the New South Wales police interview?
---Subsequently, he, on the basis of strong character or ability references from people that he worked with, he was employed. He
was sent to the simulator and had a marginal standard and so I had a discussion with him to say that his services were no longer
terminated and there was an opportunity to re-evaluate him in the 145 simulator again which he failed on that particular ride and
realised that he wasn't able to manage the task of the single pilot IFO or instrument flying pilot and EMS operations.
PN679
MR STEPHENS: Did the company employ him?---Yes, they did, your Honour.
PN680
Yes, thank you. At 53, Peter, you say there you would require Mr Croal to complete a number of months of regular flight before you would consider him to undertake further training and also needed commitment from him that he would not be requesting further periods of leave. Deal with the first part. How many months, what's the number of months?---The task that the pilots conduct on RAAF SAR is not a high flying operation. Most of their flying experience they get month to month is training. They have very few actual tasks. They can be tasked by the Australian Maritime Safety Authority to do rescues at sea, but they are infrequent, and the number of activations, if you like, on an airforce base, are usually minor in nature unless the airforce have a major accident or a major crash. So you would need some months of that level of flying, which can be in the order of nine hours a month, which is a very low flying rate. You would need a number of months experience of that rate and, as I think I said before, I would expect about the six month period to do another check of his ability, which would be one of the three checks that we do each year. If there was a successful passing of that check, I think the next check that Mr Croal is due is an instrument rating check and so you would expect him to pass that adequately and you could also get him to demonstrate there whether he had the ability to operate as a single pilot or rely more as a single pilot point of view.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN681
So six months?---Six months.
PN682
Is that documented?---well, in the sense of in our CASA approved training manual, it talks about these checks and how far they've got to be apart.
PN683
No, six months, is that documented?---No, it's my opinion, your Honour.
PN684
So it could be less than six months to the pilot?---No, six months, your Honour.
PN685
It could be more than six months?---It could be - - -
PN686
There's no more than six months?---It could be more than six months, yes. The minimum could be six months with one of these checks of his ability but if he doesn't demonstrate good ability on that check, it would be longer.
PN687
Well, he's been back since February, it's now six months.
PN688
MR BAKEWELL: No, five.
PN689
MR STEPHENS: My apologies, sorry. I just went to the month (indistinct) the month?---Your Honour, the checks were completed in March.
PN690
Sorry?---The checks were completed in March, from my recollection.
PN691
When Mr Croal returned to Williamtown on 17 February at your request, did he commence immediate recurrency training?---I can't recall other than I know that there were notes on the training reports that there were some delays with other tasking and aircraft unserviceabilities. I don't have the training program in front of me, your Honour.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN692
Due to issues beyond Mr Croal's control, he was denied the opportunity to resume his training either on 1 February or 17 February?---Your Honour, in situations like this, we need two things available to us, we need an aircraft that's serviceable and not on another task and we need a check and training captain. Those two things did not come together.
PN693
When you add in a third element, it's your request that he defer his return to work, he was further disadvantaged, so the delay and then secondly unserviceability of the aircraft?---I disagree with that, your Honour.
PN694
Sorry?---I disagree with that, your Honour.
PN695
What, do you think he was advantaged by being delayed?---No, there was no disadvantage or advantage, in my opinion.
PN696
Well, we've just discussed when Mr Bakewell was about to object to my fairly loose description of six months having passed between February and July, if he had commenced his training at February 1, Mr Bakewell would have less inclination to object.
PN697
MR BAKEWELL: I'm not sure there's a question.
PN698
THE DEPUTY PRESIDENT: Look, I think I understand the point that's being made.
PN699
MR STEPHENS: So it's six months, is it?---Well, that was when the next, what shall we say, schedule check of his ability is due.
PN700
No, my apology, I missed - you're saying that you had required him to complete - the number of months that you refer to is six?---That would be as a minimum, your Honour.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN701
You would also need - - -?---Your Honour, that's from the date of the check has been completed.
PN702
That's all right, no, you said that, I understand that. You also say that you need a commitment from him that he would not be requesting further periods of leave. Do you treat all your pilots like that?---No, your Honour.
PN703
Only Mr Croal?---No, your Honour.
PN704
Well, you're asking him to give the commitment not to take any more leave other than, presumably, statutory entitlement?---Yes, statutory entitlement.
PN705
But you would oppose him taking any more family leave, for example?---No, I wouldn't, but as I said before, the - - -
PN706
Well, if - - -
PN707
THE DEPUTY PRESIDENT: Wait a minute; let him finish, Mr Stephens.
PN708
MR STEPHENS: Yes?---As I said before, your Honour, we man up our rosters with the minimum number of required pilots or, indeed, air crewmen to operate to the work practice. If we have a sit of required pilots or, indeed, air crewmen to operate to the work practice. If we have a situation where we have a large number of people take leave that is unscheduled, then it leaves us in a difficult position to fulfill our requirements to the client as being able to provide the sufficient number of pilots. If this is leave at short term notice, then it makes it very difficult for us to run the roster, as you're required to do.
PN709
So you don't object to pilots requesting personal leave or family leave other than Mr Croal. Is that correct?---I have no objection to the pilots requesting leave, your Honour.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN710
Other than Mr Croal, because you need a commitment from him, before he will be entitled to his career, not to take leave?---Same statement, your Honour, I don't hold it against Mr Croal.
PN711
Well, the fact is that if he did take leave - you're saying you need a commitment that he would not take leave. If he did take leave, what is the consequence of that?---There is - the consequence is, your Honour, that we don't have a pilot in that position for a period of time.
PN712
The process that followed once Mr Croal discovered that the positions had not been advertised or notified to the pilots and the positions being filled, essentially that invoked a dispute or agreements, didn't it?---I can't answer that, your Honour, I was - from 17 or 15 February, I took a month's leave and I wasn't involved in the discussions.
PN713
I guess by the mere fact that we're here, it suggests something, doesn't it? I presume you've seen the material by the applicant in this?---Yes, I have.
PN714
On 18 March, the AFAP wrote to the company on behalf of Mr Croal?---I think I have, your Honour.
PN715
Yes. That was in relation to Mr Croal, the company were concerned about the very thing that we're concerned about today, that Mr Croal, we assert, has an entitlement to a valid standing bid, he's entitled to be given an opportunity with respect to Wollongong and so on. That's the essence of what that letter we wrote on 18 March suggested, isn't it?---I believe so, your Honour.
PN716
Why did the company not respond until 3 April?---I can't answer that question, your Honour.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN717
Well, you were back on duty then. That was written on 18 March, you return duty on 23 March. The letter was not written until 3 April.
PN718
MR BAKEWELL: Deputy President, I wonder if Mr Howe could be directed to the document in question. He might then be able to identify who it was addressed and whether or not he saw the document or was even involved in the process.
PN719
THE DEPUTY PRESIDENT: Certainly. I accept that is a sensible course, Mr Stephens.
PN720
MR STEPHENS: I did ask him whether he's aware of it and he indicated, I thought, that he was, but I'm happy to assist further. Your Honour, it's AFAP5, being an outline of submissions.
PN721
Have you witnessed that?---Yes.
PN722
And AFAP6?---I have the document, your Honour.
PN723
THE DEPUTY PRESIDENT: Given that it's been addressed to Ms Edwards, perhaps she knows why Mr Stephens is referring to - - -
PN724
MR STEPHENS: Well, that is, in fact, going to be my question, your Honour. Were you involved in the advising or the preparation of the response which is AFAP6?---I may well have advised Mrs Edwards, your Honour, of the reasons for the - my reasons for the decisions that were taken.
PN725
THE DEPUTY PRESIDENT: Do you recall doing so or are you just assuming that you might have - - -?---The first AFAP letter is addressed to Mrs Angela Edwards, who is our HR director. I was aware of the three personnel that had a claim and there may have been some email traffic or indeed discussions with Mrs Edwards as to the content of the statement, particularly with Mr Croal and Mr Tweedie.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN726
MR STEPHENS: Do you have any knowledge as to why it took the company some seven weeks to respond?---I have no idea, your Honour.
PN727
But the reality is: by the time 18 March had come, through to 3 April, motions were well and truly underway, aren't they, in filling the positions? By that stage, offers of employment - - -?---Your Honour, it's about two weeks in my reckoning between 18 March and 3 April.
PN728
Three weeks in, yes, you're correct, but within that period steps are well and truly underway, aren't they? Offers of employment had been put out, have been made, approaches to Air Services Ambulance Services New South Wales have been made?---I can't answer that, your Honour; I was on leave until 23 March.
PN729
But you do know as a matter of fact that had occurred by 3 April. You've already given evidence to it?---I'm aware of the letter, yes.
PN730
But in relation to offers of employment?---That may well have taken place while I was on leave.
PN731
Offers of training?---As I said, it may well have taken place while I was on leave, your Honour.
PN732
Mr Frankel, for example, formally accepted his position of offer in early April 2014. You're back at work well and truly by then.
That's just Mr Frankel?
---The letter I have here from Mr Frankel is signed on 23 March, your Honour.
PN733
I have Mr Frankel's witness statement, he's attested to the truth of it?---The letter in my pile of documents here has got Mr Frankel's signature on 23/3/14 accepting the letter of agreement, which was written on 21 March, your Honour.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN734
Are you saying Mr Frankel's evidence is false?---I can't answer to Mr Frankel's evidence, your Honour. I accept the documents I have in front of me.
PN735
So knowing then that the matter is subject to a dispute, and that it had been raised on 18 March, there was no response until 3 April, why did the company press ahead?---I can't answer that question, your Honour; I wasn't back at work until 23 March.
PN736
Well, you knew at - the response was from the company on 3 April. He wasn't at work by 3 April?---I don't know why it was done that way, your Honour.
PN737
MR BAKEWELL: Deputy President, just by way of clarification, I think the notion of "pressing ahead" might need some context if Mr Howe is to properly respond to that. As I understand his evidence, he's saying, "I was on leave, I returned on the 23rd," and based on the documents that he has before him, offers of employment were accepted within that period.
PN738
THE DEPUTY PRESIDENT: I think that's sufficient because obviously Mr Stephens can develop his submissions and conclusions he draws from that factual sequence. I think the (indistinct) in relation to the expeditious intent of the dispute resolution procedure in contrast to what actually happened.
PN739
MR STEPHENS: Yes.
PN740
Were you involved in the conciliation conference with the commission on 29 April?---I can't recall, your Honour.
PN741
Now, in paragraph 67, you talk a bit about the replacement process after a standing bid has been honoured. Do you see that?---I do.
PN742
Sorry?---Yes, I have it.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN743
That's a process of backfilling, effectively, isn't it, when a vacancy is created in one base and is filled by standing bid, that
creates a vacancy in the other base, and that's filled by standing bid, theoretically, if there is standing bids available?
---That's correct, your Honour.
PN744
And if there are continuing standing bids, they will be filled that way, won't they? This process that you describe there, that is nothing more than the standard bid system?---That's correct, your Honour.
PN745
Yes, and that's precisely what the parties agreed as what they contemplated the arrangement would be when they agreed the EBA?---I wasn't involved in the discussion of the EBA or the formulation of the EBA, your Honour, but that's my understanding of how it should work, and you could have, for example, three steps to replace Mr Croal depending on what the standing bids were.
PN746
Yes, and you could have one or you could have five, couldn't you?---Yes, that's right.
PN747
Yes, it's kind of a cascading kind of process, isn't it?---It is, your Honour.
PN748
That process, and you refer to the cost of that in your statement, don't you?---I do.
PN749
That's a cost of doing business under the - isn't it?---Yes, it is, your Honour.
PN750
The way to avoid that cost, of course, is to recruit externally?---That is one way to do it if you don't have any standing bids that are valid, your Honour.
PN751
Or even if you do have standing bids valid, you do it and then try and unscramble - - -
**** PETER JULIAN HOWE XXN MR STEPHENS
PN752
MR BAKEWELL: I object, that's a statement.
PN753
THE DEPUTY PRESIDENT: Yes, it's certainly a very loaded statement, Mr Stephens. You can put that to me in submissions.
PN754
MR STEPHENS: It was put at a half volley to me, your Honour, and it was undeniable. Now, just dealing (indistinct) in relation
to paragraphs 85 to 87, am I correct in your evidence there that you would not terminate the pilots?
---No, we wouldn't, your Honour.
PN755
Am I correct there at 87 of your statement that you would not seek to put them into oil and gas stream; in other words, to offshore?---From our experience previously and I think in my statement, if I can get the paragraph for you, Mr Rothwell did not meet the standard to operate in the Wollongong operation on an AW139, and we were able to move him into the oil and gas stream, that's going back a year or so. What we found with our clients in the oil and gas stream now is they're not accepting any pilots who don't have previous oil and gas stream experience, and so the two gentlemen we're talking about here, Mr Frankel and Mr Dixon, had no offshore experience and we wouldn't - we couldn't put it up to our clients, your Honour.
PN756
So there's no prospect or threat that they will be - the company would seek to put them into offshore?---The client won't accept them, your Honour.
PN757
I guess that's the answer, yes, isn't it, the company would not - - -?---The company may choose to, your Honour, but the client will not accept them.
PN758
Yes. Paragraph 80 and 89, and even 90, Peter, the concerns that you raise there are no longer live concerns, are they, Mr Tweedie is resolved?---Yes, your Honour, Mr Tweedie's issue has been resolved.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN759
So, therefore, they're no longer concerns, 88 to 90 are no longer concerns.
PN760
THE DEPUTY PRESIDENT: I want an opportunity to read those statements?---I think 89 - sorry, my apologies.
PN761
MR STEPHENS: Well, 89, the commission is not going to determine that Mr Tweedie's claim is invalid?---No, 89 was an opinion at the time, I believe, your Honour. Do you want 90, Mr Stephens?
PN762
Yes, I've invited 88 to 90?---Right. The first sentence, I believe, your Honour, remains valid, so if Mr Tweedie has claimed that Wollongong is valid, which there has been an agreement, then Mr Croal will be offered the next base vacancy based on his standing bid, and because he has many years in the company, the seniority, it would be well protected from the seniority point of view.
PN763
That's the agreement, isn't it?---It is.
PN764
Can I just now very quickly take you to your supplementary statement? We're rapidly approaching the end of this. You refer there to, and you might just clarify this, in paragraph 1 of your witness statement, you refer to Stefan, that's Stefan Sincich, "had a valid standing bid for Wollongong as a second preference." Do you say "second preference", is that rated?---No, it was a way of describing it, your Honour, it was his second choice. I think the previous standing bid system, the headings used to be First Preference, Second Preference and Third Preference. It was a way of describing it, your Honour.
PN765
But you agree that all bids have equal preference?---Yes, your Honour.
PN766
So where Mr Sincich said he had a bid at number 2 on the list for Wollongong, that's as good as having a bid as a priority, isn't it?---Yes, your Honour. He also goes on to say further - we've known these pilots over many years, Mr Sincich lives in Latrobe Valley, he doesn't want to move and we've just recently moved him from the East Sale Base at Sale to Latrobe Valley in accordance with his standing bid.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN767
You moved him to the EMS base in Latrobe Valley, didn't you?---Correct, your Honour.
PN768
You've lost that contract, haven't you?---It's - we finish the present contract period at the end of next year, your Honour.
PN769
Yes, so Mr Sincich may have had an interest in preserving job security?
---Interesting enough, your Honour, the contract in Sydney falls due on the same date as the one in Victoria and the Wollongong contract.
PN770
The Wollongong contract is not lost?---The Wollongong contract is under tender at the moment, your Honour.
PN771
Yes, but it's not lost?---It's not lost, no, your Honour.
PN772
We hope to keep it, don't we?---We do, your Honour.
PN773
Yes. You didn't let Stefan know that there was a vacancy in Wollongong?
---Knowing what Mr Sincich wanted, your Honour, to go to Latrobe Valley for many years, he was given his standing bid for Latrobe
Valley.
PN774
And, of course, it suited not to let him know because you were able to avoid a backfill situation, weren't you?---I disagree with that, your Honour.
PN775
As a result of not letting him know, did you avoid a backfill situation?
PN776
MR BAKEWELL: I object. This whole concept of, you know, deliberately not letting him go is just being denied and that statement was premised with that knowledge is correct.
**** PETER JULIAN HOWE XXN MR STEPHENS
PN777
THE DEPUTY PRESIDENT: It's also, Mr Stephens, somewhat removed from the matter at hand of Mr Croal's situation.
PN778
MR STEPHENS: To one extent, but to this extent it is central because all that's required is a valid standing bid for the agreement to be activated.
PN779
THE DEPUTY PRESIDENT: All right. Well, ask your question against without the pejorative assumption.
PN780
MR STEPHENS: I think I've asked the question and Mr Howe has answered the question that Stefan had a valid standing bid for Wollongong. Can I just - one second.
PN781
THE DEPUTY PRESIDENT: Certainly.
MR STEPHENS: That's all, thank you, your Honour.
<RE-EXAMINATION BY MR BAKEWELL [3.36PM]
PN783
MR BAKEWELL: I only have two matters that I wish to get some clarification on that arise directly from cross-examination. Mr Howe, under cross-examination, I think you were asked some questions from Mr Stephens about command of instrument rating in seeking to draw the distinction between civil and military, and you made some comments regarding, I think, Mr Frankel and what your understanding is of the practice of your client with respect to acknowledging a military weighting. Could you please explain what that knowledge is?---What we're able to do, your Honour, is when we draft the letter to go to the client to introduce a new candidate or a new pilot or crewman, we're able to make a statement of where they match or don't quite reach the contract requirements, or where there may be a (indistinct) clause. In the sense of Mr Frankel, for example, may well have had five years of military command rating renewals. They are at the same standard as our commercial rating because we share the same airspace, and so that would be one of the alleviations of you would suggest to the client to say this man comes from military, been flying Black Hawks, he has this, he's done that, and the same thing with the NVG. He may not hold the NVG approval at this time; however, he has, for example, 400 hours of NVG flying, which the military do it in a lot more difficult conditions than we do, so the client usually accepts that. By the same token, we wouldn't put up a candidate to the client that didn't meet their requirements unless there was some alleviation and, you know, worthwhile alleviation, and so in this case, to suggest a candidate to them that hasn't flown regularly for two and a half years would be, because they have their own aviation advisers, they would reject the candidate, I'm sure.
**** PETER JULIAN HOWE RXN MR BAKEWELL
PN784
One further question, Peter. You referred to a period, I think you stated, of six months of regular flying for Captain Croal at Williamtown and you also refer to the next check. Both those matters were something that you said that you would want to see satisfactorily completed. Is that in the context of overcoming your concern about recent flying or lack of recent flying?---Yes, it is, your Honour.
PN785
So the issue of six months is concurrent with the issue of the next check?---Yes, if there was some compelling reason we started a new contract and we needed pilots on a particular type for a new contract, yes, you would, you know, you would look at all of your suitable candidates. In this case, it is partly we can say that we do the six monthly checks and this is one of those bench - well, not benchmarks, but a period that you can - - -
PN786
Milestones?---Milestones that you can recognise in the manual. There are forms that we have to fill out when the candidate does those checks, so you've got a written record, and the expectation would be he would do it with the same training captain, as recurrence earlier this year, so you wouldn't expect to see any of those same comments as were made last time. You would brief the training captain to say, "This is important," so you would expect a positive comment in there that, you know, "This has been much improved from earlier in the year."
PN787
Thank you. I have one last question - actually, I do have three. Amongst the last questions that Mr Stephens asked you, he referred to the Latrobe Valley contract and the fact that, that contract, I think, in your evidence, has been lost, and you lose that contract at the end of 2015. Is that correct?---That's correct.
PN788
Is it necessarily the case that the pilots who are employed on that contract would be the pilots who are made redundant, based on your understanding of the enterprise agreement? If I might prompt you. Are you aware of a thing called a "redundancy matrix"?---Yes. We've had discussions - the company has had discussions with the pilots and the crew on these two bases, and so we have two bases in Victoria on the contract. There are four pilots on each base and four crewman, so we have eight pilots and eight crewman. We're looking to see what the options are for those pilots, and so, as I said before, some of them have previous oil and gas experience or flying offshore, and that's simply an avenue that was open to them. On another base there is very little of the offshore experience, so they would either need to be re-deployed in the company or else they would perhaps taken up by the new contract holder as their pilot staff. There is a redundancy matrix, and those pilots - the entries on that are number of years in the company, number of types, the qualifications you have. They are at somewhat of a disadvantage in the sense that in most cases they're only operating one aircraft type, so they don't get a number of aircraft type advantage or rating for that, but the intention or the discussion has been that some of the pilots discuss redundancy, or indeed we have to re-deploy them if we're fortunate enough to win the New South Wales contract, we're going to need more pilots, and so we would be able to offer them a position in New South Wales, perhaps, if they were willing to move.
**** PETER JULIAN HOWE RXN MR BAKEWELL
PN789
Put simply, Mr Howe, is it the case that the question of whether a pilot would or would not be made redundant is not merely dependent upon what contract you work on but rather what score you would get in the matrix?---That would be part of the discussion, your Honour, yes.
PN790
No further questions.
PN791
THE DEPUTY PRESIDENT: Nothing from me. Your answers have been appreciated?---Thank you, your Honour.
You are excused.
<THE WITNESS WITHDREW [3.43PM]
PN793
THE DEPUTY PRESIDENT: Your next witness is, Mr Bakewell?
PN794
MR BAKEWELL: I believe that concludes our case, Deputy President.
PN795
THE DEPUTY PRESIDENT: All right. Do you want to make more remarks, Mr Stephens, or would you like to save them for replying?
PN796
MR STEPHENS: Our normal course is: we will put our closing, they will put theirs. I think, in fact, we have an agreement as to the process in the EBA and that we would have a right of reply to that, so I'm happy to kind of proceed on that basis - - -
PN797
THE DEPUTY PRESIDENT: Yes, certainly.
PN798
MR STEPHENS: - - - if you're happy with that.
PN799
THE DEPUTY PRESIDENT: Yes.
PN800
MR STEPHENS: Your Honour, what do we know from today's proceedings? We know that other than recency Mr Croal satisfies the criteria of the New South Wales contract, and recency in itself, however, is not a part of the criteria for the New South Wales contract. He meets all of the criteria, and to that extent at least equal to, if not, more than others. Indeed, as with Mr Frankel and Mr Dixon, he didn't have the endorsement on type, he held a civil instrument rating, but Mr Frankel did not, none held NVG endorsements at the time of their appointments and none were endorsed on the 139. We also know that that neither Mr Frankel nor Dixon are, at least now, in fear of their job or being displaced.
PN801
We heard from Mr Frankel that although some inconvenience in accommodating additional pilots, it does occur. In fact, your Honour, the accommodation of additional pilots or surplus pilots, however you want to characterise it, is in fact a provision of the EBA, it's contemplated by the enterprise agreement. Indeed, the employer must employ additional pilots designated as what they call "floating pilots", and if they do not by definition they will not complying with the EBA. I might draw your attention, your Honour, to clause 34.7.3. I'm going to guess that the numbering is the same. It's page 49, maybe.
PN802
THE DEPUTY PRESIDENT: Yes.
PN803
MR STEPHENS: You'll see there that clause 34.7 talks about rostering provisions for permanent work - and "WP" stands for work practice - work practice 6 base Wollongong. Wollongong is a work practice 6 base, and it requires at 34.7.3 that, "In order to support a fixed line roster floater pilots will be required. A floater pilot will be utilised to cover all these things and other absences on the roster." It's not an unknown quantity to have additional pilots in order to make the roster work. In relation to having one or maybe two additional pilots, as I said, the consequence is merely an inconvenience, according to Mr Frankel, but not insurmountable.
PN804
We know that there are pilots who had bids for Wollongong, we know there are at least three. Of them, the company challenged one on how he framed his bid, being Mr Tweedie, but was subsequently accommodated by agreement. The second is Mr Croal, who the company has challenged not the validity of his bid but recency resulting from his family leave, the question of recent flying as a consequence of family leave, so it's not a question of him not having a valid bid or otherwise, they're simply concerned that he didn't have recency. Mr Sincich, Stefan, who the company has confirmed in Mr Howe's supplementary witness statement, "had a valid bid".
PN805
None of the pilots, whether it be Mr Frankel or Mr Dixon or Croal, Tweedie, Sincich, were endorsed on the 139. In other words, whoever got the gig was going to need to be trained on the 139. It's out submission that each of those pilots nevertheless had a valid bid. It's unquestionable that Mr Sincich had a valid bid, and it's awfully apparent that Mr Croal had a valid bid. The company seeks to challenge that, but in doing so it is inconsistent and selective in the way it goes about it. On the one hand, for example, they say that Stefan Sincich was not endorsed on the 139, but neither was anyone else, including the two successful candidates.
PN806
On the other hand, they claim that Mr Croal didn't meet the requirements, but Mr Frankel didn't have a civilian instrument rating, while Croal, Tweedie, Sincich did and continue to do so. Similarly, they complain that Mr Croal didn't have an NVG endorsement, but again nor did the others. Your Honour, this is going to be very brief submissions. This is why this is not, and this is what I hope to make clear at the beginning of these proceedings, in stressing that this is not about comparing for the purposes of merit. We're not here to say that Mr Croal is better than Mr Dixon or Mr Dixon is better than Mr Croal and so on. We would not do that. The AFAP people would not do that.
PN807
We know the pilots operate to standard operating procedures, and by and large they are competent, and you might sort of say with some sort of biased, we think that they're pretty good. That's why we don't go down that path of arguing the point of merit. What we do, though, Commissioner, is this: we stand up for the agreement. In standing bid systems and in seniority systems, pilots live and die by them. They are very much a double edge sword. Notwithstanding that, the integrity of the agreement must be respected and must be honoured and must be upheld otherwise we have industrial anarchy.
PN808
THE DEPUTY PRESIDENT: While we're on that, maybe I should ask my question or make my comment and you can comment on it.
PN809
MR STEPHENS: Yes.
PN810
THE DEPUTY PRESIDENT: It would seem that the underlying motivation for that, and, as you say, it's not just in this agreement but common in others and a feature of the airline industry, is because it's not an every day occupation that a person can, particularly given a location or preference, be employed in. It's not the hospitality industry, it's not even, with the greatest respect to the legal profession, it's quite a unique occupation with a small number of potential employers, and so to obtain job security and career progression simultaneously over the years this system has been established.
PN811
MR STEPHENS: Yes.
PN812
THE DEPUTY PRESIDENT: Is that a fair summation?
PN813
MR STEPHENS: That is a fair summation, and you have to recognise it sort of alongside the seniority system as well, that one sits with the other. Seniority sits with the other for those very reasons. In fact, in relation to the standing bid system, that was by and large put into place to temper straight out sole seniority, if you like, where the person who is most senior on the list they would forever be the chosen one, to put it that way if you like. The standing bid system was introduced in order to temper that and allow all pilots equal opportunity to nominate, in the case of CHC, the difference in different companies. In the case of CHC, to nominate whether or not they want to be in a particular stream or whether in a particular base, and the seniority simply comes in to support that to split the decision, if you like.
PN814
THE DEPUTY PRESIDENT: To break a deadlock.
PN815
MR STEPHENS: Yes, that's right. That's the background to that, yes. Your Honour, what we also know is that from Mr Howe's evidence, unequivocal evidence, I think, on this particular point at least anyway, is that the company did not notify pilots of any vacancies.
PN816
THE DEPUTY PRESIDENT: I think that's conceded in the agreed facts.
PN817
MR STEPHENS: Yes, it is, and similarly so in relation to evidence. What we do also know, and again it's in fact and it's also in evidence, that there were in fact two vacancies. One was created by a transfer by Mr Holder and another by a new permanent position. What we also know, and this came directly from Mr Howe's evidence, that the company did not notify pilots of the newly created position. Let's not worry so much about the one that was created by virtue of the standby, they didn't notify of the newly created position, and in not notifying of the newly created position they did not allow pilots to change their bids in relation to those specific positions.
PN818
THE DEPUTY PRESIDENT: Yes.
PN819
MR STEPHENS: That's uncontroverted. If I read the respondent's outline of submissions correctly, it appears, to us at least anyway, that they seek to take this dispute to a very, very narrow point but ironically broaden it to a point where it has been stretched unreasonably. In particular, the argument is, and Shane will no doubt elaborate, but the argument seems to be captured at paragraph 31 of the respondent's outline of submissions where the respondent seeks to take the words "if there are no current standing bids for a permanent position" to mean something far more than what the words actually say, to suggest that it means "for a vacancy held by a pilot that meets the vacancy criteria".
PN820
If that's what the parties intended the words to mean, the parties would have put those words in. The words "if there are no standing bids", on its very plain mean "the absence of standing bid". If it was meant to be anything other than that, the word "no valid standing bid" might be included, but the word "valid" is not. If it was intended to do as Mr Bakewell suggests, it may well have included the words "a vacancy held by a pilot that meets the vacancy criteria", but it doesn’t say anything remotely resembling that.
PN821
THE DEPUTY PRESIDENT: Or it might have usefully defined.
PN822
MR STEPHENS: Or it may well have usefully been defined, and I'll lay money that it's not.
PN823
THE DEPUTY PRESIDENT: I've already checked for that, don't worry.
PN824
MR STEPHENS: I'm not going to stand here and pretend I'm qualified to give the commission a lesson on interpretation of agreements.
PN825
THE DEPUTY PRESIDENT: Feel free.
PN826
MR STEPHENS: The rules are very simple. If the plain reading is suffice, that is the meaning of the agreement. Where the words are plain an unambiguous, there's no need to go beyond them, and they are capable of being read in their own right. Many in authority, it has made very clear that it is not the role of an arbitrator or even a judiciary to insert into an agreement words that changes meaning in order to address a desire of one of the parties. We would suggest that to add the words suggested by the respondent as inferred by paragraph 31 would be stretching the agreement and the words to the point of breaking point in order to have them read as it is suggested that they read.
PN827
I'll cite them, we have, of course, Codelfa, we have Kucks, and of course Madgwick J's probably famous citation from Kucks, we have a very recent decision, in fact, involving a full bench in Australian Federation of Air Pilots v Civil Aviation Safety Authority that made it very clear again, only as recently as last week, a full bench decision, that the words are clear, and when the words are clear you need look no further than that. We say that there is nothing unclear about the words "if there are no standing bids current for a permanent position". Let me say this, your Honour, that even if there were no standing bids at the time, even if there were no standing bids, I'm not even relying on valid standing bids, but if there are no standing bids, and, therefore, even to take the respondent's argument, even if there were no standing valid bids the company cannot proceed under the agreement in the manner that it did.
PN828
It's constructed an argument to say as they had at 31, so therefore because of that argument as constructed at paragraph 31 of the outline of submissions we can then move beyond 24.2.7 and immediately into 24.2.8, that is, advertise externally. However, before we even get past clause 24.2.7 they must comply with clause 24.1.5. 24.1.5 relevantly says in the last paragraph - actually, I'll go back to 24 to read it in the context.
PN829
If there are no valid standing bids for a permanent position and in the case of a newly created permanent position, after the process in subclause 24.1.5 the company may at its discretion internally or externally recruit.
PN830
After the process in subclause 24.1.5. Now, subclause 24.1.5 relevantly says:
PN831
If a newly created permanent position become available, they will be notified to pilots and a period will be allocated to allow bid changes in relation to those specific decisions.
PN832
Mr Howe's very specific evidence was a new permanent position was created. That immediately activates 24.1.5. Mr Howe conceded that the company did not do that as much as they did not notify of vacancies. Even if we extent with as much generosity as humanly possible to the respondent that Mr Croal did not have a bid that met the requirements, at that point, according to 24.2.5, they were then nevertheless obliged to give effect to clause 24.2.9, and that is should a situation arise in furtherance of subclause 24.2.5 it would not meet the needs of the company and a solution cannot be agreed between the company and the pilots a conference shall be convened between the parties to achieve a solution.
PN833
They didn't do that either, and they say they didn't have to because Mr Croal didn't meet the requirements, but they forget they had two other things they needed to do before they get beyond that. They had to comply with 24.2.2 and then they had to comply with 24.2.7 and subsequently 24.1.5; none of which was done. The consequences of that failure sit before you to my right. Mr Croal's been an employee, a pilot with this company for an excess of 20 years. He's had 29 years' flying experience. He was off on a period of family leave. The company knew in August last year he was interested in the 139 operation, but they didn't contact him, and they say they didn't contact him because, "Well, you know, you were on family leave."
PN834
That is a lame reason, a very lame reason. The reason it's a very lame reason is because they were in communication with him at the time. It's not a matter they had to contact him because he was on family leave, they were in communication with one another, they had exchanged the emails that you see before you, your Honour. Mr Croal was emphatic and unmoved in his evidence that he spoke to Mr Howe on the telephone in relation to this very issue. It wasn't a matter of needing to not disturb him, he disturbed himself and they didn't contact and nor did they advise him. However, at the same time they were having discussions with others, as the evidence of at least Mr Dixon about the possibility of positions becoming available and then subsequently making offers of employment open to people.
PN835
Mr Croal's return to work from family leave was delayed at the company’s initiative. I know I banged on a little about it in cross-examination, but this is the same employer that raised concerns about the quality of Mr Croal's flying capacity because he hadn't been recent. I suggest that's a little disingenuous. If they were genuinely concerned about his recency, they wouldn't be suggesting to him, "Have another couple of weeks." Of course, what was happening at this time was that the company was in the midst of making offers, others in good faith, were in the midst of accepting, training arrangements were being put in place, then of course shortly after a dispute was invoked through the letter from the AFAP from 18 March, the company left it until 3 April to respond, we had a notification of a dispute to the commission, we had a conciliation conference and we had today, but at no stage did the company take a view that, "Let's just hold because there is a dispute happening here."
PN836
The consequence of that dispute may be that Mr Croal might be successful in having the agreement applied in his favour and be provided with training. The consequence of that may be that people may need to go to Wollongong. The company pressed ahead, and in doing so now seeks to argue, and as you can see by the witness statement of Mr Howe at around about 87 to 90, effectively talking about the scrambled egg that would need to be unscrambled. We submit that is when a deliberate strategy to simply scramble an egg and come before the commission and say, "You can't unscramble that egg," you know, and it might be suspicious, but that's probably more due to the number of grey hairs that have grown as a result of this role.
PN837
The effect of that is to essentially attempt to usurp the jurisdiction of the commission, and that's unacceptable. Even if that was not intended and it was just a normal consequence of the process and they didn't have that intention, it is the consequence, but the commission has the capacity to deal with this dispute in accordance with the enterprise agreement in a manner that the commission considers appropriate. In relation to the issue of cost, we touched on that. Mr Howe's evidence on several occasions throughout refers to the cost implications on the company in fulfilling the standing bid obligations, and we also conceded that, that is the operation of the enterprise agreement.
PN838
It's not just the operation of this particular enterprise agreement, that's the operation of enterprise agreements within the aviation industry generally, and Mr Howe conceded that in fact fulfilling the standing bids through that cascading type effect is a cost of business. To run an argument and to try and sway an opinion based on costs where that cost is an ordinary cost of doing business and at the very least a cost involved in compliance with the enterprise agreement; well, that's a consequence they must accept, and indeed that's a consequence they accepted when the company signed up the EBA. Cost is not a relevant issue in this consideration.
PN839
We would submit, your Honour, that the agreement has not been complied with, and you don't need to find that the agreement has not been complied with, with every clause that we identify, you only need to find that the agreement has been not complied with, with one aspect of it, because any one of those clauses in which the agreement has not been complied with has the consequences of us being where we are today, Mr Croal being in the situation that he's in today, all because the pilots were not notified. Any proposition that stretching of the words in the EBA changes that is an erroneous submission because they cannot move to advertise externally, as they did, unless and until they comply with clause 24.1.5.
PN840
The reason why 24.1.5 is there is because it's in relation to a new permanent position, it creates a new situation. A situation is created where there are new permanent positions available which weren't known at the time when pilots put in their initial bids but have subsequently become available, and so as to ensure that everybody has got an opportunity to make a contemporary bid the pilots are entitled to submit new bids or change their bids. Not only did Mr Croal be disadvantaged but potentially other pilots as well who may have thought, "Well, gee, that's something I'd be interested in. I'm going to change my bid in accordance with clause 24.1.5 and put in a bid for Wollongong."
PN841
Then, of course, the agreement applies, seniority kicks in and so on and everything looks after itself. As said before, it's a double
edge sword, it's one that we live by and it's one that we die by. We simply say that it's a term of the agreement, what we live
and die by we submit that the company ought to comply with it. They are our submissions, your Honour, unless there are any questions.
THE DEPUTY PRESIDENT: No, that's fine, Mr Stephens. Thank you very much. Okay, Mr Bakewell.
PN842
MR BAKEWELL: Thank you, Deputy President. The first matter, I guess, I wish to raise is the issue of what this dispute is about, in the sense that this is a matter concerning a dispute raised by Captain David Croal regarding his bid and his grievance, his view about his entitlement to one of two vacancies that exist in Wollongong. It's about Captain Croal, the evidence is about his circumstances and the orders that I understand the AFAP are seeking in this matter are orders pertaining to a remedy for Captain David Croal. In that respect, it's our view that the matters that you need to decide are the matters that are relevant to Captain David Croal and how those matters impacted or did not impact upon his rights under the terms of this agreement and what CHC did in terms of the agreement.
PN843
THE DEPUTY PRESIDENT: Can I just ask you to turn your mind, though, to whether or not what you have just said is, in your view, congruent with the two questions that I understand the parties have agreed in answering?
PN844
MR BAKEWELL: Yes, I believe it is, and that's evident in the remedy that is being sought. In that respect, this matter is not able Stefan Sincich, this matter is not about a pilot who might have applied for another position, because they're not here. This matter is about Captain David Croal, his situation and how the situation impacted upon him. In that respect, Deputy President, our case is relatively straightforward. We don't contest the fact, albeit due to circumstances described in the witness statements, that the company failed to advertise the vacancy; we concede that. What we don't concede, though, is that the failure to advertise the vacancy affected Captain David Croal.
PN845
It's agreed in evidence that Captain David Croal had a standing bid for Wollongong. Whether or not there was an existing position or a new position doesn’t change that fact, he had a standing bid in for Wollongong, and that standing bid was valid for either the existing position or the newly created position, there's no difference. It is not contested in the evidence that the chief pilot, Peter Howe, had regard to that standing bid. Uncontroverted, he said, "There was a standing bid for Wollongong by Captain David Croal and I did look at it and I did take it into account when I made my decision." Now, I'll turn to the agreement and what we say about the agreement and how that all plays out.
PN846
This is covered more extensively in our outline, but I'll just take you to what I believe are the relevant parts based on the evidence that is before you. Clause 24.2.1 requires the company to fill permanent position vacancies in classifications contained in the agreement in accordance with the foregoing clause. We agree that the pilots weren't notified of the vacancies, but in this case we contend that matter did not affect Captain Croal because he had bid in for Wollongong and that bid is agreed to be a bid that was in and a bid that was considered. Clause 24.2.3 is irrelevant to the matters that are before you because it does not involve the appointment of the provisions of chief pilot, senior base pilot or a check and training pilot.
PN847
Clause 24.2.4 confirms the view that I have just expressed, which is that whether it was a permanent position, newly created or a current permanent position, that position that is vacated will be filled from the list of applicants who have expressed interest in the position using their standard bid. If we apply that to Captain David Croal, he is a person who had a standing bid in for Wollongong, we concede that, but the clause says "and who meet the criteria", it's not all.
PN848
THE DEPUTY PRESIDENT: I just might stop you there and just test out another, one might say, raw principle in the way that I did with the AFAP that, yes, at the same time as the AFAP has, and the airlines generally, developed, obviously by agreement with employers of pilots, a framework that they seek to support the job security and career advancement of pilots, this company, and I'm presuming others, but you can only speak for this one, has sought to make that framework conditional upon its particular needs being met, which include on the basis of the evidence that I've heard today in the primacy of, say, flying, the importance of - well, in fact, the overriding importance of clients being satisfied with the pilots and the economic viability of the organisation. Is that a fair summation of the principles?
PN849
MR BAKEWELL: Yes.
PN850
THE DEPUTY PRESIDENT: Hence the use of the term "criteria".
PN851
MR BAKEWELL: Yes. It's the evidence of the company that a fundamental issue here faced with the chief pilot in the case of Captain Croal in looking at who met the criteria was the issue of the lack of recent flying. It was fundamental and jumped out at the chief pilot as an immediate, "I cannot consider you, you do not meet the criteria. You do not have current flying experience," and we have heard the reasons why that is an important matter, why it is a critical matter and why it was a fundamental matter that was before the chief pilot in his consideration. I think any notion that having no recent flying experience is not a criteria has not been challenged, and I don't think it can possibly be challenged on the basis of the evidence that is before you, particularly in regard of the fact this is not a situation where the chief pilot subjectively pulled out of the air some type of criteria that suited him at the time, and this is a fundamental issue.
PN852
Recent flying experience is a fundamental issue. If I could draw by way of example this issue of recent skills being relevant to safety and what have you, we heard in the evidence of Captain Croal, for example, at the base that he operates at, at Williamtown, because it is a low level flying base with very little actual flying and responding to incidents, they have to undertake constant drills everywhere covering a whole range of factors, and the reason you have to undergo those drills is to keep your skills up to date, relevant. If I could draw the analogy, it would be something like a person who is practicing in your own position, being away from the art of being a commissioner for 20 years, although, yes, you have that experience behind you there is nothing like the recency of what you are doing to hone those skills, to sharpen those skills and to ensure that you can carry them out competently.
PN853
This was not the case, for example, of a pilot who had been on leave, let's say, for four weeks, and the evidence even is at any period of time your skills degrade. This is a person who was on leave without pay, albeit for personal circumstances that no-one is saying weren't relevant or were appropriate, for a long, long, long time, and the chief pilot has had regard to that, it stood out to him as someone who simply could not meet the criteria especially for the job that is being put forward.
PN854
THE DEPUTY PRESIDENT: Let me stop you there. Without wishing to torture the analogy of a member of the Fair Work Commission or anyone for that matter, let's say a lawyer in legal practice. Let's make it a woman who has had a baby and taken advantage of 12 months maternity leave and during that time there have been changes in the statute that underlies, let's say it's tax. We know how complicated that is, and how (indistinct) is, so what do you say the employer's obligation is in respect to such a person to ensure that they have equal opportunity in maintaining the trajectory of their career notwithstanding the fact of family responsibilities?
PN855
MR BAKEWELL: Yes, certainly. In this case here, I don't think there is any advantage or disadvantage. The issue for an advantage or a disadvantage here naturally accrues for the period of time that a person seeks to be away. You can't remedy a situation where someone doesn’t fly. This is particularly so where the overarching framework within which the employer operates, unlike the legal fraternity here, if you don't mind me saying so, is a safety framework where Chief Pilot Howe carries a personal responsibility and liability for the captains that he appoints. He is responsible for that decision, and this is a matter that goes to safety and he has expressed that view.
PN856
His view about that, which has, in my view, not been challenged effectively at all, is that in a circumstance that Captain Croal had, what he would need to see is a period of six months of flying back on the line. Why six months? There was two reasons proffered: (1) because the contract that he is working on is a low level flying contract, it's not a high flying contract where your skills might come up to speed quicker; (2) at the end of that six month period, a second check would be carried out by a person appointed by the chief pilot, being a check and trainer, to confirm the position of Captain Croal and his six month return from leave.
PN857
The evidence is had that period elapsed, or at least that period, I might well be satisfied that the issue of current flying experience has now been dealt with. I think his evidence is, "Had that been the context, or were that the context, then most certainly Captain Croal has a valid standing bid. Captain Croal is a very good pilot, and Captain Croal, on all accounts, should a vacancy occur and should the client accept him, would be accepted in the Wollongong vacancy." That is the effect, but unfortunately this is a circumstances where he is faced with a factual situation of two and a half years of not flying and he cannot let that issue go. The only way in his evidence he has said that he can deal with that is by having that flying experience happen so he can see it, he can assess it and deal with that issue.
PN858
The company's view, Deputy President, was, for the purposes of clause 24.4.2, it's unfortunate timing, however, at the time Captain Croal did not meet the criteria. We say where one of those two things don't happen, in other words, you don't have a standing bid or you don't meet the criteria or both, that is the end of the section as far as the company's obligations are to deal with the standing bid, in this case, to deal with Captain Croal's standing bid, and Chief Pilot Howe proceeded on that basis, made that decision and made that decision in all good conscience for the right reasons. Therefore, the proceeding rights that accrue in terms of the enterprise agreement in clause 24.2.5, by way of example, doesn’t even get a look in because you have to have passed the gate at 24.2.4, which is that you have a standing bid and you met the criteria.
PN859
If you're through that gate, well, now we select you on the basis of your qualifications, experience, relative seniority, et cetera. In other words, our view about that is that assumes probably more than one person is through the gate and how do we now rank you, how do we determine which of the pilots with a valid standing bid and who meet the criteria, how should they be selected, and we didn't get to 24.2.5 in our submissions. What we also say is that we have led evidence which in my view wasn't challenged, and it's in Chief Pilot Howe's statement. We took a hypothetical, and we said:
PN860
Even if there was a valid standing bid for Captain Croal in the circumstances, given the situation that was at hand with Williamtown and the requirement to train a replacement and the urgency of the sequence of events that needed to occur for the vacancies to be filled on the ASNSW contract, the employer would have invoked the provisions of clause 24.2.9.
PN861
We concur with the submissions of Mr Stephens in that respect in that it obliges the parties where their mutual needs cannot be seemingly met, to sit down and discuss it and try to resolve it on terms that are mutually acceptable to them. That's our view about the operation of clause 24.2.9. Put simply, the company would say, "Pilot X, you've got a valid standing bid, but we've got a problem with that because it doesn’t meet our needs." The needs of the company aren't defined, and using the natural and ordinary meaning of the word, and this is set out in our submissions, it would include a range of factors, including timing, the importance of the contract, the issues of filling other vacancies or whatever they might be that are impinging on the circumstances at the time would all be matters that are valid and all be matters that could be discussed in terms of meeting a mutually agreeable outcome.
PN862
I raise that, Deputy President, because you would have noticed in our submissions that we do take a little bit of an issue with the nature of the order being sought, that is, if the Deputy President finds based on the evidence that the chief pilot was wrong to take into account the issue of recent flying experience and the circumstances that were before him and decides that there was a valid standing bid and decides that Captain Croal did indeed meet the criteria, we don't think it necessarily therefore becomes the situation, albeit we're now trying to recreate what has happened, that Captain Croal is automatically sent to training on the AW139 and that he automatically by virtue of - assuming he passes that course, I think the proposition is he's automatically appointed to Wollongong. We have led evidence that said:
PN863
Hang on, if you do have a valid standing bid we have issues that need to be resolved. We recognise your valid standing bid and we recognise the solution would need to be an outcome that dealt with that, in this case, your desire to move to Wollongong and your desire to be trained on the AW139, but we've got some issues as well that need to be taken into account.
PN864
We haven't dealt with that, and our view is that if there is a valid standing bid, and given that the commission is obliged to in making a decision ensure that decision is compliant with the terms of the agreement, our submissions are respectfully that clause 24.2.9 cannot be ignored. There's nothing in here that says, "That's rendered neutral," in any circumstance. We've already led evidence and it hasn’t been challenged that there are circumstances here at play where CHC needs to be heard. Without going into that in too much detail, perhaps these issues might be ventilated a little more fully when the issue of conciliation is discussed, but I raise that because it seems to me that the order being sought usurps clause 24.2.9.
PN865
In the circumstances and the evidence I put up before you, we don't think that would be proper or a correct application. We think something more along the lines of, "Well, yes, you do have a valid standing bit, but I need to take into account, or I need to create a process where your needs and the company's needs are now mutually met." Do we have a disagreement about that? Well, then maybe we need to deal with it, unfortunately, but if we do have agreement about that, hooray, we all hold hands and go skipping off into the sunset and maybe David eventually go skipping to Wollongong. It seems to me that's an important factor here, at least in our construction and interpretation of the terms of the agreement.
PN866
THE DEPUTY PRESIDENT: Yes, and of course in your submissions you've pointed out a decision of the commission in exercising jurisdiction pursuant to section 739, that the Act can't be inconsistent with the terms - - -
PN867
MR BAKEWELL: Indeed.
PN868
THE DEPUTY PRESIDENT: - - - of the agreement. Do you mind if I just take you back a moment to the question of meeting the criteria, because as I understand the evidence and your submissions of the criteria in this case that the chief pilot decided was the question of insufficient flying experience. I presume there wasn't otherwise it would have been led in evidence, but was there any document attached to the description of the vacancy that set down the criteria for - - -
PN869
MR BAKEWELL: No.
PN870
THE DEPUTY PRESIDENT: In your submission, the criteria is what the chief pilot says the criteria is at the time of the - - -
PN871
MR BAKEWELL: Yes, but having said that, I think I qualified my statement to say, "We accept they must be objective, valid and appropriate objectives."
PN872
THE DEPUTY PRESIDENT: And perhaps our - - -
PN873
MR BAKEWELL: You can't just say, "Because Captain Croal doesn’t support Port Adelaide he is therefore disqualified from the criteria."
PN874
MR STEPHENS: He ought to be.
PN875
THE DEPUTY PRESIDENT: Perhaps I could add (indistinct) reasonable, so - - -
PN876
MR BAKEWELL: Yes, indeed.
PN877
THE DEPUTY PRESIDENT: As I'm sitting here, I'm adding in my mind the word "reasonable" before "criteria", so "reasonable criteria".
PN878
MR BAKEWELL: Yes, and we would accept that premise.
PN879
THE DEPUTY PRESIDENT: Otherwise, of course, the existence of that term in the agreement could simply allow the clause to never be applied - - -
PN880
MR BAKEWELL: Indeed.
PN881
THE DEPUTY PRESIDENT: - - - because the company could decide criteria that was always adverse to those who had standing bids in.
PN882
MR BAKEWELL: And if one were to constructively look at what we have before us by way of improvement, we would all probably agree that it would serve the parties well in the next agreement to define what the term "criteria" means, would probably avoid these types of disputes in the future.
PN883
THE DEPUTY PRESIDENT: Yes.
PN884
MR BAKEWELL: However, we have what we have.
PN885
THE DEPUTY PRESIDENT: That's right. I'm sorry to interrupt your flow.
PN886
MR BAKEWELL: That's okay. The other matter I wished to raise was, I think, Mr Stephens took you to the agreement and took you to clause 34.7, and I think the affect of his submission was that, "Well, if you made an order and the effect of that order was effectively at the end of the day for Captain Croal to be appointed to Wollongong, the agreement provides for surplus pilots and that would be okay." Yes, it is true that clause 34.7.3 recognises that on work practice 6 there are floater pilots, and that floater pilots will be used to cover leave, sims and other absences on the roster.
PN887
As it stands, that floater pilot is allocated and is in situ, so the affect of what we have at the moment would be unless another vacancy occurred, but assuming for the present circumstances, would be an additional pilot on top of the floater pilot that is currently fulfilling the requirements of clause 34.7.3. In our submission, not only would it lead to the types of situation that I think Captain Frankel reflected upon in his evidence, but obviously from a commercial point of view, if we're talking about the needs of the company, you're not going to employ a pilot on a salary and conditions of $200,000 in addition to what you require on a contract that is made and costed for five persons, you just simply wouldn't do it.
PN888
THE DEPUTY PRESIDENT: Yes, and what was said too was that the contract was coming up for renewal, and whilst there was no expression of doubt about whether or not, or certainly no indication, that it was unlikely to be renewed, obviously all parties need to be cognisant of the sustainability commercially of the price that the company would need to charge the client, and the client's reaction to that as opposed to the other competitors.
PN889
MR BAKEWELL: Indeed. I think that broadly covers the matters I wish to draw to your attention. Naturally, we rest upon the submissions that we have made, but the crux of our argument I think is as I have presented and as you have questioned me on. They are our submissions, unless you have any further questions for me.
PN890
THE DEPUTY PRESIDENT: No, I don't for you, Mr Bakewell, thank you. Mr Stephens, do you have some matters in reply?
PN891
MR STEPHENS: Yes, very briefly, your Honour. Mr Bakewell started off making reference that this dispute is about Captain Croal. To the extent that Mr Croal is before, that is true, however, the question that you're asked to determine is: was the agreement complied with? The answer is no, if, for no other reason, Mr Sincich indisputably holds a valid standing bid. All that flows from that failure to comply with the agreement is relevant because what they say, as Mr Bakewell characterised as his argument, what they say is that they acted in the way that they did because there was no valid bid.
PN892
They were so fundamentally wrong on that score it's not funny, and the consequence of it is everything I referred to earlier. You asked the question, I think, and I hope I was listening sufficiently and intently, is: is there are a criteria? What's the word shall I use? Is there an objective criteria on which the company can make an assessment as to whether or not a person has a valid bid. Mr Bakewell, again, I trust I'm listening sufficiently and intently, said, "No." The answer is not, "No," the answer is, "Yes, there is," and it's documented. I might take you to paragraph 38 of Mr Howe's evidence, and paragraph 38 says:
PN893
A review of Croal's aviation experience indicates that he meets the minimum requirements for the contract in respect of qualifications and flying hours, but he does not meet the 500 hour requirement on the contract aircraft type.
PN894
Then he has PH3, his attachments at PH3, and PH3, your Honour, specify the criteria. That is the criteria laid down by the client, that is the criteria that he negotiated in the Ambulance Service of New South Wales contract between CHC and Ambulance Service of New South Wales that CHC is obliged to give effect to.
PN895
THE DEPUTY PRESIDENT: Just take me to that document, the PH document.
PN896
MR STEPHENS: It's PH3, the attachment to Mr Howe's statement.
PN897
THE DEPUTY PRESIDENT: I unfortunately have those two things separated. You say even though the term "criteria", or the word "criteria", is not used that all the words underneath the heading Two Pilots are in fact the criteria that is referred to in the agreement?
PN898
MR STEPHENS: I would very respectfully suggest it could only be that, your Honour. If "criteria" doesn’t refer to qualifications and experience, I'm not sure what it is. We submit at any rate, and this is a closing submission, that there is criteria, they are documented, and criteria in a situation such as this in a multi billion dollar industry, you can't possibly have a scenario where the criteria for fulfilling the terms of a contract between a company and a client is so loose that it doesn’t have the criteria on which it defines the skills and experience requirements of the pilots who are going to fly on those contracts.
PN899
I might also add, your Honour, that nowhere in evidence is there anything other than PH3, nowhere. I think I invites Mr Howe to say, "Is that documented?" There is no documentation and no evidence of empirical data, of objective data that reveals anything other than the criteria specified in PH3.
PN900
THE DEPUTY PRESIDENT: If you don't mind, I realise you're in reply, but I'll ask the question, it's central, really, to the contention that the gate effectively closed, you know, at that point and so that the other processes were not invoked. In terms of what you say the evidence reveals, we go through to 211 Qualifications and Experience, that's just a heading, 211, "The nature of rescue and emergency aero medical service operations is such that mature crew are required." What do you say about that in respect to Mr Croal?
PN901
MR STEPHENS: I'm sorry, where are you, your Honour?
PN902
THE DEPUTY PRESIDENT: I beg your pardon. I was looking at PH3, because your submission is that contrary to the submission of the respondent that criteria is what the chief pilot sets and Mr Bakewell agreed that it had to be reasonable, that in fact the criteria are actually what is written in the contract between the client and the company, and you took me to PH3 and there's a heading there Pilots and a whole series of what sometimes might be called in another world "mandatory" and others "desirable". "The nature of rescue and emergency aero medical service operations are such that mature crew are required," if we considered mature crew to be required, what would you say about - - -
PN903
MR STEPHENS: A mature crew?
PN904
THE DEPUTY PRESIDENT: Yes.
PN905
MR STEPHENS: I would say that in relation to Mr Croal, as the evidence revealed uncontrovertibly, that he's got 29 years' experience as a pilot, he has over 20 years experience with this particular company. I would say that the word "mature" in this situation commentates a level of responsibility, reliability and so on.
PN906
THE DEPUTY PRESIDENT: Okay.
PN907
MR STEPHENS: To put it another way, not irresponsible and so on. I'm very confident there is no evidence put or any inference drawn by the respondent that Mr Croal is not a mature person nor capable of being a mature crew member.
PN908
THE DEPUTY PRESIDENT: And then there's rather a broad statement "holding appropriate qualifications and experience in the environment". If we just regard that as something of a heading, and then there's these "minimum desirable qualifications as PIC". What does "PIC" stand for?
PN909
MR STEPHENS: Pilot in charge.
PN910
THE DEPUTY PRESIDENT: Pilot in charge. Is that, therefore, referring to the kind of pilot that Mr Croal would have been, or is that a different kind of pilot?
PN911
MR STEPHENS: Just so I make sure I'm on the right page with you, you're talking about 2.1.47, I think.
PN912
THE DEPUTY PRESIDENT: No, I was actually right at the top of 2.1.2, "minimum desirable qualifications as PIC".
PN913
MR STEPHENS: As PIC.
PN914
THE DEPUTY PRESIDENT: So that may not refer to a pilot who is the kind of pilot that Mr Croal is.
PN915
MR STEPHENS: It may not, but I can say that Mr Croal has 843 hours of that experience.
PN916
THE DEPUTY PRESIDENT: Then there's just this whole series of Roman points (i) through (vi). To some extent, I have heard in evidence some things mentioned, such as hoisting equipment, but not necessarily the other things, and then there's a provision in 2.1.3 which goes to expectations but acceptance that there may be occasions when the requirement is not met. Then it would seem that 2.1.4 is quite definitive, so this is where you've got minimums said for operations by both day and night, although, you tell me that EMS doesn’t fly at night. Perhaps I have that wrong, or doesn’t do night over water. It must be logged in the pilot's personal flying log book. If anything looks like a set of firm criteria, then the items under that heading do. Do you say that they are the criteria, and what do you say Mr Croal's situation is in comparison to those?
PN917
MR STEPHENS: We say the totality is the criteria. 2.1.2 requires certain qualifications, ATPL commanders rating and so on, and I think you've heard enough about that today.
PN918
THE DEPUTY PRESIDENT: And they're only desirable.
PN919
MR STEPHENS: And then we go to 2.1.4, and we have, as you rightly pointed out, are quite specific, and the evidence of Mr Croal which is uncontroverted is that he satisfies each of those.
PN920
THE DEPUTY PRESIDENT: Yes, okay.
PN921
MR STEPHENS: The only elements that Mr Croal does not satisfy is NVG, but nor did any of the other pilots.
PN922
THE DEPUTY PRESIDENT: Where is the NVG?
PN923
MR STEPHENS: NVG and the 500 hours on type.
PN924
THE DEPUTY PRESIDENT: Where is that appearing here?
PN925
MR STEPHENS: My apologies.
PN926
THE DEPUTY PRESIDENT: It's not here at all.
PN927
MR STEPHENS: That's a correct observation, I was somewhere else. The only qualification that Mr Croal doesn’t satisfy is the 500 hours on type on the 139, but, as I said before, nor does any other of the pilots.
PN928
THE DEPUTY PRESIDENT: Yes, and that's not here either.
PN929
MR STEPHENS: 500 hours on type is 2.1.4(b) or (v).
PN930
THE DEPUTY PRESIDENT: Aircraft type, I see. Each one, except for (v). Yes, I understand.
PN931
MR STEPHENS: As I say, nor does anybody else.
PN932
THE DEPUTY PRESIDENT: There is no weighting here, but the evidence suggests that it is important to be able to fly that type of aircraft, and there is a difference when you move from one to the other. It's not seamless, "I can jump in one and then jump in another," I think - - -
PN933
MR STEPHENS: No, I think - - -
PN934
THE DEPUTY PRESIDENT: - - - there's some training required.
PN935
MR STEPHENS: Yes, it was either Mr Dixon or Mr Frankel who gave good evidence to the effect that there are systems differences, but converting, if I could use that word, for a pilot from one aircraft type to another aircraft, you know, I don't wish to belittle it, but it is something within their capacity, it's something that happens on a very, very regular basis. It's not unusual, for example, whether of their own initiative or whether as an obligation or as a result of imposition from their client require a different aircraft type, and then all of a sudden the pilots are required to undergo training on this new aircraft type.
PN936
It's not an infrequent event, and indeed in order for pilots to progress through their career you could imagine in the early years of their careers they would be flying small single engine type aircraft and so on, they would progressively build their endorsements and their license onto bigger multi engine aircraft as well. It is what a pilot does.
PN937
THE DEPUTY PRESIDENT: What the chief pilot then concluded was that as a pre-condition to being able to successfully do that the flying hours in Captain Croal's regular aircraft needed to be brought up, and that's where the six months - - -
PN938
MR STEPHENS: And I might add, that was a subjective view.
PN939
THE DEPUTY PRESIDENT: Absolutely. A subjective view of an expert.
PN940
MR STEPHENS: A subjective view based on no empirical knowledge of Mr Croal's circumstances. Let's not forget that Mr Howe understated in his own evidence the amount of flying that Mr Croal had done in the last couple of years. Not bucket loads, I'm not suggesting that, but he understated, so his level of knowledge of Mr Croal's flying was wrong, and he based his opinion of Mr Croal's ability to slip back into the cockpit and do what pilots do was based on a false premise, it was based on false data. He didn't even have the advantage of discussing Mr Croal's circumstances with him directly, and that we say is a fundamental flaw. Particularly, as we said before, they were in active engagement in October and November last year about the 139 specifically.
PN941
THE DEPUTY PRESIDENT: Do you mind if I just let Mr Bakewell comment on this exchange, because I know it's somewhat unorthodox, but I would be foolish to leave the bench and be in splendid isolation and wishing that I had asked the question. I've asked it, you've answered it, we've gone back to a piece of the evidence. Mr Bakewell, some comments, and then obviously I'll still let you continue and finish, but, Mr Bakewell, your comments on that exchange.
PN942
MR BAKEWELL: On that exchange, perhaps there's two matters that I wish to raise. The first is in terms of the data relied upon by Chief Pilot Howe, to the extent there was a discrepancy, it was a very, very minor discrepancy and took nothing away from the broad feature of the lack of recent flying experience, it was very narrow. The second thing is, if I could draw your attention to PH3 because there was an exchange about that document - - -
PN943
THE DEPUTY PRESIDENT: Yes, that's very important.
PN944
MR BAKEWELL: - - - this being a document, that is, a document that CHC contract with Air Ambulance New South Wales about, 2.1.3 talks about occasions where a particular requirement is not met by a person proposed by the contractor. The issue here, and I'm drawing your attention to those words "proposed by the contractor", a person put forward to Air Ambulance New South Wales is a person in the first instance approved by the chief pilot, so before you even get to this stage of client contractual fulfillment or an exception being sought because of some other circumstances, the person has to be proposed by CHC, and we work, as I said before, in a regulatory environment where the chief pilot must be satisfied above all things, be satisfied about safety, and he wasn't satisfied that he could even put Captain Croal forward because of the issue of recent flying experience.
PN945
Like I said before, that issue comes down to what is reasonable, what is objective, but the starting point for that is a person who CHC put forward to the client. The effect of Chief Pilot Howe's evidence was that he wouldn't even consider putting Captain Croal forward in the circumstances that he had. I just wished to point that out.
PN946
THE DEPUTY PRESIDENT: Really, what I've got to reflect upon, should I be required to in conciliation is either not pursued or is pursued unsuccessfully, is whether that was reasonable for him to conclude that the lack of recent flying experience was a major inhibitor to the next stage.
PN947
MR BAKEWELL: That's all I have to add.
PN948
THE DEPUTY PRESIDENT: Okay, thanks. Mr Stephens.
PN949
MR STEPHENS: The commission really has before it an opportunity to form a judgment on objective facts, and the criteria are objectively stated in PH3.
PN950
THE DEPUTY PRESIDENT: Right.
PN951
MR STEPHENS: The commission doesn’t need to go beyond an objective assessment of objective facts.
PN952
Now, in terms of this issue of safety has arisen again and, of course, is going to arise because, you know, nothing along, sort of, little bit of alarmism, that's fine, yes, we understand, we've heard that before, but let's keep it in context, let's keep this in context. We're not asking the commission to put David Croal in the sky, no-one is going to be hurt, no aircraft is going to be damaged, no-one is going to die. We're talking about training at ground skill, we're talking about a simulator. Simulators don't even leave the ground, so there is no - you know, there is no safety risk, necessarily. That was the test that the company could apply to Mr Croal but didn't.
PN953
Just sort of wrapping it up, in terms of Mr Croal, again, he had a valid bid and the company's obligation is specified in the EBA. I can't digress from the obligation of the EBA and if I felt some sort of a need to digress from the EBA, the appropriate thing would be for them to come to the other party who negotiated it, being the AFAP, and say, "Hey, we've got a bit of a problem here, can we talk about this?" They didn't do that. And they didn't do that, and the consequence of not doing that is to the detriment of Mr Croal.
PN954
I'm just going to say: in terms of clause 24.2.9, your Honour, I remind you of the exchange that we had with Mr Howe in relation to paragraph 59 of his witness statement where he said, "If we had a discussion with Mr Croal, this is what would have been resolved based on your experience, capabilities and seniority." As I said, we may all not be here if but for that.
PN955
Now, in relation to section 739 of the Act, all section 739 of the Act does, basically, and relevantly, I think, for Mr Bakewell's purposes, is at 739(5), despite subsection (4), "The commission must not make a decision that is inconsistent with this Act or a Fair Work instrument that applies to the parties." So the Fair Work instrument, of course, is the relevant enterprise agreement.
PN956
THE DEPUTY PRESIDENT: Yes.
PN957
MR STEPHENS: The relevant enterprise agreement provides for a dispute resolution clause. The commission has powers under the enterprise agreement to resolve disputes by arbitration. There is no contest in relation to the jurisdiction of the commission in this matter. This dispute arose out of the implementation of the application. And if indeed we want to really stretch the argument, the interpretation of the agreement in settling a dispute in relation to the interpretation application of the agreement. The commission is effectively at large as to how it settles it but, moreover, if it is restricted to settling it in terms of the agreement itself, this agreement provides for a situation where the complaint is that a person was denied a right under the enterprise agreement. If I was afforded that right under the enterprise agreement, I'm entitled not to be placed in a position that I would otherwise be in if the agreement had been adopted, or applied, I'm sorry. It's not overly different to an estoppel argument, is it? Commissioner, thank you.
PN958
THE DEPUTY PRESIDENT: Thank you for your submissions. Thank you very much.
PN959
MR STEPHENS: My apologies, your Honour, with that - - -
PN960
THE DEPUTY PRESIDENT: That's fine, Mr Stephens, it's late, it's been a long day. Now, I'm going to put you all on the spot here. We had the matter set down for tomorrow at 10 o'clock for Mr Tweedie. We no longer need that time, we vacated that time. Unless anybody has rushed out and decided to get married tomorrow at 10 am, we've got the time available. I would be happy to reconvene again at 10 o'clock for a conciliation, if you think it would be of value, whilst everything is still fresh in our minds and before I've really formulated my thinking, which I think, if you do send me away to do that, is going to require quite some careful analysis of the principles of interpretation and so on, and obviously I would be waiting for the transcript before doing that, so I would be - I mean, clearly I would be reserving my decision, in any event. But are you interested in coming back tomorrow morning at 10 o'clock for a conciliation in respect to this matter?
PN961
MR BAKEWELL: I think as we indicated before, Deputy President, we would be open to that and can actually do it on a without prejudice basis.
PN962
THE DEPUTY PRESIDENT: Of course.
PN963
MR BAKEWELL: I raise only one matter and please don't take this the wrong way, but - - -
PN964
MR STEPHENS: She's about to do it.
PN965
MR BAKEWELL: I make no inference about it other than the fact that having conciliation post hearing the events - - -
PN966
THE DEPUTY PRESIDENT: Yes, very unorthodox.
PN967
MR BAKEWELL: - - - of course, is an unusual thing to do.
PN968
THE DEPUTY PRESIDENT: It is; although, it's not unheard of in unfair dismissals, I can tell you.
PN969
MR BAKEWELL: No. Our attitude to that is, you know, we are happy to have those discussions on a without prejudice basis but, of course, anything that we say, of course, we would not want to be seen to be influencing - - -
PN970
THE DEPUTY PRESIDENT: No.
PN971
MR BAKEWELL: - - - your decision.
PN972
THE DEPUTY PRESIDENT: Yes.
PN973
MR BAKEWELL: The reason I raise it is that if someone is aggrieved by the decision that you make, I would hope it wasn't going to be on the basis that someone believed that you had somehow had been influenced. By that, I simply say that only out of just caution, that is all, but we are, apart from that issue, we are happy to proceed.
PN974
THE DEPUTY PRESIDENT: Yes. Well, one of the things that I might suggest, and I can't guarantee it because most of my colleagues have probably gone home or are not easily contactable, but it wouldn't be beyond the bounds of possibility that I could ascertain another member to conduct that conciliation, which may well actually be safer all around because with the best will in the world and the strongest determination to be of independent mind, it is, as you say, unorthodox, or, in effect, you say, unorthodox, and it is also human to listen and even though the reasons for judgment given may not disclose an influence of matters raised in conciliation, that can occur, so don't assume that I would necessarily be the conciliator. So with that information at hand, Mr Stephens, what's your view?
PN975
MR STEPHENS: Yes, look, Commissioner, we would need to make a phone call and we can do that quickly, and if I may just ask my colleague to make that phone call now, if that's okay.
PN976
THE DEPUTY PRESIDENT: Yes, certainly.
PN977
MR STEPHENS: Look, we need to get some authority in relation to this - - -
PN978
THE DEPUTY PRESIDENT: Sure.
PN979
MR STEPHENS: - - - because there's considerable expense involved.
PN980
THE DEPUTY PRESIDENT: Yes.
PN981
MR STEPHENS: We cancelled our accommodation and pulled our flights forward and those sorts of things, so - - -
PN982
THE DEPUTY PRESIDENT: Okay, all right. Well, the other option is this and it may well be more practical given that, you know, having turned my mind to what you have said, Mr Bakewell, and having thought about it myself as I was sitting here, that it may be that a conciliation on another date when I can get another member, but quite quickly, but then that may not advantage you financially either because then you've got to come back.
PN983
MR STEPHENS: Yes, no, don't get me wrong, what Monica is doing is getting us authority to stay overnight and we put it that way, that's all. I think our view is that we're comfortable for conciliation. Now, I don't know whether it's in this Act because these things just keep growing and growing over the years.
PN984
THE DEPUTY PRESIDENT: Indeed.
PN985
MR STEPHENS: I remember when they were just a wee little thing like that. You know?
PN986
THE DEPUTY PRESIDENT: Me too, and I remember when we used to notify disputes pursuant to section 99. I used to do it all the time.
PN987
MR STEPHENS: Couldn't we talk about them. And it goes to this issue of bias. Ordinarily, what would be said at least in days gone by is that where a member of the commission who was involved in arbitration was also participating in conciliation, undertakings were sought and given in respect to, how do I phrase it, to not bump that matter, put it that way.
PN988
THE DEPUTY PRESIDENT: Yes. Of course, I've already heard it, so - - -
PN989
MR STEPHENS: Yes, that's right, but from our perspective, we are more than comfortable for the commission as constituted to deal with it in conciliation. From our perspective, we would be prepared to give such an undertaking and we would simply - if Mr Bakewell is prepared to give it on behalf of his client, that would suffice for us to proceed even tomorrow.
PN990
THE DEPUTY PRESIDENT: All right. Well, let's see what your higher powers say about it and (indistinct) the union with appropriate delegations in respect to the expenditure of money.
PN991
MR STEPHENS: Yes, I can sort of make certain decisions, but - - -
PN992
MR BAKEWELL: Not inviting a comment.
PN993
THE DEPUTY PRESIDENT: Not inviting, Mr Bakewell, no.
PN994
MR BAKEWELL: Not today anyway.
PN995
MR STEPHENS: Yes, you (indistinct)
PN996
THE DEPUTY PRESIDENT: If that approval - - -
PN997
MR STEPHENS: I know exactly where Mr Bakewell is going.
PN998
THE DEPUTY PRESIDENT: If that approval is given, I will do my level best to obtain another member who will - although you've got very big files, they really only need to read the agreement and the submissions, and that's basically done very quickly, so they would be across the bear facts, and then obviously conciliation isn't about - or at least the best conciliation isn't about the member opining, it's actually about facilitating the parties discussing. I think, you know, the fact that you've got your submissions and your witness evidence out, it's quite a helpful place to be in terms of understanding what the alternative outcomes might be. So then if I couldn't get another member, then I would come and tell you, and then you could make an informed choice based on what I say about it and you've already indicated your view - - -
PN999
MR STEPHENS: I've put our view.
PN1000
THE DEPUTY PRESIDENT: - - - but I would prefer the respondent to reflect upon it and, you know, there would be some things that I think with some ground rules that we might discuss that might - - -
PN1001
MR STEPHENS: I'm happy to take it outside and have a discussion.
PN1002
THE DEPUTY PRESIDENT: I'll try very hard to get another member. We do operate as a bit of a team here at the Fair Work Commission in Sydney.
PN1003
MR STEPHENS: If the Sydney practicalities, if we're unable to do so, get another member for tomorrow, would it be your view that you would participate in conciliation or - - -
PN1004
THE DEPUTY PRESIDENT: Well, I would want to discuss that with the parties. I would certainly be available and I would just discuss the concerns of the parties and I think, you know, I've made a few commitments to you about how I would handle it, and it would probably, you know, cause me to be slightly more - I certainly wouldn't be making recommendations or, you know, it would be a lighter touch. I think that, you know, really, I think, upon reflection, the conduct of the earlier conciliation by phone was not ideal to the circumstances. I think face to face would make a difference, particularly in the light of all of the material that's come out. So one way or another, I think it can be fair to say that, you know, there's a probability of a conciliation proceeding.
OFF THE RECORD [5.06PM]
ON THE RECORD [5.08PM]
PN1005
THE DEPUTY PRESIDENT: I've had a conversation with the parties off the record and it's been agreed that we will convene a conference at 10 am in the morning, that I will endeavour to obtain the services of another member of the commission to conduct the conciliation, that if no-one else is available then I will come to the conference and discuss with the parties the basis upon which I could share the conciliation conference without them having any apprehension about undue influence on my decision given the unusual circumstances, the matter having been heard and the decision reserved. The commission is adjourned until 10 am in the morning.
<ADJOURNED UNTIL THURSDAY, 3 JULY 2014 [5.09AM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #AFAP1 OUTLINE OF SUBMISSIONS IN CORRESPONDENCE FROM AFAP DATED 27/5/2014 PN5
DAVID CROAL, CALLED PN28
DAVID CROAL, AFFIRMED PN45
EXAMINATION-IN-CHIEF BY MR STEPHENS PN45
EXHIBIT #AFAP2 WITNESS STATEMENT OF DAVID CROAL DATED 27/5/2014 WITH THREE ATTACHMENTS PN58
CROSS-EXAMINATION BY MR BAKEWELL PN86
RE-EXAMINATION BY MR STEPHENS PN117
FURTHER CROSS-EXAMINATION BY MR BAKEWELL PN145
THE WITNESS WITHDREW PN166
TIMOTHY FRANKEL, CALLED PN174
TIMOTHY FRANKEL, SWORN PN186
EXAMINATION-IN-CHIEF BY MR BAKEWELL PN188
EXHIBIT #CHC1 WITNESS STATEMENT OF TIMOTHY FRANKEL PN192
CROSS-EXAMINATION BY MR STEPHENS PN193
RE-EXAMINATION BY MR BAKEWELL PN274
FURTHER CROSS-EXAMINATION BY MR STEPHENS PN286
RE-EXAMINATION BY MR BAKEWELL PN291
THE WITNESS WITHDREW PN296
ANDREW WILLIAM ALEXANDER DIXON, CALLED PN299
ANDREW WILLIAM ALEXANDER DIXON, SWORN PN302
EXAMINATION-IN-CHIEF BY MR BAKEWELL PN302
EXHIBIT #CHC2 WITNESS STATEMENT OF ANDREW DIXON AND ATTACHMENT PN308
CROSS-EXAMINATION BY MR STEPHENS PN330
THE WITNESS WITHDREW PN388
PETER JULIAN HOWE, CALLED PN397
PETER JULIAN HOWE, SWORN PN398
EXAMINATION-IN-CHIEF BY MR BAKEWELL PN400
EXHIBIT #CHC3 WITNESS STATEMENT OF PETER HOWE PN408
EXHIBIT #CHC4 SUPPLEMENTARY STATEMENT OF PETER HOWE PN408
CROSS-EXAMINATION BY MR STEPHENS PN412
EXHIBIT #AFAP3 DOCUMENT LIST OF QUALIFIED PILOTS PN630
RE-EXAMINATION BY MR BAKEWELL PN782
THE WITNESS WITHDREW PN792
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/FWCTrans/2014/380.html