Adverse action?
38 The conclusion as to the meaning of the definitions of "workplace instrument" and "workplace law" means that it is strictly unnecessary to determine whether the ALAEA has otherwise proved that Sunstate took "adverse action" against the LAME employees.
39 A perception that the case might be determined on a point of law derived from what was the true construction of these definitions moved Sunstate at an earlier stage to seek the separate determination of this point and a related summary dismissal of the proceeding. That was not a course which commended itself to the then docket judge. Particularly where its resolution, one way or the other, will not decide a case, the determination of such a point in isolation from the resolution of a related factual controversy can be fraught with the risk of elongating rather than truncating the final resolution of a matter.
40 Because the question was the subject of full evidence and against the contingency that the conclusion to which I have come in relation to the construction of the statutory definitions may be in error provides one reason why it is desirable, on the assumption that reg 51 and reg 215(9) of the CA Regs can be a source of workplace rights, to make findings in relation to the factual elements of the alleged contraventions. Another reason, perhaps the more important, given the industrial context in which this case arose, is that it may do less than justice to the parties and for their ongoing relationship for them not to have the benefit of findings of fact concerning these allegations.
41 Section 340 of the Fair Work Act is one of a number of what are described in the "guide" (s 334) to Pt 3.1 of Ch 3 of that Act as "general protections". These general protections are intended to protect workers from "adverse action", as defined by s 342. In each instance, there must be a causal relationship between an intended taking of adverse action and the exercise or proposed exercise of a right, protected activity or holding of a particular status or characteristic.
42 The general protections for which Pt 3.1 provides are designated as "civil remedy provisions" by s 539(1) of the Fair Work Act. Proof of the contravention of such a provision attracts a maximum pecuniary penalty of 60 penalty units: s 539(2). A proceeding in respect of an alleged contravention of a civil remedy provision is subject to the rules of evidence and procedure applicable to civil matters: s 551 Fair Work Act. As to the applicable onus and standard of proof in such a proceeding, in Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd (2010) 188 FCR 221 at [13] I observed:
13 Subject to the operation of s 360 and s 361 of the Fair Work Act, the Union carries the burden of proving the alleged contraventions. While the proceedings are civil in character, they are nonetheless penal. Thus, though the Union must prove the contraventions on the balance of probabilities, s 140(2) of the Evidence Act 1995 (Cth) (Evidence Act) requires that; due regard be given to the nature of the cause of action or defence; the nature of the subject matter of the proceeding; and the gravity of the matters alleged. That sub-section of the Evidence Act is a restatement of a well known passage in the judgment of Dixon J (as his Honour then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 in relation to considerations which intrude in deciding whether the standard of proof in civil proceedings has been met, "the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
43 Sections 360 and 361 of the Fair Work Act, referred to in the passage quoted, provide:
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
44 The effect of s 360 is self evident from its terms.
45 As to s 361 of the Fair Work Act, definitive guidance as to its meaning and effect is offered in the recent judgement of the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 86 ALJR 1044 (Bendigo Institute Case) and in observations made by Gibbs J and Mason J (as they each then were) in General Motors-Holden's Pty Ltd v Bowling (1976) 136 CLR 676 (note), 51 ALJR 235 (GMH v Bowling) concerning the effect of an analogue in earlier industrial legislation, which were cited with approval in the Bendigo Institute Case.
46 The particular "general protection" within Pt 3.1 with which the Bendigo Institute Case was concerned was s 346 to an alleged contravention of which the presumption found in s 361 was likewise applicable. The judgements delivered in the Bendigo Institute Case confirm what a reading of s 361 of the Fair Work Act would otherwise suggest, which is that the section focuses attention on the reason why an employer took the action concerned against the employee: Bendigo Institute Case per French CJ and Crennan J at [42], per Gummow and Hayne JJ at [101] and per Heydon J at [146]. The section does not relieve an applicant of proving the other elements of an alleged contravention of a "general protection" provision. It does though cast on to the respondent employer the onus of proving on the balance of probabilities that the reason for the alleged conduct was not that specified in, materially, s 340 as further particularised by the applicant.
47 In expanding on the practical effect of s 361 in relation to the defence of an alleged contravention of a "general protection" to which the presumption applied, French CJ and Crennan J stated, at [45]:
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.
[Internal footnote references omitted]
48 Earlier, in GMH v Bowling (1976) 51 ALJR at 241, Mason J, with whom Stephen and Jacobs JJ agreed, made the following observations in relation to the analogous presumption found in the then s 5(4) of the Conciliation and Arbitration Act:
Section 5(4) imposed the onus on the [employer] of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the [employee], in order to succeed, was not bound to adduce evidence that the [employer] was actuated by that reason, a matter peculiarly within the knowledge of the [employer]. The [employee] was entitled to succeed if the evidence was consistent with the hypothesis that the [employer] was so actuated and that hypothesis was not displaced by the [employer]. To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the [employer] the onus of proving that which lies peculiarly within his own knowledge.
49 In that same case, Gibbs J had stated, (1976) 51 ALJR at 239:
The onus of proving that the fact that the employee held the position was not a substantial and operative factor in the dismissal is to be discharged according to the balance of probabilities and is not to be made heavier by any presumption that if an employee who is dismissed for disruptive activities happens to be a shop steward the latter circumstance must have had something to do with his dismissal. If in the present case evidence had been given by the directors responsible that the employee was dismissed because he was guilty of misconduct or because his work was unsatisfactory, and that in dismissing him they were not influenced by the fact that he was a shop steward or indeed that he was dismissed in spite of that fact, and that evidence had been accepted, the onus would have been discharged.
[Emphasis added by Gummow and Hayne JJ in the Bendigo Institute Case at [88].]
50 In this case, the persons within Sunstate and its parent concerned with the action taken by Sunstate against the LAME employees gave direct evidence as to why that action was taken. In particular, the ultimate decision-maker in respect of Sunstate and the LAME employees, Mr Paul Lidbury, in October 2010 the Head of Operations and now the Head of Maintenance for QantasLink, gave evidence. That body of evidence falls to be considered with the other evidence in the case in determining whether Sunstate has discharged, on the balance of probabilities, the onus of proving that it did not take action against those employees because they had exercised or proposed to exercise a workplace right.
51 The factual resolution of this case requires an understanding of the industrial context in which the events of the evening of 19 October 2010 occurred, of the regime applicable under the CAA for the reporting of defects in aircraft and of what was known within Sunstate and its parent before that evening of a vulnerability in the efficacy of the then cockpit door lock for the Dash 8 aircraft.
52 As to the industrial context, the following emerges from the evidence of Ms Lisa Thomas (Industrial Relations Manager for QantasLink), Mr David Delahay (Manager, Line Maintenance for QantasLink and a qualified aircraft maintenance engineer in his own right) and Mr James Allan ("Head of People", a senior human resource management position, for QantasLink) whose evidence on this subject I unreservedly accept. The parenthetical references as to positions held by these persons are to the positions which they held as at October 2010.
53 As at October 2010 the employment of each of the LAME employees was governed by an employment contract which was subject to the operation of the Licensed Aircraft Engineers Sunstate Airlines Enterprise Agreement 2006-2009 (the enterprise agreement). According to its terms, the enterprise agreement expired on 30 June 2009. It had, however, continued in operation after that date because of the absence of a replacement agreement.
54 During 2009 and up to and including October 2010 the ALAEA and Sunstate had been in negotiations in relation to a replacement agreement for the enterprise agreement. Those negotiations had at times been accompanied by industrial action undertaken by the ALAEA and its members.
55 In February 2010 a proposed replacement agreement was put to a vote by Sunstate employees. It was not approved. Further negotiations between Sunstate and the ALAEA then resulted. On 17 May 2010 the industrial commission approved an application by the ALAEA for a protected industrial action ballot order. In the ballot which subsequently followed the LAME employees were amongst those balloted. The result of this ballot was declared on 4 June 2010. A majority of those balloted (18 out of 26 licensed aircraft maintenance engineers) approved the taking of protected industrial action.
56 After the ballot result had been declared, Sunstate received from the ALAEA on or about 9 June 2010 a notice notifying it that employees (namely its licensed aircraft maintenance engineers) proposed to take industrial action in support of their claims in respect of a replacement agreement. On 15 June 2010 Sunstate made application to the industrial commission for an order that the employees stop unprotected industrial action on the basis that the notice concerned had failed to specify the nature of the industrial action and was therefore defective.
57 On or about 22 June 2010 Sunstate received a further notice of proposed industrial action from the ALAEA. Thereafter, on various occasions between 23 June and 18 August 2010, employees engaged in work stoppages and in bans on overtime, travel away from home for work related purposes higher duties and secondments. It is common ground that these actions each constituted protection industrial action.
58 Industrial action in the form of "go slow" action continued to be taken after 18 August 2010 by various licensed aircraft maintenance engineers who were employed by Sunstate and who were members of the ALAEA. As observed by Mr Delahay, this entailed an increase in man hours in performing maintenance and repairs on aircraft, regular refusal to perform reasonable overtime on request, maintenance engineer unavailability at aircraft receipt and dispatch times, failure to report unserviced aircraft and a refusal to undertake the role of Leading Hand on an acting basis. Mr Fuller, one of the LAME employees, confirmed in his evidence the existence of an ongoing overtime ban by the licensed aircraft maintenance engineers at the Brisbane Airport maintenance facility.
59 Mr Delahay was well placed to make these observations by virtue of his position and experience. He has been a qualified aircraft maintenance engineer for some 34 years. He was in 2010 and had been for some 22 years the Manager, Line Maintenance for QantasLink. He was based in Brisbane. His duties included overall control of all line maintenance carried out for both Sunstate and Eastern Australia Airlines under each company's Maintenance Certificate of Approval issued under reg 30 of the CA Regs. He was, inferentially, well familiar with the workplace at the Brisbane Airport where the notices were displayed and, by virtue of his supervisory capacity, with the work and work practices of the licensed aircraft maintenance engineers employed there. He was likewise well familiar with the maintenance requirements and procedures in respect of the Dash 8 aircraft. I have no hesitation in accepting Mr Delahay's evidence of various "go slow" practices which he observed.
60 Mr Delahay reported directly to Mr Lidbury, who was based in Sydney.
61 These actions moved Sunstate to apply to the industrial commission on 6 October 2010 for an order that the ALAEA and its members stop unprotected industrial action occurring.
62 That application was heard by the industrial commission on 7 October 2010. With the consent of Sunstate, that application was adjourned by the industrial commission on the basis of an undertaking, given on behalf of itself and its members by the ALAEA, not to engage in or threaten to engage in unprotected industrial action and to perform work as normal as directed by Sunstate. The ALAEA was required to notify its members employed at Sunstate's Brisbane Airport maintenance facility of the undertaking. Mr Delahay received by email from Mr Steve Purvinas of the ALAEA a copy of this notice on 8 October 2010 at about 08:18. That same day Mr Delahay:
(a) placed a copy of the terms of the undertaking given by the ALAEA on the notice boards in the workshop and hanger at Sunstate's Brisbane Airport maintenance facility; and
(b) met at that facility with various Sunstate licensed maintenance engineers and informed them in words to this effect, " … your union has given an undertaking. This means that you should work like you did before you were angry at us [Sunstate]".
63 Mr Delahay stated (and I find) that the notice boards where he placed the notices were easily seen and accessed by the employed licensed aircraft maintenance engineers. The boards were located in places where such employees have lunch.
64 Mr Lidbury gave evidence, which I accept, that, though he did not have direct involvement in them, he was, by virtue of his then position as Head of Operations, kept up to date by the QantasLink negotiating team with the progress of enterprise bargaining negotiations occurring in respect of a replacement agreement for Sunstate and also in respect of like negotiations which were occurring in relation to Eastern Australia Airlines. Given the direct line reporting role as between him and Mr Delahay, it is also inherently likely that Mr Lidbury was similarly kept up to date by him as to events on the ground at the maintenance facility at Brisbane Airport.
65 On the basis of Mr Delahay's evidence, I find that, even after the ALAEA had given the undertaking to the industrial commission, licensed aircraft maintenance engineers at the Brisbane maintenance facility continued to engage in various "go slow" practices. They also conducted aircraft "ramp" checks beyond the usual requirements for such checks. Mr Delahay reported these practices to, amongst others, Ms Thomas. On 19 October 2010 and on the basis of these practices, Sunstate requested the industrial commission again to list its application against the ALAEA and its members for an order that they stop unprotected industrial action. That re-listing was fixed to occur on 20 October 2010. Having regard to the submissions made to the industrial commission (Commissioner Simpson) on 20 October 2010 by Mr Purvinas on behalf of the ALAEA, the union received notice of the re-listing on the afternoon of 19 October 2010.
66 I make this finding even though there is some evidence to the contrary from some of the LAME employees as to "go slow" practices during the period following the giving of the undertaking to the industrial commission.
67 Of the LAME employees, Mr Pengelly admitted in evidence that he was aware that the enterprise agreement was due for renewal. Messrs Kuhanez and Posavac each acknowledged that they were aware of the expiry of that agreement. Messrs Kuhanez, Baldcock, Posavac and Fuller were each aware that the ALEA had given notice to Sunstate that protected industrial action was to be taken. Mr Posavac disclaimed any awareness that non-protected industrial action was taken after the undertaking was given. He considered that thorough maintenance practices were being undertaken. Mr Pengelly gave similar evidence in this regard, describing a 3 day maintenance period for a Dash 8 aircraft as not unusual.
68 As against such evidence and as will be seen was the effective, temporary grounding of the Dash 8 aircraft at Brisbane over the course of the late evening of 19 October 2010 and into the early hours of the morning of 20 October 2010. This occurred a time when, given the overtime bans then in place it was likely to cause maximum disruption to Sunstate's passenger transport operations. In terms of the detail and explanations offered, the responses of the LAME employees concerning the events of that evening in the investigation which followed shortly thereafter stand in marked contrast to the affidavits which each gave many months after the event.
69 My overall assessment of the LAME employees' evidence was that each such employee was inclined to diminish, if not fail candidly to acknowledge the extent of practices being employed by them so as to exert pressure on Sunstate in relation to the resolution in their favour of a replacement enterprise agreement. It was not a coincidence that the temporary grounding occurred immediately after Sunstate had given notice of the renewal of its application to the industrial commission and just prior to when that matter was again to be heard. Rather, that temporary grounding was just one more chapter in a saga of industrial action, some protected, some not, which accompanied the negotiations directed to the making of a replacement agreement.
70 For these reasons, I accept Mr Delahay's account of the events leading up to the evening of 19/20 October 2010. Before turning to the events of that evening, it is desirable to canvas the evidence concerning and to make findings in respect of what was known of any vulnerability of the cockpit door lock in the Dash 8 aircraft prior to that evening and what, if anything, was already then in train about the rectification of any such vulnerability.
71 Of all of the persons who gave evidence before me, Mr Lidbury was, by virtue of his then position, the best placed to give evidence on these subjects, so far as Sunstate's corporate knowledge was concerned. His was a senior, strategic management position which gave him a whole of fleet knowledge. Mr Lidbury was also not only a manager but also well qualified and experienced in relation to aircraft maintenance. He completed a four year apprenticeship in aircraft maintenance with Qantas in 1978. In 1985 he completed the degree of Bachelor of Engineering (Industrial/Mechanical) at the University of Technology, Sydney. Ever since 1978, he had been employed in a variety of operational roles with either Qantas or Air Pacific. As the then Head of Operations for QantasLink, Mr Lidbury was the accountable person for the Air Operator Certificates issued by the Civil Aviation Safety Authority (CASA) under the CAA both to Sunstate and to Eastern Australian Airlines. In this capacity, Mr Lidbury was accountable for all aspects of each airline's operations, including aircraft technical specification and airworthiness. I found that his evidence on the subjects mentioned and as to his background knowledge and belief was candid and, especially in light of the contemporary documentation in evidence, credible. The following emerges from his evidence.
72 As early as 28 February 2010 a report had appeared in the "Herald Sun" newspaper in which, in the context of a more general article about security at Australian regional airports, it was stated, "And a commonly used regional commuter aircraft - the Dash 8 - has been deemed 'critically vulnerable' because it cannot be locked and has a weak point in its cockpit door."
73 In response to this newspaper report, Mr Lidbury directed the QantasLink Engineering Department, which serviced both Sunstate and Eastern Australian Airlines, to investigate the claims in the report by conducting an investigate the claim concerning the Dash 8 by conducting an assessment of the aircraft of that type operating under the QantasLink name. This necessarily included Dash 8 aircraft operated by Sunstate. The result of that engineering investigation was that, if two persons with specialist knowledge of the components of an aircraft worked together, it was at that time possible, in respect of two QantasLink Dash 8 aircraft, to flex a panel adjacent to the cockpit door.
74 Mr Lidbury considered that the results of the investigation validated that the installation of the Dash 8 cockpit doors had been fully approved by the Federal Aviation Administration Authority and the aircraft manufacturer such that the Dash 8 aircraft met all Australian security requirements. He further considered that the issue was not one which was required to be reported either to the Office of Transport security or to CASA. Yet further, though he considered that no modifications were required to be made, he nonetheless accepted a recommendation from the Engineering Department as to an extra precautionary modification which might be made to the two aircraft concerned. It is not necessary to detail the detail the nature of the modifications which were consequentially made to the two aircraft concerned.
75 So far as Mr Lidbury was concerned, there matters rested in relation to the security of Dash 8 cockpit doors until on 2 September 2010 a Sunstate pilot, Captain P Schryver, lodged with Sunstate's Mr Richter (then the Safety Systems Manager) what Mr Lidbury termed a Safety Observation Report (SOR) in respect of a Dash 8 aircraft (Australian aircraft registration number VH-QOE). In Mr Richter's affidavit, this same document (albeit in a different format but with the same substantive content) is termed an Air Safety Incident Report (ASIR). Mr Richter explains in his affidavit that a SOR and an ASIR are "essentially the same thing", the former being one which any employee, including a licensed aircraft maintenance engineer, the latter being one submitted by pilots. The procedures are the same for each and each is actioned in the same way. It is just that the forms are different. For convenience, I shall use the abbreviation "SOR".
76 In the SOR Captain Schryver offered the following observations:
Background to incident ……… Since transferring to the Q400 fleet I had overheard from Engineers and Pilots that if you had lost the key to the flight deck or had broken the key in the door lock, you would be able to gain entry to the flight deck whilst it was locked. I had been told that if you placed light pressure against the toilet door bulkhead next to the flight deck lock, the door will open.
Upon arriving at the aircraft, VH-QOE, in Bundaberg off an overnight I proceeded to the flight deck to conduct my checks. As I was about to open the door using the key, I thought about the advice given and tried to open the door without the key.
By placing minimal pressure against the bulkhead I was able to open the door without the key. In the first instance this took me 3 seconds to accomplish and 1 second once I knew exactly where to apply pressure.
As I saw no defect in the door or bulkhead I decided to operate the aircraft as per scheduled. I briefed my First Officer and Cabin Crew and we agreed to operate but with increased security awareness for the remainder of the duty.
The door is required under Airline Transport Safety Regulation 2005 - 4.6 to be able withstand forcible intrusion by persons attempting to enter the flight deck. This door is clearly not able to withstand the forces legislated.
77 In evidence, Mr Lidbury expressed agreement with the description of the structural phenomenon offered by Captain Schryver in the SOR but not with the opinion that, "The door is clearly not able to withstand the forces legislated." He considered that this opinion was incorrect and that Captain Schryver was not qualified to express that opinion. In contrast, Mr Lidbury was qualified to express an opinion as to the structural integrity and suitability of the cockpit door. This was not just because of his formal qualifications and lengthy experience but also because of a personal involvement he came to have in the response within QantasLink to Captain Schryver's SOR.
78 Before detailing that response and Mr Lidbury's involvement in it, I record that I found Captain Schryver's SOR of assistance for another reason. It is quite plain from its contents as to the "background" that there was, as at 2 September 2010, within the body of QantasLink pilot and "Engineer" (inferentially, licensed aircraft maintenance engineers as well as those with professional engineering qualifications) staff a belief on the part of some other than just Captain Schryver that there was a vulnerability of the kind he described about the cockpit door. Consistently with what Captain Schryver had recorded in his SOR, Mr Lidbury attested to the February report in the Herald Sun having "generated rumours within the Engineering and Maintenance Department of QantasLink about the supposed issue". I found the corroboration in the SOR of Mr Lidbury's statement about earlier knowledge of assistance when assessing his credibility and, in particular, in assessing the credibility of the evidence which he gave as to why he had come to decide that Sunstate should take particular action in respect of the LAME employees. An understanding of the background knowledge and beliefs which Mr Lidbury professed to possess in relation to his decision and an assessment of his credibility in this regard is important having regard to what was said in the Bendigo Institute Case in relation to s 361 of the Fair Work Act. As I have already observed, I found him a credible witness.
79 Whatever knowledge, understanding or belief there was before 2 September 2010 within QantasLink staff (that is those who worked for one or the other of Sunstate or Eastern Australian Airlines or provided services to those entities from elsewhere within the Qantas Group of companies) about a cockpit door vulnerability with the Dash 8 aircraft in the fleet, that knowledge, understanding or belief was not universal. None of the LAME employees admitted to any such knowledge at this stage. Nor did Mr Richter, the Manager Quality, Aircraft Maintenance for QantasLink (employed by Sunstate) at Brisbane Airport or Mr Lee-Horn, the Maintenance Controller for QantasLink (employed by Sunstate) also at Brisbane Airport have any such knowledge before September 2010. It seems inherently likely that, whatever knowledge, understanding or belief there was before then was confined to those who had been involved in the QantasLink response to the Sun Herald report or those who had spoken informally with such persons (or via second or more hand means from such persons).
80 Following Captain Schryver's submission of the SOR, he was interviewed by Mr Richter who, in turn, on 4 September 2010, briefed Mr Lidbury. In the course of that briefing Mr Richter said to Mr Lidbury:
Captain Schryver tested the frame in this way because he had heard talk around the place that it was possible for a person to force their way in to the cockpit by putting pressure on a particular part of the door. Although he confirmed it was possible for the door to distort, he determined that there was no defect within the door or door frame and therefore the aircraft was airworthy and serviceable.
81 Mr Richter also initiated other investigations and related remedial action. He detailed these and the related governing procedural manual directions at some length in his affidavit evidence in chief. It is not necessary to detail these procedures. Suffice it to say, the SOR was promptly actioned by the QantasLink Engineering Department. An occurrence log within the Engineering Department records the consequential raising within that department of a "Serious Defence Report" in which it is noted that the report had been raised in respect of the striker plates for the cockpit door lock of aircraft VH-QOE, "because a portion was cracked and missing, resulting in poor locking performance". The SOR and this consequential report was actioned by the QantasLink Engineering Department on 6 September 2010 by the replacement of the striker plates. The SOR was then "closed off", ie the issue raised was concluded to be satisfactorily addressed for the purposes of all applicable procedures.
82 It should also be recorded that, at all times, there existed an alternative locking mechanism for the cockpit door in respect of the Dash 8 aircraft. It is neither necessary or, in my opinion, desirable to detail in this judgement the nature of that mechanism or how it was actuated.
83 At the same time as Captain Schryver lodged his SOR he raised the same subject as a security issue with Mr S Tregarthen, the Regional Security Manager, based at Brisbane Airport, for Sunstate's parent corporation, Qantas Airways Limited. In that report Captain Schryver recorded by way of background, inter alia, that, confronted with a need overnight at unsecured airports to lock the flight deck to the Dash 8 aircraft and to retain the key and the occurrence of lost or broken keys, "I spoke with an engineer (inferentially again a reference to a licensed aircraft maintenance engineer) about this who mentioned that the … door has a weak bulkhead and if flexed near the lock for the flight deck door, the door will be able to be opened whilst locked and without the key". In his security issue report Captain Schryver then went on to describe his confirmation of this by experience.
84 By 8 October 2010, as is apparent from email correspondence from Mr Tregarthen to Mr Richter, this security issue report had been identified within QantasLink as had already been reported via the SOR. On 9 October 2010 another QantasLink pilot, Captain A Reitano lodged an SOR which raised a like issue in relation to the cockpit door as had Captain Schryver earlier.
85 In his affidavit evidence in chief Mr Lee-Horn offered what I thought was a good summary of the remedial action taken within the QantasLink Dash 8 operators as a sequel to Captain Schryver's SOR and whether or not this entailed any airworthiness issue:
105. During the whole period from early September 2012 until 18 October 2010, all of Sunstate's Dash-8 aircraft that displayed the characteristic relating to the cockpit door referred to in [emails enclosing or reporting the SOR], continued to operate normally while the modification program was progressively planned and undertaken, and no LAME or other QantasLink engineering staff member or contractor entered this issue as an open defect on a QL-3 and no Dash-8 aircraft was grounded as a consequence of the existence of this 'defect'.
106. I recall that about this time, QantasLink management team started having regular conference calls between Line Maintenance and Engineering in response to this issue. These meetings involved Mr Fabian, Mr Leben, Mr Stuart Richter and me. The meets were prompted by Occurrences submitted by Captain Reitano and another pilot, Captain Schryver, who submitted an Occurrence while I was on leave.
107. I cannot recall precisely how many meetings we had or what was said between us, but the meetings were informal and ad-hoc in nature. Their purpose was to assess the Approved Data to check that the cockpit doors and the cockpit door locks met the design criteria.
108. The outcome of the meetings was that the cockpit doors and cockpit door locks, as fitted, were found to be in accordance with the design criteria in the Approved Data. The cockpit doors and cockpit door locks had been installed correctly in accordance with the applicable STC and Approved Data.
109. In my professional experience and opinion, the issues raised in relation to the cockpit doors had no effect on the airworthiness of the aircraft. The ability of the bulkhead or the door to be distorted in this way had no effect whatsoever on the structural strength of the airframe. It is important to note that this Dash-8 aircraft type had been originally designed and was operated without the ballistic cockpit door installed. This type of cockpit door was retro-fitted after the 9/11 crisis purely for security reasons, and the less robust original equipment manufacturer door was removed. Neither the original cockpit door nor the replacement cockpit door have any role to play in the technical, structural or aeronautical aspects of the aircraft.
110. The QantasLink management team determined that the propensity of a cockpit door to be opened by way of distortion of the surround bulkhead was a design flaw which arose from the retrofitting of an STC ballistic door to this aircraft type. The flaw was the ability of the door pillar to be flexed so as to move past the striker plate. The fix was to place a shim behind the striker plate so that the locking bolt had better engagement with the hole in the door pillar. The CAR 35 approved service provider engaged to design the fix was Auto Avia, who eventually generated the EO dated 16 and 17 October 2010.
111. The modifications in accordance with the scheduled maintenance program commenced on or about 16 October 2010 and were to take place progressively until about 20 October 2010.
112. LAMEs were not informed about the scheduled maintenance unless and until they were tasked with the specific implementation of the EO in relation to a particular aircraft. We do not always communicate these issues to the LAMEs at large. I specifically did not do so in this case because I considered it to be a benign modification for a non-airworthiness issue.
86 A number of abbreviations are used by Mr Lee-Horn in this passage, in respect of some of which I set out a more detailed explanation below:
Abbreviation explanation:
QL3 - The designation of a Technical Log form.
EO - Engineering Order.
STC - Supplemental Type Certificate.
LAME - Licensed Aircraft Maintenance Engineer.
87 The Engineering Order (EO) to which Mr Lee-Horn refers in the passage quoted was EO No 201/353/EII dated 16 October 2010 prepared by AutoAvia, a CASA approved designer. This EO specified approved data for the installation of a striker plate modification for the cockpit door of 22 Dash 8 aircraft, which included each of those which came to be the subject of actions by the LAME employees on the evening of 19 October 2010.
88 Provision for what is termed a Technical Log in a form designated "QL3" is made in the Maintenance Control Manual (MCM), Volume 1, Chapter 10 of which details maintenance release requirements. The forms and procedures in this chapter of the MCM have been approved by CASA. They fulfil for QantasLink operators (and hence Sunstate) a requirement flowing from reg 43 of the CA Regs, which provided:
Maintenance releases in respect of Australian aircraft
(1) Maintenance releases in respect of Australian aircraft shall be issued only by authorised persons and only in such manner, and in accordance with such form, as CASA directs or approves.
(2) CASA may give a direction specifying the information to be entered on a maintenance release before its issue.
(3) Where a person appointed as an authorised person for the purposes of this regulation is a body corporate, CASA shall specify in the instrument of appointment the condition that any maintenance release issued by the authorised person is to be signed, on behalf of the authorised person, by a specified person or by a person included in a specified class of persons.
(4) CASA may give a direction with respect to the retention and transfer of maintenance releases and copies of maintenance releases issued under this regulation.
(5) CASA may give a direction specifying the period, or the maximum period, that a maintenance release of a kind specified in the direction is to be expressed to remain in force.
(6) A maintenance release may be issued in respect of an aircraft only if:
(a) there is in force, a certificate of airworthiness for the aircraft; or
(b) CASA has approved the issue of the maintenance release.
(7) A maintenance release may be issued in respect of an aircraft only if:
(a) all maintenance in respect of the aircraft required to be carried out to comply with any requirement or condition imposed under these regulations has been certified, in accordance with regulation 42ZE or 42ZN, to have been completed; or
(b) for a maintenance release for a flight under a permission to fly in force under subregulation 317 (1) - the completion of any maintenance required under a condition of the permit, or under a direction in relation to the permit or permission, has been certified under regulation 42ZE or 42ZN.
(8) For the purposes of paragraph (7) (a), the existence of an earlier maintenance release issued by virtue of that paragraph in respect of an aircraft may, in the absence of evidence to the contrary, be accepted by an authorised person for the purposes of this regulation as proof that all maintenance required under these regulations to be carried out on the aircraft before the date of issue of the earlier maintenance release has been certified to have been completed as required by that paragraph.
(9) A maintenance release may bear an endorsement that the release is issued subject to a condition set out in the endorsement, being a condition imposed for the purpose of ensuring the safety of air navigation.
(10) Where an aircraft has a permissible unserviceability, a maintenance release issued in respect of the aircraft, or other document approved for use as an alternative to the maintenance release for the purposes of this subregulation, shall bear an endorsement:
(a) setting out each permissible unserviceability that exists with respect to the aircraft;
(b) setting out such of the conditions (if any) with respect to the use of an aircraft with those permissible unserviceabilities set out in any direction given under regulation 37 in relation to those permissible unserviceabilities as are not set out in any operations manual issued with respect to the aircraft or in Part 20 of the Civil Aviation Orders; and
(c) stating that the maintenance release is issued subject to those conditions, whether set out in the maintenance release or the other document or otherwise.
(11) A person shall not issue a maintenance release in contravention of this regulation.
Penalty:
(a) for a contravention of subregulation (1) - 25 penalty units; or
(b) for a contravention of subregulation (6) - 25 penalty units; or
(c) for a contravention of subregulation (7) - 50 penalty units; or
(d) for a contravention of subregulation (10) - 10 penalty units.
(11A) A person must not contravene:
(a) a direction; or
(b) the condition specified in subregulation (3); or
(c) a condition to which a maintenance release is subject.
Penalty:
(a) for a contravention of a direction under subregulation (2) - 10 penalty units; or
(b) for a contravention of the condition specified in subregulation (3) - 10 penalty units; or
(c) for a contravention of a direction under subregulation (4) or (5) - 5 penalty units; or
(d) for a contravention of a condition under subregulation (9) - 50 penalty units.
(12) Subregulation (11) does not apply in relation to a person by reason only that he or she has issued a maintenance release in contravention of a direction given under this regulation unless the direction has been served on the person.
(13) A person shall not sign a maintenance release to be issued by virtue of paragraph (7) (a) in respect of an aircraft if:
(a) the person considers that:
(i) the aircraft is in a damaged condition or is defective;
(ii) the damage is major damage or the defect is a major defect, as the case may be; and
(iii) the damage or defect is not a permissible unserviceability;
(b) the person considers that maintenance carried out on the aircraft may have adversely affected, to such an extent as to affect the safety of the aircraft, the flight characteristics of the aircraft or the operating characteristics of any aircraft component, or of any system of aircraft components, installed in the aircraft;
(c) the person is aware that certain maintenance that has been carried out on the aircraft has not been certified, in accordance with regulation 42ZE or 42ZN, to have been completed; or
(d) the person is aware that:
(i) information entered on the maintenance release is incorrect; or
(ii) the maintenance release does not contain all information that it is required by or under these regulations to contain.
(13A) A person must not contravene subregulation (13).
Penalty:
(a) if the person signs the maintenance release in contravention of paragraph (13) (a) or (b) - 50 penalty units; or
(b) if the person signs the maintenance release in contravention of paragraph (13) (c) - 10 penalty units; or
(c) if the person signs the maintenance release in contravention of paragraph (13) (d) - 25 penalty units.
(15) A direction given under this regulation does not have effect in relation to a person until it has been served on the person.
(16) Where a maintenance release is issued under this regulation, or again commences to be in force by virtue of regulation 48, in respect of an aircraft, any other maintenance release in force in respect of the aircraft immediately before that issue or that commencement, as the case may be, ceases to be in force.
(17) An offence against subregulation (11) or (11A) is an offence of strict liability.
Note For strict liability, see section 6.1 of the Criminal Code.
89 As correctly related by Mr Lee-Horn in his affidavit evidence in chief Chapter 10 of Volume 1 of the MCM makes provision for procedures utilising three key forms:
(a) Maintenance Release (QL-1);
(b) Flight Record (QL-2); and
(c) Technical Log (QL-3).
46. The QL-1 is used to certify any aircraft for return to service after a nominated check. This is commonly referred to as a C-check and is usually completed by Heavy Maintenance in Tamworth, a sub-group of Line Maintenance
47. The QL-2 is the flight record sheet and is used to keep a record of the aircraft's flight times, flight sectors to and from, and fuel consumption. It is also contains details of the following:
(a) flight crew;
(b) engine trend monitoring data;
(c) duty times and training records;
(d) Ramp Service Checks; and
(e) oil quantity inspection and recording.
48. The QL-3 is used for the recording and subsequent deferral and/or resolution of defects identified by pilots or LAMEs. The QL-3 is different from the QL-2 because the QL-3 is used exclusively for recording aircraft maintenance and deferred defects/maintenance.
49. Maintenance release documentation is kept on board the aircraft at all times and is considered to be a legal document because of its origin in the MCM, which serves a regulatory function.
90 Mr Lee-Horn is well qualified to express the opinion which he gives in the passages quoted. His opinion is not, of course, admissible, much less definitive as to the meaning of governing CA Regs or material such as the MCM serving ends to which those regulations are directed. It is nonetheless both admissible and valuable in any event in terms of industry practice and even more so QantasLink practice in relation to how practical effect was sought to be given to requirements stemming from the CA Regs and materials such as the MCM. As at 27 June 2011 he had some 41 years experience in aircraft maintenance. Of this period he had been a licensed aircraft maintenance engineer since 1978. As far as the Dash 8 aircraft type is concerned, his licence was restricted to airframes and engines but did not extend to instrumentation, electronics or radios. The result of recent changes to the CA Regs so as to introduce a requirement for a licensed aircraft maintenance engineer to work within a Line Maintenance Department have had the result that, from 27 June 2011, Mr Lee-Horn's licence is no longer current.
91 Mr Lidbury took a direct personal interest in the addressing of the cockpit door issue identified in Captain Schryver's SOR. He did not content himself with briefings. He inspected personally the cockpit door of one Dash 8 aircraft so as to ensure that he fully understood the issue raised. His advice from the QantasLink Engineering Department was that, although the cockpit doors were considered airworthy, it was nonetheless appropriate to develop a modification as an extra precaution and to minimise the risk of the door being forced open by applying pressure to the frame. Mr Lidbury agreed with this assessment and course of action. The Engineering Department then worked with the manufacturer of the Dash 8 aircraft to develop an appropriate modification and related procedure. The modification and related procedure required the approval of CASA. By 9 September 2010 the modification process in relation to the Dash 8 fleet had commenced.
92 For the purposes of the CASA approved, QantasLink MCM, an aircraft is considered "airworthy" if:
(a) the aircraft conforms to the type design;
(b) any modifications to the aircraft have been carried out in accordance with approved maintenance data; and
(c) the aircraft is in a condition for safe operation.
93 On the basis of the MCM and the evidence of Mr Lidbury and, in particular, Mr Lee-Horn, I conclude that the phenomenon identified in Captain Schryver's SOR did not affect the airworthiness of the Dash 8 aircraft. That is because the phenomenon did not have the consequence that the components concerned in the Dash 8 aircraft were not operating in accordance with the Approved Data for that aircraft type, a Supplemental Type Certificate for that aircraft type or the manufacturer's data record. The aircraft retained the capacity safely to take off, fly, land and otherwise to operate in accordance with such requirements.
94 Because the phenomenon identified the airworthiness of the Dash 8 aircraft, there was no consequential requirement flowing from it which required the QantasLink Dash 8 aircraft fleet to be grounded.
95 Mr Lee-Horn offered what I regard as a reliable guide as to the usual practice, having regard to the requirements of the CA Regs and especially the MCM, in relation to the completion of a QL3 by a licensed aircraft maintenance engineer. He set out that practice in elaborate detail in his affidavit evidence in chief. It is not necessary to describe the practice in such detail in these reasons for judgement. Defect identification and classification by a licensed aircraft maintenance engineer and consequential annotation of a QL3 is an integral, important and responsible part of the duties of that trade.
96 The MCM defines a number of different types of defects. Any licensed aircraft maintenance engineer (and the LAME employees were no different) is expected, by virtue of that trade qualification, to have the ability correctly to assess any type of defect encountered in the course of his duties, Of these defects, some are airworthiness defects of one sort or another and others are what are termed Non-Airworthiness Defects (NAD).
97 Provision is made within the MCM for what is known as a QL3 Technical Log Flow Chart. The flow chart sets out a number of steps associated with the assessment, classification and remedying of various types of aircraft defects. Step 2 of that flow chart sets out a requirement to assess a defect for "MEL/CDL/DWL/NAD applicability". The other abbreviations, the nature of which it is not necessary further to describe (details are in Mr Lee-Horn's affidavit) are:
MEL - Minimum Equipment List;
CDL - Configuration Deviation List
DWL - Deferred Within Limits.
98 An "NAD" defect is one not covered by the provisions of the MEL/CDL/DWL as specified in the MCM and assessed as not affecting the airworthiness of an aircraft. If in the course of his duty a licensed aircraft maintenance engineer identifies a defect or an issue that does not go to the airworthiness of an aircraft that tradesman can, as a matter of practice and without contravening a requirement of the MCM do one or more of the following:
(a) enter the defect as a NAD in the QL3;
(b) submit a SOR in respect of the defect or issue so as to instigate an investigation through QantasLink safety systems channels (such as that which occurred when Captain Schryver lodged his SOR);
(c) speak to the Maintenance controller about the defect or issue.
99 All defects entered on a QL3, be they airworthiness or non-airworthiness in nature, must be resolved at some stage. That is so even in respect of a defect assessed as NAD.
100 It is a matter of common knowledge amongst licensed aircraft maintenance engineers, and knowledge which each of the LAME employees possessed, as did Messrs Lidbury, Lee-Horn, Richter and Delahay that the combined operation of the CA Regs and the MCM is that an airworthiness defect noted on a QL3 will have the consequence that the aircraft concerned is thereby regarded as unserviceable and unable lawfully to be flown unless and until that defect is addressed. A defect which has been entered on a QL3 without the making of any entry stating that remedial action in respect of the defect can or should be deferred is termed an "open defect". There is a part of the QL3 on which is recorded any decision as to deferred action in respect of a defect. A QL3 form also contains a part entitled "Resolution". Into this part is entered the remedial action taken either by the licensed aircraft maintenance engineer who raised the QL3 after noting and classifying a defect or another such tradesman. If the "Deferred Action" part of a QL3 is not completed for any reason then the aircraft concerned must be kept out of service unless and until the remedial action has been undertaken and recorded in the "Resolution" part of the QL3 by a licensed aircraft maintenance engineer.
101 Where "deferred action" has been entered on a QL3 in respect of an aircraft, the consequence also is that the defect concerned will be scheduled by the Maintenance Controller for "line maintenance". That means within the QantasLink fleet that the aircraft's defect will be remedied by the Line Maintenance Department at a maintenance base such as those at Brisbane or Cairns Airport, depending on where the aircraft is when the defect is noted on the QL3 and grounded.
102 It is a matter of standard practice in the trade of a licensed maintenance engineer that the duties of such a tradesman include the taking of such steps as are necessary to rectify an aircraft defect in a way that will, as far as practical, keep an aircraft in service.
103 Knowledge of the practices and common trade knowledge of licensed aircraft maintenance engineers becomes important when assessing the actions and intentions of both Mr Lidbury and the LAME employees in relation to the events of the evening of 19 October 2010. In assessing the actions of the LAME employees during October 2010 up to and including that evening it is also necessary to bear in mind that, as each acknowledged in the course of oral evidence, each of them had been working in their trade on Dash 8 series aircraft for many years.
104 At 09:00 on Saturday, 16 October 2010 one of the LAME employees, Mr Pengelly, made a defect entry in a QL3 in respect of a Dash 8 aircraft, registration number VH-QOD in which he recorded, inter alia, "Cockpit door is able to be opened while still in the locked position". An examination of the whole of the QL3 defect description of which this is the key passage makes it clear that the defect described by Mr Pengelly is of the same kind to the cockpit door issue identified in Captain Schryver's SOR. No deferred action was noted on this QL3. This is therefore an example of an "open defect" QL3 as described above. The defect was resolved and the resolution portion of QL3 annotated accordingly on 17 October 2010 at 21:45 by another of the LAME employees, Mr Posavac. Mr Posavac installed the door modification which had been previously approved.
105 The following day, at 23:23 on Monday, 18 October 2010 another of the LAME employees, Mr Kuhanez made a defect entry in another QL3 in respect of that same but newly modified Dash 8 aircraft, registration number VH-QOD. On this occasion, the defect annotated was, "cockpit door found to be unsafe in 'locked' condition". The entry was made 37 minutes prior to the end of Mr Kuhanez' 8 hour shift that day. That shift finished at midnight. There was no other maintenance shift immediately following that shift. Once again, no deferred action was noted on this QL3. This is therefore another example of an "open defect" QL3. The effect of the QL3 being left open was that this Dash 8 aircraft was again deemed unserviceable and unable to be flown until the annotated defect was resolved. That did not occur until 16:45 on 19 October 2010 when another licensed aircraft maintenance engineer, Mr Bowdery (who is not one of the LAME employees) installed an approved replacement lock set. Also on 18 October 2010, at 23:35, Mr Kuhanez lodged an SOR in relation to the same issue noted on the QL3 as a defect. QantasLink commenced an occurrence investigation in respect of this in accordance with SOR procedure on 19 October 2010.
106 On the morning of 19 October 2010 Mr Delahay made Mr Lidbury aware of the two, separate QL3 which had been lodged in respect of aircraft, registration number VH-QOD. Mr Delahay advised Mr Lidbury that the licensed aircraft maintenance engineer who prepared the 18 October 2010 QL3 had used a screwdriver to lever open the locked door latch. That advice does not, of course, prove that this is what occurred but it accords with the substance of the contemporaneous entry made by Mr Kuhanez on the QL3 concerned. That entry is evidence of what occurred. What Mr Lidbury was told is in any event relevant in terms of the information base against which he came to decide to take particular action against the LAME employees. Messrs Delahay and Lidbury were each of the view and agreed with each other that what had been noted in respect of the door latch was a very unusual defect. Mr Lidbury referred the matter to the QantasLink Engineering Department for investigation. At the time, he and Mr Delahay were each of the view that the door latch on aircraft VH-QOD must have been excessively worn. They therefore determined in the course of their discussion on the morning of 19 October 2010 that there was a need for more replacement door latches to be held in the Brisbane Airport maintenance facility in case a similar defect was detected on other Dash 8 aircraft. They also determined that the fitting of a new door lock would be an appropriate remedial action to "close off" the QL3 in question and thus allow aircraft VH-QOD to return to service. Neither Mr Lidbury nor Mr Delahay considered that the reported lock defect constituted an airworthiness issue.
107 As 19 October 2010 drew to a close six further QL3 were prepared in respect of six different QantasLink Dash 8 aircraft then located at Brisbane Airport. The table below summarises the respective aircraft concerned, the name of the licensed aircraft maintenance engineer who raised the QL3 in respect of that aircraft, the time when the QL3 was raised and the nature of the defect entered on that QL3.
Aircraft LAME Time QL3 raised on 19 OCT 10 Nature of defect(s)
[SIC]
VH-SBW Kuhanez 21:00 "Cockpit door found unsafe in locked configuration: x2 methods to open from cabin: 1 - flex toilet door/cockpit door jam (striker plate); 2 screwdriver/key used to lever exposed side bolt to open position."
VH-QOA Fuller 21:01 "Cockpit door when locked can be opened by pulling cabin side handle to the left and inserting a key/object into latch pin to move latch pin to open door - unsafe condition".
VH-SDA Pengelly 21:05 "Cockpit door able to be opened by two method, flex of toilet door wall allows clearance between door bolt and stricker plate; 2nd breach by using a key able to lever door latch bolt back to open door".
VH-QOF Baldock 21:24 "Please investigate cockpit door found unsafe. It is able to be opened when locked by flexing toilet door and with an object by moving the side plate up the handle, without using the door key".
VH-SCE Etherton 23:54 "Cockpit door latch has excessive gap around door open mechanism. Door able to be opened while in locked position - levering door bolt thru gap - flexing of toilet wall"
VH-TQM Posavac 23:55 "Excessive gap in cockpit door latch on external slide handle to surround plate - internal mechanism can be seen & security may be breached by having access to internal slide plate".