Mr Luke Crouch v Airservices Australia - [2022] FWC 2171

[2022] FWC 2171 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739 - Application to deal with a dispute

Mr Luke Crouch
v

Airservices Australia

(C2021/6964)

COMMISSIONER WILSON

MELBOURNE, 22 AUGUST 2022

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]. Jurisdictional objections; whether text of body of agreement inconsistent with schedule; whether clause has application to trainees. Construction of enterprise agreement. Whether procedural fairness afforded. Inferences about persons not giving evidence.

INTRODUCTION

This decision concerns an application made pursuant to s.739 of the Fair Work Act 2009 by Luke Crouch, a trainee air traffic controller employed by Airservices Australia. The application is for the Fair Work Commission to deal with a dispute arising under an enterprise agreement, with the alleged dispute relating to Airservices’ foreshadowed decision to terminate Mr Crouch’s training. The dispute arises under the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2020-2023[1] (the 2020 Agreement).

The application was made in October 2021 and was initially dealt with by me in conciliation. When conciliation did not resolve the matter, it was the subject of a hearing at which Mr Stephen Hardy, solicitor from K & L Gates appeared on behalf of Mr Crouch and Mr Jon Lovell, solicitor from Ashurst appeared on behalf of Airservices. Each lawyer appeared with permission being given by me, being satisfied of the criteria within s.596(2)(a).

Mr Crouch provided gave evidence on his own behalf. Four witnesses gave evidence on Airservices’ behalf: Marcus Knauer, Stephen Clarke, Antoinette Crisara, and Frank Bosnich. Mr Knauer was involved in bargaining for a predecessor to the 2020 Agreement, the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2017-2020[2] (the 2017 Agreement). For a substantial period of the matters in dispute Mr Clarke was Airservices’ Operational Training Head; Ms Crisara was the Acting Trainee Coordinator; and Mr Bosnich was the Acting Air Traffic Control Training Lead.

The dispute surrounds Airservices’ view that Mr Crouch’s training agreement should be terminated and that, in arriving at that decision and because of the terms of Schedule 1 (Ab Initios) of the 2020 Agreement, it does not have to apply the terms of Clause 50 (Performance Conduct, Termination of Employment) to Mr Crouch.

For the reasons detailed below, I find that Airservices did not comply with Clause 50 and that the appropriate action to be taken is for Airservices to recourse Mr Crouch to another training cohort.

BACKGROUND

Luke Crouch was offered employment with Airservices as an air traffic control trainee in September 2019 and began work with the organisation shortly after in November 2019. The work he was to perform was training towards becoming a fully licensed Air Traffic Controller.

Airservices is a government business enterprise and has an Australian monopoly on the provision of air traffic control services within Australia’s airspace. An Air Traffic Controller may only work in Australia for Airservices. The organisation is a Registered Training Organisation and provides both theoretical and practical training to trainees over a period of time. As might be imagined the training is rigorous and a high degree of trainees do not complete their training.[3]

When he started employment with Airservices Mr Crouch had worked in other industries and did not have prior experience in the aviation industry. He recalls being told in the interview and assessment centre processes in August 2019 that “this did not matter and that Airservices would provide all necessary training and support”.[4] When he applied for employment with Airservices he lived in Brisbane and took the position in the knowledge that his training would be conducted in Melbourne.

Mr Crouch signed a contract of employment with Airservices on 22 September 2019. That contract committed him to commence initial training on 11 November 2019. This was expected to be completed in approximately 13 – 15 months, at which time he would be provided with a Diploma of Aviation (Air Traffic Control) and then assigned to field location training which would take approximately four months. Initial Training was stated to be guided by, and subject to, the Registered Training Organisation Operations Manual and the ANS Initial Training Manual. Mr Crouch was placed in a training cohort known as En Route Course Number ATC – 152. Arrangements were made to meet his travel expenses from his home in Queensland to the initial training location at Melbourne Airport.

Training as an Air Traffic Controller requires study for, and completion of, five phases of training, each of different durations, comprising a total of 23 modules.[5]

Phase 1 of Mr Crouch’s training, dealing with theory only, started upon employment in November 2019 and continued until 10 March 2020. His results for the Phase 1 assessments were generally good, with 10 out of 12 exams passed and pass marks ranging between 83% and 100%. The pass mark for all Phase 1 subjects is 70%. During Phase 1 Mr Crouch failed two units on his first attempt with scores of 67.6% and 66%. He subsequently passed the supplementary exams, achieving 70% and 90%.[6] Mr Crouch contends that others in his training cohort “failed at least 1 exam” and had to undertake supplementary exams.[7]

His training then moved into Phase 2 on 11 March 2020, with that phase comprising both theoretical and practical training.

In late June 2020 Mr Crouch became ill and his capacity to work was impacted because of the then applicable COVID – 19 Pandemic protocols. On Sunday, 28 June 2020, having taken a COVID – 19 test, he was instructed to self-isolate until he returned a negative test. That did not take place until 8 July 2020 and he was then not cleared for a return to work until 13 July 2020. Mr Crouch missed two weeks of work during this period.

On 22 July 2020, shortly after returning to work, Mr Crouch was required to sit a theoretical exam. The exam was for a module known as ASA 119 Separation Standards. Mr Crouch failed badly, achieving 45.9%,[8] against the required pass mark of 70%.[9] He later sat a supplementary exam for the module on 14 August 2020, slightly more than 3 weeks after the original exam. While he did appreciably better in the supplementary exam than on his first attempt, achieving 68.7%, the result was not a pass.

Mr Crouch was then immediately placed on “training review” and instructed not to return to work.

The parties contest what occurred between the two exams for the Separation Standards module and whether Mr Crouch was provided with sufficient support by Airservices. They also vigorously contest what should have been done as a result of not passing the supplementary exam, and whether Mr Crouch’s overall progress for the phase indicated proficiency or not.

After placing Mr Crouch on training review in August 2020, in February 2021 Airservices formed the view that Mr Crouch’s training should be terminated and informed him of this recommendation.

When Mr Crouch sought to appeal that review and pointed out that it omitted consideration of an important matter of fact Airservices either undertook a second training review or reissued the original review in a second version (which of the two was done is a matter of dispute). Both such documents upheld the recommendation that Mr Crouch’s training should be terminated, with the second report or version being concluded in April 2021.

On 14 April 2021 Mr Crouch requested a review of the recommendation, by letter to Steven Clarke. Mr Crouch was informed of Mr Clarke's decision to uphold the recommendation on 27 April 2021.[10]

In May 2021 Mr Crouch commenced an academic appeal against that conclusion and raised a dispute under the 2020 Agreement. The academic appeal was rejected in June 2021.

Having been told by the author of the academic appeal that he could have an independent review conducted by Airservices’ Employee Assistance Program (EAP) provider Mr Crouch sought to do so in July 2021, and then learned that the EAP provider did not provide such a service. Airservices instead offered a mediation with it to be conducted by the EAP provider which Mr Crouch attended in October 2021; however, the mediation did not resolve the dispute. Shortly after, on 15 October 2021, Mr Crouch commenced a s.739 dispute application in the Commission.

QUESTIONS FOR DETERMINATION

Mr Crouch characterised the dispute to be resolved by the Commission in the following manner in the closing submissions made on his behalf;

“(a) whether the Respondent, Airservices Australia, has breached Clause 50 (being Clause 50.1, 50.2 and/or 50.3) of the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2020 - 2023, ID Code: AE507712 (Enterprise Agreement)? ; and, if so
(b) whether the Applicant should be recoursed and/or provided with other remedial training in accordance with Clause 50 of the Enterprise Agreement to ensure that provision is complied with by Airservices Australia.”[11]

The Respondent characterises the dispute somewhat more simply with two primary propositions that require resolution but in a way that requires consideration of two threshold questions;

“1. The Applicant has notified a dispute under clause 10 of the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2020 – 2023 (ATC EA) in relation to:
(a) whether Airservices Australia has complied with clause 50 of the ATC EA; and
(b) whether Airservices should re-course the Applicant and/or provide the Applicant with remedial training in accordance with clause 50 of the ATC EA.
2. Airservices submits that the threshold questions for determination by the Commission are:
(a) whether clauses 2 and 4 of Schedule 1 to the ATC EA operate to exclude clause 50 from applying to Applicant;
(b) alternatively, whether clause 50, by its terms, applies to the Applicant's circumstances as an ab initio trainee.” [12]

Disputes may be brought to the Commission in the manner set out in the 2020 Agreement’s Clause 10, which allows the raising and progression of “a dispute about a matter arising under this Agreement or in relation to the National Employment Standards between Airservices and an employee or employees whose employment is subject to this Agreement”. If after conciliation the dispute is unresolved, “the FWC can arbitrate the dispute and make a determination that is binding on the parties, subject to either party exercising a right of appeal against the decision to a Full Bench of the FWC”.

Airservices submit that the dispute is not validly before the Commission, since Clause 50 does not apply to Mr Crouch, or any other Ab Initio trainee, owing to the clause being inconsistent with Clauses 2 and 4 of Schedule 1.[13] Further, if there is no inconsistency between Schedule and Clause 50, the operation of Clause 50 is confined, with its terms not applying to Ab Initio trainees. Clause 50 is directed at assisting the return of an employee to performance at a satisfactory standard, whereas an Ab Initio trainee, being unqualified and inexperienced in the field of air traffic control, does not have performance standards to meet.[14] Even if Clause 50 applies to Mr Crouch’s employment, Airservices has in substance met the requirements of the term in Mr Crouch’s case, with a number of his grievances having marginal, if any, relevance to whether Airservices has met the requirements of Clause 50.[15]

In considering the parties’ respective submissions on the subject of the matters to be determined and noting there is some but not complete consistency of views between the parties about the matter to be arbitrated, I will determine the dispute by answering the questions posed by Mr Crouch, with some minor changes, and in the course of doing so address Airservices’ objections. The two Questions for Determination are;

Has Airservices Australia, complied with Clause 50 of the 2020 Agreement?;
If not, should Mr Crouch be recoursed and/or provided with other remedial training in accordance with Clause 50 of the 2020 Agreement to ensure that provision is complied with by Airservices?[16]

FIRST QUESTION – HAS AIRSERVICES COMPLIED WITH CLAUSE 50?

(a) Whether clauses 2 and 4 of Schedule 1 operate to exclude Clause 50

In considering the first question for determination regard needs first to be given to whether clauses 2 and 4 of Schedule 1 to the 2020 Agreement operate to exclude Clause 50 from applying to Mr Crouch.

The 2020 Agreement commenced operation on 21 April 2020. In contest between the parties are two of its terms; Clause 50 (Performance Conduct, Termination of Employment) and Schedule 1 (Ab Initios). The terms of Clause 50 have been included in the current and at least the previous two enterprise agreements, whereas Schedule 1 has featured only in the 2020 and 2017 agreements. The two clauses are extracted as an Attachment to this decision.

The parties agree Mr Crouch is an Ab Initio employee being employed, as the Macquarie Dictionary would define it, “from the beginning”.

The Full Bench has summarised the task of construction of an enterprise agreement in the following way;

“[38] The construction of provisions of an enterprise agreement begins with a consideration of the ordinary meaning of the words, read in context, taking account of the evident purpose of the provisions or expressions being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement. The statutory framework under which the agreement is made or in which it operates may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in which an agreement is made and operates is also relevant. Thus, the language of an agreement is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. But context is not itself an end and a consideration of the language contained in the text of the agreement being considered remains the starting point and the end point to the task of construction. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach.”[17]

Considerations of a purposive approach may include reading the text under consideration in order “to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading”.[18]

The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties.[19] In that regard;

“12. Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a
common assumption.”[20]

Ambiguity in a provision within an enterprise agreement must be identified before one is to have regard to evidence of the surrounding circumstances; however, in determining whether ambiguity exists, regard may be had to evidence of the surrounding circumstances. That is, such evidence can be used to identify and resolve any ambiguity.[21] If there is no ambiguity in the Agreement, the issue of a common understanding between the parties does not arise.[22]

Considerations of ambiguity were dealt with in some detail by Mason J in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales;

“The true ru1e is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.
It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parol evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification.
Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties' presumed intention in this setting. We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract.”[23]

Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.[24]

The parties’ principal debate is whether Schedule 1 operates in such way as to prevent the application of Clause 52 to Mr Crouch’s employment or whether Schedule 1 operates in in such a way that the provisions of Clause 50 apply to him as well. Airservices argue the terms of Clause 50 are inconsistent with Schedule 1 and especially with the Schedule’s Clause 4 meaning the provisions of Clause 50 have no application to Mr Crouch’s employment. Airservices’ submission is that;

“(c) Schedule 1 was first included in the immediate predecessor ATC EA in recognition that ab initio trainees were a fundamentally different class of employee to qualified air traffic controllers,13 and that it was not intended that ab initio trainees have access to the full range of entitlements applying to operational ATCs under the 2012 EA;
(d) Clause 4 of Schedule 1 provides that Airservices may terminate an ab initio trainee's employment where the trainee fails to satisfactorily complete an essential unit of training;
(e) in its terms, Clause 4 is plainly directed at the process of managing a trainee's employment where the trainee is not meeting an aspect of the ATC training course;
(f) Clause 50 sets out the principles to be applied by Airservices in managing suspected underperformance issues that arise in respect of its employees, and the actions that Airservices may take to manage underperformance including termination of employment;
(g) to the extent that Clause 50 could by its terms have any application to managing an ab initio trainee's failure to meet a requirement of the training course (which is contested – see paragraphs 2530 to 30 below), Clause 4 excludes its operation.”[25] (reference omitted)

Clause 50 is one of a suite of terms in the 2020 Agreement dealing with disciplinary matters or termination of employment. Clause 51 addresses the subject of standdown, including for disciplinary purposes. Clause 52 deals with notice of termination; Clause 53 abandonment of employment; Clause 54 redeployment and redundancy; Clause 55 fitness for continued duty; and Clause 56 the loss of essential qualification. The contested Clause 50 deals with the subjects of performance and conduct management and the consequential taking of action.

An earlier decision on the subject clause, The Civil Air Operations Officers’ Association of Australia v Airservices Australia[26] (Civil Air) from Commissioner Bissett, found that “Clause 50 of the Agreement has three sections – clause 50.1 is a general statement with respect to managing performance and conduct matters. Clause 50.2 concerns the application of principles of procedural fairness and clause 50.3 deals with the formal process for managing performance or conduct”. Civil Air then rejected the proposition that a formal performance process could not be commenced until the informal process had concluded. Further, Commissioner Bissett found it was not mandatory for assistance to be provided for each incidence of unsatisfactory performance or misconduct.[27]

Airservices argue the terms of the 2020 Agreement “operate to exclude Clause 50 from applying to the applicant” with the basis of that exclusion being the prescription within Schedule 1, Clause 2 that the schedule applies to Ab Initios “to the extent of any consistency”.[28]

Airservices argue Schedule 1 was included in the 2017 Agreement for specific purposes. First, it reflected the special place that Ab Initio trainees have within Airservices and in particular that they are employed to undertake the Air Traffic Controller training course over a period of 13 to 15 months after which they will be employed for field training of around 4 months duration.[29] These things are expressed in writing to the trainee.[30]

Second, the change reflected the fact that management of a trainee’s progress is the subject of considerable framework outside of the enterprise agreement. Third, the management of a trainee’s progress in their course of training is a key area of difference to the management of qualified Air Traffic Controllers.

In this matter, Airservices seeks regard to be had to a range of materials provided to the Commission in the course of Mr Knauer’s evidence. Mr Knauer put forward that between November 2015 and December 2016 he was involved in bargaining for what became the 2017 Agreement. His evidence goes to the subject of what motivated Airservices to propose what is now Schedule 1, and the course of bargaining that led to the final schedule. Consideration of Airservices’ submissions and evidence in that regard requires consideration of the principles of ambiguity and surrounding circumstances in order to determine the proper construction of Clause 50 and Schedule 1. Mr Knauer’s evidence included that;

“9. Airservices did not intend that ab initio trainees should have access to the full range of entitlements applying to operational ATCs under the 2012 EA, on the basis that trainees undertake a training course in the Learning Academy (running during business hours Monday to Friday) and do not perform shiftworker roles in an operational environment until they have successfully completed the course requirements .
10. In preparation for bargaining, the bargaining team sought feedback from various business areas in relation to possible amendments to the 2012 EA. A manager from the Airservices Learning Academy advised the bargaining team that the proposed replacement enterprise agreement should more clearly address the terms and conditions that applied (or did not apply) to ab initio trainees.”[31]

Mr Knauer says that in the course of bargaining the tabling in negotiations of a draft for what is now Schedule 1 “intended to clarify key differences between entitlements available to qualified ATC’s and those available to Ab Initio trainees”.[32] Inclusion of the schedule stemmed from discussions, in late November or early December 2015, in which Airservices and Civil Air, the union bargaining representative, agreed that “trainees were a fundamentally different class of employee to qualified air traffic controllers, and that it was appropriate for the proposed 2017 EA to reflect that. It was also agreed that Schedule 1 was intended to confirm the terms and conditions applying to ab initio trainees, rather than changing those terms and conditions”.[33] His evidence though was that the “proposed schedule was not controversial. It was given only limited attention during the bargaining process”.[34]

The original draft of the schedule proposed by Airservices and put to Civil Air was a proposal “to include a schedule to the new EA to specifically set out the entitlements of ab initios”.[35] The original schedule proposed by Airservices included two terms not subsequently agreed in the course of bargaining; a term dealing with the ordinary hours of work of Ab Initio trainees and a term dealing with recreation leave.[36]

After agreement was reached on all matters and the employee access period had commenced information sessions were conducted.

Schedule 1 as made in the 2017 Agreement was later adopted without change in the 2020 Agreement. Similarly, Clause 50 in the 2020 Agreement is the same as that in the 2017 Agreement. There are no materials or evidence before me about how those terms were explained to employees at the time the 2020 Agreement was made.

Schedule 1 as made in the 2020 Agreement does four things;

It defines the class of people to whom the schedule applies;

It prescribes that the schedule applies “to the extent of any inconsistency” to the exclusion of other parts of the agreement;

It deals with the subject of personal/carer’s leave for Ab Initio trainees, providing that Clause 37 of the agreement does not apply to them; and

It deals with the subject of an Ab Initio trainee’s “termination of employment”, prescribing that “Airservices may terminate the employment of an Ab Initio if that Ab Initio fails to satisfactorily complete an essential component of their training”.

It requires noting that an undertaking was provided to the Commission in the process of approval of the 2020 Agreement which affects the rights of Ab Initio employees, with that undertaking providing;

“2. During the term of the Agreement Ab Initio Trainees will be not required to work night shift or to perform ordinary hours on weekends.
3. This undertaking is provided on the basis of issues raised by the Fair Work Commission in the application before the Fair Work Commission.”

What may be distilled from Mr Knauer’s evidence about the schedule in the 2017 Agreement are, in summary, these things;

Airservices’ motivation for the Schedule was a managerial desire that the proposed replacement enterprise agreement should more clearly address the terms and conditions that applied (or did not apply) to ab initio trainees.[37]

Reportedly Airservices and Civil Air agreed trainees were a fundamentally different class of employee to qualified air traffic controllers. The Schedule should “confirm” rather than change the conditions applying to trainees.[38]

In or around November 2015, Airservices provided the first draft of the Schedule to a bargaining meeting. The proposed term dealt with three substantive subjects (other than defining the term Ab Initio and including an inconsistency term); arrangements for Ab Initio ordinary hours of work; personal and carer’s leave for Ab Initios; and a termination of employment provision stating that “Airservices may terminate the employment of an Ab Initio if that Ab Initio fails to satisfactorily complete an essential component of their training”;[39]

The first draft of the Schedule was amended in December 2015 by including a new clause dealing with the accrual and taking of recreation leave,[40] which in turn was removed in February 2016 after a request by Civil Air.[41]

A “summary of negotiations” document dated 15 December 2016 states under a heading Who Proposed/Rationale”;

“Airservices/Remove ambiguity surrounding AB entitlements (proposed by learning academy)”[42]

Bargaining ended in December 2016 and communications to employees about the proposed agreement commenced in 2017. The slide deck provided to employees stated as a “highlight” that the proposed agreement would include “A new ab initio schedule, showing clearly where entitlements differ from other employees covered by the Agreement”.[43] Further, it was communicated as part of the “Agreed outcomes” that a new clause would be introduced; “Schedule 1 Ab Initio Schedule – defining where entitlements differ from other employees covered by the Agreement”.[44] In an FAQ document reference was made to the proposed new Schedule with the following Q and A;

“Q4. What has changed?
There have been some changes to the EA that include the following new provisions:
·Enhanced consultation on rostering that gives effect to the Fair Work Act
·Ability to cash out excess annual leave at employee request
·Simplification of transfer provisions
·Career Break Scheme
·A new ab initio schedule that clarifies trainee entitlements

A new definition of Employee Representatives has been provided that encompasses both Union and other nominated employee representatives.”[45]

Despite the matters dealt with in Schedule 1 having first been introduced to bargaining in November 2015, bargaining itself was not concluded until December 2016 with the resulting agreement signed by the relevant representatives on 20 and 21 March 2017. The 2017 Agreement operated from 30 March 2017.[46] Near to the same time Airservices implemented a Performance Improvement Procedure (PIP), which came into effect on 10 March 2017. That document describes the changes it brings about as including that it is “clarified that this procedure does not apply to Ab Initios and employees in probation”. Within the body of the procedure, it is defined as applying “to all Airservices employees with the exception of Ab Initios and employees in probation”.[47] The authors of the procedure Jorge Scarneo and Philippa Prothero did not give evidence in these proceedings.

While the PIP may not strictly be post-agreement conduct, having been brought into being shortly before the 2017 Agreement was approved by the Commission, but seemingly after it was “made”, the PIP is not “such as to show that there has been a meeting of minds, a consensus”.[48]

The relevant parts of Schedule 1 are Clauses 2 and 4.

I do not find from the evidence before the Commission on the subject of the construction of Schedule 1, being that of Mr Knauer’s and the documents he tabled, that the disputed term is ambiguous.

The material placed before the Commission by Mr Knauer about Airservices’ intention for Schedule 1 really only rises to the point of it being evidence that it and Civil Air sought to, “more clearly address” the employment conditions of trainees and to ““confirm” rather than change the conditions applying to trainees”. His evidence about the explanation given to employees – who presumably included a number of trainees – was that the proposal was “defining where entitlements differ” and that the schedule “clarifies trainee entitlements”.

There is no evidence from Civil Air or any other bargaining representative on the subject of the negotiations or their intentions.

At best, Mr Knauer’s evidence relates Airservices’ “intentions, aspirations or expectations” for the term; most certainly it wanted clarification, however no detail at all is given beyond the things within the term as to what clarity was to be brought to the bargaining table and thereby the enterprise agreement. Mr Knauer’s evidence was that at various times during bargaining Airservices wanted the Schedule to address four subjects; ordinary hours or work; personal/carer’s leave; termination of employment; and recreation leave.[49] Despite Mr Knauer’s view that the schedule “was not controversial”, Airservices succeeded in reaching agreement on only two of those subjects; personal/carer’s leave and termination of employment. There is not only no evidence before the Commission on why the other subjects were removed, but no objective evidence clarifying or confirming the purposes of the clauses which survived bargaining, the current Clauses 3 and 4 of Schedule 1. Clause 3 is in specific terms and likely does not require extrinsic material in order to ascertain the parties’ common intention. Clause 4 of Schedule 1 though has potential broad application if Airservices is correct in its construction. The prospect of Airservices’ stated motivation for the schedule being to “more clearly address” the employment conditions of trainees and to ““confirm” rather than change the conditions applying to trainees” implies that what was to be within the schedule was a continuation of existing practice, yet the Respondent’s evidence does not extend to what those existing practices may be.

There is no identifiable ambiguity within Clause 2, which merely provides that the schedule applies to Ab Initios only and that “[t]o the extent of any inconsistency, this schedule applies to the exclusion of other parts of this Agreement.” The term is not ambiguous and none of the material brought to the Commission by Airservices reasonably leads to the conclusion that it is. The words of the clause are to be readily understood as providing that when the schedule provides for a matter, then a provision on the same subject elsewhere in the agreement has no operative effect.

Clause 4 (Termination of employment) in its entirety provides that “Airservices may terminate the employment of an Ab Initio if that Ab Initio fails to satisfactorily complete an essential component of their training”. That provision is also not ambiguous and none of the material before me would allow such a conclusion.

The material before the Commission is summarised above. In late 2015 Airservices wanted to “more clearly address the terms and conditions that applied (or did not apply) to ab initio trainees” proposing a schedule which “confirmed” rather than changed the conditions applying to trainees. By late 2016 and early 2017, when bargaining had concluded and employees were asked to consider the proposed agreement, they were told the new schedule defined where entitlements differed and that it clarified trainee entitlements. Those things – the intentions, aspirations or expectations of the parties (and really only one of them, being Airservices) – do not rise to the point of revealing an ambiguity in Clause 4 of Schedule 1. Airservices’ material is at best merely descriptive of the “intentions, aspirations or expectations” of Airservices.

Clause 4 indeed does clarify the rights of the parties in respect of Ab Initios – they may be terminated if they fail to satisfactorily complete an essential component of their training.

The uses of the word terminate, or its derivatives, are in several contexts across the agreement, with the context for the purpose of this dispute being confined to actions to end an employee’s employment. The phrase “may be terminated” coupled as it is with the contingency of failure to “satisfactorily complete an essential component” of training is plainly a discretionary decision on the part of Airservices; there does not have to be a termination of employment, but there may be. The clarification provided, on the ordinary or usual meaning of the words employed, is to give permission for termination for the reason of the specified failure. Such clarification, particular to Ab Initios, is not unusual in the context of other provisions of the 2020 Agreement (as well as the 2017 Agreement);

Clause 55 (Fitness for Continued Duty) provides that in the case of an employee deemed to be suffering from a health problem that impairs for the long term their capacity to perform their duties that “Airservices may take action that includes, in descending order, but is not limited to the following: …(e) Terminate an employee’s employment with Airservices”.

Clause 56 (Loss of Essential Qualification (LOEQ)) provides that “Permanent loss of an essential qualification may result in redeployment or termination of employment”;

The prospect that there may be termination after a certain process has been followed, or certain considerations given, is not even unusual within the context of Clause 50 which itself puts forward that dismissal is a discretionary decision being but one of several alternatives once Airservices has decided upon action;

“50.3. Formal Process
Where Airservices has serious concerns with an employee’s performance and/or conduct, Airservices will observe the principles of procedural fairness, advise the employee of its concerns in writing, setting out relevant particulars and arrange a meeting with the employee to discuss those concerns before taking any action against the employee. This process does not apply where the employee has engaged in serious misconduct that warrants summary dismissal.
Without exhaustively stating the actions that Airservices may take to manage an employee’s poor performance and/or conduct, Airservices may:
(a) require the employee to undergo remedial training and/or counselling as appropriate to the circumstances of the case;
(b) give the employee a written warning appropriate to the circumstances of the case;
(c) set conditions with which the employee needs to comply;
(d) reduce the employee in classification for a period of time or indefinitely;
(e) terminate the employee’s employment.”

The other thing which is notable from the “formal process” clause is that the obligation to observe the principles of procedural fairness is stated as applying universally, with one exception – “where the employee has engaged in serious misconduct that warrants summary dismissal”. This, coupled with the provisions of Clauses 55 and 56 and the generality of the statement of alternatives at the end of Clause 50.3 that after the stipulated process “Airservices may … terminate the employee’s employment” leans to the construction of Clause 50 being that it sets out processes of application to all employees under the 2020 Agreement, with the exception of those who have “engaged in serious misconduct that warrants summary dismissal”.

There is no part of the evidence before me that would allow a finding that the words used in the Clause 4 of Schedule 1 mean something different to the proposition that there does not have to be a termination of employment, but there may be. Observably Schedule 1 makes no reference to Clause 50. If there is an inconsistency of the schedule on matters associated with a decision to “terminate the employment of an Ab Initio” the inconsistency will need to be established through the construction both of the Schedule and the “other parts of this Agreement” that may be in contention.

As a result, the schedule and its interaction with the remainder of the enterprise agreement turns to be decided on the ordinary meaning of the relevant words.

The possibility that “Airservices may terminate the employment of an Ab Initio” is expressed as being contingent on the employee failing to satisfactorily complete an essential component of their training. The first part of the contingency is straightforward ; with “failure to satisfactorily complete” likely being a reference to the standards Airservices sets for passing and failing and as adopted as part of its Registered Training Organisation processes. The 2020 Agreement gives no illumination of what is an “essential component” of the employee’s training, however that subject does not require determination in order to ascertain the construction of the disputed terms. By providing that “Airservices may terminate the employment” of such an employee the schedule clarifies the person’s employment is not ongoing or indefinite in the way that may be the case for other people employed under the agreement and that termination may be for reason of failure of an essential component of training in addition to such other termination rights as may exist.

In this regard, consideration should be given to Clause 18 (Categories of Employment) which draws a distinction between probationary employment, permanent full-time employment, permanent part-time employment, casual employment and fixed term employment. The clause provides that probationary employment is for a period of three months or such “longer period which is expressly stated to be associated with the successful completion of a formal period of training according to a formal assessment mechanism)”, which could be a reference either to a longer period stated in the 2020 Agreement (which there is not) or in a person’s contract. Mr Crouch’s offer of employment states that his “ongoing employment with Airservices is subject to the successful completion of a qualifying period (which includes a six (6) month probation period). The qualifying period extends for the duration of the Diploma and Field Location training periods and ends on the date you successfully complete your Field Location training and you are issued with an initial Air Traffic Control Rating and licence”.[50] However that contractual provision plainly does not determine the meaning of Clause 18.

In proper context the provisions of Clause 18 reinforce there is a clarification given by Clause 4 of Schedule 1; notwithstanding the employment category of an Ab Initio, Airservices “may terminate” their employment if they fail “to satisfactorily complete an essential component of their training”.

In conclusion there is no inconsistency between Clause 50 and any part of Schedule 1, including Clause 4. The ordinary meaning of the words of Clause 4 of Schedule 1 is that it provides for a discretion on the part of Airservices to terminate the employment of an Ab Initio who has failed to satisfactorily complete an essential component of their training.

(b) Does Clause 50 apply to Mr Crouch’s employment?

By way of an alternative argument Airservices submitted that, even if the effect of Clause 2 and 4 of Schedule 1 does not operate to create an inconsistency between the schedule and Clause 50, the clause in any event has no operation to Mr Crouch or any other Ab Initio employee. This is because Clause 50 establishes a process for managing an employee whose performance is unsatisfactory, with a primary focus on improving that person’s performance to “a satisfactory level”. It is further submitted;

“28. Read in context, clause 50 is directed at assisting an employee who is underperforming to return their performance to a satisfactory standard. This clause has obvious application in circumstances where a qualified ATC (who has successfully completed the full course of training, attained a licence and performed their duties in the field) is identified as underperforming. Where such an employee is not performing to the required standard, clause 50.1 contemplates that they will receive constructive assistance (including possibly a course of training) to support them to resume performing at a satisfactory level. Where such assistance does not result in the employee performing to the required standard and Airservices has serious concerns with the employee's performance, clauses 50.2 and 50.3 require Airservices to afford the employee procedural fairness before taking any formal action (including reduction in classification or termination of employment) to manage the underperformance.
29. This can be contrasted with the position of an ab initio trainee who is not meeting the requirements of the ATC training course. By definition, ab initio trainees are unqualified and inexperienced in the field of air traffic control. They are laypersons being paid to undertake a course of study where they progressively acquire the theoretical knowledge and practical skills required to operate as an air traffic controller. They have not yet demonstrated the required skills and knowledge to undertake field training or ultimately attain an air traffic control licence, rating or endorsement. They are not employed to perform duties in an operational role, and there are no "performance standards" that they are required to meet. Instead, there are minimum academic requirements in each unity of study that must be met in order to progress to the next phase of training.
30. Clause 50 should not be construed in a manner that extends the operation of the performance management procedures designed for qualified, experienced employees to ab initio trainees who are employed in entirely different circumstances and on a fundamentally different basis.”[51]

The propositions set out above would invite a narrow and pedantic approach to construction of Clause 50 and cannot be favoured. When Madgwick J in Kucks v CSR Limited eschewed such an approach to construction he counselled that the search should be “for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon”.[52] There is no warrant within the 2020 Agreement for a conclusion that the phrase “performance and/or conduct” has no application to Ab Initio trainees. The clause does not say that its provisions are to be applied only to one group of employees and not another (with the exception of those accused of serious misconduct). Consideration of the 2020 Agreement as a whole leads to the conclusion that when the drafters intended a provision to apply or not to a particular group or employee it makes that plain in its terms; see for example, Clauses 18 (Categories of Employment), 19 (Hours of Work), 24 (Training Bond Agreement), 33 (Superannuation), 37 (Personal Leave and Special Leave – ATC), 38 (Personal Leave – Employees other than ATCs), 55 (Fitness for Continued Duty), 56 (Loss of Essential Qualification (LOEQ)), 57 (Employees who are entitled to benefit of early retirement provisions under previous industrial instruments: Special Provisions).

While certainly not determinative of the clause’s construction, Mr Clarke and Mr Bosnich’s both refer to trainees not performing to the required level when they do not show sufficient progress with their training (with underlining added in each case);

Mr Bosnich’s evidence is that “[T]he purpose of a training review is to determine what action to take in respect of a trainee who is not performing to the required level. Training reviews may be conducted when a trainee has been assessed as "not yet satisfactory" during any formative or summative assessment in their training course (theoretical or practical), or at any stage of training where the trainee has not demonstrated adequate progress”[53]

Mr Clarke refers to the ATC Training Manual describing the “the process to be followed in circumstances where a trainee is not performing to the required level.” The Manual extract itself sets outs its purpose as being “[t]o demonstrate the review process should a trainee not be performing to the required level”[54]

Related to the application of Clause 50 to Mr Crouch’s employment are submissions made by Airservices about Civil Air, the decision by Commissioner Bissett, potentially providing guidance to the resolution of this matter. Civil Air considered the approach taken by Airservices to the performance management of a qualified and experienced air traffic controller stood down for concerns as to whether he was demonstrating consistent performance of safe and efficient standards. Airservices submits in this matter that Commissioner Bissett had found Clause 50 is a self-contained provision[55] “meant in the sense that it sets out an informal process for responding to performance concerns separate from a formal process to which the other provisions in clause 50 are directed”, going on to “reject that clause 50.1 was required to be observed in all cases as a precondition to conducting a formal process under clause 50.3”[56].

The context of the findings in Civil Air was a dispute about whether Clause 50 mandated the provision of assistance to a person about whom there were performance concerns, with the term expressing that the “primary focus … should be to constructively assist the employee to improve their performance and/or conduct to a satisfactory level within a reasonable time”. Civil Air noted Clause 50 as a whole comprised three sections “clause 50.1 is a general statement with respect to managing performance and conduct matters. Clause 50.2 concerns the application of principles of procedural fairness and clause 50.3 deals with the formal process for managing performance or conduct”.[57] The decision found that ““should” is used in the sense of creating an obligation on the employer, prior to commencing any formal process, to consider what might practically be done first to assist the employee to improve”.

Regard to Civil Air as a whole shows a distinction was drawn between steps of assistance to be taken during informal and then formal performance management. Clause 50.1 refers to constructive assistance that “should” be provided, whereas Clause 50.3, the “Formal Process” does not. Rejecting the proposition that a formal performance process could not be commenced until the informal process had concluded, Civil Air found it was not mandatory for assistance to be provided for each incidence of unsatisfactory performance or misconduct;

“[50] Clause 50.1 of the Agreement deals with performance and conduct issues. If Civil Air is correct and “should” mandates the provision of assistance through the informal process then this would be required for all performance and conduct issues, regardless of the severity of the poor performance or conduct. The formal process in clause 50.3 of the Agreement could not be initiated until the informal process (the constructive assistance) had occurred, yet there is nothing in clause 50.3 to suggest it cannot be utilised until the application of clause 50.1 is exhausted (however this might be measured).
[51] Further, clause 50.1 of the Agreement requires some assessment of the appropriateness of the assistance being offered. That the assistance must be appropriate imports some consideration of the totality of the circumstances confronting Airservices in relation to the particular employee in determining what assistance might appropriately be provided.
[52] The issue is whether, in all cases of poor performance or in each instance of poor performance, Airservices must go through this process in clause 50.1 of the Agreement before moving to the more formal process in clause 50.3 of the Agreement. In this regard it is my view that, in determining the assistance to be offered, the appropriateness of that assistance can, and should, properly consider past assistance. To not do so would be to ignore the context within which the assistance is being delivered.
[53] For these reasons I do not consider that it is mandatory that for each incidence of unsatisfactory performance or misconduct Airservices must provide constructive assistance directed at improving that particular performance or conduct of the employee concerned. Whilst the capacity or appropriateness of providing such assistance should be the first consideration it cannot be the only consideration. The word “should” is not to be read otherwise in the context of clause 50 of the Agreement.”

I do not disagree with Civil Air’s ultimate finding – that whilst the capacity or appropriateness of providing constructive assistance should be the first consideration it cannot be the only consideration.

In application to Mr Crouch, this reasoning leads to the question of whether constructive assistance was provided to him and, if it was not, were there other considerations that may have meant it was not feasible or appropriate to do so? Irrespective of this Clauses 50.2 and 50.3 have work to do in his case, with the former stating the principles of procedural fairness and the latter requiring Airservices observe the principles where it has serious concerns with his performance or conduct.

I am satisfied that Clause 50 has application to Mr Crouch and that Airservices is required to comply with its terms in decisions about him.

(c) Has Airservices complied with clause 50?

Having found that clauses 2 and 4 of Schedule 1 to the 2020 Agreement do not operate to exclude Clause 50 from applying to Mr Crouch, consideration turns to whether Airservices has complied with the terms of Clause 50.

Introduction

The terms of Clause 50 are set out in the Attachment to this decision and are summarised by Mr Crouch as including the following commitments to him;

“52. Clause 50.2 of the Enterprise Agreement provides that Airservices will adhere to the principles of procedural fairness when managing an employee in relation to suspected underperformance or misconduct. This means that Airservices will:
a. promptly advise the employee of its concerns;
b. provide enough time to the employee to be represented or supported in relation-to the performance and conduct management process;
c. provide enough opportunity for an employee to respond to the concerns raised by Airservices and to genuinely consider that response;
d. Airservices will be unbiased in the consideration of the employee’s views and will genuinely consider the matters put by the employee or by their representative; and
e. take actions and issue sanctions that are proportional to the employee’s performance and conduct.

53. Clause 50.3 of the Enterprise Agreement provides that where Airservices has serious concerns with an employee’s performance and/or conduct, Airservices will observe the principles of procedural fairness, advise the employee of its concerns in writing, setting out relevant particulars and arrange a meeting with the employee to discuss those concerns before taking any action against the employee. The actions that Airservices may take to manage an employee’s poor performance and/or conduct, Airservices may include requiring the employee to undergo remedial training.
54. Airservices did not fulfil these obligations to me and my particular circumstances.”[58]

Mr Crouch’s closing submissions narrow the aspects of these matters which he submits have not been afforded to him;

“9. Most notably, the evidence before the Fair Work Commission establishes that:
(a) during the course of the Applicant's training, at a time when Airservices Australia says the Applicant was underperforming, it failed to meet the obligation imposed upon it to constructively assist the Applicant to improve his performance to a satisfactory level, within a reasonable time, giving feedback and assistance as appropriate;
(b) the evidence establishes that Airservices Australia failed to provide procedural fairness to the Applicant when managing his suspected underperformance in the manner required under clause 50 of the Enterprise Agreement. Most notably, the evidence when considered in totality, establishes that Airservices Australia:
(i) failed to promptly advise the Applicant of Airservices Australia's concerns;
(ii) failed to provide the Applicant with sufficient time to be represented or supported in relation to performance management processes;
(iii) failed to provide the Applicant with enough opportunity to respond to Airservices Australia's concerns and to genuinely consider that response;
(iv) was biased in its consideration of the Applicant's views;
(v) failed to genuinely consider matters put by the Applicant in respect of its management of the Applicant; and
(vi) have taken (and propose to take) actions and issue sanctions that are wholly disproportionate to the Applicant's performance and conduct.”[59]

These claims fall to be tested against what took place.

Summary of Performance in Phase Two

Mr Crouch’s progress in Phase 2 requires consideration before turning to consideration of his procedural fairness arguments.

Types of Assessment

There are three types of assessment relevant to the analysis of Mr Crouch’s performance in Phase Two: progress evaluations, theoretical assessments and periodic tracking. These three methods of assessment are not entirely discrete from one another. Specifically, periodic tracking takes into account the results of both theoretical assessments and progress evaluations so should not considered as an entirely separate indicator alongside these other two methods of evaluation.[60]

Progress Evaluations

Mr Crouch undertook six progress evaluations during Phase Two of his course. These progress evaluations took place approximately once a month until Mr Crouch’s placement on training review, at which point they ceased. [61]

The results of the progress evaluations show four fields of assessment: operating facilities, comms, executing control actions, and maintaining situation awareness. Each of these fields is then divided into a number of separate elements for evaluation, with all fields except for comms being divided into three of these elements, while comms is divided into two. In total there are 11 elements. Mr Crouch’s performance is summarised as follows:

In his first progress evaluation (PE1) on 25 March 2020, Mr Crouch was rated satisfactory in all fields.
In his second (PE2), on 28 April 2020, Mr Crouch was rated satisfactory in all fields except for two.
In his third, (PE3), on 1 June 2020, Mr Crouch was rated satisfactory in seven fields and not yet satisfactory in four fields.
In his fourth, on 18 June 2020, Mr Crouch was again rated satisfactory in seven fields and not yet satisfactory in four fields.
In his fifth, on 22 July 2020, Mr Crouch was rated satisfactory in three fields and not yet satisfactory in eight.
In his sixth, on 12^th August 2020, Mr Crouch was rated satisfactory in nine fields and not yet satisfactory in two. [62]

According to Mr Bosnich’s statement “It is not uncommon for students to have some "Not Yet Satisfactory" outcomes recorded in their Progress Evaluations, and I rated his performance on the Progress Evaluations as average relative to other students.”[63]

The First Training Review failed to consider Mr Crouch’s sixth progress evaluation result in Phase 2. Due in part to this error being raised, a Second Training Review was conducted and approved by Mr Bosnich. The assessment of Mr Crouch’s performance in terms of progress evaluations was as follows:

“Luke performed at the standard expected for that stage of training during the first PE. During the next four PEs Luke received a ‘NYS’ score in the element of ‘Maintaining Separation/DTI’. The reports indicate that Luke made a majority of errors in ‘Maintaining Separation’ and generally had an acceptable performance for DTI processing. In PE5, Luke received ‘NYS’ scores in eight out of eleven elements. In PE6, Luke received ‘S’ scores in nine out of eleven elements which is considered an improvement in performance. Luke received an ‘S’ score in the element of ‘Maintaining Separation/DTI’.” [64]

“Luke did not perform at the standard expected during PEs two, three, four and five. Luke received a ‘NYS’ score in the element of ‘Maintaining Separation/DTI ’in these four PEs. His unsuccessful theory assessments are considered causal to this outcome… Luke’s performance improved in most elements during PE6 where he received ‘S scores in nine out of eleven elements. He received ‘S’ in ‘Maintaining Separation/DTI’.”[65]

In his statement, Mr Crouch states that his results for PE5, which he undertook the same day as the ASA-119 Separation Standards exam, were, like the results of that exam, an outlier due to having to catch up on course material in a compressed time frame prior due to COVID related leave.[66]

He further notes that progress evaluation results are “cumulative in nature” and his results in PE6 accordingly show that following PE5 he had consolidated the concepts which were previously in issue, including the element of ‘Maintaining Separation/DTI’.[67]

Theoretical Assessments

There are four theory assessments in Phase 2. Of these, Mr Crouch passed two, with marks slightly lower than the course averages; on the Lateral Drawing Assessment Mr Crouch received a mark of 91, with the course average being 91.1% and on the Local Assessment Paper, Mr Crouch received an 89% with the course average being 93.1%. Mr Crouch failed one, the ASA -119 Separation Standards, with an initial mark of 45.9% and a supplementary mark of 68.7%, with both of these marks being significantly lower than the course average of 83.2%. Mr Crouch was placed under training review prior to sitting the fourth examination.[68]

The minimum pass rate for theoretical assessments is 70%, in accordance with requirements imposed by the Civil Aviation Safety.[69]

Mr Bosnich’s evaluation of Mr Crouch’s performance in the ASA-119 Separation Standards assessment was that the result was “very out of the ordinary. In my experience, most students pass theoretical assessments on their first attempt, and those that fail typically only fall short of the 70% pass mark by a slim margin. My experience is that students who fail an initial assessment usually go on to score well above 70% in the supplementary exam. This reflects the fact that they have been assessed on the content previously, and have had an opportunity to revisit the material and address any knowledge gaps.”[70]

Mr Crouch’s assessment was that had he been provided with appropriate debriefing and feedback following his initial attempt at this exam, he would have passed the second exam.[71]

Periodic Tracking

Nine instances of periodic tracking of Mr Crouch’s performance occurred in Phase Two, between 18 March 2020 and 14 August 2020, including one which is undated. In the first seven instances Mr Crouch was given the second highest rating available of four ratings, ‘at level’. In the last two instances, on 23 July 2020 and 14 August 2020, Mr Crouch was given the rating below ‘at level, that being ‘below level LOW’.[72]

Mr Crouch notes that, “During Phase 2 and in or around March 2020, one of my instructors, Adam Gardiner, told me that he had never rated someone as being ‘Above level’ in all his years as an instructor, and based on my discussions with my classmates during my time at the college, I am aware that none of them had ever been assessed as being ‘Above level’. From the documents Airservices has produced to me as part of this dispute, I can see that no trainee in my cohort nor any trainee re-coursed in the last three years was ever assessed as being ‘Above level’.”[73]

As noted previously, periodic tracking takes into account performance in the other two types of assessment outlined above. On this basis, Mr Crouch states that the first of the ‘below level LOW’ ratings in his periodic tracking was the result of the PE5 outcome, discussed in the Progress Evaluation section above.[74] Mr Crouch also states that the ‘below level LOW’ rating in the second instance was largely based on his performance in the ASA-119 Separation Standards exam, discussed in the Theoretical Assessments section above, and was verified to be as such by his instructor Tracy Thornley.[75]

Illness & isolation – March – August 2020

Mr Crouch missed two weeks of training from 29 June to 13 July 2020. On 28 June 2020 he undertook a COVID test and was told he had a fever. He was directed to self-isolate at home until a negative result was returned from his test. On 6 July 2020, Mr Crouch’s test was returned with an inconclusive result. He was then required to take another test, which took place on 7 July 2020. This returned a negative result on 8 July 2020. Due to the government guidelines in place at the time, Mr Crouch was then required to attend a GP appointment to cease self-isolating. At the GP appointment, which took place on 8 July 2020, the GP took Mr Crouch’s temperature and told him to self-isolate for another 48 hours and only return to work if he had no fever during that period.[76]

Mr Crouch details that these two weeks of isolation had a “profound effect” on his wellbeing. Due to his partner being in Brisbane, he was at home in Melbourne by himself. The rules at that time specified he was not allowed to leave the house for exercise or fresh air. This resulted in Mr Crouch reporting that, at that time, his “morale was extremely low” and he was “struggling with self-isolation” in addition to feeling unwell.[77] A further stressor which Mr Crouch notes as impacting upon him at this time was the fact that he was “very concerned about missing two weeks of ATC trainings and runs on the simulators, particularly given that it was coming up to the pointy end of Phase 2.”[78]

As a result of these concerns, Mr Crouch had a number of phone calls during this period with Mr Derek Russell, an ATC instructor. During these phone calls Mr Crouch reports that he relayed “concerns about missing activities and falling behind.” To these concerns, Mr Crouch states that Mr Russell “told me not to worry and that ‘it would be okay’ as I would be given the opportunity to catch up.”[79]

Mr Crouch also describes finding it challenging to study in this period due to his feelings of illness, his difficulties with self-isolation and the fact he was someone who “learns best by ‘doing’.”[80]

Training Support

During phase one, Mr Crouch was unsuccessful in two of twelve initial theoretical assessments. Mr Steven Clarke, at the time Airservices’ Operational Training Head, details the support he says Mr Crouch received in relation to these failures as follows,

“(a) The Applicant failed his initial assessment in unit ICAO004 -Air Traffic Services. The Applicant was provided with a Training Support Agreement (TSA) in respect of the unsuccessful assessment, which included a new workbook, review quizzes and a debriefing session to clarify any knowledge gaps. He requested that his supplementary examination be postponed due to his workload, and this request was granted. The Applicant scored 70.2% on the supplementary exam, which indicated significant deficiencies in understanding. He was provided oral top-up training in relation to all incorrect responses to assist him to gain a full understanding of the subject material…
(b) The Applicant failed his initial assessment in unit ASA 108 -Aircraft Performance and Recognition. The Applicant was provided with a TSA in respect of the unsuccessful assessment, which included a new workbook, handouts, PowerPoint information and quizzes. After successfully completing the supplementary exam, the Applicant was provided oral top-up training to revise all incorrect responses and ensure he had full understanding of the subject material.”[81]

Mr Clarke also states that throughout his employment with Airservices’ Mr Crouch had access to the following pastoral and academic support services: EAP – Employee Assistance Program (external); SafePlace – an internal employee support program for the provision of essential psychological wellbeing and investigative support (internal); and Peer Support Officers.[82] Mr Crouch submits that this is misleading for the following reasons,

“I first learnt of the SafePlace program from an Airservices employee unrelated to the training college on 6 September 2021. I contacted Ms Crisara and requested the details the same day. I had never heard of Peer Support Officers before reading the SC Statement. It remains unclear to me how any of these programs offer academic support.”[83]

During his two-week period of isolation, from 29 June to 13 July 2020, Mr Crouch states that his absence meant he was unable to practice the application of separation standards on the simulators throughout that period. Mr Crouch reports that he received no support from Airservices during this time, other than Mr Derek Russell, an ATC instructor, offering to deliver groceries to him following Mr Crouch explaining to him the challenges he was experiencing while self-isolating.[84]

Mr Crouch states that upon his return to work he “felt a bit shaky on the console” as a result of his absence and discussed this with Mr Russell in the weeks following his return. He says Mr Russell told him “not to worry and that it would be okay.”[85]

Mr Crouch states that the training content which he missed during his two-week absence was delivered to him in a compressed time frame over two and half days through one-on-one instruction. He reports that during this catch-up period he missed further activities, which he then caught up on while the other trainees in his cohort were given opportunities to undertake runs on the simulators to consolidate what they had learnt. Mr Crouch states that these catch-up activities also affected his ability to prepare for the ASA 119 Separation Standards theory exam. He submits that “no support was provided to address the fact that I was being overloaded or operating on a materially compressed timeline.”[86]

Mr Clarke’s description of this period differs from Mr Crouch’s in that he notes Mr Crouch’s theoretical assessment for the ASA 119 exam was postponed until 22 July “to allow him an opportunity to catch up.”[87]

Following his failure of the first ASA 119 exam on 22 July 2020, Mr Crouch had a meeting on or about 23 or 24 July 2020 with Michael Boyd, the Training Delivery Manager, and Chris Watson, an ATC instructor, to discuss his unsuccessful result. Mr Watson was assigned to be Mr Crouch’s instructor for the purposes of training support.[88]

Mr Crouch’s description of what took place in this meeting is that Mr Watson stated his exam paper was “horrible” and “not worth reviewing together” and appeared hostile and annoyed that he was being required to attend the meeting.[89] Mr Crouch then describes the meeting proceeding as follows,
“I sat at the table by myself and review my exam answers alone (while Mr Boyd and Mr Watson were talking amongst themselves). I did not receive specific feedback or a debrief on my exam, or any support, from either Mr Boyd or Mr Watson and based on the comments Mr Watson made I considered that he had ruled this out as an option.”[90]

Mr Crouch notes that his exam paper was marked with some comments and example answers from Mr Watson. However, he states that in many cases it was not clear to him why certain marks had been lost. The nature of the exam paper was that a number of questions asked for the best way of solving a problem. Mr Crouch submits that,
“The separation standard that I wrote down may have worked to maintain separation but may not have been the best separation standard to apply in that situation. Going through the exam paper with Mr Watson would likely have caught instances where that had happened. However, this opportunity was not provided to me given Mr Watson’s conduct.”[91]

At this meeting, Mr Crouch also raised a concern regarding his slow writing ability impacting on his ability to undertake the exam. Mr Boyd and Mr Watson advised him that a verbal exam was a potential option, and they would check this and return to him.[92]

On or about 31 July 2020 Mr Crouch had another meeting with Mr Boyd and Mr Watson in which they confirmed a verbal exam was an option. Mr Crouch then raised questions regarding the verbal exam format as he had not taken one previously. He reports that he expressed that he was nervous about the process and sought support and clarification.[93] In response to this, Mr Crouch states that,

“Other than a brief description saying that they would record me and transcribe my responses, no other information or support was offered. They did not address my concerns in any way and I was not given the option to do a practice verbal exam. They told me that I had until the day before my supplementary exam scheduled for 14 August 2020 (i.e. 13 August 2020) to make a decision on the exam format. I felt pressured and unsupported.”[94]

Mr Crouch states that he was approached by Mr Watson or about 10 or 11 August 2020 and instructed to make a decision by the end of the day as to whether he would be taking a verbal or written exam. Mr Crouch states he said that he would take a written exam, however notes that this took place two or three days earlier than he had previously been told he would need to make a decision regarding exam format and none of his concerns with a verbal exam had been addressed. On this basis, he says he chose to undertake the written exam as he was “too apprehensive about embarking on a new format with no support.”[95]

On or about 4 August 2020 Mr Crouch reports that he received an ASA 119 TSA Training workbook. He states he completed between 90-95% of the questions in this workbook in the period between 4 and 12 August, and that he left the other questions blank as he was usure of the answers and wished to discuss them at the meeting which had been scheduled for 12 or 13 August 2020. He submits that he “received no support from Airservices in relation to the questions I completed myself.”[96] Mr Crouch also notes that during some of this time he was also studying for the Local Rating Paper theory exam which he sat on 7 August 2020 and passed with a score of 89%.[97]

Regarding the intended methodology for completion of the workbook, Mr Clarke states that the “intended approach is for a trainee to complete the workbook independently, and to ask their instructor for assistance if they have difficulty with any aspect.”[98]

On 12 or 13 August 2020 Mr Crouch had a meeting with Mr Watson to discuss the ASA 119 TSA Trainee workbook. Mr Crouch describes this meeting as follows,

“Mr Watson said that he "only had an hour" and that we "wouldn’t be going through the whole workbook" but that he would answer any specific questions I had. We discussed the questions that I had not yet completed. With hindsight, there were probably answers in the workbook that were incorrect or lacking in detail that would have been identified had we gone through the entire workbook together. However, I did not know this at the time and, in any event, Mr Watson had ruled out going through the entire workbook as an option. The approach that was adopted required me to self-identify gaps or errors in my own knowledge. The process was unsupportive, rushed, cursory and left me attending to matters alone.”[99]

Mr Crouch also describes the workbook itself as being unhelpful in his preparations as it was identical to a workbook he had completed prior to undertaking the initial exam and contained several questions which were not relevant to the exam.[100]

Mr Clarke states that the training support agreement to address Mr Crouch’s initial failure of the Separation Standards exam was “delivered in full, as confirmed by delivery manager.” Mr Crouch dispute the accuracy of this statement, noting that;

“The delivery manager at the time was Mr Michael Boyd. While Mr Boyd was present at my initial meeting with Mr Chris Watson (who had been assigned as my instructor for the purposes of training support) on or about 23 or 24 July 2020, he was not present at my meeting with Mr Watson on 12 or 13 August 2020, where we discussed the ASA 119 TSA Trainee workbook.”[101]

On 14 August 2020, Mr Crouch failed the ASA 119 supplementary exam and was placed on training review.[102]

Events after the ASA 119 Separation Standards supplementary exam

The period between commencement of the training review and communication of its outcome to Mr Crouch

When Mr Crouch failed the supplementary exam for the ASA 119 module on 14 August 2020 his training came to an abrupt end. He was placed on “training review” the same day and instructed not to return to work.

The scope of the training review as it applied to Mr Crouch is not clear. While a template training review report is before the Commission,[103] the procedures for conducting the review (if there are any) are not.

What transpired is that the training review took six months to complete. Ms Crisara’s evidence about the amount of work involved in completion of a training review is that it was “a minimum of 8 hours of work usually over a period of several weeks”[104] She attributes the delays “to the COVID-19 pandemic and the lack of training staff in the Academy”.[105] Mr Crouch is highly critical of the delay;

“The Applicant believes that Airservices Australia "sat on" his training review until February 2021, either (having regard to the nature and extent of the errors and omissions, delay and circumstances of this matter generally), deliberately (in the hope that he would resign while on review) or due to significant maladministration and mismanagement.”[106]

The evidence does not conclusively allow such a finding, but leans in that direction, with it abundantly evident that the initial review processes were marred by missteps by Airservices and inadequate communication to Mr Crouch. In few respects can the six months that it took to produce the first training review be considered to be timely, considerate of Mr Crouch’s needs or his responses. Evidence tabled by Airservices late in the proceedings at the request of Mr Crouch showed that extraordinary delays for the completion of training reviews were routine. While such lengthy delays could be explained by the factors referred to by Ms Crisara (the pandemic and the lack of training staff) such is not reconcilable with her evidence about the inputs required to complete a review; a “minimum of 8 hours of work usually over a period of several weeks” hardly explains why a six week timeframe might be experienced, let alone six months. , Since I have difficulties with the reliability of Ms Crisara’s overall evidence findings of maladministration and mismanagement are open to be made and may not be ruled out.

Having been informed he was on training review and instructed not to return to work on 14 August 2020, two Airservices people, Emma Schafer, Competency and Standardisation Specialist Enroute, and Simone McColl, Trainee Coordinator scheduled a meeting with Mr Crouch in early September. However, the meeting had to be rescheduled since no one in Airservices had provided Mr Crouch feedback about his supplementary exam paper. After the feedback by another person, Tracy Thornley, a meeting with Ms Schafer and Ms McColl took place three days after it had originally been scheduled. While Mr Crouch was encouraged about the nature of his discussion with Ms Thornley and communicated such to Ms Schafer and Ms McColl, he detailed the concerns he had with the training support provided to him after he failed the initial exam and noted that the feedback provided to him by Ms Thornley would have been beneficial prior to the supplementary exam.[107]

From mid – September 2020 to February 2021 – a period of 5 months – there was little contact of substance by Airservices with Mr Crouch about progress on the review and no transparency regarding the process. Mr Crouch says about the situation; “I am at a loss as to why the training review process took so long. The delay is something that Airservices has never been able to explain, despite my repeated requests for an explanation”.[108]

Ms Crisara who was at the time Airservices’ Acting Trainee Coordinator gave evidence on behalf of Airservices about her interactions with Mr Crouch when she worked as Trainee Coordinator in the Air Services Learning Academy. Her witness statement recorded she received reports from the Learning Academy about the progress of the training review and conveyed that information to Mr Crouch, doing so approximately weekly. Evidence about the nature and content of those reports is not in evidence in these proceedings. Ms Crisara’s evidence is that she was also responsible for checking in on Mr Crouch’s well-being.[109]

Ms Crisara initially described her role to the Commission as being to assist the trainees with their training and be their support person.[110] Ms Crisara’s later oral evidence though showed this to be a significant overstatement about her role. Instead of being an important conduit for information back and forth she was, at best, an ineffectual messaging service. Her communication appears never to have moved in substance beyond relaying to Mr Crouch that the review was not finished and relaying to Mr Clarke that Mr Crouch was concerned about that fact. My impression of her oral evidence was that she did not have the position-power within Airservices to advocate for a quicker process or outcome and in any event she did not do so.[111]

The first time Mr Crouch sat the ASA 119 exam he failed it badly, achieving a mark of 45.9% against a pass mark of 70%.
Mr Crouch’s progress prior to the ASA 119 exams had some blemishes. In Phase 1 he had initially failed two out of twelve theoretical assessments, however he passed them on subsequent attempts. His scores for the Phase 1 theoretical units he passed on the first attempt ranged between 83% and 100% and the scores for the second attempt units were 70.2% and 90%. His performance with the practically based “progress evaluations” were mixed. His performance on Progress Evaluation 6 was equal to one trainee and better than seven others, out of a cohort of 12.[217]
Mr Crouch was not provided with constructive assistance by Mr Watson and Mr Boyd after failing the first ASA 119 exam and likely suffered as a result. Mr Watson was hostile, and his “assistance” was substandard. Mr Watson’s statements are summarised above, and amongst other things include telling Mr Crouch to go over his exam answers alone and did not providing Mr Crouch with specific feedback or a debrief.
The second time Mr Crouch sat the ASA 119 exam he failed it by a small margin, achieving 68.7%.
Mr Crouch considered the debrief given by Ms Thornley to be constructive assistance and this was the first constructive assistance he was given on the subject of the ASA 119 exam after he failed it for the first time.
After he was put on training review and asked why he thought he had failed the supplementary exam Mr Crouch told Airservices of his impressions of Ms Thornley’s debrief and that he wished he had been given it before the supplementary exam. He also told Airservices of Mr Watson’s hostility and the problems he had with the training support given to him after he failed the initial exam.

Recoursing of trainees is not uncommon; 57 trainees were recoursed from a total of 351 trainees between 2015 and 2022. Slightly under a third of those recoursed successfully completed their training.[218] At least one trainee in Mr Crouch’s cohort has been recoursed at that person’s request, after having failed a Phase 3 supplementary exam, appealing and “being recoursed a second time”.[219]
By August 2020 the proximity of Mr Crouch’s forthcoming wedding (in October 2020) and concerns about whether he could travel to Queensland to attend it or whether it would be cancelled, without a refund, were causing him anxiety. It is unclear when Mr Crouch first raised his concerns with Airservices.
While referring to Mr Crouch’s isolation during his COVID leave and the anxiety caused by whether he could attend his wedding, I accept these are exigencies that applied to many people in the community at that time. They are matters to be weighed but are not decisive of what should be done.

The failure by Airservices to provide constructive assistance and that Mr Crouch had missed two week’s training when he returned from COVID leave are each factors that lean firmly against the termination of his training as does the fact that recoursing is both not unusual as well as likely to produce good results in about 1 in 3 cases. The fact that he failed the supplementary exam by a very small margin leans in his favour, and heavily so when the failure to provide constructive assistance is taken into account.

In favour of the termination of his training is Mr Crouch’s training history which is patchy, including that he failed the same exam twice. Against that proposition is the fact that Mr Crouch argues his training results are not dissimilar to other trainees.

After considering all relevant matters it is appropriate that a further training opportunity be given to Mr Crouch by Airservices. Termination of his training would in the context of all the evidence be an outcome that is disproportionate to all the circumstances. The evidence does not disclose that there is a strong probability that Mr Crouch will fail if given a further opportunity. Termination of training would not take account of the fact that Mr Crouch has also suffered a significant penalty already from the two years it has taken to seek redress of his concerns from the time he failed the supplementary ASA 119 exam. Given the amount of time since his initial training there is likely no viable alternative other than to completely recourse him from the start. The non-exhaustive list of actions within Clause 50.3 (a), (b) and (c) provide guidance about how this may be done. For practical purposes I do not propose to be prescriptive about how this is to occur other than to say that he should be recoursed as soon as it is possible to do so.

I am concerned as well that Mr Crouch may have to wait several weeks or months before he can be recoursed to the next cohort of trainees to start training. Taking these matters into account, the appropriate actions to be taken are for Mr Crouch to be recoursed as an Ab Initio trainee into the next cohort of air traffic controller trainees to start training, and while awaiting that step, to be immediately returned to training and/or other useful and meaningful work.

For these reasons, the second question for determination is answered by follows;

Q2: If not, should Mr Crouch be recoursed and/or provided with other remedial training in accordance with Clause 50 of the 2020 Agreement to ensure that provision is complied with by Airservices?

A: Yes; Mr Crouch should be recoursed as an Ab Initio trainee into the next cohort of air traffic controller trainees to start training, and while awaiting that step, to be immediately returned to training and/or other useful and meaningful work.

CONCLUSION

For the reason set out above, the Questions for Determination are answered in the following manner;

Q1: Has Airservices Australia, complied with Clause 50 of the 2020 Agreement?;
A: No.

Q2: If not, should Mr Crouch be recoursed and/or provided with other remedial training in accordance with Clause 50 of the 2020 Agreement to ensure that provision is complied with by Airservices?
A: Yes; Mr Crouch should be recoursed as an Ab Initio trainee into the next cohort of air traffic controller trainees to start training, and while awaiting that step, to be immediately returned to training and/or other useful and meaningful work.

The dispute is determined accordingly.

ATTACHMENT

From the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2020-2023.

50. PERFORMANCE, CONDUCT, TERMINATION OF EMPLOYMENT

50.1. The primary focus of managing an employee whose performance and/or conduct is unsatisfactory should be to constructively assist the employee to improve their performance and/or conduct to a satisfactory level within a reasonable time, giving such feedback and assistance as is appropriate. Initial or ‘early intervention’ processes may include, but are not limited to, providing an employee with a course of training or other remediation. Note taking by the relevant manager during counselling or feedback does not constitute making this a formal process.

50.2. Procedural fairness

Airservices will adhere to the principles of procedural fairness when managing an employee in relation to suspected under-performance or misconduct. This means that Airservices will:

(a) promptly advise the employee of its concerns;
(b) provide enough time to the employee to be represented or supported in relation to the performance and conduct management process;
(c) provide enough opportunity for an employee to respond to the concerns raised by Airservices and to genuinely consider that response;
(d) Airservices will be unbiased in the consideration of the employee’s views and will genuinely consider the matters put by the employee or by their representative; and
(e) Take actions and issue sanctions that are proportional to the employee’s performance and conduct.

50.3. Formal Process

Where Airservices has serious concerns with an employee’s performance and/or conduct, Airservices will observe the principles of procedural fairness, advise the employee of its concerns in writing, setting out relevant particulars and arrange a meeting with the employee to discuss those concerns before taking any action against the employee. This process does not apply where the employee has engaged in serious misconduct that warrants summary dismissal. Without exhaustively stating the actions that Airservices may take to manage an employee’s poor performance and/or conduct, Airservices may:

(a) require the employee to undergo remedial training and/or counselling as appropriate to the circumstances of the case;
(b) give the employee a written warning appropriate to the circumstances of the case;
(c) set conditions with which the employee needs to comply;
(d) reduce the employee in classification for a period of time or indefinitely;

(e) terminate the employee’s employment.

SCHEDULE 1 – AB INITIOS

1. Definition

An Ab Initio is an employee who:

(a) does not hold, and has never held, an air traffic control licence; and
(b) is undergoing training provided by Airservices with the aim of becoming a licensed air traffic controller.

2. Application of this schedule

This Schedule 1 applies to Ab Initios only. To the extent of any inconsistency, this schedule applies to the exclusion of other parts of this Agreement.

3. Personal/carer’s leave

(a) Clause 37 of this Agreement does not apply to Ab Initios.
(b) Ab Initios will accrue personal/carer’s leave in accordance with Clause 38 of this Agreement.

4. Termination of employment

Airservices may terminate the employment of an Ab Initio if that Ab Initio fails to satisfactorily complete an essential component of their training.

COMMISSIONER

Appearances:

Mr S Hardy for the Applicant
Mr J Lovell for the Respondent

Hearing details:

5 April, 6 April, and 8 June 2022
Melbourne (by video)

[1] AE507712.

[2] AE423762.

[3] Exhibit R3, Witness Statement of Steven Clarke [77] – [79], Hearing Book 593 – 594.

[4] Exhibit A4, Witness Statement of Luke Crouch [2], Hearing Book 46.

[5] Ibid [7], Hearing Book 47.

[6] Ibid [9] – [10], Hearing Book 47.

[7] Ibid.

[8] Ibid [21], Hearing Book 52.

[9] Exhibit R3, Witness Statement of Stephen Clarke, Attachment SC – 03, Hearing Book 1003.

[10] Exhibit A4, Witness Statement of Luke Crouch [109], [112], Hearing Book 65.

[11] Exhibit A6, Applicant’s Outline of Closing Submissions [1].

[12] Exhibit R6, Respondent’s Outline of Submissions [1] – [2], Hearing Book 552.

[13] Ibid [22], Hearing Book 561.

[14] Ibid [28] – [30], Hearing Book 560 – 561.

[15] Ibid [31] – [36], Hearing Book 560 – 561.

[16] Exhibit A6, Applicant’s Outline of Closing Submissions [1].

[17] AMWU v Programmed Industrial Maintenance Pty Ltd[2021] FWCFB 3456, with reference to WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197] and King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173, [122]-[130].

[18] Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241, (2005) 138 IR 286, [96], per Kirby J; citing with approval Kucks v CSR (1996) 66 IR 182, 184, per Madgwick J; cited with approval in Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67, [16] and WorkPac Pty Ltd v Skene [2018] FCAFC 131, [197].

[19] AMWU v Berri[2017] FWCFB 3005; (2017) 268 IR 285, [62] (AMWU v Berri).

[20] Ibid [114].

[21] Australian Nursing and Midwifery Federation v Alfred Health, [2017] FWCFB 4420, [40] (ANMF v Alfred Health), with reference to AMWU v Berri[2017] FWCFB 3005; (2017) 268 IR 285, [114] (7) – (9).

[22] United Firefighters Union of Australia v Emergency Services Telecommunications Authority[2017] FWCFB 4537, [40] (UFU v ESTA).

[23] 149 CLR 337, 352 per Mason J.

[24] AMWU v Berri [114] (15); ANMF v Alfred Health [50]; UFU v ESTA [41].

[25] Exhibit R6, Respondent’s Outline of Submissions [22], Hearing Book 558 – 559.

[26] [2019] FWC 5369

[27] Ibid, [40], [53].

[28] Exhibit R6, Respondent’s Outline of Submissions [22], Hearing Book 558 – 559.

[29] Ibid [9], Hearing Book 553.

[30] Ibid [10], Hearing Book 553.

[31] Exhibit R1, Witness Statement of Marcus Knauer, Hearing Book 579.

[32] Ibid [11], Hearing Book 579.

[33] Ibid [13], Hearing Book 579.

[34] Ibid [12], Hearing Book 579.

[35] Exhibit R1, Attachment MK – 01, 5, Hearing Book 603.

[36] Exhibit R1, Witness Statement of Marcus Knauer [13], Hearing Book 579; Exhibit R1, Attachment MK-1, Hearing Book 611.

[37] Exhibit R1, Witness Statement of Marcus Knauer [10], Hearing Book 579.

[38] Ibid [13], Hearing Book 579.

[39] Exhibit R1, Attachment MK – 01, Hearing Book 611.

[40] Exhibit R1,Attachment MK – 02, Hearing Book 615.

[41] Exhibit R1, Witness Statement of Marcus Knauer [16], Hearing Book 580; Exhibit R1, Attachment MK – 03, Hearing Book 619.

[42] Exhibit R1, Witness Statement of Marcus Knauer [18], Hearing Book 580; Exhibit R1, Attachment MK – 04, Hearing Book 620.

[43] Exhibit R1, Attachment MK – 05, Hearing Book 642.

[44] Ibid, Hearing Book 646.

[45] Exhibit R1, Attachment MK – 06, Hearing Book 651.

[46] AE423762.

[47] Exhibit R2, Further Witness Statement of Marcus Knauer, Attachment MK – 07.

[48] AMWU v Berri [114] (15); with reference to Australian Liquor, Hospitality and Miscellaneous Workers Union v Prestige Property Services Pty Ltd (2006) 149 FCR 209; 148 IR 409 [44].

[49] See Exhibit R1, Attachments MK – 01 and MK – 02, Hearing Book 611 and 615.

[50] Exhibit A4, Attachment LC – 1, Hearing Book 73.

[51] Exhibit R6, Respondent’s Outline of Submissions, Hearing Book 560 – 561.

[52] Kucks v CSRLimited (1996) 66 IR 182, 184.

[53] Exhibit R5, Witness Statement of Frank Bosnich [6], see also [8], in which he states he has “completed numerous training reviews for underperforming trainees”, Hearing Book 572 – 573.

[54] Exhibit R3, Witness Statement of Steven Clarke [42] and Attachment SC – 06, Hearing Book 588, 825..

[55] Ibid [40].

[56] Transcript, PN 2628 - 2629

[57] [2019] FWC 5369 [40].

[58] Exhibit A1, Applicant’s Outline of Submissions, Hearing Book 58.

[59] Exhibit A6, Applicant’s Outline of Closing Submissions.

[60] Exhibit A4, Witness Statement of Luke Crouch [22], [48], Hearing Book 50, 54.

[61] Exhibit R5, Witness Statement of Frank Bosnich, Attachment FB-01, Hearing Book 598.

[62] Ibid.

[63]Ibid [22], Hearing Book 575.

[64] Exhibit R3, Witness Statement of Steven Clarke, Hearing Book 1041.

[65] Ibid, Hearing Book 1045.

[66] Exhibit A4, Witness Statement of Luke Crouch [22], Hearing Book 49.

[67] Ibid [42], Hearing Book 53.

[68] Exhibit R3, Witness Statement of Steven Clarke, Hearing Book 1040.

[69]Exhibit R5, Witness Statement of Frank Bosnich [11], Hearing Book 573.

[70] Ibid [12], Hearing Book 573.

[71] Exhibit A4, [58]; Hearing Book, p.55.

[72] Exhibit R3, Witness Statement of Steven Clarke Section 4.2.1, Hearing Book 1039.

[73] Exhibit A4, Witness Statement of Luke Crouch [12], Hearing Book 47.

[74] Ibid [22], Hearing Book 50.

[75] Ibid [48], Hearing Book 54.

[76] Ibid [15], Hearing Book 48.

[77] Ibid [16] – [17], Hearing Book 49.

[78] Ibid [18], Hearing Book 49.

[79] Ibid.

[80] Ibid [17], Hearing Book 49.

[81] Exhibit R3, Witness Statement of Steven Clarke [56], Hearing Book 590 – 591.

[82] Ibid [62], Hearing Book 591.

[83]Exhibit A5, Further Witness Statement of Luke Crouch [30], Hearing Book 528.

[84] Exhibit A4, Witness Statement of Luke Crouch [17], Hearing Book 49.

[85] Ibid [20], Hearing Book 49.

[86] Ibid [20] – [21], Hearing Book 49.

[87] Exhibit R3, Witness Statement of Steven Clarke [57], Hearing Book 591.

[88] Exhibit A4, Witness Statement of Luke Crouch [23], Hearing Book 50.

[89] Ibid [24] – [26], Hearing Book 50.

[90] Ibid [25], Hearing Book 50.

[91] Ibid [28], Hearing Book 50.

[92] Ibid [29], Hearing Book 51.

[93] Ibid [30], Hearing Book 51.

[94] Ibid.

[95] Ibid [33], Hearing Book 51.

[96] Ibid [31], Hearing Book 51.

[97] Ibid.

[98] Exhibit R3, Witness Statement of Steven Clarke [59], Hearing Book 591.

[99] Exhibit A4, Witness Statement of Luke Crouch [37], Hearing Book 53.

[100] Ibid [38] – [39], Hearing Book 53.

[101] Exhibit A5, Further Witness Statement of Luke Crouch [28], Hearing Book 528.

[102] Exhibit A4, Witness Statement of Luke Crouch [45], Hearing Book 54.

[103] Exhibit R10, Training Review Template.

[104] Exhibit R4, Witness Statement of Antoinette Crisara [9], Hearing Book 570.

[105] Ibid, [13], Hearing Book 570.

[106] Exhibit A1, Applicant’s Outline of Submissions [8], Hearing Book 35.

[107] Exhibit A4, Witness Statement of Luke Crouch [59], Hearing Book 56.

[108] Ibid [64], Hearing Book 58.

[109] Exhibit R4, Witness Statement of Antoinette Crisara [5] – [6], Hearing Book 569.

[110] Transcript, PN 982 – 983.

[111] See Transcript, PN 1126 – 1138.

[112] Exhibit R4, Witness Statement of Antoinette Crisara [12], Hearing Book 570.

[113] Ibid [7], Hearing Book 569.

[114] Transcript, PN 1145 – 1150; 1161 – 1171.

[115] Transcript, PN 1186 – 1188.

[116] Exhibit A4, Witness Statement of Luke Crouch Attachment LC – 13, Hearing Book 365.

[117] Exhibit R4, Witness Statement of Antoinette Crisara [11], Hearing Book 570.

[118] Transcript, PN 973 – 977.

[119] Transcript, PN 2329 – 2330; 2811 – 2812.

[120] Exhibit A4, Witness Statement of Luke Crouch [62], Hearing Book 57.

[121] Ibid, [63].

[122] Exhibit A5, [9] – [10].

[123] Exhibit R4, Witness Statement of Antoinette Crisara [23], Hearing Book 571.

[124] Ibid [23] – [24], Hearing Book 571.

[125] Exhibit A5, Further Witness Statement of Luke Crouch [9], Hearing Book 524.

[126] Ibid [10], Hearing Book524.

[127] Exhibit A4, Witness Statement of Luke Crouch [62], Hearing Book 58.

[128] Exhibit A5, Further Witness Statement of Luke Crouch [10], Hearing Book 524.

[129] Transcript, PN1027; PN1331 – 1332.

[130] Transcript, PN1027 – PN1035.

[131] Transcript, PN1334-1337.

[132]Exhibit R4, Witness Statement of Antoinette Crisara [7], Hearing Book 569.

[133]Exhibit A4, Witness Statement of Luke Crouch [61], [66], Hearing Book pp.58 – 58; Exhibit A4, Attachments LC – 25 and LC – 26, Hearing Book 441 – 445.

[134] Ibid, Attachment LC – 25, Hearing Book 441.

[135] Exhibit A4, Witness Statement of Luke Crouch [85], Hearing Book, 64; Exhibit A4, Attachment LC – 13, Hearing Book 354.

[136] Exhibit A4, LC – 13, Hearing Book 376.

[137] Ibid [86], Hearing Book 61.

[138] Ibid, Attachment LC – 19, Hearing Book 402.

[139] Exhibit R3, Witness Statement of Steven Clarke [67], Hearing Book 592.

[140] Ibid [68], Hearing Book 592.

[141] Transcript, PN 531, 539, 547.

[142] Exhibit R6, Respondent’s Outline of Submissions [47], [48], Hearing Book 565.

[143] Transcript, PN 207.

[144] Transcript, PN 858, 871, 872.

[145] Transcript, PN 1740 – 1741.

[146] Transcript, PN 1755 – 1756.

[147] Exhibit A4, Attachment LC – 13, Hearing Book 355.

[148] Transcript, PN 1544 – 1545.

[149] Transcript, PN 523.

[150] Transcript, PN 1467 – 1473.

[151] Transcript, PN 1485.

[152]Exhibit R5, Witness Statement of Frank Bosnich [17], Hearing Book 574.

[153] Ibid [12] – [13], Hearing Book 573.

[154] Exhibit A5, Further Witness Statement of Luke Crouch [12], Hearing Book 524.

[155] Exhibit R5, Witness Statement of Frank Bosnich [16], Hearing Book 574.

[156] Ibid [18] – [19], Hearing Book 574.

[157] Ibid [20], Hearing Book 575.

[158] Ibid [22], Hearing Book 575.

[159] Ibid, Hearing Book 575 – 576.

[160] Transcript, PN 1856 – 1865.

[161] Exhibit A4, Witness Statement of Luke Crouch [92], Hearing Book 62.

[162] Exhibit A4, Witness Statement of Luke Crouch [93], Hearing Book 62; Exhibit A4, Attachment LC – 28 and LC – 29, Hearing Book 474 – 476.

[163] Exhibit A4, Witness Statement of Luke Crouch [95], Hearing Book 62.

[164] Exhibit A4, Witness Statement of Luke Crouch [96], Hearing Book 62.

[165] Exhibit R5, Witness Statement of Frank Bosnich [30], Hearing Book 576.

[166] Ibid [34], Hearing Book 577.

[167] Ibid [31], Hearing Book 576.

[168] Exhibit A4, Witness Statement of Luke Crouch [100], Hearing Book 63.

[169] Exhibit R5, Witness Statement of Frank Bosnich [37], Hearing Book 577.

[170] Exhibit A5, Further Witness Statement of Luke Crouch [25], Hearing Book 527.

[171] Exhibit R4, Witness Statement of Antoinette Crisara [17] – [19], Hearing Book 570 – 571.

[172] Transcript, PN 1286 – 1287.

[173] Exhibit R3, Witness Statement of Steven Clarke, Hearing Book 593.

[174] Exhibit R3, Witness Statement of Steven Clarke [69], Hearing Book 593. Exhibit R3, Attachment SC – 14, Hearing Book 1047.

[175] Exhibit R3, Attachment SC – 14, Hearing Book 1047 – 1050.

[176] Exhibit A4, Attachment LC – 28, Hearing Book 475.

[177] Transcript, PN 678 – 687.

[178]Exhibit A4, Attachment LC – 19, Hearing Book 387.

[179] Exhibit A4, Witness Statement of Luke Crouch [124], Hearing Book 67.

[180] Transcript, PN 549 – 551, 815

[181] Exhibit A4, Witness Statement of Luke Crouch [125], Hearing Book 67.

[182] Exhibit A4, Attachment LC – 2a, Hearing Book 157.

[183] Exhibit A4, Attachment LC – 3, Hearing Book 302.

[184] Exhibit A4, Attachment LC – 23, Hearing Book 435 – 436.

[185]Exhibit R3, Witness Statement of Steven Clarke [55], Hearing Book 590.

[186] Transcript, PN 584.

[187] Transcript, PN 583 – 589.

[188] Transcript, PN 523.

[189] Exhibit A4, Witness Statement of Luke Crouch [129], Hearing Book 68.

[190] Exhibit R3, Attachment SC – 15, Hearing Book 1051; Transcript PN 694 – 703.

[191] Transcript, PN 702 – 709.

[192] [2017] FWCFB 4187, [31]; with reference to Tamayo v Alsco Linen Service Pty Ltd, Print P1859, 25 February 1997.

[193] [2018] FWCFB 3989.

[194] Ibid.

[195] Exhibit A6, Applicant’s Outline of Closing Submissions.

[196] [2019] FWC 5369, [52] – [53].

[197] Exhibit R3, Attachments SC – 9, SC – 10 and SC – 11, Hearing Book 916, 919 and 926.

[198] Exhibit R3, Attachment SC – 10, Hearing Book 928.

[199] Exhibit R3, Witness Statement of Steven Clarke [58], Hearing Book 591.

[200] Ibid [60], Hearing Book 591.

[201] Transcript, PN 635 – 643.

[202] Exhibit A4, Witness Statement of Luke Crouch [26], Hearing Book 50.

[203] Exhibit R3, Attachment SC – 10, Hearing Book 929.

[204]Exhibit R3, Attachments SC – 11, Hearing Book 928.

[205] Exhibit A4, Witness Statement of Luke Crouch, Hearing Book 50.

[206] Exhibit A4, Witness Statement of Luke Crouch, Hearing Book 55.

[207] Transcript, PN 682 – 687.

[208] Exhibit A4, Witness Statement of Luke Crouch [58], Hearing Book 55 – 56.

[209] Exhibit R4, Witness Statement of Antoinette Crisara [13], Hearing Book 573.

[210] Ibid [9], Hearing Book 573.

[211] Transcript, PN 682 – 687.

[212] Exhibit A4, [60]; Hearing Book, p.56.

[213] Email from Ashurst, solicitors for Airservices, 16 June 2022.

[214] Ibid.

[215] Email from K & L Gates, solicitors for Mr Crouch, 1 July 2022.

[216]Exhibit A4, Witness Statement of Luke Crouch [20], Hearing Book 49.

[217] Ibid [9] – [10], [40] – [43], Hearing Book 47, 53.

[218] Exhibit R3, Annexure SC – 15, Hearing Book 1051.

[219] Exhibit A4, Witness Statement of Luke Crouch [65], Hearing Book 58.

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