Stephen Hanson
[2021] FWC 2200
•22 APRIL 2021
| [2021] FWC 2200 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Stephen Hanson
(AB2019/196)
DEPUTY PRESIDENT BOYCE | SYDNEY, 22 APRIL 2021 |
Application for an FWC order to stop bullying – four core incidents of alleged bullying – incidents concerned safety and disciplinary processes, and issue of media releases concerning Applicant – unreasonable behaviour found – unreasonable behaviour concerning not only the four incidents but also safety and disciplinary processes associated with same – Commission satisfied of bullying claims – proceeding adjourned to determine appropriate Orders.
Overview
[1] Mr Stephen Hanson (Applicant / Mr Hanson) has filed a Form F72 anti-bullying application (Anti-Bullying Application) with the Fair Work Commission (Commission) seeking relief (in the form of stop-bullying orders) under Part 6-4B of the Fair Work Act 2009 (FW Act).
[2] The Respondents to the Anti-Bullying Application are:
(a) Regional Express Holdings Ltd (REX), Mr Hanson’s employer;
(b) Mr Mark Burgess, REX Deputy General Manager – Engineering (Mr Burgess);
(c) Ms Maree Penglis, REX Human Resources Adviser (Ms Penglis); and
(d) Mr Png Yeow Tat, REX General Manager – Engineering (Mr Png).
[3] The Anti-Bullying Application was amended, with my leave, on 3 June 2019. These amendments were not opposed by the Respondents.
[4] Conciliation conferences were held with the parties in an effort to resolve the proceedings by way of agreement. Ultimately, on 3 July 2019, it became apparent that resolution via conciliation would not occur, and directions were issued to program the matter for hearing. The directions were subsequently amended a number of times at the request of the parties.
[5] A hearing was conducted over six days in Sydney.
[6] During the hearing, Mr Hanson was represented by Ms Lucy Saunders of counsel (instructed by Mr Sean Morgan, Industrial / Legal Officer, of the Australian Licensed Aircraft Engineers Association (ALAEA)). The Respondents were collectively represented by Mr Dilan Mahendra of counsel (instructed by Clayton Utz Lawyers). Permission for all parties to be legally represented was not opposed, and I granted permission pursuant to s.596 of the FW Act for all parties to be legally represented having regard to the complexity of the matter, and my view as to the more efficient conduct of the hearing with the parties being legally represented.
[7] The Respondents oppose the Anti-Bullying Application, including any relief sought by Mr Hanson pursuant to same. In this regard, the Respondents rely upon three core contentions:
(a) there is no jurisdictional basis for Mr Hanson to make an application under s.789FF of the Fair Work Act 2009 (FW Act), in that he does not hold a “reasonable belief” that he has been bullied at work as required by s.789FC of the FW Act;
(b) the alleged bullying conduct complained of by Mr Hanson constitutes reasonable management action carried out in a reasonable manner, meaning that the Respondents have not been acting unreasonably towards Mr Hanson (cf. s.789FD(a) of the FW Act); and
(c) each of the individually named Respondents “were removed from dealing with Mr Hanson”. It flows from this that it cannot be contended that REX has permitted the individually named Respondents to have acted unreasonably towards Mr Hanson. It equally follows that there is no evidence that an individual or group of individuals has “repeatedly” behaved unreasonably towards Mr Hanson within the meaning of s.789FD(1) of the FW Act. 1
[8] I note that there is no dispute before this Commission that Mr Hanson is a “worker” within the meaning of s.789FC(2) of the FW Act, or that REX is a constitutionally covered business as defined by s.789FD(3).
ALAEA’s dispute application resolved
[9] The Bullying Application was heard together with the ALAEA’s application to resolve a dispute (Dispute Application) under the Regional Express Aircraft Engineers Agreement 2018-2021 (REX EBA).
[10] I issued my decision dismissing the Dispute Application on 29 July 2020 in The Australian Licensed Aircraft Engineers’ Association v Regional Express Holdings. 2
[11] Whilst the Dispute Application concerned the construction of the REX EBA, the core aspect of the dispute was whether certain actions taken by REX against Mr Hanson were “disciplinary”. If a finding was made that such actions were disciplinary, the ALAEA asserted that in the events that have happened, REX acted contrary to the terms of clause 35 of the Agreement. My ultimate findings, leading to the dismissal of the Dispute Application, were:
“[21] Despite the real concerns of the ALAEA and Mr Hanson as to the terms of the File Note having been intentionally drafted by REX so as to cast Mr Hanson in an unfavourable light, REX’s unequivocal statement that the File Note does not equate to or impose disciplinary action means that the File Note cannot be used as reference point or foundation for future decisions by REX as to disciplinary action against Mr Hanson, and/or the termination of his employment.
[22] The manner in which the Investigation has been conducted, and the contents of the File Note, are to be considered as part of Mr Hanson’s separate bullying at work claim against REX (and other individually named Respondents) under Part 6-4B of the Act. Whether the suspension of Mr Hanson’s company certification authority is indeed a requisite (and reasonable) response by REX to its operational and regulatory obligations will also be considered as part of Mr Hanson’s bullying at work claim”. 3
Respondents’ Recusal Application dismissed
[12] On 20 August 2020, the Respondents filed a Form F1 (Recusal Application). By way of that application, the Respondents sought an order that I recuse myself from further dealing with Mr Hanson’s Anti-Bullying Application.
[13] I issued my decision dismissing the Recusal Application on 22 February 2021 in Stephen Hanson v Regional Express Holdings Ltd (Recusal Decision). 4 I note that an appeal has been filed by the Respondents in respect of the Recusal Decision. I equally note that on appeal, allegations of apprehended bias are to be dealt with first, before any substantive appeal (if any) that might arise from this decision can occur.5
The parties
[14] Mr Hanson has been employed by REX since February 2006 in the role of Licensed Aircraft Maintenance Engineer (LAME), based at Sydney’s domestic airport. He is a member of the ALAEA. In or around May 2007, Mr Hanson was appointed to the position of B1 Category LAME. The terms and conditions of Mr Hanson’s employment are governed by the REX EBA, and REX’s policies and procedures. 6
[15] REX is the employer of Mr Hanson. It is an Australian regional airline, and provides scheduled air services across New South Wales, South Australia, Victoria, Queensland, Tasmania and Western Australia. Relevantly, at the time these proceedings were heard, REX operated a fleet of approximately 60 SAAB 340 aircraft, and had around 180 employees in its engineering department.
[16] Mr Png is the REX General Manager – Engineering. He is based in Melbourne, Victoria, and has been with REX since June 2007. He is a member of the REX Engineering Management Committee, and a member of the REX Management Committee. Mr Png is responsible for the overall oversight of REX’s engineering operations. He has been appointed by the Civil Aviation Safety Authority (CASA) as the Accountable Manager for the REX’s engineering operations (i.e. Mr Png is the contact for CASA, and has responsibility to CASA in relation to REX’s engineering operations).
[17] Mr Burgess reports to Mr Png, and thus has regular contact with him. He is the REX Deputy General Manager – Engineering. He is based in Adelaide, South Australia, and has been employed by REX since its inception in 2002 (in various roles). Mr Burgess, like Mr Png, is a member of the REX Engineering Management Committee. Mr Burgess’ evidence primarily concerns the Second Incident and Third Incident.
[18] Ms Penglis is a REX Human Resources Adviser, based in Sydney, New South Wales. She has been employed by REX since 21 June 2004 (in the roles of Human Resources Manager and Human Resources Advisor). Ms Penglis was not involved in the Fourth Incident, and her role in the First to Third Incidents primarily involved advising and assisting her managerial colleagues from a human resources perspective.
Evidence
[19] The Applicant relied upon the following witness evidence in these proceedings:
a) Witness Statement of Mr Stephen Hanson;
b) Reply Witness Statement of Mr Stephen Hanson;
c) Witness Statement of Stephen Re;
d) Reply Witness Statement of Stephen Re;
e) Witness Statement of Glynn Sowter; and
f) Reply Witness Statement of Glynn Sowter.
[20] The Respondents relied upon the following witness evidence in these proceedings:
a) Witness Statement of Ms Maree Penglis;
b) Witness Statement of Ms Paula Tran;
c) Witness Statement of Mr Mark Burgess;
d) Witness Statement of Mr Ryan Kendall; and
e) Witness Statement of Mr Png Yeow Tat.
Legislation and case law
[21] Sections 789FD and 789FF of the Act read:
789FD. When is a worker bullied at work?
(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally‑covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:
(a) the person is:
(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or
(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;
then the business or undertaking is a constitutionally‑covered business.
789FF. FWC may make orders to stop bullying
(1) If:
(a) a worker has made an application under section 789FC; and
(b) the FWC is satisfied that:
(i) the worker has been bullied at work by an individual or a group of individuals; and
(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;
then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.
(2) In considering the terms of an order, the FWC must take into account:
(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body—those outcomes; and
(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes—that procedure; and
(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes—those outcomes; and
(d) any matters that the FWC considers relevant.
[22] The Commission’s powers under s.789FF(1) are of wide import insofar as the FW Act provides that the Commission may make any order that it considers appropriate. However, the power to make such an order is conditional upon the Commission first being satisfied that the worker has been “bullied at work”. As Vice President Hatcher stated in Application by Mac: 7
“[75] It can be seen that s.789FF establishes three prerequisites to the exercise of the power to make anti-bullying orders:
(1) A worker must have made an application under s.789FC.
(2) The Commission must be satisfied that the applicant worker has been bullied at work by an individual or group of individuals.
(3) The Commission must be satisfied that there is a risk that the applicant worker will continue to be bullied at work by the individual or group of individuals.” 8
[23] There are several aspects of ss.789FD and 789FF that have been considered by case law.
[24] Firstly, the test imposed is an objective one, with the measure of “reasonability” being a question of fact. 9 In other words, the impugned behaviour will be caught by s.789FD if a reasonable person (having regard to all the facts and circumstances) may consider it to be unreasonable.10
[25] Secondly, the word “repeatedly” must be applied, meaning that a single incidence of unreasonable behaviour will fall outside the scope of the section. 11 Beyond a single incidence, however, there is no specific number of incidences required to meet the requirement for “repeated” (unreasonable) behaviour.12
[26] Thirdly, the impugned behaviour must also “create a risk to the health and safety”. In this regard, in Re SB, 13 Commissioner Hampton stated:
“[44] The unreasonable behaviour must also create a risk to health and safety. Therefore there must be a causal link between the behaviour and the risk to health and safety. Cases on causation in other contexts suggest that the behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk viewed in a common sense and practical way. This would seem to be equally applicable here.
[45] A risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety. The ordinary meaning of ‘risk’ is exposure to the chance of injury or loss. In the sense used in this provision, the risk must also be real and not simply conceptual”. 14
[27] Fourthly, the worker must have been bullied “at work”. 15
[28] Fifthly, in relation to s 789FF(1), as the Full Bench in Mekuria v Mecca Brands Pty Ltd said: 16
“[29] Apart from the requirement for an application to have been made under s.789FC, s.789FF(1) establishes two prerequisites: first, the Commission must be satisfied that the worker has been bullied at work by an individual or group of individuals and, second, the Commission must be satisfied that there is a risk that the worker will continue to be bullied at work by the individual or group. The use of the definite article in s 789FF(1)(b)(ii) in connection with the individual or group of individuals indicates that they must be the same as the individual or group of individuals considered for the purpose of s 789FF(1)(b)(i). That is, it is not sufficient to satisfy the second condition in s 789FF(1)(b)(ii) by demonstrating that there is a risk of being bullied at work by individuals other than those who have been found to have engaged in bullying pursuant to s 789FF(1)(b)(i).” 17
[29] Sixthly, even if a worker is able to establish the impugned behaviour satisfies the criteria in sub-s.789FD(1) of the Act, sub-s.789(2) of the Act operates to qualify the impugned behaviour if that behaviour is “reasonable management action carried out in a reasonable manner”. As to the operation of sub-s.789(2), again I rely on Commissioner Hampton’s considerations in Re SB:
“[47] Section 789FD(2) of the FW Act is not so much an “exclusion” but a qualification which reinforces that bullying conduct must of itself be unreasonable. It also emphasises the right of management to take reasonable management action in the workplace.
[48]The Explanatory Memorandum refers to management decision and decisions about how work is to be carried out. This suggests that the term may be required to be given a wide meaning under s.789FD(2) and that the Legislature intended everyday actions to effectively direct and control the way work is carried out to be covered by the exclusion.
[49] Determining whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time. Without limiting that assessment, the considerations might include:
• the circumstances that led to and created the need for the management action to be taken;
• the circumstances while the management action was being taken; and
• the consequences that flowed from the management action.
[50] The specific ‘attributes and circumstances’ of the situation including the emotional state and psychological health of the worker involved may also be relevant.
[51] The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’. In general terms this is likely to mean that:
• management actions do not need to be perfect or ideal to be considered reasonable;
• a course of action may still be ‘reasonable action’ even if particular steps are not;
• to be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’;
• any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it; and
• consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.
[52] For the circumstances in s.789FD(2) of the FW Act to apply, the management action must also be carried out in a ‘reasonable manner’. Consistent with the approach above, what is ‘reasonable’ is a question of fact and the test is an objective one.
[53] Whether the management action was taken in a reasonable manner may depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters.
[54] All of the requirements of s.789FD(1) must be read together. In terms of the issues in dispute in this case, this means that the Commission must consider whether an individual or group of individuals have repeatedly behaved unreasonably towards the applicant and whether that behaviour has created a risk to health and safety. A positive finding on each of these elements, and if appropriate, a finding that the circumstances contemplated in s.789FD(2) of the FW Act do not apply to the behaviour, must be made for the Commission to find that the applicant worker has been bullied at work”. 18
[30] The reasoning of the Full Bench in Blagojevic v AGL Macquarie Pty Ltd; Mitchell Sears 19 is also relevant:
“[19] The expression ‘management action’ in s.789FD(2) is not confined only to managerial decisions but encompasses a wider range of conduct or behaviour which affects an employee, including such things as performance and disciplinary matters, the allocation of work and the way in which work is to be carried out. Placing an employee on a PIP clearly falls within the scope of the expression ‘management action’.
[20] To determine whether the action constitutes “reasonable management action” it is necessary to undertake “an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time”. The test for reasonable management action is whether the “management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’.”
[21] The specific question of whether placing a worker on a PIP constituted “reasonable management action” for the purposes of s.789FD(2) of the Act, was considered by Vice President Hatcher in Mac v Bank of Queensland Limited. In that case, the applicant, Ms Mac, argued that the managerial decision to impose, and continue to impose, a PIP on her, was not reasonable management action because the shortcomings in her performance had not been sufficiently serious to justify that decision being made. In assessing the reasonableness of this managerial decision, the Vice President did not attempt to form his own judgment as to whether Ms Mac’s overall performance was satisfactory, explaining:
‘... I do not consider that an assessment of whether the imposition of the PIP on Ms Mac was unreasonable requires the Commission to engage in the process of attempting to form its own judgment as to whether her overall performance was satisfactory or not and to substitute its judgment for that of the relevant BOQ managers and supervisors. Even if a different and better opinion of Ms Mac’s work performance could legitimately be formed on the evidence before me, that would not be sufficient to show that the decision to introduce the PIP was unreasonable. What is necessary is for Ms Mac to demonstrate that the decision to introduce the PIP lacked any evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in all the circumstances.’ (emphasis added)
[22] In the Decision subject to appeal the Commissioner agreed with the approach taken by the Vice President and applied it to the matter before him, noting:
‘It follows that I do not need to form my own judgment as to whether Mr Blagojevic’s overall performance was satisfactory or not. The primary issues for determination are whether the decision to introduce the PIP or revise it lacked any evident and intelligible justification, and whether the introduction and implementation of the initial and revised PIP was carried out in a reasonable manner.’
[23] It is convenient to note here that Mr Blagojevic did not challenge this aspect of the Commissioner’s decision; nor did he contend that Mac v BOQ was wrongly decided. For our part, we agree with the observations of Vice President Hatcher set out at [21] above.” 20
[31] Finally, the observations of Vice President Hatcher in Mac v Bank of Queensland Ltd 21 as to examples of conduct “which one might expect to find in the course of repeated unreasonable behaviour that constituted bullying at work” are pertinent:
“intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination.” 22
All of the circumstances of the case
[32] In view of the authorities set out in this decision, in making my findings as to liability in this decision, I must consider all of the circumstances of the case. In doing so, it is not only appropriate, but necessary, that I consider the application of the civil aviation safety legislative and regulatory requirements to the events that have happened, including to the extent that such legislative and regulatory requirements interact with the processes adopted, and outcomes applied, by the Respondents in relation to Mr Hanson.
Civil Aviation Act 1988
[33] Section 3A of the Civil Aviation Act 1988 (CAA) states that its main object is “to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents.”
[34] Section 98 of the CAA enables the making of regulations (not inconsistent with the CAA), whilst sub-section 98(5A)(a) of the CAA empowers CASA to issue legislative instruments pursuant to the CASR in relation to “matters affecting the safe navigation and operation, or the maintenance, of aircraft”.
Civil Aviation Safety Regulations 1998
[35] REX is an Approved Maintenance Organisation (AMO) for the purposes of Part 145 of the Civil Aviation Safety Regulations 1998 (Cth) (CASR). In short, this provides REX with the ability to, amongst other things, self-certify aircraft (including aircraft maintenance undertaken or performed by REX employees), provide relevant training to LAMEs, and grant licences to LAMEs.
Part 145 Manual of Standards (MOS) – legislative instrument
[36] CASA is responsible for establishing procedures detailing how “applications” and “approvals” for an AMO under Part 145 of the CASR are managed and maintained. For the purposes of s.98(5A) of the CAA, and Part 145 of the CASR, r.145.005 and r.145.015 of the CASR enable CASA to issue a Manual of Standards (in the form of a legislative instrument) for the purposes of Part 145 of the CASR that “specifies matters affecting the maintenance or airworthiness of aircraft”, including in relation to a “safety management system”. 23 Relevantly, the prescribed ‘legislative instrument’ in this regard is titled the “Part 145 Manual of Standards (MOS)” (MOS145).24
Acceptable means of compliance program
[37] REX obtains and maintains its AMO status and privileges, via its development and use of an Acceptable Means of Compliance (AMC) program (specific to REX) that fulfils the requirements of the CASR for the issuing of certificates, licences, approvals, or other authorisations. As I understand it, the requirements for an AMC are developed by CASA, including in the form of guidelines for the creation by REX of its own maintenance organisation “Exposition”. However, this Exposition is:
(a) complementary to the requirements of the CAA and the CASR (including Part 145 of the CASR, and the MOS145 made under the CASR); and
(b) does not otherwise supersede or replace associated legislative requirements.
[38] An AMO’s Exposition is a document that an AMO (in this case REX), must follow and comply with (in that it is a document relied upon by CASA to approve the relevant organisation as an AMO). Compliance with the Exposition equally ensures on-going compliance by the AMO with legislative requirements and obligations (including under the CAA, the CASR, and the MOS145). 25
The requirements of the MOS145
[39] The MOS145 sets out the requirements that ‘must’ be met by REX to perform maintenance of aircraft and aeronautical products, and provide training and assessment to relevant REX employees. 26 Relevantly, the MOS145 sets out:
(a) Personnel requirements in respect of:
(i) the appointment (by REX as AMO) of an “accountable manager” (in this case, Mr Png), who “must”, amongst other things:
• establish and promote safety and quality management policies;
• have and maintain an understanding of MOS145 and REX’s Exposition (that includes safety and quality policy, maintenance procedures, and a safety management system); and
• ensure that REX, as an AMO, complies with its Exposition, its approval rating, and the CASR. 27
(ii) the nomination (by REX as AMO) of “responsible manager/s”, who “must ensure” that, for his or her area of responsibility, REX complies with the requirements of MOS145 and REX’s Exposition;
(iii) the nomination (by Mr Png as accountable manager) of a “quality manager”, who has the responsibility and authority for issuing and revoking certification authorisations on behalf of REX; and
(iv) the nomination (by Mr Png as accountable manager) of a “safety manager”, who has the responsibility for the “safety management system” required under the MOS145. 28
(b) The requirement for REX (as AMO) to “ensure” that in specifying standards (including, but not limited to, qualifications and experience) relevant individuals (such as LAMEs) have an understanding of the application of “human factors” and “human performance” issues appropriate to that individuals function at REX. 29 “Human factor principles” in relation to aircraft maintenance, mean principles that deal with the interaction between human performance and maintenance system components that are applied to improve the “safety of air navigation”.30 “Human performance”, in relation to aircraft maintenance, means the human capabilities and limitations that have an effect upon the “safety of air navigation”, such as fitness, health, stress, fatigue, drugs and alcohol, and work environment.31
(c) The requirement for REX (as AMO) to have, and properly follow, an internal occurrence reporting, investigation and feedback system which utilises “Just Culture” reporting principles. 32
(d) The requirement for REX (as AMO) to have, and properly follow, safety and quality policies which:
(i) show safety as the overriding consideration at all times;
(ii) encourage employees to report to the AMO maintenance-related incidents and errors; and
(iii) require “all employees” to comply with quality and safety standards and procedures, and cooperate with requests for independent quality auditors relating to maintenance services that employees undertake. 33
(e) The requirement for REX (as AMO) to have procedures that “ensure” good maintenance practices and compliance with MOS145, which include the taking into account of “human factors principles” and “human performance limitations”. 34
(f) The requirement for REX (as AMO) to have, and properly follow (or comply with), a REX specific written safety management system, a safety management risk plan, a safety assurance system, a safety promotion system, and an internal reporting system and associated investigation process (the latter integrated into REX’s safety assurance system). 35
REX’s Group Safety Management System Manual
[40] Mr Burgess describes the REX Group Safety Management System Manual (GSMSM) as follows:
“The REX Group Safety Management System Manual (GSMSM) is a document that helps manage safety with regards to the organisational structure, accountabilities, policies, procedures and measurement of associated key performance indicators. This includes Operational Safety, Security, Quality, Work Health and Safety and the Environment.
Chapter 5 of the GSMSM prescribes the process for investigating reported occurrences raised by a reporter through the Safety Management System (SMS). The level of investigation is determined by the occurrence risk rating and all maintenance errors are investigated.
Paragraph 4.7.3 of the GSMSM sets out guidelines for the assignment and priority of investigations into reported occurrences. In broad terms, the guidelines in that paragraph provide that the level of risk from a reported occurrence will dictate the priority and extent of any investigation into the occurrence. That is, higher risk occurrences merit faster and more thorough investigations.” 36
[41] The GSMSM forms part of REX’s overall Exposition to qualify and operate as an AMO, and is thus a document drafted for the purposes of compliance with the CAA, the CASR, and the MOS145. It follows that the GSMSM is a document that must be followed and adhered to by REX at all times, especially in relation to those aspects of the MOS145 that require compliance, and/or direct REX to “ensure” certain obligations, procedures or standards are complied with.
[42] It is equally apparent that the GSMSM is to be read in conjunction with other pertinent or applicable legislation, regulations, the Exposition, manuals, policies, and operations notices/bulletins. 37 In my view, it is not contentious that the GSMSM is a document to be read in conjunction with the requirements of the REX EBA. In this regard, whilst there may be some circumstances of direct or indirect conflict between the GSMSM (including the procedures under same) and the REX EBA (including the procedures under same), the proper approach where such circumstances of conflict arise, is to reconcile the respective provisions so as to enable compliance with both.38
[43] Further to the foregoing paragraph, given that REX has the ability under the GSMSM to suspend relevant licences or authorisations (so that particular work is not performed), and/or stand down an employee/s pending the completion of a safety investigation, or the proper consideration of a safety report, 39 it is extremely difficult to envisage a situation where REX would seek to avail itself of the processes under clauses 35 or 36 of the REX EBA prior to a safety investigation or report in relation to an accident or incident (as defined in the GSMSM and/or the REX EBA) being finalised. This is not a question of whether or not the GSMSM or the REX EBA expressly state that this should occur, rather it is a question of a fair reading of the GSMSM (especially by reference to “Just Culture” principles), and ensuring compliance with same. Indeed, for REX to travel down the path of a process under clauses 35 or 36 of the REX EBA, prior to a safety report being finalised, or at the same time a safety investigation is open, can only likely interfere, or be in direct conflict, with REX’s obligations under its GSMSM. Alternatively, if REX was to comply with the requirements of the GSMSM prior to commencing a process under clauses 35 or 36 of the REX EBA, REX would not only have the benefit of the relevant closed safety investigation and report when commencing its process under the REX EBA, but would also have already complied with the requirements of the GSMSM (thus ensuring that compliance with both the GSMSM and the REX EBA has or can occur).40
[44] Relevant extracts from the REX GSMSM, in relation to safety and investigation matters read:
“5 Investigation Policy & Procedures
5.1 Investigation Policy
The focus of accident investigations should therefore be directed towards effective risk control. With the investigation directed away from looking for a guilty party and towards effective risk mitigation, cooperation will be fostered among those involved in the accident, facilitating the discovery of the underlying causes. The short-term expediency of finding someone to blame is detrimental to the long-term goal of preventing future accidents.
In line with our Safety Policy, the principles of ‘Just Culture’ apply to our investigation policy and procedures. The purpose of conducting investigations and trend analysis is to identify and rectify possible procedural and other deficiencies within the organisation; it is not an exercise to apportion blame to any individual or group.
Investigations are carried out such that every attempt is made to understand the systemic or underlying causes that contributed to the occurrence and identify and implement corrective actions to mitigate against recurrence.
All occurrence reports are reviewed by Group Safety in the DSR and risk rated. The decision to commence an investigation as well as scope and depth of investigations will depend on the risk associated with the occurrence.
The maximum timeframe for the completion of internal safety investigations is nominally set to three (3) months, however the actual timeframes for the completion of investigations will of course depend on the nature and complexity of the investigation being conducted and the Safety Group resources available at the time. It is our objective to complete internal safety investigations in the shortest possible time.
If for any reason an assigned investigator is unable to complete an investigation within the maximum three (3) month period, an extension may be requested by contacting Group Safety and requesting an extension.
Group Safety will review each request on a case by case basis and in association with the assigned investigator(s), may extend the due date to a maximum period of three (3) months.
Any extension request must include the reason for the extension.
All extension requests will be entered into the SMS database investigation log and monitored by Group Safety.” 41
…
“5.3 Investigation Process
…
“When considering human error, an understanding of the conditions that may have affected human performance or decision-making is required. These unsafe conditions may be indicative of systemic hazards that put the entire system at risk. Consistent with the systems approach to safety, an integrated approach to safety investigations considers all aspects that may have contributed to unsafe behaviour or created unsafe conditions.” 42
…
Level 2 Investigations
Level 2 Investigations are conducted:
1. For events that pose a Moderate risk; or
2. Considered for events that pose a Low risk (refer Chapter 4.7.3).
They can be completed by SMS Investigators who are considered to be subject matter experts in the area concerned. Level 2 investigations may also be conducted by a member of the Human Factors Group. Timeframes for completion for Level 2 investigations are decided according to the assigned risk level and will be indicated by the on-line occurrence reporting system.
NOTE
Expected timeframes for all investigations may be changed at the direction of the relevant Accountable Manager to suit particular circumstances associated with the investigation.
The process for the conduct of Level 2 investigations is as follows:
1. The report is risk rated during the DSR. It is assigned an Event Cateory (for trend analysis) and assigned to a Lead Investigator. This Lead Investigator, where possible will be a subject matter expert or have sufficient knowledge and experience to complete the investigation. Notification is sent to the Investigator by email, allowing the Investigator to login to the on-line SMS interface.
2. The Investigator then uses the SMS interface to input information pertinent to the investigation. The required fields to be filled out include:
• The investigation actions taken;
- Corrective and preventative actions taken (these actions must be taken and not pledged to be taken); and
- A brief summary of the report outcomes which will be sent to the reporter.
Any supporting documentation must be included in the Investigation Log.
Once these sections are filled out by the Investigator, the report is returned to the Group Safety for review prior to closure of the investigation.” 43
REX’s Maintenance Error/Incident Procedure (MEIP)
[45] The foregoing conclusions are equally consistent with REX’s Maintenance Error/Incident Procedure (MEIP). In this regard, were a maintenance error event (ME Event) is deemed to have occurred, REX’s is required to apply and comply with its MEIP (i.e. it is to be used as a guide to implementing REX’s GSMSM). 44 Mr Png accepts that the MEIP must be followed by REX in relation to all ME Events,45 and that before any disciplinary action is to be considered in relation to an ME Event, a finding must first have been made in an SMS investigation as to “wilful breach” (which is then referred to Mr Png).46
[46] In relation to the MEIP, the following requirements apply:
(a) Where a ME Event occurs, a Safety Management System (SMS) Report should be made, and an SMS investigation will ensue.
(b) The SMS investigation is to be conducted or led by a subject matter specialist (normally a line maintenance supervisor).
(c) To investigate a maintenance error, a Maintenance Error Decision Aid (MEDA) may be used to produce a MEDA report. However, in relation to MEDAs, and their use, the following applies:
(i) an MEDA can only be accessed and used as part of an “open” SMS investigation;
(ii) the only ME Events that “require” an MEDA report are those with a moderate, high or extremely high risk rating. ME Events that have a lower risk rating do not require an MEDA report, but the General Manager Engineering (Mr Png) may request that an MEDA report be made;
(iii) during an SMS investigation using an MEDA, the line maintenance supervisor (subject matter specialist, lead investigator), will undertake a review of the ME Eevent in terms of root causes, human factors, and relevant preventative actions (so as to prevent a similar ME Eevent occurring into the future);
(iv) the “James Reason Culpability Tree” (JRC Tree) (see paragraph [57] of this decision) may be used to assist to identify root causes, and decipher between intentional and accidental errors;
(v) once the MEDA investigation is complete, the MEDA report will be submitted, and the SMS Report will be responded to (i.e. having regard to the conclusions of the MEDA report); and
(vi) if the cause of an ME Event is no-compliance with company policies or procedures by an individual, the individual may be counselled or required to complete retraining.
(c) Where “clear breaches” of REX policy and procedure occur, a file note can be added to an individual’s personnel file.
(d) For “wilful breaches”, further disciplinary action “may be” warranted, but only ‘after’ such a finding or conclusion is made as part of the SMS investigation (by a subject matter specialist), and such a finding or conclusion is referred to the General Manager Engineering (Mr Png).
(e) Just Culture principles should be applied to the SMS investigation and its outcomes.
“Just Culture” must be applied
[47] The GSMSM defines “Just Culture” as:
“An organisational perspective that discourages blaming the individual for a mistake that contributes to an accident or incident. Sanctions are only applied when there is evidence of a conscious violation or intentional reckless or negligent behaviour.” 47
[48] Clause 1.6 of the GSMSM sets out the “REX ‘Just Culture’ Principles”:
“The REX Group accident/incident/occurrence investigation policy incorporates the principles of ‘Just Culture’. Transparency and sharing of information are recognised as fundamental values in aviation safety. The intent of a ‘just culture’ is to aid in creating an environment in which the reporting and sharing of information is encouraged and facilitated.
Just culture is an organisational perspective that discourages blaming the individual for mistakes that contribute to an occurrence. Sanctions are only applied when there is evidence of a conscious violation or intentional reckless or negligent behaviour. Reporting of safety occurrences are a vital element of the REX SMS and failure to report any safety related incident may be considered misconduct and may warrant disciplinary action (please refer to Chapter 4 of this manual for more information regarding occurrence reporting).” 48
[49] In October 2018, CASA released an advisory publication to ensure CASA’s formally endorsed definition of “Just Culture” is accurately reflected in the relevant Exposition, manuals, and policies of AMOs. 49 Such updated definitions and principles in respect of “Just Culture” read:
“Just Culture
An organisational culture in which people are not punished for actions, omissions or decisions taken by them that are commensurate with their experience, qualifications and training, but where gross negligence, recklessness, wilful violations and destructive acts are not tolerated.
Limiting or curtailing a person’s aviation privileges until they can demonstrate that they are able to exercise those privileges safely are not to be regarded as discipline or punishment.
Just Culture (Safety Policy, Objectives and Planning)
A ‘just culture’ provides clear boundaries about confidentiality, reporting requirements, and individual responsibilities in relation to the SMS as far as management and staff are concerned. However, in a ‘just culture’ policy, a clear distinction is required between what is acceptable behaviour and what is unacceptable, and that people are treated accordingly. ‘Just culture’ is a necessary evolution from the ‘blame free’ culture of the past.
Where it is necessary in the interests of safety to limit or curtail the exercise of a person’s aviation privileges until it can be shown that the person is able and willing to exercise those privileges safely, such action does not constitute discipline or punishment.
CASA’s approach to just culture, and the approach CASA expects to see reflected in an organisation’s safety management practices, is consistent with the safety management standards adopted by the International Civil Aviation Organisation, European regulations governing safety occurrence reporting and the US Federal Aviation Administration’s Compliance Philosophy.” 50
…
“The Organisational Safety Policy/SMS Protocols would need to state that the purpose of internal investigations is to find systemic causes and implement corrective actions, NOT to apportion blame to individuals. Where a ‘Just Culture’ policy is in place, the Policy and Protocols for internal investigations should clearly reference such policy.” 51
[50] In March 2019 REX submitted an updated version of its GSMSM to CASA to reflect the foregoing change by CASA to the wording of Just Culture principles. This update appears to have arisen from a CASA audit (as opposed to REX making the update of its own volition). 52 At the time of the hearing, REX’s updated GSMSM was yet to be approved by CASA. Despite any issues that might be argued to flow from the absence of formal approval by CASA of REX’s updated GSMSM, I observe, for the purposes of this decision, that each of the provisions in respect of “Just Culture” broadly:
(a) discourage blame for mistakes;
(b) require the adoption of a blame free cultural environment;
(c) do not seek to punish individuals for actions, omissions or decisions that are commensurate with their experience, qualifications and training;
(d) encourage the creation of a workplace and safety environment where voluntary reporting of accidents/incidents/occurrences is supported, and safety information and data are shared between all employees in an open and transparent fashion, whilst at the same time maintaining confidentiality for any relevant employees involved;
(e) do not tolerate, and/or only seek to apply sanctions in circumstances concerning “conscious” or “wilful” violations, destructive acts, recklessness, or negligence (noting that the updated definition of October 2018 uses the arguably higher test of “gross negligence”);
(f) allow for the removal, limitation or curtailment of an individual’s aviation privileges (such as licences and authorisations), which does not constitute disciplinary action, provided that such removal only occurs until such time as it can be shown that the individual is able and willing to exercise those privileges safely. In my view, inherent in this is that the removal, limitation or curtailment of an individual’s aviation privileges would:
(i) not constitute disciplinary action, provided that the removal, limitation or curtailment of an individual’s aviation privileges does not become some form of an unjustified, unexplained or unreasonable permanent, indefinite or prolonged ban (and therefore a form of punishment, including by default); 53
(ii) ordinarily be temporary, with extent of any period of removal, suspension or curtailment directly referrable to any classification of risk (e.g. high, medium, low), and whether the relevant individual involved has been subject to any disciplinary action concerning the specific accident/incident/occurrence in question;
(iii) only involve the relevant aviation privileges attached to or referrable to the particular accident/incident/occurrence concerned; and
(vi) provide the ability for an individual, within a reasonable timeframe, to be able to show to an AMO that they can willingly exercise the relevant safety privileges that have been removed, limited or curtailed. This would occur via the AMO providing the individual/s with the opportunity/s to do so, thus putting an end to any removal, limitation or curtailment, within an appropriate and justifiable timeframe). 54
“Just Culture” - conscious violation, intentional recklessness, and/or negligent behaviour
[51] The GSMSM (applying as at the time of the hearing) states that “sanctions are only applied when there is evidence of a conscious violation or intentional reckless or negligent behaviour”. These terms are not defined in the GSMSM.
[52] For a “violation” to be “conscious”, a person’s state of mind and intent are relevant. Intent may be implied, but is to be determined objectively. A state of mind has an essential mental element, and concerns a person’s belief, thought, perception, intention, purpose, will, or a determination to do a certain thing. CASA’s publication “SMS for Aviation – A practical guide – Human Factors” is a comprehensive document that outlines how CASA has considered human factors amongst aviation operators are to be identified and managed. 55 According to this publication, making errors is a part of normal everyday life, or “about as normal as breathing oxygen”.56 Errors should first be classified as intentional actions, or unintentional actions, which can then be considered as either basic errors (such as slips, lapses or mistakes), or more serious violations.
[53] The term “recklessness” is something more than mere negligence. 57 No issue as to recklessness arises in these proceedings.
[54] “Negligence”means a failure to exercise care and skill. In an action for negligence, a plaintiff must prove that:
(a) the defendant owed him or her a duty to take reasonable care;
(b) the defendant breached that duty by failing to take reasonable care;
(c) the defendant’s breach of duty caused the injury or damage suffered by the plaintiff;and
(d) the injury or damage suffered was not too remote a consequence of the breach of duty. 58
[55] Whilst there remains debate as to whether the term “gross” adds anything of substance to the test for negligence, in my view it will depend upon the circumstances of the case, and any relevant provision being considered. 59 In this case, CASA has sought to preface the term “negligence” with the word “gross”. The word “gross” must have some work to do. In other words, I consider that CASA has intended for “gross negligence” to be something more than mere negligence. I note that in the case of Red Sea Tankers Ltd and Others v Papachristidis and Others Henderson, Baarma and Bouckley,60 Mance J noted that the distinction between mere negligence and gross negligence was material as the contractual term in that case was intended by the parties to represent something more than a failure to exercise the standard of care that would ordinarily constitute mere negligence.61 Ultimately the court held that “gross” negligence would include conduct undertaken with actual apprehension of the risks involved, and “serious disregard of” or “indifference to” an obvious risk.62
[56] An action for negligencewill not succeed if a defendant/s can establish a defence. At common law, contributory negligence is a complete defence to a claim of negligence. 63 However, each State and Territory have now enacted legislation that limit this common law position, whilst at the same time enabling for the apportionment of ‘damage’ based upon contributory negligence. In New South Wales, where the incidents involving Mr Hanson occurred, such legislative apportionment can extend to 100 percent of a claim.64
[57] In determining culpability for the accidents/incidents/occurrences that an employee is involved in, REX applies the JRC Tree as set out in its GSMSM. The JRC Tree was developed by Professor James Reason, Professor Emeritus of Psychology at the University of Manchester, England. The JRC Tree is expressed in the following diagram:
[58] My understanding is that the JRC Tree has been adopted worldwide as a measure of culpability in the aviation industry, as have the broad principles underpinning the JRC Tree (as devised by Professor Reason). Mr Hanson tendered in these proceedings Chapter 9 (Engineering a Safety Culture) of Professor Reason’s text entitled “Managing the Risk of Organisational Accidents”. 65 Given that the Respondents rely upon the JRC Tree as explaining or justifying certain determinations that they have made in respect of Mr Hanson, it is appropriate that I summarise and/or set out, some of the extracts from Chapter 9.
[59] Professor Reason points out that a “minimum of fuss” definition of “organisational culture” entails:
“Shared values (what is important) and beliefs (how things work) that interact with an organisation’s structures and control systems to produce behavioural norms (the way we do things around here).” 66
[60] He goes on to explain that the main elements of a “safety culture” broadly include:
(a) A “Culture” that propels the goal of maximum safety, regardless of more immediate commercial concerns, and regardless of the personalities of the leadership team.
(b) An “Informed Culture” encompassing the gathering of the right kinds of data, including human, technical, organisational and environmental factors.
(c) The willing participation of the workforce (being “the people in direct contact with hazards”) in a climate where individuals are prepared to report their errors and near-misses (“Reporting Culture”).
(d) The proper facilitation of a reporting culture by encouraging, even rewarding, individuals who voluntarily report safety accidents/incidents/occurrences. In the broad sense, not leaning towards, or being seen to lean towards, directly or indirectly, the apportionment of blame and/or punishment except in clear evidence-based circumstances of wrongful behaviour (“Just Culture”).
(e) Ensuring that control is placed with relevant task experts in the first instance. After this, control can revert back to a traditional bureaucratic (management/human resources) mode (“Flexible Culture”). 67
[61] When discussing trust (or a “climate of trust”), Professor Reason quotes from learned authors O’Leary and Chappel:
“For any incident reporting programme to be effective in uncovering the failures which contribute to an incident, it is paramount to earn the trust of the reporters. This is even more important when there is a candid disclosure of the reporter's own errors. Without such trust, the report will be selective and will probably gloss over pivotal human factors information. In the worst case - that in which potential reporters have no trust in the safety organization - there may be no report at all. Trust may not come quickly. Individuals may be hesitant to report until the reporting system has proved that it is sensitive to reporters' concerns. Trust is the most important foundation of a successful reporting programme, and it must be actively protected, even after many years of successful operation. A single case of a reporter being disciplined as the result of a report could undermine trust and stop the flow of useful reports.” 68
[62] On the issue of the interaction between self-reporting and disciplinary matters, Professor Reason refers to a quote from a former aircraft engineer:
“David Marx, an aircraft engineer who was one of the principal architects of the Boeing's Maintenance Error Decision Aid (see Chapter 7), made the following comments on the relationship between reporting and disciplinary systems. Though he is writing about the aviation industry, the points are widely applicable:
‘Many of us have found today's disciplinary systems to be a significant obstacle to asking an employee to come forward and talk about his or her mistake. Consequently, as an industry, we have begun to re-evaluate the inter-relationship of employee discipline and event investigation. Many programs have been developed, both internal to an airline and in association with the FAA ... Whether it is called immunity, amnesty or 'performance-related incentive' - each program attempts to encourage the erring employee to come forward. Yet, as more incentive programs enter the marketplace of ideas, the disciplinary landscape becomes increasingly complex and confusing. With all the programs today, the individual employee needs to be a lawyer to assess whether it is safe to come forward.’” 69
[63] I also consider it appropriate to set out some of Professor Reason’s considerations as to culpability under the JRC Tree:
“… [A]s Smith and Hogan point out:
‘The operator of aircraft, the surgeon performing an operation and the promoter of a tightrope act in the circus must all foresee that their acts might cause death; but we should not describe them as reckless, unless the risk taken was unjustifiable. Whether the risk is justifiable depends on the social value of the activity involved, as well as on the probability of the occurrence of the foreseen evil.’
Negligence, on the other hand, involves bringing about a consequence that a ‘reasonable and prudent’ person would have foreseen and avoided. One can also be negligent with regard to a circumstance: ‘A person acts negligently with respect to a circumstance when a reasonable man would have been aware of the existence of the circumstance and, because of its existence would have avoided acting in that manner.’ In the latter case whether the person failed to foresee the bad outcome and was unaware of the circumstance is irrelevant. … In a court of law, it is not necessary for the prosecution to prove anything at all about the person's state of mind at the time of the act. It is enough to establish that particular actions were carried out in certain circumstances. Negligence is historically a civil rather than a criminal law concept and has a much lower level of culpability than recklessness.
Those involved in the operation of hazardous technologies are often perceived as carrying an additional burden of responsibility by virtue of their training and of the great risks associated with human failure. For example, in the case of Alidair v. Taylor in 1978, Lord Denning ruled that:
‘There are activities in which the degree of professional skill which must be required is so high, and the potential consequences of the smallest departure of that high standard are so serious, that one failure to perform in accordance with those standards is enough to justify dismissal.’
This ‘hang them all’ judgement is unsatisfactory in many respects. It ignores the ubiquity of error as well as the situational factors that promote it. Nor is it sensitive to the varieties of human failure and their differing psychological origins. Pushing this judgement to an absurd conclusion, it could be claimed that, since all pilots, control room operators and others with safety-critical jobs in hazardous technologies are fallible, they will all, at some time or another, inevitably fall short of Lord Denning's ‘high standards’ and so should all be sacked. Even wise and distinguished judges do not get it right all of the time.
A much sounder guideline is Neil Johnston’s substitution test. This is in keeping with the principle that the best people can make the worst errors. When faced with an accident or serious incident in which the unsafe acts of a particular person were implicated, we should perform the following mental test. Substitute the individual concerned for someone else coming from the same domain of activity and possessing comparable qualifications and experience. Then ask the following question: ‘In the light of how events unfolded and were perceived by those involved in real time, is it likely that this new individual would have behaved any differently?’ If the answer is ‘probably not’ then, as Johnston put it, ‘ ... apportioning blame has no material role to play, other than to obscure systemic deficiencies and to blame one of the victims’. A useful addition to the substitution test is to ask of the individual’s peers: ‘Given the circumstances that prevailed at that time, could you be sure that you would not have committed the same or similar type of unsafe act?’ If the answer again is ‘probably not’, then blame is inappropriate.” 70
[64] The foregoing analysis by Dr Reason as to the substitution test has been adopted, albeit in a somewhat modified form, by a CASA guideline, as follows:
“Any person in the same situation might have found it difficult not to commit a violation (the substitution test)” (noting that “violations” are defined in the CASA guideline as acts involving “deliberately (and consciously) departing from known and established rules or procedures”, and are categorised into routine, situational, optimising, exceptional, and acts of sabotage violations). 71 (Substitution Test)
[65] The CASA guideline also sets out an example of how one would apply the Substitution Test:
(b) “Substitution Test: Ask the individual’s peers: Given the circumstances at the time of the event, could you be sure you would not have committed the same, or a similar, unsafe act?” 72
(my emphasis)
[66] REX did not advance any evidence as to what it actually defines the substitution test to be. In other words, there was no definition in the REX Exposition, or any other documents tendered by REX, of the substitution test that REX says applies when making an assessment under the JRC Tree. Whilst some of REX’s witnesses gave evidence as to how they would make an assessment of some of the incidents under the JRC Tree, the actual terms of the substitution test they were applying was never addressed (other than vaguely). 73 It appears to be a very unusual situation that CASA would approve an Exposition containing the JRC Tree, that requires the JRC Tree to be applied on questions of root cause and culpability, but then not have the definition of the substitution test to be applied expressly (and separately) set out in the Exposition.
[67] For the purposes of this decision, I adopt of the Substitution Test as defined in the CASA Guidelines. Although not squarely addressed by REX’s counsel at the hearing, the adoption of the CASA guideline definition appears to be the general tenor of Respondents’ submissions as to the appropriate definition of the substitution test. 74 That said, however, I equally do not cast aside what Professor Reason has said about the substitution test and its practical application. His views may not be wholly binding, but they are certainly relevant and informative.75
REX’s Code of Conduct
[68] REX has a Code of Conduct (REX’s Code) that applies to all executive and non-executive directors, officers, employees and contractors. 76 REX’s Code states that the reasons for the Code encompass REX’s commitment to “delivering strong returns and shareholder value whilst also promoting shareholder and general market confidence in the [REX] Group”. The REX Code also states:
“The [REX] Group is committed to complying with this Code and all employees are required to uphold the Code and any associated relevant policies and procedures. Employees should at all times comply with both the spirit as well as the letter of all laws which govern the operation of the [REX] Group and the principles of this Code.”
(my emphasis)
[69] The Code refers to the principle of “Just Culture” in relation to how REX is to handle disciplinary matters concerning its employees. That statement reads:
“The Group practices the principle of Just Culture when handling disciplinary matters concerning employees.
Just Culture seeks to encourage all employees to self-report all instances of errors, mistakes, negligence and wrongful/illegal acts or practices with regard to the Policies of the Group, promulgated operational procedures, approved company manuals and prevailing laws and regulations. Such a culture seeks to uncover all mistakes made so that the Group and employees can benefit by learning from them. Just Culture seeks to move away from a culture of blame to a culture of accountability and learning.
Just Culture does not absolve culpability and the findings on culpability will not differ whether the matter is self-reported or discovered through other means. However Just Culture principles will lead to a much lighter disciplinary measures taken by the Group when the matter is self-reported.
This is similar to the legal/justice system where self-reporting of a crime does not change the verdict of guilty of the perpetrator but will be a strong mitigating factor in the sentencing and will lead to a reduced or suspended sentence.
The Group expects all employees to self-report all errors, mistakes, negligence and wrongful/illegal acts or practices and commits to responding in a compassionate and supportive manner in accordance to the principles of Just Culture.”
(REX Code Just Culture definition)
[70] The REX Code also states:
“Always act in a manner that is in compliance with all applicable laws and regulations. In addition, it is expected that all employees will act in compliance with this Code and [REX’s] other policies in force from time to time.”
[71] Despite acknowledging that the REX Code is a “key HR document”, the reasons for the disparity and inconsistencies between the “Just Culture” provisions under the REX Code (especially in relation to disciplinary matters), and the “Just Culture” provisions under the GSMSM were never explained by the Respondents at the hearing. 77 In my view, such inconsistency and disparity arise as follows:
(a) the words and general tenor of the REX Code Just Culture provision are substantially different to the terms of the Just Culture provision under REX’s GSMSM and CASA’s October 2018 formally endorsed definition of Just Culture;
(b) the REX Code Just Culture definition expressly makes the point that Just Culture is a principle that does not absolve culpability, does not result in any different culpability where a safety issue is self-reported, and will be applied not to remove disciplinary action outcomes from safety accidents/incidents/occurrences, but may lead to “lighter disciplinary measure[s] taken” where self-reporting occurs. In making this point, the “Just Culture” provision under REX’s Code uses the unfortunate example of “the legal/justice system where self-reporting of a crime does not change the verdict of guilty of the perpetrator but will be a strong mitigating factor in the sentencing and will lead to a reduced or suspended sentence”; and
(c) the REX Code Just Culture provision states that REX “expects all employees to self-report all errors, mistakes, negligence and wrongful/illegal acts or practices”. In other words, rather than asking employees to self-report safety accidents/incidents/omissions/concerns/issues, REX’s Code requires employees to self-report what REX upfront asks employees to categorise as “errors, mistakes, negligence and wrongful/illegal acts or practices”.
[72] The foregoing inconsistencies and disparities between the terms of the REX Code and the terms of the GSMSM, in relation to “Just Culture”, create competing obligations. On the one hand, REX requires and demands that its employees comply with its Code, but on the other hand, REX puts itself forward to CASA as promising to comply with the MOS145 via observing and applying the terms of its GSMSM and Exposition. It is not clear to me how REX, or its employees, can comply with both the REX Code and the GSMSM (in relation to “Just Culture”) at the same time. Nor can this confusion be said to be resolved by generalised statements in the REX Code advising that employees need to comply with all applicable laws and regulations, whilst at the same time complying with the terms of the REX Code. This is because of the inherent difficulty in having to comply with the inconsistent terms of “Just Culture” at the same time.
[73] In my view, a fair reading the GSMSM as a whole, by reference to the “Just Culture Principles” set out at clause 1.6 of the GSMSM (and the definition of “Just Culture” in the GSMSM), identifies that “Just Culture” is not merely a consideration or principle that REX (as an AMO), and its appointed and nominated personnel, ought to have regard or aspire to, but must directly apply. In other words, when interpreting any terms of the GSMSM, and/or determining the manner in which any process or investigation is to occur, or outcome is to apply or be adopted, in relation to a safety accident/incident/occurrence (whether under the GSMSM or otherwise), 78 “Just Culture” principles (as contained in the GSMSM) are the central foundation and focus. More importantly, the GSMSM is a document that comes into existence not because REX has chosen to bring it into existence, but because REX has sought to obtain approval, and gained approval, as an AMO. In doing so, REX has promised to comply with the legislative requirements set out under the CAA, the CASR, and the MOS145 – including as expressly set out in, and/or otherwise reflected under its GSMSM in relation to “Just Culture”.
Relevant terms of the REX EBA
[74] It is appropriate to set out relevant terms of the REX EBA that will be referred to later in this decision:
“4. Definitions
4.1 ‘Accident’ is as defined by ICAO in the latest version of Annex 13.
4.13 ‘Company Authorisations’ means an Employee who is approved by the Employer to certify for aircraft maintenance, specific aircraft tasks and/or component maintenance for and on behalf of Regional Express.
4.19 ‘Extended Privileges’ means Company approval to certify for tasks outside their normal licence privileges.
4.25 ‘Incident’ as is defined in by ICAO in the latest version of Annex 13.
4.32 “Licenced Aircraft Maintenance Engineer Grade Payments” requires a Company Authorisation or approval from the General Manager Engineering.
4.36 “PCT” means Practical Consolidated Training.
8. Duties
8.1 The overarching responsibility of the Employees is to ensure the safe arrival and departure of aircraft on a daily and regular basis. The parties will work in a flexible and co-operative way to ensure that these responsibilities are met.
…
11.7 Company Authorisation
(a) Issuance of a Company Authorisation is wholly at the discretion of the Company and subject to the assessed skill/performance of the Engineer and the Company’s need for such authorised engineers. Authorisation payments will only be paid when an engineer holds the applicable Company Authorisation.
(b) Subject to clause 13.7, of the Company Authorisations which are subject to Enterprise Agreement payments, only those listed in table 11.7.1 may be removed from the Engineer by the Company for other than performance/disciplinary issues. Upon removal of the Company Authorisations listed in table 11.7.1 payments will be grandfathered for 3 years with a reduction by one third (1/3) in the allowance each year.
11.7.1 Company Authorities |
Approved Training/Assessor |
Dangerous Goods |
Specialist Maintenance e.g. NDT |
Taxi Approval |
Component Maintenance |
A Task |
High Risk Work (Ground Equipment) |
B1 when B2 is the engineers primary focus |
B2 when B1 is the engineers primary focus |
PA28 / PA44 B1 or B2 when a Saab 340 B1 or B2 is held and the Saab 340 is the engineers primary focus |
Saab 340 B1 or B2 when a PA28 / PA44 B1 or B2 is held and the PA 28 / PA44 is the engineers primary focus |
(c) Any new Company Authorisations introduced by the Company which incur an Enterprise Agreement payment will be deemed to be included in the above table 11.7.1.
(d) Clause 11.7(b) is intended to operate where Company Authorisations are genuinely not required due to on-going operational needs.
13.9 Approved Trainer / Assessor Allowance
An approved Trainer / Assessor is a person who holds a Company Authorisation to carry out training and / or assessment of specific engineering tasks as defined by the GME and will be paid an allowance as provided in Schedule 11.8.
35. Disciplinary Matters
35.1 Preliminary meetings with staff may be conducted for the purpose of gathering information regarding potential disciplinary matters with the aim of determining if a formal meeting between an Engineer and representatives of the Company is required. Preliminary meetings do not require formal notification.
35.2 An Engineer who is required to attend a formal meeting with representatives of the Company whose purpose is to determine if disciplinary action should be taken, except as outlined in clause 36 of this Agreement and as promulgated in Company Policies will be provided with written notification of the subject/s of the meeting, including a list of those attending the meeting on behalf of the Company. Such a meeting shall be confined to the subject/s as provided in that notification.
35.3 Any request for postponement of the meeting to allow time for relevant preparation will not be unreasonably refused.
36. Investigating Accidents and/or Incidents
36.1 In the event of an Accident or Incident as defined in clauses 4.1 and 4.25 persons involved are to make a statement without prejudice, as soon as practicable. Such statement may be made in the presence of a friend.
36.2 After receiving the statement, the Employer is entitled to stand the person down, with pay, whilst the report, in total, is considered.
36.3 Should the Employer be satisfied with the report and no further action is required, the person so cleared will be advised to resume normal work.
36.4 Where it is proposed to further interview an Employee in connection with the Employee’s alleged involvement in an Accident or Incident which may lead to disciplinary action against the Employee the Employee will be informed by the responsible officer of the Employer:
(a) of the purpose of the interview;
(b) of the charge against him/her and outline of reasons therefore;
(c) that disciplinary action may result;
(d) that the Employee has the right to be accompanied and represented by an Employee representative;
(e) the Employee may request reasonable time (not more than 24 hours) to become familiar with matters set out in sub-clause 36.4(b).
36.5 If the Employee elects to be accompanied and/or represented by such accredited representative, the Employee may require that the advice given in sub-clauses 36.4(a), 36.4(b), 36.4(c) and 36.4(d) will be repeated in the presence of such accredited representative.
36.6 If, following such interview, the Employer proposes to dismiss, suspend without pay, or remove the Employee from a supervisory position; the Employee will be informed of that proposed disciplinary action in the presence of an Employee representative.
36.7 In the event that an Employee is dissatisfied with the decision, the matter may be referred to the Fair Work Commission for conciliation and/or arbitration.
36.8 Subject to any appeal rights of the parties, the decision of Fair Work Commission in relation to matters raised under this clause will be final and binding.
36.9 In addition to other provisions of this clause 36, in the prevention or settling of disputes the duly appointed representative or delegate of the Association or Union in the workplace is entitled to such paid time during working hours as is necessary to meet with the Employer or its representative to discuss matters affecting the Employees.
36.10 For the avoidance of doubt, nothing in this clause is intended to confer an entitlement or remedy in relation to a termination of the Employee’s employment that is unfair as described in section 194 of the Act.”
The First Incident
[75] On 3 July 2017, whilst an aircraft (REX SAAB 340, registration VH-ZLA) was being taxied from the tarmac (F15B) to a REX maintenance/engineering hanger, the aircraft struck the upright lid of an open industrial skip-bin, causing damage to the left wing-tip’s strobe-light (and some damage to the surface finish of the paint on the wingtip). There was no structural damage to the wing-tip or the aircraft (hereinafter First Incident). 79
[76] Mr Hanson was the left seat operator (LSO) of the aircraft involved in the First Incident, and Mr Andrew Margiotta was the right seat operator (RSO).
[77] As the LSO for a SAAB 340 aircraft, Mr Hanson was in charge of the operation of the aircraft when taxiing to the hanger, and responsible for ensuring that the area forward and to the left of the aircraft were free of obstructions. He was also the holder of a recognised license covering aircraft engine starting, running and shutdown, and aircraft taxiing procedures, 80 and had been relevantly trained by REX in that regard.
[78] As the RSO, Mr Margiotta was responsible for monitoring the right wing of the aircraft. He has confirmed that all proper procedures were followed by Mr Hanson in taxiing the aircraft in the cockpit (i.e. engine starts, radio operation and ground runs). 81
[79] Mr Davis Steel was inside the hangar some 35-50 metres from the aircraft. Just prior to the incident, Mr Steel attempted to bring to the attention of Mr Hanson and/or Mr Margiotta that the left wing may hit the industrial bin. Neither Mr Hanson nor Mr Margiotta noticed Mr Steel waving his hands about in or near the hangar. 82 There was no requirement for a marshaller to be in front of or external to the aircraft whilst it was being taxied.83
[80] Immediately after impact, Mr Hanson stopped the aircraft and took photos of the area and the damage, reported the incident to his supervisor (Mr Kendall), and submitted a REX Safety Management System Report (First Incident SMS Report). 84 The REX Safety Group made a preliminary risk assessment of the First Incident, and marked it as “low”,85 and not a “high priority”.86 Mr Kendall was appointed as the “lead investigator” in relation to the First Incident SMS Report, with supporting investigators Mr Png, Mr Burgess, Mr Richard Taylor, and Mr Robyn Will (First Incident SMS Investigation).87
[81] It is not in dispute that Mr Hanson also approached Mr Kendall shortly after the First Incident and stated: “Ryan [Mr Kendall], I’ve stuffed up. I was taxiing an aircraft into the hangar and I’ve hit the wing tip on the skip bin, I saw it was close but thought I’d be alright”. 88
[82] Later that day, Mr Kendall issued Mr Hanson with a letter advising him that his Taxi Authority (TA) and Critical Task Authority (CTA) were suspended. The suspension of the TA meant that Mr Hanson could no longer taxi REX aircraft until such time as the REX engineering technical board had recertified or approved him to do so. The suspension of the CTA meant that any critical system maintenance carried out by Mr Hanson would require independent certification from another (relevantly rated) LAME, and that Mr Hanson could not certify independent checks carried out by other LAMEs. The letter also stated that:
“You will be required to attend a follow up interview with the REX engineering technical board or Sydney LMS in regards to this incident and company taxiing procedures.
It is understood that this is not a punishment but is intended to be a corrective action to better build you as a highly competent engineer, the same standards that are expected of all REX engineers are maintained to the highest level, in addition to preventing safety incidents.” 89
(my emphasis)
[83] Whilst on its face, this letter is consistent with the concept of “Just Culture”, and the suspension of the TA and CTA not being punishment or disciplinary action, in considering all of the circumstances of the case, it is the substance of what has occurred post this letter that is the focus in this Anti-Bullying Application in relation to the First Incident. I note that the assigned closure dated of the First Incident SMS Investigation was 3 October 2017. 90
[84] I also note that video footage of the First Incident, taken from the hangar, was viewed by Mr Kendall on 3 July 2017. 91 Sometime after this, the video footage was lost.92 Mr Kendall did not make any notes at the time he viewed the First Incident on video.
[85] When lodging the First Incident SMS Report on 3 July 2017, Mr Hanson included the following “without prejudice” statement (WP Statement):
“The aircraft was being taxied from F15B to the hangar using normal procedures. It had just started raining. I was in the left seat and looked out the side windshield to check for clearance as it is usually a bit tight when approaching the hangar. I saw the bin lid was close to the wingtip. I was moving slowly and thought it would pass the bin ok. I saw the wingtip start to pass the bin lid and thought it was still good. Then I saw the glass fragments falling and the bin lid dropped. I stopped the aircraft where it was. I shut the aircraft down. I exited the aircraft and observed that I was about 6 inches to the right of the taxi line. I took photos and passed them to the LMS.” 93
[86] I note that it does not appear to be in dispute that a without prejudice statement is not be used or otherwise relied upon in relation to any disciplinary process or outcomes under clause 36 of the REX EBA (meaning that the WP Statement by Mr Hanson should have only been used as a baseline for the First Incident SMS Investigation, with Mr Hanson, as promised in the letter from Mr Kendall, to be given a subsequent opportunity to make a formal, official and more complete statement as part of that investigation). That said, the issue appears to be of no moment in that Mr Kendall stated at the 1 November 2017 meeting that he “did not use the [WP Statement] from SH [Mr Hanson] in the [First Incident SMS] investigation”. 94
[87] On 4 October 2017, being just over three months after the First Incident, and a day after the “assigned closure date” for the First Incident SMS Investigation, Mr Hanson was issued a letter to attend a meeting with Ms Penglis on 16 October 2017 in relation to the First Incident. The meeting had been directed to occur by Mr Png and Mr Kendall. 95 I note that at this time Mr Hanson had yet to be formally interviewed or provide a formal statement as part of the First Incident SMS Investigation. The letter stated, “As disciplinary action may be considered, you are entitled to have a representative”. No allegation against Mr Hanson is contained in this letter.96 I note that Mr Sowter, ALAEA Industrial Officer (on behalf of Mr Hanson) raised concerns about the 16 October 2017 meeting with Ms Penglis by way of letter dated 12 October 2017.97 In short, Mr Sowter was seeking clarification from Ms Penglis as to why her letter stated that Mr Hanson may be subject to disciplinary action as part of a human resources disciplinary investigation, whether Ms Penglis was commencing a process under the REX EBA and what that process was, what REX was doing in relation to compliance with its Exposition and the GSMSM in relation to the First Incident, whether REX intended that a “subject matter expert” would be present during any the meeting with Mr Hanson (as required by the REX GSMSM and the MEIP), and what was the status of the First Incident SMS Investigation.
(d) I equally reject the suggestion that because the issuing of the First Media Release (containing Mr Hanson’s name) was a mistake, was sought to be recalled, and a Second Media Release was issued (not containing Mr Hanson’s name), that REX is somehow absolved, in part or in whole, from unreasonable conduct. The evidence is that not all of the emails containing the First Media Release were recalled. I have found that Mr Hanson can be identified by some people (including his work colleagues) in the Second Media Release. Further, REX has made no retraction of either of the media releases, no apology to Mr Hanson, and no public apology or retraction of the allegations and assertions made against Mr Hanson in the media releases.
(e) at the time of the release and distribution of the media releases, there were active disputes before this Commission concerning Mr Hanson, and Mr Hanson’s Anti-Bullying Application was also open and before this Commission. These active (and yet to be determined matters) before the Commission are being said in the media releases to be grounded in “wild accusations … raised by a disgruntled engineer and his union … to the Fair Work Commission”. Further, these active matters before the Commission are subject to public listings on the Commission’s website.
(f) the content of the media releases cast Mr Hanson as a “disgruntled engineer” making “wild accusations”, who is being supported by the ALAEA. In other words, the ALEA is in the business of supporting disgruntled members who make wild accusations. These assertions are then connected to what is suggested to be anonymous malicious attacks. However, the implication is that no matter who is launching these anonymous malicious attacks, they have their source from Mr Hanson and/or the ALAEA. This is directly apparent from the following statement in the media releases:
“REX’s Chief Operating Officer Neville Howell said: “Realising that these baseless accusations [by a disgruntled engineer and his union] are not getting any traction, some are now taking the despicable and cowardly approach of launching anonymous malicious attacks on REX in the press.”
(h) the assertions in the media releases that Mr Hanson was making wild accusations to the Fair Work Commission, and was doing so because he was disgruntled, had no proper foundation at the time they were made. Nor did REX squarely put such a contention as to “wild accusations” before this Commission to be tested. My conclusions on the evidence in these proceedings are that none of Mr Hanson’s claims have been “wild accusations”, indeed, quite the opposite. In short, in my view, REX had no basis to be making these accusations as to “wild accusations” by Mr Hanson in the first place. They are not credible accusations, and have never been credible accusations.
[225] One final point on the issuing of the media releases by REX being unreasonable, is that it is conduct that is contrary to the requirements of the REX GSMSM, including “Just Culture” principles. 234 It is conduct that is therefore likely to have a deleterious and direct impact upon the safety culture at the REX workplace. It is conduct that erodes trust generally, and thus undermines a safety culture that is ‘Just’. Rhetorically, why would a REX employee want to report a safety issue if they have the potential to end up in a media release referring to them as disgruntled engineer who makes wild accusations?
Other matters
[226] It is appropriate that I deal with some of the two other contentions made by the Respondents in these proceedings, as follows:
[227] The Respondents contend that Mr Hanson’s conduct in relation to the First to Third Incidents ought to be characterised as Mr Hanson using the Commission’s bullying jurisdiction for a purpose that it has not been intended to be used, consistent with the reasoning of Sams DP in the case of Tanka Jang Karki: 235
“In my opinion, it is not acceptable to use the stop bullying jurisdiction of this Commission as a shield or stalking horse, to prevent, delay or deflect justifiable disciplinary outcomes, or to claim that the disciplinary outcomes themselves are repeated unreasonable behaviour, constituting bullying. It demeans and undermines the important work of the Act’s stop bullying provisions to prevent workplace bullying. On one view, such conduct might be said to be perilously close to an abuse of process.
For some time, I have been troubled that the important and beneficial purpose of the stop bullying jurisdiction of the Commission is being used for a purpose for which it was never intended by the legislature. This has been a strategy to file a stop bullying application as a deflection, or diversion, or even to overturn a justified disciplinary action or legitimate or performance improvement processes, implemented by an employer as a reasonable management response to incidents of misconduct or poor performance. This case is an obvious example of this improper purpose.” 236
[228] I reject this contention. It is not supported by the facts in this matter, or my findings in this matter.
[229] The Respondents contend that the ALAEA, and its officers, Mr Re, Mr Sowter and Mr Morgan, have acted unreasonably in representing Mr Hanson in the First to Third Incidents, and that such representation has caused or otherwise contributed to the delay in resolving these incidents, and/or caused REX to behave in the manner it has min relation to these incidents. This contention must be rejected. On the evidence before me, I consider the ALAEA and its officers to have been exceptional and professional representatives of Mr Hanson. Indeed, given the nature of the issues that Mr Hanson has been confronted with, the behaviour of Mr Png, Mr Burgess and Ms Penglis, and the complexities surrounding the legislative obligations in relation to safety at the REX workplace, I do not accept that any of the conduct of the ALAEA’s officers in relation to correspondence drafted, requests made, attendance at interviews, and the representation of Mr Hanson more generally has been other than totally above board and professional.
Summary of findings
[230] Having regard to the evidence before me, the written and oral submissions of the parties, and my findings and conclusions as set out throughout this decision, the findings I make in relation to bullying are as follows:
(a) Mr Hanson is a “worker” who is protected by Part 6-4B of the FW Act, employed by REX (being a constitutionally-covered business (s.789FC(2); s.789FD(1)(a); s.789FD(3));
(b) In the events that have happened, and on his own evidence as tendered in these proceedings, Mr Hanson holds a “reasonable belief” that he has been bullied at work (s.789FC);
(c) Mr Hanson was relevantly “at work” in respect of the First to Fourth Incidents (the latter as it concerns the First and Second Media Releases) (s.789FD(1)(a));
(d) Each of the three individually named Respondents are “individuals” who have “behaved unreasonably towards” Mr Hanson (s.789FD(1)(a)). In this regard:
(i) Mr Png has behaved unreasonably towards Mr Hanson in relation to the First Incident, the Second Incident, and the Third Incident (s.789FD(1)(a));
(ii) Mr Burgess has behaved unreasonably towards Mr Hanson in relation to the Second Incident (s.789FD(1)(a)); and
(iii) Ms Penglis has behaved unreasonably towards Mr Hanson in relation to the First Incident (s.789FD(1)(a)).
(e) The unreasonable behaviour towards Mr Hanson has been engaged in by each of the three individual Respondents “repeatedly” (s.789FD(1)(a)). In making this finding, I have concluded that the unreasonable behaviour in this matter is not only based upon each of the three incidents as a whole, but relates to persistent steps taken by each of the individual Respondents as part of, and in the lead up to, the outcomes of the three incidents. 237 In this regard, in my view, the unreasonable behaviour concerning matters such as repeated failure to follow policy (such as the MEIP), and repeated failure to comply with the GSMSM (including principles of “Just Culture”) and the MOS145, has occurred repeatedly throughout the conduct of each of the three incidents.
(f) It is clear on the evidence that the unreasonable behaviour has not only created a risk to Mr Hanson’s health and safety; but has actually resulted in Mr Hanson’s health and safety being compromised. 238
(g) The unreasonable behaviour has not been reasonable management acted carried out in a reasonable manner (s.789FD(2)).
(h) The First and Second Media releases are unreasonable behaviour and are reflective of a course of conduct related to, and directly connected with, the unreasonable behaviour in the First, Second and Third Incidents.
[231] In view of the above findings, I am satisfied that Mr Hanson has been bullied at work by each of the individually named Respondents. Further, having regard to the unreasonable behaviour that I have found to have occurred, and the Respondents’ failure at any point in these proceedings to accept that their behaviour has been unreasonable and/or take reasonable steps to ensure that it does not continue, I am equally satisfied that there is a real risk that Mr Hanson will continue to be bullied at work by the individually named Respondents.
Orders
[232] In closing submissions, Ms Saunders stated:
“Yes, I think that is the appropriate course, what I said earlier, is that if in the event the Commissions' minded to grant the application, in whole or in part, findings be identified and the parties given an opportunity to propose orders, given the slightly unusual nature of this case.” 239
[233] I concur with this submission and propose to adopt the approach suggested by Ms Saunders. Directions will be issued separately to this decision providing the parties with the opportunity to provide draft orders, and submissions in support of such orders. I will then make a further decision and issue the relevant orders that I consider appropriate to prevent Mr Hanson from being further bullied at work by the individually named Respondents.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR728838>
1 Respondent’s Outline of Submissions, undated, at [4].
2 [2020] FWC 3988.
3 Ibid, at [21]-[22].
4 [2021] FWC 951.
5 Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55, at [117], per Kirby and Crennan JJ, concurring with Callinan J..
6 Exhibit A1, Mr Hanson Statement, undated, filed 2 August 2019, at [1]-[6]; [98].
7 [2015] FWC 774
8 Ibid, at [75].
9 Re GC[2014] FWC 6988 at [47] (Hampton C), cited with approval in Blagojevic v AGL Macquarie Pty Ltd[2018] FWCFB 4174 at [15] (Ross J, Kovacic DP, Hampton C); Mac v Bank of Queensland Limited[2015] FWC 774 at [88] (Hatcher VP); Re SB (2014) 244 IR 127; [2014] FWC 2104 at [43] (Hampton C).
10 Ibid.
11 Re SB (2014) 244 IR 127; [2014] FWC 2104 at [41] (Hampton C), cited with approval in Blagojevic v AGL Macquarie Pty Ltd[2018] FWCFB 4174 at [17] (Ross J, Kovacic DP, Hampton C).
12 Re GC[2014] FWC 6988 at [45] (Hampton C); Mac v Bank of Queensland Limited[2015] FWC 774 at [89] (Hatcher VP).
13 Re SB (2014) 244 IR 127; [2014] FWC 2104 at [41] (Hampton C), cited in Mac v Bank of Queensland Limited[2015] FWC 774 at [89] (Hatcher VP).
14 Ibid at [44] to [45].
15 Bowker v DP World Melbourne Limited & Ors[2014] FWCFB 9227.
16 [2019] FWCFB 2771, 289 IR 105.
17 Ibid, at [29].
18 Ibid at [47] to [55].
19 [2018] FWCFB 4174.
20 Ibid, at [19]-[23].
21 (2015) 247 IR 274; [2015] FWC 774.
22 Ibid, at [99].
23 CASR, r.145.015(2)(xviii).
24 See current MOS145 compilation, 18 March 2015: (“MFI-1”).
25 Note Transcript, 24 September 2019, PN1327-PN1335.
26 MOS145, at 145.A.05(c).
27 MOS145, at 145.A.30(a).
28 MOS145, at 145.A.30(a) to (c); see also 145.A.65(d)
29 MOS145, at 145.A.30(e).
30 MOS145, at 145.A.12.
31 Ibid.
32 MOS145, at 145.A.60(a).
33 MOS145, at 145.A.65(a).
34 MOS145, at 145.A.65(b).
35 MOS145, at 145.A.65(d).
36 Exhibit R9, Burgess, dated 23 August 2019, at [17] to [19] (as at 1 October 2018).
37 Exhibit R9, Burgess, dated 23 August 2019, Annexure “MB-1”, p.43.
38 By way of example, see approach to the interpretation of legislation where there may be conflicting legislative provisions in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, at [69]-[70]. See also Exhibit R9, Burgess, dated 23 August 2019, at [36].
39 See also Exhibit R9, Burgess, dated 23 August 2019, Annexure “MB-2”, p.228. Note also clause 36.2 of the REX EBA.
40 Compare Exhibit R4, Mr Png Statement, 23 August 2019, at [38], [42](a)].
41 Exhibit R9, Burgess, dated 23 August 2019, Annexure “MB-1”, p.137.
42 Exhibit R9, Burgess, dated 23 August 2019, Annexure “MB-1”, p.139.
43 Exhibit R9, Burgess, dated 23 August 2019, Annexure “MB-1”, pp.142-143.
44 See Exhibit R9, Burgess Statement, dated 23 August 2019, Annexure “MB-2”, p.228, and “MB-3”, pp.203-233. Note also clause 36.2 of the REX EBA. See also Transcript, 24 September 2019, PN1538-PN1540.
45 Transcript, PN4244.
46 Transcript, PN4245; Transcript, 24 September 2019, PN1571.
47 Exhibit R9, Burgess, dated 23 August 2019, Annexure “MB-1”, p.64.
48 Exhibit R9, Burgess, dated 23 August 2019, Annexure “MB-1”, p.77.
49 Exhibit R9, Burgess, dated 23 August 2019, at [31] to [35], Annexure “MB-6”, especially at pp.338-339.
50 Exhibit R9, Burgess, dated 23 August 2019, Annexure “MB-6”, pp.344 and 351.
51 Exhibit R9, Burgess, dated 23 August 2019, Annexure “MB-6”, pp.375.
52 Exhibit R9, Burgess, dated 23 August 2019, Annexure “MB-7”, p.393.
53 Transcript, 15 November 2019, at PN2769; PN4021; PN4193-PN4194.
54 Note Transcript, 24 September 2019, at PN1336-PN1356; PN1370-PN1386; PN1506-PN1516;
55 Exhibit A8.
56 Ibid, at p.6.
57 See R v Nuri [1990] VR 641 and Albert E Reed & Co, Ltd v London & Rochester Co Ltd, [1954] 2 Lloyd's Rep 463, at 475.
58 See Halsbury’s Laws of Australia, [300-1] ‘Negligence - Introduction’. I note that Mr Kendall considers “negligence” to require intention (Transcript, 24 September 2019, PN1357-PN1368; PN1629-PN1640), whereas Mr Burgess and Mr Png consider that negligence can be found on the basis of unintentional acts. Whilst Mr Burgess and Mr Png are correct, the fact that Mr Kendall has a different view appears to highlight a broader deficiency in REX training as to the meaning of Just Culture (including the term negligence).
59 Red Sea Tankers Ltd and Others v Papachristidis and Others Henderson, Baarma and Bouckley [1997] 2 Lloyd’s Rep 547, at 586 per Mance J.
60 [1997] 2 Lloyd’s Rep 547.
61 Ibid.
62 Ibid.
63 McLean v Bell (1932) 147 LT 262; British Columbia Electric Railway Co Ltd [1916] 1 AC 719.
64 Civil Liability Act 2002 (NSW), Part 1A, ss. 5R and 5S.
65 Exhibit A11, Reason, James, “Managing the Risks of Organisational Accidents”, Routledge, 1997, Chapter 9.
66 Ibid, p.192.
67 Exhibit A11, Reason, James, “Managing the Risks of Organisational Accidents”, Routledge, 1997, Chapter 9, pp.195-196.
68 Ibid, pp.197-198, citing M. O’Leary and S.L. Chappel, “Confidential incident reporting systems create vital awareness of safety problems”, ICAO Journal, 51, 1996, pp.11-13.
69 Ibid, pp.212-213.
70 Ibid, pp.206-208.
71 Exhibit A8, pp. 8-11, and 14.
72 Exhibit A8, p.14.
73 See, for example, Transcript, 24 September 2019, PN1588; PN1597-PN1606.
74 Transcript, PN6335.
75 Transcript, PN4376.
76 Exhibit R3, Ms Penglis Statement, Annexure “MP-1”, REX Code of Conduct.
77 Transcript, 15 November 2019, PN3612 to PN3621.
78 For example, the REX EBA.
79 Exhibit R1, Mr Kendall Statement, 23 August 2019, Annexure “RK-8” (p.59 of Mr Kendall Statement, p.3 answer under heading “Damage Description”).
80 Exhibit A6, Mr Re Statement, 2 August 2019, p.22, Annexure “SR-4”: SAAB 340 Aircraft Maintenance Manual. Note also “SAAB 340 Aircraft Taxi Training” procedure for REX Approved Aircraft Taxiing Trainer & Assessor on pp.21-22 of Mr Re Statement.
81 Exhibit R1, Mr Kendall Statement, 23 August 2019, at [54], Annexure “RK-3” (p.41 of Mr Kendall Statement) and Annexure “RK-8” (pp.57-71 of Mr Kendall Statement).
82 Exhibit R1, Mr Kendall Statement, 23 August 2019, Annexure “RK-3”, p.41.
83 Exhibit R1, Mr Kendall Statement, 23 August 2019, at [54], Annexure “RK-3” (p.41 of Mr Kendall Statement) and Annexure “RK-8” (pp.57-71 of Mr Kendall Statement).
84 Exhibit A4, Mr Sowter Statement, 2 August 2019, at [7]; Exhibit A6, Mr Re Statement, 2 August 2019, at [6]; Exhibit R1; Mr Kendall Statement, 23 August 2019, at [50]-[53].
85 Exhibit R1, Mr Kendall Statement, 23 August 2019, at [60].
86 Exhibit R4, Mr Png Statement, 23 August 2019, at [35].
87 Exhibit R1, Mr Kendall Statement, 23 August 2019, at [61].
88 Exhibit R1, Mr Kendall Statement, 23 August 2019, at [50]. Transcript, 24 September 2019, at PN528.
89 Exhibit A1, Mr Hanson Statement, undated, filed 2 August 2019, at [8]-[9], Annexure “SH-1”.
90 Exhibit R4, Mr Png Statement, 23 August 2019, Annexure “PYT-3”, p.41.
91 Exhibit R1, Mr Kendall Statement, 23 August 2019, at [54].
92 Exhibit R1, Mr Kendall Statement, 23 August 2019, at [71(b)(i)].
93 Exhibit R4, Mr Png Statement, 23 August 2019, Annexure “PYT-3”, p.40. See also Annexure “PYT-10”, pp.77-78.
94 Exhibit R1, Mr Kendall Statement, 23 August 2019, Annexure “RK-5” (p.46 of Mr Kendall Statement containing the minutes of the meeting on 1 November 2017).
95 Exhibit R4, Mr Png Statement, 23 August 2019, at [36].
96 Exhibit A1, Mr Hanson Statement, undated, filed 2 August 2019, at [13]-[17], Annexure “SH-2”.
97 Exhibit A4, Mr Sowter Statement, 2 August 2019, at [10]-[12], Annexure “GS-1”.
98 Being an investigation that Mr Hanson had never been provided with an opportunity to make a formal statement (and had only provided a preliminary verbal without prejudice statement).
99 Exhibit A4, Mr Sowter Statement, 2 August 2019, at [13]-[17]. See also minutes of meeting on 1 November 2017 where Ms Penglis acknowledges that she is “not aware of the MOE process”: Exhibit R1, Mr Kendall Statement, 23 August 2019, Annexure “RK-5” (bottom of p.46).
100 Note Transcript, 24 September 2019, PN1819-PN1834.
101 Exhibit A1, Hanson Statement, undated, filed 2 August 2019, at [18]-[19], Annexure “SH-2”.
102 Exhibit A1, Hanson Statement, undated, filed 2 August 2019, at [20]-[21]; Exhibit A6, Mr Re Statement, 2 August 2019, at [11]-[17]; Exhibit R1, Mr Kendall Statement, 23 August 2019, at [70]-[72].
103 Exhibit R1, Mr Kendall Statement, 23 August 2019, Annexure “RK-5” (bottom of p.45 of Mr Kendall Statement containing the minutes of the meeting on 1 November 2017). I note that Mr Kendall does not have a good recollection of this meeting, and does not remember whether or not he advised Mr Re that the First Incident SMS Report was closed (Exhibit R1, Mr Kendall Statement, 23 August 2019, at [71]), however, the statement as to closure is included in the meeting minutes of 1 November 2017 contained at Annexure “RK-5”.
104 Exhibit R1, Mr Kendall Statement, 23 August 2019, Annexure “RK-5” (bottom of p.46).
105 Exhibit R1, Mr Kendall Statement, 23 August 2019, at [73].
106 Exhibit R1, Mr Kendall Statement, 23 August 2019, at [74]; see also Exhibit A1, Hanson Statement, undated, filed 2 August 2019, at [22]-[23], Annexure “SH-4”.
107 Exhibit R1, Mr Kendall Statement, 23 August 2019, at [54], Annexure “RK-3”.
108 Exhibit R3, Ms Penglis statement, 23 August 2019, Annexure “MP-7”, p.54: “MP not aware of safety investigation results”.
109 Ibid.
110 Exhibit A6, Mr Re Statement, 2 August 2019, at [11]-[17].
111 Transcript, 24 September 2019, PN1929-PN1930.
112 Transcript, 25 September 2019, PN1929-PN1930.
113 Exhibit R4, Mr Png Statement, 23 August 2019, Annexure “PYT-3”, p.38. It appears these statements were inserted twice into the First Incident SMS Report.
114 Exhibit R4, Mr Png Statement, 23 August 2019, at [24].
115 Transcript, 24 September 2019, PN1882; PN1896-PN1897.
116 Exhibit R4, Mr Png Statement, 23 August 2019, at [50] to [53].
117 Exhibit R3, Ms Penglis statement, 23 August 2019, Annexure “MP-13”, top of p.75.
118 Exhibit R7, REX Aircraft Taxi Training (SAAB 340) Manual, pp.4, 6, 8, 10, 19-20, 22, 27.
119 Exhibit R4, Mr Png Statement, 23 August 2019, Annexure “PTY-3”, pp.47-49.
120 Exhibit R4, Mr Png Statement, 23 August 2019, Annexure “PTY-3”, p.46.
121 Exhibit R4, Mr Png Statement, 23 August 2019, Annexure “PTY-3”, p.43 (example of double yellow lines).
122 Exhibit R3, Ms Penglis statement, 23 August 2019, Annexure “MP-13”, p.81.
123 Nor had Mr Hanson made a verbal statement to that effect (Exhibit R3, Ms Penglis statement, 23 August 2019, Annexure “MP-14”, point 0.75 of p.83.
124 Exhibit R3, Ms Penglis statement, 23 August 2019, Annexure “MP-14”, pp.83-84.
125 Exhibit R3, Ms Penglis statement, 23 August 2019, Annexure “MP-15”, p.86.
126 Exhibit R3, Ms Penglis statement, 23 August 2019, Annexure “MP-16”, p.88.
127 Exhibit A1, Mr Hanson Statement, filed 2 August 2019, at [35] to [37], Annexure “SH-7”.
128 Exhibit R3, Ms Penglis statement, 23 August 2019, Annexure “MP-18”, top of p.94. The email being referred to from Mr Png to the ALAEA on 9 January 2018 did not make its way into evidence before the Commission.
129 Exhibit R1, Mr Kendall Statement, 23 August 2019, at [94] to [97], Annexure “RK-10”.
130 Transcript, 24 September 2019, PN1709-PN1712. Nor did the respondents call Mr Jackson or Mr Bradley to give evidence in these proceedings.
131 Exhibit R3, Ms Penglis statement, 23 August 2019, Annexure “MP-17”, p.90-91.
132 Transcript, 18 November 2019, PN5037-PN5039. See also Exhibit “A9”.
133 Transcript, 24 September 2019, PN2228-PN2232.
134 Exhibit R3, Ms Penglis statement, 23 August 2019, Annexure “MP-18”, pp.93-95.
135 Exhibit R3, Ms Penglis statement, 23 August 2019, Annexure “MP-20”, pp.100-102.
136 Exhibit R4, Png Statement, Annexure “PYT-24”, pp.133-136.
137 Transcript, 24 September 2019, PN2176.
138 Exhibit R4, Png Statement, Annexure “PYT-25”, pp.137-143.
139 Transcript, 24 September 2019, PN1776-PN1787.
140 This issue was discounted by Mr Png, and considered as an issue weighing against Mr Hanson, i.e. if an apprentice identified the open lid of the industrial bin as a hazard, why didn’t Mr Hanson. Mr Hanson was not made aware of the bin lid being a potential hazard prior to taxiing the aircraft on 3 July 2017.
141 Exhibit “A9”.
142 Note that Mr Kendall considers that there is actually a negative clearance of 0.8m, that has been there for 5 years: Trancript, 24 September 2019, PN1740-PN1744.
143 Transcript, 24 September 2019, PN1968-PN1973; PN1977-PN1982; PN1997-PN2001; PN2007-PN2010; PN2058-PN2060; PN2087-PN2090
144 Transcript, 24 September 2019, PN2188-PN2192.
145 Exhibit R4, Png Statement, Annexure “PYT-26”, p.145.
146 Exhibit R4, Png Statement, Annexure “PYT-27”, pp.148-149.
147 See Mr Png attempting to reinforce these views in Transcript, 18 November 2019, PN5048-PN5049.
148 Exhibit R4, Png Statement, Annexure “PYT-29”, pp.153-161 (Dispute Application), and Annexure “PYT-31”, p.165 (First Incident File Note).
149 Note Transcript, 18 November 2019, at PN5115-PN5124.
150 Transcript, 18 November 2019, PN5137, PN5168-PN5170.
151 Transcript, 18 November 2019, PN5137, PN5178-PN5179.
152 Transcript, 18 November 2019, PN4899-PN4918; PN5016; PN5020-PN5021.
153 Transcript, 18 November 2019, PN5090.
154 Respondents’ written submissions, at [84]-[89].
155 Ibid; Transcript, 18 November 2019, PN6322; PN6581; PN6589; PN6591
156 Respondents’ written submissions, at [79]-[83].
157 Ibid.
158 Ibid.
159 Ibid.
160 Transcript, 18 November 2019, PN6323; PN6337; PN6345.
161 Transcript, 18 February 2020, PN6320.
162 Transcript, 18 November 2019, PN6351; PN6539; PN6654
163 Transcript, 18 November 2019, PN6513-PN6524; PN6534; PN6537; PN6547
164 I note that the SAAB 340 “Aircraft Illustrated Parts Catalogue” uses the term “Cover Assy-Dust” to describe what Mr Hanson refers to as the “dust boot”, and uses the term “Button-plug” to describe what REX engineering refers to as the “yoke plug” (Exhibit R9, Witness Statement of Mark Burgess, Annexure “MB-10”, pp.399-406). In other words, it does not appear as though anyone involved in the Second Incident was using the terms for parts as stated in the Aircraft Illustrated Parts Catalogue.
165 Exhibit R9, Witness Statement of Mark Burgess, Annexure “MB-11”, p.408.
166 Exhibit R9, Witness Statement of Mark Burgess, Annexure “MB-12”, p.410.
167 Exhibit R9, Witness Statement of Mark Burgess, Annexure “MB-12”, p.410.
168 Exhibit R9, Witness Statement of Mark Burgess, Annexure “MB-12”, p.410.
169 Exhibit R9, Witness Statement of Mark Burgess, Annexure “MB-14”, pp.420-422.
170 Exhibit R9, Witness Statement of Mark Burgess, Annexure “MB-14”, p.420.
171 Exhibit R9, Witness Statement of Mark Burgess, Annexure “MB-14”, p.421.
172 Exhibit R9, Witness Statement of Mark Burgess, Annexure “MB-13”, p.413.
173 Exhibit R9, Witness Statement of Mark Burgess, Annexure “MB-13”, p.418.
174 There is no evidence from REX as to who attended the toolbox meeting, or the numbers of relevant employees who attended the toolbox meeting.
175 Exhibit R9, Witness Statement of Mark Burgess, Annexure “MB-16”, pp.445-446.
176 It appears that the file was in a “pages” version from an apple computer program, as opposed to a word version (or “doc” version) for a computer using a Microsoft Office program. Despite emails internally at REX asserting otherwise, I do not consider the file extension issue to be some form obstructionist tactic by Mr Hanson (see emails at Exhibit R9, Witness Statement of Mark Burgess, Annexure “MB-15”, p.4440-443).
177 Exhibit R9, Witness Statement of Mark Burgess, Annexure “MB-17”, p.447.
178 That is, other than in respect of the generic statement that appears on the bottom of all Safety Observation documents.
179 Exhibit A1, Mr Hanson Statement, undated, filed 2 August 2019, at [81].
180 Exhibit A1, Mr Hanson Statement, undated, filed 2 August 2019, at [82]-[84].
181 Exhibit R9, Witness Statement of Mark Burgess, Annexure “MB-14”, pp.431-432.
182 Exhibit R9, Witness Statement of Mark Burgess, Annexure “MB-23”, p.472-473.
183 Exhibit R9, Witness Statement of Mark Burgess, Annexure “MB-24”, p.475.
184 Exhibit R9, Witness Statement of Mark Burgess, Annexure “MB-13”, p.418.
185 Exhibit R9, Witness Statement of Mark Burgess, Annexure “MB-25”, p.477.
186 Exhibit R9, Witness Statement of Mark Burgess, Annexure “MB-27”, “MB-28”, “MB-29”, pp.481-487.
187 Exhibit R9, Witness Statement of Mark Burgess, Annexure “MB-30”, pp.489-490.
188 Exhibit R9, Witness Statement of Mark Burgess, Annexure “MB-31”, pp.492-497.
189 If this freedom of information request had not been made by the ALAEA, it appears that Mr Hanson never would have been provided with a copy of the CASA Safety Observation, or been informed that REX had ever responded to same (pursuant to the REX OSR dated 8 January 2019).
190 Exhibit R9, Witness Statement of Mark Burgess, at [100].
191 Exhibit R9, Witness Statement of Mark Burgess, at [101].
192 Exhibit R9, Witness Statement of Mark Burgess, Annexure “MB-25”, p.477. See also “MB-29”, p.487, and “MB-30”, pp.490-491.
193 Whilst Mr Burgess alludes to the likely closure of the Second Incident SMS Investigation in his letter dated 15 February 2019 (“MB-24”), he does not actually confirm formal closure of same until the meeting on 12 April 2019.
194 The CASA Safety Observation is referred to and relied upon as the basis for the meeting on 30 January 2019 (as per REX’s letter dated 22 January 2019).
195 Exhibit R9, Witness Statement of Mark Burgess, at [111].
196 Exhibit A8, p.14.
197 Transcript, PN5604.
198 Transcript, PN5616.
199 Transcript, PN5675-PN5679.
200 Transcript, PN5694-PN5705; PN5742-PN5744
201 Transcript, PN5772-PN5774.
202 Transcript, PN5604.
203 Transcript, PN5775-PN5810; PN5961-PN5972.
204 Respondents’ written submissions, at [79]-[83]. See also Transcript, 18 February 2020, PN6354-PN6379; PN6405;
205 Exhibit R9, Witness Statement of Mark Burgess, at [117]-[122].
206 Exhibit R9, Witness Statement of Mark Burgess, at “MB-35”, pp.512-519.
207 Exhibit R9, Witness Statement of Mark Burgess, at “MB-36”, pp.521-523, photographs showing corrosion and pitting present; “MB-37”, pp.525-531, photographs showing propeller shaft cleaned of corrosion but pitting still present.
208 Exhibit A1, Hanson Statement, Annexure “SH-18”.
209 Ibid.
210 Ibid. See also “MB-38”, p.533.
211 Exhibit R4, Witness Statement of Mr Png, “PYT-34”, pp.176, 187, 190.
212 Ibid. See also Transcript, 18 November 2019, PN5864-PN5883.
213 Exhibit A4, Witness Statement of Mr Sowter, “GS-24” to “GS-38”.
214 Exhibit R4, Witness Statement of Mr Png, “PYT-43”, pp.236-237.
215 Exhibit R4, Witness Statement of Mr Png, “PYT-44”, pp.239-240.
216 Exhibit R9, Witness Statement of Mark Burgess, at “MB-51”, pp.592-594.
217 Transcript, 25 September 2019, PN2404-PN2446.
218 Exhibit A1, Hanson Statement, “SH-25-1”.
219 Ibid
220 Exhibit A13.
221 Exhibit A13; Exhibit R8.
222 Ibid.
223 Exhibit R8.
224 See also Exhibit A14.
225 Exhibit A14.
226 Exhibit A14.
227 Exhibit A14.
228 Exhibit A12.
229 Exhibit A14.
230 Transcript, PN11-PN39
231 Transcript, PN31.
232 Exhibits R5 and R6.
233 Transcript, PN4580-PN4601.
234 Exhibit R9, Burgess Statement, Annexure “MB-1”, p.124, 137, 139, and 179: REX GSMSM, Clauses 4.6.3, 5.1, 5.3, and 8.6. See also definition of “Just Culture”; see also CASA’s Advisory Publication for safety management systems, “MB-6”, p.384, at clauses 6.2.2 (Safety promotion and safety culture), 6.2.3 (Management role), and 6.2.6 (Motivation).
235 [2019] FWC 3147.
236 Ibid, at [66]-[67].
237 Re SB (2014) 244 IR 127; [2014 FWC 2104, at [41].
238 Exhibit A1, Hanson Statement, at [115], [117]-[118], Annexures “SH-26-1 through to “SH-26-3”.
239 Transcript, 18 February 2020, PN6301.
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