Worrall and Civil Aviation Safety Authority

[2023] AATA 1143

Worrall and Civil Aviation Safety Authority [2023] AATA 1143 (9 March 2023)

Division:GENERAL DIVISION

File Number(s):      2022/10281

Re:Douglas Worrall

APPLICANT

AndCivil Aviation Safety Authority

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:9 March 2023

Place:Sydney

The Tribunal finds that the decision the Applicant seeks to have reviewed is not reviewable by the Tribunal. Accordingly, the application is dismissed pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

..............................[SGD]..........................................

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – civil aviation – jurisdiction – where employer decision-maker holds authorisation from relevant authority – whether Tribunal has jurisdiction to hear application – where decision does not affect applicant’s licence from relevant authority – Tribunal does not have jurisdiction.   

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) sections 25, 42A(4)

Civil Aviation Act 1988 (Cth)

Civil Aviation Safety Regulations 1998 (Cth) regulations 11.015, 201.004, 61.040, 61.395

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

9 March 2023

1. In this matter the Applicant argues that the decision, pursuant to a Cyclical Training Proficiency Program (CTPP) Simulator exercise, in relation to which he was assessed as ‘Option B – Not Clear for Line/Next Training Session’ is a reviewable decision before this Tribunal as a decision of the Civil Aviation Safety Authority (CASA).

2. The person conducting the CTPP simulator test was carrying out that test as an employee of Qantas and in accordance with the requirements of the Qantas program. Qantas itself is authorised by CASA to conduct the program. The person carrying out the assessment is not an employee of CASA, and although in conducting the relevant checks, the person may hold instructor or examiner authorisations from CASA as required by Qantas, the evidence does not support an argument that that person is exercising the privileges of their CASA authorisations in performing the CTPP Assessment.

3. Rather, the evidence is, in my view clear, that the Qantas employee, even though they may hold an instructor or examiner rating from CASA, is in fact acting in his or her capacity as an employee of Qantas.

4. It is useful to examine the provisions of the relevant regulations. The Civil Aviation Safety Regulations 1998 (Cth) (CASR) regulations provide as follows:

   Regulations 11.015 – Definitions:

   "authorisation " means:

   (a)  a civil aviation authorisation other than:

   (i)  an AOC; or

   (ii)  a delegation; or

   (iii)  the appointment of an authorised person; or

   (iv)  an authorisation issued by an ASAO; or

   (b) an approval or qualification of a document or thing under these Regulations, other than a material, part, process or appliance to which regulation 21.305A applies; or

   (c)  a certificate capable of being granted to a person under these Regulations.

   Regulations 201.004 – Review of decisions:

   (3)  Applications may be made to the Administrative Appeals Tribunal for review of a decision mentioned in subregulation (5) that is made:

   (a)  under a provision of these Regulations; and

   (b)  by a person mentioned in subregulation (4) who may make the decision under the provision.

   (4)  For paragraph (3)(b), the persons are the following:

   (a)  an authorised person;

   (b)  an examiner;

   (c)  an instructor;

   (d) the holder of an approval under regulation 61.040, 141.035 or  142.040;

   (e)  a limited category organisation.

5. The Applicant appears to accept that the decision in question is not a decision of CASA, but rather a decision made by an employee of Qantas. However, he argues that the decision should be treated as a decision of Qantas which holds an authorisation from CASA and that accordingly the decision is reviewable.

6. In my opinion, this is simply a step too far. Qantas has a program designed to ensure that the company and ultimately the public can be confident that pilots have the required skills and capacity to safely fly a commercial airplane. It is up to Qantas to determine the standards required and to ensure that its employees meet those standards.

7. On this basis it is an internal workplace issue, and the Applicant’s remedies are those available to him as a Qantas employee, it does not follow that any decisions made by a Qantas instructor are reviewable by this Tribunal because Qantas itself holds a licence or authorisation from CASA.

8. The instructor who conducted the CTPP simulator exercise is not granting or issuing an authorisation as listed in the extract of table CASR 201.004 below:

Table 201.004     Reviewable decisions

Item

A decision...

1

under a provision of these Regulations:

(a) refusing to grant or issue an authorisation; or

(b) cancelling or suspending an authorisation otherwise than on the application of the authorisation-holder; or

(c) varying an authorisation otherwise than on the application of the authorisation-holder; or

(d) refusing to vary an authorisation

1. In my view, the Respondent is correct in asserting that the Applicant already held each of the relevant flight crew authorisations and, despite his assessment result of ‘Option B – Not clear for line/next training session’, continues to hold the relevant flight crew authorisations. No authorisation is being issued, granted, cancelled, suspended or varied in a CTPP simulator exercise. The Applicant is either successful or not in passing Qantas’ training and checking system.

2. A check pilot (the examiner’s position at Qantas) is not listed as a position, or person who can make a reviewable decision under CASR. Neither is he a delegate of CASA. Rather, CASA has issued Qantas with a CASR 61.040 approval for the Qantas training and checking program, and that program is managed entirely by Qantas, which in turn is responsible for its outcomes.

3. In relation to the Applicant’s argument that CASR 61.395 means that the result of his CTPP simulator exercise is a result of an authorisation, it is misconceived. That regulation discusses those things which the holder of a pilot’s licence is authorised to do, it is not the granting or refusal to grant an authorisation.

4. Accordingly, it is not a matter which falls within the regulations set out above.

5. It is, in my view, quite apparent when looking in detail at the relevant legislation and regulations that the decision made by the Qantas Check Pilot in relation to the Applicant’s simulator test, is not a reviewable decision by the Tribunal, and accordingly the Tribunal does not have jurisdiction to adjudicate the matter.

6. It follows, that as the Tribunal does not have jurisdiction, it is not necessary for the Tribunal to determine the application for extension of time.

7. Pursuant to Section 42A(4) the application is dismissed.

I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

.............................[SGD].......................................

Associate

Dated: 9 March 2023

Date(s) of hearing:	8 February 2023
Applicant:	In person
Solicitors for the Respondent:	Ms Carol Swain