PN1

THE COMMISSIONER: Good morning, parties, and please accept my apologies for the late start this morning. If we can commence by taking the appearances, please. So first of all for the applicant.

PN2

MR S HARDY: Good morning, Commissioner, Hardy, initial S, and I seek your leave, Commissioner, to appear on behalf of the applicant Mr Crouch this morning.

PN3

THE COMMISSIONER: Thank you, Mr Hardy. And for the respondent?

PN4

MR J LOVELL: Good morning, Commissioner, Lovell, initial J, seeking permission to appear for the respondent.

PN5

THE COMMISSIONER: All right, thank you, Mr Lovell, and indeed, Mr Hardy, you're granted that permission that you require to appear, and the reasons for doing so will be explained within the decision when that's issued. Now, of course, Mr Hardy, the matter is listed for hearing this morning. Are there any preliminary issues that you wish to deal with before we move into your case?

PN6

MR HARDY: Commissioner, I think there are just two and they relate to documents; one that was sent through by the respondent late yesterday, which I am not entirely sure what was proposed to be done with that document. I note that it sort of has been provided outside your directions for the provision of evidence and documentation material to be relied on by the parties, and the second is a chronology. Given the volume of material that we have before you the applicant thought it might be of assistance to you to have a chronology of key dates and events, which has been circulated to your associate and the other parties shortly before the commencement of this hearing this morning. Other than those two documentary housekeeping matters I don't have any other preliminary matters to deal with.

PN7

THE COMMISSIONER: Thank you, Mr Hardy. In respect of the further statement from Mr Knauer is there anything you wish to say about that; is it opposed or are you seeking time to assess the information which is within it?

PN8

MR HARDY: I would seek to assess - a bit of time to assess the information that's within it, and I suppose may also be assisted just - I wasn't aware that that material was going to be filed the purpose for which the respondent seeks to rely or use that information, and indeed whether in light of that whether Mr Crouch ought to be provided an opportunity to provide some form of response to it. It seems to be an affidavit which simply annexes the document, but it was the first I had heard or knew of that document ought be produced in these proceedings, and I just don't know enough unfortunately, Commissioner, as to what is intended to be done with that document to enable me to form a view as to how Mr Crouch might be able to respond to it. So at this stage I'm not sort of opposing or consenting to its late inclusion, it's more I suppose trying to seek some information from my friend as to what's intended to be done with it.

PN9

THE COMMISSIONER: Thank you for that clarification. Mr Lovell, is there anything you can say in the way of providing information about the purpose of the document?

PN10

MR LOVELL: Yes, thank you, Commissioner. Firstly apologies for the late provision of that second affidavit. As Mr Hardy has said it annexes a single document. That document is a version of the performance improvement procedure that was implemented by Airservices in March of 2017, being the month in which the 2017 Air Traffic Control Enterprise Agreement, which is the immediate predecessor agreement, commenced operation. It's a short document and it's promulgated as a procedure by the respondent to give effect to its obligations under clause 50 of the ATC Enterprise Agreement. I was proposing to tender that statement when Mr Knauer is called to give evidence.

PN11

We seek to rely on the document only for two reasons, Commissioner. The first is to point to the fact that the document was updated with effect from 10 March 2017, as I say being the month in which the 2017 Air Traffic Control Agreement commenced operation, and the relevant update, the second point, is to be found at section 2 of that policy where there's a clarification included to expressly accept or exempt ab initio trainees from this procedure. It's put on for a very limited and confined purpose, Commissioner.

PN12

THE COMMISSIONER: Thank you. Now, Mr Hardy, do you wish to say anything else?

PN13

MR HARDY: No, Commissioner. To the extent that there needs to be any objection I can deal with it at the time that it's sought to be tendered, but at the moment I don't anticipate there being an objection to it for that purpose that Mr Lovell has explained.

PN14

THE COMMISSIONER: Now, fully moving to Mr Hardy's case, Mr Lovell, are there any preliminary issues you wish to raise?

PN15

MR LOVELL: No, Commissioner.

PN16

THE COMMISSIONER: Okay. In that case I propose to move into the body of the hearing, and I will turn to you, Mr Hardy, to put such opening as you wish and to call your evidence.

PN17

MR HARDY: Thank you, Commissioner. I am indebted to your associate for circulating a court book to the parties for the purpose of this hearing. The applicant has filed an outline of submissions, which can be found at page 31 of the court book.

PN18

In summary the applicant's case in these proceedings, which is a dispute under section 10 or clause 10 of the relevant enterprise agreement, being the Airservices Australia (Air Travel Control and Supporting Air Traffic Services) Enterprise Agreement 2020-2023, relates to clause 50 of that enterprise agreement. Clause 50 of that enterprise agreement contains provisions that relate to a number of matters, the first of those matters being the management of an employee's performance relevantly for this hearing - it also deals with conduct, but conduct is not necessarily a part of this hearing - where that performance is unsatisfactory, and the obligations on Airservices to constructively assist the employee to improve their performance and conduct to a satisfactory level within a reasonable time, giving feedback and assistance as is appropriate.

PN19

The first part of the applicant's case will be that during the course of the applicant's training at a time where the respondent Airservices Australia says he was underperforming it has failed to meet the obligation imposed upon it to constructively assist Mr Crouch to improve his performance to a satisfactory level within a reasonable time, giving feedback and assistance as appropriate.

PN20

The clause 50 also deals with requirements for procedural fairness when managing an employee with suspected underperformance, including a number of obligations placed on the respondent to promptly advise an employee of their concerns, to give enough time to be represented in support of performance, to give opportunities to respond and to generally consider that response, to have unbiased considerations, and to take actions and sanctions that are proportionate to the employee's performance and conduct.

PN21

The evidence that will be led by Mr Crouch is that in both the performance management of him during the course of his training, part 1; and part 2, the processes that followed once a decision had been made, or recommendation had been made to terminate his training, will establish that those requirements were not met in both of those instances during his course, and from the point in time where a decision was made to terminate his training during part of phase 2 of that training.

PN22

The consequence of that decision is severe for the applicant. Airservices Australia is the only employer where Mr Crouch can pursue this course and his employment as an air traffic controller. The termination of his training presumably leads to a subsequent process leading to the termination of employment, because one is conditional on the other, and should that follow Mr Crouch's opportunities to go and work at a competitor, to go and pursue this career elsewhere does not exist for him.

PN23

Clause 50 of the agreement then also deals with that aspect which I have just touched on, which is the termination of employment and steps that are required in circumstances where the respondent has serious concerns and what is then required to terminate employment.

PN24

Airservices by way of a jurisdictional objection say that those procedures, as one of their arguments, is that the procedures and obligations imposed under clause 50 don't apply because of a schedule to the enterprise agreement called schedule 1. Bear with me one moment. Schedule 1 is set out for example on page 555 of the court book, and is said to by clause 2 apply to ab initio trainees only, and there's no dispute that Mr Crouch is an ab initio trainee, and it says that to the extent of any inconsistency the schedule applies to the exclusion of other parts of the agreement.

PN25

The schedule then proceeds to deal with two matters. The first is personal and carer's leave, which makes plain in its terms that clause 37 of the agreement does not apply to ab initios. We say those are words deliberately included in there and would have the ordinary meaning of clause 37 not applying to those training group of which Mr Crouch is a cohort, and that rather ab initios in that circumstance will accrue leave in accordance with clause 38.

PN26

The part 4 of schedule 1 is the relevant part, and I only call up part 3 to distinguish it for you, Commissioner, which deals with the termination of employment. It doesn't deal with performance management, it doesn't deal with fair procedures during employment. It deals solely with termination of employment, and not the provisions that I have just taken you to, Commissioner, that require in the management of unsatisfactory performance Airservices Australia to adopt and follow certain steps, and that clause 4 simply says:

PN27

Airservices may terminate the employment of an ab initio if the ab initio fails to satisfactory complete an essential component of training.

PN28

No more, no less than that. And we say that that is distinguished from the way in which for example Airservices deals with personal and carer's leave in the schedule, and to the extent as I have heard this morning my friend intends on relying on the express exclusion that certain performance management processes won't apply under a policy which Airservices included, I'm hearing, in that policy at the same time it was looking at language of certain agreements.

PN29

It is not sought to adopt some other language in schedule 1 of this agreement. It does not say that the performance management processes and requirements of clause 50 will not apply to ab initio employees, and I must say the heading of clause 50 of the agreement makes plain that that clause will deal with a number of things. It will deal with performance, it will deal with conduct, and thirdly termination of employment. While we will accept to the extent there's an inconsistency on termination of employment in schedule 1, schedule 1 applies, it cannot be said that there is any inconsistency in relation to performance and conduct, because it simply isn't dealt with in schedule 1.

PN30

Mr Crouch accepts that the statutory interpretation that ought to be adopted by the Commission is as Airservices contend, which is to adopt the ordinary meaning of words, to consider the language of the enterprise agreement in light of its context and purpose, and to adopt a purposive rather than narrow or pedantic approach to that interpretation, and we say when applying those principles it is clear that clause 50 deals with far more than termination and clause 1 does not deal with performance or conduct.

PN31

The second aspect as to why Airservices says clause 50 and those requirements that I have pointed out to you doesn't apply is that it is a clause that is supposed to be applicable to - sorry, two reasons - assisting an employee who's underperforming return to their performance, and it's said to be through the submissions advanced in this hearing applied to qualify and experienced employees. Again other than those words appearing in my friend's submissions the clause in its terms is not so constrained. That term, that clause applies to all employees.

PN32

Airservices Australia says that it has an obvious application only to qualified ATCs who have successfully completed a full course of training, who have obtained a licence and performed duties, their duties in the field, and that it should not extend to other employees such as ab initio trainees. Again, other than in those submissions there is nothing in that clause that makes it (1) apply to only qualified ATCs who have got certain qualifications and licences. There are no definitions in that clause that pick up such an interpretation; it's simply not there, and that interpretation, in my respectful submission, should not be accepted by the Commission and is wrong.

PN33

We say if there was any intention to exclude ab initio employees the organisation would have done so in that provision, clause 50, or it would have had performance and conduct management included within schedule 1, as it has for other entitlements.

PN34

The evidence that will be led from Mr Crouch will establish to you, Commissioner, to the relevant standard that there has been a breach of that clause two-fold during his training and during his training review processes that followed at a particular point in his training course. These training courses have essentially six phases to them. No magic in how they operate, it's simply you do one phase, you move on to the next.

PN35

Mr Crouch successfully passed phase 1 of his training. His results were impressive. Page 47 of the court book, paragraph 9 of his evidence shows his scores of 92 per cent, 90, 83, et cetera in phase 1. The pass mark for those exams is 70 per cent. He on two occasions scored 66 and 67 per cent in the first attempt on theoretical exams. However, (1) that is not uncommon, and there is comparative data before you, Commissioner, to show how first his fellow course colleagues performed. Also how others who have been, quote, 're-coursed' have performed, and it is not uncommon to see a first attempt failure on a theoretical exam followed by a pass as Mr Crouch did, and on this occasion passed by 70.2 and then 90 per cent for that course of phase 1.

PN36

The phase 1 training is theoretical. Other than drawing out the performance in phase 1 showing the positive way in which Mr Crouch on first instance passed 10 out of 12 at first shot, and then had passed through his supplementaries as afforded to him, it doesn't concern phase 1. Phase 2 is what this dispute is concerned about, and phase 2 has two aspects to it. The first is much like phase 1, a theory or theoretical component to it, but it also contains a practical component. The theoretical component is dealt with by way of examination. The practical component is assessed through what you will see in the evidence as being called periodic tracking.

PN37

When being assessed in the practical sense you can be assessed at various levels; above level, at level, below, below medium, below high. Mr Crouch will give evidence, and the material produced by Airservices confirms is that no employee trainees receive a score of above level. When someone is performing they get at level. The periodic tracking assessment results for Mr Crouch are contained in annexure LC4, which is page 309 of the court book and following, and the Commission will see that on - - -

PN38

THE COMMISSIONER: Which page was that?

PN39

MR HARDY: Apologies, Commissioner, it starts at page 309 and runs to page 321. The Commission will see that in those practical training periodic assessments on seven consecutive occasions between 18 March 2020 and 15 July Mr Crouch was assessed at at level, which on the evidence although above level is available it's not granted. At level is the satisfactory requirement to show that practical component is being met.

PN40

He also received a positive feedback from instructors about his performance, and that can be seen in those same annexures, annexure LC4, where he was told he's had a really good run, he picked up coordination in certain aspects of this. 'You are taking feedback' - and this is important for the purposes of this dispute - 'You are taking feedback and adapting your style very well. Keep it up.' On page 1 of annexure LC4 that he's demonstrating and developing. On page 3 of LC4 that he listens to feedback readily. He's able to adapt his processes, he can suit suggested changes; 5, that he has a mature approach to his own learning. Page 7, displays knowledge in required processes in managing opposite direction standards, and so forth. Page 11, he's worked hard to consolidate his learning and showed satisfactory performance in all learning outcomes, various.

PN41

Unfortunately at that juncture, end of June 2020, Mr Crouch undertook a COVID test and had a fever, symptoms of COVID; attended a medical practitioner, and annexure LC6, which is on page 322 of the court book, are the notes of the general practitioner that he attended, and he was booked off from work given his symptoms, notwithstanding his negative COVID test result.

PN42

Mr Crouch will give evidence that the two weeks of self-isolation had a profound effect on his wellbeing. He couldn't leave his house, his partner was in another state, and found it very difficult with the symptoms he had and the COVID pandemic around him to focus and study.

PN43

He explained his challenges and difficulties to the organisation. He then returned to work from 13 July and sat the test, which was the ASA119 separate standards theory exam that is at the height of Airservices concerns with the progression of Mr Crouch as a trainee in its employ.

PN44

Despite him being away for two weeks, despite informing Airservices of his conditions and concerns, he was not provided, the evidence will establish, with support to assist him pass that exam when returning to work after a two week absence. Evidence will show he was overloaded and operating on a materially compressed timeline. Unsurprisingly he failed that exam, as well as progress evaluation 5, which is a progress evaluation that he undertook in part of phase 2 of his course. I will give you the court book reference. As an example, it appears in many instances, at 1042, and one will see that on 22 July 2020, which is when Mr Crouch returned and sat his ASA119 separation standards exam and on the same day PE5, he had a number of not yet satisfactory results that were detected.

PN45

When we get to Mr Crouch's training review his review proceeded at that point. There was a review which first recommended that his training be terminated, considered only up to PE5, and that is clear from page 1005 where Airservices wrote, 'Luke was placed under review prior to completing the PE6' - which is progress evaluation 6, the practical component, and when one looks at that with the (indistinct) progress evaluation 5 one might think he's not yet satisfactory practically on a number of those things.

PN46

Recommendation was made to terminate his training from the back of that, amongst other things, but when that was corrected and in fact Airservices informed that he had undertaken practical evaluation number 6 you can see that when practical evaluation number 6 appears he's satisfactory in all of those instances by 2. The one that was particularly drawn out in the recommendation to terminate his training maintaining separation, which had four - you will see in that table on page 1042 four not yet satisfactories in a row. By the time he had done progress evaluation 6 that was assessed as satisfactory, yet that was not taken into account at the time that his first training review which recommended the termination of his training was undertaken.

PN47

The failure of ASA119 was with a low score of 45.9 per cent coming off the difficulties of COVID and the lack of training, and we say a failure to meet section 50. There is not any evidence from any witness at Airservices that anyone took account of section 50 or its requirements under section 50. In fact the primary position of Airservices Australia is that that doesn't apply, and when one looks at the treatment of Mr Crouch one can see perhaps how that primary submission is made.

PN48

In fairness to Airservices they do say, Commissioner, that even if it did apply we have done everything anyway that makes it appear - that would make a finding that we've met that standard. That's a legal submission. The evidence does not establish that anyone turned their mind to clause 50 and provided Mr Crouch with that support.

PN49

Following that first failure of 45.9 per cent there was a meeting with Michael Boyd and Chris Watson; Mr Watson the ATC instructor, Mr Boyd the training delivery manager. There was - and this was ahead of Mr Crouch being provided with a second chance - we looked at phase 1 earlier, Commissioner, you will recall, where in two instances he sat a first exam and then failed and passed the next round twice. The same was going to happen with this separation standards exam 119. The support that was supposed to be provided to Mr Crouch to assist him in that second exam was non-existent. Mr Crouch will give evidence that Mr Watson told him that his paper was horrible, it was not worth reviewing together, he was hostile towards Mr Crouch, he was seeming annoyed that he had to attend and try and assist Mr Crouch, and that it was not a supportive environment.

PN50

You will not see before you, Commissioner, any statement from Mr Watson. You will not see before you, Commissioner, any statement from Michael Boyd, the two Airservices representatives charged with that meeting, charged with supporting Mr Crouch and helping him progress to pass his supplementary exam. That is despite very direct evidence on page 50 of the court book that Mr Crouch gives of Mr Boyd and Mr Watson's conduct at that meeting.

PN51

He gives evidence that he was essentially told to review his exam answers alone. He got no specific feedback or debrief. He marked up in his own notes some example questions, but didn't know why he had lost so many marks, and was told to fill this paper in by himself and that there wasn't enough time or interest to go through this and assist him.

PN52

He found the tone hostile and Mr Watson's demeanour in a similar way. He was told it's not worth reviewing this together. That apparently, Mr Crouch's evidence, that there had been that Mr Crouch is aware of formal complaints being made against Mr Watson from others in similar cohorts. Mr Watson is unfortunately not before you for me to test him on those items and to give you evidence.

PN53

The exam paper that Mr Crouch was concerned with needed to identify the best way in solving a problem. There were instances where Mr Crouch through being directed to complete this by himself did so in the best way possible, and you can see at page 930 of the court book the example there where he was handed the trainee TSA workbook, told to complete it himself. As he sat with Mr Watson told him, 'I don't have time to go through this', yet one can see for example on page 944, question 7, Luke Crouch - that's his handwriting in the right-hand column - question mark. He needed to discuss question 7. Mr Watson wasn't prepared to go through this document with him.

PN54

On page 951 Mr Crouch at question 10 doesn't complete that answer, he needs assistance completing it. Question 2 on page 965, another example where Mr Crouch was unsure as to how to best address that question. Notwithstanding those matters remaining outstanding in that way a lot of emphasis is placed by Airservices on the fact that there was a training services agreement that says that that training ahead of his supplementary exam on this very topic that's at the height of this dispute that workbook had been completed - page 927 - Airservices says there had been completion of the trainee workbook. Mr Crouch hadn't completed that and the instructors weren't prepared to discuss it with him. They were hostile to him and he gives evidence of being fearful of victimisation towards him given the approach that was taken by Mr Watson in that meeting with Mr Watson and Mr Boyd.

PN55

Mr Crouch did his best to then in that context study for his supplementary exam, and unfortunately by the smallest of margins at 68.7 per cent, so 1.3 per cent short of the 70 per cent pass mark, fails that exam for the second time, by 1.3 per cent, in a context where up until this point the evidence will show good trainee, no one's perfect, ups and downs on results, but comments are positive, results are positive, he has COVID and he comes back into an incredibly unsupported environment. And that I suppose, Commissioner, is that first aspect of the active lack of training and support that Mr Crouch encountered leading up to that second failure, because essentially at that second failure he stops and gets placed on training review, and I will touch on training review in a moment. So up until that point the dispute that Mr Crouch has got before you relates to particularly the lack of training, the lack of support, lack of assistance and the hostile approach towards him, particularly by Mr Watson and by Mr Boyd.

PN56

Very shortly thereafter, and I'm talking maybe two or three days after that failure, and I should say in addition to that on a practical level Mr Crouch had completed progress evaluation 6, which as I took you to a moment ago, Commissioner, at the time following he had taken the shortcomings up to progress evaluation number 5 and corrected those, page 1042, and was satisfactory in all but two. He was showing like he had ability and improvements.

PN57

He is then placed on what's called a training review, and the training review began around 17 August 2020, and for all intents and purposes, Commissioner, the review processes by way of available appeals and this dispute is ongoing, it has not finished, and we are in as we know April 2022.

PN58

Airservices when putting a trainee under review does an assessment of where they are at, at that particular point in time, and makes a decision. There are four available outcomes; continue training, further training support intervention, to re-course, or to terminate training. When we look at the requirements of clause 50 we see the obligation when someone isn't performing to take proportionate measures to act fairly, to give people prompt responses, to give them prompt opportunities to respond to matters. Mr Crouch is placed on review on 17 August, roughly, 2020. He gets the review report from Airservices Australia in the middle of February 2021, some six months after being placed on review.

PN59

In this time he's sidelined, he's doing nothing. They wouldn't permit him to do other duties like blipping duties which others have done in the past. There's evidence to say it's not routinely done, but Mr Crouch's evidence is that he's done it himself in the past, and he is placed in a very difficult position to deal with this review. The review is undertaken by ultimately a gentleman called Stewart Hunt. The review is littered with errors, which Mr Crouch sets out in writing to Airservices in his letter that is contained - sorry, I should backtrack. The report that was issued dated 17 February 2021, six months after being placed on review, can be found at 996 of the court book. Stewart Hunt is the person who ultimately approves. The report is prepared by Jessica Walton and Emma Schafer.

PN60

Mr Crouch in his letter of 3 March 2021, this is on page 1010, outlines all of the issues that arose out of that review - the errors; the errors by not including his positive results in progress evaluation number 6; the errors which also now on production of material which Mr Crouch had requested at the very first time this report came out, that was denied access to the documentation that it took an order of the Commission to be provided to Mr Crouch, shows that there was errors in what they were taking into account by way of the averages of a course to show what the rest of the class received in painting Mr Crouch in a worse position on a factually incorrect basis.

PN61

Mr Crouch goes into great detail about those in that letter. You will unfortunately, Commissioner, not see a scrap of evidence from Ms Walton, from Ms Schafer or Mr Hunt who signed off on this report and who recommended the termination of Mr Crouch's training. Mr Crouch despite Airservices in taking six months to complete this report was given nine - essentially firstly five business days, and then that was extended by an extra four. Once they'd realised they incorrectly had dealt with progress evaluation 6 and not included it in the report given an extra four days. He was given nine days as against the 180-odd days that Airservices Australia had taken to prepare their review report of him to respond to it. It fails any sense of procedural fairness on any view, particularly under the enterprise agreement.

PN62

Airservices then directs that the review now include be undertaken on a second basis, and a subsequent review be undertaken, which was undertaken by Frank Bosnich where there were still errors contained within it. The report other than including progress evaluation 6, as it ought properly to have been included, and correcting some other minor errors, essentially continues and proceeds along the exact same way as review 1 and continues with the same finding of the termination of Mr Crouch's training. There were errors that were maintained - you do have evidence from Mr Bosnich in these proceedings about the review that was taken.

PN63

Mr Crouch met with Mr Bosnich following that review and gives evidence about a very - which is disputed evidence - about a very unfortunate meeting that he says occurred where he was treated in a very similar way to his feelings of the meeting with Mr Watson by Mr Bosnich. Mr Crouch then files a further review request, an appeal. That's undertaken by the person - Mr Bosnich who I understand the evidence will show commenced in that role almost at the time Mr Crouch lodged his appeal. He had no prior experience with Mr Crouch, he wasn't part of the process with Mr Crouch, he commenced his review, and I understand reported to Steven Clarke.

PN64

Mr Clarke then undertakes his review and upholds the finding. Mr Clarke was invited by the applicant to look into things, to go and review his history thoroughly, to correct errors which after the second training review remained alive in Airservices assessment of him. The review that was undertaken by Mr Clarke upheld the finding, and made conclusions such as Mr Crouch being given a fair and reasonable opportunity to complete courses and so forth, evidence which I will respectfully submit to you, Commissioner, was on the papers only, was hearsay, and I know you're not bound by the rules of evidence, but from our perspective in circumstances where primary decision-makers and people that are actively involved have not been called to give evidence should be given very little weight.

PN65

Mr Crouch is then invited to undertake and was told he would be participating in an independent review undertaken by a panel. The panel that was appointed was none other than another Steven Clarke direct report. The first review undertaken by Mr Bosnich of the outcome, a Steven Clarke direct report. Steven Clarke himself undertaking on the papers review the deficiencies that we will explore, and Mr Crouch then being told he will have an independent panel review. That gets headed up by another of Mr Clarke's direct reports, James Harrington. You will note Mr Harrington is not before you and has given no evidence to you in these proceedings.

PN66

There was a requirement at the end of all of this that should a trainee then still be dissatisfied with an outcome of a review that there be a referral to an independent body, being an employee assistance provider, the employee assistance provider with the name of Converge. Mr Clarke in his statement says that there will be that referral he says for mediation, on page 55 of his statement, which is page 590 of the court book, however there's no requirement to go into any form of mediation. Rather the requirement under the Registered Training Organisation Air Navigation Services Training Manual, which this organisation Airservices is bound by, and I can give you the reference in a moment, Commissioner, requires a referral to the independent AP service provider. Apologies, I will give this reference to you in one moment. If I go to page 156 of the court book - apologies for that short delay - pages 156 and 157 are part of a document that is called the Airservices Registered Training Organisation Operations Manual for Airservices Australia, RTO5168, and commences on page 90 of the court book, effective 25 June 2020.

PN67

Part 13, appellant, i.e. Mr Crouch, can request an independent review. This is the only opportunity that there would be, in our submission, true independence through an employee assistance program. There is then steps 14 and 15 which essentially deal with the coordination of that review. An independent review is then undertaken and then a decision is made and considered final, and the appeal is closed.

PN68

Mr Crouch was told by Airservices to contact these people. He did. When he contacted them they told him that they were not able to undertake that review, and I will give you the specific - that was on 23 June and that EAP was not available, and you will see Mr Crouch's evidence on page 68 at paragraph 129 that subsequently Airservices has modified the appeals procedure in their student handbook, and Mr Crouch continued to maintain his disappointment in the mishandling of his training review and appeals process, and has led this dispute to be continued.

PN69

Mr Crouch has expressed subsequently to Airservices that he would be prepared to be re-coursed, he would take phase 1 again if required on his own initiative. He would sit in courses if that was more preferable to Airservices to get to phase 1 given the effluxion of a lot of time that it's taken in this unfortunate series of events. He has said that he would participate and undertake phase 2, and that in fact if he were to fail one of those exams he'd immediately resign. That has been rejected by Airservices.

PN70

He has also then said what that would mean if he got through all the course. On his final exam everybody as I understand gets two goes at their final exam. If they were to fail the first attempt he says, 'If I then did fail all of those I wouldn't expect any further assistance, I'd immediately resign, and I would then hopefully back myself to get through and complete phases 3 to 6, along with the rest of the cohort.' That is not something which Airservices is prepared to afford him.

PN71

We find ourselves then before you, Commissioner, seeking a determination and consideration of the evidence that Airservices has failed to comply with its obligations, a declaration that it's failed to comply with section 50 in its obligations in the training of Mr Crouch during the course of his training program and in the review process; that despite the requirements under section 50 to do things in certain ways and to act promptly and to offer fairness and to take matters that are raised by a respondent into account genuinely and properly, that those have been breached, and that when looking at the available options, the four available options of continuing training, of being re-coursed or having training terminated, providing extra training support, et cetera, a declaration that compliance with that section 50 would require Mr Crouch to be re-coursed.

PN72

Commissioner, unless you had any questions in opening those would be the opening, and apologies, it was perhaps a little longer than I would usually open. However, there's two parts to this and there's a lot of documentation surrounding it, and I just wanted to make sure that I was highlighting for your assistance the aspects which we will be focusing on, particularly as this case proceeds.

PN73

THE COMMISSIONER: Thank you, Mr Hardy, for that opening, that certainly assisted my understanding of the case. I assume now you propose to call Mr Crouch. Would that be correct?

PN74

MR HARDY: That's correct, Commissioner, I will be calling Mr Crouch to give evidence. I note the time, I'm not sure whether, Commissioner, you would seek to have a morning tea adjournment or - - -

PN75

THE COMMISSIONER: I was about to suggest that, yes. So it's presently about 11.30, if we adjourn maybe until 11.40.

PN76

MR HARDY: That's suitable. Thank you very much, Commissioner.

PN77

THE COMMISSIONER: All right. Thank you very much.

SHORT ADJOURNMENT [11.02 AM]

RESUMED [11.16 AM]

PN78

THE COMMISSIONER: Good morning again. Thank you for that break. Now, Mr Hardy, what I think I should do is probably mark as an exhibit the written submissions that you've made.

EXHIBIT #A1 APPLICANT'S OUTLINE OF SUBMISSIONS

EXHIBIT #A2 APPLICANT'S SUBMISSIONS AND REPRESENTATION

EXHIBIT #A3 APPLICANT'S OUTLINE OF SUBMISSIONS IN REPLY

PN79

MR HARDY: Thank you.

PN80

THE COMMISSIONER: Then we will deal with Mr Crouch's witness statement at the appropriate time. All right, now you wish to call Mr Crouch?

PN81

MR HARDY: Thank you, Commissioner, I call Mr Crouch.

PN82

THE COMMISSIONER: All right. Thank you. Good morning, Mr Crouch. Do you wish to take the affirmation or an oath, we normally request of people.

PN83

MR CROUCH: An affirmation, please.

PN84

THE COMMISSIONER: In that case if you listen to the words that my associate speaks and then speak them back to her, please.

PN85

THE ASSOCIATE: Mr Crouch, would you first please state your full name and address.

PN86

MR CROUCH: Luke William Crouch, (address supplied)

<LUKE WILLIAM CROUCH, AFFIRMED [11.17 AM]

EXAMINATION-IN-CHIEF BY MR HARDY [11.17 AM]

PN87

THE COMMISSIONER: Thank you, Mr Crouch. Mr Hardy, if you can take Mr Crouch through his evidence, please.

*** LUKE WILLIAM CROUCH XN MR HARDY

PN88

MR HARDY: Thank you, Commissioner. Could you please state your full name again?‑‑‑Luke William Crouch.

PN89

And you are the applicant in these proceedings?‑‑‑Correct.

PN90

Mr Crouch, you have filed a witness statement, that is your first witness statement, in these proceedings, and that is a statement dated 8 March 2022; is that correct?‑‑‑Yes.

PN91

Do you have a copy of that statement with you?‑‑‑I do.

PN92

It has annexed to it, and for the purposes of the transcript it appears on page 36 - sorry, it appears on page - I think there might be a typographical error in the index. It says 56, but it's page 46 in the copy that I have, the statement of Mr Crouch. It has attached to it a document list. Do you have a copy of that, Mr Crouch?‑‑‑Yes, I do.

PN93

And that is page 69 of the court book. It then has a series of annexures starting at annexure LC1 which is on page 72 of the court book, and goes through in various numberings, including for example 2A and 2B, et cetera, to annexure LC30, which starts on page 490 of the court book. Do you have those annexures?‑‑‑Yes, I do.

PN94

To the best of your knowledge and recollection is the content of that statement true and correct in every material respect?‑‑‑Yes.

PN95

Is there anything that you wish to change or correct in that statement?‑‑‑No.

PN96

Commissioner, if I may I tender that statement.

EXHIBIT #A4 WITNESS STATEMENT OF LUKE CROUCH WITH 30 ATTACHMENTS DATED 08/03/2022

PN97

Thank you, Commissioner. And, Mr Crouch, you provided a second statement in these proceedings, is that correct?‑‑‑Yes.

PN98

And that is the statement dated 5 April 2022, is that correct?‑‑‑No, it's not 5 April, I'm sorry, Stephen, that's today's date.

*** LUKE WILLIAM CROUCH XN MR HARDY

PN99

Apologies, sincere apologies, it's the date of today. It's dated 28 March 2022?‑‑‑Yes, that is correct.

PN100

And it appears, the first page of that statement, on page 522 of the court book. Do you have a copy of that with you?‑‑‑Yes, I do.

PN101

And attached to that statement is a document list in reply which is on page 530. Do you have a copy of that?‑‑‑Yes, I do.

PN102

And attached to that statement are again a number of annexures that sequentially then start at annexure LC31 on page 531 of the court book, and they go from LC31 through to LC34, again with some of them having As, Bs and Cs, with LC34 commencing on page 540 of the court book. Do you have a copy of each of those annexures?‑‑‑Yes, I do.

PN103

To the best of your knowledge and recollection is the content of that statement, being a statement in reply dated 28 March 2022, true and correct in every material respect?‑‑‑Yes, it is.

PN104

Is there anything that you wish to change or correct in that statement?‑‑‑No.

PN105

Commissioner, if I may I would like to tender that statement in reply.

EXHIBIT #A5 WITNESS STATEMENT IN REPLY OF LUKE CROUCH WITH SIX ATTACHMENTS DATED 28/03/2022

PN106

THE COMMISSIONER: Parties, I just notice that the index to the hearing book is not correct in several respects. So what we will do is regenerate that and provide it to the parties at the appropriate time, and when I say incorrect it seems that the page numbers, some of them at least don't correspond with the identified documents.

PN107

MR HARDY: And apologies, Commissioner, when I was giving you page references before and to Mr Crouch I was giving them based off the index just before.

PN108

THE COMMISSIONER: That's understood, thank you.

*** LUKE WILLIAM CROUCH XN MR HARDY

PN109

MR HARDY: Commissioner, I don't have any questions in-chief for Mr Crouch. I read and rely on the two witness statements with their attachments marked exhibit A4 and exhibit A5.

PN110

THE COMMISSIONER: Thank you. Just one moment, please. Thank you. Now, Mr Crouch, this will be the opportunity for Mr Lovell to ask you questions in cross-examination. Given that we're conducting this through video I just need to point out to you that sometimes there is a delay in the time it takes between the question being asked and when people start to speak. It can be a little bit clunky, and it can also be the case that the line deteriorates. Now, in any respects if there are problems then please let me know and we will obviously arrange for the question to be re-put. Further, what I would just ask you to be respectful of is if you just allow the full question to be asked before you start answering it, so that we have it for the purposes of the transcript, and on that subject the final piece of advice to the parties please don't speak over each other because even worse than a physical presence hearing it becomes possible to transcribe in one of these sorts of hearings. In any event that's the end of my advice, so, Mr Lovell, it's now over to you.

PN111

MR LOVELL: Thank you, Commissioner, and thank you for that guidance.

CROSS-EXAMINATION BY MR LOVELL [11.25 AM]

PN112

Good morning, Mr Crouch. May I take you first to a student handbook that can be found at page 272 of the court book. If you wouldn't mind letting me know once you have that in front of you?‑‑‑Yes, I do, Mr Lovell.

PN113

Yes. This document is a copy of the student handbook that is provided to ab initio trainees such as yourself, correct?‑‑‑Yes.

PN114

Could I take you to page 291 of the court book, please, specifically to section 513 of this document. Please let me know when you have that available?‑‑‑Yes, I do.

PN115

Thank you. Now, from 513 it sets out relevant detail in relation to the arrangements for assessment, and goes on to assessment protocols at 514; that's correct, isn't it?‑‑‑Yes.

PN116

And then at section 515 it addresses the subject of remedial craning, correct?‑‑‑(No audible reply)

PN117

And then at 516 the subject matter of supplementary assessments?‑‑‑Correct.

*** LUKE WILLIAM CROUCH XXN MR LOVELL

PN118

I want to take you to 516 then for a moment. You will see the first paragraph of that sentence, it reads:

PN119

Supplementary assessment is available at the discretion of the training unit to assist students in the assessment process.

PN120

So you would accept that the question of whether a supplementary assessment is afforded in any given unit is a matter for Airservices discretion, wouldn't you?‑‑‑Yes.

PN121

I want to take you to a later section of the student handbook now, Mr Crouch. That can be found at court book 296, and it's the start of section 6 if that assists?‑‑‑Yes, I have it.

PN122

Yes. Now, section 6, I will give you a moment to just review it briefly, it goes over a number of pages. Would you agree, Mr Crouch, that section 6 of the student handbook sets out a very detailed process for academic complaints and appeals?‑‑‑I won't be one moment, Mr Lovell, just having a quick - - -

PN123

Of course. Take your time, Mr Crouch?‑‑‑Yes, I would agree, Mr Lovell.

PN124

Thank you. I wish to take you a different document also annexed to your statement. Now, that is the Air Navigation Services Initial Training Manual. That document starts at 186 of the court book. Can you please go to that now?‑‑‑Yes, I have it.

PN125

And again that's a training manual that was made available to you in your capacity as an ab initio trainee?‑‑‑Correct.

PN126

Thank you. May I take you now to page 216 of the court book, a relevant section of the ATC training manual. If it assists that page is headed 'Training support', section 11 'Training support'?‑‑‑Yes.

PN127

And you will see here that section 11 relevantly sets out arrangements for training support; at 11.2 for training reviews, and there is detail about the training review process. You would accept that, wouldn't you?‑‑‑I'm sorry, can you please state the question again, Mr Lovell.

*** LUKE WILLIAM CROUCH XXN MR LOVELL

PN128

Of course, Mr Crouch. So you would accept that section 11 sets out relevant provision in relation to the provision of training support first?‑‑‑Yes.

PN129

Thank you. And then separately it sets out relevant provisions in relation to the conduct of training reviews?‑‑‑I'm not quite sure about that one, sorry, Mr Lovell.

PN130

I'm happy to repeat the question, Mr Crouch. You will see that section 11.2 in particular sets out the arrangements for training reviews?‑‑‑Yes.

PN131

I would like to take you then to an appendix to this same document, that can be found at court book 267. Please let me know when you have that in front of you?‑‑‑Yes, I do.

PN132

Thank you. And appendix Q - sorry, your computer is slightly faster than mine - I will take one moment, sorry, Mr Crouch. You will see that appendix Q sets out a detailed process for managing and training review in the first instance, correct?‑‑‑I believe so, yes.

PN133

And then also separately from about midway down that page the process for managing an appeal of a training review of the kind that you instituted in this matter?‑‑‑Yes, I suppose.

PN134

Thank you. And would you accept that two documents I've taken you to, the relevant sections of the student handbook and the ATC training manual, set out comprehensive arrangements for managing academic performance issues of ab initio trainees?‑‑‑Yes, I do.

PN135

And there's no mention in any of those processes, is there, of clause 50 of the Air Traffic Control Enterprise Agreement?‑‑‑Not that I can see.

PN136

And there's no reference also to Airservices performance improvement procedure - policy, it's implemented to give effect to clause 50, is there?‑‑‑I'm not aware of that procedure, so I'm sorry, no.

PN137

I want to take you then to your period of absence from work. I accept it's now sometime ago in late June early July of 2020. During your absence from work your training cohorts, the other students in your cohort, undertook the separation standards exam during the period you were absent, didn't they?‑‑‑Correct.

PN138

And that was around 7 July?‑‑‑I'm not sure the date that they took the exam.

*** LUKE WILLIAM CROUCH XXN MR LOVELL

PN139

Okay. And when you returned from your period of two weeks absence your training instructors gave you additional time to prepare for the separation standards exam, didn't they?‑‑‑Yes.

PN140

In fact you were given an additional nine days, such that the exam was held Wednesday in the week following your return to work?‑‑‑Yes.

PN141

Thank you. Before undertaking the exam you were required to sign a training declaration form confirming you were fit and ready to undertake the exam, weren't you?‑‑‑Correct.

PN142

And you signed that training declaration form, didn't you?‑‑‑I did.

PN143

On the first attempt on that exam you scored 45.9 per cent on the exam, is that correct?‑‑‑Yes.

PN144

And the pass mark for that exam was relevantly 70 per cent, wasn't it?‑‑‑Correct.

PN145

So having not passed the separation standards exam in the first instance, Mr Crouch, you were given a further period of time in which to prepare for a supplementary examination, weren't you?‑‑‑Yes.

PN146

And that further period was actually a period of about three weeks, is that correct?‑‑‑Approximately, yes.

PN147

During that period you were provided with written feedback on the separation standards exam that you'd undertaken in the first instance, weren't you?‑‑‑Can you please repeat the question, Mr Lovell, sorry?

PN148

Yes. Mr Crouch, were you provided with written feedback on the first separation standards exam that you had undertaken?‑‑‑No. No, I don't believe so.

PN149

Were you invited to a consultation session with your training instructors at which you had an opportunity to review your exam paper?‑‑‑Yes.

PN150

And you would accept that you were provided an opportunity during that session to raise questions around the exam paper and areas where you might require clarification or support, wouldn't you?‑‑‑No, I do not feel that was the case.

*** LUKE WILLIAM CROUCH XXN MR LOVELL

PN151

Okay. I might take you then to your statement filed in-chief in these proceedings, in particular to paragraph 37 of that statement. I will get you a court book reference in a moment?‑‑‑Yes.

PN152

Court book 53 that is. So at paragraph 36 - - -

PN153

THE COMMISSIONER: Paragraph, sorry?

PN154

MR LOVELL: At paragraph 37, Commissioner, sorry, on court book 53.

PN155

THE COMMISSIONER: All right. Thank you.

PN156

MR LOVELL: Mr Crouch, I just understood you to say that you didn't have an opportunity to raise questions during the consultation session. If you take a moment to review paragraph 37 of your statement do you wish to revisit the evidence you've just given?‑‑‑No. The evidence I've given is that I do not feel that I was given an opportunity. Based on paragraph 37 that you have raised here I've highlighted that I was, yes, not comfortable in that situation.

PN157

But you would accept that there was an opportunity to raise questions and indeed questions about the items you had not completed on the exam were discussed in that session?‑‑‑Yes, I suppose there - there was an opportunity of some sort.

PN158

You would also accept that a training support agreement was put in place at this time, wouldn't you?‑‑‑Yes.

PN159

And that's the third training support agreement that was put in place in respect of your training?‑‑‑Correct.

PN160

And I might return to that subject matter separately a little bit later. I want to take you while we're on your statement conveniently to paragraph 45 and 47. They can be found at court book 54?‑‑‑Yes.

PN161

Now, at paragraph 45 you say you weren't given the opportunity to sit the phase 2 practical examination. That's accurate?‑‑‑Yes.

PN162

And then at paragraph 47 you say you believe you would have passed the phase 2 practical exam if given the chance to sit that?‑‑‑Correct.

*** LUKE WILLIAM CROUCH XXN MR LOVELL

PN163

Now, Mr Crouch, you accept though that you hadn't met the prerequisites for sitting the practical exam, that is successfully completing all of the theoretical units in phase 2, had you?‑‑‑Correct.

PN164

Okay. And at paragraph 47 you refer to your strong performance. Do you see that reference?‑‑‑Yes.

PN165

But would you accept that in referring to your strong performance on progress evaluation 6 there were still two areas where you're assessed as not yet satisfactory?‑‑‑Yes.

PN166

Would you also accept that just several weeks earlier on progress evaluation 5 there were a number of areas, including separation standards, at that time you were rated as not yet satisfactory against?‑‑‑Yes.

PN167

I want to turn now to some questions I have around the notice that you were given of performance concerns during the course of the training. Mr Crouch, from early in the training course you would accept, wouldn't you, that your training instructors formally raised performance concerns with you?‑‑‑I'm not quite sure of the (indistinct) you're asking, if you are referring to training support agreements?

PN168

Yes. So you commenced the course on 11 November 2019, is that correct?‑‑‑Correct.

PN169

And the first training support agreement was put in place on 16 December 2019, the following month?‑‑‑Yes.

PN170

I might take you to that training support agreement now, the first training support agreement. That can be found at court book 914. I appreciate that's somewhere down the document so please let me know when you - - -?‑‑‑Yes, I have it.

PN171

I want to take you to just a couple of aspects of that agreement. In section 1 would you accept - sorry, the document does start on 914, but I will take you over the page to 916, Mr Crouch. Would you accept in the background section to that document that Airservices has communicated that you're not satisfying the performance requirements of a particular unit of the course in December 2019?‑‑‑Yes.

*** LUKE WILLIAM CROUCH XXN MR LOVELL

PN172

And at section 2 of this training support plan would you accept that it sets out a training needs analysis and identifies specific supports that are to be provided to you to assist in remedying your academic performance?‑‑‑It does.

PN173

Would you accept then that at section 3 there is an accommodation of your circumstances sort of in that there is agreement to defer a particular assessment?‑‑‑Yes.

PN174

Thank you. Would you also accept that section 3 of this training support agreement clearly spells out the consequences of not achieving a satisfactory result on the supplementary theory assessment?‑‑‑If by just training review you mean comprehensively then I suppose.

PN175

I will withdraw comprehensively. It sets out the consequences of not achieving the satisfactory result, and that consequence would be a training review?‑‑‑Correct.

PN176

And then at the bottom of this document at section 7 you've signed the document to acknowledge acceptance of this training support agreement?‑‑‑Correct.

PN177

Okay. So is it fair to say, Mr Crouch, that you were well aware of the consequences of failing an exam in the first instance?‑‑‑I'm sorry, can you repeat the question?

PN178

Yes. Is it fair to say that you were aware of the consequences of failing a theoretical exam in the first instance?‑‑‑If those consequences you mean a training support agreement is implemented, then yes.

PN179

I take you to your earlier evidence though, whether a training support agreement is provided and whether a supplementary examination and training support is provided is ultimately a matter for Airservices' discretion, isn't it?‑‑‑That is correct, but in practice my understanding would be that it is always exercised.

PN180

Yes, and in fact in your case, Mr Crouch, a discretion was exercised in your favour, wasn't it, to afford you a supplementary examination and training support agreement in relation to the first (indistinct) the agreement?‑‑‑Correct.

PN181

And would you also - - -

PN182

THE COMMISSIONER: Mr Lovell - - -

*** LUKE WILLIAM CROUCH XXN MR LOVELL

PN183

MR LOVELL: Sorry, Commissioner.

PN184

THE COMMISSIONER: Mr Crouch, I need you to step out of the conference for a moment, please.

<THE WITNESS WITHDREW [11.43 AM]

PN185

THE COMMISSIONER: My associate will let him know when it's time to rejoin. Mr Lovell, I must admit I am having difficulty with the questions that you're asking, just in terms of my understanding. You have been asking questions about whether Mr Crouch understood the consequences of the training support agreement or further non-compliance with the training needs. Now, the difficulty I am having is just understanding where that is spelt out within the training support agreement.

PN186

MR LOVELL: Yes, Commissioner. So what we would say in the training support agreement is that section 2 of the agreement that I have taken you to, which is the first of the agreements, it sets out an analysis of those areas of deficiencies in academic performance, if you like, and the practical - - -

PN187

THE COMMISSIONER: Sure. I'm struggling with the consequence though.

PN188

MR LOVELL: Yes. And then in terms of the consequence - so one of the things the training support agreement is also providing for is the scheduling of a supplementary examination in this relevant unit, and you see that at section 3 of the training support agreement.

PN189

THE COMMISSIONER: I must admit I read that and thought that was simply part of the agreement, not a consequence of further non-compliance.

PN190

MR LOVELL: No, you're right, Commissioner, and in the consequence that I took Mr Crouch to, and I believe he accepted, is that if the supplementary theory assessment isn't passed with a mark of 70 per cent overall and 70 per cent in each topic then the consequence will be a training review, and that's reflected in the constituent documents, if you like, that I took Mr Crouch to earlier in my cross-examination.

*** LUKE WILLIAM CROUCH XXN MR LOVELL

PN191

THE COMMISSIONER: The difficulty with that is that that does not appear to be spelt out within the training support agreement. Now, it might be bleeding obvious to you and others, but it's not to me. So perhaps if you can put that as a specific question to Mr Crouch, please.

PN192

MR LOVELL: I certainly will, Commissioner. It had been my intention that I did, but I will certainly do that perhaps in different terms so that it's very clear as to whether or not Mr Crouch understood that to be the relevant consequence.

PN193

THE COMMISSIONER: It may not be relevant to your case, I don't know, but if it's an important part of your case then it needs to be put unambiguously.

PN194

MR LOVELL: Yes, thank you, Commissioner, and it may prove not ultimately relevant, but we need to I guess meet the case that's put against us in a number of respects, so I will certainly clarify that with Mr Crouch when he returns.

PN195

MR HARDY: Commissioner, Mr Crouch is in the lobby, so when you are ready if your associate could admit him. He's joined, but he's in the lobby.

PN196

THE COMMISSIONER: All right, I can do that. I think I'm technologically proficient, so I will do that.

<LUKE WILLIAM CROUCH, RECALLED [11.46 AM]

CROSS-EXAMINATION BY MR LOVELL, CONTINUING [11.46 AM]

PN197

THE COMMISSIONER: Mr Crouch, can you hear and see me?‑‑‑Yes, I can, Commissioner.

PN198

All right. Thank you. Mr Crouch, it sometimes occurs with these sorts of hearings that I need to clarify matters with counsel, which I have just done. It's obviously a little bit easier if you're actually physically within a hearing room with the Commission. Anyway thank you for your patience and Mr Lovell's questions will continue. Thank you.

PN199

MR LOVELL: Thank you, Commissioner, and thank you, Mr Crouch. I want to take you back to page 916 of the court book, please, Mr Crouch. Please let me know when you have that in front of you?‑‑‑Yes, I do.

PN200

And I want to specifically take you to section 3 which extends from the bottom of page 916 over to the following page?‑‑‑Yes.

PN201

You've got that, Mr Crouch. So at the time you entered into this support agreement you understood that the relevant next step was that you would undertake a supplementary theory assessment for this unit, correct?‑‑‑Correct.

*** LUKE WILLIAM CROUCH XXN MR LOVELL

PN202

That in order to pass that supplementary theory assessment you require a score of at least 70 per cent overall and 70 per cent in each topic as reflected in the table, correct?‑‑‑Correct.

PN203

And that the consequence of you not passing the supplementary theory assessment is that you would be placed on training review, correct?‑‑‑Correct.

PN204

Thank you. That concludes the questions I wished to ask you about that subject matter. I want to now go in a different direction. Mr Crouch, at the time you commenced the air traffic control training course you would accept, wouldn't you, that you didn't have any prior experience in the aviation industry?‑‑‑Correct.

PN205

And it's fair to say then that your air traffic control experience and experience in relation to the training of air traffic controllers is confined to your participation in the training course, correct?‑‑‑Correct.

PN206

In respect of Mr Clarke it's my understanding, but please correct me if I'm wrong, that you say that Mr Clarke, the operational training head's decision in your appeal of the training review was affected by bias. Is my understanding correct?‑‑‑In the training review conducted by Steven Clarke, is that the question?

PN207

I will ask you a preliminary question first, Mr Crouch. Mr Clarke's role as I understand it was to consider your request for review of the second training review report. Is that your understanding of Mr Clarke's role?‑‑‑Yes.

PN208

Do I understand you to be saying in this matter that Mr Clarke was affected by bias in determining your review of the training review process?‑‑‑He may have been, I would make that assumption.

PN209

Okay. Why do you say that Mr Clarke was affected by bias?‑‑‑I have outlined in my submissions some of my reasonings as to why Mr Clarke may have had an opinion or a preconceived idea as to what he should do with the training review, or the review of the training review that I requested. Is there anything other than that you're looking for, Mr Lovell?

*** LUKE WILLIAM CROUCH XXN MR LOVELL

PN210

It's not about what I'm looking for, Mr Crouch. That's fine, I will move on. I want to turn then finally to the delay, and I think Airservices would accept it was an extended delay of the training review process. In respect of that delay you knew though that the college was experiencing a very significant shortage of personnel in 2020 as a result of the COVID-19 pandemic, didn't you?‑‑‑At different stages there may have been some staffing issues, but I did not necessarily become aware of those at the time.

PN211

Okay. And in your witness statement and witness statement in reply you compare the length of your training review against other reviews, don't you; do you recall doing that?‑‑‑I do make some comparisons, yes.

PN212

I think one relevant comparison that you make is that on a four year average there was a shorter period over which training reviews were typically conducted; that's correct?‑‑‑That would be my assumption based on the information provided to me by Airservices, yes.

PN213

But it's true to say that that period of four years takes into account the pre pandemic period where you wouldn't expect training review processes to be affected by the COVID pandemic?‑‑‑I do suppose.

PN214

And you also refer to the instance of a training review conducted in respect of a particular employee Mr Clifford Parkes. Do you recall that?‑‑‑I do believe that's - I try to de-identify where possible, but I do believe there may be Mr Parkes' review in there.

PN215

Yes. But you would accept that Mr Parkes was placed on training review later than you. Indeed that training review occurred in April of 2021?‑‑‑Unfortunately I don't have it on me, but I do believe that he was placed on review later after being re-coursed previously.

PN216

Yes. Commissioner, if you might just give me 30 seconds to confer with my instructor.

PN217

THE COMMISSIONER: Thank you.

PN218

MR LOVELL: Commissioner, so if you bear with me for a moment. That concludes the questions that I have for Mr Crouch.

PN219

THE COMMISSIONER: All right. Thank you. Sorry, I'm just contemplating in terms of one of the previous answer. All right, so thank you. Mr Hardy, is there any re-examination?

PN220

MR HARDY: There is just short re-examination if I may, please, Commissioner. Sorry, Mr Lovell, I don't think you're on mute.

*** LUKE WILLIAM CROUCH XXN MR LOVELL

PN221

MR LOVELL: I apologise.

PN222

MR HARDY: That's okay. I just didn't want you to be having conversations that you didn't want us to hear.

RE-EXAMINATION BY MR HARDY [11.53 AM]

PN223

Mr Crouch, in the questions that were asked of you by Mr Lovell a short time ago he took you to page 296 of the court book. Can you turn to that page, please, and that page is part of what was described and is labelled 'The Student Handbook for Airservices Employees Enterprise Registered Training Organisations 5168'?‑‑‑Yes, I have it.

PN224

He took you in particular to part 6?‑‑‑Yes.

PN225

Could I ask you to look at part 1 of part 6 which is headed 'Equitable'?‑‑‑Yes.

PN226

And if you read, please, the words underneath 'Equitable' about how complaints are to be considered and handled?‑‑‑Yes.

PN227

In terms of your complaints and appeals processes, (audio malfunction) processes have those been met?‑‑‑No. Sorry - - -

PN228

Thank you. Could you please also now turn to what was called appendix Q on page 267, please, Mr Crouch?‑‑‑Yes.

PN229

And I think it was put to you that this set out, and forgive me if I've used the word incorrectly, I don't have a transcript in front of me, but a substantive or a comprehensive process of for example review?‑‑‑Yes, that is what's said.

PN230

Holding that page could I ask you to turn to pages 156 and 157 of the court book, please. Apologies, starting at 154?‑‑‑Yes, I have it.

PN231

That is at paragraph 853 on page 154 and it sets out steps that start at 1 and go through until 19 with a diagram (indistinct); have you got that?‑‑‑Yes, I do.

*** LUKE WILLIAM CROUCH RXN MR HARDY

PN232

Just so that I can understand that your understanding of that is those steps would be read in conjunction in addition to appendix Q for the procedures and evidence retention requirements?‑‑‑Yes, that is my understanding.

PN233

And relevantly that paragraph 13 that deals with a referral to an external employee assistance program. Can you see that?‑‑‑Yes.

PN234

13, 14, 15, do you say those steps occurred?‑‑‑They did not.

PN235

Did you try and make them occur?‑‑‑Yes, I did.

PN236

How?‑‑‑I contacted Airservices in the lead up to these steps occurring to ask for processes on how I could action these steps. I was given some methods to achieve this such as a contact number for the EAP, Converge International, and when I reached this step I was instructed to contact them and they were expecting my call. I did so and found that these steps were not actionable.

PN237

Who told you that?‑‑‑This was told to me by Antoinette Crisara.

PN238

And that was from Airservices. When you contacted the EAP who told you they weren't available?‑‑‑There was another gentleman at the EAP who was my - the first person I spoke to who told me this is not something that they have ever done before and would not be actionable, but (indistinct) to search for a resolution, but we weren't able to find one.

PN239

Thank you. Could you turn, please, to paragraph 37 of your statement, Mr Crouch, which Mr Lovell took you to, which is on page 53 of the court book, and this again is a question of clarification. Bearing in mind I don't have the transcript in front of me I believe - I recall that Mr Lovell was asking you about the meeting on 12 or 13 August 2020 with Mr Watson, correct?‑‑‑Yes.

PN240

And my notes say that that was - Mr Lovell was asking questions about going through an exam paper. But could I ask you just to read paragraph 37, please?‑‑‑Yes.

PN241

Was that the exam paper you were going through in that meeting or was it something else?‑‑‑No, this was not the exam paper, this was a workbook that I completed on my own time.

PN242

And this is the workbook - if you can please turn to page 907?‑‑‑Yes.

*** LUKE WILLIAM CROUCH RXN MR HARDY

PN243

That document that I have just asked you to turn to runs through to page 995 which is a blank page?‑‑‑Yes.

PN244

You've got that document - - -

PN245

THE COMMISSIONER: When does the document start?

PN246

MR HARDY: Apologies, Commissioner. It starts on page 930 of the court book, and it runs - - -

PN247

THE COMMISSIONER: Thank you.

PN248

MR HARDY: - - - and runs to page 995, which in my copy is blank. Is that the same with yours, Mr Crouch?‑‑‑Yes, it is.

PN249

THE COMMISSIONER: I now have that, thank you.

PN250

MR HARDY: Thank you, Commissioner. Is this the workbook, when you say in paragraph 37 and the questions that you were asked about that you were trying to go through in that meeting?‑‑‑It is one of the workbooks. Unfortunately I was provided with two identical workbooks as part of the additional training that I had received, or the additional support, and unfortunately I am unable to determine whether this is the first or second of those two workbooks as I completed them both in very similar ways.

PN251

And if you go to page 944, please, of that document?‑‑‑Yes.

PN252

There's a question mark at question 7. Whose handwriting is that?‑‑‑That is my handwriting.

PN253

And what did that indicate?‑‑‑That I was unaware of what the answer might be and it was a bit of a guess and that's - I hoped to try and resolve that at a later date.

PN254

Were you able to?‑‑‑No, I don't believe so or I would have made notes on the document.

PN255

And if you go to page 951, please, question 10, got a line?‑‑‑Yes.

*** LUKE WILLIAM CROUCH RXN MR HARDY

PN256

Whose handwriting - do you recognise that, whose handwriting is that?‑‑‑Still unfortunately my handwriting.

PN257

And what were you intending to do with question 10?‑‑‑It was another where I was unsure of the answer that was required and needed follow up at a later date.

PN258

Were you able to do so?‑‑‑It doesn't appear so given there is no text.

PN259

Why do you believe that's the case?‑‑‑If I was able to get an answer for it, as this was the only material provided to me by Airservices to assist me in completing the ASA119 exam, I would have made notes on this so that I could refer back to it in my own preparation for the exam.

PN260

THE COMMISSIONER: Can I just check that answer, please. You say that if you had received feedback you would have made notes. Now, given that this is the document which is before me are there notes that you have made on this document?‑‑‑There I believe are a couple of notes that I've made where I have crossed out words or - and added new sections. So you can possibly see this on page 955, question 6 and question 7, where the previous line would have been incorrect and I've crossed it out to add notes later.

PN261

Thank you. Mr Hardy, please proceed.

PN262

MR HARDY: Thank you, Commissioner. In relation to that document at 930, the workbook, if I take you to paragraph 26 on page 50 of the court book, it's 26 of your statement, and what then follows on from that - you might just read 26 up until the end of paragraph 30?‑‑‑I won't be a second, sorry, Mr Hardy.

PN263

Take your time?‑‑‑Yes, okay.

PN264

And that document we just looked at, being the page 930 workbook, it's that document that's to be read in the context with those paragraphs, correct?‑‑‑Yes, that is correct.

PN265

You were taken to paragraph 47 if you could look at that, please, about your strong performance, I think Mr Lovell called out that on progress evaluation 6. If I can ask you to turn, please, to page 1042, because I think that - I will just get you to look at that document?‑‑‑Yes.

*** LUKE WILLIAM CROUCH RXN MR HARDY

PN266

Is that the document you refer to when you say you've had a strong performance on progress evaluation 6?‑‑‑Yes, this is one of the documents.

PN267

And in relation to Mr Lovell pointed out there were two NYS's and the first one was interpreting and evaluating traffic events, and the second was telephony. Can you explain to the Commissioner how one gets the distinction between 'S' and 'NYS' as far as you understand it?‑‑‑Yes. So during assessments these are pre-recorded runs that are run through with the instructor seated behind a student silently. They take notes of everything that the student does, makes any sort of judgment. Unfortunately this system is an error-based system where a single error or even something that's close to an error, or something that's not perfect can result in a not yet satisfactory result. For example in the telephony section where I've received not yet satisfactory in PE6 this may have been a simple saying a word in the wrong order, which may have been corrected, but saying it in the wrong order in the first instance results in a not yet satisfactory result. This - this sort of result for PE6 is not unusual. In fact having only two not yet satisfactories at that point in the training course is very low compared to the average. Therefore I considered it a strong - strong performance.

PN268

Yes, thank you. So the 70 per cent as it were pass marks to put people on pass or et cetera, are you saying that doesn't apply to this sort of training, this is an all or nothing?‑‑‑That is correct, and these progress evaluations are not assessments per se, but they are just an indicator as to what may be expected for the final exam at phase 2, being a practical exam.

PN269

You say in your evidence that based on that strong performance and your theory exams you would have passed the phase 2 practical; that's just your belief of that?‑‑‑Yes, that is correct. I also take into consideration making that statement some of the verbal feedback that I received from my instructors at the time.

PN270

And if you look at that same document that we were just looking at a moment ago with PE6 on it at 1042 that also has PE5 that Mr Lovell showed you with the number of NYS's. Do you recall when you participated in that assessment?‑‑‑Yes, that assessment was within a few sort of days of me returning from my two weeks of leave.

PN271

When you say leave is that - what sort of leave was that?‑‑‑That was the COVID leave where I was forced into isolation for two weeks as a result of my fever and awaiting test results.

*** LUKE WILLIAM CROUCH RXN MR HARDY

PN272

Thank you. You were taken to a series of training services agreements, TSAs I think they are called. There was three of them, the first of which starts on page 914 of the court book. That's what is called TSA number 1. Have you got that, Mr Crouch?‑‑‑I do, yes.

PN273

918 is TSA number 2, and TSA number 3 is on 924. Have you got those three?‑‑‑Yes, I do.

PN274

Just so that the Commission understands, and let's start with TSA1 which you were taken to at 914, in terms of the content and the circumstances of signing this document did you have any concerns at the time?‑‑‑I had some concerns signing the TSA1.

PN275

In what way?‑‑‑So I still had some concerns that I hadn't yet fully grasped the content that they wanted me to grasp in the lead up to that exam, but I decided to sign it anyway as I'm sort of put in a position when they present you with these documents to sign them and it's not really an alternative if you wish to progress in training.

PN276

Is that what's put to you in that way?‑‑‑It's not explicitly stated that way, but they - they do say things to the effect of, you know, you need to complete this exam in order to progress, and the only method forward for completing an exam is signing a training support agreement.

PN277

All right. Mr Lovell finally asked you some questions about your prior experience, and I think you acknowledged that you didn't have prior experience in the industry, correct?‑‑‑Correct.

PN278

Was Airservices aware of that?‑‑‑Yes, they were.

PN279

Who did you tell?‑‑‑Quite a number of people. It initially came up during my interview stage, which began some months before I began at Airservices. I raised concerns about not having aviation experience, considering many of the other people who were present at the assessment centre day did have aviation experience, but I was informed at the time that that wouldn't be a problem and everything will be fine. They're going to provide me all of the necessary training in due course if I were to be accepted at the time, which I later was.

PN280

All right. Give me one moment. I'm just checking one more thing if I may. If I could ask you - you were asked I think by Mr Lovell and you (indistinct) answer his question about bias, and the answer was hasn't answered it. Could I ask you just to look at paragraph 67 of the court book and paragraph 120 of your statement. Tell me when you've just read that paragraph?‑‑‑Yes.

*** LUKE WILLIAM CROUCH RXN MR HARDY

PN281

And if you can go to page 527, paragraph 26 of your statement, and can I ask you to read paragraph 26, please?‑‑‑Yes.

PN282

Mr Lovell asked you about whether you felt Mr Clarke's decision was affected by bias. Reading those two paragraphs how would you answer that question?‑‑‑I would make that assumption, or at least know that there was a conflict involved that was made specifically with the intention of arriving at the outcome that they did.

PN283

Thank you. And finally you were asked about one of the students who you said you were trying to keep names confidential, and I thank you for that, a review that was done in 2021. Do you remember those questions?‑‑‑Yes.

PN284

The COVID pandemic was around in 2021 for the sake of stating the obvious, wasn't it?‑‑‑It was.

PN285

I have no further questions, thank you, Commissioner.

PN286

THE COMMISSIONER: Thank you, Mr Hardy, and thank you, Mr Crouch, for giving your evidence today, which obviously is appreciated. You're released as a witness and we will move on to the respondent's case.

<THE WITNESS WITHDREW [12.16 PM]

PN287

THE COMMISSIONER: I should just check with you, Mr Hardy, there are no further witnesses from your party, are there?

PN288

MR HARDY: There are no further witnesses, Commissioner. That is the applicant's case. Thank you.

PN289

THE COMMISSIONER: All right. Thank you. Very well, in that case, Mr Lovell, what I propose to do is take an early lunch and maybe resume at perhaps about 1.30. Would that be suitable with you?

PN290

MR LOVELL: That's certainly suitable, Commissioner. I might just foreshadow that I propose, unless you have specific questions, to defer making submissions until after you've heard Airservices evidence. I think it will be the most efficient and productive use of our collective time if we hear the evidence first.

*** LUKE WILLIAM CROUCH RXN MR HARDY

PN291

THE COMMISSIONER: Okay. I understand that. All right. Very well, we will now adjourn. Thank you.

PN292

MR HARDY: Sorry, Commissioner, before you rise could I just ask so that I'm organised and prepared in my ordering if Mr Lovell might be able to outline the order of his witnesses.

PN293

MR LOVELL: I'm certainly happy to do that. Commissioner, I propose perhaps consistent with the narrative of our submissions to first turn to Mr Knauer, then to Mr Clarke, then to Ms Crisara, and finally to Mr Bosnich.

PN294

MR HARDY: Thank you very much. I appreciate that, thank you.

PN295

THE COMMISSIONER: Thank you very much, we will now adjourn.

LUNCHEON ADJOURNMENT [12.17 PM]

RESUMED [12.24 PM]

PN296

THE COMMISSIONER: Good afternoon, parties. Thank you for rejoining. Mr Lovell, it's the start of your case.

PN297

MR LOVELL: Thank you, Commissioner. As I foreshadowed before the luncheon adjournment I'll defer making submissions until the evidence has been received. I propose first to call Mr Marcus Knauer.

PN298

THE COMMISSIONER: All right, thank you, we'll admit him. Good afternoon, Mr Knauer. You can hear and see me in an acceptable format, I hope?

PN299

MR KNAUER: I can certainly hear you. And now I can see you, thank you.

PN300

THE COMMISSIONER: All right, thank you. Mr Knauer, we need to affirm or have you take the oath. Do you have a preference as to which that may be?‑‑‑I'll give an affirmation.

PN301

All right, thank you. In that case, if you listen to the words my Associate speaks to you and then if you repeat those words back to her, please.

PN302

MR KNAUER: Sure.

PN303

THE ASSOCIATE: Mr Knauer, could you first please state your full name and your address, noting it can be your place of employment.

PN304

MR KNAUER: Marcus James Knauer, 197 Airport Drive, Eagle Farm, Queensland.

<MARCUS JAMES KNAUER, AFFIRMED [12.26 PM]

EXAMINATION-IN-CHIEF BY MR LOVELL [12.26 PM]

PN305

THE COMMISSIONER: Thank you, Mr Knauer. I turn to you for taking Mr Knauer through his evidence please.

PN306

MR LOVELL: Thank you, Commissioner. Good afternoon, Mr Knauer. You've given two statements in this proceeding. Do you have the first of those statements dated 11 March 2022, in front of you?‑‑‑I do.

PN307

That statement contains paragraphs 1 to 21 inclusive?‑‑‑It does.

PN308

And it exhibits attachments MK01 to MK06 inclusive?‑‑‑That is correct.

PN309

Are you able to confirm that your statement is true and correct in all material respects?‑‑‑It is true and correct (indistinct).

PN310

Commissioner, I tender the first of Mr Knauer.

PN311

THE COMMISSIONER: Thank you. Please bear with me for one moment. I'm just having difficulties locating that.

PN312

MR HARDY: Commissioner, if I may check with Mr Lovell. The copy that I've got is an unsigned copy. Is there a signed that I should be referring to, or is it that which you've asked Mr Knauer about?

PN313

MR LOVELL: Mr Hardy, there is a signed copy. I think that the unsigned copy is included in the court book though, so for ease of reference from 578 I propose to work from that version of the statement for today's purposes.

PN314

MR HARDY: All right, thank you.

*** MARCUS JAMES KNAUER XN MR LOVELL

PN315

THE COMMISSIONER: Thank you. Just bear with me for one minute, please.

PN316

MR LOVELL: Of course, Commissioner.

PN317

THE COMMISSIONER: Thank you. The first statement of Marcus Knauer with six attachments will be marked as exhibit R1.

EXHIBIT #R1 FIRST STATEMENT OF MARCUS KNAUER WITH SIX ATTACHMENTS

PN318

MR LOVELL: Thank you, Commissioner. Mr Knauer, may I take you to your second statement made on 4 April 2022. Do you have a copy of that second statement before you?‑‑‑I do.

PN319

That statement contains paragraphs 1 to 4, inclusive?‑‑‑It does.

PN320

And exhibits one annexure marked MK07?‑‑‑That's true.

PN321

Are you able to confirm that your statement and attachments are true and accurate in all material respects?‑‑‑Yes, they are.

PN322

Commissioner, I tender the second statement of Mr Knauer.

PN323

THE COMMISSIONER: Thank you, the second of Marcus Knauer with one attachment will be marked as exhibit R2R.

EXHIBIT #R2 SECOND STATEMENT OF MARCUS KNAUER WITH ONE ATTACHMENT

PN324

MR LOVELL: Thank you, Commissioner. I don't have any questions for Mr Knauer by way of examination-in-chief.

PN325

THE COMMISSIONER: Thank you. In that case I'll turn to Mr Hardy for cross-examination. Mr Knauer, I just need to let you know that given we are dealing with this matter through video you just need to listen carefully to the questions and make sure that you allow the full question to be asked. It pays not to speak over the top of each other, just simply for the purposes of the transcript. If at any stage you're not sure what the question might be then just say that back to Mr Hardy, please?‑‑‑I'll (indistinct), Commissioner.

*** MARCUS JAMES KNAUER XN MR LOVELL

PN326

All right, thank you. Mr Hardy?

CROSS-EXAMINATION BY MR HARDY [12.29 PM]

PN327

MR HARDY: Thank you, Commissioner.

PN328

MR LOVELL: Commissioner, just for completeness, that was the statement which I think I'd alluded to earlier, that's the second statement of Mr Knauer that was filed yesterday, and I indicated that at the outset I had no objection pending having a discussion, and I maintain that. There's no objections from us in relation to the tendering of this document.

PN329

THE COMMISSIONER: Thank you.

PN330

MR HARDY: Mr Knauer, if I can focus please on your first statement which starts at page 578 of the court book, do you have a copy of that with you?‑‑‑I do.

PN331

You prepared that statement carefully, I assume?‑‑‑I have.

PN332

You were aware that they'll be used in these proceedings before the Commission?‑‑‑I was.

PN333

Am I correct that you've sought to include every relevant matter that you wish to raise in the proceedings before this Commission, within your statement?‑‑‑Yes, I have.

PN334

Thank you. You were involved in the negotiations for the 2017 enterprise agreement, which I think you define in your statement on page 578 as the 2017 ATC EA, is that correct?‑‑‑That is correct.

PN335

You've also included within your second statement, and that is the statement of yesterday, a performance improvement procedure that is said to be effective, 10 March 2017, correct?‑‑‑That is correct.

PN336

Following the 2017 ATC EA, which I might call the prior enterprise agreement, there was a negotiation for the new, or current enterprise agreement. That's what is termed the Airservices Australia (Air Traffic Control & Supporting Air Traffic Services) Enterprise agreement 2020-2023. You've defined it as current ATC EA, correct?‑‑‑It is.

*** MARCUS JAMES KNAUER XXN MR HARDY

PN337

That commenced operation on or about 21 April 2020?‑‑‑I believe so.

PN338

Yes. Sorry, that's not a trick question. It's in your statement on page 578. You were not a bargaining representative for the negotiation of that enterprise agreement, were you?‑‑‑I was involved but not as a lead negotiator.

PN339

Sorry, just if you'd listen to my question please. You were not an appointed bargaining represent for the negotiation of that enterprise agreement, were you?‑‑‑I was not.

PN340

I beg your pardon?‑‑‑I was not.

PN341

But you were appointed by the new representative for the 2017 agreement, correct?‑‑‑That is correct.

PN342

So, there are two headings on page 578. If you could just have a look at the second heading, please. It says, 'Involvement in bargaining for current EA.' Do I take it that that's a mistake and that what that should say is, 'Bargaining for the 2017 EA'? Don't let me rush you. Read the two paragraphs that follow to see if what I've said is correct?‑‑‑Starting which paragraph, please?

PN343

I beg your pardon, paragraphs 6 and 7 under the heading, 'Involvement in bargaining for current EA', on page 578 of the court book, Commissioner?‑‑‑May I ask you a question for clarification?

PN344

No, if you wouldn't mind answering my question which is just, should that heading say, 'Involvement in bargaining for the 2017 enterprise agreement', or are you saying that that heading is correct?‑‑‑That is correct, that heading.

PN345

The heading is correct, all right. And the current EA, as we've discussed, is the EA that was in - is in place from 2020 to 2033?‑‑‑Correct, and I was involved in those negotiations.

PN346

But what follows under that heading, Mr Knauer, is what you did between paragraph 6, 2008 to 2016, correct?‑‑‑As my role as an Air Traffic Line Manager I was employed in that role, yes.

PN347

Sorry, but that's not my question.

*** MARCUS JAMES KNAUER XXN MR HARDY

PN348

THE COMMISSIONER: I think what Mr Hardy is putting to you is that the heading is wrong?‑‑‑Okay. So that could read - yes, on re-reading it, that heading could be incorrect, yes.

PN349

MR HARDY: Thank you. It's not to trick you, it's just so we can be clear before the - and to assist the Commission to be clear that your involvement in this bargaining when you're giving your evidence about a bargaining representative and what follows in 6 and 7, relates to what you were doing in relation to the 2017 enterprise agreement and not the current enterprise agreement that we have before us at the moment?‑‑‑That is correct.

PN350

Thank you. The 2017 enterprise agreement, the evidence that you give in your first statement and the six annexures that follow, all relate to your involvement in the negotiation for the 2017, so the prior enterprise agreement, correct?‑‑‑That is correct.

PN351

And you know that that agreement has been replaced entirely with a new enterprise agreement, correct?‑‑‑It has, yes.

PN352

Are you aware as to whether there were employee bargaining representatives for the bargaining of that new enterprise agreement? Like, you were in the 2017 agreement. Were there similarly employee bargaining representatives for the current 2020 enterprise agreement?‑‑‑Yes, there was.

PN353

Who were they?‑‑‑I was one of those bargaining representatives, representing - - -

PN354

THE COMMISSIONER: Mr Hardy, I heard your question to be whether he was an employee bargaining representative? Was that correct?

PN355

MR HARDY: Well, he's a bargaining representative.

PN356

THE COMMISSIONER: Before we go on with the questions I just want to understand your question. So, the question was not 'employee' bargaining representative, but your question was whether he was an 'employer' bargaining representative, is that correct?

*** MARCUS JAMES KNAUER XXN MR HARDY

PN357

MR HARDY: Commissioner, I may have used the word, 'employee', in my last question. I withdraw that question and just ask the question as to whether Mr Knauer is aware of bargaining representatives that were in place or appointed for the 2020 enterprise agreement.

PN358

THE COMMISSIONER: Of course there were bargaining representatives. An agreement doesn't get approved unless there has been. I think you're asking, was he an employer bargaining representative?

PN359

MR HARDY: I was going to ask, 'employer', and then, 'employee.' But I think his answer to those earlier was no, but - and he started to answer the question, Commissioner, to say that, yes, he was, so we'll need to (indistinct) transcript.

PN360

THE COMMISSIONER: Sure. With respect, I'm the one that's got to make sense of all this evidence, so if you could put the questions again, precisely, please.

PN361

MR HARDY: Certainly. Apologies, Commissioner. I will. Mr Knauer, were you aware of bargaining representatives on behalf of Airservices for the current 2020 enterprise agreement that were appointed as bargaining representatives for the company?‑‑‑Yes, I was.

PN362

Yes?‑‑‑Yes.

PN363

You were not one of those, correct, for 2020?‑‑‑I was one of those, an employer representative.

PN364

Where in your statement do you say that, that you had any involvement in that capacity in the 2020 current enterprise agreement?‑‑‑That does not appear in my statement.

PN365

Why not?‑‑‑I prepared the statement on the basis of the main matter relating to when the having to show cause was introduced into the enterprise agreement.

PN366

So you were formally appointed as a bargaining representative on behalf of Airservices for the 2020 enterprise agreement?‑‑‑I was, yes.

PN367

Did you sign a document confirming that appointment?‑‑‑I don't recall signing a document.

PN368

Commissioner, I call for any such document.

*** MARCUS JAMES KNAUER XXN MR HARDY

PN369

THE COMMISSIONER: Time and place? Mr Knauer, I'm going to ask you to drop out of the conference, if you could, for hearing, and before you do that I'll just give you some instructions about how to rejoin. What I wish to do is ask some questions of counsel about the questions and clarify what is expected. So, Mr Knauer, what I'll ask you to do is to leave the conference but then within a minute or two, press on the same link that we gave you previously and that will bring you back into a holding bay and we'll bring you into the hearing when it's appropriate to do so, okay?‑‑‑Yes. Yes, Commissioner. Thank you.

PN370

All right, thank you.

<THE WITNESS WITHDREW [12.41 PM]

PN371

Mr Hardy, I will come to the calling for the document in a moment but first I just wish to clarify the questions. I think there's starting to be a bit of confusion on the part of the witness as to the very subtle but important legal distinction between a person who is a bargaining representative for the purposes of the Fair Work Act 2009, and a person who is part of the employer bargaining team.

PN372

It seems to me that you are asking one question and he's answering another. I just wish to clarify really where the question is going.

PN373

MR HARDY: Certainly. Commissioner, as I understand and apprehend the case that's going to be put on behalf of Airservices, particularly in relation to the jurisdictional objection, I apprehend that the material that is going to be relied on is this material of Marcus Knauer, which as filed is evidence in relation to the bargaining and negotiation and his involvement in those processes for an enterprise agreement that it has been replaced.

PN374

I'm just seeking to clarify that the evidence that he has given in his statement all appears, despite - which I think we've worked out as an incorrect heading, that heading of 'Currently', has nothing to do with the current EA but is all about the 2017 prior agreement, and where that is heading on my case is that there would have been, as you correctly say, Commissioner, bargaining representatives involved at the time that the current 2020 enterprise agreement was entered into.

PN375

So, insofar as my friend seeks to make submissions about what the parties thought about and discussed and bargained at that process, in my submission I'd be putting to you, Commissioner, that the appropriate person that we ought to be hearing from and giving evidence of are not people that can talk about what happened in agreement prior to, which is all this evidence deals with, but rather those that were actively involved in the negotiation and bargaining for the 2020 agreement, and seeking to confirm and clarify with Mr Knauer he was not one of those in the same capacity, as he was at the 2017 agreement which his statement is solely concerned with.

*** MARCUS JAMES KNAUER XXN MR HARDY

PN376

THE COMMISSIONER: You're not putting a question to him of whether he was an employee bargaining representative, are you?

PN377

MR HARDY: I was first going to ask him if he was an employer bargaining representative, and if the answer to that question was no, whether he, notwithstanding, negotiated this agreement on behalf of a group of employees of which were to be covered by this enterprise agreement in any way. I think the answer to both of those questions is no. But I'm seeking to have him confirm that.

PN378

THE COMMISSIONER: I'm confused to a point. But the confusion is probably what happens to the minds of people who approve enterprise agreements, and I'm one of them. If you approve enough of these agreements and you see enough bad practice, you start wondering what an earth people are being advised, and I'm not suggesting there was bad practice in this respect.

PN379

But when I go to section 176 of the Act, it talks about bargaining representatives in subsection (1), and the title of the section is for bargaining representatives for proposed enterprise agreements that are not Greenfields agreements, and this is obviously not one of them. Subsection (1) deals with non multi enterprise agreements. It's more distinct than that but for the purposes of this, subsection (1)(a) then refers to an employer as a bargaining representative, and an employer organisation as a bargaining representative; and then an employee bargaining representative is dealt with in section (1)(c). And then 1(d) deals with an employer bargaining representative.

PN380

If you want to put a precise question to him on the subject and you obviously can do that, but ultimately as I said before, and I'm the one who's got to make sense of this evidence, I'm not quite sure where it takes me. Because it's quite common that you have a bargaining team, and I can think of a matter which I'm dealing with right now where there is a bargaining team and there's only one employer bargaining representative, but there's probably five or six others who are part of a bargaining team but they're not the one who receives that certification under 176(1)(d). I just point that out to you.

PN381

The other thing I point out of you, as well, is that switching back to my second 39 jurisdiction, it's not uncommon that you have a circumstance where the words which are part of the dispute first appear two generations, three generations, four generations in an agreement past. That doesn't mean that we can't get to a conclusion that there's some sort of admissible evidence that is taken into account in the construction of the current agreement. Does that assist?

PN382

MR HARDY: Quite so, Commissioner. I suppose where this evidence is all about the 2017 agreement, and there is no evidence about how that translates into the 2020 enterprise agreement, I just don't know how you could place, with respect, any weight on this evidence whatsoever. There is nothing in here, as I read it, that links what happened in 2017 into 2020.

PN383

MR LOVELL: Just in - - -

PN384

MR HARDY: There's nothing - - -

PN385

THE COMMISSIONER: Yes, Mr Lovell?

PN386

MR LOVELL: I apologise. I thought Mr Hardy had paused and I apologise for cutting across. If it might assist, this appears to me to be properly a matter for submissions as to what weight is to be given to the evidence.

PN387

MR HARDY: I appear to have lost the Commissioner at my end. I'm not sure if that is something that others are experiencing.

PN388

MR LOVELL: Yes, I'm - - -

PN389

THE ASSOCIATE: I too have lost the Commissioner.

PN390

MR HARDY: All right, thank you, Associate. I'll just - - -

PN391

THE ASSOCIATE: So parties, just pause for a moment.

PN392

MR HARDY: Thank you.

PN393

THE ASSOCIATE: Parties, the Commission is adjourned.

SHORT ADJOURNMENT [12.48 PM]

RESUMED [12.52 PM]

PN394

THE COMMISSIONER: Hello, again. If I sound a bit tentative it's because after rebooting my computer, it's still very fragile, which is very odd. I'm having a problem on my computer but my Associate is not, and the reason for mentioning this is just if you perceive any problems and if you could let me know.

PN395

Mr Lovell, my line dropped out just as you were starting to explain something, so perhaps if you'd turn back to your - - -

PN396

MR LOVELL: Thank you, Commissioner, and it was just two points that I wished to raise to assist perhaps in efficiently resolving the issues. The first is the (indistinct) your question of the relevance of evidence about bargaining for the 2017 agreement, I would say is properly a matter to address you on by way of submission.

PN397

In respect of the second issue being raised, Commissioner, I fear that your concern that the witness might not understand the questions that are being put is well founded. Obviously, as the Commission has taken us to, section 176(1)(a) of the Act contemplates that an employer itself, and they're the bargaining representative for the agreement, paragraph (1)(d) of that same section contemplates the express appointment of employer bargaining representatives, but an employer need not employ anybody as a bargaining representative because it, itself is a bargaining representative for the purposes of the agreement.

PN398

If it assists Mr Hardy in preparing any further questions he wishes to ask, I am aware that it's Airservices practice simply to service its own bargaining representative. It doesn't have a practice of formally appointing individuals as bargaining representatives but instead, Commissioner, as you contemplated, appoints a team of senior managers such as Mr Knauer to undertake the bargaining on its behalf. I thought I might mention those points in case it was of assistance in framing the questions, if indeed the questions are still necessary, at all.

PN399

MR HARDY: That assists.

PN400

THE COMMISSIONER: Thank you, Mr Lovell. Does that assist?

PN401

MR HARDY: That assists, Commissioner. I can proceed in a different way.

PN402

THE COMMISSIONER: Right. I did say that I was going to return to the relevant documents. The Commission can provide to the parties if needed, the two relevant forms for both agreements which we refer to as the form F16 and the form F17. Those are matters of public record and obviously can be provided to the parties, or any parties if they wish. But maybe if you advise me at a later stage, Mr Hardy, whether you require those documents.

PN403

MR HARDY: I'll withdraw my request.

PN404

THE COMMISSIONER: All right, and just for the sake of clarity, I won't have regard to those documents unless one of the parties requests it at some stage.

PN405

MR HARDY: Certainly.

PN406

THE COMMISSIONER: So, we'll bring Mr Knauer back in.

PN407

MR HARDY: Thank you.

<MARCUS KNAUER, RECALLED [12.55 PM]

CROSS-EXAMINATION BY MR HARDY, CONTINUING [12.56 PM]

PN408

THE COMMISSIONER: Okay, Mr Knauer, you're back and you can hear and see me, I take it? I do apologise for the extent of time we took. Unfortunately I had to reboot my computer during that period. We've resolved the question I had for Mr Hardy and his questions will resume, thank you.

PN409

MR HARDY: Thank you. Mr Knauer, are you aware of a gentleman by the name of Mr Peter Curran at Airservices?‑‑‑I am, yes.

PN410

Is he a current employee?‑‑‑Yes.

PN411

Can I confirm where we were a moment ago before our short adjournment, which was to confirm that the evidence that you've given in your statement on pages 578 up to 581 inclusive, relates to your involvement in the 2017 enterprise agreement only?‑‑‑That is correct.

PN412

You said, I think a moment ago before our adjournment, that that is because you prepared this on the basis of when that schedule first came into existence?‑‑‑That is correct.

PN413

Thank you. Can you turn please to paragraph 11 of your statement which is page 579 of the court book?‑‑‑I have that in front of me.

PN414

That deals with what you've defined as schedule 1, correct?‑‑‑Yes, it does.

PN415

You say that it deals with a number of things in 11(a) through to (d). Can I ask you to read (d), please?‑‑‑'The process for managing a change of' - - -

*** MARCUS KNAUER XXN MR HARDY

PN416

Apologies, I should have made that clear. Just read that to yourself if you wouldn't mind, Mr Knauer, sorry?‑‑‑Yes.

PN417

Could I ask you to turn to page 611, holding that spot, to 611, please? Can you confirm that that is, what I would call, a first draft, as I understand it, of schedule 1 in relation to the 2017 enterprise agreement which was attached to an email that you sent, and Mr Lovell will tell you immediately if I get the dates wrong in this, that was sent in an email on or about 9 December 2015, to a group of people in an email?‑‑‑That is a draft on the schedule, that is correct, and it was sent via email.

PN418

If you read that (1) through to (5), it's got, 'Definition; Application of the schedule; Ordinary hours of work; Personal carers leave; and Termination of employment', as I see those headings and content?‑‑‑It says that.

PN419

There is nothing in there that talks about the processes of managing employment, is there?‑‑‑Not in that schedule, no.

PN420

So, when you say at 11(d) that schedule 1 was to include the process for managing of trainees' employment where they do to satisfactorily complete and essential component of training, that's not correct, is it?‑‑‑So, part of the management of that employment is a decision on whether that employee would continue to remain in our employ or not, and it was prepared on that basis. Having - - -

PN421

So, the - - -?‑‑‑Sorry, if I may add that that clause is read, knowing that within the learning academy they have their own processes that would also relate to the management of that employee's performance - - -

PN422

What are those - - -?‑‑‑During the - - -

PN423

What are those processes?‑‑‑So, they're the processes that, as I am aware, that are sent out under the RTA academic qualification framework.

PN424

You will appreciate though that the heading of (5) is, 'Termination of employment'?‑‑‑It is, correct.

PN425

You understand there's a difference between performance management and improvement processes, on the one hand, and termination of employment on the other. There's a distinction between those two concepts, isn't there?‑‑‑There is.

*** MARCUS KNAUER XXN MR HARDY

PN426

And clause 5 in this version that I've got you - I know it changes later on but if we just stick with this document, that deals only with the termination aspect, not the performance management and improvement processes, correct?‑‑‑That is correct.

PN427

If you look at the clause above, which is (4), it says, 'Clause 37 of this agreement does not apply to ab initios, correct?‑‑‑Correct.

PN428

There's no similar wording in clause 5, you'll agree, that says for example, that clause 49, as it was then of the agreement, doesn't apply to ab initios, correct?‑‑‑No, it does not.

PN429

Could I ask you please to turn to page 619? Have you go that?‑‑‑I do.

PN430

Is that a later version of that schedule, as was negotiated in or around 2015 for the 2017 enterprise agreement?‑‑‑It is another version later, I think, yes.

PN431

Yes, and that deals with both of those aspects that I just spoke to you about before, the personal leave one where it makes clear that clause 37 doesn't apply, correct?‑‑‑Correct.

PN432

Also, termination of employment at part 5, which would really, once accepted be part 4, because 4 would be removed, correct?‑‑‑That is correct.

PN433

Similarly, nothing in there that deals with the performance management and improvement processes in that schedule?‑‑‑It does not.

PN434

Would you turn to the next page, please which is 620. Can you explain this document to me please? Do you know who prepared it?‑‑‑So, this document was a working document that was keeping track of the issues that were up for negotiation during the agreement negotiations, and it was kept up to date. It was a shared document that people were able to - from the bargaining team that were able to update, and it was shared also, you know, at negotiations as a confirmation of what issues were either agreed, not yet resolved, or there was no agreement.

PN435

That is, when you say, 'the agreement', you mean the 2017 agreement?‑‑‑Correct.

PN436

This was, for example, a summary of negotiations as the parties were at, as of 15 December 2015 in that process that you've just discussed?‑‑‑Yes.

*** MARCUS KNAUER XXN MR HARDY

PN437

If you look on that page, the last row, 'Airservices was to remove ambiguity surrounding AB entitlements.' What's 'AB'?‑‑‑Ab initio.

PN438

Then in the second-last column on the right you've got the same language in (1) through to (4) that we've just gone through, that proposed schedule?‑‑‑Yes.

PN439

It's said to be agreed?‑‑‑Yes.

PN440

There's nothing in there, if we distinguish performance management and conduct management and improvement, that is dealt with in there. It's just again the termination of employment, correct?‑‑‑That is correct.

PN441

Yes. If you could turn please to page 627, please. Can you see that page?‑‑‑I can, yes.

PN442

It's got two rows. The first deals with clause - if you look at the 'current clause' column, clause 16, don't worry about that. Go to the next one which is 49. It deals with performance, correct - - -?‑‑‑Correct.

PN443

Conduct, yes?‑‑‑Yes.

PN444

And termination of employment?‑‑‑Correct.

PN445

And 49.1, for example, talks about - in relation to the performance and conduct issues, this is accepted and it goes through steps (a) through to (c), and (c) has got four little sub - Roman (i) to (iv)?‑‑‑That's correct.

PN446

There is nothing in here then in the agreed clause, if we look at that, which now looks like it's going to be 35.4, that deals with this not applying to ab initios, correct? You can take a moment to read it if you need to before you answer, but - yes?‑‑‑Could you please repeat the question?

PN447

Sorry, I'll repeat the question. Have a read, if you wouldn't mind, of the agreed clause in the second right-hand column of that second row. It starts with the number, 35.4?‑‑‑Thank you. Okay, yes, I've read that.

PN448

There is nothing in there, is there, that says that that clause would not apply to ab initio employees?‑‑‑It does not mention ab initio employees.

*** MARCUS KNAUER XXN MR HARDY

PN449

That's because that clause was intended to apply to ab initio employees, correct?‑‑‑No, not in the context of the schedule that was created, no.

PN450

All right, well I'll get to that in a moment. Go to page 621, please?‑‑‑Yes.

PN451

Do you see clause 3(a)? Can you read 3(a) to yourself, please on personal and carers leave?‑‑‑Yes.

PN452

Clause 37 of this agreement does not apply to ab initios, correct?‑‑‑Correct.

PN453

It makes clear, and that is what was in relation to personal and carers leave. If you go back to 627, there is no similar wording that says that that clause which was 49, which now becomes under the agreed provision, 35.4, would not apply to ab initio employees, correct?‑‑‑No, there's non similar wording.

PN454

When you say that's because of schedule 1, if I look at schedule 1, and let's go back to page 619, please - that clause 5 deals with termination of employment as we've established before, correct?‑‑‑Yes.

PN455

But clause 49 deals with termination, that's one aspect of the heading, but it deals with performance management issues, doesn't it?‑‑‑Termination of employment, that clause?

PN456

No, the clause in the enterprise agreement, 49 as it was then headed?‑‑‑Yes.

PN457

On page 627?‑‑‑Yes.

PN458

That heading isn't, 'Termination of employment', as the schedule is. It also deals with performance management processes, correct?‑‑‑Correct.

PN459

And it also deals with conduct related processes, correct?‑‑‑That is correct.

PN460

It also deals with termination?‑‑‑That is correct.

PN461

Schedule 1 though, the heading of that is quite different, isn't it? It just deals with termination of employment?‑‑‑For ab initios, yes.

*** MARCUS KNAUER XXN MR HARDY

PN462

Correct, thank you. The second statement that you provided yesterday, you've attached to that document, and apologies, there's no numbers on this but have you got a copy of that for the 2017 Performance improvement procedure?‑‑‑No, just - I did have it. I just need to open and closed it down. Give me a moment. Yes, I have that open now.

PN463

All right, thank you. Do you see, if you wouldn't mind it's on page 3 of that document, clause 2. It's titled, 'scope'?‑‑‑Yes, I have that in front of me.

PN464

This is dated 10 March 2017, this document that I've got, and it says - if you can read the first paragraph you'd agree it says, 'The procedure applies to all Airservices employees with the exception of ab initios and employees in probation', correct?‑‑‑Correct.

PN465

Around that time that is exactly the way in which Airservices would express how certain processes and procedures would not apply to certain groups of employees, correct?‑‑‑Correct.

PN466

Nowhere in the enterprise agreement do we find that either the performance processes or the conduct processes, and take those as being separate for a moment to anything to do with termination, those processes which are designed to improve performance and improve conduct, nowhere do we see that sort of a language, that they will apply to everybody with the exception of ab initios and other employees on probation. That's correct, isn't it?‑‑‑I can't talk to all documentation within the company but certainly it has(sic) something which has been used here.

PN467

Sorry. Okay, I might have confused you in my question. You've used that language clearly and expressly in the procedure document called the 'Performance improvement procedure', correct?‑‑‑The authors of the document have, yes.

PN468

I beg your pardon?‑‑‑The authors of the document have used that language, yes.

PN469

Correct. I mean, Airservices has. I'm not suggesting you're the author. Airservices has said the procedure 'applies to all Airservices employees with the exception of ab initios and employees in probation', correct?‑‑‑Yes.

PN470

It's a very clear group that is excluded from that, correct?‑‑‑That is clear. Correct.

*** MARCUS KNAUER XXN MR HARDY

PN471

That was done around 2017, which I understand was around the same time as you were negotiating the 2017 enterprise agreement, correct?‑‑‑That is correct.

PN472

Around the same time, and that Airservices, that is how - if Airservices does not want a procedure to apply, that is the language that it uses, correct, in that document as you see it in the performance improvement procedure?‑‑‑That is the language that the organisation used in this procedure, yes.

PN473

It did not use that language in the enterprise agreement?‑‑‑It did not.

PN474

And it did not use the language that said that the performance process to deal with performance and conduct issues, would not apply or would apply to the exception of, Ab initio and employees in probation, correct?‑‑‑It didn't use that language, no.

PN475

If it had sought to, much like it did on page 621, all personal and carers leave, expressly this clause will not apply to ab initios, you would have expected that it would have done the same in relation to clause 49, wouldn't you?‑‑‑No. Having written that, being part of the author of that clause where the schedule in clause 2 says the schedule applies to ab initios only, and to the extent of any inconsistency with this agreement, the parts in the agreement, the termination clause related that - that we were satisfied, both parties were satisfied that that clause is taken to be as read at part 5, termination of employment, with the (indistinct) their requirements.

PN476

Yes, in relation to termination I understand that?‑‑‑Yes.

PN477

I'm talking about performance - we distinguished earlier that there's a difference between performance improvement, performance management, conduct management, and then there's termination. There's nothing in the schedule about adding performance improvement or - or there's types of things that you see, for example, as we looked at earlier, in clause 49.1 in this table in schedule 1?‑‑‑That is true.

PN478

So - - -?‑‑‑That is correct.

PN479

Apologies, I interrupted you. Apologies?‑‑‑However, the management of an ab initio's performance is managed through the policy and procedures in the learning academy as it relates to their progression through the courts.

PN480

Where does it say that in the enterprise agreement?‑‑‑It doesn't.

PN481

It doesn't, all right. Thank you. I have no further questions.

*** MARCUS KNAUER XXN MR HARDY

PN482

THE COMMISSIONER: Could I just ask a question about the question you were just asked. You're relying on the proposition that the management of ab initios is through the policies and procedure of the learning academy. Was that the same or is it different to the circumstance which applied prior to the 2017 agreement?‑‑‑So, it is the same. There is milestones that the ab initios must achieve throughout the course which then the attainment or the achievement of those milestones or otherwise are managed within the framework of the learning academy.

PN483

So the 2017 end agreement didn't change that, is that what you're saying?‑‑‑No, it did not.

PN484

Thank you. Mr Hardy, is there any further questions arising out of mine?

PN485

MR HARDY: Nothing further, thank you, Commissioner.

PN486

THE COMMISSIONER: All right, thank you. Mr Lovell, any re-examination?

PN487

MR LOVELL: Commissioner, the only question I proposed to ask by re-examination was the one that you just asked. I have no further questions of this witness.

PN488

THE COMMISSIONER: All right. Thank you, Mr Knauer for giving your evidence. You are released and free to go, so thank you, very much?‑‑‑Thank you, Commissioner.

PN489

All right, thank you.

<THE WITNESS WITHDREW [1.17 PM]

PN490

So, Mr Lovell, that now brings us to Mr Clarke?

PN491

MR LOVELL: Commissioner, as I foreshadowed to Mr Hardy and your Associate, Mr Clarke and each of the two following witnesses are actually in attendance in person at our offices. I'll invite Mr Clarke to come in.

PN492

THE COMMISSIONER: Yes.

*** MARCUS KNAUER XXN MR HARDY

PN493

MR LOVELL: He will be seated in the seat sort of opposite me if that's convenient.

PN494

MR HARDY: Commissioner, while those arrangements are being made may I please be excused for two minutes.

PN495

THE COMMISSIONER: All right, we'll adjourn briefly.

PN496

MR HARDY: Thank you.

SHORT ADJOURNMENT [1.18 PM]

RESUMED [1.22 PM]

PN497

THE COMMISSIONER: Thank you. Mr Lovell?

PN498

MR LOVELL: Thank you. I call Mr Steven Clarke.

PN499

THE COMMISSIONER: All right, thank you. Mr Clarke, do you prefer to take the affirmation or administer an oath?

PN500

MR CLARKE: The affirmation please, Commissioner.

PN501

THE COMMISSIONER: Thank you. So, listen to the words spoken to you by my Associate and speak those back to her, please.

PN502

THE ASSOCIATE: Could you first please state your full name and address, noting it may be your place of work.

PN503

MR CLARKE: My full name is Steven John Clarke, (address supplied).

<STEVEN JOHN CLARKE, AFFIRMED [1.23 PM]

EXAMINATION-IN-CHIEF BY MR LOVELL [1.23 PM]

PN504

THE COMMISSIONER: Thank you, Mr Clarke. Mr Lovell, you can proceed.

*** STEVEN JOHN CLARKE XN MR LOVELL

PN505

MR LOVELL: Thank you, Commissioner. Mr Clarke, do you have a copy of your statement dated 11 March 2022 before you?‑‑‑Yes, I do.

PN506

Does that statement contain paragraphs 1 to 79, inclusive?‑‑‑Yes.

PN507

Together with exhibits numbered SC01 to SC15, inclusive?‑‑‑Yes.

PN508

Do you confirm that your statement and its various attachments are true and correct, in all material respects?‑‑‑I do.

PN509

Commissioner, I tender the statement of Steven Clarke.

PN510

THE COMMISSIONER: Thank you, very much. The statement of Steven Clarke with 15 attachments will be marked as exhibit R3.

EXHIBIT #R3 STATEMENT OF STEVEN JOHN CLARKE WITH 15 ATTACHMENTS

PN511

MR LOVELL: Thank you, Commissioner. I have no questions by way of examination-in-chief for this witness.

PN512

THE COMMISSIONER: All right, just one moment please.

PN513

Mr Hardy, if you can commence your cross-examination please?

CROSS-EXAMINATION BY MR HARDY [1.24 PM]

PN514

MR HARDY: Thank you, Commissioner. Mr Clarke, do I understand you're not currently employed by Airservices Australia?‑‑‑That's correct, Mr Hardy. I departed the organisation on 24 December 2021.

PN515

You were holding a role at that time of Business Change Manager, is that right?‑‑‑That's correct.

PN516

When did you commence in that role?‑‑‑It was mid June of 2021, so my replacement, because I was always active in the head of training role, which was the new role commenced on 6 January 2021 that commenced in mid April, so I took the handover up to that point.

*** STEVEN JOHN CLARKE XXN MR HARDY

PN517

All right, my next question was going to be just that, so let me ask it. Your role of acting operational training head, when did you perform that role?‑‑‑From 6 January 2021, until we completed a handover which was fully completed in the first week of July 2021.

PN518

Immediately prior to that role what position did you have at that point?‑‑‑I was the - I'll have to think back now because I had a few roles during that period of time. I was the National Co-ordination Centre Manager.

PN519

So was that outside of the training college?‑‑‑Yes, it was.

PN520

Yes, and so your role within the training college as operational training head essentially came to a head in July 2021?‑‑‑End of June 2021, yes.

PN521

June, apologies, June 2021?‑‑‑Yes.

PN522

Did Mr Frank Bosnich report to you at any stage during your employment?‑‑‑Yes. Yes.

PN523

When?‑‑‑Mr Bosnich commenced in the initial training in around March of 2021, and he reported to me until I handed over to Sara Davis at the end of June.

PN524

That was around the time of Mr Crouch's review and appeal process commencing, correct?‑‑‑Yes.

PN525

Did you appoint Mr - - -?‑‑‑(Indistinct) - - -

PN526

Bosnich - apologies, I (indistinct) - - -?‑‑‑No, just if I could correct myself there. When the first review was completed the Air Traffic Control Training head was Stewart Hunt. Mr Hunt handed over to Mr Bosnich.

PN527

Is Mr Hunt, as far as you're aware, a current employee of Airservices?‑‑‑Yes, he is.

PN528

Thank you, and he did the first, as you said, the first training review of Mr Crouch, correct?‑‑‑He approved the first training review, correct.

PN529

That approval recommended the termination of Mr Crouch's training, correct?‑‑‑Correct.

*** STEVEN JOHN CLARKE XXN MR HARDY

PN530

You then appointed Mr Crouch(sic), he then went through a process of appeals and reviews of those findings and recommendations. You appointed Mr Bosnich at around that time?‑‑‑Yes. Sorry, I don't have the dates in my head (indistinct) - - -

PN531

Approximate?‑‑‑But by the time the second training review had been completed, Mr Bosnich was in place, yes.

PN532

Mr James Harrington, did he report to you?‑‑‑Yes.

PN533

When?‑‑‑From 6 January 2021, until mid June 2021.

PN534

So, around the same period as Mr Bosnich?‑‑‑He was longer than Mr Bosnich, because Mr Bosnich didn't start until after Mr Hunt had moved on.

PN535

Apologies, apologies. Just so that we're clear, Mr Harrington was around January to June, and Mr Bosnich, you said, was around March till June?‑‑‑Yes.

PN536

Thank you, and in 2021?‑‑‑(No audible reply)

PN537

You, at a point in time, reviewed Mr Crouch's training review, correct?‑‑‑Yes, when Mr Crouch submitted an appeal.

PN538

As did Mr Bosnich, correct?‑‑‑No.

PN539

So, Mr Bosnich, I understood he performed a review of Mr Hunt's initial training review report and published the second training review report. Have I got that incorrect?‑‑‑I don't think it's incorrect. It's just the sequence of events. So, the first training review was prepared, which Mr Crouch appealed. At that point in time, subsequent to that I asked for a second training review to be completed based on what Mr Crouch had had in his appeal and in my discussions with him, and Mr Bosnich was in place to come to the second training review, so he approved the second training review.

PN540

Yes, that's right. But that was the first review of the Hunt, if I can call it, the Hunt report, the first review that was undertaken of the initial findings and recommendation that Mr Crouch have his training terminated. The first of those reviews is done under the authority of Mr Bosnich?‑‑‑No, the review is conducted by me.

*** STEVEN JOHN CLARKE XXN MR HARDY

PN541

Could I ask you to turn please to page 1033 of the court book?‑‑‑Have you got 1033?

PN542

Sorry?‑‑‑Sorry, I'm just finding that page, thank you. I'm there now.

PN543

This is the review of Mr Hunt's initial training review that was undertaken by Mr Bosnich, isn't it?‑‑‑Yes.

PN544

So this is the first review that is undertaken of Mr Hunt's training review and that was undertaken by, or approved by Mr Bosnich?‑‑‑Yes. I think where I am - when you talk about a review, I was considering Luke's appeal, Mr Crouch's appeal, which I undertook a review of that appeal.

PN545

Okay?‑‑‑Yes.

PN546

So, Mr Bosnich has basically been involved in this review, you've looked at the appeal, and Mr Harrington has sat on the appeal part of that process, as well, correct?‑‑‑Mr Harrington was part of a different process. He wasn't part of this initial process.

PN547

Not initially, because initially we can see it's Sara and Frank. We also know that you did a review, but we also know there was an appeals process where Mr Harrington participated, correct?‑‑‑Yes, and that was subsequent to me considering this appeal in the light of this second training review.

PN548

Quite so?‑‑‑Yes.

PN549

So, other than yourself and those reporting to you, was there anyone else that reviews Luke's training review or appeal that could be regarded as independent of you and your team?‑‑‑Yes, so when Mr Crouch put forward his academic appeal, Mr Harrington was the chair. He independently appointed two other individuals onto the panel. They were quite separate to initial training. They had training experience but they were from the operational group.

PN550

Who were they?‑‑‑Ingrid Clements and - I'm just trying to think who were the first ones - - -

PN551

What are you - - -?‑‑‑Nichole Lewis, was the other person.

*** STEVEN JOHN CLARKE XXN MR HARDY

PN552

What are you referring to there, Mr Clarke?‑‑‑Just my notebook.

PN553

I call for the notebook.

PN554

MR LOVELL: Commissioner, it's only just come to my attention that Mr Clarke has a notebook with him. I suggest the pragmatic course here might be simply to ask him to set the notebook aside and continue with the questions.

PN555

MR HARDY: I maintain my call for the notebook. It's out there.

PN556

THE COMMISSIONER: Mr Clarke, could you put the book down please?‑‑‑Certainly, Commissioner.

PN557

Put it on top of the bible to your left. Okay, could you tell me please what the book is?‑‑‑I - - -

PN558

The folder you have in front of you, could you put that to one side, as well, please and close your laptop. Okay, now the book on top of the bible, what is that book?‑‑‑It's my personal notebook where I just made some notes yesterday evening about the circumstances.

PN559

What other notes does it contain? When would the first note in that book have been made?‑‑‑Yesterday evening.

PN560

There are no notes prior to yesterday?‑‑‑Correct.

PN561

Where did you draw those notes from?‑‑‑Just my recollections.

PN562

Why were you referring to them a moment ago?‑‑‑Because Mr Hardy had asked me about the people involved in the training review and that's something I'd put in my notebook.

PN563

All right, thank you. Mr Hardy, I don't propose to have the book presented, at this stage. I'm satisfied with those answers. But Mr Clarke, it would be advisable if you - I'm not quite sure what the folder to your right is. Could you explain that please?

*** STEVEN JOHN CLARKE XXN MR HARDY

PN564

MR LOVELL: Commissioner, I might be able to explain. That's a hard copy version of the court book. We've supplied it in case there were any technical difficulties in accessing the court book, literally.

PN565

THE COMMISSIONER: Sure. All right.

PN566

MR LOVELL: But it is only the two folders that represent the content of the court book.

PN567

THE COMMISSIONER: And the laptop, I presume is yours, Mr Clarke?‑‑‑Yes, it is. I just wasn't familiar that it had page 1033 in there.

PN568

What I would suggest if I can reframe this a little bit, my understanding of the material which has been provided to the Commission is that you are, from the applicant's perspective, one of the critical witnesses that he will be seeking to cross-examine and to draw out from you as much as possible. I'd be suggesting to you that to the extent you can, that you not rely upon any notes, at all and that when Mr Hardy asks you to look at a particular page, that you do that directly from the hard copy which is to your right. Now if you need to refresh your memory in any other respect, you need to seek my permission before you do that?‑‑‑Okay, thank you, Commissioner.

PN569

Mr Hardy, please continue.

PN570

MR HARDY: Thank you, Commissioner. Mr Clarke, do you routinely keep a notebook?‑‑‑So, routinely? Say again the question, please?

PN571

Do you routinely keep a notebook in your - whilst employed at Airservices do you routinely keep a notebook?‑‑‑I kept a diary, yes.

PN572

Does your diary contain information about Mr Crouch and the review and appeal processes that were being undertaken in relation to his training?‑‑‑Not that I recall, no.

PN573

We were discussing a moment ago, those that sat on the appeals - I think it was called the appeals panel, is the word - - -?‑‑‑That's correct.

PN574

Of which one of your direct reports was the chair, Mr Harrington, correct?‑‑‑Correct.

*** STEVEN JOHN CLARKE XXN MR HARDY

PN575

I believe there were two other people. You recalled the name of one and perhaps don't recall the name of the other. One was Ingrid Clements, correct?‑‑‑Correct.

PN576

And perhaps don't recall, unless you do - do you recall the name of the other?‑‑‑I knew her surname and I have now recalled her first name, Christian name, which is Nichole, Nichole Lewis.

PN577

Nichole Lewis?‑‑‑Correct.

PN578

Who do they report to?‑‑‑I couldn't tell you who they report to, other than they were out of this operational air traffic control group.

PN579

So, other than those who sat under Mr Harrington's chair on the panel, and Mr Bosnich and yourself, was there anyone else that you're aware of that might be regarded as independent, that would have reviewed Mr Crouch's training review and the recommendations that were first made by Mr Hunt in February 2021?‑‑‑No.

PN580

You were aware, weren't you, that there was supposed to be an external review undertaken by an EAP provider?‑‑‑Yes, that was in the procedure.

PN581

That was the RTO Operations Manager, or Airservices Australia? Is that the procedure you refer to when you say, 'procedure'?‑‑‑Yes, it'd be either there or in the ATC training manual.

PN582

Just so that there's no doubt, and I can assure you I'm not trying to trap you on any of it but if you could look at page 156 - sorry, go back to pages, 154 which is the Academic appeals procedure and evidence retention requirements, and that is as part of a document that begins at page 90, the Airservices Registered Training Manual - Operations Manual, Airservices Australia. Have you go that?‑‑‑Yes.

PN583

Do you see to the page that I started with, 156, item 13 is an independent review that is supposed to be undertaken in compliance with this RTO manual by an employee assistance program provider, correct?‑‑‑Yes.

PN584

And that was not complied with in relation to Mr Crouch, correct?‑‑‑We attempted to comply with that but we became aware that it was not a service that Converge, who's the EAP, no longer provided.

*** STEVEN JOHN CLARKE XXN MR HARDY

PN585

The question was that it wasn't complied with in relation to Mr Crouch, correct?‑‑‑Correct.

PN586

Your statement, if you could turn to it please, at paragraph 55, and the court book reference, apologies, is page 590 - do you have that?‑‑‑Nearly.

PN587

No problem, just let me know when you do?‑‑‑Yes.

PN588

You say the referral there is for mediation but that's not correct, is it? And from what we've just looked at - sorry, let me withdraw that. Let me ask that question first. It's not a referral for mediation?‑‑‑The (indistinct) receiver at the time, no, it was not a referral for mediation.

PN589

Thank you. It was a referral for an independent review to be undertaken by the EAP provider?‑‑‑Yes.

PN590

Would you accept that then in those circumstances Mr Crouch's review by internal teams within Airservices, either yourself or, those directly reporting to you, or those that directly report to you chairing a panel made up of him plus two other employees, is not an entirely independent review?‑‑‑No.

PN591

And that the independent review process was unfortunately missed out on in relation to Mr Couch, correct?‑‑‑The second independent review was. I don't accept that the first one wasn't independent. It needed to be a unanimous decision between the three of us.

PN592

Chaired by - is that the one that's chaired by Mr Harrington, your direct report?‑‑‑Yes.

PN593

Could you see how with you doing a review on one or two of your direct reports there might be, if not an actual, but a perceived conflict of interest in relation to that process?‑‑‑No, it was well known that I was moving out of the role and that Mr Harrington wouldn't be reporting to me. If the decision hadn't been unanimous I wouldn't have been involved.

PN594

But that's not the answer to my question. My question, Mr Clarke, is that at that time he was your direct report, correct?‑‑‑When he was commissioned as the chair, yes.

*** STEVEN JOHN CLARKE XXN MR HARDY

PN595

There's nothing in your statement that sort of suggests that you weren't otherwise involved and that you'd removed yourself because you were going to be cycling out of that role, correct?‑‑‑There's nothing in the evidence that I wasn't involved, at all, in the process.

PN596

You were actively involved I the appeal process. You did the review, didn't you?‑‑‑Yes, I considered Luke's appeal, yes.

PN597

So, how is it that you say you weren't involved?‑‑‑In the academic appeal conducted by Mr Harrington.

PN598

Right, and my question a little while ago was, do you accept that if not an actual, at least a perceived conflict or perceived bias by having one of your direct reports when you were involved in that process, as well, conducting those - or two of your direct reports involved in leading those processes - could you accept that that could be, not actual but at least perceived?‑‑‑Mr Harrington was never involved at all in any of the previous discussions around Luke, so no.

PN599

But he was involved in chairing an appeals panel?‑‑‑Correct.

PN600

At a very pointy end of the process?‑‑‑Yes.

PN601

Correct?‑‑‑Yes.

PN602

So I'll ask my question for the third time. Would you accept that it would present at least an actual, if not a perceived, perception of bias against Mr Crouch?‑‑‑I don't accept there was any actual conflict of interest. Potentially perceived, yes.

PN603

Thank you. And perceived bias against Mr Crouch?‑‑‑No, I don't accept there was any bias against Mr Crouch.

PN604

Well, it might not be actual bias in light of your prior answer, but perceived?‑‑‑No, there - because of the independent parties involved in the review I don't think there was any perceived bias against Mr Crouch. They had nothing to do with the previous decision.

PN605

They were your direct reports, Mr Clarke?‑‑‑Not the other two members of the panel. That's what I meant.

*** STEVEN JOHN CLARKE XXN MR HARDY

PN606

Mr Bosnich and Mr Harrington, the chair, were?‑‑‑Mr Bosnich was not involved in the academic appeal process.

PN607

He was involved in the first part of the appeals process on the training review. This all relates to - I'm having a very difficult time getting some fairly straightforward answers from you, Mr Clarke. This all relates, this entire process - call it a review process, an appeal process, whatever process you want to call it, it arises out of what initially was Mr Hunt, who is not before the Commission, his findings and assessment of Mr Crouch's training in his training review report. Is that not correct?‑‑‑Correct.

PN608

So those that then followed, being Mr Bosnich in one form, being yourself in a form, being your appeal panel in another form, chaired by your direct report and Mr Bosnich, a direct report of you, and yourself - I'll ask again, could that be, if not an actual, a perception of bias in that process against Mr Crouch, with no independence?‑‑‑I accept there's a perceived conflict of interest but what I'm struggling with your question is that you say it's a concept of bias, but if it's the same thing then yes.

PN609

Thank you. Could you turn to page 818 of the court book please. Have you got that page in front of you, Mr Clarke?‑‑‑Not yet.

PN610

Let me know when you do, please?‑‑‑Yes, I have that now.

PN611

Thank you, and just accept Mr Lovell will interject if I'm not representing this correctly. This is the position description that related to Mr Crouch. There's a heading,

PN612

Number 2, 'Primary purpose of position', do you see that?‑‑‑Yes.

PN613

The third paragraph down, third line it says, 'The training consists of 13 to 15 months of classroom and simulator based training, followed by three to six months of on the job training.' Do you see that?‑‑‑Yes.

PN614

That's not an accurate time frame, is it?‑‑‑The time frame can vary depending on the circumstances at the time.

PN615

And quite significantly, to two years, up to three years?‑‑‑Not in normal circumstances, no.

*** STEVEN JOHN CLARKE XXN MR HARDY

PN616

My question wasn't about normal circumstances, my question is, can that time frame exceed to, for example, two years, up to three years, in your long experience that you had at Airservices in your time in the training college? Do you relate to that? Could it happen?‑‑‑In my time there, the time that I was there, I'm not aware that it would have exceeded that two year time frame, no.

PN617

So are you aware of it when you weren't in that six month period? Are you aware of other times that college training can take in excess of two years, and could take up to three years, and even using your wording, in exceptional and different circumstances, or exceptional circumstances?‑‑‑I am aware that the training times had extended because of the COVID scenario but to what extent, I'm unsure.

PN618

In your role you did not play a direct role in the support that is said to have been provided to Mr Crouch during his training, is that correct?‑‑‑Correct.

PN619

You weren't - - -?‑‑‑Yes.

PN620

Thank you. And so when you give evidence in your statement about support, that's not something you know directly about, is it?‑‑‑I'm not sure which part of my statement you're referring to but I know there are support mechanisms available to trainees, yes.

PN621

Sorry. Mr Clarke, you've just told the Commission a moment ago you did not have a direct or active involvement in the support that is said to have been provided to Mr Crouch during his training, correct?‑‑‑Correct.

PN622

Therefore when you do give evidence in your statement, and I'll take you to some paragraphs if I need to take you to those paragraphs, about matters concerning the training and the support that you say was given to Mr Crouch, you don't have direct knowledge of that because you weren't directly involved, correct?‑‑‑No, but I can review the artifacts(?) associated with that product.

PN623

Yes, you've reviewed a document or someone has told you something.

PN624

THE COMMISSIONER: Mr Hardy, it may be best if you take the witness to the parts of the statement that you're concerned about.

PN625

MR HARDY: Certainly, Commissioner. Certainly. If I could please take you to page 590?‑‑‑590.

*** STEVEN JOHN CLARKE XXN MR HARDY

PN626

It's paragraph 56 and there's a heading, 'Support provided to the applicant'?‑‑‑Yes, I'm there now.

PN627

And 56 through to 63, you deal with under that heading, 'Support provided to the applicant. Have a moment to have a look at those paragraphs if you need to?‑‑‑So, what was the last paragraph you mentioned, sorry, Mr Hardy?

PN628

Sorry, just to 63?‑‑‑Yes, okay.

PN629

In that section, none of that you directly, that's correct isn't it, in that you weren't involved in the training, you've had to review or speak to people about things?‑‑‑Yes, I reviewed the documentation to ensure that those - all arrangements were in place, yes.

PN630

And if you look at page 591, paragraph 60, the training support agreement delivered in full, you say that - what's the basis for you to say that that training support agreement was delivered in full?‑‑‑Because that's the accountability of the delivery manager.

PN631

Right, and what makes you say that it was delivered in full?‑‑‑Because that was confirmed to me by the instructional staff.

PN632

Who?

PN633

THE COMMISSIONER: Just for the purposes of my clarity could you - maybe it's the same question Mr Hardy was asking, who was the delivery manager that you're referring to there?‑‑‑The delivery manager there was Mr Boyd who had left the organisation in - towards the end of 2021, I believe.

PN634

All right, thank you.

PN635

MR HARDY: How did you confirm that the training support agreement was delivered in full?‑‑‑My recollection, that was informed to me by Emma Schafer.

PN636

So, Emma Schafer informed you that that had been - and who was Emma Schafer? What was her role?‑‑‑Emma Schafer was the person who did the training review, who did the first training review.

*** STEVEN JOHN CLARKE XXN MR HARDY

PN637

Given that distance away from the reality of what was going on, would it surprise you that Mr Crouch's evidence is that the delivery manager, Mr Boyd, there were two sessions with him - he wasn't present at the first session? Are you aware of that? Sorry, apologies. He did not deliver the first session. It was a session by Chris Watson?‑‑‑Correct.

PN638

Are you aware of that?‑‑‑Yes, I'm aware that's in the evidence, yes.

PN639

And that he didn't attend, he wasn't present as the delivery manager at the second of those meetings. Are you aware of that?‑‑‑Yes, and I don't see that he would need to be.

PN640

So, the delivery manager is not present and you give evidence to the Commission to say in paragraph 60 that the agreement was delivered in full as delivered by the delivery manager, which as I understand your evidence, wasn't confirmed to you by him but by some other lady, Schafer, correct?‑‑‑Yes, from reviewing the documentation of the training support and agreement.

PN641

Did you speak to Mr Boyd, did you check?‑‑‑I couldn't speak to Mr Boyd because he's left the organisation.

PN642

Why does that prevent you from speaking to Mr Boyd?‑‑‑I didn't see a need to speak to Mr Boyd because the documentation was in place to say that that was the training support agreement that was delivered.

PN643

But your evidence to the Commission is that it has been confirmed by the delivery manager. How can you tell the Commission that if you didn't speak to Mr Boyd?‑‑‑Because it was informed to me by the people who were in the training review, on reviewing their documentation.

PN644

I see. All right, thank you. And the same is true really for the balance of the review and appeals process, other than the part where you were asked to undertake a, what I would call, on the papers review. You didn't have an involvement in that process otherwise, did you, a hands on, direct involvement?‑‑‑No, I'm not sure I understand your question, Mr Hardy.

PN645

My question is that other than the aspects of the review that you sat on when you did your review of the outcome to terminate Mr Crouch's training, when you were actually looking at that as one of the aspects of the process, for the balance of it you had no direct involvement in that, it was other people that were doing it?‑‑‑Yes, that's correct.

*** STEVEN JOHN CLARKE XXN MR HARDY

PN646

So when you then give evidence to say Mr Crouch was given a fair and reasonable opportunity to complete the course, how do you make that statement, on what basis do you say that?‑‑‑Based on my assessment of the training review, taking into account the feedback that was provided to me by Mr Crouch, making sure that we complied with our procedures and processes within the frameworks we worked within to make sure that he had reasonable adjustments when he was experiencing any difficulty, to satisfy myself that he had a fair and reasonable opportunity to be successful.

PN647

Did you discuss - - -

PN648

THE COMMISSIONER: Mr Hardy, can you point me please to the reference in the statement where that came from?

PN649

MR HARDY: Yes, apologies, Commissioner. You can start the reading of that, Commissioner, at paragraph 71 on page 593 and the direct reference comes off the following paragraph which is 72, about half way down. They've agreed to the findings that fair and reasonable support have been provided to the applicant, about half way through that paragraph.

PN650

THE COMMISSIONER: Thank you.

PN651

MR HARDY: Mr Clarke, did you interview any members of staff during the involvement that you had in the review or the appeal of Mr Crouch's training review and outcomes?‑‑‑Other than the discussion with Emma Schafer about the training support agreement.

PN652

You didn't speak to Mr Watson?‑‑‑No.

PN653

You were aware, weren't you, that Mr Crouch had raised to you in writing on a number of occasions, serious concerns about the conduct of Mr Watson in relation to his training support leading up to the exam?‑‑‑No, I'm not aware of that.

PN654

You're not aware that Mr Crouch took issue with Mr Watson, is that what you're saying?‑‑‑No, the question was whether he'd done it on a number of occasions. Certainly in the - - -

PN655

Mr - - -?‑‑‑(Indistinct) when he wrote to me, he raised that particular issue around Mr Watson and I took that into account, yes.

*** STEVEN JOHN CLARKE XXN MR HARDY

PN656

Mr Crouch raised to you, addressed to you on a number of occasions, didn't he? It wasn't just one letter that he wrote to you. You had multiple letters. I can take you to each one of them. They are sitting in the court book. Do I need to do that?‑‑‑I was aware that Mr Crouch had an issue with that individual, yes.

PN657

And in your lead role you didn't go and speak to that individual in reviewing an outcome that has the effect of termination of Mr Crouch's training and the follow on effect of which would most likely be the termination of his employment?‑‑‑No.

PN658

You say that you were satisfied, and this is on that same page that I've referred the Commissioner to a moment ago on page 593, you say that you were satisfied that Mr Crouch had been offered support that was consistent with the level of support provided to other trainees in comparable positions. This is at paragraph 71, do you see that?‑‑‑Yes.

PN659

Who did you speak to, to make that assessment?‑‑‑I reviewed the process to ensure that a training support agreement was in place that was relevant to the circumstances.

PN660

No, how did you form the view that it was consistent with the support given to others?‑‑‑Because the process is to have a training support agreement. That was in place.

PN661

Regardless of the content?‑‑‑The training support agreement could have different content but that's the process for the training support when somebody's in that circumstance where they need support, the training support agreement.

PN662

Doesn't the support agreement detail the support to be provided? Isn't that the purpose of the agreement?‑‑‑Yes.

PN663

So, how did you satisfy yourself that that support that he has been provided was consistent with the level of support given to others?‑‑‑That's the normal process that we follow.

PN664

Which other training review reports did you look at?‑‑‑No, it's just based on my experience of the processes that we use. When we get to a circumstance where someone is struggling, the training support agreement is put in place to outline the activities to follow.

*** STEVEN JOHN CLARKE XXN MR HARDY

PN665

No, I'm not talking about that. I'm talking about the actual level of support, the actual support. You're giving evidence to this Commission to say you were satisfied of that level of support that was given, that which is contained in the operative, substantive part of that agreement was consistent with what was given to others?‑‑‑Yes.

PN666

I've not yet heard how you formed that view or which trainees you looked at, which other agreements you looked at to see the level of support provided to others. What - - -

PN667

MR LOVELL: Commissioner, I - - -

PN668

MR HARDY: Apologies, it's a long question. I'll withdraw it, I'll withdraw it. Apologies. Mr Clarke - - -

PN669

THE COMMISSIONER: The point's been made, Mr Hardy.

PN670

MR HARDY: I beg your pardon?

PN671

THE COMMISSIONER: I think your point has been made.

PN672

MR HARDY: All right, I'll move on. Thank you, Commissioner. Mr Clarke, you also tell the Commission that you've found no evidence to indicate an increased likelihood of success on any further extension of training, or training support. That's at paragraph 72 on page 593. Can you have a look at that please?‑‑‑Yes, that's correct. I (indistinct), yes.

PN673

How did you form that view?‑‑‑Because we had already provided a level of support to Mr Crouch and he was unable to successfully complete the examination.

PN674

And Mr Crouch had challenged that level of support, you're aware of that?‑‑‑Yes.

PN675

And he had named the people that he was saying were - fairly strong words about how he believes, particularly Mr Watson, had conducted himself around him in relation to his training? Yes?‑‑‑In relation to the training support agreement, yes.

PN676

Yes, and you didn't check that with Mr Watson, you told the Commission earlier?‑‑‑No, I didn't.

*** STEVEN JOHN CLARKE XXN MR HARDY

PN677

Yet you conclude that there's no evidence to indicate an increased likelihood of success through any extension of training, or training support (indistinct)?‑‑‑As part of the training support agreement Mr Crouch completed a work book which, it should have given him a reasonable opportunity having gone through that theory, to complete the exam. There was - - -

PN678

THE COMMISSIONER: Mr Clarke, can I just interpose at this stage. The comment that you've made in your statement is an interesting one and it's saying to me, isn't it, that in Mr Crouch's case, from what I knew about this man at this point in time, I didn't think he was going to pass the thing with further opportunities, so I didn't give him those opportunities. Is that the way I should be reading it?‑‑‑Yes. What we find with the trainees is if they don't complete things within a reasonable period of time, particularly in an early stage of the course, that they really do struggle. It would have been - - -

PN679

So that's how I've read it?‑‑‑Yes.

PN680

Now your answer to Mr Hardy, so far, is not strong. You've said, well, everything I knew means that I can make that prediction. This is your opportunity to delve into your knowledge and explain what that knowledge was, why it was in Crouch's case there wasn't to be a further opportunity but perhaps in other people's cases there might be; or maybe there's a third possibility which is, I never give anyone any further opportunity. So, please explain to me what that sentence really means and how you formed that view?‑‑‑I formed that view based on Mr Crouch's progression. If I think about the theory exam if that's where we are here, he performed very poorly in the first instance. And following the training support and a reasonable period of time to be able to study for that exam for what is a foundational examination in air traffic control, it's separation standard, so they're the standards we apply between the aircraft where you'd need a really strong knowledge. To fail that exam twice following the training support agreement, in my experience, there was little likelihood that giving him any more opportunity, notwithstanding that we don't set the pass mark, that's set by the Civil Aviation Safety Authority, that he wouldn't have been any more likely to pass that exam.

PN681

And is that the same impression you would have for everyone else in that situation, as well?‑‑‑For a theory examination, yes. For the practical it can be different because there are various - the practical is done in a simulator so there are lots of variables. You've got people who have been pilots that can change the outcome of an exercise, so in terms of a second supplementary examination, in my experience for theory, I've never seen that. We might in certain circumstances have a second supplementary examination for theory depending on the circumstances at the time.

*** STEVEN JOHN CLARKE XXN MR HARDY

PN682

So, is that saying in Mr Crouch's case where he failed the same exam twice, the theory exam - - -?‑‑‑Yes.

PN683

There was no turning back?‑‑‑Yes, that's my - - -

PN684

There was no further chance to be had?‑‑‑Yes.

PN685

All right. So then what was the review process about?‑‑‑So that whole training review when somebody doesn't pass an element of the course, they used to collect all the evidence together in one spot so that we can then make an objective assessment about whether or not that person is planning to continue, i.e., they get re-coursed, or that their training is terminated.

PN686

That's what you might do, whereas what I'm talking about is what Mr Crouch might do. He's asking for a review?‑‑‑Yes.

PN687

Now the proposition I put to you is based on what you had to say at that review process, really. That's my point. Anyone in his position would end up in the same situation of being recommended for termination?‑‑‑Yes, in the circumstances of the theory, that's correct.

PN688

All right. So, Mr Hardy, please go on.

PN689

MR HARDY: But you also told the Commissioner that it can in certain circumstances, that they can have another opportunity, and in fact that has occurred in relation to the theory, hasn't it?‑‑‑Not in my experience, no.

PN690

I'll take you to a reference of one example of that in a moment. Can I ask you to look please at the very last page of the court book, 1051?‑‑‑Yes, I'm there.

PN691

You've seen this table before? It's annexed to your statement, correct?‑‑‑Yes.

PN692

Did you ask for it to be prepared?‑‑‑No.

PN693

Who did? Mr Clarke?‑‑‑I'm unsure at this stage.

*** STEVEN JOHN CLARKE XXN MR HARDY

PN694

You're unsure. Very well. It says there were 351 trainees, as I read this document that commenced a diploma that was enrolled in the period 2015 to 2022, correct?‑‑‑Correct.

PN695

And that 57 of those had been re-coursed?‑‑‑Correct.

PN696

The re-coursing, as you know, is one of the avenues that

PN697

Mr Crouch had asked that he be afforded the opportunity to be re-coursed?‑‑‑Yes.

PN698

In relation to that we also know at the bottom of that table that table that 117 of those trainees left the organisation during the initial training, left the training process, correct?‑‑‑I can't see the 117 figure, unless you - - -

PN699

Yes, yes, it's - - -?‑‑‑In the middle at the top, yes. I see that, yes.

PN700

Yes, and that is under the row headed, 'Initial training, withdrawn total'?‑‑‑Yes, I see it now.

PN701

And of that, 50 of those which is the next line down, were organisation initiated?‑‑‑Yes.

PN702

Yes. So, if we take those 50 and we take the re-coursed 57, that means that there must have been over that period as I read this, 107 employees through that training review? Because before you initiate an organisation initiated training, those 50 would have gone through a review, correct?‑‑‑Those 50 would have, yes.

PN703

So therefore we've got 107 employee trainees over that period, 107 of them and through that calculation, 57 of them re-coursed, correct?‑‑‑Correct.

PN704

That's 50 per cent of those that go on a training review get re-coursed on this data, just over?‑‑‑Yes, we can't assume that everybody who goes under a training review will get re-coursed. It depends on the circumstances. But that's what this data is showing, yes.

PN705

How else do you go on to be re-coursed if you haven't undertaken a training review, Mr Clarke?‑‑‑Circumstances where people fall off their bicycle, broken leg, they're progressing well through the course, they're not under - they're not having any issues with the course. They're just unfit to be able to attend work.

*** STEVEN JOHN CLARKE XXN MR HARDY

PN706

But presumably that requires a review and a decision to be made? You don't just fall off your bike and break your leg and then get back up on a re-course, do you? There's a process?‑‑‑Yes, it's a considered process but it's not the same depth of review that would be done when somebody is not performing to what we expect.

PN707

When you were looking at options available for Mr Crouch did you have regard to the comparable results in both theoretical course work and practical course work of his cohort?‑‑‑No, I considered the theoretical results.

PN708

Of all the others in his course?‑‑‑No, of Mr Crouch.

PN709

You didn't assess how he was tracking against the balance of his cohort. That's what you've just said, correct?‑‑‑Correct.

PN710

In relation to the practical component, did you consider that, at all?‑‑‑I looked at it as part of the review but in the end he was put under review because he failed the theory element, and that's the bit that informed my decision.

PN711

Sorry, so what are you saying about the practical component? Did it have a place in the review for you?‑‑‑In terms of the decision, no, because the reason he was put under review is because he failed the theory exam for the second time.

PN712

But you're aware, aren't you, that part of the review and the recommendation in the findings dealt with practical matters, dealt with the progress evaluation?‑‑‑The progress evaluations are included for completeness, yes.

PN713

Not for completeness. Mr Clarke, there are two processes that are parts of this that are undertaken for every trainee. There is a theoretical part, correct?‑‑‑Correct.

PN714

And a practical part?‑‑‑Correct.

PN715

And as I read it, and I'm happy to take you to all the references if I need to, the training review report done of Mr Crouch, he's criticised by Mr Hunt, he's criticised by Mr Bosnich, on not only theoretical parts but on practical parts, correct?‑‑‑Correct.

*** STEVEN JOHN CLARKE XXN MR HARDY

PN716

Yet your review, you've just told the Commissioner, looks at theoretical, and as best as I can understand what you're saying, there's some cursory look at the practical component, correct?‑‑‑The big element was that Mr Crouch failed the theoretical element. He hadn't been put through to the examination for phase 2 because he failed the theory. That was a prerequisite.

PN717

Yes but that's a part of the review, isn't it?‑‑‑It's included in the review. What I'm saying to you is I based my decision on the fact that he had failed the theoretical exam twice. That was the reason.

PN718

You had no regard to other matters such as practical matters, from what you are saying?‑‑‑I reviewed them but they didn't inform my decision.

PN719

So you're just - - -?‑‑‑So the theory was a prerequisite for this module and he failed it twice.

PN720

You're aware that there are errors contained within - and I'm going to talk about errors relating to the theoretical - the errors relating to theoretical and the errors relating to practical components of Mr Crouch's review report that was first initiated by Mr Hunt. You're aware of that?‑‑‑I was aware that Mr Crouch put those things to me, which is why I asked for the second review to be completed, yes.

PN721

I'm not asking you about Mr Crouch putting them to you, Mr Clarke. What I'm asking you is that you are aware that there were errors after you looked at it in your senior role, in that first review. Correct?‑‑‑I didn't look at the first review until I'd met with Mr Crouch to hear his perspective, so - - -

PN722

But you were - - -?‑‑‑But I did not know prior to that point that there were any errors in that review.

PN723

Are you aware now?‑‑‑Yes.

PN724

There were material omissions in that review, the first review that was undertaken by Mr Hunt?‑‑‑There were omissions, yes.

PN725

And the second process was run by your direct report. You asked him to address those, for one instance, material omissions, didn't you?‑‑‑A person was appointed to do the review. It wasn't Mr Bosnich. It was - in fact it was one of his employees, yes.

*** STEVEN JOHN CLARKE XXN MR HARDY

PN726

But Mr Clarke, at that point you'd told them to deal with the deficiencies, PE6?‑‑‑Correct. I asked for it to be - - -

PN727

So, you (indistinct) - - -?‑‑‑(Indistinct reply)

PN728

You told the Commission you had no idea about it, but you know about it now. You knew about it then?‑‑‑No, that's what I said to you, once those matters had been raised - that's why I asked for the second review to be completed, yes. That's when I knew about it.

PN729

You were aware - Mr Clarke, this is excruciatingly difficult - you were aware at the time Mr Crouch first raised his concerns about the material omissions in the first review report that recommended his termination and has never changed from this organisation, that there were material omissions and that you knew that, irrespective of what's - Mr Clarke's raising it, you've looked at it and you are aware of it at that point, correct?‑‑‑We're probably talking about the timing here. I didn't - before I met with Mr Crouch, no, I did not know there were omissions in that because I hadn't looked at it.

PN730

And when Mr Crouch raised it you certainly were aware then?‑‑‑Yes.

PN731

And that was - - -?‑‑‑Well, Mr Crouch said that. That's why I asked for the second review to be completed.

PN732

Which was in a matter of days of that first review being completed?‑‑‑The time from the first review to the second review?

PN733

No?‑‑‑(Indistinct reply)

PN734

The time from the first review to Mr Crouch writing to you, Mr Clarke?‑‑‑Yes, and he did write to me but that was his appeal, yes.

PN735

In a matter - all right - - -

PN736

MR LOVELL: Commissioner, if I might interject here. I think my learned friend has sort of called this a bit excruciating. I apprehend that this might arise from the way Mr Hardy is putting the questions and describing the aspects of the process and the relationship or difference relevantly between what is a training review and what is an appeal or a request for a review of the training review.

*** STEVEN JOHN CLARKE XXN MR HARDY

PN737

MR HARDY: Not at all, Mr Lovell, and I will start it again. Mr Clarke - - -

PN738

THE COMMISSIONER: Hold it, parties. Last time I checked, I was residing. Look, I hear the frustration in both your voices. I hear the frustration indeed in Mr Clarke's. But Mr Clarke, these are important questions and I wish to get the chronology absolutely correct. Now, Mr Hardy, I think you will need to put the dates very specifically to Mr Clarke.

PN739

MR HARDY: Yes, Commissioner.

PN740

THE COMMISSIONER: If I understand what is being put to you, Mr Clarke, is something that you don't particularly want to agreed to, which is that come the time for the - sorry, I'll rephrase that - shortly after receiving the review report you knew there were errors. Now if that's your evidence then you should be stating that absolutely categorically rather than having this dance. But if dance it has to be, I'm happy for a mazurka for the next hour or two, all right? So, Mr Hardy, if you can continue please?‑‑‑May I just say one thing, Commissioner?

PN741

MR LOVELL: Perhaps before we go on - - -

PN742

THE COMMISSIONER: No, you can't. No, Mr Clarke, you can't?‑‑‑I understand.

PN743

But Mr Hardy, if you can go through these questions directly, please.

PN744

MR HARDY: Thank you, Commissioner. Mr Clarke, could you look at document number 914 of the court book please? Apologies, I've given you the incorrect reference. I beg your pardon, 996?‑‑‑Yes, I'm there now.

PN745

That is the report that was approved by Stewart Hunt, correct?‑‑‑Correct.

PN746

Titled, 'The RTO 5168 ANS Initial Training Review of Mr Crouch', correct?‑‑‑Correct.

PN747

This review process began approximately six months before 17 February which is when this was dated, are you aware of that?‑‑‑I'm aware that Mr Crouch was under review, yes, about that time, yes.

*** STEVEN JOHN CLARKE XXN MR HARDY

PN748

From about August 2020?‑‑‑Yes.

PN749

He was reviewed and on 17 February this document that I'm showing you at 996 was published, correct?‑‑‑Correct.

PN750

Mr Crouch was given a number of days, approximately nine business days following the 180 days it had taken to prepare this document, and if you look at page 354 please - let me know when you've got that document please, Mr Clarke?‑‑‑Yes, I see 354, Mr Hardy.

PN751

On 3 March there's a letter addressed to you?‑‑‑Yes.

PN752

Do you see that?‑‑‑I do.

PN753

Do you remember receiving that letter?‑‑‑Yes.

PN754

The first paragraph refers to Mr Hunt's recommendation that his training be terminated under the document we've just looked at, at 996?‑‑‑Yes.

PN755

We can sit and read through this document. This was the first document Mr Crouch had sent to you, to inform you that there were material - or there were errors, I'll take the word, 'material' away - there were errors and omissions within that review report?‑‑‑Yes.

PN756

Do you accept that?‑‑‑I do.

PN757

So, you were aware of that from at least 3 March 2021, correct?‑‑‑Correct.

PN758

And not you've just become aware of those things more recently and in relation to this matter, that you had n idea around that time that there were errors. You knew from the very outset of Mr Crouch raising his concerns?‑‑‑Yes, I thought that's what I'd said as part of the original evidence. That was - - -

PN759

Unfortunately - - -?‑‑‑If it didn't come across that way - I became aware of these things when Mr Crouch raised them with me. I had not seen the training review prior to that.

*** STEVEN JOHN CLARKE XXN MR HARDY

PN760

Yes. And then you looked at the documentation as I understand your evidence, and if I ask you to turn to page 1033 which is the same document titled the 'Initial training, training review.' This is the next review that's done by Mr Bosnich, do you see that?‑‑‑Yes, approved by Mr Bosnich and done by Sarah Synott.

PN761

And you'd asked Mr Bosnich to include and deal with in this, at least at one part, the omissions on the practical components of this course?‑‑‑Yes.

PN762

In other words, PE6?‑‑‑Correct.

PN763

So, practical considerations, even though your evidence is you didn't regard them as such at the time you did your review, practical considerations are of utmost importance for this review process, correct?‑‑‑They were because at that time I didn't know why Mr Crouch had been put under review until I read through the training review.

PN764

Sorry, you would have been aware at the picking up of the document at 996. It sets it out in detail what that reviewer, what they thought of his training, correct?‑‑‑Correct.

PN765

So from the very outset, you did know, Mr Clarke?‑‑‑I knew that it wasn't included. I looked at the document because Mr Crouch had said these things were errors. I reviewed the document and asked for the second one to be completed to include everything for completeness before I did my full review of the circumstance.

PN766

That wasn't my question though. My question was that it is of importance, even though you might not have considered it, as your evidence was to the Commission, when you looked at the chain of the review and appeal process - there's an importance for the practical elements of this training course?‑‑‑Yes.

PN767

Because you directed your people, once Mr Crouch had alluded to you on page 354, at that very first instance, to include that material in the documentation?‑‑‑I directed them to re-do it and taking into account Mr Crouch's feedback, yes.

PN768

Well, to correct the errors?‑‑‑Yes.

PN769

And in the findings and in the outcomes that the organisation when they go through these processes of training review, they are not just looking at theoretical components, are they?‑‑‑No, they're looking at the whole training progress.

*** STEVEN JOHN CLARKE XXN MR HARDY

PN770

Yes, thank you. Thank you. Or, at least, should be looking at the entire process, correct?‑‑‑Yes.

PN771

At the end of the second review that we've just looked at, at page 103 from Mr Bosnich, you were aware that Mr Crouch wrote to you again, aren't you? And I'll get you the reference if it's here - 381, some 14 days, maybe a bit more after Mr Bosnich had handed down his review report. He wrote to you again?

PN772

MR LOVELL: Mr Hardy, I might just let you know that the witness, I think, might be having trouble locating the document that you've just taken him to.

PN773

MR HARDY: 381?‑‑‑Yes, I'm there now.

PN774

That's a letter that was sent to you dated 14 April 2021?‑‑‑Yes.

PN775

Do you remember receiving this letter?‑‑‑Yes.

PN776

You can read it if you need to - referring to the letter from Mr Bosnich recommending his training be terminated, so that was after you'd asked Mr Bosnich to fix things up, so to speak and to - - -?‑‑‑Yes.

PN777

Yes, and in this letter Mr Crouch continues to tell you that there are errors in the review, correct?

PN778

THE COMMISSIONER: Mr Hardy, can I just interrupt, please. I'm having difficulty locating this document. So, which page is it again?

PN779

MR HARDY: Sorry, it starts, Commissioner, on page 381 of the court book.

PN780

THE COMMISSIONER: Okay. That's why I'm having difficulty. All right, thank you. Please go on.

*** STEVEN JOHN CLARKE XXN MR HARDY

PN781

MR HARDY: Certainly, and it's the letter, Commissioner, that was authored by Mr Crouch to Mr Clarke following receipt of Mr Bosnich's review on 29 March which led to a letter to say that the training ought to be recommended to be terminated on 7 April. So, a week after getting that letter he writes to Mr Clarke. Mr Clarke, he outlines in that letter and you can look at page 383 as one example, around the part of the bottom hole punch, 'I also note there were a number of incorrect statements in the training review', correct?‑‑‑Yes.

PN782

He raises that and says and that's despite the fact that he's raised those issues previously, it's still not addressed, correct?‑‑‑Yes.

PN783

Mr Clarke, on 27 April 2021, if you can turn to page 385, you issue a one and a half page document where you, in light of all that information and from my understanding of the evidence, you are focused then on the theoretical aspects of Mr Crouch's performance, confirm that your decision is the ongoing recommendation of the termination of his training, correct?‑‑‑Correct.

PN784

It was at that juncture at page 386, that you tell him that he can appeal this and that you consider he has been afforded fair and flexible opportunities. Mr Clarke, what steps did you take to consider that fair and flexible opportunities?‑‑‑Taking into account Mr Crouch's submissions, which I've mentioned there in that letter, including the one from 14 April. The element was that he failed for the second time, the theory component which was a prerequisite to move through the course. We had a training support agreement in place and a reasonable period of time between returning to work following his (indistinct) to do the first exam, and a reasonable period of time for the second exam to be successful.

PN785

Without though, interrogating or checking on, for example, Mr Crouch's complaints about those who are said to have provide that support that you're talking about being reasonable. You took no steps to check whether that was accurate or not?‑‑‑No, I ensured that the training support agreement was in place and that it was completed.

PN786

No, that's not my question. Listen to my question, please, Mr Clarke. I said that you were aware that he was complaining to you on many occasions about, for example, Mr Watson and the training that was not provided to him over this very period that you're talking to the Commission about, and you have already told us that you did not go and speak to Mr Watson about that, correct?‑‑‑Correct. I did not speak to Mr Watson, correct.

PN787

But you still formed the view, on page 386, that he'd had a fair and flexible opportunity to address his issues?‑‑‑Yes.

PN788

Turn over the page, if you wouldn't mind, to 387. You'll see a document called the 'RTO 5168 Academic Complaints and Appeals Form'. Do you see that?‑‑‑Yes.

*** STEVEN JOHN CLARKE XXN MR HARDY

PN789

You can read the balance of the document if you want. That is the document that essentially kicks off the next process, which is this appeals panel that we had previously spoken about; correct?‑‑‑Correct.

PN790

One headed up after your recommendation there. Your direct report, Mr Harrington, chairs the body that looks at this review that's kicked off by the complaints and appeals form at 387 and following; correct?‑‑‑Correct.

PN791

The outcome of that, as you know, Mr Clarke, is that they maintain the recommendation to terminate his employment; correct?‑‑‑No, they maintained the recommendation to terminate his training.

PN792

Sorry, the training. I withdraw that. To terminate his training. And the next avenue, which was essentially to be the last avenue of any form of independent review of EAP - is where it would have gone next - that didn't occur, even though it ought to have under the RTO manual; correct?‑‑‑Correct.

PN793

Would you accept, Mr Clarke, that those reviewing at the outset Mr Crouch, being Schafer, Walton and Hunt, over that approximate eight-month period, in coming to their decision - and you can read their report, it starts on 996 - in coming to their findings and recommendations at the end of that document, which sit between pages 1007 and 1008, they took into account, in coming to their conclusion, both the practical and incorrect - sorry, both theoretical and incorrect practical information at that stage?‑‑‑Yes.

PN794

In relation to the theoretical aspects of it, are you aware that there was an instance, for example, where the average of a course, as contained in this review report, was wrong?‑‑‑No, I'm not aware of that.

PN795

You weren't aware of that at the time? Is that correct? You weren't aware of it at the time that the process - I should ask: that process that we just stepped through with the Commissioner, starting from that first document, those are all the reviews that were undertaken in this process; correct?‑‑‑Yes.

PN796

Over that period, on the theoretical component, you're saying, as I understand it, you weren't aware that, for example, there was an averaging typographical error contained in the review report, that it was represented that the class got a particular average when, in fact, that was incorrect; it was inflated in the report. Did you know that?‑‑‑Not that I recall, no.

PN797

Do you know that now?‑‑‑I'd have to look at the document to see.

*** STEVEN JOHN CLARKE XXN MR HARDY

PN798

It's dealt with in Mr Crouch's evidence, but I don't need to take that any further with you, I don't think. I just wanted to understand whether you were aware of it?‑‑‑Okay.

PN799

Can I just confirm, in your role over that time of the review period that we went through, the 17th, which started at, say, 17 February 2021 to the Harrington review, you had the ability to recommend that a trainee be re-coursed?‑‑‑Yes.

PN800

And that information that we went to - that very last page of this court book - earlier and saw that approximately - I know you had some qualifications on that - but approximately 50-odd per cent that were on training review were re-coursed. I know it's not all under your - it spans a broader period, but, for example, that would be something over your time that you could have had an impact on in terms of your position and making a decision to re-course a trainee?‑‑‑A small part of that, yes.

PN801

Yes, only, obviously, in the period you held this role?‑‑‑Yes.

PN802

It's an entirely discretionary decision that's made, the power given to those in that role? In other words, you're not bound one way or the other; it's in the discretion of the organisation, essentially?‑‑‑Yes.

PN803

There's nothing that mandates you to re-course; correct?‑‑‑Correct.

PN804

There's nothing that mandates you to terminate, or any of the other three options, because there's four options you can pick and there's nothing that mandates you to pick any one of them?‑‑‑Can you restate the question? I'm not sure if it was a 'Yes' or 'No' for that one. There's no - - -

PN805

Apologies. I'm just saying - I think earlier, Mr Clarke, we spoke about the four options that are available in this review process?‑‑‑Yes.

PN806

What I'm saying is that there's nothing that I am aware of that, on any given one of those, compels you to either implement or not implement it; it's entirely discretionary?‑‑‑Based on the circumstances, yes.

PN807

Yes, all right. Commissioner, could you give me one moment just to confer with Mr Crouch, if you wouldn't mind?

*** STEVEN JOHN CLARKE XXN MR HARDY

PN808

THE COMMISSIONER: Yes.

PN809

MR HARDY: Thank you, Commissioner, for the indulgence. I just have one question and it's a follow-on to a question I had asked Mr Clarke earlier, which was that in undertaking his review, I think the evidence was that he had not lined up the course results for the other trainees in Mr Crouch's cohort, and I just wanted to check.

PN810

Mr Clarke, I am assuming that you didn't, as part of your review, also run a review of how Mr Crouch was performing relevant to others that had been re-coursed in the past; is that correct?‑‑‑Correct. I focused my review on Mr Crouch's results, not on those of any other.

PN811

Yes, all right, thank you. That's the end of my cross-examination, Commissioner, thank you.

PN812

THE COMMISSIONER: Thank you, Mr Hardy.

PN813

Mr Clarke, I just have a couple of questions of my own. Your statement says, at paragraph 4, that you've had several positions over the time you have worked for Airservices Australia, including five years in various training and educational roles, and I'm assuming that's the most recent five years?‑‑‑Predominantly, Commissioner, that was from 2011 to 2014 when I was essentially the - I'm just trying to think of the title at the time - but the same as the ATC training lead that Mr Bosnich is in at the moment, or was in at the time of the second review.

PN814

Thank you. The question I want to come to is that you said in your evidence that the review, if I can call it that, that was conducted by Mr Harrington, involved two other people involved in the appeals panel, Ingrid Clements and Nicole Lewis?‑‑‑Yes.

PN815

You said they were not in the training department, if I can put it that way. Have I got that correct?‑‑‑That's correct.

PN816

So which part of Airservices Australia were they employed in?‑‑‑They're employed in the operational arm of the air traffic control section.

PN817

All right?‑‑‑When the trainees leave the initial training, they go into that operational area for their final field training, so it's where all the operational air traffic control's done.

*** STEVEN JOHN CLARKE XXN MR HARDY

PN818

Am I to take it that they were not part of your reporting line?‑‑‑Correct.

PN819

I then wanted to ask you: did you happen to know the person at your previous level that they would have reported to, ultimately reported to?‑‑‑In their current roles?

PN820

Yes. Well, when they were conducting that review?‑‑‑No, I don't know who that would have been.

PN821

Then I wanted to ask you some questions about the paragraph 55 you have included, which is about the employee assistance provider and you say:

PN822

At the completion of the RTO academic appeal process, if an appellant is dissatisfied with the outcome, they can refer the matter to Converge, Airservices' external employee provider, for mediation.

PN823

Have you had experience with matters being referred to Converge of this type?‑‑‑We had a discussion with Converge when it became apparent that they no longer provided the - - -

PN824

But that's not what I'm asking?‑‑‑Right. Yes, I am aware - - -

PN825

The question I had was whether you had experience with Converge with matters of this type?‑‑‑No, not personally.

PN826

Other than the policy which is referred to in the documents we have, what led you to the view that Converge could assist with that appeal?‑‑‑I had a discussion with a key member of another RTO, who had previously been with Airservices, and he informed me that the process that they followed is to - the final recourse is the mediation process, and in conversation with Converge, they said that was a service they could offer.

PN827

When you say 'a conversation with Converge', how recently was that?‑‑‑It was at the time that Luke had raised - and the same as Mr Harrington - that Converge weren't providing that service any more, so it was around - around the time following Mr Harrington providing Luke with his decision. So that was - - -

*** STEVEN JOHN CLARKE XXN MR HARDY

PN828

You said that they weren't providing that service any more. Does that mean that they were providing it in the past?‑‑‑It's in the documentation, but we went back a number of years and we couldn't find when they - if they did or didn't.

PN829

So it's not strictly the case that they weren't providing that any more?‑‑‑It was a service they couldn't provide any more, so I'm not aware of when it was - - -

PN830

I just want to be clear because if you're saying it was a service they once provided, then you need to tell me when that was. From what I heard you to say, they said they hadn't offered it?‑‑‑Yes, so I'm not aware that that is a service that they provide.

PN831

Then the second part of the paragraph I read to you says that the matter can be referred to them for mediation. Have you got experience with matters of this type where there's been a recommendation to terminate training and a peer was associated with that? Have you got experience where a matter has been referred to mediation?‑‑‑No, other than what was offered to Mr Crouch in this case.

PN832

Well, what does that mean?‑‑‑The person I'm aware that it's happened is Mr Crouch participated in mediation with Converge and another Airservices' employee. It was Mr O'Neill.

PN833

Who is Mr O'Neill?‑‑‑Mr O'Neill is the industrial relations manager.

PN834

When did you conclude, or when did you know, rather, that Converge could not provide that further appeal solution?‑‑‑It was at the time that Mr Crouch contacted them.

PN835

Right?‑‑‑Following the delivery of the decision by Mr Harrington. So, once the academic appeal process had finished, that was when Mr Crouch contacted Converge. They raised with him that they weren't aware of this process.

PN836

When you became aware that they did not provide that service, did you think about providing an alternative?‑‑‑Yes, that's where the mediation came from.

PN837

An alternative other than mediation?‑‑‑No.

PN838

Thank you. Mr Hardy, is there anything arising from those questions.

*** STEVEN JOHN CLARKE XXN MR HARDY

PN839

MR HARDY: There is.

PN840

In relation to that mediation that you are talking about, Mr Clarke, that's not a mediation conducted by anybody externally that you're referring to, is it?‑‑‑Yes, it was conducted by Converge, is my understanding.

PN841

Who do you say participated in that?‑‑‑Michael O'Neill.

PN842

And?‑‑‑And Mr Crouch.

PN843

In relation to - - -?‑‑‑That's my understanding.

PN844

In relation to the appeals panel process that your direct report, Mr Harrington, presided over, Mr Clarke, the Commissioner spoke about the other two that joined him on that panel. It's the case, isn't it, that, as the chair, he picks the panel?‑‑‑Yes, he selects the panel.

PN845

So your direct report, one, chaired the panel and, two, picked the other two that would sit with him on the panel; correct?‑‑‑Yes.

PN846

No further questions, thank you, Commissioner.

PN847

THE COMMISSIONER: Thank you, Mr Hardy. Mr Lovell, any re-examination?

PN848

MR LOVELL: Commissioner, only very briefly.

RE-EXAMINATION BY MR LOVELL [2.55 PM]

PN849

Mr Clarke, you will recall that Mr Hardy asked you some questions around the training review process and the processes that flow from it?‑‑‑Yes.

PN850

I'm just going to ask you several questions just to clarify the chronology of that process. In this instance, there was an initial training review process and a first training review report prepared?‑‑‑Yes.

PN851

Who was that prepared by?‑‑‑That was prepared by - just thinking back - Emma Schafer was involved and there was one other; I just can't remember her name.

*** STEVEN JOHN CLARKE RXN MR LOVELL

PN852

So, prepared by Ms Schafer and a second person had the role of reviewing Ms Schafer's preparation of the training review report?‑‑‑Yes.

PN853

And that's Mr Hunt?‑‑‑Yes, or he approved it, yes.

PN854

Could you briefly describe to the Commission the role of a person preparing the training review report?‑‑‑The person preparing the training review report gathers all the evidence into the format that you see in that training review, makes an assessment and a recommendation for approval of the manager, in this case Mr Hunt.

PN855

And what's the role of the manager approving the training review report?‑‑‑To review the report itself and accept a recommendation or not.

PN856

In this instance, the applicant requested that the recommendation made in the first training review report be reviewed; correct?‑‑‑Yes.

PN857

What was your role in reviewing that recommendation?‑‑‑Mr Crouch put an appeal to me, so I met with Mr Crouch to fully understand his appeal, and then I reviewed everything he'd said and compared it with the first training review report and asked for a second one to be done because of the omissions that Mr Hardy spoke about.

PN858

Yes, and in respect of the second training review report, it's correct again that there was one person responsible for preparing the review?‑‑‑Yes.

PN859

Who was that?‑‑‑This was Sarah Synott.

PN860

A separate person?‑‑‑Yes.

PN861

And a second person (audio malfunction).

PN862

MR HARDY: We seem to have lost Mr Lovell, Commissioner. I'm not sure if you have.

PN863

THE COMMISSIONER: We'd been doing so well. I have indeed. We will adjourn briefly.

*** STEVEN JOHN CLARKE RXN MR LOVELL

PN864

MR LOVELL: Again, there was - - -

PN865

THE COMMISSIONER: Mr Lovell, just please hold. Mr Lovell, unfortunately, you dropped out just as you were asking your last question. And you've frozen again.

PN866

MR LOVELL: My apologies, Commissioner.

PN867

THE COMMISSIONER: No, that's okay. Can you hear and see us okay?

PN868

MR LOVELL: I can, Commissioner. Are you able to hear and see us?

PN869

THE COMMISSIONER: We can. We will just go back on the record and then if you can put that last question again, please.

PN870

MR LOVELL: Yes.

PN871

I will re-ask the last question that I posed to you. That question was: in this matter, the applicant sought a review of the recommendation from the second training review report; correct?‑‑‑Say that again, please.

PN872

In respect of the second training review report, did the applicant request a review of the recommendation from that report?‑‑‑Yes.

PN873

Again it was your role to review that recommendation?‑‑‑Yes, in the light of the appeal, yes.

PN874

Mr Hardy separately took you to what was termed the academic appeals process. Is that a separate process from your process of reviewing the training review recommendations?‑‑‑Yes.

PN875

It is undertaken by separate personnel?‑‑‑Yes.

PN876

Thank you. You will recall that Mr Hardy asked you some questions around your involvement or otherwise in the training support provided to Mr Crouch. Do you recall those questions?‑‑‑Yes.

*** STEVEN JOHN CLARKE RXN MR LOVELL

PN877

As part of your review, how did you consider the training support that had been provided to Mr Crouch?‑‑‑Say the last sentence again?

PN878

I will ask you a slightly different question. As part of your review, did you consider the training support that had been provided to Mr Crouch?‑‑‑Yes.

PN879

How did you go about doing that?‑‑‑By reviewing the documentation to make sure that that training support was in place and appropriate to the circumstances.

PN880

Thank you. One final question. You will recall that Mr Hardy took you to the document right at the end of the court book at page 1051. Would you mind turning that up?‑‑‑Yes.

PN881

Mr Hardy, you will recall, asked you a question about those that are under the item 'Initial Training Re-course'?‑‑‑Yes.

PN882

You will see from this document that there's 57 people in that?‑‑‑Yes.

PN883

Are all of those people who may have been re-coursed, would that necessarily have arisen from a training review process?‑‑‑No.

PN884

In what other circumstances might somebody be re-coursed?‑‑‑A significant medical scenario.

PN885

Is that a common scenario?‑‑‑Not common.

PN886

I have no further questions for this witness, Commissioner.

PN887

THE COMMISSIONER: Thank you, Mr Lovell.

PN888

Thank you, Mr Clarke, for giving your evidence today. That's appreciated. You are released and free to go. Thank you very much?‑‑‑Thank you, Commissioner.

<THE WITNESS WITHDREW [3.01 PM]

PN889

THE COMMISSIONER: Mr Lovell, what I propose to do now is to adjourn for the day and to restart tomorrow at 10 o'clock, if that would be convenient.

*** STEVEN JOHN CLARKE RXN MR LOVELL

PN890

MR LOVELL: That is convenient. Might I, Commissioner - I'm just conscious that at least one of my witnesses has some commitments tomorrow afternoon. Is it possible to get an indication from Mr Hardy as to how long he might propose to take in cross-examination with those witnesses? I am very mindful they've been sitting outside this room for most of today.

PN891

MR HARDY: Yes, Mr Lovell, I think a fair gauge may be the time taken with Mr Clarke for each. Slightly shorter, perhaps, for Ms Crisara.

PN892

MR LOVELL: Very well. Thank you, Commissioner.

PN893

THE COMMISSIONER: Does that assist at all?

PN894

MR LOVELL: It does, Commissioner.

PN895

THE COMMISSIONER: I can start earlier, if that helps, but I'm not sure what your commitments might be.

PN896

MR LOVELL: I think a 10 o'clock start sounds sensible. That's fine, Commissioner. We'll make that work, thank you.

PN897

THE COMMISSIONER: All right, in that case we will adjourn.

PN898

MR HARDY: I would anticipate - - -

PN899

THE COMMISSIONER: I'm sorry?

PN900

MR HARDY: I would anticipate that the evidence would be done by lunch time.

PN901

THE COMMISSIONER: Well, there's a promise for you. All right, thank you very much, and we will adjourn on that basis. Thank you.

ADJOURNED UNTIL WEDNESDAY, 6 APRIL 2022 [3.02 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 APPLICANT'S OUTLINE OF SUBMISSIONS........................ PN78

EXHIBIT #A2 APPLICANT'S SUBMISSIONS AND REPRESENTATION... PN78

EXHIBIT #A3 APPLICANT'S OUTLINE OF SUBMISSIONS IN REPLY.... PN78

LUKE WILLIAM CROUCH, AFFIRMED.......................................................... PN86

EXAMINATION-IN-CHIEF BY MR HARDY.................................................... PN86

EXHIBIT #A4 WITNESS STATEMENT OF LUKE CROUCH WITH 30 ATTACHMENTS DATED 08/03/2022.................................................................................................. PN96

EXHIBIT #A5 WITNESS STATEMENT IN REPLY OF LUKE CROUCH WITH SIX ATTACHMENTS DATED 28/03/2022................................................................ PN105

CROSS-EXAMINATION BY MR LOVELL..................................................... PN111

THE WITNESS WITHDREW............................................................................. PN184

LUKE WILLIAM CROUCH, RECALLED....................................................... PN196

CROSS-EXAMINATION BY MR LOVELL, CONTINUING......................... PN196

RE-EXAMINATION BY MR HARDY............................................................... PN222

THE WITNESS WITHDREW............................................................................. PN286

MARCUS JAMES KNAUER, AFFIRMED....................................................... PN304

EXAMINATION-IN-CHIEF BY MR LOVELL................................................ PN304

EXHIBIT #R1 FIRST STATEMENT OF MARCUS KNAUER WITH SIX ATTACHMENTS................................................................................................................................. PN317

EXHIBIT #R2 SECOND STATEMENT OF MARCUS KNAUER WITH ONE ATTACHMENT................................................................................................................................. PN323

CROSS-EXAMINATION BY MR HARDY....................................................... PN326

THE WITNESS WITHDREW............................................................................. PN370

MARCUS KNAUER, RECALLED..................................................................... PN407

CROSS-EXAMINATION BY MR HARDY, CONTINUING........................... PN407

THE WITNESS WITHDREW............................................................................. PN489

STEVEN JOHN CLARKE, AFFIRMED............................................................ PN503

EXAMINATION-IN-CHIEF BY MR LOVELL................................................ PN503

EXHIBIT #R3 STATEMENT OF STEVEN JOHN CLARKE WITH 15 ATTACHMENTS PN510

CROSS-EXAMINATION BY MR HARDY....................................................... PN513

RE-EXAMINATION BY MR LOVELL............................................................. PN848

THE WITNESS WITHDREW............................................................................. PN888