PN2249

THE COMMISSIONER: Good morning, parties. Thank you for attending. Obviously we're up to the point of taking the closing submissions of the parties. I notice that the applicant, through Mr Hardy, has filed some written closing submissions this morning, so I presume that you wish to speak to those, Mr Hardy.

PN2250

MR HARDY: Yes, thank you, Commissioner. I provided those hopefully to assist with the duration of the closing submissions that I would need to make orally, but also to include what I hope will be references that you would find to be of assistance when considering the matter.

PN2251

THE COMMISSIONER: All right. Thank you. Now, before you move into the closing submissions, are there any preliminary or administrative issues that need to be dealt with before we proceed?

PN2252

MR HARDY: Not from the applicant, only to once again extend my thanks, Commissioner, to your accommodating the late request for an adjournment on Monday in light of the Supreme Court proceedings which unavoidably ran over into Monday morning, so I did want to say thank you again for that, but no other preliminary matters from the applicant.

PN2253

THE COMMISSIONER: All right. Mr Lovell, are there any from your side?

PN2254

MR LOVELL: Good morning, Commissioner. No preliminary matters from the respondent.

PN2255

THE COMMISSIONER: All right. Well, look, I'll just move to you, Mr Hardy, and let you address as you wish to.

PN2256

MR HARDY: Thank you, Commissioner. The closing submissions of the applicant are set out – an outline of those are set out in the material that has been provided earlier today. Essentially the applicant says that the primary question for the Commission to determine in its dispute is whether there has been a breach of clause 50 of the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2020‑2023 and, if so, whether the applicant should be re‑coursed or provided other remedial training in accordance with clause 50 to ensure that that provision is complied with by Airservices Australia.

PN2257

The applicant remains as of today an employee of Airservices Australia, an employee who remains 'stood down' at home and in the same state as he was during the course of the hearing, not performing any role or active duty for or on behalf of Airservices Australia. The evidence when considered on the whole, the applicant would submit, would satisfy you, Commissioner, that both of those questions that are posed by the applicant be answered in the affirmative and that is that there has been in the dealings of Mr Crouch, the applicant, a breach of clause 50 of the enterprise agreement which through re‑coursing and remedial training – that resourcing and remedial training is required to ensure that that provision is complied with by Airservices Australia.

PN2258

There is an objection by Airservices Australia that clauses 2 and 4 of schedule 1 to the enterprise agreement operate to exclude clause 50 and that clause 50 in its terms doesn't apply to the applicant's circumstances. We say the evidence establishes that you would not be satisfied of those two propositions and that the jurisdictional objections that have been raised by Airservices Australia should be rejected.

PN2259

The relevant schedule of the enterprise agreement that Airservices seeks to advance as excluding the operation of clause 50 - which, as you may recall, Commissioner, is set out on page 2 of our outline of closing submissions – requires certain requirements on or imposes obligations on Airservices Australia when managing an employee whose performance and/or conduct is unsatisfactory; how it should constructively assist that employee to improve their performance and conduct to a satisfactory level within a reasonable time, giving feedback and assistance as is appropriate.

PN2260

It also deals with obligations about principles of procedural fairness when managing an employee in relation to suspected underperformance or misconduct and sets out various requirements about prompt advice of certain concerns, providing sufficient time to be represented or supported, et cetera, which is clause 50.2(a) through to (e). Airservices Australia, where they have serious concerns, need to observe principles of procedural fairness and those are the relevant sections of that provision which apply to what I would call performance or conduct management of an employee. When one looks at schedule 1 of the enterprise agreement it says in clause 2 that:

PN2261

This schedule 1 applies to ab initios only.

PN2262

There is no dispute that Mr Crouch is an ab initio. It also says that:

PN2263

To the extent of any inconsistency, this schedule applies to the exclusion of the agreement.

PN2264

Nowhere in schedule 1 will you find anything to deal with the management of performance or conduct. The clause that is relied upon by Airservices in its objection is termination of employment, which is clause 4. This is not a case about termination of employment. Mr Crouch remains an employee of Airservices Australia.

PN2265

This is a case about the fundamental failures under clause 50 that deal with the performance management of Mr Crouch in respect of his training course and, secondly - you'll recall that at a point he was placed on training review - on the way in which that training review has been conducted and the ultimate disproportionate findings that have been made against Mr Crouch to recommend the termination of his training as part of that process. There is no reference to schedule 1 to performance or conduct management. There is no inconsistency in relation to schedule 1 and clause 50.

PN2266

The only witness that has been called by Airservices Australia in relation to its objection is Marcus Knauer. We say there was a more appropriate witness that Airservices could have called and should have called, being Mr Peter Curran. Mr Peter Curran, the evidence establishes – and I have provided references in our closing outline – was a current employee of Airservices at the time of this hearing. It was Mr Curran who executed the enterprise agreement that we are currently concerned with on behalf of Airservices Australia.

PN2267

The evidence that Mr Knauer sought to give was how schedule 1 and what was then a different number, clause 49 at that time of the older 2017 enterprise agreement which has been replaced with our current agreement, sought to operate during the negotiations and bargaining at that point in time. No evidence is led by Airservices Australia as to what occurred in relation to the current enterprise agreement and it has not sought to call a witness to give evidence and be examined on the negotiation process of a person like Mr Curran, where Mr Knauer accepts that the evidence that he was providing to you, Commissioner, was in relation to the 2017 enterprise agreement negotiation and not in relation to the current enterprise agreement.

PN2268

In any event, what was accepted in cross‑examination of Mr Knauer was that there is nothing in the schedule, even in the 2017 enterprise agreement or the current enterprise agreement, that deals with the managing of the employment of ab initios. Mr Knauer accepted in cross‑examination that there is nothing in the current version that deals with performance management and improvement processes of ab initio employees in that schedule.

PN2269

He accepted in cross‑examination that the summary of negotiations table, when they were dealing around 2015 for the earlier 2017 agreement, makes clear that very express wording that you might find in relation to personal and carer's leave – which I might remind you, Commissioner, says in the relevant schedule expressed in these terms:

PN2270

Personal/carer's leave: Clause 37 of this agreement does not apply to ab initios. Ab initios will accrue personal/carer's leave in accordance with clause 38 of this agreement.

PN2271

He concedes that such language is not used in relation to clause 49 – at that time. It's now clause 50 under this agreement – dealing with performance, conduct and termination of employment. He accepted in cross‑examination that while we have a 2017 performance improvement procedure, that procedure has express language that says:

PN2272

This procedure applies to all Airservices employees with the exception of ab initios and employees in probation.

PN2273

In other words, at that time Airservices Australia knew very well how to express an exclusion. It did so in relation to personal and carer's leave in the schedule, it did so in its performance improvement procedure. However, and very importantly in response to this jurisdictional objection, Mr Knauer accepted in cross‑examination and it is clear on the face of the document that nowhere does one find the same clear language excluding the application of performance and conduct processes to ab initio employees that is found in, for example, the 2017 improvement procedure or in relation to personal and carer's leave. That is because, simply, no such exclusion applies. The acceptance by Mr Knauer is that there is in the ab initio schedule nothing about performance improvement or performance management. He is the individual giving evidence on behalf of Airservices Australia.

PN2274

They simply cannot maintain a jurisdictional objection on the grounds of inconsistency in those circumstances. When one applies the principles – and I think myself and Mr Lovell are at one in terms of what those principles are – when looking at the ordinary meaning of the enterprise agreement read as a whole and in context, when considering the language of the enterprise agreement in light of its industrial context and purpose as has been put to you by Airservices and as challenged, when considering the evidence that is relied upon in support of the objection, when considering the evidence that could have been called but wasn't and when one adopts a purposive rather than a narrow pedantic approach to interpretation we say, Commissioner, you would be well satisfied to find that clause 50 of the enterprise agreement deals with three things: performance one, conduct two and termination of employment three.

PN2275

However, it cannot be said anything other than schedule 1 of the agreement deals only with the third of those points; termination of employment.

PN2276

THE COMMISSIONER: Let's say you're correct in that respect, what does paragraph 4 of schedule 1 do then?

PN2277

MR HARDY: At paragraph 4 in relation to schedule 1 it deals with the termination of employment aspect of clause 50.

PN2278

THE COMMISSIONER: Of course, so what is it there for?

PN2279

MR HARDY: The relevant provision in the schedule on termination would apply which would say that in the event that an ab initio fails to satisfactorily complete an essential component of training, Airservices may terminate their employment. Presumably what that means is that if Airservices got to that point, it would not need a separate termination process to follow any requirements or procedures in relation to termination that exist under clause 50.

PN2280

However, before we get to an ab initio failing to satisfactorily complete an essential component of training, we say there are aspects of clause 50 dealing with the program, the training, the performance during that point which are enlivened and unaffected by it.

PN2281

THE COMMISSIONER: In that sort of construction, clause 4 could be said to be redundant. If clause 50 sets out the consideration and procedural fairness process, well, you then eventually after procedural fairness get to a conclusion that someone has failed to satisfactorily complete an essential component of their training; so why is it there? If you've got to that finding after a consideration of all the things within clause 50 you've got that right, anyway, so what is the clause there for?

PN2282

MR HARDY: Commissioner, all I can say is perhaps it's for – I don't see the evidence about what it is for as led by Airservices Australia. There isn't evidence to enlighten, unfortunately, me to assist you with that question. All I can do is, on the face of it, read that clause 4 enables Airservices to terminate.

PN2283

One might say, well, you've got that right, anyway, so, yes, in relation to termination it is redundant, but it certainly doesn't capture the things we are talking about in our dispute dealing with performance management during training and outcomes that are occurring during reviews before a finding that there has been a failure to satisfactorily complete an essential component and a separate termination process which was – that was the evidence of a number of witness before you, Commissioner.

PN2284

They are two very separate and distinct processes; the performance management process and procedure during employment and a subsequent termination of employment process and procedure. They are two very distinct processes, as has been the evidence in cross‑examination of at least two of the Airservices witnesses.

PN2285

THE COMMISSIONER: All right. Thank you.

PN2286

MR HARDY: The second aspect of the objection is that Airservices says the clause 50 in its terms doesn't apply to the applicant as an ab initio trainee because it says that that clause is directed at assisting an employee who is under‑performing to return their performance to a satisfactory standard and is intended to apply to qualified experienced employees. There is no evidence before you supporting such a proposition.

PN2287

That proposition should be rejected. It is contrary to the express wording of clause 50 which applies to 'employees' of which the applicant is one. If there was any intention to exclude ab initios or to have that clause, as is put to you, Commissioner, to apply only to qualified and experienced employees, clause 50 in our submission would require a number of express provisions by way of amendment and indeed definitions. For example, what is meant by a qualified employee, what is meant by an experienced employee? There are no such provisions or definitions. No witness has been called to support that proposition. In our submission, the contention must fail.

PN2288

The applicant says further in response to the jurisdictional objection that – as I previously submitted – there are two separate processes of performance management or conduct management and termination. Before one gets to the termination process, the agreement would require the organisation to have met its obligations under clause 50 and also ensuring that it has met other requirements, for example, under the National Vocational Education and Training Regulator Act and the standards registering training organisations that were examined during the hearing.

PN2289

Our submission is that clause 50 applies in its terms and the applicant's case is that those terms have been breached fundamentally and repetitively by Airservices during the course of his employment. It has been some time since the evidence was heard in this matter, Commissioner, so I might just restate a few fundamental points about how this training operates, just by way of assistance.

PN2290

There is training that is essentially set up in phases. Training that the applicant has undertaken thus far is phase 1 and phase 2. There are essentially three further phases that would then follow should the applicant have proceeded to complete phase 2. The first phase, phase 1, really is theoretical training and there is evidence before you referenced in our outline of closing submissions about the results are strong results; he achieved 92 per cent, 90 per cent, 83 per cent, et cetera, for the majority of those theoretical examinations. The pass mark for those exams, as you may recall, Commissioner, is 70 per cent.

PN2291

On two occasions in phase 1 the applicant scored 66 per cent and 67 per cent on the first attempt. However, what you do have before you, Commissioner, is evidence that failures during these theoretical exams is certainly not uncommon. Other students in this first phase do fail exams from time to time and once the applicant sat his supplementaries for those two that I've referred to where he scored 66 and 67 per cent, he passed both of those examinations by – well, on the first 70.2 per cent and the other he achieved 90 per cent.

PN2292

He completed phase 1, so for all intents and purposes my submissions and the evidence on phase 1 gives you background as to his general performance, passing 10 of the 12, and then in relation to the other two passing both of those in his supplementary exam showing the ability to do so, the ability to improve, the ability to pass on a supplementary examination.

PN2293

This dispute is really then about what happened in phase 2 and has two components to it, you may recall. The first is in relation to the lack of training and support that was provided to the applicant while in phase 2. That's the first component in breach of clause 50. The second, in what I will submit was a sham review process during the review process that followed at a particular point in phase - - -

PN2294

THE COMMISSIONER: Can I just pause you there, please. I understood you to say that – you said there was a lack of training and support while in phase 12 in breach of clause 50.

PN2295

MR HARDY: Yes.

PN2296

THE COMMISSIONER: Can I just be precise what the breaches you say are in that respect.

PN2297

MR HARDY: Yes, certainly. So in relation to phase 2, the breaches that we say arise would be in relation to the – apologies, I'm just getting up the relevant clause. There was, pursuant to clause 50(a) of the enterprise agreement, a failure on behalf of the organisation to constructively assist Mr Crouch to improve his performance. I will take you to where that occurred in terms of what aspect of the training.

PN2298

THE COMMISSIONER: Sorry, I'm just trying to locate the clause. Which clause?

PN2299

MR HARDY: It's clause 50, Commissioner. Clause 50(a). It starts, 'The primary focus of managing - - -'

PN2300

THE COMMISSIONER: Okay, I've got 50.1. Is that the - - -

PN2301

MR HARDY: Apologies, apologies. Yes, apologies, my numbering has gone out. It's 50.1. It's on page 14, as an example of - - -

PN2302

THE COMMISSIONER: I see, yes. Okay.

PN2303

MR HARDY: Apologies, 50.1.

PN2304

THE COMMISSIONER: Yes. Thank you.

PN2305

MR HARDY: The example that I will provide in relation to that is that during the course of phase 2 the applicant was meeting all his expectations and was receiving comments like, 'You've had a really good run. You picked up coordination, you're taking on feedback and adapting your style. Keep it up.' Nothing challenged by Airservices Australia in relation to the applicant's conduct as phase 2 was beginning and progressing.

PN2306

He was assessed as demonstrating and developing. In our submissions I have referenced where that sits in annexure LC4. He was listening to feedback, he was adapting his processes, he was displaying knowledge in required processes in managing opposite direction standards, he is working hard to consolidate his learning, all matters which to us say at the end of the day that sort of training, support and re‑coursing should have been continued for him.

PN2307

Unfortunately what occurred is he has a period of absence – you might recall, Commissioner – due to COVID. He was booked off by work by his general practitioner, and there's evidence in the court book and reference in our submissions of that. When he came back to work he was required as part of his training to sit an exam called ASA119 Separation Standards Theory.

PN2308

He was away for two weeks. He had informed Airservices Australia of his conditions and concerns. There's no evidence to show what support was provided to him to assist him to pass that exam and in fact he failed that exam. The evidence shows he was overloaded. He was operating on materially compressed timelines. He failed that exam and performed poorly in his progress evaluation.

PN2309

He then, as part of his training, meets with Mr Michael Boyd and Mr Chris Watson. You will recall, Commissioner, that Airservices Australia provides no evidence – not a scrap of evidence – from Mr Boyd. He is not called as a witness, neither is Mr Watson. You will see in the material Mr Crouch is incredibly critical of the way in which at this stage they failed to support him during the process.

PN2310

He describes, for example, that Mr Watson spoke to him in a way that was hostile, told him his paper was horrible, it wasn't worth reviewing together, that he was hostile towards him. He was annoyed that he had to attend and try and assist the applicant, and this was at a time where he was being trained and before he was being asked to sit a further exam having come out of the difficulties of COVID‑19.

PN2311

No evidence before you, Commissioner, from Mr Watson; Mr Watson, at the time of hearing, a current employee of Airservices Australia. No evidence before you, Commissioner, from Mr Boyd. The very two gentlemen charged with the active training and management of Mr Crouch, the individuals who are criticised heavily by Mr Crouch for failing to provide support. If one goes back to section 50, failing to effectively manage him, to constructively assist to a satisfactory level within a reasonable time, giving him a course of training or other remediation.

PN2312

Heavy criticism in witness statements, not responded to by either of those gentlemen; a deliberate choice by Airservices, unexplained, and we say a Jones v Dunkel inference ought to be drawn by that failure. Their evidence would have in no way supported any contention that there had been compliance with clause 50 of the enterprise agreement. The applicant was also not cross‑examined about what he says about his dealings with Mr Watson and his criticism of Mr Watson; unchallenged. Where Mr Crouch gives evidence about the failures of those supervising him directly, being Mr Watson and Mr Boyd, that evidence we say ought to be accepted in its terms.

PN2313

After the experience – horrid experience – which the applicant describes has hostile and unsupportive, left to go through his best devices to do the supplementary exam, in the context of him otherwise being a very sound student if you look, Commissioner, at the evidence before you, there is comparative evidence about how the rest of the cohorts score, how the rest of his class scores, how those that have been re‑coursed score; he had been a very, very sound student.

PN2314

He was diligent, he worked hard. Yes, unfortunately this COVID was an inconvenience, but what occurred to him following that was, frankly, unacceptable, unfair and in breach of obligations under this enterprise agreement. It was from that very juncture that the mistreatment of Mr Crouch commenced and has not abated. We say it must abate.

PN2315

The applicant was then required to go and – told to review his exam answers alone; not challenged, not disputed, not cross‑examined on. That does not comply, in our submission, with constructively assisting Mr Crouch to improve his performance as required under clause 50.1. It also doesn't meet the 50.2 procedural fairness requirements.

PN2316

The applicant's evidence is he was told to go and fill out a work book by himself. There was no time or interest to go through it or assist him complete his work book so that he could have a fair chance at passing his supplementary exam. That evidence, we say, should be accepted. The tone and demeanour was hostile. The applicant gave evidence, which again was not challenged, that he was aware of formal complaints being made against Mr Watson from others in similar cohorts. Nothing before you to rebut that; not challenged in cross‑examination. It should be accepted.

PN2317

There was evidence put before you, Commissioner, where there were examples of where exactly the applicant required this assistance. There is evidence, for example, on question 10 on page 951 of the court book, question 2 on page 965 of the court book, where it makes plain that this applicant requires assistance to respond and understand what appropriate responses should be so he could have a fair opportunity to improve his performance in a way that we say is required under clause 50.

PN2318

The applicant gives evidence he was fearful of victimisation towards him given the approach that was being taken by Mr Watson at this time in the meeting with Mr Watson and Mr Boyd; nothing to contradict that. He tries his best alone, without support and without compliance with performance management requirements, and sits the supplementary exam and by the smallest of margins, 1.3 per cent, just misses out on his 70 per cent pass mark. He gets 68.7 per cent.

PN2319

This is in a context where, as can be seen on a careful analysis through the phase 1 progress and his progress in phase 2, both theoretical and practical, he certainly had the ability with the requisite support and assistance to pass exams. The fact of it is he was simply, following his return from COVID, not provided with that in relation to the training he was undergoing at Airservices.

PN2320

Importantly, around that same time we've got in phase 2 a theoretical component, Commissioner, but you will recall there is also a practical component. The applicant went and did his progress evaluation; what is called PE6. That's in the court book on page 1042. He was assessed as being satisfactory on all components except two, but most notably the practical component about maintaining separation – which is the theoretical exam that he had just failed by 1.3 per cent – he went within two or three days after that failure and showed his practical understanding and he's assessed, even though he had no support, as satisfactorily having met that requirement.

PN2321

He has shown - yes, without support he missed out by 1.3 per cent - practically he knows how to do it. He is marked satisfactory, yet what we see in what I've described as the sham review process that follows is that when he is placed on training review – in other words, things stop and, 'We now review you to see what do we do with you next' - Airservices Australia leaves out his performance in PE6. They focus fairly on his 1.3 per cent failure and say, 'We've got four options. We can continue your training, we can give you further training support intervention, we can re‑course you or we can terminate your training.' They jump to the conclusion of terminating his training, a decision which we say breaches clause 50 because it did so in a way that didn't observe procedural fairness.

PN2322

He wasn't promptly advised of this. It took, you will recall, over six months - and we'll get to a bit more on that in a moment. He was then given five days to respond to it, which was ultimately increased even though there was resistance to give him more than five days from Mr Clarke to respond to that review, notwithstanding that Mr Clarke was being told on the evidence of Ms Crisara at least every two weeks for six months that Mr Crouch was bellyaching about the fact – and was stressed about the delay, about the duration of this review.

PN2323

He asks for a few more days to respond. The initial response from Mr Clarke is, 'No, we've taken 180 days ourselves to put this to you in our review. You have five days to respond.' It was then extended graciously with an extra four days. It fails on every test of procedural fairness. It fails every requirement under 50.2. The information that they were proceeding on was wrong.

PN2324

The review that had been undertaken was undertaken by three people. The first person was Jessica Walton, the second person was Emma Schafer. That was reviewed and approved by Stewart Hunt. These were the three charged at the point where Mr Crouch had just failed his first supplementary exam on the separation standards, but had passed the practical component. Those three were asked to come and review him, and decide, 'What should we do with this man? Which of those four options do we take?'

PN2325

Commissioner, not one of those people comes before you in this Commission to give any evidence about that process. There is no Mr Hunt, there is no Ms Walton, there is no Ms Schafer. We say to Airservices where are they? Why weren't they called? Another Jones v Dunkel inference to be drawn, unexplained. There were errors littered throughout their review. Mr Crouch, in his letter of 3 March, which is at 1010 of the court book, gives great detail of all those errors. Not one of those individuals comes before you to give evidence and be examined.

PN2326

They leave out the fact that he has actually practically passed the very thing that they're concerned about that he missed out on by 1.3 per cent and they recommend his training be terminated. Let's also recall, Commissioner, that the effect of that generally leads to a separate termination process where employment terminates, because ongoing employment is conditional upon the individual remaining in training.

PN2327

There is no other organisation like Airservices Australia existing to enable Mr Crouch to go and pursue the work that he wishes to pursue and the training he wishes to pursue. They are the only organisation on the evidence – there's evidence before you on that from Ms Crisara – who provide this training and this work. It's not as if you can leave McDonald's in one suburb and go and work at McDonald's in another. He has no option other than Airservices Australia, yet the manner in which they have treated him is nothing short of appalling. No one to explain what I call the first review; the Hunt review.

PN2328

The concerns that Mr Crouch then has with the timing and the duration of six months to undertake this and put its concerns to him, I think there was evidence you will recall, Commissioner, of, 'Well, there was a bit of a backlog and we followed these things in order. We follow them and we close out one review to the next', and you will remember that a sheet was prepared by Airservices Australia that we asked to have completed following the hearing to show when people's review not only began, but when did they finish.

PN2329

What is very clear from that material is that evidence is simply false. It's just wrong. It isn't the case from that document that reviews – and I think one of your questions, Commissioner, during the course of the hearing was, 'Well, couldn't you jump the order? What if there was a priority to review one person over the other?' knowing, as we did, Mr Crouch was regularly in an uncontested way and in an admitted way by Ms Crisara, who was the mental health person trying to support him, complaining about the effect that this was having on him; incredibly stressed, nowhere else to go if this goes against him.

PN2330

The evidence was, 'We start at the beginning and we work through.' Well, when we called for the document to show the actual dates, that evidence before you, Commissioner, is false. They don't follow in that order. It isn't started sequentially running from the first in, best dressed onwards. There are certainly instances where that order changes. We have set out those instances in paragraph 81 of our outline of submissions and referenced the relevant students.

PN2331

We have also referenced where certain students' reviews were completed at the same time, suggesting they were done concurrently, which is again against the evidence that was led by Airservices which you may recall, Commissioner, was that they can only do this one at a time. They're so stretched with staffing it has to be a one at a time review process. Again, evidence which is contradicted by that material and shouldn't be accepted.

PN2332

Ms Crisara gave evidence that she reported to Steven Clarke, who you did hear from, on a very frequent basis - every two weeks over a six‑month period – to reflect the concerns that Mr Crouch, the applicant, was raising in relation to the duration of this review. She also said that she spoke to a number of people like Mr Boyd to find out how long this review for Mr Crouch was going to take.

PN2333

She found the duration to be regrettable and unfortunate, and also gave evidence that confirmed that when Mr Crouch had requested a bit more time on his side to respond to these very serious concerns with a consequence of termination, his request for five days to respond to 180 days' review was declined by Mr Clarke. The significance of that is that Mr Clarke sits in charge of all of these review processes.

PN2334

The next man to review the Hunt review after Mr Crouch's appeal is one of Mr Clarke's direct reports, Mr Bosnich. Now, Mr Bosnich's evidence, Commissioner, it was simply – no credit should be attached to – findings against Mr Bosnich should be made in relation to his credibility as a witness. Mr Bosnich was involved in the second review with an individual called Ms Synott.

PN2335

Ms Synott wasn't called to provide evidence and we were told she led the review, and Mr Bosnich read over it, made no changes to it and approved it. The very person that did the review, Ms Synott, doesn't appear before you to give evidence of how the review was undertaken; another Jones v Dunkel inference we say to be drawn in relation to the second review.

PN2336

Mr Crouch on review, first review, there was Steven Clarke involvement, seriously problematic. Mr Crouch writes about it, goes on review to another - Mr Clarke, the appointee in circumstances where Mr Clarke's attitude is, 'We won't give you more than five days initially', until he literally explained that, 'Well, it's because you've not given me relevant information that I can't meet the five days.' 'All right, we'll give you an extra four.'

PN2337

He puts Mr Bosnich in charge of this next process. The problem with Mr Bosnich was that despite him turning up and in‑chief saying, Commissioner, he has done 15 reviews, what he actually concedes in cross‑examination is Mr Crouch was his first review at this college. He sought to present to you an experienced 15‑man reviewer and until examined doesn't explain that Mr Crouch is the very first person in the college that he reviews.

PN2338

His review continued to contain and be infected by the same errors as contained in the Hunt review. We provided to you, Commissioner, a comparison document showing a red line between the Hunt review, the first review, and the Bosnich review, the second review. Other than doing the right thing and including the practical PE6 data which should have been included at the outset and minor tweaks to it, there's nothing that is done of substance in that second review. It continues with the same finding of termination.

PN2339

There is no evidence to show how these reviewers checked or tested any of what Mr Crouch was putting as part of procedural fairness, which clause 50.2 would dictate that Airservices comply with. The evidence that Mr Bosnich gives is that training reviews are not the norm and most trainees sail through and complete the diploma. That evidence was quite contradicted by Mr Clarke's evidence, which shows a success rate of the course of 52.56 per cent - paragraph 78 of his statement – and annexure SE15 showing at least 32 per cent of trainees placed on review. The evidence that Mr Bosnich gave was simply not credible.

PN2340

There is nothing that compels any reviewer to make or refrain from making any decision in relation to the four options that are available to the reviewers at the time of review; to re‑course, to terminate, to give more support, et cetera. There are no thresholds, there are no 'if the circumstances arise, this what must follow'. It's entirely discretionary. The evidence was consistent with that.

PN2341

Mr Bosnich's evidence is that when he then gets to exercise discretion and he's asked to do his review, he does not even read – on his evidence – the first training review report; the Hunt report. He is asked to review it and be the reviewer on Mr Crouch's appeal. His evidence to the Commission is, 'I didn't read that report. I'm the reviewer of it, but I didn't read it.' He says his understanding was that, well, this document was just going to contain information with a couple of additions and amendments to certain dates.

PN2342

In fact his initial evidence before you, Commissioner, which you'll recall on review of the transcript, changed quite significantly. He actually said, well, he wasn't doing a second training review, that he was part of training review 1. In other words, he was part of the Hunt review and, if that was the case, sequentially how you get the Hunt review and then you get a long document from Mr Crouch with all of his objections to that and saying, 'Please review it', what was represented to him was, 'We will review it', and Bosnich is the reviewer.

PN2343

On the face of the documents, Mr Bosnich and Ms Synott do that review, yet his evidence is, 'I don't regard that as a second review. I was part of the first review. It was extension', and we've given you the references to the transcript in paragraph 107 of our closing submissions as to where that evidence falls. He regards this list as being one process, entirely inconsistent with what Mr Clarke told you, Commissioner.

PN2344

He requested a new training review be completed - this is paragraph 67 of his statement – which included a consideration of PE6 to be conducted by Sarah Synott and approved by Frank Bosnich, a direct contradiction to Mr Bosnich's evidence which is, 'No, I didn't do a second review. This is all part of the first review. It's an extension of training review 1. It's not what occurred. We had one training process.'

PN2345

Mr Clarke calls it a new training review. It was represented to Mr Crouch as a new training review, purportedly under some principle of fairness, yet the very person signing off on the review makes plain that's not what he thought was happening. In our view what culminates in Mr Bosnich's letter of 7 April confirming his findings - the terms of that letter we say are very, very important in light of that evidence. It's on page 474 of the court book, the letter that is authored and signed Mr Frank Bosnich to Mr Crouch:

PN2346

With regards to your –

PN2347

he says –

PN2348

previous training review and PE6 being missed, I'm writing to advise you of the findings of your training review 2. This review assessed the elements of your training and provided recommendations accordingly.

PN2349

The evidence is entirely inconsistent with what Mr Bosnich gave in cross‑examination about this being all one review and when he talks about the assessment of elements of training, et cetera, he says he didn't even read review 1 from Mr Hunt. He didn't speak to Chris Watson, who Mr Crouch had complained about following review 1 and put in a written letter in dispute of review 1. He doesn't meet and find out, 'What's all this about?' the very person who on 3 March 2021 – that's a document that runs in the court book from page 354, very detailed – my memory tells me it's 20 pages, it may be a little bit more, from Mr Crouch. Mr Bosnich, despite the requirements under clause 50, pays no regard to that.

PN2350

He says he didn't even see that letter. He is the man charged with reviewing review 1. The evidence he gives you is, 'I don't see it as a separate review', which is contrary to his letter to Mr Crouch. He says, 'I didn't read review 1 from Mr Hunt and I didn't read the 20‑page document that Mr Crouch wrote', that I just referred you to, Commissioner, outlining all the issues associated with review 1. All that happens is we see an inclusion of PE6 results and everything else by and large remains the same; a sham, sham process, one devoid of any form of process or procedure required under clause 50 of the enterprise agreement.

PN2351

He gives evidence to you that he wasn't aware that Mr Crouch had been complaining about the lack of support that had been provided to him. He certainly includes nothing in this report about any form of work that he or Ms Synott had done to interrogate or investigate and it's certainly consistent with his evidence which was, 'I didn't read report 1.' He didn't do anything, yet it's represented to him as, 'I've now done' in this letter on 474 'planning review 2', and tries to get Mr Crouch to believe there has been some form of assessment and fair review done in relation to his concerns; concerns which he says he didn't even see.

PN2352

The best we get from Mr Bosnich is he thought on 7 April when this letter had been authored and signed he was going to meet with Mr Crouch to tell him about this. He would have taken some feedback from Mr Crouch at that point to maybe alter some things in terms of his review. That simply in our view fails any form of procedural fairness test and didn't occur in that way.

PN2353

Mr Bosnich said he had discussions with Sarah Synott and Kylie Boyd. Those discussions are nowhere to be seen; not in the review report, not in Mr Bosnich's evidence. We don't hear from Ms Synott, we don't hear from Ms Boyd. He says he didn't make any changes to the draft version prepared by Ms Synott, but he thinks he reads drafts thoroughly. He did not meet with the applicant prior to making a decision to continue this termination of his training recommendation and we say fails in that review to offer any form of proper or reasonable support or procedural fairness.

PN2354

Mr Bosnich says he formed a view that fair and reasonable support had been provided to the applicant by reference to files and records. No notes of where that occurred and confirmation that he didn't speak to Mr Watson who was actually discharging that training support. His conclusion of fair and reasonable support has been provided. You must attach no weight to that, Commissioner. Mr Crouch was provided no support that gets anywhere near fair or reasonable.

PN2355

Mr Bosnich accepted in cross‑examination as a matter of fairness he was in fact compelled to speak to Mr Watson; that he failed to do so. He also admitted in cross‑examination he didn't consider things like how other people were going in these courses; who had been re‑coursed, how did those people go. He should have done so before making his continued finding of the Hunt report.

PN2356

THE COMMISSIONER: Can you just pause there for one moment, please. I'm trying to find within your submissions this morning – I've just found it. I was interested in you saying that Mr Bosnich said he could not recall whether he spoke to Watson, but I've just found the paragraph you have referred to.

PN2357

MR HARDY: Yes.

PN2358

THE COMMISSIONER: When I read the document, it answers my questions.

PN2359

MR HARDY: Thank you, Commissioner. It's clear from the evidence that he gave that he made the decision to terminate Mr Crouch's training solely on the basis that he had failed ASA119 Separation Theory exam. He said that a number of times in his oral evidence in cross‑examination. He did not consider all relevant facts and circumstances. He didn't interrogate matters. He looked at one result, one exam, which was failed and then we know the unchallenged circumstances which Mr Crouch says followed to that second exam on that same 119 Separation, and that's the basis of his decision.

PN2360

He doesn't take into account that he passes the practical component of it in circumstances where he's not compelled or mandated that even if he has failed to – with no support or the greatest of support that he has to then terminate; he has got discretion. This was a sham process conducted by Mr Bosnich. He tries to sort of put some blame on Mr Crouch to say that he gets up, walks out of the meeting room and slams the door behind him. Well, you know that that's disputed by the applicant and certainly Ms Crisara, who was also an attendee at that meeting, her evidence was, 'I didn't observe any rude, disrespectful or hostile conduct from any participant of the meeting.' Again, inaccurate evidence from Mr Bosnich.

PN2361

We submit, as I have said, that Mr Bosnich should not be found to have been a credible witness. His evidence changed. It was objectively inaccurate and contrary to the documents that you have before you. Mr Clarke's direct report - Mr Bosnich finishes his review. Mr Crouch continues to complain and writes another lengthy letter to Airservices which he wrote on receipt of a letter from Mr Bosnich. He sent that letter on 14 April - that's at page 381 of the court book – to Mr Clarke to outline the ongoing concerns that he has with this process.

PN2362

Mr Clarke's subordinate, having just now reviewed this - Mr Clarke now says, well, he's undertaking this review. He does this and upholds the finding of termination of training. Now, importantly in relation to Mr Clarke, he had started in the role of acting operational training head on 6 January 2021. It was a new role for him at that time in the college and prior to that he had been in a role of national coordination centre manager outside of the learning academy.

PN2363

Mr Clarke was invited by the applicant to properly review things, to look at his history thoroughly, to correct errors which after the second review remained alive in the assessment of him. Mr Crouch provides great detail of Mr Watson with the lack of training leading to that failure of this exam which seems to weigh so heavily on people's decisions in terms of Mr Crouch's fate. Mr Clarke's evidence is, 'I made then my decision totally on the papers', paragraph 132 of my submissions of this morning.

PN2364

He didn't speak with any members of staff other than Ms Schafer to talk about if there was a training support agreement. He doesn't speak with Mr Watson who is the man actively involved with training and supporting allegedly Mr Crouch, who Mr Crouch says he failed in that. He doesn't speak to him. He doesn't go and interrogate matters. He looks and says, 'There's a training support agreement.' He doesn't check or satisfy himself as to the content of it. He just gets a copy of it and says, 'Well, you've had support' – I'm at paragraph 134 – 'Support has been given consistent with the support provided to other trainees in comparable positions.'

PN2365

Who are they? No evidence of those people, what support they got, what checks he actually did other than looking at documents to satisfy himself of that conclusion. That conclusion should not have been made by Mr Clarke in those circumstances. He then forms the view there is no evidence, he says, to indicate an increased likelihood of success if we have to extend training or training support; extraordinary. Without speaking to the people who are supposed to have been training and supporting Mr Crouch, without going to test the failures that Mr Crouch was saying were ongoing in relation to that support and believes forms the basis – paragraph 135 – that:

PN2366

Airservices Australia had already provided a level of support to the applicant. He is unable to successfully complete the examination.

PN2367

Mr Clarke was aware that there was a challenge on that level of support, a challenge which we put to you, Commissioner, was raised by Mr Crouch and never contradicted by those who are said to have failed so poorly, so dismally in the support of him. Mr Clarke, being the person who also initially wouldn't grant Mr Crouch an extra couple of days to provide his first response; the man who was responsible for Mr Bosnich; the man who then does an on the papers review and says, 'No, it's been good enough for you. Your training needs to terminate.'

PN2368

Mr Clarke doesn't speak to Michael Boyd, the training delivery manager. He references Emma Schafer, a competency and standards specialist en route person. She wasn't called to give any evidence in these proceedings and he says he asked her for the training review document. He only gives a cursory consideration to practical results, because those practical results were good. They're before you. You see that he passes and he is deemed satisfactory, including in this area of separation standards, and he had been asked by Mr Crouch in his letter in preparation of the second training review to consider these sorts of matters.

PN2369

Mr Clarke accepted that in its first review Ms Schafer, Ms Walton and Mr Hunt who undertook that review had reached their conclusion taking into account theoretical and incorrect practical results, but he does nothing to go and interrogate all of this. He reviews it on the papers and says, 'We should terminate your training.' He had the discretion to provide more support. He had the discretion to re‑course him. Many do; the evidence will show 50 per cent undergo a review and get re‑coursed. That would have been the appropriate recommendation.

PN2370

Instead, what Mr Clarke does – who has been centre to this whole process so far – is tells Mr Crouch, 'You're going to undergo – and the next course of appeal given you're still concerned by all of this – an independent panel.' The independent panel is chaired by another of Steven Clarke's direct reports, Mr James Harrington. Mr Harrington doesn't appear before the Commission to give you any evidence of his independent panel review. What we do know is he was a direct report of Mr Clarke and he selected two other people to sit on a panel with him.

PN2371

THE COMMISSIONER: Can I just ask you about the contention you're putting there, which is essentially that the reviews which Mr Clarke initiated could not have been independent because the people reported to him. Was that proposition put to Mr Clarke in his evidence?

PN2372

MR HARDY: Yes, it was put as a bias and as a conflict of interest, and that word 'bias' appears in clause 50. He conceded in cross‑examination that there could have been a perception of conflict, a perceived conflict through the review personnel, as, too, did Ms Crisara.

PN2373

THE COMMISSIONER: All right. Thank you.

PN2374

MR HARDY: This is just one example I'll take you to. It's in the transcript reference PN608.

PN2375

THE COMMISSIONER: I think 598 also deals with the subject.

PN2376

MR HARDY: Yes, yes. In 608 it's directly put to him:

PN2377

So then that followed being Mr Bosnich in one form, yourself, then your appeal panel in another form chaired by a direct report and Mr Bosnich. I'll ask again –

PN2378

because I had some difficulty getting concessions, you may recall, out of these witnesses –

PN2379

could that be if not an actual, a perception of bias in that process with independents?

PN2380

This is Mr Clarke:

PN2381

I accept there is a perceived conflict of interest, but what I'm struggling with is the question about bias. If it's the same thing, then, yes.

PN2382

THE COMMISSIONER: Thank you for that. That then raises another question, which is sort of the other side of the coin and something you referred to previously. You were making submissions to the effect that there is only one employer in town; that Mr Crouch can't go elsewhere if he wants to pursue his trade or profession. Look, I accept that, but in respect of the bias or potential conflict does not the same problem arise in respect of who Mr Clarke could have feasibly referred a review to?

PN2383

MR HARDY: We would submit no, for a number of reasons. (1) there are other areas within Airservices where personnel could have undertaken those reviews; (2) there was a review process which was expressed to involve independent people. Mr Harrington reports to Mr Clarke, but the two that he selected, for example, the evidence that was led by Mr Clarke was that those two people, for example, had no reporting line or no involvement to Mr Clarke at all. Those two people were in - I don't have the reference directly in front of me, but it was something like they were in the operations side of the organisation.

PN2384

The third problem, which is what I'm getting to then, Commissioner, shortly following this is that what then the rules and the RTO training manual requires is an external body called Converge to essentially be the last – so external to Airservices Australia to come in and finally determine these sorts of appeals if the internal processes aren't working. Where we will get to is Mr Crouch following that process, then knocking on the door of Mr Clarke and saying, 'There are still big problems here. My appeal needs to continue.'

PN2385

The process on the RTO manual requiring this external body, Mr Crouch being told to contact that external body and then turning to him and saying, 'I'm sorry, we don't do this work for Airservices', despite the RTO training manual describing it as being the last form of review and so‑called independent review by another body. It's just taken - not there, despite it being obligated under its own RTO training manual to have offered that up to Mr Crouch.

PN2386

We say there were a number of other people that could have undertaken this; in fact on the independent panel James Harrington, the people that he chose to sit with him, their supervisor. We were told by Mr Clarke those other two people had no lines of any reporting or interaction with him, but this could have been set up independently. It wasn't. The same individual that has shown on our submission incredible bias and preconceived ideas, and decisions against Mr Crouch, continues in the process, then invites him to go and seek the external body to be the sole determiner of this appeal.

PN2387

They, on the phone to Mr Crouch, say, 'Sorry, we don't do this any more', and we understand the evidence is that now Airservices Australia has amended - those rules have now been subsequently amended to remove that part, that it didn't actually exist. Yet Mr Crouch believed and it had been represented to him, 'Bosnich will do a review. This review from Mr Harrington will be independent and you will have this external body if needed', none of which are true.

PN2388

THE COMMISSIONER: I have yet to form any views about what the evidence means in totality, so I need to exercise caution in what I say. What I do pick up is that there was the issue that you refer to about Converge, but then there was also the evidence given by Mr Clarke to the effect – and this is from PN832 – that Mr Crouch participated in mediation with Converge and another Airservices employee, being Mr O'Neil, who is the industrial relations manager.

PN2389

MR HARDY: Yes.

PN2390

THE COMMISSIONER: Now, is there anything you want to say about that?

PN2391

MR HARDY: The only thing that I would say about that is that there were without prejudice discussions held with Mr O'Neil who is, as I understand, the head of human resources of the organisation, about a resolution of the matter. Mr Crouch was involved with some of those without prejudice discussions with him, I was involved in some of those without prejudice discussions with him with the view to try and resolve the dispute that Mr Crouch was bringing to this Commission, not - - -

PN2392

THE COMMISSIONER: Can I say this – I mean, look, I understand the submission about without prejudice discussions. That's helpful and unhelpful. I'm yet to see a mediation which is characterised as being without prejudice. I doubt people would go and do a mediation which says, 'This is with prejudice.' Now, the problem I face – and, look, there is no evidence really that appears to be reliable about the product of that mediation.

PN2393

MR HARDY: No, there isn't.

PN2394

THE COMMISSIONER: All right. Thank you.

PN2395

MR HARDY: So the concern Mr Crouch has with this independent panel is finding out Mr Harrington reports to Mr Clarke from the time that Mr Clarke commenced his role as the acting operational training head on 6 January 2021 until that role was handed over in June 2021; so Mr Crouch is left with the position that all training reviews and appeals are undertaken by Mr Clarke or persons connected with him.

PN2396

Again I reiterate, Mr Harrington who leads the panel - who leads the independent panel - is not called, to assist you in determining this dispute, to give any evidence whatsoever. An employee of the organisation, no explanation yet again on this witness, a key witness, given as to why Airservices has not sought to call him. He leads the independent panel. Another Jones v Dunkel inference, in our submission, to be drawn.

PN2397

Then, as we have just in our exchange, Commissioner, alluded to, there was a requirement that an aggrieved trainee who is still dissatisfied with a review can have a referral to Converge International, a requirement under the RTO training manual and student handbook, which as I have alluded to wasn't met. So, other than then commencing these proceedings, there were no other options in terms of the review and appeal process that were available to Mr Crouch.

PN2398

The evidence at page 68 of the court book, para 129, is that subsequently Airservices has modified its appeals procedures and the student handbook following this event, but of course that is of no comfort to Mr Crouch. Mr Crouch, to try and avoid these proceedings – time, resources, costs – makes an offer to Airservices Australia. He indicated, and did put this in evidence before you, 'Re‑course me. Put me through phase 1 if you need to. If you feel my results are okay, I'm okay with that. Put me through phase 2. If I fail one exam, I will immediately resign.' The response, 'No.'

PN2399

To me, from the commencement of his return following COVID after an otherwise positive, successful and consistent with other trainees' experience, he comes back and is created in a way by the organisation that had a view, sought to terminate him and ran a process which fails on any standard of reasonable or fair.

PN2400

He has, therefore, found himself needing to seek the assistance of the Commission for determination and consideration of all of this evidence, of course at a cost he says which could have been avoided by a re‑coursing which was at all times available with extra support, which if things have been looked at closely and carefully would have been the appropriate course of action to be taken; 'Put me on. If I fail one more, you don't need to do anything, I will resign.'

PN2401

More than 50 per cent – as you have at page 1051 of the court book – numbers there which show, as we ran through the maths in cross‑examination, are 50 per cent of students who have their training reviewed are re‑coursed. We say the applicant ought to have been afforded with that opportunity and what that opportunity would do is allow Airservices Australia to cure the defects and provide the training, the support and the fairness that it is obligated to do under the industrial instrument that covers itself and Mr Crouch.

PN2402

The final point is that given the way in which the evidence has landed in these proceedings and what Mr Crouch apprehends may be the outcome of these proceedings, he will at the appropriate time be seeking a costs order against Airservices Australia which I would be happy to address you on at a later point in time as required, but foreshadowing that at the outset under section 611. Unless you have got any questions, Commissioner, those were the comments that I wish to make and I seem to be – I think your associate mentioned 1 o'clock was your preferred lunchtime – at 1.01.

PN2403

THE COMMISSIONER: You are very precise. There were a couple of questions. Both parties have referred to re‑coursing and obviously from your perspective, Mr Hardy, that's the preferred order, if I can put it that way, that you seek. Is there a definition anywhere within the material as to what re‑coursing is? I assume I know.

PN2404

MR HARDY: Yes, certainly. Could I take that on notice, Commissioner, and let you know?

PN2405

THE COMMISSIONER: All right. The other thing you may wish to take on notice is that you have made in the course of the submissions this morning a request that I make inferences in respect of Airservices Australia for not providing evidence from a number of people. They are obviously serious submissions I need to consider carefully. Can I please ask you to provide me with a list of the people that you say fall into that category?

PN2406

MR HARDY: Certainly.

PN2407

THE COMMISSIONER: All right. Thank you.

PN2408

MR HARDY: What I might do, Commissioner, is perhaps their name and their role in the proceedings, as to why that request has been made just to - - -

PN2409

THE COMMISSIONER: You don't need to do that.

PN2410

MR HARDY: You're just happy with the names? All right.

PN2411

THE COMMISSIONER: Yes, I just need the names so that as I'm ticking off the decision when it comes to be written - - -

PN2412

MR HARDY: Yes.

PN2413

THE COMMISSIONER: - - - I know precisely there are six, seven or whatever it happens to be.

PN2414

MR HARDY: Certainly.

PN2415

MR LOVELL: Commissioner, might I just intervene there. It would assist me if I could have that list over the luncheon period to make sure I have an opportunity to properly respond to it, because by my count we were up to 11 but I just want clarity perhaps from Mr Hardy as to the circumstances he says that adverse inferences should be drawn.

PN2416

MR HARDY: Certainly. I will be in contact with Mr Lovell about that.

PN2417

THE COMMISSIONER: All right. Thank you. The other thing I should do is mark your outline of closing submissions, which I think is – we're up to exhibit A6, so that will be the applicant's outline of closing submissions.

PN2418

MR HARDY: Thank you, Commissioner.

EXHIBIT #A6 APPLICANT'S OUTLINE OF CLOSING SUBMISSIONS

PN2419

THE COMMISSIONER: Mr Lovell and Mr Hardy, based on what you said a moment ago, should I make the adjournment until 2 o'clock? Would that be appropriate, Mr Lovell?

PN2420

MR LOVELL: Yes, Commissioner.

PN2421

THE COMMISSIONER: In terms of you will need to review the list and so on.

PN2422

MR LOVELL: Yes, Commissioner, that would be helpful.

PN2423

THE COMMISSIONER: All right. In that case we will adjourn until 2 o'clock.

LUNCHEON ADJOURNMENT [1.01 PM]

RESUMED [2.07 PM]

PN2424

THE COMMISSIONER: Good afternoon again, parties, and thank you, Mr Hardy, for providing the list of the people you say that inferences should be drawn about. What I will do now is turn to you, Mr Lovell, for your submissions.

PN2425

MR HARDY: Commissioner, if I may just – I've spoken to my friend about this. That list I provided to Mr Lovell just on the commencement of the luncheon adjournment, I just wanted to make sure it was all correct. There has been no change to it, Mr Lovell, to the copy that just been sent to the Commissioner.

PN2426

If I could, just in relation to two questions you raised that I took on notice, Commissioner, the definition of re‑coursing – and I've had a short discussion with my friend just about where that might sit. I think on page 217 of the court book is probably as good as it gets in terms of what re‑course under the document that starts on page 186 of the court book, being the initial training manual, provides, which is that:

PN2427

Should a trainee fail to meet the requirements for a milestone assessment and the delivery manager identifies re‑coursing as the preferred option –

PN2428

noting that that may be all a little bit circular –

PN2429

a formal remedial training plan must be developed in consultation with the trainee delivery manager and ANS initial training manager –

PN2430

then who the request goes through. So what the applicant would be seeking, should the applicant have convinced you that he be re‑coursed to comply, is that he be placed in the next available course; either phase 1, which despite having passed given the effluxion of time he recognises he may need to do phase 1 again, or to the commencement of phase 2 pursuant to the formal remedial training plan as required in clause 11.2.2 on page 217.

PN2431

The second point, Commissioner, is I think when we were touching on mediation you asked a question about any material on mediation in the evidence and I think I very quickly said no. I have been since reminded on page 437 of the court book - it doesn't divulge the details of without prejudice communications and certainly Mr Lovell's and my position is that the without prejudice content of any discussions in that isn't before the Commission certainly, but there is, however, that letter from Mr Crouch to Steven Clarke on 29 September referring to Mr Crouch's invitation to participate in without prejudice mediation and he sets out some of the concerns that he raises.

PN2432

Following that process, on pages 490 and 491, coming out of that process just confirming with Michael O'Neil that there is a status quo provision in the enterprise agreement and that following this process is where Mr Crouch commenced this dispute. I just thought I would draw that to your attention given my earlier answer was 'no' so quickly in light of that, not that that document sheds any light on necessarily the process, but it is a document that references that mediation. Yes, those were the matters that I sought to raise.

PN2433

THE COMMISSIONER: All right. Thank you. What should I make of the mediation for the purposes of procedural fairness? You were critical of the Converge process and I understand why that is, but if I recollect the evidence correctly there was then a movement, at least in the evidence, from the Converge thing to the mediation possibility.

PN2434

Now, you say, if I understand you correctly about Converge, that it was never put forward as a – I'm sorry, that's incorrect. It was put forward as being the final step in the process, but you put forward that it's a deficient part of the process.

PN2435

MR HARDY: Yes.

PN2436

THE COMMISSIONER: Where I was trying to get to with the question I asked before and similarly now is, well, what do I make of the mediation step for the purposes of procedural fairness?

PN2437

MR HARDY: Yes, so what we would say in response to that is the relevant step for Converge to be involved was designed to be a process where Converge would be involved to essentially conduct an open appeals review of the material, much like Messrs Hunt, Bosnich, Clarke and Harrington did, for them to review it and for them to make essentially – and I'm just about to find the reference – for them to make a finding and for that finding to be binding on the parties, and to resolve at least for the purposes of the obligations under the manual the obligations and avenues for dispute under that manual.

PN2438

It is in respect of that process that we say – that is the independent arbiter for want of a better word in Converge International - that it was going to perform that role. That didn't occur and without divulging the without prejudice nature of the discussions in mediation, that as I'm instructed is not a process that was the purpose or undertaken in respect of that mediation.

PN2439

That mediation, as matters can often be, sought to resolve things not by Converge reviewing all the material and making a decision that they would speak to or influence the parties on, but to rather have a facilitated discussion to see if this dispute can be brought to an end in other ways as these sorts of without prejudice conversations can often be with things like exits, et cetera, et cetera, but it wasn't the independent review step that was required to be taken under the manual.

PN2440

THE COMMISSIONER: All right. Thank you. In the course of you speaking, I've found a note about a question I meant to ask you prior to the lunch break, as well, so I'll do that. You opened by indicating that Mr Crouch is still employed by Airservices Australia.

PN2441

MR HARDY: Yes.

PN2442

THE COMMISSIONER: Is that on the basis of paid leave or unpaid leave?

PN2443

MR HARDY: As far as I understand it, it is paid. I'll get instruction on that, but as far as I – if it's different, I'll let you know.

PN2444

MR LOVELL: I can confirm, Commissioner, that it's on the basis of paid leave.

PN2445

THE COMMISSIONER: All right. Thank you. Is that all, Mr Hardy?

PN2446

MR HARDY: Yes, thank you, Commissioner.

PN2447

THE COMMISSIONER: Okay. In that case I will turn to you, Mr Lovell. Thank you.

PN2448

MR LOVELL: Thank you, Commissioner. I am mindful that on the first two days of hearing I deferred making any detailed submissions, so you haven't had the benefit of detailed submissions other than our written opening until now. I propose, Commissioner, this afternoon to organise my submissions into four quite discrete parts. First I'll address you on schedule 1 to the 2020 ATC Enterprise Agreement and explain why we say it operates to exclude clause 50 in the applicant's circumstances here.

PN2449

Secondly, I'll move to why we say clause 50 in its terms is not directed at the circumstances of an ab initio trainee undertaking the ATC training course. Commissioner, if you accept either of those propositions, this application must be dismissed. It would not be necessary to make determinations in relation to the extensive factual material filed and adduced about the management of the applicant's academic performance.

PN2450

If you don't accept either of those two propositions, Commissioner, thirdly I'll turn to address you on the proper construction of clause 50. That will serve to highlight the scope of what is regulated by clause 50, if it has any application here, and what we would say are the significant difficulties in applying clause 50 to the applicant's circumstances.

PN2451

Fourthly and finally, I'll address the various factual matters and the application of clauses 50.1, 50.2 and 50.3 to those matters. I'll defer my comments in relation to the various matters about the state of evidence before you to that fourth section of my submissions, because I think those matters only come into issue if we get to that point.

PN2452

I'll turn first then to the submissions in relation to the proper construction of clause 2 and clause 4 of schedule 1 to the current agreement. In this respect, Commissioner, the evidence before you is primarily that of Marcus Knauer, a senior manager within the respondent directly involved in bargaining for the 2017 enterprise agreement and I'll return to that in one moment.

PN2453

There are a couple of preliminary matters that Mr Hardy has raised with you though that I need to address first. The first of those matters is that it has been characterised by the applicant that these submissions are jurisdictional sort of in nature. That's not accurate. They are simply a threshold matter that go to the proper construction of the enterprise agreement. What we say is if the agreement is given the construction that we urge though, that the matter is to be dismissed. Without playing semantics, we're not questioning the jurisdiction of the Commission here, what we're inviting you to do is construe the terms of the agreement.

PN2454

Secondly, Mr Hardy has raised two purported issues about the nature of the evidence adduced by Airservices about the circumstances in which the schedule was included in the 2017 EA. If I understand those submissions correctly, the first is that there is a concern raised that the evidence relates to bargaining for the 2017 Air Traffic Control Enterprise Agreement, being the occasion on which the schedule was first introduced into the enterprise agreement and not the current 2020 Airservices Enterprise Agreement which is the instrument obviously before you in this dispute.

PN2455

The problem that I have with that point is that it ignores the fact that the schedule was introduced in bargaining for the 2017 Air Traffic Control Agreement and has remained unchanged in its successor. If we're concerned about what those provisions properly read in surrounding context mean, it is proper and indeed orthodox to direct attention at the bargaining process that resulted in the inclusion of those terms in the agreement.

PN2456

The second concern that has been raised is that Airservices could have adduced or in fact should have adduced evidence from the office Mr Curran who signed the 2020 ATC Agreement on behalf of Airservices. We take issue with that submission. What we have done is adduced evidence before the Commission from a manager directly involved in bargaining for the relevant agreement and indeed in the development and negotiation of the relevant provisions.

PN2457

Airservices' approach in that regard is conventional and indeed, Commissioner, in transcript at PN381 you recognised that oftentimes disputes of this nature might relate to bargaining processes that are one or two or even three generations removed from the current instrument in operation and that in circumstances where a clause is introduced, and subsequently remains untouched, it's perfectly proper for us to have regard to the context in which those terms were included.

PN2458

Having addressed those two preliminary points, Commissioner, I'll move on then to the approach to construing the particular provisions of the agreement we base here. I agree with Mr Hardy that the principles of construction here are well settled and need to be repeated from our written submissions.

PN2459

We say that this starts with an examination of the terms of the enterprise agreement and we recognise that the drafters are likely to be of a practical bent of mind, and there is a need here to look at the circumstances in which the schedule was introduced. We say those circumstances – that surrounding context, if you like – is directly relevant to obtaining the bargaining participant's objective intention in introducing this schedule.

PN2460

Commissioner, if I can take you to the terms of the schedule to the agreement. My submissions will be directed at sort of some very particular aspects, so it would assist if you had the terms of the schedule before you.

PN2461

THE COMMISSIONER: Yes, I do. Thank you.

PN2462

MR LOVELL: Thank you. I will just go through that schedule very briefly. Clause 1 defines what an ab initio employee is. That's uncontroversial here; everyone accepts the applicant is an ab initio employee. The second clause confirms that this schedule only applies to ab initio employees and it also provides that to the extent of any inconsistency, the schedule applies to the exclusion of other parts of the agreement, a clause that you'll quite often find in schedules to enterprise agreements in one form or another.

PN2463

Clause 3, which I'll return to briefly in a moment addresses personal leave entitlements, and then the final subject matter is clause 4, which of course is the principal focus here and it provides that Airservices may terminate of an ab initio trainee's employee if the trainee fails to satisfactorily complete an essential component of their training.

PN2464

I have a few initial observations, Commissioner, to make about this schedule. The first is that clause 2 is framed as an exclusionary provision. That is, it operates to exclude the terms in the body of the enterprise agreement to the extent that those terms are inconsistent with the schedule. You heard the lead negotiate, Mr Knauer, describe clause 2 in those terms.

PN2465

Clause 3 is a different type of clause. It's referring to two alternative regimes in respect of a particular subject matter; personal/carer's leave. Without descending into the detail, Commissioner, those two clauses are different in these respects: clause 37 on the one hand provides for essentially unlimited sick leave for operational air traffic controllers covered by the agreement and clause 38 provides more conventional sick leave arrangements, an accrual of 18 days' personal/carer's leave per annum for other non‑operational employees.

PN2466

Clause 3 is formulated, as Mr Hardy has taken you to in very particular terms, when faced with two clauses about the same subject matter – personal/carer's leave – clause 3(a) proceeds to switch one of those clauses off in respect of ab initio employees and switches the other alternative clause on. In those circumstances clause 2, as I've termed it an exclusionary provision, has no work to do in respect of the subject matter of clause 3. There is no inconsistency that arises. The terms of clause 3 are plain enough.

PN2467

THE COMMISSIONER: It could also be said that clause 2 is redundant on the drafting of clauses 37 and 38. There is no obvious indication that you need clause 2 of schedule 1 really.

PN2468

MR LOVELL: I agree, Commissioner. If schedule 1 only included clause 3, clause 2 wouldn't have any work to do. I agree with that proposition.

PN2469

THE COMMISSIONER: Sure, so why include it?

PN2470

MR LOVELL: Yes, so why include it and that brings me to clause 4, which of course is our primary focus here. Clause 4 is in quite different terms to clause 3, not only in respect of the subject matter but the way the clause is designed. It describes the subject matter, termination of employment, not at large, Commissioner, but in particular circumstances where an ab initio employee doesn't complete an essential component of their training.

PN2471

Having identified a subject matter in clause 4, we say clause 2 does then have work to do. Clause 2 must operate or be given operation to exclude inconsistent terms in the body of the agreement. Now, how do we say clauses 2 and 4 work together here? We say clause 4 excludes clause 50 insofar as it relates to the management of an ab initio employee's academic performance. We don't say and nowhere in our submissions or case will you find a suggestion that clause 50 has no operation in respect of an ab initio employee, for example, in respect of conduct matters. What we say is the effect of clause 4 is to exclude the performance provisions of clause 50.

PN2472

Now, Commissioner, if clause 50 does not have that effect, the question we properly put to you is what effects does it have? What provision of the 2020 Air Traffic Control Enterprise Agreement would it have the effect of excluding to the extent of any inconsistency? We say there are no other provisions to which it could be directed. Apart from clauses 3 and 4, schedule 1 doesn't deal with any other subject matter.

PN2473

We have already, I think, accepted that clause 3 doesn't rely on clause 2 for its operation, so clause 4 must. We say clauses 2 and 4 of the schedule operate to exclude the performance aspects of clause 50 and, if that's not the case, you essentially render both clauses 2 and 4 nugatory or redundant. Commissioner, you will recall that this morning you asked Mr Hardy a question about this very subject matter. I think you posed it, 'Well, what does clause 4 do?' Our submission is the answer you received is entirely unpersuasive.

PN2474

Mr Hardy has not been able to point to a part of the EA that clause 4 would, with the operation of clause 2, exclude. Mr Hardy said to you, 'Well, Airservices hasn't led evidence to enlighten you what clause 4 is for.' To the contrary, Commissioner, our whole case is premised on clause 4 and clause 2 operating to exclude and only exclude the performance aspects of clause 50 to the agreement.

PN2475

Commissioner, that's the text of the agreement. I want to take you now to the surrounding context, which you're entitled to take into account in seeking to ascertain the objective intention of the parties in including clauses 2 and 4 in their terms.

PN2476

THE COMMISSIONER: Before you do that - - -

PN2477

MR LOVELL: Yes.

PN2478

THE COMMISSIONER: - - - can I just ask you this question, please, about clause 50. Schedule 1, clause 4, on your construction - the practical effect of it is that consideration of termination of employment of an ab initio may proceed without procedural fairness as described in clause 50 to the extent that it relates to an essential component of the person's training. Have I got that correct?

PN2479

MR LOVELL: Yes, Commissioner, that's precisely our argument.

PN2480

THE COMMISSIONER: All right. Sure. So if you're contemplating terminating the employment of an ab initio for reasons other than unsatisfactory completion of an essential component of their training - for example, misconduct – then you would agree that clause 50 does apply to them?

PN2481

MR LOVELL: It does apply and has been applied in those circumstances, are my instructions.

PN2482

THE COMMISSIONER: Okay. All right. Thank you. Please proceed.

PN2483

MR LOVELL: Thank you, Commissioner. I will turn then, moving beyond the text of the schedule, to the surrounding context in which it was included in bargaining for the 2017 agreement. As I have said, you should look to that context to ascertain the objective intention of the parties in including schedule 1 in its terms. We say that context has a number of relevant elements.

PN2484

First, the basis on which employment as an ab initio trainee is undertaken as an ongoing employee, but subject to satisfactory completion of the training course and then subsequent field training. The training course is for people with no air traffic control experience at all. The training is undertaken within the strictures of a legislative framework covering registered training organisations and is subject, as you've heard extensive evidence about, to processes of training review, review of the training review and a separate academic appeals process.

PN2485

There are very particular features, as you've heard, of the ATC training course; rigorous standards, it's resource‑intensive, delivered by qualified air traffic controllers. There are limited places and high value rates. None of that evidence has been challenged. In fact it has been embraced by the applicant. It's evident that the bargaining participants for the 2017 agreement, employer and union, were aware of all of those matters. They are part of the surrounding context in which bargaining is occurring and Mr Knauer's evidence in that respect was unchallenged.

PN2486

Mr Knauer's evidence included a recognition that ab initio trainees are a fundamentally different class of employees to qualified air traffic controllers; that it was not intended that ab initio trainees have access to necessarily the full range of entitlements applying to operational ATCs under the then extant 2012 agreement, and schedule 1 was directed at clarifying the terms that did apply to ab initios. We say that viewed in its surrounding context, that the purpose of schedule 1 is evident.

PN2487

Commissioner, you will recall that shortly before the first day of hearing in this matter – the previous day, I believe – we filed a second supplementary statement of Marcus Knauer that was admitted as exhibit R2. I'm conscious, Commissioner, that that exhibit is not contained in the electronic court book. May I ask if you have a copy of that exhibit before you?

PN2488

THE COMMISSIONER: That's an awfully good question. Just one moment.

PN2489

MR LOVELL: Thank you, Commissioner.

PN2490

THE COMMISSIONER: Just one moment, I'll have to search for that. What was the date that was filed on?

PN2491

MR LOVELL: I believe it was filed on 4 April, being the Monday afternoon.

PN2492

THE COMMISSIONER: Yes, I think I've just found that.

PN2493

MR LOVELL: It's the short statement, Commissioner, of several paragraphs with one annexure.

PN2494

THE COMMISSIONER: Right now is exactly when my database has suddenly decided to collapse. I will just try and - - -

PN2495

MR LOVELL: Commissioner, I hope it wasn't noticeable, but mine decided to collapse about halfway through my first item, so we're all tortured by technology sometimes.

PN2496

THE COMMISSIONER: We are. My associate has just emailed it to me. All right. Please go on.

PN2497

MR LOVELL: Thank you, Commissioner. I wanted to take you to the annexure MK07, which is the performance improvement procedure which is essentially in plain terms the policy adopted by Airservices to implement the requirements of clause 50 of the Air Traffic Control Agreement. You will see first, Commissioner, on page 1 of the performance improvement procedure that this is version 5 and it's the version of the procedure effective 10 March 2017. I take you then next to page 2 of the procedure and you'll see at the top, as is common with procedures of this nature, a table explaining the nature of the changes implemented between version 4 and version 5, and that's in the table at the top of page 2.

PN2498

If I take you to the final sentence it is expressed as clarifying that the procedure does not apply to ab initios by which it is referencing ab initio employees covered by the ATC enterprise agreement and employees in probation.

PN2499

Commissioner, this is directly relevant context. This policy was updated, as is evident in March 2017. It's been updated to clarify, not change but clarify that ab initios were not covered by the procedure and that update occurs in the very same month that the 2017 Air Traffic Control Agreement, the first agreement incorporating the schedule in the terms that I've just taken you to, commenced operation.

PN2500

The update is on 17 March; the agreement commences 30 March. We say that this is direct and contemporaneous evidence of what Airservices understood to be the outcome of including the schedule in the agreement and reinforces the construction that we urge before you now.

PN2501

Mr Hardy, in his submissions, both written and oral this morning, sought to make something of some apparent concessions that he says that Mr Knauer made in the course of cross-examination. We'd invite, Commissioner, in that respect your attention to the following paragraphs of transcript where Mr Knauer under cross-examination gives clear evidence as to the intent and purpose of the schedule.

PN2502

Those paragraphs are at PN 449, 475, 479 and then finally I think in response to a question by you, Commissioner, at 482 and 483. We say that in all the circumstances the surrounding context here validates Airservices' position that inclusion of the schedule was clarificationary in nature. It was seeking to reflect existing practice.

PN2503

Again, in response to a question from you, Commissioner, Mr Knauer gave evidence confirming that clause 50 and the performance improvement procedure had not previously been applied by Airservices to ab initios. That ab initios were instead covered by the registered training organisation processes, and that's at PN 482.

PN2504

THE COMMISSIONER: The concern I've got with that and, again, I'm by no means bringing a determined position to you, is that when I read through the summary of construction principles which are set out within AMWU v Berry, at paragraph 114, in subparagraphs 11 to 13 and 14 of that primary paragraph, they make it clear, I'd suggest, that the hopes and intentions of a bargaining representative on their own are insufficient.

PN2505

That, instead, the admissible evidence is limited to evidence tending to establish objective background facts which were (indistinct), evidence of such objective facts as to be distinguished from evidence of the subjective intentions of the parties.

PN2506

The problem with Mr Knauer's evidence is, I think, that he is in that latter category. He might have thought that that's what he was bargaining for. He might have hoped that was what he was bargaining for but without the evidence of the bargaining representatives on the other side of the table, I don't know.

PN2507

MR LOVELL: Commissioner, I can address that question in two ways. I think first as a matter of principle I don't cavil with anything that you've said. I think it's then the application of that principle to this case. We're not leading this evidence as objective intention of Mr Knauer's sort of understanding. We're seeking to put before you the objective facts that we say evidently were and would have been known to both parties. We had - - -

PN2508

THE COMMISSIONER: What are they?

PN2509

MR LOVELL: Commissioner, you appear to have frozen on my screen.

PN2510

THE ASSOCIATE: Parties, I believe the Commissioner has frozen. I will adjourn the proceedings.

PN2511

MR LOVELL: Thank you.

PN2512

THE ASSOCIATE: Parties, the Commission is adjourned.

SHORT ADJOURNMENT [2.29 PM]

RESUMED [2.31 PM]

PN2513

THE ASSOCIATE: The Commissioner is just figuring out the issues with the technology and I'll let you know when he's going to rejoin. Our apologies.

PN2514

MR LOVELL: Thank you, Associate.

PN2515

MR HARDY: Thank you, Associate.

SHORT ADJOURNMENT [2.32 PM]

RESUMED [2.39 PM]

PN2516

THE ASSOCIATE: Parties, the Commission is now in session.

PN2517

THE COMMISSIONER: Well, hello again and we were doing so fabulously before that.

PN2518

MR LOVELL: Commissioner - - -

PN2519

THE COMMISSIONER: Can you - - -

PN2520

MR LOVELL: Sorry.

PN2521

THE COMMISSIONER: Can you hear and see me adequately, Mr Hardy and Mr Lovell?

PN2522

MR LOVELL: Yes, I can, Commissioner.

PN2523

MR HARDY: Yes, thank you, yes.

PN2524

THE COMMISSIONER: Before we relaunch into matters, we have a hierarchy of fallbacks, I guess, in the sort of circumstance if the problem persists then first of all I'll go down to audio and see what occurs, and then we'll work out the rest if need be. All right. So if you proceed, Mr Lovell. You were just about to tell me about Mr Knauer's evidence, I think.

PN2525

MR LOVELL: Yes, thank you, Commissioner, and where I think we'd gotten to that is, Commissioner, as you would expect we accept the characterisation of the principles of construction from AMWU v Berry here, and we'd accept that what you're looking at is objective facts about the surrounding context, not subjective intent.

PN2526

What we would say is there are objective facts known to both parties. If I can direct you to the evidence of Mr Knauer, it starts from 579 of the court book if that's of assistance. Those objective facts are as follows. The circumstances of ab initio employee meant the basis of employment, the nature of the training course and its particular features.

PN2527

Those matters I think you can take it are well-known to the bargaining participants here, Airservices and Civil Air, the union that exists only to represent licensed air traffic controllers employed by Airservices. What we can take from Mr Knauer's evidence though goes further. In the course of bargaining Mr Knauer's evidence, and this was unchallenged, was that the parties have recognised that ab initio trainees are a fundamentally different class of employee to qualified air traffic controllers.

PN2528

That the parties didn't intend that ab initio trainees have access to the full range of entitlements applying to operational ATCs, and that schedule 1 was directed at clarifying the terms that did apply or would apply to ab initio trainees. We say they are important objective facts.

PN2529

They make it clear that the schedule was intended to have work to do and, as I have taken you to already in addressing the text of the agreement, we say the work that it has to do is clause 4, by operation of the exclusionary provision in clause 2, operates to exclude the performance aspects of clause 50. Mr Knauer hasn't given any evidence of particular conversations about that subject matter.

PN2530

Indeed, the evidence that he gives is that this aspect of the schedule was relatively uncontroversial and not subject to extensive discussions, but we say you're entitled to take into account the objective facts that the parties were setting out to do something here, to differentiate between the terms and conditions that apply to ab initio trainees and other employees in particular respects and that that's what they achieved in the drafting of the schedule. Commissioner, I wanted to take - - -

PN2531

THE COMMISSIONER: So do you say that - - -

PN2532

MR LOVELL: Sorry.

PN2533

THE COMMISSIONER: - - - clause 4 of schedule 1 operates in such a way that an ab initio once they've failed an essential component of their training, can be terminated with no procedural fairness?

PN2534

MR LOVELL: No, I don't, Commissioner. What I'm saying is something subtly different than that. I'm saying that the agreement doesn't create any obligation to provide procedural fairness in respect to that subject matter and, indeed, that's part of the surrounding context in which the parties have included the term. As you have before you, there is extensive evidence of this. There are registered training organisation processes that detail the procedure by which failure of an essential component of training will be dealt with. The parties were - - -

PN2535

THE COMMISSIONER: Can I just bring you back to my question? You correctly made the change. So the agreement permits the ab initio trainee, once they have failed an essential component of their training, to be terminated without procedural fairness?

PN2536

MR LOVELL: Yes, or I put it the other way, Commissioner. The agreement does not contain a requirement for procedural fairness in respect of a termination of an ab initio.

PN2537

THE COMMISSIONER: That's splitting hairs. That's splitting hairs.

PN2538

MR LOVELL: Okay so, Commissioner, but why I say that - - -

PN2539

THE COMMISSIONER: I've got millions more questions, so rather than hear your submissions can you hear my questions now, please?

PN2540

MR LOVELL: Of course.

PN2541

THE COMMISSIONER: So the agreement permits that termination without procedural fairness. At what point does that cease? Because surely it cannot be a circumstance in which the employee is simply graded as having failed and they're dismissed an hour later. Surely it cannot countenance that.

PN2542

MR LOVELL: Commissioner, what we'd say is the agreement doesn't contain provisions related to the process or terminating the training or employment of an ab initio trainee. We say one of the contextual factors that explains why that's the case is there are extensive processes and procedures that sit outside of the enterprise agreement that regulate precisely that subject matter.

PN2543

THE COMMISSIONER: Is it then a case that the agreement permitting the termination without the accessing of procedural fairness, that the entirety, every single word in clause 50 does not apply at all?

PN2544

MR LOVELL: In respect of performance? In respect of - - -

PN2545

THE COMMISSIONER: You've heard my question; can you limit it to that question?

PN2546

MR LOVELL: Yes, yes.

PN2547

THE COMMISSIONER: Right. All right, no, proceed. Well, no, actually I'm concerned about it. I don't think Mr Knauer's evidence is sufficient at the moment to say that the things he said are to the level of objective facts, that that was the intention of the parties. Can you take me through those things again, please?

PN2548

MR LOVELL: Yes, Commissioner. What we say here is we're concerned with objective facts that assist in ascertaining what that intention might be.

PN2549

THE COMMISSIONER: Sure and what were those objective facts that might ascertain - - -

PN2550

MR LOVELL: So those objective - - -

PN2551

THE COMMISSIONER: - - - in intending what that intention may be?

PN2552

MR LOVELL: Certainly. So I think that there's two classes of facts, Commissioner. The first is the circumstances and context of ab initio employment itself.

PN2553

THE COMMISSIONER: Yes.

PN2554

MR LOVELL: That's the basis.

PN2555

THE COMMISSIONER: You don't need to go over that again.

PN2556

MR LOVELL: Yes and then the second class is those discussions that occurred between the parties in respect of the inclusion of this schedule and we say they're premised on three things and Mr Knauer's evidence is to this effect. That there's a recognition by the parties that the ab initio trainees were a fundamentally different class of employee as to qualified air traffic controllers being most employees covered by the agreement.

PN2557

Secondly, that it wasn't intended that ab initio trainees have access to the full range of entitlements supplied, that second group, the operational ATCs. And that schedule 1 is included for the purpose of clarifying those terms that apply to ab initio trainees and those terms that don't.

PN2558

THE COMMISSIONER: Can you take me to Mr Knauer's evidence on each of those three things, please?

PN2559

MR LOVELL: Yes, Commissioner, I can. In respect of the first of those things, I take you to paragraph 13.

PN2560

THE COMMISSIONER: Of his statement?

PN2561

MR LOVELL: His first statement, sorry.

PN2562

THE COMMISSIONER: Thank you.

PN2563

MR LOVELL: That's available at 579 of the court book.

PN2564

THE COMMISSIONER: Thank you. You say, do you, that because that contention in paragraph 13 was not disturbed in cross-examination, it's something I should accept as an objective fact?

PN2565

MR LOVELL: I do, Commissioner. Now, Mr Hardy has put to you that we haven't called representatives of Civil Air to give their account. I accept that an account from Civil Air might be in the nature of corroborating evidence but we say Mr Knauer has made that statement, it is an objective fact as to the circumstances in which the relevant terms made their way into the agreement and unchallenged it should be accepted.

PN2566

THE COMMISSIONER: Thank you.

PN2567

MR LOVELL: In respect of the second subject matter which is the intention that ab initio trainees won't have access to the full range of benefits, I'd rely on 13 that I've just taken you to, and also 9 which gives context to the circumstances in which Airservices put this issue on the table. So the objective fact we say can be found in 13 but 9 is of relevance in that respect.

PN2568

THE COMMISSIONER: Thank you.

PN2569

MR LOVELL: In relation to schedule 1, clarifying the terms that apply to ab initios, we'd say both clauses 11 or paragraphs 11 and 13, rather, of his statement, again on the same basis we'd say establish objective facts relevant to your considerations.

PN2570

THE COMMISSIONER: So just on paragraph 11 is the schedule that is actually tabled to November 2015 and included within his bundle?

PN2571

MR LOVELL: It is, Commissioner. Give me one moment. I can give you the court book reference, Commissioner, if that assists.

PN2572

THE COMMISSIONER: That would help.

PN2573

MR LOVELL: It's 615.

PN2574

THE COMMISSIONER: Thank you.

PN2575

MR LOVELL: Thank you, Commissioner. I want to return to a few objections, if you like, that are put against us on this point. The first that the applicant has put is that clause 4 is concerned only with termination of employment and they seek to draw a distinction between termination of employment and termination of training.

PN2576

This ignores the fact that clause 4 is directed at termination of employment in particular circumstances for not satisfactorily completing an essential component of the training. The evidence in the trainee handbook, and it's at court book 825, I don't propose to take you to that, Commissioner, now but is that there's a single decision-maker that decides to terminate the training of the employment and the only reason the applicant's employment might be terminated here is that the applicant – or hasn't been terminated here, is that the applicant has first invoked the internal merits review process and then this dispute.

PN2577

IN respect of the second matter put by the applicant there's a suggestion, I think, that schedule 1 doesn't deal with each of the elements of the performance process in clause 50. I think the suggestion here is that the parties could have spelled out in schedule 1 those procedures that would apply to a decision to terminate employment of an ab initio employee for not satisfactorily completing an essential component of their training.

PN2578

We say, I think implicit in that submission there's actually some significant concessions. We'd say first, as I've already addressed you, there are extensive processes for managing a student's academic performance and that's reflected in the evidence before you. Those obligations are imposed on Airservices outside of the enterprise agreement.

PN2579

What I think the argument boils down to is if the drafters had intended to exclude clause 50 then they could have written what the alternative procedure would be expressly into clause 4 of schedule 1. We say there's another obvious explanation, the employer and the union understood those processes to exist and had those processes in mind when drafting clause 4.

PN2580

THE COMMISSIONER: Thank you.

PN2581

MR LOVELL: Then, finally, I wish to take you back to the terms of clause 3. I think again something is said to be made of the fact that clause 3 is in different terms and clause 3 is framed as expressly switching off one clause and switching on another. That misses the different nature of clauses 3 and 4. One is directed at two alternatives where readily one is switched off and the other is switched on. Clause 50 is, instead, directed at a subject matter and invokes the operation of clause 2.

PN2582

Could the drafters have framed this in some different way, Commissioner? Of course they could. There's always any sort of infinite range of possibilities as to how industrial parties might reflect their intent, but we say if you look at the text of the agreement the surrounding context and the fact that the drafters, as Mr Knauer presented, are and were of a practical bent of mind, that you shouldn't be diverted by what alternative forms the parties might have used but, instead, focus on the terms and the context itself.

PN2583

Commissioner, if you accept our submissions on this aspect then, as I said in opening, you must dismiss the dispute. Commissioner, I'll pause there in case you have any other questions on this construction point before I turn to the terms of clause 50.

PN2584

THE COMMISSIONER: No. Well, there's probably one I should raise with you which is in respect of the inferences that were sought, am I right in thinking – maybe this is for both of you to confirm it, am I right in thinking that the only one that pertains to the construction of the instrument is Peter Curran.

PN2585

MR LOVELL: That's correct, Commissioner.

PN2586

THE COMMISSIONER: Thank you.

PN2587

MR LOVELL: Commissioner, in that respect I addressed you earlier on our view as to the relevance of that evidence. We say there's nothing really to be gleaned from the 2020 bargaining process because the clause remains in the same terms as introduced in 2017.

PN2588

THE COMMISSIONER: Yes. Thank you. Yes, go on.

PN2589

MR LOVELL: I want to move then to the second aspect of my submissions and that is our submission that clause 50 by its terms does not apply to the circumstances of an ab initio trainee. Commissioner, I invite you to receive this second submission in two ways, or one of two ways. First, that it adds further weight to the view that schedule 1 was intended to operate to exclude clause 50 in respect of managing a trainee's academic performance and it's part of the context relevant to that construction and exercise.

PN2590

The second is more plainly to say that clause 50 in its terms isn't directed at the circumstances of an ab initio trainee, and we say that this becomes evident when we explore the applicant's various claims about how clause 50 is said to apply here, and the difficulties that arise in doing that.

PN2591

We say clause 50, insofar as it relates to performance, needs to be read in the context of the agreement as a whole. Commissioner, do you have a copy of the full enterprise agreement before you?

PN2592

THE COMMISSIONER: I have a copy of many of the versions, yes.

PN2593

MR LOVELL: Yes but the 2020 agreement would be most relevant, if that's convenient.

PN2594

THE COMMISSIONER: Yes.

PN2595

MR LOVELL: I'm conscious it's not in the court book.

PN2596

THE COMMISSIONER: No, no, I have that.

PN2597

MR LOVELL: If I can take you first to – and I won't be exhaustive in this process but I want to take you to the other parts of the agreement dealing with the subject matter of work performance. I'll start on page 43 and it's clause 26 that I wish to direct you to.

PN2598

THE COMMISSIONER: Thank you.

PN2599

MR LOVELL: Clause 26.8 first deals with the circumstances where an annual assessment is made of an employee's performance in accordance with clause 27 which follows. This applies 12 months after an employee's initial rating or achievement of qualification, and in that sense it has no application to an ab initio trainee.

PN2600

There's no other circumstances in which the performance provisions in clause 26 and 27 are said to apply expressly or otherwise to an ab initio trainee. Clause 26.2 makes clear one of the evident purposes of an annual assessment process and that is salary advancement under the classification structure contemplated by the agreement.

PN2601

Again, those provisions, starting from clause 26.2, are confined to performance-based salary progress through the operational ATC structure and have no application or effect in relation to ab initio employees. In summary, Commissioner, there's no annual performance assessment. An ab initio's advancement beyond the ab initio classification is not subject to satisfactory performance. It's instead subject to satisfactory completion of the training clause.

PN2602

That's the totality of the provisions outside of clause 50 that deal with performance under the agreement, so I want to turn back to clause 50 now which conveniently can be found at page 60 of the copy of the agreement in front of you. I do wish to take a little bit of time on this, Commissioner, to break down clause 50 into its component parts and test our submission that it has no application to somebody in the circumstances of an ab initio trainee.

PN2603

Clause 50.1 first is directed at assisting an employee who is underperforming to improve their performance to a satisfactory standard. A course of training, interestingly enough, is referenced as one means by which that could occur. Clause 50.2 and 50.3 require Airservices to afford the employee procedural fairness before taking any formal action to manage the underperformance and they necessarily establish a close nexus between the performance management process and evidential outcomes of that process.

PN2604

Indeed, the applicant's case and the relief that we understand him to be seeking, is premised on clause 50.2 and 50.3 essentially operating as preconditions on terminating an employee's employment on the ground of underperformance. As I've already noted and taken you to, Airservices has established a performance improvement procedure directed at giving effect to these obligations and ab initio employees are expressly excluded from that process.

PN2605

I want to contrast then for you, Commissioner, the process contemplated by clause 50 in the terms I've just described it, with the circumstances of an ab initio trainee who's not meeting the requirements of the ATC training course. By definition ab initio trainees are unqualified and inexperienced in the field. They're lay persons being paid to undertake a course of study where progressively they acquire theoretical knowledge and practical skills required to operate as an air traffic controller.

PN2606

They of course, by definition, have not yet demonstrated the required skills and knowledge to undertake field training or, indeed, ultimately attain an air traffic control licence, a rating or an associated endorsement. They're not employed to perform duties in an operational role or productive work in that sense. There are no performance standards that they're required to meet.

PN2607

Instead, there are minimum academic requirements in each unit of study that must be met in order to progress to the next phase of training. There are comprehensive procedures tailored to those circumstances, a handbook, RTO procedures and the like. We say that in its terms, if you like, clause 50 should be construed in a manner consistent with clauses of this nature generally. It's directed at essentially returning an underperforming employee to the requisite standard of performance.

PN2608

It is ill-fitting at best, if you like, when sought to be applied to an unqualified, inexperienced trainee undertaking a course of training to first acquire the skills that would later, if successful, underpin satisfactory performance in employment as an air traffic controller. We say it's fundamentally different.

PN2609

As I invited you at the start of this section of my submissions to do, Commissioner, we say that you can take those matters into account as part of the context of the agreement as a whole in construing the proper effect to be given to schedule 1 and separately from that we say you could independently come to a view that clause 50 has no application to an ab initio trainee on its own terms. I don't propose to put anything more on that subject matter and I rely otherwise on our written submissions in respect of that.

PN2610

THE COMMISSIONER: Thank you.

PN2611

MR LOVELL: Commissioner, I then wanted to turn to the proper construction of clause 50 and this submission proceeds of course on the alternative basis that contrary to Airservices' submissions you find that clause 50 had application to the applicant's circumstances. We say in those circumstances it is critical that very careful attention is paid to the structure and terms of clause 50 itself.

PN2612

In this part of the submissions, Commissioner, I'll draw your attention to the approach adopted by your fellow Commissioner, Commissioner Bissett, in applying clause 50 to an experienced ATC employee. Commissioner, we provided your chambers ahead of the last hearing with a copy of that decision. It was provided, if it assists, at 8.24 am on 6 April. I was hoping that you might be able to get a copy of Commissioner Bissett's decision in Civil Air v Air Services [2019] FWC 5369, before you.

PN2613

THE COMMISSIONER: Did you say 5639?

PN2614

MR LOVELL: It is, Commissioner.

PN2615

THE COMMISSIONER: Right.

PN2616

MR LOVELL: That has been provided to chambers so hopefully should be to hand.

PN2617

THE COMMISSIONER: It may well be but let me just look it up. Yes, go on.

PN2618

MR LOVELL: Thank you, Commissioner, and I just wanted to do that so as not to lose the flow. I'll take you back to that decision momentarily.

PN2619

THE COMMISSIONER: Right.

PN2620

MR LOVELL: So there's really two elements we say to clause 50 that need to be approached quite separately and they are self-contained provisions and hold quite different approaches. The first element is clause 50.1 which deals with the question of constructive assistance, and in the fourth part of my submissions I'll take you to why we say constructive assistance has been provided here.

PN2621

However, there's a threshold question that I need to address you on and that's the scope of the requirements in clause 50.1 itself. Clause 50.1 you'll see in its terms, Commissioner, relevantly provides that:

PN2622

The primary focus of managing an employee whose performance is unsatisfactory –

PN2623

and I emphasise –

PN2624

should be to constructively assist the employee to improve their performance to a satisfactory level –

PN2625

and again I'll emphasise –

PN2626

within a reasonable time.

PN2627

The applicant's claim ignores that clause 50.1 is not framed in mandatory language and is caveated by giving such feedback and assistance as is appropriate in the circumstances. Commissioner Bissett's approach to the construction of clause 50.1 in the case involving an individual employee brought on behalf of the union, is instructive here.

PN2628

The Commissioner relevantly found that clause 50.1 is a self-contained provision. That's at paragraph 41. And I think that's meant in the sense that it sets out an informal process for responding to performance concerns separate from a formal process to which the other provisions in clause 50 are directed.

PN2629

Commissioner Bissett, at paragraphs 46 and 47 of that decision, Commissioner, references the use of the word, 'should', and the phrase, 'assistance as is appropriate'. At paragraph 50 she goes on reject that clause 50.1 was required to be observed in all cases as a precondition to conducting a formal process under clause 50.3.

PN2630

At paragraph 53 she accepts that clause 50.1 doesn't mandate – it does not mandate that Airservices provide constructive assistance for each instance of underperformance. Then at paragraph 102 when the Commissioner comes to apply clause 50.1 to the particular and quite detailed facts of that case which I won't bore you with, in applying clause 50.1 the Commissioner found that while Airservices could have provided other assistance to the employee it had an objectively rational basis for determining that it provided the necessary support and assistance.

PN2631

We say, Commissioner, that the approach adopted by Commissioner Bissett is a coherent one. It's one that should be given weight and we say that on that analysis the obligation in clause 50.1 rises no higher than an obligation to Airservices to first consider what constructive assistance is appropriate in the particular circumstances and to provide such assistance that's deemed appropriate.

PN2632

I'll return to the application of that clause to the applicant's circumstances shortly but I did want to pause to then look at the remaining provisions of clause 50 and briefly address you on the scope and requirements of those provisions. Clause 50.3 evidently, Commissioner, is a separate clause providing for a formal process in certain circumstances where there are serious concerns about poor performance that could result in Airservices implementing action up to and including termination of employment.

PN2633

We'd accept that by using the term, 'procedural fairness', or the principles of procedural fairness in 50.3, it's apparent that clause 50.3 is importing the standards of procedural fairness outlined in clause 50.2 into that process of managing serious concerns about performance. We don't understand that to be controversial but we want to be disciplined, if you like, about what the nature of the obligations in clause 50.3 are.

PN2634

Having addressed you on the construction of that, Commissioner, I will in the final part of my submissions return closely to the terms of clause 50 in considering each issue. It's important, we're not always sure in each instance how an issue is framed as an alleged or potential breach of clause 50 and I'll address you as we go through on that.

PN2635

But before I turn to that, Commissioner, there are a few preliminary matters that I need to address you in respect of this part of my submissions. The first is the applicant's submission or invitation to you to draw adverse inferences against Airservices on the basis that it hasn't called, by my account, some 11 employees current and former, who the applicant says should have been called.

PN2636

Commissioner, our approach to the conduct of this matter and with a view to ensuring that it's conducted as efficiently as possible, has been to seek to adduce evidence from what I would term are the four decision-makers in respect of the applicant's training program and the decision taken to place him on training review and ultimately the outcome of that.

PN2637

We say we've sought to present a fair and reasonable account of the material facts in issue. In view of the efficient conduct of the proceedings, I note that with the four witnesses the respondent has called, almost two full days has been spent on cross-examination of those witnesses and if I was to extrapolate on that, what is invited here would invite a hearing of more than five days, maybe extending to seven.

PN2638

I'm not suggesting anything inappropriate in what Mr Hardy has put to you. I'm plainly making the point, though, that what we've sought to do here is provide a fair and reasonable account of what we say are the material facts in issue. Commissioner, you'll ultimately have to make a judgment about whether we've succeeded in that endeavour.

PN2639

We think you should be reluctant to draw adverse inferences about Airservices not calling a broad range of people who had some involvement in what is obviously a quite extended process. That's the preliminary matter I wished to address you on, Commissioner. I'll move now to why we say Airservices has, in substance, met the requirements of clause 50 here.

PN2640

I think what has emerged in the course of the applicant's case is that they advance four key aspects of clause 50 that are said not to have been complied with. The first is not providing constructive assistance before the first separation standard exam and then in the immediate aftermath.

PN2641

The second is not advising the applicant of serious concerns about his performance, the applicant says until 18 February 2021 and in that sense we understand that to be an argument that Airservices didn't promptly advise the applicant of its performance concerns. The third is making a decision to terminate the training and as a consequence the employment that was not proportional. The fourth is not otherwise adhering to the principles of procedural fairness in various processes and I'll deal with those all together.

PN2642

Commissioner, you've heard a range of evidence that is said to be relevant to these contentions. We think some caution needs to be exercise in respect of the evidence that you've received about some subject matters. In particular, we apprehend, if you like, that the evidence must be being sought to be adduced by the applicant on the basis that it is relevant to the assessment by the commission of Airservices' compliance with clause 50 but we take issue with the following categories of evidence being at all relevant to that question.

PN2643

The first category I point you to is the perceived deficiencies relating to the delivery or training or the quality of the instructors involved. We don't see how that can go to issues of compliance with clause 50. The applicant's own opinion of his performance and a comparative assessment of that performance against others, we don't see how that could be relevant.

PN2644

The applicant's evidence that he would have passed the final practical examination for phase 2 if he had the opportunity to do so, we say that simply doesn't arise because of the failure in respect of the theoretical examination. And Airservices' practices in relation to engaging some trainees to perform duties while on training review standby and the fact that the applicant wasn't assigned to such duties.

PN2645

We say that at least those matters have no or, if they are to be admitted, minimal probative value. I'll turn then to the first of the four subject matter where clause 50 is said to be invoked here and that's constructive assistance. First, Commissioner, constructive assistance before the first separation standards exam. We - - -

PN2646

THE ASSOCIATE: Parties, I'm sorry, I - - -

PN2647

MR LOVELL: Associate, I'll just pause there. I believe we've lost the Commissioner.

PN2648

THE ASSOCIATE: Parties, the Commission is now adjourned and, my apologies, I thought the Commissioner was just thinking very still but he was frozen for a while I think, so he's going to join us again shortly.

PN2649

MR LOVELL: Thank you.

SHORT ADJOURNMENT [3.12 PM]

RESUMED [3.26 PM]

PN2650

THE COMMISSIONER: I think that's unmuted. As I was saying, I'm apologetic to all concerned and hopefully this third try will resolve the issues. Mr Lovell, if you can hear me, if you'll proceed, please.

PN2651

MR LOVELL: Of course, Commissioner. I think just before the line dropped out, I'd addressed you on those aspects of the evidence that we say need not be admitted or if they are admitted they should be afforded only minimal probative value.

PN2652

I want to turn now, then, to the constructive assistance element of the applicant's case and there's to elements here. The assistance before the first separation standards exam and then the assistance after the failure of that first separation standards exam. In this respect if I paraphrase the applicant's case, the contention is that Airservices hadn't given him appropriate assistance following a period of several weeks' absence while he was isolating because of a suspected COVID case.

PN2653

A suggestion that he was overloaded, operating on a materially compressed timeframe which affected his ability to prepare. We'd say, commissioner, and I return to Commissioner Bissett's approach to clause 50.1 here, that any assistance rendered needs to be viewed in light of the assistance that's already been provided through previous training support agreements and other mechanisms.

PN2654

The assessment for you here is whether Airservices had an objectively rational basis for considering the assistance that was provided was appropriate in all the circumstances. So what assistance was provided? Airservices deferred the exam until 22 July 2020. That deferral placed Mr Crouch out of kilter with his class and it was accepted by Mr Crouch in cross-examination that that had occurred.

PN2655

Mr Crouch was provided with one-on-one follow-up activities in relation to all aspects of the training that were missed in person during his absence and notwithstanding that training and support, he failed with a score of 45.9 per cent.

PN2656

In respect of constructive assistance after the applicant failed the first separations standard exam, I think the contentions, to paraphrase, are that Airservices did not give him appropriate support after he failed the exam. That one of the instructors was rude, hostile and disinterested. That the applicant was left to review workbook answers alone and the process was rushed and cursory.

PN2657

I think another matter that was raised at least in writing was that the applicant wasn't given a genuine choice about the format of the exam, whether it would be taken in writing or verbally. A couple of points on this issue, Commissioner. First, there was no obligation to afford a supplementary exam under the ATC training manual at all. At court book 853, section 10.7 of the training manual makes it clear that such an exam is a matter of discretion.

PN2658

Secondly, the applicant was provided three further weeks to prepare for a supplementary examination and that's reflected in the training review report at court book 478. The applicant was provided with written feedback on the assessment paper. A trainee workbook, a consultation session with an instructor and all of those things were directed at clarifying any knowledge gaps that the applicant considered might exist.

PN2659

In respect of the mode of exam, the applicant was provided the option of undertaking the separation standards exam, the supplementary exam, as a verbal exam. The applicant makes various complaints about that process, that he wasn't afforded the opportunity to practice the verbal format and the like. All we'd say is that in a nutshell, constructive assistance has been provided here both before and after the first separation standards exam.

PN2660

I want to turn then, Commissioner, to the second area of concerns and that is the contention that the applicant wasn't advised of serious concerns about his performance at least until February of 2021. This requirement arises from clause 50.3 of the agreement and the existence of serious concerns gives rise to a requirement for Airservices to observe the principles of procedural fairness in clause 50.2 and advise the employee of those concerns in writing.

PN2661

The applicant's primary contention here is that he wasn't advised as required by clause 50.3 until after Airservices completed the first training review in February and recommended termination of his employment. The applicant actually goes so far in his opening submissions to say that that point is conceded by Airservices. I want to make it very clear that point is not. It's disputed.

PN2662

I want to outline now, Commissioner, for you, the various steps that Airservices took to put the applicant on notice of its performance concerns including through the implementation of training support agreements and in then placing the applicant on training review. Apologies for labouring this, Commissioner, but my chronology here actually starts with the commencement of the applicant's employment in November of 2019.

PN2663

The first examination that the applicant failed was the following month in December of 2019 and he was placed on the first training support agreement in that month, and that's at page 914 of the court book. The second failure in February 2020 resulted in a second training support agreement being implemented. Then the third failure, that of the separation standards exam, resulted in a third training support agreement in July of 2020.

PN2664

I'll take you to page 924 of the court book, Commissioner, which is the third training support agreement but in each respect I think you can take it that these agreements are in similar terms. Commissioner, once you have that in front of you, the document starts at court book 924. I'll take you to the top of page 927.

PN2665

THE COMMISSIONER: Thank you.

PN2666

MR LOVELL: You'll see at the top of page 927 section 3 of the training support agreement, it sets out the training program that will be implemented following the failure of the initial exam, in this case the third failure, the separation standards exam. And the table sets out very clearly the performance requirement, in the third column, that needs to be met to pass the supplementary exam, and in the fourth column the consequence of failing the supplementary exam, the outcome of which is that Mr Crouch would be placed on training review.

PN2667

You might recall, Commissioner, on the first day of hearing I put this process to Mr Crouch in cross-examination from PN 169, if it's relevant. Mr Crouch accepted the chronology that I've just put to you and, in particular, that he understood the consequence of failing the supplementary theory exam, and that can be found at PN 202 and 203.

PN2668

Once placed on training review, the process continued for Mr Crouch. This is of course, I'll remind you, Commissioner, my submission on the circumstances in which serious concerns about the performance were put to the applicant far earlier than February the following year, as is contended by the applicant. Following the failure on the separation standards supplementary exam, the applicant is placed on training review.

PN2669

He meets with Ms Schafer and Ms McCall to discuss the supplementary exam and the unsuccessful result, and explain the training review process, and that's accepted by the applicant in his statement at paragraph 59. There's then a meeting (indistinct) letter from Stewart Hunt advising of the preliminary finding of the training review in February the following year.

PN2670

It's at that point Mr Crouch says he was advised of serious concerns about his performance. We say that submission can't be seriously entertained against the background of the various engagements and communications with Mr Crouch consistent with the RTO processes as I've outlined them. Commissioner, I want to turn now to address you, though, on the point of delay.

PN2671

Airservices accepts that from the point of instituting the training review process in late August, early September of 2020, through to the delivery of the first training review in February of 2021, there was a significant delay. Airservices has offered an explanation in its evidence for those delays.

PN2672

They were associated with: staff shortages; the additional demands on training instructors who were undertaking training sessions morning and afternoon to accommodate density requirements; and the backlog of training reviews being undertaken. But we accept, nonetheless, that that was a significant and material delay and Ms Crisara properly accepted that on cross-examination.

PN2673

That delay, Commissioner, and there's no two ways about it, is very unfortunate but we say it does not amount to a failure to provide procedural fairness here. If it did, any delay of that kind would be fatal to a process for properly managing a trainee's failure to meet the academic requirements of the course.

PN2674

What we say is of most relevance here and where the focus should be, is what happens from there in February of 2021 following the first training review. It's here, Commissioner, I'll move to address the applicant's next contention which is that he hasn't been provided appropriate support and an opportunity to respond to the performance concerns that are raised through the training review process and its predecessors.

PN2675

The applicant makes various claims about the lack of opportunity to respond to the performance concerns, however, the evidence clearly establishes that the applicant made extensive submissions following the first training review in March 2021. Those submissions, I think Mr Hardy recalled this morning, they're more than 20 pages in length, start at court book 354 through to 378.

PN2676

On receipt of those extensive submissions Steven Clarke, the operational training head, the relevant decision-maker, identified a fairly obvious issue with the scope of the first training review and that is that the first training review hadn't incorporated Mr Crouch's performance on progress evaluation 6 that had been undertaken several days after failing the separation standards exam.

PN2677

Mr Clarke took the view that that needed to be addressed and asked that a second training review be undertaken incorporating progress evaluation 6 and that was communicated to Mr Crouch. There's an email at court book 379 to that effect.

PN2678

Commissioner, I wish to pause here because considerable time in this proceeding has been spent on what the second training review represented and Mr Clarke's and Mr Bosnich's evidence about those matters. The applicant's representative goes so far to say that inconsistent evidence has been adduced about those matters.

PN2679

To put it very plainly, Commissioner, I think there's a significant risk here of the Commission being led into error on the material facts, so I wish to take the opportunity to spell out our account of this process. It is evident from the first training review that was undertaken that it did not incorporate the results on progress evaluation 6 and that Mr Clarke properly formed the view that it should do so.

PN2680

He ordered a new training review to be undertaken by separate personnel who hadn't been involved in undertaking the first training review. A training review under the relevant procedures here, Commissioner, is a quite prescribed process. It's a set of considerations reliant largely on primary material and results from the training course.

PN2681

It sounds in the preparation of a document using a template training review report format, which you'll recall a copy of which was provided to the Commission following the second day of hearing. It's unsurprising, we say, in the least that the second training review being undertaken consistent with the process and within those prescribed set of considerations follows the initial training review very closely with updates to address the omission of progress evaluation 6.

PN2682

Commissioner, here's the key point I wish to make. It was not understood and we say their evidence speaks to this, by either Mr Clarke or Mr Bosnich, that the second training review would be a review for consideration of all of the points raised in Mr Crouch's submission following the first training review. There's no representation to Mr Crouch to that effect. In fact, as Mr Hardy took Mr Bosnich to, the representations are the opposite. In this respect, Commissioner, I want to take you to court book 825.

PN2683

THE COMMISSIONER: Just before you do that, I'm just checking something through on my part. Just one moment.

PN2684

MR LOVELL: Of course.

PN2685

THE COMMISSIONER: Did you just say that there was – no, what were your submissions about the motivation of the second training review?

PN2686

MR LOVELL: Yes, Commissioner. So the motivation or what Mr Clarke asked to be done is for the first training review to be revisited in a second training review and for it to address the omission of progress evaluation 6 from the first training review. That was an issue raised by Mr Crouch in his submissions of March 2021. Mr Clarke's evidence is that it was an obvious issue and that it needed to be addressed, and that's the basis on which the second training review was undertaken.

PN2687

THE COMMISSIONER: Thank you. I've got that now.

PN2688

MR LOVELL: In that respect, Commissioner, it is not a review or an appeal, if you like, of all of the matters that Mr Crouch raises in his submissions on the first training review. I will come back to how those issues were addressed momentarily.

PN2689

THE COMMISSIONER: That's an important issue and the problems with Mr Clarke's evidence in that respect is that he doesn't, so far as I can see, adequately address what he did with those submissions.

PN2690

MR LOVELL: Commissioner, I'll come back to that because I – and I do wish to address you on that point separately. May I just linger on the scope of the second training review for one moment longer.

PN2691

THE COMMISSIONER: Yes.

PN2692

MR LOVELL: Court book 825 is appendix Q to the ATC training handbook. This is the process. It's perhaps bluntly called a failure management system but put that to one side. It deals in dot point format by the process, the sequence of events if you like, that are to occur where a trainee is unsuccessful in an examination and then unsuccessful in a supplementary examination as is the case with Mr Crouch here.

PN2693

It contemplates at dot point three, the first dot point, that a training review will be completed and then they'll meet to discuss training performance and determine a recommendation and there's various outcomes that can arise from that training review process. Here we're concerned with the sixth dot point, the recommendation being for termination of training and employment.

PN2694

In those circumstances the trainee is informed of the finding in a meeting and the operational training head, Mr Clarke here, is informed of the decision. He goes on to deal with the process by which the trainee may request a review of the decision, recognising that the training review simply sounds in a recommendation that then needs to be acted upon by the operational training head. So a review in this sense is an opportunity to put submissions to the operational training head before any decision to terminate training is taken.

PN2695

The process follows on from there. Apply that to the facts here. We get through that process to the point of conclusion of a first training review. There is a recommendation for termination of employment. Mr Crouch makes extensive submissions following the first training review. Those submissions include and identify deficiencies, simply not taking into account progress evaluation six.

PN2696

Mr Clarke's remedy for that at that point in time is to seek the second training review and have that particular deficiency addressed. Indeed, after the second training review that's precisely, sort of, the process then continues on. In April of 2021 Mr Crouch makes a further submission in respect of the outcome of the second training review.

PN2697

THE COMMISSIONER: You implied there though that, am I right in thinking that you implied the submissions that Mr Crouch made were within Mr Clarke's mind when he initiated the second review?

PN2698

MR LOVELL: Yes. So Mr Clarke's evidence is he reviewed the issues that Mr Crouch - - -

PN2699

THE COMMISSIONER: But the evidence doesn't say that. My recollection of Mr Clarke's evidence, and if I'm wrong I'd like you to take me to it, my recollection is that he didn't look at them and Mr Bosnich didn't look at them.

PN2700

MR LOVELL: I don't think that's correct, Commissioner, so I can take you to the relevant part of Mr Clarke's statement.

PN2701

THE COMMISSIONER: Sure. Well, I'm less interested in his statement; I'm more interested in his oral evidence.

PN2702

MR LOVELL: Commissioner, I might best address this in a slightly different way then. I think what we need to look at is what Mr Crouch – sorry, what Mr Clarke, rather, did following the second training review because this is the opportunity that Mr Crouch, we say, has to make submissions in relation to the concerns he raised and you can make an assessment then of what Mr Clarke does in connection with those concerns.

PN2703

In April of 2021, and this is reflected at court book 381, Mr Crouch makes a further submission and that further submission in April 2021 is significant for several reasons I put. The first is that it incorporates the concerns raised in the first submissions and asks for those concerns to be considered as part of Mr Clarke's review of the recommendation arising from the second training review. I want to take you to court book 385, Commissioner.

PN2704

THE COMMISSIONER: Sure.

PN2705

MR LOVELL: This is a copy of Mr Clarke's decision. That is the communicated outcome of his review of the second training review. Mr Clarke says that he considered both sets of submissions received from Mr Crouch, both the extensive set of the 20 pages or so following the first training review, and then the supplementary submissions of April 2021 in which Mr Crouch incorporated those earlier concerns and raised some further issues.

PN2706

THE COMMISSIONER: Did he deal with that subject in his oral evidence?

PN2707

MR LOVELL: Sorry, Commissioner?

PN2708

THE COMMISSIONER: Did he deal with that subject in this oral evidence?

PN2709

MR LOVELL: Not that I recall. I don't recall any questions being put by Mr Hardy to Mr Clarke in respect of his decision-making process.

PN2710

MR HARDY: Commissioner, I might assist you with that. I addressed that in my closing submissions. Paragraph 128 onwards and, in particular, I did cross-examine quite extensively Mr Clarke and what you see at 132 of my closing submissions is that he made his decision entirely on the papers with the references included. He did not speak with any members of staff other than Ms Schafer.

PN2711

THE COMMISSIONER: In fairness though to Mr Lovell, that supports what he's putting to me which is he made his decision entirely on the papers but the papers included the submissions.

PN2712

MR HARDY: Yes.

PN2713

MR LOVELL: That's right and of course also engagement with Mr Crouch about the matters he raised in his submissions. The applicant has sought to describe this as a sham process that Mr Clarke didn't engage with the points raised by Mr Crouch and he criticises Mr Bosnich also for not doing that.

PN2714

As I hope is evident from my submissions just now, Commissioner, Mr Bosnich's role was confined in the terms that he put it to you. I think that is relevant to clarify when it comes to a question of credit and what weight should be given to Mr Bosnich's evidence. We say there's no inconsistency in respect of his role there. At 385 and 386 is the decision Mr Clarke has set out in plain and concise terms.

PN2715

The considerations that he took into account is evident from that document that he gave consideration to both sets of submissions and has addressed the various issues raised. We say that in substance the applicant has had an opportunity to put his concerns in writing and have them properly considered by a senior and experienced decision-maker before any decision was made.

PN2716

THE COMMISSIONER: You say they were properly considered, do you?

PN2717

MR LOVELL: We do.

PN2718

THE COMMISSIONER: The recollection that I do have of both men's evidences, and I'm looking for you to contradict me on this, is that they don't seem to have engaged with the submissions. They might have read it but I'm not – and Mr Bosnich's evidence I thought was weaker than Mr Clarke's. Am I wrong in that respect?

PN2719

MR LOVELL: Commissioner, you're not wrong in respect of Mr Bosnich. The reason Mr Bosnich couldn't assist you with the question of the extent to which he'd engaged with Mr Crouch's submissions is that that wasn't his role. His role was to undertake the second training review. Mr Bosnich, in fact, gave evidence that he didn't have access to the March submissions that Mr Crouch had made, so we say no sort of adverse view should be taken in respect of Mr Bosnich.

PN2720

Ultimately, Commissioner, what we invite you to do here is make an assessment of Mr Clarke's decision-making process. We've put before you the process that he undertook here, the material that he took into account and I probably can't put it higher than that.

PN2721

THE COMMISSIONER: Thank you.

PN2722

MR LOVELL: I wanted to turn now, then, to the broader category of the applicant's concerns of failures to afford procedural fairness more generally through the process. I think that this submission, again if I'm paraphrasing, can be characterised though fairly in this way, there's a concern from the applicant that the termination of training wasn't proportional to the performance, that Airservices failed to genuinely consider matters put to the applicant and that its decision-makers were affected by some form of conflict of interest or bias.

PN2723

We'd say in respect of those matters, I've already addressed you on the genuine consideration given to the matters raised by the applicant, so I want to address you, though on these two remaining concerns: proportionality of termination; and conflict or bias. I want to start on the question of conflict and bias on this proposition.

PN2724

The first is that what's asserted here is a perceived conflict of interest affecting Mr Clarke and affecting other personnel that are involved in the review process. The claims here, Commissioner, are not about one decision-maker being affected by particular bias but about seemingly everyone involved in the process.

PN2725

The various instructors involved in the delivery of the training, the six ATC instructors involved in the two separate – sorry, five ATC instructors involved in the two separate training reviews, each being a person not involved in the delivery of the training. The operational training head Mr Clarke, and then the three members of the academic appeals panel including two officers from outside of the learning academy from line operations.

PN2726

I guess I'd invite the Commission to look objectively at the facts that were before each of those individuals in considering the matters before them including the concerns raised by the applicant. To not put too finer point on it the applicant had failed three theoretical units, phase 1 and phase 2. He passed two of those units on a supplementary exam.

PN2727

He failed both the primary and a supplementary exam on separation standards. We've heard evidence that that's a core unit, fundamentally about the separation of air traffic. The applicant seeks to diminish the importance of the units he failed in the various material he put before the decision-makers and, indeed, he has put before the Commission.

PN2728

He had middle of the pack results on his practical examinations and in those circumstances we'd say that the decision consistently reached by each of these people with extensive air traffic control experience is consistent with the facts that were before them. So rather than demonstrating bias or conflict or that people had it in for the applicant, what we see here is a consistency in decision-making and the outcomes that are ultimately reached.

PN2729

I want to then turn to the question of the termination of training not being proportional to the performance which I understand is really the final category advanced by the applicant here. Commissioner, may I make one preliminary point on this. This entire contention, to be frank, is at odds with the arguments that the applicant has advanced in relation to the interaction between clause 50 and schedule 1.

PN2730

The applicant submitted, I think accepted that the processes of termination of training and employment are closely intertwined. I think it was said this morning one follows the other. Even on a narrow view of the effect of schedule 1, how can a question about whether the termination of the applicant's employment is proportional be anything other than concern with the exercise of Airservices' right under clause 4 of schedule 1?

PN2731

Commissioner, even if you're not with me on clause 4 and clause 2 operating to exclude clause 50 altogether, we'd say at a minimum it must exclude considerations as to whether termination of a training agreement and the associated employment is proportional. In that respect, Commissioner, we'd rely on our written submissions in relation to the assessment of proportionality on its merits.

PN2732

I wanted to turn then to one final aspect of the applicant's submissions and that's the concerns raised in relation to the academic appeals panel process and then the external review process that the procedures contemplated to follow it. We've seen no explanation either in oral or written submissions, as far as I can see at least, as to how the concerns in relation to the academic appeals panel process are said to breach clause 50.3.

PN2733

Indeed, we'd say raising the spectre of the academic appeals panel takes us back to why clause 50 is an ill-fit with the RTO processes that apply to ab initio trainees in managing concerns about not satisfactorily completing training. If we applied clause 50 in a more conventional circumstance to an experienced employee who is underperforming there's a clear informal and formal process set out within clause 50.

PN2734

There's nothing in clause 50 that contemplates the existence of various merits review and appeal processes. We say first that this underscores our view that was contemplated by the terms of the agreement was that separate processes outside of the enterprise agreement were viewed as those processes by which procedural fairness would be afforded.

PN2735

We say secondly about this, simply clause 50 on its terms has no work to do when it comes to the conduct of the academic appeals process or any further process in the RTO handbook that flows from that. Finally, Commissioner, I wanted to address you on the question of this external review and then the mediation process that ensued.

PN2736

Commissioner, I think you put it properly this morning. You've indicated there are some real difficulties in making an assessment of that aspect of the matter and, in particular, the mediation aspect in circumstances where it was conducted on a without prejudice basis. The point I'd make here is that it may not be necessary for you to consider those aspects at all because, again, we've seen no explanation of how the issues associated with that process are said to breach clause 50.3 in particular, and I rely on the submissions I've just made in relation to the academic appeals panel in respect of that further aspect of the process as well.

PN2737

THE COMMISSIONER: Isn't ultimately the issue, the procedural fairness issue in that respect, is that it was held out to Mr Crouch that there was an independent arbiter which he tried to access and then was told, 'We don't do that anymore'?

PN2738

MR LOVELL: I'd accept that, Commissioner. That's a question of the application of the RTO processes. We say that shouldn't be brought within the remit of the agreement and reframed as a question about the application of clause 50.

PN2739

THE COMMISSIONER: All right.

PN2740

MR LOVELL: Commissioner, I wanted to finally address you, then, on the relief sought by the applicant in this proceeding. My submissions here are on the premise, if you like, that the matter hasn't been dismissed on either of the first two bases I put to you in submissions and that there's a finding of inconsistency with clause 50.2 or 50.3.

PN2741

The applicant has said in their written submissions and again this morning, that they seek relief in the form of a declaration of non-compliance with clause 50. Commissioner, as you'd well appreciate, there's no capacity or power in the Commission to issue declaratory relief in the form that a court could.

PN2742

The applicant also seeks an order or direction that Airservices re-course the applicant or provide the applicant with some other specified form of remedial training. I think as has been accepted by the applicant, an order of that kind would necessarily involve the applicant recommencing the training course from the beginning.

PN2743

We'd respectfully submit, Commissioner, that the Commission's function here is to determine the correct interpretation and application of the agreement to the applicant's circumstances. We accept that if the Commission finds that clause 50 does apply and that Airservices has not complied with an aspect of clause 50, there will be consequences for how Airservices manages Mr Crouch's training and employment from here.

PN2744

However, the applicant is inviting you to do something quite different. They invite you to stand in the shoes of the employer, exercise the discretion vested in Airservices in clause 50.3 of the ATCEA to decide the appropriate action for Airservices to take to manage the issues of academic performance here. We say, respectfully, that would go well beyond the Commission's remit here.

PN2745

If, Commissioner, you don't accept that provision, the final point I'd make in that respect is to the extent that the Commission might propose to assume that task, it would be doing so in circumstances where it would then be making judgments about a process here in substitute for experienced, qualified air traffic control instructors who, themselves, are qualified ATCs who are experienced and can sensibly be relied upon to come to views about the appropriate outcome of a training review.

PN2746

We'd say serious caution should be exercised in approaching that task if, indeed, it's approached. To be clear, our submission is that ought not be the role of the Commission but if the Commission was to assume that role then it would need to exercise caution in standing in the shoes of the employer in that sense.

PN2747

THE COMMISSIONER: I hear you. I'm someone who is cautious from the moment I get up in the morning to the moment I close my eyes at night, so I - - -

PN2748

MR LOVELL: It's the best way to be, Commissioner. It's the best way to be.

PN2749

THE COMMISSIONER: So what do I do? If I find that clause 50 applies and I find that procedural fairness has not been given, what do I do?

PN2750

MR LOVELL: Commissioner, we say the appropriate course would be for you to identify in your decision those aspects of clause 50.2 or, sorry, I made an assumption there – those aspects of clause 50 that hasn't been applied correctly and then it would be a matter for Airservices as to how it manages the consequences of Mr Crouch's training and employment from there. Of course it would need to do so consistent with the terms of the agreement as interpreted.

PN2751

THE COMMISSIONER: I'm a bit underwhelmed by that submission. The way that – I mean, look, I accept that there is a construction to be had in respect of schedule 1. I accept then that if I'm against you in respect of schedule 1, I then have to turn to the other matters including the evidence. There's two possibilities, I guess, one of which is there's nothing to see here, that there's been procedural fairness which has been afforded to Mr Crouch; and the alternative, it hasn't.

PN2752

If it hasn't, then it hasn't been afforded because of failures in the understandings of the managers, in the steps taken by the managers, in the things they didn't do. Are you suggesting that I then say to the same people that you better go and do it again?

PN2753

MR LOVELL: Commissioner, in a nutshell, yes. We say that that is the appropriate course, that this is a question of the employer applying a process stipulated by the agreement but ultimately making a discretionary decision, we'd I guess suggest caution in the Commission stepping into the shoes of the employer and exercising that discretion itself, which is what would be required to grant the orders sought by the applicant.

PN2754

THE COMMISSIONER: I've expressed caution in stepping into the shoes of the employer and giving them what you advocate to me now because I would be very concerned that that would lead to further disputes and not a determination of the dispute.

PN2755

MR LOVELL: That may be, Commissioner. That may be.

PN2756

THE COMMISSIONER: I'm making you alive to that possibility. If you wish to file a comprehensive draft order, then you should do so within the next seven days.

PN2757

MR LOVELL: Certainly, Commissioner.

PN2758

THE COMMISSIONER: Is that all you wish to say at this time?

PN2759

MR LOVELL: It is.

PN2760

THE COMMISSIONER: Just one moment. I'm conscious that I don't think I've marked all of your submissions, so if I can do that now. The respondent's outline of submissions will be marked as exhibit R6.

EXHIBIT #R6 RESPONDENT'S OUTLINE OF SUBMISSIONS

PN2761

The submissions on representation will be marked as exhibit R7.

EXHIBIT #R7 RESPONDENT'S SUBMISSIONS ON REPRESENTATION

PN2762

The updated attachment AC01 will be marked as exhibit R8.

EXHIBIT #R8 UPDATED ATTACHMENT AC01

PN2763

The position description for the ATC training lead as occupied by Mr Bosnich, will be marked as exhibit R9.

EXHIBIT #R9 POSITION DESCRIPTION FOR ATC TRAINING LEAD

PN2764

Then the training review template will be marked as exhibit R10.

EXHIBIT #R10 TRAINING REVIEW TEMPLATE

PN2765

I think that completes all of the respondent's material.

PN2766

MR LOVELL: It does, Commissioner.

PN2767

THE COMMISSIONER: Thank you. I'll turn to you, Mr Hardy, if there's any submissions in reply.

PN2768

MR HARDY: Thank you, Commissioner. I'll respond in the same four categories as my friend addressed you on. In relation to the enterprise agreement and the evidence from Mr Knauer and the question of the construction of the schedule, the evidence that you have before you from Mr Knauer relates to 2017.

PN2769

I think Mr Knauer was described by my friend in submissions as being a lead negotiator but his evidence goes no higher than paragraph 7 of his statement which just says he was involved in enterprise bargaining in 2017. He was no lead negotiator. There is no such evidence.

PN2770

There is no evidence from the other participants like the union, and if this matter is – if the parties are of such one mind about the application of the schedule to clause 50, one would have thought Airservices would have led evidence not only from the person who was signed off on this agreement on behalf of Airservices in 2020 but certainly the other parties to the negotiations and bargaining, to provide you with what the decision in AMWU v Berry requires.

PN2771

Not the subjective understandings and intentions of Mr Knauer or Airservices. For example, in Mr Knauer's material that you asked Mr Lovell to take you to, in relation to, firstly, the statement in paragraph 9 he says:

PN2772

Airservices did not intend ab initio trainees to have access to the full range.

PN2773

That's Mr Knauer's understanding of Airservices' intention. Our submission is that the only evidence that you have from Mr Knauer is evidence that sets out his hopes and intentions. There is no evidence from any union representative either in 2017, if that's found to be the appropriate evidence to led, or in negotiation for the current agreement in 2020.

PN2774

All we have is a subjective intention of Mr Knauer, not corroborated by any other person and we understood there to be a number of people involved in bargaining. Not corroborated by anybody else and certainly not by the person who signed off on this agreement on behalf of the employer. In our respectful submission, the Commission can't determine the common intention of the parties by what Airservices has sought to lead in respect of this issue.

PN2775

It only has subjective hopes and intentions of Mr Knauer and if Airservices' evidence and submissions were to be accepted, having regard to the Full Bench decision, it would lead the Commission into error. Airservices has placed us in a position through this evidence to look at the proper and express language of those various provisions.

PN2776

We've done so and we've made some submissions as to how we say that they are to be read and I don't intend to reiterate those but merely refer that I would restate them. We also don't know, because nobody was called to give evidence around the negotiation of the 2020 enterprise agreement, as to what discussions were had about that schedule, what the union understood, what other employees understood.

PN2777

We're just told because it's there in its exact term one must accept discussions and emails and material that occurred prior to and in relation to an earlier agreement negotiated between 2015 and 2017. We have totally, we have a different workforce in 2020. We have a different enterprise agreement and this Commission, in our submission, would have been assisted, as would the applicant, with a proper understanding about what was said, what was negotiated, what the view of the union is in relation to this provision and its interpretation which is now led by Mr Knauer and submitted by Mr Lovell and, indeed, whether they form and arrive at a similar view.

PN2778

One would be very interested to find the union's view about excluding matters like procedural fairness and proper performance management for those most vulnerable. These trainees are not trainees in the sense of people – they are employees. They are not individuals who turn up to work as volunteers or getting some free work experience. These are employees, they're expressed as such, the agreement covers them as such. Clause 50 talks about employees.

PN2779

There's no carve-out as Mr Lovell would try and have the Commission interpret and read into the clause. There's certainly nothing to suggest that the only time that that's triggered is when you have your annual performance review. It is expressed in no such terms. There is no evidence before you, Commissioner, to support that submission.

PN2780

Nobody has turned up to say the only time this is triggered is when you have your annual salary review and annual performance review and then you will be, if you're underperforming, subject to clause 50. It is in its terms far more broader than that. It was expressed that the evidence that had been adduced was adduced by a manager directly involved in bargaining for the current agreement and I think even in his statement of page 578 it says:

PN2781

Involvement in bargaining for current enterprise agreement.

PN2782

Lest there be any confusion on that point, the evidence that follows and the statement of Marcus Knauer is nothing to do with the involvement in bargaining for the current enterprise agreement. It is all about the evidence involved in bargaining for the prior 2017 enterprise agreement and he admitted in cross-examination that there was an error in that heading.

PN2783

In relation to the matters of the termination of employment and when that arises, my friend seeks to submit that that clause is triggered in circumstances or, sorry, I withdraw that. My friend says that schedule 1 applies in respect of termination of employment described as an ab initio failing to satisfactorily complete an essential component of the training.

PN2784

What we don't have is any evidence about what that wording means, what is satisfactorily completing an essential component. There are many instances in the material before you where people like Mr Crouch have failed exams, done supplementary exams, passed those exams, failed those exams, been put on review.

PN2785

We submit that this provision in clause 4 relating to termination of employment, we don't get anywhere to that. The issues are not conflated. I think it was described towards the end of Mr Lovell's submissions that there was some suggestion that I might have said that the processes are closely aligned or something to that effect. To the contrary. We say they are so distinct and I cross-examined a number of witnesses who agreed with me on that.

PN2786

These are distinct processes of performance management and a separate process of termination of employment. That is the own evidence of Airservices' witnesses that was adduced under cross-examination. Just give me one moment, if you would, Commissioner. Yes, in relation to the second issue, Commissioner – and, sorry, to round that out, I maintain the submissions that we put that in schedule 1 in its terms does not operate so as to make clause 50 of the enterprise agreement redundant or not applicable, or to apply to the exclusion of Mr Crouch. To the contrary, it applies.

PN2787

The wording in the second issue raised by Mr Lovell about clause 50 in its terms is not directed to ab initio employees. We reiterate our earlier submissions, it relates to employees. It's not in its terms defined to be carved out to any subset or subgroup or to be read as part of a performance or annual salary review or only for senior people.

PN2788

We again say that if that's a badly drafted clause, it should be construed against an employer. It certainly doesn't contain, on the face of it, the matters Mr Lovell seeks to read into it and we certainly do not have the common intention of the parties before the Commission in this proceeding by virtue of the evidence that Airservices has sought to lead to enable you to make and draw the conclusions that Mr Lovell has asked you to draw on.

PN2789

In relation to the third issue, in terms of the level of constructive assistance that is required, on any view we say that the complaints that have been made by Mr Crouch about the conduct and about the lack of support and the lack of assistance that was provided by Mr Watson and Mr Boyd, cannot in any view amount to a form of constructive assistance even when considering it in the way in which Commissioner Bissett holds it ought to be considered.

PN2790

There was simply no form of constructive assistance. They were dismissive to Mr Crouch. Mr Crouch has made no secret of that from the very first occasion that he has raised a complaint about the way in which his training review has proceeded. Airservices, if one wants to reduce my list, at least in relation to these two key employees involved in the actual support and training of Mr Crouch, ought to have put their evidence before you so that you could understand directly from those two individuals what they say in relation to Mr Crouch's position.

PN2791

We know on the evidence that Mr Bosnich didn't bother to check with Mr Watson about what Mr Crouch was complaining about. We know that Mr Clarke failed to do so. It was an on the papers review. No interrogation in circumstances where the consequences for Mr Crouch are incredibly severe. They on the papers review, no interrogation and no witness evidence and no ability to cross-examine at least Mr Watson and Mr Boyd about their dealings and lack of support for you to even be in a position to make any other finding than there was no constructive assistance on any view provided to Mr Crouch.

PN2792

The best that is put is that you have a, and I think you were taken to it by Mr Lovell, and I think it was the third training review document. If we go to the third training review document which we understand is a document that of course individuals in Mr Crouch's position sign in an incredibly imbalanced position of power, one reads on page 927 that the training program would have three bullet points to it.

PN2793

Completing reviews of initial assessment answers, completing a workbook and scheduling a session with instructors to complete a review. Mr Crouch has given very clear evidence about the fundamental dismissive, hostile, unsupportive attitude of those that were supposed to, and you are now being asked to find, have discharged their obligations under this training support agreement.

PN2794

In considering it and in light of the serious consequences for Mr Crouch, Mr Bosnich doesn't bother to find out. He just says, well, on the papers this must have happened. Mr Clarke, expressed as a senior employee of this organisation, doesn't bother to ask a question about it. Just the fact of, the words are written there, it must have happened.

PN2795

Mr Crouch has given consistent evidence, he's been here to be cross-examined on it. He wasn't. He wasn't challenged on his account of the failures, deliberately so, because we say that Airservices is acutely aware that it has not provided any form of appropriate support for Mr Crouch. Had they, we would have heard from Mr Watson. We would have heard from Mr Boyd. I would have been able to examine them on their involvement in their so-called form of constructive assistance that is said to have been provided adequately.

PN2796

It's an astonishing submission. The submission that that would have blown a hearing out from two days to five or seven, Commissioner, if you read the transcript as I have done in the preparation for today, the frustrations that there were in getting witnesses to answer questions that were asked of them, the changing of the evidence. At one point it was put to a witness that this had become an excruciating process.

PN2797

I don't know if the other witnesses that ought to have been called, if the process would have been extended by virtue of there being additional people, if it would have been by five or seven days. Pure speculation by Mr Lovell and, with respect, no answer to the fact that Airservices deliberately chose to leave key decision-makers and key participants out from this hearing.

PN2798

The key point is that not only the persons who are involved in the training of Mr Crouch but then those who review on the very first occasion incorrectly, on incorrect evidence, and the reviews of three individuals, not one of them turns up to explain what they did.

PN2799

What is represented to Mr Crouch and what Mr Clarke's evidence is, which is contrary to my friend's submission, is that what Mr Bosnich would do would be to perform a new review. I've referenced in my submissions the relevant paragraph of the transcript and of Mr Clarke's evidence where he explained that what he wanted Mr Bosnich to do was to undertake a new review. Mr Bosnich, in his letter on page 474 of the court book talks about:

PN2800

I am writing to you to advise findings of review 2. I have reassessed the elements of your training within the training and provided recommendations accordingly. The following documents and discussions were utilised.

PN2801

This is not as Mr Lovell has submitted, to just deal with (indistinct). He's making very, very clear representations to Mr Crouch that he should be satisfied that there has been training review number two undertaken which has assessed, although there's no evidence of that assessment, the elements of the training within the initial training and provided recommendations accordingly.

PN2802

You have before you, Commissioner, the document will speak for itself, the compare document between the first review and the review that Mr Bosnich authored under his pen, and this letter which is then intended to convey – they then outline five or six bullet points which they say they looked at.

PN2803

Training support agreements; progress evaluation reports; weekly training tracking reports; daily feedback forms; training progress reports. Entirely inconsistent with what Mr Bosnich in oral cross-examination gave evidence about to the Commission. He references:

PN2804

If you wish to add any further information to your appeal letter dated 3 March.

PN2805

The letter that Mr Crouch under extreme pressure, over five to then nine days, had to pull together and did a remarkable job in doing so, after six months of waiting, Mr Bosnich refers to it. Yet here we are to say, well, on the one hand we see that in his letter but what he otherwise is yet to talk to the Commission about is, 'Well, I didn't really know, I didn't see the letter', but he refers to the letter.

PN2806

How these submissions are firstly made and, secondly, can be maintained with respect is extraordinary, Commissioner. This whole process from beginning to end for Mr Crouch was a set-up, it was a sham. They had a determined view that they were going to dismiss him at the point that he returned from his COVID leave and over 1.3 per cent, notwithstanding all other factors, missed the mark without any help or support.

PN2807

The other issue is that where one talks about independence in the independent review, that was then concluded by another of Mr Clarke's representatives, it's representatives being the independent review, one would think that is a very important person for you to hear about and to understand what he took into account and didn't take into account, and what did he interrogate to ensure that Mr Crouch had a fair go and a fair process in accordance with the obligations that we say sit in clause 50 of the enterprise agreement.

PN2808

Again, not here to give evidence, not here to be examined. One can only assume from that, and adverse inference is drawn, that whatever he said would not have been helpful to Airservices. The next matter, when my friend delves into 50.1, 50.2 and 50.3, and the state of the evidence, et cetera, again submissions are made about support.

PN2809

Those submissions either should be dismissed or given no weight at all, Commissioner. Those are based on no direct evidence from those that were instructing Mr Crouch. They're not from Mr Watson and there's no evidence from Mr Boyd. Anything about the support that was provided, any of that evidence we say should either not be accepted or very little weight applied to it, attached to it.

PN2810

In terms of the advising of serious concerns and advising of those promptly, as I think everyone recognises that six-month period, what may or may not have happened prior to is one aspect. Certainly by the time we started a serious review process which is the first time that termination of this program comes into play, there was no advising of serious concerns in any form of prompt way.

PN2811

It didn't follow the explanation that was given in cross-examination with things having to be done in order. The documents produced following a call for material to test that, establishes that. That evidence was to try and get you to a view, Commissioner, that there was this big backlog and we had to go through it one-by-one and we couldn't do them simultaneously.

PN2812

Again, false. The documentation produced following that entirely inconsistent with responses given under cross-examination. There were at all times in this of course as well incredible imbalances in power between Mr Crouch who sits with the only employer to enable him to be employed and pursue his dream of being and air traffic controller, and Mr Crouch has got to attend and participate in these processes and sit for 180 days, unutilised in circumstances where we've got evidence that others have been.

PN2813

Yes, on one view he has remained paid over that period but the stress and the angst of the review process which commenced an incredible amount of time ago and no interest of Airservices to enable him to perform any form of active work or active duty while the time was growing and they were supposedly under significant resource constraints. They had one of their own pushed up to home, to sit and wait.

PN2814

There were a few points raised by Mr Lovell's not understanding the relevance or that there wasn't relevance from points about the deficiencies in the delivery and the quality of instructors. We say that is directly relevant. It's directly relevant to the way in which he, Mr Crouch, was not appropriately managed in accordance with the requirements under clause 50 and how the review process also failed to deliver in accordance with those obligations.

PN2815

The opinion they say of performance and comparative assessment is not relevant. We say, if nothing else, when one considers if decisions are proportionate, with all that information at their fingertips and at their disposal and in their systems, what better way to ensure that careful and proportionate and fair decisions are being made.

PN2816

So what we rather have here is a bunch of people being called in to have Mr Crouch as their guinea pig to perform their first review, and to try and then tell you that they've done 15 reviews, well, 14 of them followed Mr Crouch, Commissioner. Only to have the review and each of those reviews seriously, seriously undertaken in an unacceptable way.

PN2817

The opinion of his performance, the interrogation of his performance, the interrogation of the submissions, he was asked and they were aware he was providing and told were being taken into account. It's not good enough to have individuals in these circumstances say, well, yes, either I didn't get it but my letter said I did; I did get it; or I got it and I just read and did nothing further.

PN2818

It fails any test and any of the requirements sitting under clause 50 of the enterprise agreement in relation to the management of Mr Crouch. We say that given Mr Crouch's prior performance and when having regard to the support that was provided prior to him becoming ill, you can be satisfied on the balance of probabilities that had that performance and that support continued, that 1.3 extra per cent that he needed to get to 70, would have occurred.

PN2819

We can say on the balance of probabilities, when having regard to his prior performance and the scores that sit in the 80s and 90s and when you balance out that there were some in phase 1 too that required a supplementary but with the support jumped up to 90 per cent, jumped over 70 per cent, with proper support we say you could infer that he would have passed that exam if he was given that support.

PN2820

He didn't. He wasn't. And that became and it is very apparent that if one reads this evidence objectively, the fact that he failed that last exam by 1.3 per cent, absent everything else, absent any of his submissions, absent any of his complaints, absent of his other performance, absent any of the comparative performance, that sole fact was the determining fact and Mr Bosnich made that point a number of times, in determining that his training should be terminated.

PN2821

Commissioner, unless you had any other questions for me, those were the points that I wished to raise in response. I beg your pardon, I should address the last point that Mr Lovell raised with you which is your powers and what it is that you can and cannot do here. Under clause 10.1 of the enterprise agreement, that is where the power is conferred upon the Fair Work Commission to settle disputes, firstly, on an alternative dispute resolution process which we're not here about but then the Fair Work Commission can arbitrate and make determinations that are binding on the parties subject to rights of appeal.

PN2822

The questions, as we pose them in paragraph 1 of our closing submissions is for that very determination to be made to it in respect of the resolution of this dispute. I sit with extreme concern to hear that what would be proposed by Airservices would be to place Mr Crouch in the very same position that he's here complaining to you about, and that there would be, I apprehend, a significant apprehension on the behalf of Mr Crouch that should he be put back in such a position it would only lead to further disputes under the enterprise agreement and Mr Crouch being required to exhaust more resources, financial resources, to the matter.

PN2823

We say that making determinations binding on the parties enables you to determine that the relevant clauses 50.1, 2 and 3 apply to Mr Crouch. That those clauses haven't been complied with and that in order to comply with them he be re-coursed and provided with remedial training and support in accordance with the enterprise agreement to ensure that that agreement is complied with on an ongoing basis on behalf of Airservices Australia.

PN2824

We say you do have that power to make such a determination and it is something which we say we have also on an open basis, in an attempt to avoid ongoing disputation, offered up. Unfortunately, that has not been acceptable to Airservices Australia to date and which is why Mr Crouch seeks the determination and the relief in the terms that he does, to resolve his dispute.

PN2825

THE COMMISSIONER: Thank you, Mr Hardy. I don't have any further questions of you. Unless there's anything further from both parties, I'll now shortly adjourn and reserve my decision. Is there anything further from either party?

PN2826

MR HARDY: Nothing further from Mr Crouch.

PN2827

THE COMMISSIONER: Thank you and Mr Lovell?

PN2828

MR LOVELL: Or from the respondent, Commissioner.

PN2829

THE COMMISSIONER: Thank you very much for the evidence and submissions over the three days that we've heard this matter. I will now reserve my decision. What I do indicate to the parties about the reserved status is that the decision will be delivered in accordance with the Commission's usual timeframes of these matters and 90 per cent of the Commission's decisions are published within I think it's eight weeks of the decision being reserved. I'll endeavour to meet that.

PN2830

What I would indicate about this particular decision is that it probably is somewhat more complex than normal decisions and so it will take me somewhat longer to determine all the matters that require determination. The Commission will now adjourn. Thank you.

PN2831

MR LOVELL: Thank you, Commissioner.

ADJOURNED INDEFINITELY [4.36 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A6 APPLICANT'S OUTLINE OF CLOSING SUBMISSIONS. PN2418

EXHIBIT #R6 RESPONDENT'S OUTLINE OF SUBMISSIONS................ PN2760

EXHIBIT #R7 RESPONDENT'S SUBMISSIONS ON REPRESENTATION PN2761

EXHIBIT #R8 UPDATED ATTACHMENT AC01......................................... PN2762

EXHIBIT #R9 POSITION DESCRIPTION FOR ATC TRAINING LEAD. PN2763

EXHIBIT #R10 TRAINING REVIEW TEMPLATE...................................... PN2764