Change is in the air

[kasper]

The Australian Consumer Law doesn't seem to agreeRefusal to supply products or services

 

Kaz

I think you will find that the type of services being envisaged by the ELAAA would fall into those where declining to supply would not be legal. Just look at the page you link to:

"There are a few circumstances, where a suppliers' refusal to supply is breaking the law.

 

This may occur when a supplier is:

 

• misusing their market power
   
   
  
• involved in a boycott
   
   
  
• imposing minimum resale prices on retailers
   
   
  
• engaging in exclusive dealing
   
   
  
• acting unconscionably."
   
   
  

 

 

Now provided you are prepared to sign up with whatever disciplinary processes they will be required to have in place (CASA will require them as part of the approvals) then as a general consumer sales organization it would be near on impossible for them to sustain a refusal of service as an arbitrary refusal would fall foul of dot point 5.

 

Basic outcome will be that it will by nature be required to be a general offering to all willing to abide by and sign up to the governance controls that are going to be required by CASA to allow the company to operate at all.

 

 

[Jim McDowall]

The Australian Consumer Law doesn't seem to agreeRefusal to supply products or services

 

Kaz

My reading of the link is that Consumer law does apply - it is just not stated in words of one syllable.

Fee of service is the model adopted by CASA which they have delegated to the various bodies like RA-Aus. Why not another body. The member interest in the recent elections was very low (demonstrated by the number of voting papers returned) which indicates that in actual fact the vast majority of RA-Aus members are really just consumers of services - membership is simply the mode of access to the services. Consequently it would appear that who owns the "service provider" is of little interest to the consumer.In the event of a competitor to RA-Aus evolving the market will operate as any other with consumers making decisions on the basis of the perceived suitability of the "offer" as with any other purchasing decision.

 

 

[coljones]

But if you are a company providing fees for service unlike an association where membership can be refused and service denied a stand alone pty ltd company cannot refuse service on a whim AND the consumer laws apply to those services.Swings and roundabout to the structures used by the 'service provider'

They might not be able to discriminate between people based on a service they offer but they are not prevented from refusing to be in the business of providing a particular service at all. You can't sue a shop if they refuse to stock Dick Smith Foods. People wouldn't be able to sue if they refuse to manage 95-10, unless CASA insisted as part of some deed.

 

 

[gandalph]

For people who think the new organisation is going to magically turn back the clock to an easier time of "do what ever you think is OK" or "just use common sense" - will find it's like ditching one sister for the other - you still have the same Mother-in-Law (CASA).

FV - Love it! That is about the best analogy I've seen. Can I borrow it?

 

 

[kaz3g]

I think you will find that the type of services being envisaged by the ELAAA would fall into those where declining to supply would not be legal. Just look at the page you link to:"There are a few circumstances, where a suppliers' refusal to supply is breaking the law.

This may occur when a supplier is:

 

• misusing their market power
   
   
  
• involved in a boycott
   
   
  
• imposing minimum resale prices on retailers
   
   
  
• engaging in exclusive dealing
   
   
  
• acting unconscionably."
   
   
  

 

 

Now provided you are prepared to sign up with whatever disciplinary processes they will be required to have in place (CASA will require them as part of the approvals) then as a general consumer sales organization it would be near on impossible for them to sustain a refusal of service as an arbitrary refusal would fall foul of dot point 5.

 

Basic outcome will be that it will by nature be required to be a general offering to all willing to abide by and sign up to the governance controls that are going to be required by CASA to allow the company to operate at all.

Perhaps you could explain how simply refusing to supply a service is unconscionable conduct under s21? It's possibly also instructive to look at the definition of a consumer in s3.

 

Kaz

 

 

[kasper]

They might not be able to discriminate between people based on a service they offer but they are not prevented from refusing to be in the business of providing a particular service at all. You can't sue a shop if they refuse to stock Dick Smith Foods. People wouldn't be able to sue if they refuse to manage 95-10, unless CASA insisted as part of some deed.

OK - I see what you mean. Agreed there is nothing in the general consumer law to force supply of all aspects of an area - but i would be very surprised if areas like 95.10 as you note are not included because frankly they are some of the lowest impact aircraft out there given the legal requirements of the CAO.

I would be more interested in understanding if they are going to cover 95.32 ... an area that frankly RAAus Tech seem to have no bloody idea about if its weight shift yet are covering ... it would be lovely if they do cover it and have a clue about the differences that actually exist between the two control systems. I'll leave powered parachutes out of this because I really do not have any experience with them.

 

We will just have to wait and see how much of which sectors of aviation they are launching with.

 

But as a statement you saying ACL would not apply you are off track because there is nothing in ACL that forces anyone to provide services that are not within their business - it only deals with discrimination in supply of services that a company actually supplies.

 

 

[gandalph]

Perhaps you could explain how simply refusing to supply a service is unconscionable conduct under s21? It's possibly also instructive to look at the definition of a consumer in s3.Kaz

Go get 'em Kaz!

 

 

[kasper]

Perhaps you could explain how simply refusing to supply a service is unconscionable conduct under s21? It's possibly also instructive to look at the definition of a consumer in s3.Kaz

Kaz I do not want to go into detail and step through the parts - I do that when it is about the RAAus Constitution and/or the CAOs because this is a flying forum and the legal issues directly relating to the flying activity are particularly on point.

On the ACL and application of it to a service provider that is likely to be ELAAA I am just going to play my solicitor card and say in my opinion my comments are the law as it stands.

 

Fully appreciate that you may not like this and feel I am just avoiding but this is not a forum for lawyers or legal students studying the ins and out of ACL so I am not going into full detail.

 

 

[ave8rr]

They might not be able to discriminate between people based on a service they offer but they are not prevented from refusing to be in the business of providing a particular service at all. You can't sue a shop if they refuse to stock Dick Smith Foods. People wouldn't be able to sue if they refuse to manage 95-10, unless CASA insisted as part of some deed.

Col, hopefully there will be no 95-10 or any of the other orders currently in existence. Have one order allowing any aircraft up to say 600kg MTOW. Have the designer / builder set the weight within the 0-600kg. That's how it's done in UK, Canada, NZ etc. Drop the requirement for factory built for training. NZ and other countries can build an aircraft from a kit and use that aircraft for training.

 

 

[kaz3g]

".........?But as a statement you saying ACL would not apply you are off track because there is nothing in ACL that forces anyone to provide services that are not within their business - it only deals with discrimination in supply of services that a company actually supplies.

The ACL does not deal in discrimination in supply of services at all since the proscription against price discrimination in s49 of the old TPA was repealed.

 

Discrimination in the supply of services is dealt with under Equal Opportunity legislation, State and Commonwealth, but only applies in relation to selected attributes. Being a pilot or aircraft owner or being desirous of that happy state is not one of them.

 

Kaz

 

 

[kaz3g]

On the ACL and application of it to a service provider that is likely to be ELAAA I am just going to play my solicitor card and say in my opinion my comments are the law as it stands.

Fully appreciate that you may not like this and feel I am just avoiding but this is not a forum for lawyers or legal students studying the ins and out of ACL so I am not going into full detail.

It's not got anything to do with my liking it. It's just about a correct interpretation of the law.

 

I guess what I'm saying is that, in my opinion, your opinion is very clearly wrong and I actually am a solicitor with a Principal Solicitor's practising certificate and ten years of practice behind me including in consumer law. But I could be wrong.

 

Kaz

 

 

[FlyingVizsla]

This is a valid issue to consider for pilots. If RAA decided to not offer a service to a segment of the recreation industry, maybe because it was complicated to do so, even though their 'charter' or agreements allowed them to offer that service, and they were a monopoly or duopoly; is there any remedy? With another player about to leap in the sand pit this may not be such an issue. If one, or both, refused to register or licence; is there anything that can be done?

 

There are many examples - hypothetically - say ELAAA decide not to accept 95-10 registrations because that market segment is too small and difficult, but they are 25% of what RAA charges - could they be 'forced' to accept applications; or is price / cost not sufficient grounds to prove a denial of supply?

 

If RAA declines to take a particular member, who cannot legally fly without being a member, is there any way around it, particularly if RAA was the only organisation that could offer that membership? I know there will be members who get asked to leave for disciplinary reasons connected with their unsafe flying, but here I am thinking of other issues - could be anything ... accusing the Board of cooking the books, a personality clash with the Grand Poohbah; all unconnected with flying and aircraft maintenance, but ending with the member expelled.

 

 

[kaz3g]

This is a valid issue to consider for pilots. If RAA decided to not offer a service to a segment of the recreation industry, maybe because it was complicated to do so, even though their 'charter' or agreements allowed them to offer that service, and they were a monopoly or duopoly; is there any remedy? With another player about to leap in the sand pit this may not be such an issue. If one, or both, refused to register or licence; is there anything that can be done?There are many examples - hypothetically - say ELAAA decide not to accept 95-10 registrations because that market segment is too small and difficult, but they are 25% of what RAA charges - could they be 'forced' to accept applications; or is price / cost not sufficient grounds to prove a denial of supply?

 

If RAA declines to take a particular member, who cannot legally fly without being a member, is there any way around it, particularly if RAA was the only organisation that could offer that membership? I know there will be members who get asked to leave for disciplinary reasons connected with their unsafe flying, but here I am thinking of other issues - could be anything ... accusing the Board of cooking the books, a personality clash with the Grand Poohbah; all unconnected with flying and aircraft maintenance, but ending with the member expelled.

The terms of the agreement with CASA would be important in determining the question of supply of service in either case and I don't have that information.

 

If the agreements do not impose a positive obligation then I doubt a private company could be required to provide a particular service or to service a particular individual (but it would turn on the circumstances of that refusal).

 

The services that RAA provides, within the confines of the CASA agreement, the Regs and the CAOs, are ultimately questions for the membership. The denial of service to a particular member is something I would like to take on notice...my view is that it is abhorrent and that the correct process is for the persons fitness to retain membership to be examined instead in accordance with the constitution and the rules of natural justice. Kasper and Don have much better understandings of the new constitution than I so might offer a view on this.

 

Kaz

 

 

[kaz3g]

The Commonwealth has limited powers to legislate in regard to discrimination and it is left to the States.

 

In Victoria, the EO Act provides protection to club members as follows:

 

EQUAL OPPORTUNITY ACT 2010 - SECT 65

 

Discrimination against club members

 

A club, or a member of the committee of management or other governing body of a club, must not discriminate against a member of the club—

 

(a) by refusing, or failing to accept, the member's application for a different category or type of membership; or

 

(b) by denying or limiting access to any benefit provided by the club; or

 

© by varying the terms of membership; or

 

(d) by depriving the member of membership; or

 

(e) by subjecting the member to any other detriment.

 

This covers discrimination occurring in Victoria and it is likely other States and the ACT have similar provisions.

 

 

[Ron5335]

I don't believe this.......

 

A new organisation is being rumored to come onto the scene to offer an alternative, and everybody is lining up to sue them.

 

If they (the new organisation), read all this, Do you think they would rethink their intentions?

 

 

[kaz3g]

I don't believe this.......A new organisation is being rumored to come onto the scene to offer an alternative, and everybody is lining up to sue them.

 

If they (the new organisation), read all this, Do you think they would rethink their intentions?

I think you have it back to front. The new organisation registered by ASIC which is simply awaiting the proposed new CASA regs would appear to be less likely to an action for not providing particular services or services to individuals, ie less accountable, than is RAA currently.

 

And I haven't read anything that suggests anyone is litigating.

 

Kaz

 

 

[ben87r]

Let's just hypothesise for a moment (which is all we can do with NO ACTUAL INFO).

 

Let's say they do get approval for their own AC register with VH reg, owner maintained, training or casa licenced and 1500kg If so etc etc.

 

Let's also say the don't want to do 95.10 and the other UL segments as they could choose to do.... wouldn't that be the best of both worlds??

 

The GA guys could come through with their C1xx or PA 2xx, the folk wanting GA type plastics could also if they choose, RA could stick with under 600kg OCTA and start looking after the lighter end again and everyone wins? Or am I being too optimistic?

 

I don't have an interest in flying RA because the aircraft I would consider buying wouldn't fit in the weight limitation, no biggie as I wouldn't want to spoil anyone's fun in RA but if there was an alternative I would be very interested if it suited.

 

 

[turboplanner]

RA could stick with under 600kg OCTA and start looking after the lighter end again and everyone wins? Or am I being too optimistic?

You're being too optimistic.

 

Under 600 kg has a bad case of root rot, as in forgetting the roots of recreational flying and becoming besotted with "GA Lite"

 

It badly needs a few rag and tube champions in a hurry.

 

 

[ben87r]

I'm sure you're right TP, but what I was thinking was GA lite would move across for (hypothetically) more weight and CTA and leave RA for grass roots?

 

Ideal world stuff but ild like to see both ends prosper.

 

 

[coljones]

Let's just hypothesise for a moment (which is all we can do with NO ACTUAL INFO).Let's say they do get approval for their own AC register with VH reg, owner maintained, training or casa licenced and 1500kg If so etc etc.

 

Let's also say the don't want to do 95.10 and the other UL segments as they could choose to do.... wouldn't that be the best of both worlds??

 

The GA guys could come through with their C1xx or PA 2xx, the folk wanting GA type plastics could also if they choose, RA could stick with under 600kg OCTA and start looking after the lighter end again and everyone wins? Or am I being too optimistic?

 

I don't have an interest in flying RA because the aircraft I would consider buying wouldn't fit in the weight limitation, no biggie as I wouldn't want to spoil anyone's fun in RA but if there was an alternative I would be very interested if it suited.

A bit like the model for ice cream sellers on a beach. The first will set up anywhere on the beach, because they can. The second and All the others Will have a tendency to set up in the middle, and not down the beach, because they want a share of the same, not a reduced, customer base. This will force the 1st to the middle to recapture some of their, now, lost business (why would anyone want to walk past the middle) Because the volume to each seller is reduced so is their profit so each will trim their product lines to only the most profitable lines. (Think ALDI or Bunnings) Which is the least cost, to the registrar, aircraft? Is it 95-10 or is it the factory made plastics? If the non CASA players are facing price competition there may well be an abandonment of those classes of planes and pilot that are less profitable. Yes, the devil will be in the detail!

 

 

[turboplanner]

I'm sure you're right TP, but what I was thinking was GA lite would move across for (hypothetically) more weight and CTA and leave RA for grass roots?Ideal world stuff but ild like to see both ends prosper.

That would be a good idea, just needs supporters.

 

 

[kasper]

Let's just hypothesise for a moment (which is all we can do with NO ACTUAL INFO).Let's say they do get approval for their own AC register with VH reg, owner maintained, training or casa licenced and 1500kg If so etc etc.

 

Let's also say the don't want to do 95.10 and the other UL segments as they could choose to do.... wouldn't that be the best of both worlds??

 

The GA guys could come through with their C1xx or PA 2xx, the folk wanting GA type plastics could also if they choose, RA could stick with under 600kg OCTA and start looking after the lighter end again and everyone wins? Or am I being too optimistic?

 

I don't have an interest in flying RA because the aircraft I would consider buying wouldn't fit in the weight limitation, no biggie as I wouldn't want to spoil anyone's fun in RA but if there was an alternative I would be very interested if it suited.

Too optimistic I think

- the entire structure of RAAus is geared to covering the entire field on RAAus aircraft

 

- for good or ill the growth in RAAus appears to be the lighter end of GA migrating down to lower costs of operation

 

- seeing all (or even a significant proportion) of the existing RAAus 'plastic fantastic'/'GA lite' airframes and flyers leave will precipitate a rapid spiral of financial collapse for RAAus

 

The third point is my analysis of the RAAus financial situation based on the existing cost structures and losses requiring a growth in numbers to break even ... seeing a couple of thousand RAAus members/airframes leave will likely hasten the end of RAAus as it currently exists simply through exhaustion of funds unless we can respnd rapidly on the costs side ... because I really do not think members of RAAus will accept any further increases in cost.

 

And do not forget the RAAus Constitution - if it goes insolvent anything left at the end of the RAAus can only be transferred to an organisation that covers the same basic ground as RAAus (much paraphrased here) ... so if we become insolvent and receiver are called in the only organisations that currently exist that they can transfer the assets and liabilities across to as a whole are the HGFA or the nacent ELAAA ...

 

From a blood spilling - gut them business perspective the possibility that ELAAA might actually pick up the entire RAAus operations from an insolvency is a practical possibility.

 

If you want RAAus to continue to exist then as members we NEED RAAus board and management to actually be prepared for a loss of members to ELAAA or any other provider that may get through the CASA hoops ... because if they start slicing off parts of RAAus it will need to be able to respond very rapidly and I am worried that our cost base is just not that responsive.

 

 

[FlyingVizsla]

ELAAA Pty Ltd cannot be granted the remains of RAA's assets. The RAA constitution is clear that it can only go to a like-minded Not for Profit, decided by the members:-

 

"Winding up

 

63 Surplus assets not to be distributed to Members

 

If the Company is wound up, any surplus assets must not be distributed to a Member or a former Member of the Company, unless that Member or former Member is a not-for-profit entity described in Clause 64.1.

 

64 Distribution of surplus assets

 

64.1 Subject to the Corporations Act and any other applicable Act, and any court order, any surplus assets that remain after the Company is wound up must be distributed to one or more not-for-profit entities:

 

(a) with purpose(s) similar to, or inclusive of, the purpose(s) in Clause 6, and

 

(b) which has governing documents which prohibit the entity from being carried on for the profit or gain of individual members, and which prohibit the distribution of any surplus assets to its Members to at least the same extent as the Company.

 

64.2 The decision as to the entity or entities to be given the surplus assets must be made by a special resolution of Members at or before the time of winding up. If the Members do not make this decision, the Company may apply to the Supreme Court to make this decision."

 

 

ELAAA might pick up some business if RAA collapses but they won't be picking up their assets. Another Not for Profit could establish itself quickly before hand, pick up the ashes, and intellectual property (manuals etc) and get their approvals together in the future. However, I don't see RAA collapsing any time soon.

 

 

[Yenn]

We seem to be overlooking the fact that ELAAA and RAAus will be the same. They are companies, not clubs with members. At present RAAus is run by the board members and all we who pay our dues and registration fees can do is vote board members in or out. That is if we take the trouble to vote at all.

 

That looks to me as if being in RAAus will deliver for an annual fee, registration of my plane and a pilot certificate to fly RAAus reg. planes, plus the ability to vote for board members, recieve an e magazine, and a few other things.

 

Going the ELAAA way for a bi annual fee I will be able to register my plane and have a pilots certificate. Plus most of the other things from RAAus, such as safety advice etc. Cost of getting the pilot certificate and an acceptance of the plane onto the register I don't know yet.

 

 

[kasper]

ELAAA Pty Ltd cannot be granted the remains of RAA's assets. The RAA constitution is clear that it can only go to a like-minded Not for Profit, decided by the members:-"Winding up

 

63 Surplus assets not to be distributed to Members

 

If the Company is wound up, any surplus assets must not be distributed to a Member or a former Member of the Company, unless that Member or former Member is a not-for-profit entity described in Clause 64.1.

 

64 Distribution of surplus assets

 

64.1 Subject to the Corporations Act and any other applicable Act, and any court order, any surplus assets that remain after the Company is wound up must be distributed to one or more not-for-profit entities:

 

(a) with purpose(s) similar to, or inclusive of, the purpose(s) in Clause 6, and

 

(b) which has governing documents which prohibit the entity from being carried on for the profit or gain of individual members, and which prohibit the distribution of any surplus assets to its Members to at least the same extent as the Company.

 

64.2 The decision as to the entity or entities to be given the surplus assets must be made by a special resolution of Members at or before the time of winding up. If the Members do not make this decision, the Company may apply to the Supreme Court to make this decision."

 

 

ELAAA might pick up some business if RAA collapses but they won't be picking up their assets. Another Not for Profit could establish itself quickly before hand, pick up the ashes, and intellectual property (manuals etc) and get their approvals together in the future. However, I don't see RAA collapsing any time soon.

Thats if there is surplus assets on closure ... if we are insolvent any for profit can come in and buy the assets and liabilities from the receiver ... and frankly if we were to go insolvent and into windup another sports/recreational flying organization acquiring the remains would be preferable to a full wind up