CASA EX05/18 — Implementation of Drug and Alcohol Management Plans Exemption 2018 (Cth)

Instrument number CASA EX05/18

I, SHANE PATRICK CARMODY, Director of Aviation Safety, on behalf of CASA, make this instrument under regulations 11.160 and 11.205 of the Civil Aviation Safety Regulations 1998.

[Signed S. Carmody]

Shane Carmody
Director of Aviation Safety

17 September 2018

CASA EX05/18 — Implementation of Drug and Alcohol Management Plans Exemption 2018

1          Name

                 This instrument is the CASA EX05/18 — Implementation of Drug and Alcohol Management Plans Exemption 2018.

2          Duration

                 This instrument:

(a)   commences on the day after registration; and

(b)   is repealed at the end of 31 July 2020.

3          Definitions

                 In this instrument:

applicable SSAA: see subregulation 99.010 (1) of CASR.

contractor, of a non-DAMP organisation, means a person, or the employee of a person, who is:

(a)   a party to a contract with the organisation; or

(b)   a subcontractor.

DAMP: see subregulation 99.010 (1) of CASR.

DAMP organisation: see subregulation 99.010 (1) of CASR.

employee, of a non-DAMP organisation, includes a contractor of the organisation.

exempted provisions means regulations 99.035 and 99.040, and paragraph 99.045 (d), of CASR.

micro-business DAMP, of a micro-business DAMP organisation, means the micro-business DAMP adopted by the organisation under the micro-business exemption instrument.

micro-business DAMP organisation means a person that is complying with the conditions on the exemption mentioned in the micro-business exemption instrument.

micro-business exemption instrument means CASA EX66/18 — Implementation of Drug and Alcohol Management Plans (Micro-businesses) Exemption 2018, registered with the Federal Register of Legislation identifier F2018L00684, as in force from time to time, and any instrument that has the effect of renewing the exemption granted under the micro-business exemption instrument, as in force from time to time.

non-DAMP organisation means a person other than a DAMP organisation.

subcontractor means a person who is a party to:

(a)   a contract with a contractor of a non-DAMP organisation within the meaning of paragraph (a) of the definition contractor in this section; or

(b)   a contract with another subcontractor (under a previous application of this definition).

4          Exemption — performance of applicable SSAA by DAMP organisation, or micro-business DAMP organisation, for a DAMP organisation

        (1)     This section applies if:

(a)   there is a contract between a DAMP organisation (the first organisation) and another DAMP organisation (the second organisation) in relation to theperformance of an applicable SSAA for the second organisation; and

(b)   a SSAA employee of the first organisation performs, or is available to perform, the applicable SSAA for the second organisation; and

(c)   the second organisation is satisfied on reasonable grounds that the first organisation is implementing the first organisation’s DAMP in relation to the employee.

        (2)     This section also applies if:

(a)   there is a contract between a micro-business DAMP organisation (the first organisation) and a DAMP organisation (the second organisation) in relation to theperformance of an applicable SSAA for the second organisation; and

(b)   a SSAA employee of the first organisation performs, or is available to perform, the applicable SSAA for the second organisation; and

(c)   the second organisation is satisfied on reasonable grounds that the first organisation is complying with the terms of the first organisation’s micro‑business DAMP in relation to the employee.

        (3)     The second organisation is exempt from compliance with the exempted provisions, to the extent that compliance requires implementation of the second organisation’s DAMP in relation to the SSAA employee’s performance of, or availability to perform, the applicable SSAA for the second organisation.

        (4)     The exemption is subject to the condition that the second organisation must:

(a)   keep records that evidence its grounds for the satisfaction mentioned in paragraph (1) (c) or (2) (c); and

(b)   ensure each record states the date the record was created; and

(c)   keep each record in a secure location for 5 years from the date that the record is created; and

(d)   destroy or delete each record within 6 months after the end of the 5-year period for which the record was kept under paragraph (c); and

(e)   implement its DAMP in relation to the SSAA employee to the extent that the DAMP gives effect to the matters mentioned in subregulation 99.065 (2) of CASR; and

(f)    notify the first organisation in writing of any implementation of the second organisation’s DAMP under paragraph (e).

Note   Subregulation 99.065 (2) requires that a DAMP include requirements to not permit a SSAA employee to perform, or be available to perform, a SSAA in specified circumstances related to: (1) the employee’s faculties being suspected of being impaired due to the employee being under the influence of prescribed drugs or alcohol, or (2) the SSAA employee being involved in an accident or serious incident.

        (5)     In this section:

SSAA employee: see subregulation 99.010 (1) of CASR.

5          Exemption — emergency

        (1)     This section applies if:

(a)   there is a contract between an emergency services organisation and a DAMP organisation in relation to theperformance of an applicable SSAA for the DAMP organisation; and

(b)   the emergency services organisation is a non-DAMP organisation; and

(c)   an employee of the emergency services organisation performs, or is available to perform, the applicable SSAA for the DAMP organisation in response to an emergency; and

(d)   it is not reasonably practicable for the DAMP organisation to implement its DAMP in relation to the employee’s performance of, or availability to perform, the applicable SSAA in response to the emergency.

        (2)     The DAMP organisation is exempt from compliance with the exempted provisions, to the extent that compliance requires implementation of the DAMP organisation’s DAMP in relation to the employee’s performance of, or availability to perform, the applicable SSAA for the DAMP organisation in response to the emergency.

        (3)     The exemption is subject to the following conditions:

(a)   the DAMP organisation must give the employee a drug and alcohol risk mitigation notice not more than 24 hours before the employee performs, or is available to perform, the applicable SSAA for the DAMP organisation in response to the emergency;

(b)   the DAMP organisation must make a contemporaneous record of the following information:

             (i)  the name and address of the employee to whom the notice is given;

            (ii)  the date and time the employee is given the notice;

           (iii)  details of the emergency in relation to which the notice is given;

(c)   if the DAMP organisation has reasonable grounds to believe the employee is adversely affected by a drug or alcohol while performing, or available to perform, the applicable SSAA in response to the emergency, the DAMP organisation must not allow the employee to perform, or be available to perform, the SSAA in response to the emergency whilst the reasonable grounds continue to exist;

(d)   if an accident or serious incident happens, involving the employee, while the employee is performing, or available to perform, the applicable SSAA in response to the emergency, the DAMP organisation must not allow the employee to perform, or be available to perform, the SSAA in response to the emergency during the period of 32 hours after the time the accident or incident happened.

        (4)     In this section:

accident: see subregulation99.010 (1) of CASR.

drug and alcohol risk mitigation notice means a notice stating the following:

(a)   the employee must not perform, or be available to perform, the applicable SSAA in response to the emergency if the employee is aware that he or she is adversely affected by a drug or alcohol;

(b)   if any of the following applies, the employee is encouraged to disclose this information to the DAMP organisation:

             (i)  the employee is taking a testable drug;

            (ii)  the employee has consumed alcohol within 24 hours before the employee performs, or is available to perform, the applicable SSAA in response to the emergency;

(c)   if the DAMP organisation has reasonable grounds to believe the employee is adversely affected by a drug or alcohol while performing, or available to perform, the applicable SSAA in response to the emergency, the DAMP organisation will not allow the employee to perform, or be available to perform, the SSAA in response to the emergency whilst the reasonable grounds continue to exist;

(d)   if an accident or serious incident happens, involving the employee, while the employee is performing, or available to perform, the applicable SSAA in response to the emergency, the DAMP organisation will not allow the employee to perform, or be available to perform, the SSAA in response to the emergency during the period of 32 hours after the time the accident or incident happened;

(e)   under Subpart 99.C of CASR, CASA may carry out a drug or alcohol test in relation to a person who performs, or is available to perform, an applicable SSAA;

(f)    for drug or alcohol testing under Subpart 99.C of CASR:

             (i)  testable drugs include opiates, cannabis, cocaine and amphetamines; and

            (ii)  the permitted level for alcohol is a level of alcohol of less than 0.02 grams of alcohol in 210 litres of breath.

emergency means an event or situation, requiring a significant and coordinated response, which:

(a)   endangers, or threatens to endanger, the safety or health of persons or animals; or

(b)   destroys or damages, or threatens to destroy or damage, property.

emergency services organisation means the Australian Federal Police, or a State or Territory police service, fire and rescue service, ambulance service, emergency service or volunteer rescue organisation, or other similar organisation.

opiate includes codeine and morphine.

serious incident: see subregulation99.010 (1) of CASR.

testable drug: see subsection 33 (1) of the Act.