Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — Employment of part-time check pilots (Capiteq Limited)
Legislation
Subsection 98 (4A) of the Civil Aviation Act 1988 (the Act) empowers CASA to issue Civil Aviation Orders (the CAOs) not inconsistent with the Act or regulations made under the Act with respect to any matter in relation to which regulations may be made for the purposes of sections 23, 23B or 28BA of the Act. Subsection 98 (5A) of the Act empowers CASA to issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft.
Section 28BA of the Act deals with general conditions that apply to an Air Operator’s Certificate (AOC). One of these conditions, as specified in paragraph 28BA (1) (b), is that the AOC is subject to any conditions specified in the regulations or the CAOs.
Civil Aviation Order 82.5 (CAO 82.5) is issued under subsection 98 (4A) and paragraph 28BA (1) (b) of the Act and sets out conditions applicable to AOCs authorising regular public transport operations in high capacity aircraft. Paragraph 3.1 of CAO 82.5 requires each operator to provide a training and checking organisation under regulation 217 of the Civil Aviation Regulations 1988 (CAR 1988) which provides, among other things, that an operator of a regular public transport service must provide a training and checking organisation so as to ensure that members of the operator’s operating crews maintain their competency. Paragraph 3.2 requires a training and checking organisation to be in accordance with Appendix 2.
Appendix 2 to CAO 82.5 sets out requirements concerning the management, training methods and facilities of the training and checking organisation. In particular, paragraph 2.4 of Appendix 2 requires all persons appointed to a position with the operator’s training and checking organisation to be employed full-time by the operator. This includes persons appointed to the position of check pilot, training pilot, or check and training pilot.
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the CAOs. Under subregulation 11.160 (2), an exemption may be granted to a person, or to a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.
Under subregulation 11.205 (1) of CASR 1998, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.225 of CASR 1998, an exemption must be published on the Internet. Under subregulation 11.230 (1), an exemption ceases on the day specified within it (but no longer than 3 years after its commencement) or, if no day is specified, 3 years after commencement.
Instrument
Capiteq Limited, trading as Airnorth (the operator), operates a fleet of Embraer ERJ 170, EMB 120 and Fairchild SA227 aircraft. The current arrangement of the operator’s training and checking program utilises contract staff, including Mr Cameron Marchant who is employed full-time by Chartair Pty Ltd (Chartair) as chief pilot and check and training pilot. Chartair and the operator have signed a memorandum of understanding allowing staff to serve as check, training, or check and training pilots for both organisations, while being employed by Chartair and while ensuring there is no conflict in scheduling.
In order to implement this arrangement, CASA EX116/14 exempts the operator from the requirement to comply with paragraph 2.4 of Appendix 2 of CAO 82.5. This would enable the operator to employ Mr Marchant, or any other person, on a part-time basis for checking and/or training on the operator’s Metro 23 aircraft and flight simulators.
The exemption is subject to a number of conditions, including that the pilot must be inducted into, and be maintained as part of, the operator’s training and checking organisation in accordance with the operator’s operations manual, and that a contract for services be in place between the operator and the other party who has employed the pilot. The operator must also assign the duties to be carried out by the pilot.
Legislative Instruments Act
Under regulation 5A of CAR 1988, if CASA has issued a CAO, and CASA later issues an exemption that affects the operation of the CAO, the later document is declared to be a disallowable instrument. Under subparagraph 6 (d) (i) of the Legislative Instruments Act 2003 (the LIA), an instrument is a legislative instrument for section 5 of the LIA if it is declared to be a disallowable instrument under legislation in force before the commencement of the LIA. CAR 1988 commenced before the commencement of the LIA.
This instrument affects the operation of paragraph 2.4 of Appendix 2 of CAO 82.5 and is, therefore, a legislative instrument, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
The instrument has been issued at the request of the operator. It is of beneficial effect to the operator’s business. In these circumstances, it is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LIA.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required (OBPR id: 14507).
Making and commencement
The exemption has been made by a delegate of CASA relying on the power of delegation in subregulation 11.260 (1) of CASR 1998.
The exemption commences on the day of registration and expires at the end of August 2017, as if it had been repealed by another instrument.
[Instrument number CASA EX116/14]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — Employment of part-time check pilots (Capiteq Limited)
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the legislative instrument
The legislative instrument exempts Capiteq Limited (the operator) from compliance with paragraph 2.4 of Appendix 2 of Civil Aviation Order 82.5, requiring the employment of a person with the operator’s training and checking organisation to be employed full-time. The exemption allows a person to be engaged, under contract, as the operator’s check, training, or check and training pilot for the operator’s Metro 23 aircraft and flight simulators on a part‑time basis.
Human rights implications
This legislative instrument does not engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority