Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — drug and alcohol management plan information
Exemption — use of pre-hiring drug and alcohol tests
Purpose
The first exemption will exempt drug and alcohol management plan (DAMP) organisations from a requirement to provide the date and time of each pre-deployment test in 6-monthly reports to the Civil Aviation Safety Authority (CASA). Pre‑deployment tests are drug and alcohol tests carried out on newly-hired or role-changing employees, before they may engage in safety-sensitive aviation activities (SSAA), for example, aircraft maintenance.
The second exemption will permit DAMP organisations to use pre-hiring drug and alcohol tests to comply with the requirements of a DAMP to test newly-hired employees. Otherwise, to comply with those requirements, the drug and alcohol test conducted on a person who was still an applicant would have to be repeated after he or she was formally appointed.
Legislation
Under subsection 9 (1) of the Civil Aviation Act 1988, (the Act), CASA has the function of conducting the safety regulation of civil air operations by means that include administering Part IV of the Act.
Part IV of the Act includes section 34. Under section 34, regulations may make provision for DAMPs for people who perform SSAA, and for CASA to conduct drug and alcohol testing of such people.
Subsection 98 (1) of the Act additionally provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.
The Civil Aviation Safety Regulations 1998 (CASR 1998) includes Part 99, Drug and alcohol management plans and testing (CASR Part 99).
The purpose of CASR Part 99 is to give effect to Part IV of the Act, by establishing a framework for the development of DAMPs similar to those already in place in other transport sectors, and by introducing random drug and alcohol testing by CASA for all persons involved in SSAA.
DAMPs
Under subregulation 99.030 (1) of CASR 1998, an organisation must develop a DAMP if the organisation is a DAMP organisation. A DAMP organisation is one that has employees or contractors who perform SSAA and is on a generic list of organisations defined in subregulation 99.030 (2) of CASR 1998, for example, Air Operator’s Certificate holders.
A DAMP is defined in regulation 99.045 of CASR 1998 as involving a drug and alcohol education program, drug and alcohol testing for certain employees and a drug and alcohol response program for employees who may test positive.
Under subregulation 99.050 (1) of CASR 1998, a DAMP must require that drug and alcohol testing be performed to certain specified standards, and be performed on SSAA employees.
The SSAA employees who must be tested by a DAMP organisation as part of its DAMP, include a person who joins the organisation to perform SSAA, or an employee who changes duties to commence performing SSAA. Under paragraph 99.050 (2) (a) of CASR 1998, such a person must be drug and alcohol tested unless, within 90 days before commencing to perform the SSAA, the person has been drug and alcohol tested under the DAMP with negative results. This is known in the industry as “pre‑deployment testing” and under subregulation 99.050 (1) and paragraph 99.050 (2) (a), it must be conducted on a person who is an employee or contractor, not merely an applicant for appointment as such.
Under subregulation 99.050 (2) of CASR 1998, there are other circumstances in which an SSAA employee must be tested, for example, after an accident while performing SSAA, if a DAMP supervisor has reasonable grounds to believe that the SSAA employee may be adversely affected by a testable drug or alcohol while performing or being available to perform SSAA, or if the employee is returning to work after a period during which he or she was not permitted to perform SSAA because of testable drug use.
DAMP reports to CASA
Under regulation 99.100 of CASR 1998, a DAMP organisation must provide CASA with certain information for each DAMP reporting period (i.e. the period of 6 months immediately before 1 March and 1 September). The information includes the number of the organisation’s employees who performed certain SSAA; the number attending DAMP education programs; the number and type of drug or alcohol tests undergone by SSAA employees under the DAMP during the period; the results of the tests, including the number of positive test results that a DAMP medical review officer has determined could be as a result of legitimate therapeutic treatment or some other innocuous source;
the date and time that the tests under the DAMP were conducted; and the role that each SSAA employee tested was undertaking at the time of being tested.
Exemption power
Under subregulation 11.160 (1) of CASR 1998, CASA may grant an exemption from compliance with a provision of CASR 1998. Under regulation 11.160, CASA may grant an exemption of its own initiative. Under subregulation 11.170 (3), in deciding whether to grant an exemption, CASA must regard as paramount the preservation of an acceptable level of safety. Under subregulation 11.205 (1), CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.210, it is an offence to fail to comply with a condition of an exemption.
Under regulation 11.225 of CASR 1998, an exemption must be published on the World Wide Web. Under subregulation 11.230 (1), an exemption ceases on the day specified within it (but no longer than 2 years after its commencement), or if no day is specified, 2 years after commencement.
First exemption — reasons
For some Australian airline and other aviation companies the annual turnover, recruitment and deployment of new SSAA personnel who must undergo specifically pre-deployment testing can be high. For some large organisations, it may exceed some thousands of employees and contractors annually. As part of the testing routine, it is expected that the date and time of the test of each person will be recorded by the organisation for its own personnel records. However, under paragraph 99.100 (1) (e) of CASR 1998, each DAMP organisation is required to compile this data, the vast bulk of which is expected to be negative results, and provide it to CASA in respect of each DAMP reporting period.
CASA has reviewed the specific requirements in paragraph 99.100 (1) (e) of CASR 1998 in relation to pre-deployment testing. Given the volume of work involved in this compilation and provision to CASA, the likelihood that the vast bulk of the pre‑deployment results will be negative, and the limited utility of such data to CASA in the first instance, CASA issued a general exemption from the reporting requirement to all DAMP organisations (CASA EX25/09; FRLI no. F2009L01205).
That exemption stops having effect at the end of 28 February 2011. This instrument extends the period of the exemption by a further 2 years so that it stops having effect at the end of 28 February 2013.
First exemption — conditions
The exemption is subject to certain conditions, including that the DAMP organisation must, as soon as practicable after a person undergoes a pre-deployment test under a DAMP, make a record of the person’s name and the date and time the test was conducted, and keep the record for a period of 5 years.
Second exemption — reasons relating to employees
CASA understands that, as in many other industries, it is the usual prudent practice of airline and other aviation companies to be satisfied of the suitability of applicants for employment or contract before binding arrangements are entered into with successful applicants. This extends to various forms of pre-hiring checks and includes pre-hiring drug and alcohol testing under the organisation’s DAMP.
However, as noted above, pre-hiring drug and alcohol testing does not satisfy the requirements of a DAMP under subregulation 99.050 (1) and paragraph 99.050 (2) (a) of CASR 1998 which require that the employee, as such, is to be tested.
CASA considers it unreasonable to expect that there be, in effect, a requirement to conduct a second drug and alcohol test on the appointed employee or contractor who has undergone pre-hiring drug and alcohol testing that produced negative results. Therefore, provided that testing was conducted to the prescribed standard under a DAMP, the exemption will have effect to ensure that pre-hiring testing will satisfy the DAMP requirement for employee testing.
Second exemption — reasons relating to contractors
The exemption will also moderate what would otherwise be a requirement for multiple drug and alcohol tests in the case of organisations, and their employees or subcontractors, who provide services on a contractual basis to several DAMP organisations.
For example, a baggage-handling, airline catering or security organisation (the third party) is not a DAMP organisation as such within the meaning of regulation 99.030 of CASR 1998. Nevertheless, the third party may be providing services to a number of separate DAMP organisations (for example, airlines), of such a nature and so frequently that its employees and contractors may become regular SSAA employees. They would, therefore, be subject to the DAMP of each DAMP organisation for whom the services were provided. As such, they would be required to be drug and alcohol tested under each relevant DAMP organisation’s DAMP on “first joining” the DAMP organisation, unless they had already been tested and found negative within the 90 days before SSAA deployment.
For such third party employees and subcontractors, the exemption will permit each of the DAMP organisations for whom services are provided to use the same (negative)
pre-hiring drug and alcohol test conducted under a DAMP.
For drug testing, however, the testing must meet the standard adopted in the DAMP of each DAMP organisation relying on the exemption. Thus, if the standard for a DAMP organisation wishing to rely on another DAMP organisation’s test is a urine test, but the actual test by the testing DAMP organisation was of oral fluid only, then the relying DAMP organisation would have to re-test the person to the urine standard of its DAMP.
This is an essential requirement to preserve the integrity of the standards of the relying DAMP organisations.
Second exemption — conditions
The exemption is subject to certain conditions, in particular that the pre-hiring test must be conducted in accordance with the requirements mentioned in paragraph 99.050 (1) (a) of CASR 1998 for employee testing.
Details of the exemptions
Details of the 2 exemptions and their conditions are in Appendix 1.
Legislative Instruments Act
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. Regulation 11.215 of CASR 1998 declares an exemption of this kind to be a disallowable instrument. The exemption is, therefore, a legislative instrument and it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
Prior to making CASA EX25/09, consultation under section 17 of the LIA was undertaken with AirServices Australia, the Australian Airports Association and a number of airlines to check the adequacy of the exemption in the light of organisational practices regarding applicants, employees and contractors.
Office of Best Practice Regulation (OBPR)
The exemption is of beneficial effect to those to whom it applies by relieving them of obligations they would otherwise have to meet. The OBPR does not require preparation of a Regulation Impact Statement in this case because a preliminary assessment of business compliance costs in the context of the nature of the instrument indicates that it will have only a nil to low impact on business.
Commencement and making
The instrument commences on 1 March 2011 and ceases to have effect at the end of 28 February 2013. It effectively extends the exemption in CASA EX25/09, which ceases to have effect at the end of 28 February 2011.
The exemption has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
[Instrument number CASA EX27/11]
ATTACHMENT 1
Details of exemption
1 Commencement
Under this section, the instrument commences on 1 March 2011 and stops having effect at the end of 28 February 2013.
2 Definition
This section defines pre-deployment test as a drug or alcohol test for paragraph 99.050 (2) (a) of CASR 1998. A Note explains that paragraph 99.050 (2) (a) of CASR 1998 concerns drug and alcohol testing when a regular SSAA employee first joins a DAMP organisation, or when an employee’s role is to change to that of a regular SSAA employee.
3 Application
Under this section, the instrument applies to each DAMP organisation. Regulation 99.010 of CASR 1998 defines a DAMP organisation to be a person that is required to have a DAMP under subregulation 99.030 (1).
4 First exemption — DAMP information requirements
Under this section, each DAMP organisation is exempt from compliance with paragraph 99.100 (1) (e) of CASR 1998, to the extent mentioned in Schedule 1. A Note explains that paragraph 99.100 (1) (e) of CASR 1998 would otherwise require a DAMP organisation to provide CASA with the date and time that drug and alcohol tests were conducted under the DAMP.
5 Conditions — DAMP information requirements
Under this section , the exemption in section 4 is subject to the conditions mentioned in Schedule 2.
6 Second exemption — pre- hiring tests
Under this section, each DAMP organisation is exempt from compliance with paragraph 99.050 (2) (a) of CASR 1998 for a person who will be working as a regular SSAA employee, to the extent mentioned in Schedule 3. A Note explains that paragraph 99.050 (2) (a) of CASR 1998 would otherwise require a DAMP organisation to drug and alcohol test a person after he or she had first joined the organisation as a regular SSAA employee.
7 Conditions — pre-hiring tests
Under this section, the exemption in section 6 is subject to the conditions mentioned in Schedule 4.
Schedule 1 Extent of exemption — DAMP information requirements
This Schedule explains the extent of the operation of the exemption in section 4. Under this clause, the exemption only applies in relation to providing CASA with the date and time of pre-deployment tests. Other DAMP tests are not exempted.
Schedule 2 Conditions — DAMP information requirements
This Schedule contains conditions on the exemption in section 4.
1Under this clause, as soon as practicable after a person undergoes a pre‑deployment test under a DAMP, the DAMP organisation must make a record of the person’s name and the date and time the test was conducted.
2Under this clause, the DAMP organisation must keep the record mentioned in clause 1 for a period of 5 years after the record was made.
3Under this clause, within 6 months after the end of the 5 year period mentioned in clause 2, the organisation must destroy or delete the record or the parts of the record that relate to the results of the pre-deployment testing.
Schedule 3 Extent of exemption — pre-hiring tests
This Schedule explains the extent of the operation of the exemption in section 6. The exemption applies only if, within the 90 days before the person is required to begin performing or be available to perform an applicable SSAA, the person has been drug and alcohol tested by that or another DAMP organisation and each of the test results was not a positive result.
Schedule 4 Conditions — pre-hiring tests
This Schedule contains conditions on the exemption in section 6.
The drug and alcohol test by the DAMP organisation must have been conducted in accordance with the requirements mentioned in paragraph 99.050 (1) (a) of CASR 1998. For drug testing, the test must meet the requirements of each DAMP organisation relying on the exemption.
A Note explains, by way of example, that if a particular DAMP requires a urine test, an oral test under another DAMP would not suffice.
Finally, the test must be recorded and reported under Subpart 99.B of CASR 1998 (including as affected by section 4 of the exemption instrument) as if it were a drug and alcohol test of a person who had first joined the organisation.