Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — use of pre-hiring drug and alcohol tests
Purpose
This legislative instrument will permit organisations that are required to have a drug and alcohol management plan (DAMP) to use pre-hiring drug and alcohol tests to comply with the requirement to test newly-hired employees. In the absence of this instrument, in order to comply with that requirement, the drug and alcohol test conducted on a person who was still an applicant would have to be repeated after the applicant was formally appointed. The instrument replaces instrument CASA EX25/13, a similar exemption on the same subject, which expired at the end of February 2016.
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 a safety-sensitive aviation activity (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 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 in the circumstances set out in subregulation 99.050 (2).
The SSAA employees who must be tested by a DAMP organisation as part of its DAMP include persons who join the organisation to perform SSAA, and employees who change duties to commence performing SSAA. Under paragraph 99.050 (2) (a) of CASR 1998, such persons must be drug and alcohol tested unless, within 90 days before commencing to perform the SSAA, the employee 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.
Power to grant exemptions
Subregulation 11.160 (1) of CASR 1998 provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of CASR 1998, the Civil Aviation Regulations 1988 or the Civil Aviation Orders in relation to a matter mentioned in that subsection.
Under subregulation 11.160 (2) of CASR 1998, 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 11.210 of CASR 1998, it is an offence not to comply with a condition of an exemption.
Under regulation 11.225 of CASR 1998, an exemption must be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
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, 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 the effect of ensuring that pre-hiring testing will satisfy the DAMP requirement for employee testing.
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) drug and alcohol test conducted by a DAMP organisation.
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 retest 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.
Exemption — conditions
The exemption is subject to certain conditions. In particular, 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.
In addition, the drug and alcohol test by the DAMP organisation must be recorded and reported under Subpart 99.B of CASR 1998, as if it were a drug and alcohol test of a person who had first joined the organisation. The recording and reporting requirements under Subpart 99.B of CASR 1998 are affected by other instruments of exemption, CASA EX39/15 and CASA EX98/15.
Legislative Instruments Act 2003 (the LIA)
Under section 5 of the LIA, subject to sections 6, 7 and 9 of the LIA, a legislative instrument is an instrument in writing that is of legislative character, and that is or was made in the exercise of a power delegated by the Parliament.
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the regulations. An instrument issued under paragraph 98 (5A) (a) of the Act is a legislative instrument if the instrument is expressed to apply to a class of persons or aircraft. The instrument applies to a class of persons, namely, DAMP organisations, and is, therefore, a legislative instrument.
As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
At the time of making of instrument CASA EX25/13, 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.
The legislative instrument replaces instrument CASA EX25/13, a similar exemption on the same subject, which expired at the end of February 2016. It is expected that the instrument will not have a negative impact on aviation safety. 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 for exemptions (OBPR id: 14507).
Making and commencement
The instrument has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.
The instrument commences on 1 March 2016 and expires at the end of February 2019, as if it had been repealed by another instrument.
[Instrument number CASA EX42/16]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — use of pre-hiring drug and alcohol tests
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 will permit organisations that are required to have a drug and alcohol management plan to use pre-hiring drug and alcohol tests to comply with the requirement to test newly-hired employees. Otherwise, to comply with that requirement, a drug and alcohol test conducted on a person who was still an applicant would have to be repeated after the applicant was formally appointed. The legislative instrument replaces instrument CASA EX25/13, a similar exemption on the same subject, which expired at the end of February 2016.
The exemption is subject to conditions. The exemption is of beneficial effect to those to whom it applies by relieving them of obligations they would otherwise have to meet.
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