CASA EX99/10 – Continuation of trial exemption – for DAMP organisations using DAMP contractors who are also DAMP organisations

Explanatory Statement

Civil Aviation Safety Regulations 1998

Continuation of trial exemption — for DAMP organisations using DAMP contractors who are also DAMP organisations

Purpose

The purpose of this instrument is to continue in modified form a temporary trial of certain drug and alcohol management programs.

The instrument exempts a small number of named organisations required to have drug and alcohol management plans (DAMPs) under Subpart 99.B of the Civil Aviation Safety Regulations 1998 (DAMP organisations) from a direct responsibility that they would otherwise have for drug and alcohol management of the employees of other organisations who are contracting with the DAMP organisations (DAMP contractors). The exemption only applies provided those other organisations are themselves DAMP organisations in their own right, discharging their responsibility for the drug and alcohol management of their employees.

In certain circumstances, on the grounds of urgency or convenience, the DAMP contractor may discharge its drug and alcohol testing and related responsibilities for its employees through the agency of the DAMP organisation for whom, and at whose premises, the relevant contract is performed.

These arrangements will avoid the risk that some employees of DAMP contractors would otherwise be subject simultaneously to 2 or even more drug and alcohol management programs, namely, that of their real employer (the corresponding DAMP contractor), and that of the person (or persons) for whom they are actually doing work (the primary DAMP organisation).

CASA takes the view that such an outcome was not intended by Subpart 99.B of the Civil Aviation Safety Regulations 1998 (CASR 1998) but until Subpart 99.B is suitably amended the exemption will provide a practical testing environment for the concept, and temporary solution of the problem. A series of conditions in the exemption will also offer a level of assurance, including for primary DAMP organisations and their insurers, that drug and alcohol management obligations are being met.

A number of larger DAMP organisations will participate in the continuing, but modified trial, now extended to 31 March 2011.

Legislation — exemptions

Under subregulation 11.160 (1) of CASR 1998, CASA may grant an exemption from compliance with a provision of CASR 1998. Under subregulation 11.160 (3), 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, 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 2 years after its commencement), or if no day is specified, 2 years after commencement.

Legislation — drug and alcohol management

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 applicable safety sensitive aviation activities (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 Amendment Regulations 2008 (No. 1) commenced on 23 September 2008. It amended CASR 1998 by inserting a new Part 99, Drug and alcohol management plans and testing (CASR Part 99).

The purpose of CASR Part 99 was 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 who perform applicable SSAA (SSAA employees) and is on a generic list of organisations defined in subregulation 99.030 (2), for example, AOC holders, maintenance organisations, aerodrome operators, air traffic service providers etc. Applicable SSAA are defined in subregulation 99.015 (2), and include activities on the “airside” of an aerodrome (i.e. the tarmac and related areas), as well as flight crew duties, maintenance, aircraft refuelling, security, baggage handling, air traffic control etc.

Under the definitions in regulation 99.010 (1) of CASR 1998, a DAMP means a plan that complies, or purports to comply, with the requirements of regulation 99.045.

Drug and alcohol testing obligations under DAMPs

Under paragraph 99.045 (a) of CASR 1998, a DAMP organisation’s DAMP must apply to all applicable SSAA employees of the organisation (and employees is defined to include people working under a contract for services).

Under paragraph 99.045 (b) of CASR 1998, a DAMP must include a drug and alcohol education program (DAEP), a drug and alcohol testing program and a drug and alcohol response program (for example, in relation to rehabilitation).

Under paragraph 99.055 (b) of CASR 1998, assuming test conditions exist, drug and alcohol testing of a DAMP organisation’s applicable SSAA employees must be carried out under its DAMP if there is an accident or serious incident involving the employee while he or she is performing, or available to perform, SSAA (post-accident testing).

Similarly, under paragraph 99.055 (c) of CASR 1998, drug and alcohol testing of a DAMP organisation’s SSAA employee must be carried out under its DAMP if a DAMP supervisor has reasonable grounds to believe that a SSAA employee may be adversely affected by a testable drug or by alcohol while he or she is performing or available to perform SSAA (reasonable grounds testing).

Under regulation 99.055 of CASR 1998, a DAMP organisation’s DAMP must include a requirement to consult a DAMP medical review officer to determine if the positive presence and level of a testable drug, confirmed by confirmatory testing, could be the result of legitimate therapeutic treatment or some other innocuous source (a medical review). In addition, the DAMP must have a requirement to consult a DAMP medical review officer (MRO) to review medical information concerning a person’s failure to give a body sample for drug or alcohol testing because of a medical condition (also a medical review).

Under subregulation 99.065 (1) of CASR 1998, a DAMP organisation’s DAMP must include a requirement that the organisation not permit an employee to perform SSAA if the employee has returned a positive result for a drug or alcohol test that has not been discounted through confirmatory testing.

Equally, under subregulation 99.065 (2) of CASR 1998, a DAMP organisation’s DAMP must include a requirement that the organisation not permit an employee to perform SSAA if the employee is under reasonable suspicion of drug or alcohol impairment, or has been involved in an accident or serious incident and a test has not been conducted or has not yet produced test results.

DAMP contractors

Under subregulation 99.010 (1) of CASR 1998, an employee of a DAMP organisation includes a DAMP contractor of the organisation. Under subregulation 99.010 (1), a DAMP contractor means a person, or the employee of a person, who is a contractor to the DAMP organisation, or a subcontractor (or sub-subcontractor etc.) to the contractor (or subcontractor). A DAMP contractor may itself be a DAMP organisation.

The problem with DAMP contractors

There are a significant number of DAMP organisations which are also DAMP contractors in the sense that they perform services in the form of SSAA for other DAMP organisations.

The consequence is that some employees would be subject to 2 or more separate DAMPs, involving some mandatory duplication of procedures and obligations that arise under a DAMP.

Exemption

To avoid this, CASA has previously exempted DAMP organisations from applying their DAMPs to DAMP contractors who are DAMP organisations in their own right. This provided a level of assurance, including for these DAMP organisations and their insurers (CASA EX29/10). Following continued consultation with relevant participants in the existing trial, CASA decided to slightly modify the exemption and extend the modified trial to 31 March 2011.

The first modification

The modifications were two-fold. First, one of the conditions in the previous exemption provided that for post-accident testing and suspicion testing of the DAMP contractor’s employee, only the primary DAMP organisation could test (as the DAMP contractor’s agent). This was to ensure that expeditious testing of employees in such circumstances could occur almost immediately, being conducted by the available DAMP organisation for whom they were actually performing duties.

This arrangement has been broadened so that either the DAMP contractor or the primary DAMP organisation as the DAMP contractor’s agent, may conduct the test. Testing must still be expeditious. However, the modification adds some flexibility because it is also likely that, in practice, both organisations will be using appropriately qualified third party testers, sometimes the same testing organisation, so that satisfying the need for expeditious testing should no longer be an issue.

The second modification

The second modification is to the terms of the DAMP self-assessment that must be completed by the contracting DAMP organisation and given to the primary DAMP organisation (and from it to CASA) as a form of information and assurance about the contracting DAMP organisation’s drug and alcohol management and testing standards.

For consistency, completion of the entire questionnaire (and hence compliance with the training and testing standards mentioned in it) is required, regardless of organisation size. Previously, some of the matters mentioned in the questionnaire, going, for example, to the sophistication of training and awareness methods, were dependent on the size of the contracting DAMP organisation. This is no longer the case (see Attachment 2).

Other conditions

The other previous conditions remain largely unchanged. They are designed to ensure that checks are made on the status and compliance of the DAMP contractor.

Details of exemption instrument

The details of the exemption, including the conditions, are set out in Attachment 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

Consultation under section 17 of the LIA was originally undertaken with the DAMP organisations who had agreed to participate in the trial and act as a CASA/industry advisory group for the trial. Further consultation occurred with representatives of a number of these organisations in relation to modifying the exemption.

Office of Best Practice Regulation (OBPR)

The exemption is of beneficial effect. 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 the day after it is registered and stops having effect at the end of 31 March 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 EX99/10]

ATTACHMENT 1

Continuation of trial exemption — for DAMP organisations with DAMP contractors who are also DAMP organisations

1 Duration

 Under this section, for the purposes of the trial the instrument commences on the day after it is registered and stops having effect at the end of 31March 2011.

 A Note explains that the exemption is for continuation of a selective CASA/industry trial of certain drug and alcohol management arrangements. The trial will be assessed before further decisions are taken. The continued duration of the instrument allows flexibility for this to occur.

2 Revocation

 Under this section, the previous instrument, CASA EX29/10, is revoked.

3 Application

 (1)Under this subsection, the instrument applies for the CASA trial.

 (2)Under this subsection, the instrument applies to each DAMP organisation mentioned in an item in Schedule 1 (primary DAMP organisation), for its corresponding DAMP contractor mentioned in the same item (corresponding DAMP contractor).

 A Note explains that a DAMP contractor is defined in subregulation 99.010 (1) of CASR 1998 and includes a DAMP subcontractor. The DAMP contractors mentioned in the instrument are also DAMP organisations in their own right.

4 Exemption

 Under this section, each primary DAMP organisation is exempt from each provision of Subpart 99.B of CASR 1998 mentioned in Schedule 2, to the extent mentioned in Schedule 3.

5 Conditions

 Under this section, the exemption is subject to the conditions mentioned in Schedule 4.

Schedule 1 Primary DAMP organisations to which the exemption applies for corresponding DAMP contractors

This Schedule sets out the names of the trial participants. The primary DAMP organisations have the benefit of the exemption, but subject to compliance with the conditions in Schedule 4.

Schedule 2 Provisions of Subpart 99.B of CASR 1998

This Schedule sets out the provisions of Subpart 99.B of CASR 1998 from which the primary DAMP organisations are exempt.

The provisions are those which would otherwise impose on the primary DAMP organisations responsibility for drug and alcohol education, drug and alcohol testing, and drug and alcohol response and rehabilitation (if required) of the DAMP contractors relevant employees.

Schedule 3 Extent of exemption

This Schedule sets out the extent of the operation of the exemption enjoyed by primary DAMP organisations, namely, to the extent that each provision mentioned in Schedule 2 would otherwise require or enable the primary DAMP organisation’s DAMP to apply to the corresponding DAMP contractor.

Schedule 4 Conditions to be met for exemption to apply

This Schedule sets out the conditions that must be complied with for the exemption to apply. The conditions have a degree of mutuality in that the corresponding DAMP contractor must cooperate strongly with the primary DAMP organisation in order for the primary DAMP organisation to enjoy the exemption, and thereby enable the corresponding DAMP contractor to manage its own employees under its own DAMP.

 1Under this condition, each corresponding DAMP contractor must have a DAMP and a written self-assessment of the DAMP completed in accordance with CASA’s required self-assessment in Schedule 5 (Schedule 5 is contained in Attachment 2).

 2The primary DAMP organisation must have a copy of the corresponding DAMP contractor’s DAMP and the completed DAMP self-assessment. On the basis of these documents the primary DAMP organisation must notify CASA in writing that it is satisfied that its corresponding DAMP contractor is a DAMP organisation with a self-assessed DAMP, and include with the notification a copy of the corresponding DAMP contractor’s self-assessment.

 3When the corresponding DAMP contractor, or its employee, performs, or is available to perform, an applicable safety sensitive aviation activity (SSAA) for the primary DAMP organisation, the primary DAMP organisation must ensure that the corresponding DAMP contractor, OR the primary DAMP organisation as its appointed agent, takes expeditious action towards the DAMP contractor or the employee for the following provisions of CASR 1998:

(a) paragraphs 99.050 (2) (b) and (c);

(b) regulation 99.055;

(c) regulation 99.065;

(d) paragraph 99.125 (2) (b).

A Note explains that the provisions relate to post-accident testing and suspicion testing of the DAMP contractor’s employee, and requiring cessation of his or her work etc., when performing the primary DAMP organisation’s SSAA. But for the exemption, such post-accident testing and suspicion testing etc. would be the legal responsibility of both the DAMP organisation and the DAMP contractor.

A second Note explains that although the primary DAMP organisation is by this instrument exempt from its DAMP obligations towards the employee, it is a condition that where the corresponding DAMP contractor does not take urgent and immediate action under its DAMP to test etc. the employee, the primary DAMP organisation must do so as its appointed agent.

A third Note explains that it is expected that the primary DAMP organisation will protect its position by having in place a written arrangement with the corresponding DAMP contractor under which the corresponding DAMP contractor is to take urgent and immediate action itself or through its testing agents to conduct the relevant tests etc., or alternatively, under which, the primary DAMP organisation, as its agent, is to take urgent and immediate action itself or through its testers to conduct the relevant tests.

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ATTACHMENT 2

DAMP self-assessment for corresponding DAMP contractors (see Schedule 1)