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CASA EX102/18 Exemptions as made
This instrument exempts certain pilot licence applicants and pilot licence holders from the requirement to complete an approved course of training in multi-crew cooperation (MCC), subject to conditions that require a similar level of competence as would otherwise be provided by an approved course of training in MCC.
Administered by: Infrastructure, Transport, Regional Development and Communications
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s12 item 15
Registered 30 Aug 2018
Tabling HistoryDate
Tabled HR10-Sep-2018
Tabled Senate10-Sep-2018
To be repealed 31 Aug 2021
Repealed by Self Repealing

Explanatory Statement

Civil Aviation Safety Regulations 1998

CASA EX102/18 — Approved Course of Training (Multi‑crew Cooperation) Exemption 2018

 

Purpose

This legislative instrument is a renewal of CASA EX225/15, which exempted certain pilot licence applicants and pilot licence holders from the requirement to complete an approved course of training in multi-crew cooperation (MCC) for the purposes of multi-crew operations. Various conditions are imposed which, in effect, require a similar level of competence as would otherwise be provided by an approved course of training in MCC.

 

The opportunity has also been taken to make some minor improvements to the instrument.

 

Legislation — Part 61 of CASR

Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and for the safety of air navigation. The Civil Aviation Safety Regulations 1998 (CASR) were so made. Part 61 of CASR, which commenced on 1 September 2014, sets out flight crew licensing requirements.

 

Under subparagraph 61.285 (f) (ii) of CASR, a member or former member of the Australian Defence Force (ADF) is taken to meet the requirements under Part 61 of CASR for the grant of an air transport pilot licence (ATPL) if the member completes, among other things, an approved course of training in MCC.

 

Under paragraph 61.700 (3) (e) of CASR, a (non-ADF) applicant for an ATPL must have completed, among other things, an approved course of training in MCC.

 

Under subregulation 61.510 (1) of CASR, the holder of a private pilot licence (PPL) is authorised to exercise the privileges of the licence in a multi-crew operation only if the holder has completed an approved course of training in MCC.

 

Under subregulation 61.575 (1) of CASR, the holder of a commercial pilot licence (CPL) is authorised to exercise the privileges of the licence in a multi-crew operation only if the holder has completed an approved course of training in MCC.

 

Under paragraph 61.785 (1) (b) of CASR, the holder of a single-pilot (SP) type rating who does not hold a multi-crew type rating is authorised to exercise the privileges of the rating in a multi-crew operation only if the holder has completed an approved course of training in MCC.

 

Under regulation 61.010, an approved course of training, for a provision of Part 61 of CASR, means, among other things, a course of training for which the provider holds an approval under regulation 61.040 for the provision.

 

Legislation — exemptions

Subpart 11.F of CASR deals with exemptions. Under subregulation 11.160 (1), and for subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from a provision of CASR in relation to a matter mentioned in subsection 98 (5A). Subsection 98 (5A) matters are those affecting the safe navigation and operation, maintenance, airworthiness or design of aircraft.

 

Under subregulation 11.160 (2), an exemption may be granted to a person or a class of persons. Under subregulation 11.160 (3), CASA may grant an exemption on application, or on its own initiative. For an application for the grant or renewal of an exemption, CASA must regard as paramount the preservation of at least an acceptable level of safety. CASA has regard to the same consideration when deciding to grant or renew an exemption on its own initiative.

 

Under regulation 11.205, CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation. Under regulation 11.210, it is a strict liability offence not to comply with an obligation imposed by a condition. Under regulation 11.225, CASA must publish details of an exemption on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.

 

Background

Pilots wishing to conduct a multi-crew operation, or apply for an ATPL, are required to have completed an approved course of training in MCC. Training in MCC is Part 142 flight training delivered by Part 142 operators. It involves the acquisition of competency in human factors and non-technical skills (HF&NTS) which enhances the safety of multi-crew operations in which pilots must work together with high levels of mutual cooperation.

 

Under Part 61 of CASR, all applicants for ATPLs (other than overseas conversions) must have completed an approved course of training in MCC.

 

Similarly, from 1 September 2015, all holders of PPLs and CPLs who are conducting multi-crew operations must have completed an approved course of training in MCC.

 

For transition purposes, PPL and CPL holders have not been required to complete MCC training if they had, prior to 1 September 2015, conducted a multi-crew operation.

 

From 1 September 2015, the holder of an SP type rating, who does not hold a multi‑crew type rating, must have completed an approved course of training in MCC if the holder is to exercise the privileges of the rating in a multi-crew operation.

 

There is, as yet, no provision in Part 61 of CASR for any alternative means of compliance (AMC) with the existing MCC requirement, for example equivalent courses of training or experience. CASA considers that relevant applicants and pilots who comply with an AMC that delivers at least the same level of competence in MCC, should be exempt from having to complete an MCC training course under Part 61 of CASR. Part 61 of CASR will be amended in due course to reflect this intent.

 

The exemptions

To expedite the availability of effective AMC pending development of regulation amendments, CASA issued exemptions (CASA EX192/15 and CASA EX225/15) from the existing MCC training requirements, subject to conditions that require relevant applicants and pilots to possess comparable training or experience. This instrument continues the exemptions in CASA EX225/15.

 

Conditions

ADF ATPL applicants

The alternative requirements for ADF applicants for an ATPL are that the applicant must have successfully completed a course of training conducted by the ADF for a multi-crew pilot operational conversion qualification. Compliance with this must be evidenced by giving CASA a copy of the relevant ADF qualification.

 

Multi-crew pilot licence (MPL) to ATPL

A similar condition is not required for MPL to ATPL applicants as MCC training is embedded in the MPL training course.

 

ATPL – other applicants – CPL

The holder of a CPL with an aircraft category rating, who applies for the grant of an ATPL, is also exempt from the requirement under paragraph 61.700 (3) (e) of CASR to complete an approved course of training in MCC. Such applicants must meet the alternative requirements mentioned below.

 

ATPL applicants without an MPL or ADF qualification, CPL and PPL holders, and holders of an SP type rating without a multi-crew type rating

The alternative requirements for ATPL applicants without an MPL or ADF qualification, CPL and PPL holders, and holders of an SP type rating without a multi-crew type rating are set out in Schedule 1 of the exemption instrument. Thus, each of the following would be considered by CASA to be an AMC:

(1)     MCC training approved by the European Aviation Safety Agency (EASA);

(2)     the training required to qualify for an EASA type rating for a multi-crew certificated aircraft;

(3)     both:

(a)   holding a type rating; and

(b)   having at least 50 hours’ experience as a pilot in multi-crew operations conducted by an Australian air operator’s certificate (AOC) holder engaged in regular public transport (RPT) operations in accordance with Civil Aviation Order (CAO) 82.3 or 82.5, being experience gained during the last 3 years — CAOs 82.3 and 82.5 impose pilot HF&NTS training obligations on relevant high capacity and low capacity RPT AOC holders through their mandatory HF&NTS programs;

(4)     the following:

(a)   holding a type rating; and

(b)   having at least 100 hours’ experience as a pilot in multi-crew operations conducted by an Australian AOC holder engaged in charter operations in accordance with CAO 82.1, being experience gained during the last 3 years; and

(c)   successful completion, within the last 3 years, of 2 operator proficiency checks which included assessment of HF&NTS competencies — although CAO 82.1 for charter operations does not impose pilot HF&NTS training obligations on the AOC holder, the relevant operator proficiency checks constitute a component of this AMC and a Note explains that the assessment of HF&NTS competencies should be guided by reference to Civil Aviation Advisory Publication (CAAP) SMS-3 (1), which is also the HF&NTS guidance document for RPT operations;

        (5)     training, qualifications or experience, or a combination of these, which CASA has approved to be at least equivalent to any of the alternative requirements mentioned in items (1) to (4). It is important to note that CASA, not the applicant, the holder or the head of flying operations, makes the decision about equivalence, based on the evidence it receives and its assessment of the requirements of aviation safety. A person who relies on this must obtain the appropriate certificate from CASA — see below.

The expression “last 3 years” is defined in the instrument and means the 3 years immediately before:

(a)   in the case of an applicant for an ATPL — the date of the application; and

(b)   in any other case — the first flight for which a pilot relies upon this exemption instrument (meaning CASA EX192/15, CASA EX225/15 or this instrument) for non-compliance with a requirement in Part 61 of CASR to have completed an approved course of training in MCC.

 

Evidence of compliance

For pilots required to comply with an AMC in Schedule 1, the exemption instrument requires specific evidence of compliance with the AMC. These evidence requirements and additional conditions are specified in Schedule 2 of the exemption instrument. Thus, the following applies:

        (1)     For the AMC in item (1) of Schedule 1:

(a)   a copy of a course completion certificate issued by the EASA-approved trainer; and

(b)   a copy of the EASA approval held by the trainer that shows the approval is valid and current.

        (2)     For the AMC in item (2) of Schedule 1:

(a)   a copy of the person’s current EASA flight crew licence endorsed with the multi-crew type rating for a multi-crew certificated aircraft; and

(b)   logbook evidence of the person having exercised the privileges of the rating following the grant of the rating.

        (3)     For the AMC in item (3) of Schedule 1:

(a)   a copy of the person’s current CASA flight crew licence endorsed with a multi-crew type rating; and

(b)   logbook evidence of the person’s experience as a pilot in multi-crew operations for an Australian AOC holder engaged in RPT operations in accordance with CAO 82.3 or 82.5, being experience gained in the last 3 years.

        (4)     For the AMC in item (4) of Schedule 1:

(a)   a copy of the person’s current CASA flight crew licence endorsed with a multi-crew type rating; and

(b)   logbook evidence of the person having at least 100 hours’ experience as a pilot in multi-crew operations for an Australian AOC holder engaged in charter operations in accordance with CAO 82.1, being experience gained in the last 3 years; and

(c)   evidence of the successful completion, within the last 3 years, of 2 operator proficiency checks which included assessment of HF&NTS competencies.

        (5)     For the AMC in item (5) of Schedule 1:

(a)   evidence of successful completion of training, qualifications or experience, or a combination of these; and

(b)   a CASA certificate of equivalence — this is a defined expression meaning a certificate, issued by CASA, stating that, for item (5) of Schedule 1 of the exemption instrument (meaning CASA EX192/15, CASA EX225/15 or this instrument), a person’s successful completion of alternative training, or acquisition of qualifications, or possession of experience, or a combination of these, is approved to be at least equivalent to an AMC mentioned in items (1) to (4) of Schedule 1.

        (6)     For each of the AMCs in items (1) to (5) of Schedule 1, evidence in logbooks or other documents, of the following:

(a)   the exercise of relevant privileges; and

(b)   the acquisition of experience as a pilot in multi-crew operations; and

(c)   the successful completion of operator proficiency checks; and

(d)   the successful completion of equivalent training, qualifications and experience;

                 must be endorsed by:

(e)   the head (however described) of the flying operations part of the relevant AOC holder or other operator (for example, a private operator of a corporate jet), to whom the logbook entries or other documents relate; or

(f)    the head (however described) of training and checking of the relevant AOC holder or other operator, to whom the logbook entries or other documents relate; or

(g)   the holder of a flight examiner rating.

        (7)     For each of the AMCs in items (1) to (5) of Schedule 1, the evidence must be supplied:

(a)   in the case of an applicant for an ATPL — to CASA; and

(b)   in the case of the holder of a PPL, a CPL, or an SP type rating without a multi-crew type rating (as the case may be) conducting multi-crew operations — to the head (however described) of the flying operations part of the AOC holder or other operator for whom the pilot operates a multi‑crew aircraft. (A person who relies on item (5) in Schedule 1 must first obtain from CASA, and supply to the head, the appropriate CASA certificate of equivalence — see above.)

        (8)     For each of the AMCs in items (1) to (5) of Schedule 1, an applicant or a holder must, on written request, supply CASA with any information or documents CASA considers necessary to determine the appropriate application, or the continued application, of the exemption to the applicant or holder. A Note explains that, for example, in the interests of aviation safety, CASA may require proof of authenticity of copies of documents.

 

The instrument differs from CASA EX225/15 to:

·         clarify that the provisions relating to holders of an SP type rating only apply to those who do not also hold a multi-crew type rating; and

·         remove references to obsolete transitional provisions of CASR that expire at the end of 31 August 2018; and

·         recognise CASA certificates of equivalence issued under the previous exemption instruments on this subject (CASA EX192/15 and CASA EX225/15); and

·         remove definitions of terms defined in the Act and CASR that already apply to the instrument because of paragraph 13 (1) (b) of the Legislation Act 2003 (the LA); and

·         conform to current instrument naming standards.

 

Incorporation by reference

Subsection 98 (5D) of the Act provides that a legislative instrument made under the Act or the regulations may apply, adopt or incorporate any matter contained in any instrument or other writing as in force or existing from time to time, even if the other instrument or writing does not yet exist when the legislative instrument is made.

 

In accordance with subsection 98 (5D) of the Act, this instruments refers to CAAP SMS-3 (1) as existing from time to time. CAAP SMS-3 (1) provides guidance and advice for Australian regular public transport operators to develop training and assessment in non-technical skills. It is freely available on the CASA website at: https://www.casa.gov.au/rules-and-regulations/standard-page/civil-aviation-advisory-publications.

 

Renewal of CASA EX225/15 and expected amendments to CASR

The exemption is expressed to commence on 1 September 2018, which is immediately after the repeal of the previous exemption on this topic, CASA EX225/15.

 

The exemption is expressed to operate until it is repealed at the end of 31 August 2021. However, the exemption is an interim measure, pending substantive amendments to Part 61 of CASR which will remove the need for the exemption. These amendments will be part of a larger set of amendments to Part 61 of CASR for which CASA has provided drafting instructions to the Office of Parliamentary Counsel (OPC). It is expected that, subject to the capacity of OPC to produce them in the context of competing priorities arising from government drafting demands, the amendments will be made and in force within the next 12 months to 2 years.

 

Legislation Act 2003

As noted above, exemptions under Subpart 11.F of CASR are “for subsection 98 (5A)” of the Act, that is, for regulations which empower the issue of certain instruments, like exemptions, in relation to “(a) matters affecting the safe navigation and operation, or the maintenance, of aircraft”, and “(b) the airworthiness of, or design standards for, aircraft”.

 

Under subsection 98 (5AA) of the Act, an exemption issued under paragraph 98 (5A) (a), for such matters, is a legislative instrument if expressed to apply in relation to a class of persons, a class of aircraft or a class of aeronautical products (as distinct from a particular person, aircraft or product).

 

The exemption applies to classes of persons (the relevant ATPL applicants, and PPL, CPL and SP type rating holders) and is, therefore, a legislative instrument subject to registration, and tabling and disallowance in the Parliament, under sections 24, 38 and 42 of the LA.

 

Consultation

Informal feedback was received from the aviation community that the MCC training requirement in Part 61 of CASR could be unnecessary in some cases where pilots may have completed equivalent training or have suitable qualifications.

 

In response to this, for section 17 of the LA, CASA conducted consultation on a possible regulation amendment and an interim exemption, through the Flight Crew Licensing Subcommittee of the Standards Consultative Committee (a formal joint CASA/industry consultation forum). Details of the proposal were also posted on the CASA website on 2 July 2015 for public comment and 4 considered responses were received. None of the responses opposed the proposed measure. However, one counselled caution in relation to unintended consequences.

 

All of the comments were taken into account before CASA decided to issue the first exemption instrument on this subject (CASA EX192/15). The exemption is an optional avenue for ATPL applicants, and PPL, CPL and SP type rating holders, who are not prevented from completing an approved training course in MCC if, for example, they had concerns that their particular compliance with the AMC would not in the event be adequate to satisfy a flight examiner in a flight test, or if, in any particular case, an AOC holder or private operator required of a pilot the additional assurance of MCC course completion.

CASA has not received any adverse feedback from industry that the exemption and the conditions on the exemption are not appropriate. 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 LA.

 

Office of Best Practice Regulation (OBPR)

A Regulation Impact Statement (RIS) is not required because the exemption instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for an exemption (OBPR id: 14507).

 

Statement of Compatibility with Human Rights

The Statement in Attachment 1 is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

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.

 

The instrument commences on 1 September 2018 and ceases when it is repealed at the end of 31 August 2021.

Attachment 1

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011

Civil Aviation Safety Regulations 1998

CASA EX102/18 — Approved Course of Training (Multi‑crew Cooperation) Exemption 2018

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

This legislative instrument exempts certain pilot licence applicants and pilot licence holders from the requirement to complete an approved course of training in multi-crew cooperation (MCC) for the purposes of multi‑crew operations. Various conditions are imposed which, in effect, require a similar level of competence as would otherwise be provided by an approved course of training in MCC.

 

The exemption is a beneficial instrument for those to whom it applies who comply with its terms. It provides alternative means of obtaining, and being able to exercise the privileges of, certain pilot licences.

 

The instrument renews CASA EX225/15, which was on the same topic. The opportunity has been taken to make some other minor improvements to the instrument.

 

Human rights implications

The legislative instrument engages the right to work (Article 6 (1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR)).

 

The right to work in Article 6 (1) of ICESR includes the right of everyone to the opportunity to gain their living by work which they freely choose or accept. The right to work is engaged by the exemption from the requirement to complete an approved course of training for applicants for, and holders of, an air transport pilot licence (ATPL) or commercial pilot licence (CPL). It increases the opportunity for these pilots to obtain an ATPL, and exercise the privileges of an ATPL or CPL, and therefore increases their opportunity to work as a pilot. The exemption, therefore, promotes the right to work of the affected pilots.

 

The instrument does not engage any of the other human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Conclusion

This legislative instrument is compatible with human rights as, to the extent that it raises any human rights issues, it promotes those rights.

 

Civil Aviation Safety Authority