45TH ANNUAL CONFERENCE, Kaohsiung, Taiwan, 27-31 March 2006
WP No. 163
Review Policy on Use of Unqualified Personnel
Presented by PLC
1.1 At the 44th Annual IFATCA conference in Melbourne, the item of “Review Policy on Use of Unqualified Personnel” was placed on the PLC work program.
1.2 IFATCA already has policy on the use of unqualified personnel and this will be examined and compared with ICAO standards. Recent use of unqualified personnel will be discussed, and any required amendments to IFATCA policy proposed.
2.1 IFATCA has existing policy concerning the use of Unqualified Personnel: Page 4342; section 4.2 Validity of Controller Licence, paragraph 4.2.1:
|“All air traffic controllers must be licensed”.|
Paragraph 4.3.1, (reproduced on Page 4411; section 1.3 Disputes, paragraph 1.3.2):
|“For the purpose of guaranteeing safety, controllers shall not be replaced by personnel who do not hold ATC licenses in accordance with ICAO Annex 1, with the ratings, recency and competency appropriate to the duties that they are expected to undertake.”|
|“The functions which are contained within ICAO Annex 1, as being ATC functions shall not be added to the work responsibilities for unlicensed personnel.”|
Paragraph 4.3.3, (reproduced on Page 4413; section 1.2 Liability, paragraph 1.2.9.):
|“In the event of an incident, caused totally or in part by the use of unqualified personnel, responsibility must lie with the person or authority responsible for allocating the unqualified staff to the task undertaken.”|
2.2 This policy, reiterated in the Liability and Disputes section, is quite clear and unambiguous; IFATCA is wholly opposed to the use of unqualified personnel in any form of ATC operations, and asserts that any legal liability arising from the use of unqualified personnel must rest with whoever orders or authorizes the use of such personnel.
2.3 ICAO Annex 1 details the standards and recommended practices for Personnel Licensing, in Chapter 4, section 4.3, Air Traffic Controller Licence. This section details the training, experience, skills, knowledge, medical standards and validity of ATC licences and ratings. The opening paragraph of this section, 4.3.1 states:
“Before issuing an air traffic controller licence, a Contracting State shall require the applicant to meet the requirements of 4.3.1 and the requirements of at least one of the ratings set out in 4.4. Unlicensed State employees may operate as air traffic controllers on condition that they meet the same requirements.”
2.4 Whilst on first reading this may seem to condone the use of unqualified personnel in ATC operations, this exception is explicit that it only applies to “State employees” and requires that such personnel must still meet all the same training, experience, skills, knowledge, medical standards and validity requirements as apply for the issue of an ATC licence to any other person. So in essence, this apparent exception is only an administrative matter concerning employee status, and not in any way an abrogation of the spirit or intent of ICAO ATC licensing standards. Thus it may be fairly summarized that ICAO does require all ATCOs to be appropriately licensed, as does not condone the use of “unqualified personnel” as the definition of this term is used in IFATCA policy.
2.5 In contemporary terms, unqualified personnel have been used in ATC operations predominantly for the purposes of contingency operations during industrial disputes. Such personnel have been ex-controllers, military controllers and controllers from other units or locations. Even current military controllers and civil controllers from other units or locations must be considered “unqualified personnel” as ICAO training, rating and experience requirements are explicit in stating that the issuance of a rating requires experience to be gained “at the unit for which the rating is sought”. Where any such personnel are used as a contingency operation during industrial disputes IFATCA still considers them to be “unqualified personnel”.
2.6 Recent examples are the situation in Costa Rica in mid 2004, where some of that nation’s licensed ATCOs were replaced by unqualified personnel, including pilots, and a very similar situation in Guatemala in early 2005. In the latter example it was alleged that controllers from another nation were forcibly transferred to Guatemala and immediately set to work in airspace they were not trained on or familiar with, nor rated or endorsed for.
2.6.1 The Guatemalan situation clearly demonstrates that our understanding of “unqualified personnel” must encompass all personnel OTHER than ATCOs licensed, rated and qualified for the duties they will undertake AND at the location and position where those duties will be carried out. This means military controllers, ex ATCOs from that station, licensed ATCOs from another position, unit or nation, and unlicensed personnel.
2.7 This paper will recommend that IFATCA’s policy in regard to the use of unqualified personnel be strengthened to ensure the situation where licensed and rated ATCOs are forced to work at other than their normal positions, units or stations, is covered.
2.8 Additionally PLC gave consideration to IFATCA’s policy in regard to the legal liability for the use of unqualified personnel, to ensure that it is sufficiently robust to cover all such situations. It was accepted by PLC that the current policy sufficiently covers the protection of the individual working as “unqualified personnel”, whether they be unlicensed personnel or licensed personnel form elsewhere. However it was felt the policy should be expanded to expect that not only the service provider directing the use of unqualified personnel be held accountable for any incident arising form the use of such personnel, but that any other service provider who actively supports or assists the use of unqualified personnel must also hold a vicarious liability for their actions, and any subsequent misadventure.
2.9 Both the service provider supplying, and the service provider utilising unqualified personnel, have an over-arching duty of care to all users of the affected airspace, and must accept responsibility for any safety incident arising from the use of unqualified personnel. Clearly, States that permit service providers to utilise or support the use of unqualified personnel, are in breach of their obligations as signatories to the ICAO convention and annexes. Accordingly this paper will recommend a strengthening of IFATCA’s legal policy in this regard.
3.1 PLC considers that IFATCA has reasonable and appropriate policy covering the use of unqualified personnel. However in light of recent examples of how unqualified personnel have been used during industrial disputes, PLC recommends that IFATCA policy is expanded to specify that personnel must be licensed, rated, recent and competent appropriate for the duties to be undertaken at the position and unit where the duties will be performed. This will ensure that the policy covers the situation that arose in Guatemala in early 2005 where it was alleged that ATCOs with appropriate qualifications for the type of duty being performed were forced to work at another location.
3.2 PLC further recommends that any service provider who materially supports or assists another service provider to use unqualified personnel must assume legal liability.
It is recommended that:
4.1 The IFATCA Manual, page 4342, section 4.2, paragraph 4.3.1 and page 4411, section 1.3, paragraph 1.3.2 be amended to read:
“For the purpose of guaranteeing safety, controllers shall not be replaced by personnel who do not hold ATC licenses in accordance with ICAO Annex 1, with the ratings, recency and competency appropriate to the duties that they are expected to undertake for the position and unit at which those duties are to be performed.”
4.2 The IFATCA Manual, page 4342, section 4.2, paragraph 4.3.2 and page 4413, section 1.2, paragraph 1.2.9 be amended to read:
“In the event of an incident, caused totally or in part by the use of unqualified personnel, responsibility must lie with the person or authority responsible for allocating the unqualified staff to the task undertaken, and any other person or authority who has materially supported or assisted to use unqualified personnel.”
ICAO Annex 1, Chapter 4, section 4.3.
Last Update: September 29, 2020