Review of LM (Legal Matters) – Professional Policy of the TPM

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Review of LM (Legal Matters) – Professional Policy of the TPM

59TH ANNUAL CONFERENCE, Singapore, 30 March – 3 April 2020

WP No. 162

Review of LM (Legal Matters) – Professional Policy of the TPM

Presented by PLC

 

IMPORTANT NOTE: The IFATCA Annual Conference 2020 in Singapore was cancelled. The present working paper was never discussed at Conference by the committee(s). Resolutions presented by this working paper (if any) were never voted.

Summary

Over the past few years, PLC came to the conclusion that the TPM was in need of a significant overhaul in order to ensure consistency throughout the manual and with ICAO. Every year, several slight changes are made to individual policies, but there is a need to look at the entire TPM in a holistic way.

Introduction

1.1.  The TPM is the main document used by TOC, PLC, ICAO representatives and other liaison officers as well as Member Associations, when there is a need to advocate a position on behalf of IFATCA or to push IFATCA’s policies at the global level. It is obvious that, for these reasons, the manual has to be as up- to-date as possible and as easy to use and refer to as it can be; this brings the need for a significant update this year.

1.2.  This paper is one of multiple papers that will look at some editorial changes to the LM (Legal Matters) section of the TPM. This paper does not propose changes to the content or the intent of policies; changes proposed are purely editorial, but since they affect policies, they need to be presented in due form to Committee C at Conference.

Discussion

2.1. In LM 11.1.1, the first paragraph should be rephrased to include a “shall”. The 2nd paragraph does not contain any policy, therefore it is proposed to move it at the top of the page and make it the introductory text to the policy. The 5th paragraph (including bullet points) should be amended to replace “must” with “shall”. Bullet point e) has no link with the previous and would read better as standalone policy. Last sentence of e) should be pluralized to make it gender neutral.

IFATCA TPM (2019), LM 11.1.1 – Foundational and General Policy on the Legal Liability of the Controller

Proposal:

It is imperative to provide aAdequate legislative protection for shall be provided to the air traffic controller in order to reduce such strains as may be engendered from improper legal status.

IFATCA is of the opinion that the criminal and civil prosecution of controllers following aviation accidents and incidents is not in the public interest. This is a matter of how and where laws are applied in a very technical area and is not just a matter of inappropriate laws. This problem, then, should not be addressed through an international convention proscribing criminal prosecution in these cases, but rather through an international understanding of the problems created in the technical field by such prosecutions and an understanding of the various matters of public policy involved.

 

[EDITORIAL: MOVE TEXT TO THE TOP, AS INTRODUCTION TO POLICY.]

 

[…]

 

All other cases where “mens rea” cannot be proven must shall fall under Civil law, as opposed to Criminal Law. It must shall be heard by a competent Civil Court, and must shall be subject to the following conditions:

a) No controller to shall be imprisoned pending a civil court hearing, nor after a civil court hearing if it is proven that a controller has committed a tort only;

b) No controller shall be subjected to disciplinary action under administrative law to have the administrative case heard prior to the Civil Court action. If there is likelihood of a Civil action, it would be fairer to transfer the controller to non-active duties without loss of any financial benefits in all cases, thereby avoiding prejudging the Civil Court’s ruling;

c) Employing Agencies to shall be responsible for the torts of their employees;

d) Military authorities and controllers to shall be subject to the same legislation when either they are controlling general air traffic, or an accident occurs involving general air traffic and operational air traffic, the latter being under military control or flying without control;

e) IFATCA is not renouncing legal liability for air traffic controllers, but seeking only to keep it within reasonable bounds so that the controllers may suffer less stress in carrying out his their day-to-day duties. […]

2.1.1. On the following page, in LM 11.1.1, the two last paragraphs should also be reworded slightly to make them gender neutral. The last sentence should be deleted, since it is already covered word for word in policy ADME 2.4 and ADME 2.6.

IFATCA TPM (2019), LM 11.1.1 – Foundational and General Policy on the Legal Liability of the Controller (cont’d)

Proposal:

[…] The controller’s employer should indemnify the controller for all damages and legal costs for defence incurred if a controller is held liable as a result of carrying out his duties for his prescribed by the employer.

An aAerodrome controllers cannot be held liable for any accident or incident that occurs on that portion of the aerodrome or its vicinity under his their control if there is no direct visual observation of the area and a surface movement surveillance system is not in use. Surface movement surveillance systems shall only be used to supplement direct visual observation.

2.2. In LM 11.1.2, the first paragraph is in fact a definition, which should be moved to acronyms and terms, with an hyperlink to the definition where the word appears elsewhere in the policy.

IFATCA TPM (2019), LM 11.1.2 – Third Party Risk

Proposal:

Third Party Risk can be defined as the probability that individuals on the ground are affected by aircraft accidents.

 

[EDITORIAL: MOVE TO ACRONYMS AND TERMS, ADD HYPERLINK.]

2.3. LM 11.1.3 is exactly, word for word, the same policy as ADME 2.6. It should therefore be deleted to avoid unnecessary redundancy.

IFATCA TPM (2019), LM 11.1.3 – Liability Related to Aerodrome Controllers

Proposal:

Where apron management services are established and not provided by an aerodrome ATS Unit, aerodrome controllers cannot be held liable for accidents or incidents that occur whilst aircraft are under the jurisdiction of the Unit providing such a service.

 

[EDITORIAL: REMOVE IN TOTO.]

2.4. In LM 11.1.4, it is proposed to replace “must” with “shall” for consistency:

IFATCA TPM (2019), LM 11.1.4 – Transfer of Control Functions – Legal Aspects

Proposal:

States must shall have in place regulations detailing procedures to be followed before Separation Assurance can be transferred to the cockpit.

The Initial and final points at which Separation Assurance are transferred from ATC to the pilot must shall be accurately defined in all cases.

The responsibility for providing separation between the intercepting aircraft and all other aircraft must shall be clearly defined. ATCO’s should not be held liable for incidents or accidents resulting from an interception.

2.5. In LM 11.2.1, the first part of the first policy is grammatically incorrect and should be reworded to “IFATCA’s definition of Just Culture is”. At the end of the 2nd paragraph, the ICAO SMM Manual should be properly referenced (i.e. APA Style). The 3rd paragraph of the policy is in fact a reference to other IFATCA policies, LM 11.2.4 and LM 11.2.6. They should be referenced using the standard format, i.e. “see also”, used elsewhere in the document. The 4th paragraph needs a small editorial to insert the word “shall”.

IFATCA TPM (2019), 11.2.1 – Just Culture, Trust and Mutual Respect

Proposal:

Just Culture IFATCA’s definition of Just Culture is “a culture in which front line operators and others are not punished for actions, omissions or decisions taken by them which are commensurate with their experience and training, but where gross negligence, wilful violations and destructive acts are not tolerated”

Those Member Associations under national legal frameworks where mandatory and/or voluntary incident reporting systems are not yet compulsory, are encouraged to create one provided it is based on confidential reporting; the reported data shall be protected and never be used against the reporting person nor any other person mentioned in the report and it is compliant with the ICAO SAFETY MANAGEMENT MANUAL guidelines ICAO Doc 9859 – Safety Management Manual, 4th Ed. (2018).

In regard to data protection see IFATCA policy on the Use of Recorded Data and policy on Protection of Identity.

 

[EDITORIAL: REPLACE THE ABOVE WITH THE FOLLOWING FRAME:]

 

 

Just Culture is shall be in the service of safety and by no ways a means of social control or disciplinary mechanism.

2.6. In LM 11.2.2, a few editorials are required in order to render gender neutral the 1st paragraph of the policy, and to insert a shall:

IFATCA TPM (2019), LM 11.2.2 – Exemption From Duty

Proposal:

When an accident or incident is alleged to have occurred where the actions of an Air Traffic Controller may have had a bearing, the Controller shall have the right to be exempted from control duties until he is physically and psychologically fit again. The removal is shall be without prejudice, and is non-disciplinary.

2.7. In LM 11.2.3, a few editorials are required in order to render gender neutral the policy, and to insert a shall in the first sentence:

IFATCA TPM (2019), LM 11.2.3 – Right of Representation

Proposal:

The Controllers has shall have the right to be accompanied by a representative of his their choice at any hearing, inquiry or investigation into any Air Traffic Control incident or accident.

The Controllers should make no written statements without the advice of a legal representative of his their choice, even at pre-investigation board stages.

The circumstances prompting the investigation, and the perceived operational situation immediately prior to the alleged incident / accident, shall be made available to the Controller and his controllers and their representative(s) prior to any questions being put to the Controller them.

 

[…]

 

The Controllers and his their representative(s) have the right to make representations and direct questions to the officials in charge of the investigation.

 

[…]

 

The Controllers and his their representative(s) have the right, prior to appearing before any investigative Board, to review all relevant video and audio recordings and computer readouts of Air Traffic Control operations where available. In addition, the Controller and his controllers and their representative(s) shall be provided with copies of transcripts of all relevant audio recordings prior to appearing before any Investigative Board.

2.8. In LM 11.2.6, The first paragraph (not crossed out) is not proper policy. It would be better housed as the introduction to the policy. In addition, on the following page, the second paragraph (not crossed out) is a definition and should be moved to “acronyms and terms” with an hyperlink to the definition in the policy, where applicable.

IFATCA TPM (2019), LM 11.2.6 – Use of Recorded Data

Proposal:

Audio and visual recordings and Ambient Workplace Recording (AWR), together with associated computer data and transcripts of air traffic control communications are intended to provide a record of such communications for use in the monitoring of air traffic control operations, and the investigation of incidents and accidents.

 

[EDITORIAL: MOVE TO THE TOP, AS INTRODUCTION PARAGRAPH.]

 

Ambient Workplace Recording (AWR) may generally be defined as any type of recording, audio and / or visual, instituted in an air traffic control operations area that records the conversation of controllers and / or the environment within an air traffic control operations room on a continuous basis.

 

[EDITORIAL: MOVE TO ACRONYMS AND TERMS, ADD HYPERLINK.]

2.9. In LM 11.3.1, the normal procedure for MAs would be to contact the Executive Board, most likely through the Office. It is proposed to leave it to the EB to decide whom they should coordinate with (as it is currently the case, with current practice).

IFATCA TPM (2019), LM 11.3.1 – Legal Assistance from IFATCA

Proposal:

When seeking legal assistance from IFATCA, the Member Associations shall establish contact with the Executive Board who will consult with the Chairman of PLC.

2.10. In LM 11.3.2, in the same spirit as above, the normal procedure for MAs would be to contact the Executive Board, most likely through the Office. It is proposed to leave it to the EB to decide whom they should coordinate with (as it is currently the case, with current practice).

IFATCA TPM (2019), LM 11.3.2 – Equal Opportunity Legislation

Proposal:

MA’s Member Associations should bring to the notice of PLC the Executive Board any evidence of anomalies caused by equal opportunity legislation which they would wish the Standing Committee Federation to study.

2.11. LM 11.4 is in need of a few edits with regards to cross references within the policy that probably got lost with time, a few punctuation anomalies to correct, and also minor amendments to make the policy gender neutral. There is also a proposed change of terminology from “ICAO rules” to “ICAO SARPs and PANS”.

IFATCA TPM (2019), LM 11.4 – Unlawful Interference with International Civil Aviation Facilities

Proposal:

If, during unlawful interference with Civil Aviation, the appropriate authorities instruct the Controller ATCOs to deviate from, or violate, the ICAO rules Standards and Recommended Practices (SARPs), he they shall in no way be held legally responsible for carrying out such an order.

[4.3] All orders which imply a deviation from the established air traffic rules shall be conveyed through the appropriate authorities, normally the immediate superior, and always through the authority responsible for the provision of Air Traffic Services. Such orders shall always be issued in written form, clearly identifying their origin and authority, and retained for investigative purposes.

The Air Traffic Controller ATCOs on duty shall be granted relief from his their working position when the conditions stated in para. 4.3 the paragraph above are not followed, or when he they considers the content of the order wrong or criminal.

During unlawful interference against ATC facilities, or its threat, services may be withdrawn. Measures shall be included in national or international contingency procedures, designed in such a manner, to ensure there will be minimal disruption of service.

2.12. In LM.5, there is a mention of a definition and criteria for what constitutes an unsafe airspace. However, nowhere in IFATCA documents can such definition be found. Wp164 from 2006 identifies a certain number of criteria, but no definition per se. The policy is still valid but should be slightly amended. There is also a need to harmonize the use of ANSP (instead of ATSP):

IFATCA TPM (2019), LM 11.5 – Unsafe Airspace/Aerodrome

Proposal:

IFATCA should issue a warning to airlines, air traffic navigation service providers and all other relevant bodies concerning the aviation industry and users of the risk of operating in unsafe airspace according to the unsafe airspace definition and criterions when it is demonstrated that an airspace of defined dimensions poses a risk to the safety of air traffic.

Conclusions

3.1.  The TPM is in need of a significant overhaul in order to ensure consistency throughout the manual and with ICAO. This paper is one of several papers addressing this issue, addressing in particular the editorial changes needed for the LM (Legal Matters) Section of the manual.

Recommendations

4.1.  It is recommended that the above-mentioned sections of the Technical and Professional Manual (TPM) be amended accordingly, as described in Section 2 of this working paper.

References

IFATCA. (2019). IFATCA Technical and Professional Manual (TPM). 2019 Ed. Montréal, Canada: International Federation of Air Traffic Controllers’ Associations.

Last Update: October 2, 2020  

August 29, 2020   213   Jean-Francois Lepage    2020    

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