On 27th February 2008, CX 168 operated overnight MEL-HKG with a two-man crew. The AFTLS requires that three crew members must be boarded for this flight.
CPA FOPS management asked the CAD Duty Flight Ops Inspector for, and was granted, “dispensation” from the AFTLS so that the flight could operate with only two pilots.
When the HKAOA found out about this flight, the matter was raised at the monthly Joint Rostering Committee. There was some apparent confusion over just how the “dispensation” was granted so the HKAOA wrote to the CAD seeking clarification.
Correspondence with the CAD continued for several weeks, with the CAD eventually stating that DGCA had power under section 95 of the Air Navigation Order to “...exempt from any of the provisions of this Order...or any regulations made there under, any aircraft or persons or classes of aircraft or persons, either absolutely or subject to such conditions as he thinks fit.”
The HKAOA GC found this response entirely unsatisfactory, as did their legal advisers. If the DGCA does have such powers it means he could approve any request, for any variation, for any reason as long as he sees fit. It would undermine any or all of the requirements of the AFTLS, making the document meaningless in the protections it provides to crews and to the flying public.
The flight in question was of 8 hours and 38 minutes duration and undertaken through the crew members' WOCL.