CAO 48.1 Operators Breaching the Award

[KRUSTY 34]

It's hardly breaking news that the protracted implementation of CAO 48.1 was due in no small part to the increasing influence of Industry. Initially hoped to provide enhanced protection against fatigue, it has devolved into a document worse than its predecessor! We now have situations where crew can be worked well in excess of the previous limits, and the onus for policing actual fatigue levels has fallen largely onto the individual, with all the associated pressures that can be brought to bear by some unscrupulous operators.

With commendable foresight the authors of the Air Pilots Award 2020 have included many of the protections of the former CAO48. One such inclusion (of which there are several) is what we all knew as the "12 hour rule" now to be found in the Air Pilots Award 2020 15.8 (n). Black and White! Under the old CAO48, bust 12 hours (of which you were forbidden to do so intentionally) and you are required to have at least 24 hours free from all duty. Now, under our "enhanced" Fatigue rules, you can legally bust 12 hours, and your duty free period is just 1.5 times the exceedance added to 12 hours! CAO48.1 8.2.

As we all know, an employer is not allowed to subject an employee to workplace conditions or practices that reduce to below the Award. This includes an EBA, a signed Workplace agreement, or any other instrument except the National Employment Standards (NES). I have been informed by a former colleague that his airline has stated that in accordance with CAO48.1, they can, and will, require them to perform duties up to 13.5 hours!

Know your rights everyone.

[Duck Pilot]

Are they operating under an Appendix or FRMS? If it’s the later the operator would have wrote their own script and CASA should have already signed off on it by now. I’m not taking sides, however the 12 hour rule was ditched with the recent 48.1 changes for those operating under an approved FRMS.

[Don Diego]

FRMS is a heap of ****, end of story.

[Duck Pilot]

FRMS is a heap of ****, end of story.

Yer, don’t tell me because I know.

[morno]

FRMS is a heap of ****, end of story.

Why? I operate under a great FRMS that is far more restrictive than anything CASA or the award dreams up.

”FRMS Is a heap of ****” is a very broad and incorrect statement.

[gordonfvckingramsay]

Sorry Guys,

But you are all missing the point! Let me quote from my original post:

"...an employer is not allowed to subject an employee to workplace conditions or practices that reduce to below the Award. This includes an EBA, a signed Workplace agreement, OR ANY OTHER INSTRUMENT (additional emphasis) except the national Employment standards...

So it doesn't matter if your FRMS (as in any other instrument) is gold plated or a turd rolled in sprinkles, if it requires you to work hours that are greater than the Award, it ain't legal for them to direct you to do it!

The FRMS in this case is irrelevant!

This is why NJS were forced…sorry voted…to delete virtually all of their EBA rights to a lifestyle. The FRMS is the target now.

[tossbag]

How many pilots will take the employer to Fairwork over a breach of this nature?

[TimmyTee]

Wouldn’t they argue that a salary above the award or more days off cancels it out?

[Rhterrke Atnyeneteke]

Wouldn’t they argue that a salary above the award or more days off cancels it out?
Nah, they'd save themselves the bother and read up and realise that clause 15.2 of the air pilots award 2020 states that - provided you work less than 38 hours a week on average - rest periods will be determined by the CASA regs, employer exemptions or the FRMS.

[KRUSTY 34]

Nah, they'd save themselves the bother and read up and realise that clause 15.2 of the air pilots award 2020 states that - provided you work less than 38 hours a week on average - rest periods will be determined by the CASA regs, employer exemptions or the FRMS.

Correct, but Clause 15.4 states that if you work in accordance with Clause 15.2(a) the following provisions will apply, including Clause 15.8(n)

[Don Diego]

Morno, good for you. In 40 plus years of 48 it was not too hard to figure out where you stood but this “heap of ****” has more if’s, but’s and maybe’s than a Rhodes Scholar could understand, remember and use, they had to make a “calculator” to help. Nope, just a modern whip to get more out of us and oh, if you go “fatigued” there must be something wrong with you so off to the company Dr for a look see. Yeah great.

[RatherBeFlying07]

Clauses 15.4 to 15.8 may be varied by agreement between the employer and a majority of the employees in the workplace or part of it.
What is your understanding of clause 15.3 KRUSTY 34? Is your former colleague working under the bare bones of the Award, or an agreement?

[Slugga]

Morno, good for you. In 40 plus years of 48 it was not too hard to figure out where you stood but this “heap of ****” has more if’s, but’s and maybe’s than a Rhodes Scholar could understand, remember and use, they had to make a “calculator” to help. Nope, just a modern whip to get more out of us and oh, if you go “fatigued” there must be something wrong with you so off to the company Dr for a look see. Yeah great.

THIS !!! ^^^
There are guys falling out with medicals in large numbers in recent years and in addition, companies REFUSING to put air quality monitors in the aircraft and it's all just a big mystery.
With the diversity quota wide open, perhaps enough minorities may get sick enough they might just start looking into the industry. Already had more guys at one of the majors go long term sick to make the ABC 'cancer cluster' look like a rounding error.

[Car RAMROD]

(n) Where a tour of duty already commenced exceeds 12 hours or the flight time exceeds 9 hours the employee will have,at the completion of the tour of duty,a rest period of at least 24 consecutive hours.

”....already commenced....” is different to a rostered duty that exceeds 12 hours, isn’t it?


ie I’m rostered for a 9 hour duty, the duty has commenced, but now you go beyond 12hrs duty (or 9hrs Flt), you then get 24hrs off

is a different scenario than

im rostered for a 12.5hr duty in the first place.

[KRUSTY 34]

Have a look at 15.8 (l).

That pretty much takes care of the semantics of whether “already commenced” has any relevance?

[Lead Balloon]

Are you saying that, because of (l), (n) has no practical operation? That would be an unusual interpretation.

Seems that (n) is intended to operate in circumstances in which a pilot's tour of duty exceeds 12 hours or the flight time exceeds 9 hours, despite having been rostered for less than 12/9.

[Rhterrke Atnyeneteke]

Correct, but Clause 15.4 states that if you work in accordance with Clause 15.2(a) the following provisions will apply, including Clause 15.8(n)

Sure. But 15.3 Facilitative Provision says you can modify this, and 15.5 says it doesn't apply to a >2 pilot crew.

Furthermore you're conveniently ignored the elephant in the room by stopping reading 15.2 at 15.2(a)...(b) general or employer-specific exemptions to, or concessions under, the regulations approved by CASA from time to time; or
(c) a Fatigue Risk Management System (FRMS) that has been developed by the employer after consultation with the affected pilots and/or their representatives and approved by CASA to apply to particular employers and employees.


So none of what you wrote re the 12 hour limit applies if B or C applies.....

So it doesn't matter if your FRMS (as in any other instrument) is gold plated or a turd rolled in sprinkles, if it requires you to work hours that are greater than the Award, it ain't legal for them to direct you to do it!

The FRMS in this case is irrelevant!
Your statement is not correct. 15(.2(c) skewers it straight through the heart.

I'm not trying to nit pick or belittle you, but I'd hate for someone to grab what you wrote as gospel and walk in to HR and throw their weight around and come off a bit worse for wear when they read past (a).

[KRUSTY 34]

Are you saying that, because of (l), (n) has no practical operation? That would be an unusual interpretation.

Seems that (n) is intended to operate in circumstances in which a pilot's tour of duty exceeds 12 hours or the flight time exceeds 9 hours, despite having been rostered for less than 12/9.

Poor choice of words on my part LB. What I meant was (l) sets the limit for the duty and the idea that “once commenced” in (n) does not allow for a duty to be rostered beyond 12 hours.

[KRUSTY 34]

Sure. But 15.3 Facilitative Provision says you can modify this, and 15.5 says it doesn't apply to a >2 pilot crew.

Furthermore you're conveniently ignored the elephant in the room by stopping reading 15.2 at 15.2(a)...(b) general or employer-specific exemptions to, or concessions under, the regulations approved by CASA from time to time; or
(c) a Fatigue Risk Management System (FRMS) that has been developed by the employer after consultation with the affected pilots and/or their representatives and approved by CASA to apply to particular employers and employees.


So none of what you wrote re the 12 hour limit applies if B or C applies.....


Your statement is not correct. 15(.2(c) skewers it straight through the heart.

I'm not trying to nit pick or belittle you, but I'd hate for someone to grab what you wrote as gospel and walk in to HR and throw their weight around and come off a bit worse for wear when they read past (a).

Your point is well taken.

In hindsight I have failed to see the implications for those operating under an FRMS! And yes, pilots should always seek the advice of their professional representatives.

I view the term “...developed by the employer after consultation with the affected pilots...” with a certain level of bemusement. I wonder just how many pilots truly understood the implications that these systems (apparently negotiated in their name) would have on their future quality of life?

There are still some operators however who only use CAO 48.1

[Lead Balloon]

The FRMS provisions and the ‘minor variations’ provisions have the effect of, once again, putting a veil over what each operator is actually obliged to do.

It used to be that the Parliament and members of the public and all operators were (naively) assuming that all operators would be complying with the ‘level playing field’ of the CAO 48 series of Orders. Then the Parliament found out that CASA was handing out exemptions to those Orders (and others) like confetti. That’s why exemptions became disallowable and have to be registered on the Federal Register of Legislation. The Parliament and the public and operators could then have some chance of working out who was and was not obliged to comply with what flight and duty (and other) regulations.

But now the public and operators (and the Parliament) do not know the specific flight and duty time obligations of each operator. So far as I am aware, CASA does not publish all (or any) CASA-approved FRMSs. So far as I am aware, CASA does not publish all (or any) CASA-approved ‘minor variations’ to CAO 48.1. (CASA’s ‘Minor Variations Policy’ is very interesting reading.)

Happy to stand corrected.

[KRUSTY 34]

As am I LB.

Sometimes I do leap before I look, and it’s with gratitude that I take advice from others when they point things out.

As for the entire raping of our well-being by those in the industry who either don’t have the first clue, or even worse those who do, of what it is to be a professional pilot, it just leaves me shaking my head as to what a cynical exercise the whole FRMS system has become.

[Duck Pilot]

As stated previously, the FRMS limitations are set by operator and then approved by CASA. I’m sure in some cases the standard 48.1 appendices are more restrictive than what some of the approved FRMS’s are.

I believe the minor variation approvals for those who have them, are only temporary and have been issued to allow the operator to make changes in order to transition to an appendix or FRMS. They certainly aren’t exemptions, nor was it the intention based on the information from CASA.

Just be careful if your going to take an operator to task, as it could end up in tears if you don’t fully understand the limitations of what ever system your operating under. The new requirements are certainly more difficult to interpret in comparison to the previous 48.1 limitations, that most of us fully understood as it was drilled into us from the day we started the CPL theory studies.

[Lead Balloon]

The minor variations approvals have the same effect as an exemption. The operator gets to do something that would otherwise be unlawful.

They might be ‘temporary’ and ‘minor’, but who’d know. It’s hidden from public and Parliamentary scrutiny.

What we believe and what CASA said it intended to do are not determinants of what’s happening in fact.

[TimmyTee]

But the “science” says it’s ok. (One question I’ve always had, is when developing an FRMS, does the science also cover the maximum extension beyond max duty?)

[neville_nobody]

But the “science” says it’s ok. (One question I’ve always had, is when developing an FRMS, does the science also cover the maximum extension beyond max duty?)

Wonder similar things myself. What's the rationale behind the 1 or 2 hour extension and why isn't that the limit if it's ok?
If the duty limit is 12 hours with a 2 hour extension why isn't the limit 14 hours in the first place?

[DraggieDriver]

Wonder similar things myself. What's the rationale behind the 1 or 2 hour extension and why isn't that the limit if it's ok?
If the duty limit is 12 hours with a 2 hour extension why isn't the limit 14 hours in the first place?

That would be risk management, wouldn't it? They know if the limit were 14 hours then the rostered duties would routinely be 13 hours 55 minutes, and every time there were delays you'd be beyond the max limit. Crew would refuse the final sector when it couldn't be completed in the hard limit of 14 hours, passengers would be grumpy, unscheduled overnights would ensue, cats would be friends with dogs and the fabric of the universe would be torn asunder.

By setting the soft planning limit of 12 hours, with an allowable extension when delays occur, all this chaos is avoided by rostering 12 hours shifts to the planning limit, and then just putting pressure on crews to extend when delayed. "Do you mean you signed on this morning unfit to operate a legal FDP?"

The flip-side is there should be tracking and monitoring of how often the planning limit is exceeded and the extension is actually used and if that frequency hits a certain threshold then the pairing should be removed from the roster planning pool of options.

[Falling Leaf]

But the “science” says it’s ok. (One question I’ve always had, is when developing an FRMS, does the science also cover the maximum extension beyond max duty?)

I did my Masters thesis on the new rules, just after they came out. The purpose of my thesis was to see how well the new rules meet the agreed 'science'. My thesis stated that while the new rules were an improvement on the old, they still did not meet the agreed international standards as stated by the 'science'. Since that work, industry spent a further few years beating the rules back further to the result we have today.

Regarding the 'extensions', one thing my thesis taught me was never to extend. If you do you are entering an environment devoid of scientific or legal protection. The extensions I was told by numerous leaders of fatigue studies were a 'gift' to industry to keep them in the tent. When you extend, you are basically putting all the responsibility on yourself by saying that you are in a fit state to continue beyond the stated limits, which lets face it, are not conservative and already in industries favour.

[C441]

By setting the soft planning limit of 12 hours, with an allowable extension when delays occur, all this chaos is avoided by rostering 12 hours shifts to the planning limit, and then just putting pressure on crews to extend when delayed…….
Pre March 2020, one major airline was doing just that. Unfortunately though, some crews were convinced into extending subsequent tours of duty on the basis that the planning limits only applied up to the commencement of the trip, not individual tours of duty. When this was raised by line pilots during consultative meetings, the CASA representatives remained mute - thus approving of the procedure (in the eyes of the operator) by virtue of not disapproving of the procedure.

I'd be very surprised if it's not still occurring.

When you extend, you are basically putting all the responsibility on yourself by saying that you are in a fit state to continue beyond the stated limits, which lets face it, are not conservative and already in industries favour.

Which arguably applies at any time whether you are about to commence a duty or are already on duty. Anytime you feel unfit to operate, for any reason, you must cease operating at the first available opportunity. Easier said than done in some companies I know.

[cLeArIcE]

Who in their right mind would accept duty extensions in the current climate. It's meant to be a one off, unforseen circumstances kind of thing. Not an every day occurrence because the airline doesn't have (insert lack of any resource you want here.)
​They schedule 4 sector 11/12 hour days knowing the chances of things going to plan are almost zero and they are relying on crew to extend just because they want to go home. I feel sorry for the pax but I just don't care anymore. If I'm going to go over my duty (even by one minute) I'm getting off. I figure the pax may thank me instead of doing something in a haze of fatigue that gets people hurt or killed. (I'm sure that not many pax know this though). Yes, I have to suffer now too. Stuck in a hotel instead of with the Mrs and kids but... I get paid (not enough) to make difficult and ****ty decisions sometimes. And I'm all out of helpfulness and good will.

[TimmyTee]

Anytime you feel unfit to operate, for any reason, you must cease operating at the first available opportunity. Easier said than done in some companies I know.

how does one do that if they have fatiguely-agreed to extending (kinda like being drunk and not thinking you’re that drunk), and then realising mid sector they’re actually stuffed (or get unexpected holding etc)?

[aussieflyboy]

When assessing your fatigue levels you need to remember you need to get home after work safely as well. If you crash your car on your way home and hurt someone will you be ok with that…

The fact is there is no way you can honestly judge if you will be fatigued when driving home so how or why would you ever extend?

[neville_nobody]

If you do you are entering an environment devoid of scientific or legal protection. The extensions I was told by numerous leaders of fatigue studies were a 'gift' to industry to keep them in the tent. When you extend, you are basically putting all the responsibility on yourself by saying that you are in a fit state to continue beyond the stated limits, which lets face it, are not conservative and already in industries favour.

How come this is not stated by the regulator?? If someone has a fatigue accident where they extend believing that they are OK then say 45 mins in they "hit the wall" fatigue wise aren't they going to point to the regulations?

Additional to that there is nothing saying you can't extend every duty, which seems to be almost become a expectation at many carriers in the current climate.

[Clare Prop]

I did my Masters thesis on the new rules, just after they came out. The purpose of my thesis was to see how well the new rules meet the agreed 'science'. My thesis stated that while the new rules were an improvement on the old, they still did not meet the agreed international standards as stated by the 'science'. Since that work, industry spent a further few years beating the rules back further to the result we have today.

Regarding the 'extensions', one thing my thesis taught me was never to extend. If you do you are entering an environment devoid of scientific or legal protection. The extensions I was told by numerous leaders of fatigue studies were a 'gift' to industry to keep them in the tent. When you extend, you are basically putting all the responsibility on yourself by saying that you are in a fit state to continue beyond the stated limits, which lets face it, are not conservative and already in industries favour.

I'd be interested to see some references, including your Masters thesis. What was your hypothesis?
I have had non tertiary educated CASA people telling me it was the "science" when I questioned why the new App 6 meant I had to take more days off, therefore having to start earlier and work longer hours on the days I was allowed to be there. The only studies they referred me to, which were not what you and I would call references, showed that earlier starts are more fatiguing than later ones, which kinda proved my point, not theirs. So if you can give me some doi s I have access to multiple databases. I do love to befuddle them with pedantry. Thanks!

[walesregent]

I did my Masters thesis on the new rules, just after they came out. The purpose of my thesis was to see how well the new rules meet the agreed 'science'. My thesis stated that while the new rules were an improvement on the old, they still did not meet the agreed international standards as stated by the 'science'. Since that work, industry spent a further few years beating the rules back further to the result we have today.

Regarding the 'extensions', one thing my thesis taught me was never to extend. If you do you are entering an environment devoid of scientific or legal protection. The extensions I was told by numerous leaders of fatigue studies were a 'gift' to industry to keep them in the tent. When you extend, you are basically putting all the responsibility on yourself by saying that you are in a fit state to continue beyond the stated limits, which lets face it, are not conservative and already in industries favour.

just wondering if you have the references about the unknown consequences of extending handy at all- this would be useful resistance as my company tries to ram an undistilled FRMS rule set through. Cheers

[Falling Leaf]

just wondering if you have the references about the unknown consequences of extending handy at all- this would be useful resistance as my company tries to ram an undistilled FRMS rule set through. Cheers

There are no academic references from memory explicitely regarding extending. As I have already mentioned, extensions have been part of the rules for a very long time so it was going to be almost impossible for CASA to remove them, even though they have no basis in the fatigue studies.

[walesregent]

There are no academic references from memory explicitely regarding extending. As I have already mentioned, extensions have been part of the rules for a very long time so it was going to be almost impossible for CASA to remove them, even though they have no basis in the fatigue studies.


cool thanks

[Agent_86]

Pilots pressured to fly while tired: UnionMichael Ramsey AAP
July 5, 2022 1:33AMAustralian pilots are being pressured to fly while tired and work around "unstable" rosters, according to a union survey.The survey by the newly-merged Transport Workers Union and Virgin Independent Pilots' Association has highlighted concerns about job security after thousands of aviation workers were stood down earlier in the COVID-19 pandemic.

Of the 150 respondents from multiple companies, more than half said roster uncertainty was pressuring pilots to work while tired or unfit to fly.

The vast majority expressed concerns about fatigue management and believed there was a growing trend towards insecure work.

Workers will meet in Perth on Tuesday for the official launch of the TWU's pilots division after the merger was recently approved by the Fair Work Commission.

"Bringing pilots into the TWU means all aviation workers benefit from the might of collectivism, from the ground and baggage room right through to the flight deck," TWU national secretary Michael Kaine said.

"The (survey) results show workers continue to bear the brunt of aviation's peaks and troughs while profit-fanatic executives draw bonuses and exorbitant salaries.

"We need a commission to rebalance aviation, support good jobs, and ensure Australians can always rely on safe and secure skies."

Rex pilots, represented by the Australian Federation of Air Pilots, last month voted to take protected industrial action after years-long wage negotiations stalled.

One respondent to the TWU survey said industry morale was at an "all-time low", with the pandemic used as an excuse to erode wages and conditions.

"Very few pilots would view this as a sustainable career in the long term anymore," another respondent said.

"We have no job security, are asked to work more for less and have no control of our lives due to rostering practices."