Is Part 138 Aerial Work Certificate really required ?

[On eyre]

Asking for a friend of course.
Hypothetical situation you understand.
A private company owns it’s own aircraft, employs it’s own pilots and fish spotters to find fish for it’s own fishing enterprise.
Can this be conducted as a private operation or is a part 138 certificate and all that that entails necessary.
Navigating the regs is a nightmare.
Any help, for the friend of course, appreciated.

[Mach E Avelli]

A station using its own aircraft purely to inspect stock, go to the shops etc is private, even though it could be claimed that the aircraft is contributing to the business, so I don't see why the same wouldn't apply in your scenario.
Though I am sure some legal experts will have a more complex and completely different view.
Meanwhile it's better to ask for forgiveness than permission.

[Arm out the window]

A Part 138 certificate "shouldn't" be particularly onerous or expensive to obtain, and if you're going to run some operation for profit, I'd be thinking of it this way -

- Whoever's running the flying ops side will be making decisions and setting standards as per a chief pilot / head of flying ops anyhow, so might as well specify them in documentation, plus maint coord.
- With overwater ops, probably low level at times, there will be a bunch of safety and SAR issues you will want covered anyhow, so good to include all that as well.
- If someone spears in and gets hurt, Worksafe or similar will be the ones to come after you hard, so rather than having it possibly considered ad-hoc, it'd be sensible to have the equivalent of all regulatory bases covered with respect to induction, recurrent checking, SOP, flight and duty etc, to give yourself some protection.

I suppose what I'm getting at is, it'll walk and quack like a duck, so despite the stuff-around factor, it may be sensible to just use whatever Part 138 sample manuals etc are available as guide, then decide whether you are happy to keep it private or want to bite the bullet and get a certificate. If you can demonstrate that induction, training, recurrency, underwater escape training etc. are all done, it should make things easier in 'the unlikely event'.

[alphacentauri]

You could ask CASA. They conduct CASR 138 operations regularly without a CASR 138 certificate.

[Checkboard]

GM 138.030 Requirement to hold aerial work certificate
Any person conducting any aerial work activity is considered to be conducting an aerial work
operation regardless of whether they hold an AWC or not. Accordingly, the conduct of any
aerial work operation is required to comply with the regulatory requirements applicable to
their operation.
For example, if an individual is the pilot conducting aerial work operations over their own land
and in their own aircraft, they are not required to hold an AWC. However, they must still
ensure that their flying activities meet the requirements of certain sections of Part 138. In this
case, they are considered to be a limited aerial work operator, and the activity is considered
to be a limited aerial work operation.
An aerial work operation involving spotting or photography, where no renumeration is
received by any person, does not require an AWC. Such an activity is considered to be a
limited aerial work operation.
An aerial work operation conducted over land owned by the registered operator of the aircraft
in certain circumstances is not required to hold an AWC. Such an activity is considered to be
a limited aerial work operation.

CASA's ACCEPTABLE MEANS OF COMPLIANCE AND GUIDANCE MATERIAL

[Lead Balloon]

The stuff Checkboard quoted is a paraphrasing of this reg:138.030 Requirement to hold aerial work certificate

(1) A person contravenes this subregulation if:

(a) the person conducts an aerial work operation (other than an aerial work operation covered by subregulation (2)); and

(b) the person does not hold an aerial work certificate that authorises the person to conduct the operation.

(2) An aerial work operation in an aircraft is covered by this subregulation if either or both of the following apply:

(a) the operation is spotting or photography and no remuneration is received by any of the following for the operation:

(i) the pilot;

(ii) the person mentioned in subregulation (3);

(iii) a person or organisation on whose behalf the operation is conducted;

(b) the operation:

(i) is conducted over land owned or occupied by the person mentioned in subregulation (3); and

(ii) is not conducted over a populous area or public gathering; and

(iii) is not an external load operation involving the carriage of a person as an external load.

(3) The person is:

(a) if the aircraft is required to be registered—the registered operator of the aircraft; or

(b) otherwise—the owner of the aircraft.

(4) A person commits an offence of strict liability if the person contravenes subregulation (1).

Penalty: 50 penalty units.The term 'limited aerial work operation' is a paraphrasing of 138.030(2).

But...

There are, as always, nooks and crannies that have to be explored. The Part 138 MOS has bits that exclude stuff from the definition of 'aerial work operation' entirely. One of the exclusions is "an operation that is aerial spotting, carried out in a weight-shift-controlled aeroplane type certificated in the primary category whose operation is administered by a sport aviation body."

So if your spotters can do their job in a 'weight-shift-controlled aeroplane'...

[Duck Pilot]

Tell your friend to ask CASA.

The variables in the requirements to hold a 138 certificate may require some operators to have a certificate, whilst others may not require one.

Should also take into consideration the insurance ramifications if something goes wrong and your not certified, and you are required to be.

I don’t believe applying for and gaining a 138 certificate is as onerous as getting an AOC, particularly if you’re not going to use task specialists.

[Lead Balloon]

Glen Buckley asked CASA and he relied on the answers given in circumstances in which CASA knew full well what Glen was doing.

[Chronic Snoozer]

So basically, you don’t need one unless we say you need one, in which case ignore the previous advice we provided that you don’t need one. And we should remind you of the strict liability provisions in our regulations. You’re welcome.