Private flights and CAO 48

[Zeke]

Bindook,. .. .Thanks for a well articulated post, it was worth the wait.. .. .Seems the best way to fix this mess would be to change the words employment/employer 48.8.02/48.1.1.12 with “operator” to cover private ops.. .. .Z

[429 CJ]

</font><blockquote><font size="1" face="Verdana, Arial, Helvetica">quote:</font><hr /><font size="2" face="Verdana, Arial, Helvetica">it would seem that parachuting, as it is conducted at many of the major drop zones, could reasonably be classified as charter. That would indeed be a very interesting state of affairs. </font><hr /></blockquote><font size="2" face="Verdana, Arial, Helvetica">However, was that situation in fact covered by...... </font><blockquote><font size="1" face="Verdana, Arial, Helvetica">quote:</font><hr /><font size="2" face="Verdana, Arial, Helvetica">......parachuting flights on Saturday and Sunday” were commercial and counted anyway, unless they all (including the pilot) shared the costs or the parachutist/s owned the aircraft).. . </font><hr /></blockquote><font size="2" face="Verdana, Arial, Helvetica">Hmmm. I'm having a bit of a "gudanken" here, but would there be a bit of a coincidence with the words parachuting, and clubs perhaps? At least as far as I am aware, a club has either due paying members, or indeed cost sharing equity based partners, who either own an equal share of the aircraft, buildings, airstrip (if owned) etc, or indeed are an equal cost bearing members of an organisation (with a committee who "runs" the operation for them)? What of the pilot who indeed is a dues paying member of the parachuting club him/herself?. .. .then..... .. . </font><blockquote><font size="1" face="Verdana, Arial, Helvetica">quote:</font><hr /><font size="2" face="Verdana, Arial, Helvetica">The carriage of passengers or cargo. .for hire or reward . .to or from any place . .is charter: CARs 206(1)(b)(i) and 2(7)(b)..... . </font><hr /></blockquote><font size="2" face="Verdana, Arial, Helvetica">Which would effectively stymie the private flying bit re: inclusion in flight and duty times, because it would of course be employment. Then why would the regulator effectively contradict completely with.... . .. . . . </font><blockquote><font size="1" face="Verdana, Arial, Helvetica">quote:</font><hr /><font size="2" face="Verdana, Arial, Helvetica">A pilot shall not commence a flight and an operator shall not roster him for a. .flight unless during the seven days period terminating co-incident with the. .termination of the flight he has been relieved from all duty associated with his. .employment for at least one continuous period embracing the hours between 10. .pm and 6 am on two consecutive nights. </font><hr /></blockquote><font size="2" face="Verdana, Arial, Helvetica">Which brings one back to the question, is it (parachuting) private or commercial? One reg would appear to say one thing, and yet another points to another interpretation being allowable, albeit under effectively a different set of rules? . .. .And on a completely different discussion..... .. . </font><blockquote><font size="1" face="Verdana, Arial, Helvetica">quote:</font><hr /><font size="2" face="Verdana, Arial, Helvetica">"take into account" means to include as a factor in the calculation. Note the distinction between the obligations imposed on the operator and the obligations imposed on the pilot. </font><hr /></blockquote><font size="2" face="Verdana, Arial, Helvetica">Now what piece of legislation gives the regulator the power to make what would amount to being heresay, under the guise of (I believe the latest term is)...."A CASA FACT"? This, whilst I concede that the whole point of an investigation into someone, or their AOC, has to delve into the past and take on board various accounts of previous happenings and occurences, does this exclude the regulators team of investigators from what would amount to "natural justice" in the form of corroberating evidence to support what might amount to an "untrained observer" (perhaps a beered-up passenger, or a small child on the ground), making a claim of fact that indeed may have little or no basis in truth or even fact? Much is made as to the suitable "qualification" of someone to either forcast something, or even to make a determination against someone or thing, so how come it would appear that what is good for the goose may not neccessarily be good for the gander? . .. .How can the regulator maintain a "level playing field", that is touted as being an integral part of our society, when it is seen that they (CASA) can, or indeed will, act on a tale told out of school, effectively out of spite against an operator? Is it time to at least try and simplify the wording of some of the rules that would appear to confound many persons in the industry?. . . . <small>[ 19 March 2002, 02:10: Message edited by: 429 CJ ]</small>

[ozoilfield]

BIK . .. .CAO 29.1.0.4.1(a) alows a private pilot act as pilot in comand of an aircraft that is engaged in parachute operations.. .. .If the PIC is only required to be the holder of a PPL, the operation therefore would be a private operation and would not require an AOC.. . . . <small>[ 19 March 2002, 07:46: Message edited by: ozoilfield ]</small>

[Creampuff]

I beg to differ, Ozoilfield.. .. .Satisfaction of the requirements of CAO 29 is a necessary but not sufficient condition to carrying out parachute operations in accordance with the rules. All the other rules still have to be satisfied.. .. .To take a very simple example, the pilot in command must be endorsed on the aircraft being used for parachute operations, yet that isn’t mentioned in CAO 29. . .. .Is your view that the holder of a private pilot’s licence is allowed, under the authority of CAO 29, to act as pilot in command of any aircraft being used for parachute operations, whether or not the pilot is endorsed on the aircraft? If your answer is - at it must be – ‘no’, then hold that thought.. .. .The AOC rule must be complied with, just as the aircraft endorsement and every other rule must be complied with, even though none of them is mentioned in CAO 29.. .. .Parachute operations may be conducted without an AOC if they are private. Parachute operations may not be conducted without an AOC if they are not private. Whether they are private or not depends on CAR 2(7) and CAR 206 (and to a limited extent - pun intended - CAR 206(1A), the same as any other operations. . .. .If a private pilot conducts parachute operations that satisfy the definition of charter in CAR 206 without an AOC, the AOC rule is breached. It’s no different than if the private pilot conducts parachute operations in an aircraft on which the pilot is not endorsed: the endorsement rule is breached. Waving CAO 29 around is no answer.

[W84me]

I fly a tiger moth on my days off and have to count it all as duty which means if I work 6 days i can not not fly the tiger on my day off (7 day).. .it sucks <img border="0" title="" alt="[Frown]" src="frown.gif" />

[howiepolar]

Guys Idont know where to start to find the reg for this, but I have up until a while age been frying for a parachute operation up in Cairns, I believe the reason we done need an AOC and can remain "Private Ops" is because both jumpers and pilots must join the APF ( a CLUB ) . .. .We are all CPL pilots up there but only because they want experienced pilots due to top end weather and navajos being used. . .. .Correct me if Im wrong but this is how my boss explained it for me.. .. .The rules will have to be changed soon, coz this was bought in with non profit parachuting clubs in mind, not big profit making ops like Cairns and sydney for example. Those guys are getting nervous and slowly working towards gaining AOCs.

[Creampuff]

I think you'll find that there's a bit of smoke and mirrors going on here.. .. .If an operation does not satisfy any of the criteria listed in CAR 2(7), it's commercial and needs to be authorised by an AOC.. .. .A bloke (I think the case name is Von Nida) tried the 'let's all join a club' - or maybe it was the 'let's all buy a share in the aircraft' - sham. The Tribunal found it to be charter.

[PROPSWINGA]

Bindook....excellent response however I have a question of you. Parachuting is not to be included as duty time if it is not at the behest of your employer but what happens if you are being paid by someone else to fly the parachute plane? This then constitutes employment, although it is not with your full-time or regular employer, and then really should count also as duty time.. .Ozoilfields....the old adage that the APF wheels out every time "we only fly our members" and therefore the ops should remain private, lost all of its impact and relevance with the introduction of tandem para ops...this operation is nothing more than a money-making venture designed to rick $350+ off the punter on a once-only ride...naturally the APF makes the big buck ripping them off for $15 a time making them join their federation when really there should be absolutely no need to whatsoever.. .This whole sorry mess needs sorting out, and soon.

[Creampuff]

BTW. From: <a href="http://www.austlii.edu.au/au/cases/cth/aat/1998/783.html" target="_blank">http://www.austlii.edu.au/au/cases/cth/aat/1998/783.html</a>. .. ..... .. .23. The phrase `hire or reward' quoted above in the definition of `charter purposes' was considered by the Supreme Court of South Australia in Chegwidden v White (1985) 81 FLR 168, where Cox J observed, at 170 -171: . .. . </font><blockquote><font size="1" face="Verdana, Arial, Helvetica">quote:</font><hr /><font size="2" face="Verdana, Arial, Helvetica">It is unnecessary in this case to attempt an exhaustive definition of the words "hire or reward" in reg 191 of the Air Navigation Regulations [which is the predecessor to, and so far as this matter is concerned in exactly the same terms as, CAR 206]. As I have said, I do not think that "hire" necessarily connotes a legally enforceable contract. Certainly "reward" does not. Usually there will be a payment in money, but this is not essential. It does not matter if the consideration cannot be quantified precisely. Sometimes the legislative context in which this phrase is used makes it plain that a course of conduct, something habitual or systematic, is indicated, but plainly that is not the case here. However, the word "for" would seem to require that the payment or recompense be the motive or purpose for the carriage. An unexpected gratuity paid after the ride would not be enough: see generally the judgment of Bray CJ (12 SASR 214) and of the High Court in Commissioner for Prices and Consumer Affairs (SA) v Charles Moore (Aust) Ltd (supra). . .... . .Broadly speaking, the purpose of the words of limitation, "hire or reward", in reg 191 is to distinguish the pilot who genuinely carries his passengers for nothing from the pilot who, directly or indirectly, makes the flight in return for some payment or other recompense. If there is any ambiguity about it, the court should bear in mind that the evident purpose of the Regulations in this respect is to promote air safety - higher qualifications are needed for a commercial pilot licence - and should give the Regulations a liberal and remedial construction. It would be strange if a pilot commits an offence if he charges $500 to fly a passenger to Sydney, but not if he charges him $600 for a trip that includes a night at the opera as well. I cannot believe that it was the intention of the Executive Government of the Commonwealth to allow the Regulations to be evaded by such a simple stratagem.'</font><hr /></blockquote><font size="2" face="Verdana, Arial, Helvetica">[bolding added]. .. .I cannot believe that it was the intention of the Executive Government of the Commonwealth to allow the Regulations to be evaded by such a simple strategem as joining a club.

[Blue Hauler]

On another note:. .. .If the pilot of the said 'private' aircraft receives no payment or other tangible bauble, but gains experience and such experience improves his employment prospects, could it not be argued that he has been rewarded?

[Creampuff]

Good point about the distinction between pilot and operator, though I don't agree entirely with your last two assertions BIK.. .. .Chegwidden was about a pilot alone. I think he was the one who offered a holiday package that included a 'free' flight to the destination (on Kangaroo Island?? I think.) He flew the aircraft. The aircraft was (I think) hired from the local flying school. He held only a private pilot's licence. (I think Von Nida was the one where he charged passengers to fly, and the charge included $1 for a 'share' in the aircraft. His (unsuccessful) argument was that everyone on board owned the aircraft, so the flight was for the personal transportation of the owners.). .. .I don't think the operator/pilot distinction matters much for the purposes of the classification of the operation - CAR 206 doesn't mention who has to be hired or rewarded. (It will make a difference if someone decides to prosecute.) If Virgin Blue charges passengers money to fly on aircraft whose pilots happen to provide their services for free, that's still RPT. If a 'drop zone' operator charges punters ('club' members or not) to go parachute jumping from aircraft whose pilots happen to provide their services for free, that's still charter.. . . . <small>[ 24 March 2002, 20:56: Message edited by: Creampuff ]</small>

[ozoilfield]

Yeh, but are they charging for a flight in an aircraft or the training and the parachute jump?. .. .The aircraft is just a tool. They could just a easly use a tower as the RAF did during WWII.