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Legality of a PPL holder being paid

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Legality of a PPL holder being paid

Old 10th May 2019, 13:54
  #61 (permalink)  
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Originally Posted by Squawk7700 View Post
I’m laughing at all these inferences towards the pilot receiving bonuses and extras for doing the flying for the company.

Pilots usually get paid less than for their primary job role in this case so it’s the reverse... you should actually get a pay CUT for flying yourself and your team around !
Sorry, could you enlighten me on how I would be paid less for being a pilot and a therapist then if I was a therapist alone?
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Old 10th May 2019, 22:54
  #62 (permalink)  
 
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Originally Posted by LeadSled View Post
Folks,
I really do recommend a somewhat closer reading of CAR 206 ---- including the case law and AAT cases.
We all know CASA is rather selective in enforcement, a lot is ignored ( because the rules are silly ---- in the case of a PPL LAME with a toolbox and a few spares flying to fix an AOG is a case in point) until somebody is in the sights of an FOI or, more commonly, an AWI.
CASA "routinely" not enforcing a regulation, or somebody else ignoring said regulation with apparent impunity, does not make your ignoring/infringing said regulation "legal".
Then, when CASA takes an interest, watch out, and have deep pockets..
Tootle pip!!

PS: From CAR 206
(viii) carriage, for the purposes of trade, of goods being the property of the pilot, the owner or the hirer of the aircraft (not being a carriage of goods in accordance with fixed schedules to and from fixed terminals);
(ix) any other purpose that is substantially similar to any of those specified in subparagraphs (i) to (vii) (inclusive);

You do all understand the meaning of "trade", according the HCA, do you??
Noted the HCA does not appear to have defined “trade” particularly but in the broader context of “trade and commerce”.

So riddle me this...We have a law ostensibly forbidding the carriage of goods by air for reward except under licence and leaving to an executive authority discretion whether to issue licences and on what terms. Such a law operates by reference to an act of trade or commerce, the carriage of goods for reward, a matter dealt with in s51(i) of the Constitution. Since it totally prohibits that activity, subject only to an unfettered executive dis- cretion, it authorizes interference going far beyond reasonable regu- lation in the interests of the general freedom set out in 51(i). Is that law then ultra vires the Constitution?
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Old 11th May 2019, 00:09
  #63 (permalink)  
 
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Originally Posted by kaz3g View Post
Noted the HCA does not appear to have defined “trade” particularly but in the broader context of “trade and commerce”.

So riddle me this...We have a law ostensibly forbidding the carriage of goods by air for reward except under licence and leaving to an executive authority discretion whether to issue licences and on what terms. Such a law operates by reference to an act of trade or commerce, the carriage of goods for reward, a matter dealt with in s51(i) of the Constitution. Since it totally prohibits that activity, subject only to an unfettered executive dis- cretion, it authorizes interference going far beyond reasonable regu- lation in the interests of the general freedom set out in 51(i). Is that law then ultra vires the Constitution?
kaz3g,
Excellent contribution, the HCA (and other) authorities on "trade and commerce" are on point, where "trade" is referred to in aviation legislation..

As for the constitutional situation, as some of you will know, the Commonwealth has NO constitutional power over aviation, it is state's rights.

Thus, the power of CASA (the Commonwealth) itself rests on highly disputed grounds, HCA cases, particularly most recently the Gordon Below Franklin Dam case.

So, CASA's powers derive from a High Court decision in a matter involving the enforcement of an international environment preservation treaty --- or, more generally, CASA's powers derive indirectly from the Cth treaty making powers under the constitution.

So, does CASA regulation amount to restraint of trade between states ---- good question ---- got a lazy $2M +, to try and find out. It has long been discussed in certain circles, including in the "Canberra Bubble", and CASA (or "the Department") has rested easy on the fact that, in this day and age, nobody is going to stump up the money.

Pu another way, CASA's whole house of cards depends on nobody having the resources to challenge it through to the HCA --- and win.

Tootle pip!!
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Old 11th May 2019, 01:10
  #64 (permalink)  
 
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Originally Posted by kaz3g View Post
Noted the HCA does not appear to have defined “trade” particularly but in the broader context of “trade and commerce”.
That seems to make it difficult to use that definition for this regulation. Presumably "trade and commerce" is broader than "trade", so "goods for the purposes of trade" would be less broad than "goods for the purposes of trade and commerce".

An addendum to my previous post, CAR 206 is for the purpose of subsection 27(9) of the act, so bringing in the subsection 27(9) wording the actual AOC requirement is for:
Flying or operation of an aircraft for the purpose of carriage, for the purposes of trade, of goods being the property of the pilot, the owner or the hirer of the aircraft
(2 separate purposes there, the purpose of flying the aircraft and the purpose of carrying the goods.)

So it seems to be arguable that you can carry goods for trade as long as that is not the (or one of the) purposes of the flight.
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Old 11th May 2019, 03:47
  #65 (permalink)  
 
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Originally Posted by andrewr View Post
That seems to make it difficult to use that definition for this regulation. Presumably "trade and commerce" is broader than "trade", so "goods for the purposes of trade" would be less broad than "goods for the purposes of trade and commerce".
snip
So it seems to be arguable that you can carry goods for trade as long as that is not the (or one of the) purposes of the flight.
Andrewr,
Are you, by any chance, a Member In Good Standing of the Honourable Company of Barroom Barristers and Bush Lawyers International, Australian Division??

I am reminded of the interminable discussions, on PPRuNe from time to time, on the alleged subtle differences between "may", "must" and "shall" as used in AU aviation regulation ----- entirely oblivious to HCA and other authorities on such statutory interpretation.

Do yourself some serious searching, you may well find it quite enlightening.

Suffice to say, previous attempts to rewrite CAR 206 have all been unsuccessful. Do bear in mind, CAR 206 was the product of a move to ELIMINATE the concept of "hire and reward" as the primary determinant in what operation required an AOC, by whatever name, and make an AOC requirement a broader determination, that is, with a wider catchment. The aborted "Private Operations AOC" CASA proposal was aimed at the "LAME and toolbox, barrister and briefcase" etc.

Also, do not neglect the fact that, in principle, all Australian aviation regulation addresses a "commercial" operation, and private flying is treated as an exception to the "general rule", with carve-outs as necessary, a very messy way of establishing a regulatory framework. This is in contrast to most countries, where regulatory life starts at the "private" level, and the regulatory burden increases as the "consequences" part of the "risk and consequences" determination increases.

This is well illustrated by FAR 91, through 135, 125, 121 (for fixed wing) works ---- US has no "aerial work" category. Likewise NZ and many other countries.

It remains to be seen whether CASR 91, 133/135/121 will be a better outcome in this respect, versus CAR 206, but I doubt it.

Tootle pip!!
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Old 11th May 2019, 06:25
  #66 (permalink)  
 
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Originally Posted by LeadSled View Post
Are you, by any chance, a Member In Good Standing of the Honourable Company of Barroom Barristers and Bush Lawyers International, Australian Division??
One of us is speculating about High Court challenges to CASA's authority to make the rules, the other is discussing existing rules which are literally part of the PPL syllabus.

This exact question was part of the oral exam portion of my PPL test, specifically the scenario in post 35. I said it was not allowed under a PPL and was judged wrong. I was told I needed to read and study these rules more carefully, so maybe we can blame this all on the ATO!

I don't know a better way to figure this stuff out than carefully reading the rules. It seems better than one alternative I have seen, which was a vote between 3 flight instructors.

I may be wrong, I have been wrong before, but that is one reason I put references in my posts. It allows people to see how I reached a conclusion, provides a framework to build a counter argument.
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Old 11th May 2019, 06:37
  #67 (permalink)  
 
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The RAAF is paid, by the incumbent government, to transport munitions to foreign countries. Some of the aforementioned arguments suggest the RAAF requires an international AOC, CPL holders, and submit a tax return.
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Old 11th May 2019, 09:03
  #68 (permalink)  
 
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andrer,
Were you speculating, I certainly was not, re. the authority of the Commonwealth to make legislation for the administration of civil aviation. The HCA cases are multiple and go back to the (from memory) the late 1920s, and the original Air Navigation Act only dates from 1920. Indeed, the Commonwealth lost a referendum in 1937 that sought to give Canberra complete control of all matters civil aviation.

tio540.
Simply wrong, civil aviation legislation does not apply to state aircraft, which includes all military aircraft.

Tootle pip!!

.
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Old 11th May 2019, 10:48
  #69 (permalink)  
 
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Originally Posted by LeadSled View Post
So, does CASA regulation amount to restraint of trade between states ---- good question ---- got a lazy $2M +, to try and find out.
...
Put another way, CASA's whole house of cards depends on nobody having the resources to challenge it through to the HCA --- and win.
Looks like speculation to me...
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Old 12th May 2019, 02:48
  #70 (permalink)  
 
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Originally Posted by tio540 View Post
The RAAF is paid, by the incumbent government, to transport munitions to foreign countries. Some of the aforementioned arguments suggest the RAAF requires an international AOC, CPL holders, and submit a tax return.
CASA regulates civil aircraft operations, not military per the CAA. The military is a law unto itself..

kaz
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Old 12th May 2019, 03:43
  #71 (permalink)  
 
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Originally Posted by andrewr View Post
Looks like speculation to me...
Andrewr,
Either we have a different meaning to "speculation", or a different reading and interpretation.
I asked a question and provided a mechanism to answer said question.
Knowing quite a bit about the history of aviation and the HCA, and not just matters of airsafety administration, I would not speculate on the possible outcomes of any aviation matter before the HCA.
Interestingly, and once again, nobody has commented on how the matter of defining "private flying" in Australia, versus the countries, to which we usually compare ourselves, and how we wind up in an unnecessary legislative shambles, as a result.
Tootle pip!!
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Old 12th May 2019, 03:46
  #72 (permalink)  
 
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Originally Posted by andrewr View Post
That seems to make it difficult to use that definition for this regulation. Presumably "trade and commerce" is broader than "trade", so "goods for the purposes of trade" would be less broad than "goods for the purposes of trade and commerce".

An addendum to my previous post, CAR 206 is for the purpose of subsection 27(9) of the act, so bringing in the subsection 27(9) wording the actual AOC requirement is for:
Flying or operation of an aircraft for the purpose of carriage, for the purposes of trade, of goods being the property of the pilot, the owner or the hirer of the aircraft
(2 separate purposes there, the purpose of flying the aircraft and the purpose of carrying the goods.)

So it seems to be arguable that you can carry goods for trade as long as that is not the (or one of the) purposes of the flight.
yes, it’s all as clear as mud whereas legislation should be written in plain English and its meaning made clear.

“carriage, for the purposes of trade, of goods being the property of the pilot, the owner or the hirer of the aircraft...”

The notion of “trade” is not defined in the Act so we need to look at the ordinary meaning.

Collins defines Trade as the activity of buying, selling, or exchanging goods ....between people, firms, or countries. Webster takes it a step further saying trade is the business of buying and selling or bartering commodities: commerce.

To offend the provision, the pilot would be carrying goods (immensely broad ordinary meaning of “goods”), which are hers or belong to the aircraft owner or hirer in order that they be sold or because she or those others bought them while engaging in a commercial activity: commerce.

On this basis, it’s my personal view (I do not practice in this area) that neither the engineer’s box of tools or the barrister’s brief case are goods falling within the sub-section (note: services are not proscribed). But the grease in the grease gun and spare 0 rings will fall foul if charged out after the event.

And that then raises the question as to the legality of selling the goods before uplift and delivering them free. Should the LAME invoice his spares and bits before he leaves his base to do the work?

i occasionally use my aeroplane as a means of travelling for business purposes and I take my laptop and briefcase with me.


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Old 12th May 2019, 06:14
  #73 (permalink)  
 
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what’s legal or right has nothing to do with anything. CASA is a cashed up dumb bull elephant that can capriciously decide to squash you and there is nothing you can do about it. That is the problem.

If the law was written in plain english backed up by an explanatory text we wouldn’t be having this discussion and Australian GDP would be a little higher.
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Old 12th May 2019, 07:37
  #74 (permalink)  
 
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Originally Posted by Sunfish View Post
what’s legal or right has nothing to do with anything. CASA is a cashed up dumb bull elephant that can capriciously decide to squash you and there is nothing you can do about it. That is the problem.

If the law was written in plain english backed up by an explanatory text we wouldn’t be having this discussion and Australian GDP would be a little higher.
Sunfish,
Precisely!!
Aviation regulation is written to CASA prescriptions and policy, for: "Lawyers and judges, for the safe conviction of pilots and engineers".
Tootle pip!!
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Old 12th May 2019, 08:10
  #75 (permalink)  
 
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Originally Posted by Pecterinium View Post
Sorry, could you enlighten me on how I would be paid less for being a pilot and a therapist then if I was a therapist alone?
Seems you don't quite understand what I wrote.

Therapist = $60+ per hour.
Pilot = Anywhere from $0 to $50 per hour (plenty would do that for free for the experience)

If you were employed as a therapist and were out flying an aircraft instead, would your employer pay you more or less than your therapist salary? If you're a PPL, he's not making a profit from your flying.

Mixing any flying for "work" at any other level than a sole operator is murky at best at so many levels, other than perhaps at the top-end of town like Crown Casino, but mobs like that usually have an AOC, unlike VicPol from what I've read here.



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Old 12th May 2019, 22:45
  #76 (permalink)  
 
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Originally Posted by kaz3g View Post
To offend the provision, the pilot would be carrying goods (immensely broad ordinary meaning of “goods”), which are hers or belong to the aircraft owner or hirer in order that they be sold or because she or those others bought them while engaging in a commercial activity: commerce.
That definition seems to be commonly used, including (reportedly) by CASA.

However I would argue that CAR 206 is just a list of purposes, on its own it does not create any provisions that could be offended. The provision is in S27(9) of the act, so that wording needs to be included:

To offend the provision, the pilot would be flying an aircraft for the purpose of carrying goods (immensely broad ordinary meaning of “goods”), which are hers or belong to the aircraft owner or hirer in order that they be sold or because she or those others bought them while engaging in a commercial activity: commerce.

Originally Posted by kaz3g View Post
On this basis, it’s my personal view (I do not practice in this area) that neither the engineer’s box of tools or the barrister’s brief case are goods falling within the sub-section (note: services are not proscribed). But the grease in the grease gun and spare 0 rings will fall foul if charged out after the event.
Would carrying the grease and O rings for sale really be considered a purpose of the flight?
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Old 13th May 2019, 00:21
  #77 (permalink)  
 
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What should be obvious at this point of the discussion is that, whilst there may well be conditions upon when a PPL may conduct a Private Operation in the course of his employment, it’s very easy to unknowingly cross the Commercial line. Ignorance in the eyes of the law is no excuse. You the PPL is still going to be the one who is prosecuted and unlike a road traffic offence had you known, is likely to be more than you would have been willing to pay.
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Old 13th May 2019, 00:24
  #78 (permalink)  
 
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The use of words and spitting of hairs...This could go on forever...just like CAsA, most unfortunately for Oz aviation.
So as PPL flies along in his own aircraft and the camera on board goes click and exposes some film...its considered a heinous crime, criminal penalties apply..
The fixed camera on board is "goods" but not for sale, being transported across the gaffa .as reqd.
Later, the film is processes, prints produced and sold as needed for the poor PPL photographer to try and make a living.
Any "commerce" is post flight, and NOTHING to do with the ;safety' of the flight which has been conducted under the flight rules, the pilot is duly licenced, and the a/c* has an MR..And if the pic was in controlled airspace* , clearances were approved.
(* examples of the BS CAsA come up with CAsA FOI tells a client , shock horror ..'he even flew in controlled airspace ' and 'think of his a/c as a rusty old bus he got off the dump, you wouldnt let yr kids fly in that would you' To cobble up a "safety" issue any old BS will do.!! And then some.
I suppose all this sort of behavior keeps those drongos happy)

What CAsA need, and have is TOTAL control regardless of common sense, the realities of life, the praticalities of business
Jobs and Growth.. Theirs.
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Old 13th May 2019, 02:27
  #79 (permalink)  
 
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Originally Posted by Squawk7700 View Post
unlike VicPol from what I've read here.
Interestingly, re. the Australian Constitution and the Civil Aviation Act (Cth), it can be argued that aircraft operated by the states are NOT subject to Commonwealth law. With a similar (but not quite the same) situation in the US, even the FAA aircraft fleet is not bound by FAA regs.

This matter was examined on behalf of the NSW Police Air Wing some years ago, and it was determined that was the case, they could "go it alone", but the situation was muddied in that, among other things, PolAir aircraft possibly could be refused access to Commonwealth controlled airspace and aerodromes.. Again, there is little doubt that, under the Foreign Affairs powers of S.51, etc., of the Constitution, the Commonwealth has the power to promulgate controlled airspace, both military and civil.

The real reason, at the time, that NSW chose not to assert its rights was political, the relevant state Minister was more than happy to not have to carry the can for anything remotely related to "air safety"

The matter came up, because CASA was vehemently opposed to the use of night vision equipment in civil aircraft, despite the fact such had been used for many years by police and other emergency services in a laundry list of countries.

CASA apparently were of the view that swanning around among the powerlines with just a NighSun was "safer"???

Tootle pip!!

PS: In total, it took just over 15 years for CASA to cave in on night vision equipment, their parting shot was to make the regulation, both for fitment/maintenance and training/recency so costly and onerous that it would dissuade all but the most determined. Air Safety was NOT a genuine consideration.

Last edited by LeadSled; 13th May 2019 at 02:41. Reason: PS added
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Old 13th May 2019, 02:39
  #80 (permalink)  
 
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Would carrying the grease and O rings for sale really be considered a purpose of the flight?
Yes. CASA have form in threatening action against Pilots/Owners for such things

Mixing any flying for "work" at any other level than a sole operator is murky at best at so many levels, other than perhaps at the top-end of town like Crown Casino, but mobs like that usually have an AOC, unlike VicPol from what I've read here.
True. What we need are more people prepared to take legal action against the regulator and get some legal precedents set in place. However since that is often very expensive and futile people don't bother, so we are stuck with bad law.

What I find ridiculous, is that it is legal for 3 people to jump in a company van with private driver's licenses, drive 1 hour to a worksite, carrying all manner of goods and equipment. Yet the same 3 people jump into a company aeroplane with the same equipment and magically it becomes a commercial operation requiring an AOC. How does getting in aeroplane change the 'commercial' nature of the operation? Why is it not a commercial operation in a motor vehicle and bound by all the commercial vehicle regulations? Unfortunately though that is the world we live in.


CASA apparently were of the view that swanning around among the powerlines with just a NighSun was "safer"???
Just about says it all.
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