Position Paper

Brussels, 22nd October 2018 – EurECCA opposes current proposals to introduce staff “interoperability” on commercial airlines as a cost-saving business model as this could pose significant risks to the safety and social and legal aspects of cabin crew were it to be implemented.

What is interoperability?
Interoperability is a term mainly used for software development, describing two or more systems of communication with each other by using the same standards without restrictions. For airlines this would translate into cabin crews being shared within an affiliated group of companies or within an international holding across countries according to demand, without the need to undergo the current Operator Conversion Course (OCC). Instead they would fly for two or more AOCs on a daily, weekly or any time scale through crediting of training already undergone with another airline.

What are the problems?
For cost saving reasons crew member could be based in a low cost production area, working for several AOCs on a daily, weekly or monthly basis: working by “cross-OPS”.
This cost-saving model would not only impact several industrial laws, divergent occupational health systems or conflicting social security and tax legislation of different countries, but could lead to shutting operations in sites throughout Europe where labour costs are higher which could, as a result, lead to social dumping.
The key areas of negative impact are outlined below.

Social & legal concerns
As well as the implications for the crew’s private and family lives, there are major legal aspects to consider.

  • Cabin crew interoperability being a form of employee sharing, would be illegal according to the labour law in many EU Member States;
  • Transnational interoperability could contribute to tax evasion and social dumping through the facilitation of letter box companies and the absence of clarity on applicable law to cabin crew. It can also be abused to downgrade working conditions.

Safety hazards

  • Human health and safety factors need to be taken into serious consideration. These include rostering and fatigue prevention, corporate safety culture, processes, procedures, manuals, cabin crew training, to name but a few.
  • The use of a single AOC is hence the only viable solution for maintaining acceptable levels of operational efficiency and safety. In an “interoperational” environment the constraints and risks mentioned above have the potential of jeopardising safety.

EurECCA therefore urges that, if interoperability is to be considered as a cost-saver that potential safety risks need to be seriously analysed and social aspects need to be examined, since working, living and health conditions could deteriorate.
For more detail on the specific details relating safety, social and legal concerns please see Annex on the following pages.

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Therefore EurECCA’s statement is unequivocal:
new cost saving business models of commercial air transport operators should never worsen safety, social, labour, health
and legal aspects of aviation employees.

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Annex
Details of specific social, legal and safety concerns – source European Cockpit Association (ECA) position paper of 24 July 2018: Crew Interoperability: the bigger picture https://www.eurocockpit.be/positions-publications/crew-interoperability- bigger-picture

Social & Legal Aspects

1.1. Labour law
There are serious legal aspects to be considered if the holder of the different AOCs is not the same employer of the pilots:

a.) Crew interoperability in the case of different AOCs and different employers: A worker is defined as a person who, for a certain period of time, performs services for and under the direction of another person in return for remuneration. The relation of subordination is essential for the definition of the employment contract. It is explicitly forbidden by many national laws that an employee is hired out to another employer unless it is through a subcontract agreement or through a formal temporary agency contract. Only some EU Member States allow employee sharing and most of those states would only allow it under specific conditions. For example, in France, Luxembourg and Belgium, it is subject to government authorisation as it is considered as a derogation from the basic principle of prohibition of secondment of staff. Austria and Germany require strategic employee groups as Temporary Work Agencies. Other requirements (maximum number of employees, geographical restrictions, type of workers that could qualify for such em- ployment, etc.) to operate under employee sharing statute might vary between countries.

b.) “Intra-group” Crew Interoperability: Intra-group “mobility” or the situation where con- tracts provide for the possibility for workers to work in different subsidiaries (units) of the same group having different AOCs is a controversial issue.

Some courts have considered that intra-group mobility can be considered legal, if it is done for technical and organisational reasons responding to the division of work inside a group of companies and if rights of the workers are guaranteed. However, when there is fraud, abuses of rights or of legal personality, the secondment of personnel – even if it is within the same group of companies – should be considered illegal. The question is then if the set-up for sharing employees within a group is not abusive and if the rights of the workers are guaranteed.

A key element is whether the group gets an economic gain through such (forced) mobility practices. It was considered that a group, through internal invoicing, would not have any gain from such use of the staff if the conditions of the workers were not jeopardized.

However, recent caselaw has nuanced this by recognising that companies do obtain an economic gain from intra group mobility resulting from an increase of the flexibility in staff management and the cost savings generated by it (French Cour de Cassation, case n° 09-69175 of 18/ July 2011).

c.) When Crew Interoperability requires pilots to operate from a country outside his or her habitual place of work, the rules on posting should be applied.

d.) Potential labour law problems:

  1. Which labour law does apply to the pilot?
  2. Contract issues:If contracts are different in the different airlines, which contract will the pilot follow at each time, wo will decide about vacation, leave, sickness?
  3. Can the pilot reject an assignment?
  4. When pilots are transferred to other airlines with lower conditions, is this not giving the employer the possibility to unilaterally change the pilot’s working conditions?
  5. Which collective agreements will apply? Are pilots of other units considered for the recognition of company councils? Can a union represent a pilot working in company who is not an employee of that company? Are those pilots recognised for the calculation of information and consultation rights? Could a pilot in a subsidiary be asked or forced to replace a striking pilot in another company (thereby de facto depriving workers from their ability to exercise – in a meaningful manner – their basic right to strike)? Can this pilot refuse the assignment? Can the pilot take part in an industrial action within a company where he or she regularly works but is where he or she is not a formal employee?
  6. If the pilot has issues concerning working conditions, where should he or she file his report?
  7. If a workaccident occurs during work in a company where the pilot is not an employee of that company, who is responsible?
  8. Who can initiate and process disciplinary procedures and decide on possible disciplinary measures? Could the different units where the pilot works issue disciplinary measures? What happens in case different units have different rules on disciplinary measures or have different opinions on a specific case?
  9. In case of legal  dispute, can the employee file a claim only against his or her employer in the contract or should it be filed against the subsidiary where the conflict arose? Can a subsidiary, that is not the official employer start legal proceedings against the pilot who is not an employee of that company?
  10. How will the parties determine their responsibilities or liabilities in the event of a dispute?
  11. In case of bankruptcy of one of the units: How are the other units involved or even responsible?
  12. Can the pilot be assigned to an agency that places pilots to other companies?

1.2. Impact on Employee Pay and Working conditions

a.) Collective agreement, social security and income tax: depending on the structure of the co-employment, employees changing from one placement to another could be sub- ject to a different collective agreement and a different wage level. This risks to open the door for companies ‘cherry picking’ where they base their crews and their AOCs (e.g. basing AOCs in the region with lowest wage levels/social security payments/labour right protections, etc.).

b.) The participation of employees in social dialogue structures: employees in employee sharing structures will have difficulties in engaging in collective bargaining and/or be rep- resented at every level.

c.) Commute and frequent relocation has severe impacts on employees

  1. In terms of social security, change in placement could be considered as the end of one job and the start of a new one, influencing the worker’s benefit levels.
  2. Determination of a real Home Base would become a real challenge.
  3. Placement/relocation has costs (both financial and in terms of time).
  4. Significantly increases level of flexibility and adaptability to different work environments (& locations) generates additional stress.
  5. Frequent commuting and placements negatively affect worker's work–life balance and ability to combine with family/private life.

1.4. Social Security

Crew Interoperability would provide the operator with the possibility of freely rotating crew members around their transnational network, between different bases and countries. Therefore:

a.) EU wide Interoperability would increase the uncertainty on which entity is responsible to determine the Home Base of a crew member.

b.) Frequent changes in Home Base might result in employees losing their rights[3]: where can they receive medical treatment, what about family benefits, losing proof of good conduct, maternity, pension...

c.) Clear rules would be necessary to avoid regulatory ‘forum shopping’ practices and to fully ensure tax and social security regularity for crew members at all times.

1.5. Job quality and job satisfaction

Some aspects of working conditions related to Crew Interoperability that are likely to lead to workers not being satisfied with their working conditions, incl. lack of contact with company management (feeling that you are no longer part of it), feeling that your job and career advancement is at risk because of lack of clarity, perspective and real ties with one employer.

The European Foundation for the Improvement of Living and Working Conditions carries out periodical assessments of the working conditions in Europe. Jobs are placed in a scale going from ‘high flying’ to ‘poor quality’. The last edition of the survey in 2016[4] shows that 23% of jobs qualified as ‘poor quality’ are temporary agency employees jobs (the second largest type of employment in this category). Jobs are considered ‘Poor quality” because:

a.) Jobs rank lowest in terms of skills and discretion as well as in earnings and prospects.

b.) Monthly earnings are about a third of those in the ‘high flying’ profile.

c.) About a third of the workers in this profile fear they may lose their jobs within six months and 45% strongly disagree that their job offers good prospects for career advancement – about twice the proportion of workers on average for both dimensions.

Facilitating interoperability without addressing the effects of describing above, will lead to a new form of precarious and dependent employment and not to quality jobs. Interoperability cannot be considered only on economic and technical basis but taking into consideration the impact on the individuals. A pilot ‘detached’ temporarily to a subsidiary of the same group, which is a form of interoperability even if for the moment an Operator Course is needed, explains that the management of the company in which he is detached has no disciplinary powers on him. What is the effect of such arrangements for the company culture in the hosting airline? Is it durable? Can it be done otherwise without contravening the labour regulations?

Safety Aspects

1.1. Company & Safety Culture

Crew Interoperability creates a number of challenges when it comes to maintaining a consistent company culture.

This applies in particular to the need to create and maintain a consistent and robust safety & reporting culture across operators and AOCs as well as across national boundaries and national cultures. It is widely known that creating and maintaining a functioning safety & reporting culture is a challenge in any airline[5], requiring significant investment, leadership and trust among employees and vis-à-vis their management. Given the highly flexible, transnational and transient nature of Crew Interoperability set-ups and due to the loosening of the traditional links between employees and their company / management, significant efforts and resources would be required to prevent a downgrading of the safety & reporting culture.

For example, differences not just in safety culture but also in general company culture across the different operators, can introduce potential safety challenges. One key aspect is Occurrence Reporting which needs to be very mature within each of these AOCs and sharing of data and analysis between these AOC safety departments is crucial, as it the systematic coordination into Operations and training departments.

Further, there is a big risk that there will be poor Peer Support available in this sort of transient set-up. Peer Support has been proven to be the best defence against mental health and medical fitness issues developing into safety risks (see e.g. EASA rulemaking post Germanwings accident). Effective Peer Support will most likely be lacking in an interoperability environment, especially where this environment is misused by management.

1.2. Operational & procedural challenges

Besides these issue with safety and company culture, there are a number of related operational challenges and hazards that could translate in to safety risks:

For Crew Interoperability to actually work – from an operational safety management perspective – pilots would need to operate with identical Standard Operating Procedures (SOPs) across the different operators. “Almost similar” SOPs will not be enough. Especially emergency checklists and procedures will have to be 100% aligned as will relevant documentation such as OpsManual-A, OpsManual-B and the Quick Reference Hand-book (QRH). This includes performance calculation methods, whether software or paper based, should be identical across operators to avoid safety critical errors to happen.

In these documentations, limitations, applicability of weather and other minima and flight procedures (incl. procedures/approvals such as MNPS, ETOPS, RNAVs, etc.) will have to be identical. Additionally, fleet & operating notes will have to be distributed and coordinated across different AOCs to ensure crews are adequately up to date when moving from one AOC to the next. It is unlikely that such Crew Interoperability could be achieved without at least a minimum familiarization programs including line flights.

Currently the Operator Conversion Course (OCC), Part Ops (ORO, TC CC, FC) requires such an OCC not only for Flight Crew but also for Cabin Crew and Technical crew. For a good reason: these procedures have to be identical as well, since they are safety critical and there are important crossovers (e.g. for CC: Emergency and evacuation procedures, for TC: use and application of MEL, use and form of TLB). Also, any attempt to reduce the issue of Interoperability to be one of only OCC Training content is to simplify things to an extreme. OCC training is one part of the Crew Interoperability issue, but neither the solution nor the one single enabler. More generally speaking: to reduce Crew Interoperability to only be a matter of crew training is to oversimplify the hazards and safety related challenges for the respective operators’ SMS, as well as for the NAAs’ safety oversight (see 3.2.3.).

Finally, there are numerous other issues to be considered, both by the operator(s) and the national oversight authorities, such as:

a.) FTL schemes: e.g. each operator has the obligation to ensure a legal roster for each and every crew member under any combination of ‘crew-AOC-hopping’, including disruptive early/late duties & transitions etc. For this to function, a very high robustness of rosters must be guaranteed.

b.) Fatigue Risk Management (FRM): apart from ‘legal’ rosters, Crew Interoperability requires a fully functional, and externally audited, Fatigue Risk Management system encompassing all involved operators and with a centralized Safety Department. Such FRMS must include an effective, non-punitive fatigue reporting system, an operational Fatigue Safety Action Group (FSAG) with crew representatives involved and periodic fatigue surveys among flight and cabin crew. Recommended FSAG actions must be implemented by all operators involved.

c.) Home Base: CS FTL.1.200, requires the pilot’s Home Base to be “a single airport location assigned with a high degree of permanence.” Crew Interoperability would entail frequent outplacements and relocations. How can ‘Home Base’ be defined and assigned if a crew member can interoperate to a potentially unlimited extent, especially as Home Base is linked to the place from where a crew member habitually carries out his/her duties?

d.) Fully functioning and mature SMS (incl. reporting schemes) in each operator & robust system in place to combine data, data analysis and take action.

e.) Other issues, such as Radiation (there has to be a ‘radiation log’ by the operator); CRM issues; Security issues (very different background checks and their acceptance across Europe); Medical issues (data protection/storage; different interpretations of the regulation across Europe; etc.).

1.3. Cooperative Oversight

Crew Interoperability requires very good & close cooperation between national competent authorities, via so-called cooperative oversight. And it must always be absolutely clear – to the operator, the crew and the authority – under which AOC each and every flight is operated.

Equally, each NAA involved in overseeing a Crew Interoperability set-up, must have the resources and expertise to oversee such practices to ensure no safety risks are created. This means the ability for in-depth, mature oversight, pooling of expertise, data and information across borders & different NAAs, as well as the ability to cope with different languages, national cultures, and interpretations. While cooperative safety oversight between the Danish, Swedish and Norwegian NAA might be working quite well, such cooperative oversight between e.g. Lithuania, Portugal and Greece (or many other combinations of NAAs) might be a challenge.

Of particular relevance is here that EASA standardization visits over the past years have demonstrated that several NAAs are not anymore up to standard when it comes to properly overseeing their operators, due to a lack of human & financial resources and adequate expertise. Equally, many NAAs are still ill-equipped to audit operator’s safety risk management and performance-based safety management. Finally, in some key areas – such as FTL – EASA standardization visits show that up to 70% on NAAs are well below standard. Given the importance of full compliance with FTL rules and of a fully functioning FRM in place, these results are a major hurdle for effective oversight of Crew Interoperability set-ups.

In its “Practical Guide on Management of hazards related to new business models in CAT operations”[6] published in August 2017, EASA clearly identified the need for cooperative safety oversight, as Crew Interoperability will by definition involve multiple NAAs.[7] However, the challenges to make such cooperative oversight happen and effective, are not (yet) addressed.

1.4. Safety Hazards identified by EASA

In its “Practical Guide on Management of hazards related to new business models in CAT operations”, the Agency identified six hazards related to interoperability where crew training is one of the six. The definition used by EASA in the Practical Guide covers more than Crew Training and the Guide confirms that reducing Crew Interoperability to only be a matter of crew training is to oversimplify the hazards and safety related challenges for the respective operators SMS.

 About EurECCA

Established in Brussels in 2014, the European Cabin Crew Association, EurECCA, represents, protects and develops the rights and needs of cabin crew all over Europe. It is composed of cabin crew unions from European Union Member States as well as accession and bordering states and represents some 35,000 cabin crew accounting for 70% of all organised cabin crew in Europe. EurECCA has no political connections.

EurECCA’s work is mainly around cabin and passenger safety and cabin crew health and work and living conditions.

EurECCA represents, protects and develops the rights and needs of cabin crew all over Europe

Contact Office: +32 470737165

For more information:
Christoph Drescher, President
Tel: +49 15162432127

Luciana Passo, Vice President
Tel: +35 1932417504

Xavier Gautier, General Secretary
Tel: +33 787060342