Crew Interoperability enables the possibility for a flight crew member to fly for two or more AOCs without undergoing an Operator Conversion Course (OCC).
There are several fields where Crew Interoperability facilitated by EASA rules could create legal challenges and obstacles and entail potential risk. In particular, Social & Legal, Safety, Data Protection, Anti-Competitive and Oversight & Accountability Aspects could be affected.
Crew Interoperability being a form of employee sharing, this would be illegal from a Labour law aspect in many EU Member States and can be described as Atypical Employment.
Transnational interoperability could contribute to social dumping through the facilitation of letter box companies / regulatory forum shopping and the absence of clarity on applicable law to aircrew. It can also be abused to downgrade crews’ working conditions.
Crew Interoperability raises not only legal & social questions, but also many safety issues that need to be addressed in a holistic, consistent manner. These are related to human factors, rostering and fatigue prevention, corporate safety culture, processes and procedures, aircrew training, etc. – as well as the implications for the crew’s private and family lives.
Crew Interoperability poses a strain for operators, crews and national aviation authorities alike as compliance and oversight is complex and can involve several different national laws.
The use of a single national AOC is the only and best solution for the operational challenges like maintaining an adequate level of efficiency and safety in an “interoperational” environment and constraints for the operator concerning e.g. similarity of manuals, procedures and corporate culture.
The alternative approach is the use of case-by-case exceptions based on AltMoCs with targeted and adequate guarantees of workers’ rights and oversight on safety, social and legal aspects.
Any potential future rulemaking must be done under a dedicated RMT, involving relevant expertise (incl. from the social, legal and social security side), and involve an in-depth Impact Assessment, as the topic is complex and its implications and impacts must carefully and comprehensively be assessed.
In aviation, ‘interoperability’ can be considered as the capability of two or more networks, systems, components or applications to exchange information and to be able to use this information for technical or operational purposes, so enabling them to operate effectively together.
Airlines and training schools aim to translate this concept – which in principle is designed for “networks, systems, components or applications“ – to people, and invented the concept of “Crew Interoperability.” Crew Interoperability would refer to the possibility for a flight crew member to fly for two or more AOCs through crediting of training already performed.
This would be a change of the practice that a flight crew member must do an Operator Conversion Course (OCC) each time he/she changes the AOC. It could also imply that a pilot would be asked to work for an airline where he or she is not an employee. It would de facto turn air crew into an interchangeable component that would be ‘plugged’ in and out of different AOCs at a daily, weekly or any time scale.
EASA did an initial assessment of Crew Interoperability set-ups, identifying several important safety hazards and oversight challenges that would need to be addressed to ensure that – if such set-ups are used – they do not result in lower safety levels. The Agency currently deals with this matter in RMT.0599, developing a ‘concept paper’ on the various aspects and repercussions any move to Crew Interoperability would entail.
The main driver behind Crew Interoperability is cost savings and additional flexibility that it would give to only those operators having more than one AOC or to different operators having different AOCs but working together.
This position paper wants to assess several aspects of Crew Interoperability. It mainly focuses on the challenges and the potential risks of the concept. Its aim is to point out questions that need to be answered and risks that need to be mitigated for Crew Interoperability to be beneficial and acceptable for all involved: Crew, Operators and National Aviation Authorities.
Companies like SAS have already used similar concepts in the past. However, these operations should be placed in a specific context. Historically SAS has a single AOC and are under joint cooperative oversight from three states Competent Authorities/NAA in the same region. The authorisations to use mixed crews were granted individually either by grandfather rights of the companies or via AltMoCs specifying in a very detailed manner, the obligations of the organisations and oversight authorities concerned. Already now, any company wanting to share their crews on multiple AOCs can do so via an AltMoC.
There are several fields where the authorisation of Crew Interoperability in EASA rules could create challenges and obstacles and entail potential risks:
- Social & Legal
- Data Protection
- Oversight & Accountability
3.1 Social & Legal Aspects
3.1.1. 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 employment, etc.) to operate under employee sharing statute might vary between countries.
b.) “Intra-group” Crew Interoperability: Intra-group “mobility” or the situation where contracts 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:
- Which labour law does apply to the pilot?
- 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?
- Can the pilot reject an assignment?
- 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?
- 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?
- If the pilot has issues concerning working conditions, where should he or she file his report?
- If a work accident occurs during work in a company where the pilot is not an employee of that company, who is responsible?
- 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?
- 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?
- How will the parties determine their responsibilities or liabilities in the event of a dispute?
- In case of bankruptcy of one of the units: How are the other units involved or even responsible?
- Can the pilot be assigned to an agency that places pilots to other companies?
3.1.2. 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 subject 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 represented at every level.
c.) Commute and frequent relocation has severe impacts on employees
- 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.
- Determination of a real Home Base would become a real challenge.
- Placement/relocation has costs (both financial & and in terms of time).
- Significantly increases level of flexibility and adaptability to different work environments (& locations) generates additional stress.
- Frequent commuting and placements negatively affect workers’ work–life balance and ability to combine with family/private life.
3.1.4. 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: 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.
3.1.5. 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 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?
3.2. Safety Aspects
3.2.1. 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, 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.
3.2.2. 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 Handbook (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 centralised 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.).
3.2.3. 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 standardisation 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 standardisation 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” published in August 2017, EASA clearly identified the need for cooperative safety oversight, as Crew Interoperability will by definition involve multiple NAAs. However, the challenges to make such cooperative oversight happen and effective, are not (yet) addressed.
3.2.4. 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.
3.3. Data Protection Aspects
A brief outline of Crew Interoperability was presented to the Data Protection Commissioner of Ireland and concerns were noted about how pilots’ data would be circulated among several AOCs (Companies), and a complete case study was requested by the Commissioner for an in-depth assessment.
Systems for accessing Flight Data are company based and often subject to detailed Protocols governing data use. How would a pilot who is not an employee of the company going to be protected against unfair use of flight data? Can a company obtain, store and process data of pilots that are not their employees? How would the pilot be granted the right to access personal data from an airline where he or she is not an employee? How is medical data treated and protected?
Regarding fatigue logs and flight hours, how will this data be shared between the employer company and a third party without breaching the pilot’s privacy?
3.4. Anti-Competitive Aspects
A big holding company could have a pool of pilots and move these around several of their smaller operators within their holding group. This could entail the hiring of these pilots in the country of cheapest labour, most lax labour laws, and lowest social security requirements, which, in turn, would provide a significant (unfair) competitive advantage over other single AOC operators. This could create an unlevel playing field within the European aviation market to the detriment to smaller single AOC operators and operators that for other reasons do not wish to use such Crew Interoperability set-ups or cannot do so e.g. for legal or industrial relations reasons.
3.6. Oversight & Accountability
A company with the freedom of Crew Interoperability across Europe could pick and choose which regulatory/oversight authority to ‘do business with’. This may put undue pressure on national authorities to retain current or attract new ‘business’, potentially resulting in authorities competing against each other for this ‘business’. A sort of ‘forum shopping’ for the regulator who interprets legislation in the way a company wants could very occur. Especially if Crew Interoperability legislation is poorly regulated, for example using ‘soft-law’ Guidance Material and Acceptable Means of Compliance – instead of ‘hard-law’ Implementing Rules – this ‘forum shopping’ will become a reality.
Crew Interoperability brings a significant risk of lack of accountability. This is a serious issue, e.g. when a pilot operates for potentially 5 or more AOCs during a week’s work. Who is accountable for this pilot? Which CEO, which head of Air Safety, which Chief pilot? And which national authority? If a serious incident or accident occurs: Where does the ‘buck’ stop? As previous accidents have shown, ‘virtual airlines’ with multiple, overlapping and unclear lines of accountability present a real safety risk and were therefore banned, due to horrific safety records due to ‘lack of accountability’. Allowing for Crew Interoperability risks to ‘unlearn’ the lessons drawn from previous accidents and would put complex legal challenges in front of the national authorities that are involved in the oversight of such complex set-ups.
Crew interoperability might be a desired commercial target of certain airlines to obtain enhanced flexibility and a competitive edge over their competitors. In certain limited circumstances, Crew Interoperability might even be desirable and beneficial for the employees involved.
However, the concept is faced with the reality of complex and non-harmonised labour laws throughout Europe and with the reality of complex and specific company cultures in every airline. A single European labour law system would be the solution for the many complex legal issues posed by transnational job-sharing.
There are some, very few cases where airlines are already using Crew Interoperability. Those are specific and exceptional cases, and the legality of these set-ups with regards to labour law, social security legislation or safety rules has not been challenged yet. In any case, where Crew Interoperability exists, several specific measures have been put in place to avoid abuse and to ensure that the authorities concerned have proper monitoring and oversight, both from a safety perspective and from a social & legal perspective.
The European Parliament, Council of the EU and European Commission recalled in their agreement on Better Law-Making: “the Union obligation to legislate only where and to the extent necessary, in accordance with Article 5 of the Treaty on European Union on the principles of subsidiarity and proportionality.” The Three institutions agreed that ‘Impact assessments should cover the existence, scale and consequences of a problem and the question whether or not Union action is needed. They should map out alternative solutions and, where possible, potential short and long-term costs and benefits, assessing the economic, environmental and social impacts in an integrated and balanced way and using both qualitative and quantitative analyses.”
It is therefore imperative that, before any rule-making exercise is considered, the European Commission and the Agency:
- demonstrate the need for a new rule or a rule change (be it at hard-law or soft-law level);
- demonstrate that the benefits of such new rule would be greater than the negative impacts it would create;
- take into account not only safety aspects but also social, legal, oversight and other relevant aspects and impacts;
- consider alternative measures to a rule change that would have less negative impacts.
ECA considers that the many issues & problems raised by Crew Interoperability set-ups warrant a thorough review of Crew Interoperability entirely on its own under a separate RMT and a comprehensive Impact Assessment. Such a RMT should involve relevant expertise (incl. from the social, legal and social security side) to see what would be necessary in terms of effective regulation and controls over business set-ups which could be misused by the industry easily, be poorly overseen and be creating liability & accountability issues – with potentially significant negative consequences.
Following our initial examination, the negative safety, social, legal and regulatory impacts of potentially facilitating Crew Interoperability would by far outweigh the commercial benefits it could bring to a very small number of operators. An in-depth study and Impact Assessment on potential effects of such interoperability set-ups and how any related rule change could be misused by the industry if not correctly controlled should confirm or infirm our analysis.
An alternative less complex and disruptive – and hence more realistic – approach would be to continue with case-by-case examinations and exceptions (e.g. based on an AltMoC), providing three basic types of guaranties, i.e. that
- the rights of the employees are fully protected at all times and in all territories where Crew Interoperability is planned,
- all safety concerns are fully addressed to the satisfaction of the authorities, and that
- Effective cooperative oversight is in place, both for the safety aspects and the social / legal aspects involved.
However, in many cases, the use of a single national AOC would still be the best solution for the operational challenges like maintaining an adequate level of efficiency and safety in an “interoperational” environment and constraints for the operator concerning e.g. similarity of manuals, procedures and corporate culture.
If EASA insist on pushing ahead with rulemaking, this must take place in a dedicated RMT (see above), and it must be ensured that the criteria which would allow Crew Interoperability to take place are extremely strict and guarantee the safety of the operations, seamless cooperative safety oversight, compliance with labour law systems and that interoperability cannot downgrade working conditions of aircrew (e.g. through its use as an industrial weapon, through regulatory forum shopping etc.).
 For details see below & “Practical Guide on Management of hazards related to new business models in CAT operations” - https://www.easa.europa.eu/sites/default/files/dfu/Practical%20Guide%20New%20Business%20Models%20Hazards%20Mgt.pdf
 Final report at the demand of the European Commission, DG Research on “Social Security, Supplementary Pensions and New Patterns of Work and Mobility: Researchers’ profiles” by the expert group on “Social security, supplementary pensions and new patterns of work and mobility: researchers’ profiles”, September 2010; - Y. Jorens, D. Gillis, L. Valcke & J. De Coninck, ‘Atypical Forms of Employment in the Aviation Sector’, European Social Dialogue, European Commission, 2015, pg. 250.
 Sixth European Working Conditions Survey – Overview report, European Foundation for the Improvement of Living and Working Conditions, 17 November 2016
 London School of Economics (LSE) / EUROCONTROL study on pilots’ Safety Culture Perceptions within European airlines (2015, see link) shows that there are major challenges with building & maintaining robust safety culture. For example, only one out of three (39%) believes adequate training is provided when new systems and procedures are introduced; Less than half of respondents think they receive timely feedback on the safety issues they raise (45%); Half of the respondents believe there is no good communication in the company about safety; Only one out of three (37%) pilots have a high degree of trust in their airline’s management regarding safety; One out of five (20%) is not satisfied with the level of confidentiality of the safety reporting and investigation processes; etc.
 ”Interoperability refers to those cases where a holding or parent company wants to streamline its operations across several different AOCs of several Member States belonging to the same holding or parent company and to exchange aircraft and possibly crews freely. Interoperability requires good cooperation between national competent authorities, via so-called cooperative oversight”.
 Interinstitutional Agreement of 13 April 2016 between the European Parliament, the Council of the European Union and the European Commission on better law-making, Official Journal of the European Union, 12.05.2016 L123/1.