Technical Director, Hugh Faris

With the Civil Aviation Bill currently in the Select Committee phase of its passage through the legislative process, there is a once in a generation opportunity to make real and effective change for the better. This includes the concept of Just Culture as it applies in the aviation sector. NZALPA is concerned to ensure that Just Culture is correctly understood and appropriately reflected in what will become the new Civil Aviation Act.

The single most important part of an effective (positive) safety culture is recognised as “Just Culture”. Without Just Culture permeating through all aspects of our operations:

“Having blamed somebody for the event, the true failures in the system will not
be laid bare, which are often wrong procedures for the task, ill-defined responsibilities or managerial flaws. The effect is that further safety improvement is no longer possible or even frustrated, particularly when events are being criminally prosecuted. The conditions for the safety event remain until the dice are rolled again and another person finds himself in the same situation.”¹

A Just Culture is an atmosphere of trust where employees and other participants feel naturally inspired to bring to attention safety risks, even when they themselves may be implicated in the discovery of that safety risk. This is balanced by a clear understanding that unacceptable behaviour will not be tolerated.

There must be a balance achieved between a ‘no-blame’ culture and a ‘blame’ culture. It is this balance that results in the use of the word “Just”.

Although Just Culture has been promulgated by way of regulation in some jurisdictions worldwide since November 2015, there still seems to be a limited understanding of the concept, and often non-compliance with the concept.

A Just Culture is but one ingredient of an organisational culture.

“What is an organisational culture? What are the main ingredients of a safety culture? And, most importantly, how can it be engineered? The term ‘engineered’ is deliberate. The main principle applies to the acquisition of an effective safety culture. Whereas national cultures arise largely out of shared values, organisational cultures are shaped mainly by shared practices. Organisations with a positive safety culture are characterised by communications founded on mutual trust, by shared perceptions of the importance of safety, and by confidence in the efficacy of preventive measure. The four critical subcomponents of a safety culture: a reporting culture, a just culture, a flexible culture and a learning culture.” ²

Within New Zealand, the Protected Disclosures Act 2000 reflects similar objectives through its dual
purposes of facilitating disclosure and investigation of serious wrongdoing and protecting employees who
make such disclosures. However, this Act is more widely used in the public service and has seldom been utilised in a private aviation context. A similar balance between facilitating disclosure for investigative purposes and protecting those who provide evidence is found in the Commissions of Enquiry Act 1908. It has long been recognised in this area that witnesses to judicial proceedings should not feel intimidated or be incentivised to give false evidence. However, where the administration of justice requires this balance between disclosure and protection only when the public enter that system as witnesses, aviation safety requires this balance to be observed an ongoing basis in the day-to-day operation of aviation document holders.

New Zealand legislation also provides duties under the Health and Safety at Work Act 2015 that sit alongside and complement the interests of aviation safety. Occupational safety, health and environment (OSHE) (also referred as occupational health and safety or workplace health and safety) is a field concerned with the safety, health, and welfare of people at work. The primary difference between aviation safety management and OSHE systems is the intent. In many States employers have a legal duty
to ensure, so far as is reasonably practicable, the health and safety of their workers.

The intention of OSHE regimes is to meet the legal and ethical obligations of employers by fostering a safe and healthy work environment. Often a similar set of legal obligations are provided in OSHE regimes for other participants such as workers, suppliers and manufacturers. The intent of such a system is often to achieve compliance with standards by mandating duties that are proportional to the capabilities of the duty holders.

These issues are normally addressed under a different government body from the one that handles aviation matters.

As described previously, the heart of aviation safety management is not a mandate of duties but the promotion of a positive cultural environment. This requires a continuous balance between protection and disclosure.

For example, ICAO Annex 19 5.3.1 states that voluntary incident reporting systems should be non- punitive and afford protection to
the sources of information.3 Specific note is made that a non-punitive environment is fundamental to voluntary reporting. Too much of a focus on the mandate of duties can lead participants to focus solely on their own duties and fail to appreciate the importance of information sharing between participants of all kinds.

The ICAO Safety Management manual recognises that the sole purpose of protection is to ensure continued availability of information.4 It is important to realise that this is not motivated by self-interest: safety is best served by continuous and reliable information. For that purpose, Annex 19 mandates that national laws should strike an explicit balance between protection of safety information and administration of justice.⁵

Regulations preventing the inappropriate use of safety information are also important in the reinforcement of a positive culture. Participants should not be surprised by how the safety information they have provided is used. Annex 19 specifies that safety information should not be used in a way different from the purposes for which it is collected, unless a principle of exception applies.6 ICAO also specifies the principles of exception.7 However, it also stresses that those who do rely on a principle of exception to use safety information must be able to be held account to authoritative safeguards.⁸

The ICAO principles of exception set a high standard for the use of safety information by regulators (and disciplinary decision makers in an employment context). There are three grounds for exception. They require the regulator or decision maker to:

a) determine that there are facts and circumstances reasonably indicating that the occurrence may have been caused by an act or omission considered to be conduct constituting gross negligence, wilful misconduct or criminal activity; and

b) after reviewing the safety data or safety information, determine that its release is necessary for the proper administration of justice, and that the benefits of its release outweigh the adverse domestic and international impact such release is likely to have on the future collection and availability of safety data and safety information; or

c) after reviewing the safety data or safety information, determine that its release is necessary for maintaining or improving safety, and that the benefits of its release outweigh the adverse domestic and international impact such release is likely to have on the future collection and availability of safety data and safety information.

The standard on the regulator or decision maker under these exceptions is onerous.

Under exception (a) the regulator is required to determine to a standard of reasonableness that the occurrence may have been caused by conduct that constitutes gross negligence, wilful misconduct or criminal activity before it is permitted to use the information for enforcement purposes.

Under exception (b) there are three steps. The regulator is requiredto give consideration to the safety information itself. This is likely to involve an assessment of its credibility and relevance. It is then required to prove that disclosure is necessary to the administration of justice. It is also required to conduct an analysis of the benefits to justice against the adverse domestic and international impactsof use upon future collection and availability of safety information.

Under exception (c) there are also three steps. Again, this begins with consideration of the data itself. Then the regulator is required to prove the disclosure is necessary to the maintenance or improvement of safety. Finally, as with exception (b), the regulator must balance the safety interest against the interest in future collection and availability of safety information.

Thus, what has previously been described as a public interest exception to just culture, is not fairly categorised in such simple terms. The public interest exception must always be balanced against the interest of future collection and availability of safety information. The sole exception to this is where the regulator can reasonably prove (without presenting the safety information) that it has a prima facie case that the participant has acted in a way that constitutes gross negligence, wilful misconduct or criminal activity.

Another relevant nuance relates to the definitions of gross negligence and wilful misconduct. The ICAO
Safety Management Manual provides guidance to state legal systems on how these terms should be understood.

Gross negligence involves serious disregard or indifference to an obvious risk, regardless of whether the risk was fully appreciated by the participant. This can be described as recklessness. Within an aviation context, recklessness should not be given a broader meaning than this. Recklessness thus involves an objective assessment of what constitutes an obvious risk and a subjective assessment of the participants attitude toward that risk. Recklessness will only be established if the participants disregard of the risk is at a serious level or constituted indifference to the risk.

Wilful misconduct involves a wrongful act or omission which the actor either knows to be wrongful or is consciously indifferent to the question of whether it is wrongful or not. This test requires an assessment of the subjective state of knowledge of the participant. The participant must either know that their action or omission is wrongful, or be consciously indifferent (wilfully blind) to whether it is wrongful or not. The ICAO Safety Management Manual also clarifies that wilful misconduct and gross negligence are civil or administrative matters, whereas only criminal activity should be understood as a criminal matter. It would appear, therefore, that whether an act or omission is misconduct is a matter of whether it constitutes a failure to comply with an aviation document or the conditions attached to it – as opposed to a breach of a statutory provision or offence. Breaches by employees of an employer’s instructions or policies and procedures may also constitute misconduct within an employment context.

It is important to realise that providing for a just culture is not simply a matter of limiting the use of safety information in enforcement. It also involves creating limits on how employers may use safety information in an employment context. It involves promotion of disclosure through mandating a transparent and trusted reporting system. It involves holding those who seek to use safety information accountable to rigorous safeguards. Most of all, it involves designing systems and creating programmes around encouraging the sharing of relevant information without the fear that it will be used in a way other than the purpose for which it was disclosed.

Have a safe and happy Christmas and New Year.

¹ Kools and Brüggen, 2013
² Reason, James (1997) Managing the Risks of Organisational Accidents
³ ICAO Annex 19 “5.3.1 A voluntary incident reporting system shall be non-punitive and afford protection to the sources of the  information. Note 1.— A non-punitive environment is fundamental to voluntary reporting. Note 2.— Each State is encouraged to  facilitate and promote the voluntary reporting of events that could affect aviation safety by adjusting their applicable laws, regulations  and policies, as necessary.”
⁴ ICAO Doc 9859 Safety Management Manual 7.9.1.1 (d)
⁵ ICAO Annex 19 Appendix 3 1.1 (2nd Ed – 2016) 6 ICAO Annex 19 Appendix 3 2.2 (c)
⁷ ICAO Annex 19 Appendix 3 3
⁸ ICAO Annex 19 Appendix 3 2.2 (d)