Krzysztof Stefanski

The European social law as a guarantee of air traffic safety

Krzysztof Stefanski, University of Lodz

You get on the plane. You have struggled to drive to the airport, find a place to park your car, suffered the stress of going through security (are you sure you have put all the liquids in a transparent plastic bag?), and, eventually, queueing to the gate. Now you have taken your seat and have a few hours’ time to relax. Will you have some sleep? Or will you read a paper listening to music? Or will you do some work? It is going to take a few hours before you go ahead with your work or holiday plans. Now you are going to travel in comfort and safety flying several kilometres above the ground. Your comfort and safety are taken good care of by superbly trained, well paid and ready-to-work professionals. They are, aren’t they?

On 12 February 2009 at 22:17, not far from Buffalo, United States, a Continental Airlines’ Bombardier Dash 8-Q400 crashed while it was coming in to land. Fifty persons died - 44 passengers and five crew, and 1 person on the ground. None of the people on board survived. The aircraft was new – hardly a year in service. The reason was pilot error. Even though the airline did scrupulously abide by the laws and regulations concerning aircrew’s working hours, nobody bothered to pay greater attention to what pilots did between the flights. Both pilots of the flight 3407 lived quite far away from the airports from which they took off: the captain frequently stayed overnight in crew lounges at the airport, sleeping in an armchair or on a sofa, while the second pilot lived on the opposite coast of the USA and travelled the distance between work and home on cargo planes. The impact of fatigue and insufficient sleep on concentration was so enormous that physiologists compared it to the effect of having drunk quite a large quantity of alcohol. Was this an isolated case or do we still face danger?

One of the principles of the European Pillar of Social Rights adopted in 2017 is safe and flexible employment. In keeping with this rule, the Member States should support innovative forms of work which guarantee quality work conditions. Simultaneously, they should prevent employment relationships that lead to precarious working conditions. The principles that the European Pillar of Social Rights builds upon are further elaborated in the EU legislation. Employment of aircrew is addressed by the Council Directive 2000/79/EC of 27 November 2000 which sets the minimum standards for, e.g. working time and rest periods. These standards are of great significance for working time in air transport. Such work requires very high qualifications, continuous training, and perfect health condition. It obviously involves specific working patterns, i.e. frequent changes of the time and place of work. Additionally, aircrew work in considerably stressful conditions requiring ceaseless concentration of attention. Hence, their employment conditions should ensure fair compensation for aircrew members and guarantee their reasonable working time and adequate rest.

On the other hand, the economic context of air transport needs to be acknowledged, too. Air transport is the most dynamically developing mode of transport. It is extremely important for the economy for enabling access to markets, which translates into economic growth and direct foreign investment. Concurrently, global air transport generates 3.5% of the world’s GDP and 56.5 million jobs. In the European Union the air transport sector directly employs from 1.4 to 2 million people, and indirectly creates approximately 5 million jobs. The direct contribution of air transport to the EU’s GDP amounts to €110 billion, while the total contribution combined with tourism is worth €510 billion. Air transport is developing very dynamically. According to estimates aviation services will grow at a rate of 4-5% per year. Air transport is an intensely competitive industry. The development of low cost airlines, as well as the dynamic growth of Asian airlines’ potential, compel operators to reduce the operating costs. Many European air carriers have chosen to outsource the operations which are not their core business activities and, gradually, also the key operations with intent to improve efficiency and profitability. New business and employment models have emerged, such as hub-and-spoke, aircrew recruitment via agencies, new untypical forms of employment or special remuneration systems for aircrew. Some of these practices can be perceived as infringing on aircrew’s employee rights. These include, e.g. departing from paid holiday or sick leaves, as well as introducing pay-to-fly remuneration systems which do not pay for the time beyond the duration of the flight. This may lead to aircrew exhaustion and violation of air traffic safety.

Airline workers actively defend their rights. Every now and then the media report industrial actions being taken by the various groups of employees in many European airlines, e.g. Air France, Lufthansa, Lot, or Ryanair.

International and European laws and regulations (in particular the ICAO standards) regulate the norms of working time and flight time limitations, and identify other aircrew employment conditions. These regulations frequently refer to the regulations and practices of individual states, whilst the legislation in some of the countries is not conducive to meeting the required standards. This is abused by some airlines. They have their pilots and other aircrew members work on a self-employment basis, whereby they circumvent some of the regulations applicable to employees. This leads to aircrew’s exhaustion and frustration. Therefore, it is worth asking whether the existing regulations can ensure air traffic safety and whether airlines’ compliance is sufficiently enforced. It needs to be added that one of the objectives of the 2015 EU Aviation Strategy is to ensure fair work conditions in this sector, e.g. by further clarification of applicable law and competent courts vis-à-vis the employment contracts of mobile workers employed in aviation, and through analyses of employment in aviation by the Commission together with the member states, as well as by supporting active and comprehensive social dialogue in this industry. However, it is difficult to be satisfied that the ongoing activities are delivering the desired result.