1. Legal Impediments to Just Culture

2. Content Performance review and safety;
Safety survey into the “just culture”;
Issues identified by the survey:
Legislation;
Regulation;
SMS;
Local culture;
Follow-up;
Conclusions.

3. Performance Review 12 independent senior experts;
Very wide aviation expertise;
Appointed for two years, renewable once;
Running a strong, transparent and independent performance review system;
Ten-strong supporting unit.
The Performance Review System was created as a result of the 1997 Revised Convention of EUROCONTROL and started its activity in The system is based on an independent Commission with a membership of 12 senior experts coming from all areas of aviation. The experts are proposed by the Member States and approved by the Provisional Council based on the expertise and value of each and every one of them. A PRC term of office is two years and membership can be renewed once. This system assures a perfect balance between independence, variation and adequate expertise within the PRC. Independence of the PRC is perhaps its most important asset, as all members act independently from their respective organisations while working for the PRC.
Supporting the work of the PRC is the ten-strong force of the Performance Review Unit. The expertise within the PRU ranges from safety and ops through to economic and legal. To ensure the independence of the PRU, the unit is not part of the EUROCONTROL Agency and its one and only master is the PRC.
One of the regular products of the PRC is the Performance Review Report, published annually. This report has become a reference in the whole ATM world and beyond. It analyses and reports on the performance of the European ATM system, identifying performance gaps where present and recommending remedial actions.

4. Key Performance Areas Safety Time Access Reliability Predictability
Environment
Flight Efficiency Flexibility
Safety
Delay
Cost Effectiveness
Equity
Other New KPAs
The PRC has established from its beginnings a system of performance monitoring based on ten Key Performance Areas (KPA) and associated indicators (KPI). Of those, three have been considered as the most important and were given high priority: safety, delays (as a proxy measure for capacity) and cost-effectiveness. Environment and flight efficiency are also addressed lately.
Analyses in the annual Performance Review Reports are based on these KPAs, while other, more punctual issues are also addressed. Any recommendation issued is addressed to the Provisional Council and it is up to the Provisional Council to decide upon those recommendations and to the member states to act.
Safety has been and continues to be a permanent concern for the PRC. This is why the PRC has not contended to only rely on the safety-specific bodies of EUROCONTROL, but has done its own work in the domain.
Time

5. Just culture needed. Incident reporting Why? Why? Why? So?
European safety performance unknown
Why?
Lack of consistent data
Why?
No reporting
Why?
Fear of consequences
From the very first PRR, the stark reality of an almost total lack of safety data was a serious reason for frustration. However, this has triggered actions from the PRC and together with its colleagues in the Safety Regulation Commission and Unit, causes for such lack of data have been sought and identified.
The truth is that there was virtually no safety data, or at the best data were not consistent because there were no safety occurrence reports. That is, no reports to EUROCONTROL, but in a large majority of cases there were no reports within the States either. We have come a long way since, but there is still not enough or not consistent reporting within States. Looking further, the next stumble block identified was the fear of consequences shown by ATC personnel. This can be due to legislation, regulation, safety culture within the organisation, local culture etc.
It is very important to admit that incidents exist, that everybody needs to learn from everybody’s mistakes, and therefore have the courage to admit one’s mistakes and report. However, this can only happen if a proper safety culture reigns within an organisation and if the legislation is favourable. It came to the attention of the PRC that this might not be the case everywhere.
From here to identifying the need for a just-culture there is only one small step for the analysts. Better known as the non-punitive environment and the blame-free culture, the PRC wondered if these were only empty words or if the reality on the field did actually live up to the expectations. There was no consistent information readily available but all those asked showed a real interest to actually know the answers to the questions asked by the PRC, so it was decided that a survey will be conducted to clarify this issue.
So?
Just culture needed.

6. What is “Just Culture”? See IFATCA definition Addressed by SMS
Single purpose: safety improvement
Slips, lapses, etc.
Honest mistakes
criminal acts
gross negligence
Inadequate attitude
Repetitive errors
Deliberate acts
Competence of justice
IFATCA defines “just culture” as a culture in which front line operators are not punished for actions or decisions that are commensurate with their experience and training, but also a culture in which violations and wilful destructive acts by front line operators or others are not tolerated.
Legitimate actions may sometimes lead to undesired results (incidents). Also, as ATCOs are humans too, they can make “honest mistakes”, they can be the victims of omissions, of human errors and so on. These are the kind of incident causes that should not be punished.
Violations, criminal acts, gross negligence or substance abuse are intolerable and therefore fall outside the protection area, those responsible for such actions being liable and having to face prosecution.
There is a grey area between the two categories above where it might be difficult to clearly define e.g. negligence. It might also be difficult to accept repetitive mistakes. These are typically areas where management must take measures such as retraining, reassignment or even disciplinary actions, before things escalate and become the
Monitored by management
Disciplinary actions as required

7. PRU/PRC Survey Announced in 2001;
Supported by the SRU and EUROCONTROL Agency;
Started in October 2001.
Two phases:
Questionnaire sent to 28 States;
Interviews in 10 States plus Maastricht UAC;
Final report approved by the PRC;
Published in December 2002;
Sent to Provisional Council, States, Agency.
New survey in 2005, your assistance is required.
The survey was announced in PRR4, in During an open day, when different stakeholders were consulted with regards to the PRRs contents, there was a marked support for such an initiative.
Encouraged by this, the PRU launched the survey in late The PRU has asked and obtained the support of specialised units of the EUROCONTROL Agency, dealing with safety and legal matters.
It was important for the PRU, like in any survey, to capture both the institutional framework, represented by legislation, regulations, arrangements between the various organisations within the State, but also to get a feeling about how and what people do actually feel. Therefore, to cover the first part of the study, a questionnaire was created and sent out to all EUROCONTROL Member States, asking regulators, service providers, accident investigation boards and ATCO representatives to answer. To ensure full transparency, the questionnaires were identical for all, although some questions were only relevant to certain respondents. To ensure confidentiality, all responses were kept strictly within the Agency and only aggregated results were published.
This work has been given a new lease of life now, as a taskforce created by the EUROCONTROL DG has requested the PRU to research what’s the situation at present, but at a deeper level. We are required now to clearly identify every piece of legislation in each country that has a problem, summarise and report on it. The next action will be to find solutions to those problems that could not be sorted out until now, solutions that will be either local, European or even global. A combination of the above can also be envisaged.

8. Right to know vs. safety Safety performance is of public interest
Public has the right to know
Fine balance between those two:
Good safety requires measured safety,
Measured safety requires safety data
Safety data require safety reports,
Safety reports require ATCO confidence,
ATCO confidence require “just culture”.
The “just culture” has two main components:
Protection against public disclosure,
Protection against punitive measures.
The traveling public considers its own safety as its highest priority. The very same public has the interest to know that things are under control. However, one should not conflict with the other. If the public demands detailed data, the result will be exactly the opposite: ATCOs will stop reporting, safety performance will remain unknown, therefore safety improvements are almost impossible.
An essential element is TRUST. The public, the media, the justice, the politicians must all have confidence that the service providers together with their regulators will continuously maintain and improve safety. There is a trade-off: aviation personnel must be protected from any punitive measures within the just culture concept, in exchange they will feel confident to report all occurrences, therefore the system is totally known and all issues can be tackled at an early stage. Periodic public information campaigns, with aggregated, high-level data will assure the public that the system is healthy and well.

9. EUROCONTROL Survey - Key Figures4%
35%
61%
For a first flavour of just culture, ICAO has already laid out the fundamentals of the just culture in waht safety investigation is concerned. This is done in Annex 13, paragraph 5.12.
A significant number of States have not even implemented this very basic requirement.
Yes No
Not answered
ICAO Annex 13, section 5.12 implemented in national law

10. Main issues (1) Legislation
Significant legal/regulatory constraints to non-punitive reporting in many States.
As a result, many staff feel inhibited to report.
“Freedom of Information“ legislation is particularly difficult to deal with.
There are important legal as well as regulatory shortcomings in the present legislation in many states. This is usually acknowledged, but it must also be said that with one exception there is no significant effort to improve the situation. Changing laws might take a very long time, changing mentalities might take forever. However, this is far too important in the present growing demand for air transport to ignore the issue and hope that nothing bad happens. The 1st July 2002 was a grim reminder that we’re running a business where risk is always present and should not be neglected.
As the example of Denmark shows it, changes are possible and feasible. A well-coordinated action involving all essential players has brought to fruition changes thought impossible only a couple of years earlier. If this was possible in Denmark, it should be possible anywhere. But this takes determination, organisation, a clear plan and political will. All these ingredients must then be cooked wisely and the positive results are likely to show up immediately.
FOIA is a particular issue in this case and rather difficult to deal with. An important matter for a state trying to get the laws changed are the challenges from other professions, like e.g. the medical profession. The almost immediate reaction is to ask for the same “privileges”, which at the end of the day is nothing to be afraid of. It should be noted that even states having a rather mature system still run the danger of having their whole work and arrangements torn apart by one unfortunate event when, by using FOIA, the press, prosecution or public unveil details that must be kept confidential.
The exercise will attempt to deal with these issues in more detail.

11. EUROCONTROL Survey - Key Figures
11%
26%
63%
An extremely important part of the just culture is played by the legislative system. There are a few States where the simple incident report could drag the involved controllers to Court. These are very rigid and short-sighted legislative systems and unfortunately they are not singular cases. The present world seems to evolve more and more towards being very contentious. The educational part is all too often forgotten and governments have the feeling that the more punitive a system is, the more people will behave properly.
It is extremely important to note that an incident or even accident is not always created by the person who was on duty, but that the system might be at fault. Such cases will never be solved by prosecuting the controllers, quite on the contrary. The immediate consequence is that the problem within the system remains unsolved and lurking for another occasion to surge out. Moreover, any other systematic issue will be hidden by personnel in the often hopeless hope that nothing will ever happen.
A certain protection from prosecution is afforded only in less than a third of the surveyed states. Again, immunity from prosecution is meant in the sense of the ICAO Annex 13, para. 5.12, where the data should only be used for the safety investigation and not in court. Should justice need to follow its course, then it should obtain its own data and make its own investigations.
Yes No
Not answered
Partial or total immunity from prosecution

12. EUROCONTROL Survey - Key Figures
13%
49%
38%
Another issue, an intrinsic part of a just culture, is confidentiality. This means that details of both the reporting persons and names of those involved in an occurrence should not be made public. There is absolutely no safety benefit that could result from putting the people under the spotlight. This can be as much a blame as an actual punishment and the immediate result is, again, reluctance to report.
It can be argued that knowing who was involved or who reported is important should more information be needed about that particular event. This is true, but what’s important is to protect these names from ending up in the public domain. Sometimes names can be revealed in restricted circles for the purpose just mentioned. However, this can only be done in a truly mature system, where people are confident that they will not be blamed but rather listened to. Loss of face is also an important inhibitor to reporting, so it’s essential that the just culture is instated all the way from the ops room to the prosecutor.
It goes without saying that if a person feels that his/her name will be disclosed either to the press or to justice, there will be virtually no reporting. In half of the surveyed states, this is the case. The main issue in such states is the existence of the Freedom of Information Act, and since the ANS is provided by public entities… the rest is NOT silence, but whatever the press might want to make of it.
It is however interesting to note that there are ways around such problems. Perhaps the most remarkable case is Denmark, where new legislation was enacted with the specific aim of protecting certain data from FOIA. This, along a few more actions, has managed to create a non-punitive reporting environment virtually overnight and the results did not fail to show. Another example could be Sweden, where even if FOIA is enacted, alive and kicking, the usual procedures are that safety would have priority over sensational press. This is not a law or regulation, it’s merely best practice based on a good education of all parties.
Yes No
Not answered
Disclosure of a reporter's name

13. Main issues (2) Regulation Safety regulation still not well developed;
Proper staff, legal tools and resources needed;
A strong, independent regulator is a guarantee for all.
A conclusion that might be startling at first sight, nevertheless true: safety regulation is still searching its way in many states, particularly in what ATM is concerned. Clearly, aircraft manufacturing and flight ops are better equipped, and the presence of such staff in many posts within the safety regulators of some states is evidence to that. It is interesting to note that many AAIBs are actually managed by former airline people. And in many cases the AAIB is much more open and safety-proactive than the safety regulator or the ANSP.
There are still a number of regulators that are ill-equipped, lacking proper staff, lacking the material resources, or lacking the appropriate expertise. It is not infrequent to see safety regulators struggling within a less than friendly legislative framework, equally important for a strong regulation.
And yes, it is widely agreed that a strong regulator is a guarantee for all: the service provider knows that an independent regulator can stand up for it and guarantee its high standards to the world, the public trusts that the service provider is not doing it all by itself, ATCOs know that the rules governing them are objectively created, and the list could go on.
A question might arise as to what is the right level of regulation: should it be very prescriptive, with the danger of impeding on the service provision activity and even taking over some of the responsibilities? Should it be loose, giving the service provider loads of freedom? Certainly, the truth is somewhere out there, but it’s up to all of us to find it and make it happen.

14. EUROCONTROL Survey - Key Figures
35%
65%
It is quite worying to see that two thirds of those questioned considered the national regulations as being inadequate. The reasons are several, such as:
There are no safeguards for those involved in safety incidents, including those who investigate;
There might be interference from other regulations, such as the economic regulation;
The independence of regulators is not achieved everywhere
Proactive safety regulation was largely considered as a desired objective for all. Usually, safety regulation is reactive and although it might prevent future occurrences, it should try to become even more efficient in preventing safety occurrences and try to prepare for the unforseen.
Yes No
Adequacy of safety reporting regulations

15. Main issues (3) Safety Management
Poor communication between various levels of management, as well as between management and ATCOs.
Safety management not always taken seriously.
As shown before, legislation and regulations are not everything to ensure a proper and functioning safety occurrence reporting and analysis. Management’s involvement and awareness of safety is crucial. Very often ATC is conducted as a business. Nothing wrong with it, our customers demand it and as long as we all want to pocket out less and less for air travel, ATM must be as cost-effective as possible. However, safety was for far too long used and abused in two paradoxically opposite ways relative to expenditure: some use it to justify just about any kind of expenditure, as safety is paramount and investing into a new swimming pool might improve safety. Others take safety for granted and do not want to make any investment, believing that safety is assured no matter what: we have the best system in the world and the best controllers, isn’t it?
This kind of problem usually stems from a misunderstanding of what safety is and how it is assured, a misunderstanding that creeps up the management line. A widespread managerial problem is the communication, or rather the lack of it. This can be found at almost all levels, starting with the top management that sometimes has difficulties in ascertaining the importance of safety in their organisation, going on with breaks in communication between different areas of management (ops, safety, economics) and down to the level of the “working class” who might not always be involved or well informed on the implications of certain managerial decisions with direct safety consequences.
Needless to say, this has direct and wide implications on the establishment of a just culture. Where there are breaks in communication, where management, and particularly senior management, is unaware of the true dimension of the safety issues, where the internal policy perceives those reporting an incident as bad performers, well, in such places a just culture would look like a camel at the North Pole.
For one thing, the PRC has this message for everyone who wants to listen: not having incident reports is bad performance! It would take a huge effort to convince any of us that any State is so good that there are actually no occurrences. We firmly believe that such occurrences exist even in the best systems, but they’re not reported. And that’s very bad performance.
Safety managers have a major duty in making themselves known within the organisation, in raising the awareness and making it clear that safety should not be taken for granted. Sometimes however, this is not the case and it has been found that there are things assumed to be there when they were not.
On a more positive note, recent activities from EUROCONTROL and a number of Member States seem to improve the situation, a fact also seen in the quality and quantity of AST returns. However, we’re still only looking at the tip of the iceberg and can only begin to guess the real dimension of the problem.

16. EUROCONTROL Survey - Key Figures
A significant number of organisations have documented procedures setting out what happens, and under which circumstances, to staff involved in safety occurrences. This is a crucial part of a system where just culture is well enshrined.
A lack of documented procedures can seriously hinder safety reporting, as faith in the system requires clear commitment from the management, in writing. It is difficult to expect anyone to trust a system based solely on verbal assurances.
Existence of internal procedures

17. Conclusions Safety: part of the performance review
International agreements not always fulfilled;
Unfavourable legislation and/or regulations;
Wide awareness about the need of a just culture;
Vast education campaign needed for implementation;
The just culture elements identified locally;
Incident reporting must be encouraged.
And to make it happen, there are a number of actions for which each and every single one of us is responsible in one way or another.
To recap:
Safety is undoubtedly part of the performance review and this is why the PRC and PRU have been, and will continue to be, involved in safety.
ICAO, EUROCONTROL, EU have all generated a plethora of international agreements, SARPs, mandatory requirements and the lot. All of them are usually discussed a very long time before becoming mandatory. However, quite a number of states are falling short of fulfilling their obligations. Many of them use the ICAO instruments and file an exemption, but there are a few that didn’t even consider necessary to do this. However, it is simply not acceptable to abuse this mechanism and simply file an exception for not doing anything. And while ICAO had no means of actually enforcing its rules, the EU has. And enforcement will come, if needed.
Related to this, often the legislative and regulatory systems are inadequate, to say the least. While it’s true that there are ways around the potential hurdles, this should be the exception and not the rule. It’s simply not possible to work in a system that has to circumvent the law permanently. This is not safety anymore, it’s acrobatics.
Although more and more are familiar with the concept of “just culture”, this is still either unknown to the majority of people, belonging to all categories, from the general public to politicians or unwilling to implement it. It is clear that professionals understand very well what that means and the need for it. However, the two ends must meet and this requires a vast and sustained campaign, to educate the media, the public, the politicians, the managers about such a need. Only in this way a constant and reliable safety occurrence reporting system can be implemented at all levels, for everyone’s benefit. Such systems already exist in a few places in Europe, they are the positive evidence that it’s feasible.
There is a fine balance between being responsible for the safety of so many people and goods and being protected from prosecution in case of something going wrong by mistake. In a world where chasing and punishing the culprit often seems more important than actually identifying the causes and avoiding repeating the same mistakes, the contribution of all is needed to make this happen. And more often than not, this starts from the ops room, as both the responsibility and the threats lie there.
Last but not least: jsut culture might be a buzzword behind which there are many unknown elements. It’s clear that there’s no silver bullet for all the problems surrounding the creation and implementation of a just culture. What’s perfectly acceptable for one nationality, might be a serious insult to others, therefore “just culture” is something that can only be created and implemented by each and every State, following a few simple general rules.
Again, safety occurrence reporting is crucial for safety performance and for the overall performance of the system. ATM is in the business of producing safety. Therefore, safety should be the product best known and most measured. This is not the case presently, but all this can and must change.

18. EUROCONTROL Survey - Key Figures
19%
16% 3%
62%
All details are available in the final report. However, some details are of interest for the purpose of this presentation, such as the replies to the direct question of whether or not a non-punitive system existed. The self-assessment of the surveyed States: just one third considered having it or being on the right track to having one. AND IS STILL VALID TODAY!
It is no wonder then that personnel refrain from reporting, when they know they could face punitive actions. It is important to emphasise at this juncture that the understanding of a “non-punitive” environment is very clear. There is literally unanimous acceptance of the fact that negligence, abuse, voluntary infringements of regulations cannot be tolerated and as such they are not subject of a “non-punitive” treatment.
Yes
No, but on going No
Not answered
Existence of “just culture”

19. Thank you!
Questions? ?