Summary

Just Culture has been at the forefront of IFATCA’s professional and legal debates for many years. This paper reviews the history of the evolution of Just Culture and provides guidance material to assist Member Associations in preparing and sustaining Just Culture in their organisations consistent with the current state of Just Culture.

Lest we forget, the essence of Just Culture is, as argued in this paper, fundamentally to do with making the ATM operation safer in the future. This is, as is argued here, a common aim for all of the stakeholders in ATM.

The paper takes a reflective view of what has been achieved with Just Culture to date.

In so doing, the paper argues that the ideals – the essence – of Just Culture have been lost in its evolution leading to an imbalanced discourse and only a partial or incomplete means to apply the tenets of Just Culture to achieve the ideals.

Furthermore, it provides the staff organisations with possibilities to appeal or have influence on judgments of gross negligence within organisations which are few and far apart.

The paper proposes additional guidance material to the Just Culture Policy.

Introduction

Jung said ‘thinking is difficult, that is why most people judge’. It has taken the aviation industry more than a decade to come to an acceptable definition of just culture, which would stand the test of time. That the aviation industry saw the need for just couture bears out the thinking of Jung. Today it is not uncommon that aviation professionals are judged rather than organisations truly engaging in understanding the nature of unexpected events.

One reading of the specific aim of just culture is to bridge the gap between the needs for, and balancing of, safety and the administration of justice. Another reading of Just culture is balancing the needs for safety with the need for accountability in everyday operational life. In the latter reading of Just Culture, there are two elements that are in tension in the purest (and simplest) consideration of Just Culture:- the judiciary and the operational actors and the organisations that they are situated in. At a global level the aviation side of the balance has published recommended practices (ICAO Annex 13 tenth Edition, 18.11.2010) and explanatory material which reflects the need for careful assessment of the interest of aviation safety and the administration of justice. At the European level European Union (EU) legislation has been passed defining just culture and starting to measure it as part of the EU Single European Sky (SES) performance scheme.

1.1. Considerable emphasis in all that has been undertaken thus far has been placed on interpretation of gross-negligence and the consequences of this. Specifically, in terms of Just Culture and when events are destined for deliberation in a court and follow judicial processes. These are thankfully rare. This emphasis has shaped both the discourse of Just Culture as well as in effect producing a dualist Just Culture. However, the result is that the objectives of Just Culture – making a significant contribution to safety have been lost and supplanted by an emphasis on consequences to the human operators and a need to satisfy bureaucratic accountabilities & obligations. The day to day operation is not supported in situations where Just Culture may be invoked because of the emphasis on the judicial track of Just Culture. The guidelines presented in this paper provide some means to address the skewed emphasis. However, more needs to be done to correct Just Culture and reorient the emphasis towards safety as well as introducing requirements for the protection and appeal rights of individuals within organisations when they are judged or accused of gross negligence.

1.2 The Evolution of Just culture

1.2.1 An examination of the evolution of Just Culture helps situate this papers arguments. The definitions of Just Culture illustrate the emphasis on consequences as opposed to safety. IFATCA (IFATCA Professional and Technical Manual, Edition 2013 p.4247) and The European Union Implementation Regulation (EC 390/2013 OJ L 128/4, 9.5.2013) defines just culture as:

1.2.2. The European Union proposed the Implementation Regulation (EC COM 2012-776.EN.pdf) on amending the occurrence reporting in civil aviation (EU) No996/2010 and repealing directive No 2003/42/EC, (EC No 1321/2007 and (EC) No 1330/2007 proposes the following recitals:

And proposes the following articles on protection of the information sources in article 16:

1.2.3. As shown in the extract above, there is a specific focus on gross negligence in the articles that shape the way that Just Culture is conceived and very limited focus or emphasis on the raison d’etre behind Just Culture – improving safety. Furthermore, these provisions are underspecified in that they are limited in terms of the practical application in the messy details of the real world. Particularly in the case of the determination and assessment of gross negligence. If an event takes the judicial path, it is well understood that it will be the rule of law and judicial process that applies. Within an organisation, it is less clear how such determinations are made. Moreover, it is also not clear how such determinations can be made internally and still uphold the principle of Just Culture. Here, is one example of the dualism of Just culture: where it can be evident the that judicial and organisational paths are different.

1.2.4. Is Just Culture only applicable to Europe? (Baumgartner M., Licu A., Van Dam R., Everything you always wanted to know about just culture(but were afraid to ask) , in Hindsight 18, Eurocontrol, December 2013) No. Just culture is not solely for application in Europe; it is not intended as a solution to a uniquely European problem. Just culture is intended for application and use globally. For a number of reasons, the just culture concept was picked up earlier in Europe, but that does not mean it is restricted to Europe alone. Europe, is a patchwork of sovereign states with sovereign judiciary powers that also has corporatised airlines and air navigation service providers. It has been a good breeding ground for JC. The EU has now enacted JC in its legal orders and regulations.

1.3. On the level of ICAO the issue of the misuse of safety data and protecting safety reporting has been on the agenda for many years. It has become apparent that a key part of the successful implementation of JC relies upon a number of realistic deliverables that will stimulate a further understanding and an active and open coordination between the safety and judicial authorities.

1.4. Therefore, in the discussions and findings of the 36th Assembly, the AIG (Accident Investigation and Prevention) divisional meeting in 2008 and the recommendations of the ICAO HLSC (High Level Safety conference) in March 2010 resulted in resolutions A37-2 and A37-3 of the 37th General Assembly on the sharing of safety information and the protection of safety data. Both resolutions, using the description of the JC initiative, instructed Council to strike a balance between the need for the protection of safety information and the need for the proper administration of justice. The Assembly furthermore noted the need to take into account the necessary interaction between safety and judicial authorities in the context of an open reporting culture. A special Safety Information Protection Task Force (SIPTF) was created as a result of these conclusions. In its final report, the SIPTF recommended a number of solutions, among which close cooperation between Safety, Justice and Just Culture figure prominently. As a result, the new ICAO Annex 19 on Safety Management Systems now contains the definition of Just Culture that also is used by the EU.

1.5. The 38th ICAO Assembly of September/October 2013, amongst other actions, instructed the ICAO Council to take appropriate steps to ensuring and sustaining the availability of safety information required for the management, maintenance and improvement of safety. The Council is asked to propagate the necessary interaction between safety and judicial authorities in the context of open reporting culture, based on the findings and recommendations of the Safety Information Protection Task Force.

Here it is evident that ICAO concern is about the interaction and balance of safety and the administration of justice. There is nothing about the requirements for the protection and appeal rights of individuals within organisations when they are judged or accused of gross negligence.

1.6. The EUROCONTROL Just Culture Task Force has members and observers from US, Australia and Asia and is represented in conferences and workshops globally and in 2008 the FAA and NATCA signed the Air Traffic Safety Action Program (ATSAP), which in the time between 2008 and 2012 (Flight Safety Foundation, Aerosafetyworld, August 2012) had more than 48,000 reports.

1.7. Finally: Just Culture has already conquered New York! When Captain Sullenberger was honoured by the City of New York after his epic ditching in the Hudson River, Mayor Bloomberg gave him a new copy of the book he had to leave in the cockpit. The title: Just Culture (Dekker S., Just Culture, Balancing Safety and Accountability, Alderscot 2007), of course!

1.8. Initiatives such as the Just Culture Model Task Force (Eurocontrol 2012), the joint Eurocontrol/IFATCA (see Agenda item C10.2 Conference 2014) training on prosecutor expert courses, and the advanced arrangement (European Cockpit Association and IFATCA 2012) have been one mechanism that helps foster understanding of the Just Culture principles and contributes to bridging the gap between safety and the administration of justice.

Recent legal proceedings by prosecutors (Switzerland 2013) and court cases (Italy 2008, 10) have shown that the independence of administration of justice will be maintained, even if in certain cases it places elements such as responsibilities of ATCOs and duty of care above ICAO Convention (Anastasi R., Profili di responsabilità penale nel controllo del traffic aereo, UniversItalia, Roma 2011 – ISBN 978-88-6507-203-5).

1.9. The purpose of Just Culture is evident – it is about using reporting as a resource to discover how the aviation system is functioning and performing in order to derive forward – prospective – safety interventions.

It is well understood that aviation has an enviable safety record and the reasons why. To the extent that it has been classified as an ultra-safe system (Amalberti, 2000). The discourse that surrounds Just culture, that was the emphasis in the EU Just Culture charter, is less about safety per se, but is about the role of the human in the system, about the way that the human performs (human performance) and the consequences not only to the individuals involved but also about the consequences to those accountable managers in the management chain (or otherwise) who effectively adjudge an event. The protection of the individual within the organisational context is missing. It is questionable if the tenet of Just Culture is being served by the experience of the last ten years.

Undoubtedly there have been examples of how Just Culture can serve its intended purpose. There are also examples where Just Culture has been administered and has had the opposite effect. Just Culture has been misappropriated and used as a means of social control, as a tool to be used for managerial action in support of bureaucratic accountability. Furthermore it has been misused because decision makers simply have no working knowledge of Just Culture that allows it to be administered in a way that is consistent with the ideal of Just Culture.

Indeed, it is the authors opinion therefore the whole concept of JC is based on arrangements on how to handle issues that have an influence on when and how the disciplinary scheme should be used against individuals who report or have been involved incidents and accidents. As a result, Just Culture is fragile, perishable and can stand or fall on one decision made by an ill-prepared actor. A ‘healthy Just Culture’ can very quickly become the opposite on the basis of one misappropriated event where Just Culture comes into play.

Progressive and forward thinking experts (Hollnagel E., Is justice really important? in Hindsight 18, Eurocontrol, December 2013) who have been developing resilience engineering and Safety II propose the following systemic view on just culture:

As ATM in some parts of the world progressively evolve different approaches to safety, whilst retaining some of the ‘old’ approaches, other parts of the world will continue with the old ways. The Just culture concept will continue to evolve and most probably will have relevance in the future regardless of the way that safety evolve.

1.10. This paper will provide Guidance Material for the introduction of Just Culture. The guidelines have been developed upon the foundation of:

• Dualism of Just Culture
• Trust
• The discourse of Just Culture
• A staggered approach to Just Culture

Discussion

2.1. Dualism approach of JC

2.1.1. The dualism of Just Culture:

To give an overview, and to help, with the ease of understanding of Just Culture, it is useful to divide IFATCA guidelines into two discrete classes. What is referred to here as the dualism of Just Culture:

• what to do when an event will go to court
• what to do when an event will remain within the organisation or with the regulator.

There are of course events that will start within an organisation and can then develop into an event that will go to court. These events are few and far between and it will be possible to find support in the guidelines for what to do in the case where your MA is faced with such an eventuality.

The reason for introducing the dualism of JC is that what the representatives of an MA can do, and the characteristics of the two forms and how those involved act, are very different.

When faced with an event that will go to court the focus will be on blame, shame and the apportioning of responsibility. This is a backward-looking focus, which provides very little help on how to improve safety. The emphasis is on retributive justice.

In the case where an event will remain within the organisation, with or without the regulator or national competent authority, the goal of the MA should be to continue to focus on improving safety and to avoid that blame and shame will be the focus of attention and the soul driver of actions and decisions. The goal is to create forward-looking thinking about how the organisation and the system can improve system safety. Here the emphasis is on restorative justice.

2.1.2. A staggered approach to JC – changing the discourse

Building a JC starts at home from within an MAs own organisation. But, an organisation does not live in a vacuum. Dekker (Dekker, 2007) has taken a position on Just Culture for many years and has proposed a staggered approach to introducing a JC.

Why?

JC is influenced by an organisations cultural context, the way culturally it is situated in society and its relationship with the judiciary and the organisations history itself. A staggered approach makes it possible to match the building of a JC to the possibilities and constraints of an organisations unique cultural attributes. Each step of the staggered approach builds on the previous step and assists in developing confidence trust.

Trust

In the initial steps of instituting a Just culture, building confidence between organisational actors that helps develop trust in each other cannot be emphasised strongly enough. Just culture is fragile. It is perishable. It takes only one situation where a decision is questioned or has consequences that are not seen as fair or even unnecessary to undermine a working Just culture. The confidence and trust that has been built can quickly turn to mistrust in the handling of one event that is perceived not to respect the tenets of Just culture. Living with JC means beginning to develop a relationship of trust between ATCOs (& ATSEPs and ATSAs), managers, regulators and other stakeholders. Then for all involved to maintain this. For some this will be very challenging and will require significant leaps of faith by some stakeholders. It is here that MAs can have significant influence in shaping the way that a Just Culture is enacted.

This will be difficult and challenging, but it is one of the foundations with which to build a just culture and one that can weather the storms when it is being tested Incidents are often viewed as failures with consequences. Managers have obligations as part of their bureaucratic accountability. Seen in terms of trust, every occasion where a manager adjudges an event in these terms is another nail in the coffin of JC potentially. They also represent opportunities to work together to test knowledge and understanding of Just Culture, but requires patience and non-confrontational approaches by MAs who find themselves in such situations.

An approach of forward looking or prospective safety can be a starting point. One common ground between managers and the operational community is making the operation safer in the future. This is the very essence of Just Culture and building a common understanding of how to achieve this collectively can serve as a building block in the staggered approach

There will be occasions where this relationship of trust will be tested. But handled in a positive and non-confrontational way, each such encounter can serve to strengthen the relationship. Open dialogue where there is an acceptance that there is no black or white answer and multiple perspectives can greatly assist in creating an atmosphere of trust

2.1.3. The discourse of Just Culture

Just culture is not new. Today the discourse that surrounds Just Culture is in large part about consequences and gross negligence. This discourse has taken Just Culture away from what IFATCA believes it is fundamentally about: a discourse about safety and trust.

The Staggered Approach

There are possibilities for MAs to instigate the ANSP to adopt a JC; the staggered approach provides one practical way to achieve this that facilitates trust and confidence in shift to a JC.

2.1.4. The guidelines

Making a set of guidelines and advice on how to deal with issues concerning ‘just culture’ is at the outset very much about learning about the context in which an MA is situated. The context of an organisation is inextricably linked to the way that Just Culture can be accepted. Another significant factor is national culture. Being aware of how this might influence the ideals of Just Culture can help MAs position and find effective ways of undertaking the initial approaches to an organisations executive.

There are large differences in how people look at and react to those individuals involved in incidents and accidents. Note that the emphasis is not on the circumstances of the event as such, but the emphasis is on the individual person or people involved closest to the event.

In some countries there is no differentiation, legal or disciplinary, between how people are treated after incidents or accidents. In other countries individual actions will only be questioned in cases where there are casualties involved. These situations require MA’s to pay particular attention to the context in which they are situated and let this inform suitable ways to act accordingly. These guidelines will include guidance on how to learn about the local context, as well as how to act within it. Because there is such a range of differences in how people are treated there can be no clear and definitive answer as to how MA’s have to or should respond when these situations occur. It will be up to the people in the MA’s to take action and these guidelines can only assist the MA’s in their quest for a fair and ‘just’ treatment of people involved in incidents and accidents.

IFATCA extended the staggered approach to the following four steps:

1. Living with JC, where to start in your organisation.

2. Living with JC in practice. The line, what is it? Who draws it? And how does it affect you?

3. Data disclosure. Protecting you from probing eyes.

4. When it goes to court. The crisis organisation.

If nothing else, as an MA interested in pursuing a Just Culture in their own organisation, the following facets are those that should be held true to make any progress. These are the areas of importance to any MA who are contemplating JC. Even though any progress will be paved with frustration.

2.2. Living with JC – Where to start in your own organisation