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Air crew home base and social security

Many air operators in Europe struggle with the Home Base rule and its effect on flight and cabin crew social security issues.


This article discusses the rule and examines how positioning and residence status affect the rule, especially in the context of Business Aviation and ACMI operations away from main base.


Background


Seven years ago, in 2012, new rules for determination of the social security regulations applicable to air crew came into effect by means of an amendment to European Union Regulation (EC) 883/2004 on the Coordination of Social Security Systems, through which the Home Base rule became the decisive factor in determining which country’s national insurance systems apply to air crew members.


Before then, crew were subject to the social security rules of their country of residence if they had substantial activity in that country or, alternatively, they would be subject to the regulations of the country where their employer was registered.


That changed with the new Home Base concept.


The impact of Home Base is way more than that of eight letters in two words on a piece of paper.

Home Base means the location, assigned by the operator to the crew member, from where the crew member normally starts and ends a duty period or a series of duty periods and where, under normal circumstances, the operator is not responsible for the accommodation of the crew member concerned.


The new rules were based -- straight out of the box -- on the Home Base definition found in Annex III Subpart Q to the regulations on the harmonisation of technical requirements and administrative procedures in the field of civil aviation at the time.


Regulation (EC) 883/2004 on the coordination of social security systems applies to all 28 Member States of the European Union as well as Iceland, Liechtenstein, Norway and Switzerland, being a total of 32 countries.


Subpart Q today


Subpart Q was later incorporated into the current European Union Aviation Safety Agency (EASA) provision concerning flight time limitations (FTL).


Today, Commercial Air Transport (CAT) operations (aircraft on scheduled and charter operations including ACMI leasing operators or “airlines-for-the-airlines”) are subject to the rules of EASA FTL while air taxi (non-scheduled CAT, aircraft certified for 19 passengers or less) operations are subject to EU OPS Subpart Q by way of derogation. The Business Jet market is dominated by aircraft certified to carry 19 passengers or less and therefore typically falls under the air taxi regime.


Home Base and social insurances


The Home Base rule is used to determine the applicable legislation -- that is to say, in which country the crew member must be insured for social security purposes -- and establishes that the crew member shall be insured in the country where the crew member’s Home Base is located. The legislator has established that the applicable legislation for flight crew and cabin crew members should result in stability and that the Home Base principle should not result in frequent changes of the applicable legislation due to the industry’s work patterns or seasonal demands, essentially to avoid the so called "yo-yo" effect of changing between different countries’ systems.


Once it is established which country’s legislation the crew member belongs to, the employer becomes liable for social security in that country as if the employer were actually established in that country. That means that the employer is responsible for all social security financial obligations of that country and that the crew member is subject to the obligations and benefits of that country’s social security system.


Operating models


Business Aviation operators in Europe largely consist of aircraft management companies who operate aircraft for larger corporate clients, wealthy individuals and who also charter out the aircraft to third party users. ACMI operators serve a different market but, by-and-large, have a very similar operating pattern as the business jet operators.


Some operators have a fixed base for their aircraft. This may be where their principle place of business is and where their crew members also reside. In such cases, the Home Base is obviously the same location. All nicely simple and straightforward.


Many operators, however, operate their aircraft from various locations away from their own main base. An Austrian based company may operate a business jet based out of Nice because the aircraft owner lives in the area. A German charter operator, for example, may even have no airport to call home for its aircraft as the jets are fully chartered aircraft that wait for the next charter wherever they landed and completed their last charter. Such operations result in different crew work patterns and crew management issues, involving positioning of crews and their commuting in an irregular pattern from their place of residence to wherever their aircraft is sitting.


Working patterns


Operations away from main base pattern allows crew members to continue residing in their home countries as the need to relocate permanently no longer arises. There is no meaningful operational base to relocate to and no need regularly - or sporadically - to uproot the crew members family to move to an aircraft base which is subject to being changed at the aircraft owner’s or operator’s discretion.


Within the industry the practice has evolved over the last twenty years or so whereby such operations are facilitated by the operator providing commercial flights to crew members to commute by air between their country of residence and where their aircraft is at any given time at the start and end of their duty periods (i.e. crew change). These crew changes take place anywhere in Europe or, for that matter, anywhere in the world.


Working pattern relationship with Home Base


Establishing a Home Base location correctly requires us to take a holistic approach by considering its proper meaning and examining the effects of the operating model (more importantly the working patterns of the crew, including positioning) within this meaning. In doing so we need to understand the two dominant elements of the Home Base definition, duty period and accommodation, by tracing their meaning back to their roots in the EASA’s FTL and the Subpart Q rules concerning crew member’s duties.


When crew members travel, at the behest of the operator, between their country of residence and the place where the operator’s aircraft are or will be located at the start and end of their duty periods, such travel, or transferring of a non-operating crew member from one place to another, is Positioning and it forms a part of the crew member’s Duty Period. This helps us understand that the industry practice of having company-provided travel from and to airport close to a crew member’s residence itself defines the start and end of their Duty Periods. In such cases then, the assigned Home Base would be the international airport closest to their residence in their home countries.


The second element to consider is who is responsible for the accommodation of the crew member and where. At Home Base, the operator is normally not responsible for the accommodation of the crew member concerned, such as at home (or when a crew member is based somewhere away from home but is responsible for his or her own accommodation there). The industry sector’s norm is that during the duty period when the crew member is away from his residence the operator is responsible for the accommodation, i.e. both in terms of arranging the accommodation and bearing the cost of it.


Responsibility for accommodation and the positioning at the start and end of duty periods are interconnected and together they help define the location of the Home Base.


This in its turn helps our understanding of the concept that the various airports away from home where the pilot-meets-the-plane and where crew change takes place are neither “alternating Home Bases” nor do they create more than one Home Base.


The legislator foresees situations where there could be more than one Home Base, such as when a crew member works for more than one employer, and also situations where a crew member works for a short period of time in each successive country (e.g. Home Base changes every few months). It should be said that these situations are very uncommon in the business aviation and ACMI sectors, considering the implications of accommodation and positioning discussed above.


Practical example


We may consider an example of a typical work pattern in these industry sectors.


A pilot resides in Vienna, Austria, and works for a Maltese air taxi company which operates a small fleet of business jets. The company plans its flights according to the needs of the charter market and include flights within and outside Europe. Her employment contract states that for each 30 days she shall work for 18 days and then have the next 12 days off. Each time she starts her rotation, i.e. her duty period, the company arranges an airline ticket from Vienna Schwechat airport to bring her to an airport where the company aircraft is located at that time and which she will be working on. During her duty days, the operator provides her with hotel accommodation at all locations outside Vienna in line with the industry standard. At the end of her duty period the company again provides an airline ticket for her to position back to Vienna Schwechat airport.


In this classic example the pilot works from one stable Home Base, being Vienna Schwechat airport. The pilot is subject to the Austrian social security system and the pertinent Austrian social insurance authorities will be the authority with whom the employer will interact and to whom payments are to be remitted. The Maltese company will account for social security and pensions contributions in Austria in accordance with the Austrian legislation and the pilot is subject to all the obligations and benefits of the Austrian system, including the rules on sick leave, occupational and non-occupational accident leave, maternity or paternity or family leave and so on.


Going forward


While the intent of the Home Base rule is relatively clear, its interpretation is dependent on the impact of its component. Grasping the full context should help Business Aviation sector operators and ACMI’s correctly apply the Home Base rule in various circumstances.


It is imperative that the application of the Home Base rule is based on a correct understanding of the relevant facts because if applied incorrectly it can have material consequences on crew members as well as a serious financial impact on operators. Erroneous application of the Home Base rule can in fact result in the denial of otherwise applicable social security and pensions rights and benefits to the crew in the country where she or he should indeed be insured as well as the imposition of heavy arrears demands and penalties on operators.


The impact of Home Base is way more than that of eight letters in two words on a piece of paper.


Need to up your Home Base knowledge? Find out more and get in touch at support@iristhaumas.com


IRIS THAUMAS LTD is a human resources company specializing in employment services, recruitment and payroll, providing social security compliance in 28 countries in accordance with the Home Base rule of Regulation (EC) 883/2004. Licensed Employment Agency/Employment Business. Certified Seafarer Recruitment and Placement Service (MLC 2006 SRPS).


This article was first published by Capt. Hermann Reynisson on LinkedIn 16 November 2019.


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