KIWIS BEAT CX IN COURT

[AnAmusedReader]

Can anyone confirm that CX has just lost an age discrimination case against the HKAOA in NZ? Or better put, the HKAOA beat CX in court?

[cxorcist]

Congrats Brownie and Syco!!!

Yes, I have heard from a 100% reliable source that it is true.

[LongTimeInCX]

Great news indeed.

Very nice to see an independant judgement made using common sense and a legal system as efficient as their rugby team.

It will be interesting to see if the grownups can for once accept defeat with good grace, or whether the toys will be thrown out of the cot, with the inevitable appeal lodged because the result was clearly not backing up their viewpoint of managing retirement age.

[RusCo]

Accept defeat? What are you kidding me? When have you ever seen them accept defeat and be graceful losers?

This appeal will go to the highest court in NZ. You can bet on that.

[Will IB Fayed]

Yes, well done....

Although, I wonder how this affects the viability of the AKL base?


YOINK!

[Basil]

Accept defeat? What are you kidding me? When have you ever seen them accept defeat and be graceful losers?

This appeal will go to the highest court in NZ. You can bet on that.
To be honest, not the only airline which takes that course.

[Anotherday]

Its not about retirement at 55 or 65 instead, its about not retiring at all, as numerous court cases with Air NZ and some of its flight crew have shown. Will be interesting to see what happens when NZ based CX pilots reach 65 and opt to continue flying even with nowhere for them to fly to (apart from domestically in NZ, as Air NZ crew have done, or working in the sim).
Pyrrhic victory if the company closes the NZ base as a result.

[Max Reheat]

The CAD has a max age of 65 to operate HKG registered public transport aeroplanes.
Case closed!

[sleepercell]

Its not about retirement at 55 or 65 instead.....I thought that is exactly what this is about??

However, the viability of the AKL base has been under the microscope for many years, I think this will end up being a spectacular own goal.
For those of us in HKG, I can see our next fight will be to preserve the base for 27 of NZL based brethren.........It never ends :ugh:

[Arfur Dent]

If you want to see how good the "Management Team" is, just study the history of Bases for a while. It brings a new take to the expression 'due diligence'. Who is called to account when these already existing skeletons leap out and bite Cathay FOPS - or was it all blamed on that dear departed GMA?
Do you have to score highly in the "How many Court cases have you had against your own Employees" category to be voted "Best Airline --- in the World" (spoken in Jeremy Clarksonesque tones).:p;)

[FO4EVA]

So when do the Aussie A-scalers begin proceedings?

[Frogman1484]

I think that they will now go onshore and end up paying full Kiwi tax instead of HKG tax. All of the Oz based guys are on Cos08 so no need for a court case.

I must say that keeping the base going for one flight a day...yep it might not be viable for them. Especially if they have to follow Kiwi labour practices.

[Will IB Fayed]

Would imagine all the other NZ pilots would be pretty ****ty about this. Their basing has been put at significant risk. And so has the HKAOA paid the legal fees to benefit 2 guys while putting the jobs of 20-odd others at risk?
Some serious questions to be asked there.

[Anotherday]

Max reheat, drop out of law first year to take up flying? AirNZ lost because under NZ law there was a requirement by the company to assess providing employment in some way shape or form. Age discrimination. And there was a requirement to pay the same pay scale as they had at age 65. CX NZ pilots have just fought to prove they're not under HKG employment law.
I'd say in the future large amounts of money will be spent by the AOA fighting to get NZ based crew doing some form of employment (updating FCOMs, PXing Hkg to work in office etc) on their full pay they were receiving when they were no longer able to fly a 340 to HKG.

[404 Titan]

Anotherday

Unfortunately the age 65 rule in Hong Kong isn’t governed by Hong Kong labour laws but HKCAD licencing laws of which NZ has no jurisdiction over. I can see why most of the NZ based guys are pissed off with this court case because if the NZ courts continue along their current path I can see this ending very badly as it will become a no win situation for anyone with the company ultimately closing the base.

[Max Reheat]

Another Day

What a pathetic response, why do you take a side swipe, and a cheap one at that, when all I was doing is pointing out the actual policy regarding the CAD.... it seems like you didn't even make it to law school.

The CAD is the CAD and the operation of Cx jets is governed solely by CAD policy.
Age 65 it is, until that policy changes. Now, the two guys may be able to argue a case for working for CX beyond 65 but it won't involve aeroplanes!

[Interested_Party]

There are a few very odd perceptions on this forum as to what has just happened.

Firstly, and simply, NZ pilots pay their union fees like the rest of us and so must be supported when there is a legal case to answer against the company when they act unconscionably.

Secondly, I am certain that there is not a single person commenting here who has put in even 1/10 of the work these guys have for the greater good of the whole CX pilot group than these guys. Many of you simply do not know what you owe them for the massive work they have put in over the past 20 year, and in particular in protecting our FTLs from constant attack.

[Loopdeloop]

The base has been viable for many years with the current frequecy so I doubt very much whether the company is brave enough to close the base, even with the upcoming type change.
What's more likely is that they'll try to find a way to push for the Kiwis to pay full NZ tax simply out of spite. After they've run out of appeals of course!

[AQIS Boigu]

...the AOA always seems to support the minorities in CX - also some based guys appear to royally screw it for the next generation; do you really think with all that crap there will ever be another Canadian/Oz/Kiwi base in CX?

Stuck in HKG forever!

[Shep69]

I don't think this will affect basings; at least from a legal standpoint. Many forms of ADL apply to citizens of a country and will kick in if there's any form of operation or trade into the country. Some apply regardless of where the national is employed (although there might be issues of enforceability). There's an easy solution; do the right thing and don't try to divide and trick in order to put strings on the contract or use them as a negotiation tool to play groups off against each other. Or use the privilege of working for more years due to age to force someone onto a new contract (which is legally equivalent of saying you can work 10 more years only if you're a white male). Most of us would cry foul on a first read of a contract that did this ("something's not right here") -- the company just need heed. Most of the AOA's inputs are constructive in nature--often bringing stuff up which does everyone a favor (especially the company) by indicating what the company is doing breaks the law and opens them up to fines and/or litigation or other forms of action. Being an international carrier, we don't operate in a cozy bubble in Hong Kong. Using the "our interpretation" approach to do whatever it wants to carries little weight amongst judges and juries elsewhere.

In any case, how many bases/basing slots have we opened, and how big of a boon have these been ? Has it been 100 slots available or 2 ?

If it was an intent to use US onshoring (or onshoring anywhere else) to try to force a new C scale or hire DEFOs on a lower pay scale, worse COS, etc. rulings like this establish precedent that this won't work. It also makes a strong argument for a unified COS/pay scale and equitable across the board pay increases which was a theme of the last 'negotiation.'

[Anotherday]

Wasn't saying the guys hadn't worked hard for the union just stating the simple fact that the court case has shown they are employed under NZ employment law which doesn't have a retirement age. Just like AirNZ. Therefore, just like Air NZ, at age 65 when the first of those on the NZ base hit 65 and can't legally fly to HKG but have the right under NZ law to be still employed by the company one of three things will happen:

1) The company finds the employee alternative employment within the Cathay group.
2)The company pays out redundancy.
3)The pilot voluntarily retires.

Given the chance of #1 being remote, why would you take retirement knowing the company will haveto pay you 2-4 years? annual pay as redundancy instead. From the company's perspective why pay out redundancy everytime crew on the base hit 65 if closing the base may be cheaper.

I'm probably completely wrong.

[sleepercell]

Loopdeloop base has been viable for many years with the current frequency
Really?..viable?...or have they begrudgingly lived with it?

Low frequency, high sickness rates and poor reserve coverage.

This ruling has exposed what many perceive as a vulnerable base, simple as that. Something will change, time will tell.

[BlunderBus]

Missed the point as usual..it's about the company abusing current retirement age both in hk and on bases to force transferees to sign new contracts on lesser pay than they were already on to get the basing..or remain on one. Or,like the USA...once on the base, impose a hefty pay cut!! $1300 USD/month for F/O's. What can happen now is ALL NZ based pilots can sue for their original salaries and age 65 retirement be reinstated.. Not forced out at 55 because they wouldn't accept onerous salary and contract cuts. The no limit retirement age in NZ is irrelevant flying CX aircraft.
When will they EVER learn!! Wait until you see the lawsuits when they go 'onshore' USA.

[Bob Hawke]

Ahh Pilots, so problematic!

[Captain Dart]

No we're not. We're just 'glorified bus drivers', Bob!

[Ex Douglas Driver]

Front page of the NZ Herald website
Kiwi pilots keep jobs after retirement row - Business - NZ Herald News (http://www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=11377965)

Kiwi pilots keep jobs after retirement row

1:28 PM Monday Dec 22, 2014

Two Kiwi pilots have won the right to stay in their jobs, after arguing that being forced to retire at the age of 55 was discrimination under New Zealand laws.

David Brown and Glen Sycamore are employed by New Zealand Basing Limited (NZBL) as senior captains, flying aircrafts for Cathay Pacific Limited (Cathay Pacific), of which NZBL is a wholly owned subsidiary.

Under both men's employment agreements a clause stated they were required to retire at the age of 55.

Mr Brown and Mr Sycamore will turn 55-years-old in 2015, and have claimed being forced to retire then was discrimination.

Mr Brown and Mr Sycamore took their argument to the Employment Relations Authority, and the matter has now appeared before the Employment Court.

Following the incorporation of NZBL in 2000, both pilots signed employment agreements, the authority said.

The employment agreements signed by the pilots included the usual conditions of employment, and a provision that the retirement age would be 55.

In 2009, the pilots had the opportunity of agreeing to slightly different terms and conditions of employment, including a retirement age of 65.

However, neither of the pilots elected to transfer to the new employment agreement at that time, the authority said.

The pilots then requested to transfer to the new employment agreement in order to have a retirement age of 65, but NZBL refused their request, the authority said.

The pilots claimed the law of New Zealand applied, not the law of Hong Kong and under the Human Rights Act, it was unlawful for NZBL to discriminate against them because of age.

However, NZBL contended the laws of Hong Kong and not New Zealand applied to the situation.

NZBL claimed the retirement age for both men under their employment agreements was 55 and such retirement age was lawful under the laws of Hong Kong, as that was stated in their employment agreements.

The matter was first taken to the Employment Relations Authority, however authority member Anna Fitzgibbon passed the matter straight through to the Employment Court.

"I am persuaded that the matters arising are important questions of law. There are important issues of law as to the applicability of the law of New Zealand or of Hong Kong and the interface in the particular circumstances with the Human Rights Act," Ms Fitzgibbon said.

"Further, there will be a number of employees who will be affected by the decision. The other matter which I take into consideration is the fact that the parties require the matter to be dealt with urgently given the Captains turn 55 years of age next year."

The Employment Court in Auckland has found it would be discriminatory for NZBL to require employees to retire on the grounds of age as defined in the Human Rights Act.

Judge Bruce Corkill dismissed the airline's claims that the laws of Hong Kong and not New Zealand applied to the situation.

"I am satisfied that recognition of Hong Kong law rather than New Zealand law would in the present circumstances be unjust or unconscionable, having regard to the significant importance which should be attached to New Zealand's age discrimination legislation, and to the conduct of NZBL in the particular circumstances." Costs were reserved.

Mr Brown and Mr Sycamore's lawyer, Garry Pollak, said the Employment Court made a "bold decision" they were very pleased with.

"They've been employees of [Cathay Pacific] for many many years and they are both senior pilots, the Employment Court really spelt it out in all the details and factual background quite accurately.

"There is still an appeal period of two weeks, I am not sure if the company intends to appeal but that's their right."

Comment was being sought from Cathay Pacific Airways Limited.

[Arfur Dent]

Don't you just love the way Cathay stumbles around the world expecting the pathetic Hong Kong labour laws to be relevant in modern democracies. If it wasn't so tragic it'd be funny.
Of course it's nobody's fault is it. Just like fuel hedging losses. And freight cartels. Wonder how RH will spin this. :mad:

[VR-HFX]

This is all so f.....g unnecessary. The company needs them, they need the company. What in the hell is going on?

Like many on extended OZ bases, the best outcome is to return to HKG and do some time before pulling stumps. Strangely CX is a HKG company and we all knew what we were signing up for...however flawed.

There has to be a two-way split in all this.

If the company wants to get rid of guys on a base at 55 then just close the bloody base.

A Sydney "big-base" would work better anyway.

But let's be practical folks, fighting minor battles on the perimeter does nothing to protect or enhance the core.

FWIW

[Air Profit]

Missing the point. It's not about whether the company 'needs' the pilots or not. It's about spite and ultimate control over peoples lives. Whether it be retirement age, rostering or command upgrades, the company enjoys the unhealthy influence they can wield against us in all cases. I emphasis the phrase 'wield against us'. In a normal, law based society there would be rules and regulations that would govern the behaviour of both sides. In CX, the complete absence of real labour protections means that the Swire's have developed a corrupted and mean spirited attitude towards their employees. That is why there are SO many court cases pertaining to labour strife in HK between staff and the company.

Our managers feel they are doing 'good' work on behalf of the owners. In reality, they are soulless creatures who's most important decisions seem solely designed to make individuals and groups within the company as unsettled, miserable and insecure as possible.

What a heck of a way to run a business. Slowly but surely the laws of other jurisdictions around the world will force CX to get into line with 21st century norms. They will only get there through being dragged and beaten into submission. Sad but true...:ugh:

[monster330]

Loved that first line of yours and bang on too.

They do don't they.

Like the IQ challenged kid pushed out the front door by his mum, stumbling around and crashing into sh!t, one unbalanced step after another....

...generally f**king about in a most uncommon way until some responsible sod (1st world country) shows him the way home with an assertive nudge to the shoulder....

....returning home to his mothers bosom with a big toothy grin and sense of achievement.

Go CX!!!

[Shep69]

You know it really isn't that hard just to do the right thing. And it usually saves you money in the long run anyway in many ways.

And one usually finds out any influence and power they think they wield isn't really there at the end of the day. Like it or not any real power you wind up having comes from your employees confidence and trust.

[propaganda]

I have just read the article in today's NZ Herald and the final sentence from CX would suggest this matter is far from over.
John Warham's book " The 49ers" gave the lay person an insight into the management practices within CX at the time. If I were a betting sole, I reckon those practices are now called business as usual.

[Bob Hawke]

Where's The Management when you need an insightful company spokesman on the subject?

[Arfur Dent]

Recovering from the $5 Million HKD Heads of Department dinner?:ok:

[Truckmasters]

Brown v New Zealand Basing Limited [2014] NZEmpC 229 (15 December 2014) (http://www.austlii.edu.au/cgi-bin/sinodisp/nz/cases/NZEmpC/2014/229.html?stem=0&synonyms=0&query=Civil%20aviation)

Should you wish to read the legal summary you will find it on the link above.

[BlunderBus]

JUST BEAUTIFUL..I LOVE IT

[arse]

The company will be considering two options:

1. On-shore the base, with the result being the requirement to pay NZ tax, which I can't imagine would be considered a WIN by the majority on the base; or

2. Close the base. Surely, not a popular option.

As someone said earlier, ... this could end up a "Pyrrhic victory".

[Air Profit]

...it's coming...

[Numero Crunchero]

How about a bit of perspective. Look at all the cabin crew who were supposed to leave in their 40s who are now legally allowed in their 50s?

For the pilots - the 'monetary package' has changed enough to make working to 65 more a necessity rather than an option.

EG just from my point of view - being Oz based has cost me a few years of extra work for nothing ie if i had stayed on COS99 and retired at 55 my total assets would have equalled X. To get to 'X'on the base will take me till 58or 59 at least due to local tax, lower salary, loss of benefits etc

Not having a whinge - my choice to take the salary/benefit cuts - but often people working past 55 are doing so to recover lost benefits...it is not necessarily about getting extra gravy from the trough!

[LongTimeInCX]

Curtain Rod
Your analogy, albeit brutally honest concerning cabin crew, is clearly correct. The same comparison could also be used for those managers in many office positions, hence the envy/jealousy we know many of them have - I'd wager after a one week 'conversion' many of us could do their job adequately, and would get better at it very quickly. Conversely, letting arbitrary non-pilot managers loose on the a/c we fly, would no doubt mean we would lose a lot of airframes and bodies.

But back to thread, I think it's great the 2 boys have had a win, no doubt to be appealed, and all the possible result scenarios of what CX may do, including the option that CX may just abide by the courts decision, were well thought through. Yes there's an outside chance CX may do something dumb to show they're 'still in control!', we've all see them drop a dollar to pick up a cent, and at times rationality has not been their strong point.
But overall, good on the boys.

As for people you say need to stay longer because they took a base.
Rod, I normally agree with most you write, but NC I'd suggest explains well the why one often stays longer in financial terms. Most didn't govon the base for the money. It was a lifestyle issue.
I know of parents who've gone because their kids had either mental or physical disabilities, and the help in HK was not as good as they could obtain in their home country. Others are looking after ailing parents to save them being 'well looked after' in a nursing home.

Many take the base because they married someone above the line on the hot crazy matrix, and whilst we all know deep down they are all bat-**** crazy to a degree, keeping them happy saves them hitting the 10 crazy and having a chat with a divorce attorney. So off on a base they go to bring 'em down to the best case 4 crazy line, (all single guys should watch the universal hot crazy matrix video - might save you a few bucks in the long term!) but the temporal plan for their retirement date often now gets stretched out.

So the hair gel brigade have to wait another year or 5.
Whoopdi-effndoo.
Their turn will come.

[Trafalgar]

Curtain. Get over it mate. The company raised the retirement age to 65 years ago. Several people refused to be discriminated against due to age (taking a pay cut at 55). They fought the company and won. The company is the culprit (yet again), not the pilots. They have every right to go to that age on their old terms. They were forced into an impossible situation by the company, that has now been addressed. Now they can choose to retire at 65 like everyone else. Stop beating a dead horse. You should be happy that the pilots actually won a point of principle against the company.

[1200firm]

Here it is. Compulsory viewing for all ages.

https://www.youtube.com/watch?v=hKWmFWRVLlU&feature

[Shep69]

I think the major point here is that it's not a matter of what one considers 'fair' or not but that the company is breaking the law in NZ (as well as potentially several other venues) and shouldn't be doing this in countries it wishes to do commerce with--and by doing so faces not only civil litigation but also action by the governments themselves. Just like if they were breaking the flying rules, other discrimination rules, alcohol rules, customs laws, or industrial safety rules within that nation. A HKG based head in the sand approach or convenient 'interpretation' doesn't bear any relevance in that these cases will be adjudicated in and by their respective country. If CX doesn't like that fact they'll have to stop flying there or going through their airspace.

Disturbing is rather than accept that fact and deal with the situation--by coming up with a mutually beneficial solution which complies with host nation laws (and is actually in everyone's best interest as well; we NEED these experienced and capable pilots to continue with the company if they wish to do so)--they are want to pi$$ away all kinds of money in legal resources and fines. Moneys that could be used elsewhere to do good things. OUR money.

[CYRILJGROOVE]

The argument re signing a contract that stipulates retiring at a particular age is nonsense....just as you can't sign a contract to exceed AFTLS as the law always overrides the contract, certainly in the civilised countries as NZ etc. If curtain Rods way of offering contracts was legal then CX would offer cabin crew contracts to 40 and keep feeding in young cheaper crew......fact is they can't do it even if the young ones voluntarily signed to leave at 40........your off target on this one Rod.

The fact that some folks could not get their head around it and move on is why the union could not get a consensus and achieve a better RA deal that would have at least had more increments in the pay scales and the ability for all to choose to retire after 55 at some point and no illegal discriminatory pay cut when attaining 55.

You can't stop the inevitable and we as a group lost this one badly. I would hope that this subject could be revisited for a more equitable result rather than the company getting a complete freebie where the pay cut given at 55 basically pays for the bypass pay. I hear Canada has had some payback of the paycut......is this correct ?.

[AQIS Boigu]

PW sold out every FO and SO during the CoS08 negotiations (if you can call them "negotiations") whilst "forgetting" to get the 25 year housing deal in writing (maybe he got too excited about more work) - all he was interested in was working beyond 55 and he didn't give a rats arse about anyone below him in seniority awaiting a base, type change or an upgrade. Can't blame CX since they saw another opportunity and used it to their advantage.

Good stuff what these two Kiwi guys did but this will come at a price and the detriment of the other NZ based pilots; either through on-shoring (more tax) or yet another base closure.

Same what just recently happened at Lufthansa - a couple of "old farts" wanted to work beyond 55. They won in court and now LH wants to push every pilot's RA to 60 so their own retirement scheme doesn't get overloaded. This is what all these recent strikes were about.

Fact is that the next generation of pilots will always be worse off than the one 200 numbers above them in seniority - especially in CX with so many ever decreasing pay scales and benefits.

[Shep69]

Curtain Rod,

It is NOT legal in many developed nations to contractually force someone to work at lesser pay or conditions as a precondition in order to continue to work past a certain age so long as legally and medically qualified to do so. The law is quite clear. You can't sign it away any more than if it was discovered you have black ancestors you have to agree to work at a lower pay scale. And in this case, as well as in other nations, applies to any individual stationed within that nation, regardless of where there employer is based. In some cases simply doing business with assets that touch the soil of the nation brings the law into play. Doesn't matter where the contract is signed.

[BlunderBus]

65 was offered to everyone..as was the original compulsory retirement at 55. The company needed guys to stay when they woke up to a crewing shortage but just couldnt help themselves ..as always.. And slapped a pay reduction on the prerequisite list. The law has no problem with 55 but it does with blackmail. They refused cabin crew promotion to ism over contract hours too. Im supposing the argument could propose no commands either unless you agree to 65... How would THAT go down?

[Quantum of Solace]

flyboy007 Not sure why your Jesus/God reference is invoked in a debate about pilots retirement age. Employment conditions are set by Government or negotiation, not by a so called God. They change.
Or do we just do away with any form of aircraft or airline safety as if a 'plane crashes, it is Gods Will.
As to others bleating that by continuing to work beyond 55 these pilots are denying younger and more junior pilots an opportunity for career advancement, Tough, happens in all walks of life. As Pilots are regularly monitored for health and competence, that should be the only criteria whether a pilot can be compulsoraly retired. Nothing to do with 'squandering their pay so cannot afford to retire. The only solace is that the "I deserve the position so go now" brigade is they will be arguing for continuing to work past 55 when they get to that age. :ugh:

[SMOC]

Govt. to raise pilots' retirement age
Japan Feb. 22, 2015 - Updated 04:41 UTC+8

Japan's transportation ministry plans to raise the mandatory retirement age for commercial pilots from the current 64 to 67 years.

[Numero Crunchero]

Which PW are you referring to?

The 2007 negotiations ended up with a very bad deal being presented to the GC - the GC overwhelmingly knocked it back.

The company then imposed the parts of the deal it wanted - such as COS08 etc.

[AQIS Boigu]

NC,

Sorry...I rephrase...

I am talking about the voluntary option to sign across to CoS08 during in the 2009 emergency SLS "negotiations". You said yourself that the deal was **** in 2007 and suddenly in 2009 it was good enough for most captains and a few FOs to take it. On that day everyone's goalpost got moved substantially; particularly FOs and SOs.

The PW I am referring to is the former AOA President and now negotiator.

[AnAmusedReader]

Quote from NC's post:

How about a bit of perspective. Look at all the cabin crew who were supposed to leave in their 40s who are now legally allowed in their 50s?

They are being screwed by CX too. It's not "legally allowed", it's contractual. There's no law in HKG that says a cabin crew can't work to 65. But CX forces HKG crew to retire at 55 although based cabin crew in the UK, USA, Canada have NO retirement age. No wonder the HKG crew are pi$$ed off. And to make matters worse their PF is based on basic salary excluding rank allowance, which for ISM is a big loss.

We aren't the only employee group that is exploited on age discrimination grounds.

[Freehills]

Well, from that POV even Tony Tyler was exploited. Forced retirement age of 60, despite HK not having a legal retirement age for CEO, but wanted to work longer, so left for IATA.

[AnAmusedReader]

Oh come on Freehills - did you ever believe anything TT said?