Air Canada Age 60 Limit To End

[bcflyer]

The CHRT does not make law. Their ruling contradicts the fact that mandatory retirement is still legal at a federal level in Canada. You can say all you want about the "trend" and what has happened at the provincial level. The fact is that until there is an actual law on the books for federally governed companies stating otherwise, mandatory retirement is NOT illegal.

[OverUnder]

Originally Posted by bcflyer

The CHRT does not make law. Their ruling contradicts the fact that mandatory retirement is still legal at a federal level in Canada.

That's not what the Constitution Act, 1867 says.

There are two broad categories of law. The first is statutory law. The second is case law. The CHRT does not make statutory law, nor does it have the power to strike down statutory law--it has only the power to interpret the law in making its decisions (case law).

It does make case law. Regarding case law, if your read the jurisprudence, you will find that the CHRT has exclusive jurisdiction within its own domain. That means that even the courts cannot "step into the shoes" of the tribunal to substitute their own determination of the facts of each case. Only the tribunals can make the determinations (case law) for which they have been delegated exclusive jurisdiction. The courts supervise the Tribunals to ensure compliance with legal principles, but they do not have the power to make the determinations (case law) based on the facts of the case in the context of the statutory law. That is why their role is called "judicial review," not "appeal." They review the decisions for compliance with the law, and even if they do not agree with the decisions, they cannot change them so long as the tribunal has properly exercised its jurisdiction to arrive at its determination.

You may come across the term, "to err within its own jurisdiction;" you can find the term in the case law databases (www.canlii.org) as well as in administrative law textbooks. Tribunals are allowed to err within their own jurisdiction, so long as the error does not violate their duty to comply with their statutory obligation to act fairly, in compliance with the principles of administrative law.

So, the CHRT's decision of August 28, 2009 is law. It is law that is precedent. And although the precedent is not binding on other courts, other tribunals or even the CHRT itself, it is highly persuasive and may be cited as authority by other tribunals or by the courts themselves as authority for their own decisions. In fact, that is just what happened in the Federal Court judicial review of the original V-K Tribunal decision. The court cited, with approval, the case of the CKY television station employee that was decided by a labour arbitrator, in arriving at its decision on Section 15(1) of the Charter.

Case law is called "jurisprudence." There is a slew of case law text series that are regularly cited by counsel in argument of their cases and relied upon by the tribunals, arbitrators and judges as arbitral jurisprudence, human rights jurisprudence, etc. as authority for the arbitrators, tribunals and courts to follow in subsequent cases. Even the Supreme Court of Canada frequently cites arbitral and tribunal jurisprudence as authority for its own decisions.

The whole point, of course, is to establish a record of precedent so that each ensuing case does not have to be argued from scratch, solely on first principles, and so that we have a fairly good expectation of the outcome of similar cases, minimizing the need to litigate.

So, tribunals do make law. And right now, the law in the federal jurisdiction, subject to judicial review, is that the mandatory retirement exemption to the general prohibition against age discrimination found in the Canadian Human Rights Act violates Section 15 of the Charter of Rights and Freedoms, and is not saved by Section 1 of the Charter.

In summary, mandatory retirement in the federal jurisdiction is illegal, according to the existing law.

[Rubberbiscuit]

I am not an AC employee, but have followed the "Flypast60" discussion with interest. My current employer does not have a mandatory retirement age, nor did any of my previous ones. I honestly do believe this is the way it is headed right across the board. However, there are a couple of questions I still have not seen a clearcut answer for. How can it be discriminatory by AC to make pilots retire at an age limit voted in by the pilots themselves? Also, did anyone in the pilot group, in particular those who are fighting it now, rally against the age 60 limit back in the 80's when it was voted into the collective agreement, and if they didn't, why not?

[Lost in Saigon]

Originally Posted by Rubberbiscuit

How can it be discriminatory by AC to make pilots retire at an age limit voted in by the pilots themselves?

The pilots have never actually voted on the retirement age in the contract. (Age 60 retirement is not even in the contract. It is only in the Air Canada Pension Plan).

There was only a vote held that asked if the membership supported ACPA in fighting to maintain age 60 retirement. There was also Wages and working Conditions survey that asked if age 60 should be maintained.

Even so, you can't just vote in something that contradicts basic human rights(age, sex, religion, race, etc). Imagine if the pilots got together and voted in:

No women pilots can be Captain.

No visible minority pilots can be Captain.

No pilot under age 45 pilot can be a Captain.

No pilot over age 60 can be Captain.

Also, did anyone in the pilot group, in particular those who are fighting it now, rally against the age 60 limit back in the 80's when it was voted into the collective agreement, and if they didn't, why not?

Yes, there have been previous, unsuccessful attempts to change the retirement age. But as you see all around the world, The Times They Are a-Changin'

[engfireleft]

The fact is that until there is an actual law on the books for federally governed companies stating otherwise, mandatory retirement is NOT illegal.

Age discrimination is illegal though, and last august the CHRT rejected ACPA's argument and agreed with Vilven and Kelly that they were being discriminated against. You may have heard they are being reinstated?

Your argument (and ACPA's actions) are a bit like the Captain of the Titanic ignoring the iceberg warning because he hadn't actually hit it yet. But the collision is coming and no one including you will like the results.

[clevlandHD]

What a mess!

Age discremination is everywhere in Canada: CPP, vote, drinking and smoking, you name it.

As for comparing retirement age to being black or a women, that's a bit too much. Everybody at AC will turn 60! a handful will change sex and none will change ethnic background.

The court should perhaps force the limit to go with the next contract. Time for all parties to find solutions to the problem(like no two +60s in the cockpit).

Also, I thought the there was such a concept as "no retroactivity" when it comes to law, ie the guys who were forced to retire could not come back.

Still, I cannot see too many winners here...

[Lost in Saigon]

Originally Posted by clevlandHD

Age discrimination is everywhere in Canada: CPP, vote, drinking and smoking, you name it.

Yes, age discrimination is allowed in certain instances. But haven't you heard yet? Just like almost every other jurisdiction in the world, the CHRT has decided that retirement age is not one of them.

[engfireleft]

It's a mess because ACPA and many of our pilots are incapable of recognizing inexorably changing conditions and adapting to them. Not a good characteristic for airline pilots in my opinion, but one that Air Canada seems overly inflicted with nevertheless.

Your opinion that age discrimination is not as serious as the other types is shared by our union and many of our pilots as well. The law however does not agree with you, and that is what counts here.

You are right though that every pilot at Air Canada will (hopefully) turn 60 at some point. One would think they wouldn't want to be discriminated against when they do reach that age. I know I don't want to be.

[ACAV8R]

Lost in Saigon wrote "The pilots have never actually voted on the retirement age in the contract. (Age 60 retirement is not even in the contract. It is only in the Air Canada Pension Plan)."

LIS, the pension provisions are part of the overall collective agreement, which was approved by a majority of the pilots, so thus the pilots have voted on the retirement age, albeit indirectly.

[Lost in Saigon]

Originally Posted by ACAV8R

Lost in Saigon wrote "The pilots have never actually voted on the retirement age in the contract. (Age 60 retirement is not even in the contract. It is only in the Air Canada Pension Plan)."

LIS, the pension provisions are part of the overall collective agreement, which was approved by a majority of the pilots, so thus the pilots have voted on the retirement age, albeit indirectly.

The "Air Canada Pension Plan - Pilots" is mentioned in the collective agreement, but it is not part of the collective agreement. Retirement age is not mentioned anywhere in the collective agreement.

If it is, please point out where, because I have never seen it, and I certainly have never voted on it.

[OverUnder]

Originally Posted by ACAV8R

LIS, the pension provisions are part of the overall collective agreement, which was approved by a majority of the pilots, so thus the pilots have voted on the retirement age, albeit indirectly.

Not correct. When the proposed contractual changes are sent out for vote by the membership, the union does not send out the whole collective agreement for approval, nor does it send out the Pension Plan agreement for ratification. Rather, it sends out only the proposed changes to the collective agreement.

The fact is that the age 60 restriction has never been included in the ratification package, so the pilots have never voted on it, either in favour or against, in the context of contract ratification.

Just like they didn't vote on the newest MOA that is intended to put both George Vilven and Neil Kelly back to work in a subordinate, discriminatory class of work, with total disregard of their seniority rights under the collective agreement. The Association simply executed that agreement with Air Canada, creating a whole new subclass of members (and a whole new set of complex implications for all future contract negotiations) without even consulting with the two pilots in question and without giving the membership an opportunity to review, discuss, deliberate the serous long-term implications of the agreement or approve the agreement through ratification. This is called democracy, ACPA style. Another name for the MOA could be "Picher 2010."

[MackTheKnife]

In numerous threads I have heard the term "You signed up for age 60".

To begin with I cannot find any reference to it in the contract.

I have also searched both the Air Canada and the ACPA web sites trying to find an actual copy of the "Air Canada Pilots Pension Plan " to find where it categorically states age 60 and came away empty handed.

Where can this elusive document "Air Canada Pension Plan - Pilots" be found?

[777longhaul]

The pension plan is not part of the acpa contract. WE ALL got SCREWED right up the wazo, on the pension issues, by ac and the fing govt judge, who is squarely in the ac field of influence.

We lost our indexing, and many other issues with the pension. That is just insane, considering what we all gave up to get an indexed pension. For those that dont know this, the pension is not part of the contract, it is a separate issue, that was kept that way, so that the "books" would look better at ac over the past years. The insane part, is the pilots at ac agreed to help them out with fixing the books, and then got totally screwed by the co. Then, when Milton and crowd, found out about this issue, they laid waste to us. Milton's pension is enormous, PLUS it is indexed. I have been told his pension is $500K per year, plus indexing. Other senior management types, have fantastic pensions and medical perks as well.

The ac pilots pension, and the cai pension, are still separate pensions. That is another complete fiasco.

Some...not all of the FP60 pilots are very worried about the ac pension. If...ac goes back into bankruptcy, as they almost did last summer, the pilots pension could be destroyed by the courts etc. The defined contribution will still be there, but the general revenue section could be destroyed by the creditors, and courts etc.

It is another reason why the age 60 issue will benefit others who are approaching that age, but are not yet 60.

My friend at West Jet told me the age 60 issue was over very quickly, and that it was a no brainer for the pilots, management agreements. Wow, what a concept. They go to 65 as Captains, and then more as F/O, if they want/need to.

[bcflyer]

My friend at West Jet told me the age 60 issue was over very quickly, and that it was a no brainer for the pilots, management agreements. Wow, what a concept. They go to 65 as Captains, and then more as F/O, if they want/need to.

I'm curious to know what kind of pension they have at Westjet? Is it based on your best 5 yrs? Oh wait they only have one aircraft type so everyones pay is the same once you top out anyway. (which will happen well before you reach retirement age) Come on, at least compare apples to apples...

[bcflyer]

In summary, mandatory retirement in the federal jurisdiction is illegal, according to the existing law

So every federal employee who had to retire at 65 can sue the government for unlawful dismissal and be re-enstated at their previous pay position and pay scale?
Funny I haven't heard of many doing that....

[OverUnder]

Originally Posted by bcflyer

So every federal employee who had to retire at 65 can sue the government for unlawful dismissal and be re-enstated at their previous pay position and pay scale? Funny I haven't heard of many doing that....

It is important to get the terminology and context correct. First, the federal jurisdiction encompasses multiple industries, in addition to the federal civil service. Transportation, communications etc., most of which involve private or public companies, not government employees.

Second, many federal government employees are covered by separate statutes with respect to mandatory retirement. For example, the military, the police, the judges and some of the public service unions.

Third, one doesn't "sue the government for unlawful dismissal." One files a complaint with the CHRC, or a grievance with one's union. Big difference. There are currently many, many complaints filed with the CHRC by non-airline employees. And yes, most seek the same remedies as in this dispute: reinstatement, damages etc. In other words, to be put back in the position they would have been had their rights not been breached.

One of the most recent cases involved a television station in Winnipeg. That case was decided in favour of the employee by a labour arbitrator, and was cited by Federal Court in the V-K decision.

Fourth, in most cases it is not even necessary to file a complaint because the employers have already abandoned their previous policies of mandatory retirement, in advance of either legislative change or court-determined change.

[engfireleft]

bcflyer

Your arguments are based on emotion and what you think is right concerning your progress up the seniority ladder at Air Canada. It should be obvious to you by now that this issue is national in scope, and is not at all concerned with Air Canada seniority or how we are paid. It should also be obvious to you that ACPA has not given you any of the facts you need to properly understand this issue and how it effects you. All of the information posted here and on other sites that you refuse to believe should have been provided by ACPA in explaining how they are complying with Canadian law.

Instead of spinning your wheels repeating irrelevant and uninformed arguments like so many do, why don't you demand your union address this issue in the responsible manner they are obliged to?

[bcflyer]

Lets see... 80% of Air Canada pilots are still in favor of age 60 retirements. ACPA is the representative of said pilots and as such has decided to continue the fight. I don't see a problem with that at all.

The information you talk about has been mostly posted by the Age 60 group and is obviously biased towards their way of thinking. (Remember the statement that both Vivien and Kelly would be reinstated on the 777? Doesn't look like thats going to happen does it?)

This battle is far from finished....

Back to enjoying my summer!

P.S. Engine Left Fire, I've never seen anyone as eager to have their career progression stymied as you appear to be..

[OverUnder]

Originally Posted by bcflyer

Lets see... 80% of Air Canada pilots are still in favor of age 60 retirements. ACPA is the representative of said pilots and as such has decided to continue the fight. I don't see a problem with that at all.

Let’s see. ACPA calls it “defending the contract.” A more appropriate phrase would be “defending the delusion.” Defending the delusion that because 80% of ACPA pilots wish it to be so, it will be so. Defending the delusion that the collective agreement provision could ever supersede the provisions of the Canadian Human Rights Act that make the collective agreement provision illegal. Defending the delusion that the law that applies to everyone else in this country doesn’t apply to ACPA pilots. Why doesn't it apply to them? Because they don’t like it, so therefore they can just ignore it with impugnity.

You don’t see a problem with that? I do.

Originally Posted by bcflyer

Remember the statement that both Vilven and Kelly would be reinstated on the 777? Doesn't look like thats going to happen does it?

Wrong. The Tribunal remedy decision that will answer that question hasn't yet been released, so your assertion has no merit. Further, it contradicts the evidence and argument at the hearing, which suggested just the opposite.

According to information provided by the Fly Past 60 updates (that has not been contradicted) at the hearing neither Air Canada nor ACPA opposed the reinstatement of either individual. The only reason that they were not reinstated immediately, according to the same information, was that there was an argument by Air Canada that their seniority should be discounted by the time period of their absence, and although the Tribunal Chair pushed for agreement on immediate reinstatement at the hearing in April, he was ultimately not willing to order reinstatement until the seniority issue was resolved in his final decision.

The key, however, is that even accepting Air Canada's argument on the discount (which, quite frankly, is absurd, given the fact that never in the history of ACPA or CALPA has a returning pilot had his seniority discounted, with one pilot returning after a 17-year absence to the seniority position he would have held, had he not left), both pilots would be able to hold the right seat of the B777. Kelly would be #1 on the list, obviously, and Vilven would be near the middle of the list on the Toronto base. Hence, even using Air Canada's argument, they both will wind up on the B777.

So, the suggestion that they won't be returned as B777 First Officers is totally unfounded.

One other thing. Don't you find it appalling that you have been provided almost no factual information by your Association regarding the substance of the proceedings as well as the status of the various proceedings on this issue? Don't you find it appalling that the Association has effectively censored any internal debate whatsoever on the issue, and refused to allow anyone present any viewpoint other than their own, as a balance to their own determination to continue the process forever, at any risk?

At the outset of this dispute, at least the Association published the transcripts of the proceedings. But since the Tribunal went to an electronic recording basis, rather than using a court-reporter transcript basis, you have had practically zero factual information regarding substance of the main proceedings.

Further, with the shutdown of the ACPA Forum, you essentially have no effective internal means of getting or exchanging any information whatsoever, leaving you almost completely in the dark as to what is going on. Are you happy with that?

God help you when these proceeding decisions are ultimately rendered and the chickens eventually come home to roost—you are likely to wind up in shock and it will be nobody's fault but your own for not demanding continuing full, timely and proper disclosure of the facts from those who have accepted the responsibility to look out after your interests.

[engfireleft]

P.S. Engine Left Fire, I've never seen anyone as eager to have their career progression stymied as you appear to be..

There are many things that will delay my career progression far worse than this issue will, and already have. Moreover, the level of stagnation provided by this has yet to be determined, but will not be anywhere near as cataclysmic as ACPA would have you believe. I can tell you with certainty however that ACPA has not yet done a single realistic thing to minimize the impact.

I believe forcing people from their jobs based solely on their age is discriminatory and I will not condone doing so to further my own interests. A big part of that is knowing that I will eventually be that age and have no wish to be discriminated against myself...an example of forward thinking that many of our number appear incapable of.

Most of all, I believe that a union has an obligation to responsibly represent the best interests of all its members in compliance with the laws of Canada. In this case our union is pursuing their own agenda with total disregard for the reality of the situation and is flagrantly violating their duty to provide fair representation. If the officers of the union were the only people hurt by their actions I would be content to sit and watch them bury themselves, but this is causing grievous harm to all of us who will end up paying the price in ways beyond the huge financial penalties.

I encourage you to extend your thought process beyond your own immediate self-interest and instant gratification of moving up a number on the seniority list.