Air Canada Age 60 Limit To End

[Canoli Driver]

Thanks.

I suppose Im having a bit of trouble grasping this age discrimination thing with you AC guys. I alway thought you had a great pension so it would be nice to have the retirement. (unless you still love flying).

Some retire at 60, some at 65, some at 55 still? Not sure. Didn't Cathay just increase their retirment age?

Anyway, I just was wondering if you guys are going for unlimited age...ie: you dedice. Because that to me seems crazy. But then who is really qualified to say what the age should be?

You mention its up to the operator to decide. Is not Air Canada weighing in on this? Did they not decide 60 previously...

Regards.

[cloudcity]

I suppose Im having a bit of trouble grasping this age discrimination thing with you AC guys. I alway thought you had a great pension so it would be nice to have the retirement. (unless you still love flying).

Great questions but it's not really complicated.

The planet Earth flies past 60 and has done so for eons, with the exception of Air Canada.

Virtually ALL of Air Canada's pilots cannot meet the maximum years of pensionable service if they go out the door at the arbitrary age of 60 due to previous jurisprudence which allowed them to be hired past the age of 28.

The membership, virtually all of whom cannot reach max pensionable years of service at 60 because of the hiring age factor, in lieu of a sensible plan, appear to have wound up misrepresenting themselves to the extent that they have no other road to continued employment and pension accrual, other than through Human Rights action, the only avenue presently available.

Is there enough leadership out there on either side to break the hugely expensive logjam without the courts doing it for them? That's the big question.

[engfireleft]

Yes, we have a pretty good pension. But you have to have 35 years service to get the full amount because it was designed when people got hired at 25 years old or younger. For years now the average age of a new hire has been 35, which means at best under the rules to date they would only get 25 years service and the proportionately reduced pension. Most people fighting this lack the foresight to see that now, but you can be sure in 20 or so years it will become front and centre in their minds and they will undergo a truly miraculous change of attitude.

I don't think anybody realistically expects to be flying when they are much older than 65 because that is the age ICAO has specified as a recommended maximum. But it isn't up to them to make the case for the upper limit, it is up to the industry and operator who hasn't done so yet. The operator doesn't decide either. They present a case for BFOR, or Bonafide Occupational Requirement to the CHRT arguing that beyond a certain age pilots are not employable given certain restrictions to their ability to fly airplanes. The CHRT then decides if it is a valid argument or not to permit age based mandatory retirement.

Of course it may be in the company's best interests to force as many pilots out as they can before the law makes them stop. Because each guy that comes back has most of their salary paid for by the pension plan instead of the company. Pretty good deal for them I'd say, and the union is fully supporting it.

[Canoli Driver]

Interesting. Where I am, we dont have a pension, but rather a % of salary per year. Which is better, I don't know, but many have parlayed the annual investment into small fortunes, and some have wasted it. Also, we have ab initio, which is a contentious issue... and creates a huge expense as well...some measurable, and some not. How can you measure the cost of hard landings over time?

Anyway, its easier to see now how this thread has been so strong for so long as after your explanation, its more clear how the parties are polarized depending on what side they are on. Its certianly not as simple an issue as it is at first glance. Maybe Air Canada should realize the money it saves and the value it has in hiring older more experienced pilots and shorten the time to max pension as well as increasing the retirement age.

One thing is for sure, you cannot satisfy 100% of the people 100% of the time.

Good luck with the battle.

[ACAV8R]

"Because each guy that comes back has most of their salary paid for by the pension plan instead of the company..."

EFL, I'm not sure that this is correct. Because of the CHRT Remedy Ruling, both Vilven & Kelly are once more active pilots [or will be once they pass their requalification course]. They will no longer be retired pilots, drawing a pension from Air Canada Pensions Administration but will be drawing a salary from Air Canada. They will both be accumulating further pension credits, at least Vilven will, something that they could not do if they were drawing down a pension. I believe that Neil Kelly had in his max 35 years of pensionable service time when he retired so he would no longer accumulate pension credits.

Both, however, will be on the Air Canada payroll, not the AC Retirement Payroll.

Rgds.

[engfireleft]

That's what I would have thought too ACAV8R, but the MOU signed by ACPA and the company before the CHRT remedy came out specified they would continue to receive their pension with their salary topped up by the company to whatever equipment pay they could hold. As well others have mentioned the legal requirement to continue collecting the pension once you start. For what it's worth I certainly hope I'm wrong.

[OverUnder]

Originally Posted by ACAV8R

I'm not sure that this is correct. Because of the CHRT Remedy Ruling, both Vilven & Kelly are once more active pilots [or will be once they pass their requalification course.]

The last two pages of the Tribunal decision contain the order. Paragraph 5 states, "Upon reinstatement, the complainants are to receive the wages and benefits of an active employee including accrual of pension benefits on the same terms and conditions as before their retirement."

Paragraph 2 states, "The complainants are to be reinstated to employment with Air Canada as of the date of this decision..."

In fact, their reinstatement was effected November 8th, the date of the decision. They are active employees undergoing training in the Air Canada training facility and they are being paid wages, not a blended payment composed of wages and pension.

One cannot contribute to a pension plan at the same time one receives benefit payments from a pension plan. In other words, their pension plan contributions are recommenced. The payments that they are receiving as salary come 100% from pilot payroll; none of it comes from the pension plan.

As I understand it, the status of the Memorandum of Agreement that dictated otherwise is now uncertain, but nobody to my knowledge has heard that it has been formally rescinded.

[cloudcity]

It's all laid out in the Order isn't it? The pertinent paragraphs:



X. Order

[174] The Tribunal orders as follows:

1) The respondents are to cease applying to the complainants, s.5.1 of the Air Canada Pilots Pension Plan and the corresponding provisions of the collective agreement Plan;

5) Upon reinstatement, the complainants are to receive the wages and benefits of an active employee including continual accrual of pension benefits on the same terms and conditions as before their retirement;

7) The compensation for lost wages shall be net of the amounts of the pension paid to the complainants from September 1, 2009 to the date of their reinstatement.

9) Air Canada is to pay fifty per cent and ACPA is to pay fifty per cent of the net compensation and profit sharing/bonus and the interest payable.

In other words is it not the case that their entire status as employees is returned to the condition that would have existed had they not been unlawfully forced into retirement in the first place??

That is noted under Seniority:

D. Conclusion on Seniority
[158] It is well established in human rights jurisprudence that the purpose of awarding a remedy is to make whole the victim of the discrimination in the appropriate circumstances.

As in section 7, is it not the case that the pension woud be 'unwound' as noted in the notes that you can see online from the original remedy hearings, the pension received while awaiting reinstatement would be repaid to the pension plan. If it is to be repaid to the plan, are AC and ACPA liable for that, because the Order seems to read that V-K are operating under the contract the same as any other employee, not per the MOA that was issued contrary to the laws of the ACT.

In other words, the damages to the Complainants being net of the pension received only addresses the Complainants but it is the Respondents, AC and ACPA who will also have to bring the pension adjustments back to zero in addition to the damages??

[ACAV8R]

"One cannot contribute to a pension plan at the same time one receives benefit payments from a pension plan. In other words, their pension plan contributions are recommenced. The payments that they are receiving as salary come 100% from pilot payroll; none of it comes from the pension plan."

OverUnder, that is correct and is a CRA rule. I am sure that the CRA will be taking a very close look at this remedy ruling, and will be wringing their hands in glee at the prospect of taxing the settlement amount.

[ACAV8R]

"That's what I would have thought too ACAV8R, but the MOU signed by ACPA and the company before the CHRT remedy came out specified they would continue to receive their pension with their salary topped up by the company to whatever equipment pay they could hold.."

EFL, that MOA is dead in the water, effective with the issuing of the remedy ruling. Vilven & Kelly are now active employees.

[OverUnder]

Originally Posted by ACAV8R

that MOA is dead in the water, effective with the issuing of the remedy ruling.

Not necessarily. The most significant of its provisions have been negatived by the Tribunal order of reinstatement, but that was contemplated in the agreement. It was made subject to the Tribunal order. But I believe that the status of it is largely uncertain.

There may be provisions of the MOA that were not overwritten by the agreement that are still valid. We won't know until the agreement is disclosed (if it ever is).

Also, to my understanding, once an agreement in writing is made, it is valid, unless there is some supervening reason (such as an order) that it is not valid. The Tribunal order did not strike down the MOA any more than it did not strike down the application of the mandatory retirement provision to other pilots.

There is one other point about that MOA: it constitutes a signficant precedent for the Association and the employer. Such as being an agreement that creates a second tier of pilots. Such as an agreement that blends wages and pension payments. Such as an agreement that is executed by the Association without ratification by the membership as required by the Association's constitution. Those are all dark clouds, just waiting to unleash their thunder, lightning and hail on those out there without an umbrella.

[767-300ER]

OverUnder

I think you'll find that the MOA was signed with a "no prejudice" caveat....it means squat to anyone else...

[engfireleft]

It seems that I am (thankfully) wrong about the pension paying active Air Canada pilot's salaries. Wouldn't it be nice, not to mention ethically correct and necessary to receive this information from the union so we don't have to sit around with giant question marks over our heads wondering about basic stuff like this?

Our membership is completely in the dark.

[OverUnder]

Originally Posted by 767-300ER

I think you'll find that the MOA was signed with a "no prejudice" caveat....it means squat to anyone else...

Frankly, I have no idea how a "no prejudice" caveat, whatever that is, changes the fact that the MOA resulted in no benefit to us because it was not only rejected by the two pilots that it was intended to affect, but its objectives were totally frustrated by the Tribunal order giving them precisely what the MOA was designed to prevent them from having.

It did, however, generate a lot more legal expenses for us, and it may have opened the door to further intrusions by government bodies into the workings of our union and the management of our collective agreement. A total fiasco.

If it means "squat" to everyone else, why are we facing a four-day hearing before the CIRB to deal with it, and what is that going to cost us, both financially and otherwise?

[767-300ER]

why are we facing a four-day hearing before the CIRB to deal with it

1. Because some of ACPA members are greedy and are happy to take advantage of "human rights legislation"
2. their lawyer(s) believe(s) in the maxim, "throw enough sh!t at a wall and some of it will stick..."

That's why we will be in front of the CIRB....

[engfireleft]

A union has legal obligations 767, and ignoring those obligations in favour of something you happen to agree this time doesn't mean you will agree with it the next time. It's called "duty of fair representation" and is enshrined in Labour Law for a reason. Read it.


"A trade union or representative of a trade union that is the bargaining agent for a bargaining unit shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit with respect to their rights under the collective agreement that is applicable to them."


If you recall CUPE is doing the exact opposite of what ACPA is doing based on three independent legal opinions, each stating that CUPE would be subject to DFR complaints if they did what ACPA is doing. Why would anybody be surprised at the DFR complaint against ACPA, and how smart is it in your opinion to keep bashing our heads up against the law?

[777longhaul]

This is for 767-300ER

Quote from your above post:

I think you'll find that the MOA was signed with a "no prejudice" caveat....it means squat to anyone else...

Since, you state that the MOA was signed with a "no Prejudice" basis, the only way you would know that, is for you to have seen the MOU. Since no one else has been able to see the MOU, either active, or retired pilots, what else is in the MOU?

Please post the MOU on this site, so the pilots who are affected by it, (active and retired) can see what acpa attempted to do, by having the pension plan pay for a large portion of a pilots salary. That would overload the pension plan in nothing flat. acpa, actually signed off on this issue?

[767-300ER]

Dear Mr/Mrs/Ms/Miss EngineLeftFire

The only reason that this whole issue is in front of the CHRT and the CIRB is because of several greedy pilots from ACPA shrouding themselves in the cloak of "human rights"...full stop.

The AC pilot's pension plan language has been there years, and guess what, it was never declared illegal by anyone...it's only a problem when someone complains... The CHRT wasn't going around looking in Collective Agreements to see if every clause was in compliance with the legislation.

I take no lessons from CUPE, and frankly anyone who does, should be a little ashamed of themselves. CUPE, the union that would bankrupt Air Canada if they got their way by ensuring that Service Directors get pay equity with First Officers...need anyone say anymore?

Let's just review where we are....

Fly til You Die group promised or was promised, return to work for V & K, punitive damages, willful and reckless damages, $big payouts, and a cease and desist order for all future retirements, and a legal precedent.....

What did they get? return to work for V & K, no damages for pain and suffering, no willfull/reckless damages, no cease and desist order and no legal precedent....

It will be interesting to see where this goes...and unlike the 'fly til ya die' sycophants I make no prognostications, I will wait for the courts to decide...and I am not holding my breath on this.

[767-300ER]

777longhaul....

Maybe I have seen the agreement, and maybe not...but why don't you ask your illustrious legal team to publish it on their website??? That way you could all get morally outraged together...

From the reading of the rest of your post, your conjecture is way off the mark in too many respects to make it worthwhile responding.

So ask the other side to publish the agreement....and if they won't, why not???? What do they have to hide????

[777longhaul]

For those that have not looked at the FP60 website. Please read the updates from the following link:

FlyPast60 Index Page

This is the last update from the FP60 site:

Update

Thursday, November 11th, 2010
We have now turned the corner. George Vilven and Neil Kelly will be reporting to work at Air Canada next Wednesday, November 17th. Two days ago, on Tuesday, the morning after the release of the Tribunal's remedy decision, Air Canada Flight Operations personnel called both George and Neil to confirm that they are available to start work immediately, and to ask them which aircraft they each wish to be trained on, and which base they would like to select. Initially they were advised that they would sit in on a new-hire course starting next Monday in order to bring them up to date on the most recent operations procedures. Later in the week they were informed that instead of starting on Monday, they would start on Wednesday next, and that their procedures indoctrination training would last only three days.
Both elected to be trained as First Officers on the B777. Neil elected to be based in YYZ. George elected to be based in YVR. They will commence aircraft ground school immediately after the procedures training, and then be slotted into simulator training as soon as feasible. They are expected to complete their line indoctrination training in January or shortly thereafter, depending upon simulator availability and Homeland Security processing (for the U.S.-based simulator).
The Coaltion is disappointed that the Tribunal did not issue the cease order to prohibit Air Canada from continuing to terminate the employment of other pilots at age 60. However, given the impending other developments, that issue may soon become moot.
The first major development is the impending release of the Thwaites decision, which will likely occur within the next few weeks. Should the 70 complainants in that proceeding win their case on the merits of the actual exemption clause in the Canadian Human Rights Act (i.e. should the Tribunal find that age 60 is not the "normal age of retirement for individuals doing similar work") it is unlikely, in our view, that Air Canada will continue its practice of mandatory retirement of pilots.
Although the Tribunal decision explicitly stated that the decision applied to only those two pilots, the underlying principles of the decision stand to be followed by subsequent decisions. For one thing, Air Canada's evidence before the Tribunal was that Captain Kelly should be paid for lost salary from September 1, 2009 until his date of reinstatement (as a Captain, until he turned age 65, and then as a First Officer during subsequent months) inthe amount of $10,000 per month as the difference between his pension and the Captain's salary that he would have earned, had his employment not been wrongfully terminated. Of course, a lesser sum would apply for the period after he turned 65.
Obviously, $10,000 per month, when considered for virtually all of the other pilots before the Commission and the Tribunal (almost 150, and growing every month), leads to a potential liability of $1.5 million per month, assuming the Tribunal accepts the same Air Canada argument in the impending additional cases, should they be successful on liability, as were Vilven and Kelly. The number is staggering, but quite within the realm of a possible award, especially given that it was based on Air Canada's ownsubmission to the Tribunal. Of particular note is that the Tribunal ordered ACPA to pay 50% of the awarded lost compensation. However, no matter how one looks at the award, the implications are compelling for both Air Canada and ACPA, given the number of complainants in the queue with the almost identical salary profiles.
Should the Thwaites complainants be successful in the impending decision, liability for lost salary to be determined in the subsequent remedy hearing for each of those complainants will not be limited to post-September 1, 2009, because their damage award will not be based on Charter-limited factors, but rather will flow from the respective dates of those complainants' termination of employment, less any discount for mitigation or failure to mitigate. The numbers thus get very large, very quickly.
The combination of these two cases, then, if both are successful for us, will likely lead Air Canada and ACPA to finally reconsider their entrenched opposition to lifting the mandatory retirement provisions in the collective agreement and pension plan.
Aside from these two Tribunal decisions, the outcome of the judicial review that will be heard by the Federal Court commencing November 22nd, may very well end Air Canada's practice of arbitrarily terminating the employment of pilots, based on age. Should the judicial review decision, which is expected to be rendered in February or March, be unsuccessful for Air Canada and ACPA, the Court will then be striking down the mandatory retirement exemption clause within the Act. If that happens, its all over. Mandatory retirement will be eliminated in the entire federal jurisdiction.




The following is from acpa. Please....have a look at the information that is being put out in the acpa bulletin, vs the information on the FP60 updates. Suggest....you compare the dollar figures. Just a suggestion. The back wages should show, (as they do on the FP60 website updates) that they were awarded by the CHRT, wages from Sept to Nov. acpa, has shown it as Sept to Mar.

V/K are group one on the FP60 coalition, there are 4 groups in total, and the numbers are increasing. Aprx 150 pilots so far.

One of the major concerns, for the FP60 pilots, is the state of the Pension Plan, the difference between the AC pilots pension plan, and the CAI pilots pension plan, and the general condition of the funding for the pension plans. They are both, underfunded, and another bankruptcy by ac, and the ensuing raping of the pension plan by the courts, has scared the hell out of many of the retiring pilots. There are many, many reasons, the FP60 group want to have the legal right, to continue employment.



from acpa AGE 60 committee


CHRT Remedy Decision
Age 60 Legal Support Committee - Newsletter #03
November 16, 2010
Fellow Pilots:
On November 8th the Canadian Human Rights Tribunal (CHRT) released its Remedy Decision on the Vilven & Kelly complaints. The decision applies to complainants Vilven & Kelly only and sets no precedent on subsequent complaints.
The issue of reinstatement of Vilven & Kelly had already been conceded by Air Canada and agreed to by ACPA at the time of the hearing as there was no argument available to prohibit AC from absorbing just two pilots. All pilots junior to Vilven and Kelly will be impacted, but the greatest effect will be to those on the same position. This issue and the impact on the pilot group should be of concern to all pilots and not to just the pilots who may be adversely affected.
We will be reviewing the Decision with our legal counsel and the MEC and will meet with Air Canada on a going forward process. During this process we will take the appropriate steps to ensure your contractual rights are protected.
With reinstatement out of the way the Tribunal was asked to address other remedy issues. The following table compares what the complainants sought as remedy and what the Tribunal ordered. Claims Sought by George Vilven & Kelly
Tribunal Decision
1
Cease and Desist – an Order that Air Canada and ACPA cease applying the mandatory retirement provisions of the Collective Agreement
Denied
2
Reinstatement to employment with Air Canada and may only bid their seniority for FO positions following their 65th birthday
Reinstatement as requested and not opposed by Air Canada
3
Compensation for lost wages from date of retirement to date of reinstatement
a
Vilven – August 31, 2003 to April 30, 2010 - $1,086,093 plus compensation to date of reinstatement
Vilven – September 1, 2009 to March 2010 - $45,897 plus compensation to date of reinstatement
b
Kelly – May 1, 2005 to April 30, 2010 – $1,040,128 plus compensation to date reinstatement
Kelly – September 1, 2009 to March 31, 2010 - $62,711 plus compensation to date reinstatement
4
Damage for pain and suffering $20,000
Denied
5
Damages for willful, reckless, conduct $20,000
Denied