Air Canada Age 60 Limit To End

[Raymond767]

Originally Posted by ea340

so why did you not find a guy to bring a case in say 1988or 1995.

A few pilots attempted to do so then. None were successful. One took the appeal of the refusal of the Commission to refer his case to the Tribunal to the Supreme Court of Canada; he lost. Why? Two reasons, both based on the legislation.

First, the substantive portion of the legislative exemption, namely Section 15(1)(c) of the Canadian Human Rights Act. That allows for mandatory retirement provided that it is done at “the normal age of retirement for individuals doing similar work.” In the 1980’s, age 60 was the normal age of retirement. So no cases were referred to the Tribunal—they all failed on the merits at the administrative stage. So there was no point in me or anyone else complaining—the Commission simply would not accept the complaints.

Of course, that all changed after 2000, with the normal age in the industry moving off age 60. Hence, the Commission allowed the complaints, and referred them to the Tribunal for adjudication.

In the Thwaites case (hearing completed in January, 2010, decision not yet rendered) we presented substantive evidence that Air Canada pilots account for less than 40% of the pilots in the industry, hence the normal age of retirement (50% plus 1) is no longer age 60. Air Canada’s mandatory retirement, we suggest, no longer meets the statutory requirements.

Second, the interpretations of the Charter re the mandatory retirement exemption, have been changing. With the changing demographics, with changing public policy with respect to mandatory retirement, with the improvement in health and fitness, combined with the job shortages at the intake stage of the labour market, the factors that the Supreme Court of Canada considered in their seminal cases in the early 1990’s are being re-evaluated by the Courts.

The Federal Court, in its review of the original Vilven-Kelly decision, had trouble with the idea that the statute permitted discrimination provided that the discrimination is applied to everybody. The judge suggested that the remedy to that statutory interpretation problem lies in the Charter, specifically Section 1, and she struck down the provision under Section 15(1) (the equality provisions) as being contrary to the Charter.

Regarding bringing the matter up at CALPA or ACPA, we already know the result of that option. Other pilot unions facing the same issue decided to remain neutral, or even to finance both sides of the dispute. Not so ACPA. It chose to use the dues of those opposed to mandatory retirement to pay for the legal fight against themselves. How could a union, taking such a position, treat the minority fairly, in view of the outright conflict of interest that it put it self in?

Does that make the violation of the law any less a violation?

So your point then goes again to the issue of fairness, which is separate from the reality that you are facing—namely the reality that you are supporting a union position that is attempting solve the solution by denial and obfuscation.
Last night I observed the PBS interview of Bill Clinton. Some of his words hit home on our issue.

He said the following:

“Change is totally disorienting to people if it threatens their employment, their social status, or their sense of political empowerment. … You can scream, “Stop the world, I want to get off,” and look for ways to make it simple again. .. What I think we have to do is get back in the future business, and I don’t think there is any option cause I don’t think you can get off the world. Denial is not a strategy. It never works—ever!”

[555orange]

My personal opinion here, but I think you guys are wasting your money fighting this as discrimination. What makes this any different than limiting a drivers or pilot to have a license at 18, or an ability to attend a bar at 21? I could drive a car just fine at 16 just like you argue you can continue to fly past 60.

Im not saying its good or bad to go either way. Im just calling it as I see it. Each case has its own merits... retire 60, or 65. But I don't see much of a benefit for 65 where a good pension is involved. It really looks more like a case of not being able to let go. Making the transition to retirement is tough for some that really embrace their work, and perhaps love flying as much as I do. I can understand it, but it doesn't mean its a legal right or a discrimination. Its just the way it is, insofar to manage a group of employees. A general retirement that must be applied fairly to everyone. Maybe we can change it, but we have to look at how we can do it and minimize the negative affect on other demographics. Perhaps we should look at other factors. How it affects the finances of the company or how it might reduce the opportunities for young hopefulls wanting to join. Maybe its possible, but just not practical for everyone. If it benefits a smaller group to a lesser extent, then maybe its not the right thing to do.

[Tan]

Hmm why does our pilots association waste our valuable resources fighting battles we cannot win? We have quite a long track record of doing so. I remember one of our VP’s saying 'a good contract is one in which no one is happy'. Let’s get all the parties together and compromise. Probably half of the pilots that wish to continue only do so because they don’t like being told they have to retire. After a few years they happily retire on their own terms. Those that try to go full term only enrich the pension plan with their premature deaths in which case we all benefit. So it a rest and move on, its going to happen regardless of the venting on this forum.

[ea340]

Ray 767 when you win the case will the Fly Past 60 group support forcing Air Canada to include all retired pilots not just this narrow group in a return to work order. I guess what I'am saying is forget the legal answer will this group continue the fight to allow any retired Air Canada pilot the right to return to work and would you lead the fight. My problem with this whole exercise is the top of the hill syndrome if some want back all should be allowed back . You are aware no doubt of several sim instructors some in their 70's who could return to work with just line indoc. As for other pilots making attemps to stay past 60 is it a fair statement to say they had little or no support and fought the battle alone.

[Raymond767]

Originally Posted by ea340

[W]hen you win the case will the Fly Past 60 group support forcing Air Canada to include all retired pilots not just this narrow group in a return to work order [?]

These misconceptions are part of the problem with having no few effective means to communicate among ourselves. Thankfully, for the most part, the conversation here on this Forum is candid and open, so that misconceptions like that can be laid to rest.

Fact 1: Those who haven’t asserted or protected their rights under the statute by filing a Complaint within the one-year limit allowed by the Act have no recourse to regain their employment as a result of any alleged violation of their rights.

Fact 2: There is nothing in the actions of our group that supports any proposition that anyone should be forced to be employed beyond age 60. We have asserted only that it is improper, under the Act, to involuntarily terminate the employment of pilots on the basis of age. It should be a matter of choice for the pilots, whether they wish to stay employed or accept their pension and terminate their employment.

Fact 3: We have supported the Commission’s request for an Order requiring Air Canada to cease and desist from involuntarily terminating the employment of pilots, based on age. That is one of the issues that will be decided by Tribunal in its decision that is expected to be rendered on or before June 1st. If the Order is granted, Air Canada will be required to inquire of each individual, prior to termination, whether he or she plans to terminate his or her employment at that age, or continue working.

Originally Posted by ea340

As for other pilots making attempts to stay past 60 is it a fair statement to say they had little or no support and fought the battle alone [?]

This has been a David vs. Goliath battle from the outset. Air Canada must have spent over $1 million on legal fees, plus a huge additional amount of money on internal expenses to cover the hidden costs of its managers supporting the unwinnable case (their internal lawyers (on salary, not fees) and their senior managers (on salary) were constantly tied up in the hearings; their senior flight ops managers had to act as witnesses and provide technical support to their legal staff).

ACPA’s legal fees on this issue are in the hundreds of thousands of dollars. Again, those fees do not include the hidden internal costs of supporting the action. For example, ACPA has had one of its labour relations staff attend each of the hearings (salary) and has had to spend countless hours internally for its Committee members and the MEC to deal with the litigation.

On the Complainants’ part, how could one pilot be expected to fight this ground-changing battle alone? Notwithstanding the propositions of some external writers (such as Ezra Levant) that the burden of fighting an human rights case before the Tribunal largely lies on the Respondents, not the Complainants, the fact is that no pilot on a pension the size of G.V.’s pension (nowhere close to the maximum) could have single-handedly afforded to finance this litigation against these titans.

[engfireleft]

My personal opinion here, but I think you guys are wasting your money fighting this as discrimination.

555orange

Please don't take this as an insult because it's not meant to be, but based on a previous post your understanding of the hierarchy of law vs. labour contracts is wanting and I would encourage you to read this entire thread again to see how things lie. Also, forcing Air Canada pilots to retire at age 60 has already been ruled discriminatory last August by the Canadian Human Rights Tribunal. So no, it's not a waste of time or money. What is a waste of time, money and pilot solidarity is continuing a divisive fight that was lost 9 months ago.

[ea340]

Ray 767 forget the legal answer will the Fly Past 60 group support the return of already retired pilots in any meaningful way your short answer appears to be no . As for the folks who fought this battle before you will you agree no one supported them including any of the the Fly Past 60 group is that correct. . If the Fly Past 60 group does decide to support the all ready retired group I will take my hat off to the group .

[Raymond767]

EA340: You obviously haven't digested my previous posts. In a nutshell, why should I or anyone else waste valuable time or resources taking on a cause that has absolutely zero chance of succeeding, given that the action is now statute-barred by reason of timeliness?

What I have been suggesting here is that people should deal with facts, not with fantasy or with what is not an option.

Similarly, despite the tendency to overlay the issues with all sorts of irrelevant emotional distractions, such as anyone's purported motivation, we need to address the one issue that is before us, namely integrating the necessary changes into our workplace.

[Vic777]

ea340
It strikes me also, that you don't seem to comprehend Ray's very clear simple answer to your question. The FlyPast60 group has chosen a specific fight, who cares what you think the terms of engagement should be?

[1049]

Ok- rant switch- ON
I personally do not have a problem with those who want to work past 60. I plan on retiring at 60 and enjoying the fruits of my labor. I get miffed though when people attempt to change the rules mid-game and think they can tell ME I now have to work past 60 in order to recieve a pension.
If those who are challenging the very the age 60 contract that gave them many years of personal gain in pay and equipment are ok with "grand-fathering" the age of retirement changes to become effective when AC starts hiring again then I applaud them - anything else just seems to reek of greed.
Rant switch - OFF

[Lost in Saigon]

Here is my rant....

When I "signed on" we were paid for training and got full credit for deadhead. Things change as I am sure you know.

One thing that won't change is your right to retire at age 60. No one is trying to change that. They just want the choice to work past 60 if they want to.

You might argue that if your career is temporarily stagnated you will be forced to work past 60 to make up the difference. Well guess what... Everyone's career is being stagnated by all the cuts YOU voted in. Oh yeah tell me again how it wasn't you who voted YES to all those concessions. It was always the other guy who gave away our contract and our profession.

I welcome the right to chose when I retire. It's looking more, and more, like we will all need a few extra years.

[engfireleft]

I get miffed though when people attempt to change the rules mid-game and think they can tell ME I now have to work past 60 in order to recieve a pension.

Well, since no one is trying to tell YOU that you now have to work past 60 to recieve a pension...what are you getting miffed at?

This is what happens when the union doesn't explain things to the membership, and the membership doesn't bother to learn it themselves before flying off the handle.

[1049]

The law in this country has changed. Air Canada pilots think it doesn't apply to them and that our collective agreement supercedes Canadian law. They are dead wrong.

Left Eng - you're not talking about the same agreement you benefited from all these years from are you?

Well guess what... Everyone's career is being stagnated by all the cuts YOU voted in. Oh yeah tell me again how it wasn't you who voted YES to all those concessions. It was always the other guy who gave away our contract and our profession.

L in S - You have no idea how I voted. I am not anymore impressed with the degradation of our profession than you are. I agree that when the next round of negots begin we need to take a firmer stance and regain some of those items lost such as full credit DHs and training for example.
I digress slightly, what is important to me is that when I choose to retire at 60 (feel free to retire at 70 or even 80 if you like!) any annuity I would be entitled to will not degraded as a result of the fallout from the tribunal/appeals court decisions.

[a330pilotcanada]

Good Morning from wet and dreary CDG

There seems be a under current that if the age 60 plus goes through, is one that in the next contract pensions will be addressed in a prejudicial manner to reflect growing anger with career stagnation by junior pilots affected by same.

Some how the quote attributed to the Duke of Welligton after the Battle of Waterloo seems relevent " there is nothing as sad as battle field lost as a battle field won".

It would seem that Ray 767 is not concentrating on the next round and has acquired target lock on present battle. So that being said Ray 767 do not wish to hard for something as you just might get it.

In the writers humble opinion yes fight for the change but make it for the next up lift of new hires at Air Canada to decide if they want to go past 60 to make your argument be other than intellectually dishonest and morally bankrupt

Back to the cafe au lait...........

[engfireleft]

Left Eng - you're not talking about the same agreement you benefited from all these years from are you?

Do you mean the contract in constant retrenchment featuring throwing 320 pilots under the bus and the creation of second class Air Canada pilots with the Pay Group? Do you mean that one? Then yes, I guess that's what I'm talking about.

Contracts change all the time and NO ONE at Air Canada can take the high road with this "you knew what you were signing on for" rubbish, which has absolutely nothing to do with the issue anyway. You do know that Canadian Law supercedes our contract don't you? You do know that this is not an Air Canada issue don't you?

Mandatory retirement based on age alone is discriminatory in this country. Wrap your minds around that. It isn't discriminatory for some people, it's discriminatory for ALL people. That means it stops...full stop. Our anachronistic 60's mindset has been living on borrowed time at Air Canada and this is way overdue.

what is important to me is that when I choose to retire at 60 (feel free to retire at 70 or even 80 if you like!) any annuity I would be entitled to will not degraded as a result of the fallout from the tribunal/appeals court decisions.

The flypast60 group is in complete agreement with you, and Ray and others have been trying for the entire time to get the union to manage this change to ensure minimal negative effect rather than put all their effort into fighting it. Now of course the union has lost, and done nothing to minimize the fallout.

The union did this of course with the blessing of a large segment of the membership who refused to consider any other option. Ask the union (and yourself) why nobody was preparing for this day?

[O360A1A]

History

Lots of comment about past history on this issue; much of it appears uninformed.

At one time, Canada had a limit of 45 on flying "for hire and reward" (and no women permitted)

Pilots retiring from Air Canada in the early 70's told me they had been hired under that age 45 limit; but they flew on when the rules changed, and no-one expected them to go at the age in force when they joined.

Pilots hired when no-one could fly with various medical conditions such as monocular vision, diabetes, heart problems etc, did not leave when they got those conditions, despite the rules in place when they were hired.

There was no mention of 60 in the Contract at AC till the mid eighties; the union of the day opposed fixed retirement. 60 was slipped into the contract in response to Ross Stephenson fighting 60. 60 was not "negotiated", nothing was gained for it, and those hired prior to its appearance in the contract cannot be said to "have agreed to it when they were hired".

Various pilots did speak out about mandatory retirement prior to approaching 60. They (myself included) were discounted as "not understanding" the system. Same results as when they questioned other things like no women. Some have been consistent in questioning this issue throughout their careers. Ross Stephenson had supporters; some of whom now deny that support.

As one of the posters above points out; there are many who have supported this change, but they are shouted down if they speak out, and ACPA has lost an opportunity to manage the change to the benefit of its members.

One benefit advocated was to use pension savings from those working past 60 to allow others to go early with less or no penalty. ACPA's own committees reported to the MEC that an age change from 60 was "neutral to positive", but the MEC decided to fight rather than manage the change; further, ACPA did not educate the members before calling a vote on the issue.

ICAO looked at the numbers before changing its age recommendations. Older pilots are safer, and less likely to have a disabling medical event. Medical events causing incapacitation typically occur earlier than 60 or much later than 65; peak period for males is in the forties. ICAO recommended the change to 65, because they looked up to that age. 65 is not cast in stone, nor is the "over/under" rule. Canada has no age limit on pilots; the "over/under" rule does not apply in Canada or the U.S. Other Canadian carriers do not have Age 60 retirement; nor do they have any problem with the "over/under" rule.

Another misconception is that persons retiring early live longer. Large studies show otherwise. There is bogus information on the net about Boeing employees; that fabrication showed persons working to 65 dying at 65.2 years! Boeing itself countered with the actual numbers about its retirees. Those retiring at 55 die earlier than those who retire at 60 or 65. There is no significant difference in death rate for retirees or those who work beyond60. Shell published a similar study with similar findings.

The Tribunal and the courts will decide this issue; the decisions may not be popular with some, but the results will be real. It is generally better to manage change than to fight it; that opportunity appears to have been lost here.

[MackTheKnife]

0360A1A,

Please for the love of God put your post up on the ACPA forum for all to read.

MTK

[cloudcity]

It's likely not a good idea to post anything over there.

[Raymond767]

Lest anyone think that this issue affects only the pilots at Air Canada, think again. The CHRT has a number of complaints scheduled for hearings on the mandatory retirement issue, not just with Air Canada.

The first new hearing is a Tribunal hearing scheduled in June in Montreal with a different Air Canada union:

CHRT - Hearings Schedule

In addition, there is a backlog of other cases before the Tribunal on the same issue, with respect to the trucking industry.

Essentially, all the mandatory retirement cases deal with the same issue already decided by the Tribunal in the Vilven-Kelly liability hearing, namely, can the employer rely on Section 15(1)(c) of the CHRA to involuntarily terminate the employment of all persons in a particular work category?

[bcflyer]

There has been alot of talk in this thread about mandatory retirement now being illegal in Canada. As far as I know the laws have only been changed on a Provincial level. Please correct me if I'm wrong but I believe Air Canada falls under federal law and I'm pretty sure that mandatory retirement is still legal at that level. (is there not a mandatory retirement age for Supreme Court judges for example?)