The basings fiasco
 

Rumour has it that the basing fiasco is now so out of hand, that it has been elevated from the children in the basings office to one of the adults at Swire to fix it up. Anyone heard anything about this one?

You are essentially on the right track

Next basings anomaly will be when the first crew achieve the grand old age of 65 but don't want to leave - in UK for sure.

While the case of crew is somewhat influenced by the various regulatory authorities I grant you there may be some sucking of teeth somewhere on this one with thoughts of 'oh no not another court case'.

When do your first 'baby-boomer' crews come up to this cut-off?

I've heard the same - They've called in Swire to deal with the aftermath of what has happened.

I also heard (from D.L. Manager of the Basings Office) that in the case of the Canadians that are in the U.S. - the Company had hired a team of attorneys to file for A work visa for ONE Canadian, just to see what the U.S. Immigration would do. If they were successful, then the team would use the same process for the rest of the Canadians.

Well, someone apparently 'didn't do their homework' - the Canadian that agreed to be the 'guinea pig' was a holder of a 'Green Card'. Consequently, he was denied the work visa (which makes sense).

D.L. thinks 'they' have one more chance at this (all of course at somebody's expense, as I would think that the attorney team is not taking this on a pro bono basis). :rolleyes:

One thing that the managers failed to realise (regardless the country of the Base) is that, contrary to their belief that it is the responsibility of the crew member to ensure that he/she takes care of their own affairs when it comes to work status and taxes, it is also the responsibility of the Company as a Corporation to ensure that they abide by the work laws of that country. They simply cannot just 'pass the buck' to the employee and claim "Well we told him".

After writing my senators and representatives in the US Congress about this, as well as the INS; I doubt any Canadians working for CX will be getting work Visa's. just my .02.

Brace, brace!

I don't think they need 'em

Canadians can be in the us 183 days in a row, leave and restart. Flying a Cx plane registered in HK shouldn't qualify you for US tax. No US jobs are lost. Nuff said.

....hmm....'nuff said'....Rook....really? There is a big difference between an airline positioning crew to operate aircraft, and having those same crew 'based' in a US port, operating OUT of that port and back TO that port at the end of duty. The INS and IRS in the USA will i'm sure be more interested in the issue than you purport. Just as an American can not be based in Vancouver, neither should an Canuck be allowed to be 'based' in the US. I know it may not be what you want to hear, but how do you justify blocking dozens of base slots from legit Americans who want them? And why would you think that those same Americans might eventually feel they need to make an issue of it with their local congressmen or senators? Eventually CX will have to resolve this, but they will probably mess it up in their usual short-shrift way.

AA are based in LHR on the 777:}

FEDEX have a base in Hong Kong. Evil yanks stealing HK'ers' jobs.

The American Direct Entry First Officers on a Toronto base (that’s in Canada by the way).

And the American Freighter Captains and COS08 DEFO's in YVR. As far as FO's concerned there is now equal or more Americans in Canada then Canadians in the US. None of the Americans have work permits which they actually need as they work for an onshored entity of CX.
Funny, haven't heard any Canadian's bitching and writing their MP's or tipping off immigration ......

I was under the impression that the Americans on Canadian bases were going to be shipped out, no? Because they "got no papers', they were going to have to leave. Is this wrong?

box

Rook,

Quote, "No US jobs are lost."

Except for the approximately 80 or so Captains based in the US, flown by Canadian citizens preventing American citizen pilots from those positions, you are correct.

Ultimately this company has screwed itself up completely by not requiring proof of residence all along. I'm sure the Canucks wish they could be based in Canada and I'm sure the Yanks based up North could be based in the US. Just for simplicity sake.

What Cathay really needs to do, to let the status quo remain is see what the NHL does. That is a business that has Canadians 'working' in the US and Americans 'working' in Canada. How do they do it?

Working temporarily in Canada: Jobs that do not require a work permit



This link makes it very clear that pilots operating foreign registered aircraft in and out of Canada DO NOT need work vias. I am pretty confidant that The same is true for the US as well. I'm going to do some more diggin but DL needs to see this.

Canada Immigration and Refugee Protection Regulations (IRPR)

Division 3

Work Without a Permit

No permit required

186. A foreign national may work in Canada without a work permit

(s) as a member of a crew who is employed by a foreign company aboard a means of transportation that

(i) is foreign-owned and not registered in Canada, and

(ii) is engaged primarily in international transportation;



As CX Canada is onshored and deemed a Canadian Employer for immigration and employment purposes the above does not apply, as one of the conditions clearly states that the crew member has to be employed by a "foreign company".

I'm with INDPEN on this one. The text below with my highlighting(from the link above):

Crew members
Foreign crew members, such as truck drivers, bus drivers, shipping and airline personnel, do not need work permits when:

• they are working on vehicles of foreign ownership and registry that are engaged primarily in the international transport of cargo and passengers,
• their work is related to the operation of the vehicles or the provision of services to passengers.

My interpretation is the fact that the vehicles (planes) are owned and registered by the foreign company is what counts - not the fact that the person is onshored.

Yes, a very simplistic way of looking at it perhaps? At the very least, it should open up temporary basings to those who are not ordinarily able to reside in Canada. Is the company still giving people grief on that one?

As GTC58 has said, with the onshoring I believe that Canadian based pilots are now deemed to work for a Canadian company, so the employees are no longer foreign nationals.

box

Nice to see a link to some source data instead of conjecture (which we don't see often in this forum, source data I mean).

Regarding the requirement for work visas, and "who do Canadian based pilots actually work for", the AOA Canada newsletter update of 2 Jan 2011 provides info.

So a Mexican can be based in LAX? A Lithuanian can be based in yyz?

As has been said, Swire has taken this mess out of CX’s and the basings office hands. A little birdie has informed me that Swire has already unofficially tested the waters with the US authorities and the response wasn’t what they were wanting to hear.

Even though CX Canada is a HKG entity, the Canadian authorities rejected CX's application for foreign employer status. Hence the decision that CX has to pay the employer portion of the Canada Pension Plan and Employment Insurance contributions. Also the CRA, in one of their latest communications, clearly states that CX Canada is considered a Canadian employer. However, the HKIRD has a different opinion in terms of taxes.
As such and as far as I know all Canadian laws and regulations apply to CX Canada and it's employees (the pilots) equally as to any other Canadian employer. The fact that CX Canada was setup as a HKG entity does not make it a foreign employer.

USAB
 

The obvious answer is read the law.
USAB does not even qualify as a US base. It is a hong kong company, the crews are employed and paid in hong kong just as they were before they left for either canada or the usa 'base'.
The 'resident for tax purposes' in the USA is defined as 183 days in country ..counting all the current calendar year,1/3 of the previous year and 1/6 of the year before that..add it up and no matter what visa one holds ..if you bust 183 you are tax resident....EXCEPT
the days spent in the USA having entered on a crewmans landing permit(C1/D visa) count for ZERO when accumulating aforementioned days.
The permit allows 29 days on EACH entry.
So green card or not...any foreigner entering as an international flag carrier crewmember is exempt from tax.
CX can call a base anything they want..the FACT is the 'base' is not legally qualified...i.e one may as well be working for cx in hong kong as essentially the same conditions apply.The fact you start and end a flight cycle in the USA is irrelevent and no current law covers it.
Additionally they've ballsed up witholding tax for USAB...
Currently tax is witheld for 'flying in usa airspace' but to invoke this rule more than 50% of total wages must be derived in the USA.
So ...my advice to all concerned..simply read the law.:ugh:

Word on the street is that CX are currently doing a feasibility study to determine if it's more economical to close the Oz base as opposed to keeping it open.

The ATO most probably want CX to pay many years of back-dated payroll tax for crew based in Australia, when CX didn't declare them.

This would explain why there are very few Oz bases available in the current pool.

This on-shoring is beginning to bite.

Only time will tell....

And thus it has always been - do it until you get caught. In risk management terms, way, way in front when it comes to any like for like penalty vs gain equation.:*

but then it doesn't explain why there are any at all.

Giuseppe Giovanni

What a load of sh*t. As an account in my previous life closing the OZ bases doesn’t absolve CX from its tax liabilities and penalties to the ATO for past omissions and indiscretions. The cost to CX will be exactly the same either way.

GTC 58 has hit the nail on the head, not only in respect of Canada but also Europe. There never was a need to onshore. The original basings system, where you operated in and out of your preferred port was within the law and onshoring dropped an unecessary can of worms into the lap of a badly advised CX management.

I hope Swire understand this better than CX FOPS did when they set up the whole mess.

HKIRD do not recognise CX basing companies and will be sniffing around for the tax that they should rightfully have been paid before onshoring took place.

Got a GrpWise this week invitibg applications for Aussie base. Does right hand know what left is doing?

"Invitibg" should be "inviting". Clearly my fingers are easily confused never mind right and left hands.

I think basings are open for application but there is next to nothing available...

With this interpretation, any foreign national can legally take a US base. Try explaining that to the immigration officer:E.

I dont think the crew member entering on the crew C1/D visa needs to explain anything. The Visa is self explanatory.
Visas are good - save you having to justify your entry to poorly educated, low paid, barely english speaking protectors of the border that they themselves infiltrated a few years earlier. Apologies to the few fluent intelligent ones.

It should more likely be a case of the company having to explain why it has not been doing things correctly. One may wish to question the validity of the high price advice the Company received, that appears to have been either woefully incorrect or interpreted and applied wrongly.
I think you may find Blunderbus knows a lot more than he is cracking on, I believe he's acutely aware of the legislation with regard to how it applies to non-US citizens.

Jriv.

Any foreign national can operate into the US and stay there for 29 days on his crew visa. If he is flying a foreign registered aircraft on a Hong Kong AOC he is based in Hong Kong. If the company gives him 28 days R and R in the US that does not constitute a basing. We got into this mess because we called the places of R and R 'bases' and then we compounded the problem by pretending that we could onshore a foreign entity involved in international travel.

CX should return to the position pre-2008. What they were doing was perfectly legal, although their expensive advisers seemed not to understand the legislation and gave appllingly bad advise. I would like to volunteer my services to CX as an adviser with a roaming brief. I would charge half the money and my advice would be no worse than that of their current internationally recognised advisers. CX should sue K....G for this mess.

Unfortunately, there's more to this can of worms than simply what the US federal law says. In the US, each state has it's own set of laws about a lot of things. Employment and taxes are a couple of them to say the least. Years ago an airline I used to work for got caught by the state of California for not providing state mandated overtime pay (higher than federal requirements), making employees pay for half their uniform costs (to be fully paid for by employer in CA). The company's lawyers (high paid large Texas law firm) argued that since the company is/was Texas based, it shouldn't have to comply with California law in those regards and that since the paychecks are issued in Texas, all those employees are subject to Texas labor laws, not California's. Well they lost in court to state of California’s labor board and paid over $250,000 USD in overtime back pay alone. The Judge's ruling went as far as saying that even if they were a foreign company, as long as they based even a single employee in the state of CA, they had to comply with CA’s labor laws for at least that one employee.

It’s amazing how they insist on running this airline as if it’s the same small less than 500 pilots popsicle stand outfit it once was, in this and many other ways. Currently, this popsicle stand is under the radar of the states in the US. They don’t even understand the federal law which is simple in comparison. They don’t understand what “basing” means under legal terms. You can’t say someone is based at XXX but they’re not a “resident” of that place. Good luck banging your head against the wall, but the law is what it is. Nobody gives a damn what your definition of it is. Once you call it basing, good luck trying to say you really mean something else, even if you really do. So why even call it that in the first place? All of this could’ve been prevented by either first getting the approval of the corporate legal department (which from the looks of things, we don’t have one) or do what the corporate legal department would’ve done if one existed, …HIRE AN IN COUNTRY LEGAL FIRM IN EACH COUNTRY! Which is the only way to get advice worth a crap when you’re such a large international company. Run this place like it’s a 21st century international airline, not like a 19th century colonial possession. Which happens to be the corporate culture mentality in all things around here.

If you recall, a few of the 49ers were "based" in LAX at the time of of their dismissal. I could be wrong, but I believe one even had the legal right to reside in the US. A lawsuit was filed in CA against CX or USAB for wrongful termination using some high profile attorneys. The case went nowhere because the judge concluded that the state of CA had no jurisdiction over the matter.

Hmm, that's interesting. Of course what I was referring to isn't an actual ruling. Just what the judge said in his ruling statement.

Big Mach,

If you're right, why don't any of Cathay's European pilots take a base in beautiful Southern California?