CHRT Remedy Ruling?

[accumulous]

Good letter - clearly what's needed is far more stringent medicals at every level particularly for pilots under 60, and under 40. How many pilots are on medical now under 60, about 140? Anybody have those numbers?

There's certainly no harm in upping the ante for everybody, IMHO. Proactive medical assessments are in everybody's best interest and can only ensure more effective longevity for everybody. Bend over and say ah, wait a minute wrong order, oops....

[Johnny Mapleleaf]

The following parts are worthy of note, in the context of issues here:

As of June 2010, there are over 5 700 medical certificate holders who are older than 65 in Canada, which is close to 10 percent of the pilot population. We have pilots in their seventies, eighties and even nineties flying in Canada.

In Canada, legislation prohibits discrimination on the basis of age alone. This is one of the reasons that Canada has no upper age limit on having a pilot’s licence.

How do we reconcile the observations of science with the legislation that prohibits discrimination on the basis of age alone? Do we have any evidence that older pilots are less safe or have more accidents than younger pilots? The fact is that we do not. This issue has been explored extensively in the U.S. and other jurisdictions and there is no clear trend in accidents or incidents related solely to pilot age.

Of the 5,700 over age 65, obviously only two work for Air Canada. It would be interesting to know how many ATPLs are over age 60, but under age 65.

The thrust of Transport Canada’s concern, it would appear, is recurrent testing for those in the upper ages that are not currently required to undergo recurrent testing. Namely, those other than ones holding instrument ratings. None of that is relevant to our situation.

[accumulous]

The thrust of Transport Canada’s concern, it would appear, is recurrent testing for those in the upper ages that are not currently required to undergo recurrent testing. Namely, those other than ones holding instrument ratings. None of that is relevant to our situation.

Apparently so - the standard Canada wide for transport pilots is the same whether it's WestJet, JAZZ, Transat, or whomever, and it's a TC medical standard across the board, albeit the ante is upped to every 6 months once they crack 40 and then head on into their 60's.

Would anybody object to running medicals on pilots over 60 at intervals of every 5 months or every 4 months?? Or on pilots over 40 every 5 months? Why should it matter? The medical staff is there for one purpose and that's with the idea of maintaining your good health. If you got the opportunity to cough every 4 or 5 months, it's only going to be to your benefit. Be proactive and keep your career going.

Having said all that, there is still sadly a huge number of guys under 60 with restricted medicals or off on medical leave all together.

If ACPA feels it's in the best interest of the pilot group to be proactive in the medical department, there's nothing wrong with ensuring that everybody is on firm footing with regard to fitness.

Once all the complainants are back to work and guys over 60 are no longer electing to retire at 60, which is just around the corner now, perhaps it would be beneficial to appoint yet another committee to work with the medical department in areas of health and fitness. There are lots of guys over 60 running marathons, engaging in lots of health benefit regimes, and maintaining awesome health parameters. Maybe one of those returnees would be interested in contributing to AC Occupational Health. Perhaps an over 60 committee could work with AC Occupational Health to look at beefing up the overall health parameters of the entire pilot group. There's nothing wrong with detecting health areas that can be addressed on a timely basis. Who knows, perhaps even the AC medical department can be convinced to employ more medical staff, in the areas of fitness and holistic medicine, just as an example, that can ultimately pay big dividends to the Corp.

[BLZD1]

Some of us do not want Air Canada's doctors or Transport Canada involved in our medical conditions. I have a great family doctor and if we find anything in contrivance to the CARs we will report it. I do not need to pay 120$ plus 55$ TC fee every 5 months. If they want to do something different with over 60 guys feel free. Do not make the guys under that age suffer as well. I visit my family doctor quite often and do blood test every year. Normal TC medicals work for me just the way they are!!

[accumulous]

Sure - that's all understood - there are a lot of guys who are likely dealing with specialists and would like to keep that going - also one of the benefits of the AC medical system is the connections they have with specialists - a lot of guys have gotten some pretty quick referrals if they need it, and not just for themselves - it's a good resource for other family members too.

[Thirteentennorth]

Dr. Salisbury wrote: "What is the safety message? As pilots, we need to know our abilities and ourselves. We need to know when the time has come to give up the privilege of flying. All doctors, pilots and regulators need to have an ongoing, informed and dispassionate discussion to address this issue and improve the ability to identify those of us, at any age, who can no longer perform at a safe level, for all our sakes.

That is a great benchmark to which all active pilots should aim. But once the adversarial system gets going, and the various quasi-judicial bodies get involved, litigation takes precedence over "an ongoing, informed and dispassionate discussion."

What happens, e.g. when an Age 60+ pilot fails a sim or medical? After the various appeals have run their course, does what is obviously a flight-safety issue then become a human rights issue once more?

It would be interesting to hear the position of the FP60 Coalition on that. Understated?

[accumulous]

What happens, e.g. when an Age 60+ pilot fails a sim or medical? After the various appeals have run their course, does what is obviously a flight-safety issue then become a human rights issue once more?

Of course it's not a human rights issue - it becomes a medical issue - no different than the pile of guys under 60 who fail medicals. A 35 year old guy fails a medical it's a flight safety issue - a 61 year old guy fails a medical it's a flight safety issue. No difference. There's no way on earth you can tell a doctor anything medically related is human rights related. Not even remotely a possibility.

[Rockie]

What happens, e.g. when an Age 60+ pilot fails a sim or medical? After the various appeals have run their course, does what is obviously a flight-safety issue then become a human rights issue once more?

It would be interesting to hear the position of the FP60 Coalition on that. Understated?

You won't find a single FP60 guy who thinks he (or she) should fly past the point where they are no longer medically, cognitively or competently able to do so. That isn't at all what this is about.

This is completely about not forcing someone out when they are able to do the job.

More screening as pilots age? Sure. In fact I for one would insist on it.

[Thirteentennorth]

Thanks Rockie and ACC. Speaking as one who once grounded himself voluntarily, as required by CARS, until the situation got cleared by TC, I sincerely hope that you are absolutely right.
Cheers.
IE

[Doug Moore]

I posted the following comments on another forum sometime in late 2006: Given that age 60 mandatory retirement is such a contentious issue amongst the pilot group; and given that age discrimination (perceived or not) is a "legal" issue as opposed to a "majority rules" issue; and given that 458 ACPA members (approx 25% of those that voted) voted against the MEC's position "supporting the current mandatory age 60 retirement provisions as stated in pilots' pension plans"; and given that ACPA has a duty to fairly represent all of its members; and given that no one wants to see ACPA exposed to any financial liability as a result of the outcome of these proceedings; an interested observer might ask the question: why is ACPA, through its Age 60 Committee, only prepared (it would appear) to represent one side of this controversial issue to the convening authorities?

If ACPA wishes to claim that it truly and fairly represents all of its members then it must be seen to be remaining neutral in what in this case is essentially a "legal" dispute. And in allying itself with the "legal" as opposed to the "majority rules" sentiment, perhaps it might minimize its exposure to financial liability by being able to claim that it has not taken sides. So how does ACPA represent all of its members and at the same time, remain neutral?

I throw this out for discussion: Reconstitute the Age 60 Committee into two committees, one committee pro and the other con - working independently of each other. In any presentations before the convening authorities, the two committees would appear as one, but with equal time given to both sides to present their arguments. We all must understand that this issue will be decided by a third party and I believe we as an Association would present ourselves as a more mature, credible, not to mention professional group if we were to conduct ourselves in a fashion where we acknowledged the division within our group and presented both sides of the argument.

I appreciate that Vilven et al will be presenting their side, but that's not the issue here. The issue is that there is a long standing division of opinion amongst us on mandatory retirement and we, as a unified group of professional pilots, are seeking a resolution to this matter that respects and conforms to the current laws of the land.

End of the 2006 posting.


Well, that rough idea survived about as long as an ice cube dropped into a pot of boiling water – with some suggesting that perhaps it should be the writer and not the ice cube that belonged in the hot water. In my view, this mandatory retirement issue is one that truly represents the Achilles Heel of a “grassroots” organization, in that it has demonstrated that the grassroots are not a power unto themselves.

Our mandatory retirement provisions were put in place over a half-century ago, in a different time when life expectancy was lower than today, when retirement was offered as a reward for long and loyal service, and when flying itself was a much more onerous and gruelling profession. And at a time as well when the term “age discrimination” was simply a part of the social fabric. Remember when AC wouldn’t hire beyond a certain age (28)? Remember when CP assigned course seniority numbers on the basis of age (oldest most senior)? Remember when F/A’s wouldn’t be hired unless they were single? I do. Such exclusionary restrictions gradually went the way of the Dodo bird because people protested and ultimately caused new law to be introduced that enshrines the rights of the individual. The winds of change continue to blow today despite, or more accurately, in spite of those who might wish differently.

I am in agreement with Iain’s point of view on “collective bargaining in a democracy” – to a point. This age-mandated issue has two distinct elements – an age-based element (the human rights issue) and a retirement element (the collective contractual issue). The real “issue” is the conflict between the two. The Collective Agreement (the contractual issue) has its emphasis placed upon the will of the “collective”, i.e., the majority, whereas a human rights issue has its emphasis placed upon the individual. I expect the legal community will determine in the end whether or not, in the matter of mandatory retirement based on age, one trumps the other; the obvious problem for the collective (in my view) being that democracy within a collective is sometimes akin to a vote taken between two wolves and a lamb in the matter of what they’ll have for dinner.

ACPA has failed – and in my view continues to fail - to grasp that age-based retirement is no longer just another working condition to be agreed by a majority vote of the membership and then negotiated with the employer, like wages or DH in Business Class. Forced retirement for some people is akin to constructive dismissal, and this is not just an Air Canada issue, it has been happening in virtually every industry in the country. Because many workers from many industries complain about mandatory retirement, the laws of the land have been changing, and continue to change with respect to forced retirement. The writing has been on the proverbial wall for years and yet ACPA either didn’t see this or worse, felt it was powerful enough to fight it. In any event, the law will determine which rights prevail, the rights of the wolves or the rights of the lamb.

Much has been made of pilots getting to the top of the list by virtue of those ahead of them having already retired at 60. And now, horror of horrors, someone wants to change the rules in order to enjoy the fruits of seniority that has been achieved purely as a result of others retiring before them. This change has been coming for a long time – and it has to happen sometime. I can remember senior pilots fighting mandatory retirement back in the 1980’s – and they lost. Others after them also fought and lost. There has always been someone willing to take up the fight and when mandatory retirement based on age is finally relegated to the history books then yes, the lay of the land will have changed. Just as when we were hired, timing is everything – and none of us has control over timing.

Mandatory retirement, however, has not been the sole determinant of advancement. I do know that pilots quit, pilots get fired, pilots get sick, pilots die and pilots do retire early. In terms of career progression, yes, we all benefited from forced retirement – but progression on the backs of those force-retired doesn’t make it right. When mandatory retirement is expunged pilots will still quit, pilots will still get fired, pilots will still get sick, pilots will still die and pilots will still retire – some earlier, some later, but everybody will be in lock-step on this same, albeit new ladder. When the dust settles, it will not be the end of the world, as we know it.

“Fly until you die.” That’s a nice catchy phrase but hardly reflective, in my view, of the aspirations of the pilots who are fighting mandatory retirement. We have no data from which to predict what will happen but I suspect that the very large majority of those who wish to fly past 60 will do so only until the novelty wears off - and then they will prepare for when they want to retire – and I suspect the overwhelming majority will want to retire as opposed to those who might want to die in the seat. Will there be those who will hang in there until removed due to medical problems, incompetence or death? Yes, there will always be birds of that feather but they will be a rare bird indeed. Instead, think about those who, given the opportunity in the past, have chosen early retirement prior to 60. There have always been, and there always will be guys who want to go early, particularly absent any early retirement penalty. This fly till you die scare tactic is a red herring thrown out in the midst of the hysteria of those who see their career grinding to a halt. Why not concentrate on negotiating an environment amenable both to those who want to leave early as well as to those desirous of going past 60? Win-Win.

I am drawn to this discussion simply due to its debatable nature, as it is a completely academic one for me - I’ve been retired almost 3 years now and I’m not part of the FP60 group. I do, however, support the concept of the abolition of mandatory retirement based on age, as I suspect do many others - well, at least 458 anyway. This is a toxic and divisive issue such that very few are willing to publicly engage out of fear that they will be verbally accosted and/or ostracized. I can’t say as I blame them. We are such a wonderfully dysfunctional group when it comes to seniority and anything that affects it!

It will be interesting to see how many of those who today so vigorously defend retirement at 60 will themselves “walk the talk” when they flip that page in the calendar that says: “Hello 60”.

[Understated]

After the various appeals have run their course, does what is obviously a flight-safety issue then become a human rights issue once more?

Medical competency was never raised as an issue at the Tribunal in either our prior cases and it will never be raised in any of our pending cases, for the simple reason that it isn’t in issue before the Tribunal. Licensing comes under the jurisdiction of Transport Canada. Transport Canada openly states that there should be no age limit on pilot licensing because age discrimination violates the Charter. How could competency ever become a human rights issue when Transport Canada, with exclusive jurisdiction over the standards of licensing, says that age is not an issue?

The issue before the Tribunal is the validity of the contract in the context of the human rights legislation; that is, termination of employment, based on an entirely arbitrary age, for reasons totally unrelated to competency.

Consider the regulator’s description of the pilot age issue, then look at ACPA’s spin on that description, in its recent Age 60 Committee newsletter. This is but another example of inappropriate manipulation of the uninformed. Its statement

"While Transport Canada has not adopted this ICAO first officer recommendation it has stated that ‘ageing pilot issues’ are being raised in its Policy and Regulation branch. Since TC has no upper limit on age for the ATPL, it can be assumed that further restrictions and increased oversight are being considered…"


is a conscious attempt to misrepresent the issue of medical competency to its own members as being relevant to the issue that is before them, when it is in fact irrelevant to that issue. Why? It is an appeal to fallacious reasoning in order to distract its members from the real issue confronting them and from its own inability to overcome the weaknesses in its own position. It needs its own members to continue supporting its biased, illogical, one-sided, futile campaign to prevent any change in the mandatory retirement policy, and putting these irrelevant issues before them is the preferred methodology.

[Understated]

...once the adversarial system gets going, and the various quasi-judicial bodies get involved, litigation takes precedence over "an ongoing, informed and dispassionate discussion."

You won't get any disagreement from us on this point.

[Rockie]

Doug Moore

That was an articulate and extremely well written summary of why we find ourselves in the position we are in. Our pilot group suffers from years of one-sided misinformation and a deliberate witholding of facts from ACPA, which has abandoned their lawful duty as a certified union in favour of personal preference.

Had the union remained neutral and constituted two committees as you suggested in 2006, one to explore keeping age 60 and one to explore eliminating mandatory retirement with both presenting to the membership their findings, we would not be in the deep quagmire we find ourselves in today.

[MackTheKnife]

ACPA stills fails to understand a very basic philosophy

"If you find yourself in a hole, STOP DIGGING "

The downright stupidity and arrogance on the unions part will be responsible for years of irreparable damage to an already fractured group.

And they wonder why it gets darker and darker…

[Thirteentennorth]

Of course it's not a human rights issue - it becomes a medical issue - ... There's no way on earth you can tell a doctor anything medically related is human rights related. Not even remotely a possibility.

In principle ACC, I fully agree. But I think that in this litigious age in which we live, everything has the potential to be confrontational. As a former instructor, I can't tell you how many times I've seen a simple competency issue [although that itself is an oversimplification] degenerate into medical excuses, social excuses [the dog ate my homework], personal excuses [my wife burnt the dinner]. It is human nature that people are reluctant to take ownership of their shortcomings, so I think that to say "...Not even remotely a possibility" is, in real-world terms, problematic and naive.

Regards,

IE.

[Raymond Hall]

In March, 2006, a YVR-based Captain requested ACPA to file a grievance on his behalf with respect to his impending mandatory retirement. The YVR ACPA Grievance Committee Chair consequently wrote a letter to senior Flight Operations management at Air Canada advising of the grievance. The Captain was provided with a copy of that letter. It included the following paragraph:

"This grievance seeks an interpretation as to whether mandatory retirement at age 60 violates the ACPA Collective Agreement and/or the Canadian Human Rights Act. ACPA is currently investigating this issue. Depending on the outcome of its investigation, ACPA may take a position that differs from the position of Captain XXXXXXXXX. If that turns out to be the case, ACPA will arrange independent counsel to represent him at arbitration."

[Thirteentennorth]

Doug, welcome back! The voice of reason, dispassionate discourse and common sense. Good to have you join the debate.

Hope that retirement is excellent, and that the "hawg" is getting lots of exercise!

Happy New Year!

Iain E.

[Rockie]

The first thing that will have to go is "train to standard". The medical people, and training and checking departments are going to have to do their jobs, and hard decisions will inevitably have to be made and complied with. Along with that of course is the need for a strong union that will protect pilots from unfair and unnecessary decisions against them, yet recognize when it really is time for someone to leave the seat.

It's clear ACPA is not the organization we should trust to do that. They have thoroughly demonstrated their preference to throw anybody over 60 under the bus regardless of their medical fitness or competency.

[vic777]

The first thing that will have to go is "train to standard".

Of course "bargaining capital" will have to be spent to eliminate "train to standard". Does ACPA realize who's bargaining capital must be spent in this instance ? What will ACPA demand, to give up, "train to standard"?

[morefun]

It's clear ACPA is not the organization we should trust to do that. They have thoroughly demonstrated their preference to throw anybody over 60 under the bus regardless of their medical fitness or competency.

ACPA isn't that picky, they've thrown junior guys under the same bus....at least they're not discriminatory