Can the illegal acts still be condoned?

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vic777
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Can the illegal acts still be condoned?

Post by vic777 »

When the contract is under negotiations we still adhere to the terms of the previous contract. But what when the expired contract is declared illegal? Can AC still force retire Pilots at Sixty now that it is illegal? Can they hide behind the old expired way of doing things until the new contract is signed? Or must AC permit over Sixty Pilots to keep flying effective immediately? We have no "current" contract, can AC use this fact to break the law? AC has gotten the Federal Government into the negotiations, will the Federal Government let AC break the law regarding FlyPastSixty? Does ACPA have any idea what AC and the Government are deciding on this matter?

Is ACPA completely shut out of negotiations?

Maybe as a bargaining ploy and to get back into the game ACPA should insist that over age Sixty Pilots are brought back immediately.

In fact, can any of the ACPA negotiators fathom the effect it would have on AC if ACPA said, "We must follow the law, bring those Pilots back"? Talk about taking control of negotiations!
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cdnpilot77
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Re: Can the illegal acts still be condoned?

Post by cdnpilot77 »

vic777 wrote:When the contract is under negotiations we still adhere to the terms of the previous contract. But what when the expired contract is declared illegal? Can AC still force retire Pilots at Sixty now that it is illegal? Can they hide behind the old expired way of doing things until the new contract is signed? Or must AC permit over Sixty Pilots to keep flying effective immediately? We have no "current" contract, can AC use this fact to break the law? AC has gotten the Federal Government into the negotiations, will the Federal Government let AC break the law regarding FlyPastSixty? Does ACPA have any idea what AC and the Government are deciding on this matter?

Is ACPA completely shut out of negotiations?

Maybe as a bargaining ploy and to get back into the game ACPA should insist that over age Sixty Pilots are brought back immediately.

In fact, can any of the ACPA negotiators fathom the effect it would have on AC if ACPA said, "We must follow the law, bring those Pilots back"? Talk about taking control of negotiations!
Isnt it legal until December 2012? Didnt we we all read that it doesnt come into effect until 1 year from the date of enactment?
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vic777
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Re: Can the illegal acts still be condoned?

Post by vic777 »

cdnpilot77 wrote: Isnt it legal until December 2012? Didnt we we all read that it doesnt come into effect until 1 year from the date of enactment?
The next ACPA dues paying FlyPast60 Pilot to turn Sixty will ask ACPA to help him keep his job. The ball is in the ACPA court. The Government is watching. There is no harm to ACPA or the Company to allow this Pilot to keep his job. Settlement awards hang in the balance. There is no contract. Time for ACPA to be pro active and possibly dig themselves out of the hole they dug. Last chance for ACPA to try and get control of the situation and maybe start putting out the fire.
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Norwegianwood
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Re: Can the illegal acts still be condoned?

Post by Norwegianwood »

vic777 wrote:
cdnpilot77 wrote: Isnt it legal until December 2012? Didnt we we all read that it doesnt come into effect until 1 year from the date of enactment?
The next ACPA dues paying FlyPast60 Pilot to turn Sixty will ask ACPA to help him keep his job. The ball is in the ACPA court. The Government is watching. There is no harm to ACPA or the Company to allow this Pilot to keep his job. Settlement awards hang in the balance. There is no contract. Time for ACPA to be pro active and possibly dig themselves out of the hole they dug. Last chance for ACPA to try and get control of the situation and maybe start putting out the fire.
I'm not going to hold my breath, are you???
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Raymond Hall
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Re: Can the illegal acts still be condoned?

Post by Raymond Hall »

vic777 wrote:When the contract is under negotiations we still adhere to the terms of the previous contract. But what when the expired contract is declared illegal?
Here are some facts combined with a little discussion of law combined with some personal opinion (which is not legal opinion). I trust that these comments may add some perspective to this discussion. As I see it:

1. The repeal of the mandatory retirement exemption provision in the CHRA (Paragraph 15(1)(c)) does not come into force until December 15, 2012. Until then, the provision is still part of the statute law of Canada, notwithstanding the finding by the Federal Court that the provision is in violation of the Canadian Charter of Rights and Freedoms.

2. The Canada Labour Code provides that when a collective agreement “expires,” it doesn’t really expire; rather it continues until the union is in a legal strike process, which occurs only after a series of processes culminating in the serving of a 72-hour strike notice. So the present collective agreement is still valid and subsisting at the present time, notwithstanding the fact that it has “expired.”

3. There has been no “declaration” that the collective agreement or any portion of it is illegal. Rather, the CHRT found the mandatory retirement provision of the collective agreement to be of “no force and effect” in respect of two pilots, Vilven and Kelly, who were before the Tribunal in 2007. Tribunal decisions are not binding precedent either on other Tribunals or on the same Tribunal in subsequent cases;

4. The CHRT, in its V-K remedy decision in November, 2010 stated that the prior Tribunal decision in respect of the validity of the mandatory retirement provision applied only to V-K, and was not a precedent for others. It also said that Paragraph 15(1)(c) of the CHRA was still available for others to use.

5. Federal Court decision 2011 FC 120 (issued in February, 2011) found the mandatory retirement provision of the collective agreement was of "no force and effect" by reason of the unconstitutionality of Paragraph 15(1)(c) of the CHRA. The Federal Court did not issue a general declaration stating either that Paragraph 15(1)(c) was unconstitutional or that the mandatory retirement provision of the collective agreement was invalid. However, it made “findings” of the same in respect to both.

6. The Federal Court decision, in my view, and in the view of the Canada Industrial Relations Board (“CIRB”) in a recently released decision, is binding upon the Tribunal and upon the CIRB. I also believe that the finding is binding upon Air Canada and ACPA. This opinion is apparently shared by at least three other unions who represent Air Canada employees, because they used the decision as justification for allowing their members to proceed to a grievance arbitration in respect of their termination of employment on the basis of age.

7. That opinion is likely not shared by Air Canada or ACPA, because notwithstanding the decision, Air Canada is continuing to terminate the employment of pilots who reach age 60, however, the potential availability of the BFOR defence clouds the issue. We do not "know" whether Air Canada and/or ACPA "believe" that the Federal Court decision is "binding" upon them.

8. Notwithstanding the "finding" of the Federal Court, both Air Canada and ACPA have taken the “position” that because the Federal Court did not issue a general declaration of invalidity of Paragraph 15(1)(c) of the CHRA, they may continue to avail themselves of the mandatory retirement provision, but again, that "position" is clouded by the potential application of the BFOR defence.

9. In the Federal Court of Appeal hearing re the Federal Court decision (of February, 2011), the Attorney General of Canada told the Court of Appeal that if Paragraph 15(1)(c) of the CHRA is found by the Court to be contrary to the Charter, the Court has no choice but to issue a general declaration of invalidity. Its position was founded upon the proposition that unconstitutional law cannot be allowed to “remain on the books.” The AG also stated that the Court had the discretion to delay the implementation of the declaration, pending the coming into force of the repeal of the exemption (one year from yesterday).

As above, there is one other major legal issue in the mix, here.

10. Both ACPA and Air Canada have asserted that regardless of the validity of Paragraph 15(1)(c) of the CHRA, they can still avail themselves of a BFOR defence, although the basis of the defence differs between the union and the employer, according to their submissions to the Tribunal.

11. Because two separate Tribunal decisions on BFOR arrived at polar opposite outcomes within one month, the first on finding the mandatory retirement provision to be a BFOR, and the second one rejecting the BFOR, it is arguable (and ACPA has not failed to argue) that there exists a degree of uncertainty with respect to the availability of a BFOR defence to the otherwise unlawful termination of employment of pilots at Air Canada.

12. Unfortunately, and this is my opinion only, until this issue ultimately and finally resolved by the Tribunal and/or the Court(s), this “uncertainty” argument carries a degree of influence.

13. The constitutionality of Paragraph 15(1)(c) of the CHRA will be decided by the Federal Court of Appeal, based on arguments made at our hearing on November 22nd and 23rd in Ottawa. That decision should be released in February or early March, in my view.

14. The decision, whichever way it goes, is likely to be appealed to the Supreme Court of Canada.

15. Court decisions, once released, are "law" until overturned on appeal. The filing of an appeal has no legal impact, other than to tell the world that the issue is being contested. Tribunals and courts are bound by the decisions until they are overturned.

I trust that these “comments" will assist in the discussion of these issues.
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Last edited by Raymond Hall on Sat Dec 17, 2011 7:47 am, edited 2 times in total.
Raymond Hall
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Re: Can the illegal acts still be condoned?

Post by Raymond Hall »

Duplicate post deleted.
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yycflyguy
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Re: Can the illegal acts still be condoned?

Post by yycflyguy »

14. The decision, whichever way it goes, is likely to be appealed to the Supreme Court of Canada.
Agreed.
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yycflyguy
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Re: Can the illegal acts still be condoned?

Post by yycflyguy »

vic777 wrote:When the contract is under negotiations we still adhere to the terms of the previous contract. But what when the expired contract is declared illegal? Can AC still force retire Pilots at Sixty now that it is illegal? Can they hide behind the old expired way of doing things until the new contract is signed? Or must AC permit over Sixty Pilots to keep flying effective immediately? We have no "current" contract, can AC use this fact to break the law? AC has gotten the Federal Government into the negotiations, will the Federal Government let AC break the law regarding FlyPastSixty? Does ACPA have any idea what AC and the Government are deciding on this matter?

Is ACPA completely shut out of negotiations?

Maybe as a bargaining ploy and to get back into the game ACPA should insist that over age Sixty Pilots are brought back immediately.

In fact, can any of the ACPA negotiators fathom the effect it would have on AC if ACPA said, "We must follow the law, bring those Pilots back"? Talk about taking control of negotiations!
I like that you are offering a solution. Have you suggested this to the MEC, age 60 committee and the NC? Please do. Convincing a bunch of anonymous posters here is not productive. I agree that there needs to be language in the next contract that addresses retirement age and have mitigating options.
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vic777
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Re: Can the illegal acts still be condoned?

Post by vic777 »

yycflyguy wrote:I agree that there needs to be language in the next contract that addresses retirement age and have mitigating options.
It will be interesting to see what language AC forces ACPA to sign on to. With such massive savings in costs to AC starting next December due to FlyPast60, it will be appalling if ACPA scores none of these benefits for its members. ACPA should take control of the negotiations and insist on FlyPast60 immediately. Does anyone at ACPA even know how large the gains to AC through decreased cost etc. will be? Will the contract have any provisions to deal with the NWO starting December 2012 or will ACPA just keep its head in the sand and get totally hosed?
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Martin Tamme
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Re: Can the illegal acts still be condoned?

Post by Martin Tamme »

vic777 wrote:With such massive savings in costs to AC starting next December due to FlyPast60...
If AC is going to have such massive costs savings starting next December, why are they continually fighting to ensure it never gets implemented? Do they and their experts know something that you don't?
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vic777
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Re: Can the illegal acts still be condoned?

Post by vic777 »

Martin Tamme wrote:
vic777 wrote:With such massive savings in costs to AC starting next December due to FlyPast60...
If AC is going to have such massive costs savings starting next December, why are they continually fighting to ensure it never gets implemented? Do they and their experts know something that you don't?
They certainly know something ACPA doesn't. What has ACPA got to say about AC's massive upcoming savings? Does ACPA have any idea as to AC's training costs or any of AC's Pilot related costs? Does ACPA recognize the value of knowing these costs? What does ACPA say the costs and benefits are?
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Martin Tamme
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Re: Can the illegal acts still be condoned?

Post by Martin Tamme »

Obviously there aren't any massive cost savings, otherwise AC wouldn't be fighting it.
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Rockie
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Re: Can the illegal acts still be condoned?

Post by Rockie »

Martin Tamme wrote:If AC is going to have such massive costs savings starting next December, why are they continually fighting to ensure it never gets implemented?
They aren't idiots and they know beyond a shadow of a doubt it will eventually get implemented (on December 15th, 2012 to be exact...if not sooner). A senior manager featured prominently in this issue told me so years ago.

Maybe the fact we stupidly agreed to pay half of whatever cost is incurred has something to do with Air Canada's willingness to drag this out as long as possible. The cost to us will be huge, and the discredit it will surely bring to ACPA is impossible to put a dollar figure on.

Their one time costs are more than offset by continuous savings in training and easement of the pension, while we have just the cost and damage this has wrought on the pilot group now and into the future. Like taking candy from a baby.
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accumulous
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Re: Can the illegal acts still be condoned?

Post by accumulous »

Martin Tamme wrote:Obviously there aren't any massive cost savings, otherwise AC wouldn't be fighting it.
Those 'massive' savings are the long term savings. The short term savings are in wrapping up TA2. Once the ink's dry on that, barring another round of in-house lynchings, it'll be time for the long term savings.

It's all about the shareholder. It would be a different story if the pilots owned the airline or were the employer. But they don't, and they're not, respectively.
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Martin Tamme
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Re: Can the illegal acts still be condoned?

Post by Martin Tamme »

accumulous wrote:
Those 'massive' savings are the long term savings. The short term savings are in wrapping up TA2. Once the ink's dry on that, barring another round of in-house lynchings, it'll be time for the long term savings.
So you are saying that AC is only keeping up the AGE 60+ fight for the time being because they are too busy dealing with TA2; however, once TA2 is a done deal, they will then turn their attention to the AGE 60+ issue and drop it's opposition?

Why did they then just drop off a box containing 16.3 Kg in documents -related to their support of their judicial review in respect of the BFOR issue- on Ray's doorstep not even a week ago?


Again, if there are massive cost savings, whether short or long-term, why is AC in opposition of allowing pilots to fly past 60?
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vic777
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Re: Can the illegal acts still be condoned?

Post by vic777 »

Martin Tamme wrote: Again, if there are massive cost savings, whether short or long-term, why is AC in opposition of allowing pilots to fly past 60?
There are hiring savings, there are massive training savings, there are pension savings. We are talking about hundreds of millions of dollars. AC seems to think they have a BFOR, hard to think they can't solve that issue with one average computer programmer, but maybe everyone in Management thinks it is a big issue, someone should educate them. But I'd like you to answer the question ...
why is AC in opposition of allowing pilots to fly past 60?
Because it does seem to be quite perplexing, did they just start down this road without knowing what they were doing? Wouldn't be the first time. Which Executive is responsible for this decision? Is he still with us?
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Martin Tamme
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Re: Can the illegal acts still be condoned?

Post by Martin Tamme »

So you are saying that maybe Air Canada's management is just inept? Obviously they are getting their advice from someone who is crunching the numbers. Maybe their accounting department is just not up-to-speed?

From where I sit, it would appear that Air Canada does not believe there to be any cost savings in allowing pilots to fly past 60. It doesn't matter anymore what ACPA has to say on the matter, because Air Canada is determined for it not to happen.
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Last edited by Martin Tamme on Sat Dec 17, 2011 2:50 pm, edited 1 time in total.
accumulous
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Re: Can the illegal acts still be condoned?

Post by accumulous »

Martin Tamme wrote:
accumulous wrote:
Those 'massive' savings are the long term savings. The short term savings are in wrapping up TA2. Once the ink's dry on that, barring another round of in-house lynchings, it'll be time for the long term savings.
So you are saying that AC is only keeping up the AGE 60+ fight for the time being because they are too busy dealing with TA2; however, once TA2 is a done deal, they will then turn their attention to the AGE 60+ issue and drop it's opposition?

Why did they then just drop off a box containing 16.3 Kg in documents -related to their support of their judicial review in respect of the BFOR issue- on Ray's doorstep not even a week ago?


Again, if there are massive cost savings, whether short or long-term, why is AC in opposition of allowing pilots to fly past 60?

That’s not the text of it but the contract has to be the most pressing issue right now. Of course AC is looking for concessions. What employer doesn’t?

December 2012 is further downrange, and that’s where the longer term savings are for 3000 pilots, although you’re making an interesting set of suggestions about a connection between the short term and long term events.

Surely the pilots have their eyes wide open right now and won’t get blindsided by anything. Hopefully we’re not wearing the ‘Emperor’s New Clothes’ to the picnic.

We have to remember that while we’ve been busy in pretty much all the big courtrooms in the country, trying to change the Charter of Rights and Freedoms, the Company was busy shopping for a Conciliator. Do the math on that one. You could be right. ACPA just might have the Company right where the Company wants ACPA to be.
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vic777
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Re: Can the illegal acts still be condoned?

Post by vic777 »

Hey Rockie,

Why wouldn't AC want to implement FlyPast60? The whole thing seems fishy. Are there any figures available to show the massive savings to AC by implementing FlyPast60? ACPA is not capable of getting these answers, is there any other way to get them? Who was the AC Executive who decided to fight FlyPast60?

I think the BFOR requirement is BOGUS. What is the real reason? Did AC get "hosed" by ACPA on this one?
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Raymond Hall
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Re: Can the illegal acts still be condoned?

Post by Raymond Hall »

Evidence. Here is some on this topic, direct from Air Canada's key Flight operations witness, under direct examination by Air Canada's counsel, in the Thwaites hearing. The excerpt is from the official transcript of the hearing, at the page numbers cited:

2218

21 MS. TREMBLAY: Okay. So you were
22 describing in page 65 you know, what would happen to
23 training costs if you exceed those boundaries. Now I
24 just want to talk about training costs but a bit in a
25 different context. If you had a pilot who delays his

2219
1 retirement by one year. So if instead of retiring at
2 age 60, he retires at age 61, what does that do to the
3 training costs of Air Canada?
4 CAPTAIN DUKE: If the pilot defers
5 the -- well, the way we think of a retirement affecting
6 our training is, that pilot has to be backfilled and
7 then that pilot has to be backfilled, and it causes
8 seven training courses including that of a new hire to
9 replace the retiring pilot. So if a pilot retires it
10 causes $300,000 worth of training. If the pilot delays
11 the retirement one year, that would delay that cost of
12 $300,000 by one year.
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Martin Tamme
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Re: Can the illegal acts still be condoned?

Post by Martin Tamme »

Raymond Hall wrote:the way we think of a retirement affecting
6 our training is, that pilot has to be backfilled and
7 then that pilot has to be backfilled, and it causes
8 seven training courses including that of a new hire to
9 replace the retiring pilot. So if a pilot retires it
10 causes $300,000 worth of training. If the pilot delays
11 the retirement one year, that would delay that cost of
12 $300,000 by one year.

So there are no real cost savings; rather, all you have is a "delay in costs". It could be one Quarter, one year, or maybe even 5+ years, but in the end a cost will be borne. The problem is that if a pilot gets to choose when to retire, Air Canada will not know when they would have to bear that cost: Is it going to be this month, this year, or the year thereafter? How do make an annual budget if you can't plan your fixed costs accordingly?

Then there is also the time horizon. Let's assume that a pilot no longer has to give notice as to when he wants to retire. Suppose one day he wakes up and decides this to be his last day. Can the Company replace him tomorrow? The answer is yes if the position that pilot held was either an EMJ F/O or RP. However, if he happens to be a B777 Captain, it may require 7 different courses -requiring most probably over a year's time frame of training- to have him replaced. As such, you can't just replace a B777 Captain on the spur of the moment (Unless of course you do away with the Seniority-based system, which may also be a Human Rights violation).

Also, let's assume that pilots will get to decide when they want to retire. If it where up to you and you decided you wanted to retire this year, which month would decide to retire in? Most probably, most would choose either June or July 1st. What would happen if every single B777 Captain were over the age of 60, and all of sudden all decided to retire July 1st? What would happen to the B777 fleet over the summer?

The point that I'm trying to make is that not being able to plan correctly will bear a greater cost than the savings earned by having those costs delayed. This has an economic impact, which is the foundation of a BFOR argument.
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Re: Can the illegal acts still be condoned?

Post by Rockie »

$300,000 per pilot, and that doesn't include cost savings on the pension.

Goes a long way to recouping whatever it will cost Air Canada. ACPA (meaning us) on the other hand doesn't save a penny, and will be directly out of pocket for half of the liability plus legal costs incurred. Plus when ACPA finally has to own up to how badly they mishandled this whole sorry mess their credibility will take a serious blow.

Hard to see a downside for the company pursuing this agenda they know they will lose eventually.
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Re: Can the illegal acts still be condoned?

Post by Martin Tamme »

...but it doesn't matter what ACPA (meaning "we") decide, because Air Canada is determined to fight this. As has already previously been pointed out on this Board, ACPA is basically out of the picture, being relegated to merely being an observer. It doesn't matter what ACPA wants, the Company will not and would never have acquiesced.

P.S. The $300,000 per pilot is not a cost savings; rather it is a delay in cost. The savings would be in the interest earned on the $300,000 over the time period of the delay if it were invested in T-Bills.
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Re: Can the illegal acts still be condoned?

Post by 777longhaul »

Martin

The answer to your question is simple.

The pilot, regardless of age, will be required by the contract, to give notice. (what ever that maybe, as agreed to acpa/AC hopefully, on this contract).

My view, is that the pilot would give 12 months notice, and have the option of doing that on July 1 or Jan 1 each year.

That gives the co plenty of time to plan to fill the required training movements, and allow for pension planning on the pilots part. it also, allows the co to plan any additional hiring etc.

The numbers can be moved around to obtain the best possible solution for all concerned. It is just a matter of thinking, and planning differently, than they have in the past.

Remember, that not everyone wants to stay, nor will they. The numbers I have seen, show that only 10% of the pilots at that age, want to stay. Regardless of what the percentage is, for every pilot staying the extra year(s), the option of a pilot retiring the same amount of year(s). It is a trade out, with not penalty to the pension plan for early retirement.

This is not that complicated, that even AC/acpa cant handle it. BUT, it must go into the contract now, during negotiations.

The law, is in effect for Dec 15 2012. Howver, any pilot that was planned to be forced retired in Dec 2012, (regardless of which day in Dec 2012) will not be forced out. The pilot, (he/she) officially retires on Jan 1 2012, for all Dec retirements. So, the planning will need to be done for all of Dec 2012, not from Dec 15th onward.

The BFOR issue is available, to AC. It is set in law. It is only applicable, to EACH individual pilot. It can not be applied to a group of pilots. So AC, will have to prove that keeping 2 or 3 pilots, or what ever the number is, creates undue hardship. The BFOR is only on a per person basis, and it is only available, to the employer.

Maybe AC will win the BFOR issue, maybe they wont. The Federal Court of Appeals, is going to let us all know in the New Year, and when they do, that will be the law, and it will be that way, unless the SCC decides to hear the case, and if the SCC overturns, which EVER ruling is issued by the FCA.

There is a huge opportunity right now, to get the acpa contract set up, so that everyone is better off. If acpa fail to set up the opportunity, and explain it properly to the entire pilot group, that will be the biggest loss, in this contract.

The pending pension issue, coming, with the stock markets and world markets heading further down, this will be a very important change to the collective agreement. Hopefully, the obvious advantages, will be utilized by acpa and AC.
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Re: Can the illegal acts still be condoned?

Post by Martin Tamme »

777longhaul wrote:
The pilot, regardless of age, will be required by the contract, to give notice. (what ever that maybe, as agreed to acpa/AC hopefully, on this contract).

My view, is that the pilot would give 12 months notice, and have the option of doing that on July 1 or Jan 1 each year.

In theory this would work, but in reality it would not. Let's say you decide to go in 12 months from now, namely January 1st, 2013. However, all of a sudden your spouse gets sick next July and you need time off to be with her. Do you think Air Canada will be able to say "tough, you have to remain until next January, regardless of your circumstance"? That's not going to happen... you're gone. If a person wants to quit a job, you can't force him to stay. Isn't this what this fight is all about: Giving people the choice as to when they want to retire?

777longhaul wrote: The BFOR issue is available, to AC. It is set in law. It is only applicable, to EACH individual pilot. It can not be applied to a group of pilots. So AC, will have to prove that keeping 2 or 3 pilots, or what ever the number is, creates undue hardship.
If a pilot decides to quit without notice and the Company did not plan to having a replacement readily available (because they were not anticipating this withdrawal of service), would it not create undue hardship? The Company would have to carry additional pilots on the roster just as insurance.


777longhaul wrote: Maybe AC will win the BFOR issue, maybe they wont. The Federal Court of Appeals, is going to let us all know in the New Year, and when they do, that will be the law, and it will be that way, unless the SCC decides to hear the case, and if the SCC overturns, which EVER ruling is issued by the FCA.

There is a huge opportunity right now, to get the acpa contract set up, so that everyone is better off. If acpa fail to set up the opportunity, and explain it properly to the entire pilot group, that will be the biggest loss, in this contract.
Sections of the contract can be opened up at any time if both parties agree. A deal can be made now in principle, but it wouldn't have to be implemented until the last Court has spoken. How do we know that this has not already been done, and we are just awaiting the outcome of the final Court decision on the matter?
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Last edited by Martin Tamme on Sat Dec 17, 2011 4:47 pm, edited 1 time in total.
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