CUPE (AC) Supports Those Opposing Mandatory Retirement

[Understated]

CUPE (AC Component), representing Air Canada's flight attendants, issued a bulletin this past week to all members saying they sought and received legal advice from three separate lawyers regarding a suggested duty to represent those who oppose mandatory retirement at age 65, according to requirements under the Canada Labour Code.

The bulletin stated that the three independent legal opinions received were unanimous: the union has a duty to represent all of its members, including those who oppose mandatory retirement.

At the Toronto ACPA general council meeting this week, however, one of the spokespersons for ACPA openly stated, "We don't represent those pilots," referring to those who oppose the view of the union that mandatory retirement at age 60 should remain.

It will be interesting to see how this plays out, given that apparently some 75 pilots in August filed a duty of fair representation complaint with the Canada Industrial Relations Board alleging breach of duty of fair representation by ACPA by reason of its refusal to represent them in regard to their termination of employment at age 60.

Can anyone provide any information regarding the nature and status of that legal proceeding?

[Canuck223]

While this doesn't help with your specific question, this may provide an incite into the related issue.

A decade ago a friend who's an EMT was charged with sexually assaulting a mentally ill patient while transporting her from her care facility to the hospital. The case went to court and my friend was put through the wringer. Ultimately he was cleared of any wrong doing. It turns out the lady had a long history of false accusations.

Anyway, to get to your issue....

His union had a legal fund to protect members from work related issues. When he was charged, he paid his lawyers retainer, and then contacted the union about access to the legal fund. He was called in to a meeting and informed that while the union had a duty to defend him, due to the nature of the charges they would not do so as a matter of policy. However, they assured him that if and when he won his case, they would then be able to re-emburse him and act as his agent to see that the city compensated him for he expenses.

The gist of the matter was that the union may be obligated, they may choose to abandon that obligation. Legal opinion aside, they may take the position that they will hold firm and let the aggrieved individuals fight them on it. Sort of like any other corporation, sometimes they may willingly take an indefencible position, gambling that they have less to lose in court than they do complying.

[JayDee]

ACPA's chicken's will soon come home to rest, but instead of the hoped for spreading of wings they will all be DEEP FRIED.

[Max111]

LATEST NEWS
Issue 51 September 22, 2010
“Mandatory Retirement Update”
In our last bulletin regarding mandatory retirement, we let you know that given recent
court decisions, it was our expectation that Air Canada would be reviewing its mandatory
retirement policy.
We also committed to seeking legal counsel to determine the effect that these court
decisions would have on us. Given the importance of this issue to the Membership, legal
opinions were sought from three different lawyers.
All three lawyers were unanimous in their opinion that given the recent court decisions, the
Union now has an obligation to represent Members who may wish to grieve the Company’s
refusal to allow them to work past the age of 65. Further, any refusal on the Union’s part
to grieve on a Member’s behalf could result in complaints being filed against the Union at
the Human Rights Commission, or the Canada Industrial Relations Board.
In a recent case involving four Air Canada Flight Attendants, the Human Rights Tribunal
ruled that the mandatory retirement provision of the Canadian Human Rights Charter is not
applicable where an application of this provision would be discriminatory. This means that
we must now challenge Air Canada’s policy of mandatory retirement in order to protect the
Membership from future liability.
Accordingly, the Union will fulfill its obligation to file and pursue grievances as members
who request to continue their employment with Air Canada beyond the age of 65 are
refused by the Company.
In Unity,

[600RVR]

WOW F/A's older than 65 years old, that will be a real treat. Its all bad enough on some of those overseas flights. Wait till they reach 70+ years old. I hope to god someone has the sense to think about safety before this comes true. But then again you guys wont stop at nothing and post anything to help fulfill your own agendas. And in some strange sense you guys think that this is all O.K

[Understated]

And in some strange sense you guys think that this is all O.K

Yes. And so does Parliament, so does Transport Canada, so does the CHRC, so does the CHRT, so does the CIRB, so does every provincial government in this country, and so does just about everyone else in this country except your union and its elitist, sanctimonious members. No wonder your union is spending hundreds of thousands of dollars on legal expenses for human rights claims.

WOW F/A's older than 65 years old, that will be a real treat. Its all bad enough on some of those overseas flights. Wait till they reach 70+ years old.

Your post is reprehensible.

[joebloggs]

Reprehensible?!? Do you think that if an Air France incident were to arise that 65+ year old f/a's will be able to do the same job?? I don't, and I bet A LOT of the travelling public think the same way. This is inviting trouble in a big way. I am sure Transport will also have a say in this as well. Give your head a shake.

[Lost in Saigon]

I doubt you know the actual ages of the Air France F/A's that evacuated flight 358 in Toronto that day.

There are lots of F/A's that are well under age 65 who are overweight and out of shape. They can barely maneuver up the aisle and get winded climbing one flight of stairs.

Did you know that in the USA there is no retirement age for F/A's? Some are in their 70's. While I've never met one personally, I am sure there are many OVER 65 F/A's in the USA who are surprisingly fit.

[600RVR]

Understated,

Tell me how Parliament agrees with no age for retirement? Whats the retirement age for the RCMP, Military, any federal gov worker or any police force through out Canada for that matter. Just curious

600RVR

[Understated]

I am sure Transport will also have a say in this as well. Give your head a shake.

You are sure, on the basis of what? Give your own head a shake. All of those presumptions that you and so many other age-biased individuals have always made and are continuing to make are not passing any test of reality right now.

Transport Canada told ICAO, when it was contemplating raising the age for PIC from 60 to 65, that it objected to any maximum age restriction for pilots-in-command because, in its words, maximum age restrictions violate the Charter of Rights and Freedoms. Transport Canada removed the maximum age limits for pilots 25 years ago.

If pilots have no age maximums, because of the Charter prohibitions, do you think that Transport Canada could, even if wanted to, come to any different conclusion regarding flight attendants? On what basis? If they pass their recurrent assessments of their ability to do the job, do you honestly believe that they will be prohibited from working because of an arbitrary age restriction. Its time to you to look inward, at your own biases and prejudices.

[Understated]

Tell me how Parliament agrees with no age for retirement? Whats the retirement age for the RCMP, Military, any federal gov worker or any police force through out Canada for that matter.

It was Parliament (and the provincial legislatures) that enacted the Charter of Rights and Freedoms that contains the equality provisions (no discrimination on the basis of age etc.). Those provisions came into force (in 1985) three years after the rest of the Charter provisions, in order to give the public a chance to adapt their procedures and policies to the impact of the Charter on federal and provincial laws, including the Canadian Human Rights Act.

Some federal employees still have maximum age restrictions, but most of them have been either repealed, or they are in the process of being found to be contrary to the Charter equality provisions, through one legal challenge after another. The majority of federal civil servants now have no maximum age restriction. The maximum age was eliminated about ten years ago. The military does, but the provision that each member of the military must be "combat capable and ready" is coming under increasing challenge. In any arbitrary legislative maximum age, the onus is on those defending it to show that it is not only justified, but that those who are affected by it cannot be otherwise accommodated.

[Understated]

I am sure there are many OVER 65 F/A's in the USA who are surprisingly fit.

Correct. But that is not the issue. The issue is whether there should be any arbitrary maximum age applied to everyone. If so, on what basis?

First, there is no justification whatsoever for any arbitrary age, strictly by reason of the fact that the age is arbitrary.

Second, if a person can perform the job, as demonstrated by recurrent training, the law supports allowing the person to keep the job, regardless of age.

[Max111]

600RVR,

No offense meant...but seriously you have no idea what you are taking about. It is not entirely your fault...the union has only presented one side of the question.


Mandatory retirement is not allowed under the provincial labour code period. But common sense will tell you that is only part of the equation...You must be able to do the job.

So how do "they" protect the system ???? It's called a BFOR requirement This is so basic to the discussion that it begs the question...why don't you know this ??

Respectfully submitted.

[yycflyguy]

I am sure there are many OVER 65 F/A's in the USA who are surprisingly fit.

Correct. But that is not the issue. The issue is whether there should be any arbitrary maximum age applied to everyone. If so, on what basis?

First, there is no justification whatsoever for any arbitrary age, strictly by reason of the fact that the age is arbitrary.

Second, if a person can perform the job, as demonstrated by recurrent training, the law supports allowing the person to keep the job, regardless of age.

Welcome back psuedo-Ray.

[Raymond Hall]

Welcome back psuedo-Ray.

As you know, I am fully capable of speaking for myself. I do not need to hide behind a pseudonym. And I will have a great deal to talk about very shortly, especially after the CIRB rules on the DFR complaint, to which ACPA provided no defence whatsoever. If you would like a true update, have a look at http://www.flypast60.com .

And by the way, I did not attend the YYZ meeting this week, in case you didn't know, as Understated evidently did.

But as you might expect, I follow all of this with much interest. Now, back to lurking.

[yycflyguy]

Before you go back to lurking, could you reply to a rumour that has been floating around. It has been said that both Vilven and Kelly were offered course dates on the EMB on three different occasions but they were no-shows. Like I said, only hearsay but was wondering if you could substantiate or deny.

Also, why is the Remedy taking so long to be released?

[Lost in Saigon]

Before you go back to lurking, could you reply to a rumour that has been floating around. It has been said that both Vilven and Kelly were offered course dates on the EMB on three different occasions but they were no-shows. Like I said, only hearsay but was wondering if you could substantiate or deny.

This was covered at the YYZ LEC meeting last week. They were not "No Shows". They were offered employment, but the conditions under which they were asked to sign on to were unacceptable to them so they respectfully declined. An attempt was made to negotiate the conditions but the Company (read ACPA) wouldn't budge.

I haven't seen the MOA but I heard that it committed them to some very unfavorable conditions.

Here are some of the rumoured conditions of employment:

No GDIP
Frozen as EMB F/O for life
Unable to contribute or participate in the pension plan

[yycflyguy]

No GDIP
Frozen as EMB F/O for life
Unable to contribute or participate in the pension plan

I get no GDIP and not being allowed to contribute to the pension plan (wont they be receiving pension + salary on their return?) but how does AC/ACPA expect to acknowledge discriminatory process and then try to force a lifelong sentence on the EMB? Was that justified somehow?

Wish I could have been at the meeting. After they changed the date I was out flying.

[Raymond Hall]

It has been said that both Vilven and Kelly were offered course dates on the EMB on three different occasions but they were no-shows. ... Also, why is the Remedy taking so long to be released?

Second question first: I have absolutely no idea why it is taking so long. I must assume that the resolution of the legal issues is far more complex than the Chair estimated, when he said at the hearing that he would do his best to have the decision rendered by June 1st. That isn't the only decision pending. The Thwaites hearing finished mid-January, and that decision hasn't been rendered yet either. Because the legal issues in both cases are tightly linked, perhaps they will both be rendered at the same time?

First question: not correct. There was never any agreement actually reached regarding their return to work. The issue is currently before the CIRB in the Duty of Fair Repersentation ("DFR") complaint, about which I am not at liberty to discuss, pending the deliberation of the complaint by the Board.

[yycflyguy]

It has been said that both Vilven and Kelly were offered course dates on the EMB on three different occasions but they were no-shows. ... Also, why is the Remedy taking so long to be released?

Second question first: I have absolutely no idea why it is taking so long. I must assume that the resolution of the legal issues is far more complex than the Chair estimated, when he said at the hearing that he would do his best to have the decision rendered by June 1st. That isn't the only decision pending. The Thwaites hearing finished mid-January, and that decision hasn't been rendered yet either. Because the legal issues in both cases are tightly linked, perhaps they will both be rendered at the same time?

First question: not correct. There was never any agreement actually reached regarding their return to work. The issue is currently before the CIRB in the Duty of Fair Repersentation ("DFR") complaint, about which I am not at liberty to discuss, pending the deliberation of the complaint by the Board.

Because the legal issues in both cases are tightly linked, perhaps they will both be rendered at the same time?

Doesn't that suggest that each complaint is not being addressed individually on its on merits?

A very basic question. How can there by a Duty of Fair Representation complaint if both Vilven and Kelly are both retired and no longer ACPA members? Seems to me the cart is going ahead of the horse. They need to have their discriminatory case resolved first before any issues of DFR can be filed. Maybe you can't comment on that.

[Raymond Hall]

Doesn't that suggest that each complaint is not being addressed individually on its on merits?

No. Not necessarily. The same issues arose a number of times, in each proceeding. It is not uncommon for the decision-maker to render separate decisions, while addressing the issues independently. The key is that the decision principles be consistent, so far as the underlying facts are consistent.

How can there by a Duty of Fair Representation complaint if both Vilven and Kelly are both retired and no longer ACPA members?

That issue was raised by ACPA in its reply to the complaint regarding the non-V-K complainants. It was also answered in the complainants' response to ACPA's reply. The YYZ Base Chair apparently stated at the Council meeting last week that these documents would be made available to those members who wish to see them, but that they will not be posted on the web site--you might want to contact your ACPA reps.They can also be obtained through an Access To Information request to the Board, but that takes a considerable amount of time, of course.

In short, there is Supreme Court of Canada case law that says that the duty of fair representation may (but does not necessarily) survive termination of employment. In the case at hand, ACPA and Air Canada negotiated an agreement affecting their rights as members. As the sole party responsible for representing their rights before the employer in respect of their terms of employment, it can hardly be argued that the union does not have a duty of fair representation in respect of that agreement.

The classic “but for” legal argument is also applicable. But for their wrongful termination of employment, they would both still be members entitled to fair representation.

Of course, you remember the most extreme case of the “but for” argument, don’t you? Where the child who murdered both his parents argues that he should be entitled to mercy because he is an orphan.

[wirez]

WOW F/A's older than 65 years old, that will be a real treat. Its all bad enough on some of those overseas flights. Wait till they reach 70+ years old. I hope to god someone has the sense to think about safety before this comes true. But then again you guys wont stop at nothing and post anything to help fulfill your own agendas. And in some strange sense you guys think that this is all O.K

As a AC FA, I agree with the post above. We don't need 90 year old FAs like in the US.

[groundeffect]

Wow Raymond. You keep stating ACPA like it is a foreign entity to you or something.
You were ACPA. You were the MEC chair. What a golden opportunity to have introduced your enlightened thoughts
on discrimination/forced retirement. I used to listen to your phone in messages. The subject never came up. As a matter of fact,
I don't remember you jumping on the discrimination band wagon until you were 58 1/2 or so.
Why the disconnect I wonder?

It's a spade folks.

[Understated]

I don't remember you jumping on the discrimination band wagon until you were 58 1/2 or so.

Thanks, GroundEffect, for attempting to diminish this thread into the identical slanderous drivel that has ended other threads on this forum.

If you ever get past the messenger to the seriously consider the message, you might, just might, hear the drum beat. If you have been around long enough to have listened to his messages when he was on the MEC, you obviously have been around long enough to know that your ACPA, our ACPA, is not the same organization that it was when it was formed specifically to get away from the exact same types of behavior by our former union that are now being perpetrated by our own leaders.

Our union is in trouble, with a series of events about to shake our complacency, one after another. You probably don't believe that, because you aren't interested in listening to the messages about the warning signs. No-one really cares whether you do or not. But please spare us the cheap shots. Instead of bringing someone else down, raise yourself up.

[Raymond Hall]

I used to listen to your phone in messages.

If you found my phone messages informative, you owe it to yourself to read the submissions in the Duty of Fair Representation complaint. Both sides. Apparently, the YYZ Base Chair said that he would make them available to you. Take him up on his offer. Examine the documents, first hand, to get a feel for what is actually going on across the street from T1.

Make sure that you ask to see the full set, including the supplemental submissions that were made by both sides after the CIRB "encouraged" ACPA to abandon its repeated refusal to disclose the actual Memorandum of Agreement to the very pilots who were to be adversely affected by its terms and conditions. Take a close look at that amendment to your collective agreement that your Association executed without disclosing it to you and without giving you the opportunity to vote on it, as required by your Constitution.

Then sleep tight, waiting for the CIRB decision to be released, keeping in mind the words of your current MEC Chair in his newsletter of August 5th, "We anticipated this tactic and welcome the opportunity to respond before the Canada Industrial Relations Board. We do not believe the complaint has any merit."