Federal Court Judicial Review Hearing Completed

[JayDee]

The irony here is not that you are using the charter in an attempt to change the laws regarding mandatory retirement at the federal level. The irony is that you are attempting to use the charter to take from one age group, and give to another age group, on the basis that to not do so, is ageism.

" You do not have a human right to take that which does not belong to you, just because you fit a specific age group. Making sure the collective pie is distributed as intended has nothing to do with ageism. "

" At the end of the day the charter is about equality. Not about using it as a means to over ride the intended distribution of the collective bargaining process."

"Without it, unions can not control distribution because people won't fulfill their duty to their peers if not forced to. "

REPEAT

"Without it, unions can not control distribution because people won't fulfill their duty to their peers if not forced to."


And sir. That is what we intend to do.

Give it a rest Brickhead. Your responses are starting to sound like your name.

[Raymond Hall]

I have no idea why this thread was pulled last night, then reinstated this afternoon. In any event, thanks to the moderators for allowing the discussion to continue. Assuming that we behave ourselves and try to avoid the personal attacks, we could very well assist many in having a factual understanding of the issues related to this subject.

[Brick Head]

Gentlemen,

I do not decide what equipment I fly. I do not decide the seniority regime. I don't dictate pay scales. I don't dictate vacation assignments. I don't dictate monthly blocking. I don't dictate reserve rules. I don't dictate.....

If I was 50 I wouldn't be able to. If I was 60 I wouldn't be able to. If I was 70 I wouldn't be able to.

Why? Because all those things are decided through a democratic process for we which we all agreed to abide by, when we took the job. We all, everyone one of us, agreed to forego individual rights and instead agreed to subject ourselves to the will of the majority.

The term is called collective bargaining. The process is beneficial through the power a larger group brings.

Of course CBA's can't break the law in the process. If mandatory retirement is declared illegal it will be removed.

That does not mean however that individual rights all of a sudden trump the democratic process, or the intent and will, the collective made and agreed to (this includes you) in good faith To suggest such a thing would mean you are now advocating the termination of collective bargaining by having those collective rights trumped by individual rights.

The tribunal did not say any such thing. I have said this a few times. There is a line in the sand where human rights ends and collective bargaining rights begin. I don't know where the line is, only that there is a line.

I know Raymond doesn't agree with that opinion. He believes individual human rights trample collective bargaining rights. He believes human rights entitles him to a specific salary, position, title, vacation, monthly schedule, insurance and so on........

That position however is exactly why we should expect a long line of intervener's once this hits the Sup court. Not for or against a change to mandatory retirement. Rather opposition to an attempt to impose the will of individuals into the collective bargaining process for which we have all benefited.

[Brick Head]

"Without it, unions can not control distribution because people won't fulfill their duty to their peers if not forced to. "

REPEAT

"Without it, unions can not control distribution because people won't fulfill their duty to their peers if not forced to."


Give it a rest Brickhead. Your responses are starting to sound like your name.

JayDee you may not like what I just said. However it is the exact rational for why mandatory retirement has been deemed so important all these years. In fact it is the exact reason why mandatory retirement exists within CBA's.

Why? Because it is not the individuals right to decide what portion of the collective pie they will consume once they have joined a union.

[Raymond Hall]

That does not mean however that individual rights all of a sudden trump the democratic process, or the intent and will, the collective made and agreed to (this includes you) in good faith To suggest such a thing would mean you are now advocating the termination of collective bargaining by having those collective rights trumped by individual rights. ... I know Raymond doesn't agree with that opinion. He believes individual human rights trample collective bargaining rights. He believes human rights entitles him to a specific salary, position, title, vacation, monthly schedule, insurance and so on.

That is not what I am saying, and that is not an accurate view of what I believe. To frame this issue in the context of individual rights versus collective rights is to sidestep the fundamental issue before us. Namely, compliance with the provisions of the Canadian Human Rights Act.

Simply stated, once the mandatory retirement exemption is no longer available, the provisions prohibiting discrimination against age place restrictions on what the employer and the union can do. They mean that employers and unions cannot treat individuals differently, in a material way, on the basis of age. Period. Those prohibitions in the Act do not go away simply because ACPA does not agree with them. They are valid legal restrictions that constrain the employer's and the union’s behavior. No MOA. No third-tier pilots. No restricted position assignments and bidding rights. No blended salary and pension benefits.

Save for minor restrictions with respect to the Over-Under rule for pilots-in-command over age 60, age 60 will be a non-event. Its occurrence will be a transparent non-event for our pilots, just as it is for the pilots south of the border. The effect of this constraint means no change to the terms and conditions of seniority, position assignment, pension accrual entitlement and a whole host of other parameters of work, notwithstanding ACPA’s incredible refusal to believe the obvious.

That is what I am saying now. That is what I said five years ago. I have said nothing about individual rights trumping collective rights.

[Brick Head]

You do not have a human right to take that which does not belong to you, just because you fit a specific age group.

You have blended a remarkable sense of entitlement with a sense of ageism, all in one line,

Entitlement? I, as you, are entitled to the portion of the collective pie ear marked for us by the collective bargaining agent through the democratic process of collective bargaining.

[JayDee]

Individuals don't "join" a union, it is forced condition of employment along with the collective agreement that comes with it.

The only choice an individual has is to turn down the job in the first place.

[Raymond Hall]

I, as you, are entitled to the portion of the collective pie ear marked for us by the collective bargaining agent through the democratic process of collective bargaining.

There is no such animal in the collective agreement, despite how much you profess that there is one.

Whatever changes may result in the collective agreement to adjust for the fact that we now have pilots over age 60, the changes will not be made by using any age-60 basis of doing so, as that is expressly prohibited the CHR Act. Pure age discrimination, and illegal. Also, your (ACPA's) attempt to implement such changes would also violate the union's duty of fair representation provisions of the Canada Labour Code.

Get over it.

[Fleet80]

Raymond,
I appreciate the way you have kept the discussion on track despite the repeated attacks to your character and intent. Thank you for (mostly) keeping the discussion civil and informative.
I have a question: Many of the posts against the Fly Til U Die group see the end-loaded Collective Agreement as the big stumbling block to an equitable return to work protocol for the over-60 pilots. If the union can agree to a reduced pay scale for new-hires, position group pilots, narrow body pilots etc., can the union now legally negotiate a declining pay scale for those who choose to work past Age 60? Can the union negotiate reduced GDIIP coverage, an end to the "train-to-standard" clause, reduced EMA for the over-60 group or some such other measure to redistribute the collective pie so that it's not so end-loaded?
Thanks,
fleet80

[Fleet80]

Raymond,
I appreciate the way you have kept the discussion on track despite the repeated attacks to your character and intent. Thank you for (mostly) keeping the discussion civil and informative.
I have a question: Many of the posts against the Fly Til U Die group see the end-loaded Collective Agreement as the big stumbling block to an equitable return to work protocol for the over-60 pilots. If the union can agree to a reduced pay scale for new-hires, position group pilots, narrow body pilots etc., can the union now legally negotiate a declining pay scale for those who choose to work past Age 60? Can the union negotiate reduced GDIIP coverage, an end to the "train-to-standard" clause, reduced EMA for the over-60 group or some such other measure to redistribute the collective pie so that it's not so end-loaded?
Thanks,
fleet80

[Raymond Hall]

If the union can agree to a reduced pay scale for new-hires, position group pilots, narrow body pilots etc., can the union now legally negotiate a declining pay scale for those who choose to work past Age 60? Can the union negotiate reduced GDIIP coverage, an end to the "train-to-standard" clause, reduced EMA for the over-60 group or some such other measure to redistribute the collective pie so that it's not so end-loaded?

With the exception of insurance and disability issues, generally, no, in my opinion. The front-end parts of the contract are not based on age, although they obviously affect the younger workers. Age-based determination of wages and working conditions violate the law.

There are provisions within the regulations promulgated pursuant to the Canadian Human Rights Act that do allow for some age-based determinations for insurances and benefits, but those distinctions generally must be actuarially-based. Insurance gets more expensive for older persons, and the benefits may correspondingly be reduced. But outright prohibition, on an age-based criterion, as in the MOA, not possible, as I see it.

[yycflyguy]

Age-based determination of wages and working conditions violate the law.

That is exactly what the flypast60 crowd is doing. It's ok to take money from new hires, narrow body and position group pilots to compensate back end the salaries of the widebody crowd but if the suggestion is made for a declining pay scale it becomes an ageist issue. Challenging that the junior pilots don't have the "experience" that the senior pilots have. Unbelievable. It is reverse ageism that there is a flat pay, PG or that the NB took the extra 5% hit that we will NEVER re-coup in our now stagnated careers.

[Lost in Saigon]

There is no ageism with junior pilots. Junior pilot get paid less because they are junior. It doesn't matter whether you are 25 or 45 years old when you are hired. You still get paid the same.

Don't you understand how seniority works?

[vic777]

fleet80 asks ...

If the union can agree to a reduced pay scale for new-hires, position group pilots, narrow body pilots etc., can the union now legally negotiate a declining pay scale for those who choose to work past Age 60? Can the union negotiate reduced GDIIP coverage, an end to the "train-to-standard" clause, reduced EMA for the over-60 group or some such other measure to redistribute the collective pie so that it's not so end-loaded?

As the post above points out you are mixing age and seniority. A pilot may be 61 years old with 21 years of seniority and only able to hold 767 F/O, he is trying to get 25 years service in, should he take a pay cut ... which will affect his pension, after he reaches age Sixty? Those running ACPA should drop their personal agenda and negotiate more money for everybody.

[Raymond Hall]

It's ok to take money from new hires, narrow body and position group pilots to compensate back end the salaries of the widebody crowd but if the suggestion is made for a declining pay scale it becomes an ageist issue. ... It is reverse ageism that there is a flat pay, PG or that the NB took the extra 5% hit that we will NEVER re-coup in our now stagnated careers.

What is it about the situation facing you that causes you to be unable to understand or believe the most basic element of the message, despite the fact that it is repeated, repeated and repeated.

The issue is about to resolve itself without almost any regard for what you view as a sense of injustice. Why? Because the law is going to dictate the outcome. Age discrimination is illegal. Nothing related to our collective agreement is going to influence the Tribunal or the courts to treat Air Canada pilots as "a special case" when it comes to having to adapt to the legal realities.

So whine, complain, plead injustice all you want. Tell us about how unfair the impending outcome will be. Blame those who suggested long ago that you, not they, need to adapt to the legal realities. Then sit back and watch reality overtake you.

The travesty in the issue is not what is going to happen. You and I have little or no control over that. The travesty is that you and your union continue to fail first, to recognize the inevitability of what is going to happen, and second to work within the system to minimize the adverse consequences of the circumstances to those potentially most adversely affected.

Continue denying the facts. Continue accruing the liability. Continue attempting to delay the outcome. Continue attacking those who would have you help yourself change course, instead of dealing with the real problem. Then blame everyone but yourself for the consequences.

[Raymond Hall]

That position however is exactly why we should expect a long line of intervener's once this hits the Sup court. Not for or against a change to mandatory retirement. Rather opposition to an attempt to impose the will of individuals into the collective bargaining process for which we have all benefited.

JayDee you may not like what I just said. However it is the exact rational for why mandatory retirement has been deemed so important all these years. In fact it is the exact reason why mandatory retirement exists within CBA's. Why? Because it is not the individuals right to decide what portion of the collective pie they will consume once they have joined a union.

I am reading the proposed amendment to the Canadian Human Rights Act that is currently before Parliament that will repeal the mandatory retirement exemption. It doesn’t make any reference to Air Canada pilots. It doesn’t make any reference to deferred compensation schemes. And it doesn’t make any reference whatsoever even to collective bargaining. None, nada, nil. Once it is passed, there will be only one word after the paragraph number 15(1)(c) where the exemption now exists: Repealed.

The proposed legislation undoubtedly will not be made retroactive. In all likelihood, it won’t come into effect for at least six months after it is proclaimed into law. So our case will likely continue its climb to the Supreme Court of Canada, in order that all those who were force-retired prior to the date of the coming into force of the ban on mandatory retirement continue to be able to have their case evaluated on the basis of the issue as it currently has been expressed before the Federal Court.

Now, with respect to your suggestion of “a long list of intervenors” who will speak to the issue of “an attempt to impose the will of individuals into the collective bargaining process for which we have all benefited…” one must then wonder why they would even appear, or if they appear how they would argue one of the critical required elements of the Supreme Court’s decision on McKinney—that the requirement is “pressing and substantial,” after Parliament had recently repealed the exemption. How can it be a pressing and substantial need, if Parliament just axed it without any qualification?

Which is all the more reason why your assessment of the weight given by the Tribunal and the courts to the issue of deferred compensation is, I would suggest, overestimated, along the same lines as it was when prior to the Tribunal’s recent decision you were certain that the Tribunal would factor that aspect heavily, or at all, into the remedy decision.

[Dockjock]

If there isn't a written contract acceptance of the retirement age when one is hired at AC, there is at least a tacit acceptance implied by seeking and gaining employment here. I think 60 is entirely reasonable, and so does everybody de facto, by accepting employment. It may not be perfect but it is within the realm of "normal" enough that AC does not want for applicants for the position of pilot. If it were unreasonable, like 40 years old or 50, then I think pilots would vote with their feet and stop applying for the jobs here. But it isn't, it's 60. Which is reasonable.

[TyrellCorp]

Having given all of this some thought I'm starting to think that the best solution would be to dismantle the whole thing. Bring it all down, i.e. liquidate and then build it up from scratch properly. This way we won't have such a top biased system that has been "for the top by the top". We'll get an even distribution of the pie and it'll be fair for all and not just the fat cats at the top.

[yycflyguy]

There is no ageism with junior pilots. Junior pilot get paid less because they are junior. It doesn't matter whether you are 25 or 45 years old when you are hired. You still get paid the same.

Don't you understand how seniority works?

Yup, I sure do understand it. The system has been manipulated and exposed as being broken. Looking forward to blowing up the current system and starting over with a more equitable system.

[TyrellCorp]

There is no ageism with junior pilots. Junior pilot get paid less because they are junior. It doesn't matter whether you are 25 or 45 years old when you are hired. You still get paid the same.

Don't you understand how seniority works?

Junior pilots get paid what they get paid because they got sold down the river. Oh I understand how seniority works alright. Take from the have nots to enrich the haves. The only redeeming thing about it was that the have nots got to PROGRESS, but now that the greedy have found a way to stop that they can enjoy the spoils at the top indefinitely.

[yycflyguy]

The issue is about to resolve itself without almost any regard for what you view as a sense of injustice. Why? Because the law is going to dictate the outcome. Age discrimination is illegal. Nothing related to our collective agreement is going to influence the Tribunal or the courts to treat Air Canada pilots as "a special case" when it comes to having to adapt to the legal realities.

I am fully aware of your argument regarding legality of discrimination. The narrow vision that "it's not about fairness, it's about law" is entrenched in your errant philosophy. The same generation that you are counting on to make a successful airline tick while collecting a full pension (+ however many years extra you feel entitled to take) are the same generation that will be sure to change how the collective pie is distributed. Like you said, Nothing related to our collective agreement is going to influence the Tribunal. This will be something that a pissed off majority of the membership will change amongst ourselves to ensure that the top seniority numbers stop bleeding the lower half of the membership.

I view V & K as new hires. Their imposed retirements were neither damaging nor did it impose undue suffering as the Tribunal indicated in their awarding (or lack of) damages. The fact that this was NOT a precedent setting case does not bode well for the next set of litigants that will have to argue the merits of their case without the Kangaroo courts decision. Far from the slam dunk, obvious reality you are exposing here.

So when the recently completed Judicial Review is released next year and states that the CHRT overstepped their jurisdiction and they quash the ruling, but AC has already re-instated V&K, what then?

So whine, complain, plead injustice all you want.

That, my friend, is a two way street. The difference between my whining and that of the flypast 60 crowd is that they had their chance to prepare for the future while mine is being taken away.

[Raymond Hall]

I view V & K as new hires.

That view, unfortunately, is a view not inconsistent with the view of many others, and serves as a pretty good illustration of why ACPA is in the situation that it is in.

It makes me wonder what the point is of even discussing facts and options that could possibly lead to a healthy, integrative outcome for all of us. Futile.

As Pogo said, "We have met the enemy and he is us."

http://en.wikipedia.org/wiki/Pogo_(comics)

[Mig29]

Gentlemen,

I do not decide what equipment I fly. I do not decide the seniority regime. I don't dictate pay scales. I don't dictate vacation assignments. I don't dictate monthly blocking. I don't dictate reserve rules. I don't dictate.....

If I was 50 I wouldn't be able to. If I was 60 I wouldn't be able to. If I was 70 I wouldn't be able to.

Why? Because all those things are decided through a democratic process for we which we all agreed to abide by, when we took the job. We all, everyone one of us, agreed to forego individual rights and instead agreed to subject ourselves to the will of the majority.

The term is called collective bargaining. The process is beneficial through the power a larger group brings.

Of course CBA's can't break the law in the process. If mandatory retirement is declared illegal it will be removed.

That does not mean however that individual rights all of a sudden trump the democratic process, or the intent and will, the collective made and agreed to (this includes you) in good faith To suggest such a thing would mean you are now advocating the termination of collective bargaining by having those collective rights trumped by individual rights.

The tribunal did not say any such thing. I have said this a few times. There is a line in the sand where human rights ends and collective bargaining rights begin. I don't know where the line is, only that there is a line.

I know Raymond doesn't agree with that opinion. He believes individual human rights trample collective bargaining rights. He believes human rights entitles him to a specific salary, position, title, vacation, monthly schedule, insurance and so on........

That position however is exactly why we should expect a long line of intervener's once this hits the Sup court. Not for or against a change to mandatory retirement. Rather opposition to an attempt to impose the will of individuals into the collective bargaining process for which we have all benefited.

I don't think you could have said that any better. If you actually read word by word what this man is saying, you just may understand the whole issue here. I say, may, because people are too blinded by their own agendas and needs to see all this.

+ 1

[bcflyer]

It makes me wonder what the point is of even discussing facts and options that could possibly lead to a healthy, integrative outcome for all of us.

Please enlighten us with your facts and options that could lead to a healthy integrative outcome for all of us. Of course when you say ALL of us I assume you mean ALL of the pilots at Air Canada, not just the ones at the top of the pile who chose not to retire like those before them.

I would dearly like to hear how you intend to have senior pilots stay for years longer without negatively affecting the progression of the junior pilots.

[HavaJava]

Don't even bother asking Ray that question! I've put that question out before and all the flypast60 group does is skirt it.

Frankly, there have been many workable ideas put forth by ACPA members but the flypast60 group won't work with any of them. They want it all and they won't settle for any sort of compromise. I hope that the Fed court and possibly the SC will see them for what they are and stop their gravy train of demands.