CIRB Dismisses Complaints Against ACPA

[yyz monkey]

http://cawidgets.morningstar.ca/Article ... ff&ads=off

[rudder]

Perhaps Ray or somebody in the know would care to explain why the CHRT has not provided decisions in cases where proceedings have been completed? There is no reason for the CHRT to take pause as the matter is not being dealt with at the bargaining table and the CIRB has now made its view on the representational issue quite clear. Please don't tell me that the CHRT is waiting for the new government to enact new legislation

[Raymond Hall]

http://cawidgets.morningstar.ca/Article ... ff&ads=off

The title of the ACPA Press Release is not accurate. The Board has not dismissed all of the complaints before it. It dismissed only the complaint filed last August on behalf of originally 67 pilots, later increased to 75 pilots.

The Board has not yet ruled on the complaint filed in March of this year regarding ACPA's refusal to file a grievance on behalf of the three pilot complainants whose termination of employment was pending in April and May.

[Raymond Hall]

Perhaps Ray or somebody in the know would care to explain why the CHRT has not provided decisions in cases where proceedings have been completed? There is no reason for the CHRT to take pause as the matter is not being dealt with at the bargaining table and the CIRB has now made its view on the representational issue quite clear. Please don't tell me that the CHRT is waiting for the new government to enact new legislation

The CHRT is a quasi-judicial body. It does not provide reasons or justifications for any delay in rendering its decisions. Nor can anyone "call up the judge" to ask why the decision has not been yet rendered. Similarly, there is no basis for any speculation whatsoever as to any purported reason for a delay in rendering the decision. It will come when it will come. The only person who truly knows why the decision has not yet been rendered is the person writing the decision.

The Tribunal is charged with the responsibility of rendering its decisions on the basis of the evidence and law before it at the hearing. Any consideration of extraneous outside matters by the Tribunal in the result would be reviewable by a court, and is therefore not likely to play a factor in the timing of the release of the decision.

[accumulous]

From ACPA:

"This decision reconfirms our belief that we are on solid ground in our approach to the age of retirement issue," Captain Strachan said. "We believe our members' have the right to negotiate a common age of retirement through collective bargaining and we remain confident that we will overcome any legal attack on our rights."

Does ACPA’s ‘solid ground’ conclusion take into account the present reinstatement of retired pilots already having occurred, the recent Federal Court Ruling, and Parliament’s Budgetary promise to eliminate Mandatory Retirement in the Federally regulated sector? Isn’t that tract of solid ground centered somewhere in the vicinity of Fukishima?

From the CIRB:

Until the law on this subject is clarified by human rights tribunals and/or the courts, the Board is reluctant to enter into the debate. Accordingly, the Board has decided to follow its established practice and declines to rule
on the third question.

Hasn’t that law now been clarified somewhat with regard to the subsequent DFR complaints? Isn't that recency of events now reflected in the decisions of the CAW and CUPE to consider the matter of forced retirement no longer legally enforceable to the extent that Mandatory Retirement of Air Canada CAW employees is now out the window via Arbitration?

Obviously ACPA's MOA was declared null and void, and Discrimination was indeed found to have occurred, so it seems the unfolding of events may be somewhat out of phase.

[SilentMajority]

"This decision reconfirms our belief that we are on solid ground in our approach to the age of retirement issue," Captain Strachan said.

If there was any hope that this Association still had a loose grip on reality and was worthy of it's members support....the above statement by ACPA's current President should be enough to completely dispel that notion.

[Morry Bund]

I don’t get it. Perhaps someone can explain to me how the behavior of the union was not discriminatory.

Section 37 of the Canada Labour Code says:

37. A trade union or representative of a trade union that is the bargaining agent for a bargaining unit shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit with respect to their rights under the collective agreement that is applicable to them.

Then the Board says:

[47] It was not discriminatory for the union to determine that the complainants were not entitled, by the terms of the collective agreement, to be treated differently than any other pilot in the bargaining unit with respect to the age of retirement.

[48] Furthermore, a union is not obliged to accept an employee's interpretation of a collective agreement provision or agree with an employee's challenge to a provision of the collective agreement. All that the Board requires, when an employee alleges that he or she has a right grounded in a human rights statute that conflicts with a provision of the collective agreement, is that the union consider the claim seriously.

But in 2009 the Tribunal said that the termination of Vilven and Kelly’s employment violated the Canadian Human Rights Act by reason of the fact that the mandatory retirement provision was of no force and effect. Then in February of this year, the Federal Court upheld that determination, finding that the mandatory retirement exemption in the Canadian Human Rights Act violated the Charter and thus was of no force and effect. The result is that the Federal Court has determined that the mandatory retirement provision of the collective agreement is not valid.

On the first point, the CIRB knew of both of these decisions. So how could it possibly say that the complainants in this case were seeking to be treated differently than any other pilot in the bargaining unit with respect to the age of retirement? They weren’t. They were saying that the union had no right to support the employer’s termination of their employment when that termination of employment violates the law by constituting age discrimination. How could the Board possibly say that the union’s refusal to fairly represent the complainants with respect to age discrimination is not discriminatory?

On the second point, granted, the Board is not obliged to accept an employee’s interpretation of a collective agreement provision or agree with an employee’s challenge to a provision of the collective agreement. But is the Board not obliged to accept the Tribunal’s interpretation of the collective agreement. Is the Board not bound in law to accept the Federal Court’s interpretation of a collective agreement provision, especially when the union doesn't? As I understand it, the Federal Court interpretation of the law is now the law. That's why the other unions filed grievances on behalf of their members, took them to arbitration, and had them immediately reinstated, pending the final outcome of the VK decision before the Courts.

I must be missing something here.

[Rockie]

That does seem rather odd. The CHRT, who has sole discretion in determining these matters, says mandatory retirement is discriminatory and the Federal Court backs them up. So too does every legislative jurisdiction in Canada including the Federal Government when they table their budget at the end of the month.

But somehow the CIRB says ACPA is not being discriminatory by fighting to force people to retire. Serious disconnect there.

To any reasonable person ACPA's continuing insistence to pursue this course in the face of universal (except strangely enough the CIRB) condemnation of forced retirement as discriminatory seems entirely in bad faith as well.

[Inceptive]

From a junior member, it was nice to read this decision.

MP's have now been made aware, of the detrement bill C481
would have posed to the younger ranks in our working society..

Next time, a bill such as this will not pass so easily (not to say it wont) without some
serious regard to the younger generations it would negatively affect!

[Rockie]

I guess you haven't heard, probably because ACPA hasn't told you. But just before they were defeated the Conservatives tabled a budget that included legislation to abolish mandatory retirement for federally regulated employees. Now that they're back (with a majority this time) they have announced their intention to re-table the same budget at the end of May.

If I were you I would be much more worried about what ACPA's strategy this past five years is going to cost you in terms of delayed preparation and real dollars in reimbursed lost salary for the 150+ people with complaints at the CHRT. Something else ACPA hasn't told you.

[Inceptive]

Rockie,

Please re read my post..

I do understand what is about to be brought about again.

As I posted, the only difference this time may be that more MP's are opposed, as some
have now educated themselves with the other side of the coin!

Please don't worry about, what you would worry about, if you were me!
It's not even remotely required..

Thanks for your consideration though!

[Rockie]

Inceptive

This is not a private members bill. This is the budget, and Conservative MP's are going to vote for it even if it makes their skin crawl and blisters erupt on their tongue. The Conservatives have a majority.

Does that tell you something?

[Inceptive]

If I were you I would be much more worried about what ACPA's strategy this past five years is going to cost you in terms of delayed preparation and real dollars in reimbursed lost salary for the 150+ people with complaints at the CHRT. Something else ACPA hasn't told you.

Rockie,

The past five years is "AT THIS TIME" irrelevant! Those, such as yourself who are fighting for the years to come, will
have a "breath of fresh air" if that legislation comes to pass.
Those who were waiting around for a pay out, may be disappointed!
Mr. Hall may appeal this, but until said point in time... Your past five years of injustice, has been ruled as acceptable!
If Mr. Hall has been doing this pro bono, then you will still find 150 pilots among his group.. If not, I'm sure that many
may stop making payments at this time.

Don't know what may come tomorrow, and won't lose sleep worrying about it!

[MackTheKnife]

From a junior member, it was nice to read this decision.

MP's have now been made aware, of the detrement bill C481
would have posed to the younger ranks in our working society..

Next time, a bill such as this will not pass so easily (not to say it wont) without some
serious regard to the younger generations it would negatively affect!

Hate to tell you this but the bill had UNANIMOUS consent from ALL parties on the required 2nd reading and then was sent before a parliamentary committee and given final approval with a few minor changes just prior to the election.

Now, for some mysterious reason you think that enough members are suddenly going to change their minds, let alone their parties official position on the matter, because a few Air Canada pilots made some phone calls ?? Hilarious !!

In the time interval from pre to post election, absolutely nothing has changed in the debate for or against the forced retirement at the Federal Level.

It's a done deal so start wrapping your mind around the concept and start asking your union what the TRUE costs were to fight a known losing battle from day one.

[accumulous]

It's a done deal so start wrapping your mind around the concept and start asking your union what the TRUE costs were to fight a known losing battle from day one.

Not only was it unanimous with all MP's voting in favor, regardless of affiliation, but our own Cameo Appearance sliding down the rope ladder from the Hindenburg just long enough to tell Parliament and the Country of Canada that we're overpaid went over like the lead balloon we landed in. AKA the TA.

[Inceptive]

[quote="MackTheKnife] Hate to tell you this but the bill had UNANIMOUS consent from ALL parties on the required 2nd reading and then was sent before a parliamentary committee and given final approval with a few minor changes just prior to the election.

Now, for some mysterious reason you think that enough members are suddenly going to change their minds, let alone their parties official position on the matter, because a few Air Canada pilots made some phone calls ?? Hilarious !!
[/quote]

Mac,

I have never stated that changes "will" occur.. You're sounding like a wounded cornered racoon..

If the changes do come about, even tomorrow, are they going to make them retroactive for 5, 10, 25, 100 years..

Or do you think that they may be implemented at said point in time?

This could very well be, 6 months from now, 1 year, 2 years..

Not mine to say.. But if you think that this is only Air Canada related... Guess again!

[accumulous]

If the changes do come about, even tomorrow, are they going to make them retroactive for 5, 10, 25, 100 years..

No, the changes when Mandatory Retirement in the Federally Regulated Sector, which includes Air Canada, are invoked, there will likely be a delay of anywhere from 6 months to a year before they take effect and it doesn't seem they would be retroactive.

Force retired pilots are for now still required to file with the CHRC, and those cases are set up as of their date of forced retirement. The cases seem to have been grouped in units of about 10 or more pilots to expedite processing, and groupings of those units are forwarded to the Tribunal for adjudication.

It seems that once Mandatory Retirement is officially deleted from the records, then pilots and all other employees at AC can elect to just continue working, much like all the Air Canada CAW employees can do now as per the arbitration award of just a few weeks ago.

It's all happening in different ways depending on where you focus your startled gaze, but happening it is. If your Union Officials weren't so preoccupied doing a deal to chop the Airline in half, they would likely have the time to keep you up to date on all that stuff.

[morefun]

ACPA and the company may be chopping up the airline into two units but at least with the TA some 500 pilots will still have a job. If voted down ( it's OK with me, I don't have to go to LCC ) then we will have a smaller airline, so knock yourself out....!

[Inceptive]

ACPA and the company may be chopping up the airline into two units but at least with the TA some 500 pilots will still have a job. If voted down ( it's OK with me, I don't have to go to LCC ) then we will have a smaller airline, so knock yourself out....!

Don't understand what you're saying! If voted down, there will be no agreements on LCC and more talks and LOU's to be
completed before it's implementation..
500 pilots still have jobs? You sound like ACPA now!
To think that saying NO, and having proper verbiage and working conditions written into the contract is not proper, you must be a shareholder or management!

[morefun]

I'm not ACPA or management and I'm not a Strackan lackey like you, it is just my opinion if you don't like it tough shit

[Inceptive]

I'm not ACPA or management and I'm not a Strackan lackey like you, it is just my opinion if you don't like it tough shit

Hey, relax..

Just curious where your numbers on job losses comes from, and very proud that you won't be at LCC. Good for you!

Strackan lackey?

[morefun]

I guess the point I was trying to make is the last time ACPA went on strike they ended up with a pair of shoes for their effort , this time we might get an extra shirt, just something to think about is all

[Rockie]

I guess the point I was trying to make is the last time ACPA went on strike they ended up with a pair of shoes for their effort ,

Agreed.

In your opinion is that justification for giving up any aspirations for maintaining working conditions (never mind improving them)?

[Inceptive]

I guess the point I was trying to make is the last time ACPA went on strike they ended up with a pair of shoes for their effort , this time we might get an extra shirt, just something to think about is all

MoreFun,

It is each individuals right to vote Yes or No.. A No vote does not equal a strike..
Jazz runs Thomas Cook under their working conditions, so why should CARs be ours..
You heard nothing of WestJet's working conditions in the roadshows, for they far surpass what is
being offered to us!

An LCC does not mean bottom barrel for us, for look at SouthWest and those who are successful at
the LCC game!

Let the Flight Attendants, Ticket Agents, and Ground personnel stake their claim, before you give up yours!

[Raymond Hall]

Although this thread should be restricted to matters related to the CIRB decision, I will use it to provide a road map to the undergoing legal proceedings before the Tribunal. I will deal with the CIRB issues in a later post.

What is the status of the issues before the Tribunal and the courts?

1. V-K is currently before the Federal Court of Appeal, by reason of ACPA’s appeal of the JR decision of the Federal Court issued on February 3rd. In my view, there is a very high likelihood that regardless of the outcome of that decision, the issue will go to the Supreme Court of Canada next year. A couple of qualifications: first, the loser of the FCA decision must file for leave to appeal. Second, the SCC must grant the leave. A second portion of the Federal Court decision referred to the Tribunal (DFR) on V-K alone. All parties to that dispute have asked the Tribunal to delay re-hearing that issue until after the Thwaites decision is rendered.

Air Canada has filed applications for judicial review of the Tribunal's remedy decision. That applications deals with the issue of mitigations of damages. V&K have both filed similar judicial review applications involving two issues, pension accrual and Cease and Desist. We are awaiting a hearing date for this matter.

2. The Thwaites hearing closed January 21, 2010. The decision that is to be rendered from that hearing has still not been rendered, almost 16 months later. There are two issues in that proceeding. The first one is the issue of the normal age of retirement (does Air Canada meet the requirements of Paragraph 15(1)(c) of the Canadian Human Rights Act? The second issue is BFOR. Will reinstatement of pilots cause Air Canada undue hardship by reason of its alleged inability to schedule pilots in international operations, given the Over-Under Rule. There are 70 pilots in the Thwaites proceeding, which I shall refer to as Case #2.

3. Case #3. The third set of pilot complaints to be dealt with by the Tribunal is comprised of 47 pilots. That case is in the disclosure phase. By agreement of all parties, that case has been split into two phases, as were the two previous cases, liability and remedy. The Tribunal has not yet ruled on the splitting of the case into the two phases, but that ruling should arrive soon, given that all parties have agreed to the split.

All parties have disclosed their legal arguments with respect to case. The Coalition complainants have filed two separate motions following upon the filing by Air Canada and ACPA of their respective Statements of Particulars, each of which is seeking to strike out portions of ACPA’s and Air Canada’s Statements. The argument of these motions (in writing) has not yet been ordered by the Tribunal, and consequently the Tribunal has yet to rule on either of these motions.

4. There are currently four additional sets of complainants referred to the Tribunal for adjudication, with a fifth set scheduled to be referred at the end of this month. Case #4 has 2 pilots; Case #5 has 7 pilots, Case #6 has 8 pilots, and Case #7 has 9 pilots. Case #8, the one that has not yet been referred, has 6 pilots. There is one additional pilot whose case has been included in the above, but I have not been informed which grouping he is assigned.

In total, then, after Thwaites, there are 80 new pilots complaints either before the Tribunal or on the point of being referred to the Tribunal. In addition to those, there are at least another 10 pilot complainants at the Commission level. Total pilot complainants, as of today, to my knowledge, then, 163, including V-K.

5. The Tribunal, the Commission, Air Canada and ACPA are currently in discussions regarding the merging of several of these groups of cases for the purpose of holding joint hearings. However, the merging will likely not occur prior to the resolution of the outstanding motions in Case #3. In addition, the complaints in Case #3 will likely be kept separate from the later complaints, as far as hearings are concerned, given that that case is already in the advanced disclosure stage.