Can the illegal acts still be condoned?

[Norwegianwood]

If we were a status-pay airline or single type fleet, with the employer assigning the flights and destinations, Air Canada would have allowed pilots flying past 60 a long time ago.

Soooooo if AC was a "status-pay airline or single type fleet" there would be no discrimination BUT because AC is not and has status pay and many types it is allowed to discriminate ?????

Excuse me but I am a little confused, please explain!!

[Rockie]

As it presently stands, Air Canada has a valid BFOR, not ACPA.

There's been two Air Canada pilot BFOR rulings so far from the CHRT.

One was done over a couple of days and did not follow or even acknowledge the existence of the Supreme Court mandated test for establishing BFOR.

The other one did.

Look them up and read them, then say again that Air Canada has a valid BFOR.

The only differentiation under Air Canada's Offer of settlement was that as opposed to flying to Hong Kong, they would now be flying to Portland, Oregon. They would still get keep their seniority with respect to other pilots on that equipment type as it pertains to selecting flights, layovers, days off, vacation, etc.Is that what the Act had in mind?

What the act defends is a person's right to be treated no differently than anyone else. Air Canada cannot restrict people from awards in accordance with what their seniority affords them. They can say they won't train them, but that's an economic decision based on time left to retirement and is not age related. In that case as you know the person still receives pay according to the position they can hold.

As you say, apples and oranges.

[Martin Tamme]

Excuse me but I am a little confused, please explain!!

The Offer of Settlement was not discriminatory.

[Rotten Apple #1]

Martin, perhaps you should not frame your argument in terms of being an outsider.

[Rockie]

[quote="Martin Tamme]The Offer of Settlement was not discriminatory.[/quote]

Says you.

So far Air Canada pilots and their union have proven to be very poor judges of what constitutes discrimination and what doesn't.

[Raymond Hall]

You guys are still talking about ACPA here. ACPA is no longer in the driver's seat... It's Air Canada, and that's the entity you are going to have to deal with on a forward-going basis. As it presently stands, Air Canada has a valid BFOR, not ACPA.

Martin:

I don't know if you are privy to any of the things going on inside that MEC, but may I suggest that you really could use a good briefing on the facts. For example, Friday, around 5 PM I received courier envelope from ACPA's lawyer which contained ACPA's reply to our third DFR complaint that we filed with the CIRB.

I was planning to leave with my family on vacation today, now that my son finished his last university exam of the semester and is free for the next two weeks. But due to fact that the CIRB requires that a reply be filed within ten days of receipt of the document (and given that it doesn't take a break over Christmas, as the Federal Court does), I had to delay our departure until tomorrow, so that I could spend the last two days replying to ACPA's assertion that it is entitled to plead a BFOR defence.

Just finished, and the reply will go out by courier tomorrow morning.

Enough for stories out of school. Suffice it to say in response to your earlier question, "What other conditions in the offer to settle?" I would love to tell you but I can't, under the conditions in which the offer was presented. Take my word for it please. It was the whole package that was offered and it was the whole package that was rejected.

[Martin Tamme]

Martin:

I don't know if you are privy to any of the things going on inside that MEC, but may I suggest that you really could use a good briefing on the facts.

No, I'm not privy to anything that goes on the inside anymore. I've been out for 4 years now. However, I don't understand. You filed a DFR against ACPA, and they replied to it. What does this have to do with the BFOR case? I thought the DFR was about ACPA not defending pilots' rights, and is a separate issue that deals with the CIRB and not the HRT or the Courts.

[Raymond Hall]

I don't understand. You filed a DFR against ACPA, and they replied to it. What does this have to do with the BFOR case? I thought the DFR was about ACPA not defending pilots' rights, and is a separate issue that deals with the CIRB and not the HRT or the Courts.

I am not at liberty to discuss the substance of this case, as it is still before the Board. But you will recall the previous CIRB decision, 2011 CIRB LD 2560 released May 17, 2011, perhaps? That decision said that ACPA was not breaching its duty of fair representation because, in its words, at Page 6 of the decision:

"Consequently, at the time that ACPA refused to process the complainants' grievances, the question of whether being under age 60 is a bona fide occupational requirement for pilots was still very much a live issue."

Well, guess what. The issue has not gone away.

[vic777]

You guys are still talking about ACPA here. ACPA is no longer in the driver's seat... It's Air Canada, and that's the entity you are going to have to deal with on a forward-going basis.
...
You have to understand that it's Air Canada that you are fighting from here on in, and also have to understand as to why Air Canada will fight this to the end.

That's fantastic news Martin. ACPA should get out of this right now then. ACPA should say, "We're giving up and will no longer be on the hook for half the court costs and damages". The fight will still be fought (and eventually lost), but ACPA can get out of their obligation to waste the members dues.

Seriously, if ACPA is out, then they're crazy to continue paying costs, right?
Or will AC drop it like a hot potato if ACPA cannot be relied on to deplete their war chest?

[Norwegianwood]

Soooooo if AC was a "status-pay airline or single type fleet" there would be no discrimination BUT because AC is not and has status pay and many types it is allowed to discriminate ?????

Excuse me but I am a little confused, please explain!![/quote]


MT wrote "The Offer of Settlement was not discriminatory"??

This is what you wrote before....

If we were a status-pay airline or single type fleet, with the employer assigning the flights and destinations, Air Canada would have allowed pilots flying past 60 a long time ago.

MT please explain why discrimination is ok as AC has a mixed fleet and status pay and not a WJ fleet as you have inferred.

Inquiring minds need to know??

[Rockie]

Raymond Hall is the only source of information backed by any kind of expertise. Certainly ACPA provides nothing, and the knowledge level of the pilots is a testament to that fact.

Who are Air Canada pilots going to blame when they realize Raymond Hall was right and they never listened to him?

[Johnny Mapleleaf]

So what does Air Canada do? They present an offer of settlement that would ensure that their interests, not position, are adequately protected: The timeframe associated with replacing a pilot. Although the offer was only extended to George Vilven & Neil Kelly, they would have extended it to anyone else who decided they wanted to remain. They offered the plaintiffs a deal which would see no loss in income, receive the same amount hours of work every month, and most probably receive the same amount of time off during the month.

The plaintiffs refused. To an outsider, it becomes apparent that to these plaintiffs, the issue is not about the right to continue flying past 60; rather it is about the right to determine the associated working conditions, which is a right that is enshrined within a Collective Agreement and not the Human Rights Act. Let's face it, this fight is not about allowing pilots to work past 60; rather it is about allowing pilots past 60 to fly a widebody overseas. Seniority, or working conditions associated with seniority, is not a Human Rights issue. Seniority (and all the benefits associated with it) is a clause -like all other articles- enshrined within a Collective Agreement; an agreement between an employer and a union.

Go tell the Negroes or the East Indians or the Jews that you are going to pay them the wages that they are entitled to, but that they are not allowed to occupy front-line positions or been seen in public working for your company, because of your collective agreement that reserves those rights for WASPs. See how far your theory of the primacy of the collective agreement gets you.

[Martin Tamme]

Go tell the Negroes or the East Indians or the Jews that you are going to pay them the wages that they are entitled to, but that they are not allowed to occupy front-line positions or been seen in public working for your company, because of your collective agreement that reserves those rights for WASPs. See how far your theory of the primacy of the collective agreement gets you.

Go tell your newhire pilot that he will only me making $37,000 a year, but will be making more when he gets older. The amount he receives has nothing to do with his skillset or experience; rather it has to do with the seniority (e.g A 12th year A320 F/O making more than a 3rd year). Nevertheless, you can only accrue seniority by getting older; ergo, he is being discriminated against based on his age.

Go tell Transport Canada that the fact you have to do a Medical every 6 months as opposed to 12 once you turn 40 is a discriminatory practice. 40 is an arbitrary number; there is no evidence to suggest that 40 is any different than 39 or 41.

Go tell your car insurance company that you are being discriminated on the basis of your sexe and age, because as a male driver you pay more than females, and being younger, you pay more than older drivers (has nothing to do with driving experience).

I can go and on about the inconsistencies that we live under that could form a basis of discrimination. I agree that had Air Canada mandated that all 60+ pilots accept a position that either pays less and/or with worse working conditions that they are presently working under, it would constitute a form of discrmination. However, although I'm not privy to the exact details of the Offer of Settlement, on it's surface it would appear that Air Canada had resolved the age discrimination issue, while at the same time mitigating it's planning/replacement problems.

Seniority is not a Human Rights issue. Yes, one does accrue more seniority as one ages; however, it is one's seniority that entitles one to better benefits, not one's age. If no changes are made to the benefit package when one turns 60, is it discrimination? Again by benefit package, I mean as it pertains to one's right to work, income, responsibility and working conditions (number of hours worked & days off). Getting to fly to Hong Kong as opposed to Portland may be a perk, but is not a right.

[Rockie]

Go tell your newhire pilot that he will only me making $37,000 a year, but will be making more when he gets older.

That's one of the many issues that needs to be addressed even more as a result of this change, and I plus many others have been trying to get the pilots to think along those lines. So far the pilots have refused. That is entirely within our power to change.

Seniority is not a Human Rights issue.

It is if you deny seniority rights to someone strictly because of their age. Come on Martin, smarten up.

[Norwegianwood]

Go tell the Negroes or the East Indians or the Jews that you are going to pay them the wages that they are entitled to, but that they are not allowed to occupy front-line positions or been seen in public working for your company, because of your collective agreement that reserves those rights for WASPs. See how far your theory of the primacy of the collective agreement gets you.

Go tell your newhire pilot that he will only me making $37,000 a year, but will be making more when he gets older. The amount he receives has nothing to do with his skillset or experience; rather it has to do with the seniority. Nevertheless, you can only accrue seniority by getting older; ergo, he is being discriminated against based on his age.

Go tell Transport Canada that the fact you have to do a Medical every 6 months as opposed to 12 once you turn 40 is a discriminatory practice. 40 is an arbitrary number; there is no evidence to suggest that 40 is any different than 39 or 41.

Go tell your car insurance company that you are being discriminated on the basis of your sexe and age, because as a male driver you pay more than females, and being younger, you pay more than older drivers (has nothing to do with driving experience).

I can go and on about the inconsistencies that we live under that could form a basis of discrimination. I agree that had Air Canada mandated that all 60+ pilots accept a position that either pays less and/or with worse working conditions that they are presently working under, it would constitute a form of discrmination. However, although I'm not privy to the exact details of the Offer of Settlement, on it's surface it would appear that Air Canada had resolved the age discrimination issue, while at the same time mitigating it's planning/replacement problems.

Seniority is not a Human Rights issue. Yes, one does accrue more seniority as one ages; however, it is one's seniority that entitles one to better benefits, not one's age. If no changes are made to the benefit package when one turns 60, is it discrimination? Again by benefit package, I mean as it pertains to one's right to work, income, responsibility and working conditions (number of hours worked & days off). Getting to fly to Hong Kong as opposed to Portland may be a perk, but is not a right.

Ah now I get it, it's all about entitlement!

[Martin Tamme]

Ah now I get it, it's all about entitlement!

Yes as it presently stands, seniority as it pertains to our Collective Agreement is about entitlement. At Westjet, they don't use our type of seniority system. Although a Westjet pilot may request a certain layover, the Company reserves the right to give it to someone more junior. Seniority and the benefits associated with it are achieved through bargaining; they are not found in a Human Rights Act.

[Rockie]

Ok Martin.

Everybody will get paid the position they could hold according to seniority, however...

Blacks can only fly right seat 767. Hindu's can only fly the 320. White males under 60 have to fly either the 330 or 777. Women can fly the EMJ or 320, but can't be left seat in any airplane. And pilots over 60 have to be right seat EMJ.

Now, I know you and many others don't consider age discrimination as real, but Canadian law does. Sooner or later Air Canada pilots are going to have to wrap their feeble minds around that concept and get with the times.

[klacker]

Ok Martin.

Everybody will get paid the position they could hold according to seniority, however...

Blacks can only fly right seat 767. Hindu's can only fly the 320. White males under 60 have to fly either the 330 or 777. Women can fly the EMJ or 320, but can't be left seat in any airplane. And pilots over 60 have to be right seat EMJ.

Now, I know you and many others don't consider age discrimination as real, but Canadian law does. Sooner or later Air Canada pilots are going to have to wrap their feeble minds around that concept and get with the times.

Well said....but I'm sure MT won't get this either. Apparently Martin has acquired some divine right to decide who is "entitled" by seniority and who is not. Would like to know to what equipment, status and routes MT thinks he is currently entitled.

Like another poster said "it's all about entitlement". It's the ME/NOW generation.

[Martin Tamme]

BTW, since John Swallow piped in here, I might as well give another example. John & I previously worked at Air Atlantic. At the time, Air Atlantic had 3 aircraft types; namely, the BA-146, the Jetstream 41 and the Dash-8. The J41 and DH8 paid the same; however, the flying was completely different. Personally, I believe that the DH-8 had the better flying/destinations. Nevertheless, the Company just assigned pilots to the equipment: My class all got the Dash, while the next one got the Jetstream.

Let's assume that Air Atlantic had the same issues pertaining to Age 60+ as Air Canada presently does, and that pilots issued formal complaints that they were being discriminated against by being terminated based on their age. Let's assume that I am a Dash-8 pilot and am about to hit 60; however, the Company acknowleges my complaint and allows me to stay past 60... but with the caveat that I become a Jetstream pilot.

Is this really discrimination? My right to work doesn't change. My income doesn't change. My seniority on the equipment doesn't change. My number of work hours doesn't change. The number of days off doesn't change. The only difference is that I now have to fly routes which I find undesirable. Nevertheless, another pilot may argue that this is the better flying. Am I being discriminated against, because I can't choose the equipment? The only difference between Air Canada and Air Atlantic is that the rights found in a Collective Agreement, not in the Human Rights Act or in a Labour Code, allowed me to request the specific aircraft type.

[Johnny Mapleleaf]

Getting to fly to Hong Kong as opposed to Portland may be a perk, but is not a right. ... Seniority and the benefits associated with it are achieved through bargaining; they are not found in a Human Rights Act.

Oh, but yes they are. You just don’t see them because you are still wearing your blinders. Just try making any of those constraints dependent on age and you are in no different of a situation than if you define them on the basis of race, sex or religion or any other of the restricted grounds in the statute. They were there in that failed tentative agreement for Vilven and Kelly and you did not see them then, though they were staring you right in the face.

They were right there in Section 10 of the Human Rights Act.

[Martin Tamme]

Blacks can only fly right seat 767. Hindu's can only fly the 320. White males under 60 have to fly either the 330 or 777. Women can fly the EMJ or 320, but can't be left seat in any airplane. And pilots over 60 have to be right seat EMJ.

Ok. I just flew with a Captain who was part of the 243 that was laid off in 1992/93. During his furlough, he went to work for a Middle-Eastern airline based in Qatar. Most of the other ex-pats were mostly Americans. His flying was mostly to Iranian cities; whereas the Americans were prohibited from flying to Iran. While he was mostly doing Tehran layovers, his American counterparts got to enjoy the beaches of the Greek Isles. Is this not a form of discrimination based on one's nationality? No, it is not if there is a Bona Fide Occupational Requirement.

This brings me back to Air Canada's argument. If they can't properly operate their flights without creating undue financial hardship, it becomes a defence to a Bona Fide Occupational Requirement. So yes, if a pilot plans to remain past 60, and the Company can't determine when he envisions on leaving, the Company has the right to mitigate the consequences of the day when he does decide to leave. In other words, place him on an airplane where he can easily be replaced with when he decides to leave; the Company would have no case for a BFOR if they were able fill the B777 seat with a newhire, but alas, our seniority-based system will not allow that.

[accumulous]

The above gives you an inkling of just how far out to lunch the splinter group junior to middling seniority types are who continue their quest to capture the seniority list.

In the original bogus ‘Survey’, 1701, by far the majority of pilots, didn’t vote, or were dead set against these ne'er-do-wells' quest for the Holy Grail.

What’s needed is a legal Petition.

1701 pilots are on the verge of picking up the tab for a bunch of misguided types who intend to use each and every pilot’s fiscal resources to move ahead of, or eliminate those very pilots.

1701 pilots really need to retain the services of a lawyer to look at any and all possible ways of not sharing in the ridiculous load of liability that this splinter group of junior rocket scientists is attempting to unleash on the collective whole.

If the Queue Jumping Squadron wants to live in court, and die in court, let them pay the cost of the funeral in court all by themselves.

1701 pilots need to say enough is enough, and cut the little splinter group loose to sink on its own.

If there is a legal way to not have to share in the huge liability of this grossly misguided undertaking, it should be commenced now because there will need to be enough lead time to get it all in place before the sky falls in on these guys.

1701 innocent bystanders do not need to be there to pick up the pieces.

[Raymond Hall]

This brings me back to Air Canada's argument. If they can't properly operate their flights without creating undue financial hardship, it becomes a defence to a Bona Fide Occupational Requirement. So yes, if a pilot plans to remain past 60, and the Company can't determine when he envisions on leaving, the Company has the right to mitigate the consequences of the day when he does decide to leave. In other words, place him on an airplane where he can easily be replaced with when he decides to leave; the Company would have no case for a BFOR if they were able fill the B777 seat with a newhire, but alas, our seniority-based system will not allow that.

Martin: Did you not read my reply to your suggestion on this, on Page 2 of this thread? The Court considered this point and rejected it. Case closed on that point.

Regarding any age-based positioning of pilots, have a read through what the statute actually says, and adjust your thinking on the basis of what it actually says instead of what you think it should say:

10. It is a discriminatory practice for an employer, employee organization or employer organization
(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship,
transfer or any other matter relating to employment or prospective employment,
that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a
prohibited ground of discrimination.

Get over it. You can't decide pilot positioning on the basis of age. Period. That was obviously one of the issues front and center in the consideration of the Vilven-Kelly offer made by Air Canada and ACPA. The proposal was a direct violation of the statutory provision, regardless of whether you think it was fair or not.

Accepting that proposal would have been tantamount to acquiescing to an age-based two-tier contract. Even if they had have accepted it, it would have been doomed because someone else would have challenged it. You cannot have a collective agreement provision that distinguishes among members on the basis of a prohibited ground of discrimination, be it age, sex, religion or whatever.

[Rockie]

This is now beyond embarrassing because Martin's opinion is by no means unique among Air Canada pilots. In fact what's worse is he's one of the more informed ones. We are doomed to suffer the humiliating spectacle of a judge talking down to professional pilots as if they were children. And as a group we richly deserve it.

[Ah_yeah]

I'm just curious, how does Air Canada get away with language requirements and blocking. Ie. more senior flight attendants that lack a route language (not a legal requirement but a competitve one) are prevented from flying certain routes when they are available to newbies that are fluent ? Same job, same pay, same bennies different route for business purposes.
BTW, I'm not about to place a bet on the outcome of this...but based on the current gov'ts handling of the essential service they think we are, I wouldn't be surprised if there is an unexpected compromise forced upon the parties.