Ah_yeah wrote: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 ?
Well, if you're flying a plane load of Chinese people it makes a certain amount of sense to have Chinese speaking crew members on board don't you think? If someone thinks they're being unfairly treated because of their race in this case they're welcome to file a complaint and see how it turns out.
Ah_yeah wrote: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.
I'm curious what similarities you find between labour disputes and human rights legislation?
Raymond Hall wrote: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.
Hey Ray:
Your last statement had me looking through our current Collective Agreement, because I could have sworn that we had age related clauses. Then it occured to me that we had a clause inserted during your tenure as MEC Chair that may be construed as age discrimination. Namely Article 26.04.10.09 pertaining to the RCA.
In a nutshell, Air Canada is to deposit $33.5 Million into the individual accounts of pilots were ages 50 years and older on April 2nd, 2000. As such, if you turned 50 in May, you were screwed. This is not based on one's seniority; rather it is strickly an age thing, regardless of the amount of time one has put in. Is this not a form of age discrimination that was negotiated during your tenure as MEC Chair?
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.[/quote]
Martin:
An honest question for you here. Under your vision of how "Flying Past 60" should work.....
Let's say there is a 777 Captain who is about to turn 60 tomorrow. This individual has advised the company that he intends to stay on past age 60 and has agreed to be bound by the 12 months (or whatever) notice for his eventual retirement. He has been with the company for 33 1/2 yrs. and needs another 18 months to top up his pension.
Where should he go the next day? Should he be required to leave the 777? Perhaps he should move onto the EMB as an F/O? What do you think?
Rockie wrote: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.
Yes and I am also one of those who has a better understanding of the laws. For example, damages may only be applied against ACPA, not the individual pilots who are members of ACPA. As such, if damages are to be paid out, and ACPA doesn't have the funds to cover it, the plaintiffs cannot go after the individual members to retrieve the sums owed. Any statements to the contrary is only fear mongering hoping that individual pilots would apply pressure onto the ACPA elected officials to settle.
Nevertheless, as I have previously stated, ACPA is no longer in the driver's seat; it has no more leverage. If a deal is to be made, it has to be made with Air Canada. Individual pilots have no say in those affairs.
SilentMajority wrote:
Where should he go the next day? Should he be required to leave the 777? Perhaps he should move onto the EMB as an F/O? What do you think?
I honestly don't know. It's Air Canada who has the case for the BFOR, not me nor any other pilot. As such, he should go wherever Air Canada needs him to ensure he causes the minimal amount of undue financial hardship. The problem is that we have a seniority system take complicates the matter to wherever the Company wants to place him. As such, it would be easier to place him into a spot that has an opening on an equipment bid. At the present time, those positions happen to be A320 & EMJ F/Os, as well as the RP positions.
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SilentMajority wrote:He has been with the company for 33 1/2 yrs. and needs another 18 months to top up his pension.
Before I forget, we should negotiate an amendment to the pension clauses to ensure that a top up is achieved after 30 years of service. With pilots presently being hired much later on in life, hardly any of the newhires will attain the 35-year threshold. It's time to bring that threshold down to meet reality.
If, it takes 300k to train any pilot, then where is the win, to take a CA777, FO777, or RP777 or the same on A330, or the B767, or A320, and take that pilot, at age 60, and place him/her, into a bottom of the list aircraft position? Where is the win for the company. They have to pay all the various moves, that will result, from moving the top end of the list to the bottom. The entire fleet will have training driven into it, for all the various moves. It will cost millions per month, and the co is not going to do it. I just cant see your logic on getting this issue to reality. Think about all the movements, that would not be required, if the pilot just stays in his/her position. The co is going to win big time, and acpa is going to blow their chances at getting something for the junior, mid, and heaven forbid, the senior pilot.
The junior pilots, and the narrow body pilots need to be protected, and they need to get the lions share of any savings, that is a no brainer. But dont try to screw the senior pilot into a junior rated position. It wont happen, as the CHR does not allow discrimination of a returing employee. Please.....read the actual act. It states that anyone, must be reinstated to their position, pay, place of employement, etc. etc. It is out of EVERYONES controll, now, that AC and acpa have played this game to the limit. That is over. The courts will decide, based on the laws of the land.
We need to all pull together, and get the best possible contract now, and make sure it helps the junior/mid/narrow pilot the most. The Federal Govermment has ruled on this, and no thrashing of anyone, is going to make a difference.
The next FCA, and the next CIRB ruling, based on the FC Feb 2011 ruling is going to set the course for the Dec 2012 arrival. That is regardless of which group wins.
The bulk of the FP60 pilots want to see stabiltiy, put into to TA-X negots. But, we dont have any say. Understand, that V/K could not accept any changes to the discrimination laws, that would just go to court, and get tossed out. That is what AC/acpa wanted, hoped for, as it would by them more time. It just did not work, for many many reasons.
The reinstatement of an employee is cast in stone in the HRA. It is not going to be changed by anyone before Dec 2012, or there after.
Martin Tamme wrote:Your last statement had me looking through our current Collective Agreement, because I could have sworn that we had age related clauses. Then it occured to me that we had a clause inserted during your tenure as MEC Chair that may be construed as age discrimination. Namely Article 26.04.10.09 pertaining to the RCA.
In a nutshell, Air Canada is to deposit $33.5 Million into the individual accounts of pilots were ages 50 years and older on April 2nd, 2000. As such, if you turned 50 in May, you were screwed. This is not based on one's seniority; rather it is strickly an age thing, regardless of the amount of time one has put in. Is this not a form of age discrimination that was negotiated during your tenure as MEC Chair?
No. All of the provisions related to insurances and pensions are specifically exempted by the Canadian Human Rights Benefits Regulations that were promulgated coincident with the enactment of the statute. They obviously need to be updated because they still use the numbering from the original incarnation of the statute of over 20 years ago. But the do exempt insurance, disability and pension plan benefits from the general prohibition against age discrimination. In fact, they currently allow for a total cut-off of disability payments at the "normal age of retirement."
SilentMajority wrote:Let's say there is a 777 Captain who is about to turn 60 tomorrow. This individual has advised the company that he intends to stay on past age 60 and has agreed to be bound by the 12 months (or whatever) notice for his eventual retirement. He has been with the company for 33 1/2 yrs. and needs another 18 months to top up his pension. Where should he go the next day?
I know that you did not ask me. However, I will answer the question anyway. He should go to work on the B777 just like he always did.
The BFOR issue is specious at best. Every single carrier in the world has been able to work around the ICAO constraints, and Air Canada can as well. All that it lacks is the motivation to make some minor adjustments in its scheduling operations and in its collective agreement to make it work. Non-issue. That's what the Tribunal said, and that's what the Court said.
Raymond Hall wrote:
No. All of the provisions related to insurances and pensions are specifically exempted by the Canadian Human Rights Benefits Regulations that were promulgated coincident with the enactment of the statute.
So in accordance with our present Collective Agreement, a pilot stops paying into the pension plan at Age 60 and has to start withdrawing from it. If Pension plans are exempted, does that mean allowing Age 60+ pilots to contribute to their pension plan (in order to top it up) would have to be a negotiated item? If that is true, then no pilot can top up his pension unless it is specifically negotiated, regardless of the amount of time he puts in past 60.
Martin Tamme wrote:...he should go wherever Air Canada needs him to ensure he causes the minimal amount of undue financial hardship.
Martin: I have a great deal of respect for the contribution that you have made to the Association over the past several years, and I certainly don't want to be too critical of your reasoning. But you really must do some more legal homework. You might try searching CANLII's human rights database for some of the cases on undue hardship.
There is no such thing as "minimal amount of undue financial hardship" in law. There is either "undue hardship" or there is no "undue hardship." Take a look at Justice Sopinka's words in Renaud, quoted in Meiorin. The SCC said that the term undue hardship means that Parliament intended that employers, in accommodating human rights needs, must be expected to endure some hardship.
More importantly, have a look at my BFOR Flowchart that is linked on the front page of the Fly Past 60 web site. I have presented that Flowchart at Law Conferences across the country, and it has been given great praise for setting out the issue in a very legible, understandable format.
You will see that accommodation and undue hardship, pursuant to the SCC tests, occur at Step 3 of the process. The point here is that the test is like a baseball game. If you don't get to first base, you don't get to second base and you certainly don't get to third base (Step 3) where accommodation and hardship are even considered. The Thwaites decision struck out ACPA's BFOR defence at first base. It didn't need to evaluate it at second base, but it did anyway, and struck it out there, too. It didn't need to evaluate it at third base. It did anyway, and struck it out there for a third time.
The Step 1 test requires "a work-related purpose rationally connected to the performance of the job." Hard to find that for F/O's and R/Ps, given that the ICAO restrictions apply only to pilots-in-command, and even then don’t require termination of employment, as the Federal Court duly noted. For Captains, it is a matter of degree, depending on the numbers. Even that is offset by the augment pilot presence. In any event, have a read of the Tribunal’s words in Paragraphs [342] to [345] of the Thwaites decision. Big problems for anyone to overcome that logic.
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Martin Tamme wrote:So in accordance with our present Collective Agreement, a pilot stops paying into the pension plan at Age 60 and has to start withdrawing from it. If Pension plans are exempted, does that mean allowing Age 60+ pilots to contribute to their pension plan (in order to top it up) would have to be a negotiated item? If that is true, then no pilot can top up his pension unless it is specifically negotiated, regardless of the amount of time he puts in past 60.
That's not what I said. I said they are exempt from the age restrictions, which means that unions and employers can design them to work, based on age, without running afoul of the general prohibitions against discrimination.
Is safety of no concern in a bona fide occupational requirement of a company such as Air Canada? Safety is the BFOR age 60 retirement basis of Fire Department's across our country. There are statistics of the depletion of cognitive ability with age, and those facts are not discriminatory when it comes to lives at hand. There is no way that pilots at the helm of airliners should have a 'right' to fly to an UNLIMITED age, especially in an enticing seniority environment such as Air Canada.
Companies like Air Canada cannot even provide an ounce of feedback to non-successful job applicants in fear of legal repercussions. If discrimination cards are going to be pulled harder and harder like this, what non-subjective system of courses and medicals could possibly dictate who MAY and who MAY NOT stay through their older years, without being 'discriminatory'?
Within BFOR, companies have the right to apply their own risk analysis. Airlines who have allowed their pilots to fly beyond the age of 60 have taken their own calculated risk considering the incentives they've put forward to stay. In the historical Air Canada system where the top dogs get to enjoy their long earned seniority positions, there is an extremely small percentage that have left prior to the age of 60. To remove any upper end safety limit in this environment is a hazard. If that concept is to be considered 'discriminatory' and it's really going that far, then by instantly dropping off an upper limit while maintaining a full seniority based system would definitely be 'discriminatory' in itself.
With a large structured system channeling employees in all phases of their career, Air Canada has had to 'grandfather' employees with such examples as the position group. With many scheduling and regulation complications and with everyone now calling 'discrimination' at every corner, there are obviously a lot of grounds for BFOR in an operational sense.
It's one thing for our government to implement a change in laws pertaining to employees in general jobs. It would be one thing if there was a movement of pilots who wanted to try and start changing the structure and terms of how pilots would enter a historical system. To hear of a small, specific group screaming discrimination for immediate change to a long standing rule only after reaping the benefits of the same rule, just really is poor news in our industry. Something like this would only force the pilot group to work to a much older age, while achieving pretty much the same result in the end. Is this particular group really that concerned for discrimination for the whole, or is it a convenient time to try to max out personal pensions?
You dont know much about other airlines around the world, and what they have decided to do. It would be a good idea to avail yourself, to what is happening, and has happened.
For instance, West Jet did their age 60 issue, in one month with the company and their pilot group, would you not fly on WJ because they go past 60?
Cathay Pacific spent contract capital, to get their retirement age moved to 65. Would you not fly on Cathay?
All the American carriers are at 65, would you not fly on them?
Many of the European carriers are past 60, would you fly on them?
The BFOR issue, is the protection that you are talking about. The Fire Fighters have this issue, due to the requirements of their specific job. The BFOR is applied to any and all situations, and the powers to be, have ruled that it is not a requirement at AC. (so far as the FC is concerned, maybe that will change, who knows) but right now that is the current thinking.
Who would you like to fly yourself and your family around the world, with the brand new pilot, or one that has more experience. The brand new pilot will gain experience from being on the job, with the more experienced pilot. there is no short cut, on how to gain experience. You dont get experience from playing Nintendo/Wii/Sony flying games.
The growing problems with AC pension shortfalls, pending changes to the pensions, for both active, and retired pilots, that is going to be made retroactive, and the rising cost of living without indexing in the pensions, as well as other reasons are just a few of the concerns that pilots are involved in this issue.
What airlines allow pilots fly to an unlimited age? What airlines allow pilots to fly to an unlimited age in a system where the upper end positions continually improve?
What concept of a firefighters job fulfills BFOR that an airline pilot's position doesn't? Physical abilities in relation to safety? Cognitive? To be devils advocate, sure there are 70 year olds in good shape, but how is the line drawn? Crewing structure is also rolled into the fire departments BFOR with a steady flow in line to be Captains and Chiefs, which directly impacts their hiring and training.
Martin Tamme wrote:
Yes and I am also one of those who has a better understanding of the laws. For example, damages may only be applied against ACPA, not the individual pilots who are members of ACPA. As such, if damages are to be paid out, and ACPA doesn't have the funds to cover it, the plaintiffs cannot go after the individual members to retrieve the sums owed. Any statements to the contrary is only fear mongering hoping that individual pilots would apply pressure onto the ACPA elected officials to settle.
Martin,
Using your logic, if the union is the accountable body versus the individuals, why are the Air Ontario group still actively sueing a specific group of INDIVIDUAL pilots over something the UNION MEC of the day decided? ( of which some of those same MEC members are the ones that are responsible for the present mess )
MTKo
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Cry me a river, build a bridge and get over it !!!
SilentMajority wrote:
Where should he go the next day? Should he be required to leave the 777? Perhaps he should move onto the EMB as an F/O? What do you think?
I honestly don't know. It's Air Canada who has the case for the BFOR, not me nor any other pilot. As such, he should go wherever Air Canada needs him to ensure he causes the minimal amount of undue financial hardship. The problem is that we have a seniority system take complicates the matter to wherever the Company wants to place him. As such, it would be easier to place him into a spot that has an opening on an equipment bid. At the present time, those positions happen to be A320 & EMJ F/Os, as well as the RP positions.
Martin,
Please stop confusing a Human Rights issue with a negotiated labor issue. You know as well as the rest of us that the beauty of a seniority system is that Everbody gets treated equally. Brown nosing will get you no where unless you are management goal oriented. Now I know that's difficult for some to get their heads around but that's what this fight has been all about since day one. All these other Red Herrings you keep throwing out have absolutely NOTHING to do with the matter at hand. The smoke screen you are trying to cloud the real issue with isn't washing. Discriminating against someone simply because one day they were 59 and the next they were 60 is now illegal ! Case closed ! Move On !
MTK
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Cry me a river, build a bridge and get over it !!!
SilentMajority wrote:He has been with the company for 33 1/2 yrs. and needs another 18 months to top up his pension.
Before I forget, we should negotiate an amendment to the pension clauses to ensure that a top up is achieved after 30 years of service. With pilots presently being hired much later on in life, hardly any of the newhires will attain the 35-year threshold. It's time to bring that threshold down to meet reality.
I can only guess your thinking of running for election again and looking for votes. While idealistically a great idea, it scares me to think that someone with your supposed smarts would even suggest a statement like the above. The union mentality of taking everything one can rob from an employer and give nothing in return just doesn't cut it in today's economic climate.
Air Canada can't afford it's half of the present 35 year threshold. How do you propose to fund a 30 year scenario without drastically reducing the pension benefit? ACPA already willingly threw indexation under the bus...are you now suggesting they trash the pension as well ?
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Cry me a river, build a bridge and get over it !!!
Wright wrote:Is safety of no concern in a bona fide occupational requirement of a company such as Air Canada? Safety is the BFOR age 60 retirement basis of Fire Department's across our country. There are statistics of the depletion of cognitive ability with age, and those facts are not discriminatory when it comes to lives at hand. There is no way that pilots at the helm of airliners should have a 'right' to fly to an UNLIMITED age, especially in an enticing seniority environment such as Air Canada.
Companies like Air Canada cannot even provide an ounce of feedback to non-successful job applicants in fear of legal repercussions. If discrimination cards are going to be pulled harder and harder like this, what non-subjective system of courses and medicals could possibly dictate who MAY and who MAY NOT stay through their older years, without being 'discriminatory'?
Within BFOR, companies have the right to apply their own risk analysis. Airlines who have allowed their pilots to fly beyond the age of 60 have taken their own calculated risk considering the incentives they've put forward to stay. In the historical Air Canada system where the top dogs get to enjoy their long earned seniority positions, there is an extremely small percentage that have left prior to the age of 60. To remove any upper end safety limit in this environment is a hazard. If that concept is to be considered 'discriminatory' and it's really going that far, then by instantly dropping off an upper limit while maintaining a full seniority based system would definitely be 'discriminatory' in itself.
With a large structured system channeling employees in all phases of their career, Air Canada has had to 'grandfather' employees with such examples as the position group. With many scheduling and regulation complications and with everyone now calling 'discrimination' at every corner, there are obviously a lot of grounds for BFOR in an operational sense.
It's one thing for our government to implement a change in laws pertaining to employees in general jobs. It would be one thing if there was a movement of pilots who wanted to try and start changing the structure and terms of how pilots would enter a historical system. To hear of a small, specific group screaming discrimination for immediate change to a long standing rule only after reaping the benefits of the same rule, just really is poor news in our industry. Something like this would only force the pilot group to work to a much older age, while achieving pretty much the same result in the end. Is this particular group really that concerned for discrimination for the whole, or is it a convenient time to try to max out personal pensions?
An interesting topic anyways!
AC passengers fly on flights crewed by pilots over age 60 all of the time and have been doing so for many, many years. These are flights that are codeshare (STAR) and Air Canada Express (Jazz/Georgian/Skyregional).
Any assertion that risk analysis based on age should be a factor that applies to mainline flights only is obviously misguided and self serving. AC is trying to defend status quo on behalf of ACPA for reasons that are clearly not related to whether pilots that are over the age of 60 are safe to transport AC passengers.
I'm thankful to finally see someone put in a different perspective on the entire issue... I was getting a little bored listening to the same old broken record, spinning and spinning around... spouting with the lyrics "human rights, human rights" from a tattered speaker.
Anything can be construed as a "human rights" issue if you try hard enough to argue the matter... and many of the examples you provided were excellent. I have had to laugh just a little to myself with the way that having to retire at 60 is being compared to being a person of colored descent, a Jew or some other "minority" group; It's just a little perplexing. I think a better comparison would be to describe the situation as one where when it was benificial for a person to act as inquisitor against a colored person, Jew or other minority, they were more than happy to do so for personal gain.... And then thirty years later, when it was beneficial to assume the role of being a colored person, Jew or minority, they were the first to scream out saying... "help me... Human rights, I'm a minority".
If you want to apply the law fairly, apply it starting in December of 2012, with all new hires entering the company. At least they know what they are signing up for, and at least they will have the credibility, professionalism and ethics not to slaughter there own children to hold on to a flying position for another five to eight years.
Martin Tamme wrote: For example, damages may only be applied against ACPA, not the individual pilots who are members of ACPA.
What happened to "We are ACPA"?
Martin Tamme wrote: As such, if damages are to be paid out, and ACPA doesn't have the funds to cover it, the plaintiffs cannot go after the individual members to retrieve the sums owed.
You may be right about plaintiffs being unable to go after individual pilots, I don't know. But ACPA is far from destitute because if rumours are correct they have a significant strike fund plus other routine operating assets (money that came out of individual pilot's pockets). And while plaintiffs may not go after individual pilots for the shortfall, ACPA can...and will. It's called a special assessment.
Unless you're advocating running away from legal liabilities senselessly accrued by our own irresponsible decisions? Were we to do that what right do we have as a group to expect any kind of respect?
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What_the? wrote:I'm thankful to finally see someone put in a different perspective on the entire issue... I was getting a little bored listening to the same old broken record, spinning and spinning around... spouting with the lyrics "human rights, human rights" from a tattered speaker.
Pssst...it's a human rights issue.
Refusing to acknowledge and treat it as such is why Air Canada and its pilots just got squashed. It's PeeWee Herman against Mike Tyson thinking he has a shot.
By the way, your forum name nicely foretells what most Air Canada pilots will be saying when ACPA finally bares the ugly truth.
Raymond Hall wrote:
The BFOR issue is specious at best. Every single carrier in the world has been able to work around the ICAO constraints, and Air Canada can as well. All that it lacks is the motivation to make some minor adjustments in its scheduling operations and in its collective agreement to make it work. Non-issue. That's what the Tribunal said, and that's what the Court said.
So why is AC continuing with this? Is there some Senior Exec who cannot afford the loss of face, and obvious exposure as an incompetent? Or, does AC see a guaranteed way to destroy ACPA? When their concerns are obviously non existent, why would they continue? What is the hidden agenda? Or are they just stupid?
Who is the Law Firm handling this for AC? Does this Law Firm have any connections to AC Board Members?
The union mentality of taking everything one can rob from an employer and give nothing in return just doesn't cut it in today's economic climate.
HA! Good one. 30% concessions from the same union group you say is robbing from the employer?? Work productivity gains and reduced benefits in favour of the company for the past 12 years and you are quoting the Conservatives' line of a fragile economy? Executives accepting $5 million dollar retainers to supplement an already out-of-whack compensation for top executives and a bloated, unnecessary, middle management that has had salary percentage increases of over 100% over the past 4 years.
... and now back to your regularly scheduled debate on age 60.
What_the? wrote:
If you want to apply the law fairly, apply it starting in December of 2012, with all new hires entering the company. At least they know what they are signing up for,
Everyone employed today, if they had any awareness level, would have known that this was coming. The Government has been proposing this for over Twenty years.
Tories end forced retirement, decades of ‘age discrimination’
Kathryn Blaze Carlson Dec 18, 2011 – 9:04 PM ET | Last Updated: Dec 18, 2011 11:21 PM ET
Two decades since Ottawa’s first attempt to kill mandatory retirement, the Conservative government has managed to quietly overturn legislation that has for 30 years given federally regulated employers the right to force workers into retirement because of their age.
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