WJ pilots reject tentative agreement

[Duster]

Bede said:

"I agree it's not a perfect system, and I'm not hell bent against trade unionism. You have to weigh the pro's and the con's and at WJ, the representation model we have is much better than a union model. The quality of some of the leadership could be a matter of debate but that's what elections are for. "

Hello Bede, that statement is not quite correct. At present we actually have NO real pilot representation. WJPA/PACT is a legal fiction, existing (and funded) at the whim of the company.

Cheers

[Bede]

Bede thanks for your insightful response. if an employee is fired BEFORE the lawsuit is named, then the insurance company will have no legal responsibility to defend you in court. Have you ever noticed that whenever someone asks NC on the WJPA forum regarding legal representation in case of an accident, they would NOT get a YES/NO answer?? That speaks volumes in itself.

I disagree. Liability and indemnity insurance cover someone given their status at the date of claim (ie an accident). It's like a car accident. If you get sued a year after you get into an accident and you've sold the car and have no insurance, the insurance company you had still has a duty to defend. WRT to the WJPA legal's answer, I don't know the details, but I think he's referring to the WJPA legal fund, not the company's insurance policy. A pilot wouldn't necessarily need access to the legal fund if the insurance company is covering.

Hello Bede, that statement is not quite correct. At present we actually have NO real pilot representation. WJPA/PACT is a legal fiction, existing (and funded) at the whim of the company.
Cheers

You are correct. The WJPA is a legal fiction. But it works for me and the majority of pilots. Our employment rules are still covered under the common law of employment contracts and part 3 of the CLC, just not part 1 (the part that deals with unions).

I was discussing legal representation following an accident, not collective bargaining representation.

[skyhigh]

I have asked that names or initials not be used here. This is the second time this morning so you are getting a warning. Please stop.
Bandaid

[jjj]

I support banning the WPPA execs however as a tactical move I think it was a mistake due to the blow back.

As far these freedom of speech arguments go - I find them weak.

Enjoy your fundamental freedoms. I will not persecute you for your opinions but it's my choice as well whether or not I wish to listen to you.

A freedom of speech is not a carte blanche to say anything you want anytime or anywhere. That would be ridiculous.

Oh and BTW, posting on the WJPA forum or even this forum is not a right - it's a privilege.


JJJ

[skyhigh]

Bede do you have a reference to the liability and indemnity coverage of terminated employees you refer to above? I just want to read it and understand it for myself. Thanks

[Bede]

Hey Skyhigh,

On WestNet, see the Civil and Criminal Coverage for WestJetters. Just type in Civil coverage in the WestNet search bar. It's the first document returned.

I probably shouldn't cut and paste it on a public forum, but our insurance policy covers us for all civil claims as I explained earlier. For criminal charges occurring during the scope of our employment, the company reimburses us for legal costs which can be assessed by a third party. This set up is considerably different than having a company lawyer defend you.

As for if you are sued after you leave WJ, I will double check, but I am all but certain you would still be covered.

[Disco Stu]

At any arbitration, any union I have been aware of always sends their reps, not the lawyers. The lawyers take over once the union is in trouble.

Completely false.

There are pilot reps on the grievance committee who provide input, but arbitrations are run completely by the lawyers and professional labour relations staff.

[JSYK]

You are correct. The WJPA is a legal fiction. But it works for me and the majority of pilots. Our employment rules are still covered under the common law of employment contracts and part 3 of the CLC, just not part 1 (the part that deals with unions).

I was discussing legal representation following an accident, not collective bargaining representation.

Part 3 of the CLC is just the minimum employment standards for federally regulated employees. It does not give one ounce of legitimacy to these fictitious pilot agreements that WestJet has created. There is no such thing as a "common law of employment contracts" and Part 3 of the Code certainly does not define anything like that. Pilot agreement, pilot contract, whatever you call it, it is merely a Company policy document, amendable at their will with appropriate notice, it is not an actual collective bargaining agreement as defined by the Code.

Legal representation to protect a pilot from personal liability from the passengers is only one aspect of the situation. In these situations you may also need the assistance of a Labour Lawyer(s) to advocate/advise you regarding your status as an employee after the event, especially if there is any fault apportioned to the pilot(s), which there almost always is. Gross negligence or willful misconduct are legally much different than making mistakes. Some believe that any fault of the pilot(s) in an accident should automatically constitute gross negligence or willful misconduct and that, itself, is one very good reason why the pilot(s) need their own, fully independent counsel, if involved in an accident. No matter how nice your management/Company is, it will protect its own interests (i.e.; shareholders, public reputation, etc)and you can bet they will utilize their own counsel, in addition to the Insurance provider's, to advise them on what actions they must take.

[Bede]

Part 3 of the CLC is just the minimum employment standards for federally regulated employees. It does not give one ounce of legitimacy to these fictitious pilot agreements that WestJet has created. There is no such thing as a "common law of employment contracts" and Part 3 of the Code certainly does not define anything like that. Pilot agreement, pilot contract, whatever you call it, it is merely a Company policy document, amendable at their will with appropriate notice, it is not an actual collective bargaining agreement as defined by the Code.

You are correct about part 3, but like I said, part 3 still does cover us. I wanted to contrast that to part 1 which does not cover us.

As for the rest of the paragraph you are wrong. Without trying to sound too arrogant, may I suggest that you do some reading on employment law? The CLC is what is called statutory law, as is the Aeronautics Act, Trademarks act, etc. Common law covers thing such as the enforcement of contracts and is the law as developed by judges over time. In simple terms, it is legal tradition. Employment law has both a statutory aspect and a common law one. Even though the CLC does not mention it (statutes rarely mention common law principles), the common law of contracts is still very applicable to employment contracts. For more information you can start with google then move unto CanLii.

Contrary to your assertions, our pilot agreement, while not a collective bargaining agreement, is still an enforceable contract as is our offer of employment. In Farber v. Royal Trust Co. 1997 1 SCR 846, Gonthier J. wrote:

"In cases of constructive dismissal, the courts in the common law provinces have applied the general principle that where one party to a contract demonstrates an intention no longer to be bound by it, that party is committing a fundamental breach of the contract that results in its termination. …

Thus, it has been established in a number of Canadian common law decisions that where an employer unilaterally makes a fundamental or substantial change to an employee's contract of employment -- a change that violates the contract's terms -- the employer is committing a fundamental breach of the contract that results in its termination and entitles the employee to consider himself or herself constructively dismissed. The employee can then claim damages from the employer in lieu of reasonable notice…."

Contrary to your statements, the company cannot change the pilot agreement unilaterally without risking a claim for wrongful dismissal.

Legal representation to protect a pilot from personal liability from the passengers is only one aspect of the situation. In these situations you may also need the assistance of a Labour Lawyer(s) to advocate/advise you regarding your status as an employee after the event, especially if there is any fault apportioned to the pilot(s), which there almost always is. Gross negligence or willful misconduct are legally much different than making mistakes. Some believe that any fault of the pilot(s) in an accident should automatically constitute gross negligence or willful misconduct and that, itself, is one very good reason why the pilot(s) need their own, fully independent counsel, if involved in an accident. No matter how nice your management/Company is, it will protect it's own interests (i.e.; shareholders, public reputation, etc)and you can bet they will utilize their own counsel, in addition to the Insurance provider's, to advise them on what actions they must take.

This scenario is exceedingly rare, with a probability of occurrence nearing that of being hit by lightening. It is so rare that in such an event that I would much rather pay for my own lawyer in that rare event than pay $100-$200/month to a union just in case this scenario happened. Keep in mind any lawyer (company or union funded) may still not make a difference at the end of the day. Let's call a spade a spade- this is nothing more than fear-mongering in an attempt to get cards signed.

Some believe that any fault of the pilot(s) in an accident should automatically constitute gross negligence or willful misconduct ...

Who are these "some" people?

[JSYK]

Contrary to your statements, the company cannot change the pilot agreement unilaterally without risking a claim for wrongful dismissal.

Yes, Constructive dismissal is an argument, absolutely. It is, and your examples are, for INDIVIDUALS. And, although it is possible, it is still rare (even says that on the Justice website) that one can file for Constructive dismissal without quitting their job first. It is quite obvious that the right of employees to file constructive dismissal claims does not make collective bargaining agreements obsolete. Does nothing to help those unfairly denied an upgrade, does it?
It does not turn these "pilot agreements", where certification and the resultant "agency of authority" to bargain on others behalf do not exist, into some sort of legal equivalency. It is quite clear they remain as purely company policies by everything you have sited. There is no 3rd party, binding, dispute resolution mechanism. The employer has sole discretion. The employer may make changes provided they give affected employees adequate notice. They then have to accept those terms or, within 90s days file a complaint for Constructive Dismissal. I suspect that you already know that is not an equivalency to a typical grievance process when you have certified representation and a real collective agreement.

Question, if this TA had passed, couldn't all pilots who voted NO file constructive dismissal claims when it was implemented?
to quote some on the internal forum… "Hmmmmmmmmmm"

[Bede]

JYSK, this time you're pretty much correct.

However, there is absolutely no evidence that the company is going to unilaterally implement something and I find the assertion to be little more than fear-mongering in an attempt to have card signed. Could Gregg tell us that come next year we're all working an extra day and take away our ESP? Sure I guess, but until that day comes I don't feel the need to be represented by a union.

WRT to your last question, that's actually I've thought about. Let's just say the company/WJPA agreed to cutting our ESP. They claim it is a collaborative solution to our rising costs. I would argue that the WJPA does not legally have a right to bargain on my behalf and therefore any change to my working conditions is a unilateral change to the terms of my employment.

[skyhigh]

However, there is absolutely no evidence that the company is going to unilaterally implement something and I find the assertion to be little more than fear-mongering in an attempt to have card signed.

Bede one can use that same thought, change the content and voila....."I find the change to the paid moves for the YYZ upgrades to the 200 number an attempt to have votes swayed"

[skyhigh]

Hey Skyhigh,

On WestNet, see the Civil and Criminal Coverage for WestJetters. Just type in Civil coverage in the WestNet search bar. It's the first document returned.

I probably shouldn't cut and paste it on a public forum, but our insurance policy covers us for all civil claims as I explained earlier. For criminal charges occurring during the scope of our employment, the company reimburses us for legal costs which can be assessed by a third party. This set up is considerably different than having a company lawyer defend you.

As for if you are sued after you leave WJ, I will double check, but I am all but certain you would still be covered.

Thanks, yes I have already read this policy. However my concerns for coverage AFTER termination still stands. If you find out more on this please let me know. Thanks.

[WJ200]

Bede one can use that same thought, change the content and voila....."I find the change to the paid moves for the YYZ upgrades to the 200 number an attempt to have votes swayed"

What company are you working for? I don't think it's the same one as I am. This is another example of the company stepping up and doing the right thing. By your logic they would take this away after the TA failed....which they haven't.

As far as the legal coverage, ALPA sells you on their ability to cover ANY scenario. As they've stated on the forum, the WJPA and PACT have coverage for all likely scenarios except for gross or wilful negligence. Should they say that ALL potential events are covered?

You bring up the LaGuardia situation and realistically the company must have had a very valid reason for termination. Conspiracy theorists always bring in "one of" events to validate their arguments. Show this in a broader trend (ie. the criminalization of aviation accidents in Europe) and we can have a different conversation.

[skyhigh]

Bede one can use that same thought, change the content and voila....."I find the change to the paid moves for the YYZ upgrades to the 200 number an attempt to have votes swayed"

What company are you working for? I don't think it's the same one as I am. This is another example of the company stepping up and doing the right thing. By your logic they would take this away after the TA failed....which they haven't.

Its part of the TA, since it wasn't ratified, it NOT part of the Base MOA hence its NOT in effect. There is nothing to take away.

"The company stepping up and doing the right thing" Really??? the RIGHT thing was to offer this from the START (at the introduction of the Base MOA) and NOT have to wait until the threat of a FAILED TA force their hand. This paid move to 200 issue was brought up and fought from day 1 of the Base MOA negotiations....We kept telling them that we cannot leave anyone out thats forced to YYZ and this is the FAIR thing to do......management dug in their heels and said "NOPE"!!! every bloody single time.

[skyhigh]

You bring up the LaGuardia situation and realistically the company must have had a very valid reason for termination. Conspiracy theorists always bring in "one of" events to validate their arguments. Show this in a broader trend (ie. the criminalization of aviation accidents in Europe) and we can have a different conversation.

Termination before the NSTB has concluded their investigation?? Well even if thats the case, the point I'm trying to clarify is if our pilot would have paid legal representation if this happenend.

[WJ200]

Paid moves to 200 is still in effect even though the TA was voted down.

[Bede]

Thanks, yes I have already read this policy. However my concerns for coverage AFTER termination still stands. If you find out more on this please let me know. Thanks.

I spoke to my sister in law. She is a tort (personal injury) lawyer and that's pretty much all she deals with is insurance company's. She said the same as I did above unless there is a specific exclusion clause in the policy but she has never ever heard of such a clause in a policy. I sent an email to our Senior Legal Counsel as well for clarification. I'll let you know once he gets back to me.

As for the employment representation in your latest post. Let's assume the WJPA doesn't help you out and you need to pay for your own lawyer. Yes, lawyers are expensive, but the scenario you've laid out is incredibly improbable and isn't worth shelling out $100-$200/month for- that's expensive insurance for something so unlikely. If you're willing to pay $100-$200/month for the piece for mind that your lawyer will be covered if something happens, I'm sure there is some sort of insurance product out there for a lot less.

[mbav8r]

However, there is absolutely no evidence that the company is going to unilaterally implement something and I find the assertion to be little more than fear-mongering.
where an employer unilaterally makes a fundamental or substantial change to an employee's contract of employment

Bede, I don't have a horse in this race but would really like to know your thoughts on the elimination of the port system and how it relates to the above?
Was the port system in the agreement or just company policy? Would this constitute a substantial change to the employment contract?
We at Jazz have gone through a situation with regards to our pass travel and the passes I signed on for are not the passes I have today and have considered a class action suit but have not started anything for obvious reasons, union or no union I would be a marked man.
Anyone who doesn't think the loss of the port is an extremely significant issue should consider the I spend approximately 7000.00 after tax income per year on commuting, so all you new commuters just received an 11,000/yr pay cut and the AIF's aren't going down, last I checked.

[The Raven]

However, there is absolutely no evidence that the company is going to unilaterally implement something and I find the assertion to be little more than fear-mongering.
where an employer unilaterally makes a fundamental or substantial change to an employee's contract of employment

Bede, I don't have a horse in this race but would really like to know your thoughts on the elimination of the port system and how it relates to the above?
Was the port system in the agreement or just company policy? Would this constitute a substantial change to the employment contract?
We at Jazz have gone through a situation with regards to our pass travel and the passes I signed on for are not the passes I have today and have considered a class action suit but have not started anything for obvious reasons, union or no union I would be a marked man.
Anyone who doesn't think the loss of the port is an extremely significant issue should consider the I spend approximately 7000.00 after tax income per year on commuting, so all you new commuters just received an 11,000/yr pay cut and the AIF's aren't going down, last I checked.

I doubt your class action law suit would go anywhere. Pass travel is a privilege, not a right. I doubt your contract says very much about pass travel. You didn't "sign on" for any passes. They came as a privilege when you joined.

Good luck though.