equipment bid

[Rockie]

Brickhead

I fully expect Vilven and Kelly to lose their appeal because at the time they filed their case with the CHRT the normal retirement age was 60. That's what the CHRT made their ruling based upon. ACPA and many others are mistakingly assuming that will be the end of it. The normal age for retirement is going up to 65 and there will be other challenges put before the CHRT. If the CHRT uses the same criteria for follow on rulings as they did the first one (and why wouldn't they?) then guess what?

You are also very mistaken if you think a contract voted on by the majority of pilots nullifies the law. Lost in Saigon gave an example and here's another. If ACPA members decided we could work 18 hour duty days by a 100% vote does that then make it legal? And using your example if 100% of the membership voted for no vacation then you would still get the legislated minimum which is two weeks per year I believe. Failure to give legislated minimum vacation would put the company in violation of the law, not ACPA. Failure to permit employment to whatever age the CHRT deems fit would also put the company in violation of the law, not ACPA.

A contract cannot violate law. We cannot write our own laws or vote to contravene them. If (when) the CHRT says it is discriminatory to force retirement at 60 then the pilots will have some serious reality to get aquainted with.

I am also not assuming going past 60 will entail full seniority rights, but here's the thing. You have a bunch of guys who have been with the company for 25+ years adhering to a very rigid seniority system. The government now says it is against the law to force someone to retire before 65. Do you really think those people are just going to give up their seniority rights without a fight? Why should they? If you sacrifice employees seniority rights based on a birthday why not do it at age 55? How about 50? Afterall, the majority of pilots are under 50 and could easily pass a vote like that, so think how good it would make all your lives then. Too bad about the over 50's though, but then they aren't real members of our union are they?

See the pandora's box that would be opened?

[Brick Head]

Lost,

But is IS all about age discrimination and the HRC does have jurisdiction .

No it is not. The HRT didn't agree with you. The only thing new is a special formula for determining normal age of retirement for Air Canada pilots.

ACPA is completely free to negotiate distribution to ensure equality for all members. Ensuring payroll distribution is equitable is not an age discrimination issue. As such the HRC has no jurisdiction. Read the transcripts. The board was very cognoscente, some appeared to be a little shocked at how steep our renumeration curve was. It is none of their business how we choose to distribute. If it was their business the junior guys would have a case for reverse age discrimination.


The CHRT decided that Vilven and Kelly were not discriminated against because at the time of their retirement, the age for the world's Legacy carriers was 60.

BUT, there are two really big problems with that.1)

Canadian Human Rights are not based on what happens in other countries around the world.

Your talking about the appeal as if it is a done deal....again. Once again the last CHRT ruling did not agree with you. That is strictly your opinion being asserted at appeal. Of course Human rights are not based on what happens outside our country. There is no restriction however from a HRT looking outside the country for comparison when they feel that comparison meets Canadian values.

You are all over the place on this argument. Citing recent ICAO changes "Gotta go to 65 cause the world is going that direction" then when the HRT looks outside the country for guidance and comparison you change your tune to" You can't look outside the country"????????

2) Even if it was, since Vilven and Kelly retired, the average age of retirements has constantly been changing. I doubt anyone really knows what it is right now.

Well ACPA and AC had better be paying attention because it is the law now. If the average goes above 60 without allowing pilots to stay there will be consequences. It is why the two will need to negotiate changes soon. Maybe the contract opener next year or sooner.

If Vilven and Kelly should lose their appeal, there are dozens of other pilots who have filed cases, and they are sure to win because the retirement age in Canada (and around the world) is no longer 60.

If Vilven and Kelly lose their appeal then that means the present ruling stands.

That means there is nothing to win or loose. If the average of legacy carriers goes above 60 they get to stay. If it hasn't....they don't.

In what capacity yet to be determined.

[Brick Head]

Rockie,

I fully expect Vilven and Kelly to lose their appeal because at the time they filed their case with the CHRT the normal retirement age was 60. That's what the CHRT made their ruling based upon. ACPA and many others are mistakingly assuming that will be the end of it. The normal age for retirement is going up to 65 and there will be other challenges put before the CHRT. If the CHRT uses the same criteria for follow on rulings as they did the first one (and why wouldn't they?) then guess what?

Exactly. We agree then. When the average of legacy carriers goes beyond 60 that average becomes the new normal age of retirement for Air Canada pilots to a maximum of 65. Might become 61. Then 63. The CHRT gave us a moving target.

You are also very mistaken if you think a contract voted on by the majority of pilots nullifies the law. Lost in Saigon gave an example and here's another. If ACPA members decided we could work 18 hour duty days by a 100% vote does that then make it legal? And using your example if 100% of the membership voted for no vacation then you would still get the legislated minimum which is two weeks per year I believe. Failure to give legislated minimum vacation would put the company in violation of the law, not ACPA. Failure to permit employment to whatever age the CHRT deems fit would also put the company in violation of the law, not ACPA.

A contract can not violate law. We cannot write our own laws or vote to contravene them. If (when) the CHRT says it is discriminatory to force retirement at 60 then the pilots will have some serious reality to get aquainted with.

Exactly. It will be discriminatory to force retirement at 60 if (when) the average of legacy carriers goes beyond 60. That is the point I was making. That is why ACPA and AC will need to sit down and negotiate changes that fit within the law.

My point is that the issue is settled unless changed through appeal.



I am also not assuming going past 60 will entail full seniority rights, but here's the thing. You have a bunch of guys who have been with the company for 25+ years adhering to a very rigid seniority system. The government now says it is against the law to force someone to retire before 65. Do you really think those people are just going to give up their seniority rights without a fight? Why should they?

Exactly why that issue will be the next fight. One side will call it age discrimination. The other calling it, ensuring equitable distribution, and not a human rights issue.

If you sacrifice employees seniority rights based on a birthday why not do it at age 55? How about 50? Afterall, the majority of pilots are under 50 and could easily pass a vote like that, so think how good it would make all your lives then. Too bad about the over 50's though, but then they aren't real members of our union are they?

Finally we disagree. Starting to get worried there.

No ones seniority rights will be sacrificed based on age. They will be surrender based on the contract they agreed to.

[Lost in Saigon]

Brickhead,

I don’t know where you get the idea that the CHRC has decided that the “Normal Retirement age” for Air Canada pilots is the average of legacy carriers around the world.

The way I read it, only the Vilven/Kelly decision was based on the average retirement of legacy carriers, and only at the actual time that Vilven and Kelly retired.

They hinted that future CHRC cases would be decided that way, but it is not cast in stone.

Are you aware that there are currently at least 44 other Air Canada pilots with age discrimination cases before the CHRC?

These 44 cases are on hold while we wait for the result of the Vilven/Kelly appeal.

The way I see it, there are two possible outcomes:

1) Vilven/Kelly lose and the age remains 60. At that point the next 44 cases will be heard and these cases will then be decided based on a new “Normal Retirement Age” that has nothing to do with the Vilven/Kelly case.

1) Vilven/Kelly win the right to work past age 60. If the CHRT appeal decides that errors were made, and that 65 is the new normal retirement age, there will be no need to hear the other 44 cases.

[Brick Head]

Brickhead,

I don’t know where you get the idea that the CHRC has decided that the “Normal Retirement age” for Air Canada pilots is the average of legacy carriers around the world.

The way I read it, only the Vilven/Kelly decision was based on the average retirement of legacy carriers, and only at the actual time that Vilven and Kelly retired.

They hinted that future CHRC cases would be decided that way, but it is not cast in stone.

Not cast in stone ???????? Hinted???????

The question being asked of them was. What is the normal age of retirement for people doing similar work and what is the comparator group that should be used. They answered both.

page 15. paragraph 69. states


......the data reveals (referring to the legacy averaging) the normal age of retirement for the purposes of s. 15(1)(c) of the CHRA

You really think they have any intention of hearing cases ad nauseum?

The CHRT clearly defined what the normal age of retirement is for Air Canada pilots and how to determine it. It is now the law. Unless it is changed on appeal that is what we are all required to work within.

Are you aware that there are currently at least 44 other Air Canada pilots with age discrimination cases before the CHRC?

These 44 cases are on hold while we wait for the result of the Vilven/Kelly appeal.

Yup.

The way I see it, there are two possible outcomes:

1) Vilven/Kelly lose and the age remains 60. At that point the next 44 cases will be heard and these cases will then be decided based on a new “Normal Retirement Age” that has nothing to do with the Vilven/Kelly case.

No. No more hearings will take place. Where are you getting this selective interpretation of the recent ruling? The CHRT has spoken. They have defined what is the normal age of retirement for AC pilots. If Vilven and Kelly loose on appeal the present definition of what is the normal age of retirement stands. It is an average of legacy carriers. The CHRT will not hear another case unless there is evidence that AC and ACPA are not abiding by the ruling.

Vilven/Kelly win the right to work past age 60. If the CHRT appeal decides that errors were made, and that 65 is the new normal retirement age, there will be no need to hear the other 44 cases.

Correct. If the normal age of retirement changes on appeal that will now be the law. Everyone will have to comply. The same as if the ruling isn't changed on appeal. In that case the present definition will apply.

[Dockjock]

So Brick Head, what you are saying is that a union's right to collective bargaining will be the workaround for issue of the capacity in which over-60's will be able to stay? ie. We have a right to collectively decide how our "pie" is sliced (so long as the method isn't purely age related). Great news. So we will be able to advance such suggestions as
-reserve only
-frozen in current QPOS
-layoff first
-last bidding on vacation
so as to mitigate the negative effects of this case on the rest of us.

However, how to apply such conditions to people who are exclusively over 60 without explicitly stating, "THESE CONDITIONS APPLY TO THOSE OVER 60" in bold print? I see your loophole, I'm just not sure how precisely to fly through it. What other common denominator exists amongst those in that group (other than age)? Eligibility for pension?

[Lost in Saigon]

Brickhead,

You are getting wrong information, or you are interpreting the information wrongly.

The CHRT decision only applies to Vilven and Kelly.

You can get lots of information here:


http://www.flypast60.com/

Examples:

The Canadian Human Rights Tribunal hearing into the complaints of age discrimination by two former Air Canada pilots in respect of their termination (mandatory retirement) concluded in early March, 2007; the Tribunal's decision was released on August 17th. Neither of the complaints were upheld. However, the Tribunal was explicit in its findings that the complaints that it was reviewing were of those two individuals only, and that the fact situations as of their respective dates of termination were the facts relevant to the Tribunal's decision.

The Tribunal also noted changes in the industry, including changes in the ICAO standards for maximum age of pilots-in-command, which became effective November 23, 2006. Hence, it would appear, that the Tribunal did not foreclose itself from arriving at a different decision, given a different complaint (or set of complaints).

Both pilots affected by the Tribunal decision have sought judicial review of the Tribunal's ruling, on a number of grounds, and that review is expected to take place early in 2008


In the meantime, the Canadian Human Rights Commission has continued to refer additional Air Canada pilot complaints regarding termination of employment by reason of age to the Canadian Human Rights Tribunal, for adjudication. At present, in addition to the two complaints previously heard by the Tribunal, there are an additional 66 complaints by 45 individual pilots that have been referred. All 45 of these individuals have named Air Canada as a respondent. The additional 21 complaints are by 21 of these same individuals naming ACPA as a respondent.

However, in obiter (legal parlance), the Tribunal stated that although there was insufficient evidence presented at the hearing of these cases to show that the "normal" age of retirement for the two Complainants at their respective dates of forced retirement, namely 2003 and 2005, was other than age 60, the Tribunal now accepts the ICAO standard maximum age of the pilot-in-command as the "normal" age of retirement, for the purposes of Section 15.1(c) of the Canadian Human Rights Act.

Hence, we assume, as of November 23, 2006, the date of the implementation of the ICAO changes in maximum pilot-in-command age," the normal age of retirement for pilots doing work similar to that of the individual (i.e. criteria set out by Section 15.1(c) of the Canadian Human Rights Act) is age 65.

Although neither of the complainants before the Tribunal in this instance met this criterion, there is a slew of cases of other pilots who have been referred by the Canadian Human Rights Commission to the Canadian Human Rights Tribunal that do meet this criterion.

[Martin Tamme]

Vilven/Kelly win the right to work past age 60. If the CHRT appeal decides that errors were made, and that 65 is the new normal retirement age, there will be no need to hear the other 44 cases.

Correct. If the normal age of retirement changes on appeal that will now be the law. Everyone will have to comply. The same as if the ruling isn't changed on appeal. In that case the present definition will apply.

Forgive me for asking, but how do you arrive at the conclusion that should Vilven/Kelly win at the Federal Court level, 65 will the new normal retirement age? Vilven/Kelly are arguing that the wrong comparator group was used (ICAO, U.S. and all of the other world legacy carriers). Vilven/Kelly are stating that the comparator group has to remain Canadian, and the CHRT had no business comparing us to ICAO or to the States.

Should Vilven/Kelly win, the Federal Court will turn the matter back to the CHRT to come up with a new comparator group. The CHRT will not be allowed to look at ICAO, the States, Europe or Asia. Vilven/Kelly will be arguing that there should be no age limit at all (there is no age limitation placed upon a Canadian Pilot's License). I don't know where you are getting this 65 stuff from - There's either no age at all (again that's if Vilven/Kelly prevail) or it will be 60 (the Canadian way).

[Rockie]

The mistake people are making here is hanging everything on Vilven and Kelly.

Forget Vilven and Kelly.

However that one turns out will not effect the next case(s) because the normal age for them is now 65. Vilven and Kelly is only delaying the inevitable and that time should be used to come up with a game plan on how to implement age 65. Judging by the extreme positions related here that won't be easy. ACPA should be educating the pilots to the new reality, not perpetuating a lost cause because of a meaningless vote.

[Brick Head]

Lost,

Lost some of that stuff is bordering on pure speculation, some lacks logic, and some boarders on what appears might be ............lets call it deliberate creative interpretations.

All summed up to appear as fact.

Let's stick with the subject. I don't have enough brain cells to argue 50 issues at once.

You are getting wrong information, or you are interpreting the information wrongly.

The CHRT decision only applies to Vilven and Kelly.

However, the Tribunal was explicit in its findings that the complaints that it was reviewing were of those two individuals only,[/b] and that the fact situations as of their respective dates of termination were the facts relevant to the Tribunal's decision.

Yes and no.

Lets back up the wagon. The whole reason Vilvens case was heard by the tribunal was because he posed a question that the CHRC agreed needed clarification. The CHRC does not take on every case that comes their way. But in this case Vilven presented a compelling argument that required clarification.

The question surrounded the following exception to the law.

"At the federal level, it is not a discriminatory practice under the Canadian Human Rights Act to terminate an individual’s employment because that individual has reached the normal age of retirement for employees working in similar positions"

The questions needing clarification were:

1.)What is the normal age of retirement for AC pilots

2.)What are employees working in similar positions. (comparator group)

The most important of the two questions is obviously #2 since the answer to #1 flows from it.

The CHRT provided clarification on the questions as follows.

Employees working in similar positions (the comparator group) is other legacy carriers.

The normal age of retirement for the purposes of the exception listed above is the average of that group.

The clarification to these questions apply to us all.

The ruling itself applies only to Vilven/Kelly

So as for future HR complaints. If the Tribunal feels the complaints have already been answered. They will be dismissed.

As you know AC and ACPA have both filed "abuse of process" claims against the other 44 . Claiming that the CHRT has already answered the claims.

The CHRT put both issues aside, until the appeal is heard.

Again. If the ruling stands on appeal so does the clarification of the exception to the law stated above.

Normal age of retirement for AC pilots will be the average of legacy carriers.

You can see now why the complainants want the comparator group, used by the CHRT, struck down on appeal.

[Brick Head]

The mistake people are making here is hanging everything on Vilven and Kelly.

Forget Vilven and Kelly.

However that one turns out will not effect the next case(s) because the normal age for them is now 65.

I have heard this argument before and it is a very creative stretch of what was said. The logic doesn't hold up either.

The normal age of retirement is the average of legacy carriers to a MAXIMUM of 65.

That is what the CHRT said.

If the intent of the ruling was that the normal age of retirement would automatically be the maximum allowed then Vilven/Kelly would have won.

[Rockie]

No. When Vilven and Kelly retired the normal age was 60, hence no case for them as far as I'm concerned. But that has changed now and forever. Whether you want to call it 65 or anything in between the point is it is past 60 now and we had better adapt to it. To this point all energy has been focused on maintaining 60 which is a lost cause. We better start thinking to the future, not maintaining a lost past.

[Brick Head]

i]Forgive me for asking, but how do you arrive at the conclusion that should Vilven/Kelly win at the Federal Court level, 65 will the new normal retirement age? Vilven/Kelly are arguing that the wrong comparator group was used (ICAO, U.S. and all of the other world legacy carriers). Vilven/Kelly are stating that the comparator group has to remain Canadian, and the CHRT had no business comparing us to ICAO or to the States.[/i]

Martin,

I don't come to that conclusion. I took the statement at face value. He used the term CHRT. Which implied to me that all the steps you speak of took place and then the CHRT came up with a new ruling of 65. After a second look I think I miss understood the statement.

All I was saying is that if the CHRT rules anew. We all have to live with it.

You are a trouble maker. I am deliberately trying to stay out of speculation surrounding the what if's on appeal. Mainly because I feel this is a very well crafted and thought out ruling. I don't think anything is changing. Contrary to the speculation here that change is a given

[Brick Head]

But that has changed now and forever. Whether you want to call it 65 or anything in between the point is it is past 60 now and we had better adapt to it.

Do you have the data for that? At the tribunal the average was actually less than 60. Some groups are still 55 and 58.

Yes we all know it is coming. If you read the last news letter from the ACPA committee one of the comments they made was. Paraphrasing. In the mean time, while waiting for the appeal, the present ruling is the law and we have to work within it.

Doesn't sound like denial to me.

[Brick Head]

[quote="Dockjock"]So Brick Head, what you are saying is that a union's right to collective bargaining will be the workaround for issue of the capacity in which over-60's will be able to stay?
quote]

Dockjock,

It is not a work around.

What we have here is a collision between one set of laws and another. Many people believe, without hesitation, that discrimination trumps all. Normally it does, but not so in the case of age, and particularly not when it comes to collective bargaining.

Please read the Vilven/Kelly ruling paragraph 88 & 98-109 for some insight. It is on the ACPA site/committees/age 60.

[Rockie]

Brickhead

ACPA is not looking past defeating Vilven and Kelly because the membership doesn't want them to. The membership (most of them anyway) wants age 60 and is adamantly refusing to consider anything else. But age 60 will change, and the sooner we start preparing for it the better.

[Brick Head]

Age discrimination is treated differently because we all age.

If we are all treated the same at any given age is that discrimination or equality?

Is it age discrimination if a younger worker makes less than an older worker doing the same job? Yes, but it is accepted.

Is it age discrimination when an insurance company charges more when you get older? Yes, but it is accepted.

Is it age discrimination to have mandatory retirement at all. Yes, but it is accepted. In fact a deliberate exception was built into the CHRA to ensure its continued existence.

The CHRA recognizes that Labor Laws improve the Human existence which is what HR legislation is all about. Collective bargaining, although has age related trade offs, is good for the group as a whole. Higher wages, pensions, benefits. They are very cognoscente that there is a balance between Human rights, when it comes to age, and the increased benefit to individuals as a result of that discrimination. It is the very reason why exceptions to the law, when it comes to age were introduced.

They are very careful not to unwind the fabric of collective agreements to the detriment of the greater good. A good that the complainants they themselves benefited from. But now on departure they want to unwind it.

For that reason when they do step in they usually provide time for the parties to respond and comply within there collective agreement framework. In our case we didn't get a date. We got a formula that will eventually hit 60+.

For that reason will you not likely see any involvement by the HRC directly into how we structure our collective agreement.

They said they get to continue to work past 60, once 60 is no longer the normal age of retirement.

They did not say they get to take what contractually belongs elsewhere.

They are separate issues. They will leave it to us to settle how we manage the change and settle the inequities that result.

Using Human rights legislation for person gain is/was not the intent.

[Brick Head]

Brickhead

ACPA is not looking past defeating Vilven and Kelly because the membership doesn't want them to.

Yes they are. I repeat....Again. In their last news letter, if you understood what they were saying. There is a new definition as to what is the normal age of retirement. It is under appeal, however at the moment it is the law and we must comply.

Sounds very much like acceptance that working past 60 is coming.

[tonysoprano]

I'm wondering who if anyone will be liable when a pilot over 60 becomes incapacitated, the flight is put in jeapordy and some passengers decide that maybe suing someone might win them some cash. The argument could be made that pilots of any age can become incapacitated but certainly in a court of law, anything can happen. So then who decides what is a healthy age a pilot can fly to? A judge? A doctor? Is it age 60, 65, 70...? The point I'd like to throw out there is that this case can go beyond the human rights argument. Do we jeapordize a flight in the name of human rights? The implications can open up a can of worms. A benchmark (60) has been established and has been around forever. Once that increases, so might the liability.

[Lost in Saigon]

Do we jeapordize a flight in the name of human rights? The implications can open up a can of worms. A benchmark (60) has been established and has been around forever. Once that increases, so might the liability.

The benchmark is no longer 60. Thousands of airline pilots around the world are flying past 60 right now! (including many ex-Air Canada pilots)

Wake-up and face the new reality.

[Rockie]

Brickhead

ACPA is not looking past defeating Vilven and Kelly because the membership doesn't want them to.

Yes they are. I repeat....Again. In their last news letter, if you understood what they were saying. There is a new definition as to what is the normal age of retirement. It is under appeal, however at the moment it is the law and we must comply.

Sounds very much like acceptance that working past 60 is coming.

Have you listened to your fellow pilots or read most of the comments on this and other forums regarding over 60? And if it is accepted where is the working group or committee tasked with laying the ground work for implementing it? ALPA came to that realization and did that work almost immediately. What have we done?

Nothing!

That's because 75% of us and our union it seems are still living in denial.

[tonysoprano]

The benchmark is no longer 60. Thousands of airline pilots around the world are flying past 60 right now! (including many ex-Air Canada pilots)

I realize that Lost. And I'm sure it's worked out quite well. But wasn't that the case for charter companies only? Or is it across the board? I ask this because I know that many legacy carriers worldwide use to (still do?) retire at ages much younger than 60. So just becuase you can go to 65, does that mean that you really have to? Do companies not have the right to set a lower age as part of a negotiated item with their union? Our company management I think has told us they fully support age 60. I think Air france use to have a retirement age of 58.

[Lost in Saigon]

As soon as you can accept that age 65 is here, your union will start working to ENSURE that anyone who wants to retire at 60 may do so without a penalty.

Burying your head in the sand and coming up with all sorts of reasons why YOU don’t like 65 is not the way to make progress towards the future.

It may be too late already.

[tonysoprano]

My head isn't buried anywhere. I'm all for it as long as I have a choice. Even though we all know what this is really all about by now, right? But you know, I'm pretty sure there are companies the world over that retire well before 60. Are you sure OUR union will automatically accept this just because it's the way of the future? Don't forget, there's still more of us than you. Unlike the seniority saga, this just MIGHT go to a vote. But hey, like I said, gimme a choice without getting penalized and I'm happy.

[Al707]

Lost in Saigon and Rockie you both sound as if you are in a real hurry for all this to happen. So much so that I believe you to be in the 55+ age group and trying to hang on to what you have. Which is pretty good isn't it?

Age 60+ plus has been a reality in the charter market and also the contract market for many years so why were you not arguing these (your) points 5 or 10 years ago?

I believe it is because you benefited from the very set of rules that you now (conveniently) find discriminatory.

If/ or when the rules of the game change it must not be a massive windfall for those of you at the top! It must be negotiated into the contract for those hired as of the date of the rules changing and becoming law or phased in or something else to mitigate the damage to others that have specifically had their salaries negotiated lower to keep the top end higher.

A complete re-think of how things have historically been done would be in order unless of course the government forces the change and the rules of how it will be implemented.