Mandatory Retirement to be Eliminated in Parliament

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Rockie
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Re: Mandatory Retirement to be Eliminated in Parliament

Post by Rockie »

Say Altitude wrote:Well that's the whole rub to this issue isn't it? The employer, Air Canada, didn't arbitrarily set the retirement age. It was a negotiated contract provision that was agreed to by both employer and employee and voted on and ratified by a MAJORITY of the pilot membership.

Nothing was forced on anyone.

The greed here disgusts me - and I'm not even there...good luck to those of you fighting this garbage...
This is getting a little frustrating explaining the obvious over and over again.

This has nothing, repeat nothing to do with the contract. Mandatory retirement is already illegal in the majority of jurisdictions within Canada, and will eventually be illegal in every jurisdiction within Canada. There is a bill working its way through parliament right now that will make it illegal for federally regulated industries like ours.

Does anybody really think this is exclusively an Air Canada pilot issue, or that Air Canada pilots will somehow be exempt from the law? Do you think every provincial and federal law banning this will state at the end "Air Canada pilots excepted because they have a contract"? Smarten up people.

Mandatory retirement age in every industry is going the way of child labour, and it's about time pilots came out of the dark ages too. For Christ's sake stop blaming this on a few people because it is way bigger than they are.

And why do normally intelligent people think if a majority want to go at 60 it isn't being forced on those who don't? Last I heard "majority" isn't the same as "unanimous". Even if the HRTC challenges weren't happening and Air Canada pilots were "unanimous" in keeping mandatory retirement at 60, we couldn't. It's soon to be illegal.
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Last edited by Rockie on Sat Nov 14, 2009 8:43 am, edited 1 time in total.
CD
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Re: Mandatory Retirement to be Eliminated in Parliament

Post by CD »

Rockie wrote:Does anybody really think this is exclusively an Air Canada pilot issue, or that Air Canada pilots will somehow be exempt from the law? Do you think every provincial and federal law banning this will state at the end "Air Canada pilots excepted because they have a contract"?
Sure, why not? After all, parliament already treats Air Canada differently than any other aviation company in Canada via the ACPPA... :rolleyes:

PS - that was sarcasm, just to be clear. I don't think that the government will ever cut the ties that bind Air Canada, nor do I think they will incorporate a let for ageists...
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yycflyguy
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Re: Mandatory Retirement to be Eliminated in Parliament

Post by yycflyguy »

.... and yet, the BC court of Appeals just denied the women ski jumpers their discrimination case for exclusion from competition in the Vancouver Winter Olympic Games. I guess it IS ok to contravene the Canadian Charter of Human Rights in some cases, eh my Master?
VANCOUVER - International Olympic Committee officials are pleased with the B.C. Court of Appeal's ruling against the addition of women ski jumpers at the 2010 Olympics, saying now the Vancouver Games can proceed as planned.

"As the lower court noted, the IOC has continued to demonstrate by its actions its support for women athletes and their participation in the Olympic Games,'' the IOC said in a statement to The Canadian Press. "We understand the desire of athletes to compete at the highest level and we will continue to follow the development of women's ski jumping."

"We remain open to considering its possible inclusion in the Games following Vancouver and support the continuing development of the sport.''

B.C. Court of Appeal judges were asked to overturn a lower court ruling acknowledging the girls' rights were being violated, but that solving the issue was beyond the control of Vancouver Olympic organizers.

The IOC voted in 2006 not to include women's ski jumping at the 2010 Games, saying the sport had not met the required technical criteria.

The women could appeal to the Supreme Court of Canada, but their lawyer says it's late to do that with the Games just three months away.
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Old fella
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Re: Mandatory Retirement to be Eliminated in Parliament

Post by Old fella »

Has anybody ever taken a straw vote on the number of AC guys/gals who want to continue beyond 60 yrs of age if they had a choice!!!
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Rockie
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Re: Mandatory Retirement to be Eliminated in Parliament

Post by Rockie »

Old fella wrote:Has anybody ever taken a straw vote on the number of AC guys/gals who want to continue beyond 60 yrs of age if they had a choice!!!
In early 2006 the MEC took the position that they were against 60+, and then put a vote to the membership with the following text:

QUESTION:

Do you support the MEC’s position to maintain the
Age 60 retirement provisions?

FOR YES PRESS (01) FOR NO PRESS (02)


There was no examination of the issue beforehand. There was no balanced analysis or discussion of the pros and cons. No look into the future at which way Canadian society was going regardless of the MEC's wishes. In other words, the fix was in to ensure the pilots supported what the MEC wanted and had already decided to do.

Of the 3083 eligible members only 1840 cast votes. 1382 decided to support the MEC's position and 458 voted no. Keep in mind there was absolutely no information given to the members prior to this vote. That was over 3 years ago.

The situation has changed somewhat and still there is no examination of the issue or realistic assessment of the events since that time. The union is still fighting the ruling and perpetuating the false hope within the membership that it can be stopped. In the meantime pilots are being cashiered every month who will have the right to return and possibly seek damages due to the union and company's delaying tactics. Every month it gets worse.

It must also be realized that we might as well have voted on whether we should grow fins and gills and live in the water from now on. The HRTC doesn't care what we want as a group. The courts don't care what we want as a group. The contract cannot violate Canadian law and that's what our union and pilots can't seem to grasp.
yycflyguy wrote:.... and yet, the BC court of Appeals just denied the women ski jumpers their discrimination case for exclusion from competition in the Vancouver Winter Olympic Games. I guess it IS ok to contravene the Canadian Charter of Human Rights in some cases, eh my Master?
Could we please keep this conversation relevant and the nonsense out of it?
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yycflyguy
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Re: Mandatory Retirement to be Eliminated in Parliament

Post by yycflyguy »

Could we please keep this conversation relevant and the nonsense out of it?
:smt017 I thought this was a thread about discrimination or is it only how it applies to you?
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Brick Head
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Re: Mandatory Retirement to be Eliminated in Parliament

Post by Brick Head »

Mandatory Retirement to be Eliminated in Parliament

Are we going to need the clarity act adopted here?

Scratch your noggin for a minute. This is a private members bill right? Ask your self why no political party adopted the legislation considering it would set public policy? They will leave it to the courts to decide just like same sex marriage. They are politicians.

Roughly 23% of private member bills that make it to first reading become adopted. But a private member bill that changes the CHRA??????????????
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Brick Head
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Re: Mandatory Retirement to be Eliminated in Parliament

Post by Brick Head »

Rockie wrote:
Could we please keep this conversation relevant and the nonsense out of it?
I think it is quite relevant. People seem to forget, some people anyway, that the rights afforded within the CHRA are always to be balanced against the needs of society. Most to the time this only happens with age discrimination. Rarely with sexual discrimination. But as Flyguy points out even it apparently has limits.

But certainly every right has limits. It is not black and white. Every right has a side affect. The best example I can think of is the red light. Are my rights limited because I have to stop at the red light? Yes they are. Should I have the right to drive straight through? No because then I am affecting the rights of others who expect safe transport. In this case it is reasonable to limit my rights. Whenever rights are enforced/changed for one group the impact on the other must be measured.

In the case before us, the Tribunal has basically stated that end loading a specific age with compensation, for the purposes of pension, does not need to end just because individuals work beyond that age. Therefore the impact was seen to be small or non existent.
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DocAV8R
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Re: Mandatory Retirement to be Eliminated in Parliament

Post by DocAV8R »

So many of you want no change and it all back the way it used to be. I bet the MEC and AGE 60 Committee would be happy to put the following old rule to a vote, and I bet they could word it so that it to would pass.
AIR NAVIGATION
ACT AMENDMENTS 1922
THE Air Ministry has just issued the following amendments to
Air Navigation Directions, which apply specially to Medical
Requirements :;—...
" (II) Pilot's Licence for Passenger or Goods Aircraft and
Navigator's Licence.
" 49. In the following paragraphs 50 to 53D the word
' licence ' means a pilot's licence to fly aircraft carrying
passengers or goods for hire or reward or a licence to navigate
aircraft.
....
" 50A. Preliminary Examination.—This will be based on
the following requirements :—
" The applicant must be of the male sex, must have the
complete use of his four limbs, must not be completely
mental, moral or physical defect which will interfere with
the safety of air navigation.
'' (b) Pilots of aircraft carrying passengers or goods for hire
or reward and navigators may not enter upon their duties
before 19 or after 45 years of age.
Some rules are changed by society and need to be whether everyone is in favour or not.
Brickhead wrote:
23% of private member bills that make it to first reading become adopted
The ones with merit do, the time for this one is long overdue given Canada's stance on this subject since 1986.
Challenges to the ICAO Age Standard
As early as 1986, Canada, having earlier abandoned its National upper age limit on Constitutional grounds, filed a "difference" with ICAO on its age limits, requesting, that the ICAO limits be modified or revoked.

International Civil Aviation Organization (ICAO) 12/09/2006 01:46 PM

http://www.icao.int/cgi/goto_m.pl?/icao/en/new.htm Page 1 of 11

AN-WP/8074
Appendix B
APPENDIX B

COMMENTS OF STATES AND INTERNATIONAL ORGANIZATIONS
IN RESPONSE TO STATE LETTER AN 5/16.1-05/17
REFERENCE: Attachment A, pages A-2 and A-3
STATES AND INTERNATIONAL ORGANIZATIONS' COMMENTS
Agreement with comments

Argentina ....
International Civil Aviation Organization (ICAO) 12/09/2006 01:46 PM

http://www.icao.int/cgi/goto_m.pl?/icao/en/new.htm Page 2 of 11

Canada

Canada is in agreement with comments.

Canada would like to see the age restriction removed entirely as the Canadian Charter of Rights and Freedoms, Article 15, makes limitations based purely on age, discriminatory. Canada currently does not curtail the privileges of pilots who have attained their 60th birthday. Canada has no objections to pilots who are 60 years of age or older, holding a medically valid ICAO Contracting State licence, from flying foreign registered aircraft within Canadian airspace.
.....

This amendment will not change the fact that Canada has filed a difference to 2.1.10.
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Rockie
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Re: Mandatory Retirement to be Eliminated in Parliament

Post by Rockie »

yycflyguy wrote:
Could we please keep this conversation relevant and the nonsense out of it?
:smt017 I thought this was a thread about discrimination or is it only how it applies to you?
No it's not about me, it's about mandatory retirement and how it applies to every single person in Canada including Air Canada pilots. But if you want to waste a few seconds talking about women ski jumpers, they failed to make their sex discrimination case. End of discussion. Can we get back to the subject at hand now?
Brick Head wrote:I think it is quite relevant. People seem to forget, some people anyway, that the rights afforded within the CHRA are always to be balanced against the needs of society. Most to the time this only happens with age discrimination. Rarely with sexual discrimination. But as Flyguy points out even it apparently has limits.
Have you been paying attention to how Canadian society is treating mandatory retirement? Do you think Air Canada pilots are immune to the law, or mandatory retirement is somehow OK at Air Canada because...holy cow...we have a contract?
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CD
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Re: Mandatory Retirement to be Eliminated in Parliament

Post by CD »

Indeed, it is a societal issue...
Recession intensifies GenX discontent at work

Nov 15, 1:41 PM (ET)
By MARTHA IRVINE

CHICAGO (AP) - They're antsy and edgy, tired of waiting for promotion opportunities at work as their elders put off retirement. A good number of them are just waiting for the economy to pick up so they can hop to the next job, find something more fulfilling and get what they think they deserve. Oh, and they want work-life balance, too.

Sounds like Gen Y, the so-called "entitlement generation," right?

Not necessarily, say people who track the generations. In these hard times, they're also hearing strong rumblings of discontent from Generation X. They're the 32- to 44-year-olds who are wedged between baby boomers and their children, often feeling like forgotten middle siblings - and increasingly restless at work as a result.

"All of a sudden, we've gone from being the young upstarts to being the curmudgeons," says Bruce Tulgan, a generational consultant who's written books about various age groups, including his fellow Gen Xers.

This isn't the first time Gen Xers have faced tough times. They came of age during a recession and survived the dot-com bust of 2000. In recent years, though, more members of the generation - stereotyped early on as jaded individualists - had families or began settling down in other ways. It was time, they thought, to enjoy the rewards of paying some dues.

"We were starting to buy into the system, at least to some extent," Tulgan says, "and then we got the rug pulled out from under us."


Now, in this latest recession, nearly two-thirds of baby boomer workers, ages 50 to 61, say they might have to push back their retirement, according to a recent survey from Pew Research.

Meanwhile, on the other end of the age spectrum are Gen Yers, who are often cheaper to hire and heralded for their coveted high-tech knowledge, even though many Gen Xers consider themselves just as technologically savvy.

"It's so annoying," says Lisa Chamberlain, another Gen Xer who wrote the book "Slackonomics: Generation X in the Age of Creative Destruction.""First, it was always the baby boomers overshadowing everything. Then there was this brief period in the mid-'90s where Gen X was cool.

"Now it's, 'What are the new kids doing?' It's like 'Yo, hello, the Google guys are Gen Xers.'"

They can sound a little whiny. But there's also some evidence that Gen Xers really are being taken for granted at work.

One survey done this year for Deloitte Consulting LLP, for instance, found that nearly two-thirds of executives at large companies were most concerned about losing Gen Y employees, while less than half of them had similar concerns about losing Gen Xers.

The assumption is often that Gen Yers are the least loyal and most mobile, says Robin Erickson, a manager with Deloitte's human capital division.

However, she points out that a companion survey of employees found that only about 37 percent of Gen Xers said they planned to stay in their current jobs after the recession ends, compared with 44 percent of Gen Yers, 50 percent of baby boomers and 52 percent of senior citizen workers who said the same.

Everyone surveyed worried about job security. Gen X and Gen Y were most likely to complain about pay. But a "lack of career progress," was by far the biggest gripe from Gen Xers, with 40 percent giving that as a reason for their restlessness, compared with 30 percent of Gen Yers, 20 percent of baby boomers and 14 percent of senior workers.

Gen Yers, meanwhile, were more likely than the other generations to cite "lack of challenges in the job" as a reason they would leave, while baby boomers more often chose "poor employee treatment during the downturn" and a "lack of trust in leadership."

The Deloitte study warns of a "resume' tsunami" once economic recovery begins, especially among Gen Xers, and notes that many executives were largely unaware of employee complaints unrelated to money.

Such findings don't surprise Rich Yudhishthu, a 37-year-old Gen Xer who's a business development consultant from Minneapolis.

"The lack of promotional opportunities has pretty much killed job loyalty within a generation," he says.

Liza Potts, a 35-year-old professor at Old Dominion University in Norfolk, Va., agrees, but also notes that the disillusionment took hold for many of her peers as far back as childhood.

"Many of my friends had hoped to have jobs like their parents - places they would stay forever that would take care of them like they did their parents. But then we saw that start to crumble for our folks," she says, recalling friends whose fathers and mothers got laid off from companies such as IBM or had to relocate.

Now worried about their own foreclosures, debt and unemployment, her generation is left to do the soul-searching their parents did.

"Is there still time to become something different? Must we just accept where we are? Is there time to innovate elsewhere?" asks Potts who left her own career in the software and Internet industry for a life in academia. It's meant less money, she says, but also more freedom to choose her work hours and projects.

In Chicago, 40-year-old real estate agent Adon Navarette has taken on extra jobs to make it, from consultant for an energy supply company to starting his own health and wellness business. He's heard his peers sniping about other generations, but also thinks their experience with other rough economic patches makes them resilient, too.

It's a pivotal moment, he says.

"What's going to define me as a Gen Xer is how I come out of this. What's going to define me is, 'What have I done to allow myself to take advantage of the market when the market turns around?'" he says.

Sometimes, it means working for less money.

Jon Anne Willow, co-publisher of ThirdCoastDigest.com, an online arts and culture site in Milwaukee, is among employers who've recently been able to hire more experienced candidates for jobs traditionally filled by 20somethings.

They're hungry to work, she says. And as she sees it, that gives her fellow Gen Xers and the baby boomers she's hired a distinct advantage over a lot of the Gen Yers she's come across.

"When the dust settles, they'll be exactly as they were before and we'll just have to sift through them and take the ones that actually get it and hope the rest find employment in fast food," she quips.

Spoken like a truly jaded Gen Xer.
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Clyde River
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Re: Mandatory Retirement to be Eliminated in Parliament

Post by Clyde River »

"within Canadian airspace"...

Is that ok with the 60+ group? At 65, then what?

There is assumption that the "right" will be retroactive. AC will have to fold to if that is required. The 60+ group may be "right", but not for themselves. They may be fighting for my right to extend past 60 though.

I'm kind of ambivalent at this point. I see both sides to some degree.

I disagree that there is a right to extend past 60 for the retiring-now gen, but if you want to implement and extension to a new "normal" age I can comprehend that notion. If this is for all federal employees, then imo, there must be a test for competency. That doesn't mean that test hast to start a 60, but maybe there should be more tests and evaluations for the "right" to keep a job throughout one's career in other fields than pilots.

If a pilot fails a medical, they are off the line. As it stands now, flight attendants have no requirement to pass a fitness standard. IMO, should the age limite be extended, maybe a standard of some sort should be implemeneted for flight attendants too. After all, the claim by CUPE is that flight attendants are not there to serve passengers, but are there for safety requirements. As naive as that notion might be, there is still a requirement to perform in an emergency. If someone can not fit through the overwing escape window, they can not do their job!! If you need a walker, or cane, you can not do the job!! (extreme I know, but there has to be SOME standard.)

Clyde
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Rockie
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Re: Mandatory Retirement to be Eliminated in Parliament

Post by Rockie »

Clyde River wrote:There is assumption that the "right" will be retroactive.
Some people are making that assumption, but I don't think it will be. Time will tell who is right.
Clyde River wrote:I disagree that there is a right to extend past 60 for the retiring-now gen,
As of August 28, 2009 there is according to the HRTC. Every pilot we cashier after that date has the right to stay. But since we're getting rid of them despite the ruling they will not only have the right to come back, but I think they will be able to sue for damages.
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Martin Tamme
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Re: Mandatory Retirement to be Eliminated in Parliament

Post by Martin Tamme »

Rockie wrote:
In early 2006 the MEC took the position that they were against 60+, and then put a vote to the membership with the following text:

QUESTION:

Do you support the MEC’s position to maintain the
Age 60 retirement provisions?

FOR YES PRESS (01) FOR NO PRESS (02)


There was no examination of the issue beforehand. There was no balanced analysis or discussion of the pros and cons. No look into the future at which way Canadian society was going regardless of the MEC's wishes. In other words, the fix was in to ensure the pilots supported what the MEC wanted and had already decided to do.

Of the 3083 eligible members only 1840 cast votes. 1382 decided to support the MEC's position and 458 voted no. Keep in mind there was absolutely no information given to the members prior to this vote. That was over 3 years ago.



...and in May of 2008 (just over a year ago), the MEC came out with the following survey to determine if the pilots feel the same way - this is after the Vilven/Kelly hearings, which got a lot of airplay, and the pilots got to follow the play-by-play with official court transcripts throughout the proceedings. I'm sure by that time, most of the guys were aware what this was about if they weren't in 2006.

Over 80% of the pilots completed the following survey. Guess what the result was?


Image
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Re: Mandatory Retirement to be Eliminated in Parliament

Post by Martin Tamme »

Rockie wrote:Do you think Air Canada pilots are immune to the law

Can you please show us where within the Canadian Human Rights Act it is written that terminating someone at the normal age of retirement is illegal? In actual fact, it says the exact opposite.

As the current law stands, it is not illegal if someone is forced to retire at the normal age of retirement. Othewise, why would we even need this thread (Mandatory Retirement to be Eliminated in Parliamant)? If the present law is legal (which was confirmed by the Supreme Court of Canada numerous times thus far), and Parliament subsequently changes the law, how can all those who were affected by the law prior to the change have a case to be allowed to come back?

Even the US did not make the law retroactive when they made the change.
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Re: Mandatory Retirement to be Eliminated in Parliament

Post by rudder »

Martin Tamme wrote:
Even the US did not make the law retroactive when they made the change.
That facet of the law that was enacted in the US was as a result of input from ALPA that supported the revised legislation. Is ACPA offering input now or just holding its breath and turning blue :oops:
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Rockie
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Re: Mandatory Retirement to be Eliminated in Parliament

Post by Rockie »

Martin Tamme wrote:Can you please show us where within the Canadian Human Rights Act it is written that terminating someone at the normal age of retirement is illegal? In actual fact, it says the exact opposite.
I'm sure you've read this. It is the HRTC's decision from August 28th. This is the date ACPA and Air Canada lost the case, and not only will there be a cease and desist order (why should one be required?) but every pilot forced to retire after that date has the right to come back and probably seek damages.

V. CONCLUSION

[155] The Tribunal has concluded that the respondents have not met their onus under s. 1 of the
Charter. Section 15(1)(c) of the CHRA is not a reasonable limit on the complainants’ rights under
s. 15(1) of the Charter. Therefore, we refuse to apply s. 15(1)(c) to the facts of this case.

[156] The Tribunal has also concluded that the respondents have not established that the
mandatory retirement provision in the collective agreement is a BFOR within ss. 15(1)(a) and
15(2) of the CHRA.

[157] For these reasons the Tribunal finds that the complaints of Mr. Vilven and Mr. Kelly have
been substantiated.

VI. REMEDY

[158] The complainants seek a number of remedies including reinstatement; restoration of
seniority and service; damages for lost income, as well as lost pension and other benefits. The
Commission asks for a cease and desist order and significant revision to the respondents’
workplace policies on mandatory retirement.


[159] These requests involve considerable readjustment to the current workplace regime and
their disposition will require much more information than has been presented to the Tribunal.

[160] Accordingly, it will be necessary to provide further evidence and submissions taking into
account this decision. A timetable for this will be established in consultation with the parties. The
Tribunal remains seized with this matter for the purposes of remedy.

Martin Tamme wrote:As the current law stands, it is not illegal if someone is forced to retire at the normal age of retirement. Othewise, why would we even need this thread (Mandatory Retirement to be Eliminated in Parliamant)? If the present law is legal (which was confirmed by the Supreme Court of Canada numerous times thus far), and Parliament subsequently changes the law, how can all those who were affected by the law prior to the change have a case to be allowed to come back?

Even the US did not make the law retroactive when they made the change.
I agree with this to a point. Mandatory retirement law has not yet changed in Canadian Law, but forcing someone out under the terms we have been is according to the HRTC. Prior to August 28th I agree won't be retroactive, but the rules have changed after that date which changes the situation drastically.
Martin Tamme wrote:...and in May of 2008 (just over a year ago), the MEC came out with the following survey to determine if the pilots feel the same way - this is after the Vilven/Kelly hearings, which got a lot of airplay, and the pilots got to follow the play-by-play with official court transcripts throughout the proceedings. I'm sure by that time, most of the guys were aware what this was about if they weren't in 2006.

Over 80% of the pilots completed the following survey. Guess what the result was?
The survey you refer to was the WAWCON survey if I'm not mistaken. I'm sure you'll correct me if I'm wrong, but I can find no evidence of any other survey conducted in May of last year or since then. The actual participation rate in that survey as reported by ACPA was 67%, and the results have never been released. If you have information on how those two questions were answered by those that participated I would love to hear it.

There has been a concentrated campaign from our union and very vocal pilots against 60+. You could say it has been borderline hostile. There has been no examination of the pros and cons, or analysis of the benefits to our membership and pension. Until that is done any vote or poll is illegitimate. In any campaign preceding a vote both sides are afforded an opportunity to state their case so that the electorate can make an informed choice. We have never been given that opportunity. And as I have stated numerous times before, this is happening regardless of our wishes and we are not being asked our opinion. The law is changing. Canada is changing. Just how long do you want us to keep up this state of denial before we start to deal with reality?
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Brick Head
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Re: Mandatory Retirement to be Eliminated in Parliament

Post by Brick Head »

Rockie wrote:
Have you been paying attention to how Canadian society is treating mandatory retirement? Do you think Air Canada pilots are immune to the law, or mandatory retirement is somehow OK at Air Canada because...holy cow...we have a contract?
Rockie,

I agree with you. It is coming. The question really is just a matter of when and in what form. The issue now for the respondents, whether you realize it or not, really revolves around retaining the collective bargaining rights to implement as ACPA and AC see fit.

But this has nothing to do with the contract. The contract must follow the law but the law has not changed. Mandatory retirement for federally regulated employees is still legal as long as the age is normal for the work being done. The exception still stands within the CHRA. What we have is the Tribunal refusing to apply the exception within the CHRA in AC's case. The Tribunal has refused to allow AC the rights afforded under the law. Essentially they are saying that the exception within the CHRA violates the CHRA. Well duh. That's why it is called an exception.

So follow me here. I agree. It is coming. The problem with a timely resolution is that we now have a Tribunal ruling that ignores the law. Yes this is quite often how the law evolves. In this case I believe it will also. But I also doubt what we are looking at now, will be the last say on the issue. Politicians in this country don't like touching hot topics. They let the the issue spiral through the courts until a final determination is made in court. Almost always the Supreme Court hears any issue that reinterprets the CHA. Same sex marriage, Euthanasia, now mandatory retirement. Neither ACPA nor AC brought forward the charter question. Had the ruling just been an age change to a new " normal", and didn't try to change the historical interpretation of the CHRA, we would be presently much closer to resolution. As it stands we are now locked in a process likely destined for the Sup Court before anyone knows what the final outcome will be.

The CHRT has been itching to address the issue of exceptions within the CHRA. Someone posed the question and they got their opportunity. That process is now underway. Do I believe change will come? Absolutely. It is clear to me that society is heading in that direction.

In essence we are being used by the Tribunal (because law makers are unwilling) to address public policy on the matter. But in the mean time we are in flux.

As it stands AC is not breaking the law. What has happened is a CHT has started the process of public policy change/evaluation as it pertains to mandatory retirement in Canada by refusing to implement an exception. In doing so they have triggered a slow process through the courts, that in my opinion has become far too common, to address/change a law the politicians refuse to touch.

As you can imaging appellate courts are reluctant to enforce change when the change is still fluid. Even less likely when the original law, as in this case, still stands.

If you want to blame someone for how long this will take? Blame the law makers. Or put blame on the Charter question being asked in the first place. But ACPA and AC did not put us in the process we are now in.

I know there is a private members bill out there to deal with it, that could clear it up immediately. The fact that no party has adopted it speaks volumes.
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Rockie
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Re: Mandatory Retirement to be Eliminated in Parliament

Post by Rockie »

Thoughtful post Brickhead, and I thank you for the tone of it as well.

There really is two "legalities" if you want to call them that. One is the mandatory retirement law that is going through the legislative process right now. It is true that it hasn't passed yet, but given the direction society is moving in it would be very strange indeed, and temporary, if it were not passed. Once it is passed then the HRTC is basically cut out of it.

What is illegal though and has been for some time is age discrimination. The body that determines what age discrimination is is the HRTC which gains its authority through the Human Rights Act. The HRTC ruled last August that forcing pilots to retire at 60 constitutes age discrimination, which is illegal. While ACPA and the Company are seeking a judicial review of the ruling the fact of the matter is they are right now breaking the law by practicing age discrimination.

If they win the case then we sit around and wait for either the next 70 cases to be heard and ruled upon, or the federal law regarding mandatory retirement to come into effect. In either case you agree age 60 is gone.

If they lose, last august is the date they started to break the law. Every pilot shown the door since that date will not only be entitled to their jobs back (since they are entitled to them now after age 60), but it is not hard at all to see them suing for damages. It will be a BIG, EXPENSIVE mess.

ACPA and the company are taking a huge risk in delaying this process and continuing to force people out the door. I don't understand why. At the very least they should be keeping guys on who wish to stay until the JR is complete. If they win that is a much smaller mess to clean up than if they lose. And BOTH should be laying the ground work for implementation in all the areas that will need to be addressed. Now is the time. Not later.
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Brick Head
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Re: Mandatory Retirement to be Eliminated in Parliament

Post by Brick Head »

Rockie,

What about AC's liability to 3400 pilots if they let people stay in their current position and at the end of the day that isn't what happens?

Their just in a pickle, brought on by a lack of clarity. Which is why in all likelihood we will see a stay granted after remedy.

I know you probably don't like that opinion but like I said in the post above. Bringing the Charter into this has opened a big ball of wax.
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Martin Tamme
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Re: Mandatory Retirement to be Eliminated in Parliament

Post by Martin Tamme »

Last year, following the Vilven/Kelly case, the CHRT said Air Canada was in a legal position to terminate all flight attendants over the age of 35 (the normal age of retirement for flight attendants at the world's legacy carriers). The Federal Court thereafter overturned the CHRT Decision, because the Decision was against the law.

Then the CHRT does a 180, and now allows flight attendants to work until they die, even though that again is against the law. I'm guessing the CHRT will be overruled once again. The CHRT is to enforce the law; they can't enact their own - that's a job for Parliament.
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Re: Mandatory Retirement to be Eliminated in Parliament

Post by Martin Tamme »

Rockie wrote: It will be a BIG, EXPENSIVE mess.

Not really. Isn't Air Canada presently paying every single retired pilot? I'll bet you that, that monthly cheque is more than what an EMJ 190 F/O makes... or even an A320 F/O.

They would have to show financial harm. They can't assume that they would have made B777 Captain wages had they remained.
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Rockie
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Re: Mandatory Retirement to be Eliminated in Parliament

Post by Rockie »

Brick Head wrote:Rockie,

What about AC's liability to 3400 pilots if they let people stay in their current position and at the end of the day that isn't what happens?
Air Canada has no obligation to provide career advancement to any pilot. They do have an obligation to comply with the law. If they are unsure of the details they should at least conduct themselves according to the spirit and intent of the law until more information is forthcoming. They are not doing that in this case. Age discrimination is against the law, and the HRTC says what AC is doing is age discrimination. Prudence suggests....
Martin Tamme wrote:
Rockie wrote: It will be a BIG, EXPENSIVE mess.

Not really. Isn't Air Canada presently paying every single retired pilot? I'll bet you that, that monthly cheque is more than what an EMJ 190 F/O makes... or even an A320 F/O.

They would have to show financial harm. They can't assume that they would have made B777 Captain wages had they remained.
The expense is bringing all those pilots back. The longer they delay while shoving guys out the door the more of them there are. More guys = more retraining = more expense. You can bet all those guys will want their wages repaid as well, plus damages if they are so inclined since Air Canada shouldn't be shoving them out the door in the first place. How will the pension moneys paid out so far be dealt with for those who come back? How happy will the people who moved up in their place be when told they have to go back? It will be the company and union footing the blame and rightfully so.

We have a ruling. Contest it if you wish, but common sense dictates complying with it while you do.
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Re: Mandatory Retirement to be Eliminated in Parliament

Post by Brick Head »

[quote="Rockie"]

Air Canada has no obligation to provide career advancement to any pilot. They do have an obligation to comply with the law. [quote]

Rockie think about that statement for just a second longer please.

It is called grievance. AC must follow the collective agreement until they have a mutually agreed upon change with ACPA. Doing anything unilaterally leaves them liable for any harm done to pilots on the property that at the end of the day wouldn't have happened.

Just imagine the mess if AC let people stay in their current position and then at the end of the day the agreement they have with ACPA is post 60 pilots must vacate widebody CA?

I think it would be useful look at how same sex marriage came to be. Because it too originated at the CHT. It too was a Charter issue. It too sought to reinterpret/change the CRA. It too had a financial component to it. (Survivor pensions, CCP survivor pension plans, spousal benefits, OAS and so forth.) The Tribunal ruling took nearly a decade to get through to the Sup court before it became the recognized law of the land.

I would like to point out that no one was legally married (Canadian gov't recognized) until after the Sup court ruled. Nothing was retroactive. No one (gov't, corporations) were held liable for lost benefit for same sex partners between the time of the Tribunal ruling and the Sup court ruling.

Why? Stays were granted along the way to prevent the courts from imposing something that at the end of the day may or may not stand.

I keep saying this but introducing the Charter issue has delayed any changes by years. Not only that but if the charter issue gets shot down by the appeals courts we revert back to 60 being normal where the process will restart.
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Rockie
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Re: Mandatory Retirement to be Eliminated in Parliament

Post by Rockie »

A contract may not contravene the law and the ruling last August renders that part of our contract, well...illegal. There is no grievance if the company is complying with the law which they would be doing in this case. But what's happening now is both the company and union are violating the law by continuing a practice that has been ruled discriminatory. They have no leg to stand on.

Plus when I say the company has no obligation to provide career progression to any pilot, that mean if events occur that prevent progression the company is not liable. No where in law or our contract with the company does it say each pilot will recieve an upgrade to the next higher seat in any given time frame, or that they are entitled to it in any way except by vacancy and seniority bidding.

There is not a court or arbitrator in the country that would rule against Air Canada for complying with this ruling.
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