CUPE (AC) Supports Those Opposing Mandatory Retirement

[vic777]

Reprehensible?!? Do you think that if an Air France incident were to arise that 65+ year old f/a's will be able to do the same job?? I don't, and I bet A LOT of the travelling public think the same way. This is inviting trouble in a big way. I am sure Transport will also have a say in this as well. Give your head a shake.

It's interesting that you bring up this accident in order to bolster your prejudice against Senior Citizens. Don't you realize that this accident was the result of the total incompetence of all the Pilots involved, all of whom were under Sixty years of age? Retirement should be based on medicals and simulators ... some Pilots would fly well into their Seventies while others would become simulator instructors in their Forties. Give your head a shake.

[Brick Head]

Doesn't that suggest that each complaint is not being addressed individually on its on merits?

No. Not necessarily. The same issues arose a number of times, in each proceeding. It is not uncommon for the decision-maker to render separate decisions, while addressing the issues independently. The key is that the decision principles be consistent, so far as the underlying facts are consistent.

Consistency may very well be the problem they are grappling with. Remedy is required to be consistent with the findings within the ruling. The rational for not allowing section 15(1)c to be saved by the charter was; since there are non discriminatory alternatives to protect the benefit system, as in use in other jurisdictions, why then use a discriminatory practice to protect it? Use the non discriminatory option instead to protect the benefit system.

It makes sense. But it means 15(1)c was not applied to the facts of the case on the grounds than an alternative method could be used in its absence.

The Tribunal now must produce remedy that permits alternative ways to protect the benefit system, or the rulings consistency and rational flies out the door.

ACPA for its part has highlighted this issue by taking the examples for which the Tribunal pointed to, as other non discriminatory alternatives of protecting the benefit system, within the ruling, and applied them to their position on remedy. Even went as far as applying them to V&K's back to work protocol.

Do these alternatives trade discrimination for discrimination?

If they do? Bye bye to the rulings logic, rational and ability to apply remedy consistent with the findings within the ruling.

If at the end of the day there are no alternative that can protect the benefit system in the absence of mandatory retirement, then this latest ruling may very well be heading in the same direction as it predecessor.

The recycle bin.

[Understated]

Consistency may very well be the problem they are grappling with.

My guess is that the Tribunal is not even thinking about protecting the benefit system. Rather it is trying to figure out how to deal with a damage award in the range of millions of dollars. And I don't mean just for the pilots, although their awards alone are in that range and increasing daily.

CUPE (AC Component) just released a follow-up bulletin a few minutes ago that states that five AC flight attendants filed a complaint re their mandatory retirement several years ago, but that that complaint has not even yet been referred to the Tribunal. Add that complaint to the complaints from the sales agents, the baggage agents and others, and Air Canada's liability continues to mount daily. Then you can add truckers, rail workers, longshoremen and others who are also before the Commission and the Tribunal in the log jam created by the Vilven-Kelly delayed decision, and you have a monstrous scenario for the Chairman to envisage before he hits the "send" button.

This case is not about the pilot compensation system, much as ACPA's myopic spokespersons would like everyone to think that it is. It is about mandatory retirement, in general, across the entire range of industries in the federal jurisdiction.

[accumulous]

My guess is that the Tribunal is not even thinking about protecting the benefit system. Rather it is trying to figure out how to deal with a damage award in the range of millions of dollars. And I don't mean just for the pilots, although their awards alone are in that range and increasing daily.

They may not be looking at either of those things. The benefit system is protected by affording everybody their basic individual rights, and that is the right to work past 60. If Vilven, Kelly, or whomever, is afforded their basic individual right to work past 60, as they should be as evidenced by the recent decision, then so should everybody else be afforded that right, and have the option to exercise that right. That's the consideration. Almost NONE of the pilots currently on the system seniority list will accrue anything like 35 years pensionable service by age 60 and so by affording all of them the right to work past 60, they will be in the same rights boat as the complainants. You can dance around that all you like but at the end of the day the overriding consideration is rights based, on one of the prohibited grounds of discrimination. Period. It would be nice to delay things for another 10 years until a bunch of guys are permanently gone, but the fact is, V-K have already been awarded an offer of reinstatement, however that came under an MOA that was contrived contrary to major sections of the ACT. It was illegal. Against the law. Contrary to the ACT. How many different ways does that need to be spelled.

Is the Tribunal grappling with the award?? Doubt it. Read all the previous decisions. They're all pretty much the same. The ones who need to be trying to figure out how to handle the damages are the ones engaged in the act of discrimination, not the courts. Damages are there to remind people that if they engage in flagrant discrimination, there are great big penalties for that. The net result is that if the next group that comes along, with thoughts of engaging in open discrimination, takes the time to read the various decisions on the previous cases, then the thrust of that is to coerce those people to seek other ways to deal with the situation that are non-discriminatory.

[Brick Head]

Consistency may very well be the problem they are grappling with.

My guess is that the Tribunal is not even thinking about protecting the benefit system.

Understated,

For you I understand this is just about mandatory retirement and not compensation systems. However that opinion is not consistent with the ruling.

Alternatives that preserve the benefit system is central to the logic within the ruling. Why? Because Mandatory retirement is still legal in Canada. The Tribunal simply stated because there are other options don't use mandatory retirement to protect the benefit system anymore. So I disagree. I think it is a big, possibly huge issue, and it will be interesting to see how the Tribunal deals with it.

To be clear I believe post 60 is coming. I'm just not convinced the present ruling will be the catalyst.

It is fine to say, as the Tribunal has. Do what the other jurisdictions do. Protect the benefit system another way. Just don't use mandatory retirement. But our deferred compensation system is like no other. I know of no other group that is as steep. The extreme measures required to preserve the benefit system with alternate means, while ending mandatory retirement seem........well discriminatory.

But if they are not allowed? Remedy will not be consistent with the ruling.

Caught between a rock and a paper shredder comes to mind.

Like I said it will be interesting to see how they walk the line. In the ruling they stated these alternatives taking place in other jurisdictions are not discriminatory. So why use something that is such as mandatory retirement? Now that they are getting a glimpse of how drastic those alternatives need to be to preserve in our case?

[Brick Head]

Is the Tribunal grappling with the award?? Doubt it. Read all the previous decisions. They're all pretty much the same.

Can you name another Federal Tribunal ruling that refused to allow the application of 15(1)c on the grounds that alternatives could be used to basically do the same thing as the exception (15(1)c) was designed to accomplish?

Yes at the provincial level this idea is not new.

However, even at the provincial level can you name anyone who has as steep a deferred compensation system as ours?

Can alternatives to preserve really be used in our case without trading discrimination for discrimination?

If that answer is no then this ruling won't stand.

[accumulous]

Can alternatives to preserve really be used in our case without trading discrimination for discrimination?

What is the other prohibited ground of discrimination that you are referring to. You are about to be awarded the right to work past 60 with a cease and desist order. That is not discriminatory. That puts you on the same footing as everybody else.

[Understated]

For you I understand this is just about mandatory retirement and not compensation systems. However that opinion is not consistent with the ruling. Alternatives that preserve the benefit system is central to the logic within the ruling. Why? Because Mandatory retirement is still legal in Canada. The Tribunal simply stated because there are other options don't use mandatory retirement to protect the benefit system anymore.

We come to different conclusions regarding the current legality of mandatory retirement in Canada. You suggest that the deferred compensation scheme of this particular collective agreement must survive, so therefore the Tribunal and the court will allow alternative means to accomplish that objective.

You are reading the 2009 Tribunal decision as saying, mandatory retirement is permissible because of the need to protect the deferred compensation system, and because there are other means to satisfy the social requirements.

That's not the way I read the Tribunal's decision. In fact, I read it exactly the opposite way. I see the Tribunal saying that because there are alternatives to protect the benefit system, mandatory retirement is not only not necessary, it is offensive to the principles of the Charter, and cannot survive the Section 1 challenge.

How did I get to this conclusion? I went back to the 2009 Tribunal decision and read it line by line. The Tribunal, the sole body in the federal jurisdiction with the authority to, at first instance, determine the issue, has found that the exemption clause under the Act fails the Section 1 Charter test, meaning that the Federal Court decision that the provision offends the Charter equality rights is undisturbed. Mandatory retirement is no longer legal.

What the Tribunal was dealing with is a Charter Section 1 determination. Given that the Federal Court found that the exemption clause violates Section 15 of the Charter, is it saved by Section 1 (reasonably justified)?

I simply cannot see how, when the Tribunal says that alternatives to mandatory retirement exist that allow the union to accomplish its objectives in protecting the deferred compensation scheme without imposing mandatory retirement, that mandatory retirement can survive under Section 1 of the Charter. As I read it, the Tribunal came to precisely the opposite conclusion.

Your analysis deals with only one of several steps in the required sequence of analysis. One step in the sequence of absolute tests or hurdles that had to be overcome. The collective agreement provison failed all of the tests.

Let’s start from the beginning. The Tribunal decision dealing with the Charter Section 1 argument has a number of steps and prongs. As I understand the law as a layman, not as a lawyer, correct me if I am wrong, every step of the Oakes test must be successful in order for the violation of Section 15 of the Charter to be, as the Tribunal says, “reasonably justified as prescribed by law.”

First, the Tribunal examined the current context of the decision and distinguished it entirely from the 1990 Supreme Court of Canada cases:

Paragraph 21: In the 16 years since the Supreme court of Canada's decision, there has been a sea change in the attitude toward mandatory retirement...

Paragraph 24: The evidence in the present case establishes that there are significant differences between the factual and social context in which the McKinney decision was rendered and the present case.

Paragraph 38: The essence of the right to equality is that no one is denied opportunities that have nothing to do with inherent ability.

Paragraph 39: Mandatory retirement is nonetheless an affront to the right to equality.

Paragrpah 45: The alternatives to mandatory retirement, which are in use in other jurisdictions, effectively preserve the benefits of the current system without infringing a constitutionally protected right.

Paragraph 47: There is no dispute that in jurisdictions that have abolished mandatory retirement, deferred compensation systems, seniority and other such socially beneficial systems have survived.

Paragraph 48: In light of this fact, it might be argued that preventing [Tribunal's emphasis], rather than permitting age discrimination beyond the normal age of retirement has become a pressing and substantial need in society.

The Tribunal, then, at every single step and every prong of that test, proceeds to hammer the union on the facts. Result: Fail. Fail. Fail. Fail. It summarizes it as follows:

Paragraph 50: We have concluded that it can no longer be said that the goal of leaving mandatory retirement to be negotiated in the workplace is sufficiently pressing and substantial to warrant the the infringement of equality rights. FAIL!

Paragraph 56: The normal age of retirement criterion is therefore not rationally connected to the goal of allowing for negotiated mandatory retirement. FAIL!

Paragraph 58: Even allowing for a range of reasonable alternatives, providing an exemption for mandatory retirement that corresponds to the normal age of retirement in the industry, fails this part of the test. FAIL!

Paragraph 59: Far less intrusive options can be contemplated.

Paragraph 70: In the Tribunal’s view, the negative effects of the infringement of depriving individuals of the protection of the Act outweigh the positive benefits associated with s. 15(1)(c). FAIL!

It then says, in Paragraph 71: For these reasons, the Tribunal finds that the Respondents have not met their onus under Section 1 of the Charter.

So please, in view of the Tribunal's finding of failure on every step and every spoke of the required tests, all of which must be satisfied in the affirmative, how you think that the Tribunal, or the Federal Court in the judicial review, is going to uphold the Section 1 requirement, on the basis of facts applicable only to this union, in regard to the law that applies to everyone?

[Brick Head]

Understated,

It looks like my paper shredder type remarks have redirected the focus from why I chirped in on this thread. That is my fault. The remarks were directed at the possibility that questions may be sent back to the Tribunal over "alternatives." We all know what happened last time. A total different direction.

As for your assertion that the Oak's test, and one failure does not equate to a total failure, you are also correct in practice. However there is a problem with the argument in a case where you are applying the Oak's test to something that is obviously discriminatory but exempted from the law. Mandatory retirement would have failed the Oak's test from inception. That is why it is an exception to the law. A law that hasn't changed as of yet. To now say it is discriminatory? Well duh. Of course it is. To now say it fails the Oak's test? Of course it does. It always would have.

So why all of a sudden a different ruling when the law protecting a discriminatory practice 15(1)c hasn't changed? The answer comes from the concept that if a non discriminatory alternative can be employed to do the same thing, why use the discriminatory one? Without that logic Mandatory retirement is still required, and is exempted from the law, as the law is presently written.

There is a lot of misunderstanding when lay people don't see the connection between 15(1)c and deferred compensation benefits systems. Reading the ruling without first understanding the intended purpose behind 15(1)c sets up individuals to miss much of what is being discussed. 15(1)c specific reason for existence is based on the requirement that deferred compensation systems require individuals to pass on the benefit at a predetermined point in time. If they don't they will take someone else s deferred income. 15(1)c purpose is to ensure people live up to that responsibility. So if we are going to employ alternatives to 15(1)c they will need it do the same thing, force individuals to pass the benefit at a specific point in time, if they are to effectively preserve the benefit system.

All of this is why I chirped in on the word "consistency". Remedy is required to be consistent with the ruling. Alternatives to 15(1)c is a center piece to the ruling. Are they grappling with it? My guess is yes.

The Ontario teachers for example have employed the very alternative to mandatory retirement ACPA is presently suggesting. Since the provincial law change, at 65 they leave their position and collect their pension. Then have the option to fill in for Maternity/sick leave. It is how they chose to eliminate the requirement to retire, but still protect the benefit system by forcing people to pass the benefit on. Actually they have a pretty good gig. Double dipping.

But their pay structure is flat. Will it work in our case, in a system where the pay structure is so steep, in a system steeped in traditional status concepts, without becoming a situation that merely trades discrimination for discrimination?

If the answer is no. And I will be much more clear here this time. If the answer is no this will eventually be sent back to the Tribunal for attempt number 3.

This would all be much faster if the law makers would just get down to setting sound public policy on the issue.

[Understated]

There is a problem with the argument in a case where you are applying the Oak's test to something that is obviously discriminatory but exempted from the law. Mandatory retirement would have failed the Oak's test from inception. That is why it is an exception to the law. A law that hasn't changed as of yet. To now say it is discriminatory? Well duh. Of course it is. To now say it fails the Oak's test? Of course it does. It always would have.

I am confused. “Exempted from the law?” Do you not have a clear picture of the process here?
That exemption is what is being tested according to the Oakes principles. The Tribunal clearly stated that by its failure to meet the Oakes test, mandatory retirement is not legal in Canada. Although the Tribunal’s decision is technically not binding on other quasi-judicial bodies or even on itself, the decision is extremely influential and is likely to be followed by others, including arbitrators. Do you honestly think that the Tribunal would decide the issue differently when faced with the same question by another group of pilots or by another union?

The Federal Court will pass judgment on the Tribunal’s decision in its upcoming judicial review. Once the Federal Court determines that the exemption is not saved by Section 1, it is over. That decision, subject to appeal by the Federal Court of Appeal and by the Supreme Court of Canada, will have the same effect as if Parliament repealed the exemption.

You say that the Section 15(1)(c) exemption could not pass the Oakes test from inception. That is not correct. The equivalent provision under Ontario law did pass the test in the Supreme Court decisions around 1990. It can’t now, because, as both the Tribunal and the Federal Court have found, the social circumstances are different now; public policy regarding mandatory retirement has wholly shifted against it. All the provinces have abandoned it, save for, in limited circumstances, New Brunswick, and this is the last segment of the federal jurisdiction that is still supporting it.

Even in the federal government, there is a current bill before Parliament to repeal the section.

The only issue before the Tribunal in that segment of the decision was whether the Section 1 Charter test was met. I still fail to see the connection between the test that the Tribunal used to assess whether the Section 1 test was met and the deferred compensation argument that you are putting forward. That is not the issue that the Tribunal was asked to address in its decision of last year, and as I understand it, that is not the issue that the Federal Court will deal with in the upcoming judicial review. In fact, the Federal Court clearly stated that the legislative anomaly of allowing discrimination, so long as the discrimination was applied against everyone, didn’t make any sense, and the way to deal with it was with the Charter. The Court found the exemption to violate the equality provisions of the Charter, and sent the issue back to the Tribunal to address only the Section 1 issue in that segment of the decision.

You say, “Reading the ruling without first understanding the intended purpose behind 15(1)c sets up individuals to miss much of what is being discussed.” You must remember that when this provision was enacted, there was no Charter of Rights and Freedoms. That changes everything, for if the mandatory retirement exemption violates the equality provisions of the Charter (as the Federal Court found) and if it is not saved by Section 1 (as the Tribunal found), it is over. Period.

There is one other flaw in your argument re the deferred compensation scheme, as I see it. Let’s suppose that Section 15(1)(c) is upheld, but that Air Canada pilots don’t account for the majority of pilots in Canada in that “similar work” classification. In other words, if ACPA loses the Thwaites decision, the mandatory retirement provision in the collective agreement is toast, regardless of what kind of compensation scheme is in place, deferred or otherwise. In that circumstance ACPA will be in the same situation as if the exemption is either struck down by the court or repealed by Parliament, and that outcome will result without any Tribunal or court engagement in discussion of the compensation scheme, period. Which is one more reason, in my opinion, why your argument is irrelevant to what is actually going to happen here. ACPA is going to have to find viable, legal alternatives to deal with the consequences of the loss of mandatory retirement, immediately.

That outcome is something that ACPA should have been working on since 2006, at the latest, in my humble opinion.

[Brick Head]

The only issue before the Tribunal in that segment of the decision was whether the Section 1 Charter test was met. I still fail to see the connection between the test that the Tribunal used to assess whether the Section 1 test was met and the deferred compensation argument that you are putting forward. That is not the issue that the Tribunal was asked to address in its decision of last year, and as I understand it, that is not the issue that the Federal Court will deal with in the upcoming judicial review. In fact, the Federal Court clearly stated that the legislative anomaly of allowing discrimination, so long as the discrimination was applied against everyone, didn’t make any sense, and the way to deal with it was with the Charter. The Court found the exemption to violate the equality provisions of the Charter, and sent the issue back to the Tribunal to address only the Section 1 issue in that segment of the decision.

You say, “Reading the ruling without first understanding the intended purpose behind 15(1)c sets up individuals to miss much of what is being discussed.” You must remember that when this provision was enacted, there was no Charter of Rights and Freedoms. That changes everything, for if the mandatory retirement exemption violates the equality provisions of the Charter (as the Federal Court found) and if it is not saved by Section 1 (as the Tribunal found), it is over. Period.

That outcome is something that ACPA should have been working on since 2006, at the latest, in my humble opinion.

Understated,

I agree with virtually everything you just said. Very well written by the way.

The key point where we do not see eye to eye is the concept of how deferred compensation benefit systems are linked to the charter issue. The purpose behind 15(1)c is the benefit system, period, force people to pass on the benefit at a specific point in time specifically, which makes it inextricably linked to a charter issue trying to eliminate it. I think many have jumped to a false conclusion, when assuming that since 15(1)c was not saved by the charter, automatically that means by default its purpose is also finished. Or as you put it. It's over period.

That position means by default, deferred compensation systems are now finished. Not true. In fact the Tribunal reinforced the notion of deferred compensations systems by suggesting they be protected with alternate means.

15(1)c has merely been the chosen method up to now. The Tribunal said use another methods. That is exactly what ACPA has put forth. Other methods that you are now calling illegal. You do so in the face of an award which talks about using alternatives as rational for not allowing 15(1)c to be saved. You do so in the face of provincial jurisdictions doing exactly what you now call illegal, and which are actually referenced within the award as non discriminatory.

[Understated]

The key point where we do not see eye to eye is the concept of how deferred compensation benefit systems are linked to the charter issue. ... I think many have jumped to a false conclusion, when assuming that since 15(1)c was not saved by the charter, automatically that means by default its purpose is also finished. That position means by default, deferred compensation systems are now finished. Not true. In fact the Tribunal reinforced the notion of deferred compensations systems by suggesting they be protected with alternate means.

I think that we are making progress. I don't believe that the deferred compensation system is at all finished. It will definitely survive the elimination of mandatory retirement here, as it has elsewhere. And yes, there will have to be some adjustments, as you mention. The question becomes, what adjustments?

Now tell me, do you think 15-1-c will survive the JR, or will it not survive the JR?

Assuming that it does not survive the JR, where does that leave ACPA? From my perspective, once you kill the mandatory retirement exemption, we are left with the bare bones prohibition against age discrimination. In other words, you cannot use age as a parameter for making major modifications to the deferred compensation system, no matter how attractive that option may seem.

You can’t do what ACPA attempted to do in its deal to return the two pilots to work, without running afoul of the general prohibition against age discrimination. The alternatives chosen must meet the criteria of the statute, which that agreement did not.

[Brick Head]

The key point where we do not see eye to eye is the concept of how deferred compensation benefit systems are linked to the charter issue. ... I think many have jumped to a false conclusion, when assuming that since 15(1)c was not saved by the charter, automatically that means by default its purpose is also finished. That position means by default, deferred compensation systems are now finished. Not true. In fact the Tribunal reinforced the notion of deferred compensations systems by suggesting they be protected with alternate means.

I think that we are making progress. I don't believe that the deferred compensation system is at all finished. It will definitely survive the elimination of mandatory retirement here, as it has elsewhere. And yes, there will have to be some adjustments, as you mention. The question becomes, what adjustments?

Now tell me, do you think 15-1-c will survive the JR, or will it not survive the JR?

I don't think it is a slam dunk no. However the definite odds, IMO only are, 15(1)c as an exemption is done. However it will be done in the context of the V&K ruling, that alternatives are legally available that preserve the benefit system.

Assuming that it does not survive the JR, where does that leave ACPA? From my perspective, once you kill the mandatory retirement exemption, we are left with the bare bones prohibition against age discrimination. In other words, you cannot use age as a parameter for making major modifications to the deferred compensation system, no matter how attractive that option may seem.

Totally disagree. Again you make the assumption that once 15(1)c is done, the reason for its existence is also done. That alternatives can not be employed even though the very ruling that struck down 15(1)c says they can. Changes post JR will not be age related. They will be adjustments to make sure the collective pie is divided as was intended. That can not be accomplished until we know what the new rules will be for certain. That is not age discrimination. It is a collective bargaining issue and is not within the jurisdiction of the Tribunal. For example the Ontario teachers negotiated their changes after the provincial gov't struck down mandatory retirement. That was not considered discrimination. It was considered a collective bargaining issue dealing with the imposed changes.

You can’t do what ACPA attempted to do in its deal to return the two pilots to work, without running afoul of the general prohibition against age discrimination. The alternatives chosen must meet the criteria of the statute, which that agreement did not.

I am not going to defend specific alternatives as I have no idea where this will go. Some may stick. Some may not. Other ideas may be employed. Insurance is discriminatory period and will never change in that regard. If it did? Insurance would no longer exist. But it does not change the fact that 15(1)c was not applied to the facts of the case in part because alternative methods could be used in its absence to effectively preserve. So at the end of the day the V&K ruling affords ACPA the right to protect the benefit system by other means and deferred compensation systems come with the responsibility to pass the benefit at a specific point in time. That is the route the Tribunal chose.

I have already expressed concern that your statement just above may be correct. However that could mean remedy may never be consistent with the ruling. That would prove to be a problem. We will see.

[Understated]

Totally disagree. Again you make the assumption that once 15(1)c is done, the reason for its existence is also done. That alternatives can not be employed even though the very ruling that struck down 15(1)c says they can. Changes post JR will not be age related. They will be adjustments to make sure the collective pie is divided as was intended. That can not be accomplished until we know what the new rules will be for certain. That is not age discrimination. It is a collective bargaining issue and is not within the jurisdiction of the Tribunal. For example the Ontario teachers negotiated their changes after the provincial gov't struck down mandatory retirement. That was not considered discrimination. It was considered a collective bargaining issue dealing with the imposed changes.

I don't quite understand how you say that the changes will "make sure the collective pie is divided as intended," but that changes will not be age-related. From what you have told us about what the Ontario teachers did, the changes were age-related. They maintained their mandatory retirement provision based on age 65, but made a qualification that teachers could come back in a different classification. How is that not age-related? It creates a new classification of worker, based on age alone.

Just because it is a collective bargaining issue does not mean that it is exempt from the statutory requirements to avoid discrimination on the basis of age. We should have learned that, if nothing else, from the past four years. All collective bargaining issues come within the purview of the Tribunal, if they purport to alter terms and conditions of employment, based on age.

Do you know whether the Ontario teachers' agreement provision was ever challenged subsequent to the abolition of mandatory retirement? If it was never challenged, how do we know whether it will withstand such a challenge under the law? Sure the union and the employer can negotiate whatever they want. That doesn’t mean that it is legal.

My point is that once the mandatory retirement exemption is not available, that does not automatically give the union or the employer the ability to accomplish through the back door what they cannot accomplish through the front door, no matter how well-intentioned the purpose. There is no way, from what I have been told about the way the law works, that ACPA will be able to use age 60 as a marker to segment the pilots into two groups, as was attempted in the July memorandum. So what options does that leave?

[Raymond Hall]

Don't forget also, closer to the topic of this thread, that we still have to hear from the CIRB on the role that the union is playing in negotiating provisions that affect the rights of its members who are part of the minority that wishes to continue working past age 60.

The Board's decision re the DFR the complaint is now pending, and it is not inconceivable that the Board could impose restrictions that would significantly restrict the range of any "negotiations" re terms and conditions of work and wages, post-judicial review.

[accumulous]

In addition, why on earth would anybody try to impose a second tier blacklist against themselves.

Has any other flying organization in North America chosen to try to do this to its own membership? If WestJet or Jazz were fronting this issue, history shows it would be long ago finished like it was with all the others in a perfectly 'normal' way. Nobody at WestJet or Jazz or Transat is building a second string contract for their own membership when they hit their 60th birthday.

[Brick Head]

Don't forget also, closer to the topic of this thread, that we still have to hear from the CIRB on the role that the union is playing in negotiating provisions that affect the rights of its members who are part of the minority that wishes to continue working past age 60.

The Board's decision re the DFR the complaint is now pending, and it is not inconceivable that the Board could impose restrictions that would significantly restrict the range of any "negotiations" re terms and conditions of work and wages, post-judicial review.

Back to that word consistency again Raymond. At the end of the day remedy for V&K must be consistent with the ruling. This play you are making at the CIRB, may render that impossible to attain, if they act in the manner you suggest they might.

In fact this could be seen as a play to usurp the Tribunal's ruling on the issue of alternatives. Which is why your actions confuse me. If you were that unsatisfied with the ruling it should have been appealed.

If this whole quagmire of contradictions turns into further delays what then? Blame ACPA? Remember when you point three figures point back.

[accumulous]

This play you are making at the CIRB, may render that impossible to attain, if they act in the manner you suggest they might.

In fact this could be seen as a play to usurp the Tribunal's ruling on the issue of alternatives.

What are you referring to?

This?

Discriminatory policy or practice
10. It is a discriminatory practice for an employer, employee organization or organization of employers

(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment, that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination. [1976-77, c.33, s.10; 1980-81-82-83, c.143, s.5.]

http://www.efc.ca/pages/law/canada/cana ... t-1.html#5

Anybody know what the penalties are for that? Was the membership at large shown the contents of the MOA?

[Raymond Hall]

This play you are making at the CIRB, may render that impossible to attain, if they act in the manner you suggest they might. In fact this could be seen as a play to usurp the Tribunal's ruling on the issue of alternatives. Which is why your actions confuse me. If you were that unsatisfied with the ruling it should have been appealed.

I hope that this thread does not devolve into issues of motivation or purported motivation on the part of the contributors. That is what has killed previous threads where meaningful discussion of the legitimate issues was in progress, prior to the posts turning into a series of personal attacks.

Regarding the August, 2009 Tribunal decision, there was nothing to appeal. The Tribunal found a discriminatory practice. The remedy issue was dealt with in the subsequent hearing.

Nothing from the CIRB is going to change the pending remedy ruling from the Tribunal. Not only are the issues and jurisdictions separate, but the Tribunal was seized of the issues when the hearings closed in April. The Tribunal was not asked to rule on alternatives. Vilven & Kelly sought reinstatement. The Commission sought a cease and desist order. The Tribunal will decide the issues of seniority credit and damages. Given that neither the employer or the union opposed reinstatement, an order for reinstatement will issue with the Tribunal's decision.

There should be nothing confusing about the DFR complaint. It has two components, the general portion, and the MOA portion. The remedy sought with respect to the first part is to have the union cease breaching its (alleged) duty to the minority group of its members that oppose mandatory retirement by not only not representing them, but by supporting the employer's litigation seeking to uphold their termination of employment.

The remedy sought in the MOA portion is to have the MOA declared to be of no force and effect. The MOA purports to create a second class of pilot at Air Canada, based on age, that severely restricts their rights and benefits under the provisions of the collective agreement, in comparison to the rights and benefits of those who have not yet reached age 60. ACPA, in its submissions, did not deny the assertion that the MOA was age discriminatory; rather, it attempted to defend the agreement, on the basis of a purported need to maintain the discrimination in a manner consistent with what you are suggesting the Ontario teachers employed. Perhaps you were one of the individuals who drafted the MOA?

In any event, I suspect that we won't be waiting much longer for the Board to render its decision. The submissions were completed three weeks ago today.

[Brick Head]

Nothing from the CIRB is going to change the pending remedy ruling from the Tribunal. Not only are the issues and jurisdictions separate, but the Tribunal was seized of the issues when the hearings closed in April.

Correct. The CIRB's entrance into the foray will not change remedy. However it may render parts of the Tribunals V&K ruling null and void if the CIRB rules the way you would like them to. If the belief that non discriminatory alternatives can effectively preserve the benefit system turns out to be false, then the ruling itself becomes suspect as parts of the rational during the Oak's test was dependent on it. It is like your are shooting at something between your toes. Careful not to hit your foot.

The remedy sought in the MOA portion is to have the MOA declared to be of no force and effect. The MOA purports to create a second class of pilot at Air Canada, based on age, that severely restricts their rights and benefits under the provisions of the collective agreement, in comparison to the rights and benefits of those who have not yet reached age 60. ACPA, in its submissions, did not deny the assertion that the MOA was age discriminatory; rather, it attempted to defend the agreement, on the basis of a purported need to maintain the discrimination in a manner consistent with what you are suggesting the Ontario teachers employed. Perhaps you were one of the individuals who drafted the MOA?

Raymond,

Consistency. That rational is inconsistent with the V&K ruling, as it prevents alternatives from ever being employed that preserve the benefit system, as preservation requires a point at which people are required to pass the benefit. The end result, that you call discriminatory, is the direct result of how steep our deferred compensation system is and not the result of discrimination.

Did the Tribunal make a mistake? They may have, and you are shining a spotlight all over the potential flaw.

The author of the MOA, and submissions for remedy, was the Tribunal. All we did was copy and paste.

[accumulous]

preservation requires a point at which people are required to pass the benefit

The point at which people are required to pass the benefit is going to vanish because with a Cease and Desist order, among other things, will come the point at which 60 is no longer a barrier, as in ALL the other airlines in North America, and ALL pilots will be able to exercise their right to continue their employment, as the MAJORITY of all pilots in Canada do. Preservation comes with the extermination of the limit currently being imposed.

[Brick Head]

The point at which people are required to pass the benefit is going to vanish because ...............

You are saying the benefit system can not be preserved by alternative methods.

Again not consistent with the ruling.

[accumulous]

You are saying the benefit system can not be preserved by alternative methods.

Not true - it just doesn't need to be preserved with methods that suit your personal agenda to the exclusion of others, as entered into evidence in the recent illegal MOA. The correct method will encompass all pilots with the same contract covering all pilots, the same method as employed by every other carrier in North America.

[teacher]

Pass the medical - Check

Pass the recurrent training - Check

Still able to perform the job safely - Check

Fly as long as you frik'n want, contribute to the pension while you're working (no double dipping) and collect from it when you finally decide to leave. I don't understand what the big issue is, you folks aren't being forced to work past 60 right? just have the right to doit IF YOU CHOOSE. There's no frik'n way I'm work'n past 60 but hey if you want to FILL YOUR BOOTS! Stats have shown the the longer you work past 60 the shorter you live.

'Nuff said, freedom 60 or 55 if I can swing it!

[Inverted2]

So technically you would never have to retire. Work till you get diagnosed cancer or some other disease and go on disability till you die?