Federal Court Decision re V-K JR, February 3, 2011

[Brick Head]

That is everything in a nutshell. The mandatory (forced) retirement, is NOT allowing 2900, of the 3100 pilots at AC to obtain the "best pension possible."

777longhaul,

I must say at least you are expressing considered questions. It depends on what you refer to as a "better" pension. More money? Or the ability to retire earlier? If people stay beyond 60, those wishing to leave at 60 will do so with less because slower advancement will negatively impact pre and post retirement income. (last 5 lower average earnings). Our pension benefit is a balance of what individuals want. Earlier retirement is valued by some. For others it is the money. We are a collective which means we decide. If the majority decided more money is the priority then so be it. At last count however, it is now 82% opposed to fly past 60. Since we know most will not get a max pension, it tells me that the vast majority prefer the idea of earlier retirement over more money. That may not be your individual preference, but it doesn't matter. You joined a union.

The unions job is to provide the best possible benefit for its members. The benefit that the collective desires, not the benefit that the minority demand.

It will be the individual pilots choice, to retire, not forced out.

Again everything is a trade off. If people stay beyond 60 others will be forced to work longer for the same pre and post retirement benefit. We are a collective. Every action has consequences that need to be balanced. What priorities we want set for our pension benefit is the real issue. Retire early? Make more money? We can't have both.

How is Jazz doing it? They went to 65, long ago, and they are still flying, and still promoting pilots, etc etc. Did their plan implode?

Really? Your really going to ask that? Jazz has a deferred compensation system end loading the age of 65. They use mandatory retirement to protect their system. Why do you think a few of them are on here interjecting in the conversation. Your actions, if you are successful, will effect them negatively as well.

The option, to work longer, for 2900 out of 3100 AC pilots is very important. That is the majority issue, and the collective issue, for ALL AC pilots.

Again the "option" to work longer comes with consequences. Others get forced to work longer for the same pre and post retirement income. The best possible pension benefit is a balance of the desires of the membership.

The push from acpa, on Tue. on the Hill will be a real show stopper. Wish it was broadcast so we could all watch our union try to push 2900 of our pilots, away from obtaining a better pension.

No they will be protecting the wishes of the membership. A membership that clearly values earlier, over money, when it comes to their pension benefit.

[Rockie]

Rockie your putting words in the Tribunals mouth or at least attempting to. They explicitly said alternatives, in the absence of mandatory, that effectively preserve the benefit system without infringing on a protected right.

Your problem is that you think everything is a protected right. Including pension. Your pension rights start and stop with the agreement between employer and union contained in your contract. Any changes need to be negotiated.

How can I be putting words in anybody's mouth when I start a sentence with "Nobody has said..."? You're the one reading FAR too much into one simple phrase out of hundreds that didn't have any mention in the conclusions. Give it up.

[accumulous]

ACPA can keep throwing money at it too.

We are. And we will. ACPA is us by the way. You and the other 2999 guys and gals. Earn it and throw it away.

This is one fight the majority of guys don't mind paying for

We've got no choice but to pay for it. The ‘vote’ cemented that obligation.

especially if it doesn't delay our Wages And Working CONditions progression by 5,10,15, (til we die) years.

It will delay it because 20 million will delay everybody’s income.

The longer it's tied up in court the further along all of us will be to soften the blow if this is crammed down our throat!

Nope – the longer it spends in court, the more spending it takes when it gets out of court.

As they say - "The law students of today will be the lawyers billing at the end of this"!

Actually they’ve already graduated. They’re the same ones you're paying right now.

[accumulous]

Our pension benefit is a balance of what individuals want.

2900 individuals require the years of service your regime cancels.

We are a collective which means we decide.

Wrong again. The Law decides. You’ve already seen one example of that. You’re going to see the rest.

At last count however, it is now 82% opposed to fly past 60.

Nice try. It’s 45 percent. On a prefaced vote. And let's guess what it means.

Since we know most will not get a max pension, it tells me that the vast majority prefer the idea of earlier retirement over more money.

There’s that word ‘vast’ again. Vast minority. 100 out of 3000. They can take early retirement. The majority will take the earnings. Thanks for the thought though.

That may not be your individual preference, but it doesn't matter. You joined a union.

Union agreements don’t trump individual rights. So thanks but we’ll stick with the Law.

[vic777]

it is now 82% opposed to fly past 60. Since we know most will not get a max pension, it tells me that the vast majority prefer the idea of earlier retirement over more money.

It is telling you wrong Brick Head, or maybe you just don't understand yourself and your fellow Pilots. It is really simple, Pilots don't want FlyPast60 until they themselves are Sixty. It has always only been about that. We are who we are and we deserve what we get. Look in the mirror.

[Brick Head]

You're the one reading FAR too much into one simple phrase out of hundreds that didn't have any mention in the conclusions. Give it up.

Rockie,

Apparently you did not read the Federal courts decision on what conditions didn't meet the Oak's test? Since anything I say to you will go in one ear and out the other? Ask Mechanic787 what he meant when he said this.

Hint: the answer won't be found in the conclusion.

If the Parliamentary Committee amends Bill C-481 to incorporate the equivalent exemption clause for employees who are members of a pension plan, the whole legislative challenge would likely have to start over, from the beginning, and the Charter challenge would be much more difficult than the existing Charter challenge, given not only that it would be new legislation and the courts are very reluctant to interfere with Parliament's legislation, but the Oakes test conditions that were not met in the Vilven-Kelly Federal Court decision would be much more problematic.

I would suggest they are already very problematic to your position. However I do agree that new legislation exempting companies with pension plans would pretty much slam the door on it.

[Understated]

Brick Head:

It has been over a month now since I challenged you to stop spouting vague generalizations about the legal options available to preserve your precious deferred compensation system, and to show how those options, if they are based on age, would survive a basic Tribunal or court challenge under the CHRA. You have refused to do both, stating that you are not going to deal in specifics. So far, all I see is hot air. How about some meat?

[Mechanic787]

However I do agree that new legislation exempting companies with pension plans would pretty much slam the door on it.

More problematic does not mean that it won't happen. If you look at the 2008 SCC Saskatchewan Potash case, you will see that the decision to go with a strict statutory interpretation of the term "bona fide pension plan" rather than to "read in" general human rights principles re "bona fide," consistent with the equality provisions guaranteed in Section 15 of the Charter, turned on the narrowest of a majority: four to three, with the Chief Justice wanting to read in.

That tells me that if the Charter issue had have been pleaded and before the Court in that case (which it was not), the legislation permitting the exemption to mandatory retirement where a pension plan is in place would have been toast. It is only a matter of time before that legislation in one or all three of the provinces that have it, goes ta-ta, either by repeal, or by being struck down, by reason of a slew of legal imperfections, not all of which are self-evident. It is interesting to note that one of the two intervenors in the case was Alberta, who tried to persuade the Court to read in the interpretation that would have killed the exemption. As you will recall from one of my earlier posts, Alberta is one of the two other provinces that has a similar exemption in its own human rights legislation.

That point will not slip by the Committee, and any attempt to introduce such an amendment would either be defeated outright (especially by the NDP, who would openly object to legislation that specifically targets harm to the most vulnerable, namely those with inadequate tenure in the company's pension plan, such as women, immigrants, the highly job mobile, part-time workers or the disabled) or would cause the Committee to continue to deliberate the issue with further evidence required at a subsequent hearing. It's too late to have that amendment go forward on this Bill, if this Bill is going to move out of Committee and back to Parliament by late Tuesday.

The Committee will pass the two proposed amendments (military exemption, and a delay with respect to the date of coming into force), and there will be at least one compromise made to accommodate the representations made by the employers through their lobbyists.

[Brick Head]

Brick Head:

It has been over a month now since I challenged you to stop spouting vague generalizations about the legal options available to preserve your precious deferred compensation system, and to show how those options, if they are based on age, would survive a basic Tribunal or court challenge under the CHRA. You have refused to do both, stating that you are not going to deal in specifics. So far, all I see is hot air. How about some meat?

Understated,

My intention has never been to talk about specifics. You know this. My intention is purely to add some substance to this debate. As for specifics? I have the same questions and concerns you do. Yet? That is where the courts are taking us. If we continue down this direction the court will need to figure it out. We both know we won't agree.

I don't oppose the end of mandatory retirement.

I oppose everyone having to work longer for the same pre/post retirement income as a result.


It goes against the grain of what is in the best interest of the group. In its simplest terms can you not see that your position subverts our collective agreement? You are attempting to use the CHRA to redistribute the intended distribution of the collective wealth and lengthen everyone's work life?

If we could agree on a solution that did not do this we wouldn't be having this debate. But we all know that won't happen. It won't happen because the ultimate goal here is more pre and post retirement income for the complainants. Conversely our goal is the pest possible pre and post retirement income for the collective as a whole.

Oak's test.


[201] I have previously found that the objective of 15(1)c was to permit the negotiation of mandatory retirement arrangements between employers and employees, particularly through the collective bargaining process, so as to allow for the preservation of socially desirable employment regimes which include matters such as pensions, job security, wages and benefits. Such an objective continues to be a pressing and substantial one in society.


She is clearly saying although mandatory retirement is not pressing and substantial its objective still is. How this ideology gets negotiated is yet to be seen.

[Rockie]

There are many ways to enable pilots to retire earlier with as much. You just cannot see them Brickhead, because your only song is the same pay scheme and pay levels combined with alternate means of age discrimination to ensure people stop accruing pension and denying seniority rights at age 60. For some reason you are incapable of conceptualizing anything else. I don't know what kind of brain blockage you have that doesn't let you recognize age discrimination, but the people giving direction to Air Canada and ACPA do not suffer from it. They can recognize your pig no matter how much lipstick you smear on it.

You personally may never get it. If you haven't by now you will probably go to your grave wondering what age discrimination is. The really punishing thing for Air Canada pilots is that ACPA thinks the same way you do. If it stopped there I wouldn't mind just watching events steamroll you. But you are spending MY money. And you are making ME look stupid because unfortunately we are all lumped in to the same pile.

[vic777]

My intention has never been to talk about specifics. You know this. My intention is purely to add some substance to this debate. As for specifics? I have the same questions and concerns you do. Yet? That is where the courts are taking us. If we continue down this direction the court will need to figure it out. We both know we won't agree.

I don't oppose the end of mandatory retirement.

I oppose everyone having to work longer for the same pre/post retirement income as a result.


It goes against the grain of what is in the best interest of the group. In its simplest terms can you not see that your position subverts our collective agreement? You are attempting to use the CHRA to redistribute the intended distribution of the collective wealth and lengthen everyone's work life?

If we could agree on a solution that did not do this we wouldn't be having this debate. But we all know that won't happen. It won't happen because the ultimate goal here is more pre and post retirement income for the complainants. Conversely our goal is the pest possible pre and post retirement income for the collective as a whole.

I declare that the debate is over.
Brick Head is the winner!

[Understated]

[201] I have previously found that the objective of 15(1)c was to permit the negotiation of mandatory retirement arrangements between employers and employees, particularly through the collective bargaining process, so as to allow for the preservation of socially desirable employment regimes which include matters such as pensions, job security, wages and benefits. Such an objective continues to be a pressing and substantial one in society.

Disconnect. How do you get from that statement, "desirable employment regimes that include matters such as pension etc." to your interpretation that the Tribunal and the courts by that statement are embracing the alleged sanctity of your idea of a deferred compensation scheme? Further, how do you get to the idea that the Tribunal or the Court is ever going to allow ACPA to maintain its age 60 cut-off "through alternative means" so that those over age 60 don't get what you refer to as, "more than their entitlement?" There is absolutely no evident judicial endorsement of that extreme interpretation within the Court's pronouncements.

That's one giant leap for mankind. You not only have not told us what those alternatives are, you have not told us how they could possibly hold up under legal scrutiny. Like I said, all you have given us is hot air. No meat.

[BTD]

This debate is becoming quite funny as an outsider reading. Neither side is reading what the other side is saying. Or is answering around it.

Rockie: I think that what Brickhead is saying is that perhaps there is a method that doesn't use age or any other form of discrimination to base the retirement date or a change in benefits from. Brickhead is not saying use age as the basis for deferring compensation.

Brickhead: I think the problem Rockie and others are having is that you mention another method, but then don`t back it up with any ideas of how to accomplish this. This leads them to believe that perhaps there is no other way to accomplish the goals without using an age based discrimation. Perhaps there is, but if you are the one pushing the thought generally it should be you that makes the case by using specific examples of how. Otherwise this toilet convesation where everyone goes round and round is the result.

If I am way off base, please correct me.

BTD

[Johnny Mapleleaf]

Brickhead: I think the problem Rockie and others are having is that you mention another method, but then don`t back it up with any ideas of how to accomplish this. This leads them to believe that perhaps there is no other way to accomplish the goals without using an age based discrimation. Perhaps there is, but if you are the one pushing the thought generally it should be you that makes the case by using specific examples of how. If I am way off base, please correct me.

You are not off base at all. In fact, you are spot on. Everyone here has been trying for months to get him to put his cards on the table, but the reality is that he doesn't have any aces. In fact, he may not even have any cards at all. All he does is quote disparate portions of legal decisions ad infinitum and offer vague generalities about legislative and judicial intent.

His options, if they do exist, are age-based and therefore illegal, just the like Memorandum of Agreement of last summer. It was an embarrassment to both the union and the company after it got exposed, and especially after it came under the scrutiny of both the CIRB and the RCMP.

We will never know what his "solutions" are because he can't show what he doesn't have.

[yycflyguy]

Other than abolishing mandatory retirement age, what is your solution for the affected majority?

Not sure why you feel Brickhead has to find an equitable solution to appease the opposite side of the debate. If he is directly involved with this process, why would outline union strategy on an open, public forum?

[accumulous]

Other than abolishing mandatory retirement age, what is your solution for the affected majority?

That one is extremely easy.

For the overwhelming majority of 2900 out of 3000 pilots who can't continue in the Pension stream if they are locked out at 60:

Canadian Human Rights Commission
344 Slater Street, 8th Floor, Ottawa, Ontario K1A 1E1, Canada
Telephone: (613) 995-1151
Toll Free: 1-888-214-1090
TTY: 1-888-643-3304
Fax: (613) 996-9661

The AC/ACPA discrimination case is very well known in Ottawa.

Just call toll-free. They’ll put you through to the appropriate officials – they will fax or mail you a complete application set and are more than happy to help you with it.

It will take about 20 to 30 minutes to fill it all out – fax or mail it back.

You will immediately be assigned a case number and placed in sequence with about 200 other pilots. That number is rapidly increasing so the best time to apply is at your earliest convenience. Done.

You have 12 months from the date of forced retirement, and in some cases, that date has been moved up with the last equipment bid prior to forced retirement as that event has notice that an individual was removed from the bidder list.

There was mention made that with the recent Federal Court decision, that time line may have been made even broader but others would have comments on that.

[Johnny Mapleleaf]

Not sure why you feel Brickhead has to find an equitable solution to appease the opposite side of the debate.

He doesn't have to. That is not the issue. The issue is that he keeps telling us that there are legal equitable solutions that preserve his "deferred compensation system" but, when pressed, he refuses to identify a single one. The issue is credibility, short and simple.

[777longhaul]

yycflyguy

There is no, majority in this issue, except, for the 1701 pilots who voted against this, or did not bother to vote, as they dont care. That is the only majority that ever came out of acpa's IVR vote, and acpa survey. They never did another IVR vote, as they knew they could not get a majority vote.

There are 2900 out of 3100 pilots, who will benefit from this, at their option, not forced out by an out of date contract.

The big issue, is to get acpa/ac to agree to 3 years, instead of 5, for best consecutive years. That will move many pilots into a far better pension issue, and help everyone involved. Also, acpa needs to get indexing back into the plan, and that will allow more pilots to retire early. The savings from no indexing, is windfall gains to the co, yet, no pilot is benefiting from it, and all of senior management, has an indexed pension. How crazy are we as pilots?

Ac has played acpa like a cheap fiddle. They even talked, acpa, into accepting 50% of the risk/liability/remedy/damages. That was a really stupid move by acpa, and it was driven by the special interest group(s) in this MEC, and the previous MEC's.

[bcflyer]

There are 2900 out of 3100 pilots, who will benefit from this, at their option, not forced out by an out of date contract.

If my option is to leave at 60 (like all those before me) will you top up my best 5 yrs to what it should be if everyone continued to leave at 60?

For some reason the Fly Past 60 group don't seem to understand that not everyone wants to fly till we die. I started late at Air Canada (I will have 22 yrs in the pension) and knew I wouldn't be making huge dollars from the AC pension. I have planned for that accordingly as have a great number of my collegues who are in my situation. That was the trade off for retiring at 60. Now however I will be forced to stay past 60 to achive the same pension money. Why would anyone want to work extra years to get the same pension?? (this is what will happen to the junior pilots..) As has been mentioned over and over there is no way to allow fly till you die and still let people retire at 60 with the pension they otherwise would have had.....

[Understated]

For some reason the Fly Past 60 group don't seem to understand that not everyone wants to fly till we die.

Wrong.

As has been mentioned over and over there is no way to allow fly till you die and still let people retire at 60 with the pension they otherwise would have had.

As has been mentioned over and over again, this was coming and no-one could stop it. It has nothing to do with whether we like the change or not. It has everything to do with how we manage the change.

Why not tune in to hear your illustrious ACPA President tomorrow tell Parliament to stop the clock. Never change. It's in our contract, so we are entitled to keep that forever.

The session starts at 11:00 Eastern, and he is scheduled to give his five minutes worth at 11:45:

http://parlvu.parl.gc.ca/ParlVu/Content ... ityId=7358

[bcflyer]

As has been mentioned over and over again, this was coming and no-one could stop it. It has nothing to do with whether we like the change or not. It has everything to do with how we manage the change.

Hmmm last time I looked mandatory retirement was still legal at the federal level. Yes it may change, but if certain people hadn't gotten greedy and wanted to stay at the top after those before them left, there would be no issues to this point....

[bcflyer]

For some reason the Fly Past 60 group don't seem to understand that not everyone wants to fly till we die.

Wrong.

If that is true then please point out what they are doing to ensure that those of us who may actually consider leaving at 60 a privilege and not discrimination, can obtain the same pension we would have received had everyone continued leaving at 60.. Or do they just not care?

[Lost in Saigon]

For some reason the Fly Past 60 group don't seem to understand that not everyone wants to fly till we die.

Wrong.

If that is true then please point out what they are doing to ensure that those of us who may actually consider leaving at 60 a privilege and not discrimination, can obtain the same pension we would have received had everyone continued leaving at 60.. Or do they just not care?

The first thing you need to do is insure that out pre-CCAA contract is re-instated with fill cost of living inflation added. Age 60 is peanuts compared to that.

[Understated]

If that is true then please point out what they are doing to ensure that those of us who may actually consider leaving at 60 a privilege and not discrimination, can obtain the same pension we would have received had everyone continued leaving at 60.. Or do they just not care?

So, it is up to us to not only tell you that you have a problem, but it is up to us to fix it too? Nice. How about if we come over to the next ACPA Council meeting and make a few suggestions? Oops. Forgot. Not welcome. The YYZ Base Chair said, "We don't represent those pilots!" Heard it with my own ears. Honest.

It's probably too late to give you what you expect us to give you, anyway. Several of us offered probable solutions years ago, but, gosh. Don't know what happened. Things just got off the rails.

Don't care. About what? About what Parliament is about to do to us? About the potential liability that is ultimately going to come out of all of our union dues? About the fact that this whole mess should have been avoided? Wrong. I do care.

[yycflyguy]

Understated:

Respectfully, have you ever served the union and your fellow colleagues in any capacity or merely criticized them? I read your posts and your obvious disdain for them prevents any constructive progress. When people criticize ACPA, they are criticizing themselves. I happen to have a lot of respect for our current President who has actively bettered our members by his activities on the hill.

Accumulous:

I think you missed the mark on my question and my perspective on the FTYD. The affected majority are those who want to keep the benefit of retiring at age 60 without violating human rights. How do you re-integrate them fairly?