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

[Morry Bund]

My question to you is pretty simple. Why? Why must Parliament enshrine the objective that has already been determined both important and legal?

You misstated my postulation. I did not suggest that Parliament must enshrine the objective. I suggested that Parliament has not replaced mandatory retirement with anything that maintains the objective that you suggest is still valid.

You have maintained that mandatory retirement was founded on an objective of protecting the deferred compensation system. Mandatory retirement was the legislative manifestation of that objective. Mandatory retirement has ended. What manifestation is there now to replace it, so as to protect the objective of maintaining the deferred compensation system? There has been no new manifestation of anything, to my knowledge. Mandatory retirement is abolished on both fronts, with nothing to replace it. There is no alternative manifestation that maintains your professed ostensible objective. At least, you haven't pointed to any such manifestation.

Several posters above have asked you to spell out the details of what you are suggesting may be legal alternatives to mandatory retirement that will leave that deferred compensation scheme unaltered. I also welcome you to do so, for I see no legal alternatives whatsoever.

We did see one illegal one, but that one has now been declared null and void. You aren't suggesting that we go back there, are you?

[Johnny Mapleleaf]

February will likely be a very difficult month for the ACPA MEC. First week: Federal Court decision. Second week: CIRB decision. Third week: Thwaites decision. Fourth week: Parliament repeals the mandatory retirement exemption. All of this will be followed by the Ides of March! The members will finally speak up. Et tu, Bruté?

[Rockie]

I would still not call this "social evolution" .. Please run it by me again how this benefits me? If you're referring to us working till the day we die as a benefit .. then you and I have very conflicting views.

I would be happy to run it by you again.

No one is suggesting you have to work until you die. No one can make you work until you die. This is not, and has never been about making you work until you die. This is about giving you the choice of when to retire, not when someone else decides you will. You don't see that as a benefit now because you can only see it from the extremely narrow perspective of getting rid of guys above you as quick as possible. You are unable to see that you will one day be in that position and will be glad the choice is yours, not somebody else's. Your lack of vision and foresight will one day be superceded by actually being in that position, but by then you will have forgotten how you feel today.

It is very much social evolution.

You have the power to alter the equation to even the compensation playing field plus other measures as yet unthought of to ensure you can retire as early as you can. But you would rather cry into your pillow at night and take what you percieve to be the easiest way out. Namely retaining mandatory retirement.

News flash...that ain't gonna happen. So, what are you going to do? Continue moaning about it or deal with the reality?

[Martin Tamme]

You guys crap all over ACPA but what about Air Canada? Why do Air Canada not want this to happen. You guys dance around that question every time its asked.

Many people including me have pondered this question many times. The only plausible explanation I can come up with is because Air Canada recognizes the damage it is doing to ACPA for a relatively cheap investment on their part. If that is not the reason then who knows? By any measure eliminating mandatory retirement is beneficial for the company.

Why don't you explain why Air Canada appears to be on ACPA's side here?

I'm the one who asked the question initially, because I wanted to get people thinking. My question was more or less rhetorical, because I already knew the answer.

Back in August 2006, I attended a Grievance hearing. During a break, I followed one the Company's Labour Relations guy outside, who went for a smoke. Since the FP60 was just coming onto our agenda, I asked him as to what the Company's position was. Well, I can tell you that regardless of which position ACPA takes, the Company will be fighting this tooth and nail.

Sure the Company may save in Pension and Training costs; however their overall financial burden will be much greater. This has got nothing to do with Air Canada wanting to inflict damage onto ACPA. Once you figure out what with flying past 60 will cost Air Canada more than the money they can save in Pension and Training, then you will see why Air Canada will do its damnest to ensure that FP60 will never happen.

[Localizer]

No one is suggesting you have to work until you die. No one can make you work until you die. This is not, and has never been about making you work until you die. This is about giving you the choice of when to retire, not when someone else decides you will. You don't see that as a benefit now because you can only see it from the extremely narrow perspective of getting rid of guys above you as quick as possible. You are unable to see that you will one day be in that position and will be glad the choice is yours, not somebody else's. Your lack of vision and foresight will one day be superceded by actually being in that position, but by then you will have forgotten how you feel today.

Gawd you are one egotistical ass ... This is still no benefit to me or as I see it anyone else. I'd prefer the benefit of progression and the choice of what seat I fly from, just like those before us. I, and it seems many others, have no issue with mandatory retirement as we are all planning for it accordingly. This does nothing but plug the system ... a system that worked.

So continue with your childish remarks about "crying in the pillow", or "spoiled brat" .. blah blah blah ..

[Rockie]

What additional costs are there for the company to go beyond 60 when the rest of the planet already has? How do those costs compare to the cost of fighting it and losing anyway, as I'm sure Air Canada's lawyers would have told them would happen?

And now that you mention it, how much has ACPA spent so far on this fiasco Martin? You were involved back then I believe, so what legal advice did ACPA receive on their chances of keeping mandatory retirement?

[Rockie]

This is still no benefit to me or as I see it anyone else.

That's because you lack imagination.

I'd prefer the benefit of progression and the choice of what seat I fly from, just like those before us. I, and it seems many others, have no issue with mandatory retirement as we are all planning for it accordingly.

Your career progression will still happen. You will still have the same choice of seat you fly from. And the sky will not fall. But you won't have mandatory retirement which you will one day come to appreciate.

How long do you plan on shouting at the wind before you actually do something concrete to adjust to the way things are?

[Martin Tamme]

You were involved back then I believe, so what legal advice did ACPA receive on their chances of keeping mandatory retirement?

We were told that as long as the Supreme Court of Canada's previous Decisions still apply, then pilots will keep on retiring at whatever age is/was negotiated.

The judge in this JR stated that the previous SCC's Decisions do not apply in this case. I guess we'll have to find out what the SCC has to say in the matter - as to whether or not their previous Decisions will apply to this case.

We were also told (in Feb 2007) that this would be a long and drawn out event, and will not to be settled until at least 2014 - the earliest estimate at which to expect an decision from SCC.

P.S. If Parliament changes the law, then the SCC's previous Decisions will no longer be in force. However, as Ray has already confirmed, if an election is called before final reading of the Private Member's Bill, then the Bill dies.

[Rockie]

We were told that as long as the Supreme Court of Canada's previous Decisions still apply, then pilots will keep on retiring at whatever age is/was negotiated.

That doesn't tell the whole story Martin because there is a pretty large proviso in that statement. Where's the rest of it? Surely somebody asked what their chances of keeping mandatory retirement were. If nobody asked the question then nobody in that office was doing their job.

What was the answer to that question?

[Morry Bund]

Sure the Company may save in Pension and Training costs; however their overall financial burden will be much greater. This has got nothing to do with Air Canada wanting to inflict damage onto ACPA. Once you figure out what with flying past 60 will cost Air Canada more than the money they can save in Pension and Training, then you will see why Air Canada will do its damnest to ensure that FP60 will never happen.

Now you have me stumped. How does the overall financial burden exceed the $400,000 per year that they lose by deferring one pilot's retirement by one year? How does the overall financial burden exceed the $4 million that they lose by deferring 10 pilots' retirement by one year? What factors are they putting in the mix to arrive at their numbers? Did you get any clue from this individual as to the factors and/or the reasoning?

[Martin Tamme]

Surely somebody asked what their chances of keeping mandatory retirement were. If nobody asked the question then nobody in that office was doing their job.

What was the answer to that question?

Again, it doesn't matter what position ACPA takes, because the Company is going to fight this all the way. Nevertheless, ACPA has a duty to represent its pilots.

Now, you may notice that I did not use the word "majority" here, and that's because it doesn't necessarily have to be. Let me explain by way of example:

Let's assume that after an Equipment Bid, you were awarded the last B777 Captain position. I being senior to you, had also bid it, but was not awarded it. No reason was given. As per the language of the Collective Agreement, I should have been awarded that position and I want ACPA to file a grievance on my behalf.

ACPA agrees with me: In accordance with the Collective Agreement, I should have been awarded that position and takes up my case. Nevertheless, if ACPA takes my side and I win my case, then you will be thrown off the B777. In other words, with ACPA representing my interests, will only lead to damaging yours.

You become very upset with ACPA, that they are taking sides (mine over yours). You believe that ACPA should not solely be representing my interests, but should also be representating yours (which is an implausible task to undertake, because one cannot speak out of both sides of one's mouth) or stay out of it completely by taking a neutral stance (which will give me an excellant chance in winning a DFR).

A union only has one choice in these matters and that is to protect/enforce the provisions of the Collective Agreement. Naturally, if the union believes that a provision of the Collective Agreement should be changed, then it can do so as long as the majority of the membership agrees.

Hence, the banter that we hear of a Union protecting the majority at the expense of the minority. This is completely false; The union's duty is to protect/enforce the Collective Agreement, and cannot deviate unless the membership agrees to changing the Collective Agreement.

[Martin Tamme]

How does the overall financial burden exceed the $4 million that they lose by deferring 10 pilots' retirement by one year? What factors are they putting in the mix to arrive at their numbers? Did you get any clue from this individual as to the factors and/or the reasoning?

Yes, he gave me the Company's reasoning. Try and figure it out; if the Air Canada lawyers figured this out, then it shouldn't be that hard.

We are not talking about just 10 pilots deferring retirement by one year; we are talking about ??? pilots deferring retirement by ??? of years. Having as little as 50 pilots deferring their retirements by ??? years, can affect Air Canada in the hundreds of millions of dollars.



Hint: What is the greatest implied cost that one would encounter under a Formula based pay system, that one would not have under a Status based pay system? In other words, if we were under Status pay, Air Canada would not be fighting FP60 as vigilant as they are now; however, under the Formula based pay system, they have no choice.

[accumulous]

We were also told (in Feb 2007) that this would be a long and drawn out event, and will not to be settled until at least 2014 - the earliest estimate at which to expect an decision from SCC.

You can color this with any inexperienced set of crayons you like, but it would appear, given all the very recent decisions, even in your wildest dreams of prolonged litigation all the way out to 2014, all the pilots who apply to return will return, right now, starting last November, under Tribunal Orders, and during each group’s absence awaiting reinstatement, the entire membership would appear in all likelihood to be facing the prospect of bearing half of all the Complainants’ wages for the months that they sit out.

How does that fit in with productivity. Try trading that for anything.

ACPA can appeal all they want, ad infinitum, but that will not change the here and now. Rulings have been made, laws have been built, and Orders are appearing. The very real prospect with the imminent CIRB ruling is that ACPA will no longer be permitted to litigate against its own membership in this issue, and if they choose to go that route regardless, they can pay the legal fees of the senior pilots they are trying to eradicate in broad daylight in front of the entire North American pilot population, all the way to the Supreme Court if they so choose.

One thousand, seven hundred and one (1,701) AC pilots who either do not support this blind fiasco or did not vote on the rigged ballot, representing 56 percent of all the active AC pilots, are sitting with the approximately 45,000 other North American Airline Pilots in the big theatre watching a middling seniority group trying to obliterate the top of the list while standing on the shoulders of the bottom end Position Group for support.

There is no doubt that this will play out in its entirety. The Ninety-seven percent in the audience says our membership is headed exactly 180 degrees in the wrong direction. The train entered the tunnel last week and it is so dark in there nobody, but nobody, can see the writing on the wall.

This thing is being driven by an overriding convoluted and poorly scripted game plan that has been completely deciphered by the lawmakers of the country. The transparency was thinner than a cheap cut of prosciutto. The legal machine that only seems to move at a glacial pace has completely buckled the thin ice that so far is the only thing one special interest group has had for support.

Anybody think AC will keep the appeals going just to appease ACPA? Not very likely. Even if they do, they’re only appealing laws that govern right now. Reinstatements will continue apace and appeals don’t stand a snowball’s chance in hell of beating Parliament anyway. As the litigation piles up you can bet they are about a hair from pulling the pin and if we the membership think in our wildest dreams that we’re not being played like a bad fiddle, guess again.

Just throw another bucket of coal under the boiler and drive that sucker straight to the end of the tunnel, boys. Fill yer boots.

It’s over with.

[Understated]

What is the greatest implied cost that one would encounter under a Formula based pay system, that one would not have under a Status based pay system? In other words, if we were under Status pay, Air Canada would not be fighting FP60 as vigilant as they are now; however, under the Formula based pay system, they have no choice.

Something doesn't make sense. The only difference between the two systems is the training cost resulting from pilots bidding to maximize their income. That is the whole objective of status pay. So excuse my ignorance, but I still don't get it. Why does Air Canada want to keep bumping pilots off the top of the list? Surely it can't be because it wants to move to a status pay system--it rejected that option repeatedly, years ago.

[bcflyer]

[.

You guys crap all over ACPA but what about Air Canada? Why do Air Canada not want this to happen. You guys dance around that question every time its asked.

Many people including me have pondered this question many times. The only plausible explanation I can come up with is because Air Canada recognizes the damage it is doing to ACPA for a relatively cheap investment on their part. If that is not the reason then who knows? By any measure eliminating mandatory retirement is beneficial for the company.

Why don't you explain why Air Canada appears to be on ACPA's side here?

Rockie you asked this question in another thread in the General section.. I answered it there for you but I'll repost my ideas here for you to peruse....

This is about far more than the pilots. If fly/work till you die becomes the new norm then all the staff at AC will be clamouring for the same thing. Imagine 75yr old F/A's, CSA's and Rampies. They all have B scales for their new hires, so unlike the pilot group, when a senior person retires they are replaced by a lower paid worker. The longer the old staff stay the more it costs the company.

If I was the company I'd be fighting it too......

[Understated]

They all have B scales for their new hires, so unlike the pilot group, when a senior person retires they are replaced by a lower paid worker. The longer the old staff stay the more it costs the company.

Finally, something that makes sense.

But they could have settled with the pilots in 2006. Age 65 for pilots only. They didn't. They rolled the dice. They lost. No age limit at all. What happened?

[Martin Tamme]

The only difference between the two systems is the training cost resulting from pilots bidding to maximize their income. That is the whole objective of status pay. So excuse my ignorance, but I still don't get it. Why does Air Canada want to keep bumping pilots off the top of the list?

It's not the only difference: The other is the cost associated with planning; the time required to replace a pilot who has retired.


If you look at the Equipment Bids, you will notice that retiring pilot names are stricken off the list as much as 18 months before the pilot retires. In other words, the Company has been given an 18 month time allotment to replace a pilot. Most of the retiring pilots are coming off the B777 Captain position. So, how long does it take to replace a B777 Captain?

Well let's see. It takes approximately 2 months to train an A330 Captain to replace a B777 Captain. However, before the A330 Captain can be trained off, a B767 Captain has to be trained in order to replace him. Before that can happen, an A320 captain would have to be trained on to the B767. This exercise is repeated right down to the lowest equipment/position on the equipment list.

At the end of the day, the Company almost needs to know 18 months into the future as to their hiring requirements, just to replace one B777 Captain.

At the present time, the Company knows exactly the number of pilots they need to hire, because pilots are leaving at the top level at a pre-determined date (within a small margin of error - if pilots were to leave any earlier than 60, they would be financially penalised on their pension).

Now, let’s suppose that pilots, who are mostly B777 Captains, are given the choice of date as to when to retire. How can the Company plan for this? For example, one B777 captain may still wish to retire at age 60. However, another one would like to go until 60½ , while another wants to go until 61⅜ , and another goes to 62¾, etc. Everybody will be going at a different time than expected, not giving the Company any notice as to when they want to leave.

The Company’s planning is shot out the window. Either they will hire too many pilots (most of the excess will sit on the B777, as you've seen with the latest bid with Vilven & Kelly being listed as additional pilots to the needed requirement of pilots), or not enough to crew the airline.

So, if you don’t have enough pilots, how much will this cost the Company in cancelled flights over an 18-months period?





Now, let’s take everything that I said above and take it to the extreme.

On what equipment/position will most pilots who are between the ages of 60 and 65 find themselves on?
On what equipment/position will most pilots who are over the age of 65 find themselves on?

If you answered B777 Captain and B777 F/O respectively, then you are correct.
So again, taking this to the extreme, let’s assume that every single B777 Captain is between 60 and 65, and every F/O is over 65. Is there anything preventing these pilots from leaving all at the same time?

Let’s assume that the Company pisses us off once again like they’ve done so many times in the past. Unfortunately for those of us who are under 60, we have to take it on the chin, because in our seniority-based industry, we cannot leave; we cannot take our seniority with us to go somewhere else.

However, there is nothing holding back a person who has nothing to lose; he can just hang it all up, and live off a lavish pension. So under this extreme case, if at the same time, every over 60 pilot had enough, the entire B777 fleet would be grounded for up to 18 months.

So, how much would this cost Air Canada? Now, you know why their lawyers are worried?




P.S. Although lack of planning will also affect the Company under a Status based pay system, it surely wouldn’t take 18 months to replace that B777 Captain – probably something like 3 months, and not all of the over 60 pilots will be on the B777 - they will be spread throughout the fleet.

As we are presently in Negots, I'm sure the Company is clamoring for a Status-based pay system to ensure that they aren't held hostage by the pilots wishing to remain past 60.

[yyz monkey]

How can the Company plan for this?

Could they not just insert a clause into the CBA (one where FP60 is a reality) stating that, for planning purposes, pilots must give the company at least 18 months notice prior to retiring and, once given, that cannot be revoked?

In my mind, that would set all the wheels needed (planning, training, paperwork) in motion, would it not?

Or is a little more complicated than my brain would like to think at 0430?

[vic777]

As we are presently in Negots, I'm sure the Company is clamoring for a Status-based pay system to ensure that they aren't held hostage by the pilots wishing to remain past 60.

If a Status Pay/Flat Pay System is done right, it is the best thing for the Pilots. Are you saying that the only way we get it, is if the Company is "clamouring" for it? You say, "I'm sure the Company is clamouring for a Status-based pay system". You're joking right? Do you think if, "the Company is clamouring for a Status-based pay system", that the ACPA negotiators can screw it up? A Status Pay/Flat Pay System, if done right, is a big win for ACPA and the Company. The windfall Profits that will flow to the Company as a result of FlyPast60 can be given to the Pilots and a Flat Pay/Status Pay System can be implemented where no Pilot takes a monetary hit. If the ACPA negotiators screw it up, it would result in only a very huge win for the Company and a severe loss for the ACPA represented Pilot. Your idea that all of the Pilots on the B777 would get "pissed off" and retire at the same time is inconsistent with any action ever taken by the AC Pilot group since the beginning of time, and ranks as pure fantasy. Why doesn't ACPA come up with an estimate of how much the windfall gains that the Company will get as a result of FlyPast60 are, instead of dreaming up ridiculous fantasies such as all Pilots on the B777 deciding that they will retire at the same time? These windfall gains can be used to implement a "Status Pay/Flat Pay", system where everyone wins. FlyPast60 can be a huge win-win, as was pointed out Six years ago.

As we are presently in Negots, I'm sure the Company is clamoring for a Status-based pay system to ensure that they aren't held hostage by the pilots wishing to remain past 60.

Let's just revisit this statement once again, you're not sure about this at all, are you? Do you know something about, "the Company is clamoring for a Status-based pay system", and the current negotiations? Answer, NO, (I'm guessing). Were you awake at 3:04AM when you posted this?

... we are presently in Negots, ... the Company is clamoring for ...

Geez, and you say it, like it was a bad thing!

[Understated]

It's not the only difference: The other is the cost associated with planning; the time required to replace a pilot who has retired. ... At the end of the day, the Company almost needs to know 18 months into the future as to their hiring requirements, just to replace one B777 Captain.

That proposition was entered as evidence in both hearings by Air Canada's Flight Ops witness. There are lots of problems with the assumptions that it contains. From a statistical probability point of view, it should be seriously discounted--there is a probability discount required with each replacement down the list. You simply can't apply 100% probability at each step and have any reasonably accurate forecast at the end of the process.

From a practical point of view, given the huge gaps in the published equipment bids, it should be steeply discounted. Remember the bid where one-third of the A320 fleet was shown vacant?

From an operational and management point of view, there are also lots of ways of providing additional flexibility within the training system and within the monthly operations, even without changing the collective agreement by providing incentives or disincentives.

Once the repeal of mandatory retirement takes place (as early as later this month?) do you think that Air Canada will stop fighting the existing complainants and settle the dispute?

[Understated]

A union only has one choice in these matters and that is to protect/enforce the provisions of the Collective Agreement.

Wrong, big time. The pending CIRB DFR decision will undoubtedly give you a fresh perspective on this seriously flawed assumption. The union has a statutory duty to not only fairly represent the interests of all pilots, but to avoid representing one group of its members against another group of its members, especially under the pretext of, as you say, protecting/enforcing the provisions of the collective agreement.

Conflicts in the application and enforcement of collective agreements occur all the time. It is simply impossible for any union to be all things to all its members. However, there is a huge difference between looking after the interest of the membership as a whole, versus completely abandoning the representation of a sizeable minority of the membership in favour of the majority of the membership under the pretext of upholding the collective agreement, especially where the issue involves the statutory rights of the minority under human rights legislation.

Even your mother's former union (CUPE) got this right, and they didn't hire a rocket scientest to advise them. They simply sought independent legal advice from three separate sources, all opinions of which were unanimous and all opinions of which were 180 degrees different from the direction that ACPA took (with or without independent legal adivice), then they followed that advice.

There is a big lesson here for this union and for this MEC. Given the prejudices evident in the decision making at the top of our organization, every indication is that it will be a bitter lesson indeed.

[Rockie]

Again, it doesn't matter what position ACPA takes, because the Company is going to fight this all the way.

Yes Martin, it matters very much what position ACPA takes. Before ACPA chose sides the company was responsible for 100% of the liability costs associated with losing this fight, now we are responsible for 50% of them. ACPA has also violated their duty of fair representation which is not only a betrayal of their membership and responsibility as a trade union, but carries as yet undetermined costs and consequences. Stand by for news on that front.

You needn't explain the choices a union has when deciding whether or not to represent someone in a grievance, I know all about it and have had to make those choices myself. When I made those choices though I was very aware of the obligation to make that choice in a way that was not discriminatory, arbitrary or in bad faith. Several times we chose not to represent, and several times we had to represent even when we didn't really want to. ACPA chose unwisely in this case and despite successive rulings against them and six years to think about it they still don't realize it. We are all going to pay the price for that in more ways than just monetary.

You still haven't answered my question. What was ACPA told back in 2005/2006 regarding their chances of success in keeping mandatory retirement? Were they by any chance told there was no way to stop it, only delay it?

Maybe you could also tell us how much of our money has been spent so far on this futile venture as well? ACPA doesn't seem to want to say.

[HavaJava]

Without considering the possibility of liability due to the pending DFR, what is the estimate of liability due to Air Canada not rescinding mandatory retirement?

I know I read it somewhere (don't know if it was here or on another forum) and someone had estimated in the range of $3,000,000 a month.

[Understated]

Without considering the possibility of liability due to the pending DFR, what is the estimate of liability due to Air Canada not rescinding mandatory retirement?

The Tribunal awarded damages to the pilots of the difference between their salary and their pension for the period subsequent to the August, 2009 Tribunal decision. For a B777 Captain that is approximately $10,000 per month.

Air Canada has filed a JR application on that decision, claiming that there should be a discount applied for the pilots' alleged failure to mitigate their damages. Some pilots are otherwise employed, so regardless of the Court decision on mitigation, the total amount will average less than $10,000 per month.

In any event, to get a ball park figure, multiply that amount by approximately 150 other pilots (assuming that they are all senior Captains being wrongfully terminated) times the number of months that damages would be payable, then divide it by two, given that the damages are jointly payable by both Air Canada and ACPA. That should give you a rough idea of the numbers in question.

[Rockie]

Let's see, this had dragged out much longer than a year, but let's use one year as a starting point.

$10,000 per month X 150 = $1,500,000

$1,500,000 / 2 = $750,000 (ACPA's share)

$750,000 X 12 months = $9,000,000

Granted, not all will be 777 Captains and in many cases it won't be 10K per month. But this has also gone on now for close to six years, not one, and they are still pushing guys out the door as we speak so who knows how long this will continue? Let's say for the sake of argument the final tally will be only 30% of the 10K per month figure, and the average time from retirement to settlement is 3 years. That still works out to $9,000,000 total. It also doesn't include legal costs or the intangible cost of a severely divided pilot group and thoroughly discredited pilot union.

That of course assumes nobody else files a complaint, and as I said they're still pushing guys out the door who don't want to go.