Mandatory Retirement Repeal Passes 2nd Reading in Parliament

[LeadingEdge]

But don't you still run into a problem when someone works past 65 because of the ICAO over under rule? as in up to a 65 limit no problem but if Capts become F/O's at 66 doesn't the undue hardship re appear
based on sked problems due to 2 in the cockpit over 60?

Not necessarily. The B777 has a large number of augmented flights, so that diminishes the probability substantially. ICAO requirements are that at least one fully-qualified pilot must be under age 60 if the PIC is over 60. Although RPs are not "fully-qualified" it wouldn't take much to make them so, like a couple of hours of take-offs and landings in the sim each six or eight months.

Also, remember that ICAO implemented the Over-Under rule with a review at the end of five years (which is up on November 26th). Given the lack of safety-related issues with PICs over 60 in the past five years, it is conceivable that ICAO could abandon that restriction altogether within the next two years.

If the RP became a fully qualified First Officer (Which is what you are implying would be required), then the position would have to be bid as such. This would result in the displacement of all the RP's to lower rated equipment and a significant expansion of F/O's. Obviously, this cost would have to be borne by the company. It is not so simple...

[LeadingEdge]

Rockie..
How do you propose that the company accomodate older pilots on smaller aircraft? Any change to their status has been deemed by the FP60 crowd as discrimination. A few have proposed bottom of the list for those who stay, but that was also deemed discrimination. Are you now proposing that pilots be forced onto smaller equipment? I guess i just don 't follow your rationale.

The BFOR exemption must be applied on an individual basis, and must be done to the minimum extent necessary to satisfy the occupational requirement. How is a blanket BOTL applying the exemption individually, and how is it the minimum necessary to satisfy BFOR? Even you must admit that BOTL is a measure designed to dissuade pilots from staying beyond age 60 and punish those that do. It has nothing to do with BFOR.

There will shortly be no retirement age at Air Canada unless the company successfully applies to the CHRT for a BFOR exception. Currently they and ACPA are still trying to maintain age 60 by (unsuccessfully) attempting to con the CHRT into believing that pilots beyond that age cannot be accommodated. The CHRT is rightfully calling bullshit and ACPA/Air Canada are just making themselves look stupid trying it.

If the day comes where Air Canada can successfully argue that Captains are unemployable over age 65, and that FO's need to be restricted to an airplane that has sufficient Captains under age 60 then the CHRT will permit that. But in accordance with the "minimum necessary" principle under that scenario Captains (65+) will have to become FO's, and FO's (60+) will be limited to an airplane that has sufficient under 60 Captains. All of this done limiting each individuals rights to the minimum extent possible.

This is the only legal way to limit an individual's rights. BOTL is not it, nor is arbitrarily assigning them to a more junior airplane simply because you're pissed off at them. The sooner ACPA and Air Canada learn this the better off everyone will be.

How is this even possible?? Positions for the said individual have to be available, there are also provisions regarding damaging other employee rights - you know the ones currently in those positions. What if the only position available to you is way junior to the previous one awarded to the previous non-retiree, is this discrimination based upon age?? How do you determine the minimum BFOR for each individual, and keep it the same, hence no discrimination? What about pay, are you paid for the position or seniority? If you are paid more (Seniority) to be a Capt or FO on an EMB than the younger guy, will that trigger an equal pay clam?? This would be reverse discrimination, i.e.. Lower pay for being under 60... And how does AC schedule all of this?? What would your bidding rights be?? Planting yourself at the top of a list for the foreseeable future does affect the people currently in that position for the foreseeable future as well, what about their rights?? Lastly, who determines your individual BFOR assessment, and what if you don't agree with it??

BFOR cannot be applied on an individual basis, to do so would probably be discriminatory in some court or CIRB claim as well.

[Rockie]

This is straight from the Canadian Human Rights Act, and explains how BFOR must be applied.

"(2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost."

It's clear that using FO's in general as a class would not impose undue hardship on the company to accommodate since they can easily be accommodated on another aircraft besides the most senior. So unless Air Canada can get B777 FO's only recognized as a class (which is possible I suppose) that leaves individual case by case consideration as the only option.

There is an established test that must be successfully met before the BFOR exception is accepted by the CHRT. Air Canada and ACPA failed miserably to do that for age 60, and it is no guarantee they will meet the criteria for age 65 either when they finally get around to trying it. It is also clear that whatever exception may be granted will be the minimum necessary in order to protect the individual's rights as much as possible.

The rest of the considerable problems you cite will have to be worked out, and is what I've collectively referred to as the "chaos" created by reinstating guys on the seniority list who never should have been removed in the first place. But reinstatement will happen because seniority bidding rights do not supercede human rights. That is exactly what myself and other people have been unsuccessfully trying to get Air Canada pilots and ACPA to realize.

Whatever difficulties arise out of this are our responsibility alone because we have refused to manage the problem. Why would anybody be surprised that it's a lot more difficult to manage now?

[Understated]

If the RP became a fully qualified First Officer (Which is what you are implying would be required), then the position would have to be bid as such.

Why so? Does giving the RP training to make him "fully qualified" for ICAO purposes change his bid status? No. He is still an RP because he bid RP. He is just a more qualified RP than the existing RP. Little or no additional cost to the company.

[LeadingEdge]

This is straight from the Canadian Human Rights Act, and explains how BFOR must be applied.

"(2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost."

It's clear that using FO's in general as a class would not impose undue hardship on the company to accommodate since they can easily be accommodated on another aircraft besides the most senior. So unless Air Canada can get B777 FO's only recognized as a class (which is possible I suppose) that leaves individual case by case consideration as the only option.

There is an established test that must be successfully met before the BFOR exception is accepted by the CHRT. Air Canada and ACPA failed miserably to do that for age 60, and it is no guarantee they will meet the criteria for age 65 either when they finally get around to trying it. It is also clear that whatever exception may be granted will be the minimum necessary in order to protect the individual's rights as much as possible.

The rest of the considerable problems you cite will have to be worked out, and is what I've collectively referred to as the "chaos" created by reinstating guys on the seniority list who never should have been removed in the first place. But reinstatement will happen because seniority bidding rights do not supercede human rights. That is exactly what myself and other people have been unsuccessfully trying to get Air Canada pilots and ACPA to realize.

Whatever difficulties arise out of this are our responsibility alone because we have refused to manage the problem. Why would anybody be surprised that it's a lot more difficult to manage now?

First of all this is pure speculation on your part. We have had several rulings from the CHRT, and they have been all over the place. I am sure there will be a few more before its all done... But regardless, can you explain how the re-instatement of almost 200 Pilots at the top of the food chain will not result in a massive down bid training cost to AC? Speaking of affected Pilots, what about their resulting payroll reductions, lifestyle changes, forced bace changes, longterm pension benefit denial to people who plan to retire at 60 etc... What about the undue hardship on the 200 Junior Pilots that would be laid off??

Want me to continue?

Do you really think that AC in its current form can afford this?? What is to stop every retired AC pilot that can hold a medical, from attempting to come back?? it could be 500 Pilots for all you know...

[SilentMajority]

You might want to check out the Human Rights legislation regarding the layoff of existing employees to accomodate the return of other employees....even those who lost their positions due to discrimination......I'm not sure that is legally allowed.

[accumulous]

First of all this is pure speculation on your part. We have had several rulings from the CHRT, and they have been all over the place. I am sure there will be a few more before its all done... But regardless, can you explain how the re-instatement of almost 200 Pilots at the top of the food chain will not result in a massive down bid training cost to AC? Speaking of affected Pilots, what about their resulting payroll reductions, lifestyle changes, forced bace changes, longterm pension benefit denial to people who plan to retire at 60 etc... What about the undue hardship on the 200 Junior Pilots that would be laid off??

Want me to continue?

Do you really think that AC in its current form can afford this?? What is to stop every retired AC pilot that can hold a medical, from attempting to come back?? it could be 500 Pilots for all you know...

We’re talking about fundamental human rights here. The whole point is that the breaches of those rights shouldn’t have occurred in the first place. Reverting to the way things were before the rights were breached is what it’s all about.

All the CHR websites, both Provincial and Federal, are public domain. Go into any of them and read the Decisions. Skip to the bottom of each one. They pretty much all end the same way. They make the situation ‘whole’ as if discrimination had not occurred in the first place.

The remedial measures ordered, ensure that discrimination does not happen again. If it does happen again, you have to pay close attention to Section 10 of the Human Rights Act and other such paragraphs, because the ACT covers all the ways you can’t collude with the Company to in any way segregate the rights of the Complainants before, during, or after the fact. It is HIGHLY illegal. They follow it up with stiff penalties. The last thing you want to do is wind up on that docket.

The up-bid training that’s going on right now is no different than down-bid – they’re just pointed in different directions – the difference is that once the abolition of mandatory retirement sets in, the training costs flatten out. The Corporation gains on a lot of things, including pension solvency when you have a pack paying into the pension and not drawing down on it. Parliament’s move to scrap mandatory retirement is a huge windfall for the Corp.

The other thing that will happen with the abolition of mandatory retirement will be the scramble to find ‘legal’ ways of dealing with the issue, like promoting early retirement with no penalty. There have been lots of ideas floating around about that. It’s a real bonus for anybody wanting to get out early with no penalty.

The fact is that it is no longer the purview of some guy sitting there and dictating when any of the Membership is going to retire. That notion is being yanked out of the hands of whoever was dictating that rights issue. Each individual has the right to decide when they will retire, themselves, and that’s what they’re going to do.

A good litmus test is to open up the Collective Agreements of every other Airline in North America and see how they deal with pilots who reach their 60th birthday. WestJet is a prime example of how to do it, and so with all the others. No age discrimination of any kind, ever.

[MackTheKnife]

Do you really think that AC in its current form can afford this?? What is to stop every retired AC pilot that can hold a medical, from attempting to come back?? it could be 500 Pilots for all you know...

Leading Edge,

Stop being so melodramatic. 500 ???? Pftttttttt !! I would venture less than 20% will actually want to come back to the utter chaos and hostilities that ACPA & AC have fostered in its pilot group.

AC is in a hiring mode right now to the tune of around 150 pilots a year for the foreseeable future. Worse case scenario is a temporary lull in the hiring and upgrade process as a small percentage the complainents actually return.

If ACPA & AC had been pro-active on this issue from day one, none of the above would be a concern right now. Instead they both fought tooth and nail against what any SANE individual saw as a slam dunk. For YEARS they were forewarned the battle would cost a small fortune, not IF but WHEN they eventually lost but it all fell on deaf ears.

Both ACPA & AC are responsible for this mess and both ACPA & AC will have to pay to clean it up.

MTK

[Johnny Mapleleaf]

But regardless, can you explain how the re-instatement of almost 200 Pilots at the top of the food chain will not result in a massive down bid training cost to AC? Speaking of affected Pilots, what about their resulting payroll reductions, lifestyle changes, forced bace changes, longterm pension benefit denial to people who plan to retire at 60 etc... What about the undue hardship on the 200 Junior Pilots that would be laid off?? Do you really think that AC in its current form can afford this?? What is to stop every retired AC pilot that can hold a medical, from attempting to come back?? it could be 500 Pilots for all you know...

My two cents worth. Fewer than half of those who will be entitled to come back will actually show up on the property, for a number of reasons, including their current age (close to or over 65), the alternatives that they took advantage of (flying and non-flying) and not the least of it all, the atmosphere that we turkeys have created here. God bless us.

Regarding the airline not being able to slot these guys in? From what I have been told, the law does not allow returning workers to displace existing workers. But that isn’t a problem, because we are currently retiring about 10 a month. In about 10 months, everyone will be accounted for. Also, from what I have been told, there is a one-year limit on filing a complaint. If it ain’t filed by those retirees within that period, that train has already left and it ain’t coming back for anyone else to climb on board.

About the loss in career expectations? God, what on earth is the government doing? They should know that we deserve everything we were never promised, and we deserve it now!

Finally, in regard to Air Canada not being able to afford this? Better to ask ourselves how we are going to afford paying the damages that we and Air Canada have been warned about for well over five years now. And how much in legal fees has both Air Canada and ACPA wasted trying to fix the leak in this tap. Well, guess what. The tap handle is about to break completely off.

[Rockie]

You might want to check out the Human Rights legislation regarding the layoff of existing employees to accomodate the return of other employees....even those who lost their positions due to discrimination......I'm not sure that is legally allowed.

I have checked and have found nothing, but there may be some other precedent that I don't know about. Consider this though:

Air Canada, and certainly not ACPA or its pilots have EVER considered the potential consequences of losing this fight. In fact ACPA and many of its pilots have deliberately dragged this thing out hoping to retire as many people as possible while the legal battles run their course and haven't for a second factored in potential reinstatements or financial liability despite many people telling them they should.

Whose fault is that?

Do we expect the CHRT to sanction discrimination against close to 200 pilots because ACPA chose to be so irresponsible and not consider the consequences of their actions?

If it turns out no employees can be displaced (which would be a good thing in my opinion since new hires are not to blame for this train wreck) then I think we can expect some steep financial settlements to those reinstated pilots the company is not able to absorb. And guess what? Us pilots get to pay half thanks to ACPA's generous offer to the company.

Again, whose fault will that be?

[Raymond Hall]

Canadian Human Rights Act

53. (2) If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate…

…

54. (2) No order under subsection 53(2) may contain a term

(a) requiring the removal of an individual from a position if that individual accepted employment in that position in good faith…

[43S/172E]

M.T.K. since you are being a tad overly optimistic about hiring given current economic climate in North America and Europe, can you please explain how a severe economic downturn will affect the pilot group using the mid 1990's as a model (assuming the fly past 60 win)?

Also how long did it take the laid off pilots to get back in at Air Canada?

Or will this be attributed to just the normal progression of human rights in Canada?

[Rockie]

M.T.K. since you are being a tad overly optimistic about hiring given current economic climate in North America and Europe, can you please explain how a severe economic downturn will affect the pilot group using the mid 1990's as a model (assuming the fly past 60 win)?

Also how long did it take the laid off pilots to get back in at Air Canada?

Or will this be attributed to just the normal progression of human rights in Canada?

Could you please explain what the economy has to do with human rights?

[eep...2 Green]

Ray you have run out of other peoples money... give it up!

[Lost in Saigon]

If the RP became a fully qualified First Officer (Which is what you are implying would be required), then the position would have to be bid as such.

Why so? Does giving the RP training to make him "fully qualified" for ICAO purposes change his bid status? No. He is still an RP because he bid RP. He is just a more qualified RP than the existing RP. Little or no additional cost to the company.

Air Canada Relief Pilots probably meet the "Fully Qualified" standard now. Initially they are trained exactly the same as First Officers. Same Ground school, same Simulator. They even do V1 cuts. The only difference is when it comes to the final PPC. They don't meet "company" requirements for an FO PPC because some items are left out, but they do get a FULL Type Endorsement in most cases.

If you hold a Type Rating on the aircraft, would that not mean "Fully Qualified" for ICAO?

Here is what ICAO says:

In commercial long-range air transport, the designated flight crew may be augmented, and can number three, four or even more pilots. In the case of flight crew comprising more than two pilots, the intent of § 2.1.10.1 is to ensure that, when the pilot-in-command is over 60 but less than 65 years of age, the operating flight crew includes at least one other pilot, who is licensed, appropriately rated for all phases of flight, current, and younger than 60 years of age. It is suggested that during high workload phases of flight (such as flight below 10,000 feet above ground level) at least one pilot seated at the controls should be under 60 years of age.

[Les Lavoie]

Ray you have run out of other peoples money... give it up!

To refute what you wrote, as long as I am on this earth, Raymond Hall will not run out of money. Is that clear enough for you or do I have to spell it out in some foreign langage.

[Rockie]

Ray you have run out of other peoples money... give it up!

This unfortunately is typical of the knowledge level Air Canada pilots have regarding this subject. Their animosity toward individuals completely precludes any objective thought on what is really transpiring, and when the hammer drops they will no doubt heap further blame on those individuals for their own self-imposed ignorance of the facts.

Time to wake up.

[rudder]

While there have been several failures by ACPA on this subject (i.e. failure to recognise, failure to act), the critical failure has been a failure to lead. ACPA functions as the typical tail wagging the dog irrespective of reality.

Delay, deny, obfuscate. These are not the tactics used by true leaders. And as a result, an issue that was manageable will now be an issue that will provoke internal discord for many years to come.

Membership polls reflect what people want, not necessarily what is achievable under the circumstances. This battle was lost with the ICAO age rule change. Are there still those that believe that they are insulated from the law? Apparently so.

The issue is no longer which carriers in Canada are age 65 airlines, but rather which ones are not? Only 1.

[Rockie]

Membership polls reflect what people want, not necessarily what is achievable under the circumstances.

Had ACPA properly assessed this issue and been forthright with ALL the facts the membership could at least have made their preference known from an informed position. But ACPA's complete failure in that regard does not excuse the members themselves from staying deliberately uninformed especially when they know from the TA1 debacle that ACPA withholds information.

The facts have always been available for anybody to do their own objective analysis as I did. The eventual conclusion to this fiasco has been impossible to miss from the beginning for anybody willing to face it.

[SilentMajority]

The real problem here, in addition to what has been included in the previous few posts, is the one undying philosophy that is held by all of those who are opposed to FP60 (that is until just prior to their 60th birthday) and has been posted here on this site numerous times before, namely:

"WE just don't want it to happen"........ and as such ACPA has been given the perfect opportunity of "preaching to the converted" since Day 1.

[29chev]

rudder said

The issue is no longer which carriers in Canada are age 65 airlines, but rather which ones are not? Only 1

Good point, by the way how many are post age 65 airlines?
Just asking.
29chev

[DrBoeing]

Ray you have run out of other peoples money... give it up!

What an ignorant statement! They actually let you fly????

[Morry Bund]

Ray you have run out of other peoples money... give it up!

Makes a lot of sense, in your flat-earth, deny-reality logic, doesn't it? He is running out of the money that his pilot clients don't pay him for the legal fees that he has never charged them. As a result, all of these legal proceedings will likely come to an ignominious end any day now.

[Norwegianwood]

The posties (female) waited 28 years, now look what the P.O. is on the hook for, maybe acpa, which is on the hook for half of any possible (read probable) damages should take head of the final analysis on mandatory retirement of it's OWN MEMBERS.................... Oh sorry, too late!

"Ducharme told CBC News that with interest, the decision could mean up to $250 million in damages for clerical staff who worked at Canada Post between 1983 and 2002. That figure is an estimate and the precise damages figure after interest is not yet clear."

[Raymond Hall]

Here is the Globe and Mail article describing the win:

http://www.theglobeandmail.com/news/nat ... le2240100/

Note the following two sentences:

The tribunal ruled in 2005 that Canada Post had violated the act and awarded back pay and interest of about $150 million.

But the Federal Court of Appeal set aside the tribunal's decision, saying the finding of discrimination simply could not be supported.

Here is the original October, 2005 279 page, 1,023 paragraph CHRT decision that was reinstated today by the Supreme Court of Canada in a unanimous, and almost unprecedented decision "from the Bench":

http://chrt-tcdp.gc.ca/search/files/t299_1392de.pdf

The Order is as follows:

[1023] Based on all of its foregoing findings and conclusions, including a breach of section 11 of the Act, the Tribunal Orders that:

(1) The Respondent shall pay to each of its eligible Clerical and Regulatory employees an award for lost wages by closing the wage gap between employees of the Complainant and Comparator groups represented in this Complaint.

(2) The wage gap between the Complainant group and the Comparator group shall be determined and calculated by a level-to-line technique, preferably following the Kervin/Commission Wage Adjustment Model.

(3) The Respondent shall provide access to the individual employee records, as required, to enable final wage gap calculations to be determined.

(4) The finally determined award of lost wages (“pay for all purposes”) for each eligible CR employee, by whatever methodology, shall be discounted by 50%.

(5) The back-pay compensation period shall extend from August 24, 1982 to June2,2002.

(6) Simple interest shall be calculated annually on the amount of the 50% discounted award of lost wages, and paid to each eligible CR employee for each year, or fraction thereof, of the back-pay compensation period.

(7) The simple interest shall be determined using the Canada Savings Bond rate in effect on September 1st of each year concerned.

(8) Between the date of this Decision and the date of the ultimate payment of the 50% back-pay award of lost wages, post-judgement simple interest shall be paid to each eligible CR employee at the applicable post-judgement rate prescribed by the Courts of Justice Act of Ontario or comparable provincial legislation.

(9) The Respondent shall be responsible for making remittances, as necessary, that may arise as a result of any of these Orders, with respect to statutory-based nonwage forms of compensation.

(10) The Complainant’s claim for special compensation pursuant to paragraph 53(2)(e) or subsection 53(3) of the Act is hereby dismissed.

(11) The claims for legal costs are hereby dismissed.

(12) The Respondent’s submission that both it and the Alliance should be jointly liable for any substantiated wage discrimination is hereby dismissed.

(13) The Tribunal shall retain jurisdiction to deal with issues that may arise in the implementation of its Decision, on an “as needed” basis.
--------
Note Clause 8 -- interest on $150 million for 6 years...