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

[MackTheKnife]

2 acpa pilots, were on the HILL, trying to meet with the Committee.

[777longhaul]

Re:Localizer.

Do you work for Air Canada or are you at Jazz?

Rockie good question. Have a look at the other posting selection, on General Aviation, just above the Air Canada header, look at Teacher, who refers to him as his Jazz buddy. (Sky Regional ---Teacher --- Feb 10 Thur)

Would not waste anymore time on those two, trying to show them any reasoning, or respectful dialog, about any of the issues, at AC. As with a few others who try to stir it up, with no reason or validity...behind their approach.

[Mechanic787]

FETCO is in favour of it with some conditions. They want language ensuring that severance pay would be owing only in the event of involuntary termination (fired, as opposed to involuntarily retired. See next paragraph). They want provisions limiting a person's access to some benefits like insurance and disability as they get older. They also want some undetermined age provision on pension (don't know the details) as well as harmonization with CPP/OAS.

They also want some way for a company to force someone to retire if they are no longer capable of performing their function. They referred to that in the context of age but what I think they meant was in terms of medical fitness and competency, exactly like what we do in the aviation industry.

It all seemed reasonable to me looking at it from an employer standpoint.

Rockie: Here is a lesson in Politics 101.

FETCO is not what it appears. First, have you ever heard of this organization before?

Second, why were they there? To represent the interests of those employers? Really?

They were there with their vested interests to ensure that they put so many restrictions on the Private Member's Bill that it could not survive this session of Parliament. End of story. It is a lobbyist group, financed by those who oppose the legislation. A group that clearly understands how to throw a huge monkey-wrench into the process. Successfully.

Mark my words. They got to at least one of the Members of the Committee (hint: Estevan, Saskatchewan), and if they succeed in getting him to impose conditions on the legislation, it won't pass through Parliament and the Senate before the government falls, because politics is politics.

What conditions? Totally exempting any company that has a DBB pension plan from the total effects the legislation (similar to the Saskatchewan Potash Corporation case from New Brunswick, SCC 2010). I am not kidding. They are proposing that any company that has a pension plan (of any kind) can continue to terminate the employment of employees at any arbitrary age. If this plan goes through, ACPA wins, Air Canada wins, and the Coalition loses.

This is not hypothetical—they are actually threatening such a restriction. And they could succeed.

[777longhaul]

FETCO

You can goggle it.



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Proactive DisclosureProactive DisclosureFederal Labour Standards Review FETCO Submission
Table of Contents Next

Introduction
FETCO (Federally Regulated Employers - Transportation and Communications), is an organization consisting of a number of major employers and employer associations in the transportation and communications sectors coming under federal labour jurisdiction.

FETCO's interests relate to public policy issues at the federal level affecting employer-employee relations. These include collective bargaining, safety and health, labour standards, pension legislation, human rights, pay equity, employment equity and privacy.

FETCO is the major employer organization in Canada at the federal level dealing with human resource/human rights/employee relations matters.

The FETCO member organizations are:

Air Canada
Archer Daniels Midland
BC Maritime Employers Association
Bell Canada
Canada Post Corporation
Canadian Airports Council
Canadian Association of Broadcasters
Canadian Broadcasting Corporation
Canadian National Railways
Canadian Pacific Railway
Canadian Trucking Alliance
Iron Ore Company of Canada
Maritime Employers Association
NAV Canada
SaskTel
Telus
VIA Rail Canada
Western Grain Elevators Association
FETCO employers have a total of 367,000 employees, 204,000 of whom are unionized. This constitutes the majority of all employees and about two-thirds of all unionized employees covered by Part III of the Canada Labour Code.

History of Part III
What is now Part III of the Canada Labour Code was enacted in 1965. It was originally a basic labour standards document covering only such issues as hours of work, minimum wages, vacations and general


This is just the intro to their site.

[duranium]

And remember folks that it's all about the law and NOT fairness. If one can manipulate the law for personal benefit then that's a great thing in this country.

If I may... You get a speeding ticket for going 51 KMH in a 50 KMH zone. It's not fair, but you still have to pay the piper because you did not conform to the law.

[duranium]

Rhetorical question.

What makes ACPA and many of its pilots think they can stop social evolution dead in its tracks at Air Canada's door?

From what I read here, how about : We, Air Canda pilots, are the sine qua non, the upmost, the cream of the piloting community and WE do not have to conform to any law that we do not wish to conform to and, anyway, We are above the law

[duranium]

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?

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.

First off, I have very high consideration and respect for your opinions and posts.

But, in reading your above post, your cited example above does not relate to age discrimination, a Charter issue, but to a simple contract article. Any way you look at it, and using the CHRA as a filter, that example does not contravene any law. Your contract is valid, as long as it conforms to the law of the land and awarding of positions is not based usually on age, retiring someone against one's will, because of age, is.

So, IMHO, yes, the premise of your example is valid on picking sides because age is not an issue

[duranium]

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?

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.

Could you expand your hint into some tangible phrases so we, the outsiders, can get a grasp of the magnitude of numbers you are alluding to. ?

[vic777]

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

NO, the union should have had enough sense to know that the "provision" in question is archaic and no longer valid or defensible. ACPA is now trying to use your argument to defend their actions. We all know that their actions were undertaken to protect the interests of the greedy ACPA elite.

[Rockie]

What conditions? Totally exempting any company that has a DBB pension plan from the total effects the legislation (similar to the Saskatchewan Potash Corporation case from New Brunswick, SCC 2010). I am not kidding. They are proposing that any company that has a pension plan (of any kind) can continue to terminate the employment of employees at any arbitrary age. If this plan goes through, ACPA wins, Air Canada wins, and the Coalition loses.

This is not hypothetical—they are actually threatening such a restriction. And they could succeed.

I started to get the same impression, but time was so limited nobody had a chance to actually dig down and see exactly what FETCO wanted in that regard. There was the assumption it seemed that everybody in that room thought having a DB pension plan meant everybody at the company retired at 60 or 65 with the full pension, in our case $120k/years. I was hoping the witnesses would have had the time to debunk that myth and detail the reality. The issues FETCO raised have been presumably addressed in equivalent provincial legislation, and they also have the benefit of time to see if there have been any problems with the legislation. Hopefully the committee won't be unduly delayed beyond the next election call in forwarding this for third reading. If it is they'll deal with it next parliament. They're already ridiculously behind the times and events have already overtaken parliament on this.

There was also the member from Sault Ste. Marie who raised the issue of preventing young pilots from entering the industry as if that was reason enough to force retirement on people. That could have been addressed on so many levels, but wasn't due to time constraints.

[Brick Head]

Gentlemen,

To begin I obviously have no idea where this will end up, or if it won't hit a snag, other than if the legislation passes there will be a line in the sand at some point in the future, to provide warning and an orderly transition for all involved. That in itself IMO is the very least the government should be providing.

As for the debate going on on the hill? And here? This issue keeps coming back to the same one. The one you guys vehemently refuse to acknowledge. The issue that is much larger than all of us. The socioeconomic benefit to society of deferred compensation systems and how to address the issue in the absence of mandatory retirement.

Contrary to the opinion on this board which is individualist, the effects on society, what is best for society in general, the young, the retired, is actually important, and should be to Parliament.

Yes Rockie and longhaul777 the young do matter to society as they are critical to stability. Your dissing of Localizer is exactly what is wrong with your approach to this issue. Your message is they don't matter. In the larger societal context your message reads like young people in general don't matter. In fact they do matter. They are critical.

an example.

A sudden drop in retirements in a skilled profession leads to. Young people stop entering the profession because there are no job opportunities, which leads to. The inevitable retirement of those skilled workers, which leads to. A shortage of skilled replacement workers due to the vacuum left by no one entering the profession.

The above amounts to bad Government policy. It is something Ontario will be grappling with in the near future as it pertains to teachers in particular.

What is required is a considered, thoughtful, balanced approach. Not an approach which discards what is best for society in favor of individual rights.

[Mechanic787]

The issues FETCO raised have been presumably addressed in equivalent provincial legislation, and they also have the benefit of time to see if there have been any problems with the legislation.

No, they haven't. Therein lies the problem. There are three provinces where legislation was introduced to maintain mandatory retirement for employees with (bona fide) pension plans when legislation permitting mandatory retirement in general is repealed: Alberta, Saskatchewan and New Brunswick.

Prima facie, that legislation violates the Charter, especially in light of last week's Federal Court decision. The problem is that it has yet to be challenged on that ground. The Supreme Court of Canada in the Saskatchewan Potash decision stated that it would have liked to be able to deal with the legislation on the Charter grounds, but that it couldn't because that issue was not properly placed before it. So far, the Vilven-Kelly case is the leading case, and it won't get to the SCC for at least another two years.

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.

FETCO is a professional employer's lobby group that by its own statement, was founded to offset the political power of labour organizations. Judging by the attack done on the witnesses by one of the members of the Committee, including shunting aside the evidence of Professor Kesselman and demanding answers to economic questions from Mr. Kelly instead, the employers are getting their money's worth from their lobbyists.

FETCO still has a number of other means of accomplishing its objectives with this Parliamentary Committee, in addition to seeking the above amendment. The hearing is nowhere near finished yet, and the whole Bill is extremely vulnerable. Welcome to politics. It ain't over 'till its over.

[Rockie]

Yes Rockie and longhaul777 the young do matter to society as they are critical to stability. Your dissing of Localizer is exactly what is wrong with your approach to this issue. Your message is they don't matter. In the larger societal context your message reads like young people in general don't matter. In fact they do matter. They are critical.

Did I say the young don't matter? I said repeatedly the young will be fine despite this catastrophic ruling that will destroy their careers forever. The truth is Air Canada is the only place that imposes mandatory retirement at age 60, every other airline goes beyond to at least 65. Have the young been destroyed there? Has the entire airline industry with the exception of Air Canada been destabilized? Have provincially regulated industries and the young people that work for them been irrepairably traumatized?

As for the debate going on on the hill? And here? This issue keeps coming back to the same one. The one you guys vehemently refuse to acknowledge. The issue that is much larger than all of us. The socioeconomic benefit to society of deferred compensation systems and how to address the issue in the absence of mandatory retirement.

You have been asked repeatedly how deferred compensation schemes have been damaged, and how that can be addressed. Still no answer. The only reason this issue gets raised at all is because you are fixated on it. The CHRT, CHRC, courts and governments are not concerned for the fate of deferred compensation. Deferred consensation schemes are not sacrosanct. The wellbeing of society does not hinge on deferred compensation schemes. Let it go. This change is here and our pay system will adapt to it if necessary.

[Rockie]

The issues FETCO raised have been presumably addressed in equivalent provincial legislation, and they also have the benefit of time to see if there have been any problems with the legislation.

No, they haven't...

I see what you mean. Why wouldn't a challenge against maintaining mandatory retirement in companies with DB plans be successful? I would think it would be easy to prove in a case like Air Canada where people are hired too late to acquire a full pension, and the hardship for women who typically cannot have a full career due to family issues has already been used as rationale many times.

[vic777]

You have been asked repeatedly how deferred compensation schemes have been damaged,

I missed something here, what exactly is the deferred compensation scheme that we are talking about?

[Brick Head]

You have been asked repeatedly how deferred compensation schemes have been damaged, and how that can be addressed. Still no answer.

Rockie,

All that question does is bait me into a debate on the legality of a specific alternative. Why have that debate with someone who refuses to acknowledge deferred compensation even exists? First there needs to be an acknowledgment that deferred compensation isn't just a fairy tale. Next there needs to be an acknowledgment that the fairy tale doesn't get punted with the end of 15(1)c. Then? Then we could discuss how. Till then why bother?

The only reason this issue gets raised at all is because you are fixated on it. The CHRT, CHRC, courts and governments are not concerned for the fate of deferred compensation.

Rockie buddy, read the rulings. Not just the conclusions. Both the Tribunal and Federal court rulings have been littered with subject matter as to the importance of the benefit system. Both speak of protecting it absent mandatory retirement. What do you think they are talking about "effectively preserving" for crying out loud? Motherhood? Chocolate swirl ice cream? In fact the more your council pushes the opinion of irrelevance wrt this issue the more clarity we have been getting from the courts.

I get why you guys have taken the position the issue is irrelevant. It is a threat to how you want this to play out. I get it. It is just that as you gasp at how ACPA can still hold apparent hope that mandatory retirement can be preserved, I too look at you guys with the same rolling eyeballs wrt to this issue. It is in black and white.

Your right that not many bring it up. Who would enter this shark tank but the insane anyway?

Like I said before this thread is usually more like a pep rally than a discussion of the issues.

[Brick Head]

I missed something here, what exactly is the deferred compensation scheme that we are talking about?

Vic777 thanks I missed it. Rockie was that a slip? You now recognize deferred compensation systems exists?

That's step one good buddy. Now all I need you to do is admit the socioeconomic importance to the system does not expire with 15(1)c

[Rockie]

Paid peanuts at the beginning, paid lots at the end.

Brickhead thinks that system is dead by removing mandatory retirement. He keeps talking about measures to compensate for that which nobody has any problem with provided they are not discriminatory. In fact lots of people have talked about modifications to the pay system to compensate. I just don't see where there is a problem.

If our deferred compensation scheme is found to be inappropriate with the elimination of mandatory retirement then modify it as necessary or toss it out completely and get a new system.

Problem fixed.

[Rockie]

All that question does is bait me into a debate on the legality of a specific alternative. Why have that debate with someone who refuses to acknowledge deferred compensation even exists? First there needs to be an acknowledgment that deferred compensation isn't just a fairy tale. Next there needs to be an acknowledgment that the fairy tale doesn't get punted with the end of 15(1)c. Then? Then we could discuss how. Till then why bother?

Deferred compensation schemes exist. We have one. Deferred compensation doesn't get punted with the end of 15(1)c. I have never said otherwise. Now answer the question.

Rockie buddy, read the rulings. Not just the conclusions.

Brickhead buddy, read the conclusions. Not just the odd obscure paragraph that considers the factors.

[Brick Head]

Paid peanuts at the beginning, paid lots at the end.

Brickhead thinks that system is dead by removing mandatory retirement. He keeps talking about measures to compensate for that which nobody has any problem with provided they are not discriminatory. In fact lots of people have talked about modifications to the pay system to compensate. I just don't see where there is a problem.

If our deferred compensation scheme is found to be inappropriate with the elimination of mandatory retirement then modify it as necessary or toss it out completely and get a new system.

Problem fixed.

Actually paid less than your productivity at the beginning and more than your productivity is worth at the end is more accurate. Deferred compensation is exactly what the words say. Compensation that is rightfully yours delayed until a future date.

Now that we have agreement it isn't fairy tale after all? How do we make sure the delayed compensation of individuals gets to its rightful owner in the absence of mandatory retirement?

Keeping in mind status pay is the dismantling of our present benefit system.

[vic777]

Paid peanuts at the beginning, paid lots at the end.

I don't think we have a deferred compensation scheme. It is not guaranteed it only goes to those who are senior, and bid it. Some retire at Sixty on the EA-32 either by choice or because of Seniority. Also if all 3000+ Pilots on our list were exactly Thirty years old. Those most senior would get max pay for thirty years and those junior would get minimum pay for Thirty years. There is no, "deferred pay system". There's a formula pay system.

[Brick Head]

Deferred compensation schemes exist. We have one. Deferred compensation doesn't get punted with the end of 15(1)c. I have never said otherwise. Now answer the question.

Rockie your responding to quick for me.

"The answer my friend is blowing in the wind"

Okay now your funnin with me. That was too easy.

Now Deferred compensation really exists and it will still exist post mandatory retirement?

Did someone hack your profile?


The answer is an alternative that ensures delayed income reaches the rightful owner of the income.

[Brick Head]

There is no, "deferred pay system". There's a formula pay system.

Oh and I was so hopeful for a break through...........

Vic777 no worries man. He is just baiting me.

[vic777]

Also if AC went to an all EA-32 fleet ... there would be no "high pay level" for the Senior Pilots. Therefore there is no ...."deferred compensation scheme" .... never was ..... let's stick to reality guys!

[Brick Head]

Also if AC went to an all EA-32 fleet ... there would be no "high pay level" for the Senior Pilots.

Actually not correct. Graduated tenure pay scales. FO versus CA. Pension. Looks like a duck. Quacks like a duck............

Therefore there is no ...."deferred compensation scheme" .... never was ..... let's stick to reality guys!

You first.