Mandatory Retirement Repeal Passes 2nd Reading in Parliament

[duranium]

Note to self

Write in one's agenda the following: Next high priority, find a front row seat in the grandstands before the out of control speeding train hits the granite face. Should be fun to watch the total disintegration.

[Stu Pidasso]

Question for Raymond Hall:

Do you still believe that (already) retired Pilots will be back flying for A/C?

[Ah_yeah]

And the coffin was finally closed tight with a loud groan[/quote]

(Chuckle) Is it just me that sees the humour in that ?

[Raymond Hall]

Question for Raymond Hall:

Do you still believe that (already) retired Pilots will be back flying for A/C?

One of the issues that was discussed during the CHRT's last case management conference call with the Tribunal and all counsel, for the third set of litigants is the possibility of Air Canada permitting the re-employment of Complainants, on a temporary basis, pending final judicial reviews and appeals of the earlier Tribunal decisions in the courts, in a capacity other than as pilot-in-command. Non-PIC for the simple reason that the ICAO restriction applies to PICs only. The Tribunal left that for the parties to discuss among themselves, prior to the next case management conference call. [Case management conference calls deal strictly with procedural matters, in order to facilitate the orderly conduct of a hearing, including potentially getting agreement on the specific issues outstanding, an agreed statement of facts, and the number of days and timing for the hearing itself.]

On a separate topic, the Federal Court of Appeal yesterday concluded its hearing into the appeal of the judicial review of the February, 2011 Federal Court decision denying ACPA's request to overturn the Tribunal decision upholding the Charter violation, reserving its decision. The decision should be rendered by the Court within four months, however it could be released as early as late January.

On another separate topic, Bill C-13 received First Reading in the Senate yesterday, and will go to second reading on Friday:

http://www.parl.gc.ca/Content/Sen/Chamb ... Language=E


Keeping Canada's Economy and Jobs Growing Bill

First Reading

The Hon. the Speaker informed the Senate that a message had been received from the House of Commons with Bill C-13, An Act to implement certain provisions of the 2011 budget as updated on June 6, 2011 and other measures.

(Bill read first time.)

The Hon. the Speaker: Honourable senators, when shall this bill be read the second time?

(On motion of Senator Carignan, bill placed on the Orders of the Day for second reading two days hence.)

[TheStig]

Question for Raymond Hall:

Do you still believe that (already) retired Pilots will be back flying for A/C?

One of the issues that was discussed during the CHRT's last case management conference call with the Tribunal and all counsel, for the third set of litigants is the possibility of Air Canada permitting the re-employment of Complainants, on a temporary basis, pending final judicial reviews and appeals of the earlier Tribunal decisions in the courts, in a capacity other than as pilot-in-command. Non-PIC for the simple reason that the ICAO restriction applies to PICs only. The Tribunal left that for the parties to discuss among themselves, prior to the next case management conference call. [Case management conference calls deal strictly with procedural matters, in order to facilitate the orderly conduct of a hearing, including potentially getting agreement on the specific issues outstanding, an agreed statement of facts, and the number of days and timing for the hearing itself.]

Apologies once again for my ignorance, but I'm not a lawyer and could not decode all of that response. Was that a "yes I do still believe that Pilots who have already retired will be back in flying for Air Canada, or no I do not"?

That said, what I did take out of that is that the case being presented is that it seems feasible for a (third) group of pilots to be re-employed on a temporary basis while waiting for a review of an earlier decision that had a different set of litigants who had been re-empoyed (in non-PIC positions) removed. Seems a bit far fetched?

[duranium]

And the coffin was finally closed tight with a loud groan

(Chuckle) Is it just me that sees the humour in that ?[/quote]

From what is written here by many, AC pilots stand to lose a fair amount of their paycheque in extra dues if it goes against them at the end of the final bell. So........, if you find that humourous, go right ahead and laugh.

I know of a certain group of individuals that will be laughing all the way to the bank, otherwise known as they will get the last laugh because AC pilots never did learn to read the law and the smirk many had on their face during these proceedings, believing hard as nails they were above said law, is about to turn to excruciating pain. Talk about disappearing money burning a hole thru your pockets

[Raymond Hall]

Apologies once again for my ignorance, but I'm not a lawyer and could not decode all of that response. Was that a "yes I do still believe that Pilots who have already retired will be back in flying for Air Canada, or no I do not"??

Yes, I do. Would the fact that new Tribunal Chair suggested that Air Canada and ACPA consider temporarily reinstating some pilots, pending the final outcome of these proceedings give us any indication of that possibility? Indeed.

That said, what I did take out of that is that the case being presented is that it seems feasible for a (third) group of pilots to be re-employed on a temporary basis while waiting for a review of an earlier decision that had a different set of litigants who had been re-empoyed (in non-PIC positions) removed. Seems a bit far fetched?

Not at all. The previous two pilots were both over 65 and both waived any claim to returning to Air Canada in the position of Captain.

We are coming to closure on this issue, despite the delays. The Charter issue will be determined by the FCA very soon, and the BFOR issue will not impede the scheduling of further hearings, I predict. Except for the July decision on BFOR (which I have criticized in no limited amount in other threads) both Air Canada and ACPA are on the back side of these two issues, seeking the Court(s) to overturn previous rulings. From an outcome point of view, a favourable BFOR determination for the employer is far more problematic for the Complainants (though not likely, in my view) given the fact that the defence supersedes both the Charter and the 15(1)(c) merits outcome, and it would supersede the legislative repeal provisions as well. So, if the complainants win on either the Charter issue or the merits issue, the only impediment then is the BFOR issue. But there are no ICAO restrictions on F/Os, and there is a serious question as to when the number of pilots-in-command over age 60 would move the matching of over-age 60 pilots-in-command with under age-60 F/Os and R/Ps from the level of “hardship” to “undue hardship.” Likely not any time soon.

Also, recently Air Canada apparently started making the RPs fully licensed and qualified on their initial conversion course, to First Officer standards, which, of course, diminishes the impact of the Over-Under rule substantially. In my view, we are a long, long way from the BFOR issue being any more problematic for Air Canada than it is for any of the other Canadian or foreign air carriers who all must meet its requirements.

In short, reinstatement, and soon, is not at all unrealistic or far-fetched.

[TheStig]

Apologies once again for my ignorance, but I'm not a lawyer and could not decode all of that response. Was that a "yes I do still believe that Pilots who have already retired will be back in flying for Air Canada, or no I do not"??

Yes, I do. Would the fact that new Tribunal Chair suggested that Air Canada and ACPA consider temporarily reinstating some pilots, pending the final outcome of these proceedings give us any indication of that possibility? Indeed.

That said, what I did take out of that is that the case being presented is that it seems feasible for a (third) group of pilots to be re-employed on a temporary basis while waiting for a review of an earlier decision that had a different set of litigants who had been re-empoyed (in non-PIC positions) removed. Seems a bit far fetched?

Not at all. The previous two pilots were both over 65 and both waived any claim to returning to Air Canada in the position of Captain.

We are coming to closure on this issue, despite the delays. The Charter issue will be determined by the FCA very soon, and the BFOR issue will not impede the scheduling of further hearings, I predict. Except for the July decision on BFOR (which I have criticized in no limited amount in other threads) both Air Canada and ACPA are on the back side of these two issues, seeking the Court(s) to overturn previous rulings. From an outcome point of view, a favourable BFOR determination for the employer is far more problematic for the Complainants (though not likely, in my view) given the fact that the defence supersedes both the Charter and the 15(1)(c) merits outcome, and it would supersede the legislative repeal provisions as well. So, if the complainants win on either the Charter issue or the merits issue, the only impediment then is the BFOR issue. But there are no ICAO restrictions on F/Os, and there is a serious question as to when the number of pilots-in-command over age 60 would move the matching of over-age 60 pilots-in-command with under age-60 F/Os and R/Ps from the level of “hardship” to “undue hardship.” Likely not any time soon.

Also, recently Air Canada apparently started making the RPs fully licensed and qualified on their initial conversion course, to First Officer standards, which, of course, diminishes the impact of the Over-Under rule substantially. In my view, we are a long, long way from the BFOR issue being any more problematic for Air Canada than it is for any of the other Canadian or foreign air carriers who all must meet its requirements.

In short, reinstatement, and soon, is not at all unrealistic or far-fetched.

Raymond thank you for your direct response. Trying to stay objective with an issue that is as touchy as this can be difficult, and I'll be the first to admit to reading your responses critically. Disagreeing with your opinion doesn't mean, I don't value hearing it.

Since the R/P's are now fully type rated F/O's the position is nothing more than a payscale. For that matter, one that could be negotiated away in the upcoming months.

It's interesting to hear how the reviews/rulings are proceeding, would be even more interesting to hear about what's happening outside of the courtrooms.

[Raymond Hall]

It's interesting to hear how the reviews/rulings are proceeding, would be even more interesting to hear about what's happening outside of the courtrooms.

I have little knowledge now about what is happening outside of the courtroom within Air Canada except for what my clients tell me, due to the fact that that it has been almost 30 months that I set foot inside an Air Canada flight deck or flight planning facility.

However, given the impending passage of the legislation, I sense a substantial reduction in the rhetoric. Almost everyone senses the finality of it now. Even Air Canada management has changed its tune—I was informed yesterday that one of the senior Air Canada Flight Ops managers addressing the most recent inductees’ class this week told them not to be concerned about the removal of the age 60 cap, that it would not be significant and that at most it would have only a minor influence on their career progression. Plus ҫa change…

As I mentioned earlier in this thread, whereas all of the provincial jurisdictions, including Ontario have already eliminated mandatory retirement in their legislation, save for a few narrow exemptions such as BFOR, Ontario recently re-introduced mandatory retirement for full-time (not part-time) firefighters. Bill 181, proposing the legislation, passed unanimously on May 31, 2011 and was given Royal Assent, making it law, on June 1, 2011.

Last week, on behalf of one of my clients, a former full-time firefighter in Ontario whose employment was was recently terminated by reason of mandatory retirement at age 60, I filed a Notice of Constitutional Question, a Charter challenge identical to the Charter challenge that I filed in respect of the CHRA mandatory retirement exemption in 2006, alleging that the new legislation infringes the equality provisions of the Charter and is not saved by Section 1 of the Charter. The challenge will be heard initially by the Human Rights Tribunal of Ontario, and I expect the outcome to be largely affected by the existing decisions from the superior courts, including the Vilven-Kelly Federal Court decision, the Manitoba Queen’s Bench decision (CKY) and a previous case from the B.C. Court of Appeal, as well as from the eventual decision from the Federal Court of Appeal in the hearing concluded this week.

To me, the legislation makes no sense, because it is totally redundant. You don’t need to legislate mandatory retirement on the basis of safety, its purported purpose, because that is what the BFOR defence provides, and the BFOR defence applies with or without any legislation forcing mandatory retirement.

Why was it implemented? It was implemented at the behest of (guess who) the firefighters’ union, not the employers or any public interest group. Plus ҫa change…

[Norwegianwood]

First Reading

The Hon. the Speaker informed the Senate that a message had been received from the House of Commons with Bill C-13, An Act to implement certain provisions of the 2011 budget as updated on June 6, 2011 and other measures.

(Bill read first time.)

The Hon. the Speaker: Honourable senators, when shall this bill be read the second time?

(On motion of Senator Carignan, bill placed on the Orders of the Day for second reading two days hence.)

Raymond, has the second reading passed or can anybody shed some light. Thanks. NW

[Raymond Hall]

Raymond, has the second reading passed or can anybody shed some light. Thanks. NW

The Senate Committee will be hearing witnesses and discussing the Bill tonight, for two hours, starting at 6:45 PM ET.

The Committee may or may not complete its discussion of the Bill in one sitting. If not, it would likely finish in a second sitting, with the Bill going back to the Senate for third reading and passage within days. Witnesses are generally allocated not more than 7 minutes. Sometimes only 5, depending on the issue. The Committee members are then given time to ask questions of the witnesses. From the length of the list of witnesses, I would guess that the hearing will not finish in one sitting.

Here is the link to the Committee agenda for tonight:

http://www.parl.gc.ca/SenCommitteeBusin ... g_id=12455

As you see, it is being webcast, so if you want to observe the proceedings, just click on the webcast link:

http://senparlvu.parl.gc.ca/Guide.aspx? ... Language=E

It may or may not be televised on CPAC.

[Norwegianwood]

Thanks for that, NW

[Raymond Hall]

Hearing completed in less than two hours. There is a video clip of the session available at the previously posted link, but there is hardly any testimony on the mandatory retirement issue. Absolutely no controversial issues raised regarding the proposed amendments re mandatory retirement.

Today's witnesses were from the Government agencies responsible for introducing the various sections of the Bill.

The Senate Finance Committee will reconvene on Tuesday morning, December 6th to hear witnesses from the public affected by the legislation. That witness list has not yet been made available.

[Rockie]

The Senate Finance Committee will reconvene on Tuesday morning, December 6th to hear witnesses from the public affected by the legislation. That witness list has not yet been made available.

So the question is, will ACPA send representatives appealing to the Senate to retain mandatory retirement throughout Canada so they can get that faster upgrade to the A330?

[Raymond Hall]

So the question is, will ACPA send representatives appealing to the Senate to retain mandatory retirement throughout Canada so they can get that faster upgrade to the A330?

I don't believe that that is the way this is hearing is structured. With this Committee, witnesses don't get "sent," rather, they get
"invited." The primary thrust of this Bill is financial. The Committee is the Senate Finance Committee, not the Senate Human Resource Committee. The Committee's role is to oversee government financial issues, not human resource issues, as was the case with the Private Member's Bill before the Parliamentary Committee on Human Resources that dealt only with mandatory retirement.

Until the witness list is published, we have no way of knowing whether the CHRA portion will be addressed by any witness at all. It is an extremely minor part of this large legislative package. My guess is that it won't, because there are no apparent negative financial consequences to the government by elimination of forced retirement, a process that heretofore has converted pension fund inflows to outflows.

[Martin Tamme]

I don't believe that that is the way this is hearing is structured. With this Committee, witnesses don't get "sent," rather, they get
"invited." The primary thrust of this Bill is financial. The Committee is the Senate Finance Committee, not the Senate Human Resource Committee.

From last night's Senate Committee on Transport & Communications. Advance to the 32:55 mark.


http://hocca.wmod.llnwd.net/a4502/e2/20 ... 1_1004.wmv

[Morry Bund]

Interesting: Captain Adamus:

"There is also a human rights challenge to the age 65 rule at Jazz."

"ALPA is in favour of a mandatory retirement age that is freely bargained between the parties subject to those provisions by ICAO."

Mr. Tamme: Did ACPA get an invite to make submissions?

[Martin Tamme]

Mr. Tamme: Did ACPA get an invite to make submissions?

Yes.



Here are ACPA's submissions (advance to 5:30): http://hocca.wmod.llnwd.net/a4502/e2/20 ... 9_1004.wmv

[Morry Bund]

Mr. Tamme: Did ACPA get an invite to make submissions?

Yes.

Did also get invited to speak next Tuesday? Are we going to hear a repeat of his submission to the Parliamentary Committee, telling the Senators that senior Air Canada pilots are overpaid?

[777longhaul]

Martin

What minutes section of acpa's speaches, are directly related to the age 60 issue? I listened to a great deal of issues, but did not hear anything about the age 60 issue. Where excatly is it, in acpa's submission?
thanks

[Morry Bund]

What minutes section of acpa's speaches, are directly related to the age 60 issue?

You will have to wait until Tuesday morning to hear anything about that. That segment that he posted is for a hearing of a Committee that has a different function. Aviation. The issue related to mandatory retirement goes next week before the Senate Finance Committee, the Committee that is reviewing the Budget Bill.

Correction to my earlier post:

My sources in Ottawa now tell me that as of this morning, no witnesses are currently scheduled to appear before the Senate Committee to address the issue of the repeal of mandatory retirement in the Bill, and that the Committee is not currently planning to invite any witnesses to address that topic.

Apparently, their focus is on getting this Bill back into the regular session of the Senate for Third Reading, prior to the end of the current session on December 16th. The government wants this Bill passed before the Christmas recess.

[Raymond Hall]

Just released:

SENATE COMMITTEES AND PRIVATE LEGISLATION DIRECTORATE
NATIONAL FINANCE
NOTICE OF MEETING
Tuesday, December 6, 2011
9:30 a.m.
Room 9, Victoria Building
140 Wellington Street
http://senate-senat.ca/webcast-e.asp
AGENDA
Bill C-13, An Act to implement certain provisions of the 2011 budget as updated on June 6, 2011 and other measures.

WITNESSES
9:30 a.m. - 10:30 a.m.
Canadian Association of Retired Persons (CARP)
...Susan Eng, Vice President, Advocacy
Canadian Association of Fire Chiefs
...Witness to be confirmed

10:30 a.m. - 11:30 a.m.
Conference for Advanced Life Underwriting (CALU)
...Susan St.Amand, Chair
Conference for Advanced Life Underwirting (CALU)
...Jillian Welch, Lawyer and Tax Consultant
Calvert Home Mortgage Investment Corporation
...Dale Koeller, Vice President
Investment Industry Association of Canada (IIAC)
...Barbara Amsden, Director

[Johnny Mapleleaf]

Interesting update from the Coalition today. They sent out a just-released CIRB decision on the reconsideration of the original Vilven DFR complaint. Although the complaint was dismissed, there is nothing in the decision for ACPA to cheer about. In addition to repeating its previous extremely strong censure for ACPA's earlier behavior with the words "the Board in no way condoned the union's treatment of the applicants during the time in question and in fact considered it deserving of condemnation..." the decision sends a big black cloud out over the union's parade. The Board says that it is bound by the the Federal Court decision of February, 2011, finding that the termination of pilots in accordance with the collective agreement mandatory retirement clause was contrary to law.

So although this particular DFR complaint was actually dismissed because the complaint was filed with the Board (August, 2010) before the court decision was released (February, 2011), it would appear that any complaint filed about the same response of the union after the court decision of February was released could result in sanctions to ACPA.

As fate would have it, there is another CIRB DFR complaint under reconsideration by the Board that deals with exactly that issue, concerning three pilots whose employment was terminated in April, 2011. Their DFR complaint was filed in April and the reconsideration decision could be released within days. Better pack your umbrella.

A favourable CIRB decision for the complainants would certainly change things at ACPA. Up until now ACPA has apparently been taking the attitude that it can keep refusing to represent anyone who doesn't agree with mandatory retirement, with impunity.

The IAM and CAW have been saying just the opposite--that they have to abide by the Tribunal and the Court's decision. That interpretation has led the other unions to file grievances on behalf of their members with respect to the legality of the mandatory retirement policy, which in turn has resulted in two arbitration orders temporarily reinstating mechanics, baggage agents, ground workers, and sales agents and prohibiting Air Canada from terminating any others in those unions, based on age, until the Vilven / Kelly case is finished in the courts.

It ain't over until its over....

[DrBoeing]

Interesting update from the Coalition today. They sent out a just-released CIRB decision on the reconsideration of the original Vilven DFR complaint. Although the complaint was dismissed, there is nothing in the decision for ACPA to cheer about. In addition to repeating its previous extremely strong censure for ACPA's earlier behavior with the words "the Board in no way condoned the union's treatment of the applicants during the time in question and in fact considered it deserving of condemnation..." the decision sends a big black cloud out over the union's parade. The Board says that it is bound by the the Federal Court decision of February, 2011, finding that the termination of pilots in accordance with the collective agreement mandatory retirement clause was contrary to law.

So although this particular DFR complaint was actually dismissed because the complaint was filed with the Board (August, 2010) before the court decision was released (February, 2011), it would appear that any complaint filed about the same response of the union after the court decision of February was released could result in sanctions to ACPA.

As fate would have it, there is another CIRB DFR complaint under reconsideration by the Board that deals with exactly that issue, concerning three pilots whose employment was terminated in April, 2011. Their DFR complaint was filed in April and the reconsideration decision could be released within days. Better pack your umbrella.

A favourable CIRB decision for the complainants would certainly change things at ACPA. Up until now ACPA has apparently been taking the attitude that it can keep refusing to represent anyone who doesn't agree with mandatory retirement, with impunity.

The IAM and CAW have been saying just the opposite--that they have to abide by the Tribunal and the Court's decision. That interpretation has led the other unions to file grievances on behalf of their members with respect to the legality of the mandatory retirement policy, which in turn has resulted in two arbitration orders temporarily reinstating mechanics, baggage agents, ground workers, and sales agents and prohibiting Air Canada from terminating any others in those unions, based on age, until the Vilven / Kelly case is finished in the courts.

It ain't over until its over....

One of those maintenance individuals works with me here in YOW, and while I am no fan of the IAM, they brought this gentleman's case to arbitration demanding he be brought back to work, which arbitrator Teplitsky agreed to until such time as the Vilven Kelly situation has been resolved.

[Mechanic787]

This is a huge crack in the ice.

Does anyone have a link to the decision?