thwaites decision

[Johnny Mapleleaf]

And the beat goes on...

Both sides file applications for judicial review of the August 10th decision: http://www.flypast60.com

[Mechanic787]

How is that for an interesting twist on legal proceedings. Air Canada succeeded in having the Thwaites complaints dismissed, but now it has filed an application for judicial review seeking “an order in the nature of certiorari quashing the Decision of the Tribunal? It won the decision and it wants the order quashed?

What would it have done if it had lost the decision?

My legal friends tell me that this application is going nowhere. They say that it is very likely to get dismissed before it even gets to a hearing. Why? Because, according to those who should know, you can’t appeal reasons for a decision, you can only appeal the outcome of a decision. Air Canada won the decision so it can’t appeal it, even though it disagrees with the reasoning behind its win. One of the parties is likely to bring a motion to end the application before it gets through the courthouse door.

Senior counsel there. Guess that doesn’t stop them from making senior mistakes.

[FADEC]

Air Canada has been out to lunch on this from Day One. Keeping trained pilots working saves money and improves Pension Solvency.

Air Canada's "Witnesses" have been notable for their lack of knowledge and credibility. Not surprising that "Senior Counsel" has missed the point.

One wonders whose idea it was to fight this in the first place, and who wants to keep fighting. Where is the Board of Directors on this utter waste of money?

[duranium]

FADEC

All of what Air Canada is spending on this is tax deductable and only peanuts in the big bucket. Also, and more important, it is forcing the doomed ship ACPA to expend big ammo on this same fight AND it is not tax deductable and it is keeping ACPA very busy on multi fronts. So, history is bound to repeat itself, again ( they will lose again ). Reminds one of Bill Murray in Groundhog days.

Note of interest. Every time ACPA wins a decision, it is because that decision is flawed and on review by the courts, you guessed it, bye bye win, hello loss. Will they ever learn ? Dont think so.

[SilentMajority]

Don't look for changes in either ACPA or AC's position on this issue.....until a new pilot's Collective Agreement is in place.

This might be dead and buried by year end.

[Norwegianwood]

Especially with this happening in the EU......

Lufthansa pilots win ageism case at European court Lufthansa is the EU's biggest airline
Europe's top court has ruled that a ban by Lufthansa on pilots flying past the age of 60 is illegal, in a case brought by three flight captains.

The EU Court of Justice found mandatory retirement at 60 went against international and German laws that fix the pilot retirement age at 65.

Lufthansa's age limit is contained in its collective agreement.

But three pilots forced to retire challenged the rule, and the case was passed to Luxembourg.

Germany's federal labour court had asked whether the collective agreement was compatible with EU law.

A Lufthansa spokesman quoted by Spiegel magazine said the court ruling would not have an immediate effect, as German legislation would first have to be amended.

The collective agreement covers approximately 4,200 pilots in the EU's biggest airline.

'Beyond the necessary'

The court found that Lufthansa's age limit represented a "disproportionate requirement" in light of international and German legislation.

"Prohibiting airline pilots from working after the age of 60 constitutes discrimination on grounds of age," a court statement said.

"While the right to act as a pilot may be limited from that age, total prohibition goes beyond that which is necessary to ensure air traffic safety."

The court also noted that, under the legislation, airline pilots could only continue to fly if they were part of a crew and the other pilots were under 60.

The appeal against Lufthansa's age limit was made by captains Reinhard Prigge, Michael Fromm and Volker Lambach.

[Morry Bund]

This might be dead and buried by year end.

Not sure what "this" you are referring to. What might be dead and buried, mandatory retirement by reason of a new collective agreement, or ACPA's willingness to continue filing appeals?

[Morry Bund]

Another update just out. ACPA has apparently also filed an application to quash the Thwaites decision. It says that the Tribunal erred by not finding that age 60 is a bona fide occupational requirement.

What is the MEC basing its decision to do this on, the July V-K Tribunal decision that found that age 60 is a BFOR? Ho. Ho. Ho.

Does anyone across the road there have any idea where this is all going?

[vic777]

I guess Air Canada realizes how stupid and fraudulent they will be if they sign a collective agreement which defies the rulings and restricts Pilots to age Sixty. Will their council let them sign such an agreement which flies in the face of the earlier findings? How stupid is their council? Inquiring minds want to know. Don't expect an agreement any time soon, at least with an age restriction in it.

[Rockie]

ACPA has apparently also filed an application to quash the Thwaites decision. It says that the Tribunal erred by not finding that age 60 is a bona fide occupational requirement.

Continuing this charade that age 60 is a BFOR when the entire planet has moved beyond 60 is making us all look very, very stupid.

They might as well argue the world is flat.

[dhc2pilot]

The world is flat......go fall off it!

[vic777]

The world is flat......go fall off it!

When I flew the DHC2, I also thought the World was flat .....

[Rockie]

The world is flat......go fall off it!

At some point personal pride has to enter into this. Don't you find it embarrassing shouting out to the world that here at Air Canada we are incapable of doing something everybody else in this industry has already done? I do, because I thought we were smarter than that. We think we're the best around and we can't even get something as dead simple as this right.

When will this so-called union finally get it in their heads they have a duty to represent all of its members and protect them from discrimination?

[Jimmy_Hoffa]

The EU Court of Justice found mandatory retirement at 60 went against international and German laws that fix the pilot retirement age at 65.

Lufthansa's age limit is contained in its collective agreement.

But three pilots forced to retire challenged the rule, and the case was passed to Luxembourg.

Germany's federal labour court had asked whether the collective agreement was compatible with EU law.

A Lufthansa spokesman quoted by Spiegel magazine said the court ruling would not have an immediate effect, as German legislation would first have to be amended.

The collective agreement covers approximately 4,200 pilots in the EU's biggest airline.

'Beyond the necessary'

The court found that Lufthansa's age limit represented a "disproportionate requirement" in light of international and German legislation.

"Prohibiting airline pilots from working after the age of 60 constitutes discrimination on grounds of age," a court statement said.

"While the right to act as a pilot may be limited from that age, total prohibition goes beyond that which is necessary to ensure air traffic safety."

The court also noted that, under the legislation, airline pilots could only continue to fly if they were part of a crew and the other pilots were under 60.

The appeal against Lufthansa's age limit was made by captains Reinhard Prigge, Michael Fromm and Volker Lambach.

So...you are against mandatory retirement at age 60, but mandatory retirement at age 65 is ok???

[Rockie]

So...you are against mandatory retirement at age 60, but mandatory retirement at age 65 is ok???

I am "against" discrimination and "for" conducting ourselves according to the law.

Mandatory retirement based on age alone has been deemed discriminatory and therefore against the law despite the painful writhing around the issue ACPA and Air Canada are doing to delay the inevitable day they are forced to comply. Pretending it isn't discriminatory doesn't change the way society sees it, and society will prevail on this however much we wish to deny it. We are doing nothing but showcasing our ignorance and inability to adapt to today's world by desperately hanging on to this little circle of delusion we're in. Our union's conduct in this is immoral, unethical and illegal in the sense that they are supposed to protect the members from discrimination, not force it on them. ACPA's opinion, or the opinion of the membership on whether mandatory retirement is discriminatory or not is irrelevant. The law says it is and ACPA is required by law to protect us from it.

Having said that, there is a legal exemption for age based mandatory retirement provided in the labour code called BFOR. Air Canada and ACPA continue to argue a BFOR of age 60 when the entire world has gone to 65. Does that sound smart to you? Does it sound like those two organizations have a grasp on reality and are proactively trying to work within it?

[Morry Bund]

Here is part of the Tribunal's reasoning on which ACPA is basing its application for judicial review:

[343] If the essence of what Air Canada pilots do is flying aircraft of varying sizes and types, transporting passengers to both domestic and international destinations, it is difficult to see how the age of the pilot bears any relationship to the performance of the job.

[344] It is very telling that Transport Canada, the federal regulatory agency responsible for licencing commercial pilots, does not impose any maximum age restriction. In fact, in its submission to ICAO on the question of raising the maximum age of PICs for international flights, Canada’s position was that there should not be any age restriction. Canada has no objections to pilots who are 60 years of age or older holding a medically valid licence from flying within Canadian airspace

Like, how can ACPA persuade the court that the Tribunal's decision that age 60 was not a BFOR when the Tribunal states the obvious, and quotes the licensing authority's position on the legal requirements? Couple that with the fact that both Air Canada and ACPA are saying that Air Canada cannot meet the requirements that every other airline in the world apparently have no problem satisfying! And the fact that ICAO has no restrictions whatsover related to mandatory retirement, or to pilots who are not acting in capacities other than as pilots-in-command!

Obviously, the reason that this appeal has been filed is not based on the legal merits of the arguments to be presented, given the absurdly ridiculous position of the union.

If there is anything certain about this, it is the fact that ACPA will be shoveling lots of its members' money into legal fees.

[Jimmy_Hoffa]

I am "against" discrimination and "for" conducting ourselves according to the law.

Not what I asked... how come one age is OK but not another? Is it not just as unfair to mandate retirement at 65 as it is 60?

[Rockie]

I answered what you asked.

I am "against" discrimination and "for" conducting ourselves according to the law.

Having said that, there is a legal exemption for age based mandatory retirement provided in the labour code called BFOR.

Forcing someone out of a job at any age simply because they've reached that age when they do not want to go and are still fully capable of doing it is discriminatory. I am against that for a whole host of reasons. There is a requirement though that the person must be employable in that job however much they are still capable of doing it. Flying as an airline pilot internationally is not possible over the age of 65 (that doesn't mean they can't fly domestically). Air Canada and ACPA are still trying to float the sunken boat that 60 is the age when the whole world knows it isn't. It's 65.

While I don't agree with it, flying professionally internationally over 65 is not possible and I merely recognize the reality of that. There is also a legal mechanism to protect employers from having to employ unemployable people due to age called the BFOR. I respect that law and recognize its legitimate purpose despite my personal feelings about mandatory retirement.

Is that clear enough?

Air Canada and ACPA are trying to use that provision in labour law for reasons that have nothing to do with bonofide occupational requirements and have been called on it. Yet they still persist.

[Raymond Hall]

Flying as an airline pilot internationally is not possible over the age of 65 (that doesn't mean they can't fly domestically). Air Canada and ACPA are still trying to float the sunken boat that 60 is the age when the whole world knows it isn't. It's 65. While I don't agree with it, flying professionally internationally over 65 is not possible and I merely recognize the reality of that.

Correct, in respect of pilots-in-command over age 65 in the airspace of countries that have not given an exemption to the ICAO restriction, such as Canada and several of the European Union countries. There are no restrictions at all that would apply to Canadian pilots who are not operating flights as pilots-in-command, such as First Officers and Relief Pilots.

In our legal proceedings the complainants could have attempted to persuade the Tribunal that flying domestically over age 65 as a pilot-in-command is permissible. Technically, that is correct, as Canada imposes no age restrictions whatsoever. The problem lies in the function of the job, however. The USA does not recognize the pilot licenses of pilots-in-command over age 65, so that means that our pilots would not be able to fly through the airspace of any of the States, including Alaska (en-route to Asia), through the northern States (YYZ-YVR-YHZ) and through the State of Maine to the maritimes, or to Europe. Also, its means that their Air Canada flights cannot be planned using USA alternates, such as SEA, PDX, IAG, BUF, IAD, or BOS.

Our complainants simply did not pursue the argument that they should remain employed as PICs after age 65.

[Rockie]

There are no restrictions at all that would apply to Canadian pilots who are not operating flights as pilots-in-command, such as First Officers and Relief Pilots.

My mistake for not including that. There are indeed no age restrictions whatsoever on non-PIC's which blows another gargantuan hole in the age 60 case Air Canada and ACPA are pushing.

[DrBoeing]

The world is flat......go fall off it!

Good grief!!!!

[Mig29]

Lufthansa pilots win ageism case at European court Lufthansa is the EU's biggest airline
Europe's top court has ruled that a ban by Lufthansa on pilots flying past the age of 60 is illegal, in a case brought by three flight captains.

Huge support as always! Never the less, the "ME" generation is going to eventually get what they want, on the expense of the majority of pilots who abide by the same contract for years.

So as I said before, let there be an LOU between two 'warring' parties to make 1 for 1 deal. One "overdue" pilot for one "early" retirement pilot with no reduction in pension benefits.

Deal?

[Rockie]

So as I said before, let there be an LOU between two 'warring' parties to make 1 for 1 deal. One "overdue" pilot for one "early" retirement pilot with no reduction in pension benefits.

What ACPA and Air Canada pilots negotiate to accommodate this is up to them provided it isn't discriminatory, which so far they haven't shown any ability to recognize. But first you have to get them to stop wasting massive resources fighting it before any progress will be made.

Get right on that will you.

[Norwegianwood]

Deal?

Hey Mig, those cockpit glare glasses must be all "Fogged Up" as you still don't see it is not "deal" it's DISCRIMINATION plain and simple................

Over (soon) and out.......................

[Morry Bund]

Got news from the crew today that the Federal Court of Appeal has set November 22nd as the day for the hearing of the constitutionality of the mandatory retirement exemption case that both ACPA and Air Canada lost at the Federal Court.

Most pilots won't realize the signficance of that date (most weren't even born on November 22, 1963), but that was a day that changed the world. What an appropriate date for another event to change the world.

Or maybe we'll just keep on throwing cash at the lawyers on the journey to the next and final stop, the Supreme Court of Canada.