CHRT Remedy Ruling?

[Morry Bund]

Maybe somebody has some insight as to what their game plan is?

Interesting take on the situation. In my conversations various union reps recently, I may be incorrect, but I am beginning to perceive a subtle shift in the rhetoric. Almost like an acceptance of the impending changes, and a toning down of the visceral comments about those who are advocating change. I could be wrong. But maybe somebody has been counseling them recently that they ought to be prepared for moving forward. This is consistent with the reported comments of the YYZ Chair, at his base meeting last week (I wasn't there, so I cannot comment) about rethinking our position, but I get this sense that something's up, that the entrenched position is being questioned seriously for the first time, and that changes are about to happen.

Nothing to go on but a second sense, but that's what I seem to be hearing.

[duranium]

Maybe somebody has some insight as to what their game plan is?

Interesting take on the situation. In my conversations various union reps recently, I may be incorrect, but I am beginning to perceive a subtle shift in the rhetoric. Almost like an acceptance of the impending changes, and a toning down of the visceral comments about those who are advocating change. I could be wrong. But maybe somebody has been counseling them recently that they ought to be prepared for moving forward. This is consistent with the reported comments of the YYZ Chair, at his base meeting last week (I wasn't there, so I cannot comment) about rethinking our position, but I get this sense that something's up, that the entrenched position is being questioned seriously for the first time, and that changes are about to happen.

Nothing to go on but a second sense, but that's what I seem to be hearing.

Do you mean your union is considering using the bailers just as the water is about to inexorably wash over the gunnels of your mother ship ? What do you think will happen first ? They start bailing as if their life depended on it or they get broadsided with a massive salvo from the CHRT, the Federal Appeals Court, the Canadian Parliament and the CIRB.

[Rockie]

In my conversations various union reps recently, I may be incorrect, but I am beginning to perceive a subtle shift in the rhetoric. Almost like an acceptance of the impending changes, and a toning down of the visceral comments about those who are advocating change. I could be wrong.

I hope you're right. But simply toning down the rhetoric and accepting the situation is not enough.

The people who advocate change, and those who simply recognized how this was going to play out and did not support the union because of it have been vilified. There is a massive rift in the pilot group as a direct result of the union's negligence toward their legal obligation as our representative. There are likely huge liabilities that we will have to pay for. All this because the union pursued a hopeless, divisive and costly agenda serving their preference, rather than one that served the best interests of the members based on due diligence.

What could ACPA possibly do to repair the damage they have caused?

[vic777]

What could ACPA possibly do to repair the damage they have caused?

Simple, get the windfall gains for the Pilots.

[Johnny Mapleleaf]

What could ACPA possibly do to repair the damage they have caused?

Simple, get the windfall gains for the Pilots.

Don't hold your breath.

Here is what arbitrator Douglas Stanley had to say about ACPA's position, in his October, 2006 wage reopener award:

CONCLUSIONS on WAGES/PENSIONS
These parties are at odds over the real consequences of the CCAA process and the nature of commitments coming out of CCAA. That is the backdrop to this arbitration that informs and colours the parties’ attitudes and expectations. The history makes this a different, and in many respects a much more difficult, negotiation and arbitration for ACPA. They are trying to recover something they lost. They do not necessarily accept that they were going to lose it through the bankruptcy of the company if they had not lost it through the process of making concessions. They do not accept that they are not going to get back what they lost or the permanency of the Company’s new “cost structure”. [Emphasis added]

He went on later in his decision, to say:

ACPA has tried to make a case for its “above market” proposals on the basis of the unwarranted concessions they were forced to take in the past and on the present comparisons with WestJet. Coupled with both these, is the argument that the Company has the ability to pay as evidenced by their cash position and prospects.

He then concluded by comparing "normative wage increases" for unions in the industry with normative inflation rates and costs of living, and ultimately concluded that no pension indexation should be allowed, and that wages should be determined, in his words, as follows:

Taking all the above factors into consideration I award the following wage rate increases:
July 1, 2006 – 2%
July 1, 2007 – 1.75%
July 1, 2008 – 1.75%

[accumulous]

He then concluded by comparing "normative wage increases" for unions in the industry with normative inflation rates and costs of living, and ultimately concluded that no pension indexation should be allowed,

What is the current status of pension indexing for the Flight Attendants, Machinists, and other AC employee groups???

[vic777]

Here is what arbitrator Douglas Stanley had to say about ACPA's position, in his October, 2006 wage reopener award:

Obviously, we never let that arbitrator near our negotiations. And just as obviously, we have to grow a backbone.

[Johnny Mapleleaf]

Obviously, we never let that arbitrator near our negotiations. And just as obviously, we have to grow a backbone.

In the traditional collective bargaining process, arbitrators are not involved, of course. Unions and employers engage in bargaining to the point where they reach an impasse, and then either the union serves strike notice, or the employer serves lockout notice. We haven’t experienced the traditional collective bargaining process since our strike of 1998. In the 2000 negotiation, the federal Minister of Labour intervened to tell both Air Canada and the ACPA that if both did not take her offer of a mediator, that she would take actions that neither would find attractive.

Neither party called her "bluff" because neither thought she was bluffing. Needless to say, it was that report of that mediator that wound up being applied as the basis for the contractual changes that were ultimately implemented.

One of the main problems with arbitrator Stanley's report was not that he did not accept ACPA's position, but that he refused to deviate significantly from the decisions of other arbitrators who had already rendered their similar decisions for Air Canada and the other unions dealing with the 2006 wage reopener. Also, he evidently had a tough time buying any of ACPA's arguments, especially about the need to rescind the narrow-body pay discounts.

Consider these words, for example:

ACPA presented two demands to which they assign a very high priority. The A320 15% adjustment and moving the Embraer pilots to the formula pay system from their present flat pay. These represent departures from a normative pay increase. I find that both these demands go to the core of adjustments made in the CCAA process. Those adjustments were viewed as necessary to achieve the labour cost reductions required to get Air Canada back to being a viable going concern. The evidence does not support a conclusion that either the A320 pilots or the Embraer pilots are compensated at a rate below that being paid to similar pilots at Air Canada’s competitors. I cannot find a justification for making an exception for these two groups of pilots in this Award.

There is another significant theme that plays repeatedly throughout his decision that is relevant to this thread (CHRT Remedy). Namely, ACPA's refusal to face reality. As he stated above, ACPA not only did not seriously believe that Air Canada was facing bankruptcy, but ACPA did not believe that it could not get back what it lost in CCAA negotiations. The arbitrator saw Air Canada's new cost structure as being permanent, not temporary. There is no "going back." On the last page of his decision he states, "the pilots continue to view themselves as being hard done by..." which may account in part for our dogged refusal to face reality.

Windfall gains are rarely in the cards, either through arbitration or through negotiation. The last windfall gain for pilots in the airline industry that I am aware of occurred over 40 years ago when the pilot unions persuaded their employers to maintain the formula pay system, based on weight and speed, with the arrival of the heavy jet. Although it created the anomaly of B747 Second Officers (unlicensed pilots) earning more than DC-9 or B737 Captains, it also put the B747 Captain in the top 1% of income earners in the country. That was a windfall never to be replicated in any other form, and certainly not through negotiation or by going on strike.

We Air Canada pilots are not an island unto ourselves, but rather only a bit player in the larger scheme of things, and our refusal to get our minds around this fact is seriously problematic both in terms of our expectations and in terms of our actions.

[vic777]

We Air Canada pilots are not an island unto ourselves, but rather only a bit player in the larger scheme of things, and our refusal to get our minds around this fact is seriously problematic both in terms of our expectations and in terms of our actions.

So you're saying that not accepting the fact that we are "bit players", is costing us money and the way to more money is to accept the fact that we are bit players? I say down tools and let's see who the bit players are.

[Johnny Mapleleaf]

So you're saying that not accepting the fact that we are "bit players", is costing us money and the way to more money is to accept the fact that we are bit players? I say down tools and let's see who the bit players are.

In order to keep this thread on topic, we should probably move the negotiations discussion over to the active Negots thread.

As far as the CHRT remedy issue is concerned, I am simply suggesting that we have a natural tendency to be egocentric, sometimes to the point of being myopic. That is borne out in the writings of how others see us. Arbitrator Stanley was but one in a line of outsiders who look at us much differently than we look at ourselves, and we ought not be too quick to dismiss their views, especially where their views are based on independent criteria and experience.

[vic777]

I am simply suggesting that we have a natural tendency to be egocentric, sometimes to the point of being myopic. That is borne out in the writings of how others see us. Arbitrator Stanley was but one in a line of outsiders who look at us much differently than we look at ourselves, and we ought not be too quick to dismiss their views, especially where their views are based on independent criteria and experience.

These campaigns we continually launch to inform the public to our plight are misguided and idiotic. What we need and have always needed is professional negotiators, and then follow their advice. The last two contracts prove that our Pilot negotiators are not up to the task. To allow an Arbitrator who, "looks at us much differently than we look at ourselves", anywhere near our negotiations was an act of colossal naivety and stupidity, a professional negotiator would never have let the negotiations get so totally out of control.

[rudder]

To allow an Arbitrator who, "looks at us much differently than we look at ourselves", anywhere near our negotiations was an act of colossal naivety and stupidity, a professional negotiator would never have let the negotiations get so totally out of control.

Really? Then what exactly is Bill Petrie's job at ACPA?

[Raymond Hall]

I have started a new thread on negotiations, entitled, "We Need Professional Negotiators?" in order to keep the discussion on this thread focused on the CHRT remedy issue only.

[MackTheKnife]

moved to "do we need professional negotiator thread"

mtk

[Norwegianwood]

I have started a new thread on negotiations, entitled, "We Need Professional Negotiators?" in order to keep the discussion on this thread focused on the CHRT remedy issue only.

Geting back to the CHRT, is there any decision in sight for the second hearing by Chairman Sinclair, now more than one year since it closed? This seems excessive even for government! Is he in fact waiting for his decision to be made for him by parliment perhaps.

[Raymond Hall]

Geting back to the CHRT, is there any decision in sight for the second hearing by Chairman Sinclair, now more than one year since it closed? This seems excessive even for government! Is he in fact waiting for his decision to be made for him by parliment perhaps.

One of the defining characteristic of our constitutional system is the separation of powers into three levels, Executive, Legislative and Judicial. Each maintains and jealously guards its independence. One of the upshots of the independence of the judiciary, including quasi-judicial tribunals such as the CHRT, is the independence of the decision-maker. Taken to its absolute, even other judges or other members of the Tribunal should not interfere with or even be able to "peek into" the decisions that fall within the exclusive jurisdiction of the decision-maker who is seized of the matter before him or her.

What this means is that no-one can "call up the judge." No-one, not even the Tribunal itself, can interfere with the decision being considered. The net result for the parties, including the complainants, is that we have no knowledge whatsoever of the status of the decision until it is actually rendered, or of the reason for any perceived delay.

A corollary is that there is no point whatsoever in speculating as to the outcome, or as to the potential reason for any delay in the rendering of the decision.

Having said that, the courts and the tribunals will often give either 24 hours or 48 hours advance notice to the parties that the decision will be released on a certain date. That is all that can be said. We simply must be patient, otherwise.

[accumulous]

Time lines are all over the map:

If you read one of the more recent age discrimination cases involving 3 professors in PEI you can see that the time from hearing the Complaint to the Order of Remedy was something like 8 months. Look at the most recent Nilsson et al case of age discrimination.

http://www.gov.pe.ca/humanrights/index. ... 893&lang=E

Other cases vary widely in their processing times.

In the Federal jurisdiction the CHRT openly states in its annual report for 2009 that one of its main goals is striving to improve the timeliness of it adjudication process. It does recognize that speed is a major area for improvement.

http://chrt-tcdp.gc.ca/NS/reports-rappo ... ra-eng.asp

If you leaf through the CHRT annual reports and other public documents, you can see that while stated goals for completion are relatively short, the shorter time frame objectives are rarely met except in a very small percentage of cases.

While it may not have any relevance, there is the sheer magnitude of our present ruling with 70 Complainants and way more than that waiting just off stage. On the Richter scale, this is a real biggie with seemingly every major Federal agency having been on the case, including law enforcement. Are those factors in the deliberation??? Nobody knows.

[Lost in Saigon]

Just heard, the Federal Court decision is on the way today.

[Understated]

From Page 8 of this thread:

The uniquely steep grade of the deferred compensation system, and the methods suggested by the Tribunal to preserve it, will make this an interesting read. For instance I don't see how it is possible to put individuals back to the position they would have been, had they not been terminated, without the Tribunal contradicting its own rational for not applying 15(1)c in this specific case.

As for compensation. Again, the uniquely steep grade of the deferred compensation system put a lot of money in these individuals pockets that they would otherwise not have had. If the system is to be deemed "illegal" now? How would one expect to gain from an illegal practice and then gain again by its termination?

Doesn't appear to me that the Court took your deferred compensation system into consideration whatsoever. You and I spent a lot of time speculating about the underlying direction of the events, based on your projection that the Court would not abandon this element. Any comments?