Jaydee Posted August 28, 2009 Share Posted August 28, 2009 http://www.carp.ca/advocacy/adv-article-di...documentID=4060 Mandatory retirement finally eliminated by courts – CARP calls on federal government to remove offending provision in Canadian Human Rights Code TORONTO, ON: The courts have finally done what the federal government has refused to do – eliminate mandatory retirement in respect to federally regulated industries and CARP calls on the government to remove section 15[1][c] of the Canadian Human Rights Act which now would purport to permit age discrimination contrary to law. The Canadian Human Rights Tribunal today released its decision [attached] in the George Vilven and Robert Kelly case which has the effect of overruling the mandatory retirement provisions in the collective agreement applying to Air Canada pilots and by extension any other federally regulated workplace. Although the Tribunal does not have the legal authority to strike down the law, its determination that the law should not apply is a monumental step in Canadian jurisprudence that will affect all federally regulated employees, including those in the transportation industry, the banking industry and the telecommunications industry. Age discrimination through mandatory retirement provisions was permitted by section 15[1][c] of the Canadian Human Rights Act and Mr. Vilven and other pilots challenged the section on the basis that it violated section 15[1] of the Canadian Charter of Rights and Freedoms. The Federal Court of Canada, in its decision dated April 9, 2009, found that the Charter was violated and referred the case back to the Canadian Human Rights Tribunal to decide whether such a violation was “demonstrably justified as a reasonable limit in a free and democratic society within the meaning of the s. 1 of the Charter”. The case involves complaints by George Vilven and Robert Kelly who were forced to retire from their positions as pilots with Air Canada when they turned 60 years of age. Their forced retirement was in accordance with the mandatory retirement provisions of the collective agreement in force between their union, Air Canada Pilots’ Association (ACPA) and Air Canada. The Tribunal decision released today noted the “sea change in the public attitude toward mandatory retirement [para 21]” and that “mandatory retirement is nonetheless, an affront to the right to equality [para 39]” and found that the infringement of equality rights through mandatory retirement could no longer be justified. [At para. 50], the Tribunal concludes: “Based on the above analysis, we have concluded that it can no longer be said that the goal of leaving mandatory retirement to be negotiated in the workplace is sufficiently pressing and substantial to warrant the infringement of equality rights.” [At para 70] “In the Tribunal’s view, the negative effects of the infringement of depriving individuals of the protection of the Act outweigh the positive benefits associated with s. 15(1)©. As a final observation, perhaps one of the most disturbing aspects of this provision was the one first noted by the Court in Vilven: it allows employers to discriminate against their employees on the basis of age so long as that discrimination is pervasive in the industry.” “This is welcome news for all Canadians that one more element of age discrimination has been eliminated but especially important for those people who must stay in the labour force for economic reasons or simply for the dignity of work,” said Susan Eng, Vice President, Advocacy of CARP. ‘CARP has called on the federal government – of all stripes – over the years – to take a stand against age discrimination by removing the offending provision in its own Human Rights Act. What the federal government has failed to do, the courts have now done for them. The least the government can do now is follow the courts and change the law,” added Eng CARP Advocacy has pursued the issue of mandatory retirement over the years and in coalition with many other associations, has been successful in eliminating mandatory retirement at the provincial level. There are a few exemptions for pension plans that require further advocacy but the legislative landscape has now completely changed. Until this decision, age discrimination continued to be permitted in the federally regulated industries like the airlines, broadcasting, mining, railways and postal services. CARP has called on the Prime Minister to show leadership on more than one occasion including most recently in November 2008 [letter attached]: “The Vilven and Kelly case provides the right backdrop for government leadership. Link to comment Share on other sites More sharing options...
anonymous Posted August 28, 2009 Share Posted August 28, 2009 Fine...rewrite the ACPA CA, specifically Article 25 and put them at the bottom of the seniority list at age 60 and see how many take up the offer...and if 60 is discriminatory then so is 65...and if Canada mandates no retirement age wait to see the mess that unfolds when the YYZ-YHZ flight takes 20 minutes longer when the pilots are > 65 years old....and the US will not allow them to fly through US airspace.....or when the company has to have two sets of reserve pilots, list A under 65 and list B over 65... What a bunch of selfish @sses....they reached the top of the pile because of the mandatory retirement age and then when they get to the top, it has become discriminatory....one of the complainants in this case stated at one time something to the effect that if they returned to work they could now hold a 767 captain position in XXX....the other person in the conversation pointed out to them that they only reason they would be a 767 Captain was the the several hundred retirements that had occurred between their retirement and when this statement was made...no humility or thanks for the great career, just take take take, me first me first me first.... Link to comment Share on other sites More sharing options...
Jaydee Posted August 28, 2009 Author Share Posted August 28, 2009 Are you really that clueless? or just upset? Almost every occupation in the entire world is moving towards the elimination of mandatory retirement and all you see is one tree blocking your view of the forest. Link to comment Share on other sites More sharing options...
Seeker Posted August 28, 2009 Share Posted August 28, 2009 or just upset? Well, he may be upset but he's still right. These guys want to have their cake and eat it too, want to benefit from all the retirements that came before them and spend an extra 5 years at the top of the list although I would expect that this will instantly make the pilot's pension plan grossly overfunded. Link to comment Share on other sites More sharing options...
boestar Posted August 28, 2009 Share Posted August 28, 2009 dont worry about just pilots. This will eliminate the need to replace people at the current attrition rate. That means less jobs for the next generation. This can have very profound effects on the economy at large. Link to comment Share on other sites More sharing options...
CAT3DUAL Posted August 28, 2009 Share Posted August 28, 2009 Well, he may be upset but he's still right. These guys want to have their cake and eat it too, want to benefit from all the retirements that came before them and spend an although I would expect that this will instantly make the pilot's pension plan grossly overfunded. "extra 5 years at the top of the list" The way I read it, it's open ended. Go on condition, or when your health or abilities don't hold up anymore. Wouldn't want to be in the bottom third of the senority list right now, not looking good long term. Link to comment Share on other sites More sharing options...
BoomerPete Posted August 28, 2009 Share Posted August 28, 2009 I think some of you are missing the point. You may not agree with their motivations but both the Federal Court and the Canadian Human Rights Commission agreed with the substance of their complaint. Mandatory retirement provisions of employment contracts are an infringement on an individuals right's when the individual is still otherwise capable of doing the job. While accepting that those who are currently senior are the most likely beneficiaries of the ruling, and those relatively junior the most likely losers, another thought to consider might be that none have ever individually had any real choice in the matter. The terms were, I suspect, set well before even the most senior pilot currently employed joined the company, and as the dialogue here demonstrates, there has been very substantial opposition to any opening of the matter for review or revision. So in practice, if in the past employees affected by such agreements have never had a real opportunity to exercise choice in a matter that the Courts and Human Rights Commission consider an individual right, can they be blamed for successfully asserting that they do possess that right? Pete Link to comment Share on other sites More sharing options...
Seeker Posted August 28, 2009 Share Posted August 28, 2009 So in practice, if in the past employees affected by such agreements have never had a real opportunity to exercise choice in a matter that the Courts and Human Rights Commission consider an individual right, can they be blamed for successfully asserting that they do possess that right? The issue for me (one of them anyway) is that these individuals certainly benefited from the agreements in force for their entire career plus they accepted the offer of employment knowing full well that they would be retiring at 60. Doesn't matter to me what the courts have to say about individual rights - it's more about individual integrity. Link to comment Share on other sites More sharing options...
Canus Chinookus Posted August 28, 2009 Share Posted August 28, 2009 While I agree with the ruling it is blatantly obvious this is just another 'all about me'-ism effect of the baby boomers. I feel for the older Gen Ex'ers, and I'm glad I'm still in my 30's to not be immediately affected by the decision. You Gen Y'ers should give your dads a big hug and thank them for this, because you're probably going to get the most out of it.(next to the Boomers that is.) Link to comment Share on other sites More sharing options...
Seeker Posted August 29, 2009 Share Posted August 29, 2009 You Gen Y'ers should give your dads a big hug and thank them for this, because you're probably going to get the most out of it.(next to the Boomers that is.) Having to spend more of your life working? No thanks. The age 60 retirement was a real bonus about working at Air Canada. Now we all get to spend another 5 (or maybe more) years at work for less of a retirement benefit - way to go boys. Link to comment Share on other sites More sharing options...
conehead Posted August 29, 2009 Share Posted August 29, 2009 Some people will need to work past age 65 in a few years, when the Pension Plans are liquidated... Link to comment Share on other sites More sharing options...
conehead Posted August 29, 2009 Share Posted August 29, 2009 Air Canada Pilots Respond to Tribunal Decision on Age of Retirement Written by Air Canada Pilots Association Friday, 28 August 2009 The Air Canada Pilots Association (ACPA) received a decision today from the Canadian Human Rights Tribunal which would have the effect of denying Air Canada's pilots the right to negotiate a fixed age of retirement with their employer. "We are disappointed with the Canadian Human Rights Tribunal's decision to deny Air Canada's pilots the right to negotiate a fixed age of retirement", said ACPA President Captain Andy Wilson. "The Association has a duty to represent the wishes of the majority of the pilots and we will exercise the legal avenues available to us to ensure that their interests are protected. We are reviewing the details of the decision with our legal representatives to determine the long-term impact on our members and their collective agreement and our options for responding. We will have a more comprehensive statement upon the completion of our study", said Captain Wilson. The retirement age provided for in ACPA's collective agreement has been in place since the 1950s. Air Canada pilots recently voted by a 3 to 1 margin to uphold the current retirement age of 60. Air Canada Pilots Association (ACPA) is the largest professional pilot group in Canada, representing the more than 3,000 pilots who operate Air Canada's mainline fleet. Link to comment Share on other sites More sharing options...
Guest rattler Posted August 29, 2009 Share Posted August 29, 2009 It says the vote was 3 to 1, was that based on membership or simply on who bothered to vote, in other words what was the turn out? Link to comment Share on other sites More sharing options...
Hadji Ramjet Posted August 29, 2009 Share Posted August 29, 2009 The courts have finally done... Which Court? The CHRT is NOT a Court, and as the press release stated cannot overturn the law. Link to comment Share on other sites More sharing options...
rudder Posted August 29, 2009 Share Posted August 29, 2009 AC and ACPA had a chance to do the right thing and that was to deal with the matter in a forthright and realistic manner at the bargaining table. The world has changed in this regard for commercial airline pilots, yet these two parties decided that the 'ostrich' strategy was the way to go. Now a third party will be in a position to dictate perhaps unpalatable terms. Yet another stellar strategic victory. And if there is any suggestion about 'punishing' the post age-60 pilots that decide to stay - that will result in a DFR complaint to the CIRB. The reality is that pilots will continue to exercise their right to retire at age 55-60 just as they have always done. Now there will simply be the option to stay longer, assuming they can maintain their medical. Even the Americans got over this change and they are in a rights environment that is significantly less enlightened than Canada. Link to comment Share on other sites More sharing options...
better4me Posted August 29, 2009 Share Posted August 29, 2009 moving mandatory retirement from 60 65 will affect ythe past service contribution calculation and thus improve the 2.9billion deficit, the actuaries can now claim 60 as early retirement instead of 55 and normal retirement just went from 60 to 65. The CHRT complaints just became AC accountant's best friend. Link to comment Share on other sites More sharing options...
BoomerPete Posted August 29, 2009 Share Posted August 29, 2009 Which Court? The CHRT is NOT a Court, and as the press release stated cannot overturn the law. The Federal Court of Canada, in its decision dated April 9, 2009, found that the Charter was violated and referred the case back to the Canadian Human Rights Tribunal to decide whether such a violation was “demonstrably justified as a reasonable limit in a free and democratic society within the meaning of the s. 1 of the Charter”. That Court. Link to comment Share on other sites More sharing options...
Moon The Loon Posted August 29, 2009 Share Posted August 29, 2009 The Federal Court of Canada cannot overturn a law either. A law may be changed as a result of its ruling or that of any other court in the land, but only a Supreme Court of Canada ruling can result in a law being struck down. This is a result of the Constitution Act of 1982 and not a popular side-effect as regarded most Supreme Court justices - effectively, Parliament has surrendered its right of supremacy and is now subject to The Court. On the other hand, given the weak standing of Canada's House of Sober Second Thought, maybe Trudeau embedded this legal oversight as a relevant addition to constitutional law, as Senate reform was not popular in the 1980's. Link to comment Share on other sites More sharing options...
deicer Posted August 29, 2009 Share Posted August 29, 2009 As continually pointed out by Kip, Don, and all the others who are retired on this forum... Get out and enjoy life while you can. (That is if you have a life ) Those who stay in the longest, die the soonest..... Iceman Link to comment Share on other sites More sharing options...
UpperDeck Posted August 29, 2009 Share Posted August 29, 2009 The Federal Court of Canada cannot overturn a law either. A law may be changed as a result of its ruling or that of any other court in the land, but only a Supreme Court of Canada ruling can result in a law being struck down. This is a result of the Constitution Act of 1982 and not a popular side-effect as regarded most Supreme Court justices - effectively, Parliament has surrendered its right of supremacy and is now subject to The Court. On the other hand, given the weak standing of Canada's House of Sober Second Thought, maybe Trudeau embedded this legal oversight as a relevant addition to constitutional law, as Senate reform was not popular in the 1980's. There isn't a lot of room left for dissent given the unequivocal nature of your statement. You're wrong...but at least very positive. Link to comment Share on other sites More sharing options...
boestar Posted August 29, 2009 Share Posted August 29, 2009 I feel for the guy that has to fly a TransAtlantic flight behind a 777 with its left turn signal on for 3500 miles. Link to comment Share on other sites More sharing options...
AIP Posted August 29, 2009 Share Posted August 29, 2009 I feel for the guy that has to fly a TransAtlantic flight behind a 777 with its left turn signal on for 3500 miles. Funny yet so true. There are many out there that should not be flying even at 60. The travelling public can take comfort in the fact that there are others around to make it all go well. I guess babysitting will become the norm Link to comment Share on other sites More sharing options...
dagger Posted August 29, 2009 Share Posted August 29, 2009 Funny yet so true. There are many out there that should not be flying even at 60. The travelling public can take comfort in the fact that there are others around to make it all go well. I guess babysitting will become the norm The question is whether the F/O will override protocol and culture if he senses that the old Geezer is freezing up. Link to comment Share on other sites More sharing options...
Moon The Loon Posted August 29, 2009 Share Posted August 29, 2009 There isn't a lot of room left for dissent given the unequivocal nature of your statement. You're wrong...but at least very positive. Perhaps, but I was referring to federal legislation and for the most part, governments in power tend to appeal judgments against them or their predecessors to the highest court in the land rather than accede to a lower court. Link to comment Share on other sites More sharing options...
rudder Posted August 29, 2009 Share Posted August 29, 2009 Just read the full decision. AC/ACPA got killed on all points. Tribunal reserving judgement on remedy subject to further submissions. Interesting that Jazz is mentioned several times but neither Jazz nor ALPA were parties to the proceeding. Looks like a new issue for all Canadian carriers will be post age 65 pilots. http://www1.carp.ca/PDF/20090828%20Tribuna...ilven-Kelly.pdf Link to comment Share on other sites More sharing options...
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