Mandatory Retirement Eliminated

[BoomerPete]

Thanks rozar - will read and comment. I see that the first time around, the CHRT rejected the complaint on aviation's grounds - that retirement at 60 was "the norm" and did not offend the Charter. It is thus the Federal Court which held sway here.

In the following, I am interpreting commentary without having read the ruling yet. I am also cognizant of the very strong feelings on both sides of this matter. My own position has always been clear from the time Ross Stevenson first tried this in the early 70's.

It is a curiosity to contemplate the notion of the "right to work longer". What a strange society we live in.

With regard to the economic argument, if I understand part of the argument here, it is "you can make up for 'late entry', 'the expense of raising children'  or the reality of 'low wages' by working longer".

In other words, the CHRT views economic benefit as a "right" to which the Charter speaks and that when that right is offended, the "remedy" is to work longer.

The following view won't be a surprise to anyone and is informed by well-known views on the power of private industry's power over social matters through neoliberal economics, but should nevertheless be considered in the light of the changes rendered by the ruling:

The CHRT has confused rights with personal finances. That would include bad planning, stock market losses, chronically-low wages, inability to save for retirement, loss of personal savings largely through investment in the stock market, and so on.

In doing so, the tribunal has put its critical stamp of approval on what has long been seen by the health community and social think tanks as a serious modern ill - working longer and harder just to make ends meet in one of the wealthiest nations on earth.

How does one sort all this out? How does one come to terms with such thinking without becoming completely cynical? One cannot make the judgement yet, but, one wonders, given the slight right turn the Supreme Court and the CIRB rulings has taken, has the CHRT also turned slightly right?

Hi Don,

This is a decision worth giving a close and (for some) objective read to.

The crux of the decision in my estimation can be found in the following paragraphs:

[141] Moreover, as LaForest J. noted in McKinney, forcibly retiring older workers in order to make way for younger workers is discriminatory since it assumes that the continued employment of some individuals is less important to those individuals, and of less value to society at large, than is the employment of other individuals, solely on the basis of age (McKinney, at p. 303).

[142] Although this statement was made in the context of the constitutional analysis of mandatory retirement, it is relevant in the present context. In Renaud, the Court indicated that the objections of employees to the accommodation of a fellow employee which are based on attitudes inconsistent with human rights are an irrelevant consideration.

[143] The objections of younger pilots to accommodating older pilots are based on the view that younger pilots will not be able to enjoy the benefits of seniority if the older pilots are not forced to retire. This objection has not been established on the evidence nor is it consistent with the above stated human rights principle in Renaud.

[144] In the circumstances of this case, insisting that the absolute preservation of a younger pilot’s seniority takes precedence over the continued employment of his or her older colleagues amounts to making a purely age-based—and therefore arbitrary—value judgment about the relative worth to society of the work performed by each age group. And about the relative importance of employment to each age group.

In it what stands out is that it isn't so much a matter of asserting a right to work or a right to an income, but that every individual has an equal entitlement to "continued employment" and that mandatory retirement has the effect of arbitrarily assuming that that entitlement is of less value to the individual and to society for an older person than it is for a younger person. That is a discrimination being made based solely on age, and as they go on to state "objections ... which are based on attitudes inconsistent with human rights are an irrelevant consideration."

For AC and ACPA the only really strong grounds for argument were on the matter of whether they would bear undue hardship in respecting the rights found to apply. The Commision was quite critical of the evidence provided by both respondent parties.

In AC's case they felt that the company did not provide adequate information to support the conclusions regarding undue hardship that it presented. In ACPA's case they rejected the basic notion that a delay in the career progression and salary increases of younger pilots would cause a substantial interference with their rights. Effectively, they said that there is no right to the expectation of promotion based on a timetable generated by the denial of a right to another party.

With respect to the objections of both respondents they noted that there had been no effort to attempt to find solutions that would accommodate the rights of the complainants while minimizing the undue hardship that AC or ACPA might experience, and they then cited an on point example of how the same problem had been resolved with another carrier.

Overall, the sense I took from the decision is that on the general grounds of rights, when put into the larger context of Canadian society and other more recent court decisions, this decision was inevitable. What wasn't was how the undue hardship provisions would be adjudged, and on that score I think ACPA and AC got smoked for simply saying it won't work based on the way they've operated in the past, without any attempt to demonstrate that they'd explored alternatives and proven that a reasonable accommodation could not be found.

Regards,

Pete

[DEFCON]

As is the norm in society, aren’t the young being told they’ll have to pay the price for their father’s failures? So, why isn’t this ruling seen as a reverse form of discrimination against those presently on the list?

Why do professional pilots whine so vociferously with respect to the age 60 issue, using the safety card to support arguments against older pilots while the ‘safety’ aspects of the world wide ‘Air Cadet’ programs have only ever raised the tiniest of whimpers?

Lawyers & physicians screw up all the time. Their mistakes are buried or jailed. Nonetheless, these professional are paid for failure and continue on with their respective careers.

When it comes to aviation, society really doesn’t seem to care much about anything more than the ‘price’ of the ticket. So and in consideration of the lawyers, physicians and air cadets mentioned above, why do we want pilots to meet a ‘two strikes & your out’ standard?

[Fido]

I guess that the Canadian Armed Forces will need to change also:

http://www.cmp-cpm.forces.gc.ca/pd/pi-ip/14-04-eng.asp

Compulsory Retirement Age (CRA)

This is the age beyond which a member of the CF may not serve, unless an extension to CRA is authorized. The age that is applicable to an officer or NCM of the Regular Force will be in accordance with the appropriate table to QR&O 15.17 (Officers) and QR&O 15.31 (NCMs). The age that is applicable to members of the Primary Reserve will be as authorized by the CDS.

Compulsory Retirement Age (CRA) 60

[DEFCON]

Rich

"Where's the loss?"

I think you have identified it when you acknowledge; "the ruling wrt the 60+ retirement age only affects those who planned to retire at 60?

Fido

I think the military operates within its own special set of 'rules'?

[conehead]

I think the military operates within its own special set of 'rules'?

In this case, I think they will still have to respect the individual members rights, which are the same as any other Canadian citizen. I believe they went through this same battle a few years ago, because they were forcing people to retire at a much earlier age. (52, maybe?)

[AIP]

Why ever would you hope that? The ACPA forum CAN serve a useful purpose.

It acts as a kind of virtual union hall where the members can discuss with (and inform) others (of) their ideas/viewpoints/feedback/etc. And they can do so in a place where they aren't "airing the dirty linen".

Or do you perhaps think being able to post on a totally public board like this one - while hiding behind a pseudonym - is a better idea...

Pearson

The ACPA forume has the same small percentage of people posting all the time.

Anyone who has any sort of "outside" view is shunned almost immediately. For this and other reasons, many don't feel comfortable posting there.

btw, does this mean you plan to come back ?? Or is retirement agreeing with you ??

I believe your name was on the list of plaintiffs.

[AIP]

Don, and of course others who wish to have a go.

Now it appears 60 is discriminatory, as will be 65, 70, 75 and 80.

At what point does safety and the travelling public enter into this ??

[Jumpy]

Saying that it's going to be 70, 75, 80 that is discriminatory is ignoring the fact that this was precipitated by a decision by ICAO to change retirement age to 65. Canada is a signatory member of this organization therefore is obligated to follow the rule change. Bringing "safety" into the argument is ignoring the real fact of this issue and that is "seniority" plain and simple. Your life is driven by seniority but it just means that you will be delaying your career progression while at the same time extending the length that you will be able to take advntage of your "seniority". At WestJet, we extended this last year with VERY little resistance due to the fact that our lives aren't driven by seniority. We also are able to fly past 65 in the right seat as per ICAO.....not that many of us would want to.

[rudder]

Don, and of course others who wish to have a go.

Now it appears 60 is discriminatory, as will be 65, 70, 75 and 80.

At what point does safety and the travelling public enter into this ??

Believe it or not there is a limiting factor. It gets harder to meet the medical standard as we age. These standards are objective not subjective (and so they should be). Like it or not, there is a culling of the medically qualified herd that seems to pick up momentum after age 55. That curve is not linear but rather exponential relative to age. The system already has some checks and balances and safety is not at risk.

[Guest rattler]

regarding limiting factors, one that might come into play is if the "Insurance Companies" place limitations in their coverage. For example some school districts in Alberta will not allow their school bus drivers to continue after age 70, this is not driven by any inability or safety concern but rather by a limitation in the district's liability insurance.

[rudder]

Saying that it's going to be 70, 75, 80 that is discriminatory is ignoring the fact that this was precipitated by a decision by ICAO to change retirement age to 65. Canada is a signatory member of this organization therefore is obligated to follow the rule change. Bringing "safety" into the argument is ignoring the real fact of this issue and that is "seniority" plain and simple. Your life is driven by seniority but it just means that you will be delaying your career progression while at the same time extending the length that you will be able to take advntage of your "seniority". At WestJet, we extended this last year with VERY little resistance due to the fact that our lives aren't driven by seniority. We also are able to fly past 65 in the right seat as per ICAO.....not that many of us would want to.

One fleet type - one pay scale. That is why this isssue did not hit the radar screen at WJ. Career progression is simply defined as an upgrade to Capt.

I would watch out at AC as there may be movement to do to the top 10% what United pilots did years ago - whack the minority widebody pay to redistribute to the narrowbody majority. However, it also affects widebody FO's since there is a link to Capt pay.

This was widely viewed as a mistake at United.

[Guest rozar s'macco]

Now I'm well known as just a simple person, but it seems to me that the ruling wrt the 60+ retirement age only affects those who planned to retire at 60. For example: a 30 year old FO who expected to achieve his/her command in 5 years will now have to wait 10 (assuming everyone does stay on until 65). Had they achieved command at age 35, they'd have 25 years in the seat until their retirement at age 60. With the retirement age changed to 65, they’d still have 25 years in the left seat. Only difference is they have to wait longer to get there, all the while collecting a decent wage. Where's the loss?

Hi Rich,

This is a circular argument no? Aren't we just pitting the relative worth of one's life as a 60-65 yr old against those same 5 years of another's life from age 30-35? or 40-45? Why is it that a 60 year old's life is worth more than my life, which is what this decision implies. How can one reasonably expect to take life "one day at a time" while living under a decision that has removed money, schedule, holidays from the present and placed them 25-years hence for collection at that time. It assumes I'll live to age 65, for one. If I don't, the "freedom" to work to age 65 is forfeited, and my present day career is impaired in the meantime.

Money is the sole reason and motivator for people to do work. There are other ancillary perquisites that employment provides- a sense of purpose, respect, "self worth" and so forth- but they are just that, ancillary. One (presumably) does not enter the workforce to be "respected". We work because one's labour is readily exchangeable into currency, which is then used to sustain life. One of the fundamental errors that decisions like this make is to acknowledge the supposition on the part of the complainants, that the primary purpose of work is to be respected and feel good about onesself. In any case, the "respect" and "self worth" arguments are a wash, because does not an narrowbody airbus FO (like me) derive a certain sense of same from the notion that I, too, will one day be granted the privilege of Captaining a widebody jet internationally? Sorry, I will just be delayed, not denied (my bad). My point is, we all derive a similar sense of purpose from working, and being a pilot is great in terms of party conversation and small talk at the yacht club...but it isn't our primary purpose, and one's value of such a notion cannot be quantified as being worth more than another's.

Anyhow, having established that MONEY is the sole reason that humans perform WORK and all else is secondary, the argument must be framed in this light. There is a time value of money, so delaying the payment of money reduces its worth. Financially speaking

[30]Deferred compensation is the practice of paying workers less than their productivity in earlier years and more than their productivity in later years.

delaying me during my "underpaid" years so that another can remain in the "overpaid" years (I use these terms directly in the context of the above quote, not in the general sense) causes undue harm! Particularly if I am unable to avail myself of the "freedom" to work 5 years longer when the time comes.

There is much work left to be done on this file, that is for certain. I thought Captain Duke's work went 75% of the way to proving that over about a 20% cohort on a widebody fleet, the 60+ pilot becomes unusable, practically speaking. In the upside-down CHRT process however, that is insufficient as the burden of proof is on the defendant, not the accuser (how wonderful it must be to be a plaintiff whose "rights" have been infringed!). Furthermore, I think the window is open for APCA to conclusively show, using our vacation data, block history, and pay scale as it relates to the time value of money, that undue harm to younger workers results from such a change. This ruling was made using the general economy as a model for aviation..(3-10% would stay on after 60- HA!) and once the aviation reality is overlaid on the assumptions a very different view will emerge. Here's hoping, anyway.

[Guest rozar s'macco]

The Commision was quite critical of the evidence provided by both respondent parties.

They weren't critical at all, rather, it was stated that the evidence provided wasn't in sufficient quantity to surmount the almost limitless wall that one must climb when arguing in the upside-down burden of proof world in which the CHRT operates.

[Vsplat]

Jumpy, a correction to your comment about ICAO and Canada's 'obligation' to follow suit.

Canada long ago abandoned the ICAO age 60 restriction. We filed a difference to do so, and placed the notice on the back of your licence to warn Canadian over-60 pilots that their privileges did not extend into other ICAO countries without explicit permission.

ICAO's change had zero impact on the Canadian regulatory landscape.

Vs

[rudder]

There is much work left to be done on this file, that is for certain.  I thought Captain Duke's work went 75% of the way to proving that over about a 20% cohort on a widebody fleet, the 60+ pilot becomes unusable, practically speaking.  In the upside-down CHRT process however, that is insufficient as the burden of proof is on the defendant, not the accuser (how wonderful it must be to be a plaintiff whose "rights" have been infringed!).  Furthermore, I think the window is open for APCA to conclusively show, using our vacation data, block history, and pay scale as it relates to the time value of money, that undue harm to younger workers results from such a change.  This ruling was made using the general economy as a model for aviation..(3-10% would stay on after 60- HA!) and once the aviation reality is overlaid on the assumptions a very different view will emerge.  Here's hoping, anyway.

And what if this all changes? (see my above post re:United) What assurances are there that the AC pay environment, scheduling, vacation bidding, etc will never be modified. Formula pay doesn't really exist anymore (witness the setting of the EMB and B787 pay scales).

You suggest that it is about money and only money. If that were true, then in every case a pilot would bid the highest paying job without exception. That is certainly not the case in practice. Perhaps the cohort could be mitigated if there was a greater financial disincentive to bid widebody FO over narrowbody Capt. Who knows. I am sure that this will all be the subject of great discussion and whomever takes the political lead can make whatever contract changes that will have majority support in 2011.

[bm330]

Not to drag the issue all the way back to the beginning but does anyone know if the contractual wording of "Retirement Age" refers to a TC or some regulatory definition?

If a contract based on a collective bargaining process defines an end point of employment in terms of years of service or years of age , how is it different than limiting flight duty times or a company's scheduling conventions?

[BoomerPete]

The Commision was quite critical of the evidence provided by both respondent parties.

They weren't critical at all, rather, it was stated that the evidence provided wasn't in sufficient quantity to surmount the almost limitless wall that one must climb when arguing in the upside-down burden of proof world in which the CHRT operates.

In the context of a Human Rights Tribunal where the onus is on you, the employer, to demonstrate why you cannot reasonably accommodate the adjudged rights of a group of your employees, being taken to task for showing up without the evidence that supports your conclusions would constitute criticism in my opinion.

The "wall" was hardly limitless as it's clear that the Tribunal gave a serious consideration to the impact of the over/under element of ICAOs regulations for pilots over 60. Perhaps if the documentation that supported how the conclusions had been arrived at was a part of AC's presentation, along with the rationale by which they judged schedules produced by their experiments to be "materially" lower in quality the submission might have been given greater weight. That information wasn't provided.

Similarly, and probably more importantly, neither party indicated that they'd made any effort to try to find a means of accommodation that would minimize their percieved hardship as a way of demonstrating that accommodation could not be achieved without undue hardship. As other carriers have been able to find such means the entire argument of undue hardship was likely lost on that point alone.

Pete

[124] Unfortunately, ... did not provide any evidence as to how he arrived at these conclusions or even the resulting schedules produced from the experiment.

[125] More importantly, we have no evidence as to what is a materially lower quality schedule or why this is so. Further, there is no evidence coming from this experiment as to how many is “many”, i.e. the number of first officers who would receive a less desirable schedule.

[126] The evidence is also lacking as to the potential cost to Air Canada of hiring at least one additional pilot while continuing to pay the reserve pilots whose services cannot be utilized.

[127] When the experiment shifts to 20 % of captains and 11 % of first officers, we are told that there is no solution, i.e. no schedule can be produced for any of the pilots. Again, no explanation is given for this result.

[128] These same observations apply to both phases of the Toronto A-340 experiment.

[Innuendo]

Money is the sole reason and motivator for people to do work.

I don't believe that is an absolute truth.

I have run into all sorts retirees who are back at some some level of work when they found out that doing the things full time, that they they did on days off, grew stale.

Many people need something that has a sense of accomplishment or contribution attached to it.

Hobbies or activities that merely occupy time become mind numbing after the novelty wears off.

[deicer]

Now this would be a pilots' wet dream....

http://www.upi.com/Odd_News/2009/09/02/Sec...18981251923164/

[Kip Powick]

A long read.......many opinions and here is one more....

I wouldn't come back if they offered me the chance and tripled my salary.

Those of you adamant about flying past 60 are obviously not there yet and when you get there and start walking those years beyond, you're going to be really PO that you didn't get "out" sooner.

I would never bad mouth the industry and Mil that paid my wages until I hit the big 6-0 but think about it...........really think about it...................how much "good time" have you got after flying for 40 years, or so, and being punted through the goal posts at 60???

Retired..... and living the incredibly best years of my life !!!!!

DKP

[inchman]

A long read.......many opinions and here is one more....

I wouldn't come back if they offered me the chance and  tripled my salary.

....

Retired..... and living the incredibly best years of my life !!!!!

DKP

I fully agree, Kip.

You have obviously set yourself up for an excellent retirement and I'm hoping that I'm in the same position as you when I get to 60.

Once the kids are through college and one can live in a comfortable home with no mortgage, I really don't see the point of having to work my life around a flying schedule.

This ruling will have a minor effect on my earnings over the next few years but I'm hoping that everything falls into place to say "Adios" when I get to 60.

I think that many others will continue to do so, even with this ruling. My personal guess is that only 25% will work past 61.

[Spinnaker]

I'd tend to agree with you inchman. This could be considered the 'divorce clause' for the guy who's been cleaned out one too many times and left with no options. Otherwise... who wouldn't get out at the first available opportunity. We have a few beyond 60 and they fly such a reduced block it is totally insignificant to a first officer's career.

[AIP]

Rumour has it Air Canada will appeal by the end of the week.

Rumour that ACPA will also appeal.

Lawyers will be happy.

[Don Hudson]

Kip;

I wouldn't come back if they offered me the chance and tripled my salary.

Those of you adamant about flying past 60 are obviously not there yet and when you get there and start walking those years beyond, you're going to be really PO that you didn't get "out" sooner.

I would never bad mouth the industry and Mil that paid my wages until I hit the big 6-0 but think about it...........really think about it...................how much "good time" have you got after flying for 40 years, or so, and being punted through the goal posts at 60???

Retired..... and living the incredibly best years of my life !!!!!

There aren't many posts which really capture the essence of an issue or an argument Kip, but yours is the best post, by a very, very long way, on retirement-at-sixty. There is simply nothing else to say. Hat's off - well said.

[Spinnaker]

I'd like out at 55. I can't for the life of me fgiure out why anyone would beat themselves up any longer than they have to. I have an AC friend coming in to town tonight who is staying at my house, so I assume I'll have a full earful about this subject if I want it or not.