As I mentioned recently, the arbitrator favoured Air Canada’s final offer to its pilots to resolve the labour dispute – the collective agreement will be effective until April, 2016.
However, an issue has come to the forefront: there was a provision in Air Canada’s final offer (which now constitutes the new collective agreement) blatantly requiring the mandatory retirement of its pilots at age 60 years. This, in spite of the fact that an important provision of An Act to implement certain provisions of the 2011 budget as updated on June 6, 2011 and other measures (formerly Bill C-13) comes into force December 15, 2012, that states section 166 of the Act repeals section 15(1)(c) of the Canadian Human Rights Act which permits employers in the federal sector to impose mandatory retirement policies on their employees if they have reached “the normal age of retirement for employees working in positions similar to the position of that individual”.
And, let’s not forget that the issue of mandatory retirement of Air Canada pilots at age 60 has been hotly contested since 2007, leading to numerous decisions that that may still have live issues.
One must wonder, was this a last ditch effort to sneak in a mandatory retirement provision into a collective agreement and contract out of the reach of human rights laws before the upcoming repeal? Furthermore, wouldn’t this be a contravention of section 10 of the Act? That provision states:
“10 It is a discriminatory practice for an employer, employee organization or employer organization
(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment,
that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination”.
On the other hand, it appears that Air Canada intends to rely on the recent decision of the Federal Court of Appeal and argue that it is acceptable to have the mandatory retirement provision as there was no violation of the Canadian Charter of Rights and Freedoms.
Well, this may still go to court in the future, especially since there are still live issues regarding whether the “normal age of retirement” and the bona fide occupational requirement defenses are valid to justify the discrimination on the prohibited ground of age. This situation is just another reason why I think the recent Federal Court of Appeal decision will go all the way to the Supreme Court of Canada. Once we have a solid decision coming out of Canada’s highest court, we will know for sure whether this recently added provision can be upheld in a newly created collective agreement.
We will keep you posted on this issue…
First Reference Human Resources and Compliance Editor
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