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…
Christina Catenacci
First Reference Human Resources and Compliance Editor
Additionally, find Christina at https://www.christinacatenacci.com/
Furthermore, Christina is a co-founder of a new AI company, voyAIge strategy. Check it out at:
https://www.voyaigestrategy.com/
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If I understand properly, you have a problem in respect to the statement that mandatory retirement was still being employed at Air Canada even after December 15, 2012 where 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, is repealed.
After reading the letter of understanding that is part of the new collective agreement, it does not require mandatory retirement but indicates that there will be restrictions on the ability of pilots to bid and fly specific aircraft after they reach age 60.
Hence, Although Air Canada does not intend to use mandatory retirement in its previous form when December 15, 2012 comes around; Air Canada will be using the Bona Fide Occupational Requirement justification provided under human rights legislation to restrict what work pilots can perform past the age of 60 i.e., what airplanes they can fly, and in what status, among others.
I assume those stringent restrictions fit the BFOR test already established in jurisprudence. If not, they will be challenged… and is a whole different issue than the matter at hand.
However, the restriction in the letter of understanding that is part of the new collective agreement could be viewed or interpreted (by the author and other readers) to form a sort of mandatory phased retirement based on a BFOR? Because, if Pilots do not conform to the various strict restrictions will be forced to retire. Do I not understand this right?
Thank you Mrs. Henderson for your comment…
The author is away at this moment…
I will obtain a copy of, and read the Letter of Understanding that is part of the new collective agreement. Once this is done, I will be able to better respond to your comment and see what the author was trying to convey, and if there was a misunderstanding in interpretation.
It is inaccurate to suggest that Air Canada attempted to “sneak in” mandatory retirement for its pilots in contravention of the law.
In fact, Air Canada’s final offer, which is now the collective agreement, abolishes mandatory retirement for pilots at age 60 as of December 1, 2012. This is in keeping with the repeal of the “normal age” mandatory retirement provision of the Canadian Human Rights Act, s. 15 (1) (c), as of December 15, 2012.
As for the continuing mandatory retirement of pilots who reach age 60 before December 1, the Federal Court of Appeal in July confirmed, as you noted, that s. 15(1)(c) is constitutionally valid.
In short, there is nothing questionable about the mandatory retirement provisions of Air Canada’s final offer and the resulting collective agreement; they are clearly lawful. As mandatory retirement has been a contentious issue within the Air Canada pilot group, it is important for the company that the facts be set straight.
Rachelle Henderson
Senior Counsel, Labour & Employment Law
Air Canada