Air Canada applies for judicial review of AC/CAW decision

Discussion in 'Air Canada | Aeroplan' started by ACMM, Oct 23, 2011.  |  Print Topic

  1. ACMM
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    Interesting times!

    This letter from the CAW website... snippet below ... full letter at this link (PDF file attached at hte bottom of this post)

    10-23-2011 4-11-48 PM.jpg

    Also this at this link ...

    10-23-2011 4-15-07 PM.jpg

    PDF File of letter below ...
     

    Attached Files:

  2. ACMM
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    Anyone have any insight to what his is all about? I thought an arbitration decision was final.

    [From my milePoint enabled iPhone]
     
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  3. canucklehead
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    I thought arbitration matters were final also! For AC to decide to appeal seems like a big thing. I will be interested to see how this plays out, but certainly it drives another wedge between the union and management. Ill feelings are not easily forgotten!
     
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  4. YULtide

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    Hmm.... This looks like a hardball tactic by Air Canada to try to step back from an arbitrated settlement that they're not happy with. But it may be aimed at the FAs, whose dispute is now before an arbitrator, is it not? If so, you have to wonder about the message being sent: "We agree to binding arbitration, but we don't guarantee that we will be bound by it if we don't like the outcome."
     
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  5. tcook052
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    Goodness tis is like a script from a cheesy sopa opera. Will Calin suddenly develop amnesia? Will Duncan be accused of more ill timed UG's? Will frequent flyers name theirs sons Ben after Ben Smith? Anything could happen it seems these days.
     
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  6. ACMM
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    ... As the stomach turns. :p

    [From my milePoint enabled iPhone]
     
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  7. canucklehead
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    agree, and think this is not the example AC management should be setting -- both sides can play this game and what AC needs as a whole is to not have the public have no confidence that their planes will fly. One thought I did think may be part of this game is if AC feels confident that whatever the contract status, the federal government will not let the workers strike. I hope I am wrong.
     
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  8. canucklehead
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    Ben is a great name and frequent flyers should continue to use the name, Mr. Smith aside! ;)
    Calin, however, may not be high on the list of children's names right now amongst CAW and CUPE members! :eek:
     
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  9. YULtide

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    Good point. The feds do seems to be in a pretty anti-union mood and that may be giving the AC management a sense of impunity. You've got to wonder about how the effects on employee morale will affect operations as this dispute continues. Not that the employees have been less than professional to date, but there's a limit to how long a normal person can maintain the facade of the happy employee.
     
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  10. The cheesy soap opera is being played out by unionized characters who don't seem to understand the industry AC is in. Every airline in NA and probably Europe that has a legacy DB pension plan wants out because they are simply unaffordable. AC management are being prudent managers by asking for government intervention here. The unions just don't get it in terms of what their members should expect going forward. In fact they know full well what is happening to the industry but are unwilling to tell their membership the truth.

    Therefore the soap opera should have the first names of the union leaders as headliners. Even so you and others are being a little over dramatic here. This is a simple and single issue, pensions.
     
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  11. ACMM
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  12. tcook052
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    Over dramatic? Dramatic times call for slightly dramatic measures & posts which serve to illustrate a point, not to be taken literally.
     
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  13. I"ll take facts over drama anyday unless I'm watching fiction. We have a classic union management fight and that's not very dramatic at all.
     
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  14. tcook052
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    Fact is this isn't just two sides of a coin with the classic union & management battle, it's more like Rubik's cube with union, mangement AND government including CIRB all manouvering on an almost daily basis adding to the story which relates to my previous point about the added drama in this dispute over past ones.

    That is only MHO and we can happily disagree if we see things differently.
     
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  15. tcook052
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    Indeed and I know of one FTer who chose it recently for his son's name.
     
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  16. milchap
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    All of these battles and counter attacks are poisoning the atmosphere and no one wins.
     
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  17. YULtide

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    Quite right. And the passengers are stuck in the middle, wondering if they will be able to get to their destinations as scheduled.
     
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  18. ACMM
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    ... and this morning from the Toronto Star ...

    CAW furious with Air Canada appeal


    Link

    10-25-2011 8-07-23 AM.jpg
     
  19. Ev
    Every AC labor negotiation involves clrb because they are a federally regulated Company. It is nothing more than union management using all the tools at their disposal to stop AC's attempts at making a decent profit. Nothing dramatic there.
     
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  20. The
    The flights I was on last week and so far this week are very full so AC must be doing something right. I have about 20 more flights to take this month and next and most of them are already booked on AC.
     
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  21. mtlfire

    mtlfire Gold Member

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    I'll assume that labour, although governed by various labour codes, is largely the same across Canada. To that extent an arbitrators decision can always be contested, however its is largely a difficult process that requires specific criteria that its typically established over years of jurisprudence.

    An arbitration decision is largely a subjective decision, that is the arbitrator often renders his decision based on his opinion, the credibility of the witnesses etc. That portion of a decision is next to impossible to contest. However an arbitrator also often has certain responsibilities, or limitations in his power -- this is where an arbitrators decision can overturned if there is an error in law (we call it an erreur en droit in french, so I'm doing some literal translation here).

    In Quebec an arbitrators decision is appealed to the Superior Court, the appeal is automatic without any proof having to be made before the appeal is heard. As the witnesses are no reheard, only the papers of the decision are available its for this reason that a Superior Court Judge will never 'second guess' the arbitrator on his subjective decisions as the arbitrator is supposed to be the expert in labour law and had the possibility to hear and question all the witnesses. Instead the judge will concentrate solely on the legal aspects of the decision. Where the responsibilities of the law respected? etc.

    As an example, in article 99 of the labour code in Quebec the arbitrator must take into consideration 'internal equity' in the workplace between different groups of employees when rendering his decision. If after hearing the proof the arbitrator decides to 'exclude' a group of employees (based on the proof) -- this is a subjective decision and would likely not be ground for appeal. But assume the opposite, he decided to include a group of employees in the comparison that the union submitted: managers. If the managers weren't unionized, this could be grounds for appeal as if you aren't unionized in Quebec you don't meet the requirements for a 'worker', hence the internal equity between workers obligation would be violated and could be grounds for appeal.

    After superior court you can apply for leave to appeal to the Quebec Court of appeals. The Quebec Court of appeals hears cases with essentially the same criteria to render a decision. Likely you have a greater chance to be successful here if the Superior Courts have rendered conflicting decisions, or few decisions, and they think it would be of interest for a higher court to establish a stronger jurisprudence. This court consists of three judges, before appearing before them you have to seek leave to appeal before one judge of the Quebec Court who will evaluate your case to determine if it is worth hearing.

    I'n my experience having a arbitrators decision overturned in Superior Court isn't easy, arbitrators don't often make those legal mistakes. Either way the process on the provincial level can be quite long. A few years ago we won a a decision in arbitration, the employer asked the superior court to put aside the decision while they contested as it would create undue hardship and it was granted. They later went on to win in Superior Court an appeal that the arbitrator had over based is jurisdiction in the labour code. We sought leave to appeal, it was granted and in Quebec Court we managed to overturn the Superior Courts decision. The whole process took just over 3 years but helped in the very least clarify the jurisdiction of the grievance arbitrator under the labour code.

    ** As I mentioned, I largely responded based on the Quebec legal system. And did some literal translation into English; so don't expect to get credit for this course :cool:. I'm confident a comparable system exists in most provinces as well as at the federal level.
     
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  22. ACMM
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    Thanks for your insight mtlfire
     
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  23. tcook052
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    The reports I've read indicated the decision to refer this dispute to the CIRB was "rare" though not unheard of and AFAIK the AC labour dispute earlier this year wasn't refer handled in the same fashion.

    http://www.thestar.com/business/art...a-flight-attendants-from-going-on-strike?bn=1

    “Referrals they are not an everyday occurrence. They do occur,” said Ginette Brazeau, executive director and senior registrar of the Canada Industrial Relations Board, adding it can require written submissions from the parties or an actual hearing.

    This question, permitted under Canada Labour Code, focuses on what services, if any, are “necessary to prevent an immediate and serious danger to the safety or the health of the public,” Brazeau said.

    The last time it was used was last November in the West Coast port dispute, and a decision was issued in January. It has also been used in the case of ferry service and CN Rail.
     
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  24. canucklehead
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    I am a bit confused. Are we discussing the topic of this thread - AC appealing the arbitration decision between AC and CAW, or are we discussing the more general issue of AC and union negotiations. If the former, the decision was made by AC following deliberation, not the labour group. If its the latter, then its a fair discussion regarding management and labour, and how the discussion between the two has become so acrimonious with both sides so far apart in expectations.
     
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  25. Cage
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    More to mtlfire post above.
    AC has raised a process issue regarding the Arbitrator's decision WRT the acceptance of the CAW position for combined DB/DC pension. The CAW issued their proposal late in the game and it was against the set out process. However the CAW argued that the established process was absurd and the arbitrator agreed. AC is asking for judicial review of the arbitrators decision on the acceptance of the CAW position.

    Also AC is questioning the mathmatical assumptions in the CAW combined DB/DC position. The CAW assumptions were not vetted infront of the arbitrator and AC is asking for a judicial review of this aspect of the proposal.
     
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