Human Resources Committee on Feb. 10th, 2011

[John Farrell]

I certainly will.

We recognize the Canadian Armed Forces exception that has been raised in the legislation, and we think that in some cases there are analogous situations that could occur in the private sector.

We believe that the elimination of mandatory retirement must include an exception that allows mandatory retirement policies negotiated with employers and unions to be implemented in respect of positions that have public safety implications.

Second—

[The Chair, Conservative, Candice Bergen]

I'm sorry, Mr. Farrell, but you've gone well over your time. Knowing that you have those recommendations, possibly during the questions and answers, I could let you make them.

[John Farrell]

I can get to them again?

[The Chair, Conservative, Candice Bergen]

You'll have a chance to do that.

We'll begin with Madam Folco.

[Raymonde Folco, Liberal, Laval—Les Îles, QC]

Thank you, Madam Chair.

Thank you, both to the Canadian Human Rights Commission and to the Federally Regulated Employers--Transportation and Communication.

First of all, Mr. Farrell, I have three remarks to make. The first one is that it's not a government initiative; it's a private member's bill. I think it's really important to understand what a private member's bill can do. As I am sure you already know, a private member's bill cannot call on any financial elements because it would require royal assent.

As you know, I initiated this bill, so I was therefore very severely restricted in what I could suggest. It is very clear to everyone in Parliament that if it is to make its way through Parliament, no private member's bill can in any way ask for royal assent. This goes against the rules.

Nonetheless, the elements you presented are important. I would suggest that if this private member's bill eventually finds its way into the current legislation, there is a lot of work to be done subsequently. I would certainly look forward to doing that kind of work. But this private member's bill could in no way touch that. I was limited by this.

Those are elements I wanted to bring up.

Mr. Langtry, in your presentation you mentioned abolishing mandatory retirement in safety-sensitive occupations. I felt that was extremely important in your presentation, and I thought it segued very nicely into Mr. Farrell's presentation. It's the way I thought of the private member's bill as well.

I would like to touch on another point. When I studied this I was made aware that notwithstanding the fact that two former Air Canada pilots had won their case before the tribunal and before the courts, if other Air Canada pilots want to work beyond the age of 60, the whole process would have to be undertaken by those people. The court's decision and the tribunal's decision—correct me if I am wrong—apply only to those two people.

Could you explain why that is so?

[David Langtry]

First, you are correct; the declaration was limited to the two.

The pilots had sought to have all of them included. There are many cases that are before the tribunal right now, and those cases are having to be heard.

Perhaps I'll ask Philippe Dufresne, as the legal counsel, to explain further.

[Philippe Dufresne, Director and Senior Counsel, Litigation Services Division, Canadian Human Rights Commission]

Thank you.

It is a function of the limits of the administrative tribunal's authority. They were given the ability to interpret the charter and to make a ruling that a piece of legislation like section 15 is unconstitutional. But they don't have the power the courts have to strike it down; they only have the power to declare it inoperative for the purpose of the case before it.

That's what the tribunal did. The case came from Mr. Vilven and Mr. Kelly, and for the purpose of those complainants they declared it inoperative. But others need to be bringing different complaints.

That is one of the challenges with the system. Therefore, this committee's work can address the issue much more broadly than a specific complaint could.

[Raymonde Folco, Liberal, Laval—Les Îles, QC]

I will come back to that. I hope I have another minute.

That segues into why this bill...because as I mentioned, Justice La Forest had mentioned that it was up to the legislator, and this is why the legislator is now looking at this bill.

Thank you very much.

[The Chair, Conservative, Candice Bergen]

Thank you very much.

Mr. Lessard, please, for five minutes.

[Yves Lessard, Bloc, Chambly—Borduas, QC]

Thank you, Madam Chair. I also want to thank you, gentlemen, for being here this morning.

First, I want to talk about the concern expressed by Mr. Farrell. We feel that we need to differentiate between what comes under the bill and what comes under collective agreements or agreements between parties. For instance, when there is no union involved, the Minimum Wage Act or the Act respecting labour standards apply. You are worried about retirement. If someone is over the age of 60 or 65—depending on the retirement age set by the employer—and they continue working, they continue contributing to the pension plan and do not receive benefits until they stop working, unless the parties have come to another agreement. So, the two parties continue contributing to the pension plan as they would in the case of any other salaried employee. This person's benefits will be higher when they leave their employment at 68 instead of at 65 years of age because of an additional three-year contribution period. The same goes for other social benefits, such as sick leave. From what I understand, you are talking specifically about leave prescribed by collective agreements or leave also prescribed by the Act respecting labour standards.

This does not increase costs because individuals who leave their employment are usually replaced at the same cost. What may sometimes differ are health-related absences. However, as I have been the employer of 120 people, I can tell you that the oldest employees are not necessarily the ones who take the most sick leave. So, there is an age-related prejudice involved. I am not accusing you of being prejudiced, but this is what often comes to mind.

This bill seems interesting to me, and I believe that we will support it. Amendments will probably have to be introduced, in light of your comments. However, I don't believe that the amendments moved will reflect your position, Mr. Farrell. We are talking about age discrimination. In any company, when employees—whether they are 30 or 40 years old—become unfit to do their job, the employer has the right to let them go, to demote them or to offer them another position. This can also happen with 65-year-old employees. They can be told that their job description has changed and that the position now requires technical skills they do not possess, that the company cannot provide them with the necessary training, that they will not be able to adapt and that they must leave their job. All employers will always have this right, whether the employee is 40 or 68 years of age. I think that we must understand this fact.

There is another consideration here, which will be the topic of my question. Is there an age for retirement when we say that there should be no age discrimination? I will give you the example of the Canadian Senate. Senators are active until the age of 75. Recently, the Senate made a decision not to debate Bill C-311, which had been adopted by the House of Commons. I have seen the vote and can tell you that it was not the oldest members who refused to do the work. Senators are appointed by one person, and they went against a decision made by the elected representatives of 33 million citizens.

This analysis brings us to the question my colleague asked airplane pilots earlier. Who determines when we must leave our job? I think that this decision should always be based on employees' ability to do their job properly. Do you agree with me?

If you do, we will base ourselves on this principle.

[The Chair, Conservative, Candice Bergen]

Mr. Lessard has only left you 10 seconds to answer that question. So it will be a yes or a no.

[John Farrell]

It's unfair to say yes or no. It's the longest question I've ever been asked.

[The Chair, Conservative, Candice Bergen]

I'm sorry, there's really no time to answer. So I'll go to Mr. Martin. Thank you.

[Tony Martin, NDP, Sault Ste. Marie, ON]

Thank you very much.

I do want to give Mr. Farrell a chance to finish the recommendations he didn't get to. Could you just do those?

[John Farrell]

One is constrained when you have messages that you want to convey in this process. I thank you very much for allowing me to continue a little longer than I was allotted.

The reason we need to take some time is because fundamentally we believe we're on the right track here. We're making an amendment to a law that needs to be amended. It needs to be amended properly. We have to have good dialogue and we have to not rush to push a piece of legislation through Parliament. I think we have to make sure that we study it properly and make the proper decisions, and we'll avoid problems as we move down the road. This is why we need to make these recommendations.

Our key recommendations really are this.

In safety-sensitive positions we have to have the flexibility to look at these matters appropriately and to make decisions that will protect the safety of Canadians. We want the law to allow federally regulated employers to comply with applicable international standards that include mandatory policies. We cannot ignore the fact that we operate in a global economy.

We want to include explicit provisions that recognize that employers are permitted to differentiate between employees on the basis of age with respect to pension arrangements, benefits, and other insurance plans because the structure of these benefits is dependent on age. It's a natural process for benefit plans to change depending on age and depending on the duration of benefits. We don't want to be in a situation where we don't have the flexibility to manage our workforce and our pension plans properly. You see now that employers are gradually moving to health care spending accounts, which provide employees of different ages with different options to manage their affairs. We don't want to be caught with certain employees saying we're discriminating against them in one way or another.

Another recommendation is that we want an explicit provision that allows employers to establish workforce skills testing and competency programs that may increase in frequency as an employee's age increases, because we don't want to be caught with a situation where we believe that as employees get older we have to make sure they're meeting the competency requirements. We don't want to test everybody from age 20 to age 75...if we really want to make sure that elderly people are able to demonstrate that they have the physical and mental capabilities to do their work.

We want to include transition provisions that allow employers and unions to make gradual adjustments to the human resources policies, pension and benefits plans, and collective agreements to ensure that there is compliance with these amendments. And that will take some time. We want to include a coming into force provision that allows employers a significant period of time to make the adjustments necessary to comply with the amended legislation. We want the legislation to explicitly state that an employee is only entitled to severance pay if he or she is involuntarily terminated because the current language doesn't necessarily make that clear.

FETCO respectfully submits that we be permitted to engage in meaningful discussions with this committee and other parliamentarians to make sure that when we transition from the old law to the new law we understand the ramifications for the companies in the federal sector. If I ask you if you have actually talked to Air Canada about how this might be restructured, if you have talked to Canadian National Railways, if you have talked to Nav Canada, if you have talked to the grain elevators--they all have different issues that have to be taken into consideration and they will all be affected improperly if we don't make sure we get it right the first time.

That's fundamentally our position.

[Tony Martin, NDP, Sault Ste. Marie, ON]

Okay.

[The Chair, Conservative, Candice Bergen]

We'll have time for a second round, but you have about 30 seconds left.

[Tony Martin, NDP, Sault Ste. Marie, ON]

I have a quick question flowing from what you just said. This may affect hundreds of thousands of workers in significant ways. Some of it we don't see at the moment. For example, the Canada Pension kicks in at 60 and 65. There's now a movement to try to move that up a year. How will that be impacted by a decision made on mandatory retirement in this instance, because then you're talking about all of Canada? There are savings for some folks in that and there are losses for others.

[The Chair, Conservative, Candice Bergen]

Be very brief, please.

[John Farrell]

The simple answer is that we have to take a look at these effects and make rational decisions. You can't just take a simplistic approach. We have to spend a little bit of time to study this, but when we do, we'll end up with a better law, I think.

[The Chair, Conservative, Candice Bergen]

Mr. Komarnicki.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

First, with respect to Mr. Farrell's issue regarding the time you need for adjustments--he said a significant amount of time--and time to deal with the ramifications of a change like this, can you give us some idea of what you're talking about?

[John Farrell]

You have to appreciate that the old regime has been around for a long time, and work practices have been built around the existing law. You can't just turn that around on a dime because you've restructured your workforces and the rules and regulations governing them in accordance with the existing law. Clearly, if you're engaged in collective bargaining with unions, you have to have enough time to get to the point where you can deal with this, perhaps, in collective bargaining, if it requires, eventually, a change to collective agreements. I'm talking about implementation from an employer's perspective.

I think we need a year or a year and a half so that people can begin to plan how they're going to approach changes in their workplaces.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

The bill potentially could provide for coming into force a year after royal assent. That could address some of that. Was there another timeframe you had in mind, or is that what you were talking about?

[John Farrell]

Definitely it would need a minimum of a year.