Human Resources Committee on Feb. 15th, 2011

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

Could you be a bit more specific? A 65 year old who works until the age of 67, for example, is already employed, already in the system. So no new measures are applicable to that person. The person just continues to receive what they have, since they are already on the job. The measures are already being implemented. The only issue is when they stop being implemented. Actually, they will stop when the person decides to leave their job or when the employer determines they can no longer fulfill their duties.

I am just trying to understand what measures you are referring to, because we do not know what you mean.

[Susanna Cluff-Clyburne]

Again, I'm not in a position to speak on behalf of individual companies because every company is different. They are asking for some time to be able to implement any changes that may need to be made in their businesses before the legislation comes into force.

[The Chair, Conservative, Candice Bergen]

Thank you very much, Mr. Lessard.

We'll go to Mr. Martin, please.

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

I want to thank you all very much for coming today.

This is actually a very important piece of public policy and business that we do here. I have to say that I'm challenged by it in the same way that the chamber is, in that most of the conversation I've had with seniors in my riding is not so much about mandatory retirement as about making sure they have a decent pension at the end of the day that would allow them to retire with some dignity. I understand the argument that is made that if you allow them to work longer, maybe they could build up the credits they need. But this also speaks to the often tongue-in-cheek comment that what we want to create here is cradle-to-the-grave McJobs for everybody. That's certainly not the workplace whose development I'd want to be supporting.

I have to say honestly that I have some concerns as well about how this might impact Canada Pension, for example. It wasn't that long ago that there was a fear that the Liberal government of the day was going to move the retirement age to 67 for old age security, which would be quite detrimental to many hundreds of thousands of seniors who retire and count on that old age security to put them into a category that...well, it doesn't get them out of poverty anymore, but it certainly lifts them a little bit. So it's interesting for me that the chamber has done the kind of work you have done over the last few days to bring forward what I think are amendments that we should consider seriously here.

Have you talked at all, Susanna, with any of the labour groups that might be present in your area concerning some of this? It seems to me, from the conversations I've had with some of them—and we will have the pilots' association before us later this morning—that there are similar issues there. We need to look at the impact of this on retirement plans, how they mesh or don't mesh, and how this interfaces with Canada Pension and what that could mean going forward, and what it would signal to the government that they might consider doing that would impact, then, on the hundreds of thousands of people out there who would love to retire, if they only had a pension plan that would allow them to do so.

[Susanna Cluff-Clyburne]

No, I have not spoken with any labour organizations. My presentation today was based on discussions with our federally regulated members.

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

Maybe, Susan, you'd like to comment on that.

[Susan Eng]

You have raised a number of points concerning this issue, as also in previous questioning; that is, the concern about people's retirement plans.

In fact, it is upon the lower-income people who have not earned enough pension credits, if they have a pension plan at all to contribute to, and people who are not in workplaces where there are pensions, that mandatory retirement would have a real, negative impact.

There was even a person who was in the Ontario civil service who wrote to us. Of course, they have decent pensions there, but she hadn't gotten the credits. She had to go back to work late in life, and she did not have the credits to retire adequately. She felt that she was going to be asked to leave and not have the opportunity to continue working, when she was completely capable. That is the pernicious effect of mandatory retirement: it hurts the people who need protection the most.

I know there is always a concern about making sure that they make room for other people. I remember that one part of the discussion here has been that we should make room for younger workers, and so on. That is the crux of the pilots' unions' positioning in court. The issue arises here when you take two equally qualified people—and the pilots' union can guarantee that every pilot is qualified—and set them in front of you and say: “You're 35, and you're 60; since you're 60, you're out, and since you're 35, you're in.”

That is the essential definition of age discrimination, which is why we oppose it. When we're talking about making sure that people have something to retire on, that's what we're talking about. People have to be able to earn their pension and savings so that they can retire safely. It's another part of our advocacy for good pension plans for everybody. But that is for another day, I'm sure.

As to the interaction with the CPP, I'm not sure how this situation would offend it, because every person who has access to a pension plan and continues working continues to contribute to the pension plan and does not actually take out any pension. Therefore, the pension fund, which has been under threat in the last little while, would actually be more stable, if more people stayed working.

Furthermore, the workplaces having to take measures to deal with this would in fact be further ahead. They would have experienced workers carrying on in their jobs. There'll be less to do than if the person left and they had to retrain. Really, if you need the extended period of time, great.

We have waited long enough. There is no need to wait any longer. You can make this change immediately.

[The Chair, Conservative, Candice Bergen]

Thank you very much.

That's all the time.

Mr. Komarnicki, you have six minutes.

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

Thank you, Madam Chair.

I think no one argues with the basic premise that mandatory retirement should be removed, but the issue is not necessarily black and white, as Madame Folco would suggest, or even the case that was handed down very recently. This morning, I looked at a copy of it, and page 126—it is a lengthy decision—says:

The Tribunal’s finding that Air Canada had not established that being under the age of 60 was a bona fide occupational requirement for its airline pilots at the time that Messrs. Vilven and Kelly’s employment was terminated in 2003 and 2005 respectively was reasonable. However, the Tribunal’s finding that Air Canada had not established that age was a bona fide occupational requirement for its pilots in light of the post-November 2006 ICAO standards was not reasonable.

As [a] result, Air Canada’s application for judicial review as it relates to the bona fide occupational requirement issue will be allowed in part. The question of whether Air Canada has established that age was a bona fide occupational requirement for its airline pilots after November of 2006 is remitted to the same panel of the Tribunal, if available, for re-determination on the basis of the existing record, in light of all three elements of the Meiorin test.

So it's not black and white. There are some issues, and some of the parties have said that we need to do away with mandatory retirement, but we need to be careful how we do it.

I noted with interest that the chamber has suggested that perhaps we could do that, but you had some amendments. Maybe you could state briefly what you think the amendments might be, and I would invite the chamber to provide to this committee a written draft showing how you would like those amendments to look.

I have a question for Mr. Cox, so if you could, please quickly outline what you think the amendments would be and whether you're prepared to submit to this committee a more formal type of amendment that you would think is acceptable.

Susanna.

[Susanna Cluff-Clyburne]

Thank you, Mr. Komarnicki.

Essentially, we've recommended amendments in three areas. The first would be to explicitly permit federally regulated employers to apply mandatory retirement when there is an issue of risk to the safety of the public and/or other workers. The second area is to allow employers to continue to treat employees differently, based on their age, for the purposes of pension and benefits. The third area is to revise the proposed amendment that Bill C-481 proposes to the Canada Labour Code to explicitly state that in cases in which an employee is involuntarily terminated due to safety concerns and is eligible to receive a pension, no severance would be paid.

Those are the three areas. We'd be happy to submit that.

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

All right, thank you.

Mr. Cox, dealing with New Brunswick specifically, I take it the exception there that would allow age discrimination would deal with pension plans or plans established by the employer for the compulsory investing or locking in of pension contributions at a fixed or a determinable age in accordance with the Pension Benefit Standards Act, or something like that.

Do we need to go the full way of excluding or allowing for age discrimination where the pension plans are involved? Or can we take a middle ground, as I think was proposed by FETCO? It said we should allow for a discriminatory practice if the operation or terms and conditions of a bona fide retirement or pension plan where a bona fide group or employee insurance plan differentiates between individuals because of age. Can we not take a middle ground and say you can differentiate because of age for the purposes of the benefit plans? That would be less restrictive than New Brunswick but still a discrimination. What's your point of view on that?

[Seamus Cox]

Most of the provinces have that type of wording. It's commonly accepted that that allows for...because a pension plan has a lot of age requirements in there, such as when somebody can take an early pension, the normal retirement age, and how long they can work if they choose to work later. So it allows for those age differentiations without allowing specifically mandatory retirement.

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

Wouldn't there be a reasonable impact on the cost of the plans to others who are younger, let's say, when we're dealing with things like disability or medical, those kinds of things?

[Seamus Cox]

I'm not sure.

One thing to remember too, in terms of the issue of the safety and some of the things that are coming up, is that those exceptions already exist in every single human rights statute, including the Canadian Human Rights Act.

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

My question was not in that area.

My question was, is there not a legitimate financial impact on various plans and programs that companies have that are affected because of age in terms of how they impact others for contributions, the cost of the plans, and so on? Is that not the reason to allow a differentiation or why provinces allow that differentiation?

[Seamus Cox]

That could be. I think the common thought is that those types of differentiations again would fall under the other exception. You'd still be allowed to do them as long as you can show there's a reasonable.... It goes back to the reasonable justification. It's just not a concrete....

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

So why do all of the provinces have that specifically legislated? What's the reasoning behind that?

[Seamus Cox]

I think most of these clauses were put in at the outset of....

Sorry, do you want me to stop?

[The Chair, Conservative, Candice Bergen]

No, go ahead, finish your answer, please.

[Seamus Cox]

At the outset, when human rights statutes were being introduced, there was this fear that we did not know what was going to happen to pension plans, so they wanted to put something in there that would protect them.

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

You talked about bona fide plans and others. What do you know about that, and how do you differentiate?

[The Chair, Conservative, Candice Bergen]

Very quickly, please.

[Seamus Cox]

The Supreme Court said in our potash case that if a plan isn't a sham, then it's a bona fide plan.

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

And therefore you could discriminate as to age in that limited way.

[Seamus Cox]

With our act, because it specifically says “termination of employment”, that's allowed. It specifically says that. There was a recent decision in P.E.I. —