60+ - Partsinnlegg

Jeg oppfatter dette som såpass balansert at det fortjener publisering. Denne konkrete saken, altså Lagmannsrettens domslutning, skal avgjøres i Høyesterett i neste måned.

FLYING OVER 60- UPDATE

(in English, to reach ALL pilots)

Dear colleague,

After we sent you a letter last August, explaining our position, the wheels of Justice have been grinding.

As you all know, we lost our case in “Lagmannsretten”. To be honest, to us that came as a shock. We then believed as we do now, that we have the law on our side.

We expected the court to judge according to European law (which has been implemented in Norwegian law) but we were sadly mistaken.

The court came up with a strange concoction of arguments, to justify what they “felt” was right. In the verdict the court even managed to contradict itself.

An example of this was the argument of safety, which was broadly used by CHC and Union lawyers (and supported by the Union). To say it short: “it is not safe to fly over 60”

This argument was thoroughly slaughtered during the court session (we had brought in the former ICAO medical director), and none of the Union witnesses dared say that flying over 60 was dangerous (when asked).

Lagmannsretten confirmed this by starting with stating that there was no proof of diminishing safety, when using pilots over 60.

Notwithstanding this statement, the court later uses the “safety argument” to support their verdict.

In our opinion, it was a poor verdict, and in fact we are supported by one of this countries leading Law experts, professor Henning Jakhelln, scores of other lawyers and not in the least, a vast group of laymen.

When we talk about laymen, people in other professions than aviation, we still have to meet the first one who understands the reason why we are discriminated because of our age, as well as the standpoint taken by “our” Union. They all expect the Union to stand on our side and not oppose us. Ask you neighbor next time….

The decision to appeal to the High Court therefore was an easy one for us.

The first hinder one has to pass before being accepted in the high court is the High Court’s Appeal Commission (Høyesteretts Ankeutvalg).

In our case this took some time, as another case on age discrimination with some similarities already was admitted to the High Court.

This case was one of a sailor that had been hired at the age of 62 and then subsequently

fired (and offered a temporary job).

The Sailor lost his case in the High Court….

The legal reason used by the judges (4 out of 5) to reject the appeal was the ”Sailors Law”  This LAW stipulates that it is not legal to discriminate on age and at the same time stipulates a retirement age of 62. The State (Lawmaker) had according to the High Court set a maximum age before which age discrimination was illegal. The High Court interpreted this as being legal to discriminate on age OVER the age of 62 and thus the Sailor lost his appeal.

As you all know, the maximum LEGAL age for commercial pilots in this country is 65…

Shortly after this decision, we received the message that the High Court’s Appeal Commission had accepted our appeal, something they most certainly would not have done if they had considered the denial of the sailors appeal to be decisive for our case.

The case in the High Court will solely address the “legality” of the “Lagmannsrettens” decision- did they follow the law?

No further “evidence” may be presented

As a matter of interest, the High Court judge preparing the case is the one that wanted to grant the Sailor’s appeal…..

General information, (read carefully, there is a world out there)

On the first of July,1999, the JAA allowed pilots to fly commercially up to the age of 65. ICAO followed in 2006, when they published their new Standards after receiving the strongest support ever on a new Standard.

Both rulings had a limitation, only one pilot was allowed to be over 60. This was a compromise, to get as many countries as possible to accept the new Standard, even though no medical statistics support such a rule. There is, however a clause in the Standards; they will be revised in 2011. From trustworthy sources we know that this limitation will be removed.

In 2004, the EU came up with the Age Discrimination Act. The last countries to make this part of their National law, did so in July 2006. It was not taken up in EOS law

(Norway, Switzerland, Iceland and Liechtenstein) as the immense “state” of Liechtenstein opposed this. Notwithstanding this, Norway decided to implement the Act and made it part of Norwegian law.

Ever since JAA and ICAO rules, European and National laws have been changed, this has been followed by a chain of court cases. Most of the cases where pilots were involved were lost by the pilots.

F.e. in Germany in 2002, 2004 and 2007, in the Netherlands in 2004, Australia in 1999 and 2001 before the Human Rights commission of the UN. A Widerøe pilot lost his case in Norway in Halogaland Lagmannsrett, but was unable to continue to the High Court as he lost his medical. And of course our cases in 2008 and 2009.

But if we look out into the world, things are changing, albeit slowly, the courts are picking up to the new laws that have been written.

In 2004, Australia accepted a new law against age discrimination, making it illegal to fire anybody on the grounds of age. Down under a pilot can now fly until he drops dead, providing he has a valid medical and passes his proficiency tests. New Zealand has in practice never had age discrimination, and as a matter of fact, the oldest commercial pilot still flying over there is 79, got his first pair of spectacles last year.

In France, one of the countries originally opposed to raising the age for pilots to 65, it is now illegal to fire a pilot for age reasons before the age of 65.

In the Netherlands, which has a High Court decision from 2004 in disfavor of KLM pilots, a new group of pilots has been allowed to take up their case in the light of the new Age Discrimination Act. The court hearing was on April 15, decision yet unknown. These pilots are going all the way to the European court if required.

The USA, another opponent of 60+ in the early days, now allows both pilots in the cockpit to be up to 65.

In Germany, the Federal Court has decided that it would no longer burn its fingers on age discrimination towards pilots (after judging in favor of a Stewardess who wished to continue to 65), so they have sent the whole case directly to the European Court.

The case is fronted by 3 pilots as part of a group of 52 pilots involved in the case.

In Norway, a female employee of “Gjensidige” won her case in “Tingretten” (the lower court), to be allowed to continue to 70.  (the arguments used by her opponents lawyer were almost a blue copy of the arguments used by our opponents). Gjensidige has appealed the decision; their lawyer stated on television that it must be the right of the company to employ younger people in stead of older.

14 SAS pilots are meeting in Lagmannsretten in June over an argument if SAS is allowed to fire pilots over 60 before firing younger pilots. These pilots are still working, as SAS lost all their appeals up to the High Court to keep them grounded.

In Denmark, 6 pilots won their case before the “Ligebehandlingsnæmda”(Equal Rights Committee), the conclusion being that it was illegal to fire pilots just because they had past 60. 8 more pilots are in line to have their cases judged.

In Sweden, where a group of SAS pilots lost their case in the middle court against SAS, a group of 25 Stewardesses won their case in the Swedish equal rights committee against SAS; it was illegal to fire them at 60 in stead of the legal age of 65. The SAS pilots are now taking up their cases again in the Equal Rights Committee.

And last, but not least, Canada, a country that rings a bell to most of us in CHC.

Over there pilots have pursued the legal route against Air Canada and the Mandatory Retirement Age of 60, which Air Canada had agreed upon together with ACPA, the pilots Union (in their joint Agreement).

Their case was eventually brought up in the Human Rights Tribunal (sent there by the court).

In its first judgment the HRT ruled in favor of Air Canada and ACPA (joined as part helper).

The High Court however, did not accept the Judgment of the HRT as the HRT had not correctly addressed the question the court had sent them.

After a second HRT hearing, in August 2009, the HRT came to the opposite conclusion, being that mandatory retirement was illegal. This means that Air Canada has to reemploy the pilots. Apart from the two involved in the HRT hearing, there are many other pilots (over 100) who have their complaint in the legal system and also will be reinstated.

These days the HRT is deliberating damages to be paid. Damages for which the pilots union (ACPA) has been made jointly responsible for as they were the co-signer of an “illegal” agreement.

Damages, only since the HRT decision last August amount to Can$7 million and are rising by the day.

Well, that is Canada and it is far away from Norway, but there is no guarantee that the Norwegian court system will not follow the same approach.

If you would like to read about the Canadian case, try these links:

www.chrc-ccdp.ca, look up archives, 2009, Canadian HRT decision in Vilven vs Air Canada.

Another interesting site is

www.flypast60.com  and look into update

The right (duty) of all of us to express our opinion

Of course, everybody is entitled to an opinion as they are entitled to NOT having an opinion. However in the last case one accepts whatever action other persons, who they even may have elected, choose to undertake.

In our August letter we included an opinion poll. None of us has been asked by any pilot what the result of that opinion poll was.

We can only guess why. The opinion poll was not used in “Lagmannsretten”. Was that because there were so many NO-votes? Or are most pilots not interested in the issue; their pension is still so far away.

As a matter of fact, the poll was rather inconclusive. Of a total of 189 pilots, only 45 pilots answered (2 were rejected, another 2 answered too late).

Of these votes, 26 were against continuing after 60, 19 for.

The pilots in our group, who had already passed 60, were not eligible to vote. There were 6 of them.

With so few pilots answering the poll (23, 8%) we considered the poll as being inconclusive.

If one may at all conclude anything from the result, it is a split pilot force and far away from the massive support the board claims it has. That was probably the reason the board never asked for the result either, neither before nor during the trial- it might not fit into their assertion of massive support from the pilots, brought forward by their lawyer.

The court case is scheduled in the third week of August, by then only three of us will still be employed by CHC.

Facts:

-         We do not dispute the pension age of 58 (the right of pensioning oneself)

-         The company is still hiring pilots, we are not “taking anybody’s place”

-         We dispute the Union’s right to stipulate an age for mandatory retirement which is contradictory to National and International laws and regulations

-         Age 60 was introduced in our agreement solely because that was the maximum license age; this age is now 65 and Union/Company should have adjusted to this new reality

-         The law places us in the company of women, colored people, homosexuals and people with other religions than Christianity. We do not accept that age is not treated in the same way as these other groups are; it is illegal to discriminate!

-         Those that think that we can just find us another job, live on another planet; the market is not waiting for 60+ pilots, as the two main operators in our line of work in Norway (still) both have a (illegal?) limit of 60

-         If the High court decides in our favor, the Union will have missed out on a great opportunity to negotiate improvements in our pension as a trade for accepting 65

-         We all like our work and want to continue with it.

-         The world is changing

P.s.      Throughout the history of our case we have stuck to the principle of only coming with facts whenever the media asked us to comment our case. In CHC Norway, with a continuing demand for pilots we are not threatening anybodies job and we feel it is important not to create tension between different pilot groups(apart from the tension that may occur as a mere result of our court case).

We are therefore very dissappointed in what the unions lawyer managed to say to Stavanger Aftenblad. Not only does he come with statements which are clearly wrong; “og krever både å motta full lønn og full pensjon fra fylte 60,altså dobbelt opp, sier Skarning.” As a lawyer he should know that that is against Norwegian law, and it is therefore not the case. Wages and pension are not paid simultaneously, the pension is put on wait and pension payments do not start until the last wages have been earned

Other remarks like “egoistisk angrep”,” trekke opp stigen etter seg”  are the kind of smearing remarks we hoped this process would stay without.

We strongly urge the Union board to take control over their lawyer. This is not a war, this is a difference in opinion which we are asking the courts to solve.

http://www.aftenbladet.no/innenriks/1205749/Vil_fly_til_de_er_65.html