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Workers'
Movement
Air Canada
The Discussion Continues --
Everybody to the Roadshows!
- New Horizons, September 21, 2011 -
 
Air Canada flight
attendants rally in Toronto, September 20,
2011, as part of support rallies across the country.
 The Canadian Union of
Public Employees (CUPE) bargaining
committee has reached another
tentative agreement (TA) with Air Canada.
Everybody heaved a sigh of relief, although many with
reservations. While we had voted almost unanimously in favour of a
strike if necessary, the object was to pressure
the company into granting us wages and working conditions, commensurate
with the important role we play.
We are told that this TA is a very good deal and that
the bargaining committee got "about 80% of what" we were asking for but
it will be interesting to see what the
other 20% consists of.
 Roadshows are being
organized to present the agreement
to the membership starting tomorrow. It is unfortunate that we do not
have access to the contents of the tentative
agreement before the meeting in order to prepare our questions. It
seems to us, as well, that the roadshow schedule is not very suitable
for a thorough discussion of the TA
and its implications.
It is essential that everybody who is able to attend
these roadshows. Our participation in the discussion and the actions
throughout this process until now has been
exemplary. Now we must get together to continue the discussion,
ensuring that we have the time necessary to consider the implications
and take an enlightened decision.
Let us continue to fulfil our responsibilities to our
collective through our vigorous discussions and our work to become the
decision-makers.
Calgary, September 20,
2011
General Motor's "Health Care Trust
Settlement"
Report on Final Day of GM's Class Action Suit Against
Its Retirees
Ontario Superior
Court, Toronto, September 12,
2011
The final day of hearings was set aside to hear
objections to the unilateral termination of the health care benefits of
GM retirees. In retrospect, it could hardly
have mattered as Justice Perell released his ruling the following day
completely dismissing with a few crocodile tears the objections of GM
retirees.
About 50 people attended the final day of hearings,
including a group of 20 retirees determined to defend their rights that
GM and the courts are trampling underfoot.
Justice Paul Perell opened by saying the third day of
hearings was made necessary because many retirees did not receive
sufficient notice of the hearings' dates.
Four GM retirees spoke on behalf of those opposed to the
negation of their health care rights, which GM had agreed to in legal
contracts.
The first retiree began his intervention with three
questions: if less than 100 retirees opt out of the Health Care Trust
(HCT), will GM continue to pay their health care
benefits? If more than 100 retirees opt out, what will GM do? Why is
there a necessity of a court proceeding if GM and the CAW have already
reached an agreement?
The judge said the class proceedings are needed because
the retirees are no longer members of the CAW locals. They are not
necessarily bound legally by what the CAW
signs with GM. Therefore, the class action is needed legally to bind
the retirees to the HCT settlement agreement. If the judge certifies
the class action and approves the
agreement, which he did the following day, then the retirees are bound
by it as members of the retiree class unless they opt out. The judge
did not answer the question on
opting out but in his "Reasons" approving the settlement he wrote that
GM has the right to do whatever it wants, "GM Canada retains
a right to void the settlement
if the number of opt-outs exceeds a number determined by GM Canada in
its absolute discretion (vis. 100 opt-outs). This condition can be
waived by GM Canada."
The retiree, referring to the HCT as a Health Fraud
Trust, requested the judge to declare illegal the agreement reached
between GM, the CAW and the retiree defendants.
First, he said, the HCT was imposed by the Harper minority government
in collusion with GM, and then through collusion between GM and the
CAW leadership. That
collusion, he said, extends to the Rae Ontario Government granting GM a
pension holiday in the 1990s. Secondly, the retirees were not consulted
and notified properly and
they are not represented in this case. He said that the retiree
defendants who signed the agreement to settle the class action were
nominated by the CAW leadership and not
elected by the retirees. He detailed the issue of representation of the
retirees pointing out that the retirees did not elect those people to
represent them in this case and that
the majority of retirees were not informed or properly notified of what
was going on.
The retiree said that the settlement agreement is also a
violation of the Charter of Rights
and Freedoms. He asked the judge to
declare the agreement illegal, but if he
refuses and declares it legal, to at least rule that the HCT must be
fully funded.
The GM lawyer replied that if less than 100 people opt
out of the agreement, the agreement is implemented and these people are
out and therefore GM will stop paying
their health care benefits. If more than 100 people opt out, then we
are back to the adversarial litigation and GM will assert its right to
stop paying the health care benefits
of all its retirees. The GM lawyer said that according to his knowledge
the retiree defendants who took part in the negotiations that led to
the agreement on the establishment
of the HCT were approved by the GM retirees' chapters. He said nothing
on the allegation that most retirees had not been informed and had no
say in the matter.
The judge intervened to "explain" why it was likely that
most retirees knew nothing of the case until now. He said that a class
action lawsuit is not a democratic process
but a judicial process. It is typical, he said, that in a class action
proceeding, the class members are not informed of the content of the
class action until it is before the Court
to be certified as a class action. There is no issue, he said, that the
people named in the class action as representative of the class members
be elected or are representative
of the class members. It is the work of the lawyers and the judge to
make sure that the class members are treated with fairness and dignity
in the process.
The second retiree to speak opposed the fact that the
trustees in the HCT are going to be paid $25,000 a year to sit on the
Board. She said certain people talk about
defending the people but maneuver to put themselves on a Board for
$25,000 a year while the retirees' benefits are cut. This is a slap in
the face of the retirees, she said.
Many retirees have health care benefits that are critical for them, she
said, referring to oxygen treatments that her husband has to go
through. She asked that since the benefits
are going to be cut by at least 20 per cent, how is it going to be
decided what
will be cut and what will not be cut; who will decide; will there be
negotiations with retirees etc.
She concluded by saying that it is false to say that the retirees are
represented, as the GM lawyer asserts, or have been consulted in this
process. The retirees were not even
informed of the content of the agreement before it was signed by the
parties involved in the class proceedings. She said that, as a GM
retiree, she and her fellow retirees
have a legal contract that spells out the amount of health care
benefits they are entitled to and nowhere in that contract is it
mentioned that those benefits are renegotiable.
The GM lawyer replied in a manner that scandalized most
people present. He said he was happy to be able to bring some comfort
to the retiree who just spoke because
the agreement says that for the first 180 days following the approval
of the agreement by the Court the retirees will receive 100 per cent of
their
benefits. After 180 days, alterations
to the current state of the benefits will start and the trustees will
be the ones who decide what those changes will be.
The Judge added in a condescending manner that "the HCT
is better than nothing" and that indeed the status quo will hold for
the first 180 days, that GM will immediately
put $800 to $900 million in the trust and that the actuaries are
estimating
that about 80 per cent of the benefits will continue to be paid "if the
subsequent payments from the promissory
notes are made." If those notes are not honoured then more than 20 per
cent of
the benefits will be discontinued. He said his understanding is that
the trustees are open to "some
sort of consultation" with the retirees before they make any decisions
as to how the cuts will take place.
The CAW lawyer intervened to say that the CAW trustees
would not be paid for being trustees, that only the people who are
sitting as independent trustees will be
paid.
On this issue a representative of the Workers' Centre,
who is a lawyer, asked the CAW lawyer on what he was basing his
statement that the CAW trustees would not
be paid. The CAW lawyer said he could not present any proof of this
assertion. Speculation arose that the CAW-appointed trustees are
considered non-CAW (i.e., independents)
if they are not receiving a CAW salary, and therefore would be entitled
to the annual $25,000.
A third retiree intervened to ask once again what would
happen to the benefits of the people who opt out of the agreement.
The judge replied that, according to his understanding,
if
more than 100 people opt out of the agreement then GM claims the right
not to go ahead with the agreement
and to stop the payment of the health care benefits to all retirees. He
said that if less than 100 people opt out, these people are not part of
the agreement and they will not
receive health care benefits.
Again it must be noted that this issue was not clarified
in the judge's decision. In the class action lawsuit against the
federal government and those churches involved
in taking First Nations' children away from their families and
communities and putting them in "Residential Schools," the decision
specified a definite threshold of 5,000
people opting out to void the settlement. The GM lawsuit is quite
different in that the persons who want "to unilaterally terminate" a
legal contract are the ones who have
brought the lawsuit against retirees, who have been blindsided by this
action and want their rights and contract upheld by GM, the governments
and courts. They want their
rights upheld when they opt out, which means they should continue
receiving health care benefits until the retirees and GM mutually agree
to a new arrangement.
A fourth retiree again asked why a court case was
necessary to decide to unilaterally terminate their health care
benefits when this issue has already been decided in an
agreement between GM and the CAW.
The judge in his reply seemed to confirm suspicions that
this was merely a show trial and a foregone conclusion that the
settlement would be approved, but that the court
had at least to appear to give the process some legal authority. To
justify the court proceedings, the judge said his decision would take
into account what the parties will
do and the consequences, if he does not approve the agreement. He made
a distinction between the merit per
se of the class action and
agreement, and the consequences
of his ruling. His words implied that the alternative to not approving
the agreement was bad for the retirees and he was doing them a favour
by agreeing with the
settlement.
The retiree who spoke first intervened again to demand
access to all the information surrounding the case, including the way
in
which the settlement was reached. How
could the retirees come to a conclusion that favours their interests
when they are not properly informed.
The judge dismissed his question saying that a lot of
information was available on the internet and that the retirees have
access to it.
An investigation of the Internet site for the class
action shows that only the conclusions are available, such as the draft
settlement and the decisions and announcements
of the court.
The judge raised what he called a technical issue, which
is to make sure that the Court is informed as quickly as possible of
the decision of GM regarding the settlement,
if the judge approves it and there are more than 100 people who opt
out. The GM lawyer said that GM would make sure that the Court is
informed as quickly as possible
as to how GM decides to proceed if those who opt out exceed 100.
A representative of the Workers' Centre had a
conversation with the retirees who spoke against the agreement and the
legalized theft of their contracted health care
benefits. In the conversation, the retirees said many of them agreed to
early retirement under what now seems a hoax of making room for young
workers. They sincerely
felt that their contracted pension and post-employment benefits with GM
were a deal with both the CAW and GM in exchange for retiring earlier
and losing a lot of income
from not working longer. The exchange meant that they would enjoy good
health care benefits for life and not fall into poverty. They said they
did what the union asked
them to do and now they are told that these benefits are being cut.
They said that GM executive managers have always used
blackmail against GM workers, whether active or retired, so why all the
panic now with the signing of this unjust
agreement. GM is blackmailing the workers that it will close the plants
and is using that to pressure us not to resist its unilateral
termination of our health care benefits, they noted. When
you give in to blackmail it never stops, they said. This lawsuit, they
pointed out, is a
sign that GM is on a rampage once again and is preparing to attack all
its workers so everybody should
be together in opposition and not cave in to the blackmail.
September 24, 2011 Bulletin • Return to Index • Write to: editor@cpcml.ca
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