Okanagan College faculty aim to prove the termination of benefits at 65 is discriminatory

Is it discrimination?

An eight-year long fight between Okanagan College and its faculty association over benefits for senior staff is dragging on, with the union seeking to set a precedent that could impact collective agreements across B.C.

Back in 2008, the BC Human Rights Code was amended to outlaw mandatory retirement ages. But for faculty at Okanagan College, benefits for life insurance and long term disability continued to terminate at age 65, under policies purchased by the school.

The union argues that has resulted in college instructors over the now-arbitrary age of 65 receiving fewer benefits than less-experienced colleagues, despite having more knowledge in their field.

“The nature of our work, we become more and more and more useful, to be honest, with age, much more skilled,” Okanagan College Faculty Association President Sharon Mansiere told Castanet on Friday.

In 2013 the faculty association filed a grievance over the policy, opening a labour fight nobody expected would last a decade. The Attorney General of B.C. intervened in the case on behalf of the school.

Last year the two sides agreed to break the complex labour dispute into two stages of hearings with the understanding that if the first stage succeeded the second would not be necessary.

Earlier this month an arbitrator ruled against the union in the first phase of the dispute that focused on the wording of the collective agreement, setting the stage for a larger battle next year that will see the policy challenged under the assertion that it violates Canada’s Charter and B.C.’s Human Rights Code in the form of age discrimination.

The union failed to convince arbitrator Arne Peltz that the language in the collective agreement promised benefits to “all employees.” Peltz noted that fixed-term employees were not eligible for benefits and ruled the language of the agreement is “more exclusionary than declarative.”

“I'm disappointed that we have to go to the second stage. And yet, I'm thinking it's very principled,” Mansiere told Castanet.

“If people are are working and the retirement age changes, there should be a mechanism somewhere, by the employer or by the government, by somebody, that doesn't subject them to discrimination.”

Mansiere says the Okanagan College Faculty Association has about 350 members, a relatively small union to be taking on the unlimited legal resources of the provincial government.

She says just five per cent of Okanagan College faculty members are over the age of 65, meaning the cost to provide benefits to those employees should be manageable.

“The sum total hours of legal counsel that have been devoted to this project… versus what they would have to pay for our union, or potentially any other post-secondary union — we probably wouldn’t get anywhere near that sum.”

Evidence from the hearing shows the majority of long-term disability plans in Canada terminate at 65. Manulife quoted premium increases of 37% for a plan that terminated at 70.

For life insurance, 11% of plans in Canada terminate at 65, 49% terminate at age 70 and 26% have no termination age. Employer premiums would rise by 49% with no termination age, an increase of $45,000 in annual premiums.

Other types of benefits, like dental, extend past 65 already.

The union’s testimony included Dr. Michael Conlin, 75, a business administration instructor at the Kelowna campus.

He was not concerned about the loss in benefits at age 65 until a colleague suffered a sudden illness at age 67 and was forced to retire. He testified it was an “eye opener” for him.

“It dawned on him that he could continue working productively through his 60’s and 70’s, while a colleague across the hall received better compensation, solely due to their different ages,” said a summary of his testimony.

“Conlin emphasized that he still gets great teaching ratings. He mentors junior faculty. Since he turned 65, his involvement in departmental initiatives has only increased.”

While they launched the grievance in 2013, Mansiere says the pandemic has made the issue even more important. The instructors who are the most vulnerable to the virus are teaching in full-capacity classrooms with no fiscal safety net, beyond their pension and retirement, should they get seriously ill with COVID-19.

The Charter and Human Rights Code arguments will be made during a new set of hearings in fall 2022, with the arbitrator avoiding them in the first phase of the hearings. Mansiere says they have been told there are a handful of similar cases working their way through the system ahead of them, and if any are successful, it may make things easier for them.

Okanagan College and the provincial government argued at the hearings that the enhanced benefits requested by the union “cannot be called trivial” and are “administratively unfeasible.”

A consultants report tabled by the employer suggested that the removal of the age limitation on long-term-disability payments would “continue the disability payments for all disabilities for their lifetime.”

“This would be well beyond the expected period of employment earnings the LTD benefits are intended to replace. With the opportunity for a lifetime of disability benefits the incentive to find a way to return to work would be diminished,” the employers report continued.

Mansiere says the union accepts that there may not be as much choice in benefit plans for those over 65 as for those under.

“Them saying that there are none, or that the college will not seek any... we’re wishing they would be reasonable,” she said, suggesting the college could self insure, or, more options will be made available by insurers once there is a demand for them.

The consultants report, however, argued self-insuring the senior faculty would be “too significant” of a risk for a school the size of Okanagan College.

“Pay in lieu of benefits, yet another option mentioned by the Union, was never bargained and the Employer has no obligation to make such payments,” ruled arbitrator Arne Peltz earlier this month.

“Admittedly LTD could be extended to age 70 but this still constitutes an age limitation and would fail the Union’s test that ‘all employees’ must be covered. In the end, neither the Union nor the experts were able to advance a workable concept for LTD with no age limitation.”

Despite the lack of a "workable concept" for benefits over the age of 65, one will have to be found if the current policy is deemed age discriminatory. Those hearings scheduled for next fall will require "substantial additional evidence and argument."

But after eight-years spent on the grievance already, Mansiere says they are prepared to see it through to the end.

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