Aristotle once wrote, “How many a dispute could have been deflated into a single paragraph if the disputants had dared to define their terms.”
After an embattled 2022 fishing season, with accusations flying like ocean spray in the wind, the Newfoundland and Labrador government did make an attempt to define the possible causes of this year’s harvester/processor disputes in the fishery.
On July 21, N.L. Labour Minister Bernard Davis announced an independent review of the collective bargaining model contained in sections 19.1–19.14 of the Fishing Industry Collective Bargaining Act. David Conway, former chair of the Labour Relations Board, was appointed to undertake the review.
This year, N.L. harvesters (represented by the FFAW-Unifor) and processors (represented by the Association of Seafood Producers [ASP]) have been at odds over snow crab and Northern shrimp prices, leading to public protests and refusals to buy product. Under the current model, strikes or lockouts are prohibited and decisions by the Standing Fish Price Setting Panel on prices are binding, meaning prices are not voted on by the fleets.
On October 14, Minister Davis released the results of Conway’s review into what many feel is a flawed and inadequate fishing industry collective bargaining model, as outlined in the Fishing Industry Collective Bargaining Act.
The report, entitled Fishing Industry Collective Bargaining Model: Past, Present and Future, included about 20 recommendations, that government said it is now reviewing.
N.L. Fisheries Minister Derrick Bragg said, “I am pleased to see the report from the independent reviewer and I appreciate his timely response. I look forward to advancing towards a more orderly fishery in Newfoundland and Labrador.”
Ironically, earlier this year, Bragg made headlines when he announced additional crab licences for processing operations in St. Mary’s and Argentia, actually overruling the recommendation of the province’s Fish Processing Licensing Board.
Regarding Conway’s recommendations, it would be a safe bet that few had overly high expectations that radical suggestions would be coming. Many naysayers stated that the only reason government called the review in the first place was to demonstrate that it had least tried something — but in the end, had very low expectations for change.
Not surprising to anyone, Conway recommended that the current collective bargaining model be maintained, with changes, until such time as there is stakeholder support for a viable alternative collective bargaining model. He added that in any future alternative collective bargaining model, the prohibition on strikes and lockouts should be maintained.
However, Conway did make some suggestions that actually might help the tangly task of setting N.L. fish prices each year.
He said the Standing Fish Price-Setting Panel should be maintained as a three-person panel, but with the following changes:
- The three-person Panel should be made up of one processor representative, one harvester representative and one independent neutral chair, with the chair being appointed by Government, but the representatives appointed by the respective parties to collective bargaining.
- There should be alternate processor and harvester representatives and at least two vice-chairs who can act in rotation in making decisions along with the regular Panel members.
- The chair and the vice-chairs should be individuals with a strong background in labour relations and labour adjudication, potentially chosen from among the Roster of Arbitrators for the Province.
- The parties should be able to mutually agree to a chair only or a vice-chair only Panel hearing in which the chair or vice-chair makes a binding arbitration decision in accordance with the Act for a fish species without any processor or harvester representatives on the Panel.
- The Panel should be provided with access to an accounting firm or a certified professional accountant, as needed, in order to better understand, evaluate and potentially verify any market or pricing information from the parties.
Given the current level of mistrust between harvesters and processors, this move could be a step in the right direction.
Conway also recommended that final offer selection be maintained in the collective bargaining model but that the Panel be permitted, in its discretion, to reject both final offers and require the parties to continue to bargain for a limited period of time before submitting further final offers. Also, the Panel should also be able to impose a final price based upon a joint final offer selection request from the parties.
Currently the Panel’s hands are tied as it is forced to pick one offer or the other. At least this recommendation allows the Panel to send the negotiating parties back to the drawing board.
Another good recommendation involves an “exceptional circumstances” or “force majeure” clause be added to the Act and regulations, in addition to the single reconsideration, in order to potentially revisit an existing pricing decision.
“The criteria for granting an “exceptional circumstances” or “force majeure” adjustment to prices would be high. Exceptional unforeseen economic or other circumstances that have significantly affected pricing (or something akin to that concept), should form the basis for granting this type of adjustment. A party should be limited in the number of these types of requests that it brings for a fish species in a season. It is recommended that the decision to grant an “exceptional circumstances” or “force majeure” hearing should be at the discretion of the chair or, if the chair is unable to act, a vice-chair. If such a hearing is granted, then that matter will normally be decided by the Panel that previously decided the pricing. If the request for such a hearing is denied by the chair or vice-chair then that matter is thereby rejected,” the report reads.
Another positive recommendation from Conway involved annual snow crab pricing, in an effort to avert the almost guaranteed racket that erupts each spring.
He suggested government facilitate discussions and negotiations by the parties towards a pricing formula for the snow crab fishery. Any eventual formula would have to be agreed upon by the parties with or without the involvement of the Panel.
In a proactive move, Conway also recommended that snow crab pricing formula discussions and negotiations commence in October or November of 2022, in order to conclude before the start of the 2023 season.
“An individual with experience in labour relations conciliation and fishing industry negotiations should be appointed by government to facilitate these negotiations.”
While the recommendations contained in Conway’s report are positive and if implemented, could effect change, an industry panacea this is not.
While the FFAW-Unifor and ASP acknowledged the report is a step in the right direction, they both highlighted outstanding issues that remain.
“Increasing corporate control and a lack of competition in the industry continues to threaten the owner-operator, inshore fishery in Newfoundland and Labrador. Ensuring ASP and their members commit to meaningful negotiations during the collective bargaining process will be paramount to the industry’s future success,” said FFAW-Unifor President Keith Sullivan.
ASP executive director Derek Butler said the review report was well-written and that he and his members will be reading it very closely in the days ahead. But he remained skeptical whether it would have addressed the challenges in 2022.
“As we said when the review was announced, 2022 is going to be the best year on record for harvesters in crab, our main species. But it is the worst for producers. On top of that, we had delayed shrimp, delayed sea cucumber and no northeast coast capelin fishery. These are all consequences of the model. It requires a more substantive look. We think what is needed is a larger review into the whole collective bargaining model, and I think that has support among processors and harvesters. This review process was not at that level, but for what it covered, we participated, we appreciated the initiative and we look forward to future engagement with the province and stakeholders on some of the things that were recommended, some of which can work, and perhaps others not.”
All hands will now be sitting around their Christmas trees, anxiously waiting to see what the provincial government will do with this, yet another report penned to assist the tumultuous N.L. fishery.
