FFAW Opinion on the Imposition of Trip Limits and Scheduling in the Crab Fishery

We have heard from many crab harvesters this past week regarding trip limits that have been unilaterally imposed by processing companies in the snow crab fishery. As a result, harvesters with modest snow crab quotas are being required to go out on trip after trip to land crab in an uneconomical manner. This is also unsafe, as it requires more time on the water than is necessary and the ocean is both unpredictable and unforgiving when the weather turns foul.

Meanwhile, companies are importing product from other provinces for processing here while imposing unreasonable limits on NL vessels. It’s reprehensible on behalf of the processing companies and should be remedied through the Master Collective Agreement, as well as through tools available to the provincial government.

FFAW has requested on countless occasions to increase the number of processing licenses in the province. Additional licenses will create desperately needed competition in the sector and provide harvesters with more options for selling their catch.  Opening our province up to outside buyers will also allow harvesters land their product in a much more efficient, economical, and safe manner. We continue to call on Premier Andrew Furey to listen to the thousands of fish harvesters being treated unjustly by processing companies.

FFAW has consulted with legal counsel on the issue of trip limits as it pertains to the Master Collective Agreement. Below is a summary of counsel’s perspective.

PER THE COLLECTIVE AGREEMENT:

There is a crab schedule that has existed for many years and is periodically updated by the parties. For the most part, it has remained unchanged for the past 6 years and is simply rolled over every year. The crab schedule is explicitly stated to be part of the Master Collective Agreement that governs harvester-processor rights for all commercial fisheries negotiated by your Union.

In section 9 of the crab schedule, trip limits are set forth on a per-fleet basis. Under that section there are specific trip limits designated for:

• 2J: 45,000 lbs per trip in May; 25,000 lbs single enterprise June to the end of Season.
• 3K: 45,000 per trip May 1 to May 14; 40,000 lbs single enterprise May 15 to end of season
• 3LNO Fulltime and Large Supplementary: 39,000 lbs for May 1-31; 45,000 lbs from June 1 to the end of season.
• 3Ps: 25,000 lbs May 1 to end of season.
• For April, there is a 75,000 lbs trip limit.

In reviewing the trip limits in the schedule, the only limits that currently exist in 2J, 3K, and 3Ps for May are at least 25,000 lbs per trip. Thus, processor-imposed trip limits in any of these areas that are below these thresholds could not be enforced.

In 3L, the only trip limits listed are for the fulltime and supplementary fleets. The under 40’ fleet is excluded.

A collective agreement is prescriptive, meaning all the rights and obligations of the parties are set out in the agreement. Therefore, if the agreement is silent on an issue, one side cannot simply determine how to address that issue. Instead, the issue must be collectively bargained.

Thus, processors cannot impose a trip limit on the under 40’ fleet in 3L. That must be negotiated. Any trip limit imposed could not be enforced.

Our remedies for the trip limits currently being imposed are also prescribed by collective agreement. If the processors were imposing trip limits to force a change of price, we could seek an injunction. This would be a difficult case to make right now since there are still vessels that are landing crab and the price applies to all fleets.

Our other remedy is to file a grievance, which we can do on behalf of all harvesters or in the name of one or a few. However, to do so, there needs to be an actual breach of the collective agreement. This means that a harvester must try to land more than the imposed trip limit and then have the processor refuse to purchase more than the imposed trip limit. That would be a breach of the collective agreement and we would grieve that immediately, as it is a critical issue in the fishery.

If the processor does buy all the crab landed, then the trip limit will be proven to be toothless and unenforceable. A trip limit cannot be arbitrarily imposed against some harvesters and not against others. The purpose of the collective agreement is to apply the same basic rules to all.

In the Master Collective Agreement, there is article 8 which, “for the purpose of the efficiency and compliance with statutory obligations, a Processor has the right to make reasonable rules and regulations not inconsistent with this agreement.” We think that the current trip limits would not be covered by article 8 as the collective agreement already sets forth trip limits and addresses that issue.

There are different considerations with scheduling. With reference to section 8, the processor has the right to make reasonable rules. The key word is “reasonable” and that needs to be assessed in the context of the fishery. Is it reasonable to show preference for landings from one fleet and not another? Is it reasonable for some harvesters to be tied to the wharf for extended periods of time? There are no clear answers to these questions but they need to be addressed.

As well, the second part of article 8 reads, “The Processors shall advise the Union prior to the institution of any change in the Processor’s rules and regulations affecting relations with the fishers in the bargaining unit.” This notice was not provided to the Union on scheduling and it should have been.

In summary, we do not believe that the trip limits currently imposed on the under 40’ fleet are enforceable. As for scheduling, it is a grey area that needs more clarity.

We are interested in addressing these challenges through the grievance procedure. But first we need someone to be formerly aggrieved. That is something we will have to address in the coming days.