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Fishing Industry Collective Bargaining Act (FICBA) Review

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Fishing Industry Collective Bargaining Act (FICBA) Review

This article was originally published in the Winter 2022/2023 Union Forum Magazine, written by FFAW-Staff Member, Jake Rice, who is responsible for policy & price negotiations. Jake can be reached at jrice@ffaw.ca.

For the last two years, our Union has been asking the provincial government for a review of the Fish Price Setting Panel system and to grant each party with two price reconsiderations per species.  Finally, this July, the Minister Responsible for Labour initiated a review of the collective bargaining model.  The review was limited to sections 19.1 to 19.14 of the Fishing Industry Collective Bargaining Act, but these sections are an important part of the FICBA.

The review was led by Mr. David Conway, former Chair of the Labour Relations Board, and involved consultations with fish harvesters, processors, their respective organizations, and any other interested parties.  Written submissions were due September 9 followed by formal presentations on September 12.  Mr. Conway submitted his findings and recommendations to the Minister Responsible for Labour in early October.  His final report was made publicly available shortly thereafter.

FFAW met with Mr. Conway multiple times during the review process and presented our formal recommendations to Mr. Conway on September 12th.  FFAW’s submission on the Fishing Industry Collective Bargaining Act Review was detailed and comprehensive.  The submission focused on the invaluable feedback given by our members.  Below are some key takeaways from the Conway recommendations and the province’s response to the report.

The report included 20 recommendations, which are under review by provincial government and pasted at bottom.  While the review only covered sections 19.1-19.14, there are some key recommendations made by Mr. Conway that will impact FFAW membership.  At the time of writing, the province was submitting a bill to the House based on legislative changes surrounding the Panel membership and addition of a second reconsideration. In the coming months, FFAW, ASP, and the province will work through additional regulatory recommendations which would include greater transparency with market information.

The province has accepted and will be putting the following recommendations into a new bill, Bill 19: An Act To Amend The Fishing Industry Collective Bargaining Act .  The bill was read by the House on Nov. 1 and 2nd.  The changes below will be accepted during the current House session.

  • Modify the membership of the Standing Fish Price-Setting Panel
  • Require the prescribed certified bargaining agent to pay the remuneration and expenses of the members of the Standing Fish Price-Setting Panel who represent the prescribed certified bargaining agent;
  • Require the prescribed processors’ organization to pay the remuneration and expenses of the members of the Standing Fish Price-Setting Panel who represent the prescribed processors’ organization;
  • Allow the chairperson to make binding decisions without the other members of the Standing Fish Price-Setting Panel where requested by both the prescribed certified bargaining agent and the prescribed processors’ organization;
  • Allow the Standing Fish Price-Setting Panel to reconsider its decision where the criteria for reconsideration prescribed in the regulations are met;

The amendments to modify the Panel system in the new bill will include:

  • The modification of the Chair and Vice-Chair to be an independent labour arbitrator.

This is an important step by the province to assure that any Chair will remain fair and unbiased in their decision-making.  FFAW supports this move as it would remove any favoritism towards one party.  Both ASP and FFAW will have an opportunity to rank potential candidates for the Chair and Vice-Chair position before the province makes their final selections.

  • FFAW and ASP will formally nominate a Panel member and alternate to serve on the Panel.

This is similar to our current system except now, FFAW and ASP, will have official Panel members and alternate members.  Past Panels have been informal representatives of each party but now will be officially selected by FFAW and ASP.  This is a beneficial amendment to the Panel system as it ensures an independent Chair and formal representation for FFAW going forward.

  • FFAW and ASP must pay the expenses of their representatives while conducting official Panel duties.

This amendment is a significant change from the current system where the province pays all Panel expenses.  FFAW is not supportive of this change as it will lead to a significant inequity of costs. It is important to note that Mr. Conway did not recommend this; it was introduced by Minister Bernard Davis.  To say FFAW must alone pay for expenses while ASP can divide costs among its members is absolutely biased in favour of companies.  These fees are simply tax write-offs for ASP’s members.  However, these same costs passed onto FFAW will have significant impacts on our ability to service our members.  The costs passed onto FFAW by the province are unfair and out of line with the $1 billion+ dollars that the inshore fishery, processing workers, and IRO members contribute to the provincial economy every year.  The provincial government forcing inequitable costs on FFAW is an inexcusable action that clearly favours companies over FFAW.

The other major change from the FICBA review will be the addition of a second reconsideration.  While the criteria for this second reconsideration is not finalized, a second reconsideration is warranted given the market changes over the last three years.  A second reconsideration will allow fish prices paid to harvesters to better match current market prices.  FFAW continues to work with the province to ensure the criteria will be consistent with current requirements of significant market or currency changes.

Lastly, the province has incorporated a statutory review period of 5 years to ensure any changes made are revaluated.  This time period for review can be shortened in the event parties bring up issues to the Minister of Labour.  FFAW is cautiously optimistic the provincial government will implement reviews as needed going forward.

The changes mentioned here are only part of total changes to occur before next season.  These changes above only represent the legislative changes that will be passed in the current House session.  Additional regulatory changes and amendments from Mr. Conway’s recommendations will be worked through in the coming months.

While the changes made thus far are mostly favourable for FFAW members, there is still considerable work to be done to ensure greater transparency and fairness within next year’s fish price negotiations.  FFAW will continue to push for increased accountability from companies and the province.  FFAW is currently involved in additional meetings to push for greater change within the larger FICBA framework and will rely on member feedback to guide those efforts.  Members have been an invaluable asset in getting change made thus far and we will continue to fight with your help going forward.  More to update in the next Union Forum…

SUMMARY OF RECOMMENDATIONS

Periodic Reviews

It is recommended that the collective bargaining model under the Act be subject to reviews on a periodic basis. These reviews should include a review of the practices and procedures of the Standing Fish Price-Setting Panel.

Collective Bargaining Model

It is 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. In any future alternative collective bargaining model the prohibition on strikes and lockouts should be maintained.

Standing Fish Price-Setting Panel

It is recommended that the Standing Fish Price-Setting Panel 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; and
  • 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.
Final Offer Selection

It is 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. The Panel should also be able to impose a final price based upon a joint final offer selection request from the parties.

Reconsideration

It is recommended that the criteria for being granted a reconsideration under the Act and Regulations be kept the same, although removing the references to “jeopardy” or “jeopardize” is advisable, since those terms are not considered in practice.

It is recommended that 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.

Increased Focus on Negotiations

It is recommended that collective agreement negotiations revert to an in-person approach rather than an online approach, public health measures permitting.

It is recommended that the Panel consider using a Vice-Chair or use processor and harvester representatives to assist in negotiations at the discretion of the Chair. The Chair or Vice-Chair deciding a matter should not become directly involved in negotiations and should not become privy to any confidential discussions or confidential information concerning negotiations.

It is recommended that the Panel should, at its request, be made aware of the negotiating history of the parties leading up to the final offers at arbitration. This would not include any “without prejudice” offers between the parties or any prejudicial or confidential information.

It is recommended that the Panel resume facilitating in-person annual meetings to bring processor representatives, harvester representatives and their respective organizations together to meet and better understand the issues and challenges that they each are facing. This will allow for relationship building with respect to negotiations.

Pricing Formula for Snow Crab

It is recommended that 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.

It is 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.

Fishery Information and Market Risk/Exposure

It is recommended that the Panel determine the types of fishing industry information that is needed in order for the Panel to fulfil its mandate and to make decisions. The Panel should consider and decide the decision criteria that it should take into account in terms of levels of investment and the market/risk exposure of the parties. The foregoing can potentially be specified in the Panel’s Rules and Procedures or through the hearing process itself.

Practices and Procedures of the Panel

It is recommended that, at the request of the Panel, an individual with significant labour relations experience and knowledge of fishing industry collective bargaining, be assigned to work with the Panel on its practices and procedures.