Fishermen: whose jurisdiction?
By JACK NICHOL
FOLLOWING 18 days of argument, the British Columbia Court of Appeal has reserved judgment on the UFAWU appeal from the decision handed down on July 31 last year by Supreme Court Justice Mr. Gordon Rae, whose reasons pose serious consequences for the rights of fishermen to organize, bargain collectively and strike for share and price agreements.
The lower court awarded a number of Prince Rupert trawl vessel owners $108,000 in damages and undetermined costs in the lawsuit arising out of the 1967 coastwide strike of trawl fishermen.
The appeal court's ruling could be deferred for several months because of the complex issues of law and fact argued.
Central issue in the appeal is the finding of the Supreme Court that the UFAWU was guilty of conduct prohibited by the B.C. Trade Unions Act. Mr. Justice Rae declared the UFAWU to be a trade union within the meaning of that act, invoked its punitive provisions and denied the union its protective features.
The Trade Unions Act em-.bodies the Social Credit government's infamous Bill 43 which stripped unions of immunity they had held for half a century and established them as legal entities subject to damage suits arising from unlawful acts committed during the course of a strike.
The UFAWU in its appeal challenged the applicability of a provincial statute to a strike of fishermen which, it contended, came within federal jurisdiction. Counsel appearing for the attorney general of Canada argued that labor relations in a fishing industry involve regulation of a fishery and therefore jurisdiction is conferred on the federal government by the British North America Act.
This view was generally unopposed by counsel acting for the attorney general of B.C. who argued simply that the Trade Unions Act legislates in the field of property and civil rights, which constitutionally are provincial fields of jurisdiction.
The Trade Unions Act states "where there is a strike that is not illegal under the Labor Relations Act" — a provincial statute — then a trade union may picket and otherwise conduct its strike provided other unlawful acts are not committed. Outside of this protective feature, trade unions "or any other person" may be liable for damages from actions prohibited by the act, by other legislation and at common law.
UFAWU STAND
The UFAWU maintains that the Labor Relations Act is not relevant to fishermen and strikes of fishermen can be neither legal nor illegal under its terms. Federal statutes, if any, would apply but serious doubt exists whether fishermen can comply with any labor statute while the courts and legislators hold, as they have, that fishermen employed on a share basis are "co-adventurers" and not "employees" as defined and required by the legislation.
Many unions operating in B.C. bargain collectively and frequently strike under the provisions of the Industrial Relations and Disputes Investigations Act, the federal labor relations statute. Their strikes are "not illegal" under the provincial Labor Relations Act, which has no application whatsoever to such strikes. Strikes   conducted   by, for
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example, the International Longshoremen's and Warehousemen's Union and the Canadian Merchant Service Guild are perfectly legal but these unions have apparently had their strike conduct regulated by the B.C. Trade Unions Act, of which there is no federal equivalent.
Both the ILWU and the CMSG have had members jailed and been heavily fined for actions prohibited by injunctions issued for reasons permitted by the Trade Unions Act.
The UFAWU position on the constitutional question is a direct challenge of the provincial government's adoption of this jurisdiction and extremely important consequences for federally regulated unions depend upon the decision of the B.C. Court of Appeal or the Supreme Court of Canada.
Under pressure of publicity stemming from the strike of trawl fishermen in Nova Scotia, the Liberal government of Premier Gerald Regan, following its defeat of the Conservatives at the polls, rushed through the legislature amendments to labor legislation to include fishermen within its framework. Fishermen, at last, were able to organize into unions and obtain certificates of bargaining authority to define their organizational jurisdiction.
Reportedly, Newfoundland has enacted similar legislation, although no details are available.
Ironically, a court ruling to the effect that labor relations in a fishery are a federal respon-sbility would nullify the inclusion of fishermen within provincial labor legislation.Until the courts decide where jurisdiction lies, provincial legislation must always be in jeopardy.
Final determination of this disputed question is ultimately in the best interests of fishermen and the unions representing them. It would end the government buck-passing that has characterized fishermen's disputes and the reluctance or outright refusal of either a provincial or federal government to accept the jurisdiction.
CHANGE NEEDED
Arbitration of the 1963 B.C. salmon price dispute is a classic example of respective governments disclaiming jurisdiction, particularly when the salmon fishermen resumed fishing, culminating in a joint federal-provincial committee to determine ways and means of minimizing the effects of strikes and lockouts in the fishing industry.
Later the povincial government withdrew a proposal to repeal section 25 of the B.C.
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4 THE FISHERMAN — JANUARY 21, 1972
Constitutional issue posed by UFAWU court appeal
Fisheries Act which provides for arbitration of fishermen's disputes but refused to liberalize the legislation in the manner urged by the UFAWU.
Now the federal government shows signs of moving into the 20th century by amending the federal labor code to include fishermen but this is limited to fishermen employed by someone else. Federal certificates — and the UFAWU submits this is the proper jurisdiction — may soon be possible but to the exclusion of self-employed fishermen, gillnetters, trollers and the like.
Next month a UFAWU delegation will lobby MPs for inclusion of all fishermen in federal labor legislation.
Changes in legislation will not affect decisions in the UFAWU appeal, but they could prevent lawsuits, and the resultant financial strangulation of union organization, in future strikes.
Mr. Justice Rae's finding under the Trade Unions Act, important as it is, is not the only basis of appeal. He also found that "in any event they (the defendants) are also liable in tort under the common law."
CONTRACT ISSUE
One tort, or civil wrong, by which liability was established is "procurement of breach of contract."
The contracts referred to are the marketing agreements allegedly made between the vessel owners and the shore plants. The court found, and this finding is attacked on appeal, that by persuading shoreworkers not to handle fish caught by, and provide services to, the plaintiffs (vessel owners) the union induced a breach of contract and was liable for damages.
Under the common law this is the very foundation of the vessel owners' case. Yet the only document purported to be a "marketing contract" produced in evidence is an indenture of mortgage made between Alfred Ritchie and Canadian Fishing Company. In any event, Ritchie delivered his trawl production to Atlin Fisheries Ltd., and not the Canadian Fishing Company.
If marketing contracts existed, surely each owner would have produced his to support a claim
for damages. Common law requires knowledge of the existence of a contract — where a breach thereof is unlawfully induced — although not of its precise terms.
Mr. Justice Rae decided that the defendants ". . . had sufficient knowledge (of the contracts) that it may properly be said they knowingly procured a breach." This finding is attacked on the grounds of failure of the owners to produce their contracts, which the union doubts ever existed and therefore prior knowledge of their existence could not logically have been established.
A sample copy of a Prince Rupert Fishermen's Co-op marketing agreement produced in evidence and attested to by most vessel owners as their form of contract, fails to impose an obligation on the shore plants to unload fish and provide services such as ice, bait and the like.
A breach of contract by shoreworkers refusing these services does not necessarily follow, the union argued, even if the shoreworkers were persuaded to do so. Moreover, collective agreements covering most Co-op shore operations contained a clause protecting against a breach of the collective agreements for refusal to handle unfair goods.
MOTIVE DEFINED
There is no denial of the fact that the UFAWU declared the plaintiffs' vessels and catches unfair or that shoreworker members were persuaded to refuse to process the catches and service the vessels.
Shoreworkers, it was argued, had the contractural right to withhold their labor although at no time were they guilty of an unlawful strike.
"Fishermen," stated union counsel, "possessed the right to strike despite the lack of compliance or attempt to comply, with any relevant statute. Trawl members of the UFAWU wilfully intended to inflict economic harm on the vessel owners to force them to the bargaining table to gain a satisfactory share agreement. And at common law the union had the right to do so by virtue of the overwhelming
H. O'SHAUGHNESSY
Forum will discuss issue of equal pay
HTHE far from realized prin-■*■ ciples of equal pay for equal work and equality of job opportunity will provide the theme for an open forum to be held by the Vancouver Status of Women Action and Coordinating Council at 517 East Broadway at 8 p.m. on January 31.
At a conference held shortly after the release of the royal commission's recommendations on the status of women, priorities were established and more than 300 women from many organizations felt that equality of pay and job opportunities and establishment of child care centres were the most pressing issues.
Former UFAWU vice-president and organizer Mickey Beagle, who wrote the only trade union brief presented to commission hearings in this province, is chairman of the equal pay and equal job opportunity committee. Aware of the unequal wage scales for women in the fishing industry, she has campaigned consistently for the passage of effective equal pay legislation.
Each year the gap in wages between women and men in the fishing industry widens even if the percentage increase is the same. Last year's percentage increase was the same for both men and women, but, applied to the lower rates for women, it produces less money.
This year cannery women will get an increase which is three cents an hour less than men. Fresh fish women will receive an increase six cents an hour below the increase paid to men. The 1972 base rate for fresh fish women will be $2.89 an hour; for men it will be $3.87 an hour.
At the same time as women are being paid lower wages, more is being demanded of them on the job —conveyor belt and machine speedup, "psychological whip" production weight tallies, replacing men.
The need to change this situation is apparent. A place to begin is at this forum, where the facts can be presented and examined and a plan for action drawn up.
majority of UFAWU members employed on trawlers coastwide, including Prince Rupert trawl vessels, and the solid coastwide strike vote by trawl fishermen."
Actions to secure a coastwide trawl agreement to govern conditions of employment and shares, and to provide welfare plan and workmen's compensation coverage, were an attempt to advance the interests of the union's membership. This aim must absolve the union of guilt under the tort of conspiracy and while Mr. Justice Rae found it "unnecessary to enter into this question" — because of his other conclusions — the appeal court could decide liability on this ground.
Common law seems to hold to the proposition: "If the real purpose of the combination is, not to injure another, but to forward or defend the trade of those who enter into it, then no wrong is committed and no action will lie, although damage to another ensues." Unlawful means, of course, must not be employed and the union denies such was the case.
Certainly the UFAWU objective was to "forward or defend the trade" and claims by counsel for the vessel owners that the union only sought to expand its membership and increase its dues revenue are ludicrous in the extreme.
Most trawl fishermen were, prior to the strike, dues paying members of the UFAWU and when employed in other fisheries they were covered by union agreements. Why not in the trawl fishery?
Coastwide organization of trawlers has hardly proved "lucrative" to the union as claimed in view of the heavy costs incurred by the strike. The majority of trawl fishermen in B.C. as a result are now covered by contracts, the real purpose of the 1967 trawl dispute.
OTHER GROUNDS
Many other matters of law and fact are involved in the dispute. The common law torts of defamation, nuisance and intimidation are at issue, although there was no finding on these by the lower court.
The conduct of the union during the strike, proof of a membership majority, and a host of other issues together or separately, could decide the appeal.
Only the judgement will tell the merit of UFAWU arguments and decide the rights of fishermen to form unions for their own protection at least until an enlightened government enacts intelligent legislation giving all fishermen rights equal to those of other workers.
All this is part of the mass of evidence referred to the appeal court quorum comprised of Chief Justice Davey and Justices Robertson and MacLean, in the appeal books which ran to 13 volumes.
More than 300 exhibits were before the court and numerous authorities were cited on the many points of law argued, the latter photocopied and prepared in bound volumes for convenience.
Appellants are the UFAWU and its officers along with a number of individual members.
Respondents and their vessels are Mark Fishing Co. Ltd., (White Swan, Victor F), Bush Cook and McAdams Fishing Ltd. (B.C. Mac), Clyde Raymond Smith (Zapora), Ralph Lewis Deinstadt (Northern Breeze), Peter Mark (Five Princess), Milton Clarence Bush and Charles Edward MacAdams (B.C. Mac), Ritchie Fishing Co. Ltd. (Miss Terri), David Alfred Ritchie and Arne Morris Paulsen (Miss Barbi), and Viggo Mark (White Swan and Victor F).