Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Fiji (Ratification: 1974)

The Committee notes the Government’s report as well as its reply to the comments by the International Trade Union Confederation (ITUC). It also notes the latest comments by the ITUC dated 27 August 2007 with regard to violations of the Convention in 2006 and requests the Government to send its observations on this issue.

The Committee notes the text of the Employment Relations Act No. 36 of 2007 (ERA) which came into effect on 1 October 2007 and repealed the Trade Unions Act, the Trade Disputes Act, the Trade Unions (Recognition) Act, the Wages Councils Act and the Employment Act (section 265 of the Employment Relations Act).

Article 1 of the Convention. Protection against anti-union discrimination. The Committee recalls that its previous comments concerned the need to ensure adequate protection against anti-union discrimination in the new legislation. The Committee notes that according to the ITUC, to date, not a single employer has been prosecuted despite numerous cases reported to the Ministry each year about victimization of workers who show any inclination to join a union; moreover, the courts have usually taken the position that reinstatement is not the remedy when employers interfere in union activities. The Committee notes with satisfaction from the Government’s reply and the text of the ERA, that section 77 contains a comprehensive prohibition of acts of anti-union discrimination for all types of trade union activity, at all stages of the employment relationship, including recruitment. Part 13 provides for a redress system to address unfair dismissals. Part 20 allows trade unions to raise grievances through mediation services, the Employment Relations Tribunal and the Employment Relations Court. The Tribunal and Court have under section 230 the power to order remedies including reinstatement, reimbursement and/or compensation for humiliation, loss of benefit or loss of property. 

Article 2. Protection against acts of interference. The Committee’s previous comments concerned the need to introduce adequate protection, including sufficiently rapid machinery and dissuasive sanctions, against acts of interference by employers or their organizations into workers’ organizations and vice versa. The Committee notes with satisfaction that protection is envisaged in section 125(1)(f) of the ERA as well as section 4 (definition of “duress” and “employment grievance”) in conjunction with Part 20 of the ERA on the redress machinery which may be triggered in case of trade union grievances relative to acts of interference.

Article 4. Promotion of collective bargaining. 1. The Committee notes that the ITUC refers to: difficulties faced by minority unions in obtaining recognition for collective bargaining purposes, as such recognition is mandatory only for unions with absolute majority in the unit; and difficulties in concluding collective agreements in EPZs. The Committee notes with satisfaction that according to the Government, the ERA removed the absolute majority requirement for recognition so as to establish a duty to negotiate regardless of whether the union represents the absolute majority of workers in the unit, including in EPZs.

2. The Committee notes that the ITUC referred to a case of denial of access to a workplace by trade union representatives. The Committee notes with satisfaction that section 145 of the ERA (2007) now provides access to workplaces to trade union representatives with the consent of the employer which shall not be withheld unreasonably, in order to discuss union business with members, recruit members or provide information on the union and union membership to any worker on the premises.

Articles 1 and 4. With regard to its previous comments on the dispute in the Vatukoula Mining Company (refusal to recognize a union and dismissal of striking workers 15 years ago), the Committee, noting that the Government has not provided any information in this regard, once again requests the Government to give consideration to the recommendation of the Senate Select Committee for assistance to help the remaining workers re-establish themselves.

The Committee addresses a request on another point directly to the Government.