Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

The Committee notes the comments made by the International Trade Union Confederation (ITUC) on 4 August 2011 denouncing severe restrictions on collective bargaining in the public sector and pressure on civil servants to choose between their job and their role in the trade union, and on 31 August 2011 focusing on the Essential National Industries (Employment) Decree 2011 (ENI). The Committee requests the Government to provide its observations thereon.

The Committee also notes the serious comments made by Education International (EI) dated 31 August 2011 concerning, inter alia, the suspension from the civil service of the President of the Fijian Teachers Association on the grounds of his public comments. Observing that the Committee on Freedom of Association has recommended his reinstatement in the framework of Case No. 2723, the Committee requests the Government to comply with this recommendation and to provide its observations on the remaining comments submitted by EI.

Article 1 of the Convention. Protection against acts of anti-union discrimination. With reference to the dispute in the Vatukoula Mining Company (concerning the refusal to recognize a union and the dismissal of striking workers 15 years ago), the Committee had previously taken note of the Government’s statement that there has been a change of ownership in the mines, that a significant number of these strikers have been employed by the new employer in the mines and that the Government has also provided those still unemployed with alternative means of livelihood through a small business scheme subsidized by the Government since the beginning of 2007. The Committee notes that the Government refers in its report to various measures with regard to the redundant miners of the Vatukoula Mining Company including the striking workers of the Fiji Mine Workers Union (FMWU), in particular important amounts of money granted for the purpose of rehabilitation or social assistance, training packages, re employment by the new owner, relocation of squatting miners and purchase of residential blocks at the expense of the Government, and establishment in 2010 of a multi-sectoral committee to discuss solutions to the issue. The Committee notes however the comments made by the FMWU dated 1 December 2009, 15 November 2010 and 22 August 2011, in particular that the information provided by the Government concerning inter alia the re-employment of many strikers and a subsidized business scheme for the unemployed is simply not true and that there has been no improvement in the situation. The Committee notes with concern the contradictory views of the Government and the FMWU, with progress being reported on the one hand and the deterioration of the situation being denounced on the other. The Committee requests the Government to provide its comments on the FMWU comments and to engage in exploratory talks with FMWU representatives with a view to reaching, without any further delay, a mutually satisfactory settlement for assistance to help the remaining workers re-establish themselves.

Article 4. Promotion of collective bargaining. The Committee notes that the ENI was promulgated on 29 July 2011, that the ITUC and EI severely criticize its provisions with respect to the Convention, and that the ENI has been submitted to the Committee on Freedom of Association in the framework of Case No. 2723.

Elected representatives. The Committee notes that Part 3 in conjunction with section 2 of the ENI seek to establish the role of representatives – union or not – as collective bargaining agents. The Committee understands that the term “representative” may include a union delegate or an elected workers’ representative. In this regard, it recalls that, where there exist in the same undertaking both trade union representatives and elected representatives, appropriate measures are to be taken to ensure that the existence of elected representatives is not used to undermine the position of the trade unions concerned. The Committee also recalls that direct negotiation between the undertaking and its employees, bypassing representative organizations where these exist, is detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted. The Committee urges the Government to take the necessary measures without delay to ensure that the application of the legislation will be in full conformity with the above principles.

Annulment of collective agreements. According to section 8 of the ENI, all existing collective agreements are null and void 60 days after the ENI enters into force, and new agreements are to be negotiated by the parties before the expiry of the 60 days; otherwise, the company may unilaterally implement new terms and conditions through a new collective agreement or individual contracts. The Committee emphasizes that legislation which annuls freely negotiated collective agreements in force and requires their renegotiation is contrary to the principle of free and voluntary collective bargaining enshrined in the Convention. In addition, the Committee observes that the Government has provided no clear and imperative reasons concerning any need for economic stabilization in a specific context, and that the legislation has effect on whole sectors without any reference to specific provisions that cannot be implemented in the framework of an acute national crisis. Considering that the abrogation of collective agreements as well as the unilateral imposition of conditions of employment failing agreement is contrary to the obligation to encourage and promote collective bargaining, and that section 8 of the ENI constitutes a direct violation of Article 4 of the Convention, the Committee urges the Government to abrogate this provision.

Renegotiation of collective agreements in case of financial distress. The Committee notes that section 23 of the ENI provides that employers may renegotiate all their collective agreements if they are considered to be in financial distress; if bargaining fails to result in a new collective agreement, the employer may submit its proposals for a new or amended collective agreement to the Prime Minister for review and the Prime Minister shall make a decision on the new terms and conditions of the new or amended collective agreement. With reference to the principles enounced above in the context of the annulment and renegotiation of collective agreements, the Committee considers that section 23 of the ENI amounts to compulsory arbitration by public authorities at the request of one of the parties. Considering that section 23 of the ENI violates the principle of free and voluntary collective bargaining enshrined in the Convention, the Committee therefore requests the Government to abrogate this provision.

Restriction of the right to collective bargaining. Previously, the Committee had requested the Government to indicate the measures taken or contemplated so as to amend section 10 of the Counter-Inflation (Remuneration) Act which envisages, if need be, the restriction or regulation of remuneration of any kind by order of the Prices and Incomes Boards and stipulates that any agreement or arrangement which does not respect these limitations will be illegal and deemed to be an offence. The Committee notes from the Government’s report that: (i) section 10 is dormant, has not been used since 24 years and can only be activated in extreme situations of economic crisis bordering insolvency; (ii) in its efforts to promote collective bargaining, the Government has developed a Code of Good Faith Collective Bargaining as guidance for the social partners; and (iii) the Government’s commitment to the right of workers and employers to bargain freely is evidenced by the fact that section 10 was not activated during the global financial crisis in 2008 and the numerous cyclones hitting Fiji at the same time. The Committee further notes the Government’s indication that, in the framework of the review of outdated laws, the Government is exploring, in light of the recently adopted commercial legislation, the need of retaining the Counter-Inflation (Remuneration) Act and the possibility to merge the Price and Incomes Boards with the Commerce Commission. Accordingly, the Committee requests the Government to take measures to abrogate section 10 of the Counter-Inflation (Remuneration) Act and to provide information on any developments in the framework of the above reform.

In general, the Committee expresses deep concern at the serious violations of the Convention that have been brought to its attention. Recalling the recommendation made by the Committee on Freedom of Association in the framework of Case No. 2723 that the Government accepts an ILO direct contacts mission to clarify the facts and assist the Government and the social partners in finding appropriate solutions in conformity with freedom of association principles, the Committee hopes that such direct contacts mission will be able to take place in the near future with a view to finding solutions to the issues raised.