Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Fiji (Ratification: 2002)

Comments of workers’ and employers’ organizations. The Committee notes the comments made by the International Trade Union Confederation (ITUC) dated 31 July and 31 August 2012, on the application of the Convention. It further notes the communication of the Fiji Mine Workers Union (FMWU) of 19 September 2012, concerning matters examined by the Committee in the framework of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The Committee notes the comments made by the International Organization of Employers (IOE) on the right to strike, in a communication dated 29 August 2012, which are dealt with in the General Report of the Committee.

ILO direct contacts mission. The Committee notes the latest conclusions and recommendations reached by the Committee on Freedom of Association (CFA) in the framework of Case No. 2723 concerning, inter alia, acts of assault, harassment, intimidation and arrest of trade unionists, in particular, that it expresses its grave concern that the ILO direct contacts mission that visited Fiji in September 2012, was not allowed to continue its work, and that it draws the Governing Body’s attention to the extreme seriousness and urgency of the issues involved in this case. The Committee deeply regrets this loss of opportunity to clarify the facts and assist the Government and the social partners in finding appropriate solutions to the issues raised by the Committee and the CFA. It hopes that a new mission may visit the country in the near future in order to deal with the matters examined by the ILO supervisory bodies.

Trade union rights and civil liberties. The Committee reiterates its great concern about the numerous acts of assault, harassment, intimidation and arrest of trade union leaders and members for their exercise of the right to freedom of association, previously reported by the ITUC and Education International (EI).

Acts of assault. Concerning the alleged physical attacks on several trade unionists, the Committee notes the Government’s statement that: (i) to date, neither the Police Department nor the Office of Public Prosecutions has received any complaint filed by Mr Felix Anthony or Mr Mohammed Khalil for the alleged physical assaults, and investigations have thus not been initiated; and (ii) internal legal mechanisms within the country itself have therefore not been fully utilized by these two persons.

The Committee recalls that the resolution concerning trade union rights and their relation to civil liberties, adopted by the International Labour Conference (ILC) at its 54th Session in 1970, lists as first among the liberties essential for the normal exercise of trade union rights the right “to freedom and security of person” since this fundamental right is crucial to the effective exercise of all other liberties, in particular, freedom of association. The Committee once again emphasizes that it has always considered that, in the event of assaults on the physical or moral integrity of individuals, an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts. Moreover, as regards allegations of the physical ill-treatment of trade unionists, the Committee has always recalled that governments should give precise instructions and apply effective sanctions where cases of ill-treatment are found. The absence of judgments against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights. The Committee therefore urges the Government to take all necessary measures without delay to ensure the full respect of the above principles. It also urges the Government, even if the victims have lodged a complaint in the meantime, to conduct ex officio an independent investigation without delay into the alleged acts of assault, harassment and intimidation against Mr Felix Anthony, National Secretary of the Fiji Trades Union Congress (FTUC) and General Secretary of the Fiji Sugar Workers; Mr Mohammed Khalil, President of the Fiji Sugar and General Workers Union (FSGWU) – Ba Branch; Mr Attar Singh, General Secretary of the Fiji Islands Council of Trade Unions (FICTU); Mr Taniela Tabu, General Secretary of the Viti National Union of Taukei Workers (VNUTW); and Mr Anand Singh, lawyer. The Committee requests the Government to transmit detailed information with regard to the outcome of such inquiry and the action taken as a result. With particular regard to the reported act of assault against a union leader in retaliation for statements made by his colleague at the ILC in 2011, the Committee reiterates that the functioning of the Conference would risk being considerably hampered and the freedom of speech of the workers’ and employers’ delegates paralysed if the relevant delegates or their associates were victims of assault or arrest due to the expression of views at the Conference. It urges the Government to ensure that no trade unionist suffers retaliation for the exercise of freedom of expression.

Arrest and detention. With respect to the arrested trade unionists (Mr Felix Anthony, Mr Daniel Urai, and Mr Nitendra Goundar), the Committee notes that the ITUC indicates that Mr Daniel Urai, the FTUC President, has two cases pending in court which have still not been heard: one for preparing union members for collective bargaining and the other one for having allegedly incited political violence by urging to overthrow the Government; and that, in the first case which is pending for almost a year, the prosecution has not been able to produce the required disclosures including the identification of the complainant.

The Committee also notes the Government’s summary of events: (i) Mr Nitendra Goundar and Mr Daniel Urai convened and conducted a meeting with the Hotel Workers’ Union at the Mana Island Resort on 3 August 2011, without the appropriate permit under the Public Emergency Regulations (PER) and allegedly made inciting remarks against the Government of Fiji; (ii) police arrested the two trade unionists and detained them for questioning in the conference room of the Nadi police station for one day; (iii) Mr Goundar and Mr Urai were charged on 4 August 2011 for breaches under the PER; (iv) by their own admission, they erred by not applying for the relevant permit to hold a public meeting but denied allegations that they made statements against the current Government; (v) at no time were the two unionists coerced, threatened or assaulted; and (vi) the hearing of the case is scheduled on 4 June 2012.

While having previously noted that Mr Felix Anthony, Mr Daniel Urai, and Mr Nitendra Goundar had been released from custody, the Committee notes with concern that the criminal charges of unlawful assembly brought against Mr Goundar and Mr Urai on the grounds of failure to observe the terms of the PER are still pending. The Committee considers that, while being engaged in trade union activities does not confer immunity from sanctions under ordinary criminal law, the authorities should not use legitimate trade union activities as a pretext for arbitrary arrest or detention or criminal charges. With respect to the abovementioned trade unionists, the Committee therefore urges the Government to take the necessary measures to ensure that all charges against them are immediately dropped, and to provide information of any developments in this regard without delay, including the outcome of the case hearing that the Committee understands has been deferred. The Committee also recalls that the arrest and detention, even for short periods, of trade union leaders and members, engaged in their legitimate trade union activities constitute a grave violation of the principles of freedom of association (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 31). It urges the Government to take full account of this principle in the future.

Restrictions to freedom of assembly and expression. Furthermore, in regard to its previous comments relating to freedom of assembly and expression, the Committee notes the ITUC’s view that many of the powers found in the recently repealed PER are included and expanded in the 2012 Public Order (Amendment) Decree (POAD); in particular, the ITUC criticizes the broad definition of “act of terrorism” that could be used for charging trade unions, the increased prison sentence of up to five years for holding a meeting without permission and the circumstances in which the police may refuse a permit. The Committee, moreover, notes the additional allegations that: (i) while union meetings are currently being held with greater frequency, the authorities (police) are selective in their responses to the permissions sought for meetings; (ii) police scrutinize meeting agendas and the content of speeches before they issue any permits; (iii) the FTUC Assistant National Secretary, Rajeshwar Singh, who represents the FTUC on the Air Terminal Services (ATS) Board was removed from the Board on 31 December 2011 by the Government on the grounds that he had a meeting with Australian trade unionists and allegedly called for a boycott; and (iv) freedom of expression is being limited, for example, in April 2012, a daily newspaper has refused to print a paid advertisement from the FTUC on Labour Day for fear of reprisal from the regime.

The Committee takes due note of the Government's indication that: (i) the PER have been lifted as of 7 January 2012 and that Fiji is once again guided by the Public Order Act as modernized through the POAD, which is an important step in the ongoing elaboration of the new constitution; (ii) notwithstanding the above, the PER did not prohibit trade unions from holding public meetings so long as they abided by the conditions required; (iii) over the last five years, the Government has approved numerous meeting permits; and (iv) today in Fiji, trade unions under the Public Order Act are holding meetings and conducting their important work in promoting the rights and well-being of workers in Fiji.

While welcoming the lifting of the emergency legislation in the form of the PER on 7 January 2012, the Committee notes with concern certain provisions of the Public Order Act as amended by the POAD, in particular, the new subsection (5) of section 8, according to which “the appropriate authority may, in its discretion, refuse to grant a permit under this section to any person or organization that has on any previous occasion been refused a permit by virtue of any written law or, to any person or organization that has on any previous occasion failed to comply with any conditions imposed with respect to any meeting or procession or assembly, or any person or organization which has on any previous occasion organized any meeting or procession or assembly which has prejudiced peace, public safety and good order and/or which has engaged in racial or religious vilification or undermined or sabotaged or attempted to undermine or sabotage the economy or financial integrity of Fiji”. The Committee considers that the wording of this provision could be used in such a way as to make it difficult for trade unions to hold public meetings, especially given the previous allegations of the use of the PER to restrict their rights in this regard. It once again recalls that the right of assembly, freedom of opinion and expression and, in particular, freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers, constitute civil liberties which are essential for the normal exercise of trade union rights (ILC resolution concerning trade union rights and their relation to civil liberties, adopted at the 54th Session, 1970). Welcoming the decision to temporarily suspend the application of section 8 of the Public Order Act as amended, the Committee requests the Government to consider abrogation or amendment of the POAD so as to ensure that the right to assembly may be freely exercised. The Committee urges the Government once again to take full account of the principles announced above in the future and refrain from unduly impeding the lawful exercise of trade union rights in practice. With regard to Mr Rajeshwar Singh, FTUC Assistant National Secretary, the Committee is of the view that addressing trade unions abroad is part of the normal exercise of trade union rights. It requests the Government to reinstate him in his position representing workers' interests on the ATS Board.

Legislative issues. Essential National Industries Decree No. 35 of 2011. The Committee had previously urged the Government to take the necessary measures to amend the provisions of the Essential National Industries Decree without delay, in full consultation with the social partners, so as to bring it into conformity with the Convention. It notes that, in the view of the ITUC, the Decree continues to devastate trade unions in the covered sectors. The Committee observes that, in the framework of Case No. 2723, the CFA has recalled its previous conclusion that numerous provisions of the Decree and its implementing regulations give rise to serious violations of the principles on freedom of association and collective bargaining, for example, section 6 (cancellation of all existing trade union registrations in essential national industries); sections 10–12 (unions to apply to the Prime Minister to be elected as bargaining unit representative; determination by the Prime Minister of composition and scope of a bargaining unit for election purposes; conduct and supervision of elections by the Registrar); section 14 (50 per cent plus one necessary for a union to be registered as representative of the bargaining unit); section 7 (union officials to be employees of the relevant company); section 27 (providing for serious restrictions of the right to strike); section 26 (lack of judicial recourse for rights disputes; compulsory arbitration by the Government of disputes beyond a certain financial threshold); section 24(4) (prohibition of automatic dues deduction for workers in essential national industries).

The Committee welcomes that, according to the report of the direct contacts mission, within the framework of the current process of developing a new non-race based constitution for Fiji to be ready by early 2013 through an inclusive national dialogue paving the way to the first democratic elections scheduled in 2014, and in view of the fact that the new Constitution will reflect the eight fundamental ILO Conventions and that national labour legislation will need to be compatible with it, the tripartite Employment Relations Advisory Board (ERAB) subcommittee has been tasked with the review of all existing Government decrees relating to labour in terms of their conformity with the ILO fundamental Conventions. The Committee notes the Government’s indication that the ERAB subcommittee, the last meeting of which took place on 13 August 2012, is expected to be reconvened with the views of the Public Service Commission (PSC) and the Attorney-General, and that the work of the ERAB and its subcommittee is anticipated to be concluded by October 2012. The Committee further welcomes that, according to the CFA conclusions in the framework of Case No. 2723, the ERAB subcommittee agreed, as stated by the complainant, to delete most of the provisions of the Essential National Industries Decree considered as offending. The Committee trusts that the measures agreed by the tripartite ERAB subcommittee will be actively pursued and given effect in the near future, so as to bring the legislation into conformity with the Convention, and requests the Government to provide information on any progress made in this regard.

Noting with deep concern that, according to the ITUC, public sector unions and unions representing “essential national industries” face serious financial difficulties or even struggle for survival due to the discontinued check-off facility, the Committee observes that, in the framework of Case No. 2723, the CFA has considered that the withdrawal of a facility of existential importance to unions that was previously granted could, in the current context, be viewed as another attempt to weaken the Fiji trade union movement. The Committee underlines that the withdrawal of the check-off facility, which could lead to financial difficulties for trade union organizations, is not conducive to the development of harmonious industrial relations. The Committee therefore requests the Government to make the necessary arrangements to ensure that the check-off facility is fully reactivated in the public sector and the sectors considered as essential national industries.

Employment Relations Promulgation of 2007 (ERP). The Committee previously commented on the necessity to amend the following provisions of the ERP in order to bring them into conformity with the Convention.

• -section 3(2) so as to ensure that prison guards enjoy the right to establish and join organizations of their own choosing;
• -section 125(1)(a) so as to ensure that refusals to register an organization under the said section are determined on the basis of objective criteria. While noting that the Government indicates that since 2007 the Registrar has never refused any trade union application to register under the ERP, the Committee still considers that this provision confers upon the authorities excessively wide discretionary powers in deciding whether or not an organization meets all the conditions for registration;
• -section 119(2), in order to enable workers exercising more than one occupational activity in different occupations or sectors to join the corresponding trade unions as full members. The Committee notes that, according to the Government, all Fijian trade unions have agreed to the one-union policy per person in the context of all other rights that have been packaged under the ERP. The Committee considers that demanding that workers belong to no more than one union, in order to sign an application for registration, may unduly infringe upon the right of workers to join organizations of their choosing;
• -section 127, which provides that officers of a registered trade union must have been engaged or occupied for a period of not less than six months in an industry, trade or occupation with which the union is directly concerned; and forbids non-citizens to be trade union officers;
• -section 184 so as to ensure that the issue of the expulsion from the trade union of members for refusal to participate in a strike is left to trade union constitutions and rules. The Committee notes that the Government indicates that the trade unions themselves, citing the fact that they do not have the capacity to resolve internal grievances amongst themselves, requested the Registrar to become involved in these cases. Whilst preferring that unions independently resolve their issues for fear that its participation may be perceived by the ILO to be interference into trade union matters, the Registrar at the behest of the unions has successfully mediated and facilitated the resolution of some of these cases. The Committee notes this information but considers that it should ultimately be up to the trade unions concerned to decide on the expulsion or sanctions against its members, regardless of the invoked reasons;
• -section 128, so as to ensure that only complaints filed by a certain fixed percentage of union members may give rise to an inspection of union accounts. The Committee takes note of the Government’s statement that the current practice is consistent with the ILO Recommendations, since the good governance oversight, which is necessary because trade unions in Fiji receive public funds from their members for their daily operations, is only activated when serious complaints of abuse of such funds are raised with the Registrar, or when the audited accounts reveal significant anomalies that warrant investigations. However, the Committee must recall that a provision which grants authorities the power to examine the books of an organization at any time, unless there is a complaint from a certain percentage of the trade union members, infringes the Convention;
• -section 175(3)(b) so as to ensure that, only a simple majority of the votes cast in a strike ballot is required. The Committee notes the Government’s indication that this has been agreed by all trade unions and unanimously passed by Fiji's multiparty Government and the Lower House in 2006. In these circumstances, the Committee must once again recall that although a ballot requirement does not, in principle, raise problems of compatibility with the Convention, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult, or even impossible in practice. If a member State deems it appropriate to establish in its legislation provisions which require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast and that the required quorum and majority are fixed at a reasonable level;
• -section 180 so as to ensure that responsibility for declaring a strike illegal lies with an independent body which has the confidence of the parties involved. It notes that the Government shares the sentiment of the ILO and that the independence element of this provision is currently under scrutiny by the ERAB subcommittee;
• -sections 169, 170, 181(c) and 191(1)(c), so as to ensure that their cumulative effects do not amount to compulsory arbitration. The Committee notes that the Government indicates that the policy design of the ERP integrates both the promotion of good faith employment relations and productivity improvement. In practice, this means that those who create employment grievances or disputes have the primary responsibility to solve them and not the State. However, when the parties have exhausted this internal resolution process with good faith, for effective governance, especially in the context of financial global economic crisis, either party to the dispute or the State has to be accorded the right to refer the unresolved dispute to the State mechanism so that the dispute can be amicably resolved speedily without adverse effects to the nation as a whole. In this regard, the referral is not perceived as compulsory, and the system is working very effectively. Nonetheless, the Committee’s request is under discussion at the ERAB subcommittee;
• -section 256(a), which, when read with section 250, provides for a possible penalty of imprisonment in case of the staging of an unlawful strike. The Committee notes the Government’s statement that it takes note of the ILO position in this matter and is willing to review these provisions through the tripartite dialogue in the ERAB subcommittee. However, the Government indicates that, prior to the ERP, trade unions have abused this right to strike provision due to bad faith and the lack of a deterrent mechanism, and that, while fully recognizing the right of workers to go on strike as effectively protected under the ERP, the Government is bound to also include effective deterrents for those who abuse this right. The Committee wishes to recall that no penal sanctions should be imposed against a worker for having carried out a peaceful strike, and therefore that measures of imprisonment should not be imposed on any account. Such sanctions could be envisaged only where, during a strike, violence against persons or property, or other serious infringements of penal law have been committed, and can be imposed pursuant to legislation punishing such acts, such as the Penal Code.

The Committee welcomes the Government’s indication that a national peak tripartite body, the ERAB, is responsible for any amendments to the ERP, and that a tripartite subcommittee of the ERAB has been given the mandate to look into the need for any amendments to the ERP and is going through all proposals for amendments before submitting them to the Board for endorsement. The Government expresses the hope to conclude the amendment process in 2012, reiterates its commitment to honour its obligations under the core ILO Conventions in the new Constitution and states that this proactive and inclusive social dialogue in the labour market through the tripartite ERAB to review current labour market policies, laws, institutions and practices is a vital part of the Government's wider national dialogue in the development of Fiji's modern and non-discriminatory Constitution to be in place early 2013, paving the way for the general election in 2014. The Committee trusts that the issues raised above will be part of the deliberations of the ERAB subcommittee and that, in the framework of this exercise, due account will be taken of the Committee’s comments with a view to bringing the ERP into conformity with the Convention. It requests the Government to indicate, in its next report, the results of the ERAB’s deliberations.

Decrees relating to the public sector. The Committee previously noted that the Employment Relations (Amendment Decree) No. 21 excluded 15,000 public service workers from the coverage of the ERP who thus lost overnight their fundamental and other trade union rights, and urged the Government to take all necessary measures to ensure that public servants enjoy the guarantees enshrined in the Convention. The Committee notes the Government’s indication that, since the passing of the Public Service (Amendment) Decree (Decree No. 36), all public servants in Fiji enjoy similar employment safeguard mechanisms as those foreseen in the ERP for the private sector. The Committee welcomes the adoption of the Public Service (Amendment) Decree, which, after the exclusion of public servants from the ERP, restores the protection of their fundamental rights including trade union rights.

The Committee had also noted that the State Services Decree No. 6 of 2009, the Administration of Justice Decrees Nos 9 and 10 of 2009 and No. 14 of 2010 as amended and the Employment Relations (Amendment) Decree No. 21 of 2011 issued by the Government, collectively eliminated the access of workers in the public service to the judicial or administrative review of any executive decision concerning the public service (including on terms and conditions of employment of public servants) and other selected sectors; and terminated any pending or ongoing judicial or administrative proceedings in this regard filed by any individual or organization against the State. The Committee notes the Government’s indication that: (i) civil servants have recourse to the High Court of Fiji by way of judicial review should they be unsatisfied with the decision of the PSC Disciplinary Committee; in this regard, the Government refers to the judgment of the State v. Permanent Secretary for Works, Transport and Public Utilities ex parte Rusiate Tubunaruarua & Ors HBJ01 of 2012, where the High Court ruled that it has full jurisdiction to accept cases from public servants who seek to challenge a decision of the Government or the PSC; and (ii) to facilitate speedy resolutions of employment grievances and disputes, the PSC has implemented a new internal grievance policy that includes the appointment of conciliators within government Ministries and Departments. The Committee welcomes the decision recently rendered by the High Court and the new PSC internal grievance policy. It requests the Government to supply a copy of the High Court decision and to take all necessary measures to ensure that, in practice, all public servants may also have recourse to administrative review of decisions or actions of Government entities. Moreover, the Committee requests the Government to provide information on the relevant mechanisms currently available to public servants to address collective grievances, and to indicate the results of the review by the tripartite ERAB subcommittee of all existing Government decrees relating to the public service in terms of their conformity with the ILO fundamental Conventions.