Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

The Committee notes the comments submitted on 21 August 2013 by the International Trade Union Confederation concerning issues already being raised by the Committee. The Committee also notes the conclusions and recommendations made by the Committee on Freedom of Association in the framework of Case No. 2723, as well as the related decisions adopted by the Governing Body. Noting with deep regret that the ILO direct contacts mission requested by the Governing Body and the ILO supervisory machinery has still not been able to carry out its mandate in the country, the Committee firmly expects that the mission will be able to take place prior to the March 2014 session of the Governing Body, with a view to assisting the Government and the social partners in finding appropriate solutions to all the outstanding matters raised by the ILO supervisory bodies.

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 Government indicates that the Vatukoula Social Assistance Trust Fund (VSATF) has been established, certain amounts of money granted and various types of assistance provided with regard to the redundant miners for the purpose of their relocation, small and micro-enterprise development and education for dependants. Referring to the Government’s previous indication that the VSATF would benefit around 800 recipients, the Committee observes that the supplied list of beneficiaries only includes 67 persons. The Committee requests the Government to supply the final list of recipients and to continue to engage with the Fiji Mine Workers Union representatives with a view to the expeditious and effective implementation of a mutually satisfactory settlement for assistance to help the remaining workers re-establish themselves, in particular, by ensuring that they are adequately compensated via the VSATF in the very near future. It trusts that, after 23 years, this long-standing dispute which has caused great hardship to the dismissed workers will finally and equitably be resolved.

Article 4. Promotion of collective bargaining. The Committee recalls that several provisions of the Essential National Industries Decree 2011 (ENID) are not in line with the Convention:

• -Section 2 (threshold of 75 workers to form bargaining units): The Committee notes the Government’s indication that this provision ensures that workers performing similar types of work come together to enter into collective agreements; that workers still join unions in essential national industries; and that the freedom not to join should be respected. The Committee reiterates that a threshold of 75 workers to form bargaining units is excessive and denies the right to bargain collectively to a considerable number of workers in a given enterprise, especially in small enterprises. The Committee urges the Government once again to take the necessary measures without delay to amend the threshold.
• -Part 3 in conjunction with section 2 (role of both union delegates and elected workers’ representatives as bargaining agents): In the absence of new elements of information, the Committee once again urges the Government to take the necessary measures without delay to apply the legislation so as to ensure that the existence of elected representatives is not used to undermine the position of the trade unions concerned.
• -Section 8 (annulment of collective agreements in force; new collective agreement may be imposed by company if negotiation exceeds 60 days): The Committee notes the Government’s indication that there is a right of appeal to the minister for a review of the contents of the imposed agreement. Considering that the abrogation of collective agreements, as well as any unilateral imposition of conditions of employment failing agreement, is contrary to the obligation to encourage and promote collective bargaining, the Committee again urges the Government to repeal this provision.
• -Section 23 (renegotiation of collective agreements in case of financial distress; intervention of the Prime Minister failing agreement): The Committee notes that, if the parties do not reach agreement during the renegotiation of the collective agreement, the employer may submit a proposal to the Prime Minister. The Committee notes the Government’s statement that the purpose is to ensure the long-term sustainability of industries vital to the economy, and that the provision applies only to employers with operating losses suffered for two consecutive years, or suffered or expected twice in a three-year-period. The Committee considers that certain limited restraints on collective bargaining could only be imposed within the context of a serious economic crisis as an exceptional measure, namely in cases of serious and insurmountable difficulty, for the preservation of jobs and the continuity of enterprises and institutions. In any event, the arbitration body should be independent and enjoy the confidence of the parties concerned. The Committee requests the Government to amend this provision so as to ensure the respect of these principles.

The Committee notes the Government’s statement that the role of the tripartite Employment Relations Advisory Board (ERAB), which had agreed earlier to delete most of the abovementioned ENID provisions identified by itself as offending, is to advise the Minister of Labour, whereas the final decision on the ENID will subsequently be made at the political level by Cabinet. Noting that, according to the Constitution of Fiji passed on 6 September 2013, most legislation (including the ENID) will remain in force but may be amended by Parliament, the Committee urges the Government to take the necessary measures to amend the above provisions in the very near future, in full consultation with the social partners and in line with the measures agreed by the ERAB subcommittee, so as to bring it into conformity with the Convention.

Counter-Inflation (Remuneration) Act. The Committee welcomes that, pursuant to section 160(1) of the Commerce Commission Decree 2010, the Counter-Inflation Act, including its section 10 (restriction or regulation of remuneration by order of the Prices and Incomes Boards; illegality of any agreement to the contrary), was repealed. The Committee notes, however, that according to section 162(1) of the Commerce Commission Decree, any orders made under the Counter-Inflation Act continue in force until replaced by subsidiary legislation made under the Decree. The Committee requests the Government to provide information as to whether any orders made under the Counter-Inflation Act allowing for restrictions to collective bargaining as regards remuneration remain in force, and whether any subsidiary legislation made under the Commerce Commission Decree is envisaged to be adopted.