Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

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

The Committee takes note of the observations provided by the International Trade Union Confederation (ITUC) in a communication received on 1 September 2014 and of the observations provided by the International Organisation of Employers (IOE) in a communication received on 1 September 2014.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 102nd Session, June 2013)

The Committee recalls that a complaint under article 26 of the ILO Constitution alleging the non-observance of the Convention by Fiji, submitted by a number of Workers’ delegates at the 2013 International Labour Conference, was declared receivable and remains pending before the Governing Body. The Committee takes note of the report of the ILO direct contacts mission that visited Fiji from 6 to 11 October 2014, which was submitted to the Governing Body in the context of its consideration of the article 26 complaint. The Committee notes with interest the following conclusion from the mission report: “The recent elections and inauguration of a new parliament provided an auspicious backdrop for its (the mission’s) work which sets the tone for a new dispensation where concrete and tangible progress can be made in response to the outstanding requests from the ILO supervisory bodies. The mission was especially encouraged by the frank and open dialogue it was able to have with all concerned and the genuine desire that was expressed to move the country forward on the basis of mutual respect.” The Committee takes note of the Memorandum of Understanding (MoU) on the future of labour relations in Fiji signed by the social partners and expects that this will provide the basis for progress in the country on all of the outstanding matters concerning the application of the Convention.

Trade union rights and civil liberties. The Committee notes with interest from the mission report that the new Police Commissioner has reactivated the investigation into the assault of trade union leader, Felix Antony, which had been the subject of its previous comments. The Committee, like the mission, trusts that Mr Antony will cooperate in any way he can with the investigation and requests the Government to provide information on any further developments in this matter.

The Committee further recalls that its previous comments also referred to the cases of Mr Daniel Urai (President of the Fiji Trades Union Congress (FTUC)) and Mr Goundar who were charged with unlawful assembly on the grounds of failure to observe the terms of the Public Emergency Regulations (PER). The Committee notes with regret from the mission report that the case against Mr Urai is still pending in court. The Committee trusts that all charges related to his exercise of trade union activity will be immediately dropped and expresses the strong hope that this matter will be closed in the very near future. The Committee also requests the Government to indicate whether there are any charges still pending against Mr Goundar.

Legislative issues. The Committee recalls its previous comments requesting that the Government amend the following provisions of the Essential National Industries Decree No. 35 of 2011 (ENID) in order to bring them into conformity with the Convention: section 6 (cancellation of all existing trade union registrations in “essential national industries”); section 7 (all union officials must be employees of the company); sections 10–12 (unions must apply to the Prime Minister to qualify to be elected as bargaining unit representative; determination by the Prime Minister of composition and scope of bargaining unit for election purposes; conduct and supervision of elections by Registrar); section 14 (50 per cent plus one requirement for a bargaining unit representation to be registered); section 26 (lack of judicial recourse for rights disputes; compulsory arbitration by the Government of disputes beyond a certain financial threshold); and section 27 (serious restrictions of the right to strike).

The Committee notes the Government’s indication that it is anticipated that the direct contacts mission would provide an enabling platform for the resolution of the pending issues related to the ENID and enable the newly elected Government to debate and decide on these issues in the new Parliament guided by the recommendations of the Committee on Freedom of Association and of the Committee of Experts.

The Committee notes with concern that the industries covered by the ENID have been extended. The ENID now covers a number of private banks, the Fiji Revenue and Customs Authority, the Fiji Telecommunications Industry, Fiji Airways, the Fiji Electricity and the Water Authority, the Pine and the Mahogany Industries, Fire Prevention and local government. The Committee further notes from the mission report that:

The mission heard numerous witnesses expressing deep concern about the effects of the ENID on the trade union movement in the country and the capacity to exercise trade union rights. Indeed, beyond the detailed provisions that the supervisory bodies have already requested be amended, the information gathered by the mission from all concerned, including enterprises covered by the Decree and their respective bargaining units, has led it to understand that it is not possible for trade unions as such to continue to function under the Decree. ... The de-registration of unions and abrogation of collective bargaining agreements are not followed by the establishment of enterprise unions, but rather the creation of bargaining units with employee representatives that have to additionally create new legal structures for any dues collection. While it has been said that they can consult with outside unions, the employee representatives are nevertheless obliged to sit alone in negotiations with management representatives and hired lawyers apparently much better equipped for such dialogue; thus resulting in a severe imbalance of power in the bargaining process, not to mention the fear of reprisal that accompanies employee bargaining representatives who consider that their jobs may be in jeopardy. Bearing in mind the testimony that court cases concerning ENID companies were terminated on the basis that the Decree’s provisions do not allow for judicial review, the mission considers that such fears are fully comprehensible.

The Committee notes from the mission report that all the bargaining unit representatives and concerned unions met had expressed their desire to be brought back under the scope of the Employment Relations Promulgation (ERP) and that the employers also considered the Promulgation the most appropriate framework for constructive labour relations in the country, while some further amendments to that text might be apposite. The Committee therefore urges the Government to give serious consideration to the full abrogation of the ENID along the lines supported by the social partners when last examining it in the tripartite Employment Relations Advisory Board (ERAB) subcommittee and to provide information on all developments in this regard.

With respect to the ERP of 2007, the Committee recalls once again its request for the amendment of the following provisions of the ERP in order to bring them into conformity with the Convention: section 3(2) (denial of right to organize to prison guards); section 125(1)(a) (excessively wide discretionary power of the Registrar in deciding whether or not a union meets the conditions for registration under the ERP); section 119(2) (imposition of one union per person policy to workers exercising more than one occupational activity); section 127 (obligation of union officials to be employees of the relevant industry, trade or occupation for a period of not less than six months and prohibition of non-citizens to be trade union officers); section 184 (interference in union by-laws); section 128 (excessive power of the Registrar to inspect union accounts at any time); sections 169, 170, 175(3)(b), 180, 181(c) and 191(1)(c) (excessive restrictions on union activity); and sections 250 and 256(a) (penalty of imprisonment in case of staging an unlawful strike).

The Committee notes the Government’s summary of the holistic review of the ERP by the ERAB subcommittee which successfully concluded its work at the end of 2013 giving rise to proposals for amendment to 412 provisions out of which 98 per cent were agreed by majority consensus. The Government further indicates that the ERAB subcommittee unanimously proposed the drafting, development and implementation of a new Employment Relations Tribunal (ERT) Rules to facilitate the culture shift in ERT consistent with the policy of the ERP; the draft Rules were completed in February 2014. The final draft revised ERP was forwarded to the Solicitor-General’s Office on 21 March 2014. Following review by the Solicitor-General, it will be tabled with Cabinet.

The Committee notes this information with interest and firmly expects that the draft amended ERP will be submitted to Parliament in the near future and will ensure full conformity with the Convention. It requests the Government to provide information on the progress made in this regard.

As to the decrees relating to the public sector eliminating the access of public service workers to judicial or administrative review and restricting their rights under the Convention, the Committee notes the Government’s indication that it is anticipated that the direct contacts mission would provide an enabling platform for the resolution of the pending issues and enable the newly elected Government to debate and decide on these issues in the new Parliament guided by the recommendations of the Committee on Freedom of Association and of the Committee of Experts. The Committee once again requests the Government to take all necessary measures to ensure that public servants have genuine and effective recourse to judicial review of any decisions or actions of government entities affecting their conditions of employment, especially as regards the exercise of their rights under the Convention, and to provide relevant statistics and information on the mechanisms available to address collective grievances. Moreover, the Committee requests the Government to indicate any progress made to review the government decrees relating to the public service in terms of their conformity with the ILO fundamental Conventions and any steps for their amendment or repeal.

Finally, the Committee notes from the direct contacts mission report that the mission had learned of the newly published Electoral Decree (No. 11, 2014), which provided that the Electoral Office shall be responsible, under section 154, for the conduct of all elections of all registered trade unions. Noting the concerns expressed by the workers’ and employers’ organization in this regard, the Committee recalls that Article 3 of the Convention provides that these organizations should be able to elect their officers free from interference of the public authorities and firmly expects that any supervision of elections of employers’ or workers’ organizations will be carried out by an independent body and will not interfere with this right. The Committee requests the Government to provide information on any developments in this regard.

Matters raised by the ITUC

The Committee recalls that in its previous comments it had noted with deep concern the ITUC allegations relating to: (i) the rights relating to freedom of association enshrined in the new Constitution (articles 19 and 20) are subject to broad exceptions which could be invoked to undermine the underlying principles and justify the existing harmful decrees; (ii) under the Political Parties Decree, persons holding an office in any workers’ or employers’ organization are banned from membership or office in any political party and any political activity, including merely expressing support; and (iii) the Fiji Sugar and General Workers’ Union (FSGWU) members have been threatened and intimidated by the military and the management of the government-owned Fiji Sugar Corporation (FSC) before, during and after the holding of the strike ballot in July 2013. The Committee observes that the Government has not provided any detail in reply to these matters other than to reiterate the exceptions permitted in article 19 of the Fijian Constitution which enables limitations on the fundamental right of freedom of association “for the purpose of regulating essential services and industries, in the overall interests of the Fijian economy and the citizens of Fiji”. The Committee notes in this regard that article 19(2) enables limitations for the purposes of regulating trade unions or collective bargaining process. Given that these limitations could potentially be interpreted to permit very broad restrictions on this fundamental right, the Committee requests the Government to provide information on any court judgments issued interpreting these provisions and expects that, as raised in the direct contacts mission report, the courts will also have recourse to international law in interpreting the provisions of the Fijian Constitution as set out in article 7(1)(b). The Committee also once again requests the Government to provide its observations on the matters raised in relation to the Political Parties Decree and the threats made against the members of the FSGWU.

[The Government is asked to reply in detail to the present comments in 2015.]