Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

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

The Committee notes the observations from the Fiji Trades Union Congress (FTUC) received on 19 October 2017 and 23 August 2018 and requests the Government to reply in detail to the matters raised therein.

In its previous comments, the Committee took note of the Joint Implementation Report (JIR) signed by the Government, the FTUC and the Fiji Commerce and Employers’ Federation (FCEF) on 29 January 2016 giving rise to the closure of the procedure invoked under article 26 of the ILO Constitution. The Committee requested the Government to continue to provide information on the developments in relation to the follow-up given to the JIR and the 2016 amendment of the Employment Relations Promulgation (ERP). In light of the information provided in the Government’s November 2017 report and the allegations raised by the FTUC of significant and persistent lack of progress in implementing the JIR, continuing harassment and intimidation of trade unionists, and violations of fundamental human rights, the Committee has decided to examine this Convention outside of the reporting year.

The Committee notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2723 drawing the legislative aspects of the case to the attention of the Committee of Experts (381st and 386th Reports, paragraphs 36–55 and 18–38) and observes that a number of the factual allegations raised by the FTUC have been addressed within the framework of the Committee on Freedom of Association’s examination.

Trade union rights and civil liberties. In reply to its previous comments, the Committee notes with interest that all remaining charges against trade union leaders and members, including Mr Nitendra Goundar, a member of the National Union of Hospitality, Catering and Tourism Industries Employees, have been dropped. The Committee notes with concern however the FTUC’s allegations that harassment and intimidation of trade unionists continues, in particular with respect to its National Secretary, Felix Anthony. It requests the Government to respond in full detail in this regard.

Legislative issues

The Committee notes from the Government’s 2017 report that the Employment Relations Advisory Board (ERAB) met regularly to review the labour laws as agreed under the JIR and that on 27 October 2017, it agreed to circulate its views within two weeks on the workers’ and employers’ positions with a subcommittee to meet in the first week of December 2017 for a detailed examination. The Government’s report indicates that, subsequently, the ERAB would meet every other month.

The Committee observes, however, the FTUC’s claim in its 2018 communication that despite the signing of the JIR, the Government has not engaged in good faith to amend the legislation to bring it into conformity with the Convention, and that the ERAB has not held meetings as agreed and has now been shut down without any review of the legislation or legislative amendment. Moreover, according to the FTUC, legitimate union activities like organizing demonstrations, holding meetings and resolving disputes have become difficult, if not impossible.

As regards the composition of the ERAB, the Committee recalls that its previous comments referred to the right of representative national workers’ and employers’ organizations to participate in national tripartite bodies, and to nominate delegates to international bodies and that it requested the Government to provide information on the composition of the ERAB and the Arbitration Court, and to explain the manner in which the representative national workers’ and employers’ organizations have been able to determine their representatives. The Committee notes the Government’s indication that the Minister for Employment had appointed additional members to the ERAB so as to ensure that all sectors of the social partners were widely represented and that the nominations to the Arbitration Court included nominations for the FCEF and the FTUC. The Committee notes with concern, however, the allegations of the FTUC that the Government has systematically dismantled tripartism by removing and/or replacing the tripartite representation on a number of bodies (including the ERAB, the Fiji National Provide Fund, the Fiji National University Training at the Productivity Authority of Fiji, the Air Terminal Service and the Wages Councils) with its own nominees. Recalling the role of representative national workers’ and employers’ organizations in determining representatives on national bodies, the Committee requests the Government to provide detailed information on the manner in which it designated individuals from membership on these bodies and the representative nature of the organizations that now appear on these bodies.

More generally, the Committee notes with regret that there has apparently been no progress on the review of the labour legislation as agreed in the JIR. With reference to its comments below, the Committee urges the Government to take all necessary measures, including the reconvening of the ERAB, with a view to rapidly bringing the legislation into line with the Convention.

Article 2 of the Convention. Right of workers to establish and join organizations of their own choosing. The Committee had previously noted that the following issues were still pending after the adoption of the Employment Relations (Amendment) Act 2016: denial of right to organize to prison guards (section 3(2)); and excessively wide discretionary power of the Registrar in deciding after consultation whether or not a union meets the conditions for registration under the ERP (section 125(1)(a) as amended). The Committee urges the Government to review the abovementioned provisions, in accordance with the agreement in the JIR and in consultation with the representative national workers’ and employers’ organizations, with a view to their amendment, so as to bring the legislation into full conformity with the Convention.

Article 3. Right of organizations to elect their representatives in full freedom, organize their activities and formulate their programmes. The Committee had previously observed that, pursuant to section 185 of the ERP as amended in 2015, the list of industries considered as essential services now includes the services listed in Schedule 7 of the ERP, the essential national industries declared under the former ENID and the corresponding designated companies, as well as the whole of the public service (that is government, statutory authorities, local authorities and government commercial companies). The Committee had welcomed the agreement with the JIR in which the tripartite partners agreed to invite the Office to provide technical assistance and expertise to assist the ERAB to consider, gauge and determine the list of essential services and industries and requested the Government to supply information on any developments regarding the modification of the list of essential services. Observing that the Government has indicated its interest in the technical assistance of the Office in this regard, the Committee trusts that the necessary assistance will be provided without delay and requests the Government to inform on any developments in this regard.

The Committee also wishes to refer to the following issues in the ERP that were still pending and upon which the Government has not provided any information: obligation of union officials to be employees of the relevant industry, trade or occupation for a period of not less than three months (section 127(a) as amended); prohibition of non-citizens to be trade union officers (section 127(d)); interference in union by-laws (section 184); excessive power of the Registrar to request detailed and certified accounts from the treasurer at any time (section 128(3)); provisions likely to impede industrial action (sections 175(3)(b) and 180); and compulsory arbitration (sections 169 and 170; section 181(c) as amended; new section 191BS (formerly 191(1)(c)); and penalty in form of a fine in case of staging an unlawful but peaceful strike (sections 250 and 256(a)); provisions likely to impede industrial action (section 191BN); penalty of imprisonment in case of staging a (unlawful or possibly even lawful) peaceful strike in services qualified as essential (sections 191BQ(1), 256(a), 179 and 191BM); excessively wide discretionary powers of the Minister with respect to the appointment and removal of members of the Arbitration Court and appointment of mediators, calling into question the impartiality of the dispute settlement bodies (sections 191D, 191E, 191G and 191Y); compulsory arbitration in services qualified as essential (sections 191Q, 191R, 191S, 191T and 191AA). The Committee once again requests the Government to take measures to review the abovementioned provisions of the ERP, in accordance with the agreement in the JIR and in consultation with the representative national workers’ and employers’ organizations with a view to their amendment, so as to bring the legislation into full conformity with the Convention.

Public Order (Amendment) Decree (POAD). With regard to its previous comments concerning the practical application of the POAD, the Committee notes the FTUC’s allegations that permission for union meetings and public gatherings continues to be arbitrarily refused. It once again requests the Government to take the necessary measures to bring section 8 into line with the Convention by fully repealing or amending this provision so as to ensure that the right to assembly is freely exercised and to provide detailed information in reply to the FTUC’s allegations.

Political Parties Decree. The Committee recalls that, in its previous comments, it had noted that, under section 14 of the 2013 Political Parties Decree, persons holding an office in any workers’ or employers’ organization are banned from membership or office in any political party and from any political activity, including merely expressing support or opposition to a political party; and that sections 113(2) and 115(1) of the Electoral Decree prohibit any public officer from conducting campaign activities, and any person, entity or organization that receives any funding or assistance from a foreign government, intergovernmental or non-governmental organization to engage in, participate in or conduct any campaign (including organizing debates, public forums, meetings, interviews, panel discussions, or publishing any material) that is related to the election; and had requested information in this regard.

The Committee notes the Government’s reiteration that it has undertaken reforms including of the voting system to create transparent rules of governance and that these provisions seek to ensure the political neutrality of public officers, which include trade union officers. It further notes the continuing concerns of the FTUC that these provisions have created fear among trade unionists as they have been accused of taking part in political activities when they have simply participated in union meetings while the decree itself denies the basic right of unionists to participate in political activities. Observing that the Political Parties Decree is unduly restrictive in prohibiting membership in a political party or any expression of political support or opposition by officers of employers’ or workers’ organizations, the Committee once again requests the Government to take measures to amend the above provisions, in consultation with the representative national workers’ and employers’ organizations, with a view to their amendment.