Informe provisional - Informe núm. 272, Junio 1990

Caso núm. 1425 (Fiji) - Fecha de presentación de la queja:: 01-OCT-87 - Cerrado

1. 273. The Committee has examined this case on two previous occasions, at its February 1988 and November 1989 meetings, when it presented interim reports to the Governing Body. (See 254th Report, paras. 505-523 and 268th Report, paras. 410-458.) The Government subsequently sent its further reply in a letter dated 12 April 1990.
2. 274. Fiji has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 275. The original complaint - received in October 1987 - related to certain interventions by the authorities in union matters after the September 1987 military coup. In a series of replies the Government stated that the unions were now functioning normally and gave assurances for the continued protection of trade union rights so long as the unions refrained from any subversive actions which might destabilise the economy. The ICFTU went on to allege that certain legislative enactments violated freedom of association or risked abuse when applied to unionists or union activities, and that restrictions continued in practice despite the Government's assurances. The Government denied these further allegations and justified its promulgation of certain texts by referring to their general scope. It referred to a forthcoming visit from the ICFTU, due in October 1989, which the Government welcomed as an occasion to show that trade union rights and privileges were intact.
2. 276. In the light of the Committee's interim conclusions, the Governing Body, at its November 1989 Session, approved the following recommendations (268th Report, para. 458.):
   • (a) First, the Committee notes that a second ICFTU mission will be visiting Fiji in October 1989 and it requests this complainant organisation to supply it with a copy of the mission's report once it is available.
   • (b) The Committee considers that trade union organisations should be able to meet in their own premises on Sundays.
   • (c) The Committee recalls that authorisation to hold trade union meetings and public gatherings should not be arbitrarily refused.
   • (d) The Committee expresses its concern that detained unionists were not accorded the guarantees enunciated in several international instruments and it asks the Government to give precise instructions and apply effective sanctions where cases of ill-treatment of detainees are found.
   • (e) As regards the alleged attempts to curtail trade union activity in the public sector, the Committee draws the Government's attention to the principle that no person should be prejudiced in his or her employment by reason of his or her trade union membership or activities; it considers that any reorganisation of the public service should not infringe or limit the activities protected by ILO Conventions.
   • (f) The Committee refers to the Committee of Experts on the Application of Conventions and Recommendations the informaton contained in this case on the partial reactivation of certain tripartite bodies due in 1989, which have a bearing on Fiji's application in practice of Convention No. 98.
   • (g) The Committee expresses its firm hope that the Government will not reactivate the suspended Internal Security Decree of 1988 which contained, inter alia, exceptionally broad powers of arrest and detention without trial and bans on freedom of expression, assembly and movement.
   • (h) Finally, the Committee requests the Government to give further details on the contents of and current legislative situation concerning the draft Constitution announced in September 1988.

B. The Government's reply

1. 277. To its letter of 12 April 1990, the Government attaches press clippings heralding the ICFTU mission's meeting with its affiliate, the Fiji Trades Union Congress (FTUC), and government representatives as a "move towards dialogue". The clippings recall that relations between the FTUC and the Government have been deteriorating since 1984 when the Government broke tripartite relations and culminated in 1986 in government refusal to recognise the FTUC as the official representative of all workers in the country. The Government also supplies a copy of the Joint Statement issued after the meeting on 6 October 1989 reflecting the meeting's hope that "in the spirit of good will as demonstrated by the meeting it would be possible in due course to revert to a more normal position in labour relations". In particular in the Joint Statement the Government representatives recognised the need for continuing consultation and dialogue.
2. 278. The Government states that the Sunday Observance Decree of 1989 regulates the observance of Sunday both as a Christian holy day and a day of rest. As such it restricts the right of freedom of association assured by section 12(1) of the Protection of Fundamental Rights and Freedoms of the Individual Decree 1989. The Sunday Observance Decree is consistent in limiting authorised activities to essential services, private entertainment and limited services for the benefit of the public. While Fiji has yet to ratify the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the issue raised by the Committee is one that will be considered in the future as the country returns to some form of parliamentary democracy.
3. 279. As regards the need for authorisation for public union meetings, the Government states that section 12(1) of the Fundamental Rights and Freedoms Decree guarantees the right of freedom of association. Given that fact, it follows that trade union meetings and public gatherings will not be refused without good reason. With the suspension of the Internal Security Decree, 1988, the Public Order Act continues to regulate public meetings. By its section 8(1), it provides for applications for public meetings, gatherings and processions to be made to the District Officer of the relevant area. He is required to issue the permit "unless satisfactory good reason that such a meeting or procession is likely to prejudice the maintenance of peace or good order". This discretion is open to judicial review by the High Court.
4. 280. As regards the maltreatment and harassment of unionists when detained in late 1987, the Government states that the incidents referred to have already been acknowledged by the Government. Such incidents undermine both the efforts to return the country to some form of parliamentary democracy and the Government's commitment to humanitarian ideals. According to the Government, in the period following the coups in 1987, civil rights abuses were reported. However, the subsequent promulgation of the Fundamental Rights and Freedoms Decree necessarily commits the Government to the protection of individual rights, including protection of trade unionists, and to applying sanctions in cases where detainees are ill-treated. A number of cases arising out of the incidents have been settled by the State with the parties concerned and others are now before the courts. No complaints as yet appear to have been brought by trade unionists.
5. 281. In reply to the allegation of government attempts to curtail trade union activity in the public sector, it states that the Public Service Commission Regulations, 1987, issued under the Public Service Order, replaced the Public Service Commission (Constitution) Regulations of 1974. The new Regulations specifically remove the right of employees to appeal against promotions of fellow officers and transfers, but it is still open to civil servants to challenge such decisions by way of legal proceedings and several have done so successfully. According to the Government, membership for the Fiji Public Service Association, the union to which most civil servants belong, is not prescribed. The Public Service Commission has withdrawn recognition of the Association although it continues to deal with it on a de facto basis. Relations were exacerbated by the military coups of 1987 and may take some time to heal. At the same time, the Government of Fiji is under an obligation to honour its treaty obligations, and it hopes to comply fully with them as part of the return to some form of parliamentary democracy.
6. 282. The Government notes the Committee's concern expressed in its 268th Report (para. 449) at the wide powers given to the Commission, but would like to point out that since 1974, when the Public Service Act was enacted (with strong support of the Fiji Public Servants Association), the Public Service Commission has been empowered to decide on the "reorganisation of government ministries and departments" including "responsibility for grading posts and implementing training schemes"; decisions on these matters had never been, even under this now repealed 1974 Act, the subject of appeals to the Public Service Appeal Board.
7. 283. As regards the partial reactivation of certain tripartite bodies due in 1989, the Government states that the Wages Councils were reactivated with tripartite representation in late 1989 and to date all have met and agreed upon wage increases. It adds that further meetings are planned for early 1990 when further wage increases will be considered. While the Government is not yet prepared to meet the Fiji Trade Union Congress on matters of mutual concern, it has expressed a willingness to deal with individual unions. As regards the tripartite forum which the Government dispensed with in 1985, a national economic summit was convened in mid-1989 with representation from all sectors of national life. The Government is still to decide whether this consultative process will permanently replace the tripartite forum.
8. 284. The Government states that the continued suspension of the Internal Security Decree of 1988 represents the Government's position that perceived threats to security have receded.
9. 285. The Government explains that the draft Constitution of September 1988 has been referred to a legal expert for incorporation of the recommendations of the Constitution Inquiry and Advisory Committee (known as the "Manueli Committee"). The Manueli Committee presented its findings to the President in May 1989. It recommended a fully elected House of Representatives of 69 seats with 37 for Fijians, 27 for Indians, 4 for General Electors and 1 for Rotumans (Polynesian ethnic group from Rotuma Island). There is also to be an upper chamber to be called the Senate of Chiefs. In making its recommendations, which were rejected by the political parties that formed the last elected Government, the Manueli Committee attempted to balance the need for democratic representation with the post-1987 situation in which the army and powerful sections of Fijian opinion have sought the entrenchment of indigenous political power. The compomise, while unacceptable to many, represents an attempt to adopt an evolutionary approach in returning the country to a fully functioning parliamentary democracy. Implicit in the Manueli Committee's recommendations is the recognition that the process will take some time.
10. 286. The Government supplies a copy of this Constitution Inquiry and Advisory Committee report referred to above. Chairman Manueli's covering statement observes that "these proposals should lead to the building of interdependent, multi-racial, multi-cultural society in Fiji. It could, given goodwill on all sides, ultimately pave the way for a better future". The report reflects oral and written submissions concerning the September 1988 draft Constitution, received by the 17-person Committee from November 1988 to May 1989, including written submissions from the FTUC. It identifies contentious issues (such as the role of religion, the powers of the President, representation of various ethnic groups in the House of Representatives) and makes corresponding recommendations. Recommendation No. 3.169, for example, called for the amendment of the draft Constitution so that the Commander of the Republic of Fiji Military Forces should not be a Member of Parliament and should not hold a ministerial portfolio. Recommendation 4.15 called for the deletion of a section in the draft Constitution which sought to abolish the Public Service Appeals Board.

C. The Committee's conclusions

1. 287. The Committee's first observation is that, on the one hand, despite the Government's public assurances that trade union rights have been fully restored and despite a second visit by representatives of one of the complainant organisations to the country, there appears to have been no marked improvement in the trade union situation since the Committee last examined this case.
2. 288. On the other hand, the Committee observes that the Government's response to its previous recommendations is more positive than negative: the Government clearly regrets the maltreatment of the unionists who were briefly detained in late 1987 and states that sanctions will be applied to offenders in such cases; it stresses that trade union meetings and public gatherings will not be refused "without good reason" that such a meeting or procession is likely to prejudice the maintenance of peace or good order; the Internal Security Decree has not been reactivated; work towards a new Constitution continues, with the recommendations of the Constitution Inquiry and Advisory Committee presently being incorporated into the 1988 draft Constitution (a copy of which was procured for the Committee); and, most importantly, certain tripartite bodies have recommenced work after not meeting for some years (although the Tripartite Forum, the major consultative body, remains suspended since 1984).
3. 289. Given the importance of the tripartite wages councils in Fiji's industrial relations system, the Committee observes with regret that, although high-level government representatives met and talked with FTUC representatives during the October 1989 ICFTU visit, the Government states in its reply of April 1990 that it "is not yet prepared to meet the FTUC on matters of mutual concern". The Committee believes that this hardening of attitude is not conducive to a full restoration of harmonious industrial relations and sits ill with the references made in the Joint Statement and in the Constitution Committee report itself for good will to be shown on all sides.
4. 290. The Committee accordingly calls on the Government to give serious consideration to implementing in practice its professed recognition of the value of having a permanent tripartite mechanism at the national level for consultation and advisory purposes, and to involving the FTUC in any such body. Such a body - whether in the form of the old Tripartite Forum or in one of the forms suggested in the Tripartite Consultation (Activities of the ILO) Recommendation, 1976 (No. 152) - is obviously needed at this time in Fiji. Measures to create such a body cannot but have positive overtones for the Government's relationship with the FTUC leadership and would go a long way towards defusing the tension that lies beneath the surface of industrial relations.
5. 291. Two further issues call for specific comment in the context of the present case. They concern recommendations (b) (Sunday Observance Decree) and (e) (role of the Public Service Commission) of paragraph 458 of the Committee's 268th Report; the Government, while recognising the clear limitations on freedom of association involved, appears to be intransigent. On the first point, the Committee notes the Government's repetition of its position on the Sunday Observance Decree. The Committee trusts that the Government will live up to its undertaking to reconsider this ban on meetings on the Christian Sabbath (even in union premises) in the future "as the country returns to some form of parliamentary democracy". Given the importance attached by the ILO to the right of workers' organisations to meet on their own premises at any time, the Committee requests the Government to take measures to repeal this Decree.
6. 292. On the second point the Committee requests the Government to supply further information on the alleged anti-union stance of the Public Service Commission. It notes with regret that recognition of the Fiji Public Service Association has been withdrawn, although the Association continues to exist and have dealings with its members' employer, namely the Commission. While noting the Government's statement that relations in this area "may take some time to heal", the Committee would recall that, given the dual role of government in this sector, it has a special responsibility to ensure respect for the principles of freedom of association.

The Committee's recommendations

1. 293. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee regrets that, although high-level government representatives met with FTUC representatives during the October 1989 ICFTU visit to Fiji, the Government appears to have hardened its attitude towards meeting the FTUC.
   • (b) The Committee calls on the Government to give serious consideration to implementing in practice its professed recognition of the value of having a permanent tripartite mechanism at the national level for consultation and advisory purposes, and to involving the FTUC in any such body.
   • (c) The Committee notes the Government's stance on the need to maintain the Sunday Observance Decree (which bans all meetings on the Christian Sabbath, even union meetings in the privacy of union premises) and its undertaking to reconsider this ban in the future "as the country returns to some form of parliamentary democracy"; however the Committee requests the Government to take measures to repeal this Decree in view of the importance it attaches to the freedom to hold union meetings.
   • (d) The Committee regrets that the Public Service Commission has withdrawn recognition from the Fiji Public Service Association. It requests the Government to take measures to re-establish the recognition of that Association and to supply its observations on this point.