Informe provisional - Informe núm. 365, Noviembre 2012

Caso núm. 2723 (Fiji) - Fecha de presentación de la queja:: 01-JUL-09 - En seguimiento

Allegations: Dismissal of a trade union leader in the public service education sector and ongoing anti-union harassment and interference with internal trade union affairs

1. 693. The Committee last examined this case at its November 2011 meeting, when it presented an interim report to the Governing Body [362nd Report, paras 809–847 approved by the Governing Body at its 312th Session (November 2011)].
2. 694. The Fiji Trades Union Congress (FTUC) and the Fiji Islands Council of Trade Unions (FICTU) provided written submissions in relation to the matters raised in the complaint to the ILO Direct Contacts Mission that visited Fiji in September 2012.
3. 695. The Government forwarded its observations in a communication dated 28 May 2012 and provided a written brief to the Direct Contacts Mission on 17 September 2012.
4. 696. Fiji has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 697. In its previous examination of the case in November 2011, the Committee made the following recommendations [see 362nd Report, para. 847]:
   • (a) In light of the ongoing reshuffle of the judicial system in Fiji and the apparent absence of any constitutional guarantees, the Committee requests the Government to take the necessary steps to ensure that Mr Koroi is immediately reinstated in his former position as a school principal without loss of pay or benefits and to keep it informed of developments.
   • (b) The Committee urges the Government to refrain from any further interference in the internal affairs of the FTA and to permit Mr Koroi, as its legitimate representative, to carry out his representation functions at the relevant forums, including the Education Forum, the Fiji Teachers’ Registration Board, the JCC and the CSB.
   • (c) Expressing its deep concern at the numerous alleged acts of assault, harassment and intimidation of trade union leaders and members for their exercise of the right to freedom of association, in particular the recent recurring acts of physical assault and harassment against the FTUC National Secretary, the Committee urges the Government to conduct an independent investigation without delay into these incidents and transmit detailed information with regard to its findings and the action taken as a result. The Committee urges the Government to take all necessary measures without delay to ensure, in the future, the full respect of the principles enounced in its conclusions in this respect. With particular regard to the allegation that an act of assault against a trade union leader was perpetrated in retaliation for statements made by the FTUC National Secretary at the ILC, the Committee urges the Government to ensure that no trade unionist suffers retaliation for the exercise of freedom of expression.
   • (d) Alarmed by the arrest on 4 November 2011 and retention in custody without charges of the FTUC National Secretary, by the arrest of the FTUC President on 29 October 2011 and his retention in custody without charges, as well as by the arrest and overnight detention on 3 August 2011 of the FTUC President and the NUHCTIE General Secretary and a NUHCTIE member and the criminal charges of unlawful assembly brought against them on the grounds of failure to observe the terms of the Public Emergency Regulations, the Committee urges the Government to take full account of the principles enounced in its conclusions in the future, and urges the Government to take the necessary measures to ensure that the FTUC National Secretary and the FTUC President are immediately released from custody and that all charges against them and the NUHCTIE members are immediately dropped, and to keep it informed of any developments in this regard without delay, including the outcome of the hearing on 31 October 2011.
   • (e) With regard to the alleged search of the union office and of the FTUC National Secretary’s home by the police, the Committee requests the Government to provide its observations on this allegation.
   • (f) Stressing that freedom of assembly and freedom of opinion and expression are a sine qua non for the exercise of freedom of association, the Committee urges the Government to take full account of the principles enounced in its conclusions in the future and refrain from unduly impeding the lawful exercise of trade union rights. It further requests the Government to provide detailed information without delay in reply to the FICTU communication dated 23 September 2011, and in particular as regards the impact of the PER on freedom of association and the alleged general ban on trade union meetings.
   • (g) As regards the alleged infringement of trade union rights by executive decrees, especially targeting workers in the public service, the Committee urges the Government to take all necessary measures to ensure that public servants enjoy the guarantees enshrined in Convention No. 87, to amend the relevant decrees without delay so as to guarantee access to courts, and to ensure, in the future, that prior consultations are undertaken with the relevant trade unions on proposed legislation affecting trade union rights.
   • (h) With particular regard to the Essential National Industries (Employment) Decree, which has entered into force on 9 September 2011, and considering that it gives rise to a number of violations of Conventions Nos 87 and 98 and the principles on freedom of association and collective bargaining, the Committee deeply regrets the issuance on 8 September 2011 of the implementing regulations under section 31 of the Decree and urges the Government to amend its provisions without delay, in full consultation with the social partners, so as to bring it into conformity with Conventions Nos 87 and 98, ratified by Fiji. The Committee requests the Government to keep it informed of the steps taken in this regard.
   • (i) The Committee also requests the Government to take the necessary measures to ensure that the check-off facility continues to be granted to trade unions in the public sector and the relevant sectors considered as “essential national industries”.
   • (j) Given the seriousness of the complainants’ allegations and the absence of a complete picture of the situation on the ground, the Committee urges the Government to accept a direct contacts mission to the country in order to clarify the facts and assist the Government in finding, together with the social partners, appropriate solutions in conformity with freedom of association principles.
   • (k) The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
   • (l) The Committee also draws the special attention of the Governing Body to this case because of the extreme seriousness and urgency of the matters dealt with therein.

B. The complainants’ new allegations

1. Allegations of the FICTU

1. 698. Recalling its previous communications on its behalf and of its affiliate, the FTA, the FICTU provides a brief report on the current status of the matters covered in the complaint.
2. 699. As regards the employment-related decrees, the complainant organization informs that Essential National Industries Decree No. 35 of 2011 and all other decrees violating workers’ rights continue in force with serious effects on workers and trade unions in the affected industries and companies. In the communication sector, the Communications, Mining and General Workers Union (CMGWU) represents workers at Telecom Fiji Limited (TFL). Following the Essential National Industries Decree, the union registered a bargaining unit at that company in compliance with that Decree. The bargaining unit sought to bargain with the employer but, to date, the employer has not commenced bargaining despite several written and verbal requests attached to the submission. The complainant believes that bargaining is unlikely to begin any time soon given that the decree allows for a three-year period of bargaining. In the meantime, the employer has made unilateral changes to workers’ employment conditions and benefits and has made some workers redundant without consultation or compensation. Check-off facilities have continued but the union remains at the mercy of the employer unless an agreement is concluded. During this period, union membership has declined by approximately 150 members and is continuing to diminish.
3. 700. The complainant further indicates that the Telecommunication Employees Association (TEA) used to represent members at Fiji International Telecom Limited (FINTEL) and Fiji Broadcasting Corporation (FBC). The union’s combined membership was less than 75, the threshold to form bargaining units under the Essential National Industries Decree. As a result, the TEA was unable to form bargaining units at either of the two companies and had to be voluntarily dissolved. These workers are now unrepresented and employed on individual contracts.
4. 701. In the transport sector, the Transport Workers Union (TWU) represented workers at Air Pacific and Pacific Sun. The complainant reports that the union could not form a bargaining unit at Pacific Sun because it could not meet the threshold requirement of 75 workers. These workers are now without representation. At Air Pacific, only cabin crew had the number of members required to form a bargaining unit under the Essential National Industries Decree. The cabin crew bargaining unit has entered into an agreement with the airline but had to forego conditions and benefits to this end. According to the complainant, the bargaining unit has very close association with the airlines management and has been obviously influenced by the airline to break links with the TWU. As a result, the bargaining unit has failed to remit union membership fees deducted at source to the union. The union has also had to close its office and now operates from the general secretary’s residence.
5. 702. The complainant states that, in the banking sector, the FBFSU has been seriously affected by the Essential National Industries Decree. The union has lost around 400 members and has yet to conclude any agreement with the employers.
6. 703. With respect to the Public Emergency Regulation (PER), they have been lifted but the complainant alleges that restrictions on freedom of assembly are now enforced through the Public Order (Amendment) Decree (POAD). In recent months, the Government suspended the POAD following pressure from the union movement, political parties and the recently appointed Constitutional Commission to allow for consultation on constitutional development. However, the complainant believes that the meeting restrictions will be restored soon after the Constitutional Commission completes the public hearings, around mid-October.
7. 704. As for the freedom of media, the complainant states that Fiji’s media is not free and alleges that, whilst the regime boasts of a free media and calls on media to report freely, agents of the regime contact the different media outlets directly to instruct them on what not to report. Three recent media statements sent by FICTU on the minimum wage debate in the country were not reported anywhere despite being sent directly to individual journalists and the official news addresses of media organizations.
8. 705. Concerning the Employment Relations Advisory Board (ERAB), the FICTU is not represented in the ERAB. The complainant organization indicates that, according to the information available to it, some discussions were held regarding the decrees; however, there has been no outcome, and it is believed that these discussions have ended.
9. 706. With reference to Mr Tevita Koroi, President of the FTA, the complainant informs that he remains dismissed despite the strong recommendation for his reinstatement by the ILO. He is said to have left the country due to financial constraints.
10. 707. As regards public sector unions, the complainant organization alleges that their check-off facilities have been discontinued. This has severely affected the finances of these unions. The situation is unlikely to improve in the near future.
11. 708. With respect to dispute resolution, the complainant states that all workers and unions affected by the Essential National Industries Decree and other employment-related decrees are unable to access the dispute resolutions mechanism under the 2007 Employment Relations Promulgation (ERP), Fiji’s core labour legislation under which the mediation services and employment tribunal are established. All disputes which were pending resolution at the time of issuance of the relevant decrees have since been terminated without resolution.

2. Allegations of the FTUC

1. 709. The complainant states that, since the military takeover in 2006, the Government has made trade unions its specific target and sought to undermine their very existence, and that the ensuing decrees were promulgated to decimate the union movement altogether. According to the complainant, the Government has given false and repeated promises to the ILO, the European Union, the Commonwealth, the Pacific Forum Ministerial Contact Group and other international institutions that trade union rights are intact, while every attempt was made to trample on trade unions rights established in a number of ILO Conventions, in particular the right to organize and collectively bargain and to take industrial action. The complainant believes that the Government is violating basic human and trade union rights and all the ILO core Conventions, and that, given the antipathy of this regime, the trade unions will have to continue fighting hard to survive.
2. 710. The complainant indicates that, since the abrogation of the Constitution in April 2009, the Government introduced a series of decrees designed to curtail basic trade union rights along with other measures to suppress any dissenting views. According to the complainant, the media law promulgated by the regime has stifled the voice of Fiji citizens; the PER made meetings of more than three people illegal without a permit, and the POAD replacing the PER is even worse. The complainant adds, however, that on 19 July 2012, the Government announced the suspension of section 8 of the Public Order Act as amended by the POAD, which requires permits for meetings in public places, until the Constitutional Commission hands over a draft copy of Fiji’s new Constitution to the President.
3. 711. According to the complainant, the continued emergence of decrees to restrict trade unions from exercising universally accepted principles and legislated rights at work has affected employment both in the public and private sector. Loss of jobs and economic stagnation have created havoc to such an extent that more than 50 per cent of the population live in poverty. The sharp increases in food prices and escalating cost of utilities like power and water have hit the low-income earners and the underprivileged the hardest (wage adjustments have not kept up with inflationary movements). These factors are causing misery and hardship on a scale never experienced before in Fiji causing the most devastating impact on the lives of ordinary people, while the regime is projecting itself as a stabilizing force that will help the country to constitutional democracy, community reconciliation and economic reconstruction. Unfortunately, it has failed to win the support and the confidence of the people to rebuild the country with the brand of “democracy.”
4. 712. The complainant further states that the main reason for the military takeover in December 2006 was to weed out corruption not only in corridors of power but in every facet of governance in Fiji. After almost five and a half years, corruption, nepotism and self-enrichment have become the order of the day. Despite being unelected, the regime has made it clear that it intends to hold the reins of government until 2014 or possibly longer. It has made enormous policy interventions that are totally unacceptable in a civilized world by making changes to laws relating to land, labour, taxation, judiciary, public services and against trade unions.
5. 713. The complainant raises the following specific concerns about actions of the Government that have led to more obstacles for workers.

Decrees Nos 9 and 10 of 2009 and 21 of 2011

1. 714. The complainant indicates that, since the abrogation of the Constitution, the Government has issued a series of decrees which have had a major impact on workers and trade unions; for the latter, it became a matter of survival. Initially the decrees focused particularly on the public service. Decrees Nos 9 and 10 of 2009 (Administration of Justice) terminated dozens of existing and pending grievances filed by public service employees. These decrees also prevented the public sector unions from negotiating any changes or upgrading the benefits of workers via collective bargaining. The State Services Decree No. 6 of 2009 abolished the Public Service Appeal Board and terminated all cases before it, and forcibly reduced the public service retirement age from 60 to 55, requiring the departure of some 2,000 staff from the public service. Decree No. 21 of 16 May 2011 revising the ERP was a decree of exclusion since one of its effects was to exclude 15,000 public service workers from the scope of labour law.
2. 715. According to the complainant, the public sector unions have been deprived of representing or defending their members in situations of discrimination since they are now excluded from the scope of the ERP. There is therefore no possible recourse against cases of discrimination or sexual harassment or any means of seeking maternity protection. Indeed, following the introduction of new section 266 in the ERP, the aforementioned workers no longer had any legal basis for claiming their rights. Not only is this contrary to Convention No. 111, but these workers have been further stripped of their right to be defended through the withdrawal of certain areas from the courts’ sphere of competence. There is no forum where public officers can raise their grievances, and the FTUC, as the trade union representing the majority of employees in the public service, has on record the numerous grievances raised by its members on individual contracts. The FTUC has even filed judicial reviews on the issue of contractual appointment but the abovementioned decrees terminated the applications as there can be no challenge against the decisions of the Public Service Commission (PSC) to reform, restructure or change the terms and conditions of employment of officers in the public service. The complainant believes that this situation is an outright breach of Conventions Nos 87 and 98 as well as protection against discrimination. The fundamental principles of natural justice have been denied in the public service.

Essential National Industries Decree No. 35 of 2011

1. 716. The complainant recalls that the Essential National Industries Decree was gazetted on 29 July 2011. On 9 September 2011, the Government issued a gazette notice containing regulations to implement the Decree with immediate effect. The following four industries and 11 corporations came under the Decree: (1) financial industry: (i) Australia and New Zealand Banking Group (ANZ); (ii) Bank of Baroda (BoB); (iii) Bank of South Pacific (BSP); (iv) Westpac Banking Corporation (WBC); and (v) Fiji Revenue and Customs Authority (FRCA); (2) telecommunications industry: (vi) Fiji International Telecom Limited (FINTEL); (vii) Telecom Fiji Limited (TFL); and (viii) Fiji Broadcasting Corporation (FBC); (3) civil aviation industry: (ix) Air Pacific; and (4) public utilities industry: (x) Fiji Electricity Authority; and (xi) Water Authority of Fiji (WAF).
2. 717. The complainant reports that the following trade unions are currently affected by the Decree: (i) Fiji Public Service Association (FPSA) representing workers in FRCA and WAF; (ii) Fiji Bank and Finance Sector Union (FBFSU) with members in ANZ, BoB, BSP and Westpac; (iii) Transport Workers Union (TWU) with staff of Air Pacific; and (iv) Fiji Post and Telecom Employees Association (FPTEA) covering FINTEL and TFL.
3. 718. The complainant recalls that the Decree prescribes drastic obstacles to trade unions continuing to represent workers in accordance with the ERP. It outlaws professional trade unionists, eliminates existing collective agreements, promotes a biased system of non-professional bargaining agents to represent workers, severely restricts industrial action, strengthens sanctions against legally striking workers and bans overtime payments and other allowances for workers in 24-hour operations.

Effects of decrees on certain trade unions, their members and workers

Fiji Bank and Finance Sector Employees Union (FBFSU)

1. 719. As regards the FBFSU, the union has members in the four foreign banks in Fiji and has been gravely affected by the Decree. The union believes that the Government was lobbied by the expatriate management to bring the four banks from overseas as the only private sector corporations under the Decree, so that they would be able to ignore or get away from the collective agreements signed between the union and the banks.
2. 720. Since the Decree, the union has suffered a net loss of around 450 members including 40 recent redundancies by the ANZ, i.e. a direct loss of around F$60,000 (FJD) in subscription income. The remaining income is tenuous as the employers have the option to cease check-off facilities at any time. More than half of the loss has been at one bank, the BSP. The union had to reduce secretariat staff by two, cut costs generally, reschedule loan repayments etc.
3. 721. There is no collective bargaining with the union. Nine months after the Decree came into force, only two bargaining units have been registered, i.e. at BoB and ANZ. No units have been registered yet in Westpac and BSP even though applications were made eight or nine months ago. At BoB, some renegotiation commenced with bargaining unit representatives but without success as the bank did not want to talk about outstanding cost of living adjustment (COLA). The bank even threatened to impose the changes if representatives did not speed up agreement on changes to conditions that the bank was demanding. The ANZ bargaining unit was registered in December 2011 but subsequently deregistered upon pressure from the bank. The new registration has been done on ANZ’s terms after excluding a large number of workers at ANZ Pacific Operations. The COLA from last year has been left in abeyance as the bank seeks to impose a new pay system. There has been no progress in discussions as the representatives lack skills and understanding and are reluctant to make any commitments on behalf of staff.
4. 722. Generally, the complainant states that the delay in collective bargaining works in the employer’s favour as the union loses membership and contracts are being imposed on new employees. Old grievances and disputes have been terminated, and new grievances are not being processed since employers do not want to appoint internal review officers under the Decree; even if they did, workers have no recourse to independent adjudication. Terminated grievances include several dismissals waiting for decisions for several years, a number of contractual disputes/grievances involving thousands of dollars for individuals and changes to working conditions, as well as several major salary disputes worth around F$l million to staff. Police and military intelligence are present in union general meetings. Union officials regularly get visits from them and “polite” queries on the union’s activities and views on certain issues.

Transport Workers Union (TWU)

1. 723. The complainant indicates that, prior to the Decree, the membership of the TWU (580) was mainly composed of employees of Air Pacific (Air Pacific Ground Staff – 250 (43.1 per cent); Air Pacific Cabin Crew – 240 (41.4 per cent); and Other Institutions – 90 (15.5 per cent). The annual subscriptions income has been approximately F$124,000 which is a little over F$10,300 monthly. On 5 October 2011, Air Pacific stopped the deduction of union fees for employees on weekly payroll, and on 12 October 2011, for employees on fortnightly payroll. Air Pacific has continued the union fee deduction for cabin crew until today. Around mid-December 2011, however, Air Pacific stopped remitting the cabin crew union fees to the TWU and, instead, wrote cheques payable to the Air Pacific Flight Attendants Bargaining Unit. The union’s many attempts to convince the bargaining unit to redirect the funds to the union were not accepted by the representatives. They have since opened up their own bank account where they deposit these funds. According to the complainant, it has now become clear that the bargaining unit has been influenced by Air Pacific management into disassociating themselves from the TWU. The Chairman of the bargaining unit has had several personal meetings with the Chief Executive Officer of Air Pacific.
2. 724. The complainant states that the Decree and the decision by cabin crew to disassociate themselves from the TWU has had a great effect on the union’s finances. All efforts are made at reducing costs. The union is diverting its efforts to organize new areas such as road transport, to bring in new members.

Fiji Post and Telecom Employees Association (FPTEA)

1. 725. According to the complainant, the FPTEA has tried to register a bargaining unit as prescribed in the Decree but no positive response has been received and the members have been waiting for government action for the last nine months. In the meantime, the Association has lost 15 per cent of its membership due to redundancy in various sections of the company’s operation. The voluntary “check-off” is continuing without any written agreement. The FPTEA’s requests to enter into an agreement for subscription deduction has been flatly refused. There is no collective bargaining but on the other hand the collective agreement is being changed at the management’s whim and individual contracts are the norms for appointments and promotions.

Fiji Sugar and General Workers Union (FSGWU)

1. 726. The complainant alleges that, while not covered by the Decree, all its effects are very much applied by the Fiji Sugar Corporation (FSC). There is no acknowledgment, dialogue, collective bargaining or contact with the FSGWU, except for the fact that recently the Chief Executive of the company visited the General Secretary of the union in his office to confirm that there will be no collective bargaining and the management will make decisions unilaterally, and to caution that if need be the Government will bring the sugar industry under the Decree. In the complainant’s view, this is a clear threat and intimidation for the union to remain dormant. The only relief so far is that union subscription is still being deducted by the company and paid to the union.

Fiji Public Service Association (FPSA)

1. 727. The complainant indicates that, at present, public sector unions are barely surviving without union subscription deductions and with membership dwindling day by day. Decree No. 21 of 2011 has removed not only the whole of the ERP provisions from 16,000 union members, but the Government ceased the check-off facility in full for approximately 2,050 salaried and 5,000 hourly paid members from the public service. Two months later, after due submissions, part of the subscription was restored to cater for members’ welfare contributions. Thus 25 per cent of subscription fees from this sector will be in arrears and payable by members via other means, as best feasible. Severe difficulties are faced in acquiring the full amount of subscription fees.
2. 728. The complainant further states that, due to the effects of the Essential National Industries Decree, there has been a serious decline in membership for all public sector unions. For example, following the Decree, the FPSA lost all of its members in the FRCA and WAF, totalling in excess of 2,500. Efforts to restore their status to normal are not producing any result. The FPSA has embarked on a cost reduction exercise to trim down the outlays in many areas, including a reduction in staffing.
3. 729. The complainant indicates that, even in normal times, most employers, including the PSC, would be reluctant and drag their feet during the collective bargaining process. In some individual and collective grievances or disputes, unions previously had to resort to other dispute settlement machinery or process to obtain redress or results under the ERP.
4. 730. However, since 2009, according to the complainant, the PSC has ceased to contact, respond or negotiate with the public sector unions. The Public Service Appeals Board was repealed, and only an inefficient and partisan Disciplinary Tribunal was later made available. All collective issues, e.g. COLA, were no longer entertained. Individual cases from the public service were being referred by unions to the procedure under the ERP with substantial success, until they were also terminated by Decree No. 21 of 2011. With the exclusion of the whole of the public service from the ERP, union members are completely deprived of any protective law and they are at the mercy of the employer. The PSC and Government entities like FRCA and WAF have completely withdrawn from any form of collective bargaining.
5. 731. The complainant indicates that the staff of Government statutory bodies or Government commercial companies and private sector workers still have the right to approach the ERP institutions with their grievances, since they are not yet subject to the above decrees although the authorities retain the right to make them so. Such union members’ grievances are reported via the ERP processes but due to increase in the workload of the ERP mediation and tribunal forums, progress is slow in many cases.

ACTU fact-finding mission denied entry into Fiji

1. 732. According to the complainant, the Government’s much touted challenge to overseas unions to visit Fiji and see the reality on the ground fell flat and resulted in public embarrassment when the ACTU/NZCTU fact-finding mission in December 2011 was banned and the delegation was not allowed to enter the country and put back immediately on the flight it came in under claims that the delegation would be biased and unfair.

Media

1. 733. The complainant indicates that the Fiji Media Decree imposes strict controls on print and other media reporting anything against the current regime, in complete defiance of principles of press freedom. The Media Decree has also limited individual freedom of speech on essential and critical issues and the fear of intimidation still exists. No views expressed contrary to that of the Government are published or aired on radio or television.
2. 734. The complainant alleges that media censorship continues unabated, undermining basic human rights. Although the Government censors are no longer in newsrooms, media censorship has now taken the far more invidious form of “self-censorship”, driven by continuing intimidation of journalists and media owners. According to the FTUC, the media is not only dropping stories against the regime but for more than a year it has also been refusing to take articles from anyone who they assess may be out of favour with the Government. Television and radio media have been effectively banned from running interviews with selected political leaders, trade unionists, and those perceived to be against the regime, depriving the public of independent professional opinions and commentaries, which can enlighten them on critical issues of public interest.

Judiciary

1. 735. The complainant further expresses concerns about the practice in the judiciary especially in the following critical areas: (i) appointment of judges: the sourcing of judges from one particular country has raised questions when there are qualified individuals available elsewhere; (ii) independence: some judges are found to have linkages that question their independence and neutrality when presiding over cases; (iii) qualifications of certain appointed judges and magistrates are questionable; (iv) transparency in the appointment of judges and magistrates; (v) consistency on the appointments: ad hoc terminations and resignations without any given explanation continue to plague the legal system; in many cases, such action is taken if instructions or wishes of the Government are not met by the court.

Peoples Charter and the return to democracy

1. 736. According to the complainant, the Government has paraded on the international scene promoting its way forward as the “Peoples Charter” which plans to build a stronger democracy through promoting unity between different cultures and races. The reality is that there is absolutely no transparency or accountability in Government today. All democratic institutions like the political parties, Town and City Councils, the Cane Growers Councils, the Provincial Councils, Churches and Trade Union organizations are being either hindered from carrying out their rightful roles or are totally denied from exercising their rights. The Government is attempting to demolish all democratic structures and institutions existing in Fiji. The complainant does not believe that a stronger democratic Fiji can be built by demolishing all democratic institutions.
2. 737. Similarly, the complainant alleges that the appointment of military officers to senior civil service positions becomes more regular. Currently all District Commissioners are military officers. Senior District officers are military officers. A number of Permanent Secretaries are military officers and the list goes on. The militarization of the civil service illustrates that Fiji has moved closer to absolute dictatorship rather than a step closer to democracy.

Human rights

1. 738. The Government has embarked since 2006 on a systematic plan to intimidate and harass citizens who in any way show opposition or express discontent with the regime. Many representatives from non-governmental organizations and trade unions have been forcefully taken to military camps and intimidated. This includes some politicians as well.
2. 739. More recently, the assault and harassment of trade union leaders has affected the activists and members generally. Felix Anthony, National Secretary of the FTUC and his two union officials were severely assaulted on 18 February 2011. Mr Anthony’s ear drum was damaged as a result of the beating. They were released from military custody with threats of further violence. The FTUC President, Daniel Urai, has two cases pending in Court, one for talking to his members on pay increase issues and the other one for having allegedly committed treason. In the first case which has been pending for almost a year, the prosecution has not been able to identify the complainant nor have they produced any disclosures for the offence.

Removal of FTUC representative from Air Terminal Services (ATS) Board

1. 740. The complainant indicates that the FTUC Assistant National Secretary Rajeshwar Singh represents the FTUC on the ATS Board. The ATS Employees Trust appointed Mr Singh as the Chairman of the Trust and elected him in December 2011 to represent them on the ATS Board. The Trust has 49 per cent shareholding and the Government has 51 per cent. The complainant alleges that Mr Singh was removed from the Board on 31 December 2011 by the Government on the grounds that he addressed trade union meetings in Australia and allegedly requested unions to boycott tourism in Fiji and ground handling of Air Pacific in Australia. According to the complainant, this was a blatant lie perpetrated by the Government in order to remove Mr Singh from the ATS Board. No evidence of the allegations has been provided. In the complainant’s view, the Government has a wholesale license to make personal and defamatory remarks against their opponents as and when suitable.

Constitutional Commission

1. 741. The Constitutional Commission has started its work hearing submissions from the members of the public, political parties and interested organizations. According to the complainant, the strong and clear message from the Government is that in the making of the new Constitution there will be non-negotiable issues, and the Government will manoeuvre the process so as to retain power at any cost. The public will not have a sense of ownership of the process but they would be mere bystanders in the whole saga. In the complainant’s view, the Government’s propaganda of public participation, inclusiveness in representation, transparency and national ownership is only a farce if civil society groups and political leaders are admonished and almost threatened for their views by none other than the military personnel. The complainant indicates that the Constituent Assembly will be handpicked by the Prime Minister and will not be a free and fair selection of individuals. After the Constituent Assembly hands the draft Constitution to the President, it will go to a panel of five judges to be chaired by the Chief Justice with two overseas judges who will then scrutinize it to find whether the 11 non-negotiable principles have been included in the Constitution. The draft Constitution will be handed to the President for his assent. According to the complainant, the process outlined above shows that in each and every step the Government has control of what would be in the Constitution.
2. 742. The complainant indicates that the Commission stated that it was undesirable to write immunity for the coup makers into the Constitution, and that controls on the media, lack of court access and the wide reaching powers of the security forces were particularly worrying; in response, the Government claimed that the new decrees set out the framework for a free, fair, and open constitutional process, that immunity was common in nations promoting reconciliation, that having the Prime Minister decide who could sit in the Constituent Assembly would ensure that a broadly representative body was formed, and that the Commission was outside of its mandate and wrong in its claims because the media and the courts were independent and the security forces were subject to the country’s laws.

Workers to be jobless

1. 743. The complainant informs that a New Zealand-based company has been granted approval through the Fiji Roads Authority Decree to take over a fully fledged Department of National Roads (DNR), a public owned entity, without any transparent tendering process or evaluation of any competitive bid. According to the foreign company’s transition plan some 2,000 workers are due to lose their jobs as early as 31 December 2012. The Government’s response to the public sector unions’ concern for the 2,000 employees was treated casually as it responded by stating that like all other reforms it had an effect on workers and government was looking for opportunities and doing its best to ensure the needs of workers were accommodated.
2. 744. The complainant indicates that it is appalling to imagine what is going to happen to 2,000 redundant workers in a country where the poverty level has reached an alarming 50 per cent, the food prices are rising (90 per cent in six years), utility bills are bulging (electricity charges increased by 87 per cent and gas prices by 67 per cent) and inflation is skyrocketing. According to the complainant, whereas the Government seemed to believe that national roads would improve by engaging an outside company, the only reason why roads have not been improving is that the request for road maintenance programmes have fallen on deaf ears. In the complainant’s view, the funding that the Government is giving to the foreign company should have been provided to DNR so that national workers can build better roads and remain employed. The redundancy of approximately 2,000 workers is a disaster waiting to happen.

Appointment in civil service open to convicted criminals and nepotism

1. 745. The complainant states that the General Orders in Civil Service have been unilaterally amended to allow in section 206 the appointment of a Minister’s wife, son, daughter, father, mother, brother or sister; of a convicted criminal or of a person dismissed earlier from the public service, in case of a recommendation to the Public Service Commission by a Permanent Secretary or a head of department.
2. 746. According to the complainant, the Fiji public service is already militarized, particularly at higher echelons of the service such as Permanent Secretaries, Divisional Commissioners, directors and heads of departments. In the complainant’s view, the morale in the civil service is at its lowest as it is under the command of senior military officers dishing out orders in breach of rules and regulations, without the availability of any legal or administrative recourse; the Fiji public service currently exists at the behest of the military regime.

Minimum wages put on hold

1. 747. The complainant adds that the Government has decided to put on hold the ten new Wages Regulations Orders 2012 until 31 October 2012. The Wages Council made three submissions in the last four years seeking an increase in the wages for workers but this matter was deferred by the Government every time. Many studies in the past had proven that low wages in Fiji were one of the biggest factors leading to poverty. Workers in Fiji have been suffering long enough due to low wages over the years. The criteria used for elaborating the wage orders are those established in relevant ILO Conventions, namely the needs of workers and their families, the cost of living, the general level of wages in the country, social security benefits and economic factors. The complainant feels that the call for a just living wage is not an appeal for charity or good will; it is a call for justice.
2. 748. In conclusion, the complainant believes that the social and economic disaster facing Fiji is fast unfolding: unemployment is at its peak; the number of working poor continues to rise unabated; more homes are on mortgage sale; workers in all sectors are losing their jobs; cane farmers are no longer interested in farming and are leaving their farms to seek other forms of livelihood as collapse of the sugar industry is imminent; health care services are declining; corruption is rampant in the corridors of power; people with skills and money are migrating; poverty continues to rise with no less than 50 per cent of the population living below the poverty line; there has been an increase in squatter settlements around the semi-urban areas; and unemployment has risen to 11.9 per cent (unofficial), with the real unemployment rate predicted to be over 15 per cent (excluding underemployment).
3. 749. According to the complainant, the human and trade union rights situation in Fiji has been steadily deteriorating at an ever increasing pace, and there is little or no hope of a return to democracy and revocation of draconian decrees against the trade unions. The complainant therefore calls for the following: (i) all draconian decrees should be withdrawn so that trade unions are able to operate and protect the rights of their members; (ii) all ILO core Conventions which Fiji has ratified should be observed and respected with sincerity; and (iii) the ILO should continue to engage with the Government until concrete action is taken to respect human and trade union rights in Fiji.

C. The Government’s replies

1. 750. As regards the recommendation made by the Committee on Freedom of Association to reinstate Mr Koroi, President of the FTA, the Government indicates in its communication dated 28 May 2012 that this recommendation will be tabled at the tripartite ERAB for its deliberation and advice to the Minister for Labour, Industrial Relations and Employment.
2. 751. Concerning the alleged physical attacks on trade unionists, the Government states that, like most responsible governments, it has check-and-balance processes in place to ensure citizens’ rights are protected. These include in cases with allegations of a criminal nature requiring first a complaint to be lodged with the police department and/or the public prosecutor in order for a proper investigation to be conducted into the truth of the allegations and due process followed. To date, neither the Police Department nor the Office of Public Prosecutions has received any complaint filed by Mr Felix Anthony, National Secretary of the FTUC and General Secretary of the Fiji Sugar Workers Union, or Mr Mohammed Khalil for the alleged physical assaults. Therefore investigations have not been initiated and no specific observations can be provided in this regard. Internal legal mechanisms within the country itself have thus not been fully utilized by these two persons. The Government reaffirms its commitment to enhancing human rights for all its people, irrespective of race, religion or affiliation. Repealing the PER, restoring the POAD and initiating a dialogue with the Fijian unions about the repeal of decrees and the road to free and fair elections in 2014 are among the meaningful indicators of the Government’s sincerity and conviction to pursue democracy transparently, fairly and inclusively.
3. 752. With respect to the alleged arrest and detention of trade unionists, the Government provides the following summary of events: 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 PER. Union members employed by the resort confirmed that they made inciting remarks against the Government of Fiji specifically the Prime Minister and the Attorney General, in particular that all union members should stand together in order to request overseas counterparts to pursue a trade ban against Fiji. Police conducted investigations into the complaints and arrested the two trade unionists at the resort and escorted them to Nadi Police Station. They were detained for questioning in the Police Conference Room (rather than in locked cells as has been erroneously reported) in the Nadi Police Station for one day. Mr Goundar and Mr Urai were charged on 4 August 2011. By their own admissions, 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 that could be interpreted to be inciteful. It should be noted that at no time were the two unionists coerced, threatened or assaulted and proper procedures were followed in their arrest and subsequent charging. They have been charged for breaches under the PER and are in the process of having their case heard. The case is set for mention on 4 June 2012. Further, in its ruling on 7 May 2012, the Chief Magistrate allowed Mr Urai to leave the jurisdiction from 13 to 19 May 2012 to attend the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Worker’s Association meeting in Geneva, despite the contention of the Director of the Public Prosecutions that the charge was serious, the accused had an incentive to abscond, and the security of the nation could be severely undermined if he was allowed to travel overseas for fear of organizing international disaffection against the State.
4. 753. In regard to the recommendation relating to freedom of assembly and expression, the Government highlights that the PER, which imposed certain restrictions on public meetings, have been lifted as of 7 January 2012 and that Fiji is now once again guided by the Public Order Act, which has been in force in Fiji since independence (1970) and has been modernized through the POAD 2012. The removal of the PER is an important step as Fiji is currently developing its new constitution to be ready by early 2013 through an inclusive national dialogue towards the first non-race based democratic elections in 2014. Since the announcement of the POAD, the Fijian Police Commissioner has proactively invited the leadership of Fijian unions, along with other civil society groups, to an open discussion about the repeal of the emergency restrictions to establish an ongoing dialogue; the Government indicates that these actions have been met positively. Notwithstanding the above, the Government stresses that even during the period in which the PER were in force, it did not prohibit trade unions from convening meetings so long as they abided by the conditions required to hold a public meeting. In fact, the Government received requests for and approved numerous permits over the last five years. Freedom or rights come with responsibilities for one’s action(s) or failure to act in any given scenario. For any public meeting to occur, the relevant permit would need to be applied for to the Divisional Commissioner stating the purpose of the meeting, the date, time and venue of the meeting. The meeting would only occur once consent has been given by the relevant Divisional Commissioner. This procedure was in place prior to the introduction of the PER and was well known amongst trade union executives. The Government states that, 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 – a goal which is shared by the Government.
5. 754. As regards the right to recourse of public servants, according to the Government, all public servants in Fiji enjoy the same employment rights as those in the private sector. This has been made possible by the passing of the Public Service (Amendment) Decree (Decree No. 36) which encapsulates similar employment safeguard mechanisms as those in the ERP. The Government further indicates that 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. For example, in the State v. Permanent Secretary for Works, Transport and Public Utilities ex parte Rusiate Tubunaruarua & Ors HBJ01 of 2012, 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, including any decision to terminate their employment or to suspend them. 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 accredited training of these new conciliators has been conducted by the mediation service of the Ministry of Labour starting on 11 May 2012. Important employment issues such as sexual harassment grievances in the workplace are addressed internally through the passing of policies to positively address such matters before external measures are attempted. This has been made possible through the work of the PSC, as the employer for public servants, together with the active discussions taking place at the tripartite ERAB. Also, the updating of the PSC General Orders 2011 has enabled public servants to enjoy similar if not better leave entitlements than those in the private sector.

Essential National Industries Decree

1. 755. With respect to the comments concerning the Essential National Industries Decree, the Government informs that a national peak tripartite body known as the ERAB has agreed at its meetings of 11 April and 9 May 2012 to, inter alia, review all Government decrees relating to labour (including Decrees Nos 21 and 35) relative to the ILO core Conventions, with a view to recommending to the Labour Minister policy advice to bring all labour laws in line with the eight core Conventions, the four priority Conventions and other Conventions that Fiji has ratified, including the Conventions that the Cabinet has recently approved for ratification (the Maritime Labour Convention, 2006, the Maternity Protection Convention, 2000 (No. 183), the Human Resources Development Convention, 1975 (No. 142) and the Private Employment Agencies Convention, 1997 (No. 181)) and those to be approved for ratification on 4 June 2012. Thus, an ERAB subcommittee will be going through all decrees, proposals for amendments of the ERP and issues raised by the Committee and then submit proposals to the Board for endorsement. The Government renews its commitment to honour its obligations under the core ILO Conventions in the new Constitution. 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 next year, paving the way for the general election in 2014.
2. 756. As regards the content of the Decree and its implementing regulations, the Government believes that the Decree sets forth realistic and balanced requirements for both employers and labour representatives. The purpose is to help create growth and long-term viability for companies essential to Fiji and, in doing so, protect jobs and ensure fundamental workers’ rights. As other developed countries with similar labour laws governing essential industries have demonstrated, these are not mutually exclusive goals. The Government takes providing for and protecting workers’ rights very seriously. It is important to emphasize that the rights protected and extended to workers of industries provided for in the Decree include the right to form and join unions, the right to vote in secret ballot elections, the right to strike, the right to collectively bargain and the duty of corporations and labour unions to renegotiate bargaining agreements in good faith; the right to a well-defined dispute resolution process; and the right to receive overtime pay. As Fijians prepare to take the necessary steps to vote in the country’s Parliamentary elections in 2014, the Government intends to ensure that they continue to benefit from the fundamental guarantees for essential human rights and employment protections recognized by principled Governments and labour and social organizations all around the world. The Government states that it is working with the declared industries and their labour representatives to promote these rights.
3. 757. Generally, the Government stresses that the Decree is not a unique piece of legislation; it is comparable, in the main, with respect to its key provisions and principles to other major developed countries. As to the scope of the Decree, the Government states that it is limited to essential national industries. Only companies within industries that are vital to the Fiji economy, or in which the Government has a majority and essential interest, may be brought within its scope. It will not apply to the vast majority of employers in Fiji. It is incorrect to claim that the Decree will be “extended to cover all unions in all sectors of Fiji’s economy”. This is not the intention, and it would not be permitted by the Decree itself.
4. 758. According to the Government, it is certainly not the case, as has been claimed, that the Decree “abolishes all existing trade unions in Fiji”. In companies within essential national industries designated under the Decree, workers can still join a trade union, and have that union recognized for the purpose of collective bargaining if a majority of workers clearly want that. Where that happens, the employer is obliged to recognize and negotiate in good faith with the union representatives. Workers who do not want to be represented by a trade union must also have that freedom. The Decree strikes a balance between the interests of all workers. The Decree contains the concept of “bargaining unit” which is found in other countries’ laws. The bargaining unit does not “replace trade unions” as has been claimed – the two are quite different concepts. Trade unions will continue to exist and can represent workers within a bargaining unit in designated corporations in accordance with the Decree.
5. 759. The Government indicates that the Decree requires trade unions which represent workers within designated corporations to re-register by going through the prescribed balloting process. This ensures that such unions continue to enjoy the freely given support of a majority of workers, and that workers who do not wish to be represented by a trade union have the opportunity to express that view. The registration process is modelled on other countries’ labour laws and requires a secret ballot.
6. 760. According to the Government, the Decree does not “outlaw professional trade unionists” as misleadingly claimed. It requires that those who negotiate directly with the employer in designated corporations are employees of the company concerned, so that an employer may negotiate terms and conditions directly with its own employees who have a direct stake in the outcome, rather than with external third parties who may have a wider agenda of their own. Trade unions can continue to employ staff. Those staff can continue to advise workers’ representatives engaged in negotiations with their employers in designated corporations, but would not have the right to conduct those negotiations themselves.
7. 761. The Government indicates that the Decree only allows an employer in a designated corporation to impose terms and conditions after it has conducted good faith negotiations for at least 60 days. Where a new collective agreement is imposed, there is a right of appeal to the Minister for a review of its contents. This is similar to the position in other countries.
8. 762. The Government states that the Decree upholds the fundamental right of workers to take industrial action in pursuit of their legitimate interests. But as in many countries, this right is circumscribed in order to avoid damaging disruption to commerce. Furthermore, the Government indicates that there are significant penalties for individuals or organizations that ignore the provisions of the Decree and attempt to disrupt operations in an essential national industry. The impact of such illegal action could be devastating to the companies concerned and could affect tens of thousands of Fijians. There needs to be an effective deterrent against actions for personal gain that could have such impact on others and on the Fijian economy.
9. 763. According to the Government, the Decree guarantees employees in designated corporations the right to various “dispute resolution” processes concerning disciplinary issues and contract interpretation issues (subject to a specified financial threshold). These are now required as a matter of law, not subject to the power game associated with collective bargaining.
10. 764. The Government states that the Decree does not ban the system of check-off in designated corporations, but allows employers not to operate it. This is a common approach in many other countries.

D. The Committee’s conclusions

1. 765. The Committee notes that, in the present case, the complainants allege several acts of assault, harassment, intimidation and arrest and detention of trade union leaders and members, ongoing interference with internal trade union affairs, the dismissal of a trade union leader in the public service education sector, undue restrictions on trade union meetings, and the issuance of several decrees curtailing trade union rights.
2. 766. The Committee expresses its grave concern that, while the Government had accepted a direct contacts mission to the country in line with its previous recommendation, the ILO Direct Contacts Mission that visited Fiji in September 2012 was not allowed to continue its work and was advised to depart expeditiously so that the Government could welcome a visit under the new terms of reference presented by it. The Committee takes due note of the report of the Direct Contacts Mission in this regard (Appendix I). The Committee expresses its profound regret at this loss of opportunity to clarify the facts on the ground and assist the Government in finding, together with the social partners, appropriate solutions to the matters raised before the ILO supervisory bodies, including the legislative and practical application of freedom of association principles. Regrettably, the Committee is now obliged to examine the allegations before it without the benefit of the full information that could have been collected by the mission. The Committee firmly expects that the Government will rapidly re-establish dialogue in this regard so that the Direct Contacts Mission may return to the country without delay within the framework of the mandate bestowed upon it and report back to the Governing Body.

Act of anti-union discrimination against Mr Koroi

1. 767. The Committee notes with regret from the submission of the complainant organization that the dismissal of the FTA President, Mr Tevita Koroi, from his position as school principal, is still in force. It notes that, according to the Government, the Committee’s recommendation concerning Mr Koroi will be tabled at the ERAB for its deliberation and advice to the Minister for Labour, Industrial Relations and Employment. While it understands that Mr Koroi has left the country, the Committee expects that this case will be deliberated by the ERAB without further delay, and that, in the framework of this exercise, the conclusions that the Committee made in this regard when examining this case at its meeting in November 2010 [see 358th Report, paras 550–553] will be duly taken into account, with a view to rehabilitating Mr Koroi and considering his reinstatement should he return to Fiji.

Assault, harassment, intimidation and arrest of trade unionists

1. 768. Concerning the alleged physical attacks on 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.
2. 769. Reiterating its deep concern at the numerous acts of assault, harassment and intimidation of trade union leaders and members for their exercise of the right to freedom of association previously alleged by the complainants, 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 [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 50, 52 and 55]. The Committee therefore 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 FTUC and General Secretary of the Fiji Sugar Workers; Mr Mohammed Khalil, President of the Fiji Sugar and General Workers Union – Ba Branch; Mr Attar Singh, General Secretary of the FICTU; Mr Taniela Tabu, General Secretary of the Viti National Union of Taukei Workers; 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 allegation that an act of assault against a trade union leader was perpetrated in retaliation for statements made by a colleague at the ILC, 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 and to take full account of the above principles in the future.
3. 770. With respect to the alleged arrest and detention of trade unionists, the Committee notes the complainant’s indication that Mr Daniel Urai, the FTUC President and General Secretary of the National Union of Hospitality, Catering and Tourism Industries Employees (NUHCTIE), still has two cases pending in court, one for talking to union members on pay increase issues and the other one for having allegedly committed treason; and that, in the first case which is pending for almost a year, the prosecution has not been able to identify the complainant nor to produce any disclosures for the offence. The Committee also notes the Government’s summary of events: (i) Mr Nitendra Goundar, an NUHCTIE member, 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 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 admissions, 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) it should be noted that at no time were the two unionists coerced, threatened or assaulted; and (vi) the case is set for mention on 4 June 2012.
4. 771. While noting that, since its last examination of the case, Mr Felix Anthony, Mr Daniel Urai, and Mr Nitendra Goundar have 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. With reference to its conclusions concerning the PER as enounced in its previous examination of the case [see 358th Report, para. 839], the Committee reiterates that, while persons engaged in trade union activities or holding trade union office cannot claim immunity in respect of the ordinary criminal law, the arrest of, and criminal charges brought against, trade unionists may only be based on legal requirements that in themselves do not infringe the principles of freedom of association. With respect to the abovementioned trade unionists, the Committee urges the Government to take the necessary measures to ensure that all charges against them are immediately dropped, and to keep it informed of any developments in this regard without delay, including the outcome of the case hearing that the Committee understands has been deferred. Lastly, recalling that the detention of trade unionists for reasons connected with their activities in defence of the interests of workers constitutes a serious interference with civil liberties in general and with trade union rights in particular, and that the arrest, even if only briefly, of trade union leaders and trade unionists, and of the leaders of employers’ organizations, for exercising legitimate activities in relation with their right of association constitutes a violation of the principles of freedom of association [see Digest, op. cit., paras 62 and 64], the Committee urges the Government to take full account of these principles in the future.

Lack of freedom of assembly, freedom of expression and access to media

1. 772. In regard to its previous recommendation relating to freedom of assembly and expression, the Committee notes the complainants’ allegations that the POAD, which has replaced the PER in enforcing restrictions on freedom of assembly, does not, in its view, resolve the situation but even makes it worse. It further observes, however, that, on 19 July 2012, following pressure from the union movement, political parties and the recently appointed Constitutional Commission, the Government announced that it has suspended section 8 of the Public Order Act as amended by the POAD, which requires permits for meetings in public places, in order to allow for consultation on constitutional development. The complainants have, however, expressed their fear that soon after the Constitutional Commission completes the public hearings (around mid-October), the meeting restrictions will be restored.
2. 773. The Committee, moreover, notes with concern the complainants’ additional allegations that: (i) police and military intelligence are still present in union general meetings; (ii) 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 addressed trade union meetings in Australia and allegedly requested unions to boycott tourism in Fiji and ground handling of Air Pacific in Australia; and that, according to the complainant, this was a blatant defamatory lie perpetrated by the Government without providing evidence in order to remove Mr Singh from the ATS Board; and (iii) media censorship continues unabated undermining basic human rights and has now taken the far more invidious form of “self-censorship”, driven by continuing intimidation of journalists and media owners; media has also been regularly refusing to report on media statements sent by the trade unions.
3. 774. 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) the Government received requests for and approved numerous permits over the last five years; 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.
4. 775. While welcoming the lifting of the emergency legislation in the form of the PER on 7 January 2012, the Committee cannot but express particular concern at the new subsection (5) of section 8 of the Public Order Act as amended by the POAD, according to which “the appropriate authority may, in its discretion, refuse to grant a permit under this section to any person or organisation that has on any previous occasion been refused a permit by virtue of any written law or to any person or organisation 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 organisation which has on any previous occasion organised 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”. In this regard, the Committee once again recalls that the ILC has pointed out 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 (resolution concerning trade union rights and their relation to civil liberties, adopted at the 54th Session, 1970). As regards freedom of assembly in particular, the Committee recalls that permission to hold public meetings and demonstrations, which is an important trade union right, should not be arbitrarily refused [see Digest, op. cit., paras 38 and 142]. Considering that the wording of this provision could be used in 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, the Committee welcomes the decision to temporarily suspend the application of section 8 of the Public Order Act as amended and requests the Government to consider abrogation or amendment of the POAD so as to ensure that the abovementioned right may be freely exercised. Moreover, the Committee again emphasizes that it has always cautioned that, where a representative of the public authorities can attend trade union meetings, this may influence the deliberations and the decisions taken (especially if this representative is entitled to participate in the proceedings) and hence may constitute an act of interference incompatible with the principle of freedom to hold trade union meetings [see Digest, op. cit., para. 132]. With respect to freedom of opinion and expression, the Committee recalls that the right to express opinions through the press or otherwise is an essential aspect of trade union rights [see Digest, op. cit., para. 155]. Stressing that freedom of assembly and freedom of opinion and expression are a sine qua non for the exercise of freedom of association, the Committee once again urges the Government to take full account of the principles enounced 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 and requests the Government to reinstate him in his position representing workers’ interests on the ATS Board without delay.

Infringement of trade union rights by executive decree

1. 776. The Committee notes that, according to the complainants, the Administration of Justice Decrees Nos 9 and 10 of 2009, the State Services Decree No. 6 of 2009, the Employment Relations Amendment Decree No. 21 of 2011 and the Essential National Industries Decree No. 35 of 2011 remain in force with major detrimental effects on workers and trade unions.
2. 777. As for the Essential National Industries Decree, the Committee notes that, according to the Government’s reply, it sets forth realistic and balanced requirements for both employers and labour representatives with a view to helping create growth and long-term viability for companies essential to Fiji while protecting jobs and ensuring fundamental workers’ rights; it is limited to essential national industries and will not be – as incorrectly claimed – extended to the vast majority of employers in Fiji; and the Decree is comparable, in the main, with respect to its key provisions and principles, to legislation of other major developed countries. In this regard, the Committee recalls that the mandate of the Committee consists in determining whether any given legislation or practice complies with the principles of freedom of association and collective bargaining laid down in the relevant Conventions [see Digest, op. cit., para. 6].
3. 778. Concerning the specific provisions of the Decree, the Committee takes due note of the Government’s indications and would draw attention to the following concerns:
   • (i) Under section 6, all existing trade union registrations in essential national industries are effectively cancelled; in order to operate, unions are required to re-register under the Act. The Committee notes the Government’s indication that the requirement for trade unions which represent workers within designated corporations to re-register ensures that such unions continue to enjoy the freely given support of a majority of workers, and that workers who do not wish to be represented by a trade union have the opportunity to express that view; and that the prescribed registration process requires a secret ballot. Considering that workers who no longer wish to be represented by a union are free to disaffiliate at any time, the Committee reiterates that it has underlined on many prior occasions that legislation which accords the minister the complete discretionary power to order the cancellation of the registration of a trade union, without any right of appeal to the courts, is contrary to the principles of freedom of association [see Digest, op. cit., para. 689].
   • (ii) Section 7 provides that union officials must, subject to severe civil and penal sanctions, be employees of the designated corporations they represent. The Committee notes the Government’s indication that section 7 of the Decree does not “outlaw professional trade unionists” but requires that those who negotiate directly with the employer in designated corporations are employees of the company concerned, so that an employer may negotiate terms and conditions directly with its own employees who have a direct stake in the outcome, rather than with external third parties who may have a wider agenda of their own; thus trade unions can continue to employ staff who can continue to advise workers’ representatives engaged in negotiations but would not have the right to conduct those negotiations themselves. Noting that there may be elections of new union officials at the time of re-registration, the Committee recalls that the requirement of membership of an occupation or establishment as a condition of eligibility for union office is not consistent with the right of workers to elect their representatives in full freedom [see Digest, op. cit., para. 407]. It further recalls that workers’ organizations must themselves be able to choose which delegates will represent them in collective bargaining without the interference of the public authorities. With regard to the ban on third-party intervention in the settlement of disputes, the Committee is of the opinion that such an exclusion constitutes a serious restriction on the free functioning of trade unions, since it deprives them of assistance from advisers [see Digest, op. cit., paras 984 and 987]. While recognizing the Government’s concerns that negotiations take place with those directly affected by the matters, the Committee underlines that the unions concerned should be free to choose their representatives in collective bargaining and be accompanied by those external parties they consider appropriate.
   • (iii) According to sections 10–12, a union must apply to the Prime Minister in writing to be elected or re-elected as representative of the bargaining unit, the Prime Minister shall determine the composition and scope of a bargaining unit for the purposes of conducting elections for its representative, and the registrar shall conduct and supervise elections in the bargaining unit. Noting the concerns expressed by the complainant at the extent of discretion of the Prime Minister when allowing an applicant to seek to represent the bargaining unit, and in the absence of any information provided by the Government, the Committee again reiterates that a law providing that the right of association is subject to authorization granted by a government department purely at its discretion is incompatible with the principle of freedom of association. Moreover, the right of workers’ organizations to elect their own representatives freely is an indispensable condition for them to be able to act in full freedom and to promote effectively the interests of their members. For this right to be fully acknowledged, it is essential that the public authorities refrain from any intervention which might impair the exercise of this right, whether it be in determining the conditions of eligibility of leaders or in the conduct of the elections themselves [see Digest, op. cit., paras 273 and 391].
   • (iv) As regards the role of representatives – union or not – as collective bargaining agents, as established by Part 3 in conjunction with section 2, the Committee recalls its previous conclusions concerning the need to ensure that the existence of elected representatives is not used to undermine the position of the trade unions concerned.
   • (v) Under sections 12 and 14, there is a single representative elected to represent workers in the bargaining unit, and a union will be registered as representative of the bargaining unit only if 50 per cent +1 of all workers in the bargaining unit affirmatively vote in its favour. The Committee notes the Government’s indication that workers can still have a union recognized for the purpose of collective bargaining if a majority of workers clearly want that; and that workers who do not want to be represented by a trade union must also have that freedom. In this regard, taking into account that the wording of section 14, especially subsection (4), seems to indicate that the figure 50 per cent +1 appears not only to be the percentage necessary for a union to be the exclusive bargaining agent, but also for a union to be registered, the Committee once again recalls that the right of workers to establish organizations of their own choosing implies, in particular, the effective possibility to create – if the workers so choose – more than one workers’ organization per enterprise. It also recalls its previous conclusion that a provision imposing a minimum membership of 50 per cent to form a workers’ organization would not be in line with Convention No. 87.
   • (vi) According to section 8, all existing collective agreements are null and void 60 days after the Decree enters into force, and new agreements are to be negotiated by the parties before the expiry of the 60 days; otherwise, the company may unilaterally implement new terms and conditions through a new collective agreement or individual contracts. The Committee notes the Government’s indication that the Decree only allows an employer in a designated corporation to impose terms and conditions after it has conducted good-faith negotiations for at least 60 days; and that, where a new collective agreement is imposed, there is a right of appeal to the minister for a review of its contents. The Committee once again emphasizes that a legal provision which allows the employer to modify unilaterally the content of signed collective agreements, or to require that they be renegotiated, is contrary to the principles of collective bargaining. In examining allegations of the annulment and forced renegotiation of collective agreements for reasons of economic crisis, the Committee was of the view that legislation which required the renegotiation of agreements in force was contrary to the principles of free and voluntary collective bargaining enshrined in Convention No. 98 and insisted that the Government should have endeavoured to ensure that the renegotiation of collective agreements in force resulted from an agreement reached between the parties concerned [see Digest, op. cit., paras 942 and 1021]. In addition, no clear and imperative reasons have been provided concerning any need for economic stabilization in a specific context. The legislation has effect on whole sectors without any reference to specific provisions that cannot be implemented in the framework of an acute national crisis, but rather provides for wholesale intervention in all collective agreements. The Committee thus considers that the abrogation of the collective agreements in force, as well as the unilateral imposition of conditions of employment where the parties have failed to come to an agreement for their modification, is contrary to Article 4 of Convention No. 98 concerning the encouragement and promotion of collective bargaining.
   • (vii) Pursuant to section 27, and subject to severe civil and penal sanctions, strikes in essential national industries in connection with efforts to obtain registration, efforts to influence the outcome of bargaining or in the course of negotiations, and disputes over the interpretation or application of a collective agreement, are expressly prohibited. The bargaining unit may only go on strike if the parties failed to reach a collective agreement after three years of bargaining, subject to a 28-day notice period and prior written approval from the Government. The Prime Minister may, by order, declare any strike or lockout in any essential national industry unlawful. According to the Essential National Industries and Designated Corporations Regulations 2011, the above restrictions on the right to strike apply to the following sectors currently considered as “essential national industries”: financial industry (including customs); telecommunications industry; civil aviation industry; and public utilities industry (including electricity and water). The term “essential national industries” is defined in section 2 of the Decree as industries which are: (i) vital to the present and continued success of the Fiji national economy, or gross domestic product, or those in which the Government has a majority and essential interest; and (ii) declared as essential national industry by the ministry under regulations made pursuant to this Decree. The Committee notes the Government’s statement that: (i) the Decree upholds the fundamental right of workers to take industrial action in pursuit of their legitimate interests but that this right is circumscribed in order to avoid damaging disruption to commerce; and (ii) there are significant penalties for individuals or organizations that ignore the provisions of the Decree and attempt to disrupt operations in an essential national industry, since there needs to be an effective deterrent against illegal actions for personal gain that could have a devastating impact on the companies concerned affecting tens of thousands of Fijians and the Fijian economy. In this regard, the Committee once again wishes to highlight that the right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests. The Committee once again recalls that the right to strike may only be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population). Accordingly, the Committee recalls that electricity services, water supply services and the telephone service may be considered to be essential services where the right to strike could be restricted or prohibited, and the prohibition of the right to strike of customs officers, who are public servants exercising authority in the name of the State, is not contrary to the principles of freedom of association. However, radio and television, banking and civil aviation more generally do not constitute essential services in the strict sense of the term. The Committee considers that by linking restrictions on strike action to interference with trade and commerce, a broad range of legitimate strike action could be impeded. While the economic impact of industrial action and its effect on trade and commerce may be regrettable, such consequences in and of themselves do not render a service “essential”, and thus the right to strike should be maintained. The Committee further wishes to emphasize that responsibility for declaring a strike illegal should not lie with the Government, but with an independent body which has the confidence of the parties involved. Moreover, penal sanctions should only be imposed as regards strikes where there are violations of strike prohibitions which are themselves in conformity with the principles of freedom of association. All penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed and the authorities should not have recourse to measures of imprisonment for the mere fact of organizing or participating in a peaceful strike [see Digest, op. cit., paras 628 and 668].
   • (viii) Under section 26, disputes over discipline and discharge, and the interpretation or application of a collective agreement must be settled internally or by the employer’s designated reviewing officer without recourse to a judicial or quasi-judicial body; disputes involving an issue of over F$5 million (US$2.78 million) which remained unresolved may be referred to the Prime Minister for a final and binding determination. The Committee notes the Government’s indication that the Decree guarantees employees in designated corporations the right to various “dispute resolution” processes concerning disciplinary issues and contract interpretation issues (subject to a specified financial threshold); and that these are now required as a matter of law, not subject to the power game associated with collective bargaining. The Committee once again recalls that rights disputes should be able to be appealed to the courts.
4. 779. In view of the above considerations, the Committee recalls its previous conclusion that numerous provisions of the Essential National Industries Decree and its implementing regulations give rise to serious violations of the principles on freedom of association and collective bargaining. Moreover, while noting the Government’s indication that, where a union has been recognized for collective bargaining purposes, the employer is obliged to recognize and negotiate in good faith with the union representatives, the Committee takes due note of the alleged disastrous effects in practice of the Essential National Industries Decree on the trade unions representing industries coming under its scope, such as: inability to register bargaining units due to the high threshold of 75 workers employed by the same employer who perform similar types of work for the employer, stipulated in section 2 of the Decree; voluntary dissolution of one union due to its inability to form bargaining units at either of the companies where it was represented; no collective agreements concluded except by one bargaining unit with close association with the management; efforts of unions to initiate collective bargaining with the employer and conduct good-faith negotiations to no avail; instead, unilateral changes to terms and conditions of employment imposed or threatened to be imposed by the employer; full or partial withdrawal of the check-off facility; remittance of union dues directly to the bargaining unit rather than to the trade union concerned; and the delay in collective bargaining entailing a drastic decline in union membership and thus a serious loss of resources to defend workers’ interests. The Committee had previously urged the Government 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 Conventions Nos 87 and 98, ratified by Fiji. In this regard, the Committee notes the reference in the report of the Direct Contacts Mission that, 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 the Constitution, the tripartite 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 further notes that, according to the submission of the FTUC, the tripartite ERAB subcommittee “has agreed to delete almost most of the offending provisions” of the Essential National Industries Decree. 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 towards the end of September with the views of the PSC and the Attorney-General, and that the work of the ERAB and its subcommittee was anticipated to be concluded by October 2012. The Committee firmly expects that the measures agreed by the tripartite ERAB subcommittee will be actively pursued and given effect without delay, so as to bring the legislation into conformity with freedom of association and collective bargaining principles, and requests the Government to keep it informed of the progress made in this regard without delay.
5. 780. Concerning the right to recourse of public servants, the Committee notes that the complainant alleges that: (i) public sector unions still have no avenue for recourse, save in expensive cases, since no action or decision of the PSC or other government entities to reform, restructure or change the terms and conditions of employment can be challenged in any court or forum; (ii) public sector unions have been deprived of representing or defending their members in situations of discrimination as they are now excluded from the scope of the ERP; and (iii) while the staff of statutory bodies or government commercial companies and private sector workers have the right to approach the ERP institutions with their grievances because they are (not yet) subject to the above decrees, due to increase in the workload of the mediation and tribunal forums, progress is often slow. The Committee further notes the Government’s indication that: (i) 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; (ii) 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, including any decision to terminate their employment or to suspend them; and (iii) 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.
6. 781. The Committee notes with interest the adoption of the Public Service (Amendment) Decree No. 36 of 2011, which, after their exclusion from the ERP, restores the protection of public servants against discrimination including anti-union discrimination. As regards access to courts, the Committee welcomes the decision recently rendered by the High Court of Fiji and the new internal grievance policy implemented by the PSC. 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 have recourse to both administrative and judicial 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 individual and 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.
7. 782. Lastly, the Committee notes from the allegations that, as a direct consequence of the Civil Service (Amendment) Decree and the Essential National Industries Decree, public sector unions and unions representing industries coming under the Essential National Industries Decree face serious financial difficulties or even struggle for survival due to the discontinued or only partly restored check-off facility. It also notes the Government’s statement that the Essential National Industries Decree does not ban the system of check off in designated corporations, but allows employers not to operate it, which is a common approach in many other countries. The Committee recalls 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 and should therefore be avoided. It further considers 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. It requests the Government to take the necessary measures to ensure that arrangements are made between the parties to ensure the full reactivation of the check-off facility in the public sector and the relevant sectors considered as “essential national industries”.

The Committee’s recommendations

1. 783. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Expressing its grave concern that, while the Government had accepted a direct contacts mission to the country in line with its previous recommendation, the ILO Direct Contacts Mission that visited Fiji in September 2012 was not allowed to continue its work and was advised to depart expeditiously so that the Government could welcome a visit under the new terms of reference presented by it, the Committee firmly expects that the Government will rapidly re-establish dialogue in this regard so that the Direct Contacts Mission may return to the country without delay within the framework of the mandate bestowed upon it and report back to the Governing Body.
   • (b) While it understands that Mr Koroi has left the country, the Committee expects that this case will be deliberated by the ERAB without further delay, and that, in the framework of this exercise, the conclusions that the Committee made in this regard when examining this case at its meeting in November 2010 [see 358th Report, paras 550–553] will be duly taken into account, with a view to rehabilitating Mr Koroi and considering his reinstatement should he return to Fiji.
   • (c) Reiterating its deep concern at the numerous acts of assault, harassment and intimidation of trade union leaders and members for their exercise of the right to freedom of association previously alleged by the complainants, the Committee 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 FTUC and General Secretary of the Fiji Sugar Workers; Mr Mohammed Khalil, President of the Fiji Sugar and General Workers Union – Ba Branch; Mr Attar Singh, General Secretary of the FICTU; Mr Taniela Tabu, General Secretary of the Viti National Union of Taukei Workers; 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 allegation that an act of assault against a trade union leader was perpetrated in retaliation for statements made by the FTUC National Secretary at the ILC, the Committee urges the Government to ensure that no trade unionist suffers retaliation for the exercise of freedom of expression. The Committee generally urges the Government to take full account of the relevant principles enounced in its conclusions in the future.
   • (d) The Committee urges the Government to take the necessary measures to ensure that all criminal charges of unlawful assembly brought against Mr Daniel Urai, the FTUC President and NUHCTIE General Secretary, and Mr Nitendra Goundar, a NUHCTIE member, on the grounds of failure to observe the terms of the Public Emergency Regulations are immediately dropped, and to keep it informed of any developments in this regard without delay, including the outcome of the case hearing that the Committee understands was deferred.
   • (e) While welcoming the lifting of the emergency legislation in the form of the PER on 7 January 2012, the Committee, further welcoming the decision to temporarily suspend the application of section 8 of the Public Order Act as amended by the POAD, which placed important restrictions on freedom of assembly, requests the Government to consider abrogation or amendment of the POAD. Stressing that freedom of assembly and freedom of opinion and expression are a sine qua non for the exercise of freedom of association, the Committee once again urges the Government to take full account of the principles enounced in its conclusions in the future and refrain from unduly impeding the lawful exercise of trade union rights in practice. It also requests the Government to reinstate Mr Rajeshwar Singh, FTUC Assistant National Secretary, in his position representing workers’ interests on the ATS Board without delay.
   • (f) Recalling its previous conclusion that the Essential National Industries Decree No. 35 of 2011 and its implementing regulations give rise to serious violations of Conventions Nos 87 and 98 and the principles on freedom of association and collective bargaining, and taking due note of its alleged disastrous effects on the unions concerned, the Committee notes the review by the tripartite ERAB subcommittee of all existing government decrees relating to labour in terms of their conformity with the ILO fundamental Conventions, as well as the subcommittee’s agreement, as reported by the complainant, to delete most of the provisions of the Essential National Industries Decree that were considered as offending. The Committee firmly expects that the measures agreed by the tripartite ERAB subcommittee will be actively pursued and given effect without delay, so as to bring the legislation into conformity with freedom of association and collective bargaining principles, and requests the Government to keep it informed of the progress made in this regard without delay.
   • (g) Noting with interest the adoption of the Public Service (Amendment) Decree No. 36 of 2011 and welcoming the decision recently rendered by the High Court of Fiji and the new internal grievance policy implemented by the PSC, the Committee requests the Government to supply a copy of the High Court decision. It also requests the Government to provide information on the relevant mechanisms currently available to public servants to address individual and 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.
   • (h) The Committee requests the Government to take the necessary measures to ensure that arrangements are made between the parties to ensure the full reactivation of the check-off facility in the public sector and the relevant sectors considered as “essential national industries”.
   • (i) The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
   • (j) The Committee draws the special attention of the Governing Body to this case because of the extreme seriousness and urgency of the matters dealt with therein.

Appendices

Appendix I Report on the ILO direct contacts mission to Fiji (Suva, 17–19 September 2012).

Appendix II Communication dated 10 July 2012, in which the ILO confirms the background, scope and composition of the mission.

Appendix III Draft terms of reference (TOR) for the mission, provided on 12 September 2012, by the Ministry of Labour, Industrial Relations and Employment.

Appendix IV Draft mission schedule as of 14 September 2012.

Appendix V New TOR for the mission, presented on 17 September 2012, by the Permanent Secretary of the Prime Minister’s Office.

Appendix VI Explanatory note on the scope of the direct contacts mission.

Appendix VII Letter from Judge Koroma, dated 18 September 2012 p.m. and hand delivered to His Honourable Jone Usamate, Minister for Labour, Industrial Relations and Employment.

Appendix VIII Letter dated 18 September and hand delivered on 19 September 2012 a.m., signed by the Permanent Secretary of the Prime Minister’s Office.

Appendix IX Letter from Judge Koroma to His Excellency, the Prime Minister, dated 19 September 2012.

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APPENDIX I

Report on the ILO direct contacts mission to Fiji (Suva, 17–19 September 2012)

I. Background, purpose and terms of reference

The ILO direct contacts mission was called for by the Committee on Freedom of Association (CFA) in November 2011, in view of the seriousness of the violations of freedom of association alleged by the complainants in Case No. 2723 and the absence of a complete picture of the situation on the ground. This call was echoed in December 2011 by the Committee of Experts on the Application of Conventions and Recommendations (CEACR), as well as by the ILO Asia and Pacific Regional Meeting in its resolution on Fiji. The objectives and purpose of the direct contacts mission were to clarify the facts and assist the Government in finding, together with the social partners, appropriate solutions to the matters raised before the ILO supervisory bodies, including the legislative and practical application of freedom of association principles.

The Government of Fiji accepted the ILO direct contacts mission by letter of 23 May 2012, signed by His Excellency, the Prime Minister Commodore Josaia Voreqe Bainimarama. (Note 1) Following discussions with the Fiji delegation during the International Labour Conference, the ILO confirmed, in its communication dated 10 July 2012, the background, scope and composition of the mission (Appendix II). The Government of Fiji subsequently engaged with the ILO Office in Suva on terms of reference, on the basis of which it would invite relevant governmental authorities to meet with the mission. A broad draft of terms of reference, quoting extensively the recommendations made by the CFA was later simplified and, on 12 September 2012, the Ministry of Labour, Industrial Relations and Employment provided the ILO with revised terms of reference, approved by the Government (Appendix III).

The visit of the direct contacts mission to the country was scheduled from 17 to 21 September 2012. The mission was led by Judge Abdul G. Koroma, member of the CEACR and former Judge at the International Court of Justice. He was accompanied by Ms Karen Curtis, Deputy Director of the International Labour Standards Department responsible for Freedom of Association and Ms Christine Bader, Legal Officer (Freedom of Association and Collective Bargaining) of the International Labour Standards Department.

The mission began its programme on Monday, 17 September 2012, based on the above terms of reference, which were understood to be consistent with the objectives and purpose of the mission as endorsed by the Governing Body, and with an agreed list of senior public officials and representatives from the employers’ organization and national trade union centres that would be met.

II. Meeting with the Minister for Labour, Industrial Relations and Employment

The first meeting took place on Monday, 17 September 2012, at 9 a.m. in the premises of the Ministry of Labour, Industrial Relations and Employment.

Persons present:

– Honourable Jone Usamate, Minister for Labour, Industrial Relations and Employment;

– Taito R. Waqa, Permanent Secretary for Labour, Industrial Relations and Employment; and

– Samuela Namosimalua, Deputy Secretary, Ministry for Labour, Industrial Relations and Employment.

The Honourable Minister for Labour, Industrial Relations and Employment welcomed the opportunity to present the accurate situation in Fiji and provide the mission with a more holistic view and understanding of the context. He expressed the hope that all allegations would be resolved following the direct contacts mission.

He informed the mission that Fiji had recently endorsed eight ILO instruments for ratification or adoption: the Maritime Labour Convention, 2006 (MLC, 2006); the Maternity Protection Convention, 2000 (No. 183); the Private Employment Agencies Convention, 1997 (No. 181), and its Recommendation; the Human Resources Development Convention, 1975 (No. 142); the List of Occupational Diseases Recommendation, 2002 (No. 194); the Promotion of Cooperatives Recommendation, 2002 (No. 193); and the Job Creation in Small and Medium-Sized Enterprises Recommendation, 1998 (No. 189).

As his country aspired to sustainable democracy, the Government’s Peoples Charter for Change, Peace and Progress sought to address all issues that had led to military coups in the past, such as ethnic tensions, conflicts with the church, cronyism, corruption, etc. In developing a new non race-based Constitution for Fiji, efforts were being made to involve each and everyone. To this end, the Constitutional Commission was travelling throughout the country presenting its work and receiving submissions from the Fijian people.

There were three principles guiding the Government in moving forward on the road to democracy: (1) empowering people in line with the concept “one person, one vote, one value” by eliminating racist attitudes and implementing equal treatment for all Fijians; (2) modernizing Fiji through labour law reform; and (3) strengthening the national economy.

As regards the labour law reform, which included the review of all laws and decrees relating to ratified ILO Conventions, a tripartite consultative subcommittee of the Employment Relations Advisory Board (ERAB) had been set up composed of representatives of the Fiji Trades Union Congress (FTUC), the Fiji Commerce and Employers Federation (FCEF) and the Government. The Minister expressed the hope that the subcommittee’s report would be ready at the end of September so that it could then be discussed by Cabinet.

The Permanent Secretary reaffirmed the commitment of the Prime Minister to the labour law reform and to ensuring compliance with ILO Conventions. The tripartite process before the ERAB, as well as its subcommittee, was essential since the new Constitution would reflect the eight fundamental ILO Conventions and the labour legislation would need to be compatible. He reiterated that Felix Anthony and Daniel Urai from the FTUC were part of the tripartite process, since the FTUC was the majority union in Fiji (the unionized workers in Fiji representing 28 per cent of the total workforce). The comments of the CFA and the CEACR had been submitted to the ERAB subcommittee so that they could be duly taken into account. The Government was making huge efforts to complete this exercise rigorously and expeditiously but there were serious time constraints, as the new Constitution was to be adopted in March 2013.

The Permanent Secretary indicated that, since April 2012, there had been three ERAB meetings and seven meetings of its subcommittee. The work of the ERAB subcommittee was divided into four areas: (i) the review of the labour-related decrees; (ii) the review of the 22 amendments to the Employment Relations Act (ERA); (iii) the domestication of the eight recently endorsed ILO instruments; and (iv) the discussion of new labour policy matters (e.g. reform of wage councils, new mediation centre, etc.). The ERAB subcommittee’s task was to make recommendations to the Government in these four areas.

Hitherto, the review of the labour-related decrees, as well as of the 22 amendments to the ERA, had been completed and awaited the Government’s comments. The work concerning the domestication of the recently adopted instruments was finalized except for the MLC, 2006, due to its complexity; the Permanent Secretary signalled the need for technical assistance in this regard. The discussion of new labour policy matters had not yet been concluded; as regards mediation, it was highlighted that the success rate of preliminary labour mediation, and thus effective conflict resolution, was 80 per cent and that mediation would be used as a filter for disputes and a means that would need to be exhausted in the first instance, in order to increase productivity.

The last meeting of the ERAB subcommittee had taken place on 13 August 2012. It would be reconvened towards the end of September with the views of the Public Service Commission and the Attorney-General, which would also allow the parties to go back to their group, consult and prepare the discussion of labour policy issues. The ERAB subcommittee would probably need one or two more meetings to finish its task in all four areas, following which its recommendations would be submitted to the ERAB. It was therefore anticipated that the work of the ERAB and its subcommittee would be completed by October 2012.

In addition to the labour law reform being discussed in the tripartite ERAB process, the Permanent Secretary highlighted the Memoranda of Understanding (MOUs) signed with Papua New Guinea in the area of occupational safety and health and with Kiribati in the area of labour reform and labour inspection, which illustrated an excellent South–South cooperation.

Lastly, the Permanent Secretary provided the mission with a written brief, including a table, summarizing the meetings of the ERAB and its subcommittee.

III. Interruption of the work of the mission

Toward the end of this constructive meeting, following a phone call to the Minister, he requested the mission to desist from any remaining meetings scheduled that day until further notice (see draft programme of meetings in Appendix IV).

At 5.35 p.m., the mission was provided with new terms of reference from the Government and requested to attend a meeting at the Prime Minister’s Office at 6 p.m.

The following persons attended from the Government: the Permanent Secretary of the Prime Minister’s Office; the Minister for Labour, Industrial Relations and Employment; and his Permanent Secretary.

The Permanent Secretary of the Prime Minister’s Office requested that the following concerns be put on record: (i) as a result of miscommunication between the respective Fijian Ministries, the Government considered that the previously accepted terms of reference did not articulate appropriately the scope of the visit and wished to provide the mission with new terms of reference under which its work should be carried out (Appendix V); (ii) there were doubts regarding the independence and objectivity of the mission, the Head of the mission being a member of the CEACR, and the other members working as officials in the International Labour Standards Department; and (iii) it would be premature to meet the Chairperson of the Constitutional Commission. He also stated that, if he could not receive assurances on the above, the present mission should leave so that the Government could invite another team as soon as possible.

The mission emphasized that the CEACR was an independent, objective and impartial supervisory body of the ILO, which is a tripartite international organization. It was also stressed that the task of the mission was distinct from the work of the supervisory bodies. The mission was mandated to collect and faithfully transmit to the competent ILO bodies all information and documents received. As regards the meeting with the Chairperson of the Constitutional Commission, the mission expressed its view that this might have been useful to highlight the overall efforts undertaken by the Government in preparing the new Constitution and its progress towards democracy, but was not essential to the conduct of the mission should the Government prefer they did not meet him.

With respect to the terms of reference, the mission observed that the proposed new terms of reference, inter alia, requested the mission to assess the representativity of the trade union movement in Fiji, as well as the political and financial interests of certain trade union leaders. More generally, the terms of reference set out a point of view of the Government for which it sought confirmation, while at the same time calling into question certain findings and principles of the tripartite CFA within which framework the mission had been acting. The mission first emphasized that any and all observations the Government might wish to make in relation to the alleged violations of freedom of association were welcome and would be duly reflected in its report in a fair and impartial manner. As such, however, the terms of reference represented an unacceptable, significant and serious deviation from the object and purpose of the ILO mission. The mission suggested as a possible way forward that, instead of negotiating a set of redefined terms of reference, the work of the mission could simply proceed under the broad mandate bestowed by the ILO Governing Body CFA, which would include all relevant information that the Government might wish to raise.

The Permanent Secretary of the Prime Minister’s Office declared that the independence of the mission did not need to be reasserted and that the concerns expressed in this regard had been addressed. As regards the terms of reference, he stated that a paper clarifying the scope of the mission, in the absence of agreed terms of reference, would be helpful. The Government’s position concerning a meeting with the Chairperson of the Constitutional Commission might change in view of the indication that the mission could convey to the Governing Body the efforts made by the Government on the road towards democracy.

As promised, the mission transmitted, that same evening, an explanatory note on the scope of the direct contacts mission to the Prime Minister’s Office (Appendix VI).

On the following afternoon, 18 September 2012, in the absence of any reply and with the concern that the brief time available to it was dwindling, the Head of the mission addressed a letter to the Minister for Labour, Industrial Relations and Employment expressing concerns regarding the delays incurred and requesting an audience with the Prime Minister Commodore Josaia Voreqe Bainimarama and the Attorney-General and Minister for Justice Aiyaz Sayed-Khaiyum with a view to agreeing as to how the mission could proceed with its work (Appendix VII). However, to date, the Government has not replied or acknowledged this letter.

On Wednesday morning, 19 September, a letter dated 18 September 2012 was hand delivered to the Head of the mission (Appendix VIII), requesting the mission to depart expeditiously so that the Government could welcome a visit under the new terms of reference presented by it. The Head of the mission again wrote, this time to the Prime Minister (Appendix IX), regretting that he was not granted an audience to clarify any misunderstandings and to reach a common understanding to enable the mission to achieve its objectives, particularly as he considered that the Government could have raised all issues of concern to it within the broader terms of reference under which the mission was acting.

The mission left Suva on the same day and the country on Thursday morning, 20 September 2012.

During its stay, the direct contacts mission briefly met with the FTUC (Note 2), the Fiji Islands Council of Trade Unions (FICTU) (Note 3) and FCEF (Note 4), in order to explain the situation, including the cancellation of the scheduled meetings and the abortion of the mission. At this time, the FTUC and the FICTU presented written submissions to the mission, which have been transmitted to the Government within the framework of the CFA procedure.

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NOTES:

Note 1: Relevant extract: “In this regard, I understand that the ILO Committee on Freedom of Association has suggested that an ILO direct contacts mission is needed in order to clarify the facts. I consider that an objective, fair, transparent and all-inclusive ILO direct contacts mission will be most welcome. In this regard, my Government will shortly provide ILO with the terms of reference for the direct contacts mission. Given the commencement of the constitutional consultations and the electric voter registration, both of which will commence independently of each other in July, it is best that the direct contacts mission visit Fiji in the third or last quarter of 2012. The Minister for Labour, Industrial Relations and Employment, Mr Jone Usamate, will be in contact with your ILO Director in Suva, once the terms of reference is finalized.”

Note 2: Felix Anthony, National Secretary of the FTUC; Daniel Urai, President of the FTUC; John V. Mudaliar, General Secretary, National Union of Factory and Commercial Workers (NUFCW); Rajeshwar Singh, General Secretary of the Fiji Public Service Association (FPSA) and Assistant National Secretary of the FTUC; Agni Deo Singh, General Secretary of the Fiji Teachers’ Union (FTU) and National Treasurer of the FTUC.

Note 3: Attar Singh, General Secretary of the FICTU; Maika Namudu, General Secretary of the Fijian Teachers Association (FTA); and seven other trade unionists (names to be provided).

Note 4: Marc Matthews, President of the FCEF and Vice-Chairman of the Pacific Islands Private Sector Organisation (PIPSO).

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APPENDIX II

10 July 2012

The Minister for Labour, Industrial Relations and Employment PO Box 2216 Government Buildings SUVA Iles Fidji

Ref.:TUR 1-208

Dear Sir,

I wish to thank you once again for the constructive meeting we had during the 101st Session of the International Labour Conference. I was very pleased to learn of the efforts made by your Government to ratify a number of ILO Conventions and look forward to receiving the instruments of ratification in the very near future.

As promised, I am now contacting you with reference to the up-coming direct contacts mission on freedom of association. His Excellency the Prime Minister’s acceptance of this mission in his letter of 23 May 2012 is a noteworthy signal by the country to the ILO and its constituents of the importance it attaches to the Organization and the promotion of fundamental principles and rights at work and international labour standards.

As we discussed in Geneva, the mission would need to visit the country during the week of 17 September 2012 if the mission is to be in a position to report back on developments to the 316th Governing Body Session in November, as requested at its 313th Session (March 2012). Bearing in mind the concerns that you have raised, I have asked the honourable Judge Koroma from Sierra Leone to lead the mission. Judge Koroma is a man of great reputation, a long-time diplomat and ambassador for his country, a judge on the International Court of Justice and a distinguished member of the ILO Committee of Experts on the Application of Conventions and Recommendations. Judge Koroma will be accompanied by Ms Karen Curtis, Deputy Director of the International Labour Standards Department, and Ms Christine Bader from the Department.

The mission’s terms of reference, emanating from the request by the Committee on Freedom of Association and the call echoed in the resolution adopted at the Asia and Pacific Regional Meeting, is to cover all matters relating to freedom of association, including legislative and practical application of this fundamental principle. It is therefore of utmost importance that the mission be able to meet freely with the various parties to the pending complaint, as well as with high-level Government officials and non-governmental actors of relevance to the issues dealt with in the case. In this regard, I would kindly ask you to your good offices to organize a schedule of meetings for the mission with: His Excellency the Prime Minister, Mr Commodore Josaia Voreqe Bainimarama, the Attorney General, Mr Sayed-Khyaium, the office of the Chief Justice and the Solicitor General, the Minister of Foreign Affairs and the Constitutional Commission. The mission should meet with you, honourable Minister, both at the very beginning of the visit to explain the objectives, purpose and conduct of the mission and at the end for a de-briefing. Should the conditions be ripe, the mission may further request to hold a tripartite de-briefing.

We will be in direct contact with the Director of the ILO Suva Office to make the necessary arrangements for meetings with the Fiji Trade Union Congress and the Fiji Commerce & Employers Federation, as well as with the other trade unions that are complainants in the case (Fiji Islands Council of Trade Unions and the Fiji Teachers Union).

I thank you very much for your assistance in making this mission a success and look forward to our further collaboration.

Yours faithfully,

For the Director General:

(Signed)

Cleopatra Doumbia-Henry, Director of the International Labour Standards Department

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APPENDIX III

2012 ILO DIRECT CONTACTS MISSION TO THE REPUBLIC OF FIJI

DRAFT TERMS OF REFERENCE

1.0 BACKGROUND

1.1 The call for an ILO direct contacts mission to Fiji originated from the request by the Committee on Freedom of Association (CFA) to the Governing Body in 2011 and the tripartite resolution adopted at the 15th Asia and Pacific Regional Meeting held in Kyoto, Japan in December 2011.

1.2 In its 2012 Conference Report on Fiji on ILO Convention 87 (and ILO Convention 98), the Committee of Experts in the Application of Conventions and Recommendations (CEACR) noted the conclusions and recommendations reached by the CFA in the framework of Case No. 2723 (termination of Mr Tevita Korio) concerning, inter alia, alleged acts of assault, harassment, intimidation and arrest of trade unionists, in particular that it draws the Governing Body’s attention to the urgency of the issues involved in this case and urges the Fijian Government to accept an ILO Direct Contacts Mission (“the Mission”) to clarify the facts and assist the Government and the social partners in finding appropriate solutions in conformity with freedom of association principles.

1.3 During the 312th Session of the ILO Governing Body held in Geneva in November 2011, the Governing Body examined the 362nd Report of the CFA against Fiji. The CFA draws the legislative aspects of this case to the attention of the CEACR. The CFA also draws the special attention of the Governing Body to this case.

1.4 In the light of its foregoing interim conclusions, the Committee on Freedom of Association invites the Governing Body to approve, inter alia, the following recommendations:

• (i) Given the allegations by trade unions and the absence of a complete picture of the situation on the ground, the Committee urges the Government to accept a direct contacts mission to the country in order to clarify the facts and assist the Government in finding, together with the social partners, appropriate solutions in conformity with freedom of association principles;
• (ii) The Committee draws the legislative aspects of this case to the attention of the Committee of Experts in the Application of Conventions and Recommendations; and
• (iii) The Committee also draws the special attention of the Governing Body to this case because of the urgency of the matters dealt with therein.

1.5 In response to the Report of the ILO Committee of Experts in the Application of Conventions and Recommendations against Fiji, (which included matters raised in paragraph 1.4 above) relative to alleged breaches of ILO Conventions 87 and 98, the Fijian Government provided comprehensive responses against the allegations in its 2012 Consolidated Report dated 25th May 2012 which was deposited at the ILO Standards Office in Geneva on 28th May 2012 before the start of the 101st Session of the International Labour Conference in Geneva.

1.6 An important part of the Report is the Fijian Prime Minister’s letter of 23rd May 2012 to the ILO Director-General welcoming a Direct Contacts Mission by the ILO to Fiji to ascertain the facts on the ground, and also affirming the Fijian Government’s commitment to review all its labour laws to ensure compliance with all the ratified ILO Conventions.

1.7 The Prime Minister also mentioned in his letter that Government has already activated the tripartite process in the review of all labour laws in Fiji at the Employment Relations Advisory Board meeting of 11th April 2012.

1.8 To effect the Prime Minister’s commitment, the Board, in its meeting of 16th July 2012, referred the recommendations of the Committee on Freedom of Association and the Committee of Experts in the Application of Conventions and Recommendations to its tripartite Board Advisory Committee.

1.9 The Committee, which first met on 23rd July 2012, has started the scrutiny of all the labour laws in Fiji relative to all ILO Conventions ratified by Fiji, including Conventions 87 and 98, and will recommend amendments on Fiji’s labour laws to the main Board in August 2012.

1.10 It was also recommended by the Board for all these amendments to be vetted by the Attorney General’s Office and presented to the Minister for Labour, Industrial Relations and Employment for consideration by the Fijian Cabinet.

1.11 This labour law review is part of the Fijian Government’s inclusive national social dialogue in the development of Fijian’s modern and first non-ethnic based Constitution by early 2013 towards a truly free and fair General Election in 2014.

2.0 DIRECT CONTACTS MISSION

• 2.1 This Direct Contacts Mission is undertaken in support of the procedures of the supervisory bodies, which include the Committee of Experts in the Application of Conventions and Recommendations, the Conference Committee on the Application of Standards and the Committee on Freedom of Association.
• 2.2 The Mission to Fiji consists of representatives of the ILO Director-General with a view to seeking solutions to the difficulties encountered in relation to the application of ratified Conventions, particularly ILO Conventions 87 and 98 and other core ILO Conventions.
• 2.3 The representatives of the ILO Director-General and the composition of the Mission have to give all the necessary guarantees of objectivity and impartiality and, following the completion of the Mission, a report has to be submitted to the Governing Body.
• 2.4 Once the Governing Body has examined the report and reached its conclusions, the report of the Mission shall be forwarded to the Fijian Government.
• 2.5 This Direct Contacts Mission is established at the consent and invitation of the Fijian Government.
• 2.6 The members of the Mission must be able to interview freely all the parties or persons identified in Section 5.0 in the acquisition of evidences, so as to be fully and objectively informed of all the aspects of the issues and matters raised in Section 1.4.

3.0 SCOPE OF THE MISSION

• 3.1 The Contacts Mission’s basic terms of reference, emanating from the request by the Committee on Freedom of Association under Section 1.4 and the call echoed in the resolution adopted at the 15th Asia and Pacific Regional Meeting, is to cover all matters relating to freedom of association, including legislative and practical application of this fundamental principle, including other relevant compliance matters.

4.0 COMPOSITION OF THE MISSION

• 4.1 As the result of the discussion meeting between the ILO Director-General elect, Mr Guy Ryder and the Fijian Minister for Labour, Industrial Relations and Employment, Mr Jone Usamate at the International Labour Conference in Geneva on 14th June 2012, the members of the ILO Direct Contacts Mission to Fiji are –
  • (a) The Honourable Judge Koroma from Sierra Leone – Leader of the Mission;
  • (b) Ms Karen Curtis – Deputy Director of the International Labour Standards Department; and
  • (c) Ms Christine Bader – Officer of the International Standards Department.

5.0 SCHEDULE OF MEETINGS

• 5.1 To enable the Direct Contacts Mission to accomplish its task, it is therefore of utmost importance that the Mission is able to meet freely with the various parties to the pending complaint, as well as with high-level Government officials and non-governmental actors of relevance to the issues dealt with in the case.
• 5.2 In this regard, the Office of the Minister for Labour, Industrial Relations and Employment, in liaison with the Office of the ILO Director for South Pacific, will organize a schedule of meetings for the Mission with the following dignitaries and people –
  • (a) His Excellency the Prime Minister, Commodore Josaia Voreqe Bainimarama;
  • (b) The Attorney General, Mr Sayed-Khaiyum;
  • (c) The Chief Justice, Mr Anthony Gates;
  • (d) The Chairperson of the Public Service Commission;
  • (e) The Acting Solicitor General, Mr Sharvada Sharma;
  • (f) The Minister of Foreign Affairs and International Cooperation;
  • (g) The Chairperson of the Constitutional Commission;
  • (h) The Executives of the Fiji Trades Union Congress (FTUC);
  • (i) The Executives of the Fiji Islands Council of Trade Unions (FICTU);
  • (j) The Executives of the Fijian Teachers Association (FTA);
  • (k) The Executives of the Fiji Commerce and Employers Federation (FCEF);
  • (l) The Executives of the Fiji Chamber of Commerce and Industries (FCCI);
  • (m) The Minister for Labour, Industrial Relations and Employment; and
  • (n) Such other persons considered relevant.
• 5.3 The Mission will also meet with the Minister for Labour, Industrial Relations and Employment, both at the very beginning of the visit to explain the objectives, purpose and conduct of the Mission and at the end for a debriefing.

6.0 DURATION

• 6.1 The Mission will be in Fiji to undertake its schedule of meetings and facts finding for a period of one week, between Monday, 17th September 2012 and Friday, 21st September 2012 inclusive.

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• APPENDIX IV
• Draft mission schedule

• Day/Time	Name	Position/Organization	Location
  Sunday, 16 September 2012
  Delegation arrives on Air Pacific FJ392 (Nadi) at 07.05 and will immediately be driven to Suva.
  Dinner (19.00)	UNRC and core team		ILO Office
  Monday, 17 September 2012
  09.00–10.30	Minister Jone Usamate and senior staff	Minister of Labour, Industrial Relations and Employment	Minister’s Office
  11.00–12.30	Meeting with FTUC	President/General Secretary	ILO Office
  14.00–15.30	Meeting with FCEF	President/CEO and Board	FCEF Board Room
  16.00–17.30	Meeting with FICTU and FTA	President/General Secretary	FICTU Office
  Tuesday, 18 September 2012
  The Ministry of Labour, Industrial Relations and Employment will organize the following meetings which will be conducted during Tuesday, Wednesday and Thursday: ■ Prime Minister Commodore Josaia Voreqe Bainimarama ■ Attorney-General and Minister for Justice, Anti-Corruption, Public Enterprises, Communications, Civil Aviation, Tourism, Industry and Trade, Mr Aiyaz Sayed-Khaiyum ■ Chief Justice ■ Minister of Foreign Affairs ■ Solicitor General ■ Chairperson of Public Service Commission ■ Chairperson of the Constitutional Commission
  Wednesday, 19 September 2012
  08.30–09.30	Breakfast	Members of the Diplomatic Corps	Holiday Inn
  Thursday, 20 September 2012
  09.00–10.00	Fiji Mine Workers Union	Joseva Sadrau, President Hancy Peters, General Secretary	ILO Office
  10.00–11.00	Father Kevin Barr	Ex-Chair of Wages Council (independent)	ILO Office
  Friday, 21 September 2012
  11.00–11.45	FTUC	President/General Secretary	ILO Office
  13.00–13.45	FCEF	President/CEO and Board	FCEF Board Room
  14.00	Debriefing Minister Jone Usamate and senior staff	Minister of Labour, Industrial Relations and Employment	Minister’s Office
  15.30	Depart Suva for Nadi
  Saturday, 22 September 2012

APPENDIX V

Terms of reference for the ILO Direct Contacts Mission (17–21 September 2012)

Scope of the Mission

(a) To review the impact of the Essential Industries Decree 2011 (“Decree”) on essential industries, in particular –

• (i) whether the aims and objectives of the Decree are in conflict with the fundamental rights of workers and employers in an essential industry;
• (ii) whether workers in an essential industry have been able to collectively organise and form unions;
• (iii) whether workers in an essential industry have been able to reach collective agreements with their employers;
• (iv) whether workers in an essential industry have been able to collectively agree with employers on a fair means of resolving employment disputes;
• (v) whether the workers in an essential industry, in effect, now have better terms and conditions than what was prevalent before.

(b) To assess whether Fiji has adequate laws and processes to effectively investigate, prosecute and adjudicate complaints of assaults, intimidation and harassment by any person, including any trade union official;

(c) To review the terms and conditions applicable for public servants, in particular, whether public servants have the right to form and join trade unions, and whether they are entitled to the fundamental rights and principles at work;

(d) To assess whether public servants have recourse to have their individual grievances addressed by an independent judiciary;

(e) To assess whether unions representing public servants are prevented from negotiating terms and conditions for public servants;

(f) To assess whether trade unions, workers and employers are able to hold meetings and associate, in light of the removal of the Public Emergency Regulations;

(g) To assess whether complaints made against the Fijian Government are with respect to concerns of all workers in Fiji, or whether such complaints are only made by a select few trade unionists for their own personal, political or pecuniary interests;

(h) To genuinely assess the situation of workers and employers in Fiji, without simply heeding to what is being stated by a select few trade unionists (as was done by the Committee of Experts and the Committee on Freedom of Association);

(i) To discuss with Government officials on the various reforms undertaken by Government to preserve and create jobs for workers, to sustain industries essential to Fiji, and to improve living standards of all Fijians; and

(j) To assess Fiji’s commitment to ILO Conventions, in light of the recent ratification by Fiji of numerous ILO Conventions.

Schedule of Meetings of the Mission

Instead of just meeting the executives of FTUC, FICTU and FTA, the Mission must also meet directly with workers employed in essential industries. In particular, they must meet the workers’ representatives in industries such as the airline industry (Air Pacific), factory workers’ representatives, workers employed in financial and banking sectors. They must also meet numerous other trade union officials recommended by Government and the employers, rather than only meeting with the executives of FTUC and FICTU.

The Mission must also meet with the employers in essential industries, including Air Pacific, employers in the banking and financial sector (FRCA, ANZ, Westpac, BSP, Bank of Baroda, Bred Bank), telecommunications industry (FBCL, TFL, FINTEL), and the public utilities industry (FEA and WAF).

They must also meet with the Commissioner of Police, Commissioner of FICAC, and the Director of Public Prosecutions.

Composition of the Mission

As made clear to the ILO by the Prime Minister in his letter of May 2012, the Mission must be objective, transparent, fair and all-inclusive.

Considering that the Mission comprises persons who closely associate with the ILO Committee of Experts, the Committee on Freedom of Association, ITUC, and the ILO Labour Standards Division, the Fijian Government wishes to have an undertaking from the mission that it will be objective, fair and transparent in its deliberations with relevant stakeholders in Fiji and that its final report will reflect the good governance principles espoused above.

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APPENDIX VI

Explanatory note on the scope of the ILO direct contacts mission

The objectives and purpose of the ILO direct contacts mission, called for by the Committee on Freedom of Association and accepted in the Prime Minister’s letter of May 2011 to the ILO Director-General, are to clarify the facts and assist the Government and the social partners in finding appropriate solutions to the freedom of association matters raised before the ILO supervisory bodies, including as regards:

– the Essential National Industries Decree No. 35 of 2011;

– the Employment Relations Promulgation of 2007;

– the Employment Relations Amendment Decree No. 21 of 2011;

– the Administration of Justice Decree of 2009; and

– allegations of restrictions to freedom of association, assembly and expression as set out in various communications received by the ILO and shared with the Government.

The mission will carry out its task in an objective, fair and transparent manner with a view to bringing all views expressed to it to the attention of the Committee on Freedom of Association so that it may examine the outstanding matters in full knowledge of the facts.

The direct contacts mission and its reports will provide an important opportunity for all parties to be heard and to show the steps taken to resolve outstanding cases. To this end, the mission considers it to be of particular value to meet with Government authorities named in the draft mission schedule and welcomes the further suggestion made by the Government to meet with the Commissioner of Police, the Commissioner of FICAC, and the Director of Public Prosecutions.

The mission is guided by its concerns and responsibilities for assisting the parties in ensuring respect for the obligations under the relevant international labour standards.

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APPENDIX VII

Letter from Judge Koroma, dated 18 September 2012, p.m. and hand delivered to the Honourable Minister for Labour, Industrial Relations and Employment

208FIJ/MoL

18 September 2012

Honourable Jone Usamate Ministry for Labour, Industrial Relations and Employment Level 4, Civic House Suva

Dear Honourable Minister

I would like to express my appreciation for your having received the mission yesterday and the useful information you were able to provide us. Unfortunately, following that constructive meeting, and your request to await further indication before proceeding with our meetings, our mission has suffered certain delays.

In this regard, I would like to point out that our mission is expected to be concluded on Friday of this week. The current delay is restricting our capacity to be fully informed by all relevant governmental authorities and reflect their views in our report. I would therefore be grateful if you could indicate how best to proceed so that I might carry out the mandate that has been bestowed upon me by the ILO Governing Body to the best of my ability.

Given the importance of this mission for the Government of Fiji, I would respectfully request, in light of the limited time available to the mission, an audience with His Excellency the Prime Minister Commodore Voreqe Bainimarama and the Honourable Attorney-General and Minister for Justice Mr Aiyaz Sayed-Khaiyum, at their earliest convenience.

Please accept, Honourable Minister, the assurances of my highest esteem.

(Signed)

Judge Abdul G. Koroma

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APPENDIX VIII

Letter dated 18 September and hand delivered on 19 September 2012 a.m. signed by the Permanent Secretary of the Prime Minister’s Office

Honourable Judge Abdul G. Koroma c/- International Labour Organisation 8th Floor, FNPF Place Victoria Parade Suva

Dear Judge Koroma

ILO Direct Contacts Mission

1. I refer to our 17 September 2012 meeting with respect to your visit to Fiji.

2. As you are aware, the Honourable Prime Minster of Fiji, in his 23 May 2012 letter (“Letter”) to the Director-General of ILO, welcomed an independent, transparent and objective fact-finding visit to Fiji.

3. In the Letter, the Prime Minister had also made it clear to the ILO Director-General that the Fijian Government will provide ILO with the terms of reference for such a visit.

4. Unfortunately, as a result of miscommunication between the respective Fijian ministries, the terms of reference provided by the Ministry of Labour did not articulate the correct scope of such a visit.

5. Please find attached the terms of reference, which I presented to you and your team last night, and which is what the Fijian Government wants the visit to carry out its work under.

6. Given the above, we advise that your visit, as currently constituted under the terms of reference as provided by you and which you have stated cannot be replaced, can no longer continue.

7. As per the Letter, the Fijian Government will be happy to welcome a visit under the attached terms of reference.

8. Accordingly, it is best that your and your team’s departure be expedited to facilitate a visit under the attached terms of reference. We regret any inconvenience.

9. The Fijian Government reiterates its position that as a member of ILO, it welcomes an independent fact-finding visit under the attached terms of reference. It is also reiterates that it is firmly committed to promoting and safeguarding the rights of all workers and employers in Fiji, inter alia, by promoting economic growth and the ensuring the long-term viability of industries in Fiji.

Thank you.

Yours sincerely

(Signed)

Pio Tikoduadua Permanent Secretary, Office of the Prime Minister

18 September 2012

Attach.

Terms of reference

Scope of the Mission

(a) To review the impact of the Essential Industries Decree 2011 (“Decree”) on essential industries, in particular –

• (i) whether the aims and objectives of the Decree are in conflict with the fundamental rights of workers and employers in an essential industry;
• (ii) whether workers in an essential industry have been able to collectively organise and form unions;
• (iii) whether workers in an essential industry have been able to reach collective agreements with their employers;
• (iv) whether workers in an essential industry have been able to collectively agree with employers on a fair means of resolving employment disputes;
• (v) whether the workers in an essential industry, in effect, now have better terms and conditions than what was prevalent before.

(b) To assess whether Fiji has adequate laws and processes to effectively investigate, prosecute and adjudicate complaints of assaults, intimidation and harassment by any person, including any trade union official;

(c) To review the terms and conditions applicable for public servants, in particular, whether public servants have the right to form and join trade unions, and whether they are entitled to the fundamental rights and principles at work;

(d) To assess whether public servants have recourse to have their individual grievances addressed by an independent judiciary;

(e) To assess whether unions representing public servants are prevented from negotiating terms and conditions for public servants;

(f) To assess whether trade unions, workers and employers are able to hold meetings and associate, in light of the removal of the Public Emergency Regulations;

(g) To assess whether complaints made against the Fijian Government are with respect to concerns of all workers in Fiji, or whether such complaints are only made by a select few trade unions for their own personal, political or pecuniary interests;

(h) To genuinely assess the situation of workers and employers in Fiji, without simply heeding to what is being stated by a select few trade unionists (as was done by the Committee of Experts and the Committee on Freedom of Association);

(i) To discuss with Government officials on the various reforms undertaken by Government to preserve and create jobs for workers, to sustain industries essential to Fiji, and to improve living standards of all Fijians; and

(j) To assess Fiji’s commitment to ILO Conventions, in light of the recent ratification by Fiji of numerous ILO Conventions.

Schedule of Meetings of the Mission

Instead of just meeting the executives of FTUC, FICTU and FTA, the visit must also meet directly with workers employed in essential industries. In particular, they must meet the workers’ representatives in industries such as the airline industry (Air Pacific), factory workers’ representatives, workers employed in financial and banking sectors. They must also meet numerous other trade union officials recommended by Government and the employers, rather than only meeting with the executives of FTUC and FICTU.

The visit must also meet with the employers in essential industries, including Air Pacific employers in the banking and financial sector (FRCA, ANZ, Westpac, BSP, Bank of Baroda, Bred Bank), telecommunications industry (FBCL, TFL, FINTEL), and the public utilities industry (FEA and WAF).

They must also meet with the Commission of Police, Commissioner of FICAC, and the Director of Public Prosecutions.

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APPENDIX IX

Letter from Judge Koroma to His Excellency, the Prime Minister, dated 19 September 2012

208FIJI/PM

19 September 2012

Commodore Josaia V. Bainimarama Prime Minister of Fiji Office of the Prime Minister Level 4, New Wing SUVA

Excellency,

ILO Direct Contacts Mission

I refer to the communication from your office of 18 September 2012 in relation to the abovementioned matter.

In my letter also dated 18 September 2012 to the Honourable Minister of Labour, Industrial Relations and Employment, I had requested audience with Your Excellency regarding the object and purpose of my mission to Fiji, which I had hoped would clarify any misunderstanding and the clear the way for this mission to be carried out successfully.

It is unfortunate that this opportunity was not made available prior to receipt of the abovementioned letter of the Permanent Secretary, Office of the Prime Minister.

It was our hope that such a meeting with Your Excellency would have facilitated a common understanding and enabled the mission to achieve its objectives. Moreover, I am of the view that the terms of reference attached to the Permanent Secretary’s letter are fully encompassed within the broader terms that had been provided by the Minister of Labour and upon which we had begun our work on Monday, 17 September 2012.

Please allow me to assure you, Your Excellency, that I will faithfully transmit to the competent ILO bodies all information and documents received by the mission in a fair and impartial manner.

Accept, Excellency, the assurances of my highest esteem.

(Signed)

Judge Abdul G. Koroma

Copy: Mr Jone Usamate, Minister for Labour, Industrial Relations and Employment

Mr Pio Tikoduadua, Permanent Secretary, Office of the Prime Minister