Individual Case (CAS) - Discussion: 2013, Publication: 102nd ILC session (2013)

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

The Government provided the following written information.

As regards transparent rules of governance, in March this year, the draft Constitution was released which guarantees universally accepted principles and values of equality and justice to all Fijians. Consultations were held and numerous submissions were received on the draft Constitution. After consideration of all the submissions and after making such improvements as necessary, the draft Constitution will be promulgated by August 2013. It contains an extensive chapter on fundamental human rights, which guarantees the promotion and protection of rights and freedoms of all Fijians including workers, and, for the first time in Fiji, there are provisions guaranteeing socio-economic rights. Under the draft Constitution elections must be held no later than 30 September 2014. The voting system adopted in the draft Constitution is the open-list system of proportional representation which will ensure that a truly free and fair parliamentary election is held in 2014. On 10 June 2013, an international coordinating committee comprising ambassadors and representatives from Australia, France, India, Indonesia, Japan, Republic of Korea, New Zealand, United Kingdom, and United States as well as representatives from the European Union, United Nations Development Programme and the Commonwealth Secretariat, has been convened in Fiji to discuss assistance for the elections. The coordinating committee will be responsible for organizing and coordinating member countries’ assistance for the 2014 elections. This partnership with the international community through the Coordinating Committee will help Fiji achieve an election that is conducted in a smooth, transparent and apolitical manner, using best international practices, unlike elections in the past.

With respect to labour reforms, notable reforms have been undertaken by the Government to preserve and create jobs, sustain industries essential to the economy, and improve the living standards of all Fijians. These include substantial reduction in income and corporate taxes for over 99 per cent of all Fijian workers and employer organizations. Labour laws are currently being reviewed by the tripartite partners to ensure conformity with ILO instruments ratified. A report of the tripartite body will be presented to the Minister of Labour later this year. The workers’ compensation scheme is also being reviewed with a view to implementing a no-fault compensation system. The Government has also established a national employment centre to generate employment.

The Government affirms that, concerning legal and institutional processes, in the area of trade union rights and civil liberties, there are adequate and effective investigation and judicial processes in place to ensure the protection of the fundamental rights of all Fijians. All cases of breaches of criminal law will be investigated and will be independently prosecuted by the independent Office of the Director of Public Prosecutions.

As to freedom of association and movement, the Public Emergency Regulations were revoked in January 2012. All persons including trade unions, workers, political parties and civil society groups can meet in any public place without the need to obtain a permit.

In relation to fundamental principles and rights at work of government employees, the law guarantees the right to join trade unions and to judicially challenge any decision which adversely affects the employee, including termination of employment. Collective agreements have recently been concluded between the Government and public service unions with respect to government wage earners.

With regard to the essential National Industries Decree, this Decree upholds the principles on freedom of association and collective bargaining. Workers in essential industries have the right to organize and form bargaining units of their choice, the right to independently elect their representatives, the right to collectively bargain, the right to strike and to devise their own dispute resolution processes. The Decree only applies to certain industries essential to the Fijian economy and does not cover the majority of the workers in Fiji that are not part of these industries. The Decree has been successfully implemented without any government interference. In one essential industry, workers have been able to negotiate salary increases of up to 25 per cent, guaranteed pay increases and also a share of the profits. In any event, the incoming Parliament in 2014 is empowered by the Draft Constitution to amend or repeal any existing laws, including the ones mentioned in the Committee of Experts’ report.

In addition, before the Committee, a Government representative highlighted the substantial reforms that the Government was undertaking to create transparent rules of governance and a legal system that was based on substantive equality and justice. The speaker stated that the hallmark of these reforms was the publication of the draft Constitution which guaranteed universally accepted principles, including common and equal citizenry, prohibition of all forms of discrimination, a secular State, eradication of systemic corruption, protection and promotion of human rights, an independent judiciary, and a voting system based on one person, one vote, one value. Following the release of the draft Constitution in March 2013, all Fijians had been provided with the opportunity to make submissions in April and May. During this period, over 1,000 written submissions had been received and numerous public consultation forums had been held throughout Fiji. Following a thorough consideration of all submissions and after making such improvements as might be necessary, the draft Constitution would be promulgated by August 2013. It contained an extensive chapter on human rights, including provisions guaranteeing freedom from slavery, servitude, forced labour and human trafficking; freedom from cruel and degrading treatment; the right to executive and administrative justice; freedom of expression; freedom of assembly; freedom of association; the right to fair employment practices; the right to humane and proper working conditions; and the right of all workers to economic participation and to a just minimum wage. For the first time, discrimination on the grounds of pregnancy and marital status, among many other grounds, was prohibited, and all Fijian workers enjoyed socio-economic rights under the draft Constitution, including the rights to food and water, housing and sanitation, health, and social security schemes. The speaker added that Fiji was making substantial progress towards holding truly democratic and transparent parliamentary elections, which under the draft Constitution must be held before 30 September 2014. In July 2012, Fiji had commenced its electronic voter registration programme. Out of a total population of 900,000, more than 500,000 voters over the age of 18 years had been registered. In addition, the speaker referred to a number of significant labour reforms. For instance, the Government was working towards introducing a national minimum wage. The Government had also activated a tripartite process under the Employment Relations Advisory Board (ERAB) to review the existing labour laws. A report would be submitted by the ERAB later in 2013 to the Minister of Labour for consideration. The Government also considered making the necessary amendments to the labour law to ensure compliance with a large number of ILO instruments which Fiji had recently ratified.

The Government representative stated that, in light of the above constitutional and labour reforms, many of the issues raised in the Committee of Experts’ report did not reflect the correct legal and factual situation in Fiji. With respect to trade union rights and civil liberties, the Government had the necessary processes in place to ensure that the fundamental rights of all Fijians were adequately protected and enforced. All breaches of criminal law and public order were investigated and prosecuted in accordance with established legal procedures. All incidents of criminal offences were independently and thoroughly investigated upon the lodgement of a complaint with the police department. All criminal prosecutions were conducted by the Office of the Director of Public Prosecutions without any interference. Ultimately, any criminal proceeding would be adjudicated upon by an independent judiciary. The speaker recalled that the Public Emergency Regulations (PER) had been revoked in January 2012. The Public Order Act had been improved to include internationally accepted and modern provisions to combat terrorism and other serious public order offences. All persons and entities were now able to associate, organize and meet in any public place without the need for a permit. Indeed, trade unions, political parties and civil society groups had been regularly holding public meetings, and freely expressing their views in the media. All forms of media censorship had now been removed. As regards public servants, the Public Service (Amendment) Decree of July 2011 expressly guaranteed the fundamental principles and rights at work of all Government employees, including their right to join trade unions. Public servants also had access to courts for judicial review of decisions against them, as recently decided by the High Court of Fiji. Concerning the Essential National Industries Decree (ENID), the speaker indicated that the Decree aimed to create growth and ensure the long-term viability of essential industries, protect jobs, and at the same time safeguard the fundamental rights of workers. The Decree upheld the right of workers to form and join bargaining units of their choice, which could also be registered as a trade union, and the right to elect their own representatives who were empowered to bargain collectively. The employer was obligated to recognize and bargain with these representatives. The Decree was comparable to similar laws in other countries. The Government was pleased to report that workers in essential industries had been able to freely organize, form bargaining units and elect representatives. They had reached collective agreements with employers and had devised their own dispute resolution processes. All this had been done without any Government or third party intervention.

The Government representative reaffirmed his Government’s strong commitment to not only promoting and safeguarding the rights of workers and employers in Fiji, but also to sustaining and creating employment and economic growth. Considering that it was important for the ILO to be fully aware of the actual facts and circumstances in Fiji, he was pleased to announce that the Prime Minister of Fiji had conveyed in May to the ILO Director-General that Fiji welcomed a visit of the ILO direct contacts mission. In light of the anticipated promulgation of the new Constitution, the need for further harmonization of national laws and the preparations of the 2014 parliamentary elections, the Government looked forward to receiving the mission in December 2013 upon the finalization of the terms of reference. The Government was currently liaising with the Office to finalize the terms of reference, so as to ensure that they were acceptable to all parties.

The Worker members noted the comments which had been made by the International Organisation of Employers (IOE) in 2012 and the discussions on the mandate of the Committee of Experts and the link between freedom of association and the right to strike which had taken place during the general discussion. After recalling the provisions of Convention No. 87, they emphasized that freedom of association was a human right and constituted a precondition for healthy collective bargaining and social dialogue for the benefit of employers, workers and social peace. This Committee and the Committee on Freedom of Association (CFA) contributed to resolving the difficulties surrounding the application of that fundamental right throughout the world. The Worker members also emphasized that they fully supported the Committee of Experts and the legal implications of its comments and also the existence of the right to strike as resulting from a combined reading of Articles 3 and 10 of Convention No. 87.

Since two years, the message from the ILO and its constituents could not have been clearer: The Government was going in the wrong direction and must immediately get back on course. On each occasion, however, the Government had tightened the screws on the trade union movement, had adopted new provisions that were even more repressive, had banned meetings and had prosecuted trade unionists engaging in legitimate trade union activities. The Worker members had drawn up a detailed list of the numerous past criticisms formulated by the ILO supervisory bodies, the ILO Governing Body and the ILO Director-General over the previous two years. They recalled that in June 2011, the present Committee had called on the Government to establish, with ILO assistance, the necessary conditions for genuine tripartite dialogue. The same year, the Credentials Committee had considered that the Government had deliberately failed to appoint the workers’ delegate, Mr Anthony, who, moreover, had been attacked by members of the armed forces upon his return to the country. In August 2011, the ILO Director-General had publicly expressed his deep concern regarding the arrest and prosecution of two trade union leaders, and a high-level mission had visited the country. In September 2011, the Director-General had expressed regret at the publication by the Government of the implementing regulations for the ENID and had asked it to restore the dialogue with the workers’ and employers’ organizations. In December 2011, the 15th Asia and the Pacific Regional Meeting had strongly condemned the acts of the Government and had urged it to accept a direct contacts mission. The Committee of Experts, in the observation due to have been examined by the present Committee in 2012, had expressed deep concern at the numerous allegations of assault, harassment and intimidation and the restrictions on freedom of association resulting from the ENID. In September 2012, the direct contacts mission which had visited the country had been expelled. Subsequently, the Governing Body had asked the Government at its November 2012 session to accept a new direct contacts mission with the mandate that had been previously agreed on the basis of the conclusions and recommendations of the CFA (Case No. 2723), and to find, with the social partners, appropriate solutions that complied, in law and in practice, with the principles of freedom of association. The CFA had emphasized that the case of Fiji was one of the five most serious and urgent cases of violations concerning the right to organize, collective bargaining and social dialogue. Having noted the lack of cooperation by the Government, the Governing Body, in March 2013, had repeated its request to find appropriate solutions and to accept a direct contacts mission. The Government had not accepted that the mission should go to the country in time for a report to be submitted to the Governing Body in March 2013, and was now stating that it could receive the mission in December. All of that was unacceptable, since the Government was merely seeking to delay the discussion within the Governing Body and would certainly find other excuses later, for example the 2014 elections. Not only had no progress been achieved to bring law and practice into line with the Convention but the situation had also grown even worse, especially because of the changes to the Constitution which were likely to undermine the fundamental rights of workers, including that of freedom of association.

With regard to the acts of violence against trade unionists, the Committee of Experts had asked the Government to expedite without delay an independent investigation into the alleged acts of violence, harassment and intimidation against Mr Felix Anthony, Mr Mohammed Khalil, Mr Attar Singh, Mr Taniela Tabu and Mr Anand Singh. No measures had been taken by the Government, even though, contrary to what it had stated in its report, complaints had been filed in July 2012. Regarding the arrest and detention of trade unionists (Mr Felix Anthony, Mr Daniel Urai and Mr Nitendra Goundar), their cases were still pending. Regarding the legislation, the Worker members emphasized that many of the powers granted in the repealed PER had been reproduced and expanded in the Public Order (Amendment) Decree of 2012 (POAD) and, contrary to what had been requested by the Committee of Experts, the Government had not repealed the POAD. While noting that section 8 of the POAD had been suspended during the process of revising the Constitution, the Worker members had expressed concern at the fact that it would soon be reactivated and that other repressive provisions remained in force. Not only had the ENID not been repealed or amended but it also appeared that the Government was on the point of extending its scope. Regarding the provisions of the Employment Relations Promulgation of 2007 (ERP), amendments to which had been called for by the Committee of Experts for several years in order to bring them into line with the Convention, the Worker members stated that the Government had not adopted any measures in that regard and that the meeting of the tripartite ERAB subcommittee which had been held in August 2012 for that purpose had not yielded any results.

The Worker members also expressed concern with regard to the Political Parties Decree and the draft new Constitution, which represented a threat to the exercise of freedom of association. It was clear that the Fijian dictatorship was treating the ILO with contempt. The authoritarianism against which the Organization had warned as of 2011 had done nothing but increase and none of the information supplied to the Committee by the Government suggested that the situation would really change.

The Employer members stated that the Committee of Experts had undertaken a solid analysis of this case, identified in 2012 as a “double footnote case” on the basis of numerous troubling facts. They agreed with the Worker members that the Government was not on the right path. With reference to the ILO direct contacts mission of September 2012, the Employer members considered that it was absolutely unacceptable for the Government to undermine the mandate bestowed upon the mission by the international community. While being encouraged by the Government’s willingness to accept another direct contacts mission, they were concerned about its timing and the fact that the Government still wished to negotiate its mandate, which was generally unacceptable to the Employer members. They further indicated that they shared the Committee of Experts’ concerns about the acts of assault, harassment, intimidation and arrest of trade union leaders for the legitimate exercise of freedom of association, as well as about the POAD, which placed restrictions on freedom of assembly and expression, with prison sentences of up to five years for meeting without permit. They also expressed concern about some provisions of the ERP, especially those restricting internal trade union governance, for example the requirement for trade union officers to have worked in the relevant trade for a certain period of time. Further to the Committee of Experts’ comments concerning certain ERP provisions relating to industrial action, they recalled their position on the right to strike. Lastly, the Employer members stated that they were encouraged by the fact that the new Constitution would reflect the fundamental Conventions and hoped that the tripartite ERAB would be able to continue its work.

The Worker member of Fiji indicated that since 2009 the Government had been constantly reaffirming to the international community its commitment to workers’ rights and core labour standards. In parallel, the Government had issued decree after decree curtailing or denying workers their fundamental rights both in government-owned enterprises and in private entities. These decrees had denied civil service workers the right to collective bargaining and redress of grievances and disputes, had cancelled all existing collective agreements and had prohibited the deduction of union dues. Moreover, the direct contacts mission had been expelled as soon as it had convened its work in Fiji. Numerous attempts, including two resolutions of the Governing Body calling on the Government to accept the Mission back, had gone unheeded. The Government was attempting to dictate to the ILO the terms on which it would allow a direct contacts mission, as evidenced by the Prime Minister’s most recent communication to the ILO. The constitutional review process previously announced by the Government had been abandoned. The Government had now taken upon itself to rewrite the Fiji Constitution disregarding the 7,000 submissions which the public had made to the Constitution Review Commission. Media freedom remained curtailed, and the international community, while encouraging free and fair elections, remained seriously concerned about the process. Intimidation and assault of trade unionists and other citizens including deaths and other violations of human rights had still not been investigated despite the fact that the perpetrators had been identified. The Government had granted itself absolute immunity from any prosecution for actions or crimes that might have been committed or would be committed until the first sitting of the new Parliament. The Government’s rhetoric on accountability, transparency and fight against corruption was not implemented in practice.

The tripartite ERAB had met and agreed unanimously to recommend to the Government to revoke the decrees that violated the core ILO Conventions. These included the Administration of Justice Decree and its amendment, the ENID, the Civil Service Decree, the POAD and the Media Decree. The ERAB meetings had been abruptly stopped without explanation, and the agreement to recommend revocation of the decrees had since been ignored. Just prior to this Conference, the Government had recommenced discussions on the review of the labour legislation, but had refused to deal with the Decrees. A meaningful review of the labour law could not be envisaged without the revocation of these decrees. While the PER had been revoked in January 2012, the POAD had been issued one week later. This even more draconian Decree seriously curtailed rights and freedoms and expanded the definition of treason and sedition to almost any activity or pronouncement in opposition to the regime. The provision on the requirement for permits for meetings had been temporarily suspended but the police and the military continued to monitor any gathering. As regards the public sector, the Government had claimed that public sector employees enjoyed the same guarantees for redress of their grievances as other employees covered by the ERP. This was factually incorrect. Civil servants did not enjoy the right of access to an independent labour court or arbitration tribunal. Moreover, the speaker informed the Committee that, on 6 May 2013, one month before the Conference, the Government had issued a circular creating a task force with the mandate to report on the possibility of extending the coverage of the ENID to local government workers which included staff, gardeners, cleaners and those doing the most menial work. The sugar industry had been put on notice that it could also be included under the ENID. To further suppress unions and workers, the Government had issued decrees in January 2013 defining any trade union official, employee or consultant as “public officers” similar to civil servants, thus prohibiting them from taking part in any political activity.

The speaker stated that most unions were barely surviving, and some had actually had to close their offices and operate from homes due to the impact of the aforementioned Decrees. Many unions were not able to operate fully and meet the expectations of their members owing to the many restrictions imposed as well as financial constraints due to the removal of the deduction of union dues. Union officials were barred from entering workplaces. Collective bargaining in Fiji was now a luxury for just a few unions. The majority of workers in Fiji did no longer have the right to collective bargaining and for the first time in Fiji’s history, an estimated 60 per cent of unionized workers were living below the poverty line. Since the last Conference, the situation had actually worsened rather than improved, and the Government remained determined to destroy the trade union movement in Fiji.

The Employer member of Fiji expressed appreciation to the ILO Country Office in Suva for its tireless efforts in trying to bring the social partners together to address issues concerning the world of work during these difficult times. On 23 May 2012, the Prime Minister had written to the ILO Director-General to explain Fiji’s position and reasons for adopting the policies that had raised concerns, and to map out the way forward, including the Government’s aspirations to a non-ethnic based Constitution, free and fair elections and modernization of labour laws. In this regard, the speaker indicated that the ERAB had first met on 11 April 2012 to initiate steps to reform and modernize Fiji’s labour laws. A subcommittee of the ERAB had been appointed, and ILO technical and financial assistance had been provided to the tripartite partners to ensure quality deliberations. Tripartite partners had met on eight occasions beginning 16 May 2012 and concluding on 13 August 2012. Meetings had recommenced one year later from 15 to 17 May 2013 and 27 to 28 May 2013. The speaker indicated that the subcommittee had been set up for the specific purpose of assisting the ERAB in initiating steps to reform and modernize the current labour laws relative to the eight ILO core Conventions and other relevant Conventions ratified by Fiji, and to amend the ERP, so as to domesticate four newly ratified ILO Conventions, namely the Human Resources Development Convention, 1975 (No. 142), the Private Employment Agencies Convention, 1997 (No. 181), the Maternity Protection Convention, 2000 (No. 183) and the Maritime Labour Convention, 2006 (MLC, 2006). The speaker underlined that the ERAB subcommittee had reviewed the ENID and the Employment Relations (Amendment) Decree of 2011. The ENID was commonly viewed as favouring the employers, and the Fiji Commerce and Employers Federation freely admitted that some of its members supported this Decree. The Employment Relations (Amendment) Decree had excluded all civil servants from the ERP, and thus from provisions guaranteeing collective bargaining and dispute resolution mechanisms. The ERAB subcommittee had resolved that some provisions of these two Decrees were inconsistent with ILO Conventions Nos 87 and 98 and had agreed to recommend the repeal of both Decrees, while capturing into the existing ERP some of the pertinent concerns of the Government that had been accommodated in the ENID. The speaker highlighted that a tripartite forum was currently receiving the Government’s submission on the proposed changes, and meetings had last been adjourned on 28 May 2013 with a view to reconvene in July. The speaker believed that tripartite dialogue could work to the benefit of the social partners, and assured that the employers of Fiji would continue to use this process to address labour concerns. He appealed to the ILO constituents for their understanding and empathy in relation to Fiji. It would not be in the best interest of the global community to isolate Fiji any further. He also considered that the Government should be commended for bringing about many positive reforms.

The Worker member of Indonesia expressed concern that civil liberties in Fiji were increasingly threatened. She recalled the issues raised in the observation formulated by the Committee of Experts, such as the numerous acts of assault, harassment, intimidation and arrest of trade union leaders and members for their exercise of the right to freedom of association. Moreover, stressing that the PER were certain to give the authorities any excuses to prevent a trade union from ever holding a public meeting, the speaker called on the international community to act.

The Government member of Papua New Guinea recalled that the Government had engaged the tripartite ERAB and its subcommittee to review current labour laws to ensure compliance with all ratified ILO Conventions, including Convention No. 87. The Government had made significant progress to address the issues raised by the Committee of Experts concerning the application of this Convention, as evidenced by the progress of the ERAB and its subcommittee, which had met a total of 16 times within the last year. The speaker expressed the hope that the Government would give due consideration to the comments of the Committee of Experts, as well as the amendments recommended by the tripartite ERAB, to resolve issues relating to compliance with the Convention. The Government had engaged in an inclusive and open process in the development of the new Constitution, which was due for completion by August 2013. This Constitution would restore civil liberties for workers as well as the general public and pave the way for a democratic election by September 2014. The speaker encouraged the ILO to elaborate terms of reference acceptable to all parties for its direct contacts mission to Fiji, so as to help resolve the issues raised in an objective and transparent manner.

The Employer member of Australia expressed concern regarding the observations of the Committee of Experts, and indicated that the Australian employers supported the private sector in Fiji (whether employers, employees or their representatives) in its efforts to operate in an environment where full freedom was exercised. Australian employers had joined with ILO constituents on multiple occasions in recent years to signify their support for measures to remedy the breaches of freedom of association in Fiji. Regrettably, despite collective action by the Governing Body, the CFA, the Asia and the Pacific Regional Meeting in 2011, the breaches reported by the Committee of Experts had not been rectified. Violations were serious and included interference with trade union rights and civil liberties; acts of assault; arrest and detention; restrictions to freedom of assembly and expression; and a variety of legislative issues. He declared that, while the Employer members had their disagreement concerning this Convention, there was no grey area in this case. The breaches had been found to exist, they were not a matter of nuance, they were serious, and they continued. He urged the ILO direct contacts mission to return to Fiji in the near future, within the framework of the mandate bestowed upon it by the international community.

The Worker member of Japan recalled that the ENID had designated 11 corporations in the finance, telecommunications, aviation, and public utilities sectors as essential industries. Under the ENID, collective bargaining agreements had been abrogated and some bargaining units had been eliminated for not meeting new minimum membership requirements. The ENID also prevented pre-existing unions from representing their members in collective bargaining, and new units could only be registered with the personal approval of the Prime Minister. In addition, the leaders of re-registered unions were required to be employed by the designated corporations they represented, a practice which conflicted with the principle concerning workers’ right to elect representatives of their choice. These measures, as well as the elimination of the deduction of union dues in the essential industries, were a significant setback for workers’ rights, and had had an extremely negative impact on the functioning of the Fiji Bank and Finance Sector Employees Union. With reference to the earlier draft of the Constitution which had been withdrawn, the speaker noted that this draft had contained provisions for workers’ rights, including the repeal of the ENID.

The Worker member of Australia indicated that Australian workers and unions had watched with deep concern and dismay the continuing deterioration of the worker and human rights situation in Fiji. Union members from Australia and New Zealand had tried to visit Fiji in December 2011 to speak with unions, community groups and others to try to find out more about what had happened but they had not been permitted to set foot in the country. She declared that it was hard to believe that the Government had any intention of restoring rights to Fijian workers and unions, or democracy to Fiji. The Political Parties Decree excluded any elected or appointed trade union officer, or officer of any federation, congress, council or affiliation of trade unions from applying for, being a member of, or holding office in a political party. The Decree also prohibited trade union officers from expressing support for a political party. The Government had discarded the draft Constitution prepared by the Independent Constitution Review Commission, which had specifically called for the repeal of the ENID. The speaker called on the Government to immediately repeal the Political Parties Decree and other decrees which had the effect of stripping citizens of their basic rights.

The Government member of the United States expressed deep concern regarding the situation of democracy as well as human and labour rights in the country, particularly with respect to Government measures to restrict the rights of trade unions to meet, organize and exercise fundamental rights; reported acts of harassment and discrimination; restrictions to freedom of assembly and expression; and shortcomings in the legislation that gave rise to serious violations of the principles of freedom of association, the right to organize and collective bargaining. She expressed disappointment that the ILO direct contacts mission of September 2012 had not been allowed to complete its work. The terms of reference developed for this mission had been formulated on the basis of well-established procedures for ILO direct contacts, and included full guarantees that all relevant parties and points of view would be heard objectively and impartially. An important opportunity had been squandered to clarify the facts on the ground and to assist the Government, together with the social partners, in finding appropriate solutions. Considering that the Government was in the process of promulgating a new Constitution, and was undertaking a review of labour legislation, the advice and assistance of the ILO would be especially valuable. It was therefore regrettable that the Government had again proposed that the ILO direct contacts mission be delayed until December 2013. The speaker therefore urged the Government to cooperate constructively with the ILO in order to dispatch an ILO direct contacts mission to the country as soon as possible, under terms of reference that would enable the mission to adequately assist the Government.

The Worker member of France declared that the public service in Fiji was under serious threat. Under the pretext of reducing expenditure, the Government had unilaterally eliminated over 2,000 jobs in the public service by reducing the retirement age from 60 to 55 years, without consulting or negotiating with the trade unions. Public employees were recruited under individual contracts that were not negotiated collectively and therefore offered fewer guarantees. Public service trade unions were denied the possibility of representing or defending their members, as the latter were now excluded from the scope of the ERP. The Public Service (Amendment) Decree, to which the Government had referred, dealt in fact only with the issue of equal treatment and offered no guarantee of collective bargaining or compensatory mechanisms. The circular published by the Government which provided for the introduction of mediation and conciliation procedures in the public service was completely ineffective, since no independent commission had been established to deal with complaints regarding transfers, appointments, promotion and disciplinary measures. There was no mention of any participation in the process by the trade unions. Moreover, and contrary to the Government’s claims with regard to the Public Service (Amendment) Decree, the possibility of lodging an appeal did not exist in practice for public service employees.

The Government member of New Zealand indicated that, despite some deviations from the previously announced roadmap, Fiji had made some positive progress towards preparing for elections next year, including the registration of four political parties and the increasing media coverage and public debate on political issues. Continuing with these efforts would contribute to making the election credible and the outcome acceptable to the people of Fiji. This should include ensuring that basic freedoms, including labour rights, were respected in the process and enshrined in the Constitution, which was in the process of being finalized. It was regrettable that the ILO direct contacts mission had not yet been able to return to Fiji. He reiterated his Government’s support for, and willingness to assist Fiji to return to democracy.

The Government member of Japan indicated that his Government had been encouraging the Government to promote democratization in Fiji through steady dialogue. It would be beneficial for the country to receive the ILO direct contacts mission, to be able to present to the international community its democratization process, including recent developments towards the promulgation of a new Constitution. The speaker welcomed the intention of the Government to accept a visit of the ILO direct contacts mission. He expressed the hope that the Government would receive this mission at the earliest possible date, on the previously agreed upon terms of reference and based on the decision of the Governing Body.

The Worker member of Brazil recalled that several decrees in Fiji currently prevented workers in the public and private sector from exercising their trade union rights. Legitimate union activities could now be deemed criminal as they were liable to be deemed as terrorist acts. Teachers had been excluded from labour legislation, which meant that they had no recourse when they were victims of injustice, discrimination or unequal treatment. Unionized teachers were subjected to constant monitoring and harassment and their conversations were tapped. Children and young persons were raised in a school atmosphere in which they were aware that their teachers were denied fundamental rights. In 2012, the Government had decided unilaterally to reform the retirement system for teachers, who had been obliged to leave their jobs in schools and teaching institutions. These experienced professionals had, either not been replaced or had been replaced by teachers with no prior training, which compounded the negative impact on the quality of teaching. A quality education system, with well-trained teachers working in decent conditions and entitled to exercise, and benefit from, their trade union rights was a sine qua non for the productive development of all nations. Students needed to evolve in a context in which civil liberties, and therefore trade union rights, were respected.

The Government member of Australia declared that his Government, along with its social partners, once again expressed concern at the ongoing violation of human and labour rights in Fiji. Legislation clearly constituted a serious infringement of the principles underpinning the right to freedom of association and collective bargaining as enshrined by Conventions Nos 87 and 98. He reiterated the ILO’s and the international community’s call for the Government to rescind laws that violated ILO Conventions. Decrees severely restricting workers’ rights to freely organize were still in force. In particular, the POAD reproduced key provisions of the PER, which had been lifted on 7 January 2012, thus contravening the recommendations of the high-level mission of August 2011. He acknowledged the decision by the Fiji authorities to grant a permit for the biennial meeting of the Fiji Trades Union Congress in May 2012, though with the condition of police attendance. Fiji workers were among the most affected by the decrees imposed by the Government. Cases of harassment, arrest and intimidation of trade union representatives were an affront to the fundamental principle of freedom of association. He indicated that his Government, along with the social partners, strongly urged the Government of Fiji to respond in full to the Committee of Experts’ observations, as well as to implement its recommendations and those of the CFA, to ensure conformity with the obligations under ratified ILO Conventions. The speaker also urged the Government to work with the ILO to arrange for a direct contacts mission as soon as possible, reflecting the mandate of the Organization.

The Government member of Canada noted with great concern the degree to which freedom of association and protection of the right to organize had been repressed in Fiji in law and practice. Allegations of assault, harassment, intimidation and arrest of trade unionists were alarming, as was the environment of impunity resulting from a lack of investigations or penalties against the perpetrators. He further noted with concern that the 2012 ILO direct contacts mission had not been able to continue its work. In addition, the reported assault against a trade union leader in retaliation for statements made by a colleague at the 2011 session of the Conference was a serious threat to the freedom of speech of all delegates, and threatened the functioning of the Conference. The speaker urged the Government to take concrete and decisive actions to provide and protect freedom of speech, freedom of association and the right to organize. He also urged the Government to cooperate with the ILO to identify and implement the necessary measures to fulfil its obligations under the Convention, including relevant legislative amendments.

The Government representative, referring to the ILO direct contacts mission of 2012, indicated that the terms of reference of this mission had been too vague, open-ended and had not been outcome-oriented. The Government was committed to accepting a direct contacts mission that would be able to speak to all parties, and that would provide solutions based on the correct legal and factual situation. The fact that the terms of reference of the mission in 2012 had not been acceptable should not prevent a mission from taking place in 2013. In this regard, the Government reiterated its commitment to welcoming an ILO direct contacts mission in December 2013, based on terms of reference that were acceptable to all. Concerning restrictions on public meetings, the speaker underlined that all persons and entities were now able to associate, organize and meet in any public place without the need for a permit. Trade unions, political parties, and civil society groups had been regularly holding public meetings, and freely expressing their views in the media. Allegations that minutes had to be kept of meetings and speeches were not true. Turning to issues raised concerning several pieces of legislation, the speaker underlined that the serious offence provisions contained in the Public Order Act only applied to offences such as treason, sedition and religious and racial vilification. Moreover, the definition of the term “terrorism” in the Public Order Act was very similar to legislation in many other countries. Furthermore, the Political Parties Decree did not take away any rights from workers. This Decree sought to maintain political neutrality of public officials, but did not prevent workers who were not trade union officials from becoming members of a political party. The Decree also introduced greater transparency and accountability with respect to political parties. In addition, the draft Constitution, which provided for fundamental civil and political rights as well as socio-economic rights, would also provide the right of any person affected by an executive and administrative decision to seek the review of this decision in a court of law or before an independent tribunal. The draft Constitution also contained provisions that would contribute to the creation of transparent rules of governance. With regard to civil liberties, the Government representative indicated that once a complaint or allegation of a criminal offence was made, this complaint was thoroughly investigated, evidence was collected and an assessment was made whether prosecution would be pursued. He reiterated that such cases had to be proved beyond a reasonable doubt, and reaffirmed that breaches of law would be investigated in accordance with established legal procedures, based on evidence in a court of law.

The Worker members indicated that they were extremely concerned about the trade union situation in Fiji. There had been no concrete response by the Government with regard to the matters outlined in the observations of the Committee of Experts. The Government continued to find new ways to repress the rights of workers, through unilateral executive decrees that were unreviewable by any court. Some of these measures might be perpetuated by the draft Constitution proposed by the Government. This case was serious and urgent as freedom of association was under attack and would be more so when the suspended portions of the POAD would come back into force, thus requiring prior Government authorization to hold union meetings, authorization which had rarely been granted in the past. The Worker members therefore urged the Government to: (i) accept the ILO direct contacts mission as set out in the resolution adopted by the Governing Body in 2012 so that it might take place in time for its report to be discussed at the October 2013 session of the Governing Body; (ii) take the necessary measures to ensure that all charges against Mr Daniel Urai and Mr Nitendra Goundar were dropped without delay; (iii) undertake an ex officio and independent investigation without delay into the alleged acts of assault, harassment and intimidation of Mr Felix Anthony, Mr Mohammed Khalil, Mr Attar Singh, Mr Taniela Tabu and Mr Anand Singh, and initiate an investigation into the complaint lodged by Mr Felix Anthony in 2012; (iv) abrogate or amend the Public Order Act so as to ensure that the right to assembly might be freely exercised; and (v) convene the ERAB subcommittee to establish a tripartite process in order to amend, within six months, the laws and decrees to ensure conformity with the obligations under Conventions Nos 87 and 98. The Worker members requested the ILO Suva Office to make the necessary efforts to facilitate dialogue among employers, workers, and the Government to restore industrial relations practices, particularly in the sugar industry. They also requested that the conclusions in this case be reflected in a special paragraph of the Committee’s report.

The Employer members observed that the facts and elements of this case appeared not to have changed since their examination by the Committee of Experts. They recalled that the conclusions of the Committee should only address the Government’s compliance with the Convention, and not the political situation in the country or the application of other Conventions. An ILO direct contacts mission was important in order to assess the facts on the ground, due to the disparity between the information provided by the Government and the information contained in the report of the Committee of Experts. It was intolerable that a member State could essentially eject an invited direct contacts mission due to a disagreement with its terms of reference, particularly as those corresponded to the standard terms of reference established by the Governing Body. The Employer members therefore urged the Government to accept the ILO direct contacts mission, with the mandate that was originally provided, and not a mandate set or negotiated by the Government. The Employer members agreed that the conclusions in this case should be reflected in a special paragraph of the Committee’s report.

Conclusions

The Committee took note of the statement made by the Government representative and of the discussion that followed.

The Committee observed that the outstanding issues in this case concerned numerous and grave allegations of the violations of the basic civil liberties of trade unionists, including arrest, detention and assaults and restrictions of freedom of expression and of assembly. The Committee further observed the issues relating to a number of discrepancies between the labour legislation, in particular the Public Order (Amendment) Decree (POAD), the Employment Relations Promulgation and the Essential National Industries Decree, and the provisions of the Convention. The Committee further recalled the resolution adopted by the ILO Governing Body in November 2012 calling on the Government to accept a direct contacts mission under previously agreed terms of reference based on conclusions and recommendations of the ILO Committee on Freedom of Association in Case No. 2723.

The Committee noted the Government’s statement that the draft Constitution ensured protections for human and socio-economic rights and the independence of the judiciary, and the Government was intensively preparing for democratic elections in September 2014. It further noted the Government’s commitment to: finalize the review of the labour legislation with the social partners within the framework of the Employment Relations Advisory Board (ERAB) so as to bring it into conformity with ratified international labour Conventions; and ensure that all cases of breaches of Fijians’ fundamental rights would be investigated and independently prosecuted by the independent Office of the Director of Public Prosecutions. The Government representative indicated that they would welcome the visit of the ILO direct contacts mission on mutually acceptable terms of reference in December 2013.

The Committee did not address the right to strike in this case as the employers do not agree that there is a right to strike recognized in Convention No. 87.

The Committee noted with concern the recently adopted Political Parties Decree and certain provisions of the draft Constitution that were alleged to pose risks to the exercise of freedom of association and the basic civil liberties of trade unionists and the officers of employers’ organizations. Recalling the intrinsic link between freedom of association, expression and assembly, on the one hand, and democracy and human rights on the other, the Committee urged the Government to undertake an ex officio independent investigation without further delay into the alleged acts of assault, harassment and intimidation against Felix Anthony, Mohammed Khalil, Attar Singh, Taniela Tabu and Anand Singh and to drop the charges against Daniel Urai and Nitendra Goundar. The Committee urged the Government to amend the POAD so as to ensure that the right to assembly may be freely exercised and expected that the ERAB would complete its review of the laws and decrees so that the necessary amendments would be made by the end of the year in order to put them into full conformity with the Convention.

The Committee recalled with regret that the direct contacts mission was not able to take place as scheduled in September 2012. Encouraged by the Government’s latest indication that it would welcome the return of the direct contacts mission, the Committee expressed the firm hope that the mission, as mandated by the ILO Governing Body, would take place as soon as possible so that it could report back to the Governing Body in October 2013.

The Committee persevered in the hope that the mission would be able to assist the Government and the social partners in finding solutions to all the outstanding matters raised by the Committee of Experts. It requested the Government to provide a detailed report for the Committee of Experts’ examination this year and expressed the firm expectation that next year it would be in a position to observe the substantial and concrete progress made.

The Committee decided to place its conclusions in a special paragraph of the report.

The Government representative indicated that her Government had taken due note of the conclusions, and would, upon consideration of all written and oral statements, examine them in detail, prior to giving its comments in writing.