Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

The Committee notes the comments made by the International Trade Union Confederation (ITUC) dated 4 and 31 August 2011, as well as the comments made by Education International (EI) dated 30 August 2010 and 31 August 2011. The Committee requests the Government to provide its observations thereon. The Committee also notes the comments made by the Fiji Mineworkers Union dated 1 December 2009 and 22 August 2011 concerning matters presently examined by the Committee in the framework of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

The Committee also notes the conclusions and recommendations reached by the Committee on Freedom of Association in the framework of Case No. 2723 concerning, inter alia, acts of assault, harassment, intimidation and arrest of trade unionists, in particular that it draws the Governing Body’s attention to the extreme seriousness and urgency of the issues involved in this case and urges the Government to accept an ILO direct contacts mission to clarify the facts and assist the Government and the social partners in finding appropriate solutions in conformity with freedom of association principles.

Trade union rights and civil liberties. The Committee notes with great concern the ITUC and EI allegations concerning: (i) the arrest of the General Secretary of the National Farmers Union and five other union members on 1 October 2010 due to lack of permit for a public meeting; (ii) threats and questioning of Mr Felix Anthony, National Secretary of the Fiji Trade Union Congress (FTUC) and General Secretary of the Fiji Sugar Workers, on 12 February 2011 by military officers; (iii) repeated physical and verbal assault of the FTUC National Secretary and two other union officials on 18 February 2011 by military officials leading to physical injuries which required medical attention; (iv) threats against the FTUC National Secretary on 1 April 2011 by military officer; (v) on 22 June 2011, physical assault by military officers of Mr Mohammed Khalil, President of the Fiji Sugar and General Workers Union – Ba Branch, in retaliation for the statements made by the FTUC National Secretary at the International Labour Conference; and (vi) detention and police questioning on 3 August 2011 of Mr Daniel Urai, FTUC President and General Secretary of the National Union of Hospitality, Catering and Tourism Industries Employees (NUHCTIE), and Mr Nitin Goundar, NUHCTIE member, subsequent filing of charges for “unlawful assembly” for having met with and advised union members and release on bail on 4 August, with a hearing date set for 31 October 2011. Moreover, the Committee notes from recent allegations submitted by the ITUC in the framework of Case No. 2723 that: (i) on 29 October, Mr Urai was arrested again, upon his return from the Commonwealth Heads of Government Meeting in Perth, Australia, where he spoke out against human and trade union rights violations in Fiji although he has not yet been charged with any offence; and (ii) on 4 November 2011, Mr Felix Anthony, the FTUC National Secretary, was arrested and his home and the union office searched by police. Thereafter, both have been released. The Committee also notes that, in reply to the 2008 and 2009 comments made by the ITUC concerning in particular police disruption of the National Union of Public Workers annual meeting and of the brief detention of its general secretary and his lawyer, the Government indicates that, since the union had never obtained a permit to hold its meeting as required by the Public Emergency Regulations, the police was obliged to order the union members to disperse and asked the general secretary and his lawyer to go to the police station where they were never detained but rather warned of consequences should they fail to obtain a permit in the future.

The Committee expresses its deep concern at 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 reported by the ITUC and EI, in particular the recent recurring acts of physical assault and harassment of the FTUC National Secretary. The Committee recalls that the resolution concerning trade union rights and their relation to civil liberties, adopted by the International Labour Conference at its 54th Session in 1970, lists as first among the liberties essential for the normal exercise of trade union rights the right “to freedom and security of person” since this fundamental right is crucial to the effective exercise of all other liberties, in particular freedom of association. The Committee recalls that, when disorders have occurred involving serious injury, the setting up of an independent judicial inquiry is a particularly appropriate method of fully ascertaining the facts, determining responsibilities, punishing those responsible and preventing the repetition of such actions. Judicial inquiries of this kind should be conducted as promptly and speedily as possible, since otherwise there is a risk of de facto impunity, which can only reinforce a climate of fear and uncertainty highly detrimental to the exercise of trade union rights. The Committee also recalls that the arrest and detention, even for short periods, of trade union leaders and members, without any charges being brought and without a warrant, for exercising legitimate activities in relation with their right of association constitutes a violation of the principles of freedom of association. It further reiterates that searches of trade union offices and of the private homes of trade unionists should only be made when a warrant has been issued by the regular judicial authority (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 28, 29, 31 and 40). The Committee urges the Government to take all necessary measures without delay to ensure the full respect of the above principles. It requests the Government to conduct without delay an independent investigation into the acts of violence alleged above transmitting detailed information with regard to its findings and the action taken as a result. With particular regard to the arrested trade unionists, while the Committee understands that they have been released from custody, it urges the Government to take the necessary measures to ensure that no charges are brought against the FTUC National Secretary and that all charges previously brought against the FTUC President and the NUHCTIE member are immediately dropped, and to provide information on any developments in this regard. Concerning the alleged search by police of the FTUC National Secretary’s home and the union office, the Committee request the Government to provide its observations on this allegation.

With particular regard to the reported act of assault against a union leader in retaliation for statements made by his colleague at the 2011 International Labour Conference, the Committee considers 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 requests the Government to provide its observations in this regard.

Furthermore, the Committee notes the ITUC and EI allegations that: (i) as a result of the monthly renewed Public Emergency Regulations in force since April 2009, it has become difficult for trade unions to convene public activities; all union activities such as seminars, workshops and meetings, require a permit, which in practice is often refused or revoked or granted under strict conditions (including military officers attending the meetings, listening to the deliberations, approving the meeting agenda and even selecting the persons who may speak or attend); in this context, EI signals an attack on the freedom of movement of the President, the Vice-President and the accountant of the Fijian Teachers’ Association (FTA) by preventing them on 9 July 2010 from boarding a plane to attend a union meeting; and (ii) heavy media censorship continues to be experienced in Fiji, and trade union statements have been prohibited from being printed or aired. In view of the above, the Committee wishes to emphasize that the freedom of association Conventions contain no provisions allowing the invocation of a state of emergency to justify exemption from the obligations arising under the Convention, or any suspension of their application, and 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 (see General Survey, op. cit., paragraphs 35, 37, 38 and 41). The Committee requests the Government to provide its observations on these allegations.

Lastly, the Committee notes that the Government has issued the State Services Decree No. 6 of 14 April 2009, the Administration of Justice Decree No. 9 of 16 April 2009 as amended and the Employment Relations Amendment Decree No. 21 of 16 May 2011, which collectively eliminate the access of workers in the public service to the judicial or administrative review of any executive decision concerning the public service (including on terms and conditions of employment of public servants) and other selected sectors; and terminate any pending or ongoing judicial or administrative proceedings in this regard filed by any individual or organization against the State (according to EI, this entailed e.g. the termination of the proceedings against the suspension of the FTA President from the civil service on the grounds of his public comments). The Committee notes that the ITUC and EI claim that these decrees violate due process and have been promulgated without any prior consultation with the relevant trade unions. The Committee requests the Government to provide its observations on these issues.

Legislative issues. Article 2. Right of workers and employers, without distinction whatsoever, to establish organizations. Public service. The Committee notes from the ITUC comments that the Government has issued the Employment Relations Amendment Decree No. 21 dated 16 May 2011, which excludes 15,000 public service workers from the coverage of the Employment Relations Act 2007 (ERA) thus leading to workers in the public service including in public entities losing overnight their fundamental and other trade union rights. The Committee recalls that the standards contained in the Convention apply to all workers “without distinction whatsoever”, and are therefore applicable to public employees; it was indeed considered inequitable to draw any distinction, as regards freedom of association, between wage-earners in private industry and officials in the public service, since persons in either category should be permitted to defend their interests by becoming organized (see General Survey, op. cit., paragraph 48). The Committee therefore urges the Government to take all necessary measures to ensure that public servants enjoy the guarantees enshrined in the Convention.

Prisons and correction services. The Committee had previously requested the Government to amend section 3(2) of the Employment Relations Act No. 36 of 2007 (ERA) so that prison guards enjoy the right to establish and join organizations of their own choosing. In this respect, the Committee notes that the Government states that the disciplined forces including police and prisons and correction services are not covered by the ERA due to the nature of their responsibilities in providing national security in all its facets, and that the prisons and correction services are governed by separate legislation and enjoy similar privileges in regard to terms and conditions of employment except for the right to strike or access to the institutions under the ERA. The Committee also notes the Government’s indication that on 29 November 2006, the Parliament had committed to undertaking a revision of section 3 of the ERA to also include the correctional authorities (including workers in the prisons and correction services), that as of 6 December 2006 the military Government had taken over the realm of running the Government, that the next parliamentary election was scheduled for 2014 and that it would be left to the next parliamentary government to decide on the change. The Committee must once again recall that the only admissible exceptions to the right to organize are those explicitly provided for under Article 9 of the Convention, i.e. the armed forces and the police. All other categories of workers, without distinction whatsoever, should enjoy the right to establish and join organizations of their own choosing. The Committee considers that the functions exercised by prison guards are different from the regular functions of the army and the police and do not justify their exclusion from the right to organize (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 56). The Committee hopes that section 3(2) of the ERA will soon be reviewed to ensure that prison guards enjoy the right to establish and join organizations of their own choosing and requests the Government to indicate the progress made in that regard in its next report.

Right of workers and employers to establish organizations without previous authorization. Previously, the Committee had asked the Government to amend section 122(1)(c) of the ERA, which grants the Registrar the power to determine whether a trade union name is “undesirable” and refuse the organization’s registration until an alteration has been made. In this respect the Committee notes the Government’s statement that: (i) the term “undesirable” can only be determined by the Registrar in consideration of the reservations made by certain organizations like religious, political, ethnic etc. on the name used, which may be offensive or insulting, can incite racial detestation and would contravene the Government’s People Charter for Change, Peace and Progress; and (ii) the Registrar does not have sole discretionary powers in refusing the union’s registration, as the organization may appeal that decision before the Employment Relations Tribunal.

Furthermore, the Committee had previously requested the Government to provide information as to the manner in which the principal objectives of the persons seeking registration were determined and evaluated by the Registrar, who under section 125(1)(a) of the ERA may refuse registration if the principal objectives of the persons seeking registration are not in accordance with those set out in the definition of a trade union. The Committee notes that the Government confines itself to indicating that the Registrar exercises that discretion on the basis of objective criteria and that the aggrieved trade union is at liberty to seek redress through the Employment Relations Tribunal to determine whether the refusal of registration is based on objective criteria. The Committee considers, in this respect, that section 125(1)(a) of the ERA confers upon the authorities wide discretionary powers in deciding whether or not an organization meets all the conditions for registration. In these circumstances, the Committee requests the Government to take measures to amend section 125(1)(a) of the ERA, by ensuring, for instance, that refusals to register an organization under the said section are determined on the basis of objective criteria.

Right of workers and employers to join organizations of their own choosing. In its previous comments, the Committee had requested the Government to amend section 119(2) of the ERA, in order to enable workers exercising more than one occupational activity in different occupations or sectors to join the corresponding trade unions as full members. The Committee notes that, according to the Government, section 119(2) states that “the application for registration must be made to the registrar in the prescribed form and signed by more than six members of the trade union applying for registration provided that those members that signed the prescribed form do not belong to more than one trade union covering the same occupational activity”. The Government explains that this provision only restricts workers from joining two rival trade unions covering the same occupational activity. However, the Committee notes that section 119(2) provides that “an application for registration as a trade union must be made to the Registrar in the prescribed form and signed by more than 6 members of the trade union applying for registration provided that no member shall belong to more than one trade union.” The Committee understands that the restriction applies in case of any union regardless of the occupational activity it covers, and considers that demanding that workers belong to no more than one union in order to sign an application for registration may unduly infringe upon the right of workers to join organizations of their choosing. Accordingly, the Committee once again requests the Government to take the necessary measures to amend section 119(2) of the ERA so as to allow workers who engage in more than one occupational activity in different occupations or sectors to join corresponding trade unions.

Article 3. Right of employers’ and workers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration and activities. Right to elect their representatives in full freedom. Previously, the Committee had requested the Government to amend section 127 of the ERA, which provides that officers of a registered trade union must have been engaged or occupied for a period of not less than six months in an industry, trade or occupation with which the union is directly concerned; and 127(d) of the ERA, which forbids non citizens of the Fiji Islands to be trade union officers. The Committee notes that the Government stresses that section 127(2) allows the full-time positions of General Secretary and Treasurer to be filled with persons who have not been engaged in the industry, trade or occupation concerned; and that it would not be practicable for unions to engage full-time professionals and non-citizens as officers, due to their limited funds (77 per cent have less than 500 members) and the need for officers to appreciate diverse traditions, cultures and laws. Observing that it should be left to the unions themselves to decide on the practicalities of recruiting professionals or non citizens, 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. The Committee expects that section 127 of the ERA will soon be amended so as to allow for a certain proportion of the officers to come from outside the particular profession, and to allow non-citizens to run for trade union office at least after a reasonable period of residence in the country.

Right to draw up constitutions and rules. In its previous comments, the Committee had requested the Government to amend section 184 of the ERA, which entitled the courts to decide the sanctions against trade union members for refusal to participate in a strike, so as to grant this power to the trade unions themselves. The Committee notes the Government’s view that, while sanctions against union members for refusal to participate in a lawful strike rests with the unions, sanctions against union members for refusal to participate in an unlawful strike would be unethical and the Government cannot encourage the participation in illegal activities. The Committee notes the Government’s view but considers that the expulsion of members, regardless of the invoked reasons, should be the prerogative of the trade unions. The Committee therefore expects that section 184 of the ERA will be amended to ensure that the issue of the expulsion from the trade union of members for refusal to participate in a strike is left to trade union constitutions and rules.

Right of workers’ and employers’ organizations to organize their administration. The Committee had previously requested the Government to amend section 128 of the ERA, which provides that the account books and other related documents must be open to inspection during normal business hours by the Registrar, and that the Registrar may request detailed and certified accounts from the treasurer and also provides for fines or imprisonment in case a person obstructs or impedes the Registrar in carrying out an inspection. The Committee takes note of the Government’s statement that trade unions are accountable to their members to avoid abuse of power leading to misuse of funds; that there is an increase in complaints to the Ministry of Labour from union members of fraudulent and corrupt practices within trade unions including the non-payment of union pensions and redundancy payments due to unlawful use of the money by executives; and that the matter will nonetheless be referred to the Employment Relations Advisory Board for consideration of the proposed amendment to set a certain percentage of union members filing complaints to give rise to an inspection of that union’s accounts. In these circumstances, the Committee expresses the firm hope that section 128 of the ERA will soon be amended so as to ensure that the power of the Registrar to examine trade union accounts is explicitly limited to cases where a complaint from a certain percentage of members needs to be investigated, and requests the Government to indicate the results of the Employment Relations Advisory Board’s deliberations.

Strike ballot. The Committee recalls that it had previously requested the Government to amend section 175(3)(b) of the ERA, which provides that each issue on which a strike mandate is sought must be supported in a strike ballot by more than 50 per cent of all members entitled to vote. The Committee notes the Government’s indication that in a strike mandate, the casting of votes is not conducted during a union meeting where the required quorum and majority are fixed in the union’s constitution but rather at each individual workplace; and that, since union members are advised in advance of the dates, time and place of the ballot, they do avail themselves of those dates to cast their votes so that the percentages of the votes cast are mostly within the 90 per cent to 100 per cent bracket. In these circumstances, the Committee must once again recall that although a ballot requirement does not, in principle, raise problems of compatibility with the Convention, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult, or even impossible in practice. If a member State deems it appropriate to establish in its legislation provisions which require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast and that the required quorum and majority are fixed at a reasonable level (see General Survey, op. cit., paragraph 170). The Committee requests the Government to take the necessary measures to amend section 175(3)(b) of the ERA so as to ensure that, regardless as to whether the strike ballot is conducted during a union meeting or at each individual workplace, only a simple majority of the votes cast in a secret ballot is required.

Declaration of a strike as unlawful. Previously, the Committee had requested the Government to amend section 180 of the ERA, which allowed the Government to declare the illegality of a strike, in order to grant that power to an independent body, which has the confidence of the parties involved. It notes from the Government’s report that the Minister declares the strike unlawful and states in the Order the legal provisions that have been breached, which gives the union the opportunity to assess the validity of the Order and seek redress by way of an appeal under section 241, and that it is the court that has the mandatory power to order discontinuance of the strike and impose penalties in case of disregard. The Committee notes that, in the Government’s view, this arrangement provides for more means of redress than if the court both declared the strike unlawful and ordered its discontinuance. The Committee considers that the responsibility for declaring a strike illegal should not lie with the Government and that the existence of a right to appeal to the courts does not in itself constitute a sufficient guarantee. The Committee once again requests the Government to take the necessary measures to amend section 180 of the ERA, so that responsibility for declaring a strike illegal lies with an independent body which has the confidence of the parties involved.

Compulsory arbitration. The Committee had previously requested the Government to amend sections 169 and 170 of the ERA, which enable each party to a dispute to refer it to the Permanent Secretary, who must refer it to mediation, and sections 181(c) and 191(1)(c) of the ERA, which enable the Minister to apply to the Court for an injunction to discontinue a strike if satisfied that the strike is not in the public interest or will jeopardize or is likely to jeopardize, inter alia, the economy. The Committee notes that the Government indicates that, prior to asking for third-party intervention, the parties to the dispute have already exhausted the means of trying to resolve the matter internally; that unresolved disputes escalate confrontational attitudes, lead to illegal strikes and lockouts and are counterproductive for the entire country; and that when requesting discontinuance of the strike the Minister must show proof to the court that its continuance is likely to jeopardize the economy or public safety. In this regard, the Committee observes that strikes are by nature disruptive and costly. It recalls once again that a prohibition of strikes may result in practice from the cumulative effect of the provisions relating to collective labour disputes under which, at the request of one of the parties or at the discretion of the public authorities, disputes must be referred to a compulsory arbitration procedure leading to a final award which is binding on the parties concerned. These systems make it possible to prohibit virtually all strikes or to end them quickly: such a prohibition seriously limits the means available to trade unions to further and defend the interests of their members, as well as their right to organize their activities and to formulate their programmes, and is not compatible with Article 3 of the Convention (see General Survey, op. cit., paragraph 153). Accordingly, the Committee once again requests the Government to amend sections 169, 170, 181(c) and 191(1)(c) of the ERA so as to ensure that compulsory arbitration can only be imposed at the request of both parties to a dispute, or in essential services in the strict sense of the term or for public servants exercising authority in the name of the State.

Penalties for staging an unlawful strike. The Committee had previously requested the Government to amend section 256(a) of the ERA, which, when read with section 250 of the ERA, provides for a possible penalty of imprisonment in case of the staging of an unlawful strike. The Committee notes the Government’s statement that the imposition of a fine or term of imprisonment is targeted at offences of individual employers, and that the offence of workers having participated in an illegal strike under section 250(5) has been included in section 256(a) only with regard to the fine (max. US$10,000 for individuals and US$50,000 for unions). While noting the intention behind section 256(a) as described by the Government, the Committee considers that this provision, as presently drafted, allows for penal sanctions to be applied to workers having staged an unlawful but peaceful strike. The Committee has continually emphasized that no penal sanctions should be imposed against a worker for having carried out a peaceful strike, and therefore that measures of imprisonment should not be imposed on any account. Such sanctions could be envisaged only where, during a strike, violence against persons or property, or other serious infringements of penal law have been committed, and can be imposed pursuant to legislation punishing such acts, such as the Penal Code (for example, in the case of failure to assist a person in danger or damage caused to property). The Committee therefore once again requests the Government to take the necessary measures to amend section 256(a) read in conjunction with section 250(5) of the ERA.

New legislation. The Committee notes the promulgation of the Essential National Industries (Employment) Decree on 29 July 2011 (ENI) as well as the recent amendment to the Public Service Act. It notes that, in the view of the ITUC and EI, the new legislation violates the Convention in numerous ways and their implementation will virtually destroy the independent trade union movement. Recalling that, in the framework of Case No. 2723, the Committee on Freedom of Association has concluded that this Decree gives rise to a number of violations of Conventions Nos 87 and 98, has deeply regretted the issuance on 8 September 2011 of its implementing regulations and has urged the Government to amend its provisions without delay so as to bring it into conformity with Conventions Nos 87 and 98. The Committee considers that the following provisions are not in conformity with the Convention:

• – Section 6 of the ENI, under which 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 considers that legislation which accords the administrative authority 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 Article 2.
• – Sections 10 to 12 of the ENI, under which a union must apply to the Prime Minister in writing to be (re-)elected as representative of the bargaining unit, the Prime Minister determines the composition and scope of a bargaining unit for the purposes of conducting elections for its representative, and the Registrar conducts and supervises elections in the bargaining unit. The Committee considers that legislative provisions conferring on the competent authority a genuinely discretionary power to grant or reject a registration request are tantamount to a requirement for previous authorization which is not compatible with Article 2. Moreover, the autonomy of workers’ organizations can be effectively guaranteed only if their members have the right to elect their representatives in full freedom; the public authorities should therefore refrain from any interference as regards the holding of trade union elections which might restrict the exercise of this right (see General Survey, op. cit., paragraphs 74 and 112).
• – Section 14 of the ENI, according to which the figure 50 per cent plus one is the percentage necessary for a union to be registered. The Committee recalls that, although a minimum membership requirement is not in itself incompatible with the Convention, the number should be fixed in a reasonable manner so that the establishment of organizations is not hindered; it may vary according to the particular conditions in which a restriction is imposed. The Committee underlines that a minimum proportion, which in practice precludes the establishment of more than one trade union in each occupation or enterprise, would restrict the right of workers to establish organizations of their own choosing (see General Survey, op. cit., paragraphs 81 and 82). The Committee considers that a provision imposing a minimum membership of 50 per cent would not be in line with Article 2.
• – Section 7 of the ENI provides that union officials must, subject to severe civil and penal sanctions, be employees of the designated corporations they represent. The Committee recalls that provisions of this type infringe the organization’s right to elect representatives in full freedom as enshrined in Article 3 by preventing qualified persons from carrying out union duties or by depriving unions of the benefit of the experience of certain officers (see General Survey, op. cit., paragraph 117).
• – Section 27 of the ENI, which provides that: (i) strikes are prohibited in essential national industries in case of disputes to obtain registration, to influence the outcome of bargaining, in the course of negotiations or over the interpretation or application of a collective agreement; (ii) 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; (iii) the Prime Minister may declare any strike or lockout in any essential national industry unlawful; and (iv) non-compliance with the above provisions is subject to severe civil and penal sanctions including imprisonment of up to ten years. The Committee further notes that, according to the implementing Regulations issued under the ENI, the following sectors are currently considered as “essential national industries”: financial industry (including customs), telecommunications industry, civil aviation industry, and public utilities industry (including electricity and water). The Committee recalls that the right to strike is one of the essential means available to workers and their organizations for the promotion and protection of their economic and social interests, and that it 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, electricity services, water supply services and the telephone service may be deemed to be essential services, 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, the Committee considers that radio and television, banking and transport generally do not constitute essential services in the strict sense of the term where the right to strike could be restricted or prohibited. It 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, sanctions for strike action should be possible only where the strike prohibitions are themselves in conformity with the principles of freedom of association. As regards penal sanctions for staging a peaceful strike, the Committee refers to its comments under the ERA.
• – Section 26 of the ENI, under which 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 US$2.78 million which remained unresolved may be referred to the Prime Minister for a final and binding determination. The Committee considers that all disputes relating to a question of right (e.g. the termination of a worker), regardless of the amount of money involved, should be fully appealable to the courts; in the first instance, they could be arbitrated. In this regard, the Committee stresses that arbitration imposed by the authorities at the request of one party could effectively undermine the right of workers to call a strike, and that compulsory arbitration is acceptable if it is at the request of both parties involved in a dispute, in the case of disputes in the public service involving public servants exercising authority in the name of the state or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population.
• – Section 24(4) of the Essential National Industries Decree and the alleged amendment in August 2011 of the Public Service Act 1999, which prohibit automatic dues deduction for workers in “essential national industries” and for all public service workers. The Committee underlines 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.

The Committee urges the Government to take the necessary measures to amend the provisions of the Essential National Industries (Employment) Decree 2011 without delay, in full consultation with the social partners, so as to bring it into conformity with the Convention. The Committee also requests the Government to take the necessary measures to ensure that the check-off facility continues to be granted in the abovementioned sectors.

Recalling the recommendation made by the Committee on Freedom of Association in the framework of Case No. 2723 that the Government accept an ILO direct contacts mission to clarify the facts and assist the Government and the social partners in finding appropriate solutions in conformity with freedom of association principles, the Committee hopes that such direct contacts mission will be able to take place in the near future with a view to finding solutions to the issues raised.

[The Government is asked to supply full particulars to the Conference at its 101st Session and to reply in details to the present comments in 2012.]