Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Fiji (Ratification: 1974)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) dated 31 July and 31 August 2012. The Committee requests the Government to provide its observations thereon. It also notes the comments made by the International Organisation of Employers (IOE) on the right to strike in a communication dated 29 August 2012 which are dealt with in the General Report of the Committee.

The Committee further notes the latest conclusions and recommendations reached by the Committee on Freedom of Association (CFA) in the framework of Case No. 2723, in particular, that it expresses its grave concern that the ILO Direct Contacts Mission that visited Fiji in September 2012 was not allowed to continue its work, and that it draws the Governing Body’s attention to the extreme seriousness and urgency of the issues involved in this case. The Committee deeply regrets this loss of opportunity to clarify the facts and assist the Government and the social partners in finding appropriate solutions in conformity with freedom of association and collective bargaining principles. The Committee hopes that the Direct Contacts Mission may return to the country in the near future within the framework of the mandate bestowed upon it.

Article 1 of the Convention. Protection against acts of anti-union discrimination. With reference to the dispute in the Vatukoula Mining Company (concerning the refusal to recognize a union and the dismissal of striking workers 15 years ago), the Committee previously took note of the Government’s statement that various measures had been taken with regard to the redundant miners of the company, including the striking workers of the Fiji Mine Workers Union (FMWU), in particular, important amounts of money granted for the purpose of rehabilitation or social assistance, re-employment by the new owner, etc. The Committee had also noted with concern that, according to the FMWU, the above information provided by the Government was simply not true, and had requested the Government to engage in exploratory talks with FMWU representatives with a view to reaching a mutually satisfactory settlement. The Committee notes the Government’s indication that, in 2007, it allocated $600,000 towards the rehabilitation of the redundant miners in the Vatukoula Gold Mine which also included members of the FMWU. The two priority areas for assistance were tertiary education for miners’ children and small and micro-enterprise development for the livelihood of the miners’ families. According to the Government, the Vatukoula Gold Mines Deed has been signed on 7 December 2009 by the Government and the company, which will see the setting up of the Social Assistance Trust Fund which will benefit around 800 people including the striking workers of the FMWU; the establishment of the Fund would mean that the company would contribute approximately $6 million over the next five years, i.e. $1.5 million three months from the initial set-up of this Trust Fund. The Government states that it is fully committed to resolving the long pending grievances of the striking workers that were members of the FMWU. In addition, the first payment from the $6 million Vatukoula Trust Fund has begun in April 2012, and the payout to mine workers made redundant in 2006 was completed. The Vatukoula Trust Fund Committee screened about 600 applicants and the Government is awaiting the final list of recipients. More than 200 recipients are residing in Vatukoula while the rest are now scattered in other parts of the country. The Committee notes however that, according to the submission of the FMWU received on 19 September 2012, there has been apparently no improvement in the situation. The Committee urges the Government to engage with the FMWU representatives with a view to implementing, without any further delay, a mutually satisfactory settlement for assistance to help the remaining workers re-establish themselves, in particular, by ensuring that they are adequately compensated via the Vatukoula Trust Fund in the very near future. It trusts that, after 22 years, this long-standing dispute which has caused great hardship to the dismissed workers will finally and equitably be resolved.

Article 4. Promotion of collective bargaining. Essential National Industries Decree No. 35 of 2011. The Committee notes that, in the view of the ITUC, the Decree continues to negatively affect trade unions in the covered sectors. Observing that, in the framework of Case No. 2723, the CFA has recalled 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, the Committee considers that the following provisions are not in conformity with the Convention:

• – Bargaining unit. According to section 2, “bargaining unit” means a group of at least 75 workers employed by the same employer who perform similar types of work. The Committee notes that, according to the ITUC, this is one of the provisions that have devastated trade unions in practice in the sectors covered by the decree. It has had the effect that several unions have not been able to register bargaining units in certain enterprises where they were represented due to the fact that, in many cases, there are fewer than 75 workers in a job classification. The Committee notes the Government’s indication that the concept of “bargaining unit” is found in other countries’ laws and does not “replace trade unions” as has been claimed, since the two are quite different concepts; and that trade unions will continue to exist and can represent workers within a bargaining unit in a designated corporation in accordance with the Decree. In this regard, the Committee notes, however, with concern that the threshold to form bargaining units under the Decree has, in practice, precluded many workers from exercising their collective bargaining rights. The Committee urges the Government to take the necessary measures without delay to amend the threshold so as to ensure that the application of this provision does not deny the right to bargain collectively to a considerable number of workers in a given enterprise, especially workers working in small enterprises, and to avoid that the right of workers to be represented by a union is thus rendered purely theoretical.
• – Elected representatives. The Committee notes that Part 3 in conjunction with section 2 seek to establish the role of representatives – union or not – as collective bargaining agents. The Committee understands that the term “representative” may include a union delegate or an elected workers’ representative. In the absence of any information provided by the Government in this regard, the Committee once again recalls that, where there exists in the same undertaking both trade union representatives and elected representatives, appropriate measures are to be taken to ensure that the existence of elected representatives is not used to undermine the position of the trade unions concerned. The Committee also recalls that direct negotiation between the undertaking and its employees, bypassing representative organizations where these exist, is detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted. The Committee once again urges the Government to take the necessary measures without delay to ensure that the application of the legislation will be in full conformity with the above principles.
• – Annulment of collective agreements. 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 emphasizes that legislation which annuls freely negotiated collective agreements in force and requires their renegotiation is contrary to the principle of free and voluntary collective bargaining enshrined in the Convention. In addition, the Committee observes that the Government has provided no clear and imperative connection between any need for economic stabilization in a specific context and the existing collective agreements, and that the legislation has effect on whole sectors without any reference to specific clauses that cannot be implemented in the framework of an acute national crisis. Considering that the abrogation of collective agreements, as well as the unilateral imposition of conditions of employment failing agreement, is contrary to the obligation to encourage and promote collective bargaining, and that section 8 constitutes a direct violation of Article 4 of the Convention, the Committee urges the Government to abrogate this provision.
• – Renegotiation of collective agreements in case of financial distress. The Committee notes that section 23 provides that employers may renegotiate all their collective agreements if they are considered to be in financial distress; if bargaining fails to result in a new collective agreement, the employer may submit its proposals for a new or amended collective agreement to the Prime Minister for review, and the Prime Minister shall make a decision on the new terms and conditions of the new or amended collective agreement. With reference to the principles stated above in the context of the annulment and renegotiation of collective agreements, the Committee considers that section 23 amounts to compulsory arbitration by public authorities at the request of one of the parties. Considering that section 23 violates the principle of free and voluntary collective bargaining enshrined in the Convention, the Committee therefore requests the Government to abrogate this provision.
• – 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 notes with deep concern that, according to the ITUC, the Essential National Industries Decree has had in practice disastrous effects on the trade unions representing industries coming under its scope and even beyond: for example, several unions have been unable to register bargaining units due to the high threshold of 75 workers employed by the same employer who perform similar types of work, stipulated in section 2 of the Decree; almost no collective agreements have been concluded since the adoption of the Decree; efforts of unions to initiate collective bargaining with the employer and conduct good-faith negotiations usually remained to no avail; instead, unilateral changes to terms and conditions of employment have been imposed or threatened to be imposed by the employer; the check-off facility has been fully or partially withdrawn; union dues have sometimes been remitted directly to the bargaining unit rather than to the trade union concerned; and the delay in collective bargaining has entailed a generalized haemorrhage in union membership and thus a serious loss of resources to defend workers’ interests. The Committee had previously urged the Government to take the necessary measures to amend the provisions of the Decree without delay, in full consultation with the social partners, so as to bring it into conformity with the Convention. The Committee welcomes that, according to the report of the Direct Contacts Mission, 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 Employment Relations Advisory Board (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 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 Public Service Commission and the Attorney-General, and that the work of the ERAB and its subcommittee was anticipated to be concluded by October 2012. The Committee further welcomes that, according to the conclusions reached by the CFA in the framework of Case No. 2723, the ERAB subcommittee agreed, as stated by the complainant, to delete most of the provisions of the Essential National Industries Decree that were considered offending. The Committee trusts that the measures agreed by the tripartite ERAB subcommittee will be actively pursued and given effect in the near future, so as to bring the legislation into conformity with the Convention, and requests the Government to provide information on any progress made in this regard.

Counter-Inflation (Remuneration) Act. Previously, the Committee noted the Government’s indication that, in the framework of the review of outdated laws, the Government was exploring, in light of the recently adopted commercial legislation, the need of retaining the Counter-Inflation (Remuneration) Act. The Committee had requested the Government to indicate the measures taken or contemplated so as to amend section 10 of the Act, which envisages, if need be, the restriction or regulation of remuneration of any kind by order of the Prices and Incomes Boards, and stipulates that any agreement or arrangement which does not respect these limitations will be illegal and deemed to be an offence. In the absence of any information provided by the Government, the Committee considers that this provision allows for excessive restrictions to collective bargaining. The Committee hopes that, in the framework of the above reform, the Government will take all necessary measures to ensure that section 10 of the Counter-Inflation (Remuneration) Act is abrogated. The Committee requests the Government to provide information on any developments in this respect.