Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

The Committee notes the comments submitted on 21 August 2013 by the International Trade Union Confederation (ITUC) concerning issues already being raised by the Committee.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 102nd Session, June 2013)

The Committee takes due note of the debate which took place within the Conference Committee in June 2013 and the ensuing conclusions which were placed in a special paragraph of its report.

The Committee notes the recommendations made by the Committee on Freedom of Association (CFA) in the framework of Case No. 2723, as well as the related decisions adopted by the ILO Governing Body. The Committee also observes that a complaint under article 26 of the ILO Constitution alleging the non-observance of the Convention by Fiji, submitted by a number of Workers’ delegates at the Conference, was declared receivable and remains pending before the Governing Body. Noting with deep regret that the ILO direct contacts mission requested by the Governing Body and the ILO supervisory machinery has still not been able to carry out its mandate in the country, the Committee firmly expects that the mission will be able to take place prior to the March 2014 session of the Governing Body, with a view to assisting the Government and the social partners in finding appropriate solutions to all the outstanding matters raised by the ILO supervisory bodies.

Trade union rights and civil liberties. Concerning the allegations of physical attacks on several trade unionists, the Committee, while noting the information provided by the Government that neither the Police Department nor the Office of the Director of Public Prosecutions has received to date any complaint for the alleged physical assaults, requests the Government to conduct, regardless as to whether the victims have lodged a complaint, an independent investigation without delay into the alleged acts of assault, harassment and intimidation against Mr Felix Anthony, National Secretary of the Fiji Trades Union Congress (FTUC) and General Secretary of the Fiji Sugar and General Workers Union (FSGWU); Mr Mohammed Khalil, President of the FSGWU – Ba Branch; Mr Attar Singh, General Secretary of the Fiji Islands Council of Trade Unions; Mr Taniela Tabu, General Secretary of the Viti National Union of Taukei Workers; and Mr Anand Singh, lawyer; and to transmit detailed information with regard to the outcome of such inquiry and any measures taken as a result.

With respect to the alleged arbitrary arrest and detention of trade unionists (Mr Anthony, Mr Daniel Urai and Mr Nitendra Goundar), while having previously noted that they had been released from custody, the Committee notes with concern the information provided by the ITUC that the two cases with criminal charges of unlawful assembly brought against Mr Urai (President of the FTUC) and Mr Goundar on the grounds of failure to observe the terms of the Public Emergency Regulations (PER) are still pending in court. Considering that public authorities should not use legitimate trade union activities as a pretext for arbitrary arrest or detention or criminal charges, the Committee urges the Government to take the necessary measures to ensure that all charges brought against them in the framework of their trade union activities are immediately dropped.

Furthermore, in regard to the restrictions of freedom of assembly and of expression, the Committee notes the Government’s indication that, following the lifting of the PER and the suspension of the requirement for prior approval by the authorities to hold meetings (section 8 of the 2012 Public Order (Amendment) Decree (POAD)), trade unions under the Public Order Act are holding meetings in public places without the need to obtain a permit, with the exception of public roads, parks, gardens or sports arenas which still require authorization for logistical purposes. The Committee also notes the ITUC’s concern that section 8 of the POAD, subsection 5 of which could potentially make it difficult for trade unions to hold public meetings, is likely to re-enter into force given the completion of the constitutional revision process. Recalling the interdependence between trade union rights and civil liberties, including freedom of assembly, the Committee once again urges the Government to bring section 8 of the POAD into line with its stated commitments by fully repealing or amending this provision so as to ensure that the right to assembly is freely exercised. With regard to Mr Rajeshwar Singh, FTUC Assistant National Secretary, who had been suspended for having addressed trade unions abroad, the Committee again requests the Government to reinstate him in his position representing workers’ interests on the Air Terminal Services Board.

Legislative issues. The Committee recalls that the following provisions of the Essential National Industries Decree No. 35 of 2011 (ENID) are not in line with the Convention: section 6 (cancellation of all existing trade union registrations in “essential national industries”); section 7 (union officials must be employees of the company); sections 10–12 (unions must apply to the Prime Minister to qualify to be elected as bargaining unit representative; determination by the Prime Minister of composition and scope of bargaining unit for election purposes; conduct and supervision of elections by Registrar); section 14 (50 per cent plus one requirement for a union to be registered); section 24(4) (withdrawal of check-off facilities for workers in “essential national industries”); section 26 (lack of judicial recourse for rights disputes; compulsory arbitration by the Government of disputes beyond a certain financial threshold); and section 27 (serious restrictions of the right to strike).

The Committee notes with concern the Government’s statement that the role of the tripartite Employment Relations Advisory Board (ERAB), which had agreed earlier to delete most of the provisions of the ENID identified by itself as offending, is only to advise the Minister of Labour, whereas the final decision on the ENID will subsequently be made at the political level by Cabinet. The Committee further notes with concern that, in the view of the ITUC, the Government is considering to expand the reach of the ENID to municipal councils and firefighters, and that there is a threat to extend it to the sugar sector if the workers make demands. Noting that, according to the Constitution of Fiji passed on 6 September 2013, most legislation (including the ENID) will remain in force but may be amended by Parliament, the Committee urges the Government to take the necessary measures to amend the provisions of the ENID in the very near future, in full consultation with the social partners and in line with the measures agreed by the tripartite ERAB subcommittee, so as to bring it into conformity with the Convention. The Committee also requests the Government once again to make the necessary arrangements to ensure that the check-off facility is fully reactivated in the public sector and in the “essential national industries”.

With respect to the Employment Relations Promulgation of 2007 (ERP), the Committee recalls once again the necessity to amend the following provisions of the ERP in order to bring them into conformity with the Convention: section 3(2) (denial of right to organize to prison guards); section 125(1)(a) (excessively wide discretionary power of the Registrar in deciding whether or not a union meets the conditions for registration under the ERP); section 119(2) (imposition of one union per person policy to workers exercising more than one occupational activity); section 127 (obligation of union officials to be employees of the relevant industry, trade or occupation for a period of not less than six months and prohibition of non-citizens to be trade union officers); section 184 (interference in union by-laws); section 128 (excessive power of the Registrar to inspect union accounts at any time); section 175(3)(b) (excessively high strike ballot requirement); section 180 (responsibility for declaring a strike illegal does not lie with an independent body); sections 169, 170, 181(c) and 191(1)(c) (compulsory arbitration); and sections 250 and 256(a) (penalty of imprisonment in case of staging an unlawful strike).

The Committee notes the Government’s indication that three ERAB subcommittee meetings were held in the first half of 2013, that the Labour Minister will take the final proposals to Cabinet after legal vetting by the Solicitor General against the Constitution before the end of 2013, and that the amendment process has been a priority and includes compliance matters raised by the ILO. The Committee firmly expects that due account is being taken of its comments throughout the amendment process, with a view to bringing the ERP into full conformity with the Convention in the very near future. The Committee requests the Government to provide information on this issue in its next report, including on the recommendations made by the ERAB subcommittee and any responses to those recommendations from Cabinet or other government officials.

As to the decrees relating to the public sector eliminating the access of public service workers to judicial or administrative review, the Committee notes from the information and documentation supplied by the Government that public servants can appeal administrative decisions affecting them individually through the internal grievance procedures available for the public service. While noting that, according to article 164 of the Constitution, the State Services Decree 2009 and the Administration of Justice Decree 2009 are repealed, the Committee notes with regret that sections 23 to 23D of the latter decree, which precisely eliminate the remedy of judicial review for public servants, shall continue in force (article 174). The Committee further notes from the High Court judgments supplied by the Government at the request of the Committee that: (i) as regards jurisdiction, it was held on 23 March 2012 that section 23B of the Administration of Justice Decree did not preclude public servants from bringing to court a government decision to terminate their employment (State v. Permanent Secretary for Works, Transport and Public Utilities ex parte Rusiate Tubunaruarua & Ors HBJ 01 of 2012); but (ii) the case was dismissed on 22 April 2013 because alternative remedies (for example, internal grievance procedure) had not been used, and because the employment was governed by the Terms and Conditions of Employment for Government Wage Earners with remedies pertaining to private law, which meant that, although the appointing authority was a public body, the case was not susceptible to judicial review under public law (HBJ 02 of 2012). The Committee requests the Government to take all necessary measures to ensure that public servants have genuine and effective recourse to judicial review of any decisions or actions of government entities affecting their conditions of employment, especially as regards the exercise of their rights under the Convention, and to provide relevant statistics and information on the mechanisms available to address collective grievances. Moreover, the Committee once again requests the Government to indicate the results of the review by the ERAB subcommittee of all government decrees relating to the public service in terms of their conformity with the ILO fundamental Conventions.

Lastly, the Committee notes with deep concern the new ITUC allegations, in particular that: (i) the rights relating to freedom of association enshrined in the new Constitution (articles 19 and 20) are subject to broad exceptions which could be invoked to undermine the underlying principles and justify the existing harmful decrees; (ii) under the Political Parties Decree, persons holding an office in any workers’ or employers’ organization are banned from membership or office in any political party and any political activity, including merely expressing support; and (iii) FSGWU members have been threatened and intimidated by the military and the management of the government-owned Fiji Sugar Corporation (FSC) before, during and after the holding of the strike ballot in July 2013. The Committee requests the Government to provide its observations on these serious allegations.

[The Government is asked to reply in detail to the present comments in 2014.]