Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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

The Committee notes the observations provided by the International Trade Union Confederation (ITUC) in a communication received on 1 September 2015. It also notes the observations from the International Organisation of Employers (IOE) received on 1 September 2015, which are of a general nature.

Complaint made under article 26 of the Constitution of the ILO for non-observance of the Convention. The Committee recalls 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 2013 International Labour Conference, was declared receivable and remains pending before the Governing Body. The Committee takes note of the Tripartite Agreement signed on 25 March 2015 by the Government, the Fiji Trades Union Congress (FTUC) and the Fiji Commerce and Employers’ Federation (FCEF) acknowledging the review of labour laws including the Employment Relations Promulgation (ERP) to be conducted under the Employment Relations Advisory Board (ERAB) to ensure compliance with ILO core Conventions. The Committee notes that the Governing Body regretted the continuing failure to submit a joint implementation report to the Governing Body in accordance with the Tripartite Agreement signed by the Government of the Republic of Fiji, the FTUC and the FCEF on 25 March 2015, and as requested by the Governing Body at its 324th Session (June 2015), and called on the Government of Fiji to accept a tripartite mission to review the ongoing obstacles to the submission of a joint implementation report and consider all matters pending in the article 26 complaint. The Committee understands that the tripartite mission will take place in the near future and trusts that it will be able to assist the Government and the social partners in finding solutions to the outstanding matters concerning the application of the Convention.

Trade union rights and civil liberties. The Committee previously noted with interest that the new Police Commissioner had reactivated the investigation into the assault of trade union leader Felix Anthony which had been the subject of its previous comments. The Committee trusted that Mr Anthony would cooperate with the investigation and requested the Government to provide information on any further developments in this matter. The Committee takes due note of the Government’s indication that the relevant investigation file has been compiled by the Fijian Police and forwarded to the Office of the Director of Prosecutions on 25 February 2015 for advice on the next course of action, and that Mr Anthony has failed to provide a formal statement indicating his willingness to pursue the case and to submit the outstanding medical reports.

The Committee further recalls that its previous comments also referred to the cases of Mr Daniel Urai (President of the FTUC) and Mr Goundar who were the subject of criminal charges. The Committee trusted that all charges against Mr Urai related to his exercise of trade union activity would be immediately dropped, and requested the Government to indicate whether there were any charges still pending against Mr Goundar. The Committee understands and notes with satisfaction that the sedition charges brought against Mr Urai and another person four years ago, have been dropped by the Suva Magistrate Court, after the filing of a nolle prosequi by the Director of Public Prosecutions, and that the dropping of charges entails the passport return and the lifting of a travel ban. Noting the Government’s indication that Mr Urai had a second case pending in court on charges of unlawful assembly on the grounds of failure to observe the terms of the Public Emergency Regulations (PER), the Committee expresses the strong hope that the remaining charges against Mr Urai related to his exercise of trade union activity would equally be dropped without delay, and requests the Government once again to indicate whether there were any charges still pending against Mr Goundar.

Legislative issues. Employment Relations (Amendment) Act 2015. The Committee notes that, according to the Government’s report as well as the implementation report submitted by the Government of Fiji on 15 October 2015: (i) the ERAB held three meetings in May 2015, at which it endorsed the repeal of the Essential National Industries (Employment) Decree 2011 (ENID) and discussed the draft Employment Relations (Amendment) Bill prepared by the Government; (ii) after the ERAB recorded the matters of disagreement, the Government proposed that it refer the draft Bill to the Minister; and (iii) the Bill was tabled in Parliament on 22 May 2015; the Parliamentary Standing Committee heard submissions from all stakeholders; and the Bill was approved by Parliament and enacted on 14 July 2015 as Employment Relations (Amendment) Act No. 10 of 2015.

The Committee notes with satisfaction that the following issues raised previously have been resolved through the adoption of the Employment Relations (Amendment) Act 2015: possibility for workers exercising more than one occupational activity to belong to more than one union in the same industry, trade or occupation as long as it does not concern the same employer (section 119(2)) as amended); power of the Registrar to inspect union accounts during normal business hours limited to the case of requisition of 10 per cent of the voting membership (section 128(2)); and the removal of the penalty of imprisonment in case of staging an unlawful but peaceful strike (sections 250 and 256(a)). However, recalling that penal sanctions should not be imposed for participation in peaceful strikes, the Committee requests that sections 250 and 256(a) be amended to eliminate the penalty of a fine for such form of participation.

The Committee further notes that section 191BW of the ERP as amended in 2015 provides that the ENID is repealed except to the extent saved by new Part 19 of the ERP. While noting with interest the repeal of the ENID, the Committee notes with deep concern that the amendments to the ERP carry on a number of elements of the ENID, which had already been the subject of concern to the Committee, and which are further addressed below.

Article 2 of the Convention. Right of workers to establish and join organizations of their own choosing. The Committee notes that new Part 19 of the ERP sets out the manner of worker representation in all designated essential services and industries. Parts 1–12, 14–16, 18, 21 and 22 of the ERP shall only apply to essential services and industries to the extent that there is no inconsistency with Part 19. The Committee notes with concern that, pursuant to section 185 of the ERP as amended, the list of industries considered as essential services now includes the services listed in Schedule 7 of the ERP (air/sea rescue services; air traffic control services; civil aviation telecommunication services; electricity services; emergency services in times of national disaster; fire services; health services; hospital services; lighthouse services; meteorological services; mine pumping, ventilation and winding; sanitary services; supply and distribution of fuel, petrol, oil, power and light essential to the maintenance of the services in Schedule 7; telecommunications; transport services necessary for the operation of any services in Schedule 7; and water services), the essential national industries declared under the ENID (financial industry, telecommunications industry, civil aviation industry and public utilities industry) and the corresponding companies designated under the ENID, as well as the Government, statutory authorities, local authorities and government commercial companies (according to the FTUC, the latter item further qualifies the sugar industry and the fishing industry as essential services). This expanded list, as indicated by the Government, concerns workplaces where workers may choose means of representation other than trade unions.

The new definition applicable to Part 19 of the term “trade union” (section 185) refers to a trade union of workers registered under the ERP, which shall include a bargaining unit formed or registered under the ENID or under Part 19. Section 189(1) provides that a bargaining unit, which is formed under the ENID or by decision, through secret ballot, of 25 per cent of workers employed by the same employer in an essential service (section 189(4)), shall be deemed to be a trade union for the purposes of Part 19 and shall be entitled to engage in collective bargaining for the workers who are part of the bargaining unit and to lodge trade disputes to the Arbitration Court on behalf of those workers. Pursuant to section 189(3), a bargaining unit shall be entitled to register itself as a trade union under the ERP and shall, upon registration, be entitled to all the rights, and shall be subject to all the liabilities, applicable to a trade union under the ERP. Section 190 provides that all workers in an essential service shall have the right to form and join a trade union or a bargaining unit, and shall be entitled to engage in collective bargaining and have their trade disputes adjudicated by the Arbitration Court in accordance with Part 19. According to section 189(2), if a majority of the workers in a bargaining unit formed under the ENID decide, through secret ballot, to join a trade union established under the ERP, then that bargaining unit shall cease to exist and the workers shall, for the purposes of Part 19, be represented by that trade union.

The Committee notes that there is a dual use of the term “trade union” in the above provisions: on the one hand, the term is used in the traditional sense for workers’ organizations registered under Part 14 of the ERP; and on the other hand, the term is employed for bargaining units, whose officers are restricted to those working in the bargaining unit, and whose procedures for registration under Part 14, with accompanying constitutions, rules, elections of officers, general assemblies, etc. are not clear. The establishment of a bargaining unit appears to simply require under the ERP the holding of a ballot where 25 per cent of workers vote in favour. The Committee recalls that, according to the report of the 2014 ILO direct contacts mission:

[T]he mission heard numerous witnesses expressing deep concern about the effects of the ENID on the trade union movement in the country and the capacity to exercise trade union rights. Indeed, beyond the detailed provisions that the supervisory bodies have already requested be amended, the information gathered by the mission from all concerned, including enterprises covered by the Decree and their respective bargaining units, has led it to understand that it is not possible for trade unions as such to continue to function under the Decree. … The de-registration of unions and abrogation of collective bargaining agreements are not followed by the establishment of enterprise unions, but rather the creation of bargaining units with employee representatives that have to additionally create new legal structures for any dues collection. While it has been said that they can consult with outside unions, the employee representatives are nevertheless obliged to sit alone in negotiations with management representatives and hired lawyers apparently much better equipped for such dialogue; thus resulting in a severe imbalance of power in the bargaining process, not to mention the fear of reprisal that accompanies employee bargaining representatives who consider that their jobs may be in jeopardy.

The Committee observes that, in the case of a long list of essential services and industries, the ERP as now amended gives preference, just like the ENID, to the formation of worker representation in structures other than trade unions, by enabling “bargaining units” to be created with only 25 per cent of workers. Such representation will continue as the only representation at the workplace unless and until the workers vote by a majority (50 per cent plus one) to establish a trade union. In these circumstances, the Committee cannot but conclude that the amendments introducing the ENID approach to worker representation into the ERP perpetuate the undermining of the right of workers to establish trade unions of their own choosing and are likely to perpetuate the negative impact of the ENID on the trade union movement that was observed by the direct contacts mission. The Committee therefore calls upon the Government to review sections 185 and 189(1) and (3) in consultation with the representative national workers’ and employers’ organizations with a view to their amendment, so as to ensure that workers’ organizations are not effectively undermined.

In this regard, the Committee recalls that a minimum membership requirement for setting up a workers’ or employers’ organization should be fixed in a reasonable manner so as not to hinder the establishment of organizations, and not to preclude in practice the establishment of more than one trade union in each enterprise. In its 2012 General Survey on the fundamental Conventions, paragraphs 89 and 90, the Committee recalls that a minimum membership requirement of 40 workers for the mere purpose of setting up a union is excessive and criticizes minimum membership requirements of 30 per cent. In the interests of permitting trade union pluralism and ensuring that minimum membership requirements do not unduly restrict the rights of workers to form and join the organizations of their own choosing, the Committee must conclude that a provision imposing a minimum membership of 50 per cent for workers in the so-called essential services constitutes a violation of Article 2 of the Convention, and urges the Government to take measures to amend section 189(2) without delay.

As regards the definition of “trade union” in Part 19, the Committee emphasizes that, while certain rights traditionally viewed as trade union rights should also be enjoyed by employee representatives (e.g. protection against anti-union discrimination) or may be exercised by them where no trade union exists, the Committee considers that the right to participate in national tripartite bodies, and the right to nominate delegates to international bodies should remain the prerogative of workers’ and employers’ organizations within the meaning of the Convention. In this regard, the Committee observes that the Government appointed, in October 2015, 18 additional members to the ERAB, that at least two of the six new worker members were representatives of bargaining units, and that, the FTUC, denouncing that the expanded ERAB comprised many participants that have no status, advised that it could not be a party to the ERAB meetings. The Committee observes that similar issues are likely to arise with respect to the nominations to the worker panel feeding into the composition of the Arbitration Court. The Committee urges the Government to ensure that the composition of the worker and employer members to these bodies is determined by the representative national workers’ and employers’ organizations.

Moreover, the Committee notes that the FTUC denounces that there has been no remedy to the deregistration of trade unions and the discontinuation of disputes resulting from the introduction of the ENID, and observes that these points were among the matters of disagreement regarding the Employment Relations (Amendment) Bill that the ERAB had decided to record and discuss at a later stage. The Committee also notes the Government’s indication in the implementation report that the ERAB agreed that individual grievance cases filed by employees with the Employment Tribunal, which had been discontinued under the ENID provisions, should be reinstated before the courts for adjudication. Observing that the negative effects of the ENID on the trade union movement still persist, and recalling its previous comments concerning sections 6 and 26 of the now repealed ENID (cancellation of all existing trade union registrations in “essential national industries”; and lack of judicial recourse for rights disputes), the Committee urges the Government: (i) to re-register the trade unions that had been deregistered by virtue of section 6 of the ENID; and (ii) to implement the recommendation of the ERAB to reinitiate the resolution of the disputes that had been discontinued by section 26 of the ENID.

The Committee further observes that the following issues previously raised are still pending after the adoption of the Employment Relations (Amendment) Act 2015: denial of right to organize to prison guards (section 3(2)); excessively wide discretionary power of the Registrar in deciding after consultation whether or not a union meets the conditions for registration under the ERP (section 125(1)(a) as amended); obligation of union officials to be employees of the relevant industry, trade or occupation for a period of not less than three months (section 127(a) as amended); prohibition of non-citizens to be trade union officers (section 127(d)); interference in union by-laws (section 184); excessive power of the Registrar to request detailed and certified accounts from the treasurer at any time (section 128(3)); provisions likely to impede industrial action (sections 175(3)(b) and 180); and compulsory arbitration (sections 169 and 170; section 181(c) as amended; and new section 191BS (formerly 191(1)(c)). With reference to its earlier comments, the Committee requests the Government to review the abovementioned provisions of the ERP in consultation with the representative national workers’ and employers’ organizations with a view to their amendment, so as to bring the legislation into full conformity with the Convention.

Article 3. Right of workers’ organizations to organize their activities and to formulate their programmes. The Committee notes with concern the following additional discrepancies also raised by the ITUC between the provisions of the ERP as amended in 2015 and the Convention in terms of: provisions likely to impede industrial action (section 191BN); penalty of imprisonment in case of staging a (unlawful or possibly even lawful) peaceful strike in services qualified as essential (sections 191BQ(1), 256(a), 179 and 191BM); excessively wide discretionary powers of the Minister with respect to the appointment and removal of members of the Arbitration Court and appointment of mediators, calling into question the impartiality of the dispute settlement bodies (sections 191D, 191E, 191G and 191Y); compulsory arbitration in services qualified as essential (sections 191Q, 191R, 191S, 191T and 191AA); etc. The Committee notes that in light of the expanded list of essential services (noted under Article 2 above), these restrictions would cover a broad range of the economy; the Committee further observes, however, that they do not provide for an outright prohibition of industrial action. While noting with interest that the ERAB agreed to recommend to the Minister the reduction of the strike notice period from 28 to 14 days, the Committee notes with concern that the cumulative effect of the established system of compulsory arbitration applicable to “essential services”, and the accompanying harsh penalties involving imprisonment, is to effectively prevent or repress industrial action in these services. The Committee requests the Government to take measures to review the abovementioned provisions of the ERP in consultation with the representative national workers’ and employers’ organizations with a view to their amendment so as to bring the legislation into full conformity with the Convention.

Public service. As to the decrees relating to the public sector eliminating the access of public service workers to judicial or administrative review and restricting their rights under the Convention, the Committee notes with interest that section 191BW of the ERP as amended in 2015 provides that both Employment Relations (Amendment) Decree No. 21 of 2011 and Public Service (Amendment) Decree No. 36 of 2011 are repealed, which the Committee understands brings the public service workers back under ERP coverage. The Committee observes, however, that the public service as a whole, including public enterprises, is now qualified as an essential service and falls under Part 19 of the ERP, with the ensuing restrictions on the right of workers to establish organizations of their own choosing and refers to its comments above.

Electoral Decree. The Committee previously noted that section 154 of Electoral Decree No. 11 of 27 March 2014 as amended provides that the Elections Office shall be responsible for the conduct of elections of all registered trade unions, and firmly hoped that any supervision of elections of employers’ or workers’ organizations would be carried out by an independent body. The Committee notes the Government’s indication that the Elections Office in liaison with the Registrar of Trade Unions are conducting trade union elections, and that the Elections Office has conducted awareness campaigns on the electoral process and has developed an elections guideline in accordance with international requirements. The Committee requests the Government to provide a copy of the abovementioned guideline.

Constitution of the Republic of Fiji of 2013. The Committee recalls that in its previous comments it had noted with deep concern that the rights relating to freedom of association enshrined in the new Constitution (articles 19 and 20) are subject to broad exceptions and limitations for the purpose of regulating trade unions, collective bargaining processes and “essential services and industries, in the overall interests of the Fijian economy and the citizens of Fiji”, which could be invoked to undermine the underlying principles. The Committee observes that the Government has not replied to these matters. In light of the ITUC’s previous observations that these limitations could potentially be interpreted to permit very broad restrictions on the fundamental right to freedom of association, the Committee requests the Government once again to provide information on any court judgments issued interpreting these provisions, and trusts that they will be applied in full conformity with the provisions of the Convention.

Political Parties Decree. The Committee recalls that in its previous comments, it had noted that under section 14 of the 2013 Political Parties Decree, persons holding an office in any workers’ or employers’ organization are banned from membership or office in any political party and from any political activity, including merely expressing support or opposition to a political party, and had requested information in this regard. The Committee notes the Government’s indication that the same rules apply to other tripartite partners and affiliates of employers’ organizations, the public service and the judiciary; and that the purpose was to provide a fair political participation process and prevent the use of undue influence to gain advantage in the political arena. The Committee further notes that sections 113(2) and 115(1) of the Electoral Decree prohibit any public officer to conduct campaign activities, and any person, entity or organization that receives any funding or assistance from a foreign government, inter-governmental or non-governmental organization to engage in, participate in or conduct any campaign (including organizing debates, public forum, meetings, interviews, panel discussions, or publishing any material) that is related to the election. The Committee recalls that provisions imposing a general prohibition on political activities by trade unions or employers’ organizations for the promotion of their specific objectives are contrary to the Convention. The Committee requests the Government to take measures to review the above provisions in consultation with the representative national workers’ and employers’ organizations with a view to their amendment so as to ensure respect for this principle.