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

Individual Case (CAS) - Discussion: 2019, Publication: 108th ILC session (2019)



Written information provided by the Government

Response to the observations of the Committee of Experts on the Application of Conventions and Recommendations (CEACR) on trade union and civil liberties

Mr Felix Anthony has been able to organize and carry out his union activities without any interference from the Fijian Government. The Fijian Constitution ensures that all workers have the right to fair employment practices, including the right to join a trade union and participate in its activities. The Fijian Constitution also guarantees all workers their right to freedom of association.

The Commissioner of Police (hereinafter “the Commissioner”) as provided for under the Fijian Constitution is authorized to investigate circumstances of a possible violation of any laws. This authority includes the power to arrest, search and detain as necessary. Similarly, the Office of the Director of Public Prosecutions (ODPP) is responsible for the conduct of criminal prosecutions and is not subject to the direction or control of the Fijian Government. Therefore, any actions taken by the Commissioner or police officers at the arrest, search and detention of any person as alleged by the FTUC and the ITUC were not intended to harass and intimidate trade unionists but to allow the Commissioner to conduct further investigations into alleged violations of relevant laws. The subsequent prosecution of any persons as a result of such investigations is decided by the ODPP and is not subject to the control of the Fijian Government.

Response to the observations of the CEACR on legislative issues

1. Employment Relations Advisory Board (ERAB)

The ERAB is established under the Act and consists of public officers as representatives of the Government, representatives of employers and representatives of workers.

The Minister for Employment is the appointing authority for the ERAB. In making appointments, the Minister must appoint persons who, in the opinion of the Minister, have experience and expertise in the areas covered by the functions of the ERAB or in employment relations, industrial, commercial, legal, business or administrative matters.

With respect to the appointment of representatives for employers and workers, the Minister is required to appoint persons nominated by bodies representing employers or workers, respectively.

Following the expiry of the previous members’ term, the Minister for Employment appointed new members to the Board. Nominees were received from the Fiji Islands Council of Trade Unions, the Fiji Public Service Association and the Fiji Bank and Finance Sector Employees Union. The appointment of workers’ representatives and employers’ representatives to ERAB are based on the nominations received by the Minister.

2. Fiji National Provident Fund (FNPF)

With respect to the Fiji National Provident Fund Board, the appointing authority is the Minister responsible for finance (hereinafter “the Minister for Economy”).

The Board members are appointed in accordance with the process for appointment and criteria for selection for appointment under the Fiji National Provident Fund Act 2009 (hereinafter “the FNPF Act”). The FNPF Act only allows for one public official to be a member of the Board.

With respect to any appointments to the Board, the Minister must be satisfied that the members would between them have appropriate skills and expertise in investment management, corporate governance, accounting and auditing, finance and banking, risk management, law, acting as an actuary or an auditor, and information technology or a similar engineering discipline.

3. Fiji National University (FNU)

The Council of the Fiji National University (hereinafter “the Council”) is the Fiji National University’s (hereinafter “the FNU”) governing body. The Council is made up of four ex officio members, 14 appointed members, five elected members and up to three co-opted members, as follows:

(a) Ex officio members:

(i) the Chancellor;

(ii) the Deputy Chancellor;

(iii) the Vice-Chancellor; and

(iv) the Permanent Secretary for Education.

(b) Members appointed by the Minister for Economy who, according to the Minister, have adequate qualifications, skills, expertise and knowledge to contribute to the disciplines offered by the FNU and the general administration and financial management of a tertiary institution.

(c) Elected members, as follows:

(i) one head of a college of the FNU;

(ii) one member of the FNU’s full-time professorial staff;

(iii) one member of the FNU's full-time non-professorial academic staff;

(iv) one student representing undergraduate students;

(v) one student representing postgraduate students; and

(d) up to three co-opted members as appointed by the Council.

4. Wages council

The Minister may, on the recommendation of the ERAB and having been satisfied that no adequate machinery exists for setting effective remuneration for a class of workers or that the existing machinery is likely to exist or is inadequate, establish a wages council.

Prior to the making of an order for a wages council, the Minister for Employment is required to firstly inform the public by way of publication in the Gazette of the proposed wages council order and allow for any objections to be made to the proposed order.

5. Air Terminal Services (Fiji) Limited (ATS)

ATS is a private company in which the Fijian Government holds 51 per cent of shares and the ATS Employee Trust (hereinafter “ATSET”) holds the remaining 49 per cent of the shares.

The ATS Board consists of seven members out of which four members are appointed by the Government and three workers’ representatives are appointed by ATSET. The Fijian Government accordingly appoints its representatives to the ATS Board. The Fijian Government does not have any authority over the appointment of persons to the Board made by ATSET.

The ERAB is the only statutory body that provides for a tripartite composition inclusive of representatives for workers. The functions of the ERAB are clearly stipulated in the Act. The FNPF and FNU are statutory bodies with their own statutory functions provided in their respective laws, and the compositions for their governing bodies are distinct from the ERAB. Furthermore, ATS is a private company and its Board members are determined in accordance with the shareholding structure of ATS.

Response to the observations of the CEACR on the review of the labour legislation, as agreed in the Joint Implementation Report (JIR)

In the spirit of social dialogue and tripartism, the Fijian Government continues to engage with its social partners on the way forward to implement the outstanding matters in the JIR. The tripartite partners recently met to discuss the way forward and proposed timelines for dealing with the outstanding matters of the JIR.

The Fijian Government has been able to hold the following meetings:

(a) 11 March 2019 meeting with the Minister for Employment, Productivity and Industrial Relations, Honourable Parveen Kumar, Permanent Secretary for Employment, Osea Cawaru, trade unionists Felix Anthony, Daniel Urai and two union officials, and employers’ representative, Nezbitt Hazelman; and

(b) 3 April 2019 meeting with the tripartite partners, ILO Director for Pacific Island Countries, Donglin Li, and ILO Decent Work and International Labour Standards Specialist, Ms Elena Gerasimova.

During the 3 April 2019 meeting, the tripartite parties agreed that the Fijian Government has implemented a number of matters under the JIR, primarily by way of amendments to the Act. These amendments relate to:

(i) the restoration of check-off facilities;

(ii) reduction of strike notice to 14 days for essential services and industries;

(iii) reinstatement of grievances which were discontinued by the Essential National Industries Decree;

(iv) removal of all references to bargaining units in the Act and allowing workers to freely join or form a trade union (including an enterprise trade union);

(v) repeal of sections 191X and 191BC of the Act;

(vi) application for compensation for workers employed in an essential national industry or a designated corporation or designated company under the Essential National Industries (Employment) Decree 2011 (hereafter “the Decree”) whose employment was terminated during operation of the Decree; and

(vii) any trade union deregistered was entitled to apply to be registered again.

The outstanding matters under the JIR which the tripartite parties are working towards implementing include the review of labour laws and the review of the list of essential services and industries. The ILO has offered to provide technical assistance for the review of the list of essential services and industries. The Fijian Government is liaising with the ILO on the proposed tentative date provided by the ILO technical expert in relation to the workshop to be conducted for the social partners.

The Fijian Government also met with its tripartite partners on 30 April 2019 to review the agreed proposed amendments to the Act. During this meeting, the tripartite partners made good progress on the discussion of the proposed amendments to the Act and agreed to continue discussions. While the Fijian Government had proposed to continue discussions during the third week of May, Fiji Trade Union Congress (FTUC) representative, Mr Felix Anthony, informed that they would be providing their response to their participation at the tripartite dialogue on 1 June 2019.

Despite the FTUC’s withdrawal from participating in the tripartite dialogue and Board meeting on 5 September 2018, the Fijian Government remains committed to undertake its obligations under the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), and continues to recognize the FTUC and the Fiji Commerce and Employers Federation as tripartite partners in advancing social dialogue.

Response to the observations of the CEACR on Article 2 of the Convention concerning pending matters under the Employment Relations (Amendment) Act 2016

The ERAB is continuing its review of the labour laws and the inclusion of any proposed amendments to the Act. Any agreed proposed amendments will subsequently be submitted to the Parliament of the Republic of Fiji for its deliberation.

Response to the observations of the CEACR on Article 3 of the Convention concerning the list of essential services and industries

The Fijian Government acknowledges that an outstanding matter under the JIR is the review of the list of essential services and industries. The Fijian Government confirms that the ILO has offered to provide technical assistance for the review of the list of essential services and industries.

On 29 May 2019, the Permanent Secretary for Employment, Mr Osea Cawaru, and team met with Mr Felix Anthony to discuss the union’s case against the Water Authority. In this meeting Mr Anthony and the Permanent Secretary agreed on a suitable date to have the Essential National Industries Workshop, tentatively towards the end of October or early November 2019. This was communicated to the ILO Office of the Pacific Island Countries in Suva on 30 May 2019. The Fijian Government has been advised that the ILO Suva Office is liaising with the technical expert on the proposed dates.

Response to the observations of the CEACR on the outstanding matters under the Employment Relations Promulgation (ERP)

The Fijian Government notes the comments provided by the Committee of Experts and will continue to work with its tripartite partners in reviewing the labour laws.

Response to the observations of the CEACR on the right to assembly under the Public Order (Amendment) Decree (POAD)

The Fijian Government notes the request from the Committee. It, however, restates that the permit requirement under section 8 of the Public Order Act 1969 applies to all persons in Fiji. The permit requirement is appropriate and necessary for the purpose of determining matters of public importance such as national security, public safety, public order, public morality, public health or the orderly conduct of elections and the protection of the rights and freedoms of others.

Response to the observations of the CEACR on the need to amend the Political Parties Decree

The Fijian Government reiterates that the activities of any trade unionist and employers’ organization representatives must be apolitical and for the purpose of regulating the relationship between workers and employers.

The restriction of a public officer (which includes holding an office in any trade union) from joining a political party and from engaging in any political activity under the relevant laws ensures political neutrality in the performance of the functions of the public office. It also ensures that persons holding public offices do not use their public office resources, including funds, to finance their political campaigns or advance their political agenda, and safeguards against abuse of office.

However, a public office holder intending to join a political party or engage in any political activity may do so by resigning from their public office.

Response to additional issues raised

1. Complaint of the FTUC against the Water Authority of Fiji (National Union of Workers v. Water Authority of Fiji)

The Fijian Government is not privy to the employment dispute lodged by the National Union of Workers against the Water Authority of Fiji and is therefore not in a position to comment on the complaint.

Under the Act, any employment dispute successfully lodged with the Permanent Secretary for Employment is referred to the Employment Relations Tribunal (hereinafter “the Tribunal”) or in the case of an essential service and industry, lodged with and determined by the Arbitration Court. The jurisdiction, powers and functions of the Tribunal and Arbitration Court are provided under the Act and their decisions are subject to appeal.

2. Right to strike

The Fijian Constitution guarantees every person in Fiji the right, peacefully and unarmed, to assemble, demonstrate, picket and present petitions. The Act also makes provision for the prerequisites for undertaking a strike, including the provision of a notice of secret ballot to the Registrar of Trade Unions 21 days prior to the nominated date to hold the ballot.

3. Air Terminal Services dispute where workers were locked out in 2017–18

Matters regarding Air Terminal Services Limited in relation to the 2017–18 lockout were heard and determined by the Employment Relations Tribunal. The Fijian Government was not a party to the proceedings and did not have authority to intervene in the proceedings.

4. Long-standing Vatukoula Gold Mines strike (29 years) still appears in the CEACR Report

By way of background, in or about 1991, 436 miners, who were members of the Fiji Mine Union Workers (FMWU) went on strike against their employer, Emperor Gold Mining Company (Emperor) Limited (hereinafter “the VGM”). The VGM dismissed the workers between April and July 1991.

Thereafter, the Permanent Secretary for Employment (hereinafter “the Permanent Secretary”) purportedly accepted a report of a trade dispute (hereinafter “the trade dispute”) under the Trade Disputes Act [Cap 96A] from a group of workers calling themselves “the organizing committee of the mine workers”. The VGM then filed a judicial review application against the Permanent Secretary’s acceptance of the trade dispute, and the Fijian High Court ruled in favour of the VGM by determining that the Permanent Secretary did not have authority to accept the trade dispute (State v. Permanent Secretary of the Ministry of Employment, Industrial Relations ex parte: Emperor Gold Mining Company Limited, Jubilee Mining Company Limited and Koula Mining Company Limited, Judicial Review No. 32 of 1991).

In a separate court proceeding, the Fijian High Court determined that the termination of the 436 workers by the VGM was lawful (Emperor Gold Mining Company Limited, Jubilee Mining Company Limited and Koula Mining Company Limited v. Jone Cagi & Ors 205 of 1991 in State v. Permanent Secretary of the Ministry of Employment, Industrial Relations ex parte: Emperor Gold Mining Company Limited, Jubilee Mining Company Limited and Koula Mining Company Limited, Judicial Review No. 32 of 1991).

In or about May 2014, the Fijian Government met with the FMWU representatives who sought compensation of $2 million for every worker involved in the 1991 strike – 364 workers in total. Noting that the Fijian Government is not legally obliged to compensate the workers, the Fijian Government is considering the request from the FMWU representatives.

5. Imposition of individual contracts

The Fijian Government has undertaken a job evaluation exercise of its employment positions in 2017. This exercise included the broad banding of positions and benchmarking to the private sector to decrease administration, streamline salary management, and provide attractive and competitive salaries across the civil service. During the job evaluation exercise, the Fijian Government consulted and discussed the proposed changes to the salary structure with public sector unions. Following the job evaluation exercise, new employment contracts were offered to all civil servants in August 2017 to reflect the new working conditions and ensure consistency across the civil service. However, some civil servants have opted to remain as permanent employees and therefore did not sign the new contracts.

Employment contracts were introduced into the Fijian civil service in 2009. Prior to the 2017 job evaluation exercise, about 74 per cent of civil servants held employment contracts. To date, 99 per cent of civil servants hold employment contracts.

Discussion by the Committee

Government representative – In reference to the issues raised concerning the Joint Implementation Report (JIR) of 29 January 2016, legislative aspects of labour legislation and trade union rights and civil liberties, the response of the Fijian Government is as follows.

Mr Felix Anthony has been able to organize and carry out his union activities without any interference from the Fijian Government. The Fijian Constitution ensures that all workers have the right to fair employment practices including the right to join a trade union and participate in its activities. The Fijian Constitution also guarantees all workers their right to freedom of association. The Commissioner of Police as provided for under the Fijian Constitution is authorized to investigate circumstances of a possible violation of any laws. This authority includes the power to arrest, search and detain as necessary. Similarly, the Office of the Director of Public Prosecutions (ODPP) is responsible for the conduct of criminal prosecutions and is not subject to the direction or control of the Fijian Government. Therefore any actions taken by the Commissioner of Police or its police officers at the arrest, search and detention of any person as alleged by the Fiji Trades Union Congress (FTUC) and the International Trade Union Confederation (ITUC) were not intended to harass and intimidate trade unionists but to allow the Commissioner to conduct further investigations into alleged violation of relevant laws. The subsequent prosecution of any persons as a result of such investigations is decided by the ODPP and is not subject to the control of the Fijian Government.

On labour laws reform, I wish to draw the attention of the Committee to the following. First, the Employment Relations Advisory Board (ERAB) is established under the Employment Relations Act of 2007 (the Act) and it consists of public officers and representatives of Government, representatives of employers and representatives of workers. The Minister of Employment is the appointing authority for the ERAB. In making appointments, the Minister must appoint persons who, in the opinion of the Minister, have the experience, the expertise, in the areas covered by the functions of the ERAB or in employment relations, industrial, commercial, legal, business or administrative matters. With respect to the appointments of representatives for employers and workers, the Minister is required to appoint persons nominated by bodies representing employers or workers, respectively. Following the expiry of the previous members’ term, the Minister for Employment appointed new members to the Board. Nominees were received from the Fiji Islands Council of Trade Unions, Fiji Public Service Association and the Fiji Bank and Finance Sector Employees Union. The appointment of workers’ representatives and employers’ representatives to the ERAB are based on the nominees received by the Minister.

Concerning the Fiji National Provident Fund (FNPF) Board, the appointing authority is the Minister responsible for finance. In this case the Minister for Economy. The Board members are appointed in accordance with the process of appointment and criteria for selection for appointment under the FNPF Act. The FNPF Act allows for one public official to be a member of the Board. With respect to any appointments to the Board, the Minister must be satisfied that the members would between them have appropriate skills and expertise in investment management, corporate governance, accounting and auditing, finance and banking, risk management, law, acting as an actuary or an auditor, and information technology or a similar engineering discipline.

As to the Fiji National University (FNU), the Council of the FNU (the Council) is the FNU governing body. The Council is made up of 4 ex officio members, 14 appointed members, 5 elected members and up to 3 co-opted members as follows: (i) the ex officio members: the Chancellor; the Deputy Chancellor; the Vice-Chancellor; and the Permanent Secretary for Education; (ii) members appointed by the Minister for Economy who, according to the Minster, have adequate qualifications, skills, expertise and knowledge to contribute to the disciplines offered by the FNU and the general administration and financial management of a tertiary institution; (iii) elected members, as follows: one head of college of the FNU; one member of the FNU’s full-time professional staff; one member of the FNU’s full-time and non-professional academic staff; one student representative of the undergraduates; and one student representing postgraduate students; and (iv) up to three co-opted members as appointed by the Council.

On the wages council. The Minister may, on the recommendation of the ERAB and having been satisfied that no adequate machinery exists for the setting of effective remuneration for a class of workers or that the existing machinery is likely to exist or inadequate, establish a wages council. Prior to the making of an order for a wages council, the Minister for Employment is required to firstly inform the public by way of publication in the Gazette of the proposed wages council order and allow for any objections to be made to the proposed order.

On the Air Terminal Services (Fiji) Limited (ATS). ATS is a private company in which the Fijian Government holds 51 per cent of shares and the ATS Employee Trust (ATSET) holds the remaining 49 per cent of the shares. The ATS Board consists of seven members, out of which four members are appointed by Government and three workers’ representatives appointed by ATSET. The Fijian Government accordingly appoints its representatives to the ATS Board. The Fijian Government does not have any authority over the appointment of persons to the Board made by ATSET. The ERAB is the only statutory body that provides for a tripartite composition inclusive of representatives of workers. The functions of the ERAB are clearly stipulated in the Act. The FNPF and FNU are statutory bodies with their own statutory functions provided in their respective laws, and the compositions for their governing bodies are distinct from the ERAB. Furthermore, ATS is a private company and its Board members are determined in accordance with the shareholding structure of ATS.

In the spirit of social dialogue and tripartism, the Fijian Government continues to engage with its social partners on the way forward to implement the outstanding matters in the JIR. The tripartite partners recently met to discuss the way forward and proposed timelines for dealing with the outstanding matters of the JIR. The Fijian Government have been able to hold the following meetings. On 11 March 2019, meeting with the Minister for Employment, the Honourable Parveen Kumar, the Permanent Secretary, myself, the trade unionists Mr Anthony, Mr Daniel Urai and two other union officials, and the employers’ representative, Mr Nezbitt Hazelman. On 3 April 2019, meeting with the tripartite partners, that included the ILO Director for the Pacific Island Countries, Mr Donglin Li, and the ILO Decent Work and International Labour Standards specialist, Ms Elena Gerasimova. During the 3 April 2019 meeting, the tripartite parties agreed that the Fijian Government has implemented a number of matters under the JIR. Primarily, by way of amendments to the Act, these amendments relate to: (i) the restoration of check-off facilities; (ii) reduction of strike notice to 14 days for essential services and industries; (iii) the reinstatement of grievances which were discontinued by the Essential National Industries (Employment) Decree 2011; (iv) the removal of all references to bargaining units in the Act and allowing workers to freely join or form a trade union, including an enterprise trade union; (v) repeal of sections 191X and 191BC of the Act, (vi); the application for compensation for workers employed in an essential national industry or a designated corporation or designated company under the Essential National Industries (Employment) Decree 2011 whose employment was terminated during the operation of the Decree; and (vii) any trade union deregistered was entitled to apply to be registered again. The outstanding matters under the JIR which the tripartite parties are working towards implementing includes the review of labour laws and the review of the list of essential services and industries. The ILO has offered to provide technical assistance for the review of the list of essential national services and industries. The Fijian Government is liaising with the ILO on the proposed tentative date provided by the ILO technical expert in relation to the workshop to be conducted for social partners. The Fijian Government also met with its tripartite partners on 30 April to review the agreed proposed amendments to the Act. During this meeting, the tripartite partners made good progress on the discussion of the proposed amendments to the Act and agreed to continue discussions. While the Fijian Government had proposed to continue discussions during the third week of May, the FTUC representative, Mr Anthony, informed that they would be providing their response to their participation at the tripartite dialogue on 1 June 2019. Despite the FTUC’s withdrawal from participating in the tripartite dialogue and the Board meeting on 5 September 2018, the Fijian Government remains committed to undertaking its obligations under the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), and continues to recognize the FTUC and the Fiji Commerce and Employers’ Federation as tripartite partners in advancing social dialogue.

In relation to Article 2 of the Convention, I wish to address that the ERAB is continuing its review of the labour laws and the inclusion of any proposed amendments to the Act. Any agreed proposed amendments will subsequently be submitted to the Parliament of the Republic of Fiji for its deliberation.

In relation to technical assistance from the ILO on the definition of essential services, I wish to advise that the Fijian Government acknowledges that an outstanding matter under the JIR is the review of the list of essential services and industries. The Fijian Government confirms that the ILO has offered to provide technical assistance for the review of the list of essential services and industries. On 29 May 2019, the Permanent Secretary, Mr Cawaru, met with Mr Anthony to discuss the union’s case against the Water Authority. In this meeting, Mr Anthony and the Permanent Secretary agreed to a suitable date to have the Essential National Industries Workshop, tentatively towards the end of October or early November 2019. This was communicated to the ILO Office of the Pacific Island Countries in Suva on 30 May and the Fijian Government has been advised that the ILO Suva Office is liaising with the technical experts on the proposed dates.

In relation to the obligation of union officials to be employees of the relevant industries or trade, and other issues concerning strikes and assemblies under the Employment Relations Act, the Fijian Government notes the comments provided by the Committee of Experts and will continue to work with its tripartite partners in reviewing the labour laws.

In relation to the Public Order Act, the Fijian Government notes the request from the Committee of Experts. It, however, restates that the permit requirement under section 8 of the Public Order Act 1969 applies to all persons in Fiji. The permit requirement is appropriate and necessary for the purpose of determining matters of public importance such as national security, public safety, public order, public morality, public health and the orderly conduct of elections and the protection of the rights and the freedom of others.

As for the Political Parties Decree, the Committee of Experts recalled 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 that sections 113(2) and 115(1) of the Electoral Decree prohibit any public officer from conducting campaign activities and any persons, 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 forums, meetings, interviews, panel discussions or publishing any material that is related to the election, and had requested information in this regard. The Committee noted the Government’s reiteration that it has undertaken reforms, including the voting system, to create transparent rules of governance and that these provisions seek to ensure the political neutrality of public officers which include trade union officers. It further noted the continuing concerns of the FTUC that these provisions have created fear among the trade unionists as they have been accused of taking part in political activities when they have simply participated in union meetings, while the Decree itself denies the basic right of unionists to participate in political activities.

A full report of our response was provided in advance to the Committee last week and we seek the indulgence of the Committee to also rely on that report as I have used up my time.

Worker members – The violation of freedom of association in Fiji continues to be a very serious concern. As you recall, the Government of Fiji has a long history of hostility to the exercise of this fundamental right, as well as the institution of the ILO itself.

In June 2011, the Committee called on the then military Government of Fiji to establish tripartite dialogue with ILO assistance. In September 2012, a direct contacts mission attempted to visit the country but had been expelled. In 2013, having noted the lack of cooperation by the Government, the Governing Body of the ILO repeated its request to find appropriate solutions and to accept a direct contacts mission. In November 2015, the ILO Governing Body authorized a tripartite mission. That mission visited Fiji at the end of January 2016. At the conclusion of the mission, the Government acknowledged that its legal reforms did not comply with the Convention and agreed to another tripartite agreement to reform its legislation and comply with the terms of its previous agreement. The Government of Fiji was required to complete all agreed reforms before the March 2016 session of the Governing Body. While some reforms were made and led to the withdrawal of the Commission of Inquiry complaint, many important issues were not addressed. Regrettably, the Government did not follow through on these outstanding commitments. Since the eyes of the international community turned away in 2016, the Government has walked away from its commitments and has instead returned to the use of threats, arbitrary arrests, pre-trial detentions and harassment. The persistent refusal to make progress on the JIR, and the continued and rising attacks on the exercise of the right to freedom of association requires the Committee to prioritize this serious case. We can simply not allow this situation to continue in Fiji.

We are deeply concerned about the return to violence against unionists and the repression of trade union rights and civil liberties. For example, on 1 May this year, hundreds of workers of the Water Authority of Fiji were preparing to picket against the Authority. The picket was lawful. However, the riot- and plain-clothed police stormed the union property and prevented the picket from taking place. Twenty-nine members of the National Union of Workers were arrested. Mr Felix Anthony, the National Secretary of the FTUC, was also arrested on the same day. Shockingly, he was arrested during a tripartite meeting that took place at the Ministry in the presence of the ILO. How can we talk about respect for freedom of association and social dialogue when tripartite meetings are disrupted in this manner by the police? The arrest was followed by the search of trade union offices and the confiscation of documents, computers, USB keys and the interrogation of union staff. Mr Anthony remains under surveillance. A further detail to these incidents that is of serious concern to us is the fact that the police relied on the Public Order Decree in order to restrict trade union gatherings and meetings. Section 8 of the Public Order (Amendment) Decree provides public authorities with the discretion to refuse a permit to hold an assembly to those that had previously been denied a permit. Moreover, the authorities may deny the permit to allow assemblies on very broad and undefined grounds. Any assembly that could be considered to prejudice peace, public safety and good order may be denied. The section also criminalizes any person or organization who would allegedly undermine or sabotage the economy or financial integrity of Fiji. These are very broad grounds and therefore prone to abuse. Indeed, as we have seen in the incidences I just mentioned, this provision continues to be applied in a manner that interferes, prevents and frustrates peaceful trade union meetings and assemblies. This is a blatant violation of the Convention. The right of trade unions to hold meetings in their premises, without prior authorization and interference by the authorities, is an essential element of freedom of association. Public authorities must stop interfering with trade union affairs. In light of these violations perpetrated by the Government, immediate steps must be taken to review the Public Order Decree, especially section 8, to bring it into line with the Convention. The right to freedom of assembly must be guaranteed both in law and in practice. The harassment and intimidation of workers by the security forces is persistent, more generally speaking. These tactics are used to undermine and silence social partners as they pursue their legitimate activities and objectives. Using detention and other police tactics against trade union leaders or members to influence their activities or membership is contrary to the principles of freedom of association and civil liberties. The Government must take steps to ensure that the police and other security forces abide by Fiji’s international labour standards obligations.

Second, it is deeply concerning that the Fijian Government is manipulating national tripartite bodies to undermine the effective representation of workers’ and employers’ organizations. The Committee of Experts report indicates that the Government has interfered in the representation of workers’ and employers’ bodies such as the Fiji National Provident Fund, the Productivity Authority of Fiji, the Air Terminal Service and the wages councils, the Arbitration Court and the ERAB by removing or replacing members. Clearly, this is a gross interference in union affairs weakening the union from carrying out its basic function, which is to represent the interests of the workers. The protection of the autonomy and independence of workers’ and employers’ organizations in relation to the public authorities demands that the organizations determine their own representatives to national tripartite or representative bodies. The Government must address these concerns rapidly.

Third, we once again remind the Committee, and particularly the Government of Fiji, that the closure of the article 26 complaint was premised on the commitment of the Government to make steady progress with the realization of the JIR. This critically includes the review of the labour laws. We join the Committee of Experts that no progress whatsoever has been made. The Employment Relations Promulgation continues to retain repressive provisions which violate the Convention. Time will not allow me to detail all non-compliant provisions. However, I would like to point at a few examples that demonstrate the restrictive nature of the national legislative framework. The Law denies the right to establish trade unions without prior authorization. The Registrar retains excessively wide discretionary powers to refuse the registration of a trade union under section 125. Section 3(2) denies prison workers the right to form or join unions. Section 127(d) prohibits non-citizens from becoming trade union officers. Section 184 permits interference in the making of union by-laws. Section 128(3) grants excessive powers to the Registrar to demand access to trade union accounts at any time rather than calling for yearly audits as permitted under the Convention. The Law, in other sections, permits imprisonment in case of peaceful strikes in essential services. The Law also grants wide discretionary powers to the Minister with respect to the appointment and removal of members of the Arbitration Court and the appointment of mediators. I could go on and on with more examples, but I stop here.

The Committee of Experts has on several occasions reviewed these provisions as violating the Convention and has called on the Government to amend the provisions including the labour law as a whole. It is simply unacceptable that the Government has done nothing in four years to review these provisions. The Government should take urgent steps, in consultation with the social partners, to review these laws in line with the JIR. The Committee of Experts also points out that section 14 of the 2013 Political Parties Decree bans office holders in workers’ and employers’ organizations from membership or office in any political party. The exclusion of union office holders from political activities is confirmed by sections 113(2) and 115(1) of the Electoral Decree, which prohibits any public officer from conducting campaign activities. The Decree bans any entity that receives funding or assistance from a foreign government, intergovernmental or non-governmental entities from engaging in, participating in or conducting any campaign that is related to the elections. The ban and restrictions on trade unions, either directly or indirectly, from engaging in political activities constitutes a manifest violation of the Convention and the principles of freedom of association and civil liberties. Trade unions must enjoy the right to engage in public debates concerning economic and social policy without the fear that they may face retaliation or other consequences that would limit their rights under the Convention. The decision to cooperate with organizations outside the country must also be left to the discretion of the trade union. These provisions have been called out by the Committee of Experts as unduly restrictive. We join the Committee of Experts in calling for immediate amendments of the laws. Despite repeated disappointments over the Government’s failure to make a genuine effort to fully implement the JIR, we still believe that this must be the way forward. The Government must immediately return to the negotiating table with the social partners and fully implement the JIR. Safeguards and guarantees for those participating in such a dialogue must be guaranteed. We repeat that violent police interference targeting trade union leaders is not conducive in this respect. This must never happen again. The Government must walk the talk and demonstrate meaningful action in order translate its stated commitments into actual change that will finally put an end to these violations.

Employer members – The Employers’ group would like to begin by thanking the Government for their intervention today, and the provision of written information in advance. We note the Government’s submissions regarding its efforts to engage in consultation with national workers’ and employers’ organizations, as well as the Government’s submissions regarding its efforts to collaborate with the ILO.

This case stems from claims made by the FTUC that it and its members have been discriminated against by the Government. These claims relate primarily to a claimed lack of progress in the implementation of the JIR signed by the Government, the FTUC and the Fiji Commerce and Employers Federation on 29 January 2016, which, as the Worker spokesperson has explained, gave rise to the closure of the procedure earlier invoked under article 26 of the ILO Constitution. The FTUC claims that a persistent lack of progress in implementing the JIR, as well as continuing harassment and intimidation of trade unionists and violations of human rights continues. It is mainly for this reason that the Committee of Experts has decided to examine the Convention outside of its normal reporting cycle.

The FTUC also alleges that the Government has systematically dismantled tripartism by removing or replacing the tripartite representation on a number of bodies, including the ERAB, the National Provide Fund, the Fiji National University Training, the Productivity Authority of Fiji, the Air Terminal Service and the wages councils, with its own nominees.

A third general area of concern expressed by the FTUC relates to the Political Parties Decree, under section 14 of which 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 expressing support or opposition. The FTUC has explained that its concerns relate to these provisions placing trade unionists at risk of being accused of taking part in political activities by participating in union meetings. At the outset, the Employers note that from a principle perspective we do not necessarily object to the notation that activities of any employers’ or workers’ organizations should be apolitical. Restrictions on public officers in engaging in political activity could be used to attempt to ensure political neutrality in the performance of the functions of the public office. It could also provide confidence that persons holding public offices do not use their public office resources, including funds, to finance political campaigns or advance a particular political agenda. Political activity may still be possible though the resignation from public office. This kind of restriction has been done in the past and the employers’ or workers’ representative can resume their role in the trade union or employer federation after contesting the general election. Having made this preliminary note, we would wish to make the following observations regarding the Committee of Experts’ more detailed observations on this case. We note that the Fijian Constitution guarantees all employees the right to the freedom of association. This makes the recent arrest and subsequent release of the FTUC General Secretary all the more unfortunate, since the tripartite parties had just come to an agreement and set definite timelines to achieving the remaining two items under the JIR, which were a review of the list of organizations under the essential services and a review of the Employment Relations Act. It appears that the incident had the equally unfortunate effect of dissuading the FTUC from taking further part in progressing the work of the items remaining under the JIR. The Employers sincerely hope that the FTUC decides to return to the discussion table so that the two outstanding issues within the JIR can be achieved before the November Governing Body meeting. In seeking the re-engagement of the FTUC, the Employers agree that more can be done and should be done by the Government to ensure that regular meetings take place in a climate free from intimidation. Recent changes to the management of the Ministry of Employment, Productivity and Industrial Relations, and the chairmanship of the ERAB will, in the Employers’ opinion, potentially serve to make a constructive difference to progress.

Unlike the FTUC, the Employers understand that the Fiji Commerce and Employers Federation has no issue with the idea that statutory bodies be comprised of competent individuals. It accepts that this means that no one organization has absolute rights to representation on such bodies if their candidates do not possess the requisite attributes. This general view appears to apply to bodies such as the National Provident Fund, the National University and the ERAB. Employees, through such organizations as the FTUC used to enjoy board memberships as part of the tripartite requirement to certain boards. With respect to any appointment to the Fiji National Provident Fund Board, the appointing Minister must be satisfied that the members would between them have appropriate skills and expertise in investment management, corporate governance, accounting and auditing, finance and banking, risk management, law, actuary or auditor experience, and information technology or similar engineering experience and professional accreditation. In respect of the Fiji National University council members, we understand that the Minister appointing council members must be satisfied that the person appointed to the council must have adequate qualifications, skills, expertise and knowledge to contribute to the disciplines offered at the Fiji National University, as well as the general administration and financial management of such an institution. Currently, the Fiji Commerce and Employers Federation continues to be invited to submit a nominee to the Minister. However, we understand the FTUC is not extended such an invitation. The Employers are of the view that it would be appropriate for the FTUC to also be invited to submit candidates on the understanding that neither the employers nor the union have a right to have their candidate selected if such candidates do not possess the appropriate expertise.

In respect of the ERAB, this is a statutory body that provides for a tripartite composition inclusive of representatives for workers. Its functions are clearly stipulated in the Employment Relations Act. Importantly, it is the principle tripartite mechanism for discussing and agreeing changes to Fiji’s labour relations environment. Until recently, progress towards giving effect to the JIR has been steady. The Fiji Commerce and Employers’ Federation together with the FTUC have on two occasions gone through a review of the entire Act and agreed to, we understand, 90 per cent of the proposed changes in an effort to ensure compatibility to the Conventions taking into account the comments offered by the Committee of Experts. As evidence of this progress, on 3 April 2019, the tripartite parties agreed that a number of matters under the JIR have been implemented, primarily by way of amendments to the Act. These amendments relate to: the restoration of check-off facilities; the reduction of strike notice; the reinstatement of grievances; the removal of references to bargaining units in the Act; repeal of certain sections – 191 and 191X and 191BC of the Act, as well as dealing with trade union deregistration and the entitlement to become registered once again. There are still outstanding matters under the JIR which the tripartite parties, we understand, are working towards progress in implementation, which includes the review of labour laws and the review of the list of essential services and industries. A date has been proposed to receive an ILO technical expert on essential services which we hope and expect will see this activity completed. In addition, as part of the development of a new employment relations regime, the Fijian employers have gone on record seeking the Government to set up a formal mechanism when dealing with wage setting across the ten industries covered under the national wage-fixing mechanism. We understand that any wage adjustment must first see the approval of the ERAB whose role is to advise the Minister and that discussions are continuing on this point. An outstanding matter under the JIR is noted, which is the review of the list of essential services and industries. We understand that the ILO has offered technical assistance for a review of this list of essential services and industries and we encourage the Government to avail itself of this assistance while ensuring that it continues consultations with social partners on this issue.

Therefore, the Employers’ group would urge the Government to encourage the FTUC to re-engage with the JIR process. We also urge the Government to ensure that the invitation for candidatures for public office are sent widely, including to the FTUC, so that the widest pool of suitable candidates may be identified and considered. We also urge the Government to review its position on the Political Parties Decree to the extent that simple membership of a political party may not be grounds for punitive action, focusing instead on the consideration of the regulation of political activities while an individual is in public office. Finally, the Employers’ group urges the Government to accept technical assistance from the ILO to complete its review of the essential services while continuing true and genuine consultation with the social partners.

Worker member, Fiji – 1 May is a very special day for workers the world over. That is the day where workers celebrate struggles over the decades. In Fiji, 1 May this year, some 2,075 workers were summarily terminated; 29 workers were arrested for simply being on union property for unlawful assembly and jailed for two days and charged by police; trade union leaders who dared to speak up for workers were arrested and jailed for two days; union offices were raided by police and staff and members were threatened and intimidated by police in riot gear. This summarizes the state of our democracy and the atmosphere in which trade unions and workers work in Fiji. The Government’s response in defence of its actions – it attempts to rely on the Public Order Amendment Decree which was imposed by the military Government and violates human and trade union rights.

In March 2015, the tripartite partners signed a JIR in the presence of the Director-General of the ILO. The Government of Fiji agreed to address all of the 33 issues identified by the Committee of Experts in 2015, which were bundled together under the labour law review process. This JIR was signed only the night before the Governing Body meeting was due to take place on the Fiji case and averted the decision for a Commission of Inquiry into Fiji under article 26 of the ILO Constitution. While the Government addressed some of the issues, labour law review and the essential services listing remained outstanding. Since then, no progress has been made despite a further contacts mission in 2016 where a second JIR was signed. The same commitments were given by the Government of Fiji. On the contrary, the Government unilaterally continued to impose the open merit system to assess workers’ performance and made it a condition of employment for workers to sign these individual contracts, more particularly for civil servants, government-owned entities and all those industries that the Government had redefined as essential services, including banks, airlines and local government workers. These contract periods were anywhere from three months to three years. In most government-owned entities, blue collar workers were only given three-month contracts which would be renewed every so often after a week’s break to deny workers their minimum entitlements. This effectively meant that while the Essential National Industries Decree was repealed, the same conditions intended by the Decree continued thus denying workers freedom of association and unions the right to collective bargaining and reducing union density and coverage. Existing collective agreements that were in existence at the time of the imposition of the Decree and which were made invalid by the Decree have not been reinstated despite the Committee of Experts’ request. The Government’s explanation that they have been replaced by new negotiated collective agreements is simply not true. There have been no negotiations on collective bargaining except for the timber industry. We do not see any valid reason why the collective agreements that existed prior to the Decree cannot be reinstated. They were negotiated and agreed to after all. We are dealing with issues that the Committee dealt with for over seven years. On every occasion, we have had the Government’s undertaking that they would completely respect workers’ rights and address the violations. Yet little has been done and in fact the situation has actually worsened. The Government’s inaction and disregard for the decisions of the Committee has amounted to wasting the valuable time of the Committee. We would like to see the Government of Fiji behave more responsibly and take seriously its commitments to the Committee.

I would like to address some of the issues that have not been implemented. The labour law review which is part of the JIR which the Government has not honoured till today. This was to address 31 issues that the 2015 and 2016 Committee of Experts had asked the Government to act upon and to ensure compliance with all core Conventions. The violations are again listed in the most recent report of the Committee of Experts. The list of essential industries was also part of the JIR. The parties had agreed to act upon this. What we find is that it is only now, just before this meeting, that the Government has actually requested technical assistance from the ILO to address this issue.

The report cites the Public Order Amendment Decree and had urged the Government consistently to address violations. This Act gives sweeping powers to the police and the Commissioner of Police to deny any form of protest or assembly in either public or private places and to arrest and charge any persons. The Act defines terrorism as any person who attempts or incites any action that would either damage or potentially damage the economy or cause unrest. The penalty for this is life imprisonment. Because of this, unions cannot undertake any strike or protest action. In this respect, more recently the FTUC had made four applications to organize peaceful marches in protest against the violation of workers’ rights. These have all been denied by the police without providing any reasons. More recently, on 30 April, the General Secretary of the Nurses’ Union and the General Secretary of the Fijian Teachers Association and a union organizer were arrested and detained for 48 hours. On 1 May, I was arrested and detained for 48 hours and questioned about the protests and marches that the FTUC had planned. On the same day, 29 other members of the National Union of Workers who were terminated by the Water Authority of Fiji were arrested on union property for alleged unlawful assembly and charged under the Public Order Amendment Act. Strict bail conditions were imposed including a curfew from 6 p.m. to 6 a.m. and a travel ban. On 1 May, the workers of the Water Authority were summarily terminated with the employer citing that the contracts had come to an end. The police intervened and guarded the entrance to the workplace and disallowed workers from entering the premises. On 1 and 2 May, the National Union of Workers and FTUC premises were raided by the police, and documents and electronic equipment including files, computers and mobile phones were confiscated. My computer and phone have not been returned to me until today.

The report also questions the powers of the Registrar of Trade Unions. This has been well covered by the spokesperson for the Workers. On the Political Parties Decree, I also do not see the need for me to elaborate on that other than to state that a trade union officer is not a public official. Trade unions are membership-based organizations and it is the membership that actually pays for the running of the trade union and it is not paid by the Government at all. We do not believe that trade unions should be classified as public offices, quite apart from the fact of denial of our fundamental rights and not partaking in the political process of the country.

The Committee of Experts has consistently called on the Government to allow prison officers to join or form unions. Currently, prison officers are not allowed to exercise their freedom of association. The Government stubbornly continues to refuse prison officers this right.

As to the long-standing 26 year-old strike by Vatukoula Gold Mines, we recall that the Government had presented an elaborate plan for the mineworkers in 2016 before the Committee. I note that the Government’s current position has changed totally where they claim no responsibility or liability for mineworkers at all.

Workers in Fiji work under a cloud of fear. Their jobs are insecure, unionists are unable to carry out their legitimate activities. Tripartism in Fiji is dead and this includes all the tripartite bodies where the workers had traditionally been represented. I would just like to say that we note that the Government’s response is that the appointments are made according to law. What the Government has omitted to tell the Committee is that the laws that they refer to were amended by this very Government more recently where they have excluded the workers’ and the employers’ representatives. We note that the Government has referred to recent meetings which were initiated by the ILO Suva Office to explore the way forward for the social partners. The partners and the ILO had agreed that these meetings would be informal and that no party would refer to these meetings or publicize them. Obviously, the Government has not kept its part of the deal, as usual. This now puts the social partners in a more difficult situation for further discussions.

Lastly, the Government of Fiji continually attempts to demonize the trade union movement in Fiji and its officers. Most recently, the Prime Minister and the Attorney-General publicly called unions irrelevant. They have removed unions from tripartite bodies and imposed precarious and insecure working conditions that violate workers and trade union and human rights. Yet they come to the Committee and applaud decent work, social dialogue and tripartism. This hypocrisy has to stop.

Employer member, Fiji – The Fiji Commerce and Employers Federation enjoys a very healthy working relationship with the social partners. This relationship is built on sound respect and good faith in each other. The Federation has and continues to play a mediator role between the Government and the FTUC, and this was seen as evident in 2015–16 when we had article 26 hanging over our heads. Like the trade union movement, the Fiji Commerce and Employers Federation enjoys full rights to organize and bargain and carry out its legitimate functions. The Fijian Constitution again guarantees all employers the right to freedom of association.

I just want to make a comment on the JIR. I would like the Committee to note that out of the nine issues that are on the table, we have achieved seven. There are only two outstanding items left, that being the review of the list of the organizations under the Essential National Industries Decree and the review of the Employment Relations Act. This current process has begun. I have been sitting in meetings where we have discussed this – although on an informal basis we have sat. The fact is that we need to get this done before the Governing Body meeting in November and I will urge the Government to ensure that the parties meet well before that to ensure that we have these two items addressed and done away with. It is important that we take this on board because the Fiji Commerce and Employers Federation was a signatory to the JIR and we are serious about our commitment in this area.

It was very unfortunate that in our presence the National Secretary of the FTUC was detained and arrested. It happened at a time when we were just about to come to an agreement on the way forward in relation to the JIR. I personally hope that the FTUC will come back to the table, come back to the bargaining table and reconvene with the social partners and let us carry on where we left off. There is an opportunity for that and we should not lose it. There was a lot of goodwill displayed in our first meeting where we managed to get to quite a bit of work on the areas relating to the labour laws. There are 376 articles or clauses we have to go over, so the task is cut out for us to achieve that, and the Employers will be there to assist wherever we can and we will take full participation in ensuring that we achieve this. We request that the social partners come to us at the table where we can discuss this. We have much to lose if Fiji goes into a Commission of Inquiry, Employers, as we are seen to be sort of the meat between the sandwich in these cases.

The Employers agree that a lot can be done by the Government in ensuring that when we agree to timelines for meetings that these meetings do take place, and that minutes are kept and that all social parties are told of this. The Employers are not concerned about the make-up of the ERAB or any other body. We are concerned with outcomes. What we can do to achieve an environment where everybody can live in harmony and all the laws relating to the ILO are kept in sync with our obligations.

In conclusion, all I want to say is that there has been a lot of goodwill shown of late. I am sitting here, I sometimes wonder whether if I am still sitting in the same country as the speakers are saying, because I am sitting at the meetings and I know for sure that there is a lot of goodwill being displayed and we need to carry on with that goodwill and the spirit of that goodwill in ensuring that the JIR is achieved. The other aspects will be covered when we manage the areas where we deal with labour law, the areas that have been raised, and I am sure that we can achieve this, come the next Governing Body meeting.

Government member, Romania – I am speaking on behalf of the European Union (EU) and its Member States. The Candidate Countries, the Republic of North Macedonia, Montenegro and Albania as well as the EFTA country, Norway, member of the European Economic Area, align themselves with this statement.

We are committed to the promotion of universal ratification and implementation of the eight fundamental Conventions as part of our Strategic Framework on Human Rights. We call on all countries to protect, promote and respect all human rights and labour rights and we attach the highest importance to freedom of association and the right to organize. Compliance with the Convention and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), is essential in this respect.

As signatories to the Cotonou Agreement, the EU and Fiji have agreed to a comprehensive, balanced and deep political dialogue, covering human rights, including labour rights, as a pre-condition for sustainable development, growth and poverty reduction. The fourth enhanced EU–Fiji High-Level Political Dialogue under article 8 of the Agreement on 20 May reiterated the centrality of promotion of access to justice and respect to human rights. Fiji and the EU also cooperate through the Economic Partnership Agreement applied since July 2014 which commits parties to supporting social rights.

We note with regret the observations of the Committee of Experts’ report on Fiji’s implementation of the fundamental Convention. It is particularly worrying to see insufficient progress in implementation of the JIR signed by the national tripartite partners in January 2016 to avert establishment of the Commission of Inquiry. We also express deep concern over allegedly continuing harassment and intimidation of trade unionists, as well as violations of fundamental human rights. We urge the Government to provide updated information in this regard.

We also note with regret that the ERAB established to review the labour laws as agreed under the JIR has not created an environment conducive to dialogue and trust between employers, workers and the Government. In view of the Committee of Experts’ observations, we urge the Government, in line with the Convention, to fully recognize the role of representative national workers’ and employers’ organizations in determining representatives on national bodies, such as the ERAB and to refrain from any interference in this process.

We also note with regret that we have seen insufficient progress on the legislative changes required to bring the legislation into conformity with the Convention as agreed in the JIR, including the labour legislation, as well as the Employment Relations Amendment Act from 2016, the latter in particular in relation to excessively wide discretionary power of the Registrar and the denial of the right to organize to prison guards.

Similarly, as agreed in the JIR, we note with disappointment that the Government has not taken measures to review numerous provisions of the Employment Relations Promulgation. Revision of the list of essential services developed under the Employment Relations Promulgation has still not been determined in any way, agreed in the JIR, delay which is surprising given the possibility of the ILO’s technical assistance. We call on the Government to take all the necessary measures to review the above-mentioned provisions of the ERP, in accordance with the agreement in the JIR and in a tripartite manner so as to bring the legislation into full conformity with the Convention.

We also note with regret that the application of the Public Order Amendment Decree with regard to the free exercise of the right to assembly is not in line with the Convention. We therefore urge the Government to take the necessary measures to bring section 8 of the Public Order Amendment Decree into line with the Convention.

We also draw the attention of the Government that, as indicated by the Committee of Experts, the provisions of the Political Parties Decree are unduly restrictive in prohibiting membership in a political party or any expression of political support or opposition by officers of workers’ and employers’ organizations. We request the Government to take measures to amend, in a tripartite manner, the above provisions. The EU and its Member States will continue to support Fiji in these endeavours.

Government member, United States – In January 2016, the tripartite signing of the JIR brought the worker-filed article 26 complaint to an end. The JIR provides the tripartite participants with a framework to address labour issues in the country. Three years after the signing of this important agreement, the Government has yet to fully implement key provisions of the JIR. Specifically: the Government has not yet amended the labour legislation; in the two years between the JIR signing and the mid-2018 withdrawal of workers’ representatives, the ERAB did not complete the review of the labour laws or prepare any amendments, and workers have had difficulties in conducting legitimate union activities, including organizing demonstrations, holding meetings, and resolving disputes.

We are troubled by reports of harassment and intimidation against trade unionists, including recent reports by the ITUC of arrests, detention and criminal prosecution of trade unionists in Fiji for acts related to trade union work. We have also seen a deterioration of social dialogue. We urge the Government to take all measures necessary to implement the JIR, specifically: to reconvene the ERAB to review labour laws, including the relevant provisions of the Employment Relations Promulgation; determine the list of essential services and industries in collaboration with the ILO and the social partners; amend the Political Parties Act to ensure it is not overly restrictive in prohibiting membership in a workers’ or employers’ organization; and ensure that workers’ and employers’ organizations can exercise freedom of association in a climate free from intimidation.

We call on the Government to take all necessary measures to implement its commitments made in the 2016 JIR and comply with its international labour obligations, including to work with the ILO and the social partners.

Worker member, Australia – When the National Secretary of the FTUC was arrested by police on 1 May, the Fiji Commissioner of Police said that if he wanted to understand the reasons for his arrest he should read the Public Order Act. We want to take up the Commissioner’s invitation, we want to expose this law and its impact on rights of association in Fiji to the scrutiny of the Committee. Under this Act, anyone who wants to organize a meeting in a public place must apply to the authorities, seven days in advance, for a permit to do so. A public place includes all buildings that are not private dwellings. The authorities have a wide discretion to refuse a permit because the meeting would “prejudice the maintenance of peace or good order”. Even if a permit is issued, the Minister can override it. There is no express right to appeal a decision to refuse a permit. If a meeting takes place without a permit, the organizers face possible imprisonment for up to five years. Police have the power to arrest and detain, without charge, anyone they think is about to breach the Act. Those organizing or inciting an unlawful meeting also face possible imprisonment. Furthermore, the Public Order Decree defines “terrorism” to include any act that involves serious disruption to critical infrastructure – itself broadly defined – done with the intention of advancing an ideological cause. How does this law operate in practice? Earlier this year, the FTUC applied for a permit to assemble in Nadi on 3 May. On 29 April, the police arrived at the Fijian Teachers Association and ordered 13 officials to report to the police station for questioning about the protest. They were questioned for about four hours and released. On 30 April, the general secretaries of the Fiji Nurses Association and the Fijian Teachers Association were detained and questioned for 48 hours by police. Separately, when the Fiji Water Authority terminated 2,075 workers on 25 April, the union filed a motion in the Employment Tribunal to stop the terminations. The workers went to work on 1 May. At worksites across the country, they found armed police in riot gear at the gates threatening them with arrest and ordering that they not enter or assemble at the gate. In Lautoka, workers were chased from their workplace. They gathered on union premises. The police forcefully entered and dispersed them despite being told that it was private property – 29 workers refused to go. They were charged with unlawful assembly and jailed for 48 hours. In Suva, police in riot gear entered FTUC property and threatened workers with arrest. Members were told not to do “live broadcasts” or social media posts on the issues faced by the terminated workers. The office of the FTUC was surrounded by police in trucks and police in riot gear for three days. While ever these laws remain on the statute books, freedom of association does not exist in Fiji. The effectiveness of Fijian industrial laws can be completely overridden by laws that criminalize ordinary industrial conduct.

Government member, India – We thank the Government of Fiji for providing the latest comprehensive update on this issue. India appreciates the high-level commitment of the Government of Fiji to fulfil its international labour obligations especially those related to the Convention by engaging with its social partners in the spirit of social dialogue and tripartism including on the way forward to implement the outstanding matters in the JIR of 2016 based on a timeline. It is noteworthy that the Constitution of Fiji itself guarantees all workers the right to freedom of association, the main object and purpose of the Convention.

We welcome the positive steps taken by the Government of Fiji in response to the observations made by the Committee of Experts including measures to undertake a progressive review of the domestic labour laws through tripartite consultations. It may be needless to add that such efforts of the Government would be in accordance with the specific national contexts and aligned with its socio-economic priorities.

We take positive note of the ILO’s offer to provide necessary technical assistance, as required and requested by the Government of Fiji. In fulfilling its labour-related obligations, we request the ILO and its constituents to continue to fully support the Government of Fiji and provide further assistance that it may seek in this regard.

Lastly, we take this opportunity to wish the Government of Fiji all success in its endeavours.

Worker member, United Kingdom – Among many duties, it is the job of trade unions to critique government policy – be those governments friendly, indifferent or hostile to those unions. It is hard to discuss issues of economic models, social policy and trade union rights without considering the role of politics in shaping them. It is a glib and easy accusation to make by any government that criticisms are “political”, but it is more insidiously effective if it accompanies the possibility of legal sanction and even, as we have heard, violent suppression. The restraints on political freedoms placed on union leaders, as applied by the Government of Fiji, place unacceptable limits on their activities in servicing the interests of the union and its membership. As the Committee of Experts said in 2015: “Provisions imposing a general prohibition on political activities by trade unions or employers’ organizations for the promotion of their specific objectives are contrary to Convention No. 87.”

All our societies benefit from politicians with world-of-work experience, be it as worker, employer or, in many cases, both. Silencing voices from unions and employer associations muffles expert and representative criticism and removes some of the most engaged groups from vital political discourse. Equally, it may deny the associations of the social partners the possibility to benefit from the service of people dedicated to ambitious societal change if they have to make a difficult choice between helping some workers and businesses, or helping all workers and businesses. This unnecessary choice not only inhibits democracy, but constitutes very real interference in the independent running of our organizations, in defiance of the Convention. Perhaps if the Government had more members who had previously been active trade union or employer representatives, it would not make such an unfortunate mistake. This choice is not just hypothetical, it is one that Fijian trade unionists have to make all the time, with many examples of trade union officials having to make the hard decision of whether to give up their posts to engage in campaigning or stand in elections.

The Government has defended itself on the basis that it also enforces the political neutrality of public officials. Trade unionists are not public officials unless, of course, they are in a trade union for public officials. Previous ILO cases have made a clear distinction between trade unionists and public officials, such as Committee on Freedom of Association Case No. 2355. By definition, trade unions and employer associations have members, and they work on behalf of and represent those members. Yes, that membership, and the democratic structures that go along with that, give us the legitimacy to advocate on behalf of the public good and on the wider world of work, but we remain – or certainly should remain – distinct from and wholly independent of government. By contrast, most definitions of public officials include some element of direct state control or ownership, something completely unacceptable for trade unions, as laid out in ILO standards. For as long as the Government fails to grasp this, it will fall into the trap of attempting to control and assimilate unions in defiance of the Convention. Besides, this dedication to policing the worlds of unions and government only seems to work one way. While trade union leaders are forbidden from expressing opinion about the government during elections, government is empowered by law to vet trade unionists’ right to stand in their own elections, with those ballots then run by government officials. This is not only a clear breach of the Convention, but it is also rank hypocrisy. This lack of trust in union democracy undermines not only the application of the Convention, but hinders the functioning of tripartism and social dialogue, core principles of not only ILO membership, but also of sound economic management.

Observer, Public Services International (PSI) – I speak on behalf of the PSI and the International Transport Workers’ Federation. The violation of trade union rights are being perpetuated in all areas across the Fijian public service which has been brought under essential services to undermine their right to collective bargaining. Therefore, all disputes of interest are referred to the Arbitration Court which is then referred to the Minister for Employment for compulsory conference under sections 191(S) and 191(T) which the Minister chairs to settle that dispute. It is ironic that a pay rise claim by a public sector employee, where the Minister is required to mediate, has a clear conflict of interest but the Employment Relations (Amendment) Act 2015 allows this process. The right to industrial action is not allowed in the public service by law which was enforced through the Employment Relations (Amendment) Act No. 4, 2015. This is contrary to the core labour standards of the ILO and the Fiji Government’s approach to industrial relations remains obstructive and defiant. Provisions of the Essential National Industries (Employment) Decree have been incorporated into the Employment Relations Act, 2007, and this has taken away the collective bargaining rights of the workers; airports and related services have been classified as essential services. For example, in March this year, the Arbitration Court ordered the Fiji airport air traffic controllers (ATC) to return to work and to end their protest. Soon after the decision of the Court, the Executive Chairman of the company suspended 22 ATC staff in absolute defiance of the Court order. The provisions of the Arbitration Court require immediate amendments to make it workable and a full-time chairman of the Court be appointed to avoid backlogs which has been hibernating in the system for years. This is an urgent issue as justice delayed is justice denied.

The amended Essential National Industries Decree 2014 as a transitional condition terminated the collective agreement and required negotiations between ATC staff and Airport Fiji Limited of a new contract between the parties. To date, the ATC officers do not have a formal contract and none of them has seen the company’s HR policy under which four licensed air traffic controllers have been dismissed. The Government’s failure to give compensatory guarantees for workers deprived of the right to strike has led to the extreme dire outcomes of the workers. In another twist, the Fiji Revenue and Customs Services is a statutory authority informing its employees that they are not allowed to discuss the terms and conditions of their contract with a third party which is the union and the union has a registered collective agreement with the statutory authorities. This a blatant violation of the Convention. The list goes on.

The job evaluation exercise as a public service has been used to convert all tenured employees to individual contract appointment which has no correlation to convert tenured employees to compulsory contract appointment. The oppressive clauses in the fixed-term individual contract are brutal: renewal of the contract is at the absolute discretion of the Government; civil servants to agree irrevocably that non-renewal will not be challenged; renewal subject to the Government requiring services; and the Government has the right to change the contract at any time.

The Confederation of Public Sector Unions is trying from 2017 to register itself as a federation under section 147(A) of the Employment Relations (Amendment) Act and the Government is obligated under Articles 2, 3 and 4 of the Convention to allow the workers their right to affiliate with the organization of their choosing. Section 147A of the Employment Relations (Amendment) Act is a window dressing and it must be amended.

The Confederation calls upon the Government to: restore the jurisdictional power of the Public Service Commission as a central personnel authority of the public service, thus empowering the Commission to negotiate claims and terms and conditions on behalf of all the government ministries for all public servants in uniformity and in accordance with the provisions set out in the Employment Relations Promulgation 2007; immediately arrange an exploratory meeting with the Confederation of Public Sector Unions to devise a workable module for a bipartite system for mutual cooperation, respect, dialogue and collective bargaining; and finally, the acceptance and adoption of the concept suggested above will clearly indicate the endorsement of fundamental values of the relevant provisions of the 2013 Fiji Constitution which includes guarantees for the rights and benefits of the workers and trade unions in addition to the human rights and social values contained in the 2013 Constitution.

Worker member, United Kingdom – I am Shannon James, President of the Bermuda Union of Teachers, which also celebrates 100 years this year and I will be presenting some of the education unions’ concerns in Fiji. I will be speaking on behalf of Education International and the Fijian Teachers Union.

The first concern relates to the Essential Service Decree which states that educators are an essential service. While we all agree that education is essential, the Committee on Freedom of Association of the Governing Body of the ILO has repeatedly stated that the education sector does not constitute an essential service. The second concern has to do with the reforms imposed without involvement of the teachers’ unions. Such reforms have a direct negative impact on education workers. Teachers are also blackmailed to sign individual contracts without the collective bargaining processes. The third concern is related to the unfettered powers given to the Permanent Secretary of the Ministry of Education to impose disciplinary guidelines. The Permanent Secretary has unlimited powers to terminate or force contracts and impose transfer policy. This practice has resulted in the following: families being separated, marriages not consummated for up to one year, and teachers having to forfeit acting positions to move. The last concern deals with the denial of holding protests. The Permanent Secretary of Labour refused to supervise the conducting of a strike ballot as required by law. Applications for permits to participate in marches and rallies to protest are denied on a constant basis without a reason given. Union members are threatened against participation in legitimate union activities, even in the school holidays. I have faith that the Committee will issue supportive recommendations.

Worker member, Pakistan – Essential services, according to ILO standards, are services which deal with life, health and public safety matters. The ILO defines “essential services” as services whose interruption could endanger the life, personal safety or health of the population. Schedule 7 of the Employment Relations Act 2007 of Fiji lists some of those services that are not classified as essential services in the strictest terms as essential services. The list of (a) to (p) – 16 entities – is severely restrictive and generalized and the Fiji unions are not in agreement with it. We believe that this list is the weapon which the Government is using to stifle legitimate union activities like organizing demonstrations, holding meetings and resolving disputes, making it difficult, if not impossible. This list includes sectors or industries that are interpreted as sectors that are “essential to the economy” as decided by the Fijian Government. The amendment in 2015 of the definition of essential services states that essentials services and industry means a service that is listed in Schedule 7 of the Employment Relations Act and include those essential services designed corporations and companies which had no connection to essential services. Another amendment, section 188, stated that the trade disputes in essential industries shall be dealt with by the Arbitration Court and that the Employment Tribunal and Employment Court under Part 20 shall not have any jurisdiction with respect to trade disputes in essential services. The Minister has the right to refer any such dispute to the Court, however compulsory arbitration can only be imposed at the request of both parties. The preferences here would be for a neutral party such as the Court to decide whether the strike and the State, in case of essential services, will obviously have a conflict of interest. Therefore, we request for Part 180 to be amended in line with the Convention. However, before any such action is taken, the requirement for our mediation services should be considered as the primary remedy once the intention for a strike or lockout is given. Hence the Permanent Secretary must ensure that mediation services are provided as soon as possible to the parties for the purpose of assisting the parties to avoid the need for strike or lockout. This did not eventuate in recent cases in Fiji which led to longer delays of strike action or lockout which never is allowed in Fiji. The definition and list as per Schedule 7 come with heavy restrictions and the combined effect of sections 169, 170 and 181, Part (c), is also an attempt to make strikes difficult to hold, if not impossible, for essential services. The requirement of a secret ballot is not disputed, but 50 per cent of the vote of all members entitled to vote? This quorum or majority required makes the exercise of this right very difficult and only a simple majority of votes, of the votes cast, must be allowed in Fiji. This is where the Government adopts tactics to restrict the freedom of the assembly. The Government of Fiji also does not respond to the request for supervising the secret ballot and hence the results are communicated to the Ministry of Employment, which refuses to accept its legitimacy and thus leading it to declare a strike as illegal.

In concluding, we, the Worker representatives propose that Schedule 7 is to be consistent with the ILO interpretation and list; that the Government make a commitment to review the list with ILO technical advice; that the restriction on Fijian unions that prohibits them from exercising their basic right to freedom of assembly be immediately amended.

Government representative – I would like to thank all persons who have spoken in this room about this matter. Most of the issues raised have been addressed in my opening statement so I will not be repeating it. With regards to other issues raised, my final comments are as follows.

With regard to the timelines for the review of the labour laws, pursuant to the JIR, I wish to draw to the Committee’s attention that we have been having discussions on this issue with Mr Anthony and we have written to Mr Anthony and have proposed timelines. In an email on 31 May 2019 to the National Secretary of the FTUC, the Ministry suggested a proposed timeline. The timeline set out proposed dates from 1 April to 6 September encompassing: the continuation of tripartite dialogue on the agreed clauses of the Employment Relations Promulgation matrix; time for the Ministry to prepare submissions and submit for legal drafting to the Solicitor-General’s Office; the legal drafting process; ERAB meeting on the review; and finally for the presentation to Parliament between 4 and 6 September 2019. Therefore, the Government has proposed a timeline to the FTUC and we are still waiting for a response.

In response to the long-standing Vatukoula Gold Mines strike 29 years ago, this matter was before the courts as a result of the Permanent Secretary accepting a report of a trade dispute from a group of workers of the Vatukoula Gold Mines. The High Court held that the Permanent Secretary did not have the powers to accept that report. In a separate case, the Fijian High Court held that the termination of the 364 workers was lawful. The Fijian Government is, therefore, not legally obliged to compensate the workers but is considering whether to grant compensation to the 364 workers involved in the 1991 strike.

A review of the national minimum wage, including an analysis of the economic and social impacts of the implementation of the national minimum wage, has been undertaken by my Ministry. A consultant has been currently engaged to continue and undertake a nationwide survey with a view of presenting a report to the ERAB.

In response to the arrest of union workers, I wish to reiterate that the Commissioner of Police is an independent office holder, appointed under the Constitution, who acts in accordance with the rule of law. The Commissioner of Police does not come under the control of my Ministry. The Commissioner of Police’s decision to deny or allow a march is also independently made and only on the basis of threats to public order.

In response to the imposition of individual contracts, the Fijian Government had undertaken a job evaluation exercise of its employment positions in 2017. This exercise included the broad bending of positions and benchmarking to the private sector to decrease administration, streamlining salary management and providing attractive and competitive salaries across the civil service. During the job evaluation exercise, the Fijian Government consulted and discussed the proposed changes to the salary structure with public sector unions. Following the job evaluation exercise, new employment contracts were offered to all civil servants in August 2017 to reflect the new working conditions and ensure consistency across the civil service. However, some civil servants opted to remain as permanent employees and therefore did not sign the new contracts. Employment contracts were introduced into the Fijian civil service in 2009. Prior to the 2017 job evaluation exercise, about 74 per cent of civil servants held employment contracts. To date, 99 per cent of civil servants hold employment contracts.

I very much appreciated the views expressed by the Employer representative from Fiji, Mr Hazelman, that there is goodwill among the parties. We have achieved seven of the nine outcomes of the JIR and full implementation is achievable. The Government is committed to the process and the outcome and we, again, invite the FTUC to join us in this important journey.

In conclusion, we also wish to draw to the Committee’s attention that the issues being raised today are a small portion of the overall reforms that the Fijian Government has adopted in order to improve the lives and welfare of all workers and their families. We have free education, bus fares for children. Persons with disabilities and the elderly are heavily subsidized. Furthermore, access to medicine and medical services is also heavily subsidized. The Government is committed to the modernization of infrastructure and has implemented many reforms that directly impact the welfare of workers. The Fijian Government has also implemented new provisions on paternity leave, family care leave for the first time and we have also provided financial assistance to mothers who have given birth. These are family-friendly provisions aimed at improving the status of workers and their families, and is also designed to guide the acceptance of the changing role of fathers and mothers in the family. These reforms affect the welfare of every worker and decrease the burden on the worker’s salary and wage packages. Therefore, I would like to say that the matters raised in this hearing should be seen in the context of the enormous reforms adopted and pursued by the Fijian Government, and I ask that this be reflected in the report of the Committee.

Employer members – I would like to thank the distinguished Government delegate for his submissions to the Committee this afternoon. We welcome the Government’s representations that it is committed to both the process and the outcome in respect of the JIR process. We also are encouraged by the Government’s indication that it has taken measures to welcome the FTUC to re-engage and participate in the remaining elements of the JIR process. Therefore, the Employers’ group believes that it is important to encourage the Government to continue to invite and engage in good faith the FTUC to re-engage with the remaining elements of the JIR process. We also encourage the Government to complete the work of the JIR process including reaching an agreement on essential services in consultation with the social partners before the November Governing Body session. In this regard, we encourage the Government to accept ILO technical assistance to complete the review of the essential services issue. We also request that the Government ensure that invitation for candidates for public office are sent widely, including to the FTUC so that the widest possible pool of suitable candidates may be identified and considered. The Employers’ group also urges the Government to review its position on the Political Parties Decree to the extent that simple membership within a political party should not be grounds for punitive action or exclusion otherwise. We are encouraged by the Government’s submissions today and would encourage it to engage with the social partners to continue the social dialogue which has been taking place, but to do so on a full manner and to continue to accept the ILO technical assistance in this regard.

Worker members – The discussion of the application of the Convention has exposed very serious violations against the right of workers to freedom of association in Fiji. It has demonstrated that despite the adoption of the JIR, violations in law and in practice have relentlessly persisted. The closure of the article 26 complaint was premised on progress achieved within the framework of the JIR, including the revision of the labour laws. We once again express regret over the absence of sufficient progress in this regard. While some matters have been dealt with, progress on the most significant areas and, in particular, the reform of the legislation, remain outstanding. The restrictive provisions of the Employment Relations Promulgation remain intact. As outlined in my opening speech, these provisions include:

- the denial of the right to associate for prison workers;

- excessively wide discretionary powers afforded to the Registrar preventing workers from forming trade unions without previous authorization;

- limitations to the exercise of rights of non-citizens; and

- the criminal sanctions imposed on peaceful strike action.

We urge the Government to swiftly amend its legislation in order to bring it into line with the Convention.

The Political Parties Decree remains problematic and restricts trade unions from undertaking legitimate trade union activities. Therefore, this piece of legislation must be amended without any further delay. Moreover, we have discussed the increased use of the Public Order Amendment Decree to interfere in, prevent and frustrate trade union meetings and assembly. Section 8 of the Decree provides the authorities with the discretion to refuse and grant permits on excessively wide and unjustified grounds and therefore violates the Convention. It is very clear that Article 3 of the Convention protects the right of workers’ and employers’ organizations to organize their affairs, including their activities and programmes, in a manner to advance the economic and social interests of workers. The supervisory bodies have long held that this protection under Article 3 covers the right to assembly, the right to organize trade union meetings and to protest. Therefore, any attempt by the Government to restrict these rights to make their exercise meaningless evades their obligations and violates the Convention. We have called on the Government to address these concerns within the context of the JIR and must demonstrate sufficient progress to the Committee of Experts at its next sitting.

We are deeply concerned that the Fijian Government is manipulating national tripartite bodies in order to undermine the effective representation of workers’ and employers’ organizations contrary to the Convention. This does not only prevent trade unions from exercising their functions but also curtails the possibility of having genuine tripartite dialogue. We disagree with the position expressed by the Employers in this regard. As previously stated by the ILO supervisory bodies, it is only where workers and employers are able to freely nominate their members that we can speak of a genuine tripartite dialogue. Representatives cannot act in full independence if their nomination depends on the Government. This does, of course, not mean that there should not be any objective and transparent criteria for nominations. It is the discriminatory application of these criteria that we strongly disapprove of. It also comes as a surprise to us that the Employers defend this position in this case, when they argued the exact opposite in a case we discussed just ahead of Fiji.

We call on the Government to swiftly return to the full implementation of the JIR. The FTUC is at all times ready to participate in tripartite discussions in this regard. However, we must now see that there is time-bound action in order to give credibility to the discussions held, and we must see that unions can participate without fear of arrest. Given that the progress on the implementation of the JIR is stalled and that there are very serious new violations of the Convention, we call on the Government to accept a high-level ILO mission to the country.

Conclusions of the Committee

The Committee took note of the information provided by the Government representative and the discussion that followed.

The Committee observed serious allegations concerning the violation of basic civil liberties, including arrests, detentions and assaults and restrictions of freedom of association. The Committee noted with regret the Government`s failure to complete the process under the Joint Implementation Report.

Taking into account the discussion, the Committee calls upon the Government to:

- refrain from interfering in the designation of the representatives of the social partners on tripartite bodies;

- reconvene the Employment Relations Advisory Board (ERAB) without delay in order to start a legislative reform process;

- complete without further delay the full legislative reform process as agreed under the JIR, the Joint Implementation Report;

- refrain from anti-union practices, including arrests, detentions, violence, intimidation and harassment and interference;

- ensure that workers’ and employers’ organizations are able to exercise their rights to freedom of association, freedom of assembly and speech without undue interference by the public authorities; and

- ensure that normal judicial procedures and due process are guaranteed to workers’ and employers’ organizations and their members.

The Committee requests that the Government report on progress made towards the implementation of the Joint Implementation Report in consultation with the social partners by November 2019.

The Committee calls on the Government to accept a direct contacts mission to assess progress made before the 109th Session of the International Labour Conference.

Government representative – We welcome the report of the Committee and thank the Committee for giving us an opportunity to share Fiji’s priorities and concerns in relation to the methods being considered before this Committee. We appreciated the honest, forthright and constructive nature of the dialogue with our partners and we can assure the Committee of Fiji’s respect for its obligations on core ILO Conventions ratified. We undertake to further the social dialogue with our partners and we reiterate our commitment under the Joint Implementation Report and we will provide progress made as required by the Committee.

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

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.

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments.

Repetition

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government and the social partners this year, as well as on the basis of the information at its disposal in 2019.

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2019 and 15 September 2020 and of the Fiji Trades Union Congress (FTUC) received on 23 May and 13 November 2019, denouncing violations of civil liberties and lack of progress on the legislative reform. The Committee notes the Government’s general reply thereto, as well as to the 2017 and 2018 FTUC observations, and requests it to provide further details on the specific incidents of alleged violations of civil liberties reported by the FTUC.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 108th Session, June 2019)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards (hereafter the Conference Committee) in June 2019 concerning the application of the Convention. It notes that the Conference Committee observed serious allegations concerning the violation of basic civil liberties, including arrests, detentions and assaults, and restrictions of freedom of association and noted with regret the Government’s failure to complete the process under the Joint Implementation Report (JIR). The Conference Committee called upon the Government to: (i) refrain from interfering in the designation of the representatives of the social partners on tripartite bodies; (ii) reconvene the Employment Relations Advisory Board (ERAB) without delay in order to start a legislative reform process; (iii) complete without further delay the full legislative reform process as agreed under the JIR; (iv) refrain from anti-union practices, including arrests, detentions, violence, intimidation, harassment and interference; (v) ensure that workers’ and employers’ organizations are able to exercise their rights to freedom of association, freedom of assembly and speech without undue interference by the public authorities; and (vi) ensure that normal judicial procedures and due process are guaranteed to workers’ and employers’ organizations and their members. The Conference Committee also requested the Government to report on progress made towards the implementation of the JIR in consultation with the social partners by November 2019 and called on the Government to accept a direct contacts mission to assess progress made before the 109th Session of the International Labour Conference. While duly noting the context of the current COVID-19 pandemic, the Committee trusts that the direct contacts mission requested by the Conference Committee will be able to take place as soon as the situation so permits and, if possible, before the next International Labour Conference.

Trade union rights and civil liberties. In its previous comments, the Committee requested the Government to respond in full detail to the FTUC allegations of continued harassment and intimidation of trade unionists, in particular with respect to its National Secretary, Felix Anthony. The Committee notes the Government’s general statement that Mr Anthony has been able to organize and carry out trade union activities without any interference from the Government and that the arrest, search and detention of persons previously alleged by the ITUC and the FTUC were not intended to harass or intimidate trade unionists but to allow the Commissioner of Police to conduct investigations into alleged violations of applicable laws. The Government also affirms that the Commissioner of Police and the Office of the Director of Public Prosecutions are both independent and neither the entities nor their decisions are subject to the direction or control of the Government. The Committee notes, however, the 2020 ITUC allegations that Mr Anthony is currently charged with one count of malicious acts under the Public Order Act, 1969 in relation to his trade union activities following the mass termination of 2,000 workers’ contracts by the Fiji Water Authority in April 2019, which led to protests and the arrest of trade unionists and union members, including Mr Anthony. The ITUC alleges that Mr Anthony was to appear before the court on 1 September 2020 and if convicted, he could receive a fine of up to US$2,500 or be imprisoned for up to three years. The Committee notes the Government’s reply that the arrest and subsequent criminal prosecution of Mr Anthony are not a targeted attack but a matter that is criminal in nature and that the presiding court will make a determination on the criminal charges and penalties imposed, if any. The Committee further notes with concern the ITUC and FTUC allegations of continued intimidation by the police, arrests, detention, interrogation and the filing of criminal charges against trade unionists, as well as prolonged confiscation of personal and union property and violent dispersal of gatherings between April and June 2019. Recalling the interdependence between civil liberties and trade union rights and emphasizing that a truly free and independent trade union movement can only develop in a climate free from violence, pressure and threats of any kind against the leaders and members of such organizations, the Committee requests the Government to make serious efforts to ensure that state entities and their officials refrain from anti-union practices, including arrests, detentions, violence, intimidation, harassment and interference in trade union activities, so as to contribute to an environment conducive to the full development of trade union rights. The Committee requests the Government to consider issuing instructions to the police and the armed forces in this regard and to provide training to ensure that any actions taken during demonstrations respect the basic civil liberties and fundamental labour rights of workers and employers. Furthermore, the Committee firmly expects that any charges against Mr Anthony related to the exercise of his trade union activities will be immediately dropped.

Appointment of members to and the functioning of the Employment Relations Advisory Board to review labour legislation. In its previous comments, having observed the FTUC concerns that the Government had systematically dismantled tripartism by removing or replacing the tripartite representation on a number of bodies with its own nominees, the Committee requested the Government to provide detailed information on the manner in which it designated individuals to these bodies and the representative nature of the organizations that appeared therein. The Committee notes the detailed reply provided by the Government on the appointment of members to the ERAB, the Fiji National Provident Fund, the Fiji National University, the Wages Council and the Air Terminal Service (Fiji) Limited. The Committee also notes the Government’s clarification that, in addition to the ERAB, the National Occupational Health and Safety Advisory Board (NOHSAB) and the National Employment Centre Board (NECB) also have tripartite membership. The Government further indicates, with regard to the ERAB, that: (i) the Minister for Employment is the appointing authority and representatives of workers and employers are appointed from persons nominated by workers’ and employers’ organizations; (ii) appointment of members is undertaken through a consultation process to allow expanded representation of workers from various organizations; (iii) there is no interference from the Government in the designation of representatives of the social partners; and (iv) as the current ERAB membership ended in October 2019, the social partners were invited to submit nominees and both the Fiji Commerce and Employers Federation (FCEF) and the FTUC have already done so at the end of October 2019. The Committee observes, however, that, according to the FTUC, there is no indication as to when the appointment of ERAB members will take place, despite the urgency of the situation, and that the ITUC remains concerned about government manipulation of national tripartite bodies, thus curtailing the possibility of genuine tripartite dialogue. The Committee trusts that the Government will refrain from any undue interference in the nomination and appointment of members to the ERAB and to other tripartite bodies, and will ensure that the social partners can freely designate their representatives. The Committee expects the appointment of ERAB members to take place without delay so as to allow this mechanism to reconvene and meet regularly in order to pursue the labour law review and meaningfully address all outstanding matters in this regard.

Progress on the review of labour legislation as agreed in the Joint Implementation Report. The Committee previously noted with regret the apparent lack of progress on the review of the labour legislation as agreed in the JIR and urged the Government to take the necessary measures with a view to rapidly bringing the legislation into line with the Convention. The Committee notes the Government’s indication that several meetings took place with the tripartite partners and the ILO between June 2018 and August 2019, in which it was agreed that a number of matters under the JIR have already been implemented and that the tripartite partners are making good progress on the outstanding matters concerning the review of labour laws and the list of essential services and industries, despite the FTUC’s boycott and withdrawal from the tripartite dialogue within the ERAB in June 2018, February and August 2019. The Committee notes that, according to the FTUC, the Government’s reference to boycott clearly reveals that there remain issues in the appointment process of ERAB members and shows the Government’s lack of genuine commitment to previously agreed timelines that had led to the boycott. The Committee notes from the resolutions adopted at the 48th biennial delegates conference of the FTUC provided by the Government in its supplementary report that: (i) the FTUC maintains its position on boycotting participation in any tripartite forums until its role as an important stakeholder with sincere engagement is recognized; and (ii) the FTUC expresses concern about the Government’s failure to uphold its commitment to engage in genuine social dialogue and to take any positive action to review the labour legislation, and denounces the way in which the Ministry of Employment, Productivity and Industrial Relations has handled the review process. The Committee further observes that the ITUC calls on the Government to return to the negotiating table with the social partners to fully implement the JIR and to grant safeguards and guarantees to those participating in the dialogue. Finally, the Committee welcomes the Government’s indication in its supplementary report that a detailed Plan of Action with timelines was elaborated with the ILO Country Office in September 2020 to give guidelines to the tripartite partners and the Plan of Action enumerates issues to be addressed in order to implement recommendations of the ILO supervisory mechanisms, including the reconvening of the ERAB, the ERA matrix, the reform of the essential services list, training and sensitization of the police on civil liberties and freedom of association, as well as the organization of the direct contacts mission. In light of the above, the Committee urges the Government to take all necessary measures to continue to review the labour legislation within the reconvened ERAB, as agreed in the JIR and the September 2020 Plan of Action, with a view to rapidly bringing it into line with the Convention, taking into account the Committee’s comments below.

Article 2 of the Convention. Right of workers to establish and join organizations of their own choosing. The Committee had previously noted that the following issues were still pending after the adoption of the Employment Relations (Amendment) Act, 2016: denial of the right to organize to prison guards (section 3(2)); and excessively wide discretionary power of the Registrar in deciding after consultation whether or not a union meets the conditions for registration under the Employment Relations Promulgation, 2007 (ERP) (hereinafter, ERA, section 125(1)(a) as amended). The Committee notes, on the one hand, the Government’s indication that the tripartite partners met in August 2019 to discuss the proposed amendments and all clauses in the ERA matrix but observes, on the other hand, the ITUC and the FTUC allegation that no progress has been achieved since then and the matrix agreed by the tripartite partners is still pending with the Solicitor General’s office. In the absence of any substantial progress in this regard, the Committee urges the Government to finalize the process of review on the basis of the tripartite-agreed matrix so that the necessary amendments for bringing the legislation into full conformity with the Convention may be rapidly submitted to Parliament and adopted.

Article 3. Right of organizations to elect their representatives in full freedom, organize their activities and formulate their programmes. The Committee had previously observed that, pursuant to section 185 of the ERA as amended in 2015, the list of industries considered as essential services included: (i) the services listed in Schedule 7 of the ERP; (ii) the essential national industries declared under the former Essential National Industries (Employment) Decree, 2011 (ENID) (financial industry, telecommunications industry, civil aviation industry and public utilities industry), and the corresponding designated companies; and (iii) the Government, statutory authorities, local authorities and government commercial companies (following the adoption of the Public Enterprise Act, 2019, these are now referred to as public enterprises – an entity controlled by the State and listed in Schedule 1 of the Act or designated as such by the Minister).

The Committee welcomes the Government’s indication that, as agreed in the JIR and with the technical assistance of the Office, a workshop was held on 16 and 17 October 2019 with the participation of the tripartite partners to consider, gauge and determine the list of essential services and industries. The Committee also welcomes that, as a result of the workshop, the tripartite parties agreed on a time-bound plan of action to review the existing list of essential services within the ERAB and to engage in discussion with the aim of restricting limitations on the right to strike to essential services in the strict sense of the term and public servants exercising authority in the name of the State. The Government informs that it has received proposals for amendments from representatives of workers and employers and is currently considering them. The Committee notes, however, the concerns expressed by the FTUC that due to the Minister’s absence from the workshop, all decisions had to be referred to the Solicitor General’s office and that the timelines continue to be ignored without any justification for the delay in convening meetings to finalize the essential national industries list and the ERA matrix.

The Committee wishes to reiterate that while some essential industries are defined in line with the Convention, namely those which had been initially included in Schedule 7 of the ERP, other industries where strikes may now be prohibited due to the inclusion of the ENID in the ERA do not fall within the definition of essential services in the strict sense of the term, including: statutory government authorities; local, city, town or rural authorities; workers in managerial positions; the financial sector; radio, television and broadcasting services; civil aviation industry and airport services (except air traffic control); public utilities industry in general; pine, mahogany and wood industry; metal and mining sector; postal services; and public enterprises in general. The Committee also wishes to emphasize that provisions which prohibit the right to strike on the basis of potential detriment to public interest or economic consequences are not compatible with the principles relating to the right to strike. The Committee recalls, however, that for services which are not considered essential in the strict sense of the term, but in which strikes of a certain magnitude and duration could cause an acute crisis threatening the normal conditions of existence of the population or in public services of fundamental importance in which it is important to deliver the basic needs of users, a negotiated minimum service, as a possible alternative to fully restricting industrial action through imposed compulsory arbitration, could be appropriate. The right to strike may also be restricted for public servants but only those exercising authority in the name of the State. Given the extensive breadth of the services where workers’ rights to take industrial action may be prohibited, as noted above, the Committee urges the Government to meaningfully engage with the social partners without further delay to review the list of essential services, as agreed in the JIR and the October 2019 and the September 2020 action plans, so as to restrict limitations on the right to strike to essential services in the strict sense of the term and public servants exercising authority in the name of the State. The Committee requests the Government to provide information on the progress achieved in this regard.

In addition, the Committee has been requesting for a number of years that the Government take measures to review numerous provisions of the ERA. In the absence of any progress reported in this regard, the Committee recalls that the following issues in the ERA are still pending: 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); compulsory arbitration (sections 169 and 170, section 181(c) as amended, new section 191BS (formerly 191(1)(c)); penalty in form of a fine in case of staging an unlawful but peaceful strike (sections 250 and 256(a)); 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); and compulsory arbitration in services qualified as essential (sections 191Q, 191R, 191S, 191T and 191AA). In this regard, the Committee observes, from the resolutions adopted at the 48th biennial delegates conference of the FTUC provided by the Government in its supplementary report, the concerns expressed by the FTUC about the inefficiency of the Arbitration Court and the Employment Tribunals, as well as the need to improve the current dispute resolution system in order to reduce considerable delays in resolving disputes. The Committee therefore urges the Government to take measures to review the above provisions of the ERA, in accordance with the agreement in the JIR and 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 Order (Amendment) Decree (POAD). With regard to its previous comments concerning the practical application of the POAD, the Committee notes that the Government simply reiterates that the POAD facilitates the maintenance of public order and that prior permission is required to ensure the carrying out of administrative functions and the provision of law enforcement officers to maintain order. While further noting that the Government points to two instances, in October 2017 and January 2018, in which the FTUC obtained a permit and undertook marches, the Committee observes that, according to the FTUC, its recent requests to march from May, August and November 2019 were all refused. The ITUC and the FTUC denounce that permission for union meetings and public gatherings continues to be arbitrarily refused and that section 8 of the POAD has been increasingly used to interfere in, prevent and frustrate trade union meetings and assemblies. The Committee urges the Government to take the necessary measures to bring section 8 of the POAD into line with the Convention by fully repealing or amending this provision so as to ensure that the right to assembly may be freely exercised.

Political Parties Decree. The Committee had previously 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 that sections 113(2) and 115(1) of the Electoral Decree prohibit any public officer from conducting campaign activities, and any person, entity or organization that receives any funding or assistance from a foreign government, intergovernmental or non-governmental organization to engage in, participate in or conduct any campaign (including organizing debates, public forums, meetings, interviews, panel discussions, or publishing any material) that is related to the election. In its previous comments, the Committee further observed that the Political Parties Decree was unduly restrictive in prohibiting membership in a political party or any expression of political support or opposition by officers of employers’ or workers’ organizations, and requested the Government once again to take measures to amend the above provisions, in consultation with the representative national workers’ and employers’ organizations. Observing that the Government does not provide any new information and noting the ITUC concerns about the restrictive effect of the Political Parties Decree on legitimate trade union activities, the Committee reiterates its request in this respect.

Article 4. Dissolution and suspension of organizations by administrative authority. The Committee notes the ITUC allegations that in February 2020, the Government suspended five trade unions for failing to submit their annual audited reports and indicated that they faced penalties and deregistration if they continued to fail to comply with the legislation (the Hot Bread Kitchen Employees Trade Union, the Fiji Maritime Workers Association, the Viti National Union of I-taukei Workers, BPSS Co Limited Workers and Carpenters Group of Salaries Association and the I-taukei Land Trust Board Workers Union). According to the ITUC, such arbitrary measures represent a clear attempt at quashing independent trade unions and the legislation does not provide for sufficient guarantees for trade unions to operate without undue interference by the authorities, as demonstrated by section 128(3) of the ERA, which gives the Registrar excessive power to request detailed and certified accounts from the treasurer at any time. The Committee notes that the Government refutes this allegation as baseless and untrue and asserts that any suspension of trade union activity is done in accordance with section 133(2) of the ERA. With regard to the mentioned trade unions, the Government informs that: (i) in June 2019, the Registrar issued notices to 11 unions for failure to submit their annual returns under section 129 of the ERA; in August 2019, the Registrar issued a follow-up notice; and in September 2019, seven trade unions, which had not rectified their breach, were issued a notice of suspension; (ii) the notice of suspension provided the unions two months to show cause as to why their registration should not be suspended; (iii) despite the notice, four unions failed to rectify their breach and in June 2020, the Registrar published a notice of cancellation concerning the four unions; and (iv) the unions were again given two months to rectify their breach and the Registrar only cancelled the registration of those unions that failed to respond to the notice, whereas the remaining three suspended unions were able to submit their annual reports. The Government adds that there are currently 46 active unions in Fiji, which freely conduct their activities and the Registrar does not have the authority to dictate how they operate or function under their constitution, thus ensuring absolute freedom for trade unions to deal with their affairs. The Committee takes due note of the steps taken by the Registrar before suspending or cancelling the registration of the above trade unions and recalls that under section 139 of the ERA, a trade union may appeal a decision against suspension or cancellation of registration to the competent court. Further recalling however that the dissolution and suspension of trade union organizations constitute extreme forms of interference and should be reserved for serious breaches of the law after exhausting other possibilities with less serious effects for the organizations, and observing the ITUC’s allegations that these measures constitute an attempt at quashing independent trade unions, the Committee requests the Government to consider, in consultation with the most representative organizations, any measures that are appropriate to ensure that the procedures for suspension or cancellation of trade union registration are, both in law and in practice, in full accordance with the guarantees set out in the Convention.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government and the social partners this year, as well as on the basis of the information at its disposal in 2019.

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2019 and 15 September 2020 and of the Fiji Trades Union Congress (FTUC) received on 23 May and 13 November 2019, denouncing violations of civil liberties and lack of progress on the legislative reform. The Committee notes the Government’s general reply thereto, as well as to the 2017 and 2018 FTUC observations, and requests it to provide further details on the specific incidents of alleged violations of civil liberties reported by the FTUC.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 108th Session, June 2019)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards (hereafter the Conference Committee) in June 2019 concerning the application of the Convention. It notes that the Conference Committee observed serious allegations concerning the violation of basic civil liberties, including arrests, detentions and assaults, and restrictions of freedom of association and noted with regret the Government’s failure to complete the process under the Joint Implementation Report (JIR). The Conference Committee called upon the Government to: (i) refrain from interfering in the designation of the representatives of the social partners on tripartite bodies; (ii) reconvene the Employment Relations Advisory Board (ERAB) without delay in order to start a legislative reform process; (iii) complete without further delay the full legislative reform process as agreed under the JIR; (iv) refrain from anti-union practices, including arrests, detentions, violence, intimidation, harassment and interference; (v) ensure that workers’ and employers’ organizations are able to exercise their rights to freedom of association, freedom of assembly and speech without undue interference by the public authorities; and (vi) ensure that normal judicial procedures and due process are guaranteed to workers’ and employers’ organizations and their members. The Conference Committee also requested the Government to report on progress made towards the implementation of the JIR in consultation with the social partners by November 2019 and called on the Government to accept a direct contacts mission to assess progress made before the 109th Session of the International Labour Conference. While duly noting the context of the current COVID-19 pandemic, the Committee trusts that the direct contacts mission requested by the Conference Committee will be able to take place as soon as the situation so permits and, if possible, before the next International Labour Conference.

Trade union rights and civil liberties. In its previous comments, the Committee requested the Government to respond in full detail to the FTUC allegations of continued harassment and intimidation of trade unionists, in particular with respect to its National Secretary, Felix Anthony. The Committee notes the Government’s general statement that Mr Anthony has been able to organize and carry out trade union activities without any interference from the Government and that the arrest, search and detention of persons previously alleged by the ITUC and the FTUC were not intended to harass or intimidate trade unionists but to allow the Commissioner of Police to conduct investigations into alleged violations of applicable laws. The Government also affirms that the Commissioner of Police and the Office of the Director of Public Prosecutions are both independent and neither the entities nor their decisions are subject to the direction or control of the Government. The Committee notes, however, the 2020 ITUC allegations that Mr Anthony is currently charged with one count of malicious acts under the Public Order Act, 1969 in relation to his trade union activities following the mass termination of 2,000 workers’ contracts by the Fiji Water Authority in April 2019, which led to protests and the arrest of trade unionists and union members, including Mr Anthony. The ITUC alleges that Mr Anthony was to appear before the court on 1 September 2020 and if convicted, he could receive a fine of up to US$2,500 or be imprisoned for up to three years. The Committee notes the Government’s reply that the arrest and subsequent criminal prosecution of Mr Anthony are not a targeted attack but a matter that is criminal in nature and that the presiding court will make a determination on the criminal charges and penalties imposed, if any. The Committee further notes with concern the ITUC and FTUC allegations of continued intimidation by the police, arrests, detention, interrogation and the filing of criminal charges against trade unionists, as well as prolonged confiscation of personal and union property and violent dispersal of gatherings between April and June 2019. Recalling the interdependence between civil liberties and trade union rights and emphasizing that a truly free and independent trade union movement can only develop in a climate free from violence, pressure and threats of any kind against the leaders and members of such organizations, the Committee requests the Government to make serious efforts to ensure that state entities and their officials refrain from anti-union practices, including arrests, detentions, violence, intimidation, harassment and interference in trade union activities, so as to contribute to an environment conducive to the full development of trade union rights. The Committee requests the Government to consider issuing instructions to the police and the armed forces in this regard and to provide training to ensure that any actions taken during demonstrations respect the basic civil liberties and fundamental labour rights of workers and employers. Furthermore, the Committee firmly expects that any charges against Mr Anthony related to the exercise of his trade union activities will be immediately dropped.

Appointment of members to and the functioning of the Employment Relations Advisory Board to review labour legislation. In its previous comments, having observed the FTUC concerns that the Government had systematically dismantled tripartism by removing or replacing the tripartite representation on a number of bodies with its own nominees, the Committee requested the Government to provide detailed information on the manner in which it designated individuals to these bodies and the representative nature of the organizations that appeared therein. The Committee notes the detailed reply provided by the Government on the appointment of members to the ERAB, the Fiji National Provident Fund, the Fiji National University, the Wages Council and the Air Terminal Service (Fiji) Limited. The Committee also notes the Government’s clarification that, in addition to the ERAB, the National Occupational Health and Safety Advisory Board (NOHSAB) and the National Employment Centre Board (NECB) also have tripartite membership. The Government further indicates, with regard to the ERAB, that: (i) the Minister for Employment is the appointing authority and representatives of workers and employers are appointed from persons nominated by workers’ and employers’ organizations; (ii) appointment of members is undertaken through a consultation process to allow expanded representation of workers from various organizations; (iii) there is no interference from the Government in the designation of representatives of the social partners; and (iv) as the current ERAB membership ended in October 2019, the social partners were invited to submit nominees and both the Fiji Commerce and Employers Federation (FCEF) and the FTUC have already done so at the end of October 2019. The Committee observes, however, that, according to the FTUC, there is no indication as to when the appointment of ERAB members will take place, despite the urgency of the situation, and that the ITUC remains concerned about government manipulation of national tripartite bodies, thus curtailing the possibility of genuine tripartite dialogue. The Committee trusts that the Government will refrain from any undue interference in the nomination and appointment of members to the ERAB and to other tripartite bodies, and will ensure that the social partners can freely designate their representatives. The Committee expects the appointment of ERAB members to take place without delay so as to allow this mechanism to reconvene and meet regularly in order to pursue the labour law review and meaningfully address all outstanding matters in this regard.

Progress on the review of labour legislation as agreed in the Joint Implementation Report. The Committee previously noted with regret the apparent lack of progress on the review of the labour legislation as agreed in the JIR and urged the Government to take the necessary measures with a view to rapidly bringing the legislation into line with the Convention. The Committee notes the Government’s indication that several meetings took place with the tripartite partners and the ILO between June 2018 and August 2019, in which it was agreed that a number of matters under the JIR have already been implemented and that the tripartite partners are making good progress on the outstanding matters concerning the review of labour laws and the list of essential services and industries, despite the FTUC’s boycott and withdrawal from the tripartite dialogue within the ERAB in June 2018, February and August 2019. The Committee notes that, according to the FTUC, the Government’s reference to boycott clearly reveals that there remain issues in the appointment process of ERAB members and shows the Government’s lack of genuine commitment to previously agreed timelines that had led to the boycott. The Committee notes from the resolutions adopted at the 48th biennial delegates conference of the FTUC provided by the Government in its supplementary report that: (i) the FTUC maintains its position on boycotting participation in any tripartite forums until its role as an important stakeholder with sincere engagement is recognized; and (ii) the FTUC expresses concern about the Government’s failure to uphold its commitment to engage in genuine social dialogue and to take any positive action to review the labour legislation, and denounces the way in which the Ministry of Employment, Productivity and Industrial Relations has handled the review process. The Committee further observes that the ITUC calls on the Government to return to the negotiating table with the social partners to fully implement the JIR and to grant safeguards and guarantees to those participating in the dialogue. Finally, the Committee welcomes the Government’s indication in its supplementary report that a detailed Plan of Action with timelines was elaborated with the ILO Country Office in September 2020 to give guidelines to the tripartite partners and the Plan of Action enumerates issues to be addressed in order to implement recommendations of the ILO supervisory mechanisms, including the reconvening of the ERAB, the ERA matrix, the reform of the essential services list, training and sensitization of the police on civil liberties and freedom of association, as well as the organization of the direct contacts mission. In light of the above, the Committee urges the Government to take all necessary measures to continue to review the labour legislation within the reconvened ERAB, as agreed in the JIR and the September 2020 Plan of Action, with a view to rapidly bringing it into line with the Convention, taking into account the Committee’s comments below.

Article 2 of the Convention. Right of workers to establish and join organizations of their own choosing. The Committee had previously noted that the following issues were still pending after the adoption of the Employment Relations (Amendment) Act, 2016: denial of the right to organize to prison guards (section 3(2)); and excessively wide discretionary power of the Registrar in deciding after consultation whether or not a union meets the conditions for registration under the Employment Relations Promulgation, 2007 (ERP) (hereinafter, ERA, section 125(1)(a) as amended). The Committee notes, on the one hand, the Government’s indication that the tripartite partners met in August 2019 to discuss the proposed amendments and all clauses in the ERA matrix but observes, on the other hand, the ITUC and the FTUC allegation that no progress has been achieved since then and the matrix agreed by the tripartite partners is still pending with the Solicitor General’s office. In the absence of any substantial progress in this regard, the Committee urges the Government to finalize the process of review on the basis of the tripartite-agreed matrix so that the necessary amendments for bringing the legislation into full conformity with the Convention may be rapidly submitted to Parliament and adopted.

Article 3. Right of organizations to elect their representatives in full freedom, organize their activities and formulate their programmes. The Committee had previously observed that, pursuant to section 185 of the ERA as amended in 2015, the list of industries considered as essential services included: (i) the services listed in Schedule 7 of the ERP; (ii) the essential national industries declared under the former Essential National Industries (Employment) Decree, 2011 (ENID) (financial industry, telecommunications industry, civil aviation industry and public utilities industry), and the corresponding designated companies; and (iii) the Government, statutory authorities, local authorities and government commercial companies (following the adoption of the Public Enterprise Act, 2019, these are now referred to as public enterprises – an entity controlled by the State and listed in Schedule 1 of the Act or designated as such by the Minister).

The Committee welcomes the Government’s indication that, as agreed in the JIR and with the technical assistance of the Office, a workshop was held on 16 and 17 October 2019 with the participation of the tripartite partners to consider, gauge and determine the list of essential services and industries. The Committee also welcomes that, as a result of the workshop, the tripartite parties agreed on a time-bound plan of action to review the existing list of essential services within the ERAB and to engage in discussion with the aim of restricting limitations on the right to strike to essential services in the strict sense of the term and public servants exercising authority in the name of the State. The Government informs that it has received proposals for amendments from representatives of workers and employers and is currently considering them. The Committee notes, however, the concerns expressed by the FTUC that due to the Minister’s absence from the workshop, all decisions had to be referred to the Solicitor General’s office and that the timelines continue to be ignored without any justification for the delay in convening meetings to finalize the essential national industries list and the ERA matrix.

The Committee wishes to reiterate that while some essential industries are defined in line with the Convention, namely those which had been initially included in Schedule 7 of the ERP, other industries where strikes may now be prohibited due to the inclusion of the ENID in the ERA do not fall within the definition of essential services in the strict sense of the term, including: statutory government authorities; local, city, town or rural authorities; workers in managerial positions; the financial sector; radio, television and broadcasting services; civil aviation industry and airport services (except air traffic control); public utilities industry in general; pine, mahogany and wood industry; metal and mining sector; postal services; and public enterprises in general. The Committee also wishes to emphasize that provisions which prohibit the right to strike on the basis of potential detriment to public interest or economic consequences are not compatible with the principles relating to the right to strike. The Committee recalls, however, that for services which are not considered essential in the strict sense of the term, but in which strikes of a certain magnitude and duration could cause an acute crisis threatening the normal conditions of existence of the population or in public services of fundamental importance in which it is important to deliver the basic needs of users, a negotiated minimum service, as a possible alternative to fully restricting industrial action through imposed compulsory arbitration, could be appropriate. The right to strike may also be restricted for public servants but only those exercising authority in the name of the State. Given the extensive breadth of the services where workers’ rights to take industrial action may be prohibited, as noted above, the Committee urges the Government to meaningfully engage with the social partners without further delay to review the list of essential services, as agreed in the JIR and the October 2019 and the September 2020 action plans, so as to restrict limitations on the right to strike to essential services in the strict sense of the term and public servants exercising authority in the name of the State. The Committee requests the Government to provide information on the progress achieved in this regard.

In addition, the Committee has been requesting for a number of years that the Government take measures to review numerous provisions of the ERA. In the absence of any progress reported in this regard, the Committee recalls that the following issues in the ERA are still pending: 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); compulsory arbitration (sections 169 and 170, section 181(c) as amended, new section 191BS (formerly 191(1)(c)); penalty in form of a fine in case of staging an unlawful but peaceful strike (sections 250 and 256(a)); 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); and compulsory arbitration in services qualified as essential (sections 191Q, 191R, 191S, 191T and 191AA). In this regard, the Committee observes, from the resolutions adopted at the 48th biennial delegates conference of the FTUC provided by the Government in its supplementary report, the concerns expressed by the FTUC about the inefficiency of the Arbitration Court and the Employment Tribunals, as well as the need to improve the current dispute resolution system in order to reduce considerable delays in resolving disputes. The Committee therefore urges the Government to take measures to review the above provisions of the ERA, in accordance with the agreement in the JIR and 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 Order (Amendment) Decree (POAD). With regard to its previous comments concerning the practical application of the POAD, the Committee notes that the Government simply reiterates that the POAD facilitates the maintenance of public order and that prior permission is required to ensure the carrying out of administrative functions and the provision of law enforcement officers to maintain order. While further noting that the Government points to two instances, in October 2017 and January 2018, in which the FTUC obtained a permit and undertook marches, the Committee observes that, according to the FTUC, its recent requests to march from May, August and November 2019 were all refused. The ITUC and the FTUC denounce that permission for union meetings and public gatherings continues to be arbitrarily refused and that section 8 of the POAD has been increasingly used to interfere in, prevent and frustrate trade union meetings and assemblies. The Committee urges the Government to take the necessary measures to bring section 8 of the POAD into line with the Convention by fully repealing or amending this provision so as to ensure that the right to assembly may be freely exercised.

Political Parties Decree. The Committee had previously 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 that sections 113(2) and 115(1) of the Electoral Decree prohibit any public officer from conducting campaign activities, and any person, entity or organization that receives any funding or assistance from a foreign government, intergovernmental or non-governmental organization to engage in, participate in or conduct any campaign (including organizing debates, public forums, meetings, interviews, panel discussions, or publishing any material) that is related to the election. In its previous comments, the Committee further observed that the Political Parties Decree was unduly restrictive in prohibiting membership in a political party or any expression of political support or opposition by officers of employers’ or workers’ organizations, and requested the Government once again to take measures to amend the above provisions, in consultation with the representative national workers’ and employers’ organizations. Observing that the Government does not provide any new information and noting the ITUC concerns about the restrictive effect of the Political Parties Decree on legitimate trade union activities, the Committee reiterates its request in this respect.

Article 4. Dissolution and suspension of organizations by administrative authority. The Committee notes the ITUC allegations that in February 2020, the Government suspended five trade unions for failing to submit their annual audited reports and indicated that they faced penalties and deregistration if they continued to fail to comply with the legislation (the Hot Bread Kitchen Employees Trade Union, the Fiji Maritime Workers Association, the Viti National Union of I-taukei Workers, BPSS Co Limited Workers and Carpenters Group of Salaries Association and the I-taukei Land Trust Board Workers Union). According to the ITUC, such arbitrary measures represent a clear attempt at quashing independent trade unions and the legislation does not provide for sufficient guarantees for trade unions to operate without undue interference by the authorities, as demonstrated by section 128(3) of the ERA, which gives the Registrar excessive power to request detailed and certified accounts from the treasurer at any time. The Committee notes that the Government refutes this allegation as baseless and untrue and asserts that any suspension of trade union activity is done in accordance with section 133(2) of the ERA. With regard to the mentioned trade unions, the Government informs that: (i) in June 2019, the Registrar issued notices to 11 unions for failure to submit their annual returns under section 129 of the ERA; in August 2019, the Registrar issued a follow-up notice; and in September 2019, seven trade unions, which had not rectified their breach, were issued a notice of suspension; (ii) the notice of suspension provided the unions two months to show cause as to why their registration should not be suspended; (iii) despite the notice, four unions failed to rectify their breach and in June 2020, the Registrar published a notice of cancellation concerning the four unions; and (iv) the unions were again given two months to rectify their breach and the Registrar only cancelled the registration of those unions that failed to respond to the notice, whereas the remaining three suspended unions were able to submit their annual reports. The Government adds that there are currently 46 active unions in Fiji, which freely conduct their activities and the Registrar does not have the authority to dictate how they operate or function under their constitution, thus ensuring absolute freedom for trade unions to deal with their affairs. The Committee takes due note of the steps taken by the Registrar before suspending or cancelling the registration of the above trade unions and recalls that under section 139 of the ERA, a trade union may appeal a decision against suspension or cancellation of registration to the competent court. Further recalling however that the dissolution and suspension of trade union organizations constitute extreme forms of interference and should be reserved for serious breaches of the law after exhausting other possibilities with less serious effects for the organizations, and observing the ITUC’s allegations that these measures constitute an attempt at quashing independent trade unions, the Committee requests the Government to consider, in consultation with the most representative organizations, any measures that are appropriate to ensure that the procedures for suspension or cancellation of trade union registration are, both in law and in practice, in full accordance with the guarantees set out in the Convention.

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2019 and of the Fiji Trades Union Congress (FTUC) received on 23 May and 13 November 2019, denouncing violations of civil liberties and lack of progress on the legislative reform. The Committee notes the Government’s general reply thereto, as well as to the 2017 and 2018 FTUC observations, and requests it to provide further details on the specific incidents of alleged violations of civil liberties reported by the FTUC.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 108th Session, June 2019)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards (hereafter the Conference Committee) in June 2019 concerning the application of the Convention. It notes that the Conference Committee observed serious allegations concerning the violation of basic civil liberties, including arrests, detentions and assaults, and restrictions of freedom of association and noted with regret the Government’s failure to complete the process under the Joint Implementation Report (JIR). The Conference Committee called upon the Government to: (i) refrain from interfering in the designation of the representatives of the social partners on tripartite bodies; (ii) reconvene the Employment Relations Advisory Board (ERAB) without delay in order to start a legislative reform process; (iii) complete without further delay the full legislative reform process as agreed under the JIR; (iv) refrain from anti-union practices, including arrests, detentions, violence, intimidation, harassment and interference; (v) ensure that workers’ and employers’ organizations are able to exercise their rights to freedom of association, freedom of assembly and speech without undue interference by the public authorities; and (vi) ensure that normal judicial procedures and due process are guaranteed to workers’ and employers’ organizations and their members. The Conference Committee also requested the Government to report on progress made towards the implementation of the JIR in consultation with the social partners by November 2019 and called on the Government to accept a direct contacts mission to assess progress made before the 109th Session of the International Labour Conference. The Committee trusts that the direct contacts mission requested by the Conference Committee will be able to take place before the next International Labour Conference.

Trade union rights and civil liberties. In its previous comments, the Committee requested the Government to respond in full detail to the FTUC allegations of continued harassment and intimidation of trade unionists, in particular with respect to its National Secretary, Felix Anthony. The Committee notes the Government’s general statement that Mr Anthony has been able to organize and carry out trade union activities without any interference from the Government and that the arrest, search and detention of persons previously alleged by the ITUC and the FTUC were not intended to harass or intimidate trade unionists but to allow the Commissioner of Police to conduct investigations into alleged violations of applicable laws. The Government also affirms that the Commissioner of Police and the Office of the Director of Public Prosecutions are both independent and neither the entities nor their decisions are subject to the direction or control of the Government. The Committee notes with concern, however, the ITUC and FTUC allegations of continued intimidation by the police, arrests, detention, interrogation and the filing of criminal charges against trade unionists, as well as prolonged confiscation of personal and union property and violent dispersal of gatherings between April and June 2019. Recalling the interdependence between civil liberties and trade union rights and emphasizing that a truly free and independent trade union movement can only develop in a climate free from violence, pressure and threats of any kind against the leaders and members of such organizations, the Committee requests the Government to make serious efforts to ensure that state entities and their officials refrain from anti-union practices, including arrests, detentions, violence, intimidation, harassment and interference in trade union activities, so as to contribute to an environment conducive to the full development of trade union rights. The Committee requests the Government to consider issuing instructions to the police and the armed forces in this regard and to provide training to ensure that any actions taken during demonstrations respect the basic civil liberties and fundamental labour rights of workers and employers.

Appointment of members to and the functioning of the Employment Relations Advisory Board to review labour legislation. In its previous comments, having observed the FTUC concerns that the Government had systematically dismantled tripartism by removing or replacing the tripartite representation on a number of bodies with its own nominees, the Committee requested the Government to provide detailed information on the manner in which it designated individuals to these bodies and the representative nature of the organizations that appeared therein. The Committee notes the detailed reply provided by the Government on the appointment of members to the ERAB, the Fiji National Provident Fund, the Fiji National University, the Wages Council and the Air Terminal Service (Fiji) Limited. The Committee also notes the Government’s clarification that, in addition to the ERAB, the National Occupational Health and Safety Advisory Board (NOHSAB) and the National Employment Centre Board (NECB) also have tripartite membership. The Government further indicates, with regard to the ERAB, that: (i) the Minister for Employment is the appointing authority and representatives of workers and employers are appointed from persons nominated by workers’ and employers’ organizations; (ii) appointment of members is undertaken through a consultation process to allow expanded representation of workers from various organizations; (iii) there is no interference from the Government in the designation of representatives of the social partners; and (iv) as the current ERAB membership ended in October 2019, the social partners were invited to submit nominees and both the Fiji Commerce and Employers Federation (FCEF) and the FTUC have already done so at the end of October 2019. The Committee observes, however, that, according to the FTUC, there is no indication as to when the appointment of ERAB members will take place, despite the urgency of the situation, and that the ITUC remains concerned about government manipulation of national tripartite bodies, thus curtailing the possibility of genuine tripartite dialogue. The Committee trusts that the Government will refrain from any undue interference in the nomination and appointment of members to the ERAB and to other tripartite bodies, and will ensure that the social partners can freely designate their representatives. The Committee expects the appointment of ERAB members to take place without delay so as to allow this mechanism to reconvene and meet regularly in order to pursue the labour law review and meaningfully address all outstanding matters in this regard.

Progress on the review of labour legislation as agreed in the JIR. The Committee previously noted with regret the apparent lack of progress on the review of the labour legislation as agreed in the JIR and urged the Government to take the necessary measures with a view to rapidly bringing the legislation into line with the Convention. The Committee notes the Government’s indication that several meetings took place with the tripartite partners and the ILO between June 2018 and August 2019, in which it was agreed that a number of matters under the JIR have already been implemented and that the tripartite partners are making good progress on the outstanding matters concerning the review of labour laws and the list of essential services and industries, despite the FTUC’s boycott and withdrawal from the tripartite dialogue within the ERAB in June 2018, February and August 2019. The Committee notes that, according to the FTUC, the Government’s reference to boycott clearly reveals that there remain issues in the appointment process of ERAB members and shows the Government’s lack of genuine commitment to previously agreed timelines that had led to the boycott. The Committee also notes that the ITUC calls on the Government to return to the negotiating table with the social partners to fully implement the JIR and to grant safeguards and guarantees to those participating in the dialogue. In light of the above, the Committee urges the Government to take all necessary measures to continue to review the labour legislation within the reconvened ERAB, as agreed in the JIR, with a view to rapidly bringing it into line with the Convention, taking into account the Committee’s comments below.

Article 2 of the Convention. Right of workers to establish and join organizations of their own choosing. The Committee had previously noted that the following issues were still pending after the adoption of the Employment Relations (Amendment) Act, 2016: denial of the right to organize to prison guards (section 3(2)); and excessively wide discretionary power of the Registrar in deciding after consultation whether or not a union meets the conditions for registration under the Employment Relations Promulgation, 2007 (ERP) (hereinafter, ERA, section 125(1)(a) as amended). The Committee notes, on the one hand, the Government’s indication that the tripartite partners met in August 2019 to discuss the proposed amendments and all clauses in the ERA matrix but observes, on the other hand, the FTUC allegation that no progress has been achieved since then and the matrix agreed by the tripartite partners is still pending with the Solicitor General’s office. In the absence of any substantial progress in this regard, the Committee urges the Government to finalize the process of review on the basis of the tripartite-agreed matrix so that the necessary amendments for bringing the legislation into full conformity with the Convention may be rapidly submitted to Parliament and adopted.

Article 3. Right of organizations to elect their representatives in full freedom, organize their activities and formulate their programmes. The Committee had previously observed that, pursuant to section 185 of the ERA as amended in 2015, the list of industries considered as essential services included: (i) the services listed in Schedule 7 of the ERP; (ii) the essential national industries declared under the former Essential National Industries (Employment) Decree, 2011 (ENID) (financial industry, telecommunications industry, civil aviation industry and public utilities industry), and the corresponding designated companies; and (iii) the Government, statutory authorities, local authorities and government commercial companies (following the adoption of the Public Enterprise Act, 2019, these are now referred to as public enterprises – an entity controlled by the State and listed in Schedule 1 of the Act or designated as such by the Minister).

The Committee welcomes the Government’s indication that, as agreed in the JIR and with the technical assistance of the Office, a workshop was held on 16 and 17 October 2019 with the participation of the tripartite partners to consider, gauge and determine the list of essential services and industries. The Committee also welcomes that, as a result of the workshop, the tripartite parties agreed on a time-bound plan of action to review the existing list of essential services within the ERAB and to engage in discussion with the aim of restricting limitations on the right to strike to essential services in the strict sense of the term and public servants exercising authority in the name of the State. The Government informs that it has received proposals for amendments from representatives of workers and employers and is currently considering them. The Committee notes, however, the concerns expressed by the FTUC that due to the Minister’s absence from the workshop, all decisions had to be referred to the Solicitor General’s office and that the timelines continue to be ignored without any justification for the delay in convening meetings to finalize the essential national industries list and the ERA matrix.

The Committee wishes to reiterate that while some essential industries are defined in line with the Convention, namely those which had been initially included in Schedule 7 of the ERP, other industries where strikes may now be prohibited due to the inclusion of the ENID in the ERA do not fall within the definition of essential services in the strict sense of the term, including: statutory government authorities; local, city, town or rural authorities; workers in managerial positions; the financial sector; radio, television and broadcasting services; civil aviation industry and airport services (except air traffic control); public utilities industry in general; pine, mahogany and wood industry; metal and mining sector; postal services; and public enterprises in general. The Committee also wishes to emphasize that provisions which prohibit the right to strike on the basis of potential detriment to public interest or economic consequences are not compatible with the principles relating to the right to strike. The Committee recalls, however, that for services which are not considered essential in the strict sense of the term, but in which strikes of a certain magnitude and duration could cause an acute crisis threatening the normal conditions of existence of the population or in public services of fundamental importance in which it is important to deliver the basic needs of users, a negotiated minimum service, as a possible alternative to fully restricting industrial action through imposed compulsory arbitration, could be appropriate. The right to strike may also be restricted for public servants but only those exercising authority in the name of the State. Given the extensive breadth of the services where workers’ rights to take industrial action may be prohibited, as noted above, the Committee urges the Government to meaningfully engage with the social partners without further delay to review the list of essential services, as agreed in the JIR and the October 2019 action plan, so as to restrict limitations on the right to strike to essential services in the strict sense of the term and public servants exercising authority in the name of the State. The Committee requests the Government to provide information on the progress achieved in this regard.

In addition, the Committee has requested for a number of years that the Government take measures to review numerous provisions of the ERA. In the absence of any progress reported in this regard, the Committee recalls that the following issues in the ERA are still pending: 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); compulsory arbitration (sections 169 and 170, section 181(c) as amended, new section 191BS (formerly 191(1)(c)); penalty in form of a fine in case of staging an unlawful but peaceful strike (sections 250 and 256(a)); 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); and compulsory arbitration in services qualified as essential (sections 191Q, 191R, 191S, 191T and 191AA). The Committee therefore requests the Government once again to take measures to review the above provisions of the ERA, in accordance with the agreement in the JIR and 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 Order (Amendment) Decree (POAD). With regard to its previous comments concerning the practical application of the POAD, the Committee notes that the Government simply reiterates that the POAD facilitates the maintenance of public order and that prior permission is required to ensure the carrying out of administrative functions and the provision of law enforcement officers to maintain order. While further noting that the Government points to two instances, in October 2017 and January 2018, in which the FTUC obtained a permit and undertook marches, the Committee observes that, according to the FTUC, its recent requests to march from May, August and November 2019 were all refused. The ITUC and the FTUC denounce that permission for union meetings and public gatherings continues to be arbitrarily refused and that section 8 of the POAD has been increasingly used to interfere in, prevent and frustrate trade union meetings and assemblies. The Committee once again requests the Government to take the necessary measures to bring section 8 of the POAD into line with the Convention by fully repealing or amending this provision so as to ensure that the right to assembly may be freely exercised.

Political Parties Decree. The Committee had previously 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 that sections 113(2) and 115(1) of the Electoral Decree prohibit any public officer from conducting campaign activities, and any person, entity or organization that receives any funding or assistance from a foreign government, intergovernmental or non-governmental organization to engage in, participate in or conduct any campaign (including organizing debates, public forums, meetings, interviews, panel discussions, or publishing any material) that is related to the election. In its previous comments, the Committee further observed that the Political Parties Decree was unduly restrictive in prohibiting membership in a political party or any expression of political support or opposition by officers of employers’ or workers’ organizations, and requested the Government once again to take measures to amend the above provisions, in consultation with the representative national workers’ and employers’ organizations. Observing that the Government does not provide any new information and noting the ITUC concerns about the restrictive effect of the Political Parties Decree on legitimate trade union activities, the Committee reiterates its request in this respect.

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee notes the observations from the Fiji Trades Union Congress (FTUC) received on 19 October 2017 and 23 August 2018 and requests the Government to reply in detail to the matters raised therein.

In its previous comments, the Committee took note of the Joint Implementation Report (JIR) signed by the Government, the FTUC and the Fiji Commerce and Employers’ Federation (FCEF) on 29 January 2016 giving rise to the closure of the procedure invoked under article 26 of the ILO Constitution. The Committee requested the Government to continue to provide information on the developments in relation to the follow-up given to the JIR and the 2016 amendment of the Employment Relations Promulgation (ERP). In light of the information provided in the Government’s November 2017 report and the allegations raised by the FTUC of significant and persistent lack of progress in implementing the JIR, continuing harassment and intimidation of trade unionists, and violations of fundamental human rights, the Committee has decided to examine this Convention outside of the reporting year.

The Committee notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2723 drawing the legislative aspects of the case to the attention of the Committee of Experts (381st and 386th Reports, paragraphs 36–55 and 18–38) and observes that a number of the factual allegations raised by the FTUC have been addressed within the framework of the Committee on Freedom of Association’s examination.

Trade union rights and civil liberties. In reply to its previous comments, the Committee notes with interest that all remaining charges against trade union leaders and members, including Mr Nitendra Goundar, a member of the National Union of Hospitality, Catering and Tourism Industries Employees, have been dropped. The Committee notes with concern however the FTUC’s allegations that harassment and intimidation of trade unionists continues, in particular with respect to its National Secretary, Felix Anthony. It requests the Government to respond in full detail in this regard.

Legislative issues

The Committee notes from the Government’s 2017 report that the Employment Relations Advisory Board (ERAB) met regularly to review the labour laws as agreed under the JIR and that on 27 October 2017, it agreed to circulate its views within two weeks on the workers’ and employers’ positions with a subcommittee to meet in the first week of December 2017 for a detailed examination. The Government’s report indicates that, subsequently, the ERAB would meet every other month.

The Committee observes, however, the FTUC’s claim in its 2018 communication that despite the signing of the JIR, the Government has not engaged in good faith to amend the legislation to bring it into conformity with the Convention, and that the ERAB has not held meetings as agreed and has now been shut down without any review of the legislation or legislative amendment. Moreover, according to the FTUC, legitimate union activities like organizing demonstrations, holding meetings and resolving disputes have become difficult, if not impossible.

As regards the composition of the ERAB, the Committee recalls that its previous comments referred to the right of representative national workers’ and employers’ organizations to participate in national tripartite bodies, and to nominate delegates to international bodies and that it requested the Government to provide information on the composition of the ERAB and the Arbitration Court, and to explain the manner in which the representative national workers’ and employers’ organizations have been able to determine their representatives. The Committee notes the Government’s indication that the Minister for Employment had appointed additional members to the ERAB so as to ensure that all sectors of the social partners were widely represented and that the nominations to the Arbitration Court included nominations for the FCEF and the FTUC. The Committee notes with concern, however, the allegations of the FTUC that the Government has systematically dismantled tripartism by removing and/or replacing the tripartite representation on a number of bodies (including the ERAB, the Fiji National Provide Fund, the Fiji National University Training at the Productivity Authority of Fiji, the Air Terminal Service and the Wages Councils) with its own nominees. Recalling the role of representative national workers’ and employers’ organizations in determining representatives on national bodies, the Committee requests the Government to provide detailed information on the manner in which it designated individuals from membership on these bodies and the representative nature of the organizations that now appear on these bodies.

More generally, the Committee notes with regret that there has apparently been no progress on the review of the labour legislation as agreed in the JIR. With reference to its comments below, the Committee urges the Government to take all necessary measures, including the reconvening of the ERAB, with a view to rapidly bringing the legislation into line with the Convention.

Article 2 of the Convention. Right of workers to establish and join organizations of their own choosing. The Committee had previously noted that the following issues were still pending after the adoption of the Employment Relations (Amendment) Act 2016: denial of right to organize to prison guards (section 3(2)); and 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). The Committee urges the Government to review the abovementioned provisions, in accordance with the agreement in the JIR and 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 organizations to elect their representatives in full freedom, organize their activities and formulate their programmes. The Committee had previously observed that, pursuant to section 185 of the ERP as amended in 2015, the list of industries considered as essential services now includes the services listed in Schedule 7 of the ERP, the essential national industries declared under the former ENID and the corresponding designated companies, as well as the whole of the public service (that is government, statutory authorities, local authorities and government commercial companies). The Committee had welcomed the agreement with the JIR in which the tripartite partners agreed to invite the Office to provide technical assistance and expertise to assist the ERAB to consider, gauge and determine the list of essential services and industries and requested the Government to supply information on any developments regarding the modification of the list of essential services. Observing that the Government has indicated its interest in the technical assistance of the Office in this regard, the Committee trusts that the necessary assistance will be provided without delay and requests the Government to inform on any developments in this regard.

The Committee also wishes to refer to the following issues in the ERP that were still pending and upon which the Government has not provided any information: 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; new section 191BS (formerly 191(1)(c)); and penalty in form of a fine in case of staging an unlawful but peaceful strike (sections 250 and 256(a)); 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). The Committee once again requests the Government to take measures to review the abovementioned provisions of the ERP, in accordance with the agreement in the JIR and 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 Order (Amendment) Decree (POAD). With regard to its previous comments concerning the practical application of the POAD, the Committee notes the FTUC’s allegations that permission for union meetings and public gatherings continues to be arbitrarily refused. It once again requests the Government to take the necessary measures to bring section 8 into line with the Convention by fully repealing or amending this provision so as to ensure that the right to assembly is freely exercised and to provide detailed information in reply to the FTUC’s allegations.

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 that sections 113(2) and 115(1) of the Electoral Decree prohibit any public officer from conducting campaign activities, and any person, entity or organization that receives any funding or assistance from a foreign government, intergovernmental or non-governmental organization to engage in, participate in or conduct any campaign (including organizing debates, public forums, meetings, interviews, panel discussions, or publishing any material) that is related to the election; and had requested information in this regard.

The Committee notes the Government’s reiteration that it has undertaken reforms including of the voting system to create transparent rules of governance and that these provisions seek to ensure the political neutrality of public officers, which include trade union officers. It further notes the continuing concerns of the FTUC that these provisions have created fear among trade unionists as they have been accused of taking part in political activities when they have simply participated in union meetings while the decree itself denies the basic right of unionists to participate in political activities. Observing that the Political Parties Decree is unduly restrictive in prohibiting membership in a political party or any expression of political support or opposition by officers of employers’ or workers’ organizations, the Committee once again requests the Government to take measures to amend the above provisions, in consultation with the representative national workers’ and employers’ organizations, with a view to their amendment.

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

The Committee notes the observations from the International Organisation of Employers (IOE) received on 1 September 2016, which are of a general nature. The Committee notes the observations provided by the International Trade Union Confederation (ITUC) in a communication received on 1 September 2016 referring to matters under examination by the Committee. It also notes the observations from Education International (EI) and the Fiji Teachers’ Union (FTU) received on 6 September 2016 concerning the delay in setting up labour courts, which is penalizing teachers who are waiting for their cases to be heard. The Committee requests the Government to provide its comments thereon.

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 No. 87 by Fiji, had been submitted by a number of Workers’ delegates at the 2013 International Labour Conference, and was declared receivable; that a Tripartite Agreement was signed on 25 March 2015 by the Government, the Fiji Trades Union Congress (FTUC) and the Fiji Commerce and Employers’ Federation (FCEF); and that the Government was requested to accept a tripartite mission to review the ongoing obstacles to the submission of a Joint Implementation Report (JIR) and consider all matters pending in the article 26 complaint. The Committee takes note of the report of the ILO tripartite mission that visited Fiji from 25 to 28 January 2016 and warmly welcomes the signature by all three parties on 29 January 2016 of the JIR, as well as the adoption on 10 February 2016 of the Employment Relations (Amendment) Act 2016 introducing the changes agreed to in the JIR. The Committee is pleased to note the progress which has given rise to the Governing Body decision that the article 26 complaint would not be referred to a commission of inquiry, and that the procedure be closed. The Committee requests the Government to continue to provide information on the developments in relation to the follow-up given to the JIR and the 2016 amendment of the Employment Relations Promulgation (ERP).

The Committee notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2723 drawing the legislative aspects of the case to the attention of the Committee of Experts (378th Report, paragraph 271).

Trade union rights and civil liberties. The Committee recalls that in its previous comments it had noted with satisfaction that the sedition charges brought against Mr Daniel Urai (President of the FTUC) four years ago, had been dropped, and expressed the strong hope, that the remaining charges against Mr Urai, of unlawful assembly on the grounds of failure to observe the terms of the Public Emergency Regulations (PER), would equally be dropped without delay. The Committee notes that the Government indicates that the matter was set for mention on 30 March 2015 to fix a trial date and provides no more up-to-date information. Noting the Government’s statement that all past and pending charges against Mr Urai were brought in relation to the commission of separate criminal offences and not in relation to his trade union membership, the Committee observes that the conduct of trade union meetings is a key trade union activity and that it had previously considered the meeting permit requirements laid down in the now repealed PER contrary to the Convention. The Committee once again urges the Government to take the necessary measures to ensure that the remaining charges against Mr Urai are immediately dropped. The Committee also notes that the Government confirms that the charges against Mr Nitendra Goundar, a member of the National Union of Hospitality, Catering and Tourism Industries Employees, are still pending and that his case would be called for mention on 20 June 2016 in the Nadi Magistrates Court. The Committee requests the Government to provide details as to the nature of the charges brought against Mr Goundar and to take measures to drop them should they be related to trade union activities.

Legislative issues

Article 2 of the Convention. Right of workers to establish and join organizations of their own choosing. The Committee recalls that, in its previous comments, it had welcomed the repeal of Essential National Industries Decree No. 35 of 2011 (ENID) by the 2015 amendment of the ERP, while observing that section 191BW provides that the ENID is repealed except to the extent saved by new Part 19 of the ERP. Having noted the issues relating to the creation of bargaining units that had been raised during the ILO direct contacts mission in 2014, and noting the concerns expressed during the ILO tripartite mission in 2016 that the 2015 amendment of the ERP perpetuated a number of elements of the ENID, particularly as regards the continued existence of bargaining units, the Committee warmly welcomes that, in line with the JIR signed on 29 January 2016, the Employment Relations (Amendment) Act 2016 eliminates the concept of bargaining units from the ERP and allows workers to freely form or join a trade union (including an enterprise union) under the ERP.

The Committee notes that the ITUC states that, although the parties agreed in the JIR that the Employment Relations Advisory Board (ERAB) will continue its work in reviewing labour laws including the ERP matrix so as to ensure compliance with ILO Conventions ratified by Fiji, the matter has been sitting in the ERAB without much progress due to the fact that the ERAB now comprises 31 mostly new members (ten worker, ten employer and ten government representatives plus the chairperson), and that the worker and employer representatives are chosen by the Government and not wholly nominated by the most representative employers’ and workers’ organizations (FTUC and FCEF). The Committee observes that similar issues arise, according to the ITUC, with respect to the nominations to the workers’ and employers’ panels feeding into the composition of the Arbitration Court. The ITUC indicates that four ERAB government representatives have been included in the employers’ panel and that many representatives on the workers’ panel are unknown to the FTUC. 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 representative national workers’ and employers’ organizations. Referring as well to its comments under the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), the Committee requests the Government to provide information on the composition of the ERAB and the Arbitration Court, and to explain the manner in which the representative national workers’ and employers’ organizations have been able to determine their representatives.

The Committee had previously urged 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 notes that, as agreed by the parties in the JIR, the Employment Relations (Amendment) Act 2016 provides that: (i) any trade union which was deregistered as a result of the ENID shall be entitled to apply to be registered again in accordance with the ERP and shall not be required to pay any registration fees provided, however, that the trade union must apply for registration within seven days from the date of commencement of this provision; and (ii) individual grievance cases filed by employees with the Employment Tribunal, which had been discontinued under the ENID and the 2011 ERP Amendment Decree, are hereby reinstated and shall be determined by the Arbitration Court. Concerning the first point, the Committee notes the Government’s indication that the Office of the Registrar of Trade Unions did not re-register any trade unions as records showed that deregistration did not occur. Recalling that trade unions were required to re register under the ENID, the Committee requests the Government to indicate whether the registration of trade unions that did not re-register or were not re registered under the ENID is being considered valid in essential national industries. As regards the second point, the Committee notes that the ITUC indicates that the Arbitration Court is still not operational, although the Government has committed to operationalize it in the near future and the Court has claimed to begin preliminary hearings on 19 September 2016. Observing that the negative effects of the ENID on the trade union movement still persist, the Committee hopes that the Government will accelerate the operationalization of the Arbitration Court so as to ensure the expeditious adjudication of the reinstated individual grievances.

Furthermore, the Committee had previously noted that the following issues previously raised were still pending after the adoption of the Employment Relations (Amendment) Act 2015 and notes that they have not been addressed by the Employment Relations (Amendment) Act 2016: denial of right to organize to prison guards (section 3(2)); and 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). Noting the Government’s indication that ERAB meets monthly to review labour laws to ensure compliance with ratified ILO Conventions, the Committee, with reference to its earlier comments, once again requests the Government to review the abovementioned provisions of the ERP, in accordance with the agreement in the JIR and 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 organizations to elect their representatives in full freedom, organize their activities and formulate their programmes. The Committee had previously observed that, pursuant to section 185 of the ERP as amended in 2015, the list of industries considered as essential services now includes the services listed in Schedule 7 of the ERP, the essential national industries declared under the former ENID and the corresponding designated companies, as well as the whole of the public service (that is government, statutory authorities, local authorities and government commercial companies). The Committee welcomes that, according to the JIR, the tripartite partners agreed to invite the Office to provide technical assistance and expertise to assist the ERAB to consider, gauge and determine the list of essential services and industries. The Committee also notes that the Committee on Freedom of Association asked the Office to provide as soon as possible the requested technical assistance in respect of the list of essential services and industries, and requested the Government to keep it informed of any developments in this regard. Noting the Government’s indication that it has sought technical assistance and advice from the Office, the Committee requests that, as soon as the technical assistance has been provided, the Government supply information on any developments regarding the modification of the list of essential services.

The Committee had previously noted that the following issues previously raised were still pending after the adoption of the Employment Relations (Amendment) Act 2015 and notes that they have not been addressed by the Employment Relations (Amendment) Act 2016: 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; new section 191BS (formerly 191(1)(c)); and penalty in form of a fine in case of staging an unlawful but peaceful strike (sections 250 and 256(a)). Furthermore, the Committee had previously noted with concern the following additional discrepancies between the provisions of the ERP, as amended in 2015, and the Convention, and observes that they have not been addressed by the Employment Relations (Amendment) Act 2016: 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). In light of the abovementioned expanded list of essential services, the Committee reiterates that these restrictions, while not providing for an outright prohibition of industrial action, cover a broad range of the economy, and 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. In the absence of information provided by the Government in relation to the above provisions, and noting the Government’s indication that ERAB meets monthly to review labour laws to ensure compliance with ratified ILO Conventions, the Committee, with reference to its earlier comments, once again requests the Government to take measures to review the abovementioned provisions of the ERP, in accordance with the agreement in the JIR and 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 Order (Amendment) Decree. The Committee notes that, according to Fiji Constitutional Process (Amendment) Decree No. 80 of 2012, the suspension of the application of section 8 of the Public Order Act, as amended by Public Order (Amendment) Decree No. 1 of 2012 (POAD), which placed unjustified restrictions on freedom of assembly, is no longer valid. The Committee also notes that, according to the report of the ILO tripartite mission, the FTUC criticized the adverse effects of the POAD on legitimate union activities, including meetings, whereas the Solicitor-General considered that the POAD only applied to public meetings and did not normally concern trade union meetings. The Committee considers that permission to hold public meetings and demonstrations, which is an important trade union right, should not be arbitrarily refused. The Committee urges the Government to take measures to bring section 8 of the POAD into line with the Convention by fully repealing or amending this provision so as to ensure that the right to assembly is freely exercised.

Electoral Decree. The Committee previously noted that section 154 of Electoral Decree No. 11 of 27 March 2014 as amended provides that the Fiji Elections Office (FEO) 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 election guidelines supplied by the Government, and observes that, as signalled by the ITUC, section 17(8) of the Electoral Decree provides that the decision of the Electoral Commission on any complaint from the decision of the Supervisor shall be final and shall not be subject to any further appeal to or review by any court, tribunal or any other adjudicating body. The Committee expects that the Government will not unduly interfere in trade union elections taking due account of the organizations’ constitution and by-laws, and requests the Government to take measures to ensure that any decision of the FEO may be subject to judicial review, so as to give effect to the right of workers’ and employers’ organizations to elect their representatives in full freedom.

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 rights. The Committee observes that the Government, in response to its previous request to provide information on any court judgments interpreting these constitutional provisions, refers to certain judicial decisions concerning international law in general but not the Convention in particular. In light of the ITUC’s continuing concerns that these limitations could potentially be interpreted to permit very broad restrictions on the fundamental right to freedom of association, the Committee trusts that the Government will provide information on court judgments, if any, interpreting articles 19 and 20 relating to freedom of association, which the Committee hopes 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 that sections 113(2) and 115(1) of the Electoral Decree prohibit any public officer from conducting campaign activities, and any person, entity or organization that receives any funding or assistance from a foreign government, intergovernmental or non-governmental organization to engage in, participate in or conduct any campaign (including organizing debates, public forums, meetings, interviews, panel discussions, or publishing any material) that is related to the election; and had requested information in this regard. The Committee notes that the Committee on Freedom of Association (CFA) requested the Government to take measures to review section 14 of the Political Parties Decree, in consultation with the representative national workers’ and employers’ organizations, with a view to its amendment so as to ensure respect for the principles enunciated in the CFA’s conclusions. The Committee notes that the Government confines itself to indicating that it has undertaken reforms including of the voting system to create transparent rules of governance and that the provisions seek to ensure the political neutrality of public officers, which include trade union officers. Noting the Government’s indication that trade union officials in Fiji have recently contested general elections and that most of them were unsuccessful and have returned to their former trade union positions, the Committee further notes that the Political Parties Decree goes very far in prohibiting any expression of political support or opposition by officers of employers’ or workers’ organizations. The Committee, therefore, once again requests the Government to take measures to review the above provisions accordingly, in consultation with the representative national workers’ and employers’ organizations, with a view to their amendment.

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

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.

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

The Committee takes note of the observations provided by the International Trade Union Confederation (ITUC) in a communication received on 1 September 2014 and of the observations provided by the International Organisation of Employers (IOE) in a communication received on 1 September 2014.

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

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 report of the ILO direct contacts mission that visited Fiji from 6 to 11 October 2014, which was submitted to the Governing Body in the context of its consideration of the article 26 complaint. The Committee notes with interest the following conclusion from the mission report: “The recent elections and inauguration of a new parliament provided an auspicious backdrop for its (the mission’s) work which sets the tone for a new dispensation where concrete and tangible progress can be made in response to the outstanding requests from the ILO supervisory bodies. The mission was especially encouraged by the frank and open dialogue it was able to have with all concerned and the genuine desire that was expressed to move the country forward on the basis of mutual respect.” The Committee takes note of the Memorandum of Understanding (MoU) on the future of labour relations in Fiji signed by the social partners and expects that this will provide the basis for progress in the country on all of the outstanding matters concerning the application of the Convention.

Trade union rights and civil liberties. The Committee notes with interest from the mission report that the new Police Commissioner has reactivated the investigation into the assault of trade union leader, Felix Antony, which had been the subject of its previous comments. The Committee, like the mission, trusts that Mr Antony will cooperate in any way he can with the investigation and requests the Government to provide information on any further developments in this matter.

The Committee further recalls that its previous comments also referred to the cases of Mr Daniel Urai (President of the Fiji Trades Union Congress (FTUC)) and Mr Goundar who were charged with unlawful assembly on the grounds of failure to observe the terms of the Public Emergency Regulations (PER). The Committee notes with regret from the mission report that the case against Mr Urai is still pending in court. The Committee trusts that all charges related to his exercise of trade union activity will be immediately dropped and expresses the strong hope that this matter will be closed in the very near future. The Committee also requests the Government to indicate whether there are any charges still pending against Mr Goundar.

Legislative issues. The Committee recalls its previous comments requesting that the Government amend the following provisions of the Essential National Industries Decree No. 35 of 2011 (ENID) in order to bring them into conformity with the Convention: section 6 (cancellation of all existing trade union registrations in “essential national industries”); section 7 (all 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 bargaining unit representation to be registered); 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 the Government’s indication that it is anticipated that the direct contacts mission would provide an enabling platform for the resolution of the pending issues related to the ENID and enable the newly elected Government to debate and decide on these issues in the new Parliament guided by the recommendations of the Committee on Freedom of Association and of the Committee of Experts.

The Committee notes with concern that the industries covered by the ENID have been extended. The ENID now covers a number of private banks, the Fiji Revenue and Customs Authority, the Fiji Telecommunications Industry, Fiji Airways, the Fiji Electricity and the Water Authority, the Pine and the Mahogany Industries, Fire Prevention and local government. The Committee further notes from the mission report that:

The 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. Bearing in mind the testimony that court cases concerning ENID companies were terminated on the basis that the Decree’s provisions do not allow for judicial review, the mission considers that such fears are fully comprehensible.

The Committee notes from the mission report that all the bargaining unit representatives and concerned unions met had expressed their desire to be brought back under the scope of the Employment Relations Promulgation (ERP) and that the employers also considered the Promulgation the most appropriate framework for constructive labour relations in the country, while some further amendments to that text might be apposite. The Committee therefore urges the Government to give serious consideration to the full abrogation of the ENID along the lines supported by the social partners when last examining it in the tripartite Employment Relations Advisory Board (ERAB) subcommittee and to provide information on all developments in this regard.

With respect to the ERP of 2007, the Committee recalls once again its request for the amendment of 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); sections 169, 170, 175(3)(b), 180, 181(c) and 191(1)(c) (excessive restrictions on union activity); and sections 250 and 256(a) (penalty of imprisonment in case of staging an unlawful strike).

The Committee notes the Government’s summary of the holistic review of the ERP by the ERAB subcommittee which successfully concluded its work at the end of 2013 giving rise to proposals for amendment to 412 provisions out of which 98 per cent were agreed by majority consensus. The Government further indicates that the ERAB subcommittee unanimously proposed the drafting, development and implementation of a new Employment Relations Tribunal (ERT) Rules to facilitate the culture shift in ERT consistent with the policy of the ERP; the draft Rules were completed in February 2014. The final draft revised ERP was forwarded to the Solicitor-General’s Office on 21 March 2014. Following review by the Solicitor-General, it will be tabled with Cabinet.

The Committee notes this information with interest and firmly expects that the draft amended ERP will be submitted to Parliament in the near future and will ensure full conformity with the Convention. It requests the Government to provide information on the progress made in this regard.

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 the Government’s indication that it is anticipated that the direct contacts mission would provide an enabling platform for the resolution of the pending issues and enable the newly elected Government to debate and decide on these issues in the new Parliament guided by the recommendations of the Committee on Freedom of Association and of the Committee of Experts. The Committee once again 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 requests the Government to indicate any progress made to review the government decrees relating to the public service in terms of their conformity with the ILO fundamental Conventions and any steps for their amendment or repeal.

Finally, the Committee notes from the direct contacts mission report that the mission had learned of the newly published Electoral Decree (No. 11, 2014), which provided that the Electoral Office shall be responsible, under section 154, for the conduct of all elections of all registered trade unions. Noting the concerns expressed by the workers’ and employers’ organization in this regard, the Committee recalls that Article 3 of the Convention provides that these organizations should be able to elect their officers free from interference of the public authorities and firmly expects that any supervision of elections of employers’ or workers’ organizations will be carried out by an independent body and will not interfere with this right. The Committee requests the Government to provide information on any developments in this regard.

Matters raised by the ITUC

The Committee recalls that in its previous comments it had noted with deep concern the ITUC allegations relating to: (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) the Fiji Sugar and General Workers’ Union (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 observes that the Government has not provided any detail in reply to these matters other than to reiterate the exceptions permitted in article 19 of the Fijian Constitution which enables limitations on the fundamental right of freedom of association “for the purpose of regulating essential services and industries, in the overall interests of the Fijian economy and the citizens of Fiji”. The Committee notes in this regard that article 19(2) enables limitations for the purposes of regulating trade unions or collective bargaining process. Given that these limitations could potentially be interpreted to permit very broad restrictions on this fundamental right, the Committee requests the Government to provide information on any court judgments issued interpreting these provisions and expects that, as raised in the direct contacts mission report, the courts will also have recourse to international law in interpreting the provisions of the Fijian Constitution as set out in article 7(1)(b). The Committee also once again requests the Government to provide its observations on the matters raised in relation to the Political Parties Decree and the threats made against the members of the FSGWU.

[The Government is asked to reply in detail to the present comments in 2015.]

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

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.]

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

Comments of workers’ and employers’ organizations. The Committee notes the comments made by the International Trade Union Confederation (ITUC) dated 31 July and 31 August 2012, on the application of the Convention. It further notes the communication of the Fiji Mine Workers Union (FMWU) of 19 September 2012, concerning matters examined by the Committee in the framework of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The Committee notes the comments made by the International Organization 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.

ILO direct contacts mission. The Committee notes the latest conclusions and recommendations reached by the Committee on Freedom of Association (CFA) in the framework of Case No. 2723 concerning, inter alia, acts of assault, harassment, intimidation and arrest of trade unionists, 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 to the issues raised by the Committee and the CFA. It hopes that a new mission may visit the country in the near future in order to deal with the matters examined by the ILO supervisory bodies.

Trade union rights and civil liberties. The Committee reiterates its great concern about 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, previously reported by the ITUC and Education International (EI).

Acts of assault. Concerning the alleged physical attacks on several trade unionists, the Committee notes the Government’s statement that: (i) to date, neither the Police Department nor the Office of Public Prosecutions has received any complaint filed by Mr Felix Anthony or Mr Mohammed Khalil for the alleged physical assaults, and investigations have thus not been initiated; and (ii) internal legal mechanisms within the country itself have therefore not been fully utilized by these two persons.

The Committee recalls that the resolution concerning trade union rights and their relation to civil liberties, adopted by the International Labour Conference (ILC) 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 once again emphasizes that it has always considered that, in the event of assaults on the physical or moral integrity of individuals, an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts. Moreover, as regards allegations of the physical ill-treatment of trade unionists, the Committee has always recalled that governments should give precise instructions and apply effective sanctions where cases of ill-treatment are found. The absence of judgments against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights. The Committee therefore urges the Government to take all necessary measures without delay to ensure the full respect of the above principles. It also urges the Government, even if the victims have lodged a complaint in the meantime, to conduct ex officio 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 Workers; Mr Mohammed Khalil, President of the Fiji Sugar and General Workers Union (FSGWU) – Ba Branch; Mr Attar Singh, General Secretary of the Fiji Islands Council of Trade Unions (FICTU); Mr Taniela Tabu, General Secretary of the Viti National Union of Taukei Workers (VNUTW); and Mr Anand Singh, lawyer. The Committee requests the Government to transmit detailed information with regard to the outcome of such inquiry and the action taken as a result. With particular regard to the reported act of assault against a union leader in retaliation for statements made by his colleague at the ILC in 2011, the Committee reiterates 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 urges the Government to ensure that no trade unionist suffers retaliation for the exercise of freedom of expression.

Arrest and detention. With respect to the arrested trade unionists (Mr Felix Anthony, Mr Daniel Urai, and Mr Nitendra Goundar), the Committee notes that the ITUC indicates that Mr Daniel Urai, the FTUC President, has two cases pending in court which have still not been heard: one for preparing union members for collective bargaining and the other one for having allegedly incited political violence by urging to overthrow the Government; and that, in the first case which is pending for almost a year, the prosecution has not been able to produce the required disclosures including the identification of the complainant.

The Committee also notes the Government’s summary of events: (i) Mr Nitendra Goundar and Mr Daniel Urai convened and conducted a meeting with the Hotel Workers’ Union at the Mana Island Resort on 3 August 2011, without the appropriate permit under the Public Emergency Regulations (PER) and allegedly made inciting remarks against the Government of Fiji; (ii) police arrested the two trade unionists and detained them for questioning in the conference room of the Nadi police station for one day; (iii) Mr Goundar and Mr Urai were charged on 4 August 2011 for breaches under the PER; (iv) by their own admission, they erred by not applying for the relevant permit to hold a public meeting but denied allegations that they made statements against the current Government; (v) at no time were the two unionists coerced, threatened or assaulted; and (vi) the hearing of the case is scheduled on 4 June 2012.

While having previously noted that Mr Felix Anthony, Mr Daniel Urai, and Mr Nitendra Goundar had been released from custody, the Committee notes with concern that the criminal charges of unlawful assembly brought against Mr Goundar and Mr Urai on the grounds of failure to observe the terms of the PER are still pending. The Committee considers that, while being engaged in trade union activities does not confer immunity from sanctions under ordinary criminal law, the authorities should not use legitimate trade union activities as a pretext for arbitrary arrest or detention or criminal charges. With respect to the abovementioned trade unionists, the Committee therefore urges the Government to take the necessary measures to ensure that all charges against them are immediately dropped, and to provide information of any developments in this regard without delay, including the outcome of the case hearing that the Committee understands has been deferred. The Committee also recalls that the arrest and detention, even for short periods, of trade union leaders and members, engaged in their legitimate trade union activities constitute a grave violation of the principles of freedom of association (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 31). It urges the Government to take full account of this principle in the future.

Restrictions to freedom of assembly and expression. Furthermore, in regard to its previous comments relating to freedom of assembly and expression, the Committee notes the ITUC’s view that many of the powers found in the recently repealed PER are included and expanded in the 2012 Public Order (Amendment) Decree (POAD); in particular, the ITUC criticizes the broad definition of “act of terrorism” that could be used for charging trade unions, the increased prison sentence of up to five years for holding a meeting without permission and the circumstances in which the police may refuse a permit. The Committee, moreover, notes the additional allegations that: (i) while union meetings are currently being held with greater frequency, the authorities (police) are selective in their responses to the permissions sought for meetings; (ii) police scrutinize meeting agendas and the content of speeches before they issue any permits; (iii) the FTUC Assistant National Secretary, Rajeshwar Singh, who represents the FTUC on the Air Terminal Services (ATS) Board was removed from the Board on 31 December 2011 by the Government on the grounds that he had a meeting with Australian trade unionists and allegedly called for a boycott; and (iv) freedom of expression is being limited, for example, in April 2012, a daily newspaper has refused to print a paid advertisement from the FTUC on Labour Day for fear of reprisal from the regime.

The Committee takes due note of the Government's indication that: (i) the PER have been lifted as of 7 January 2012 and that Fiji is once again guided by the Public Order Act as modernized through the POAD, which is an important step in the ongoing elaboration of the new constitution; (ii) notwithstanding the above, the PER did not prohibit trade unions from holding public meetings so long as they abided by the conditions required; (iii) over the last five years, the Government has approved numerous meeting permits; and (iv) today in Fiji, trade unions under the Public Order Act are holding meetings and conducting their important work in promoting the rights and well-being of workers in Fiji.

While welcoming the lifting of the emergency legislation in the form of the PER on 7 January 2012, the Committee notes with concern certain provisions of the Public Order Act as amended by the POAD, in particular, the new subsection (5) of section 8, according to which “the appropriate authority may, in its discretion, refuse to grant a permit under this section to any person or organization that has on any previous occasion been refused a permit by virtue of any written law or, to any person or organization that has on any previous occasion failed to comply with any conditions imposed with respect to any meeting or procession or assembly, or any person or organization which has on any previous occasion organized any meeting or procession or assembly which has prejudiced peace, public safety and good order and/or which has engaged in racial or religious vilification or undermined or sabotaged or attempted to undermine or sabotage the economy or financial integrity of Fiji”. The Committee considers that the wording of this provision could be used in such a way as to make it difficult for trade unions to hold public meetings, especially given the previous allegations of the use of the PER to restrict their rights in this regard. It once again recalls 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 (ILC resolution concerning trade union rights and their relation to civil liberties, adopted at the 54th Session, 1970). Welcoming the decision to temporarily suspend the application of section 8 of the Public Order Act as amended, the Committee requests the Government to consider abrogation or amendment of the POAD so as to ensure that the right to assembly may be freely exercised. The Committee urges the Government once again to take full account of the principles announced above in the future and refrain from unduly impeding the lawful exercise of trade union rights in practice. With regard to Mr Rajeshwar Singh, FTUC Assistant National Secretary, the Committee is of the view that addressing trade unions abroad is part of the normal exercise of trade union rights. It requests the Government to reinstate him in his position representing workers' interests on the ATS Board.

Legislative issues. Essential National Industries Decree No. 35 of 2011. The Committee had previously urged the Government to take the necessary measures to amend the provisions of the Essential National Industries Decree without delay, in full consultation with the social partners, so as to bring it into conformity with the Convention. It notes that, in the view of the ITUC, the Decree continues to devastate trade unions in the covered sectors. The Committee observes that, in the framework of Case No. 2723, the CFA has recalled its previous conclusion that numerous provisions of the Decree and its implementing regulations give rise to serious violations of the principles on freedom of association and collective bargaining, for example, section 6 (cancellation of all existing trade union registrations in essential national industries); sections 10–12 (unions to apply to the Prime Minister to be elected as bargaining unit representative; determination by the Prime Minister of composition and scope of a bargaining unit for election purposes; conduct and supervision of elections by the Registrar); section 14 (50 per cent plus one necessary for a union to be registered as representative of the bargaining unit); section 7 (union officials to be employees of the relevant company); section 27 (providing for serious restrictions of the right to strike); section 26 (lack of judicial recourse for rights disputes; compulsory arbitration by the Government of disputes beyond a certain financial threshold); section 24(4) (prohibition of automatic dues deduction for workers in essential national industries).

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 it, 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 with the views of the Public Service Commission (PSC) and the Attorney-General, and that the work of the ERAB and its subcommittee is anticipated to be concluded by October 2012. The Committee further welcomes that, according to the CFA conclusions 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 considered as 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.

Noting with deep concern that, according to the ITUC, public sector unions and unions representing “essential national industries” face serious financial difficulties or even struggle for survival due to the discontinued check-off facility, the Committee observes that, in the framework of Case No. 2723, the CFA has considered that the withdrawal of a facility of existential importance to unions that was previously granted could, in the current context, be viewed as another attempt to weaken the Fiji trade union movement. 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 therefore requests the Government to make the necessary arrangements to ensure that the check-off facility is fully reactivated in the public sector and the sectors considered as essential national industries.

Employment Relations Promulgation of 2007 (ERP). The Committee previously commented on the necessity to amend the following provisions of the ERP in order to bring them into conformity with the Convention.

• -section 3(2) so as to ensure that prison guards enjoy the right to establish and join organizations of their own choosing;
• -section 125(1)(a) so as to ensure that refusals to register an organization under the said section are determined on the basis of objective criteria. While noting that the Government indicates that since 2007 the Registrar has never refused any trade union application to register under the ERP, the Committee still considers that this provision confers upon the authorities excessively wide discretionary powers in deciding whether or not an organization meets all the conditions for registration;
• -section 119(2), 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, all Fijian trade unions have agreed to the one-union policy per person in the context of all other rights that have been packaged under the ERP. The Committee 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;
• -section 127, 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 forbids non-citizens to be trade union officers;
• -section 184 so as 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. The Committee notes that the Government indicates that the trade unions themselves, citing the fact that they do not have the capacity to resolve internal grievances amongst themselves, requested the Registrar to become involved in these cases. Whilst preferring that unions independently resolve their issues for fear that its participation may be perceived by the ILO to be interference into trade union matters, the Registrar at the behest of the unions has successfully mediated and facilitated the resolution of some of these cases. The Committee notes this information but considers that it should ultimately be up to the trade unions concerned to decide on the expulsion or sanctions against its members, regardless of the invoked reasons;
• -section 128, so as to ensure that only complaints filed by a certain fixed percentage of union members may give rise to an inspection of union accounts. The Committee takes note of the Government’s statement that the current practice is consistent with the ILO Recommendations, since the good governance oversight, which is necessary because trade unions in Fiji receive public funds from their members for their daily operations, is only activated when serious complaints of abuse of such funds are raised with the Registrar, or when the audited accounts reveal significant anomalies that warrant investigations. However, the Committee must recall that a provision which grants authorities the power to examine the books of an organization at any time, unless there is a complaint from a certain percentage of the trade union members, infringes the Convention;
• -section 175(3)(b) so as to ensure that, only a simple majority of the votes cast in a strike ballot is required. The Committee notes the Government’s indication that this has been agreed by all trade unions and unanimously passed by Fiji's multiparty Government and the Lower House in 2006. 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;
• -section 180 so as to ensure that responsibility for declaring a strike illegal lies with an independent body which has the confidence of the parties involved. It notes that the Government shares the sentiment of the ILO and that the independence element of this provision is currently under scrutiny by the ERAB subcommittee;
• -sections 169, 170, 181(c) and 191(1)(c), so as to ensure that their cumulative effects do not amount to compulsory arbitration. The Committee notes that the Government indicates that the policy design of the ERP integrates both the promotion of good faith employment relations and productivity improvement. In practice, this means that those who create employment grievances or disputes have the primary responsibility to solve them and not the State. However, when the parties have exhausted this internal resolution process with good faith, for effective governance, especially in the context of financial global economic crisis, either party to the dispute or the State has to be accorded the right to refer the unresolved dispute to the State mechanism so that the dispute can be amicably resolved speedily without adverse effects to the nation as a whole. In this regard, the referral is not perceived as compulsory, and the system is working very effectively. Nonetheless, the Committee’s request is under discussion at the ERAB subcommittee;
• -section 256(a), which, when read with section 250, provides for a possible penalty of imprisonment in case of the staging of an unlawful strike. The Committee notes the Government’s statement that it takes note of the ILO position in this matter and is willing to review these provisions through the tripartite dialogue in the ERAB subcommittee. However, the Government indicates that, prior to the ERP, trade unions have abused this right to strike provision due to bad faith and the lack of a deterrent mechanism, and that, while fully recognizing the right of workers to go on strike as effectively protected under the ERP, the Government is bound to also include effective deterrents for those who abuse this right. The Committee wishes to recall 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.

The Committee welcomes the Government’s indication that a national peak tripartite body, the ERAB, is responsible for any amendments to the ERP, and that a tripartite subcommittee of the ERAB has been given the mandate to look into the need for any amendments to the ERP and is going through all proposals for amendments before submitting them to the Board for endorsement. The Government expresses the hope to conclude the amendment process in 2012, reiterates its commitment to honour its obligations under the core ILO Conventions in the new Constitution and states that this proactive and inclusive social dialogue in the labour market through the tripartite ERAB to review current labour market policies, laws, institutions and practices is a vital part of the Government's wider national dialogue in the development of Fiji's modern and non-discriminatory Constitution to be in place early 2013, paving the way for the general election in 2014. The Committee trusts that the issues raised above will be part of the deliberations of the ERAB subcommittee and that, in the framework of this exercise, due account will be taken of the Committee’s comments with a view to bringing the ERP into conformity with the Convention. It requests the Government to indicate, in its next report, the results of the ERAB’s deliberations.

Decrees relating to the public sector. The Committee previously noted that the Employment Relations (Amendment Decree) No. 21 excluded 15,000 public service workers from the coverage of the ERP who thus lost overnight their fundamental and other trade union rights, and urged the Government to take all necessary measures to ensure that public servants enjoy the guarantees enshrined in the Convention. The Committee notes the Government’s indication that, since the passing of the Public Service (Amendment) Decree (Decree No. 36), all public servants in Fiji enjoy similar employment safeguard mechanisms as those foreseen in the ERP for the private sector. The Committee welcomes the adoption of the Public Service (Amendment) Decree, which, after the exclusion of public servants from the ERP, restores the protection of their fundamental rights including trade union rights.

The Committee had also noted that the State Services Decree No. 6 of 2009, the Administration of Justice Decrees Nos 9 and 10 of 2009 and No. 14 of 2010 as amended and the Employment Relations (Amendment) Decree No. 21 of 2011 issued by the Government, collectively eliminated 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 terminated any pending or ongoing judicial or administrative proceedings in this regard filed by any individual or organization against the State. The Committee notes the Government’s indication that: (i) civil servants have recourse to the High Court of Fiji by way of judicial review should they be unsatisfied with the decision of the PSC Disciplinary Committee; in this regard, the Government refers to the judgment of the State v. Permanent Secretary for Works, Transport and Public Utilities ex parte Rusiate Tubunaruarua & Ors HBJ01 of 2012, where the High Court ruled that it has full jurisdiction to accept cases from public servants who seek to challenge a decision of the Government or the PSC; and (ii) to facilitate speedy resolutions of employment grievances and disputes, the PSC has implemented a new internal grievance policy that includes the appointment of conciliators within government Ministries and Departments. The Committee welcomes the decision recently rendered by the High Court and the new PSC internal grievance policy. It requests the Government to supply a copy of the High Court decision and to take all necessary measures to ensure that, in practice, all public servants may also have recourse to administrative review of decisions or actions of Government entities. Moreover, the Committee requests the Government to provide information on the relevant mechanisms currently available to public servants to address collective grievances, and to indicate the results of the review by the tripartite ERAB subcommittee of all existing Government decrees relating to the public service in terms of their conformity with the ILO fundamental Conventions.

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

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.]

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) in communications dated 29 August 2008 and 4 September 2009 concerning issues already raised by the Committee, as well as allegations of police disruption of the National Union of Public Workers annual meeting and of the brief detention of its general secretary and his lawyer. The Committee recalls, in this regard, that recourse to force during trade union activities is unjustified, unless it is absolutely necessary, and that the arrest and detention of trade union leaders, without any charges being brought and without a warrant, constitutes a grave violation of the principle of freedom of association. The Committee requests the Government to submit its observations on the ITUC’s comments.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish organizations. 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 reiterates that the prisons and correction services are governed by separate legislation but that they 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, and that on 29 November 2006, the Parliament had committed to undertake a revision of section 3 of the ERA to also include the correctional authorities (including workers in the prisons and correction services). 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, under the revision of section 3(2) of the ERA, prison guards will 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 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. While noting the Government’s statement that it is almost unknown for a worker to have two jobs in Fiji and that it considers multi-union membership as a luxury, the Committee 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 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.

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 with regret the Government’s statement that it is appropriate for the Registrar to hold and wield these general discretionary powers as the adoption of appropriate names has always been the source of conflicts and social unrest. The Committee recalls once again that the term “undesirable” is too general and establishes a genuinely discretionary power in the Registrar. The Committee once again requests the Government to take measures to amend section 122(1)(c) of the ERA so as to establish safeguards against interference by the Registrar.

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 takes note of the Government’s answer that the Registrar exercises his discretion and that the factors used by the Registrar are whether the applicants are genuine in their application for the purposes of collective bargaining as an extension of social dialogue to improve terms and conditions of employment or a mere formality. 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.

Article 3. 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 takes note of the Government’s statement that the Committee’s comments will be taken to social partners through the Employment Relations Advisory Board for deliberation. In these circumstances, the Committee expresses the hope that section 184 of the ERA will soon be amended so that the issue of sanctions against trade union members for refusal to participate in a strike can be left to trade union constitutions and rules and requests the Government to indicate the results of the Employment Relations Advisory Board’s deliberations.

Right to elect workers’ and employers’ 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 takes note of the Government’s statement that the Committee’s comments will be taken to the social partners through the Employment Relations Advisory Board for deliberation. The Committee recalls that provisions of this type infringe the organization’s right to elect representatives in full freedom 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). The Committee expresses the hope 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. It further requests the Government to indicate the outcome of the Board’s deliberations with respect to sections 127 and 127(d) of the ERA.

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 the obligation for submission of annual returns has been put back by five months and that, furthermore, the Registrar only intervenes when a complaint has been lodged. However, the Committee must recall that a provision which grants authorities the power to examine the books of an organization at any time, unless there is a complaint from a certain percentage of the trade union members, infringes the Convention (see General Survey, op. cit., paragraph 125). Accordingly, the Committee once again requests the Government to take measures to amend section 128 of the ERA 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, or when the annual returns give rise to a manifest need to inspect trade union accounts.

Secret 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 the situation in Fiji is such that allegiance to the extended family influences the result of the secret ballot, thus justifying the maintenance of section 175(3)(b) of the ERA. 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). In these circumstances, the Committee requests the Government to take measures to amend section 175(3)(b) of the ERA so as to ensure that only a simple majority of the votes cast in a secret ballot is required.

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 takes note of the Government’s statement that the criteria to determine the legality of a strike are stated by the law, but that the Minister still has a discretionary, but not mandatory, power, after considering other factors, to declare strikes or lockouts unlawful. It further notes that such decision may be appealed to the courts, by means of section 241 of the ERA. The Committee recalls once again that responsibility for declaring a strike illegal should not be with the Government. 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 takes note of the Government’s statement that the said laws are necessary for the preservation of the fragile economy during industrial disputes. Nevertheless, the Committee must recall once again that a very serious prohibition may also 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.

In its previous comments, the Committee had requested the Government to amend sections 204, 206 and 207 of the ERA, which stated the composition, appointment (seemingly without predetermined criteria), term of office and vacation of members of the Employment Tribunal, so as to reinforce the independence and the appearance of impartiality of its members. It takes note of the Government’s statement that mediators operate under a code of ethics, that their conduct can be reviewed by a judge and that one key criterion for the qualification of members of the Employment Tribunal is the acquisition of a recognized professional mediation accreditation. The Committee notes in this regard that the said code of ethics for mediators sets minimum standards to guide mediators in performing their duties and functions, that it provides that parties should come to a voluntary, uncoerced decision in which each party makes free and informed choices, and that a mediator must conduct mediation in an impartial manner and avoid conduct that gives the appearance of partiality.

Penalties against the staging of 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 in this regard, including that the said clause’s purpose is to encourage good faith in employment relationships, that all prison sentences must be justified, and that all defendants are accorded sufficient judicial safeguards. The Committee recalls that no penal sanction should be imposed against a worker for having carried out a peaceful strike and therefore 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 rights have been committed, and can be imposed pursuant to legislation punishing such acts. Nevertheless, even in the absence of violence, if the strike modalities had the effect of making the strike illegitimate, proportionate disciplinary sanctions may be imposed against strikers. The Committee therefore once again requests the Government to take measures to amend section 256(a) of the ERA, taking into account the abovementioned principle.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee takes note of the Government’s report as well as its reply to the comments made by the International Confederation of Free Trade Unions (ICFTU) in a communication of 10 August 2006 mainly concerning issues already raised (Government communications of 3 November 2006 and 23 May 2007). 

The Committee takes note with interest the text of Employment Relations Act No. 36 of 2007 (ERA), which went into effect on 1 October 2007 and repealed the Trade Unions Act, the Trade Disputes Act, the Trade Unions (Recognition) Act and the Employment Act (section 265 of the Employment Relations Act). The Committee notes that the ERA has introduced significant improvements in relation to the previous legislation, although certain issues remain.

1. In its previous comments, which concerned the provisions of the Trade Unions Act, the Committee had requested the Government to extend the right to organize to prison staff (section 2(2) of the Trade Unions Act). The Committee notes that section 3(2) of the ERA excludes the Prisons and Correction Services from the scope of the law. Recalling that under Article 2 of the Convention all workers without distinction whatsoever, including prison guards, have the right to establish and join organizations of their own choosing, the Committee requests the Government to indicate in its next report the measures taken or contemplated with a view to amending section 3(2) of the ERA so as to guarantee this right to prison guards.

2. The Committee had requested that the Government enable workers exercising more than one occupational activity in different occupations or sectors to join the corresponding trade unions as full members (section 21(1) of the Trade Unions Act). The Committee notes that section 119(2) of the ERA provides that an application for registration must be signed by more than six members provided that no member shall belong to more than one trade union. The Committee requests the Government 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 the corresponding trade unions.

3. The Committee had requested that the Government establish appropriate safeguards against interference by the Registrar who was given a genuinely discretionary power to require a change in the name of a trade union (section 12 of the Trade Unions Act). The Committee notes that section 122(1)(c) of the ERA provides that if a trade union name is in the opinion of the Registrar “undesirable”, then the Registrar must request the applicant to alter the name and must not register the trade union until the alteration has been made. While taking due note of previous comments by the Government according to which at times, objections are raised by cultural organizations as trade union names may have cultural connotations which could be sensitive to the country’s diverse culture, the Committee considers nevertheless, that the term “undesirable” is too general and establishes a genuinely discretionary power of the Registrar. The Committee therefore requests that the Government amend section 122(1)(c) of the ERA so as to establish safeguards against interference by the Registrar.

4. The Committee notes that, under section 125(1)(a) of the ERA, the Registrar may refuse registration if the principal objects of the persons seeking registration are not in accordance with those set out in the definition of trade union. The Committee requests the Government to provide information as to the manner in which the principal objects of the persons seeking registration are determined and evaluated.

5. The Committee had requested the Government to amend the law (section 13 of the Trade Unions Act) so as to leave to trade union constitutions and rules the issue of sanctions against trade union members for refusal to participate in a strike. The Committee notes that section 184 of the ERA does not introduce any improvement in this regard. The Committee therefore requests the Government to amend section 184 of the ERA so that the issue of sanctions against trade union members for refusal to participate in a strike can be left up to the trade union constitutions and rules.

6. The Committee had requested that the Government introduce further flexibility into the occupational requirement for participation in trade union elections (section 31(1) of the Trade Unions Act). The Committee notes that section 127 of the ERA maintains that a trade union officer 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, with the possible exceptions of the secretary and the treasurer. The Committee requests the Government to amend section 127 of the ERA so as to allow for a certain proportion of the officers to come from outside the particular profession.

7. The Committee had requested the Government to amend the Employment Relations Bill to ensure that a person who is not a citizen of Fiji may be elected as an officer of a trade union. The Committee notes that section 127(d) of the ERA continues to exclude non-citizens from trade union office. The Committee requests the Government to amend section 127(d) of the ERA so as to allow non‑citizens to run for trade union office at least after a reasonable period of residence in the country.

8. The Committee had requested the Government to lift provisions (sections 53(1) and 57 of the Trade Unions Act) which allow the Registrar to examine trade union books at any time, so as to ensure that the power of the Registrar is sufficiently circumscribed (according to the Government, this power is limited to cases where a complaint needs to be investigated or when the annual returns give rise to a consent to inspect trade union accounts). The Committee notes that section 128 of the Employment Relations Act 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. These provisions seem to maintain the Registrar’s power to examine trade union books at any time. The Committee requests the Government to amend section 128 of the ERA 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 or when the annual returns give rise to a manifest need to inspect trade union accounts.

9. The Committee had requested the Government to ensure that provisions which rendered the legality of strike ballots conditional on whether all trade union members actually voted (section 10B(i) of the Trade Unions Regulations) would no longer be enforced after the repeal of the Trade Unions Act. The Committee notes that section 175(3)(b) of the ERA 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 considers 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 (General Survey of 1994 on freedom of association and collective bargaining, paragraph 170). The Committee therefore requests the Government to amend section 175(3)(b) of the ERA so as to ensure that during strike ballots, account is taken only of the votes cast.

10. The Committee had requested the Government to ensure that responsibility for declaring a strike illegal does not lie with the Government but with an independent body which has the confidence of the parties involved (sections 8–10A of the Trade Disputes Act). The Committee notes that, according to the ICFTU, the Government consistently declares all strikes illegal while the Government considers that this is the case only when legal requirements are not met. The Committee notes that, under section 180 of the ERA, responsibility for declaring a strike illegal continues to lie with the Minister. The Committee requests the Government to amend section 180 of the ERA so that responsibility for declaring a strike illegal rests with an independent body which has the confidence of the parties involved.

11. The Committee had requested the Government to limit the possibility of imposing compulsory arbitration to cases where this is compatible with the Convention (i.e. agreement of the parties, essential services in the strict sense of the term and public servants exercising authority in the name of the State). The Committee notes that sections 169 and 170 of the ERA appear to enable each party to an interests dispute to report it to the Permanent Secretary who must refer it to mediation; sections 170(5) and 194(5) appear to give the Mediator the authority to refer disputes to the Employment Tribunal for final determination, if the mediation fails; under section 177(c) disputes reported in this manner cannot be subject to a lawful strike. Moreover, sections 181(c) and 191(1)(c) of the ERA enable the Minister to apply to the Court for an injunction to discontinue a strike if he/she is satisfied that the strike is not in the public interest or will jeopardize or is likely to jeopardize, inter alia, the economy. The Committee recalls that compulsory arbitration to end a strike is acceptable under the Convention only where it takes place, 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. The Committee 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 in the abovementioned cases.

12. The Committee notes that in its comments, the ICFTU refers to doubts expressed as to the neutrality of the Permanent Arbitrator, an allegation rejected as absurd by the Government, which indicates that there is a possibility to seek judicial review before the High Court in case a ruling by the Arbitrator can be shown to be biased. The Committee notes in this regard that, according to section 204 of the ERA, the Employment Tribunal is composed of a Chief Tribunal appointed by the Judicial Service Commission, and other members who are appointed by the Minister without any specific criteria set for this purpose in the Act, for a term not exceeding three years which can be renewed (section 206). The Committee considers that in mediation and arbitration proceedings, it is essential that all the members of the bodies entrusted with such functions should not only be strictly impartial but, if the confidence of both sides, on which the successful outcome even of compulsory arbitration really depends, is to be gained and maintained, they should also appear to be impartial both to the employers and to the workers concerned. It therefore requests the Government to amend sections 204, 206 and 207 of the ERA in a way which reinforces the independence of the members of the Employment Tribunal, vis-à-vis, the Minister as the appointing authority.

13. The Committee had asked the Government to ensure that prison sentences in the case of strike action are only imposed for penal violations, are justified by the seriousness of the offences committed and are accompanied by sufficient judicial safeguards (section 10A(b) of the Trade Unions Regulations). The Committee observes that sections 250 and 256(a) of the ERA continue to provide for a possible penalty of imprisonment in case of the staging of an unlawful strike. The Committee requests the Government to amend section 256(a) of the ERA so that prison sentences in the case of strike action may be imposed only for penal violations, are justified by the seriousness of the offences committed and are accompanied by sufficient judicial safeguards.

14. Finally, noting that in its previous comments, the Committee had asked the Government to transmit the text of the Industrial Associations Act which regulates employers’ organizations, and that the Government’s report does not contain any information in this respect, the Committee once again reiterates this request.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee takes note of the Government’s report as well as its reply to the comments made by the International Confederation of Free Trade Unions (ICFTU, now ITUC – the International Trade Union Confederation) in a communication of 10 August 2006 mainly concerning issues already raised. The Committee also notes the comments made by the ITUC in a communication dated 28 August 2007 with regard to violations of the Convention in 2006. The Committee requests the Government to provide its observations on the ITUC comments.

The Committee takes note of the text of the Employment Relations Act No. 36 of 2007 (ERA) which went into effect on 1 October 2007 and repealed the Trade Unions Act, the Trade Disputes Act, the Trade Union (Recognition) Act and the Employment Act (section 265 of the Employment Relations Act).

Trade union registration. 1. In its previous comments the Committee had requested that the Government limit the Registrar’s discretionary power to approve a trade union amalgamation (sections 42 and 46 of the Trade Unions Act). The Committee notes with satisfaction that section 123 of the ERA limits the Registrar’s power to refuse an application for amalgamation to cases where the proposed rules of the amalgamated union do not make adequate provision for all matters enlisted in the Schedule to the Act or where any the purposes of the trade union is unlawful. Moreover, section 139 of the ERA provides for a right to appeal the decision of the Registrar to the Employment Relations Tribunal.

2. The Committee notes that in its comments, the ICFTU refers to delays in the registration of trade unions since the previous legislation did not provide for a time frame within which the registration should be concluded. The Committee notes with satisfaction that section 120(2) of the ERA establishes a 21-day deadline from receipt of an application for registration within which the Registrar must decide on the application.

Right to strike. 1. The Committee had requested the Government to restrict the list of essential services in which the right to strike may be prohibited. The Committee notes with satisfaction that Schedule 7 of the Act defines essential services in line with the Convention.

2. In its previous comments, the Committee had requested the Government to amend the provisions which gave the authorities permanent powers of supervision over trade union ballots, including in case of strikes, in a way which constituted interference in trade union activities, and to indicate in this framework whether the enactment of the ERA would lead to the replacement and repeal not only of clause 13 of the Schedule to section 37 of the Trade Unions Act but also section 10(1) and 10(A)(a) of the Trade Unions Regulations. The Committee notes with interest that, in addition to section 265 of the ERA, which repeals the Trade Unions Act, section 265(7) provides that any subsidiary legislation like the Trade Unions Regulations continues only to the extent that it is consistent with the Act. The Committee requests the Government to confirm that section 10(1) and 10(A)(a) of the Trade Unions Regulations are no longer applicable.

The Committee notes that several discrepancies remain between the provisions of the ERA and the Convention. These are raised in a request addressed directly to the Government.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the comments of the International Confederation of Free Trade Unions (ICFTU) of 10 August 2006, which largely refer to pending issues relating to the legislation and the application of the Convention in practice that are already under examination. The ICFTU also alleges restrictions in practice on the rights set out in the Convention, and particularly failure to comply with judicial orders requiring employers to recognize trade unions, illegal and intimidatory practices to prevent the right to organize in export processing zones and the declaration by the administrative authorities that strikes are illegal. The Committee takes note of the recent communication of the Government containing its observations on these comments.

The Committee will examine the comments of the ICFTU, with the Government’s observations to these comments, at its next meeting and requests the Government, in the context of the regular reporting cycle, to provide its observations for the Committee’s next session (November-December 2007) on all of the matters relating to legislation and the application of the Convention in practice raised in its previous direct request in 2005 (see 2005 direct request, 76th Session).

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the information contained in the Government’s report including its response to the comments previously made by the Fiji Trades Union Congress (FTUC). It also notes the text of the Employment Relations Bill 2005, which largely replicates the provisions of the Industrial Relations Bill, 2004, with some modifications.

The Committee recalls that its previous comments concerned the need to address or clarify certain discrepancies between the Industrial Relations Bill, 2004, and the Convention. In particular:

1. The Committee had requested that the Government extend the right to organize to prison staff (section 2(2) of the Trade Unions Act and section 3(2) of the Industrial Relations Bill). The Committee notes in this respect that, according to the Government, the prison service is included among the disciplinary forces together with the army and police force and is covered by separate legislation concerning terms and conditions of employment and other grievances. The Committee notes that, under the Convention, prison staff, like all other workers with the possible exception of the army and police force, should have the right to organize; however, this right does not include under the Convention the right to engage in activities like collective bargaining or strikes. The Committee requests the Government to amend the Employment Relations Bill, 2005, accordingly.

2. The Committee had requested that the Government enable workers exercising more than one occupational activity in different occupations or sectors to join the corresponding trade unions as full members (section 21(1) of the Trade Unions Act and section 129(2) of the draft Industrial Relations Bill). The Committee notes that the Government does not provide any information in this respect. The Committee once again asks the Government to amend the Employment Relations Bill, 2005, accordingly.

3. The Committee had requested that the Government limit the genuinely discretionary power given to the Registrar to require a change in the name of a trade union (section 12 of the Trade Unions Act and section 132(2)(iii) of the draft Industrial Relations Bill). The Committee notes that, according to the Government, this provision applies only where trade union names are similar and identical and unions have been previously registered based on ethnicity (at times, objections are raised by cultural organizations as these names may have cultural connotations which could be sensitive to the country’s diverse culture). While taking due note of the country’s particular context, the Committee observes that its comments concerned the need to qualify the Registrar’s authority in the context of trade union registration, so as to establish appropriate safeguards against interference. The Committee therefore once again requests that the Government amend the Employment Relations Bill, 2005, accordingly.

4. The Committee had requested that the Government limit the Registrar’s discretionary power in the case of trade union amalgamation (sections 42 and 46 of the Trade Unions Act and section 132(c)(iii) of the draft Industrial Relations Bill). The Committee notes that, according to the Government, unions have the right of appeal against any of the decisions of the Registrar to the Tribunal under the provisions of section 139 of the Employment Relations Bill, 2005. The Committee takes note of this information with interest. It also notes with interest that the reference to the possibility to refuse the registration of an amalgamation for "valid objections" has been lifted in the Employment Relations Bill, 2005. The Committee asks the Government to indicate progress made in adopting these provisions.

5. The Committee had asked the Government to amend provisions which give the authorities permanent powers of supervision over trade union ballots in a way which constitutes interference contrary to Article 3 of the Convention (clause 13 of the Schedule to section 37 of the Trade Unions Act, sections 10(1) and 10A(a) of the Trade Unions Regulations as amended by the Trade Unions Regulations (Amendment) Regulations, 1991). In this respect, taking due note of section 279 of the draft Industrial Relations Bill, which provides that the Trade Unions Act shall be repealed upon its entry into force, the Committee had requested the Government to confirm that secondary legislation, like the Trade Unions Regulations (especially sections 10(1) and 10A(a)), shall no longer be enforced once the Trade Unions Act has been repealed. Moreover, noting that, under section 278(s) of the draft Industrial Relations Bill, the Minister may make regulations in the future on the conduct of secret ballots by registered trade unions, the Committee had asked the Government to ensure that any future regulations do not involve any interference in trade union elections. The Committee notes that the Government indicates that the Employment Relations Bill, 2005, when enacted, will replace and repeal the Trade Unions Act and Regulations, the Trade Disputes Act, Employment Act and Wages Councils Act. Under the Bill, all ballots on matters like the election of officers, the revision of union rules, the dissolution of unions, the amalgamation of unions, the federation of a union with another union or with a trade union federation and the imposition of levies shall be conducted exclusively by the unions. The Committee takes note of this information with interest and requests that the Government indicate progress made in adopting these provisions.

6. The Committee had requested that the Government leave to trade union constitutions and rules the issue of sanctions against trade union members for refusal to participate in a strike (sections 13 of the Trade Unions Act and 187(1) of the draft Industrial Relations Bill). The Committee notes that the Government is of the view that such a provision upholds the freedom of an individual to decide whether or not to take part in an unlawful strike. The Committee considers that this provision is not incompatible with the Convention to the extent that it precludes disproportionate sanctions like expulsion. On the other hand, milder sanctions should be left up to the union members to decide on the basis of their rules. The Committee requests the Government to amend the Employment Relations Bill, 2005, accordingly.

7. The Committee had requested that the Government introduce further flexibility into the occupational requirement for participation in trade union elections (section 31(1) of the Trade Unions Act and section 136(1)(a) of the draft Industrial Relations Bill). The Committee notes that the Government emphasizes that a certain flexibility already exists as the Employment Relations Bill, 2005, which allows unions to recruit their treasurer and secretary from outside the occupation with which they are directly concerned. The Committee considers that, rather than excluding specific posts from the occupational requirement (treasurer, secretary), it might be preferable to allow for a certain proportion of the officers to come from outside the particular profession so as to introduce sufficient flexibility, and it therefore requests that the Government amend the Employment Relations Bill, 2005, accordingly.

8. The Committee further notes that the Employment Relations Bill, 2005, provides in section 127(d) that a person who is not a citizen of Fiji may not be an officer of a trade union. The Committee recalls that legislation should allow foreign workers to take up trade union office, at least after a reasonable period of residence in the host country (see General Survey on freedom of association and collective bargaining, 1994, paragraph 118) and requests that the Government amend this provision accordingly.

9. The Committee had requested the Government to lift provisions which allow the Registrar to examine trade union books at any time (sections 53(1) and 57(1) of the Trade Unions Act, section 137(2) and (3) of the draft Industrial Relations Bill as well as section 57(2) of the Trade Unions Act). The Committee notes that the Government indicates that such provisions are only applied where a complaint has to be investigated, in the case of allegations of embezzlement or when the annual returns give rise to a consent to inspect the accounts. The Committee requests the Government to introduce such qualifications expressly in the text of the draft Employment Relations Bill, 2005, so as to ensure that the power of the Registrar is sufficiently circumscribed.

10. The Committee had requested that the Government ensure that provisions, which render the legality of strike ballots conditional on whether all trade union members actually voted (section 10B(i) of the Trade Unions Regulations), will no longer be enforced once the Trade Unions Act has been repealed by virtue of the adoption of the draft Industrial Relations Bill, and also ensure that strike ballots can take place in the future without any undue obstacles. The Committee notes that the Government indicates that a strike ballot is provided for under the Bill, and is the only one which is supervised by the office of the Registrar to ensure that, once the results are in favour, the office of the Registrar can facilitate quick resolution of the disputes in essential services. The Committee takes note of this information with interest and requests that the Government indicate progress made in adopting these provisions.

11. The Committee had requested that the Government ensure that responsibility for declaring a strike illegal does not lie with the Government, but with an independent body which has the confidence of the parties involved (sections 8-10A of the Trade Disputes Act and sections 183-185 of the draft Industrial Relations Bill). The Committee notes that the Government indicates that, although the Bill empowers the Minister to declare a strike unlawful, he/she is not empowered to order its cessation, as this power is vested only with the Employment Court upon an injunction made by the Minister, employer or the union, as the case may be. The Committee is of the view that an independent body, such as the courts, should decide whether to declare a strike illegal and whether to order its cessation. It requests that the Government amend the Employment Relations Bill, 2005, accordingly.

12. The Committee had requested that the Government limit the possibility of imposing compulsory arbitration to cases where it is compatible with the Convention (either 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 (section 6(2)(a) of the Trade Disputes Act and section 213 of the draft Industrial Relations Bill). The Committee notes that the Government indicates that these provisions are in line with the overarching objective of the Bill to provide productive employment relationships based entirely on the principle of good faith and that all disputes should have finality. The Committee once again underscores that compulsory arbitration is acceptable under the Convention only in the specific cases noted above and requests the Government to amend the Bill accordingly.

13. The Committee had requested the Government to restrict the list of essential services in which the right to strike may be prohibited, taking into account the possibility of introducing minimum services given the specific circumstances, for certain of the services on the list of essential services (section 2 of the Trade Disputes Act as enlarged by the Trade Disputes Act (Amendment) Decree No. 27 of 1992). The Committee notes that, according to the Government, the vulnerability of the country in terms of economic recovery and the need for investor confidence raise the need to retain the current list of essential services. The Bill would be subject to review where consideration could be given to reducing the list depending on the country’s progress. The Committee reiterates that, under the Convention, essential services in the strict sense of the term are only those the interruption of which would endanger the life, personal safety or health of the whole or part of the population. It therefore asks the Government to amend the Employment Relations Bill, 2005, accordingly.

14. The Committee had asked the Government to ensure that prison sentences in the case of strike action are only imposed for penal violations, are justified by the seriousness of the offences committed and are accompanied by sufficient judicial safeguards (section 10A(b) of the Trade Unions Regulations and section 278(3) of the draft Industrial Relations Bill). In this context, the Committee had asked the Government to ensure that section 10A(b) of the Trade Unions Regulations shall no longer be enforced once the Trade Unions Act has been repealed by virtue of the adoption of the Industrial Relations Bill. The Committee notes that, according to the Government, after the adoption of the Employment Relations Bill, 2005, section 10A(b) of the Trade Union Regulations shall no longer be enforced. There is also a provision for appeal from the Tribunal to the Employment Court and to the highest court of Fiji against such sentences. The Committee takes note of this information with interest and requests that the Government indicate progress made in adopting these provisions.

The Committee requests that the Government provide information in its next report on all the issues noted above. Noting with interest the significant progress made in bringing the draft legislation into conformity with the Convention, the Committee expresses the hope that the Government will be in a position to bring the Employment Relations Bill, 2005, fully in line with the Convention. It requests that the Government keep it informed of progress made in the process of adoption of the Bill.

Finally, noting that in its previous comments the Committee had asked the Government to transmit the text of the Industrial Associations Act which regulates employers’ organizations, and that the Government’s report does not contain any information in this respect, the Committee once again reiterates this request.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes with interest the information contained in the Government’s first report as well as the text of the draft Industrial Relations Bill. It also notes the comments made by the Fiji Trades Union Congress (FTUC) on the Government’s report. Noting that the Government’s report concerns only legislation on workers’ organizations, the Committee requests the Government to transmit in its next report the text of the Industrial Associations Act which according to the Government regulates employers’ organizations.

The Committee notes with interest that the draft Industrial Relations Bill seems to make considerable progress in resolving several discrepancies between the Trade Unions Act and the Trade Disputes Act on the one hand, and the Articles of the Convention on the other, with regard to the following issues: (a) participation of employers’ representatives in the Trade Union Advisory Committee (comment by the FTUC on section 3(2) and (3) of the Trade Unions Act); (b) trade union monopoly (section 13(1)(e) of the Trade Unions Act); (c) interference with trade unions’ right to specify voting rights in their constitutions and rules (sections 29, 32(1) of the Trade Unions Act); (d) power of the Registrar to institute proceedings in order to restrain a trade union from acting in breach of its rules (section 37(4) of the Trade Unions Act); (e) restrictions on the content of trade union rules concerning financial matters, voting rights and trade union meetings (clauses 15, 19, 21 and 22 of the Schedule to section 37 of the Trade Unions Act); (f) requirement of exhaustive enumeration of the trade union purposes and of the purposes for which trade union funds may be expended, and requirement of minister’s approval for any additional purpose (section 50(2)(t) and clause 3 of the Schedule to section 37 of the Trade Unions Act); (g) age limit of 21 years and literacy requirement for election to trade union office (sections 30 and 31(2) of the Trade Unions Act); (h) prohibition of protest action and sympathy strikes (section 10 of the Trade Disputes Act); (i) power of the minister to refer to compulsory arbitration at his initiative disputes in addition to those concerning essential services (section 6(2)(c) of the Trade Disputes Act); (j) excessively long cooling-off period (section 8 of the Trade Disputes Act); (k) insufficient guarantees of independence and impartiality of mediation, conciliation and arbitration mechanisms (sections 4(1)(d) and (f), 5A, 19 and 20 of the Trade Disputes Act); and (l) the Registrar’s power to cancel or suspend the registration of a trade union for failing to carry out the provisions of its constitution on the protection of the sectional interests of its members (section 14(3)(c) of the Trade Unions Act).

The Committee also notes, however, that certain discrepancies seem to remain or to require clarification, in particular:

Article 2 of the Convention. Prisons service. The Committee observes that section 2(2) of the Trade Unions Act excludes the Fiji Prisons Service from the scope of the Act and section 3(2) of the draft Industrial Relations Bill maintains the same restriction while, according to the FTUC, prison staff is barred from joining or establishing a trade union. The Committee considers that prison staff should enjoy the right to organize as its exclusion is not justified on the basis of Article 9 of the Convention. (General Survey on freedom of association and collective bargaining, 1994, paragraph 56) The Committee requests the Government to consider modifying section 2(2) of the Trade Unions Act and section 3(2) of the draft Industrial Relations Bill so as to lift the exclusion of prison staff from its scope.

Prohibition of membership in more than one trade union. The Committee observes that according to section 21(1) of the Trade Unions Act no person shall be a voting member of more than one trade union. This limitation is maintained in section 129(2) of the draft Industrial Relations Bill. The Committee considers that it would be desirable for workers exercising more than one occupational activity in different occupations or sectors to have the possibility of joining the corresponding trade unions. The Committee requests the Government to consider amending this provision in accordance with the above.

Trade union’s name. The Committee notes that section 12 of the Trade Unions Act provides that the Registrar shall require a change in the name of a trade union if in his or her opinion such name is undesirable and that section 132(2)(iii) of the draft Industrial Relations Bill maintains this power. The Committee considers that this provision gives the Registrar a genuinely discretionary power in this matter. It therefore requests the Government to consider lifting this provision.

Trade union amalgamation. The Committee observes that section 42 of the Trade Unions Act provides that, save with the consent of the Registrar, no registered trade union shall amalgamate while section 46 of the same Act provides that the Registrar’s consent to the amalgamation shall not prejudice or affect in any way the powers vested in him to refuse to register the trade union formed by such amalgamation. The Committee considers that the double requirement of approval (consent to the amalgamation and subsequent granting of registration to the amalgamated trade union) appears to constitute an unnecessarily strict and complicated procedure. The Committee also observes that according to section 132(c)(iii) of the draft Industrial Relations Bill, the Registrar may refuse to register an amalgamated union for "valid objections". In the Committee’s view, all these provisions give the Registrar a genuinely discretionary power which amounts to a requirement of previous authorization. The Committee requests the Government to consider amending sections 42 and 46 of the Trade Unions Act and section 132(c)(iii) of the draft Industrial Relations Bill.

Article 3 of the Convention. Trade union ballots. The Committee notes that pursuant to Clause 13 of the Schedule to section 37 of the Trade Unions Act, trade union decisions on matters like the election of officers, the alteration of the union’s rules, strikes, the dissolution of the union, the amalgamation of the union with another trade union, the federation of the union with any other trade union or with a trade union federation, and the imposition of levies must be adopted through secret ballots. In this respect, sections 10(1) and 10A(a) of the Trade Unions Regulations as amended by the Trade Unions Regulations (Amendment) Regulations 1991 provide that the ballot shall be conducted with the supervision of the Registrar of Trade Unions who shall be notified of the intention to hold the ballot at least 21 days in advance. The Committee considers that provisions which allow the administrative authorities to supervise trade union ballots, in particular by requiring the prior notification and presence of representatives of the administration during the vote, give the authorities permanent powers of supervision over trade union ballots and constitute interference contrary to Article  3 of the Convention. The Committee takes due note of section 279 of the draft Industrial Relations Bill which provides that the Trade Unions Act shall be repealed upon its entry into force. The Committee requests the Government to confirm that secondary legislation, like the Trade Unions Regulations (especially sections 10(1) and 10A(a)) shall no longer be enforced once the Trade Unions Act has been repealed. Moreover, noting that under section 278(s) of the draft Industrial Relations Bill, the minister may make regulations in the future on the conduct of secret ballots by registered trade unions, the Committee requests the Government to ensure that any future regulations do not involve any interference in trade union elections.

Sanctions for refusal to participate in an unlawful strike. The Committee observes that sections 13 of the Trade Unions Act and 187(1) of the draft Industrial Relations Bill provide that no person refusing to take part in an unlawful strike shall be subject to expulsion from a trade union or to deprivation of any right or benefit to which he or she is entitled, or placed in a disadvantage as compared with other members of the organization, notwithstanding anything to the contrary in the constitution or rules of an organisation. The Committee considers that this issue should be up to trade union constitutions and rules to determine and that the above provisions constitute interference by the authorities in trade union activities. The Committee requests the Government to lift these provisions.

Occupational requirement. The Committee observes that according to section 31(1) of the Trade Unions Act, all trade union officers should have been and still be engaged or occupied for a period of not less than one year in an industry, trade or occupation with which the union is directly concerned while, according to subparagraph (b), the Registrar may, in his discretion, permit the office of treasurer to be filled by a person not fulfilling this requirement. The Committee considers that provisions which require all candidates for trade union office to belong to the respective occupation, or to be actually employed in this occupation, either at the time of their candidature or during a certain period before their election, are contrary to the guarantees set forth in the Convention. The Committee further notes that the provisions of the draft Industrial Relations Bill contain a less stringent occupational requirement as section 136(1)(a) provides that officers should have been engaged in the specific trade or occupation for not less than six months while section 136(2) excludes from this requirement the secretary and treasurer. In order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization rather than specific posts (General Survey, op. cit., paragraph 117). Moreover, the possibility of deviating from this rule upon the Registrar’s decision, entails a risk of arbitrary interference in the process of trade union elections. The Committee therefore requests the Government to take measures so as to relax the occupational requirement even further by excluding from it a certain percentage of trade union officials rather than specific posts.

Power to examine trade union books at any time. The Committee observes that section 53(1) of the Trade Unions Act provides that every treasurer of a trade union shall at any time at which he may be required to do so by the Registrar, render to the Registrar a just and true account of all moneys received and paid by him during his period in office while section 57(1) provides that the Registrar may at any time call upon the treasurer or other officers to render, within seven days, detailed accounts in writing of the funds of the trade union or any branch thereof. Section 57(2) provides that any officer of a trade union who fails to comply with such a request by the Registrar shall be guilty of an offence and liable to a fine or/and imprisonment. The Committee also observes that section 137(2) of the draft Industrial Relations Bill provides that the minutes on financial matters, the list of members and other documents must be open to inspection by the Registrar during normal business hours while section 137(3) enables the Registrar to request accounts in writing at any time. The Committee considers that serious problems of compatibility with the Convention arise when the administrative authority has the power to examine the books and other documents of an organization, conduct an investigation and demand information at any time. Such verifications should be limited to exceptional cases, for example, in order to investigate a complaint, or if there have been allegations of embezzlement. Both the substance and procedure of such verifications should moreover be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity. (General Survey, op. cit., paragraphs 125 and 126). With regard to the provision that trade union officers will face imprisonment if they do not comply with the orders of the Registrar, the Committee notes that penalties should not be imposed in cases of non-respect of a law which is itself contrary to freedom of association principles and should not be disproportionate to the gravity of the offence. The Committee therefore requests the Government to lift the provisions of sections 53(1) and 57(1) of the Trade Unions Act and sections 137(2) and (3) of the draft Industrial Relations Bill as well as section 57(2) of the Trade Unions Act.

Strike ballots. The Committee notes that section 10B(i) of the Trade Unions Regulations provides that, as soon as is reasonably practicable after a strike ballot, the union shall take the necessary action to ensure that all those entitled to vote have voted and the Registrar is informed of the outcome. The Committee considers that although a requirement of a strike ballot does not, in principle, raise problems of compatibility with the Convention, the ballot method, 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. (General Survey, op. cit., paragraph 170). Thus, the Committee considers that the legality of the ballot should not depend on whether all trade union members actually voted if appropriate quorum requirements applied and all members were given a reasonable opportunity to vote. The Committee requests the Government to confirm that the provisions of section 10B(i) of the Trade Unions Regulations will no longer be enforced once the Trade Unions Act has been repealed by virtue of the adoption of the draft Industrial Relations Bill and to ensure in the future that strike ballots can take place without any undue obstacles.

Responsibility for declaring a strike unlawful. The Committee observes, that under sections 8-10A of the Trade Disputes Act, the minister may declare a strike unlawful where it appears to him or her that certain conditions have not been fulfilled. The Committee considers 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, the Committee notes that it is not clear whether the draft Industrial Relations Bill rectifies this discrepancy as its sections 183-185 do not indicate the body which is competent to declare a strike unlawful. The Committee requests the Government to amend sections 8, 9, 10 and 10A of the Trade Disputes Act and sections 183-185 of the draft Industrial Relations Bill so as to ensure that responsibility for declaring a strike illegal rests with an independent body (i.e. the courts) which has the confidence of the parties involved.

Compulsory arbitration. The Committee observes that according to section 6(2)(a) of the Trade Disputes Act, the minister may decide to refer a dispute to compulsory arbitration, whether or not the parties consent, where a strike has been declared by the minister to be unlawful under section 8. Section 8 provides that the minister may declare a strike unlawful within 42 days from the receipt of the report of the dispute if he or she considers that all practicable means of reaching a settlement of the dispute (either through the procedure laid down in the registered agreement or under the provisions of the Act) have not been exhausted. The Committee considers that these provisions entail the possibility of referring virtually all strikes to compulsory arbitration at the initiative of the minister thereby prohibiting strikes in all sectors. The Committee also observes that section 213(1) of the draft Industrial Relations Bill provides that in case of an industrial dispute, one of the parties may bring the issue before the Labour Court for decision at the first instance while section 213(2)(b) and (c) provides that the Labour Tribunal may decide to transfer the proceedings to the Labour Court if it is in the public interest to do so given the case’s nature and urgency or if it is of the opinion that no purpose is served by mediation. The Committee recalls that a regime of compulsory arbitration is acceptable under the Convention only where it applies, either 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. The Committee requests the Government to amend section 6(2)(a) of the Trade Disputes Act and section 213 of the draft Industrial Relations Bill so as to limit the regime of compulsory arbitration to cases where it is compatible with the Convention.

Essential services. The Committee observes that the essential services list provided in the Schedule to section 2 of the Trade Disputes Act (as enlarged by the Trade Disputes Act (Amendment) Decree No. 27 of 1992) includes meteorological services, mine pumping ventilation and winding, air transport, port and docks services including stevedoring and lightering, loading and unloading cargo from or onto any ship and despatch of any cargo to destination, transport services necessary to the operation of the aforementioned services, and the tourism industry. The Committee further observes that, according to section 6(2)(b), the minister may decide to refer such services to compulsory arbitration and to prohibit any strike in connection with such services. In addition to this, the Committee further observes that the draft Industrial Relations Bill does not include in the list of essential services the meteorological services, and the mine pumping ventilation and winding services while it is not clear whether compulsory arbitration can be imposed on essential services under the draft Bill. The Committee considers that essential services in which the right to strike may be restricted or even prohibited are only those the interruption of which would endanger the life, personal safety or health of the whole or part of the population (General Survey, op. cit., paragraph 159). The above list does not seem to fit into this definition, even if one takes into account the special circumstances existing in islands which are heavily dependent on services like, for instance, the port or maritime transport services, in order to provide basic supplies to the population (General Survey, op. cit., paragraph 160). In order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes, the authorities could establish a system of minimum service in other services which are of public utility, rather than impose an outright ban on strikes, which should be limited to essential services in the strict sense of the term (General Survey, op. cit., paragraph 160). The Committee therefore requests the Government to envisage further restricting the list of essential services in which the right to strike may be prohibited. The Committee reminds the Government that, given its specific circumstances, minimum services could be envisaged for certain of the services on that list.

Prison sentences. The Committee observes that section 10A(b) of the Trade Unions Regulations provides that any strike action taken before the result of a strike ballot has been declared shall be deemed unlawful and an offence punishable by a fine or a term of imprisonment not exceeding 12 months or both. The Committee considers that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. Even in such cases, the application of disproportionate penal sanctions does not favour the development of harmonious and stable industrial relations. If measures of imprisonment are to be imposed at all, they should be justified by the seriousness of the offences committed (General Survey, op. cit., paragraph 177). The Committee further observes that, under section 278(3) of the draft Industrial Relations Bill, penalties for violating the regulations issued by the minister, including on secret ballots, may include imprisonment of up to 12 months. The Committee requests the Government to ensure that section 10A(b) of the Trade Unions Regulations shall no longer be enforced once the Trade Unions Act has been repealed by virtue of the adoption of the Industrial Relations Bill and to ensure in the future that measures of imprisonment are only imposed for penal violations, are justified by the seriousness of the offences committed and are accompanied by sufficient judicial safeguards.