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

Individual Case (CAS) - Discussion: 2002, Publication: 90th ILC session (2002)

A Government representative stated that the Government had been slow to respond to the Committee due to the devastating upsets to the economy and the country in 1987 and more recently in the year 2000, which required the Government's full attention to restore economic growth in the shortest possible time. Consequently, many statutory bodies were unable to meet, including the Labour Advisory Board, a tripartite body of workers, employers and the Government. Nonetheless, the speaker reassured the Committee of his Government's commitment to the supervisory functions of the ILO and untiring resolve to fulfil its obligations under the ILO Constitution.

The speaker declared that the observations of the Committee of Experts concerning Convention No. 98 were factually inaccurate and did not reflect the developments in Fiji over the past decade. The Government had taken serious remedial actions to ensure full compliance with the provisions of the Convention.

Referring to Article 2 of the Convention, dealing with the protection of workers' organizations against acts of interference, the speaker stated that section 33 of the 1997 Constitution provided guarantees for the existence of trade unions and the rights of workers to join trade unions of their own choosing. This was reflected in the recent ratification of Convention No. 87 and in current law and practice as provided for in section 59 of the Trade Union Act, which protects the rights of workers to join trade unions and makes it an offence for an employer in any way to prevent the setting up of trade unions in their workplaces. There was absolutely no interference by the Government or the employers' organizations in the existence and of pursuit trade union activities.

The speaker then turned to Articles 3 and 4 of the Convention and the comments of the Committee of Experts in regard to Vatukoula Joint Mining Company. The speaker stated that the Company had requested a judicial review of the Commission of Inquiry report and as such, a stay of execution order issued by the High Court remained in place. The Government had decided to have the order struck and legal proceedings had already commenced. The Committee would be informed in due course of the Court's decision.

The observation of the Committee of Experts stated that the Trade Union Recognition Act was silent as to the position of a union that did not represent at least 50 per cent of the employees in a bargaining unit. This may have been the case with the old legislation on recognition, but it was repealed in 1998 when the new Trade Union Recognition Act was enacted. The new Trade Union Recognition Act, 1998 provided recognition of minority unions for the purposes of collective bargaining. The Government had also made provisions for the protection of workers during the period in which recognition was sought. Under the Trade Disputes Act, trade unions had the right to use the trade dispute machinery if their members were terminated during the period in which recognition was sought.

Referring to the Committee's criticism of the Counter-inflation Remuneration Act, the speaker stated that this restriction had been lifted more than ten years ago and collective bargaining was freely undertaken. It was necessary only to enable the economy to achieve stability after the period of political upheaval.

In conclusion, the speaker reiterated that the Government of Fiji was fully committed to ensuring that workers' rights were protected, that collective bargaining was promoted and that the Convention was applied both in law and in practice.

The Worker members began by noting that several encouraging developments had taken place regarding the right to organize and collective bargaining, specifically mentioning the settlement of a long-outstanding dispute between Airports Fiji Limited and the Fiji Public Service Association.

The Worker members observed that this case involved four distinct violations of Convention No. 98: the Government's failure to adopt measures adequately protecting workers' organizations from acts of interference by employers or their organizations; weaknesses in the legislation relating to union recognition; the Government's failure to secure employer recognition and respect for the workers' right to organize in the Vatukoula Joint Mining Company; and restrictions on the right of unions to negotiate wage increases. These violations had been discussed by the Committee of Experts over a period exceeding ten years, and the fact that the Committee of Experts had repeated its requests several times underlined that little progress had been achieved.

With respect to Fiji's violation of Article 2 of the Convention, they stated that the Government had yet to institute measures protecting trade unions from employer interference, in spite of repeated requests by the Committee of Experts to do so, and that over this period of inaction companies had sponsored in-house unions in order to dilute the power of independent trade unions. Noting the Government's statement that a report on labour reforms would be produced by the Labour Advisory Board later this year, they called upon the Government not to procrastinate any further on this matter and expressed the hope that the report would fully address their concerns regarding employer interference in the right to organize.

The Government's lack of political will to ensure the rights enshrined in Convention No. 98 was further reflected in the lack of progress respecting the Vatukoula Joint Mining Company and its alleged violations of Articles 3 and 4 of the Convention. They expressed frustration with the fact that the High Court had yet to hear this case on its merits, although ten years had passed since the Court invalidated a compulsory recognition order against the company, and stated that this persistent delay also reflected a weakness in the legislation respecting labour rights violations.

In regards to section 10 of the Counter-inflation Remuneration Act, which restricts the right of unions to negotiate wage increases, they noted that the Committee of Experts had deemed this provision inconsistent with Article 4 of the Convention and urged the Government to take corrective action on this matter.

They concluded by calling for greater efforts from the Government to ensure compliance with Convention No. 98, including the adoption of provisions penalizing employers for violations of the right to organize.

The Employer members noted the lack of measures to guarantee adequate protection to workers' organizations against acts of interference by employers or their organizations. The report of the subcommittee of the Labour Advisory Board of 1996 which addressed the issue was not available, and the Government representative had not provided any information. Neither had the Government provided a court decision on the refusal by a mining company to recognize an independently registered union. They observed a lack of willingness by the Government to collaborate with the ILO. As to the requirement to represent at least 50 per cent of the employees in a bargaining unit, the Government had indicated that the Act providing for this requirement had been amended in 1998, without, however, providing any details in this respect. With regard to the possible interference of the Price and Incomes Board in relation to collective agreements already in place, the Government had indicated that the relevant Act had been suspended. They wondered whether the remuneration guidelines nevertheless remained applicable. Moreover, the Government had not indicated the criteria according to which interference by the Price and Incomes Board was permitted. Limitations on voluntary collective bargaining were not completely excluded. However, they had to be subject to strict criteria which were verifiable. In conclusion, the Employer members called on the Government to provide the necessary information in a comprehensive report to the ILO, which was long overdue. The Employer members observed that the discussion had not brought up new elements. Therefore, they referred to their initial statement and urged the Government to report without any delay to the ILO on legislative changes already undertaken or envisaged in order to bring its legislation in line with the requirements set forth in the Convention.

The Employer member of Fiji reassured the Committee that the Employers supported the Government's statement and were satisfied with the consultative process. The Government had been democratically elected, and tripartite principles had been adhered to, in compliance with the law. In the speaker's opinion, the actions of some trade unionists created a conflict between genuine trade union issues and the political agenda of others who took extreme positions in order to discredit the legitimate trade union movement and harm the economy.

The Government representative stated that the Committee of Experts' observation was mainly of historical importance as the Government was making a fresh start. He supported the Employer members' comments. The difficulties of the last few years were due to the inability of the Labour Advisory Board to obtain a quorum; but two meetings had been held recently, and another is scheduled for next month. The Government would therefore be able to give a more detailed report by August. As to the ruling of the High Court and the delay in ruling on the case, this was outside the Government's control. Finally, the speaker stated that the Government intended to undertake a tripartite review of legislation to move forward on these issues.

The Worker members expressed unhappiness at the Employer member of Fiji's comments on the trade unions as these fell outside the Committee's deliberations. They stated that since no new points had been made in the Government's oral reply, they must repeat their call for a detailed report and government action as soon as possible to bring the law and practice into conformity with the Convention. The Government was democratically elected; therefore it had a moral imperative to put into place structures to strengthen democracy in the workplace.

The Committee took note of the statement made by the Government representative and the discussion which ensued. It observed that the comments of the Committee of Experts dealt with Article 2 of the Convention, concerning protection against acts of interference, and Article 4 concerning promotion of collective bargaining. The Committee regretted that the Government did not send a report for examination by the Committee of Experts at its last meeting. The Committee expressed the firm hope that measures would be taken without delay for the full protection of workers' and employers' organizations from acts of interference and to enable workers' organizations to bargain collectively with employers and their organizations with a view to regulating their terms and conditions of employment. It asked the Government to take measures to permit organizations representing less than 50 per cent of workers to participate in collective bargaining. The Committee urged the Government to provide detailed information in its next report, in particular as concerns the measures taken to ensure that the Convention is fully applied, both in law and in practice.

Individual Case (CAS) - Discussion: 1996, Publication: 83rd ILC session (1996)

A Government representative, in setting the context for the case, noted that Fiji had ratified the Convention in 1974 when it first became a Member of the ILO. Fiji had been a British colony until achieving its independence in 1970. Before then, the Convention had been applied in Fiji as a non-metropolitan territory. Since independence, the country had ratified 17 Conventions and adapted its law and practice accordingly in order to ensure full compliance. However, the size of the national economy and the nature of its society made Fiji very vulnerable to external shocks. In 1991 the Government had introduced a system of labour reforms as part of an economic package which included structural adjustment measures. The purpose of the labour reforms was to create a stable industrial relations environment conducive to investment. The changes were designed to facilitate the rapid resolution of industrial disputes; ensure that union members had full control over the behaviour of their leaders; guarantee that negotiations between the social partners were conducted in a responsible manner, with the use of strikes only in the last resort, as disruptive strikes caused severe production losses and damaged future prosperity; and ensure that all employees enjoyed the right to organize in trade unions of their choice and that all unions enjoyed the right to use industrial relations machinery to further their interests. However, the Ministry of Labour and Industrial Relations had found it costly and in many instances impracticable to administer the changes. It had therefore prepared a paper on this subject to be discussed by the meeting of the Labour Advisory Board scheduled for early July.

On the subject of the Tripartite Forum, he informed the Committee that it had been reactivated in April 1995 and that its terms of reference had been finalized. It was chaired by the Minister of Labour and Industrial Relations and would meet after the Conference. The Tripartite Forum would not decide on wage guidelines, but would discuss wider social and economic issues, such as productivity and human resources development. In 1995, the social partners had adopted a Productivity Charter and a Programme of Action on Human Resources Development. It was envisaged that the Tripartite Forum would be the vehicle for the implementation of those programmes.

With reference to the observation by the Committee of Experts, he noted that the report of the inquiry concerning the refusal by the Vatukoula Joint Mining Company to recognize a union had not yet been released. It was subject to judicial review and the Committee would be kept informed once the judicial process had been completed.

Referring to the comments of the Committee of Experts concerning the multiciplicity of unions, he noted that the 1991 labour reforms had included an amendment to the Trade Unions Act which had resulted in an influx of registrations of unions, with certain unions being created along racial or political lines, as well as the registration of breakaway groups from existing major unions. Some unions had even been registered to cater for landowners, such as in the hotel industry. As a result, certain employers, including the Fiji Electricity Authority and the Civil Aviation Authority, had to deal with more than one union. This had led to the establishment of different working conditions, some of which were more favourable than others, which would ultimately lead to worker dissatisfaction and management problems. If steps were not taken soon, the trade union movement might become fragmented into pressure groups for purposes other than industrial relations. It was for that reason that the Government had not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), since it was prudent for the long-term development of the industrial relations system that the Government should foster the growth of a healthy organization of trade unions and the concept of tripartism. For the purposes of collective bargaining, it was proposed that employers would deal with the union that had over 50 per cent of the total number of workers in its membership. Although the details had not been finalized, the objective was to encourage the merger of unions for collective bargaining purposes. Finally, he noted that section 10 of the Counter-Inflation (Remuneration) Act had not been amended in view of the need for the Government to be able to control spiralling wages. That arrangement had the blessing of the social partners, as it was for the benefit of all that the results of the structural adjustment programme should be evenly distributed.

The Employers' members noted that the Committee of Experts' observation related to protection of freedom of association and the process of collective bargaining. Although they agreed that in this case freedom of association was not protected adequately, they did not concur with the call made by the Committee of Experts for the establishment of sanctions, since the form taken by such protection could differ from country to country. Although the details of the case were not clear, the Government could obviously take further measures to improve the protection of freedom of association. With regard to the promotion of a free system of collective bargaining, the Employers' members noted the statement by the Government representative that the Tripartite Forum had been reactivated and would examine a greater number of subjects. The effectiveness of this measure would be seen in the future. Referring to the situation of more than one trade union being active in a particular enterprise, they noted that if unions were only able to negotiate on behalf of their members when they covered more than 50 per cent of the employees in the enterprise, the result would probably be the elimination of certain trade unions from collective bargaining. The Employers' members agreed with the emphasis placed by the Government representative on the need for financial and other forms of stability. However, it was not ideal when States intervened to restrict prices and remuneration, since such intervention encouraged further interference, leading to the opposite of what was known as a market economy. It would therefore be better, if such intervention were considered necessary, for it to be limited in scope and time, and particularly for a situation to be achieved in which intervention was not necessary in collective bargaining. Without proposing any precise measures, the Employers' members considered that the Government needed to make further efforts to promote free collective bargaining.

The Workers' members noted that, in contrast with cases in which force had been used to restrict the right of workers to organize and bargain collectively, in this case, more insidious, but less physically violent methods were being used to undermine and significantly reduce, if not eliminate altogether, unionization and collective bargaining. Taken together, the violations of the Convention noted by the Committee of Experts clearly demonstrated the Government's aim of undermining the right to collective bargaining. Employer interference in trade union activities in Fiji took a number of forms. These included refusing to recognize independent trade unions, resorting to legal procedures to delay recognition of trade unions, and misusing an amendment to the Trade Union (Recognition) Act, originally requested by the Committee of Experts, to encourage the fragmentation of workers' organizations in order to render them ineffectual. The Government interfered in the affairs of workers' organizations through its supervision of secret ballots, which contributed to the creation of an atmosphere of intimidation, and through its use of section 10 of the Counter-Inflation (Remuneration) Act, which the Committee of Experts had considered not to meet the criteria for acceptable limitations on voluntary collective bargaining. The power of the Government, supported by legislation, to interfere in the outcome of collective bargaining struck at the heart of the right to bargain freely.

The Workers' members emphasized that the progress that was supposed to have been made in meeting the requirements of the Convention amounted to no more than superficial changes. With reference to the reactivation of the Tripartite Forum, they noted that it had been re-established in a very weak form in comparison to its predecessor. It had not been convened to address any of the subjects proposed by the Fiji Trades Union Congress. In conclusion, the Workers' members stated that the Government had now, since the adoption of the conclusions of the Committee on Freedom of Association, had over four years in which to develop an industrial relations framework that reflected the requirements of the Convention. They therefore strongly supported the request by the Committee of Experts that the Government should report in detail in 1996 so that the Experts and the Conference Committee could further examine the situation next year.

The Workers' member of Fiji emphasized that the objective of the so-called labour reforms was to gradually cripple the trade union movement and polarize workers on racial and cultural grounds in order to fragment their solidarity. The Committee on Freedom of Association had requested the Government to revoke the provisions of the so-called 1991 labour reforms, introduced by an unelected Government, in order to restore trade union rights. However, despite the assurances given by the Government to the ILO and to national and international trade union organizations that it would amend the provisions that were in violation of the Convention, it had not honoured its promises and would not do so until firmly sanctioned by the international community. He recalled that in a multi-cultural society, the trade union movement had been the main means of bringing the different communities together. Now it was operating in a hostile environment. Even though majority unions existed, employers were permitted to recognize minor unions in order to destabilize the movement. Trade unions could not make use of trade dispute machinery until recognition was granted. Organization was made very difficult by the fact that employers terminated the employment of trade union members or demanded that they withdrew their union membership. The garment industry, in which the workers were mainly women, was notorious for this type of action. The reactivated Tripartite Forum was merely a front to gain international respectability. In 1994, the Minister had adopted an Order abolishing collective bargaining, although he had had to withdraw it when confronted by the strong protests of the unions. However, the other legislation in force constituted a perpetual threat to collective bargaining. In conclusion, although the Government repeatedly claimed that measures were being taken, the legislation that had been found to be in violation of basic trade union rights had now been in force for five years.

The Workers' member of the United Kingdom stressed that ILO supervisory bodies had held that employers should recognize for collective bargaining purposes the organizations representative of their employees. Referring more specifically to the situation pertaining to the Fiji Mineworkers' Union (FMU) and the Vatukoula Joint Mining Company, he indicated that the company had established an in-house union which made it very difficult for the FMU to establish itself. Similarly, another company, Shell Fiji Limited, had announced its intention to withdraw recognition from the union operating within the company and encouraged personal contracts for employees. Irrespective of the pressure exerted by private companies, it was the Government's responsibility to take its obligations under the Convention seriously and ensure that collective bargaining was promoted and not undermined.

With regard to the amendment to the Trade Union (Recognition) Act extending collective bargaining rights to all unions in a bargaining unit where none of them covered 50 per cent of the employees in this unit, the speaker pointed out that although this was in line with Convention No. 98, this should be seen in the context of the broader industrial and economic environment in Fiji. This situation was in fact being used to promote excessive fragmentation of unions, along racial lines and with the intent of undermining effective trade union organization. The speaker further wondered whether the amendments to the above Act would be applicable to enterprises in free trade zones in Fiji.

The Workers' member of South Africa first of all expressed serious concern that the application of Fiji's labour legislation encouraged the registration of trade unions along racial and political lines. Secondly, Legal Notice No. 58 of 1991 allowed the Registrar of Trade Unions to supervise a secret ballot being held by a union and to nullify the results of such a ballot if irregularities were detected. This constituted unacceptable interference in trade union affairs. Lastly, the problems discussed here today as well as violations of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) dated from a series of labour decrees introduced in 1991. In 1992, the ILO Governing Body Committee on Freedom of Association (CFA) made recommendations to the Government to bring these laws into line with ILO standards. Although the Government made minor amendments in 1993, the most offensive provisions of the legislation remained. The Fiji Trade Union Congress (FTUC) had for several years been trying to negotiate with the Government so that the recommendations of the CFA were implemented. To date, the Tripartite Forum had not discussed any substantive issues in this respect. Therefore she appealed to the Government to negotiate with the FTUC in good faith within the framework of a genuinely reactivated Tripartite Forum to bring national legislation into line with ILO standards.

The Government representative noted the observations that had been made and gave assurances that the appropriate changes would be made. However, he clarified that the amendment to the Trade Union (Recognition) Act, regarding the multiplicity of unions in one undertaking which were all granted bargaining rights, had been made to comply with Convention No. 98.

The Employers' members noted two points regarding protection against acts of interference and promotion of collective bargaining, considering that legislation must express the obligations and provide sanctions in cases of failure to comply. The Employers' members were of the opinion that solutions other than sanctions (civil actions or other legal proceedings) existed to ensure efficient protection against interference and for the promotion of collective bargaining. Thus, in a certain country, the legislation did not include any such provision, but any union could take action. It was, moreover, in this spirit that Convention No. 98 specifically mentioned that "measures appropriate to national conditions" must be taken.

The Workers' members clarified that with respect to sanctions, in some cases, it was not only penal sanctions but indeed civil sanctions that were appropriate. Concerning the second point, they emphasized that the Convention required the active promotion of collective bargaining. It was on this point that they were seeking to encourage the Government to move forward as rapidly as possible.

The Committee noted the oral information provided by the Government representative and the subsequent discussion in the Committee. The Committee noted that the Committee of Experts required the Government to provide additional information to enable the Committee to review to what extent discrepancies between national legislation and Articles 2, 3 and 4 of the Convention had been eliminated. The Committee also noted the Government's indication that the Tripartite Forum would meet again in the near future in order to review economic and social matters. In that connection, the Committee expressed the firm hope that the next report would explain in detail measures effectively taken by the Government in order to guarantee to workers' organizations adequate protection against acts of interference by employers and to lift restrictions on voluntary negotiation of collective agreements contained in the Counter-Inflation (Remuneration) Act of 1985. The Committee trusted that it would be able to note in the very near future concrete progress had been made enabling full compliance with the Convention.

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 this year (see Article 4 below), 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 of the Fiji Trades Union Congress (FTUC) received on 23 August 2018, and 23 May and 13 November 2019, denouncing massive dismissals of workers, including members of the National Union of Workers (NUW), restrictions on collective bargaining, especially in the public sector and essential services, and lack of progress on the legislative reform. The Committee notes the Government’s reply thereto. In its previous comment, the Committee also requested the Government to provide a reply to the 2016 observations from Education International and the Fiji Teachers’ Union (FTU) concerning the lack of consultation in regard to wages and terms and conditions of employment. The Committee notes the Government’s reply that it has been continuously meeting with representatives of the FTU and the Fijian Teachers’ Association (FTA) in relation to the terms and conditions of employment, including in November 2018 and February 2019.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. With reference to the long-standing dispute in relation to the Vatukoula Mining Company (concerning the refusal to recognize a union and the dismissal of striking workers over 20 years ago), the Committee recalls that, in its previous comments, it had noted the Government’s indication that the Vatukoula Social Assistance Trust Fund (VSATF) had been established to benefit around 800 recipients through money grants and assistance for relocation, small and microenterprise development and education for dependants. The Committee noted the completion of a mediation process and requested the Government to supply detailed information on its outcome and the follow-up measures taken to compensate the persons concerned, as well as in relation to the VSATF fund. The Committee notes the Government’s indication that, following the mediation process and keeping in mind that it does not have any legal obligation to compensate the concerned workers, it is considering making an ex gratia payment to the workers in view of resolving their grievances but that this will require Cabinet approval. The Committee observes, however, that the Government does not provide any details as to the actual outcome of the mediation or the use of the VSATF fund. Recalling that this long-standing dispute has caused great hardship to the dismissed workers, the Committee expects that it will be finally and equitably resolved through the implementation of a mutually satisfactory settlement. The Committee requests the Government to supply information on the outcome of the mediation process and any compensation granted to the concerned workers, including any recourse to the VSATF fund. It also invites the Fiji Mine Workers’ Union (FMWU) to provide information on any developments in this regard.

Article 4. Promotion of collective bargaining. In its previous comment, the Committee welcomed the repeal of the Essential National Industries (Employment) Decree, 2011 (ENID) through the adoption of the Employment Relations (Amendment) Act, 2015, as well as the removal of the concept of bargaining units from the Employment Relations Promulgation, 2007 (hereinafter Employment Relations Act (ERA)) through the Employment Relations (Amendment) Act, 2016. The Committee noted with regret however that the abrogation by ENID of the collective agreements in force which it had considered contrary to Article 4, had not been addressed and requested the Government to engage in consultations with the representative national workers’ and employers’ organizations with a view to exploring a mutually satisfactory solution in this respect. The Committee notes the Government’s indication that it has provided the necessary conditions under section 149 of the ERA for trade unions and employers’ organizations to engage in good faith employment relations. It indicates that, between 2016 and 2018, there has been successful bargaining between employers and workers resulting in the signing of 63 collective agreements and 59 amendments to collective agreements and that, between August 2019 and September 2020, the Ministry of Employment, Productivity and Industrial Relations registered 20 collective agreements and processed 46 disputes filed by trade unions, including on allegations of failure to engage in negotiations or to implement collective agreements and unfair dismissal of trade union representatives. The Committee observes, however, that, according to the FTUC: (i) all negotiations have been reverted to zero instead of using the abrogated agreements as a basis for discussion; (ii) the topics that can be negotiated in the local Government sector are severely restricted; and (iii) there is a continued refusal of the Government to engage in collective bargaining in the public sector. The FTUC also denounces that all Government-owned entities, including those employing teachers, nurses and civil servants, insist on imposing individual fixed-term contracts without any consultation with the unions, as a way of undermining the right of workers to bargain collectively and achieving the goals of the abrogated ENID. In light of the above, the Committee requests the Government to continue to take concrete measures to facilitate negotiations and promote collective bargaining between workers and employers or their organizations in the public sector so as to create an enabling environment for collective agreements to be concluded in replacement of those abrogated by ENID. It also requests the Government to continue to provide information on the number of collective agreements concluded and in force, the sectors concerned and the number of workers covered by these agreements, as well as on any additional measures undertaken to promote the full development and utilization of collective bargaining under the Convention.

Compulsory arbitration. In its previous comment, the Committee noted that sections 191Q(3), 191(R), 191(S) and 191AA(b) and (c) of the ERA, as amended in 2015, allowed for compulsory conciliation or arbitration and requested the Government to take measures to review the above provisions with a view to their amendment so as to bring the legislation into full conformity with the Convention. The Committee notes the Government’s statement that the Minister for Employment, Productivity and Industrial Relations conducts compulsory arbitration only where he or she considers that the dispute may be resolved by conciliation and that one such dispute has been resolved through compulsory conciliation in 2018. The Government informs that the Employment Relations Advisory Board (ERAB) will review the relevant laws and consider any appropriate amendments. The Committee recalls once again that compulsory arbitration is contrary to the voluntary nature of collective bargaining and is only acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention) or in essential services in the strict sense of the term or in cases of acute national crisis. The Committee expects that the above provisions of the ERA will be reviewed within the ERAB, in accordance with the agreement in the Joint Implementation Report 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.

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 this year (see Article 4 below), 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 of the Fiji Trades Union Congress (FTUC) received on 23 August 2018, and 23 May and 13 November 2019, denouncing massive dismissals of workers, including members of the National Union of Workers (NUW), restrictions on collective bargaining, especially in the public sector and essential services, and lack of progress on the legislative reform. The Committee notes the Government’s reply thereto. In its previous comment, the Committee also requested the Government to provide a reply to the 2016 observations from Education International and the Fiji Teachers’ Union (FTU) concerning the lack of consultation in regard to wages and terms and conditions of employment. The Committee notes the Government’s reply that it has been continuously meeting with representatives of the FTU and the Fijian Teachers’ Association (FTA) in relation to the terms and conditions of employment, including in November 2018 and February 2019.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. With reference to the long-standing dispute in relation to the Vatukoula Mining Company (concerning the refusal to recognize a union and the dismissal of striking workers over 20 years ago), the Committee recalls that, in its previous comments, it had noted the Government’s indication that the Vatukoula Social Assistance Trust Fund (VSATF) had been established to benefit around 800 recipients through money grants and assistance for relocation, small and microenterprise development and education for dependants. The Committee noted the completion of a mediation process and requested the Government to supply detailed information on its outcome and the follow-up measures taken to compensate the persons concerned, as well as in relation to the VSATF fund. The Committee notes the Government’s indication that, following the mediation process and keeping in mind that it does not have any legal obligation to compensate the concerned workers, it is considering making an ex gratia payment to the workers in view of resolving their grievances but that this will require Cabinet approval. The Committee observes, however, that the Government does not provide any details as to the actual outcome of the mediation or the use of the VSATF fund. Recalling that this long-standing dispute has caused great hardship to the dismissed workers, the Committee expects that it will be finally and equitably resolved through the implementation of a mutually satisfactory settlement. The Committee requests the Government to supply information on the outcome of the mediation process and any compensation granted to the concerned workers, including any recourse to the VSATF fund. It also invites the Fiji Mine Workers’ Union (FMWU) to provide information on any developments in this regard.

Article 4. Promotion of collective bargaining. In its previous comment, the Committee welcomed the repeal of the Essential National Industries (Employment) Decree, 2011 (ENID) through the adoption of the Employment Relations (Amendment) Act, 2015, as well as the removal of the concept of bargaining units from the Employment Relations Promulgation, 2007 (hereinafter Employment Relations Act (ERA)) through the Employment Relations (Amendment) Act, 2016. The Committee noted with regret however that the abrogation by ENID of the collective agreements in force which it had considered contrary to Article 4, had not been addressed and requested the Government to engage in consultations with the representative national workers’ and employers’ organizations with a view to exploring a mutually satisfactory solution in this respect. The Committee notes the Government’s indication that it has provided the necessary conditions under section 149 of the ERA for trade unions and employers’ organizations to engage in good faith employment relations. It indicates that, between 2016 and 2018, there has been successful bargaining between employers and workers resulting in the signing of 63 collective agreements and 59 amendments to collective agreements and that, between August 2019 and September 2020, the Ministry of Employment, Productivity and Industrial Relations registered 20 collective agreements and processed 46 disputes filed by trade unions, including on allegations of failure to engage in negotiations or to implement collective agreements and unfair dismissal of trade union representatives. The Committee observes, however, that, according to the FTUC: (i) all negotiations have been reverted to zero instead of using the abrogated agreements as a basis for discussion; (ii) the topics that can be negotiated in the local Government sector are severely restricted; and (iii) there is a continued refusal of the Government to engage in collective bargaining in the public sector. The FTUC also denounces that all Government-owned entities, including those employing teachers, nurses and civil servants, insist on imposing individual fixed-term contracts without any consultation with the unions, as a way of undermining the right of workers to bargain collectively and achieving the goals of the abrogated ENID. In light of the above, the Committee requests the Government to continue to take concrete measures to facilitate negotiations and promote collective bargaining between workers and employers or their organizations in the public sector so as to create an enabling environment for collective agreements to be concluded in replacement of those abrogated by ENID. It also requests the Government to continue to provide information on the number of collective agreements concluded and in force, the sectors concerned and the number of workers covered by these agreements, as well as on any additional measures undertaken to promote the full development and utilization of collective bargaining under the Convention.

Compulsory arbitration. In its previous comment, the Committee noted that sections 191Q(3), 191(R), 191(S) and 191AA(b) and (c) of the ERA, as amended in 2015, allowed for compulsory conciliation or arbitration and requested the Government to take measures to review the above provisions with a view to their amendment so as to bring the legislation into full conformity with the Convention. The Committee notes the Government’s statement that the Minister for Employment, Productivity and Industrial Relations conducts compulsory arbitration only where he or she considers that the dispute may be resolved by conciliation and that one such dispute has been resolved through compulsory conciliation in 2018. The Government informs that the Employment Relations Advisory Board (ERAB) will review the relevant laws and consider any appropriate amendments. The Committee recalls once again that compulsory arbitration is contrary to the voluntary nature of collective bargaining and is only acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention) or in essential services in the strict sense of the term or in cases of acute national crisis. The Committee expects that the above provisions of the ERA will be reviewed within the ERAB, in accordance with the agreement in the Joint Implementation Report 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.

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 August 2018, and 23 May and 13 November 2019, denouncing massive dismissals of workers, including members of the National Union of Workers (NUW), restrictions on collective bargaining, especially in the public sector and essential services, and lack of progress on the legislative reform. The Committee notes the Government’s reply thereto. In its previous comment, the Committee also requested the Government to provide a reply to the 2016 observations from Education International and the Fiji Teachers’ Union (FTU) concerning the lack of consultation in regard to wages and terms and conditions of employment. The Committee notes the Government’s reply that it has been continuously meeting with representatives of the FTU and the Fijian Teachers’ Association (FTA) in relation to the terms and conditions of employment, including in November 2018 and February 2019.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. With reference to the long-standing dispute in relation to the Vatukoula Mining Company (concerning the refusal to recognize a union and the dismissal of striking workers over 20 years ago), the Committee recalls that, in its previous comments, it had noted the Government’s indication that the Vatukoula Social Assistance Trust Fund (VSATF) had been established to benefit around 800 recipients through money grants and assistance for relocation, small and micro-enterprise development and education for dependants. The Committee noted the completion of a mediation process and requested the Government to supply detailed information on its outcome and the follow-up measures taken to compensate the persons concerned, as well as in relation to the VSATF fund. The Committee notes the Government’s indication that, following the mediation process and keeping in mind that it does not have any legal obligation to compensate the concerned workers, it is considering making an ex gratia payment to the workers in view of resolving their grievances but that this will require Cabinet approval. The Committee observes, however, that the Government does not provide any details as to the actual outcome of the mediation or the use of the VSATF fund. Recalling that this long-standing dispute has caused great hardship to the dismissed workers, the Committee expects that it will be finally and equitably resolved through the implementation of a mutually satisfactory settlement. The Committee requests the Government to supply information on the outcome of the mediation process and any compensation granted to the concerned workers, including any recourse to the VSATF fund. It also invites the Fiji Mine Workers’ Union (FMWU) to provide information on any developments in this regard.

Article 4. Promotion of collective bargaining. In its previous comment, the Committee welcomed the repeal of the Essential National Industries (Employment) Decree, 2011 (ENID) through the adoption of the Employment Relations (Amendment) Act, 2015, as well as the removal of the concept of bargaining units from the Employment Relations Promulgation, 2007 through the Employment Relations (Amendment) Act, 2016. The Committee noted with regret however that the abrogation by ENID of the collective agreements in force which it had considered contrary to Article 4, had not been addressed and requested the Government to engage in consultations with the representative national workers’ and employers’ organizations with a view to exploring a mutually satisfactory solution in this respect. The Committee notes the Government’s indication that there has been successful bargaining between employers and workers between 2016 and 2018 resulting in the signing of 63 collective agreements and 59 amendments to collective agreements but observes that, according to the FTUC: (i) all negotiations have been reverted to zero instead of using the abrogated agreements as a basis for discussion; (ii) the topics that can be negotiated in the local Government sector are severely restricted; and (iii) there is a continued refusal of the Government to engage in collective bargaining in the public sector. The FTUC also denounces that all Government-owned entities, including those employing teachers, nurses and civil servants, insist on imposing individual fixed-term contracts without any consultation with the unions, as a way of achieving the goals of the abrogated ENID. In light of the above, the Committee requests the Government to continue to take concrete measures to facilitate negotiations and promote collective bargaining between workers and employers or their organizations in the public sector so as to create an enabling environment for collective agreements to be concluded in replacement of those abrogated by ENID. It also requests the Government to continue to provide information on the number of collective agreements concluded, the sectors to which they apply and the number of workers covered.

Compulsory arbitration. In its previous comment, the Committee noted that sections 191Q(3), 191(R), 191(S) and 191AA(b) and (c) of the Employment Relations Act (ERA), as amended in 2015, allowed for compulsory conciliation or arbitration and requested the Government to take measures to review the above provisions with a view to their amendment so as to bring the legislation into full conformity with the Convention. The Committee notes the Government’s statement that the Minister for Employment, Productivity and International Relations conducts compulsory arbitration only where he or she considers that the dispute may be resolved by conciliation and that one such dispute has been resolved through compulsory conciliation in 2018. The Government informs that the Employment Relations Advisory Board (ERAB) will review the relevant laws and consider any appropriate amendments. The Committee recalls once again that compulsory arbitration is contrary to the voluntary nature of collective bargaining and is only acceptable in relation to public servants engaged in the administration of the State, essential services in the strict sense of the term and acute national crises. The Committee expects that the above provisions of the ERA will be reviewed within the ERAB, in accordance with the agreement in the Joint Implementation Report 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.

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

The Committee notes the observations provided by the International Trade Union Confederation (ITUC) in a communication received on 1 September 2015 referring to matters under examination by the Committee. It also notes the observations of the Fiji Mine Workers’ Union (FMWU) received in January 2016 and the observations from Education International (EI) and the Fiji Teachers’ Union (FTU) received on 6 September 2016 concerning the lack of consultation with this union in regard to wages and terms and conditions of employment of teachers. The Committee requests the Government to provide its comments on the latter observations. The Committee also notes the Government’s comments on the 2014 observations made by the ITUC, the Fijian Teachers Association (FTA) and the FMWU.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. With reference to the long-standing dispute in relation to the Vatukoula Mining Company (concerning the refusal to recognize a union and the dismissal of striking workers over 17 years ago), the Committee recalls that, in its previous comments, it had noted the Government’s indication that the Vatukoula Social Assistance Trust Fund (VSATF) had been established to benefit around 800 recipients through money grants and assistance for relocation, small and micro-enterprise development and education for dependants. The Committee had requested the Government to supply detailed information on the measures taken to compensate the persons concerned and to continue to engage with the FMWU representatives with a view to the implementation of a mutually satisfactory settlement.

The Committee notes the Government’s indication that: (i) it has initiated steps in adopting an interest-based mediation process in its effort to resolve this case through amicable settlement; (ii) the mediation process is composed of three stages: research and collating information in a chronological order, analysis of these documents to identify the interests of the parties, and face-to-face meetings with the executives of the FMWU; (iii) all three stages of the mediation process have been completed; and (iv) the Government is currently formulating suitable proposals for best settlement options. The Committee notes that the FMWU confirms in its 2016 observations the initiation of a mediation process in 2015. The Committee expects that, after 26 years, this long-standing dispute which has caused great hardship to the dismissed workers will finally and equitably be resolved through the implementation of a mutually satisfactory settlement. It requests the Government to supply detailed information on the outcome of the mediation process, on the follow-up measures taken to compensate the persons concerned in an expeditious and effective manner, and in relation to the VSATF fund. It also invites the FMWU to provide information on any developments in this regard.

Article 4. Promotion of collective bargaining. The Committee recalls that its previous comments concerned several provisions of the Essential National Industries Decree, 2011 (ENID) which were not in conformity with the Convention. The Committee warmly welcomes: (i) 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; (ii) the repeal on 14 July 2015 of the ENID through the adoption of the Employment Relations (Amendment) Act No. 10 of 2015; (iii) the signature by all three parties on 29 January 2016 of the Joint Implementation Report (JIR); and (iv) the adoption on 10 February 2016 of the Employment Relations (Amendment) Act of 2016 introducing the changes agreed to in the JIR.

Noting the concerns expressed during the 2016 ILO tripartite mission about the persisting negative impact of the ENID after its repeal, the Committee warmly welcomes that the Employment Relations (Amendment) Act, 2016, eliminates the concept of bargaining units from the ERP. It notes however with regret that the abrogation by the ENID of the collective agreements in force which it had considered contrary to Article 4, has not been addressed. The Committee notes that, at its meeting in June 2016, the Committee on Freedom of Association requested the Government to devise ways as to how to address this issue, taking into account that, according to the report of the ILO tripartite mission, there was awareness of the complainants of the difficulty of revalidating the collective agreements in extenso in view of the passage of time and readiness to envisage the possibility to reactivate the collective agreements negotiated prior to the ENID solely as base documents, with variations in terms and conditions to be renegotiated. The Committee requests the Government to engage in consultations with the representative national workers’ and employers’ organizations with a view to exploring a mutually satisfactory solution and to provide information on any progress achieved in this respect.

Compulsory arbitration. The Committee notes the following cases foreseen in the Employment Relations (Amendment) Act No. 10 of 2015 in which the Secretary shall notify the Minister and the Chair of the Arbitration Court that a trade dispute exists, which then gives rise to compulsory conciliation or arbitration: (i) in cases of refusal to negotiate upon collective bargaining notice (section 191Q(3)); and (ii) at the request of any party if no collective agreement has been concluded after 90 days and if the Secretary considers mediation unlikely to achieve results (section 191(R)), or if no results have been achieved after 14 days of consultation/mediation (section 191(S)). Moreover, section 191AA(b) and (c) provides that the Arbitration Court shall, inter alia, have cognizance of a trade dispute where a trade union or an employer party to the dispute makes a request in writing to the Secretary that the trade dispute be submitted to arbitration; or where the Minister directs that the trade dispute be submitted to arbitration. The Committee recalls that compulsory arbitration is contrary to the voluntary nature of collective bargaining and is only acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention), essential services in the strict sense of the term and acute national crises. The Committee requests the Government to take measures to review the 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.

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

The Committee notes the observations made by the International Trade Union Confederation (ITUC), received on 1 September 2014, the observations received on 14 October 2014 from the Fijian Teachers Association (FTA) and the observations of the Fiji Mine Workers Union handed to the direct contacts mission which visited the country in October 2014. The Committee requests the Government to provide detailed information in reply to these observations with its next report.

Article 1 of the Convention. Protection against acts of anti-union discrimination. With reference to the long-standing dispute in relation to the Vatukoula Mining Company (concerning the refusal to recognize a union and the dismissal of striking workers over 15 years ago), the Committee recalls that, in its previous comments, it had noted the Government’s indication that the Vatukoula Social Assistance Trust Fund (VSATF) had been established to benefit around 800 recipients, certain amounts of money granted and various types of assistance provided with regard to the redundant miners for the purpose of their relocation, small and micro-enterprise development and education for dependants. The Committee once again requests the Government to supply detailed information on the measures taken to compensate the persons concerned and to continue to engage with the Fiji Mine Workers Union representatives with a view to the expeditious and effective implementation of a mutually satisfactory settlement. The Committee trusts that, after 24 years, this long-standing dispute which has caused great hardship to the dismissed workers will finally and equitably be resolved.

Article 4. Promotion of collective bargaining. The Committee recalls that its previous comments concerned several provisions of the Essential National Industries Decree 2011 (ENID) which were not in conformity with the Convention. With reference to its comments under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Committee 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 any developments in this regard.

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 concerning issues already being raised by the Committee. The Committee also notes the conclusions and recommendations made by the Committee on Freedom of Association in the framework of Case No. 2723, as well as the related decisions adopted by 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.

Article 1 of the Convention. Protection against acts of anti-union discrimination. With reference to the dispute in the Vatukoula Mining Company (concerning the refusal to recognize a union and the dismissal of striking workers 15 years ago), the Government indicates that the Vatukoula Social Assistance Trust Fund (VSATF) has been established, certain amounts of money granted and various types of assistance provided with regard to the redundant miners for the purpose of their relocation, small and micro-enterprise development and education for dependants. Referring to the Government’s previous indication that the VSATF would benefit around 800 recipients, the Committee observes that the supplied list of beneficiaries only includes 67 persons. The Committee requests the Government to supply the final list of recipients and to continue to engage with the Fiji Mine Workers Union representatives with a view to the expeditious and effective implementation of a mutually satisfactory settlement for assistance to help the remaining workers re-establish themselves, in particular, by ensuring that they are adequately compensated via the VSATF in the very near future. It trusts that, after 23 years, this long-standing dispute which has caused great hardship to the dismissed workers will finally and equitably be resolved.

Article 4. Promotion of collective bargaining. The Committee recalls that several provisions of the Essential National Industries Decree 2011 (ENID) are not in line with the Convention:

• -Section 2 (threshold of 75 workers to form bargaining units): The Committee notes the Government’s indication that this provision ensures that workers performing similar types of work come together to enter into collective agreements; that workers still join unions in essential national industries; and that the freedom not to join should be respected. The Committee reiterates that a threshold of 75 workers to form bargaining units is excessive and denies the right to bargain collectively to a considerable number of workers in a given enterprise, especially in small enterprises. The Committee urges the Government once again to take the necessary measures without delay to amend the threshold.
• -Part 3 in conjunction with section 2 (role of both union delegates and elected workers’ representatives as bargaining agents): In the absence of new elements of information, the Committee once again urges the Government to take the necessary measures without delay to apply the legislation so as to ensure that the existence of elected representatives is not used to undermine the position of the trade unions concerned.
• -Section 8 (annulment of collective agreements in force; new collective agreement may be imposed by company if negotiation exceeds 60 days): The Committee notes the Government’s indication that there is a right of appeal to the minister for a review of the contents of the imposed agreement. Considering that the abrogation of collective agreements, as well as any unilateral imposition of conditions of employment failing agreement, is contrary to the obligation to encourage and promote collective bargaining, the Committee again urges the Government to repeal this provision.
• -Section 23 (renegotiation of collective agreements in case of financial distress; intervention of the Prime Minister failing agreement): The Committee notes that, if the parties do not reach agreement during the renegotiation of the collective agreement, the employer may submit a proposal to the Prime Minister. The Committee notes the Government’s statement that the purpose is to ensure the long-term sustainability of industries vital to the economy, and that the provision applies only to employers with operating losses suffered for two consecutive years, or suffered or expected twice in a three-year-period. The Committee considers that certain limited restraints on collective bargaining could only be imposed within the context of a serious economic crisis as an exceptional measure, namely in cases of serious and insurmountable difficulty, for the preservation of jobs and the continuity of enterprises and institutions. In any event, the arbitration body should be independent and enjoy the confidence of the parties concerned. The Committee requests the Government to amend this provision so as to ensure the respect of these principles.

The Committee notes the Government’s statement that the role of the tripartite Employment Relations Advisory Board (ERAB), which had agreed earlier to delete most of the abovementioned ENID provisions identified by itself as offending, is to advise the Minister of Labour, whereas the final decision on the ENID will subsequently be made at the political level by Cabinet. 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 above provisions in the very near future, in full consultation with the social partners and in line with the measures agreed by the ERAB subcommittee, so as to bring it into conformity with the Convention.

Counter-Inflation (Remuneration) Act. The Committee welcomes that, pursuant to section 160(1) of the Commerce Commission Decree 2010, the Counter-Inflation Act, including its section 10 (restriction or regulation of remuneration by order of the Prices and Incomes Boards; illegality of any agreement to the contrary), was repealed. The Committee notes, however, that according to section 162(1) of the Commerce Commission Decree, any orders made under the Counter-Inflation Act continue in force until replaced by subsidiary legislation made under the Decree. The Committee requests the Government to provide information as to whether any orders made under the Counter-Inflation Act allowing for restrictions to collective bargaining as regards remuneration remain in force, and whether any subsidiary legislation made under the Commerce Commission Decree is envisaged to be adopted.

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

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

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

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

Article 4. Promotion of collective bargaining. Essential National Industries Decree No. 35 of 2011. The Committee notes that, in the view of the ITUC, the Decree continues to negatively affect trade unions in the covered sectors. Observing that, in the framework of Case No. 2723, the CFA has recalled its previous conclusion that numerous provisions of the Essential National Industries Decree and its implementing regulations, give rise to serious violations of the principles on freedom of association and collective bargaining, the Committee considers that the following provisions are not in conformity with the Convention:

• – Bargaining unit. According to section 2, “bargaining unit” means a group of at least 75 workers employed by the same employer who perform similar types of work. The Committee notes that, according to the ITUC, this is one of the provisions that have devastated trade unions in practice in the sectors covered by the decree. It has had the effect that several unions have not been able to register bargaining units in certain enterprises where they were represented due to the fact that, in many cases, there are fewer than 75 workers in a job classification. The Committee notes the Government’s indication that the concept of “bargaining unit” is found in other countries’ laws and does not “replace trade unions” as has been claimed, since the two are quite different concepts; and that trade unions will continue to exist and can represent workers within a bargaining unit in a designated corporation in accordance with the Decree. In this regard, the Committee notes, however, with concern that the threshold to form bargaining units under the Decree has, in practice, precluded many workers from exercising their collective bargaining rights. The Committee urges the Government to take the necessary measures without delay to amend the threshold so as to ensure that the application of this provision does not deny the right to bargain collectively to a considerable number of workers in a given enterprise, especially workers working in small enterprises, and to avoid that the right of workers to be represented by a union is thus rendered purely theoretical.
• – Elected representatives. The Committee notes that Part 3 in conjunction with section 2 seek to establish the role of representatives – union or not – as collective bargaining agents. The Committee understands that the term “representative” may include a union delegate or an elected workers’ representative. In the absence of any information provided by the Government in this regard, the Committee once again recalls that, where there exists in the same undertaking both trade union representatives and elected representatives, appropriate measures are to be taken to ensure that the existence of elected representatives is not used to undermine the position of the trade unions concerned. The Committee also recalls that direct negotiation between the undertaking and its employees, bypassing representative organizations where these exist, is detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted. The Committee once again urges the Government to take the necessary measures without delay to ensure that the application of the legislation will be in full conformity with the above principles.
• – Annulment of collective agreements. According to section 8, all existing collective agreements are null and void 60 days after the Decree enters into force, and new agreements are to be negotiated by the parties before the expiry of the 60 days; otherwise, the company may unilaterally implement new terms and conditions through a new collective agreement or individual contracts. The Committee emphasizes that legislation which annuls freely negotiated collective agreements in force and requires their renegotiation is contrary to the principle of free and voluntary collective bargaining enshrined in the Convention. In addition, the Committee observes that the Government has provided no clear and imperative connection between any need for economic stabilization in a specific context and the existing collective agreements, and that the legislation has effect on whole sectors without any reference to specific clauses that cannot be implemented in the framework of an acute national crisis. Considering that the abrogation of collective agreements, as well as the unilateral imposition of conditions of employment failing agreement, is contrary to the obligation to encourage and promote collective bargaining, and that section 8 constitutes a direct violation of Article 4 of the Convention, the Committee urges the Government to abrogate this provision.
• – Renegotiation of collective agreements in case of financial distress. The Committee notes that section 23 provides that employers may renegotiate all their collective agreements if they are considered to be in financial distress; if bargaining fails to result in a new collective agreement, the employer may submit its proposals for a new or amended collective agreement to the Prime Minister for review, and the Prime Minister shall make a decision on the new terms and conditions of the new or amended collective agreement. With reference to the principles stated above in the context of the annulment and renegotiation of collective agreements, the Committee considers that section 23 amounts to compulsory arbitration by public authorities at the request of one of the parties. Considering that section 23 violates the principle of free and voluntary collective bargaining enshrined in the Convention, the Committee therefore requests the Government to abrogate this provision.
• – Moreover, while noting the Government’s indication that, where a union has been recognized for collective bargaining purposes, the employer is obliged to recognize and negotiate in good faith with the union representatives, the Committee notes with deep concern that, according to the ITUC, the Essential National Industries Decree has had in practice disastrous effects on the trade unions representing industries coming under its scope and even beyond: for example, several unions have been unable to register bargaining units due to the high threshold of 75 workers employed by the same employer who perform similar types of work, stipulated in section 2 of the Decree; almost no collective agreements have been concluded since the adoption of the Decree; efforts of unions to initiate collective bargaining with the employer and conduct good-faith negotiations usually remained to no avail; instead, unilateral changes to terms and conditions of employment have been imposed or threatened to be imposed by the employer; the check-off facility has been fully or partially withdrawn; union dues have sometimes been remitted directly to the bargaining unit rather than to the trade union concerned; and the delay in collective bargaining has entailed a generalized haemorrhage in union membership and thus a serious loss of resources to defend workers’ interests. The Committee had previously urged the Government to take the necessary measures to amend the provisions of the Decree without delay, in full consultation with the social partners, so as to bring it into conformity with the Convention. The Committee welcomes that, according to the report of the Direct Contacts Mission, within the framework of the current process of developing a new non-race based Constitution for Fiji to be ready by early 2013, through an inclusive national dialogue paving the way to the first democratic elections scheduled in 2014, and in view of the fact that the new Constitution will reflect the eight fundamental ILO Conventions and that national labour legislation will need to be compatible with the Constitution, the tripartite Employment Relations Advisory Board (ERAB) subcommittee has been tasked with the review of all existing government decrees relating to labour in terms of their conformity with the ILO fundamental Conventions. The Committee notes the Government’s indication that the ERAB subcommittee, the last meeting of which took place on 13 August 2012, is expected to be reconvened towards the end of September with the views of the Public Service Commission and the Attorney-General, and that the work of the ERAB and its subcommittee was anticipated to be concluded by October 2012. The Committee further welcomes that, according to the conclusions reached by the CFA in the framework of Case No. 2723, the ERAB subcommittee agreed, as stated by the complainant, to delete most of the provisions of the Essential National Industries Decree that were considered offending. The Committee trusts that the measures agreed by the tripartite ERAB subcommittee will be actively pursued and given effect in the near future, so as to bring the legislation into conformity with the Convention, and requests the Government to provide information on any progress made in this regard.

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

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

The Committee notes the comments made by the International Trade Union Confederation (ITUC) on 4 August 2011 denouncing severe restrictions on collective bargaining in the public sector and pressure on civil servants to choose between their job and their role in the trade union, and on 31 August 2011 focusing on the Essential National Industries (Employment) Decree 2011 (ENI). The Committee requests the Government to provide its observations thereon.

The Committee also notes the serious comments made by Education International (EI) dated 31 August 2011 concerning, inter alia, the suspension from the civil service of the President of the Fijian Teachers Association on the grounds of his public comments. Observing that the Committee on Freedom of Association has recommended his reinstatement in the framework of Case No. 2723, the Committee requests the Government to comply with this recommendation and to provide its observations on the remaining comments submitted by EI.

Article 1 of the Convention. Protection against acts of anti-union discrimination. With reference to the dispute in the Vatukoula Mining Company (concerning the refusal to recognize a union and the dismissal of striking workers 15 years ago), the Committee had previously taken note of the Government’s statement that there has been a change of ownership in the mines, that a significant number of these strikers have been employed by the new employer in the mines and that the Government has also provided those still unemployed with alternative means of livelihood through a small business scheme subsidized by the Government since the beginning of 2007. The Committee notes that the Government refers in its report to various measures with regard to the redundant miners of the Vatukoula Mining Company including the striking workers of the Fiji Mine Workers Union (FMWU), in particular important amounts of money granted for the purpose of rehabilitation or social assistance, training packages, re employment by the new owner, relocation of squatting miners and purchase of residential blocks at the expense of the Government, and establishment in 2010 of a multi-sectoral committee to discuss solutions to the issue. The Committee notes however the comments made by the FMWU dated 1 December 2009, 15 November 2010 and 22 August 2011, in particular that the information provided by the Government concerning inter alia the re-employment of many strikers and a subsidized business scheme for the unemployed is simply not true and that there has been no improvement in the situation. The Committee notes with concern the contradictory views of the Government and the FMWU, with progress being reported on the one hand and the deterioration of the situation being denounced on the other. The Committee requests the Government to provide its comments on the FMWU comments and to engage in exploratory talks with FMWU representatives with a view to reaching, without any further delay, a mutually satisfactory settlement for assistance to help the remaining workers re-establish themselves.

Article 4. Promotion of collective bargaining. The Committee notes that the ENI was promulgated on 29 July 2011, that the ITUC and EI severely criticize its provisions with respect to the Convention, and that the ENI has been submitted to the Committee on Freedom of Association in the framework of Case No. 2723.

Elected representatives. The Committee notes that Part 3 in conjunction with section 2 of the ENI seek to establish the role of representatives – union or not – as collective bargaining agents. The Committee understands that the term “representative” may include a union delegate or an elected workers’ representative. In this regard, it recalls that, where there exist in the same undertaking both trade union representatives and elected representatives, appropriate measures are to be taken to ensure that the existence of elected representatives is not used to undermine the position of the trade unions concerned. The Committee also recalls that direct negotiation between the undertaking and its employees, bypassing representative organizations where these exist, is detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted. The Committee urges the Government to take the necessary measures without delay to ensure that the application of the legislation will be in full conformity with the above principles.

Annulment of collective agreements. According to section 8 of the ENI, all existing collective agreements are null and void 60 days after the ENI enters into force, and new agreements are to be negotiated by the parties before the expiry of the 60 days; otherwise, the company may unilaterally implement new terms and conditions through a new collective agreement or individual contracts. The Committee emphasizes that legislation which annuls freely negotiated collective agreements in force and requires their renegotiation is contrary to the principle of free and voluntary collective bargaining enshrined in the Convention. In addition, the Committee observes that the Government has provided no clear and imperative reasons concerning any need for economic stabilization in a specific context, and that the legislation has effect on whole sectors without any reference to specific provisions that cannot be implemented in the framework of an acute national crisis. Considering that the abrogation of collective agreements as well as the unilateral imposition of conditions of employment failing agreement is contrary to the obligation to encourage and promote collective bargaining, and that section 8 of the ENI constitutes a direct violation of Article 4 of the Convention, the Committee urges the Government to abrogate this provision.

Renegotiation of collective agreements in case of financial distress. The Committee notes that section 23 of the ENI provides that employers may renegotiate all their collective agreements if they are considered to be in financial distress; if bargaining fails to result in a new collective agreement, the employer may submit its proposals for a new or amended collective agreement to the Prime Minister for review and the Prime Minister shall make a decision on the new terms and conditions of the new or amended collective agreement. With reference to the principles enounced above in the context of the annulment and renegotiation of collective agreements, the Committee considers that section 23 of the ENI amounts to compulsory arbitration by public authorities at the request of one of the parties. Considering that section 23 of the ENI violates the principle of free and voluntary collective bargaining enshrined in the Convention, the Committee therefore requests the Government to abrogate this provision.

Restriction of the right to collective bargaining. Previously, the Committee had requested the Government to indicate the measures taken or contemplated so as to amend section 10 of the Counter-Inflation (Remuneration) Act which envisages, if need be, the restriction or regulation of remuneration of any kind by order of the Prices and Incomes Boards and stipulates that any agreement or arrangement which does not respect these limitations will be illegal and deemed to be an offence. The Committee notes from the Government’s report that: (i) section 10 is dormant, has not been used since 24 years and can only be activated in extreme situations of economic crisis bordering insolvency; (ii) in its efforts to promote collective bargaining, the Government has developed a Code of Good Faith Collective Bargaining as guidance for the social partners; and (iii) the Government’s commitment to the right of workers and employers to bargain freely is evidenced by the fact that section 10 was not activated during the global financial crisis in 2008 and the numerous cyclones hitting Fiji at the same time. The Committee further notes the Government’s indication that, in the framework of the review of outdated laws, the Government is exploring, in light of the recently adopted commercial legislation, the need of retaining the Counter-Inflation (Remuneration) Act and the possibility to merge the Price and Incomes Boards with the Commerce Commission. Accordingly, the Committee requests the Government to take measures to abrogate section 10 of the Counter-Inflation (Remuneration) Act and to provide information on any developments in the framework of the above reform.

In general, the Committee expresses deep concern at the serious violations of the Convention that have been brought to its attention. Recalling the recommendation made by the Committee on Freedom of Association in the framework of Case No. 2723 that the Government accepts 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.

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

The Committee notes the comments of the International Trade Union Confederation (ITUC) on the application of the Convention and requests the Government to submit its observations thereon.

Article 1 of the Convention. Protection against anti-union discrimination. The Committee had previously referred to the dispute in the Vatukoula Mining Company (concerning the refusal to recognize a union and the dismissal of striking workers 15 years ago), and had requested the Government to give consideration to the recommendation of the Senate Select Committee for assistance to help the remaining workers re-establish themselves. It takes note of the Government’s statement that there has been a change of ownership in the mines, that a significant number of these strikers and their children have been employed by the new employer in the mines and that the Government has also provided those still unemployed with alternative means of livelihood through a small business scheme subsidized by the Government since the beginning of 2007.

Article 4. Promotion of collective bargaining. Previously, the Committee had requested the Government to indicate the measures taken or contemplated so as to amend section 10 of the Counter‑Inflation (Remuneration) Act which envisages, if need be, the restriction or regulation of remuneration of any kind by order of the Prices and Incomes Boards and stipulates that any agreement or arrangement which does not respect these limitations will be illegal and deemed to be an offence. While noting the Government’s statements that section 10 restricts bargaining on wages only, that it would be activated only in the event of an economic crisis, taking into account the economy’s vulnerability to external shocks, and that it had been used only twice in the past 30 years, the Committee must once again recall that the possibility of reactivating this provision at any time is not in conformity with the principle of free and voluntary collective bargaining. Accordingly, the Committee once again requests the Government to indicate in its next report the measures taken or contemplated so as to amend section 10 of the Counter-Inflation (Remuneration) Act and bring it into full conformity with Article 4 of the Convention.

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

The Committee notes that the Government’s report does not provide information on the issue raised in previous comments with regard to section 10 of the Counter-Inflation (Remuneration) Act. The Committee recalls that this provision envisages, if need be, the restriction or regulation of remuneration of any kind by order of the Prices and Incomes Boards and stipulates that any agreement or arrangement which does not respect these limitations will be illegal and deemed to be an offence. In its previous comments the Committee had noted that according to the Government this provision is currently dormant due to the healthy economic position of the country and is not likely to be activated in the foreseeable future. However, the Committee noted that the possibility of reactivating this provision at any time is not in conformity with the principles of free and voluntary collective bargaining. The Committee once again requests the Government to indicate in its next report the measures taken or contemplated so as to amend section 10 of the Counter-Inflation (Remuneration) Act and bring it into full conformity with Article 4 of the Convention.

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

The Committee notes the Government’s report as well as its reply to the comments by the International Trade Union Confederation (ITUC). It also notes the latest comments by the ITUC dated 27 August 2007 with regard to violations of the Convention in 2006 and requests the Government to send its observations on this issue.

The Committee notes the text of the Employment Relations Act No. 36 of 2007 (ERA) which came into effect on 1 October 2007 and repealed the Trade Unions Act, the Trade Disputes Act, the Trade Unions (Recognition) Act, the Wages Councils Act and the Employment Act (section 265 of the Employment Relations Act).

Article 1 of the Convention. Protection against anti-union discrimination. The Committee recalls that its previous comments concerned the need to ensure adequate protection against anti-union discrimination in the new legislation. The Committee notes that according to the ITUC, to date, not a single employer has been prosecuted despite numerous cases reported to the Ministry each year about victimization of workers who show any inclination to join a union; moreover, the courts have usually taken the position that reinstatement is not the remedy when employers interfere in union activities. The Committee notes with satisfaction from the Government’s reply and the text of the ERA, that section 77 contains a comprehensive prohibition of acts of anti-union discrimination for all types of trade union activity, at all stages of the employment relationship, including recruitment. Part 13 provides for a redress system to address unfair dismissals. Part 20 allows trade unions to raise grievances through mediation services, the Employment Relations Tribunal and the Employment Relations Court. The Tribunal and Court have under section 230 the power to order remedies including reinstatement, reimbursement and/or compensation for humiliation, loss of benefit or loss of property. 

Article 2. Protection against acts of interference. The Committee’s previous comments concerned the need to introduce adequate protection, including sufficiently rapid machinery and dissuasive sanctions, against acts of interference by employers or their organizations into workers’ organizations and vice versa. The Committee notes with satisfaction that protection is envisaged in section 125(1)(f) of the ERA as well as section 4 (definition of “duress” and “employment grievance”) in conjunction with Part 20 of the ERA on the redress machinery which may be triggered in case of trade union grievances relative to acts of interference.

Article 4. Promotion of collective bargaining. 1. The Committee notes that the ITUC refers to: difficulties faced by minority unions in obtaining recognition for collective bargaining purposes, as such recognition is mandatory only for unions with absolute majority in the unit; and difficulties in concluding collective agreements in EPZs. The Committee notes with satisfaction that according to the Government, the ERA removed the absolute majority requirement for recognition so as to establish a duty to negotiate regardless of whether the union represents the absolute majority of workers in the unit, including in EPZs.

2. The Committee notes that the ITUC referred to a case of denial of access to a workplace by trade union representatives. The Committee notes with satisfaction that section 145 of the ERA (2007) now provides access to workplaces to trade union representatives with the consent of the employer which shall not be withheld unreasonably, in order to discuss union business with members, recruit members or provide information on the union and union membership to any worker on the premises.

Articles 1 and 4. With regard to its previous comments on the dispute in the Vatukoula Mining Company (refusal to recognize a union and dismissal of striking workers 15 years ago), the Committee, noting that the Government has not provided any information in this regard, once again requests the Government to give consideration to the recommendation of the Senate Select Committee for assistance to help the remaining workers re-establish themselves.

The Committee addresses a request on another point 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 refer largely to pending issues relating to the legislation and the application of the Convention in practice that are already under examination. The ICFTU’s allegations also relate to restrictions in practice on the rights set out in the various provisions of the Convention and the difficulty of concluding collective agreements in export processing zones. In this regard, the Committee notes that the Government’s observations have been recently received and the Committee will examine them at its next session.

The Committee also requests the Government, in the context of the regular reporting cycle, to provide its observations for the Committee’s next session in November-December 2007 on all the issues relating to legislation and the application of the Convention in practice raised in its previous observation in 2005 (see 2005 observation, 76th Session).

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

With regard to its previous comments concerning section 10 of the Counter-Inflation (Remuneration) Act, which allows for the restriction or regulation of remuneration of any kind by order of the Prices and Incomes Board, and stipulates that any agreement or arrangement which does not respect these limitations will be illegal and deemed to be an offence, the Committee notes that the Government once again emphasizes the exceptional character of this Act which will only be reactivated should the economic situation of the country be threatened. The Committee also notes that, according to the Government, due to the healthy economic position the country is in at present, section 10 of the Act will remain dormant for quite a long time. While taking due note of the fact that section 10 of the Act is not likely to be activated in the foreseeable future, the Committee once again notes that the possibility of reactivating this provision at any time is not in conformity with the principles of free and voluntary collective bargaining and once again requests the Government to consider amending section 10 of the Counter-Inflation (Remuneration) Act so as to bring it into full conformity with Article 4 of the Convention.

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

The Committee takes note of 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. The Committee notes from the Government’s report that the Bill has been tabled in Parliament for adoption and should be passed without delay. The Committee requests the Government to keep it informed of progress made in the adoption of the Bill.

1. Protection against anti-union discrimination. The Committee recalls that in its previous comments it had noted, based on comments made by the FTUC, that the current mechanism for dealing with acts of anti-union discrimination (sections 2, 3(1), 4 and 5 of the Trade Disputes Act), did not allow trade unions and their members to bring their cases to the courts so as to have grievances examined, and requested the Government to amend the legislation, possibly in the framework of the draft Industrial Relations Bill, so as to enable trade unions and their members to have access to the Labour Court on their own initiative for the examination of allegations of anti-union discrimination and to ensure that the Labour Court has the competence to order appropriate remedies. The Committee had also noted the need to introduce a specific prohibition of anti-union dismissals accompanied by sufficiently dissuasive remedies (according to the FTUC, section 24 of the Employment Act enabled employers to terminate the services of employees by giving them short notice or pay in lieu of notice).

The Committee notes from the Government’s report that: (1) section 77(1) and (2) of the Employment Relations Bill prohibits all acts of anti-union discrimination against workers for trade union activities including participation in strikes; (2) Part 13 provides for a redress system to address any form of unfair dismissal through employment grievances; (3) Part 20 allows trade unions and individual members to raise their grievances through the mediation services or through the Employment Relations Tribunal; (4) no employer may dismiss an employee without notice except on grounds stipulated under section 33 of the Bill (summary dismissal) and, in that case, the employer must provide the worker with reasons in writing for the summary dismissal. The Committee takes note of this information with interest and requests the Government to indicate in its next report progress made in the adoption of these provisions.

2. Protection against acts of interference. In its previous comments the Committee had noted, pursuant to comments by the FTUC, that the draft Industrial Relations Bill did not seem to contain any provision prohibiting acts of interference and requested the Government to ensure adequate protection, including sufficiently rapid machinery and dissuasive sanctions, against acts of interference by employers or their organizations into workers’ organizations, in particular, acts which are designed to promote the establishment of workers’ organizations under the domination of employers’ organizations.

The Committee notes from the Government’s report that section 126 of the Employment Relations Bill allows the Registrar of Trade Unions to refuse the registration of a union if it is under the domination of the employer, in a way which restricts its independence. The Committee notes that, while this provision introduces a certain safeguard against acts of interference, it contains no sanctions; moreover, there is no explicit prohibition of all acts of interference in the Bill, as provided for in Article 2 of the Convention. The Committee therefore once again requests the Government to indicate in its next report measures taken to complement the draft Employment Relations Bill by introducing adequate protection, including sufficiently rapid machinery and dissuasive sanctions, against acts of interference by employers or their organizations into workers’ organizations and vice versa.

Articles 1 and 4. With regard to its previous comments on the dispute in the Vatukoula Joint Mining Company (refusal to recognize a union and dismissal of striking workers), the Committee had regretted the long delay in the resolution of this dispute; it had moreover noted certain claims put forward by the Fiji Mine Workers’ Union in particular for: (1) the filing of an appeal by the Solicitor-General; (2) the payment of compensation; and (3) the provision of assistance to help the workers re-establish themselves, as recommended by a Senate Select Committee on 6 July 2004, and had requested the Government to indicate any measures taken or contemplated in this respect.

The Committee notes from the Government’s report that: (1) the Solicitor-General is of the view that any further appeal on the case would not serve any purpose because of the time factor; (2) compensation is not justified as the strike was illegal; (3) some members had left Vatukoula and a few had passed away whilst the bulk of the members had been re-employed, and for those who were nearing retirement age, their children were employed by EGM; finally, the Government had not considered the recommendation by the Senate Select Committee for assistance to help the workers re-establish themselves.

The Committee notes with regret that, despite the long delay in the resolution of this dispute which has lasted for 15 years and has caused great hardship to the dismissed workers, the Government did not give consideration to the recommendation by the Senate Select Committee for assistance to help the remaining workers re-establish themselves. The Committee requests the Government to give due consideration to this request and hopes that a satisfactory solution will be found without further delay.

The Committee addresses a request on another point directly to the Government.

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

With regard to its previous comments concerning section 10 of the Counter-Inflation (Remuneration) Act, which allows for the restriction or regulation of remuneration of any kind by order of the Prices and Incomes Board and stipulates that any agreement or arrangement which does not respect these limitations will be illegal and deemed to be an offence, the Committee notes that according to the Government: (1) section 10 is and will remain suspended until such time as the economic situation in the country justifies its reactivation; (2) there are no remuneration guidelines or wage ceilings; (3) collective bargaining is free and unrestricted; (4) wage agreements are normally reviewed annually. The Committee takes due note of the fact that section 10 of the Counter-Inflation (Remuneration) Act has been suspended for many years. The Committee also considers, however, that the possibility of reactivating this provision at any time is not in conformity with the principles of free and voluntary collective bargaining. The Committee once again requests the Government to consider amending the provisions of section 10 of the Counter-Inflation (Remuneration) Act so as to bring its legislation into full conformity with Article 4 of the Convention.

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

The Committee takes note of the Government’s report as well as the comments made by the Fiji Trades Union Congress (FTUC) dated 25 August 2004 and the Fiji Mine Workers’ Union dated 26 August 2004. It also notes with interest the text of the (further amended) draft Industrial Relations Bill handed over by the Government on 3 June 2004.

Article 1 of the Convention. 1. Protection against anti-union discrimination. The Committee notes that according to the FTUC, although section 59(1) of the Trade Unions Act prohibits acts of anti-union discrimination, in reality workers are not accorded any protection because the controlling authority often refrains from acting as vigorously as it should. Thus, no employer has been successfully prosecuted to date despite numerous complaints referred to the Ministry of Labour and Industrial Relations for action. The FTUC attaches documents concerning delays in treating six complaints of anti-union discrimination, including one which has been brought before the Committee on Freedom of Association (Case No. 2316) and on which it is stated that although the union had notified the Ministry of the dismissals of 44 workers by the Turtle Island Resort in a letter dated 24 July 2002, no appropriate measures were taken resulting in the union’s recognition as representative being eventually withdrawn.

The Committee notes that according to the Government, the Ministry has received complaints that some employers are frustrating the rights of workers to form and join unions of their own choosing and these employers have been cautioned on the potential breach of the Trade Unions Act and the subsequent prosecution. It adds that the Trade Unions Act makes it an offence for an employer to stipulate the cessation of union membership as a condition of employment.

The Committee notes that according to the mechanism for dealing with acts of anti-union discrimination provided in sections 2, 3(1), 4 and 5 of the Trade Disputes Act, the complainant trade unions and their members do not have the standing to bring their cases to the courts or any other independent body so as to have their grievances examined; trade disputes may only be reported to the Permanent Secretary for Labour who has full discretion to reject the report, cause an investigation into it, or report it to the Minister who may in turn refer it to a Tribunal. The Committee emphasizes that in cases of anti-union discrimination the parties should have access to authorities like the ordinary courts or specialized bodies, which should have all the necessary powers to rule rapidly, completely and in full independence and in particular to decide the most appropriate form of redress in the light of the circumstances (General Survey on freedom of association and collective bargaining, 1994, paragraph 219). The Committee requests the Government to indicate in its next report any measures taken or contemplated to amend the legislation, possibly in the framework of the draft Industrial Relations Bill, so as to enable trade unions and their members to have access to the Labour Court on their own initiative for the examination of allegations of anti-union discrimination, if all other efforts at a rapid conciliation and negotiation fail, and to ensure that the Labour Court has the competence to order appropriate remedies.

2. The Committee further notes that according to the FTUC, section 24 of the Employment Act enables employers to terminate the services of employees by giving them short notice or pay in lieu of notice. The Committee notes that the Employment Act contains no obligation to show cause for dismissals and no provision prohibiting dismissals on anti-union grounds. The Committee recalls that legislation which allows the employer in practice to terminate the employment of a worker on condition that he pay the compensation provided for by law in all cases of dismissal, when the real motive is his trade union membership or activity, is inadequate under the terms of Article 1 of the Convention (General Survey, op. cit., paragraph 220). The Committee requests the Government to indicate in its next report any measures taken or contemplated to amend the Employment Act so as to introduce a specific prohibition of anti-union dismissals accompanied by sufficiently dissuasive remedies.

Article 2. Protection against acts of interference. The Committee notes that the FTUC refers to various acts of interference including the open promotion of in-house unions instead of independent ones and delaying tactics before the courts which enable employers to undermine unions seeking recognition while the trial is pending, by dismissing their members or intimidating them into resigning (this is what allegedly happened in the abovementioned Case No. 2316).

The Committee notes that according to the Government, section 59 of the Trade Unions Act (which prohibits anti-union discrimination) forbids by implication the exercise of control by employers over workers and workers’ organizations and that the recent ratification of Convention No. 87 as well as the amendments that will be made to the draft Industrial Relations Bill will ensure that there will be no interference whatsoever. The Government also indicates that the social partners reached an understanding in the Labour Advisory Board not to interfere with each other’s organizations.

The Committee observes that section 59 of the Trade Unions Act does not contain a specific prohibition of acts of interference and is not accompanied by the relevant implementation machinery while the draft Industrial Relations Bill does not seem to currently contain any provision in this respect. The Committee welcomes the information contained in the Government’s report on the understanding reached between the employer and worker members of the Labour Advisory Board. The Committee notes however that nothing in the Government’s report permits to affirm that this understanding is a legally binding agreement accompanied by sufficiently effective and dissuasive sanctions. The Committee hopes that the amendments to be made to the draft Industrial Relations Bill according to the Government, will ensure adequate protection, including sufficiently rapid machinery and dissuasive sanctions, against acts of interference by employers or their organizations into workers’ organizations, in particular, acts which are designed to promote the establishment of workers’ organizations under the domination of employers’ organizations. The Committee requests the Government to keep it informed in this respect.

Articles 1 and 4. With regard to its previous comments on the dispute in the Vatukoula Joint Mining Company (refusal to recognize a union and dismissal of striking workers), the Committee notes that according to the Fiji Mine Workers’ Union, on 11 June 2004, a final judgement was given in favour of the employer to the effect that the recommendations of the 1995 Commission of Inquiry were "null and void". According to the Fiji Mine Workers’ Union, the inactivity of the Government and its misinterpretation of the Trade Disputes Act have been largely responsible for the long delay in the resolution of this dispute which has lasted for 15 years and has caused great hardship to the dismissed workers. The Committee expresses regret at the long delay in the resolution of this dispute and requests the Government to transmit the text of the judgement in its next report.

The Committee also notes the claims put forward by the Fiji Mine Workers’ Union in its communication, namely: (1) the filing of an appeal on this case by the Solicitor General; (2) the payment of compensation to mitigate the hardship suffered by the workers; and (3) the provision of assistance to help the workers re-establish themselves within Vatukoula or elsewhere as recommended by a Senate Select Committee on 6 July 2004. The Committee requests the Government to indicate in its next report any measures taken or contemplated in this respect.

Article 4. The Committee notes with interest that the draft Industrial Relations Bill contains positive measures for the promotion of collective bargaining, in particular, provisions concerning good faith bargaining (section 156), the provision of information during bargaining (section 158) and the possibility of any trade union (without representativeness requirements) to report trade disputes to the Labour Tribunal (section 173). The Committee requests the Government to indicate in its next report any progress made with a view to the adoption of the Bill.

The Committee reminds the Government that it may avail itself of the technical assistance of the Office if it so wishes.

The Committee addresses a request on other points directly to the Government.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

The Committee notes the Government’s report, as well as the information provided to the Conference Committee in June 2002 and the debates that took place.

1. Article 2 of the Convention. In its previous comments, the Committee had requested the Government to provide information in its next report on the contents of the 1996 report of the subcommittee of the Labour Advisory Board with regard to the measures to be taken to guarantee adequate protection to workers’ organizations against acts of interference by employers or their organizations, including sufficiently effective and dissuasive sanctions, and had expressed the firm hope that the Government would take the necessary measures in the very near future to ensure full compliance with the Convention on this point. In its report, the Government indicates that the Labour Advisory Board at its last meeting on 16 July 2002 considered that work on the Industrial Relations Bill should continue. The Government also adds that the situation augurs well for industrial relations in Fiji especially after the ratification of all the core Conventions in April of this year. The Committee recalls that it has been commenting on this issue for several years, and while taking note of this information it once again expresses the firm hope that the Government will take the necessary measures in the very near future to amend the legislation and ensure full compliance with the Convention on this point.

2. Article 4. With regard to the Fiji Trade Union Congress’ (FTUC) previous comments that the Vatukoula Joint Mining Company has engaged in delaying tactics and has challenged the report of the Commission of Inquiry concerning the refusal by the company to recognize an independent registered Fiji mineworkers’ union, the Committee had requested the Government to inform it of the court’s decision in this matter once it is issued. In this respect, the Government indicates in its report that the case is still before the court, and that it has initiated actions to have the stay order struck out. The Committee notes this information and requests the Government to keep it informed of the developments in this regard in its next report.

Moreover, the Committee had previously requested the Government to submit the provisions of the Trade Unions (Recognition) Act which have been amended to extend collective bargaining rights to the representative unions in a bargaining unit even when none of them covers 50 per cent of the employees in this unit. The Committee notes with satisfaction that the old legal provisions on recognition of trade unions have been repealed by the enactment of the new Trade Unions (Recognition) Act of 1998, which provides recognition of minority unions for the purposes of collective bargaining.

In its previous comments, the Committee had asked the Government to take the necessary measures to amend section 10 of the Counter-Inflation (Remuneration) Act, which allowed for the restriction or regulation, by order of the Prices and Incomes Board, of remuneration of any kind, and stipulated that any agreement or arrangement which did not respect these limitations would be illegal and deemed to be an offence. The Committee had considered that the powers vested under the Act in the Prices and Incomes Board did not meet the criteria for acceptable limitations on voluntary collective bargaining and had asked the Government to keep it informed of any application in practice of section 10 of the Act. The Government considers in its report that section 10 is in full compliance with the provisions of Article 4 for the reasons that: (1) it had been invoked by the Minister of Finance to meet national economic interests; and (2) once this objective has been met and free collective bargaining reintroduced, section 10 has again become dormant.

While noting the Government’s view on this point, the Committee must once again recall that if, under an economic stabilization or structural adjustment policy, for compelling reasons of national economic interest, wage rates cannot be fixed freely by means of collective bargaining, restrictions should be applied as an exceptional measure and only to the extent necessary, should not exceed a reasonable period and should be accompanied by adequate safeguards to protect effectively the standard of living of the workers concerned (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 260). Since the criteria for acceptable limitations on voluntary collective bargaining do not appear to have been met, the Committee would accordingly once again ask the Government to take the necessary measures to amend section 10 of the Act in order to ensure full compliance with the Convention.

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

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s report, as well as the information provided to the Conference Committee in June 2002 and the debates that took place.

1. Article 2 of the Convention. In its previous comments, the Committee had requested the Government to provide information in its next report on the contents of the 1996 report of the subcommittee of the Labour Advisory Board with regard to the measures to be taken to guarantee adequate protection to workers’ organizations against acts of interference by employers or their organizations, including sufficiently effective and dissuasive sanctions, and had expressed the firm hope that the Government would take the necessary measures in the very near future to ensure full compliance with the Convention on this point. In its report, the Government indicates that the Labour Advisory Board at its last meeting on 16 July 2002 considered that work on the Industrial Relations Bill should continue. The Government also adds that the situation augurs well for industrial relations in Fiji especially after the ratification of all the core Conventions in April of this year. The Committee recalls that it has been commenting on this issue for several years, and while taking note of this information it once again expresses the firm hope that the Government will take the necessary measures in the very near future to amend the legislation and ensure full compliance with the Convention on this point.

2. Article 4. With regard to the Fiji Trade Union Congress’ (FTUC) previous comments that the Vatukoula Joint Mining Company has engaged in delaying tactics and has challenged the report of the Commission of Inquiry concerning the refusal by the company to recognize an independent registered Fiji mineworkers’ union, the Committee had requested the Government to inform it of the court’s decision in this matter once it is issued. In this respect, the Government indicates in its report that the case is still before the court, and that it has initiated actions to have the stay order struck out. The Committee notes this information and requests the Government to keep it informed of the developments in this regard in its next report.

Moreover, the Committee had previously requested the Government to submit the provisions of the Trade Unions (Recognition) Act which have been amended to extend collective bargaining rights to the representative unions in a bargaining unit even when none of them covers 50 per cent of the employees in this unit. The Committee notes with satisfaction that the old legal provisions on recognition of trade unions have been repealed by the enactment of the new Trade Unions (Recognition) Act of 1998, which provides recognition of minority unions for the purposes of collective bargaining.

In its previous comments, the Committee had asked the Government to take the necessary measures to amend section 10 of the Counter-Inflation (Remuneration) Act, which allowed for the restriction or regulation, by order of the Prices and Incomes Board, of remuneration of any kind, and stipulated that any agreement or arrangement which did not respect these limitations would be illegal and deemed to be an offence. The Committee had considered that the powers vested under the Act in the Prices and Incomes Board did not meet the criteria for acceptable limitations on voluntary collective bargaining and had asked the Government to keep it informed of any application in practice of section 10 of the Act. The Government considers in its report that section 10 is in full compliance with the provisions of Article 4 for the reasons that: (1) it had been invoked by the Minister of Finance to meet national economic interests; and (2) once this objective has been met and free collective bargaining reintroduced, section 10 has again become dormant.

While noting the Government’s view on this point, the Committee must once again recall that if, under an economic stabilization or structural adjustment policy, for compelling reasons of national economic interest, wage rates cannot be fixed freely by means of collective bargaining, restrictions should be applied as an exceptional measure and only to the extent necessary, should not exceed a reasonable period and should be accompanied by adequate safeguards to protect effectively the standard of living of the workers concerned (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 260). Since the criteria for acceptable limitations on voluntary collective bargaining do not appear to have been met, the Committee would accordingly once again ask the Government to take the necessary measures to amend section 10 of the Act in order to ensure full compliance with the Convention.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

1. Article 2 of the Convention. The Committee had requested the Government to provide information in its next report on the contents of the 1996 report of the subcommittee of the Labour Advisory Board with regard to the measures to be taken to guarantee adequate protection (accompanied by sufficiently effective and dissuasive sanctions) to workers’ organizations against acts of interference by employers or their organizations. In view of the fact that the Committee has been commenting on this issue for several years, it expresses the firm hope that the Government will take the necessary measures in the very near future to ensure full compliance with the Convention on this point.

2. Articles 3 and 4. (a) In relation to the Fiji Trade Union Congress’ (FTUC) previous comments that the Vatukoula Joint Mining Company has engaged in delaying tactics and has challenged the report of the Commission of Inquiry concerning the refusal by the company to recognize an independent registered Fiji Mineworkers’ Union, the Committee requests the Government to inform it of the court’s decision in this matter once it is issued.

(b) In response to the Committee’s previous comments that the Trade Union (Recognition) Act was silent as to the position of a union which did not represent 50 per cent or more of the employees in a bargaining unit, the Government had pointed out that the amendment of this Act had led to a multiplicity of unions in one undertaking all of which were granted bargaining rights. The Committee notes the Government’s indication that the Trade Unions (Recognition) Act (Amendment) Decree of 1991 has been repealed. The Committee requests the Government to amend the Trade Union (Recognition) Act to extend collective bargaining rights, at least on behalf of their members, to the unions in a bargaining unit even when none of them covers 50 per cent of the employees in this unit.

3. Article 4. The Committee had noted previously that section 10 of the Counter-Inflation (Remuneration) Act allowed for the restriction or regulation, by order of the Prices and Incomes Board, of remuneration of any kind, and stipulated that any agreement or arrangement which did not respect these limitations would be illegal and deemed to be an offence. The Committee had considered, however, that the powers vested under the Act in the Prices and Incomes Board did not meet the criteria for acceptable limitations on voluntary collective bargaining and had asked the Government to keep it informed of any application in practice of section 10 of the Act. In this context, the Government states in its report that section 10 of the Act has been suspended and there is no immediate plan to reactivate it; however, the Remuneration Guideline is still in place.

The Committee recalls that if, under an economic stabilization or structural adjustment policy, for compelling reasons of national economic interest wage rates cannot be fixed freely by means of collective bargaining, restrictions should be applied as an exceptional measure and only to the extent necessary, should not exceed a reasonable period and should be accompanied by adequate safeguards to protect effectively the standard of living of the workers concerned (see General Survey on freedom of association and collective bargaining, 1994, paragraph 260). Since these wage ceilings date back to 1986, the Counter-Inflation (Remuneration) Act cannot be considered to be an exceptional measure introduced for a reasonable period of time. The Committee would accordingly ask the Government to take the necessary measures to amend section 10 of the Act in order to ensure full compliance with the Convention on this point.

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

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the Government's report.

1. Article 2 of the Convention. The Committee had requested the Government to provide information in its next report on the contents of the 1996 report of the subcommittee of the Labour Advisory Board with regard to the measures to be taken to guarantee adequate protection (accompanied by sufficiently effective and dissuasive sanctions) to workers' organizations against acts of interference by employers or their organizations. In view of the fact that the Committee has been commenting on this issue for several years, it expresses the firm hope that the Government will take the necessary measures in the very near future to ensure full compliance with the Convention on this point.

2. Articles 3 and 4. (a) In relation to the Fiji Trade Union Congress' (FTUC) previous comments that the Vatukoula Joint Mining Company has engaged in delaying tactics and has challenged the report of the Commission of Inquiry concerning the refusal by the company to recognize an independent registered Fiji Mineworkers' Union, the Committee requests the Government to inform it of the court's decision in this matter once it is issued.

(b) In response to the Committee's previous comments that the Trade Union (Recognition) Act was silent as to the position of a union which did not represent 50 per cent or more of the employees in a bargaining unit, the Government had pointed out that the amendment of this Act had led to a multiplicity of unions in one undertaking all of which were granted bargaining rights. The Committee notes the Government's indication that the Trade Unions (Recognition) Act (Amendment) Decree of 1991 has been repealed. The Committee requests the Government to amend the Trade Union (Recognition) Act to extend collective bargaining rights, at least on behalf of their members, to the unions in a bargaining unit even when none of them covers 50 per cent of the employees in this unit.

3. Article 4. The Committee had noted previously that section 10 of the Counter-Inflation (Remuneration) Act allowed for the restriction or regulation, by order of the Prices and Incomes Board, of remuneration of any kind, and stipulated that any agreement or arrangement which did not respect these limitations would be illegal and deemed to be an offence. The Committee had considered, however, that the powers vested under the Act in the Prices and Incomes Board did not meet the criteria for acceptable limitations on voluntary collective bargaining and had asked the Government to keep it informed of any application in practice of section 10 of the Act. In this context, the Government states in its report that section 10 of the Act has been suspended and there is no immediate plan to reactivate it; however, the Remuneration Guideline is still in place.

The Committee recalls that if, under an economic stabilization or structural adjustment policy, for compelling reasons of national economic interest wage rates cannot be fixed freely by means of collective bargaining, restrictions should be applied as an exceptional measure and only to the extent necessary, should not exceed a reasonable period and should be accompanied by adequate safeguards to protect effectively the standard of living of the workers concerned (see General Survey on freedom of association and collective bargaining, 1994, paragraph 260). Since these wage ceilings date back to 1986, the Counter-Inflation (Remuneration) Act cannot be considered to be an exceptional measure introduced for a reasonable period of time. The Committee would accordingly ask the Government to take the necessary measures to amend section 10 of the Act in order to ensure full compliance with the Convention on this point.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the information supplied by the Government in its reports, as well as the information provided to the Conference Committee in June 1996 and the detailed discussion which took place thereafter. It further notes the observations made by the Fiji Trades Union Congress (FTUC) in a communication dated 24 September 1996 and the reply of the Government thereto.

1. Article 2 of the Convention. In its previous comments, the Committee had stressed the need to adopt specific measures, particularly through legislation, to guarantee adequate protection (accompanied by sufficiently effective and dissuasive sanctions) to workers' organizations against any act of interference by employers or their organizations.

In its communication of 24 September 1996, the FTUC points out that although a subcommittee had been established to come up with proposals for consideration of the Labour Advisory Board in July 1996, there has been no fruitful conclusion to date. The Government responds that a subcommittee of the Labour Advisory Board had been set up on 8 July 1996 to discuss changes proposed by the Ministry of Labour and Industrial Relations on the revision of the current system of labour reforms. This subcommittee, which subsequently held two meetings, would issue a report to the Labour Advisory Board at its final meeting in 1996.

The Committee requests the Government to provide information in its next report on the contents of the 1996 report of the subcommittee of the Labour Advisory Board with regard to the measures to be taken to guarantee adequate protection to workers' organizations against acts of interference by employers or their organizations. In view of the fact that the Committee has been commenting on this issue for several years, it expresses the firm hope that the Government will take the necessary measures in the very near future to ensure full compliance with the Convention on this point.

2. Articles 3 and 4.(a) In relation to the FTUC's comments that the Vatukoula Joint Mining Company has had recourse to delaying tactics and challenged the report of the Commission of Inquiry concerning the refusal by the company to recognize an independent registered Fiji Mineworkers' Union, the Government states that it cannot intervene since the matter is now before the court. The Committee requests the Government to keep it informed of the court's decision in the matter of the Vatakoula mines once it has been handed down.

(b)In response to the Committee's previous comments that the Trade Union (Recognition) Act was silent as to the position of a representative union which did not cover 50 per cent of the employees in a bargaining unit, the Government had pointed out that the amendment of this Act had led to a multiplicity of unions in one undertaking all of which were granted bargaining rights. The Committee requests the Government to submit in its next report the provisions of the Trade Union (Recognition) Act which have been amended to extend collective bargaining rights to the representative unions in a bargaining unit even when none of them covers 50 per cent of the employees in this unit.

3. Article 4. The Committee had noted previously that section 10 of the Counter-Inflation (Remuneration) Act allowed for the restriction or regulation, by order of the Prices and Incomes Board, of remuneration of any kind, and stipulated that any agreement or arrangement which did not respect these limitations would be illegal and deemed to be an offence. The Committee had considered, however, that the powers vested under the Act in the Prices and Incomes Board did not meet the criteria for acceptable limitations on voluntary collective bargaining and had asked the Government to keep it informed of any application in practice of section 10 of the Act.

The Government states in its report that the object of section 10 of the Act is to curb the upward spiralling of wages. In its comments, the FTUC points out that the Government refused to go to voluntary arbitration on the log of claims of the unions to which the Government replies that collective bargaining has not been affected to the stage alleged, as free collective bargaining is allowed on other conditions except for wages.

While noting the Government's explanation on this point, the Committee must recall that if, under an economic stabilization or structural adjustment policy, for compelling reasons of national economic interest wage rates cannot be fixed freely by means of collective bargaining, restrictions should be applied as an exceptional measure and only to the extent necessary, should not exceed a reasonable period and should be accompanied by adequate safeguards to protect effectively the standard of living of the workers concerned (see General Survey on freedom of association and collective bargaining, 1994, paragraph 260). Since these wage ceilings date back to 1986, the Counter-Inflation (Remuneration) Act cannot be considered to be an exceptional measure introduced for a reasonable period of time. Since the criteria for acceptable limitations on voluntary collective bargaining do not appear to have been met, the Committee would accordingly ask the Government to take the necessary measures to amend section 10 of the Act in order to ensure full compliance with the Convention on this point.

4. The Committee takes note of the comments made by the Fiji Trade Union Congress (FTUC) in a communication dated 17 September 1997. It requests the Government to provide its observations thereon.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the information provided by the Government in its report.

1. Article 2 of the Convention. In its previous comments, the Committee had stressed the need to adopt specific measures, particularly through legislation, to guarantee adequate protection (accompanied by sufficiently effective and dissuasive sanctions) to workers' organizations against any act of interference by employers or their organizations. The Government indicates that workers' organizations have made submissions to it on the pieces of legislation that need to be amended in this respect. These will be looked into by the Government before appropriate recommendations are made to the Labour Advisory Board.

The Committee requests the Government to keep it informed of the content of these recommendations after their submission to the Labour Advisory Board.

2. Articles 3 and 4. (a) In relation to the previous comments of the Fiji Trade Union Congress (FTUC) that the Tripartite Forum had not been reactivated for some time, the Committee notes the Government's statement that the Tripartite Forum has now been reactivated and the parties are working out the terms of reference of the Forum. It is envisaged that the Forum's functions will also include wider social and economic issues, in addition to labour matters.

(b) In response to the FTUC's previous comments that collective bargaining was hampered by employer refusal to recognize independent unions, an example of which was the Vatukoula Joint Mining Company refusing to recognize a registered Fiji Mineworkers' Union, the Government states that the Commissioner of Inquiry into the Vatukoula mines has submitted his report to the Minister for Labour and Industrial Relations and details of that report have not been released as yet. The Committee requests the Government to keep it informed of the conclusions of the Commissioner's report once it has been made public.

(c) In its previous comments, the Committee had noted that the Trade Union (Recognition) Act was silent as to the position of a majority union which did not cover 50 per cent of the employees in a bargaining unit and it had recalled that if under a system of nominating an exclusive bargaining agent there was no union covering more than 50 per cent of the workers, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members (1994 General Survey on freedom of association and collective bargaining, paragraph 241).

The Government points out that with the amendment of the above Act, there are now a multiplicity of unions in one undertaking which are all granted bargaining rights. The Committee requests the Government to indicate in its next report which provisions of the Trade Union (Recognition) Act have been amended to extend collective bargaining rights to all unions in a bargaining unit even if none of them covers 50 per cent of the employees in this unit.

3. Article 4. The Committee had noted previously that section 10 of the Counter-Inflation (Remuneration) Act allowed for the restriction or regulation, by order of the Prices and Incomes Board, of remuneration of any kind, and stipulated that any agreement or arrangement which did not respect these limitations would be illegal and deemed to be an offence. The Committee had considered, however, that the powers vested under the Act in the Prices and Incomes Board did not meet the criteria for acceptable limitations on voluntary collective bargaining. The Committee would therefore ask the Government to keep it informed of any application in practice of section 10 of the Act.

[The Government is asked to report in detail in 1996.]

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee takes note of the Government's report and of the conclusions reached by the Committee on Freedom of Association in the context of Case No. 1622 (284th Report of the Committee, paras. 686-705, approved by the Governing Body in November 1992).

1. Article 2 of the Convention. In its previous comments, the Committee had stressed the need to adopt specific measures, particularly through legislation, to guarantee adequate protection (accompanied by sufficiently effective and dissuasive sanctions) to workers' organizations against any act of interference by employers or their organizations. The Committee notes the Government's statement that no amendments have been made so far, but that the change needed would be kept in mind when the law is amended next.

The Committee hopes that the Government will take the necessary measures at the earliest possible opportunity, and it asks the Government to keep it informed of any developments in that matter.

2. Article 4. Further to its previous comments on the restrictions on collective bargaining imposed by the Counter-Inflation (Remuneration) (Cap. 73, revised in 1985) Act, the Committee notes with interest the Government's statement that economic recovery (which was aimed at by the restrictive legislative measures) has since been realized and that the restriction was lifted on 31 July 1991, thus allowing full collective bargaining to function freely. The Committee also notes that various restrictive orders have been revoked. The Committee notes for example that the Counter-Inflation (Remuneration) (Control) Order, 1990, has been revoked.

However, the Counter-Inflation (Remuneration) Act itself does not seem to have been repealed or amended. Section 10 of the Act allows for the restriction or regulation, by order, of remuneration of any kind, and stipulates that any agreement or arrangement which would not respect these limitations would be illegal and deemed to be an offence.

The Committee considers that the powers vested under the Act in the Prices and Incomes Board, as recalled above, do not meet the criteria for acceptable limitations on voluntary collective bargaining. As it has already stressed, the Committee holds that restrictions imposed on free collective negotiations, for imperative reasons of national interest, should be applied as an exceptional measure, only to the extent necessary, they should not exceed a reasonable period and accompanied by adequate safeguards to protect effectively the standard of living of the workers concerned, in particular those who are likely to be the most affected (see 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 260).

The Committee therefore asks the Government to take the necessary measures to ensure that the Board, if it should take any order in future under section 10 of the Act, will observe the above-mentioned principles. It asks the Government to keep it informed of any application of section 10 of the Act.

3. Articles 3 and 4. In relation to the previous comments of the Fiji Trade Union Congress (FTUC) on the situation of the workers in the free trade zones, and especially the garment workers where the Garment Manufacturers' Association apparently unilaterally set the employment conditions of the workers without discussion with the Garment Workers' Association, the Committee notes the Government's information according to which the Garment Industry Wages Council (as is the case in seven other Industry Wages Councils), is made up of three persons, with one representative for employers and one for workers. All decisions on the conditions of employment are discussed and the conclusions reached by consensus. The discussions of the Council have resulted in the Wages Regulations (Garment Industry) Order, 1991.

With regard to the FTUC's comments that the Tripartite Forum had not been reactivated for some time, the Committee notes the Government's explanation that it formed the National Economic Strategy Committee as a substitute to deal with all labour matters which were handled by the Tripartite Forum before.

With regard to the FTUC's comments indicating that bargaining was hampered by employer refusal to recognize independent unions and giving the example of the Vatukoula Joint Mining Company refusing to recognize a registered Fiji Mineworkers' Union, the Government states that a Compulsory Recognition Order was issued by the Permanent Secretary for Labour and Industrial Relations on behalf of that union on 11 September 1992, and that it was challenged by the company in the High Court, which invalidated the Order by judgement of 2 April 1993.

Noting that the Committee on Freedom of Association had observed in Case No. 1622, paragraph 695, that the Trade Union (Recognition) Act is silent as to the position of a majority union which does not cover 50 per cent of the employees in a bargaining unit, the Committee recalls that if under a system of nominating an exclusive bargaining agent there is no union covering more than 50 per cent of the workers, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members (see 1994 General Survey, op. cit., paragraph 241).

The Committee considers that the application of restrictive conditions such as stipulated in the Act is not conducive to voluntary negotiation between employers or employers' organizations and workers' organizations with a view to the regulation of terms and conditions of employment by means of collective agreements. It would ask the Government to provide information in its next report on any measures taken or contemplated to promote collective bargaining in the case of the Fiji Mineworkers' Union and the Vatoukula Joint Mining Company and to send copies of any collective agreements reached.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

With reference to its previous observation, the Committee takes note of the Government's report, the comments of the Fiji Trades Union Congress (FTUC) dated 5 and 15 November 1990, as well as the conclusions reached in relation to this Convention by the Committee on Freedom of Association in the context of Case No. 1425 (268th Report of the Committee, paras. 410-458, approved by the Governing Body in November 1990).

1. Article 2 of the Convention. In its previous comments, the Committee had stressed the need to adopt specific measures, particularly through legislation, to guarantee adequate protection (accompanied by sufficiently effective and dissuasive sanctions) to workers' organisations against any act of interference by employers or their organisations. In its most recent report, the Government recognises that the present legislative situation does not seem to comply fully with the requirements of Article 2 of the Convention. It states that, although the Government has not experienced interference by employers in trade union activities, consideration will have to be given to changing the law in order to comply fully. According to the Government, this will be looked at when the next amendment of the relevant laws is considered.

The Committee welcomes this development. It asks the Government to inform it as soon as possible of the elaboration of the necessary legislation and to indicate when such an amendment will be before the Legislature so that full effect is given to this Article.

2. Article 4 of the Convention. The Committee had requested information on the scope of the restrictions on collective bargaining imposed by the Counter-Inflation (Remuneration) Act. The Government stresses again that the Act lays down limits for salary and wage increases and does not bar negotiations on other terms and conditions of work; collective agreements have been renegotiated during the currency of this Act affecting these latter issues. It supplies copies of Variation Orders issued under the Act (allowing 6 per cent wage increases from 1 January 1989 and from 1 July 1989) and points out that wage increases had been negotiated in the Tripartite Forum and implemented through the issuance of appropriate Variation Orders. The Government adds that the machinery necessary to foster voluntary negotiations is contained in section 14 of the new Constitution, and that such negotiations are encouraged through the provisions of the Trade Union Act, the Trade Union Recognition Act and the Trade Disputes Act. It also states that the imposition of wage ceilings is intended as a short-term solution to Fiji's economic recovery and it is hoped that, with continuing economic improvement, the Act will be repealed and free collective bargaining reintroduced without any further restriction in order to comply fully with this Article of the Convention.

While noting the Government's explanations on this point, the Committee recalls that, where for compelling reasons of national economic interest, a government considers that wage rates cannot be fixed freely by means of collective negotiations, such a restriction should be imposed as an exceptional measure, and only to the extent necessary, without exceeding a reasonable period, and it should be accompanied by adequate safeguards to protect workers' living standards (1983 General Survey, para. 315). The Committee notes that the wages ceilings date back to 1986 and followed a wage freeze announced on 9 November 1984, restraint measures which were criticised by the Committee on Freedom of Association in an earlier case against the Government of Fiji (Case No. 1379, approved by the Governing Body in March 1987). The present Committee also observes that no evidence is supplied by the Government to show that legislation of this type is an exceptional measure and provides protection of workers' living standards. It does not appear therefore that the criteria for acceptable limitations on voluntary collective bargaining have been met. The Committee accordingly asks the Government to inform it of the measures it intends taking to lift this restriction on free wages bargaining in order to ensure full compliance with the Convention on this point.

3. Also in relation to Articles 3 and 4 of the Convention, the Committee takes note of the FTUC's comments dated 5 and 15 November 1990. These comments indicate that bargaining is hampered by employer refusal to recognise independent unions; for example, the Vatukoula Joint Venture Mining Company has refused to recognise the recently registered Fiji Mineworkers' Union. Secondly, the FTUC raises the problem of workers in free trade zones, such as the garment workers: the Garment Manufacturers' Association apparently unilaterally set the employment conditions of these workers without any discussions with the Garment Workers' Association or the FTUC and, although in October 1990 a garment industry wages council was set up, it has yet to prescribe minimum rates of pay and working conditions. Moreover, the FTUC states that the council has a majority of government and employer representatives who have proposed - through the media - minimum rates of pay that are well below the cost-of-living in Fiji. Thirdly, the FTUC reports that the Government has failed to reactivate the Tripartite Forum, which apparently was last convened in 1985.

4. Lastly, the FTUC refers to a government announcement of April 1989 that it would amend trade union legislation in order to remove the existing rights of several categories of workers; although no action has been taken in this direction, the FTUC sees this as a real threat.

5. Since the Government has not replied to these comments of the FTUC, the Committee asks the Government to send its observations so that the Committee will be in a position to examine the situation as a whole at its next meeting.

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee notes the Government's report and recalls that its previous comments concerned the following points:

- the need to adopt specific measures, particularly through legislation, to guarantee adequate protection, enforceable by civil remedies or penal sanctions, to workers' organisations against any act of interference by employers or their organisations, in accordance with Article 2 of the Convention;

- the scope of the restrictions on collective bargaining imposed by the Counter-Inflation (Remuneration) Act.

1. With regard to the application of Article 2 of the Convention, the Government refers once again to the Trade Unions Act and the Industrial Association Act which, in its view, guarantee the mutual independence of occupational organisations. It adds that these organisations meet on committees appointed by the Government, but that no employer has control over a trade union.

While noting this information, the Committee once again requests the Government to take specific measures to forbid the establishment of workers' organisations dominated by an employer and the support by financial or other means of workers' organisations with the purpose of placing these workers' organisations under the control of an employer or an employers' organisation, in accordance with Article 2 of the Convention, and to indicate in its next report any progress achieved in this respect.

2. In its previous observation, the Committee - as did the Committee on Freedom of Association in Case No. 1379, approved by the Governing Body at its 248th Session (March 1987) - requested information from the Government on the way in which effect is given to Article 4 of the Convention, following the adoption of the Counter-Inflation (Remuneration) Act.

The Committee notes from the information supplied by the Government that the Counter-Inflation (Remuneration) Act empowers the Government to set a ceiling for the rate of remuneration of workers and that this measure, which was necessitated by the economic situation, will be re-examined when the situation improves. The Government adds that the social partners are still free to bargain collectively their other terms and conditions of employment.

In this context, the Committee also notes the Counter-Inflation (Remuneration) (Control) (Variation) Order, 1988, adopted under section 10 of the Counter-Inflation (Remuneration) Act and notes that as from 1 January 1988 no salary increase is allowed except under the very restrictive conditions set out in section 4 of the Order of 1988.

The Committee draws the Government's attention to the fact that free collective bargaining should be able to cover all the terms and conditions of employment, including matters relating to wages, and that intervention by the authorities with the intention of removing wage increases from the scope of bargaining is not in conformity with Article 4 of the Convention, if this is prolonged beyond a reasonable period of time. Indeed, the Committee emphasises that where, for compelling reasons of national economic interest, the Government considers that it would not be possible for wage rates to be fixed freely by means of collective negotiations, such a restriction should be imposed as an exceptional measure and only to the extent necessary without exceeding a reasonable period and it should be accompanied by adequate safeguards to protect the workers' living standards. Finally, instead of proceeding unilaterally to apply its economic policy, which may be justified by circumstances, the Government should endeavour to persuade the parties to collective bargaining to have regard voluntarily in their negotiations to the compelling reasons for its policy through appropriate consultation procedures, rather than constraining them through legislative measures.

The Committee therefore requests the Government to indicate in its next report the measures that it intends to take to lift the legal restrictions on the free negotiation of wages and to re-establish collective bargaining in this area.