Definitive Report - Report No 275, November 1990

Case No 1425 (Fiji) - Complaint date: 01-OCT-87 - Closed

1. 38. The Committee has examined this case on three previous occasions, at its February 1988, November 1989 and May 1990 meetings, when it presented interim reports to the Governing Body. (See 254th Report, paras. 505-523, 268th Report, paras. 410-458 and 272nd Report, paras. 273-293.) The Government sent its further comments in a letter dated 24 August 1990.
2. 39. Fiji has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 40. The original complaint of October 1987 related to serious government interference in trade union affairs in the aftermath of the military coup of September 1987. The International Confederation of Free Trade Unions (ICFTU) alleged in subsequent communications certain legislative restrictions which continued to hamper free union activities, as well as practical difficulties related to tripartite representation. The Government argued the need for certain contested Decrees and described developments in the country linked to the elaboration of a draft Constitution, presented to the President in May 1989.
2. 41. At its most recent examination of the case, in May 1990, the Committee's first observation was that, despite the Government's assurances that trade union rights have been fully restored and despite a second visit to Fiji by representatives of the ICFTU to discuss trade union problems, there appeared to have been no marked improvement in the trade union situation over the period that the Committee had been examining this case. At the same time, however, the Committee felt that the Government's response to its previous specific recommendations was more positive than negative.
3. 42. In the light of the Committee's interim conclusions made at that meeting, the Governing Body approved the following recommendations (272nd Report, para. 293):
   • (a) The Committee regrets that, although high-level government representatives met with the Fiji Trade Union Congress (FTUC) representatives during the October 1989 ICFTU visit to Fiji, the Government appears to have hardened its attitude towards meeting the FTUC.
   • (b) The Committee calls on the Government to give serious consideration to implementing in practice its professed recognition of the value of having a permanent tripartite mechanism at the national level for consultation and advisory purposes, and to involving the FTUC in any such body.
   • (c) The Committee notes the Government's stance on the need to maintain the Sunday Observance Decree (which bans all meetings on the Christian Sabbath, even union meetings in the privacy of union premises) and its undertaking to reconsider this ban in the future "as the country returns to some form of parliamentary democracy"; however the Committee requests the Government to take measures to repeal this Decree in view of the importance it attaches to the freedom to hold union meetings.
   • (d) The Committee regrets that the Public Service Commission has withdrawn recognition from the Fiji Public Service Association (FPSA). It requests the Government to take measures to re-establish the recognition of that Association and to supply its observations on this point.

B. The Government's reply

1. 43. In its communication of 24 August 1990, the Government comments on the two requests put to it in paragraph 293 of the Committee's 272nd Report.
2. 44. First it states that the Sunday Observance Decree is a policy decision of the Government made law so as to provide for the observance of Sunday not only as a Christian holy day but equally as a day of worship, thanksgiving and rest. The Decree does not of its own prohibit trade union meetings as these are possible in six out of seven days per week. According to the Government, it cannot be argued that the Decree greatly curtails the freedom of holding of union meetings by its members. Furthermore, the regulation of Sunday activities is not confined solely to trade union meetings, but applies equally to all other types of activities. Public interest at large would tend to dictate government policy decisions on such matters.
3. 45. Secondly, the Public Service Commission (PSC) categorically denies that it has formally withdrawn recognition from the FPSA. On the contrary, according to the Government, the PSC attempted to introduce a voluntary recognititon agreement in accordance with the Trade Unions (Recognition) Act on 30 August 1977. The FPSA replied in a letter dated 6 September 1977 to the effect that the recognition agreement being sought by the PSC was not necessary since no recognition problem exists between the FPSA and the PSC. It supplies a copy of the FPSA letter. The letter states:
   • Recognition: The Government has recognised the FPSA for a long time now as the trade union body representing the interests of all public servants, except those in the teaching, nursing, police and prisons occupational groups. Indeed, we have executed a number of collective agreements concerning salaries and other conditions of employment of public servants eligible to be members of our Association. The recognition agreement you are now seeking to enter with us is not necessary in view of the fact that we do not have recognition problems.
4. 46. The Government states that since that date the PSC has continued to maintain an informal relationship with the FPSA and both sides still meet regularly to discuss grievances of FPSA members. Furthermore, the FPSA has joined the PSC to a number of trade disputes that have been reported to the Ministry of Employment and Industrial Relations. In addition, trade union dues are deducted at source from salaries of civil servants who are members of the FPSA. The Government considers that if the FPSA now wishes to be formally recognised, after initially rejecting the PSC's proposal of 30 August 1977, then it should apply to the PSC for recognition as provided for under the Trade Union (Recognition) Act.
5. 47. The Government concludes with the hope that the foregoing explanations are sufficient to enable the Committee to come to an early decision on this case.

C. The Committee's conclusions

1. 48. As regards the Government's continued stance on the Sunday Observance Decree, the Committee can only repeat its conclusion arrived at during its May 1990 consideration of this general ban on Sunday meetings, namely that it trusts that the Government will live up to its stated undertaking to reconsider this ban in the future "as the country returns to some form of parliamentary democracy".
2. 49. At the same time the Committee stresses the importance attached by the ILO to the right of workers' organisations to meet for union business on their own premises at any time, evidenced by the statements in the resolution on trade union rights and their relation to civil liberties (adopted at the 54th Session of the International Labour Conference in 1970). Given the Government's "policy decision" described in its most recent reply reproduced above, the Committee would point out that the draft Constitution has now been proclaimed by the President of Fiji and became the supreme law of the country on 25 July 1990. Protection of freedom of assembly and association is set out in section 13 of the text, with a proviso enabling the passage of laws which make provision:
   • (a) in the interests of defence, public safety, public order, public morality or public health;
   • (b) for the purpose of protecting the rights or freedoms of other persons; or
   • (c) for the imposition of restrictions upon public officers,
     • except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.
     • With the consecration of this fundamental principle in the country's new Constitution, the Committee considers that the application of the Sunday Observance Decree to union meetings on union premises for union business should be discontinued.
   • 50. On the second outstanding issue in this case, namely the alleged anti-union attitude of the Public Service Commission, the Committee notes from the letter sent in 1977 by the Association to the Commission that, at that time at least, formal recognition was not desired. Moreover, the Committee notes that the Government's most recent reply lists examples of day-to-day dealings between the Commission and the FPSA as evidence of current de facto recognition. In fact, the Government, while denying that the Commission has formally withdrawn its recognition of the FPSA, also suggests that the Association apply for recognition under the Trade Unions (Recognition) Act if it wishes to have de jure recognition. The Committee considers that it would be appropriate for the FPSA to accept the Government's suggestion, and asks thecomplainants to keep it informed as to the progress of any such application.
3. 51. In view of the Government's explanations and of the lack of specificity in the complainants' allegations of anti-union tendencies in the public service, the Committee considers that this aspect of the case does not call for further examination.

The Committee's recommendations

1. 52. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee again requests the Government to reconsider its position on the continued application of the Sunday Observance Decree which bans - along with other gatherings - union meetings on union premises for union business on Sundays.
   • (b) The Committee notes that there has been no formal withdrawal of recognition of the Fiji Public Service Association because it had not formally applied for recognition under the Trade Unions (Recognition) Act. It also notes that day-to-day dealings between the Public Service Commission and the Association continue and that the Association is free to apply for recognition. Accordingly, the Committee considers that the Association should act upon the Government's suggestion that it apply for recognition, and asks the complainants to keep it informed as to the progress of any such application.