Effect given to the recommendations of the committee and the Governing Body - Report No 338, November 2005

Case No 2316 (Fiji) - Complaint date: 08-JAN-04 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 149. The Committee last examined this case, which concerns the Government’s alleged failure to enforce a Compulsory Recognition Order (CRO) for the recognition of the National Union of Hotel, Catering and Tourism Industry Employees (NUHCTIE) by Turtle Island Resort, and counter attempts by the employer to avoid recognition of the complainant, notably through delaying tactics, as well as anti-union dismissals and interference, at its March 2005 meeting [see 336th Report approved by the Governing Body at its 292nd Session, paras. 45-58]. On that occasion, the Committee expressed regret at the withdrawal of the complainant’s recognition as representative union and requested the Government to exercise greater vigilance in the future when it came to ensuring protection against acts of anti-union discrimination and interference and – taking into account the recent ratification of Convention No. 87 as well as steps taken to enact industrial relations legislation – to take all necessary measures to ensure that an expeditious and effective mechanism was put in place to prevent and remedy such acts. The Committee also requested the Government to take all necessary measures so as to ensure that trade unions, including the complainant, enjoyed the facilities necessary for the exercise of their functions, such as access to the workplace and the possibility to meet with management and members without impairing the efficient operation of the undertaking.
2. 150. In communications dated 15 May and 14 September 2005, the Government indicated that the NUHCTIE had applied to the Ministry of Labour, Industrial Relations and Productivity for a CRO on 7 November 2002, after it had failed to receive any response from the employer on this issue. A special visit was made by officers of the Ministry to the island to conduct a determination exercise and establish whether the majority of workers had joined the union. As a result, a CRO was issued on 22 January 2003. The NUHCTIE appeared, however, not to have taken any action for five months after the CRO was issued. The workers had obviously lost interest in continuing with the membership of the union. The employer applied for derecognition on 19 June 2003 and following a determination exercise, the NUHCTIE was found to have nil membership. As a result, the union was informed through a notice by the Chief Executive Officer of the Ministry that it had ceased to be entitled for recognition by the Turtle Island Resort and that the CRO could not be legally imposed on the company.
3. 151. The Government added that it became aware of the complainant’s allegations of anti-union dismissals only in August 2004 when the complainant communicated a fax highlighting the conclusions and recommendations of the Committee in this case and emphasizing that more than 60 workers remained dismissed by the management of Turtle Island Resort (the Government attached a copy of the fax dated July 2004). By then, the recognition of the complainant had already been withdrawn. The Government sent labour inspectors after the Committee’s report was published in the local media, but they could not ascertain the allegations, as there were no union members then. As the complainant did not represent any workers at the resort, any investigation on anti-union discrimination and interference was a non-issue.
4. 152. As for the progress made in the adoption of a bill on industrial relations, the Government indicated that the Employment Relations Bill was listed to be tabled at the next sitting of Parliament, which commenced on 19 September 2005. Section 77 of the Bill guaranteed protection against acts of anti-union discrimination and interference. Section 125(f) allowed for the refusal of registration of a trade union which was under the domination or control of the employer and that section 145 of the Bill stated that no suit or other legal proceedings may be instituted and maintained in a court of law against a registered trade union or an officer or member of the trade union in respect of an act done in contemplation or in furtherance of a dispute. A worker may pursue an employment grievance like unfair dismissal under Part 13 of the Bill either personally or through a representative, the Mediation Service or the Employment Dispute (Part 17). If the grievance remained unsettled, it could be referred to the tribunal.
5. 153. The Government added that the Trade Union Recognition Act would be amended by removing a reference to trade union recognition so that any registered trade union could visit the workplace in order to discuss union business and recruit members. In particular, section 145 of the Employment Relations Bill provided that a representative of a registered trade union had the right to enter a workplace for purposes related to the union’s business without disrupting the work in order to: (a) discuss union business with the members; (b) recruit workers as union members; or (c) provide information on the union and its membership to any worker on the premises. Upon enactment of the Bill, unions would be entitled access to any workplace. A delay in the enactment of the Bill was due to the extensive consultations carried out among the Government, the social partners and other stakeholders. This included the ILO’s views on the requirements of the relevant Conventions, which had been taken on board.
6. 154. With regard to the particular case at hand, the Government indicated that the management had been required, due to the initial recognition of the complainant, to negotiate with the complainant with a view to concluding a collective agreement. The collective agreement should include a procedure agreed by both parties for the union’s access to the workplace so as to meet their members. However, before any arrangement was made to meet and negotiate with management, the complainant had demanded access to the workplace to meet the members without due consideration to the operation of the undertaking, hence the refusal by management. Section 147 of the Bill was put in place to allow unions’ access to the workplace in the exercise of their functions.
7. 155. The Committee notes with interest that according to the Government, the Employment Relations Bill was listed to tabled in Parliament for enactment and contained provisions on protection against acts of anti-union discrimination and interference, as well as on the right of all registered trade unions to visit the workplace, communicate with management, recruit members and provide information on the union, regardless of their recognition as representative. The Committee refers the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations.