Report in which the committee requests to be kept informed of development - Report No 378, June 2016

Case No 2723 (Fiji) - Complaint date: 01-JUL-09 - Follow-up

Allegations: Acts of assault, harassment, intimidation and arrest and detention of trade union leaders and members, ongoing interference with internal trade union affairs, undue restrictions on trade union meetings and other legitimate trade union activities, the issuance of several decrees curtailing trade union rights, and the dismissal of a trade union leader in the public service education sector

1. 244. The Committee last examined this case at its October 2013 meeting, when it presented an interim report to the Governing Body [370th Report, paras 426–444, approved by the Governing Body at its 319th Session (October 2013)].
2. 245. The Fiji Trades Union Congress (FTUC) submitted, in the framework of the article 26 complaint, two implementation reports dated 2 June and 15 October 2015 in relation to the matters raised in the present case for the consideration of the Governing Body at its 324th and 325th Sessions. The Fiji Islands Council of Trade Unions (FICTU) submitted new allegations in communications dated 21 October 2015 and 19 February 2016. The International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) submitted new allegations in a communication dated 28 February 2014. The International Trade Union Confederation (ITUC) submitted new allegations in a communication dated 19 December 2013.
3. 246. The Government submitted, in the framework of the article 26 complaint, two implementation reports dated 2 June and 15 October 2015 (the first co-signed by the Fiji Commerce and Employers’ Federation (FCEF) and the second co-signed by the FCEF and a bargaining unit) and a joint implementation report dated 1 February 2016 co-signed by the FTUC and the FCEF, in relation to the matters raised in the present case, for the consideration of the Governing Body at its 324th, 325th and 326th Sessions.
4. 247. Fiji has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 248. In its previous examination of the case in October 2013, the Committee made the following recommendations [see 370th Report, para. 444]:
   • (a) Reiterating its deep concern at the numerous acts of assault, harassment and intimidation of trade union leaders and members for their exercise of the right to freedom of association previously alleged by the complainants, the Committee once again urges the Government, even if the victims have lodged a complaint in the meantime, to conduct ex officio an independent investigation without delay into the alleged acts of assault, harassment and intimidation against: Mr Felix Anthony, National Secretary of the FTUC and General Secretary of the FSGWU; Mr Mohammed Khalil, President of the FGSWU – Ba Branch; Mr Attar Singh, General Secretary of the FICTU; Mr Taniela Tabu, General Secretary of the Viti National Union of Taukei Workers; and Mr Anand Singh, lawyer. The Committee requests the Government to transmit detailed information with regard to the outcome of such inquiry and the action taken as a result. With particular regard to the allegation that an act of assault against a trade union leader was perpetrated in retaliation for statements made by the FTUC National Secretary at the ILC, the Committee urges the Government to ensure that no trade unionist suffers retaliation for the exercise of freedom of expression. The Committee generally urges the Government to take full account in the future of the relevant principles enounced in its previous conclusions.
   • (b) The Committee once again urges the Government to take the necessary measures to ensure that all criminal charges of unlawful assembly brought against Mr Daniel Urai, the FTUC President and General Secretary of the National Union of Hospitality, Catering and Tourism Industries Employees (NUHCTIE), and Mr Nitendra Goundar, a NUHCTIE member, on the grounds of failure to observe the terms of the Public Emergency Regulations (PER), are immediately dropped, and to keep it informed of any developments in this regard without delay, including the outcome of the case hearing that the Committee understands was deferred.
   • (c) While noting the lifting of the emergency legislation in the form of the PER on 7 January 2012, and the decision to temporarily suspend the application of section 8 of the Public Order Act as amended by the Public Order (Amendment) Decree No. 1 of 2012 (POAD) that placed important restrictions on freedom of assembly, the Committee again requests the Government to consider abrogation or amendment of the POAD. Stressing that freedom of assembly and freedom of opinion and expression are a sine qua non for the exercise of freedom of association, the Committee once again urges the Government to ensure full respect for these principles. It also requests the Government to reinstate Mr Rajeshwar Singh, FTUC Assistant National Secretary, in his position representing workers’ interests on the Air Terminal Services (ATS) Board without delay.
   • (d) As regards the ENID, the Committee urges the Government to take the necessary steps without delay, in full consultation with the social partners and in accordance with the measures agreed by the tripartite ERAB subcommittee in 2012, to amend or delete the specific provisions of the ENID previously identified by the Committee as giving rise to serious violations of the principles on freedom of association and collective bargaining, so as to bring the Decree into conformity with Conventions Nos 87 and 98, ratified by Fiji, and requests the Government to keep it informed of the progress made in this regard without delay.
   • (e) The Committee requests the Government to take all necessary measures to ensure that public servants have genuine and effective recourse to judicial review of any decisions or actions of government entities, and to provide practical information on the recourse had by public servants to administrative and judicial review (for example, use, length and outcome of proceedings). Moreover, the Committee once again requests the Government to provide information on the mechanisms available to public servants to address collective grievances, and to indicate the results of the review by the ERAB subcommittee of all government decrees relating to the public service in terms of their conformity with the ILO fundamental Conventions.
   • (f) The Committee urges the Government to take the necessary measures to ensure that arrangements are made between the parties to ensure the full reactivation of the check-off facility in the public sector and the relevant sectors considered as “essential national industries”.
   • (g) While it understands that Mr Koroi has left the country, the Committee expects that this case will be deliberated by the ERAB without further delay, and that, in the framework of this exercise, the conclusions that the Committee made in this regard when examining this case at its meeting in November 2010 [see 358th Report, paras 550–553] will be duly taken into account, with a view to rehabilitating Mr Koroi and considering his reinstatement should he return to Fiji.
   • (h) The Committee urges the Government to provide its observations to the complainants’ new allegations without delay.
   • (i) Strongly regretting that it is still obliged to observe that the ILO direct contacts mission that visited Fiji in September 2012 has still not been allowed to return to the country in line with the previous recommendation of the Committee and the decisions adopted by the Governing Body, the Committee firmly urges the Government to accept the return of the direct contacts mission without further delay, within the framework of the mandate bestowed upon it by the Governing Body based on the Committee’s conclusions and recommendations.
   • (j) The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
   • (k) The Committee draws the special attention of the Governing Body to the extreme seriousness and urgent nature of the matters dealt with in this case.

B. The complainants’ new allegations

1. 249. In a communication dated 19 December 2013, the ITUC alleged that: (i) on 18 December 2013, the industries covered by the Essential National Industries (Employment) Decree 2011 (ENID) were extended to cover the Pine and the Mahogany Industries, Fire Prevention (including the National Fire Authority), local government (including all municipal councils) and Airports Fiji Ltd; and (ii) on 19 December 2013, an ongoing secret ballot for industrial action at Tropik Wood was stopped by the Ministry of Labour, and the enterprise, which recently obtained Forestry Certification (FSC) that includes fair labour practices and respect for workers’ rights, issued a memo stating that there was no longer a union in the company; the Government announced a 10 per cent wage increase to the workers in the pine industry stating that the inclusion in the ENID would enable them to negotiate directly with the employer rather than via outside trade unions.
2. 250. In a communication dated 28 February 2014, the IUF alleges that, on 9 January 2014, six union leaders from the National Union of Hospitality Catering Tourism Industries Employees (NUHCTIE), including its General Secretary and at the same time FTUC President Daniel Urai, were arrested and charged for what the Government declared to be an “unlawful strike” and released a few days later on harsh bail conditions.
3. 251. In its implementation reports submitted to the Governing Body, the FTUC recalled the Tripartite Agreement signed by the Government of the Republic of Fiji, the FTUC and the Fiji Commerce and Employers’ Federation (FCEF) on 25 March 2015. The FTUC expressed concerns about the process of adoption of the Employment Relations (Amendment) Act 2015 stating that, after the Employment Relations Advisory Board (ERAB) agreed on the repeal of the ENID on 12 May 2015, a draft government bill was circulated to ERAB members on 20 May 2015, referred back to Government one day later without attempting to resolve substantial disagreements and tabled in Parliament on 22 May 2015. The FTUC also alleged that, on 12 October 2015, the Government convened a meeting of a reconstituted expanded ERAB at very short notice. The new Board appointed by the Government comprised many participants that have no status or were not party to the Tripartite Agreement, including representatives of two bargaining units. The FTUC immediately advised that it would not be a party to the ERAB meetings and would not be in a position to sign a joint report. With respect to the Employment Relations (Amendment) Act 2015, the FTUC raised the following concerns: (i) lack of remedy for trade unions that were deregistered and collective agreements that were abrogated under the ENID; (ii) promotion of non-union “bargaining units” as an alternative to trade unions; (iii) lack of reinstatement of disputes pending before the Arbitration Tribunal and courts that were discontinued by the ENID; (iv) expansion of the list of essential industries to include, in addition to the activities previously covered by the ENID, all government-owned commercial enterprises including the sugar industry and the fishing industry; (v) near impossibility of exercising the right to strike; and (vi) non existence of the institutions established under the amended ERP, such as the Arbitration Court to which disputes of interest are to be reported. Moreover, the FTUC denounces: (i) the non-existence in practice of collective bargaining in the public sector and in the private sector where the industry or company is classified as “essential services”; (ii) the failure to restore check-off in government-owned enterprises; (iii) the denial of trade union access to the workplace in government-owned enterprises coupled with acts of harassment and intimidation of union members; and (iv) the failure to address other issues raised by the ILO supervisory bodies (for example, relating to assaults against trade union leaders, Public Order Amendment Decree, Fiji Political Parties Decree).
4. 252. In its communication dated 21 October 2015, the FICTU alleges that, at its October 2015 meeting, the ERAB: (i) noted with concern that the Employment Relations (Amendment) Act 2015 failed to address the following issues: the right to strike; the option for workers to remain part of bargaining units; the scope of essential services and industries; the reactivation of collective agreements invalidated by the ENID; the reinstatement of disputes which were discontinued by the ENID; the exclusion of prison officers; the re-registration of trade unions where registration was cancelled by the ENID; and the immediate restoration of check-off facilities ceased following the ENID; (ii) also noted other remaining issues relating to the civil liberties of union leaders, the Political Parties Decree, the Electoral Decree and the Public Order Amendment Decree, which are to be addressed according to ILO recommendations at the next ERAB meeting.
5. 253. In its communication dated 19 February 2016, the FICTU denounces that: (i) the Joint Implementation Report signed on 29 January 2016 was not referred to ERAB for prior review nor was FICTU consulted on it; (ii) the amendments to the ERP made following the Joint Implementation Report (JIR) on 15 February 2016 make no changes to the expanded list of essential services and industries and no reference to a future review of the list as provided in the JIR; (iii) neither the JIR nor the 2016 amendment to the ERP address the unresolved issues relating to the Political Parties Decree, the restrictions on freedom of association in the 2013 Constitution, the reactivation of collective agreements invalidated by the ENID, or the reinstatement of collective disputes (e.g., log of claims) suspended by the ENID or other Decrees; (iv) the JIR and the 2016 amendment to the ERP address the following issues only partly or inadequately: reinstatement of terminated grievances (referral to Arbitration Court will overburden it and require new trial), dismissals during ENID operation (access to justice denied to aggrieved public servants, remedies to dismissals limited to compensation of a maximum amount, timeframe of 28 days too short, exclusion of grievances other than dismissal), re-registration of trade unions where registration was cancelled by the ENID (timeframe of seven days too short); replacement of bargaining units with enterprise unions (will lead to fragmentation of trade union movement); and (v) the 2016 amendment to the ERP includes a new never-discussed provision requiring the registration of trade union and employer federations in violation of freedom of association principles.

C. The Government’s reply

1. 254. In its implementation reports submitted to the Governing Body on 2 June and 15 October 2015, the Government reports on the latest developments as follows. The ERAB held three meetings in May 2015, at which it endorsed the repeal of the ENID thus bringing all workers and employers as well as the Government within the ambit of the Employment Relations Promulgation (ERP), and discussed the draft Employment Relations (Amendment) Bill prepared by the Government. The worker representatives disagreed with a number of aspects of the draft bill, and the ERAB decided to record the matters of disagreement and to submit the draft bill to the Minister on 21 May 2015. The bill was tabled in Parliament on 22 May 2015, the Parliamentary Standing Committee heard submissions from all stakeholders including the ILO, and the Bill was approved by Parliament and enacted on 14 July 2015 as the Employment Relations (Amendment) Act 2015. Upon entry into force of the Act on 11 September 2015, the President appointed the Chairperson of the Arbitration Court, and nominations would soon be sought from employers and unions for their list of members on the Arbitration Court. In October 2015, the Government appointed 18 additional members to the ERAB (six to each group), to ensure that all sectors of the social partners are widely represented on the ERAB and following the request of a number of workers’ and employers’ representatives. The expanded ERAB held three meetings on 12, 13 and 14 October 2015, at which it reconsidered the following matters of disagreement: (i) check-off – the ERAB agreed that check-off has been fully restored in the Government, and would be restored in entities previously under the ENI Decree after seeking from workers confirmation as to their trade union membership and their agreement to have dues deducted directly from their wages; (ii) the scope of essential industries – the ERAB agreed to recommend the reduction of the notice period and to reconsider the list of essential industries with ILO assistance; and (iii) resolution of disputes discontinued by the ENID – the ERAB agreed to recommend the reinstatement of individual grievances that had been pending before the Employment Tribunal so that the cases could be heard and adjudicated on. The ERAB decided to reconvene on a monthly basis to consider the remaining matters of disagreement and all other recommendations made by its subcommittee.
2. 255. The Government also submitted on 1 February 2016 the JIR signed by all three parties to the Tripartite Agreement of 25 March 2015 (the Government of Fiji, the FTUC and the FCEF), which is reflected in the Committee’s conclusions.

D. The Committee’s conclusions

1. 256. The Committee notes that, in the present case, the complainants have alleged several acts of assault, harassment, intimidation and arrest and detention of trade union leaders and members, ongoing interference with internal trade union affairs, undue restrictions on trade union meetings and other legitimate trade union activities, the issuance of several decrees curtailing trade union rights, and the dismissal of a trade union leader in the public service education sector.
2. 257. The Committee recalls that a complaint under article 26 of the ILO Constitution alleging the non-observance of Convention No. 87 by Fiji, had been submitted by a number of Workers’ delegates at the 2013 International Labour Conference, and was declared receivable. The Committee notes that the Fijian Constitution came into effect in September 2013 and that Fiji held democratic general elections in September 2014. The Committee takes note of the report of the ILO direct contacts mission that visited Fiji from 6 to 11 October 2014, as well as of the Memorandum of Understanding (MoU) on the future of labour relations in Fiji signed by the social partners on 11 October 2014. Furthermore, the Committee notes the Tripartite Agreement signed on 25 March 2015 by the Government, the FTUC and the 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, and committing to the submission of a Joint Implementation Report (JIR) to the Governing Body at its next session. The Committee notes that the Governing Body regretted, at its 325th Session (October–November 2015), the continuing failure to submit a JIR in accordance with the Tripartite Agreement, and called on the Government of Fiji to accept a tripartite mission to review the ongoing obstacles to the submission of a JIR and consider all matters pending in the article 26 complaint.
3. 258. The Committee takes note of the report of the ILO tripartite mission that visited Fiji from 25 to 28 January 2016 and warmly welcomes the signature by all three parties on 29 January 2016 of the JIR as well as the adoption on 10 February 2016 of the Employment Relations (Amendment) Act of 2016 introducing the changes agreed to in the JIR. The Committee is pleased to note the progress which has given rise to the Governing Body decision that the article 26 complaint would not be referred to a commission of inquiry, and that the procedure be closed. The Committee requests the Government to keep it informed of the developments in relation to the follow-up given to the JIR and the 2016 ERP amendment.

Legislative issues

1. 259. With reference to the conclusions and recommendations previously made in this case concerning the Essential National Industries Decree (ENID), the Committee welcomes the repeal of the ENID by the 2015 amendment of the ERP, while observing that section 191BW provides that the ENID is repealed except to the extent saved by new Part 19 of the ERP. Noting the issues relating to the creation of bargaining units that had been raised by the complainants during the ILO direct contacts mission in 2014, as well as the concerns expressed by the complainants in their allegations and during the ILO tripartite mission in 2016 that the 2015 amendment to the ERP perpetuated a number of elements of the ENID, particularly as regards the continued existence of bargaining units, the Committee warmly welcomes that, in line with the JIR signed on 29 January 2016, the Employment Relations (Amendment) Act 2016 eliminates the concept of bargaining units from the ERP and allows workers to freely form or join a trade union (including an enterprise union) under the ERP. With respect to public service, the Committee equally welcomes that section 191BW stipulates that both the Employment Relations (Amendment) Decree No. 21 of 2011 and the Public Service (Amendment) Decree No. 36 of 2011 are repealed, which the Committee understands brings the public service workers back under ERP coverage.
2. 260. Furthermore, observing that, pursuant to section 185 of the ERP as amended in 2015, the list of industries considered as essential services now includes the services listed in Schedule 7 of the ERP, the essential national industries declared under the former ENID and the corresponding designated companies, as well as the Government, statutory authorities, local authorities and government commercial companies, the Committee also welcomes that, according to the JIR, the tripartite partners agreed to invite the ILO to provide technical assistance and expertise to assist the ERAB to consider, gauge and determine the list of essential services and industries. The Committee asks the Office to provide the requested technical assistance as soon as possible and requests the Government to keep it informed of developments in this regard.
3. 261. Lastly, noting the concerns expressed by the complainants during the ILO direct contacts mission in 2014 about the effects of the ENID on the trade union movement in the country and the need highlighted by the complainants in their allegations and during the 2016 tripartite mission to remedy the persisting negative impact of the ENID after its repeal, the Committee warmly welcomes that, in line with the JIR signed on 29 January 2016, the Employment Relations (Amendment) Act 2016 provides for: (i) the reinstatement of individual grievances discontinued under the ENID or the Employment Relations (Amendment) Decree No. 21 of 2011; (ii) the application for compensation for termination of employment under the ENID; and (iii) the entitlement to apply for registration without registration fee, of trade unions deregistered as a result of the ENID.
4. 262. Recalling its previous conclusions that the abrogation by the ENID of the collective agreements in force is contrary to Article 4 of Convention No. 98 concerning the encouragement and promotion of collective bargaining, the Committee requests the Government to devise ways as to how to address the issue, taking into account that, according to the report of the ILO tripartite mission, there was awareness of the difficulty of revalidating the collective agreements in extenso in view of the passage of time and readiness of the complainants 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 keep it informed in this respect.
5. 263. Noting also from the FTUC allegations and the report of the ILO tripartite mission that check-off was effectively restored in the public service but not in Government-owned enterprises and that there were divergences between workers and employers as to the modalities, the Committee welcomes that in the JIR the parties have reached agreement on the restoration of check-off facilities, and once again urges the Government to ensure that swift arrangements are made between the parties to ensure the full reactivation of the check-off facility in the public sector and the relevant sectors considered as “essential national industries”. The Committee also requests the Government to respond to the latest allegations from the FICTU relating to the JIR and the ERP amendment adopted on 10 February 2016.
6. 264. With respect to the Public Order (Amendment) Decree No. 1 of 2012 (POAD), the Committee notes that, according to the Fiji Constitutional Process (Amendment) Decree No. 80 of 2012, the suspension of the application of section 8 of the Public Order Act as amended by the POAD is no longer valid. The Committee also notes that, according to the report of the ILO tripartite mission, the FTUC criticized the adverse effects of the POAD on legitimate union activities, including meetings, whereas the Solicitor-General considered that the POAD only applied to public meetings and did not normally concern trade union meetings. The Committee wishes to recall that permission to hold public meetings and demonstrations, which is an important trade union right, should not be arbitrarily refused [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 142]. Recalling the conclusions that the Committee made in this regard when examining this case at its meeting in November 2012 [see 365th Report, paras 772–775], the Committee once again requests the Government to consider abrogation or amendment of the POAD so as not to place unjustified restrictions on freedom of assembly. Furthermore, it again requests the Government to reinstate Mr Rajeshwar Singh, FTUC Assistant National Secretary, in his position representing workers’ interests on the ATS Board without delay, should this not yet be the case.
7. 265. With regard to the 2013 Political Parties Decree, the Committee notes that, under its section 14, persons holding an office in any workers’ or employers’ organization are banned from membership or office in any political party and from any political activity, including merely expressing support or opposition to a political party. The Committee observes that, according to the report of the ILO tripartite mission, the Solicitor-General stated that the Political Parties Decree prohibited political functions and activities that compromised not only union office, but all public offices. The Committee notes the Government’s indication to the Committee of Experts on the Application of Conventions and Recommendations (CEACR) that the same rules apply to other tripartite partners and affiliates of employers’ organizations, the public service and the judiciary; and that the purpose was to provide a fair political participation process and prevent the use of undue influence to gain advantage in the political arena. The Committee recalls that a general prohibition on trade unions from engaging in any political activities would not only be incompatible with the principles of freedom of association, but also unrealistic in practice. Trade union organizations may wish, for example, to express publicly their opinion regarding the government’s economic and social policy. However, trade union organizations should not engage in political activities in an abusive manner and go beyond their true functions by promoting essentially political interests [see Digest, op. cit., paras 502 and 503]. The Committee requests the Government to take measures to review section 14 of the Political Parties Decree in consultation with the representative national workers’ and employers’ organizations with a view to its amendment so as to ensure respect for these principles.
8. 266. The Committee draws the legislative aspects of this case to the attention of the CEACR.

Trade union rights and civil liberties in practice

1. 267. With respect to the alleged acts of assault, harassment and intimidation of trade union leaders and members for their exercise of the right to freedom of association, the Committee notes that the CEACR had previously noted with interest that the investigation into the assault of Felix Anthony, National Secretary of the FTUC and General Secretary of the Fiji Sugar and General Workers’ Union (FSGWU), had been reactivated by the Police Commissioner, and recently noted that the relevant investigation file had been forwarded to the Office of the Director of Prosecutions on 25 February 2015 and that Mr Anthony failed to provide a formal statement indicating his willingness to pursue the case and to submit the outstanding medical reports. The Committee requests the FTUC to provide information in this respect, failing which it will no longer pursue the examination of this allegation with respect to Mr Anthony. Similarly, the Committee also requests the complainants to furnish further information on the alleged acts of assault, harassment and intimidation against Mr Attar Singh (General Secretary of the FICTU), Mr Mohammed Khalil (President of the FSGWU – Ba Branch General), Mr Taniela Tabu (Secretary of the Viti National Union of Taukei Workers) and Mr Anand Singh (lawyer), should there be pending issues in this regard.
2. 268. With respect to the criminal charges related to his exercise of trade union activity brought against Mr Daniel Urai, the FTUC President and General Secretary of the National Union of Hospitality, Catering and Tourism Industries Employees (NUHCTIE), the Committee is pleased to note that, as reported by the CEACR, the sedition charges brought against Mr Urai and another person four years ago had been dropped, which entailed the passport return and the lifting of a travel ban. As regards the remaining criminal charges of unlawful assembly on the grounds of failure to observe the terms of the Public Emergency Regulations (PER), the Committee once again urges the Government to take the necessary measures to ensure that these are also immediately dropped, and requests the Government once again to indicate whether there are any charges still pending against Mr Nitendra Goundar, a NUHCTIE member.
3. 269. While it understands that Tevita Koroi, former school principal and ex-President of the Fijian Teachers’ Association (FTA), has left the country, the Committee reiterates its expectation that, after seven years, his case will be deliberated by the ERAB without further delay, and that, in the framework of this exercise, the conclusions that the Committee made in this regard when examining this case at its meeting in November 2010 [see 358th Report, paras 550–553] will be duly taken into account, with a view to rehabilitating Mr Koroi.
4. 270. The Committee requests the Government to provide without delay its observations to the following allegations of the complainants for which no further information has been provided, and invites the complainants to furnish further information on the status of these matters: (i) members of the FSGWU have been threatened and intimidated by military and the management of the government-owned Fiji Sugar Corporation (FSC) before and during the holding of the strike ballot end of July 2013 and continued to be intimidated following the successful strike vote; (ii) the management dispatched former military officers and prohibited a union meeting end of August 2013 upon arrival of Felix Anthony, although the meeting was scheduled during lunch hour and outside the premises of the mill; (iii) on 6 September 2013, over 30 protestors, including political party and trade union leaders, who had assembled to denounce the entry into force of the new constitution, were arrested; (iv) on 9 January 2014, six union leaders from the NUHCTIE, including its General Secretary and at the same time FTUC President Daniel Urai, were arrested and charged for what the Government declared to be an “unlawful strike” and released a few days later on harsh bail conditions; (v) the denial of trade union access to the workplace in government-owned enterprises coupled with acts of harassment and intimidation of union members; and (vi) non-existence in practice of collective bargaining in the public sector and in the private sector where the industry or company is classified as “essential services”.

The Committee’s recommendations

1. 271. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Warmly welcoming the signature of the Joint Implementation Report (JIR) of 29 January 2016 signed in the wake of the ILO tripartite mission, as well as the adoption on 10 February 2016 of the Employment Relations (Amendment) Act of 2016 introducing the changes agreed to in the JIR, the Committee is pleased to note the progress which has given rise to the Governing Body decision that the article 26 complaint would not be referred to a commission of inquiry, and that the procedure be closed. The Committee requests the Government to keep it informed of the developments in relation to the follow-up given to the JIR and the 2016 ERP amendment.
   • (b) Welcoming that in the JIR the parties have reached agreement on the restoration of check-off facilities, the Committee also urges the Government once again to ensure that swift arrangements are made between the parties to ensure the full reactivation of the check-off facility in the public sector and the relevant sectors considered as “essential national industries”.
   • (c) The Committee asks the Office to provide as soon as possible the requested technical assistance in respect of the list of essential services and industries, and requests the Government to keep it informed of any developments in this regard.
   • (d) With respect to the alleged acts of assault, harassment and intimidation of trade union leaders and members for their exercise of the right to freedom of association, the Committee requests the FTUC to provide information on the developments reported by the Government, failing which it will no longer pursue the examination of these allegations with respect to Mr Anthony. The Committee also requests the complainants to furnish further information on the alleged acts of assault, harassment and intimidation against Mr Attar Singh (General Secretary of the FICTU), Mr Mohammed Khalil (President of the Fiji Sugar and General Workers’ Union (FSGWU) – Ba Branch General), Mr Taniela Tabu (Secretary of the Viti National Union of Taukei Workers) and Mr Anand Singh (lawyer), should there be pending issues in this regard.
   • (e) With respect to the criminal charges related to the exercise of trade union activity brought against Mr Daniel Urai, FTUC President and General Secretary of the National Union of Hospitality, Catering and Tourism Industries Employees (NUHCTIE), the Committee, pleased to note that the sedition charges brought against him and another person four years ago had been dropped, once again urges the Government, as regards the remaining criminal charges of unlawful assembly on the grounds of failure to observe the terms of the PER, to take the necessary measures to ensure that these charges are also immediately dropped, and requests the Government once again to indicate whether there are any charges still pending against Mr Nitendra Goundar, a NUHCTIE member.
   • (f) Welcoming the repeal of the ENID by the 2015 amendment of the ERP and highlighting the need to remedy the persisting negative impact of the ENID after its repeal, the Committee recalls its previous conclusions that the abrogation by the ENID of the collective agreements in force is contrary to Article 4 of Convention No. 98 concerning the encouragement and promotion of collective bargaining, and requests the Government to devise ways as to how to address the issue, and to keep it informed in this respect.
   • (g) The Committee once again requests the Government to consider abrogation or amendment of the POAD so as not to place unjustified restrictions on freedom of assembly. Furthermore, it again requests the Government to reinstate Mr Rajeshwar Singh, FTUC Assistant National Secretary, in his position representing workers’ interests on the ATS Board without delay, should this not yet be the case.
   • (h) The Committee requests the Government to take measures to review section 14 of the Political Parties Decree in consultation with the representative national workers’ and employers’ organizations with a view to its amendment so as to ensure respect for the principles enunciated in its conclusions.
   • (i) The Committee reiterates its expectation that, after seven years, the case of Tevita Koroi will be deliberated by the ERAB without further delay, and that, in the framework of this exercise, the conclusions that the Committee made in this regard when examining this case at its meeting in November 2010 [see 358th Report, paras 550–553] will be duly taken into account, with a view to rehabilitating Mr Koroi.
   • (j) The Committee requests the Government to provide without delay its observations to the remaining allegations of the complainants, specified in its conclusions, and invites the complainants to furnish further information on the status of these matters.
   • (k) The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.