Effect given to the recommendations of the committee and the Governing Body - Report No 386, June 2018

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

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

1. 18. The Committee last examined this case, in which the complainants alleged 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, at its March 2017 meeting [see 381st Report, approved by the Governing Body at its 329th Session, paras 36–55]. On that occasion, the Committee requested the Government to: (i) keep it informed on the functioning in practice of the Employment Relations Advisory Board (ERAB) and the Arbitration Court, including the progress achieved by these entities; (ii) indicate whether all collective agreements abrogated by the Essential National Industries (Employment) Decree, 2011 (ENID) were replaced by newly negotiated collective agreements and, should this not be the case, to take the necessary measures to ensure that, at least in the public sector, collective agreements abrogated by the ENID could be used as a basis for renegotiations; (iii) ensure that the the Public Order (Amendment) Decree No. 1 of 2012 (POAD) is not used to impede the exercise of freedom of assembly in the context of trade union rights; (iv) reinstate Rajeshwar Singh (the Fiji Trades Union Congress Assistant National Secretary) on the Air Terminal Services (ATS) Board in his position representing workers’ interests without delay, should this not yet be the case; and (v) ensure that all pending criminal charges for unlawful assembly against Mr Daniel Urai and Mr Nitendra Goundar are immediately dropped. The Committee also expressed its expectation that after several years, the case of Mr Tevita Koroi, President of the Fiji Teachers Association (FTA), whose employment was terminated as a result of a disciplinary process in which he was found to be in breach of the Civil Service Act, 1999, would be deliberated by the ERAB without further delay and that the Government would guarantee in the future the right to exercise legitimate trade union activities in the sugar sector and in other “essential national industries”. Finally, the Committee expressed trust that the Government would continue to show commitment to implementing the Joint Implementation Report (JIR) and the 2016 amendment to the Employment Relations Promulgation (ERP) and that workers in sectors considered as “essential national industries” would be able to benefit from the restored check-off facilities in the near future.
2. 19. The Government provides its observations in a communication dated 11 September 2017. With regard to the functioning of the ERAB and the Arbitration Court, the Government indicates that the ERAB, as the main advisory body on employment relations, met in June 2017 to discuss the review of the National Minimum Wage and the Wages Regulations and that the review of the labour laws, as outlined in the JIR, is an ongoing exercise that will continue to be discussed within the mechanism. The Arbitration Court, established as a specialist employment relations court and composed of a tripartite membership to ensure that the principles of social dialogue and tripartism are promoted, handles all employment matters that deal with essential services and industries.
3. 20. Concerning the check-off facilities, the Government states that they have been restored in all public sectors, including in the essential services and industries. As to the collective agreements terminated by the ENID, the Government reiterates that they cannot be restored as of right since new collective agreements have been negotiated and are currently in place. It adds that it is upon the employers and workers to decide whether or not they agree to reinstate previous collective agreements or whether those agreements should form the basis for renegotiations.
4. 21. Regarding the alleged restrictions on freedom of assembly and the POAD, the Government indicates that public order in Fiji is maintained under the Public Order Act, 1978 (POA), section 8 of which stipulates that any person who wishes to organize or convene a meeting or procession in a public place shall first make an application for a permit in that behalf to the appropriate authority. For meetings in public places, a permit is required to ensure the carrying out of administrative functions such as the closure of roads and the provision of law enforcement officers to maintain order; for all other instances a permit is not required. The Government adds that with the promulgation of the Constitution, the Bill of Rights ensures to all Fijians the right to freedom of assembly, association and movement.
5. 22. With regard to the criminal charges pending against Mr Urai and Mr Goundar for the offence of unlawful assembly contrary to the POA, the Government explains that any criminal law breaches are dealt with by the Office of the Director of Public Prosecutions, which is an independent and constitutionally mandated office, and indicates that the proceedings against Mr Urai and Mr Goundar relating to unlawful assembly were discontinued on 6 February 2017. The Government also reiterates that the unlawful strike charges and charges under section 65 of the Crimes Decree have been withdrawn by the State.
6. 23. Concerning the case of Mr Koroi, the Government reiterates information provided previously concerning the circumstances in which his employment was terminated.
7. 24. The Fiji Trades Union Congress (FTUC) provides additional information in a communication dated 26 September 2017 alleging that the Government has not acted in good faith in implementing the JIR, that little or no progress has been made since its signature and that constant requests of the Committee have not yielded many results. Although the Government repealed the ENID, the situation has deteriorated as it is now using alternative methods of individual contracts, intimidation, harassment of workers and misinformation to weaken and discredit trade unions. Furthermore, the Committee’s recommendation to seek technical assistance from the Office to determine the issue of essential services has not been acted upon more than one year and eight months after the signature of the JIR and the complainant is unaware of any technical assistance provided on the promotion of better labour relations in Fiji. The complainant adds that the Government has recently unilaterally imposed a new minimum wage of US$2.68 per hour without any consultation with the FTUC and without approval by the ERAB, that it has reneged on its agreement with the FTUC to review the Labour Law to ensure its compliance with core ILO Conventions, including on the right to strike and definition of essential services, and that despite repeated reminders, it has not convened the ERAB to seriously consider the proposals already agreed on between the Fiji Commerce and Employers Federation (FCEF) and the FTUC.
8. 25. With regard to the functioning of the ERAB and the Arbitration Court, the complainant alleges that: (i) the Government decided who should represent workers and employers in the ERAB, instead of opting for the most representative workers’ and employers’ organizations; (ii) there has been little discussion with Government representatives attending the ERAB, as they have no mandate to make any decisions or to agree with workers’ or employers’ representatives; (iii) there are no monthly meetings of the ERAB and despite numerous reminders, the mechanism has not met since February 2017; (iv) the ERAB is no longer a tripartite body but only bipartite, with workers’ and employers’ representatives active; (v) the Arbitration Court is seriously under resourced, has a backlog of cases, is unable to sit regularly and is not effective and although the intent was to create a new court to deal with disputes of interest without delay, this is not the case as reinstated cases continue to await a hearing; and (vi) the Arbitration Court does not easily award compensation. To further support its allegations, the complainant provides a report from the Confederation of Public Sector Unions (CPSU) which indicates that the Arbitration Court has become a vehicle where disputes can be reported but the adjudication has no time limit; around 186 cases, some older than ten years, must first be dealt with before the Court can address the recent cases concerning pay rise and negotiations on collective agreements and it is possible that these cases will languish in the system for years before being dealt with. Indeed, unless a full-time court is established to deal particularly with the backlog emanating from the JIR, the rest of the current disputes, which have an impact on the livelihood of union members, could remain pending for years (for instance, in 2016, the Fiji Public Service Association (FPSA) filed at least seven cases concerning disputes of interest which require attention without delay since, in view of the lack of intention of the concerned Government entities to negotiate collective agreements, the union members remain unprotected).
9. 26. Concerning collective agreements abrogated by the ENID, the complainant alleges that there have been no new collective agreements negotiated in any government-owned enterprises or the civil service, except for the timber industry, as all other companies and municipalities refused to sign any collective agreements so far, and considers that there is no reason why the old agreements cannot be reinstated. The complainant thus denounces a total absence of collective bargaining in the public sector and provides the following concrete examples:
   • – In September 2017, the Government announced that it would proceed to put all civil servants on individual fixed-term contracts and that there would be a salary adjustment but only for those who signed the new contracts. This was done without any discussions or negotiations with the unions thus disregarding the Government’s commitment to respect workers’ right to bargain collectively and caused great anxiety and concern among the workers. In these circumstances, the public sector unions (FPSA, Fiji Teachers Union (FTU), Fiji Teachers Association and Fiji Nursing Association) filed for a secret ballot for industrial action under section 175 of the Employment Relations Act, objecting to the unilateral imposition of individual fixed-term contracts. While there is no provision in the law for the Registrar of trade unions to do so, the Registrar rejected the notice for secret ballot stating that no negotiations had taken place. On the day of the balloting, the unions were not allowed to enter the workplace for ballots during breaks and the Government issued a memorandum to all civil servants not to participate in the ballot, indicating that such participation would be deemed as insubordination and workers would be disciplined. The unions filed a motion in the Employment Relations Tribunal for an order to allow secret ballots to be held. Furthermore, when the National Union of Workers filed a notice of intention to conduct a secret ballot for strike action on behalf of its members at a painting company to object the employer’s failure to negotiate and conclude an agreement on the union’s log of claims which sought to amend the collective agreement, the Registrar directed the Fiji Elections Office to conduct secret ballots for industrial action, even though the ballot did not provide for election of office bearers, and the union thus refused such interference by the Elections Office.
   • – The Water Authority of Fiji issued a memorandum to all staff stating that on expiry of their individual contracts, staff would have to reapply to the same jobs with no guarantee of continued employment, while at the same time delaying negotiations on a collective agreement.
   • – At ATS (workers represent 49 per cent of the shareholders and the Government holds 51 per cent), Government Board members terminated the directors from the Board and denied workers representation at Board level as required by the company’s rules. The management embarked on violating the collective agreements and a series of suspensions and terminations of workers ensued. Although a list of issues has been provided to the management and the Government, no action is being taken and no collective bargaining is taking place at the company. The workers also gave notice of secret ballots for industrial action but the company filed a motion in court to declare the company as essential services.
10. 27. The report from the CPSU provided by the complainant also denounces a consistent denial of collective bargaining in the public sector for the past ten years and indicates that despite many efforts by public sector unions to enter into collective bargaining, the Government’s denial to engage at any level is more prominent than ever. It further contains the following additional information: (i) even though they are stakeholders, the unions are kept in the dark and can only rely on media statements or occasionally Government statements made in Parliament; (ii) there were only three meetings in the past three years between the Minister for Civil Service and the public sector unions and even these occurred when the subject matter was a “fait accompli”; (iii) the public sector reform seems to be one of the reasons to deny the right to collective bargaining in the public service and, as a result, the role of public sector unions is now confined to making representation on disciplinary cases through the Public Service Disciplinary Tribunal and to the ERP on disputes of rights, as disputes of interest and the functions of employment relations courts have been transferred to the Arbitration Court; (iv) despite constant rhetoric of goodwill, the trade union movement continues to come under constant assault and many of the existing legislations and practices are changed to suit the Government and its entities; (v) the Minister of Employment and the line Minister of the National Fire Authority continue to undermine independent trade unions; and (vi) there is no collective bargaining for wage fixing in the public sector. The report adds that there have been a number of instances of breaches relating to collective bargaining and other trade union rights:
    • – The job evaluation exercise being carried out in the public sector is conducted without participation of public sector unions and represents a unilateral imposition on workers in the civil service.
    • – The Land Transport Authority continues to delay negotiations on a collective agreement and has recently carried out 15 summary dismissals, in most cases without giving reason, in breach of the ERP (the Authority is citing an Employment Court judgment related to another employer which states that reasons were not required for summary dismissals and since the ruling was not appealed, it is used to dismiss workers).
    • – The National Fire Authority sponsored an in-house union against the established FPSA and although the Registrar was warned not to register it, he succumbed to pressure, registered the union and refused to divulge the basis on which it was registered. As the union was formed by the employer under its domination to oust the existing independent union, the matter is now with the Employment Court.
    • – The management of the Fiji Revenue and Customs Authority removed 19 FPSA members from rostered duty, depriving them of 30 per cent of loading on their salaries, and has refused to negotiate a collective agreement for more than two years.
    • – Airports Fiji Limited has refused to negotiate a collective agreement and the CPSU log of claims and the dispute is currently pending with the Arbitration Court, as no other recourse is available under the current labour legislation.
    • – A log of claims by the CPSU has not been acknowledged by the Ministry of Civil Service and the Permanent Secretary of the Ministry refuses to recognize it. The dispute is with the Arbitration Court.
    • – The Ministry of Local Government, Housing and Environment refused to deal with the unions; for instance, an agreement was reached between the FPSA and two local town councils but it needs to be approved by the Ministry who has not acknowledged the union’s letters. The matter is pending with the Arbitration Court.
    • – The FTU and the FTA are facing immense challenges in collective bargaining with the Ministry of Education.
11. 28. With regard to the restrictions to freedom of assembly and the POAD, the complainant indicates that a coalition of non-governmental organizations have already had their application to march refused because it would affect traffic flow, which in the complainant’s view is not a proper justification. The complainant also made an application to march and have a rally in a park in the capital on 21 October 2017 to protest against the unilateral imposition of individual fixed-term contracts, Minimum Wage Labour Law Review and the right to strike and was waiting for a response from the authorities.
12. 29. The complainant further alleges, regarding the Political Parties Decree, that section 14 classifies trade union officials as public officers, while it does not do the same for Government ministries who are paid from the public budget. The complainant asserts that trade unions are membership-based organizations with their own rules that must be free to associate politically or support a party that respects workers’ rights. Trade unionists are not public officials and have individual rights to political affiliation, memberships and to take part in elections. According to the complainant, the restriction in the Political Parties Decree thus goes against the individual rights of trade unionists and trade unions who democratically decide to be politically active and violates freedom of association.
13. 30. Finally, with regard to Mr Tevita Koroi, the complainant indicates that no discussions have been held in any meetings of the ERAB in this respect. 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 (allegations that the Committee stopped examining at its last meeting due to absence of additional information requested from the complainant), the complainant considers that all information that is available in this regard has been provided but there has been no new development since then, that the Government and the police have not acted upon the report of assault filed by Mr Felix Anthony to the police and that the Government Hospital refused to provide a medical report.
14. 31. The Committee takes due note of the information provided by the Government and the FTUC. The Committee welcomes the Government’s indication that the check-off facilities have been restored in all public sectors, including essential services and industries, and that the criminal charges against Mr Urai and Mr Goundar for the offence of unlawful assembly were discontinued in February 2017.
15. 32. With regard to the ERAB and the Arbitration Court, the Committee notes the Government’s indication that the ERAB met in June 2017 to discuss instruments relevant to minimum wage, that in line with the JIR, the review of labour laws is an ongoing exercise that continues to be discussed within the mechanism and that the Arbitration Court, a tripartite employment relations court, handles all employment matters that deal with essential services and industries. While taking due note of the information provided, the Committee observes that the Government does not elaborate on the functioning in practice and progress achieved by these mechanisms, such as concrete results of discussions or matters agreed on within the tripartite ERAB or the number of cases received and resolved by the Arbitration Court. In this regard, the Committee observes that, according to the complainant, the ERAB has not met since February 2017 and its tripartite structure is put into question as Government representatives attending the ERAB have no mandate to take any decisions. The Committee further notes that the complainant denounces the inefficiency and under-resourcing of the Arbitration Court, alleging in particular that although disputes of interest may be referred to the Court, it may take years before such grievances are dealt with due to the important backlog developed by the Arbitration Court. In view of the serious concerns raised by the complainant and considering the important role envisaged for the ERAB and the Arbitration Court, the Committee requests the Government to take the necessary measures to ensure that both mechanisms have at their disposal all necessary means to allow them to function properly and efficiently and to provide detailed information on their functioning in practice, including information on matters discussed within the ERAB and agreements reached by its tripartite components, as well as on the number of grievances received and dealt with by the Arbitration Court. It further expects that the ERAB will meet in the near future so that the technical assistance previously suggested by the Committee with respect to certain issues to be discussed will soon be able to be provided. Further noting the complainant’s allegations that the Government has not acted in good faith in implementing the JIR, that little or no progress has been made since its signature and that the Government unilaterally imposes various decisions to weaken and discredit trade unions, the Committee requests the Government to provide its observations on these allegations and expects it to take the necessary measures to address these concerns and to show good faith and commitment to implementing the JIR in the future.
16. 33. The Committee observes that, with regard to the issue of collective agreements abrogated by the ENID, the information provided by the Government and the complainant is contradictory. While the Government reiterates that new collective agreements were negotiated and are in place and that it is upon workers and employers to decide whether to reinstate previous collective agreements or use them as a basis for renegotiations, the complainant denounces a total absence of collective bargaining and alleges that, except for the timber industry, no new collective agreements were negotiated to replace the repealed ones, as all other companies and municipalities refuse to sign any agreements. The Committee notes the concrete examples provided, where the complainant alleges that collective bargaining was denied or delayed by the State enterprise or that the Government unilaterally imposed its decisions without any consultations with the trade unions. Bearing in mind the negative impact of the abrogation by the ENID of collective agreements in force and in view of the contradictory information provided by the Government and the complainant on the actual state of collective bargaining in the public sector, the Committee recalls that both employers and trade unions should bargain in good faith and make every effort to come to an agreement, and satisfactory labour relations depend primarily on the attitudes of the parties towards each other and on their mutual confidence [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1329]. The Committee, therefore, requests the Government to provide further observations on the above allegations and to take the necessary measures to facilitate negotiations and help promote collective bargaining in the public sector, especially where workers’ organizations encounter barriers or challenges in this regard, so as to create an enabling environment for new collective agreements to be concluded and replace those previously abrogated by the ENID.
17. 34. The Committee further observes from the information provided, that parallel to the alleged absence of collective bargaining, the complainant also denounces other violations of trade union rights, including the establishment of an employer-dominated union, intimidation and threats in the context of strike ballots, interference in the conduct of secret ballots, suspensions and termination of workers and termination of workers’ representatives from their representative role. While it does not have sufficient information to provide full conclusions in this regard, the Committee recalls that the dismissal of workers on grounds of membership of an organization or trade union activities violates the principles of freedom of association. The removal by the Government of trade union leaders from office is a serious infringement of the free exercise of trade union rights. Employers’ and workers’ organizations must be allowed to conduct their activities in a climate that is free from pressure, intimidation, harassment, threats or efforts to discredit them or their leaders, which includes the adulteration of documents. Article 2 of Convention No. 98 establishes the total independence of workers’ organizations from employers in exercising their activities [see Compilation, op. cit., paras 1104, 654, 719 and 1188]. The Committee also emphasizes that workers’ organizations should have the right to organize their administration and activities and to formulate their programmes without any interference by the public authorities. In view of the above, the Committee requests the Government to provide its observations on the above allegations and trusts that any trade union member or leader whose suspension or dismissal proves to be motivated by anti-union reasons will be reinstated without delay. The Committee further expects the Government to guarantee in the future the right to exercise legitimate trade union activities in the public sector, including strike ballots, without any form of intimidation or interference.
18. 35. With regard to the restrictions on freedom of assembly and the POAD, the Committee notes that the Government reproduces the text of section 8 of the POA and reiterates information it has previously provided without, however, indicating whether any concrete measures were taken or are foreseen to ensure that this section is not used to restrict freedom of assembly in the context of trade union rights. In this regard, the Committee notes the additional information provided by the complainant that a coalition of non-governmental organizations has recently seen its request for assembly refused on grounds that it would limit the traffic flow and that the complainant also submitted an application to march and organize a rally in October 2017. The Committee wishes to emphasize once again the importance it attaches to freedom of assembly in the context of trade union rights and requests the Government to provide its observations on the above allegations and to take the necessary measures to ensure that the POAD is not used to impede the exercise of these rights and to keep it informed of any concrete action taken or envisaged in this regard.
19. 36. The Committee further notes that, with regard to the case of Mr Tevita Koroi, the Government simply reiterates information provided previously, in particular that Mr Koroi was terminated as a result of a disciplinary process in which he was found to be in breach of the Civil Service Act, 1999 and observes the complainant’s indication that the case of Mr Koroi has still not been heard by the ERAB. The Committee notes with regret that despite previous indications that the case would be reviewed by the ERAB, the Government does not submit any new information in this regard. The Committee, therefore, reiterates once again its expectation that, after several years, the case of Mr 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 the 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. Further regretting that the Government does not provide any information on the reinstatement of Mr Rajeshwar Singh (FTUC Assistant National Secretary) on the ATS Board, and noting from the additional information provided by the complainant that the new directors representing the workers have now also been removed by the Government, the Committee requests the Government to provide detailed information on these allegations and to reinstate Mr Singh in his position representing workers’ interests without delay, as well as any other workers’ representatives removed for anti-union reasons.
20. 37. Concerning the alleged acts of assaults, harassment and intimidation of trade union leaders and members for their exercise of the right to freedom of association made previously in this case, the Committee recalls that these allegations concerned Mr Anthony (National Secretary of the FTUC and General Secretary of the Fiji Sugar and General Workers’ Union (FSGWU)), Mr Attar Singh (General Secretary of the Fiji Islands Council of Trade Unions), 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). The Committee further recalls that when examining this case in March 2017, it stated that it would no longer pursue the examination of these allegations following the failure of the complainants to provide information on the developments previously reported by the Government. However, noting the complainant’s explanation that all available information has already been provided, that there has been no new development since then and that the Government and the police have not acted upon the report of assault filed by Mr Anthony to the police, the Committee understands that the above allegations may not be entirely resolved and, therefore, invites both the complainants and the Government to indicate whether an independent investigation has been conducted into the alleged acts of assault, harassment and intimidation against Mr Felix Anthony, Mr Mohammed Khalil, Mr Attar Singh, Mr Taniela Tabu and Mr Anand Singh and to transmit detailed information with regard to the outcome of such inquiry, the action taken as a result and any other relevant updated information in this regard.
21. 38. Finally, the Committee recalls that the allegations that section 14 of the Political Parties Decree violates trade union rights were previously examined by the Committee at its June 2016 meeting [see 378th Report, para. 265], at which these legislative aspects were referred to the Committee of Experts on the Application of Conventions and Recommendations.