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

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

Other comments on C098

Observation

Direct Request

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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.