Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Abolition of Forced Labour Convention, 1957 (No. 105) - Fiji (Ratification: 1974)

Other comments on C105

Observation

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Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 110th Session, May–June 2022)

The Committee notes the discussion that was held by the Committee on the Application of Standards at the 110th Session of the International Labour Conference (June 2022) regarding the application of the Convention. The Committee observes that the Conference Committee noted with deep concern the repeated failure of the Government to bring its national legislative framework into conformity with the Convention so as to allow trade unionists to exercise their rights to free assembly and free speech without the threat of penal sanctions involving compulsory labour. The Conference Committee also deplored the systematic use of penal sanctions against workers and their representatives. The Conference Committee urged the Government to take effective, urgent and time-bound measures to amend the corresponding legislation.

The Committee notes the observations of the International Organisation of Employers (IOE) received on 25 August 2022, the observations of the International Trade Union Confederation (ITUC) received on 1 September 2022, as well as those received from the Fiji Trades Union Congress (FTUC) received on 2 September 2022, all of which reiterate their concerns expressed during the discussion of the case by the Conference Committee.

The Committee notes with deep regret that the Government merely indicates in its report that it maintains its stance as reflected in its report submitted to the Committee in 2021and that there have been no amendments to the Public Order Act and the Crimes Act. Therefore, in line with the Conference Committee’s conclusions, the Committee urges the Government to take immediate and effective measures to amend the legislation referred to in its previous comments which read as follows:

Article 1(a) of the Convention. Sanctions of imprisonment involving compulsory labour as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. The Committee previously noted the following legislative provisions, which are worded in such general terms that may lead to the imposition of penalties involving compulsory labour (by virtue of section 43(1) of the Prisons and Corrections Act 2006) for activities that could be linked to the expression of political views or views ideologically opposed to the established political, social and economic order:

Public Order Act (POA), as amended by the Public Order (Amendment) Decree 2012:

–Section 14, which provides for sanctions of imprisonment for up to three years for using threatening, abusive or insulting words in any public place or any meeting, or behaves with the intent to provoke a breach of peace or whereby such a breach is likely to be occasioned; and having been given by any police officer any directions to disperse or to prevent obstruction or for the purpose of keeping order in any public place, without lawful excuse, contravenes or fails to obey such direction.
–Section 17, which provides for sanctions of imprisonment for up to 10 years for spreading any report or making any statement, which is likely to undermine or sabotage, or attempt to undermine or sabotage the economy or financial integrity of Fiji.

Crimes Act 1999:

–Section 67(b), (c) and (d), which provides for sanctions of imprisonment for seven years for uttering any seditious words; printing, publishing, selling, offering for sale, distributing or reproducing any seditious publication; or importing any seditious publication.
The Committee notes that the Government indicates in its report that the Public Order Act is in place to ensure the safety of people from acts of terrorism, racial riots, religious and ethnic vilification, hate speech and economic sabotage.
The Committee recalls that the Convention protects persons who express political views or views ideologically opposed to the established political, social or economic system by establishing that in the context of these activities they cannot be punished by sanctions involving an obligation to work. The range of activities protected include the right to freedom of expression exercised orally or through the press and other communications media, as well as the right of association and of assembly, through which citizens seek to secure the dissemination and acceptance of their views. While recognizing that certain limitations may be imposed on these rights as normal safeguards for public order to protect society, such limitations must be strictly within the framework of the law. In this respect, the protection provided for by the Convention does not extend to persons who use violence, incite to violence or engage in preparatory acts aimed at violence.
In this respect, the Committee observes that in its comments under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), it noted the allegations of the International Trade Union Confederation (ITUC) and the Fiji Trades Union Congress (FTUC) denouncing that permissions for union meetings and public gatherings continued to be arbitrarily refused, and that section 8 of the POA (as amended by the 2012 Decree) has been increasingly used to interfere in, prevent and frustrate trade union meetings and assemblies. The Committee notes in this regard that according to section 10 of the POA, a person who takes part in a meeting or procession for which no permit has been issued or in contravention of the provisions of the POA is liable to a prison sentence (involving compulsory prison labour).

Therefore, the Committee requests the Government to review sections 10, 14 and 17 of the POA and section 67(b), (c) and (d) of the Crimes Act to ensure that, both in law and practice, persons who express political views or views opposed to the established political, social and economic system, including through the exercise of their right to freedom of expression or assembly, are not liable to penal sanctions involving compulsory labour, including compulsory prison labour. The Committee further requests the Government to provide information on the manner in which the above-mentioned legislative provisions are applied in practice, including information on the number of prosecutions initiated, convictions handed down, specific penalties applied and on the facts that led to the convictions, as well as information on the grounds on which permits for public meetings and gatherings are granted or refused.

Article 1(d) of the Convention. Penal sanctions involving compulsory labour for having participated in strikes. The Committee previously noted that, according to section 191 BQ (1) of the Employment Relations (Amendment) Act 2015, breaking an employment contract for the provision of essential service and industry, knowing or having reasonable cause to believe that such breaking, either alone or in combination with others, will deprive the public wholly or to a great extent of such service or industry or substantially diminish its enjoyment, constitutes an offence. According to section 256(a) of the Employment Relations Promulgation 2007, such an offence is punishable with imprisonment for up to two years (involving compulsory labour by virtue of section 43(1) of the Prisons and Corrections Act 2006). In its report, the Government indicates that it has taken note of the Committee’s comment in this regard.
The Committee recalls that Article 1(d) of the Convention sets forth the principle that no sanctions involving compulsory labour, including compulsory prison labour, may be imposed on persons for the mere fact of peacefully participating in a strike. The Committee has indicated that when sanctions involving compulsory labour may exist for impairing or endangering the operation of essential services, this should be limited to situations where there is an effective danger, not mere inconvenience (2007 General Survey on the eradication of forced labour, paragraph 175).
Referring to its comments under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) in relation to the need to review the list of essential services and the limitations on the right to strike in essential services, the Committee requests the Government to take the necessary measures to ensure that, both in law and in practice, no persons may be subject to sanctions involving compulsory labour for peacefully participating in strikes. In this regard, the Committee requests the Government provide information on the application in practice of section 191 BQ (1) of the Employment Relations (Amendment) Act 2015, including copies of any relevant court decision, indicating the grounds for prosecution and the penalties imposed, in order to enable the Committee to assess its scope of application.