Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the information contained in the Government’s report including its response to the comments previously made by the Fiji Trades Union Congress (FTUC). It also notes the text of the Employment Relations Bill 2005, which largely replicates the provisions of the Industrial Relations Bill, 2004, with some modifications.

The Committee recalls that its previous comments concerned the need to address or clarify certain discrepancies between the Industrial Relations Bill, 2004, and the Convention. In particular:

1. The Committee had requested that the Government extend the right to organize to prison staff (section 2(2) of the Trade Unions Act and section 3(2) of the Industrial Relations Bill). The Committee notes in this respect that, according to the Government, the prison service is included among the disciplinary forces together with the army and police force and is covered by separate legislation concerning terms and conditions of employment and other grievances. The Committee notes that, under the Convention, prison staff, like all other workers with the possible exception of the army and police force, should have the right to organize; however, this right does not include under the Convention the right to engage in activities like collective bargaining or strikes. The Committee requests the Government to amend the Employment Relations Bill, 2005, accordingly.

2. The Committee had requested that the Government enable workers exercising more than one occupational activity in different occupations or sectors to join the corresponding trade unions as full members (section 21(1) of the Trade Unions Act and section 129(2) of the draft Industrial Relations Bill). The Committee notes that the Government does not provide any information in this respect. The Committee once again asks the Government to amend the Employment Relations Bill, 2005, accordingly.

3. The Committee had requested that the Government limit the genuinely discretionary power given to the Registrar to require a change in the name of a trade union (section 12 of the Trade Unions Act and section 132(2)(iii) of the draft Industrial Relations Bill). The Committee notes that, according to the Government, this provision applies only where trade union names are similar and identical and unions have been previously registered based on ethnicity (at times, objections are raised by cultural organizations as these names may have cultural connotations which could be sensitive to the country’s diverse culture). While taking due note of the country’s particular context, the Committee observes that its comments concerned the need to qualify the Registrar’s authority in the context of trade union registration, so as to establish appropriate safeguards against interference. The Committee therefore once again requests that the Government amend the Employment Relations Bill, 2005, accordingly.

4. The Committee had requested that the Government limit the Registrar’s discretionary power in the case of trade union amalgamation (sections 42 and 46 of the Trade Unions Act and section 132(c)(iii) of the draft Industrial Relations Bill). The Committee notes that, according to the Government, unions have the right of appeal against any of the decisions of the Registrar to the Tribunal under the provisions of section 139 of the Employment Relations Bill, 2005. The Committee takes note of this information with interest. It also notes with interest that the reference to the possibility to refuse the registration of an amalgamation for "valid objections" has been lifted in the Employment Relations Bill, 2005. The Committee asks the Government to indicate progress made in adopting these provisions.

5. The Committee had asked the Government to amend provisions which give the authorities permanent powers of supervision over trade union ballots in a way which constitutes interference contrary to Article 3 of the Convention (clause 13 of the Schedule to section 37 of the Trade Unions Act, sections 10(1) and 10A(a) of the Trade Unions Regulations as amended by the Trade Unions Regulations (Amendment) Regulations, 1991). In this respect, taking due note of section 279 of the draft Industrial Relations Bill, which provides that the Trade Unions Act shall be repealed upon its entry into force, the Committee had requested the Government to confirm that secondary legislation, like the Trade Unions Regulations (especially sections 10(1) and 10A(a)), shall no longer be enforced once the Trade Unions Act has been repealed. Moreover, noting that, under section 278(s) of the draft Industrial Relations Bill, the Minister may make regulations in the future on the conduct of secret ballots by registered trade unions, the Committee had asked the Government to ensure that any future regulations do not involve any interference in trade union elections. The Committee notes that the Government indicates that the Employment Relations Bill, 2005, when enacted, will replace and repeal the Trade Unions Act and Regulations, the Trade Disputes Act, Employment Act and Wages Councils Act. Under the Bill, all ballots on matters like the election of officers, the revision of union rules, the dissolution of unions, the amalgamation of unions, the federation of a union with another union or with a trade union federation and the imposition of levies shall be conducted exclusively by the unions. The Committee takes note of this information with interest and requests that the Government indicate progress made in adopting these provisions.

6. The Committee had requested that the Government leave to trade union constitutions and rules the issue of sanctions against trade union members for refusal to participate in a strike (sections 13 of the Trade Unions Act and 187(1) of the draft Industrial Relations Bill). The Committee notes that the Government is of the view that such a provision upholds the freedom of an individual to decide whether or not to take part in an unlawful strike. The Committee considers that this provision is not incompatible with the Convention to the extent that it precludes disproportionate sanctions like expulsion. On the other hand, milder sanctions should be left up to the union members to decide on the basis of their rules. The Committee requests the Government to amend the Employment Relations Bill, 2005, accordingly.

7. The Committee had requested that the Government introduce further flexibility into the occupational requirement for participation in trade union elections (section 31(1) of the Trade Unions Act and section 136(1)(a) of the draft Industrial Relations Bill). The Committee notes that the Government emphasizes that a certain flexibility already exists as the Employment Relations Bill, 2005, which allows unions to recruit their treasurer and secretary from outside the occupation with which they are directly concerned. The Committee considers that, rather than excluding specific posts from the occupational requirement (treasurer, secretary), it might be preferable to allow for a certain proportion of the officers to come from outside the particular profession so as to introduce sufficient flexibility, and it therefore requests that the Government amend the Employment Relations Bill, 2005, accordingly.

8. The Committee further notes that the Employment Relations Bill, 2005, provides in section 127(d) that a person who is not a citizen of Fiji may not be an officer of a trade union. The Committee recalls that legislation should allow foreign workers to take up trade union office, at least after a reasonable period of residence in the host country (see General Survey on freedom of association and collective bargaining, 1994, paragraph 118) and requests that the Government amend this provision accordingly.

9. The Committee had requested the Government to lift provisions which allow the Registrar to examine trade union books at any time (sections 53(1) and 57(1) of the Trade Unions Act, section 137(2) and (3) of the draft Industrial Relations Bill as well as section 57(2) of the Trade Unions Act). The Committee notes that the Government indicates that such provisions are only applied where a complaint has to be investigated, in the case of allegations of embezzlement or when the annual returns give rise to a consent to inspect the accounts. The Committee requests the Government to introduce such qualifications expressly in the text of the draft Employment Relations Bill, 2005, so as to ensure that the power of the Registrar is sufficiently circumscribed.

10. The Committee had requested that the Government ensure that provisions, which render the legality of strike ballots conditional on whether all trade union members actually voted (section 10B(i) of the Trade Unions Regulations), will no longer be enforced once the Trade Unions Act has been repealed by virtue of the adoption of the draft Industrial Relations Bill, and also ensure that strike ballots can take place in the future without any undue obstacles. The Committee notes that the Government indicates that a strike ballot is provided for under the Bill, and is the only one which is supervised by the office of the Registrar to ensure that, once the results are in favour, the office of the Registrar can facilitate quick resolution of the disputes in essential services. The Committee takes note of this information with interest and requests that the Government indicate progress made in adopting these provisions.

11. The Committee had requested that the Government ensure that responsibility for declaring a strike illegal does not lie with the Government, but with an independent body which has the confidence of the parties involved (sections 8-10A of the Trade Disputes Act and sections 183-185 of the draft Industrial Relations Bill). The Committee notes that the Government indicates that, although the Bill empowers the Minister to declare a strike unlawful, he/she is not empowered to order its cessation, as this power is vested only with the Employment Court upon an injunction made by the Minister, employer or the union, as the case may be. The Committee is of the view that an independent body, such as the courts, should decide whether to declare a strike illegal and whether to order its cessation. It requests that the Government amend the Employment Relations Bill, 2005, accordingly.

12. The Committee had requested that the Government limit the possibility of imposing compulsory arbitration to cases where it is compatible with the Convention (either at the request of both parties to a dispute or in essential services in the strict sense of the term or for public servants exercising authority in the name of the State (section 6(2)(a) of the Trade Disputes Act and section 213 of the draft Industrial Relations Bill). The Committee notes that the Government indicates that these provisions are in line with the overarching objective of the Bill to provide productive employment relationships based entirely on the principle of good faith and that all disputes should have finality. The Committee once again underscores that compulsory arbitration is acceptable under the Convention only in the specific cases noted above and requests the Government to amend the Bill accordingly.

13. The Committee had requested the Government to restrict the list of essential services in which the right to strike may be prohibited, taking into account the possibility of introducing minimum services given the specific circumstances, for certain of the services on the list of essential services (section 2 of the Trade Disputes Act as enlarged by the Trade Disputes Act (Amendment) Decree No. 27 of 1992). The Committee notes that, according to the Government, the vulnerability of the country in terms of economic recovery and the need for investor confidence raise the need to retain the current list of essential services. The Bill would be subject to review where consideration could be given to reducing the list depending on the country’s progress. The Committee reiterates that, under the Convention, essential services in the strict sense of the term are only those the interruption of which would endanger the life, personal safety or health of the whole or part of the population. It therefore asks the Government to amend the Employment Relations Bill, 2005, accordingly.

14. The Committee had asked the Government to ensure that prison sentences in the case of strike action are only imposed for penal violations, are justified by the seriousness of the offences committed and are accompanied by sufficient judicial safeguards (section 10A(b) of the Trade Unions Regulations and section 278(3) of the draft Industrial Relations Bill). In this context, the Committee had asked the Government to ensure that section 10A(b) of the Trade Unions Regulations shall no longer be enforced once the Trade Unions Act has been repealed by virtue of the adoption of the Industrial Relations Bill. The Committee notes that, according to the Government, after the adoption of the Employment Relations Bill, 2005, section 10A(b) of the Trade Union Regulations shall no longer be enforced. There is also a provision for appeal from the Tribunal to the Employment Court and to the highest court of Fiji against such sentences. The Committee takes note of this information with interest and requests that the Government indicate progress made in adopting these provisions.

The Committee requests that the Government provide information in its next report on all the issues noted above. Noting with interest the significant progress made in bringing the draft legislation into conformity with the Convention, the Committee expresses the hope that the Government will be in a position to bring the Employment Relations Bill, 2005, fully in line with the Convention. It requests that the Government keep it informed of progress made in the process of adoption of the Bill.

Finally, noting that in its previous comments the Committee had asked the Government to transmit the text of the Industrial Associations Act which regulates employers’ organizations, and that the Government’s report does not contain any information in this respect, the Committee once again reiterates this request.