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

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Fiji (Ratification: 2002)

Other comments on C087

Observation

Direct Request

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The Committee notes the observations from the International Organisation of Employers (IOE) received on 1 September 2016, which are of a general nature. The Committee notes the observations provided by the International Trade Union Confederation (ITUC) in a communication received on 1 September 2016 referring to matters under examination by the Committee. It also notes the observations from Education International (EI) and the Fiji Teachers’ Union (FTU) received on 6 September 2016 concerning the delay in setting up labour courts, which is penalizing teachers who are waiting for their cases to be heard. The Committee requests the Government to provide its comments thereon.

Complaint made under article 26 of the Constitution of the ILO for non-observance of the Convention. The Committee recalls that a complaint under article 26 of the ILO Constitution alleging the non-observance of the Convention No. 87 by Fiji, had been submitted by a number of Workers’ delegates at the 2013 International Labour Conference, and was declared receivable; that a Tripartite Agreement was signed on 25 March 2015 by the Government, the Fiji Trades Union Congress (FTUC) and the Fiji Commerce and Employers’ Federation (FCEF); and that the Government was requested to accept a tripartite mission to review the ongoing obstacles to the submission of a Joint Implementation Report (JIR) and consider all matters pending in the article 26 complaint. 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 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 continue to provide information on the developments in relation to the follow-up given to the JIR and the 2016 amendment of the Employment Relations Promulgation (ERP).

The Committee notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2723 drawing the legislative aspects of the case to the attention of the Committee of Experts (378th Report, paragraph 271).

Trade union rights and civil liberties. The Committee recalls that in its previous comments it had noted with satisfaction that the sedition charges brought against Mr Daniel Urai (President of the FTUC) four years ago, had been dropped, and expressed the strong hope, that the remaining charges against Mr Urai, of unlawful assembly on the grounds of failure to observe the terms of the Public Emergency Regulations (PER), would equally be dropped without delay. The Committee notes that the Government indicates that the matter was set for mention on 30 March 2015 to fix a trial date and provides no more up-to-date information. Noting the Government’s statement that all past and pending charges against Mr Urai were brought in relation to the commission of separate criminal offences and not in relation to his trade union membership, the Committee observes that the conduct of trade union meetings is a key trade union activity and that it had previously considered the meeting permit requirements laid down in the now repealed PER contrary to the Convention. The Committee once again urges the Government to take the necessary measures to ensure that the remaining charges against Mr Urai are immediately dropped. The Committee also notes that the Government confirms that the charges against Mr Nitendra Goundar, a member of the National Union of Hospitality, Catering and Tourism Industries Employees, are still pending and that his case would be called for mention on 20 June 2016 in the Nadi Magistrates Court. The Committee requests the Government to provide details as to the nature of the charges brought against Mr Goundar and to take measures to drop them should they be related to trade union activities.

Legislative issues

Article 2 of the Convention. Right of workers to establish and join organizations of their own choosing. The Committee recalls that, in its previous comments, it had welcomed the repeal of Essential National Industries Decree No. 35 of 2011 (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. Having noted the issues relating to the creation of bargaining units that had been raised during the ILO direct contacts mission in 2014, and noting the concerns expressed during the ILO tripartite mission in 2016 that the 2015 amendment of 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.

The Committee notes that the ITUC states that, although the parties agreed in the JIR that the Employment Relations Advisory Board (ERAB) will continue its work in reviewing labour laws including the ERP matrix so as to ensure compliance with ILO Conventions ratified by Fiji, the matter has been sitting in the ERAB without much progress due to the fact that the ERAB now comprises 31 mostly new members (ten worker, ten employer and ten government representatives plus the chairperson), and that the worker and employer representatives are chosen by the Government and not wholly nominated by the most representative employers’ and workers’ organizations (FTUC and FCEF). The Committee observes that similar issues arise, according to the ITUC, with respect to the nominations to the workers’ and employers’ panels feeding into the composition of the Arbitration Court. The ITUC indicates that four ERAB government representatives have been included in the employers’ panel and that many representatives on the workers’ panel are unknown to the FTUC. The Committee considers that the right to participate in national tripartite bodies, and the right to nominate delegates to international bodies should remain the prerogative of representative national workers’ and employers’ organizations. Referring as well to its comments under the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), the Committee requests the Government to provide information on the composition of the ERAB and the Arbitration Court, and to explain the manner in which the representative national workers’ and employers’ organizations have been able to determine their representatives.

The Committee had previously urged the Government: (i) to re-register the trade unions that had been deregistered by virtue of section 6 of the ENID; and (ii) to implement the recommendation of the ERAB to reinitiate the resolution of the disputes that had been discontinued by section 26 of the ENID. The Committee notes that, as agreed by the parties in the JIR, the Employment Relations (Amendment) Act 2016 provides that: (i) any trade union which was deregistered as a result of the ENID shall be entitled to apply to be registered again in accordance with the ERP and shall not be required to pay any registration fees provided, however, that the trade union must apply for registration within seven days from the date of commencement of this provision; and (ii) individual grievance cases filed by employees with the Employment Tribunal, which had been discontinued under the ENID and the 2011 ERP Amendment Decree, are hereby reinstated and shall be determined by the Arbitration Court. Concerning the first point, the Committee notes the Government’s indication that the Office of the Registrar of Trade Unions did not re-register any trade unions as records showed that deregistration did not occur. Recalling that trade unions were required to re register under the ENID, the Committee requests the Government to indicate whether the registration of trade unions that did not re-register or were not re registered under the ENID is being considered valid in essential national industries. As regards the second point, the Committee notes that the ITUC indicates that the Arbitration Court is still not operational, although the Government has committed to operationalize it in the near future and the Court has claimed to begin preliminary hearings on 19 September 2016. Observing that the negative effects of the ENID on the trade union movement still persist, the Committee hopes that the Government will accelerate the operationalization of the Arbitration Court so as to ensure the expeditious adjudication of the reinstated individual grievances.

Furthermore, the Committee had previously noted that the following issues previously raised were still pending after the adoption of the Employment Relations (Amendment) Act 2015 and notes that they have not been addressed by the Employment Relations (Amendment) Act 2016: denial of right to organize to prison guards (section 3(2)); and excessively wide discretionary power of the Registrar in deciding after consultation whether or not a union meets the conditions for registration under the ERP (section 125(1)(a) as amended). Noting the Government’s indication that ERAB meets monthly to review labour laws to ensure compliance with ratified ILO Conventions, the Committee, with reference to its earlier comments, once again requests the Government to review the abovementioned 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.

Article 3. Right of organizations to elect their representatives in full freedom, organize their activities and formulate their programmes. The Committee had previously observed 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 whole of the public service (that is government, statutory authorities, local authorities and government commercial companies). The Committee welcomes that, according to the JIR, the tripartite partners agreed to invite the Office to provide technical assistance and expertise to assist the ERAB to consider, gauge and determine the list of essential services and industries. The Committee also notes that the Committee on Freedom of Association asked the Office to provide as soon as possible the requested technical assistance in respect of the list of essential services and industries, and requested the Government to keep it informed of any developments in this regard. Noting the Government’s indication that it has sought technical assistance and advice from the Office, the Committee requests that, as soon as the technical assistance has been provided, the Government supply information on any developments regarding the modification of the list of essential services.

The Committee had previously noted that the following issues previously raised were still pending after the adoption of the Employment Relations (Amendment) Act 2015 and notes that they have not been addressed by the Employment Relations (Amendment) Act 2016: obligation of union officials to be employees of the relevant industry, trade or occupation for a period of not less than three months (section 127(a) as amended); prohibition of non-citizens to be trade union officers (section 127(d)); interference in union by-laws (section 184); excessive power of the Registrar to request detailed and certified accounts from the treasurer at any time (section 128(3)); provisions likely to impede industrial action (sections 175(3)(b) and 180); and compulsory arbitration (sections 169 and 170; section 181(c) as amended; new section 191BS (formerly 191(1)(c)); and penalty in form of a fine in case of staging an unlawful but peaceful strike (sections 250 and 256(a)). Furthermore, the Committee had previously noted with concern the following additional discrepancies between the provisions of the ERP, as amended in 2015, and the Convention, and observes that they have not been addressed by the Employment Relations (Amendment) Act 2016: provisions likely to impede industrial action (section 191BN); penalty of imprisonment in case of staging a (unlawful or possibly even lawful) peaceful strike in services qualified as essential (sections 191BQ(1), 256(a), 179 and 191BM); excessively wide discretionary powers of the Minister with respect to the appointment and removal of members of the Arbitration Court and appointment of mediators, calling into question the impartiality of the dispute settlement bodies (sections 191D, 191E, 191G and 191Y); compulsory arbitration in services qualified as essential (sections 191Q, 191R, 191S, 191T and 191AA). In light of the abovementioned expanded list of essential services, the Committee reiterates that these restrictions, while not providing for an outright prohibition of industrial action, cover a broad range of the economy, and that the cumulative effect of the established system of compulsory arbitration applicable to “essential services”, and the accompanying harsh penalties involving imprisonment, is to effectively prevent or repress industrial action in these services. In the absence of information provided by the Government in relation to the above provisions, and noting the Government’s indication that ERAB meets monthly to review labour laws to ensure compliance with ratified ILO Conventions, the Committee, with reference to its earlier comments, once again requests the Government to take measures to review the abovementioned 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.

Public Order (Amendment) Decree. The Committee notes that, according to 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 Public Order (Amendment) Decree No. 1 of 2012 (POAD), which placed unjustified restrictions on freedom of assembly, 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 considers that permission to hold public meetings and demonstrations, which is an important trade union right, should not be arbitrarily refused. The Committee urges the Government to take measures to bring section 8 of the POAD into line with the Convention by fully repealing or amending this provision so as to ensure that the right to assembly is freely exercised.

Electoral Decree. The Committee previously noted that section 154 of Electoral Decree No. 11 of 27 March 2014 as amended provides that the Fiji Elections Office (FEO) shall be responsible for the conduct of elections of all registered trade unions, and firmly hoped that any supervision of elections of employers’ or workers’ organizations would be carried out by an independent body. The Committee notes the election guidelines supplied by the Government, and observes that, as signalled by the ITUC, section 17(8) of the Electoral Decree provides that the decision of the Electoral Commission on any complaint from the decision of the Supervisor shall be final and shall not be subject to any further appeal to or review by any court, tribunal or any other adjudicating body. The Committee expects that the Government will not unduly interfere in trade union elections taking due account of the organizations’ constitution and by-laws, and requests the Government to take measures to ensure that any decision of the FEO may be subject to judicial review, so as to give effect to the right of workers’ and employers’ organizations to elect their representatives in full freedom.

Constitution of the Republic of Fiji of 2013. The Committee recalls that in its previous comments it had noted with deep concern that the rights relating to freedom of association enshrined in the new Constitution (articles 19 and 20) are subject to broad exceptions and limitations for the purpose of regulating trade unions, collective bargaining processes and “essential services and industries, in the overall interests of the Fijian economy and the citizens of Fiji”, which could be invoked to undermine the underlying rights. The Committee observes that the Government, in response to its previous request to provide information on any court judgments interpreting these constitutional provisions, refers to certain judicial decisions concerning international law in general but not the Convention in particular. In light of the ITUC’s continuing concerns that these limitations could potentially be interpreted to permit very broad restrictions on the fundamental right to freedom of association, the Committee trusts that the Government will provide information on court judgments, if any, interpreting articles 19 and 20 relating to freedom of association, which the Committee hopes will be applied in full conformity with the provisions of the Convention.

Political Parties Decree. The Committee recalls that, in its previous comments, it had noted that, under section 14 of the 2013 Political Parties Decree, 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; and that sections 113(2) and 115(1) of the Electoral Decree prohibit any public officer from conducting campaign activities, and any person, entity or organization that receives any funding or assistance from a foreign government, intergovernmental or non-governmental organization to engage in, participate in or conduct any campaign (including organizing debates, public forums, meetings, interviews, panel discussions, or publishing any material) that is related to the election; and had requested information in this regard. The Committee notes that the Committee on Freedom of Association (CFA) requested 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 the CFA’s conclusions. The Committee notes that the Government confines itself to indicating that it has undertaken reforms including of the voting system to create transparent rules of governance and that the provisions seek to ensure the political neutrality of public officers, which include trade union officers. Noting the Government’s indication that trade union officials in Fiji have recently contested general elections and that most of them were unsuccessful and have returned to their former trade union positions, the Committee further notes that the Political Parties Decree goes very far in prohibiting any expression of political support or opposition by officers of employers’ or workers’ organizations. The Committee, therefore, once again requests the Government to take measures to review the above provisions accordingly, in consultation with the representative national workers’ and employers’ organizations, with a view to their amendment.