Informe provisional - Informe núm. 362, Noviembre 2011

1. 809. The Committee last examined this case at its November 2010 meeting, when it presented an interim report to the Governing Body [358th Report, paras 523–558 approved by the Governing Body at its 309th Session (November 2010)].
2. 810. The complainants submitted new allegations in communications dated 18 February and 10 March 2011. The International Trade Union Confederation (ITUC) has associated itself with the complaint and has supplied additional information dated 1 and 8 August and 1 and 4 November 2011. The Fiji Islands Council of Trade Unions (FICTU) has associated itself with the complaint and has provided additional information dated 23 September 2011.
3. 811. Since there has been no reply from the Government, the Committee has been obliged to postpone its examination of the case on two occasions. At its meeting in May–June 2011 [see 360th Report, para. 5], the Committee issued an urgent appeal to the Government indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it could present a report on the substance of the case at its next meeting even if the information or observations requested had not been received in due time. To date, the Government has not sent any information.
4. 812. Fiji has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 813. In its previous examination of the case in November 2010, the Committee made the following recommendations [see 358th Report, para. 558]:
   • (a) In light of the disruptions in the judicial system in Fiji and the apparent absence of any constitutional guarantees, the Committee requests the Government to take the necessary steps to ensure that Mr Koroi is immediately reinstated in his former position as a school principal without loss of pay or benefits and to keep it informed of developments.
   • (b) The Committee urges the Government to refrain from any further interference in the internal affairs of the FTA and to permit Mr Koroi, as its legitimate representative, to carry out his representation functions at the relevant forums, including the Education Forum, the Fiji Teachers’ Registration Board, the JCC and the CSB.
   • (c) The Committee invites the complainant organizations to provide any relevant additional information and urges the Government to reply fully and without delay to the allegations of acts of violence against trade union leaders and anti-union harassment.
   • (d) The Committee also requests the Government to respond in detail to the most recent allegations concerning restrictions on union meetings, on the freedom of movement of trade unionists and on union membership, restriction of the right to express opinions through the press and the abolition of representative bodies or of their tripartite composition.
   • (e) Given the seriousness of the complainants’ allegations and the absence of a complete picture of the situation on the ground, the Committee invites the Government to accept an advisory tripartite mission from the ILO to clarify the facts and assist the Government and the social partners in finding appropriate solutions in conformity with freedom of association principles.
   • (f) The Committee draws the Governing Body’s attention to the extreme seriousness and urgency of the issues involved in this case.

B. The complainants’ new allegations

• Allegations concerning act of anti-union discrimination against Mr Koroi
  814. 814 In its communications dated 18 February and 10 March 2011, the complainant organizations Education International (EI) and the Fijian Teachers; Association (FTA) indicate that the dismissal of the FTA President, Mr Tevita Koroi, from his position as school principal, is still in force. They welcome the Committee’s recommendations of November 2010, which call for the immediate reinstatement of Mr Koroi into his civil servant position in the Fiji public service. The recommendations have been communicated in December 2010 by the FTA to the Chairman and the Permanent Secretary of the Public Service Commission (PSC), as well as to the Permanent Secretary for Labour and Industrial Relations, and a formal follow-up has been sent in January 2011. The complainants state that the FTA representatives had an audience with the PSC Permanent Secretary on the matter and were verbally informed that the PSC would first be seeking a legal opinion on the recommendations from the office of the Solicitor General. In its communication of 10 March 2011, the complainants indicate that, by way of a letter of 22 February 2011, the Fiji PSC has rejected the FTA’s request for reinstatement of Mr Koroi stating that the present complaint does not have any bearing on his termination.
  815. 815 As regards the argument in the Government’s reply that Mr Koroi has not exhausted the appeals process of the PSC on his termination decision, effective from 30 April 2009, the complainants reiterate the chronology of events in Fiji at the time, in particular that the Fiji Constitution was abrogated on 10 April and that the PSC Appeals Board, together with the courts and all avenues of seeking redress, were made redundant so that the mediation process of the Labour Ministry was the only option available. In their view, to state that avenues for appeal have not been exhausted is not correct when the system does not have such mechanisms in place. The complainant organizations also contest “that government has had to deal with Mr Koroi on a number of occasions regarding his participation in political activities and public comments”, as he had not received any such formal or verbal communication from the PSC.
  816. 816 The complainants further highlight that Mr Koroi is the president of an association which has existed for over 70 years whose former presidents have all been civil servants exercising the same powers provided for under the same PSC Code of Conduct, Trade Union Act and relevant regulations, without one being disciplined. Mr Koroi’s predecessors, who had also represented the association at public forums, education and civil society meetings, as well as former presidents of other public sector unions, went on to become senior government officials, diplomats and ministers despite having taken active positions in the promotion of democracy.
  817. 817 According to the complainant organizations, Mr Koroi was among the leading, most senior, and most successful, school principals of the country at the time of his termination and had been a school principal for 20 years, during which he has proved himself as a school administrator who has turned schools around from deserted, dilapidated and low academic achievers to some vibrant and disciplined schools. At the time of his first appointment as school principal in 1988, he was the youngest principal at the time, and the youngest to be appointed as President of the FTA. Mr Koroi’s records in the secondary school education in Fiji speak volumes and had been attained within the same system that has now turned against him.
  818. 818 The complainants underline that whenever Mr Koroi participates at public forums outside his school, he does so in his position as president of his association and not as principal of his school. He does not take advantage of his FTA presidency against his principal’s roles, and keeps the line clear between these roles as he effectively follows proper procedures in attending to issues. According to the complainants, Mr Koroi is very much aware of the regulations guiding his role as a school principal, particularly within his school, and those that protect him as a trade union leader. With reference to the statement of the PSC Chairman, in his letter of 22 February 2011 that Mr Koroi “spoke against the Government” during the Movement for Democracy meeting on 5 December 2008, the complainants firmly deny this allegation and again emphasize that Mr Koroi was speaking in his capacity as the FTA President and not addressing students but rather a gathering of union leaders, civil society leaders, politicians and community leaders who wanted a quick return to democracy in Fiji; this was not done during school hours but during the school holidays, and not in the school premises but at the FTA headquarters. In their view, to state that Mr Koroi acted outside his jurisdiction as a union leader and civil servant is baseless as precedents have been set by his predecessors.
• Allegations concerning other serious infringements of trade union rights
  819. 819 The complainant organizations EI and the FTA, in their communication dated 18 February 2011, and the ITUC – the new complainant in the case – in its communications dated 1 and 8 August 2011, have submitted new allegations concerning: (i) assault, harassment, intimidation and arrest of trade unionists for their exercise of the right to freedom of association; (ii) trade union and civil rights of freedom of expression, access to media and freedom of assembly; and (iii) Government attack on trade union rights by executive decree.
• Assault, harassment, intimidation and arrest of trade unionists
  820. 820 The complainants denounce a series of acts of assault, harassment, intimidation and arrest of trade unionists for their exercise of the right to freedom of association. In chronological order, it is alleged that, on 10 February 2011, a prominent lawyer, Mr Anand Singh, was taken from his home at about 9 p.m. to the army barracks for questioning in connection with rumours of threats to the regime. There were at least two other citizens who were taken up that same night.
  821. 821 In particular, the complainants allege that, on repeated occasions, the Government has assaulted and harassed the highest-ranking trade union official in Fiji, Mr Felix Anthony, National Secretary of the Fiji Trade Union Congress (FTUC) and General Secretary of the Fiji Sugar Workers’ Union. They indicate that, on 12 February 2011, around 8 p.m., Mr Anthony was taken from his home by three uniformed military officers and driven to military barracks in Lautoka. While being transported, the officers threatened him and his family and repeatedly questioned him as to whether he knew of any attempts to overthrow the government and whether he supported the current regime. Mr Anthony denied any knowledge of any such attempts. He was dropped off at his home around 10 p.m. and was warned that worse things could happen to him next time. On 18 February 2011, Mr Anthony was told that the Prime Minister wanted to meet him at a sugar mill in Ba, which is on the western side of Fiji. He attended the meeting together with two other top officials of the unions. At the meeting, Mr Anthony was accused of being the cause of problems in the sugar mills and, during a walk around the mill with mill officials, was shown some of the problems, including the failed upgrade of the mill – an issue over which the union had no input. According to the complainants, they were then ordered to drive to Namaka, where they were called into the office to meet with military officials. After a short discussion, the soldiers began to beat Mr Anthony and the other trade union officials present. The physical and verbal assault continued for roughly two hours. The complainants state that they were then driven to Namaka Airport military barracks, an hour’s drive from Ba, where Mr Anthony and his colleagues were again physically assaulted by military personnel in civilian clothing. Mr Anthony sustained damage to his eardrum as a result of the beating. The other two union officials sustained physical injuries which also required medical attention. They were finally released around 9.30 p.m. with threats of further violence. On 2 March 2011, the ITUC General Secretary, having reported these incidents to the International Labour Organization (ILO) asking for immediate intervention, the Director-General wrote to the Government of Fiji shortly thereafter, registering his serious concern, asking the Government to investigate the incident, transmitting any information in that regard and noting that the Committee on Freedom of Association had recommended a tripartite mission to Fiji that the ILO fully supported. The complainants stress that no action has been taken in response to this letter and report that, on 1 April 2011, while Mr Anthony was having lunch with friends, the military officer responsible for his earlier beating approached him and warned him of further beatings in the presence of friends. The interim Government’s harassment of trade unionists continued when Mr Anthony sought to participate in the 100th International Labour Conference (ILC) in June 2011. The Government failed to deposit the credentials of Mr Anthony, who has been nominated by the FTUC, the most representative trade union body, to represent Fijian workers at the ILC. The Credentials Committee examined an objection filed by the ITUC on this matter and concluded that:
• ... by the Government’s own admission, it had purposefully ignored the nomination made by the organization that it had itself consulted for the purpose of the nomination of the delegation. As the Committee has stressed in the past, governments must accept the most representative organizations’ choice regarding the persons to be nominated as the Employers’ and the Workers’ delegates. Refusal to do so is a clear violation of their obligation under article 3, paragraph 5, of the ILO Constitution.
• The Credentials Committee concluded that the Government’s actions “raise[d] doubts as to the Government’s impartiality vis-à-vis the FTUC, considering the allegations that there is a deterioration of trade union rights in the country”. The complainants agree with the Credential Committee’s conclusion that the decision to deny credentials to Mr Anthony to attend the ILC was most likely in retaliation for his exercise of fundamental trade union rights in Fiji. In its most recent communication, the ITUC condemns the alleged arrest on 4 November 2011 of Mr Felix Anthony, the police search of both the union office and his home and his retention in custody without charges.
  822. 822 Furthermore, the complainant organizations allege that, immediately following the 100th ILC, military officers assaulted Mohammed Khalil, President of the Fiji Sugar and General Workers’ Union – Ba Branch. On 22 June 2011, at about 9 p.m., two army officers assaulted Mr Khalil and accused him of being a union strongman. He was made to wallow in the mud, was stomped on and dragged around in full view of his colleagues and other onlookers. The army officers denounced him and Mr Anthony (who was not present at the time) for their union advocacy and demanded during the beating that he submit his resignation from the union by 3 p.m. the next day before commencing his normal shift or he would face the same treatment. Mr Khalil did not resign. In the complainant’s view, not only the assault on Mr Khalil is a grave violation in its own right but, moreover, the beating was in retaliation for statements made by his colleague Mr Anthony at the ILC and thus constitutes yet another serious violation of freedom of association.
  823. 823 The complainants further denounce that, on 3 August 2011, Mr Daniel Urai, President of the FTUC and General Secretary of the National Union of Hospitality, Catering and Tourism Industries Employees (NUHCTIE), and Nitin Goundar, an organizer with NUHCTIE, were detained and questioned at the Nadi Police Station. They were charged with “unlawful assembly”, apparently for having met with and advised union members regarding pending collective negotiations with hotel management. They were released on bail on 4 August, with a hearing date set for 31 October 2011. The complainants also denounce that, on 29 October 2011, Mr Urai was arrested again, this time at the airport upon his return from the Commonwealth Heads of Government Meeting in Perth, Australia, where he spoke out against human and trade union rights violations perpetrated by the Fijian Government. Although he has not yet been charged with any offence, he remains in custody. The arrest of trade unionists for conducting trade union activity is a serious breach of the right to freedom of association.
• Freedom of assembly, freedom of expression and access to media
  824. 824 According to the complainants, the Public Emergency Regulations (PER) in force since April 2009 have continued to be renewed on a monthly basis giving unchecked powers to the Government to ban unauthorized gatherings, even though there has been no single incident of protest against the current regime. Article 3 grants the police the authority to prohibit any procession, meeting or assembly, and any such gathering may be dispersed by the police or the army, even where there was no prior formal prohibition issued. The police and the army have the discretion to use force if the procession, meeting or assembly has not been dispersed after giving due warning. Those participating in a prohibited gathering are guilty of an offence under the law. Also, articles 5–7 grant police sweeping authority to limit the free movement of persons and article 18 grants similar authority to arrest and detain them. The complainants state that, in practice, these regulations have greatly affected the regular work of trade unions in Fiji. Trade union activities such as seminars, workshops and meetings, if they happen at all, require a permit. Organizations continue to apply for meeting permits, which are granted with strict conditions, including military officers attending the meetings, listening to the deliberations, approving the meeting agenda and even selecting the persons who may speak or participate in such activities. According to the complainants, on 14 July 2011, the FTUC applied to hold a two-day workshop on reforms to the employment law. The Government denied the request explaining that “the FTUC had not supported the current Government”. On 15 July, the National Union of Factory and Garment Workers applied for a permit to hold a union meeting, which was denied citing the PER 2009. Sometimes permits are also issued late which occasionally does not allow unions to obtain the desired quorum. In its communication dated 23 September 2011, the FICTU indicates that, on 25 August, the permit for the FICTU affiliate, the Communication, Mining and General Workers Union, to organize a public meeting was refused. Similarly, permits for meetings of the national federation FICTU have also been refused on 16 July and 27 August 2011. On 12 July, the permit to organize a march and rally for FICTU affiliates, workers and pensioners was refused for security reasons. On 19 September 2011, the permit for the annual general meeting of the Transport Workers Union (TWU), a FICTU affiliate, was refused indicating that “all the meetings of union members are on hold until further directive ...”.
  825. 825 The complainants further allege that heavy media censorship continues to be experienced by the people of Fiji since the implementation of the Media Decree in 2010. Article 16 of the PER puts all media under the control of the Government by requiring any broadcaster or publisher to submit all materials that may be published or broadcast for prior review and authorization. Military personnel are present in all media outlets (TV, radio and newspaper) and screen all news. Comments by the general public, trade unions and civil society organizations are denied publication. While the Committee’s recommendations were sent to most media outlets of the country, the complainants deplore that they never found their way to any of the news columns, as trade union statements have been prohibited from being printed or aired. In their view, there is basically no freedom of expression or freedom of speech in the country.
• Government attack on trade union rights by executive decree
  826. 826 According to the complainants, the Government of Fiji has issued, since 2009, a series of decrees that severely curtails fundamental and other trade union rights and completely undermines the principles of freedom of association, especially for workers in the public service but also for workers in public entities and workers in several key unionized industries such as sugar and air transportation. In this context, they highlight, in a communication dated 18 February, that there has not been any salary adjustments for most civil servants since the end of 2006, except for members of the disciplinary forces (twice since 2007) and for nurses and the police (in 2010); it is the first time that the Fiji public service has not awarded cost of living adjustments across the board for all civil servants, thus favouring only certain sectors. Moreover, the complainants indicate that the adopted decrees simultaneously eliminate access to judicial review and redress for past, present and future violations of rights, and that these numerous changes, which are inimical to the rights and interests of workers, were made without any prior consultation with the relevant trade unions. The complainants describe the main features of the abovementioned decrees as follows:
       • (a) State Services Decree of 14 April 2009 (No. 6). Article 17 abolished the Public Services Appeal Board, which was established under the Public Service (Amendment) Act 1998, to review complaints by public service workers with regard to the failure to promote, disciplinary actions undertaken by the employer, or transfers between districts. The Decree even terminated all pending or partly heard appeals, so that public servants lost the right to any administrative review with regard to those matters (a Public Services Disciplinary Tribunal was later established, but only to review disciplinary actions). Article 17 also immediately lowered the mandatory retirement age from 60 to 55; as a result, over 2,000 public servants were forcibly retired and new recruitment and advancement is taking place on a contract basis with senior positions being filled by non-civilian personnel.
       • (b) Administration of Justice Decree of 16 April 2009, as amended up to February 2010 (No. 9). The Decree re-established the nation’s judicial system. However, under article 5, courts were divested of their jurisdiction to hear any challenges whatsoever to the Fiji Constitution Amendment Act 1997, the Revocation Decree 2009, and any other decrees made or to be made by the President after 10 April 2009. Article 23(3) terminated any pending challenges to the legality of any decrees or declarations made between 5 December 2006 and 9 April 2009 and most decisions made by any executive branch official during that time. The Decree specifically referenced any decision to terminate any employment on any grounds between 5 December, 2006 and 7 January, 2007. It affected several public sector unions which were unable to pursue justice arising out of work-related grievances. The Decree, as amended in May 2009, went one step further by terminating the review of any proceedings, claims, disputes or grievances that challenges or challenged any decision made by the Public Service Commission between 5 December 2006 and 9 April 2009 in relation to the terms and conditions of employment of public officers, including any changes to remuneration. The Decree, as amended in February 2010, went even further by divesting the courts of jurisdiction to hear any challenge by any person regarding any decision or order by the Government to restructure or reform the public service, alter or amend the terms and conditions of employment of any person in any public office or public service, or any changes to terms of services, including remuneration. Any pending claim with regard to those issues was immediately terminated. As of February 2010, the dispute settlement provisions of the Employment Relations Promulgation (ERP) of 2007 was the only forum for relief on individual cases (it would turn out to be short-lived). Moreover, the Decree was extended beyond the public service workers to include other public entities – and thus more unionized workers.
       • (c) Trade Disputes Decree of 2009 (No. 10).
       • (d) Employment Relations Amendment Decree of 16 May 2011 (No. 21). The Decree amended article 3 of the ERP 2007 to exclude all public service workers from its coverage. Roughly 15,000 workers in Fiji’s public service lost, overnight, their fundamental trade union rights as well as other rights. Today, public service workers, a majority of the workforce of Fiji, enjoy none of the rights set forth in Conventions Nos 87 and 98. Furthermore, the Decree prohibits public service workers and their unions from taking any action, proceeding, claim dispute, or grievance of any kind that arose or could arise under the ERP before any tribunal. The Decree also nullifies any order of any competent tribunal in any action brought under the ERP. The only protections not eliminated by the Decree are those arising under the Workmen’s Compensation and the Health and Safety at Work Acts.
       • (e) Proposed Critical Industries in Financial Distress Decree. Pursuant to article 23 et seq., employers that have applied for and have received a declaration of financial distress from an arbitrator may apply to unilaterally terminate existing collective bargaining agreements. To overcome concerns raised by a union, the employer only needs to show that the decision to terminate the agreement is “a reasonable exercise of the company’s business judgement”, that the collective agreement “in any way reduced the productivity of the company, or makes it uncompetitive, or is not an industry norm,” “the balance of convenience favours rejecting the agreement” or “reasonable efforts to negotiate a voluntary modification have been made and are not likely to produce a prompt and satisfactory solution” (article 26). Although article 27 does require the employer to make a proposal to the union regarding the modifications to the agreement it deems are necessary, to provide the union with information necessary to evaluate the proposal, and to make an effort to meet and confer with the union, the union has very little opportunity or leverage to bargain collectively to reach truly necessary, fair and equitable modifications. The draft Decree makes it all too easy for employers to dispense with existing collective bargaining agreements negotiated with their unions.
       • (f) Essential National Industries (Employment) Decree 2011. The application of this Decree, which was gazetted on 29 July 2011 and which, according to Legal Notice No. 81 dated 8 September 2011, has entered into force on 9 September 2011, will, in the complainant’s view, virtually destroy the independent trade union movement and as such the strongest voice amongst the civil society in Fiji, not only with regard to public service workers but also to many workers outside the public service. Below are some of the most objectionable provisions.
         • - Under article 6, all existing trade union registrations in designated industries are effectively cancelled; in order to operate, unions are required to re-register under the Act according to new and highly problematic procedures. The complainant condemns the cancellation of a union registration by the executive branch as a serious infringement of the principles of freedom of association. In order to reregister, the union is required to undergo new elections of leadership under procedures that fail to comport with principles of freedom of association. Thus, under article 7, all union leaders such as officer bearers, officers, representatives and executives must be employed by the designated corporations they represent. Those that run afoul of this provision face steep civil and penal sanctions – a fine of up to 50,000 Fiji dollars (FJD) or imprisonment of up to five years for individuals and up to FJD100,000 for the union.
         • - Under article 10, a union must first apply to the Prime Minister to seek to be elected or re-elected as representative of the bargaining unit and supply the required information. It remains unclear whether the Prime Minister has additional discretion to allow an applicant to seek to represent the bargaining unit – especially in light of article 12. The complainants are deeply concerned that in practice the Decree could amount to prior authorization by the Government. Upon receipt of an application, the Prime Minister has complete discretion, under article 11, to decide the composition and scope of the bargaining unit with no opportunity to appeal that decision.
         • - A “bargaining unit” is defined in article 2 as a group of at least 75 workers employed by the same employer, apparently precluding workers from having any representation in essential enterprises where there are less than 75 workers. Moreover, only one entity can represent the bargaining unit. The union will be registered as representative of the bargaining unit only if 50 per cent + 1 of all workers in the bargaining unit vote affirmatively in its favour, rather than 50 per cent + l of those voting – a standard which makes it more difficult to win an election – especially given the pressure that the Government will exercise on workers to reject the trade union as a representative.
         • - Even once a union is elected, the registrar may cancel the registration of the union and force a new election at any time if, upon receipt of a complaint from an employer, it finds there is sufficient evidence that the union no longer enjoys the requisite minimum support. In such case, the collective agreement is voided and the employer may impose the terms and conditions of employment. The union must stand every two years for re-election as representative of the workers (article 9), which will put substantial strain on the administration of the union. If the workers no longer want to be represented by that union, the decree already provides a procedure to call for new elections under article 16.
         • - Under article 8, all existing collective agreements are null and void 60 days after the Decree enters into force. New agreements are to be negotiated by the parties before the expiry of the 60 days under new highly restrictive procedures; however, if no agreement is in place in accordance with the new procedures, the company may unilaterally implement new terms and conditions through a new collective agreement or individual contracts. In the complainant’s view, this ensures that unions will be unable to bargain a fair contract, as it will encourage an employer to surface bargain for 60 days and then impose terms in the absence of a mutually accepted collective agreement.
         • - The new rules for collective negotiation (part 4) also raise several major concerns. Article 21(3) provides for a bargaining period that may last up to three years. If there is no agreement after three years, either party may seek the intervention of the Prime Minister under article 21(4), who may impose a final and binding agreement. That agreement shall be binding on the parties for two years. Under article 22, collective bargaining agreements do not expire. Instead, they are subject to amendment every five years in the absence of an agreement to the contrary. There appears to be no mechanism to amend an agreement by mutual consent outside the amendment period. Employers may, according to article 23, reopen the agreement if they are considered to be in financial distress. If bargaining fails to result in a new collective agreement in this case, the employer may request and the Prime Minister may impose new terms and conditions with reference only to the employer’s proposals and any additional information the Prime Minister may see fit to consult.
         • - The complainants also criticize the dispute settlement machinery established by the Decree. Under article 26, no dispute may be brought to the courts; collective bargaining agreements must include a dispute resolution procedure of discipline and discharge, and interpretation and application of the agreement; such disputes must be settled internally or by the employer’s designated reviewing officer; disputes involving an issue of over FJD5 million may be brought to the Prime Minister for binding determination. In no case, however, can any worker or union bring a claim to a judicial or quasi-judicial (neutral) person or body. According to the complainant, this all but ensures that there will be no access to industrial justice.
         • - Finally, the complainant denounces that the Decree poses serious restrictions on the right to strike. article 27(1) is categorical in stating that “no job actions, strikes, sickouts, slowdowns or other financially or operationally harmful activities shall be permitted at any time for any reason”. Notably, there is no such categorical prohibition on employers’ economic weapons, such as lockouts. The Decree goes further to state that such actions are “expressly prohibited” in connection with efforts to obtain registration, efforts to influence the outcome of bargaining or in the course of collective bargaining, and in disputes over the interpretation or application of a collective bargaining agreement. Despite article 27(1), article 27(2) provides that a union may strike if the parties failed to reach a new collective agreement after three years of bargaining – and even then only after a 28-day notice period and prior written approval from the Government. Moreover, the Prime Minister has to verify the results of the secret ballot to authorize the strike. The complainant highlights that, in the highly unlikely case of a strike, the employer may lock out the workers and unilaterally impose terms and conditions of employment. Also, the Prime Minister may at any time declare illegal any strike in an essential industry. A person that violates the law may be subject to a fine of FJD50,000 and five years in jail; the union may face a FJD250,000 sanction. The worker who remains on strike after a strike is declared illegal by the Prime Minister will face a fine of up to FJD100,000 or imprisonment of up to ten years; the union may face a fine of not more than FJD250,000.
         • - In addition, article 24(2) and (3) provides that no person in a designated company that operates full time shall be entitled to overtime pay for work performed on the weekends or on public holidays. In the airline industry, workers are simply not entitled to overtime pay under any circumstances, unless otherwise agreed by the employer and the union. article 24(4) prohibits automatic dues deduction unless the employer agrees to do so – which, according to the complainant, is unlikely to happen. Finally, article 30 provides that the validity of the Decree itself and decisions by government officials, or any corporation taken under it, are unreviewable before any tribunal. The Decree goes so far as to extinguish any pending claims under the ERP 2007. Thus, workers and unions in essential industries have absolutely no redress for any violation of what is left of their rights at work.
         • - The FTUC considers this Decree as an effort to decimate the unions in the sugar and airline industries.
       • (g) Elimination of dues deduction in the public sector. As of 4 August 2011, the Government prohibited automatic dues deduction for all public service workers by a decree amending the Civil Service Act. The obvious intent of the Decree is to attempt to financially weaken public sector unions, requiring them to collect dues from each member by hand.
  827. 827 In conclusion, the loss of these fundamental rights by decree, the inability to even challenge the validity of their loss, in addition to the extinction of all pending claims, is clearly contrary to the country’s obligations under international labour law and represents further evidence of deepening authoritarianism in Fiji. There is no question that this case is and continues to be serious and urgent. The ITUC and the EI urge the Committee to recommend that the Government of Fiji immediately stop all violence and threats of violence and arrests directed towards trade unionists and their families; ensure that Fiji’s workers and their trade unions can operate in a climate that is free from fear and intimidation; amend Fiji’s labour legislation so that it is in full compliance with ILO Conventions – particularly Nos 87 and 98; and rescind the PER 2009, to enable unions to carry out their legitimate role and activities, and the Media Decree to enable unions to be able to raise issues of concern through the media and its own publications. In light of the gravity and urgency of the situation, the complainants request the Committee to send a preliminary mission to the country. In its communication dated 23 September 2011, the FICTU makes a number of other serious allegations and requests in particular that the impact of the PER on trade union rights in Fiji be reviewed by the Committee.

C. The Committee’s conclusions

1. 828. The Committee regrets that, despite the time that has elapsed since the last examination of the complaint, it has not received the Government’s reply, although it has been invited on several occasions, including by means of an urgent appeal, to present its comments and observations on the case.
2. 829. Under these circumstances and in accordance with the applicable rules of procedure [see 127th Report, para. 17, approved by the Governing Body], the Committee finds itself obliged to present a report on the substance of the case without the benefit of the information which it had expected to receive from the Government in respect of all the pending matters.
3. 830. The Committee recalls that the purpose of the whole procedure established by the ILO for the examination of allegations of violations of freedom of association is to promote respect for this freedom in law and in fact. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments on their side will recognize the importance of formulating, for objective examination, detailed replies concerning allegations made against them.
   • Act of anti-union discrimination against Mr Koroi
4. 831. The Committee notes with regret from the communications dated 18 February and 10 March submitted by the complainant organizations EI and the FTA that the dismissal of the FTA President, Mr Tevita Koroi, from his position as school principal, is still in force and that, by way of a letter of 22 February 2011, the PSC has rejected the FTA request for reinstatement stating that the present complaint does not have any bearing on Mr Koroi’s termination. The Committee further notes that with reference to the Government’s reply, the complainants reiterate that they could not exhaust the avenues for appeal because the system did not have such mechanisms in place and that, prior to his dismissal Mr Koroi had not received any formal or verbal communication from the PSC regarding his participation in political activities and his public comments. According to the complainant organizations, Mr Koroi was among the leading, most senior and most successful school principals of the country at the time of his termination. The Committee also notes the complainant’s reaffirmation that Mr Koroi was speaking in his capacity as the President of the FTA and not as school principal, was addressing a public gathering of union leaders, civil society leaders, politicians and community leaders and not students; and that the speech was not delivered during school hours but rather during the school holidays, and not in the school premises but at the FTA headquarters.
5. 832. In the absence of the Government’s observations, the Committee finds itself obliged to reiterate the conclusions it made with regard to Mr Koroi when it examined this case at its meeting in November 2010 [see 358th Report, paras 547–554]:
   • The Committee notes that, in the present case, the complainants allege dismissal of a trade union leader in the public service education sector and ongoing anti-union harassment and interference with internal trade union affairs.
   • The Committee notes that, according to the complainants, the Government prejudiced Mr Tevita Koroi, President of the FTA, President of the Council of Pacific Education and member of the Executive of the FICTU, by suspending him from his position as school principal on 10 December 2008 and subsequently terminating his employment in the civil service on 30 April 2009, on account of the mandate he holds from the teachers’ association. The complainants indicate that the PSC charged Mr Koroi with three offences for allegedly breaching Fiji’s Public Service Code of Conduct, by holding a speech on 5 December 2008 for the launch of the Movement for Democracy in Fiji, during which he stated that “[the Movement] will organize and coordinate a campaign to return Fiji to a parliamentary rule as quickly as possible. The announcement of the initiative is timely to coincide with the second anniversary of the forceful takeover of the elected government by the Republic of Fiji Military Forces.” Given that the gathering did not take place at a school, with students in attendance or during school hours, but was held at the FTA headquarters in Suva and was attended by representatives of trade unions, civil society groups, political parties and members of the general public, the complainants believe that Mr Koroi was acting in his capacity as FTA president and consider it unfair to discipline him in his position as a school principal. According to the complainants, the Ministry of Education replied on 18 February 2009 to a letter of EI condemning his suspension that “Mr Koroi has been disciplined as a civil servant for speaking on matters beyond his jurisdiction as a civil servant and also as trade union leader of a Union that deals only with teachers and their work conditions.” The FTA also indicates that it has filed a dispute with the Ministry of Labour and Industrial Relations against the decision of termination as handed down by the PSC but has received no response so far. In the complainants’ view, as a result of the abrogation of the Constitution of Fiji on 10 April 2009, there are no other avenues for appeal through the court system in Fiji, as the Government’s Appeals Board, the High Court, the Appeals Court and the Supreme Court have been abolished. The FTA alleges further discriminative action taken by the Government in that, by letter of 11 August 2009, the Ministry of Education instructed that Mr Koroi would no longer be accepted as a representative of the FTA at various forums. With reference to the former Trade Union Act, the Employment Relations Promulgation of 2007, and the recently abrogated Fijian Constitution, the complainants conclude that the dismissal of Mr Koroi is in clear violation of Fijian legislation and international labour standards and that he was punished as a school principal for a role that he had performed as a trade union leader. They call for the immediate reinstatement of Mr Koroi into his civil servant and school principal positions with due compensation, and for the withdrawal of all charges against him by the appropriate authorities.
   • The Committee notes from the Government’s reply that Mr Koroi had already been charged with disciplinary offences, fined and reprimanded in 2002 under the Finance Act, and charged under the General Orders 309(b) and (c), found guilty and downgraded in 2008. The Government indicates that, regarding his participation in political activities and public comments against the Government, the Ministry of Education has tried on a number of occasions to reason Mr Koroi in that he needed to be mindful of his status as a civil servant, uphold the Public Service Code of Conduct and not be misled that he could do as he wished as the union president. The Ministry also advised the FTA to utilize full-time union officers who are not civil servants to speak in forums that involve political parties on topics that are political in nature. According to the Government, the advice was not considered by Mr Koroi as he continued to speak and participate in such forums that are completely outside the scope of his position and most importantly his status as a civil servant and an employee of the State. The Government considers that, due to his non-cooperation, there was no other option but to institute disciplinary action against him. Thus, the Ministry of Education, after verifying the facts through an internal investigation, suspended Mr Koroi by communication of 10 December 2008. After having given Mr Koroi the opportunity to object to his suspension at a hearing on 30 April 2009, the PSC found him guilty of all charges and decided to terminate his employment on the same day. The Government points out that, with due respect to the rights of Mr Koroi as a trade unionist, as a government employee he was expected to observe the requirements of the Public Service Act, 1999 and to refrain from vilifying his employer and violating the principles of good faith. The Government considers that the Public Service Act is a law of the land as stipulated in Article 8(1) of Convention No. 87, which is to be followed by all civil servants, irrespective as to whether they are union members, and that the present case is a matter between the employer and an employee who has breached his terms and conditions of employment. In the Government’s view, the PSC decision to terminate Mr Koroi’s service as a civil servant is based purely on his breach of sections 6 and 7 of the Public Service Act and General Orders 309(c), provisions broadly stating that civil servants are not allowed to speak in public or broadcast a matter which may be regarded as political or administrative in nature. The Government also indicates that, according to the records, Mr Koroi has not yet appealed against the PSC decision at the PSC Appeals Tribunal. Instead, the FTA filed on 6 May 2009 an employment dispute on the issue with the Ministry of Labour under the dispute reporting mechanism of the Employment Relations Promulgation, 2007, but withdrew it on 11 September 2009, in the light of the Employment Relations Tribunal decision No. 35 of 2008, stating that it cannot adjudicate on employment disputes over the dismissal of employees. The FTA subsequently advised the Ministry of Labour that it would raise the alleged unfair termination as an employment grievance to the Mediation Service under the Employment Relations Promulgation, 2007. However, according to the Ministry of Labour records, the FTA has not yet lodged such grievance. The Government concludes that the redress mechanism in Mr Koroi’s case has not been exhausted, and hopes that the FTA will not delay this case and seek for social justice as provided for under the Promulgation.
   • The Committee notes that the information provided by the complainant and by the Government coincides in that Mr Koroi was suspended from his position as school principal on 10 December 2008 and his employment in the civil service was subsequently terminated on 30 April 2009, due to a public statement made during a meeting in December 2008. The Committee notes, however, the conflicting versions of the two parties as to the nature and purpose of the statement and the justifiability of the dismissal. While the complainants believe that the speech at the FTA headquarters in Suva was held by Mr Koroi in his capacity as FTA President and constitutes a legitimate trade union activity, the Government considers that, by making a public statement of political nature directed against the Government, Mr Koroi has violated sections 6 and 7 of the Public Service Act and General Orders 309(c) thus breaching his terms and conditions of employment.
   • In previous cases of dismissal of trade union leaders, the Committee has repeatedly highlighted that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom. It has pointed out that one way of ensuring the protection of trade union officials is to provide that these officials may not be dismissed, either during their period of office or for a certain time thereafter except, of course, for serious misconduct [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 799 and 804].
   • The Committee considers that the issue at stake is whether or not Mr Koroi’s public statement can be considered as a legitimate trade union activity and wishes to recall that it has already reviewed on previous occasions the question of normal trade union activities as opposed to activities outside the trade union sphere. The Committee notes that sections 6 and 7 of the Public Service Act and General Orders 309(c) contain a blanket prohibition for civil servants to speak in public on matters of a political nature. In this regard, the Committee points out that, firstly, in its opinion, teachers do not carry out tasks specific to officials in the state administration; indeed, this type of activity is also carried out in the private sector. In these circumstances, it is important that teachers with civil servant status should enjoy the guarantees provided for under Convention No. 98 [see Digest, op. cit., para. 901]. Secondly, the Committee wishes to reaffirm that measures, although of a political nature and not intended to restrict trade union rights as such, may nevertheless be applied in such a manner as to affect the exercise of such rights, and that a general prohibition on trade unions from engaging in any political activities would not only be incompatible with the principles of freedom of association, but also unrealistic in practice. Trade union organizations may wish, for example, to express publicly their opinion regarding the Government’s economic and social policy. The freedom of expression which should be enjoyed by trade unions and their leaders should also be guaranteed when they wish to criticize the Government’s economic and social policy. For the contribution of trade unions and employers’ organizations to be properly useful and credible, they must be able to carry out their activities in a climate of freedom and security. This implies that, in so far as they may consider that they do not have the basic freedom to fulfil their mission directly, trade unions and employers’ organizations would be justified in demanding that theses freedoms and the right to exercise them be recognized and that these demands be considered as coming within the scope of legitimate trade union activities [see Digest, op. cit., paras 36, 157, 206 and 503]. More generally, the Committee wishes to emphasize the importance which it places on respect for the basic civil liberties of trade unionists and for employers’ organizations, including freedom of expression, as essential prerequisites to the full exercise of freedom of association, and considers that the statement made by Mr Koroi (which has not been contested by the Government) falls fully into the realm of speech that should be protected, particularly as it was a view expressed outside the employment relationship.
   • The Committee notes that the FTA has indicated that it has filed a dispute with the Ministry of Labour, considering that there are no other avenues for appeal through the national court system as a result of the abrogation of the Constitution of Fiji but that it has so far received no response from the Ministry. While the Government for its part reports that Mr Koroi has not yet appealed against the PSC decision at the PSC Appeals Tribunal and that the FTA has withdrawn the filed employment dispute and still not lodged an employment grievance to the Mediation Service under the Employment Relations Promulgation, 2007, the Committee recalls that the Government is responsible for preventing all acts of anti-union discrimination and it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned [see Digest, op. cit., para. 817]. Thus, in light of the abovementioned principles, the disruptions in the judicial system in Fiji and the apparent absence of any constitutional guarantees, the Committee requests the Government to take the necessary steps to ensure that Mr Koroi is immediately reinstated in his former position as a school principal without loss of pay or benefits and to keep it informed of developments.
   • As regards the allegation that the Ministry of Education instructed on 11 August 2009 that Mr Koroi would no longer be accepted as a representative of the FTA at various forums, the Committee draws the Government’s attention to the fact that, given that workers’ organizations are entitled to elect their representatives in full freedom, the dismissal of a trade union leader, or simply the fact that a trade union leader leaves the work that he or she was carrying out in a given undertaking, should not affect his or her trade union status or functions unless stipulated otherwise by the constitution of the trade union in question [see Digest, op. cit., para. 411]. Noting that the FTA continues to consider Mr Koroi to be the president of the union, the Committee urges the Government to refrain from any interference in this regard and to permit Mr Koroi, as the legitimate representative of the FTA, to carry out his representation functions at the relevant forums, including the Education Forum, the Fiji Teachers’ Registration Board, the JCC and the CSB.
   • Assault, harassment, intimidation and arrest of trade unionists
6. 833. The Committee notes the complainant’s new allegations concerning the following acts in chronological order: (i) on 10 February 2011, a prominent lawyer, Mr Anand Singh, was taken from his home at about 9 p.m. to the army barracks for questioning in connection with rumours of threats to the regime; (ii) on 12 February 2011, around 8 p.m., Mr Felix Anthony, National Secretary of the FTUC and General Secretary of the Fiji Sugar Workers, was taken from his home by three uniformed military officers who threatened him and his family, repeatedly questioned him about purported attempts to overthrow the Government; subsequently, he was dropped off at his home around 10 p.m. and was warned that worse things could happen to him; (iii) on 18 February 2011, Mr Anthony was convened to a meeting at a sugar mill in Ba that he attended together with two other top officials of the unions and at which he was accused of being the cause of problems in the sugar mills; they were then ordered to drive to Namaka to meet with military officials who after a short discussion began to beat Mr Anthony and the other trade union officials present and physically and verbally assaulted them for roughly two hours; they were then driven to Namaka Airport military barracks, where Mr Anthony and his colleagues were again physically assaulted by military personnel in civilian clothing, sustaining physical injuries (including damaged eardrum) which required medical attention; they were finally released with threats of further violence; (iv) on 1 April 2011, the military officer responsible for his earlier beating approached Mr Anthony and warned him of further beatings in the presence of friends; (v) when Mr Anthony sought to participate in the 100th ILC in June 2011, the Government refused to deposit his credentials, although he had been nominated by the FTUC, the most representative trade union body in Fiji; (vi) following the ILC, on 22 June 2011, at about 9 p.m., two military officers assaulted Mr Mohammed Khalil, President of the Fiji Sugar and General Workers Union – Ba Branch, denounced him and Mr Anthony (who was not present at the time) for their union advocacy and demanded during the beating that he submit his resignation from the union by 3 p.m. the next day before commencing his normal shift or he would face the same treatment; Mr Khalil did not resign; in the complainant’s view, the beating of Mr Khalil was in retaliation for statements made by his colleague Mr Anthony at the ILC; (vii) on 3 August 2011, Mr Daniel Urai, President of the FTUC and General Secretary of the NUHCTIE, and Nitin Goundar, an organizer with NUHCTIE, were detained and questioned at the Nadi Police Station, were charged with “unlawful assembly” apparently for having met with and advised union members and were released on bail on 4 August, with a hearing date set for 31 October 2011; (viii) on 29 October 2011, Mr Urai was arrested again upon his return from the Commonwealth Heads of Government Meeting in Perth, Australia, where he spoke out against the human and trade union rights violations in Fiji, and remains in custody, although he has not yet been charged with any offence; and (ix) on 4 November 2011, Mr Felix Anthony has been arrested, his home and union office have allegedly been searched by police and he remains in detention apparently without charges. In addition, the Committee bears in mind that, according to the 2009 allegations of the complainant organizations, Mr Attar Singh, General Secretary of the FICTU, had been taken to the military camp and tortured, that his home and car had been vandalized, that his office had on two occasions been the target of fire bombs, and that other trade union leaders such as Mr Taniela Tabu, General Secretary of the Viti National Union of Taukei Workers, had also experienced similar types of treatment.
7. 834. In light of the above, the Committee expresses its deep concern at the numerous alleged acts of assault, harassment and intimidation of trade union leaders and members for their exercise of the right to freedom of association, in particular the recent recurring acts of physical assault and harassment against the FTUC National Secretary, which have triggered an informal intervention of the Director-General. The Committee deeply regrets that the Government has not replied to these allegations and wishes to recall that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected. As regards allegations of the physical ill-treatment of trade unionists, the Committee has recalled that governments should give precise instructions and apply effective sanctions where cases of ill-treatment are found. The absence of judgments against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights. In the event of assaults on the physical or moral integrity of individuals, the Committee has always considered that an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 44, 50, 52 and 55]. The Committee therefore urges the Government to conduct an independent investigation without delay into the incidents alleged above transmitting detailed information with regard to its findings and the action taken as a result. Considering that acts of intimidation and physical violence against trade unionists constitute a grave violation of the principles of freedom of association and that the failure to protect against such acts amounts to a de facto impunity, which can only reinforce a climate of fear and uncertainty highly detrimental to the exercise of trade union rights, the Committee urges the Government to take all necessary measures without delay to ensure the full respect of the above principles in the future.
8. 835. With particular regard to the allegation that an act of assault against a trade union leader was perpetrated in retaliation for statements made by his colleague, Mr Anthony, at the ILC, the Committee considers that the functioning of the Conference would risk being considerably hampered and the freedom of speech of the Workers’ and Employers’ delegates paralysed if the relevant delegates or their associates were victims of assault or arrest due to the expression of views at the Conference. It urges the Government to take full account of this principle in the future and to ensure that no trade unionist suffers retaliation for the exercise of freedom of expression.
9. 836. Furthermore, the Committee is equally alarmed by the arrest on 4 November 2011 and retention in custody without charges of the FTUC National Secretary; by the arrest of the FTUC President on 29 October 2011 and his retention in custody without charges; and by the earlier arrest and overnight detention on 3 August 2011 of the FTUC President and NUHCTIE General Secretary and a NUHCTIE member and the criminal charges with unlawful assembly brought against them on the grounds of failure to observe the terms of the Public Emergency Regulations. First and foremost, it wishes to recall that the detention of trade unionists for reasons connected with their activities in defence of the interests of workers constitutes a serious interference with civil liberties in general and with trade union rights in particular, and that the arrest, even if only briefly, of trade union leaders and trade unionists, and of the leaders of employers’ organizations, for exercising legitimate activities in relation with their right of association constitutes a violation of the principles of freedom of association. The Committee further emphasizes that the arrest and detention of trade unionists without any charges being laid or court warrants being issued constitutes a serious violation of trade union rights [see Digest, op. cit., paras 62, 64 and 69]. With reference to its conclusions concerning the Public Emergency Regulations as enounced below, the Committee further considers that, while persons engaged in trade union activities or holding trade union office cannot claim immunity in respect of the ordinary criminal law, the arrest of, and criminal charges brought against, trade unionists may only be based on legal requirements that in themselves do not infringe the principles of freedom of association. The Committee urges the Government to take full account of these principles in the future. With respect to the abovementioned trade unionists in particular, it urges the Government to take the necessary measures to ensure that the FTUC National Secretary and the FTUC President are immediately released from custody and that all charges against them and the NUHCTIE members are immediately dropped, and to keep it informed of any developments in this regard without delay, including the outcome of the hearing on 31 October 2011.
10. 837. With regard to the alleged search of the union office and of Mr Anthony’s home by the police, the Committee recalls that any search of trade union premises, or of unionists’ homes, without a court order constitutes an extremely serious infringement of freedom of association [see Digest, op. cit., para. 182] and requests the Government to provide its observations on this allegation.
    • Lack of freedom of assembly, freedom of expression and access to media
11. 838. The Committee notes from the complainant’s allegations and available information that: (i) as a result of the monthly renewed Public Emergency Regulations in force since April 2009, trade union activities such as seminars, workshops and meetings, require a permit, which is either refused (for example, on 14 July 2011, refusal of a permit for the FTUC workshop on reforms to the employment law; on 15 July, refusal of a permit for the meeting of the National Union of Factory and Garment Workers; on 13 August, revocation of a permit for a meeting of the FTUC National Council; on 16 July and 27 August, refusal of a permit for FICTU meetings; on 19 September, refusal of a permit for the annual general meeting of the TWU; etc.), or issued late (which occasionally precludes the desired quorum) or granted with strict conditions (including military officers attending the meetings, listening to the deliberations, approving the meeting agenda and even selecting the persons who may speak or attend); and (ii) as a result of the Media Decree and the Public Emergency Regulations, heavy media censorship continues to be experienced in Fiji, and trade union statements have been prohibited from being printed or aired, which is the reason why the Committee’s recommendations, which were sent by the complainants to most media outlets of the country, have been denied publication.
12. 839. In this regard, the Committee, expressing particular concern at the official statement dated 19 September 2011 when refusing a permit for the TWU that “all the meetings of union members are on hold until further directive ...”, recalls that the Committee of Experts on the Application of Conventions and Recommendations has emphasized that the freedom of association Conventions do not contain any provision permitting derogation from the obligations arising under the Convention, or any suspension of their application, based on a plea that an emergency exists. In cases of repeated renewals of the state of emergency, the Committee has pointed out that the resolution concerning trade union rights and their relation to civil liberties, adopted by the ILC in 1970, states that “the rights conferred upon workers’ and employers’ organizations must be based on respect for ... civil liberties ... and that the absence of these civil liberties removes all meaning from the concept of trade union rights”. It also wishes to generally reiterate that the ILC has pointed out that the right of assembly, freedom of opinion and expression and, in particular, freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers, constitute civil liberties which are essential for the normal exercise of trade union rights (resolution concerning trade union rights and their relation to civil liberties, adopted at the 54th Session, 1970) [see Digest, op. cit., paras 38, 193 and 194]. As regards freedom of assembly in particular, the Committee recalls that permission to hold public meetings and demonstrations, which is an important trade union right, should not be arbitrarily refused. Moreover, the Committee has cautioned that, where a representative of the public authorities can attend trade union meetings, this may influence the deliberations and the decisions taken (especially if this representative is entitled to participate in the proceedings) and hence may constitute an act of interference incompatible with the principle of freedom to hold trade union meetings. With respect to freedom of opinion and expression, the Committee recalls that the right to express opinions through the press or otherwise is an essential aspect of trade union rights [see Digest, op. cit., paras 132, 142 and 155]. Stressing that freedom of assembly and freedom of opinion and expression are a sine qua non for the exercise of freedom of association, the Committee therefore urges the Government to take full account of the principles enounced above in the future and refrain from unduly impeding the lawful exercise of trade union rights. It further requests the Government to provide detailed information without delay in reply to the FICTU communication dated 23 September 2011, and in particular as regards the impact of the PER on freedom of association and the alleged general ban on trade union meetings.
    • Infringement of trade union rights by executive decree
13. 840. The Committee notes that, according to the complainants, the Government has issued, since 2009, a series of decrees that severely curtail fundamental and other trade union rights and completely undermines the principles of freedom of association, especially targeting workers in the public service (for example, Employment Relations Amendment Decree No. 21 of 16 May 2011 which excludes 15,000 public service workers from the coverage of the ERP 2007) and also workers in public entities. The Committee has repeatedly held that the standards contained in Convention No. 87 apply to all workers “without distinction whatsoever”, and are therefore applicable to employees of the state; it was indeed considered inequitable to draw any distinction in trade union matters between workers in the private sector and public servants, since workers in both categories should have the right to organize for the defence of their interests [see Digest, op. cit., para. 218]. The Committee therefore urges the Government to take all necessary measures to ensure that public servants enjoy the guarantees enshrined in Convention No. 87.
14. 841. The Committee notes the complainants’ indication that several decrees (for example, State Services Decree No. 6 of 14 April 2009, Administration of Justice Decree of 16 April 2009 as amended, Employment Relations Amendment Decree No. 21 of 16 May 2011, and the Essential National Industries (Employment) Decree No. 35 of 29 July 2011) collectively eliminate the access to the judicial or administrative review of the legality of the decrees themselves or of any executive decision (including decisions of the PSC) concerning the public service (including with regard to the terms and conditions of employment of public servants) or other selected sectors; and terminate pending or ongoing judicial or administrative procedures in this regard. The Committee further notes with regret from the allegations that all changes were decided without any prior consultation with the relevant trade unions. In this regard, the Committee emphasizes the importance that should be attached to full and frank consultation taking place on any questions or proposed legislation affecting trade union rights and recalls that due process would not appear to be ensured if, under the national law, the effect of a state of emergency is that a court cannot examine, and does not examine, the merits of the case [see Digest, op. cit., paras 85 and 1074]. The Committee urges the Government to take all necessary measures to ensure that prior consultations are undertaken with the relevant workers’ organizations on proposed legislation affecting trade union rights, and considering that due process should normally include the existence of a right to appeal to the courts as regards administrative decisions, to amend the relevant legislation without delay so as to guarantee access to courts.
15. 842. The Committee further notes the special emphasis put by the complainant on the Essential National Industries (Employment) Decree, which has entered into force on 9 September 2011, the implementation of which, in the complainant’s view, will virtually destroy the independent trade union movement and, as such, the strongest voice amongst the civil society in Fiji, as it seeks to decimate the unions in the sugar and airline industries. In general, the Committee considers that this Decree gives rise to a number of violations of Conventions Nos 87 and 98 and the principles on freedom of association and collective bargaining. In particular, the Committee wishes to draw the Government’s attention to its considerations regarding the following shortcomings:
    • (i) Under section 6, all existing trade union registrations in essential national industries are effectively cancelled; in order to operate, unions are required to re-register under the Act. The Committee has on many prior occasions underlined that legislation which accords the minister the complete discretionary power to order the cancellation of the registration of a trade union, without any right of appeal to the courts, is contrary to the principles of freedom of association [see Digest, op. cit., para. 689].
    • (ii) Section 7 provides that union officials must, subject to severe civil and penal sanctions, be employees of the designated corporations they represent. Noting that a required step to re-register the union is the election of new union officials, the Committee wishes to recall that the requirement of membership of an occupation or establishment as a condition of eligibility for union office is not consistent with the right of workers to elect their representatives in full freedom [see Digest, op. cit., para. 407].
    • (iii) According to sections 10–12, a union must apply to the Prime Minister in writing to be elected or re-elected as representative of the bargaining unit, the Prime Minister shall determine the composition and scope of a bargaining unit for the purposes of conducting elections for its representative, and the registrar shall conduct and supervise elections in the bargaining unit. Noting the concerns expressed by the complainant at the extent of discretion of the Prime Minister when allowing an applicant to seek to represent the bargaining unit, the Committee reiterates that a law providing that the right of association is subject to authorization granted by a government department purely in its discretion is incompatible with the principle of freedom of association. Moreover, the right of workers’ organizations to elect their own representatives freely is an indispensable condition for them to be able to act in full freedom and to promote effectively the interests of their members. For this right to be fully acknowledged, it is essential that the public authorities refrain from any intervention which might impair the exercise of this right, whether it be in determining the conditions of eligibility of leaders or in the conduct of the elections themselves [see Digest, op. cit., paras 273 and 391].
    • (iv) Part 3 in conjunction with section 2 seek to establish the role of representatives –union or not – as collective bargaining agents. The Committee understands that the term “representative” may include a union delegate or an elected workers’ representative. In this regard, it considers that, as guaranteed by the Workers’ Representatives Convention, 1971 (No. 135), and the Collective Bargaining Convention, 1981 (No. 154), where there exist, in the same undertaking, both trade union representatives and elected representatives, appropriate measures are to be taken to ensure that the existence of elected representatives is not used to undermine the position of the trade unions concerned. Direct negotiation between the undertaking and its employees, bypassing representative organizations where these exist, is detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted [see Digest, op. cit., paras 945 and 946]. The Committee urges the Government to take the necessary measures without delay to ensure that the application of the legislation will be in full conformity with the above principles.
    • (v) Under sections 12 and 14, there is a single representative elected to represent workers in the bargaining unit, and a union will be registered as representative of the bargaining unit only if 50 per cent + 1 of all workers in the bargaining unit affirmatively vote in its favour. Taking into account that the wording of section 14, especially subsection 4, seems to indicate that the figure 50 per cent + 1 appears not only to be the percentage necessary for a union to be the exclusive bargaining agent, but also for a union to be registered, the Committee recalls that the right of workers to establish organizations of their own choosing implies, in particular, the effective possibility to create – if the workers so choose – more than one workers’ organization per enterprise. While a minimum membership requirement is not in itself incompatible with Convention No. 87, the number should be fixed in a reasonable manner so that the establishment of organizations is not hindered; what constitutes a reasonable number may vary according to the particular conditions in which a restriction is imposed. In any event, a minimum membership requirement of 30 per cent of the workers concerned to establish an organization is too high. Thus, a provision imposing a minimum membership of 50 per cent would not be in line with Convention No. 87 [see Digest, op. cit., paras 287, 288 and 315].
    • (vi) According to section 8, all existing collective agreements are null and void 60 days after the decree enters into force, and new agreements are to be negotiated by the parties before the expiry of the 60 days; otherwise, the company may unilaterally implement new terms and conditions through a new collective agreement or individual contracts. The Committee wishes to emphasize that a legal provision which allows the employer to modify unilaterally the content of signed collective agreements, or to require that they be renegotiated, is contrary to the principles of collective bargaining. In examining allegations of the annulment and forced renegotiation of collective agreements for reasons of economic crisis, the Committee was of the view that legislation which required the renegotiation of agreements in force was contrary to the principles of free and voluntary collective bargaining enshrined in Convention No. 98 and insisted that the Government should have endeavoured to ensure that the renegotiation of collective agreements in force resulted from an agreement reached between the parties concerned [see Digest, op. cit., paras 942 and 1021]. In addition, no clear and imperative reasons have apparently been provided concerning any need for economic stabilization in a specific context. The legislation has effect on whole sectors without any reference to specific provisions that cannot be implemented in the framework of an acute national crisis, but rather provides for wholesale intervention in all collective agreements. The Committee thus considers that the abrogation of collective agreements, as well as the unilateral imposition of conditions of employment failing to come to an agreement is contrary to Article 4 of Convention No. 98 concerning the encouragement and promotion of collective bargaining.
    • (vii) Pursuant to section 27, and subject to severe civil and penal sanctions, strikes in essential national industries in connection with efforts to obtain registration, efforts to influence the outcome of bargaining or in the course of negotiations, and disputes over the interpretation or application of a collective agreement are expressly prohibited. The bargaining unit may only go on strike if the parties failed to reach a collective agreement after three years of bargaining, subject to a 28-day notice period and prior written approval from the Government. The Prime Minister may, by order, declare any strike or lockout in any essential national industry unlawful. According to the Essential National Industries and Designated Corporations Regulations 2011, the above restrictions on the right to strike apply to the following sectors currently considered as “essential national industries”: financial industry (including customs); telecommunications industry; civil aviation industry; and public utilities industry (including electricity and water). The term “essential national industries” is defined in section 2 of the Decree as industries which are: (i) vital to the present and continued success of the Fiji national economy, or gross domestic product, or those in which the Government has a majority and essential interest; and (ii) declared as essential national industry by the ministry under regulations made pursuant to this Decree. In this regard, the Committee wishes first to highlight that the right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests. The Committee recalls that the right to strike may only be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the state; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population). Accordingly, electricity services, water supply services and the telephone service may be considered to be essential services where the right to strike could be restricted or prohibited, and the prohibition of the right to strike of customs officers, who are public servants exercising authority in the name of the state, is not contrary to the principles of freedom of association. However, radio and television, banking and civil aviation more generally do not constitute essential services in the strict sense of the term. By linking restrictions on strike action to interference with trade and commerce, a broad range of legitimate strike action could be impeded. While the economic impact of industrial action and its effect on trade and commerce may be regrettable, such consequences in and of themselves do not render a service “essential”, and thus the right to strike should be maintained [see Digest, op. cit., paras 522, 576, 579, 585, 587 and 592]. The Committee further wishes to emphasize that responsibility for declaring a strike illegal should not lie with the government, but with an independent body which has the confidence of the parties involved. Moreover, penal sanctions should only be imposed as regards strikes where there are violations of strike prohibitions which are themselves in conformity with the principles of freedom of association. All penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed and the authorities should not have recourse to measures of imprisonment for the mere fact of organizing or participating in a peaceful strike [see Digest, op. cit., paras 628 and 668].
      • (viii) Under section 26, disputes over discipline and discharge, and the interpretation or application of a collective agreement must be settled internally or by the employer’s designated reviewing officer without recourse to a judicial or quasi-judicial body; disputes involving an issue of over FJD5 million (US$2.78 million) which remained unresolved may be referred to the Prime Minister for a final and binding determination. The Committee considers that all disputes relating to a question of right (for example, the termination of a worker), regardless of the amount of money involved, should be fully appealable to the courts; in the first instance, they could be arbitrated.
    • 843. In view of the numerous issues raised above, the Committee deeply regrets the issuance on 8 September 2011 of the implementing regulations under section 31 of the Essential National Industries (Employment) Decree 2011, and urges the Government to amend its provisions without delay, in full consultation with the social partners, so as to bring it into conformity with Conventions Nos 87 and 98, ratified by Fiji. The Committee requests the Government to keep it informed of the steps taken in this regard.
16. 844. Finally, the Committee notes from the allegations that, as of 4 August 2011, the Government prohibited automatic dues deduction for all public service workers by a decree amending the Civil Service Act, which, in the complainants’ view, aims at financially weakening public sector unions, requiring them to collect dues from each member by hand. The Committee further notes that, similarly, section 24(4) of the Essential National Industries (Employment) Decree 2011, prohibits automatic dues deductions unless the employer agrees to do so – which, according to the complainant, is unlikely to happen. The Committee recalls that the withdrawal of the check-off facility, which could lead to financial difficulties for trade union organizations, is not conducive to the development of harmonious industrial relations and should therefore be avoided. It requests the Government to take the necessary measures to ensure that the check-off facility continues to be granted in the relevant sectors.
17. 845. Given the seriousness of the complainants’ allegations and the absence of a complete picture of the situation on the ground, the Committee urges the Government to accept a direct contacts mission to the country in order to clarify the facts and assist the Government in finding, together with the social partners, appropriate solutions in conformity with freedom of association principles.
18. 846. The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations. The Committee also draws the special attention of the Governing Body to this case because of the extreme seriousness and urgency of the matters dealt with therein.