Observation (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Fidji (Ratification: 2002)

Autre commentaire sur C087

Observation

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The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government and the social partners this year, as well as on the basis of the information at its disposal in 2019.

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2019 and 15 September 2020 and of the Fiji Trades Union Congress (FTUC) received on 23 May and 13 November 2019, denouncing violations of civil liberties and lack of progress on the legislative reform. The Committee notes the Government’s general reply thereto, as well as to the 2017 and 2018 FTUC observations, and requests it to provide further details on the specific incidents of alleged violations of civil liberties reported by the FTUC.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 108th Session, June 2019)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards (hereafter the Conference Committee) in June 2019 concerning the application of the Convention. It notes that the Conference Committee observed serious allegations concerning the violation of basic civil liberties, including arrests, detentions and assaults, and restrictions of freedom of association and noted with regret the Government’s failure to complete the process under the Joint Implementation Report (JIR). The Conference Committee called upon the Government to: (i) refrain from interfering in the designation of the representatives of the social partners on tripartite bodies; (ii) reconvene the Employment Relations Advisory Board (ERAB) without delay in order to start a legislative reform process; (iii) complete without further delay the full legislative reform process as agreed under the JIR; (iv) refrain from anti-union practices, including arrests, detentions, violence, intimidation, harassment and interference; (v) ensure that workers’ and employers’ organizations are able to exercise their rights to freedom of association, freedom of assembly and speech without undue interference by the public authorities; and (vi) ensure that normal judicial procedures and due process are guaranteed to workers’ and employers’ organizations and their members. The Conference Committee also requested the Government to report on progress made towards the implementation of the JIR in consultation with the social partners by November 2019 and called on the Government to accept a direct contacts mission to assess progress made before the 109th Session of the International Labour Conference. While duly noting the context of the current COVID-19 pandemic, the Committee trusts that the direct contacts mission requested by the Conference Committee will be able to take place as soon as the situation so permits and, if possible, before the next International Labour Conference.

Trade union rights and civil liberties. In its previous comments, the Committee requested the Government to respond in full detail to the FTUC allegations of continued harassment and intimidation of trade unionists, in particular with respect to its National Secretary, Felix Anthony. The Committee notes the Government’s general statement that Mr Anthony has been able to organize and carry out trade union activities without any interference from the Government and that the arrest, search and detention of persons previously alleged by the ITUC and the FTUC were not intended to harass or intimidate trade unionists but to allow the Commissioner of Police to conduct investigations into alleged violations of applicable laws. The Government also affirms that the Commissioner of Police and the Office of the Director of Public Prosecutions are both independent and neither the entities nor their decisions are subject to the direction or control of the Government. The Committee notes, however, the 2020 ITUC allegations that Mr Anthony is currently charged with one count of malicious acts under the Public Order Act, 1969 in relation to his trade union activities following the mass termination of 2,000 workers’ contracts by the Fiji Water Authority in April 2019, which led to protests and the arrest of trade unionists and union members, including Mr Anthony. The ITUC alleges that Mr Anthony was to appear before the court on 1 September 2020 and if convicted, he could receive a fine of up to US$2,500 or be imprisoned for up to three years. The Committee notes the Government’s reply that the arrest and subsequent criminal prosecution of Mr Anthony are not a targeted attack but a matter that is criminal in nature and that the presiding court will make a determination on the criminal charges and penalties imposed, if any. The Committee further notes with concern the ITUC and FTUC allegations of continued intimidation by the police, arrests, detention, interrogation and the filing of criminal charges against trade unionists, as well as prolonged confiscation of personal and union property and violent dispersal of gatherings between April and June 2019. Recalling the interdependence between civil liberties and trade union rights and emphasizing that a truly free and independent trade union movement can only develop in a climate free from violence, pressure and threats of any kind against the leaders and members of such organizations, the Committee requests the Government to make serious efforts to ensure that state entities and their officials refrain from anti-union practices, including arrests, detentions, violence, intimidation, harassment and interference in trade union activities, so as to contribute to an environment conducive to the full development of trade union rights. The Committee requests the Government to consider issuing instructions to the police and the armed forces in this regard and to provide training to ensure that any actions taken during demonstrations respect the basic civil liberties and fundamental labour rights of workers and employers. Furthermore, the Committee firmly expects that any charges against Mr Anthony related to the exercise of his trade union activities will be immediately dropped.

Appointment of members to and the functioning of the Employment Relations Advisory Board to review labour legislation. In its previous comments, having observed the FTUC concerns that the Government had systematically dismantled tripartism by removing or replacing the tripartite representation on a number of bodies with its own nominees, the Committee requested the Government to provide detailed information on the manner in which it designated individuals to these bodies and the representative nature of the organizations that appeared therein. The Committee notes the detailed reply provided by the Government on the appointment of members to the ERAB, the Fiji National Provident Fund, the Fiji National University, the Wages Council and the Air Terminal Service (Fiji) Limited. The Committee also notes the Government’s clarification that, in addition to the ERAB, the National Occupational Health and Safety Advisory Board (NOHSAB) and the National Employment Centre Board (NECB) also have tripartite membership. The Government further indicates, with regard to the ERAB, that: (i) the Minister for Employment is the appointing authority and representatives of workers and employers are appointed from persons nominated by workers’ and employers’ organizations; (ii) appointment of members is undertaken through a consultation process to allow expanded representation of workers from various organizations; (iii) there is no interference from the Government in the designation of representatives of the social partners; and (iv) as the current ERAB membership ended in October 2019, the social partners were invited to submit nominees and both the Fiji Commerce and Employers Federation (FCEF) and the FTUC have already done so at the end of October 2019. The Committee observes, however, that, according to the FTUC, there is no indication as to when the appointment of ERAB members will take place, despite the urgency of the situation, and that the ITUC remains concerned about government manipulation of national tripartite bodies, thus curtailing the possibility of genuine tripartite dialogue. The Committee trusts that the Government will refrain from any undue interference in the nomination and appointment of members to the ERAB and to other tripartite bodies, and will ensure that the social partners can freely designate their representatives. The Committee expects the appointment of ERAB members to take place without delay so as to allow this mechanism to reconvene and meet regularly in order to pursue the labour law review and meaningfully address all outstanding matters in this regard.

Progress on the review of labour legislation as agreed in the Joint Implementation Report. The Committee previously noted with regret the apparent lack of progress on the review of the labour legislation as agreed in the JIR and urged the Government to take the necessary measures with a view to rapidly bringing the legislation into line with the Convention. The Committee notes the Government’s indication that several meetings took place with the tripartite partners and the ILO between June 2018 and August 2019, in which it was agreed that a number of matters under the JIR have already been implemented and that the tripartite partners are making good progress on the outstanding matters concerning the review of labour laws and the list of essential services and industries, despite the FTUC’s boycott and withdrawal from the tripartite dialogue within the ERAB in June 2018, February and August 2019. The Committee notes that, according to the FTUC, the Government’s reference to boycott clearly reveals that there remain issues in the appointment process of ERAB members and shows the Government’s lack of genuine commitment to previously agreed timelines that had led to the boycott. The Committee notes from the resolutions adopted at the 48th biennial delegates conference of the FTUC provided by the Government in its supplementary report that: (i) the FTUC maintains its position on boycotting participation in any tripartite forums until its role as an important stakeholder with sincere engagement is recognized; and (ii) the FTUC expresses concern about the Government’s failure to uphold its commitment to engage in genuine social dialogue and to take any positive action to review the labour legislation, and denounces the way in which the Ministry of Employment, Productivity and Industrial Relations has handled the review process. The Committee further observes that the ITUC calls on the Government to return to the negotiating table with the social partners to fully implement the JIR and to grant safeguards and guarantees to those participating in the dialogue. Finally, the Committee welcomes the Government’s indication in its supplementary report that a detailed Plan of Action with timelines was elaborated with the ILO Country Office in September 2020 to give guidelines to the tripartite partners and the Plan of Action enumerates issues to be addressed in order to implement recommendations of the ILO supervisory mechanisms, including the reconvening of the ERAB, the ERA matrix, the reform of the essential services list, training and sensitization of the police on civil liberties and freedom of association, as well as the organization of the direct contacts mission. In light of the above, the Committee urges the Government to take all necessary measures to continue to review the labour legislation within the reconvened ERAB, as agreed in the JIR and the September 2020 Plan of Action, with a view to rapidly bringing it into line with the Convention, taking into account the Committee’s comments below.

Article 2 of the Convention. Right of workers to establish and join organizations of their own choosing. The Committee had previously noted that the following issues were still pending after the adoption of the Employment Relations (Amendment) Act, 2016: denial of the 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 Employment Relations Promulgation, 2007 (ERP) (hereinafter, ERA, section 125(1)(a) as amended). The Committee notes, on the one hand, the Government’s indication that the tripartite partners met in August 2019 to discuss the proposed amendments and all clauses in the ERA matrix but observes, on the other hand, the ITUC and the FTUC allegation that no progress has been achieved since then and the matrix agreed by the tripartite partners is still pending with the Solicitor General’s office. In the absence of any substantial progress in this regard, the Committee urges the Government to finalize the process of review on the basis of the tripartite-agreed matrix so that the necessary amendments for bringing the legislation into full conformity with the Convention may be rapidly submitted to Parliament and adopted.

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 ERA as amended in 2015, the list of industries considered as essential services included: (i) the services listed in Schedule 7 of the ERP; (ii) the essential national industries declared under the former Essential National Industries (Employment) Decree, 2011 (ENID) (financial industry, telecommunications industry, civil aviation industry and public utilities industry), and the corresponding designated companies; and (iii) the Government, statutory authorities, local authorities and government commercial companies (following the adoption of the Public Enterprise Act, 2019, these are now referred to as public enterprises – an entity controlled by the State and listed in Schedule 1 of the Act or designated as such by the Minister).

The Committee welcomes the Government’s indication that, as agreed in the JIR and with the technical assistance of the Office, a workshop was held on 16 and 17 October 2019 with the participation of the tripartite partners to consider, gauge and determine the list of essential services and industries. The Committee also welcomes that, as a result of the workshop, the tripartite parties agreed on a time-bound plan of action to review the existing list of essential services within the ERAB and to engage in discussion with the aim of restricting limitations on the right to strike to essential services in the strict sense of the term and public servants exercising authority in the name of the State. The Government informs that it has received proposals for amendments from representatives of workers and employers and is currently considering them. The Committee notes, however, the concerns expressed by the FTUC that due to the Minister’s absence from the workshop, all decisions had to be referred to the Solicitor General’s office and that the timelines continue to be ignored without any justification for the delay in convening meetings to finalize the essential national industries list and the ERA matrix.

The Committee wishes to reiterate that while some essential industries are defined in line with the Convention, namely those which had been initially included in Schedule 7 of the ERP, other industries where strikes may now be prohibited due to the inclusion of the ENID in the ERA do not fall within the definition of essential services in the strict sense of the term, including: statutory government authorities; local, city, town or rural authorities; workers in managerial positions; the financial sector; radio, television and broadcasting services; civil aviation industry and airport services (except air traffic control); public utilities industry in general; pine, mahogany and wood industry; metal and mining sector; postal services; and public enterprises in general. The Committee also wishes to emphasize that provisions which prohibit the right to strike on the basis of potential detriment to public interest or economic consequences are not compatible with the principles relating to the right to strike. The Committee recalls, however, that for services which are not considered essential in the strict sense of the term, but in which strikes of a certain magnitude and duration could cause an acute crisis threatening the normal conditions of existence of the population or in public services of fundamental importance in which it is important to deliver the basic needs of users, a negotiated minimum service, as a possible alternative to fully restricting industrial action through imposed compulsory arbitration, could be appropriate. The right to strike may also be restricted for public servants but only those exercising authority in the name of the State. Given the extensive breadth of the services where workers’ rights to take industrial action may be prohibited, as noted above, the Committee urges the Government to meaningfully engage with the social partners without further delay to review the list of essential services, as agreed in the JIR and the October 2019 and the September 2020 action plans, so as to restrict limitations on the right to strike to essential services in the strict sense of the term and public servants exercising authority in the name of the State. The Committee requests the Government to provide information on the progress achieved in this regard.

In addition, the Committee has been requesting for a number of years that the Government take measures to review numerous provisions of the ERA. In the absence of any progress reported in this regard, the Committee recalls that the following issues in the ERA are still pending: 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); compulsory arbitration (sections 169 and 170, section 181(c) as amended, new section 191BS (formerly 191(1)(c)); penalty in form of a fine in case of staging an unlawful but peaceful strike (sections 250 and 256(a)); 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); and compulsory arbitration in services qualified as essential (sections 191Q, 191R, 191S, 191T and 191AA). In this regard, the Committee observes, from the resolutions adopted at the 48th biennial delegates conference of the FTUC provided by the Government in its supplementary report, the concerns expressed by the FTUC about the inefficiency of the Arbitration Court and the Employment Tribunals, as well as the need to improve the current dispute resolution system in order to reduce considerable delays in resolving disputes. The Committee therefore urges the Government to take measures to review the above provisions of the ERA, 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 (POAD). With regard to its previous comments concerning the practical application of the POAD, the Committee notes that the Government simply reiterates that the POAD facilitates the maintenance of public order and that prior permission is required to ensure the carrying out of administrative functions and the provision of law enforcement officers to maintain order. While further noting that the Government points to two instances, in October 2017 and January 2018, in which the FTUC obtained a permit and undertook marches, the Committee observes that, according to the FTUC, its recent requests to march from May, August and November 2019 were all refused. The ITUC and the FTUC denounce that permission for union meetings and public gatherings continues to be arbitrarily refused and that section 8 of the POAD has been increasingly used to interfere in, prevent and frustrate trade union meetings and assemblies. The Committee urges the Government to take the necessary 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 may be freely exercised.

Political Parties Decree. The Committee had previously 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. In its previous comments, the Committee further observed that the Political Parties Decree was unduly restrictive in prohibiting membership in a political party or any expression of political support or opposition by officers of employers’ or workers’ organizations, and requested the Government once again to take measures to amend the above provisions, in consultation with the representative national workers’ and employers’ organizations. Observing that the Government does not provide any new information and noting the ITUC concerns about the restrictive effect of the Political Parties Decree on legitimate trade union activities, the Committee reiterates its request in this respect.

Article 4. Dissolution and suspension of organizations by administrative authority. The Committee notes the ITUC allegations that in February 2020, the Government suspended five trade unions for failing to submit their annual audited reports and indicated that they faced penalties and deregistration if they continued to fail to comply with the legislation (the Hot Bread Kitchen Employees Trade Union, the Fiji Maritime Workers Association, the Viti National Union of I-taukei Workers, BPSS Co Limited Workers and Carpenters Group of Salaries Association and the I-taukei Land Trust Board Workers Union). According to the ITUC, such arbitrary measures represent a clear attempt at quashing independent trade unions and the legislation does not provide for sufficient guarantees for trade unions to operate without undue interference by the authorities, as demonstrated by section 128(3) of the ERA, which gives the Registrar excessive power to request detailed and certified accounts from the treasurer at any time. The Committee notes that the Government refutes this allegation as baseless and untrue and asserts that any suspension of trade union activity is done in accordance with section 133(2) of the ERA. With regard to the mentioned trade unions, the Government informs that: (i) in June 2019, the Registrar issued notices to 11 unions for failure to submit their annual returns under section 129 of the ERA; in August 2019, the Registrar issued a follow-up notice; and in September 2019, seven trade unions, which had not rectified their breach, were issued a notice of suspension; (ii) the notice of suspension provided the unions two months to show cause as to why their registration should not be suspended; (iii) despite the notice, four unions failed to rectify their breach and in June 2020, the Registrar published a notice of cancellation concerning the four unions; and (iv) the unions were again given two months to rectify their breach and the Registrar only cancelled the registration of those unions that failed to respond to the notice, whereas the remaining three suspended unions were able to submit their annual reports. The Government adds that there are currently 46 active unions in Fiji, which freely conduct their activities and the Registrar does not have the authority to dictate how they operate or function under their constitution, thus ensuring absolute freedom for trade unions to deal with their affairs. The Committee takes due note of the steps taken by the Registrar before suspending or cancelling the registration of the above trade unions and recalls that under section 139 of the ERA, a trade union may appeal a decision against suspension or cancellation of registration to the competent court. Further recalling however that the dissolution and suspension of trade union organizations constitute extreme forms of interference and should be reserved for serious breaches of the law after exhausting other possibilities with less serious effects for the organizations, and observing the ITUC’s allegations that these measures constitute an attempt at quashing independent trade unions, the Committee requests the Government to consider, in consultation with the most representative organizations, any measures that are appropriate to ensure that the procedures for suspension or cancellation of trade union registration are, both in law and in practice, in full accordance with the guarantees set out in the Convention.