Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 284, Noviembre 1992

1. 642. The International Confederation of Free Trade Unions (ICFTU) presented allegations of violations of trade union rights against the Government of Fiji in communications dated 21 January and 10 February 1992. The Public Services International (PSI) presented its complaint of violations of freedom of association in a communication dated 27 January 1992.
2. 643. The Government sent its observations on the case in communications dated 3 April and 2 November 1992.
3. 644. Fiji has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 645. In its communication of 21 January 1992, the ICFTU alleges that on 31 October 1991 the Fiji Interim Administration adopted a series of Decrees amending Fiji's labour legislation in breach of Conventions Nos. 87 and 98. It supplies copies of the Decrees in question, Nos. 42, 43 and 44, as well as legal notices issued by the Minister for Employment and Industrial Relations, namely the Trade Union Regulations (Amendment) Regulations and the Trade Unions (Deduction of Union Dues) Regulations.
2. 646. The ICFTU claims that the Decrees were issued despite written assurances from the administration to the ICFTU and the Fiji Trades Union Congress (FTUC) following an ICFTU mission to the country in October 1989, to the effect that trade union rights would be fully restored, tripartite consultations re-established, recognition accorded to the FTUC as the representative body of trade unions and workers, and that any review of industrial relations laws and procedures be carried out in conformity with ILO standards. The Decrees subsequently adopted conflict with the principles of freedom of association and collective bargaining, and the views of the FTUC were clearly ignored in their elaboration.
3. 647. The complainant points out that the contents of the Decrees have many similarities to the contents of the much-criticised Decrees (Nos. 18 and 19) issued in May 1991 and subsequently suspended by the President of Fiji following representations from the FTUC. Although he had undertaken to take account of the FTUC's views on changes to the labour legislation, the new Decrees were passed while the President was out of the country.
4. 648. First, the ICFTU refers to section 3(a) of Decree No. 42 - the Industrial Associations Act (Amendment) Decree, 1991 - which changes the definition of "associations" and prohibits them from engaging "... in any trade dispute or matters connected with the regulations of relations between employees and employees, employees and employers or between employers and employers". According to the ICFTU, industrial associations have been the means by which certain workers, particularly in industries where it is not possible to identify a single employer providing continuous employment (e.g. in agriculture and manufacturing where workers may be engaged by different employers at different times or where goods produced by a worker are sold to a centralised purchasing agency) have organised and bargained collectively. Farmers (including sugar-cane farmers) have also relied on membership of such associations to further their interests, including on occasion through trade disputes. While industrial associations would, under Decree No. 42, exist primarily to further the professional interests of their members, these associations are now prohibited from engaging in trade disputes or regulation of relations.
5. 649. The ICFTU states that section 4 of Decree No. 42 prohibits certain officers of an industrial association from holding office in another such association or a trade union, in contravention of Article 3 of Convention No. 87. This section is aimed particularly at certain individuals who currently hold office in both associations and unions, and specifically at Mr. Mahendra Chaudhry, General Secretary of the FTUC, who also holds office in the National Farmers' Union (an industrial association) and the Fiji Public Service Association (a trade union). On 28 November 1991 (less than one month after the Decrees were issued), Mr. Chaudhry received a letter from the Registrar of Trade Unions giving him 14 days to vacate office in either the Farmers' Union or the Public Service Association and threatening him with a "heavy penalty". Under the provisions of the amended Act this could include a fine of F$2,000 and imprisonment of 12 months. This, according to the ICFTU, clearly demonstrates the intent of the administration to use the Decree to take action against persons identified as opposing the administration's denial of fundamental rights.
6. 650. Further limitations on eligibility for election as an office-holder in an association, which relate to duration of employment in an industry and previous conviction for certain categories of offence, also contravene Article 3. Should, for example, Mr. Chaudhry be convicted of an offence related to dual office-holding and such offence be found to involve "dishonesty", he would then be prohibited from holding office in a registered association for a period of five years under the new section 5A of the Industrial Associations Act. In addition, the Decree empowers the Registrar to refuse the appointment of persons to the offices of secretary and treasurer in unions. These provisions also contravene Article 3 of Convention No. 87.
7. 651. Secondly, with reference to Decree No. 43 - the Trade Unions (Recognition) Act (Amendment) Decree, 1991 - the ICFTU states that section 3(1), (2) and (3) provides for a procedure for establishing recognition of a trade union by an employer "... where more than 50 per cent of the membership thereof in the employment of an employer are voting members and there is no rival trade union claiming to represent these persons". Authority for the settlement of disputes in this regard resides with the Permanent Secretary. The ICFTU considers that the vesting of authority to determine questions of trade union recognition in a public servant, rather than a judicial authority, gives rise to the potential for decisions to be made based on the immediate interests of the administration rather than on the actual merits of recognition claims. The current administration has in the past registered racially based trade unions with membership clauses based on ethnicity (for example in 1988, in the sugar industry and the airline industry and, in 1987, in the civil service) even though membership of these organisations was less than 50 per cent of those eligible to join. The provision also leaves open the possibility that in public employment the employer concerned (the Permanent Secretary is defined as an employer under Decree No. 44, section 2(2)(b)) will determine whether an applicant union is to be accorded recognition.
8. 652. In addition, according to the ICFTU, there is considerable scope for an employer to inhibit the process of a union obtaining recognition simply by encouraging an application from a "rival" trade union for recognition, there being nothing in the amended Act to guarantee protection from such a course of action by an employer.
9. 653. The new provisions relating to adherence to the Trade Unions (Recognition) Act provide the Minister with the discretion to declare a strike relating to recognition unlawful. This can mean that an employer, in the course of a dispute over wages or conditions, will challenge the right of the union concerned to recognition as a means of restricting the recourse of that union to industrial action. The FTUC advises that at least one such case has already occurred, with the employer threatening to challenge recognition during negotiations over wages, unless the union accepted the employers' proposal for a wages settlement. Any union officer found guilty of an offence relating to recognition would, under the provisions of section 13(6) of Decree No. 43, be disqualified from holding union office for a period of two years.
10. 654. Under the new section 10 of the Act, the right to freedom of association is denied to "... persons who are employed in a confidential capacity or who represent the employer in matters affecting industrial or staff relations". This, in the complainant's view, clearly contravenes Article 2 of Convention No. 87 and Articles 1 and 2(a) of Convention No. 98. The section has the potential to affect substantial numbers of employees, including workers designated by an employer as supervisory or managerial staff (who represent the employer in matters affecting industrial or staff relations) and many categories of employees whose responsibilities include maintenance of confidentiality (e.g. administrative and secretarial staff).
11. 655. Thirdly, the ICFTU states that the amendment contained in Decree No. 44 - the Trade Unions Act (Amendment) Decree, 1991 - requires a union to hold a secret ballot of members on "all matters relating to requests by unions for solidarity support from any person or organisation outside Fiji". Such a requirement places an insupportable administrative burden on even the most simple request for international support. The ICFTU sees it as intended to deny Fiji trade unions access to international support.
12. 656. Fourthly, the ICFTU states that the new Regulation 10(1) contained in Legal Notice No. 58 (Trade Unions Regulations (Amendment) Regulations, 1991) provides for supervision of ballots by an employee of the Ministry for Employment. The supervision of ballots by a public servant is in contravention of Article 3 of Convention No. 87. These provisions also give rise to the possibility that, in public employment, supervision of a ballot could be carried out by a person who is the employer (as defined in section 2(2)(b) of Decree No. 44) of some or all of the employees involved in the ballot.
13. 657. Regulation 10(3) provides the Registrar or a designated person with the right to take action or give directions as they consider necessary to avoid any irregularity, notwithstanding anything in the rules of the union. The ICFTU considers this to be contrary to Article 3 of Convention No. 87, which enshrines the right of workers' and employers' organisations to draw up their constitution and rules and to elect their representatives in full freedom.
14. 658. The provisions in Regulations 10A and 10B institute a time-consuming and expensive procedure to be followed by a union contemplating taking or authorising strike action. Since the membership of many unions is spread over the islands in small branches, these provisions will impose profound practical limitations on the exercise of fundamental trade union rights. Given the extremely broad definition of "strike" in Decree No. 44, these Regulations severely constrain the capacity for even the most limited kind of industrial action to be taken by workers through their unions. In addition, the ICFTU considers that the limitation of six weeks on the duration of a mandate to take strike action deriving from a ballot further limits the potential for union members to address grievances. This is particularly so since the Regulations provide neither recourse to mechanisms for conciliation or arbitration nor any obligation on an employer to negotiate in good faith during the period prior to expiration of the mandate.
15. 659. The ICFTU points out that the provisions contained in Legal Notice No. 59 change the procedures relating to deduction of union dues in a way which imposes a cumbersome, time-consuming and expensive burden on unions. These changes will have the effect of severely weakening the financial base of the trade union movement in Fiji and limiting the effectiveness of unions in representing their members, as they will need to spend a disproportionate amount of time and resources on fulfilling the new administrative requirements. The complainant stresses that several unions in Fiji, having members in disparate locations, have relied on the previous, efficient system of dues collection to maintain an effective representation of their membership. Under the previous provisions, unions were required to prove the consent of the workers concerned in order to exercise their legal right to the deduction of dues. This meant that an employer was only obliged to provide the facility for dues deduction after consent was proven. According to the ICFTU, it is clear that the administration now intends to use the abolition of this legal right to undermine the very basis of the union movement.
16. 660. According to the complainant, the Government is attempting to impose "agreements" on unions (copies of which are supplied), requiring them to forfeit basic rights in return for dues deduction. One such "agreement" has been given to four FTUC affiliated unions in the civil service, and the unions have been advised by the Public Service Commission that they must sign the document in return for deduction of dues at source. Unilateral termination of dues deduction was imposed on all four unions on 24 December 1991. The clauses contained in the "agreement" constitute a flagrant violation of basic rights. They include (clause 3) a requirement for unions not only to abide by, but also to "acknowledge, support and endorse" the recently enacted Decrees; clause 4 requires that the union abrogate the right to strike and clause 5 requires unions to undertake not to seek solidarity support. The wording of clause 5 clearly indicates that the administration defines any effort by a union to seek solidarity support from within or outside Fiji as harming or being likely to cause harm to the existence of Fiji. Clause 2 of the document provides for the costs of payroll deductions (which were, under the previous provisions, at no cost to the union) to be set unilaterally by the administration. This provision would enable the administration to apply pressure on a union which had signed the "agreement" to give up further rights at any time by simply threatening to increase the costs applicable to the union concerned.
17. 661. The ICFTU submits that, taken as a whole, the entire set of measures recently issued by the administration constitute an offensive against fundamental trade union rights in Fiji and will severely restrict the ability of trade unions to defend the rights and interests of workers to the best of their ability.
18. 662. By a letter dated 10 February 1992, the ICFTU adds that the General Secretary of the FTUC, Mr. Mahendra Chaudhry (mentioned above as a target of the new Decrees), has not only been subjected to questioning, harassment and threats of incarceration, but has been summoned to appear in the Suva Magistrate's Court on 11 February 1991 to answer charges laid against him for holding office in two trade unions. In the statement of offence it is alleged that his dual function is contrary to section 5A(1)(a) and (4) of the Industrial Associations Act (Amendment) Decree No. 42 of 1991. His holding of two posts - General Secretary of the National Farmers' Union and of the Public Servants' Association - was challenged by these organisations in a case filed last November. The ICFTU sees the legal proceedings commenced under the amended legislation as a further attack on fundamental trade union rights.
19. 663. In a letter dated 27 January 1992, the PSI, on behalf of its four public sector affiliates in Fiji, expresses its support of this complaint. It alleges that public sector unions have been especially singled out for requirements of "oaths of loyalty" before the restoration of their agreed check-off system for collection of dues. Workers have lost their right to strike and to assist one another or be assisted by other unions. Mr. Chaudhry, General Secretary of one PSI affiliate, has been particularly targeted for public attack by the Government and has been threatened with substantial fines and/or imprisonment for being elected by workers to hold office in the unions which he heads. It adds that these legislative changes were made despite the solemn promises to the international trade union movement that no changes would be made without consultation with the FTUC.

B. The Government's reply

1. 664. In a letter dated 3 April 1992, the Government recalls recent events in Fiji. It states that the Interim Government was established as a result of the bloodless military coups of 1987 and is headed by a widely respected statesman, who was the country's leader from independence in 1970 until 1987. While electoral legitimacy cannot be claimed, there is the legitimacy of long previous service as an elected representative of the people and a commitment to restore democracy in the country with a workable Constitution. Elections under the new Constitution were due to take place in May 1992. The Government also describes the Fijian economy, which was seriously affected by the lack of confidence after the coups. There has, however, been strong recovery in 1989 and 1990 and the Government has instituted a range of longer-term economic reforms aimed at raising the growth potential of the economy to avoid the strains on output and investment due to small domestic markets and import substitution.
2. 665. According to the Government, on this latter policy issue, Fiji's labour market was characterised by a multiplicity of regulations and controls over wages and employment conditions. Both the World Bank and the IMF have stressed the need to increase labour market flexibility and to link wages to productivity. Accordingly, wage and salary guidelines, which had imposed statutory limits on the level of settlements throughout the economy, were lifted as from 31 July 1991, leaving trade unions free to negotiate what they could with employers. As a counterpart to this change, labour legislation was amended to ensure that union members were firmly in control of the actions of their union and its leaders and that negotiations were conducted in a responsible manner using the strike weapon only as a last resort.
3. 666. The legislative changes include:
   • (i) extension of opportunities for voting in the election of union officials through postal and/or workplace balloting;
   • (ii) introduction of a limit of six weeks on the validity of a strike ballot;
   • (iii) penalties for breach of legislation are generally increased (penalties set in 1964 have been raised, in most cases to a maximum of $2,000, to provide some measure of deterrent to illegal action);
   • (iv) employers will no longer be required by law to deduct trade union dues from the wages and salaries of members of recognised trade unions. Such deductions may still be made by agreement between trade unions and employers;
   • (v) provisions on trade union recognition are tightened to prevent employers adjusting employment levels to evade the requirement for recognition. The required level of union membership for compulsory recognition remains at 50 per cent.
4. 667. The Government states that the amendments are generally in line with reform of trade union legislation in the United Kingdom and elsewhere during the 1980s. However, the reforms in Fiji are very moderate in comparison with amendments in other parts of the world.
5. 668. As for the ICFTU claim that the Decrees were enacted despite assurances to the contrary given to an ICFTU mission, the Government attaches a copy of the joint statement issued by the Government and the ICFTU at that time. It is clear that no such assurances were given and no breach of ILO Conventions is alleged. In addition, the Government denies that the views of the FTUC were ignored. It lists the extensive consultations which were held on the reforms: at the 1989 National Economic Summit the Minister for Trade and Commerce gave an address on the subject; at the 1991 National Economic Summit the Minister for Trade and Commerce presented government proposals, which received extensive support except from trade union leaders, indicating widespread dissatisfaction with the behaviour of trade unions. There was little support for ending the Wages Councils (which set minimum wages) so this proposal was dropped for the time being; following the 1991 Summit, both the Fiji daily newspapers published editorials in support of the labour reforms; further consultations were held after the 1991 Summit between the Government, employers' and trade union representatives. The meetings agreed to the establishment of a voluntary mediation and arbitration service (VMAS) to provide a "fast track" and more informal system for resolving industrial disputes through arbitration. The VMAS is operating successfully. The proposed amendments to labour legislation were referred to the Labour Advisory Board, where the employers supported the reforms, in some areas advocating stronger measures, but trade union representatives declined to discuss them.
6. 669. The Government states that hard-line union leaders, including Mr. Chaudhry and Mr. Columbus, consistently refused to participate in debate, at the 1991 Summit, at subsequent meetings with the Government and representatives of employers and employees, and in the Labour Advisory Board. Yet they raised no objection to the lifting of the statutory wage and salary guidelines, even though they knew they were inextricably linked to the reform of legislation. While hard-liners refused to attend the various meetings, moderate trade union officials did attend, including those whose unions are affiliated to the FTUC. According to the Government, the trade union movement is deeply divided on the reform issue. It points out that, to date, 11 unions have signed agreements under the reformed legislation with their employers. Others are in the process of negotiation.
7. 670. The amendments to the Industrial Associations Act contained in Decree No. 42 (definition of an industrial association) are designed to make a clear distinction between an industrial association or professional association, to be registered under the Act, and trade unions, whose primary purpose is regulation of relations between employees and employers. Organisations previously registered as industrial associations can re-register as trade unions, thereby ensuring that they are covered by the Trade Disputes Act for the purposes of industrial action.
8. 671. The Government states that prior to the enactment of the Trade Unions Act, the registration of all friendly societies including trade unions was made under the provisions of the 1941 Industrial Associations Act. The Trade Unions Act was needed to separate the registration and the administration of trade unions from other friendly societies including industrial associations, there being a clear distinction between the functions and roles of industrial associations from that of trade unions. The Government attaches a list of industrial associations registered under the Industrial Associations Act to show that industrial associations are groupings of individuals with similar professions for the purpose of furthering their professional interests. The allegation that farmers, including sugar-cane farmers, relied on membership of such associations to further their interests on occasions through trade disputes is unfounded. The Government points out that the Sugar Industry Act, 1985, provides procedures for the settlement of differences between those involved in the sugar industry including cane farmers. It adds that the procedures for the settlement of trade disputes provided for under the Trade Disputes Act require, as a prerequisite, the recognition of a trade union by that particular employer with whom the dispute has arisen. For the Government, it is clear from the definition of "trade dispute" that it concerns the relationship of employees with their employers or with each other. It cannot therefore include the relationship between the sugar-cane farmers and the Fiji Sugar Corporation, as suggested in the complaint.
9. 672. As for the allegation that restrictions on office-holders in industrial associations and trade unions is in breach of Article 3 of Convention No. 87, the Government states that the restrictions introduced for industrial associations are similar to existing, unamended provisions (section 31) of the Trade Unions Act. The prohibition by law on the holding of more than one office by an official union was introduced when the Trade Unions Act came into being in 1964. The Trade Unions Act, before enactment, was fully discussed in the Labour Advisory Board, which comprises representatives of Government and equal representatives from the employers' and employees' organisations. It recommended its enactment. The Government supplies a copy of the relevant LAB meeting minutes which show that the workers' representatives at that time agreed to the restriction of a union official from being an official of another trade union. The Government thus concludes that the inclusion of a similar prohibition in the Industrial Associations Act is only an extension of this accepted principle.
10. 673. The Government states that the restriction on the holding of offices in an industrial association and a trade union was not brought about to prohibit the activities of certain individuals as claimed by the ICFTU and was not intended by the Government to be used to take action against persons identified as opposing it. The Government considered that the provisions of the Industrial Associations Act should be brought into line with those of the Trade Unions Act which has, since 1964, had limitations on eligibility for election as an office-holder relating to the duration of employment in an industry and previous convictions for certain categories of offences.
11. 674. With regard to Decree No. 43, the Government recalls that section 3(2) of the Trade Unions (Recognition) Act empowers the Permanent Secretary to determine a compulsory recognition application and make a compulsory recognition order in accordance with the provisions of the Act (126 applications decided up till December 1991). The reference to racially based unions being allowed to register is misleading. Freedom of association requires that any union can be registered and, in Fiji, the Trade Unions Act has been amended - by the removal of section 13(e) which had been criticised by the ILO Committee of Experts on the Application of Conventions and Recommendations - to allow rival unions to register. This, states the Government, is in accordance with Convention No. 87. As for the ICFTU's concern about the registration of racial unions being linked to the power vested in the Permanent Secretary to decide union recognition, the Government states that the Registrar of Trade Unions, who acts independently and not under the control of the Permanent Secretary, is responsible for the registration of trade unions and that the Trade Unions Act only requires not less than six people to form a trade union. The Permanent Secretary's power provided under the Recognition Act is only to determine recognition matters; that statutory power has been exercised independently since 1976.
12. 675. The ICFTU's claim that there is considerable scope for an employer to inhibit a union obtaining recognition simply by encouraging an application from a rival union is unfounded and has never occurred. In any case, no change from the previous situation has been made and no breach of ILO Conventions is alleged. The Government states that many of the amendments to the Trade Unions (Recognition) Act make it easier for trade unions to apply successfully for recognition. The amendments require that a date be fixed for the counting of union members in a particular place of employment. This prevents employers from sacking union members in order to reduce union membership of the workforce to below the 50 per cent required for union recognition. The amendments also give power to the Permanent Secretary to examine an employer's employment records to assist in determining whether the union is entitled to recognition.
13. 676. As regards the new powers given to the Minister to declare a strike relating to recognition unlawful, the Government states that these powers are similar to powers under the unamended Trade Disputes Act where the Minister has the power to declare certain strikes as unlawful. Fears that an employer may challenge a union over the question of recognition during negotiations are unfounded. The provisions of the Trade Unions (Recognition) Act are very clear in that the prerequisite to a right for collective bargaining is union recognition. The penal provision goes with the Minister's power to act as a deterrent for those people that disregard the law.
14. 677. As for the ICFTU's allegation that freedom of association is denied to certain categories of workers, the Government states that the ICFTU is mistakenly under the impression that the amendment denies the right of some public servants to join a union. Rights to join a union are unaffected by any of the amendments. The new provision merely removes an anomaly in the principal Act by extending the old provision to cover both cases of compulsory recognition and voluntary recognition.
15. 678. With regard to Decree No. 44, the Government states that most important matters have always required a secret ballot, for example election of office-bearers and union amalgamation. That principle has been extended to include situations where unions seek solidarity support (trade bans, suspension of air services) from outside the country.
16. 679. As for the Trade Unions Regulations (Amendment) Regulations, 1991, the Government states that the supervision of ballots was felt necessary in order to stop the widespread abuse of balloting arrangements. The new provisions empower the Registrar of Trade Unions to supervise ballots undertaken by unions or, in his absence, the Registrar is empowered to appoint an officer of the Ministry of Employment and Industrial Relations to represent him. The Government does not feel that such powers contravene Convention No. 87 as alleged and there is no possibility of abuse of powers as claimed in the complaint.
17. 680. It states that the ICFTU's criticism of Regulations 10A and 10B is unwarranted. The Government considers it reasonable to expect that a secret ballot is conducted of union members before a union endorses a call to strike. A strike should be used only as a weapon of last resort after negotiations have irretrievably broken down. The provisions allow great flexibility on how a union decides to conduct a ballot - either at the workplace, by post or elsewhere. Fiji has an efficient communication system with all the inhabited islands in the group. Secret ballots conducted either by personal casting of votes at a central place or by postal ballot is not difficult and not financially burdensome as claimed. The Government points out that six trade unions and affiliates of the FTUC have already held secret ballots under the new procedures and no difficulties were encountered even though their membership is scattered all around the islands. The Government adds that the amended definition of "strike" in Decree No. 44 is similar to that used in other countries in this region. It mentions that the High Court in Fiji has ruled that the word "strike" under the Trade Disputes Act, although not specific, covers the new matters in the new definition of strike, and encloses a copy of the High Court judgement in question.
18. 681. Regarding the limitation of six weeks for the duration of a strike mandate, the Government is of the view that a strike mandate cannot be open-ended. It must relate to a particular issue. Some unions have in the past received blanket approval for strike action during their annual meeting. It is not possible to have productive negotiations between employers and unions when a constant threat of strike action is held over the employer.
19. 682. A legal requirement on employers to deduct dues was considered by the Government to be an unnecessary burden on employers. The new regulation allows for voluntary agreement on deduction of union dues. This is a more common and fairer system than using legal means.
20. 683. On public service "agreements", the Government states that the description of the "agreement" as requiring unions to "forfeit basic rights" in return for check-off in the civil service is far from the truth. Two of the civil service unions signed an agreement which merely asks them to undertake to recognise the legislative changes and not engage in any unofficial or illegal strike action. This does not abrogate the right to strike.
21. 684. The Government concludes by stressing that the reform of labour legislation is part of wide-ranging economic reforms that have already had a highly beneficial effect on the economy; it is not an attack on trade unions: trade unions retain the right to organise workers and to strike; workers retain the right to join the union of their choice. Economic growth arising from the reforms will create employment and raise real incomes. Extensive consultations were held before the reforms were introduced, there is a high degree of support for them in the community and the nation will be able to judge the issue during a general election to be held in May 1992. Finally, the Government states that it had fully in mind its obligations under ILO Conventions in drawing up the reforms and sincerely holds that they are not inconsistent with or in contravention of ILO Conventions.
22. 685. To its communication of 2 November 1992 the Government attaches a copy of the Minister for Labour and Industrial Relations' address before the US Trade Policy Staff Committee concerning Fiji's status within the generalised system of preferences (GSP). In this statement, the Minister denies that the legislative changes contravened internationally accepted workers' rights and states that relations between the new Government and labour unions have improved immeasurably. The Government, following meetings with the FTUC, has undertaken to review the labour Decrees in full consultation with the FTUC.

C. The Committee's conclusions

1. 686. The Committee notes that this case involves allegations that three Decrees adopted in October 1991 as well as Regulations issued on prerequisites for strike action and the deduction of union dues violate various principles of freedom of association. In addition, the complainant alleges that all these legislative changes were made without consultation and in spite of formal undertakings given by the authorities to take account of the FTUC's views on protection of freedom of association in the country.
2. 687. The specific points complained of are: (1) a change in the definition of "association" (section 3 of Decree No. 42); (2) a ban on multiple office-holding - evidenced by the proceedings commenced in February 1991 against Mr. M. Chaudhry who holds leadership positions in two different unions - and other conditions on eligibility for union office (section 4 of Decree No. 42, which inserts a new section 5A in the Industrial Associations Act); (3) administrative restrictions on recognition (section 3 of Decree No. 43); (4) a ban on strikes relating to union recognition (section 10 of Decree No. 43 which inserts a new Part III in the Trade Unions (Recognition) Act); (5) exclusion of certain categories of workers from recognition (section 7 of Decree No. 43); (6) the introduction of secret ballot requirements on solidarity issues (section 4 of Decree No. 44); (7) supervision of union ballots and power to take certain action vested in the administrative authority (Regulation 10(1) and (3) of the Trade Union Regulations as amended); (8) notice and secrecy requirements and a six-week validity period introduced for strike ballots (Regulations 10A and 10B); (9) the removal of legal check-off facilities (section 2 of the 1991 Trade Union (Deduction of Union Dues) Regulations); and (10) the imposition of certain requirements on public service associations in return for signature of check-off agreements.
3. 688. The Committee notes the Government's detailed reply to these allegations, in particular its denial that the legislative changes were based on anti-union motives, but were rather part of the extensive labour market reform it had undertaken with encouragement from international financial institutions.
4. 689. On the initial allegation that these reforms were introduced without any consultation with the FTUC and despite earlier government assurances that any legislative amendments would take account of the organisation's views, the Committee notes the Government's denial of this. According to the Government there were extensive consultations. In particular, the Committee notes that, after their widely publicised introduction at the 1991 National Economic Summit, the proposed legislative changes were discussed at the tripartite Labour Advisory Board where, although the FTUC was not present, union representatives from other workers' organisations (including some affiliated to the FTUC) were. Nevertheless, the Committee cannot but regret that sufficient specific contacts were not made by the Government with the major industrial organisations to discuss the proposals. These proposals, despite being aired broadly in the community through the Summit and the media, certainly merited more detailed scrutiny in the presence of the representatives of the labour movement. Even if tripartite discussions in the Labour Advisory Board were thwarted by the absence of the FTUC itself, the Government ought to have persevered in having the matter debated so that at least the views of all the parties could be publicly recorded, even if agreement was not possible.
5. 690. Turning to the specific allegations raised by the complainant, the Committee first notes that section 3(a) of the Industrial Associations Act (Amendment) Decree No. 42 amends the definition of "associations" to limit them to the protection and furthering of their professional interests and to prohibit them from engaging in any dispute over employer-employee relations. In reply, the Government points out that the amendment aims at making a clearer distinction between professional associations and trade unions, and that organisations wishing to be covered by the provisions of the Trade Disputes Act for disputes can re-register as trade unions. The list of registered industrial associations provided by the Government shows that employers or self-employed groups such as taxi owners, market vendors, bankers, musicians and landowners, etc., register under the Industrial Associations Act. For this group of self-employed workers, no question of trade disputes arises vis-à-vis an employer.
6. 691. However, the Committee notes that, according to the complainants, if a group of wage-earners wishes to form a union for furthering and defending the members' interests, it registers under the Trade Unions Act subject to certain requirements particularly the need to be employees of only one employer. The Committee considers that this requirement is a problem for those workers having multiple employers who, wanting registration as a trade union, fall foul of the Trade Unions Act's requirement that employees have one sole employer. As long as any group of wage-earners having several employers finds its means of action restricted - because of the requirements of the Trade Unions Act - there is a violation of the principles of freedom of association.
7. 692. Secondly, on section 4 of Decree No. 42 which prohibits the multiple holding of office and places certain restrictions on eligibility for union office (current engagement in the industry concerned for one year and no criminal conviction for fraud, dishonesty or extortion for the past five years), the Government defends this provision by arguing that it is similar to already existing provisions in the Trade Unions Act. Those provisions had been agreed upon in 1964 in a tripartite forum, and the Government denies that their extension to the Industrial Associations Act was intended to target any particular individual. The Committee's opinion on restrictions of this kind is that provisions which require that trade union leaders shall, at the time of their election, have been engaged in the occupation or trade in which the organisation functions for more than a year, are not compatible with Convention No. 87 (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 304). An additional incompatibility lies in the discretion vested in the Registrar for the filling of the offices of secretary and treasurer which may be held by persons not actually engaged in the trade or industry: such a provision, prima facie, appears to allow a certain flexibility in electing qualified outsiders to posts which require specific aptitudes, and yet gives an administrative official power to refuse a person freely elected by members of a workers' organisation. The Committee is also of the opinion that a ban on holding office in more than one workers' organisation interferes with the right of workers to elect their representatives in full freedom (Digest, para. 293). Given that proceedings have been instituted against a trade union leader (Mr. Mahendra Chaudhry) for holding leadership posts in two different unions, the Committee asks the Government to cease prosecution action and to inform it of the measures it intends taking to bring these provisions into line with the principles of freedom of association.
8. 693. However, the Committee recalls - as does the Committee of Experts on the Application of Conventions and Recommendations (General Survey on Freedom of Association and Collective Bargaining, 1983, paras. 163 and 164) - that disqualification from office because of certain specific crimes calling into question the integrity of the official might not be in contravention of the right to elect leaders freely. In the present case, ineligibility based on "any crime involving fraud, dishonesty or extortion" could run counter to this right since "dishonesty" could cover a wide range of conduct not necessarily making it inappropriate for persons convicted of this crime to hold positions of trust such as trade union office.
9. 694. Thirdly, with regard to the recognition requirements added by section 3 of the Trade Unions Recognition Act (Amendment) Decree No. 43, the Committee notes the Government's arguments that the powers vested in the Permanent Secretary to deal with an application for recognition were already present in the 1976 Act, that they are exercised independently, that no employer to date has attempted to encourage a rival union in an undertaking so as to frustrate such an application and that the complainant has confused the two separate issues of "registration" and "recognition for collective bargaining purposes". The recognition requirements (50 per cent of employees to be voting members of the applicant union; no rival union also claiming to represent these persons; application to be in writing and sent by registered mail or hand-delivered to the employer with a copy to the Permanent Secretary; the latter to have access to documents to verify figures) seem to be objective and pre-established, aimed at avoiding partiality or abuse, and the civil servant verifying the claim acts independently in applying the provisions of the Act (General Survey, para. 295). Moreover, the making of compulsory recognition orders complements the principle that employers should recognise for the purposes of collective bargaining organisations that are representative of workers in a particular industry (Digest, para. 619). In fact it appears that the 1991 Decree merely makes it particularly clear that a union must first present a claim to the employer concerned and then, if unsuccessful, apply for a compulsory recognition order to the Permanent Secretary who verifies that claim objectively (Digest, para. 620) and who has, according to the Government's figures, decided on 126 such applications up to December 1991. Nevertheless, the Committee notes that a recognition claim could be blocked by the existence of a rival union. It thus considers that, in cases of union rivalry over exclusive bargaining rights, representativity should be solved rapidly and objectively, for example by having a vote taken.
10. 695. The Committee notes, furthermore, that the Act is silent as to the position of a majority union which does not cover 50 per cent of the employees in a bargaining unit. The Committee of Experts has recalled that, if under a system of designating an exclusive bargaining agent there is no union covering more than 50 per cent of the workers, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members, so that negotiations cannot be frustrated for the lack of a bargaining partner (General Survey, para. 295). The Committee therefore trusts that the Permanent Secretary, in making orders under section 3 of the Act, takes account of this principle, and it asks the Government to keep it informed of the number of applications made and granted since the 1991 Decree came into force.
11. 696. Fourthly, the ICFTU alleges that section 10 of the Decree outlaws strikes arising out of a recognition dispute. The Government points out that similar powers exist under the Trade Disputes Act and that fears about an employer challenging a union's recognition during negotiations are unfounded since negotiations cannot even begin until recognition is settled. In the Committee's opinion this ban on strikes related to recognition disputes is not in conformity with the principle that recourse to strike action is a legitimate means available to workers and their organisations for the promotion and defence of their occupational interests (Digest, para. 362). It accordingly requests the Government to take the measures necessary to restore the right to strike over recognition issues, and to keep it informed of any action taken.
12. 697. Fifthly, as regards the allegation that the amendment to section 10 of the Act denies freedom of association to persons who are employed in a confidential capacity or who represent the employer in matters affecting industrial or staff relations, the Committee notes the Government's reply that the amendment merely extends the provision already existing in the Act concerning only compulsory recognition orders to cover both cases of compulsory recognition and voluntary recognition. The Government suggests that the complainant has confused the right to join organisations with the scope of recognition orders which are made in the context of collective bargaining. The Committee recalls that the supervisory bodies of the ILO have accepted that, with a view to avoiding conflicts of interest, certain conditions may be imposed on the freedom of association of managerial staff or those involved in confidential labour relations tasks. But for there not to be an infringement of freedom of association, it should be clear that these workers have the right to form their own organisations to defend their particular interests (General Survey, paras. 86-88 and 131). These organisations should, in turn, be able to apply to the employer for voluntary recognition for their specific bargaining purposes and to the Permanent Secretary for a compulsory recognition order in the same terms.
13. 698. Sixthly, as regards section 4 of the Trade Unions Act (Amendment) Decree No. 44 which introduces the requirement of secret ballot for matters concerning solidarity support, the Committee notes the Government's reply that important union decisions have always required a secret ballot. The Committee considers that this is a matter which should be left to the internal rules of a workers' organisation and accordingly requests the Government to keep it informed of the measures taken to remove this interference in the internal affairs of trade unions.
14. 699. On the seventh specific allegation, concerning the supervision of union ballots contained in new Regulation 10(1) and (3) of the Trade Unions Regulations, the Committee observes that, according to the Government, the introduction of this requirement was necessary to stop the widespread abuse of balloting arrangements and there is "no possibility of abuse" of the Registrar's powers. The Committee is of the view that legislative provisions prescribing the intervention of certain administrative authorities in the election procedure (for example the obligatory presence of labour inspectors or representatives of the administration - such as the Registrar in the present case - during voting or the participation of these officials in the counting of votes) create the risk of interference in the right to free elections which is not compatible with Convention No. 87. Even if the provisions in question are aimed at preventing disputes, intervention by the administrative authorities is liable to appear arbitrary, and it is desirable that supervision, if it is necessary, should be exercised by the competent judicial authority so as to guarantee an impartial procedure (General Survey, para. 173). In the present case, the Committee asks the Government to keep it informed of the measures taken to repeal this restriction on freedom of association.
15. 700. Eighthly, as for new Regulations 10A and 10B which introduce notice and secrecy requirements for strike ballots, the Government argues that this is a reasonable requirement for such an important decision as a strike call and that it allows enough flexibility for the balloting so as to avoid any practical problems (provision is made for postal ballots or workplace ballots or at a place convenient to the voters). The Government also stresses that six unions and affiliates of the FTUC have already held secret ballots under the new provisions and no difficulties were encountered despite the fact that their membership is scattered around the islands. The Committee, while conscious of the constraints due to the geographical characteristics of the country, recalls that it has considered in previous cases that obligations to give notice and to take strike decisions by secret ballot are acceptable (Digest, paras. 381 and 382).
16. 701. As for the introduction of a six-week limitation on the validity on strike ballots also contained in Regulation 10B, the Committee notes the Government's argument that a strike mandate must relate to a particular issue and that it is not conducive to productive negotiations when a constant threat of strike action is held over the employer. The Committee takes particular note of the fact that the limitation does not in practice restrict workers from striking, but merely complicates the prerequisites for taking strike action. However, in the Committee's opinion, this restriction appears to be an unnecessary interference since the strike mandate can be renewed indefinitely at the end of every six-week period, thus still leaving an ongoing form of pressure on the employer. This is, in any case, a matter which should be the subject of internal regulation by unions, and the Committee accordingly asks the Government to remove this interference in the affairs of workers' organisations.
17. 702. On the ninth point, concerning the removal of the compulsory check-off facilities introduced by the Trade Unions (Deduction of Union Dues) Regulations, 1991, the Committee notes that the Government considered the previous situation to be an unnecessary burden on employers; the Government stresses, however, that provision remains for voluntary agreement on deduction of union dues. Noting that the parties are free to negotiate such agreements, the Committee considers that the current position does not run counter to the principles of freedom of association.
18. 703. Lastly, the complainant alleges that public service associations are obliged to give certain undertakings in return for the signature of voluntary check-off agreements. The Committee notes the Government's denial and explanation that two of the civil service unions signed an agreement which merely asks them to undertake to recognise Decrees Nos. 42, 43 and 44 and not to engage in any unofficial or illegal strike action. From a copy of one such agreement supplied by the complainant, the Committee observes that a signatory association undertakes to abide by the Decrees "in consideration of the Government deducting union dues pursuant to this Agreement" and accepts a very wide ban on its freedom of action: not to encourage or participate directly or indirectly in any strike as defined in Decree No. 44. While recognising the autonomy of the parties negotiating such check-off agreements, the Committee nevertheless draws the Government's attention to the fact that this kind of precondition to a so-called "voluntary" check-off agreement is not conducive to harmonious industrial relations, especially as the Government is both the administrative power establishing such agreements and the employer signing them. It accordingly asks the Government to have those particular "standard" undertakings removed from civil service check-off agreements so that parties to such agreements are left without interference to negotiate their contents and any rights and duties arising from their signature.
19. 704. As a final overall point, the Committee would point out to the Government that legislation which minutely regulates various aspects of union activities is incompatible with the principles of freedom of association. The Committee recommends that the Government amend the legislation as indicated above so as to leave the necessary autonomy to workers' organisations in electing their representatives, organising their administration and activities and formulating their programmes in accordance with their own internal rules.