Observation (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

The Committee takes note of the Government’s report as well as the comments made by the Fiji Trades Union Congress (FTUC) dated 25 August 2004 and the Fiji Mine Workers’ Union dated 26 August 2004. It also notes with interest the text of the (further amended) draft Industrial Relations Bill handed over by the Government on 3 June 2004.

Article 1 of the Convention. 1. Protection against anti-union discrimination. The Committee notes that according to the FTUC, although section 59(1) of the Trade Unions Act prohibits acts of anti-union discrimination, in reality workers are not accorded any protection because the controlling authority often refrains from acting as vigorously as it should. Thus, no employer has been successfully prosecuted to date despite numerous complaints referred to the Ministry of Labour and Industrial Relations for action. The FTUC attaches documents concerning delays in treating six complaints of anti-union discrimination, including one which has been brought before the Committee on Freedom of Association (Case No. 2316) and on which it is stated that although the union had notified the Ministry of the dismissals of 44 workers by the Turtle Island Resort in a letter dated 24 July 2002, no appropriate measures were taken resulting in the union’s recognition as representative being eventually withdrawn.

The Committee notes that according to the Government, the Ministry has received complaints that some employers are frustrating the rights of workers to form and join unions of their own choosing and these employers have been cautioned on the potential breach of the Trade Unions Act and the subsequent prosecution. It adds that the Trade Unions Act makes it an offence for an employer to stipulate the cessation of union membership as a condition of employment.

The Committee notes that according to the mechanism for dealing with acts of anti-union discrimination provided in sections 2, 3(1), 4 and 5 of the Trade Disputes Act, the complainant trade unions and their members do not have the standing to bring their cases to the courts or any other independent body so as to have their grievances examined; trade disputes may only be reported to the Permanent Secretary for Labour who has full discretion to reject the report, cause an investigation into it, or report it to the Minister who may in turn refer it to a Tribunal. The Committee emphasizes that in cases of anti-union discrimination the parties should have access to authorities like the ordinary courts or specialized bodies, which should have all the necessary powers to rule rapidly, completely and in full independence and in particular to decide the most appropriate form of redress in the light of the circumstances (General Survey on freedom of association and collective bargaining, 1994, paragraph 219). The Committee requests the Government to indicate in its next report any measures taken or contemplated to amend the legislation, possibly in the framework of the draft Industrial Relations Bill, so as to enable trade unions and their members to have access to the Labour Court on their own initiative for the examination of allegations of anti-union discrimination, if all other efforts at a rapid conciliation and negotiation fail, and to ensure that the Labour Court has the competence to order appropriate remedies.

2. The Committee further notes that according to the FTUC, section 24 of the Employment Act enables employers to terminate the services of employees by giving them short notice or pay in lieu of notice. The Committee notes that the Employment Act contains no obligation to show cause for dismissals and no provision prohibiting dismissals on anti-union grounds. The Committee recalls that legislation which allows the employer in practice to terminate the employment of a worker on condition that he pay the compensation provided for by law in all cases of dismissal, when the real motive is his trade union membership or activity, is inadequate under the terms of Article 1 of the Convention (General Survey, op. cit., paragraph 220). The Committee requests the Government to indicate in its next report any measures taken or contemplated to amend the Employment Act so as to introduce a specific prohibition of anti-union dismissals accompanied by sufficiently dissuasive remedies.

Article 2. Protection against acts of interference. The Committee notes that the FTUC refers to various acts of interference including the open promotion of in-house unions instead of independent ones and delaying tactics before the courts which enable employers to undermine unions seeking recognition while the trial is pending, by dismissing their members or intimidating them into resigning (this is what allegedly happened in the abovementioned Case No. 2316).

The Committee notes that according to the Government, section 59 of the Trade Unions Act (which prohibits anti-union discrimination) forbids by implication the exercise of control by employers over workers and workers’ organizations and that the recent ratification of Convention No. 87 as well as the amendments that will be made to the draft Industrial Relations Bill will ensure that there will be no interference whatsoever. The Government also indicates that the social partners reached an understanding in the Labour Advisory Board not to interfere with each other’s organizations.

The Committee observes that section 59 of the Trade Unions Act does not contain a specific prohibition of acts of interference and is not accompanied by the relevant implementation machinery while the draft Industrial Relations Bill does not seem to currently contain any provision in this respect. The Committee welcomes the information contained in the Government’s report on the understanding reached between the employer and worker members of the Labour Advisory Board. The Committee notes however that nothing in the Government’s report permits to affirm that this understanding is a legally binding agreement accompanied by sufficiently effective and dissuasive sanctions. The Committee hopes that the amendments to be made to the draft Industrial Relations Bill according to the Government, will ensure adequate protection, including sufficiently rapid machinery and dissuasive sanctions, against acts of interference by employers or their organizations into workers’ organizations, in particular, acts which are designed to promote the establishment of workers’ organizations under the domination of employers’ organizations. The Committee requests the Government to keep it informed in this respect.

Articles 1 and 4. With regard to its previous comments on the dispute in the Vatukoula Joint Mining Company (refusal to recognize a union and dismissal of striking workers), the Committee notes that according to the Fiji Mine Workers’ Union, on 11 June 2004, a final judgement was given in favour of the employer to the effect that the recommendations of the 1995 Commission of Inquiry were "null and void". According to the Fiji Mine Workers’ Union, the inactivity of the Government and its misinterpretation of the Trade Disputes Act have been largely responsible for the long delay in the resolution of this dispute which has lasted for 15 years and has caused great hardship to the dismissed workers. The Committee expresses regret at the long delay in the resolution of this dispute and requests the Government to transmit the text of the judgement in its next report.

The Committee also notes the claims put forward by the Fiji Mine Workers’ Union in its communication, namely: (1) the filing of an appeal on this case by the Solicitor General; (2) the payment of compensation to mitigate the hardship suffered by the workers; and (3) the provision of assistance to help the workers re-establish themselves within Vatukoula or elsewhere as recommended by a Senate Select Committee on 6 July 2004. The Committee requests the Government to indicate in its next report any measures taken or contemplated in this respect.

Article 4. The Committee notes with interest that the draft Industrial Relations Bill contains positive measures for the promotion of collective bargaining, in particular, provisions concerning good faith bargaining (section 156), the provision of information during bargaining (section 158) and the possibility of any trade union (without representativeness requirements) to report trade disputes to the Labour Tribunal (section 173). The Committee requests the Government to indicate in its next report any progress made with a view to the adoption of the Bill.

The Committee reminds the Government that it may avail itself of the technical assistance of the Office if it so wishes.

The Committee addresses a request on other points directly to the Government.