Demande directe (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee takes note of the Government’s report as well as its reply to the comments made by the International Confederation of Free Trade Unions (ICFTU) in a communication of 10 August 2006 mainly concerning issues already raised (Government communications of 3 November 2006 and 23 May 2007). 

The Committee takes note with interest the text of Employment Relations Act No. 36 of 2007 (ERA), which went into effect on 1 October 2007 and repealed the Trade Unions Act, the Trade Disputes Act, the Trade Unions (Recognition) Act and the Employment Act (section 265 of the Employment Relations Act). The Committee notes that the ERA has introduced significant improvements in relation to the previous legislation, although certain issues remain.

1. In its previous comments, which concerned the provisions of the Trade Unions Act, the Committee had requested the Government to extend the right to organize to prison staff (section 2(2) of the Trade Unions Act). The Committee notes that section 3(2) of the ERA excludes the Prisons and Correction Services from the scope of the law. Recalling that under Article 2 of the Convention all workers without distinction whatsoever, including prison guards, have the right to establish and join organizations of their own choosing, the Committee requests the Government to indicate in its next report the measures taken or contemplated with a view to amending section 3(2) of the ERA so as to guarantee this right to prison guards.

2. The Committee had requested that the Government enable workers exercising more than one occupational activity in different occupations or sectors to join the corresponding trade unions as full members (section 21(1) of the Trade Unions Act). The Committee notes that section 119(2) of the ERA provides that an application for registration must be signed by more than six members provided that no member shall belong to more than one trade union. The Committee requests the Government to amend section 119(2) of the ERA so as to allow workers who engage in more than one occupational activity in different occupations or sectors to join the corresponding trade unions.

3. The Committee had requested that the Government establish appropriate safeguards against interference by the Registrar who was given a genuinely discretionary power to require a change in the name of a trade union (section 12 of the Trade Unions Act). The Committee notes that section 122(1)(c) of the ERA provides that if a trade union name is in the opinion of the Registrar “undesirable”, then the Registrar must request the applicant to alter the name and must not register the trade union until the alteration has been made. While taking due note of previous comments by the Government according to which at times, objections are raised by cultural organizations as trade union names may have cultural connotations which could be sensitive to the country’s diverse culture, the Committee considers nevertheless, that the term “undesirable” is too general and establishes a genuinely discretionary power of the Registrar. The Committee therefore requests that the Government amend section 122(1)(c) of the ERA so as to establish safeguards against interference by the Registrar.

4. The Committee notes that, under section 125(1)(a) of the ERA, the Registrar may refuse registration if the principal objects of the persons seeking registration are not in accordance with those set out in the definition of trade union. The Committee requests the Government to provide information as to the manner in which the principal objects of the persons seeking registration are determined and evaluated.

5. The Committee had requested the Government to amend the law (section 13 of the Trade Unions Act) so as to leave to trade union constitutions and rules the issue of sanctions against trade union members for refusal to participate in a strike. The Committee notes that section 184 of the ERA does not introduce any improvement in this regard. The Committee therefore requests the Government to amend section 184 of the ERA so that the issue of sanctions against trade union members for refusal to participate in a strike can be left up to the trade union constitutions and rules.

6. The Committee had requested that the Government introduce further flexibility into the occupational requirement for participation in trade union elections (section 31(1) of the Trade Unions Act). The Committee notes that section 127 of the ERA maintains that a trade union officer must have been engaged or occupied for a period of not less than six months in an industry, trade or occupation with which the union is directly concerned, with the possible exceptions of the secretary and the treasurer. The Committee requests the Government to amend section 127 of the ERA so as to allow for a certain proportion of the officers to come from outside the particular profession.

7. The Committee had requested the Government to amend the Employment Relations Bill to ensure that a person who is not a citizen of Fiji may be elected as an officer of a trade union. The Committee notes that section 127(d) of the ERA continues to exclude non-citizens from trade union office. The Committee requests the Government to amend section 127(d) of the ERA so as to allow non‑citizens to run for trade union office at least after a reasonable period of residence in the country.

8. The Committee had requested the Government to lift provisions (sections 53(1) and 57 of the Trade Unions Act) which allow the Registrar to examine trade union books at any time, so as to ensure that the power of the Registrar is sufficiently circumscribed (according to the Government, this power is limited to cases where a complaint needs to be investigated or when the annual returns give rise to a consent to inspect trade union accounts). The Committee notes that section 128 of the Employment Relations Act provides that the account books and other related documents must be open to inspection during normal business hours by the Registrar, and that the Registrar may request detailed and certified accounts from the treasurer and also provides for fines or imprisonment in case a person obstructs or impedes the Registrar in carrying out an inspection. These provisions seem to maintain the Registrar’s power to examine trade union books at any time. The Committee requests the Government to amend section 128 of the ERA so as to ensure that the power of the Registrar to examine trade union accounts is explicitly limited to cases where a complaint from a certain percentage of members needs to be investigated or when the annual returns give rise to a manifest need to inspect trade union accounts.

9. The Committee had requested the Government to ensure that provisions which rendered the legality of strike ballots conditional on whether all trade union members actually voted (section 10B(i) of the Trade Unions Regulations) would no longer be enforced after the repeal of the Trade Unions Act. The Committee notes that section 175(3)(b) of the ERA provides that each issue on which a strike mandate is sought must be supported in a strike ballot by more than 50 per cent of all members entitled to vote. The Committee considers that although a ballot requirement does not, in principle, raise problems of compatibility with the Convention, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult, or even impossible in practice. If a member State deems it appropriate to establish in its legislation provisions which require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast and that the required quorum and majority are fixed at a reasonable level (General Survey of 1994 on freedom of association and collective bargaining, paragraph 170). The Committee therefore requests the Government to amend section 175(3)(b) of the ERA so as to ensure that during strike ballots, account is taken only of the votes cast.

10. The Committee had requested the Government to ensure that responsibility for declaring a strike illegal does not lie with the Government but with an independent body which has the confidence of the parties involved (sections 8–10A of the Trade Disputes Act). The Committee notes that, according to the ICFTU, the Government consistently declares all strikes illegal while the Government considers that this is the case only when legal requirements are not met. The Committee notes that, under section 180 of the ERA, responsibility for declaring a strike illegal continues to lie with the Minister. The Committee requests the Government to amend section 180 of the ERA so that responsibility for declaring a strike illegal rests with an independent body which has the confidence of the parties involved.

11. The Committee had requested the Government to limit the possibility of imposing compulsory arbitration to cases where this is compatible with the Convention (i.e. agreement of the parties, essential services in the strict sense of the term and public servants exercising authority in the name of the State). The Committee notes that sections 169 and 170 of the ERA appear to enable each party to an interests dispute to report it to the Permanent Secretary who must refer it to mediation; sections 170(5) and 194(5) appear to give the Mediator the authority to refer disputes to the Employment Tribunal for final determination, if the mediation fails; under section 177(c) disputes reported in this manner cannot be subject to a lawful strike. Moreover, sections 181(c) and 191(1)(c) of the ERA enable the Minister to apply to the Court for an injunction to discontinue a strike if he/she is satisfied that the strike is not in the public interest or will jeopardize or is likely to jeopardize, inter alia, the economy. The Committee recalls that compulsory arbitration to end a strike is acceptable under the Convention only where it takes place, at the request of both parties to a dispute, or in essential services in the strict sense of the term or for public servants exercising authority in the name of the State. The Committee requests the Government to amend sections 169, 170, 181(c) and 191(1)(c) of the ERA so as to ensure that compulsory arbitration can only be imposed in the abovementioned cases.

12. The Committee notes that in its comments, the ICFTU refers to doubts expressed as to the neutrality of the Permanent Arbitrator, an allegation rejected as absurd by the Government, which indicates that there is a possibility to seek judicial review before the High Court in case a ruling by the Arbitrator can be shown to be biased. The Committee notes in this regard that, according to section 204 of the ERA, the Employment Tribunal is composed of a Chief Tribunal appointed by the Judicial Service Commission, and other members who are appointed by the Minister without any specific criteria set for this purpose in the Act, for a term not exceeding three years which can be renewed (section 206). The Committee considers that in mediation and arbitration proceedings, it is essential that all the members of the bodies entrusted with such functions should not only be strictly impartial but, if the confidence of both sides, on which the successful outcome even of compulsory arbitration really depends, is to be gained and maintained, they should also appear to be impartial both to the employers and to the workers concerned. It therefore requests the Government to amend sections 204, 206 and 207 of the ERA in a way which reinforces the independence of the members of the Employment Tribunal, vis-à-vis, the Minister as the appointing authority.

13. The Committee had asked the Government to ensure that prison sentences in the case of strike action are only imposed for penal violations, are justified by the seriousness of the offences committed and are accompanied by sufficient judicial safeguards (section 10A(b) of the Trade Unions Regulations). The Committee observes that sections 250 and 256(a) of the ERA continue to provide for a possible penalty of imprisonment in case of the staging of an unlawful strike. The Committee requests the Government to amend section 256(a) of the ERA so that prison sentences in the case of strike action may be imposed only for penal violations, are justified by the seriousness of the offences committed and are accompanied by sufficient judicial safeguards.

14. Finally, noting that in its previous comments, the Committee had asked the Government to transmit the text of the Industrial Associations Act which regulates employers’ organizations, and that the Government’s report does not contain any information in this respect, the Committee once again reiterates this request.