Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) in communications dated 29 August 2008 and 4 September 2009 concerning issues already raised by the Committee, as well as allegations of police disruption of the National Union of Public Workers annual meeting and of the brief detention of its general secretary and his lawyer. The Committee recalls, in this regard, that recourse to force during trade union activities is unjustified, unless it is absolutely necessary, and that the arrest and detention of trade union leaders, without any charges being brought and without a warrant, constitutes a grave violation of the principle of freedom of association. The Committee requests the Government to submit its observations on the ITUC’s comments.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish organizations. The Committee had previously requested the Government to amend section 3(2) of the Employment Relations Act No. 36 of 2007 (ERA) so that prison guards enjoy the right to establish and join organizations of their own choosing. In this respect, the Committee notes that the Government reiterates that the prisons and correction services are governed by separate legislation but that they enjoy similar privileges in regard to terms and conditions of employment except for the right to strike or access to the institutions under the ERA, and that on 29 November 2006, the Parliament had committed to undertake a revision of section 3 of the ERA to also include the correctional authorities (including workers in the prisons and correction services). The Committee must once again recall that the only admissible exceptions to the right to organize are those explicitly provided for under Article 9 of the Convention, i.e. the armed forces and the police. All other categories of workers, without distinction whatsoever, should enjoy the right to establish and join organizations of their own choosing. The Committee considers that the functions exercised by prison guards are different from the regular functions of the army and the police and do not justify their exclusion from the right to organize (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 56). The Committee hopes that, under the revision of section 3(2) of the ERA, prison guards will enjoy the right to establish and join organizations of their own choosing and requests the Government to indicate the progress made in that regard in its next report.

Right to join organizations of their own choosing. In its previous comments, the Committee had requested the Government to amend section 119(2) of the ERA, in order to enable workers exercising more than one occupational activity in different occupations or sectors to join the corresponding trade unions as full members. While noting the Government’s statement that it is almost unknown for a worker to have two jobs in Fiji and that it considers multi-union membership as a luxury, the Committee considers that demanding that workers belong to no more than one union in order to sign an application for registration may unduly infringe upon the right of workers to join organizations of their choosing. Accordingly, the Committee once again requests the Government to take measures 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 corresponding trade unions.

Right of workers and employers to establish organizations without previous authorization. Previously, the Committee had asked the Government to amend section 122(1)(c) of the ERA, which grants the Registrar the power to determine whether a trade union name is “undesirable” and refuse the organization’s registration until an alteration has been made. In this respect the Committee notes with regret the Government’s statement that it is appropriate for the Registrar to hold and wield these general discretionary powers as the adoption of appropriate names has always been the source of conflicts and social unrest. The Committee recalls once again that the term “undesirable” is too general and establishes a genuinely discretionary power in the Registrar. The Committee once again requests the Government to take measures to amend section 122(1)(c) of the ERA so as to establish safeguards against interference by the Registrar.

The Committee had previously requested the Government to provide information as to the manner in which the principal objectives of the persons seeking registration were determined and evaluated by the Registrar, who under section 125(1)(a) of the ERA may refuse registration if the principal objectives of the persons seeking registration are not in accordance with those set out in the definition of a trade union. The Committee takes note of the Government’s answer that the Registrar exercises his discretion and that the factors used by the Registrar are whether the applicants are genuine in their application for the purposes of collective bargaining as an extension of social dialogue to improve terms and conditions of employment or a mere formality. The Committee considers, in this respect, that section 125(1)(a) of the ERA confers upon the authorities wide discretionary powers in deciding whether or not an organization meets all the conditions for registration. In these circumstances, the Committee requests the Government to take measures to amend section 125(1)(a) of the ERA, by ensuring, for instance, that refusals to register an organization under the said section are determined on the basis of objective criteria.

Article 3. Right to draw up constitutions and rules. In its previous comments, the Committee had requested the Government to amend section 184 of the ERA, which entitled the courts to decide the sanctions against trade union members for refusal to participate in a strike, so as to grant this power to the trade unions themselves. The Committee takes note of the Government’s statement that the Committee’s comments will be taken to social partners through the Employment Relations Advisory Board for deliberation. In these circumstances, the Committee expresses the hope that section 184 of the ERA will soon be amended so that the issue of sanctions against trade union members for refusal to participate in a strike can be left to trade union constitutions and rules and requests the Government to indicate the results of the Employment Relations Advisory Board’s deliberations.

Right to elect workers’ and employers’ representatives in full freedom. Previously, the Committee had requested the Government to amend section 127 of the ERA, which provides that officers of a registered trade union 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 and 127(d) of the ERA, which forbids non citizens of the Fiji Islands to be trade union officers. The Committee takes note of the Government’s statement that the Committee’s comments will be taken to the social partners through the Employment Relations Advisory Board for deliberation. The Committee recalls that provisions of this type infringe the organization’s right to elect representatives in full freedom by preventing qualified persons from carrying out union duties or by depriving unions of the benefit of the experience of certain officers (see General Survey, op. cit., paragraph 117). The Committee expresses the hope that section 127 of the ERA will soon be amended so as to allow for a certain proportion of the officers to come from outside the particular profession, and to allow non-citizens to run for trade union office at least after a reasonable period of residence in the country. It further requests the Government to indicate the outcome of the Board’s deliberations with respect to sections 127 and 127(d) of the ERA.

Right of workers’ and employers’ organizations to organize their administration. The Committee had previously requested the Government to amend section 128 of the ERA, which 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. The Committee takes note of the Government’s statement that the obligation for submission of annual returns has been put back by five months and that, furthermore, the Registrar only intervenes when a complaint has been lodged. However, the Committee must recall that a provision which grants authorities the power to examine the books of an organization at any time, unless there is a complaint from a certain percentage of the trade union members, infringes the Convention (see General Survey, op. cit., paragraph 125). Accordingly, the Committee once again requests the Government to take measures 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.

Secret ballot. The Committee recalls that it had previously requested the Government to amend section 175(3)(b) of the ERA, which 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 notes the Government’s indication that the situation in Fiji is such that allegiance to the extended family influences the result of the secret ballot, thus justifying the maintenance of section 175(3)(b) of the ERA. In these circumstances, the Committee must once again recall 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 (see General Survey, op. cit., paragraph 170). In these circumstances, the Committee requests the Government to take measures to amend section 175(3)(b) of the ERA so as to ensure that only a simple majority of the votes cast in a secret ballot is required.

Previously, the Committee had requested the Government to amend section 180 of the ERA, which allowed the Government to declare the illegality of a strike, in order to grant that power to an independent body which has the confidence of the parties involved. It takes note of the Government’s statement that the criteria to determine the legality of a strike are stated by the law, but that the Minister still has a discretionary, but not mandatory, power, after considering other factors, to declare strikes or lockouts unlawful. It further notes that such decision may be appealed to the courts, by means of section 241 of the ERA. The Committee recalls once again that responsibility for declaring a strike illegal should not be with the Government. The Committee once again requests the Government to take the necessary measures to amend section 180 of the ERA, so that responsibility for declaring a strike illegal lies with an independent body which has the confidence of the parties involved.

Compulsory arbitration. The Committee had previously requested the Government to amend sections 169 and 170 of the ERA, which enable each party to a dispute to refer it to the Permanent Secretary, who must refer it to mediation, and sections 181(c) and 191(1)(c) of the ERA, which enable the Minister to apply to the Court for an injunction to discontinue a strike if satisfied that the strike is not in the public interest or will jeopardize or is likely to jeopardize, inter alia, the economy. The Committee takes note of the Government’s statement that the said laws are necessary for the preservation of the fragile economy during industrial disputes. Nevertheless, the Committee must recall once again that a very serious prohibition may also result in practice from the cumulative effect of the provisions relating to collective labour disputes under which, at the request of one of the parties or at the discretion of the public authorities, disputes must be referred to a compulsory arbitration procedure leading to a final award which is binding on the parties concerned. These systems make it possible to prohibit virtually all strikes or to end them quickly: such a prohibition seriously limits the means available to trade unions to further and defend the interests of their members, as well as their right to organize their activities and to formulate their programmes, and is not compatible with Article 3 of the Convention (See General Survey, op. cit., paragraph 153). Accordingly, the Committee once again 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 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.

In its previous comments, the Committee had requested the Government to amend sections 204, 206 and 207 of the ERA, which stated the composition, appointment (seemingly without predetermined criteria), term of office and vacation of members of the Employment Tribunal, so as to reinforce the independence and the appearance of impartiality of its members. It takes note of the Government’s statement that mediators operate under a code of ethics, that their conduct can be reviewed by a judge and that one key criterion for the qualification of members of the Employment Tribunal is the acquisition of a recognized professional mediation accreditation. The Committee notes in this regard that the said code of ethics for mediators sets minimum standards to guide mediators in performing their duties and functions, that it provides that parties should come to a voluntary, uncoerced decision in which each party makes free and informed choices, and that a mediator must conduct mediation in an impartial manner and avoid conduct that gives the appearance of partiality.

Penalties against the staging of an unlawful strike. The Committee had previously requested the Government to amend section 256(a) of the ERA, which, when read with section 250 of the ERA, provides for a possible penalty of imprisonment in case of the staging of an unlawful strike. The Committee notes the Government’s statement in this regard, including that the said clause’s purpose is to encourage good faith in employment relationships, that all prison sentences must be justified, and that all defendants are accorded sufficient judicial safeguards. The Committee recalls that no penal sanction should be imposed against a worker for having carried out a peaceful strike and therefore measures of imprisonment should not be imposed on any account. Such sanctions could be envisaged only where during a strike, violence against persons or property or other serious infringements of rights have been committed, and can be imposed pursuant to legislation punishing such acts. Nevertheless, even in the absence of violence, if the strike modalities had the effect of making the strike illegitimate, proportionate disciplinary sanctions may be imposed against strikers. The Committee therefore once again requests the Government to take measures to amend section 256(a) of the ERA, taking into account the abovementioned principle.