Rapport intérimaire - Rapport No. 370, Octobre 2013

1. 426. The Committee last examined this case at its November 2012 meeting, when it presented an interim report to the Governing Body [365th Report, paras 693–783 approved by the Governing Body at its 316th Session (November 2012)].
2. 427. The complainants submitted new allegations in communications dated 18 and 22 February and 6 September 2013. The Fiji Bank and Finance Sector Employees Union (FBFSEU) has associated itself with the complaint by a communication dated 25 February 2013.
3. 428. Since there has been no reply from the Government, the Committee has been obliged to postpone its examination of the case on two occasions. At its meeting in May–June 2013 [see 368th Report, para. 5], the Committee issued an urgent appeal to the Government indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it could present a report on the substance of the case at its next meeting even if the information or observations requested had not been received in due time. To date, the Government has not sent any information.
4. 429. Fiji has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 430. In its previous examination of the case in November 2012, the Committee made the following recommendations [see 365th Report, para. 783]:
   • (a) Expressing its grave concern that, while the Government had accepted a direct contacts mission to the country in line with its previous recommendation, the ILO Direct Contacts Mission that visited Fiji in September 2012 was not allowed to continue its work and was advised to depart expeditiously so that the Government could welcome a visit under the new terms of reference presented by it, the Committee firmly expects that the Government will rapidly re-establish dialogue in this regard so that the Direct Contacts Mission may return to the country without delay within the framework of the mandate bestowed upon it and report back to the Governing Body.
   • (b) While it understands that Mr Koroi has left the country, the Committee expects that this case will be deliberated by the ERAB without further delay, and that, in the framework of this exercise, the conclusions that the Committee made in this regard when examining this case at its meeting in November 2010 [see 358th Report, paras 550–553] will be duly taken into account, with a view to rehabilitating Mr Koroi and considering his reinstatement should he return to Fiji.
   • (c) Reiterating its deep concern at the numerous acts of assault, harassment and intimidation of trade union leaders and members for their exercise of the right to freedom of association previously alleged by the complainants, the Committee urges the Government, even if the victims have lodged a complaint in the meantime, to conduct ex officio an independent investigation without delay into the alleged acts of assault, harassment and intimidation against: Mr Felix Anthony, National Secretary of the FTUC and General Secretary of the Fiji Sugar Workers; Mr Mohammed Khalil, President of the Fiji Sugar and General Workers Union – Ba Branch; Mr Attar Singh, General Secretary of the FICTU; Mr Taniela Tabu, General Secretary of the Viti National Union of Taukei Workers; and Mr Anand Singh, lawyer. The Committee requests the Government to transmit detailed information with regard to the outcome of such inquiry and the action taken as a result. With particular regard to the allegation that an act of assault against a trade union leader was perpetrated in retaliation for statements made by the FTUC National Secretary at the ILC, the Committee urges the Government to ensure that no trade unionist suffers retaliation for the exercise of freedom of expression. The Committee generally urges the Government to take full account of the relevant principles enounced in its conclusions in the future.
   • (d) The Committee urges the Government to take the necessary measures to ensure that all criminal charges of unlawful assembly brought against Mr Daniel Urai, the FTUC President and NUHCTIE General Secretary, and Mr Nitendra Goundar, a NUHCTIE member, on the grounds of failure to observe the terms of the Public Emergency Regulations are immediately dropped, and to keep it informed of any developments in this regard without delay, including the outcome of the case hearing that the Committee understands was deferred.
   • (e) While welcoming the lifting of the emergency legislation in the form of the PER on 7 January 2012, the Committee, further welcoming the decision to temporarily suspend the application of section 8 of the Public Order Act as amended by the POAD, which placed important restrictions on freedom of assembly, requests the Government to consider abrogation or amendment of the POAD. Stressing that freedom of assembly and freedom of opinion and expression are a sine qua non for the exercise of freedom of association, the Committee once again urges the Government to take full account of the principles enounced in its conclusions in the future and refrain from unduly impeding the lawful exercise of trade union rights in practice. It also requests the Government to reinstate Mr Rajeshwar Singh, FTUC Assistant National Secretary, in his position representing workers’ interests on the ATS Board without delay.
   • (f) Recalling its previous conclusion that the Essential National Industries Decree No. 35 of 2011 and its implementing regulations give rise to serious violations of Conventions Nos 87 and 98 and the principles on freedom of association and collective bargaining, and taking due note of its alleged disastrous effects on the unions concerned, the Committee notes the review by the tripartite ERAB subcommittee of all existing government decrees relating to labour in terms of their conformity with the ILO fundamental Conventions, as well as the subcommittee’s agreement, as reported by the complainant, to delete most of the provisions of the Essential National Industries Decree that were considered as offending. The Committee firmly expects that the measures agreed by the tripartite ERAB subcommittee will be actively pursued and given effect without delay, so as to bring the legislation into conformity with freedom of association and collective bargaining principles, and requests the Government to keep it informed of the progress made in this regard without delay.
   • (g) Noting with interest the adoption of the Public Service (Amendment) Decree No. 36 of 2011 and welcoming the decision recently rendered by the High Court of Fiji and the new internal grievance policy implemented by the PSC, the Committee requests the Government to supply a copy of the High Court decision. It also requests the Government to provide information on the relevant mechanisms currently available to public servants to address individual and collective grievances, and to indicate the results of the review by the tripartite ERAB subcommittee of all existing government decrees relating to the public service in terms of their conformity with the ILO fundamental Conventions.
   • (h) The Committee requests the Government to take the necessary measures to ensure that arrangements are made between the parties to ensure the full reactivation of the check-off facility in the public sector and the relevant sectors considered as “essential national industries”.
   • (i) The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
   • (j) The Committee draws the special attention of the Governing Body to this case because of the extreme seriousness and urgency of the matters dealt with therein.

B. The complainants’ new allegations

1. 431. In communications dated 18 and 22 February 2013, the complainants denounce the issuance on 15 January 2013 of the Political Parties (Registration, Conduct, Funding and Disclosures) Decree (No. 4) as well as its Amendment Decree of 18 February 2013 (No. 11). According to its section 14(1), public officers shall not be eligible to be an applicant or a member of a proposed or registered political party nor to hold office in such political party, shall not engage in political activity that may compromise or be seen to compromise the political neutrality of that person’s office, and shall not publicly indicate support for, or opposition to, any proposed or registered political party. Section 14(2) of the Political Parties Decree defines the term “public officer” as including any person who is holding any office (whether elected or appointed and including any remunerated position or arrangement) in any trade union registered under the Employment Relations Promulgation 2007 or any federation, congress, council or affiliation of trade unions or of employers. Section 14(4) and (5) provides that any public officer who intends to be an applicant or a member of, or hold office in, a proposed or registered political party, must resign from the respective public office or will be deemed to have resigned.
2. 432. In the Fiji Trades Union Congress’ (FTUC) view, the Political Parties Decree, which was issued three days after the FTUC had decided at a special delegates conference to form a political movement, denies trade unionists any political rights (right to be a member of a political party, right to hold office in a political party, right to engage in any political activity and even the right to indicate support or opposition to any political party) and seeks to ensure that trade union representatives are not able to involve themselves in any political activity.
3. 433. In a communication dated 6 September 2013, the International Trade Union Confederation (ITUC) indicates that in July, the Fiji Sugar and General Workers’ Union (FSGWU) filed a legal notice to hold a secret ballot for strike action, as sugar mill workers had not received a pay rise in seven years. Although the Fiji Sugar Corporation (FSC) had refused and continued to refuse to bargain with the union, it announced a unilateral 5.3 per cent wage increase after the strike notice. However, in the complainants’ view, this measure does not begin to address the over 40 per cent decline in real wages for sugar workers over the last seven years. The complainant further alleges that FSC management subsequently held meetings in all work stations to intimidate union members not to vote for a strike and threatened that they would inform the Government as to who had voted despite the threats. As of 23 July 2013, when balloting started, police and military officers were present at polling sites to threaten and intimidate workers. The Attorney-General also issued threats to the union via the press, the latest of which said that the Government would intervene to keep the mills open and running in the case of a strike. By 26 July 2013, balloting had concluded. Despite the intense intimidation, 67.5 per cent of members voted, of which 90 per cent voted in favour of strike action. These results exceed the required 50 per cent of eligible members to vote in favour of strike action. After some delay, the Ministry of Labour registered the results of the vote.
4. 434. The complainant also states that, throughout August 2013, there has been continual intimidation of mill workers by military and/or management (e.g. threats with termination of employment or military camp if the strike was going to take place, distribution of forms to fill in as to intention to go on strike). Furthermore, at the end of August 2013, Felix Anthony was asked by workers to address a lunch break meeting outside the Lautoka Mill but on his arrival, management dispatched security guards (former and current military officers) and disallowed any meeting on the grounds around the mill, although the law allows union officials to enter the workplace so long as work is not disrupted. According to the complainant, management has put substantial pressure on workers by signing up retired workers and casual workers including temporary tradesmen to serve as replacement workers in the case of a strike and by advising that the FSC will recruit workers from other countries to operate the mills when the strike happens. Management continues to refuse to talk to the union despite the legal requirement to negotiate in good faith.
5. 435. Lastly, the complainant alleges that, on 6 September 2013, police arrested over 30 protestors, including political party and trade union leaders, who had assembled outside of the Government House in Suva to denounce the entry into force of the new Constitution. In arresting the peaceful protestors, the Government explained that they did not have the permission of the authorities. This part of the repressive Public Order Amendment Decree was suspended during the constitutional reform process but is apparently once again in force.

C. The Committee’s conclusions

1. 436. The Committee deeply regrets that, despite the time that has elapsed since the last examination of the complaint, the Government has once again not replied to the complainants’ allegations even though it has been requested several times, including through an urgent appeal.
2. 437. Hence, in accordance with the applicable procedural rules [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee is obliged to present a report on the substance of the case without being able to take account of the information which it had hoped to receive from the Government.
3. 438. The Committee reminds the Government that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for this freedom in law and in fact. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments, in turn, will recognize the importance of presenting, for objective examination, detailed replies concerning allegations made against them [see First Report, para. 31].
4. 439. Under these circumstances, recalling that this complaint concerns allegations of several acts of assault, harassment, intimidation and arrest and detention of trade union leaders and members, ongoing interference with internal trade union affairs, the dismissal of a trade union leader in the public service education sector, undue restrictions on trade union meetings and the issuance of several decrees curtailing trade union rights, the Committee finds itself obliged to reiterate the conclusions it made when it examined this case at its meeting in November 2012 [see 365th Report, paras 767–778 and 782]. As regards the Essential National Industries Decree (ENID) in particular, recalling its conclusion that numerous provisions give rise to serious violations of the principles on freedom of association and collective bargaining, the Committee urges the Government to take the necessary steps without delay, in full consultation with the social partners and in accordance with the measures agreed by the tripartite subcommittee of the Employment Relations Advisory Board (ERAB) in 2012, to amend or delete the specific provisions of the ENID previously identified by the Committee as giving rise to serious violations of the principles on freedom of association and collective bargaining, so as to bring the Decree into conformity with Conventions Nos 87 and 98, ratified by Fiji. It requests the Government to keep it informed of the progress made in this regard without delay.
5. 440. As to the decrees relating to the public sector eliminating the access of public service workers to judicial or administrative review, the Committee notes from the information and documentation supplied by the Government that public servants can appeal administrative decisions affecting them individually through the internal grievance procedures available for the public service. While noting that, according to article 164 of the Constitution, the State Services Decree 2009 and the Administration of Justice Decree 2009 are repealed, the Committee notes with regret that sections 23 to 23D of the latter decree, which precisely eliminate the remedy of judicial review for public servants, shall continue to be in force (article 174): The Committee further notes from the High Court judgments supplied by the Government at the request of the Committee that: (i) as regards jurisdiction, it was held on 23 March 2012 that section 23B of the Administration of Justice Decree did not preclude public servants from bringing to court a government decision to terminate their employment (State v. Permanent Secretary for Works, Transport and Public Utilities ex parte Rusiate Tubunaruarua & Ors HBJ01 of 2012); and (ii) the case was dismissed on 22 April 2013 because alternative remedies (for example, internal grievance procedure) had not been used, because the employment was governed by the Terms and Conditions of Employment for Government Wage Earners and remedies therefore pertained to private law, and because the appointing authority was a public body and the case was thus not susceptible to judicial review (HBJ02 of 2012). The Committee requests the Government to take all necessary measures to ensure that public servants have genuine and effective recourse to judicial review of any decisions or actions of government entities, and again requests the Government to provide information on the mechanisms available to public servants to address collective grievances. The Committee also requests the Government to provide practical information on the recourse had by public servants to administrative and judicial review (for example, use, length and outcome of proceedings). Moreover, the Committee once again requests the Government to indicate the results of the review by the ERAB subcommittee of all government decrees relating to the public service in terms of their conformity with the ILO fundamental Conventions.
6. 441. The Committee also notes with deep concern the complainants’ new allegations, in particular that: (i) under the Political Parties Decree, persons holding an office in any workers’ or employers’ organization are banned from membership or office in any political party and any political activity, including merely expressing support; (ii) members of the FSGWU have been threatened and intimidated by the military and management of the government-owned FSC before and during the holding of the strike ballot at the end of July and continue to be intimidated following the successful strike vote; (iii) the management dispatched former military officers and prohibited a union meeting at the end of August upon arrival of Felix Anthony, although the meeting was scheduled during lunch hour and outside the premises of the mill; and (iv) on 6 September 2013, over 30 protestors, including political party and trade union leaders, who had assembled to denounce the entry into force of the new Constitution, were arrested. The Committee urges the Government to provide its observations to these serious allegations without delay. It wishes to generally recall in this regard that a general prohibition on trade unions from engaging in any political activities would not only be incompatible with the principles of freedom of association, but also unrealistic in practice (for example, trade union organizations may wish to express publicly their opinion regarding the Government’s economic and social policy). The Committee also generally reiterates that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected (see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 503 and 44).
7. 442. Taking note of the letter dated 15 October 2013 submitted by the Prime Minister of Fiji in reply to a communication of 3 July 2013 from the ILO Director-General, the Committee strongly regrets that it is still obliged to observe that the ILO direct contacts mission that visited Fiji in September 2012 has still not been allowed to return to the country in line with its previous recommendation and the decisions adopted by the Governing Body. The Committee firmly urges the Government to accept the return of the direct contacts mission without further delay within the framework of the mandate bestowed upon it by the Governing Body based on the Committee’s conclusions and recommendations.
8. 443. Lastly, the Committee observes that a number of Workers’ delegates at the Conference submitted a complaint under article 26 of the ILO Constitution concerning alleged violation by Fiji of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which is pending for consideration by the Governing Body at its current session.