2008 Annual Survey of violations of trade union rights - Fiji
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Fiji, 20 November 2008, available at: http://www.refworld.org/docid/4c52ca9128.html [accessed 14 March 2014]|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
The provisional government formed following the military coup in 2006 is still in power, but new labour legislation provides for greater respect of trade union rights.
Trade union rights in law
Freedom of association: Under the Fiji Constitution, workers have freedom of association, but legislation provides for the possibility of applying restrictions in the public interest or to protect national security. Workers have the right to form and join trade unions as well as to organise and bargain collectively. They also have the right to fair working conditions, including decent treatment, although this right can also be restricted by law.
In October 2007, after ten years of campaigning by the unions, the new Employment Relations Promulgation No.36" (ERP) came into force, thus revoking the previously applicable Trade Union Act, Employment Relations Act, Trade Union Recognition Act and Employment Act. The new bill has the force of law but cannot, properly speaking, be called a law since it was enacted under a military regime.
Prohibition on forming trade unions: The ERP does not apply to military personnel, the police force and prison service personnel, who therefore do not have the right to form or join a union of their choice.
Registration of unions: The new Act seems to have solved the problems previously associated with the registration of unions. Application for registration is now mandatory and, in order to avoid excessive delays, the new regulations provide for a maximum period of 21 days between receipt of the application for registration and the decision of the Ministry of Labour. The Registrar's discretionary powers to reject the merger of unions have been limited to those cases where the proposed rules for the merger contravene the provisions of the ERP or where one of the union's aims is unlawful. The Registrar retains the power to refuse to register a union with an inappropriate name. The ILO Committee of Experts requested the Fiji government to establish appropriate protective measures to prevent undue interference from the Registrar. Trade unions now have the right to appeal to the Employment Relations Tribunal against the decisions of the Registrar.
The right to strike: The right to strike is recognised for all matters except those relating to trade union recognition. Under the ERP, the conditions governing the right to strike remain unchanged in relation to previous legislation, and unions are required to give 21 days' notice to the Registrar of Trade Unions (who reports to the Minister of Labour) before putting a strike to the ballot. The strike is allowed if more than 50 per cent of the paid-up members vote in favour. This applies to all unions, in both "essential" and "non-essential" industries. With respect to "essential" industries, however, a further 28 days' notice must be given to the Registrar, and organisers must provide the Ministry of Labour with information concerning the date, time and location of the strike, together with a list of participants. The requirement that more than 50 per cent of the paid-up members vote in favour of the strike is too restrictive and is a substantial obstacle to the exercise of the right to strike. The ILO Committee of Experts requested the government to modify this requirement so that only the votes cast in the strike ballot have to be taken into account. The list of "essential" industries has been reduced and is now broadly in line with the terms of ILO Convention 87.
Ministerial powers: The Minister of Labour has the right to declare existing or proposed strikes unlawful. If he or she does so, the dispute is referred to a Permanent Arbitrator and workers are obliged to return to the workplace. This power to declare a strike unlawful effectively enables the government to restrict the exercise of the right to strike. Trade unionists can face criminal charges and risk imprisonment if they persist with strike action. There is no adequate judicial protection to prevent abuses and the imposition of disproportionate penalties on trade unionists.
Compulsory arbitration: The ERP establishes that all parties to an industrial dispute may bring the dispute before a Permanent Secretary, who must refer the dispute for mediation. If mediation is unsuccessful, the authorities may refer the case in turn to a Labour Court, which will have the last word. These apparently unlimited powers run counter to ILO Convention 87, which only allows mandatory arbitration to end a strike in very limited circumstances or with the agreement of both parties.
Lack of protection in law: There are no provisions requiring the reinstatement of workers who have been sacked for carrying out trade union activities, nor are there provisions prohibiting employers from hiring strike breakers.
Trade union rights in practice and Violations in 2007
Background: The state of emergency imposed from December 2006 to May 2007 as well as in September 2007 severely limited freedom of association and freedom of expression. Human rights campaigners suffered intimidation at the hands of the army and sometimes had their freedom of movement restricted. The army has held on to power since the coup in December 2006. The Fiji Trades Union Congress (FTUC) continued its efforts to re-establish democracy.
Unions face major difficulties in organising workers in the export processing zones (EPZs) and migrant workers: The FTUC highlights the fact that many different means are still used to discourage workers in EPZs from forming unions and that fear of reprisals from the employers is making it very difficult to organise the workers in these areas. The FTUC reports similar difficulties in organising workers brought to Fiji by their employers, as well as restrictions on the freedom of association of "executive" staff.
Obstacles to collective bargaining: According to the FTUC, even though the right to collective bargaining is recognised in law, the employers make every effort to offer new employees seemingly advantageous employment terms, particularly in the case of highly qualified and graduate staff, in order to promote individual employment contracts.
Police disrupts trade union meeting: In March, using the state of emergency rules, the police disrupted the annual meeting of the National Union of Public Workers and briefly detained its general secretary and its lawyer.
Several strikes in 2007: Several strikes took place in 2007, including those by teachers, nurses and other public sector employees who demanded the implementation of salary increases that had been promised by the government in 2006 and revoked by the new regime after the coup. The provisional government accused the strikers of pursuing a political agenda that undermined its policies. Permission to hold several demonstrations linked to the strikes was denied, and the police broke up several strike pickets. The Health Minister of the provisional government tried to recruit retired nurses to replace those on strike. The strike lasted 16 days.