2009 Annual Survey of violations of trade union rights - Fiji
|Publisher||International Trade Union Confederation|
|Publication Date||11 June 2009|
|Cite as||International Trade Union Confederation, 2009 Annual Survey of violations of trade union rights - Fiji, 11 June 2009, available at: http://www.refworld.org/docid/4c52caeec.html [accessed 4 September 2015]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
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 the new labour legislation provides for greater respect of trade union rights.
Trade union rights in law
Freedom of association: Under the Fijian Constitution, workers are entitled to the right of freedom of association. However, it also provides for the possibility of enacting legislation 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.
In October 2007, after ten years of campaigning by the unions, the new "Employment Relations Promulgation 2007" (ERP) came into force. The new Promulgation, which has been gazetted, cannot, properly speaking, be called a law since it was enacted under a military regime. While making progress in some areas, numerous provisions of the ERP are still not in line with conventions 87 and 98.
The ERP appears 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. Seven employees are required to form a union. To obtain recognition from the employer is no longer a requirement. As well, the requirement for recognition of meeting the 50% threshold has been removed. 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.
However, the Registrar retains the discretionary power to refuse to register a union with an inappropriate name or to cancel the registration of a trade union in the cases provided by the law. The ILO Committee of Experts requested the Fijian 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 ERP does not apply to prison and correctional services that should be entitled to the right to organise.
The ERP contains a comprehensive prohibition of acts of anti-union discrimination for all types of trade union activity, at all stages of the employment relationship, including recruitment. The Employment Relations Tribunal and the Employment Relations Court have the power to order remedies including reinstatement, reimbursement and/or compensation for humiliation, loss of benefit or loss of property.
Collective bargaining: The right to collective bargaining is also enshrined in the Fijian Constitution. In addition, the ERP promotes and encourages collective bargaining. It sets a requirement of good faith on the part of both the union and the employer when negotiating a collective agreement.
In 2008, the Employment Relations Advisory Board, a tripartite body, developed a Code of Good Faith to provide guidance on the application of this duty. Tribunals and courts may refer to this Code.
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 need 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.
The Minister of Labour has the right to declare existing or proposed strikes unlawful. If s/he does so, the dispute is referred to a Permanent Arbitrator and workers are obliged to return to the workplace. This power 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.
The ERP maintains the possibility of imposing compulsory arbitration at the request of one of the parties or of the Ministry of Labour when the strike is not considered to be in the public interest or could jeopardise the economy. This runs counter to ILO Convention 87, which only allows compulsory arbitration to end a strike in very limited circumstances or with the agreement of both parties. There are no provisions prohibiting employers from hiring strike breakers.
Trade union rights in practice and violations in 2008
Background: Commodore Frank Bainimarama is running a civilian government with no democratic legitimacy, resulting from a coup d'état. Elections have not been planned yet and there has been a huge outcry from civil society and international organisations regarding the delay. Press freedom is still restricted. The Fiji Trades Union Congress worked with some employers during the year on establishing an effective wage mechanism to cover unorganised and informal economy workers earning poverty wages, but these efforts were hampered.
The political situation in the country and the international economic turmoil strained trade union efforts to tackle labour issues in 2008. The Fiji Trades Union Congress (FTUC) continued its public efforts to re-establish democracy.
Collective bargaining in practice: While the law does not promote individual contracts, in practice they are common. Employers tend to offer advantageous packages to new employees, especially graduates or skilled personnel in key industries, as a means of promoting individual contracts.
Thirty workers sacked after joining a union: At the end of May, the Fiji Times reported that the Building, Construction and Timber Workers Union had filed a complaint with the Ministry of Labour following the dismissal of 30 workers in the company Haroon Holdings after they had joined a union.