2013 Annual Survey of Violations of Trade Union Rights : Countries at Risk - Fiji
|Publisher||International Trade Union Confederation|
|Publication Date||6 June 2013|
|Cite as||International Trade Union Confederation, 2013 Annual Survey of Violations of Trade Union Rights : Countries at Risk - Fiji, 6 June 2013, available at: http://www.refworld.org/docid/51b8518518.html [accessed 27 March 2017]|
|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.|
In December 2006, Commodore Frank Bainimarama came to power through a military coup. Since then, the military has imposed laws by executive decree that have stripped the citizens of Fiji of their basic human rights. One such law includes the widely-condemned Public Emergency Regulations (PER) of 2009, which severely limited rights of speech and assembly and gave the police broad powers to arrest and detain. These decrees typically included a provision exempting them from judicial review. In 2011, the regime took direct aim at the trade union movement both through the use of force and decrees that eliminated or severely weakened fundamental labour rights.
PHYSICAL ATTACKS AND ARRESTS
In 2011, the regime selectively denied requests for meetings, arguing that the convenors were opposed to government policy. In other cases, the police revoked previously-awarded permission and then broke up the meetings. In the most extreme case, FTUC President Daniel Urai and also Nitin Goundar were arrested, detained and charged under the PER for meeting with trade unionists, at the hotel where they worked, to prepare for collective bargaining. The case remains pending, though the government has yet to produce the required disclosures – including the identity of the accusers. Moreover, the law has since been repealed (though replaced with one that is arguably worse). Trade unionists have been harassed and prosecuted under the criminal code in addition to under the decrees. Daniel Urai currently faces charges under the criminal code for "Inciting Political Violence by Urging to Overthrow Government." As in his other case, the government has yet to file the necessary disclosures to support its case.
In 2011, Felix Anthony, the national president of the Fiji Sugar and General Workers' Union (FGSWU) and president of the Fiji Trade Union Congress (FTUC), and the president of the Ba Branch of the FSGWU were abducted, threatened and severely beaten by military officers. The ILO expressed its "deep concern at the numerous acts of assault, harassment, intimidation and arrest of trade union leaders and members for their exercise of the right to freedom of association..." In 2012, Mr Anthony filed charges against his attackers, but no action has yet been taken to investigate much less prosecute those responsible.
LABOUR RIGHTS SEVERELY RESTRICTED
The government of Fiji has issued several decrees that sharply curtail fundamental labour rights (and others) in both the public and private sectors. Some of the decrees also eliminate all access to judicial review and redress for past, present and future violations of those rights or to question the legality of the decrees themselves. These sweeping reforms to the labour laws were made without any prior consultation with the relevant trade unions.
These decrees include the Employment Relations Amendment Decree of 2011 and the Essential National Industries Decree (ENID) of 2011. The ENID deemed that all companies in the finance, telecoms, civil aviation and public utilities sectors are "essential". Under the decree, collective bargaining agreements were abrogated, some bargaining units were completely eliminated, as they did not meet new minimum membership requirements (75 members), and new elections were held to create new bargaining units. The law also prohibited in practice pre-existing unions from representing their members in bargaining. These measures, as well as the elimination of dues deductions, struck a severe blow to workers' rights and their institutions. Indeed, the continuing effects of last year's Essential National Industry Decree (ENID) are having a devastating and potentially irreversible impact on workers, who have seen hard-fought-for gains in the workplace stripped away. Unions are also seeing the collapse of their membership base and their finances.
Air transportation in Fiji is dominated by Air Pacific. Leaked documents appear to show that Air Pacific hired a US-based law firm to draft the ENID, which the government subsequently enacted. The Transport Workers Union (TWU), which represented cabin crew, baggage handlers and engineers – essentially everyone but pilots – was hit hard by the ENID. Roughly 90 per cent of its members are employed by Air Pacific. Only the cabin crew collectively numbered more than 75 workers; all other groups failed to meet that threshold and were ineligible to form a new bargaining unit. These workers now have individual contracts that were drafted and imposed by management. Dues deduction was also eliminated. Many of these workers later withdrew their membership to the TWU. With the elimination of the non-cabin crew members, the union lost 50 per cent of its members overnight.
The cabin crew have a bargaining unit, which was voluntarily recognised by management. However, under the ENID, the leaders of the bargaining units, including officer-bearers, officers, representatives and executives, must be employed by the designated corporations they represent. Non-employees, i.e., the professional staff of the union, cannot be involved in negotiations with the bargaining unit. Those that run afoul of this provision face steep civil and penal sanctions – a fine of up to $50,000 or imprisonment of up to five years for individuals and up to $100,000 for the union. Thus TWU cannot be directly involved in the new cabin crew unit. Air Pacific imposed a new collective bargaining agreement (CBA) which diluted the wages and took back previous gains with regard to overtime pay, meal allowances, clothing allowances, annual leave, sick leave, etc. As per the ENID, the CBA allows for grievances only on terminations – management decides all other matters. Many outstanding grievances over discipline and dismissal were extinguished when the ENID entered into force.
The Air Pacific pilots, with 78 members, signed a contract with Air Pacific after lengthy and difficult bargaining. The situation forced the union to accept major concessions in the new agreement. These include reductions in annual leave, sick leave and the elimination of long service leave. The contract also contains deep cuts to travel and meal allowances which reduce significantly the amount pilots are compensated. Of note, the union bargained with the company on the basis of the old numbers that reflected poor profitability. Just after the agreements were signed between Air Pacific and the various bargaining units, Air Pacific announced greatly improved profits for the company for the previous year. The union believes that the timing of the profit results was intentional and that the union was intentionally misled.
SUGAR MILL WORKERS UNION HIT HARD
From 2009-2011, sugar mills were occupied by the military, which assumed control over many aspects of the operations – including human resources. The Fiji Sugar and General Workers Union (FSGWU) reported that the military has the power to fire and discipline workers. The President of the FSGWU – Ba Branch was beaten by military officers on February 18 and on June 22, 2011. In conjunction with the second attack on Mr Khalil, he was suspended from work for two weeks without pay. The military stated that the reason for the transfer was his status as a trade union leader. The president was recently granted asylum in Australia.
On a monthly basis in 2011, the military interrogated the union president, accusing him of sabotaging the Fijian sugar industry. He reported that the soldiers told him that "if you make one wrong move, we will kill you." In November 2011, management told the president that he would no longer recognise him as the representative of the workers. The grievance machinery and progressive discipline machinery in the CBA was completely ignored. Despite annual wage increases provided for in the CBA, Mr Khalil reports that there have been no wage increases for several years. Cases have been filed over dismissals and other breaches of the CBA. However, these cases are slow to be processed, if ever. The Fiji Sugar Corporation, a government entity which owns the mills, has expressed no interest whatsoever in recognising the union or engaging in bargaining.
Fiji sugar is certified as "fair trade" by Fairtrade International.
CIVIL LIBERTIES UNDER ATTACK
The recently adopted Public Order (Amendment) Decree of 2012 is in many respects worse than the Public Emergency Regulations of 2009. On 5 January, Decree 1 of 2012 was promulgated, amending the Public Order Act of 1969. The decree incorporates and expands many of the powers found in the PER. It creates an expansive definition of "terrorism", with severe penalties, which could be interpreted to cover just about any organised opposition to the military regime. As before, requests for public meetings will need to be approved by the regime, with seven days' notice required to seek permission to hold a meeting. However, the penalties now include a sentence of up to five years in prison (up from two years in the PER) for holding a meeting without permission. The police have the power to arrest people without warrant and hold with charge for up to 16 days (up from 10 under the PER) at the direction of the Prime Minister. Another provision states that anyone who makes statements or takes action that the government believes may "sabotage" or "undermine" the economy could face up to 10 years in prison. Fiji's courts were also divested of jurisdiction to hear any claim challenging any decision by the Prime Minister, police commanders or any public official.
ILO MISSION KICKED OUT OF FIJI
Following the conclusions of the ILO Committee on Freedom of Association (Case No. 2723) as well as the tripartite resolution of the 15th ILO Asia and Pacific Regional Meeting in December 2011, an ILO direct contacts mission was sent to Fiji in September 2012 to verify the trade unions' complaints regarding the lack of freedom of association. However, the mission was prevented from doing its work on the first day. The government then presented the mission with new and unacceptable terms of reference than those that had been agreed to previously by the government. When no agreement was reached, the regime instructed the mission to leave Fiji immediately. The ILO Director General condemned the expulsion of the mission. That November, the ILO Governing Body issued a sternly worded resolution condemning the expulsion and urging the government to allow a mission to return before the next Governing Body Meeting. The regime has so far refused to allow the ILO to return.
UNIONS EXCLUDED FROM POLITICAL PROCESS
In January 2013, the government sought to exclude trade unions from the political process through the promulgation of the Fiji Political Parties Decree. The decree excludes "public officers" from applying for, being a member of, or holding office in a political party. Article 14.2(d) defines "public officer" to include any elected or appointed trade union officer, or officer of any federation, congress, council or affiliation of trade unions. A subsequent amendment to that decree broadened the scope of unionists barred from the political process. Under Art 14.1(c), a trade union official cannot even express support for a political party. If a trade unionist does become an applicant, member or officer, they will be deemed as having resigned from their trade union office under Art 14.5. Anyone defying this decree faces a $50,000 fine, five years imprisonment or both. The decree also requires that existing political parties that fail to successfully reregister under the decree's cumbersome new requirements will have their assets confiscated by the government. To date, none of Fiji's 17 existing parties have been reregistered.
The intention of the decree is clear – it seeks to make as difficult as possible the registration of the new political party, announced at the FTUC's special delegates meeting just days before the decree was issued. While the new party will reflect a broad coalition of civil society, its formation is now led by the trade union movement. It has also led to the de-registration of other, existing opposition political parties led by trade union leaders.
In 2012, the government established an independent expert commission tasked with writing a new draft constitution, taking into consideration views submitted to the commission through hearings and in writing. The commission had received thousands of submissions and released a draft in January 2013. However, the government rejected the draft and destroyed copies which had been prepared by the commission. The promised constituent assembly, which was to review the draft constitution, was never established, in part because the government has refused to recognise any political parties. On March 20, 2013, the Prime Minister issued a new draft constitution. Articles 19 and 20 of the draft, while providing that all persons have the right to associate, to join a union, to bargain collectively and to strike, also includes broad exceptions that could be invoked to vitiate those fundamental rights by new laws or decrees or to justify existing harmful decrees. Notably, the draft constitution prepared by the independent commission called for the repeal of the Essential National Industries Decree. No such recommendation is found here. Article 55 also elevates to constitutional law the Political Parties Decree, including its language regarding trade unions.
In November 2011, the ILO Committee on Freedom of Association issued a strong rebuke of Fiji's failure to respect freedom of association. Further, Director General Juan Somavia personally spoke out on Fiji in a very direct statement, urging the government to change its course immediately. Finally, the United States Trade Representative (USTR) accepted for review in July 2012 a petition under the Generalized System of Preferences (GSP) regarding Fiji's alleged failure to take steps to afford internationally recognised workers' rights based on these facts.
What needs to happen in 2013?
ILO mission must return to Fiji.
Charges against trade union leaders must be dropped, and attacks against them must be investigated and punished.
The labour laws must be brought into conformity with ILO standards.