Definitive Report - Report No 187, November 1978

Case No 892 (Fiji) - Complaint date: 19-OCT-77 - Closed

1. 280. The complaint of the World Federation of Trade Unions (WFTU) was contained in a communication dated 19 October 1977, and the complaint of the International Transport Workers' Federation (ITF) in a communication dated 3 February 1978. These communications were transmitted to the Government which forwarded its observations in three communications dated respectively 9 March, 5 April and 3 May 1978.
2. 281. Fiji has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
3. 282. The allegations made by the WFTU related to the arrest of a trade union leader; those made by the ITF related to the deregistration of the Fiji Waterside Workers' and Seamen's Union.

A. Allegations relating to the arrest of a trade union leader

1. 283. The WFTU, in its communication dated 10 October 1977, alleged that the President of the Fiji Council of Trade Unions (and a member of the General Council of the WFTU), Mr. Apisai Tora, had been arrested and sentenced to imprisonment for one year for his participation in a strike which had been organised to support the legitimate claims of the workers.
2. 284. In its reply the Director of Public Prosecutions, replying on behalf of the Government, first points out that the Constitution of Fiji contains a Bill of Rights protecting the fundamental rights and freedoms of the individual in accordance with the Universal Declaration of Human Rights, in particular the right to personal liberty and the right of freedom of assembly and association.
3. 285. Along with its reply the Government transmitted extracts of the proceedings in the case of Mr. Tora in the Magistrate's Court and in the Supreme Court, to which Mr. Tora appealed against the sentence imposed by the magistrate. The Government added that Mr. Tora was tried before the ordinary courts in accordance with the procedure set out in the Criminal Procedure Code, with all the normal rules of evidence. Mr. Tora was defended by a senior counsel and the sentence passed on him was provided for in the Sugar Industry Act under which he was prosecuted.
4. 286. Mr. Tora, continued the Government, had now appealed against the decision of the Supreme Court to the Fiji Court of Appeal. Pending the hearing before the Court of Appeal, he had been granted bail.
5. 287. As regards the work stoppage which led to the arrest and imprisonment of Mr. Tora, the Committee notes that the sugar industry in Fiji is considered vital to the national economy anal the production of sugar is regulated by special enactments which include provisions determining the procedures to be followed in the case of a trade dispute. Breach of these provisions constitutes a criminal offence and entails severe penal sanctions. It was on account of his failure to comply with the legal provisions in force for the sugar industry that Mr. Tora was arrested and subsequently tried and convicted.
6. 288. The Committee has recognised in a number of cases that prior notification of strike action to the administrative authority, and provision for compulsory conciliation and arbitration in industrial disputes before Calling a strike are provided for in the laws and regulations of a substantial number of countries, and that reasonable provisions of this type cannot be regarded as an infringement of freedom of association. In addition, the Committee has agreed that the right to strike may be prohibited in the civil service or in essential services because a strike there could cause serious hardship to the national community. It also considered that it appears impossible for large strikes to take place in undertakings constituting key sectors in the life of a country without such hardship arising.
7. 289. Because of the fact that the detention of trade unionists may involve serious interference with trade union rights, and because of the importance which it attaches to the principle of fair trial, the Committee has pressed governments to bring detainees to trial in all cases, irrespective of the reasons put forward for the detention. In addition, the Committee has insisted upon the importance that should be attached to the principle of prompt and fair trial by an independent and impartial judiciary in all cases, including cases in which trade unionists are charged with political or criminal offences which the government considers have no relation to their trade union activities.
8. 290. In the case of Mr. Tora, the Committee notes from the court judgements that have been transmitted to it that he was charged with interfering with sugar production other than during the existence of a dispute duly notified by the Independent Chairman of the sugar industry in that he, on 4 August 1977, at Lautoka Mill of the Fiji Sugar Corporation, hindered the making of sugar, contrary to section 15(1) of the Sugar Industry ordinance, Cap. 180 (as amended by section 4 of the Sugar Industry (Amendment) Act No. 35 of 1969). Mr. Tora was found guilty of causing a work stoppage of union workers at the Lautoka Mill in contravention of the provisions of these enactments.
9. 291. The complaint against Mr. Tora was made by the Prosecuting officer with the consent of the Director of Public Prosecutions as required under the Sugar Industry Act. On this complaint the magistrate issued a warrant for the arrest of Mr. Tora who was thereafter brought before the magistrate and remanded in custody. Bail, having first been refused, was granted on 8 August 1977.
10. 292. As regards the legal proceedings instituted against Mr. Tora the Committee notes that there was no delay in bringing him to trial since both the trial by the Magistrate's Court and the appeal to the Supreme Court were disposed of before the end of December 1977. In addition, Mr. Tora was at all times represented by counsel and has been able to present a further appeal to the Fiji Court of Appeal.
11. 293. In the circumstances the Committee considers that the arrest and detention of Mr. Tora following upon regular court proceedings did not constitute a breach of the principles set out in para. 10 above concerning the right to a fair trial by an independent and impartial judiciary.

B. Allegations relating to the deregistration of the Fiji Waterside Workers' and Seamen's Union

1. 294. The ITF in its communication dated 3 February 1978, alleged that its affiliate, the Fiji Waterside Workers' and Seamen's Union, had been deregistered on the grounds that it had failed to meet government requirements in respect of its financial records. The ITF continued that the Government itself had made it impossible for the union to rectify any faults by impounding the union's accounts. These accounts, according to the complainant organisation, were still being held by the police and the union officials were refused access to them.
2. 295. The Registrar-General, replying on behalf of the Government, states that the Registrar of Trade Unions is solely responsible for the implementation of the provisions of the Trade Unions Act, subject to the statutory requirement that, in all matters concerning either the proposed suspension or deregistration of any union, the Registrar is bound to consult with the Trade Union's Advisory Committee which is composed of independent members, including trade union representatives, but excluding any government representatives. Whilst the Registrar is not bound by any advice rendered by the Committee, continues the Registrar-General, in the present case the advice given by the Committee at the respective stages approved the steps proposed by him.
3. 296. The Registrar-General continues that any union has the right to appeal to the Supreme Court and, in the present case, the Fiji Waterside Workers' and Seamen's Union had made such an appeal, which was heard on 3 March 1978. By a communication dated 3 May 1978 the Registrar-General transmitted the text of the judgement of the Supreme Court of Fiji in respect of the appeal.

C. C. The Committee's conclusions

1. 297. The Committee notes the information supplied by the Government as regards the deregistration of the Fiji Waterside workers' and Seamen's Union, and, is particular, the judgement of the supreme Court of Fiji dismissing the appeal made by the union against the decision to deregister. From this judgement the Committee notes that the decision to deregister was taken on account of the union's failure to comply with the provisions of the legislation regarding the keeping of accounts, financial records, etc.
2. 298. In this connection, the Committee has drawn attention to the importance which it attaches to the principle that workers' organisations should not be liable to be dissolved or suspended by administrative authority. Furthermore, the Committee has pointed out that if this principle is to be properly applied, it is not sufficient for the law to grant a right of appeal to the judiciary against such decisions, but the latter should not take effect until the statutory period for lodging an appeal or until the confirmation of such decisions by a judicial authority. However, even the procedure of appeal to the courts does not always constitute a sufficient guarantee. As the Committee has pointed out, if the administrative authorities have a discretionary power in taking their decisions, the judges hearing an appeal could only ensure that the legislation has been correctly applied. It is important, therefore, that the judges should be able to deal with the substance of the case and to examine the grounds on which the suspension or dissolution of an organisation was declared.
3. 299. The Committee notes that the Trade Unions Act empowers the Registrar, in certain circumstances, to give one month's notice to a union of his intention to suspend its registration (s.14(4)). The union concerned has one month within which to show cause in writing against the proposal to suspend registration. It is mandatory under the Act for the Registrar to restore or cancel the registration within four months from the date of suspension. The decisions of the Registrar to suspend or cancel the registration of a union appear to be immediately effective. From the court judgement supplied the Committee notes that the court, in reaching its decision to dismiss the appeal, was able to examine the substance of the case as regards the various grounds on which the appeal was based.
4. 300. In drawing the attention of the Government to the principles set out in paragraph 298 above concerning, in particular, the time when administrative decisions to suspend or cancel registration should become effective, the Committee recommends the Governing Body to decide that this aspect of the case does not call for further examination.

The Committee's recommendations

1. 301. In these circumstances, and with regard to the case as a whole, the Committee recommends the Governing Body:
   • (a) to draw attention to the principles set forth in paragraph 288 above concerning the exercise of the right to strike;
   • (b) as regards the arrest and detention of Mr. Tora to decide, in the light of the considerations set forth in paragraphs 290293 above, that there was no breach of the principles set out in paragraph 289 concerning the right to a fair trial by an independent and impartial judiciary;
   • (c) as regards the deregistration of the Fiji Waterside Workers' and Seamen's Union, to draw the attention of the Government to the principles contained in paragraph 298 above concerning, in particular, the time when administrative decisions to suspend or cancel registration should become effective; and to decide that this aspect of the case does not call for further examination.