Effect given to the recommendations of the committee and the Governing Body - Report No 381, March 2017

Case No 2723 (Fiji) - Complaint date: 01-JUL-09 - Follow-up

Effect given to the recommendations of the Committee and the Governing Body

1. 36. The Committee last examined this case at its May 2016 meeting [see 378th Report, paras 244–271] when it made the following recommendations [see 378th Report, para. 271]:
   • (a) Warmly welcoming the signature of the Joint Implementation Report (JIR) of 29 January 2016 signed in the wake of the ILO tripartite mission, as well as the adoption on 10 February 2016 of the Employment Relations (Amendment) Act of 2016 introducing the changes agreed to in the JIR, the Committee is pleased to note the progress which has given rise to the Governing Body decision that the article 26 complaint would not be referred to a commission of inquiry, and that the procedure be closed. The Committee requests the Government to keep it informed of the developments in relation to the follow-up given to the JIR and the 2016 ERP amendment.
   • (b) Welcoming that in the JIR the parties have reached agreement on the restoration of check off facilities, the Committee also urges the Government once again to ensure that swift 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”.
   • (c) The Committee asks the Office to provide as soon as possible the requested technical assistance in respect of the list of essential services and industries, and requests the Government to keep it informed of any developments in this regard.
   • (d) With respect to the alleged acts of assault, harassment and intimidation of trade union leaders and members for their exercise of the right to freedom of association, the Committee requests the FTUC to provide information on the developments reported by the Government, failing which it will no longer pursue the examination of these allegations with respect to Mr Anthony. The Committee also requests the complainants to furnish further information on the alleged acts of assault, harassment and intimidation against Mr Attar Singh (General Secretary of the FICTU), Mr Mohammed Khalil (President of the Fiji Sugar and General Workers’ Union (FSGWU) – Ba Branch General), Mr Taniela Tabu (Secretary of the Viti National Union of Taukei Workers) and Mr Anand Singh (lawyer), should there be pending issues in this regard.
   • (e) With respect to the criminal charges related to the exercise of trade union activity brought against Mr Daniel Urai, FTUC President and General Secretary of the National Union of Hospitality, Catering and Tourism Industries Employees (NUHCTIE), the Committee, pleased to note that the sedition charges brought against him and another person four years ago had been dropped, once again urges the Government, as regards the remaining criminal charges of unlawful assembly on the grounds of failure to observe the terms of the PER, to take the necessary measures to ensure that these charges are also immediately dropped, and requests the Government once again to indicate whether there are any charges still pending against Mr Nitendra Goundar, a NUHCTIE member.
   • (f) Welcoming the repeal of the ENID by the 2015 amendment of the ERP and highlighting the need to remedy the persisting negative impact of the ENID after its repeal, the Committee recalls its previous conclusions that the abrogation by the ENID of the collective agreements in force is contrary to Article 4 of Convention No. 98 concerning the encouragement and promotion of collective bargaining, and requests the Government to devise ways as to how to address the issue, and to keep it informed in this respect.
   • (g) The Committee once again requests the Government to consider abrogation or amendment of the POAD so as not to place unjustified restrictions on freedom of assembly. Furthermore, it again requests the Government to reinstate Mr Rajeshwar Singh, FTUC Assistant National Secretary, in his position representing workers’ interests on the ATS Board without delay, should this not yet be the case.
   • (h) The Committee requests the Government to take measures to review section 14 of the Political Parties Decree in consultation with the representative national workers’ and employers’ organizations with a view to its amendment so as to ensure respect for the principles enunciated in its conclusions.
   • (i) The Committee reiterates its expectation that, after seven years, the case of Tevita Koroi 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.
   • (j) The Committee requests the Government to provide without delay its observations to the remaining allegations of the complainants, specified in its conclusions, and invites the complainants to furnish further information on the status of these matters.
   • (k) The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
2. 37. The Fiji Islands Council of Trade Unions (FICTU) provides additional information in a communication dated 23 September 2016. In particular, the FICTU alleges that: (i) on 10 September 2016, the police approached Attar Singh, the General Secretary of the FICTU, at his home and asked him to accompany them to the Central Police Station in Suva; (ii) Mr Singh was informed that the police were from the criminal investigations department and were effecting an arrest regarding his attendance at an unlawful meeting which discussed the 2013 Constitution at the Presbyterian Church Hall in Suva; (iii) Mr Singh was interrogated from 1 p.m. to 5 p.m. on 10 September 2016, locked up overnight in a police cell and interrogated again the following day, with breaks, until 7.30 p.m., when he was released and told the file was being forwarded to the Director of Public Prosecutions who would decide on the charges to be laid; (iv) others were also locked up and interrogated for the same reasons: Sitiveni Rabuka and Mahendra Chaudhry (former Prime Ministers), Professor Biman Prasad (leader of the National Federation Party), Dr Tupeni Baba (an academic) and Jone Dakuvula (Chairperson of Pacific Dialogue, the non governmental organization which held the meeting). The complainant further alleges that the Government has not taken any attempt to act on the Committee’s recommendation to abrogate or amend the Public Order (Amendment) Decree No. 1 of 2012 (POAD) but instead renewed its enforcement. The complainant also denounces that a permit issued to a non-governmental organization to discuss reforms in the sugar industry prohibits defamatory and provocative language, which may be considered as new levels of restrictions intended to curtail free expression and discussions. The complainant, therefore, requests the Government to remove all restrictions on peaceful assembly, free association and free speech, not to lay criminal charges on any of the persons questioned in relation to the September 2016 meeting and not to enforce the POAD. In its communication dated 25 October 2016, the FICTU provides a press release of the Director of Public Prosecutions, in which he indicates that there was insufficient evidence to sustain the charges of breach of the Public Order Act against the persons arrested.
3. 38. The Government provides its observations in communications dated 1 June, 30 August and 20 October 2016 and 10 January 2017. The Government indicates, with regard to the follow up given to the Joint Implementation Report (JIR) and the 2016 amendment of the Employment Relations Promulgation (ERP) (recommendation (a)), that: (i) it is committed to implementing the JIR; (ii) the expanded Employment Relations Advisory Board (ERAB), a forum that allows for the maintenance of social dialogue and the implementation of real change and labour reform, has committed to meeting monthly to continue reviewing labour laws, including the ERP Matrix, to ensure their compliance with the ILO Conventions ratified by Fiji; (iii) the ERAB met three times between July and October 2016 and sought technical assistance and advice from the Office in order to examine opportunities to promote better labour relations in Fiji; (iv) the reinstatement of individual grievances terminated by the Essential National Industries (Employment) Decree, 2011 (ENID) is dealt with by the Arbitration Court which, as an independent institution, can determine the manner in which the reinstated grievances will proceed; as of June 2016, 186 cases of reinstated individual grievances have been sent to the Arbitration Court for adjudication; (v) in line with the 2016 amendment to the ERP, which provides for the establishment of enterprise unions, 29 enterprise unions or in-house unions were registered; (vi) the provision of the 2016 ERP amendment that enables employees terminated during the operation of the ENID to seek compensation from the Arbitration Court represents a significant achievement and concession by the social partners, as it allows individuals whose employment was terminated to receive compensation without the need to undergo a stringent court process on proof; furthermore, the period of 28 days to request such compensation has been extended by further three weeks and a user-friendly form was provided to be filled by the applicants and it can be submitted at any court registry around the country; (vii) since the repeal of the ENID, workers in the public sector can raise their grievances individually or collectively through the Employment Relations Tribunal and Employment Relations Court, and the Arbitration Court (to date, 21 cases have been filed by government employees); and (viii) the reinstatement of civil service grievances terminated under the Employment Relations (Amendment) Decree No. 21 of 2011 (Decree No. 21) was discussed at the ERAB and, as a result of these discussions, such grievances will be deliberated by the Arbitration Court.
4. 39. The Government further states that the Ministry of Finance, the Ministry of Public Enterprises and the Ministry of Local Government, Housing and Environment issued circulars in April 2015 and January and March 2016 to implement the Government’s decision to restore the check-off facilities in the public sector. Accordingly, Government employees who wish to, can have their trade union fees deducted directly from their salary or wage and sent to the trade union. As regards recommendation (c), the Government specifies that the ERAB has sought assistance and expertise from the Office to assist it to consider, gauge and determine the list of essential services and industries now existing under the law and will deliberate on the response from the Office, as per its mandate.
5. 40. Concerning the allegations of physical attacks, intimidation, threats and assaults against trade union leaders and members for their exercise of the right to freedom of association, the Government indicates that all incidents of criminal offences are independently and thoroughly investigated upon lodging a complaint with the police department or the Office of the Director of Public Prosecutions but that no such complaints were filed by Mohammed Khalil (General Secretary of the Fiji Sugar Workers’ Union – Ba Branch), Attar Singh (General Secretary of the FICTU), Tanial Tabu (General Secretary of the Viti National Union of Taukei Workers) or Anand Singh (lawyer) and no investigations were thus conducted in this regard.
6. 41. With regard to the pending criminal charges filed against Daniel Urai and Nitendra Goundar, the Government reiterates that: (i) Mr Urai and Mr Goundar were charged for the offence of unlawful assembly contrary to the Public Order Act; (ii) Mr Urai and five other trade unionists were charged for unlawful strike under the ERP; (iii) Mr Urai was also charged for urging political violence contrary to the Crimes Decree, 2009; and (iv) all charges were filed in relation to the commission of separate criminal offences and not in relation to Mr Urai’s trade union activities. The Government indicates that while the charges for unlawful strike and for urging political violence were withdrawn, the charges for the offence of unlawful assembly are proceeding through the Nadi Magistrates’ Court, where the case was called on 28 November 2016. The Government adds in this regard that no charges were filed regarding the breach of the Public Emergency Regulations and the remaining charge concerns breaches of the Crimes Decree, 2009.
7. 42. The Government further states that the collective agreements abrogated by the ENID cannot be restored, as new collective agreements have been negotiated and are in place and the restoration of the previous agreements would create disparity. It adds that it is up to the employers and workers to decide whether or not they agree to reinstate previous collective agreements or whether these should form the basis for renegotiations.
8. 43. With regard to the request to consider the abrogation or amendment of the POAD so as not to place unjustified restrictions on freedom of assembly and to reinstate Rajeshwar Singh (Assistant National Secretary of the Fiji Trades Union Congress (FTUC)), the Government reiterates that under section 8 of the Public Order Act, 1978, any person who wishes to organize or convene a meeting or procession in a public place must first make an application for a permit, in order to ensure the carrying out of administrative functions such as the closure of roads and the provision of law enforcement officers to maintain order; for other instances a permit is not required.
9. 44. The Government further indicates, as regards section 14 of the Political Parties Decree, that it is undertaking reforms to create transparent rules of governance and a legal system based on substantive equality and justice. It explains that section 14(2) of the Political Parties Decree and section 57 of the Constitution ensure the political neutrality of public officers, where public office includes an office in any federation, congress, council or affiliation of trade unions or employers. According to the Government, this ensures that persons in public offices do not engage in political activity which may compromise the political neutrality of that person’s office, do not publicly indicate support for or opposition to any political party, do not use trade union funds to fund their political campaign and do not use their positions to advance a personal political agenda. The Government also indicates that trade union officials have recently contested general elections and that most of them were not successful and have returned to their former trade union positions.
10. 45. As regards Mr Koroi, the Government reiterates that he was charged for breaching the Civil Service Act, 1999, and that a disciplinary process – a normal employer–employee exercise – was undertaken, in which Mr Koroi was found to be in breach of the Civil Service Act, 1999, resulting in the termination of his employment.
11. 46. The Government further provides its observations on the complainants’ 2013 allegations of trade union rights violations in “essential national industries” as governed by the ENID and intimidation and threats in the context of a strike ballot in the sugar sector and indicates that: (i) in 2013, members of the Fiji Sugar and General Workers’ Union (FSGWU) held a ballot to call a strike regarding their pay at the Fiji Sugar Corporation (FSC); while the required number to proceed with the strike was obtained, it did not take place by choice of the workers; (ii) the FSC is not an essential service or industry and members of the union were at liberty to consult their representatives; (iii) although the Public Order Act, 1978 requires a permit for meetings in public places to ensure the carrying out of administrative functions, such as the closure of roads and the provision of law enforcement officers to maintain order, in the instance alleged by the complainants (arrest of more than 30 protestors who had assembled to denounce the entry into force of the new Constitution on 6 September 2013), such permission was not sought by the individuals for the act they wanted to carry out in the public place; (iv) pursuant to section 145 of the ERP, trade union representatives can access a workplace to conduct union business provided that there is authorization in writing by the trade union and consent of the employer; and (v) collective bargaining is freely exercised in the public and private sectors as it is guaranteed by article 20(4) of the Constitution and Part 16 of the ERP, which underlines the duty of good faith.
12. 47. Concerning the additional allegations from the FICTU, of arrest and detention of trade unionists in September 2016, the Government indicates that the persons arrested and detained were suspected of breach of section 8 of the Public Order Act, which states that any meeting in a public place where members of the public are given access requires a permit, as they attended a public meeting for which no permit had been issued. The Government indicates that on 17 October 2016, after careful review of the evidence, the Director of Public Prosecutions found that there was insufficient evidence to sustain the charges against the persons arrested and detained, as there was no intention on their part to attend a meeting in breach of the Public Order Act. Accordingly, no charges were filed against the persons arrested, including Attar Singh.
13. 48. The Committee notes the information provided by the Government concerning the follow-up to the JIR and the 2016 ERP amendment. In particular, it welcomes the registration of 29 enterprise unions in line with the 2016 amendment to the ERP and notes that the expanded ERAB meets monthly to review labour laws to ensure their compliance with ratified ILO Conventions. Noting that the Arbitration Court is competent to deal with reinstated individual grievances discontinued under the ENID and under Decree No. 21, with compensation claims for termination of employment under the ENID and with collective grievances of workers in the public sector, the Committee welcomes that an important number of cases of reinstated individual grievances have already been sent to the Arbitration Court for adjudication. The Committee requests the Government to keep it informed on the functioning in practice of the ERAB and the Arbitration Court, including the progress achieved by these entities and trusts that the Government will continue to show commitment to implementing the JIR and the 2016 ERP amendment. Recalling that it has referred the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations, the Committee trusts that the Government will be in a position to provide the Committee of Experts with concrete information on the progress made in addressing all pending matters in this regard in the near future.
14. 49. The Committee welcomes that, according to the Government, the check-off facilities in the public sector have been restored, and trusts that workers in the other sectors considered as “essential national industries” will be able to benefit from such facilities in the near future.
15. 50. The Committee notes the Government’s indication that the collective agreements abrogated by the ENID could not be reinstated as new collective agreements have been negotiated but that employers and workers could agree to reinstate previous collective agreements or use them as the basis for renegotiations. In this respect, the Committee requests the Government to indicate whether all collective agreements abrogated by the ENID were replaced by newly negotiated collective agreements and, should this not be the case, to take the necessary measures to ensure that, at least in the public sector, collective agreements abrogated by the ENID can be used as a basis for renegotiations.
16. 51. With regard to the POAD and the restrictions on freedom of assembly, the Committee notes that the Government reiterates that under section 8 of the Public Order Act, 1978, any person who wishes to organize or convene a meeting or procession in a public place must first make an application for a permit. In this regard, the Committee also notes the additional information provided by the complainants denouncing the arrest, detention and interrogation of several persons in relation to their attendance at a meeting in September 2016 which was considered illegal by the authorities, and the Government’s response that although the detained persons were suspected of breach of section 8 of the Public Order Act, after careful review of the evidence no charges were filed against them. The Committee also notes that according to the press release of the Director of Public Prosecutions, while the arrest and detention of the persons suspected of having committed an offence was lawfully justified, it took the police five days after the meeting to act and it would appear that the police were selective in who they arrested, given that a large number of people had taken part in the public meeting. The Committee wishes to emphasize the importance it attaches to freedom of assembly in the context of trade union rights and, in view of the concerns previously raised as to the adverse effects the POAD can have on legitimate trade union activities, requests the Government to ensure that it is not used to impede the exercise of these rights. Regretting further that the Government does not provide any information on the reinstatement of Rajeshwar Singh (FTUC Assistant National Secretary) on the ATS Board, the Committee requests the Government once again to reinstate him in his position representing workers’ interests without delay, should this not yet be the case.
17. 52. With respect to the alleged acts of assaults, harassment and intimidation of trade union leaders and members for their exercise of the right to freedom of association made previously in this case, the Committee will no longer pursue the examination of these allegations in view of the absence of the additional information requested from the complainants.
18. 53. As regards the pending criminal charges related to the exercise of trade union activity brought against union leaders from the National Union of Hospitality, Catering and Tourism Industries Employees Union (NUHCTIE), the Committee notes that, while the charges of unlawful strike were dropped, the criminal charges pending against Mr Daniel Urai and Nitendra Goundar for the offence of unlawful assembly contrary to the Public Order Act are proceeding before the Nadi Magistrates’ Court, where the case was called on 28 November 2016. The Committee once again urges the Government to take the necessary measures to ensure that all pending criminal charges for unlawful assembly against Mr Urai and Mr Goundar are immediately dropped, especially in view of the Committee’s recommendation in relation to the POAD, and requests the Government to keep it informed of any developments in this regard.
19. 54. The Committee further notes that, with regard to the case of Tevita Koroi, the Government simply reiterates that the employment of Mr Koroi was terminated as a result of a disciplinary process in which he was found to be in breach of the Civil Service Act, 1999. The Committee notes with regret that despite previous indications that the case would be reviewed by the ERAB, the Government does not submit any new information in this regard. The Committee, therefore, reiterates its expectation that, after several years, the case of Mr Koroi 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 the 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.
20. 55. Lastly, the Committee notes the Government’s reply to the 2013 FTUC allegations relating to trade union rights violations in “essential national industries” as governed by the ENID and intimidation and threats in the context of a strike ballot in the sugar sector, and observes that, although invited to do so, the complainants have not provided any further information on the status of these matters. In view of the repeal of the ENID by the 2015 ERP amendment and the elimination of the explicit outright prohibition of industrial action in “essential national industries”, the Committee expects the Government to guarantee in the future the right to exercise legitimate trade union activities in the sugar sector and other “essential national industries”, and will no longer pursue the examination of the 2013 FTUC allegations.