Demande directe (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Fidji (Ratification: 2002)

The Committee notes with interest the information contained in the Government’s first report as well as the text of the draft Industrial Relations Bill. It also notes the comments made by the Fiji Trades Union Congress (FTUC) on the Government’s report. Noting that the Government’s report concerns only legislation on workers’ organizations, the Committee requests the Government to transmit in its next report the text of the Industrial Associations Act which according to the Government regulates employers’ organizations.

The Committee notes with interest that the draft Industrial Relations Bill seems to make considerable progress in resolving several discrepancies between the Trade Unions Act and the Trade Disputes Act on the one hand, and the Articles of the Convention on the other, with regard to the following issues: (a) participation of employers’ representatives in the Trade Union Advisory Committee (comment by the FTUC on section 3(2) and (3) of the Trade Unions Act); (b) trade union monopoly (section 13(1)(e) of the Trade Unions Act); (c) interference with trade unions’ right to specify voting rights in their constitutions and rules (sections 29, 32(1) of the Trade Unions Act); (d) power of the Registrar to institute proceedings in order to restrain a trade union from acting in breach of its rules (section 37(4) of the Trade Unions Act); (e) restrictions on the content of trade union rules concerning financial matters, voting rights and trade union meetings (clauses 15, 19, 21 and 22 of the Schedule to section 37 of the Trade Unions Act); (f) requirement of exhaustive enumeration of the trade union purposes and of the purposes for which trade union funds may be expended, and requirement of minister’s approval for any additional purpose (section 50(2)(t) and clause 3 of the Schedule to section 37 of the Trade Unions Act); (g) age limit of 21 years and literacy requirement for election to trade union office (sections 30 and 31(2) of the Trade Unions Act); (h) prohibition of protest action and sympathy strikes (section 10 of the Trade Disputes Act); (i) power of the minister to refer to compulsory arbitration at his initiative disputes in addition to those concerning essential services (section 6(2)(c) of the Trade Disputes Act); (j) excessively long cooling-off period (section 8 of the Trade Disputes Act); (k) insufficient guarantees of independence and impartiality of mediation, conciliation and arbitration mechanisms (sections 4(1)(d) and (f), 5A, 19 and 20 of the Trade Disputes Act); and (l) the Registrar’s power to cancel or suspend the registration of a trade union for failing to carry out the provisions of its constitution on the protection of the sectional interests of its members (section 14(3)(c) of the Trade Unions Act).

The Committee also notes, however, that certain discrepancies seem to remain or to require clarification, in particular:

Article 2 of the Convention. Prisons service. The Committee observes that section 2(2) of the Trade Unions Act excludes the Fiji Prisons Service from the scope of the Act and section 3(2) of the draft Industrial Relations Bill maintains the same restriction while, according to the FTUC, prison staff is barred from joining or establishing a trade union. The Committee considers that prison staff should enjoy the right to organize as its exclusion is not justified on the basis of Article 9 of the Convention. (General Survey on freedom of association and collective bargaining, 1994, paragraph 56) The Committee requests the Government to consider modifying section 2(2) of the Trade Unions Act and section 3(2) of the draft Industrial Relations Bill so as to lift the exclusion of prison staff from its scope.

Prohibition of membership in more than one trade union. The Committee observes that according to section 21(1) of the Trade Unions Act no person shall be a voting member of more than one trade union. This limitation is maintained in section 129(2) of the draft Industrial Relations Bill. The Committee considers that it would be desirable for workers exercising more than one occupational activity in different occupations or sectors to have the possibility of joining the corresponding trade unions. The Committee requests the Government to consider amending this provision in accordance with the above.

Trade union’s name. The Committee notes that section 12 of the Trade Unions Act provides that the Registrar shall require a change in the name of a trade union if in his or her opinion such name is undesirable and that section 132(2)(iii) of the draft Industrial Relations Bill maintains this power. The Committee considers that this provision gives the Registrar a genuinely discretionary power in this matter. It therefore requests the Government to consider lifting this provision.

Trade union amalgamation. The Committee observes that section 42 of the Trade Unions Act provides that, save with the consent of the Registrar, no registered trade union shall amalgamate while section 46 of the same Act provides that the Registrar’s consent to the amalgamation shall not prejudice or affect in any way the powers vested in him to refuse to register the trade union formed by such amalgamation. The Committee considers that the double requirement of approval (consent to the amalgamation and subsequent granting of registration to the amalgamated trade union) appears to constitute an unnecessarily strict and complicated procedure. The Committee also observes that according to section 132(c)(iii) of the draft Industrial Relations Bill, the Registrar may refuse to register an amalgamated union for "valid objections". In the Committee’s view, all these provisions give the Registrar a genuinely discretionary power which amounts to a requirement of previous authorization. The Committee requests the Government to consider amending sections 42 and 46 of the Trade Unions Act and section 132(c)(iii) of the draft Industrial Relations Bill.

Article 3 of the Convention. Trade union ballots. The Committee notes that pursuant to Clause 13 of the Schedule to section 37 of the Trade Unions Act, trade union decisions on matters like the election of officers, the alteration of the union’s rules, strikes, the dissolution of the union, the amalgamation of the union with another trade union, the federation of the union with any other trade union or with a trade union federation, and the imposition of levies must be adopted through secret ballots. In this respect, sections 10(1) and 10A(a) of the Trade Unions Regulations as amended by the Trade Unions Regulations (Amendment) Regulations 1991 provide that the ballot shall be conducted with the supervision of the Registrar of Trade Unions who shall be notified of the intention to hold the ballot at least 21 days in advance. The Committee considers that provisions which allow the administrative authorities to supervise trade union ballots, in particular by requiring the prior notification and presence of representatives of the administration during the vote, give the authorities permanent powers of supervision over trade union ballots and constitute interference contrary to Article  3 of the Convention. The Committee takes due note of section 279 of the draft Industrial Relations Bill which provides that the Trade Unions Act shall be repealed upon its entry into force. The Committee requests the Government to confirm that secondary legislation, like the Trade Unions Regulations (especially sections 10(1) and 10A(a)) shall no longer be enforced once the Trade Unions Act has been repealed. Moreover, noting that under section 278(s) of the draft Industrial Relations Bill, the minister may make regulations in the future on the conduct of secret ballots by registered trade unions, the Committee requests the Government to ensure that any future regulations do not involve any interference in trade union elections.

Sanctions for refusal to participate in an unlawful strike. The Committee observes that sections 13 of the Trade Unions Act and 187(1) of the draft Industrial Relations Bill provide that no person refusing to take part in an unlawful strike shall be subject to expulsion from a trade union or to deprivation of any right or benefit to which he or she is entitled, or placed in a disadvantage as compared with other members of the organization, notwithstanding anything to the contrary in the constitution or rules of an organisation. The Committee considers that this issue should be up to trade union constitutions and rules to determine and that the above provisions constitute interference by the authorities in trade union activities. The Committee requests the Government to lift these provisions.

Occupational requirement. The Committee observes that according to section 31(1) of the Trade Unions Act, all trade union officers should have been and still be engaged or occupied for a period of not less than one year in an industry, trade or occupation with which the union is directly concerned while, according to subparagraph (b), the Registrar may, in his discretion, permit the office of treasurer to be filled by a person not fulfilling this requirement. The Committee considers that provisions which require all candidates for trade union office to belong to the respective occupation, or to be actually employed in this occupation, either at the time of their candidature or during a certain period before their election, are contrary to the guarantees set forth in the Convention. The Committee further notes that the provisions of the draft Industrial Relations Bill contain a less stringent occupational requirement as section 136(1)(a) provides that officers should have been engaged in the specific trade or occupation for not less than six months while section 136(2) excludes from this requirement the secretary and treasurer. In order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization rather than specific posts (General Survey, op. cit., paragraph 117). Moreover, the possibility of deviating from this rule upon the Registrar’s decision, entails a risk of arbitrary interference in the process of trade union elections. The Committee therefore requests the Government to take measures so as to relax the occupational requirement even further by excluding from it a certain percentage of trade union officials rather than specific posts.

Power to examine trade union books at any time. The Committee observes that section 53(1) of the Trade Unions Act provides that every treasurer of a trade union shall at any time at which he may be required to do so by the Registrar, render to the Registrar a just and true account of all moneys received and paid by him during his period in office while section 57(1) provides that the Registrar may at any time call upon the treasurer or other officers to render, within seven days, detailed accounts in writing of the funds of the trade union or any branch thereof. Section 57(2) provides that any officer of a trade union who fails to comply with such a request by the Registrar shall be guilty of an offence and liable to a fine or/and imprisonment. The Committee also observes that section 137(2) of the draft Industrial Relations Bill provides that the minutes on financial matters, the list of members and other documents must be open to inspection by the Registrar during normal business hours while section 137(3) enables the Registrar to request accounts in writing at any time. The Committee considers that serious problems of compatibility with the Convention arise when the administrative authority has the power to examine the books and other documents of an organization, conduct an investigation and demand information at any time. Such verifications should be limited to exceptional cases, for example, in order to investigate a complaint, or if there have been allegations of embezzlement. Both the substance and procedure of such verifications should moreover be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity. (General Survey, op. cit., paragraphs 125 and 126). With regard to the provision that trade union officers will face imprisonment if they do not comply with the orders of the Registrar, the Committee notes that penalties should not be imposed in cases of non-respect of a law which is itself contrary to freedom of association principles and should not be disproportionate to the gravity of the offence. The Committee therefore requests the Government to lift the provisions of sections 53(1) and 57(1) of the Trade Unions Act and sections 137(2) and (3) of the draft Industrial Relations Bill as well as section 57(2) of the Trade Unions Act.

Strike ballots. The Committee notes that section 10B(i) of the Trade Unions Regulations provides that, as soon as is reasonably practicable after a strike ballot, the union shall take the necessary action to ensure that all those entitled to vote have voted and the Registrar is informed of the outcome. The Committee considers that although a requirement of a strike ballot does not, in principle, raise problems of compatibility with the Convention, the ballot method, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult, or even impossible in practice. (General Survey, op. cit., paragraph 170). Thus, the Committee considers that the legality of the ballot should not depend on whether all trade union members actually voted if appropriate quorum requirements applied and all members were given a reasonable opportunity to vote. The Committee requests the Government to confirm that the provisions of section 10B(i) of the Trade Unions Regulations will no longer be enforced once the Trade Unions Act has been repealed by virtue of the adoption of the draft Industrial Relations Bill and to ensure in the future that strike ballots can take place without any undue obstacles.

Responsibility for declaring a strike unlawful. The Committee observes, that under sections 8-10A of the Trade Disputes Act, the minister may declare a strike unlawful where it appears to him or her that certain conditions have not been fulfilled. The Committee considers that responsibility for declaring a strike illegal should not lie with the Government, but with an independent body which has the confidence of the parties involved. Moreover, the Committee notes that it is not clear whether the draft Industrial Relations Bill rectifies this discrepancy as its sections 183-185 do not indicate the body which is competent to declare a strike unlawful. The Committee requests the Government to amend sections 8, 9, 10 and 10A of the Trade Disputes Act and sections 183-185 of the draft Industrial Relations Bill so as to ensure that responsibility for declaring a strike illegal rests with an independent body (i.e. the courts) which has the confidence of the parties involved.

Compulsory arbitration. The Committee observes that according to section 6(2)(a) of the Trade Disputes Act, the minister may decide to refer a dispute to compulsory arbitration, whether or not the parties consent, where a strike has been declared by the minister to be unlawful under section 8. Section 8 provides that the minister may declare a strike unlawful within 42 days from the receipt of the report of the dispute if he or she considers that all practicable means of reaching a settlement of the dispute (either through the procedure laid down in the registered agreement or under the provisions of the Act) have not been exhausted. The Committee considers that these provisions entail the possibility of referring virtually all strikes to compulsory arbitration at the initiative of the minister thereby prohibiting strikes in all sectors. The Committee also observes that section 213(1) of the draft Industrial Relations Bill provides that in case of an industrial dispute, one of the parties may bring the issue before the Labour Court for decision at the first instance while section 213(2)(b) and (c) provides that the Labour Tribunal may decide to transfer the proceedings to the Labour Court if it is in the public interest to do so given the case’s nature and urgency or if it is of the opinion that no purpose is served by mediation. The Committee recalls that a regime of compulsory arbitration is acceptable under the Convention only where it applies, either at the request of both parties to a dispute or in essential services in the strict sense of the term or for public servants exercising authority in the name of the State. The Committee requests the Government to amend section 6(2)(a) of the Trade Disputes Act and section 213 of the draft Industrial Relations Bill so as to limit the regime of compulsory arbitration to cases where it is compatible with the Convention.

Essential services. The Committee observes that the essential services list provided in the Schedule to section 2 of the Trade Disputes Act (as enlarged by the Trade Disputes Act (Amendment) Decree No. 27 of 1992) includes meteorological services, mine pumping ventilation and winding, air transport, port and docks services including stevedoring and lightering, loading and unloading cargo from or onto any ship and despatch of any cargo to destination, transport services necessary to the operation of the aforementioned services, and the tourism industry. The Committee further observes that, according to section 6(2)(b), the minister may decide to refer such services to compulsory arbitration and to prohibit any strike in connection with such services. In addition to this, the Committee further observes that the draft Industrial Relations Bill does not include in the list of essential services the meteorological services, and the mine pumping ventilation and winding services while it is not clear whether compulsory arbitration can be imposed on essential services under the draft Bill. The Committee considers that essential services in which the right to strike may be restricted or even prohibited are only those the interruption of which would endanger the life, personal safety or health of the whole or part of the population (General Survey, op. cit., paragraph 159). The above list does not seem to fit into this definition, even if one takes into account the special circumstances existing in islands which are heavily dependent on services like, for instance, the port or maritime transport services, in order to provide basic supplies to the population (General Survey, op. cit., paragraph 160). In order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes, the authorities could establish a system of minimum service in other services which are of public utility, rather than impose an outright ban on strikes, which should be limited to essential services in the strict sense of the term (General Survey, op. cit., paragraph 160). The Committee therefore requests the Government to envisage further restricting the list of essential services in which the right to strike may be prohibited. The Committee reminds the Government that, given its specific circumstances, minimum services could be envisaged for certain of the services on that list.

Prison sentences. The Committee observes that section 10A(b) of the Trade Unions Regulations provides that any strike action taken before the result of a strike ballot has been declared shall be deemed unlawful and an offence punishable by a fine or a term of imprisonment not exceeding 12 months or both. The Committee considers that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. Even in such cases, the application of disproportionate penal sanctions does not favour the development of harmonious and stable industrial relations. If measures of imprisonment are to be imposed at all, they should be justified by the seriousness of the offences committed (General Survey, op. cit., paragraph 177). The Committee further observes that, under section 278(3) of the draft Industrial Relations Bill, penalties for violating the regulations issued by the minister, including on secret ballots, may include imprisonment of up to 12 months. The Committee requests the Government to ensure that section 10A(b) of the Trade Unions Regulations shall no longer be enforced once the Trade Unions Act has been repealed by virtue of the adoption of the Industrial Relations Bill and to ensure in the future that measures of imprisonment are only imposed for penal violations, are justified by the seriousness of the offences committed and are accompanied by sufficient judicial safeguards.