The law, including related regulations and statutory instruments, gives many workers in the private sector the right to form and join independent unions, elect their own representatives with some restrictions, publicize their views on labor matters, and determine their own policies. The law also gives most workers the right to strike and bargain collectively. However, strict legal controls on right of assembly and inconsistent enforcement of the law by officials during the year at times rendered those rights difficult to exercise in practice.
Civil servants are excluded from the ERP and its tribunals, courts, and mediation services and instead are covered by parallel mechanisms in the State Services Decree, which provides civil servants the same rights to equality and nondiscrimination as workers covered by the ERP. Unlike workers covered by the ERP, however, civil servants do not have the right to bargain collectively. A 2011 decree reclassified 15,000 public-sector workers as civil servants, terminating judicial protections and substituting the right of appeal to the Public Service Commission (PSC).
All unions must register with the government, which has discretionary power to refuse to register any union with an “undesirable” name, as well as to cancel registration of existing unions in cases provided for by law. The ERP allows restrictions on the right of association if necessary in the public interest or to protect national security. Police, military, and prison personnel are prohibited from forming or joining a union.
Although the POAD liberalized some restrictions imposed under the PER, many limitations on freedom of association and assembly were continued under the new decree, such as the government’s broad discretionary authority over meeting permits. The POAD’s restrictions on meetings, except at large public venues, were lifted on July 18 for the duration of the constitutional reform process.
The law provides for the limited right to strike, except for police, military, and prison personnel. Unions can conduct secret strike ballots but must give the registrar 21 days’ notice. More than 50 percent of all paid-up union members--not only paid-up members who actually cast ballots in the election--must vote in favor of a strike for the strike to be legal. The Ministry of Labor also must be notified and receive a list of all striking employees and the starting date and location of the strike. This requirement is intended to give organizers, unions, employers, and the ministry time to resolve the dispute prior to a strike. To carry out a legal strike, organizers of strikes in certain “essential services”--including emergency, health, fire, sanitary, electrical, water, and meteorological services; telecommunications; air traffic control; and fuel supply and distribution--are required to give an employer 49 days’ notice. The law also permits the minister of labor to declare a strike unlawful and refer the dispute to the ERT. If the issue is referred to the ERT, workers and strike leaders can face criminal charges if they persist in strike action. There were no reported strikes during the year.
Under the law any trade union with six or more members may enter into collective bargaining with an employer. Individual employees, including nonunionized workers, as well as unions, can bring a dispute with employers before the permanent secretary for labor for mediation. If mediation fails the authorities may refer the dispute to the ERT. The ERT’s decision can be appealed to the Employment Court (a division of the High Court) and from there to the Court of Appeal and then the Supreme Court. Unions also have the right to appeal to the ERT against an adverse decision by the trade union registrar. Individuals, employers, and unions on behalf of their members may submit employment disputes and grievances alleging discrimination, unfair dismissal, sexual harassment, or certain other unfair labor practices to the Ministry of Labor.
The authorities did not always respect fundamental labor rights in practice. The 2011 ENID restricts trade union and collective bargaining rights for workers in designated industries and corporations deemed essential to the national economy. In 2011 the government officially designated 11 corporations in four sectors--finance, telecommunications, the public sector, and the airline industry--as “essential” under the decree. Once the corporations were designated, existing collective agreements and unions were nullified within 60 days. Only negotiating units of at least 75 members were permitted to reorganize and negotiate with employers. Under the new decree, the prime minister is provided final, unreviewable authority to approve the size and composition of the units. Such units were not registered as trade unions under the ERP and did not enjoy the same rights and protections accorded trade unions under the ERP. The ENID also prohibits any individual not directly employed by an employer from undertaking negotiations on the employees’ behalf. While all existing collective agreements were annulled, parties were given 60 days to negotiate a new contract before employers gained the right to unilaterally impose a new collective or individual contract. In most industries in which the ENID applies, however, employers appeared to have preserved the majority of benefits provided under previous collective bargaining agreements.
The ENID allows “essential” industries considered to be in financial distress to renegotiate collective agreements. If the parties fail to reach a new collective agreement, these employers may unilaterally submit a new or amended agreement to the prime minister for approval. The ENID severely restricts the rights of workers in designated industries to strike, requiring more than three years of unsuccessful negotiations, excluding most common causes for disputes, and requiring prior strike approval from the government. The ENID gives the prime minister broad authority to declare any strike unlawful, and violators are subject to severe penal sanctions. The government has wide discretionary authority to determine that additional industries are “essential.” Decisions made under the ENID’s auspices are not contestable in court.
After the ENID was issued in 2011, the government denied permits to the two trade union umbrella bodies, the Fiji Trades Union Congress (FTUC) and the Fiji Islands Council of Trade Unions (FICTU), to hold their council meetings. However, with the lifting of the PER, the FTUC and FICTU were able to hold meetings in 2012. Unions, however, alleged that POAD restrictions on meetings, arbitrary permit decisions by authorities, and monitoring by authorities severely limited their ability to conduct union business. On October 19, police interrupted a meeting between employee and employer representatives of the Pacific Fishing Company. They later apologized and claimed that the police presence was due to confusion relating to a separate case.
While not promoted by the ERP, individual contracts were common. Employers tended to offer advantageous packages to new employees, particularly skilled labor, to promote individual contracts, which according to labor groups reduced the possibilities for collective bargaining and weakened unions.
At year’s end Daniel Urai, president of the FTUC and general secretary of the hotel workers union, and union organizer Nitin Goundar continued to await trial on 2011 charges of breach of the PER for holding a meeting without a permit. The two unionists had met with two workers fired from an island resort. Urai was also awaiting trial on a separate 2011 charge of sedition; the government alleged he urged certain persons to overthrow the government. Both men remained free on bail pending trial. Under his bail conditions, Urai required court permission to travel abroad. Although during the year a court granted permission for him to attend a meeting abroad, airport immigration officers stopped him from leaving the country pending receipt of clarification from the court regarding the travel approval; this caused him to miss the meeting.
Labor leaders and civil society groups also criticized the POAD’s broad definition of “terrorism” and government officials’ broad discretion under the law to detain individuals or prohibit meetings on poorly defined grounds, such as intent to “undermine” the economy.
The law prohibits an employer from victimizing workers or firing a worker for belonging to a union, but union organizers were occasionally vulnerable to dismissal or other interference by employers.
Major trade unions reported instances of the government using the ERP in a biased fashion to shut down negotiations and appeals.
In 2010 the Fiji Sugar Corporation ceased direct deduction of union dues for two registered farmers’ unions. These unions reported difficulties collecting dues from members and providing services to members because of this measure. The government did not directly deduct union dues for civil service unions. The law makes automatic deductions a service rather than a right, so the government can choose not to provide this service. These unions claimed that this greatly hampered their ability to represent their members. At mid-year the PSC stated there were no plans to restore dues deductions.
After seemingly securing the government’s agreement to terms of reference (TOR) for an International Labor Organization (ILO) mission to investigate allegations that the government was limiting freedom of association, an ILO team arrived in the country on September 17. The team was asked to leave the country during its initial meeting with the Ministry of Labor. The government claimed the TOR had not been approved government wide and offered the ILO a different TOR that was unacceptable to the ILO. At year’s end the government and the ILO were engaged in efforts to secure a new mission under mutually agreed TOR, and in December the government invited the ILO to return for a mission in 2013.