The ERP, 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 new constitution is silent on the right to strike and limits the right to bargain collectively.
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. The Essential National Industries Decree (ENID) restricts trade union and collective bargaining rights for workers in designated industries and corporations deemed “essential” to the national economy. These include 11 corporations in four sectors: finance, telecommunications, the public sector, and the airline industry.
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 freedom 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. The law prohibits some forms of antiunion discrimination, including victimizing workers or firing a worker for belonging to a union, but union organizers occasionally were vulnerable to dismissal or other interference by employers. 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.
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 in July 2012 for the duration of the constitutional reform process.
Under the law, any trade union with six or more members that is not in an enterprise or industry covered by the ENID 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. ERT appellate cases were subject to the same lengthy waiting times as other judicial cases.
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. 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.
Under the ENID the prime minister has final, unreviewable authority to approve the size and composition of the collective bargaining 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. The ENID allows designated enterprises and industries to renegotiate collective agreements if they are considered to be in financial distress. 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.
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 those 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.
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.
The authorities did not always respect fundamental labor rights in practice. The two trade union umbrella bodies, the Fiji Trades Union Congress (FTUC) and the Fiji Islands Council of Trade Unions, were able to hold meetings during the year. 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. 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. Major trade unions reported instances of the government using the ERP in a biased fashion to shut down negotiations and appeals.
Although not directly related to the exercise of trade union rights, the constitution prohibits union officers from becoming members of parliament. The Political Parties Decree also limits the ability of union members to form or join political parties and exercise other political rights. International observers commented on the chilling effect this had on organizing, as well as its incompatibility with international law.
In July the Fiji Sugar and General Workers Union obtained a strike ballot from over 50 percent of its members employed at the Fiji Sugar Corporation, a state-owned enterprise. NGOs reported the company repeatedly failed to negotiate with workers’ representatives, and the government deployed security forces to interfere with the vote, including by intimidating workers. The government appealed to the union members not to strike, and, on August 15, sent security personnel into the sugar mills to “protect the government’s investment.” The workers did not strike. The International Trade Union Confederation reported that on August 22, military officers drove to the mill for an “inspection,” and that the attorney general threatened to bring in replacement workers.
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. Urai was also awaiting trial on a separate 2011 charge of sedition. Under his bail conditions, Urai required court permission to travel abroad. In July the director of public prosecutions petitioned the court to combine Urai’s case with that of New Zealand businessman Jagath Karunaratne, who was charged with using anti-government graffiti to urge political violence during an unrelated event. The cases of both men remained pending at year’s end.
During the year access for an International Labor Organization (ILO) mission to investigate allegations related to the government’s failure to meet obligations regarding freedom of association and the right to collective bargaining remained under discussion. During its initial meeting, the ministry of labor asked the original ILO mission, which arrived in September 2012, to leave the country. The government claimed the terms of reference (TOR) had not been approved government-wide and offered the ILO different TOR unacceptable to the ILO. As of September, in part due to noncommunication on the part of the government, neither new TOR nor new dates for the mission had been identified.