FACT SHEET

Scope of the Decree

The Decree is limited to essential national industries.  Only companies within industries that are vital to the Fiji economy, or in which the Government has a majority and essential interest, may be brought within scope of the Decree.  It will not apply to the vast majority of employers in Fiji.

It is incorrect to claim that the Decree will be “extended to cover all unions in all sectors of Fiji’s economy”.  This is not the intention, and it would not be permitted by the Decree itself.

Right to form and join a trade union

The Decree upholds the fundamental right of workers in essential national industries to form and to join a trade union of their choice.   It is certainly not the case, as has been claimed, that the Decree “abolishes all existing trade unions in Fiji”.  

In companies within essential national industries designated under the Decree, workers can still join a trade union, and have that union recognised for the purpose of collective bargaining if a majority of workers clearly want that.  Where that happens, the employer is obliged to recognize and negotiate in good faith with the union representatives.

Workers who do not want to be represented by a trade union must also have that freedom.  The Decree strikes a balance between the interests of all workers.

The Decree contains the concept of “bargaining unit” which is found in other countries’ laws including the US and UK.  The bargaining unit does not “replace trade unions” as has been claimed – the two are quite different concepts.  Trade unions will continue to exist and can represent workers within a bargaining unit in a designated corporation in accordance with the Decree.

Re-registration of unions

The Decree requires trade unions which represent workers within designated corporations to re-register, having gone through the balloting process set out in the law.  This ensures that such unions continue to enjoy the freely-given support of a majority of workers, and that workers who do not wish to be represented by a trade union have the opportunity to express that view.   The registration process is modeled on US labor laws and requires a secret ballot.

Trade union representatives

The Decree does not “outlaw professional trade unionists” as some have misleadingly claimed.  It requires that those who negotiate directly with the employer in designated corporations are employees of the company concerned, so that an employer may negotiate terms and conditions directly with its own employees who have a direct stake in the outcome, rather than with an external third party who may have a wider agenda of their own.

Trade unions can continue to employ staff.  Those staff can continue to advise workers’ representatives engaged in negotiations with their employers in designated corporations, but would not have the right to conduct those negotiations themselves.

Imposition of terms and conditions

The decree only allows an employer in a designated corporation to impose terms and conditions after it has conducted good faith negotiations for at least 60 days.  Where a new collective agreement is imposed, there is a right of appeal to the Minister for a review of its contents.  This is similar to the position in other countries, such as the UK where an employer may dismiss employees and re-engage them on new terms and conditions.

Overtime pay

Contrary to some misleading reports, the Decree does not “ban overtime” for workers in 24-hour operations.   Overtime pay can continue, as agreed by the employer in a designated corporation.   This is the approach to overtime pay in many other countries.

Check off

The Decree does not ban the system of check off in designated corporations, but allows employers not to operate it.  This is a common approach in many other countries, eg compulsory check off was abolished in the UK in 1993.  Compared with labour laws of other countries there is nothing unusual about it.

Restrictions on industrial action

The Decree upholds the fundamental right of workers to take industrial action in pursuit of their legitimate interests.  But as in many countries, this right is circumscribed in order to avoid damaging disruption to commerce.


Examples:

· In the US, airline and railroad employees are prohibited from striking except in narrowly defined circumstances.   More generally, US law allows for a Presidential Review Board to review and intervene in the event of a potential strike that could seriously disrupt national commerce. Some individual States prohibit strikes by public sector employees.

· In the UK, industrial action in a number of critical sectors is illegal or has been illegal in the past, eg prison officers, police, army, while there is currently debate (and strong public support) for banning strikes in essential services such as public transport.
· In Germany planned strike action by airline pilots was prohibited by the courts in 2010.

· In France a 2007 law on continuity of public service in terrestrial transport restricts industrial action by certain categories of public transport workers (eg train and bus drivers).


Dispute resolution

The Decree guarantees employees in designated corporations will have the right to various "dispute resolution" processes concerning disciplinary issues and contract interpretation issues (subject to a specified financial threshold). These are now required as a matter of law, not subject to the power game associated with collective bargaining.

Penalties

There are significant penalties for individuals or organisations that ignore the provisions of the Decree and attempt to disrupt operations in an essential national industry.  The impact of such illegal action could be devastating to the companies concerned and could affect tens of thousands of Fijians. There needs to be an effective deterrent against actions for personal gain that could have such impact on others and on the Fijian economy.

Other Countries’ Trade Laws
United States

Key elements of the Decree are modeled on US labor law – specifically, the National Labor Relations Act (NLRA), first drawn up in 1935.  Under the NLRA:

· A labor union seeking to represent workers in a bargaining unit must obtain support (normally through authorization cards) from a least 30% of employees in the unit
· The National Labor Relations Board (NLRB) will then conduct a secret ballot election in which a majority of the workers in the bargaining unit must vote in support of the union
· The NLRB determines what is the appropriate bargaining unit
· An election may not be held if a valid election was held in that unit in the previous 12 months
· Employees represented by a union can petition to decertify the union, where they produce evidence that at least 30% of workers supports decertification.  The employer can also request decertification if he has substantial evidence that the union no longer has the support of a majority of the bargaining unit.

United Kingdom

· Only in companies with 21+ employees do trade unions have a legal right to be recognised by employers for the purpose of collective bargaining.  
· The union must have the support of 40% of workers in a bargaining unit plus a majority of those who vote in a ballot, in order to be recognised by the employer.  
· A union has no right to recognition if there is already in place a collective agreement between the employer and another union covering the same bargaining unit.   
· A claim for recognition may not be brought if the same union made a failed attempt for recognition within the past three years.  
· Statutory recognition is limited to bargaining on pay, hours and holidays only.  
· The legal right was introduced in 2000.  Prior to that trade unions had no legal right to recognition for bargaining purposes.
· The UK is a founding member of the ILO and has ratified Conventions 87 on freedom of association and 98 on collective bargaining.  The UK has robustly defended its union recognition laws as compatible with ILO Conventions, in response to criticism of them by ILO Committees following trade union complaints.

Ireland has no system of statutory trade union recognition.  Recognition of unions for bargaining purposes is a purely voluntary system.

The European Court of Human Rights has held that the European Convention on Human Rights does not impose a requirement for compulsory collective bargaining, and the right to strike is not absolute and may be subject to certain restrictions

The Court of Justice of the European Union has ruled that right to strike can only be conducted under EU law where it pursues a legitimate aim and is justified by overriding reasons of public interest.  It should not be used to restrict freedom of movement and freedom to provide services across borders in the European Union.

Click here for the Essential National Industries (Employment) Decree 2011 (pdf)

and the Essential National Industries and Designated Corporations Regulations 2011 (pdf)

Frequently Asked Questions

Q1:     By definition, the sugar industry in Fiji must qualify as an “essential industry.”  Why has it not been named in the Regulations?

A1: It is not to say the sugar industry, or any another industry meeting the criteria of the Decree, might be added at a later date.  The Regulation’s list of industries will be kept under review and updated as necessary to take into account a key objective of the Decree to ensure the viability and sustainability of essential industries.   Our sugar industry is currently devoting its full energies to the crushing season.  It would not be productive to possibly interrupt its efforts.

Q2:     Did the declared corporations have input in the Decree and did they lobby to be included in the Regulations?

A2: Consistent with virtually every other government, we are lobbied for new laws or amendments to existing laws – that is to be expected; it is how the process works.  The government is keen to understand from the international and domestic business communities how it can support creating a climate that fosters economic growth and job creation.    As such, we constantly seek and evaluate input, as we did with the development of this Decree.   It is the responsible thing to do.  

On the lobbying question:  Some designated corporations did lobby for inclusion and were so declared only because they met the Decree’s very narrow and well-defined set of national and economic interest criteria.   Others have lobbied to be included and have not been accepted.  (We will not be releasing the names of these enterprises.)

Q3:     Other industries likely will clamour to be included in the Decree.  Are concerns founded that the Government will progressively extend its scope?

A3: No.  This is not the intention, and it would not be permitted by the Decree itself.  The Decree may only cover companies within industries that are vital to the Fiji economy, or in which the Government has a majority and essential interest.  It will not apply to the vast majority of employers in Fiji.

Q4:     Is it true, as some have alleged, that the Decree will be “extended to cover all unions in all sectors of Fiji’s economy”?

A4: No.   The Regulations only pertain to those industries deemed vital to Fiji’s economic well-being.  With the exception of three banks included in the financial industry sector, the Regulations do not extend to the private sector.  Moreover, industries such as Fiji’s garment, mining and retail industries, for example, are deliberately not included.   This supports the Bainimarama Government’s commitment to improve the wages and working conditions for those finding themselves on the margin of poverty.

Q5:     Are concerns valid that the Decree effectively abolishes trade unions and bans professional trade unionists in Fiji?

A5: Absolutely not.  The Decree does not abolish trade unions, but reaffirms their right to exist and to bargain on behalf of workers.  It provides for employees to organize and join a union, if that is what they want.  It establishes ground rules for ensuring that a majority of the relevant workers who want to be represented by a trade union may do so through secret ballot elections.  It also allows professional trade unionists, who may advise their members in negotiations with an employer.  But it allows employers in designated corporations the right to negotiate directly with their own employees rather than with an external third party.

Q6:     Does the Decree run counter to the Government’s People’s Charter, which commits to upholding a just and fair society and social justice?

A6: The Decree is consistent with the People’s Charter by upholding fundamental rights and at the same time seeking to promote both economic and social justice in the interests of all the people of Fiji.  It upholds such fundamental workers’ rights as the right to organise and form a union, the right to a secret ballot election, the right to collectively bargain, the right to dispute resolution and the right to strike. 

Q7:     Is there any foundation to the claim that the Decree bans overtime pay for workers in a 24/7 operation?

A7: No, the Decree does not ban overtime.   The Decree unequivocally provides for payment of overtime, as mutually agreed to by the parties, for work performed on Saturdays, Sundays or public holidays.  This is the approach to overtime pay in many other countries.

Q8:     Does the Decree take away workers’ rights to collectively bargain through unions?  If so, doesn’t it blatantly violate ILO Conventions?

A8: The Government does not agree that the Decree breaches ILO Conventions on freedom of association and the right to collective bargaining.  Fiji has ratified those Conventions and upholds them.  The Decree makes the exercise of those rights subject to certain conditions and restrictions, as does the law in virtually every other country.

The Decree plainly states that the principles of good faith as set out in Division 1 of Part 16 of the Employment Relations Promulgation 2007 shall apply to all negotiations and interactions between the employer and the registered representative under the Decree.  

A requirement to bargain in good faith is common to many jurisdictions, and it is right that this is included in the Decree.  The principles of “good faith” are set out in detail in the Employment Relations Promulgation 2007, and the Decree applies them to negotiations between employers and worker representatives in designated corporations.  They include for example, timely meetings, consideration of and response to proposals by either party, provision of necessary information, and not undermining the other party.

Q9:     Does the Decree remove workers’ right to strike, as some have claimed?

A9: No.  The Decree upholds the fundamental principle that workers may strike.  Just as many other countries do, it makes it subject to certain conditions, including providing employees with a vote in favour or against it.   Other countries ban strikes outright in certain essential industries, e.g. the US, UK, Germany and France.

Q10:   Are employers allowed to impose terms and conditions on workers?

A10: A due process must be followed as set out in the Decree, involving good faith negotiations for at least 60 days in the case of a replacement agreement.  Only after that would an employer have the right to implement new terms and conditions.  Employees would have the right to appeal to the Minister for a review of the new terms.

Q11:  Does the Decree provide for a meaningful dispute resolution process?  

A11: The Decree requires employers and workers or their representatives to exert every reasonable effort to settle disputes, and requires employers to establish a dispute resolution process as part of any collective agreement.  Therefore, the Decree empowers the workers and employers to establish their own distinct rules and procedures for resolution of their specific employment disputes. Given that the process of resolution of disputes will be tailor-made by the workers and the employers themselves, this should facilitate amicable resolution of any employment disputes between the workers and employers. Any unresolved disputes involving an issue of over F$5m may be referred to the Minister for determination.

Q12:  Some have complained that the penalties provided for in the Decree are excessive.  Does the Government believe these concerns have merit?

A12:  The point of having stiff penalties is for them to act as an effective deterrent. Rightly there are significant penalties for individuals or organisations that ignore the provisions of the Decree and attempt to disrupt operations in an essential national industry.  The impact of such illegal action could be devastating to the companies concerned and could affect tens of thousands of Fijians. There needs to be an effective deterrent against actions for personal gain that could have such impact on others and on the Fijian economy.

Q13:  What is your response to the claim that the Government has wiped out decades of advances for its workers?

A13: In support of the great strides Fijian workers have made in recent time, the Fijian Government’s labour and employment protection benefits are responsible, comprehensive and genuine.  The Fijian Government takes seriously the need to balance the well-being of Fiji’s economy and its ability to provide jobs with the intent to improve the quality of life for all Fijians and, importantly, to uphold justice and promote fundamental workers’ rights.  We do not believe these are mutually exclusive goals.  We continue to strive to ensure our body of employment and labour laws uphold our duty and commitment to the Fijian people.  Meanwhile, trade unions cannot be allowed to hold essential industries ransom by blocking changes to terms and conditions and taking damaging strike action with impunity.  

Moreover, this claim is contradictory to the Fijian Government’s demonstrated commitment.  Fiji is a member of the ILO and ratified Convention 98 in April 1974 and Convention 87 in April 2002.

Click here for the Essential National Industries (Employment) Decree 2011 (pdf)

and the Essential National Industries and Designated Corporations Regulations 2011 (pdf)