Friday, August 05, 2011

Draconian Decree & PER Restricts Union Rights in Fiji

Posted on Matavuvale.com - 04 August 2011



Australian Government News
CLAYTON, VIC, Aug. 4 -- The Hon Kevin Rudd MP, Minister for Foreign Affairs issued the following press release:

The Acting Foreign Minister, Martin Ferguson, today condemned the arrest and charging of two Fiji trade unionists, including the President of the Fiji Trade Union Council Daniel Urai.

The unionists were charged under Fiji's Public Emergency Regulations for holding a meeting with other trade unionists without a permit. Both have been released on bail and are due to appear in court on 2 September.

"This is another example of the draconian Public Emergency Regulations being used to restrict basic human freedoms. The spate of arrests and beatings in recent months are further evidence that this is a brutal regime," Mr Ferguson said.

"Australia's acting High Commissioner to Fiji today met with the acting Permanent Secretary of the Fiji Ministry of Foreign Affairs to convey Australia's concerns about the safety of Fiji workers, and the welfare of the two trade unionists. The Acting High Commissioner made it clear Australia was watching developments closely."

Australia is deeply concerned at the deteriorating situation in Fiji. Since 2006 the Bainimarama regime has abrogated the constitution; detained political leaders; sacked the independent judiciary; censored the media; and restricted meetings of civil society, including church groups.
Despite commitments to hold elections in 2014, it is not clear that the regime intends to make good on its promise.

The restriction of labour rights is part of a concerted campaign to curtail the human rights of the people of Fiji. The rights of workers in Fiji have been targeted through a series of decrees restricting labour rights, the most recent of which was aimed at essential industries.

Australia remains committed to the people of Fiji who are facing deteriorating economic conditions as well as restrictions of their human rights. Australia is the largest bilateral aid donor to Fiji. Our aid program for 2011-2012 totals $37.5m.

IHS Global Insight Daily Analysis
By Neil Ashdown  
A union leader was arrested and charged with violating Fiji's emergency regulations yesterday, after details of a controversial decree limiting the rights of unions were made public.

IHS Global Insight Perspective
Significance
Details of the Essential National Industries (Employment) Decree 2011 were first reported in the censored Fijian media yesterday (3 August), a day before two union leaders were charged with unlawful assembly.

Implications
The two events represent the latest blows in the Fijian regime's campaign against the union movement and reflect its intolerance of political competition.

Outlook
The implementation of the decree will force a broad shake-up in the Fijian union movement, with further arrests possible. In the longer term, as the regime limits avenues for expressions of discontent it risks generating broader opposition.

The Decree
The Essential Industries decree states that its purpose "is to ensure the viability and sustainability of certain industries that are vital or essential to the economy and the gross domestic product of Fiji". It is dated 25 July 2011, but details only emerged in the censored Fijian media yesterday (3 August). Some of the most significant provisions are detailed below:

What It Means
While the decree is limited to those industries "which are vital to the present and continued success of the Fiji national economy or gross domestic product or those in which the Fiji Government has a majority and essential interest" a key clause states that the designation of "essential national industry" can be extended by the prime minister, Commodore Voreqe Bainimarama, to any industry. The Fijivillage website, which first reported the details of the new decree yesterday, today reported that the government has yet to determine which industries will initially be designated "essential". Industries likely to be designated essential include lucrative exports like sugar, mahogany, and possibly water, along with sectors related to the tourism industry. Some of the provisions of the Decree apply specifically to airlines, for example.

The decree comes as no surprise; a purported draft has been circulating for months (see Fiji: 28 June 2011: ). Indeed it was this document that largely sparked the escalation in union activities; including calls for solidarity from Australian unions (see Australia – Fiji: 18 July 2011: ). In turn this prompted the government to launch a public campaign of ad hominem attacks on union leaders (see Fiji: 20 July 2011: ). Moreover, the release of the decree casts new light on the regime's previous disavowal of the purported draft. On 29 June Radio Australia ran a report based on the purported draft of the decree, the details of which match the decree now being reported in the censored Fijian media. When questioned about the document, Attorney-General Aiyaz Sayed Khaiyum stated that he would not comment "on conjectures or innuendos or decrees that who knows whoever's written it".

On the Ground
Daniel Urai and Dinesh Gounder were arrested for conducting a union meeting without a permit. Urai is president of the Fiji Trades Union Congress and Gounder is an FTUC staffer. Fiji remains under the terms of the Public Emergency Regulations (PER), a supposedly temporary measure that has been renewed since the abrogation of the constitution in 2009. On 4 August the two men were charged with unlawful assembly. Their next court hearing is set for 2 September. Felix Anthony has said that since it was not a public meeting Urai did not require a permit. A similar claim was made following a recent women's meeting that was broken up by police (see Fiji: 1 July 2011: ).

The regime has published details of fees paid to Urai, along with Anthony, when they were members of the FijiNational Provident Fund's board as part of the government's campaign to discredit the leadership of the union movement. Today, Permanent Secretary of Information Sharon Smith-Johns released a statement in which she claimed that "these unionists failed to gather support from union members overseas and are now targeting local union members in an attempt to undermine government reforms".

Not Just Unions
A parallel can be found in the regime's relationship with the Methodist Church. Since 2008 the regime has denied the Church permission to hold its annual conference and senior members have been arrested (see Fiji: 16 December 2010: ). As with the union movement, the regime accuses the Church of becoming involved in politics and, worse, opposing the regime.

Last year the regime announced that the Church would be able to hold its conference in 2011 but over a shorter period. Today it stated that the conference would be limited to three eight-hour sessions on 23-25 August. Colonel Neumi Leweni, a spokesman for the military, stated that the regime would continue to monitor the meeting. In comments reported by the Fiji Broadcasting Corporation, Colonel Leweni stated that "the only way forward" for the Methodist Church was to align itself with the government's vision of Fiji's future and to accept the military's role in Fiji's government.

Outlook and Implications
The decree sets out a wide-ranging reorganisation of the Fijian union movement. The way unions are funded, the way their representatives are elected, and who those representatives can be are all changed by the decree. It is worth noting that a regime that came to power in a military coup is imposing democratic standards on the union movement. The changes are sufficiently wide-ranging that they may provoke a reaction from international workers' groups and from unions in countries like Australia and New Zealand. More broadly, as the regime clamps down on alternative avenues for expressions of discontent it risks forcing the population to turn to other, less peaceful, means of expression.

In addition, while the new decree curtails the rights of workers, Fiji should not be seen as a haven for employers. The ongoing scuffle with the local franchise of fast-food restaurant KFC is only the most recent case of a business coming into conflict with the regime (see Fiji: 30 November 2010: ). The decree owes less to a desire to promote labour flexibility and more to efforts to cement Fiji's economic growth, which pending the 2014 election, Bainimarama is promoting as an alternative source of legitimacy for his regime.

Union Organisation: Sections 9-18 set out the process by which "bargaining units" will be permitted to elect their representatives, thereby effectively mandating the internal organisation of unions. Moreover, it grants the prime minister the authority to determine "the composition and scope" of bargaining units. In particular it requires that representatives be elected with the "validated and non-coerced written authorisation" of at least 35% of the bargaining unit, a provision which is sufficiently broad that the government could conceivably use it to overturn elections. Similarly, section 15 states that an employer may, "if it has reliable objective information and evidence" that 35% of workers in a bargaining unit do not support the representative, apply for the representative's registration to be overturned.

Clean Slate: Section 6 of the decree requires all unions to re-register under the terms of the new decree while Section 8 overturns "all existing collective agreements" between employers and unions. No Professional Union Leaders: Section 7 of the decree requires that union representatives be non-managerial employees of the corporation which they represent and establishes fines and prison sentences for failure to comply. In the short term this is likely to be the most significant provision of the decree given the number of senior union leaders who carry out their duties full time and who would therefore fall foul of this provision. Regulation of Internal 

Workers' Pay and Union Dues: Section 24 covers pay. It states that employees in designated industries do not have the right to overtime pay and removes the requirement that employers deduct union fees from workers' pay. This has already come into effect, with the deduction of union fees from civil servants' pay packets coming into effect today (4 August). 

Duty: Section 25 states that the "duty" of employers, workers, and representatives is "to avoid any interruption to commerce". 

Ban on Strikes: Section 27 states that "no job actions, strikes, sick outs, slowdowns… shall be permitted at any time for any reason". The one case in which strikes and lock outs are permitted is in the case of the failure to reach an agreement through collective bargaining after a period of 36 months. Any strike or lockout requires the prior written approval of the prime minister. Moreover, unlike employers wishing to implement a lockout, unions wishing to strike must vote for the strike "through a secret ballot verified by the [Prime] Minister". Failure to comply with these terms can result in a five-year prison sentence and fines. Subsection 5 gives the prime minister the authority to declare "any strike or lockout in any essential national industry" to be unlawful, raising the maximum prison sentence to 10 years.

The Decree Cannot Be Challenged: Section 30 states that the decree and the decisions made under it by the government and by employers (but not be workers or their representatives) cannot be challenged in any "court, tribunal, commission, or any other adjudicating body". Subsection 2 terminates any current legal challenge or proceeding against designated corporations.
Copyright 2011, IHS Global Insight Limited. All Rights Reserved.  
Dua mada na sere for dessert.
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