The Essential National Industries (Employment) Decree: AG’s Media Statement on 10th September is a Mis-use of Human Rights Principles and Law

Press Release by Dr Shaista Shameem
Former UN Special Rapporteur and Human Rights Expert; former Director and Chairperson of the Fiji Human Rights Commission.

 The enactment of the Essential National Industries (Employment) Decree No 35 of 2011 on 29th July is fundamentally inconsistent with the foundations of the Employment Relations Promulgation 2007 (ERP), and jettisons the comprehensive public consultations and consensus-building that the Employment Relations Bill involved. By so doing Decree No 35 also has the effect of expressing the State of Fiji’s disregard of the International Labour Organization’s Conventions 87 and 98 which it has ratified.

In making a public statement on 10th September 2011 that the Decree upholds fundamental rights of workers to form a union or not to form a union, and other rights contained in the International Labour Organization’s conventions, the Attorney General is mis-using human rights and using its rhetoric to justify, excuse and obfuscate the enormous in-roads that the Decree makes into the State’s human rights responsibilities nationally and obligations internationally.

The most important human rights principle is access to justice and the courts but section 30 of the Decree is intended to prevent a court from considering any application made to review it. If the Decree up-holds fundamental human rights principles, as the AG says, there was no need for section 30 of the Decree. The ultimate arbiter of a human rights challenge to any law is the Court whose jurisdiction is provided in Fiji’s Human Rights Commission Decree 2009 as being available to any person. So why not let the Court exercise its jurisdiction fully and allow people to challenge the Decree in the courts as a breach of the human rights obligations of the State?

Similarly, given the solid human rights provisions in the Employment Relations Promulgation which was drafted after extensive consultations with the people of Fiji, there was no need to enact Decree No 35 if the purpose is merely to uphold the human rights of workers of Fiji.

Decree No 35 represents a serious erosion of human rights previously enjoyed by the workers of Fiji as follows:

First, the human rights principles of ‘generality’, equality’ and ‘certainty’ required in law are violated. Decree No 35 is specific to certain industries deemed ‘essential’ at the discretion of the Minister. This violates the principle of ‘generality’ in legal drafting. Secondly, the Decree infringes the principle of ‘equality’. Some industries are isolated for special treatment without any justifiable reason- for example, why is the Fiji Broadcasting Corporation Ltd. included in the list- is it not discriminatory to include one media agency and not others? Furthermore, is FBCL included under section 2 interpretation of ‘essential industry’ (a) or (b)? Thirdly, the principle of ‘certainty’ is violated because no one knows which other industries will be included- it is done at the whim of the Minister, leaving the workers of Fiji uncertain and insecure about whether their own industries will be targeted next.

These principles of ‘generality, equality and certainty’ are central to human rights international standards for law making. They are particularly pertinent in an environment where avenues for public consultations are limited or non-existent, particularly where media censorship prevails or where there is no parliamentary process in place for public discussion and debate of proposed law.

Secondly,  Decree No 35 establishes two main public policy objectives: (i) that the new Essential National Industries’ Collective Agreements resulting from negotiations, employer’s proposal, or by determination of the Minister (sections 21-24)  can override provisions set down for reaching a Collective Agreement pursuant to the Employment Relations Promulgation 2007; and (ii) that courts, tribunals, commissions or other adjudicating bodies do not have jurisdiction to entertain in any way any proceeding which purports to challenge or question the validity, legality or propriety of Decree No 35 (section 30). 

Public policy objective (i) above effectively repeals the ERP 2007 as far as bargaining for Collective Agreements is concerned since it unilaterally imposes a process which is in opposition to the extensive ‘good faith’ foundations of the ERP. Public policy objective (ii), namely, the non-reviewability by the courts clauses, prevents a person’s access to justice. Access to the courts by the public is a common law right protected within the broader (international) right to be heard and to have a matter determined by an impartial and independent court or tribunal. This right is jettisoned in Decree No 35.

Thirdly, Decree No 35 suffers from lack of good form and style in drafting thereby making it difficult for people to understand why certain provisions are placed where they are in the Decree, therefore preventing effective human rights challenge due to utter confusion about what the Decree actually says. Rather than follow a logical sequence of subject matter the Decree’s particular topics are scattered all over. For example, clauses dealing with Collective Agreements appear in section 8 and then again, repetitively, towards the end in Part 4 Collective Bargaining Process. Similarly, section 30 (2) of the Decree seems to be in the wrong place; it should instead have been placed in that Part (Part 6) as subsection (3). In another example, section 29, giving delegated unmitigated ministerial power to the Solicitor General, and which can in any event be regarded as something of an usurpation of prerogative Cabinet power, seems to have been hastily and irrelevantly included in the middle of a Part that deals, not with powers, but with application and reviewability.

Fourthly, Decree No 35 totally conflicts with Fiji’s international obligations as well as domestic law which protect workers’ rights, specifically, freedom of association. Fiji’s obligations as a signatory and therefore as State Party to Conventions 87 and 98 of the International Labour Organization (ILO) seem to have been set aside. Fiji is a member of the United Nations and is committed to comply with the Universal Declaration of Human Rights but Decree No 35 directly compromises its obligation to respect and protect human rights, and remedy human rights violations.

In relation to the obligation to remedy violations, Decree No 35 will have an effect on the remedies available pursuant to the Human Rights Commission Decree No 11 of 2009 which is another Decree of the Government. The breach of ILO obligations and contravention of the fundamental principles contained in the Preamble of ERP 2007 represents a face-off between Decree No 11 (Human Rights) and Decree No 35, both of which are products of the same Government. Under the circumstances, Courts can at least consider whether there could be merit in avoiding the seemingly set-in-stone non-reviewability clause in Decree No 35 to examine, as a matter of interpretation, whether Decree No 35 and Decree No 11 are incompatible and, if so, what this will mean for the survival of the only domestic law on human rights remaining in the country.

Fifthly, the definition of ‘good faith’ which is also contained in the ERO 2007, is now ambiguous and will mean different things to workers and employers respectively. The term has become mere rhetoric and contradictory even within the Decree itself. For example, Section 20 of the Decree contradicts the term ‘good faith’ in section 23 (2) where the Employer has the right to immediately and unilaterally force re-negotiation of all its existing collective agreements. Similarly, the purpose, principles and objectives of Decree No 35 as expressed in sections 3, 4 and 5 do not match the provisions in the rest of the Decree. A good example is section 5 (c) which states that the Decree is ‘to provide for the complete independence of employers and workers in the matter of self-organization to carry out the purposes of this Decree’ but which is not consistent with section 23 (1) where the employer’s self-organization supercedes the workers’ self-organization. Further, the word ‘self-organization’ is not defined so what the term means in these two provisions is unclear.

Sixthly, the Decree reveals a conflict of interest between the Government drafting a Decree as the Government and the Government drafting the same Decree as an Employer. It is favouring itself in the Decree to the detriment of its employees.

One problem that the Decree will face is in relation to the recent decision of the Employment Relations Court in the case of Construction Energy and Timber Workers Union of Fiji and PAFCO Employees Union v Fiji Electricity Authority and Pacific Fishing Company Ltd ERCA No 11 of 201. The Decree was gazetted on July 29th but the decision was delivered on August 24th 2011. The Court determined that the ERP applied to all Fiji’s people and that only express words specifically excluding application by name of the entity would be accepted by the Court (paragraph 43 of the decision). It would be interesting to have this decision interpretively tested in relation to what has been listed for the purposes of Decree No 35.

The Decree is also flying in the face of definitions of ‘essential service’ decided by the ILO. The meaning given to the term ‘essential service’ is that which endangers the life, personal safety or health of the whole or part of the population. Compare this with the definitions of essential national industry in Decree No 35 as being those which are (a) 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; and (b) declared as essential national industry by the Minister under Regulations made pursuant to the Decree. There is no similarity between the meaning of ‘essential service’ in ILO provisions and that of ‘essential national industry’ in Decree No 35. If the drafters are attempting to validate the enactment of a new law on ‘essential national industry’ by masking it behind the ILO- defined ‘essential service’, this would be pure deception on their part.

The ILO Committee on Freedom of Association has considered that the following industries constitute ‘essential services’ in the strict sense of the term and, in relation to strike action, the prohibition to strike pertain: sectors such as hospitals, electricity services, water supply services, telephone service, air traffic control (ILO 1996d para 545), all of which also conform to Schedule 7 of ERP 2007.

The Committee has considered that, in general, the following do not constitute essential services: radio and television, the petroleum sector, ports (loading and unloading), banking, computer services for the collection of excise duties and taxes, department stores, pleasure parks, the metal sector, the mining sector, transport generally, refrigeration enterprises, hotel services, construction, automobile manufacturing, aircraft repairs, agricultural activities, the supply and distribution of foodstuff, the Mint, the government printing service, the state alcohol, tobacco and  salt monopolies, the education sector, metropolitan transport, and postal services. This list is not exhaustive since the Committee can only make a determination based on specific complaints.

The list including or excluding certain sectors has been compiled only in relation to areas and sectors where strikes are permitted or not permitted. There is no ILO rule restricting the formation of trade unions, or collective bargaining, or registration of trade unions, or appointment or election of representatives for the purposes of carrying on the business of unionism, in essential services or sectors. The provisions in Decree No 35 calling a group of employees a ‘bargaining unit’ and not a trade union, directing elements for registration, and restricting appointment or election of officials to those involved in the industry, is an enormous departure from Fiji’s international commitment to freedom of association and collective bargaining. Decree No 35 recalls the old ‘Master and Servant’ type of relationship reminiscent of the Indenture Labour System.

The fact that the right to strike is prohibited in some sectors requires a state to put in place adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented (ILO 1996 d para 547). Impartiality of the conciliation or arbitration institutions towards both employers and employees is a strict requirement. In Fiji these institutions are the Mediation Unit, the Employment Relations Tribunal and the Employment Relations Court. However, Decree No 35 ousts the jurisdiction of these institutions in disputes. And, contrary to the ILO Freedom of Association Committee’s statement on the need for impartiality of the institutions determining issues pertaining to the Freedom of Association Convention which Fiji has ratified, Decree No 35 also gives sole responsibility for the final binding determination of any dispute between workers and their employer (including Government employer) in the designated corporation to the Prime Minister himself.

In consequence, with the definition of essential national industry provided by Decree No 35, which is a departure from the meaning and scope of essential service used in Part 19 of the ERP 2007 derived from the ILO, that is, only that which relates to strike action and lockouts, the climate for human rights protection of employees engaged in industries to be defined in a discretionary way as an essential national industry has been transformed. Indeed, if the Minister wanted to he could include all the industries of Fiji in his list of essential national industries. His decision to list or not list an industry as an essential national industry is completely discretionary. This constitutes contravention of jurist A.V. Dicey’s first principle of rule-making – ‘law prevails over arbitrariness and discretionary power’. The ILO Conventions 87 and 98 could not possibly permit such a radical departure from Fiji’s obligations to international law.

Decree No 35 of 2011 contravenes both internal human right law and international obligations of the State of Fiji.

For the Attorney General to state that Decree No 35 up-holds human rights principles is an absolute mis-use of the important concept of human rights. If that is his claim he ought to have it tested in a court of law, and let the court decide.