SUBMISSION TO STANDING COMMITTEE ON JUSTICE, LAW ANDHUMAN RIGHTS ON EMPLOYMENT RELATIONS (AMENDMENT)BILL NO 10 OF 2015

Introduction

We represent the Fiji Bank and Finance Sector Employees Union (FB&FSEU) andthis morning we are represented by senior officials of the union who are employeesand workers from the different organisation we represent today.

FB&FSEU had around 1800 members as at August 2011 before the introduction ofthe ENI decree employed in both banking and non-bank financial institutions in Fiji. Itbegan in the early sixties as an informal grouping of local bank officers concernedwith discriminatory pay and conditions in an industry then dominated by expatriatesat all levels of employment.

The Union was registered as the Fiji Bank Officers Association as a trade union on12 June 1968 under the Trade Unions Act. In 1979 the Unions name was changedto Fiji Bank Employees Union to truly reflect its membership of all levels of bankingworkers. Recognizing the growth in the range of organizations apart from banks thatnow provided financial services in Fiji and that workers in where enterprises largelyremained unorganized in 1994 the Union adopted changes to its Constitution toallow wider representation and also changed its name to Fiji Bank & Finance SectorEmployees Union.

The Union now represents workers in institutions in banking, insurance, finance,information technology and related industries and including their subsidiaries.Currently we represent workers from 18 different organisations.

In September 2011 the Financial industry was declared essential and followingcorporations were designated under the decree:-

i) Australia & New Zealand Banking Groupii) Bank Of Barodaiii) Bank of South Pacificiv) Westpac Banking Corporation

Bank ProfitName 2014 after tax

($000)2013 after tax ($000)

ANZ 40,247 49,170WBC 47,161 50,108BOB 6,415 5,675BSP 20,560 8,663

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The four Banks comprised of 70% of the membership of the entire union. Thesemembers were effectively barred from seeking direction representation from theunion on any grievance or dispute with the employer.

All matters which were pending in court, tribunal or any other adjudicative boardwere issued with Certificate of Termination and the matter was barred fromproceeding to its conclusion.

Our union together with Fiji Islands Confederations of Trade Unions lodged acomplaint with the International Labour Organisation for serious violation ofworker and trade union rights guaranteed under ILO Conventions 87 and 98, both ofwhich is ratified by Fiji.

Freedom of Association and Protection of the Right to OrganiseConvention (No. 87) Article 2 Workers and employers, without distinction whatsoever, shall have the rightto establish and, subject only to the rules of the organisation concerned, tojoin organisations of their own choosing without previous authorisation.

Bill No 10 Section 189 Bargaining Units and workers

(2) If a majority of the workers in a Bargaining Unit formed or established orregistered under the Decree decide, through secret ballot, to join a trade unionestablished under this Promulgation, then that Bargaining Unit shall cease to existand the workers shall, for the purposes of this Part, be represented by that tradeunion.

Bill no 10 Section 189 is in contravention of Convention No 87 where byauthorisation is required by 50% of workers in a bargaining union to ceaseoperations and join the industry union which used to represent them pre ENI.

This provision makes it logistically difficult for workers to rejoin there industry unionand strongly favours the continuation Bargaining Units at workplaces.

Article 8 part 2The law of the land shall not be such as to impair, nor shall it be so applied asto impair, the guarantees provided for in this Convention.

The Law of the land in this case Bill No 10 shall not have any provisions whichshould interrupt, hinder or purposely delay the orderly return of workers rightsviolated under the ENI decree.

Article 11Each Member of the International Labour Organisation for which thisConvention is in force undertakes to take all necessary and appropriatemeasures to ensure that workers and employers may exercise freely the rightto organise

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Fiji as a member of the International Labour Organisation should not by theprovisions of Bill No 10 prohibit or impose a preconditions to workers in respect oftheir right to organise and join a union of their free choice.

Right to Organise and Collective Bargaining Convention (No. 98)

1. Workers shall enjoy adequate protection against acts of anti-uniondiscrimination in respect of their employment.

2. Such protection shall apply more particularly in respect of acts calculated to--(a) make the employment of a worker subject to the condition that he shall notjoin a union or shall relinquish trade union membership;

Bill No 10 Section 190Bargaining Units and workers

189.(1) Subject to subsection (2), a Bargaining Unit formed or established orregistered under the Decree shall continue to operate under this Part and shall bedeemed to be a trade union for the purposes of this Part and shall be entitled toengage in collective bargaining for the workers who are part of the Bargaining Unitand to lodge trade disputes to the Arbitration Court on behalf of those workers.

The provision allows for workers to decide to join a union of their choice and wewelcome that progress in the amendments. What is of concern to us is therequirement of 50% of workers to vote on secret ballot to rejoin there industry union,a union which they were forced to leave after the introduction of the ENI decree in2011.

Committee on Freedom of Association*

One of the ILOs principal permanent bodies is the Committee on Freedom ofAssociation. The Committee is a tripartite body which adjudicates complaintssubmitted by governments, employers and unions from its members states allegingbreaches of the provisions of the two primary ILO conventions dealing with freedomof association: the Freedom of Association and Protection of the Right to OrganizeConvention, 1948 (No. 87) and the Right to Organize and Collective BargainingConvention, 1949 (No. 98). These two conventions are the cornerstone documentsin international law on the freedom to associate in the workplace. They establish thearchitecture for the protection of the associational freedom, and authorize the ILO tocreate structures, programs, processes and committees to bring legal and socialvitality to the right.

The Committee on Freedom of Association is the most influential adjudicative bodyin the world today with respect to shaping the meaning of freedom of association asit pertains to rights at work. Its interpretations of Convention No. 87 have beendescribed as the cornerstone of the international law on trade union freedom andcollective bargaining, a definition favourably cited by the Supreme Court of Canada.

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The principles and interpretations of the Committee have been favourably cited andwidely adopted by courts, tribunals and other adjudicative boards around the world.

The Committee on Freedom of Association has accepted that the following servicescan be classified as essential services in the strict sense of the term, such that theright to strike could be restricted or prohibited, based on a minimal and proportionalanalysis:

the hospital sector electricity services water supply services telephone services police and armed forces fire-fighting services prison services the provision of food to school age students and the cleaning of schools air traffic control

The Committee have given essential services a specific meaning: those serviceswhere the withdrawal of labour would result in a clear and imminent threat to the life,personal safety or health of the whole or part of the population.

The Committee on Freedom of Association has ruled, on other occasions, that thefollowing services are not considered to be essential services in the strict sense ofthe term, and prohibitions placed by governments on the right of workers in thesesectors have not been justified:

petroleum sector radio and television Ports Banking/Finance computer services for the collection of excise duties and taxes department stores and pleasure parks the metal and mining sectors

*(Source -Expert Affidavit on Essential Services Professor Michael Lynk The University of Western Ontario)

We surly by no means are a clear and imminent threat to the life, personal safety orhealth of the Nation.

Finance sector workers form the middle class of the society and are peaceful lovingcitizens who go about their daily routine of earning a living, raising their family,paying their debt and also contributing to the well being of our society in manydifferent ways.

New Inclusions

The definition of essential service and industry or essential services and industries in Bill No 10 means a service listed in Schedule 7 and includes those essential national industries declared and designated corporations or designated

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companies designated under the Decree, and for the avoidance of doubt, shall also include

(a) the Government; (b) a statutory authority; (c ) a local authority, including a city council, town council or rural authority; (d) Government commercial company, as prescribed under the Public Enterprise Act 1996; (e ) a duly authorised agent or manager of an employer; and (f) a person who owns, or is carrying on, or for the time being responsible for themanagement or control of a profession, business, trade or work in which a workeris engaged.

By designating corporation, companies declared under the ENI decree as a definitionof Essential Services and Industries clearly compromises the progressivenesssought in Bill No 10. This demonstrates that all industries declared under theprovisions of ENI decree are essential and as such the Finance industry will continueas essential without any solid reasoning or justification.

We also would like to advise the committee that by designating the entiregovernment and government owned entities as essential, five (5) more of ouremployer organisation include in the list. They are:

1) Housing Authority2) Public Rental Board 3) Fiji Development Bank4) Sugar Cane Growers Fund

The workers of these organisations are members of our union. We as a union havesuccessfully represented our members in these organisation and we maintain arespectable relationship with its management.

What we recommend to the Committee:

1) Workers should be allowed to freely choose a union of their choice withoutseeking any authorizations derived out of any present or previous law.

2) All worker in the country should a have right to redress within the judicialsystem.

3) Workers should also be allowed the freedom to seek legal advice andrepresentation.

4) The Finance industry should specifically be removed from the essentialIndustries and corporations list since there is no justification.

5) Employment Relations Advisory Board should be the only body to decide onany new inclusions to Schedule 7.

6) Reinstate all legal matters cancelled or terminated due to the provision of ENI.7) Reinstatement of collective agreements that existed prior to the ENI Decree. These

collective agreements were a result of decades of struggle for workers. Without thisprovision, many workers would be required to start afresh.

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Matters Terminated by the Register of Employment Relations Court &Tribunal Pursuant to Section 30 and Section 30(4) Essential National Industries Decree.

No. UNION/EMPLOYEE

EMPLOYER

Dispute No: 52/2008 FB&FSEU WBCDispute No:37/2008 FB&FSEU WBCDispute No:42/2009 FB&FSEU WBCDispute No:63/2010 FB&FSEU WBCDispute No:27/2010 FB&FSEU WBCMiscellaneous No:33/2011 FB&FSEU WBCDispute No:78/2008 FB&FSEU WBCDispute No:28/2008 FB&FSEU BOBDispute No:19/2011 FB&FSEU PS LABOUR & BOBDispute No:31/2010 FB&FSEU BOBDispute No:45/2010 FB&FSEU BOBDispute No:57/2010 FB&FSEU BOBDispute No:60/2010 FB&FSEU BOBGrievance No:18/2011 Mariana Young ANZGrievance No:19/2011 Eseta Edwards ANZGrievance No:32/2010 Keshwan Nand ANZGrievance No:129/2010 Tuimasi

NaisorowaleANZ

Dispute No:62/2010 FB&FSEU ANZGrievance No: 109/2009 Ashika A.V.Devi ANZGrievance No:108/2009 Surendra Singh ANZDispute No: 35/2008 FB&FSEU ANZDispute No:57/2008 FB&FSEU ANZDispute No:63/2008 FB&FSEU ANZGrievance No:07/2010 Sanjeev Sumer CNBGrievance No:112/2010 Asesela Kana BSPGrievance No:118/2010 Bale Nakabea BSPGrievance No:83/2009 Mohammed Zahim CNBGrievance No:44/2009 Dorothy Ah Yuk COLONIAL LIFEGrievance No:16/2009 Shailendra Roy CNBGrievance No:28/2009 Keresi Hanfakaga COLONIAL LIFEDispute No:30/2010 FB&FSEU COLONIAL GROUPGrievance No:149/2010 Zarah Ithiel BSP

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Conclusion We welcome the discussion by government to repeal the ENI decree and we areconfident that with the support of this committee Bill NO 10 will be further amendedto meet the above recommendations and we wish to see this document as a livingexample of free and fair employment relations society in the country.

Bill No 10 should be a progressive Bill rather than a being a regressive Bill. Anyreform to the Employment Relations Promulgation should be to provide liberty toworkers from any form of prohibition.

Sailesh NaiduNATIONAL SECRETARY FIJI BANK & FINANCE SECTOR EMPLOYEES UNION

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