SUBMISSION TO STANDING COMMITTEE ON JUSTICE, LAW AND

HUMAN RIGHTS ON EMPLOYMENT RELATIONS (AMENDMENT)

BILL NO 10 OF 2015
Introduction
We represent the Fiji Bank and Finance Sector Employees Union (FB&FSEU) and
this morning we are represented by senior officials of the union who are employees
and workers from the different organisation we represent today.
FB&FSEU had around 1800 members as at August 2011 before the introduction of
the ENI decree employed in both banking and non-bank financial institutions in Fiji. It
began in the early sixties as an informal grouping of local bank officers concerned
with discriminatory pay and conditions in an industry then dominated by expatriates
at all levels of employment.
The Union was registered as the Fiji Bank Officers Association as a trade union on
12 June 1968 under the Trade Unions Act. In 1979 the Unions name was changed
to Fiji Bank Employees Union to truly reflect its membership of all levels of banking
workers. Recognizing the growth in the range of organizations apart from banks that
now provided financial services in Fiji and that workers in where enterprises largely
remained unorganized in 1994 the Union adopted changes to its Constitution to
allow wider representation and also changed its name to Fiji Bank & Finance Sector
Employees 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 following
corporations were designated under the decree:i)
ii)
iii)
iv)

Australia & New Zealand Banking Group

Bank Of Baroda
Bank of South Pacific
Westpac Banking Corporation

Name
ANZ
WBC
BOB
BSP

Bank Profit
2014 after tax
2013 after tax
($000)
($000)
40,247
49,170
47,161
50,108
6,415
5,675
20,560
8,663

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The four Banks comprised of 70% of the membership of the entire union. These
members were effectively barred from seeking direction representation from the
union on any grievance or dispute with the employer.
All matters which were pending in court, tribunal or any other adjudicative board
were issued with Certificate of Termination and the matter was barred from
proceeding to its conclusion.
Our union together with Fiji Islands Confederations of Trade Unions lodged a
complaint with the International Labour Organisation for serious violation of
worker and trade union rights guaranteed under ILO Conventions 87 and 98, both of
which is ratified by Fiji.

Freedom of Association and Protection of the Right to Organise

Convention (No. 87)
Article 2
Workers and employers, without distinction whatsoever, shall have the right
to establish and, subject only to the rules of the organisation concerned, to
join 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 or

registered under the Decree decide, through secret ballot, to join a trade union
established under this Promulgation, then that Bargaining Unit shall cease to exist
and the workers shall, for the purposes of this Part, be represented by that trade
union.
Bill no 10 Section 189 is in contravention of Convention No 87 where by
authorisation is required by 50% of workers in a bargaining union to cease
operations and join the industry union which used to represent them pre ENI.
This provision makes it logistically difficult for workers to rejoin there industry union
and strongly favours the continuation Bargaining Units at workplaces.
Article 8 part 2
The law of the land shall not be such as to impair, nor shall it be so applied as
to impair, the guarantees provided for in this Convention.
The Law of the land in this case Bill No 10 shall not have any provisions which
should interrupt, hinder or purposely delay the orderly return of workers rights
violated under the ENI decree.
Article 11
Each Member of the International Labour Organisation for which this
Convention is in force undertakes to take all necessary and appropriate
measures to ensure that workers and employers may exercise freely the right
to organise
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Fiji as a member of the International Labour Organisation should not by the

provisions of Bill No 10 prohibit or impose a preconditions to workers in respect of
their 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-union

discrimination 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 not
join a union or shall relinquish trade union membership;

Bill No 10 Section 190

Bargaining Units and workers
189.(1) Subject to subsection (2), a Bargaining Unit formed or established or
registered under the Decree shall continue to operate under this Part and shall be
deemed to be a trade union for the purposes of this Part and shall be entitled to
engage in collective bargaining for the workers who are part of the Bargaining Unit
and 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 we
welcome that progress in the amendments. What is of concern to us is the
requirement 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 in
2011.

Committee on Freedom of Association*

One of the ILOs principal permanent bodies is the Committee on Freedom of
Association. The Committee is a tripartite body which adjudicates complaints
submitted by governments, employers and unions from its members states alleging
breaches of the provisions of the two primary ILO conventions dealing with freedom
of association: the Freedom of Association and Protection of the Right to Organize
Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining
Convention, 1949 (No. 98). These two conventions are the cornerstone documents
in international law on the freedom to associate in the workplace. They establish the
architecture for the protection of the associational freedom, and authorize the ILO to
create structures, programs, processes and committees to bring legal and social
vitality to the right.
The Committee on Freedom of Association is the most influential adjudicative body
in the world today with respect to shaping the meaning of freedom of association as
it pertains to rights at work. Its interpretations of Convention No. 87 have been
described as the cornerstone of the international law on trade union freedom and
collective 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 and
widely adopted by courts, tribunals and other adjudicative boards around the world.
The Committee on Freedom of Association has accepted that the following services
can be classified as essential services in the strict sense of the term, such that the
right to strike could be restricted or prohibited, based on a minimal and proportional
analysis:
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 services
where 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 the
following services are not considered to be essential services in the strict sense of
the term, and prohibitions placed by governments on the right of workers in these
sectors 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 or
health of the Nation.
Finance sector workers form the middle class of the society and are peaceful loving
citizens 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 many
different 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 the
management or
control of a profession, business, trade or work in which a worker
is engaged.
By designating corporation, companies declared under the ENI decree as a definition
of Essential Services and Industries clearly compromises the progressiveness
sought in Bill No 10. This demonstrates that all industries declared under the
provisions of ENI decree are essential and as such the Finance industry will continue
as essential without any solid reasoning or justification.
We also would like to advise the committee that by designating the entire
government and government owned entities as essential, five (5) more of our
employer organisation include in the list. They are:
1)
2)
3)
4)

Housing Authority
Public Rental Board
Fiji Development Bank
Sugar Cane Growers Fund

The workers of these organisations are members of our union. We as a union have
successfully represented our members in these organisation and we maintain a
respectable relationship with its management.
What we recommend to the Committee:
1) Workers should be allowed to freely choose a union of their choice without

seeking any authorizations derived out of any present or previous law.

2) All worker in the country should a have right to redress within the judicial
3)
4)
5)

system.
Workers should also be allowed the freedom to seek legal advice and
representation.
The Finance industry should specifically be removed from the essential
Industries and corporations list since there is no justification.
Employment Relations Advisory Board should be the only body to decide on
any new inclusions to Schedule 7.
Reinstate all legal matters cancelled or terminated due to the provision of ENI.

6)
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 this
provision, 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/EMPLOYE
E
Dispute No: 52/2008
FB&FSEU
Dispute No:37/2008
FB&FSEU
Dispute No:42/2009
FB&FSEU
Dispute No:63/2010
FB&FSEU
Dispute No:27/2010
FB&FSEU
Miscellaneous No:33/2011 FB&FSEU
Dispute No:78/2008
FB&FSEU
Dispute No:28/2008
FB&FSEU
Dispute No:19/2011
FB&FSEU
Dispute No:31/2010
FB&FSEU
Dispute No:45/2010
FB&FSEU
Dispute No:57/2010
FB&FSEU
Dispute No:60/2010
FB&FSEU
Grievance No:18/2011
Mariana Young
Grievance No:19/2011
Eseta Edwards
Grievance No:32/2010
Keshwan Nand
Grievance No:129/2010
Tuimasi
Naisorowale
Dispute No:62/2010
FB&FSEU
Grievance No: 109/2009
Ashika A.V.Devi
Grievance No:108/2009
Surendra Singh
Dispute No: 35/2008
FB&FSEU
Dispute No:57/2008
FB&FSEU
Dispute No:63/2008
FB&FSEU
Grievance No:07/2010
Sanjeev Sumer
Grievance No:112/2010
Asesela Kana
Grievance No:118/2010
Bale Nakabea
Grievance No:83/2009
Mohammed Zahim
Grievance No:44/2009
Dorothy Ah Yuk
Grievance No:16/2009
Shailendra Roy
Grievance No:28/2009
Keresi Hanfakaga
Dispute No:30/2010
FB&FSEU
Grievance No:149/2010
Zarah Ithiel

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EMPLOYER
WBC
WBC
WBC
WBC
WBC
WBC
WBC
BOB
PS LABOUR & BOB
BOB
BOB
BOB
BOB
ANZ
ANZ
ANZ
ANZ
ANZ
ANZ
ANZ
ANZ
ANZ
ANZ
CNB
BSP
BSP
CNB
COLONIAL LIFE
CNB
COLONIAL LIFE
COLONIAL GROUP
BSP

Conclusion
We welcome the discussion by government to repeal the ENI decree and we are
confident that with the support of this committee Bill NO 10 will be further amended
to meet the above recommendations and we wish to see this document as a living
example 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. Any
reform to the Employment Relations Promulgation should be to provide liberty to
workers from any form of prohibition.

Sailesh Naidu
NATIONAL SECRETARY
FIJI BANK & FINANCE SECTOR EMPLOYEES UNION

Fiji Bank & Finance Sector Employees Union

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