BEFORE THE UNITED STATES

TRADE REPRESENTATIVE

PRE-HEARING BRIEF
ON THE PETITION TO REMOVE

FIJI

FROM THE LIST OF ELIGIBLE BENEFICIARY DEVELOPING COUNTRIES

PURSUANT TO SECTION 19 U.S.C. 2462(d) OF THE GENERALIZED SYSTEM OF
PREFERENCES (GSP)

Filed by

THE AMERICAN FEDERATION OF LABOR

& CONGRESS OF INDUSTRIAL ORGANIZATIONS (AFL-CIO)

JANUARY 4, 2016

Information Required Pursuant to 15 CFR 2007

A. Party Submitting Petition:
AFL-CIO, 815 16th St., N.W., Washington, D.C. 20006
Contact: Cassandra Waters ph: (202) 637-5244 / fax: (202) 637-5325
This pre-hearing brief also constitutes a request to appear at the hearing and is in
response to the Federal Register notice dated November 25, 2015, regarding countryspecific docket number USTR-2013-0012.
B. Country Subject to Review:
Fiji
C. Section of Law Warranting Review
19 U.S.C. 2462(c)(7)
D. Basis for Petition:
The Government of Fiji has not taken steps to afford internationally recognized worker
rights, including the right of association and the right to organize and bargain
collectively. Instead, the government continues to enact new legislation that further
restricts labor rights. This document should be read as a supplement to all prior filings
and testimony.
Introduction
Since taking power in a 2006 coup dtat, Commodore Bainimarama has systematically restricted
and denied internationally recognized worker rights in both law and practice. As detailed in the
original petition in this case and subsequent filings and testimony, the interim Government of Fiji
has issued a series of decrees that severely curtail or outright prohibit union activities. The
International Labor Organization (ILO) has detailed extremely serious and systematic violations
of worker rights in practice, including harsh beatings, threats, arrests and surveillance.
The ILO has tried to engage in a constructive dialogue with the regime to no avail. In early
October 2014, the Government of Fiji finally allowed a Commission of Inquiry from the ILO to
enter the country, having ejected a previous mission two years earlier. The Commission verified
numerous allegations of serious and widespread violations.1 Unfortunately, subsequent attempts
to address the situation have been met with delays, obfuscation, and continued attempts by the
Government of Fiji to subvert worker rights.
1

ILO Mission Report, online at http://www.ilo.org/wcmsp5/groups/public/---ed_norm/--relconf/documents/meetingdocument/wcms_316836.pdf.

In March 2015, the Government of Fiji signed a Tripartite Agreement with Fijian social partners
during a Governing Body session of the ILO, where it committed to revising Fijis labor laws. 2
However, the government failed to honor any of the commitments in this agreement. Instead, the
Government has continued to enact new legislation that prevents workers from exercising core
rights, expanding and codifying existing restrictions promulgated through military decrees.
Workers and union leaders continue to face harassment, intimidation and abuse for trying to
exercise their rights.
For years, the Government of Fiji has utterly failed to take steps to afford workers their
internationally recognized worker rights, as required by 19 U.S.C. 2462(c)(7). Fiji, therefore,
should be removed from the list of countries eligible for GSP benefits.
I.

Fiji Restricts Internationally Recognized Worker Rights in Law

A. 2013 Constitution

As we have detailed in previous briefings and testimony, Fijis constitution contains serious
restrictions on worker rights and other fundamental rights. The Constitution, in effect since
September 2013,3 was unilaterally drafted by the Prime Minister without consultations or input
from the Constituent Assembly, the body originally charged with reviewing a new constitution
or civil society.
Articles 19 and 20 include broad exceptions to the rights to association and collective bargaining,
including the right to join a union or strike.4 The Constitution also places limits on the right to
freedom of expression, including political speech.5 The expansive language leaves the door open
for permanent codification of many of the restrictions imposed by decree over the last ten years.
B. Essential National Industries & Designated Corporations (Amendment) (No. 2)
Regulations of 2013
In December 2013, the government revised the Essential National Industries decree. As detailed
in previous submissions, this decree prohibits all strikes and gives the government broad,
discretionary powers to refuse to register unions and cancel union registrations. It also voided
existing collective bargaining agreements and allowed employers to impose unilateral contract
terms on employees, in industries and companies the government has deemed essential. The
amendment broadened the industries this decree applies to, specifically enumerating pine;
mahogany; Fire Prevention Services Ltd., Local Government; and Airports Fiji Limited.

Tripartite Agreement, online at http://www.ilo.org/wcmsp5/groups/public/---dgreports/--dcomm/documents/genericdocument/wcms_357269.pdf.

3
See Human Rights Watch, Fiji: Revise Draft Constitution to Protect Rights, September 4, 2013, available at
http://www.hrw.org/news/2013/09/04/fiji-revise-draft-constitution-protect-rights.
4
ILO Committee of Experts, Observations on Convention 87, Fiji, 2015,
http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:3189880
5
Mission Report, p. 18.

Expanding the decree has decimated existing labor unions. For example, all the companies in the
pine industry were unionized. Workers at the Tropik Wood Industries had commenced a secret
ballot for industrial action in support of their Log of Claims for 2013, which was called to a halt
by the Ministry of Labor, citing the Decree. About 130 of the 190 workers had voted and all votes
supported industrial action. Company management then issued a memorandum to all employees
advising them that there was no longer a union in the company and that union officials no longer
had any authority to represent them.
The Attorney General made clear that the purpose of the decree was to eliminate the union, stating
[w]e hope now that employees are given more control over their own work environment by
being able to negotiate directly with the employers rather than having some outside trade unions
coming in and making unreasonable claims things would improve.6 Both the ILO Governing
Body7 and the ILO Committee of Experts8 have called on the government to repeal this decree.9
C. Employment Relations Amendments Act of 2015
In March 2015, the Government of Fiji signed a tripartite agreement to amend its labor laws to
be consistent with ILO Convention 87, in full consultation with social partners (labor and
business). The agreement stated that the existing Employment Relations Promulgation (ERP),
while imperfect, would be the primary legislation governing labor management relations in Fiji.
An independent review of the law was to be conducted by the Employment Relations Advisory
Board (ERAB). The agreement required the government of Fiji to restore check-off facilities for
union dues in the public sector. The agreement established a timeline, with the government and
the social partners required to submit a joint implementation report to the ILO in June, followed
by presentation of the revised law to Parliament in August 2015, to be implemented by the end
of October 2015.
The government has failed to comply with any of the terms of that agreement. The government
never engaged in any meaningful consultation with worker or employer representatives, and
instead unilaterally passed an amended ERP in July 2015. The new ERP codifies some of the
worst provisions of the decrees imposed in previous years, including the Essential National
Industries Decree. The new ERP is far out of compliance with the right of association, an
internationally recognized worker right (19 U.S.C. 2467(4)(a)). Among the many reasons are
the following:
1. No remedy for workers whose unions were de-registered and whose agreements were
abrogated

Farisha Ahmed, Fiji Sun, Pay Rise, Dec 19, 2013, online at http://fijisun.com.fj/2013/12/19/pay-rise-5/
ILO Governing Body Resolution on the Situation in Fiji, November 2012, online at
http://www.ilo.org/gb/decisions/GB316-decision/WCMS_193325/lang--en/index.htm
8
Observations on Convention 87, Fiji, 2015, supra fn 6, (The Committee therefore urges the Government to give
serious consideration to the full abrogation of the ENID along the lines supported by the social partners when last
examining it in the tripartite Employment Relations Advisory Board (ERAB) subcommittee and to provide
information on all developments in this regard.)
9
Not all of the essential industries which were previously covered by the ENI Decree are essential services in
the meaning of the ILO principles.
6
7

The Essential National Industries Decree deregistered several trade unions and abrogated existing
collective bargaining agreements. The new ERP does nothing to solve these legacy issues, and as
discussed below instead cements the problematic use of bargaining units as a parallel structure.
This is a step backwards for internationally recognized worker rights.
2. Non-union bargaining units are promoted as an alternative to trade unions
Under the Essential National Industries Decree, all unions with under 75 members were
completely eliminated. Those with over 75 members were converted into bargaining units that
were subject to a number of restrictions, including being forbidden from having contact with
outside unions.
Instead of eliminating these bargaining units, the new ERP maintains these structures and actively
promotes them over trade unions. Bargaining units appear to be exempt from the extensive
registration, governance and compliance regime in Part 14 of the ERP (Section 116-140) that
applies to trade unions. They are also significantly weaker than unions. Bargaining units are
apparently not covered by Part 15 of the ERP, which relates to the rights and liabilities of the
trade unions. This means they do not have the right to own property, access workplaces to discuss
representational issues or recruit members, and are not protected by constraints on civil liability
for acts in furtherance of a labor dispute. Members of bargaining units who are subject to acts of
anti-union discrimination do not seem to fall within the scope of anti-discrimination provisions
elsewhere in the ERP. In short, the ERP denies to all members of bargaining units fundamental
elements essential to the exercise of internationally recognized worker rights, hamstringing
worker efforts to freely associate, organize and collectively bargain.
Further, a bargaining unit by its very nature does not embody the democratic structures
established in trade union constitutions which outline the rules of officer elections, general
assemblies and engagement with its membership on critical issues. It is not clear how a bargaining
unit ensures that its engagement with the employer reflects the interests of the workers, or guards
against employer capture, particularly since establishing a bargaining unit is subject to far less
oversight and requirements.
The ERP makes it difficult for unions that were forcibly converted to bargaining units under the
Essential National Industries to revert to full trade union status. Section 189(2) only allows
workers in existing bargaining units to join a trade union if a majority of the workers in the
bargaining unit as a whole vote in favor of joining a trade union, rather than a majority of those
voting. Under Section 119(2) of the ERP, a group of seven or more workers may form a new
trade union, but workers in existing bargaining units appear not to have that right. These
provisions narrow the rights of workers to freely join and form trade unions.
Further, all officers, executives, representatives and members in a bargaining unit are required to
be workers at the enterprise. This deprives workers of the opportunity to elect full time,
experienced trade union leaders, in violation of ILO Convention 87.10 Bargaining unit
10

See CFA Digest of Decisions 407, finding, The requirement of membership of an occupation or establishment
as a condition of eligibility for union office are not consistent with the right of workers to elect their
representatives in full freedom.

representatives are required to go into negotiations with management alone, where they are up
against, as the ILO mission concluded, management representatives and hired lawyers
apparently much better equipped for such dialogue; thus resulting in a severe imbalance of power
in the bargaining process, not to mention the fear of reprisal that accompanies employee
bargaining representatives who consider that their jobs may be in jeopardy. Bearing in mind the
testimony that court cases concerning [essential industry] companies [was] terminated on the
basis that the Decrees provisions do not allow for judicial review, the mission considers that
such fears are fully comprehensible.
With respect to bargaining units, the ILO mission further found:
87. The mission noted that none of the bargaining units with whom it met had led
it to understand that the workers were better off under the ENID, had better
working relations or had achieved major benefits that unions had been unable to
negotiate. To the contrary, the bargaining units all referred to a general strategy
of simply trying to maintain terms and conditions that had been previously agreed
with the unions, while any changes proposed by the employer had to be accepted
given their unequal force and capacity. They all spoke about the importance of
having external assistance at the bargaining table not only for their knowledge
and expertise, but also due to the effective protection of outsiders from any form
of retribution. They highlighted the importance of this last element given the bar
on judicial review in the named industries.
88. All the bargaining unit representatives and concerned unions met expressed
their desire to be brought back under the scope of the Employment Relations
Promulgation. The employers also considered that the Promulgation was the most
appropriate framework for constructive labour relations in the country, while
some further amendments to that text might be apposite.11
The new ERP, in maintaining the bargaining unit concept, has further weakened the ability of
workers to exercise their internationally recognized rights and entrenched inferior structures.
3. The ERP further Expands the Definition of Essential Industries to deny more workers
their fundamental rights
The ERP further expanded the list of essential services subject to restrictions discussed above
in Part B, including a prohibition on strikes, to include all government-owned commercial
enterprises including in the sugar industry and fishing industry. As we noted in past submissions,
the Fiji Sugar and General Workers Union has been a long-standing target of the government.
The Fiji Sugar Corporation (FSC) is a public entity that owns and manages sugar mills, but it has
continuously refused to bargain with the union and police and military officials have intimidated
and harassed workers to prevent them from engaging in strike votes.

11

Report on the ILO Direct Contacts Mission to Fiji, Suva 6-11 Oct 2014, GB.322/INS/9/2 p. 17, online at
http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_316836.pdf

The extension of essential industries also applies broadly to the Government and any statutory
authority, which goes well beyond the limited definition of acceptable restrictions on the right
to strike for public workers under ILO jurisprudence, which requires that the workers be
exercising authority in the name of the State.12
4. Further Restricts the Right to Strike, Making it is Nearly Impossible to Exercise
The revised ERP maintains and expands restrictions on the right to strike, including several that
the ILO has specifically identified as violating freedom of association.
The ILO Committee of Experts has previously commented on the combined effect of sections
169, 170, 181(c) and 191(1)(c) of the ERP. These provisions allowed either employers or the
government to refer collective labor disputes to compulsory arbitrations, which were then binding
on the parties. The ILO Committee found the cumulative effect of these provisions make it
possible to prohibit virtually all strikes or to end them quickly, which seriously limits the means
available to trade unions to further and defend the interests of their members. The Committee
concluded these sections should all be amended.13
Instead, Section 191BS of the new ERP replaces, largely un-amended, Section 191 of the prior
ERP, which allowed the Minister of Labor to order the discontinuance of a strike after referring
it to an Arbitration Court. Section 181 additionally provides that the Minister can now also apply
for an injunction to discontinue a strike aimed at an employer, where previously only employers
could do so, offering an additional tool to restrict strike actions, which undermines worker rights
to freedom of association and collective bargaining.
Section 175(3)(b), relating to requirements for strike ballots, was also left unaltered. The section
requires a 50% vote of all members that are entitled to vote.
Section 180 of the existing ERP, which provides that the Minister has the power to declare a
strike illegal, is unchanged. The Committee of Experts has made it abundantly clear that
responsibility for declaring a strike illegal should not lie with the government and the right of
appeal to the courts does not in itself constitute a sufficient guarantee.14
A union in an essential service must give 28 days notice of an intention to take industrial action
to the employer in a prescribed form. If the notice does not comply with statutory requirements
of s191BN (2) or 191BO (2) it is deemed to not have been made at all. Any strike taken after the
service of a non-compliant notice is considered unlawful.

12

See CFA Digest of Decision 574, finding The right to strike may be restricted or prohibited only for public
servants exercising authority in the name of the State.
13
ILO Committee of Experts, Observations on Convention 87, Fiji, 2012,
http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:2698708.
14
See CFA Digest of Decisions 628, finding Responsibility for declaring a strike illegal should not lie with the
government, but with an independent body which has the confidence of the parties involved.

The combination of these various requirements will make it extremely difficult to lawfully engage
in a strike, which impedes the internationally recognized rights to freedom of association and
collective bargaining.
5. The Institutions Required to Make the Amended ERP Function Do Not Exist
The amended ERP requires all companies and industries classified as essential industries report
disputes of interest to an arbitration court and its secretariat. Trade unions who represent workers
in essential industries must register with the arbitration court before reporting any dispute or
registering any agreement reached with employers. However, no such arbitration court or
secretariat has actually been established. In reality, unions and workers in these sectors have no
recourse to any third party to resolve disputes and no way of registering any agreements, although
the sum of other restrictions make it unlikely successful collective bargaining will take place. The
law requires all disputes be reported on "prescribed forms." These forms also do not exist. By
creating new requirements without any effective process by which unions can meet such
requirements, it appears that Fiji is deliberately preventing workers from being able to exercise
internationally recognized worker rights.
6. Dues Check-Off Not Restored
The tripartite agreement specifically required that the Government of Fiji restore dues check-off.
Unfortunately, no check off has been implemented in government owned enterprises despite
numerous reminders.
D.

Electoral Decree

The Electoral Decree, issued in March 2014, places further limits on trade unions ability to
participate in the democratic process, and imposes strict penalties for engaging in public political
debate, in clear violation of freedom of association. Article 24 bans leaders or staff from trade
unions or union federations from becoming political candidates. Article 113 explicitly prohibits
trade unionists (wrongly deemed public officers) from conducting any campaign activities, even
posting or distributing materials inside a trade union office. Article 115 cuts an even wider swath,
making it unlawful for any organisation which receives foreign funding or assistance to engage
in, participate in or conduct any campaign (including organising debates, public forum, meetings,
interviews, panel discussions, or publishing any material) that is related to the election or any
election issue or matter. As many civil society organisations within Fiji receive funding or
assistance from overseas sources like the United Nations, international non-governmental
organizations or foreign governments, this provision muzzles nearly all critical voices in the
country. Article 115(2) appears to bar anyone from conducting any voter education or voter
registration drives, unless specifically authorized. It seems doubtful that any person or
organization affiliated with a trade union would receive such permission. Violating these
provisions can result in incredibly harsh penalties, including a $50,000 fine, 10 years
imprisonment, or both.
Article 154 charges the Election Commission with conducting trade union elections. Trade unions
are rightly concerned that this provision will give a free hand to the government to interfere in
8

trade union affairs. Currently, unions carry out their own elections according to their respective
constitutions. It is unclear how union constitutions can be respected by the application of the
Decree. The role of the Registrar of Trade Unions is now also called into considerable doubt. To
date, the Supervisor of Elections has not clarified how it intends to conduct union elections. The
decree provides that decisions of the Supervisor of the Electoral Commission as to any complaint
are final and binding, and explicitly divests all courts from any review of the decision of the
Supervisor. Without judicial review, the credibility of the Commission is fundamentally
undermined.
The government has issued new procedures for the holding of elections of worker and employer
organizations, putting them under the supervision of the Fiji Electoral Office. Elections are
already regulated by the Employment Relations Promulgation and the bylaws of the respective
organizations. This recent move is wholly unnecessary and again calls into question the
motivation of the government. Both workers and employers are deeply concerned about the
potential for interference in the internal matters of their organizations.
E.

Fiji Political Parties Decree

The Fiji Political Parties Decree (Decree 4 of 2013) remains in effect.15 As detailed in our 2013
submission, the Decree is designed to completely prevent union officials and activists from
participating in the political process. Public officers, defined in Article 14.2(d) as any elected
or appointed officers of a trade union, federation, congress, council or affiliation of trade unions,
cannot form, become a member of, or hold office in, a political party. Under Article 14.1(c), a
trade union official cannot even express support for a political party. Anyone defying the decree
faces a $50,000 fine, 5 years imprisonment, or both. The decree also provides that existing
political parties that fail to successfully reregister under the decrees cumbersome new
requirements will have their assets confiscated by the Government.
This prohibition on political activity is a clear violation of the right to freedom of association,16
and has had a tangible effect on trade unionists in the country. As a result of this Decree, Felix
Anthony was forced to step down as the general secretary of the Fiji Sugar and General Workers
Union and the national secretary of the Fiji Trade Unions Congress, in order to participate as a
candidate for political office in the Fiji election.
F.

Public Order Decree

The Public Order Amendment Decree remains in effect. As detailed in our 2012 submission, this
Decree requires advance notice and approval for any public meetings, with penalties of up to five
15

Online at http://www.fiji.gov.fj/getattachment/07d811df-d5b2-4134-81a4-2136cad9ee89/Decree-No-4--Political-Parties-%28Registration,-Con.aspx. A subsequent amendment to that decree broadened the scope of

unionists barred from the political process. See Political Parties Amendment Decree (Decree 11 of 2013), online at
http://www.fiji.gov.fj/getattachment/8646abff-7bdd-4ffe-a929-74f3bfb9133b/Decree-No-11---Political-Parties%28Registration,-Co.aspx
16
CFA Digest of Decisions 501, 503. See also International Senior Lawyers Project, Government of Fiji Decree
4 of 2013 A Comparative Analysis against International Instruments and Precedent, online at
http://www.islp.org/sites/default/files/Fiji%20Decree%204%20Pol%20Parties%20Comparative%20Analysis%202
013.pdf

years in prison for failing to comply. The decree gives police the power to arrest and detain
individuals without charge and allows prison sentences of up to 10 years for anyone who makes
statements or takes action that the government believes may sabotage or undermine the
economy. The expansive definition of terrorism, with severe penalties, can be interpreted to
cover just about any organized opposition to the military junta.
By adopting measures that prevent union participation in the political process, and sanction
continued interference with the right to associate and engage in union activity fundamental to
achieving fair working conditions, the Government has failed to afford workers internationally
recognized rights as required by 19 U.S.C. 2462(c)(7).
II. Fiji Fails to Afford, and Often Actively Interferes With, International Recognized
Worker Rights in Practice
A. Interference with the Right to Strike
Workers report that Fijian military and police continue to intimidate and harass workers. In our
2013 submission we detailed interference by police, the military and government officials to
prevent a sugar sector strike. In 2014, hotel workers and union leaders were arrested following a
walk-out. Employees at the Sheraton Fiji Resort and Westin Denarau Resort and Spa 400 workers
walked off the job for approximately four hours to protest poor working conditions.17 Not only
did the government arrest seven workers involved in the walkout, but additionally the
Government of Fiji arrested Daniel Urai, President of the FTUC and five others on New Years
Eve with no explanation.18 The arrest of trade unionists for conducting trade union activity is a
serious breach of the right to freedom of association.19 These charges were subsequently dropped,
but workers have already been deterred from exercising their rights.
B. Assault and Harassment of Trade Union Leaders
As detailed in prior submissions, there have been serious threats to trade union leaders, including
harassment and assault. The ILO Committee of Experts has urged the Government to conduct an
independent investigation without delay into acts of assault, harassment and intimidation against
Felix Anthony, Mohammed Khalil, Attar Singh, Taniela Tabu and Anand Singh. Unfortunately,
no measures have been taken by the Government in this regard.
A complaint was filed with the police by FTUC General Secretary Felix Anthony in July 2012
regarding the beating he endured. As explained in the ILO Mission Report, on July 29, 2014 the
Police Commissioner stated the file was closed due to a lack of medical evidence, but found that
Mr. Anthony was never interviewed by the police regarding his allegations. The Commissioner
reopened the matter and appointed a senior investigator. However, no action has yet been taken
by the police to pursue this matter further.
17

See Fiji Times online at http://www.fijitimes.com/story.aspx?id=255707

See New Zealand Radio online at http://www.radionz.co.nz/international/pacific-news/235157/fiji-ftucpresident-still-baffled-at-arrest-over-sheraton-strike
19
See CFA Digest of Decisions 61, finding The detention of trade union leaders or members for trade union
activities or membership is contrary to the principles of freedom of association.
18

10

The ILO Committee of Experts has repeatedly confirmed that freedom and security of person
is fundamental to the normal exercise of trade union rights. The repeated lack of action indicates
an unwillingness to take the necessary steps to afford workers internationally recognized worker
rights.
C. Failure to Enforce Labor Rights
Given the extreme restriction on the exercise of trade union rights, it is perhaps unsurprising that
the government fails to enforce the meagre protections that are included in the Employment
Relations. For example, at Tropik Wood Industries Ltd, a wholly-owned government company,
management has denied the union access to the workplace. Workers report the company has
refused to deduct union dues and threatened workers with the non-payment of annual bonuses and
other benefits if the workers do not resign from the union and join an in-house union formed by
management. This has been reported to the Ministry of Labour and the Regional Director of the
ILO. However, to date no action has been taken and management continues to intimidate workers
on a daily basis. Workers report that no collective bargaining has taken place despite many requests
by trade unions in both the private and public sector.
The Government of Fiji has not acted to secure fundamental worker rights in practice, even within
the restricted confines of current law. It has not indicated any intention to afford internationally
recognized worker rights as required to maintain GSP benefits.
III. Conclusion
The Government of Fiji has failed to take steps to ensure internationally recognized worker rights
as is required by 19 U.S.C. 2462(c)(7). In fact, by adopting, maintaining, and enforcing
legislation that severely curtails fundamental rights, utilizing the military to harass and threaten
workers, and resisting cooperation with the ILO, the Government is taking active steps to nullify
internationally recognized worker rights in both law and practice. As such, the AFL-CIO urges
the President to suspend the application of duty-free treatment accorded under the GSP until the
Government of Fiji amends its laws to reinstate internationally recognized labor rights,
effectively enforces those rights, and abandons all activity designed to deter workers from
exercising such rights.

11