Parties encouraged to act in good faith in bargaining for a collective agreement

As the dispute continues between the government and public sector unions, the Human Rights and Anti‑Discrimination Commission is strongly encouraging all parties to act in good faith in bargaining for a collective agreement.

Director Ashwin Raj says while the Fijian Constitution guarantees the right to peaceful assembly, demonstration and picketing as well as confers to trade unions and employers the right to bargain collectively, strikes and lockouts must be a measure of last resort.

Raj says it is imperative that the remedies for employment disputes and grievances outlined in the Employment Relations Act are fully exhausted before a strike or a lockout is even considered.

He says it must be noted that even the International Labour Organisation position is that disputes over rights set out in law, collective agreements or contracts of employment are often not considered to justify recourse to strike action.

Raj says this is because the parties are expected to have recourse to adjudication by the relevant judicial or other body to resolve the dispute, following any conciliation procedure that may be applicable. 

He says due consideration must also be given to the fact that health services fall within the ambit of essential services.

The Human Rights Commission says the ILO has taken the position that “it is admissible to limit or prohibit the right to strike in essential services, defined as those the interruption of which would endanger the life, personal safety or health of the whole or part of the population”.

Raj says the right to strike is not absolute and often subjected to certain legal conditions or restrictions as recognised by the ILO.

The Commission implores those calling for an unlawful walkout to take full cognisance of the limitations set out in the Fijian Constitution and fully exhaust the processes of good faith in bargaining for collective agreement as outlined in the Employment Relations Act, which also provides that where a strike or lockout is threatened in an essential service that there is an opportunity for a mediated solution to the problem.

Raj says in the interests of protecting the economic and social well-being of not only our nurses but also the social and economic rights of ordinary Fijians, the most vulnerable in our society who have no other recourse but to our public health facilities, the Human Rights and Anti‑Discrimination Commission strongly encourages all parties to act in good faith in bargaining for a collective agreement.