Ratified treaties;¹ Work of international supervisory bodies² 

Consideration of payment of bonus to certain employees in exchange for "no strike and no lockout"/ Consideration of the right to strike under domestic and international law/ Use of international law as  a guide for interpreting domestic law

This case arose out of a dispute between the Fiji Electricity and Allied Workers Union and Fiji Electricity Authority about the Union’s 2004 Log of Claims for a collective agreement and other work related issues. The outstanding claims by the Union, set out in the Log of Claims, on which the Arbitration Tribunal was required to make a determination, related to public holidays, shift work and a $200 bonus.

Only in the Tribunal’s consideration of the third claim did it refer to international law. The third claim related to the fact that the Authority paid a $200 annual bonus to “hourly paid employees” performing electrical work who were represented by the Electrical Trades Union (the “ETU”). These employees were covered by a separate collective agreement, which included a clause that provided for payment of the bonus every year in recognition of there being agreement to “no strike and no lockout”.

The Fiji Electricity and Allied Workers Union submitted that the employees it represented did similar work to those who belonged to the ETU. It claimed that a clause should be inserted in the collective agreement between the parties providing for the payment of the $200 bonus annually. The proposed collective agreement did not include a rule of “no strike and no lockout”. The Authority refused this claim.

In this context, the Tribunal noted that section 33 of the Constitution of Fiji, gave workers the right to form and join trade unions and to organise and bargain collectively. The Tribunal further noted that the right to freedom of association and collective bargaining were the subject matter of ILO Conventions Nos. 87 and 98, which had been ratified by Fiji in 2002 and 1974, respectively.

The Tribunal stated:

“Although the right to strike is not specifically referred to in the Constitution nor is it recognized in Conventions No. 87 and 98, the ILO's supervisory bodies have provided some guidelines on the subject. As a result it is now accepted that the right to strike is one of the essential means available to workers and their organisations for the promotion and protection of their economic and social interests". (Committee of Experts - General Survey 1983 paras 200 and 205).”³

The Tribunal stated that, consequently, it accepted the right to strike was a right extended to workers under section 33 of the Constitution. It also stated that the same section of the Constitution set out certain circumstances which may enable a law to place limitations on the right to strike.⁴

The Tribunal then noted:

“The ETU members are engaged in the provision of electricity services. Under the legislations this industry is classified as an essential service and this is an accepted classification under ILO standards. As a result their right to strike is somewhat restricted under the legislation and generally speaking the restrictions are consistent with ILO standards. The Tribunal therefore is reluctant to be seen to be endorsing an agreement which surrenders a group of workers already restricted right to strike, especially when that right is surrendered for a mere $200 per annum.

As a result the Tribunal has taken the view that the $200 bonus should also be paid to the Union’s members whose Collective Agreement contains a clause which demonstrates a commitment to a reasonable approach to the exercise of the right to strike.”⁵

The Tribunal ordered that payment of the bonus to the Fiji Electricity and Allied Workers Union’s members be backdated to 2003.

The use of the work of the ILO Committee of Experts therefore assisted in the Tribunal to articulate a definition of workers’ constitutional rights to freedom of association and collective bargaining, as including a qualified right to strike.

¹ ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); ILO Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

² ILO Committee of Experts on the Application of Conventions and Recommendations.

³ Pages 3-4 of the decision.

⁴ The Tribunal stated those limitations are set out in the Trade Disputes Act Cap 97.

⁵ Page 4 of the decision.