Why on Earth Did Government Need the Essential Industries Decree?

This is an important detailed argument about what is wrong about the Employment Decree and how it was approved.  More importantly, the article raises doubts about Government's future actions.

• Link to the 2007 Employment Promulgation
• Link to the 2011 Essential Industries Decree

Preamble
I sent a draft of this paper to contacts in Fiji, including the Attorney-General, inviting comment. Replies were received from contacts in support of my argument. I received no comment from the A-G, but the Ministry of Information supplied copies of official releases on the Decree which I have used to comment on the Government case.

The following points were made in the releases that I had either not considered or considered insufficiently. My brief responses are shown in parenthesis. Fuller comment is made where necessary in the main body of the paper .]
  1. Other countries such as the USA and the UK have similar legislation. 'The UK has robustly defended its union recognition laws as compatible with ILO Conventions, in response to criticism of them by ILO Committees following trade union complaints.'
    [A persuasive but insufficient argument. It is understandable that the Fiji pro-business lobby would want to piggy-back on the pro-business legislation of other countries, but this does not necessarily make such legislation either fair or necessary for the welfare of the nation.]
  2. The Decree only affects 11 industries, most of which are corporate entities in which Government has a stake. Other than the banks, the private sector (and unions catering for its industries) are not included in the Decree. However, other industries may be added at a later date. [There seems to be no justification for a decree involving any industry. Eight industries would not made it better, or 15 worse. ]
  3. The Decree is not an attack on trade unions or workers generally. Government has introduced minimum wages and other measures to protect the poor. [Government work for the poor is acknowledged but it is irrelevant in the context of the Decree, unless Government were to argue that unionised labour, absent in industries employing the very poor, would have been better able to negotiate more reasonable wages! ]
  4. The Decree does not run counter to the People's Charter because it upholds the fundamental rights of trade unions. [Yes, except that the exercise of fundamental rights remains an abstraction unless unions can, in practice, fully exercise these rights. I will argue that this is no longer the case.]
  5. The Decree was influenced by lobbying from some designated corporations. This is 'how the system works. The government is keen to understand from the international and business communities how it can support creating a climate that fosters economic growth and job creation.' [Lobbying is fine if it is open to all parties but my understanding is that the workers and unions had no opportunities to lobby, or to state their case before an independent tribunal, before the Decree became law? This, presumably, was why several prominent union leaders appealed to their overseas counterparts for assistance.]

    One of the people I contacted to comment on the Decree replied:

    "Imagine, when you need your home and children protected against thieves, robbers and intruders, you normally get a good strong dog to roam freely around your compound and bark loudly to alert you of approaching danger.

    "Imagine, if a new decree came into effect which protected your right to have a dog,  but stipulated that (a) it must be a small dog  no more than ten inches high; (b) it must not be allowed to bark loudly; (c) it must be chained up all day and all night and not be allowed to roam your compound."

    That just about sums it up.

    Going which way?
Why on Earth Did Government Need the Essential Industries Decree?

By Crosbie Walsh

I have now read the recently passed Essential National Industries (Employment) Decree 2011 and compared its provisions with the 2007 Employment Relations Promulgation that for some eleven “essential” industries it supersedes. I have also read Government documents, including a Question and Answer sheet, that seek to explain the decree. The following discussion outlines my main areas of concern with the legislation, moderated where necessary by Government “answers” which I also address.

First, I see nothing in the Decree that provides government with more “essential” powers that it had under the earlier legislation, and I am unaware of any significant changes in Fiji that would account for the new legislation. While the parts of the Decree that cover new ground give Government no new “essential” powers, they involve Government more directly in employer-worker relations, and they weaken the collective bargaining power of workers by atomising labour organisation and weakening the national trade unions.

This change in the balance of forces is claimed by the unions to be an attack on workers and their unions. Government denies this claim and points to the existence of similar legislation in a number of countries, most notably the United States. The existence of similar legislation does not necessarily mean that it is “good” legislation from the viewpoint of workers. It merely shows that Fiji has more firmly endorsed neo-liberalism, the set of beliefs and practices that remove restrictions on capital and make it more difficult for workers to protect themselves as business and governments adjust to new technologies and trade relations.

Secondly, while the 2007 legislation showed government to be a fair arbitrator concerned with the rights of trade unions to act on behalf of workers, but fully conscious of possible union (and employer) abuses and threats to the national interest, the 2011 legislation is unequivocally pro-employer, anti-union and, by extension, anti- organized labour. It seem a long journey from the heady days when the People's Charter pointed Fiji towards a better, fairer future.

The 2007 legislation established an Employment Relations Court as a division of the High Court; an Employment Relations Tribunal subordinate to the ERC; an Employment Relations Advisory Board; an independent Mediation Unit, and a Wages Council. It recognized trade unions as independent corporations with the right to protect workers, and set up appropriate channels for collective bargaining and dispute resolution. It permitted strikes (and lockouts) when negotiations had failed but strikes required a secret ballot and proper notice. The Registrar could refuse workers the right to strike if essential services were threatened. And all matters left unresolved by either party could be taken to the Courts.

The important thing about the 2007 legislation is that the unions were clearly seen as an essential pillar of an orderly, principled society, where Government did not take sides between employers and workers unless national interests were threatened. The recently passed Essential National Industries (Employment) Decree 2011 has changed all that. In one blow Government has effectively removed, or at least seriously weakened, the trade union pillar which protected organized labour in its dealings with employers.

The Attorney-General, who I suspect was a prime mover in the legislation, says the purpose of the new Decree “is to help create growth and long-term viability for companies essential to Fijians, and in doing so to protect jobs. “

I fail to see how the older 2007 legislation did not do this, or what has changed in the Fiji situation since 2007 that threatens economic viability?

Since 2007, employer-worker relations in the major industries have been stable; there have been no strikes or lockouts of any significance; the Wages Council eventually managed to squeeze small wage increases for non-unionised workers; no remotely viable firm has gone bankrupt, and the economy now seems on the mend.

Nor can I see how legislation that applies to banks, corporatised water and electricity authorities and the Fiji Broadcasting Corporation, and even Air Pacific, have anything directly to do with assisting growth or creating jobs. Surely, the productive industries, such as tourism, sugar, mining, timber and manufacturing are the drivers of growth. These are the “essential industries” — but they are excluded from the legislation.

I am disturbed also that the definition “worker” excludes persons in managerial, supervisory and coordinating roles, and those with access to financial and commercially sensitive information. It would seem that only “ordinary” workers and their unions are a threat to national wellbeing. Yet by Government's own admission, it is people like these excluded persons who have been responsible for much of the mismanagement and corruption in a number of government, and quasi-government, enterprises.

The new legislation removes from workers in “essential”  (but not in the supposedly non-essential) industries the protection of the Employment Relations Court, the Employment Relations Tribunal, the Employment Relations Advisory Board, the independent Mediation Unit, and the Wages Council. 

Instead, they may eventually appeal to the Prime Minister who will refer matters to the Minister of Trade and Industries. The right to strike is severely restricted and the Minister's decision is final. As the head of Government, the PM is not an independent party where government enterprises are involved. There is a potential conflict of interests, and there is absolutely no right of appeal to any court.

The 2007 legislation recognized trade unions as independent corporations with the right to protect workers. The new Decree re-defines unions, their management and their rights. It creates more opportunities for workers to leave unions than to join them; union fees are no longer automatically deducted from wages, and provisions exist for employers to call for the disestablishment of a union.

It curtails national union access to workplaces and states that “all office-bearers, representatives, executives, and members of a union which represent workers employed by designated corporations must, at all times, be employees of the designated corporation.”

The Decree therefore isolates workers from national unions and places all “on the job” union representatives at the mercy of their employers. In such a situation, genuine, independent, collective bargaining and dispute resolution mechanisms are likely to be highly compromised.

There are many other provisions along the same lines.

With relatively recent and perfectly adequate legislation in place, one must ask again why the Essential Industries Decree was considered necessary, and which strategist, knowing it would  alienate many people who otherwise support Government (not to mention Fiji and overseas unions) was the guiding force behind its passing? What consultations took place and what legal advice was sought, before Fiji passed legislation that many think is in breach of International Labour Organization protocols to which Fiji is a signatory?

It is almost as if those in power have no regard for informed public opinion. No democrat could possibly support the new decree. Government was having problems with some union leaders (and the actions of a few known leaders were more anti-government than pro-union) but existing legislation could have dealt with them where they broke the law.You don't need a sledge hammer to crack  a nut (pun unintended.)

When I was first alerted to the proposed legislation I thought it a personal vendetta against the likes of unionists Anthony and Urai, or an over-reaction to a perceived threat to Government. Now I am far from sure. I think back to the marginalisation of pro-Bainimarama people who could be considered genuine democrats or pro-worker or left wing, and the increased influence of employers such as Solanki. I think of the promises, delays and watered-down resolutions on  minimum wages; the reversal of the decision not to increase VAT to 15%; the ongoing PER restrictions and their needless application, that even cover normal university activities; the increased inaccessibility of the PM to moderate voices; the failure to listen to any criticism, however well intended, or to engage in any dialogue. When principled, intelligent, moderate people like John Samy, Jone Dakuvula, Fr Kevin Barr and Rev Akuila Yabaki are no longer listened to, one has to wonder who are the people who now have the PM's ear.

And this, of course, raises the question of Aiyaz Sayed-Khaiyum's influence, and the influence of his business friends and associates. Where, exactly, does the Fiji Government now stand on the “principles” of the People's Charter issues? What is really going on behind the talk?

The Attorney-General assures us that the Decree is not anti-union but several statements in its supporting literature indicate otherwise. In this literature there is no mention of the possibility of  illegal or obstructive activities by employers; the preceived threat is alway from the unions. Thus, it is the unions that may “attempt to disrupt operations in an essential national industry.” And the unions, not the employers, that are “an external third party who may have a wider agenda of their own.”

If there is any doubt about who is likely to cause trouble in the essential industries, this sentence should leave no doubt: “Trade unions cannot be allowed to hold essential industries [to] ransom by blocking changes to terms and conditions and taking damaging strike action with impunity.” The Decree puts up a straw man* (unions holding the country to ransom), and then claims the Decree is necessary to knock them down.

Fiji has long been defined as a multicultural society. Most events and classifications have been seen, and most statistics, have been recorded in racial terms. For a brief time in the late 1970s some attention was given to the importance of class by scholars like Mamak, Ali and Anthony but the interest waned, and with the demise of Marxism seems unlikely to be revived any time soon.

But the qualifiers we append to race, such as Fijian elite, Indian businessman, Fijian chiefs and Fijian establishment, and even urban Fijian, clearly indicate that class is —and has long been— a major explanatory factor in Fiji.

My assessment is that up until the passing of the ENI(E) Decree, Government was juggling its options, and trying to do something for as many people as it could. One could even argue that the Decree is merely part of an ongoing juggle. This time for the employers; next time for the workers.

But the Decree is no juggle. It is a lurch to the right to the benefit of employers, the elite and the establishment, in whatever new combination they now are. In passing this legislation,  Government will no longer be seen as neutral; its legislation has resulted in its taking sides. Whether it will do so in its application of the Decree is yet to be seen, but the potential is there, which must be disquieting to many Bainimarama supporters. 

I cannot see how the 2011 Employment legislation will increase trust in Government; trust in fairness; trust in the possibilities of future dialogue and consultations; trust in the 2014 elections, and trust in the future? The legislation may please potential investors and corporate employers; for a short time it may please people who have been irritated by the likes of Felix Anthony, Daniel Urai and Attar Singh, but other people will see the Decree, and the way it has been implemented,  as evidence that Government has lost its way. More actions like this could lead to Bainimarama's downfall. 

Whatever the perceived shortcomings of Fiji's trade union leaders, trade unions (and not “bargaining units”) are an integral part of the structure of most modern democracies.

We expect decrees to be opposed by Government opponents. We do not expect to see them raise doubts in the minds of its friends and supporters, causing some of with some of them to change sides. The Prime Minister should be asking why this has happened.
_____________

* Google defines a straw man as “an argument … based on misrepresentation of an opponent's position. Attacking the straw man … creates the illusion of having refuted a proposition … without ever having actually refuted the original position.”

Comments

The Slippery Slop to Hell and Big Business! said…
The increasing prominence and influence of "Straw Men"? Class and Elites in Fiji: explain succintly in 2,000 words.

Fiji has been run by Class and Elites even under the British (or perhaps especially under the British?). Since 1874 and the coming of the Colonial Administrators (many from the British 'hoi oligoi') this has been historically so.

Now we are being handed 'hook, line and sinker' to the depredations of Big Business. And Big means Big! Because the power of Organised Criminals has come into sway and that is Serious Global Organised Crime. At the Crossroads of all these factors is the Slippery Slope into Hell. So, what to make of all of this? Arbitrary governance - governance which bends to the sway of the Macho Top Dog. Whichever one happens to be around and barks the loudest!

Who is to blame? We are. We permitted it to come into our purview through our Culture of Silence and our utter failure to "Ask the Right Questions" and to demand immediate answers.

Where is or are all the Ministers for Education past and present? No sign yet of noticeable improvement in the acuteness of questions asked. Except in the odd tertiary institution where sagacious, mature students are flexing their quizzical muscles. More Power to Them!

And, by the way, Hell is Hell (capital 'H') and take a cursory look at: Jamaica, Mexico, Guatemala, San Salvador and other similar countries where severed heads land up outside Primary School. The result of turning and looking the Other Way when drugs and serious crime, murder and threats related to murder come into your neighbourhood. We did this in Fiji since 1990. The elites tolerated it and then encouraged it. Too lucrative to ignore? And how about Class? Low Lifes and No Class!
Scott said…
There is a paradox in the Bainimarama government's imposition of the Essential Services Decree which needs an explanation. For a government which has strongly condemned external interference in the internal affairs of Fiji, why has it so readily accepted advice from the US and Australia on the regulation of labour? It has been pointed out in Australia that Qantas, Air Pacific and US anti-labour lawyers played a major part in drafting the legislation, yet no one in the Fiji government has condemned this form of foreign interference. Why is nationalism an appropriate stance when dealing with international criticism of the slow process of democratisation, but international assistance acceptable for attacking workers in Fiji? Perhaps the Bainimarama government isn't as much a break with the past as official spokesmen and women like to pretend.
Essential to be heard said…
Croz,

You say “We expect decrees to be opposed by Government opponents. We do not expect to see them raise doubts in the minds of its friends and supporters, causing some of with some of them to change sides. The Prime Minister should be asking why this has happened.”

This is not the first decree that has had that affect on supporters of the government. I could mention PER, Media Decree, Judicial decree, proposed FNPF changes etc. They all address a threat sometimes real and sometimes imagined that leads to the government producing a draconian decree. The net effect of all these decrees is to concentrate power in the hands of the PM and that no one can challenge his decisions in the court.

Up until 2009 my view on the way forward was the same as yours. There has been a coup of which I did not approve but we have the Government we have and we should work with it to further the best interests of the country. I sincerely believed that the Government was genuine in its desire to implement the Peoples Charter and all that it stood for.

However, since the abrogation of the constitution every decree has moved Fiji further away from the Peoples Charter and closer to a dictatorship.

My faith in the Government had been lost by the end of 2009. By 2010 I had joined the anti Government camp. In doing so I felt angry and let down. A man, Bainimarama, I had believed was trying to do the right thing, I now believed had conned me and was not in this for his stated reasons.

Now as we read on the anti blogs about the high salaries and the interminable abuse of office I believe the worst. The anti blogs may not be reliable but with a little bit of transparency the government could have made them irrelevant a long time ago. Now I am afraid I am more likely to believe C4.5 than the Fiji SUN.

I am a regular reader of your blog and initially I was more likely to agree with your assessment than not but now I believe the chances of a free and fair election in 2014 are virtually non existent and decrees like the Essential Industries decree make it seem even less likely.
sara'ssista said…
so it appears this regime, as predicted, will spend the next three years ignoring anyone that doesn't emphatically agree, and rubbish those that don't. So there will be no change then. What is the point of any analysis?
Anonymous said…
so we can expect three more years of this regime ignoring anyone that doesn't emphatically and enthusiastically agree with it, and the rubbishing of opponents, as predicted. PER is staying and people do not dare to speak out without threats from the regime. So what is the point of any analysis of decrees?
Fred said…
It never ceases to amaze me that there are indeed people who still believe that a dictatorship can deliver social and economic development for the general population. Oppressive, dictatorial regimes do not tolerate to be criticized for a reason. The powerful and mighty know that they are wrong. And they want to stay in power, sometimes at horrendous cost to the countries they terrorize. History offers a very rich evidence of this and even looking at current affairs shows clearly that dictators do not reform or prepare for transitions into more participative governance models. I do not subscribe to the notion that 'democracy' western style is the ultima ratio of governance. At best it is work in progress and very often rather messy. The principle of holding those in privileged positions accountable, be it through media, free expression or elections is paramount to the development of any society, the Fijian included.
Anonymous said…
Croz,

I suspect but there is a simpler reason for this decree and in fact the the PER staying in place.

Both are designed to keep political opponents and indeed anyone who might speak up or out against the current government from doing so.

The decree is dressed up as many things but the main driver behind it seems to be the removal of professional or external union leaders. I beleive the reason for that is to remove their power.

The PER is the same. It is in place to stop opponents and it will be in place right up to the 2014 election and perhaps even past then.
OMG said…
It a well written and articulated article Croz but frankly I don't see why this decree is the one that raises doubts about governments future actions. I tend to look to more basic things like the promise of inclusive dialogue that never happens, the lectures on accountability and transparency that don't apply to the military or government ministers. These things suggest the government is not on the path they say they have laid out. This decree just says to me they will stop at nothing to remove detractors one way or another. There is one thing for certain - they are better at controlling than ever. That much they have learned if not very little else !
Croz Walsh said…
@ OMG ... You are absolutely right in identifying areas of concern. What makes the Employment Decree different is that it is far more than an attack on present union leadership. It is intended to make unions ineffective for many years to come.
OMG said…
@ Croz,

Good point - I had not thought of it like that. Shows how 'now' you start to think when frustrated.

I guess if we can get to a free and fair election in 2014 then a very reasonable platform for a new political party would be one that will restore rights of association by removing this decree. This would get union support and help rally votes. However today that would be seen as anti government (which in turn is translated unfairly into 'anti Fiji' and 'fair target' of all authorities like FICAC). So here in lies the problem. How can a new party emerge if all it can do is praise and support the existing government. It feels like Frank and team plan to hold onto power well beyond the 2014 election and based on current actions they will. So looking forward I see even bigger issues.
Essential to be heard said…
Croz you say “What makes the Employment Decree different is that it is far more than an attack on present union leadership. It is intended to make unions ineffective for many years to come.”

PER is can certainly no longer be viewed as a short term measure. It is intended to make any group, not just unions ineffective for many years to come. You can tell me I am wrong when it is lifted.

The Media Decree but not defining the National Interest basically muzzles the press for many years to come.

The Judiciary decree has some good parts but making the AG who has no checks on his power responsible for licensing lawyers gives him undue influence. From experience I know of some lawyers who are unwilling to take on cases that will put them in the Government sights for this very reason.

There is a pattern that has been apparent for a couple of years in other decrees that you are just noticing in the Essential Industries Decree.

You might be right in believing that the Government is doing the right thing. But as they put more power in the hands of essentially 2 men the temptation to abuse that power becomes ever greater. In my view we are seeing this power being abused with increasing frequency. We know from history that power corrupts and absolute power corrupts absolutely.
Knowing the Form said…
@ Lawyers not taking on cases which may expose them to the regime..

So hereby is the Law and Due Process undone. Justice becomes Injustice and the Courts are rendered impotent. Let this be a lesson on the Tuchman "March of Folly". How impotence is delivered up to the people who cry for Justice and a measure of economic certainty in a Sea of Trouble.

Is anyone paying heed? We ignore the pleas of those who seek justice at our own peril. We impose upon the powerless at risk of our own undoing.

If we do not know the form: ask!
Listen Up! said…
@ Essential to be Heard

Your post is one of the most convincing ever made. You are heard.

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