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.

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* 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.”