The following is a copy of the full submission made to the Constitution Commission by members of the Fiji Mineworkers Union who have been on strike for the past 21 years. Following the submission the members of the Commission visited the mines at Vatukoula to see work and living conditions for themselves:
Honourable Members of the Constitution Commission,
We, members of the Fiji Mineworkers Union (FMUW) who have been on strike in Fiji since 27th February 1991- that is for 21 years and 6 months, make these submissions to the Honourable Constitution Review Commission.
Our strike is considered to be the longest in history and is mentioned in the Guiness Book of Records.
The reason that we are making these submissions to the Commission is because in 2007, when the current Government took over, we were promised resolution of our strike by the following government representatives at a meeting held at the Fiji Human Rights Commission on 23rd April 2007. These representatives were:
Captain Teleni (former Deputy Commander of the RFMF);
Captain Leweni (former Military spokesman);
Interim Attorney-General Mr Aiyaz Sayed-Khaiyum
After that meeting nothing much eventuated and the former Director of the Human Rights Commission, Dr Shaista Shameem, wrote regularly to the Attorney General seeking up-dates to which there were no responses.
Subsequently, our Union and the Human Rights Commission had decided to take the matter to the court through the mechanisms of Chapter 4 of the 1997 Constitution and specifically under section 33 on Fair Labour Practices and also the Human Rights Commission Act 1999.
However before our application could be filed in court, the 1997 Constitution was thrown out. That was in April 2009. At the same time the Human Rights Commission and Ombudsman’s Office became defunct. The Human Rights Commission is now open in name only.
In 2009, the Fiji Mineworkers Union formally withdrew our case from the Human Rights Commission. Instead we decided to send our complaint directly to the International Labour Organisation in Geneva. Our complaint was drafted in the form of a Communication, and sent to the Committee on Freedom of Association and to the Committee of Experts of the ILO.
A copy of the ILO communication with attachments can be made available to the Commission if it would like to have a copy.
However, we will just outline a few points because this has a connection with our submissions today.
3.0 FMUW Complaint to the ILO and the Committee of Experts on the Application of Conventions and Recommendations, and the Committee on Freedom of Association.
A short summary of the FMWU complaint to the ILO Committee of Experts is as follows:
(i) that our 1991 strike action had not been resolved despite the current Government’s undertaking in 2007.
(ii) that the current Government has not communicated properly with the FMWU about how they would deal with our community’s problems at Vatukoula, including problems faced by women and children.
(iii) that the abrogation of the 1997 Constitution and the Human Rights Commission Act has interfered with the just rights of the Union members to seek redress in the courts under the Bill of Rights.
(iv) that the promulgation of the new Human Rights Commission Decree in 2009 removes important protection of rights of union members and employees in Fiji because they find it very difficult to seek redress from the courts.
(v) that there is a perception that employment rights are no longer protected in Fiji.
(vi) that our members are being victimized by the Government and the Commissioner Western’s staff for expressing our right to strike; including by threats of eviction in Vatukoula where the striking miners still occupy some company houses. We can elaborate on this victimization with examples if the Constitutional Commission would like us to.
(vii) that new anti-union decrees have made the situation of striking miners even worse than before since the law has become very strict in relation to protest by workers in Fiji.
4.0 Up-date on the ILO complaint
The ILO Committee of Experts is investigating our complaint and has been asking the Fiji Government to reply to the complaint.
We say to this Constitutional Commission that the Fiji Government recently mis-informed the ILO about our situation.
But the ILO Committee is seeking further Government views in light of our response to the Fiji Government statement to the ILO on our grievance.
5.0 Our Recommendations on a new Constitution
Because of our experiences in the past 21 years and also after 2009, we of the Fiji Mineworkers Union strongly make the following six (6) recommendations about a new Constitution for Fiji:
(i) Protect and Promote labour rights as Fiji is a
signatory to the ILO Conventions
One of the most important aspects of any Constitution in Fiji is that it should respect the rights Fiji has undertaken to protect under the ILO.
This international law, namely the ILO Convention, should be protected by Constitution.
(ii) Include 1997 Constitutional protection for trade unions and fair labour practices
Protection of labour rights should be based on the Bill of Rights provisions of the 1997 Constitution. We specially emphasize that sections 32 and 33 should be included in a new Constitution. Section 32 protects Freedom of Association and section 33 gives workers the right to form trade unions. Section 33 also states that every person has the right to fair labour practices.
These above are very important rights. After 2009 we were prevented from making an application to the courts for protection of our rights in relation to our long-standing strike and after that we faced harassment by the Commissioner Western’s Office and the security forces.
(iii) The Constitution should have the requirement for a robust and independent Human Rights Commission and Ombudsman’s Office
In the past, the striking Fiji Mineworkers Union had gone to the Human Rights Commission and Ombudsman’s Office for assistance.
However with the abrogation of the Constitution in 2009 the Ombudsman’s Office has remained empty and the Human Rights Commission has come under the influence and direction of the Attorney General’s Office. A number of staff of the Commission have been incorporated into the Attorney General’s Office.
This needs to be changed in the new Constitution as Fiji’s Human Rights Commission and Ombudsman’s Office need to be truly independent.
(iv) Independent judiciary
For workers’ rights to be properly protected there needs to be an independent judiciary and labour tribunals. At present there are only 2 members in the Employment Tribunal and decisions take too long to be handed down.
The Tribunal members should also be independent of business interests.
An independent judiciary, which includes an independent employment Tribunal, and cannot be compromised by the Government or business interests, is important for labour rights to be protected in Fiji.
(v) Protect the Employment Relations Promulgation from interference
New decrees have undermined the Employment Relations Promulgation 2007 which protected rights of workers. These new decrees should be repealed as they are not in compliance with the ILO Convention.
(vi) The Bill of Rights provisions in the Constitution
The Bill of Rights provisions in the 1997 Constitution should remain in place, especially the avenues of redress in section 41 Enforcement provisions which allow a person to go directly to the Court if he or she feels that rights are being violated or likely to be violated by the State.
The Bill of Rights in the Constitution should also be the most important part of the Constitution and all state officials at all levels should abide by the Bill of Rights.
Honourable members of the Commission, we make our submissions after suffering serious labour rights violations over the past 21 years.
If there are any questions you would like to ask about our strike, we would be happy to answer to that.
On behalf of the Fiji Mineworkers Union Executives and members.