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Workers Have The Right To Form, Be Part Of A Union: Magistrate

The rights of workers to form and be part of a Union are rights enshrined in our Constitution and protected in the various international instruments which had been ratified by
16 Aug 2018 10:35
Workers Have The Right To Form, Be Part Of A Union: Magistrate

The rights of workers to form and be part of a Union are rights enshrined in our Constitution and protected in the various international instruments which had been ratified by Government, says Senior Resident Magistrate Ropate Green.

Magistrate Green made the comment while ruling in favour of a case brought by the Transport Workers Union.

Case

The union had filed a notice of motion seeking orders from the Employment Relations Tribunal that Nasese Bus Company Limited deduct union fees and engage in good faith in negotiating a Collective Agreement with the union.

Magistrate Green said: “These commitments are not to be blatantly disregarded.”

He said Fiji ratified the Right to Organise and Collectively Bargain Convention on April 19, 1974 giving workers the right to enjoy adequate protection against acts of anti-union discrimination.

It includes requirements that a worker refrain from joining a union or relinquish trade union membership for employment, or dismissal of a worker because of union membership or participation in union activities.

In response, Nasese Bus filed an affidavit deposed by, Jai Nendra Kumar who said that all his workers were on individual contracts, hence the concept of Collective Agreement could not be invoked.

Ruling

The tribunal concurred with Mr Kumar’s position that employees have the right to join a Union of their choice and the deduction of Union fees.

Magistrate Green said the language of the Employment Relation Act is clear that any employee may request the employer to make deduction towards Union fees.

He said the intent of the policy behind the provisions was to inoculate employees from being deprived of meeting their basics.

The tribunal found that in the event an employee has signed the deduction form for Trade Union fees, the employer should deduct such fee consented to from the employee’s wages.

In his ruling, Magistrate Green noted that Nasese Bus Company Limited had defaulted in complying with the provisions of the Act.

He ordered the bus company to deduct Union fees and remit the same to the Transport Workers Union, and to enter into collective bargaining with the union in accordance with Part 16 of the Act.

Nasese Bus Company Limited was also ordered to cease from issuing individual contracts to union members unless an employee who is a Union member wished to migrate to individual contract than the Union must be consulted but only with the written consent of the employee.

Upon a request from its employees the bus company was further ordered to issue wages statements in accordance with Section 44(1) of the Act.

Bus company appeal ruling

Nasese bus through their lawyer, Damodaran Nair, is currently appealing the ruling of the tribunal on seven grounds that they claim the learned Magistrate had erred in law and fact.

  • They claim the tribunal had erred in issuing a decision based on affidavit material when the facts in question were in dispute.
  • That there was an error in allowing the application when the facts and validity of the Union memberships and consent forms for the deduction of the Union subscription was disputed and that ordering the company to enter into a Collective Agreement was contrary to Section 150 of the Act.
  • They claim that the order against the issuance of individual contracts in the absence of any agreed Collective Agreement registered with the Registrar of Trade Unions was contrary to Section 37(1)(a).
  • That the learned Magistrate erred when he ordered compliance with Section 44(1) in the absence of any complaint filed by the workers or Labour Officers adding that the learned Magistrate also erred when he failed to first determine the strike out application filed by the Union.

The matter has been listed for mention on October 17, 2018.

Edited by Caroline Ratucadra




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