We are instructed that the Fiji Tourism Worker’s Union (“FTWU”) have served a notice on “the Resort” to initiate collective bargaining.
We are instructed that FTWU have declined to disclose the names or identity of workers whom they claim to represent despite express request for disclosure by the Resort.
Our legal views are thus sought, particularly in respect to whether the Union is mandated under the provisions of the Employment Relations Promulgation 2007 (“ERP”) to divulge the names of the workers they represent as a prerequisite to the collective bargaining process.
We have conducted a search with the Office of the Registrar of the Trade Unions and are informed that FTWU is a registered union and still “active”. Enclosed herein is a letter dated 27 March 2017 from the Registrar.
We set forth our views as follows:
1. As per of the objectives of ‘collective bargaining” envisaged under the ERP, Section 149 inter alia provides:
“The duty of good faith requires a union and an employer bargaining for a collective agreement to do, at least, the following things-
(e) “the union and the employer must provide to each other, on request and in accordance with section 151, information that is reasonably necessary to support or substantiate claims or responses to claims made for the purposes of the bargaining”.
2. Section 149 (e) therefore enables either of the party to seek disclosure from the other party in respect of any claims, including a claim that a Union represents a group of workers.
3. In this instance, FTWU has informed the Resort that some of its employees are members of its Union whilst the Resort is not aware of any of its employees being Union members because there have been no request for deduction from wages of any of the employees towards any sort of union membership fee/subscription.
4. In our view, by virtue of section 149 (e) of the ERP, the Resort is entitled to request for disclosure from the Union, with respect to which employees are members of the Union for verification purposes.
5. Section 151(1) applies for the purpose of section 149 (e) and section 151(2) stipulates as follows:
(a) a request by a union or an employer to the other for information must be in writing;
(b) specify the nature of information requested in sufficient details to enable the information to be identified;
(c) specify the claim or the response to a claim in respect of which information to support or substantiate the claim or the response is requested and;
(d) specify a reasonable time within which the information is to be provided.
6. The above provision highlights the procedures in relation to a request for disclosure of certain information. All requests for disclosure must be in writing and must be precise as to which information, documentation or records are requested, for what purpose(s) they are being requested and within what time frame should these disclosures are requested to be furnished.
7. Section 151 (3) states that “a union or employer must provide the information requested either directly to the other; or to an independent reviewer, appointed by consent of the union or the employer providing the information reasonably considers that it should be treated as confidential information”.
8. The above provision also provides for an option of an independent reviewer should the Union (in this case FTWU) or the employer (the Resort) agree on appointing an independent reviewer in order to comply with the process of disclosure. If an independent reviewer is appointed then all information pertaining to disclosures will be furnished to the independent reviewer (who is appointed by the employer or the Union).
9. The Resort Management upon requesting disclosures and upon being furnished with the same and having complied with all procedures of disclosure may have a meeting or discussion with FTWU as to the following issues:
(i) Clarification regarding which employees are union members (as per the disclosure/list initially submitted by the Union);
(ii) Discussions regarding how the Resort’s records were verified in relation to the number of employees who are supposed Union members (as per the disclosure/list of names submitted by the Union);
(iii) Confirmation as to which employees (if any) are Union members;
10. Following these discussions, the Resort may engage further with FTWU for collective bargaining.
11. There is no provision in ERP entitling a Union from withholding information under section 149 or section 151 of the ERP.
12. In our view the identification of union members is critical and ancillary to the collective bargaining process stipulated under Division 2 of the ERP, in particular compliance with Section 157 of the ERP. Issues of “coverage”, “multiplicity” and “consolidation of bargaining” can only be addressed if members of the union are identified, especially if the Resort is dealing with more than one union.
We have enclosed herein an appropriate response to the Union in draft form. Kindly confirm the contents should you prefer the letter to be sent by us.
24th April 2017
The General Secretary
Fiji Tourism Workers Union
11 Rhone Street
Re : Notice for Initiation of Collective Bargaining
We have at hand copies of your Notice dated 28 February 2017 to initiate collective bargaining addressed to the Resort and our client’s email correspondences in response thereto.
At the outset, we wish to indicate that our client is fully committed to the process of collective bargaining as envisaged under the Employment Relations Promulgation 2007. However, it is also imperative for your Union to recognize our client’s right to seek material disclosure from your Union and its significance to the process of ‘initiating’ collective bargaining.
We are instructed that our client has in its email correspondences to you sought from your Union disclosure of the names of workers who are members of your Union.
The request was expressly made in light of the fact that todate the Resort has not received any requests from any of its workers to deduct from their respective wages any subscription / membership fees to be paid to your Union.
We are instructed that your Union has claimed that they do not wish to disclose the names of workers due to risks of ‘victimization’ by the Resort. We believe that these are purely self serving statements and unsubstantiated by the Union.
We are instructed that todate your Union has not disclosed to our client the names of Resort workers who are their members despite numerous requests, which in our view is a reasonable request that will enable our client to then fairly and fully engage with your Union on matters of negotiation/ collective bargaining. To this extent, we emphasize the provisions of Section 149 (e), section 151 and section 157 of the ERP, which no doubt you are fully conversant of.
Our client’s position is and which has been emphatically relayed to the Union; is that the Union does not represent any of its workers as they are not members of your Union.
It is our client’s view that before parties initiate the collective bargaining process, it is prudent that the Resort is made aware of which of its workers are represented by the Union whose employment conditions may be varied after the collective bargaining process is completed and we await this disclosure from you.
In the interim, our client reserves all its legal rights.
We await your response.
NEEL SHIVAM LAWYERS