Last update, August 2006.
Contributed by Jane Hodges, ILO, DIALOGUE
The 1997 Constitution, amended in 1998 to introduce, among other things, the functions of an Ombud, entered into force on 28 July 1998. It contains the fundamental principles and rights of the ILO’s 1998 Declaration, principally in Chapter 4’s “Bill of Rights”. Section 24 forbids servitude and forced labour. Sections 30, 31, 32 and 35 protect the rights to freedom of expression, assembly, association and religion respectively. Labour relations merits special attention in section 33, which reads: “(1) Workers have the right to form and join trade unions, and employers have the right to form and join employers' organisations. (2) Workers and employers have the right to organise and bargain collectively. (3) Every person has the right to fair labour practices, including humane treatment and proper working conditions. (4) A law may limit, or may authorise the limitation of, the rights set out in this section: (a) in the interests of national security, public safety, public order, public morality or public health; (b) for the purpose of protecting the rights and freedoms of others; or (c) for the purpose of imposing reasonable restrictions on members of a disciplined force; but only to the extent that the limitation is reasonable and justifiable in a free and democratic society.” The qualification that any limitation on freedom of association must be “reasonable and justifiable in a free and democratic society” is worth noting.
The thoroughly worded equality provision reads as follows:
“Section 38. (1) Every person has the right to equality before the law.
(2) A person must not be unfairly discriminated against, directly or indirectly, on the ground of his or her: (a) actual or supposed personal characteristics or circumstances, including race, ethnic origin, colour, place of origin, gender, sexual orientation, birth, primary language, economic status, age or disability; or (b) opinions or beliefs, except to the extent that those opinions or beliefs involve harm to others or the diminution of the rights or freedoms of others; or on any other ground prohibited by this Constitution.
(3) Accordingly, neither a law nor an administrative action taken under a law may directly or indirectly impose a disability or restriction on any person on a prohibited ground.
(4) Every person has the right of access, without discrimination on a prohibited ground, to shops, hotels, lodging-houses, public restaurants, places of public entertainment, public transport services, taxis and public places.
(5) The proprietor of a place or service referred to in subsection (4) must facilitate reasonable access for disabled persons to the extent prescribed by law.
(6) A law, or an administrative action taken under a law, is not inconsistent with the right to freedom from discrimination on the ground of: (a) language; (b) birth; (c) economic status; (d) age; or (e) disability; during the period of 2 years after the date of commencement of this Constitution if the law was in force immediately before that date and has remained continually in force during that period.
(7) A law is not inconsistent with subsections (1), (2) or (3) on the ground that it: (a) appropriates revenues or other moneys for particular purposes; (b) imposes a retirement age on a person who is the holder of a public office; (c) imposes on persons who are not citizens a disability or restriction, or confers on them a privilege or advantage, not imposed or conferred on citizens; (d) permits a person who has a discretion to institute or discontinue criminal proceedings to take account in the exercise of that discretion of traditional procedures in the State for the settlement of disputes; or (e) makes provision with respect to adoption, marriage, divorce, burial, devolution of property on death or other like matters as the personal law of any person or the members of any group;
but only to the extent that the law is reasonable and justifiable in a free and democratic society.
(8) A law, or an administrative action taken under a law, may limit a right or freedom set out in this section for the purpose of: (a) providing for the application of the customs of Fijians or Rotumans or of the Banaban community: (i) to the holding, use or transmission of, or to the distribution of the produce of, land or fishing rights; or (ii) to the entitlement of any person to any chiefly title or rank; (b) imposing a restriction on the alienation of land or fishing rights held in accordance with Fijian or Rotuman custom or in accordance with Banaban custom; or (c) permitting the temporary alienation of that land or those rights without the consent of the owners.
(9) To the extent permitted by subsection (10), a law, or an administrative action taken under a law, may limit a right or freedom set out in this section for the purpose of providing for the governance of Fijians or Rotumans or of the Banaban community and of other persons living as members of a Fijian, Rotuman or Banaban community.
(10) A limitation referred to in subsection (9) is valid only if it: (a) accords to every person to whom it applies the right to equality before the law without discrimination other than on the ground of race or ethnic origin; and (b) does not infringe a right or freedom set out in any other section of this Chapter.”
The affirmative action emanating from section 38(8) to (10) in favour of the indigenous Fijian, Rotuman or Banaban community, and from section 44 described below, has given rise to commentary at the level of international organisations and in academia.1
Chapter 13 covers group rights. It specifies that certain Acts can only be amended by way of special procedures and majorities in Parliament. The legislation listed includes laws on the Great Council of Chiefs, the chiefly system generally, Fijian local government, native customary land tenure and the interest of the people of Rotuma and Banaba.
Section 42 establishes a 3-member Human Rights Commission. Its functions are (a) to educate the public about the nature and content of the Bill of Rights, including its origins in international conventions and other international instruments, and the responsibilities of the Human Rights Committee, the Committee on the Elimination of Racial Discrimination and other organs of the General Assembly of the United Nations for promoting respect for human rights; (b) to make recommendations to the Government about matters affecting compliance with human rights, including the making of a recommendation that a particular question about the legal effect of a provision of the Bill of Rights be referred to the Supreme Court for its opinion; and (c) generally to perform any other functions that are assigned to it by a law made by the Parliament.
Chapter 5 of the Constitution addresses “Social justice and affirmative action” and specifically orders the Parliament to legislate for programs/special measures designed to achieve for all groups or categories of persons “who are disadvantaged” effective equality of access to education and training, land and housing and participation in commerce and in all levels and branches of service of the State (section 44(1)). Subsection (4) makes it clear that a person does not discriminate against another person under section 38 by taking those special measures. Subsection (6) ensures a results-based programmatic approach by requiring the monitoring the efficacy of any program established under this section by reference to specified performance indicators. The Minister must make an annual report to Parliament on the results revealed by the monitoring.
Legal regulation context
The Employment Act of 1965 is currently the single most comprehensive piece of legislation dealing with employment in Fiji. Under section 1(2) it covers terms and conditions of employment in both the private and public sectors and applies to all persons except naval, military and air personnel (other than locally engaged civilian employees), members of the Royal Fiji Police force, and members of the Fiji Prisons Service. Section 1 (3) provides that the Minister may by order exclude any person or class of persons or any public authority or any contract or transaction or class of contracts/transactions from the operation of all or any Part of the Act. In 1976, by an Employment Exclusion Order, the Minister excluded from the application of the Act contracts for the harvesting of sugar cane. In 1984 all industrial relations for this industry were included under the Sugar Industry Act. The Chief Employment Officer (CEO) for Labour organizes the enforcement of the Act’s minimum standards of employment, namely provisions on records of employees, remuneration and matters affecting working conditions. The CEO can delegate these powers to the labour administration, which is comprised of labour officers, medical officers, health inspectors and labour inspectors.
The Employment Relations Bill, No. 8 of 2006, includes Part 2 on Fundamental Principles. Adopted after a tripartite consultation process, it was expected to “be debated in Parliament this month (June 2006)”, according to the International Labour Conference speech of the Fijian Minister for Labour, Industrial Relations and Productivity.2 The Bill is the consolidation by and large of the existing labour legislation providing for minimum standards and settlement of trade disputes into one single statute. The following Acts will be repealed—
(a) Employment Act (Cap. 92);
(b) Trade Disputes Act (Cap. 97);
(c) Wages Councils Act (Cap. 98).
(d) Trade Unions Act (Cap. 96);
(e) Trade Unions (Recognition) Act 1998 (Cap. 96A);
(f) Public Holidays Act (Cap. 101).
The Workmen’s Compensation Act (Cap.94) will be amended (a) by deleting “resident magistrate” and substituting “Employment Relations Tribunal”; and (b) by deleting “High Court” and substituting “Employment Relations Court” wherever they appear in that Act; and the Sugar Industry Act (Cap. 206) will be amended to allow for employment disputes and grievances in the sugar industry to use the machinery under the Bill. The provisions under the Daylight Savings Act, Shop (Regulation of Hours and Employment) Act (Cap. 100) and the Industrial Associations Act (Cap. 95) will not be amended by this Bill.
Part 9 of the Bill covers Equal Employment Opportunities. The coverage is broad: section 3 makes it clear that everyone working in Fiji is covered, including the sugar industry, except for to uniformed services. Section 4 includes a large number of definitions, including ones for casual and domestic workers. Section 4, through the device of a cross-reference to section 75, defines discrimination to include both direct and indirect discrimination. Section 6 (2) lists 14 - and section 75 lists 18 - grounds of prohibited discrimination, including HIV/AIDS and sexual orientation. In recognition of the existence of disguised employment relationships that do not fall into a contract of service or a contract for service, the Bill will make it mandatory for all employment relationships to be covered by written contracts. Part 20 “Institutions” creates the Employment Relations Tribunal and Employment Relations Court, which are available for compulsory arbitration. Draft section 8 creates the Employment Relations Advisory Board, and empowers it, among other things, to prescribe certain conditions for employment. Draft section 140 clarifies that the Industrial Associations Act does not apply to trade unions.
The Human Rights Commission Act of 1999 aims to promote and protect the human rights of all persons in Fiji. It provides for the establishment for a Human Rights Commission to deal with unfair discrimination.
The Public Service Act, 1999, states that the public service provides an environment that is free from discrimination. Its composition should reflect as closely as possible the ethnic composition of the population taking into account, where appropriate, occupational preference.
The Social Justice Act, No. 5 of 2001, aims to implement the social justice provisions of the Constitution by establishing programmes of affirmative action, meaning “State policies to assist groups or categories of persons who are disadvantaged, so as to enable them to achieve equality of access with groups or categories who are not disadvantaged” (section 3(1)). Section 3(3) makes it clear that any programme or measure relating to access to land and housing is not to be construed as providing equality of access to any existing rights, interest or entitlement to ownership of land. The Act repeats the Constitutions monitoring provisions (performance indicators, regular monitoring, annual reports to parliament). Section 8 declares that all affirmative action programmes listed in the Schedule to the Act as existing at the commencement of the Act, are deemed to be in compliance with section 44 of the Constitution.
The Fiji National Training Act was enacted in 1973 and amended in 1976, 1978, 1983, 1984 and 2002. This Act establishes the Fiji National Training Council, renamed the Training and Productivity Authority of Fiji (TPAF) in 2002. The TPAF aims to provide for training and the imposition of levies connected to such training. The Authority consists of the CEO of Labour as its chairperson, two Vice-Chairpersons (one to represent employers and one to represent employees), and up to 8 members appointed by the Minster, of which one-half are to represent employers and one-half to represent employees, and up to 3 other members representing such ministries as the Minister considers appropriate. Under the Act, the functions of the Authority are to, inter alia, provide, arrange for or regulate appropriate training of persons or classes of persons to assist them in connection with employment; to arrange for employment of such persons or classes of persons who are under training or who have completed appropriate training; to advise on, and to disseminate information about training; and to provide consultancy services to employers and other persons. The Minister responsible for Finance may seek an appropriation from the Government’s annual budget for the Authority. In addition, the Minister for Labour is empowered to make a levy on employers. The Minister is also empowered to vary the levy rate, and to provide for a differential rate for different categories of employers. Currently the levy is fixed at 1% of the total gross wage and salary bill of all employers in the country except for the wages and salaries of certain specified employees.
Several other statutes complete the labour legislation framework: the Shop (Regulation of Hours and Employment) Act, the Health and Safety at Work (OSH) Act of 1996 (which subsumes the Factories Act, Petroleum Act, Pesticides Act and Ionizing Radiations Act), Workmen’s Compensation Act, Wages Councils Act and the Training and Productivity Authority of Fiji Act of 2002. Under the Health and Safety at Work Act, the following Regulations have so far been gazetted: Health and Safety at Work (Representatives and Committees) Regulations 1997, Health and Safety at Work (Training) Regulations 1997, Health and Safety at Work (Administration) Regulations 1997 and Health and Safety at Work (General Workplace Conditions) Regulations 2003. In 2005, the Ministry of Labour, Industrial Relations and Productivity presented to the tripartite National Occupational Safety Advisory Board (NOHSAB) the draft OSH Conflict Resolution Regulations for endorsement before tabling at the cabinet Sub-Committee on legislation. These Regulations are expected to be in effect during 2006 and will dovetail the settlement of OSH disputes with those in other areas of employment, which will be covered by the Employment Relations Bill when it is enacted later 2006.
Industrial relations in Fiji were developed historically during the colonial period when the economy was predominantly based on agriculture, although the major source of foreign exchange earning is still sugar. In recent years, the tourism and manufacturing sectors have been substantially contributing to Fiji’s GDP. With the uncertainty of extension of the Lomé Convention, and that of SPARTECA, Fiji’s economic future depends on strengthening tourism, the manufacturing sector, alternative and/or higher yield agricultural products, and better utilization of natural resources, such as water, land and air. A surge in local and foreign private investor confidence is leading to expectations of an economic boom, driven mainly by tourism, construction, growth of some manufacturing industries and new businesses (such as the emergence of an embryo information technology industry). The major employment growth in Fiji is going to be created in tourism and manufacturing industries. Any new industrial relations system in Fiji will be based on the introduction of the revised labour legislation.
In Fiji, a significant part of the formal sector workers are organized, while the informal sector workers remain outside the orbit of the trade union movement. Workers in the manufacturing sector are mostly unorganized. As noted above, recently Fiji has undertaken a major task in reviewing its labour legislation with the aim of modernizing it. Major tripartite stakeholders have taken part in commenting on the Employment Relations Bill. Once enacted it will be part of the response to Fiji’s challenge to promote good governance and industrial harmony to ensure its economic and social emancipation with the active participation of all productive forces such as government, employers’ and workers’ organizations, and civil society institutions.
Political turmoil (there have been three military coups since independence in 1970, as well as the 2000 coup) had a profoundly negative effect on Fiji’s economy. Formal dialogue on labour issues was completely shattered. With the formation of the elected Government, the situation has much improved, but the “Tripartite Social Dialogue Forum” could still not be reactivated. There are major issues outstanding, such as collective bargaining, discrimination in employment and occupation, mainstreaming gender equality, progressive elimination of child labour, managing the HIV/AIDS epidemic, safety at work, skills loss, creation of employment, platform for dialogue, appropriate mechanisms for dispute settlement etc., which require improved knowledge, experience, skills, institutions, institutional capacity, better and equal understanding of labour issues and more importantly, interpersonal and professional relationships on the basis of rights, equality and justice.
In summary, the tripartite bodies which include seats for the most representative workers’ and employers’ organizations include: the dormant Tripartite Forum (originally established in 1976 and acknowledged by commentators to have been responsible for successful institutionalised social dialogues in its early years, until political party/trade union linkages led to boycotts by the trade unions); the Labour Advisory Board (set up under the 1965 Employment Act, currently consisting of 24 members (4 from government, 8 worker and 8 employer representatives and 4 “other persons” appointed by the Minister, sometimes designated as independent members), soon to be replaced by the Employment Relations Advisory Board; the National Economic Development Council (created in 2003 under the Ministry of Finance and National Planning); the Fiji National Training Council renamed the Training and Productivity Authority of Fiji (TPAF) in 2002 (with a tripartite management structure); Fiji National Provident Fund (also under the Ministry of Finance and National Planning, with a tripartite management structure); the National Occupational Health and Safety Advisory Board (currently comprising the CEO for Labour as Chairperson and 2 Deputy Chairpersons, representatives of 5 other Ministries and 5 members each from the most representative employers’ and workers’ organizations); and the 10 industry-based Wages Councils (each comprised of 2 independent members, 2 employers’ and 2 workers’ representatives).
Contract of employment (including termination of employment)
Parts V and VI of the Employment Act deal with oral and written contracts of service. Although that text is soon to be replaced with the Employment Relations Bill, the following short description retains the essence of the legal framework that will most likely be carried over. The only restriction under written contracts concerns the minimum age (15) of entry into employment (section 37(1)). A young person (between the ages of 15 and 18) may not enter into an employment contract except in an occupation approved by the district or labour officer as not being injurious to their moral or physical development (section 37(2)). This is one provision that may change in the new law.
Oral contracts can be made on a daily basis where wages are paid for each day’s work or for periods of up to one month. Sections 22 and 23 contain a presumption that where a contract extends beyond one month, the employer and employee have entered into a new oral contract for a similar period on the same terms and conditions. Section 261 permits contracts of service also for task or piece work or for a journey to be performed for an agreed remuneration, at the end of which the contract terminates. Under section 24(1), an oral contract shall, subject to any specific contrary agreement that may have been made by the parties, be terminable by either party-
(a) where the contract period is less than one week and wages are paid at intervals of less than one week, at the close of any day without notice;
(b) where the contract period is one week or more but less than a fortnight or where wages are paid weekly or at intervals of more than a week but less than a fortnight, by not less than seven days' notice before the expiration of such period;
(c) where the contract period is a fortnight or more but less than a month or where wages are paid fortnightly or at intervals of more than a fortnight but less than a month by not less than fourteen days' notice before the expiration of such period;
(d) where the contract period is one month, by not less than one month's notice before the expiration of such period.
Under section 24(2), notice to terminate may be given orally or in writing.
According to section 28, an employer shall not dismiss an employee summarily except in the following circumstances: (a) where an employee is guilty of misconduct inconsistent with the fulfillment of the express or implied conditions of the contract of service; (b) for willful disobedience to lawful orders given by the employer; (c) for lack of the skill which the employee is meant to possess; (d) for habitual or substantial neglect of duties; and (e) for continual absence from work without the permission of the employer and without other reasonable excuse.
Certain contracts must be in writing: section 38(1) lists them as: when they are made for a period of or exceeding six months or a number of working days equivalent to six months; when they stipulate conditions of employment which differ materially from those customary in the district of employment for similar work; or when it is a foreign contract of service.
Under section 35(1), every contract shall be presented for attestation to a district officer, labour officer or other officer authorised for this purpose by the CEO for Labour. In addition to the original of every contract attested under this Act, three copies shall also be made. One copy shall be delivered to the employer, one to the employee, or in the case of a batch of employees to one of their number, and one to the CEO for Labour. The original of every attested contract shall be deposited with and preserved by the attesting officer.
Under section 36, every employee who enters into a contract shall be examined by a medical officer and whenever it is practicable, the employee shall be medically examined and a certificate issued before the attestation of the contract. The CEO for Labour may exempt certain employees from this requirement, namely employment in any agricultural undertaking not employing more than twenty-five employees or employment in the vicinity of the employee's home on work which is not of a dangerous character or likely to be injurious to the health of the employees.
The contract terminates at the expiry of the stated term or at the employee’s death (section 40). Where an employee is unable to fulfill the contract due to illness or accident, the contract may be ended, with the approval of the district or labour officer, subject to safeguarding the employee’s right to any wages earned and any compensation due to the employee in respect of the accident or disease, and a right to repatriation (section 41(1)).
Hours of work and rest periods
Section 102(1)(c) of the Employment Act empowers the Minister, after considering the advice of the Labour Advisory Board, to make regulations prescribing the hours of work of women, young persons and children, and subsection (1)(i) covers the making of regulations prescribing for any period the maximum number of hours during which any employee or class of employees may be required to work.
The Employment Relations Bill, Part 8, makes clearer the hours of work applying in Fiji. Draft section 72 states: “(1) Subject to subsections (2) and (3), an employment contract must fix at not more than 48 the maximum number of hours (exclusive of overtime) to be worked in a week by a worker bound by that contract. (2) If the number of hours (exclusive of overtime) fixed by an employment contract to be worked by a worker in a week is as prescribed by subsection (1), the parties must fix the daily working hours so that those hours are worked on not more than 6 days of the week. (3) If the maximum number of hours (exclusive of overtime) fixed by an employment contract to be worked by a worker in a week is not more than 45, the parties to the contract must fix the daily working hours so that those hours are worked on not more than 5 days of the week.” According to section 73(1), this Part of the Bill does not apply to workers employed in managerial or executive positions, and subsection (2) excludes a contract of service made between an individual that worker by reason of special qualifications, experience, or other qualities possessed by that worker and does not involve discrimination in relation to that worker or any other worker based on the gender of the worker.
Specific regulation of shop hours was introduced in the Shop (Regulation of Hours and Employment) Ordinance (No. II of 1964), subsequently amended in 1965, 1966 and 1975. The Act applies to any town and to any other area to which the Minister applies all or part of the provisions of the Act by notification in the Gazette. Sale of liquor by a hotel publican to hotel guests is excluded from this Act. On at least one weekday in each week, all shop assistants in a shop are not to be employed about the business of a shop after one o'clock in the afternoon, making a total of working days of no more than five and a half. The employer is required to prominently display a notice in the shop on the day of the week on which the shop assistants are not employed after one o'clock. Shops can fix different days for different shop assistants, but only if the shop is exempted from closing under the provisions of the Act. Such shops include those for which the local authority grants exemptions, or those which sell ‘dairy-shop’ type goods (newspapers, confectionery, bread, eggs, milk and milk products, cigarettes, fruits, vegetables, camera films, etc.), cooked meals, intoxicating liquor; medicines, medical and surgical appliances, ice, petroleum; and goods sold by auction, or those in the business of barber or hairdresser.
The maximum work hours per day is 10, excluding meal intervals. These 10 hours should be completed within 11 hours from the commencement of a day's work. There, however, are exceptions to this for shops that are allowed to open until 9pm on Fridays, or on the Thursday immediately preceding Good Friday, and on 4 days preceding Christmas Day and New Year’s Day, including Sunday. On these days, the daily hours of work could be extended to the closing time of the shop. Shop workers are to be allowed not less than 45-minute interval for meals for persons who are employed between the hours from 11.30am to 2.30pm; this is so for workers who take their meals in the shops or in a building attached to the shop. For those who take their meals outside the shops, the meal interval is one hour. This interval is to be within the 11.30am-2.30pm period. For workers employed in the sale of refreshments or intoxicating liquor, the meal interval is to be outside these hours. In any case no person is to be employed for more than six hours without an interval of at least twenty minutes being allowed during the course thereof.
The law disallows any shop to be open on Sundays and public holidays (13 public holiday days are listed under the Public Holidays Act). However, the local authority may grant exemptions to this requirement as it may consider appropriate.
Section 102(1)(r) of the Employment Act empowers the making of regulations on entitlements to holidays with pay. The Employment Regulations issued under this section in 1965, and amended in 1976, Part IV, prescribe annual holidays with pay in the following terms. Regulation 12 states that after each year of employment with an employer, an employee shall be given 10 working days holiday paid at the normal wages she/he would have received during that period, provided that the employee shall loose the entitlement if absent from work for more than 36 working days during that year not being an absence that is certified by a medical practitioner to be due to sickness. The annual leave may be taken in one unbroken period or, at the request of the employee, in two or more periods one of which must be a continuous period of one week. Regulation 15 requires the annual leave to be taken not later than six months after the completion of the year in which it was earned. Regulation 13 provides, among other things, that if the employment is terminated before the leave has been taken, the employer shall pay the employee a sum equal to not less than five-sixths of a day’s wages for each completed month in the period. Regulation 18(1) annuls any agreement by an employee to forego the paid annual leave, even in return for compensation. Regulation 18(2), however, permits an employer with the written approval of the CEO for Labour to negotiate and agree in writing with all or any of its staff to defer and accumulate the paid annual holidays over a period not exceeding four years.
Draft section 59 of the Employment Relations Bill will retain most of the above system. It states:
“59(1) After each year of employment with an employer, a worker must be given 10 working days holiday and must be paid in respect of such holiday the wages the worker would have been paid for the time the worker would normally have worked during that period.
(2) Notwithstanding subsection (1), a worker is not entitled to the paid annual holiday in respect of any year during which the worker attended work if the worker has been absent from work for more than 20 normal working days during that year, except where the absence has been due to sickness certified by a medical practitioner, or the worker is excused from work by the employer or is prevented from attending work by any other cause acceptable to the employer.
(3) If a worker is entitled to a paid annual holiday under this section, the employer must permit the worker to take the annual holiday in one unbroken period or, at the request of the worker, in two or more periods, one of which must be a continuous period of one week.”
The Human Rights Commission Act of 1999, section 2, defines prohibited grounds of discrimination to mean those listed in section 38(2) of the Constitution (cited above). Section 17(2) defines sexual harassment as a prohibited ground of discrimination, punishable (under section 154(4) of the Penal Code) as indecently insulting or annoying females. Section 17(3) lists the carious areas related to employment where direct or indirect adverse discrimination or harassment are banned. Section 18 of the Act recognizes that genuine occupational qualifications are not discrimination for the purposes of the statutory protection. Part 3 contains provisions regarding unfair discrimination in employment and prohibits sexual harassment, discrimination in employment applications, and victimization of persons because of their actions on behalf of their rights under the Bill of Rights. Section 7(1) empowers the Commission to investigate alleged contraventions of human rights and unfair discrimination, of its own motion or on complaint by individuals, groups or institutions on their own behalf or on behalf of others, and to resolve complaints by conciliation or refer unresolved complaints to the courts for decision. In 2001, there had been 19 valid labour-related complaints relating top unfair labour practices, dismissals and terminations lodges with the Commission.4
The Employment Act, soon to be replaced by the Employment Relations Bill, currently restricts women and children working at night. Section 65 of the Act was amended in 1996 to permit the Minister, in consultation with the Labour Advisory Board, to issue an order prescribing the conditions of employment of women and young persons on night work in any industrial undertaking. “Night work” is defined as any work between 6 p.m. of any day and 6 a.m. of the following day. Nor may these categories of workers work in underground mines, except for women in certain managerial or health and welfare posts, or those women undergoing training in an underground part of a mine or going underground for occasional visits for the purposes of non-manual work (section 72 and Mining Regulations section 97(2)).
The Employment Act makes no specific provisions for workers with disabilities, but the Employment Relations Bill, if adopted, will.
The Fiji Bureau of Statistics estimates that in 2002 the population stood at 835,000. Its 1997/98 Annual Employment Survey found that paid employees consisted of 74,771 (66.5%) males and 37,748 (33.5%) females. Women make up 35% of the workforce and 3% of decision-makers at the national level.5 The ethnic breakdown showed, for 1998, 45.9% Fijian, 47% Indian and 7.1%. In 1997 the Government upgraded the department of Women and Culture into a ministry; gender focal points have been appointed in all Government Ministries to promote the development of gender sensitive policies and programmes and to implement the National Plan of Action. In 1998 an Inter-Ministerial Committee in Women was established. The following year an Equal Employment Opportunity Policy was initiated by the Public Service Commission. It provides guidelines and sets the benchmark from which the various ministries and departments are expected to formulate their own EEO policies.
The Government has issued a policy document “50/50 By Year 2020”, constituting a 20 year development plan for the enhancement of participation of indigenous Fijians and Rotumans in Fiji’s socio-economic development. While this provides for the affirmative action and social justice programmes envisaged in the Constitution (see above), some commentators criticize such policy documents as jeopardizing equality among citizens.
Maternity protection and leave
At present Part IX of the Employment Act provides maternity protection. An entitlement of 84 days (42 before and 42 after the birth) maternity leave and a maternity allowance is provided by section 74(1). A daily maternity allowance of F$5.00 is prescribed by the Act for the duration of the leave period, subject to the woman having being employed in the nine months prior to confinement for a period, or periods, amounting to a total of not less than 150 days (section 74(2)). Under section 79, a woman on maternity leave may not be dismissed, but if her absence exceeds a total of three months, her employer could dismiss her. The Employment Relations Bill improves the maternity benefit provision, with draft text proposing that a woman is entitled to her wages while on leave for the first two births, and thereafter to an allowance in an amount to be prescribed.
Public servants’ maternity protection comes under the General Orders Leave regulations of 1993. Women in the civil service are entitled to 42 days leave following confinement. For the first three confinements, permanent and temporary officers are granted the annual leave to which they are entitled plus further leave on full salary for a maximum of 84 days pre- and post-confinement. In the event of illness arising from pregnancy or confinement, a woman may be granted leave without pay by her Head of Department for a further 60 days. Whilst on unpaid leave, the female civil servant is also entitled to the F$5.00 allowance.
Minimum age and protection of young workers6
At present Part VIII of the current Employment Act, as amended, provides against under-age employment. “Child” is defined as a person who has not attained the age of 15 and “young person” is defined ass being over the age of 15 but under the age of 18 years. Section 63 currently bans the employment of children in any industrial undertaking. Section 59 also prohibits the employment of children under 12 years of age, except where the child is engaged in light work in a family agricultural undertaking. Section 61 protects against children working in occupations which are dangerous, unsuitable or injurious to health. Section 70 bans child work on ships unless certified by a medical officer as being fit for such employment, although section 69 clarifies that working as a trimmer or stoker on board a ship is prohibited. As noted above, section 65 of the Act was amended in 1996 to permit the Minister, in consultation with the Labour Advisory Board, to issue an order prescribing the conditions of employment of young persons (as well as women) on night work in any industrial undertaking. “Night work” is defined as any work between 6 p.m. of any day and 6 a.m. of the following day.
According to section 3 of the Fiji National Training Act, 1973 as amended/renamed in 2002, one of the entry requirements in any designated trade or occupation is that an apprentice must attain the apparent age of 15 years. Section 4 of the Act further provides for the conditions to be implied in every agreement of apprenticeship. In particular, it states that the employer must train the apprentice in accordance with the training recommendations; make available to the apprentice the requisite tools for the work, all necessary educational textbooks and drawing instruments; and must not require or permit the apprentice to work such hours as would necessitate the apprentice being absent from a day, evening or night-related education class.
Section 50 of the current Employment Act provides for the protection of wages, stipulating in particular in subsection (2) that every employer shall, when paying an employee, provide that employee with a written statement containing the particulars in respect of the relevant wage period for
(a) the employee's name and Fiji National Provident Fund membership number;
(b) the nature of employment or job classification;
(c) the days or hours worked at normal rates of pay;
(d) the rate of wages;
(e) the type of wage period;
(f) the amount of overtime worked during any wage period and the rate of wages payable for such overtime; and
(g) (i) the total earnings of the employee; (ii) any allowances or other sundry payments due to the employee; (iii) any, deductions made from the total earnings of the employee; and (iv) the total amount due to the employee after all deductions have been made in respect of each wage period.
The proviso to this section states that the provisions of subsection (2) shall not apply to the employer any domestic servant within the meaning of this Act. Section 51 lists the permitted deductions that an employer may take from the wages. Section 52 prohibits remuneration in a form other than wages.
At present Fiji has industry-based minimum wages prescribed as Wage Regulation Orders. The wages and condition of employment under these Orders are recommended by Wages Councils, currently in place for 10 industries. A Council consists of independent members as well as workers’ and employers’ representatives. The following Wages Regulation Orders are in force:
- Mining and Quarrying (27 May 2002)
- Wholesale and Retail
- Sawmilling and Logging (16 January 2004)
- Printing (16 January 2004)
- Road Transport
- Hotel & Catering
- Manufacturing (17 March 2003)
- Building, Civil & Electrical (2003)
- Garment (16 January 2004)
- Security Services (16 January 2004)
The basic minimum wage rate other than for trainees under these Orders vary considerably. In Garment industry the basic wage rate is $1.36 per hour while in others the basic rate for unskilled workers range from $1.65 to $2.08 per hour. The skilled basic rate ranges from $1.84 in Hotel & Catering to $2.57 in Mining & Quarrying. Some commentators suggest that the relatively low wage rates fixed by the Wages Councils directly impact on poverty levels and decent work in Fiji.7 Labour officers may carry out inspections to ensure that Wages Orders are complied with.
An apprenticeship scheme operates in Fiji under the Fiji National Training Council. According to a 2003 study, there were 374 apprentices in training in various trades and the current minimum hourly wage rates were: Trades F$1.33; and Technical F$1.48. The Wages Regulation Orders also provide for learners and trainees; for example, student trainees under the Hotel & Catering Trades Order receive F$1.25 per hour. A learner in the garment industry receive F$1.15 an hour.
Trade unions and employer’ organizations
The Trade Unions Act amended up to 1978 will be repealed by the Employment Relations Bill. The Trade Unions Recognition Act was enacted in 1998 with the specific purpose of providing for the recognition of trade unions by employers. The Act defined trade union recognition, as recognition of a trade union by an employer for the purpose of collective bargaining. Trade unions must represent more than 50% of the employees in an enterprise. Such recognition could be voluntarily given by employers or, where employers refuse recognition, accorded by the State as compulsory recognition. Section 14 allows strikes or lockouts arising out of a recognition dispute to be declared illegal. This Act too will be repealed by the Employment Relations Bill. But elements of the old system will find an echo in the Bill. Therefore this profile summarizes the future system.
Part 14 of the Bill covers registration of trade unions. Under draft section 119 (1) all trade unions must be registered; under subsection (2), an application for registration must be made in the prescribed form and signed by more that six members of the applicant union. Draft section 130 and the Schedule 5 give details that must be included in the rules of trade unions, including the aims for which the organization is established. Section 127 (1) of the Bill enumerates the qualifications for election to trade union office, including (a) the necessity of having been engaged or occupied for a period of not less than 6 months in an industry, trade or occupation with which the union is directly concerned; and (b) not having been an officer of any other trade union or having been engaged in any capacity for another trade union. However, subsection (2) states that the offices of secretary and treasurer of a registered trade union may be filled by a person who has not been engaged or employed in an industry, trade or occupation with which the union is directly concerned; and subsection (3) restricts a person who has been convicted of an offence relating to dishonesty, moral turpitude or violence for which the penalty prescribed under a written law is 6 months imprisonment or more from being an officer of a registered trade union for 3 years after the date of the conviction. Sections 120 and 125, respectively, empower the Registrar to register an applicant trade union or refuse to register it, giving reasons within set time limits. Section 128 gives the Registrar power to examine the trade union’s books at any time. Under draft section 139, a person aggrieved by a decision of the Registrar under this Part may, within 30 days of the date of the decision, appeal the decision to the Employment Relations Tribunal.
The Industrial Associations Act of 1942, amended most recently in 1991 and 1994 - and not affected by the Bill – is also relevant. It makes provision for the formation, compulsory registration and regulation of industrial associations grouped around industries. Some commentators argue that there is no need for this multiplicity of legislative provisions surrounding workers’ and employers’ organizations.8
“Associations” are defined under this Act to include employers’ and employees’ groups associated primarily for protecting or furthering their interests or the interests of the association. Under section 5, any association applying for registration with the Registrar must submit three copies of its constitution and rules, duly authenticated by signature of its president and general secretary (and any other documents if so requested). If the Registrar refuses to register (for reasons listed, such as inconsistency with the requirements of the Act), the applicant association shall be dissolved within one month of the notification of the refusal to register (section 5(5)); that decision is appealable to the Supreme Court within one month after the notice (section 17). The Act lists a series of matters that must appear in the associations’ constitutions, such as appointment of office bearers, fixing of level of membership dues, keeping of books and records, and the procedures for winding up the association (section 8). Annual returns must be submitted by the secretary of the association to the Registrar before 31st March in every year in respect of the preceding year, along with copies of any new rules or changes in officers (section11). Section 14 allows the Registrar to make inquiries if at any time the Registrar has reason to believe that an industrial association or any of its officials is not observing the provisions of its own constitution or is otherwise acting unlawfully. Section 22 on freedom of association bans employer interference by making it a condition of employment that an employee shall not be or become a member of an industrial association.
In practice the employers are represented by the Fiji Employers’ Federation (FEF), and the workers by the Fiji Trades Union Congress. There is a Confederation of Public Sector Unions, affiliated to the FTUC, which comprises the Fiji Public Service Association, Fiji Teachers’ Union and the Fiji Nurses Association. Another workers’ central organisation, the Fiji Islands Council of Trade Unions has occasionally been present at ILO Conferences.
The origins of the FEF go back to 1060. Twenty-one member organisations formed the original FECA in 1960 and by early 2004 there were 236 enterprises which are registered as members of FEF, ranging in size from the smallest private company to the largest public company, as well as local urban government authorities and statutory bodies, representing 36,248 employees. Any organisation that is registered as an employer with the Fiji National Provident Fund (FNPF) is eligible to apply for membership of FEF. Its members cover the full range of private enterprise endeavours, as well as many of the public sector activities entrusted to statutory undertakings or Government owned corporations. FEF’S aims include: (1) Promotion of free trade and commerce and the economic development of Fiji; (2) Provision of a forum for internal, bipartite and tripartite consultations and exchanges of information; (3) Promotion of co-operation between employers in Fiji’s many industries, businesses, and commercial activities, as well as with the various statutory organisations; (4) Promotion and acceptance of the concept that co-operation and consultation among employers is indispensable to the continued growth of Fiji; (5) Realization that although each member is autonomous and independent of other members, there is an inter-dependence between employers in acting in concert for the common good of all in Fiji; and (6) Promotion of the understanding that the continued growth of employment opportunities in Fiji may be sustained only by the maintenance and development of a strong, dynamic and profitable private sector.
Part 16 of the Employment Relations Bill promotes and encourages collective bargaining. Of note is draft section 149, which states that there is a duty of good faith on both the union and an employer bargaining for a collective agreement. Under draft section 152, the Minister may direct the Board to develop a Code of Good Faith, the object of which is to provide guidance about the application of the duty of good faith under this Part in relation to collective bargaining. Subsection (2) notes that the Tribunal or the Court may, in determining whether or not the parties to a collective bargaining have dealt with each other in good faith in bargaining for a collective agreement, have regard to any such Code.
In Fiji, wages are fixed mainly by collective agreements. In sectors where no collective agreements exist (mostly due to the absence of trade unions), wages are determined by Wage Orders enacted by the Minister of Labour on the recommendation of the Wages Councils.
According to the Ministry of Labour’s Annual Report for Year ended 31st December 2003, 145 collective agreements were registered in 2003. According to the same report, the 10 Wages Councils met and concluded four new Wages Regulation Orders and five proposals during 2003.
Disputes settlement, strikes and lockouts
The Employment Relations Bill will streamline conciliation, mediation and adjudication procedures to settle labour disputes, introducing institutionalised mediation, an Employment Relations Tribunal and an Employment Relations Court.
Part 17 of the Bill deals with employment disputes. An employer who is a party to the dispute or a registered trade union that is a party to the dispute may report a dispute in writing and in a prescribed manner to the CEO for Labour. If accepted by that official, she/he must (a) refer the employment dispute to the Tribunal if the dispute relates to interpretation, application or operation of an employment contract (dispute of rights); or (b) in any other case, refer the employment dispute to Mediation Services (dispute of interests). Under draft section 17, the Tribunal must make its decision on a matter referred to it under this Part without delay and, in any case, within 60 days from the date of the completion of the hearing. The right of appeal is assured by draft section 173 in the following manner: “(1) If the Chief Executive Officer rejects a report under this Part, the aggrieved party may appeal to the Tribunal. (2) Any party that is aggrieved by a decision of the Tribunal under this Part may appeal to the Court.” In addition, under draft section 242(1) a party to proceedings before the Tribunal who is aggrieved by a decision of the Tribunal may appeal as of right or by leave to the Court. Under subsection (2), an appeal to the Court must be made in the prescribed manner within 28 days from the date of the decision of the Tribunal and must specify (a) the grounds of appeal; (b) the decision or the part of the decision appealed from; and (c) the precise form of the order which the appellant proposes to seek from the Court.
Part 18 deals with strikes and lockouts, and lays down requirements for a secret ballot prior to strike action, 28 days written notice prior to a lockout, and certain other particulars. Part 19 deals with such action in essential services. Schedule 7 contains a list of 26 essential services, namely: (a) Air Transport; (b) Air/Sea Rescue Services; (c) Air Traffic Control Services; (d) Banking Services; (e) Civil Aviation Telecommunication Services; (f) Customs Services; (g) Electricity Services; (h) Emergency Services in times of national disaster; (i) Fire Services; (j) Health Services; (k) Hospital Services; (l) Hotel Services; (m) Immigration Services; (n) Mediation and Judicial Services; (o) Light House Services; (p) Manufacture, conveyance, loading and marketing of sugar or ethanol; (q) Meteorological Services; (r) Mine Pumping Ventilation and Winding; (s) Port and Docks Services including stevedoring and lightering, loading and unloading of cargo from or on to any ship and dispatch of any cargo to destination; (t) Quarantine Services and Animal Services of the Government (u) Sanitary Services; (v) Supply and distribution of fuel, petrol, oil, power and light essential to the maintenance of the above services; (w) Telecommunications and Telegraphs; (x) Transport Services necessary for the operation of any Services under paragraph (r); (y) Vault Security Services of the Reserve Bank of Fiji; and (z) Water Services. Draft section 186(1) states that “ If a strike is contemplated by a trade union in respect of workers in or in control of, an essential service in pursuance of a dispute between the workers and their employer, the trade union must (a) conduct a secret ballot in accordance with Section 175; and (b) in writing, give at least 28 days notice of strike to the employer and a copy to the Chief Executive Officer.” Peaceful picketing is permitted under draft section 255(1).
Until the Bill is adopted, it is the Trade Disputes Act of 1973, as amended, that makes provision for the settlement of trade disputes and the regulation of industrial relations. Section 2 defines a “trade dispute” as “any dispute or difference between employers and employees or between employees and employees or between employees and any authority or body, connected with the employment or with the terms of employment, or with the conditions of labour, of any person.” Section 4 of the Act lays down the labour disputes settlement procedure. An employee claiming a dispute reports the matter to the Permanent Secretary for Labour, who will either: accept or reject the claim of a dispute; inform the parties that it is not a trade dispute; refer the matter back to the parties with proposals to settle it through negotiations; appoint a person to mediate and conciliate the dispute; take steps to conciliate; cause an investigation of the dispute using an independent person; and report to the Minister who may then, as he or she thinks fit, refer the dispute to conciliation. Disputes can then be brought before the Arbitration Tribunal, whose award is binding on all parties to the dispute and can only be challenged by way of judicial review in the High Court. Under the Trade Disputes Amendment Decree of 1992, disputes can also be brought before a 3-person Disputes Committee, which can be set up to determine disputes over interpretation, application or operation of collective agreements or any dispute that is not a dispute of interest (section 3). For the Public Service, a Public Service Appeals Board is created under section 13 of the Public Service Act; appeals can be made to the courts from any decision of the Board.
According to the Ministry of Labour’s Annual Report for Year ended 31st December 2003, 172 trade disputes were lodged in 2003 (and 26 were carried over from 2002). Of the new cases, 54 cases were settled, 34 cases were referred to arbitration and the others were either rejected or referred back to the parties. Sixteen strike actions were recorded, a 60% decrease over the 25 recorded for the previous year. The Annual Report notes that there were three major strikes, involving the Pacific Fishing Company, Covec workers and the Coral Sun Transport Company lockout. All cases were arbitrated. Additionally, strike notices were issued by three public sector unions: Fiji Public Service Association, Fiji Teachers Union and the Fiji Nursing Association against the Public Service Commission concerning the 2003 Log of Claims on the Cost of Living Adjustment (COLA) and merit increases.
References and hyperlinks to relevant websites
- Ministry of Labour, Industrial Relations & Productivity: Annual Report for Year ended 31st December 2003, Parliament of Fiji: Parliamentary Paper No. 16 of 2004, Promoting labour excellence in Fiji.
- Chand, G.: The labour market and labour laws in Fiji; Fiji Institute of Applied Studies, Lautoka, for the department of Economics, University of the South Pacific, Suva, May 2006.
- Ministry Of Labour, Industrial Relations and Productivity
- Fiji Trade Unions Congress
- Fiji Employers’ Federation
- Fiji Human Rights Commission
- ILO Conventions ratified by Fiji
1 CERD: National report, Concluding Observations dated 21 March 2003: CERD/C/62/CO/3, para. 18; CEDAW National report, Concluding Observations, 2002: A/57/38 (Part I), para.48.
2 International Labour Conference, 95th Session, Geneva, 2006, Provisional Record No. 22/3.
3 The author is indebted to information for this part contained in “Report on aspects of discrimination in employment and occupation in Fiji” by Ms C. L. Mere Pulea, Institute of Justice and Applied Legal Studies, University of the South Pacific, 2003.
4 Fiji Human Rights Commission: 2001Annual Report; page 29.
5 Women’s National Action Plan, 1999-2008, Vol. 2.
6 See, also, the initial report of Fiji to the UN Committee on the Rights of the Child (CRC/C/28/Add. 7) dated, 24 September 1996.
7 FTUC: “A Paper on General Minimum Wage”, prepared by Mr. O. P. Singh, 1 May 2003.
8 Chand, G.: The labour market and labour laws in Fiji; Fiji Institute of Applied Studies, Lautoka, for the Department of Economics, University of the South Pacific, Suva, May 2006, page 59: “There is no effective purpose being served by two different legislation covering the same matters. There is a need for one composite legislation covering all matters relating to the regulation of relations between employers and unions.”