a critical evaluation of the...
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A CRITICAL EVALUATION OF THE ‘EMPLOYMENT
RELATIONS PROMULGATION 2007’ AND SOCIAL
PARTNERS IN FIJI: CONCERNS, DILEMMAS AND
IMPLICATION FOR FUTURE EMPLOYMENT
RELATIONS
By
Jone Fuala LAKO
A Thesis Submitted in Partial Fulfillment of the requirements for the
Degree of Masters of Arts in
Management and Public Administration
School of Management and Public Administration
Faculty of Business and Economics
The University of the South Pacific
2008
© Jone Fuala LAKO
i
DECLARATION OF ORIGINALITY
Statement by Author
I, hereby declare that the work contained in this Thesis is my very own and where I have
used the thoughts and work of others I have clearly indicated this.
Signed: ------------------------------
Jone Fuala LAKO, s95000180
5th December 2008
------------------------------------------------------------------------------------------------------------
Statement by Supervisor
I hereby confirm that the work contained in this Thesis is the work of, Mr. Jone F.
LAKO, unless otherwise stated.
Signed: ------------------------------
Dr. Anand CHAND (PhD UK), Senior Lecturer & Industrial Relations Coordinator
5th December 2008
ii
DEDICATION
This thesis is dedicated to my parents; Mr. Caucau Lako and late Vakacagicagi
Macawatolu (a.k.a Jiutajia Vakacagicagi) and also to my grandparents; the late Saimoni
Murivosa and late Jimaima Tareguci, as well as; the late Yet Sen Wong and late Jimaima
Reveni, respectively, the most wonderful people in my life.
iii
ABSTRACT
Fiji’s long pending labour reform becomes reality through the complete overhaul of the
old labour legislation with the drafting of the ‘Industrial Relations Bill 1997’. It was
modernized during the formulation process that resulted in the ‘Employment Relations
Bill 2004’. It was enacted as the ‘Employment Relations Promulgation 2007’ by the
Bainimarama led interim Government.
The change was adamant due to the well-known phenomenon that industrial relations
connote adversarial approach to employment grievance and disputes. It originated from
‘industrial revolution’ where the politics of “divide and rule” was the order of the day.
Fiji was exposed to this norm during her colonial history until independence, fueled by
the colonial legislation design and culture that promoted confrontational approach. Fiji
like any developing country cannot afford to continue to exist under this unproductive
development. For Fiji to compete with the developed countries urgently need to introduce
new policy measures that would effect the desired outcomes in how employment
relationships are conducted. As such, the ‘Employment Relations Promulgation 2007’
was intended to overhaul the underlining principles of Fiji’s old labour legislation. This
does not only do away with the confrontational nature of employment relationships. It
also bridges the gap of the relationships between workers and employers based on mutual
trust, respect, dignity and fair dealing.
This Thesis critically evaluates the ‘Employment Relations Promulgation 2007’ in the
new industrial and employment relations’ environment through:
i. The examination of the development and the formulation process of Fiji’s labour
legislation leading up to the ‘Employment Relations Promulgation 2007’.
ii. The examination of the role of social partners and their major concerns and the
processes involved in the development of the ‘Employment Relations
Promulgation 2007’.
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The Thesis is also aimed to compare and contrast between the previous (old) and the
current (new) legislation. Whilst Chapter 1 justifies the rationale of the study, Chapter 2
explores the methodological framework. Chapter 3 reviews the theoretical and literature
of the Thesis whilst Chapter 4 examines the historical development of industrial relations
in Fiji. The formulation of the ‘Employment Relations Promulgation 2007’ (stages of
development) is examined in Chapter 5 while Chapter 6 critically evaluates the new
legislation (‘Employment Relations Promulgation 2007’). Chapter 7 examines the
research result and the implications of ‘Employment Relations Promulgation 2007’ for
future industrial relations environment with relevant social partners and their concerns
whilst Chapter 8 summarizes the findings, provides some suggestions and the concluding
remarks.
The Thesis identifies some of the fundamental issues of industrial and employment
relations in Fiji. It also provides interesting findings that is useful for the review of the
labour legislation in the future and adds valuable literature to the discipline for future
research.
v
ACKNOWLEDGEMENT
I would like to acknowledge the presence and the will of the Almighty throughout the
research. A very sincere gratitude to all individuals whose kind assistance is greatly
appreciated that made possible the completion of this Masters Programme at the
University of the South Pacific.
I take this opportunity to thank my Principal Supervisor, Dr. Anand Chand for his
intellectual, conceptual and theoretical insights in industrial and employment relations
who refined my ideas. He was willing to provide guidance and support with his prompt
feed back through out the writing stages of this Thesis. I would also like to thank Dr.
Ram Reddy Reguri for his timely advice and contribution.
Many thanks go to my sponsors the Commonwealth of Australia, (through the Australian
Regional Development Scholarship Programme), and the University of the South Pacific
(through the Graduate Assistance Programme), specifically the School of Management
and Public Administration, for the kind assistance. Without the financial support, it
would be very difficult on my part to undertake my postgraduate studies at the University
of the South Pacific.
My sincere thanks and gratitude goes to my interviewees, friends and to other various
individuals for their moral support and encouragement during the course of my study.
Last but not the least, I wish to thank my family especially my wife Sofaia Lako and my
children; Talei, Railala, Filomena and Imanueli Lako for their continuous support during
my studies at the University of the South Pacific.
vi
ACRONYMS
International and National Organizations/Agencies and General TermsADB Asian Development Bank
COLA Cost of living Adjustment
EEO Equal Employment Opportunity
ERAB Employment Relations Advisory Board
ERP Employment Relations Promulgation 2007
EU European Union
FBoS Fiji Bureau of Statistics
FCTU Fiji Council of Trade Unions
FECA Fiji Employers Consultative Association
FEF Fiji Employers Federation
FICTU Fiji Island Councils of Trade Unions
FIWC Fiji Industrial Workers Congress
FTUC Fiji Trade Union Congress
GSP General System of Preferences
HASAWA Health And Safety And Work Act 1996
ICFTU International Confederation of Free Trade Union
ILO International Labour Organisation
IMF International Monetary Fund
LAB Labour Advisory Board
LMCC Labour-Management Consultation and Cooperation
NOHSAB National Occupational Health and Safety Advisory Board
NZ New Zealand
OECD Organizational for Economic Co-operation and Development
PNG Papua New Guinea
PSSCES Parliamentary Sector Standing Committee on Economic Services
UK United Kingdom
UNDP United Nation Development Program
USA United States of America
WB World Bank
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LIST OF TABLES
TABLE 1.0 PIC LABOUR LEGISLATION.…………………………………………3
TABLE 2.0 FACE-TO-FACE INTERVIEW………………………………………..13
TABLE 2.1 SURVEY RESULT..…………………………………………………….16
TABLE 4.0 REGISTERED INDUSTRIAL ASSOCIATION/TRADE UNION.……41
TABLE 4.1 FIJI'S TOTAL WORKFORCE…………………………………………42
TABLE 4.2 TRADE DISPUTES REPORTED……………………………………...57
TABLE 4.3 INDUSTRIAL UNREST………………………………………………..61
TABLE 5.0 ERP FORMULATION STAGES.………………………………………68
TABLE 5.1 EFFECTIVE PROMULGATION DATES.…………………………….77
TABLE 6.0 APPLICATION PROVISIONS…………………………………………82
TABLE 6.1 ILO FUNDAMENTAL RIGHTS AND PRINCIPLES AT WORK……83
TABLE 6.2 LABOUR ADVISORY BOARD vs. EMPLOYMENT RELATIONS ADVISORY BOARD…………………………………………………….89
TABLE 6.3 COMPARATIVE ANALYSIS OF MANPOWER AND EXECUTIVE FUNCTIONS……………………………………………90
TABLE 6.4 EEO PRINCIPLES……………………………………………………...93
TABLE 6.5(a) LEGISLATED “CONTRACT OF SERVICE”....………………………96
TABLE 6.5(b) LEGISLATED WRITTEN “CONTRACT OF SERVICE”……………97
TABLE 6.6(a) PROTECTION OF WAGES – GENERAL…………………………….99
TABLE 6.6.1 REQUIREMENTS FOR WAGE STATEMENTS……………………100
TABLE 6.6(b) PROTECTION OF WAGES – WAGES COUNCILS.………………..101
TABLE 6.7(a) HOLIDAYS AND LEAVE – ANNUAL.………………………………102
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TABLE 6.7(b) HOLIDAYS AND LEAVE – PUBLIC………………………………...103
TABLE 6.8 MATERNITY LEAVE…………………………………………………105
TABLE 6.9 HOURS OF WORK……………………………………………………106
TABLE 6.10 EMPLOYMENT OF CHILDREN…………………………………….107
TABLE 6.11 REDUNDANCY POLICIES…………………………………………..108
TABLE 6.12 INDIVIDUAL EMPLOYMENT GRIEVANCE………………………110
TABLE 6.13 TRADE UNION REGISTRATION…………………………………...112
TABLE 6.14 RIGHTS AND LIABILITIES OF TRADE UNION………………….114
TABLE 6.15 COLLECTIVE BARGAINING.……………………………………….115
TABLE 6.16 COLLECTIVE DISPUTES.…………………………………………...118
TABLE 6.17 INDUSTRIAL ACTION – STRIKES AND LOCKOUTS.……………121
TABLE 6.18 ESSENTIAL SERVICES.……………………………………………..123
TABLE 6.19 DISPUTE RESOLUTION INSTITUTIONS.…………………………125
TABLE 6.20 CONTRADICTIONS AND OFFENCES.…………………………….127
TABLE 6.21 MISCELLANEOUS.…………………………………………………...128
TABLE 7.0 CRITICAL EVALUATION OF LABOUR LEGISLATION.…………131
TABLE 7.1 HOLIDAYS AND LEAVES (UNPRODUCTIVE DAYS).……………149
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LIST OF FIGURES
FIGURE 3.0 COMPARATIVE LEGISLATIVE PROCESSES IN UK, NZ AND FIJI………………………………………………………………..26
FIGURE 4.0 DISPUTE MECHANISM UNDER THE ‘INDUSTRIAL DISPUTES (CONCILIATION AND ARBITRATION) ORDINANCE’, 1941………………………………………………………………………49
FIGURE 4.1 TRADE DISPUTE RESOLUTION MACHINERY UNDER THE TRADE DISPUTE ACT CAP. 7..………………………………………53
FIGURE 5.0 FIJI’S LEGISLATIVE PROCESS..……………………………………68
FIGURE 6.0 GRIEVANCE & DISPUTE SETTLEMENT MECHANISM UNDER ‘ERP’.………………………………………………………...119
LIST OF CHART
CHART 5.0: RESPONSES FROM PUBLIC THROUGH PSSCES…………………..75
LIST OF APPENDICES
1. Appendix ‘1’ - Research Questionnaire
2. Appendix ‘2’ - ‘Employment Relations Promulgation 2007’ (Promulgation No.
36 of 2007)
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TABLE OF CONTENTS
DECLARATION OF ORIGINALITY.................................................................... iDEDICATION ....................................................................................................... iiABSTRACT ........................................................................................................... iiiACKNOWLEDGEMENT .......................................................................................vACRONYMS.......................................................................................................... viLIST OF TABLES ............................................................................................... viiLIST OF FIGURES.............................................................................................. ixLIST OF CHART.................................................................................................. ixLIST OF APPENDICES ...................................................................................... ixTABLE OF CONTENTS....................................................................................... x
CHAPTER 1........................................................................................................... 11.0 INTRODUCTION.................................................................................................. 11.1 DEFINITIONS OF INDUSTRIAL RELATIONS ............................................... 11.2 ACTORS OF INDUSTRIAL RELATIONS.......................................................... 21.3 LABOUR LEGISLATION FORMULATING INSTITUTIONS ......................... 21.4 INDUSTRIAL RELATIONS PACIFIC ISLAND COUNTRIES: Fiji, Kiribati,
Papua New Guinea, Samoa, Solomon Island, Tonga and Tuvalu. ..................... 21.5 HISTORICAL DEVELOPMENT OF LABOUR LEGISLATION IN FIJI ....... 51.6 THE ‘EMPLOYMENT RELATIONS PROMULGATION 2007’ ....................... 81.7 THE SIGNIFICANCE AND USEFULNESS OF THE STUDY ........................ 91.8 ORGANISATION OF THE THESIS. .................................................................. 91.9 MAIN AIM AND OBJECTIVES ON THE THESIS. .......................................... 91.10 RESEARCH QUESTIONS ................................................................................. 101.11 CONCLUSION..................................................................................................... 10
CHAPTER 2......................................................................................................... 11RESEARCH METHODS .................................................................................... 11
2.0 INTRODUCTION................................................................................................ 112.1 RESEARCH METHODS USED FOR THE STUDY ........................................ 112.2 DATA COLLECTION PROCESS....................................................................... 17
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2.3 RESEARCH LIMITATIONS.............................................................................. 172.4 CONCLUSION..................................................................................................... 18
CHAPTER 3......................................................................................................... 19THESIS THEORETICAL CONTEXT ............................................................... 19
3.0 INTRODUCTION................................................................................................ 193.1 INDUSTRIAL AND EMPLOYMENT RELATION THEORIES: LABOUR
LEGISLATION.................................................................................................... 193.2 LABOUR LEGISLATION: THEORETICAL APPROACH.............................. 233.3 LABOUR LEGISLATION: HISTORICAL DEVELOPMENT......................... 253.4 LABOUR LEGISLATION FORMULATION: LEGISLATIVE PROCESS..... 253.5 FIJI’S DEPARTURE FROM LEGISLATIVE PROCESS ............................... 273.6 LABOUR POLICIES........................................................................................... 273.7 LABOUR POLICY SHIFTS: GENERAL TRENDS.......................................... 303.8 CONCLUSION..................................................................................................... 34
CHAPTER 4......................................................................................................... 35INDUSTRIAL AND EMPLOYMENT RELATIONS IN FIJI .......................... 35
4.0 INTRODUCTION................................................................................................ 354.1 COLONY OF FIJI’s LABOUR MARKET ......................................................... 354.2 COLONY’S OF FIJI’s LABOUR INSTITUTIONS .......................................... 364.3 FIJI’s FORERUNNER LABOUR POLICIES................................................... 434.4 DEVELOPMENT OF FIJI’s LABOUR LEGISLATION ................................. 454.5 JUDGE MADE LABOUR LAW: COMMON LAW ........................................... 544.6 SOCIAL PARTNERSHIP IN FIJI: THE TRIPARTITE FORUM .................. 564.7 1990’s CONTROVERSIAL LABOUR REFORM.............................................. 584.8 CONCLUSION..................................................................................................... 65
CHAPTER 5......................................................................................................... 66THE FORMATION OF THE NEW ‘ERP’: THE VARIOUS STAGES OF DEVELOPMENT AND CONCERNS ................................................................ 66
5.0 INTRODUCTION................................................................................................ 665.1 FORMULATION STAGES OF ‘ERP’: 1996 - 2008 ......................................... 66
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5.2 THE ROLE OF BAINIMARAMA’S REGIME IN THE FORMULATION OF THE ‘ERP’........................................................................................................... 74
5.3 GENERAL OBSERVATIONS AND CONCERNS ............................................ 765.5 CONCLUSION..................................................................................................... 77
CHAPTER 6......................................................................................................... 78COMPARATIVE ANALYSIS OF THE OLD AND NEW LEGISLATION ..... 78
6.0 INTRODUCTION................................................................................................ 786.1 APPLICATION PROVISIONS OF THE OLD LEGISLATION AND ‘ERP’ . 786.2 FUNDAMENTAL RIGHTS AND PRINCIPLES AT WORK ........................... 796.3 EMPLOYMENT RELATIONS ADVISORY BOARD (ERAB) ......................... 856.4 APPOINTMENTS, POWERS AND DUTIES OF PUBLIC OFFICERS AND
ADMINISTRATION OF ‘ERP’.......................................................................... 866.5 EQUAL EMPLOYMENT OPPORTUNITY (EEO) PRICIPLES IN THE
‘ERP’. ................................................................................................................... 896.6 ‘CONTRACTS FOR SERVICE’ AND ‘CONTRACT OF SERVICE’.............. 916.7 PROTECTION OF WAGES ............................................................................... 956.8 HOLIDAYS AND LEAVE................................................................................... 986.9 MATERNITY LEAVE ....................................................................................... 1006.10 HOURS OF WORK ........................................................................................... 1016.11 EMPLOYMENT OF CHILDREN .................................................................... 1026.12 REDUNDANCY FOR ECONOMIC, TECHNOLOGICAL AND
STRUCTURAL ADJUSTMENT POLICY ....................................................... 1046.13 EMPLOYMENT GRIEVANCES...................................................................... 1056.14 REGISTRATION OF TRADE UNIONS.......................................................... 1066.15 RIGHTS AND LIABILITIES OF TRADE UNIONS ...................................... 1096.16 COLLECTIVE BARGAINING ......................................................................... 1106.17 EMPLOYMENT DISPUTES ............................................................................ 1136.18 STRIKES AND LOCKOUTS ............................................................................ 1166.19 PROTECTION OF ESSENTIAL SERVICES, LIFE AND PROPERTY....... 1176.20 EMPLOYMENT GRIEVANCE AND DISPUTE INSTITUTIONS................ 1196.21 OFFENCES ....................................................................................................... 1216.22 MISCELLANEOUS........................................................................................... 1226.23 CONCLUSION.................................................................................................. 123
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CHAPTER 7....................................................................................................... 125RESEARCH RESULTS, ANALYSIS, CRITICAL EVALUATION AND IMPLICATIONS OF EMPLOYMENT RELATIONS PROMULGATION 2007 FOR FUTURE EMPLOYMENT RELATIONS: SOCIAL PARTNERS AND THEIR CONCERNS.......................................................................................... 125
7.0 INTRODUCTION.............................................................................................. 1257.1 BARGAINING ................................................................................................... 1277.2 EMPLOYMENT OF CHILDREN .................................................................... 1287.3 ‘CONTRACT FOR SERVICE’ ......................................................................... 1307.4 ‘CONTRACT OF SERVICE’............................................................................ 1307.5 EMPLOYMENT DISPUTE, SETTLEMENT MECHANISM AND
INSTITUTIONS................................................................................................. 1327.6 EQUAL EMPLOYMENT OPPORTUNITY..................................................... 1377.7 EMPLOYMENT RELATIONS ADVISORY BOARD (ERAB) ....................... 1407.8 FUNDAMENTAL RIGHTS AND PRINCIPLES AT WORK ......................... 1407.9 PRINCIPLE OF ‘GOOD FAITH’ .................................................................... 1417.10 EMPLOYMENT GRIEVANCES...................................................................... 1427.11 HOLIDAYS AND LEAVES............................................................................... 1437.12 HOURS OF WORK ........................................................................................... 1457.13 INDUSTRIAL ACTION .................................................................................... 1457.14 LABOUR MANAGEMENT CONSULTATION CORPORATION (LMCC).. 1477.15 POWERS AND DUTIES OF APPOINTED LEGISLATION ENFORCERS 1477.16 RECORGNITION OF TRADE UNION........................................................... 1487.17 REDUNDANCY................................................................................................. 1507.18 SECRET BALLOT............................................................................................. 1517.19 WAGES............................................................................................................... 1517.20 RESEARCH FINDINGS: A SUMMARY OF EACH PART OF THE ‘ERP’ 1527.21 SOCIAL PARTNERS VIEWS ON THE ‘ERP’ ............................................... 1597.22 CONCLUSION................................................................................................... 161
CHAPTER 8....................................................................................................... 162CONCLUSION................................................................................................... 162
8.0 INTRODUCTION.............................................................................................. 1628.1 ‘ERP’ THEORETICAL FRAMEWORK.......................................................... 162
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8.2 SUGGESTIONS IN RESPONSE TO ADMINISTRATIVE PROBLEMS ..... 1638.3 SUGGESTIONS IN RESPONSE TO THE GENERAL WEAKNESSES OF
THE ‘ERP’......................................................................................................... 1658.4 CONCLUSION................................................................................................... 171
9.0 BIBLIOGRAPHY............................................................................................... 1769.1 INTERVIEWS............................................................................................... 1769.2 LEGISLATION ............................................................................................ 1789.3 HANZARD REPORTS ................................................................................ 1809.4 PRIMARY / ARCHIVAL DOCUMENTS ................................................. 1819.5 SECONDARY SOURCES ........................................................................... 1849.6 WEB PAGES................................................................................................. 192
APPENDICES ............................................................................................................... 193
1
CHAPTER 1
1.0 INTRODUCTION
This Chapter will define the term ‘industrial relation’ and identify the actors. It would
also discuss the labour legislation formulation institutions and reflect on Fiji’s status in
the Pacific Island Countries industrial relations. The Chapter would also introduce Fiji’s
industrial relations historical background, the significance and usefulness of the study,
overview of the ‘Employment Relations Promulgation (ERP) 2007’ (‘ERP’) and the
Thesis organization. However, it would also examine the main aims and objectives of the
Thesis.
1.1 DEFINITIONS OF INDUSTRIAL RELATIONS
In its broadest sense, industrial relation is the behaviour and interaction of people at
work. According to Ramaswamy (2000), industrial relations has been variously defined
to focus on different aspects of the relationship between management, employees, or
their various representatives and the State, drawing on matters from economics, law,
sociology, psychology, organizational theory, to name a few. It has evolved to cover
various factors that affect people at work. Creighton and Stewart (1990) argued that
the industrial relation legal framework creates a system that deals with the basic social
relationships, between employers and employees; union and their members; unions
and employers and even amongst employers, unions and the State.
These definitions show that industrial relation is a wide field of study that evolved from
industrial revolution to this 21st century. Creighton et al., (1983) emphasized that
ultimately industrial relation is about people, and the work processes that they go through
(including the terms and condition) which affected them as individuals. This was
reflected in pre-industrial labour legislation that virtually underpinned by the notion of
‘contract of service’. Secondly, industrial relation is essentially collectivist in nature
given that the parties have recognized each other’s existence. As such, industrial relation
includes the study of the actors and understanding their relations within the environment
2
they exist as well as the way in which wider political, economic and social factors that
shape relationship (Green, 1994).
1.2 ACTORS OF INDUSTRIAL RELATIONS
The industrial relation principal actors include: individual worker, workers organizations,
individual employer, association of employers, and the State. Of the three main actors,
the role of the State is perhaps the most important because it creates the environment
within which the industrial relation systems function (Creighton et al., 1983). Most, if not
all, Governments of democratic and industrialized countries have established institutions,
with the legislative and judicial power to determine labour legislation. This legitimizes
the existence of the actors (parties) and regulates their relationships with the industrial
environment.
1.3 LABOUR LEGISLATION FORMULATING INSTITUTIONS
The State’s executive role consists of a department or ministry responsible for labour
matters. Government officials within the civil service run these institutions. They are
empowered to plan, organize, lead and control the organization on behalf of the State.
The head of the department or ministry has the overall responsibility for strategic,
hierarchical and operational roles.
The Minister responsible carries out the State’s legislative role in Parliament through the
introduction in the form of a Bill. In developed countries such as the United Kingdom
(UK) and New Zealand (NZ), both introduction of new legislation and variation of
existing ones are introduced through the Head of State’s opening parliamentary speech.
1.4 INDUSTRIAL RELATIONS PACIFIC ISLAND COUNTRIES: Fiji,
Kiribati, Papua New Guinea, Samoa, Solomon Island, Tonga and Tuvalu.
The eight Pacific Island Countries have many similarities regarding industrial relations.
All are currently experiencing development of their industrial relation system but at
different rates. However, Fiji’s industrial relation is the most developed.
3
Table 1.0 confirms that prior to the implementation of the ‘ERP’, Fiji has fourteen labour
legislation, whilst Papua New Guinea (PNG) has nine; Solomon Island and Vanuatu have
eight each; Kiribati has five labour, while Samoa and Tuvalu adopted three each (Chand,
2004; Jowitt, 2004). As such, the Pacific Island Countries are still developing their labour
legislation but at different pace (Prasad et al., 2003).
An attempt, in 1992, to amend the labour legislation in Samoa, through the introduction
of an ‘Industrial Relations Bill’ failed. Part of the features of the Bill were to establish the
missing dispute handling mechanism and do away with the NZ model of dual industrial
relation systems (Chand, 2004). The dual system demarcated the private sector from the
public sector. In other words, a different set of labour legislation covers the public sector
whereas different sets cover the private sector.
TABLE 1.0: PACIFIC ISLAND COUNTRIES LABOUR LEGISLATION
LABOR LEGISLATION FIJI PNG SOLOMON VANUATU SAMOA KIRIBATI TONGA TUVALU1 Daylight Saving Act � 2 Employment Act/Ordinance � � � � � � �3 Employment of Non Citizen Act � 4 Health & Safety At Work Act/ OHS Act � � � � 5 Industrial Association/Organization Act � � � �6 Industrial Safety Health & Welfare Act � 7 Industrial Relation Code/ Act � � � �8 Labor / Permit Act � � 9 National Provident Fund/Superannuation Act � � �
10 Public Holiday Act � 11 Public Service Act � � � � �12 Sugar Industry Act � 13 Trade Disputes Act � � � 14 Trade Union Act � � � � �15 Trade Union (Recognition) Act � 16 Unfair Dismissal Act � 17 Wages Council/Minimum Wage Act � � 18 Workmen Compensation Act/Ordinance � � � � � �
TOTAL 14 9 8 8 3 5 2 3 Source: Created by the Author with data provided by Chand, (2004); Imbun, (2006) No.
2006/19 (ELMS-6) & No. 2006/20 (ELMS-7); Jowitt, (2004); Mellor, (2004); Prasad et al., (2003); Toatu, (2004).
4
The Tongan ‘Trade Unions Act’ of 1964 was introduced during the protectorate phase of
the Kingdom. However, the trade unions were registered under the ‘Incorporated
Societies Act’ together with industrial associations (Prasad et al., 2003). The Kingdom is
the only country in the Pacific that do not legislate industrial relations (Chand, 2004). An
attempt to enact labour legislation failed due to the varying political interests (Prasad et
al., 2003).
However, Jowitt (2004) recommended the amendments to Vanuatu’s labour legislation
after it became a member of the International Labor Organization (ILO) in 2003 (ILO,
2007). Tuvalu is not an ILO member but since independence (1978), the labour market is
still governed by the employment, workers compensation and immigration legislation
while the ‘Industrial Relations Code 1978’ provides for procedures of settlement of
labour disputes (Mellor, 2004).
The ILO was created in 1919 with the belief that universal and lasting peace can be
accomplished based on social justice. Countries who wish to be members must conform
to the constitution before applying. Their tripartite delegates would represent these
member states in its meeting ones a year. They would report on ratified Conventions and
the status of industrial relations by the tripartite parties, adopt new Conventions, make
recommendations and pass resolutions. However, ILO may also monitor Convention
adherence and may decide against contraventions, if reported, which includes thorough
investigation, given ultimatum or face suspension.
All Pacific Island Countries developed as political democracies with the Westminster
model as the core of the governance system. Table 1.0 shows that the country that has the
most labour legislation is the oldest ILO member states - Fiji (1974), PNG (1976),
Solomon Island (1984), Kiribati (2000) and Vanuatu (2003) while Samoa, Tonga and
Tuvalu are non-members. However, only Fiji and PNG have ratified the eight core and
fundamental conventions.
5
1.5 HISTORICAL DEVELOPMENT OF LABOUR LEGISLATION IN FIJI
Fiji’s’ industrial relation system was established and influenced, to a large extent, by
colonial during the 1870’s. The Cakobau Government was legitimized in 1871, but was
subject to colonial rule from October 10th 1874. Fiji’s first labour legislation was
introduced just four days after cession (Colony of Fiji, 1875; Bain, 1988; Hince, 1981).
The first labour legislation was the 1875 ‘Fijian Labour Ordinance’ that regulated and
controlled the ‘hiring’ of Native labourers and the indentured laborers four years later
(Colony of Fiji, 1875; Bain, 1988). At this time the labourers were subject to the colonial
British authority. Resentment towards colonial practices intensified with economic
development in Fiji. Ultimately resulted in formation of trade unions linked to collective
industrial interests. The emergence of collective interest prompted individuals such as
Edward Sandy to contact the ‘Australian Worker’s Union’, with the intention to form the
‘Fiji Wharf Labourers Union’ in 1916 (Hince, 1985). Sandy was concerned with the
social conditions of the Native labour.
In 1874, the Department of Native Affairs was established, headed by the Protector of
Polynesian Laborers and later the Secretary of Native Affairs and Protector of
Polynesians Laborers (Colony of Fiji, 1875). This was the first labor market institution in
Fiji. In 1939 the Colonial administration took steps to separate Native and labor policies
with the establishment of a Labor Department (Slatter, 1993). This led to the appointment
of Colonial officer, Mr. Stuart Reay as the first Industrial Relations Officer in 1940. He
later became the first Commissioner for Labour until his retirement in 1953.
In 1937, collective bargaining was established in Fiji, when the first sugar industry
workers union, namely the ‘Kisan Sang’ was registered and met the employer for the first
time (Narayan, 1984; Hince, 1991). However, other sector workers, while remaining
unorganized, went on strike to secure better employment terms and conditions. In 1941,
the Government recognized the growth of unionism. As the result, enacted the ‘Industrial
Association Ordinance’ that allowed registration of industrial associations for the first
time. The introduction of the ‘Industrial Disputes (Conciliation and Arbitration)
Ordinance 1941’ also formalized, for the first time, a mechanism for the settlement of
6
industrial disputes. It covered sugar cane farmers and sugar millers, as well as union and
employers, only.
Unions, within a short period of time represented almost all industries in the private and
public sectors, particularly the unskilled workforce. By 1952, collective bargaining was
firmly established to the extent the ‘1941 Industrial Disputes (Conciliation and
Arbitration) Ordinance’ was changed. Consequently, essential services were introduced
and protected by the ‘Essential Services (Arbitration) Ordinance 1954’ and the ‘Industrial
Disputes (Arbitration and Inquiry) Ordinance 1958’ that revoked the ‘1941 Industrial
Disputes Ordinance’. In 1964, the ‘Trade Disputes (Arbitration, Inquiry and Settlement)
Ordinance’ consolidated and revoked the provisions of the ‘Essential Services
(Arbitration) Ordinance 1954’, and the ‘Industrial Disputes (Arbitration Inquiry)
Ordinance 1958’. It made no provision for compulsory arbitration.
The union movement was solidified through the establishment of the first national trade
union body, the ‘Fiji Industrial Worker Congress’ (FIWC) in 1951 and renamed ‘Fiji
Trade Union Congress’ (FTUC) in 1960 (Hince, 1991). In response to the formation of
national trade union body, the first employer’s association body, the ‘Fiji Employers
Consultative Organization’ (FECA) was established in 1960 that was renamed ‘Fiji
Employers Federation’ (FEF) in 1991 (Hince, 1991; Bilash, 2003).
After Fiji’s independence, the Government was forced to introduce measures to curb
strikes and reintroduce compulsory arbitration. As the result, the ‘Trade Union Act
Chapter 96’1973 and ‘Trade Disputes Act Chapter 97’ 1973 were enacted. These
empowered the Minister for Labour to ban strikes and invoke compulsory arbitration. In
1976, the ‘Trade Unions (Recognition) Act’ was enacted to provide for compulsory
recognition of trade union. It also introduced the ‘check-off’ system imposing
compulsory deduction of union dues by employers from union members’ earnings.
The Tripartite Forum was established during this time as a means to solve industrial
disputes (Prasad et al., 2001). However, it collapsed in 1984 after the Government
7
imposed a wage freeze when FTUC withdrew to form the Fiji Labor Party (Prasad et al.,
2001).
The Fiji Labour Party was elected to parliament in 1987 but its tenure was short lived,
being overthrown in a Military coup the same year. An interim regime was appointed to
take the country to Parliamentary democracy. In 1991, the interim Government’s
economic policies were designed to create higher economic growth, more jobs and higher
living standards (Khan, 1997). The policies meant less government control of the
economy and recognized the need for market openness. The 1991/1992 Labor Reform
was a vital part of the new policies that included:
� The re-enforcement of free collective bargaining from August 1st 1991, which
was frustrated in 1984.
� A new informal mediation and separation of ‘disputes of rights’ and ‘disputes
of interest’ to settle industrial disputes quickly.
� Changes to some labour legislation that involved the Government’s
“interventionist” role by introducing policies to curb union activities, as
discussed in Chapter 4.
However, Section 95(1) of Fiji’s ‘1997 (Amendment) Constitution’ repealed the
controversial provisions of the reform, except for Decree No. 42/1992 – the demarcation
of ‘disputes of interest’ and ‘disputes of rights’. The ‘12 months’ time limitation within
which the Permanent Secretary to accept trade disputes were determined under Common
Law, through judicial review.
The ‘ERP’ intend to address the loopholes of the previous labour legislation in Fiji.
8
1.6 THE ‘EMPLOYMENT RELATIONS PROMULGATION 2007’
1.6.1 Background
The review of the entire labour legislation was first initiated in the mid 1990’s. A NZ
Consultant, Mr. Stan Williams, drafted the Industrial Relations Bill in 1996. Since 1997,
the draft was widely circulated and discussed by the Labour Advisory Board (LAB) with
the three major actors of industrial and employment relations. In 2004, the Bill was
renamed the ‘Employment Relations Bill’. It was introduced to Parliament on September
19th 2005, for its first reading. In 2006, it was passed by Fiji Parliament and was awaiting
debate in the Upper House (Senate) when the 5th December coup took place. In October
2007, the interim regime of Bainimarama promulgated the Bill as the ‘ERP’.
The ‘ERP’ consolidated six old labour legislation by repealing and replacing the
‘Employment Act Cap 92’ Chapter 92; ‘Trade Union Act’ Chapter 96; ‘Trade Dispute
Act’ Chapter 97; ‘Wages Councils Act’ Chapter 98; ‘Trade Union (Recognition) Act’
Chapter 96A and ‘Public Holidays Act’ Cap 101. The main reason being that the labour
legislation models on which these were based were obsolete and had not kept pace with
the developments in Fiji’s labour market and industrial and employment relations
environment. It also seeks to uphold the provisions of Fiji’s ‘1997 (Amendment)
Constitution’, in particular Chapter 4 – Bill of Rights and eight ratified ILO Conventions.
It is consistent with the Common Law - various Court decisions and Arbitration Tribunal
Awards.
1.6.2 Scope of Industrial and Employment Relation Coverage
The ‘ERP’ covers all employers and workers including the public and private sectors;
formal and informal sectors; unorganized and organized sectors. This includes the
Government, the sugar industry, and domestic workers except for members of the
Military Forces, Police Force, and Prison Service. A new feature of the ‘ERP’ is the
inclusion of the sugar industry, under the ‘Sugar Industry Act 1984’, as well as domestic
and individual workers who were not covered in the old legislation.
9
1.7 THE SIGNIFICANCE AND USEFULNESS OF THE STUDY
This study will provide accounts of the events that transpired during the development of
‘ERP’. For this purpose, the Thesis will refer to the colonial era as, where we started; old
as, where we were and the ‘ERP’ (where we are). This study will also highlight major
policy changes and the introduction of the so-called ‘controversial provisions’.
The research outcome is likely to be a valuable resource to Government, employers and
their associations, trade unions and national bodies, solicitors, civil society organizations
as well as other industrial and employment relation operators. In the academic sense, this
study will contribute to the industrial and employment relations’ discipline, human
resources and personnel management, labour economics and industrial law. It also
provides a basis for advancing management in areas that are interested in these fields of
study.
1.8 ORGANISATION OF THE THESIS.
This thesis consists of eight Chapters. Chapter 1 is the introduction; Chapter 2 highlights
the research methods used; Chapter 3 examines the theoretical approaches and literature;
Chapter 4 examines the historical development of the labour legislation in Fiji; Chapter 5
dwells on the formulation of the ‘ERP’; Chapter 6 reflects on labour policy through
comparative analysis of the old legislation and shifts in the ‘ERP’; Chapter 7 outlines the
research results, implications of the ‘ERP’ for the future labour market, social actors and
their concerns; and Chapter 8 details the lessons learnt from the research, suggestions and
conclusion.
1.9 MAIN AIM AND OBJECTIVES ON THE THESIS.
The main aim of this study is to critically evaluate how the ‘ERP’ will operate and
implications for Fiji’s industrial relations environment.
10
1.9.1 Specific Objectives:
The specific objectives of the study were derived from the research aim and includes:
1) To examine the development process of Fiji’s labour legislation leading up to the
‘ERP’.
2) To examine the role of the social partners and the processes involved in the
development of the ‘ERP’. It will also examine the social partners’ major
concerns regarding the ‘ERP’.
1.10 RESEARCH QUESTIONS
Any academic research process would begin with one or more research questions, which
can then refined such that data can be, collated that address the research topic. Questions
that the researcher wishes to answer in this study are:
1. What were some of Fiji’s labour legislation, prior to ‘ERP’, and how were they
developed?
2. What processes were used to formulate the ‘ERP’ and what changes did it bring?
3. Who were the social partners in this development? What was the extent of their
involvement?
4. Were the interests and concerns of the social partners addressed?
5. What (if any) are the controversial issues facing Fiji’s industrial and employment
relation’s environment in the future? What impact are these issues likely to have?
1.11 CONCLUSION
This Chapter has defined ‘industrial relations’ and identified its actors, and the general
institutions that are responsible for labour matters. It has identified Fiji’s status amongst
the Pacific Island Countries and provides Fiji’s industrial relations historical background,
including the ‘ERP’. It also describes the organization, main aims and the objectives of
the Thesis.
The next Chapter will examine the research methods used in the study.
11
CHAPTER 2
RESEARCH METHODS
2.0 INTRODUCTION
This Chapter examines the research methods used in the study. It will also define some of
the key terms and look at the problems that the researcher encountered during the
research.
Research is a human activity based on intellectual investigation aimed at discovering,
interpreting, and revising human knowledge on different discipline, aspects or
approaches. In the context of commercial and public policies, research is intelligence. It
is about information gathering, the outcome (finding) of which is often used in decision
making process to identify the best strategy. For the purpose of this thesis, the research
process adopted follows that of Walsh (2005), which describes the process of creative
and systematic investigation into three key features; formulation of research questions,
rationale for their selection, and use of appropriate methodologies, which ultimately
should contribute to human knowledge and specifically in the field of industrial relation.
The prime purpose of the Thesis, according to Walsh (2005) is for the researcher to
develop skills and able to: analyze, interpret and synthesize ideas and data, present
findings coherently and clearly, recognize quality and standards, appreciate the
significance of this contribution, re-tool and develop new skills and demonstrate that the
researcher is capable of undertaking autonomous independent research.
2.1 RESEARCH METHODS USED FOR THE STUDY
In determining the appropriate approach for this study, the researcher opted for a
qualitative research method. Provisions were also made for quantitative analysis,
particularly in quantifying the percentage response in the processes utilized during
formulation and calculating variables to clarify arguments.
12
Methods of research used were developed with consideration of the background of the
widely structural adjustment programmes, such as public sector reform, and the impact
on labour legislation. The question that aught to be asked is, in such development is there
a need for a labour reform or what triggered labour reform? The reform is a global
experience that might dictate actor’s behaviour towards these developments demanded by
the factors of development (McNeill and Chapman, 2005).
The researcher has used the following research methods, in this Thesis:
2.1.1 Author’s Autobiography
As former Labour Officer, I worked within the Ministry of Labour since 1989. During
my career within the Ministry, I worked in: Labour Standard Services - Central/Eastern
and Western districts and Divisional Offices; Workmen’s Compensation; Industrial
Relations; Policy, Training & Development; Secretary to the Arbitration Tribunal; and
Personnel Office. The roles involved the enforcement and administration of labour
legislation as a Labour Inspector in 1989 and rose through the ranks to Divisional Labour
Officer. In 2002 I resigned to join Pacific Fishing Company, a state owned enterprise, as
Corporate Services Manager responsible for Human Resources, Training and
Development, OHS, Public Relations, Payroll, Stores, Security, Laundromat, Daycare
Center and Medical. In 2004 I joined the largest trade union in Fiji, as Industrial
Relations Manager, later joined as Researcher at the University of the South Pacific under
the European Union (EU) funded Employment and Labour Market Studies Programme.
It was while in the EU funded Employment and Labour Market Studies Programme
(2005 – 2006), that I was tasked to prepare a submission to the Parliamentary Sector
Standing Committee on Economic Services (PSSCES). The University of the South
Pacific team appeared before the PSSCES on July 17th 2006 to address the Employment
Relations Bill No. 8/2006.
13
These autobiographical notes highlight industrial exposure, experience and knowledge
that ensured relevant assessment and validation of the views expressed during the
research.
2.1.2 ‘Face-to-face’ Interviews with social partners
During field visits, the researcher interviewed the respondents seeking their input
regarding the then proposed Employment Relations Bill1. The importance of interview is
described by Mann (1976) to allow people to meet face-to-face in the form of formal
conference or informal chat as part of human interaction. A structured questionnaire was
prepared for the purpose of ‘face-to-face’ interviews. (See also 2.1.6; Appendix ‘A’ for
the questionnaire). The respondents were employers, trade union officials, individuals
and Ministry of Labour’s enforcement officers. Not all the answers were provided during
the ‘face-to-face’ interviews. In some cases, the researcher was asked to follow up via e-
mail or telephone. Table 2.0 shows the number of respondents that were interviewed
through this mode.
TABLE 2.0: ‘FACE-TO-FACE’ INTERVIEWS
S/NOS. SOCIAL PARTNERS NUMBERS 1 Trade Unions Officials 4 2 National Trade Union body Officials 2 3 Workers 20 4 Employers 17 5 National Employers body 2 6 Ministry of Labor & Gov’t Officials 4 7 Members of Parliament 1 8 Women’s Organization 2 9 Other CSO 2
10 TOTAL 52
The selection of these social partners’ was based on the following;
1 It is noted that during the initial stage of the research, the promulgated ‘ERP’ was in the form of ‘Employment Relations Bill’.
14
2.1.2.1 Workers, Trade Union and National Trade Union Officials
The researcher wanted to gauge the view of the workers, as individuals, during the
formulation of the ‘Industrial Relations Bill’. Twenty workers from different parts of the
country were interviewed. They were considered representative of individual workers in
the entire workforce, since the change would directly affect them as well. Workers are
very important party or social partner in industrial relations, each has the right to join a
trade union, of their-own free will, under the principle of freedom of association.
If workers decided to join a trade union, then the workers collective representative is also
an important social partner. Four of the 71 registered trade unions in Fiji (Pulu, 2007)
were interviewed as representative of the workers collective voice. These are industrial
relation actors at enterprise or micro-level. However, trade union also has the right to
affiliation under the abovementioned principle. This affiliation is important due to the
fact that individual trade unions’ may be represented at meso and macro-level at various
forums. Officials of the two national union bodies, FTUC and Fiji Island Council of
Trade Union (FICTU), were also interviewed.
2.1.2.2 Employers and Employers Association Officials
Employers are also an important party in industrial relations having direct relationships
with the workers and trade unions at micro-level. Similar to individual workers,
employers have the right to affiliation through professional bodies and for the same
reason as their counterparts, the trade union, are affiliated to employer association bodies.
FEF has 525 members (Fiji TV, Saturday, September 15th 2007). Therefore, FEF is the
only employer’s association body that deals with labour matters whose officials view is
important in this Thesis. However, not all the 19 employer’s representatives interviewed
were affiliated to FEF, whereas only two were executives.
2.1.2.3 Ministry of Labour and Other Government Officials
Three officials from the Ministry of Labour were interviewed, as representatives of the
State. As the legislative arm of the State, the Ministry is responsible for labour matters.
This includes the enforcement and monitoring of the labour legislation. It is the
15
institution responsible with the initiation of the review of labour legislation. The
interviewees in this instance were those directly involved in the review and formulation
process as well as a representative from National Planning Office – that deals with labour
policies.
2.1.2.4 Members of Parliament
The only legitimate way of making or reviewing legislation is through an elected
Government. By virtue of being elected to Parliament, that Government is mandated to
make laws. A member of Parliament during the elected Soqosoqo ni Duavata ni Lewe ni
Vanua Party was interviewed. The Soqosoqo ni Duavata ni Lewe ni Vanua Party was
instrumental in the finalization of the ‘ERP’ during whose term the ‘Employment
Relations Bill’ was introduced and debated in Parliament (Parliament of Fiji, 2005;
Parliament of Fiji, 2006)
2.1.2.5 Civil Society Organizations and Other Social Partners
The two women’s organization – Fiji Women’s Right Movement and Pacific Foundation
for Advancement of Women officials were interviewed as a representative of females. A
University of the South Pacific academic as well as officials of the Human Rights
Commission was also interviewed. These interviews reflect the introduction of new
provisions, particularly the principles of Equal Employment Opportunity (EEO) and the
eradication of all forms of discrimination, which were vital in the formulation of the
‘ERP’.
2.1.3 Focus Group Meetings
The researcher also conducted focus group meetings with various District Labour
Officials, trade union officials, workers (including union and non-union members),
during the field visits. The meetings were conducted in groups of 4 to 7 members where
specific research questions were discussed in separate sessions. The group’s views were
carefully observed and captured (Sarantakos, 1993). However, it set the parameters for
further interviews, when the need arose.
16
2.1.4 Written Reflections
The researcher also contacted individuals through e-mail for 3 reasons; (1) send
questionnaires, (2) follow up, an individual that the researcher could not meet in person
for ‘face-to-face’ interview.
2.1.5 Telephone Interviews and Follow Up
This mode of interview was conducted for 2 reasons; (1) respondents that were either not
accessible by e-mail or not available during the field visits, and (2) to follow up and seek
clarifications on the collated data from respondents.
2.1.6 Survey using Structured Questionnaire
The structured questionnaire used during ‘face-to-face’ interview was also used in the
survey. Both ‘open ended’ and ‘closed ended’ questions were used to collect data. The
survey questionnaire was delivered to selected organizations and individuals to ensure
coverage of as many stakeholders as possible. All industrial relations stakeholders were
targeted. Refer to Appendix “A” for a copy of the questionnaire.
TABLE 2.1: SURVEY RESULT
STAKEHOLDERS NUMBERS DISTIBUTED
ACTUAL RESPONSES
Trade Unions Officials 35 7
Employers 45 11
35 questionnaires were distributed to trade unions with only 7 responses received; 45
were distributed to employers with 11 responses received.
2.1.7 Review of Primary Data
Archival research for primary data was conducted at the University of the South Pacific
library; Fiji’s National Archive library; Fiji’s Ministry of Labour; Fiji Bureau of Statistics
(FBoS); Fiji’s Parliament Office; and Fiji’s National Planning Office.
17
2.1.7.1 Review of Hanzard Reports
As part of collating primary data, copies of Hanzard Reports were sought from
Parliament. The exercise targeted reports relating to the introduction of the ‘Employment
Relations Bill No. 16/2005’ and ‘Employment Relations Bill No. 8/2006’ respectively, as
well as parliamentary debates on these Bills. They were obtained through the
Parliamentary Secretary’s Office and also retrieved from Fiji’s Parliament web site.
2.1.8 Review of Secondary Report
Secondary data were sourced from published reports, journal articles, books obtained
from University of the South Pacific library, National Archive library and Internet. Also
part of secondary data were daily newspaper including the Fiji Times, Fiji Sun, Daily
Post, Fiji Television and their respective web sites. Fiji Government online was also used
as a source.
2.2 DATA COLLECTION PROCESS
2.2.1 Population
The study population includes all industrial relation stakeholders – State, employers and
employees.
2.2.2 Data Analysis Technique
Qualitative method was used to analyze the data.
2.3 RESEARCH LIMITATIONS
The constraints on this research were a culmination of administrative and technical
problems. However, this discussion will focus on the technical problems.
1. A limitation faced during the field visits in 2006 that majority (over 90%) of the
industrial relations stakeholders had neither saw the proposed legislation nor had
any ‘Employment Relations Bill’ knowledge.
18
2. The limitation of using the self-administered questionnaire as a research method
includes low response rate received from the participants.
2.4 CONCLUSION
Research is the process of gathering information for discovery, interpretation and revision
of human knowledge. Research methodology influences the research design and choices
of research methods used in any specific study area or research. Research design is the
rationale used to decide the research plan or parameters, methods of data collection, data
processing, and research methods to be employed in any specific study.
Although qualitative methods were used in this Thesis, quantitative methods were also
considered. The later was used to calculate percentage of respondents during data
analysis. The researcher’s background also plays an important part in the research
methods. The biography seeks to inform the reader of the researchers personal experience
(Lindberg et al., 2002) since this will impact on the analysis.
This Chapter have identified and examined the research methods used to collect the data,
defined some key terms relevant to the study and look at the research limitations. The 8
research methods discussed in 2.1 shows the commitment of the researcher in obtaining
primary data as wide as possible from all industrial relations stakeholders to ensure
collating and retrieval of balance data. However, there are limitations of research as
discussed earlier.
The next chapter will review some theoretical framework and identify the literature
relevant to this study.
19
CHAPTER 3
THESIS THEORETICAL CONTEXT
3.0 INTRODUCTION
This Chapter will review the theoretical framework of this study and provide a review of
the literature. This requires a critically evaluation of the literature with the aim of
underpinning and justifying the research questions. It involves identification and
evaluation of both the quality of the arguments and the evidence underlying the current
understanding (Finn, 2005).
A literature review is an examination of written works considered relevant to the research
topic. It involves a systematic search to establish what others have written on a topic, the
research method(s) used, identifying research problems, and developing a relationship to
previous work (McNeill and Chapman, 2005).
3.1 INDUSTRIAL AND EMPLOYMENT RELATION THEORIES: LABOUR
LEGISLATION
The status of labour legislation is the product of, and a component of the conditions for,
struggles between divergent interests in society. Creighton et al., (1983) and Lewis
(1983), ague that the principal purpose of labour legislation is to regulate, support, and
restrain the power of the employer and trade unions. However, the ideology of labour
legislation is derived from industrial relation theories.
There are four main theories of industrial relations. They are the unitary, pluralist,
radical and the strategic choice theories.
20
3.1.1 The Unitary Approach
Unitarists view workplaces as an integrated and harmonious entity where both
management and workers, strive to achieve a common objective (Deery et al., 2001).
Employers are expected to provide strong leadership and integrate the goals of individual
workers with those of the organizations. The employee’s loyalty should be to the
organization as they are both part of the same team. A trade union is seen as an intruder.
The existence of disagreement is usually attributed to poor communication, inefficient
management or disruptive and politically motivated workers.
The theory is further explained by the three viewpoints. The scientific management
school view management’s role as to ascertain the ‘one best way’ of performing each
task. ‘Division of labour’ was the result of a study of the work performed and setting of
rules that each worker has to follow (Deery et al., 2001). The human relations school
believed in the psychological influence. That worker in the form of social work groups is
treated as human beings - who have feelings, emotions and a sense of belonging (Deery
et al., 2001). It argues that satisfied workers have higher performance and are industrially
cooperative. Similarly, the neo-human relations school takes the view that the key to
workplace behaviour is satisfying individual egoistic needs (Deery et al., 2001).
3.1.2 The Pluralist Approach
The pluralist approach viewed industrial conflict as inevitable, where there are dual and
conflicting sources of loyalty. Power is seen as shared amongst the actors of industrial
relations with no party dominant. It accepts workers collective interest will inevitably
differ from that of employers. This view does not deny that there may be a common long-
term objective but asserts the differing interest of the opposing parties is the strongest
influence (Creighton et al., 1983). While the employers are primarily concerned with
profit and investment, the workers are concerned with their welfare. The State is regarded
as a third party that has a role as the impartial guardian of the public interest protecting
the weak and restraining the powerful through legislation.
21
The theory is further explained by four theoretical viewpoints. The Systems approach
develops an organizing framework that began by analyzing the environment, the
characteristics of the actors and their relationships and the rules that govern the
employment relationships. The Corporatist approach relates to the active role of the
State in regulating the economy through power sharing and incorporating the industrial
relations stakeholders in decision-making. Each party has some element of control but
rather also allows the State some control over the behaviour of the other parties (Balnave
et al., 2007). The Neo-institutionalist approach focused on the rule regulating the
employment relationship and the social process, which creates and enforce (Bray et al.,
2006). The four types of rules are:
i. ‘Formal’ that refers to written rules the outcome of deliberate social process;
ii. ‘Informal’ that refers to unwritten rules and accepted social practices at work;
iii. ‘Substantive’ that refers to real terms and condition of work is performed as
agreed by the parties; and
iv. ‘Procedural’ that refers to the processes by which substantive rules are made and
enforced.
The Liberal collectivists approach assumes plurality of interests that traditionally
advocate a limited role of the State under the provisions of the labour legislation. It views
freely negotiated agreements as the best method of resolving disputes between the
conflict parties (Gospel and Palmer, 2002). Individual employees are always weak when
bargaining with their respective employers. The theory therefore legitimizes the workers
right to form collective organizations to boost their bargaining power when negotiating
contracts.
3.1.3 The Radical/Conflict or Maxist Approach
The Radical approach recognizes the fundamental and inherent conflict of interest
between the employers and workers by the pluralism advocates. Marxism asserted that
fundamentally, capitalism is the exploitation of the property-less classes by the propertied
(Deery et al., 2001). The notion of a balance of power is an illusion legitimizing a system
22
of gross inequality. No institutional arrangement may alter the fundamental imbalance of
control except by revolutionary of the collective powerless. The approach argued that the
existence of collective bargaining only provides a mechanism to resolve marginal
differences without addressing the source of the problem. It suggested that the frame of
reference adopted would inevitably influence the way in which labour relations were
regulated. It is also described a shift away from an extreme version of the unitary
approach, which denied any role for unions, towards a pluralist analysis. It noted that
major developments in labour legislation only occurred at times of economic and social
conflict. The nature and the extent of legal the framework is determined not by some
abstract rule-making force, but by the interplay of judicial motivations, public policy
controversy, relative power of management and labour interests, and party politics with a
view to electoral advantage.
3.1.4 The Strategic Choice Theory
The Strategic choice theory focuses on explaining the elements of change that unfold
with the management role, i.e. to make strategic decisions at strategic levels. Strategy as a
concept may be referred to concrete actions or rules for choosing actions in a conflict
situation. It is viewed as an ongoing process in which uncertainty plays a crucial role that
involves, shaping, designing, comparing and choosing actions in conflict situations. It
also holds the view that industrial and employment relation practices and outcomes were
influenced by the interaction of external forces along with the strategic choices and
values of the social partners. It also states that individuals make deliberate choices that
may affect the range of choices for the industrial and employment relation actors.
The framework demarcates the three levels of decision-making: at macro or global level,
meso or industry level and micro or workplace level. At all these levels, actors would be
making decisions, from ranges of choices or options, given the situation (Kochan et al.,
1984). The framework therefore promotes the idea that more realistic modes of industrial
and employment relations should recognize the active role of management in shaping the
system rather than reacting to union pressures. There is a shift in the distribution of
23
decision-making power and authority over industrial and employment relation issues.
Components of the system cannot be individualized for they interact with each other.
Distinct competitive strategies bring new types of employment practices, new public
policies and new corporate governance and are vital determination of industrial relation
practices (Deery et al., 2001).
3.2 LABOUR LEGISLATION: THEORETICAL APPROACH
The Collins Australian Dictionary (Butterfield et al., 2003: 123) defined Labour
legislation as “those areas of law, which appertain to the relationship between employers
and employees and between employers and trade unions”. The arguments behind the
need for labour legislation to rationalize conflicts among industrial and employment
relation stakeholders come from the pluralism approach. The approach recognizes that
organizations are composed of groups of individuals with unequal and differing interests,
objectives and leadership. They may have multiple sources of loyalty and competing
goals (Edwards, 2003; Balnave et al., 2007). The approach also differentiates industrial
and employment relation actors that recognize each other. It associated with the notion
that those who create the risk must deal with them. The legislation may provide the
mechanism for the parties to utilize. It does not intend to deny management right to
manage but promotes a shared responsibility. Therefore the skills, knowledge, capability
and contribution of workers are also of value to the organization and must be recognized
and considered. The fundamental principles of freedom of association and collective
bargaining and other related international conventions and treaties are testimony to this
on the part of the State.
Dunlop’s2 systems approach not only, among other things, identified industrial relation
stakeholders, also produced a broad-based integrative model of specific rules as an
outcome to regulate their relationships. This is subject to change, which may be
influenced by industrial relation stakeholders contrasting ideologies. The approach also
formulated a traditional institutional approach in the form of regulatory framework for
naturally stable and orderly employment relationships (Salamon, 2000). Despite its critics
2 Dunlop’s systems concept originated in 1958 where he first outlined the pluralist theory.
24
the ‘systems model’ is the foundation on which industrial and employment relation
stakeholders developed a body of rules that regulated their relationships (Salamon, 2000).
The formal and informal rules became the prime determinate of social relations at work,
the very essence of ‘neo-institutionalism’. This not only demonstrates the need for rules
but also the role of rules and regulation as analytical tools (Bray et al., 2006).
According to Dickens and Hall (2003), labour legislation was necessary to legalize union
activities from late 19th century and at the same time prevented hostile intervention by the
judiciary in industrial disputes. Thus legitimizes the existence of trade unions and the
methods of industrial action.
Bean (1985) regarded the primary purpose of the State to act as regulator. Historically,
legislation has been unilaterally imposed by the State in a piece-meal fashion. The role of
the State as impartial guardian of the public interest is a pluralism notion (Hyman, 1975;
Bray et al., 2006). This suggests that before the emergence of unionism, the State was
seen as protecting the weak from being exploited. However, since the bureaucrats and
politicians run the Government, their independencies are questionable at times. Possibly,
industrial and employment relation stakeholders are aligned to political parties such as in
Australia where the “Liberal Party championed the interest of business … Labor Party
was the political wing of the labor movement” (Balnave et al., 2007: 60).
Consequently, where social and economic issues are interrelated, corporatism – power
sharing between macro stakeholders is - necessary to provide social justice. The State
must take an active role in the regulation of the economy through social consensus. The
employer association and national union bodies are able to maintain membership and are
capable of frustrating each other (Balnave et al., 2007). With this in mind, the State must
be reminded that it should clearly demarcate its role as an employer from being a
regulator, including policy maker.
25
3.3 LABOUR LEGISLATION: HISTORICAL DEVELOPMENT
Originally labour legislation was developed in a piecemeal fashion in the UK during the
industrial revolution. The statutes were in acted in response to unacceptable judicial
decisions and the chaotic state of the existing law - enacted to address problems with
common law rather than to enact positive rights (Kesler and Palmer, 1996).
3.4 LABOUR LEGISLATION FORMULATION: LEGISLATIVE PROCESS
In the Westminster model, legislature is known as the Parliament. In such model,
Parliament is made up of members voted by the people in a national general election. In
this form of Government it is the leader of largest political party, that win the election, is
appointed the Head of Government who is also identified as the executive. The executive
is the branch of government responsible for the day-to-day management of the state. In
many countries, it is referred to simply as the Government. The Head of Government and
also the Prime Minister is assisted by a number of ministers, who usually have
responsibilities for particular areas (e.g. Minister for Labour), and number of civil
servants.
The main function of Parliament or legislature is to make and amend laws or legislation
that provides a framework within which citizens consent to be governed. Legislature is
made up of peoples representative with the power to use parliamentary procedures to
create, amend, and change laws as well as make decisions. The law created by a
legislature is called legislation or statutory law.
Parliament legislates by examining Bills (proposed laws), making amendments, and later
agreeing their final form. The Minister responsible for labour matters introduces Bills in
Parliament. The drafting part is the responsibility of civil servants (responsible Ministry
of Labour officials) in consultation with relevant stakeholders, including the legal
fraternity.
26
To become an Act of Parliament, a Bill must pass through a formal process before
acceptance. The process usually involves representatives of interest groups to
provide feedback on the proposed legislation via a committee. The committee
normally holds hearings and submits report for Parliamentary debate. The Bill is
passed into law only if after the debate majority of members agree. Otherwise, the
Bill is dead (Jonhson, 2003).
FIGURE 3.0: COMPARATIVE LEGISLATIVE PROCESSES IN UK, NZ AND
FIJI
In UK, it is the monarch (King or Queen) who initiates the legislative process. At the start
of each parliamentary session the monarch will announce the Government’s legislative
program. NZ and Fiji are both members of the Commonwealth and practice the
UK Model NZ Model Fiji Model Queens Speech
First Reading
Second Reading
Committee Stage
Report Stage
Third Reading
House of Lords
Royal Assent
Bill Introduced
First Reading
Select Committee
Second Reading
Committee of the Whole House
Third Reading
Governor General
Bill Introduced
First Reading
Second Reading
Committee of both Houses
Third Reading
Reporting Stage
Senate
PresidentSource: Other types of Bills,�http://www.igshistor yonline.co.uk/ Politics,%20resources/The%20legislative%20process%20in%20the% 20UK.ppt#267,12, p.265
Source: http://www.parliament.nz/en-NZ/PubRes/About/FactSheets/6/1/5/ 61548724d96f4a5e849c2546ffc7202a..htm
Source: http://www.parliament.gov.fj/ about/parlproc.aspx
27
Westminster model. In both cases the legislative process is initiated at the parliamentary
opening speech delivered by the Head of State.
In Fiji, a Bill is usually gazetted 30 days and Members of parliament receive the bill 21
days before the 1st reading. Following the reading it is the referred to a committee with
representatives of both houses. It is at this stage where public submissions and hearings
may be called for. The Bill and responses are deliberated section by section, after which a
comprehensive report, detailing the processes followed, submissions received and their
recommendation(s) is tabled for debate in the lower house. If passed it is than referred to
the upper house, and if passes then is ready for the assent of the President.
Figure 3.1 illustrates the similarities among the process used in UK, NZ and Fiji. It re-
emphasized the colonial history of NZ and Fiji and their relationships to the UK that
established their sovereignty in 1840 and 1874, respectively. In Fiji, it was the Legislative
Council that first passed legislation, which would be of no difference to NZ. The
Parliamentary process was adopted after independence.
3.5 FIJI’S DEPARTURE FROM LEGISLATIVE PROCESS
Fiji has departed from Parliamentary democracy on two occasions. The first was
following the 1987 coup. As the result labour reform in the 1990’s was implemented in
the form of decrees. The second occasion was the enactment and the promulgation of the
‘ERP’ in 2007 - 2008 following the 2006 coup. On both occasions, the interim or
caretaker Government failed to adhere to due legislative process.
3.6 LABOUR POLICIES
Labour policies guide decision-making processes with the goal of promoting growth and
productivity. The term may apply to public and private sector organizations, institutions,
groups and individuals. The policy planning process includes the identification of
alternative strategies, such as programs in priority areas, and choosing among them on
the basis of their impact on the nations industrial and employment relations environment.
28
Importantly since labour policies are formulated and put in place by the Government of
the day, successive Governments may have different policies. Labour policies may
therefore be understood as political, managerial, financial or administrative mechanisms
for reaching explicit goals. However, important elements of employment and social
protection is crucial for the development of new employment related securities in a
flexible labour market environment (Auer and Cazes, 2003).
Increasing employment would lead to higher economic growth, which labour policy
makers often considered as the mechanism of addressing social problems but seem biased
as growth is understood to benefit the elites more that the others (Mouly and Costa,
1974). There are two types of labour policy framework, categorized by the state as
‘active labour policies’ and ‘passive labour policies’. ‘Active labour policies’ are
government programmes that create employment whereas ‘passive labour policies’ are
the basic social programmes that provide monetary support.
The ILO and Organizations for Economic Co-operation Development (OECD3) countries
have identified five areas of special importance on which labour policies should focus
(United Nations, 2000);
1) Employment promotion
The Government should declare and pursue, as a major goal; an active labour policy
designed to promote full, productive and freely chosen employment.
2) Opportunity and security of employment
i. Equality of opportunity and treatment
Governments should pursue policies designed to promote EEO with the view
to eliminate all forms of discrimination and child labour.
a) Elimination of forced or compulsory labour
3 An international organization of 30 countries that accept the principles of representative democracy and free market economy
29
ILO Convention Nos. 29 and 105 calls for the elimination of all forms
of forced or compulsory labour. As at February 27th, 2008 170
countries have ratified Convention No. 29 while 167 countries had
ratified Convention No. 105.
b) Abolition of child labour,
ILO Convention Nos. 138 and 182 calls for abolition of child labour,
in particular, not to be engaged in any use of such labour. According to
ILO (2008), 147 countries had ratified Convention No. 138 and 163
Convention No. 182.
ii. Security of employment
Governments are encouraged to develop policies to deal with employment
stability and the social security of employment.
3) Human resource development
Governments are encouraged to develop systems for further training and
development as a guide that is linked to employment.
4) Conditions of work life
i. Wages, benefits and conditions of work
Wages, benefits and other conditions should be standardized. Comparable
employers should be expected to offer comparable conditions irrespective of
gender, ethnicity, age, religion, occupation, qualification or status of staff.
ii. Health and Safety
Governments are urged to ratify relevant ILO Conventions requiring
employers to maintain the highest standard of safety. Industrial safety became
a leading issue in labour policy in the 1970’s (McLean and Schneck, 1980).
5) Industrial relations practices;
i. Freedom of association and the right to organize
30
ILO Convention Nos. 87 and 98 protect the principle of freedom of
association and the right to join a trade union. The freedom of individuals,
unions or employers to join or to be associated with any other organization
without interference, must be respected by states ratifying these
Conventions.
ii. Collective bargaining and consultation
Employees as well as employers have the right to have representative
organizations of their own choosing recognized for the purpose of
collective bargaining.
iii. Grievances and settlement of industrial disputes
Irrespective of whether an individual is a union member or otherwise,
must have access to a grievance or dispute settlement mechanism.
However, the five focus areas targeted by labour policy makers have been challenged by
increasing flexible labour market. These challenges demand modification of labour
policies and identification of re-focus areas. A notable trend is the shifting of industrial
and employment relations system whether towards convergence or vice versa is still
debated amongst scholars.
3.7 LABOUR POLICY SHIFTS: GENERAL TRENDS
Drivers of supply and demand for labour have undergone remarkable changes over the
years. Similarly, labour and industrial relations system have also been transformed
through labour reforms (Prasad et al., 2003). The trends emanates from the introduced
reform programmes aimed at increasing the role of markets and curtailing that of the
State.
Among other objectives, part of the ‘Washington Consensus4’ was aimed at attaining the
economic and social objectives (Indart, 2004). These includes: deregulation of domestic
markets; privatization of state owned enterprises; and liberalization of trade and
4 The term used to summarize the commonly shared themes among policy advice by Washington-based institutions, such as the IMF, WB, and USA. Treasury Department, which were believed to be necessary for the recovery of Latin America from the financial crisesof the 1980s. The concept was first presented in 1989-90 by John Williamson, an Economist from the Institute for International Economics think tank based in Washington, D.C.
31
investment regimes, the liberalization of the financial sector, and the flexiblization of the
labour policy, to name a few. These policies introduced various free market policies
theoretically targeted most developed countries such as the G85.
In the 1980’s, trade unions and employer organizations perused strategies of collective
action and pursuing public goals. This includes price stability, involvement of the
tripartite social contracts on wage moderation and labour flexibility, indexation
mechanism and protective labour legislation (Baldassarri et al., 2003). Other changes
include developments in the employment structure and management of work that
recorded decline in traditional trade union density. This decreased collective agreement
coverage and loss of union power, but growth in ‘direct’ participation (Edwards, 2003).
There is shifts in employment from industrial to the service sector, growth in ‘secondary
and modern sectors’; growth of flexible forms of employment and white-collar jobs;
increasing EEO policies and participation of women. That confirms growing human
resource management techniques usage, including worker involvement schemes and
other individual oriented approaches (Bamber et al., 2004).
3.7.1 Labour Policy: General Shifts in the UK
The noted shift in UK, include the emerging of single dominant of employer strategies
and policies promoting decentralization and individualization aimed at increasing
flexibility. This includes growth in temporary and part-time work, outsourcing of non-
core organizational activities, increasing multi-organizational arrangements through
partnerships, franchises and alliances, individual performance-related pay and employee
involvement, and other managerial initiated techniques (Marchington et al., 2004).
3.7.2 Labour Policy: General Shifts in the USA
Outsourcing of non-core activities is also an identical shift in the United States of
America (USA) and growth of the unorganized sector in the private sector. Employers
continuously resisted the union movement by taking advantage of labour legislation
5 An international forum for the governments of Canada, France, Germany, Italy, Japan, Russia, the UK and the USA, the eight countries that represent about 65% of the world economy.
32
enforcement laxity (Katz and Wheeler, 2004). As such, the union density declined. They
also took advantage of technological innovations to meet competitive pressures.
3.7.3 Labour Policy: General Shifts in Other Developed Countries
Japan experienced growing participation of women, increased immigration of foreign
workers and move towards ‘information society’ (Kuwahara, 2004). The shifts, in Latin
American countries, were not only limited to the characteristics of the developed
countries. Among other indicators, there are signs of widespread deterioration of job
quality, increase in open unemployment, weak job creation and concentration in low-
productivity, increase in the income gap between the skilled and the unskilled labor force,
increasing poverty level, and increasing demand for skilled labour (Ocampo, 2004).
The NZ notable shift was similar after the introduction of ‘Employment Contract Act
1991’ that proposed to promote efficient labour market, and provide ‘freedom’, ‘self-
determination’ and ‘choice’ to all employment contracts that fragmented unionism
(Geare, 1994). However, the enactment of ‘Employment Relations Act’ in 2000 offered a
different philosophy to the regulation of industrial and employment relations. It clearly
reintroduced the promotion of collective bargaining and observance of ILO Conventions.
Trade unions were re-legitimized through the process of registration that enable the
pendulum to swung back to pre-‘Employment Contract Act 1991’ period but at a slow
pace (Wilkinson et al., 2003).
3.7.4 Labour Policy: General Shifts in Other Pacific Island Countries
Even though developments in Pacific Island Countries are slow, there are some noted
shifts in their industrial and employment relations. Cook Islands indicator showed
increasing growth since 2002 after the adoption of the 1996 public sector reforms driven
primarily by the tourism sector and its flow on effects to support industries in response to
1995 recession (Johnson, 2006). It noted increasing unemployment and consequently
increasing migration mainly to Australia and NZ. Nauru recorded increasing
unemployment, as the result of public sector reform and displaced workers re-entered the
employment sector as job seekers. However, Taiwanese workers were able to seek
33
employment in China as the result of the Government agreement with the Republic in
2005-06 on annual basis (Dame, 2006). Even though women participation remains low,
they are becoming economically active as compared to the past. This is also true in
Tonga, Cook Island and Vanuatu, PNG and Solomon Island almost reaching the 50%
labour force participation (Mamau and Halapua, 2006; Petau and Sapulai, 2006; Unusi
and Biliki, 2006).
3.7.5 Labour Policy: General Shifts in Fiji
Fiji’s labour force has been growing at a relatively slow rate. This is worsened by
accelerated emigration due to political instability as the result of three coups. The
first two were Rabuka led Military coup’s in 1987. The third was a Speight led in
2000, also supported by the Military, and again the fourth was the Bainimarama
led Military coup in 2006. Migration in this context is not a Fiji brain drain problem
alone but a global one. In the health sector alone, about 300 to 500 nurses left during the
past five years to work overseas (Fiji Times, November 5th 2008).
However, an offsetting factor has been the rise in the labour force participation
rate of females that stood at 33% in 1999 (Prasad et al., 2003) as the result of
annual increasing entrance to the labour force. However, the worsening
experience is the inadequate generation of employment opportunities with notable
consistent labour force entrants. Persistence of skill shortages as the result of
labour mobility that really worsened productivity level despite surge in
remittances close to 500% in 5 years up to 2004 (Sania et al., 2006).
Apart from the influences of permanent labour mobility, the labour force size depends at
the rate of population growth. This would have an impact on the demographic policy and
the supply of labour. This expectedly would differ between developed and developing
nations with an average of 1% and may have declined further as oppose to 2.7% of the
later, around the 20th century (Mouly and Costa, 1974). However, there are growing
opposing debates that these policies has either led to diverse outcomes or converged
towards one central best practice (Bamber et al., 2004). Either way, these are mere trends
34
that have been identified in most developed countries and the same trend of which is felt
in developing countries. This includes the respective labour legislation that reflects the
intended change.
3.8 CONCLUSION
The original labour legislation was introduced from the unitary approach through
unilateral imposition by the state. However, its theoretical framework is pluralist in
nature. As the impartial guardian, the state introduced labour legislation with the
intention to restrain the power of the strong. The benefit to the actors is tremendous given
that they have a say. The labour legislation started in the UK during the industrial
revolution that spread, which various countries has developed and reviewed. NZ and
Australia are very similar to other developed nations, whereas Fiji is similar to other
developing nations, despite having distinct industrial and employment relations system.
In this Chapter, I have reviewed literature relevant to this Thesis, seeking to examine the
theoretical framework and how selected countries have responded to globalization. It also
introduced the legislative processes, which Fiji departed in recent times.
However, the neo-institutionalism argued that in order to understand the current and
future direction, we must appreciate the past. The emphasis of the next Chapter is to
examine the industrial and employment relations in Fiji.
35
CHAPTER 4
INDUSTRIAL AND EMPLOYMENT RELATIONS IN FIJI
4.0 INTRODUCTION
This Chapter will examine Fiji’s industrial relations system before the introduction of the
‘ERP’. It attempt to highlight the origins of Fiji’s industrial and employment relations
and environment until independence. It covers the expatriate and immigrant labour
market of the mid 19th century to the development of the 1990’s labour reform. Therefore
the industrial and employment relations legislative base and legal framework was
borrowed from abroad, the enviroment of which was found to be similar to that of Fiji.
The Chapter also explores the changing labour market and policies that addresses
emerging patterns of industrial and employment relations.
4.1 COLONY OF FIJI’s LABOUR MARKET
In early June 1871, the Cakobau6 Government, who ceded Fiji to Britain in 1874, was
instituted through the blessing of British Parliament (Brewster, 1937; Wright, 1931). It
was the Colonial Government that was tasked to regularize Fiji’s forerunner labour
market. The Polynesian ‘Black birders’ were the forerunner labour market joined by the
natives from the coastal Ra, Ba and Yasawa areas (Bain, 1988). The Lovoni7 people
joined through captivity that was auctioned, as slaves, by the Cakobau Government, the
proceeds of which went to the Government (Routledge, 1939). They were hired under the
provisions of the ‘Foreign and Native Labourer Act 1871’, enacted by Cakobau’s regime
that tightly controlled conditions of employment. The Man Power Report revealed that
48,000 males were the available manpower (Colony of Fiji, 1942), not wage earners but
agriculturists (Colony of Fiji, 1941). The gender dominance and restrictions provided by
6 A succeeding chief of Bau who unified most of Fiji and proclaimed as the King of Fiji when first ceded Fiji to Britain in 1858 after accepting Christianity on 30th April 1854. His government was finally established and recognized in June 1871 who was one of the fourteen Fijian chiefs that ceded Fiji to Britain in 18747 Lovoni is an isolated and hilly village in the centre of Ovalau Island that was never at anytime invaded by an intruder, includingCakobau’s warrior, except by a Christian with the bible as his weapon.
36
the forerunner labour legislation disqualified employment of women and young persons -
below the age of 14 years.
After the collapse of cotton, the sugar industry was introduced that dominated Fiji’s
economy in the 1870’s. The Colonial Sugar Refinery of Australia emerged and drove
away all competitors. Copra was the other most important industry, behind sugar. Again
the trade was in the hands of the Australians (Howard and Chand, 1984). However, by
1924, Colonial Sugar Refinery was the sole miller, due to its capital advantage (Howard
and Chand, 1984).
4.1.1 The Sugar Industry: The Indentured System
In 1879, Fiji’s labour force was expended by the introduction of Indian immigrants under
the indentured system (Brewster, 1937). It was a British West Indies concept through the
British influence. The indentured system provided 5 years of service on sugar plantation,
and another 5 years of industrial residence. These entitled them access to the land,
practiced trades and were able to take up any occupation of their choice. The system was
abolished after 40 years through the influence of the Government of India.
4.2 COLONY’S OF FIJI’s LABOUR INSTITUTIONS
The Colonial administrators were tasked to establish state institutions. Their roles were to
regularize pre-colonial labour related matters through the introduction of various ‘Labour
Ordinances’. The regularization processes was a unilateral one on the part of the Colonial
Government’s based on its labour market needs, influenced by employers, and the
Native’s self-sufficiency concept (Colony of Fiji, 1941).
The Department of Native Affairs was the pioneer institution in charge of labour matters.
Mr. Henry Bentley was the first officer appointed as Protector of Polynesian Labourers
soon after cession (Colony of Fiji, 1875). The Protector of Polynesian Labourer’s role
through the Department of Native Affairs office was to handle labour matters.
37
Ordinance No XVIII 1875 titled “Duties of Secretary for Native Affairs & Protector of
Polynesians” was introduced in December the same year. Not until 1939 when the first
Industrial Relations Officer was appointed. Mr. Stuart Reay was seconded to Mauritius
Labour Department ‘to study modern treatment of labour problems’. On the same trip
toured Northern and Southern Rhodesia, Belgian Congo, Randa and Natal (Colony of
Fiji, 1941; Slatter, 1993). Upon his return, a year later, became the first Commissioner for
Labour until his retirement in 1953 (Slatter, 1993). Ordinance No 20 of 1941 - “Labour
(Welfare) Ordinance 1941” whilst provided for the appointment of a Commissioner of
Labour, also for the first time, decentralized certain powers “to enter, inspect and
examine at all reasonable times any estate which reasonably caused to believe that
workmen were employed or about to be employed” (Colony of Fiji, 1942). As such, the
administration of labour policy cannot be separated from Central Planning Office but
rather as one of its essential and basic components (Heron, 1974).
4.2.1 Process of Third Party Intervention in the Colony of Fiji
The 1998, the 86th ILO Conference voted for and adopted the Declaration on
Fundamental Principles and Rights at Work. This committed member States to respect,
promote and realize in ‘good faith’ the right of workers and employers to ‘freedom of
association’ and the effective right to collective bargaining. This also includes the
elimination of all forms of forced or compulsory labour, the effective abolition of child
labour and the elimination of discrimination in respect of employment and occupation
(ILO, 1997). It is the obligation of all members to respect the fundamental principles
involved.
Heron (1974) identified three major forms in Fiji, which the Government intervenes.
4.2.1.1 Freedom of Association and Collective Bargaining
In 1941, the principle was introduced in Fiji through the adoption of the Mauritius
concept of Industrial Association. It introduced registration of associations of any interest
group as a precondition to obtain legal status.
38
4.2.1.2 Regulation
In democratic nations, Parliament is the legislative institution mandated to pass
legislation. The process is initiated by the Ministry responsible through the creation of
labour policies, part of which are introduced in the form of regulation. The first labour
legislation ordained in Fiji’s history through the enactment of the “Polynesian Laborers
Act”, signified the importance of this significant role.
4.2.1.3 Wage fixing
Ordinance No 14 of 1935 - ‘Minimum Wage Ordinance’ was in recognition of the 1928
ILO adopted Convention concerning the creation of minimum wage fixing machinery for
the disadvantaged sectors of the economy. The organized sectors, on the other hand, have
the means to bargain.
4.2.2 Fiji’s Trade Union: The Labour Movement
The emergence of unionism in Fiji was largely in response to changing work relations
(Chand, 1988). Narayan (1984) and Chand (1988) cited the following occasions that
justify the emergence of unionism. In February 1886, 300 Indians at the Colonial Sugar
Refinery Navuso estate protested. In May 1886 and April 1887 130 protested and
marched from Nausori to Suva’s Government office, regarding low pay and over-tasking
against employers, overseers and Indian Sirdars. This was the origin of the existence of
employee’s collective voice in Fiji (Bilash, 2003).
Narayan (1984) further argued that the emergence of workers resentments in Fiji was
mainly through the sugar industry, culminated by five inter-related and separate factors.
1. The existence of the division of labour, where the Polynesian labourers, Natives,
Indians and the Europeans were segregated in different economic sectors. This
also means different terms and conditions and projects. It was termed by Narayan
(1984) as essentially a racial division of labour.
39
2. The separation of Native institutions resulted in Fijian labourers isolation from
other communities that discouraged development of common interest amongst
cultural boundaries.
3. The increase in the indentured population (at the time when the native population
was threatened by the introduced measles disease) was a concern.
4. Indians were able to buy freehold directly from Europeans, which threatened the
land ownership status. On the other hand the Natives collective ownership of the
land balance made the indentured population heavily dependent on lease land.
5. The Indians fear of their leaderless status over the Natives established institutions.
The five factors above justify that industrial conflicts were not racial and ethnic based but
class-based. These class-based factors were the basis of unionism in Fiji, which some
researchers claim were just mere racial in nature, such as Prasad et al., (2003). Narayan
(1984: 53) termed that as “superfluous interpretation”, failure to acknowledge the genesis
of community based, traditional labour market and the division of labour created by the
Colonial masters. However, there is no evidence to suggest that at any time attempts were
made to bridge the disparity, which still exist today. To justify this argument, the
Commissioner for Labour’s 1949 Annual Report revealed that ‘unions may be classified
broadly into three categories, viz., unions of cane farmers; unions of wage employees;
other unions (bus owners, copra producers etc)’ (Colony of Fiji, 1950).
Trade unions were able to establish their existence in Fiji in the 1920’s in the form of
loose association of workers (Hince, 1981; Bilash, 2003). The Government was willing to
recognize existed trade unions since all the established workers, who were union’s
members, were Europeans. Archival record confirmed the formations of ‘European Civil
Servants Association’ (1921), Methodist Mission School teachers (1924) and ‘Suva
Teachers Union’ in 1928 (Hince, 1981; Hince, 1985; Kumar, 1981; Chand, 1988; Prasad
et al., 2003). Individuals such as Sanday were influential in Lautoka. He attempted to
organize the ‘Fijian Wharf Labourers’ Union in October/November 1916 that sought
advice from the Australian union movement (Hince, 1981). One Lakshman was also
influential in the sugar industry (Hince, 1985). According to the Industrial Relation
40
Officer’s report 1939, Indian labourers’ informal association of workers were formed
from time-to-time but dissolved after having short existence (Colony of Fiji, 1941).
However, 80% of the cane growers in the Western and Central districts formed a farmers
association in Wailailai, Ba on November 27th 1937 that became the first cane growers
union, the ‘Kisan Sang8 (Colony of Fiji, 1941; Narayan, 1984). It was registered on
August 11th 1943 (Colony of Fiji, 1944; Hince, 1991) under the ‘Industrial Association
Ordinance 1941’. The unions were aimed at promoting and protecting the interest of the
workers (Lako, 2002; Prasad et al., 2003).
The Government attempted to suppress unions by introducing the “Labour Ordinance 1”
of 1875 and the “Masters and Servants Ordinance 1890” that restricted individuals from
committing dangerous acts against the Government. Those individuals who were found to
have committed acts that were considered dangerous to the peace and good order of the
Government were disciplined (Chand, 1988). The Public Department workers organized
an industrial unrest in 1920 and joined by the Municipal employees that lasted for a
month in demand for wage increase (Narayan, 1984). It started in Suva, spread to Levuka
and to central Colonial Sugar Refinery Mills in Rewa, Vunidawa and Navua (Narayan,
1984). For the Colonial Sugar Refinery workers, their demand was based on the
prevailing highest sugar price achieved in the London market ever since 1816 whilst
other sectors were based on the cost of living adjustment (COLA). The appointed
Arbitrator (Lord Denning) ruled against Colonial Sugar Refinery on the sharing of
proceeds with growers.
A Government team was formed to look into the wage grievances. It also proposed the
adoption of industrial association, a Mauritius concept (Colony of Fiji, 1941). People
were not only wage earners but also agriculturist where industrial organizations would be
more than employers and employees (Colony of Fiji, 1941). The ‘Industrial Association
8 Kisan Sangh was the first farmers' union formed in Fiji on 27 November 1937 as the result of the problems faced by Fiji Indian cane farmers of the Colonial Sugar Refinery that was organized in secret which later split and transformed over the years. They are now known as Sugar Cane Growers Association and National Farmers Union.
41
Ordinance 1941’ made provisions for the formation, registration and regulation of
associations and for that reason were also authorized to perform the role of ‘trade
unions’. Whilst only three associations were registered in its first year, by 1963 rose to
sixty-three out of which only forty-three existed as trade unions until 1978 (Narayan,
1984). It continued to increase over the years as collective solidarity was seen as the
workers power base.
TABLE 4.0: REGISTERED INDUSTRIAL ASSOCIATION/TRADE UNIONREGISTERED INDUSTRIAL
YEARS ASSOCIATIONS/ TRADE UNIONS
1941 3 1947 17 1949 25 1950 23 1957 40 1963 63 1978 43 1979 43 1980 43 1981 43 1982 46 1983 46 1984 46 1985 49 1992 65 2005 72 2006 72 2007 72
Source: Ministry of Labour, (2007).
The associations were not only confined to the sugar industry where disputes and strikes
were largely confined. By 1950’s, registered associations were diversified to other
industries such as aerodrome workers, commercial employees, firemen, motor drivers,
government service, seamen, stevedores, sugar mill workers, cane farmers and dairy
farmers (Narayan, 1984; Bilash, 2003).
42
In August 1951, six associations initiated to form the first national union body (Hince,
1991). In mid 1960’s the FIWC changed name to FTUC (Bilash, 2003) that affiliated
thirty-four registered associations, at one point (Kumar, 1981). It is affiliated to the
International Confederation of Free Trade Union (ICFTU). It also gave birth to the Fiji
Labour Party in 1985.
The formation of a national union body did not halt disgruntled and dissatisfied union
members from forming splinter unions. Bilash (2003) interpreted this trend as new
demands, emerged amongst members confirming the existence of various interest groups
and pluralism, as early as 1960’s. The first breakaway union was from the P.W.D. and
Allied Workers Union (Colony of Fiji, 1963). In mid 1970’s, this development drove
FTUC affiliates into two factions whose relationships was short-lived with the formation
of the first rival, the ‘Fiji Council of Trade Unions’ (FCTU). FCTU did not live a long
life, which was banished later (Kumar, 1981; Hince, 1991). In 1990, banished FCTU
members once again joined FTUC. However, internal bickering deteriorated in early 21st
century after FTCU formed the political party. It was the political differences that caused
the formation of the splinter and the third national union body in 2002, FICTU. While
FTUC stronghold stood by their political affiliation, others believed otherwise. They
viewed that workers interests can be compromised to party politics if they are not
separated (Singh, 2006).
TABLE 4.1: FIJI'S TOTAL WORKFORCE - 2007 Trade Union (TU) TU Membership % Membership
FTUC 29 33,000 10% FICTU 21 21,000 6% Unaffiliated 21 49,260 14% Unorganized 0 240,940 70% Total 71 344,200 100%
Sources: Created by the Author with data from FTUC (2005); FICTU (2006); Pulu (2007); FTIB (2004). Cited from FIBoS Annual Employment Survey (Updated: 14/04/04).
43
By 2007, FTUC had twenty-nine affiliated trade unions representing about 33,000
workers (FTUC, 2005) whilst FICTU had twenty-one affiliated unions, representing
around 21,000 workers (FICTU, 2006). Table 4.1 shows that out of the 71 active
registered unions, 21 are not affiliated to any national union body, comprises of 14%
whilst 70% of the workforce are unorganized.
4.2.3 Employer’s Association in Fiji
It appeared in some quarters that collective bargaining demands were backed by threats
which the employers sought for solidarity, a platform to collectively voice their concern
and counter unionism growth. In response to the formation of national trade union body
and the 1959 oil strike, FECA, a Malayan concept, was formed by employers. It was
established on June 14th 1960 that changed its name to FEF in 1991 and grew to over 170
members by early 1998 (Colony of Fiji, 1963; Prasad et al., 2001; Prasad et al., 2003).
Its membership further grew to 525 by mid 2007 (Fiji TV, Saturday 15th September,
2007).
4.3 FIJI’s FORERUNNER LABOUR POLICIES
Fiji’s colonial influence supported the argument that Fiji’s labour policies originated
from the British but modified to suit local conditions. Fiji’s first labour policies were
indirectly introduced through the Governors address to the farmers in Levuka (1875) and
at a Nasova meeting in Levuka (1880) (Colony of Fiji, 1888). The Governor used these
two forums to outline the six great wants of the Colony, which became the first
Development Plan. It includes capital, labour, means of communication, establishments
of judicial tribunals, foundation of educational institutions and increased revenue (Colony
of Fiji, 1888; Lal, 1983).
‘Active labour policies’ were first developed by the end of 19th century whilst the
‘passive labour policies’ were introduced in early 20th century. The policies were aimed
to create an investment environment that would create employment and boost the
economy. The employers cited the cotton industry problem for alternative industry and
44
labour supply, favoured by the natives self-sufficient and segregated system that justified
the introduction of the sugar industry.
4.3.1 Fiji’s Employment Sector
The traders introduced Fiji with the capital. Planters were the investors and also the
employers. They dominated the economy and industrial sector after the sandalwood and
sea cucumber trade of the earlier 1800’s. They were accessible to abundant supply of
local labour obtained at a cheaper rate but were protected (Colony of Fiji, 1888). They
were available but there was a process to follow (Fiji Islands, 1862). It was not easy for
the planters that made them look for other alternatives. The only option available was the
immigrant labourers that prevailed in Queensland at the time (Udal, 1871; Docker, 1981).
The Black Birders were the pioneer labourers, which the Colonial regime regularized
four days after cession. Despite the informal arrangements of the planters, the ‘Fijian
Labour Ordinance 1875’, was introduced to regulate the local labour market, which was
protected in fear of being extinct. The labour supply was reinforced by the indentured
system that was part of the formal economy since 1879. This was to the disadvantage of
the Natives that as the result kept them out of the mainstream economy. Therefore the
Natives protectionist labour policy was of a short-term advantage. But in the long-term
created a huge gap as they were pushed away from formal economic developments. It
could be intentional on the part of those in authority who deprived them from the
integrated economic development. By 1969, the Natives were made up of 43% of the
population but only got 15% of the professional and management jobs, whilst the Indians
were much better (Rokotuivuna et al., 1973). It was the Europeans who hold majority of
the top jobs whose average earnings were twice as high as of any ethnic community
(Rokotuivuna et al., 1973).
Whilst the Black Birders and the indentured labourers dominated blue-collar work force,
the Europeans dominated white-collar jobs. The white-collar workforce existed mainly in
the Government service and major employers like the Colonial Sugar Refinery etc. As
such, there were three entirely separate cultures with each ethnic group living different
life style as the basis of existing societies. However, the introduction and development of
45
international organizations such as ILO, local civil society organizations such as Human
Rights Commission, Women’s Right Movement, trade union youth and women’s wing
and other ‘watch dog’ organizations advocated EEO policies, which was one of the bases
for change.
4.4 DEVELOPMENT OF FIJI’s LABOUR LEGISLATION
Fiji’s forerunner labour legislation had ostensibly been ‘framed and designed to fit in the
Native policy and to meet the social conditions peculiar to the native’s way of living
considering their social obligations (Lal, 1992). However, idleness seem to be their chief
characteristics equivalent to the Australian Aborigines who were incapable of continued
labour despite being induced (Udal, 1871).
The following part will discuss selected labour legislation from Colonial times until post-
independence.
`4.4.1 Origins of Fiji’s Labour Legislation: Where we Started?
4.4.1.1 Immigrant Labourers Ordinances
The Colonial Government introduced the first labour legislation, “Polynesian Labourers
Act 1875” (Colony of Fiji, 1875). It aimed to regulate and control the introduction and
treatment of Polynesian labourers who arrived in 1864 (Udal, 1871). The legislation was
uplifted from the Colony of Queensland, Victoria, Australia (Colony of Fiji, 1875) the
provisions and the circumstances of which were found to be similar to that of Fiji. The
Queensland legislation was seen to be protectorate of the immigrant labourers, which was
seen fit to implement in Fiji due to the deplorable conditions and exploitations that were
recruited against their wishes and treated as slaves (Udal, 1871).
It’s not obvious that the next regulation was provided for the recovery of outstanding
remunerations upon expiry of contracts including their return passage. The “Polynesian
Labourers Wages Ordinance 1876” ensured employer’s obligation to settle remunerations
or liable for prosecution. It is evident that expatriate labourers were exploited through
46
non-settlement of outstanding dues. Ordinance No XXIV 1876 was also introduced, to
formalize, regulate and control the conveyance and recruitment of expatriate labourers.
This required the recruiting or conveyance agencies to seek Government’s approval in
order to rectify forced recruitment (Lal, 1983).
Similar circumstances were inherited with the sugar industry but this time through the
introduction of ‘Indian Immigration’ regulation for the indentured system.
4.4.1.2 Native and Fijian Labour Ordinances
Fiji’s second legal framework was the Natives protection concept whose plight abruptly
exposed to the challenge of western civilization. The Government dealt with the Native
issues with deep sensitivity and allowed a recovery period in fear of being extinct from
the foreign epidemic (Lal, 1983; Bain, 1988). The “Fijian Labour Ordinance 1875” was
purposely to regulate and control the hiring and services of the Natives (Colony of Fiji,
1875). The legislation required the recruiting agencies to obtain licenses whereas the
Natives could not be engaged without the permission of the Buli9 on the other hand.
Secondly, employers were obliged to pay the return cost of their labourers. Thirdly,
women and children under the age of 15 years were prohibited from entering into
contracts. Lastly, certain districts could be closed if the absence of workers contradicted
with the fulfillment of traditional communal obligation (Lal, 1992).
However, it was not a perfect legislation as it failed to address possible connivance of the
Buli who could be bribed by the employer to give consent. The Native protectionist
labour legislation was flawed since the Natives were exploited (Bain, 1988). The Natives
could be recruited under the ‘Masters and Servants Ordinance 1890’. It empowered the
District Commissioner to authorize recruitment without Chiefs consent and do away with
the provisions requiring close scrutiny from local officials.
9 Buli was the official district chief.
47
4.4.1.3 The Masters and Servants Ordinances
By the end of early 20th century, 500 Fijians were recruited under the ‘Masters and
Servants Ordinance 1890’and 750 under the ‘Fiji Labour Ordinance 1875’ (Lal, 1992). In
1905, further changes were made to labour legislation, at the behest of the planters that
permitted married Fijian males to be engaged for more than three months. But the basis
of approval was entirely if labours families were provided with adequate planting land.
Yet planters wanted further changes to enable them to recruit more Fijians. Through their
influences, the ‘Fijian Labour Ordinance 1912’ was introduced. It allowed the parties to
enter into any of these legislation, provided the recruited made arrangements for the
support of their dependents. It also allowed those that were on contract for two or more
years, or had completed their contracts, could re-enter into new contracts without seeking
permission. As the result, most Natives working on plantations, and all with Colonial
Sugar Refinery workers were recruited under the ‘Masters and Servants Ordinance 1890’.
Many were unaware of the silent features but the employers knew exactly what they were
doing. The employers, who knew of the illegal status of the contract, where labours could
not be prosecuted for breach under the pretext that they were lawfully policed, took this
silent feature to their advantage.
4.4.1.4 Minimum Wages Legislation
The ‘Native Labour Ordinance’ of 1883 mentioned that employers whilst applying to the
‘Native Commissioner10’ sought approval to employ certain individuals and must also
mention the proposed wages. It empowered the ‘Native Commissioner’ with the authority
to approve once satisfied on the security for the payment of wages. It could accrue from
day to day and including a return passage upon expiry of the contract. It therefore reveals
that the workers were proposed by the employers and agreed by the ‘Native
Commissioner’ or in other words, was imposed on them. There is no provision that
suggests that the labours were party to setting of their wages.
10 The ‘Native Labour Ordinance’ No IV of 1883 defined as the Officer by whatever name he may be known for the time being occupying the position of Head of Department of Native Affairs.
48
The ‘Native Labour Amendment Ordinance’ of 1886 introduced the ‘task11 work’ in
addition to rations12. It specified remuneration as a sum at the rate of not less than eight
pence for every ‘task’ that would be performed at the maximum of five ‘tasks’ and one
half-task weekly commencing on Monday. This was the first time that the State set
wages. The concept of ‘minimum13 wage’ was adopted through the enactment of the
‘Minimum Wage Ordinance’ of 1935, after UK ratified the convention regarding the
creation of minimum wage fixing machinery. It was adopted during the General
Conference of ILO League of the Nations on June 16th 1928. The legislation empowered
the Governor to determine minimum rates of wages for any occupation in the Colony by
proclamation. This was for general or specified area or district where wages paid to any
person in any occupation is unreasonably low.
4.4.1.5 Industrial Association and Trade Unions Legislation
The ‘Industrial Association Ordinance 1941’ introduced the industrial association
concept under the principle of freedom of association. It provided for the appointment of
a Registrar and legitimised formations of associations by employers and employees and
any other person engaged in any industry for specified purposes. For the first time in
Fiji’s history ‘Trade Union Ordinance 1964’ introduced compulsory registration of trade
unions in the wake of the disruptive 1959 strike and inhibited formation of general ones.
4.4.1.6 Industrial and Trade Disputes Legislation
The ‘Industrial Association Ordinance 1941’ and ‘Industrial Disputes (Conciliation and
Arbitration) Ordinance 1941’ for the first time, in Fiji, defined industrial disputes as;
i. Any disputes or differences between employers and employees, or between
employees and employees, connected with the employment or non-
11 The ‘Native Labour Amendment Ordinance’ No. IX of 1886 defined as that extent of piece-work that can be performed by an ordinary able-bodied Fijian in six hours working diligently at such work. Where Natives and Indians were employed by ‘task’ on the same work the ‘task’ for each shall be similar. 12 Schedule of food items that must be supplied to the worker by the employer on daily basis as part of wages, provided under the provision of labour legislation. 13 The ‘Minimum Wage Ordinance’ No. 14 of 1935 defined as the minimum rate of wages fixed as hereinafter provided in respect of the particular occupation followed by the person concerned and applicable to that person.
49
employment, or the terms of the employment, or with the conditions of labour,
of any person;
ii. Any dispute or difference between sugar-cane farmers and sugar
manufacturers;
iii. Any dispute or difference between any other persons in any undertaking,
industry, trade or occupation specified by the Governor in Council by notice
in the Gazette.
FIGURE 4.0: DISPUTE MECHANISM UNDER THE ‘INDUSTRIAL DISPUTES
(CONCILIATION AND ARBITRATION) ORDINANCE’, 1941.
Not settled
Appointed
Memorandum of Agreement
Report to Commissioner of Labour
Parties to respond within 14 days
Governor to refer
Source: Created by the Author, (2008) from the ‘Industrial Disputes (Conciliation and Arbitration) Ordinance’, 1941.
The ‘Industrial Disputes (Conciliation and Arbitration) Ordinance’ introduced the first
dispute settlement mechanism - conciliation and arbitration processes. The Governor may
Industrial disputes not settled by the parties even through the intervention of the Governor through the appointment of an independent Chairman
GovernorCommission of Enquiry
Conciliation Board
INDUSTRIAL
DISPUTES
SETTLED
Gazetting of the report
Reject/Accept
Court of Arbitration
50
appoint a Commission of Enquiry, to make an interim report from its findings or
Conciliation Board. The Conciliation Board was tasked to investigate all the merits of the
disputes and induce the parties to an amicable settlement. The legislation required the
Conciliation Board to submit a full report to the Commissioner of Labour on the
proceedings and steps taken. It included full statement of facts; the Memorandum of
Agreement or recommendation (in case of non-settlement); and the party’s
representatives. Upon the receipt of the report, the Commissioner of Labour would
publish in the Gazette. That required the parties to respond within 14 days to show
acceptance of the Memorandum of Agreement or the recommendation or reject both. The
Memorandum of Agreement when accepted by the parties became binding until any party
showed its intention to repudiate. Likewise in accepting the recommendation, the cause
of action or recommended settlement was binding as well. However, the Governor would
refer the dispute to the Court of Arbitration if satisfied that the conciliation machinery
failed (refer to Figure 4.0).
The significance of ‘essential services’ was recognized through the enactment of the
‘Essential Services (Arbitration) Ordinance’ of 1954. The legislation provided for the
Commissioner of Labour to invite the parties to negotiate. The appointment of an
Arbitration Tribunal was effected only if conciliation failed. The legislation for the first
time defined ‘trade dispute’ as any dispute or differences between employers and
workmen, or between workmen and workmen, or between workmen and any authority or
body, connected with the employment or non-employment, or the terms of employment
or with the conditions of labour of any person (Laws of Fiji, 1954.)
The “Industrial Disputes (Arbitration and Enquiry) Ordinance” of 1958 provided for the
establishment of an Arbitration Tribunal and a Board of Enquiry. It also made provision
for the settlement of disputes and for the purpose of inquiring into economic and
industrial conditions in the Colony (Laws of Fiji, 1958). The “Trade Disputes
(Arbitration, Inquiry and Settlement) Ordinance” of 1964 maintained the definition of
‘trade dispute’ under the provision of ‘Essential Services (Arbitration) Ordinance’, 1954.
However, this time excluded the disciplined services and the sugar industry.
51
4.4.2 Post-independence and before the implementation of ‘ERP’: Where we were?
This part summarizes the previous (old) legislation that the ‘ERP’ seek to consolidate.
4.4.2.1 ‘Employment Act’
The legislation covered the Government of Fiji and all persons in the service of the State
but exempt the discipline services (Military Forces, Police Force, and Prison Service). It
failed to specify other exemptions such as the domestic workers and ‘contract for service’
but covered all workers irrespective of the industry or sectors. It had provisions for the
control of minimum terms and condition of employment such as; contract of service –
both oral and written, protection – wage payments and recording of wages, grounds for
summary dismissal, provision as to notice - of either party, maternity protection, annual
holidays and employment of women, young persons and children, to name a few.
The legislation also made provisions for the establishment of the LAB. It’s mandated to
advise the Minister on matters related to labour. It also specified the duties and powers of
the Permanent Secretary and the officers appointed under the Act.
4.4.2.2 ‘Trade Unions Act’
It made provisions for the registration and regulation of trade union. It allowed trade
unions could be formed by the combination of temporary, part-time or permanent of more
than six workers. The principal objects of trade union were under its constitution and
rules. When formed, the union would apply to the Registrar of Trade Union within a
month of formation. The Registrar of Trade Union was empowered to; register, refuse to
register, call for other particulars, and cancel or suspend registration, as the case may be.
The Registrar of Trade Union was also empowered to monitor registered trade unions. It
exempted similar organizations registered as industrial associations and the unorganized
sector or individual workers. However, the Registrar of Trade Union’s decision could be
contested in the judicial system should the interested party need third party intervention.
52
4.4.2.3 ‘Trade Unions (Recognition) Act’
The legislation obliged trade unions formed under the provisions of ‘Trade Union Act’ to
seek recognition to its employer(s) for the purpose of collective bargaining. It would first
seek voluntary recognition. The Permanent Secretary would only effect determination
once the employer rejected the application for voluntary recognition. The party’s were
obliged to keep, maintained and provide records as and when required. Employers were
required under the ambit of ‘Employment Act’, Section 102, Part III, whereas ‘Trade
Union Act’ required trade unions under the Schedule of Section 37. It’s the responsibility
of the trade union to prove that it had 51% and more workers as its members (as a
majority union) or 30% membership (as a minority union).
Trade unions that employer(s) recognized had the right to negotiate on behalf of its
members. However, the Permanent Secretary is obliged to issue Compulsory Recognition
Order should the trade union satisfies the provisions of the legislation. But the Permanent
Secretary’s decision could be contested in the judicial system should the interested party
need third party intervention.
4.4.2.4 ‘Trade Dispute Act’
The legislation provided the mechanism for settlement of ‘trade dispute’ (dispute) and
the regulation of industrial and employment relations. It defined ‘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 non-employment, or with the terms of employment, or with the
conditions of labour, of any person’.
The legislation exempted disputes in the sugar industry and grievances in the
unorganized sectors. Both have distinct machineries. The dispute settling machinery
could only be used by recognized trade unions. It provided for the reporting of the dispute
within 12 months and the demarcation of ‘essential services’ from normal services. As
shown by Figure 4.1, only ‘essential services’ disputes were compulsory accessible to
arbitration. Non-essential services disputes would be considered deadlock without
53
remedy, except industrial action. However, non-essential services disputes may end up in
arbitration provided the parties entered into voluntary agreement to accept the decision,
which in most cases failed. That failure led to backlogs and unresolved cases, which the
reforms of the 1990’s sought to address.
FIGURE 4.1: TRADE DISPUTE RESOLUTION MACHINERY UNDER THE
‘TRADE UNION ACT’.
Not settled
Accepted
Essential Services
Non-Essential Services
Source: Ministry of Labour and edited by the Author, (2008).
However, the legislation restricted the ‘essential service’ workers of the right to strike by
imposed preconditions and empowered the Minister to declare solidarity strikes illegal.
4.4.2.5 ‘Wages Councils Act’
The legislation allowed for the establishment of wages councils. The Minister for Labour
would establish wages councils after consultation with the LAB. The basis of
determining the establishment of a wages council was when the Minister for Labour
would be satisfied that;
Recognized Trade Union or Employer to submit claim
Dispute reported to Ministry of Labour (COL/PS)
Conciliation
Deadlock
Report rejected
Referred back
Board of Inquiry
Voluntary Arbitration
No remedy, industrial action possible
DISPUTES
SETTLED
Award/Agreement
Compulsory Arbitration
54
1. There was no existing adequate machinery to determine remuneration and
condition of employment of workers in any industry or an occupation, or
2. The existing machinery was likely to cease to exist or was inadequate.
The wages councils sought to cover the unorganised sector workers. The councils were of
equal representation of employers and workers (union) and not more than three
independent members (one to be Chairman). The institution was empowered to make
Wages Regulation Orders where COLA was traditionally the normal wage-setting model.
However, Narsey (2006) criticized the Wages Councils’ inconsistent and ineffectiveness
who sighted no evidence of sound consistent methodology. The deterioration was
inflicted by employers who suppressed increases merely by assertion of their inability to
pay without genuine proofs. There were ten established and existing wages councils that
includes; Building and Civil and Electrical Engineering Trades, Whole Sale and Retail
Trades, Road Transport, Hotel and Catering Trades, Saw milling and Logging Industry,
Printing Industry, Garment Industry, Manufacturing Industry, Mining and Quarrying
Industry and Security Services.
4.4.2.6 ‘Public Holiday Act’
The legislation empowered the Minister for Labour to schedule and make national public
holidays. The Minister for Labour also has the power to declare public holiday(s) apart
from the scheduled dates, which is of national importance. An example was the national
celebration for the Fiji Sevens team that won the International Rugby Board series in
2006 season that was approved by cabinet and Parliament.
4.5 JUDGE MADE LABOUR LAW: COMMON LAW
Like any judicial system, the judiciary is responsible for enhancing the quality of justice
by ensuring an effective and accessible court system. It is the cornerstone of justice that
upholds the principle of equality, fairness and access whilst protecting the dignity and
rights of everyone. It is the legal right of any party to seek judiciary’s impartial
interpretations and decisions. However, should the decision may not be acceptable to a
55
grieving party the recourse is seeking higher courts decisions. These higher Courts
decisions as well as Arbitration Awards are ‘judged made laws’ and become common
law. It is often part of the legislation. To demonstrate the significance of this so called
‘judged made laws’, reproduced below are two separate cases the decisions of which are
part of legislation.
4.5.1: Case between Municipal Employees Union Vs Ba Town Council (High Court,
2002)
Judicial Review No. HBJ007 of 2002 where Justice John E. Byne of Lautoka High Court
ruled that the ‘Trade Disputes Act (Amendment) Decree No. 27’ of 1992 was
‘unconstitutional’. As such, affected the constitution of the Disputes Committee in this
case. The decision nullified the abovementioned decree, thus forcing all reported disputes
to go through the conciliation mechanism under the ‘Trade Dispute Act’. Technically, all
Disputes Committees decisions were unconstitutional. Upon this decision, the Permanent
Secretary rejected a trade dispute reported by the Transport Workers Union against Fiji
Ships & Heavy Industries Ltd for the termination of employment of one Nimilote
Camaibulu.
4.5.2: Case between Air Pacific Ltd vs. Fiji Aviation Workers Association (Court of
Appeal, 2002)
Court of Appeal No. ABU0023 of 2002 dated May 16th 2003 upheld the decision of High
Court Civil Action No. HBJ 16 of 2001 confirming the Permanent Secretary for Labour’s
decision to accept the trade dispute further clarifying the ‘… one year …’ period
provided for under Section 4(1)(a)(i) of the ‘Trade Dispute Act’. The Ministry’s official
whilst interpreted the clause taking the one-year from the date the negotiation procedure
between the parties was exhausted in case of unsettled ones. The Court of Appeals
decision interpreted the principal act to the stakeholders that the one-year starts from the
date when the offence was committed and this case from the date of the dismissal letter.
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4.6 SOCIAL PARTNERSHIP IN FIJI: THE TRIPARTITE FORUM
The late Ratu Sir Lala Sukuna introduced the ‘three-legged stool’ concept in Fiji. The
‘three-legged stool’ could be used as a chair, for sitting, or decoration tool. The concept
advocated that without a leg the stool was would be useless. In other words if there were
only two legs the stool would collapse, of no purpose. The concept was the refinement of
the Fijian ‘solesolevaki’ system. It means that two and more individuals can do more
together (collectively). Here, individual skills would be a collective strength as an
advantage compared to sole individuals. The ‘three-legged stool’ concept is based on the
pretext that Fiji is dependent on the Vanua – land and its people, Lotu – Christianity and
its values and Matanitu – the central Government. In this concept Fiji, as a nation, would
be without purpose if one of the leg were missing. These two models (‘solesolevaki’ and
‘three-legged-stool’) both advocated collectivism as their similarity.
Similarly, in industrial and employment relations, the stakeholders and social partners
(employers, employees and the state) needed each other. Without any party, the industrial
and employment relations would be incomplete. This was the Fiji National Tripartite
Forum building block, a Philippine model (Prasad et al., 1999). It was a trying moment
for Fiji as it was troubled with high inflation and economic recession. There was growing
trade union militancy that demanded higher wages, on one hand, and collective employer
resistance on the other (Kumar, 1981). The Tripartite Forum was established on
December 21st 1976 during a meeting of FEF, FTUC and the State, chaired by the Prime
Minister, in search for a tool to reconcile national interest (Prasad et al., 2001). It also
formalized the informal tripartite structure that existed such as the Wages Council; LAB
and Fiji National Provident Fund board that were based on two pillars: collective
bargaining and tripartism (Prasad et al., 2001). The distinct result of the Tripartite Forum
was the decrease in reported disputes during the existence of the forum (1976 – 1984), as
shown in Table 4.2, Phase 2.
Table 4.2, Phase 1 shows the period from 1874 to 1969, characterized by the existence of
an adversarial relationship between the union movement and the employers, with foreign
57
ownership. The conflicts that existed were more political in nature as there were demands
for independence from the British rule.
TABLE 4.2: TRADE DISPUTES REPORTED (selected periods)
PRE-INDEPENDENCE POST INDEPENDENCE Phase 1 Phase 2 Phase 3
YEARS DISPUTES YEARS DISPUTES YEARS DISPUTES1949 98 1975 94 1990 71 1950 112 1976 81 1991 73 1951 149 1977 78 1992 60 1952 141 1978 71 1993 85 1953 162 1979 66 1994 78 1954 216 1980 62 1995 88 1955 257 1981 53 1996 158 1956 262 1982 71 1997 170 1957 231 1983 61 1998 142 1958 236 1984 63 1999 143
1985 69 2000 114 2001 143 2002 150 2003 172 2004 165 2005 168 2006 160
Source: Consolidated by the Author, (2008) with figures from Narayan,(1984); Kumar, (1981); Lako, (2002) and Ministry of Labour (2006).
Table 4.2, Phase 2 was the period from 1970 – 1985. It was a period of harmonious
industrial and employment relations with the existence of the forum for the purpose of
consulting the social partners on economic policies. The decreased reported trade dispute
during this phase was the impact of the Tripartite Forum. Phase 3 reveals the collapse of
the forum in 1984 was its failure to secure consensus around the wage freeze imposed by
the State (Leckie, 1992; Prasad et al., 1999). The increase of reported disputes during this
period was the re-emergence of an adversarial relationship but this time between the
union movement and the ruling Government with its conservative agenda.
The Tripartite Forum was revived in April 1995 under a revised term of reference. This
includes wider economic and social issues such as productivity and human resource
development, except on wage guidelines. This time the chair was down graded to the
58
Minister for Labour. However, it was of no fruition as it was viewed as a vehicle for
implementation of certain programmes rather than the decision making body as originally
intended. From the union movement perspective, the reactivated forum was merely a
front to gain international respectability.
4.7 1990’s CONTROVERSIAL LABOUR REFORM
The collapse of the Tripartite Forum was mainly due to the imposed wage-determining
model based on the ‘Counter Inflation Act’. The Government’s restructure plan, such as
public sector reform, was further threat to the union movement. The plan also meant
changes of the legal framework to suit the changing policies. This involved the
Government adoption of an “interventionist” role in the area of collective labour law by
introducing labour reforms to curb union activities.
The political upheavals ever since 1987 also threatened investments that deteriorated
Fiji’s economy. The intervention of the Asian Development Bank (ADB), International
Monetary Fund (IMF), United Nations Development Programme (UNDP) and World
Bank (WB) recommended the devaluation of the Fiji dollar, corporatisation and
privatization of the public sector, deregulation of trade, tax reform, labour reform, and all
components of the structural adjustment program.
The Government’s 1991 National Economic Summit was for dual purpose. As a new
consultative forum, replacing the Tripartite Forum. And secondly, where the Government
announced its plans to deregulate the wage controls with effect from August (1984). It
provided for the market to set wage levels. The Government also recommended that
future wage determination to be linked with profit and productivity at enterprise level.
The intension was to encourage free collective bargaining. The social partners were fully
consulted where FEF was very much in favour and requested for immediate
implementation. However, FTUC was not in favour whose representatives walked off the
first two LAB meetings and deliberately abstained themselves during the final LAB
meeting where the reforms were on the agenda.
59
Whilst the government’s policy promoted collective bargaining on one hand, “clipped the
wings” of trade unions in the Labuor Reforms that involved controversial amendments to
the legislation. The reforms comprised the following decrees:
a) ‘Industrial Association Act (Amendment) Decree 42/91’
b) ‘Trade Unions (Recognition) Act (Amendment) Decree 43/91’
c) ‘Trade Unions Act (Amendment) Decree 44/91’
d) ‘Trade Disputes Act (Amendment) Decree 27/92’
And the following regulations:
(a) ‘Trade Unions Regulations (Amendment) Regulation 1991’ (Legal Notice 58/91)
(b) ‘Trade Unions (Deduction of Union Dues) Regulations 1991’ (Legal Notice
59/91)
The main components of this reform were:
(a) Trade union officials were barred from holding office in more than one union or
in Industrial Association.
(b) The ‘check off’ system as provided for under the Trade Union (Recognition) Act
was withdrawn where unions were to negotiate with the respective employers if
they wish to maintain such system.
(c) The unions were required to conduct secret ballot for members mandate under
the supervision of the Registrar of Trade Union or by an officer appointed by the
Registrar for election of office bearers, the strike mandate, amalgamations of
unions and any changes to the union’s constitution.
(d) The multiplicity of the unions through the recognition of minority unions.
(e) Restricting certain categories of workers from forming or joining unions.
(f) The immunities from civil claims by employers against unions were removed.
(g) The dispute machinery was also revised with reporting of disputes restricted to
recognize trade union, and
(h) Amended the definition of ‘trade dispute’ by distinguishing the ‘disputes of right’
and ‘disputes of interest’ with implemented separate dispute resolution
procedures.
60
FIGURE 4.2: ‘DISPUTE OF RIGHT’ RESOLUTION MACHINERY UNDER THE
‘TRADE DISPUTES ACT (AMENDMENT) DECREE NO. 27/92’
Source: Prasad et al., (2001), cited from Goundar (2007).
The ‘dispute of interest’ maintained the dispute mechanism under the ‘Trade Dispute
Act’ (also refer 4.4.2.4 and Figure 4.1). The amendment created the dispute mechanism
for ‘disputes of rights’, as shown in Figure 4.2. It shows that all disputes of this nature are
accessible to Arbitration. The introduction of the Labour Reform resulted in the reduction
of strikes from 1990 to 1995 (refer to Table 4.3).
Trade Union (Recognized) submits claim to employer
Negotiation settled
Not settled – disputes still exist
Registered with Permanent Secretary
Reporting of dispute to the Permanent Secretary
Dispute Committee (3 tripartite members)
Decision by consensus in 14 days
Unable to reach decision
Referred to Permanent Secretary
Minister to authorize referral to Arbitration
Permanent Secretary to refer dispute to Arbitration
Award in 28 days
61
TABLE 4.3: INDUSTRIAL UNREST – 1981 - 2006
YEARS NO. OF STRIKES1981 41 1982 44 1983 9 1984 22 1985 20 1986 9 1987 13 1988 12 1989 15 1990 25 1991 11 1992 5 1993 12 1994 6 1995 9 1996 12 1997 7 1998 6 1999 9 2000 13 2001 15 2002 25 2003 16 2004 7 2005 13 2006 13 2007 NP*
Source: (i) ILO (1990) – data from 1980 – 1989; (ii) ILO (2000) – data from 1990 – 1995, cited from Bilash, (2003) and Ministry of Labour, (2007). KEY: *NP – Not provided.
4.7.1 Impact of 1990’s Labour Reform
Despite the labour reforms positive impact to the national economy, FTUC reported to
the ICFTU that the reforms;
(a) Deprived the unorganized sector workers from organizing or the chance to
collectively pursue industrial grievance in industries where direct employer-
employee relationship is difficult to organize. Secondly, deprived individual
workers or non-recognized unions of the right to report a dispute.
(b) Deprived middle management categories of the right to form or join union.
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(c) Destroyed the union’s financial base when withdrawing the ‘check off’ system
and forced them to negotiate with individual employers. This further increases
the negotiable list.
(d) Destroyed the workers right to strike by virtually outlawing all forms of
industrial action by tightening legislative provisions through balloting. The new
requirement does not only incurred incalculable new expenses, at the same time
interfered with the independence of the union to administer their own affairs.
(e) Disallowed officials of a trade union or Industrial Association from holding two
offices.
(f) Allowed multiplicity of trade union and collective bargaining at enterprise level
and promoting registration of ‘in-house unions’, which intended to weaken the
industry based union structure.
(g) Overall, the reforms were a political assault of the union movement whose
primary objective was to destroy the union movement and farmers association.
The same report recommended to the ICFTU for;
(a) Solidarity support of its member affiliates;
(b) Fiji’s removal from the General System of Preferences (GSP) Programme. This
is what the Fiji Government feared the most, which would take time to regain
and would be damaging in the long run.
(c) Lobby through the Fiji Government to withdraw the reforms and ensure
consultation of the social partners.
(d) Lodge the complaint to the ILO based on the report on Fiji’s situation.
(e) Pressure the European community to closely monitor the prevailing human and
union rights conditions.
(f) Informed all international trade union agencies of Fiji’s situation.
In response, ICFTU lodged a complaint against Fiji Government to ILO. The complaint
letter was directed to the committee on Freedom of Association. The letter was based on
the ground that the reform was in breach of ILO Conventions 98 (ratified by Fiji in 1974)
and 87 sought Fiji’s removal from the GSP. The Fiji Government responded to the
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allegations by through detailed point-by-point rebuttal of specific allegations. It
attempted to justify that the ADB, IMF, UNDP and WB, in accordance with policies,
recommended the reforms as an integral part of an overall economic policy designed to
deregulate the economy and make it more internationally competitive. In effect, the
Minister for Labour, assured FTUC that the Government had accorded them recognition
as the sole representative of Fiji workers and the reforms would be reviewed, in full
consultation. However, this recognition was withdrawn after FTUC was not part of the
promulgation of the reform. The Minister for Labour once again revealed the
commitment knowing too well the impact of the suspension.
Whilst the ILO Governing Body deliberated on Fiji’s Case No. 1622, found Fiji to have
contravened the Conventions and the Principle of Freedom of Association. It
recommended approval of the ILO Governing Body that the Fiji Government must bring
its legislation in line with the Principle of Freedom of Association and continuously
update the forum. This includes;
1. The withdrawal of prosecution action against a union official for holding office
in two workers organizations and barring union officials from holding two
offices. It was considered not compatible with the right of the workers to elect
their representatives in full freedom;
2. Labour legislation must provide the freedom of wage-earners having multiple
employers to enjoy trade union rights and be parties to industrial disputes;
3. Solidarity support should be left for the unions to decide as their right to be
affiliated must be respected;
4. Union members right to free election must be respected;
5. Imposed standardized agreements relating to ‘check off’ must be removed where
the parties must be given the freedom to negotiate any rights and duties arising
from their signatures, to name few.
In July 1993, the Fiji Government in fear of being suspended from GSP agreed on few
changes;
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I. Uplifted the banning of multiple trade unions or Industrial Association office
holding and the withdrawal of prosecution case against the union official.
II. Maintained supervision of balloting but introduced notices period and 6 weeks
validity for strike notice.
III. Removal of the balloting for union solidarity support.
IV. Removal of standardized ‘check off’ agreements.
FTUC was still not happy with these changes and once again reported the nominal
changes, to ICFTU, which they argued, still failed to restore the freedom of association
and collective bargaining as recommended by ILO. It also called on the Fiji Government
to fully comply with the ILO recommendations. However, it was not until 1995 that the
LAB submitted its proposal for amendments to the reform to cabinet under LAB Paper
No. 4/95. It took the Government two years to deliberate and inform FTUC that cabinet
threw out the proposals contained in the LAB Paper No. 4 /95 which the union movement
were in favour, such as;
a) Removal of supervision of secret ballot
b) Reintroduction of the old provision of ‘Trade Union Act’, section 13(1)(e) on
multiplicity of trade unions. It dealt with the prerogative of Registrar of Trade
Union to register or refuse if satisfied that a union already existed that has
adequately the most representative or has represented substantial proportion of the
categories of workers.
c) Recognition be accorded where a union has most representation in that
organization
d) Reintroduction of the compulsory ‘check off’ provision
e) The Permanent Secretary was given additional power to accept disputes over
dismissals from unrecognized trade unions.
FTUC, whilst maintained its stand again renewed its call to its international affiliates for
continued pressure on the Fiji Government. However, the Government continued its right
wing policies until those controversial decrees were repealed under Section 195(1), of
Fiji’s ‘1997 (Amendment) Constitution’. This brought relief to the union movement.
65
However, it was during these loggerhead periods and its surrounding events that
eventuated for the need to overhaul the labour legislation. Through this initiative, a NZ
Consultant was engaged to commence drafting of the ‘Industrial Relations Bill’
commencing from 1996. A choice for NZ expertise was based on the ground that it had
transformed its industrial and employment relations through the ‘Employment Contract
Act’ of 1991, which no other developed country offered.
4.8 CONCLUSION
The regularization of Fiji’s labour market by the colonial Government was through
unilateral imposition of labour legislation on piece meal manner. The first legislation was
taken from Queensland, Australia, another colony of UK, the circumstances of which was
similar to Fiji. This development commenced as soon as Fiji was ceded to UK in 1874.
However, the adversarial approach in Fiji’s industrial and employment relations system
needs replacement since only the disputes that involved ‘essential services’ were
accessible to arbitration. The Arbitration was struggling to adjudicate on all cases brought
before it. But because of the adversarial system, most cases are stuck at conciliation in
deadlock.
This Chapter have examined the industrial and employment relation framework in Fiji’s
history and identified some of the areas where changes were needed. It has segregated the
historical timeline of the colonial times with the selected labour legislation. It also
highlighted some of the labour legislation that was developed during independence,
which was further segregated from the Republic of the Fiji Island era. Some of these
changes were in the form of labour reforms and ‘judged made laws’ but on ad hock basis.
This created inconsistencies and ineffectiveness, which the ‘ERP’ would bring about the
much-awaited consistent and efficient changes.
The next Chapter will examine the formation of the new ‘ERP’, from 1996 until full
implementation in 2008.
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CHAPTER 5
THE FORMATION OF THE NEW ‘ERP’: THE VARIOUS STAGES OF
DEVELOPMENT AND CONCERNS
5.0 INTRODUCTION
This Chapter will examine the formulation of the new ‘ERP’ and stages of development.
This includes the processes involved - from the operational level to parliament. There
were three developmental stages of ‘ERP’;
1. Stage 1: ‘Industrial Relation Bill 1997’.
2. Stage 2: ‘Employment Relations Bill 2004’.
3. Stage 3: ‘Employment Relations Promulgation 2007’.
The drafting of the ‘Industrial Relation Bill’ commenced in 1996, during the term of
Rabuka’s Government. In 2004, Qarase’s Government undertook the development of the
‘Industrial Relations Bill’ that became the ‘Employment Relations Bill’, during which
extensive and intensive consultations were undertaken, with consensus building. In 2007,
the ‘ERP’ was promulgated as law by the interim regime, eventhough contested by
FICTU.
The social partners that were party to the formulation of the ‘ERP’ were employers and
their association (FEF), trade unions and their national bodies (FTUC and FICTU), State
and other stakeholders.
5.1 FORMULATION STAGES OF ‘ERP’: 1996 - 2008
The Ministry of Labour is an executive arm of the State and is charged with labour
matters. In the development stages of the ‘ERP’, it was responsible for the coordination
and consultation of all industrial and employment relation social partners. It would ensure
that all operational and executive level due processes were fully exhausted before
advancing to parliament for the due legislative process. There were three stages and two
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levels of consultation processes that produced seven (7) drafts during the formulation of
the ‘ERP’ over the twelve-year period (refer to Table 5.0).
TABLE 5.0: ‘ERP’ FORMULATION STAGESDRAFTS DATES ACTIVITIES
1st 1996 - Drafting commenced with the help of Mr. Stan Williams of NZ. 1997 - 1st ‘Industrial Relations Bill’ Draft produced
2nd 1998 - 1st Draft deliberated in LAB that appointed a Sub-Committee, which after various meetings produced the 2nd Draft.
2002 - The LAB Sub-Committee produced 2nd Draft was submitted to ILO for technical comments.
3rd 2003 Oct2004 Feb
April
- ILO revised and 3rd Draft was submitted to the Ministry
- 3rd Draft upon received by Ministry was submitted to social partners - Ministry’s presentations to major social partners (FEF, FTUC & FICTU) - Presented to Chief Executive Officers in 4 sessions of Development Sub-
Committee. 4th 2004
June
Aug Nov &
Dec
- Establishment of Special Task Force & introduction of new policy framework that produced 4th Draft.
- Revised, modernized & 4th Draft was renamed ‘Employment Relations Bill’.
- 4th Draft was referred and deliberated by Cabinet Sub-Committee on Legislation that produced the 5th Draft
5th 2005 Jan Feb
Mar & April
- 5th Draft produced by Cabinet Sub-Committee on Legislation was referred to the Ministry
- LAB 2 days workshop conducted by the Ministry - Ministry’s Road Show on ‘Employment Relations Bill’
6th 2005 April
& May Aug Sept
Dec2006 May
- Outcome of LAB workshop and Road Show was produced as 6th Draft and referred to Cabinet Sub-Committee on Legislation
- Cabinet approval of 6th Draft - Introduction and 1st tabling of ‘Employment Relations Bill’ as Bill No.
16 to Parliament & referred to a PSSCES - PSSCES public hearing and site visits – Ministry of Labour presented 6th
Draft during Judges Seminar - Early National General election that lapsed passing of Bill No. 16 of
2005 7th 2006
June
July Dec 2007 Feb Oct
2008 April
- Re-tabled of Bill now as No. 8 (Draft 7) to Parliament after some improvement were put in place as the result of former PSSCES & referred to new PSSCES
- PSSCES public hearing and site visits - Military coup that lapsed passage of Bill No. 8 of 2006
- Interim Cabinet endorsed Draft 7 - Promulgation of ‘ERP’ & 6 months partial deferment
- Full implementation of ‘ERP’ Source: Created by the Author, (2008).
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5.1.1 Original Draft of ‘ERP’: The ‘Industrial Relations Bill’
The drafting of the ‘Industrial Relations Bill’ commenced with the help of Mr. Stan
Williams, former Assistant Secretary of NZ Department of Labour, an ILO Volunteer and
Consultant. In 1997, the original draft of the ‘Industrial Relations Bill’ was produced
(Parliament of Fiji, July 25th 2005; Ministry of Labour, 2005). Mr. Williams’s expertise
was sought because of his experience with the NZ ‘Employment Contract Act 1991’. The
NZ legislation promoted individualism based on free market principles that was
introduced in other areas of the economy in the late 1980’s. It incorporated the libertarian
notion that employers and employees were free agents and were free to negotiate prices
and conditions of work etc.. However, the legislation shifted NZ’s industrial and
employment relations away from collectivism. Fiji needed such technical expertise for
the direction of change.
5.1.2 Role of LAB in the Formulation of ‘ERP’
In 1998, the 1st draft of ‘Industrial Relations Bill’ was submitted to the LAB. A sub-
committee comprising of the major industrial and employment relations social partners,
was appointed to deliberate and submit a report to the board. The sub-committee was
tasked to review in detail the 1st draft, agreed on matters that they could agree with and
identify those areas where further discussions would be necessary. The major social
partners Consultants were also engaged during the deliberations. The sub-committee was
also involved in the extensive consultations and consensus building. It took the LAB14 six
years (1997 – 2003) to produce the 2nd draft. In early 2003 the 2nd draft together with the
LAB’s comments were submitted to ILO for technical examination.
5.1.3 ILO Technical Input in ‘ERP’ Formulation
In 2003, the ILO office in Fiji secured the services of Ratu Joni Madraiwiwi (former
Permanent Arbitrator and High Court Judge) as their Consultant. He was tasked to look
into the 2nd draft of the ‘Industrial Relations Bill’ and LAB’s comments. ILO examined
14 The role of the Labour Advisory Board under the Employment Act Cap. 92 “… shall consider and advise the Minister for Labour upon matters connected with employment and labor and upon any questions referred … by Minister for Labour”.
69
the 2nd draft in consideration of ‘international labour standards’ and ‘comparative labour
legislation and practice’. It inserted the EEO provisions and aligned the proposed
legislation to the ILO Conventions that Fiji had ratified and the ‘1997 (Amendment)
Constitution’. It strongly encouraged social and labour policies, including the adoption
and implementation of legal instruments as the result of extensive consultation and social
dialogue between the social partners.
In October 2003, the ILO office produced the 3rd draft of ‘Industrial Relations Bill’,
which recommended directions of change, including the fundamental principles of ‘right
at work’.
5.1.4 Further role of LAB
The LAB was established under the ambit of the ‘Employment Act’ as the central agency
to deal with national labour issues. In democratic societies, part of the process involves
consultation of the social partners in a transparent and accountable manner.
In February 2004, the 3rd draft of ‘Industrial Relations Bill’ was furnished to the social
partners, key stakeholders and civil society organizations for another round of
consultations. It was also presented to the workers (FICTU and FTUC) and employer’s
(FEF) organizations, when the demand arose.
In April 2004, it was also presented to the Government Chief Executive Officer’s four
sessions of the Development Sub-Committee.
5.1.5 Establishment of Special Task Force in ‘ERP’ Formulation
In June 2004, a Special Task Force was established. It comprised of senior officials of the
Ministry of Labour and the Solicitor General’s Office that:
1. Formulated Government policy framework;
2. Reviewed all the submissions with the aim of aligning all the provisions to
Government labour policies;
70
3. Modernized and redesigned the institutional mechanism through the introduction
of Mediation Service;
4. Integrated the principles of ‘good faith’ for better application; and
5. Adopted case law principles and redrafted problematic provisions.
In August 2004, the Special Task Force overhauled, simplified, revised and modernized
the ‘Industrial Relations Bill’ and produced the renamed ‘Employment Relations Bill’, as
the 4th draft, in consultation with judiciary and the Ministry of Labour (including the
Minister).
In September 2004, on the advised of the LAB, copies of the 4th draft were distributed to
the social partners for their comments. It was also presented to the Fiji Law Society
during their Annual Conference and University of the South Pacific students.
5.1.6 Cabinet Sub-Committee on Legislation in ‘ERP’ Formulation
In November 2004, the 4th draft was referred to Cabinet that appointed a Cabinet Sub-
Committee on Legislation. They were given time to deliberate until January 2005. It
produced the 5th draft and referred the draft back to the social partners for further
consultations and thorough dialogue.
5.1.7 Other Consultations and Road Show
In January 2005, as directed by the Cabinet Sub-Committee on Legislation and in receipt
of the 5th draft, the LAB through the Ministry of Labour mobilized another round of
thorough consultations. It started of in the form of a two-day LAB workshop in February
2005. Secondly, on one-on-one basis, and thirdly through a nation wide Road Show in
March and April 2005.
The Road Show commenced from Rakiraki, Tavua, Ba, Lautoka, Nadi, Sigatoka, Levuka,
Suva, Labasa, Savusavu and Taveuni. The Ministry of Labour officials through the Road
Show were an opportunity to present to the public the content of the proposed legislation
in an open forum. The public was also given the chance to ask questions, in order to clear
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doubts and submit their opinions on the strengths and weaknesses of the proposed
legislation. The consultation process only targeted the urban centers (towns and cities).
As the result, the 6th draft was produced from the opinions and feedbacks from the public.
5.1.8 Further role of Cabinet Sub-Committee on Legislation
In April and May 2005, all comments received from LAB, separate one-on-one meetings,
and Road Shows were finally re-tabled to the Cabinet Sub-Committee on Legislation
where policy positions were finalized. Amendments were also made on the remaining
unresolved provisions that finalized the 6th draft before it was tabled in Cabinet.
5.1.9 Legislative Process in developing the ‘ERP’: Bill No. 16/2005
On July 29th 2005, the ‘Employment Relations Bill’ No. 16/2005 was gazetted. The
parliamentary process requires gazetting at least 30 days before introduced in Parliament.
Members of Parliament must receive copies within 21 days as a prerequisite before the
Minister for Labour could introduce it in parliament (refer to Figure 5.0). In August 2005
the Cabinet approved the 6th draft for parliamentary process.
On September 19th 2005, the Minister for Labour (Honorable Kenneth Zink) introduced
the proposed Bill in the House of Representatives during its First Reading. He also
introduced the proposed legislation for its Second Reading on September 26th 2005, after
which was referred to the PSSCES (Ministry of Labour, 2005).
The PSSCES was scheduled to report back to the House of Representatives in April
2006. However, Parliament was prorogued on March 27th 2006 for an early election. The
PSSCES therefore did not complete its business due to the early National Election in May
2006 and the proposed legislation therefore lapsed.
The draft ‘Employment Relations Bill’ was also presented to the Judges during the
Judges Annual Conference in 2006.
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FIGURE 5.0: FIJI’S LEGISLATIVE PROCESS
Source: http://www.parliament.gov.fj/about/parlproc.aspx
5.1.9.1 PSSCES Public Hearing on Bill No. 16/2005 and Bill No. 8/2006.
In December 2005 the PSSCES commenced its work and called for oral and written
submissions. Statistics revealed that the PSSCES met nine organizations during its public
hearing visits in the western division; visited only two garment factories within the Suva
area. 70% of the responses were within the Suva areas. Given the revelation that the
translation of the ‘ERP’ was low priority, all responses were made in English (barring
Bill Gazettes 30 days before the 1st Reading. MP’s to receive the Bill 21 days prior to 1st Reading
1st Reading &Introduction of the Bill
2nd Reading, where debate & elaboration of the Bill takes place
Vote
Bill referred to Sector Committee
Sector Committee to report back to the House
3rd Reading, where debate & elaboration of the Bill takes place
Reporting Stage
SG to inform Senate of the Bill passage with/without amendment
Bill referred to Senate goes through the same process as the MP but without the Sector Committee
HOS AssentGazetting of the Bill as an Act
Vote & must pass by majority
73
any vernacular responses). Figure 5.0 also show that Bill No. 8/2006 followed the same
process but they did not start afresh as they continued from where the PSSCES of Bill
No. 16/2005 left off.
CHART 5.0: RESPONSES FROM PUBLIC THROUGH PSSCES
Suva 70%
Nadi19%
Lautoka8%
Tavua3%
Suva NadiLautokaTavua
Source: Created by Author, (2007) from Parliament (2006) data.
The PSSCES called for written and verbal submissions whose timetables and public
meeting schedules were widely advertised in the national dailies, radio stations and
television. Field visit arrangements were communicated through telephones and
formalized through correspondences.
Chart 5.0 confirms the revelation that respondents received from Suva areas were 70%,
Nadi (19%), Lautoka (8%) and Vatukoula in Tavua (3%) out of the 77 responses
received. This proved that the Parliamentarians, represented by the PSSCES members
failed to inform and hear from majority of their voters on their views regarding the
‘ERP’. Available statistic’s revealed that the PSSCES targeted only three western towns -
within the province of Ba, and the country’s capital, within Naitasiri province, yet failed
to attend to the rural areas of these provinces and the other remaining 12 provinces.
74
5.1.9.2 The ‘Employment Relations Bill’ No. 8/2006 and December 5th 2006 Coup
The Soqosoqo Duavata ni Lewe ni vanua Party led Government regained Fiji’s political
power and declared the winner of 2006 General Election. Once again the President
appointed Honorable Qarase as the Prime Minister. This time Qarase formed a multi-
party cabinet. On June 21st 2006, the appointed Minister for Labour (Honorable Krishna
Datt) introduced the proposed Bill No. 8/2006 (former Bill No. 16/2005 with minor
amendments) during the First Reading and Second Reading on June 22nd. It was referred
to PSSCES (Parliament of Fiji, July 1st 2006; Ministry of Labour, 2006) and was to report
back in September 2006 sitting (Fiji Times, September 21st 2006). The Minister for Labour
also revealed in his presentation that both Soqosoqo Duavata ni Lewe ni vanua Party and
Fiji Labour Party’s manifestos had a common purpose and there was no significant
difference (Fiji TV, Thursday June 22nd 2006). On September 11th 2006, the Chairman of
the PSSCES presented their report in Parliament (Parliament of Fiji, Monday September
11th, 2006).
On September 20th 2006 last-minute changes saw the debate suspended indefinitely (Fiji
Times, Thursday, September 21st, 2006). On September 30th 2006 debates continued
where the Attorney General and acting Minister for Labour (Honorable Qoroniasi Bale)
reported the amended Bill through parliament, read for the third time and got it passed
(Parliament of Fiji, 2006). However, the Bill was on its way to the Upper House (Senate),
for debate, pending the Head of State accent, when the Military coup took place on
December 5th 2006.
THE ROLE OF BAINIMARAMA’S REGIME IN THE FORMULATION
OF THE ‘ERP’
The interim Cabinet meeting in February 2007 endorsed the submission of the interim
Minister for Labour, (Bernadette Rounds-Ganilau), that the ‘Employment Relations Bill’
came into effect in October 1st 2007 (Fiji Times, Thursday, February 15th, 2007). On
September 17th 2007, the LAB met to confirm their support to the Cabinet’s decision (Fiji
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TV, September 17th, 2007). However, since the Bill went through Parliament, the interim
regime indicated that it would implement it through a decree (Fiji TV, March 8th, 2007).
TABLE 5.1: EFFECTIVE PROMULGATION DATES
PARTS of Employment Relations Promulgation 2007 Effective Dates 1 Preliminary 1st October 2007 2 Fundamental Principles and Rights at Work 2nd April 2008 3 Employment Relations Advisory Board 1st October 2007 4 Appointments, Powers and Duties of Officers 1st October 2007 5 Contract of Service 2nd April 2008 6 Protection of Wages 2nd April 2008 7 Holidays and Leave 2nd April 2008 8 Hours of Work 2nd April 2008 9 Equal Employment Opportunities 2nd April 2008
10 Children 2nd April 2008 11 Maternity Leave 2nd April 2008 12 Redundancy 2nd April 2008 13 Employment Grievances 2nd April 2008 14 Registration of Trade Unions 1st October 2007 15 Rights and Liabilities of Trade Unions 1st October 2007 16 Collective Bargaining 2nd April 2008 17 Employment Disputes 2nd April 2008 18 Strikes and Lockouts 2nd April 2008 19 Essential Services 2nd April 2008 20 Institutions 2nd April 2008 21 Offenses 2nd April 2008 22 Miscellaneous (except Sect. 264) 2nd April 2008
Section 264 of Part 22 1st October 2007 Section 265 of Part 22 2nd April 2008 Schedule 1 1st October 2007 Schedules 2 - 8 2nd April 2008
Source: Ministry of Labour, (2007).
The ‘ERP’ was implemented in stages. Table 5.1 shows that Parts 1, 3, 4, 14, 15, Section
264 and 265 of Part 22 as well as Schedule 1 were implemented from October 1st, 2007
whilst the bulk were enforced from April 2nd, 2008. The Promulgation allowed a 6
months grace period with effect from October 1st 2007 for workplace adjustments after
the Government carefully considered the views of employers and trade unions in the
context of the challenging state of the national economy and the Government state of
finance (Fijilive.com, Tuesday, September 25th, 2007; Fiji Government Online, Tuesday,
76
September 25th, 2007). The delay in full implementation also allowed the gazetting of the
regulations and codes with necessary training (Ministry of Labour, 2007). However, the
‘ERP’ was gazetted on Tuesday, October 2nd 2007 as Number 77, Volume 7, and
Promulgation No. 36 of 2007, attached as Appendix ‘B’.
GENERAL OBSERVATIONS AND CONCERNS
Table 5.0 shows that the legislation was undertaken by three Governments and took them
twelve years from drafting stage (1996) until full implementations (2008). It also showed
that the proposed legislation spent most times with LAB. The most time-spent were five
years (1997 – 2002) when they were tasked to review the 1st draft and produced the 2nd
draft. This duration should have taken advantaged by the Ministry of Labour to ensure
that all stakeholders were consulted and made aware of the developments. This includes
translation and awareness training in three main languages. This was a low priority area
to the Government despite of calls such as Fiji Law Society that large part of law-making
often proceeded in a way that left much of the general population behind (Fiji Times,
Saturday, January 28th, 2006). The Governments low priority policy was based on Fiji’s
literacy rate, which according to Qarase was over 90% in 2006 (Fiji Government Online,
May 6th, 2006). This revelation confirmed that over 90% of adult population who were
over 14 years old was able to read and write. However, the definition by Gove and
Webster, (1981) fell short as it fail to specify the language(s) that the reading and writing
to take place, such as common language(s) - English or vernaculars. Therefore, it does
not necessarily mean that 90% of the populations in Fiji are able to read and write in
English, the common language. As such, the illiterate population is more than the
remaining 10% who has the right to read and write or understand the context of the
proposed legislation in their mother tongue language(s). Rightly, the proposed legislation
would affect everyone irrespective of geographical locations, type of labour market and
economic status, political authority and status, social standing, literacy level etc, which
should have been maneuvered at the executive level.
77
When Fiji Chamber of Commerce and leading businessman called for the deferment of
the implementation of the ‘ERP’ (Fiji Times, Saturday, September 22nd 2007; Fiji Times,
Saturday, September 1st, 2007), the main concern was the lack of awareness, which
would see many disputes and disagreements on confusion alone. This could increase
unnecessary disputes that foremost defeats the purpose of the proposed legislation.
Members of Fiji Hotel Association felt that there was very little known about the ‘ERP’
and they saw it fit that they be trained and made aware of the legislation (Fiji Times,
Monday, September 3rd, 2007). This very much supported their colleague’s collaborative
argument. If this is the view of a FEF member (that has 525 members), which created
more than 79,000 employment (Fiji TV, September 15th, 2007) and was a party to the
formulation process, one can imagine the level of understanding for non-members. FEF
members were accessible to training and one can imagine the majority labour force,
which according to Table 4.1 70% were unorganized as at 2007. This suggest that only
30% of the active labour force were organized (Parliament of Fiji, 2006), whereas the
70% do not have the luxury to training in comparison to FEF and union members. Even
the Road Show was focused on the main urban centers which quietly ruled out grassroots
participation.
5.5 CONCLUSION
The ‘ERP’ was aimed to rebuild confidence, stability and growth in the labour market in
facilitating economic and social development. Drafting of the ‘Industrial Relations Bill’
commenced in 1996 (during the Rabuka led Government) and was renamed the
‘Employment Relations Bill’ in 2004 (during the Qarase led Government) and finally
promulgated in 2007 (during the Bainimarama’s led regime). However, Fiji’s legislative
process, (shown in Figure 5.0), was not fully exhausted. This confirms the fact that the
promulgation of the ‘ERP’ has been deviated from the due legislative process.
In this Chapter, the Thesis has examined the processes and stages employed as well as the
stages of development during the formulation of the ‘ERP’. The next chapter will
critically evaluate the ‘ERP’ through the comparative analysis of the previous (old) and
the current (new) legislation.
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CHAPTER 6
COMPARATIVE ANALYSIS OF THE OLD AND NEW LEGISLATION
6.0 INTRODUCTION
This chapter will critically evaluate Fiji’s ‘ERP’. This analysis is based on the parts and
provisions of the ‘ERP’, which will be comparatively, analyzed in view of relevant
provisions of the previous (old) labour legislation. The discussion will focus on the
similarities and differences of the provisions of the old and the new legislation.
6.1 APPLICATION PROVISIONS OF THE OLD LEGISLATION AND ‘ERP’
The ‘ERP’, Part 1, Section 3(1) states that the legislation applies to all employers and
workers in workplaces in Fiji. This includes the private and public sectors, state owned
enterprises, the sugar industry and domestic workers. Whilst the Sugar Cane Growers
Council agreed with the inclusion of sugar industry on one hand, Fiji Sugar Corporation
on the other hand opposed the sugar industry. The Fiji Sugar Corporation opposition was
on the basis that there were existing provisions, institutions and system under the ‘Sugar
Industry Act 1984’ and there was nothing in the provision of the proposed legislation that
amended those requirements (Parliament of Fiji, 2006; Singh, 2006). This concern was ill
founded because according to ‘ERP’, Section 235(3), the ‘Sugar Industry Act 1984’ is
amended to accommodate the sugar industry employment disputes and grievances.
Table 6.0 shows the shift in coverage. The ‘ERP’ seeks to cover all industries and
employment irrespective of the nature of work. This includes flexible forms of
employment (‘ERP’, Part 1, Section 3), compared to the permanent employment status in
the old legislation, specifically in ‘Employment Act’, Part 1, II and ‘Trade Dispute Act’,
Part II.
The ‘ERP’, Part 13 recognizes the disputes reported by individual workers who are non-
union members. This was not possible under the provisions of the ‘Trade Union Act’ and
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‘Trade Dispute Act’ since only union members were accessible to the mechanism. The
provision of the ‘Employment Act’ authorized the workers to file individual grievances
through the Ministry for Labour against employers for breaching the legislation, ‘contract
of employment’ and implied provisions. However, the silent features success rate
depends on the caliber enforcement officers and the willingness of the employer. The
complainant had a choice for the mechanism under the ‘Employment Act’ or civil claim
(personal), which was proven to be costly.
TABLE 6.0: APPLICATION PROVISIONS
Source: Created by the Author, (2008).
Similar to the ‘Employment Act’, the ‘ERP’ do not cover members of the Military
Forces, Police Force and Prison Service. Whilst the Prison Service and Fiji Law Society
agreed with the exclusion, FTUC opposed the exclusions of the Police Force and Prison
Service. FTUC was of the view that Section 33(1) and (2) of Fiji’s ‘1997 (Amendment)
Constitution’ provided for freedom of association and collective bargaining. The
University of the South Pacific was of the view that all workers, including these
institutions be covered but the ‘ERP’ to disallow ‘strikes’ and ‘lockouts’ because of
nature of their roles. On the other hand workers, irrespective of the institutions should not
be discriminated against their rights.
6.2 FUNDAMENTAL RIGHTS AND PRINCIPLES AT WORK
The ‘ERP’ follows Fiji’s obligation as an ILO member state, which provides for fair
labour practices for everyone. This provision upholds the fundamental rights and
OLD ACTS (EA - 1978) NEW ERP (2007) ‘Employment Act’ � Part 1, 2 applied to the Government of Fiji and
to all the persons in the service of that Government but exempted members of the Discipline Forces; 1. Military Forces, 2. Police Force, and 3. Prison Services
� It exempted domestic, temporary and casual workers (silent features).
� ‘Trade Dispute Act’ Part 2-exempted sugar industry but silent on domestic workers.
� Part 1, 3(1) applies to all employers and workers in workplaces including; 1. Government institutions including state
owned enterprise and statutory organizations,
2. Sugar industry; and 3. Domestic workers 4. Organized and unorganized workers
� There is no change on the status of the Discipline Forces
80
principles at work and disallows discriminations in employment. It is consistent with the
8 core and fundamental ILO Conventions that Fiji had ratified and Fiji’s ‘1997
(Amendment) Constitution’. All fundamental Conventions were ratified by Fiji by 2003.
A major difference is that the ‘Employment Act’ only considered the 3 of the
Conventions were ratified in 1974 (ILO, 2008) whilst ‘ERP’ considers all the 8. This
suggests that the ‘ERP’ has provided a vital change with global standard principles, a
huge difference compared to the old labour legislation, with very minor similarity as
shown in Table 6.1.
TABLE 6.1: ILO FUNDAMENTAL RIGHTS AND PRINCIPLES AT WORKOLD ACTS (EA) NEW ERP
� Only ratified three (3) fundamental ILO Conventions and made no reference to the declaration but was partly covered under Section 32 and 33 of Fiji’s 1997 (Amendment) Constitution.
� The 3 are identified in items 6.2.1, 6.2. 3 & 6.2.5.
Part 2, 6(1) – (5) confirms ratification of 8 core ILO Conventions. They are:1. Convention No. 29 - Forced Labor, 1930; 2. Convention No. 87 - Freedom of Association and Protection of the
Right to organize, 1948; 3. Convention No. 98 - Right to Organize and Collective Bargaining,
1949; 4. Convention No. 100 - Equal Remuneration, 1951; 5. Convention No. 105 - Abolition of Forced Labor, 1957; 6. Convention No. 111 - Discrimination (Employment and
Occupation), 1958; 7. Convention No. 138 - Minimum Age, 1973; and 8. Convention No. 182 - Worst Forms of Child Labor, 1999 � Also comply with Fiji’s ‘1997 (Amendment) Constitution’
Source: Created by the Author, (2008).
6.2.1 Convention No. 29 - Forced Labour, 1930;
a) ‘ERP’, Section 4 defines ‘forced labour’, including five proviso
categories, similarly to the provisions of Section 24(1) of Fiji’s ‘1997
(Amendment) Constitution’ and Section 6(1) of the ‘ERP’. It does not
allow any person to perform any form of forced labour.
b) The term is not defined in the interpretation provision of the ‘Employment
Act’. However, the ‘Employment Act’, Part VIII restricted employment of
women, young person and children, despite the earlier ratification of
Convention on 19/04/74.
c) Convention No. 29 is classified together with Convention No. 105 relating
to ‘Elimination of forced and compulsory labour’.
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6.2.2 Convention No. 87 - Freedom of Association and Protection of the Right to
organize, 1948;
a) ‘ERP’, Section 6(6) deals with individual workers right and freedom for
association. Association with any trade union is in compliance with
Article 2 (of the Convention) and Section 33(1) of Fiji’s ‘1997
(Amendment) Constitution’. However, this is a new addition, which was
mentioned in the ‘Industrial Association Act’, Section 22.
b) ‘ERP’, Part 14, Section 130 and Schedule 5 are similar to ‘Trade Union
Act’, Part V, Section 37 and the Schedule that provides guideline for trade
union members to draw up their rules and constitutions. This is in
accordance with Article 3 of the Convention.
c) Amalgamation of trade union under ‘ERP’, Part 14, and Section 123 is
similar to ‘Trade Union Act’, Part VI. However, differs on affiliation to
federations under Section 124 in accordance with Article 5 of the
Convention. This is silent in the old legislation. Similarly the ‘ERP’ is also
silent on the right of employers to form associations. It is mentioned under
the provision of ‘Industrial Association Act’ that it cannot perform the role
of trade union, as in the case of workers who can form trade union.
Secondly, it is also silent on the right of both the trade union and its
federations; and employers and its associations for international affiliation.
It chose to be specific on workers and unions but silent on employers.
d) Convention No. 87 was ratified on 17/04/02 and is classified together with
Convention No. 98 relating to freedom of association and collective
bargaining.
6.2.3 Convention No. 98 - Right to Organize and Collective Bargaining, 1949;
a) Features discussed in 6.2.2(a) is similar with Convention No. 98,
b) Features discussed in 6.2.3(a) and Section 6(2) provides adequate
protection against discrimination and anti-unionism in accordance with
Article 1 of the Convention,
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c) ‘ERP’, Section 125(1)(f) could deny registration of trade unions whether
financial or other means for the purpose of being controlled by the
employer in accordance with Article 2 of the Convention. This is a new
provision that was not a criterion for refusal of registration under the
‘Trade Union Act’, Section 13.
d) Workers have the right to join a trade union of their choice, for the
purpose of collective bargaining, irrespective of whether there is majority
(50%) or minority (30%) membership. The membership threshold was the
requirement under the provision of the ‘Trade Union (Recognition) Act’
that has been repealed by ‘ERP’, Section 265.
e) Convention No. 98 was ratified on 19/04/74 and is classified together with
Convention No. 87 relating to freedom of association and collective
bargaining.
6.2.4 Convention No. 100 - Equal Remuneration, 1951;
a) ‘ERP’, Section 4 defines ‘remuneration’ similar to Article 1(a) of the
Convention, but differs with the ‘Trade Union Act’ that only defined
‘wages’.
b) ‘ERP’, Section 6(4) and 79(2) prohibits gender discrimination of
established rates of remuneration, in compliance with Article 1(b) of the
Convention. This is a new provision that was silent in the old legislation.
c) This provision of the ‘ERP’ is also in line with Chapter 4 – Bill of Rights,
of Fiji’s ‘1997 (Amendment) Constitution’. It was silent under the old
legislation.
d) The ‘ERP’ provides the grounds based from Section 38 of Fiji’s ‘1997
(Amendment) Constitution’.
e) This Convention was ratified on 17/04/02 and is classified together with
Convention No. 111 relating to ‘Elimination of discrimination in respect
of employment and occupation’.
83
The introduction of this concept is further strengthened under ‘ERP’ Part 2 that affirms
the reproductive right of women and maternity leave. It also ensures that women are not
disadvantaged through that very right. Even ‘ERP’ Part 13 and 20 allows the
establishments of institutions that ensure effective protection of these rights. The efforts
are in compliance with the United Nation Convention on the Elimination of all forms of
discrimination against women (Parliament in Fiji, 2006).
6.2.5 Convention No. 105 - Abolition of Forced Labour, 1957;
a) The provision discussed in 6.2.1(a) is relevant in this case, including
‘ERP’, Section 184. This prohibits expulsion of trade union, federation or
association members from affiliated bodies as punishment for refusal to
participate in unlawful strike or lockout.
b) ‘ERP’, Section 6(1) prohibited any form of forced labour that was silent
under the provision of the ‘Employment Act’.
c) The Convention was ratified on 19/04/74. It is classified together with
Convention No. 29 relating to ‘Elimination of forced and compulsory
labour’.
Section 38(8) of Fiji’s ‘1997 (Amendment) Constitution’ provided a limit to freedom
from discrimination. This is if it involved application of customs and traditions in terms
of holding, use or transmission of, or to the distribution of the produce of, land or fishing
rights. To avoid any future possible confusion, it is vital that labour legislation make
specific provision on the various types of labour practices, which would fall under this
category (Prasad et al., 2006). However, there is no indication in the previous Chapter (5)
that Section 11 of the ‘Fijian Affairs Act Cap. 120’ was consulted, for matters that affect
the interests of the indigenous15 community, the institution that would have addressed
this concern.
15 According to FBoS 2007 Population Census, indigenous Fijians consist of around 57% of Fiji’s overall population (http://www.statsfiji.gov.fj/cens&surveys/cens&surveystats_index.htm).
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6.2.6 Convention No. 111 - Discrimination (Employment and Occupation), 1958;
a) ‘ERP’, Section 6(2) defines ‘discrimination’ in compliance with Article 1
of the Convention and Section 38(2) of Fiji’s ‘1997 (Amendment)
Constitution’,
b) ‘ERP’, Section 75 reflects the prohibited grounds of discriminations as
described in Fiji’s ‘1997 (Amendment) Constitution’ as discussed in
6.2.4(b), which is not so under the old legislation.
c) Convention No. 111 was ratified on 17/04/02 and is classified together
with Convention No. 100 relating to ‘Elimination of discrimination in
respect of employment and occupation’.
6.2.7 Convention No. 138 - Minimum Age, 1973;
a) The minimum employment age only applies to ‘child’ as defined in ‘ERP’,
Section 4 as ‘a person who is under the age of 18 years’, whereas
‘Employment Act ’ defined the same as ‘a person who has not attained the
age of fifteen years’. Both legislation mentioned minimum age but differ
in age threshold.
b) ‘ERP’, Section 93 – 99 provides minimal employable age of 15 and
restricted hours of work in compliance with Article 2 and 3 of the
Convention. This differs to ‘Employment Act’, Section 59 that provided
minimum employable age of 12 but similar in restricted hours of work, as
in ‘ERP’ Section 64.
c) Convention No. 138 was ratified on 03/01/03 and is classified together
with Convention No. 182 relating to ‘Abolition of child labor’.
The emergence of this Convention was mainly to protect children from ‘child 16labour’.
16 Is the employment of children under an age determined by legislation or custom. This practice is considered exploitative by many countries and international organizations. ‘Child labor’ was utilized to varying extents through most of history, but entered public dispute with the beginning of universal schooling.
85
6.2.8 Convention No. 182 - Worst Forms of Child Labour, 1999;
a) ‘ERP’, Section 91 specifically outlines prohibited and immediate actions
for the elimination of the worst forms of child labour in compliance with
Article 2 of the Convention. A new provision that proactively prohibited
child labour, which ‘Employment Act’, Part VIII only restricted the
employment of children.
b) Convention No. 182 was ratified on 17/04/02 and is classified together
with Convention No. 138 relating to ‘Abolition of child labour’.
6.3 EMPLOYMENT RELATIONS ADVISORY BOARD (ERAB)
The ERAB is established under this Part to advise the Minister for Labour on all matters
pertaining to employment relations, similar to the LAB in the ‘Employment Act’. This is
just the change of title, but has similar roles and duties, despite ‘ERP’s’ much wider role
of policy advice. This includes the specificity on appointment criteria, duration to hold
office, board memberships, and appointing authority as shown in Table 6.2. Another
notable difference includes members may hold office for two years and are eligible for
re-appointment.
The appointment criteria under ‘ERP’, Part 1, Section 8 is based on merit in the opinion
of the Minister for Labour, those that have the experience and expertise in, the area
covered by the ERAB functions. There was not any specified criterion under the
provision of the ‘Employment Act’, as another difference. The ‘ERP’ also outlined that
the Minister for Labour may consider the principles of equality enshrined under Section
38 of Fiji’s ‘1997 (Amendment) Constitution’ in appointing members, which failed the
‘Employment Act’. The word ‘may’ is used, which can produce bad governance, which
must be proactively protected to ensure that it must be on the basis of appointing
members rather than on the discretion of the Minister for Labour. Another difference is
the ERAB chair that shall be the Permanent Secretary, who must appoint a Secretary
similar in the ‘Employment Act’. The provision of ‘Employment Act’ provided that the
Minister for Labour might appoint anyone else, apart from Permanent Secretary, as chair.
86
TABLE 6.2: LABOUR ADVISORY BOARD vs. EMPLOYMENT RELATIONS
ADVISORY BOARD
Source: Created by the Author, (2008).
The ‘ERP’ requires the ERAB for the first time to submit annual reports for inclusion in
the Ministry of Labour’s Annual Report, which was not mandatory in the ‘Employment
Act’. A new provision is the ERAB’s facilitative role for the establishment of the Labour-
Management Consultation and Cooperation (LMCC) Committee under ‘ERP’, Section
9(3), and another difference, which was not provided in the ‘Employment Act’.
6.4 APPOINTMENTS, POWERS AND DUTIES OF PUBLIC OFFICERS AND
ADMINISTRATION OF ‘ERP’.
Table 6.3 shows that ‘ERP’, Part 4 establishes the administration structure for the
appointment of appropriate manpower to administer the labour legislation. It enables the
execution of the States executive role, such as establishing institutions under the
provisions of the ‘ERP’. This includes Mediation Services, Employment Relations
OLD ACTS (EA) NEW ERP � ‘Employment Act’ Part II, 3 provided Labour
Advisory Board establishments - representatives of Government, employers & employees � Chair may be appointed by the Minister
but Permanent Secretary to appoint the Secretary.
� Part II, 4 provided the duties to consider and advise the Minister on matters connected with employment and labor � Any questions referred to the Labor
Advisory Board by the Minister for Labor
� Part 1, 8(1) provides ERAB establishment to advise the Minister on industrial relation matters.
� Part 1, 8 (2-4) empowers the Minister to appoint members - public officers as representatives of Govt, employers, workers, and other persons on merit.
� Office term - period not exceeding 2 years � Eligible for re-appointment.
� Part 1, 8(5-6) Permanent Secretary as Chairperson who appoint ERAB Secretary.
� Part 1, 9 provides specific Board functions � Submit reports to be included in the
Ministry’s Annual Report � Facilitate LMCC.
� Board & Advisory Committees allowances be fixed by Minister � Appointment & termination.
� Seat becomes vacant for failing to attend 2 consecutive meetings without the approval of the Chairman
� Termination based on misbehavior, bankruptcy & other good cause.
87
Tribunal and Employment Relations Court, in contrast to Conciliation and Arbitration
Tribunal under the provisions of ‘Trade Dispute Act’ and High Court.
TABLE 6.3: COMPARATIVE ANALYSIS OF MANPOWER AND EXECUTIVE
FUNCTIONSOLD ACTS (EA, Part III) NEW ERP (Part 4)
‘Employment Act’, Part III; � Section 5 – Public Service Commission
appoints the Permanent Secretary and officers.
� Section 6 – Delegation of powers by Permanent Secretary
� Section 7 – Permanent Secretary may call for returns and no specific recourse for contravention.
� Section 8 – Authorizes officers to institute proceedings
� Section 9 – Powers of officers to inspect etc…
1) Including hospitals, dispensary, kitchen, wharfs etc…
� Section 10 – Appeal 1) Any person or employer may appeal to a
Magistrate Court � Section 11 – defined duties of officers � Section 12 – provided the offence for delay
or obstruct officer 1) Shall be liable on conviction
� Section 15 – PS and Public Officers are in charge for administration of ‘ERP’. (Similar to Employment Act, Section 5)
� Section 16 - Delegation of powers by Permanent Secretary (Similar to Employment Act, Section 6)
� Section 17 - Permanent Secretary may call for information. (Similar to Employment Act, Section 7)
� Section 18 - Authority to institute proceedings. (Similar to Employment Act, Section 8)
� Section 19 - Powers and functions of officers (Similar to Employment Act, Sections 9 & 11 but limited to any workplaces, on-the-spot fine, which employers can accept or contest in Tribunal
� Section 20 – Interest and confidentiality (1) Permanent Secretary, and appointed Public
Officer - (a) Must not have any interest in a
workplace;(b) Must not use or reveal confidential
information (c) Must treat as confidential source(s) of
complaint or information Source: Created by Author, (2008).
Whilst the administration officers appointing authority was provided under ‘Employment
Act’, Section 5, ‘ERP’, Section 15 is similar, as shown in Table 6.3. The Permanent
Secretary, from time to time, may delegate powers to any Public Officer for the
performance of certain duties, a similar feature. ‘Employment Act’, Section 16 and
‘ERP’, Section 6 are also similar such as the authority to appear before the Tribunal and
Court to institute proceedings under Section 18. This is also similar to the role of
Enforcement Officers who constituted proceedings under the provision of the
‘Employment Act’, Section 8.
88
Public Officers with delegated powers may enter workplaces for the purposes of
performing functions and duties under ‘ERP’, Section 19, similar to the provision of
‘Employment Act’, Sections 9 and 11. But ‘ERP’, Section 19 intends to cover all
workplaces, as specified under ‘Employment Act’, Section 9. However, the ‘ERP’ have
provisions to address specific modern day practical norm that was silent in the
‘Employment Act’. This includes:
1. The requirement for an employer to produce any of its employee and records
under the legislation,
2. Interview any person connected with employment or legislation,
3. May seek information from person(s) whose evidence is necessary;
4. Inquire from an employer or his/her representative regarding matters connected
with the provision of ‘ERP’, which was not clear under old ‘Employment Act’,
Section 9 and 11.
Another difference is that ‘ERP’, Section 20 specifies that the Permanent Secretary and
all appointed Public Officers must not have any conflict of interest. They must treat all
information as confidential, even after living the service. This was silent in the
‘Employment Act’.
It must be noted that the introduction of new provisions through the ‘ERP’ no doubt
introduces additional roles and demands specific skills from officers appointed to
administer the legislation. Some of which includes:
1. ‘ERP’, Part 9, as shown in Table 6.4 and discussed in 6.5. It introduces EEO
principle for the first time in the employment arena. It covers all sectors to ensure
that all workers are afforded EEO and prohibits discrimination based on personal
characteristics,
2. Ensures equal rates of pay for work of equal value and specifies the exceptions to
discrimination;
3. Employers, under Section 76, must develop and maintain a policy to prevent
sexual harassment in consistent with the national policy guideline;
89
4. ‘ERP’, Part 12 introduces for the first time a new provision that sets minimum
social protection for workers. This is in terms of termination for reasons beyond
their control under the diverse pressures of globalization, which the employer
must prove under Section 107;
5. The setting of Mediation Service under ‘ERP’ Part 20 would demand specific
skills on the part of Mediators since the grievances and disputes point of entry is
Mediation Services. It replaces conciliation under the ‘Trade Dispute Act’. For
the first time, all workers, including unorganized workers, (comprising about 70%
of total workforce) will access the new Mediation Services for the resolution of
any employment grievances (Ministry of Labour, 2006).
Under these provisions, enforcement officers have to enforce and monitor that the
implementation of the legislation. For that matter, the Ministry of Labour will need
capable manpower to ensure that the additional responsibilities are well executed.
6.5 EQUAL EMPLOYMENT OPPORTUNITY (EEO) PRICIPLES IN THE
‘ERP’.
The ‘Employment Act’ did not provide for EEO. ‘ERP’, Part 9 is a new provision that
provides for EEO. It prohibited discrimination based on personal characteristics. This
includes ethnicity, gender, age, disability, marital status, employment status, economic
status, social standing, ensuring equal rates of pay for work of equal value and specifies
exceptions to discrimination. These provisions were not part of any previous labour
legislation. This part of ‘ERP’ has adopted the prohibited grounds of discrimination
under Chapter 4 – Bill of Rights of Fiji’s ‘1997 (Amendment) Constitution’, ‘Human
Rights Commission Act’ 999 and ILO Conventions 100 and 111.
The ‘Employment Act’ failed to consider “Sexual Harassment” issues. The ‘ERP’,
Section 76 introduces "Sexual Harassment" and the policy that obligated employers to
take measures to eliminate the practices in workplaces in consistent with national policy
guideline. As shown in Table 6.4, “Sexual Harassment” cases would be settled in the
Employment Relations Tribunal and Court or the Human Rights Commission compared
90
to the past, which were referred to the Judiciary i.e. Magistrate Court and High Court.
The onus is on the employer that must take reasonable and necessary steps to prevent
‘Sexual Harassment’.
TABLE 6.4: EEO PRINCIPLES
OLD ACTS NEW ERP (Part 9) � No provision in previous labor
legislation but had to be proved in Court should there be any allegation. Therefore, the onus was on individuals to take cases of such nature through civil means and via Fiji Human Rights Commission.
� Section 75 - ethnic origin, color, place of origin, gender, sexual orientation, birth, primary language, economic status, age, disability, HIV/AIDS status, social class, marital status (including living in a relationship in the nature of a marriage), employment status, family status, opinion, religion or belief are prohibited grounds of discrimination.
� Section 76 - employers must develop a policy regarding sexual harassment and ‘ERB’ may develop a national policy guideline on the advice of Minister for Labour
� Section 77 - employers must not refuse to recruit a worker under available Job Description, offer less favorable terms and condition of work, discriminately terminate employment and impose retirement age (discriminate).
� Section 78 - employer(s) must not refuse the same rates of remuneration for substantially similar qualifications in substantial similar circumstances, including gender.
Source: Created by the Author, (2008).
Other new features under ‘ERP’, includes;
1) Section 77(1) that introduces restrictions on employers to discriminate
employment applications,
2) Section 78 disallows discrimination against payment of different rates of
remuneration for the same job with same qualification or circumstances of
work on grounds of gender,
3) Section 81 provides the recovery of unpaid wage balance,
4) Section 80 sets the instruments to determine and implement equal pay,
5) Section 84(4) also introduces a progressive provision, which promotes the
inclusion of at least 2% disabled are employable in workplaces employing
50 or more workers. The word may is used that confirms that the
discretion rests with employers, and non-mandatory.
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6.6 ‘CONTRACTS FOR SERVICE’ AND ‘CONTRACT OF SERVICE’
The ‘Employment Act’ and ‘ERP’ omitted the term ‘contract for service17’in the
interpretation provisions as in the case of ‘contract of service’. This is a weakness in
both the legislation. There is a tendency that all stakeholders would be confused that may
create disputes. This could be avoided if the term is clearly defined in the legislation.
However, this provision allows the Employment Relations Tribunal and or Court may
determine ‘contract for service’ – a relationship between an employer and a Sub-
contractor where there is no existence of the master and servant relationship.
Whilst the interpretation provision of the ‘Employment Act’, Section 2 defined "contract
of service" as ‘… any contract, whether oral or in writing, whether express or implied, to
employ or to serve as an employee for any period of time or number of days to be
worked, or to execute any task or piece work or to perform for wages any journey and
includes a foreign contract of service.’ ERP, Section 4 defines the same as, ‘… a written
or oral contract, whether expressed or implied, to employ or to serve as a worker whether
for a fixed or indefinite period, and includes a task, piecework or contract for service
determined by the Tribunal as a contract of service’.
Both definitions confirm that the ‘contract of service’ establishes the existence of the
relationships between the master, as an employer, and the servant, as an employee. For
any ‘contract of service’ to exist, there must be a master and servant relationship at any
duration of time to perform work in reciprocity for wages. The only difference between
the definitions is the extension of the authority of the Employment Relations Tribunal
under the ‘ERP’, which may determine a ‘contract for service’ as a ‘contract of service’.
This is similar to the Arbitration Tribunal, under the ‘Trade Dispute Act’, but only if
connected with a dispute that could not be settled during conciliation. The trade dispute is
accessible to Arbitration Tribunal or through the judicial system. But must be taken up by
the grieving party.
17 Applies to all independent contractor engagements the purpose of which to ensure that only bona fide independent contractors are engaged on a contract for service.
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‘ERP’, Part 5 deals with ‘contracts of service’ - covering foreign contracts and the
declaration of the Employment Relations Tribunal and Court, specifies the circumstances
in which such contracts may be oral or written and how they subsist and are terminated.
This was also provided in the ‘Employment Act’, which demarcated the provisions of the
two forms of contract (oral and written) but into three parts. ‘ERP’, however has
consolidated into Part 5 but divided into ‘Division 1 – General’ and ‘Division 2 – Written
Contract of Service’ as shown in Tables 6.5(a) and 6.5(b) respectively.
TABLE 6.5(a): LEGISLATED “CONTRACT OF SERVICE”
OLD ACTS (EA) NEW ERP PART IV—CONTRACTS OF SERVICE
GENERALLY � Section 15 - Contracts can be oral and written
(similar to ‘ERP’, Section 23) � Section 16 - Duty of employer to provide work
except through act of God and must pay (similar to ‘ERP’ Section 24).
� Section 18 - requires employer to pay outstanding wages to Labor Officer or District Officer that differ to ‘ERP’, Section 25)
� Section 19 - No wages payable during imprisonment (similar to ‘ERP’, Section e 26).
PART V—ORAL CONTRACTS OF SERVICE � Section 23 - contract is presumed indefinite
provided fixed (similar to features of ‘ERP’, Section 28)
� Section 24 - notice may be in writing. � Section 26 - Piecework or task payable at the
end of the month or task. � Section 27 - Wages payable according to
contract (similar to features of ‘ERP’, Section 32)
� Section 28 – grounds for summary dismissal either oral or in writing.
� Section 29 - Right to wages on dismissal for lawful cause (similar to features of ‘ERP’, Section 34)
PART 5 — CONTRACTS OF SERVICE Division 1- General � Section 23 - Contracts can be oral or written � Section 24 - employer to provide work, except
through act of God and must pay according to the contract even if failed
� Section 25 - employer must pay outstanding wages to the nominated person on death of worker
� Section 26 - wages not payable on lawful detention or imprisonment of worker
� Section 28 – contract is presumed indefinite provided fixed (similar to features of ‘Employment Act’, Section 23)
� Section 29 – notice must be in writing � Section 31 – Piecework or task payable as
agreed and terminable at the end of the task � Section 32 – Wages payable according to
contract (similar to features of ‘Employment Act’, Section 27)
� Section 33 – Summary dismissal (similar to features of ‘Employment Act’, Section 28 except that employer must provide reasons in writing)
� Section 34 – Right to wages on dismissal for lawful cause
Source: Created by the Author, (2008).
Oral contracts can be made for work done on daily basis where wages are payable at the
end of each days work or for a period of up to a month including tasks or piecework.
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Table 6.5(a) showed similar18 features between the provisions of ‘Employment Act’ and
‘ERP’. Any ‘contract of service’ is terminable at its expiry date or upon workers death.
This is where all outstanding dues and other workers assets are paid or delivered to the
dependants, including repatriation. This intends to allow dependants to receive immediate
financial relief through direct payment of outstanding dues.
TABLE 6.5(b): LEGISLATED WRITTEN “CONTRACT OF SERVICE”OLD ACTS (EA) NEW ERP
PART VI—WRITTEN CONTRACTS � Section 31 - Application and interpretation
of written contracts. � Section 32 - Contracts to be in writing: for
the period or in excess of 6 months, conditions that differ from customary in the district for similar work; or a foreign contract of service
� Section 33 - Family not bound by contract. � Section 35 - Attestation of contracts
(embodied in ‘ERP’, Section 37). � Section 36 - Medical examination is
compulsory before attestation of contract (differ with ‘ERP’, Section 38).
� Sections 40 & 41 - Termination of contract by expiry, death other circumstances (similar to ‘ER’P, Clause 41 but with consent of Labor Officer or District Officer)
� Section 42 – 44 - Employers obligation on repatriation.
� Section 45 - Period of service on re-engagement.
Division 2 - Written Contracts � Section 36 - Application and interpretation (similar to
‘Employment Act’, Section 31 that applies to written contracts & CA and excludes apprenticeship scheme under Training and Productivity of Fiji Act).
� Section 37 - Contracts to be in writing: (a) In excess of a month; (b) Foreign contract; (c) expatriates, and collective agreements (differ with ‘Employment Act’, Section 32)
� Section 38 - contract must be signed and, as a minimum, contain the particulars set out in Schedule 2
� Prohibits and constitutes an offence where a contract specifies that medical exam is required to comprise HIV/AIDS screening, or screening for sexually transmitted diseases or pregnancy.
� Section 39 - Transfer to other employer must be with the consent of the worker (similar to ‘Employment Act’, Section 39)
� Section 40 - Termination of contract grounds; (a) by the expiry of the term for which the contract was made; or (b) by the death of the worker. (2) Does not limit legal claims (3) Repatriation of a deceased worker (similar to ‘Employment Act’, Section 40 except for repatriation).
� Section 41 - Termination of contract in other circumstances: (a) unable to fulfill the contract; or (b) sickness or accident
Source: Created by the Author, (2008).
Although both the legislation was based on the same idea, there is the shift of
responsibility. ‘ERP’, Section 25 has shifted the responsibility to the employer from the
18 Similar features includes: ‘Employment Act’, Section 13 and ‘ERP’ Section 22; ‘Employment Act’, Section 15 and’ ERP’, Section 23; ‘Employment Act’, Section 16 and ‘ERP’, Section 24; ‘Employment Act’, Section 19 and ‘ERP’, Section 26; ‘Employment Act’, Section 22 and ‘ERP’, Section 27; Section 23 and ‘ERP’, Section 28; ‘Employment Act’, Section 24 and ‘ER’P, Section 29; ‘Employment Act’, Section 25 and ‘ERP’, Section 30; ‘Employment Act’, Sections 26 and ‘ERP’, Sections 31; ‘Employment Act’, Section 27 and ‘ERP’, Section 32; and ‘Employment Act’, Section 29 with ‘ERP’, Section 34.
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Labour Officer and District Officer under the ‘‘ERP’, Section 25’, Section 18. This
however, does not limit the role of the Labour Officer or Inspector to investigate the
authenticity of workers written authority under ‘ERP’, Section 46(3), only if doubted by
the employer.
The ‘Employment Act’, Section 28 and ‘ERP’, Section 33(1) provides another form of
termination of ‘contract of service’ through summary dismissals. ‘ERP’, Section 33(2)
requires that the employer must provide reasons for termination and the worker be
accorded an opportunity to be heard. The ‘Employment Act’, Section 28, did not provide
this, as another difference. ‘ERP’, Section 29(2), requires that the notice must be in
writing in contrast to notice may be given orally or in writing in ‘Employment Act’,
Section 24(2), as shown in Table 6.5(a).
Table 6.5(b) comparatively identifies minimal similarity. This includes, the application
and interpretation of written contracts, in accordance with ‘Employment Act’, Section 31
and ‘ERP’, Section 36. ‘Employment Act’, Section 35 and 42 have been embodied under
‘ERP’, Sections 37, 40 and 41 accordingly. ‘Employment Act’, Section 39 is similar to
‘ERP’, Section 39. The provision for monitoring and properly supervision of the local
labour market under ‘Employment Act’, Section 35 for the 3rd party’s intervention to
attest foreign contracts is retained under ‘ERP’, Section 37(1)(b). The termination of
contract under expiry of terms and through death is also similar in ‘Employment Act’,
Section 40 and ‘ERP’, Section 40. Except for the inclusion of repatriation provision
under ‘ERP’ as employer’s obligation provided under ‘Employment Act’, Section 42.
There are more differences in Table 6.5(b) compared to Table 6.5(a). This includes, the
reduction of the term and the compulsion under ‘ERP’, Section 37(1)(a). It provides that
all contracts exceeding a month must be in writing, in contrast to 6 months or more in the
‘Employment Act’, Section 32(1)(1). The ‘ERP’ now legitimises collective agreements as
a written contract compared to the provisions of the ‘Employment Act’. Secondly, whilst
the ‘Employment Act’, Section 34 failed to specify necessary particulars to define the
forms and contents of contracts, ‘ERP’, Section 38 refers to Schedule 2 that provides the
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basis of the contract format and contents. Thirdly, the compulsory medical examination
before attestation of contract and recruitment under ‘Employment Act’, Section 36 must
exclude HIV/AIDS screening, or screening for sexually transmitted diseases or
pregnancy, under ‘ERP’, Section 38(2). Lastly, the ‘Employment Act’, Section 41
required the consent of the Attesting Officer (Labour Officer or District Officer) whereas
‘ERP’, Section 41 has shifted this responsibility to the parties for mutual agreement
6.7 PROTECTION OF WAGES
‘ERP’, Part 6 safeguards payment of wages at set intervals, effected authorized
deductions and provided relevant details required under legislation, with some variation,
in contrast to ‘Employment Act’, Part VII. ‘ERP’, Part 6 consolidates ‘Employment Act’,
Part VII and the entire ‘Wages Council Act’, the provisions of which are separately
mentioned in Tables 6.6(a) and 6.6(b) respectively.
TABLE 6.6(a): PROTECTION OF WAGES - GENERAL
OLD ACTS (EA & WCA) NEW ERP PART VII—PROTECTION OF WAGES (EA) � Section 50 - Payment of wages: employers
shall be fined and or imprisonment if found guilty for failing to pay wages on demand, in kind rather than authorized by legislation etc… and provision of written statement containing the particulars as prescribed, and written authority for payment to family.
� Section 51 - Authorized deductions from wages: (similar to ‘ERP’, Section 47)
� Section 52 - Remuneration other than wages: shall render illegal any agreement or contract for payment in kind money wages, as remuneration
� Section 53 - Interest on advances prohibited (similar to’ ERP’, Section 49)
PART III—RECORDS of Section 102 � Record of wage payments to be kept by
employers for at least 3 years
PART 6 — PROTECTION OF WAGES
Division 1- General � Section 43 - wages may be paid by cheque on
demand or through a bank, or credit union account (differ to ‘Employment Act’, Section 50)
� Section 44 - employer must, when paying, provide the worker with a written or electronic statement
� Section 45 - employer must keep a record for all its workers inline with Part III of Sect. 102 of ‘Employment Act’ with variations but for 6 yrs.
� Section 46 - Payment to worker’s family may only effect when authority is submitted in writing
� Section 47 - Authorized deductions from wages by legislation or written authority
� Section 48 - workers may, via collective agreement or contract, receive other benefits as legally approved.
� Section 49 - Interest on advances shall not be charged by employers
Source: Created by the Author, (2008).
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‘ERP’, Part 6, Section 43 maintains the modes of payment of wages during and at the end
of contract period, in contrast to ‘Employment Act’, Section 50(1)(c), a similarity. ‘ERP’,
Section 43 - 46 provides workers wages is payable by cheque and the whole or part may
be paid into the workers bank or credit union account through an agreement between the
parties, compared to ‘Employment Act’, Section 50. ‘ERP’, Section 44 requires
employers to provide either a written or electronic statement in contrast to written
statement only in the ‘Employment Act’, Section 50(2), as a difference. Employers, such
as USP are providing electronic wage statements to its workers whilst some are still using
written statements, such as the public sector and state owned enterprise such as Pacific
Fishing Company Ltd.
TABLE 6.6.1: REQUIREMENT OF WAGE STATEMENTS
PARTICULARS/ LEGISLATION (‘EmploymentAct’) OLD
NEW(‘ERP’)
1 Name � �2 Employment Number �3 FNPF Number � �4 Tax Identification Number �5 Job Classification � �6 Normal hours of work � �7 Overtime Hours worked � �8 Normal rate of pay � �9 Overtime rate of pay � �
10 Wage Period � �11 Gross Earnings � �12 Allowance like payment � �13 Deduction details � �14 Net wages � �15 Any other prescribed details. �
Source: Created by the Author, (2008).
Table 6.6.1 shows the wages and related details of workers prescribed by the legislation.
Whilst the ‘Employment Act’, required 12 particulars, ‘ERP’ requires 15, as the
difference but has 12 similar particulars. Another difference is the placement of the
requirement under ‘ERP’, Section 45 where wages and time records provided for
employers to keep and maintain for 6 years. This was introduced under the ‘Employment
Regulation’ of the ‘Employment Act’ and maintained for at least 3 years with minor
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variations, as shown in Table 6.6(a), as other differences. The similarity is the
accessibility of these wages and time records upon request of the enforcement officers.
‘ERP’, Section 46 allows workers to authorize any person to uplift worker’s earnings but
the onus is on the employer to verify the authenticity of the written authority. Any
incorrect payment renders the employer liable to pay lost wages, a similar feature to
‘Employment Act’, Section 50(4). ‘ERP’, Section 47 has extended the authorized
deduction list with the inclusion of medical scheme, credit union and social obligations
etc, which then provided maximum deductions not more than 50% and further loading of
25% for housing loan in contrast to 50% ceiling in the ‘Employment Act’, Section 51, as
the difference.
TABLE 6.6(b): PROTECTION OF WAGES – WAGES COUNCILSOLD ACTS (EA & WCA) NEW ERP
CHAPTER 98: WAGES COUNCILS ACT � Section 3 - Minister to establish wages
councils.� Section 4 – provision for the making of
wages council order. � Section 5 – Minister, after consulting LAB
can vary, establish or revoke wages council order.
� Section 7 - General provisions as to commissions of inquiry (omitted in ERP and refers to Section 51).
� Section 8 - Council to fix remuneration and holidays by proposing to Minister.
� Section 9 - Effect and enforcement of wages regulation orders.
� Section 13 - Records and notices be kept in English.
Division 2- Wages Council � Section 50 – Ministers power to establish wages
council (similar to Wages Council Act, Section 3) � Section 51 - Making of wages council order (similar
to Wages Council Act, Section 4 except for the exclusion of referral to Commission of Enquiry)
� Section 52 - Variation and revocation of wages council order (similar to Wages Council Act, Section 5)
� Section 53 - General provisions as to wages councils (similar to Wages Council Act, Section e 6)
� Section 54 - Power to fix remuneration where the Wages Councils retains the original jurisdiction under Wages Council Act, Section 8 (therefore similar).
� Section 55 - WRO minimum statutory remuneration, similar to Wages Council Act, Section 9.
� Section 56 - Not ices (similar to Wages Council Act, Section 13, which should be kept in English)
Source: Created by the Author, (2008).
‘ERP’, Section 50 establishes Wages Councils similar to the provisions of the entire
‘Wages Council Act’ to regulate remuneration and conditions of employment in certain
industries, as discussed in 4.4.2.5 (Chapter 4). ‘ERP’, Sections 50 – 56 consolidates the
provisions of the ‘Wages Council Act’ as discussed in items 4.4.2.5 (Chapter 4), with
some variations. The role of the Wages Councils under the provision of the ‘ERP’, as
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mentioned in Table 6.6(b) is the same as the provision of the ‘Wages Council Act’.
However, the ‘ERP’ did not consider the setting up of an independent institution staffed
with qualified personnel and tasked to advice Wages Councils (Narsey, 2006). This
would provide a solid basis for consistent decision making which the Wages Councils
very much lacks over the past. The requirement under ‘Wages Council Act’, Section 9 for
employers to keep such records in English is maintained under ‘ERP’, Section 56.
6.8 HOLIDAYS AND LEAVE
‘ERP’, Part 7 consolidates ‘Employment Act’, Section 102 - Employment Regulation,
Part IV – annual holiday and ‘Public Holiday Act’. At the same time, this part creates
new provisions on sick and bereavement leave entitlements that are separately compared
in Tables 6.7(a) and (b), respectively.
TABLE 6.7(a): HOLIDAYS AND LEAVE - ANNUAL
OLD ACTS (EA & PHA) NEW ERP PART IV—ANNUAL HOLIDAYS (Employment
Regulations – Section 102) � Section 11 - Employer to give paid annual holidays � Section 12 - Paid annual holidays (similar
entitlements but differ in unauthorized absent for more than 36 working days with ‘ERP’, Section 59)
� Section 13 - Termination of employment (similar to ‘ERP’, Section 60)
� Section 14 - Continuity of employment (similar to ‘ERP’, Section 61 except for 7 days)
� Section 15 - Paid holiday to be given within certain period: not later than 6 months after each year of service or employers consent.
� Section 16 - Wages in respect of annual holiday to be paid in advance
� Section 17 - Records of annual holidays (covered in ‘ERP’, Section 45 as compared in Table 6.7(a).
� Section 18 - Agreement contrary to Regulations is null and void
PART 7 — HOLIDAYS AND LEAVE � Section 58 - Employer to give paid annual
holidays must give to workers (similar to ‘Employment Act’ Section 11)
� Section 59 - Paid annual holidays entitles 10 working days and abolishment of entitlements if unauthorized absent for more than 20 working days
� Section 60 - Holiday pay on termination calculated on pro-rata basis (similar to ‘Employment Act’, Section 13)
� Section 61 - Continuity of employment only if within a month from termination is re-engaged.
� Section 62 - Paid holiday to be given within certain period with the consent of the employer
� Section 63 - Wages in respect of annual holiday to be paid in advance (similar to ‘Employment Act’, Section 16)
Source: Created by the Author, (2008).
The provision provides statutory paid holiday entitlements and recognizes the differences
between public holidays based on the observance of national or religious anniversaries,
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special (sick and bereavement) leave and annual holidays. Similar provisions includes:
‘Employment Act’, Section 11 with ‘ERP’, Section 58; ‘Employment Act’, Section 13
with ‘ERP’, Section 60; ‘Employment Act’, Section 16 with ‘ERP’, Section 63. ‘ERP’,
Section 59(1) is similar to Section 12(1) of ‘Employment Act’, Section 12(1) where
employers must provide 10 working days annual leave after every year of service.
However, the difference is the tendency that this entitlement may be forfeited if a worker
abstains from work for more than 20 working days without medically certified as
provided in ‘ERP’ Section 59(2) in contrast to 36 days in the proviso of ‘Employment
Act’, Section 12(1). Another difference is in relation to ‘Employment Act’, Section 14
where within 7 days from the date of termination of employment, the worker is re-
engaged in the same undertaking in contrast to within a month under ‘ERP’, Section 61.
Here, the condition in which the workers employment is considered continuous, to the
advantage of the worker. ‘Employmeny Act’, Section 15 restricted the given of holiday
not later than 6 months after each year of service whereas ‘ERP’, Section 62 gives this
responsibility to the parties to decide the best time to be utilized but upon the employers
consent.
TABLE 6.7(b): HOLIDAYS AND LEAVE - PUBLIC
OLD ACTS (EA & PHA) NEW ERP CHAPTER 101: PUBLIC HOLIDAYS
ACT� Section 2 - Certain days to be holidays
where public 10 appointed holiday(s) and any other ordered by the Minister by notification in the Gazette (similar to, but not all, to ‘ERP’, Section 64)
� Section 6 - Appointment of special public holidays (similar to ‘ERP’, Section 66)
PART 7 — HOLIDAYS AND LEAVE � Section 64 - Declared public holidays 12 days as
compared in Table 6.8.1. � Section 66 - the Ministers authority to appoint special
public holidays (similar to ‘Public Holiday Act’, Section 6)
� Section 67 - All public holidays are paid (new) � Section 68 - 10 days sick leave pay (new) � Section 69 - 3 days bereavement leave pay (new)� Section 70 - Record of leave and entitlement must be
part of ‘ERP’, Section 45 as compared in Table 6.7(a). Source: Created by the Author, (2008).
‘ERP’, Section 64 increases annual holidays to 12 days paid public holidays provided
those holidays fall on a workers normal working day in contrast to 10 days under the
Schedule of the ‘Public Holiday Act’. The ‘Public Holiday Act’ was silent on the
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provision of payment, whereas ‘ERP’, Section 67(3) specifies payments that are
conditional upon the workers attendance at work immediately before and after the public
holiday. This condition is in line with the existing provisions of Public Holidays, in the
various wages regulation orders that are established under ‘Wages Council Act’.
‘ERP’, Sections 68 and 69 introduces new provisions relating to special leave such as
sick and bereavement leave respectively. Such provisions entitle workers 10 working
days sick leave annually after completing more than 3 months service provided medically
certified. As such, fake medical certificate renders both the Medical Practitioner and the
worker liable for criminal offence under ‘ERP’ Section 68(4).
Consequently, upon completion of 3 months service, workers are entitled to 3 days paid
bereavement leave annually. All these conditions were enjoyed in certain sectors that
were protected through the operations of collective agreements and wages regulation
orders. However, the application of this provision was limited to the 10 industries
specified in the wages regulation orders similar to ‘ERP’.
6.9 MATERNITY LEAVE
‘ERP’, Part 11 safeguards the payment of wages for female workers during pregnancy
(including confinement period) in consistent with best practice. ‘ERP’, Section 101
maintains women entitlements to abstain from work for 84 consecutive days on account
of maternity leave. However, conditional upon the certificate provided by a registered
Medical Practitioner or registered Nurse on full wages for the first 3 births and half
wages thereafter, as shown in Table 6.8. The quantum differs from $5.00 daily allowance
under ‘Employment Act’, Section 75. The second difference is where ‘ERP’, Section
101(1) allows consecutive leave days, before or after confinement, in contrast to the 42
days pre-confinement and the other 42 days post-confinement periods in ‘Employment
Act’, Section 75(1), (2) respectively. Thirdly, ‘ERP’, Section 101(6) provides additional
3 months after the expiry of maternity leave for birth complication but without pay, a new
provision (‘ERP’, Section 104).
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Another new provision is the right of women to retain occupation in the same position
when returns to work (‘ERP’, Section 101(7)). Pregnancy must not be a ground for
termination, except after the expiry of the 84 consecutive days (‘ERP’, Section 104(3)).
TABLE 6.8: MATERNITY LEAVEOLD ACTS (EA) NEW ERP
PART IX—MATERNITY PROTECTION � Section 74 - Right to abstain from work 42 days before
and after confinement and $5 daily allowances, provided certified. (Differ with ‘ERP’, Section 101)
� Section 75 - Payment of maternity allowance within 7 days (differ to every pay days under ‘ERP’).
� Section 76 - Payment of allowance on death of female to nominated person (similar to Section 78).
� Section 77 - Loss of maternity allowance for failure to notify employer via medical certificate.
� Section 78 - Payment of allowance to nominee in writing (similar to ‘ERP’, Section 102).
� Section 79 - Restriction on dismissal during allowance period due to pregnancy & birth complication without any penalty provision.
PART 11 — MATERNITY LEAVE � Section 101 - Rights of women on
maternity leave of 84 consecutive days, full pay for the 1st 3 births and half pay thereafter at anytime provided certified, retains her employment & position.
� Section 102 - Payment of outstanding dues on death to nominated person
� Section 103 - Payment of wages to nominee (similar to Section 46 as compared in Table 6.6(a)).
� Section 104 - pregnancy is not a ground for termination, additional 3 months (without pay – Section 101(6)) for birth complication on employer’s discretion.
Source: Created by the Author, (2008).
6.10 HOURS OF WORK
The old ‘Employment Act’ did not provide for normal hours of work. ‘ERP’, Part 8
introduces this new provision that regulates the maximum normal ‘daily’ and ‘weekly’
hours of employment. It is applicable to all those actively involved in any economic
activity in the labor market, as shown in Table 6.9. However, it does not apply to those
employed in managerial or executive positions and those on individual contracts (‘ERP’,
Section 73).
‘ERP’, Section 72 formalizes and fixes the normal hours of work for a 6- day’s week as
48 hours and 45 hours to spread over in a 5-days week. Similar to 6.8, these conditions
were enjoyed only in certain sectors through collective agreements and wages regulation
orders.
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TABLE 6.9: HOURS OF WORK
OLD ACTS NEW ERP � No provision in the principal acts but specific
to certain sectors limited to the coverage of specific collective agreement and wages regulation orders. For examples, refer to Chapter 4, 4.4.2.5 for list of wages regulation orders.
PART 8 — HOURS OF WORK � Section 72 - Hours of work not to exceed 48
hours for 6 days work and 45 hours for 5 days work, excluding overtime (new provision).
� Section 73 - Does not apply to individual contracts, managerial & executives (new provision).
Source: Created by the Author, (2008).
6.11 EMPLOYMENT OF CHILDREN
‘ERP’, Part 10 and ‘Employment Act’, Part VIII prohibits work that is likely to harm the
health, safety and morals of children. It establishes the circumstances and ages at which
children can work and to confer rights and provide protection on children who are
vulnerable to exploitation. The difference is the introduction of stronger prohibitions in
the ‘ERP’ compared to similar provisions of the old legislation. For the first time, ‘ERP’,
Section 91 introduces all prohibited forms of slavery or similar slavery or forced
practices, illicit child activities, or prostitutions that is likely to harm children compared
to ‘Employment Act’, Section 57.
‘ERP’, Part 1, Section 4 defines "child" as ‘a person under the age of 18 years’, which
differs to ‘Employment Act’, Part 1, Section 2, that defined the same as ‘a person who
has not attained the age of 15 years’. However, the definition is consistent with ILO
Convention No. 182 on ‘Worst Forms of Child Labour’ discussed in 6.2.7 and 6.2.8,
respectively. Both the legislation has 15 years as an employable age, as a similarity.
However, ‘Employment Act’, Part VIII, included women and young person in the same
part, a major difference. There is no provision of young person in the ‘ERP’.
‘ERP’, Section 92 restricts employment of children under the age of 15 years compared
to under the age of 12 years, under ‘Employment Act’, Section 59. However, ‘ERP’,
Section 93 provides exceptions between the age of 13 and 15 years similar to
‘Employment Act’, Section 59 but for children of 12 and 15 years. The exception is that
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they are engaged in light work owned by family or community or similar religious
groups.
TABLE 6.10: EMPLOYMENT OF CHILDREN
OLD ACTS (EA) NEW ERP PART VIII—WOMEN, YOUNG PERSONS AND
CHILDREN � Section 59 – children less than 12 years were
prohibited from employment. � Section 60 – conditions to employ children. � Section 61 - children and young persons to be
employed in safe working environment (similar to ‘ERP’, Section 93).
� Section 62 - Children and young persons must not be employed against the wishes of parent or guardian (similar to ‘ERP’, Section 96, except the omission of young person).
� Section 63 - children must not attend to machines in industrial undertaking.
� Section 64 - children and young person’s hours that they can be employed but exclude apprenticeship contracts (similar to ‘ERP’, Section 97).
� Section 71 - Employers to record keep and maintain employment registers (similar to ‘ERP’, Section 99).
� Section 73 - parents and guardians, who permits employment in contravention of the legislation, commits an offense.
PART 10 — CHILDREN � Section 91 - worst forms of child labor is
prohibited by law (new) � Section 92 – provides minimum
employment age of 15 (similar to definition in ‘Employment Act’)
� Section 93 - children under 15 years to be employed in safe working environment (similar to ‘Employment Act’, Section 61).
� Section 94 – employed child has the right to join unions & their rights (new)
� Section 95 - employment of children are restricted under the ambit of ‘HASAWA’ (NOSHAB), (similar concern to ‘Employment Act’, Section 63 but differs in procedure)
� Section 96 – employment of children against the wishes of parent or guardian is prohibited (Similar to ‘Employment Act’, Section 62)
� Section 97 – restricted hours of children (similar to ‘Employment Act’, Section 64 except emphasizes right to education)
� Section 98 - Conditions on night employment
� Section 99. Employers of children to keep register (similar to ‘Employment Act’, Section 71)
Source: Created by the Author, (2008).
Another difference is the basis to which employment of children are restricted. Whilst
‘Employment Act’, Section 59 referred to agricultural undertaking, ‘ERP’, Section 93
refers to family, communal and religious work types. ‘Employment Act’, Section 63
restricted ‘child’ from working in industrial undertaking attending to machinery whereas
‘ERP’, Section 95 is specific to the mine and any prohibited workplace declared by the
Minister for Labour. The Minister for Labour would decide after consulting the National
Occupational Health and Safety Advisory Board (NOHSAB) under the ‘Health and
Safety and Work Act 1996’ ‘HASAWA’. The considerations would be on the basis that
the workplace is injurious to health, or hazardous, dangerous or unsuitable. This
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provision allows the legislation to compliment each other to better utilize available
resources. Another major difference is the introduction of eligibility of ‘child’ to trade
union rights, who has attained the age of 15 years, including voting right under ‘ERP’,
Section 94. This was not provided under ‘Trade Union Act’, Section 29. It provided a
person under the age of 16 years might be a member of a trade union, unless provided in
the constitution, but shall not be a voting member.
The similarity is the penalty provision for breach and the restriction of the hours of work,
if employed strictly under the conditions, though differs in quantum. ‘Employment Act’,
Section 62 and ‘ERP’, Section 96 are similar in providing parental approval on
employment of children. Another similarity is where employers are obliged to keep and
maintain separate registers for submission to relevant authorities when required
(‘Employment Act’, Section 71 and ‘ERP’, Section 99).
6.12 REDUNDANCY FOR ECONOMIC, TECHNOLOGICAL AND
STRUCTURAL ADJUSTMENT POLICY
The ‘Employment Act’ failed to provide a redundancy policy. ‘ERP’, Part 12, Section
107(1) introduces the redundant policies and procedure with some degree of certainty.
There is the assurance of employer’s obligation to pay compensation, in this provision,
which was not provided in the old legislation, as shown in Table 6.11.
TABLE 6.11: REDUNDANCY POLICIES
OLD ACTS NEW ERP � No provision in the principal acts
but specific to certain sectors limited to the coverage of specific collective agreement, WRO and policies.
PART 12 — REDUNDANCY FOR ECONOMIC, TECHNOLOGICAL OR STRUCTURAL REASONS � Section 107 – employers to consult workers, reps &
Permanent Secretary not less than 30 days of contemplated date (new)
� Section 108 - Redundancy pay of not less than a weeks wages for each completed year of service (new)
Source: Created by the Author, (2008).
However, very limited sector workers were protected through collective agreements and
similar redundancy policies. ‘ERP’, Section 107 obliges employers to provide
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information, for contemplating redundancy, not less than 30 days before effecting
redundancy procedures. The period of not less than 30 days renders the parties the right
to be consulted. But must be initiated by the employer, who has the authority over the
undertaking. The basis of redundancy is limited to economic, technological, structural or
similar nature that the legislation allows.
‘ERP’ Section 108(1) for the first time introduces the minimum redundancy pay formula.
This provision entitles the worker not less than a week’s wages for each completed years
of service. Any agreement reached between the parties regarding redundancy pay must
not be less than that provided in this provision. However, there is nothing stopping the
employer from paying over and above the stipulated minimum.
6.13 EMPLOYMENT GRIEVANCES
The ‘Trade Dispute Act’ failed to provide individual employment grievance procedure.
‘ERP’, Part 13, Section 109 introduces the individual grievance procedures pursuant to
which workers may pursue, within 6 months from the date on which the action allegedly
occurs (Section 111(2)). ‘ERP’, Section 110 also introduces that all employment
contracts must include grievance procedures, as pre-requisite. However, the parties must
agree to the procedure, the template of which is provided under ‘ERP’ Schedule 4.
‘ERP’, Section 111 introduces grievances may all, first be pursued in person or may be
assisted by a representative (except for trade union). Second step may be referred for
Mediation Services set out in ‘ERP’, Part 20, Division 1. The ‘Employment Act’, Part III,
Section 8 and 9, provided the reporting of grievance to enforcement officer’s for
investigation under the powers conferred upon them, free of charge. Another option was
through civil claim, but on the griever’s expense. The decision rests with the griever, as
shown in Table 6.12. The new provision qualifies the unorganized sector workers, who
were covered by ‘Employment Act’, Part III (70% of the total labour force were excluded
from the ‘Trade Dispute Act’), now have equal rights with the organized sector workers.
The organized workers consists of the remaining 30%, whose grievances are equally
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accessible to the dispute mechanism, as shown in Figure 6.1(B) (as discussed in 6.18).
The additional provision would increase the workload of the appointed administrators.
‘ERP’, Section 110(1) specifies that the grievance must be settled under the grievance
procedure. It is a compulsory provision in all contracts and collective agreements, which
was not provided by the ‘Employment Act’. The ‘ERP’, Section 110(2)(b) also provides
Schedule 4 with a formatted template should there’s no agreed procedure. This was not in
place in the ‘Employment Act’ but was the norm and practiced in collective agreements.
However, ‘ERP’, Section 110(5) deals with grievance that concerns matters relating to
discrimination and or sexual harassment, which the griever must choose between the
procedures under this provision or the ‘Human Rights Commission Act 1999’. Not both.
TABLE 6.12: EMPLOYMENT GRIEVANCE
OLD ACTS (EA) NEW ERP PART III—APPOINTMENT, POWERS AND DUTIES OF
OFFICERS � Refer to Table 5.6 specifically for
Sections 8 & 9 or the complaint can be taken through a civil action against the employer but on the expense of the complainant, as a personal matter.
PART 13 — EMPLOYMENT GRIEVANCES � Section 110 – all employment contracts must have
grievance procedures as provided under Schedule 4 (new)
� Section 111 – Parties right to use procedures grievance procedures (new)
� Section 112 – other areas of grievance may be covered on employers consent (new)
� Section 113 - Statements privilege is provided by Mediation Services (new)
� Section 114 –employers must provide reasons for dismissal (new)
Source: Created by the Author, (2008).
‘ERP’, Section 114 provides dismissed workers the relief that all dismissals must be
justified in writing that sets out the reasons, including summary dismissals under Section
33, which was not provided under ‘Employment Act’, Part IV, Section 28.
6.14 REGISTRATION OF TRADE UNIONS
‘ERP’, Part 14 and ‘Trade Union Act’, Part III are similar that have provisions for
registration, qualification of officers and minimum requirements to be observed by trade
union in conformity with ILO Conventions No. 87 and 98, respectively. Another
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similarity is in regards to trade union formation where ‘ERP’, Section 119(2) and ‘Trade
Union Act’, Part I, Section 2(1)(13) provides that more than 6 persons can form a trade
union. This disqualifies them from being a member or officials of another trade union.
‘ERP’, Section 121 and ‘Trade Union Act’, Section 11 provides the RTU powers to call
for further particulars, again a similarity.
A difference was to protect the trade union under, ‘ERP’, Section 127(1) that disqualifies
undercharged bankrupts and non-Fiji citizen to be an officer of a trade union, which was
not, provided in the ‘Trade Union Act’. Another difference is in regards to the
registration period where ‘Trade Union Act’, Section 7(1) required the application for
registration within a month from the date of formation, which the ‘ERP’ is silent.
However, ‘ERP’, Section 120(2) gives the Registrar of Trade Union the authority to
decide within 21 days of receipt of the application. This was silent in the ‘Trade Union
Act’.
In refusal cases, ‘ERP’, Section 125(2) authorizes Registrar of Trade Union to inform the
applicants of the grounds within 7 days from the date of the decision made in contrast to
within 2 months of the date of receipt of such application under ‘Trade Union Act’,
Section 13(2). However, appeal against refusal to register a trade union is through the
Employment Relations Court within 30 days under ‘ERP’, Section 139 in contrast to
within a month of the date of the refusal or order under ‘Trade Union Act’, Section 16, a
similarity.
The Minister for Labour under ‘Trade Union Act’, Section 3(1) and (4) and ‘ERP’,
Section 116(1) and (2) appoints the Registrar of Trade Union and Assistant Registrar of
Trade Unions, a similarity. However, the ‘ERP’ provision removed the 4 members
Advisory Committee as provided under ‘Trade Union Act’, Section 3(2) and (3)
respectively. The Registrar of Trade Union and Assistant Registrar of Trade Unions may
not necessarily be public officers, a similarity in the ‘ERP’ and’ Trade Union Act’. They
must be independents as demanded by the said provision of the ‘ERP’ in contrast to the
help of the Advisory Committee under the provision of the ‘Trade Union Act’.
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TABLE 6.13: TRADE UNION REGISTRATIONOLD ACTS (TUA) NEW ERP
PART III—REGISTRATION � Section 6 - Registrar of Trade Union
(Registrar) to record, keep and maintain a register for all registered Trade Unions (similar to ‘ERP’, Section 118).
� Section 7 - all Trade Unions must apply within a month after formation for registration.
� Section 8 - Application for registration must be signed by at least 7 members with similar requirements as per ‘ERP’, Section 119.
� Section 9 - (Registrar) to register Trade Unions in accordance with ‘Trade Union Act’ with no time limit as in ERP, Section 120.
� Section 10 - Certificate of registration must be issued to all registered Trade Unions as evidence similar to ‘ERP’, Section 126.
� Section 11 - Power of (Registrar) to call for further particulars for the purpose of registration, similar to ‘ERP’, Section 121.
� Section 12 - Power of (Registrar) to require alteration of name of Trade Unions based on opinion, compared with ‘ERP’, Section 122 (difference).
� There is no provision for affiliation but provision for amalgamation also must be backed by secret ballot under ‘Trade Union Act’’, Section 43, similar to ‘ERP’, Section 123.
� Sections 54 and 55 are similar to ‘ERP’, Sections 129 & 128 respectively.
� Section 14 – grounds that authorize (Registrar) to cancel or suspend registration (similar to ‘ERP’, Section 133).
� Section 15 - suspended registered Trade Unions, officials and members looses (similar to ‘ERP’, Section 134).
� Section 16 – recourse against refusal to register through appeal within a month to Court of Appeal.
PART 14 — REGISTRATION OF TRADE UNIONS
� Section 116 - Minister appoints Registrar of Trade Union (Registrar), Assistant Registrar of Trade Union (Assistant Registrar) & other officers (similar to ‘Trade Union Act’’, Section 4).
� Section 118 - Duty of (Registrar) (similar to ‘Trade Union Act’’, Section 6)
� Section 119 – all Trade Unions must apply for registration after formation of any more than 6 members, providing constitutions etc. with no time limit (compared to ‘Trade Union Act’’, Section 7)
� Section 120 – (Registrar) must decide within 21 days after receiving the application
� Section 121 (Registrar) has powers to call for further particulars for the purpose of registration
� Section 122 & 123 & 124 - Alteration or change of name of Trade Unions, affiliation or amalgamation must be supported by more than 50% through secret ballot (differ to ‘Trade Union Act’’, Section 12)
� Section 126 – (Registrar) to provide Certificate of registration to all registered Trade Unions, similar to ‘Trade Union Act’’, Section 10.
� Section 127 – sets criteria for officers of Trade Unions
� Section 128 – (Registrar) and Trade Unions members may inspect accounts kept by Trade Unions whenever requires, similar to ‘Trade Union Act’’, Section 55.
� Section 129 – where Trade Unions are required to provide (Registrar) particular related to annual returns, similar to ‘Trade Union Act’’, Section 54.
� Section 133 – Authority to cancel or suspend registration (similar to ‘ERP’, Section 14).
� Section 134 – suspended Trade Unions ceases to enjoy rights, immunities, and privileges as well as officers & members as the consequence (similar to ‘Trade Union Act’’, Section 15).
� Section 139 - Appeal against decisions of (Registrar) within 30 days to Employment Relations Tribunal
Source: Created by the Author, (2008).
The Registrar of Trade Union may now allow a registered trade union to change its name
(‘ERP’, Section 122), or amalgamate (‘ERP’, Section 123), and get affiliation (‘ERP’,
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Section 124). This must be supported in a secrete ballot upon the consent of more than
50% of the total number of its voting members. However, ‘Trade Union Act’ differs
where the consent of not less than two-third for the change of name (‘Trade Union Act’,
Section 33). The requirement under ‘ERP’ is similar with at least 50% for amalgamation
(‘Trade Union Act’, Section 44). The introduction of the provision for affiliation is now
recognized by the new legislation. In essence, the Registrar of Trade Union, under the
‘ERP’, must ensure that the members must consistently decide democratically on the 3
issues, which must be considered along with other legal conditions.
6.15 RIGHTS AND LIABILITIES OF TRADE UNIONS
Both ‘ERP’, Part 15 and ‘Trade Union Act’, Part IV enables trade union to function fully
as social partners and as legal entities capable of incurring legal obligations. Firstly,
‘ERP’, Section 143 and ‘Trade Union Act’, Section 25 are similar in providing that no
legal proceedings may be instituted against a registered trade union, an officer or a
member for an act done relating to the contemplation or furtherance of an employment
dispute. Secondly, ‘ERP’, Section 144 and 146 and ‘Trade Union Act’, Section 26 both
provide conferred privileges of a corporate entity to registered trade union, as shown in
Table 6.14. This may hold trade unions real or personal property, enter into contracts, sue
and be sued, do any other thing a person can legally do and do any other thing necessary
for the purpose of its constitution. Thirdly, ‘ERP’, Section 147 and ‘Trade Union Act’,
Section 28 provides that only the Court can order any trade union to pay money in civil
proceedings may therefore be recovered by the sale of property belonging to the union.
Fourthly, ‘ERP’, Section 146 and ‘Trade Union Act’, Section 27 also provides that trade
unions are liable to entered contract, except unenforceable that enables Court to entertain
legal proceedings instituted with the object of directly enforcing or recovering damages
for breach of any of the prescribed agreements.
However, the only difference is that ‘ERP’; Section 137 has given trade union legal right
to access to workplaces, which were not provided by ‘Trade Union Act’. Even though not
legislated, unions were accessible to workplaces when specified in the collective
110
agreements. However, this provision under the ‘ERP’ does not specify any time
limitation. Nonetheless, all could be sorted out in the collective agreements.
TABLE 6.14: RIGHTS AND LIABILITIES OF TRADE UNION
OLD ACTS (TUA) NEW ERP PART IV—RIGHTS AND LIABILITIES
� Section 24 - Trade Unions not unlawful but has registered purpose (similar to’ ERP’, Section 142).
� Section 25 - Immunity from civil suit against Trade Unions, officers or members but in certain cases (similar intention with ‘ERP’, Section 143 but differ in coverage – certain cases).
� Section 27 – Trade Unions is liable to any contract entered (similar to ‘ERP’, Section 146).
� Section 28 – Court under Criminal Procedure Code can order any Trade Unions to pay money in civil proceedings by and against Trade Unions (similar to ‘ERP’, Section 147 but through different institutions).
PART 15 — RIGHTS AND LIABILITIES OF TRADE UNIONS
� Section 142 - Trade Unions not unlawful (similar to ‘Trade Union Act’, Section 24)
� Section 143 - vary immunity from civil suit (similar intention to ‘Trade Union Act’, Section 25)
� Section 144 - authorizes registered Trade Unions as corporate body
� Section 145 – Allows Trade Unions to access to workplaces but on employers consent (new)
� Section 146 - Liability in contract (refer ‘Trade Union Act’, Section 27)
� Section 147 – Employment Relations Court can order any Trade Unions to pay money in civil proceedings by and against Trade Unions
Source: Created by the Author, (2008).
6.16 COLLECTIVE BARGAINING
The ‘Trade Union (Recognition) Act’ failed to provide any provision for collective
bargaining. ‘ERP’, Part 16, Sections 148 - 166 introduces this new provision that set the
central concept of ‘good faith’ in collective bargaining. Thus revokes the ‘Trade Union
(Recognition) Act’, as shown in Table 6.15. Chapter 4, 4.4.2.3 discussed the role of
‘Trade Union (Recognition) Act’, the intention of which provided for the recognition of
trade unions, only then the trade unions were recognized. The recognition was for the
purpose of collective bargaining, as the majority or minority trade union.
Therefore, formation of a trade union under ‘Trade Union Act’, Section 2(1) was the 1st
step. The 2nd step was registration under Section 6, and seeking recognition was the 3rd
step. The employer had the right to refuse. Only then, the trade union must provide
evidence that it had recruited over 50% as majority (Section 3(1), (4), (8)) or 30%
(Section 4(2)) as minority union (Section 5) of the employer’s workforce as its members.
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TABLE 6.15: COLLECTIVE BARGAININGOLD ACTS (TURA) NEW ERP
TRADE UNIONS (RECOGNITION) ACT � Section 3 - Recognition of registered Trade
Unions as majority with more than 50%members
� Section 4 - Recognition of 2 or more minority Trade Unions (30%) where there is no majority Trade Unions
� Section 5 - Employer may voluntarily recognize minority Trade Unions for the purpose of collective bargaining
� Section 6 - Determination of membership through production of records to Permanent Secretary, Labor Officer or Labor Inspector required to be kept under ‘Employment Act’ & ‘Trade Union Act’.
� Section 7 - Refusal by employer to grant recognition must be referred to Permanent Secretary and must prove as per Section 6, above.
� Section 8 – Permanent Secretary will only issue compulsory recognition order after satisfy with Section 7 whose decision is final
� Section 9 – Permanent Secretary can not re-determine within 6 months from refusal date
� Section 10 – decision to recognize Trade Unions stay during the 1st 6 months from recognition date. Trade Unions may apply for re-determination after 6 months ending not more than 2 months
� Section 11 – Employers may apply for certain workers be excluded from recognition
� Section 14 – Minister for Labour to order strike or lock-out unlawful for recognition issue
� ‘Trade Union (Recognition) Act’ and all its provisions (above) have been repealed by ‘ERP’, Clause 265.
PART 16 — COLLECTIVE BARGAINING � Section 149 – duty of ‘good faith’ in bargaining for
CA requirement from Trade Unions and employer � Section 150 - Duty of ‘good faith’ does not require
concluded collective agreement � Section 151 – either party may seek and provide
information with each other in bargaining for collective agreement
� Section 152 – Minister for Labor may direct ERAB to develop code of ‘good faith’ & Employment Relations Tribunal may determine
� Section 153 – any party may initiate bargaining � Section 154 - any party may initiate bargaining
where there is no collective agreement etc… � Section 155 - any party may initiate bargaining for
variation of collective agreement etc… � Section 156 - any party may initiate bargaining for
collective agreement with expiry dates etc… � Section 157 - any party may initiate bargaining by
giving notice in writing � Section 158 – secret ballot with majority Trade
Unions members to support multiplicity of parties seeking coverage of single collective agreement
� Section 159 employer may request consolidation of bargaining if received more than 1 notice from more than 1 Trade Union
� Section 160 – collective agreement may specify effective enforcement and expiry dates or the date the last party signs is the effective dates.
� Section 161 - Continuation of collective agreement after specified expiry date but not exceeding 12 months
� Section 162 – collective agreement format and content
� Section 163 - Deduction of union fees may be included in collective agreement but through the consent of workers
� Section 166 - Copy of collective agreement must be registered within 28 days
� All new provisionsSource: Created by Author, (2008).
‘ERP’, Section 120 provides that by virtue of being a registered trade union gives that
union the right to be recognized, even though it is silent. This provision also provides:
1) Core requirements of the duty of ‘good faith’ in collective bargaining (Divisions 2
and 3); provide a Code of ‘good faith’ (Section 152);
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2) Recognize the view of the parties in ‘good faith’ to collective bargaining (Section
151);
3) Promote orderly collective bargaining to enter into collective agreements
(Sections 149, 153 and 154),
4) Any matter for variation of collective agreement’s (Sections 150, 155,156); and
5) Consultation with workers and trade union about any matters that affect them.
‘ERP’, Sections 149 - 152 demands the parties in collective bargaining to deal with each
other, in ‘good faith’. The characteristics of ‘good faith’ includes core values of respect,
honesty, mutual trust, confidence and fair dealings who are obliged not to mislead or
deceive the other party(s), and conform to the provisions of the “Code of Good Faith
2007”. Ignoring ‘good faith’ responsibilities under the “Code of Good Faith 2007” is
considered in breach of the legislation. The grieving party is at liberty to raise concerns of
any perceived breaches to the other party immediately. Mediation Services is always
available should they agree to disagree. Although the ‘Trade Union (Recognition) Act’
was only focusing on collective bargaining, the ‘ERP’ now shift to collective bargaining
in ‘good faith’, in recognition of the person in authority, once again fulfilling the ratified
ILO Convention No. 98.
‘ERP’, Section 153, 156 and 157 provides that either party to initiate collective
bargaining if there isn’t an existing collective agreement. In case of existing collective
agreement, either party must not initiate bargaining earlier than 60 days, before the date
on which the collective agreement expires and 120 days before the date on which the last
applicable collective agreement expires. Sections 158 and 159 provides for circumstances
where there is a multiplicity of parties seeking a single collective agreement. In this case
the employer(s) may within 30 days after receiving the 1st notice, request all the trade
unions concerned to consolidate the bargaining initiated by each notice. But must be
supported by simple majority of the trade union through separate secrete ballot.
‘ERP’, Sections 160 – 166 provides that collective agreement becomes effective on the
dates specified in the collective agreement, and may provide one or more of its provision
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have effect at different dates before or after the enforcement date. ‘ERP’, Section 160
provides that if the date is not specified, the date on which the duly authorized
representative of the last party, signs collective agreement is the enforced date. ‘ERP’,
Section 161 provides continuation of collective agreement for a period not exceeding 12
months after an expiry date. ‘ERP’, Section 163 provides deduction of union dues must
be effected with the consent of trade union members and paid in accordance with the
manner agreed to by the trade union. All collective agreement must be submitted for
vetting and registration (Section 166), which is the only similarity as provided in ‘Trade
Dispute Act’, Part VI, Section 34.
6.17 EMPLOYMENT DISPUTES
‘ERP’, Part 17 varies the procedures for the resolution of disputes under ‘Trade Dispute
Act’, Part II as shown in Table 6.16. All individual employment contracts must contain a
grievance procedure under ‘ERP’, Part 13, as discussed in 6.13, which was silent in the
provisions of the ‘Employment Act’, ‘Trade Union (Recognition) Act’ and ‘Trade
Dispute Act’. ‘ERP’, Part 17, Section 168 requires that all employment contracts must
also include procedures for settlement of disputes, a new provision, which was not
covered under the ‘Trade Dispute Act’ as mentioned in Table 6.16, a difference.
Similar to ‘Trade Dispute Act’, Section 3 only the grieving party may initiate the
procedure under ‘ERP’, Section 169 with reduced time limitation from 12 months to 6
months, as a difference. The time limitation is also introduced in the case of individual
grievances under ‘ERP’, Part 13, Section 111(2). The dispute settlement procedure is
shown in Figure 6.0(B).
It must be noted that the “12 months” time limitation was introduced through Decree No.
27/1992, Section 5(a)(i) as part of 1990’s controversial labour reform discussed in
(Chapter 4). ‘ERP’, Section 169(2) requires that the dispute be reported in a specified
manner, which Sub-section 3 further requires the reporting party within 3 days to provide
a copy to each party to the dispute. Although the earlier requirement is similar to ‘Trade
114
Dispute Act’, Sections 3 and 4, the later requirement was not time line specific (‘Trade
Dispute Act’, Section 4(2)), a similarity.
TABLE 6.16: EMPLOYMENT DISPUTES
OLD ACTS (TDA) NEW ERP Part II – PROCEDURE FOR
SETTLEMENT OF DISPUTES � Section 3 – Required any grieving
party to report in writing & specify criteria under 3(2) & a copy must be furnished with the other party without delay.
� Section 4 – provides steps to be taken by the PS may reject, refer back or accept with no time limitation (differ with ‘ERP’, Section 170)
� Section 5 - Use of conciliation process for the settlement of trade disputes
� Section 6 - Reference of trade disputes to Arbitration Tribunal by Permanent Secretary on advice of Minister for Labor.
� Also refer to Figure 4.2 of Chapter 4 regarding dispute settlement procedures.
PART 17 — EMPLOYMENT DISPUTES � Section 168 – provides that all contracts must include
dispute settlement procedure (new) � Section 169 – dispute report must be provided with the
other party within 3 days (variation to ‘Trade Dispute Act’, Section 3)
� Section 170 – provides Permanent Secretary to decide within 30 days of receiving report & must inform the parties with reasons for rejection or acceptance. Refer dispute to Employment Relations Tribunal for interpretation, application & operation of contract or otherwise Mediation Services (differ to ‘Trade Dispute Act’, Section 4, 5 & 6)
� Section 171 – Employment Relations Tribunal decision to be made without delay within 60 days from hearing completed
� Section 173 – grieving party right of appeal (differ to ‘Trade Dispute Act’, Section 27 – interpretation & 28 – variation as compared in Table 6.20)
� Also refer to Figure 6.0(A) for dispute settlement mechanism.
Source: Created by the Author, (2008).
Amongst the steps available under ‘Trade Dispute Act’, Section 4(1) the Permanent
Secretary would take one or more steps: (a) accept, (b) reject, (c) referred the matter
back, (e) appoint a conciliator, referred for conciliation as authorized by the Minister for
Labour, or (f) caused an investigation or Board of Inquiry (‘Trade Dispute Act’, Section
7). In contrast, the Permanent Secretary must decide on any one of the first 2 steps under
‘ERP’, Section 170(2) within 30 days from the date of receiving the report (‘ERP’,
Section 170(1)), a similarity.
Individual grievances discussed in 6.13 provide mediation process as the next step should
the grievance procedure under the contract fails. Likewise in the case of disputes, must
first be referred to mediation, under ‘ERP’, Section 170(4)(b), which can only then be
referred to the Employment Relations Tribunal (‘ERP’, Section 170(5)).
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FIGURE 6.0: EMPLOYMENT GRIEVANCE AND DISPUTE SETTLEMENT
MECHANISM UNDER THE ‘ERP’
Rejected
Accepted
Appeal granted & refer the Dispute to each other
Necessary only if refused by Employment Relations Tribunal
Source: Ministry of Labour, (2007), modified and consolidated by the Author, (2008).
This is not provided in the ‘Trade Dispute Act’, but conciliation, as a difference. Referral
to the Tribunal is not new, just renaming of the institution, which must decide with 60
days after completion of the hearing (‘ERP’, Section 171) in contrast to within 28 days of
referral under ‘Trade Dispute Act’, Section 23, as a difference. ‘ERP’, Section 172 and
‘Trade Dispute Act’, Sections 24 and 25 provides that the decision can be retrospective
but must not be in conflict with any other law. However, any party to the decision has the
Registered Trade Union or employer to submit claim to each other (A)
Workers to raise grievancewithin 6 months (B)
Dispute reported to Permanent Secretary(within 6 months & decide within 30 days).
Mediation Services (other matters – A) & B
Employment Relations Tribunal
PARTIES
RIGHT
TO
APPEAL
Employment Relations Court
Court of Appeal
SupremeCourt
Interpretation and application & operation
of employment contract - A (Legal)
Other matters – B (Non-
legal)
116
right to appeal to the Court, under ‘ERP’, Section 173(2) and the High Court under
‘Trade Dispute Act’ as the recourse, a similarity.
6.18 STRIKES AND LOCKOUTS
‘ERP’, Part 18 introduces and recognizes the duty of ‘good faith’ that does not preclude
all industrial actions, including strikes and lockouts as legal. It ensures that Mediation
Service is the avenue available to solve disputes where there is a threat of strike or
lockout. ‘Trade Dispute Act’, Part III failed to recognize ‘good faith’ principle, as shown
in Table 6.17. ‘ERP’, Section 175 provides that balloting is a prerequisite to strikes
provided 21 days notice is given prior to the ballot nominated date and Section 176
provides that 28 days notice is a prerequisite to lockouts.
TABLE 6.17: INDUSTRIAL ACTION – STRIKES AND LOCKOUTSOLD ACTS (TDA) NEW ERP
PART III – ADHERENCE TO AGREEMENTS AND AWARDS
� Section 8 – Minister for Labor has the authority to declare strike or lock out unlawful where procedures have not been exhausted
� Section 9 – Minister for Labor may decide on strike or lockout unlawful where awards, agreements, etc. are still in force
� Section 10 - sympathy and certain other strikes or lockouts to be unlawful where it appears to Minister for Labor that strikes and lockouts not related to dispute & industry.
� Section 13 - expulsion of members who refuse to take part in unlawful strike or lockout are prohibited.
PART 18 — STRIKES AND LOCKOUTS � Section 175 – all strikes must be by notice of secret ballot to
Registrar of Trade Union 21 days before ballot nominated date & must be supported by more than 50% Trade Union members, as prerequisite
� Section 176 – All lockout must take place provided 28 days notice issued by employer to Trade Union & Permanent Secretary, as prerequisite & valid for 6 months
� Section 177 - strikes or lockouts unlawful in contravention of ‘ERP’
� Section 178 - strikes or lockouts on grounds of health and safety upon exhaustion of dispute procedure under ‘HASAWA’ (new)
� Section 181 – Employment Relations Court may order discontinuance of strike or lockout in essential service or public interest
� Section 182 – workers are not entitled to wages during lawful lockout except where lockout is unlawful
� Section 183 - record of strikes and lockouts must be kept by employer & furnish Permanent Secretary within a month a copy
� Section 184 – person refusing to continue or take part in unlawful strike or lockout shall be prohibited from expulsion, penalized or deprived of any right as a member
Source: Created by the Author, (2008).
The notice is valid for 6 months, in both cases. However, ‘Trade Dispute Act’, Part III,
Section 8 provided that strikes and lockouts were legal provided that the prescribed
117
disputes procedures were exhausted. ‘Trade Dispute Act’, Section 9 also provided legal
grounds when awards or collective agreements expired, a similarity. ‘ERP’, Section 177
sets grounds for justified strikes and lockout including justification based on health and
safety grounds, subject to exhaustion of procedures set out in ‘HASAWA’, a new
provision.
‘Trade Dispute Act’, Sections 8, 9, 10 and 11, empowered the Minister for Labour to
declare strikes and lockouts unlawful where workers must return to work. The authority
to order discontinuance was introduced by the 1990’s labour reforms and in particular
Decree No. 27/1992, Section 8. However, the said decree was declared null and void as
discussed in Chapter 4. In contrast to ‘ERP’, Section 181, it is the Court that will issue a
declaration if the Minister for Labour may apply and justify on the grounds of the public
interest.
Another difference under ‘ERP’, Section 183 mandated the employer to keep detail
records of the strike or lockout and must forward in the prescribed form to Permanent
Secretary within a month after the end of the industrial action, which was not provided in
the ‘Trade Dispute Act’. However, a similarity is ‘ERP’, Section 184 and ‘Trade Dispute
Act’, Section 13 prohibited the expulsion of members if they refuse to take part or
discontinue from taking part in an unlawful industrial action.
6.19 PROTECTION OF ESSENTIAL SERVICES, LIFE AND PROPERTY
‘ERP’, Part 19, Sections 186 and 187 and ‘Trade Dispute Act’, Part IV, Section 16
describes the circumstances in which essential service workers, as listed in Schedule 7
and 2 respectively, may take industrial action, a similarity. Both provisions require either
party to give notice to the other parties within 28 days for both strikes and lockouts,
(Trade Dispute Act’, Section 16(1)(b); ‘ERP’, Section 186(1)(b); ‘ERP’, Section
187(1)(b)) are similar, as shown in Table 6.18. ‘Trade Dispute Act’, Section 16(1)(b)
required the notice be given to the Permanent Secretary and employer, in case of strike,
and Permanent Secretary and trade union, in case of lockout. In contrast ‘ERP’, Section
186(1)(b), requires the notice be given to the employer and Permanent Secretary, in case
118
of strike whilst Section 187(1)(b), requires the lockout notice to be served to the Registrar
of Trade Union and the trade union, a difference.
‘ERP’, Section 189 and ‘Trade Dispute Act’, Section 14 provides prevention of essential
services that found to be in breach of their employment contract, commits an offence, a
similarity. Another similarity is the responsibility, under ‘ERP’, Section 188 and ‘Trade
Dispute Act’, Section 15 where employer(s) engaged in essential service to provide a
copy of a prescribed list of essential services and posted in convenient places to be read
by all workers. Failure of which constitutes an offence.
TABLE 6.18: ESSENTIAL SERVICES
OLD ACTS (TDA) NEW ERP PART 1V — PROTECTION OF ESSENTIAL SERVICES, LIFE AND PROPERTY � Section 14 – deprive the public and
endanger human lives is prohibited & breach of service affecting essential services
� Section 15 – every employer in essential services to post notice in schedule
� Section 16 - strike or lock out in an essential service in pursuance of trade dispute shall be (a) reported under Section 3, (b) 28 notice, (c) signed, (d) date, (e) delivered to parties
PART 19 — PROTECTION OF ESSENTIAL SERVICES, LIFE AND PROPERTY
� Section 186 - strikes in essential services must be supported by more than 50% by secret ballot and 28 days notice to be served to employer & PS
� Section 187 – lawful lockouts in essential services if 28 days notice given by employer to Registrar of Trade Union & Trade Unions
� Section 188 - Not ices (similar to ‘Trade Dispute Act’, Section 15)
� Section 190 – Permanent Secretary must ensure that Mediation Service is provided where notice of strike or lockout is issued
� Section 191 – Minister for Labor to refer strike or lockout in essential services to Employment Relations Court where there is no sign of settlement
Source: Created by the Author, (2008).
‘ERP’, Section 190 provides the Permanent Secretary’s obligation to ensure Mediation
Services are provided immediately to avert industrial action, a service that was not
provided by the ‘Trade Dispute Act’. However, the need of urgency is a similarity due to
the public interest and need of the essential service. As such, the Minister for Labour is
empowered under ‘ERP’, Section 180 to declare strike(s) or lockout(s) unlawful. ‘ERP’,
Section 181 and 191(2) requires any party thereafter could seek the Employment
Relations Court for a discontinuance order. ‘ERP’, Section 191(1) authorizes the Minister
for Labour may refer the dispute to Employment Relations Court, only if satisfied that
119
despite the exhaustion of the prescribed procedures. As such, there seems to be no sign of
settlement and the continuance will likely jeopardize the livelihood of the nation,
economy or public safety, a new addition.
6.20 EMPLOYMENT GRIEVANCE AND DISPUTE INSTITUTIONS
‘ERP’, Part 20 establishes Mediation, Employment Relations Tribunal and Employment
Relations Court. In contrast, ‘Trade Dispute Act’, Part V provided the Board of inquiry
and Arbitration Tribunal whilst Part II, Section 4(1)(d) provided conciliation, as
discussed in 6.18 and shown in Table 6.16. Whilst both the legislation provides 3
institutions each, they differ, except for the Arbitration Tribunal and Employment
Relations Tribunal. It’s just the change of title with specific responsibilities, under ‘ERP’,
Section 211 that included any matters under the ‘Workmen’s Compensation Act’ and any
appeal against any notice issued under the ‘HASAWA’.
Another difference is the replacement of conciliation with Mediation Service and where
Employment Relations Tribunal and Court are mandated to consider Mediation Service
as the first port of call for all matters that come before them. For the same reason that
they (Tribunal and Court) may direct parties to Mediation and furtherance if appropriate.
This does not necessarily mean that Mediation Service is compulsory in all cases, but
‘ERP’, Section 200 provides that all mediation options must be exhausted before
proceeding to the next step, as provided under ‘ERP’, Sections 193 and 198. For that
reason the Ministry of Labour must establish an independent Mediation Unit, resourced
with suitably qualified manpower that must abide by the ‘Code of Ethics of Mediators
2007’ established under ‘ERP’, Section 199. Mediators are barred from giving evidence
in Employment Relations Court or other proceedings under ‘ERP’, Section 197. It
provides that information brought into or created for the mediation is not admissible into
any Court, or before any person acting judicially.
However, ‘ERP’, Clause 194(4) disallows legal practitioners to represent any party
during Mediation Service, which was salient in the principal ‘Trade Dispute Act’ but was
introduced by Decree No. 27/1992 during the 1990’s labour reform.
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TABLE 6.19: EMPLOYMENT GRIEVANCE AND DISPUTE RESOLUTION
INSTITUTIONS
OLD ACTS (TDA) NEW ERP PART V – CONSTITUTION OF BOARDS OR TRIBUNALS PROCEEDINGS AND
AWARDS. � Section 20 – Arbitration Tribunal shall
consist of a sole Permanent Arbitrator or more or assisted by one of more assessors appointed by Minister for Labour
� Section 21 - Appointment of Permanent Arbitrator by President
� Section 23 - Award to be made without delay within 28 days from referral
� Section 24 - Award or collective agreement effected by Permanent Secretary, Arbitration Tribunal or otherwise may have retrospective effect
� Section 27- any party to the dispute and Permanent Secretary or Minister for Labour may apply to Arbitration Tribunal for determination of an Award
� Section 28 - No variation of Award without application of Minister for Labour within 9 months of publication
� Section 30 – Arbitration Tribunal may regulate its proceedings
� There was no specific provision for institution in the ‘TDA – Cap 97’, except for Arbitrational Tribunal.
� Arbitration Tribunal is down graded to Employment Relations Tribunal, but the Permanent Arbitration Tribunal position and salary is pegged to the level of High Court Judge as Employment Relations Court Judge under the ‘ERP’.
PART 20 — INSTITUTIONS Div. 1- Mediation Services: 193 – 201 (new) � Establishment, procedures of Mediation Services &
appointment of Mediators Div. 2- Employment Relations Tribunal � Section 202 - Establishment of Employment
Relations Tribunal as subordinate of Employment Relations Court (replacing Arbitration Tribunal)
� Section 203 – members; Chief Tribunal & other members
� Section 204 – appointing authority; judicial services commission & Minister for Labour
� Section 205 – Qualifications of Chief Tribunal � Section 206 - Term of office; 3 yrs � Section 210 - Functions of Employment Relations
Tribunal to assist employers & reps and workers & rep trade union
� Section 211 - Employment Relations Tribunal list of jurisdiction
� Section 212 – Employment Relations Tribunal has power to order compliance of the parties
� Section 216 – Employment Relations Tribunal procedure is subject to ‘ERP’
� Section 217 – Employment Relations Tribunal may refer a question of law to Employment Relations Court for its opinion
� Section 218 - A party may apply to Employment Relations Tribunal to have the proceedings transferred to Employment Relations Court for hearing and determination
Div. 3 - Employment Relations Court: 219 – 225 � Establishment, jurisdiction, power & appointment
of judges. Div. 5 – Appeals: 239 – 245 � From Permanent Secretary, Registrar of Trade
Union, Minister for Labor, Employment Relations Tribunal & Employment Relations Court
Source: Created by the Author, (2008).
Table 6.19 shows a new provision, except for Employment Relations Tribunal, just the
renaming of Arbitration Tribunal and extension of roles similar to the Magistrate Court.
However, except for Mediation Service, other institutional services of Employment
Relations Tribunal and Court, which was not provided under ‘Trade Dispute Act’ were
provided by the Judiciary through Magistrate Court for any civil claim and High Court
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for judicial reviews, including any matters under the ‘Workmen Compensation Act’ and
‘HASAWA’.
The status of the Arbitration Tribunal is down graded but its role expended similar to the
Magistrate Court, as a difference. ‘Trade Dispute Act’, Section 21 stipulated that the
Permanent Arbitrator “…shall be qualified for appointment as a Judge of the Supreme
Court or is a person with extensive experience in economics or industrial relations”
whilst ‘ERP’, Section 203(1) states that the Chief Tribunal must be a legal practitioner (at
least have 7 years of practice) preferably in employment relations, another difference.
The dispute mechanism under the provisions of ‘Trade Dispute Act’ commenced from
reporting under Section 3, if accepted under Clause 4 may be referred to Board of inquiry
or conciliation. The next step from conciliation, under Section 6 is Arbitration, High
Court and Court of Appeal. On the other hand ‘ERP’, Section 200 considers Mediation
Service as the first port of call. The next step is Employment Relations Tribunal under
Section 194(5) and may proceed to the Employment Relations Court under Section 218.
The last step is the Court of Appeal under Section 245.
6.21 OFFENCES
‘ERP’, Part 21 consolidates and prescribes offences and penalties for breaches of the
provisions of the legislation to encourage compliance with fair labour practices in
contrast to offences under various provisions of the revoked legislation as shown in Table
6.20.
Penalties that impose fines under the ‘ERP’ have been increased substantially in contrast
to the provisions of old legislation. The vast increase is seen as a deterrent to possible
contradictions and at the same time intends to reflect modern labour practices that
differentiate the levels of fines imposed for individual(s) and corporation(s). For
example; under ‘ERP’, Section 247 where any employer is found guilty of failing to pay
wages commits an offence and liable on conviction – (i) for individual(s) to be fined not
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exceeding $20,000.00 or imprisonment not exceeding 5 years or both; or (ii) for
corporation to be fined not exceeding $100,000.00.
TABLE 6.20: OFFENCES
OLD ACTS NEW ERP � Offenses under various
provisions of ‘Employment Act’, ‘Wages Council Act’, ‘Trade Union Act’, ‘Trade Dispute Act’, ‘Trade Union (Recognition) Act’ and ‘Public Holiday Act’.
� ‘Employment Act’, Section 12 - willfully delay or obstruct officer is liable to a fine not exceeding $200 and not exceeding $10 per day for continuing offence
PART 21 — OFFENCES � Section 246 - delay or obstruct officer liable to a fine not
exceeding $10,000 or to a term of imprisonment not exceeding 12 months
� Section 247 – failure to pay wages (i) for an individual, to a fine not exceeding $20,000 or to a term of imprisonment not exceeding 5 years or both; or (ii) for a corporation to a fine not exceeding $100,000
� Section 248 - failure by employer to refuse worker’s property is liable to a fine not exceeding $5,000.
� Section 249 - worker who defraud employers is liable to a fine not exceeding $5,000, or to a term of imprisonment not exceeding 2 years or both
� Section 251 – for misuse of money or property of a TU is a finenot exceeding $20,000 or to a term of imprisonment not exceeding 4 years or both
� Section 256 - General penalty (a) for individual, to a fine not exceeding $10,000 or to a term of imprisonment not exceeding 2 years or both; (b) for a company or corporation or TU, to a fine not exceeding $50,000; and (c) disqualify from holding a post as an officer of a TU for 5 years from the date of conviction, where relevant
Source: Created by Author, (2008).
6.22 MISCELLANEOUS
‘ERP’, Part 22 and ‘Trade Dispute Act’, Part VI comparatively empowers the Minister
for Labor to make regulations and fix penalties, as similarities, as mentioned in Table
6.21. ‘ERP’, Section 265 makes provisions for repulsion of the 6 old legislation, amended
provisions of the ‘Workmen Compensation Act’ and ‘Sugar Industry Act 1984’. It makes
effect of the legislation in contrast to all collective agreements to be registered under
‘Trade Dispute Act’, Section 34, a differences.
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TABLE 6.21: MISCELLANEOUS
OLD ACTS (TDA) NEW ERP PART VI — MISCELLANEOUS � Section 34 - where CA and all relevant
amendments to be registered by Permanent Secretary
� Section 38 - Any person or organization that commits an offence under this part is liable to a fine of $500 and to a term of imprisonment of 12 months or both.
PART 22 — MISCELLANEOUS � Section 258 - Removal of liability for interfering with
a person’s business � Section 263 - offences and fixed penalties are set out
in Schedule 8 � Section 265 – repeals ‘‘Employment Act’, ‘Wages
Council Act’, ‘Trade Union Act’, ‘Trade Dispute Act’, ‘Trade Union (Recognition) Act’ and ‘Public Holiday Act’ & amend ‘Workmen Compensation Act’ and ‘Sugar Industry Act 1984’.
Source: Created by the Author, (2008).
6.23 CONCLUSION
The ‘ERP’ still maintain some labour policies from previous labour legislation that’s
discussed in Chapter 4. It however, introduces new ones that provides a legal framework
and at the same time promotes citizen’s welfare and prosperity through;
(a) The creation of fair minimum labour standards and to build productive
employment relationships amongst the key parties. This is a modern approach
with the emphasis of fairness and productivity. In essence, the minimum labour
standards intend to be fair and productive to all and should not be seen as biased.
In the old labour legislation, both the employers and trade union are generally
considered powerful, which was regulated to ensure that those powers are not
abused. In so doing, help to prevent and eliminate all forms of discrimination,
abuse and exploitation in Fiji’s labour market. One extreme is the right of the
employer to dismiss workers, which the ‘ERP’ seeks reasons that were not
provided in the ‘Employment Act’. The other extreme is the authority of the union
to go on strike, which must seek members mandate through balloting, which was
not provided for in the ‘Trade Dispute Act’, to name one.
(b) Regulate the relationship and encourage bargaining in ‘good faith’ as effective
prevention and efficient settlement of labour disputes, which the ‘Trade Union
Act’ and ‘Trade Dispute Act’ failed to address. The old legislation merely
provided the dispute settlement mechanism without considering the best effective
model, which was becoming defective with backlogs and rife in deadlock cases.
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(c) Establish the employment relation’s machinery’s and institutions, which allows
all labor cases to be heard in these institutions, which the old labour legislation
failed to provide. In the old model, some issues and contraventions are considered
civil which are accessible to the judicial system and considering the backlogs,
takes ages to dispose.
(d) Encourage LMCC in ‘good faith’ in contrast to adversarial and confrontational
approaches in the old labor legislation;
(e) Complying with international obligations and giving effect to Fiji’s ‘1997
(Amendment) Constitution’ as oppose to the controversial reforms of the 90’s, as
discussed in 4.6.
(f) The title is another major difference when the new legislation title ‘Employment
Relations Promulgation’ a modern approach in an un-elected Government
compared to the industrial and employment relations phenomenon of ‘Acts’ –
‘Employment Act’, ‘Wages Council Act’, ‘Trade Union Act’, ‘Trade Dispute
Act’, ‘Trade Union (Recognition) Act’ and ‘Public Holiday Act’.
(g) A major similarity is that the ‘ERP’ and all previous labour legislation have been
administered under the responsibility of the Minister for Labour.
However, the major differences are the introduction of new provisions that brings new
concepts and policies as highlighted in each part of the ‘ERP’.
This Chapter has critically evaluated the ‘ERP’ whereas the next chapter will examine the
research results and implications of the ‘ERP’ for future labour market and relevant
social partners concerns.
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CHAPTER 7
RESEARCH RESULTS, ANALYSIS, CRITICAL EVALUATION AND
IMPLICATIONS OF EMPLOYMENT RELATIONS PROMULGATION 2007
FOR FUTURE EMPLOYMENT RELATIONS: SOCIAL PARTNERS AND
THEIR CONCERNS
7.0 INTRODUCTION
This chapter will examine the research results and the implications of ‘ERP’ for future
industrial and employment relations’ environment with relevant social partners and their
concerns. In order to examine future implications, the chapter will examine whether the
‘ERP’ will sufficiently address the challenges of Fiji’s industrial and employment
relations emerging environment. It also draws conclusions on the likely impact of the
‘ERP’ on the industrial and employment relations’ environment; and establishes the
likely degree of ownership of the ‘ERP’ amongst social partners. Industrial and
employment relations features are tabulated in Table 7.0 along side which, identifies the
changes that have taken place from the old legislation against the new provisions in the
‘ERP.’
The discussion summarizes the strengths, and weaknesses of these features from a neutral
and variation stance and at the same time highlight the impacts to relevant social partners.
There is a shift from the two extremes to middle ground where there is continuing
discourse and dialogue in looking for commonality amongst these approaches. To
understand the implication of labour policy advancement to Fiji’s industrial and
employment relations’ environment and the paradigm shift we must evaluate the
strengths and weaknesses of the industrial and employment relation features. The
identified industrial and employment relations’ features are discussed as they are
chronologically listed in Table 7.0.
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TABLE 7.0: CRITICAL EVALUATION OF LABOUR LEGISLATION
OLD & NEW LEGISLATION Nos. FEATURES OLD ACTS NEW ERP
1 Bargain Allowed collective bargaining & silent on individual bargaining
Strongly emphasize collective bargaining in good faith. Recognizes individual bargaining (indirectly)
2 Children 15 years is employable age 15 years is employable age 3 Contract for service Not defined Not defined 4 Contract of service Defined Defined
5 Dispute & its procedure Conciliation, essential services only were accessible to the Tribunal. Another option was civil claim
Mediation Service as point of entry, Employment Relations Tribunal, Employment Relations Court
6 EEO No provision Introduced as new concept 7 ERAB / LAB LAB ERAB
8 Fundamental principles Ratified 3 core ILO Conventions Ratified the remaining 5 core ILO Conventions
9 Good faith Not provided Introduced as new concept
10 Grievance & its procedure
Report to officers under ‘Employment Act’, Section 9 apart from civil claim on the expense of the griever
Mediation service is the entry point if the parties fail to settle within 6 months
11 Holidays & leave
(1) Annual holidays was 10 days provided not absent more than 36 days
(2) Public holidays was 10 days & special
(3) Sick & bereavement leave were limited to WRO
(4) Maternity Leave was provided but not mandatory
(1) Annual holiday is 10 days provided not absent more than 20 days
(2) Public holiday is 12 days & special
(3) Sick, bereavement and maternity leaves are mandatory.
12 Hours of work Limited to WRO & CA Across the board (97%)
13 Industrial action (1) Strike as trade union tool (2) Lockout as employers tool Escalation
14 LMCC No provision Introduced as new concept 15 Powers of Officers Administer the ‘Employment Act’ Subject to abuse & reactive
16 Recognition of trade union
30% (minor) & 50% (major) membership threshold is the pre-requisite either voluntarily or compulsory
Strongly emphasize multiplicity of trade union by virtue of being registered. Registered TU is the pre-requisite
17 Redundancy No provision Introduced as new concept but strictly on the grounds of economic, technological and structural reasons.
18 Secrete Balloting Pre-requisite for strike was limited to essential service, election of office bearers & change of TU Constitution
Pre-requisite for strike, change of TU name, amalgamation of TU & affiliation of TU
19 Wages deductions 50% limit 75% ceiling including housing Source: Created by the Author, (2008) through the conceptual idea of Dr. Anand Chand.
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7.1 BARGAINING
The research found that the ‘Trade Union (Recognition) Act’ provided the trade union
recognition for the purpose of collective bargaining. However, there is no recognition
provision of individuals, except in the ‘Employment Act’, Section 9 that empowered the
Permanent Secretary and other appointed officers to enter, examine and inspect
workplaces. Although not mentioned, its empowered officers were using the same power
to investigate employment grievances lodged by individual workers. Even though
individual workers can approach their employers directly, in relation to any employment
grievance, they do not want to take that risk since there is no mention in the
‘Employment Act’.
The ‘ERP’ also fails to isolate ‘bargain’ from collectivism. Surprisingly, employers and
their association fail to register their concern in this regard. Both legislation fail to define
‘bargain’, per see. Therefore both the legislation associated ‘bargain’ with collectivism.
They silently and indirectly recognize that it is also associable with individual workers. In
this arrangement, the bargaining product is a ‘contract of service’ and collective
agreements, as discussed 7.4. A ‘contract of service’ is therefore an agreement between
individual workers and their respective employer after the process of individual
bargaining. The content of the ‘contract of service’ would be agreed upon before signing
to signify acceptance and adherence. By failing to isolate ‘bargain’ from collectivism, at
the same time also isolate the same from ‘good faith’, as discussed 7.9. As such, they also
fail to specify the party that may initiate negotiation for individual ‘contract of service’,
as the consequence. However, there is a provision for individual grievance mechanism
that is discussed in detail in 7.10.
7.1.1 Collective Bargaining
The research found that the ‘Employment Act’ and the ‘ERP’ have associated ‘bargain’
with collectivism for the purpose to conclude or revise or renew collective agreements.
The introduction of ‘good faith’ bargaining under ‘ERP’, Section 149 is the strength that
intends to eradicate adversarial and confrontational approach bargaining model. That was
the major weakness of the ‘Trade Union (Recognition) Act’. The ‘Trade Union
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(Recognition) Act’ also limited trade unions from recognition for the purpose of
collective bargaining. It also limited the trade union membership threshold to more than
50% as majority union and 30% as minority. In this concept, the pre-requisite was to get
the number (threshold) before the trade union can be granted to be the bargaining agent,
either voluntarily or compulsory. However, ‘ERP’, Part 16 allows multiplicity of
collective bargaining by virtue of being a registered trade union. FICTU strongly opposed
this multiplicity provision. It’s of the view that registered trade union would demand to
negotiate separately with the employer, which could lead to division of workers and
different sets of working conditions. Interestingly, FTUC disagree with FICTU in this
matter. It welcomes the multiplicity provision adding that membership threshold has been
against member’s representational rights. FTUC is of the view that the system should be
worker friendly and designed in such a way that workers are not denied their possibility
of bargaining, where numerical threshold is not met.
‘ERP’, Sections 153 – 159 identifies the party that may initiate collective bargaining: for
a new agreement; variation of an existing agreement; where there is no agreement; for
agreement with expiry dates; during multiplicity of parties; and consolidation of
bargaining with time limitations of 60 days. This is considered too short particularly to
the smaller trade union, those without full-time paid officials, to initiate new collective
agreement. These simplifications are not provided in the old legislation, as the weakness.
7.2 EMPLOYMENT OF CHILDREN
The research found that the ‘Employment Act’ and the ‘ERP’ are in favour of the
restricted employment of children, as discussed in 6.11 and shown in Table 6.10. They
prescribe 15 years as the employable age that allows children to be economically active,
as the strength. However, the Fijian Teachers Association believes that the employable
age should be increased to 16 years in view of the current basic education policy of 10
years where education should start from 6 years of age (Class 1) to 15 years of age (Form
4). The policy allows a child to enter the labour market beyond the age of 15 years.
Conforming to Fijian Teachers Association’s view would slightly decrease the
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unemployment rate. However, it is noted that the maintained 15 years is consistent with
ILO Convention No. 138 – ‘Minimum Age’ as discussed in 6.2.7 (Chapter 6).
‘ERP’, Section 95 provides that unless the Minister for Labour prescribes conditions,
there is no legal restriction on employment of children at night. This ruled away child
abuse and potential industrial exploitation, as the strength. The discretionary power
provided to the Minister for Labour is subject to abuse, as a weakness. ‘ERP’, Part 10,
Section 91; prohibits all forms of slavery and forced labour. This includes offering of a
child for elicit activities and even as sex workers (prostitution), as the strength. The
weakness of the ‘ERP’ when it fail to create an offence against the parent or guardian for
conniving with children to work or engage, in contrary, as provided in the ‘Employment
Act’, Part VIII, Section 73. This is the strength for ‘Employment Act’ that prohibited
parents or guardians to allow a child to be employed in contravention of any of this
provision “… shall commit an offence …” and liable for prosecution. Even the
‘Employment Act’ failed to address the connivance of children with parents to perform
prostitution, under duress, due to poverty where until now no such case has been reported
(Kaitani, 2006). Secondly, the provision (under both legislation) fails to accommodate
reality. In the case of poor and prevailing poverty situations particularly for orphanages
and school children of poor background that seeks employment during school holidays to
earn school fees.
In a report of Save the Children's Fund, it has blamed poverty as the main cause of
exposing children into child labour in Fiji “… a source of income for many poor families’
(Fiji Times, Tuesday, March 06, 2007). Another example is when school children are
employed on their own free will in the wholesale and retail industry such as supermarkets
during school holiday (Rathod, 2006; Khan, 2007).
The concern remains that despite the active labour policies, the problem of ‘child labour’
remains (Fiji Times, Wednesday, March 07, 2007).
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7.3 ‘CONTRACT FOR SERVICE’
The research found that this feature is always associated with ‘contract of service’.
However, it can be defined as any contract in the absence of the master and servant
relationship. An example is outsourcing of non-core activities or sub-contracting of
activities to the service provider for a price and the parties agree to the duration. There
are always interpretation problems amongst industrial relation social partners, which have
the potential to develop to employment grievance or industrial disputes. This can be
addressed at the face of the legislation, which both the legislation fail to adopt, as a
weakness.
7.4 ‘CONTRACT OF SERVICE’
The research found that the ‘Contract of service’ and collective agreements are well
defined as legal concepts, which has numerous fundamental requirements in all contracts
(under ‘ERP’, Section 37) period exceeding a month must be in writing. Contracts for
periods of up to a month are oral in contrast to 6 months in the ‘Employment Act’,
Section 32, as discussed in 6.6 and shown in Tables 6.5(a) and 6.5(b), respectively. The
decrease in duration from 6 months to a month is not practical, which according to
Rathod (2006) is considered too short. It is difficult for employers to assess employees
within a month. However, FEF was in favour of the concept. ‘Contract of service’ can
both be collective as well as individual. Written contracts alone acknowledge the parties
existence and it formalizes the relationships. However, employers are required to record
all written contracts, an additional obligation, but strength once recorded. Another
strength would be the potential decrease in reported cases of oral contracts from 6 months
(under ‘Employment Act’) to a month (under ‘ERP’).
Other contracts that must be in writing are; foreign contracts, as well as expatriate
contracts with maximum terms of 3 years and the requirements of which are outlined in
Schedule 2. The new requirement is the inclusion of grievance and disciplinary
procedure, as strength. The maximum review period is 3 years. In case of expatriates,
localization must be compulsory after 3 years. However, the ‘ERP’ should be specific in
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cases where family members are also engaged in a ‘contract of service’. Experience
shows that disputes arose in this arrangement, which can be proactively addressed in the
legislation.
‘ERP’, Section 24 and ‘Employment Act’, Section 16 requires employers to provide
work. Significant number of jobs is dependent on factors beyond the direct control of the
employer, for example, insufficient (product) market, lack of input (raw material) supply,
machinery breakdown, power and water disruption etc. These provisions provide
employers their obligation to provide work even when production is halted beyond their
control, in addition to unproductive hours, as discussed in 7.11. From industrial
experience, as former Cooperate Services Manager, employers built eventualities in
contracts and collective agreements to protect them, such as the utilization of the workers
in other areas other than specific job descriptions. These eventualities were normally
covered in the terms and condition of work or in the job descriptions and specifically
under the provision such as ‘any other duties as required from time to time’. Even though
it intended to confirm remuneration of workers, during normalcy and at abnormal times,
except in events during act of God, such as disasters and hurricanes etc., is costly to
employers. The eventualities can be detrimental to the workers, irrespective whether
collective or individual since there is potential of worker exploitation. This is an
advantage to employers but disadvantage to the workers.
Fiji Sugar Corporation is of the view that the requirement under ‘ERP’, Section 28 is not
at all sugar industry friendly. They engaged approximately 700 seasonal workers on each
crushing season, which ‘ERP’, Section 37 requires recruitment under written contract the
duration of which is not known during recruitment. The Sugar Tribunal sets the crushing
season after hearing the farmers and Fiji Sugar Corporation. This new provision is costly
to Fiji Sugar Corporation since the delay in deciding the crushing duration, from
recruitment date, renders the contract to be legally treated as for indefinite duration under
‘ERP’, Section 28(1). It has effect in Section 28(3) that the 700 workers are deemed to
have a new contract where notice must be given afresh every season. They consider this
provisions as a burden to the ailing industry.
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Air Pacific Ltd objected to ‘ERP’, Section 28(2) claiming that the Sub-section has far
reaching consequences particularly the re-hiring of retirees where contract must be
available on an ongoing, renewable basis for management or specialists appointed outside
union recognition. The recent trend of Pilot exodus to the Middle East has left Air Pacific
with the option to rehire retired Pilots. Their terms and conditions, including
renewability, must be between the employer and the rehired workers. This concern
further justifies the need for inclusion of individual bargaining as previously discussed in
7.1. Brain drain should be expected whenever there is political instability and curtailing
the trend is the challenge to any ruling Government and respective employers.
7.5 EMPLOYMENT DISPUTE, SETTLEMENT MECHANISM AND
INSTITUTIONS
The research found that the ‘Trade dispute’ under ‘Trade Dispute Act’ is referred to as
‘employment dispute’ in the ‘ERP’. The change is in line with the change in the title of
the legislation. As discussed in 6.18 (Chapter 6), the grieving party was required to report
the dispute within 12 months (‘Trade Dispute Act’, Section 4(1)) whereas ‘ERP’, Section
170(6) has decreased reporting duration to 6 months, as a strength. However, the
provision fail to distinguish between any disputes rather than essential services and
disputes in essential services, or matters of operational impacts to employer (that dictates
the survival of the enterprise), or matters of economic dependency to the worker (life and
death) that required some sense of urgency. It is noted that ‘Trade Dispute Act’ provided
measures for disputes in essential services.
‘ERP’, Section 170 obliged the Permanent Secretary to either accept or reject the dispute
whereas ‘Trade Dispute Act’ required the Permanent Secretary to take one or more steps
provided under Section 4(1). As such, the Permanent Secretary is no longer required to
refer the matter back to the parties or advise the parties. The ‘employment dispute’ under
the ‘ERP’, Section 4 “means a dispute accepted by the Permanent Secretary under
Section 170”. ‘ERP’, Section 170(4) requires the Permanent Secretary to either refer the
dispute to the Employment Relations Tribunal (for dispute relating to interpretation,
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application or operation of a contract) or refer the dispute to Mediation Service. ‘Trade
Dispute Act’, Section 5(1) required the Permanent Secretary to refer the matter for
conciliation, now replaced by Mediation Service. ‘ERP’, Section 170(5) provides that
exhaustion of mediation process is a pre-requisite for referral to the Employment
Relations Tribunal.
‘ERP’, Part 22 provides the establishment of the Mediation, Tribunal and Court as
institutions to settle employment grievances and disputes speedily, as the strength. The
establishment of these institutions provides procedures for the invocation of mediation
and adjudication services to resolve differences in a timely manner. The parties have
access to 3rd party when they are unable to resolve them. In this new arrangement,
Mediation Service replaces Conciliation and Employment Relations Tribunal replaces
Arbitration Tribunal under the ‘Trade Dispute Act’ whilst Employment Relations Court
takes over the role of the High Court specifically for adjudication of labour matters.
The social partners welcome these institutions with high hope that they would provide
speedy resolutions (not bogged down in the system as in the judicial system) with
minimal cost.
7.5.1 Mediation Services
The research found that the ‘ERP’ defines “Mediator” as ‘…appointed under section 193
and includes the Chief Mediator’ in a newly established Mediation Unit, resourced with
suitably qualified officials within the Ministry of Labour. Mediation process replaces the
conciliation process through the appointment of Conciliator by the Permanent Secretary
under the ‘Trade Dispute Act’. A weakness of both the old and the new legislation is their
failure to specify the duration in which conciliation and mediation to take place. The
strength of the ‘ERP’ is the clearly stipulated roles of the Mediators, which is the
weakness of conciliation. The weakness of the ‘Trade Dispute Act’ is that all disputes
were not accessible to the Arbitration Tribunal, except for essential services. A non-
essential service disputes ended in the conciliation process when the parties fail to reach a
consensus decision, (for amicable settlement or voluntarily arbitration). From experience,
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when the parties were unable to settle their dispute, they reached a ‘deadlock’ (refer to
Figure 4.2 (Chapter 4)). There is no other recourse apart from industrial action, an
adversarial and confrontational approach, as a weakness. This is addressed by the ‘ERP’,
as the strength, where not only all disputes but also employment grievances are accessible
to mediation and the Employment Relations Tribunal.
Another weakness of the conciliation is that it does not cover individual employment
grievances, which is another strength of the ‘ERP’. This window will now allow the
unorganized workforce, which constitutes 70% of the entire workforce (Parliament of
Fiji, 2006) accessible to the mechanism. This reveals that only 30% were organized and
were accessible to Conciliation, as the ‘Trade Dispute Act’s’ weakness. It must be noted
that the balance of 30% also constitutes the sugar industry workers who were covered by
the ‘Sugar Industry Act 1984’. However, the study reveals that the sugar industry
stakeholders are not at all concerned about the coverage of the industry as the Mediator
now inherits the effect of this provision. The inclusion of the sugar industry and the
unorganized sector workers is a positive sign for Fiji’s workforce as the ‘ERP’ covers
them all except for the discipline forces as a weakness. With the increase in coverage,
there will be demand for additional resources within the Ministry of Labour, which is
discussed in 7.19.
Another strength of the ‘ERP’ is that the roles, procedures, confidentiality and
settlements of mediation are clearly spelt out, which was the failure of conciliation. The
accessibility of the unorganised sectors workers would increase the workload of the
Mediators compared to conciliation. This demands the decentralization of the service to
the 3 main divisions. Their independency would very much depend on the appointed
Mediator(s) despite the demand under ‘ERP’, Section 198. The strength of the old and
new legislation is that the decision reached is a consensus one that does not allow any
provision for appeal after the consensus decision is reached and sealed. However, FEF is
of the view that given Fiji’s environment, the Mediation Service must be an objective
one.
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However, the Pacific Foundation for Advancement of Women argued that the entire
process of mediation is extremely long. Secondly, it is a repetition of the workplace
negotiations as in the case of conciliation. They further argued that the nature of
negotiations at workplace level does not change in conciliation, which they presume will
also be the case in mediation. For that reason, they are of the view that mediation be
renamed Workplace Grievance/Dispute Committee whereby the service is provided at
workplace level rather at national level. They heavily rely on the experience of the
ineffective conciliation process, conciliated by the appointed public officer. They have
not considered the requirement of appointing a ‘suitably qualified’ Mediator, under
‘ERP’, Section 193. The Mediator in this context is required to under go specific training
and development, the effective of which is yet to be tested, who will be guided by the
‘Code of Ethics for Mediators 2007’. The code specifies that mediation must be
concluded within 30 days from the 1st mediation session as a precondition for extension
or referral to the Employment Relations Tribunal. This timeline is not mentioned in the
‘ERP.
The accredited Mediators, sourced from within the Ministry of Labour, are expected to
mediate 6000 cases annually, under the new ‘ERP’ (Parliament of Fiji, 2006). This is an
increase of 4000 cases from an annual average of 2000 reported cases in previous years
(Parliament of Fiji, 2006), living room for new employment grievance issues. Among the
accredited officers are females whose primarily role to attend to ‘Sexual Harassment’
related cases (Ramagimagi, 2007).
7.5.2 Employment Relations Tribunal
The research found that the interpretation provision of the ‘ERP’ defines Tribunal as an
institution constituted under Section 202 that renamed the Arbitration Tribunal provided
under the ‘Trade Dispute Act’. The roles have been expended, similar to the roles of the
Magistrate Court but specialized to hear and adjudicate on labour related matters. This
includes the hearing of all workmen’s compensation cases under the provisions of the
‘Workmen Compensation Act’ and any appeal against any notice issued under the
‘HASAWA’. The shift intends speedy resolution whereby workers and dependents to
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receive compensation quickly. Another strength is that the institution is empowered
similar to those bestowed to Magistrate Court under the judicial system.
‘ERP’, Section 203 requires the appointment of a legal practitioner, as the Chief Tribunal
and other members who may not necessarily be legally qualified. The Chief Tribunal is
appointed by the Judicial Services Commission whilst other members are be appointed by
the Minister for Labour, under ‘ERP’, Section 204. The Chief Tribunal must be a legal
practitioner (at least have 7 years of practice) preferably in employment relations
(Parliament of Fiji, 2006). However, ‘ERP’, Section 203(3) is unclear what would
warrant the Chief Tribunal to nominate two other members to hear, with him/her, and
determine a matter and secondly, what matters would be determined by the 3 member
Employment Relations Tribunal from its jurisdiction under ‘ERP’, Section 211.
7.5.3 Employment Relations Court
The research found that the ‘ERP’ defined Employment Relations Court as the institution
created as a division of the High Court under Section 219 but specifically to deal with
labour related cases. This provision repeals the Arbitration Tribunal under ‘Trade Dispute
Act’, Part V, the status of which is down graded and the role expended similar to the
Magistrate Court. But the Permanent Arbitrator’s status and salary is pegged to the level
of High Court Judge who becomes the Court’s judge, under ‘ERP’, Section 219, which
made reference to Fiji’s ‘1997 (Amendment) Constitution’, as the strength. The
Employment Relations Court does not have its own procedures separated from the
general procedures of the High Court.
7.5.4 Provision for Appeal
The research found that the ‘ERP’, Section 239 and 240 states that any appeal against the
decision of the Permanent Secretary and Registrar of Trade Union, respectively, must be
made by way of a Notice of Motion. This must be filed with the Employment Relations
Tribunal Registry within 21 days from the date the appellant receives the decision. It will
be heard and determined by the Employment Relations Tribunal. The decision of the
Employment Relations Tribunal is now appealable under ‘ERP’, Section 242, to the
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Employment Relations Court. This provision allows the grieving party to appeal against
the decision of the Employment Relations Tribunal to the Employment Relations Court.
The provision allows the Employment Relations Tribunals decision to be scrutinized by
the Employment Relations Court through the appeal process. This provision was not
enjoyed by the parties under the ‘Trade Dispute Act’ but was limited to Section 27 and
28. They were barred from appealing against the decision but can only appeal, through
judicial review, on the point of law where the grieving party could apply for
determination and variation of the Awards.
‘ERP’, Section 241 allows the party to appeal against the Minister for Labour’s decision
to the Employment Relations Court in relation but limited to Part 18, on issues of strikes
and lockout. Part 19 relates to the circumstances in which workers or employers are
engaged in essential services.
The strength of these services, under the new ‘ERP’, is decentralized in nature to districts
and divisional levels. The conciliation and Arbitration Tribunal services were centralized
in Suva, under the old legislation.
7.6 EQUAL EMPLOYMENT OPPORTUNITY
The research found that this new Part is the strength of the ‘ERP’, which was not part of
the ‘Employment Act’, as its weakness. By virtue of accommodating and accomplishing
the fundamental human rights principles in the ‘ERP’, it is a boost to Fiji’s badly affected
labour market through brain drain. This is the impact of political instability on one part
and the advantage of offshore education, on the other. This Part (‘ERP’, Section 78)
legislates that workers are equal and employers must introduce equal pay for equal jobs
and equal terms and conditions of work etc. And there shall be no discrimination of any
form in employment matters based on personal characteristics, as the strength. Fiji
Electricity Authority totally disagrees with this provision claiming that this is very unfair
to employers. They are of the view that this provision does not suit Fiji since employment
opportunities are determined by the vacancy and they cannot afford to pay a new recruit
compared to current workers of the same qualification, which Fiji Teachers Association
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very much in favour. This provision also deters employer’s prerogative to recruitment of
preferred domestic workers based on ethnicity, religion and gender. These are some of
the prohibited grounds of recruiting workers. Therefore, the employer’s expectations and
emotions towards the house girl that looks after household cores and babies, under the
old legislation, are compromised, as a social weakness.
Place of origin is a prohibited ground for screening workers, which will certainly be a
boost to expatriates, as the strength but a weakness through the denial of locals the
employment opportunity. From experience, there is substantial and increasing number of
foreign workers in Fiji, which could be a potentially damaging window for law suits from
across the globe as the weakness. However, from the viewpoint of rapid globalization and
cross-border movement, this provision reflects the current labour market mobility trend.
This is a weakness since HIV/AIDS status is also a prohibited ground for screening
workers. Considering the alarming increase of HIV/AIDS cases from 1989, which the
health authority confirmed 219 cases by mid 2006 (Fiji Times, Thursday 27th July 2006),
19 cases alone were discovered during the first half of 2006, this provision will be
disastrous to Fiji’s population. This provision makes HIV/AIDS infected expatriates may
potentially be recruited through the guise of EEO, which will become a worrying trend.
Why should be an employer be sued from an employee who claimed to have been
infected from work when as an employer, they have the right to know medical conditions
of all workers, which the ‘ERP’, denies them? Though the incidence may be considered
rare, prevention is better than cure. This sort of incidence would be considered as investor
scare, another weakness.
7.6.1 ‘Sexual Harassment’ Policy
The research found that even though ‘ERP’, Section 76(1) intends to protect workers
from any form of ‘sexual harassment’ (both male and female) from employers as well as
another worker, as the strength. This is considered biased for failing to consider the
possible sexual harassment of employers by workers given that some emerging
employers are females and could be sexually harassed by male employees and vise versa,
as the weakness. The EEO policy is a boost to feminization of the labour force that
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justifies the above argument. This eventually will be an expensive provision for the
employer given the importance of the national guideline (policy). The LMCC can be used
by workers representatives as well as female employers to push for the purchase of
security cameras, as an additional and hidden cost to employers, which is investor scare
but the advantage to those pushing it. Another weakness is that the griever’s statement
will be taken as the truth in reported cases, since this could be another witch hunts
exercise when there is no substantial evidence to justify the claim. From experience,
cases of this nature can be mere framing of the accused as the result of personal
differences, a pay back time strategy that can be costly to both parties.
7.6.2 Employment Disability
The research found that the term ‘may’, as against ‘must’ or ‘shall’ provides a weak basis
for enforcing ‘ERP’, Section 84(4). But a stronger terminology, indicating a mandatory
requirement, may create significant complication for some employers who may not find
qualified disabled persons, or where there is no room for employing disabled persons,
such as, on construction site and engineering workshops etc. A more appropriate
provision would be to require all employers employing more than 50 workers to produce
policies. The policies aim to employ at least 2% of targeted industry’s disabled labour
force, and to implement such a policy rather than generalizing as the ‘ERP’ does, which
is just a myth.
Employers (those that are badly affected by brain drain) are concerned that with the
current shortage of skill personnel in Fiji, e.g. construction industry. It can be forecasted
that there will be substantial mobility of labour within the region and in and out of the
country. Even though ‘ERP’, Section 37 permits employers to recruit expatriates, to fill
the gap, the worry is that the union might take different position, which is the reality on
the ground. Air Pacific Ltd is of the view that they must be able to discriminate under
‘ERP’, Section 75 for disability and HIV/AIDS in specialized areas of its workforce,
specifically Aircrew and Engineers by virtue of the nature of work required of them. FEF
is concerned that health and safety is huge cost to comply. The emphasis should be
placed on health and safety friendly environment rather than disability friendly.
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7.7 EMPLOYMENT RELATIONS ADVISORY BOARD (ERAB)
The research found that the ERAB is one of the primary advisory institutions, together
with the Wages Councils, to the Minister for Labour with functions and powers confined
to reactive mode, also a common feature with the LAB and a weakness of both old and
the new legislation. However, in both forums the appointing authority is the Minister for
Labour, which is another weakness in both; subject to political abuse since there is
tendency that the political influence of the ruling Government will be favoured. This is a
mockery of the system. Therefore, there should be a clear monitoring structure of seeking
and receiving independent advice. With the introduction of ‘good faith’ in the ‘ERP’, this
forum should be the heart of this introduced concept. For that reason it ought to specify
the consisting memberships to eliminate any potential abuse of ministerial power. There
should also be mandatory monthly rather than the prescribed bi-annual meetings to
signify the importance and seriousness of proactive role of the forum, another noted
weakness, under ‘ERP’, Section 12. It should be aligned to the unit responsible for
“Research and Development” or resourced with qualified personnel and must play a
proactive role in policy formulation and revision. However, the strength is such that the
forum consists of the social partners the composition of which must be taken advantaged
in light of the principal of ‘good faith’ and their expertise
The strength of this provision is the introduction of LMCC, which is discussed in 7.14.
7.8 FUNDAMENTAL RIGHTS AND PRINCIPLES AT WORK
The research found that even though the social partners who were party to the
formulation of the ‘ERP’ were satisfied amongst other things the efforts to introduce
international labour standard and human rights principles. This is also inline with Fiji’s
‘1997 (Amendment) Constitution’, as a testimony of the strength of the new legislation
(‘ERP’). Only 3 of the core conventions were implemented in the old legislation. They
were Conventions No. 29, 98 and 105 all were ratified on April 19th 1974 whilst
Conventions No. 87, 100, 111 and 182 were ratified on April 17th 2002 whereas
Convention No. 138 was the last to be ratified on January 03rd 2003 (ILO, 2007).
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The weakness of the old legislation was limited to the ratified fundamental conventions
in contrast to the ‘ERP’ provisions as testimony of Fiji’s commitment and attachment to
these fundamental rights through the adoption of 1998 ILO Declaration (ILO, 2003) as a
responsible member State. As such, the executive authority should implement proactive
policy measures that suit our labour market. Inclusions in the regulations are not just
enough as it can be accommodative in the legislation but on the other hand has a teething
problem. This is a weakness in the old legislation. Some examples are the prevention of
‘fly by night’ employers, duress forced labour, and interpretation problems, which is
addressed in the ‘ERP’ through the LMCC. The involvement of the legislation
administrator at the very initial stage should be encouraged, followed by refresher
programmes and sport checks as ‘ongoing programmes’.
A classic example is ILO Convention No. 29 - regarding forced labor, which disallows
any person to perform any form of forced labour. However, a social study in Fiji found
that females less than 16 years of age were in forced labour in the informal sector such as
‘sex workers’ (prostitution), in connivance with parents due to increasing unemployment
and degrading poverty level, earning as low as $10.00 per client (Kaitani19, 2006). Not
only they are performing forced labour, under duress, but also they are children,
contravening Convention No. 182 regarding the worst forms of child labour. These cases
would not be detected provided an informer reports them. The enforcement is reactive in
this instance and if the case is not reported there seems to be no ending. Both the
similarity and the weakness is that both the legislation are reactive as enforcements rely
heavily on the informers rather than a proactive monitoring system. The same could be
said with other conventions.
7.9 PRINCIPLE OF ‘GOOD FAITH’
The research found that the simple requirement of the introduced concept demands the
parties to deal with each other in ‘good faith’, based on mutual trust, sincerity, honesty,
humility, confidence, fair dealings and genuine desire to settle differences founded under
19 Dr. Miliakere Kaitani is an Assistant Lecturer in Pacific Institute of Advanced Studies in Development and Governance (PIAS-DG), Faculty of Arts and Law, USP, Laucala Campus, Suva.
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a new industrial and employment relations framework. The term ‘good faith’ is
associated with collective bargaining. ‘ERP’ provides mediation as the primary problem-
solving forum, as its strength. However, these provisions have the potential to create
significant problems for workers as well as employers. It opens the way for management
to control trade union membership by giving favoured trade union, such as in-house
unions, better treatment in terms of collective agreements and collective bargaining. Such
eventualities can be disastrous to unionism.
However, ‘good faith’ bargaining should be imitated from the heart rather than imposed
by legislation.
7.10 EMPLOYMENT GRIEVANCES
The research found that the new provision under ‘ERP’, Part 13 aims to provide
individual workers, (that consist of 70% of the total workforce) whether union members
or otherwise, a procedure for handling grievances, except the discipline forces. There is a
possibility of informal and formal arrangements in the discipline forces, such as in the
Police Force as stipulated under ‘Police (Amendment) Act 2003’ (Goundar, 2007).
Another noted strength under this part is the compulsion of the provision of a grievance
procedure in all contracts under, which the grieving party has the right to activate within
6 months from the date the grievance/action allegedly occurs (Section 111). Another
strength is the accessibility of all grievances to mediation (Section 110(3)) and may
proceed to the Employment Relations Tribunal and Court (Section 110(4)), if warrant, as
discussed in 6.14 and shown in Figure 6.0 (Chapter 6).
However, another weakness is the possibility of systems abuse on petty issues. This could
be a time wastage technique, on the part of the worker, despite the fact that grievance
procedures are innovative means of resolving grievances, an advantage to both parties.
These provisions were not provided in the old legislation as weakness. Another weakness
under the Section 102 - Employment Regulations of the ‘Employment Act’ was that the
maternity leave was just a condition since there was no recourse for the griever. The
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‘ERP’ makes mandatory provisions for employers. They are obliged to provide
justifications for all dismissals under Section 33 and 114, an additional mandatory
employer role, contestable by the worker. This was not provided for under ‘Employment
Act’, such as, summary dismissals in Section 28 etc. However, there is no room for
compromise between the parties in the new provision, as another weakness. The
employer is accountable and subject to legal redress, which could be costly to both
parties. FEF is concerned that now domestic workers are treated equally with other
employees the obligation and offences of which are totally unsuitable for domestic
worker/employer (household) relationship.
7.11 HOLIDAYS AND LEAVES
As discussed in 6.8 (Chapter 6), the research found that both provisions (‘ERP’ and
‘Public Holiday Act’) provides for paid public holidays whereas ‘ERP’ and ‘Employment
Act’, Section 102 –Regulation, provided paid annual holidays as shown in Table 7.1. The
Table further reveals that unproductive days for every employee, except for shift workers,
under the ‘Employment Act’ were 124 days annually, which account for 34% consisting
of; annual holidays – 10 days, public holidays – 10 days and weekends – 104 days out of
365 days. But for females that bare a child had 208 unproductive days (inclusive of the
above entitlements) that account for 57%. These were minimum standards provided by
the old legislation.
Therefore, Table 7.1 reveals that the employee’s minimum annual unproductive days
were 34% (for normal) and 57% (for pregnant females). The revelation also shows that
the respective balance of 66% and 43% were productive days. However, it must be noted
that some sector workers, such as Wages Regulation Order coverage of Hotel and
Catering Trades (2006) provides public holiday - 10 days, annual holiday – 10 days and
sick leave – 6 days. Another example is the collective agreements such as the public
sector where civil service enjoyed public holiday – 10 days, annual holidays - 21 days,
sick leave - 15 days, bereavement leave - 3 days excluding sports leave and
compassionate leave for some classes of workers.
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TABLE 7.1: HOLIDAYS AND LEAVES (UNPRODUCTIVE DAYS)
HOLIDAYS A P S B ML /LEAVE H H L L Leave Post Weekends Total %
Old Acts 10 10 0 0 84 0 104 208 57.0 New ERP 10 12 10 3 84 90 104 313 85.8
Source: Created by the Author, (2008). *KEY:AL – Annual Leave , BL – Bereavement Leave, ML – Maternity Leave, PH – Public Holiday, SL – Sick Leave
The social approach considers these as strength where the workers are utilizing their
economically unproductive days to quality family time but a weakness that affects our
ailing national economy. In contrast, the ‘ERP’ has increased public holidays by 20% and
introduced 10 days sick leave and 3 days bereavement leave, across the board further
deteriorate Fiji’s national economic burden. It increases quality family time, an added
strength. However, the increase silently further burden the employers of their social
obligations that may force an increase in annual emolument budgets by 4.1% - 28.8%.
The increase did not consider the shift workers who will be paid overtime rate (Section
67(2)), despite working their normal hours of work. The increase is certainly a negative
impact to both the employer as well as the workers. The employers are forced to pay
irrecoverable unproductive days that will greatly affect profit margin. This may cost
workers employment, in the long run. And motivational and financial reward to the shift
workers, as strength.
7.11.1 Other Leave Entitlements
The research found that the ‘ERP’ new sick leave (Section 68), bereavement leave
(Section 69) and amended maternity leave (Section 101) provisions are applicable across
the board, which is a weakness and may very well against the much needed investor
confidence policy. Maternity leave provision would contribute to the increase in garment
industry’s operating cost (Fiji Times, Thursday, February 15th 2007). As a Textile,
Clothing and Footwear Council spokesperson, Mr. Halabe further stated that maternity
leave; sick leave and redundancy provisions alone would increase the industry's “… costs
by 6.6% or an estimated $2million annually for the industry…” As discussed in 7.11,
pregnant women unproductive days during the pregnant year is 57%. FEF is concerned
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that in a 12-month period, the female works only for 43%, which was not a productivity
gain to employers. This would affect the ability of employers to compete.
Maternity related absences during pregnancy periods for medical checkups are not
covered in both the legislation. In practice they are taken as day-off or annual leave or
sick leave to be remunerated. This is a flaw considering the birth complication provision
of the ‘ERP’, Section 104(3). Other than this, single day maternity related pre-delivery
absences, when the employee could still be medically fit to work for days closer to child
delivery, would result in pay forfeiture, as a weakness. This will affect the business,
particularly small entrepreneurs. FEF is of the view that increasing leaves overnight
without productivity gains will further increase cost to employers, where they cannot
recoup from customers. As such, would be a deterrent to recruit female workers since the
provision is expensive for small entrepreneurs, as an added weakness despite the natural
role of females to bare children. Therefore, this provision is a hindrance to the current
trend of increasing feminisation in employment, as weakness, when employers would opt
for male workers.
7.12 HOURS OF WORK
The research found that there is no clear definition of managerial or executive positions
that are disqualified from the application of this Part despite the mandatory introduction
of hours of work in all ‘contract of service’, as strength. It is noted that this provision is
not conducive to the notion of ‘flexible hours’ linked to current labour market flexibility
determined by business and customer needs, a weakness. This can be detrimental to
investor confidence.
7.13 INDUSTRIAL ACTION
The research found that this provision demarcates ‘strikes’ is the form of industrial action
that can be undertaken by workers whilst ‘lockout’ is the form of industrial action that
can be undertaken by employers. Under the provision of the ‘Trade Dispute Act’, the
workers had the right to go on strike for an employment dispute. The provision of the
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new legislation restricts the right to strike provided that ‘ERP’, Section 175 and 186 are
strictly adhered to. ‘ERP’, Section 175 deals with ‘secret ballot as a prerequisite to strike’
similar to the provision of ‘Trade Dispute Act’, Section 8 – ‘strike or lock out unlawful
where procedures have not been exhausted’. ‘ERP’, Section 186 deals with ‘strikes in
essential services’, similar to ‘Trade Dispute Act’, Section 16 - ‘strike or lock out in an
essential service’. Any strikes for lawful cause must be in accordance with the provisions
of the legislation, the similarity of the old and the new legislation. For that reason,
employers are required to keep records of strike and lockout. They must furnish a report
within a month after the end of the industrial action, as a new provision. This will enable
the Ministry of Labour to monitor the trend of industrial action in enterprises and
nationally as a whole.
The union movement (FTUC and FICTU) is adamant that such restrictions should be
relaxed, which they argue is in conflict with ILO Convention 87, in particular Section
175(2) that a strike shall be unlawful provided a notice of secret ballot to the Registrar of
Trade Union must;
(a) “Be served on the Registrar 21 days prior to the nominated
date to hold the ballot;
(b) State the date, time and place to hold the ballot; and
(c) State the issues for the strike”.
Secondly, Section 186(2) (d) that the notice of strike must state the estimated duration of
the strike, which they argue no one could predict.
7.13.1 Lawful Strikes or Lockouts on Grounds of Safety or Health
The research found that the ‘HASAWA’ provides preconditions for cessation of work in
certain conditions relating to health and safety issues that is clearly demarcated from
other matters, as the strength. This provision would stop the union movement from riding
on the back of ‘work related matters’ as their tool to justify strike action.
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7.13.2 Essential Service Industries
The ILO (2003) proposed the separation of what are ‘essential’ services from what are
services of ‘fundamental importance’. This would help in determining the urgency in
resolving the matter in dispute or grievance.
7.14 LABOUR-MANAGEMENT CONSULTATION CORPORATION (LMCC)
The research found that while LMCC is a cornerstone of the legislation, there is no
mechanism that encourages, develop and sustain such cooperation. The demand of such
instruments is significant to establish, develop and sustain the employer based LMCC.
This would require qualified fulltime personnel similar to Occupational Health and
Safety Officers under the ‘HASAWA’. For that reason, the facilitation role under Section
9(3) of the ERAB is the strength but the process of the establishment of LMCC is not an
appropriate function of the ERAB, a weakness since the ERAB have no human resource
(staff). Operational matters are for the implementing and enforcement authority rather
than for an advisory body.
The introduction of LMCC is strength of the ‘ERP’, which was not provided in the old
legislation, as a weakness
7.15 POWERS AND DUTIES OF APPOINTED LEGISLATION ENFORCERS
The research found that there is a potential conflict of interest over the administrators and
enforcement officers appointing authority by the Permanent Secretary given the pacific
islands social environment. The local and regional culture, tradition and religion are
somewhat related and sensitive in nature as oppose to the appointing authority of the
‘Employment Act’, the Public Service Commission. This does not mean that the Public
Service Commission employees are free from conflict of interest. Like any institutions,
Public Service Commission comprises of people who deals with job applications and
disciplinary offenses of relatives, which they must declare before the process is activated.
Under this part of the ‘ERP’, the provision is silent on the recruitment policies, a noted
weakness. If not proactively and strategically administered will certainly open windows
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for abuse and bad governance. However, given the bureaucracy in the civil service,
decentralizing of recruitment authority to Permanent Secretary is the strength as the
Ministry of Labour has full control over timely recruitment in technical areas and or
specialists. The principal of ‘good faith’ is an added advantage to this provision to ensure
that the best candidates are identified and recruited, given the technicality of the
industrial and employment relations field. However, there should be a monitoring system
to ensure that the best candidate is appointed on merit and not on the basis of ‘whom you
know’ despite the fact that the best candidate can be the best known to the appointing
authority.
Secondly, the inspection/enforcement powers ought to be separated from the advocacy
powers. In the absence of such separation, the enforcement roles would be subverted to
the advice/training, etc role since the advisory function builds a rapport between the
officers and other parties. The enforcement is based on a strong will to detach the
enforcement officer from the offending party. Such separation is necessary since Fiji is a
small society where personal relationships have a significant influence on administrative
decision-making.
Thirdly, other good governance provisions requires that the Permanent Secretary and
Labour Officers/Inspectors not to have any ‘direct or indirect interest’, including after
leaving Government service, any confidential information whilst in the course of duties
(‘ERP’, Section 20(1)), as strength. The ‘Employment Act’, did not provide the same, as
its weakness.
7.16 RECORGNITION OF TRADE UNION
The research found that the ‘Trade Union (Recognition) Act’, Part II, Section 3 and 4
provided the recognition provision of trade union by employers once 6 and more workers
form a trade union, under ‘Trade Union Act’, Part III. For a trade union to perform its
role as a bargaining agent for its members, it must first seek recognition to the employer
as prerequisite to collective bargaining. Recognition would either be informal - voluntary
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or formal - compulsory. In practice, voluntary recognition is sought first after the
formation of the trade union. Voluntary in the sense that the employer would agree in
‘good faith’ to recognize that particular union for the purpose of collective bargaining.
Employers has the right to refuse voluntary recognition, either oral or in writing. Only
when the employer refused then the union has the right to report to the 3rd party for
intervention. At the same time availed records, which they were required to keep under
the provision of ‘Trade Union Act’. The Permanent Secretary would call for employers
record required under the ‘Employment Act’, Section 102 – Employment Regulation,
Part III – Records. The compulsory recognition order would only be issued, for the
employers to compulsory recognize the union once Permanent Secretary was satisfied
that:
� More than 50% of employers workers have been recruited by the union, as its
member, more than 6 of which formed the union, as majority union; or
� The union has recruited about 30% of employer’s workers as its members, more
than 6 of which formed the union, as minority union and allowing multiplicity of
union.
However, under this arrangement there could not be more than three unions in any
undertaking.
The ‘Trade Union (Recognition) Act’ has been repealed by ‘ERP’, Section 265. The two
national union bodies are at loggerhead on this issue. FICTU and majority of its affiliates
are against the removal of entire provisions provided under ‘Trade Union (Recognition)
Act’. This is backed by Fiji Nurses Association20, a public service union, but always
inclined to FTUC even though not affiliated. Interestingly, Viti National Union of Taukei
Workers, a FICTU affiliate, disagrees with the view of its national body. They are of the
view that their national body’s view directly affects them. Viti National Union of Taukei
Workers was formed specifically for indigenous Fijian civil service workers. It recruited
20 A trade union specifically formed for Nurses under the Industrial Association Act (Cap. 95) and later on under the Trade Union Act (Cap. 96).
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some indigenous Fijian members of the Fiji Public Service Association, the direct impact
of the ‘Trade Union (Recognition) Act 1998’ and got registered under ‘Trade Union Act’.
FTUC strongly objected to FICTU’s view and is very much in favour of the concept of
‘good faith’ contrary to membership threshold under the ‘Trade Union (Recognition)
Act’. FTUC maintains that the concept of membership threshold is against the universal
members of representational right.
‘ERP’, Section 119(2) allows formation of union by at least 7 workers, which must be
registered under ‘ERP’, Section 120. By virtue of being registered renders the union
recognition, although silent, for the purpose of collective bargaining. There is no
threshold requirement enabling more than three unions in any undertaking. FEF is of the
view that employers would recognize every single trade union and deal with them
individually. It should have dealt with a single group on behalf of all the workers like the
previous practice. It is another investor scare policy rather than investor friendly. FICTU
is of the view that the window would open the possibility that different unions would
have different conditions of employment that will further fragment the union movement.
7.17 REDUNDANCY
The research found that the new provision (‘ERP’, Part 12) aims to provide a starting
point and minimum formula for financial compensation to redundant workers. It is the
strength on the workers part but a weakness on the part of the employers who is
mandated to compensate workers. The ‘Employment Act’ failed to provide this.
However, by regulating the minimum is a weakness where employers may use the bases
of the prescribed formula as the mandatory formula that rules out flexibility. Given Fiji
employers stand, flexibility is impossible (Singh, 2007). This provision, according to
FEF, would scare investors and de-motivate potential investments just because of the
hidden cost, as a weakness. FEF is also of the view that the liability of redundancy is only
enacted when workers are actually made redundant, which is not usually included in
organizations balance sheet. Most organizations, particularly small to medium
entrepreneurs, cannot afford redundancy payout. However, the strength is that it would
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disallow abuse and workers exploitations that prevailed in the old legislation because of
its silent features, a weakness of the ‘Employment Act’.
However, such a bond provision as an investment criterion could have safeguarded the
374 redundant Vatukoula Gold Mine workers in late 2005 (Fiji Times, Wednesday,
January 4th 2006). Even such provision, would address the disastrous 2005 EGM
redundant saga.
7.18 SECRET BALLOT
The research found that the ‘ERP’, Sections 122 - 124 and 175 requires secret ballot as
the prerequisite to alter or change of name, amalgamation, affiliation to federation and
strikes of trade unions. The union movement is of the view that this requirement to
ascertain support be removed. They feel that they should be free to decide, under their
own rules and only inform the Registrar of Trade Union of their decision. There is not
much a difference under ‘Trade Dispute Act’ where balloting was required when voting
for union officials, change of name, amalgamation and intention to go on strike for
essential services and other disputes when the settlement procedure was exhausted.
However, the research found that the ‘ERP’ has removed balloting for voting union
officials and include balloting for affiliation whereas balloting for intention to go on
strike is mandatory to any strike action.
The research found that the ‘ERP’ intends to monitor union affairs to ensure
accountability, transparency and good governance in the way they manage and operate
their affairs as a national asset.
7.19 WAGES
The research found that the ‘ERP’, Section 182 provides non-payment of wages by the
employer if the lockout is lawful but silent on the guarantee for payment of wages to the
workers during lawful strikes, which was not provided in the old legislation. The
provision for recording and keeping of wages is maintained, including the provision of
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wage statements. This is a transparent method of informing the workers, which are their
right, the strength of the old and the new legislation. The authority to deduct wages is
also maintained through the written consent of the workers. The increase of deduction
ceiling, only for housing, from 50% to 75% is to the advantage of the worker.
7.20 RESEARCH FINDINGS: A SUMMARY OF EACH PART OF THE ‘ERP’
The research findings are summarized in parts in accordance with comparative analysis
done in the previous chapter. Therefore all Part of the new legislation (‘ERP’) was
discussed with the findings in contrast to the old provision of the legislation
(‘Employment Act’, ‘Trade Union Act’, ‘Trade Union (Recognition) Act’, ‘Trade
Dispute Act’, ‘Wages Council Act’ and ‘Public Holiday Act’).
7.20.1 ‘ERP’ Part 1: Preliminary
In this Part of the ‘ERP’, the research found that;
i. Some key terms such as ‘contract for service’ are not defined in the ‘ERP’. This
was the weakness of the ‘Employment Act’.
ii. There is no clear demarcation of family members i.e. those that are employable
under the ‘contract of service’ and those prohibited. There is potential conflict of
interest, as part of management, on one part and potential exploitation, as
workers, on the other.
iii. 97% of Fiji’s workforce is covered by the ‘ERP’ in contrast to the 30% covered
by the ‘Trade Union Act’, ‘Trade Union (Recognition) Act’, ‘Trade Dispute
Act’). However, the ‘Employment Act’ covered all classes but provided
ineffective grievance process.
iv. Not all stakeholders were consulted during the formulation of the ‘ERP’. This
includes the unorganized sectors (70% of Fiji’s workforce such as domestic
workers), rural dwellers and workers as well as the informal sectors.
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7.20.2 Fundamental Principles and Rights at Work
The research found that the benchmarks used during the formulation of the ‘ERP’ were
the eight core fundamental ILO Conventions and the provision of Fiji’s ‘1997
(Amendment) Constitution’. All the conventions were ratified and the ‘1997
(Amendment) Constitution’ has now ensured compliance.
7.20.3 Employment Relations Advisory Board
The research found that ERAB members are now appointed on merit and the principle of
EEO is considered who in the opinion of the Minister for Labour have the experience and
expertise in the area of its functions. The Minister for Labour at his/her discretion, which
is subject to abuse given the political differences, appoints members and the number of
representatives of the tripartite social partners. The policy advisory role is extended to the
facilitation of LMCC, which is the cornerstone of the legislation but there is no
established mechanism that encourage, develop and sustain such cooperation.
7.20.4 Appointments, Powers and Duties of Officers
The research found that the authority to appoint officers has been delegated to the
Permanent Secretary under the new legislation (‘ERP’). It is a positive sign in terms of
implementing strategic decisions through the appointment of public officers in a timely
manner. But there is no mention of any qualification benchmarks for those eligible to be
appointed public officers to administer the legislation except in the appointment of
Mediator(s), Employment Relations Tribunal member(s) and the Court Judge. The
quality of the service provided would very much depend on the type of public officers
appointed and delegated authority to administer the legislation.
7.20.5 ‘Contracts of Service’
The research found that;
i. Grievance and disciplinary procedures are prerequisite in all ‘contract of service’,
including collective agreements.
ii. All terminations must be in writing and justified to the worker, who has the right
to the grievance procedure.
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iii. All ‘contract of service’ beyond a month must be in writing.
7.20.6 Protection of Wages
The research found that Part 6 of the ‘ERP’ consolidates the ‘Employment Act’, Part VII
and the entire ‘Wages Council Act’ thus divided the Parts into 2 divisions.
Division 1 deals with the safeguard of payment of wages at set intervals, effect
authorized deductions and provide relevant details required by law as follows;
i. Maintained payment of wages in any bank or credit union account standing on the
name of the worker,
ii. Maintained that all deduction from wages must be lawful and authorized by the
worker,
iii. Maintained the provision of records for all workers and written wage statements
during payment of wages at set intervals. It has also recognized the existence of
electronic version provided by some employers, which ever is applicable for as
long as one of them is provided.
iv. Maintained the 50% deduction ceiling except for housing only, which cannot
exceed 75%.
Division 2 deals with the establishment of Wages Councils covering certain industries to
regulate remuneration and conditions of employment in those industries. This provision is
similar to the ‘Wages Council Act’.
7.20.7 Holidays and Leave
The research found that this Part has maintains the provision of 10 days annual holiday,
under ‘Employment Act’ and the schedule public holidays under ‘Public Holiday Act’
but has increased the schedule by another 2 days. ‘ERP’ has introduced 10 days sick
leave and 3 days bereavement leave, across the board, which was limited to wages
regulation orders and collective agreements. Even though workers are entitled to more
quality social time, at all sectors of the economy, but are burdens to the unproductive and
uneconomical business perspective.
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7.20.8 Hours of Work
The research found that this Part introduces normal hours of work per week in a 6-days
working week to be 48 hours and 5 days working week to be 45 hours across the board.
This condition of work was limited to wages regulation orders and collective agreements
coverage.
7.20.9 Equal Employment Opportunities
The research found that this Part introduces the EEO provisions of Fiji’s ‘1997
(Amendment) Constitution’, in particular the eradication of all forms of discrimination in
employment related matters. Workers human rights are well protected that overrides the
employer’s right to know the medical condition of the workers. It prohibits medical
examination as a precondition to permanent employment but demanded employers to put
in place ‘sexual harassment’ policy in line with the national policy. However, it gave the
employers discretionary power to recruit potential workers with disability.
7.20.10 Children
The research found that this Part introduces stronger prohibitions. For the first time,
introduces all prohibited forms of slavery or similar slavery or forced practices, illicit
child activities, or prostitutions that are likely to cause or harm children. This Part also
introduces the eligibility of ‘child’ to trade union rights, including voting right.
7.20.11 Maternity Leave
The research found that this Part maintains women entitlements to abstain from work for
84 consecutive days on account of maternity leave conditional upon the certificate
provided by a registered Medical officer. It has regularized payment of full wages for the
first 3 births and half wages thereafter during payment of wages at set intervals. This has
replaced the $5.00 daily allowance. The maternity leave can now be taken at one-time
rather than 42 days pre-confinement and 42 days post-confinement periods. It has also
introduced additional 3 months, after the expiry of maternity leave period, for birth
complications without pay, during which the worker cannot be terminated. According to
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FEF, the most affected industry would be the garment and the tourism sector where about
75% of its workers are female.
7.20.12 Redundancy for Economic, Technological or Structural Reasons
The research found that this Part introduces for the first time redundancy policy that are
acceptable by law. Redundancy must be economic, technological or structural in nature
and also introduced a redundancy formula. The legislation obliged employers to inform
the Government and the trade union to provide information not less than 30 days before
effecting redundancy procedures, to effect consultation.
7.20.13 Employment Grievances
The research found that this Part has provided the unorganized sector workers, which
covered 70% of Fiji’s workforce, is accessible to the dispute settlement process. They
were disadvantaged in the old legislation since only 30% of the entire Fiji workforce who
were organized was accessible. It has given the freedom to trade union members to take
individual grievance or through the trade union. It ensured that this provision, together
with ‘ERP’, Part 17 makes 97% of Fiji’s workforce is accessible to the dispute settlement
mechanism where Mediation Service is the point of entry. This provision opens any
employment related grievance chance to remedial within 6 months, but first to exhaust
the grievance procedure. It is therefore expected that reported grievances and disputes
would dramatically increase three folds. As such, further demands additional
responsibility and resources on the part of the Ministry of Labour. This provision also
encourages individual bargaining and the chance to appeal through the Employment
Relations Tribunal.
7.20.14 Registration of Trade Unions
The research found that the prerequisite to recognition of trade union is to be registered
after formation by more than 6 members. By virtue of being a registered trade union has
given that registered trade union the legal right to collective bargaining, allowing trade
union multiplicity in any undertaking. Refusal to register trade union is accessible to the
Employment Relations Court whereas change of trade union name, amalgamation,
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affiliation and strike action requires secret ballot, which must be supported by more than
50% of its members.
7.20.15 Rights and Liabilities of Trade Unions
The research found that both the old and the new legislation enables trade union to
function fully as social partners and as legal entities capable of incurring legal
obligations. However, the only new addition under this Part is the legal right given to
trade union to access to workplaces that was not provided by the ‘Trade Union Act’.
Union’s were accessible to workplaces only when specified in the respective collective
agreements.
7.20.16 Collective Bargaining
The research found that the trade union legal right to be the bargaining agent of its
members commences when registered. Therefore, once registered, as a trade union under
the legislation automatically and legally obliged that particular trade union to be
recognized by the employer for the purpose of collective bargaining. This Part introduces
the concept of duty of ‘good faith’ in collective bargaining.
7.20.17 Employment Disputes
Unlike the old legislation, the research found that this ‘ERP’ empowers the Permanent
Secretary to decide for or against the reported dispute in accordance with the provision of
the legislation. It does not demarcate according to the types of disputes but rather ensures
accessibility of all disputes reported within 6 months to the mechanism. The Permanent
Secretary once accepts the dispute would refer the matters of interpretation, application
and operation of employment contract to the Employment Relations Tribunal. Other
matters will be referred to the Mediation Services. It also provides the grieving party
provision to appeal through the Employment Relations Tribunal for rejected cases. This
provision has created institutions responsible and part of dispute settlement mechanism.
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7.20.18 Strikes and Lockouts
The research found that the prerequisite to strike and lockout are the responsibilities of
the trade union to apply for balloting notice, irrespective whether essential or non-
essential services whereas the employer to give lockout notice. It ensures that the filing of
notice be a last resort for non-essential services after the procedures are exhausted. For
strike, the notice must be submitted to the Registrar of Trade Union 21 days prior to the
nominated date to hold the ballot. For lockout, employer to give 28 days written notice to
the Permanent Secretary as well as the respective trade unions. The union movement
strongly opposes this provision saying that the Government is interfering into union
matters. This provision also introduces industrial action the justification of which is based
on health and safety grounds, subject to exhaustion of procedures set out in ‘HASAWA’.
7.20.19 Protection of Essential Services, Life and Property
The research found that this provision has demarcated essential services from non-
essential services. The notice for balloting (trade union) and lockout (employer) in
essential services must be provided 28 days prior to the balloting and lockout dates. The
required notice shall be given to the employer and Permanent Secretary, in case of strike
whilst the lockout notices to be served to the Registrar of Trade Union and the trade
union. However, the Permanent Secretary is obliged under the legislation to ensure that
Mediation Services are provided immediately to avert industrial action.
7.20.20 Institutions
The research found that Mediation Services repeals Conciliation, Employment Relations
Tribunal replaces the Arbitration Tribunal and Employment Relations Court replaces the
High Court.
7.20.21 Offences
The research found that there are prescribed offences and general offences. Prescribed
offences are detailed in ‘ERP’ Sections 246 – 255 whereas for general offences (where no
particular penalty is provided), is provided under ‘ERP’, Section 256.
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7.21 SOCIAL PARTNERS VIEWS ON THE ‘ERP’
7.21.1 Fiji Employers Federation’s Views
FEF represents 525 (up to July 2007) of its members, whilst welcome the concept and the
need to overhaul the old labor legislation, but are also mindful of the intended changes
that must reflect unbiaseness. They are of the view that the transition must rather be
smooth and not rapid in all facets. They are also concern with the economic implications.
The ‘ERP’ further increase the rigidities in Fiji’s labour market due to the increasing cost
structure in the face of liberalization of trade in goods and services market. Therefore the
industrial and employment relations’ concept in developed countries would not provide
the best option for Fiji.
7.21.2 Trade Union Movement Differing Views
Fiji’s trade union national bodies (FTUC and FICTU) interestingly had diametrically
opposed views on the issue of trade union recognition.
7.21.2.1 Fiji Trades Union Congress Views
FTUC agrees with all Fiji’s industrial and employment relations’ social partners that
welcome the review of the labour legislation. It believes that the ‘ERP’ is a milestone in
the history of employment relations in Fiji that consolidates old labor legislation into a
single modernized one that aims to protect the vulnerable and the unorganized workers. It
introduces ‘good faith’ collective bargaining; repeals the ‘Trade Union (Recognition)
Act’ and introduces the concept of formal LMCC mechanism in the workplace that has
more than 20 workers.
7.21.2.2 Fiji Island Council of Trade Union Views
Likewise, FICTU agrees with all Fiji’s industrial and employment relations’ social
partners that welcome the review of the labour legislation. However, FICTU opposed the
removal of the recognition provision and proposed its retention in the ‘ERP’ to avoid
raise in multiplicity of trade union in a workplace. It is of the view that all existing trade
union would demand to negotiate separately with the employer. This could lead to chaos
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– division of workers and emanating of different sets of working conditions in
workplaces as well as ongoing disputes between employers and the multiple trade
unions’. They maintain that majority membership should have the right to negotiate with
the employer, the provision that has worked well in Fiji’s industrial and employment
relations’ environment, which should be maintained.
7.21.3 Trade Union Movement Common Positions on ‘ERP’
The trade union movement has common positions on 4 broad issues:
i. The Right to Strike; as discussed in 7.13 (Chapter 7).
ii. Interference of Government in Trade Union Matters; the union movement
believes that the provisions of ‘ERP’ promotes and condones the interference of
the Government in trade union matters. In particular, ‘ERP’, Section 128 and 129,
which are similar to ‘Trade Union Act’, Sections 54 and 55 in regards to the
examinations of financial statements by members, as their right, and the Registrar
of Trade Union being the status role. Secondly, is in relation to the sweeping
powers of the Registrar of Trade Union to cancel or suspend registration of trade
union under ‘ERP’, Section 33(3), similar to ‘Trade Union Act’, Section 14(3)
except for the removal of the Sub-section 3© of Section 14 for the statutory
prohibition of union officers ability to assist other unions as sign of brotherhood.
The union believes that their movement – under their respective trade unions, should be
free to decide, under its own rules. However, the legislation must ensure accountability,
transparency and good governance in how they manage their own affairs on behalf of
their members, being the national assets. Rather than an intervening role, the State
through the RTU is merely to monitor that the national assets are limiting their roles
under the provisions of the legislation.
iii. Redundancy and Termination of Employment; the valid grounds for termination
of employment of the worker should be limited to where the work or function
disappears, such as: under ‘ERP’, Section 29 – ‘provisions as to notice’, 41 –
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‘termination of contract in other circumstances’, 104 – ‘restriction on termination’
of women, and 107 – ‘provision of information’ regarding redundancy.
iv. Essential Services; Schedule 7 must be inline with ILO Freedom of Association
standards 450 and 451 where list of essential services must be limited to the
services the interruption of which could endanger the life, personal safety or
health of whole or part of the population that very much depend on the prevailing
circumstances in the country.
7.22 CONCLUSION
The study found that all industrial and employment relations’ stakeholders, including the
major social partners, have agreed in principal that the old labor legislation must be
overhauled. However, the study identifies the controversies surrounding the ‘ERP’. Even
the two national trade union bodies (FTUC and FICTU) are disagreeing with some
provisions, in particular the recognition provision. The study has also unveiled the
disagreements between the employer and the union movement. The State is responsible
for initiating the processes of the new ‘ERP’ that utilizes the social actor’s involvement
and the extent to which their interests are addressed. Since all the social partners will be
affected, the study also seeks to predict the implications of certain provisions from
political, social, economic and legal perspectives.
This chapter has examined the research results and the implications of ‘ERP’ for future
labour market and relevant social partners and their concerns. However, the next chapter
will draw some suggestions in view of the outcome of the study. It also provides the
concluding remarks.
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CHAPTER 8
CONCLUSION
8.0 INTRODUCTION
This Chapter concludes the Thesis. It would highlight the theoretical approach of the
study and provide insights to some outstanding issues. It also provides suggestions to the
weaknesses of the ‘ERP’.
8.1 ‘ERP’ THEORETICAL FRAMEWORK
The result of this Thesis shows that the introduction of the ‘ERP’ falls under the
pluralistic industrial and employment relations’ framework. It is further classified with
the corporatist version of the pluralist theory. The research found the following:
i. The 3 major parties (social partners) of industrial and employment relations were
constantly consulted during the formulation process of the ‘ERP’.
ii. The State, through its executive arm, the Ministry of Labour is in charge of labour
matters. The Ministry of Labour had taken the initiative to overhaul the old
legislation and had taken the active role in the development of the ‘ERP’.
iii. The State has facilitated the machinery; through its executive arm in charge of
labour matters, during the development of the ‘ERP’, i.e. from drafting to
parliament and finally the promulgation.
However, the legislation has encouraged individual bargaining through the introduction
of grievance procedure for individual workers, in a ‘unitary’ setting.
The outstanding issues and suggestions are divided into two parts in response to the
administrative problems and the general weakness of the ‘ERP’.
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8.2 SUGGESTIONS IN RESPONSE TO ADMINISTRATIVE PROBLEMS
Suggestion 1:
The study suggests that the Ministry of Labour must be adequately resourced to ensure
timely and productive review of the labour legislation.
Whilst all social partners agree for the overhaul of the entire old labour legislation, the
Ministry of Labour has not been fully resourced for the challenge. First and foremost is
the lack of political will on the part of the Government. The laxity on the part of the
Government is reflected on the duration of the entire formulation process. It took 12
years from drafting stage to the full implementation of the ‘ERP’. There are culminations
of reasons.
i. Firstly, there was no specific budget from the drafting stage to the final stage
where Ministry of Labour has to source from within their annual budget to meet
the demand of the LAB. The Ministry of Labour should have applied for an
allocated budget specifically for the entire review program.
ii. Secondly, there was lack of capacity within the Ministry of Labour to undertake
the review-leading role during the entire formulation process, as the result of
inconsistent development. The review program was not separated from other
operational activities that were treated with some urgency.
iii. Thirdly, there was lack of commitment on the part of the LAB to advise the
Minister for Labour on all matters pertaining to industrial and employment
relations. Being the central agency it should be giving directions and at the same
time monitor and supervise the developmental stages. This institution has
legislated role under the ‘Employment Act’ to advise the Minister for Labour on
all industrial and employment relation’s matters.
iv. Fourthly, is whether the Ministry of Labour has the capacity and the will to
enforce the legislation? The ‘HASAWA’, Clause 41(1) empowers Minister for
Labour on the recommendation of the Chief Health and Safety Inspector, may
appoint such suitably qualified persons to be Health and Safety Inspectors. This
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provision allowed recruitment of qualified people to enforce the ‘HASAWA’. The
decline of industrial accidents and disputes through the implementation of
‘HASAWA’ that annually stands in between 5% – 13% from 1997 to 2006 is a
testimony (Fiji Times, Wednesday, September 27, 2006). That attributed from the
capacity and the will to enforce the legislation. However, ‘ERP’, Section 15(1)
and ‘Employment Act’ provided that the responsibilities for the administration of
the ‘ERP’ are the Permanent Secretary and other public officers. Therefore, these
appointed public officers must be adequately trained and developed. The
provision should reflect the need for the recruitment of suitably qualified persons
(similar to ‘HASAWA’) to administer and enforce the legislation.
Suggestion 2:
The study suggests that all the stakeholders must be made aware of the changes that are
taking place within the industrial and employment relations’ framework.
The study found that the major social partners were aware of the changes only through
seminars and meetings. Table 5.0 reveals that the only stages that the grassroots people
could and were involved was during the Road Show and the public hearings of the
PSSCES. However, statistics shows that it was a futile exercise because of poor response.
The study also found that the public hearings concentrated in urban centers that
disadvantaged the rural stakeholders. The Road Show and the PSSCES should have
targeted the 14 Provincial Council and ‘Tikina” Council Meetings, enterprises and trade
unions, civil society organizations and national union and employer bodies.
However, poor turnout should not be used as an excuse as it is the role of the Ministry of
Labour to educate citizens of this country regarding the intended changes.
Parliamentarians should ensure that their voters are widely consulted. The PSSCES was
however unclear whether the ordinary workers, the very people that will be affected by
the ‘ERP’, were consulted. Such as the ‘domestic workers’ since there was no indication
of any feedback from these groups of workers who were unorganized (Parliament of Fiji,
2006).
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Suggestion 3:
The study suggests that the legislation formulation processes should have involved all
stakeholders and not just the majority.
As in any democratic society, consultations should have taken place with the involvement
of all stakeholders, from grassroots to the elites and should cover the wider society. The
PSSCES reported in its report to Parliament of Fiji (2006) that despite their attention
were drawn to the consultation arrangements that were required under the existing
legislation, it was noted that apart from other stakeholders, there was no indication that
the Ministry of Fijian Affairs were consulted for matters that affect the interests of the
indigenous Fijians under Section 11 of the ‘Fijian Affairs Act’ Cap 120.
8.3 SUGGESTIONS IN RESPONSE TO THE GENERAL WEAKNESSES OF
THE ‘ERP’
Suggestion 4:
The study suggests that there should be a regulation to protect workers from ‘fly by night
employers’.
It shall impose investor’s obligations, in the Investment Application form, payment of
refundable bonds depending on the number of employees to cover for unpaid bills. An
example was the case of Ghimli Garment factory in Lautoka that packed and left
unnoticed living behind outstanding workers wages.
Another form is similar arrangements made between EGM and Westech Gold Mine with
the undertaking to take over social responsibility (Fiji Times, Wednesday, January 4th
2006).
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Suggestion 5:
The study suggests that there should be an ‘Under Cover Unit’ within the Ministry of
Labour to uncover illegal labour related activities.
The unit is to be staffed with highly trained and professional staff in its proactive measure
to stop illegal activities, such as sex workers (prostitution) and other forms of illegal
employment activities.
Suggestion 6:
The study suggests that the established LMCC should be a proactive tool in dealing with
industrial and employment relation’s matters.
This is a positive move, which should be proactively monitored. However, the concern is
that the ERAB is the point of contact. The legislation administrators should proactively
administer the system. A proactive approach such as inspection of record of wage
payment, which should be extended to cover LMCC minutes to gauge the status of
grievances, includes interrogating of LMCC chair and members in a proactive manner to
monitor LMCC process rather than through the reporting of the dispute. However, the
other concern is contradiction under regulation 14 and 16 of the Employment Relations
(Labour-Management Consultation and Cooperation Committees) Regulations 2008.
Whilst regulation 14 requires the submission of the record form at the end of every
quarter regulation 17 requires the same at the end of every half-year.
Suggestion 7:
The study suggests that there should be a standard review period for all Labour
legislation in Fiji.
It was found that labour legislation in Fiji do not have any review period Therefore the
study suggests that there should be a standard review period for the ‘ERP’. The absence
of the review period would allow any Government to review the legislation not in the
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best interest of the social partners. Secondly, the review should not be on ad hoc basis, as
in the controversial 1990’s labour reform but rather the review of the entire legislation.
Suggestion 8:
The study suggests that the application of the legislation should cover the nation’s entire
workforce rather than the majority.
The legislation should cover the entire workforce, which will allow members of the
discipline forces accessible to the grievance procedures, ‘sexual harassment’ policy and
disputes mechanism but may be exempted from the strike provision etc to protect the
essential nature of the services they provide.
Paragraph 2 of item 7.2 (Chapter 7) reveals that the workers rights that the nation’s
labour force of about 97% enjoys are discriminated against the minority 3%
(http://en.wikipedia.org/wiki/Military_of_Fiji, http://www.corrections.org.fj/ and
Goundar, 2007)
Suggestion 9:
The study suggests that the introduction of good governance provision demand the
development of a code of practice for Ministry of Labour staff, including appointment of
administrators and enforcement officers.
Fiji needs such provisions since governance is weak.
Suggestion 10:
The study suggests that all every day used terms must be clearly defined to avoid
conflicts.
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For example, the ‘Contract for service’ is omitted by the old and new legislation, which
make them reactive. Differing interpretations can be proactively addressed if such day-to-
day term is clearly defined.
Suggestion 11:
The study suggests that freedom of discrimination under Section 38 of Fiji’s ‘1997
(Amendment) Constitution’ should be extended to include freedom of harassments and
bullying in workplaces as well as unfair dismissals.
International experience shows that these features are well ingrained in a large number of
workplace institutions as well as unfair dismissal where recognition of freedom from
unfair dismissal is a crucial right of a worker in modern times (Prasad et al., 2003).
Suggestion 12:
The study suggests that localization policy must be part of the expatriates terms and
condition of contract and part of Schedule 2 of the ‘ERP’.
Such provision will safeguard the interest of the local labour market.
Suggestion 13:
The study suggests that the legislation must determine the basis on which the Chief
Tribunal must refer a matter to a 3 member Tribunal, under ‘ERP’, Clause 203(3) to hear
and determine a matter.
The provision must be specific as to what constitute these matters that warrant the Chief
Tribunal to nominate another two as Employment Relations Tribunal members.
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Suggestion 14:
The study suggests that the legislation should provide a time frame within which
Mediation Service to settle the employment grievance or dispute referred to it under
‘ERP’, Section 194.
It is noted that one of the objective of the legislation reform is to settle the employment
grievance and dispute speedily. Without any time frame in the ‘ERP’ would defeat the
purpose of that objective. It is noted that there is a time frame within which Mediators to
deal with a case under the Code of Ethics for Mediators 2008, which should be inserted
in the ‘ERP’. Secondly, specified time frame will also help the parties to decide for the
next cause of action.
Suggestion 15:
The study suggests that the legislation should decrease the period during which the
parties to deal with each other.
6 months provided under ‘ERP’, Sections 111(2) and 170(6) is considered too long on
issues that are of significant importance and must be treated with some urgency. The
decrease will ensure that the parties are at their toes knowing too well the consequence of
the delay. Particulars of essential services that impacts on employer operation (that
dictates the survival of the enterprise) and matters of economic dependency to the worker
(life and death) could dictate matters of urgency.
Suggestion 16:
The study suggests that the legislation must separate and clearly demarcate ‘essential
services’ from what are services of ‘fundamental importance’.
This approach is desirable to avoid future conflicts.
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Suggestion 17:
The study suggests that the legislation must have the recourse for the delay either at
Mediation, Tribunal and Court.
This will ensure that the established institutions are accountable for their legislated role
and jurisdiction. Secondly, to consistently maintain one of the objectives of the
legislation reform to settle employment grievance and dispute speedily throughout.
Suggestion 18:
The study suggests that employers must be given the right to know the medical
conditions of its workers.
However, but must be treated with confidentiality and must not be used to justify
termination provided there is evidence to prove that the medical conditions is affecting
the productivity level of the worker contrary to ‘ERP’, Clause 75.
Suggestion 19:
‘Provincialism’ should be included in the list of prohibited grounds for screening
workers.
The author has witnessed on two occasions discrimination on this ground. The 1st was a
Human Resource Manager of a state owned enterprise. The appointee was appointed on
merit, but was pressured by a group of provincial members through the organizations
board of directors to resign or face termination. Secondly, during an employment
interview where it was specifically mentioned that the interviewers would not prefer an
appointee from a specific province. Fiji Nurses Association is also of the view that Fiji’s
vulnerable labour market warrants the proposed inclusion.
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8.4 CONCLUSION
It must be acknowledged that there is a continuing need for new labor standards to take
account of changing circumstances. This includes the emergence of new forms of work
relationships and changing community expectations. At the same time concerns have
been raised about the quality as well as the quantity of standard setting. Some of the
standards are obsolescent, if not obsolete, which had borne out of the fact that ILO lists
about 30 Conventions as having shelved or withdrawn. They are no longer promoted and
the ratifying States are no longer required to report on the effect given to them
(Creighton, 2004).
Labour legislation needs to bridge the gap between those in work and those out of work.
It must also create flexibility as well as security; cater for workers with industrial strength
as well as those with collective power and to assert the importance of social rights in the
face of competitive pressures caused by globalization. However the down side is that
these principles are easily corrupted in the absence of good governance. Hepple’s21
(1983) goal of labor legislation in the 21st century includes; strengthening of social
provisions in regional economic treaties, promoting a ‘race to the top’ through corporate
codes and the dissemination of best practices, local actor’s empowerment and revitalizing
and enforcing international labor standards (Creighton, 2004). Developing countries must
develop strategies to indicate how the policies are adopted and steps to be taken to
implement their commitments on various core labour standards over a specified period
(Singh and Zammit, 2000).
In countries where labour legislation is not in line with the core ILO standards, it is
urgent that this be done. One way of overcoming national limitations would be to have a
regional code of minimum labour standards that are on par with, if not better than the
21 A retired labour lawyer, Professor Sir Bob Hepple QC is British decent but born in South Africa in 1934. He graduated in law in 1957 from University of the Witwatersrand and fled to Britain in the height of apartheid in December 1963. He continued his interest in the labour law field where he climbed the leader and finally reached his retirement as Master of Clare College in 2003. He published ‘The Future of Labour Law in the Industrial Law Journal in 1995.
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Fundamental Declaration of the ILO. Both this may require a consensus at national level,
and a political will to act regionally and nationally.
Future labour legislation would be constructed on the great ideals of social justice,
equality and human rights (Barnard et al., 2004) but will have to be very much rooted in
the social and political fabric of individual countries. Difficult choices obviously lie
ahead of respective governments of the day, irrespective of the type of government. Part
of the challenge in developing pacific island countries is the adoption of national
minimum standards that are purely flexible that may not be favorable to the pacific way
and the opportunity to enhance the prospects for social dialogue. Social dialogue as a
method through which to approach labour and employment policy development, and as a
mechanism to resolve distributional and other disputes in the labour market, has
resonance in the culture and traditions of many pacific island countries. As a concept and
a method, tripartism allows pacific island countries to overcome problems that arise from
a narrow wage and salaried employment base and from the dominance of the state.
There is a clear trend towards greater independence of enterprises and more
individualized labour relations now than before. Fiji’s union density has declined from
35% couple of years ago to 30%; employers associations are facing difficulties whilst the
very useful of collective bargaining is challenged. As a result industrial and employment
relations is no longer able to serve its traditional purpose and as effectively as before;
income gaps are widening, unemployment and underemployment are causing social
exclusion. In the labour market people are trapped between formal and informal
arrangements and are finding it difficult to make their voice heard. While some blamed
the new production methods and communications, including the globalization
phenomenon, on the emerging approaches to human resource development. For others,
collective bargaining is the past leftovers that are unable to cope with all the different
concerns and levels of industrial and employment relations and believed that the new
forms of cooperation with workers are better suited to present day constraints. There are
many signs that many employers associations and trade unions are adjusting to the
realities of today. And there is every sign that a whole new social dynamic is developing.
173
The most active trade unions are looking beyond the working population and are opening
their doors to that non-formal employment while the State is getting more and more
involved in social issues than ever before (ILO, 1997).
The way forward for the workers is through faster economic growth, which would
facilitate faster structural change, and more and better jobs. To achieve faster economic
growth, workers would need to oppose the current globalization process and instead seek
a worker-friendly road to integration of the international economy. This would help raise
employment, real wages and labour standards. The adoption of best practice labour
standards must be promoted by the developing countries through the adoption of policy
approaches, which would enlist the practical support of the international community.
However, summarily, the political and legislative processes are basic to the
formulation and promulgation of statutory public policy. They exist to bring
conflicts of interest into focus and to resolve them in an orderly, if not conclusive,
manner. They provide organized groups, as well as individuals, with an opportunity
to be heard. Pressure groups, in turn, may attempt to increase or decrease the size of
the public involved as proposed legislation affects their interest. Each group
frequently induces the organization or counter activity of another. In this way the
ruling government gets some idea of the possible consequences of proposed
legislative action. Although all stakeholders participate in the processes, they do not
necessarily present a united front, and their political and legislative activities have
counterparts among other elements in the economy and the society. As a result,
most statutory public policy represents compromises with what extremists at either
end of the spectrum desire. Finally, enactment of proposed legislation into law is
the end of only one process in the formulation of public policy (Johnson, 1965).
The ILO provides guidelines and yardsticks through its conventions and
recommendations as a basis for the development of labour legislation. Kiribati and Fiji
are now proceeding to use relevant ILO standards as the basis for revision of existing
labour laws. Vanuatu is likely to follow suit. But not all pacific island countries are
174
members of the ILO, and in such cases joining the ILO might be an important starting
point. But labour standards are also becoming an important subject in international trade
discourses. Protective labour legislation might enhance the international trade prospects
for these pacific island countries.
The challenge therefore is to translate international standards into national practice and
law not only because they will help improve social protection, but also because they will
enhance prospects for international trade, as in developed countries.
Developing nations are facing the same challenges face by the developed countries.
However, the magnitude may differ, the same principles of which applies in the
development of labour legislation. The notion of ‘one size fits all’ conform that current
global industrial and employment relations development is not meant to favour any actor,
even though there are notable trends. The union movement has globally experienced
membership continued decline. On the other hand capitalists are increasingly introducing
employee involvement and precarious forms of employment. Both subjects have become
a political as well as academic debate. However, it failed to convince development,
introduction and amendment of labour legislation inevitability.
In democratic model, we are bound to change Government through the process of
national election every 5 years. When new Government is voted into power, they have
the right to manage the nation. This includes make changes inline with their manifestos,
transformed into policies for the best interest of the nation. Some of these labour policies
are converted to legislation. Historically developed from 1349 in UK during the industrial
revolution five and a quarter century away from Fiji’s labour legislation history. Yet, Fiji
is the most developed pacific island countries in many aspects, including development of
labour legislation, despite its unstable political environment.
Both NZ and Australia, while remaining first world countries, through their own unique
development experienced the effects of international competition. Economic
liberalisation has resulted in unemployment and wage inequality in developing countries.
175
Workers are forced to accept worsening wages and conditions, as a global labour market
result in a ‘race to the bottom’. The reduction of autonomy of nation state as the capital
increasingly mobile and the ability of the State to regulate economic activity reduces
(Harbridge and Walsh, 2002), which Fiji is not an exception.
However, similar to any legislation, the ‘ERP’ provides the compulsory legal minimum,
which gives the employer the freedom to provide over the minimum discretionally in
‘good faith’.
176
9.0 BIBLIOGRAPHY
9.1 INTERVIEWS
9.1.1 E-Mail Interview
Koroivusere, L. (2007). E-Mail interview received on September Tuesday 4th. Former Parliamentary Hansard Reporter and Secretary to the Parliamentary Sector Standing Committee on Economic Services and currently Secretary, Ministry of Finance & Economic Planning, Suva, Fiji.
Pulu, J. (2007). E-mail interview received on July Friday 27th. Assistant Labour Officer, Registrar of Trade Unions Office, Ministry of Labour & Industrial Relations, Suva, Fiji.
Rasake, U. (2007). E-mail interview received on September 30th, Director Human Resource, Sheraton Hotel, Nadi, Fiji.
9.1.2 Face to face Interview
Interview with Alifereti Tora, Acting Senior Business Manager, Fiji Development Bank, Suva, August 30th 2006, Fiji.
Interview with Arun Prasad, Industrial Relations Officer, Fiji Teachers Union, August 14th 2006, Suva, Fiji.
Interview with Asaeli Tokalau, Human Resource Manager, Housing Authority of Fiji, Nasinu, August 30th 2006, Suva, Fiji.
Interview with Ashla Singh, Lecturer, University of the South Pacific, December 19th
2007, Suva, Fiji.
Interview with Attar Singh, National Secretary, Fiji Island Council of Trade Union, August 14th 2006, Suva, Fiji.
Interview with Azam Khan, Town Clerk/Chief Executive Officer, Sigatoka Town Council, Sigatoka, February 10th 2006, Suva, Fiji.
Interview with Azim Khan, a Form 4 student of Suva Muslim School, Tebara Butcher, Suva Market, December 19th 2007, Suva, Fiji.
Interview with Deepak Rathod, Chief Operating Officer, R.B. Patel Group Ltd, Toorak, August 15th 2006, Suva, Fiji.
177
Interview with Esala Masitabua, Chief Manager – Corporate Services, Reserve Bank of Fiji, Suva, August 30th 2006, Fiji.
Interview with Finau Drova, Health & Safety Officer, Telecom Fiji, Suva, August 14th
2006, Suva, Fiji.
Interview with Gayanand Singh. Human Resource Manager, Fiji Sugar Corporation, February 24th 2006, Lautoka, Fiji.
Interview with Mark Hallabe, Managing Director, Mark One Apparel and Executive of Fiji Employers Federation, August 16th 2006, Suva, Fiji.
Interview with Humphry Chang, Vice President, Fiji Chamber of Commerce and Industry, August 16th 2006, Suva, Fiji.
Interview with Inbamalar Wanaranjan, Managing Director, Intimate Apparels Ltd, Vatuwaqa, August 16th 2006, Suva, Fiji.
Interview with John Barton, Production Manager, Lyndhurst Limited, Nasinu, August 30th 2006, Suva, Fiji.
Interview with Josefa Sania, Chief Economic Planning Officer, Ministry of Finance & National Planning, Suva, August 01st 2006, Fiji.
Interview with Kuini Lutua, General Secretary, Fiji Nurses Association, August 15th
2006, Suva, Fiji.
Interview with Ledua Naivalurua, Human Resource Officer, Land Transport Authority, Nasinu, August 30th 2006, Fiji.
Interview with Litia Gavoka, Human Resource Manager, Holiday Inn Suva, July 26th
2006, Suva, Fiji.
Interview with Maika Namudu, General Secretary, Fijian Teachers Association, July 26th
2006, Suva, Fiji.
Interview with Nanise Nagusuca, Member of Parliament, Tuesday, September 19th, 2006, Suva, Fiji.
Interview with Nasau Werekoro, Human Resource Manager, Fiji pine Ltd, Lautoka, February 18th 2006, Fiji.
Interview with Peni Dolavale, Health & Safety Officer, Air Pacific Ltd, Nadi, February 26th 2006, Fiji.
178
Interview with Rajeshwar Singh, Assistant National Secretary, Fiji Trade Union Congress, December 19th 2007, Suva, Fiji.
Interview with Sadrugu Ramagimagi, Manager Labour Standards Services, Ministry of Labour & Industrial Relations, September 07th 2007, Suva, Fiji.
Interview with Sageeta Sanelu, Human Resource Officer, Coca-cola Amatil (Fiji) Ltd, Laucala Beach, August 14th 2006, Suva, Fiji.
Interview with Salaseini Nadakuitavuki, Human Resource Unit Leader, Fiji Electricity Authority of Fiji, July 25th 2006, Suva, Fiji.
Interview with Sefanaia Tabua, Human Resource Manager, Fiji Forest Industries, September 15th 2006, Labasa, Fiji.
Interview with Sosiceni Manulevu, Labour Officer, Ministry of Labour & Industrial Relations, August 25th 2006, Nadi, Fiji.
Interview with Susana Tuisawau, Pacific Foundation for Advancement of Women, August 22nd 2006, Suva, Fiji.
Interview with Taniela Tabu, General Secretary, Viti National Union of Taukei Workers, August 22nd 2006, Suva, Fiji.
Interview with Tevita Kunatuba, Acting Manager Industrial Relations, Ministry of Labour & Industrial Relations, Suva, August 30th 2006, Fiji.
Interview with Vijay Kumar, Human Resource Manager, Valebasoga Logging Company, September 15th 2006 Labasa, Fiji.
Interview with Virisila Buadromo, Executive Director, Fiji Women’s Right Movement, August 23rd 2006, Suva, Fiji.
9.2 LEGISLATION
Industrial Relations Bill. (1997). Ministry of Labour & Industrial Relations, Suva, Fiji.
Employment Relations Bill. (2004). Ministry of Labour & Industrial Relations, Suva, Fiji.
Laws of Fiji. Employment Act Cap 92. (1976). Parliament of Fiji, Government Printer, Suva, Fiji.
179
Laws of Fiji. Employment Relations Promulgation (2007). Government Printer, Suva, Fiji.
Laws of Fiji. Industrial Association Act Cap 95 (1978). Government Printer, Suva, Fiji.
Laws of Fiji. Industrial Association (Amendment) Decree No. 42 (1991). Government Printer, Suva, Fiji.
Laws of Fiji. Ordinances of Fiji (1876). Government Printer, Levuka, Fiji.
Laws of Fiji. Ordinances of Fiji (1883). Government Printer, Levuka, Fiji.
Laws of Fiji. Ordinances of Fiji (1886). Government Printer, Levuka, Fiji.
Laws of Fiji. Ordinances of Fiji (1891). Government Printer, Levuka, Fiji.
Laws of Fiji. Ordinances of Fiji (1907). Government Printer, Levuka, Fiji.
Laws of Fiji. Ordinances of Fiji (1911). Government Printer, Levuka, Fiji.
Laws of Fiji. Ordinances of Fiji (1912). Government Printer, Levuka, Fiji.
Laws of Fiji. Ordinances of Fiji (1918). Government Printer, Levuka, Fiji.
Laws of Fiji. Ordinances of Fiji (1920). Government Printer, Suva, Fiji.
Laws of Fiji. Ordinances of Fiji (1931). Government Printer, Suva, Fiji.
Laws of Fiji. Ordinances of Fiji (1935). Government Printer, Suva, Fiji.
Laws of Fiji. Ordinances of Fiji (1938). Government Printer, Suva, Fiji.
Laws of Fiji. Ordinances of Fiji (1940). Government Printer, Suva, Fiji.
Laws of Fiji. Ordinances of Fiji (1941). Government Printer, Suva, Fiji.
Laws of Fiji. Ordinances of Fiji (1954). Government Printer, Suva, Fiji.
Laws of Fiji. Ordinances of Fiji (1958). Government Printer, Suva, Fiji.
Laws of Fiji. Ordinances of Fiji (1964). Government Printer, Suva, Fiji.
Laws of Fiji. Ordinances of Fiji (1966). Government Printer, Suva, Fiji.
Laws of Fiji. Public Holiday Act Cap 101 (1978). Parliament of Fiji, Government Printer, Suva, Fiji.
180
Laws of Fiji. Republic of the Fiji Islands. (1998). Constitution (Amendment) Act, July 1997. Parliament of Fiji, Government Printer, Suva.
Laws of Fiji. The Public Enterprise Act (1996). Government Printer, Suva, Fiji.
Laws of Fiji. Trade Dispute Act (Amendment) Decree No. 27 (1992). Government Printer, Suva, Fiji.
Laws of Fiji. Trade Dispute Act Cap 97 (1978). Parliament of Fiji, Government Printer, Suva, Fiji.
Laws of Fiji. Trade Unions Act (Amendment) Decree No. 44 (1991). Government Printer, Suva, Fiji.
Laws of Fiji. Trade Union Act Cap 96 (1978). Parliament of Fiji, Government Printer, Suva, Fiji.
Laws of Fiji. Trade Unions (Deduction of Union Dues) Regulations (1991). Government Printer, Suva, Fiji.
Laws of Fiji. Trade Union (Recognition) Act (Amendment) Decree No. 43 (1991). Government Printer, Suva, Fiji.
Laws of Fiji. Trade Union (Recognition) Act Cap 96A (1978). Parliament of Fiji, Government Printer, Suva, Fiji.
Laws of Fiji. Trade Union (Recognition) Act (1998). Government Printer, Suva, Fiji.
Laws of Fiji. Trade Union Regulations (Amendment) Regulation (1991). Government Printer, Suva, Fiji.
Laws of Fiji. Wages Council Act Cap 98 (1978). Parliament of Fiji, Government Printer, Suva, Fiji.
Laws of Fiji. Wages Regulation (Hotel & Catering Trades) Order (2006). Government Printer, Suva, Fiji.
9.3 HANZARD REPORTS
Anthony, F. (2006). Speech in Parliament on the Employment Relations Bill, 2006. Hanzard Report, Parliament of Fiji, Suva, Fiji. Tuesday, September 19, 2006.
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Bale, Q. (2006). Speech in Parliament on the Employment Relations Bill, 2006 as Acting Minister for Labour & Industrial Relations. Hanzard Report, Parliament of Fiji, Suva, Fiji. Thursday, November 30, 2006.
Bulanauca, M. (2006). Speech in Parliament on the Employment Relations Bill, 2006. Hanzard Report, Parliament of Fiji, Suva, Fiji. Wednesday, November 29, 2006.
Chaudhry, M. P. (2006). Speech in Parliament on the Employment Relations Bill, 2006. Hanzard Report, Parliament of Fiji, Suva, Fiji. Wednesday, November 29, 2006.
Mupnar, P. (2006). Speech in Parliament on the Employment Relations Bill, 2006. Hanzard Report, Parliament of Fiji, Suva, Fiji. Tuesday, September 19, 2006.
Nagusuca, N. K. V. (2006). Speech in Parliament on the Employment Relations Bill, 2006. Hanzard Report, Parliament of Fiji, Suva, Fiji. Tuesday, September 19, 2006.
Raghwan, M. (2006). Speech in Parliament on the Employment Relations Bill, 2006. Hanzard Report, Parliament of Fiji, Suva, Fiji. Tuesday, September 19, 2006.
Salabula, L. T. (2006). Speech in Parliament on the Employment Relations Bill, 2006. Hanzard Report, Parliament of Fiji, Suva, Fiji. Tuesday, September 19, 2006.
Tabaiwalu, P. (2006). Speech in Parliament on the Employment Relations Bill, 2006. Hanzard Report, Parliament of Fiji, Suva, Fiji. Tuesday, September 19, 2006.
Yabaki, K. T. (2006). Speech in Parliament of Fiji during the tabling of the Report of the Sector Standing Committee on Social Services on Employment Relations Bill, 2006. Hanzard Report, Parliament of Fiji, Suva, Fiji. Monday, September 11, 2006. Accessed from http://www.parliament.gov.fj/hansard/viewhansard.aspx?hansardID=543&viewtype=fullon 14/02/07.
Zinck, K. (2005) Speech in Parliament of Fiji whilst introducing the Employment Relations Bill No. 16 of 2005. Parliament of Fiji, Suva, Monday, September 26, 2005. Accessed from http://www.parliament.gov.fj/hansard/viewhansard.aspx?hansardID=398&viewtype=full on 01/07/06.
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APPENDICES