Working Conditions (Hotels and Restaurants) Convention, 1991 (No. 172) - Fiji (RATIFICATION: 2008)

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Article 2 of the Convention. Exclusions. In response to the Committee’s 2013 direct request regarding progress made towards broader application of the Convention, the Government indicates that the voices and concerns of the employers and workers in hotels and restaurant industries are heard at the national level through their representatives in the tripartite Employment Relations Advisory Board. The Government refers to factors such as the small population of Fiji, indicating that it is mindful of the application of the Convention and strives to achieve a balanced approach, in light of its limited resources. While noting the Government’s explanations, the Committee nevertheless invites the Government to indicate in subsequent reports any progress made toward broadening the scope of application of the Convention.

Article 4(2) and (3). Reasonable normal hours of work and overtime. Reasonable minimum weekly rest periods. The Committee recalls its 2013 direct request, in which it noted the Government’s explanation that, while the Wages Regulation (Hotel and Catering Trades) Order 2012, does not provide a definition of the term “hours of work”, or establish a maximum amount of authorized overtime hours, the Government was in the process of amending the Employment Regulations Promulgation, 2007 and, following the possible replacement of the ten existing Wages Councils by a Wages Forum, proposals would be put forward to the social partners regarding limits on overtime work. With respect to the issue of reasonable weekly rest, the Committee refers to its 2013 comments, in which it noted that, in view of the physical and mental strain resulting from the rhythm of work in the hotel and catering industry, particularly during peak periods of business, special consideration should be given to the need for regular relaxation for the personnel concerned and therefore weekly rest should not be granted at unreasonably lengthy intervals. In response to the issues raised by the Committee concerning the application of Article 4(2) and (3), the Government indicates that the tripartite Employment Relations Advisory Board is in the process of reviewing the relevant labour laws. The Committee therefore once again requests that the Government take all appropriate steps in a timely manner to ensure that full effect is given to Article 4(2) and (3) of the Convention. In particular, it invites the Committee to consider establishing a definition of “hours of work” in national legislation relating to the hotel and restaurant sector that is aligned with that set forth in Article 4(1) of the Convention and Article 10(1) of the Working Conditions (Hotels and Restaurants) Recommendation, 1991 (No. 179), which envisage the granting of weekly rest. It requests the Government to provide information in its next report on progress made in revising the relevant labour legislation governing working conditions in the hotel and restaurant sector, and to provide copies of any relevant legislation or regulations adopted. The Committee further requests the Government to provide statistical information on compensation for overtime hours worked in establishments covered under the Convention, as well as on the number of additional hours performed on average. The Committee invites the Government to further examine and consider – in consultation with the employers’ and workers’ organizations concerned and while taking into account national conditions and the specificities of the hotel and restaurant sector – the development and implementation of measures to ensure that hotel and restaurant workers to whom special weekly rest schemes apply do not work for unreasonably long periods without receiving the rest periods to which they are entitled.

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Article 2 of the Convention. Exclusion possibility. The Committee notes that section 2 of the Wages Regulation (Hotel and Catering Trades) Order 2012 provides that all workers whose rate of remuneration without any allowances, bonus, overtime pay or additional benefits exceeds 250 Fijian Dollars (FJD) (approximately US$130) per week are excluded from its scope of application. According to the Government’s first report, those excluded are remunerated well above the minimum pay rates fixed by the order and the exclusion applies specifically to those holding managerial positions. While noting the Government’s explanations, the Committee wishes to recall that in subsequent reports the Government is expected to indicate any progress which may have been made towards wider application, as prescribed by Article 2(2) of the Convention.

Article 4(2). Reasonable normal hours of work and overtime. Further to its previous comment, the Committee notes the Government’s explanations that, while the 2012 Wages Regulation Order for hotel and restaurant workers does not specifically define the term “hours of work” or prescribe a maximum amount of authorized overtime hours, the Government is in the process of amending the Employment Regulations Promulgation 2007, and that following the possible replacement of the current ten Wages Councils by a Wages Forum, proposals will be put forth to the social partners concerning limitations on overtime work. The Committee requests the Government to take all appropriate steps in a timely manner in order to ensure that full effect is given to this provision of the Convention.

Article 4(3). Reasonable minimum weekly rest periods. The Committee recalls its previous comment in which it noted that, under the Wages Regulation Order for hotel and catering staff, workers employed in outer islands are entitled to three consecutive days off after having worked for 12 consecutive days, or five consecutive days off after having worked for 24 consecutive days. While noting the Government’s explanations that outer island workers are usually employed far from home making it impractical for them to have a 24-hour rest period in every seven day period because of the travel time, the Committee considers that in view of the physical and mental strain resulting from the rhythm of work in the hotel and catering industry, particularly during peak periods of business, special consideration should be given to the need for regular relaxation of the personnel concerned and therefore weekly rest should not be granted at unreasonably lengthy intervals. The Committee trusts that the Government will further examine – in consultation with the employers’ and workers’ organizations concerned and while taking into account national conditions and the specificities of the hotel industry – possible measures to ensure that hotel and restaurant workers to whom special weekly rest schemes apply do not work for unreasonably long periods without receiving the rest periods to which they are entitled.

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Article 4(2) of the Convention. Reasonable normal hours of work and overtime. The Committee notes that, although section 9 of the Wages Regulation (Hotel and Catering Trades) Order 2008 provides for overtime pay rates (i.e. 150 per cent of the worker’s normal rate of remuneration for the first four hours worked in excess of eight hours each day, and double the worker’s normal rate for all overtime worked thereafter on such day), there seems to exist no overall limit on the maximum number of additional hours that a worker may be requested to perform per day or week. The Committee is of the opinion that the absence of specific limits on the maximum number of permissible overtime, together with the lack of specific provisions on minimum daily rest, may be deemed problematic as it carries a certain risk of abuse. The Committee recalls, in this connection, that the Hours of Work (Industry) Convention, 1919 (No. 1), and the Hours of Work (Commerce and Offices) Convention, 1930 (No. 30), clearly establish that, apart from being remunerated at a higher rate, overtime should only be authorized within prescribed limits. The Committee accordingly requests the Government to provide additional explanations in this regard.

Article 4(3). Minimum daily and weekly rest periods. The Committee notes that neither the Employment Relations Promulgation 2007 (No. 36 of 2007), nor the Wages Regulation (Hotel and Catering Trades) Order 2008, appear to regulate the minimum period of daily rest. The Committee requests the Government to clarify how the Convention is given effect on this point.

In addition, with respect to weekly rest, the Committee notes that under section 5(2) of the Wages Regulation (Hotel and Catering Trades) Order 2008, workers employed in outer islands are entitled to three consecutive days off after having worked for 12 consecutive days, or five consecutive days off after having worked for 24 consecutive days. The Committee considers that an arrangement whereby workers are granted a period of “weekly” rest nearly once a month may not be consistent with the letter and the spirit of the Convention which seeks to ensure that workers enjoy a minimum of rest and leisure in every seven-day period. In this connection, the Committee wishes to refer to Paragraph 3 of the Weekly Rest (Commerce and Offices) Recommendation, 1957 (No. 103), which indicates that persons to whom special weekly rest schemes apply should not work for more than three weeks without receiving the rest periods to which they are entitled. The Committee, therefore, requests the Government to provide additional explanations in this respect.

Article 4(4). Advance notice of working schedule. The Committee notes that, apart from section 5(1) of the Wages Regulation (Hotel and Catering Trades) Order 2008, which expressly provides for advance notice (ranging from one week to one month) to be given with respect to weekly rest, there seems to exist no other provision guaranteeing that workers are notified sufficiently in advance of the working schedule applicable to them. The Committee therefore requests the Government to indicate how effect is given to this requirement of the Convention.

Parts IV and V of the report form. Court decisions and practical application. The Committee notes the copies of decisions of the Employment Tribunal concerning employment grievances of hotel and restaurant employees. It also notes the statistical information according to which, since the entry into force of the Employment Relations Promulgation in 2008, 93 complaints have been filed by workers covered by the Convention with the Standards and Compliance Unit of the Ministry of Labour, Industrial Relations and Employment. These complaints concern in particular the non-payment of annual leave pay, payment below the minimum rates prescribed by the Wages Regulation (Hotel and Catering Trades) Order 2008, and unfair and unjustified dismissal, of which 84 have been amicably resolved by the labour inspectors. The Committee would be grateful if the Government would continue to provide up-to-date information on the manner in which the Convention is applied and enforced in practice.