Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Fiji (Ratification: 2002)

Prohibited grounds of discrimination. Legislation. The Committee notes the Government’s indication that sections 6(2) and 75 of the Employment Relations Promulgation (ERP) of 2007, which both prohibit discrimination in employment and occupation in the private sector, can be read in conjunction with one another, and that a claim for discrimination can be brought under either provision. Recalling that the provisions in the Public Service Act, as amended by Decree No. 36 of 2011, are modelled on the provisions of the ERP, the Committee notes the Government’s indication that sections 10B(2) and 10C can also be read in conjunction with one another and can both be the basis of a discrimination claim. The Government further indicates that in the absence of any judicial or administrative decision interpreting the meaning “actual or supposed personal characteristics or circumstances” referred to in section 10C, the words should be given their literal meaning. The Committee notes the adoption of the new Constitution of 2013, of which article 26(3)(a) prohibits direct or indirect discrimination based on, among other grounds, race, social origin, colour, gender and religion. The Committee further notes that, under article 26(8)(c) and (f), a law is not inconsistent with the prohibition of discrimination on the ground that “it imposes a restriction on persons employed or engaged in a State service” or that “it excludes persons from holding certain public offices”. The Committee requests the Government to provide information on the meaning of the exceptions provided for in article 26(8)(c) and (f) and how they are applied in practice, including any interpretation given by the relevant judicial or administrative bodies.

Discrimination based on real or perceived HIV status. The Government indicates that the promotion of equal employment opportunities for people living with HIV and AIDS is ensured by the Ministry of Employment’s strategic business units, such as the Training Accreditation and Hygiene (TACH) Unit and the Labour Standard Services (LSS). Within the TACH Unit, the HIV and AIDS Unit provides awareness and training on HIV and AIDS in the workplace and advises employers and workers on the implementation of workplace policies to reduce the impact of HIV and AIDS on businesses. On the other hand, the LSS conducts audits to verify whether workplaces have an HIV and AIDS policy in place. The Committee further recalls the adoption of the HIV and AIDS Decree 2011 which prohibits direct and indirect discrimination against a person with HIV and AIDS or affected by HIV and AIDS, subject to the provisions regarding insurance and other risk assessment and “without prejudice to the safety and human rights of the public of Fiji and elsewhere” (section 21). In this regard, the Government indicates that no judicial case interpreting section 21 has been published. More generally, there are no published cases in relation to discrimination based on real or perceived HIV and AIDS status. The Committee requests the Government to provide information on the manner in which the provisions of section 21 of the 2011 Decree relating to the “safety and human rights of the public” are applied in practice, including any recent interpretation given by the courts. Recalling the Cabinet Memorandum dated 12 April 2012, which invited the Cabinet to adopt the HIV and AIDS Recommendation, 2010 (No. 200), to facilitate the prevention of HIV and AIDS in Fijian workplaces, the Committee once again requests the Government to provide information on the measures taken to follow-up on the 2012 Cabinet Memorandum. Please continue to provide specific information on the awareness-raising activities regarding HIV and AIDS undertaken and indicate the manner in which workers’ and employers’ organizations are involved in such activities. The Committee also requests the Government to continue providing information on any specific measures taken with a view to promoting equal employment opportunities for men and women living with HIV and AIDS and on any cases of discrimination based on real or perceived HIV and AIDS status in employment and occupation dealt with by the competent authorities.

Sexual harassment. The Committee notes the Government’s indication that it is looking into extending the time limit of six months to report employment grievances, including sexual harassment claims. The Committee further notes that the Ministry of Employment established in 2014 the Employment Relations Call Centre, responsible for raising awareness of sexual harassment in the workplace. The Committee notes from the statistical data provided that between 2012 and 2014 the Mediation Services Unit received only six complaints of sexual harassment, two of which were referred to the Employment Relations Tribunal. Recalling that a low number of complaints is likely to be due to a lack of awareness of rights, a lack of confidence in available legal remedies or difficulties of access to them in practice, or even fear of reprisals, the Committee requests the Government to continue taking measures to promote awareness of sexual harassment in the workplace and to provide information on the number of cases dealt with by the Mediation Services Unit and any other relevant authority. Please provide information on the progress achieved in relation to the extension of the six-month time limit to submit an employment grievance and, at the same time, please consider reviewing the burden of proof which is currently imposed on the worker filing the sexual harassment complaint.

Special measures. Persons with disabilities. In its previous comments, the Committee requested information on the implementation of the Inclusive Education Policy, which provides a framework ensuring quality education for students with disabilities. The Committee notes from the Government’s report that the implementation of the Policy included a series of consultation meetings with disabled persons’ organizations, as well as awareness programmes. The Government indicates that, by the end of 2013, 84 students with special needs were enrolled in inclusive schools, while 1,023 students were in special schools. Additionally, 31 mainstream schools currently provide teaching for students with special needs. The Government also indicates that it is envisaging providing incentives to employers to promote the employment of persons with disabilities through, for example, tax incentives. The Committee requests the Government to continue providing information on any additional measures taken to promote equal opportunities for persons with disabilities in employment and occupation, including any incentive scheme put in place, and the results achieved.

Cooperation with workers’ and employers’ organizations. The Committee notes that, in reply to its previous comments, the Government indicates that the Employment Relations Advisory Board has, on occasion, provided recommendations to the social partners for the fulfilment of decent and productive work for all. The Government adds that the Fiji Commerce and Employer Federation (FCEF) identified discrimination and sexual harassment as key issues in the workplace and assisted its members by organizing workshops and preparing publications to raise awareness and eliminate discrimination at work. The FCEF has also organized workshops for workers’ organizations to raise awareness among workers and help them gain basic knowledge of the issues and the means of redress. The Committee requests the Government to send information on the impact of the workshops organized by the FCEF. Please also continue providing information on the specific activities undertaken by employers’ and workers’ organizations concerning discrimination and equal opportunity and treatment in employment and occupation, including any awareness-raising measures.

Enforcement and application in practice. The Committee notes that in 2014 the Ministry of Employment was allocated a US$5.7 million budget increase, with which it was able to employ nine additional labour inspectors, each to conduct four inspections a week. The Committee recalls that between 2008 and 2012, only 13 cases of discrimination were brought to the Employment Relations Tribunal and notes from the Government’s report that in 2013 there were only two published cases of discrimination, and none in 2014. According to the Government, the low number of complaints is due to difficulties with data collection, and progressive steps should be taken to improve the system. The Committee requests the Government to provide information on the activities of the labour inspectorate, including the number and nature of the violations detected relating to discrimination in employment and occupation, and their outcome. The Committee further requests the Government to continue taking measures to ensure that workers have appropriate access to justice and means of redress in cases of discrimination. Please also keep the Committee informed of any improvements made in the data collection system and continue providing information on the number of discrimination cases, if possible disaggregated by grounds of discrimination, that are dealt with by the competent authorities, as well as the remedies granted and sanctions applied.