Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

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

The Committee notes with concern that the Government’s report has not been received. It expects that the next report will contain full information on the matters raised in its previous comments.

Repetition

Article 1 of the Convention. Scope of application. Previously, the Committee noted that article 26(3)(a) of the Constitution prohibits direct or indirect discrimination. It also noted that under article 26(8)(c) and (f), a law is not inconsistent with the prohibition of discrimination on the ground that: (1) “it imposes a restriction on persons employed or engaged in a State service” or that (2) “it excludes persons from holding certain public offices”. Consequently, it asked the Government to indicate how such exceptions are applied in practice. The Committee notes the Government’s indication in its report that such exceptions concern, for instance, police officers (Police Act, 1965) who are prohibited from taking part in any political organization or electoral campaign, or from engaging in any other activity which is likely to interfere with the impartial discharge of their duties. The Committee recalls that the purpose of the Convention is to protect all persons against discrimination in employment and occupation on the basis of race, colour, sex, religion, political opinion, national extraction and social origin, with the possibility of extending its protection to discrimination on the basis of other grounds, and that no provision in the Convention limits its scope as regards individuals or branches of activity. It wishes to stress that, where certain categories of workers are excluded from the general protection of labour or employment law, it needs to be determined whether special laws or regulations apply to such groups, and whether they provide the same level of rights and protection as the general provisions (see General Survey of 2012 on the fundamental Conventions, paragraphs 733 and 743). The Committee asks the Government to indicate the manner in which the workers under the exceptions of article 26(8)(c) are protected in practice from discrimination in employment and occupation on the basis of the grounds listed in Article 1(1)(a) of the Convention.

Article 1(1)(a). Discrimination based on sex. Sexual harassment. Previously, the Committee asked the government to provide information on the progress achieved in relation to the extension of the six-month time limit to submit an employment grievance. It also asked the Government to consider reviewing the burden of proof that is currently imposed on the worker filing a complaint for sexual harassment (section 111(2) of the Employment Relations Act of 2007 (ERA)). The Committee notes once again the Government’s reference to the legislative framework with respect to sexual harassment, including section 76 of the ERA and the National Policy on Sexual Harassment in the Workplace of 2008. In this regard, the Committee takes due note of the ratification of the Violence and Harassment Convention, 2019 (No. 190), by the Government on 25 June 2020. The Committee asks again the Government to: (i) provide information on any progress achieved in relation to the extension of the six-month time limit to submit an employment grievance; (ii) consider reviewing the burden of proof which is currently imposed on the worker filing the sexual harassment complaint; and (ii) report on the measures taken to raise awareness among workers and employers about sexual harassment and on the cases of sexual harassment dealt with by labour inspectors and courts.

Article 1(1)(b). Discrimination based on real or perceived HIV status. The Committee notes the Government’s indication that the enforcement powers of the Ministry of Employment, Productivity and Industrial Relations, as foreseen the ERA, contributes to equal employment opportunity for all workers. The Ministry also enforces the national code of practice for HIV/AIDS in the workplace and section 63 of the Health and Safety at Work Act of1996. Moreover, the labour inspectors from the Labour Standard Services and Occupational Health and Safety conduct labour inspections and awareness activities for equal employment opportunity for all workers. The Government adds that this is a proactive approach to ensure that workers are informed of their rights at shop-floor level. The Committee asks the Government to: (i) continue to provide information on the measures taken to combat discrimination on the grounds of real or perceived HIV status in employment and occupation, including at the recruitment stage, and on measures taken to raise awareness about the provisions of national legislation, including the remedies available and the applicable penalties; and (ii) provide information on any cases of discrimination on the grounds of real or perceived HIV status brought to the knowledge of, or that have been identified by, labour inspectors.

Special measures. Persons with disabilities. The Government indicates that the Ministry of Women, Children and Poverty Alleviation provides grants to disabled children through care and protection allowances, school bus fare assistance, tuition free grants and free textbooks to all children, including children living with disabilities. In addition, section 84(4) of the ERA provides that any employer who employs 50 or more workers may employ physically disabled persons on a ratio of at least 2 per cent of the total number of workers employed. The Government also indicates that workers with disabilities have the same right as any workers without disabilities in terms of filing employment grievances and asking for equal pay for work of equal value. It adds that the Fiji National Council for disabled persons advocates for all persons with disabilities through inter-government awareness programmes with the Ministry of Employment Productivity and Industrial Relations, The Committee asks the Government to provide information on: (i) the results of the application of section 84(4) of the ERA in providing equal employment opportunities for persons with disabilities, both in the private and public sectors; as well as (ii) the activities of the Fiji National Council for disabled persons in the domain of employment and occupation.

Article 2. National policy for equality of opportunity and treatment. Gender equality. The Committee notes from the Fijian Beijing+25 National Report that the country’s ranking on the World Economic Forum’s Global Gender Gap Report has improved significantly from 2015, shifting 15 places up from 121 to 106 out of 187 countries in 2018. As of 2018, 20 per cent of parliamentary seats were held by women, and 77.3 per cent of adult women had reached at least a secondary level of education compared to 68.3 per cent of their male counterparts. In its Beijing+25 National Report, the Government also indicates that: (1) in 2017 unemployment rates were 7.8 per cent for women and 2.9 per cent for men; (2) the number of women in paid employment has declined steadily over the past years, from 39 per cent in 2002 to 33 per cent in 2011, and to 31.3 per cent in 2017, and that this is mainly linked to the work of women in the informal sector; (3) only 19 per cent of businesses are registered to women and most of those are micro and small businesses; and (4) data shows significant gender differentials in the labour force participation rates, with 76.4 per cent for men and 37.4 per cent for women. The Government also indicates that, as part of the National Gender Policy, in 2018 it reaffirmed the value of unpaid care and parental leave by taking measures to include provisions in the ERA to recognize 5 days of paternity leave, 5 days of family care leave, and an increase in maternity leave from 84 days to 92 days. Moreover, during the period 2014–18, a total of 6,900 women had accessed the South Pacific Business Development (SPBD) support towards microenterprises. The SPBD provided training and guidance to help women start, grow and maintain microbusinesses, build assets and finance home improvements and children’s education. The Government indicates it has also identified a number of barriers to women’s economic empowerment, in particular, greater burden of unpaid household and care work, lower levels of education and lower levels of access to market-related information. The Committee asks the Government to indicate the measures taken in the framework of the new Women’s Plan of Action, or any other measures to: (i) address obstacles to women’s employment, in particular patriarchal attitudes and gender stereotypes and the lack of access to productive resources, and (ii) enhance women’s economic empowerment and promote their access to equal opportunities in formal employment and decision-making positions. The Committee also asks the Government to provide statistics, disaggregated by sex, on the participation of men and women in education at all stages and in the various vocational training courses offered, as well as on the number of men and women who have filled vacancies following such training, including for jobs traditionally held by persons of the other sex.

National policy to promote equality of opportunity and treatment irrespective of race, colour and national extraction. The Committee recalls the adoption in 2008 of the Peoples’ Charter for Change, Peace and Progress, which aims to prohibit and eliminate discrimination, in particular racial discrimination, and to promote equal opportunities for all, including minority groups such as the “i-Taukei”, in relation to access to education, vocational training, employment and various occupations. The Government indicates that the Ministry for “i-Taukei” Affairs has put in place a number of programmes to promote equality in employment and occupation for all Fijian, regardless of race and ethnicity, including food vouchers for rural mothers and women who attend health facilities for prenatal care, training for rural women within the Women’s Resource Centre, and free-of-charge medical schemes to all Fijian who earn less than 20,000 Fijian dollars. The Committee asks the Government to continue to provide information on any national policy adopted recently to promote equality of opportunity in employment and occupation irrespective of race, colour and national exaction.

General observation of 2018. With regard to the above issues, and in more general terms, the Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction which was adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population.

The Committee draws the Government’s attention to its general observation of 2018 and requests the Government to provide information in response to the questions raised in that observation.

Article 3(a). Cooperation of employers’ and workers’ organizations. The Government indicates that, the workshop organized by the Fiji Commerce and Employers Federation (FCEF) has assisted employers in developing policies in relation to sexual harassment and discrimination in line with the ERA. The Compliance Unit within the Ministry of Employment, Productivity and Industrial Relations has conducted awareness-raising activities for workers and employers through labour inspection programmes to ensure that workers and employers understand the concept of compliance on issues related to sexual harassment and discrimination. The Committee takes note of this information.

Article 3(d). Promoting equality in employment under the control of a public authority. Previously, the Committee asked the Government to provide information on measures taken to ensure equality of opportunity and treatment of men and women from all ethnic groups in employment in the public service, as well as up-to-date statistics on the presence of men and women, from all ethnic groups, in the different categories, levels and grades in the public service. The Government indicates that the qualification requirements and process for appointment in the Civil Service are based on an open, transparent and competitive selection process, and that government ministries and departments do not maintain a register of their employees mentioning their ethnic or racial background. In this regard, the Committee refers its 2018 general observation acknowledging that, in certain Member States, legislation and procedures do not allow for the collection and publication of employment statistics disaggregated by ethnic origin. The Committee wishes to point out that qualitative research on the nature and extent of labour inequalities, including its underlying causes, is crucial to design and implement a relevant and effective national equality policy under Articles 2and3of the Convention, and monitor and evaluate its results. In addition to any statistical data respectful of confidentiality, the Committee asks the Government to provide: (i) copies of any dedicated surveys, studies or research undertaken to determine the nature, extent and causes of discrimination in the public service, and (ii) information on any measures taken or envisaged to ensure equality of opportunity and treatment of men and women from all ethnic groups in employment in the public service.

Articles 3 and 5. Equal access to education and vocational training. Affirmative action. Previously, the Committee noted that the Education (Establishment and Registration of Schools) Regulations, of 1966, which provide that, in the admission process, preference may be given to pupils of a particular race or creed, was still in force. It noted that according to the Government’s report, a draft Education Decree was being prepared to repeal the Education Act and all its subordinate legislation, including the 1966 Regulations. The Committee notes the Government’s indication that in Fiji there are 737 primary schools and 173 secondary schools, and that these schools do not practise race-based school enrolment of any form particularly given the anti-discrimination law in the Constitution. The Government adds that children also have the right to be enrolled into their school zones. The Government has also introduced the Toppers and the Tertiary Education and Loans Schemes providing equal opportunity for every Fijian to quality and accessible tertiary education. This scheme is intended to provide financing to Fijian students who have qualified for higher education in approved institutions of higher learning but are unable to support themselves financially. The Committee observes that the Government’s report contains no information on the legal reform of the education system, including the Education (Establishment and Registration of Schools) Regulations of 1966. It also notes that the United Nations Special Rapporteur on the right to education, in his 2016 Report following his mission to Fiji, commended the policy measures taken by the Government to rename schools which had ethnic names to eliminate schools based on ethnicity. The Special Rapporteur also indicated that education reforms had been rapidly advancing in Fiji; however, the underlying legal framework (mainly the Education Act of 1996) had not kept pace and needed to be modernized (A/HRC/32/37/Add.1, 27 May 2016, paragraphs 54 and 97). In light of the above, the Committee asks the Government to provide information on the progress made in the adoption of a new education legal framework, including the repeal or amendments of the Education (Establishment and Registration of Schools) Regulations of 1966.

Enforcement and application in practice. The Committee notes the Government’s indication that it plans to conduct a further 15,000 labour inspections from 2019 and in the next five years to ensure that the issues concerning labour complaints, including discrimination, are properly addressed by workers and employers. It also indicates that for the period of its report there has been no reported case of complaints in relation to discrimination. The Committee asks the Government to (i) provide information on the measures taken to enhance the capacity of the competent authorities, including judges, labour inspectors and other public officials, to identify and address cases of discrimination; and (ii) supply information on any judicial or administrative decisions involving the application of the principle of the Convention as well as on the number and type of infractions detected by labour inspection services and any remedies provided or sanctions imposed.