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

Individual Case (CAS) - Discussion: 2011, Publication: 100th ILC session (2011)

A Government representative indicated that in 2008 the National Council for Building a Better Fiji (NCBBF) had adopted the People’s Charter for Change, Peace and Progress (People’s Charter) which aimed to build a society based on equality of opportunity for all Fijian citizens pursuant to the findings and recommendations contained in the Report on the State of the Nation and the Economy (SNE Report). The Charter contained key measures and actions to be taken, such as the promulgation of an anti-discrimination law; the development of education, vocational training and job placement; the promotion of multicultural education and the gradual phasing out of institutional names that denoted racial affiliations; and the elimination of racial and inappropriate categorization and profiling in government records and registers. Other measures included the increase of the participation of women at all levels of decision-making; the enactment of a code of conduct for public servants and persons who held statutory appointments; the reform of the public sector, including the removal of any political interference and the compulsory training of civil servants; the development of cooperation between the Government and the private sector; and the introduction of a national minimum wage. The Charter also contained specific measures concerning indigenous peoples and their institutions. The implementation of the measures envisaged by the Charter included: a new non-racially based Constitution which guaranteed a system of one person one vote; publicawareness campaigns to promote national identity; national anthem and flag ceremonies to be observed in schools and important national state functions as a way of promoting national identity; elimination of race-based names of primary and secondary schools; and a common name “Fijian” to be used by all citizens of Fiji irrespective of ethnic origin.

Concrete steps that had been taken by the Government to further these strategies included the following: renaming the country as “Fiji” and providing the name “Fijian”, referring to all citizens of Fiji and not just the indigenous peoples; removing racial and inappropriate categorization and profiling in government records and registers, for example, forms that had required persons of Indian descent to state their father’s name had been withdrawn; promoting Fiji Day celebrations which had become an annual event. Most schools and organizations in the country were observing Fiji flag-raising ceremonies and the singing of the national anthem. The Ministry of Education, Culture, Art and Heritage had advanced many of the strategies towards national identity and social cohesion through such things as appropriate curriculum development and affirmative programmes, addressing teaching of the vernacular languages, comparative religious studies, and establishing special schools and institutions, including strengthening technical and vocational education and training. A new syllabus called “Healthy living and physical education for classes 3 and 4” had been developed and included human growth and development, building healthy relationships, safety, personal and community health and physical education. The Inclusive Education Policy also ensured education for pupils with disabilities and the Ministry observed a zero tolerance policy on abuse of children and declared drug-free zones in all education institutions. Mixed race and religious schools were being encouraged. An anti-discrimination law would be promulgated. The two main vernacular languages were to be taught in the education curriculum. The encouragement and promotion of religious freedom and understanding in schools and society would be encouraged and promoted, and the introduction of an education curriculum to include multicultural and comparative religious studies courses was also foreseen.

With regard to the National Policy on Sexual Harassment in the Workplace, which had been developed in 2008 in consultation with the social partners, the speaker informed the Committee that to date, only two cases concerning sexual harassment had been brought before the Employment Relations Tribunal and four cases had been settled with the Mediation Service in 2011. With an increase in awareness of the Policy on Sexual Harassment, it was expected that complaints would increase. With regard to the numerous measures proposed in the People’s Charter to promote equal access to education and training, the speaker indicated that his Government intended to introduce extensive reforms to the education system over the next two years. This would include a review of all subsidiary laws including the Education (Establishment and Registration of Schools) Regulations, 1966, which still allowed for preference to be given to pupils of a particular race or creed. The Ministry of Education had implemented a range of educational programmes under social justice and affirmative action programmes to improve access and retention, promote national and cultural identity and citizenship, implement curriculum guidelines and strengthen assessment of learning to improve student performance, enhance rural education programmes and improve the quality of technical and vocational education and training programmes.

With regard to vocational education and training, the speaker indicated that in 2010, a total of 69 vocational centres had received grant assistance from the Government with a student roll of 2,712, representing an increase from 2,302 in 2009. There had also been an increase in the enrolment of students with special needs in 2010. The total number of students enrolled in all school levels, from early childhood intervention to tertiary level, had increased from 1,144 in 2009 to 1,182 in 2010. The Ministry of Education had abolished in 2011 all external examinations in primary schools including form 4 (year 10) which would significantly reduce the drop-out rate of pupils and promote full primary and secondary education for the first time in Fiji. Together with free tuition and a free transport and textbook scheme introduced by the Government in 2011, it was anticipated that this reform would significantly boost access for both boys and girls in the school system. Complementing these initiatives, Fiji had recently implemented the ILO TACKLE child labour project and was responsible for, among other things, the elimination of child labour in all workplaces. This was complemented with the Ministry of Education’s project to promote child education, as well as an active project to prevent the sexual exploitation of children within the community at large. There was also ongoing consultation on the upgrading and improvement of vocational training programmes offered in special schools. The number of pupils enrolled in vocational training had increased from 201 in 2008 to 262 in 2010. Finally, an Inclusive Education Policy had been approved by the Government in order to ensure and strengthen quality education for students with disabilities and address the needs of pupils with special needs in schools throughout Fiji. Implementation of the new Inclusive Policy would begin this year through the following measures identified by the Ministry of Education: improving the provision of re-education and vocational training services so as to meet the needs of people with disabilities; providing incentives to employers to employ people with disabilities; implementing a national five-year plan of action for people with disabilities; and developing and implementing a policy for persons with disabilities, including regulations to require appropriate access to all public buildings and places.

The Worker members recalled that the Government had ratified the Convention in 2002 and that it was the first time that the Government had been required to explain to the Committee the manner in which it was applying the Convention. It was a case in which the Committee of Experts had noted progress, in particular, with regard to: (i) the adoption, on 15 December 2008, by the NCBFB of the People’s Charter, the aim of which was to build a society based on equality of opportunity and peace for all the citizens of Fiji; and (ii) the establishment of the National Policy on Sexual Harassment in the Workplace prepared in consultation with the social partners. The Committee of Experts also referred to the issue of equal access to education and vocational training, which was covered by the definition of employment and occupation contained in Article 1(3) of the Convention. The Committee of Experts had expressed doubts concerning the implementation of the principles contained in the People’s Charter, which did not seem to have resulted in the reform of the education system called for in the SNE Report. No changes had yet been made to the education system which had been established by the Education Regulations, 1966, so it was likely that priority continued to be given to pupils of a particular race or creed in the admission process. Noting that, to judge by the report of the Committee of Experts, the situation described seemed reassuring on the whole, the Worker members wished to emphasize that the reality was very different. Even though the People’s Charter existed, in many ways it was just window dressing, aimed chiefly at promoting the country’s image in the eyes of the international community. The situation described in the report contrasted with the action taken since 2006 by the ruling military regime, which had systematically removed all its opponents. The country was currently under a state of emergency in which all power was vested in the hands of the President, who had assumed total power on the pretext of maintaining public order. The presidential decrees which were reviewed on a monthly basis were therefore not subjected to any judicial control regarding their legality or constitutionality.

The Worker members indicated that the public sector trade unions had been deprived of the possibility of representing or defending their members in situations of discrimination since they were now excluded from the scope of the Employment Relations Promulgation. There was therefore no possible recourse against cases of discrimination or sexual harassment or any means of seeking maternity protection. Such an exclusion came within the scope of Article 1(1)(b) of the Convention inasmuch as public sector workers were deprived of the right to equality of treatment in employment and occupation. Moreover, they had also been stripped of their right to be defended and hence there was an indirect violation of trade union rights in the country. The Worker members denounced the adoption of Decree No. 21 of 16 May 2011 revising the Employment Relations Promulgation, 2007. Decree No. 21 applied generally to employers and workers, including workers employed by the local authorities, central authorities and the sugar industry, but excluded the Government and certain categories of workers, such as the police and the army, from its scope. But in general it was a decree of exclusion since one of its effects was to exclude 15,000 public service workers from the scope of labour law. Indeed, following the introduction of the new section 266 in the Promulgation of 2007, the aforementioned workers no longer had any legal basis for claiming their rights. In addition, the Government’s action had also had the effect of withdrawing certain areas from the courts’ sphere of competence. Protection against discrimination was a fundamental human right which was now being denied to public sector workers. The Worker members recalled that, according to the ILO, “discrimination results in and reinforces inequalities. The freedom of human beings to develop their capabilities and to choose and pursue their professional and personal aspirations is restricted, without regard for ability. Skills and competencies cannot be developed, rewards to work are denied and a sense of humiliation, frustration and powerlessness takes over”. The Worker members expected the Government to seek a consensus solution in order to bring practice into line with the requirements of the Convention, since the situation clearly no longer corresponded to the one described in the Committee of Experts’ report.

The Employer members recalled that this was the first time this case was being discussed before the Committee, even though the Committee of Experts had formulated observations regarding Fiji’s compliance with the Convention in 2007, 2010 and 2011, welcoming the adoption in December 2008 of the People’s Charter, which aimed to build a society based on equality of opportunity for all Fijian citizens. Noting the information provided by the Government on the content of the Charter, the Employer members welcomed its adoption and encouraged the Government to provide the ILO with information on the implementation of the measures it envisaged in order to prohibit discrimination and to promote equal opportunity for all in relation to access to education, vocational training and employment, as well as on the impact of such measures in practice. The Employer members noted with interest the adoption by the Government of the 2008 National Policy on Sexual Harassment in the Workplace. Welcoming the information provided by the Government to the Committee on the implementation of this Policy in practice, the Employer members looked forward to the provision by the Government of additional information on this issue. With regard to the measures proposed in the People’s Charter to ensure access to education for all, the Employer members noted that, while the Government had indicated that race-based schools had been eliminated, the Education (Establishment and Registration of Schools) Regulations, 1966, still provided in law that the admission process in the educational system allowed for preference to be given to students of a particular race or creed. The Government had stated that this did not happen in practice. The Employer members encouraged the Government to ensure, in connection with the proposed educational reform, that equal access to education and vocational training be granted to both men and women of all ethnic origins and that such regulations be repealed as a result. They also encouraged the Government to provide the ILO with information in this regard.

The Employer members also considered it unfortunate that, as noted by the Committee of Experts, based on a 2007 census, the participation of men in the labour force was notably higher than the participation of women and that the unemployment rate of women was double the rate of men. It was also unfortunate that the Government had apparently not replied to the requests of the Committee of Experts for information on the concrete measures taken by the Government to promote gender equality in employment and occupation. Noting, moreover, that the Government representative had not addressed this issue before this Committee, the Employer members encouraged the Government to provide a reply in this regard to the Committee of Experts. The Employer members welcomed the enactment, in April 2007, of the Employment Relations Promulgation, which prohibited direct and indirect discrimination in employment and occupation, as well as the information provided by the Government on training and awareness-raising initiatives in respect of the implementation of the Promulgation in 2008 and 2009, and expressed the hope that the Government would continue to provide information about the implementation and enforcement of this legislation so that the situation – both in law and in practice – could continue to be reviewed in order to ensure compliance with the Convention. Noting with respect to employment in the public sector that the Government had not provided any additional information to the Committee, apart that all Fiji nationals were afforded equal opportunity to enter the public sector and that selection was based on merit, the Employer members encouraged the Government to provide information on the measures taken to address equality of opportunity and treatment of men and women of all ethnic groups in the public sector so as to allow for a better understanding of compliance with the Convention in this respect.

The Worker member of the United Kingdom noted that there had been a significant deterioration in the situation in Fiji since the last examination of this case by the Committee of Experts. She emphasized that no measures had been taken to remove discrimination in access to education and training on grounds of race, creed or gender, as requested by the Committee of Experts. On the contrary, equality of access had become less likely, as the rise in school fees meant that schooling was out of reach for many, and a large number of children, in particular those from ethnic minorities, were forced to drop out and engage in child labour. In addition to discrimination in access to education, there was also a deplorable lack of legal protection of workers in Fiji. Claims stemming from discrimination and harassment, together with other employment issues, could no longer be brought to court by any civil service worker and access to the independent forums of the Employment Relations Tribunal and Court was denied to public service workers. This was due to Decree No. 21 of 2011 which simply outlawed claims which challenged Government or civil service decisions and annulled existing Court or Tribunal Orders against state bodies. In one stroke, public servants had been prevented from complaining about discrimination or other abuses in their working conditions, and those who had already proved their case were immediately deprived of their remedy. Furthermore, the work of the Human Rights Commission was in a state of “government-induced coma” and kept barely alive. The speaker regretted that the Government had not taken any steps to implement the key measures proposed in the People’s Charter. The promulgation of an anti-discrimination act had not taken place and there had been no progressive development of education and vocational training, nor any elimination of racial or other inappropriate categorization and profiling. Instead, fundamental freedoms of workers had been curtailed. The speaker expressed her concern over the fact that, along with other trade unionists, her colleagues in the two teachers’ unions suffered continuous discrimination and harassment in their attempts to work within an education system built on the principles of equality and human rights, with dignity and fairness for all. This was illustrated by the suspension and dismissal of Mr Tevita Koroi, President of the Fijian Teachers’ Association, who had no hope of legal redress under Decree No. 21. He had been arrested and threatened with violence and the required permits for union meetings had been refused or issued late, with union officials prevented from travelling to attend meetings. The speaker emphasized that there was widespread interference in the organization of workers in other sectors, such as the sugar industry, often through military intervention, intimidation and violence.

With regard to the adoption of the 2008 National Policy on Sexual Harassment, the speaker stated that the Fijian Trade Union Congress was unaware of one single case of sexual harassment being pursued as a result of the Policy. This was an indication of a complete failure to implement measures to allow complaints to come forward. Furthermore, pay discrimination continued and, in the case of teachers, the existing wage discrimination had deepened as a result of the failure to implement the agreement reached after the 2003 job evaluation exercise which had prevented the adjustment of allowances in rural areas. In conclusion, the speaker emphasized that equality in the workplace could only begin to flourish in conditions of dignity and guaranteed freedoms, and that without respect for the rights of workers to complain about their treatment at work, or to organize around the issues that concerned them, Fiji could not take real steps towards the development of measures to combat discrimination.

An observer representing Public Services International (PSI) referred to Decree No. 21 which excluded the 15,000 civil servants working in the Fiji government ministries from the benefits and rights contained in the Employment Relations Promulgation, 2007 and thus, by extension, from the rights and benefits envisaged in the People’s Charter. Under Decree No. 21, civil servants would no longer enjoy the right to equal employment opportunities, the right to freedom of association or the right to collective bargaining. The Promulgation of 2007, aiming at eliminating discrimination on grounds of ethnic origin, sex, religion, age, disability, HIV and AIDS or sexual orientation, as well as prohibiting sexual harassment, promoting equal pay, assuring maternity protection and minimum wages, would no longer apply to civil servants. This group had, through their unions, played a key role in the development of the 2008 National Policy on Sexual Harassment and it was, in this regard, ironic that they should now be excluded from it. In addition, Decree No. 21 excluded the civil servants and their unions from taking action, or filing claims, disputes or grievances of any form against the Government, denying them access to the Employment Relations Tribunal, the Employment Relations Court and any other adjudication body. Any claims or awards which were under way at the time of the promulgation of Decree No. 21 would, additionally, be terminated. Public service employees were thereby denied any mechanism to resolve their grievances against decisions of public authorities, as the Public Service Disciplinary Tribunal could not be said to provide such a mechanism since its role was confined to reviewing disciplinary measures taken against employees. The State, which should be setting the equality standard for all other employers, had hence effectively decided to discriminate against its own employees. The adoption of Decree No. 21 contradicted the essential role that trade unions played in promoting equality. In the absence of legislation, it was trade unions, through social dialogue and collective bargaining, that had advanced the cause of equality. Through collective bargaining they had achieved equality outcomes over and above those contained in the legislation and stood as the enforcers of legislation and agreements aimed at achieving equality. Furthermore, the speaker recalled that the Fiji National Provident Fund was the only social security fund for workers. Under current proposals the fund’s annuity rate of 15 per cent would be reduced to 9 per cent. This drastic reduction would represent a gross injustice to the workers who had contributed to the fund over the years in the expectation that they would receive an adequate pension on retirement and live in dignity in their old age. The proposal had also to be seen in the context of section 15 of Decree No. 6 of 2009, which introduced a compulsory retirement age of 55 for civil servants. These two measures combined would serve to ensure that the majority of pensioners would retire in poverty. It was regrettable to note that 65 per cent of workers in fulltime employment were earning wages below the poverty line and that 15 per cent of the population lived in squatter settlements. In conclusion, while the ILO had long recognized the principles of freedom of association and collective bargaining as being fundamental for the development of all other labour rights, the amendments to the Promulgation of 2007, introduced by Decree No. 21, stood in marked contrast to these principles.

The Worker member of Australia associated herself with the concerns expressed by the Worker members over the failure of the authorities to comply with the Convention. Referring to the issues raised by the Committee of Experts in relation to the adoption of the People’s Charter, the speaker noted that little had been done to implement it in law and practice. The same was also the case with the 2008 National Policy on Sexual Harassment. Both the Committee of Experts and the United Nations Committee on the Elimination of Discrimination against Women had expressed concern at the absence of specific legal provisions giving effect to this Policy, as well as the associated absence of any concrete measures to address sexual harassment at the workplace. In the context of the need to ensure access to complaint mechanisms with respect to sexual harassment, she recalled that the Fijian Human Rights Commission had been established under the 1997 Constitution to oversee and protect human rights within the country. Since the Constitution’s abrogation in 2009, and despite the revival of the Commission by a presidential decree, this Commission no longer had the legitimacy or authority through which to promote or protect human rights in the country, including the right to be free from discrimination in employment and occupation. Furthermore, the speaker regretted the existence of anti-union discrimination and discrimination on the basis of political opinion, which were often interwoven, pervasive and intensifying. Workers were often compelled to choose between their job and their role in the trade union and any trade unionist who publicly criticized the regime risked being suspended from their job, preventing them from practicing their profession or earning a decent income with which to support themselves or their families. With these developments in mind, it was very difficult to see how the Fijian authorities could effectively formulate and implement measures to address discrimination in employment and occupation, in particular with regard to their capacity to engage in social dialogue with respect to any proposed laws and policies relevant to the Convention. Consultations could hardly be considered to be genuine in a country where interference with union structures and activities was increasingly common and where those who sought to represent workers were intimidated and feared for their safety and that of their families. In this regard, the speaker questioned to what extent it was possible to effectively recognize and protect the rights of workers in accordance with the Convention in a country where the rule of law was fragile at best; where the interim Government had suspended the Constitution and ruled by decree; where the courts were prevented from exercising jurisdiction over a wide range of matters; where confidence in the independence and integrity of the judiciary was declining daily; where there was no freedom of the media; and where the rights of workers to access effective and impartial dispute resolution mechanisms, including those with respect to complaints concerning discrimination, and to be represented by organizations of their own choosing, were being significantly curtailed. In conclusion, while recognizing the Government’s initiative, through the adoption of the People’s Charter and the National Policy on Sexual Harassment, to take steps to bring national law closer to compliance with the Convention, the speaker doubted, in light of the prevailing political climate, that the authorities had the capacity to address discrimination in employment and occupation on any of the seven grounds identified in the Convention.

An observer representing the International Trade Union Confederation (ITUC) focused on the realities on the ground and the limitations faced by trade unions in dealing effectively with discrimination and unfair treatment of workers. While the social partners had been in the process of reviewing various provisions of the Employment Relations Promulgation, 2007, as requested by the Committee of Experts, the Government had imposed Decree No. 21, which excluded public sector workers from the provisions of the Employment Relations Promulgation, thus denying them any rights under this instrument, including the right to equal remuneration and equal employment opportunities and protection from any form of discrimination. Workers or their unions in the public sector no longer had the right to challenge any decision of the Government in any court, even when they might have suffered discrimination or unfair treatment. Tripartite consultations had been undermined and were almost non-existent, while the Government unilaterally issued and imposed decrees which did not comply with core labour standards or fundamental human rights. Similarly, Decrees Nos 6, 9, 10 and 25 of 2009 did not allow any union or workers in the public sector, including Government-owned entities and the sugar industry, to challenge any management decision where any action was taken in the guise of restructuring. This again included cases of discrimination, unequal or unfair employment opportunities, redundancies and denial of equal remuneration. All these decrees summarily terminated any pending cases before the arbitration tribunal or the Labour Court. The Public Emergency Regulations, which had been in existence for the last 27 months, restricted and, in some cases, denied the rights of workers and their unions to convene meetings to discuss and address these issues. They also denied workers the right to freedom of speech, assembly and any form of industrial action. The media were also denied freedom of expression. Any breach of the Public Emergency Regulations would render the union and its officials liable to prosecution and persecution. With regard to the comments of the Committee of Experts on sexual harassment and the implementation of the provisions of the Employment Relations Promulgation, he indicated that the Government had totally excluded all public sector workers from these provisions through the abovementioned decrees. As a result, the question of implementation raised by the Committee was redundant. Workers no longer enjoyed this protection in the public sector. In the private sector, these rights continued to exist for the time being in the statutes but, in practice, there were very few isolated cases, if any, where any sexual harassment rulings had been handed down, and the implementation of the policies remained a far-fetched dream. The fact of the matter was that workers faced insecurity of employment because their fundamental rights had been abrogated and were, therefore, unlikely to raise any complaints with their employers or their unions for fear of reprisals, including intimidation and termination of employment. It was impossible to talk about non- discrimination and equality in this environment. The noble principles proclaimed in the People’s Charter were just beautiful words designed to mislead the international community. The speaker asserted that many citizens who had dared to air criticisms of government policies, including himself, had faced summary arrests by the military, torture and beatings in military camps. People lived in fear and could not speak out against such atrocities or against any form of discrimination or unfair or unequal opportunity. Finally, he stated that public sector posts were often filled on the basis of political criteria rather than merit, and this explained the large number of military officers holding senior government positions.

The Government representative indicated that it was obvious from the discussion that the motivation of certain speakers was related to regional politics rather than the steps taken by the Government in conformity with the Convention. He would therefore provide replies only on selected points. The statements made regarding the state of emergency in the country had not been accurate. A public emergency regulation remained in force for 30 days at a time, after which the President was being advised on whether the state of emergency should continue, depending on the evolution of the security situation. At this moment, the state of emergency was in force and therefore some rights, such as freedom of association, were being restricted. With regard to the Education (Establishment and Registration of Schools) Regulations, 1966, which provided that, in the admission process, preference might be given to pupils of a particular race or creed, his Government appreciated that this instrument needed to be reformed in the framework of the wider reform of the education system. The Government was committed to preventing discrimination on any grounds whatsoever. The Ministry of Education had a firm policy that no school should apply the policy contained in the regulations and made sure that no school did so. With regard to the provisions of Decree No. 21, he specified that this amendment had not affected the functioning of the public service disciplinary tribunals set up in 2008 to deal with matters concerning public sector workers and maintained avenues of redress, such as the Court of Appeal and the High Court. The amendment did prevent, however, aggrieved parties from starting the process all over again before the Employment Relations Tribunal, in order to avoid a duplication of procedures. The problem of poverty raised by some speakers was not specific to Fiji, which was a developing country, and was working to eliminate poverty through, for instance, free textbooks distributed to pupils, especially in rural areas so as to promote equal access to education. With regard to the case of Mr Tevita Koroi, his Government had already responded in writing to the Committee on Freedom of Association in relation to this case (No. 2723) and would not go into detail on this issue. With regard to the comments made on the independence of the judiciary, he emphasized that these allegations were unfounded and irrelevant to the discussion. Even though such allegations were being made with monotonous regularity, they were never accompanied by concrete examples.

The Employer members emphasized that, while the adoption of the People’s Charter in 2008 had been welcomed, the Government was now called upon to provide information on the implementation of the measures required by the Charter, such as the adoption of an anti-discrimination act, so that the Committee of Experts could review the Government’s compliance with the Convention. While the Government had provided some information to the Committee about the impact of Decree No. 21, the Employer members urged the Government to take measures to promote both equality in employment and occupation for persons of all ethnic origins and gender equality. The Employer members remained concerned about the impact of Decree No. 21 on the protection included in the Employment Relations Promulgation and encouraged the Government to provide the ILO with additional information regarding Decree No. 21 and its impact on equality of opportunity and treatment in public sector employment so that compliance with the Convention could be assessed.

The Worker members recalled that the case under discussion showed how the situation in a country, as described in a report, could change completely within just a few months on account of the authoritarian regime in power. Yet, in the interests of the workers, a commonly agreed solution should be found to the reform of the country’s legislation, including the possibility of reverting to the original wording of the Employment Relations Promulgation, 2007. As noted in the report of the Committee of Experts, the People’s Charter, which aimed to build a society based on equality of opportunity and peace for all Fijian citizens, offered a suitable working basis. It remained to apply the principles embodied in the Charter to the reality of workers’ everyday lives. The Government should agree to enter into a tripartite dialogue with ILO assistance, and repeal, not just the presidential decrees so as to ensure compliance with the Convention, but also the laws on freedom of association and on collective bargaining. The Government should guarantee access to justice for all public and private sector workers so that they could assert their rights retroactively and thus neutralize the impact of Decree No. 21. Finally, the Worker members called on the Government to provide all the information requested by the Committee of Experts for its next session in November–December 2011. That information should cover the way the national policy on sexual harassment was being enforced at workplaces, and the implementation of the reform of the educational system, especially the measures designed to guarantee equal access to education and vocational training for boys and girls, men and women, of all ethnic groups, as well as the effect of those measures in practice.

Conclusions

The Committee took note of the oral information provided by the Government representative and the discussion that followed.

The Committee noted that the Committee of Experts had noted with interest the adoption in 2008 of the Peoples’ Charter for Change, Peace and Progress and the National Policy on Sexual Harassment in the Workplace. The Committee had also noted the proposed measures to ensure access to education for all and that the education system would undergo an extensive reform. In this context, the Committee of Experts had requested clarification regarding whether the system established under the Education (Establishment and Registration of Schools) Regulations, 1966, providing that in the admission process preference may be given to pupils of a particular race or creed, was still in force.

The Committee noted the information provided by the Government outlining the strategies and the concrete steps taken or envisaged such as removing racial and inappropriate categorization and profiling in government records and registers. In this regard, the Committee took note of the Government’s indication that the forms that required persons of Indian descent to indicate their father’s name had been removed. The Committee further noted the Government’s statement that the reform of the education system would include a review of all subsidiary laws including the Education (Establishment and Registration of Schools) Regulations, 1966. The Government stated that it was carrying out a range of programmes to improve the educational system, including for persons with disabilities, and the quality of technical and vocational education, including with a view to increasing the enrolment of boys and girls in the school system. Regarding the implementation of the National Policy on Sexual Harassment in the Workplace, the Committee noted the information regarding two cases concerning sexual harassment that had been brought before the Employment Relations Tribunal and four cases settled through the Mediation Service in 2011.

While noting that the Peoples’ Charter provided a good basis for further action to promote equality of opportunity and treatment in employment and occupation, the Committee urged the Government to ensure that the principles contained therein were translated into concrete action. In this regard, it called on the Government to amend or repeal all racially discriminatory laws and regulations, including the Education (Establishment and Registration of Schools) Regulations, 1966; to effectively address discriminatory practices; and to ensure equality in employment, training and education for all persons of all ethnic groups.

The Committee also noted the recent amendment of the Employment Relations Promulgation No. 37 of 2007 by the Employment Relations (Amendment) Decree 2011 (Decree No. 21 of 2011), a copy of which was provided by the Government, excluding government employees, including teachers, from the scope of the Employment Relations Promulgation and thus from its non-discrimination provisions (section 2). The Committee was concerned that this exclusion could have a negative impact on the right to non-discrimination and equality of opportunity and treatment of government employees, especially in the context of the present difficulties in exercising the right to freedom of association. The Committee noted further that section 3 of Decree No. 21 prohibited any action, proceeding, claim or grievance “which purports to or purported to challenge or involves the Government ..., any Minister or the Public Service Commission ... which has been brought by virtue of or under (the Employment Relations Promulgation)”, and took due note of the Government’s explanation in this regard. The Committee urged the Government to ensure that government employees had the same rights to non-discrimination and equality in employment and occupation as other workers covered by the Employment Relations Promulgation, and had access to competent judicial bodies to claim their rights and to adequate remedies. The Committee asked in particular that the impact of Decree No. 21 be reviewed in this context.

Noting the low labour force participation of women and their high unemployment levels, the Committee asked the Government to take concrete measures to promote gender equality in the public and private sectors.

The Committee urged the Government to provide detailed information on the concrete action taken to implement the People’s Charter and the National Sexual Harassment Policy, and the results secured by such action, in the public and private sectors. The Committee urged the Government to take such measures in consultation with the social partners. Noting the Government’s indication that an anti-discrimination law was to be adopted, it asked the Government to provide information regarding this law so that the Committee of Experts could review its compliance with the Convention. The Committee also noted concerns regarding the difficulty in exercising the right to freedom of association in the country, and called on the Government to establish the conditions necessary for genuine tripartite dialogue, with ILO assistance, with a view to addressing the issues related to the implementation of the Convention.

The Committee requested the Government to include in its report to the Committee of Experts due in 2011, complete information regarding all issues raised by this Committee and the Committee of Experts, so that this Committee could assess at its next meeting in 2012 whether any progress had been made.

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

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.

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

The Committee notes with concern that the Government’s report has not been received. It is therefore bound to repeat its previous comments.

Repetition

Article 1(1) of the Convention. Protection against discrimination. Public service. Legislation. The Committee recalls that the Public Service Act of 1999 does not contain any provision linked to discrimination. In its previous comment, it noted that, following the adoption of the Public Service (Amendment) Decree, No. 36 of 2011, section 10B(2) and section 10C prohibit discrimination in all aspects of employment, based on ethnicity, colour, gender, religion, national extraction and social origin, but omitting political opinion. The Committee asked the Government to: (1) take the necessary measures to include political opinion among the prohibited grounds of discrimination listed in the Public Service (Amendment) Decree; and (2) indicate how public service employees and applicants for public service employment are protected against discrimination based on political opinion in practice. The Committee notes the Government’s indication in its report that Decree No. 36 of 2011 was amended by the Employment Relations (Amendment) Act, 2016, and that Parts 2A and 2B, including sections 10B and 10C of the Public Service (Amendment) Decree, have been repealed. The Amendment Act also amended the definition of “workers” to include contractual civil servants under the Employment Relations Act 2007 (ERA).

The Committee recalls that section 6(2) of the ERA prohibits discrimination on the grounds listed in the Convention, including the ground of political opinion. It also notes that Part I (interpretation), section 4, of the ERA provides that a worker is employed under contract of service, and that the concept of employer includes the Government, other Government entities or local authorities and a statutory authority. The Committee observes that the Public Service Act, 1999, as well as Decree No. 36 of 2011, cover employees in the public sector who are civil servants (career public servants) and that workers in the public sector who are employed under a contract of service are covered by the ERA. In that regard, it stresses once again that sections 10B(2) and 10C of Decree No. 36 of 2011 do not prohibit discrimination on the ground of political opinion. It recalls once again that, where legal provisions are adopted to give effect to the principle of the Convention, they should include at least all the grounds of discrimination specified in Article 1(1)(a) of the Convention. The Committee once again asks the Government to take the necessary measures to ensure that political opinion is included among the prohibited grounds of discrimination listed in the Public Service Act 1999. The Committee also requests the Government to indicate how in the meantime public service employees and applicants to public service employment are protected against discrimination based on political opinion in practice.

Enforcement and access to justice. The Committee recalls that the Conference Committee on the Application of Standards (CAS) (International Labour Conference, 100th Session, 2011) noted that section 266 of Decree No. 21 of 2011 prohibits any action, proceeding, claim or grievance “which purports to or purported to challenge or involves the Government (…) any Minister or the Public Service Commission (…) which has been brought by virtue of or under the [Employment Relations Act]”. The CAS urged the Government to ensure that government employees have access to competent judicial bodies to claim their rights and adequate remedies. Consequently, the Committee asked the Government to provide detailed information on the procedure and means of redress available to workers excluded from the scope of the ERA alleging discrimination in employment and occupation which purport to challenge or involve public authorities. The Government indicates that the Employment Relations (Amendment) Act 2016 repealed the Essential National Industries Decree 2011 (ENI) to allow civil servants and workers in statutory authorities and commercial banks to lodge their claims either through their trade unions as a trade dispute or as individual grievances. The Government adds that any worker, including civil servants, may file or lodge their employment grievance with the Mediation Services of the Ministry of Employment, Productivity and Industrial Relations, including for any matters pertaining to being discriminated against by their employer. According to the Government, in 2019, the Mediation Services received 22 grievances relating to discrimination, of which 13 were individual grievances reported by workers themselves and nine were reported by unions.

The Committee notes that, with regard to workers in the private sector, the ERA provides for a range of avenues of redress, such as the mediation services, the employment relations tribunal and the employment relations court. Regarding civil servants, the Public Service Regulations (L.N. 48 of 1999) provide in paragraph 28 that a chief executive must put in place, in his or her Ministry or department, appropriate procedures for employees to seek review of action that they consider adversely affects their employment. The Committee notes that section 266 of Decree No. 21 of 2011 may apply to both workers in the private and public sectors, as it prohibits any action, proceeding, claim or grievance “which purports to or purported to challenge or involves the Government (…) any Minister or the Public Service Commission”.

The Committee further notes that the National Commission on Human Rights and Anti-Discrimination (CHRAD), established in 2009 under article 45 of the Constitution, can receive and investigate complaints of discrimination and seek to resolve them through conciliation. Where complaints remain unresolved, the CHRAD can refer these to a legal process. The Committee asks the Government to: (i) take the necessary measures to ensure that workers who purport to challenge the public authorities, in case of discrimination in employment or occupation have a formal avenue of redress; (ii) provide information on the application in practice of section 266 of the ERA; and to provide information on the anti-discrimination activities of the National Commission on Human Rights and Anti-Discrimination in employment and occupation; and (iii) report any cases brought before it and their outcome.

The Committee is raising other matters in a request addressed directly to the Government.

The Committee expects that the Government will make every effort to take the necessary action in the near future.

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes that the Government’s report has not been received. It hopes 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 micro enterprises. 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.

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments.

Repetition

Article 1(1) of the Convention. Protection against discrimination. Public service. Legislation. The Committee recalls that the Public Service Act of 1999 does not contain any provision linked to discrimination. In its previous comment, it noted that, following the adoption of the Public Service (Amendment) Decree, No. 36 of 2011, section 10B(2) and section 10C prohibit discrimination in all aspects of employment, based on ethnicity, colour, gender, religion, national extraction and social origin, but omitting political opinion. The Committee asked the Government to: (1) take the necessary measures to include political opinion among the prohibited grounds of discrimination listed in the Public Service (Amendment) Decree; and (2) indicate how public service employees and applicants for public service employment are protected against discrimination based on political opinion in practice. The Committee notes the Government’s indication in its report that Decree No. 36 of 2011 was amended by the Employment Relations (Amendment) Act, 2016, and that Parts 2A and 2B, including sections 10B and 10C of the Public Service (Amendment) Decree, have been repealed. The Amendment Act also amended the definition of “workers” to include contractual civil servants under the Employment Relations Act 2007 (ERA).

The Committee recalls that section 6(2) of the ERA prohibits discrimination on the grounds listed in the Convention, including the ground of political opinion. It also notes that Part I (interpretation), section 4, of the ERA provides that a worker is employed under contract of service, and that the concept of employer includes the Government, other Government entities or local authorities and a statutory authority. The Committee observes that the Public Service Act, 1999, as well as Decree No. 36 of 2011, cover employees in the public sector who are civil servants (career public servants) and that workers in the public sector who are employed under a contract of service are covered by the ERA. In that regard, it stresses once again that sections 10B(2) and 10C of Decree No. 36 of 2011 do not prohibit discrimination on the ground of political opinion. It recalls once again that, where legal provisions are adopted to give effect to the principle of the Convention, they should include at least all the grounds of discrimination specified in Article 1(1)(a) of the Convention.The Committee once again asks the Government to take the necessary measures to ensure that political opinion is included among the prohibited grounds of discrimination listed in the Public Service Act 1999. The Committee also requests the Government to indicate how in the meantime public service employees and applicants to public service employment are protected against discrimination based on political opinion in practice.

Enforcement and access to justice. The Committee recalls that the Conference Committee on the Application of Standards (CAS) (International Labour Conference, 100th Session, 2011) noted that section 266 of Decree No. 21 of 2011 prohibits any action, proceeding, claim or grievance “which purports to or purported to challenge or involves the Government (…) any Minister or the Public Service Commission (…) which has been brought by virtue of or under the [Employment Relations Act]”. The CAS urged the Government to ensure that government employees have access to competent judicial bodies to claim their rights and adequate remedies. Consequently, the Committee asked the Government to provide detailed information on the procedure and means of redress available to workers excluded from the scope of the ERA alleging discrimination in employment and occupation which purport to challenge or involve public authorities. The Government indicates that the Employment Relations (Amendment) Act 2016 repealed the Essential National Industries Decree 2011 (ENI) to allow civil servants and workers in statutory authorities and commercial banks to lodge their claims either through their trade unions as a trade dispute or as individual grievances. The Government adds that any worker, including civil servants, may file or lodge their employment grievance with the Mediation Services of the Ministry of Employment, Productivity and Industrial Relations, including for any matters pertaining to being discriminated against by their employer. According to the Government, in 2019, the Mediation Services received 22 grievances relating to discrimination, of which 13 were individual grievances reported by workers themselves and nine were reported by unions.

The Committee notes that, with regard to workers in the private sector, the ERA provides for a range of avenues of redress, such as the mediation services, the employment relations tribunal and the employment relations court. Regarding civil servants, the Public Service Regulations (L.N. 48 of 1999) provide in paragraph 28 that a chief executive must put in place, in his or her Ministry or department, appropriate procedures for employees to seek review of action that they consider adversely affects their employment. The Committee notes that section 266 of Decree No. 21 of 2011 may apply to both workers in the private and public sectors, as it prohibits any action, proceeding, claim or grievance “which purports to or purported to challenge or involves the Government (…) any Minister or the Public Service Commission”.

The Committee further notes that the National Commission on Human Rights and Anti-Discrimination (CHRAD), established in 2009 under article 45 of the Constitution, can receive and investigate complaints of discrimination and seek to resolve them through conciliation. Where complaints remain unresolved, the CHRAD can refer these to a legal process.The Committee asks the Government to: (i) take the necessary measures to ensure that workers who purport to challenge the public authorities, in case of discrimination in employment or occupation have a formal avenue of redress; (ii) provide information on the application in practice of section 266 of the ERA; and to provide information on the anti-discrimination activities of the National Commission on Human Rights and Anti-Discrimination in employment and occupation; and (iii) report any cases brought before it and their outcome.

The Committee is raising other matters in a request addressed directly to the Government.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Fiji (ratification: 2002)

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 micro enterprises. 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 2 and 3 of 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.

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Article 1(1) of the Convention. Protection against discrimination. Public service. Legislation. The Committee recalls that the Public Service Act of 1999 does not contain any provision linked to discrimination. In its previous comment, it noted that, following the adoption of the Public Service (Amendment) Decree, No. 36 of 2011, section 10B(2) and section 10C prohibit discrimination in all aspects of employment, based on ethnicity, colour, gender, religion, national extraction and social origin, but omitting political opinion. The Committee asked the Government to: (1) take the necessary measures to include political opinion among the prohibited grounds of discrimination listed in the Public Service (Amendment) Decree; and (2) indicate how public service employees and applicants for public service employment are protected against discrimination based on political opinion in practice. The Committee notes the Government’s indication in its report that Decree No. 36 of 2011 was amended by the Employment Relations (Amendment) Act, 2016, and that Parts 2A and 2B, including sections 10B and 10C of the Public Service (Amendment) Decree, have been repealed. The Amendment Act also amended the definition of “workers” to include contractual civil servants under the Employment Relations Act 2007 (ERA).

The Committee recalls that section 6(2) of the ERA prohibits discrimination on the grounds listed in the Convention, including the ground of political opinion. It also notes that Part I (interpretation), section 4, of the ERA provides that a worker is employed under contract of service, and that the concept of employer includes the Government, other Government entities or local authorities and a statutory authority. The Committee observes that the Public Service Act, 1999, as well as Decree No. 36 of 2011, cover employees in the public sector who are civil servants (career public servants) and that workers in the public sector who are employed under a contract of service are covered by the ERA. In that regard, it stresses once again that sections 10B(2) and 10C of Decree No. 36 of 2011 do not prohibit discrimination on the ground of political opinion. It recalls once again that, where legal provisions are adopted to give effect to the principle of the Convention, they should include at least all the grounds of discrimination specified in Article 1(1)(a) of the Convention. The Committee once again asks the Government to take the necessary measures to ensure that political opinion is included among the prohibited grounds of discrimination listed in the Public Service Act 1999. The Committee also requests the Government to indicate how in the meantime public service employees and applicants to public service employment are protected against discrimination based on political opinion in practice.

Enforcement and access to justice. The Committee recalls that the Conference Committee on the Application of Standards (CAS) (International Labour Conference, 100th Session, 2011) noted that section 266 of Decree No. 21 of 2011 prohibits any action, proceeding, claim or grievance “which purports to or purported to challenge or involves the Government (…) any Minister or the Public Service Commission (…) which has been brought by virtue of or under the [Employment Relations Act]”. The CAS urged the Government to ensure that government employees have access to competent judicial bodies to claim their rights and adequate remedies. Consequently, the Committee asked the Government to provide detailed information on the procedure and means of redress available to workers excluded from the scope of the ERA alleging discrimination in employment and occupation which purport to challenge or involve public authorities. The Government indicates that the Employment Relations (Amendment) Act 2016 repealed the Essential National Industries Decree 2011 (ENI) to allow civil servants and workers in statutory authorities and commercial banks to lodge their claims either through their trade unions as a trade dispute or as individual grievances. The Government adds that any worker, including civil servants, may file or lodge their employment grievance with the Mediation Services of the Ministry of Employment, Productivity and Industrial Relations, including for any matters pertaining to being discriminated against by their employer. According to the Government, in 2019, the Mediation Services received 22 grievances relating to discrimination, of which 13 were individual grievances reported by workers themselves and nine were reported by unions.

The Committee notes that, with regard to workers in the private sector, the ERA provides for a range of avenues of redress, such as the mediation services, the employment relations tribunal and the employment relations court. Regarding civil servants, the Public Service Regulations (L.N. 48 of 1999) provide in paragraph 28 that a chief executive must put in place, in his or her Ministry or department, appropriate procedures for employees to seek review of action that they consider adversely affects their employment. The Committee notes that section 266 of Decree No. 21 of 2011 may apply to both workers in the private and public sectors, as it prohibits any action, proceeding, claim or grievance “which purports to or purported to challenge or involves the Government (…) any Minister or the Public Service Commission”.

The Committee further notes that the National Commission on Human Rights and Anti-Discrimination (CHRAD), established in 2009 under article 45 of the Constitution, can receive and investigate complaints of discrimination and seek to resolve them through conciliation. Where complaints remain unresolved, the CHRAD can refer these to a legal process. The Committee asks the Government to: (i) take the necessary measures to ensure that workers who purport to challenge the public authorities, in case of discrimination in employment or occupation have a formal avenue of redress; (ii) provide information on the application in practice of section 266 of the ERA; and to provide information on the anti-discrimination activities of the National Commission on Human Rights and Anti-Discrimination in employment and occupation; and (iii) report any cases brought before it and their outcome.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee notes that the Government’s report contains no reply to its previous comments. It hopes that the next report will contain full information on the matters raised in its previous comments initially made in 2015.

Repetition

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.

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee notes with regret that the Government’s report does not reply to the issues raised in the Committee’s previous observation. It must therefore repeat its previous comments initially made in 2012.

Follow-up to the conclusions of the Conference Committee on the Application of Standards (International Labour Conference, 100th Session, June 2011)

In its previous observation and in the absence of a report, the Committee recalled that a discussion has taken place in the Conference Committee on the Application of Standards in June 2011. In the resulting conclusions, the Conference Committee urged the Government to ensure that the principles contained in the People’s Charter for Change, Peace and Progress adopted in 2008 were translated into concrete action, and called upon the Government: (i) to amend or repeal all racially discriminatory laws and regulations, including the Education (Establishment and Registration of Schools) Regulations, 1966; (ii) to effectively address discriminatory practices; and (iii) to ensure equality in employment, training and education for all persons of all ethnic groups. The Conference Committee also addressed the right of government employees to non-discrimination and equality in employment, as well as the low labour force participation of women, and asked that measures be taken. The Conference Committee also noted concerns regarding the difficulty in exercising the right to freedom of association in the country, and called on the Government to establish the conditions necessary for genuine tripartite dialogue, with a view to addressing the issues related to the implementation of the Convention. The Committee notes that the Government has not replied to the latter point and asks the Government to provide specific and detailed information in this regard.

Article 1(1) of the Convention. Protection against discrimination. Public service. Legislation. The Committee recalls that further to the adoption of the Employment Relations (Amendment) Decree 2011 (Decree No. 21 of 2011) on 13 May 2011, government employees, including teachers, were excluded from the scope of the Employment Relations Promulgation of 2007 (ERP) and thus from its non-discrimination provisions. As regards employees excluded, and in general persons employed in the public service, the Committee welcomes the adoption of the Public Service (Amendment) Decree 2011 (Decree No. 36 of 2011) on 29 July 2011, which inserts in the Public Service Act 1999 new Parts 2A and 2B respectively on Fundamental Principles and Rights at Work and Equal Employment Opportunities. The Committee notes that section 10B(2) prohibits, in all aspects of employment, discrimination based on ethnicity, colour, gender, religion, national extraction and social origin, omitting however, political opinion. The Committee notes that section 10C on prohibited grounds of discrimination, whether direct or indirect, also refers to all the grounds of Article 1(1)(a) of the Convention except for political opinion. The Committee recalls that where legal provisions are adopted to give effect to the principle of the Convention, they should include at least all the grounds of discrimination specified in Article 1(1)(a) of the Convention. The Committee requests the Government to take the necessary measures to include political opinion among the prohibited grounds of discrimination listed in the Public Service Act 1999. The Committee also requests the Government to indicate how public service employees and applicants to public service employment are protected against discrimination based on political opinion in practice.

The Committee recalls that the Conference Committee noted that section 3 of Decree No. 21 of 2011 prohibits any action, proceeding, claim or grievance “which purports to or purported to challenge or involves the Government …, any Minister or the Public Service Commission … which has been brought by virtue of or under the [Employment Relations Promulgation]” and that it urged the Government to ensure that government employees had access to competent judicial bodies to claim their rights and to adequate remedies. While noting the Government’s indication regarding the jurisdiction of the High Court to hear any application for judicial review of the decisions of the Public Service Commission concerning termination of government employees, the Committee asks the Government to provide detailed information on the procedure and means of redress available to workers excluded from the scope of the ERP, alleging discrimination in employment or occupation which purport to challenge or involve public authorities. The Government is requested to provide information on the number of complaints submitted, the grounds invoked, the remedies granted and the sanctions imposed.

Article 1. Equal access to education and vocational training. In its previous comments, the Committee noted that the education system was to undergo an extensive reform and requested the Government to indicate whether the Education (Establishment and Registration of Schools) Regulations, 1966, which provide that in the admission process preference may be given to pupils of a particular race or creed, was still in force. According to the Government’s report, a draft Education Decree that will repeal the Education Act and all its subordinate legislation, including the 1966 Regulations, is being prepared. The Committee recalls in this regard that access to education and to a wide range of vocational training courses is of paramount importance to achieving equality in the labour market (2012 General Survey on the fundamental Conventions, paragraph 750). The Committee trusts that the Government will take the necessary measures to ensure the equal access of boys and girls, men and women from all ethnic groups to education and vocational training, and asks the Government to provide information on the measures taken to implement the reform of the educational system, including the adoption of the new Education Decree, and the results achieved. It requests the Government to clarify whether under section 26(3) of the draft Education Decree, the grounds of race, age, disability or religion can still be invoked, possibly in combination with other grounds, as one of the reasons to deny admission to school and to specify the grounds, if any, on the basis of which admission may be denied. The Committee reiterates its previous request for statistical information on the number of schools still applying race or creed as an admission requirement as well as the number of pupils enrolled in these schools.

Article 2. National policy to promote equality of opportunity and treatment irrespective of race, colour and national extraction. In its previous comments, the Committee noted the adoption on 15 December 2008 by the National Council for Building a Better Fiji (NCBBF) of the Peoples’ Charter for Change, Peace and Progress, which aims to build a society based on equality of opportunity for all Fiji citizens and on peace. It further noted that the Charter also contains specific measures concerning indigenous peoples and their institutions and that a number of recommendations were made by the NCBBF, such as the need to promulgate legislation prohibiting discrimination based on race, religion and sexual orientation, as well as legislation protecting the rights of ethnic minority groups (Indians, Pacific Islanders, Chinese, European and landless Fijians), especially with a view to improving access to land. As far as implementation is concerned, the Committee notes from the Government’s report that racial and inappropriate categorization and profiling in government records are being removed, the education system is being reformed and the name “Fijian” is to be applied to all citizens of Fiji while the name “i-Taukei” is used to designate indigenous Fijians who represent around 60 per cent of the population of Fiji. The Committee requests the Government to continue to provide information on the concrete measures taken to implement the Peoples’ Charter for Change, Peace and Progress with a view to prohibiting and eliminating discrimination, in particular racial discrimination, and to promote equal opportunities for all, including minority groups, in relation to access to education, vocational training, employment and various occupations. The Government is requested to provide information on any action or programmes undertaken by the Ministry for i-Taukei Affairs to promote equality in employment and occupation, including awareness-raising campaigns promoting tolerance between all components of the population.

Affirmative action. The Committee notes the Government’s indication that it has decided to replace the old affirmative action scheme in favour of indigenous peoples by a new “action scheme across all the races based on a means test” as part of the reform undertaken to develop and implement inclusive, non-discriminatory and non-race based policies towards the goal of common citizenry. It further notes that scholarship schemes that used to be race-based have been discontinued. The Committee requests the Government to provide detailed information on the new action scheme envisaged and its implementation in the fields of education, vocational training, employment and occupation, indicating how it intends to remedy de facto inequalities, redress the effects of past discriminatory practices and promote equal opportunities for all. Please specify if the new scheme provides for monitoring and assessment mechanisms.

Gender equality. The Committee notes the statistics regarding the participation rate of women on a number of bodies, such as the Employment Relations Advisory Board (29 per cent), the National Occupational Safety and Health Advisory Board (13 per cent) and the Wages Councils (20 per cent). The Government states that it aims to reach a participation rate of 30 per cent of women on employment and industrial relations bodies. The Committee further notes that the statistical data on the labour force provided by the Government are not disaggregated by sex and therefore do not give sufficient information on the participation of women and men in the labour market. The Committee notes that, in its concluding observations, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW), while welcoming the new Women’s Plan of Action (2010–19), again expressed concern at the persistence of practices and traditions, as well as strong patriarchal attitudes and deep-rooted stereotypes, regarding the roles, responsibilities and identities of women and men in all spheres of life. The Committee notes CEDAW’s concerns about the insufficient financial and human resources allocated to the national machinery for the advancement of women, as well as regarding the high number of women in the informal economy with no social security or other benefits and the unequal de facto situation of rural women in terms of access to land and credit (CEDAW/C/FJI/CO/4, 30 July 2010, paragraphs 6, 16, 17, 20, 21, 28, and 30). The Committee requests the Government to provide detailed information on the concrete measures taken to promote effectively gender equality in employment and occupation, in the framework of the new Women’s Plan of Action or otherwise, including measures taken to address gender stereotypes and improve the access of women to occupations traditionally held by men, through education and training, as well as measures taken to improve the access of women to land and credit. It also requests the Government to indicate the measures taken to increase the participation of women on employment and industrial relations bodies, and the results achieved.

Article 3(d). Promoting equality in employment under the control of a public authority. The Committee notes that in its most recent concluding observations, the United Nations Committee on the Elimination of Racial Discrimination (CERD) drew the Government’s attention to the under-representation of minorities in public services and to the need to assess the reasons for this phenomenon and address it effectively (CERD/C/FJI/CO/18-20, 31 August 2012, paragraph 12). While noting the Government’s general statement that all ministries are implementing the Equal Employment Opportunity Policy, the Committee requests the Government to provide information on concrete measures taken to ensure equality of opportunity and treatment of men and women from all ethnic groups in employment in the public service. Please also provide up-to-date statistics on the representation of men and women, from all ethnic groups, in the different categories, levels and grades in the public service.

The Committee is raising other points in a request addressed directly to the Government.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

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

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.

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

The Committee notes that the Government’s report does not reply to the issues raised in the Committee’s previous observation. It must therefore repeat its previous comments.

Follow-up to the conclusions of the Conference Committee on the Application of Standards (International Labour Conference, 100th Session, June 2011)

In its previous observation and in the absence of a report, the Committee recalled that a discussion has taken place in the Conference Committee on the Application of Standards in June 2011. In the resulting conclusions, the Conference Committee urged the Government to ensure that the principles contained in the People’s Charter for Change, Peace and Progress adopted in 2008 were translated into concrete action, and called upon the Government: (i) to amend or repeal all racially discriminatory laws and regulations, including the Education (Establishment and Registration of Schools) Regulations, 1966; (ii) to effectively address discriminatory practices; and (iii) to ensure equality in employment, training and education for all persons of all ethnic groups. The Conference Committee also addressed the right of government employees to non-discrimination and equality in employment, as well as the low labour force participation of women, and asked that measures be taken. The Conference Committee also noted concerns regarding the difficulty in exercising the right to freedom of association in the country, and called on the Government to establish the conditions necessary for genuine tripartite dialogue, with a view to addressing the issues related to the implementation of the Convention. The Committee notes that the Government has not replied to the latter point and asks the Government to provide specific and detailed information in this regard.

Article 1(1) of the Convention. Protection against discrimination. Public service. Legislation. The Committee recalls that further to the adoption of the Employment Relations (Amendment) Decree 2011 (Decree No. 21 of 2011) on 13 May 2011, government employees, including teachers, were excluded from the scope of the Employment Relations Promulgation of 2007 (ERP) and thus from its non-discrimination provisions. As regards employees excluded, and in general persons employed in the public service, the Committee welcomes the adoption of the Public Service (Amendment) Decree 2011 (Decree No. 36 of 2011) on 29 July 2011, which inserts in the Public Service Act 1999 new Parts 2A and 2B respectively on Fundamental Principles and Rights at Work and Equal Employment Opportunities. The Committee notes that section 10B(2) prohibits, in all aspects of employment, discrimination based on ethnicity, colour, gender, religion, national extraction and social origin, omitting however, political opinion. The Committee notes that section 10C on prohibited grounds of discrimination, whether direct or indirect, also refers to all the grounds of Article 1(1)(a) of the Convention except for political opinion. The Committee recalls that where legal provisions are adopted to give effect to the principle of the Convention, they should include at least all the grounds of discrimination specified in Article 1(1)(a) of the Convention. The Committee requests the Government to take the necessary measures to include political opinion among the prohibited grounds of discrimination listed in the Public Service Act 1999. The Committee also requests the Government to indicate how public service employees and applicants to public service employment are protected against discrimination based on political opinion in practice.

The Committee recalls that the Conference Committee noted that section 3 of Decree No. 21 of 2011 prohibits any action, proceeding, claim or grievance “which purports to or purported to challenge or involves the Government …, any Minister or the Public Service Commission … which has been brought by virtue of or under the [Employment Relations Promulgation]” and that it urged the Government to ensure that government employees had access to competent judicial bodies to claim their rights and to adequate remedies. While noting the Government’s indication regarding the jurisdiction of the High Court to hear any application for judicial review of the decisions of the Public Service Commission concerning termination of government employees, the Committee asks the Government to provide detailed information on the procedure and means of redress available to workers excluded from the scope of the ERP, alleging discrimination in employment or occupation which purport to challenge or involve public authorities. The Government is requested to provide information on the number of complaints submitted, the grounds invoked, the remedies granted and the sanctions imposed.

Article 1. Equal access to education and vocational training. In its previous comments, the Committee noted that the education system was to undergo an extensive reform and requested the Government to indicate whether the Education (Establishment and Registration of Schools) Regulations, 1966, which provide that in the admission process preference may be given to pupils of a particular race or creed, was still in force. According to the Government’s report, a draft Education Decree that will repeal the Education Act and all its subordinate legislation, including the 1966 Regulations, is being prepared. The Committee recalls in this regard that access to education and to a wide range of vocational training courses is of paramount importance to achieving equality in the labour market (General Survey on fundamental Conventions, 2012, paragraph 750). The Committee trusts that the Government will take the necessary measures to ensure the equal access of boys and girls, men and women from all ethnic groups to education and vocational training, and asks the Government to provide information on the measures taken to implement the reform of the educational system, including the adoption of the new Education Decree, and the results achieved. It requests the Government to clarify whether under section 26(3) of the draft Education Decree, the grounds of race, age, disability or religion can still be invoked, possibly in combination with other grounds, as one of the reasons to deny admission to school and to specify the grounds, if any, on the basis of which admission may be denied. The Committee reiterates its previous request for statistical information on the number of schools still applying race or creed as an admission requirement as well as the number of pupils enrolled in these schools.

Article 2. National policy to promote equality of opportunity and treatment irrespective of race, colour and national extraction. In its previous comments, the Committee noted the adoption on 15 December 2008 by the National Council for Building a Better Fiji (NCBBF) of the Peoples’ Charter for Change, Peace and Progress, which aims to build a society based on equality of opportunity for all Fiji citizens and on peace. It further noted that the Charter also contains specific measures concerning indigenous peoples and their institutions and that a number of recommendations were made by the NCBBF, such as the need to promulgate legislation prohibiting discrimination based on race, religion and sexual orientation, as well as legislation protecting the rights of ethnic minority groups (Indians, Pacific Islanders, Chinese, European and landless Fijians), especially with a view to improving access to land. As far as implementation is concerned, the Committee notes from the Government’s report that racial and inappropriate categorization and profiling in government records are being removed, the education system is being reformed and the name “Fijian” is to be applied to all citizens of Fiji while the name “i-Taukei” is used to designate indigenous Fijians who represent around 60 per cent of the population of Fiji. The Committee requests the Government to continue to provide information on the concrete measures taken to implement the Peoples’ Charter for Change, Peace and Progress with a view to prohibiting and eliminating discrimination, in particular racial discrimination, and to promote equal opportunities for all, including minority groups, in relation to access to education, vocational training, employment and various occupations. The Government is requested to provide information on any action or programmes undertaken by the Ministry for i-Taukei Affairs to promote equality in employment and occupation, including awareness-raising campaigns promoting tolerance between all components of the population.

Affirmative action. The Committee notes the Government’s indication that it has decided to replace the old affirmative action scheme in favour of indigenous peoples by a new “action scheme across all the races based on a means test” as part of the reform undertaken to develop and implement inclusive, non-discriminatory and non-race based policies towards the goal of common citizenry. It further notes that scholarship schemes that used to be race-based have been discontinued. The Committee requests the Government to provide detailed information on the new action scheme envisaged and its implementation in the fields of education, vocational training, employment and occupation, indicating how it intends to remedy de facto inequalities, redress the effects of past discriminatory practices and promote equal opportunities for all. Please specify if the new scheme provides for monitoring and assessment mechanisms.

Gender equality. The Committee notes the statistics regarding the participation rate of women on a number of bodies, such as the Employment Relations Advisory Board (29 per cent), the National Occupational Safety and Health Advisory Board (13 per cent) and the Wages Councils (20 per cent). The Government states that it aims to reach a participation rate of 30 per cent of women on employment and industrial relations bodies. The Committee further notes that the statistical data on the labour force provided by the Government are not disaggregated by sex and therefore do not give sufficient information on the participation of women and men in the labour market. The Committee notes that, in its concluding observations, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW), while welcoming the new Women’s Plan of Action (2010–19), again expressed concern at the persistence of practices and traditions, as well as strong patriarchal attitudes and deep-rooted stereotypes, regarding the roles, responsibilities and identities of women and men in all spheres of life. The Committee notes CEDAW’s concerns about the insufficient financial and human resources allocated to the national machinery for the advancement of women, as well as regarding the high number of women in the informal economy with no social security or other benefits and the unequal de facto situation of rural women in terms of access to land and credit (CEDAW/C/FJI/CO/4, 30 July 2010, paragraphs 6, 16, 17, 20, 21, 28, and 30). The Committee requests the Government to provide detailed information on the concrete measures taken to promote effectively gender equality in employment and occupation, in the framework of the new Women’s Plan of Action or otherwise, including measures taken to address gender stereotypes and improve the access of women to occupations traditionally held by men, through education and training, as well as measures taken to improve the access of women to land and credit. It also requests the Government to indicate the measures taken to increase the participation of women on employment and industrial relations bodies, and the results achieved.

Article 3(d). Promoting equality in employment under the control of a public authority. The Committee notes that in its most recent concluding observations, the United Nations Committee on the Elimination of Racial Discrimination (CERD) drew the Government’s attention to the under-representation of minorities in public services and to the need to assess the reasons for this phenomenon and address it effectively (CERD/C/FJI/CO/18-20, 31 August 2012, paragraph 12). While noting the Government’s general statement that all ministries are implementing the Equal Employment Opportunity Policy, the Committee requests the Government to provide information on concrete measures taken to ensure equality of opportunity and treatment of men and women from all ethnic groups in employment in the public service. Please also provide up-to-date statistics on the representation of men and women, from all ethnic groups, in the different categories, levels and grades in the public service.

The Committee is raising other points in a request addressed directly to the Government.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Prohibited grounds of discrimination. Legislation. The Committee requests the Government to provide explanations on the differences between the lists of prohibited grounds of discrimination in section 6(2) of the Employment Relations Promulgation (ERP) of 2007 and in section 75, and clarify the relationship between the two sections as well as the possibility to bring a claim under section 6(2). Since the provisions in the Public Service Act, as amended by the Public Service (Amendment) Decree 2011 (Decree No. 36 of 2011), are modelled on the provisions of the ERP, the Committee also requests the Government to provide explanations on the differences between the lists of prohibited grounds of discrimination in section 10B(2) and section 10C, and clarify the relationship between the two sections and the possibility to bring a claim under section 10B(2).The Committee also requests the Government to provide indications on the meaning of “actual or supposed personal characteristics or circumstances” referred to in section 10C, including any interpretation given by administrative or judicial bodies. Please also provide information on any legislative developments regarding the Anti-Discrimination Law previously announced by the Government and the new Constitution.

Discrimination based on real or perceived HIV status. The Committee welcomes the adoption of the HIV/AIDS Decree 2011 (Decree No. 5 of 2011) which prohibits direct and indirect discrimination against a person having HIV/AIDS or affected by HIV/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). The Committee notes from the Government’s report that a significant number of workshops on HIV and AIDS in the workplace, in which mainly men participated, took place in 2010, 2011 and 2012. It further notes, according to the Government’s report, that the Ministry of Labour has taken an advisory approach rather than enforcing the provisions of the various acts and codes of practice. A Cabinet Memorandum dated 12 April 2012 was prepared on the HIV and AIDS Recommendation, 2010 (No. 200), inviting the Cabinet to adopt this instrument to facilitate the prevention of HIV and AIDS in Fijian workplaces. The Committee requests the Government to provide information on the measures taken to follow-up on the 2012 Cabinet Memorandum on the HIV and AIDS Recommendation, 2010 (No. 200), including any specific measures taken with a view to promoting equal employment opportunities for men and women living with HIV and AIDS. The Committee also requests the Government to provide information on the manner in which:

• (i) the non-discrimination provisions of the ERP regarding HIV and AIDS and of the HIV/AIDS Decree 2011 are being enforced, including information on any cases of discrimination based on real or perceived HIV status in employment and occupation dealt with by the competent authorities;
• (ii) 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 interpretation given by courts.

Please continue to provide specific information on awareness-raising activities regarding HIV and AIDS undertaken and indicate the manner in which workers’ and employers’ organizations are involved in such activities as well as the measures taken to increase the participation of women in these activities.

Sexual harassment. Noting the statistical data provided regarding cases of sexual harassment dealt with by the Mediation Services Unit, the Committee notes from the Government’s report the difficulties faced by workers in reporting sexual harassment under the ERP, in particular, as the burden of proof is on the worker and the short-time limit of six months to report an employment grievance (section 111(2) of the ERP). With respect to public service employees, the Committee welcomes the inclusion in the Public Service (Amendment) Decree 2011 of a definition of sexual harassment in similar terms to that set out in section 4 of the ERP, covering both quid pro quo and hostile environment sexual harassment (section 10A) and the obligation for the employer to develop and maintain a policy to prevent sexual harassment at the workplace (section 10D(2)). The Committee requests the Government to ensure effective enforcement of the sexual harassment provisions in the ERP and the Public Service Act, as amended, in particular, to examine the adequacy of existing complaints mechanisms and means of redress available to workers from the private and the public sectors, and to indicate if it intends to take any measures to review and revise the provisions of the ERP regarding the burden of proof and the time limit to submit an employment grievance. The Committee again requests the Government to provide information on the manner in which the 2008 National Policy on Sexual Harassment is being implemented in practice at the workplace level in both the public and private sectors, including information on any internal written policies adopted, grievance procedures established, and preventive measures taken by employers. Please continue to provide information on the number of cases dealt with by the Mediation Services Unit and the courts, and communicate information on the complaint procedure for the public service and the number of cases of sexual harassment dealt with, and the outcome thereof.

Special measures. Persons with disabilities. The Committee notes from the Government’s report the approval of the Inclusive Education Policy which provides a framework ensuring quality education for students with disabilities. It further notes that the Ministry of Education aims to improve the provision of and policies for the education and vocational training services which meet the needs of persons with disabilities. The provision of incentives to employers to promote the employment of persons with disabilities is also envisaged. The Committee requests the Government to provide information on the measures taken for effective implementation of the Inclusive Education Policy with respect to students with disabilities and to promote equal opportunities of persons with disabilities in employment and occupation, including any incentive scheme put in place, and the results achieved.

Cooperation with workers’ and employers’ organizations. In the absence of a reply in the Government’s report, the Committee once again requests the Government to provide information on the concrete activities undertaken by the Employment Relations Advisory Board specifically concerning discrimination and equal opportunity and treatment in employment and occupation. Please also provide information on any other measures taken by employers’ and workers’ organizations on these specific issues, including awareness-raising measures.

Enforcement and practical application. The Committee notes the information provided by the Government on the obstacles faced by the labour inspectors whilst carrying out their enforcement duties, including the lack of resources due to their new responsibilities under the ERP. The Committee also notes the low number of discrimination complaints submitted to the Mediation Services Unit between 2008 and 2012 (57 in total) and that there were only 13 cases of discrimination brought before the Employment Relations Tribunal during that period. The Committee wishes to draw attention to the fact that the low number of complaints may not indicate that discrimination in the workplace is scarce as stated by the Government, but it may indicate a lack of an appropriate legal framework, lack of awareness of rights, lack of confidence in or absence of practical access to procedures, or fear of reprisals (see General Survey on fundamental Conventions, 2012, paragraphs 870–871). The Committee requests the Government:

• (i) to take the necessary measures to ensure that the labour inspectorate is in a position to carry out its duties under the ERP with respect to non-discrimination and equality in employment and occupation;
• (ii) to provide information on concrete monitoring and enforcement activities carried out, including awareness raising on workers’ rights related to equality and non-discrimination, and relevant extracts of inspection reports; and
• (iii) to take the necessary measures to ensure that workers have appropriate access to justice and means of redress in cases of discrimination.

Please also continue to provide information on the number of discrimination cases, if possible broken down by grounds of discrimination, dealt with by the competent authorities and their outcome, including remedies granted and sanctions applied.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Follow-up to the conclusions of the Conference Committee on the Application of Standards (International Labour Conference, 100th Session, June 2011). In its previous observation and in the absence of a report, the Committee recalled that a discussion has taken place in the Conference Committee on the Application of Standards in June 2011. In the resulting conclusions, the Conference Committee urged the Government to ensure that the principles contained in the People’s Charter for Change, Peace and Progress adopted in 2008 were translated into concrete action, and called upon the Government: (i) to amend or repeal all racially discriminatory laws and regulations, including the Education (Establishment and Registration of Schools) Regulations, 1966; (ii) to effectively address discriminatory practices; and (iii) to ensure equality in employment, training and education for all persons of all ethnic groups. The Conference Committee also addressed the right of government employees to non-discrimination and equality in employment, as well as the low labour force participation of women, and asked that measures be taken. The Conference Committee also noted concerns regarding the difficulty in exercising the right to freedom of association in the country, and called on the Government to establish the conditions necessary for genuine tripartite dialogue, with a view to addressing the issues related to the implementation of the Convention. The Committee notes that the Government has not replied to the latter point and asks the Government to provide specific and detailed information in this regard.

Article 1(1) of the Convention. Protection against discrimination. Public service. Legislation. The Committee recalls that the Employment Relations Promulgation of 2007 (ERP) explicitly prohibits direct and indirect discrimination in employment and occupation and covers all the prohibited grounds listed in Article 1(1)(a) of the Convention, as well as a number of additional grounds, as envisaged under Article 1(1)(b). It also recalls that further to the adoption of the Employment Relations (Amendment) Decree 2011 (Decree No. 21 of 2011) on 13 May 2011, government employees, including teachers, were excluded from the scope of the ERP and thus from its non-discrimination provisions. As regards employees excluded, and in general persons employed in the public service, the Committee welcomes the adoption of the Public Service (Amendment) Decree 2011 (Decree No. 36 of 2011) on 29 July 2011, which inserts in the Public Service Act 1999 new Parts 2A and 2B respectively on Fundamental Principles and Rights at Work and Equal Employment Opportunities. The Committee notes that section 10B(2) prohibits, in all aspects of employment, discrimination based on ethnicity, colour, gender, religion, national extraction and social origin, omitting however, political opinion which is listed in section 6(2) of the ERP. It also includes the additional grounds of sexual orientation, age, marital status, pregnancy, family responsibilities, state of health including real or perceived HIV status and AIDS, trade union membership and disability. The Committee also notes that section 10C on prohibited grounds of discrimination, whether direct or indirect, refers to “actual or supposed personal characteristics or circumstances, including: ethnic origin, colour, 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, religion or belief”, omitting “opinion” which is listed in section 75 of the ERP. While welcoming the recent legislative measures, particularly with respect to the additional grounds of discrimination, the Committee recalls that where legal provisions are adopted to give effect to the principle of the Convention, they should include at least all the grounds of discrimination specified in Article 1(1)(a) of the Convention. The Committee requests the Government to take the necessary measures to include political opinion among the prohibited grounds of discrimination listed in the Public Service Act 1999. The Committee also requests the Government to indicate how public service employees and applicants to public service employment are protected against discrimination based on political opinion in practice.

The Committee recalls that the Conference Committee noted that further to section 3 of Decree No. 21 of 2011, prohibits any action, proceeding, claim or grievance “which purports to or purported to challenge or involves the Government …, any Minister or the Public Service Commission … which has been brought by virtue of or under the [Employment Relations Promulgation]” and that it urged the Government to ensure that government employees had access to competent judicial bodies to claim their rights and to adequate remedies. While noting the Government’s indication regarding the jurisdiction of the High Court to hear any application for judicial review of the decisions of the Public Service Commission concerning termination of government employees, the Committee asks the Government to provide detailed information on the procedure and means of redress available to workers excluded from the scope of the ERP, alleging discrimination in employment or occupation which purport to challenge or involve public authorities. The Government is requested to provide information on the number of complaints submitted, the grounds invoked, the remedies granted and the sanctions imposed.

Article 1. Equal access to education and vocational training. In its previous comments, the Committee noted that the education system was to undergo an extensive reform and requested the Government to indicate whether the Education (Establishment and Registration of Schools) Regulations, 1966, which provide that in the admission process preference may be given to pupils of a particular race or creed, was still in force. According to the Government’s report, a draft Education Decree that will repeal the Education Act and all its subordinate legislation, including the 1966 Regulations, is being prepared. The draft Decree has been vetted by the Attorney-General and sent back to the Ministry of Education for amendment. The Committee notes that section 26(3) of the draft Education Decree provides that “no child shall be denied admission solely on grounds of race, age, disabilities or religion”. The Committee recalls in this regard that access to education and to a wide range of vocational training courses is of paramount importance to achieving equality in the labour market (General Survey on Fundamental Conventions, 2012, paragraph 750). The Committee trusts that the Government will take the necessary measures to ensure the equal access of boys and girls, men and women from all ethnic groups to education and vocational training, and asks the Government to provide information on the measures taken to implement the reform of the educational system, including the adoption of the new Education Decree, and the results achieved. It requests the Government to clarify whether under section 26(3) of the draft Education Decree, the grounds of race, age, disability or religion can still be invoked, possibly in combination with other grounds, as one of the reasons to deny admission to school and to specify the grounds, if any, on the basis of which admission may be denied. The Committee reiterates its previous request for statistical information on the number of schools still applying race or creed as an admission requirement as well as the number of pupils enrolled in these schools.

Article 2. National policy to promote equality of opportunity and treatment irrespective of race, colour and national extraction. In its previous comments, the Committee noted the adoption on 15 December 2008 by the National Council for Building a Better Fiji (NCBBF) of the Peoples’ Charter for Change, Peace and Progress, which aims to build a society based on equality of opportunity for all Fiji citizens and on peace. It further noted that the Charter also contains specific measures concerning indigenous peoples and their institutions and that a number of recommendations were made by the NCBBF, such as the need to promulgate legislation prohibiting discrimination based on race, religion and sexual orientation, as well as legislation protecting the rights of ethnic minority groups (Indians, Pacific Islanders, Chinese, European and landless Fijians), especially with a view to improving access to land. As far as implementation is concerned, the Committee notes from the Government’s report that racial and inappropriate categorization and profiling in government records are being removed, the education system is being reformed and the name “Fijian” is to be applied to all citizens of Fiji while the name “i-Taukei” is used to designate indigenous Fijians who represent around 60 per cent of the population of Fiji. The Committee requests the Government to continue to provide information on the concrete measures taken to implement the Peoples’ Charter for Change, Peace and Progress with a view to prohibiting and eliminating discrimination, in particular racial discrimination, and to promote equal opportunities for all, including minority groups, in relation to access to education, vocational training, employment and various occupations. The Government is requested to provide information on any action or programmes undertaken by the Ministry for i-Taukei Affairs to promote equality in employment and occupation, including awareness-raising campaigns promoting tolerance between all components of the population.

Affirmative action. The Committee notes the Government’s indication that it has decided to replace the old affirmative action scheme in favour of indigenous peoples by a new “action scheme across all the races based on a means test” as part of the reform undertaken to develop and implement inclusive, non-discriminatory and non-race based policies towards the goal of common citizenry. It further notes that scholarship schemes that used to be race-based have been discontinued. The Committee wishes to recall that when adequately designed, affirmative action measures are aimed at ensuring equality of opportunity in practice, taking into account the diversity of situations of the persons concerned, so as to halt discrimination, redress the effects of past discriminatory practices and restore a balance, and that they are part of a broader effort to eliminate all inequalities and an important component of the national equality policy, referred to in Article 2 of the Convention. Such measures must genuinely pursue the objective of equality of opportunity, be proportional to the nature and scope of the protection or assistance needed or of the existing discrimination, and be examined periodically in order to ascertain whether they are still needed and remain effective. Affirmative action grounded on the prior consultation and consent of the stakeholders, including workers’ and employers’ organizations, helps to ensure that the measures taken are broadly accepted, effective and in line with the principle of non-discrimination (General Survey, 2012, paragraphs 862–864). In the light of the above, the Committee requests the Government to provide detailed information on the new action scheme envisaged and its implementation in the fields of education, vocational training, employment and occupation, indicating how it intends to remedy de facto inequalities, redress the effects of past discriminatory practices and promote equal opportunities for all. Please specify if the new scheme provides for monitoring and assessment mechanisms.

Gender equality. The Committee notes that the Government’s report contains information on the general strategies adopted to promote gender equality and promote the creation of enterprises by women, but does not provide any information on concrete measures taken for that purpose nor on the results achieved through, for instance the implementation of the Women’s Plan of Action 1999–2008 to which the Committee referred in its previous comments. The Committee notes the statistics regarding the participation rate of women on a number of bodies, such as the Employment Relations Advisory Board (29 per cent), the National Occupational Safety and Health Advisory Board (13 per cent) and the Wages Councils (20 per cent). The Government states that it aims to reach a participation rate of 30 per cent of women on employment and industrial relations bodies. The Committee further notes that the statistical data on the labour force provided by the Government are not disaggregated by sex and therefore do not give sufficient information on the participation of women and men in the labour market. The Committee notes that, in its concluding observations, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW), while welcoming the new Women’s Plan of Action (2010–19), again expressed concern at the persistence of practices and traditions, as well as strong patriarchal attitudes and deep-rooted stereotypes, regarding the roles, responsibilities and identities of women and men in all spheres of life. Such practices and customs perpetuate discrimination against women and girls and may constitute obstacles to their education. The Committee notes CEDAW’s concerns about the insufficient financial and human resources allocated to the national machinery for the advancement of women, as well as regarding the high number of women in the informal economy with no social security or other benefits and the unequal de facto situation of rural women in terms of access to land and credit (CEDAW/C/FJI/CO/4, 30 July 2010, paragraphs. 6, 16, 17, 20, 21, 28, and 30). The Committee requests the Government to provide detailed information on the concrete measures taken to promote effectively gender equality in employment and occupation, in the framework of the former and the new Women’s Plan of Action or otherwise, including measures taken to address gender stereotypes and improve the access of women to occupations traditionally held by men, through education and training, as well as measures taken to improve the access of women to land and credit. It also requests the Government to indicate the measures taken to increase the participation of women on employment and industrial relations bodies, and the results achieved.

Article 3(d). Promoting equality in employment under the control of a public authority. The Committee notes that the statistics provided by the Government on the number of men and women employed in the public sector, disaggregated by status (permanent, under a contract or temporary) show a balance between men and women. The Committee notes however that in its most recent concluding observations, the United Nations Committee on the Elimination of Racial Discrimination (CERD) drew the Government’s attention to the under-representation of minorities in public services and to the need to assess the reasons for this phenomenon and address it effectively (CERD/C/FJI/CO/18-20, 31 August 2012, paragraph 12). While noting the Government’s general statement that all ministries are implementing the Equal Employment Opportunity Policy, the Committee requests the Government to provide information on concrete measures taken to ensure equality of opportunity and treatment of men and women from all ethnic groups in employment in the public service. Please also provide up-to-date statistics on the representation of men and women, from all ethnic groups, in the different categories, levels and grades in the public service.

The Committee is raising other points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Repetition

Legislative prohibition of discrimination. Promotion and enforcement measures. In its previous comments, the Committee noted the adoption of the Employment Relations Promulgation of 2007 which explicitly prohibits direct and indirect discrimination in employment and occupation and covers the prohibited grounds explicitly listed in Article 1(1)(a) of the Convention, as well as a number of additional grounds, as envisaged under Article 1(1)(b). In its 2008 report, the Government indicates that intensive training and awareness-raising activities on the implementation of the discrimination and equal opportunities provisions of the Promulgation had been provided both in the public and the private sectors for the past two years. The Government further reports that the implementation of the new provisions is being monitored with a view to assessing compliance. The Committee also notes that, according to the report supplied by the Government in 2009, there has been no tribunal or court ruling or decision involving issues relating to the application of the Convention. Noting that the Employment Relations Promulgation has been in effect since 2 April 2008 and that a grace period of six months was granted to employers, the Committee requests the Government to provide information on any obstacles faced in the implementation of the equality provisions of the Promulgation in practice and on concrete monitoring and enforcement activities carried out by the Ministry for Labour, Industrial Relations and Employment and, in particular, the Labour Inspectorate Division, and their findings. Please also provide relevant extracts of inspection reports and of any court decisions dealing with discrimination on any of the grounds prohibited by the Employment Relations Promulgation of 2007.

Discrimination based on HIV/AIDS status. In its previous comments, the Committee noted the adoption of the 2007 National Code of Practice for HIV/AIDS in the Workplace and requested information on the measures taken or envisaged to promote equal employment opportunities for men and women living with HIV/AIDS and on the implementation of the National Code of Practice and the relevant provisions of the Employment Relations Promulgation. The Committee notes that the Government indicates in its 2008 report that it had been conducting intensive awareness raising on the code of practice for the last two years. The Committee requests the Government to provide specific information on awareness-raising activities undertaken, indicating in particular the manner in which workers’ and employers’ organizations are involved in such activities, and on any specific measure taken with a view to promoting equal employment opportunities for men and women living with HIV/AIDS. Also noting that two cases of discrimination based on HIV/AIDS status were received and settled by arbitration and informal mediation, the Committee requests the Government to continue providing information on the manner in which the enforcement of the non-discrimination provisions of the Employment Relations Promulgation is ensured.

Gender equality. The Committee notes that, according to the 2007 census, the participation of men in the labour force is significantly higher than the participation of women – which has remained unchanged since 1996 – and that a significant proportion of the employed women are subsistence workers. Furthermore, in 2007, the unemployment rate of women was about twice as high as the unemployment rate of men. Noting that the Government has not replied to its previous request for information on the concrete measures taken by the competent authorities to promote gender equality in employment and occupation and to follow up on the work-related aspects of the Women’s Plan of Action 1999–2008 and the recommendations established by the 1997 ILO study entitled “Towards equality and protection for women in the formal sector”, the Committee requests the Government once again to provide this information in its next report. The Committee further requests the Government to indicate any measures taken or envisaged to promote the employment of women both in the private and the public sectors, including through the development of training opportunities to enable them to access a larger range of jobs and occupations.

The Committee notes from the Report on the State of the Nation and the Economy (SNE Report) that the National Council for Building a Better Fiji (NCBBF) recommends that greater participation of women in decision-making should be ensured through the reservation of 30 per cent of seats at all levels in decision-making bodies, including Parliament. The Committee requests the Government to provide information on any measures taken to give effect to the recommendation of the NCBBF and their results.

Affirmative action. In reply to the Committee’s previous request for information on affirmative action measures taken by the Government in favour of disadvantaged ethnic groups, the Government states in its 2008 report that affirmative action had been suspended since 2007 pending review under Fiji’s Constitution. The Committee notes that, according to the NCBBF, there is a need to design affirmative action programmes that are effective, transparent and meet the needs of the genuinely disadvantaged communities and specifies that affirmative action policies should ensure greater representation of women and adequate representation of different ethnic groups in the military. The Committee requests the Government to provide information on affirmative action measures taken or envisaged to promote equal opportunities for disadvantaged ethnic groups as regards access to employment and occupation, including education and vocational training.

Employment under the control of a public authority. In reply to the Committee’s request for information regarding any specific measures taken to promote equality in the public sector, the Government indicates that the current practice is that all Fiji nationals are afforded equal opportunities based on merit to enter the civil service. The Committee notes from the Peoples Charter and the SNE Report that public sector reform, including a human resource development plan, is to be implemented in the very near future. The Committee requests the Government to provide information on concrete measures taken to address equality of opportunity and treatment of men and women from all ethnic groups in employment in the public sector in the framework of the envisaged reform of the public sector, and on measures taken to ensure that the public service provides a working environment that is free from discrimination, in accordance with section 4(6) of the Public Service Act 1999. Please also provide information on the implementation of the envisaged reform of the public sector, as well as up-to-date statistics on the number of men and women employed in the public sector in different posts, by grade and, if possible, remuneration level.

Cooperation with workers’ and employers’ organizations. The Committee notes that, according to the Government’s report, the social partners are committed to the full implementation of the Employment Relations Promulgation through their participation in the work of the Employment Relations Advisory Board that advises the Minister on employment and labour matters. The Committee requests the Government to provide information on the activities of the Employment Relations Advisory Board specifically concerning discrimination and equal opportunity and treatment in employment and occupation. Please also provide information on any other measures taken by employers’ and workers’ organizations on these issues.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Follow-up to the conclusions of the Conference Committee on the Application of Standards (International Labour Conference, 100th Session, June 2011)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards in June 2011 and the resulting conclusions of the Conference Committee. The Committee notes that the Conference Committee, while noting that the People’s Charter for Change, Peace and Progress provided a good basis for further action to promote equality of opportunity and treatment in employment and occupation, urged the Government to ensure that the principles contained therein were translated into concrete action and called upon the Government: (i) to amend or repeal all racially discriminatory laws and regulations, including the Education (Establishment and Registration of Schools) Regulations, 1966; (ii) to effectively address discriminatory practices; (iii) to ensure equality in employment, training and education for all persons of all ethnic groups. The Conference Committee urged the Government to provide detailed information on the concrete action taken to implement the People’s Charter and the National Sexual Harassment Policy, and the results secured by such action, in the public and private sectors. It also urged the Government to take such measures in consultation with the social partners. The Conference Committee noted concerns regarding the difficulty in exercising the right to freedom of association in the country, and called upon the Government to establish the conditions necessary for genuine tripartite dialogue, with the assistance of the ILO, with a view to addressing the issues related to the implementation of the Convention.

Noting the Government’s indication that an anti-discrimination law was to be adopted, the Conference Committee asked the Government to provide information regarding this law. It also asked the Government to take concrete measures to promote gender equality in the public and private sectors, given the low labour force participation of women and their high unemployment levels. With respect to the exclusion of government employees, including teachers, from the scope of Employment Relations Promulgation No. 37 of 2007 further to its amendment by the Employment Relations (Amendment) Decree 2011 (Decree No. 21 of 2011) and thus from its non-discrimination provisions, the Conference Committee urged the Government to ensure that government employees had the same rights to non discrimination and equality in employment and occupation as other workers covered by the Employment Relations Promulgation, and had access to competent judicial bodies to claim their rights and to adequate remedies. The Conference Committee asked in particular that the impact of Decree No. 21 be reviewed in this context. The Committee notes that the Government’s report has not been received, and thus there is no reply to the conclusions of the Conference Committee. The Committee asks the Government to provide information regarding the issues raised by the Conference Committee.

In addition, as the Government’s report has not been received, the Committee must therefore repeat its previous observation which read as follows:

National policy to promote equality of opportunity and treatment. The Committee notes with interest the adoption on 15 December 2008 by the National Council for Building a Better Fiji (NCBBF) of the Peoples Charter for Change, Peace and Progress, which aims to build a society based on equality of opportunity for all Fiji citizens and on peace. The Charter, which was drafted on the basis of the findings and recommendations contained in the Report on the State of the Nation and the Economy (SNE Report) and after consultations held throughout the country, proclaims that equality and dignity of all citizens, respect for the diverse cultural, religious and philosophical beliefs, social and economic justice, equitable access to the benefits of development, and merit-based equality of opportunities for all shall be leading principles and aspirations. The Charter also sets out key measures and actions to be taken, such as the promulgation of an Anti-Discrimination Act, the development of education, vocational training and job placement, the promotion of multicultural education and the gradual phasing out of institutional names that denote racial affiliations, and the elimination of racial and inappropriate categorization and profiling in government records and registers. Other measures also include the increase of the participation of women at all levels of decision-making, the enactment of a code of conduct for public servants and persons who hold statutory appointments, the reform of the public sector, including the removal of any political interference and the compulsory training of civil servants, the development of cooperation between the Government and the private sector, and the introduction of a national minimum wage. The Charter also contains specific measures concerning indigenous peoples and their institutions. In this respect, the Committee notes that the NCBBF made a number of recommendations in the SNE Report, such as the need to promulgate legislation prohibiting discrimination based on race, religion and sexual orientation, as well as legislation protecting the rights of minority ethnic groups (Indians, Pacific Islanders, Chinese, European and landless Fijians), especially with the view to improving access to land. The Committee requests the Government to provide information on the implementation of the measures envisaged in the Peoples Charter for Change, Peace and Progress to prohibit and eliminate discrimination, in particular racial discrimination, and to promote equal opportunities for all in relation to access to education, vocational training and employment in both the private and the public sectors.

Sexual harassment. The Committee notes with interest the adoption by the Government of the 2008 National Policy on Sexual Harassment in the Workplace, which was developed in consultation with the tripartite social partners. It notes in particular that the Policy provides for a definition of sexual harassment and a list of acts that constitute sexual harassment, and establishes the employer’s responsibilities: every employer must have an internal written policy and a grievance procedure on sexual harassment at the workplace, which are to be developed by both staff and managers (paragraph 5.1). The Committee further notes that the Policy highlights the consequences of sexual harassment not only for the victim but also for the entire staff and the enterprise itself and describes the complaint mechanisms available under the Human Rights Commission Act 1999, section 154 of the Penal Code and Part 13 of the Employment Relations Promulgation 2007. The Committee requests the Government to provide information on the manner in which the 2008 National Policy on Sexual Harassment is implemented at the workplace level, indicating in particular any internal written policies adopted and grievance procedures put in place and any preventive measures taken by employers. The Committee further requests the Government to provide information on cases of sexual harassment identified by or referred to the labour inspectorate or any disputes concerning sexual harassment brought before the competent bodies, either under the Human Rights Commission Act 1999, section 154 of the Penal Code or Part 13 of the Employment Relations Promulgation 2007.

Equal access to education and training. The Committee notes that the People’s Charter for Change, Peace and Progress contains numerous proposed measures to ensure access to education for all, including the establishment of a statutory body for community and non-formal learning, the strengthening of early childhood education – especially in rural areas – the enhancement of skills and vocational training and the promotion of entrepreneurship training, the facilitation of job placement in partnership with the private sector and the introduction of a grant system. The Committee further notes that the SNE Report emphasizes the need for the education system to include the teaching and understanding of various cultural groups in order to foster unity and to develop an inclusive based education system.

The Committee understands from the information in the SNE Report and the provisions of the People’s Charter that the education system will undergo an extensive reform. As a consequence, the Committee requests the Government to clarify whether the system established under the Education (Establishment and Registration of Schools) Regulations, 1966, providing that in the admission process preference may be given to pupils of a particular race or creed, will still be in force. If so, the Committee reiterates its previous request for information on the application of these provisions in practice and for statistical information on the number of schools applying race or creed as an admission requirement as well as the number of pupils enrolled in these schools. Please also provide information on the implementation of the reform of the educational system, in particular on the measures taken to ensure the equal access of boys and girls, men and women from all ethnic groups to education and vocational training and their results.

The Committee is raising other points in a request addressed directly to the Government.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Legislative prohibition of discrimination. Promotion and enforcement measures. In its previous comments, the Committee noted the adoption of the Employment Relations Promulgation of 2007 which explicitly prohibits direct and indirect discrimination in employment and occupation and covers the prohibited grounds explicitly listed in Article 1(1)(a) of the Convention, as well as a number of additional grounds, as envisaged under Article 1(1)(b). In its 2008 report, the Government indicates that intensive training and awareness-raising activities on the implementation of the discrimination and equal opportunities provisions of the Promulgation had been provided both in the public and the private sectors for the past two years. The Government further reports that the implementation of the new provisions is being monitored with a view to assessing compliance. The Committee also notes that, according to the report supplied by the Government in 2009, there has been no tribunal or court ruling or decision involving issues relating to the application of the Convention. Noting that the Employment Relations Promulgation has been in effect since 2 April 2008 and that a grace period of six months was granted to employers, the Committee requests the Government to provide information on any obstacles faced in the implementation of the equality provisions of the Promulgation in practice and on concrete monitoring and enforcement activities carried out by the Ministry for Labour, Industrial Relations and Employment and, in particular, the Labour Inspectorate Division, and their findings. Please also provide relevant extracts of inspection reports and of any court decisions dealing with discrimination on any of the grounds prohibited by the Employment Relations Promulgation of 2007.

Discrimination based on HIV/AIDS status. In its previous comments, the Committee noted the adoption of the 2007 National Code of Practice for HIV/AIDS in the Workplace and requested information on the measures taken or envisaged to promote equal employment opportunities for men and women living with HIV/AIDS and on the implementation of the National Code of Practice and the relevant provisions of the Employment Relations Promulgation. The Committee notes that the Government indicates in its 2008 report that it had been conducting intensive awareness raising on the Code of Practice for the last two years. The Committee requests the Government to provide specific information on awareness-raising activities undertaken, indicating in particular the manner in which workers’ and employers’ organizations are involved in such activities, and on any specific measure taken with a view to promoting equal employment opportunities for men and women living with HIV/AIDS. Also noting that two cases of discrimination based on HIV/AIDS status were received and settled by arbitration and informal mediation, the Committee requests the Government to continue providing information on the manner in which the enforcement of the non-discrimination provisions of the Employment Relations Promulgation is ensured.

Gender equality. The Committee notes that, according to the 2007 census, the participation of men in the labour force is significantly higher than the participation of women – which has remained unchanged since 1996 – and that a significant proportion of the employed women are subsistence workers. Furthermore, in 2007, the unemployment rate of women was about twice as high as the unemployment rate of men. Noting that the Government has not replied to its previous request for information on the concrete measures taken by the competent authorities to promote gender equality in employment and occupation and to follow up on the work-related aspects of the Women’s Plan of Action 1999–2008 and the recommendations established by the 1997 ILO study entitled “Towards equality and protection for women in the formal sector”, the Committee requests the Government once again to provide this information in its next report. The Committee further requests the Government to indicate any measures taken or envisaged to promote the employment of women both in the private and the public sectors, including through the development of training opportunities to enable them to access a larger range of jobs and occupations.

The Committee notes from the Report on the State of the Nation and the Economy (SNE Report) that the National Council for Building a Better Fiji (NCBBF) recommends that greater participation of women in decision-making should be ensured through the reservation of 30 per cent of seats at all levels in decision-making bodies, including Parliament. The Committee requests the Government to provide information on any measures taken to give effect to the recommendation of the NCBBF and their results.

Affirmative action. In reply to the Committee’s previous request for information on affirmative action measures taken by the Government in favour of disadvantaged ethnic groups, the Government states in its 2008 report that affirmative action had been suspended since 2007 pending review under Fiji’s Constitution. The Committee notes that, according to the NCBBF, there is a need to design affirmative action programmes that are effective, transparent and meet the needs of the genuinely disadvantaged communities and specifies that affirmative action policies should ensure greater representation of women and adequate representation of different ethnic groups in the military. The Committee requests the Government to provide information on affirmative action measures taken or envisaged to promote equal opportunities for disadvantaged ethnic groups as regards access to employment and occupation, including education and vocational training.

Employment under the control of a public authority. In reply to the Committee’s request for information regarding any specific measures taken to promote equality in the public sector, the Government indicates that the current practice is that all Fiji nationals are afforded equal opportunities based on merit to enter the civil service. The Committee notes from the Peoples Charter and the SNE Report that public sector reform, including a Human Resource Development Plan, is to be implemented in the very near future. The Committee requests the Government to provide information on concrete measures taken to address equality of opportunity and treatment of men and women from all ethnic groups in employment in the public sector in the framework of the envisaged reform of the public sector, and on measures taken to ensure that the public service provides a working environment that is free from discrimination, in accordance with section 4(6) of the Public Service Act 1999. Please also provide information on the implementation of the envisaged reform of the public sector, as well as up-to-date statistics on the number of men and women employed in the public sector in different posts, by grade and, if possible, remuneration level.

Cooperation with workers’ and employers’ organizations. The Committee notes that, according to the Government’s report, the social partners are committed to the full implementation of the Employment Relations Promulgation through their participation in the work of the Employment Relations Advisory Board that advises the Minister on employment and labour matters. The Committee requests the Government to provide information on the activities of the Employment Relations Advisory Board specifically concerning discrimination and equal opportunity and treatment in employment and occupation. Please also provide information on any other measures taken by employers’ and workers’ organizations on these issues.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

National policy to promote equality of opportunity and treatment. The Committee notes with interest the adoption on 15 December 2008 by the National Council for Building a Better Fiji (NCBBF) of the Peoples Charter for Change, Peace and Progress, which aims to build a society based on equality of opportunity for all Fiji citizens and on peace. The Charter, which was drafted on the basis of the findings and recommendations contained in the Report on the State of the Nation and the Economy (SNE Report) and after consultations held throughout the country, proclaims that equality and dignity of all citizens, respect for the diverse cultural, religious and philosophical beliefs, social and economic justice, equitable access to the benefits of development, and merit-based equality of opportunities for all shall be leading principles and aspirations. The Charter also sets out key measures and actions to be taken, such as the promulgation of an Anti-Discrimination Act, the development of education, vocational training and job placement, the promotion of multicultural education and the gradual phasing out of institutional names that denote racial affiliations, and the elimination of racial and inappropriate categorization and profiling in government records and registers. Other measures also include the increase of the participation of women at all levels of decision-making, the enactment of a code of conduct for public servants and persons who hold statutory appointments, the reform of the public sector, including the removal of any political interference and the compulsory training of civil servants, the development of cooperation between the Government and the private sector, and the introduction of a national minimum wage. The Charter also contains specific measures concerning indigenous peoples and their institutions. In this respect, the Committee notes that the NCBBF made a number of recommendations in the SNE Report, such as the need to promulgate legislation prohibiting discrimination based on race, religion and sexual orientation, as well as legislation protecting the rights of minority ethnic groups (Indians, Pacific Islanders, Chinese, European and landless Fijians), especially with the view to improving access to land. The Committee requests the Government to provide information on the implementation of the measures envisaged in the Peoples Charter for Change, Peace and Progress to prohibit and eliminate discrimination, in particular racial discrimination, and to promote equal opportunities for all in relation to access to education, vocational training and employment in both the private and the public sectors.

Sexual harassment. The Committee notes with interest the adoption by the Government of the 2008 National Policy on Sexual Harassment in the Workplace, which was developed in consultation with the tripartite social partners. It notes in particular that the Policy provides for a definition of sexual harassment and a list of acts that constitute sexual harassment, and establishes the employer’s responsibilities: every employer must have an internal written policy and a grievance procedure on sexual harassment at the workplace, which are to be developed by both staff and managers (paragraph 5.1). The Committee further notes that the Policy highlights the consequences of sexual harassment not only for the victim but also for the entire staff and the enterprise itself and describes the complaint mechanisms available under the Human Rights Commission Act 1999, section 154 of the Penal Code and Part 13 of the Employment Relations Promulgation 2007. The Committee requests the Government to provide information on the manner in which the 2008 National Policy on Sexual Harassment is implemented at the workplace level, indicating in particular any internal written policies adopted and grievance procedures put in place and any preventive measures taken by employers. The Committee further requests the Government to provide information on cases of sexual harassment identified by or referred to the labour inspectorate or any disputes concerning sexual harassment brought before the competent bodies, either under the Human Rights Commission Act 1999, section 154 of the Penal Code or Part 13 of the Employment Relations Promulgation 2007.

Equal access to education and training. The Committee notes that the Peoples Charter for Change, Peace and Progress contains numerous proposed measures to ensure access to education for all, including the establishment of a statutory body for community and non-formal learning, the strengthening of early childhood education – especially in rural areas – the enhancement of skills and vocational training and the promotion of entrepreneurship training, the facilitation of job placement in partnership with the private sector and the introduction of a grant system. The Committee further notes that the SNE Report emphasizes the need for the education system to include the teaching and understanding of various cultural groups in order to foster unity and to develop an inclusive based education system.

The Committee understands from the information in the SNE Report and the provisions of the Peoples Charter that the education system will undergo an extensive reform. As a consequence, the Committee requests the Government to clarify whether the system established under the Education (Establishment and Registration of Schools) Regulations, 1966, providing that in the admission process preference may be given to pupils of a particular race or creed, will still be in force. If so, the Committee reiterates its previous request for information on the application of these provisions in practice and for statistical information on the number of schools applying race or creed as an admission requirement as well as the number of pupils enrolled in these schools. Please also provide information on the implementation of the reform of the educational system, in particular on the measures taken to ensure the equal access of boys and girls, men and women from all ethnic groups to education and vocational training and their results.

The Committee is raising other points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

1. The Committee notes that the Government has not yet provided information concerning a number of matters raised by the Committee in its previous comments. The Committee therefore trusts that the Government will provide full information on all the points set out below.

2. Access to education and training. The Committee notes that, under article 39 of the Constitution, everyone has the right to equal access to educational institutions. Section 9(1) of the Education (Establishment and Registration of Schools) Regulations, 1966, provides that while a registered or recognized school may, when selecting pupils for admission, give preference to pupils of a particular race or creed, no pupil shall be denied admission solely on grounds of race or religion. The Government is requested to provide information on the application of these provisions in practice. Please also provide statistical information on the number of schools applying race or creed as an admission requirement and the number of pupils enrolled in these schools.

3. Affirmative action. The Committee notes that article 44 of the Constitution authorizes Parliament to enact legislation providing for affirmative action in favour of disadvantaged groups in areas such as education and training, as well as participation in business and employment in state services. It notes from the progress report on the implementation of affirmative action programmes under the Social Justice Act 2002–03, submitted by the Government to Parliament in 2004, that a number of government agencies have established programmes to promote the training and employment of the indigenous Fijian population. The Committee requests the Government to provide information on the status of the implementation and impact of affirmative action measures taken by the Government in favour of disadvantaged ethnic groups. In this regard, please also provide statistical information on the present levels of participation of the different ethnic groups of the population, disaggregated by sex, in vocational training and both private and public sector employment.

4. The Committee further notes that, under article 44(3) of the Constitution and section 21 of the Human Rights Commission Act, private employers can carry out programmes designed to achieve, for any groups or categories of persons who are disadvantaged, effective equality of access to employment. The Employment Relations Promulgation 2007 provides in section 6(3) that the prohibition of discrimination contained in section 6(2) does not preclude any provision, programme, activity or special measure that has as its object the improvement of conditions of disadvantaged individuals or groups, including those who are disadvantaged on the grounds enumerated in section 6(2). The Government is requested to provide information on the application of these provisions in practice, providing examples of affirmative action measures taken in the private sector.

5. Gender equality. The Committee requests the Government to provide information on the current position of men and women in the labour market, including in the informal economy. Please indicate any concrete measures taken by the competent authorities to promote gender equality in employment and occupation and to follow up on the work-related aspects of the Women’s Plan of Action 1999–2008 and the recommendations established by the 1997 ILO study entitled “Towards equality and protection for women in the formal sector”.

6. Employment under the control of a public authority. The Committee notes that the Employment Relations Promulgation 2007 applies to all employers and workers in workplaces in Fiji, except the military forces, the police force and the prison and correction services (section 3). The Committee requests the Government to provide information on the specific measures taken to promote equal access of men and women from all ethnic groups to the public service, including the army, police and prison service, as well as other employment under the control of a public authority.

7. Cooperation with workers’ and employers’ organizations. The Committee notes that the Government consulted with the representative workers’ and employers’ organizations concerning the enactment of the Employment Relations Promulgation. It requests the Government to provide information on the measures taken to cooperate with these organizations to provide and ensure observance of the Promulgation’s equality provisions in practice.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

1. Legislative developments. Prohibition of discrimination. The Committee notes with interest that the Employment Relations Promulgation 2007, published in the Government Gazette on 2 October 2007 contains a number of provisions applying the Convention. The Committee notes in particular section 6(2) which provides that:

… [n]o person shall discriminate against any worker or prospective worker on the grounds of ethnicity, colour, gender, religion, political opinion, national extraction, sexual orientation, age, social origin, marital status, pregnancy, family responsibilities, state of health including real or perceived HIV status, trade union membership or activity, or disability in respect of recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment relationship.

The Committee also notes that Part 9 (“Equal Employment Opportunities”), section 75, of the Promulgation states that:

… for the purpose of this Part the prohibited grounds for discrimination whether direct or indirect are actual or supposed personal characteristics or circumstances, including: ethnic origin, colour, 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.

2. The Committee welcomes the fact that the Promulgation explicitly prohibits direct and indirect discrimination in employment and occupation and that it covers the prohibited grounds explicitly listed in Article 1(1)(a) of the Convention, as well as a number of additional grounds, as envisaged under Article 1(1)(b). The Committee requests the Government to provide information in its future reports on the implementation of the discrimination and equal opportunities provisions of the Employment Relations Promulgation 2007, including information on the measures taken by the competent authorities to monitor and enforce these provisions, and on relevant cases or disputes brought before the competent bodies. The Committee encourages the Government to undertake training and awareness-raising activities on equal employment opportunities and the related legal provisions and to indicate any such measures taken in this regard.

3. Sexual harassment. The Committee notes with interest that the Employment Relations Promulgation 2007, requires employers to develop and maintain a policy to prevent sexual harassment in the workplace, consistent with the national policy guidelines for preventing sexual harassment developed by the Employment Relations Advisory Board. The Committee notes that the Promulgation addresses sexual harassment by the employer or its representative, as well as by co-workers and that it covers both quid pro quo and hostile environment harassment. The Committee requests the Government to provide information on the progress made with regard to the adoption and implementation of sexual harassment policies at the enterprise level, to provide a copy of the national policy guidelines on the prevention of sexual harassment envisaged under the Employment Relations Promulgation, and to provide information on any cases or disputes concerning sexual harassment brought before the competent bodies.

4. Discrimination based on HIV/AIDS status. In addition to the abovementioned prohibition of discrimination on the basis of real or perceived HIV/AIDS status, the Committee notes with interest the adoption of the 2007 National Code of Practice for HIV/AIDS in the Workplace, which, inter alia, provides important guidance on how to address discrimination based on HIV/AIDS status. The Committee requests the Government to provide information in its future reports on the measures taken or envisaged to promote equal employment opportunities for men and women living with HIV/AIDS and on the implementation of the National Code of Practice and the relevant provisions of the Employment Relations Promulgation.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the Government’s first and second reports on the application of the Convention. The Government’s attention is drawn to a number of issues and requests for further information, as set out below.

1. Article 1(1)(a) of the Convention. Prohibited grounds of discrimination. The Committee notes that article 38 of the Constitution does not refer to all the prohibited grounds listed in Article 1 (1)(a) of the Convention. It therefore hopes that the Industrial Relations Bill will soon be enacted into law and that its provisions on non-discrimination and equal opportunities will be fully in accordance with the Convention, prohibiting discrimination on all the grounds covered by the Convention. In this regard, the Committee notes that the draft Industrial Relations Bill handed over to the ILO in June 2004, contains different sets of prohibited grounds in sections 6 and 79, and urges the Government to harmonize these provisions. The Committee strongly recommends that both sections use the same terminology and refer to all grounds listed in the Convention.

2. Article 1(3). Access to education and training. The Committee notes that under article 39 of the Constitution everyone has the right to equal access to educational institutions. Section 9(1) of the Education (Establishment and Registration of Schools) Regulations, 1966, provides that while a registered or recognized school may, when selecting pupils for admission, give preference to pupils of a particular race or creed, no pupil shall be denied admission solely on grounds of race or religion. The Government is requested to provide information on the application of these provisions in practice. Please also provide statistical information on the number of schools applying race or creed as admission requirement and the number of pupils enrolled in these schools.

3. Article 2. Equality of opportunity and treatment irrespective of race and sex. The Committee notes that article 44 of the Constitution authorizes Parliament to enact legislation providing for affirmative action in favour of disadvantaged groups in areas such as education and training, as well as participation in business and employment in state services. In this regard, the Committee notes from the progress report on implementation of affirmative action programmes under the Social Justice Act 2002-03 submitted by the Government to Parliament in 2004, that a number of government agencies have established programmes to promote the training and employment of the indigenous Fijian population. The programmes, to some extent also benefited Fijians of Indian origin and ethnic minority groups. The Committee requests the Government to provide:

(a)  information on the implementation and impact of affirmative action measures taken on the basis of race and ethnicity, including the measures taken to strengthen the process of reporting and monitoring under the Social Justice Act as announced in the abovementioned 2002-03 implementation report;

(b)  upcoming reports of the Government to Parliament on the implementation of affirmative action measures; and

(c)  statistical information on the present levels of participation of the different ethnic groups of the population, disaggregated by sex, in vocational training and both private and public employment.

4. The Committee further notes that under article 44(3) of the Constitution and section 21 of the Human Rights Commission Act, private employers can carry out programmes designed to achieve, for any groups or categories of persons who are disadvantaged, effective equality of access to employment. The Government is requested to provide in its next report information on the application of these provisions in practice, providing examples of affirmative action measures taken by the private sector.

5. With regard to gender equality, the Committee requests the Government to provide information on the current position of men and women in the labour market, including in the informal economy. Please indicate any concrete measures taken by the competent authorities to promote gender equality in employment and occupation and to follow up on the work-related aspects of the Women’s Plan of Action 1999-2008 and the recommendations established by the 1997 ILO study entitled "Towards equality and protection for women in the formal sector".

6. Article 3(a). Cooperation with workers’ and employers’ organizations and other appropriate bodies. The Committee requests the Government to provide in its next report information on the measures taken to seek the cooperation of employers’ and workers’ organizations and other appropriate bodies, in promoting the acceptance and observance of the Convention’s principle. Please indicate any consultations with the social partners in relation to affirmative action measures, and their outcomes.

7. Article 3(d). Application of the Convention in the public service. The Committee notes that the military force, police force and the prison services are excluded from the application of the Employment Act and that this exclusion is maintained in the Industrial Relations Bill. It also notes the concerns raised by the Committee on the Elimination of Racial Discrimination with regard to the participation of Indo-Fijians and members of ethnic minorities in the army, the police, the prison service, and the public service more generally (Concluding Observations of 21 March 2003, CERD/C/62/CO3, paragraph 18). In the absence of information in the Government’s report on the application of the Convention in the public service, the Committee requests the Government:

(a)  to provide information on the practical measures taken to promote equal access of men and women from all ethnic groups to the public service and any progress made in this regard, including in respect to the military force, the police, and the prison service; and

(b)  to consider extending the legal protection from discrimination envisaged under the Industrial Relations Bill to the military force, the police, and the prison service.

8. Parts III and IV of the report form. Judicial and administrative decisions. The Government is requested to provide any decision by the competent judicial or administrative authorities, including the Human Rights Commission in regard to equality of opportunity and treatment in employment and occupation.