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Commercial Law Updates

Fiji Employment Law Update: Covid-19 has led to an amendment to the Employment Relations Act

Jun 1, 2020 / by Siwatibau & Sloan posted in Fiji employment law, Commercial lawyers Fiji, Fiji lawyers, Employment Law Fiji, Covid19 Fiji

The Fiji government's response to the public health crisis posed by Covid-19 has been swift, and remarkable. At the time of writing this response based on WHO advice has reduced the known cases of Covid 19 in Fiji to 3 active cases bringing the number down from a peak of 18. This is a notable achievement, but Fiji's success has come with a steep economic cost.  

In our firm's guidance to employers on 18 March 2020 (available here) published just before Fiji confirmed its first Covid-19 case, we noted that employers and employees may find solutions together to respond to the unprecedented situation. This is based on the premise that employers and employees have the option to work together in good faith to find compromises to employment relationships within the law. The unfortunate reality is that if an employer cannot afford meet wage obligations then employment will end for one reason or another. A little over 2 months after Fiji's first Covid-19 case many of us are aware of a number of Fiji employers who have had no choice but to terminate employment contracts, follow redundancy processes or seek to reduce wages. In exercising all of these options the employer still has the duty to act in good faith. 

On 28 May 2020, the Government of Fiji introduced a Bill before the Parliament of Fiji, Bill No. 12 of 2020, that has passed into law as the Employment Relations (Amendment) Act 2020 (“Amendment”). The Amendment has changed Fiji's employment law with the aim of addressing difficulties faced by businesses due to COVID-19. The intention behind the Bill was explained in the explanatory note to the Bill as “to provide for a more realistic work environment which enables the sustainability of jobs and businesses, and to clarify the meaning of “an act of God” in the Act during the COVID-19 period”.

This commercial law update outlines some of the major changes that this Amendment has made to the law, and how it relates to other sections of the Employment Relations Act 2007 (“ERA”) such as termination of employment and redundancy. 

This article is for information purposes only and is not and should not be relied upon as legal advice. We strongly recommend that any employer or employee concerned about an employment law problem or issue should seek legal advice.

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Fiji Employment Law Update, Redundancy: Employers have a duty to act in good faith and must follow the requirements of Fiji law

Jun 12, 2019 / by James Sloan and Ana Tuiwawa posted in Fiji employment law, Fiji law, Commercial lawyers Fiji, Fiji commercial lawyers, Fiji Redundancy, Redundancy law Fiji

Redundancies are, unfortunately, a fact of life. For the most part they occur because an employer wants to restructure to adapt to a changing business environment. This adaptation means that new roles may be created in, or old roles removed from the employer's organisation. It is the removal of roles (or job positions) within the employer's organisation that leads to that role becoming redundant. When the role is removed the employee in that role is affected, and his or her employment contract terminated, by reason of the redundancy.

Fiji law recognises that employers are entitled to restructure their operations and make roles within their organisations redundant. But Fiji law also regulates this process by amongst other things: restricting the reasons that may justify a redundancy; setting out a redundancy process that must be followed; and setting a minimum standard for the redundancy package that must be given to the employee who may be terminated by reason of redundancy at the end of this process.

In this commercial law update, we provide more information on the minimum standards that employers must follow. But because this is not intended as legal advice and should not be relied on as such - all employers who may be contemplating redundancies should consult a lawyer first. It must also be remembered that at all times all employers owe a duty to treat their employees with good faith, and the redundancy process under Fiji law must not be used as a disguise to terminate employees. Getting this process wrong, can be an expensive mistake, and we briefly discuss recent case law in this regard from a jurisdiction outside Fiji.

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Employment Law: The disciplinary Investigation, why it’s important and how to do one properly

Apr 15, 2019 / by James Sloan posted in Fiji employment law, Summary dismissal, Disciplinary process, LAWASIA

Taking disciplinary action against an employee is perhaps the most challenging task for an employer. This is because in most cases of employee wrongdoing the employer must assume the technical roles of investigator, prosecutor and judge while owing an overriding duty to treat the employee fairly. The body of employment law in Fiji shows that employers can pay a high price for getting any of these stages wrong.

In this commercial law update, we consider the first stage of the disciplinary process - being the investigation to establish the facts of the matter. While in Fiji this stage is usually conducted by the employer, in other jurisdictions, like Australia, NZ, and Malaysia, an employer may seek a qualified third party to undertake an investigation.

In January 2019, the Fiji Law Society organised and hosted the LawAsia Employment Law Forum during which a senior employment lawyer, Mr Brian C Willamson distilled his many years of expert knowledge into a presentation about how to conduct disciplinary investigations to be “effective and fair”. While, it is likely that most employers due to limited resources and qualified investigators will still have to undertake their own investigations, Mr. Williamson’s detailed and expert knowledge provides valuable insights into this process.

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Migrant workers: legal and other challenges for Fiji and the Pacific

Jan 28, 2019 / by James Sloan posted in International Law, climate change, Fiji employment law, Fiji lawyers, Fiji commercial lawyers, Law of the Sea Convention, Pacific Island Rights, Oceans Governance, Tuna fisheries, Migrant labour Pacific, Migrant labour Fiji, LAWASIA

The movement of migrant workers isn’t so much a global hot topic as a burning one. At the LAWASIA Employment Law Forum, 25-26 January, 2019, the key note presentations aimed to address Migrant Labour Issues: The Rights of Migrant Workers and the Obligations of Employers. An objective of this session was to share among delegates how migrant labour is regulated and what challenges are experienced in various Asia Pacific jurisdictions.

This commercial law update is based on the key note presentation provided to the conference to provide an overview of how migrant labour is regulated in Fiji and the Pacific. Due to time constraints for the key note presentations this update expands on some of the themes discussed during the key note presentation at the conference.

For more information on LAWASIA please see here

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Fiji Employment Law: Employers owe the same employment law duties to employees recruited from overseas and jurisdictional limit of the Tribunal is $40,000

Jan 24, 2019 / by Ana Tuiwawa and Mary Muir posted in Fiji employment law, Disciplinary process, Fiji lawyers, Fiji commercial lawyers

This commercial law update discusses a recent decision from Fiji’s Employment Relations Tribunal (“Tribunal”) which outlines important issues on jurisdictional limits and international labour contracting. The case of Daniel Sanchez v Sheraton Resort Fiji was decided by the Tribunal on 16 January 2019, and involved an expatriate chef employed by a large resort.

The Tribunal in awarding $37,670.00 to a Mexican national, Mr. Sanchez, set out important principles regarding:

  • the fair treatment of workers recruited from outside the Fiji jurisdiction
  • applied the same standards of Fiji law to Mr. Sanchez regardless of his nationality and
  • set an important precedent for the Tribunal's own jurisdictional limits.
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Fiji Employment Law: when summary dismissal of an employee goes wrong

Sep 17, 2018 / by Ana Tuiwawa and Mary Muir posted in Fiji's Constitution, Fiji employment law, Dismissal, Summary dismissal, Fiji immigration law, Commercial lawyers Fiji, Fiji commercial lawyers

Pursuant to Fiji law, in situations of serious employee misconduct the employer has two choices, either:

  • a summary dismissal for cause (as set out in section 33 of the Employment Relations Act) when the employer is certain of the facts and those facts warrant immediate termination of employment; or
  • to undertake a disciplinary inquiry to ascertain all the facts and then, if those facts are proven, take appropriate disciplinary action that may include termination of employment, suspension from employment or written warning.

In both situations, the employer is acting “for cause” and, if the employer terminates the employee’s employment, must provide the employee with written reasons for the termination of employment at the time of termination.

In this employment law update we consider summary dismissal (on the spot termination without a disciplinary inquiry process) and note that a recent judgement of Sanjay Lal v Carpenters Fiji Limited (Sanjay Lal v Carpenters) issued from the Employment Relations Court (“ERC”) on 10 August 2018 provides some useful guidance from the ERC in relation to summary dismissal.

In a previous commercial legal update we provided some general information regarding the employer's duties relating to dismissing an employee for misconduct. This update can be found: here

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Brave New World for Workmen’s Compensation Claims – What does this mean for employers and employees?

Jul 26, 2018 / by Mary Muir posted in Fiji employment law, Fiji law, Insurance law Fiji, No fault compensation Fiji, Accident in Fiji, Commercial law Fiji, Fiji lawyers, Fiji commercial lawyers

Parliament has recently passed the Workmen’s Compensation (Repeal) Act 2018 (Act No 30 of 2018). As indicated by its name, it repeals the original Workmen’s Compensation Act 1964 and replaces it with a new regime from 1 January 2019.

Although the date of commencement of the Act is yet to be gazetted (so it is not in force at the date of writing this commercial law update), the effect of the Act is likely to mean that from 1 January 2019 Workmen’s Compensation claims must be brought before and handled by the Accident Compensation Commission (“ACC”) established pursuant to the Accident Compensation Act 2017.

In this commercial law update we briefly consider what this will mean for employees and employers in relation to workplace accidents.

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Fiji Employment Law Update: recent changes employers in Fiji should prepare for

Jul 19, 2018 / by Ana Tuiwawa and Seini Tinaikoro posted in Fiji employment law, Fiji commercial law, Fiji lawyers, Fiji commercial lawyers

The budget announcement on 28 June 2018 saw a number of budget amendment bills amending a number of existing legislation. This employment law update will focus on Bill No.21 of 2018, currently cited as the Employment Relations (Budget Amendment) Act 2018 (“amendment Act”), one out of the fourteen consequential bills that will give effect to the 2018/2019 national budget.

Bill No.21 of 2018 was enacted in Parliament on 12 July 2018, and saw the inclusion of Family care leave and Parental leave provisions in the current Employment Relations Act 2007 (“Act”). The amendments suggest Government’s intentions of supporting working parents and promoting work life balance into Fiji’s current work force.

The amendment Act, is not yet in force, and in this commercial law update we set out what Fiji employers should prepare for now as it seems likely that the amendment Act will be brought into force imminently. In accordance with the usual principles of Fiji employment law, the Act sets out minimum statutory standards that all Fiji employers may exceed but may not fall below.

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Fiji employment law: When can an employer dismiss an employee for misconduct?

Jan 15, 2018 / by James Sloan posted in Fiji employment law, Dismissal, Summary dismissal, Disciplinary process

Fiji's employment law, like that of other common law jurisdictions, is a mix of statutory rights and common law principles. Fiji's Employment Relations Act, provides every employee with clear minimum standards in relation to conditions like leave, hours of work and minimum contract terms that an employer may exceed but cannot fall below.

However, when it comes to dismissing an employee for misconduct an employer must not only consider the Act but also the employee's contract of employment and what the common law sets out an employer must do to accord the employee with a fair process and decision before the dismissal. In situations of employee misconduct this can be difficult to do as emotions may be running high but the employer must still apply the law and often the best course of conduct is not to rush to a final decision.

In this update we consider a recent judgment from the Employment Relations Tribunal that sets out the tests that the employer must meet when terminating an employee for cause. A good understanding of these legal tests and what the Employment Relations Tribunal wants in terms of a fair disciplinary process will assist the employer to reach the right decision, as well as minimise legal risk and the chances of an employee being unfairly dismissed.

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