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Commercial Law Updates

Update on Construction Contracts – Defect Liability Clauses

Mar 17, 2021 / by Mary Muir posted in Commercial law Fiji, Construction law Fiji, Fiji risk allocation, Fiji commercial lawyers

A recent judgment of the High Court of Fiji has discussed and clarified the operation and legal effect of defect liability clauses in construction contracts.

This Judgment adds to Fiji's jurisprudence for construction law and emphasizes the importance of construction law contracts particularly when things don't go to plan.

We provide a short update in relation to important legal points that have arisen from the High Court's Judgment. The Judgement was also reported in Fiji's national press here

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Fiji Law in the time of Covid-19: Commercial Contract Management guidance in a time of uncertainty

Apr 15, 2020 / by Artika Prasad and Seini Tinaikoro posted in Commercial law Fiji, Fiji contract law, Commercial lawyers Fiji, Fiji risk allocation, Fiji commercial lawyers, Employment Law Fiji, Covid19 Fiji, Corona Virus Fiji law, Contract Law Fiji, Force Majeure Fiji

Everyday life has been severely impacted by COVID-19, and even after the pandemic eases or ends we will have to adjust to new ways of conducting ourselves and our businesses. These are likely to include new methodologies to prepare ourselves better to ensure continuity of businesses, and safeguard the livelihoods of employees.

During these testing times, it is easy to overlook important deadlines, legal obligations and those terms and conditions under a contract which continue to run uninterrupted, and the fulfilment of which may be rendered impossible. This commercial law guidance briefly reviews what options may be available under a contract should businesses face difficulty in performing their contractual obligations.

Please note we provide general guidance only regarding commercial contractual obligations in the context of the current pandemic. This guidance does not cover employment contracts as these should be considered separately in accordance with the Employment Relations Act 2007.

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Fiji Planning law: Fiji’s government has announced new Town Planning Schemes may be adopted for Suva, Lautoka and Nadi - an opportunity for consultation and good decision making

Jul 1, 2019 / by James Sloan posted in Environmental Management Act 2005, Sovereignty, administrative law, Fiji land law, Torrens title system, The Environment Management Act, Environmental governance, Environmental decision making, Environmental Impact Assessments, Commercial law Fiji, Fiji commercial lawyers, Fiji Planning Law, Town Planning Fiji, Town Planning Schemes Fiji

In common with other common law jurisdictions, Fiji exercises State control over land including but not limited to how it may be developed. The regulation of development falls within the domain of planning and environmental law.

The government has announced that in the public interest it is in the process of updating its Town Planning Schemes for Suva, Lautoka and Nadi. This is an important nation building initiative because a Town Planning Scheme will shape future development in all these cities. But, it is also a significant undertaking that provides an opportunity for, and in our view, requires - wide consultation. If this consultative process is successful it will result in better planned development that along with the effective regulation of environmental standards, is essential to create sustainable and resilient cities and towns for Fiji’s future and its citizens' well-being.

In this update, we take a look at Fiji’s planning law framework and set out various reasons why it is vital for Fiji’s citizens to become involved in the consultation process that is being led by the Ministry for Industry, Trade, Tourism, Local Government, Housing and Community Development to create and adopt new Town Planning Schemes.

The reasons that public involvement is vital include but are not limited to:

  • the significance of Town Planning Schemes to the way planning law and decisions operate in Fiji law
  • the fact that the decisions made pursuant to Town Planning Schemes will have far reaching effects on all citizens, and may affect existing property rights
  • Town Planning Schemes should be suited to Fiji’s context and linked to a shared and bold vision for Fiji’s future.

Each citizen who becomes involved in this consultative process has an opportunity to provide her/his views on how Fiji’s towns and cities should develop to improve but also what aspects of Fiji’s culture and values should be part of that future too.

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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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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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UPDATE - Workmen's Compensation (Repeal) Act 2018 is now in effect

Jan 8, 2019 / by Mary Muir posted in Insurance law Fiji, Accident in Fiji, Fiji commercial law, Commercial law Fiji, Fiji commercial lawyers, personal injury Fiji, accident and compensation Fiji

 On Christmas Eve, 2018, the Fiji Government Gazette published a notice of commencement for the Workmen’s Compensation (Repeal) Act 2018, along with an amendment to the Schedule for the Accident Compensation Act adding accidents arising out of and in the course of employment and accidents occurring on school premises or during school events to those covered by the Accident Compensation Act.

In July 2018 we provided an update on the Workmen's Compensation (Repeal) Act which can be found here - this update explained how it would work but it is important for employers and schools to understand the legal implications of the new Act and Regulations.

In this commercial law update we provide a brief update on the effect of the new law and regulations.

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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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Fiji Construction Law Series: Who is liable for sub-standard quality of materials in a construction project?

Sep 4, 2018 / by Atu Siwatibau and Ana Tuiwawa posted in Fiji construction contracts, Construction law Fiji, Fiji commercial lawyers, Defective construction materials Fiji, substandard construction materials Fiji

There have been concerns raised recently within the Fiji construction industry regarding the importation of substandard structural steel for use in construction projects in Fiji.

What happens if substandard quality materials are used in construction projects in Fiji and who is legally responsible?

In this commercial law update, we look at the legal position in relation to substandard materials and warranties implied by law in contracts for works and materials.

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Steps to take to avoid a Will being challenged and declared invalid

Aug 28, 2018 / by Mary Muir and James Sloan posted in Commercial law Fiji, Fiji lawyers, Fiji commercial lawyers, Wills and Probate Fiji, Probate Law Fiji, Fiji Court of Appeal

Every person over the age of 18 should have a Will, as without one, a person dies in a state of intestacy, meaning that where the deceased person’s property goes must be determined by the State in accordance with legal principles related to intestacy.

A well drafted Will is a legal document that enables a person (known as the Testator) to ensure that his or her wishes are respected after death with regard to how property owned by the Testator is distributed.

In Fiji, to be a valid Will it must comply with the Wills Act, 1972 which includes the requirement that the Testator’s intentions must be witnessed by two witnesses who are not beneficiaries of the Will. The strict legal formalities that lead to the formation of a valid Will are why it is advisable to seek a lawyer’s advice before the Will is prepared. The engagement of a private lawyer is not necessary, as the Legal Aid Commission may also provide competent advice in this regard, although before engaging any lawyer (public or private) it is important to understand what charges may apply to administer the estate via what is known as a grant of probate. Probate is the process by which the appointed executors of the Will are appointed by the High Court of Fiji to execute the Will of the Testator in favour of the persons who will benefit from the Testator’s wishes (Beneficiaries).

In this commercial law update we provide some general guidance (not legal advice) on how to minimise the chances of a Will being challenged and overturned by the Court.

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