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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 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 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 Employment Law update: Covid-19 pandemic: guidance in a time of global economic downturn

Mar 18, 2020 / by Siwatibau & Sloan posted in Employment Law Fiji, Covid19 Fiji

At the time of writing there are no confirmed cases of Covid-19 in Fiji (following publication of this guidance, Fiji confirmed its first case on 19 March 2020). However the effects of the Covid-19 pandemic are being felt in Fiji and particularly in the tourism sector. Through urgent action to prioritise public health that includes stringent measures to limit contact between people, certain countries or regions have been able to control the spread of Covid-19. However, the economic consequences of these sensible measures have been severe and sudden.

It is uncertain how long this period of economic downturn will last, and in this time businesses will have to adapt to survive by exploring innovative options that may include more remote working, less person to person meetings and individuals taking more responsibility to safeguard one another. Employers also have a duty to provide a safe working environment.

In this legal bulletin we provide general guidance from an employment perspective to assist employers and employees to do what they can to minimise the effects of the economic downturn and work within the requirements of Fiji employment law. This is provided from our firm as a small contribution to the current situation and while we hope it is of assistance, please note that it is provided for general guidance purposes only, and it is not intended to be, and nor should it be taken as, a substitute for legal advice.

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Landmark Fiji Environmental Law Judgment finds TOTAL negligent and liable for pollution incident, upholding Fiji's Environment Management Act and the principle "Polluter Pays"

Mar 2, 2020 / by James Sloan posted in Environmental Management Act 2005, Fiji land law, The Environment Management Act, Environmental governance, Environmental decision making, Commercial law Fiji, Fiji Environmental law, Fiji Court of Appeal, Fiji Planning and Environmental Law, pollution in Fiji, Total negligence, Fuel leak Fiji

A unanimous decision of Fiji’s Court of Appeal Ramendra Prasad v Total (Fiji) Limited, Civil Appeal No. ABU 90 of 2018, 28 February 2020 (Lecamwasam, JA, Almedia Guneratne, JA, Jameel, JA) has found Total (Fiji) Limited (“TOTAL”) negligent and liable for a fuel leak that was discovered in September 2008 close to Nausori on the island of Viti Levu, in Fiji.

In finding TOTAL negligent, liable and responsible for an underground fuel leak, Fiji’s Court of Appeal has affirmed Fiji’s Environment Management Act, 2005, and the principle “polluter pays” as well as affirming the actions and findings of Fiji’s Department of Environment.

In this legal update we focus on the key legal principles affirmed by the Court of Appeal as they are significant in terms of Fiji’s environmental jurisprudence and good governance.

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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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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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