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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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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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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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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 Immigration Law: Recent policy change on 14 day business permits

Apr 23, 2018 / by Seini Tinaikoro posted in Disciplinary process, Fiji immigration law, Fiji work permits, Investing in Fiji, Commercial law Fiji, Fiji lawyers

In our Commercial Law update issued on 28 January, 2018 we provided an update on the policy changes made by the Immigration Department regarding work permits which can be found here

This further update specifically addresses recent policy changes by the Immigration Department to the 14 days business permit that may, once issued, be extended up to 3 months. This policy change by Fiji's Immigration Department means that it has now reverted to its original policy that enables 14 days business permits be extended for a period of up to 3 months by operation of section 9 (2) (c) of the Immigration Act 2003. 

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Fiji Construction Law Series: Outline of Common Areas of Risk in Construction Contracts

Apr 13, 2018 / by Atu Siwatibau posted in Fiji commercial law, Commercial law Fiji, Fiji contract law, Construction law Fiji, Commercial lawyers Fiji, Fiji risk allocation, Fiji lawyers, Construction contract checklist

Each construction contract has its own different areas of risk.

In this commercial law update, we consider only the general areas in which risks can arise and need to be managed in a construction contract.

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Fiji Construction Law Series: Negotiating a Construction Contract and some Basic Points to Note

Apr 13, 2018 / by Atu Siwatibau posted in Commercial law Fiji, Fiji construction contracts, Construction law Fiji, Commercial lawyers Fiji, Fiji risk allocation, Fiji lawyers

The best way of ensuring the efficient management of your risk in a construction contract is to negotiate the management and allocation of those risks during the negotiations stage.

The more effort the parties put into ensuring a properly managed and allocated risk profile during the process of negotiation, the more chance there is of the parties avoiding otherwise preventable situations during the implementation of a contract.

In this commercial law update we set out how to negotiate a construction law contract and provide some basic points to note.

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Fiji Construction Law Series: An overview of construction contracts and other relevant law that applies to construction projects

Apr 13, 2018 / by Atu Siwatibau posted in Commercial law Fiji, Fiji construction contracts, Construction law Fiji, Fiji Freedom to contract, Fiji freedom of contract, Fiji lawyers

Construction projects take time to deliver and typically involve multiple parties, including a contractor and professional advisors.

Construction contracts have evolved to large documents that balance risk and reward and set out the processes that must be followed as the construction develops. Despite their apparent complexity the legal principles that underpin a construction contract are the same contract law principles that underpin any other legal contract.

In this update we briefly consider the legal principles and law that common law jurisdictions apply to construction projects.

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