Changes to the law for employees of “essential industries” Employment Relations Promulgation (Amendment) Act 2015

Introduction

1. A new Employment Relations Promulgation (Amendment) Act 2015 has been passed by the Fiji Parliament and published in the Gazette. It came into effect on 11 September 2015.

2. The Amendment Act makes a few changes to the Employment Relations Promulgation 2007 (“ERP”) which apply generally, but its main purpose is to repeal and replace the controversial Essential National Industries (Employment) Decree 2011 (“ENI Decree”), the Employment Relations (Amendment) Decree 2011 and the Public Service (Amendment) Decree 2011 (“the Decrees”), in response to pressure from trade unions and the International Labour Organisation (“ILO”).

3. The Decrees removed public servants and employees of “designated corporations” within “essential national industries” from the scope of the Employment Relations Promulgation 2007. In particular, employees covered by the Decrees lost the ability to use the employment dispute and grievance resolution mechanisms under the ERP.

4. The ENI Decree also:

(a) outlawed trade unions within the “designated corporations”

(b) terminated all pre-existing collective agreements

(c) terminated pending employment-related disputes, grievances and litigation.

(d) replaced unions with in-house “bargaining units” in designated corporations for the purposes of collective bargaining.

ILO involvement

5. Fiji unions complained to the ILO that the Decrees breached fundamental labour standards. Fiji has been given until November 2015 to bring its employment laws into conformity with ILO fundamental principles, failing which the ILO will consider the appointment of a commission of inquiry into the Fiji situation. Such a development could result in trade sanctions against Fiji. It remains to be seen whether the recent Amendment Act will avert a commission of inquiry and the potential trade sanctions.

General Provisions

6. The general changes introduced by the Amendment which apply to all employers and workers include –

(a) a slight relaxation of the rules against discrimination in rates of remuneration. This is to permit different rates of pay to similarly situated workers based on productivity, work-quality, performance and years of service

(b) a provision allowing the Permanent Secretary for Employment to reject the report of an employment dispute between a union and employer where he considers it vexatious or frivolous or where internal procedures have not been exhausted or more than three months has elapsed since the dispute arose

(c) a default provision deeming a report of an employment dispute to have been accepted if the Permanent Secretary does not reject it within 30 days.

Essential National Services and Industries

7. The most significant changes brought about by the Amendment Act are contained in a new Part 19 which the Amendment inserts into the ERP. The new Part 19, among other things –

(a) applies to the existing designated corporations as well as to all “essential services” listed in Schedule 7 of the ERP (the list of essential services in Schedule 7 was previously only for the purpose of regulating strike proceedings and is expressed in very general terms)

(b) introduces a new system for collective bargaining and employer-union dispute resolution in those corporations and services

(c) restores trade union rights to workers in designated corporations (although “bargaining units” and the right of workers to form them have also been retained)

(d) workers in “designated corporations” and public servants may once again report employment grievances to Mediation Services and to the Employment Relations Tribunal

(e) a new Arbitration Court has been established to decide employer-union trade disputes in essential national industries and services and, (it appears), in Government statutory bodies and Government companies

Arbitration Court

8. (a) The Arbitration Court: is a tripartite court made up of:

(i) a Chairperson and Deputy Chairs (appointed by the President on the advice of the Prime Minister after consultation with the Chief Justice)

(ii) employer panel (appointed by the Minister after consulting representative bodies)

(iii) worker panel (appointed by the Minister after consulting representative bodies)

(b) the Arbitration Court is to review and certify all collective agreements between parties who fall within the new Part 19

(c) trade unions and employers who are the parties to a trade dispute may nominate someone from the worker or employer panel as appropriate to hear their dispute with the Chair or Deputy Chair

(d) members of the Court are not judges but have the rights and privileges of a judge of the High Court and must take the judicial oath.

(e) the Court is to determine trade disputes by “arbitration”

(f) an award of the Arbitration Court is not reviewable.

(g) parties may not be represented by lawyers during collective bargaining or before the Arbitration Court

9. The compatibility of the new Arbitration Court with separation of powers and judicial independence guaranteed in the new Constitution is yet to be tested. Whether the new Part 19 satisfies the unions and the ILO also remains to be seen.

10. Implementation of the Part 19 must await the setting up of the new Court and its mechanisms.

Contact

11. Contact either Jon Apted or Nicholas Barnes to discuss further.

Disclaimer

The information and opinions in this Legal Alert are for general information purposes only. They are not intended as specific legal or other professional advice and should not be relied upon or treated as a substitute for specific advice. Munro Leys can accept no responsibility for any loss arising from reliance on the general information contained in this Legal Alert.