Employment Relations (Budget Amendment) Act 2018

Introduction

1. In the 2018-2019 National Budget, the Government announced new leave entitlements which affect all employers and workers in Fiji. The new entitlements have been approved by Parliament in the Employment Relations (Budget Amendment) Act 2018 (“2018 Act”).

2. The 2018 Act amends the Employment Relations Act 2007 (“Act”) and introduces:

(a) 5 days’ annual paid family care leave,

(b) a new concept of “parental leave” under which

(i) paid maternity leave is increased from 84 days to 98 days, and

(ii) fathers and expectant fathers are entitled to 5 day’s paid paternity leave.

3. The changes will come into effect on 1 January 2019.

Family Care leave

4. Under the 2018 Act, a worker will be entitled to a minimum of 5 days’ paid family care leave if he or she:

(a) has completed more than 3 months’ continuous service with the same employer, and

(b) ‘seeks to provide care or support to a member of his or her immediate family or household’.

5. The term “immediate family” is defined as a worker’s spouse, child, parent or sibling, while “household” means “the occupants of a dwelling-house who are financially dependent on each other or an occupant of the dwelling house”.

6. Family care leave cannot be accumulated and unused family care leave will lapse in the following year.

7. The 2018 Act requires a worker seeking paid family care leave, as soon as reasonably practicable, to notify the employer of his or her absence or intended absence and the reason for it.

8. The new Fijian family care leave entitlement is different from schemes in neighbouring countries where family care leave is taken in reduction of a worker’s sick leave entitlement. In Fiji, the 5 days’ paid family care leave is in addition to a worker’s 10 days’ paid sick leave per year.

9. The new entitlement is also different in that it is not limited to caring for seriously sick members of a worker’s family. In Fiji, workers will be entitled to take paid family care ‘to care for or support’ their immediate family (regardless of where they live) as well as anyone who lives in the same house as the worker (and who is not immediate family). The 2018 Act does not refer to any need for illness.

Maternity leave

10. The 2018 Act increases female workers’ paid maternity leave entitlements to 98 consecutive days from the existing 84 day entitlement. As before, a female worker is entitled to her full normal pay for her first 3 births and half her normal pay for subsequent births. Maternity leave may be taken before or after the delivery of the child.

Paternity leave

11. Under the 2018 Act, a male worker will be entitled to 5 days’ paid paternity leave if his partner (this includes a spouse or de facto partner) is entitled to maternity leave under the Act, or would have been entitled to such leave if she were employed.

12. The legislation says that a male worker is only entitled if he:

(a) has completed more than 3 months’ continuous service with the same employer

(b) ‘is or is to be a primary caregiver for his child’, and

(c) produces to his employer a certificate from a registered medical practitioner specifying the possible date of birth of his child.

13. As with maternity leave, a worker is entitled on paternity leave days to full normal pay for the first 3 births, and half his normal pay for subsequent births.

14. Paternity leave days can be taken at any time during the 3 month periods before and after the child’s birth.

15. It is difficult to see how the requirement for the male worker to be the primary caregiver will be applied in practice.

Tax Incentives

16. To share the costs of the new initiatives, Government will allow employers to take a 150% tax deduction for remuneration paid to employees while taking paternity or family care leave.

Conclusion

17. Employers will need to review existing Office Manuals/leave policies and/or payroll systems to accommodate the new leave entitlements.

Contact

18. Please contact Jon Apted, Nicholas Barnes or Glenis Yee for further information on this Alert.

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.