Fiji Hotel and Tourism Association, 30 January 2025 – Recent developments surrounding the Employment Relations Act (ERA) Review and the proposed Work Care Bill have left many within Fiji’s private sector deeply concerned and even alarmed.
As the largest economic contributor to the nation, the tourism industry is one of a small group of private sector stakeholders that play a pivotal role in shaping Fiji’s economic trajectory. Small, because our island nation is small and the private sector that contributes significantly to taxes and general economic growth, is smaller still.
We are still hopeful that the convoluted process and hurried timeline for these critical amendments to the national employment laws have not been a missed opportunity for constructive collaboration, that have also raised serious questions about transparency and inclusivity in policy-making.
The consultation period announced for the ERA Review was startlingly brief.
A public notice on December 21, 2024, outlined a consultation period from January 8 to January 17, 2025—effectively less than ten days for stakeholders to engage with complex legislative changes.
The limited access to the draft amendments and the Work Care Bill has left many employers unprepared to provide informed feedback. It remains uncertain whether this situation reflects the relevant ministry’s inexperience and understanding of managing such a crucial legislative change, and whether the government should consider providing clear guidelines to any ministry involved in amending any legislation that inevitably impact its citizens and its economy.
A consultation session for employers held in Suva on January 20th that discussed the full list of proposed amendments was the first time that many attendees fully appreciated the scope and possible implications of the review.
The inability of the employer representatives on the Employment Relations Advisory Board (ERAB) to share these amendments with their wider employer members before this was hindered by the prior requirement of the ministry to sign Non-Disclosure Agreements (NDAs) that effectively kept the proposed changes to a tightly controlled group, and the proposed changes a secret till then.
This enforced secrecy stifled dialogue and limited the diversity of perspectives including the ability to obtain legal opinions that are essential to crafting balanced and effective legislation.
The ensuing compressed timeline for public consultations effectively undermined the quality of stakeholder input, but also diminishes the credibility of legislative change processes.
When legislation directly affecting this dynamic is rushed through without adequate consultation, the long-term implications can be far-reaching and completely out of the experience of a ministry that is usually tasked with managing and enforcing its governing legislation to being the largest contributor to its amendments.
The extensive amendments were advised as “proposed” at the recent consultation with employers, but were often indicated as a “ministry directive” in the tripartite discussion notes next to many very specific changes.
Many of the 142 amendments will fundamentally alter Fiji’s employment laws – often more stringent than those in developed nations such as New Zealand and Australia, raising questions about their feasibility in a developing Pacific Island nation.
The tourism sector as one of the largest employers is particularly alarmed.
The proposed changes could significantly increase operational costs, deter foreign investment, and undermine national productivity, all of which stand in stark contrast to the goals outlined in Fiji’s National Development Plan (NDP), that aspires to achieve 4-5% annual economic growth and reduce unemployment to 3.8%; facing potential derailment under the weight of these amendments.
Provisions such as increased annual leave, expanded maternity leave, paid wages even during imprisonment, and additional public holiday entitlements may seem progressive on the surface but require careful consideration of their economic impact, and some awarenes to the fact that these are often subsidised by the governments in the first world economies where these are in place and copied from.
For a nation grappling with high debt levels and an urgent need to diversify its economy that requires increasing its current attractiveness to foreign investment; these measures could place unsustainable pressure on the private sector and government – another very large employer.
Very little consideration has been given to business size-based compliance challenges, any gradual transitioning, flexibility for economic cycles and the impact of Fiji’s exposure to natural disasters, or for a balance between worker protection and business viability.
Among the most concerning aspects of the proposed amendments are punitive measures with penalties as high as $500,000 and even $1 million for certain breaches that are not just unprecedented, but often unrelated to the context of the breaches.
The amendments introduce fines of up to $200,000 for workplace sexual harassment incidents, even if the perpetrator is not directly associated with the workplace, as well as making fundamental changes to the Employment Court/Tribunal processes that appear to be at odds with the well-established division between civil and criminal jurisdictions.
Additionally, the proposal to grant labour officers wide discretionary powers to enter workplaces at any time, to demand information or remove data may lead to inconsistent or arbitrary enforcement, and potentially create opportunities for corruption.
The Work Care Bill, an equally critical piece of legislation, has received even less scrutiny and requires far wider discussion with other arms of government that are already involved in its application.
Intended to transfer accident compensation responsibilities from the Accident Compensation Commission Fiji (ACCF) to the Ministry of Employment for more effective and efficient claim assessment; the bill contains numerous ambiguities.
The provisions for lump sum compensation for permanent incapacity, employer liability for temporary incapacity, and uncapped damages for personal injury claims remain unclear, nor is it clear whether the ministry has anticipated the liability of handling common law damage claims that will come with the change in responsibility.
It is an ethical and moral responsibility of any government to engage with a broad range of voices as a democratic obligation and a commitment to justice and equality.
There has never been any doubt that the ERA required a review; but to support an enhanced compliance and enforcement framework we must have stakeholder buy-in, ensure that laws are practical and enforceable, and that this results in reducing – not increasing, the burden on enforcement agencies.
Stakeholder feedback can help identify potential challenges (as we are doing right now), provide legislators with a holistic understanding of the issues, allow for timely adjustments, and ensures laws remain relevant and effective over time.
We have the best opportunity now to gain valuable insights for an employment law that would underscore the crucial role that joint efforts and wide consultation play in shaping effective, inclusive, and sustainable legislation.
We repeat what we have been saying on the on-going efforts for the ease of doing business in Fiji – make compliance easier, not harder.
Fantasha Lockington – CEO, FHTA (Published in the Fiji Times on 30 January 2025)
Fiji Hotel and Tourism Association
The Voice of the Industry
