Fiji Hotel and Tourism Association, 10 April 2025 – In matters of national policy, particularly where people’s livelihoods are concerned, fairness must never be an afterthought—it must be designed from the start.
As Employer Representatives on the Employment Relations Advisory Board (ERAB), we believe this principle is fundamental in the development of any legislation that governs employment relationships in our country.
The current conversation around the draft ERB has understandably drawn strong reactions from all sides. However, it’s important to first clarify how we got here.
The latest draft of the ERB, running to 188 pages with an accompanying 305-page explanatory document, was circulated to stakeholders with little time for proper review.
Only one formal ERAB meeting was convened following the conclusion of the public consultations, despite this being a significant piece of legislation that deserves due diligence, especially given its far-reaching implications.
Employer representatives did not endorse the draft Bill in its current form for one very specific reason: the process has lacked the depth of engagement that a law of this scale and consequence demands.
We have a fiduciary duty to represent the interests of our employer members, just as the government and union representatives on the ERAB do for their respective stakeholders. This responsibility includes ensuring that any proposed changes to employment legislation are thoroughly evaluated—not only for fairness but also for their impact on business viability, investor confidence, and the broader economic environment.
While the draft Employment Relations Bill is designed to address important labour concerns, several provisions raise serious concerns, and while we understand and even support many of their intended objectives, the potential risks associated with their interpretation and practical application are significant, serious and even misleading.
Ambiguities in legislative language could lead to unintended consequences that negatively affect businesses, workers, and overall economic stability.
Furthermore, the lack of experienced legal drafters in the process may contribute to inconsistencies and unclear provisions that could create legal uncertainty and complicate compliance for employers.
To be clear, we are not opposing reform. We fully support legislative improvements that enhance fairness and efficiency in the labour market and that better address existing gaps in compliance. However, we emphasize the need for due process and full transparency to ensure that all stakeholders—employers, employees, and the government as a significant employer—can engage in meaningful discussions and contribute to well-informed, balanced policymaking.
Among the more concerning elements is the criminalisation of contractual breaches, which could see everyday workplace disagreements being treated as criminal offences.
This approach risks creating a punitive environment rather than fostering productive employer-employee relations. Compounding this are vague terms like “wage theft” and “harassment” that remain undefined, leaving them open to broad and potentially inconsistent interpretation.
Further concerns arise from the Bill’s imposition of absolute liability and the introduction of excessive penalties without adequate consideration of intention.
The prospect of holding company directors liable for issues beyond their direct control is deeply concerning. In a public sector context, this same principle would extend accountability to Permanent Secretaries, effectively making them responsible for actions or oversights they may not have directly sanctioned. Such an approach fails to distinguish between deliberate misconduct and administrative challenges, creating an unfair liability framework that could discourage competent leadership in both the private and public sectors.
As an example, the recent highlighting in the media of claims by teachers on unpaid wages would mean that the PS for Education could be held accountable for a criminal breach of “wage theft”, or the PS for Finance if it was deemed a Ministry of Finance fault – regardless of whether it was a system glitch or simply a HR administrative error.
We have therefore argued that absolute liability provisions remove the ability of employers to provide justifications or defences, even in cases where breaches occur unintentionally or due to circumstances beyond their control.
We have expressed our collective concerns about the criminalisation of usually basic contract breaches that do not involve any moral turpitude or objectively wrongful behaviour. Certain provisions impose criminal liability and severe penalties for contractual breaches for which monetary compensation is usually acceptable and adequate redress. In many of the new offences, whether a breach has occurred is a matter of perspective on which views can differ (e.g., whether a summary dismissal is justified). In other cases, a breach may be unavoidable (e.g., where an employer may be insolvent).
The Bill prescribes excessively high maximum penalties, which are disproportionate to the potential seriousness of the offences and appear to bear no relationship to penalties under other laws for more serious infractions. The penalties appear to assume that all employers are large and breaches extremely serious. No guidance is provided for how penalties within the range are to be determined. The prescribed penalties could lead to the bankruptcy of businesses and the loss of jobs due to unintentional or minor infractions, especially among small and medium-sized businesses.
There are significant concerns regarding the broad and far-reaching powers granted to labour officers under the Bill, including the power to enter and inspect workplaces at any time, demand the production of employment records, issue compliance and penalty notices, and enforce fines for non-compliance. Astoundingly, these new powers exceed the powers allowed to the police, who are charged with dealing with far more serious crimes.
The new ‘harassment’ provisions overlap with and contradict the existing sexual harassment provisions in the ERA and are also inconsistent with the harassment legislation in the Human Rights and Anti-Discrimination Commission Act.
The legislation imposes strict liability on employers for workplace harassment, including sexual harassment, bullying, and other forms of misconduct, without clearly defining what constitutes a “reasonable step” to prevent, investigate, or address such issues. The definition of harassment is circular and focuses solely on the harm experienced by workers without defining what constitutes legitimate action by employers to address or prevent this.
We also recognise the fundamental right of workers to strike as a key mechanism in collective bargaining. However, the legislation should limit the right to strike to cases where negotiations for a collective agreement have failed despite good faith bargaining. This would prevent strikes from being used as a tool for unrelated grievances or matters already covered by existing agreements.
The right to strike in Fiji would be broader than in Australia and New Zealand as a result.
For instance, if strike actions were permitted for matters already covered by existing agreements—such as disputes over bonus payments, disciplinary decisions, or general workplace conditions—businesses could face recurring work stoppages, even when legitimate grievance mechanisms exist. This could create uncertainty for employers, affecting their ability to operate efficiently and plan for long-term investment and workforce stability.
The tourism industry, a major pillar of Fiji’s economy, could be particularly vulnerable to frequent strikes that disrupt services during peak seasons, harming both employers and employees. and given the economic implications felt when the industry was shut down during COVID-19, it is clear that Fiji’s economy cannot survive without tourism.
There has also been strong opposition to the imposition in the Bill for the removal of expiry dates in Collective Agreements. Definitive end dates for agreements are a critical tool for many employers to manage workforce costs, anticipate financial commitments, and negotiate fair terms that reflect changing economic conditions.
As well as the understandable opposition to the new provisions allowing workers to choose between an individual contract of service or a collective agreement while requiring employers to offer these options to new workers – the latter is considered as doing recruitment work for the unions.
The law should not force employers to navigate parallel employment structures that complicate workforce management and erode the benefits of individual negotiation.
Perfection in legislative review may not be achievable, and nor should it delay important progress. But we also believe that haste should never be the enemy of good governance.
Fantasha Lockington – CEO, FHTA (Published in the Fiji Times on 10 April 2025)
Fiji Hotel and Tourism Association
The Voice of the Industry
