Summary of Legal Opinions 2016 – 2017

The Association regularly seeks legal advice on behalf of their members to clarify issues in the Employment Relations Act (ERA), confirm legislative and regulatory processes and policies and support their members to determine the most appropriate course of action to take when issues arise.

All names (of staff, resort, hotels and unions) have been removed to preserve confidentiality. However, the information and list of opinions are noted here in the understanding that they may provide awareness and information to members in similar situations. We do recommend that members check with the Secretariat on specific issues for clarification on whether these would work for your cases. (www.kbic.com) January 2018

1. Is an employee who has been granted leave without pay is entitled to claim annul leave pay.
2. How is the annual leave pay is computed

The case: A part-time worker of a resort was granted by management 3 weeks of unpaid leave. The union has raised on behalf of the worker that she has been ‘short paid’ her outstanding annual leave pay.

Legal Opinion: According to ERP section 58 (1)  and 59 (1) Irrespective that the worker was given leave of three weeks, she is still entitled to be paid. So if the Worker concerned did not proceed on ‘paid annual leave’, she is in fact owed her pay for annual leave anyway, which needs to be calculated in accordance with the ‘scales’ prescribed in the clause of their specific collective agreement.

 

Can other unions go on a “Sympathy Strike” to support another union and can properties be requested to provide information on staff union association

• Section 250 of the ERP states that a ‘sympathy strike’ is unlawful and a criminal offence. A person found to committing an offence could face up to a fine of $10,000 or imprisonment of up to 2 years.
• Whilst employees are bound by law not to disclose confidential information about their employer, there is No Common Law that states that Employers are unable to share confidential information of their Employees (unless there is a specific provision in the employment contract).
• 2013 Constitution of Fiji prescribes, ‘Right to Privacy’: privacy of their personal information and confidentiality of communication

Opinion: That employees’ employment information should only be released if a search warrant is produced.

 

December 2017

Implementation of Breathalyzer test

Issue: Whether The Resort can carry out breathalyser tests on employees who appear to be under the influence of alcohol during working hours.

• The ERP does not have a specific provision which give authority to an employer to implement a system where employees could be subjected to a breathalyser test or any other forms of mandatory alcohol tests.
• There is although provision in the Constitution of Fiji that protects any person from being subjected to any scientific or medical tests
• Alcohol policies are distinct to different work industries. For example in the airline industry or workers operating heavy machinery, there is zero level for alcohol, or any form of narcotic substances.
•  There is provision in the 1996 OHS Act, Section 9 – (2) b:to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transport of plant and substances.
• OHS Section 13 states……Every worker while at work, take all reasonable care to not take any action that creates a risk for himself or others….

Opinion:

1. As per Section 9 above, The Resort can argue that it intends to implement a system at the workplace to prevent any risk by employees who may be under the influence of alcohol. The employer can argue that employees are tasked to supervise adults and children, including in activities, such as water sports.
2. It is crucial that the worker/employees consent to undergo a breathalyser test is secured in writing. Assess which jobs are High Risk. It would be ideal, if the resort can include provisions for breathalyser test or blood test at the inception of the employee’s employment contract.
3. A Union representative should be present during the testing, and a representative of the Resort for witnesses.
4. The Resort will need to specify the acceptable standard for alcohol limit
5. The Resort should already have in place a grievance procedure in the event disciplinary action is taken against an employee and discuss & outline its Alcohol Policy/Breathalyser machine with the Union.

November 2017

Minimum Standard for Meal Allowance

• According to Wages (Hotel and Catering Regulations 2015), the meal allowance is $7.00 during overtime work only
• There is no legal provision that specifies meal allowances for normal working hours.

Opinion: that employers use good faith in negotiations that is fair and reasonable for both parties.

August 2017

Current Employee Entitlement Upon Sale of Property

Issue:

1. Whether current staff begin new contracts upon sale of property and with new management
2. Whether the existing employment contract is terminated due to new management
3. And if, staff have to work for 12 months before having access to Annual Leave, due to the above new conditions

Opinion:

• ERP Clause 2  – …Purchasers buy the business and take over all “extant contracts and liabilities except as hereafter noted”. Therefore the existing contracts between the current employer remains in force.
• Under the Employment Contract with The Property (Clause 11.01), the company is bound by the current employment contract it has with the individual employee’s and as such a change in shareholding structure does not allow the new shareholders to terminate or vary the current employment contract as per the new shareholders sole discretion.
• An alternative option is to terminate by ‘redundancy’ for economic, technological, structural or similar nature (ERP Section 107-(1))
• The in-coming shareholders can vary or terminate the current employment contract with individual employees provide the employees are consulted prior the action.

July 2017

Payment of Licensing Fee to Fiji Performing Right Association Limited for Public Performance

Issue: Whether hotels/resorts are required to pay a license fee to FPRA – Fiji Performing Right Association – when there are live band performances on their premises. FPRA is the licensing body and collects royalties for the performance and communication of music.

1. Although the FPRA website claims to be the licensing body for Performing Arts, a letter dated 14 Nov 2014 from AG’s chambers suggests that FPRA makes no claim to collect license fees for ‘Performing Rights’. This issue needs to be clarified.
2. If a band owns the copyright of the song/meke/dance they performing, then there is no need for the hotelier/resort owner to pay a license fee
3. This restriction does not apply, if the meke or song was created more than 50 years ago.

Opinion:

• It is the responsibility of the Hotel/Resorts to find out before performances, if the artists/band are performing their own material or have paid FPRA the license fee for ‘Performing Right’
• Perhaps necessary for the Commerce Commission of Fiji to also step in and review the whole process and FPRA’s role

 

Early Retirement on medical grounds

Correspondence by FHTA to lawyers regarding Hotel Staff who requested early retirement due to on-going medical issues.

The Hotel considered terminating the staff due to a history of sickness, insubordination, complaints and low productivity, but risked a Ministry of Labour complaint threat and The Union was also pushing for retirement on medical grounds.

Outcome – A Deed of Settlement was drawn up where both parties agreed to (hotel) release the staff on medical grounds with normal early retirement pay-out and (staff) agreed to accept the settlement and agree not to pursue any further payments from the hotel henceforth.

The importance of staff contracts and inclusion of early retirement options in HR Policies was discussed as being important for the protection of both the staff and management.

June 2017

Television Broadcasting and Satellite TV Usage

Issue: Whether hotels/resorts are breaching the Television Act 1992 by sourcing TV programmes via satellite television for viewing by guests in the privacy of their bedrooms and whether they are infringing any laws, particularly:

1. Intellectual property rights
2. Infringement of copyright

Opinion:

• Hoteliers/resorts are not in breach of the Television Act or any other applicable legislation for that matter, including, Copyright Act 1999
• At the same time, the hotel/resorts need to carefully review the terms of their license to ensure that every programme or content broadcasted is legitimately sourced by the direct broadcast provider.

May 2017

Installation of Cameras v Right to Privacy

Issue: Whether privacy laws in Fiji allow hotels to install cameras on their premises – generally in the front of the hotel and in the reception areas.

In Fiji, there are no specific legislations/laws that regulate privacy except the Bill of Rights provision of the 2013 Constitution of Fiji (Section 24) where everyone has the right to personal privacy.

Opinion:

1. Hotel premises fall under the category of private property, and have a right to installing cameras for safety purposes for the property and guests.
2. It would be the responsibility of management that any video footage be supplied to police for investigations and care taken that rights of any individuals are not breached by disclosing footage to other parties, including on websites and social media.
3. Hotels owe a duty of confidence to their hotel guests in which guests expect their privacy to be protected at all times, including their names and confidential information.

March 2017

Initiation of Collective Bargaining between The Resort and The Union

Issue: Whether The Union should provide names of their members to The Resort.

Opinion:

• Under the ERP, Section 149, states:

“The duty of good faith requires a union and an employer bargaining for a collective agreement to do, at least, the following things:

(e)”the union and the employer must provide to each other, on request and in accordance with section 151, information that is reasonably necessary to support or substantiate claims or responses to claims made for the purposes for the bargaining”.

• There is no provision in ERP entitling a Union from withholding information under section 149 or section 151 of the ERP
• The Resort had requested that before the collective bargaining process begin, that the Resort is made aware of which its workers they need to proceed the bargaining with, as their employment conditions may be varied.

February 2017

Maternity Pay and Requirements of Notification

Issue: Whether an employee is entitled to maternity leave pay if she fails to notify the employer of her pregnancy and ceases to report to duties.

Under section 101 of the ERP:

• “A woman employed in a workplace who expects to give birth is entitled to maternity leave and abstain from work for a period of 84 consecutive days subject to providing her employer with a certificate from a registered medical practitioner or registered nurse specifying the possible date of birth.
• This section also states that a woman is entitled to be paid for a period of 84 days but she must provide her Employer with a medical certificate specifying the possible date of birth of her child

Opinion: The employee is obligated to provide this information to the employer, after being examined by a medical practitioner. Failure to do so results in non-entitlement of maternity payment.

 

Authority to Deduct For Saving Scheme

Issue: The Resort is obligated to deduct money from worker’s wages towards a ‘savings scheme’ incidentally introduced by the Union

Opinion:

• Section 47 of the ERP provides as follows:

(b) with the written consent of the worker, deduct an amount due by the worker as a contribution to a provident fund, school fund, pension fund, sports fund, superannuation scheme, life insurance or medical scheme, credit union, trade union, co-operative society or other funds or schemes of which the worker is a member and must on behalf of the worker pay the amount so deducted to the person empowered to collect  amount or entrusted with the management of the fund, scheme or trade union.

• At the same time, The Union must have an established Credit Union Scheme

December 2016

The Resort questions Union Rep selection legality

Issue: Regarding an ex-Resort staff’s appointment as a Union organizer and union representative, although he is no longer employed by The Resort.

Opinion:

Under the provisions of the ERP, whether the union officer is in employ of the employer company/entity is not relevant.

The only relevant inclusion in the ERP is Section 127, sub-sections 2 and 3:…where…

(a) An officer of the registered union must have been engaged or occupied for a period of not less than 6 months in an industry, trade or occupation with which the Union is directly concerned.

October 2016

Dispute between bank and Union

Issue: The Bank and The Union entered into an MOU on 20 April, 2016. Two days later, the Union submitted a log of claims, when on 4 October 2016, the Union issued a notice to hold a secret ballot for strike.

Opinion: ERP Section 19 states that parties have 90 days to negotiate. If a collective agreement cannot be reached by this time, any party may notify the secretary, whereas the Secretary can consult with a mediator. If after 14 days, there has been no agreement after mediation, the Secretary is required to notify the Minister or the Chair of the Arbitration Court.

September 2016

Withdrawal of Workers from Trade Union and Obligations of Employers

Issues:

1. Whether a worker has the right to join a trade union of his/her choice
2. What is the obligation of the employer, once a worker ceases to be a Union member

Opinion: Under the ERP, a worker has the right to join any Union. There are no provisions regarding the termination of their membership with a trade union. Any provisions, would be outlined in the Trade Union’s Constitution.

Additionally, the worker will not be part of any Collective Agreement or bound by any other collective bargaining until the 60th day before the expiry date of the collective agreement binding on the member before the member resigned as a member of the union.

June 2016

Public Holiday Pay and Rostered Day off

Issue: the Union filed a complaint with Ministry for unpaid public holiday pay due to rostered Days off

1. Should workers at The Resort be paid or not for the above.

Opinion: As part of their Collective Agreement between the Union and The Resort, Clause 5.4 (a) outlines:

“All workers shall be entitled to be paid in respect of each gazetted public holiday for the number of hours which the worker would normally have worked on that day had it not been a public holiday…

Clause 5.4 (c) a worker is to receive an extra day’s pay in addition to his weekly wage Or an extra day-off in lieu provided they worked the day before the public holiday and the day after.