Legal Opinion
Issue:
- Whether an employee who has been granted leave without pay is entitled to claim annul leave pay.
- How 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 clause their specific collective agreement.
Issue:
- Is it lawful for unions to go on a ‘sympathy strike’?
- Whether Hotels need to release to Fiji Police Details of their employees who are union members?
- Whether it is appropriate that Fiji Police direct their queries to respective union heads?
Legal Opinion:
- ‘Sympathy strikes’ are prohibited in Fiji. Our view is considered against the backdrop of local legislation that has restricted such strike(s). Historically, the Trade Disputes Act had a specific provision that declared any sympathy strike unlawful
- Section 250 (1) of the ERP states: A trade union or employer that has been or is engaged in a strike or lockout that is or has been declared unlawful commits an offence.
- There is no specific legislative provision within ERP which imposes ‘duty of confidentiality’ on employers. There is also no common law implied duty for employers to maintain confidentiality although the same does not necessarily apply to employees.
