CMNT_TITLE

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Fiji (RATIFICATION: 2002)

Other comments on C111

Observation

Direct Request

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Prohibited grounds of discrimination. Legislation. The Committee requests the Government to provide explanations on the differences between the lists of prohibited grounds of discrimination in section 6(2) of the Employment Relations Promulgation (ERP) of 2007 and in section 75, and clarify the relationship between the two sections as well as the possibility to bring a claim under section 6(2). Since the provisions in the Public Service Act, as amended by the Public Service (Amendment) Decree 2011 (Decree No. 36 of 2011), are modelled on the provisions of the ERP, the Committee also requests the Government to provide explanations on the differences between the lists of prohibited grounds of discrimination in section 10B(2) and section 10C, and clarify the relationship between the two sections and the possibility to bring a claim under section 10B(2).The Committee also requests the Government to provide indications on the meaning of “actual or supposed personal characteristics or circumstances” referred to in section 10C, including any interpretation given by administrative or judicial bodies. Please also provide information on any legislative developments regarding the Anti-Discrimination Law previously announced by the Government and the new Constitution.

Discrimination based on real or perceived HIV status. The Committee welcomes the adoption of the HIV/AIDS Decree 2011 (Decree No. 5 of 2011) which prohibits direct and indirect discrimination against a person having HIV/AIDS or affected by HIV/AIDS, subject to the provisions regarding insurance and other risk assessment and “without prejudice to the safety and human rights of the public of Fiji and elsewhere” (section 21). The Committee notes from the Government’s report that a significant number of workshops on HIV and AIDS in the workplace, in which mainly men participated, took place in 2010, 2011 and 2012. It further notes, according to the Government’s report, that the Ministry of Labour has taken an advisory approach rather than enforcing the provisions of the various acts and codes of practice. A Cabinet Memorandum dated 12 April 2012 was prepared on the HIV and AIDS Recommendation, 2010 (No. 200), inviting the Cabinet to adopt this instrument to facilitate the prevention of HIV and AIDS in Fijian workplaces. The Committee requests the Government to provide information on the measures taken to follow-up on the 2012 Cabinet Memorandum on the HIV and AIDS Recommendation, 2010 (No. 200), including any specific measures taken with a view to promoting equal employment opportunities for men and women living with HIV and AIDS. The Committee also requests the Government to provide information on the manner in which:

(i) the non-discrimination provisions of the ERP regarding HIV and AIDS and of the HIV/AIDS Decree 2011 are being enforced, including information on any cases of discrimination based on real or perceived HIV status in employment and occupation dealt with by the competent authorities;
(ii) the provisions of section 21 of the 2011 Decree relating to the “safety and human rights of the public” are applied in practice, including any interpretation given by courts.

Please continue to provide specific information on awareness-raising activities regarding HIV and AIDS undertaken and indicate the manner in which workers’ and employers’ organizations are involved in such activities as well as the measures taken to increase the participation of women in these activities.

Sexual harassment. Noting the statistical data provided regarding cases of sexual harassment dealt with by the Mediation Services Unit, the Committee notes from the Government’s report the difficulties faced by workers in reporting sexual harassment under the ERP, in particular, as the burden of proof is on the worker and the short-time limit of six months to report an employment grievance (section 111(2) of the ERP). With respect to public service employees, the Committee welcomes the inclusion in the Public Service (Amendment) Decree 2011 of a definition of sexual harassment in similar terms to that set out in section 4 of the ERP, covering both quid pro quo and hostile environment sexual harassment (section 10A) and the obligation for the employer to develop and maintain a policy to prevent sexual harassment at the workplace (section 10D(2)). The Committee requests the Government to ensure effective enforcement of the sexual harassment provisions in the ERP and the Public Service Act, as amended, in particular, to examine the adequacy of existing complaints mechanisms and means of redress available to workers from the private and the public sectors, and to indicate if it intends to take any measures to review and revise the provisions of the ERP regarding the burden of proof and the time limit to submit an employment grievance. The Committee again requests the Government to provide information on the manner in which the 2008 National Policy on Sexual Harassment is being implemented in practice at the workplace level in both the public and private sectors, including information on any internal written policies adopted, grievance procedures established, and preventive measures taken by employers. Please continue to provide information on the number of cases dealt with by the Mediation Services Unit and the courts, and communicate information on the complaint procedure for the public service and the number of cases of sexual harassment dealt with, and the outcome thereof.

Special measures. Persons with disabilities. The Committee notes from the Government’s report the approval of the Inclusive Education Policy which provides a framework ensuring quality education for students with disabilities. It further notes that the Ministry of Education aims to improve the provision of and policies for the education and vocational training services which meet the needs of persons with disabilities. The provision of incentives to employers to promote the employment of persons with disabilities is also envisaged. The Committee requests the Government to provide information on the measures taken for effective implementation of the Inclusive Education Policy with respect to students with disabilities and to promote equal opportunities of persons with disabilities in employment and occupation, including any incentive scheme put in place, and the results achieved.

Cooperation with workers’ and employers’ organizations. In the absence of a reply in the Government’s report, the Committee once again requests the Government to provide information on the concrete activities undertaken by the Employment Relations Advisory Board specifically concerning discrimination and equal opportunity and treatment in employment and occupation. Please also provide information on any other measures taken by employers’ and workers’ organizations on these specific issues, including awareness-raising measures.

Enforcement and practical application. The Committee notes the information provided by the Government on the obstacles faced by the labour inspectors whilst carrying out their enforcement duties, including the lack of resources due to their new responsibilities under the ERP. The Committee also notes the low number of discrimination complaints submitted to the Mediation Services Unit between 2008 and 2012 (57 in total) and that there were only 13 cases of discrimination brought before the Employment Relations Tribunal during that period. The Committee wishes to draw attention to the fact that the low number of complaints may not indicate that discrimination in the workplace is scarce as stated by the Government, but it may indicate a lack of an appropriate legal framework, lack of awareness of rights, lack of confidence in or absence of practical access to procedures, or fear of reprisals (see General Survey on fundamental Conventions, 2012, paragraphs 870–871). The Committee requests the Government:

(i) to take the necessary measures to ensure that the labour inspectorate is in a position to carry out its duties under the ERP with respect to non-discrimination and equality in employment and occupation;
(ii) to provide information on concrete monitoring and enforcement activities carried out, including awareness raising on workers’ rights related to equality and non-discrimination, and relevant extracts of inspection reports; and
(iii) to take the necessary measures to ensure that workers have appropriate access to justice and means of redress in cases of discrimination.

Please also continue to provide information on the number of discrimination cases, if possible broken down by grounds of discrimination, dealt with by the competent authorities and their outcome, including remedies granted and sanctions applied.