Texts of pending comments

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. Action plan and law enforcement. In its previous comments, the Committee took note of the measures taken by the Government to strengthen the capacities of law enforcement bodies to investigate cases of trafficking in persons, and of the measures designed to protect and rehabilitate the victims. The Committee requested the Government to continue its efforts to ensure that investigations and prosecutions against perpetrators of trafficking are carried out on the basis of sections 112 and 113 of the Crimes Decree 2009 and to facilitate access to immediate assistance to the victims.

The Government indicates in its report that in January 2020, the Fijian Cabinet endorsed the National Anti-Human Trafficking Strategy and Action Plan. The Committee notes with interest that they include measures relating to the identification of victims and referral procedures, as well as the establishment of a case management mechanism to oversee the progression of referrals of trafficking cases and ensure that they take their course from reporting to prosecution. In addition, the Ministry is developing a centralized database to collect data pertaining to human trafficking. The Government also indicates that it has increased the number of officers assigned to the Police Anti-Trafficking Unit, conducted trainings, and launched the project called “Empowering Fijian Civil Society in Countering Trafficking in Human Beings”, with the support of the International Organization for Migration. The Committee observes that, in its 2018 concluding observations, the United Nations Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW) referred to the low prosecution and conviction rates in trafficking cases, despite the high number of reported victims (CEDAW/C/FJI/CO/5 paragraph 31).

The Committee take notes of the measures taken which bear witness to the Government’s commitment to combat trafficking in persons and encourages the Government to continue taking measures to prevent trafficking in persons and ensure that investigations and prosecutions are carried out against perpetrators. In this regard, the Committee requests the Government to provide information on the measures taken within the framework of the National Anti-Human Trafficking Strategy and Action Plan, including information on the functioning of the case management mechanism, and the results achieved. Finally, the Committee requests the Government to provide updated information on the number of investigations, prosecutions, convictions and the penalties imposed with regard to trafficking in persons under sections 112 and 113 of the Crimes Decree 2009.

Protection of victims. The Committee notes the Government’s indication in its report that the Office of the Director of Public Prosecutions, the Immigration Department and the Fiji Police Anti-Human Trafficking Taskforce work together to provide in-house and cross-departmental victim support once the police has arrested the traffickers. Victims of human trafficking also receive counselling and other support services. The Committee notes that, in its 2018 concluding observations, the CEDAW noted deficiencies in the process of identification of victims of trafficking, in particular in the case of women in prostitution, foreign workers in spas and vessel crewmembers who transit through the country (CEDAW/C/FJI/CO/5 paragraph 31). The Committee requests the Government to provide detailed information on the measures taken to identify and provide assistance to victims of human trafficking, for both labour and sexual exploitation, and to support their rehabilitation and social reintegration. Please provide information on the number of victims who have received assistance through the implemented measures.

Article 1(a) of the Convention. Sanctions of imprisonment involving compulsory labour as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. The Committee previously noted the following legislative provisions, which are worded in such general terms that may lead to the imposition of penalties involving compulsory labour (by virtue of section 43(1) of the Prisons and Corrections Act 2006) for activities that could be linked to the expression of political views or views ideologically opposed to the established political, social and economic order:

Public Order Act (POA), as amended by the Public Order (Amendment) Decree 2012:

– Section 14, which provides for sanctions of imprisonment for up to three years for using threatening, abusive or insulting words in any public place or any meeting, or behaves with the intent to provoke a breach of peace or whereby such a breach is likely to be occasioned; and having been given by any police officer any directions to disperse or to prevent obstruction or for the purpose of keeping order in any public place, without lawful excuse, contravenes or fails to obey such direction.

– Section 17, which provides for sanctions of imprisonment for up to 10 years for spreading any report or making any statement, which is likely to undermine or sabotage, or attempt to undermine or sabotage the economy or financial integrity of Fiji.

Crimes Decree 1999:

– Section 67(b), (c) and (d), which provides for sanctions of imprisonment for seven years for uttering any seditious words; printing, publishing, selling, offering for sale, distributing or reproducing any seditious publication; or importing any seditious publication.

The Committee notes that the Government indicates in its report that the Public Order Act is in place to ensure the safety of people from acts of terrorism, racial riots, religious and ethnic vilification, hate speech and economic sabotage.

The Committee recalls that the Convention protects persons who express political views or views ideologically opposed to the established political, social or economic system by establishing that in the context of these activities they cannot be punished by sanctions involving an obligation to work. The range of activities protected include the right to freedom of expression exercised orally or through the press and other communications media, as well as the right of association and of assembly, through which citizens seek to secure the dissemination and acceptance of their views. While recognizing that certain limitations may be imposed on these rights as normal safeguards for public order to protect society, such limitations must be strictly within the framework of the law. In this respect, the protection provided for by the Convention does not extend to persons who use violence, incite to violence or engage in preparatory acts aimed at violence.

In this respect, the Committee observes that in its comments under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), it noted the allegations of the International Trade Union Confederation (ITUC) and the Fiji Trades Union Congress (FTUC) denouncing that permissions for union meetings and public gatherings continued to be arbitrarily refused, and that section 8 of the POA (as amended by the 2012 Decree) has been increasingly used to interfere in, prevent and frustrate trade union meetings and assemblies. The Committee notes in this regard that according to section 10 of the POA, a person who takes part in a meeting or procession for which no permit has been issued or in contravention of the provisions of the POA is liable to a prison sentence (involving compulsory prison labour).

Therefore, the Committee requests the Government to review sections 10, 14 and 17 of the POA and section 67 (b), (c) and (d) of the Crimes Decree to ensure that, both in law and practice, persons who express political views or views opposed to the established political, social and economic system, including through the exercise of their right to freedom of expression or assembly, are not liable to penal sanctions involving compulsory labour, including compulsory prison labour. The Committee further requests the Government to provide information on the manner in which the above-mentioned legislative provisions are applied in practice, including information on the number of prosecutions initiated, convictions handed down, specific penalties applied and on the facts that led to the convictions, as well as information on the grounds on which permits for public meetings and gatherings are granted or refused.

The Committee is raising other matters in a request addressed directly to the Government.

Article 1(d) of the Convention. Penal sanctions involving compulsory labour for having participated in strikes. The Committee previously noted that, according to section 191 BQ (1) of the Employment Relations (Amendment) Act 2015, breaking an employment contract for the provision of essential service and industry, knowing or having reasonable cause to believe that such breaking, either alone or in combination with others, will deprive the public wholly or to a great extent of such service or industry or substantially diminish its enjoyment, constitutes an offence. According to section 256(a) of the Employment Relations Promulgation 2007, such an offence is punishable with imprisonment for up to two years (involving compulsory labour by virtue of section 43(1) of the Prisons and Corrections Act 2006). In its report, the Government indicates that it has taken note of the Committee’s comment in this regard.

The Committee recalls that Article 1(d) of the Convention sets forth the principle that no sanctions involving compulsory labour, including compulsory prison labour, may be imposed on persons for the mere fact of peacefully participating in a strike. The Committee has indicated that when sanctions involving compulsory labour may exist for impairing or endangering the operation of essential services, this should be limited to situations where there is an effective danger, not mere inconvenience (2007 General Survey on the Eradication of Forced Labour, paragraph 175).

Referring to its comments under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) in relation to the need to review the list of essential services and the limitations on the right to strike in essential services, the Committee requests the Government to take the necessary measures to ensure that, both in law and in practice, no persons may be subject to sanctions involving compulsory labour for peacefully participating in strikes. In this regard, the Committee requests the Government provide information on the application in practice of section 191 BQ (1) of the Employment Relations (Amendment) Act 2015, including copies of any relevant court decision, indicating the grounds for prosecution and the penalties imposed, in order to enable the Committee to assess its scope of application.

Article 1 of the Convention. National policy, labour inspection and application of the Convention in practice. The Committee previously welcomed the different measures adopted by the Government to combat child labour and requested it to provide information on their impact.

The Committee notes that the Government indicates in its report that, following the selection of Fiji as a pathfinder country for the attainment of the Sustainable Development Goal (SDG) 8.7 on ‘Ending Child Labour’, the Government has pledged to finalize the National Child Labour Policy and to review the child labour component of the National Employment Policy. It further notes that the Government points out that in the context of the ILO Measurement, Awareness- Raising and Policy Engagement Project (MAP16 Project), the Ministry of Employment, representatives of workers and representative of employers are working together to address and accelerate action on child labour. Both the National Action Plan 2021-2025 and the National Child Labour Policy have been formulated under the MAP16 Project. The Committee further notes from the Government’s report that between June 2011 and May 2021, 247 children were removed from situations involving child labour. The Committee also welcomes the Government’s indication that, from 1 August 2020 to July 2021, the Ministry of Employment carried out 2,964 labour inspections that included enforcement awareness on child labour. The Committee requests the Government to provide information on the adoption and further implementation of the National Action Plan 2021-2025 and the National Child Labour Policy, and their results. In addition, the Committee once again requests the Government to provide updated statistical information on the nature, extent and trends of child labour, if possible disaggregated by gender and age group. Finally, the Committee requests the Government to provide information on the number and nature of violations concerning child labour detected by labour inspectors and the penalties imposed.

Article 2(1). Minimum age for admission to employment or work. The Committee notes the Government’s indication that a proposal to amend the Employment Relations Act 2007 to increase the minimum working age from 15 years to 16 years has been formulated under the MAP 16 Project. The Committee requests the Government to continue to provide information on any modification to the minimum age for admission to work in the national legislation.

Article 7(1) and (3). Light work and determination of light work activities. The Committee previously took note of the legislative proposal to raise the minimum age for light work from 13 to 14 years and requested the Government to include the adoption of a list determining the types of light work activities in the amendment process.

In this respect, the Committee notes with interest the Government’s indication that draft regulations on light work have been formulated under the MAP 16 Project, which include amendments to the Employment Relations Act 2007 to increase the minimum age to carry out light work from 13 to 14 years and a list of light work activities. The Committee hopes that the proposed regulations on light work, including the list of light work activities will be adopted, and requests the Government to provide a copy of these regulations in its next report.

Article 8. Artistic performances. The Committee notes that, according to the Government, draft regulations on the participation of children in artistic performances have been proposed in the framework of the MAP 16 Project. The Committee requests the Government to provide a copy of the regulations to the participation of children in artistic performances, once adopted.

Articles 1(1)(c) and 12 of the Convention. Provision of other services related to jobseeking. In its previous comments, the Committee requested the Government to indicate whether private employment agencies (PEAs) are authorized to offer other services related to jobseeking within the meaning of Article 1(1)(c). The Government refers in its response to the broad definition of an “employment agency” or “employment business” set out in section 3(1) of the Employment Relations (Employment Agencies) Regulations of 2008 (the 2008 Employment Agencies Regulations), which includes “any activity carried out by a natural or legal person in Fiji for the enlisting, registration, recruitment or deployment of persons for employment in Fiji or outside Fiji but excludes any public employment exchanges or public authority”. The Government adds that this broad definition captures any activity for the purpose of jobseeking, but reasonably limits this to activities of this nature to ensure that private employment agencies do not take advantage of the system and the general public. The Committee acknowledges the Government’s reply, which responds to its previous request.

Article 5(2). Targeted programmes to assist disadvantaged workers. The Government reports that assistance to the most disadvantaged workers is primarily provided by the public National Employment Centre (NEC), which is under the Ministry of Employment. The NEC implements the National Employment Policy 2018–2022, which includes among its priorities the promotion of access to overseas employment, creating more income-generating opportunities for those reliant on subsistence activities for their livelihood, the promotion of greater gender equality in employment and enabling persons with disabilities and the elderly to earn an income. The Committee once again requests the Government to indicate whether and in what manner private employment agencies collaborate or participate in any of these measures relevant to implementation of the National Employment Policy 2018-2022, or in any other special services or targeted programmes designed to assist the most disadvantaged workers in securing employment (Article 5(2)).

Article 7. Fees and costs. The Committee notes the Government’s indication that pursuant to Schedule 4 of the 2008 Employment Agencies Regulations, an employment agency or employment business must not charge more than the fees outlined in the Schedule. The Committee once again notes that Schedule 4 displays fees for only the most basic services and enables agencies to charge for unspecified “additional services” (print-outs and database services). Moreover, of the four specific types of fees listed in Schedule 4, the two main services, namely securing jobseeker employment locally or overseas, do not disclose any amounts, stating only “a charge to be paid by the user”. The Government adds that, in addition to specific services, Schedule 4 provides that fees may be charged for unspecified “additional services”, indicating that such fees are capped at FJD 50 per hour of service. The Committee recalls that Article 7(1) contains a general prohibition on the charging of fees or other costs, directly or indirectly, in whole or in part, to jobseekers. Article 7(2) of the Convention provides for the possibility of permitting exceptions from the general prohibition in Article 7(1) of charging fees or other costs. However, the Committee draws the attention of the Government to its 2010 General Survey concerning employment instruments (2010 General Survey), paragraphs 333–334, in which it emphasized that exemptions from Article 7(1) may be authorized when they are “in the interest of the workers concerned” and made in relation to “certain categories of workers, as well as specified types of services provided by private employment agencies”. The Committee noted that use of this provision is subject to: (a) prior consultation of the most representative organizations of employers and workers; (b) transparency through the creation of an appropriate legal framework indicating the limitations on the exceptions made, as well as through disclosure of the fees and costs; as well as (c) providing to the Office through its article 22 reporting obligations information on and the reasons for making use of the exceptions. The Committee reiterates its request that the Government provide information on the reasons for authorizing the exceptions made to the prohibition against fee-charging. In addition, the Committee once again requests the Government to communicate information on the nature and outcome of consultations held with the most representative organizations of employers and workers concerning these exceptions, and on whether the exceptions are limited to certain categories of workers as well as to specified types of services provided by private employment agencies. The Government is also requested to provide information on the application of these exceptions in practice and on the manner in which it is ensured that jobseekers are aware of the amounts of the different types of fees and costs that private employment agencies may charge for both specific and unspecified “additional” services.

Articles 8, 10 and 14. Protection of migrant workers. Adequate machinery and procedures for the investigation of complaints, alleged abuses and fraudulent practices as well as supervision and remedies. With respect to the activities of PEAs in relation to mediating persons to work overseas, the Government indicates that PEAs are required to post a surety bond of 20,000 FJD with the Fijian Government for the purpose of assisting workers in the event that they fail to look after or repatriate Fijian workers mediated abroad. The Government reports that the Ministry of Employment has been working closely with the Fiji Police Force to investigate cases of bogus PEAs advertising to recruit local workers for deployment overseas. It adds that the Ministry has to date successfully prosecuted 3 bogus employment agencies operating illegally, and criminal sanctions were imposed. The Committee requests the Government to continue to provide updated information on the measures taken to prevent and sanction the operation of bogus employment agencies in the country. It also requests the Government to include in its next report reports of the inspection services, as well as updated information on the measures taken to eliminate fraudulent private employment agencies (Articles 10 and 14). It invites the Government to continue to provide information on the measures taken to provide adequate protection and prevent abuses of workers recruited in Fiji by private employment agencies for work abroad. Furthermore, the Government is also invited to provide information on any bilateral agreements concluded in this regard (Article 8(2)).

Articles 11 and 12. Measures to ensure adequate protection and allocation of responsibilities of private employment agencies and user enterprises. The Committee notes the Government’s general indication that the Ministry of Employment, under the Employment Relations Act and the 2008 Employment Agencies Regulations, ensures that Fijians are not exploited in respect to their terms and conditions of employment under their foreign contracts of service, to prevent trafficking and other unlawful forms of labour exploitation by individuals or operators. The Committee once again recalls paragraph 313 of its 2010 General Survey, in which it highlighted the need to have a clear legal framework in place to secure adequate protection and a clear allocation of responsibilities between PEAs and user enterprises in the areas enumerated in Articles 11 and 12 of the Convention, in both a domestic and cross-border context. The Committee therefore requests the Government to provide updated detailed information on all matters referred to in Article 11 of the Convention and on the manner in which responsibilities are allocated and effectively enforced between private employment agencies and the user enterprises in the areas described in Article 12.

Article 13. Cooperation between the public employment service and private employment agencies. Reporting and publication. In response to the Committee’s previous comments, the Government reports that the National Employment Centre Act 2009 requires the NEC to engage with reputable organizations in promoting employment growth and human resource development of unemployed persons registered with the NEC. It adds that from 2017 to 2020, a total of 518 memoranda of understanding were entered into between the private sector and government bodies resulting in 2,752 workplace attachments. The Committee notes that, in response to its previous comments, the Government reports that to date the Permanent Secretary for Employment has not made use of the possibility to pass sub-regulations under the 2008 Employment Agencies Regulations. The Government further indicates that the information and funds that PEAs must provide to the Ministry of Employment for authorization to operate as a PEA are published in the Fijian Government Gazette and local daily newspapers and must include, among other details, the schedule of fees to be charged. Noting that authorizations are valid for one year, the Committee invites the Government to indicate whether and how frequently the authorization information required is published upon renewal of authorization. The Committee also reiterates its request that the Government indicate whether the National Employment Centre cooperates with private employment agencies in research, dissemination and marketing of information, data and services.

Application of the Convention in practice. The Committee requests the Government to provide a general appreciation of the manner in which the Convention is applied, including information on the number of workers covered by the measures giving effect to the Convention. The Government is also requested to provide copies of decisions rendered by courts of law or other tribunals involving questions of principle relating to the application of the Convention (parts IV and V of the report form).

Article 5 of the Convention. Monitoring mechanisms. In reply to the previous request for information on the activities of the Child Labour Unit (CLU), the Committee notes that the Government indicates in its report that the CLU has the specific role of monitoring and training labour inspectorates and other relevant stakeholders on child labour issues. In addition, the CLU carries out investigation of child labour cases and coordinates with employers’ and workers’ organizations awareness raising activities on child labour. The Committee also notes that the Government indicates that the Labour Standards Services Unit ensures the maintenance of a child labour information system with the objective of maintaining proper and effective management of child labour cases. The Committee requests the Government to continue to provide information on the activities of the CLU in identifying and combating the worst forms of child labour and to provide updated information on the number and nature of violations detected. In addition, the Committee requests the Government to provide information on the concrete measures taken to strengthen the role of law enforcement bodies in detecting and combating the worst forms of child labour.

Article 7(2). Effective and time bound measures. Clause (a). Preventing the engagement of children in the worst forms of child labour. Access to free basic education. In its previous comments, the Committee noted the measures taken by the Government to facilitate access to free and basic education and requested for information on their impact.

The Committee notes the Government’s indication that in 2018 the number of children dropping out of school for financial reasons was at an all-time low. The Government adds that, from 1 January 2010 to July 2021, 247 children were removed from child labour and re-integrated into the mainstream education system. The Committee notes that, according to UNESCO statistics, in 2016 the net enrolment rate for primary education was 96.8 per cent; and, in 2015, the effective transition rate from primary to lower secondary general education was 98 per cent. The Committee also notes from the 2017 UNICEF Situation Analysis of Children in Fiji that indirect costs, including uniforms, exercise books and transport continue to drive children from deprived families to drop out of school (page 75 of the UNICEF report). Considering that education is key in preventing the engagement of children in the worst forms of child labour, the Committee requests the Government to continue providing information measures to ensure that all children, in particular those from socially and economically disadvantaged families, have access to free basic education. The Committee also requests the Government to provide updated statistical information on school enrolment rates, drop-out rates and completion rates for both primary and lower secondary education, if possible disaggregated by age and gender.

Articles 3(b) and 7(2)(b) and (e). Worst forms of child labour and effective and time-bound measures. Use, procuring or offering of a child for prostitution and direct assistance for their removal from prostitution and for their rehabilitation and social integration. Taking account of the special situation of girls. The Committee previously noted that prostitution of children was prevalent in the country and urged the Government to take effective and time-bound measures to remove children from this worst form of child labour, taking into account the special situation of girls. The Committee notes that the Government indicates in its report that one of the actionable items of the Measurement, Awareness-raising and policy engagement project (MAP16 Project) in Fiji is to empower law enforcement bodies to remove children from the worst forms of child labour and to strengthen mechanisms for investigation and prosecution. However, the Committee notes that the Government’s report does not provide information on the effective and time-bound measures taken to remove and assist child victims of commercial sexual exploitation and their results. Moreover, the Committee observes that in its 2018 concluding observations for Fiji, the United Nations Committee on the Elimination of Discrimination against Women noted that the child prostitution industry in the country was growing (CEDAW/C/FJI/CO/5, paragraph 33). The Committee requests the Government to take all the necessary measures to ensure that thorough investigations and prosecutions are carried out for persons who engage in the use, procuring or offering of children for prostitution and that sufficiently effective and dissuasive sanctions are imposed. In this regard, the Committee requests the Government to provide information on the number of investigations, prosecutions and penalties imposed. Lastly, the Committee once again urges the Government to take effective and time-bound measures to remove children from prostitution, taking into account the special situation of girls, and to provide concrete information on the number of child victims that have been effectively rehabilitated and socially integrated.

The Committee is raising other matters in a request addressed directly to the Government.

Article 1(2) of the Convention. Payment of benefits abroad. The Committee notes the Government’s indication in its report that, from 1 January 2019, workers or their dependants may claim for a lump-sum compensation due to employment injury from the Accident Compensation Commission of Fiji (ACCF) under the Accident Compensation Act, 2017. The Committee further observes from Part 2, Division 2 [Reg 6] of the Accident Compensation (Employment Accident) Regulations, 2018 that an employer must pay the worker who suffers any personal injury as a result of an accident arising out of and in the course of employment a weekly payment of two-thirds of the worker’s previous earnings for up to 260 weeks. The Committee requests the Government to indicate whether the payment of the lump-sum compensation made by the ACCF and the weekly payments made by employers to victims of employment injuries is due, when they reside outside of Fiji, to: (a) national workers and their dependants; and (b) foreign workers and their dependants.

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government and the social partners this year, as well as on the basis of the information at its disposal in 2019.

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2019 and 15 September 2020 and of the Fiji Trades Union Congress (FTUC) received on 23 May and 13 November 2019, denouncing violations of civil liberties and lack of progress on the legislative reform. The Committee notes the Government’s general reply thereto, as well as to the 2017 and 2018 FTUC observations, and requests it to provide further details on the specific incidents of alleged violations of civil liberties reported by the FTUC.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 108th Session, June 2019)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards (hereafter the Conference Committee) in June 2019 concerning the application of the Convention. It notes that the Conference Committee observed serious allegations concerning the violation of basic civil liberties, including arrests, detentions and assaults, and restrictions of freedom of association and noted with regret the Government’s failure to complete the process under the Joint Implementation Report (JIR). The Conference Committee called upon the Government to: (i) refrain from interfering in the designation of the representatives of the social partners on tripartite bodies; (ii) reconvene the Employment Relations Advisory Board (ERAB) without delay in order to start a legislative reform process; (iii) complete without further delay the full legislative reform process as agreed under the JIR; (iv) refrain from anti-union practices, including arrests, detentions, violence, intimidation, harassment and interference; (v) ensure that workers’ and employers’ organizations are able to exercise their rights to freedom of association, freedom of assembly and speech without undue interference by the public authorities; and (vi) ensure that normal judicial procedures and due process are guaranteed to workers’ and employers’ organizations and their members. The Conference Committee also requested the Government to report on progress made towards the implementation of the JIR in consultation with the social partners by November 2019 and called on the Government to accept a direct contacts mission to assess progress made before the 109th Session of the International Labour Conference. While duly noting the context of the current COVID-19 pandemic, the Committee trusts that the direct contacts mission requested by the Conference Committee will be able to take place as soon as the situation so permits and, if possible, before the next International Labour Conference.

Trade union rights and civil liberties. In its previous comments, the Committee requested the Government to respond in full detail to the FTUC allegations of continued harassment and intimidation of trade unionists, in particular with respect to its National Secretary, Felix Anthony. The Committee notes the Government’s general statement that Mr Anthony has been able to organize and carry out trade union activities without any interference from the Government and that the arrest, search and detention of persons previously alleged by the ITUC and the FTUC were not intended to harass or intimidate trade unionists but to allow the Commissioner of Police to conduct investigations into alleged violations of applicable laws. The Government also affirms that the Commissioner of Police and the Office of the Director of Public Prosecutions are both independent and neither the entities nor their decisions are subject to the direction or control of the Government. The Committee notes, however, the 2020 ITUC allegations that Mr Anthony is currently charged with one count of malicious acts under the Public Order Act, 1969 in relation to his trade union activities following the mass termination of 2,000 workers’ contracts by the Fiji Water Authority in April 2019, which led to protests and the arrest of trade unionists and union members, including Mr Anthony. The ITUC alleges that Mr Anthony was to appear before the court on 1 September 2020 and if convicted, he could receive a fine of up to US$2,500 or be imprisoned for up to three years. The Committee notes the Government’s reply that the arrest and subsequent criminal prosecution of Mr Anthony are not a targeted attack but a matter that is criminal in nature and that the presiding court will make a determination on the criminal charges and penalties imposed, if any. The Committee further notes with concern the ITUC and FTUC allegations of continued intimidation by the police, arrests, detention, interrogation and the filing of criminal charges against trade unionists, as well as prolonged confiscation of personal and union property and violent dispersal of gatherings between April and June 2019. Recalling the interdependence between civil liberties and trade union rights and emphasizing that a truly free and independent trade union movement can only develop in a climate free from violence, pressure and threats of any kind against the leaders and members of such organizations, the Committee requests the Government to make serious efforts to ensure that state entities and their officials refrain from anti-union practices, including arrests, detentions, violence, intimidation, harassment and interference in trade union activities, so as to contribute to an environment conducive to the full development of trade union rights. The Committee requests the Government to consider issuing instructions to the police and the armed forces in this regard and to provide training to ensure that any actions taken during demonstrations respect the basic civil liberties and fundamental labour rights of workers and employers. Furthermore, the Committee firmly expects that any charges against Mr Anthony related to the exercise of his trade union activities will be immediately dropped.

Appointment of members to and the functioning of the Employment Relations Advisory Board to review labour legislation. In its previous comments, having observed the FTUC concerns that the Government had systematically dismantled tripartism by removing or replacing the tripartite representation on a number of bodies with its own nominees, the Committee requested the Government to provide detailed information on the manner in which it designated individuals to these bodies and the representative nature of the organizations that appeared therein. The Committee notes the detailed reply provided by the Government on the appointment of members to the ERAB, the Fiji National Provident Fund, the Fiji National University, the Wages Council and the Air Terminal Service (Fiji) Limited. The Committee also notes the Government’s clarification that, in addition to the ERAB, the National Occupational Health and Safety Advisory Board (NOHSAB) and the National Employment Centre Board (NECB) also have tripartite membership. The Government further indicates, with regard to the ERAB, that: (i) the Minister for Employment is the appointing authority and representatives of workers and employers are appointed from persons nominated by workers’ and employers’ organizations; (ii) appointment of members is undertaken through a consultation process to allow expanded representation of workers from various organizations; (iii) there is no interference from the Government in the designation of representatives of the social partners; and (iv) as the current ERAB membership ended in October 2019, the social partners were invited to submit nominees and both the Fiji Commerce and Employers Federation (FCEF) and the FTUC have already done so at the end of October 2019. The Committee observes, however, that, according to the FTUC, there is no indication as to when the appointment of ERAB members will take place, despite the urgency of the situation, and that the ITUC remains concerned about government manipulation of national tripartite bodies, thus curtailing the possibility of genuine tripartite dialogue. The Committee trusts that the Government will refrain from any undue interference in the nomination and appointment of members to the ERAB and to other tripartite bodies, and will ensure that the social partners can freely designate their representatives. The Committee expects the appointment of ERAB members to take place without delay so as to allow this mechanism to reconvene and meet regularly in order to pursue the labour law review and meaningfully address all outstanding matters in this regard.

Progress on the review of labour legislation as agreed in the Joint Implementation Report. The Committee previously noted with regret the apparent lack of progress on the review of the labour legislation as agreed in the JIR and urged the Government to take the necessary measures with a view to rapidly bringing the legislation into line with the Convention. The Committee notes the Government’s indication that several meetings took place with the tripartite partners and the ILO between June 2018 and August 2019, in which it was agreed that a number of matters under the JIR have already been implemented and that the tripartite partners are making good progress on the outstanding matters concerning the review of labour laws and the list of essential services and industries, despite the FTUC’s boycott and withdrawal from the tripartite dialogue within the ERAB in June 2018, February and August 2019. The Committee notes that, according to the FTUC, the Government’s reference to boycott clearly reveals that there remain issues in the appointment process of ERAB members and shows the Government’s lack of genuine commitment to previously agreed timelines that had led to the boycott. The Committee notes from the resolutions adopted at the 48th biennial delegates conference of the FTUC provided by the Government in its supplementary report that: (i) the FTUC maintains its position on boycotting participation in any tripartite forums until its role as an important stakeholder with sincere engagement is recognized; and (ii) the FTUC expresses concern about the Government’s failure to uphold its commitment to engage in genuine social dialogue and to take any positive action to review the labour legislation, and denounces the way in which the Ministry of Employment, Productivity and Industrial Relations has handled the review process. The Committee further observes that the ITUC calls on the Government to return to the negotiating table with the social partners to fully implement the JIR and to grant safeguards and guarantees to those participating in the dialogue. Finally, the Committee welcomes the Government’s indication in its supplementary report that a detailed Plan of Action with timelines was elaborated with the ILO Country Office in September 2020 to give guidelines to the tripartite partners and the Plan of Action enumerates issues to be addressed in order to implement recommendations of the ILO supervisory mechanisms, including the reconvening of the ERAB, the ERA matrix, the reform of the essential services list, training and sensitization of the police on civil liberties and freedom of association, as well as the organization of the direct contacts mission. In light of the above, the Committee urges the Government to take all necessary measures to continue to review the labour legislation within the reconvened ERAB, as agreed in the JIR and the September 2020 Plan of Action, with a view to rapidly bringing it into line with the Convention, taking into account the Committee’s comments below.

Article 2 of the Convention. Right of workers to establish and join organizations of their own choosing. The Committee had previously noted that the following issues were still pending after the adoption of the Employment Relations (Amendment) Act, 2016: denial of the right to organize to prison guards (section 3(2)); and excessively wide discretionary power of the Registrar in deciding after consultation whether or not a union meets the conditions for registration under the Employment Relations Promulgation, 2007 (ERP) (hereinafter, ERA, section 125(1)(a) as amended). The Committee notes, on the one hand, the Government’s indication that the tripartite partners met in August 2019 to discuss the proposed amendments and all clauses in the ERA matrix but observes, on the other hand, the ITUC and the FTUC allegation that no progress has been achieved since then and the matrix agreed by the tripartite partners is still pending with the Solicitor General’s office. In the absence of any substantial progress in this regard, the Committee urges the Government to finalize the process of review on the basis of the tripartite-agreed matrix so that the necessary amendments for bringing the legislation into full conformity with the Convention may be rapidly submitted to Parliament and adopted.

Article 3. Right of organizations to elect their representatives in full freedom, organize their activities and formulate their programmes. The Committee had previously observed that, pursuant to section 185 of the ERA as amended in 2015, the list of industries considered as essential services included: (i) the services listed in Schedule 7 of the ERP; (ii) the essential national industries declared under the former Essential National Industries (Employment) Decree, 2011 (ENID) (financial industry, telecommunications industry, civil aviation industry and public utilities industry), and the corresponding designated companies; and (iii) the Government, statutory authorities, local authorities and government commercial companies (following the adoption of the Public Enterprise Act, 2019, these are now referred to as public enterprises – an entity controlled by the State and listed in Schedule 1 of the Act or designated as such by the Minister).

The Committee welcomes the Government’s indication that, as agreed in the JIR and with the technical assistance of the Office, a workshop was held on 16 and 17 October 2019 with the participation of the tripartite partners to consider, gauge and determine the list of essential services and industries. The Committee also welcomes that, as a result of the workshop, the tripartite parties agreed on a time-bound plan of action to review the existing list of essential services within the ERAB and to engage in discussion with the aim of restricting limitations on the right to strike to essential services in the strict sense of the term and public servants exercising authority in the name of the State. The Government informs that it has received proposals for amendments from representatives of workers and employers and is currently considering them. The Committee notes, however, the concerns expressed by the FTUC that due to the Minister’s absence from the workshop, all decisions had to be referred to the Solicitor General’s office and that the timelines continue to be ignored without any justification for the delay in convening meetings to finalize the essential national industries list and the ERA matrix.

The Committee wishes to reiterate that while some essential industries are defined in line with the Convention, namely those which had been initially included in Schedule 7 of the ERP, other industries where strikes may now be prohibited due to the inclusion of the ENID in the ERA do not fall within the definition of essential services in the strict sense of the term, including: statutory government authorities; local, city, town or rural authorities; workers in managerial positions; the financial sector; radio, television and broadcasting services; civil aviation industry and airport services (except air traffic control); public utilities industry in general; pine, mahogany and wood industry; metal and mining sector; postal services; and public enterprises in general. The Committee also wishes to emphasize that provisions which prohibit the right to strike on the basis of potential detriment to public interest or economic consequences are not compatible with the principles relating to the right to strike. The Committee recalls, however, that for services which are not considered essential in the strict sense of the term, but in which strikes of a certain magnitude and duration could cause an acute crisis threatening the normal conditions of existence of the population or in public services of fundamental importance in which it is important to deliver the basic needs of users, a negotiated minimum service, as a possible alternative to fully restricting industrial action through imposed compulsory arbitration, could be appropriate. The right to strike may also be restricted for public servants but only those exercising authority in the name of the State. Given the extensive breadth of the services where workers’ rights to take industrial action may be prohibited, as noted above, the Committee urges the Government to meaningfully engage with the social partners without further delay to review the list of essential services, as agreed in the JIR and the October 2019 and the September 2020 action plans, so as to restrict limitations on the right to strike to essential services in the strict sense of the term and public servants exercising authority in the name of the State. The Committee requests the Government to provide information on the progress achieved in this regard.

In addition, the Committee has been requesting for a number of years that the Government take measures to review numerous provisions of the ERA. In the absence of any progress reported in this regard, the Committee recalls that the following issues in the ERA are still pending: obligation of union officials to be employees of the relevant industry, trade or occupation for a period of not less than three months (section 127(a) as amended); prohibition of non-citizens to be trade union officers (section 127(d)); interference in union by-laws (section 184); excessive power of the Registrar to request detailed and certified accounts from the treasurer at any time (section 128(3)); provisions likely to impede industrial action (sections 175(3)(b) and 180); compulsory arbitration (sections 169 and 170, section 181(c) as amended, new section 191BS (formerly 191(1)(c)); penalty in form of a fine in case of staging an unlawful but peaceful strike (sections 250 and 256(a)); provisions likely to impede industrial action (section 191BN); penalty of imprisonment in case of staging a (unlawful or possibly even lawful) peaceful strike in services qualified as essential (sections 191BQ(1), 256(a), 179 and 191BM); excessively wide discretionary powers of the Minister with respect to the appointment and removal of members of the Arbitration Court and appointment of mediators, calling into question the impartiality of the dispute settlement bodies (sections 191D, 191E, 191G and 191Y); and compulsory arbitration in services qualified as essential (sections 191Q, 191R, 191S, 191T and 191AA). In this regard, the Committee observes, from the resolutions adopted at the 48th biennial delegates conference of the FTUC provided by the Government in its supplementary report, the concerns expressed by the FTUC about the inefficiency of the Arbitration Court and the Employment Tribunals, as well as the need to improve the current dispute resolution system in order to reduce considerable delays in resolving disputes. The Committee therefore urges the Government to take measures to review the above provisions of the ERA, in accordance with the agreement in the JIR and in consultation with the representative national workers’ and employers’ organizations, with a view to their amendment, so as to bring the legislation into full conformity with the Convention.

Public Order (Amendment) Decree (POAD). With regard to its previous comments concerning the practical application of the POAD, the Committee notes that the Government simply reiterates that the POAD facilitates the maintenance of public order and that prior permission is required to ensure the carrying out of administrative functions and the provision of law enforcement officers to maintain order. While further noting that the Government points to two instances, in October 2017 and January 2018, in which the FTUC obtained a permit and undertook marches, the Committee observes that, according to the FTUC, its recent requests to march from May, August and November 2019 were all refused. The ITUC and the FTUC denounce that permission for union meetings and public gatherings continues to be arbitrarily refused and that section 8 of the POAD has been increasingly used to interfere in, prevent and frustrate trade union meetings and assemblies. The Committee urges the Government to take the necessary measures to bring section 8 of the POAD into line with the Convention by fully repealing or amending this provision so as to ensure that the right to assembly may be freely exercised.

Political Parties Decree. The Committee had previously noted that, under section 14 of the 2013 Political Parties Decree, persons holding an office in any workers’ or employers’ organization are banned from membership or office in any political party and from any political activity, including merely expressing support or opposition to a political party; and that sections 113(2) and 115(1) of the Electoral Decree prohibit any public officer from conducting campaign activities, and any person, entity or organization that receives any funding or assistance from a foreign government, intergovernmental or non-governmental organization to engage in, participate in or conduct any campaign (including organizing debates, public forums, meetings, interviews, panel discussions, or publishing any material) that is related to the election. In its previous comments, the Committee further observed that the Political Parties Decree was unduly restrictive in prohibiting membership in a political party or any expression of political support or opposition by officers of employers’ or workers’ organizations, and requested the Government once again to take measures to amend the above provisions, in consultation with the representative national workers’ and employers’ organizations. Observing that the Government does not provide any new information and noting the ITUC concerns about the restrictive effect of the Political Parties Decree on legitimate trade union activities, the Committee reiterates its request in this respect.

Article 4. Dissolution and suspension of organizations by administrative authority. The Committee notes the ITUC allegations that in February 2020, the Government suspended five trade unions for failing to submit their annual audited reports and indicated that they faced penalties and deregistration if they continued to fail to comply with the legislation (the Hot Bread Kitchen Employees Trade Union, the Fiji Maritime Workers Association, the Viti National Union of I-taukei Workers, BPSS Co Limited Workers and Carpenters Group of Salaries Association and the I-taukei Land Trust Board Workers Union). According to the ITUC, such arbitrary measures represent a clear attempt at quashing independent trade unions and the legislation does not provide for sufficient guarantees for trade unions to operate without undue interference by the authorities, as demonstrated by section 128(3) of the ERA, which gives the Registrar excessive power to request detailed and certified accounts from the treasurer at any time. The Committee notes that the Government refutes this allegation as baseless and untrue and asserts that any suspension of trade union activity is done in accordance with section 133(2) of the ERA. With regard to the mentioned trade unions, the Government informs that: (i) in June 2019, the Registrar issued notices to 11 unions for failure to submit their annual returns under section 129 of the ERA; in August 2019, the Registrar issued a follow-up notice; and in September 2019, seven trade unions, which had not rectified their breach, were issued a notice of suspension; (ii) the notice of suspension provided the unions two months to show cause as to why their registration should not be suspended; (iii) despite the notice, four unions failed to rectify their breach and in June 2020, the Registrar published a notice of cancellation concerning the four unions; and (iv) the unions were again given two months to rectify their breach and the Registrar only cancelled the registration of those unions that failed to respond to the notice, whereas the remaining three suspended unions were able to submit their annual reports. The Government adds that there are currently 46 active unions in Fiji, which freely conduct their activities and the Registrar does not have the authority to dictate how they operate or function under their constitution, thus ensuring absolute freedom for trade unions to deal with their affairs. The Committee takes due note of the steps taken by the Registrar before suspending or cancelling the registration of the above trade unions and recalls that under section 139 of the ERA, a trade union may appeal a decision against suspension or cancellation of registration to the competent court. Further recalling however that the dissolution and suspension of trade union organizations constitute extreme forms of interference and should be reserved for serious breaches of the law after exhausting other possibilities with less serious effects for the organizations, and observing the ITUC’s allegations that these measures constitute an attempt at quashing independent trade unions, the Committee requests the Government to consider, in consultation with the most representative organizations, any measures that are appropriate to ensure that the procedures for suspension or cancellation of trade union registration are, both in law and in practice, in full accordance with the guarantees set out in the Convention.

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year (see Article 4 below), as well as on the basis of the information at its disposal in 2019.

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2019 and of the Fiji Trades Union Congress (FTUC) received on 23 August 2018, and 23 May and 13 November 2019, denouncing massive dismissals of workers, including members of the National Union of Workers (NUW), restrictions on collective bargaining, especially in the public sector and essential services, and lack of progress on the legislative reform. The Committee notes the Government’s reply thereto. In its previous comment, the Committee also requested the Government to provide a reply to the 2016 observations from Education International and the Fiji Teachers’ Union (FTU) concerning the lack of consultation in regard to wages and terms and conditions of employment. The Committee notes the Government’s reply that it has been continuously meeting with representatives of the FTU and the Fijian Teachers’ Association (FTA) in relation to the terms and conditions of employment, including in November 2018 and February 2019.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. With reference to the long-standing dispute in relation to the Vatukoula Mining Company (concerning the refusal to recognize a union and the dismissal of striking workers over 20 years ago), the Committee recalls that, in its previous comments, it had noted the Government’s indication that the Vatukoula Social Assistance Trust Fund (VSATF) had been established to benefit around 800 recipients through money grants and assistance for relocation, small and microenterprise development and education for dependants. The Committee noted the completion of a mediation process and requested the Government to supply detailed information on its outcome and the follow-up measures taken to compensate the persons concerned, as well as in relation to the VSATF fund. The Committee notes the Government’s indication that, following the mediation process and keeping in mind that it does not have any legal obligation to compensate the concerned workers, it is considering making an ex gratia payment to the workers in view of resolving their grievances but that this will require Cabinet approval. The Committee observes, however, that the Government does not provide any details as to the actual outcome of the mediation or the use of the VSATF fund. Recalling that this long-standing dispute has caused great hardship to the dismissed workers, the Committee expects that it will be finally and equitably resolved through the implementation of a mutually satisfactory settlement. The Committee requests the Government to supply information on the outcome of the mediation process and any compensation granted to the concerned workers, including any recourse to the VSATF fund. It also invites the Fiji Mine Workers’ Union (FMWU) to provide information on any developments in this regard.

Article 4. Promotion of collective bargaining. In its previous comment, the Committee welcomed the repeal of the Essential National Industries (Employment) Decree, 2011 (ENID) through the adoption of the Employment Relations (Amendment) Act, 2015, as well as the removal of the concept of bargaining units from the Employment Relations Promulgation, 2007 (hereinafter Employment Relations Act (ERA)) through the Employment Relations (Amendment) Act, 2016. The Committee noted with regret however that the abrogation by ENID of the collective agreements in force which it had considered contrary to Article 4, had not been addressed and requested the Government to engage in consultations with the representative national workers’ and employers’ organizations with a view to exploring a mutually satisfactory solution in this respect. The Committee notes the Government’s indication that it has provided the necessary conditions under section 149 of the ERA for trade unions and employers’ organizations to engage in good faith employment relations. It indicates that, between 2016 and 2018, there has been successful bargaining between employers and workers resulting in the signing of 63 collective agreements and 59 amendments to collective agreements and that, between August 2019 and September 2020, the Ministry of Employment, Productivity and Industrial Relations registered 20 collective agreements and processed 46 disputes filed by trade unions, including on allegations of failure to engage in negotiations or to implement collective agreements and unfair dismissal of trade union representatives. The Committee observes, however, that, according to the FTUC: (i) all negotiations have been reverted to zero instead of using the abrogated agreements as a basis for discussion; (ii) the topics that can be negotiated in the local Government sector are severely restricted; and (iii) there is a continued refusal of the Government to engage in collective bargaining in the public sector. The FTUC also denounces that all Government-owned entities, including those employing teachers, nurses and civil servants, insist on imposing individual fixed-term contracts without any consultation with the unions, as a way of undermining the right of workers to bargain collectively and achieving the goals of the abrogated ENID. In light of the above, the Committee requests the Government to continue to take concrete measures to facilitate negotiations and promote collective bargaining between workers and employers or their organizations in the public sector so as to create an enabling environment for collective agreements to be concluded in replacement of those abrogated by ENID. It also requests the Government to continue to provide information on the number of collective agreements concluded and in force, the sectors concerned and the number of workers covered by these agreements, as well as on any additional measures undertaken to promote the full development and utilization of collective bargaining under the Convention.

Compulsory arbitration. In its previous comment, the Committee noted that sections 191Q(3), 191(R), 191(S) and 191AA(b) and (c) of the ERA, as amended in 2015, allowed for compulsory conciliation or arbitration and requested the Government to take measures to review the above provisions with a view to their amendment so as to bring the legislation into full conformity with the Convention. The Committee notes the Government’s statement that the Minister for Employment, Productivity and Industrial Relations conducts compulsory arbitration only where he or she considers that the dispute may be resolved by conciliation and that one such dispute has been resolved through compulsory conciliation in 2018. The Government informs that the Employment Relations Advisory Board (ERAB) will review the relevant laws and consider any appropriate amendments. The Committee recalls once again that compulsory arbitration is contrary to the voluntary nature of collective bargaining and is only acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention) or in essential services in the strict sense of the term or in cases of acute national crisis. The Committee expects that the above provisions of the ERA will be reviewed within the ERAB, in accordance with the agreement in the Joint Implementation Report and in consultation with the representative national workers’ and employers’ organizations, with a view to their amendment so as to bring the legislation into full conformity with the Convention.

Articles 1 and 2 of the Convention. Minimum wage fixing. The Committee previously noted the introduction, in 2014, of the first National Minimum Wage (NMW) initially set at 2.00 Fijian dollars (FJD) (0.93 United States Dollar, US$) per hour and raised, effective since 1 July 2015, to FJD2.32 per hour (US$1.08). The Committee also noted that ten sectoral minimum wages were maintained. However, the Committee noted that workers in the garment industry, who are mostly women, are only entitled to a minimum wage of FJD2.24 per hour (US$1.05), less than the National Minimum Wage, whereas, in other industries which are typically male dominant the minimum wage is considerably higher (for example, FJD 3.15 per hour (US$1.47) in the manufacturing industry and FJD3.10 per hour (US$1.45) for an unskilled worker in the building and engineering trades). The Committee asked the Government to provide information on how it is ensured that the criteria currently applied (including skills, experience or level of occupational hazard) are free from gender bias in practice and that female-dominated occupations are not undervalued in comparison with those undertaken by men who are performing different work which is nevertheless of equal value. The Committee also asked the Government to provide information on the implementation of the National Minimum Wage and to assess its impact on the gender pay gap. The Committee welcomes the Government’s indication in its report that pursuant to the Wages (Garment Industry) (Amendment) Regulations, 2017, the minimum hourly wage rate for garment industry workers was increased from FJD2.24 (US$1.05) to FJD2.68 (US$1.25), that is above the National Minimum Wage. It notes that the last review and increase were reflected in the ten sectoral minimum wages maintained, such as for example, Building and Civil and Electrical Engineering Trades, Hotel and Catering Trades, Manufacturing Industry, etc. The Committee observes that the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) in its 2018 concluding observations was concerned about the fact that women are frequently subject to occupational segregation with concomitant wage differentials, are concentrated in lower-paid jobs, the informal economy or unpaid work and, that even within the same industry, the wage differential persists” (CEDAW/C/FJI/CO/5, 14 March 2018, para.39). The Committee asks the Government to indicate the manner in which it is ensured that the minimum wage rates for the abovementioned sectors are fixed, based on objective criteria, free from gender bias, and that work in sectors with a high proportion of women, including the garment sector, is not being undervalued in comparison with work in sectors in which men are predominantly employed.

Articles 2(2)(c) and 4. Collective agreements and cooperation with employers’ and workers’ organizations. The Committee previously asked the Government to provide information on how the Registrar of Trade Unions takes into account the principle of the Convention when reviewing collective agreements and to provide examples of collective agreements, which implement the equal remuneration provisions. The Government states that, in conformity with section 149 of the Employment Relations Act 2007, gender equality is taken into account within the gambit of good faith employment relations while negotiating for a collective agreement. The Government also indicates that awareness raising campaigns on gender equality and equal remuneration for work of equal value were conducted for employers and workers of the ten sectors for which there is a sectoral minimum wage. Recalling the important role that can be played by collective agreements in the application of the principle of equal remuneration for men and women for work of equal value, the Committee requests the Government to indicate: (i) the manner in which it is ensured that, in determining wage rates in collective agreements, the work performed by women is not being under evaluated in comparison to that of men who are performing different work and using different skills, and that the mechanisms of wage fixing adopted by companies were free from gender bias; and (ii) whether and how any forms of cooperation or joint activities of the Government and the social partners have been undertaken to promote the application of the principle of the Convention and the results obtained.

Objective job evaluation. Noting that the Government does not provide information on this point, the Committee asks again the Government to provide information on the conclusions of the Employment Relations Advisory Board (ERAB) mechanism to ensure compliance with ILO fundamental Conventions, especially with regard to the promotion of objective job evaluations and the implementation of section 79 of the Employment Relations Act.

Statistical information. The Committee takes note of the statistical information provided by the Government that, in 2019, there was a significant gender differential between the labour force participation rate of men (76.4 per cent) and that of women (37.4 per cent); between the unemployment rate of men (2.9 per cent) and that of women (7.8 per cent); and between the number of persons engaged in paid or unpaid work (234,059 men and 106,680 women). The Committee requests the Government to provide detailed statistical information on the rates of remuneration of men and women in employment, disaggregated by sex, activity sector and occupational category.

Enforcement. The Committee notes the Government’s repeated indication that most cases dealt with by the labour inspectorate relate to the payment of wages under the Wages Regulation Orders for the ten sectors for which there is a sectoral minimum wage and under the National Minimum Wage. The Committee requests the Government to provide detailed information on the number, nature and outcome of any cases or complaints concerning inequality of remuneration dealt with by the labour inspectors, the courts, or other competent bodies as well as on the sanctions imposed and remedies granted.

Article 1(b) of the Convention. Work of equal value. Legislation. The Committee previously urged the Government to amend section 78 of the Employment Relations Promulgation (ERP) of 2007, which does not comply with the principle of the Convention as it restricts the comparison of remuneration to men and women holding the “same or substantially similar qualifications” employed in the “same or substantially similar circumstances”. The Committee notes the Government’s indication in its report that section 78 of the Employment Relations Act 2007 was amended in 2015 as follows: “An employer must not refuse or omit to offer or afford a person the same rate of remuneration as are made available for persons of the same or substantially similar qualifications employed in the same or substantially similar circumstances on work of that description for any reason […]”. The Committee notes with deep regret that these amendments to section 78 continue to restrict equal remuneration to “persons of the same or substantially similar qualifications employed in the same or substantially similar circumstances”. The Committee recalls once again that equal pay legislation should not only provide for equal remuneration for equal, the same or similar work, but should also address situations where men and women perform different work, requiring different qualifications and involving different circumstances, that is nevertheless work of equal value (see 2012 General Survey on the fundamental Conventions, paragraph 673). The Committee once again urges the Government to take the necessary measures to ensure that the principle of equal remuneration for men and women for work of equal value is duly reflected in section 78 of the Employment Relations Act.

The Committee is raising other matters in a request addressed directly to the Government.

Possible ratification of the Seafarers’ Identity Documents Convention (Revised), 2003 (No. 185), as amended. In its previous comments, noting the Government’s intention to ratify Convention No. 185 and its request for technical assistance in that regard, the Committee requested the Government to provide information on any progress achieved in this respect. The Committee notes the Government’s statement, in its report, that the Ministry of Employment in consultation with the tripartite partners and the relevant stakeholders, in particular the Maritime Safety Authority of Fiji are discussing on the law and practice and how to apply the provisions of Convention No. 185 to commercial maritime fishing. The Committee recalls in this regard the Resolution adopted by the third meeting of the Special Tripartite Committee of the Maritime Labour Convention, as amended (MLC, 2006), whereby it expressed concern about the difficulties seafarers continue to have in accessing shore leave and transiting in certain ports and terminals around the world and recognized that although an increased number of member States have ratified Convention No. 185, there still appear to be problems in ensuring that the Convention works in the way that it was originally intended. Noting that these problems have profoundly increased as a result of the restrictions imposed by governments around the world to contain the spread of the COVID-19 pandemic, the Committee requests the Government to provide information on any progress with regard to the process of ratification of Convention No. 185.

Articles 5 and 6 of the Convention. Readmission and right to enter a territory. The Committee requested the Government to indicate the relevant provisions implementing Articles 5 and 6 of the Convention regarding the rights to readmission and entry into a territory for which this Convention is in force. The Committee notes the Government’s information that currently there is no existing legislation that addresses the application of these provisions of the Convention. The Committee recalls that Articles 5 and 6 of Convention No. 108 have been substantially reproduced in Article 6 of Convention No. 185. Pending the possible ratification of Convention No. 185, the Committee requests the Government to take the necessary measures to give effect to Articles 5 and 6 of Convention No. 108.

Article 1(1) of the Convention. Protection against discrimination. Public service. Legislation. The Committee recalls that the Public Service Act of 1999 does not contain any provision linked to discrimination. In its previous comment, it noted that, following the adoption of the Public Service (Amendment) Decree, No. 36 of 2011, section 10B(2) and section 10C prohibit discrimination in all aspects of employment, based on ethnicity, colour, gender, religion, national extraction and social origin, but omitting political opinion. The Committee asked the Government to: (1) take the necessary measures to include political opinion among the prohibited grounds of discrimination listed in the Public Service (Amendment) Decree; and (2) indicate how public service employees and applicants for public service employment are protected against discrimination based on political opinion in practice. The Committee notes the Government’s indication in its report that Decree No. 36 of 2011 was amended by the Employment Relations (Amendment) Act, 2016, and that Parts 2A and 2B, including sections 10B and 10C of the Public Service (Amendment) Decree, have been repealed. The Amendment Act also amended the definition of “workers” to include contractual civil servants under the Employment Relations Act 2007 (ERA).

The Committee recalls that section 6(2) of the ERA prohibits discrimination on the grounds listed in the Convention, including the ground of political opinion. It also notes that Part I (interpretation), section 4, of the ERA provides that a worker is employed under contract of service, and that the concept of employer includes the Government, other Government entities or local authorities and a statutory authority. The Committee observes that the Public Service Act, 1999, as well as Decree No. 36 of 2011, cover employees in the public sector who are civil servants (career public servants) and that workers in the public sector who are employed under a contract of service are covered by the ERA. In that regard, it stresses once again that sections 10B(2) and 10C of Decree No. 36 of 2011 do not prohibit discrimination on the ground of political opinion. It recalls once again that, where legal provisions are adopted to give effect to the principle of the Convention, they should include at least all the grounds of discrimination specified in Article 1(1)(a) of the Convention. The Committee once again asks the Government to take the necessary measures to ensure that political opinion is included among the prohibited grounds of discrimination listed in the Public Service Act 1999. The Committee also requests the Government to indicate how in the meantime public service employees and applicants to public service employment are protected against discrimination based on political opinion in practice.

Enforcement and access to justice. The Committee recalls that the Conference Committee on the Application of Standards (CAS) (International Labour Conference, 100th Session, 2011) noted that section 266 of Decree No. 21 of 2011 prohibits any action, proceeding, claim or grievance “which purports to or purported to challenge or involves the Government (…) any Minister or the Public Service Commission (…) which has been brought by virtue of or under the [Employment Relations Act]”. The CAS urged the Government to ensure that government employees have access to competent judicial bodies to claim their rights and adequate remedies. Consequently, the Committee asked the Government to provide detailed information on the procedure and means of redress available to workers excluded from the scope of the ERA alleging discrimination in employment and occupation which purport to challenge or involve public authorities. The Government indicates that the Employment Relations (Amendment) Act 2016 repealed the Essential National Industries Decree 2011 (ENI) to allow civil servants and workers in statutory authorities and commercial banks to lodge their claims either through their trade unions as a trade dispute or as individual grievances. The Government adds that any worker, including civil servants, may file or lodge their employment grievance with the Mediation Services of the Ministry of Employment, Productivity and Industrial Relations, including for any matters pertaining to being discriminated against by their employer. According to the Government, in 2019, the Mediation Services received 22 grievances relating to discrimination, of which 13 were individual grievances reported by workers themselves and nine were reported by unions.

The Committee notes that, with regard to workers in the private sector, the ERA provides for a range of avenues of redress, such as the mediation services, the employment relations tribunal and the employment relations court. Regarding civil servants, the Public Service Regulations (L.N. 48 of 1999) provide in paragraph 28 that a chief executive must put in place, in his or her Ministry or department, appropriate procedures for employees to seek review of action that they consider adversely affects their employment. The Committee notes that section 266 of Decree No. 21 of 2011 may apply to both workers in the private and public sectors, as it prohibits any action, proceeding, claim or grievance “which purports to or purported to challenge or involves the Government (…) any Minister or the Public Service Commission”.

The Committee further notes that the National Commission on Human Rights and Anti-Discrimination (CHRAD), established in 2009 under article 45 of the Constitution, can receive and investigate complaints of discrimination and seek to resolve them through conciliation. Where complaints remain unresolved, the CHRAD can refer these to a legal process. The Committee asks the Government to: (i) take the necessary measures to ensure that workers who purport to challenge the public authorities, in case of discrimination in employment or occupation have a formal avenue of redress; (ii) provide information on the application in practice of section 266 of the ERA; and to provide information on the anti-discrimination activities of the National Commission on Human Rights and Anti-Discrimination in employment and occupation; and (iii) report any cases brought before it and their outcome.

The Committee is raising other matters in a request addressed directly to the Government.

Fiji (ratification: 2002)

Article 1 of the Convention. Scope of application. Previously, the Committee noted that article 26(3)(a) of the Constitution prohibits direct or indirect discrimination. It also noted that under article 26(8)(c) and (f), a law is not inconsistent with the prohibition of discrimination on the ground that: (1) “it imposes a restriction on persons employed or engaged in a State service” or that (2) “it excludes persons from holding certain public offices”. Consequently, it asked the Government to indicate how such exceptions are applied in practice. The Committee notes the Government’s indication in its report that such exceptions concern, for instance, police officers (Police Act, 1965) who are prohibited from taking part in any political organization or electoral campaign, or from engaging in any other activity which is likely to interfere with the impartial discharge of their duties. The Committee recalls that the purpose of the Convention is to protect all persons against discrimination in employment and occupation on the basis of race, colour, sex, religion, political opinion, national extraction and social origin, with the possibility of extending its protection to discrimination on the basis of other grounds, and that no provision in the Convention limits its scope as regards individuals or branches of activity. It wishes to stress that, where certain categories of workers are excluded from the general protection of labour or employment law, it needs to be determined whether special laws or regulations apply to such groups, and whether they provide the same level of rights and protection as the general provisions (see General Survey of 2012 on the fundamental Conventions, paragraphs 733 and 743). The Committee asks the Government to indicate the manner in which the workers under the exceptions of article 26(8)(c) are protected in practice from discrimination in employment and occupation on the basis of the grounds listed in Article 1(1)(a) of the Convention.

Article 1(1)(a). Discrimination based on sex. Sexual harassment. Previously, the Committee asked the government to provide information on the progress achieved in relation to the extension of the six-month time limit to submit an employment grievance. It also asked the Government to consider reviewing the burden of proof that is currently imposed on the worker filing a complaint for sexual harassment (section 111(2) of the Employment Relations Act of 2007 (ERA)). The Committee notes once again the Government’s reference to the legislative framework with respect to sexual harassment, including section 76 of the ERA and the National Policy on Sexual Harassment in the Workplace of 2008. In this regard, the Committee takes due note of the ratification of the Violence and Harassment Convention, 2019 (No. 190), by the Government on 25 June 2020. The Committee asks again the Government to: (i) provide information on any progress achieved in relation to the extension of the six-month time limit to submit an employment grievance; (ii) consider reviewing the burden of proof which is currently imposed on the worker filing the sexual harassment complaint; and (ii) report on the measures taken to raise awareness among workers and employers about sexual harassment and on the cases of sexual harassment dealt with by labour inspectors and courts.

Article 1(1)(b). Discrimination based on real or perceived HIV status. The Committee notes the Government’s indication that the enforcement powers of the Ministry of Employment, Productivity and Industrial Relations, as foreseen the ERA, contributes to equal employment opportunity for all workers. The Ministry also enforces the national code of practice for HIV/AIDS in the workplace and section 63 of the Health and Safety at Work Act of1996. Moreover, the labour inspectors from the Labour Standard Services and Occupational Health and Safety conduct labour inspections and awareness activities for equal employment opportunity for all workers. The Government adds that this is a proactive approach to ensure that workers are informed of their rights at shop-floor level. The Committee asks the Government to: (i) continue to provide information on the measures taken to combat discrimination on the grounds of real or perceived HIV status in employment and occupation, including at the recruitment stage, and on measures taken to raise awareness about the provisions of national legislation, including the remedies available and the applicable penalties; and (ii) provide information on any cases of discrimination on the grounds of real or perceived HIV status brought to the knowledge of, or that have been identified by, labour inspectors.

Special measures. Persons with disabilities. The Government indicates that the Ministry of Women, Children and Poverty Alleviation provides grants to disabled children through care and protection allowances, school bus fare assistance, tuition free grants and free textbooks to all children, including children living with disabilities. In addition, section 84(4) of the ERA provides that any employer who employs 50 or more workers may employ physically disabled persons on a ratio of at least 2 per cent of the total number of workers employed. The Government also indicates that workers with disabilities have the same right as any workers without disabilities in terms of filing employment grievances and asking for equal pay for work of equal value. It adds that the Fiji National Council for disabled persons advocates for all persons with disabilities through inter-government awareness programmes with the Ministry of Employment Productivity and Industrial Relations, The Committee asks the Government to provide information on: (i) the results of the application of section 84(4) of the ERA in providing equal employment opportunities for persons with disabilities, both in the private and public sectors; as well as (ii) the activities of the Fiji National Council for disabled persons in the domain of employment and occupation.

Article 2. National policy for equality of opportunity and treatment. Gender equality. The Committee notes from the Fijian Beijing+25 National Report that the country’s ranking on the World Economic Forum’s Global Gender Gap Report has improved significantly from 2015, shifting 15 places up from 121 to 106 out of 187 countries in 2018. As of 2018, 20 per cent of parliamentary seats were held by women, and 77.3 per cent of adult women had reached at least a secondary level of education compared to 68.3 per cent of their male counterparts. In its Beijing+25 National Report, the Government also indicates that: (1) in 2017 unemployment rates were 7.8 per cent for women and 2.9 per cent for men; (2) the number of women in paid employment has declined steadily over the past years, from 39 per cent in 2002 to 33 per cent in 2011, and to 31.3 per cent in 2017, and that this is mainly linked to the work of women in the informal sector; (3) only 19 per cent of businesses are registered to women and most of those are micro and small businesses; and (4) data shows significant gender differentials in the labour force participation rates, with 76.4 per cent for men and 37.4 per cent for women. The Government also indicates that, as part of the National Gender Policy, , in 2018 it reaffirmed the value of unpaid care and parental leave by taking measures to include provisions in the ERA to recognize 5 days of paternity leave, 5 days of family care leave, and an increase in maternity leave from 84 days to 92 days. Moreover, during the period 2014–18, a total of 6,900 women had accessed the South Pacific Business Development (SPBD) support towards micro enterprises. The SPBD provided training and guidance to help women start, grow and maintain microbusinesses, build assets and finance home improvements and children’s education. The Government indicates it has also identified a number of barriers to women’s economic empowerment, in particular, greater burden of unpaid household and care work, lower levels of education and lower levels of access to market-related information. The Committee asks the Government to indicate the measures taken in the framework of the new Women’s Plan of Action, or any other measures to: (i) address obstacles to women’s employment, in particular patriarchal attitudes and gender stereotypes and the lack of access to productive resources, and (ii) enhance women’s economic empowerment and promote their access to equal opportunities in formal employment and decision-making positions. The Committee also asks the Government to provide statistics, disaggregated by sex, on the participation of men and women in education at all stages and in the various vocational training courses offered, as well as on the number of men and women who have filled vacancies following such training, including for jobs traditionally held by persons of the other sex.

National policy to promote equality of opportunity and treatment irrespective of race, colour and national extraction. The Committee recalls the adoption in 2008 of the Peoples’ Charter for Change, Peace and Progress, which aims to prohibit and eliminate discrimination, in particular racial discrimination, and to promote equal opportunities for all, including minority groups such as the “i-Taukei”, in relation to access to education, vocational training, employment and various occupations. The Government indicates that the Ministry for “i-Taukei” Affairs has put in place a number of programmes to promote equality in employment and occupation for all Fijian, regardless of race and ethnicity, including food vouchers for rural mothers and women who attend health facilities for prenatal care, training for rural women within the Women’s Resource Centre, and free-of-charge medical schemes to all Fijian who earn less than 20,000 Fijian dollars. The Committee asks the Government to continue to provide information on any national policy adopted recently to promote equality of opportunity in employment and occupation irrespective of race, colour and national exaction.

General observation of 2018. With regard to the above issues, and in more general terms, the Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction which was adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population.

The Committee draws the Government’s attention to its general observation of 2018 and requests the Government to provide information in response to the questions raised in that observation.

Article 3(a). Cooperation of employers’ and workers’ organizations. The Government indicates that, the workshop organized by the Fiji Commerce and Employers Federation (FCEF) has assisted employers in developing policies in relation to sexual harassment and discrimination in line with the ERA. The Compliance Unit within the Ministry of Employment, Productivity and Industrial Relations has conducted awareness-raising activities for workers and employers through labour inspection programmes to ensure that workers and employers understand the concept of compliance on issues related to sexual harassment and discrimination. The Committee takes note of this information.

Article 3(d). Promoting equality in employment under the control of a public authority. Previously, the Committee asked the Government to provide information on measures taken to ensure equality of opportunity and treatment of men and women from all ethnic groups in employment in the public service, as well as up-to-date statistics on the presence of men and women, from all ethnic groups, in the different categories, levels and grades in the public service. The Government indicates that the qualification requirements and process for appointment in the Civil Service are based on an open, transparent and competitive selection process, and that government ministries and departments do not maintain a register of their employees mentioning their ethnic or racial background. In this regard, the Committee refers its 2018 general observation acknowledging that, in certain Member States, legislation and procedures do not allow for the collection and publication of employment statistics disaggregated by ethnic origin. The Committee wishes to point out that qualitative research on the nature and extent of labour inequalities, including its underlying causes, is crucial to design and implement a relevant and effective national equality policy under Articles 2 and 3 of the Convention, and monitor and evaluate its results. In addition to any statistical data respectful of confidentiality, the Committee asks the Government to provide: (i) copies of any dedicated surveys, studies or research undertaken to determine the nature, extent and causes of discrimination in the public service, and (ii) information on any measures taken or envisaged to ensure equality of opportunity and treatment of men and women from all ethnic groups in employment in the public service.

Articles 3 and 5. Equal access to education and vocational training. Affirmative action. Previously, the Committee noted that the Education (Establishment and Registration of Schools) Regulations, of 1966, which provide that, in the admission process, preference may be given to pupils of a particular race or creed, was still in force. It noted that according to the Government’s report, a draft Education Decree was being prepared to repeal the Education Act and all its subordinate legislation, including the 1966 Regulations. The Committee notes the Government’s indication that in Fiji there are 737 primary schools and 173 secondary schools, and that these schools do not practise race-based school enrolment of any form particularly given the anti-discrimination law in the Constitution. The Government adds that children also have the right to be enrolled into their school zones. The Government has also introduced the Toppers and the Tertiary Education and Loans Schemes providing equal opportunity for every Fijian to quality and accessible tertiary education. This scheme is intended to provide financing to Fijian students who have qualified for higher education in approved institutions of higher learning but are unable to support themselves financially. The Committee observes that the Government’s report contains no information on the legal reform of the education system, including the Education (Establishment and Registration of Schools) Regulations of 1966. It also notes that the United Nations Special Rapporteur on the right to education, in his 2016 Report following his mission to Fiji, commended the policy measures taken by the Government to rename schools which had ethnic names to eliminate schools based on ethnicity. The Special Rapporteur also indicated that education reforms had been rapidly advancing in Fiji; however, the underlying legal framework (mainly the Education Act of 1996) had not kept pace and needed to be modernized (A/HRC/32/37/Add.1, 27 May 2016, paragraphs 54 and 97). In light of the above, the Committee asks the Government to provide information on the progress made in the adoption of a new education legal framework, including the repeal or amendments of the Education (Establishment and Registration of Schools) Regulations of 1966.

Enforcement and application in practice. The Committee notes the Government’s indication that it plans to conduct a further 15,000 labour inspections from 2019 and in the next five years to ensure that the issues concerning labour complaints, including discrimination, are properly addressed by workers and employers. It also indicates that for the period of its report there has been no reported case of complaints in relation to discrimination. The Committee asks the Government to (i) provide information on the measures taken to enhance the capacity of the competent authorities, including judges, labour inspectors and other public officials, to identify and address cases of discrimination; and (ii) supply information on any judicial or administrative decisions involving the application of the principle of the Convention as well as on the number and type of infractions detected by labour inspection services and any remedies provided or sanctions imposed.

Article 3 of the Convention. Election of representatives of employers and workers organizations. In its previous comments, the Committee requested the Government to explain the manner in which the representative national workers’ and employers’ organizations have been able to determine their representatives. In this regard, the Committee notes the discussion that took place in the Conference Committee on the Application of Standards (the Conference Committee) in June 2019 concerning the application by Fiji of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Conference Committee called upon the Government to, inter alia, refrain from interfering in the designation of the representatives of the social partners on tripartite bodies and to reconvene the Employment Relations Advisory Board (ERAB) without delay, in order to start a legislative reform process. The Government indicates in its report that, according to the 2007 Employment Relations Act, the Minister for Employment is the appointing authority for the ERAB, and representatives of workers and employers are appointed from among persons nominated by workers’ and employers’ organizations. It adds that there is no Government interference in the designation of representatives of the social partners to the ERAB. In this context, the Committee notes section 8(3) of the 2007 Act, which provides that, in making appointments to the ERAB, “… the Minister may take into account the principles of equality set out in section 38 of the Constitution, necessary for the effective operation of the Board.” The Government reports that, after the expiration of the ERAB membership in October 2019, it invited the social partners to submit their nominees to the Minister. The Fiji Commerce and Employer’s Federation (FCEF) submitted their nominees on 21 October 2019 and 23 October 2019, respectively, while the Fiji Trades Union Congress (FTUC) submitted their nominees on 30 October 2019. The Committee nevertheless refers to its 2019 observation in relation to the application of Convention No. 87, in which the FTUC observed that the Government provided no indication regarding when the appointment of the ERAB members would be made, despite the urgency of the situation, also recalling the observations of the International Trade Union Confederation (ITUC),which expressed concern about government manipulation of national tripartite bodies, thus curtailing the possibility of genuine tripartite dialogue. Referring to its 2019 observation under Convention No. 87, the Committee expresses its firm hope that the Government will refrain from any undue interference in the nomination and appointment of representatives of the social partners to the ERAB, and will take steps to ensure that the social partners are able to freely designate their representatives. The Committee urges the Government to take steps to appoint the ERAB members without delay so that the ERAB may reconvene and hold regular tripartite consultations for the purposes of the procedures covered by the Convention. It requests the Government to provide updated information on progress made in this regard. In addition, the Committee requests the Government to describe the manner in which the discretion provided for under section 8(3) of the 2007 Employment Relations Act has been applied in practice.

Article 5(1) of the Convention. Effective tripartite consultations. The Committee notes the Government’s indication that meetings of the ERAB were held regularly during the reporting period despite the boycott of the FTUC and its withdrawal from ERAB meetings in June 2018, February 2019 and August 2019. In this respect, referring to its 2019 observation on Convention No. 87, the Committee notes that, according to the FTUC, the Government’s reference to boycott clearly reveals that there remain issues in the appointment process of ERAB members. The Committee notes the information provided by the Government with regard to the tripartite consultations held within the ERAB during the reporting period. The Government reports on the submission to Parliament of the questionnaire on the abrogation and withdrawal of: the Night Work (Women) Convention, 1919 (No. 4); the Minimum Age (Trimmers and Stokers) Convention, 1921 (No. 15); the Protection against Accidents (Dockers) Convention, 1929 (No. 28); the Night Work (Women) Convention (Revised), 1934 (No. 41); the Minimum Age (Non-Industrial Employment) Convention (Revised), 1937 (No. 60); and the Hours of Work and Rest Periods (Road Transport) Convention, 1939 (No. 67). The Government indicates that the Conventions concerned were abrogated or withdrawn. In addition, tripartite consultations were held with regard to the ILO Centenary ratification campaign and proposals of newly adopted instruments pending submission to Parliament, including the Violence and Harassment Convention, 2019 (No. 190), were discussed. With respect to the re-examination of unratified Conventions, the Government indicates that it is envisaged to ratify the Protocol of 2002 to the Occupational Safety and Health Convention, 1981; the Labour Statistics Convention, 1985 (No. 160) and its accompanying Labour Statistics Recommendation, 1985 (No. 170). Finally, the Government indicates that it remains committed to holding tripartite consultations with regard to the reports on the application of ratified Conventions (Article 5(1)(d)) and the proposals for denunciation of ratified Conventions (Article 5(1)(e)). The Committee notes the ratification of the Violence and Harassment Convention, 2019 (No. 190) on 25 June 2020. The Government has not, however, provided detailed information as requested on the content and the outcome of the tripartite consultations held under this Article of the Convention. The Committee therefore requests the Government to provide updated and detailed information on the content and outcome of the tripartite consultations held on all matters concerning international labour standards covered by the Convention, particularly relating to the questionnaires on Conference agenda items (Article 5(1)(a)); the submission of instruments adopted by the Conference to Parliament (Article 5(1)(b)); the re-examination at appropriate intervals of unratified Conventions and Recommendations to which effect has not yet been given (Article 5(1)(c)); reports to be presented on the application of ratified Conventions (Article 5(1)(d)); and the proposal for the denunciation of Conventions (Article 5(1)(e)).

In the context of the global COVID-19 pandemic, the Committee recalls the comprehensive guidance provided by international labour standards. It encourages Member States to engage in tripartite consultation and social dialogue more broadly as a solid foundation for developing and implementing effective responses to the profound socio-economic impacts of the pandemic. The Committee invites the Government to provide updated information in its next report on measures taken in this respect, including with regard to steps taken to build the capacity of the tripartite constituents and strengthen mechanisms and procedures, as well as challenges and good practices identified.

The Committee notes the Government’s second report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). The Committee notes that Fiji has not submitted a declaration of acceptance of the amendments to the Code of the Convention approved in 2014 by the International Labour Conference and is therefore not bound by these amendments. The Committee further notes that the 2016 amendments to the Code entered into force in the country on 8 January 2019. Following a second review of the information and documents available, the Committee draws the Government’s attention to the following issues.

Impact of the COVID-19 pandemic. The Committee takes note of the observations of the International Transport Workers' Federation (ITF) and of the International Chamber of Shipping (ICS), received by the Office on 1 October 2020 and 26 October 2020, respectively, alleging that ratifying states have failed to comply with certain provisions of the Convention during the COVID-19 pandemic. Noting with deep concern the impact of the COVID pandemic on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 on this issue.

Article I of the Convention. General questions on application. Implementing measures. In its previous comment, noting that the draft Maritime (Labour Convention) Regulations, 2017 (hereinafter the draft MLC Regulations) aimed at implementing the requirements of the Convention, had yet to be adopted by the Parliament, the Committee requested the Government to provide information on any progress made to give effect to the Convention. The Committee notes the Government’s information that the Ministry of Employment and the Maritime Safety Authority of Fiji (MSAF) agreed to include parts of the draft MLC Regulations under the respective legislations administered by them. As a result, the Ministry of Employment prepared two draft regulations, i.e. the Draft Employment Relations (Maritime) Regulations (hereinafter, draft Maritime Employment Regulations) and the Draft Health and Safety (Maritime) Regulations (hereinafter, draft MOSH Regulations). The Government indicates that the MSAF is still in the process of completing the draft regulations on the technical aspect of the MLC, 2006. While taking note of this information, the Committee observes that six years after the ratification of the Convention, the Government has not adopted the required laws and regulations to implement its provisions. The Committee requests the Government to adopt without delay the necessary measures to implement the Convention, taking into account the points raised below. The Committee also requests the Government to provide copy of the relevant texts once adopted.

Article II, paragraph 6. Scope of application. Ships under 200 gross tonnage. The Committee previously noted that Regulation 4(1) of the draft MLC Regulations provided for the possibility to exempt any Fiji-owned ship of less than 200 gross tonnage and not engaged in international voyages, from any the provisions of the Regulations. Recalling that the flexibility provided for in Article II, paragraph 6, only concerns “certain details of the Code”, i.e. Standards and Guidelines, and that it only applies “to the extent that the subject matter is dealt with differently by national laws or regulations or collective bargaining agreements or other measures”, the Committee requested the Government to indicate the measures taken to revise Regulation 4 of the draft MLC Regulations to ensure full conformity with the provisions of Article II, paragraph 6. The Committee notes that Regulation 4 of the draft MLC Regulations has not been reproduced into the draft Maritime Employment Regulations nor into the draft MOSH Regulations. Considering that the MSAF is still in the process of finalizing the draft regulations on the technical aspects of the MLC, 2006, the Committee requests the Government to take the necessary measures to ensure that any provision thereof exempting ships of less than 200 gross tonnage is in conformity with Article II, paragraph 6. It also requests the Government to ensure that any determination under Article II, paragraph 6, may only be made in consultation with shipowners’ and seafarers’ organizations and will be communicated to the Director-General of the International Labour Office, as provided for in Article II, paragraph 7.

Article VI, paragraphs 3 and 4. Substantial equivalence. The Committee previously noted that according to Regulation 64(3) of the draft MLC Regulations, the shipowner and the master may, instead of complying with the requirement to have a qualified ship’s cook on board, comply with such other requirement as the Chief Executive Officer may approve in respect of a particular ship, or ships of a particular description, being requirements that the Chief Executive Officer considers “substantially equivalent” to the requirement contained in the Regulations when considered together with the conditions and limitations to which the approval may be subject. The Committee requested the Government to provide detailed information with respect to the substantial equivalence included in the draft Regulations regarding Standard A3.2, paragraph 3. The Committee notes the Government’s information that, since the MSAF is still in the process of finalizing the draft Regulations on the technical aspects of the MLC, “Article VI, paragraphs 3 and 4 are yet to be included as implementing provisions in its laws and regulations or other measures which are substantially equivalent to the provisions of Part A of the MLC”. The Committee recalls that a Member availing itself of substantial equivalence shall provide information on the reason why it was not in a position to implement the requirement in Part A of the Code, as well as (unless obvious) on the reason why the Member was satisfied that the substantial equivalence met the criteria set out in Article VI, paragraph 4. The Committee requests the Government to provide information on any provision of the new draft of the MSAF providing for substantial equivalence in light of Article VI, paragraph 4 of the Convention.

Article VII. Consultation with shipowners’ and seafarers’ organizations. The Committee notes that the consultation of shipowners’ and seafarers’ organizations is not provided for in the draft Maritime Employment Regulations and the draft MOSH Regulations, whereas the Convention requires such consultations in several of its provisions (for example in Standard A1.1, paragraph 3 (exception to strict compliance with the night work restriction for young seafarers), Standard A1.2, paragraph 2 (nature of the medical examination and certificate), Standard A2.8, paragraph 3 (establishing objectives for the vocational guidance, education and training of seafarers whose duties on board ship primarily relate to the safe operation and navigation of the ship), Standard A3.1, paragraph 19 (the need to take into account the interests of seafarers having differing and distinctive religious and social practices regarding accommodation and recreational activities)). The Committee requests the Government to adopt the necessary measures to give effect to the Convention’s requirements regarding consultations.

Regulation 1.1 and Standard A1.1. Minimum age. In its previous comments, the Committee noted that, notwithstanding the draft MLC Regulations establish that minimum age for employment on board ships is 16 years, legislation currently in force (i.e. section 92 of the Employment Relations Promulgation 2007) fixes at 15 years the minimum age for employment of children, which does not comply with Standard A1.1, paragraph 1 of the Convention. The Committee requested the Government to take the necessary measure to give full effect to this provision. The Committee notes the Government’s information that, with its tripartite partners, it is currently reviewing the Employment Relations Act 2007 (ERA) and they agreed to amend section 92 of the Employment Relations Promulgation 2007 to increase the employable age to 16 years. The Committee further notes that Regulation 5 of the draft Maritime Employment Regulations, reproducing the draft MLC Regulations, fixes at 16 years the age for employment on board ships. The Committee requests the Government to indicate the measures taken to ensure full conformity with Standard A1.1, paragraph 1.

Standard A1.2, paragraph 4. Independence of the medical practitioners. In its previous comments, the Committee requested the Government to indicate how it gives effect to Standard A1.2, paragraph 4 in relation to professional independence of medical practitioners. The Committee notes that, with regard to the definition of “approved medical practitioner”, the draft Employment Regulations refer to the Maritime (STCW Convention) Regulations 2014. It notes that the latter provide that the Chief Executive Officer may approve a registered medical practitioner as a recognised medical practitioner, if he/she is satisfied that the practitioner is professionally independent from employers, seafarers, and employer and seafarer representatives (Regulation 57(1)(b)). The Committee takes note of this information, which addresses its previous request.

Standard A1.2, paragraph 5. Review of decisions related to seafarers’ medical certificate. In its previous comments, the Committee noted that, according to Regulation 15(2) of the draft MLC Regulations, the competent authority may accept or refuse a seafarer’s application for review of decisions related to the seafarer’s medical fitness. The Committee requested the Government to amend the draft Regulations in order to comply with the provisions of Standard A1.2, paragraph 5. The Committee notes that Regulation 63 of the draft Maritime Employment Regulations stipulates that a seafarer may apply to the Chief Executive Officer for a review by a reviewing medical practitioner of a Certificate of Medical Fitness, indicating that the seafarer is unfit for service at sea or fit for service at sea with limitations. The reviewing medical practitioner shall be a medical practitioner recognised by the Chief Executive Officer. After reviewing a Certificate of Medical Fitness and the state of health of the seafarer to whom it was issued, the reviewing medical practitioner may direct that a further medical examination be carried out and may stipulate the examination and the medical practitioner or organisation to carry it out. Regulation 64 provides for the possibility for the seafarer to appeal a reviewed Certificate of Medical Fitness by a committee consisting of representatives of the Chief Executive Officer, the shipowner and the seafarer, assisted by a recognised medical practitioner. The Committee observes that Regulation 63 does not allow the seafarer to have a further examination, as long as such decision depends on the discretion of the reviewing medical practitioner. In this regard, it recalls that Standard A1.2, paragraph 5 provides that seafarers who have been refused a certificate or have had a limitation imposed on their ability to work, shall be given the opportunity to have a further examination by another independent medical practitioner or by an independent medical referee. In the context of the finalization of legislation implementing the MLC, 2006, the Committee requests the Government to take the necessary measures to ensure full conformity with Standard A1.2, paragraph 5.

Standard A2.1, paragraph 6. Notice for the termination of seafarers’ employment agreements. In its previous comments, the Committee noted that Regulation 25(11) of the draft MLC Regulations provides that the Chief Executive Officer may permit the length of notice for the termination of seafarers’ employment agreement to be less than seven days where such shorter notice is necessary for compassionate or other urgent reasons and agreed to by both the seafarer and shipowner. Noting that Standard A2.1, paragraph 6 does not provide for authorization by the competent authority, the Committee requested the Government to review Regulation 25(11) in order to ensure conformity with such Standard. The Committee notes the Government’s information that the notice period for termination of employment, including with regard to seafarers, is stipulated in section 27 of the ERA. The Government indicates that Regulation 25(11) of the draft MLC Regulations will be repealed as the issue of the notice period is already covered by the ERA. The Committee notes that Regulation 15(11) of the draft Maritime Employment Regulations provides the same as Regulation 25(11) of the draft MLC Regulations. It also notes that: a) section 27 of the ERA deals with presumption as to period of contract and termination of contract and not with termination at a shorter notice; and b) the ERA does not appear to provide for termination at a shorter notice for compassionate or other urgent reasons. The Committee requests again the Government to take the necessary measures to ensure full conformity with Standard A2.1, paragraph 6 of the Convention.

Regulation 2.2 and Standard A2.2, paragraphs 3, 4 and 5. Wages. Allotments. The Committee notes that Regulation 37 of the draft MLC Regulations giving effect to Standard A2.2, paragraphs 3 and 4 of the Convention has not been reproduced into the draft Maritime Employment Regulations. The Committee requests the Government to take the necessary measures to ensure that legislation implementing the MLC, 2006 gives full effect to Standard A2.2, paragraphs 3 and 4 of the Convention.

Regulation 2.3 and Standard A2.3, paragraph 13. Hours of work and hours of rest. Exceptions. In its previous comments, the Committee noted that Regulation 30(9)(a) of the draft MLC Regulations provides that the Chief Executive Officer may permit certain exceptions to the hours of rest set out in the Regulations when such exceptions are provided for in a collective agreement or “any other agreement between a seafarer and a shipowner”. Recalling that Standard A2.3, paragraph 13, only allows exceptions where permitted in a collective agreement, the Committee requested the Government to review Regulation 30(9) to ensure conformity with Standard A2.3, paragraph 13. The Committee notes the Government’s information that it will ensure that Regulation 30(9) is redrafted to provide only for one exception where permitted in a collective agreement. The Committee also notes that Regulations 19(9) and 20 of the draft Maritime Employment Regulations reproduce the provisions of Regulation 30(9) (a) mentioned above. In the process of the finalization of legislation implementing the MLC, 2006, the Committee again requests the Government to take the necessary measures to ensure full conformity with Standard A2.3, paragraph 13 of the Convention.

Regulation 2.4 and the Code. Entitlement to leave. Termination of the entitlement. In its previous comments, the Committee noted that according to Regulation 38(9) of the draft MLC Regulations, the shipowner shall grant and the seafarer shall take annual leave not later than 12 months after the end of every 12 months of continuous service and any seafarer who fails to take that leave by the end of such period shall thereupon cease to be entitled thereto. The Committee observed that this provision is not in conformity with Standard A2.4, paragraph 3 and Standard A2.5, paragraph 2(b), from the combined reading of which the maximum continuous period of service without leave is in principle 11 months. It further noted that Regulation 38(9) providing that a seafarer who fails to take leave by the end of the indicated period ceases to be entitled to it, is clearly not in conformity with the Convention. The Committee requested the Government to review Regulation 38(9) to ensure conformity with the Convention. The Committee notes that Regulation 38(9) of the draft MLC Regulations has been reproduced into Regulation 23(9) of the draft Maritime Employment Regulations. Recalling the fundamental importance of paid annual leave to protect the health and well-being of seafarers and to prevent fatigue, the Committee again requests the Government to take the necessary measures to ensure conformity with Regulation 2.4.

The Committee previously noted that Regulation 38(3) provides for the possibility to lose the entitlement to leave in the event of termination of employment for misconduct, which is not in conformity with the Convention. The Committee accordingly requested the Government to review Regulation 38(3). Noting that Regulation 38(3) of the draft MLC Regulations has been reproduced into Regulation 23(3) of the draft Maritime Employment Regulations, the Committee again requests the Government to take the necessary measures to ensure conformity with the Convention.

Regulation 2.4 and Standard A2.4, paragraph 3. Entitlement to leave. Prohibition to forgo annual leave. In its previous comments, the Committee requested the Government to provide information on how it gives effect to Standard A2.4, paragraph 3. The Committee notes that, under Regulation 15(8) of the draft Maritime Employment Regulations “any term in the contract providing for the seafarer to forego any part of the minimum annual leave shall be unenforceable in so far as it purports to deprive the seafarer of that right or to remove or reduce the liability of the shipowner to grant the minimum annual leave prescribed under this Part except under such circumstances as may be prescribed by the Authority”. The Committee recalls that it considers that the possibility to authorize exceptions to the prohibition of agreements to forgo minimum annual leave needs to be understood in a restrictive manner. In contrast, to read in this Standard a broad authorization to forgo annual leave for cash compensation or otherwise, would defeat the purpose of Regulation 2.4, which is to ensure that seafarers have adequate leave. The Committee requests the Government to provide detailed information on the authorized exceptions which could be “prescribed by the Authority” pursuant to Regulation 15(8) of the draft Maritime Employment Regulations.

Regulation 2.4, paragraph 2. Entitlement to leave. Shore leave. In its previous comments, the Committee requested the Government to indicate how it ensures compliance with Regulation 2.4, paragraph 2. The Committee notes the Government’s information that it will ensure to draft a provision in conformity with Regulation 2.4, paragraph 2. In the context of the process of finalization of legislation implementing the MLC, 2006, the Committee requests the Government to adopt the necessary measures to ensure compliance with this requirement of the Convention and to provide information on any developments in this regard.

Regulation 2.5 and Standard A2.5.1, paragraphs 1 and 2(a). Repatriation. Circumstances. The Committee previously noted that Regulation 45 of the draft MLC Regulations provides for a number of cases in which the duty of a shipowner to repatriate a seafarer ends, including where the shipowner has made reasonable arrangements for repatriation, which are unsuccessful because of the seafarer’s unreasonable conduct. It requested the Government to provide information on the implementation of Regulation 45 of the draft MLC Regulations. The Committee notes that Regulation 45 of the draft MLC Regulations has been reproduced into Regulation 32 of the draft Maritime Employment Regulations. The Committee requests the Government to explain the procedure and processes which would be used to determine whether the seafarer’s conduct was reasonable or not pursuant to Regulation 32(b) of the draft Maritime Employment Regulations.

The Committee further notes that Regulation 32(d) of the draft Maritime Employment Regulations provide that the duty of the shipowner to repatriate the seafarer ends when the seafarer confirms in writing to the shipowner that repatriation is not required. The Committee recalls that the Convention does not provide that the right to repatriation ends when the circumstances provided under Standard A2.5.1, paragraph 1, are met. The only case in which this right may lapse in conformity with the Convention is contemplated under Guideline B2.5.1, paragraph 8, in the case in which the seafarers concerned do not claim that right within a reasonable period of time to be defined by national laws or regulations or collective agreements. The Committee requests the Government to ensure that any provision of national legislation which deprives seafarers of their right to repatriation is limited to the circumstances allowed by the Convention. In this regard, it requests the Government to bring its legislation into conformity with the Convention.

Regulation 2.5, paragraph 2. Financial security. In relation to the 2014 amendments to the Code of the Convention, the Committee recalls that, pursuant to Standard A2.5.2, the Government shall ensure the provision of an expeditious and effective financial security system to assist seafarers in case of their abandonment. While recalling that Fiji is not bound by the 2014 amendments, the Committee takes note of Regulation 25 of the draft Maritime Employment Regulations, which gives effect to Standard A2.5.2. It requests the Government to provide up-to-date statistical information on the number of ships flying the Fijian flag in respect of which financial insurance certificates have been issued in accordance with the Convention.

Regulation 3.1 and Standard A3.1, paragraph 3. Accommodation and recreational facilities. Flag State inspections. In its previous comments, the Committee requested the Government to indicate which provisions of the Maritime (Fiji Maritime Code) Regulations 2014 ensure conformity with Standard A3.1, paragraph 3. The Committee notes the Government’s indication that Government it will ensure to draft a provision to be in conformity with Standard A3.1 as this has yet to be included in the draft Regulations. The Committee requests the Government to adopt the necessary measures to give effect to Standard A3.1 and to provide information on any development in this regard.

Regulation 4.1 and Standard A4.1, paragraph 4(b). Medical care on board and ashore. Minimum requirements. Medical doctor on board. The Committee previously requested the Government to indicate how it ensures that ships carrying 100 or more persons and are ordinarily engaged on international voyages of more than three days’ duration carry a qualified medical doctor, in conformity with Standard A4.1, paragraph 4(b). The Committee notes the Government’s information that it will ensure to draft a provision in conformity with Standard A4.1, paragraph 4(b). The Committee requests the Government to adopt the necessary measures to comply with this requirement of the Convention and to provide information on any development in this regard.

Regulation 4.1 and Standard A4.1, paragraph 1(d). Medical care on board and ashore. Services provided free of charge. Essential dental care. The Committee previously noted that while Regulation 76(c) of the draft MLC Regulations guarantees that medical care on board is provided to seafarers free of charge, there is no reference to dental treatment, as required under Standard A4.1, paragraph 1(d). It requested the Government to provide clarifications on how it gives effect to this provision of the Convention. The Committee notes the Government’s information that it will ensure to draft a provision in conformity with Regulation 4.1 that provides also for dental treatment. In the framework of the finalization of legislation implementing the MLC, 2006, the Committee requests the Government to provide information on any measures taken to ensure conformity with Standard A4.1, paragraph 1(d) in relation to essential dental care.

Regulation 4.1 and Standard A4.1, paragraph 1(e). Medical care on board and ashore. Preventive measures. The Committee previously requested the Government to indicate how it gives effect to Regulation 4.1, paragraph 1(e). The Committee notes the Government’s information that it will ensure to draft a provision in conformity with Standard A4.1 paragraph 1(e). In the framework of the finalization of legislation implementing the MLC, 2006, the Committee requests the Government to provide information on the measures taken to ensure conformity with Standard A4.1, paragraph 1(e).

Regulation 4.1 and Standard A4.1, paragraph 4(d). Medical care on board and ashore. Minimum requirements. Medical advice by radio or satellite. The Committee previously requested the Government to indicate on how it gives effect to Standard A4.1, paragraph 4(d). The Committee notes the Government’s information that it will draft a provision in conformity with this provision to ensure that medical advice through radio or satellite communication should be available 24 hours a day. In the framework of the finalization of legislation implementing the MLC, 2006, the Committee requests the Government to provide information on any measures taken to ensure conformity with Standard A4.1, paragraph 4(d).

Regulation 4.3 and Standard A4.3, paragraph 2(d). Health and safety protection and accident prevention. Ship’s safety committee. The Committee notes that Regulation 7(1) of the draft MOSH Regulations provides that “Every ship which operates with six or more seafarers on board shall have a health and safety committee for that ship”. The Committee recalls that under Standard A4.3, paragraph 2(d), a ship’s safety committee shall be established on board a ship on which there are five or more seafarers. The Committee requests the Government to take the necessary measures to ensure full conformity with Standard A4.3. paragraph 2(d).

Regulation 4.4 and the Code. Access to shore-based facilities. The Committee previously requested the Government to provide information on any developments in establishing seafarer welfare facilities. The Committee notes the Government’s information that it will provide more information on the establishment of shore-based welfare facilities on a later date. The Committee requests the Government to provide information on any developments in this regard.

Regulation 4.5, paragraphs 1 and 3. Social security. Coverage of dependants. In its previous comments, the Committee noted that dependants of seafarers ordinarily resident in Fiji are not provided with social security protection. It recalled that if national provisions extend social security benefits to dependants of workers, then these national provisions should also be provided to seafarers ordinarily resident in Fiji, as provided for in Regulation 4.5, paragraph 1. Noting the absence of reply on this point in the Government’s report, once again the Committee requests the Government to indicate whether dependants of shoreworkers are provided with social security protection.

Regulation 4.5 and Standard A4.5, paragraphs 1 and 2. Social security. Branches. The Committee notes that in accordance with Standard A4.5 (2) and (10), the Government has specified the following branches of social security: sickness benefit; unemployment benefit; old-age benefit; employment injury benefit; maternity benefit and survivors’ benefit. The Committee recalls that under Guideline B4.5, paragraph 1, the protection to be provided at the time of ratification in accordance with Standard A4.5, paragraph 2, should at least include the branches of medical care, sickness benefit and employment injury benefit. Noting that medical care is not among the social security branches specified, the Committee requests the Government to indicate how it has given due consideration to Guideline B4.5, paragraph 1 and whether it intends to extend the protection to the branch of medical care.

Regulation 4.5 and Standard A4.5, paragraph 3. Social security. Protection for seafarers ordinarily resident in its territory. Unemployment benefits. The Committee previously requested the Government to provide information on the measures taken to ensure that all resident seafarers are entitled to unemployment benefits. It notes the Government’s information that it will discuss this issue with its tripartite partners and relevant stakeholders and provide information at a later date. The Committee requests the Government to provide information on any developments in ensuring that all seafarers resident in its territory are entitled to unemployment benefits.

Regulation 4.5 and Standard A4.5, paragraph 6. Social security. Comparable benefits for seafarers in absence of adequate coverage. In its previous comments, the Committee requested the Government to provide information on any measures adopted or envisaged to give consideration to the various ways in which comparable benefits be provided to non-resident seafarers working on ships flying its flag in the absence of adequate coverage (Standard A4.5, paragraph 6). It notes the Government’s information that it intends to discuss this issue with its tripartite partners and relevant stakeholders and will provide information at a later date. The Committee requests the Government to provide information on the outcome of the consultations and on any measures taken to giving effect to Standard A4.5, paragraph 6.

Standard A5.1.4, paragraphs 3, 6, 11(a) and 17. Flag State responsibilities. Inspection and enforcement. Qualification, status and conditions of service of inspectors. In its previous comments, the Committee requested the Government to indicate how it gives effect to Standard A5.1.4, paragraphs 3, 6, 11(a) and 17. The Committee notes the Government’s information that the MSAF is still in the process of completing the draft MLC Regulation on the technical aspects of the MLC, 2006, which would implement those provisions. In the framework of the finalization of legislation implementing the MLC, 2006, the Committee requests the Government to adopt the necessary measures to implement Standard A5.1.4, paragraphs 3, 6, 11(a) and 17 and to provide information on any developments in this regard.

Standard A5.1.4, paragraphs 5, 10 and 11(b). Flag State responsibilities. Inspection and enforcement. Procedures for receiving and investigating complaints. The Committee requested the Government to provide information on the implementation of Standard A5.1.4, paragraphs 5, 10 and 11(b) of the Convention. It notes the Government’s information that the Labour Standard Service under the Ministry of Employment is responsible for the resolution of labour complaints and the Mediation Service is responsible for the resolution of employment grievances. These services handle complaints that are lodged by all workers that fall within the ambit of the ERA, including seafarers. The Government also indicates that in relation to Standard A5.1.4 paragraphs 5, 10 and 11(b), it will have to ensure that provisions are drafted in conformity with the Standard. The Committee requests the Government to adopt the necessary measures to give effect to Standard A5.1.4 paragraphs 5, 10 and 11(b).

Regulation 5.2.1 and Standard A5.2.1, paragraph 4. Port State responsibilities. Inspections in port. Detailed inspection. In its previous comments, the Committee requested the Government to explain how it gives effect to Standard A5.2.1, paragraph 4. Noting that the checklist for Port State procedure does not include inspection of working and living conditions on board except for accommodation, the Committee also requested the Government to ensure the revision of the Port State procedure in order to be in conformity with the Convention. The Committee notes the Government’s information that the MSAF is still in the process of completing the Draft MLC Regulation on the technical aspects of the MLC, 2006. In this framework it will be ensured that the Port State procedures are revised in order to be in conformity with the Convention. In the framework of the adoption of legislation implementing the MLC, 2006, the Committee requests the Government to provide information on the provisions implementing the requirement of Standard A5.2.1, paragraph 4 to bring the deficiencies regarding the working and living conditions on a ship to the attention of the appropriate seafarers’ and shipowners’ organizations in case of a complaint or if such deficiencies are considered to be significant. The Committee also requests the Government to provide information on the revision of the checklist for Port State inspections in line with the Convention.

Additional documentation requested. The Committee notes that the Government has not supplied the documents requested in its previous comments. The Committee requests again the Government to provide the following documents and information : an example of the standard wording in medical certificates once adopted (Standard A1.2, paragraph 10); an example of a document (e.g. Part II of the DMLC) outlining a shipowner’s practices or on-board programmes (including risk evaluation) for preventing occupational accidents, injuries and diseases (Standard A4.3, paragraphs 1(c), 2(b) and 8); a copy of the relevant national guidelines (Regulation 4.3, paragraph 2); a copy of the document(s) used for reporting unsafe conditions or occupational accidents on board ship (Standard A4.3, paragraph 1(d)); a copy of the annual reports on inspection activities that have been issued in accordance with Standard A5.1.4, paragraph 13, during the period covered by this report; a standard document issued to or signed by inspectors setting out their functions and powers (Standard A5.1.4, paragraph 7; see guidance in Guideline B5.1.4, paragraphs 7 and 8); a copy of any national guidelines issued to inspectors in implementation of Standard A5.1.4, paragraph 7; a copy of the form used for an inspector’s report (Standard A5.1.4, paragraph 12); a copy of any documentation that is available informing seafarers and interested others about the procedures for making a complaint (in confidence) regarding a breach of the requirements of the Convention (including seafarers’ rights) (Standard A5.1.4, paragraph 5); a copy of your country’s model for on-board complaint procedures, if developed, or of typical procedures that are followed on ships that fly its flag (Standard A5.1.5); a copy of any national guidelines issued to inspectors in implementation of Standard A5.2.1, paragraph 7; the following statistical information for the period covered by this report: the number of foreign ships inspected in port; the number of more detailed inspections; the number of cases where significant deficiencies were detected; the number of detentions of foreign ships due, wholly or partly, to conditions on board ship that are clearly hazardous to the safety, health or security of seafarers, or constitute a serious or repeated breach of the requirements of the MLC, 2006 (including seafarers’ rights) (Standard A5.2.1); a document describing onshore complaint-handling procedures (Standard A5.2.2).

Comments adopted by the CEACR: Fiji

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Comments adopted by the CEACR: Fiji

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ADOPTED_BY_THE_CEACR_IN 2021

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