Employment & Labour

General Principles

Employment and labour laws in Fiji are designed to protect the rights of employees and promote fair and equitable employment practices. These laws cover various aspects of the employment relationship, including hiring, working conditions, wages, termination, and dispute resolution.

General Overview and Trends

Fiji’s labour market has undergone changes in recent years, with a focus on improving labour standards, promoting employment opportunities, and addressing workplace issues. There is a growing emphasis on ensuring decent work conditions, non-discrimination, and fair treatment of employees.

Legal Framework

The primary legislation governing employment and labour in Fiji includes the Employment Relations Act 2007. These laws set out the rights and obligations of employers and employees, establish minimum employment standards, and provide mechanisms for resolving workplace disputes.

Trends and Practice

Recent trends in Fiji’s employment landscape include a greater emphasis on occupational health and safety, gender equality, and work-life balance. There is an increasing recognition of the importance of promoting inclusive and diverse workplaces and addressing issues such as workplace harassment and discrimination.

Scope

Fiji’s employment laws cover a wide range of employment relationships, including full-time, part-time, casual, and temporary work. These laws apply to both local and foreign employees, with certain provisions specific to each category.

Enforcement

The enforcement of employment laws in Fiji is overseen by the Ministry of Employment, Productivity, and Industrial Relations. The Ministry has the authority to investigate complaints, mediate disputes, and take legal action against employers who violate employment regulations.

Pre-Hire Considerations

Employers in Fiji must consider several factors before hiring employees, including compliance with employment laws, establishing fair and competitive remuneration packages, and ensuring workplace safety. Employers should also be aware of any specific industry requirements and labour market conditions.

Establishment as an Employer

To establish as an employer in Fiji, businesses must register with the Fiji Revenue and Customs Service (FRCS) and obtain a Tax Identification Number (TIN). Employers must also comply with relevant licensing and registration requirements specific to their industry.

Registration

Every employer in Fiji is subject to various payroll tax & social security obligations, including PAYE (pay as you earn), Statutory Training Tax, Contractors Provisional Tax, Annual Prescribed Registration Fees, and Annual returns filing and corporate tax returns.

All employers must electronically engage with Fiji Revenue and Customs Service (FRCS) for reporting payday or salary processing day.

Employers are also required to pay social security premiums monthly to Fiji National Provident Fund (FNPF) at the applicable rate of 18% of the employee’s salary. Employers contribute up to 10%, and employees contribute 8% towards social security premiums. The operations of the FNPF is guided by the Fiji National Provident Fund Act 2011.

Grants and Incentives

Fiji offers various grants and incentives to employers to promote employment generation and economic development. These incentives may include tax incentives, training grants, and assistance programs aimed at supporting specific industries or promoting employment for specific groups.

Pre-Hire Requirements

There is no specific pre-hire requirements for local employees in Fiji. However, where employers are hiring foreign employees, respective work permits are required in compliance with immigration regulations. Employers must verify the eligibility of foreign employees to work in Fiji and ensure compliance with visa requirements.

Checks and Tests

Employers may conduct pre-employment checks and tests as part of the hiring process. These may include background checks, reference checks, and pre-employment medical examinations. However, any checks or tests must be conducted in compliance with privacy and anti-discrimination laws. The Fijian Constitution and the Employment Relations Act 2007 specifically prohibits direct and indirect discrimination on the grounds of actual or supposed personal characteristics or circumstances, including race, culture, ethnic or social origin, colour, place of origin, sex, gender, sexual orientation, gender identity and expression, birth, primary language, economic or social or health status, HIV/AIDS status, disability, age, religion, conscience, marital status or pregnancy.

Foreign Employees

Employers hiring foreign employees must comply with immigration laws and obtain work permits or visas on behalf of their foreign employees. Work permits are typically issued for a specified period and are subject to renewal. Employers must ensure that foreign employees have the necessary legal authorisation to work in Fiji.

The Employment Relations Act 2007 also require employers to have all foreign employment contracts attested by the Permanent Secretary for Employment.

Need more information on foreign employees? Contact Lex Connect Legal at https://www.lexconnectfiji.com/lexconnect-legal/

Employment Contracts

Contract Formation

Employment contracts in Fiji are formed through mutual agreement between the employer and the employee. The Employment Relations Act 2007 recognise both oral and written contracts and the provisions of the Act apply to both oral and written contracts. Although it is highly recommended to have written contracts to avoid misunderstandings and disputes.

Employers are at liberty to draw its own terms and conditions of employment for its employees, however, such terms and conditions must not be less favourable than those outlined under the Employment Relations Act 2007.

All employment contracts are presumed to be effective for an indefinite period except:

A contract for one fixed period which is expressed to be not renewable;
A contract for a fixed task; or
A daily contract where the wages are paid daily.

Types of Employment Contracts

There are several types of employment contracts in Fiji, including:

Written Contracts

The Employment Relations Act 2007 requires certain employment contracts to be in writing. These include:

Employment contract that exceeds duration of one (1) month;
Collective agreements; and
Foreign contract of service, or those that involve a contract between a local employer and a foreign worker within Fiji.

Foreign Contracts

Employers must submit foreign contracts of service to the Permanent Secretary for Employment for attestation before the worker signs it.

Failure to do so is an offense, and the employer can face a fine of up to $20,000, imprisonment for a term not exceeding four (4) years, or both.
No person is allowed to enlist or recruit anyone under a foreign contract of service without written authorisation from the Permanent Secretary for Employment. Violation of this provision can lead to a fine of up to $20,000, imprisonment for a term not exceeding four years, or both.

Oral Contracts

The Employment Relations Act 2007 in Fiji deals with the presumption as to oral contracts. If there is no evidence to the contrary, and subject to subsection section 35(4), an oral contract is considered to be a contract for the period based on which wages are payable, but it cannot extend for longer than one month from the time it was made.

If wages are paid at intervals of less than a day, the oral contract is deemed to be a daily contract, unless proven otherwise.

The oral contract terminates on the last day of the contract period, or for daily contracts, at the end of the day, unless evidence suggests otherwise. However, if an oral contract is presumed to be a monthly contract and is made after the first day of any calendar month, certain provisions come into effect. Until the end of the calendar month during which it was entered into, the contract is considered to be for the period starting on the day of its creation and ending on the last day of that month. If a new contract is deemed to be entered into after the termination of the initial contract, the new contract is presumed to be for the full calendar month following the termination.

Permanent Employment Contracts

These contracts establish an ongoing employment relationship with no fixed end date. They provide stability and security for both the employer and the employee. Normally, termination of such contracts are allowed under the Employment Relations Act 2007 upon notice for the same period as to which wages are paid.

Fixed-Term Employment Contracts

These contracts have a specified duration or end date. They are commonly used for temporary or project-based work where the employment relationship is expected to end upon completion of the term. Under the Employment Relations Act 2007, employers are at liberty to determine the period or term of its written contracts.

Casual Employment Contracts

Casual contracts are used for irregular or intermittent work arrangements where the employee is engaged on an as-needed basis without a guaranteed number of hours or regular pattern of work.

Under the Employment Relations Act 2007, casual workers are those who are paid at the end of the day and not re-engaged within the 24 hour period immediately following the payment.

Statutory Requirements

The Employment Relations Act 2007 require all written employment contracts to include the following standard terms:

Place and type of work
Days/hours of work and salary/wages
Holidays and leave
Entitlements
Disciplinary and grievance procedure
Duration of contract
Identity, address and signatures of the contracting parties

All employers may use the same template for all types of workers. We also recommend the following clauses to be included:

Definition of work to be performed
Performance assessment
Confidentiality terms
Termination procedure and notice requirements

Prohibited Terms

Employment contracts in Fiji must not contain terms that are contrary to the Employment Relations Act 2007 or any other applicable laws. The Employment Relations Act 2007 prohibit employers from including the following terms in any employment contracts:

Forced labour
Discrimination
Obligation to join a trade union
Condition that a worker must not join a trade union

Restrictions

Employment contracts can impose certain restrictions on employees, such as non-disclosure obligations, confidentiality requirements, or restrictions on the use or disclosure of confidential information. However, these restrictions must be reasonable and necessary to protect legitimate business interests.

Probation Periods

Employers in Fiji may include a probation period in employment contracts to assess the employee’s suitability for the job. The duration of the probation period should be reasonable and agreed upon by both parties. During this period, termination of employment may be easier and subject to less stringent requirements.

Unilateral Amendment

Employers generally cannot unilaterally amend employment contracts without the consent of the employee. Any proposed changes to the terms and conditions of employment should be mutually agreed upon between the employer and the employee.

Restraint of Trade/Non-Compete Clauses

Restraint of trade clauses, also known as non-compete clauses, may be included in employment contracts to restrict employees from working for competitors or engaging in certain activities after termination of employment. These clauses must be reasonable in scope, duration, and geographical area to be enforceable.

Non-Solicitation Clauses

Non-solicitation clauses may be included in employment contracts to prevent employees from soliciting clients, customers, or other employees of the company for a specified period after the termination of employment. Like restraint of trade clauses, non-solicitation clauses must be reasonable to be enforceable.

Governing Law and Jurisdiction

Employment contracts in Fiji are generally governed by Fijian law. The Employment Relations Act 2007 is the principal governing labor legislation in Fiji together with the principles embedded in the Fijian Constitution 2013 and the Conventions of the International Labour Organisation.

Employee Rights and Conditions

Part-time and Temporary Workers

Workers under the Employment Relations Act 2007 include apprentice, learner, domestic worker, part-time worker or casual worker. Hence, the protection and rights accorded under the Employment Relations Act 2007 apply equally to all workers.

Employment Policies

The basic conditions of employment in Fiji cover aspects such as minimum wages, working hours, leave entitlements, and termination of employment. These conditions are governed by the Employment Relations Act 2007 and other relevant legislation.

Working hours

Working hours in Fiji are fixed at a maximum of 48 hours a week (exclusive of overtime) or a maximum daily working period of nine (9) hours.

If the employment contract fixes the weekly working hours at 48 hours per week, the daily work hours should be determined in a six-day work week. If the employment contract fixes 45 hours per week, the daily work hours should be determined in a five-day work week. Managers and executives with decision making powers are allowed flexible working hours under the Act.

Further, the Act requires all employers to keep a record of employee’s working hours for at least a period of 6 years.

Remuneration

Overtime Pay

Any number of hours worked in excess of the maximum working hours will attract overtime pay. There is no prescribed capped amount for overtime pay and the rates are decided mutually between employers and their employees. The standard practice is 150% – 200% of the normal wage rate.

Minimum Age

In Fiji, employers can employ children above 15 years of age between 6 a.m. and 6 p.m. The maximum working hours for children are at eight (8) hours per day with at least 30 minutes of paid rest for every continuous four (4) hours worked.

Minimum Wage

The National Minimum Wage rate in Fiji effective from 1 January 2023 is $4 per hour. However, the sectoral industries have specific minimum wage rates specified in its respective subsidiary legislations under the Act.

Pay Slip Obligations

Under the Employment Relations Act 2007, employers are required to disclose all payments and deductions, including employee contributions, in the pay slip to the employee. The pay slip must contain the following details:

Employee identity details such as employment number, Fiji National Provident Fund membership number, tax identification number
Employer details
the rate and number of hours worked at standard rates of pay and overtime (if applicable)
the gross earnings of the employee (without mandatory deductions)
the net earning of the employee (after compulsory deductions)

Leave Entitlements

The Employment Relations Act 2007 outline minimum leave entitlements to all employees. These include:

Public Holidays

The following days are mandated public holidays in Fiji under the Employment Relations Act 2007 and all workplaces are required to keep these holidays:

New Years Day
Good Friday
Easter Saturday
Easter Monday
Prophet Mohammed’s Birthday
National Sports Day
Fiji Day
Diwali
Christmas Day
Boxing Day

Employers must pay all workers for the number of hours that they would have normally worked on such public holiday (exclusive of overtime).

Need more information on how public holidays are observed in Fiji? Contact Lex Connect Legal at https://www.lexconnectfiji.com/lexconnect-legal/

Annual Leave

After each year of employment with an employer, the Act mandates minimum 10 days of paid annual holiday to each worker. This is normally calculated on a pro-rata basis during a work year. An employer is at liberty to provide annual leave in excess of the minimum requirement.

The paid annual holidays may be granted in one unbroken period or two or more periods. The Act allows employers to defer and let employees accumulate paid annual leave over a maximum period of four (4) years. However, employers must grant at least one week’s annual holiday each year. Employers are allowed to refuse to grant annual leave entitlements to employees who remain absent for more than 20 standard working days during that year.

Maternity and Parenting Leave

The Employment Relations Act 2007 mandates full compensation by employers for the first three (3) childbirths and reduce it to 50% of the usual remuneration for subsequent births. Birth and parenting leave in Fiji encompass maternity and paternity leave.

Maternity Leave

Fiji’s paid maternity leave is for 98 consecutive days. Employers may seek a certificate mentioning the possible date of birth from a registered medical practitioner or registered nurse to grant paid maternity leave per Fiji’s law. Employers are liable to pay the remaining paid maternity leave compensation (if any) per Fijian law, even if the employee dies from any cause before or immediately after the expected birth.

Paternity Leave

Under the Employment Relations Act 2007, employees whose spouse has given birth are entitled to at least 5 working days paid leave. During the COVID-19 period, this requirement was removed under the Employment Relations (Revised Budget Amendment) Act 2022.

Family Care Leave

Under the Employment Relations Act 2007, employees are entitled to at least 5 working days paid leave for the care of immediate family. During the COVID-19 period, this requirement was removed under the Employment Relations (Revised Budget Amendment) Act 2022.

Sick Leave

A worker who has completed three (3) months of continuous service with an employer is entitled to a minimum of 10 days paid sick leave in each year of service under the Employment Relations Act 2007. Sick leaves are not accumulated and lapses at the end of each year.

Bereavement Leave

The Employment Relations Act 2007 mandates employers to provide three (3) days of paid leave in the event of the death of the employee’s family members, such as mother, father, spouse, brother, sister, and child.

Employee Representation

Employee Representatives

Employees in Fiji have the right to be represented by employee representatives, including trade unions, in matters relating to their employment. Employee representatives play a vital role in negotiating employment conditions, participating in collective bargaining, and addressing workplace disputes.

Labour Unions

The Employment Relations Act 2007 allows for registration of trade unions in Fiji. The trade unions are body corporates and are immune from all kinds of civil suits for any acts done in furtherance of a dispute on behalf of workers. Employees have the right to join trade unions and participate in collective bargaining activities.

The Fiji Trades Union Congress is the largest federation of trade unions in Fiji, representing around 70 per cent of working men and women and their families. The Union was established in 1951 and aims to keep employers and Government in check of their compliance with the employment laws and International Labour Organsiation Conventions.

Health and Safety

Legal Framework

Health and safety in the workplace are governed by the Health and Safety At Work Act 1996. The Act establishes legal obligations for employers to provide a safe working environment, identify and manage workplace hazards, and ensure employees receive adequate training and information regarding health and safety matters.

General Obligations

Employers in Fiji have a general obligation to provide a safe working environment, including the prevention of hazards, provision of appropriate safety equipment, and training employees on health and safety matters. Employees also have a responsibility to comply with health and safety policies and procedures.

Training and Policies

Employers are encouraged to provide health and safety training to employees, including induction training for new employees and ongoing training for existing employees. Employers should develop and implement health and safety policies that outline procedures, responsibilities, and expectations regarding health and safety in the workplace. All workplaces having more than 20 employees must have a written health and safety SOPs.

Record Keeping and Reporting

Employers are required to maintain records related to health and safety, including incident reports, training records, and risk assessments. They may also be required to report certain workplace incidents or accidents to the relevant authorities.

Sanctions

Failure to comply with health and safety regulations in Fiji can result in penalties and sanctions, including fines and potential legal action. Employers should be aware of their obligations and take proactive measures to ensure compliance with health and safety laws.

Protection against Discrimination including Harassment

Discrimination

Employees in Fiji are protected against discrimination, including harassment, in the workplace. The Fijian Constitution and the Employment Relations Act 2007 specifically prohibits direct and indirect discrimination on the grounds of actual or supposed personal characteristics or circumstances, including race, culture, ethnic or social origin, colour, place of origin, sex, gender, sexual orientation, gender identity and expression, birth, primary language, economic or social or health status, HIV/AIDS status, disability, age, religion, conscience, marital status or pregnancy.

Employers have a duty to prevent and address any form of workplace discrimination or harassment. The Employment Relations Act 2007 requires employers to set up an internal appeal system to mediate employee grievances at the workplace. In the case of sexual harassment complaints, employers must ensure women are represented adequately on the grievance panel.

Whistle-blowers

Whistle-blowers, who report illegal or unethical activities within an organisation, are protected. There are often internal policies that provides safeguards against retaliation or victimisation for individuals who report misconduct in good faith.

Data Privacy

The local employment laws do not specifically mention that employers must ensure employee data protection and privacy at the workplace. However, employers in Fiji are recommended to follow global best practices while processing sensitive personal data.

Employers should have policies and procedures in place to ensure the proper handling and protection of employee data.

Penalty

In addition to the common law liabilities (discussed below), the Employment Relations Act 2007 outlines respective penalties for breach of statutory provisions by employers. These include, but not limited to:

Failure to pay wages per agreed conditions in the contract will invite a penalty of FJ$1,000 for individuals and FJ$5,000 for corporations.
Employers who fail to submit any foreign contract of service for attestation with the Ministry of Employment are liable for a fine not exceeding FJ$20,000 or imprisonment not exceeding four (4) years or both.
A flat penalty of FJ$100 on employers are imposed for the following violations:
Not providing payslips to employees in the recommended format
Not recording employee working time or holiday and leave entitlements
Not maintaining a separate register while employing children in the workplace
Charging interest or making discount payments for advance salary
Not recognising trade unions and violating agreements

Employer Specific Matters

Vicarious Liability

Employers in Fiji can be held vicariously liable for the actions or omissions of their employees that occur within the course of employment. This means that if an employee commits a wrongful act or causes harm to others while performing their job duties, the employer may be held legally responsible for their actions.

Civil Liability

Employers can face civil liability in Fiji for various employment-related matters, such as discrimination, harassment, wrongful termination, breach of contract, or negligence. Employers must take proactive measures to prevent such issues and ensure compliance with employment laws to minimise the risk of civil lawsuits.

Criminal Liability

Employers can be held criminally liable for certain violations of employment laws, such as non-compliance with health and safety regulations, failure to pay minimum wages, or engaging in illegal employment practices. Criminal liability can result in fines, penalties, or other legal consequences.

Confidential Information and Intellectual Property

The employment laws in Fiji do not specifically govern the intellectual property rights of employers. Hence, it is important for employers to have clear intellectual property policies in employment contracts to establish ownership rights and ensure protection of their intellectual property assets.

Disciplinary Measures and Termination

Disciplinary Measures

The Employment Relations Act 2007 require employers to have internal grievance procedures and disciplinary measures in its employments contracts which must be agreed upon by both parties. These procedures must include confidentiality and natural justice.

Counselling and suspension with or without pay are common grounds of disciplinary measures in Fiji. However, the Employment Relations Act 2007 prohibit deduction of wages as a means of disciplinary action.

Types and Procedures

Employers should follow fair and transparent procedures when implementing disciplinary measures. This typically involves providing employees with notice of the alleged misconduct, conducting an investigation, providing the employee with an opportunity to respond, and documenting the disciplinary process.

If an employment grievance is filed within the Fijian jurisdiction by a worker, compliance with procedure becomes of utmost importance.

Termination or Dismissal

The Employment Relations Act 2007 require all employers to provide reasons to the employee for any kind of dismissal.

Grounds

Grounds for termination in Fiji may include poor performance, gross misconduct, breach of employment terms, redundancy due to operational reasons, or expiration of a fixed-term contract. Employers must ensure that any termination is based on valid and justifiable grounds.

Procedure

When terminating an employee, employers should follow fair and lawful procedures. This may include providing written notice of termination or payment in lieu of notice, conducting exit interviews, settling outstanding entitlements, and complying with any legal requirements for termination.

Unfair Dismissal

In Fiji, the Employment Relations Act 2007 provides protection against unfair dismissal. Employees who believe they have been unfairly dismissed can file a complaint with the Employment Relations Tribunal within specified time limits. The Tribunal can order remedies such as reinstatement or compensation if it finds the dismissal unfair.

Mass layoffs/Redundancy

The Employment Relations Act 2007 allows redundancy of employment based on economic, technological, or structural reasons. The Act requires employers to provide for redundancy pay not less than one week’s wages for each year of service.

Need more information on redundancy procedure? Contact Lex Connect Legal at https://www.lexconnectfiji.com/lexconnect-legal/