Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

Follow-up to the conclusions of the Conference Committee on the Application of Standards (International Labour Conference, 100th Session, June 2011). In its previous observation and in the absence of a report, the Committee recalled that a discussion has taken place in the Conference Committee on the Application of Standards in June 2011. In the resulting conclusions, the Conference Committee urged the Government to ensure that the principles contained in the People’s Charter for Change, Peace and Progress adopted in 2008 were translated into concrete action, and called upon the Government: (i) to amend or repeal all racially discriminatory laws and regulations, including the Education (Establishment and Registration of Schools) Regulations, 1966; (ii) to effectively address discriminatory practices; and (iii) to ensure equality in employment, training and education for all persons of all ethnic groups. The Conference Committee also addressed the right of government employees to non-discrimination and equality in employment, as well as the low labour force participation of women, and asked that measures be taken. The Conference Committee also noted concerns regarding the difficulty in exercising the right to freedom of association in the country, and called on the Government to establish the conditions necessary for genuine tripartite dialogue, with a view to addressing the issues related to the implementation of the Convention. The Committee notes that the Government has not replied to the latter point and asks the Government to provide specific and detailed information in this regard.

Article 1(1) of the Convention. Protection against discrimination. Public service. Legislation. The Committee recalls that the Employment Relations Promulgation of 2007 (ERP) explicitly prohibits direct and indirect discrimination in employment and occupation and covers all the prohibited grounds listed in Article 1(1)(a) of the Convention, as well as a number of additional grounds, as envisaged under Article 1(1)(b). It also recalls that further to the adoption of the Employment Relations (Amendment) Decree 2011 (Decree No. 21 of 2011) on 13 May 2011, government employees, including teachers, were excluded from the scope of the ERP and thus from its non-discrimination provisions. As regards employees excluded, and in general persons employed in the public service, the Committee welcomes the adoption of the Public Service (Amendment) Decree 2011 (Decree No. 36 of 2011) on 29 July 2011, which inserts in the Public Service Act 1999 new Parts 2A and 2B respectively on Fundamental Principles and Rights at Work and Equal Employment Opportunities. The Committee notes that section 10B(2) prohibits, in all aspects of employment, discrimination based on ethnicity, colour, gender, religion, national extraction and social origin, omitting however, political opinion which is listed in section 6(2) of the ERP. It also includes the additional grounds of sexual orientation, age, marital status, pregnancy, family responsibilities, state of health including real or perceived HIV status and AIDS, trade union membership and disability. The Committee also notes that section 10C on prohibited grounds of discrimination, whether direct or indirect, refers to “actual or supposed personal characteristics or circumstances, including: ethnic origin, colour, place of origin, gender, sexual orientation, birth, primary language, economic status, age, disability, HIV/AIDS status, social class, marital status (including living in a relationship in the nature of a marriage), employment status, family status, religion or belief”, omitting “opinion” which is listed in section 75 of the ERP. While welcoming the recent legislative measures, particularly with respect to the additional grounds of discrimination, the Committee recalls 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 requests the Government to take the necessary measures to include political opinion among the prohibited grounds of discrimination listed in the Public Service Act 1999. The Committee also requests the Government to indicate how public service employees and applicants to public service employment are protected against discrimination based on political opinion in practice.

The Committee recalls that the Conference Committee noted that further to section 3 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 Promulgation]” and that it urged the Government to ensure that government employees had access to competent judicial bodies to claim their rights and to adequate remedies. While noting the Government’s indication regarding the jurisdiction of the High Court to hear any application for judicial review of the decisions of the Public Service Commission concerning termination of government employees, the Committee asks the Government to provide detailed information on the procedure and means of redress available to workers excluded from the scope of the ERP, alleging discrimination in employment or occupation which purport to challenge or involve public authorities. The Government is requested to provide information on the number of complaints submitted, the grounds invoked, the remedies granted and the sanctions imposed.

Article 1. Equal access to education and vocational training. In its previous comments, the Committee noted that the education system was to undergo an extensive reform and requested the Government to indicate whether the Education (Establishment and Registration of Schools) Regulations, 1966, which provide that in the admission process preference may be given to pupils of a particular race or creed, was still in force. According to the Government’s report, a draft Education Decree that will repeal the Education Act and all its subordinate legislation, including the 1966 Regulations, is being prepared. The draft Decree has been vetted by the Attorney-General and sent back to the Ministry of Education for amendment. The Committee notes that section 26(3) of the draft Education Decree provides that “no child shall be denied admission solely on grounds of race, age, disabilities or religion”. The Committee recalls in this regard that access to education and to a wide range of vocational training courses is of paramount importance to achieving equality in the labour market (General Survey on Fundamental Conventions, 2012, paragraph 750). The Committee trusts that the Government will take the necessary measures to ensure the equal access of boys and girls, men and women from all ethnic groups to education and vocational training, and asks the Government to provide information on the measures taken to implement the reform of the educational system, including the adoption of the new Education Decree, and the results achieved. It requests the Government to clarify whether under section 26(3) of the draft Education Decree, the grounds of race, age, disability or religion can still be invoked, possibly in combination with other grounds, as one of the reasons to deny admission to school and to specify the grounds, if any, on the basis of which admission may be denied. The Committee reiterates its previous request for statistical information on the number of schools still applying race or creed as an admission requirement as well as the number of pupils enrolled in these schools.

Article 2. National policy to promote equality of opportunity and treatment irrespective of race, colour and national extraction. In its previous comments, the Committee noted the adoption on 15 December 2008 by the National Council for Building a Better Fiji (NCBBF) of the Peoples’ Charter for Change, Peace and Progress, which aims to build a society based on equality of opportunity for all Fiji citizens and on peace. It further noted that the Charter also contains specific measures concerning indigenous peoples and their institutions and that a number of recommendations were made by the NCBBF, such as the need to promulgate legislation prohibiting discrimination based on race, religion and sexual orientation, as well as legislation protecting the rights of ethnic minority groups (Indians, Pacific Islanders, Chinese, European and landless Fijians), especially with a view to improving access to land. As far as implementation is concerned, the Committee notes from the Government’s report that racial and inappropriate categorization and profiling in government records are being removed, the education system is being reformed and the name “Fijian” is to be applied to all citizens of Fiji while the name “i-Taukei” is used to designate indigenous Fijians who represent around 60 per cent of the population of Fiji. The Committee requests the Government to continue to provide information on the concrete measures taken to implement the Peoples’ Charter for Change, Peace and Progress with a view to prohibiting and eliminating discrimination, in particular racial discrimination, and to promote equal opportunities for all, including minority groups, in relation to access to education, vocational training, employment and various occupations. The Government is requested to provide information on any action or programmes undertaken by the Ministry for i-Taukei Affairs to promote equality in employment and occupation, including awareness-raising campaigns promoting tolerance between all components of the population.

Affirmative action. The Committee notes the Government’s indication that it has decided to replace the old affirmative action scheme in favour of indigenous peoples by a new “action scheme across all the races based on a means test” as part of the reform undertaken to develop and implement inclusive, non-discriminatory and non-race based policies towards the goal of common citizenry. It further notes that scholarship schemes that used to be race-based have been discontinued. The Committee wishes to recall that when adequately designed, affirmative action measures are aimed at ensuring equality of opportunity in practice, taking into account the diversity of situations of the persons concerned, so as to halt discrimination, redress the effects of past discriminatory practices and restore a balance, and that they are part of a broader effort to eliminate all inequalities and an important component of the national equality policy, referred to in Article 2 of the Convention. Such measures must genuinely pursue the objective of equality of opportunity, be proportional to the nature and scope of the protection or assistance needed or of the existing discrimination, and be examined periodically in order to ascertain whether they are still needed and remain effective. Affirmative action grounded on the prior consultation and consent of the stakeholders, including workers’ and employers’ organizations, helps to ensure that the measures taken are broadly accepted, effective and in line with the principle of non-discrimination (General Survey, 2012, paragraphs 862–864). In the light of the above, the Committee requests the Government to provide detailed information on the new action scheme envisaged and its implementation in the fields of education, vocational training, employment and occupation, indicating how it intends to remedy de facto inequalities, redress the effects of past discriminatory practices and promote equal opportunities for all. Please specify if the new scheme provides for monitoring and assessment mechanisms.

Gender equality. The Committee notes that the Government’s report contains information on the general strategies adopted to promote gender equality and promote the creation of enterprises by women, but does not provide any information on concrete measures taken for that purpose nor on the results achieved through, for instance the implementation of the Women’s Plan of Action 1999–2008 to which the Committee referred in its previous comments. The Committee notes the statistics regarding the participation rate of women on a number of bodies, such as the Employment Relations Advisory Board (29 per cent), the National Occupational Safety and Health Advisory Board (13 per cent) and the Wages Councils (20 per cent). The Government states that it aims to reach a participation rate of 30 per cent of women on employment and industrial relations bodies. The Committee further notes that the statistical data on the labour force provided by the Government are not disaggregated by sex and therefore do not give sufficient information on the participation of women and men in the labour market. The Committee notes that, in its concluding observations, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW), while welcoming the new Women’s Plan of Action (2010–19), again expressed concern at the persistence of practices and traditions, as well as strong patriarchal attitudes and deep-rooted stereotypes, regarding the roles, responsibilities and identities of women and men in all spheres of life. Such practices and customs perpetuate discrimination against women and girls and may constitute obstacles to their education. The Committee notes CEDAW’s concerns about the insufficient financial and human resources allocated to the national machinery for the advancement of women, as well as regarding the high number of women in the informal economy with no social security or other benefits and the unequal de facto situation of rural women in terms of access to land and credit (CEDAW/C/FJI/CO/4, 30 July 2010, paragraphs. 6, 16, 17, 20, 21, 28, and 30). The Committee requests the Government to provide detailed information on the concrete measures taken to promote effectively gender equality in employment and occupation, in the framework of the former and the new Women’s Plan of Action or otherwise, including measures taken to address gender stereotypes and improve the access of women to occupations traditionally held by men, through education and training, as well as measures taken to improve the access of women to land and credit. It also requests the Government to indicate the measures taken to increase the participation of women on employment and industrial relations bodies, and the results achieved.

Article 3(d). Promoting equality in employment under the control of a public authority. The Committee notes that the statistics provided by the Government on the number of men and women employed in the public sector, disaggregated by status (permanent, under a contract or temporary) show a balance between men and women. The Committee notes however that in its most recent concluding observations, the United Nations Committee on the Elimination of Racial Discrimination (CERD) drew the Government’s attention to the under-representation of minorities in public services and to the need to assess the reasons for this phenomenon and address it effectively (CERD/C/FJI/CO/18-20, 31 August 2012, paragraph 12). While noting the Government’s general statement that all ministries are implementing the Equal Employment Opportunity Policy, the Committee requests the Government to provide information on concrete measures taken to ensure equality of opportunity and treatment of men and women from all ethnic groups in employment in the public service. Please also provide up-to-date statistics on the representation of men and women, from all ethnic groups, in the different categories, levels and grades in the public service.

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