Underground Work (Women) Convention, 1935 (No. 45) - Fiji (Ratification: 1974)

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comments: C.155 and C.184

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on Occupational Safety and Health (OSH), the Committee considers it appropriate to examine Conventions Nos 45 (underground work (women)), 155 and its Protocol of 2002 (OSH) and 184 (safety and health in agriculture) together.

Application of Conventions Nos 155 and 184 in practice. The Committee notes the information provided by the Government in reply to its previous request on the increase in enforcement notices, indicating that this was the result of a higher number of National Occupational Health and Safety Service (NOHSS) audits carried out as a prerequisite for license renewals. Concerning the application of Convention No. 184, the Committee notes the Government’s indication that: (i) there have been 13 workmen’s compensation claims lodged with the Accident Compensation Commission Fiji in the agricultural sector; (ii) 2 workers from the sector have been paid 24,000 Fiji Dollars (FJD) (approximately US$11,262) as lump sum compensation; (iii) there have been 96 workplace inspections with the issuance of 24 enforcement notices for the fiscal years 2020-2021 to 2021-2022. The Committee requests the Government to continue to provide information on the implementation of Conventions Nos 155 and 184 in practice, including available statistical information on the number of occupational accidents and cases of occupational disease, including in the agricultural sector, as well as the number and nature of contraventions reported.

A. General provisions

Occupational Safety and Health Convention, 1981 (No. 155)

Legislative developments. The Committee notes the Government’s indication, in reply to the Committee’s previous comment, that the Health and Safety at Work Act 1996 (HSWA) will be reviewed to consider the establishment of the Fiji Work-Care Authority by the National Occupational Health and Safety Advisory Board (NOHSAB). It further adds that the NOHSS will continue with consultations in this respect. The Committee therefore requests the Government to continue to provide information on progress achieved in the ongoing legislative review process. The Committee also once again requests Government to provide information on the manner in which effect is given to the following articles of the Convention: Article 1 (application to all branches of economic activity, including domestic workers), Article 11(f) (introduction of knowledge and risk assessment systems), Article 19(e) (possibility to bring in technical advisers from outside the undertaking) and Article 21 (provision of medical examinations at no cost for workers).

Articles 4 and 7 of the Convention. National occupational safety and health (OSH) policy. Review of the situation regarding OSH at appropriate intervals. The Committee notes with interest the Government’s indication that the draft for a National OSH Policy 2021 for Fiji has been formulated in consultation with the tripartite members of the NOHSAB. The Government adds that the draft was endorsed by both the NOHSAB and the Minister for Employment, Productivity and Industrial Relations, and will subsequently be tabled in Cabinet for endorsement. The Committee requests the Government to provide information on the adoption of the National OSH policy as well as its subsequent implementation. The Committee also requests the Government to provide further information on the measures taken or envisaged to ensure that the national OSH policy is periodically reviewed, as well as on other measures taken to review the OSH situation at appropriate intervals.

Article 11(b). Substances subject to authorization and control. The Committee previously noted that section 53(1) of the HSWA and section 31 of the Health and Safety at Work (Control of Hazardous Substances) Regulations 2006 provide for the creation of the Fiji Chemical Inventory for all industrial chemicals by the Chief Health and Safety Inspector. It notes the Government’s reply to its previous request that the establishment of the Fiji Chemical Inventory is still a work in progress due to the COVID-19 pandemic. The Government adds that the NOHSS is currently: (i) organizing to form an association with chemical importers, manufacturers, suppliers, distributors and employers in Fiji and (ii) consulting the Fiji Revenue Customs Services to prohibit the entry of prohibited hazardous substances and chemicals to the territory. The Committee requests the Government to continue providing information on all progress made towards the establishment of the Fiji Chemical Inventory, as provided for by section 53(1) of the HSWA and section 31 of the Health and Safety at Work (Control of Hazardous Substances) Regulations 2006.

Article 17. Two or more undertakings at one workplace. The Committee notes the Government’s statement, in reply to the Committee’s previous comment, that the implementation of Article 17 will be part of the legislative review of the HSWA. The Committee requests the Government to take the necessary measures, in the ongoing legislative review process, to establish a duty to collaborate on OSH matters for undertakings engaging in activities simultaneously at the same workplace.

Protocol of 2002 to Convention No. 155.

Article 1 of the Protocol. Commuting accidents.The Committee requests the Government to indicate whether the legislation covers the concept of “commuting accident”, namely an accident resulting in death or personal injury occurring on the direct way between the place of work and: (i) the worker’s principal or secondary residence; or (ii) the place where the worker usually takes a meal; or (iii) the place where the worker usually receives their remuneration.

Article 3(a)(ii), (c) and (d) of the Protocol. Procedures for recording. Provision of information to workers and their representatives. Duration for maintaining records. Confidentiality of personal data. The Committee notes the procedures for recording occupational accidents and diseases established in the HSWA (sections 26-29) and in the Health and Safety at Work (Administration) Regulations 1997 (sections 6 and 7). However, the Committee observes that these provisions do not establish the requirements and procedures for recording in relation to: (i) the employer’s responsibility to provide appropriate information for workers or their representatives concerning the recording system (Article 3(a)(ii)); (ii) the duration for maintaining these records (Article 3(c)) and (iii) the confidentiality of personal and medical data in the employer’s possession (Article 3(d)). The Committee therefore requests the Government to indicate the measures taken or envisaged to give effect to Article 3(a)(ii), (c) and (d) of the Protocol to Convention No. 155.

Article 4(a) of the Protocol. Information for workers and their representatives concerning notified cases. The Committee notes that sections 6 and 7 of the Health and Safety at Work (Administration) Regulations 1997 establish the obligation for employers to notify and record an accident, incident or disease that occurs at a workplace, using the forms provided in schedule 7 of the Regulations. However, these provisions do not establish the responsibility for employers to provide appropriate information to workers or their representatives concerning notified cases. The Committee requests the Government to provide information on the measures taken or envisaged to give effect to Article 4(a) of the Protocol.

Article 6. Annual publication of statistics. The Committee notes that the Ministry of Employment, Productivity and Industrial Relations published annual reports from 2010 to 2016, which contained statistics on injuries cases and death cases. The Committee requests the Government to provide information on the measures taken or envisaged to ensure that statistics are published annually, compiled in such a way as to be representative of the whole country, concerning occupational accidents, occupational diseases and, as appropriate, dangerous occurrences and commuting accidents, as well as the analyses thereof.

B. Protection in specific branches of activity

Underground Work (Women) Convention, 1935 (No. 45)

The Committee recalls that at its 334th Session (October-November 2018), the Governing Body of the ILO decided, on the recommendation of the Standards Review Mechanism Tripartite Working Group, to classify Convention No. 45 as an outdated standard, and to place on the agenda of the 113th Session (2024) of the International Labour Conference an item concerning the abrogation of the Convention. The Governing Body also requested the Office to ensure follow-up for Member States currently bound by Convention No. 45 to promote ratification of up-to-date occupational safety and health instruments, in particular the Safety and Health in Mines Convention, 1995 (No. 176), and to launch a campaign to promote ratification of that Convention. The Committee encourages the Government to give effect to the decision taken at the 334th Session of the Governing Body (October-November 2018) approving the recommendations of the Standards Review Mechanism Tripartite Working Group, and to consider ratification of more up-to-date instruments in this area. The Committee takes this opportunity to remind the Government that the 110th Session of the International Labour Conference (June 2022) included a safe and healthy working environment in the ILO’s framework of fundamental principles and rights at work, thus amending the ILO Declaration on Fundamental Principles and Rights at Work (1998). The Committee draws the Government’s attention to the possibility of availing itself of ILO technical assistance with a view to bringing both the applicable law and practice into conformity with the fundamental Conventions on occupational safety and health and thus promote the ratification and effective application of those instruments.

Safety and Health in Agriculture Convention, 2001 (No. 184)

The Committee notes the information provided by the Government on Articles 4(2)(b) and 4(3), 6(1), 7, 8, 12, 13, 16 and 17 which address the Committee’s previous requests.

Article 4(1) and (2)(c) of the Convention. Adoption of a coherent national policy on occupational safety and health in agriculture and inter-sectoral coordination. In reply to the Committee’s previous comment, the Government indicates that a second National Occupational Health and Safety profile for Fiji has been formulated. The Committee notes that the draft National OSH Policy covers a number of elements related to the agricultural sector, including the protection of agricultural workers, the revision of agricultural regulations and a review of the Pesticides Act. The Government also indicates that the need for a mechanism for inter-sectoral coordination among relevant authorities and bodies for the agricultural sector has been highlighted in the draft National OSH Policy, and that it intends to develop a separate policy on occupational safety and health for agriculture. The Committee requests the Government to continue to provide information on the progress achieved in the development of the OSH policy for the agricultural sector, either through the adoption and implementation of the National OSH Policy which addresses agriculture or through the development of a separate policy. It also requests the Government to continue to provide information on the establishment of a mechanism of inter-sectoral coordination among relevant authorities and bodies for the agricultural sector.

Article 5. Inspection services in agriculture.The Committee refers the Government to its comments adopted in 2023 under the Labour Inspection (Agriculture) Convention, 1969 (No. 129).

Article 6(2). Employers’ obligations in agriculture. Cooperation between two or more employers in an agricultural workplace. Referring to its comments above on Article 17 of Convention No. 155, the Committee requests the Government to provide information on the measures adopted or envisaged in order to ensure that whenever in an agricultural workplace two or more employers undertake activities, or whenever one or more employers and one or more self-employed persons undertake activities, they shall cooperate in applying the safety and health requirements.

Articles 9 and 10. Machine safety and ergonomics. The Committee notes that HSWA provides that: (i) an employer has the duty to make available adequate information to workers in appropriate languages about the use of any plant or substance used at work (section 9(2)(c)); and (ii) a person who manufactures, imports or supplies any plant or substance for use at a workplace shall take necessary steps to provide adequate information about the safe use of plants or substances at work, including the use for which the plant is designed (section 12(1)(c)). The Committee also notes the Government’s indication that all plant equipment and machinery are inspected either annually or biannually by a competent person prior to the issuance of relevant certifications. The inspections have as their purpose the identification of whether plant and machinery can be operated, adjusted and maintained safely and without risk to workers’ health and safety, with any deterioration detected and remedied before it results in a health and safety risk. The Government further adds that all manufacturers, importers, suppliers, installers and employers for agricultural plants and machinery should ensure the provision of all the relevant documents for plant, equipment and machinery, with the aim of ensuring that they undergo the necessary registration, testing, examination and certification prior to the use of any machines. The Committee observes, however, that there is no information on the manner in which agricultural machinery and equipment shall only be used for work for which they are designed and be operated by trained and competent persons, in accordance with Article 10(a) and (b) of the Convention. The Committee requests the Government to provide information on the measures taken: (i) to prescribe that machinery, equipment, appliances and hand tools used in agriculture, comply with national or other recognized safety and health standards and be appropriately installed, maintained and safeguarded (Article 9(1)); and (ii) to ensure that manufacturers, importers and suppliers comply with such standards and provide adequate and appropriate information, including hazard warning signs to the users and, on request, to the competent authority. The Committee also requests the Government to take measures to ensure that national laws and regulations: (i) prohibit the use of all agricultural machinery and equipment for purposes other than those initially envisaged (Article 10(a)); and (ii) require that all agricultural machinery and equipment be operated by trained and competent persons (Article 10(b)).

Article 12(a) and (c). Appropriate system for the importation, classification, packaging and labelling of chemicals used in agriculture. Suitable system for the safe collection, recycling and disposal of chemical waste. The Committee refers to its comments above on Article 11(b) of Convention No. 155 related to the establishment of the Fiji Chemical Inventory.

Article 15. Agricultural installations. The Committee notes the Government’s indication that section 12 of the HSWA provides obligations on manufacturers, importers, suppliers and installers of plant equipment and machinery. The Committee notes, however, that it does not contain provisions on the safety and health measures to be taken with regard to the construction, maintenance and repairing of agricultural installations. In this regard, the Committee requests the Government to provide information on the measures taken or envisaged to ensure that the construction, maintenance and repairing of agricultural installations are in conformity with national laws, regulations and safety and health requirements.

Article 18. Women workers. The Committee notes the Government’s indication that section 10(6) of the Health and Safety at Work (General Workplace Conditions) Regulations 2003 provides that where women are employed at a workplace, adequate, hygienic means for napkin disposal shall be provided. The Committee also notes that the Regulations provide that the rest facilities shall meet the needs of women workers (section 14(2)) and that no woman worker shall be assigned to manual transport of loads during pregnancy (section 42(4)). The Committee request the Government to provide detailed information on the measures taken to ensure that the special needs of women agricultural workers are taken into account with respect to breastfeeding and reproductive health.

Article 19. Welfare and accommodation facilities. The Committee notes the Government’s indication that part 4 of the Health and Safety at Work (General Workplace Conditions) Regulations 2003 deals with workplace amenities for: (i) facilities for personal belongings; (ii) facilities for dining; (iii) nursing and daycare facilities; (iv) washing facilities; (v) rest facilities; and (vi) sanitary conveniences. The Committee requests the Government to provide information on the minimum accommodation standards established for workers who are required by the nature of the work to live temporarily or permanently in the undertaking, in accordance with Article 19(b).

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes the Government’s report which includes the information concerning the proposed Revised Mineral (Exploration and Exploitation) Bill 2006 and the adoption of the Employment Relations Promulgation 2007 (No. 36 of 2007). It also notes the information that the focus towards modern standards on risk identification, assessment and control as provided for in, inter alia, the Safety and Health in Mines Convention, 1995 (No. 176) have been incorporated in the Revised Mineral (Exploration and Exploitation) Bill 2006, although not fully, but that the terms of Convention No. 176 are taken into account in the ongoing revision of the Mining Act 1978 (Cap 146). The Committee notes these developments and requests the Government to keep the Office informed of any new developments in the abovementioned respects.

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee notes the Government’s report which indicates that there have been no new legislative or other measures which impact on the application of the Convention and that the provisions of the Convention are fully incorporated in national legislation.

The Committee takes this opportunity to recall that, based on the conclusions and proposals of the Working Party on Policy regarding the Revision of Standards, the ILO Governing Body has decided that with respect to underground work the States parties to Convention No. 45 should be invited to contemplate ratifying the Safety and Health in Mines Convention, 1995 (No. 176), and possibly denouncing Convention No. 45 even though the latter instrument has not been formally revised (see GB.283/LILS/WP/PRS/1/2, paragraph 13). Contrary to the old approach based on the outright prohibition of underground work for all female workers, modern standards focus on risk assessment and risk management and provide for sufficient preventive and protective measures for mineworkers, irrespective of gender, whether employed in surface or underground sites. As the Committee has noted in its 2001 General Survey on night work of women in industry in relation to Conventions Nos 4, 41 and 89, “the question of devising measures that aim at protecting women generally because of their gender (as distinct from those aimed at protecting women’s reproductive and infant nursing roles) has always been and continues to be controversial” (paragraph 186).

In the light of the foregoing observations, and also considering that the present trend is no doubt to remove all gender-specific restrictions on underground work, the Committee invites the Government to give favourable consideration to the ratification of the Safety and Health in Mines Convention, 1995 (No. 176), which shifts the emphasis from a specific category of workers to the safety and health protection of all mineworkers, and possibly also to the denunciation of Convention No. 45.

The Committee recalls that, according to established practice, the Convention will be next open to denunciation during a one-year period from 30 May 2017 to 30 May 2018. The Committee requests the Government to keep it informed of any decision taken in this regard.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

1. The Committee notes the Government’s report which indicates that there have been no new legislative or other measures which impact on the application of the Convention and that the provisions of the Convention are fully incorporated in national legislation.

2. The Committee takes this opportunity to recall that, based on the conclusions and proposals of the Working Party on Policy regarding the Revision of Standards, the ILO Governing Body has decided that with respect to underground work the States parties to Convention No. 45 should be invited to contemplate ratifying the Safety and Health in Mines Convention, 1995 (No. 176), and possibly denouncing Convention No. 45 even though the latter instrument has not been formally revised (see GB.283/LILS/WP/PRS/1/2, paragraph 13). Contrary to the old approach based on the outright prohibition of underground work for all female workers, modern standards focus on risk assessment and risk management and provide for sufficient preventive and protective measures for mineworkers, irrespective of gender, whether employed in surface or underground sites. As the Committee has noted in its 2001 General Survey on night work of women in industry in relation to Conventions Nos. 4, 41 and 89, "the question of devising measures that aim at protecting women generally because of their gender (as distinct from those aimed at protecting women’s reproductive and infant nursing roles) has always been and continues to be controversial" (paragraph 186).

3. In the light of the foregoing observations, and also considering that the present trend is no doubt to remove all gender-specific restrictions on underground work, the Committee invites the Government to give favourable consideration to the ratification of the Safety and Health in Mines Convention, 1995 (No. 176), which shifts the emphasis from a specific category of workers to the safety and health protection of all mineworkers, and possibly also to the denunciation of Convention No. 45. In this respect, the Committee recalls that according to established practice, the Convention will be next open to denunciation during a one-year period from 30 May 2007 to 30 May 2008. The Committee requests the Government to keep it informed of any decision taken in this regard.