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.

Comments adopted by the CEACR: Fiji

Adopted by the CEACR in 2021

C029 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C105 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

C105 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C138 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C181 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C182 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C182 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)