A proposed Employment Relations Bill could transform Fiji’s Ministry of Employment into a revenue-generating agency and sharply increase employers’ legal exposure, a senior lawyer has warned.
Jon Apted, a partner at law firm Munro Leys, told a gathering in Nadi this week that the current draft of the Bill moves well beyond international practice by allowing the State to pursue three separate avenues of redress for the same workplace breach. “Prior to this legislation, if you breached your worker’s rights as an employer, the worker could take you to the tribunal or to the court and get compensation,” Apted said. “This law preserves that right but this Bill adds two more means of enforcement.”
Under the draft legislation, an employer facing a rights breach could still be pursued by a worker or union through the employment tribunal or the courts for damages. In addition, Apted said, the Bill introduces civil penalties and preserves criminal offences in respect of the same contraventions — effectively tripling potential liability for a single mistake. He said this differs from overseas practice, where civil penalties are typically used as an alternative to criminal prosecution for less serious breaches rather than being layered on top of them.
“Overseas, in other countries, civil penalties are used instead of criminal offences, except for very serious breaches. In this Bill, all the ones that are civil penalties are just the same as the offences, and that’s in addition to the worker or the union’s right to take you to the tribunal or to the employment court for damages,” Apted told attendees.
A further element of concern for legal and business circles is the Bill’s financial architecture. Unlike most state revenue, which is directed to the consolidated fund, the draft Employment Relations Bill would allow the Ministry of Employment to retain fines and civil penalty proceeds in a ministry-controlled fund. “Why is the ministry so interested in these astronomical fines, why are they so interested in this multi-layered dipping because the money from the fines and from the civil penalties the Bill provides, go into the ministry’s fund. They don’t go to the consolidated fund, and the ministry controls the fund,” Apted said.
He warned that giving the ministry a direct financial stake in enforcement could create perverse incentives. “If it’s a business, you’re going to prosecute people in your own self-interest. You won’t necessarily be fair, because your incentive is to have more money to spend on your scholarships or on building your empire,” Apted said, arguing the structure could undermine impartiality in enforcement decisions.
The Employment Relations Bill is expected to be tabled alongside the Work Care Bill in the next session of Parliament. Both measures are under close scrutiny from employers and legal practitioners, who are watching for how the final versions will balance worker protections with fair and proportionate enforcement mechanisms.
Apted’s remarks add to the emerging debate over the two bills, highlighting potential legal and fiscal consequences for employers and for the Ministry of Employment itself if the draft’s enforcement and revenue provisions are retained. No response from the ministry or government spokespeople was reported at the time of the Nadi gathering.
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