A proposed Employment Relations Bill before the Ministry of Employment has been criticised by legal experts for creating structural incentives for bribery and corruption and for putting employers at heightened legal risk from the first day of employment, according to Munro Leys partner Jon Apted.
Speaking last week at the BSP Life Fiji Human Resources Institute Annual Convention at the Sofitel Fiji Resort and Spa in Nadi, Apted voiced alarm at a key feature of the draft law: the ministry’s ability to pursue both civil penalties and criminal prosecutions for the same workplace breach. “Civil penalties … are usually used instead of criminal offences, except for the overlap usually is only in very serious breaches,” he told delegates. Under the proposed framework, the ministry could commence civil penalty proceedings and later pursue criminal charges for the same matter, though a civil penalty could not be sought after a criminal conviction.
Apted warned that pairing broad prosecutorial discretion with heavy fines will tempt corruption. He said unscrupulous employers facing “draconian consequences” would have incentives to offer small bribes to enforcement officers. “I’m not saying all labour officers, but labour officers are human, they have bills to pay, commitments. This creates temptation, it’s very structurally bad,” he said, suggesting typical inducements might be “$500, $1000.” As an illustration, he said a security company with about 100 staff confronting a potential $100,000 fine for pay breaches would be strongly tempted to settle matters outside court rather than fight costly sanctions.
Apted contrasted Fiji’s draft with practices in other jurisdictions where the power to charge is separated from the power to prosecute, often requiring sign-off from an independent Director of Public Prosecutions (DPP) to avoid concentration of decision-making and reduce opportunities for abuse. He argued such safeguards spread responsibility and create a clearer, more accountable process.
Beyond enforcement, the Bill proposes significant changes to probationary employment. Probation would be capped at three months with a one-time extension of up to three months. Crucially, Apted said employers would lose special protections during that period: “The same rules apply during probation, same leave, same requirement to give notice and you are liable for unjustified dismissal, even if it happens during probation.” He pointed out that in many countries employees cannot bring an unjustified dismissal claim until they have worked six or 12 months, a threshold intended to allow employers some latitude to take hiring risks and encourage employment.
Apted warned the combination of immediate exposure to unfair dismissal claims and stiff administrative or criminal penalties could deter hiring and increase business costs, with downstream effects on employment opportunities. His comments add to ongoing debate about the Bill’s balance between worker protections and practical enforcement mechanisms. The ministry has not publicly responded to Apted’s critique at the convention; the Bill’s progress through consultation or Cabinet review was not outlined at the event.
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