William Clarke

The Fiji Law Society is concerned about the approach and legal implications of the Health and Safety at Work (General Work Place Conditions) Regulations 2021.

In a statement, President William Clarke says like many others, Society appreciates and understands the government’s concern for workplace safety.

Clarke says the Society understands and supports the need to get to the point where enough people are vaccinated that Fiji can return to a more normal state of affairs.

However, he stresses that Society is of the view that a different approach is needed and that there are better ways to achieve these aims.

He says health is important, but so are people’s legal rights that ensure Fiji remains a free and democratic society.

Clark highlights that unfair discrimination is prohibited under the Constitution.

The Fiji Law Society President explains the new Regulations rules effectively discriminate against employees on the basis of their personal circumstances or health status in breach of section 26(3)(a) of the Constitution.

Clark adds that it may be fair to protect the health of all people in a workplace and to require all workers there to be vaccinated.

However, he says it may not be fair in other circumstances.

For instance, Clark explains that it would not be fair if that workplace is a supermarket, and the same rules do not apply to customers.

He goes on to explain that the Regulations prohibit an unvaccinated supermarket worker from entering the premises but does not prevent an unvaccinated customer from doing the same.

Clark says in such a case, the workers could also be exposed to unvaccinated customers anyway and the regulation will not serve its purpose.

He says that Fiji Law Society also has concerns about the validity of Regulations allowing an employer to dismiss an employee who has not been vaccinated by prescribed dates.

The statement from the Society says this appears to be incompatible with an individual’s right to economic participation under section 32 of the Constitution and worker protections in the Employment Relations Act.

The Society President says there are many other questions that arise, including for employees who work from home (and whose homes may be designated “workplaces”), for young people who are just entering the workforce and may not have previously been vaccinated.

Clark says it has not been made clear how vaccination status can be proved, or how fast medical exemptions will be processed.

The Fiji Law Society is strongly urging the Government to work in a tripartite forum with employers and employee bodies such as unions to design and implement rules which are consistent with the law and are clear.

It says a collaborative approach will prevent resistance and uncertainty.