Human Resources and the 2013 Constitution

1. Human Resources and the 2013 Constitution Nazhat Shameem 11th April 2014 Human Resources Institute Seminar

2. The 2013 Constitution and Rights • Employment rights and social and economic rights • The background to rights • The history of building rights in Fiji • The European Court and looking at employment rights

3. Interpreting the 2013 Constitution • Section 3 • Section 7 and importing international law to Fiji • Rights are read broadly • Limitations are read narrowly • Limitations must be by a prescribed law – also in section 5 • Limiting laws must be in response to a pressing social need • The limitation must be justifiable in a democratic society • The limitation must be proportionate to the social need

4. What is proportionate? • Is it proportionate to require permits to march to preserve public order? • Is it proportionate to require strike notices before a trade union decides to strike? • Is it proportionate to ask journalists to disclose their sources in the investigation of crime? • Is it proportionate to restrict public office holders from political meetings during elections?

5. Specific examples • Employment Relations Promulgation • Public Service Act and Amendment Decree • Essential National Services Decree

6. Work Places and Religion • Freedom of religion • Limitations • What is a legitimate reason to limit rights to manifest religion? • Eweida v British Airways (wearing of a cross at work) • Chaplin (wearing of a cross whilst a nurse) • McFarlane (refusal to give sex therapy counselling to gay couples) • Ladale (refusal to conduct same sex marriages) • The law will lean in favour of freedom to practise religion except when it will lead to discrimination against others

7. Guidelines on freedom of religion for employers • take a balanced view of the religion or belief needs of the employee • review policies and practices causing problems for employees related to religion or belief, ensuring employees are not subjected to a detriment at work whilst this happens • consider the impact that meeting those needs has on other employees • consider the impact that meeting those needs has on customers, and • consider whether the aim they are pursuing is legitimate and, if so, whether it is being pursued by proportionate means

8. Section 26 • Right to equality means the right not to be discriminated against • Recruitment criteria and process – is there direct or indirect discrimination? • Corporate dress – does it discriminate against those who have differing cultural views of modesty? • Promotion – does the criteria discriminate against workers who need maternity leave? • Health status – do you discriminate against those with HIV status? • Gender identity – is their discrimination against those of a different gender identity? • Sexual harassment – is your policy implemented?

9. Persons living with Disabilities • Section 42 • Transport • Access to buildings • Access to facilities • Communication • Working arrangements • Are you discriminating against the disabled?

10. Close • Fiji is at the cutting edge of rights development by including social and economic rights • Rights to a clean environment, rights to housing sanitation food and water all affect workers and employment rights • Employers should pre-empt litigation by responding to these rights themselves • HRI can issue guidelines to help employers to implement the Constitutional rights which affect the work place