Fiji Employment Tribunal

In in v. Phillips #160;at 10, B J. summarizedrized the matter in this way:

“...if, therefore, there is fairly open on the words of the later Act, a construction optinch the earlier Acer Act may be saved from repeal, that conc conclusion is to be adopted.”

In Butler torney-General foal for the State of Victoria [1961] HCA 32; (1961) 106 CLR 268, Fullagar J. made the same point when he said at 276;

26. It should be noted that Section 20 of the Decree makes provision for genuine occupational exemptions in a manner consistent with Section 85 of the Employment Relations Promulgation 2007, however unlike the various Canadian case law that has been referred to within the Employer’s Submissions,^[17] the legislature has reduced and confined the concept of ‘genuine justification’ to paragraphs (f) to (j) of Section 19(3). That is, it does not apply to employment provisions. The only conclusion to be drawn out of all of this, is that for the purposes of the Human Rights Commission Decree 2009, compulsory retirement provisions are unlawful other than in the case of any law or administrative action that imposes a retirement age on a person who is the holder of a public office.^[18]

The Argument of the Employer

27. The argument of the Employer can be broken down into the following themes:-
    
    • (a) Section 77 (1)(d) of the Promulgation allows such compulsory retirement if it is prescribed under a law or in a contract.^[19]
      
    • (b) The provision is a mutually beneficial one, as it also recognises that workers may have a desire to retire;
      
    • (c) That the 2013 Constitution provides for the preservation of laws made between 5 December 2006 and the first sitting of the Parliament under the Constitution.
      
    • (d) That the provision is consistent with international decisions which recognise that retirement ages in collective agreements can be a justifiable exception to an age discrimination prohibition.
      
28. These issues can be addressed in turn.
    

Does Section 77 (1)(d) of the Promulgation allows such compulsory retirement if it is prescribed under a law or in a contract?

29. As mentioned and provided for in the reasons above, the application of the Promulgation can only be considered in the context of the 2010 Employment Contract.
    
30. In this regard Section 77 (1)(d) of the Act provides:

If an applicant for employment or a worker is qualified for work of any description, an employer or a person acting or purporting to act on behalf of an employer must not—

(d) retire the worker, or to require or cause the worker to retire or resign, subject to any written law or employment contract imposing a retirement age,

by reason of any of the prohibited grounds of discrimination set out in section 75 or by reason of the worker’s involvement in the activities of a union.

31. The prohibited grounds of direct and indirect discrimination are set out in Section 75 of the Promulgation. They are:

actual or supposed personal characteristics or circumstances, including: ethnic origin, colour, place of origin, gender, sexual orientation, birth, primary language, economic status, age, disability, HIV/AIDS status, social class, marital status (including living in a relationship in the nature of a marriage), employment status, family status, opinion, religion or belief.

32. The key issues to this first question are this.
    
    • (a) Is the Grievor, a worker qualified for work of any description, in a situation where an employer retires the worker or causes him to resign; and if so
      
    • (b) was there a written law or employment contract imposing a retirement age.
      
33. There is no evidence to the contrary that the Grievor was not qualified for work of any description. The Tribunal accepts that given the Grievor’s 33 years of service with the Employer, that he would satisfy that requirement, at least at the relevant time. There also appears no real dispute that the Employer took it upon itself to utilise the provision (whether in the Memorandum of Agreement or Employment Contract), as a consequence of the Grievor’s age.
    
34. The critical issue is whether or not there was a written law or employment contract imposing a retirement age. The Employer makes no claim to there being a written law that applies to the Grievor for this purpose. All that remains therefore is to ascertain whether or not there is in place, an ‘employment contract imposing a retirement age’. Paragraph 37 of the Preliminary Submission of the Employer states:
    

The meaning of the provision is clear: an employer may not retire or compel the retirement of a worker, unless there is an applicable written law prescribing a relevant retirement age, or the parties have agreed in a written employment contract (either individual or collective) that there should be a compulsory retirement age.

35. If the argument pertaining to the applicable written law is set aside, what we have is the residual suggestion by the Employer, that where parties have agreed in a written employment contract (either individual or collective) that there should be a compulsory retirement age, then such arrangement is not discriminatory. So as to be clear it is worth showing this interpretation, against the precise language of the provision at Table 1.
    

Table 1: A comparison of the statutory provision and the meaning provided by the Employer

36. At the outset, what Section 77(1) of the Promulgation does, it to render discriminatory, any such retirement based on the prohibited ground of discrimination, in this case age, subject to whether or not any employment contract imposing a retirement age is in place. So the question remains, is there an employment contract imposing a retirement age in place?
    

What is an Employment Contract?

37. Section 4 of the Promulgation defines employment contract to mean:
    

a collective agreement or apprenticeship contract specified under this Promulgation or any other written law or an oral or written contract of service between a worker and an employer

38. To make things clear, an ‘employment contract’ can be:
    
    • (i) A collective agreement. That is in turn defined at Section 4 to mean:
      

an agreement made between a registered trade union of workers and an employer which—

(a) prescribes (wholly or in part) the terms and conditions of employment of workers of one or more descriptions;

(b) regulates the procedure to follow in negotiating terms and conditions of employment; or

(c) combines paragraphs (a) and (b);

(ii) An apprenticeship contract specified under this Promulgation or any other written law.^[20]

(iii) An oral contract of service

(iv) A written contract of service.

39. It does not appear as proposed by the Employer, confined to a written employment contract (either individual or collective).
    

Is the Employment Contract ‘Imposing’ a Retirement Age?

40. Once the type of employment contract has been identified, one must then ask the question, does it ‘impose’ a retirement age? It is the word ‘imposing’ that becomes key to the analysis. The meaning of this word must be found by the way in which it is used within the legislation. In the case of the expression, ‘written law imposing a retirement age’, the imposition is one created by the parliament. That is, there is a compulsion to cease employment. It is mandated by law. Subject to any constitutional limitations, it is not an option. It is an imposition to apply to categories of workers as determined. For example, Section 14 (1) of the Civil Service Regulation provides:
    

An employee must be retired from the civil service on reaching 55 years, unless

the Constitution or any other written law specifies a different age in respect of

any employee.

41. The Employer’s Submissions in effect argue that in the case of an individual or collective written contract, that where a provision has been mutually agreed, then such a situation gives rise to an ‘imposition’. But it is hard to see how such a meaning could be viewed as comparable to that of a statutory imposition, particularly now having regard to the language contained both within the later in time provisions found within the Human Rights Commission Decree 2009 and the 2013 Constitution.^[21] For example, in support of the Employer’s interpretation, it would have been easy for parliament to have drawn a distinction between what is meant by the respective expressions, but that does not appear to have been done. Despite the submissions of the Employer, the Tribunal is not of the view that Section 77(1) (d) of the Promulgation provides that in one case, there is a statutory imposition of a written law and in the other, a voluntary way in which parties to an employment contract can elect whether to agree or not, to a compulsory age requirement.
    
42. The reason for this appears clear. First and foremost, the expression must be used consistently where it is applied within the legislation and more particularly within one location.^[22] The context of the word once achieved and applied to one expression, needs to be then applied consistently to that second expression, particularly where it is used in a collective sense. To allow for anything else, will yield quite perverse outcomes and ones that seem at odds with the later language of the Human Rights Decree 2009 and the 2013 Constitution. In the case of a Collective Agreement, Apprentice Contract, Oral Contract or Written Contract, providing that there is an agreement between the parties, within any of these types, this would, according to the Employer’s argument, ceteris paribus, be sufficient to otherwise defeat a claim against age discrimination.
    
43. With due respect to the Employer, that appears too far-fetched a result. There would be no purpose of having any age discrimination law, if a significant aspect to it, that is, the termination of persons based on age, was not allowed to have effect. The imposition would appear to be something that occurs by virtue of the condition being imposed directly by statute, or indirectly by way of contract. Such a view would appear to be consistent with the meaning provided both within the former and current Constitutions, as well as the Human Rights laws that make reference to an administrative action taken or imposed under a law. No other meaningful and consistent construction of the provision can be given.^[23]
44. In 2010, when the Employment Contract between the parties was entered into, the only imposition that could occur would be one that drew from the parameters that had been provided for, by virtue of the former Constitution and the Human Rights Commission Decree 2009. The limitation as to who could secure compulsory retirements under the legislation appears quite clear. The fact that the Constitution was ultimately abrogated did nothing to diminish the statutory regime that together made up Fiji anti-discrimination law. There was simply no imposition arising out of any law or administrative action that gave rise to the making of a contract.
    

Is the Clause 17 of the Memorandum of Agreement Designed to be Mutually Beneficial?

45. Once the first of the four contentions made by the Employer in its submissions have been defeated, the others appear to follow a similar fate. Of course it is the case that workers would have a desire to retire. Workers are entitled, subject to providing the relevant statutory notice, to resign or retire from the workforce. They are entitled to resign from employment, at any stage. And so too is an Employer entitled to bring an employment contract to an end, providing that it is done lawfully and with justification. What cannot happen, is that a person can be terminated in their employment because of their age. There is no mutual benefit in providing that discretion. As Coventry J said in Suva City Council,^[24]
    

There are many authorities concerned with the limitation or modification of anti-discrimination provisions by agreement between the parties concerned. In the Newfoundland Hospital case it was stated that “Human rights legislation sets out a floor beneath which the parties cannot contract out. Parties can contract out of human rights legislation if the effect is to raise and further protect the human rights of the people affected. (Newfoundland Association of Public Employees v Newfoundland Hospital etc [1996] 2 SCR3). For example, a staff association comprising for the most part heterosexual males of one particular race could not conclude any kind of collective agreement which discriminated against persons of a particular sexual orientation or women or those of a different race. To allow this would mean those without bargaining power might be coerced or forced to give up their rights under human rights legislation....

46. The circumstances for why a worker may seek to retire from the workforce at the age of 55 years or earlier, may be quite distinct from that of a worker who has significant financial obligations and many dependents to support. A female or male worker may yearn or by necessity, require an opportunity for financial independence or continuing income earning in their later years. On occasions, employers may wish to offer financial incentives for workers to take a voluntary retirement that possibly may achieve the same result as a compulsory retirement scheme; however compulsion and voluntarism are the polar opposites. Imposition cannot mean in one sense to compel and in another to allow parties to enter into agreement. Such a situation is also distinguishable from that raised by the Employer in the case of Jagjit Singh v The University of the South Pacific,^[25] where it was held by the Chief Tribunal that the authority that gave rise to the compulsory retirement of Mr Singh, was one founded in law, by virtue of the Staff Ordinance 2006. The present case is reliant on the contractual entitlement to do so only.
    
47. The Employer in its Preliminary Submissions relies on the Canadian case of McKinney v The University of Guelph^[26], citing the reference to the mutual benefits of a Collective Agreement, “represent(ing) a total package balancing many factors and interests”. Yet that case too is clearly distinguishable. Under Section 1 of the Canadian Charter of Rights and Freedoms, there is a test available to justify the limitation of a ‘charter right’, where it can be shown:-
    
    • (i) The objectives of the law limiting the right, are sufficiently important to warrant the limitation (exemption); and
      
    • (ii) The outcomes of a ‘proportionality test’, in which an evaluation of the impugned law is balanced against the nature of the right, the extent of its infringement and the degree to which the limitation furthers other rights or policies of importance in a free and democratic society.
      
48. That is not a test available under Fijian anti-discrimination law. Under Section 21 of the Human Rights Commission Decree 2009, the test for ‘genuine justification’ is set out. In Fiji, unlike Canada, it does not apply to issues pertaining to age discrimination of employment, but is stated as follows:
    

Adverse differentiation by reason of a prohibited ground of discrimination in relation to any of the areas referred to in paragraphs (f) to (j)&#f section 19(3) is nots not unfair discrimination if there is genuine justification for the differentiation.

“(f) subject to subsection (4), membership, orp, or the making of an application for membership, of an employersʼ organization, an employeesʼ organization or an organisation that exists for members of a particular trade, calling or profession;

(g) the provision of goods, services or facilities, including facilities by way of banking or insurance or for grants, loans, credit or finance;

(h) access by the public to any place, vehicle, vessel, aircraft or hovercraft which members of the public are entitled or allowed to enter or use;

(i) the provision of land, housing or other accommodation;

(j) access to, and participation in, education.”

The 2013 Constitution provides for the preservation of laws made between 5 December 2006 and the first sitting of the Parliament under the Constitution

50. The next issue that is raised by the Employer is reliant on Section 173 of the present Constitution, insofar as it provides for the continuance of any laws made during the period between 5 December 2006 and the first sitting of the Parliament under the Constitution. There is simply no dispute insofar as that proposition is concerned. The Employment Relations Promulgation 2007 is the central labour law of the country. But the continuance of the compulsory retirement provision within the 2001 Memorandum of Agreement, cannot rely on the 2013 Constitution for salvation.
    
51. A provision that is void ab initio will not travel the passage of time on that basis. Insofar as the 2010 Written Contract is concerned, for the reasons advanced earlier, its status would not be affected or fall within the purpose of the preservation arrangement provided for within Section 173 of the 2013 Constitution.
    

That the provision is consistent with international decisions which recognise that retirement ages in collective agreements can be a justifiable exception to an age discrimination prohibition.

52. The final argument that the Employer raises is that such provisions within Collective Agreements have been deemed justifiable exceptions to an age discrimination prohibition in international decisions. In specific support of that proposition, Counsel relies on the cases of Dickason v The Governors of the University of Alberta and the Alberta Human Rights Commission^[27] and McKinney & Ors v University of Guelph^[28] With due respect to Counsel, the cases referred to, come out of a different time and statutory regime. Remarkably while venturing all the way to Canada for some supportive law, the Employer makes no reference to the prohibition that exists much more locally, for example, under Australia’s Age Discrimination Act 2004;^[29] or in the case of New Zealand, where age is a prohibited ground of discrimination both within Section 105(1) of the Employment Relations Act 2000 and at Section 21(1) (i) of the Human Rights Act 1993.
    
53. The fact of the matter is that the Canadian cases that have been cited by the Employer, took place prior to the broader ‘take up’ of anti-discrimination law in many countries. In the case of several of the complainants in McKinney, that had unsuccessfully sought to file complaints within the Ontario Human Rights Commission, the Commission had no jurisdiction to deal with matters with respect to the employment of persons over the age of 65 years, at that time. That situation has now changed. Furthermore, in the case of McKinney, the issue was a restricted one insofar as the question that was asked, was whether or not the university’s compulsory retirement policy, violated Section 15 of the Canadian Charter of Human Rights and Freedoms on the basis that the University formed part of the government apparatus within the meaning of Section 32(1) of the Charter and that the retirement policy was in fact one made by law. The case before this Tribunal does not deal with the reliance on a compulsory imposition founded in law. In any event, as mentioned earlier, the scope of Section 1 of the Canadian Charter, that makes provision for a ‘justification test’ to be applied, does not apply to the Fijian Human Rights legislative regime.^[30]
    

The 2013 Constitution

54. The Employer additionally submits that Section 26(8) of the Constitution provides that retirement ages are an exception to the constitutional right to equality and protection from discrimination. Section 26 provides:
    

Right to equality and freedom from discrimination

(1) Every person is equal before the law and has the right to equal protection, treatment and benefit of the law....

(3) A person must not be unfairly discriminated against, directly or indirectly on the grounds of his or her— (a) actual or supposed personal characteristics or circumstances, including ...age,

(4) A law or an administrative action taken under a law may not directly or indirectly impose a limitation or restriction on any person on a prohibited ground.

(7) Treating one person differently from another on any of the grounds prescribed under subsection (3) is discrimination, unless it can be established that the difference in treatment is not unfair in the circumstances.

(8) A law, or an administrative action taken under a law, is not inconsistent with the rights mentioned in this section on the ground that it...

— (b) imposes a retirement age on a person;

55. The Employer cannot rely on Section 26(8) of the Constitution as authority for retaining a clause from a Memorandum of Agreement that is now nearly 16 years old. It is neither a law nor an administrative action taken under a law. In the case of the 2010 Written Contract, it too is neither a law nor an administrative action taken under a law. Notably here, the Employer has not made reference to the role, if any, that Section 26(7) of the Constitution should play in any analysis.
    

Could a Compulsory Retirement Policy be Otherwise Fair in the Circumstances?

56. For the sake of completeness, there remains one final submission by the Employer that needs to be ventilated. The Employer has drawn an analogy to the then 1990 and 1992 Canadian decisions, where at least in the case of Dickason, it was argued within the majority judgment that the overall benefits within a Collective Agreement need to be assessed as to whether or not the advantages of what are contained as part of the bargain, need to be factored and counterbalanced against any burdens that may be imposed.
    
57. For the reasons that the Tribunal has already alluded to in the case of McKinney, the legislative regime is not comparable. Though so as not to leave that submission unanswered, this question of representative bargaining and whether the activities of a couple of individual union bargaining agents can be deemed as covering all persons both Union and non-Union, has been considered in a decision of the Victorian Supreme Court in Ryan v Textile Clothing and Footwear Union and Anor^[31]. Relevant issues that could be relied upon when forming a view as to the representativeness of the bargaining process, would be:-
    
    • (i) Whether all employees at the time when the Agreement was made, were given the opportunity to vote;
      
    • (ii) Whether terms within the Agreement remain on foot;
      
    • (iii) Whether new employees to the Employer, particularly given the shifts in international labour law and the specific statutory expressions of Government would regard the compulsory retirement arrangement, discriminatory.
      
58. The Tribunal has also alluded to similar issues being identified by Coventry J in the case of Suva City Council, where the question of bargaining away the human rights of others, has been briefly canvassed. While these issues may not be directly relevant to any threshold question before the Tribunal, they may nonetheless be useful signposts to persons seeking to advance arguments reliant upon Section 26(7) of the Constitution on future occasions. Those considerations are nonetheless best left to another time.
    

Submissions of the Grievor

59. Within the ‘Workers Further Submissions’ a brief history in relation to the formation of the 2001 Memorandum of Agreement is set out.^[32] Consistent with its earlier submissions, it is stated that the retirement envisaged by Clause 17(a) (i) of the Agreement, is not to be “enforced by the employer but mutually agreed”.^[33] It is submitted, that Section 77(1) (d) of the Promulgation is clear in its application that retirement age shall not be imposed on a worker. From an economic point of view, the Submission states:
    

The Constitution of the Republic of Fiji prohibits unfair discrimination on the ground of age. This in a broader context in our society provides special protection to elderly people. In Fiji people above the age of 65 qualifies (sic) for a monthly pension and special treatment for the usage of public transportation. Such benefits are not extended to people who turn 55 years and it is important for worker in this age to continue to be employed and earn salaries and wages to supplement their living.

60. The Union argues that even if there was a capacity to exercise such a discretion, that where it was exercised unfairly or in an arbitrary matter, it cannot be said to be exercised in accordance with the spirit of the provision contained within the Memorandum of Agreement, or for that matter the later Employment Contract.
    

Conclusions

61. The Tribunal concludes that the Employment Relations Promulgation 2007 and the Human Rights Commission Decree 2009 set out the existing statutory limitations for age discrimination in employment. The laws are now shaped by the framework and principles set out within the 2013 Constitution. The 1997 Constitution provided a two year window for discriminatory provisions to be sun-setted out of existence.
    
62. After that time, outside of where there was a law or administrative action taken under a law, such provisions were rendered unlawful. Clause 17 of the 2001 Memorandum of Agreement was void to the extent that it offended the 1997 Constitution and the Human Rights Commission Act 1999. It was void ab initio.
    
63. In the case of the 2010 Written Contract, the only legislative backdrop that was in place when it came into force was that provided for within Section 77 of the Employment Relations Promulgation 2007 and the Human Rights Commission Decree 2009. There was no Constitution in place, when the contract was made. The Employment Relations Promulgation sought to embrace at the time, the laws as they were reflected within the 1997 Constitution, the Human Rights Commission Act 1999 and the ILO Convention 158. Two years later, the Human Rights Commission Decree 2009, as the later and more specific purpose legislative expression,^[34] clarified the present state of the law and narrowed the scope of when and how the exemption for compulsory retirement should take place. As Table 1 illustrates, the 2013 Constitution, has for all intents and purposes embraced the same language as that contained within the Human Rights Decree.
    
64. The proviso contained within Section 77(1)(d) of the Promulgation allows for compulsory retirement where any written law or employment contract impos(es) a retirement age. The manner as to how the contract imposes the retirement age must be read in a way that is consistent with the Human Rights Commission Decree 2009 and now the 2013 Constitution. It appears more likely that any ‘contractual imposition’ arises as a consequence of an administrative action taken under or imposed by law.
    

Table 1: Current Legal Framework for Fijian Age Discrimination in Employment Law

65. The present state and hierarchy of the law, to the extent that the expression can adequately capture the inconsistencies between statutory provisions, can be represented in Diagram 1.
    

Section 28 Constitution 2013

Section 17 Human Rights Commission Decree 2009

Section 77(1) (d) Employment Relations Promulgation 2007

Diagram 1: Hierarchy of Age Discrimination in Employment Law

66. For that reason, the only way that the contract could be assessed on or around 24 August 2010, was having regard to the combined operational effect of the Employment Relations Promulgation 2007 and the Human Rights Decree 2009. To that end, the 2010 Written Contract where it purported to provide discretion for the Employer to effect compulsory retirement, subject to the laws of Fiji, could not be relied upon. Generally speaking, the laws of Fiji at that time, would have prohibited the exercise of such a discretion. While one may now argue, that if the laws have now changed, then a new way of interpreting that provision can be found, such an approach does not appear to be consistent with the language of the clause, nor what seems to be the intention of the parties at the time.^[36]
    

New Written Contracts that Come Into Force after the Promulgation of the 2013 Constitution

67. With the advent of the 2013 Constitution and its assent on 6 September 2013, a new set of governing principles are now in place. Sections 26(7) of the Constitution recognises that:
    

Treating one person differently from another on any of the grounds prescribed under

subsection (3) is discrimination, unless it can be established that the difference in treatment

is not unfair in the circumstances

68. Section 26(8) of the Constitutions provides that:
    

A law, or an administrative action taken under a law, is not inconsistent with the rights mentioned in this section on the ground that it...

— (b) imposes a retirement age on a person;

69. This consideration is now the new constitutional overlay to Section 77 of the Employment Relations Promulgation 2007 and Section 19 of the Human Rights Commission Decree 2009. It is an issue that will need to be explored by parties who wish to test the question of whether there has been a difference in treatment and whether discrimination based on age, is fair in the circumstances. At the time the 2010 Employment Contract was entered into, there was no constitutional overlay. The right to compulsorily retire within the Termination Clause, remained “subject to the laws of Fiji”. On its face, it would appear that the contractual expression can only be considered meaningful at the time the contract came into effect. Neither party would be capable of otherwise predicting the way in which the laws of the country may change from time to time. In any event, the reliance on Section 26(7) of the Constitution, is not an argument that has been agitated by the Employer. There is no evidence to suggest that the 2013 Constitution was designed to act retrospectively, other than to preserve the force of laws as provided for by Section 173. There is certainly nothing that the parties have raised in submissions that indicate that the Constitution seeks to revive any such provisions, that had either been unlawful or without effect as a consequence of earlier laws.
    
70. For the above reasons, the Tribunal forms the view that any reliance on the 2001 Memorandum of Agreement or the 2010 Written Employment Contract where it provides for the compulsory retirement of the Grievor, is unlawful. Subject to any appeal by the parties, the matter will be relisted for mention and the issuing of further Directions in order that the substantive issues of the grievance may now be determined.
    

Decision

71. It is the decision of this Tribunal that:
    
    • (i) Any dismissal of the Grievor, reliant upon either Clause 17(a)(1) of the 2001 Memorandum of Agreement or the Termination Clause within the Employment Contract dated 24 August 2010, is discriminatory at law, where it compulsorily seeks to terminate the Grievor’s employment, based on the prohibited ground of age.

.

Mr Andrew J See
Resident Magistrate

^[1] Note that this is claimed to be the basis of effecting the termination as per Paragraph 1 of the Employer’s Preliminary Submission. Though it is acknowledged, that there is also a written employment contract between the parties that also seeks to achieve the same general intent.
^[1] See Annexure BSP1 of the Employer’s Preliminary Submission.
^[2] One could almost assume, that the Employer itself no longer thought that it applied.
^[3] That is, Paragraphs (f) to (j) of Section 17(3).

^[4] (Civil Action 0073 of 2004) at [17] to [29].

^[5] Ibidem at [68].
^[6] See Section 166(5) of the Employment Relations Promulgation 2007
^[7] It is almost as if the draftsperson of the Clause had doubts her or himself as to the legitimacy of such a provision.
^[8] See Parliamentary Hansard 22 June 2006 at p576.
^[9] See Section 38(2) of the 1997 Constitution.
^[10] See Parliamentary Hansard of the House of Representatives, 30 November 2017 at p1874.
^[11] See Fiji Human Rights Commission v Suva City Council (Civil Action 0073 of 2004) at [68].
^[12] See Section 9.90 of the Report of the Sector Standing Committee on Social Services on the Employment Relations Bill, 2006. Parliamentary Paper No 49 of 2006 at p128.
^[13] See Section 77(1)(d) of the Promulgation.
^[14] See definition of ‘prohibited ground of discrimination’ at Section 2 of the Decree.
^[15] [2006] FJSC 8; CAV003U.2004S (15 June 2006) at [51].
^[16] [2003] FJCA 60; AAUU0021.2002S (14 November 2003)
^[17] See for example, Dickason v University of Alberta [1992] 2 RCS 1103; McKinney v The University of Guelph [1990]2RCS 1103.
^[18] For an understanding of who may fall within the definition of “public office”, refer to Chapter 6 Part D of the 2013 Constitution. See also the brief analysis of the discussion contained within the decision of Suva City Council at Paragraphs [40] to [47].
^[19] See Paragraph 38 of the Employer’s Preliminary Submissions filed on 10 March 2017.
^[20] See the references to Apprenticeship Contract as set out at Section 36(2) and Section 97(3) of the Promulgation. Note the reference to the Training and Productivity Authority Fiji Act
^[21] It is also difficult to comprehend how that notion of impose would be able to apply in the context of an oral contract.
^[22] See Craig Williamson Pty Ltd v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450 at 452-453.
^[23] See for example, Totalisator Agency Board v Wagner and Cayley [1963] WAR 180 at 183-189; Quazi v Quazi [1980] AC 744 at 809.
^[24] Op cit at [63]
^[25] ER Grievance 1 of 2010 (17 March 2012) at p7.
^[26] [1990] 2 RCS 1103
^[27] [1992] 2 R.C.S 1103
^[28] [1990] 3 R.C.S. 229
^[29] Aside to say in the case of Qantas Airways Limited v Christie 193 CLR 280, that the relevant provision of the then Australian workplace law and that of the Fiji provision in question are different.
^[30] See Section 21 of the Human Rights Decree 2009.
^[31] [1996] VicRp 67; [1996] 2 VR 235 (13 March 1996)
^[32] See Section 2.0 of the Submissions.
^[33] See Paragraph 3.0 of the Workers Preliminary Submissions as filed on 17 February 2017.
^[34] See earlier the discussion drawing on the latin maxim, leges posteriores priores contrarias abrogant.
^[35] There is a further exemption available under Section 26(7) of the Constitution, however for present purposes, that issue is not relevant to the issue under consideration.
^[36] Care must logically be taken in any attempt to construe the terms based on the factual matrix provided and not what may be later claimed was the intention of the parties at the time. (See for example, B and B Constructions (Aust) Pty Ltd v Brian A Cheeseman & Assoc Pty Ltd (1994) 35 NSWLR 227.