Vax rule dilemma – Fiji Law society raises concern over PM’s directive


The manner in which the Fijian Government has enforced directives on people to get vaccinated for COVID-19 is concerning.

Fiji Law Society president William Wylie Clarke says there are better ways for Government to address the issue.

He was responding to a directive from Prime Minister Voreqe Bainimarama that people could lose their jobs if they failed to vaccinate to get vaccinated.

“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,” Clarke said in response.

Clarke said Government should consider the legal implications in its approach to get people vaccinated for COVID-19.

Bainimarama said people in the private and public sectors could lose their jobs if they did not vaccinate.

He said it was now the policy of the Government and enforced through law.

“Like many others, the Society appreciates and understands the Government’s concern for workplace safety.

“We understand and support the need to get to the point where enough people are vaccinated that Fiji can return to a more normal state of affairs.

“But we are of the view that a different approach is needed, there are better ways to achieve these aims.

“Health is important, but so are people’s legal rights.

“Those legal rights ensure we remain a free and democratic society,” said Clarke

He said unfair discrimination was prohibited under the Constitution.

“In other words, it is possible to discriminate if the discrimination is fair. But what is fair depends on the particular case.

“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.

“It may be fair to protect the health of all people in a workplace and to require all workers there to be vaccinated.

“However, it may not be fair in other circumstances. For example, it would not be fair if that workplace is a supermarket, and the same rules do not apply to customers.

“The Regulations prohibit an unvaccinated supermarket worker from entering the premises, but does not prevent an unvaccinated customer from doing the same.

“In such a case, the workers could also be exposed to unvaccinated customers anyway and the regulation will not serve its purpose. In such a case, a court is unlikely to consider this discrimination to be fair.”

He said they are also concerned about the validity of regulations allowing an employer to dismiss an employee who has not been vaccinated by prescribed dates.

“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,” said Clake.