Opinion:

The row over a plan to introduce retirement age at the University of Fiji is a peculiar one because of the nature of the industry.

Academic institutions like universities are unique because age is not often seen as an issue.

In fact, the older and more experienced the academics become, the more they are respected for their wisdom and knowledge that cannot be replaced overnight.

At UniFiji, most in this group (professors and doctorate holders) will lose their jobs if the proposed retirement age of 65 years is implemented.

There is a counter-argument that bright and upcoming academics can take over without the institution losing much of the intellectual firepower.

The other issue is a question of law.

Can the university go ahead and make the change as long as it follows proper processes including taking the matter up to the Senate?

It would have to take into considerations the Employment Relations Act and other relevant legislation and ensure there is no breach of the provisions of the 2013 Constitutions on the basis of discrimination against age.

There is a school of thought that this can be overcome because the law can make exceptions on the grounds that the university has its own unique needs.

Chang sees the need for change

The new Vice-Chancellor, Professor Sushila Chang, from Malaysia, has come into UniFiji and sees the need for change. It is understood that she believes it can be done without having to jump over legal hurdles.

But the opposing school of thought makes the point that culturally, in Fiji, older people are respected for their wisdom and experience. Many believe that since elders in Fijian society have contributed to society in so many different ways, the knowledge that they possess should be imparted to the next generation for whatever use the next generation would like to make of it.

In recognition of the respect that is accorded to the elders in Fiji and development of human rights protections internationally, the Constitution of 1997 made it unconstitutional for the state to allow discrimination on the grounds of age.

The relevant provision was section 25 Equality, which stated that a ‘person must not be unfairly discriminated against, directly or indirectly, on the ground of his or her …age’, among other things.

The only exception was if there was a law which ‘imposes a retirement age on a person who is the holder of a public office’.

Section 26 (3) of Fiji’s 2013 Constitution similarly protects people from being discriminated against on the ground of age but extends the exception of the previous  ‘holder of a public office’  to ‘a person’.

The reality thus is that a person cannot be unfairly discriminated against, directly or indirectly, on the ground of age in Fiji unless a law or an administrative action taken under a law allows a retirement age to be imposed. This means that an actual law has to be in place to impose a retirement age on a person before it will be permitted.

Laws on retirement age

In Fiji there are a number of laws in place which allows a retirement age to be imposed. The most important one, since it appears in the Constitution itself, is the retirement age of judges- by section 110 (2) (a) and (b) the Chief Justice’s retirement age is 75 and the High Court Judges’ retirement age is 70. Thus a Judge or Chief Justice cannot seek constitutional protection from age discrimination if they wish to continue working beyond their retirement age as prescribed by law.

In a very important decision delivered by Justice Coventry in 2006 (The Proceedings Commissioner v the Suva City Council), a SCC Collective Agreement clause on compulsory retirement at a certain age was expunged by the Judge. He said that in Fiji the imposition of a retirement age without an actual law being in place for the relevant category of workers was unlawful. Justice Coventry also said that international law was similarly moving in the same direction to protect people from being forcefully retired on the ground of age.

The Fijian law and cases support the idea that, culturally, age is no barrier to performance at work or in the community. Our elders have as much right to be productive, earn a living and pay their taxes as young people.

Unfair discrimination on the basis of any personal circumstances or characteristics is already unlawful in Fiji unless there is a specific law allowing it for any of the grounds protected by section 26 of the Constitution, including gender identity, race, religion, culture and social origin, among others. Age is included in the list.

So the anti-retirement lobby contend that the university cannot unilaterally impose a retirement age. It requires Parliament to amend the University of Fiji Act. There could be a legal challenge if the university goes ahead.

At the University of the South Pacific, the retirement age of 65 was introduced many years go. The employment law has undergone a lot of changes since then.

Some of those academics who were retired because of it were rehired on short term contracts as the need arose.

In fact it has been suggested that yearly contracts might be the way to go. Renewal of contract would be based on performance and health. They can be accorded the emeritus (retired professor etc) status.

A lot of activities are expected in the coming weeks over this issue.

Feedback:  nemani.delaibatiki@fijisun.com.fj