While states have the primary obligation of protecting, preserving, and promoting human rights, there is increasing recognition that the state is but a partial and an incipient fragment in the entire kaleidoscope of human rights.

The existential threat of climate change as well as the advent of the global pandemic and its attendant human rights challenges attest to the fact that businesses too must take the responsibility of preventing human rights violations and providing remedy to victims of human rights violations.

Massive job loses, reduced hours and salary cuts, environmental catastrophe, displacement of communities and the decimation of their cultural ways of living and being, cruel, degrading and inhumane working conditions and the exploitation of the most vulnerable including women and children, the suspension of the enjoyment of fundamental human rights including the right to development and social and economic rights underscores the centrality of the often times vexed relations between business and human rights.

Respect for human rights and human dignity must be at the core of the formulation of a new kind of social contract between states and citizens and strangers that cannot afford to extricate businesses from this calculus as we harmonize economies and ecologies more so now in the context of COVID-19 which has had a disproportionate impact on a repertoire of rights with little regard for the fault lines we have conveniently created between civil and political rights and social and economic and cultural rights to suit our own ideological dispositions and political proclivities.

The UN Guiding Principles, which are a non-binding set of guidelines for businesses, provides a significant framework for the state, business enterprises and national human rights institutions and CSOs to constructively engage in protecting, preserving, promoting human rights.

The UN Guidelines underscore:

– The State duty to protect human rights against abuse by third parties, including business, through appropriate policies, legislation, regulations, and adjudication

– The corporate responsibility to respect human rights, meaning to act with due diligence to avoid infringing on the rights of others and address adverse impacts with which they are involved

– The need for greater access to effective remedy, both judicial and non-judicial, for victims of business-related human rights abuse.

It is inextricably woven into the fabric of the 2030 Agenda for Sustainable Development aimed at realizing human rights for all in particular the economic, social and cultural rights including rights focused on health, education, food, shelter, women and children.

Goal 17, in particular, promotes global partnerships for sustainable development, including public-private partnerships.

Paragraph 67 of the 2030 Agenda for Sustainable Development states: “Private business activity, investment and innovation are major drivers of productivity, inclusive economic growth and job creation. We acknowledge the diversity of the private sector, ranging from micro-enterprises to cooperatives to multinationals.

We call on all businesses to apply their creativity and innovation to solving sustainable development challenges.

We will foster a dynamic and well-functioning business sector, while protecting labour rights and environmental and health standards in accordance with relevant international standards and agreements and other on-going initiatives in this regard, such as the Guiding Principles on Business and Human Rights and the labour standards of ILO, the Convention on the Rights of the Child and key multilateral environmental agreements, for parties to those agreements.”

The UN Guiding Principles implore on the need for businesses to be responsible and show commitment to upholding principles of non-discrimination by having policies and internal mechanisms in place to deal with human rights violations.

Principle 16 of the Guiding Principles calls for a policy commitment from business enterprises as the basis for embedding their responsibility to respect human rights and equally expresses their commitment to meet this responsibility through a statement of policy that:

(a) Is approved at the most senior level of the business enterprise;

(b) Is informed by relevant internal and/or external expertise;

(c) Stipulates the enterprise’s human rights expectations of personnel, business partners and other parties directly linked to its operations, products or services;

(d) Is publicly available and communicated internally and externally to all personnel, business partners and other relevant parties;

(e) Is reflected in operational policies and procedures necessary to embed it throughout the business enterprise.

This is extremely critical precisely because, as the Human Rights and Anti-Discrimination Commission notes, employees who have sought advice or lodged their complaints relating to labour rights are not aware of any such policy statements which address human rights risks such as unfair treatment and discrimination based on the grounds of one’s race, religion, gender, sexual orientation and expression, disability, pregnancy, and age.

Human dignity and care should be reflected in policies and operational mechanisms implemented by businesses. Businesses are obligated to ensure that their HR policies reflect the safeguards that exist in our laws such as:

– Section 26 (3) of the Fijian Constitution on the principles of non-discrimination

– Section (6) (2) of the Employment Relations Act 2007 which provides that “no person shall discriminate against any worker or prospective worker on the grounds of ethnicity, colour, gender, religion, political opinion, national extraction, sexual orientation, age, social origin, marital status, family responsibilities, state of health including real or perceived HIV status, trade union membership or activity, or disability in respect of recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment relationship”.

– Section 19 (1) of the Human Rights and Anti-Discrimination Commission Act 2009 which expressly provides that “It is unfair discrimination for a person, while involved in any of the areas set out in subsection (3), directly or indirectly to differentiate adversely against or harass any other person by reason of a prohibited ground of discrimination.

– National Harassment Policy

– National Gender Policy

– ILO Convention on Violence and Harassment in the Workplace

– International Convention on the Protection of the rights of All Migrant Workers and Members of their Families

– Article 6 of the International Covenant on Economic, Social and Cultural Rights on polices and training prgrammes to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.

International Covenant On Civil And Political Rights
The UN Guiding Principles also implore on the importance of businesses carrying out human rights due diligence in terms of assessing actual and potential human rights impacts.

Principle 17 (c) expressly provides that in order to identify, prevent, mitigate and account for how they address their adverse human rights impacts, business enterprises should carry out human rights due diligence.

The process should include assessing actual and potential human rights impacts, integrating and acting upon the findings, tracking responses, and communicating how impacts are addressed. Human rights due diligence should be ongoing, recognizing that the human rights risks may change over time as the business enterprise’s operations and operating context evolve.

The COVID-19 pandemic has brought this into sharp relief.

COVID-19, Force Majure, Mandatory Vaccination
The massive loss of jobs and livelihood during the COVID19 pandemic is an important case in point.

It raises fundamental questions about the nature of our employment contracts in the context of force majure (Act of God).

Then of course, we’ve all had to grapple with the issue of mandatory vaccination.

I am fully cognizant of the issue of subjudice as there are matters before our courts and will therefore limit my remarks to a few critical issues from a human rights perspective in relation to our laws.

Ashwin Raj is the Director for Human Rights and Anti-Discrimination Commission. The following is his statement during the BSP 2021 Fiji Human Resources Institute Annual Convention on November 26-27, 2021. He spoke on the topic: Businesses and Human Rights Obligations.

Constitutional Safeguards Against Forced Vaccination
It is imperative to note that in consonance with the constitutional safeguard provided under section 11 (3), the State has not coerced anyone to be vaccinated.

Section 11 (3) of the Fijian constitution expressly provides that “Every person has the right to freedom from scientific or medical treatment or procedures without an order of the court or without his or her informed consent, or if he or she is incapable of giving informed consent, without the informed consent of a lawful guardian”.

The right to freedom and security of the person equally includes the right not to be subjected to forced medical procedures without ones informed consent.

It must be noted that section 11 is a non-derogable right even in times of national emergency and therefore immune to the exceptions set out under section 6(5) of the Fijian Constitution.

This right, guaranteed under section 11 is once again expressly protected under section 43 (1) (a) of the Fijian Constitution on the limitation of rights under states of emergency.

Can Employers Make Vaccination A Pre-condition For Employment?
The Commission has received complaints and concerns about whether employers can make vaccination mandatory.

Some workers have expressed grave concern about being compelled by their employers to get vaccinated as a new condition of employment.

These employees believe that they must be afforded the right to make an informed choice rather than being compelled to get inoculated, acting under duress because of the fear of losing their jobs and imminence of unfair dismissals if they decide not to get jabbed.

It is imperative to note that the issue, however, is far more complex than employers coercing employees.

Some employees, who have had their first dose of vaccination, have also contacted the Commission expressing concerns about their colleagues who have made a conscious choice not to get vaccinated and the health and safety risks that choice invariably poses not only for them in their immediate workplace environment but their families.

They raised questions about their ‘right to fair employment practices, proper working conditions and to work in a safe and healthy environment’.

Employers, on the other hand, have also informed the Commission that they have an obligation to ensure a safe and healthy workplace environment and that it is necessary to have all its employees vaccinated to effectively curb the spread of the pandemic which has already halted economic productivity and cost jobs and livelihoods.

Employers have implored that they are justified in calling for mandatory vaccination for employees in certain workplaces such as factories and supermarkets that house a large number of workers, those that work with vulnerable groups such as children, the elderly, persons with disabilities and those with other underlying health conditions, high risk businesses and those working in medical facilities.

In the interest of the health and safety of the entire workforce, some employers have argued, that every worker must be vaccinated as a new condition of employment.

Any consideration about mandatory vaccination as a precondition for employment must take cognisance of our existing laws in relation to the constitutional safeguards against freedom from cruel, degrading and inhuman treatment which includes the right to be free from forced medical treatment, rights and exceptions in relation to employment matters including the obligations of employers and employees in ensuring health and safety as provided under the ancillary legislations such as the Health and Safety at Work Act and the Employment Relations Act as well as consider the evolving jurisprudential developments that weigh the interests of the individual against that of the community and call for sanctions that are lawful, proportionate and necessary.

Legally, vaccination would be considered as a medical treatment and under section 11 (3) of the Fijian Constitution, this is predicated on informed consent.

This does not however, preclude the possibility of an employer making proof of vaccination as a condition of employment of new employees.

However, the employer must ensure that these actions do not give effect to discrimination on any of the prohibited grounds prescribed under section 26 (3) of the Fijian Constitution and act in consonance with the strong and salutary constitutional safeguards under section 24 protecting the right to privacy.

As the crisis worsens, this will invariably require changes to our laws. Furthermore, while guaranteeing the right to fair employment practices, including humane treatment and proper working conditions under section 20(1), the Fijian Constitution also places a limitation to this right under section 20(5) (a) and (b) on the grounds of public health and for the purposes of protecting the rights and freedoms of others.

Consideration must be given to whether an employee not being vaccination genuinely creates a health and safety risk that the employer cannot reasonably accommodate so that vaccination is not used as a tool for reprisal and recrimination for other pre-existing employment relations issues.

To justify such a view will require an increase in risk, based on new cases of community transmissions and a case-by-case assessment taken in each instance.

Duties Of Rhe employers to their workers under the Health and Safety at Work Act
Section 9 (1) of the Health and Safety at Work Act expressly provides that “every employer shall ensure the health and safety at work of all his or her workers”.

Section 9 (2) (e) of the Act further places an important obligation on employers “to provide and maintain a working environment for his or her workers that is safe and without risks to health and adequate as regards facilities for their welfare at work”.

It is imperative to note section 9 (2) (f) of the Health and Safety at Work Act also obligates employers ‘to develop, in consultation with the workers of the employer, and with such other persons as the employer considers appropriate, a policy, relating to health and safety at work, that will (i) enable effective cooperation between employers and the workers in promoting and developing measures to ensure the workers’ health and safety at work and (ii) provide adequate mechanisms for reviewing the effectiveness of the measures or the redesigning of the said policy whenever appropriate”. Section 10 of the Act also prescribes the duties of employers and self -employed persons to non-workers in ensuring that the latter are not exposed to risks to their health and safety arising from the conduct of the formers undertaking while they are at his or her workplace.

Workers Also Owe A Duty Of Care Under The Health And Safety At Work Act
Section 13 (1) of the Act places an important obligation on workers at all times while at work to take all reasonable care not to take any action that creates a risk, or increases an existing risk to the health or safety of any worker including himself or herself or other persons (whether they are workers or not) at his or her workplace as well as in respect of any duty or obligation imposed on the worker’s employer or any other person under the Act to cooperate with the employer, or any other person, to the extent necessary to the employer or other person to fulfil that duty or obligation.

Duty of Employer To Provide Work Under Employment Relations Act
Section 24 (1) of the Act provides that an employer must, unless the worker has broken his or her contract of service or the contract is frustrated or its performance prevented by an ‘act of God’, which includes a pandemic declared by the World Health Organization, provide the worker with work in accordance with the contract during the period for which the contract is binding on a number of days equal to the number of working days expressly or impliedly provided for in the contract.

Employers need to strike the right balanced based on the nature of the industry, whether they are dealing with vulnerable groups, and their legal obligations under the existing employment contracts.

In considering whether to implement a mandatory vaccination policy at workplace, the employers must take into account the following factors:

– the number of vulnerable employees in the workplace

– an assessment of the role’s exposure risk to the virus and the employees’ exposure to the public

– is it a closed building/space or is there adequate ventilation?

– can the workers practice physical distancing in the available space or office setting?

– do workers have personal protective equipment?

– has the employer been flexible in giving workers time off to get vaccinated?

– Do the employees have access accurate and timely information about the vaccination?

– existing work contracts and lawful grounds for modification to include new conditions of employment taking full cognisance of sections 9 ,10 and 13 of the Health and Safety at Work Act, and sections 24, 33, 41, 75, 77, 84, and 85 of the Employment Relations Act

– draft guidelines on vaccine policy addressing the specific risks, how it will be managed, why vaccination is required in consultation with workers to balance rights and responsibilities.

– has the employer considered other control measures as an alternative to vaccination?

The position taken by WHO on vaccination is that ‘vaccines are a critical tool in the battle against COVID-19, and getting vaccinated is one of the best ways to protect yourself and others from COVID-19’.

They have arrived at this conclusion based on science.

It is critical that employers take a sensitive approach to this issue.

The employer must consider all reasonable alternatives to dismissal such as allowing the employee to work from home or allocate alternative duties for a specified period and make an assessment based on whether the employee works in a high-risk area which poses a real and imminent health and safety risk.

It is crucial for everyone to understand that rights come with responsibilities.

Every worker has a right to a safe and healthy workplace and the employer is legally obliged to ensure that workers have a safe and healthy work environment.

Therefore, the Commission encourages all employers and employees to consider the greater public interest of keeping our workplaces safe and ultimately our homes and our country safe and healthy.

We are in a precarious situation, one which demands pragmatic solutions.

We need to consider the health of the nation as a whole.

The State has an important obligation under the Fijian Constitution to uphold the right to health and the right to economic participation and employers and workers have a critical role to play in ensuring that we find the right balance.

Migrant workers, sexual harassment, maternity leave
We also need to deal with our prevailing prejudices about who is a “deserving” rights bearing subject worthy of our interventions.

We think that rights are locked within nation-states and is the preserve of citizens and not strangers.

We valorize the mobility of labour and capital across the nation-state circuit, but we think that rights only belong to citizens within the nation-state construct.

So who stands for people that are exploited by our businesses precisely because of their vulnerability as non-citizens?

The Commission has since 2016 assisted workers from Philippines, India and Bangladesh in the construction, shipping, industrial, and farming sector.

We have investigated serious allegations of:

– bonded labour and human trafficking including the confiscation of passports

– cruel, degrading and inhumane treatment including verbal and physical abuse, deprivation of food, denial of medical treatment

– limitations to freedom of movement and forced to live in conditions that are not consistent with human dignity

– deprivation of the right to religion, being subjected to racist and xenophobic vitriol

– breach of contractual obligations under the ERA- harsh and repressive working conditions, being paid far less than what was promised, working much longer hours than that stipulated in the contract without adequate compensation, told to pay their air tickets if they wish to return to their home countries, made to sign documents that they do not understand and exploitation of their lack of knowledge of their visa status by being told that they will be deported if they raise issues about their work conditions.

As you know, the Commission has also dealt with serious allegations of sexual harassment in the private sector and discrimination on prohibited grounds such as refusal to pay maternity leave and victims of domestic violence who receive little or no support in their workplace.

The common denominator in all of this is the unequal power differentials between the alleged perpetrators and those who are being subjected to abuse and exploitation.

Some businesses have shown blatant disregard for respect for human rights when dealing with LGBTI persons or persons with disabilities as well as interdiction of the right to private and family life.

What can we do?
A compelling case needs to be made about the economic costs of human rights violations, i.e. human rights violations are bad for business because it exposes business enterprises to reputational risks and possibility of litigation proceedings.

This would create the conditions of possibility for the development of internal accountability systems within businesses to monitor human rights abuses by making a policy commitment to respect human rights, develop a system of identifying, preventing and mitigating human rights abuses including a recourse to remedies that uphold the following principles in consonance with the criteria set out in the UN Guidelines for non-judicial grievance mechanisms:

(a) legitimate

(b) accessible

(c) predictable

(d) equitable

(e) transparent

(f) rights compatible

(g) encourages continuous learning to strengthen mechanisms for prevention of future human rights violations.

This must be supplemented by robust human rights education and advocacy with the key state agencies, business sector, judiciary and the wider public.

The responsibility to respect human rights is distinct from social investment or philanthropic activities and abuse of corporate social responsibility to exonerate business enterprises from any complicity in gross violations of human rights.

You cannot condone sexual harassment or exploit someone’s vulnerability and quickly donate to an NGO or a school and somehow you have exonerated yourself as a business. It is not right, and it must be called out.

We must continue to constructively engage with the state, businesses and the wider community including potentially affected and other relevant stakeholders to assess human rights impact (including environment and social impact assessment) of specific business ventures.

We must work with the state, statutory bodies and the business sector in developing a checklist of minimum standards required by all businesses regardless of their size, sector, operational context, ownership and structure.

These should include the provision of written contracts, labour requirements and protections clearly articulated and that all workers must receive copies of these contracts. Contracts must be explained in a language that the worker understands.

Given that the UN Guidelines encourage states to provide effective and appropriate non-judicial grievance mechanisms, alongside judicial mechanisms, as part of a comprehensive state-based system for the remedy of business-related human rights abuse, the national human rights institution must use its mandate to carry out independent investigations and create an empowering space for victims of human rights violations to come forward.

We can build back better, and we must build back better. Our current predicament offers an opportunity to glean critical insights into how we can build a much more just, fairer, equitable and sustainable world.

For that to happen, we must also look beyond the framework of business and human rights into fundamental questions about wealth redistribution and structural inequality.

A new social contract.

Feedback: maraia.vula@fijisun.com.fj