chief justice, hon mr anthony gates address 28 feb

8/2/2019 Chief Justice, Hon Mr Anthony Gates Address 28 Feb

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Opening Address by Mr Justice Anthony Gates, Chief Justice

to the Fiji Commerce and Employers Federation Workshop

ERP: Impact Analysis, Employers Perspective

28 February 2012 Holiday Inn Conference Room, Suva

1 March 2012 Tanoa Hotel, Conference Room, Nadi

____________________________________________________

I have no relevant qualifications justifying my making this opening address

before you this morning. I have been all my working life either a barrister in

private practice or a judicial officer.

As for security of tenure I have endured five events of extra-

constitutionality, or in common parlance coups, and been summarily dismissed

twice. The contract of employment upon which I, and I thought my employer

relied upon, happened to be the then Constitution, and in both cases such document

was torn up. Hopefully the Employment Relations Promulgation will bring you as

employers greater comfort.

Anyway I appreciate your kindness in inviting me along to open your

workshop. Your focus on, and study of the ERP, may result in recommendations

from your organisation for reform and amendments. This is a wholly proper

process so that the new law fits Fijis needs.

Speaking of the Royals, King George VI famously said: Were not a

family; were a firm. I am not sure whether that was intended to be a benevolent

remark. Did he mean for instance we are a partnership in the legal sense? Perhaps

not, for no royal that I can think of, thought it necessary ever to study law. We

are the law more likely they might have thought, and the doctrine of the Divine

Right of Kings made such study superfluous at least with earlier kings. Post the


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assassination of the Czars, King Georges uncles and aunts, constitutional

monarchy favoured a more modest approach to workers rights.

People generally mean well when they say to you but of course you are

family. But then if you were a member of Lucretia Borgias family you would

probably want someone else to taste the food first, before you ventured to eat

anything at a relatives house. Families do not always get on well or look out for

each other. Remember the saying God gave us our relatives, thank God we can

choose our friends. In employment relations what is the right concept? Is it

family, partnership, team, committee, regiment or simply the company?

The object of the workshop today is said to be to collate practical but

important information from the industry stakeholders, how the promulgation has

impacted on their respective industry, and to give a first-hand account of their

experiences from managements perspective. The forum will also act as a catalyst

to empower FCEF representatives in the Wages Council, ERAB, and other boards

where FCEF has representation.

With the coming of the world recession which began in 2008 and which

promises to stay around for much longer than the Great Depression, you may feel

we enter a different world from that of the giddy days we enjoyed before. This

will be a world with fewer employment choices. It is likely to be a world with less

risk capital available for new and unproven ventures, less seedling capital. Both

sides of the employment table will be less secure and less confident. In the pre-

1900s capitalists could be confident of maximising their profits if their risk proved

well founded. Wages and benefits costs then were low, inventors were mere

boffins, and taxes on companies were almost non-existent. Carnegie and Nobel

made their money at this time.


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Todays different world will be a place where competition for markets

whether products or tourist destinations and services, as in Fiji, will demand

enhanced quality and higher standards. Pay may not be set to keep up with

inflation. The workforce is already facing reduced market valued, not calculation

based, pensions. Greater contributions from employee and employer alike will be

necessary if pensioners are not to depend on those of working age.

The old world must be modest enough to learn from the new world. You

cannot dismiss the success of the Chinese and Indian economies on the basis of

cheap labour. They had cheap labour 30 years ago and were not successful then.

Why has Greece failed? Not paying taxes, running up credit card or other debts,

and not making sufficient savings from income, are obvious first answers. If the

Chinese will need to save less and spend more, Europe and America are going to

have to do the opposite by way of moderate adjustment.

In employment terms we must ask ourselves, what have been the gains

achieved over the years in modern employment conditions that must not be given

back, that must not be jettisoned in this reduced world?

Conflict in the world often has a similar source to conflict in the work place.

It is caused by a lack of respect. Respect necessarily includes the concept of

understanding. The West is frequently accused of lack of respect for the rest of the

world, be it Russia, the Islamic States, Africa, the developing world, or the new

economic giants of China and India. Similarly corporate management needs to

demonstrate its respect for its employees, their aspirations and beliefs, and for the

parts that each plays in the organisation. Einstein invents, Rothschild finances, the

Managers and Production Engineers devise the factory methodology and manage,

the workers operate the machines and produce the product, support staff support,

the sales staff sell. All play a part. Management must show its respect for each


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one. Part of that respect is that employees should be employed under a fair

contract. Some lawyers feel proud of devising a contract which is strongly in

favour of a large employer, their client. This is foolhardy. A good contract is a

contract in which each side believes it has done quite well. If it is fair, the contract

will not lead to conflict. Being fair to the other contracting party is in the interests

thereby of the supposedly benevolent one. Fair contracts are simply good

business.

A typical group of human beings, even those specially selected as the assault

team was in the film Guns of Navarone, brings together a set of different skills.

They each do not do the same thing, but they bring something individual to the

task in hand. In the Army we had to pull the large slow man over the wall and

through the tunnel, but he was the man who was the ladder that had got all of us

over the wall in the first place. The method is known as team work. In the work

place we do not rely on one Tiger Woods for our success. We depend on each

other as a combination of different weaknesses and strengths.

Mr Warren Buffet is, he says, upbeat about the USA stock market. By that I

assume he includes the US economy as well. Whilst there may be many bumps

ahead, and some collapses and reversals, that may well prove right. The USA and

Europe will recover in time, but will their attitudes and philosophies, and those of

the Harvard Business School continue to hold pre-eminence? It seems that the

shift of focus to the East is irreversible. This will not occur because China holds so

many American dollars and is without debt. The awakening of interest in the East,

the re-awakening of the Great Bear of Russia, of the Muslim States, the interest in

their cultures, religions, and histories will mean the Western model of doing things

will no longer be held sacrosanct. Eastern ideas will impinge on employment

relation matters too and play a part in forging change at the work place. As with

the Arab Spring, and with all change, this will prove unsettling and not


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immediately welcoming. Even Africa will have influence. We have already seen

how small businesses operate almost on the street in African cities. Money

changes hands on the mobile phone, services are delivered swiftly and differently.

Employment practices inevitably are subject to change, and so will ours be.

Culture and religion, we have long recognised in Fiji, must be handled by

employers with great care and tact. It must be recognised this is not an easy area.

It is no good saying I would not have made a fuss, so why is X or Y making a fuss.

In England there was the tussle over whether Sikhs should wear the official bus

conductors hat or whether the turban could be permitted alone. The courts have

taken a strong line against Muslim women giving evidence in court in full purdah

where the face is completely obscured. If you work for an essential or emergency

service can you or should you be rostered for work on your Sabbath?

If we go back to that concept of respect again which carries within it the idea

of understanding, we should arrive at an arrangement which might serve efficiency

as well as tolerance of difference. Not all organisations will do that. I was

interested to listen to a discussion on the overseas service of the BBC over the

weekend in which the management commentators thought we should be

considerate and respectful and for that reason accommodating of special needs.

There was the employee, a strict Hindu, who complained of being misled at

the training workshop into eating a beef sausage. It turned out it was beef not

lamb, and the food label next to the dish had become obscured. A slight

inefficiency led to great offence. Would you think it wise not to offer beef or pork

at the workshop? But what of the interests of those employees who wanted to eat

either pork or beef? How would you tackle it?


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I am inclined to the view that by being careful and showing respect in such

matters we are more likely to have a stable and harmonious workforce. So on

matters of Sunday work, Saturday work, special clothing, safety, and special food

or food to be avoided, we can demonstrate that we wish to respond to the needs of

our employees. Increasingly we do that for our customers. One size never did fit

all. The West needs to learn from the East how to understand the customer and to

provide the service that is required, and not to deliver the one that is often dumped

on the developing world.

A modern manager has a great number of issues to cope with, OHS, Health

Regulations, Biosecurity, safety equipment, and sexual harassment protocols. He

or she will have to bring to bear initiative, enterprise and innovation.

Some work places have begun to resemble a home or a university campus.

The employees appear to drift about with access to a pool, a gym, libraries or a

music centre. Perhaps this suits the creative organisation specially. The

prohibitive cost of such facilities which we might expect in Silicon Valley or at a

firm of still successful management consultants, may mean we will not see the like

in Fiji. That said, some staff amenities ought to be considered. For the overall

wellness of your staff, physical and mental, may become increasingly a modern

management responsibility.

We are familiar with management restrictions on the off duty hours lifestyle

of employees in certain fields. A pilot cannot be drinking alcohol prior to

assuming duty. This is obvious, and is a passenger and plane safety measure. Will

restrictions eventually extend in other directions? If your employee drinks

excessive yaqona at home, and is sleepy and careless at work, will that mean an

employer may insist on a total yaqona ban? Before long one can foresee Health

precautions entering into the place of employment. Foods may be prohibited as


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unhealthy for being too sweet, too fatty or too salty. Similarly manufacturers may

not be permitted to manufacture such foods. Employers may have to ensure a

healthy environment in which their employees are to work and in which

obligations arise concerning physical fitness and diet.

If one can see this coming, there is something to be said for an employer to

start planning how the company would cope with suitable measures. But the

starting point which I return to is the one of respect for ones employees and

concern for their realistic welfare in the world in which we now live.

I am delighted and privileged to declare that the FCEF workshop for today is

now open.

27 February 2012 A.H.C.T. Gates

Chief Justice

cd,27February,2012

www.judiciary.gov.fj

chief justice, hon mr anthony gates address 28 feb

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