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Papua New Guinea Consolidated Legislation |
Chapter 373.
Employment Act 1978.
Certified on: / /20 .
INDEPENDENT STATE OF PAPUA NEW GUINEA.
Chapter 373.
Employment Act 1978.
ARRANGEMENT OF SECTIONS.
Subdivision A – The Contract.
Subdivision B – Approval and Attestation.
Subdivision C – Transfer of Contract.
Subdivision D – Death of Employee.
INDEPENDENT STATE OF PAPUA NEW GUINEA.
AN ACT
entitled
Employment Act 1978,
Being an Act relating to the employment of certain persons.
PART I. – PRELIMINARY.
In this Act, unless the contrary intention appears–
“accompanying dependants”, in relation to a married employee means his wife and children (if any) under 16 years of age who, with the consent of the employer–
(a) reside with the employee in housing provided by the employer; or
(b) reside with the employee at or near the place of employment in housing not provided by the employer, if the place of employment is more than 25 km from their ordinary place of residence;
“attested contract” means a contract made under Section 19(b);
“authorized officer” means a labour officer, medical practitioner, or medical assistant appointed under Section 8;
“books” includes registers, records or documents prescribed under this Act;
“building and premises” includes any land, building, camp, wharf, vessel, vehicle, place, or hospital or dispensary not being a State hospital or dispensary;
“the commencement date” means 1 January 1981, being the date on which the Employment Act 1978 came into force;
“contract of service” means any agreement, whether oral or in writing, express or implied, by which one person agrees to employ another person as an employee and that other person agrees to serve his employer as an employee;
“deferred wages” means that part (if any) of the wages of an employee employed under an attested contract that, by agreement between the employer and employee, are held by the employer under Section 88(1)(e);
“employee” means a person serving another person under a contract of service and includes a prospective employee;
“employer” means a person who employs another person under a contract of service and includes a prospective employer;
“employment agent” means a person who acts as an intermediary for the purpose of obtaining employment for an employee or supplying an employee for an employer whether or not he charges a fee, a periodical contribution or other charge or derives, directly or indirectly, a pecuniary or other material advantage from the employer, but does not include a newspaper or other publication unless it is published wholly or mainly for the purpose of acting as intermediary between employers and employees;
“family”, in relation to an employee, means the spouse and unmarried children (if any) under the age of 16 years of the employee;
“heavy labour” means employment–
(a) as a quarryman; or
(b) as a diver; or
(c) as a fisher for pearl shell or any sea products other than fish; or
(d) in the loading or unloading of any ship’s cargo other than cargo that is–
(i) the produce of; or
(ii) intended for use at,
a plantation where the employee is employed; or
(e) in mining or carrying; or
(f) in pit-sawing, logging or sawing; or
(g) in any kind of work declared to be heavy labour under Section 5,
other than any employment referred to in this definition, that, in the circumstances of any particular case, a labour officer certifies in writing not to be heavy labour;
“industrial undertaking” includes–
(a) mines, quarries and other works for the extraction of minerals and other materials from the earth; and
(b) industries where goods are manufactured, altered, cleaned, repaired, ornamented, finished, adapted for sale, broken up or demolished, or where goods are transformed, including ship-building, and the transformation and transmission of electricity and other motive power; and
(c) construction, reconstruction, maintenance, repair, alteration or demolition of any building, railway, harbour, dock, pier, canal, inland waterway, road, tunnel, bridge, viaduct, sewer, drain, well, telegraphic or telephonic installation, electrical undertaking, gas-work, water-work or other work of construction, or preparation for or laying foundations of any work or structure; and
(d) transport of passengers or goods by road, rail or inland waterway, including the handling of goods at docks, quays, wharves and warehouses, but not including transport by land;
“labour officer” means a labour officer appointed under Section 8;
“medical aid” means a person enrolled as a medical aid under the Medical Registration Act 1980;
“medical assistant” means a person enrolled as a medical assistant under the Medical Registration Act 1980;
“piece-rate employee” means an employee employed under a contract for piece-work;
“place of employment” means any place or building, or building and premises on or in which the employee is employed;
“place or building” includes any land, building, camp, wharf, vessel, vehicle, place, or hospital or dispensary not being a State hospital or dispensary;
“public holiday” means a day appointed to be a public holiday under the Public Holidays Act 1953;
“qualified tradesman” “qualified tradesman” means a tradesman who has successfully served an apprenticeship under the Apprenticeship and Trade Testing Act 1986;
“recruiting” includes all operations undertaken with the object of obtaining or supplying the labour of persons who do not on their own initiative offer their services at–
(a) the place of employment; or
(b) a labour office or employment office established by the State; or
(c) a licensed employment agency;
“registered award” means an award, and includes a determination by a Minimum Wages Board, which has been–
(a) registered by the Registrar; and
(b) notified in the National Gazette,
in accordance with the Industrial Relations Act 1962;
“the Secretary” means the Departmental Head of the Department responsible for labour and employment matters;
“this Act” includes the regulations;
“worker-recruiter” means a person employed by the undertaking for which he recruits labour and who is commissioned in writing by the employer to recruit other employees and who does not receive any remuneration from the undertaking other than a regular wage as an employee.
This Act binds the State and every authority and instrumentality of the State.
(1) Except where it is specifically provided otherwise, this Act does not apply to or in relation to the employment of a person–
(a) by the State in carrying in the vicinity of his village from day to day; or
(b) under any other law in force in the country.
(2) The engagement of a pupil of a school in part-time work necessary for, or incidental to, the cleaning of the school or its grounds, or, if the pupil is a boarder at the school, for the growing of food for the sustenance of teachers and pupils of the school shall not, for the purposes of this Act, be deemed to be employment, and this Act does not apply to or in relation to that engagement.
The Minister may, by notice in the National Gazette, exempt from all or any of the provisions of this Act–
(a) any person whose wages exceed the prescribed amount; or
(b) any–
(i) person or class of persons; or
(ii) occupation, trade or industry,
specified in the notice.
The Minister may, by notice in the National Gazette, declare any kind of work to be heavy labour for the purposes of this Act.
This Act does not–
(a) relieve an employer of any duty or liability imposed on him by any other law in force in Papua New Guinea, or limit or restrict any powers given to any officer by any other law in force in Papua New Guinea; or
(b) affect the operation of any registered award in force immediately before the commencement date.
PART II. – ADMINISTRATION.
The Secretary may, by instrument under his hand, delegate to any officer all or any of his powers and functions under this Act (except this power of delegation).
(1) The Secretary may, by notice in the National Gazette, appoint–
(a) officers to be labour officers; and
(b) with the approval of the Secretary for Health–
(i) medical practitioners registered under the Medical Registration Act 1980 to be medical officers; and
(ii) medical aids and medical assistants and health extension officers of the Public Service to be medical assistants.
(2) Every labour officer, medical officer and medical assistant shall be furnished with a certificate of appointment signed by the Secretary.
PART III. – CONTRACTS OF EMPLOYMENT.
Division 1.
Casual Workers.
Subject to this Act a person may be employed as a casual worker.
(1) Subject to Subsection (2), where a casual worker is employed by the same employer for more than six days in any one month he shall be deemed to be an oral contract employee under Division 3.
(2) Subsection (1) does not apply to a casual worker employed under the provisions of a registered award covering a specific type of occupation.
Division 2.
General.
(1) A person who–
(a) employs any person; or
(b) accepts or remains in employment,
otherwise than in accordance with this Act, is guilty of an offence.
Penalty: A fine not exceeding K300.00.
(2) It is a defence to a charge for an offence against Subsection (1) if the defendant proves that he believed on reasonable grounds that the employment or proposed employment was not contrary to this Act.
(3) Where a contract is made outside the country, relating to employment within the country, this Act applies to that contract as if it had been made in the country.
(4) Every term or condition of a contract of service, whether made before or after the commencement date, which provides a condition of employment that is less favourable to an employee than any of the conditions of employment prescribed by this Act is void to the extent that it is less favourable.
Subject to Section 30, a contract of service is not binding on all or any of the members of the family of an employee.
Where a contract of service between an employer and an employee is terminated, any contract of service between the employer and the spouse of the employee shall terminate unless within 48 hours after the giving of the notice of termination of contract to the employee, the spouse notifies the employer that his or her contract of service is, if the employer so agrees, to continue.
Where an employer, an employment agent or worker-recruiter employs or seeks to employ a person he shall inform that person of the terms and conditions of the employment, including–
(a) the name of the employer; and
(b) the name of the place or places of employment at or on which he is to be or may be employed; and
(c) the location of the place or places of employment; and
(d) the occupation in which he is to be employed; and
(e) the nature of work involved in the occupation under Paragraph (d); and
(f) the period of the employment; and
(g) the total wage to be paid and the deductions (if any) to be made; and
(h) the manner of paying wages including the arrangements proposed in respect of refundable deductions (if any).
Division 3.
Oral Contracts.
(1) Where an employer and an employee enter into an oral contract of service, the employer shall, at the time of the engagement, make a written record of the terms and conditions of the contract.
(2) Where a dispute arises as to the terms and conditions of an oral contract of service, and the employer fails to produce a record under Subsection (1), a statement by the employee as to the terms and conditions of the contract shall be conclusive evidence of those terms and conditions unless the employer satisfies the Secretary or an Arbitration Tribunal established under the Industrial Relations Act 1962 to the contrary.
Notwithstanding any agreement to the contrary, an oral contract of service shall be deemed to be for the period by reference to which wages are paid.
Each party to an oral contract of service that expires under Section 16 shall, immediately on the expiration of the contract, be deemed to have entered into a new oral contract of service for a further period of the same duration and subject to the same terms and conditions as the expired contract unless–
(a) notice to terminate the employment under Section 34 has previously been given and–
(i) the period of notice has expired; or
(ii) payment of wages instead of notice has been made; or
(b) the contract has been summarily terminated by either party for lawful cause.
Division 4.
Written Contracts.
Subdivision A. – The Contract.
Notwithstanding any other law but subject to this Act, any person 16 years of age or over may enter into a written contract of service.
A written contract of service is of no force or effect unless and until–
(a) in the case of a literate employee–
(i) he has signed the instrument of agreement and has certified under his hand on the agreement that he has read, understood and agreed to abide by the terms and conditions endorsed on the agreement; and
(ii) the employer has endorsed on the agreement a note that he believes and is satisfied that–
(A) the employee is literate; and
(B) before signing the agreement, the employee read and understood it; and
(b) in the case of an illiterate employee, he has–
(i) signed; or
(ii) affixed his mark or an impression of his thumb on,
the instrument of agreement in the presence of a labour officer and the labour officer certifies that Section 23 has been complied with.
(1) An employer who is a party to a contract of service shall be responsible for having the contract drawn up.
(2) A contract of service made under Section 19(a), shall be in duplicate and–
(a) a copy shall be retained by the employer at the place of employment; and
(b) a copy shall be handed to the employee.
(3) An attested contract shall be in quadruplicate and–
(a) a copy shall be retained by the employer at the place of employment; and
(b) a copy shall be handed to the employee; and
(c) two copies shall be handed to a labour officer for retention or distribution as prescribed.
(1) A contract of service to which this Part applies shall contain the particulars specified in Section 14.
(2) An attested contract of service shall be in the prescribed form.
(1) A contract of service made under Section 19(a), may be for a specified or for an unspecified period.
(2) Where an employee under a contract of service made under Section 19(a) is permitted by an employer to continue his employment after the expiry of the period specified in the contract of service, the contract shall be deemed to be extended, on the same terms and conditions, for an unspecified period.
(3) The period of a contract of service shall commence–
(a) in the case of a contract made under Section 19(a)–on the date on which it is signed by the employee or, if another date is specified in the contract, on that date; or
(b) in the case of an attested contract–on the date that it is attested by a labour officer under Section 23,
but in no case shall it be deemed to have commenced on a date later than the date the employee commenced duty.
(4) Subject to this Act, the period of an attested contract shall not exceed–
(a) in the case of an employee who is not accompanied by any of his dependants–two years; and
(b) in the case of an employee who is accompanied by all or any of his dependants–three years.
(5) Where an employee under an attested contract enters into a contract for a period less than the maximum specified in Subsection (4), he may, at the expiration of the contract enter into a further attested contract with the same employer for a period that, when added to the period of the original contract, does not exceed the maximum period specified in that subsection.
Subdivision B. – Approval and Attestation.
Before approving and attesting a contract of service to which Section 19(b) applies, the labour officer shall satisfy himself that–
(a) the employee has freely consented to enter into the contract; and
(b) the employee’s consent is not due to misinterpretation or mistake; and
(c) the employee understands the terms and conditions of the contract, and his rights and duties under it; and
(d) the employee is not bound by any previous contract; and
(e) the terms of the contract are in accordance with this Act; and
(f) the provisions of Section 131 have been complied with.
(1) A labour officer shall, where in relation to a contract of service he is not satisfied as to any of the matters specified in Section 23, refuse to attest the contract.
(2) Where a labour officer refuses to attest a contract of service he shall forward a written report setting out the grounds of his refusal to–
(a) the Secretary; and
(b) the employer; and
(c) the employee; and
(d) the person who proposed the employee for employment on contract.
(3) Subject to Subsection (4), where a labour officer refuses to attest a contract of service under Subsection (1) and the parties to the contract do not wish to enter into an oral contract, the employee, if he desires to return to the place where he was engaged for employment, shall be returned to the place of his engagement as if he were an employee to whom Section 40 applies.
(4) The Secretary may direct a labour officer to attest a contract of service.
Subdivision C. – Transfer of Contract.
(1) Subject to Subsection (2), a written contract of service may be transferred but no rights arising under any written contract of service shall be transferred from one employer to another employer unless the employee who is bound by the contract consents to the transfer and the particulars of the consent are endorsed on the contract.
(2) A transfer of an attested contract is void unless the transfer has been approved by a labour officer.
(3) Before approving a transfer under Subsection (2), the labour officer shall satisfy himself that–
(a) the employee has freely consented to the transfer; and
(b) the employee’s consent is not due to misinterpretation or mistake; and
(c) the employer has submitted to the labour officer a notice of variation in the prescribed form.
(4) Where an employer dies, any contract of service, in relation to which he is the employer that, at the time of his death, has not been terminated or has not expired shall be deemed to have been transferred to his legal personal representative.
Where a contract of service is transferred, all the rights, privileges, responsibilities and liabilities, including liability for all wages due and unpaid to the employee under the contract, of the transferor accrued at the time of the transfer are vested in the transferee.
Subdivision D. – Death of Employee.
Where an employee employed under an attested contract dies, his employer shall–
(a) at the first practicable opportunity, notify a labour officer; and
(b) where the employee has dependants resident with him comply with the provisions of Section 42; and
(c) in any case comply with the provisions of Section 84.
Division 5.
Piece-rate Contracts.
In this Division–
“piece-rate work” means work of an agricultural or horticultural nature declared by the Minister by notice in the National Gazette to be work to which this Division applies;
“unit of work” means the unit agreed on as being the basis for payment of an employee employed under a contract for piece-rate work.
An employer who employs an employee under a piece-rate contract of service unless the work in which the employee is engaged has been declared under Section 28 to be piece-rate work, is guilty of an offence.
Penalty: A fine not exceeding K300.00.
(1) A contract of service for piece-rate work may be made orally or in writing.
(2) Where a contract of service for piece-rate work is–
(a) made orally–Section 15 applies to that contract; and
(b) made in writing–it has no force or effect until and unless the employee–
(i) has signed or affixed his mark to the contract; and
(ii) has certified that the terms and conditions have been read by or to him and that he understands them.
(3) A contract of service under this section may be made between–
(a) an employer and an employee; or
(b) an employer and a group of employees engaged to carry out the piece-rate work jointly.
(4) A group of employees employed to carry out piece-rate work jointly shall designate one of their own number to be the representative for the group.
(5) A contract made under this Division confers on each member of the group the same rights and liabilities in relation to the employer as it does to the group jointly.
(6) The rates to be paid per unit of work shall be notified by the employer to each piece-rate employee prior to the commencement of the employment.
(1) An employer under this Division shall keep a Piece-rate Register as prescribed.
(2) A piece-rate employee and a labour officer may at all reasonable times inspect the Piece-rate Register kept in relation to that employee.
(3) An employer who–
(a) fails to keep a Piece-rate Register as prescribed; or
(b) refuses to allow a piece-rate employee, employed by him, or a labour officer at any reasonable time to inspect the Piece-rate Register,
is guilty of an offence.
Penalty: A fine not exceeding K100.00.
Where a measuring instrument is used by an employer for the purpose of measuring a unit of work it shall be a measuring instrument stamped and verified in accordance with the Trade Measurement Act 1973.
Division 6.
Termination of Contracts.
(1) A contract of service for a specified time or for specified work shall, unless terminated otherwise under this Division, terminate when the period of time for which the contract was made expires, or the work specified in the contract is completed.
(2) A contract of service for an unspecified period of time shall be deemed to continue until terminated by either party under this Division.
(1) This section does not apply to a written contract of service for the first two years of operation of the contract unless the parties to the contract agree otherwise.
(2) Subject to this Act, a party to a contract of service may, at any time, give notice to the other party of his intention to terminate the contract.
(3) The length of notice of intention required to terminate a contract of service shall be the same for both parties and–
(a) shall be as specified in the contract; or
(b) shall be not less than the periods specified in Subsection (4).
(4) Where there is no provision in a contract of service for notice of intention to terminate, the length of the notice shall be not less than–
(a) one day’s notice if the employee has been employed for less than four weeks; or
(b) one week’s notice if the employee has been employed for not less than four weeks and for less than one year; or
(c) two weeks’ notice if the employee has been employed for not less than one year and for less than five years; or
(d) four weeks’ notice if the employee has been employed for five years or more.
(5) Notice of termination shall be given–
(a) in the case of a contract of service referred to in Section 19(a)– in writing; and
(b) in the case of any other contract of service–either orally or in writing,
and the day on which the notice is given shall be included in the period of notice.
(1) An employer and an employee may mutually agree to terminate a contract of service with or without notice.
(2) Where a party to a contract has given notice of intention to terminate under Section 34, either party may, without waiting for the expiry of that notice, terminate the contract by paying to the other party a sum equal to the amount of salary that would have accrued to the employee during the period of the notice.
(3) A piece-rate contract of service made under Division 5 may be terminated by either party without notice.
(4) The employment of a casual employee may–
(a) subject to Paragraph (b)–be terminated by either party without notice; and
(b) if terminated by the employer for any reason other than one of the grounds specified in Section 36(1)–the casual employee shall be paid for a full day’s work on the day the contract is terminated notwithstanding that he may have worked less than eight hours on that day.
(1) An employer may terminate a contract of service without notice or payment instead of notice–
(a) where the employee–
(i) wilfully disobeys a lawful and reasonable order; or
(ii) misconducts himself by an act of omission or commission that is inconsistent with the due and faithful discharge of his duties; or
(iii) is guilty of a fraud or dishonesty; or
(iv) is habitually neglectful of his duties; or
(v) is imprisoned for a period exceeding seven days; or
(vi) is continually absent from his employment without leave or reasonable excuse; or
(vii) is convicted of an offence or contravention of this Act or any other law relating to employment; or
(b) on any other ground on which he would be entitled to terminate the contract without notice at common law.
(2) An employee may terminate a contract of service without notice–
(a) if the employer or a person acting or purporting to act on his behalf or by his authority–
(i) induced him to enter into the contract by force, fraud or a statement that was misleading in any material particular relating to the employment; or
(ii) has been convicted of an offence against or a contravention of this Act or any other law relating to the employee or his dependants; or
(iii) has been negligent or careless in the discharge of his duties towards the employee or his dependants under the contract, this Act or any other law; or
(iv) has committed an act of omission or commission that is inconsistent with the due and faithful discharge of his obligations towards the employee or his dependants; or
(v) has ill-treated the employee; or
(b) on any other ground on which he would be entitled to terminate the contract without notice at common law.
(3) Termination of a contract of service under Subsection (1) or (2) shall be made as soon as practicable after the happening of the event on which the termination is based.
(4) This Act does not prevent termination of a contract of service under this section being the subject of an industrial dispute under the Industrial Relations Act 1962.
Where an attested contract is lawfully terminated, the employer shall comply with–
(a) Division 7; and
(b) Section 84; and
(c) any other prescribed requirements.
(1) Where an attested contract is terminated under Section 36(1) or (2), on the application of an aggrieved party, a court may award–
(a) in the case of an employer–
(i) such amounts as it determines of additional expenses caused to the employer by reason of the wrongful act or default of the employee; and
(ii) authorize the employer to retain all or any part of any deferred or other wages due to the employee; or
(b) in the case of an employee–such amount as it determines of the value of loss of wages, allowances and any other expense to the employee caused by any wrongful act or default of the employer or of any person acting on his behalf or by his authority.
(2) An amount awarded under–
(a) Subsection (1)(a)(i) shall be deemed to be a judgement debt against the employee; and
(b) Subsection (1)(b)(i) shall be deemed to be a judgement debt against the employer,
and either amount may be set off by the court against the other.
(1) Subject to Section 38, an order or award made by a court under this Division takes effect notwithstanding anything to the contrary in this Act.
(2) This Division shall not be deemed to prevent any proceedings in the same matter under any other law, but an amount–
(a) retained by an employer under Section 38(1)(a)(ii); or
(b) actually recovered by an employee under Section 38(1)(b),
shall to that extent be satisfaction of a judgement obtained under that other law.
Division 7.
Repatriation.
(1) Subject to Section 43, where an employee has been brought to the place of employment by–
(a) the employer; or
(b) an employment agent or a worker-recruiter acting on behalf of the employer,
the employer shall pay the expenses of repatriating the employee to the place from which he was brought–
(c) on the expiry of the period of service specified in the contract of service; or
(d) on the termination of the contract–
(i) by agreement between the parties; or
(ii) by reason of the inability, refusal or neglect of the employer to comply with all or any of the provisions of the contract; or
(iii) by the employee under Section 36(2); or
(iv) by reason of the inability of the employee to comply with the provisions of the contract on account of illness or accident where the employee produces to the employer a certificate of a medical practitioner or other acceptable medical certificate certifying as to the inability of the employee to comply with the provisions of the contract.
(2) In the event of a dispute as to whether a medical certificate, other than a certificate of a medical practitioner, under Subsection (1)(d)(iv), is acceptable, the decision of a labour officer is final.
(1) Subject to Section 43 and to Subsection (2), the expenses of repatriation include–
(a) where the employer does not provide suitable transport–reasonable travelling expenses; and
(b) reasonable subsistence rations or expenses for rations for the duration of the journey; and
(c) reasonable subsistence rations or expenses for rations during the period (if any) between the termination of the contract and the commencement of the journey.
(2) The employer shall not be liable to provide subsistence rations or expenses for rations for any period during which repatriation of the employee is delayed due to the fault or choice of the employee.
(1) Subject to Section 43, where any dependants of an employee have been brought to the place of employment by–
(a) the employer; or
(b) an employment agent or a worker-recruiter acting on behalf of the employer,
and the employee becomes entitled to repatriation or dies, the accompanying dependants shall, subject to Subsection (2), be entitled to be repatriated to the place from which they were brought, and the employer shall be liable for the expenses of their repatriation in accordance with Section 41.
(2) Where an employee dies, and the usual place of abode of his accompanying dependants is a place in the country other than the place of engagement, the accompanying dependants may elect to be repatriated to that usual place of abode.
(3) Subject to Subsection (4), where an election is made under Subsection (2), the employer shall be liable for the expenses of repatriation in accordance with Section 41 to that place of abode instead of the place of engagement.
(4) The employer is liable for the expenses of repatriation to the usual place of abode to the extent only that he is liable for the expenses of repatriation under Section 41 to the place of engagement.
42A. REPATRIATION IN CASE OF DEATH OF EMPLOYEE, ETC.
[1]Where–
(a) an employee; or
(b) any dependant of an employee,
who has been brought to the place of employment by the employer or an employment agent or worker-recruiter acting on behalf of the employer, dies–
(c) during the period of service specified in the contract of service; or
(d) before completion of repatriation under this Act,
the employer shall, on the request of a relative of the deceased, pay the expenses of–
(e) the coffin; and
(f) transportation of the deceased’s body to the deceased’s usual place of abode.
(1) Where–
(a) a labour officer is satisfied–
(i) that the employee–
(A) does not wish to exercise his right to repatriation; or
(B) has settled elsewhere at his request or with his consent; or
(C) without reasonable cause did not avail himself of his right to repatriation within three months of his becoming so entitled; or
(ii) that there was just cause for the termination of the contract of service under Section 36(1) and the employee had not completed 12 months’ continuous service under the contract; or
(b) the employee or accompanying dependant enters into a contract of service with another employer,
the labour officer may exempt the employer from liability for all or any part of the expenses of repatriation.
(2) This section does not prevent an employer or employee who is aggrieved by a decision of a labour officer under Subsection (1) reporting the matter as an industrial dispute under the Industrial Relations Act 1962.
(1) An employer shall, where possible, provide transport or pay for public transport for any person entitled to repatriation by the employer under this Division.
(2) Where the employer provides transport under Subsection (1), a labour officer may direct the employer to take all necessary measures to ensure that–
(a) any vehicle or vessel provided by the employer for the transport of persons entitled to repatriation is–
(i) suitable and safe for the purpose; and
(ii) in good sanitary condition; and
(iii) not overcrowded; and
(b) suitable accommodation is provided for persons entitled to repatriation where it is necessary to break the journey overnight.
Where an employee employed on an attested contract and his accompanying dependants are entitled to repatriation, the employer shall, as soon as practicable after the expiry or termination of the contract, present to a labour officer at the place of pay-off–
(a) the original contract; and
(b) a statement in the prescribed form setting out the arrangements made for the repatriation of the employee and his accompanying dependants.
An employer may authorize an employment agent to perform any of his functions under this Division.
PART IV. – CONDITIONS OF EMPLOYMENT.
Division 1.
Application of Part IV.
This Part does not apply to a piece-rate employee.
Division 2.
Hours of Work and Overtime.
For the purposes of this Division–
“call-out duty” means overtime which an employee is required to perform without prior notice being given during–
(a) normal working hours; or
(b) stand-by duty;
“normal working hours” means hours of duty other than call-out duty, overtime or stand-by duty;
“overtime”–
(a) in respect of an employee other than an employee employed on shift work means–
(i) all time worked in excess of eight hours in any one day other than a Saturday, Sunday or public holiday; and
(ii) all time worked on a Saturday after 12 noon; and
(iii) all time worked on a Sunday or public holiday; and
(b) in respect of an employee employed on shift work–
(i) all time worked in excess of eight hours in any one day; and
(ii) all time worked in excess of 44 hours in any period of seven days;
“shift work” means work that is performed in three intervals of duty spread over a 24 hour period;
“stand-by duty” means periods when an employee not actually working is required to be available for duty.
(1) Subject to Subsection (5) and to variation under a registered award, an employee shall not be required to work more than 12 hours in any one day.
(2) Subject to Section 50(1) and (2) and to variation under a registered award, an employee–
(a) who is required to work eight hours or more in any day shall be allowed one or more meal or rest periods totalling in the aggregate not less than 50 minutes; and
(b) shall not be required to work for more than five hours without a meal or rest period of not less than 30 minutes if he has been allowed a rest period of at least 10 minutes during that period; and
(c) shall not be required to work for more than five hours without a meal or rest period of not less than 40 minutes if he has not been allowed a rest period of at least 10 minutes during that period.
(3) Subject to Subsections (4) and (5) and to variation under a registered award, an employee–
(a) not engaged on shift work shall be allowed a rest period of at least 24 consecutive hours in every week counting from Monday to Sunday inclusive; and
(b) engaged on shift work shall be allowed rest periods which in each instance shall be of not less than 24 consecutive hours and shall total in the aggregate less than 96 hours in every period of 28 days.
(4) A rest period under Subsections (2) and (3) shall be in addition to any time off under Sections 50 and 52.
(5) An employee shall not be liable to stand-by duty during any rest period prescribed under this section or Sections 52(5) and 56.
(1) Subject to Subsection (3), the maximum hours worked per day, or without a rest period prescribed by Section 49, shall be exceeded only in the case of–
(a) accident, actual or threatened; and
(b) urgent work to be done to machinery, installations or plant, so far as is necessary for the safety of, or to avoid serious interference with, the ordinary working of the establishment or undertaking; and
(c) sudden emergency or the necessity to deal with circumstances which could not reasonably have been foreseen or otherwise dealt with; and
(d) employees engaged on work which must be performed in order to avoid the deterioration or loss of materials or goods and which by reason of their nature or of exceptional circumstances it has not been possible to complete within the maximum hours; and
(e) employees whose continued presence is necessary for the completion of operations which for technical reasons cannot be interrupted at will, and that by reason of exceptional circumstances it has not been possible to complete within the maximum hours; and
(f) employees engaged on work required to co-ordinate the work of two successive shifts; and
(g) employees engaged in the loading or unloading of goods and cargo to or from ships or aircraft or in work associated with the arrival or departure of ships or aircraft where in either case weather conditions have caused a stoppage of work for the rest period to be dispensed with or for the maximum working hours to be exceeded by not more than four hours; and
(h) employees whose services are necessary for–
(i) the care of the sick, infirm or mentally unfit; or
(ii) ensuring the efficient working of public utilities; and
(i) employees who are employed on defence projects.
(2) Subject to Subsection (3)–
(a) where an employee is engaged in shift work in an industrial process which necessitates the continuous use of shift workers over unbroken periods of 24 hours, the employer may apply in writing to the Secretary for a variation of the provisions of Section 49(2); and
(b) the Secretary may, by written notice to the employer vary the provisions of Section 49(2) subject to any conditions he thinks fit.
(3) Where a rest period is not allowed in accordance with Section 49, it shall be allowed as soon as possible after it became due.
(1) Subject to this Division, an employer may require an employee to work a reasonable amount of overtime.
(2) Where overtime is to be worked on a Sunday or a public holiday, it shall be by agreement between the employer and the employee or between their respective registered industrial organizations.
(3) Notwithstanding Subsections (1) and (2), where an employee is engaged as a winchman or in operating machinery or equipment the careless or inefficient use of which may constitute a danger to the health or life of the employee or to other persons, an employer shall not require or permit the employee to work any consecutive periods including overtime that may cause the employee to suffer from fatigue or become careless or inefficient in the discharge of his duties, but this subsection shall not be deemed to limit any liability of an employer to an employee or to any other person.
(1) Subject to Subsection (5), an employee who works overtime shall be paid at the rate prescribed under Subsection (2) for that overtime.
(2) Overtime worked–
(a) on a Sunday shall be paid at twice the hourly rate; and
(b) on a public holiday shall be paid at the hourly rate; and
(c) at any time, other than a Sunday or a public holiday, shall be paid at one and one half times the hourly rate.
(3) Where an employer and an employee so agree, a Saturday may be substituted for a Sunday for the purposes of Subsection (2).
(4) For the purposes of the calculation of overtime–
(a) there shall be deemed to be 52 weeks in a year; and
(b) there shall be deemed to be 44 hours in a week; and
(c) the hourly rate shall be calculated–
(i) by dividing the annual wage by the number of working hours deemed to be in a year; or
(ii) by dividing the weekly wage by the number of working hours deemed to be in a week; or
(iii) by dividing the daily wage by eight.
(5) Notwithstanding the provisions of this section, an employer may, by agreement with an employee, instead of paying for overtime worked, before–
(a) the expiration of seven days after the day on which the overtime was worked; or
(b) the last day on which the overtime is payable under Section 55,
whichever is the later, allow the employee time off during normal working hours at least equal in length to the overtime worked.
(1) An employee on stand-by duty shall be paid in accordance with Subsection (2).
(2) For each hour of stand-by duty an employee shall be paid–
(a) an amount not less than 10% of his hourly rate calculated under Section 52(4); or
(b) an amount of K0.30 for each unbroken period of stand-by duty,
whichever is the greater.
(3) Stand-by duty shall be deemed to cease when the employee–
(a) reports for duty as required by the employer; or
(b) is notified by the employer that he is no longer on stand-by duty.
(1) Subject to Subsection (2), an employee on call-out duty shall be paid in respect of that call-out duty overtime in accordance with Section 52.
(2) Where a period of overtime worked in consequence of a call-out is–
(a) less than three hours, overtime for a period of three hours shall be paid; or
(b) three hours or more, a call-out payment of K0.30 shall be paid in addition to the overtime.
In respect of any overtime, stand-by or call-out duty performed during any month, payment shall, subject to Section 52(5)–
(a) be made as soon after the performance of that duty as is convenient to the employer, but in any case not later than–
(i) seven days after the next day on which payment of current wages would normally be due; or
(ii) termination of employment,
whichever first occurs; and
(b) be calculated to the nearest quarter of an hour of the total overtime, stand-by or call-out duty, as the case may be, performed during the period for which payment is being made; and
(c) be calculated to the nearest toea.
(1) Where an employee works on Good Friday or Christmas Day he shall, in addition to the overtime payment for that duty be allowed time off during normal working hours at least equivalent to the time worked on Good Friday or Christmas Day.
(2) The time off allowed under Subsection (1) shall be given within seven days after the day on which the overtime was worked.
An employer shall keep such records and make such returns of overtime, stand-by and call-out duty worked by an employee as are prescribed.
Division 3.
Recreation Leave.
This Division does not apply to a casual employee or a piece-rate worker.
For the purpose of this Division, unless the contrary intention appears, “continuous service” means continuous service with the same employer.
(1) The continuity of service of an employee shall not be affected by–
(a) a transfer of a contract of employment from one employer to another under Section 25; or
(b) the death of the employer; or
(c) sick leave.
(2) A period of absence, due to–
(a) a break in service of not more than three months; or
(b) suspension of a contract of employment under a law in force in Papua New Guinea; or
(c) maternity leave; or
(d) any cause beyond the control of the employee,
shall not–
(e) be taken into account in computing the amount of recreation leave due under Section 61(1); or
(f) be taken into account in calculating the qualifying period of service under Section 61(4); or
(g) affect continuity of service.
(1) Subject to the provisions of any registered award, an employee is entitled for each year of continuous service to a period of 14 consecutive days paid leave including non-working days occurring within that period of paid leave, and where any public holiday falls within an employee’s period of paid leave and is observed on a day that, in the case of that employee, would have been an ordinary working day had he not been on leave, there shall be added to that leave period one extra day being an ordinary working day, for each day of that public holiday.
(2) Subject to Subsections (3), (4) and (5), the right to recreation leave accrues at the end of each period of 12 months continuous service.
(3) Recreation leave credits may be accrued, by agreement between the employer and employee, for any period of continuous service to a maximum of four years.
(4) An employee whose employment terminates or is terminated is entitled to be paid recreation leave, if he has completed not less than six months continuous service, at the rate of one day for each completed month of service.
(5) Where an employee’s contract of service expires or is terminated and he is entitled to be paid recreation leave under this section, an employer may, instead of the grant of the period of leave, pay to the employee an amount equal to his wages for the period of leave to which he is entitled.
An employer shall pay to the employee–
(a) his ordinary rate of pay for every day of recreation leave to which he is entitled; and
(b) the total of his entitlement prior to the commencement of the recreation leave.
Subject to the provisions of any registered award, an employee who–
(a) had, prior to the commencement date, accrued long service leave credits under Section 127A of the Native Employment Act 1958 (Adopted); and
(b) continues, at the commencement date, in employment with the same employer,
shall be credited with recreation leave entitlements calculated at the rate of three and one half days for each year of service over which the long service leave credits accrued with pro-rata entitlements commencing on the completion of six months of such service.
Division 4.
Sick Leave.
This Division does not apply to a casual employee or a piece-rate employee.
(1) An employee who–
(a) has served an employer for a period of not less than six months; and
(b) is absent on account of illness or injury, other than illness or injury arising out of or in the course of his employment; and
(c) produces a certificate of a medical practitioner or other acceptable medical certificate to his employer,
is entitled to be paid sick leave at the rate of six days in each year.
(2) Sick leave under Subsection (1) may be accumulated to a maximum of 18 days exclusive of sick leave credits for the current year.
(3) In the event of a dispute as to whether a medical certificate, other than a certificate of a medical practitioner, under Subsection (1)(c) is acceptable, the decision of a labour officer is final.
(4) An employee who absents himself on sick leave–
(a) without producing to the employer an acceptable medical certificate; and
(b) without informing or attempting to inform the employer of his absence on sick leave within 72 hours of the commencement of his absence,
is not entitled to sick leave pay and shall be deemed to be absent without the permission of the employer and without reasonable excuse for the period of that absence.
(1) The employer shall pay to the employee sick leave pay at the rate of his ordinary pay for every day of absence on sick leave.
(2) An employee shall not be entitled to sick leave pay–
(a) on a rest day or a public holiday to which he is entitled under this Act; or
(b) on any day of paid recreation leave.
Division 5.
Food Rations.
(1) For the purposes of this Division, “the ration scale” means the ration scale specified in Part 1 of Schedule 1.
(2) Subject to Section 69(2), a reference in this Division to a unit shall be read as a reference to a unit of food specified in the ration scale.
Where, by agreement between an employer and an employee, food rations are to be supplied by the employer to the employee, they shall, unless otherwise agreed by the employer and an employee or otherwise provided for by a registered award, be supplied in accordance with the ration scale.
(1) Subject to any agreement between the employer and the employee and to any registered award, the minimum daily food ration to be issued daily in advance to the employee by the employer shall be one unit selected from each of the items specified in the ration scale.
(2) The employer may, at his discretion–
(a) where there is provision in the ration scale for the issue of alternative units, determine from time to time which unit he shall issue; and
(b) for the purpose of providing a varied diet, instead of issuing a complete unit or portion of a unit as prescribed in the ration scale, issue a proportion of two or more units selected from that item of the ration scale so that the total quantity issued is equivalent to a complete unit or portion of a unit as prescribed; and
(c) comply with the footnotes to the ration scale which shall be construed as special conditions applicable to the issue of food rations.
Where appropriate food rations are issued to an employee, they shall, at the time of issue, be–
(a) edible; and
(b) of good quality; and
(c) to standards prescribed in Part 2 of Schedule 1.
All food held by an employer for issue to an employee shall be stored to the satisfaction of an authorized officer.
(1) Subject to Subsection (2), where the number of employees resident at the place of employment and in receipt of food rations is more than–
(a) 10, but not more than 40, the employer shall provide at his expense, one person to cook and serve the meals; and
(b) 40, the employer shall, for each 40 or part of 40 employees, provide one person to cook and serve the meals.
(2) In calculating the number of employees for the purposes of Subsection (1), an employee whose wife resides with him at the place of employment shall not be taken into consideration.
Division 6.
Division 6. -Clothing and Other Articles..
(1) Where by agreement between the employer and the employee clothing and other articles are to be issued by an employer to an employee–
(a) the clothing and other articles to be issued; and
(b) the time of issue,
are, unless otherwise agreed to by the employer and an employee or otherwise provided for by a registered award, as prescribed.
(2) An item or other article issued by an employer to an employee under this section becomes, at the time of issue, the property of the employee to whom it is issued.
PART V. – PAYMENT AND PROTECTION OF WAGES.
For the purpose of this Part, when determining the day immediately preceding a public holiday, a Saturday, Sunday or public holiday immediately preceding that public holiday shall not be taken into account.
An employer may, by instrument, authorize an employment agent to perform any or all of his functions under this Part.
(1) The wages payable to an employee shall be not less than those provided for by registered awards relevant to the employee.
(2) The minimum rates of remuneration for piece-rate work shall be not less than those provided for by registered awards relevant to that work.
An employee is not entitled to be paid wages in respect of any period during which he is–
(a) imprisoned under any law or otherwise detained in lawful custody; or
(b) absent without leave or without reasonable excuse.
(1) A casual employee shall be paid a day’s wages at the completion of each day’s employment.
(2) Subject to Subsection (3), a piece-rate employee shall be paid wages in proportion to the amount of work performed–
(a) at intervals of not longer than two weeks; or
(b) on completion of the piece-rate work,
whichever is the earlier.
(3) An employer may pay a piece-rate employee by mutual agreement at intervals longer than a fortnight but not longer than one month.
(4) Subject to Subsection (5), an employee other than a casual employee or a piece-rate employee shall be paid at intervals–
(a) of not longer than two weeks; or
(b) by agreement between the employer and employee–of not longer than one month.
(5) Where food rations are issued to an employee referred to in Subsection (4), that employee shall be paid at intervals of not longer than one month.
The wages of an employee shall commence–
(a) in the case of an employee under an attested contract–on or from the day the contract is attested, and that day shall be regarded as a full day for the purpose of calculating wages; and
(b) in the case of an employee under a written contract of service that is not an attested contract, unless mutually agreed– on and from the date on which the contract is signed, and that day shall be regarded as a full day for the purpose of calculating wages; and
(c) in the case of an employee under an oral contract of service, unless otherwise mutually agreed–on and from the date on which he commences duty at the place of employment, and that day shall be regarded as a full day for the purpose of calculating wages; and
(d) in any case–no later than the day on or from which the employee commences duty and that day shall be regarded as a full day for the purpose of calculating wages.
Wages shall be paid on work days during working hours at or near the place of employment.
(1) Wages paid to an employee–
(a) shall be in Papua New Guinea currency; and
(b) shall, subject to Subsection (2), be paid directly to the employee.
(2) Where an employee who is absent, authorizes in writing a person to receive his wages on his behalf, the employer may pay to the person so authorized the wages of the employee.
(3) Where–
(a) the employee makes a written request to the employer; or
(b) a registered award applicable to the employee so provides,
payment may be made–
(c) into an account at a bank or saving society being an account standing in the name of the employee, or the employee jointly with one or more other persons; or
(d) by postal order; or
(e) by cheque.
An employer shall, when paying an employee, provide him with a written statement or pay envelope endorsed with particulars in respect of the wage period including–
(a) the gross amount of ordinary wages earned; and
(b) the amount of pay earned for overtime, call-out and stand-by duty; and
(c) the amount of any extra payment; and
(d) the amount of any deductions made from the employee’s wages and the reasons for those deductions; and
(e) the net amount of wages due; and
(f) the date of the pay period.
(1) Every employer shall keep a record as prescribed of–
(a) the wages paid to each employee; and
(b) any deduction made from wages, and the reason for the deduction.
(2) The record under Subsection (1) shall be–
(a) kept at the place of employment or any other place that the Secretary may, in writing, in any particular case approve; and
(b) available at all reasonable times for inspection by a labour officer.
(1) Subject to Subsection (2), where an attested contract is terminated or expires, the employer shall–
(a) as soon as practicable after the date of termination or expiration, present to a labour officer at the Labour Office at a place mutually acceptable to the employer and the employee–
(i) the original contract; and
(ii) a statement, in the prescribed form, showing all particulars of current and deferred wages due to the employee and of all leave or money instead of leave received by the employee; and
(b) pay to the employee in the presence of a labour officer at the Labour Office referred to in Paragraph (a)–
(i) all current and deferred wages; and
(ii) any other amounts,
due to the employee.
(2) Where an attested contract has been terminated or has expired and the employee–
(a) is absent and cannot be located by the employer; or
(b) does not present himself for payment of wages due in accordance with this Part.
the employer shall pay all current and deferred wages and all other amounts due to the employee to a labour officer.
(3) Where an employee employed under an attested contract dies before all wages and other amounts due to him have been paid, the employer shall pay those wages to a labour officer for distribution according to law.
Any payment of deferred wages that is made otherwise than in accordance with this Part is not a valid discharge to the employer for those wages.
(1) Subject to Subsection (2), where an employee is in employment on a day immediately preceding a public holiday he shall–
(a) if required to work on that holiday–be paid his usual wages for that day as if it had not been a public holiday and in addition, be paid in accordance with the provisions of this Act for the time worked; or
(b) if not required to work on that holiday–be paid his usual wages for that day as if he had worked and it had not been a public holiday.
(2) Subsection (1)(b) does not apply to a casual employee or a piece-rate employee.
(3) Where an employer terminates the employment of an employee, other than a casual employee or a piece-rate employee, on a day immediately preceding a public holiday, the employer shall pay to the employee the wages he would have received if he had worked on that public holiday and it had not been a public holiday.
(1) An employer shall not, without the approval of a labour officer, make an advance of wages to an employee exceeding 50% of one months’ wages.
(2) A sum advanced by an employer to an employee in excess of the amount of 50% of one months’ wages is not recoverable by the employer unless the employer obtained an approval under Subsection (1) before the advance was made.
(3) Subject to Subsections (1) and (2), an advance of wages made by an employer may be recovered from the employee to whom the advance was made by deductions from the wages of the employee but in no case shall more than 25% of the net wages due to the employee for any pay period be deducted for that purpose.
(4) Subject to Subsections (1) and (2), where an advance of wages made by an employer to an employee has not been recovered at the time of termination or expiration of the contract of service in relation to that employee, the employer may recover the whole of the amount of the advance outstanding from any wages payable to the employee.
(1) Notwithstanding any other provisions of this Act but subject to Subsection (2), an employer may make deductions from any wages due and payable to an employee for–
(a) contributions to a provident, medical or pension fund or to any scheme approved by the Secretary; and
(b) food rations, clothing and other articles issued under Divisions IV.5 and 6 and in accordance with registered awards; and
(c) any amount paid to the employee in error as wages in excess of the amount of wages due to him; and
(d) subject to any direction by the Secretary–an amount or part of an amount of any shortage of money due to the negligence of the employee where his contract of service provides specifically for his being employed in connection with the receipt, payment and custody of money; and
(e) in the case of an employee employed under an attested contract–deferred wages; and
(f) rental for housing provided under Part VIII; and
(g) cost of repatriation where the employee is not a citizen; and
(h) any other prescribed items; and
(i) any advance paid to the employee under Section 87.
(2) Deductions under Subsection (1) shall not be made unless the employer has first received the written consent of the employee and, in the case of an employee employed under an attested contract, that consent has been witnessed by a labour officer.
(3) An employer may, whether or not the employee consents, deduct from the wages of the employee any amount that the employer is required or empowered to deduct from those wages under any law in force in Papua New Guinea.
(4) Notwithstanding any other law but subject to any right of recovery of the employer of any debt due to him by the employee, the total amount of all deductions made under this Part shall not exceed 50% of the wages due to be paid to the employee for any pay period and such additional amount (if any) as the Secretary may declare, either generally or in relation to–
(a) any employer or employee; or
(b) any class of employers or employees; or
(c) any trade or industry.
Any deductions made by an employer under Section 88(1)(a) shall be paid as soon as practicable by the employer to the person or fund entitled to receive them.
(1) An employer shall, when requested by an employee to do so, with the approval of a labour officer, pay to that employee all or any part of the deferred wages held by the employer on behalf of the employee.
(2) Where an employer makes deductions from the wages of an employee to cover the expenses of repatriating the employee and his dependants (if any) to the place of engagement of the employee, the employer shall refund the whole of those deductions to the employee immediately after–
(a) the date of expiration of–
(i) the contract of service; or
(ii) two years from the date of engagement,
of the employee, whichever is the earlier; or
(b) the date of termination of the contract of service of the employee under Section 35 or 36,
as the case may be, but, where the contract of service is terminated under Section 36(1), the employer–
(c) may use such part of those deductions as is necessary to repatriate the employee and his dependants (if any) to the place of engagement of the employee; and
(d) shall refund to the employee such part of the deductions as is not used for the purposes of Paragraph (c).
An employer shall not make any deductions from the wages payable to an employee by way of discount, interest or similar charge in consideration–
(a) for any advance of wages; or
(b) as a reward for providing employment for the employee; or
(c) for retaining the employee in employment.
(1) An employer must not limit or attempt to limit the right of an employee to dispose of his wages in any manner he deems fit.
(2) An employer lawfully entitled to do so may establish a shop for the sale of provisions generally to his employees, but an employee must not be compelled by any contract, award or oral or written order to make any purchase from that shop.
Penalty: A fine not exceeding K500.00.
(1) Subject to any other law in force in Papua New Guinea, the wages due to an employee to the extent of a sum not exceeding four months’ wages has priority over all other debts of an employer.
(2) This Act does not prevent an employee from recovering any balance of wages due to him by an employer by ordinary process of law.
An employer who imposes a fine of any kind on an employee is guilty of an offence.
Penalty: A fine not exceeding K500.00.
An employer who pays any wages to an employee whilst the employee is in any shop, store, canteen or place where intoxicating liquor is sold is guilty of an offence, unless the employee is employed to work in that place.
Penalty: A fine not exceeding K300.00.
Any person who–
(a) employs or continues in his employment an employee without–
(i) the intention of paying; or
(ii) having reasonable grounds for believing that he will be able to pay, the wages of the employee as they become due; or
(b) without reasonable excuse, fails on demand to pay in accordance with this Part any wages due and payable to an employee; or
(c) makes any deductions from wages other than those authorized under this Part; or
(d) contravenes by any act or omission any provision of this Act relating to the payment of wages,
is guilty of an offence.
Penalty: A fine not exceeding K500.00.
PART VI. – EMPLOYMENT OF FEMALES AND YOUNG PERSONS.
Division 1.
Females.
Subject to this Part, an employer who–
(a) discriminates against a female person on account of her sex; or
(b) fails to pay a female employee the same wages as a male employee employed at the same level in the same work,
is guilty of an offence.
Penalty: A fine not exceeding K200.00.
A female person shall not be employed–
(a) in heavy labour; or
(b) underground in any mine except where she holds a responsible position and is not employed in manual work.
(1) Subject to Subsection (2), female persons other than those–
(a) holding responsible positions at a managerial or technical level; or
(b) employed in health or welfare services; or
(c) employed in an undertaking in which only members of the same family are employed,
shall not be employed between the hours of 6 p.m. and 6 a.m. in any industrial undertaking.
(2) The Minister may, where in his opinion there exists a national emergency or it is in the national interest to do so, by notice in the National Gazette, suspend the operation of Subsection (1).
(1) Where the employer of a female employee is notified or becomes aware of the pregnancy of the employee, the employer, in addition to complying with the other provisions of this Act–
(a) shall agree, if the employee so desires, to the termination of the employment without penalty; and
(b) shall not, except where the employee has been employed for less than 90 days, without the consent of the employee, terminate the employment on the grounds of or arising out of the pregnancy; and
(c) shall, where the employment is not terminated, grant to the employee maternity leave in accordance with this section where the employee has been employed by the employer–
(i) for not less than 108 days within the period of 12 months; or
(ii) for not less than 90 days within the period of six months,
immediately preceding the grant of leave.
(2) During the period of maternity leave granted under Subsection (1)(c), the employment of the employee shall not be terminated except by mutual consent.
(3) The period of maternity leave to be granted under Subsection (1)(c) shall be–
(a) the period necessary for hospitalization prior to confinement; and
(b) subject to Subsection (4), six weeks following confinement.
(4) Where, due to sickness following confinement, an employee is unable to carry out her employment, the employee shall be granted, in addition to maternity leave under Subsection (3), an additional period of maternity leave not exceeding four weeks.
(5) Maternity leave granted under Subsections (3) and (4) shall–
(a) be deemed to be a period of work under the contract of service; and
(b) shall be without wages except where the employee elects to convert recreation or sick leave credits into paid maternity leave.
(1) Where an employee is nursing her child she shall, for that purpose, be allowed periods of absence from duty.
(2) Periods of absence allowed under Subsection (1) shall be–
(a) not less than one half hour twice daily during normal working hours; and
(b) counted as working hours for the purposes of calculating wages.
(3) An employer shall not make any deductions from the wages of an employee for periods of absence allowed under Subsection (1).
(1) Notwithstanding the grant of maternity leave under Section 100 but subject to Subsection (2), a female employee may, if she so desires, resume her employment at any time during the period of the maternity leave.
(2) Before resuming employment under Subsection (1), the employee shall obtain a certificate as to her medical fitness.
(3) An examination for a medical certificate under Subsection (2) shall be made by a medical practitioner or a nurse registered under the Medical Registration Act 1980.
Division 2.
Young persons.
(1) Subject to Subsections (2) and (3), a person under 16 years of age shall not be employed.
(2) Subject to Subsection (3), a person over 11 years of age but under 16 years of age may be employed if the employer first obtains–
(a) at the employer’s own expense, a certificate from a medical practitioner indicating that the person is fit for the type of employment proposed; and
(b) the written consent of his parent or guardian to the employment.
(3) Where the employment–
(a) is not prejudicial to attendance at school; and
(b) is outside the hours prescribed for attendance at school,
and the employer has complied with Subsection (2), a person–
(c) who is over 11 years of age but under 16 years of age may be employed in an undertaking in which only members of his family are employed; and
(d) of 14 or 15 years of age may be employed in any industry other than an industrial undertaking or the fishing industry.
(4) Notwithstanding Subsection (3), a person of 14 or 15 years of age may be employed during the hours prescribed for attendance at school where the employer is satisfied that the person no longer attends school.
(1) A person under 16 years of age shall not be employed in any employment or in any place or under working conditions that are injurious or likely to be injurious to the health of the person.
(2) The certificate of a medical practitioner shall be conclusive evidence as to whether the employment, place of employment or working conditions is or are injurious or likely to be injurious to the health of the person.
(3) An employer who employs a person under 16 years of age in any employment–
(a) that is injurious to health, dangerous or unsuitable; or
(b) concerning which he has been notified by the Secretary that it is injurious to health, dangerous or unsuitable,
is guilty of an offence.
Penalty: A fine not exceeding K500.00.
(4) Where the employment of a person under 16 years of age is discontinued under Subsection (3), he retains his right under the terms of his contract of service to be paid all wages due to him up to and including the date of discontinuance.
(1) A person under 16 years of age shall not be employed between the hours of 6 p.m. and 6 a.m.
(2) A person 16 or 17 years of age shall not be employed between the hours of 6 p.m. and 6 a.m, except in an undertaking in which only members of his family are employed.
PART VII. – RECRUITING AND EMPLOYMENT AGENTS.
Division 1.
Worker-Recruiters.
A person who–
(a) is not a worker-recruiter; or
(b) is not an employer acting on his own behalf,
and who engages in or assists a person who engages in recruiting is guilty of an offence.
Penalty: A fine not exceeding K500.00 or imprisonment for a term not exceeding two years, or both.
(1) Each worker-recruiter shall be furnished with an authority in a form approved by the Secretary signed by his employer which he shall produce on demand to a labour officer.
(2) A worker-recruiter shall not be authorized simultaneously by more than one employer to recruit labour.
(3) Where a worker-recruiter is convicted of an offence under this Division, his employer must–
(a) withdraw the authority furnished under Subsection (1); and
(b) cease employing the worker-recruiter in any recruiting.
Penalty: A fine not exceeding K200.00.
(1) The Minister may, by notice in the National Gazette, declare an area to be an area in which recruiting is prohibited.
(2) A worker-recruiter or an employer recruiting on his own behalf who recruits in an area declared under Subsection (1) is guilty of an offence.
Penalty: A fine not exceeding K500.00.
Where a worker-recruiter or an employer recruiting on his own behalf makes an advance to a recruited employee, that advance is subject to Section 87.
Division 2.
Employment Agents.
A person who carries on or causes to be carried on, an employment agency without being licensed for that purpose under this Act is guilty of an offence.
Penalty: A fine not exceeding K500.00.
An application for an employment agent’s licence or renewal of an employment agent’s licence shall be made to the Secretary in the form approved by him.
(1) The Secretary may grant or refuse an application for an employment agent’s licence or renewal of an employment agent’s licence.
(2) A licence may be issued subject to such conditions, (if any) as the Secretary thinks fit and as are endorsed on the licence.
(3) The annual fee for an employment agent’s licence and for each renewal of licence is as prescribed.
(4) An employment agent’s licence remains in force, unless sooner cancelled or suspended, until 31 December next following the date of issue.
(5) An employment agent’s licence shall be in the prescribed form and shall be produced on demand to a labour officer.
(1) An employment agent’s licence shall not be issued in the name of any company, partnership or association.
(2) Where a company, partnership or association operating as an employment agent applies for an employment agent’s licence, it shall nominate a person to hold the licence on behalf of that company, partnership or association.
(3) Where a person nominated under Subsection (2) dies or ceases to be associated with the company, partnership or association, the licence issued to him shall, on the request of the company, partnership or association on whose application it was issued, be transferred by the Secretary to another person nominated by the company, partnership or association.
(4) A request for a transfer of an employment agent’s licence under Subsection (3) shall be made to the Secretary within 14 days after the happening or event which gave rise to the request for a transfer.
(1) The Secretary, where he is satisfied that a licensed employment agent–
(a) has been convicted of an offence against this Act; or
(b) has failed to perform a duty that he is required to perform under this Act; or
(c) is not a fit and proper person to continue to hold a licence; or
(d) has failed to comply with a condition of his licence,
may cancel or suspend the licence of that employment agent.
(2) Where an employment agent’s licence is cancelled, the holder of the licence shall return the licence to the Secretary within 14 days after the notice of cancellation is received by him.
(1) Where–
(a) an application for the grant or renewal of an employment agent’s licence has been refused; or
(b) an employment agent’s licence has been cancelled or suspended; or
(c) conditions have been endorsed on an employment agent’s licence,
the Secretary shall notify the applicant, in writing, of the reasons for the refusal to grant or renew, or the cancellation, suspension or endorsement of the licence, as the case may be.
(2) A person aggrieved by a decision of the Secretary under Subsection (1), may, within 30 days after receipt of the notification under that subsection appeal to the Minister whose decision is final.
An employment agent who–
(a) charges an employee a fee; or
(b) receives any remuneration from an employee,
is guilty of an offence.
Penalty: A fine not exceeding K300.00.
An employment agent shall–
(a) keep detailed records and a register; and
(b) submit returns to the Secretary,
in connection with the employment agency, as prescribed.
An employment agent who–
(a) solicits, procures or entices a prospective employee to use the services of that employment agent in any manner other than by written advertisement; or
(b) knowingly deceives a person by giving false information; or
(c) makes, causes to be made or knowingly allows to be made, a register, record or return which is false in any material particular,
is guilty of an offence.
Penalty: A fine not exceeding K300.00.
PART VIII. – HOUSING.
For the purposes of this Part “adequate housing” means–
(a) in an urban area–housing of a standard prescribed by the relevant building authority; or
(b) in a rural area–housing of a standard prescribed by the relevant local authority; or
(c) in an area where there is no local authority to prescribe the standard of housing–housing of a standard approved by the Secretary.
(1) Where the place of employment is in an urban area–
(a) adequate housing shall, subject to Paragraph (b), be provided by an employer for–
(i) all single persons; and
(ii) all married persons not accompanied by dependants,
employed by him; and
(b) an employer is not required to provide housing for–
(i) any employee in receipt of a wage equivalent to or more than a qualified tradesman; or
(ii) any employee who owns a house that is within close proximity and reasonably accessible to the place of employment; or
(iii) any employee who has written permission of the owner of a house to occupy the house, within close proximity and reasonably accessible to the place of employment.
(2) Where the place of employment is in a rural area–
(a) adequate housing shall, subject to Paragraph (b), be provided by the employer for all persons employed by him; and
(b) an employer is not required to provide housing for–
(i) any employee who owns a house; or
(ii) any employee who has written permission of the owner of a house to occupy the house,
within close proximity and reasonably accessible to the place of employment.
(3) Where the place of employment is in a rural area, employees with accompanying dependants shall be provided by the employer with adequate housing in separate accommodation for each family.
(4) The consent of an employer for an employee to be accompanied by his dependants cannot be terminated whilst the employee continues to be employed by that employer.
(5) Where it is impracticable for an employer to provide adequate housing–
(a) he may apply in writing to the senior labour officer in the province where the place of employment is situated to be exempted from providing adequate housing; and
(b) on receipt of an application under Paragraph (a) the labour officer may, by instrument, exempt an employer from providing adequate housing for the period and subject to any conditions he thinks fit and as are specified in the instrument.
(6) It is a defence to a charge of an offence against this section for the employer to prove that genuine efforts by him to obtain land for adequate housing have failed.
(1) Where housing is supplied for employees by an employer, the employer shall provide, within a reasonable distance of the house, an adequate supply of water suitable for drinking and washing purposes.
(2) Where, in the opinion of an authorized officer, the supply of water under Subsection (1) is–
(a) inadequate; or
(b) not reasonably accessible for use,
the authorized officer may serve on the employer a written notice requiring him to remedy the defect within the time specified in the notice.
(3) An employer who fails or refuses to comply with a notice served on him under Subsection (2) is guilty of an offence.
Penalty: A fine not exceeding K200.00.
(1) Where housing is provided for his employees by an employer and–
(a) electricity is readily available, the housing shall be adequately illuminated by electricity; and
(b) electricity is not readily available, the employee shall be provided by the employer with sufficient lighting appliances and fuel to adequately illuminate the housing,
at, subject to any registered award to the contrary, the cost of the employer, but the employer may deduct the cost of such electricity or illumination, other than the cost of installation, from the wages of the employee.
(2) The question of whether any housing is adequately illuminated shall be determined by a labour officer.
(1) The Secretary may, by notice in the National Gazette, declare an area to be an area where mosquito nets need not be provided.
(2) In all areas, other than areas declared under Subsection (1), where housing provided by an employer is not adequately mosquito-proofed, the employer shall provide–
(a) for each employee employed and housed by him; and
(b) for each accompanying dependant of those employees over the age of two years,
a suitable mosquito net.
(1) All buildings, premises and surrounding areas where an employee or accompanying dependants are housed or employed shall be maintained in a clean and sanitary condition.
(2) An employee may be required by an employer to perform such duties as may reasonably be necessary to maintain buildings, premises and surrounding areas referred to in Subsection (1) in a clean and sanitary condition.
(1) Subject to Subsection (2), any deductions from an employee’s wages relating to the provision of housing shall be in accordance with the deductions specified in registered awards relating to the employment in which the employee is engaged.
(2) Where an employee is in receipt of a wage equivalent to or more than a qualified tradesman, deductions for housing may only be made from the wages of the employee in accordance with an agreement between the employee and the employer or between their respective registered associations.
(1) Where an employee is provided with housing under the terms of his employment or by a rental agreement made in connection with his employment, his right to make use of that housing shall continue throughout the period of his employment.
(2) The employee’s right to the use of housing under Subsection (1) is not affected during periods where he does not perform his work including–
(a) strikes and lay-offs; and
(b) illness and leave.
(3) Where the contract of an employee expires or is terminated, otherwise than by dismissal under Section 36(1), he may remain in the housing provided for a period not exceeding two weeks.
(4) Any agreement restricting the rights of an employee under this section is void.
PART IX. – HEALTH AND WELFARE.
An employer who knowingly requires an employee to perform work for which he is not physically fit is guilty of an offence.
Penalty: A fine not exceeding K500.00.
(1) At each place where an employer employs or accommodates–
(a) more than 800 employees and accompanying dependants–the employer shall provide–
(i) a medical practitioner; and
(ii) a medical aid; and
(b) not less than 400 but not more than 800 employees and accompanying dependants–the employer shall provide a medical aid or a health extension officer,
whose full time duty is the medical care of the employees and their accompanying dependants.
(2) At each place where an employer employs or accommodates–
(a) not less than 50 but not more than 400 employees and accompanying dependants–the employer shall provide a medical aid or a health extension officer; and
(b) not less than 10 but not more than 50 employees–the employer shall provide a person in possession of a current First Aid Certificate issued by the Department of Health, or higher medical qualifications.
(3) Subject to Subsection (4), the provisions of Subsections (1) and (2) do not apply to a place that is within reasonable distance from a hospital conducted by a medical practitioner, medical aid or nurse registered under the Medical Registration Act 1980, the services of whom are available to the employees and accompanying dependants.
(4) Subject to Subsection (5), a medical practitioner may, where he thinks fit, by written notice, declare that a place is a place to which Subsection (3) does not apply.
(5) The Secretary may, with the approval of the Secretary for Health, by written notice–
(a) exempt an employer wholly or in part from the provisions of Subsection (1) or (2) in respect of a place of employment; or
(b) modify those provisions in a particular case,
subject to any conditions he considers necessary in the circumstances.
(1) Subject to Subsections (2), (3) and (4), an employer shall provide in a convenient area–
(a) where less than 400 employees and accompanying dependants are employed or housed–a suitable, well-ventilated building for use as a sick ward; and
(b) where 400 or more employees and accompanying dependants are employed or housed–a building approved by the Secretary for Health or a medical officer for use as a hospital,
for the medical treatment of his employees and accompanying dependants.
(2) Subject to Subsection (3), Subsection (1) does not apply to a place–
(a) where less than 10 employees and accompanying dependants are employed or housed; or
(b) that is within a reasonable distance from a hospital conducted by a medical practitioner, medical assistant or nurse registered under the Medical Registration Act 1980, the services of which are available to the employees and accompanying dependants.
(3) Subject to Subsection (4), a medical practitioner may, by written notice declare a place to be a place to which Subsection (2) does not apply.
(4) The Secretary may, with the approval of the Secretary for Health, by written notice–
(a) exempt an employer wholly or in part from the provisions of Subsection (1); or
(b) modify those provisions in a particular case,
subject to any conditions he considers necessary in the circumstances and specifies in the notice.
(1) At the request of an employee or an accompanying dependant who resides at or adjacent to the place of employment, the employer shall make or cause to be made all necessary arrangements for the treatment or hospitalization of the employee or accompanying dependant, as the case requires.
(2) Medical and other treatment provided by the employer at the place of employment shall be free of charge to the employee.
(3) Subject to Subsection (4), all necessary medical and other treatment required by an employee employed under an attested contract and his accompanying dependants shall be provided by the employer free of charge to the employee.
(4) An employer shall not be liable under this section for the cost of medical and other treatment provided for an employee employed under an attested contract and his accompanying dependants where the illness or incapacity is treated at a place other than the place of employment and is–
(a) occasioned by neglect or fault; or
(b) due to the refusal or failure to use the medical aid provided by the employer,
by the employee or his accompanying dependants, as the case may be.
(5) Where an employer arranges for an employee or accompanying dependant to receive treatment or hospitalization, he shall, if the employee or accompanying dependant so desires–
(a) arrange necessary transport and other facilities; and
(b) take all reasonable steps to ensure the health, comfort and well-being of the employee or accompanying dependant during any travel that is necessary.
(6) Where hospital or other treatment is necessary, the employer shall provide the person responsible for the hospitalization or treatment with a written statement setting out–
(a) the name and address of the patient; and
(b) all details of the symptoms of the illness; and
(c) the nature of the treatment already given (if any); and
(d) any other details relevant to the illness; and
(e) the name and address of the employer.
(7) An employer shall comply with all reasonable directions given by a medical practitioner, medical assistant or health extension officer in relation to any matter affecting the health, treatment or hospitalization of an employee.
(1) Subject to Subsection (2), a labour officer shall not approve and attest a contract of service unless a medical officer or medical assistant has certified that the employee–
(a) is medically fit; and
(b) is physically able to perform the class of work for which he is employed; and
(c) is, in the opinion of the medical practitioner or medical assistant, of employable age.
(2) Where a medical practitioner or medical assistant is not available to conduct a medical examination for the purpose of providing a certificate under Subsection (1), a labour officer–
(a) may, if he is satisfied as to the apparent medical fitness, physical ability and age of the employee–approve the contract of service; and
(b) shall, if he approves the contract under Paragraph (a), endorse the contract noting the absence of a medical certificate.
(3) Where a contract of service is endorsed under Subsection (2)(b), the employer shall ensure that the employee is medically examined in accordance with Subsection (1) as soon as practicable after the commencement of employment.
(4) Where under Subsection (1), an employee is examined and found to be–
(a) medically unfit; or
(b) not of the required physical standard; or
(c) under the minimum employable age,
the employer shall comply with any directions of a medical practitioner, medical assistant or health extension officer as to the–
(d) variation or termination of the contract of service; or
(e) treatment or hospitalization of the employee.
(5) The cost of any medical examination required under this section shall be borne by the employer.
(1) Where an employer employs or accommodates–
(a) more than 200 employees and accompanying dependants, he shall nominate an employee whose sole duty is to oversee the general welfare of the employees and accompanying dependants; and
(b) more than 10 but less than 200 employees and accompanying dependants, he shall nominate an employee whose duties shall include the overseeing of the general welfare of the employees.
(2) The Minister may, in respect of a place of employment, by written notice–
(a) exempt an employer from the provisions of Subsection (1); or
(b) modify the provisions of that subsection in a particular case.
PART X. – OFFENCES.
A person who commits an act of fraud, misrepresentation, intimidation or coercion, or who uses undue influence for the purpose of–
(a) inducing an employee to enter into or refrain from entering into employment under this Act; or
(b) inducing an employer to engage for employment or refrain from engaging for employment under this Act, any employee; or
(c) inducing an employer or employee to refrain from exercising his rights under this Act; or
(d) misleading an employer or employee as to his rights, duties and responsibilities under this Act or under a contract of employment; or
(e) inducing an employer or employee to fail to carry out a duty under this Act or under a contract; or
(f) inducing a person to take action to terminate a contract,
is guilty of an offence.
Penalty: A fine not exceeding K500.00.
An employer or a member of the staff or family of an employer who uses undue influence to induce an employee or accompanying dependants to purchase goods from any person is guilty of an offence.
Penalty: A fine not exceeding K300.00.
An employment agent or worker-recruiter who engages an employee on behalf of an employer and who fails to take all reasonable steps to ensure that the person who proceeds to the place of employment is identical with the person engaged is guilty of an offence.
Penalty: A fine not exceeding K200.00.
(1) An employer who, for gain, places or permits to be placed, an employee employed by him under the immediate authority of a person other than–
(a) the employer; or
(b) a member of a firm or partnership of which the employer is a member; or
(c) a person employed by the employer,
is guilty of an offence.
Penalty: A fine not exceeding K300.00.
(2) A prosecution under Subsection (1) shall not be instituted without the consent of the Secretary.
(1) A person who–
(a) refuses or fails to answer any questions, or produce any books required, under this Act; or
(b) refuses to obey any order, direction or requirement lawfully made under this Act; or
(c) knowingly makes a false entry or unauthorized alteration or erasure in any books required to be kept under this Act,
is guilty of an offence.
Penalty: A fine not exceeding K200.00.
(2) Subsection (1) does not apply to a refusal or failure by an employee to comply with an order, direction or requirement made or given by an employer in his capacity as employer.
An employer who–
(a) refuses to supply any information reasonably required by an employee relating to his employment under this Act or the Industrial Relations Act 1962; or
(b) penalizes in any way an employee or accompanying dependants on account of any requirements of an employee under Paragraph (a),
is guilty of an offence.
Penalty: A fine not exceeding K200.00.
A person who falsely claims or represents himself to be the holder of any document issued, given or granted under this Act is guilty of an offence.
Penalty: A fine not exceeding K200.00.
A person who–
(a) hinders or obstructs an authorized officer in the execution of his duty; or
(b) uses abusive language or directly or indirectly threatens an authorized officer; or
(c) assaults an authorized officer in the execution of his duty under this Act; or
(d) impersonates an authorized officer; or
(e) falsely purports to be engaged in or associated with the administration of this Act; or
(f) refuses or fails to comply with any reasonable direction given by an authorized officer in the exercise or performance of his powers and functions under this Act; or
(g) directly or indirectly prevents a person appearing before or being questioned by an authorized officer,
is guilty of an offence.
Penalty: A fine not exceeding K300.00.
A person who contravenes or fails to comply with any provision of this Act is guilty of an offence, and where no other penalty is imposed is liable to a penalty not exceeding K100.00.
PART XI. – MISCELLANEOUS.
(1) Subject to Subsections (2) and (3), an authorized officer may at all reasonable times, both day and night, without notice, enter and inspect any industrial work place where work is in progress and may, at all reasonable times during the day, without notice–
(a) enter and inspect any place or building where he has reason to believe that an employee is employed or housed by an employer; and
(b) inspect and examine any sanitary arrangements used or intended to be used by employees in any place or building; and
(c) examine and take samples of any water supply available for the use of employees at any place or building; and
(d) ascertain whether in any place or building where persons are employed there is an adequate supply of suitable medicines and remedies provided for the use of employees; and
(e) enter, inspect and examine kitchens and places in which food provided for the use of employees is stored, prepared or eaten.
(2) An authorized officer other than an inspector appointed under the Mining Act 1992 or a mining engineer shall not enter and inspect a mine unless he is accompanied by an inspector or mining engineer.
(3) An authorized officer shall not enter a private dwelling house without–
(a) the consent of the occupier; or
(b) the authority of a magistrate.
(4) Where an authorized officer enters a place or building for the purposes of an examination or inspection, he shall notify the employer or his representative, unless he has reasonable grounds for believing that that notification may be prejudicial to the performance of his duties.
(5) Subject to Subsection (4), an authorized officer, if required by the employer, shall be accompanied on an inspection or examination by the employer or a representative of the employer.
(6) For the purpose of satisfying himself that the provisions of this Act are being observed, an authorized officer may at all reasonable times–
(a) interrogate, alone or in the presence of witnesses, the employer, any representative of the employer or any person employed by the employer, on any matter concerning the carrying out of the provisions of this Act; and
(b) make application for information to any other person whose evidence he considers necessary; and
(c) require the production of any books, and make copies or take extracts from them; and
(d) remove for analysis samples of materials or substances used or handled by an employee in the course of his occupation.
(7) Where, in the opinion of an authorized officer, a building or place where an employee is employed or housed is–
(a) insanitary; or
(b) in such a condition as to constitute a danger to health or is unfit for occupation or use,
the authorized officer may, by written notice, direct the employer or his representative to discontinue the occupancy or use from the date specified in the notice until–
(c) the requirements specified in the notice have been complied with; and
(d) the building or place, has been inspected by the authorized officer and certified to be fit for further occupation or use.
An authorized officer who, except in the course of his duties under this Act, directly or indirectly discloses or causes to be disclosed any matter relating to the business of any person that comes to his knowledge in the course of those duties is guilty of an offence.
Penalty: A fine not exceeding K200.00.
An authorized officer is not liable to any action, suit or other proceeding for any act or thing done or omitted to be done by him in good faith in the exercise of any power or the performance of any duty or function conferred or imposed on him by or under this Act.
The Secretary and any officer authorized by the Secretary for the purpose may–
(a) institute any proceedings for a breach or contravention of any provision of this Act; and
(b) appear in any proceeding referred to in Paragraph (a); and
(c) appear on behalf of an employee in any civil proceedings brought by that employee arising out of or in the course of the employment of that employee.
(1) The State may incur any expense on account of an employer in respect of an employee or accompanying dependant for any matter or thing for which the employer is liable under this Act.
(2) Where for any reason, expenditure is incurred by the State on account of an employer under Subsection (1), the expenditure shall–
(a) be a debt due to the State; and
(b) subject to Section 93(1) but notwithstanding any other law–be a first charge on the real and personal estate of the employer.
(3) In any proceedings for the recovery of a debt incurred under this section, the production of the account of the debt supported by a certificate of a labour officer stating that it is true and correct and relates to the expenditure actually incurred shall be prima facie evidence of the debt and the amount of the debt.
(4) Where an employer is adjudicated as insolvent, the debt incurred under this section, whether incurred before or after the adjudication, shall, notwithstanding any other law, be a first charge on the property divisible among his creditors.
An employer shall display prominently at each place of employment or housing provided by him all notices approved or made available by the Secretary relating to–
(a) employment conditions; and
(b) safety, health and welfare, of employees and accompanying dependants; and
(c) any other matters approved by the Secretary.
An employer shall keep at each place of employment or housing provided by the employer–
(a) books and pamphlets; and
(b) other articles,
approved or made available by the Secretary, which shall be made available to an employee at all reasonable times.
148A. A COPY OF THE ACT AND REGULATION TO BE KEPT.
[2]A copy of this Act and of the regulation and all amendments shall be kept by an employer at each place where five or more employees, employed by him, work and shall be made available for examination by any such employee on request.
(1) For the purposes of this section, “court” means the National Court or a District Court.
(2) In determining any question under this Act, other than in a criminal proceeding, a court shall be guided by equity and good conscience and is not bound by the rules of evidence and legal procedure.
(3) Any power conferred by or under any law in force in Papua New Guinea to make regulations or Rules of Court for regulating the practice and procedure of a court (other than the Supreme Court or the National Court) shall be deemed to include power to make regulations or Rules for the purposes of proceedings before the court under this Act.
(4) This section does not apply to a prosecution for an offence against, or contravention of, or failure to comply with, a provision of this Act.
(1) An employer may, by written notice to the Secretary, appoint a person in his full-time employment to have and perform any of the functions, duties and responsibilities of the employer under this Act in relation to his employees and accompanying dependants or any of them, as specified in the notice other than any function, duty or responsibility specifically imposed by this Act on the actual employer.
(2) For the purposes of this Act, the officer of–
(a) the State; or
(b) any authority constituted by or under a law in force in Papua New Guinea,
having immediate authority over an employee shall be deemed to have been appointed under this section to perform all the functions, duties and responsibilities of the State or authority, as the case may be, under this Act in relation to that employee.
(3) For the purposes of this Act, a person appointed or deemed to have been appointed under this section shall be deemed to be the employer in relation to the performance of the functions, duties and responsibilities for which he was appointed or deemed to have been appointed, but this section shall not be deemed to relieve the employer of any of his duties or responsibilities, whether civil or criminal, under this Act.
(4) Where a person appointed or deemed to have been appointed under this section is, by virtue of Subsection (3), charged with an offence against or contravention of this Act, it is a defence to the charge if he proves that, within the resources made available to him and the authority vested in him, he took all reasonable steps to ensure compliance with this Act.
The Head of State, acting on advice, may make regulations not inconsistent with this Act, prescribing all matters that by this Act are required or permitted to be prescribed, or that are necessary or convenient to be prescribed, for carrying out and giving effect to this Act, and in particular for prescribing–
(a) the returns, registers, records, books of account, forms and other documents to be made or kept by employers and other persons; and
(b) the fees and charges payable with respect to any matter under this Act; and
(c) the form of any permit, notice, form or other document issued or used under or for the purposes of this Act; and
(d) the manner of doing or performing anything required to be done or performed under this Act; and
(e) the imposition of fines not exceeding K100.00 for an offence against the regulations.
The Native Employment Act 1958 (Adopted) is repealed.
PART XII. – TRANSITIONAL.
Where, immediately before the commencement date a person was employed under an agreement under Part VII of the Native Employment Act 1958 (Adopted) that contract of service shall, on and after that date, be deemed to be an attested contract and shall have full force and effect under this Act for the balance of the period of employment specified in the contract.
(1) Subject to Subsection (2), where, immediately before the commencement date, a person was employed under a written contract of service otherwise than under the Native Employment Act 1958 (Adopted), that contract of service shall be deemed to be a contract of service entered into under Section 19(a) and shall have full force and effect under this Act for the balance of the period of employment specified in the contract.
(2) A term or condition of employment of a contract of service referred to in Subsection (1) that is less favourable to an employee than any of the conditions of employment prescribed by this Act is void to the extent that it is less favourable.
(1) A contract of service entered into by a person before the commencement date that–
(a) was void under the Native Employment Act 1958 (Adopted); and
(b) but for the fact that it was void under that Act would have been in existence immediately before that date; and
(c) would, in whole or in part, be a valid and effective contract if made under this Act,
shall be deemed to be a contract of service entered into by the employee and employer specified in the contract under this Act for the balance of the period of employment specified in the contract.
(2) A term or condition of employment of a contract of service referred to in Subsection (1) that is less favourable to an employee than any of the conditions of employment prescribed by this Act is void to the extent that it is less favourable.
SCHEDULE 1 – RATIONS.
Sec. 67(1), 70(c).
PART I – RATION SCALE.
Attention is particularly directed to the Explanatory Notes and Conditions following Item 10 relating to various units of the Scale.
Sch. 1.I.1. STAPLE.
| | Unit No. | Food is to be issued. | Minimum daily quantity. | Note. | ||||
|---|---|---|---|---|---|---|---|---|
| | 1. | Rice, brown | 450 g. | | ||||
| or | 2. | Rice, enriched white | 450 g. | | ||||
| or | 3. | Wheat or other cereal product | 450 g. | 1 | ||||
| or | 4. | Yam | 2 kg. | | ||||
| or | 5. | Taro | 2 kg. | | ||||
| or | 6. | Sweet potato | 2 kg. | | ||||
| or | 7. | Bananas (cooking) | 2 kg. | | ||||
| or | 8. | Breadfruit | 3 kg. | | ||||
| or | 9. | Bread-not less than 50% wholemeal | 700 g. | | ||||
| or | 10. | Biscuits | 450 g. | | ||||
| or | 11. | Wheatmeal flour-at least 90% extraction | 450 g. | 2 | ||||
| or | 12. | Sorghum Meal-straight run | 450 g. | 2 | ||||
| or | 13. | Cornmeal flour-at least 90% extraction | 450 g. | 2 | ||||
| or | 14. | Tapioca (fresh tuber) | 2 kg. | | ||||
| | | | and any one of the following:– | | | |||
| | | | | (a) | Peanuts-green | 100 g. | 3 | |
| | | | or | (b) | Peanuts-dry | 55 g. | 3 | |
| | | | or | (c) | Peas-dry | 55 g. | 3 and 4 | |
| | | | or | (d) | Beans-dry | 55 g. | 3 and 4 | |
| | | | or | (d) | Seeds of fresh mature peas or beans | 100 g. | 3 and 4 | |
| | | | or | (f) | Galip nuts | 100 g. | 3 | |
| | | | or | (g) | Okari nuts | 100 g. | 3 | |
| | | | or | (h) | Breadfruit nuts | 55 g. | 3 | |
| | | | or | (i) | Fresh pork-without bone | 55 g. | | |
| | | | or | (j) | Fresh pork-with bone | 85 g. | | |
| | | | or | (k) | Dark green leafy vegetables | 100 g. | 5 | |
| | | | or | (l) | Half of any unit of Item 3 excepting pork, plus 7 g. Marmite or 3.5 g. Vegemite or similar product to give 150 mg of Thiamin. | | | |
| or | 15. | Sago (native) | 1 kg. | 6 | ||||
| | | | and any one of the following:– | | | |||
| | | | | (a) | Peanuts-green | 200 g. | 3 | |
| | | | or | (b) | Peanuts-dry | 100 g. | 3 | |
| | | | or | (c) | Peas-dry | 100 g. | 3 and 4 | |
| | | | or | (d) | Beans-dry | 100 g. | 3 and 4 | |
| | | | or | (d) | Seeds of fresh mature peas or beans | 200 g. | 3 and 4 | |
| | | | or | (f) | Galip nuts | 200 g. | 3 | |
| | | | or | (g) | Okari nuts | 200 g. | 3 | |
| | | | or | (h) | Breadfruit nuts | 100 g. | 3 | |
| | | | or | (i) | Fresh pork-without bone | 125 g. | | |
| | | | or | (j) | Fresh pork-with bone | 185 g. | | |
| | | | or | (k) | Dark green leafy vegetables | 200 g. | 5 | |
| | | | or | (l) | Any one of the units of Item 3 excepting pork, plus 14 g. Marmite or 7 g. Vegemite or similar product to give 300 mg of Thiamin. | | | |
| or | 16. | Peanut paste and half the minimum daily quantity of any of the units numbered 1-13 in Item 1 | 140 g. | 13 | ||||
Sch. 1.I.2.TO GIVE VARIETY AND EXTRA CALORIES, PROTEIN, B VITAMINS AND IRON.
| | Unit No. | Food to be issued. | Minimum daily quantity. | Note. |
|---|---|---|---|---|
| | 1. | Peanuts-green | 200 g. | 3 |
| or | 2. | Peanuts-dry | 100 g. | 3 |
| or | 3. | Peas-dry | 100 g. | 3 and 4 |
| or | 4. | Beans-dry | 100 g. | 3 and 4 |
| or | 5. | Seeds of fresh mature peas or beans | 200 g. | 3 and 4 |
| or | 6. | Galip nuts | 200 g. | 3 |
| or | 7. | Okari nuts | 200 g. | 3 |
| or | 8. | Breadfruit nuts | 100 g. | 3 |
| or | 9. | Wheatmeal flour-at least 90% extraction | 170 g. | |
| or | 10. | Rice, brown | 170 g. | |
| or | 11. | Sorghum-whole grain or straight run meal | 170 g. | |
| or | 12. | Corn-whole grain, or meal at least 90% extraction | 170 g. | |
| or | 13. | Bread-not less than 50% wholemeal | 200 g. | |
| or | 14. | Biscuits | 170 g. | |
| or | 15. | Wheat or other cereal product uncrushed | 170 g. | 1 |
Note As it is advisable to give a variety of food, employers shall not issue under Item 2 any commodity issued for the same period under Item 1, except where an absolute shortage of food makes the duplicate issue unavoidable. As an example, if brown rice is issued under Item 1, it shall not also be issued under Item 2 unless all other food units of Item 2 are unprocurable.
Sch. 1.I.3.PROTEIN.
| | Unit No. | Food to be issued. | Minimum daily quantity | Note |
|---|---|---|---|---|
| | 1. | Meat, canned or kegged-containing not less than 18% protein and not less than 90% meat | 95 g. | |
| or | 2. | Meat, canned or kegged containing between 12% and 18% protein | 140 g. | |
| or | 3. | Fresh beef, goat, wallaby, turtle or other game meat-without bone | 125 g. | |
| or | 4. | Fresh beef, goat, wallaby, turtle or other game meat-with bone | 185 g. | |
| or | 5. | Fresh pork-without bone | 125 g. | |
| or | 6. | Fresh pork-with bone | 185 g. | |
| or | 7. | Fresh mutton-without bone | 150 g. | |
| or | 8. | Fresh mutton-with bone | 200 g. | |
| or | 9. | Fish, canned-containing at least 12% protein | 140 g. | |
| or | 10. | Fish, salt-hard dry | 85 g. | |
| or | 11. | Fish, fresh-edible portion to weigh | 125 g. | 7 |
| or | 12. | Shell fish-in shell, to give after removal of shell | 150 g. | |
| or | 13. | Crabs, lobsters or crayfish-with shell | 600 g. | |
| or | 14. | Birds or poultry-with bone and feather | 150 g. | |
| or | 15. | Cheese | 95 g. | 8 |
| or | 16. | Eggs (in shell) | 170 g. | 9 |
| or | 17. | Peanut paste and half the minimum daily quantity of any of the units numbered 1-16 in Item 3 | 30 g. | 13 |
Note Employers issuing fresh meat or fresh fish need not necessarily do so daily, but shall issue it at least three times per week.
Sch. 1.I.4.FAT.
| | Unit No. | Food to be issued. | Minimum daily quantity. | Note. |
|---|---|---|---|---|
| | 1. | Animal fat | 30 g. | |
| or | 2. | Margarine | 30 g. | |
| or | 3. | Coconut meat | 55 g. | |
| or | 4. | Coconut oil, peanut oil or other edible oil or fat | 30 g. | |
| or | 5. | Red palm oil | 30 g. | |
| or | 6. | Peanuts-green | 100 g. | 3 |
| or | 7. | Peanuts-dry | 55 g. | 3 |
| or | 8. | Galip nuts | 100 g. | 3 |
| or | 9. | Okari nuts | 100 g. | 3 |
| or | 10. | Soya beans-dry | 100 g. | 3 and 4 |
| or | 11. | Fresh pork-without bone | 125 g. | |
| or | 12. | Fresh pork-with bone | 200 g. | |
| or | 13. | Fresh mutton-without bone | 150 g. | |
| or | 14. | Fresh mutton-with bone | 200 g. | |
| or | 15. | Double quantities of Units 1, 2, 3 or 4 of Item 3 | | |
| or | 16. | Cheese, full milk | 95 g. | 8 |
| or | 17. | Eggs (in shell) | 170 g. | 9 |
Note Where any of the above units of Item 4 have been issued under any other Item of the Scale, the issue under Item 4 need not necessarily be made. As an example, if fresh pork has been issued as part of Unit 14 of Item 1 or as Unit 6 or 7 of Item 3, sufficient fat has been provided and a further issue of any unit under Item 4 is optional.
Sch. 1.I.5.CALORIES IN A SWEET FORM.
| | Unit No. | Food to be issued. | Minimum daily quantity. | Note. |
|---|---|---|---|---|
| | 1. | Sugar | 65 g. | 10 |
| or | 2. | Sugar cane | 450 g. | 10 |
| or | 3. | Juice extracted from 450 g. sugar cane | | 10 |
| or | 4. | Treacle | 85 g. | 10 |
| or | 5. | Molasses | 85 g. | 10 |
| or | 6. | Honey | 85 g. | 10 |
| or | 7. | Golden Syrup | 85 g. | 10 |
Note If under Item 9 an issue is made of either Units 1, 2 or 3, the issue made under Item 5 shall include at least 30 g. of sugar, with the balance being made up of an appropriate portion of any of the Units 2 to 7 of Item 5.
Sch. 1.I.6.VITAMIN C.
| | Unit No. | Food to be issued. | Minimum daily quantity. | Note. |
|---|---|---|---|---|
| | 1. | Citrus fruit | 100 g. | |
| or | 2. | Papaw, green-for cooking | 300 g. | |
| or | 3. | Papaw, ripe | 85 g. | |
| or | 4. | Passionfruit, mango, tomatoes, soursop or cantaloup | 200 g. | |
| or | 5. | Pineapple | 170 g. | |
| or | 6. | Watermelon or pumpkin | 1 kg. | |
| or | 7. | Capsicum | 8 g. | |
| or | 8. | Pit pit | 200 g. | |
| or | 9. | Dark green leafy vegetables | 100 g. | 5 |
| or | 10. | Sweet potato or English potato | 285 g. | |
| or | 11. | Tapioca (fresh tuber) | 450 g. | |
| or | 12. | Bananas, green or ripe | 450 g. | |
| or | 13. | Citrus fruit juice-canned | 90 ml. | |
| or | 14. | Tablets containing at least 25 mg ascorbic acid | 11 | |
| or | 15. | Persimmon leaves-fresh or dried | 8 g. | |
| or | 16. | Guava | 30 g. | |
Note Where any of the units of Item 6 have been issued under any other Item of the Scale, the issue under Item 6 need not necessarily be made. As an example, if sweet potato has been issued as Unit 6 of Item 1, sufficient Vitamin C has been provided and a further issue of any unit under Item 6 is optional.
Sch. 1.I.7.VITAMIN A.
| | Unit No. | Food to be issued. | Minimum daily quantity. | Note. |
| | 1. | Dark green leafy vegetables | 100 g. | 5 |
| or | 2. | Sweet potato-yellow | 450 g. | |
| or | 3. | Red palm oil | 30 g. | |
| or | 4. | Cod liver oil | 1 dessert-spoon | 12 |
| or | 5. | Oily solution or tablets to give 5,000 I.U. Vitamin A | | |
| or | 6. | Margarine-fortified with Vitamin A to give 80 I.U. per g. | 30 g. | |
| or | 7. | Cheese full milk | 95 g. | 8 |
| or | 8. | Pumpkin, together with half of any unit of Item 7 | 1 kg. | |
Note Where any of the units of Item 7 have been issued under any other Item of the Scale, the issue under Item 7 need not necessarily be made. As an example, if a dark green leafy vegetable has been issued under Item 1 or 6, sufficient Vitamin A has been provided and a further issue of any unit under Item 7 is optional.
Sch. 1.I.8.SALT.
| | Unit No. | Food to be issued. | Minimum daily quantity. | Note. |
|---|---|---|---|---|
| | 1. | Salt | 14 g. | |
Sch. 1.I.9.BEVERAGES.
| | Unit No. | Food to be issued. | Minimum daily quantity. | Note. |
|---|---|---|---|---|
| | 1. | Tea | 8 g. | 10 |
| or | 2. | Coffee | 15 g. | 10 |
| or | 3. | Cocoa | 15 g. | 10 |
| or | 4. | Vegemite-to be consumed in water | 14 g. | |
| or | 5. | Marmite-to be consumed in water | 14 g. | |
| or | 6. | Meat extract-to be consumed in water | 14 g. | |
| or | 7. | Vegetable water beverage, made from at least 100 g green vegetables or 450 g root vegetables | | |
| or | 8. | Citrus persimmon or other suitable leaves to be made into a beverage | 55 g. | |
Note If either Units 4, 5, 7 or 8 have been issued under any other Item of the Scale, the issue of any unit under Item 9 is optional.
Sch. 1.I.10.WATER.
| | Unit No. | Food to be issued. | Minimum daily quantity. | Note. |
|---|---|---|---|---|
| | 1. | Potable water | 5 l | |
Sch. 1.I.11.EXPLANATORY NOTES AND CONDITIONS.
| Note No. | Details. | Item No. | Unit No. |
|---|---|---|---|
| 1. | Wheat or other cereal produce– Thiamin content to be at least 200 mg per 100 g | | |
| | | 1 | 3 |
| | | 2 | 15 |
| 2. | Wheatmeal flour-Unless baked into bread before issue, a rising agent such as baking powder to be issued-30 g to each 450 g meal. Sorghum meal-Unless baked into bread before issue, a rising agent such as baking powder to be issued-30 g to each 450 g meal. Cornmeal flour-Unless baked into bread before issue, a rising agent such as baking powder to be issued-30 g to each 450 g meal. | | |
| | | 1 | 11 |
| | | 1 | 12 |
| | | 1 | 13 |
| 3. | Foods which have to be removed from a shell or pod before consumption.-The quantities prescribed for issue are the edible content remaining after the removal of shell or pod. Where any of the units are
issued in the shells or pods, the quantities issued shall be sufficient to provide the prescribed edible content. | | |
| | | 1 | 14(a)-(h) |
| | | 1 | 15(a)-(h) |
| | | 2 | 1-8 |
| | | 4 | 6-10 |
| 4. | Peas and Beans, dry, and fresh mature seed.-Any variety of edible peas or beans are permissible, including soya beans. | | |
| | | 1 | 14(c)-(e) |
| | | 1 | 15(c)-(e) |
| | | 2 | 3-5 |
| | | 4 | 10 |
| 5. | Dark green leafy vegetables.-Spinach, silver beet, Chinese cabbage, watercress, kale, pumpkin tips, taro leaves, sweet potato leaves, cow pea leaves, ibika or
other native greens. | | |
| | | 1 | 14(k) |
| | | 1 | 15(k) |
| | | 6 | 9 |
| | | 7 | 1 |
| 6. | Sago (native).-The quantity prescribed for issue is for wet sago, if dry sago is used, 450 g only is necessary. | | |
| | | 1 | 15 |
| 7. | Fish, fresh.-It is not necessary that fish be filleted before issue, but due allowance must be made for the weight of the inedible portion (including
gut, head and tail), so that the issue made comprises at least 125 g of edible portion. | | |
| | | 3 | 11 |
| 8. | Cheese.-Only varieties made from whole milk such as Cheddar, may be issued under Items 4 and 7, but skim milk cheese may be issued under
Item 3. | | |
| | | 3 | 15 |
| | | 4 | 16 |
| | | 7 | 7 |
| 9. | Eggs.-Any variety of edible eggs may be issued. | | |
| | | 3 | 16 |
| | | 4 | 17 |
| 10. | Sugar, Tea, Coffee and Cocoa.-If under Item 9 an issue is made of either Units 1, 2 or 3, at least half the quantity of sugar prescribed under Item 5 must be
issued, with the balance being made up of an appropriate portion of any of the Units 2 to 7 of Item 5. | | |
| | | 5 | 1-10 |
| | | 9 | 1-3 |
| 11. | Ascorbic Acid.-It is preferable that this be obtained from a natural source such as fresh fruit or vegetables. When these are available, they shall
be issued for Item 6 in preference to tablets containing ascorbic acid. | | |
| | | 6 | 14 |
| 12. | Cod Liver Oil.-Can be given less frequently, at the rate of three tablespoons weekly instead of the prescribed daily issue. | | |
| | | 7 | 4 |
| 13. | Peanut paste– | | |
| | (a) where peanut paste is issued in accordance with Item 1 it shall not be issued under Item 3; and | | |
| | | 1 | 16 |
| | (b) where peanut paste is issued in accordance with Item 3 it shall not be issued under Item 1. | | |
| | | 3 | 17 |
PART 2 – STANDARDS AND SPECIFICATIONS.
Sch. 1.2.1. Interpretation of Schedule 1..
For the purpose of this Schedule–
“broken kernel” means a particle of rice consisting of less than 50% of a grain;
“brown rice” means the grain of Oryza sativa obtained by removing the hulls only from first-class Paddy Rice which has been properly matured and dried;
“enriched white rice” means the grain of Oryza sativa obtained by removing all the bran coat and germ from brown rice or undermilled rice, enriched with Vitamins of the B complex.
Sch. 1.2.2.Specification of biscuits..
Biscuits issued under Item 1 or Item 2 of the Ration Scale shall–
(a) be made of–
(i) flour which consists of at least 50% wholemeal flour; or
(ii) ingredients having a Thiamin content of at least 300 mg per 100 g weight of dry ingredients; and
(b) contain not more than 3% by weight of sugar; and
(c) weigh not more than 55 g. each.
Sch. 1.2.3.Specification of rice..
Brown rice and enriched white rice issued under Item 1 and brown rice issued under Item 2 of the Ration Scale shall–
(a) be free of hulls, dirt, dust, straw, musty or mouldy grain and foreign seeds; and
(b) contain not more than 30 parts per centum of broken kernels; and
(c) contain not more than 3 parts per centum of red grain; and
(d) contain not more than 14.5 parts per centum of moisture content; and
(e) have a Thiamin content of not less than–
(i) 200 micrograms per 100 g weight, if brown rice; or
(ii) 300 micrograms per 100 g weight, if enriched white rice.
Sch. 1.2.4.Specification of margarine..
Margarine issued under Item 4 or Item 7 of the Ration Scale may be either cooking or table margarine manufactured from either animal fats or vegetable oils, but when issued under Item 7 shall be fortified with Vitamin A to give at least 80 International Units per gram weight.
Sch. 1.2.5.General standards..
All food and packages of food issued or used or held for issue shall conform with the requirements and standards of the Food Sanitation Act 1991 and the Commerce (Trade Descriptions) Act 1952 and the regulations made under them.
Office of Legislative Counsel, PNG
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