Section 42 of the Employment Act (Chapter 373) extends the repatriation duty to the family who travelled with the worker. It is one of the more practically important provisions in the Act, and one of the least known.
Who is an “accompanying dependant”
In relation to a married employee, the spouse and children under the age of 16 who, with the employer’s consent, reside with the employee:
— in housing provided by the employer; or
— near the place of employment, where that place is more than 25 kilometres from their ordinary place of residence.
Three elements do the work: the relationship, the employer’s consent, and residence in employer housing or near a place of employment more than 25 km from home.
The employer’s consent is part of the definition, so it is worth having in writing from the start — in the contract, in the section 15 record, or in a letter. Where dependants live in employer housing, the housing allocation itself is usually evidence of consent.
The definition also matters for food rations, housing and medical treatment, each of which extends to accompanying dependants.
Section 42(1) — the entitlement
Where dependants have been brought to the place of employment by the employer, an employment agent or a worker-recruiter acting on the employer’s behalf, and the employee becomes entitled to repatriation or dies, the accompanying dependants shall 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.
So the dependants’ entitlement is derivative but independent in operation:
- It is triggered by either the employee becoming entitled to repatriation under section 40 or the employee dying.
- The same precondition applies — the employer (or its agent or recruiter) must have brought them.
- The expenses are measured by section 41: travelling expenses where suitable transport is not provided, subsistence rations for the journey, and subsistence for the waiting period between termination and departure.
Section 42(2) to (4) — the election where the employee dies
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.
Where the election is made, the employer is liable for the expenses to that place of abode only to the extent that it would have been liable for repatriation to the place of engagement.
So the election redirects the journey but does not increase the employer’s bill. If the chosen destination is further or dearer, the difference falls on the family. Compare the two costs before electing.
This provision recognises a common situation: a worker engaged in one town whose family in fact comes from, and will return to, somewhere else entirely. See what happens when an employee dies, including section 42A on the coffin and the transport of the body.
Where the employer may be exempted
Section 42 is expressly subject to section 43. A labour officer may exempt the employer from all or part of the expenses where satisfied that:
- the employee does not wish to exercise the right, or has settled elsewhere at his request or with his consent, or without reasonable cause did not avail himself of the right within three months of becoming entitled;
- there was just cause for termination under section 36(1) and the employee had not completed 12 months’ continuous service under the contract; or
- the employee or the accompanying dependant enters into a contract of service with another employer.
An employer or employee aggrieved by a labour officer’s decision may report the matter as an industrial dispute under the Industrial Relations Act (s 43(2)). See who pays for repatriation.
Exemption is available where the accompanying dependant — not only the employee — takes up employment with another employer. A spouse who starts work locally may therefore affect the family’s repatriation position.
Transport standards apply to the family too
Section 44 speaks of “any person entitled to repatriation by the employer under this Division”, which includes dependants. So where the employer provides the transport, a labour officer may direct that any vehicle or vessel is suitable and safe, in good sanitary condition and not overcrowded, and that suitable accommodation is provided if the journey is broken overnight.
Checklist for a family
- Confirm the dependants fall within the section 1 definition — relationship, employer’s consent, residence.
- Establish who brought them — tickets, the recruiter’s name, the housing allocation.
- Claim in writing at the same time as the employee’s own claim.
- Include subsistence for the journey and the waiting period.
- Where the employee has died, consider the section 42(2) election — and check the section 42(4) cost cap before making it.
- Do not wait — the three-month exemption in section 43 applies.
- If exemption is granted and you disagree, ask about reporting it as an industrial dispute under section 43(2).
- Get advice — the Public Solicitor, or a firm from the law firms directory.
Sources
- Employment Act (Chapter 373) — ss 1, 27, 40–46; Part III Division 7
- Industrial Relations Act — PacLII 1986 Revised Edition
- Kinaram v Vanimo Forest Products Ltd [2011] PGNC 137; N4413
Before relying on anything here, read the current text of the Employment Act (Chapter 373) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.