Section 51 of the Employment Act (Chapter 373) is three subsections long and answers three different questions.
Section 51(1) — a reasonable amount
Subject to this Division, an employer may require an employee to work a reasonable amount of overtime.
Two limits are built in. The overtime must be reasonable, and the power is subject to the rest of Division 2 — which means:
- the 12-hour daily maximum in section 49(1), exceeded only in the section 50 situations;
- the meal and rest periods in section 49(2);
- the weekly 24-hour rest in section 49(3), which under section 49(4) is in addition to any time off in lieu; and
- section 49(5) — no stand-by duty during a rest period.
The Act does not define it. In practice the relevant considerations are the amount and frequency of the overtime, the notice given, the nature of the work, the employee’s health and family responsibilities, whether the need was foreseeable, and whether the pay is being made on time under section 55. Overtime that is habitual rather than occasional, or that regularly eats the weekly rest period, is difficult to defend as reasonable.
Section 51(2) — Sundays and public holidays require agreement
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 organisations.
This is an exception to section 51(1). On a Sunday or public holiday the employer cannot simply require the work — it needs agreement, either individually or through the registered industrial organisations under the Industrial Relations Act.
Remember that for an employee not on shift work, all time worked on a Sunday or public holiday is overtime by definition (s 48), regardless of how few hours were worked that week. So section 51(2) governs the whole of Sunday work, not just the hours beyond eight.
Section 45 of the Constitution protects freedom of conscience, thought and religion. Where an employee objects to Sunday work on religious grounds, section 51(2) means the employer has no power to compel it in any event.
Section 51(3) — the fatigue rule
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 of 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.
And: this subsection shall not be deemed to limit any liability of an employer to an employee or to any other person.
Four features make this a strong provision:
- “Notwithstanding” — it overrides both the power to require overtime and any agreement to work it. An employee cannot consent their way around it.
- “Require or permit” — allowing a willing worker to keep going is as much a breach as ordering it.
- “May cause” fatigue — the test is risk, not proof of actual impairment.
- The final words preserve civil liability, so compliance with the subsection is a floor, not a defence.
The provision is directed at crane and winch operators, plant and heavy vehicle operators, and anyone whose careless use of equipment may endanger others — a wide field in mining, construction, forestry, ports and transport. Compare the general safety architecture in section 5 (the Minister may declare work to be heavy labour) and section 104 (employment of young persons under injurious conditions).
Overtime must be paid, and paid on time
| Section | Obligation |
|---|---|
| 52(2) | 1.5× the hourly rate; 2× on a Sunday; the hourly rate in addition to holiday pay on a public holiday |
| 52(5) | Time off in lieu is possible by agreement, at least equal in length, within the section 55 time |
| 55 | Payment no later than seven days after the next normal pay day, or on termination, whichever comes first |
| 56 | Work on Good Friday or Christmas Day — overtime pay and equivalent time off within seven days |
| 57 | The employer must keep records of overtime, stand-by and call-out |
| 82(b) | The pay statement must show pay for overtime, call-out and stand-by separately |
Refusing overtime — and the risk
Refusing a lawful and reasonable instruction is a ground for summary dismissal under section 36(1)(a)(i). But the instruction must be both lawful and reasonable, so a direction to work is not one where it would:
- take the day beyond 12 hours outside a section 50 situation;
- encroach on a rest period under section 49;
- be Sunday or public holiday overtime without agreement (s 51(2)); or
- create a fatigue risk in dangerous work (s 51(3)).
If you decline on one of these grounds, say which ground, put it in writing, and keep a copy.
Practical steps
- Keep your own daily record of hours and breaks.
- Check the section 48 definition before accepting that hours are “ordinary” — Saturday afternoon and Sundays count.
- For Sunday or holiday work, confirm the agreement in writing.
- Watch the section 55 deadline — overtime is payable within seven days of the next normal pay day.
- Ask for the section 57 records if the figures do not match.
- Raise fatigue concerns in writing in dangerous work, and keep the copy.
Sources
- Employment Act (Chapter 373) — ss 5, 36, 48–57, 82, 104; Part IV Division 2
- Constitution — s 45
- Industrial Relations Act — PacLII 1986 Revised Edition
- Porgera Joint Venture v Kami [2010] PGSC 11; SC1060
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.