The penalties in the Employment of Non-Citizens Act 2007 are an order of magnitude larger than those in the Employment Act (Chapter 373), where the maximum is K500.
The offences and their penalties
| Section | Offence | Maximum penalty |
|---|---|---|
| 6(1) | Employer employing a non-citizen without a valid work permit for that employer, non-citizen and occupation | K20,000.00 |
| 6(2) | Non-citizen employed without such a permit | K10,000.00 |
| 6(3) | Self-employed non-citizen working without a permit | K10,000.00 |
| 11(2) | Breaching a condition of a work permit | K10,000.00 |
| 35(2) | Failing to produce the permit or card on demand | K1,000.00 |
| 36(2) | Failing to return the permit or card within 14 days of cancellation or termination | K1,000.00 |
| 39(4) | Failing, without reasonable excuse (proof on the person), to produce the employer’s register | K1,000.00 |
| 46 | Failing to comply with Part X — repatriation | K10,000.00 |
| 48(4) | Refusing information, giving false information, obstructing or impersonating an authorised officer | K5,000.00 or six months’ imprisonment |
| 57 | General penalty where no specific penalty is provided | K1,000.00 |
| Regulation | Offences against the Regulation (s 61(b)) | Up to K5,000.00 |
Breaching a permit condition costs up to K10,000.00 — and under section 54(2), compliance with any other law applying to the employer and the non-citizen is deemed to be a condition of every work permit. A breach of the Employment Act, of migration or tax law, or of professional registration requirements can therefore be prosecuted as a permit-condition breach, and is a ground for cancellation under section 31(1)(b).
Section 56 — liability of company officers
Where an offence against this Act committed by a corporation is proved to have been committed with the consent or connivance of any director, manager, secretary or other officer of the corporation, that person, as well as the corporation, shall be deemed to have committed the offence.
Personal liability attaches on proof of consent or connivance. It is a reason for boards to satisfy themselves that permits are current, that the employer’s register is kept at the principal place of business, and that repatriation liabilities are provided for.
Section 58 — infringement notices
The Secretary may serve an infringement notice, in the prescribed form, where it appears that a person has committed an offence under sections 6, 11, 35, 36 and 39.
The notice is to the effect that, if the person does not wish to have the matter determined by a court, they may pay, within the time and to the person specified, the amount specified — which must not exceed the maximum penalty for the offence.
An infringement notice is an option, not a determination. The person served may elect to have the matter determined by a court instead. Where the facts are disputed — particularly on section 6, with its K20,000 maximum — that election is worth considering with advice.
Section 59 — who prosecutes, and where
(1) Subject to the approval of the Public Prosecutor, the Secretary or an officer authorised by the Secretary may institute and appear in prosecutions or proceedings for a breach of the Act.
(2) Where instituted by an authorised officer, the proceeding is, in the absence of evidence to the contrary, deemed to have been instituted by the authority of the Secretary.
(3) Written evidence purporting to be signed by the Secretary authorising an officer is admissible and shall be accepted as evidence of that authority.
(4) Proceedings may be instituted (a) in the National Court; or (b) in the District Court where the penalty amount does not exceed K10,000.00.
(5) Proceedings may be instituted in the name of the Secretary.
The requirement for the Public Prosecutor’s approval is a meaningful filter. Note the jurisdictional line in subsection (4): a section 6(1) charge against an employer, with its K20,000 maximum, exceeds the District Court threshold and belongs in the National Court.
Section 50 — the Work Permit Trust Account
The Work Permit Trust Account, established under the repealed 1978 Act, continues in existence. 50% of all fees and penalties paid under this Act are paid into it, and amounts are paid out as the Secretary considers appropriate for improving and making more effective the administration and implementation of this Act.
Payments for other purposes require the prior written approval of the Departmental Head responsible for treasury. The Secretary administers the account and must furnish monthly statements and summaries to the Department responsible for financial management.
The incentives, not only the penalties
- Section 51 — the Minister, on the Secretary’s advice, may exempt an employee, self-employed non-citizen or employer (or a class) from all or any provisions, by National Gazette notice which shall state the reasons, unconditionally or on conditions.
- Section 52 — the Minister may declare an employer a Good Corporate Citizen of Papua New Guinea by National Gazette notice, with benefits prescribed by Regulation.
- Section 55 — the Secretary may issue guidelines, not inconsistent with the Act, for employers and self-employed persons applying for permits. Ask for the current guidelines before applying.
- Section 26(1)(b) — on renewal, the Secretary may weigh the employer’s commitment to the training and development of Papua New Guineans.
Reducing the risk
- Never let anyone start work before the permit is granted — section 18 requires the application before engagement, and section 6(1) carries K20,000.
- Match permit to person, employer and occupation — permits are not transferable.
- Read and diarise the conditions, and remember section 54(2) adds every other applicable law.
- Keep the employer’s register at the principal place of business and produce it on demand.
- Return permits and cards within 14 days of cancellation or termination.
- Provide for repatriation from day one — the liability arises however the employment ends.
- Co-operate with authorised officers — section 48(4) is the only imprisonment offence in the Act.
- Escalate to advice early — the Public Solicitor, or a firm from the law firms directory.
Sources
- Employment of Non-Citizens Act 2007 — ss 6, 11, 18, 26, 31, 35, 36, 39, 46, 48, 50–61
- Employment Act (Chapter 373)
- Migration Act (Chapter 16)
- Constitution — ss 41, 59
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.