The Employment Act (Chapter 373) is the statute that sets the floor beneath employment in Papua New Guinea. Its long title is modest — an Act relating to the employment of certain persons — but its reach is not.
The twelve Parts
| Part | Subject |
|---|---|
| I | Preliminary — definitions, application, exemption |
| II | Administration — the Departmental Head, labour officers and authorised officers |
| III | Contracts of employment — casual workers, oral and written contracts, piece rates, termination and repatriation |
| IV | Conditions of employment — hours and overtime, recreation leave, sick leave, food rations, clothing |
| V | Payment and protection of wages |
| VI | Employment of females and young persons |
| VII | Recruiting and employment agents |
| VIII | Housing |
| IX | Health and welfare |
| X | Offences |
| XI | Miscellaneous |
| XII | Transitional |
The rule that matters most
The Act provides that a provision of a contract of service 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.
Three consequences follow, and they are the practical heart of the statute:
- The Act sets a floor, not a ceiling. A contract may give an employee more than the Act requires. It cannot give less.
- Only the offending part falls away. The term is void to the extent it is less favourable — the rest of the contract stands.
- Signing does not cure it. An employee who agreed to worse terms is not bound by them. Consent is irrelevant to the operation of the section.
Read the contract, then read the Act, then ask whether the contract gives less than the Act on that point. If it does, the Act governs.
Section 2 — the Act binds the State
This Act binds the State and every authority and instrumentality of the State. Public employers are not outside it.
That said, section 3(1)(b) provides that, except where specifically provided otherwise, the Act does not apply to employment under any other law in force in the country. Public servants employed under the Public Services (Management) Act 1995 are therefore governed by that scheme.
Sections 3 and 4 — application and exemption
Section 3 excludes two situations:
- (1)(a) employment by the State in carrying in the vicinity of one’s village from day to day; and
- (2) the engagement of a school pupil in part-time work necessary for or incidental to cleaning the school or its grounds — or, for a boarder, growing food for teachers and pupils. That is deemed not to be employment for the Act’s purposes.
The Minister may, by notice in the National Gazette, exempt from all or any provisions of the Act:
(a) any person whose wages exceed the prescribed amount; or
(b) any person or class of persons, or any occupation, trade or industry, specified in the notice.
Paragraph (a) is the significant one: higher-paid employees can be lifted out of the Act’s protections by gazettal. Check the National Gazette for exemptions applying to your industry or wage level before relying on a provision.
Definitions that decide cases
- “Contract of service” — any agreement, whether oral or in writing, express or implied, by which one person agrees to employ another as an employee and that other agrees to serve as an employee. Note how wide this is: no writing is required for the Act to apply.
- “Employee” — a person serving another under a contract of service, and includes a prospective employee.
- “Employer” — a person who employs another under a contract of service, and includes a prospective employer.
- “Attested contract” — a contract made under section 19(b), which attracts additional protections. See attested contracts.
- “Accompanying dependants” — for a married employee, the spouse and children under 16 who, with the employer’s consent, reside with the employee in employer housing, or near the place of employment where it is more than 25 km from their ordinary residence. This matters for repatriation and rations.
Because “employee” and “employer” include prospective parties, obligations can attach before work starts — which matters for recruitment, written contracts and the rules on worker-recruiters and employment agents in Part VII.
Enforcement — authorised officers
Part II establishes the administration, and section 142 gives authorised officers — labour officers, medical practitioners and medical assistants appointed under section 8 — substantial inspection powers: to enter and inspect an industrial work place where work is in progress, at all reasonable times day or night, without notice; and by day, without notice, to enter and inspect places where employees are employed or housed, inspect sanitary arrangements, take samples of the water supply, check the supply of medicines, and inspect kitchens and food stores.
Two limits: an authorised officer may not enter a mine unless accompanied by an inspector or mining engineer appointed under the Mining Act, and may not enter a private dwelling house without the occupier’s consent or other lawful authority.
Sources
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.