Unpaid wages are dealt with in several places in the Employment Act (Chapter 373). Section 96 makes non-payment an offence; section 93 gives wages priority; sections 145, 146 and 149 supply the enforcement machinery.
Section 96 — failure to pay wages
(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 as they become due; or
(b) without reasonable excuse, fails on demand to pay in accordance with Part V any wages due and payable; or
(c) makes any deductions from wages other than those authorised under Part V; 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.
Paragraph (a) is worth pausing on. It catches an employer who continues employing workers without reasonable grounds for believing it can pay them — a business trading on while wages accrue unpaid. It bites before the money runs out entirely.
Paragraph (b) turns on a demand. Make one, in writing, dated, itemised, and keep proof of delivery. Without a demand, paragraph (b) has nothing to work on.
Section 93 — wages have priority over other debts
(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 ordinary process of law.
Four months is a substantial preference, and it matters most when the business is failing. It is reinforced by section 146(2)(b): State expenditure incurred on an employer’s account becomes a first charge on the employer’s real and personal estate subject to section 93(1) — that is, the employees’ wage priority is preserved ahead of it. On insolvency, the general scheme is in the Insolvency Act (Chapter 253), and for companies in the Companies Act 1997.
Section 90 — deferred wages on demand
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 his behalf.
And section 85 provides that a payment of deferred wages made otherwise than in accordance with Part V is not a valid discharge to the employer — so an irregular payment leaves the debt standing. On an attested contract, deferred wages may be retained by the employer only where a court authorises it under section 38(1)(a)(ii).
Section 90(2) requires repatriation deductions to be refunded in full after the earlier of the contract’s expiry or two years from engagement, or on termination under section 35 or 36 — with a limited exception on a section 36(1) dismissal.
The enforcement machinery
| Section | What it provides |
|---|---|
| 145(a), (b) | The Secretary, or an authorised officer, may institute and appear in proceedings for a breach of the Act |
| 145(c) | The Secretary may appear on behalf of an employee in the employee’s own civil proceedings |
| 142 | An authorised officer may enter and inspect an industrial work place day or night, without notice |
| 83(2)(b) | The wages register must be available for inspection by a labour officer at all reasonable times |
| 146 | The State may incur the expense on the employer’s account and recover it as a first charge |
| 149(2) | A court determining a non-criminal question under the Act is guided by equity and good conscience and not bound by the rules of evidence |
| 36(2)(a)(iv) | The employee may terminate without notice for conduct inconsistent with the employer’s obligations |
| 40(1)(d)(ii) | Repatriation is owed where termination results from the employer’s failure to comply with the contract |
Proving what you are owed
- The section 82 pay statements — gross, overtime, extras, deductions with reasons, net, and the pay period date.
- The section 83 wages register, which a labour officer may inspect.
- The contract or the section 15(1) record. If the employer cannot produce the record, section 15(2) makes your statement of the terms conclusive, unless it satisfies the Secretary or an Arbitration Tribunal otherwise.
- The section 57 records of overtime, stand-by and call-out.
- Your own dated notes of hours worked — admissible in practice given section 149(2).
Photograph your pay statements as you receive them and keep the images off-site. Section 137(1)(c) makes it an offence to knowingly make a false entry or unauthorised alteration or erasure in books required to be kept — but the practical answer is to hold your own copies.
What to do, in order
- Make a written demand — itemised, dated, delivered in a way you can prove. This engages section 96(b).
- Ask for the wages register entries for your pay periods. Refusing information reasonably required, or penalising you for asking, is an offence under section 138.
- Report it to a labour officer. Ask them to inspect under sections 83(2)(b) and 142.
- Ask the Secretary to prosecute under section 145(a), and to appear on your behalf under section 145(c).
- Raise it as an industrial dispute under the Industrial Relations Act if a union or a group of workers is involved.
- Consider ending the contract under section 36(2) if the employer’s conduct justifies it — and note that this preserves your repatriation entitlement under section 40(1)(d)(iii).
- Sue for the debt under section 93(2), in the District Court or National Court as the amount requires.
- If the employer is failing, act quickly and assert the four-month priority in section 93(1).
- Get advice — the Public Solicitor, or a firm from the law firms directory.
Sources
- Employment Act (Chapter 373) — ss 15, 35, 36, 38, 40, 57, 82, 83, 85, 90, 93, 96, 137, 138, 142, 145, 146, 149
- Insolvency Act (Chapter 253)
- Companies Act 1997
- Industrial Relations Act — PacLII 1986 Revised Edition
- Bar v Kora [2008] PGNC 17; N3290
- Paulus v Nestle (PNG) Ltd [2021] PGNC 342; N9186
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.