An attested contract is defined in section 1 of the Employment Act (Chapter 373) as a contract made under section 19(b) — that is, one signed or marked in the presence of a labour officer who certifies that section 23 has been complied with.
It exists because the Act inherited a regime designed to protect workers recruited away from home, often unable to read the document, and dependent on the employer for housing, food, medical care and the journey back. Those protections are still in the statute, and they attach to this contract type.
Section 23 — what the labour officer must be satisfied of
(a) the employee has freely consented to enter into the contract;
(b) the employee’s consent is not due to misinterpretation or mistake;
(c) the employee understands the terms and conditions of the contract, and his rights and duties under it;
(d) the employee is not bound by any previous contract;
(e) the terms of the contract are in accordance with this Act; and
(f) the provisions of section 131 (medical examination) have been complied with.
Paragraph (c) is the heart of it. The officer must be satisfied not merely that the worker knows what the wage is, but that he understands his rights and duties under the contract. Paragraph (e) makes the officer a check on the anti-contracting-out rule before the contract takes effect, rather than years later in a court.
Section 24 — refusal to attest
- (1) Where the officer is not satisfied as to any of the section 23 matters, he shall refuse to attest.
- (2) He must then send a written report setting out the grounds of refusal to the Secretary, the employer, the employee, and the person who proposed the employee for employment on contract.
- (3) If the parties do not wish to enter into an oral contract instead, the employee, if he wishes to return to the place where he was engaged, shall be returned there as if section 40 applied — that is, at the employer’s expense under the repatriation provisions.
- (4) The Secretary may direct a labour officer to attest a contract.
A worker brought from a village or another province for a contract that is then refused attestation is not stranded. The employer must return him at its expense. Ask for that expressly, in writing, and give the labour officer’s report as the reason.
Section 131 — medical examination before attestation
Section 23(f) makes compliance with section 131 a precondition. Section 131 requires a medical examination on approval of the contract, and provides for the position where an examination has not been possible — including an endorsement on the contract noting the absence of a medical certificate. The examination is at the employer’s expense. See medical examinations.
What an attested contract carries that others do not
| Section | Protection |
|---|---|
| 20(3) | Quadruplicate — employer, employee, and two copies to a labour officer |
| 21(2) | Must be in the prescribed form |
| 22(4) | Maximum term two years, or three years if accompanied by dependants |
| 25(2)–(3) | A transfer is void unless approved by a labour officer |
| 27 | On the employee’s death: notify a labour officer, comply with ss 42 and 84 |
| 37 | On lawful termination: comply with Division 7, section 84, and any prescribed requirements |
| 38 | A court may award compensation to either side on a section 36 termination |
| 45 | Contract and repatriation statement must be presented to a labour officer at the place of pay-off |
| 84 | Final payment of wages under an attested contract |
Section 38 — the court’s power to award on termination
On the application of an aggrieved party, a court may award:
to an employer — such amounts as it determines of additional expenses caused by the wrongful act or default of the employee, and may authorise the employer to retain all or part of any deferred or other wages due; or
to an employee — such amount as it determines of the value of loss of wages, allowances and any other expense caused by any wrongful act or default of the employer or of a person acting on his behalf.
Each award is deemed to be a judgement debt, and the court may set one off against the other. Under section 39, an order under the Division takes effect notwithstanding anything to the contrary in the Act, and the Division does not prevent proceedings under another law — but amounts retained or recovered count in satisfaction of a judgment obtained under that other law.
First, section 38(1)(a)(ii) allows retention of deferred wages only if a court authorises it. Self-help withholding is not permitted — see deductions and section 90.
Second, section 38(1)(b) is wide: loss of wages, allowances and any other expense caused by a wrongful act or default of the employer. On a contract with a fixed term, that can exceed a notice-period measure of damages.
If your contract is not attested
Most modern written contracts in Papua New Guinea are made under section 19(a), not 19(b), and are therefore not attested. The Act’s general protections still apply — hours, leave, wages, deductions, notice — but sections 37, 38, 45 and 84 do not, and repatriation depends on section 40 rather than section 45.
Sources
- Employment Act (Chapter 373) — ss 1, 19–27, 36–39, 40, 42, 45, 84, 90, 131
- Porgera Joint Venture v Kami [2010] PGSC 11; SC1060
- Murua v Ramu Nico Management (MCC) Ltd [2013] PGNC 28; N5092
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.