Division 7 of Part III of the Employment Act (Chapter 373) answers a question that arises constantly in Papua New Guinea, where workers are routinely recruited from one province to work in another: who pays to get the worker home?
Section 40 — the precondition and the five triggers
The employee must have been brought to the place of employment by (a) the employer, or (b) an employment agent or a worker-recruiter acting on behalf of the employer.
Where that is so, the employer shall pay the expenses of repatriating the employee to the place from which he was brought.
| Trigger | Provision |
|---|---|
| Expiry of the period of service specified in the contract | s 40(1)(c) |
| Termination by agreement between the parties | s 40(1)(d)(i) |
| Termination by reason of the employer’s inability, refusal or neglect to comply with the contract | s 40(1)(d)(ii) |
| Termination by the employee under section 36(2) | s 40(1)(d)(iii) |
| Termination because illness or accident prevents the employee complying with the contract, on production of a medical certificate | s 40(1)(d)(iv) |
The employee must produce to the employer a certificate of a medical practitioner or other acceptable medical certificate certifying the inability to comply with the contract. Where there is a dispute about whether a certificate other than a medical practitioner’s is acceptable, the decision of a labour officer is final (s 40(2)).
That makes the labour officer, not the employer, the arbiter — a useful provision where an aid post certificate is refused.
Note what is not on the list: termination by the employer for a section 36(1) ground, and ordinary termination on notice by the employee. Those situations are dealt with by the exemption machinery in section 43.
Section 41 — what “expenses” means
(a) where the employer does not provide suitable transport — reasonable travelling expenses;
(b) reasonable subsistence rations, or expenses for rations, for the duration of the journey; and
(c) reasonable subsistence rations, or expenses for rations, for the period (if any) between the termination of the contract and the commencement of the journey.
Paragraph (c) matters in practice. A worker whose contract ends on a Friday and who cannot get a flight or a ship until the following Wednesday is entitled to subsistence for the interval — not left to fend for themselves at the wharf.
The limit is in section 41(2): the employer is not liable to provide subsistence for any period during which repatriation is delayed due to the fault or choice of the employee.
Section 44 — the journey itself
- Section 44(1) — the employer shall, where possible, provide transport or pay for public transport for any person entitled to repatriation.
- Section 44(2) — where the employer provides the transport, a labour officer may direct the employer to ensure that any vehicle or vessel is (i) suitable and safe, (ii) in good sanitary condition, and (iii) not overcrowded; and that suitable accommodation is provided where the journey must be broken overnight.
Repatriation by open truck or overloaded dinghy is exactly what section 44(2) addresses. A worker or family asked to travel in an unsafe or overcrowded vehicle should contact a labour officer before travelling and ask for a direction.
Section 45 — attested contracts and the pay-off
Where an employee on an attested contract and his accompanying dependants are entitled to repatriation, the employer shall, as soon as practicable after the expiry or termination, present to a labour officer at the place of pay-off:
(a) the original contract; and
(b) a statement in the prescribed form setting out the arrangements made for the repatriation of the employee and his accompanying dependants.
Read with section 84, this means an attested contract ends in front of a labour officer: the contract, the wages statement, the repatriation statement, and payment in the officer’s presence. Section 37 makes compliance with Division 7 and section 84 a condition of lawful termination.
Agents, and deductions for repatriation
- Section 46 — an employer may authorise an employment agent to perform any of its functions under Division 7. The duty remains the employer’s.
- Section 88(1)(g) — the cost of repatriation where the employee is not a citizen is a permitted deduction from wages, subject to the written consent requirement in section 88(2).
- Section 90(2) — where deductions have been made to cover repatriation, they must 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 — except that on a section 36(1) termination the employer may use what is necessary for the journey and must refund the balance.
- Section 24(3) — where a labour officer refuses to attest a contract and the parties do not proceed orally, the employee is returned to the place of engagement as if section 40 applied.
Claiming repatriation
- Establish that the employer brought you — a ticket, a recruiter’s name, the contract, or the section 15 record.
- Identify the trigger in section 40(1) that applies.
- Ask in writing, before you leave the place of employment, and keep a copy.
- Claim subsistence for the waiting period under section 41(1)(c).
- Include your accompanying dependants under section 42.
- Check the vehicle or vessel; ask a labour officer for a section 44(2) direction if it is unsafe or overcrowded.
- Do not delay — section 43(1)(a)(i)(C) allows exemption where the employee, without reasonable cause, did not avail himself of the right within three months.
Sources
- Employment Act (Chapter 373) — ss 24, 36–37, 40–46, 84, 88, 90; Part III Division 7
- Industrial Relations Act — PacLII 1986 Revised Edition
- Kinaram v Vanimo Forest Products Ltd [2011] PGNC 137; N4413
- Mamugoba v New Britain Palm Oil Ltd [2024] PGNC 419; N11082
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.