Part III of the Employment Act (Chapter 373) is divided by contract type, and almost every question about an employment relationship in Papua New Guinea starts by identifying which of the four you have.
The four types at a glance
| Casual | Oral | Written | Piece-rate | |
|---|---|---|---|---|
| Division | 1 (ss 9–10) | 3 (ss 15–17) | 4 (ss 18–27) | 5 (ss 28–32) |
| Form | No formality | Spoken, but a written record is required | Signed instrument | Oral or written |
| Duration | Day to day | The wage period (s 16) | Specified or unspecified (s 22) | By reference to the work |
| Notice | None either way (s 35(4)) | Section 34 | Section 34, but see s 34(1) | None either way (s 35(3)) |
| Minimum age | Part VI rules | Part VI rules | 16 (s 18) | Part VI rules |
| Can become another type? | Yes — s 10 | Renews automatically — s 17 | Extends as unspecified — s 22(2) | — |
Section 11 — employing otherwise than under the Act is an offence
A person who employs any person, or who accepts or remains in employment, otherwise than in accordance with this Act, is guilty of an offence. Penalty: a fine not exceeding K300.00.
It is a defence under section 11(2) if the defendant proves he believed on reasonable grounds that the employment was not contrary to the Act.
The fine is small. The significance is not: section 11(1) makes the statutory form of the contract a matter of criminal law, not merely of private agreement.
Section 11(3) — contracts made outside the country
Where a contract is made outside the country, relating to employment within the country, this Act applies to that contract as if it had been made in the country.
An expatriate hire signed in Sydney or Manila for work in Lae is squarely within the Act. The place of signature is irrelevant; the place of work is what counts. This sits alongside the separate work-permit requirements under the Employment of Non-Citizens Act 2007 — see work permits.
Section 11(4) — the anti-contracting-out rule
Section 11(4) is the provision the whole Act turns on: a term providing a condition of employment less favourable to an employee than any condition prescribed by the Act is void to the extent that it is less favourable — and it applies to contracts made before or after the commencement date. See what the Act covers.
Sections 12 and 13 — family and spouses
- Section 12 — subject to section 30 (piece-rate groups), a contract of service is not binding on all or any of the members of the family of an employee. An employer cannot treat a household as hired because the head of it was.
- Section 13 — where a contract between an employer and an employee is terminated, any contract between the employer and the employee’s spouse also terminates, unless within 48 hours after the notice of termination is given to the employee, the spouse notifies the employer that his or her contract is to continue — if the employer so agrees.
Section 13 matters wherever couples are employed together — plantations, mine sites, camps, domestic work. If one spouse is given notice, the other’s job ends automatically unless the 48-hour notification is given. Give it in writing and keep proof of the time.
Note that even a timely notification only preserves the contract if the employer agrees. In practice the spouse should ask for the employer’s agreement in writing the same day.
Sections 9 and 10 — when casual work stops being casual
Where a casual worker is employed by the same employer for more than six days in any one month, he shall be deemed to be an oral contract employee under Division 3.
Six days in a month is a low threshold, and the deeming is automatic — no election, no paperwork, no need for the employer to agree. The only exception, in section 10(2), is a casual employed under a registered award covering a specific type of occupation. See casual workers.
Working out which contract you have
- Is there a signed instrument complying with section 19? If yes, it is a written contract — and if a labour officer attested it, an attested contract.
- Is the work declared piece-rate work by the Minister by National Gazette notice? Only then can it be a piece-rate contract.
- Have you worked more than six days in a month for this employer? If so, you are an oral contract employee, whatever the arrangement is called.
- Otherwise you are a casual worker.
Being called a “casual”, a “contractor” or a “day labourer” does not settle the question. The Act works from the definition of a contract of service — any agreement, whether oral or in writing, express or implied, to employ and to serve — and from the facts of the engagement. See employee or contractor.
Sources
- Employment Act (Chapter 373) — ss 1, 9–13, 15–22, 28–32, 34–35; Part III
- Employment of Non-Citizens Act 2007
- Kinaram v Vanimo Forest Products Ltd [2011] PGNC 137; N4413
- Michael v Morobe Consolidated Goldfields [2008] PGNC 300; N3855
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.