The repatriation duty in section 40 of the Employment Act (Chapter 373) is expressed to be subject to section 43. Section 43 is where the argument usually happens.
Section 41 — what the employer is paying for
| Head | Covers |
|---|---|
| 41(1)(a) | Reasonable travelling expenses — where the employer does not provide suitable transport |
| 41(1)(b) | Reasonable subsistence rations, or the money for them, for the duration of the journey |
| 41(1)(c) | Reasonable subsistence rations, or the money for them, for the period between termination and the start of the journey |
| 41(2) | Not liable for subsistence during any delay due to the fault or choice of the employee |
| 44(1) | Provide transport, or pay for public transport, where possible |
Section 41 applies equally to accompanying dependants under section 42.
Section 43 — when a labour officer may exempt the employer
(1)(a)(i)(A) the employee does not wish to exercise his right to repatriation; or
(1)(a)(i)(B) the employee has settled elsewhere at his request or with his consent; or
(1)(a)(i)(C) the employee, without reasonable cause, did not avail himself of the right within three months of becoming entitled; or
(1)(a)(ii) there was just cause for termination under section 36(1) and the employee had not completed 12 months’ continuous service under the contract; or
(1)(b) the employee or accompanying dependant enters into a contract of service with another employer.
Several features repay attention.
- It is discretionary. The officer may exempt, and may exempt from all or part of the expenses. A partial exemption is available where that is fair.
- The decision belongs to the labour officer, not the employer. An employer cannot decide for itself that it is exempt.
- Ground (ii) has two limbs, both required — just cause under section 36(1) and less than 12 months’ continuous service. An employee summarily dismissed after two years is not caught by it.
- Ground (C) is a time limit in substance. Three months from becoming entitled, unless there is reasonable cause for the delay.
Most repatriation disputes are lost on ground (C). Make the claim before you leave the place of employment, date it, and keep a copy. If the journey cannot happen immediately, record why — illness, no transport, waiting for pay — because that is your “reasonable cause”.
Section 43(2) — disputing the officer’s decision
This section does not prevent an employer or employee who is aggrieved by a decision of a labour officer under subsection (1) reporting the matter as an industrial dispute under the Industrial Relations Act.
The right runs both ways — an employer refused an exemption may use it too. It sits alongside the general preservation of the industrial route for terminations in section 36(4).
Deducting for repatriation — and refunding it
- Section 88(1)(g) — the cost of repatriation where the employee is not a citizen is a permitted deduction, but only with prior written consent (s 88(2)), witnessed by a labour officer for an attested contract, and subject to the 50% overall cap in section 88(4).
- Section 90(2) — the employer must refund the whole of any repatriation deductions immediately 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 it may use so much as is necessary for the journey and must refund the rest.
If the employer is exempted under section 43 from paying for repatriation, it has not thereby earned the money it deducted. Section 90(2) still requires the refund, subject only to the section 36(1) carve-out. The two provisions do different jobs: one is about the employer’s obligation, the other about the employee’s money.
If the employer will not pay
- Report it to a labour officer and ask for a decision under section 43 — including a decision that no exemption applies.
- Ask about section 146 — the State may incur the expense on the employer’s account. It then becomes a debt due to the State and, subject to the wage priority in section 93(1) but notwithstanding any other law, a first charge on the employer’s real and personal estate, and on the property divisible among creditors if the employer is adjudicated insolvent.
- Ask the Secretary to consider proceedings under section 145, and to appear on your behalf in your own civil claim under section 145(c).
- Consider the industrial route under section 43(2).
- Sue for the amount — and remember section 149: in a non-criminal proceeding under the Act, a court is guided by equity and good conscience and not bound by the rules of evidence.
For employers — getting it right
- Record who brought each worker and from where. That is the precondition for the whole Division.
- Diary the end of every fixed-term contract, and arrange transport before it expires — section 41(1)(c) subsistence accrues while the worker waits.
- Apply for exemption promptly where a ground exists, rather than simply declining to pay.
- For an attested contract, present the contract and the section 45 repatriation statement to a labour officer at the place of pay-off, and pay wages in the officer’s presence under section 84.
- Check the transport against the section 44(2) standards before it leaves.
Sources
- Employment Act (Chapter 373) — ss 35, 36, 40–46, 84, 88, 90, 93, 145, 146, 149
- Industrial Relations Act — PacLII 1986 Revised Edition
- Kinaram v Vanimo Forest Products Ltd [2011] PGNC 137; N4413
- Tawa v Mainland Holdings Ltd [2020] PGNC 469; N8727
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.