Part X of the Employment of Non-Citizens Act 2007 imposes one of the heaviest obligations in the Act, and it is not qualified by fault.
Section 40 — repatriation on termination
(a) the employer; or (b) the non-citizen; or (c) agreement between the parties; or
(d) expiration of the employment contract; or
(e) inability of the employee to comply with the contract on account of illness or accident; or
(f) death of the non-citizen; or
(g) cancellation of the work permit under section 31,
the employer, at the time of termination, shall be responsible for the expenses of repatriation of the non-citizen to the place of origin.
Compare the Employment Act (Chapter 373), where section 43 lets a labour officer exempt an employer in defined circumstances. Part X of the 2007 Act has no equivalent. The words are “terminated for any reason”, and the list expressly includes termination by the non-citizen and cancellation of the permit — including a cancellation for the worker’s own misconduct or false application.
Employers should price the return journey for the worker and dependants into the cost of the engagement from the outset.
The destination is the place of origin — defined in section 3 as a town or city in a country to which the non-citizen has right of entry and residence, and notified in the application under section 20(1)(d) and again on renewal under section 25(1)(d).
Section 41 — repatriation ordered by law
Every non-citizen employed in Papua New Guinea who is ordered to leave in accordance with any law for the time being in force shall be repatriated at the expense of the employer, at the time of the order, to the place of origin.
So a removal or deportation order under the Migration Act (Chapter 16) falls on the employer’s account too. Note that under section 29 a work permit becomes invalid the moment the non-citizen ceases to hold a valid entry permit, and under section 32 the employer must then terminate the employment within 14 days of being notified — which brings section 40 into play as well.
Section 42 — dependants
If any dependent of a non-citizen has been brought to the place of employment by the employer or by any person acting on behalf of the employer, that dependant shall be repatriated to the place of origin at the expense of the employer when the non-citizen is repatriated.
“Dependent” is defined in section 3 as the spouse of the person, not living apart under a court decree or deed of separation, and an unmarried child of that person under the age of 21. “Spouse” includes a de facto husband or wife, and “child” includes a step-child and an adopted child.
Under the Employment Act, “accompanying dependants” means the spouse and children under 16 residing with the employee with the employer’s consent. Here the age limit is 21, de facto spouses are included, and the trigger is simply that the employer (or someone on its behalf) brought them.
Section 43 — the expenses
travelling, subsistence and accommodation expenses:
(a) between the date of termination of the employment and the date of repatriation; and
(b) during the journey to the place of origin.
Paragraph (a) is significant. A worker whose employment ends on a Friday but who cannot fly until the following week is entitled to accommodation and subsistence for the interval, as well as the fare. In practice this is where disputes arise, especially where the worker has been living in employer housing.
If a non-citizen or any dependant dies during the period of employment, or before completion of repatriation, the employer shall pay the reasonable expenses of all services necessary for the preparation and transportation of the deceased’s body to the place of origin.
Compare section 42A of the Employment Act, which covers the coffin and transport of the body on the request of a relative. Section 43(2) here is not expressed to require a request. See what happens when an employee dies.
Section 44 — the statement to the Secretary
Where a non-citizen and accompanying dependants are entitled to repatriation, the employer shall, as soon as practicable after the termination of the contract, present to the Secretary a statement in the prescribed form setting out the arrangements made for their repatriation.
This is the compliance record. It sits alongside the obligation to return the work permit and card within 14 days (s 36) and to notify the Secretary of a section 32 termination within 14 days (s 32(2)).
Sections 45 and 46 — if the employer does not pay
If the employer fails to fulfil the obligation, that obligation shall be discharged by or under the directions of the Minister, and any sum so expended may be recovered from the employer as a debt due to the State and, notwithstanding any law to the contrary, shall be a first charge on the property of the employer.
A person who fails to comply with this Part is guilty of an offence. Penalty: a fine not exceeding K10,000.00.
Two serious consequences, then: a first charge on the employer’s property, and a fine ten times the general penalty in section 57. A prosecution may be instituted in the National Court, or in the District Court where the penalty amount does not exceed K10,000.00 (s 59(4)).
And under section 56, where an offence committed by a corporation is proved to have been committed with the consent or connivance of any director, manager, secretary or other officer, that person as well as the corporation is deemed to have committed it.
Practical steps
- Check the place of origin recorded in the permit application — that is your destination.
- Claim in writing as soon as the employment ends, for yourself and any dependants brought by the employer.
- Include accommodation and subsistence for the period between termination and departure.
- Ask for a copy of the section 44 statement.
- If the employer refuses, write to the Secretary — section 45 allows the Minister to discharge the obligation and recover it as a first charge on the employer’s property.
- Deal with your entry permit under the Migration Act at the same time.
- Claim your final pay separately — repatriation does not replace wages, leave or other entitlements.
- Budget the return journey for the worker and dependants at the start of every engagement.
- Keep the place of origin current at each renewal.
- Book travel promptly — accommodation and subsistence accrue from the date of termination.
- Lodge the section 44 statement as soon as practicable.
- Return the permit and card within 14 days, and update the employer’s register.
- Do not treat resignation or dismissal for cause as an answer — section 40 applies however the employment ends.
Sources
- Employment of Non-Citizens Act 2007 — ss 3, 20, 25, 29–32, 36, 40–46, 56, 57, 59
- Employment Act (Chapter 373) — ss 40–46, 42A; Part III Division 7
- Migration Act (Chapter 16)
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.