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[F.A.Q.]
Kiribati Consolidated Legislation |
Commencement: 22nd April 1966
LAWS
OF THE GILBERT
ISLANDS
REVISED
EDITION 1977
CHAPTER 30
EMPLOYMENT
ARRANGEMENT OF SECTIONS
Section
PART
I
PRELIMINARY
1. Short
title
2.
Interpretation
3. Term of
contract
PART
II
ADMINISTRATION
4. Commissioner of Labour
and other officers
5. Powers of
Commissioner and Health Officer to enter places of employment, to interrogate,
etc.
6. Returns by employers,
inspection of documents, etc.
7. Power
of summons and institution of
proceedings
8. Offences
PART
III
WAGES AND HOURS
OF WORK
9. Liability of worker for
advances and loans
10. Days and hours
of work, and overtime rates, may be specified by Commissioner,
etc.
11. Task
work
12. Records concerning
workers
13. Period for which wages
payable
14. Payment of
wages
15. Payment in stores, etc.,
prohibited
16. Wages to be paid in
legal tender
17. Contracts to pay
wages otherwise than in legal tender
illegal
18. Stipulation as to place
and manner of spending wages
illegal
19. Worker's right to
recover
20. Interest on advances
forbidden
21. Certain deductions from
wages may be made
22. Remuneration
other than wages
23. Employer's
shop
24. Power of employer to exempt
himself if other person proved actual offender and proceedings against such a
person in first instance
25.
Penalties
PART
IV
MINIMUM
WAGE
26.
Interpretation
27. Fixing of minimum
wage
28. Penalty for not paying wages
in accordance with minimum rate
29.
Miscellaneous provisions with regard to legal
proceedings
30. Offence by
agent
31. Employers not to receive
premium where minimum rates in
force
32. Prevention of
evasion
33. Exemption
PART
V
RECRUITING OF
WORKERS
34.
Interpretation
35. Recruiting of
workers to be under licence
36.
Matters to be considered before granting
licence
37. Restriction on
recruitment
38. Application for
recruiting licence
39. Conditions of
recruiting licence
40. Term of
licence
41. Professional
recruiters
42. Cancellation of
licence
43. Persons under the age of
18 not to be recruited
44. Provisions
relating to the family of recruit
45.
Chiefs and public officers not to recruit or assist
recruiting
46. Licensees' assistants
to obtain a permit
47. Remuneration of
licensees' agents
48. Licensees to
keep records
49. Examination of
recruits
50. Recruiter to defray
expenses of journey, etc.
51. Return
to home of recruit and his family in certain
circumstances
52. Advances against
wages
53. Penalty
PART
VI
WRITTEN
CONTRACTS OF EMPLOYMENT
54.
Interpretation
55. Certain contracts
to be in writing
56. Form and
particulars of contract
57.
Attestation of contracts
58. Disposal
of copies of contract
59. Medical
examination
60. Workers under 18 years
may not enter into contract
61.
Maximum duration of contracts
62.
Transfer to other employment
63.
General termination of contract
64.
Cancellation of contract by
Commissioner
65. Dismissal by the
employer without notice
66. Contracts
for service outside the Gilbert
Islands
67. Extra-territorial
contracts for employment in the Gilbert
Islands
68. Employment of immigrant
workers
69. Rights and obligations of
worker and employer in respect of
repatriation
70. Exemption from
obligation to repatriate
71. Employer
to provide transport
72. Summaries of
law
73. Penalty
PART
VII
FORCED
LABOUR
74.
Interpretation
75. Prohibition of
forced labour
PART
VIII
EMPLOYMENT OF
WOMEN
76.
Interpretation
77. Prohibition of
employment of women at night
78.
Suspension of prohibition
79.
Prohibition of employment of women in
mines
80. Women employed to be
permitted to be absent from work in certain
circumstances
81. Restriction on
dismissal of woman employee
82.
Penalty
PART
IX
EMPLOYMENT OF
CHILDREN AND OTHER YOUNG PERSONS
83.
Interpretation
84. Employment of
children under 14 forbidden
85.
Employment of persons under 15
86.
Employment underground of male persons under
16
87. Employment of persons under
18
88. Register of young
persons
89. Presumption of
age
90. Penalty
PART
X
APPRENTICES
91.
Interpretation
92. Contracts of
apprenticeship of persons over 14 and under
16
93. The Commissioner may appoint
person to execute contract of
apprenticeship
94. Contracts of
apprenticeship of persons over 16
years
95. Assignment of contracts of
apprenticeship
96. Attestation of
contract of apprenticeship
97. Duties
of Commissioner on attesting contract of
apprenticeship
98. Retention of
apprentices after expiry of
contract
99. Powers of
Commissioner
100. Exemption of
employer from provisions of this
Part
101. Cancellation of
exemption
PART
XI
CARE OF
WORKERS
102.
Interpretation
103.
Rations
104.
Water
105. Sanitary
arrangements
106.
Housing
107. Medical care and
treatment
108. Hospital maintained by
employers
109. Directions in regard to
housing and sanitation
110. Reporting
of deaths
111. Conveying of workers by
sea
112. Penalty
PART
XII
GENERAL
113. Application to
Crown
114. Priority for wages among
debts of bankrupt or body corporate being wound
up
115. Criminal
proceedings
116. Civil
proceedings
117. Court
fees
118. Power to exempt persons from
provisions of this Ordinance
PART
XIII
REGULATIONS
119. The Minister may make
regulations
PART
XIV
SAVING
120. Saving
------------------------------------
An
Ordinance to declare the law relating to employment
6 of 1965
9 of 1969
8 of
1971
3 of 1972
(Cap. 84 of 1973)
L.N
33/69
Commencement:
22nd April 1966
PART
I
PRELIMINARY
Short
title
1.
This Ordinance may be cited as the Employment
Ordinance.
Interpretation
2.
In this Ordinance, unless the context otherwise requires -
"agricultural undertaking" includes processes conducted on the undertaking for the preservation and despatch of the agricultural products of the undertaking, unless any such processes are specifically declared by order made by the Minister to be parts of any industrial undertaking;
"commercial undertaking" includes -
(1) commercial establishments and offices, including establishments engaging wholly or mainly in the sale, purchase, distribution, insurance, negotiation, loan, or administration of goods or services of any kind;
(2) establishments for the treatment or care of the aged, infirm, sick, destitute, or mentally unfit;
(3) hotels, restaurants, boarding houses, clubs, cafes and other refreshment houses;
(4) theatres and places of public amusement; and
(5) any establishment similar in character to those enumerated in sub-paragraphs (1), (2), (3) and (4) above;
"Commissioner" means the Commissioner of Labour appointed under the provisions of section 4;
"domestic servant" means any house, stable or garden servant or car driver employed in, or in connection with, the domestic services of any private dwelling-house;
"employer" means any person by whom a worker is employed and includes a prospective employer and the Government;
"family" includes the wife of a worker and his children who are unmarried and under the age of 14 years;
"Health Officer" means the person for the time being performing the duties of the office of Chief Medical Officer and includes any officer to whom, by writing under his hand, he delegates the exercise or performance of all or any of the powers or duties conferred or imposed on the Health Officer by this Ordinance to the extent of the powers or duties so delegated;
"immigrant worker" means any worker whose passage to the Gilbert Islands has been provided in consideration of a promise to perform work in the Islands;
"industrial undertaking" includes-
(1) undertakings in which articles are manufactured, altered, cleaned, repaired, ornamented, finished, adapted for sale, broken up or demolished or in which materials are transformed including undertakings engaged in shipbuilding, in the generation, transformation, or transmission of electricity, in the production or distribution of gas or motive power of any kind, in the purification or distribution of water, or in heating or cooling;
(2) undertakings engaged in the construction, reconstruction, maintenance, repair, alteration or demolition of any one or more of the following -
Buildings, railways, tramways, airports, harbours, docks, piers, works of protection against floods or coast erosion, canals, works for the purpose of inland, maritime or aerial navigation, roads, tunnels, bridges, viaducts, sewers, drains, wells, irrigation or drainage works, telecommunication installations, works for the production or distribution of electricity or gas, pipelines, waterworks, and undertakings engaged in other similar work or in the preparation for or laying the foundation of any such work or structure;
(3) mines, quarries or other works for the extraction of minerals from the earth; and
(4) undertakings engaged in the transport of passengers or goods, including the handling of goods at docks, quays,
The Employment Ordinance is amended -
(1) In section 2 by adding the following definitions -
"'contract of employment' means any contract, whether oral or in writing whether express or implied to employ or to serve as an employee;".
(Added, 9 of 80, s. 2)
"'National Conditions of Service' means the National Conditions of Service made by Government in relation to employees of Government, Statutory Bodies, and Government owned companies;".
(Added, 9 of 80, s. 2)
(2) In section 2 by repealing the definition "worker" and substituting the following definition -
"'worker' means any person who has entered into or works under a contract of employment and includes any immigrant worker and any worker who is apprenticed, but does not include any domestic servant;".
(Substituted 9 of 80, s. 2)
Term
of
contract
3.
In default of any agreement to the contrary whether express or implied every
contract of employment shall be deemed to be from month
to month determinable by
either party on 1 month's notice or by the payment of 1 month's wages in lieu of
notice.
PART
II
ADMINISTRATION
Commissioner
of Labour and other
officers
4.
(1) The Minister may appoint an officer to be the Commissioner of Labour, and
may appoint one or more officers s to be Deputy Commissioners
of Labour and
Assistant Commissioners of Labour and such other officers as may be necessary
for carrying out the provisions of this
Ordinance who, subject to such
limitations as the Minister may prescribe, may perform all duties imposed and
exercise all powers
conferred on the Commissioner by this
Ordinance.
(2) If any employer is
aggrieved by any decision or order of any of the officers (other than the
Commissioner) referred to in subsection
(1) made or given by virtue of the
provisions of that subsection, he may require that such decision or order be
confirmed by the
Commissioner, who may confirm or rescind such decision or order
or substitute therefor any decision or order which could be lawfully
given in
accordance with the provisions of this
Ordinance.
(3) If any employer is
aggrieved by any decision or order of the Commissioner made or given either
originally or pursuant to the preceding
subsection, he may require that such
decision or order be confirmed by the Minister who may confirm or rescind such
decision or order
or substitute therefor any decision or order which could be
lawfully given in accordance with the provisions of this
Ordinance.
(4) Subject to such
exceptions as may be prescribed, an officer appointed under subsection (1) of
this section -
(a) shall not have any direct or indirect interest in any undertaking under his supervision;
(b) shall not reveal, either during the subsistence of his appointment or subsequently, any manufacturing or commercial secrets or working processes which may come to his knowledge in the course of his duties; and
(c) shall treat as absolutely confidential the source of any complaint bringing to his notice a defect or breach of legal provisions and shall give no intimation to the employer or his representative that a visit of inspection has been made in consequence of the receipt of such a complaint.
(5)
Any officer who contravenes any of the provisions of subsection (4) shall be
liable to a fine of $100 and to imprisonment for
3 months, and in the case of a
second or subsequent offence to fine of $200 and to imprisonment for 6
months.
Powers
of Commissioner and Health Officer to enter places of employment, to
interrogate,
etc.
5.
(1) The Commissioner or Health Officer may enter at all times upon any place
which he has reasonable cause to believe is a place
of employment and into any
house or accommodation provided by an employer for workers, and put questions,
either alone or in the
presence of witnesses, concerning the workers to the
employer or to any person who may be in charge of the workers or to the workers
themselves and the employer or such person, or any such worker, shall be equally
bound to answer such questions truthfully to the
best of his
ability:
Provided that
-
(i) the Commissioner or Health Officer shall not enter or inspect a private dwelling-house without the consent of the occupier thereof;
(ii) on the occasion of a visit or inspection the Commissioner or Health Officer shall notify the employer or his representative of his presence, unless he has reasonable grounds for believing that such notification may be prejudicial to the performance of his duties.
(2)
The Commissioner or Health Officer shall produce his written appointment as such
upon demand -
(a) by any person in charge of any place or premises in respect of which, or wherein, any power conferred under the preceding subsection is, or is about to be, exercised; and
(b) by any person required by him under any power conferred by the preceding subsection to do, or to refrain from doing, any particular act or thing.
(3)
If the Commissioner or Health Officer has reasonable grounds for suspecting that
any offence has been committed against a worker,
and whenever any complaint of
personal ill-usage or breach of any of the provisions of this Ordinance is made
to the Commissioner
or Health Officer, the Commissioner or Health Officer, as
the case may be, may forthwith remove, or cause to be removed, such worker
from
the place of employment where he is employed for further enquiry into the
matter.
(4) The Commissioner or
Health Officer may by order in writing require any employer to take within such
reasonable time as the Commissioner
may determine such steps as he considers
necessary with a view to remedying defects observed in plant, layout, working
methods, supervision,
medical or sanitary provisions or other matters at any
place of employment which he may have reasonable cause to believe constitute
a
threat to the health or safety of the
worker.
Returns
by employers, inspection of documents,
etc.
6.
(1) Every employer shall furnish to the Commissioner such employers, return or
returns, which shall be accurate and complete in
every particular, in such form
or forms as shall be
prescribed.
(2) The Commissioner
or Health Officer may call for and examine all contracts, registers, books of
account and other documents concerning
any workers or relating to their
employment.
(3) The Commissioner
or Health Officer may take and remove for purpose of analysis samples of
materials and substances used or handled
by any worker in the course of his
employment, subject to the employer of such worker, or the representative of
that employer, being
notified of any samples or substances taken or removed for
such
purpose.
Powers
of summons and institution of
proceedings
7.
(1) Whenever the Commissioner has reasonable grounds for suspicion that any
offence under this Ordinance has been committed or wishes
to enquire into any
matter concerning disputes as to wages, alleged wrongful termination of
agreement or contract, misconduct, food,
medical attendance, death, mining usage
or mining complaint, inspection, sanitation or any other matter relating to
employer and
worker dealt with under the provisions of this Ordinance, the
Commissioner may summon any person whom he has reason to believe can
give
information respecting the subject matter of the enquiry, and the person so
summoned shall be bound to attend at the time and
place specified in the summons
and to answer all questions which the Commissioner may put to
him.
(2) If the Commissioner is of
opinion that an offence has been committed or that any complaint is well founded
he may institute such
proceedings, criminal or civil, for and in the name of the
worker as he shall deem necessary in the
circumstances.
Offences
8.
Any person who hinders or obstructs the Commissioner or Health Officer acting in
the execution of his duty under this Ordinance
or who refuses to produce any
document or give any information lawfully required of him, or who produces a
document or gives information
which he knows to be false, shall be liable to a
fine of $100 or to imprisonment for 6 months.
PART
III
WAGES AND HOURS
OF WORK
Liability
of worker for advances and
loans
9.
(1) The total amount of all loans or advances of wages or both made by an
employer to a worker or to a person in consideration of
his taking up employment
as a worker shall not without the previous permission of the Commissioner exceed
an amount equivalent to
the wages earned by the worker during the previous month
or if he has not been employed for that period the wages he is likely to
earn
during 1 month.
(2) No worker
shall be held to be liable for the amount of any loan or advance or both made to
him under the preceding subsection
by his employer which exceeds the amount
authorised under subsection
(1).
(3) Subject to the provisions
of subsections (1) and (2), an employer may deduct or stop from the wages
payable to a worker-
(a) the actual or estimated cost to the employer of any materials, tools and implements supplied by the employer to the worker at the latter's request to be used by him in his occupation; and
(b) any sums advanced by the employer to the worker by way of loan or advance of wages in anticipation of the regular period of payment of his wages:
Provided
that the total amount which may be stopped or deducted from the wages of a
worker in any pay period under the provisions
of this subsection shall not
exceed one-third of the wages of the worker in that pay
period.
Days
and hours of work, and overtime rates, may be specified by Commissioner,
etc.
10.
After consultation with representatives of organisations of the workers in any
particular industry, occupation or area, and with
representatives of
organisations of their employers, the Commissioner may by order specify the days
and hours of work for such workers
and the rates at which they shall be paid for
any work in excess of that
specified.
Task
work
11.
(1) Any employer and a worker may agree to the assignment of a task to be
performed by the worker as equivalent to work for a day
of 8 hours and the
performance of such task shall, for the purposes of this Ordinance, be
equivalent to working for a
day.
(2) Nothing in this Part
contained shall prevent any employer from agreeing with any worker in his
employment that the wages of such
worker shall be paid at an agreed rate in
accordance with the amount of work done and not by the month or by the
day.
Records
concerning
workers
12.
Every employer shall keep records concerning his workers containing sufficient
information to form a full record of the workers
and of the terms and conditions
of their employment and, in addition to any other record, shall keep a register
or check roll showing
the names of the workers, place of recruitment, nature of
employment, rate of wages, amount and value of rations (if any), amount
earned,
advances, deductions, net amount due, amount paid and any bonus due whether paid
monthly or at the end of the
contract.
Period
for which wages
payable
13.
In any contract it may be stipulated, subject to the provisions of section 10,
that wages shall only be payable for days actually
worked, for public holidays,
and for days other than Sundays or other rest days on which through no fault of
the worker no work is
provided by the
employer.
Payment
of
wages
14.
(1) Where the wages of a worker are payable monthly they shall be paid not later
than 1 day after the expiration of the period in
respect of which they are
due.
(2) All wages due to a worker
whose contract is terminated by expiry of the period for which it was made shall
be paid to him on the
day on which such agreement or contract
terminates.
(3) All wages due to a
worker whose contract is terminated by his employer shall be paid to him on the
day on which such contract
is terminated, or if this is not possible, on the
first day, not being a rest day or public holiday, after the day on which such
agreement or contract is
terminated.
(4) All wages due to a
worker who terminates his contract with his employer after he has given due
notice to such employer as required
under section 3 or under section 63 shall be
paid to him on the day on which such agreement or contract is
terminated.
(5) If a worker
terminates his contract without giving notice to his employer as required by the
terms of any contract or if the required
notice having been given the worker
terminates his contract without waiting for the expiry of such notice, all wages
due shall be
paid to him before the expiry of the tenth day after the day on
which he terminates his
contract:
Provided that the
employer may, subject to any order made by a court or the Commissioner to the
contrary, deduct from the wages due
to the worker such sum as the worker is
liable to pay in lieu of notice according to the terms of his contract, if
any.
(6) The Commissioner may in
the case of any wages paid in any particular industry, or by any particular
employer, by order extend
by any period not exceeding 5 days any of the periods
within which wages are required to be paid by any of the preceding provisions
of
this
section.
Payment
in stores, etc.,
prohibited
15.
No wages shall be paid to any worker-
(a) at or within any shop or store;
(b) at any place or premises where intoxicating liquors are sold; or
(c) at any place of amusement:
Provided
that this section shall not apply to any worker who is normally employed in any
such shop, store, place or
premises.
Wages
to be paid in legal
tender
16.
(1) Except where otherwise expressly provided by this or any other Ordinance the
entire amount of the wages earned by, or payable
to, any worker in respect of
any work done by him shall be actually paid directly to him in legal tender and
every payment of, or
on account of, any such wages made in any other form shall
be illegal, null and void.
(2)
Nothing contained in this section or in section 17 of this Ordinance shall be
construed to prevent or to render invalid any contract
for the payment to the
credit of any bank account in the name of the worker any payment in pursuance of
such contract or any actual
payment by cheque made payable to, or the order of,
any worker of the whole or any part of his wages if such worker shall have
consented
in writing to such contract of payment, payment in pursuance thereof
or actual payment by
cheque.
Contracts
to pay any wages otherwise than in legal tender,
illegal
17.
In any contract for the employment of any worker or for the performance by any
worker of any work, the wages of such worker shall,
subject to the provisions of
section 16(2), be made payable in legal tender and not otherwise and if in any
contract provision is
made for the whole or any part of such wages to be made
payable in any other manner, such provision shall be null and
void.
Stipulation
as to place and manner of spending wages
illegal
18.
No employer shall provide in any contract for the employment of any worker any
terms as to the place at which, or the manner in
which, or the person with whom,
any wages paid to the worker are to be expended and any such provision in a
contract between an employer
and a worker shall be illegal, null and
void.
Worker's
right to
recover
19.
Every worker shall be entitled to sue for and recover by legal process so much
of his wages exclusive of sums lawfully deducted
in accordance with the
provisions of this Ordinance as shall not have been paid to him in accordance
with the provisions of section
16.
Interest on
advances
forbidden
20.
No employer shall make any deduction by way of discount, interest or any similar
charge on account of any advance of wages made
to any
worker.
Certain
deductions from wages may be
made
21.
(1) Notwithstanding anything to the contrary in this Ordinance contained, an
employer may with the consent of the worker make deductions
from the wages of
that worker and pay to the appropriate person or account any contributions to
provident or pension funds or schemes
to which the worker has agreed to
contribute, and which the Commissioner has
approved.
(2) Subject to the
provisions of subsection (1) and except where otherwise expressly permitted by
the provisions of any law no employer
shall make any deduction or make any
agreement or contract with a worker for any deduction from wages to be paid by
the employer
to the worker or for any payment to the employer by the worker for
or in respect of any lost time, or of bad or negligent work or
of injury to the
materials or other property of the
employer.
(3) No worker shall be
required to make a direct or indirect payment for the purpose of obtaining or
retaining employment and no deduction
may be made from the wages of a worker for
this purpose by an employer or his representative or a
recruiter.
Remuneration
other than
wages
22.
(1) No contract with any worker containing a provision that he shall receive
food, or a dwelling place in addition to a monetary
wage as remuneration for his
services shall be illegal by reason only of such a provision, but the value of
any food or dwelling
place so provided shall be expressed in monetary terms in
any such contract.
(2) No employer
shall give, or agree to give, any intoxicating liquor or any noxious drug to any
worker by way of
remuneration.
Employer's
shop
23.
(1) Nothing in this Part shall prevent an employer from establishing a shop for
the sale of food and domestic goods to his workers
at prices which are in the
opinion of the Commissioner fair and reasonable and which are marked or
exhibited in such manner as the
Commissioner may require but such employer shall
not compel any worker to purchase food and domestic goods at such
shop.
(2) No employer shall trade
with any worker or establish or keep a shop on any place of employment otherwise
than in accordance with
the preceding
subsection.
(3) No person employed
at any place of employment as a manager or an overseer shall traffic on such
place on his own account with
any worker employed under or together with him nor
shall such person be either directly or indirectly financially concerned in the
management of any shop wheresoever it be situated which is used or maintained
for the purpose of supplying commodities of any kind
whatsoever to those
employed under or together with such
person.
Power
of employer to exempt himself if other person proved actual offender and
proceedings against such a person in first
instance
24.
(1) Where any employer is charged with an offence against this Part, he shall be
entitled, upon information duly laid by him and
on giving to the prosecution not
less than 3 days' notice in writing of his intention, to have any other person,
whether or not employed
by him, whom he charges as the actual offender brought
before the court at the time appointed for hearing the charge; and if, after
the
commission of the offence has been proved, the employer proves to the
satisfaction of the court -
(a) that he has used all due diligence to enforce the provisions of this Part; and
(b) that the said other person had committed the offence in question without his consent, connivance or knowledge,
that other person shall be summarily convicted of the offence, and the employer shall not be guilty of the offence, and the person so convicted shall, in the discretion of the court, be also liable to pay any costs incidental to the proceedings.
(2) Where an employer
seeks to avail himself of the provisions of the preceding subsection, the
prosecution, as well as the person
whom the employer charges with the offence,
shall have the right to cross-examine him, if he gives evidence, and any
witnesses called
by him in support of his pleas, and to call rebutting
evidence.
(3) Where it appears to
the Commissioner that an offence has been committed in respect of which
proceedings might be taken under this
Part against some employer and the
Commissioner is reasonably satisfied that the offence was due to the act or
default of some other
person and that the employer could establish a defence
under subsection (1), then the Commissioner may cause proceedings to be taken
against the person who committed the offence without first causing proceedings
to be taken against the employer. In any such proceedings
the said person who
committed the offence may be charged with, and, on proof that the contravention
was due to his act or default,
be convicted of, the offence with which the
employer might have been
charged.
Penalties
25.
Any employer who -
(a) fails to pay wages in accordance with the provisions of this Part; or
(b) gives any remuneration for services contrary to the provisions of this Part, or makes any deductions from the wages of any worker or receives any payment from any worker contrary to the provisions of this Part; or
(c) trades with his workers or keeps a shop otherwise than in accordance with the provisions of this Part; or
(d) contravenes or fails to comply with any order of the Commissioner made under this Part;
and
any person employed at a place of employment, who contravenes the provisions of
section 23(3) shall be liable to a fine of $100
or in default of payment thereof
to imprisonment for 6 months.
PART
IV
MINIMUM
WAGE
Interpretation
26.
In this Part, unless the context otherwise requires, the term "minimum wage"
means the minimum rate of wages fixed as in this Part
provided in respect of the
particular occupation followed by the person concerned and applicable to that
person.
Fixing
of minimum
wage
27.
(1) The Minister may by order fix minimum rates of wages for workers in any
occupation or in any class or grade of any occupation
in the Gilbert Islands,
either generally or in any specified area or district, in any case in which he
is satisfied that the minimum
rate of wages being paid to any persons employed
in any such occupation is unreasonably
low.
(2) Before making any order
under this section fixing a minimum rate of wages for any workers the Minister
shall consult with the
representatives of the employers of such workers and with
representatives of the
workers.
Penalty
for not paying wages in accordance with minimum
rate
28.
(1) Where any minimum rate of wages has been fixed under this Part, an employer
shall in cases to which the minimum rate is applicable
pay wages to the person
employed at not less than the minimum rate, and if he fails to do so shall be
liable in respect of each offence
to a fine of $40, and to a fine of $10 for
each day on which the offence is continued after conviction
therefor.
(2) On conviction of an
employer under this section for failing to pay wages at not less than the
minimum rate to a person employed,
the court may by the conviction adjudge the
employer convicted to pay in addition to any fine such sum as appears to the
court to
be due to the person employed on account of wages, the wages being
calculated on the basis of the minimum rate, but the power to
order the payment
of wages under this provision shall not be in derogation of any right of the
person employed to claim recovery
of wages due to him by civil
proceedings.
Miscellaneous
provisions with regard to legal
proceedings
29.
(1) Where any employer has been convicted for failing to pay wages at not less
than the minimum rate to any person employed by him,
and notice of intention so
to do has been served with the summons, evidence may be given of any failure on
the part of the employer
to pay wages at not less than the minimum rate to such
person at any time during the 2 years immediately preceding the date on which
the complaint was made, and on proof of the failure the court may order the
employer to pay to such person such sum as in the opinion
of the court
represents the difference between the amount which having regard to provisions
of this Part ought properly to have been
paid by way of wages during those years
and the amount actually so
paid.
(2) Where it appears to the
Commissioner that any sum is due by an employer to any person by reason of the
fact that wages have been
paid to him at less than the minimum wage applicable,
and that it is not possible to recover the sum so appearing to be due or some
part of that sum by means of proceedings under this section, the Commissioner
may, if it appears expedient so to do by reason of
the refusal or neglect of
such person to take the necessary proceedings, on behalf of and in the name of
such Person institute civil
proceedings before any court of competent
Jurisdiction for the recovery of the said
sum.
Offence by
agent
30.
Where an employer who is charged with an offence against this Part proves to the
satisfaction of the court that he has used due
diligence to enforce the
execution of this Part and that the offence was in fact committed by his agent
or some other person without
his knowledge, consent or connivance, he shall in
the event of the conviction of that agent or other person for the offence be
discharged
in respect of the offence, without prejudice however to the power of
the court under this Part to adjudge him to pay any sum which
appears to the
court to be due to the person employed on account of
wages.
Employers
not to receive premium where minimum rates in
force
31.
(1) Where a person employed in any occupation being a person to whom a minimum
wage applies, is an apprentice or learner, it shall
not be lawful for his
employer to receive directly or indirectly from him, or on his behalf, or on his
account any payment by way
of
premium:
Provided that nothing in
the foregoing provisions shall apply to any such payment duly made in pursuance
of any instrument of apprenticeship
executed within 3 months of the commencement
of the employment.
(2) If an
employer acts in contravention of the provisions of this section he shall be
liable in respect of each offence to a fine
of $40, and the court may upon
conviction in addition to imposing a fine adjudge him to repay to the person by
whom the payment was
made the sum improperly received by way of
premium.
Prevention
of
evasion
32.
Any shopkeeper, dealer or trader who by way of trade makes any arrangement,
express or implied, with any person in pursuance of
which the person performs
any work for which a minimum wage has been fixed, shall be deemed for the
purpose of this Part to be the
employer of such person, and the net remuneration
obtainable by such person in respect of the work, after allowing for his
necessary
expenditure in connection with the work, shall be deemed to be
wages.
Exemption
33.
(1) The Commissioner may issue permits of exemption to infirm or disabled
persons authorising the employment of such persons at
less than the minimum wage
fixed in respect of the occupation in which such persons are employed, and such
permits may specify the
conditions under which such persons may be so employed
and the wage conditions specified in such permit shall, for the purposes of
this
Part, be deemed to be the minimum
wage.
(2) Any minimum rate of
wages may, with the written permit of the Commissioner, be subject to abatement
by collective agreement; and
thereupon during the continuance of such collective
agreement the wage and conditions specified in such permit shall be deemed to
be
the minimum wage fixed in respect of the employed persons who are a party to
such collective agreement.
(3)
Save as in this section provided, any agreement for the payment of wages at less
than the minimum rate fixed under this Part shall
be void.
PART
V
RECRUITING OF
WORKERS
Interpretation
34.
In this Part -
"licence" means a licence issued under this Part;
"licensee" means the holder of a licence issued under this Part;
"professional recruiter" means a person who for remuneration recruits workers;
"recruiting", with its grammatical variations, includes all operations undertaken with the object of obtaining or supplying the labour of workers who do not spontaneously offer their services at the place of employment or at a public emigration or employment office, or at an office conducted by an employers' organisation and supervised by the Commissioner and the noun "recruit" means a worker who has been recruited;
"worker-recruiter" means a person who, being a worker, is authorised in writing by his employer to recruit workers on behalf of his employer, but who does not receive any remuneration or other advantages for such recruiting.
Recruiting
of workers to be under
licence
35.
(1) The Commissioner may in his discretion issue licences to fit and proper
persons to recruit workers.
(2)
Save as in this section hereinafter provided it shall be an offence for any
person to recruit workers except in accordance with
the terms of a licence duly
issued by the Commissioner under this
Part.
(3) It shall be lawful for
an employer, either in person or by some other person acting on his behalf other
than a professional recruiter,
to recruit workers without a licence
where-
(a) the employer does not employ more than 25 workers at any one time; or
(b) the workers are to be employed within the island of recruitment or within 25 miles of the place of recruitment; or
(c) the workers are to be employed on personal or domestic service or upon non-manual work.
Matters
to be considered before granting
licence
36.
In the exercise of his discretion to grant or refuse a licence under this Part
the Commissioner shall take into consideration the
possible effects of the
withdrawal of adult males on the social life and organisation of the population
and in particular shall consider-
(a) the density of the population;
(b) the possible effects of the withdrawal of adult males on the health, welfare and development of the population particularly in connection with the food supply;
(c) the dangers to the family and morality generally arising from the withdrawal of adult males.
Restriction
on
recruitment
37.
The Commissioner may by order prohibit or restrict the recruiting of workers in
any area in the Gilbert Islands if he considers it
expedient to do so in the
interests of the inhabitants thereof; and any recruiting licence in force
relating to such area shall be
valid only so far as it does not conflict with
such
order.
Application
for recruiting
licence
38.
Before issuing any licence the Commissioner-
(a) may require the applicant to show to his satisfaction that adequate provision has been made for safeguarding the health and welfare of the workers to be recruited;
(b) shall, if the workers to be recruited are intended to be employed beyond the Gilbert Islands, satisfy himself that all necessary measures have been taken for the protection of the recruits beyond the limits of the Islands;
(c) may require the applicant to furnish financial or other security for proper conduct as a licensee;
(d) may require the licensee, if an employer, to furnish financial or other security for the payment of wages due.
Conditions
of recruiting
licence
39.
(1) A licence shall be subject to such conditions as the Commissioner may think
necessary to impose and such conditions shall be
endorsed upon the
licence.
(2) Without prejudice to
the generality of the provisions of the preceding subsection the Commissioner
may impose conditions relating
to all or any of the following
matters-
(a) the period during which and the places from which workers may be recruited;
(b) the number of workers who may be recruited during a specified period or from a specified place;
(c) the manner in which recruited workers shall be transported from their homes or from the place of engagement to the place of employment;
(d) the vessel or vessels which may be used in transporting recruited workers;
(e) the reports or returns to be made by recruiters;
(f) the maintenance and welfare of the recruits from the time of recruitment until the time their employment begins;
(g) the return of the workers to their homes upon conclusion of their employment.
(3)
The Commissioner may make it a condition of the licence that-
(a) the recruits shall be grouped at the place of employment under suitable conditions;
(b) each recruit shall be issued with a document containing particulars of the identity of the recruit, the prospective conditions of employment, any advances of wages made to him and such other particulars as the Commissioner may require.
Term
of
licence
40.
A recruiter's licence shall be valid for a period of 12 months from the date of
issue and shall not be transferable and shall be
produced on the demand of the
Commissioner or a police
officer.
Professional
recruiters
41.
No professional recruiter shall be licensed unless he is recruiting for a
department of the Government of the Gilbert Islands or
for one or more specific
employers or an organisation of employers, and produces to the Commissioner the
written authorisation of
such department of the Government of the Islands, or
employer, or organisation of
employers.
Cancellation
of
licence
42.
The Commissioner may cancel any licence in any case where the licensee has been
convicted of an offence against the provisions of
this Ordinance or has not
complied with the conditions under which it was granted, or is guilty of conduct
which in the opinion of
the Commissioner renders him no longer a fit and proper
person to hold a licence; and the Commissioner may suspend any licence pending
the making of any inquiry which he may consider necessary or where proceedings
are taken against the licensee pending the decision
of the
court.
Persons
under the age of 18 not to be
recruited
43.
No person shall recruit a worker under the age of
18:
Provided that the Commissioner
may permit workers under that age, but of or above the age of 15 years, to be
recruited with the consent
of their parents or guardians for employment in the
Gilbert Islands upon light work subject to such conditions as he may
impose.
Provisions
relating to the family of
recruit
44.
(1) The recruiting of the head of a family shall not be deemed to involve the
recruiting of any member of his
family.
(2) In default of an
express agreement to the contrary there shall be implied in any agreement for a
member of his family to accompany
a recruit a condition that the said member may
remain with him during the period of his
contract.
Chiefs
and public officers not to recruit or assist
recruiting
45.
(1) No chief or person holding any public office shall directly or indirectly
procure or assist in procuring recruits or receive
from any source whatsoever
any consideration for so
doing.
(2) No person shall give or
promise to give a chief or public officer any consideration as an inducement to
such chief or public officer
to procure or assist in procuring recruits, or as a
reward for having so procured or assisted in procuring
recruits.
Licensees'
assistants to obtain a
permit
46.
(1) No person shall assist a licensee in the recruiting of workers unless he has
been approved by the Commissioner and has been
furnished with a permit by the
licensee.
(2) Licensees shall be
responsible for the proper conduct of such
assistants.
Remuneration
of licensees'
agents
47.
A licensee who employs another licensee as his agent otherwise than on a fixed
salary shall not remunerate the agent at the rate
of more than $4 per head of
the workers recruited, or at such other rate as may be
prescribed.
Licensees
to keep to
records
48.
Every licensee shall keep in such form as the Commissioner may require records
of his recruiting
operations.
Examination
of
recruits
49.
(1) Workers recruited under licence shall, before their employment
begins-
(a) be brought before the Commissioner; and
(b) be medically examined by a medical officer or, if such be not available, a person approved for that purpose by the Health Officer as near as may be convenient to the place of recruitment:
Provided that, where it has been impracticable for the worker to be medically examined before his employment begins, the Commissioner may authorise the departure prior to medical examination of a worker, if he considers that the worker is fit for the journey and the prospective employment, and if he is satisfied that the worker will be medically examined on arrival at the place of employment or as soon as possible thereafter.
(2)
The Commissioner when any such recruit is so brought before him shall satisfy
himself that the provisions of this Part, and of
any regulations made
thereunder, have been observed, and that the recruit has not been subjected to
pressure or recruited by misrepresentation
or
mistake.
Recruiter
to defray expenses of journey,
etc.
50.
(1) The recruiter shall defray all expenses connected with the journey of the
workers to the place of employment and shall ensure
that whenever possible
suitable transport is provided and in all cases adequate accommodation, food,
water and medicines.
(2) In the
event of the death of any recruited worker or of any dependant occurring during
any journey to the place of employment
from the place of recruitment the
recruiter shall provide decent interment and pay the reasonable expenses of
burial.
Return
to home of recruit and his family in certain
circumstances
51.
(1) A recruit who-
(a) becomes incapacitated by sickness or accident during the journey to his place of employment; or
(b) is found on medical examination to be unfit for employment; or
(c) is not engaged after being recruited, for a reason for which he is not responsible; or
(d) is found by the Commissioner to have been recruited by pressure or by misrepresentation or mistake,
and
the family of such recruit and the family of a recruit who dies during the
journey to the place of employment shall be returned
to their homes at the
expense of the recruiter or employer who shall be jointly and severally liable
for the same.
(2) Should a
recruiter and employer fail to fulfil their obligations under this section the
said obligations may be discharged by
the Commissioner and the costs thereof met
out of public moneys and recovered from the recruiter or employer as the case
may be as
a civil debt.
(3) A
recruit who without reasonable excuse fails to avail himself of any proper and
lawful facilities for repatriation afforded by
a recruiter or employer shall
forfeit his right to repatriation under this
section.
Advances
against
wages
52.
(1) Any advance made to a recruit before he takes up his employment shall not
exceed an agreed month's wages, and not more than
one quarter of such advance
shall be recovered out of each month's wages; and no advance made in excess of 1
month's wages shall
be recoverable from the
recruit.
(2) A worker-recruiter
shall not make advances of wages to
recruits.
Penalty
53.
Any person who acts in contravention of, or fails to comply with any of the
provisions of this Part, or who shall recruit any person
by means of any fraud,
falsehood, intimidation, coercion or misrepresentation, shall be liable to a
fine of $50
PART
VI
WRITTEN
CONTRACTS OF EMPLOYMENT
Interpretation
54.
In this Part, unless the contrary intention appears, the term "contract" means a
contract which is required by section 55 to be
made in
writing.
Certain
contracts to be in
writing
55.
(1) Save as provided in subsection (2) a contract of employment by which a
worker enters the service of an employer for remuneration,
and which-
9 of 1980, s. 2
(a) is made for a period exceeding 1 month or for more than 30 working days; or
(b) stipulates conditions of employment which differ materially from those customary in the district of employment for ???
"(c) has been in operation for a period exceeding 1 month or for more than 30 working days at the time when this sub-paragraph is brought into force and is to continue in operation".
(N.B. brought into force 1 January, 1981)
(Amended, 9 of 80, s. 3)
(b) to contracts under which the only or principal remuneration granted to the worker is the occupancy or use of land belonging to his employer.
(3)
If a contract which is required to be made in writing and attested has not been
made in writing and attested as required by this
section, it shall be deemed to
be a contract of employment from month to month determinable as provided by the
provisions of section
3.
(4) If an
omission to make any contract in writing or to have any contract attested, in
breach of subsection (1), is due to the wilful
act or negligence of the
employer, the worker shall be entitled to apply to the Commissioner for the
cancellation of such contract
under section 64 and for an award of compensation
and order by the Commissioner under the said
section.
(5) Except as provided in
section 61(3), all the provisions of this Part relating to contracts shall apply
to contracts providing
for the re-engagement of
workers:
Provided however that it
shall be lawful for the Commissioner acting in his discretion to exempt any such
contract from the provisions
of section
59.
Form and
particulars of
contract
56.
Every contract shall be in triplicate and shall contain in clear and unambiguous
terms all that may be necessary to define the rights
and obligations of the
parties thereto and shall in all cases include the following
particulars-
(a) the name of the employer or group of employers and, where practicable, of the undertaking and the place of employment;
(b) the name of the worker, the place of engagement and the place of origin of the worker, and any other particulars necessary for his identification;
(c) where possible the names and addresses of the next of kin of the worker;
(d) the nature of the employment;
(e) the duration of the employment and the method of calculating this duration:
(f) the appropriate period of notice to be given by the party wishing to terminate the contract due regard being had to the provisions of section 63 and to the fact that such provi.....-
(9 of 1980, s.4)
"(ga) any entitlement to annual increments in wages;
(gb) any entitlement to annual leave and leave pay;
(gc) any entitlement to sick leave and payment whilst sick;"
(h) the measures to be taken to provide for the welfare of the worker and any dependant who may accompany him under the terms of the contract;
(i) the conditions of any repatriation; and
(j) any special conditions of the contract.
Attestation
of
contracts
57.
(1) Every contract shall be presented to the Commissioner for attestation, and
before attesting any such contract the Commissioner
shall-
(a) ascertain that the employee fully understood the terms of the contract before signing it, has freely consented to the contract, and that his consent has not been obtained by coercion or undue influence, or as the result of misrepresentation or mistake; and
(b) satisfy himself that-
(i) the contract is in due legal form;
(ii) the terms of the contract are in accordance with the requirements of this Ordinance and any other Ordinance for the time being in force;
(iii) that the provisions of the law relating to medical examination have been complied with;
(iv) that the terms of the contract are not manifestly unfair to the worker; and
(c) require the worker to declare himself not bound by any previous engagement.
(2)
The Commissioner may refuse to attest any contract in respect of which he is not
satisfied in regard to any of the matters set
out in subsection (1) and any
contract the Commissioner has refused to attest shall have no further
validity.
(3) If the omission to
make any contract in writing or present any contract to the Commissioner for
attestation is due to the wilful
act or the negligence of the employer, the
worker shall be entitled to apply to the Commissioner for the cancellation of
such contract
under section 64 and for an award of compensation and order by the
Commissioner under the said
section.
(4) Any agreement not
made in writing when required by this Part to be so made and any contract not
attested in accordance with the
provisions of this Part shall not be enforceable
except during the period of 1 month from the making thereof but either party
shall
be entitled to have any such agreement drawn up in writing or any such
contract presented for attestation, as the case may be, at
any time prior to the
expiry of the period for which it was
made.
Disposal
of copies of
contract
58.
When the contract has been attested the Commissioner shall deliver 1 copy to the
employer, and 1 copy to the
worker.
Medical
examination
59.
(1) The employer shall cause every worker who enters into a contract to be
medically examined by a medical officer or a person approved
for that purpose by
the Health Officer.
(2) Such
examination shall be made and a medical certificate of fitness for the type of
work upon which he is to be engaged issued
before the attestation of the
contract:
Provided that, where it
has been impracticable to have the worker so medically examined before the
attestation of the contract, the
attesting officer may dispense with the
requirement but shall in such case endorse the contract to this effect, and the
worker shall
be so examined at the earliest possible opportunity
thereafter.
(3) The Commissioner
may accept from the requirement of medical examination workers entering into
contracts for-
(a) employment in any agricultural undertaking not employing more than 25 workers; or
(b) employment in the vicinity of the worker's home on work which is not of dangerous character or likely to be injurious to the health of the workers.
Workers
under 18 years may not enter into
contract
60.
Workers whose age is, or appears to the Commissioner to be, less than 18 years
shall not be capable of entering into a
contract.
Maximum
duration of
contracts
61.
(1) The maximum period of service which may be stipulated or implied in any
contract involving a journey within the Gilbert Islands
from the place of
recruitment to the place of employment or a journey from a place of recruitment
in the Islands to a place of employment
in the Island of Nauru shall in no case
exceed 12 months if the worker is not accompanied by his family or 2 years if he
is so accompanied.
(2) The maximum
period of service which may be stipulated or implied in any contract involving a
journey from a place of recruitment
in the Islands to a place of employment (not
being in the Island of Nauru) outside the Islands shall in no case exceed 2
years if
the worker is not accompanied by his family or 3 years if the worker is
accompanied by his
family:
Provided that this
subsection shall apply to any contract involving a journey to any place of
employment in that part of the Islands
known as the Line Islands District from a
place of recruitment in any other part of the Islands as if it were a contract
involving
a journey outside the
Islands.
(3) The maximum period of
service which may be stipulated or implied in any contract providing for the
re-engagement of any worker
upon the expiration of any contract made by him
shall not, in any case in which the last mentioned contract is one to which
subsection
(1) applies, exceed 21 months if the worker is accompanied by his
family or 12 months if he is not, or, in any case in which such
last mentioned
contract is one to which subsection (2) applies, exceed 33 months if such worker
is accompanied his family or 21 months
if he is
not:
Provided however that if
service for the period stipulated or implied in a contract for the re-engagement
of any worker upon the expiration
of a contract, together with the period served
under such last-mentioned contract at the time of its expiration, will involve
the
separation of such worker from his family for any period in excess of 18
months, such worker shall not begin service under the contract
providing for his
re-engagement until he has had the opportunity to return to his home at his
employer's expense:
Provided
further that the Commissioner may grant an exemption from the provisions of this
section when he considers its application
impracticable or
undesirable.
(4) The Commissioner
may after consultation with any employers' and workers' organisations
representative of the interests concerned,
exclude from the application of this
section contracts entered into between employers and literate workers whose
freedom of choice
in employment is satisfactorily safeguarded; such exclusion
may apply generally, or to workers in any specified industry or undertaking
or
to special groups of
workers.
Transfer
to other
employment
62.
(1) The transfer of any contract from one employer to another shall be subject
to the consent of the worker and the endorsement of
the transfer upon the
contract by the Commissioner.
(2)
Before endorsing the transfer upon the contract the Commissioner
(a) shall ascertain that the worker has freely consented to the transfer and that his consent has not been obtained by coercion or undue influence or as a result of misrepresentation or mistake; and
(b) in any case in which by such transfer the worker
(i) will change his form of employment from one which is the subject of an exemption made under the provisions of section 59(3); or
(ii) will be subject to such change in conditions as in the opinion of the Commissioner renders such a course advisable;
may require the worker to be medically examined or re-examined as the case may be by a medical officer or other person approved for that purpose by the Health Officer.
General
termination of
contract
63.
(1) A contract shall be terminated-
(a) by the expiry of the period for which it was made; or
(b) by the death of the employer or worker before the expiry of the term for which it was made.
(2)
The termination of a contract by the death of the worker shall be without
prejudice to be lawful claims of any person entitled
to claim through or under
him.
(3) If the employer is unable
to fulfil a contract or if owing to sickness or accident the worker is unable to
fulfil the contract,
the contract may be terminated with the consent of the
Commissioner subject to conditions safeguarding the right of the worker to
wages
earned, any deferred pay due to him, any compensation due to him in respect of
accident or disease, and his right to
repatriation.
(4) A contract may
be terminated by agreement between the parties with the consent of the
Commissioner subject to conditions safeguarding
the worker from the loss of his
right to repatriation unless the agreement for the termination of the contract
otherwise provides
and to the Commissioner being satisfied-
(a) that the worker has freely consented to the termination and that his consent has not been obtained by coercion or undue influence or as the result of misrepresentation or mistake; and
(b) that all monetary liabilities between the parties have been settled.
(5)
A contract other than a contract to perform some specific work without reference
to time, may be terminated by either party giving
to the other notice of such
termination in accordance with the terms of the contract, the minimum
requirements of which shall be-
(a) where the duration is for more than 1 month the period of notice shall be not less than 14 days and may be given only after the expiry of the first month of employment, or
(b) where the duration is for 1 month or less the period of notice shall be not less than 7 days:
Provided that an equitable settlement of monetary and other conditions including the question of repatriation shall be agreed upon between the worker and the employer, and in default of such agreement either party may refer the matter to the Commissioner, who shall make such order, including the award of any subsistence expenses reasonably incurred pending such order, as may be just and equitable.
Cancellation
of contract by
Commissioner
64.
(1) A contract may be cancelled by an order of the Commissioner if the worker is
subject to ill-usage in person or property or if
in pursuance of the provisions
of this Ordinance the worker applies to the Commissioner so to do and in such
event the Commissioner
may award the worker reasonable compensation and order it
to be paid by the employer.
(2) It
shall be a defence to any charge of failing to comply with an order for the
payment of compensation under this section that
the amount of such compensation
was unreasonable but the onus of establishing such unreasonableness shall be
upon the defendant in
the
proceedings.
Dismissal
by the employer without
notice
65.
An employer shall not dismiss a worker employed by him without notice except in
the following circumstances-
(a) where the worker is guilty of misconduct, whether in the course of his duties or not inconsistent with the fulfilment of the express or implied conditions of his agreement;
(b) for wilful disobedience to lawful orders given by the employer;
(c) for lack of the skill which the worker expressly or implicitly warrants himself to possess;
(d) for habitual or substantial neglect of his duties;
(e) for absence from work without leave from the employer or absence without other reasonable cause.
Contracts
for service outside the Gilbert
Islands
66.
Where any contract made in the Gilbert Islands relates to employment in any
place outside the Islands-
(a) the attestation of the contract required by section 55 shall take place before the Commissioner before the worker leaves the Islands;
(b) the medical examination required by section 59 shall take place at the latest at the place of departure of the worker from the Islands;
(c) a person whose apparent age is less than either the minimum age prescribed in section 60 or the minimum age of capacity for entering into a contract allowed by the law of the place of employment if such minimum age is higher than that prescribed in section 60 shall not be capable of entering into a contract;
(d) the contract shall contain a provision that it is not transferable unless such transfer is endorsed on the contract by a public officer of the place of employment;
(e) the duration stipulated in the contract shall not exceed either the maximum period prescribed in section 61 or the maximum period prescribed by the law of the place of employment whichever is less;
(f) if the laws of the place of employment are substantially the same as this Part the conditions under which the contract is subject to termination and any question of exemption from liability for repatriation shall be determined by the law of the place of employment;
(g) if the laws of the place of employment differ from the laws of the Islands in respect to repatriation the Commissioner may require such deposit or security from the employer as he deems necessary and such deposit or security may be used to defray the costs of repatriation at the discretion of the Commissioner;
(h) the Commissioner shall co-operate with the appropriate authority of the place of employment to ensure the application of the provisions of section 71(2);
(i) Commissioner may require the employer to deposit cash or enter into a bond as security for the cost of repatriation of the worker.
Extraterritorial
contracts for employment in the Gilbert
Islands
67.
When a contract made in any place outside the Gilbert Islands (in this section
referred to as the place of origin) relates to employment
in the
Islands-
(a) If such place of origin has enacted laws substantially the same as this Part and the parties to the contract have complied with all the provisions of such laws prior to the worker leaving such place of origin, then-
(i) the endorsement of a transfer on a contract shall be made by the Commissioner as provided in section 62;
(ii) the conditions under which the contract is subject to termination shall be determined by the provisions of this Ordinance;
(iii) if the employer fails to fulfil his obligations in respect of repatriation the said obligations may be discharged by the Commissioner as provided in section 69 and such expenses may be recovered from the employer as a debt due to the Government;
(iv) the authority which may exempt the employer from liability for repatriation expenses and exercise any other powers conferred upon a competent authority in the place of origin shall be the Commissioner;
(v) the Commissioner shall co-operate with the appropriate authority of the place of origin to ensure the application of the provisions of section 71(2).
(b) If such place has not enacted laws substantially the same as this Part or if it has enacted such laws and any party to the contract has not fully complied with any provisions thereof in respect of such contract then the whole of the provisions of this Part or such portion thereof as has not been complied with shall be complied with immediately upon the arrival of the worker in the Islands and thereafter the provisions of this Part shall be deemed to apply mutatis mutandis as if such contract had been entered into in the Islands.
Employment
of immigrant
workers
68.
No person shall knowingly employ any immigrant worker unless he has obtained a
licence from the Commissioner to do so in such form
and subject to such
conditions as may be
prescribed:
Provided that, for the
purposes of this section, if an immigrant worker has terminated his contract in
accordance with the provisions
of section 63 he shall not be regarded as an
immigrant
worker.
Rights
and obligations of worker and employer in respect of
repatriation
69.
(1) Every worker who is a party to a contract under this Ordinance and who has
been brought to the place of employment by an employer
or by any person acting
on behalf of the employer shall have the right to be repatriated at the expense
of the employer to his place
of origin or to the place of engagement, if the
latter be nearer to the place of employment and the laws of the place of
engagement
permit, in the following cases
(a) on the termination of the contract by expiry of the period for which it was made;
(b) on the termination of the contract by reason of the inability of the employer to fulfil the contract;
(c) on the termination of the contract by reason of inability of the worker to fulfil the contract owing to sickness or accident;
(d) on the termination of the contract by notice subject to the provisions of the particular contract and Part VI of this Ordinance;
(e) on the cancellation of the contract under section 64;
(f) on the termination of the contract by agreement between the parties, unless the Commissioner otherwise decides.
(2)
Where any dependant of the worker has been brought to the place of employment by
the employer or by any person acting on behalf
of the employer such dependant
shall be repatriated at the expense of the employer whenever the worker is
repatriated or in the event
of his
death.
(3) The expenses of
repatriation shall include-
(a) travelling and subsistence expenses during the journey; and
(b) subsistence expenses during the period, if any, between the date of termination of the agreement or contract and the date of repatriation; and
(c) provision of decent interment and the payment of the reasonable expenses of burial in the event of death of a worker occurring during the course of, or pending, repatriation.
(4)
The employer shall not be liable for subsistence expenses in respect of any
period during which the repatriation of the worker
has been
delayed-
(a) by the worker's own choice; or
(b) for the reasons of force majeure unless the employer has been able during the said period to use the services of the worker at the rate of wages stipulated in the expired contract.
(5)
Every immigrant worker who is ordered to leave the Gilbert Islands in accordance
with the provisions of any law for the time being
in force in the Islands shall
be repatriated at the expense of the employer to his place of origin or to the
place of engagement,
if the latter be nearer to the place of employment and the
laws of the place of engagement
permit.
(6) If the employer fails
to fulfil his obligation in respect of repatriation the said obligation shall be
discharged by or under
directions of the Commissioner and any sum so expended
may be recovered from the employer or employers by civil suit as a debt due
to
the
Government.
Exemption
from obligation to
repatriate
70.
The Commissioner may exempt the employer from liability for repatriation
expenses in the following cases-
(a) when the Commissioner is satisfied-
(i) that the worker by a declaration before the Commissioner has signified that he does not wish to exercise his right to repatriation; and
(ii) that the worker has been settled at his request or with his consent at or near the place of employment;
(b) When the Commissioner is satisfied that the worker by his own choice has failed to exercise his right of repatriation before the expiry of 30 days from the date of termination of the agreement o contract;
(c) when the liability of the employer has been provided for under any of the provisions of any fund established under the provisions of this Ordinance or any regulation thereunder;
(d) when the agreement or contract has been terminated otherwise than by reason of the inability of the worker to fulfil the agreement or contract owing to sickness or accident and the Commissioner is satisfied-
(i) that in fixing the rates of wages proper allowance has been made for the payment of repatriation expenses by the worker; and
(ii) that suitable arrangements have been made by means of a system of deferred pay or otherwise to ensure that the worker has funds necessary for the payment of such expenses.
Employer
to provide
transport
71.
(1) The employer shall whenever possible provide transport for workers who are
being repatriated.
(2) The
Commissioner shall take all necessary measures to ensure and may give such
directions to the employer or to any person acting
on behalf of the employer as
will ensure-
(a) that all vehicles or vessels used for transport of workers are suitable for such transport, are in good sanitary condition and are not overcrowded;
(b) that when it is necessary to break the journey for the night suitable accommodation is provided for the workers;
(c) that when the workers have to make long journeys on foot the length of the daily journey is compatible with the maintenance of their health and strength; and
(d) that in the case of long journeys suitable arrangements are made for medical assistance and for the welfare of the workers.
(3)
When the workers have to make long journeys in groups they shall be conveyed by
a responsible person to be approved by the
Commissioner.
Summaries
of
law
72.
The Commissioner may cause to be printed in English or in any appropriate
language concise summaries of the provisions of this Part
relating to contracts,
and every employer upon being directed so to do by the Commissioner and upon
being furnished by him with the
aforesaid summaries shall exhibit the same in
such manner as the Commissioner may
require.
Penalty
73.
Any person who acts in contravention of any of the provisions of, or fails to
comply with, any of the provisions of this Part, or
an order made by the
Commissioner pursuant thereto, shall be liable to a fine of $300, and may, where
the offence is under section
64, be further ordered to pay such compensation as
the Commissioner has awarded that section, which compensation shall be recovered
as a fine.
(9 of 80, s.5)
PART
VII
FORCED
LABOUR
Interpretation
74.
In this Part-
"forced or compulsory labour" means all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily, but does not mean-
(a) any work or service exacted from any person as a consequence of a conviction in a court of law:
Provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired or placed at the disposal of private individuals, companies, or associations;
(b) any work or service exacted in case of emergency, that is to say, in the event of war, or of a calamity or threatened calamity such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstances that would endanger the existence or the well-being of the whole or part of the population;
(c) unpaid labour on minor communal works lawfully required by a local government council.
Prohibition
of forced
labour
75.
Any person who exacts, procures or employs forced or compulsorily labour is
guilty of an offence and shall be liable to a fine of
$100.
PART
VIII
EMPLOYMENT OF
WOMEN
Interpretation
76.
For the purposes