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Employment of Non-Citizens Act 2007
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Employment of Non-Citizens Act 2007
No.
10 of
2007.
Employment
of Non-Citizens Act
2007.
Certified on:
1/10/2007.
No.
10 of
2007.
Employment
of Non-Citizens Act
2007.
ARRANGEMENT OF SECTIONS.
1. Purpose of Act.
2. Compliance with Constitutional
requirements.
3. Interpretation.
4. Act binds the State.
5. Application.
6. Prohibition of employment without valid
work permit.
7. Types of work permits.
8. Purpose of work permits.
9. Term of work permits.
10. Work permit limited to specified
occupation.
11. Work permits may be subject to
conditions.
12. Occupations reserved for
citizens.
13. Occupations to be advertised.
14. Review of reserved and advertised
occupations.
15. General requirements as to
skills.
16. Professional registration.
17. Language requirements.
18. Application for work permit.
19. Non-citizen must be outside of the
country.
20. Application made in prescribed
manner.
21. Complete and correct
application.
22. Secretary to grant work
permit.
23. Bridging work permit.
24. Renewal of work permits.
25. Application for renewal.
26. Secretary may grant application for
renewal.
27. Work permit expires prior to
renewal.
28. Complete and correct
application.
29. Valid entry permit.
30. Continuing employment.
31. Cancellation of work permits.
32. Termination of employment.
33. Revocation and variation of conditions,
etc.
34. Work permit and work permit
card.
35. Production of work permit and work
permit card.
36. Return of work permit and work permit
card.
37. Register or work permits.
38. Duplicate work permit and work permit
card.
39. Employer’s register.
40. Repatriation on termination of
contract.
41. Repatriation by law.
42. Repatriation of dependents.
43. Expenses of repatriation.
44. Statement of arrangement for
repatriation.
45. Discharge of repatriation
obligations.
46. Repatriation offence.
47. Appointment of authorised
officers.
48. Powers of authorised
officers.
49. Immunity of authorised
officers.
50. Work Permit Trust Account.
51. Exemption.
52. Good Corporate Citizens of Papua New
Guinea.
53. Delegation.
54. Compliance with law.
55. Guidelines.
56. Offences by officers of a
company.
57. General penalty.
58. Infringement notices.
59. Institution of prosecution or
proceedings.
60. Verification of statements.
61. Regulation.
62. Repeal.
63. Saving of regulations.
64. Saving of work permits and
applications.
65. References to former act,
etc.
66. Actions not to
abate.
AN
ACT
entitled
Being an Act to –
(a) provide
for the regulation and control of non-citizens employed outside of the public
sector; and
(b) repeal
the Employment of Non-citizens Act 1978; and
(c) for
related
purposes.
MADE by the National Parliament to come into operation in accordance with a
notice in the National Gazette by the Head of State,
acting with, and in
accordance with, the advice of the
Minister.
PART
I. – PRELIMINARY.
1. PURPOSE
OF
ACT.
The
purpose of this Act is to provide a balance between the needs of the economy for
foreign labour and the aspirations of Papua New
Guineans for decent work
by –
(a) assisting
business to attract and retain the services of qualified, skilled and
experienced non-citizens without unnecessary impediments;
and
(b) promoting
a work permit system that contributes to the creation of employment, training
and skills-acquisition opportunities for all
Papua New
Guineans.
2. COMPLIANCE
WITH CONSTITUTIONAL
REQUIREMENTS.
(1)
This Act, to the extent that it regulates or restricts a right or freedom
referred to in Subdivision
III.3 (qualified rights) of the
Constitution,
namely –
(a) the
right to freedom from arbitrary search and entry conferred by
Section 44 of the
Constitution; and
(b) the
right to freedom of employment conferred by
Section 48 of the
Constitution; and
(c) the
right to privacy conferred by
Section 49 of the
Constitution; and
(d) the
right to freedom of information conferred by
Section 51 of the
Constitution; and
(e) the
right to freedom of movement conferred by
Section 52 of the
Constitution,
is
a law that is made for the purposes of complying with
Section 38 of the
Constitution, taking
account of the National Goals and Directive Principles and Basic Social
Obligations and of giving effect to the public interest
in public welfare.
(2)
For the purposes of
Section 41 of the
Organic Law on Provincial
Governments and Local-level Governments, it is declared that this law
relates to a matter of national interest.
3. INTERPRETATION.
(1)
In this Act, unless the contrary intention appears –
“authorised
officer” means an officer appointed under
Section 47;
“bridging work
permit” means a work permit granted under
Section 23;
“child”
means a legitimate or legitimated child or step-child, or in relation to its
mother an illegitimate child, and includes an adopted
child;
“commercial”
means wholly or primarily for profit;
“dependent”
means, in relation to a person, the spouse of that person not living apart from
that person under a decree of court or a deed of
separation and an unmarried
child of that person under the age of 21 years;
“employee”
means a non-citizen employed in accordance with this Act;
“employer”
means a person by whom an employee is employed;
“employer’s
register” means a register kept by an employer under
Section 39;
“employment”
includes –
(a) employment
under a contract of service; or
(b) services
provided under a contract for service (including consultancy arrangements);
or
(c) self-employment;
or
(d) voluntary
employment (including for a religious or charitable organisation); or
(e) temporary,
part-time and casual employment;
and
“employ and
work” have the corresponding meaning;
“exemption”
means an exemption under
Section 51 of this
Act; and
“exempt”
has a corresponding meaning;
“general work
permit” means a work permit granted under
Section 22 or
renewed under
Section 26;
“National Training
Council” means the body established under
Section 3 of the
National Training Council Act
1991;
“non-citizen”
means a person other than an automatic citizen, a citizen by descent or a
naturalised citizen;
“occupation”
means any profession, art, business, trade, calling, following or occupation
(including service for a religious or charitable organization)
in which a person
is or may be engaged;
“place of
origin” means a town or city in a country to which a non-citizen
has right of entry and residence;
“prescribed”
means prescribed by the Regulations made under this Act;
“proficient”
means able to speak and understand sufficiently for normal conversational
purposes;
“renewal”
means the renewal of a work permit concerning the same employee, the same
employer and the same occupation;
“register”
means the register of work permits kept by the Secretary under
Section 37;
“self-employed”
means engaged in an occupation but not employed by an employer;
“spouse”
means the husband or wife of that person and includes a de facto husband or
wife;
“the
Secretary” means the Head of Department administering this Act;
“this
Act” includes the Regulations made under this Act;
“volunteer”
means wholly or primarily for reward other than profit, and;
“voluntary”
has a corresponding meaning;
“volunteer work
permit” means a work permit granted under
Section 22 or
renewed under
Section 26;
“work
permit”
means –
(a) a
general work permit granted under
Section 7(1)(a);
or
(b) a
volunteer work permit granted under
Section 7(1)(b);
or
(c) a
bridging work permit granted under
Section 7(1)(c).
(2)
For the purposes of this Act, a non-citizen or self-employed non-citizen
is to be deemed to be employed in the country notwithstanding
that the
employment is carried on partly within and partly outside the country.
4. ACT
BINDS THE
STATE.
This
Act binds the State.
5. APPLICATION.
(1)
This Act does not apply to a non-citizen who is –
(a) employed
within a Public Authority as defined in
Public Employment (Non-citizens) Act
1978; or
(b) employed
as official personal staff under the
Official Personal Staff Act
1980; or
(c) employed
within Diplomatic Corps (other than those non-citizens engaged locally) who are
covered by the Diplomatic and
Consular Privileges and Immunities Act 1975; or
(d) employed
by organizations granted designated aid status under the
Aid Status (Privileges and
Immunities) Act 1977 (other than those non-citizens engaged locally); or
(e) granted
a Resident (Long Term) entry permit under the
Migration Act 1978.
(2)
This Act does not apply to an employer or employees exempted from all of
the provisions of this Act under
Section 51.
PART
II. – EMPLOYMENT PROHIBITED WITHOUT VALID WORK PERMIT.
6. PROHIBITION
OF EMPLOYMENT WITHOUT VALID WORK
PERMIT.
(1)
A person who employs a non-citizen in an occupation is guilty of an
offence, unless a work permit has been granted to that employer
in respect of
that non-citizen and that occupation, and the work permit is still valid in
respect of that non-citizen and that occupation.
Penalty: A fine not exceeding
K20, 000.00.
(2)
A non-citizen who is employed by a person in an occupation is guilty of
an offence, unless a work permit has been granted to that
employer in respect of
that non-citizen and that occupation, and the work permit is still valid in
respect of that non-citizen and
that occupation.
Penalty: A fine not exceeding
K10, 000.00.
(3)
A self employed non-citizen who is employed in an occupation is guilty of
an offence, unless a work permit has been granted to that
non-citizen in respect
of that occupation, and the work permit is still valid in respect of that
non-citizen and that occupation.
Penalty: A fine not exceeding
K10, 000.00.
PART
III. – TYPES, PURPOSE, TERM AND LIMITATIONS OF WORK PERMITS.
7. TYPES
OF WORK
PERMITS.
(1)
A work permit may be –
(a) a
general work permit; or
(b) a
volunteer work permit; or
(c) a
bridging work
permit.
(2)
The Regulation shall prescribe the forms of the work permits.
8. PURPOSE
OF WORK
PERMITS.
(1)
A general work permit is to be granted for work of a commercial
nature.
(2)
A volunteer work permit is to be granted for work of a voluntary
nature.
(3)
A bridge work permit is to be granted for the purpose specified in
Section 23.
9. TERM
OF WORK
PERMITS.
(1)
A work permit, except a bridging work permit, may be granted for a short
term or for a long term.
(2)
A short term work permit may be granted for a period of up to 6 months
from the date it is granted by the Secretary.
(3)
A long term work permit may be granted for a period from 6 months up to 5
years from the date it is granted by the Secretary.
(4)
A bridging work permit may be granted for a period of up to 60 days from
the date it is granted by the Secretary.
10. WORK
PERMIT LIMITED TO SPECIFIED
OCCUPATION.
(1)
A work permit allows –
(a) a
specified employer to employ a specified non-citizen in a specified occupation;
or
(b) a
specified self-employed non-citizen to engage in a specified
occupation.
(2)
A work permit is not transferable in respect of the employer or the
non-citizen, or the occupation.
11. WORK
PERMITS MAY BE SUBJECT TO
CONDITIONS.
(1)
A work permit may be subject to such conditions (if any) as are specified
in the work permit.
(2)
A person who breaches the conditions in a work permit is guilty of an
offence.
Penalty: A fine not exceeding
K10, 000.00
PART
IV. – RESERVED AND ADVERTISED OCCUPATIONS, LANGUAGE AND SKILLS
REQUIREMENTS, ETC.
12. OCCUPATIONS
RESERVED FOR
CITIZENS.
(1)
The Regulation may prescribe occupations which are reserved for
citizens.
(2)
A work permit is not to be granted to a non-citizen in respect of an
occupation reserved under
Subsection (1).
13. OCCUPATIONS
TO BE
ADVERTISED.
(1)
The Regulation may prescribe occupations which must be advertised within
Papua New Guinea, in relation to which a work permit must
be obtained in
accordance with this Act.
(2)
A work permit shall not be granted to a non-citizen in respect of an
occupation prescribed under
Subsection (1),
until such time as the Secretary is satisfied, that –
(a) the
requirement to advertise referred to in
Subsection (1) has
been complied with; and
(b) there
is no suitable citizen who can be employed in the
occupation.
14. REVIEW
OF RESERVED AND ADVERTISED
OCCUPATIONS.
(1)
The Secretary shall, on or before the expiration of two years from the
date of coming into operation of this Act, and from time to
time as the
Secretary thinks fit, review the lists of prescribed occupations under
Section 12 and
advertised occupations under
Section 13.
(2)
When conducting the review under
Subsection (1), the
Secretary shall consult with the National Training Council.
(3)
Following a review under
Subsection (1), the
Secretary is to recommend to the Minister any additions or variations to, or
deletions from, the lists of occupations prescribed
under
Section 12 and
advertised occupations under
Section 13.
(4)
Where a non-citizen has been employed in an occupation in relation to
which a work permit is still valid, and that occupation –
(a) becomes
a reserved occupation under
Section 12; or
(b) must
be or has been advertised under
Section 13,
the
non-citizen may continue to be employed in that occupation until the expiration
of the work permit, notwithstanding that the occupation
has become reserved or
must be or has been advertised.
15. GENERAL
REQUIREMENTS AS TO
SKILLS.
(1)
Where, in the opinion of the Secretary, it is necessary for an employee
to possess certain qualifications, skills and experience in
respect of a
particular type of occupation, the Secretary may direct that the employee given
evidence of those qualifications, skills
and experience prior to the granting of
a work permit.
(2)
The Regulation may prescribe certain requirements as to qualifications,
skills and experience for occupations.
16. PROFESSIONAL
REGISTRATION.
Where
it is necessary by law for an employee to register with a professional body in
order for the employee to be employed in a particular
occupation, the Secretary
shall not grant a work permit in respect of that employee and that occupation,
until such time as written
proof of registration has been provided.
17. LANGUAGE
REQUIREMENTS.
(1)
The Secretary may not grant a work permit unless the Secretary is
satisfied that a non-citizen is proficient in English,
Pisin or
Hiri Motu.
(2)
Notwithstanding
Subsection (1), the
Secretary may grant a work permit to a non-citizen who does not have the
required language proficiency if, in the opinion of
the Secretary, there is good
cause or it is in the national interest to grant the work permit.
(3)
The Regulation may prescribe further matters in relation to language
requirements.
PART
V. – APPLICATION FOR WORK PERMIT, ETC.
18. APPLICATION
FOR WORK
PERMIT.
(1)
An employer, prior to engaging a non-citizen in any occupation, shall
make an application for a work permit.
(2)
A self-employed non-citizen, before commencing in any occupation, shall
make an application for a work permit.
19. NON-CITIZEN
MUST BE OUTSIDE OF THE
COUNTRY.
(1)
Subject to
Subsection (2), a
work permit shall not be granted unless the non-citizen, or self-employed
non-citizen, is outside of Papua New Guinea at the time
of granting of the work
permit.
(2)
Notwithstanding
Subsection (1) –
(a) if
there is a valid work permit in respect of a non-citizen or a self employed
non-citizen; and
(b) an
application for another work permit has been made in respect of the non-citizen
or self-employed
non-citizen,
a
work permit may be granted irrespective of whether or not the non-citizen or
self-employed non-citizen is inside or outside of Papua
New Guinea.
20. APPLICATION
MADE IN PRESCRIBED
MANNER.
(1)
An application for a work permit shall –
(a) be
in the prescribed form; and
(b) contain
the prescribed particulars; and
(c) be
accompanied by such documents as are prescribed; and
(d) be
accompanied by a notification of the place of origin, to which place the
employer is liable, under
Part X, for the
repatriation of the non-citizen and his or her dependents on the termination of
the employment of the non-citizen; and
(e) be
accompanied by the prescribed non-refundable
fee.
(2)
In considering an application for a work permit, the Secretary may
request the applicant to provide such further or better particulars
and
documentation as the Secretary considers necessary.
21. COMPLETE
AND CORRECT
APPLICATION.
An
application for work permit is deemed to be made only when the Secretary accepts
the application as complete and correct.
PART
VI. – GRANTING OF WORK PERMITS.
22. SECRETARY
TO GRANT WORK
PERMIT.
(1)
The Secretary may grant or refuse to grant an application for a work
permit.
(2)
Written notice of the grant or refusal of an application shall be given
to the applicant within 42 days of the making of a complete
and correct
application.
(3)
Where an application is refused, or a work permit is granted in terms
other than those applied for, the notice under
Subsection (2)
shall state the grounds of the refusal to grant the work permit or of the grant
in terms other than those applied for.
(4)
An employer or self-employed non-citizen who is aggrieved by a decision
of the Secretary under
Subsection (3) may,
within 14 days of receipt of the notice of refusal, appeal to the
Minister.
(5)
An appeal under
Subsection (4),
shall –
(a) be
in writing; and
(b) specify
the grounds of the appeal; and
(c) be
accompanied by the prescribed non-refundable
fee.
(6)
When considering an appeal under
Subsection (4), the
Minister shall obtain the recommendation of the Secretary in respect of the
appeal and consider the merits of the appeal and
within 28 days of receipt of
the appeal –
(a) decide
whether to grant or refuse the appeal; and
(b) advise
the employer or self-employed non-citizen and the Secretary in writing of his or
her decision and of the reasons for his or
her decision; and
(c) if
the appeal is granted, give such direction to the Secretary as is
appropriate.
(7)
The Secretary shall comply with a direction given by the Minister under
Subsection (6)(c).
23. BRIDGING
WORK
PERMIT.
(1)
Where –
(a) a
valid work permit is about to expire; and
(b) the –
(i) non-citizen is
to be employed in a different occupation or by a different employer; or
(ii) self-employed
non-citizen is to be engaged in a different occupation;
and
(c) the
application for another work permit has not been determined; and
(d) the
delay in determining the application has not been caused by the applicant;
and
(e) without
a work permit, the non-citizen or self-employed non-citizen would be required
under Section 19(1)
to be outside of Papua New
Guinea,
the
Secretary may grant a bridging work permit to the applicant.
(2)
A bridging work permit shall be in the prescribed form and subject to
such conditions as are specified in the work permit.
PART
VII. – RENEWAL OF WORK PERMITS.
24. RENEWAL
OF WORK
PERMITS.
(1)
The employer of a non-citizen, or a self-employed non-citizen, may apply
to the Secretary for renewal of a work permit.
(2)
The application for renewal shall be made prior to the expiration of the
work permit.
25. APPLICATION
FOR
RENEWAL.
(1)
An application for renewal shall –
(a) be
in the prescribed form; and
(b) contain
the prescribed particulars; and
(c) be
accompanied by such documents as are prescribed; and
(d) be
accompanied by a notification of the place of origin, to which place the
employer is liable, under
Part X, for the
repatriation of the non-citizen and his or her dependents on the termination of
the employment of the non-citizen; and
(e) be
accompanied by the prescribed non-refundable
fee.
(2)
In considering an application for renewal, the Secretary may request the
applicant to provide such further or better particulars and
documentation as the
Secretary considers necessary.
26. SECRETARY
MAY GRANT APPLICATION FOR
RENEWAL.
(1)
In considering an application for renewal, the Secretary may take into
account –
(a) the
conduct of the employer or the non-citizen or the self-employed non-citizen;
and
(b) the
commitment of the employer to the training and development of Papua New
Guineans; and
(c) any
other matters the Secretary considers
relevant,
and
may renew the permit by the issue of a new permit for a further period as set
out in
Section 9.
(2)
Written notice of the grant or refusal of an application for renewal
shall be given to the applicant within 42 days of the making
of a complete and
correct application.
(3)
Where an application for renewal is refused, or is granted in terms other
than those applied for, the notice under
Subsection (2)
shall state the grounds of the refusal to grant the renewal or of the grant in
terms other than those applied for.
(4)
An employer of self-employed non-citizen who is aggrieved by a decision
of the Secretary to refuse to grant an application for a renewal
of a work
permit may, within 14 days of receipt of the notice of refusal, appeal to the
Minister.
(5)
An appeal lodged under
Subsection (4)
shall –
(a) be
in writing; and
(b) specify
the grounds of the appeal; and
(c) be
accompanied by the prescribed non-refundable
fee.
(6)
The Minister shall obtain the recommendation of the Secretary in respect
of the appeal and consider the merits of the appeal and within
28 days of
receipt of the appeal –
(a) decide
whether to grant or refuse the appeal; and
(b) advise
the employer or self-employed non-citizen and the decision; and
(c) when
granting an appeal give such direction to the Secretary as is
appropriate.
(7)
The Secretary shall comply with a direction given by the Minister under
Subsection (6)(c).
27. WORK
PERMIT EXPIRES PRIOR TO
RENEWAL.
Where –
(a) an
application for a renewal of a work permit has been made; and
(b) the
application for the renewal has not been determined before the expiry date of
the work
permit,
the
work permit remains valid for 60 days from the date of expiry of the work
permit, or until the application is determined, whichever
occurs first.
28. COMPLETE
AND CORRECT
APPLICATION.
An
application for renewal is deemed to be made only when the Secretary accepts the
application as complete and correct.
PART
VIII. – CANCELLATION ETC., OF WORK PERMITS.
29. VALID
ENTRY
PERMIT.
A
work permit becomes invalid, and cease to have any effect, if the non-citizen or
self-employed non-citizen ceases to be the holder
of a valid entry permit under
the Migration Act 1978.
30. CONTINUING
EMPLOYMENT.
A
work permit becomes invalid, and ceases to have any effect, if the employment of
the non-citizen is terminated for any reason.
31. CANCELLATION
OF WORK
PERMITS.
(1)
Where the Secretary is satisfied that –
(a) the
application for a work permit contained information that was false or misleading
in any material particular; or
(b) there
has been a contravention of any conditions of the work permit; or
(c) a
non-citizen or self-employed non-citizen is respect of whom a work permit has
been granted is not a fit and proper person to continue
to have a work permit;
or
(d) a
non-citizen or employer or self-employed non-citizen is otherwise in breach of
this
Act,
the
Secretary may cancel the work permit.
(2)
Where it is proposed to cancel a work permit under
Subsection (1), the
Secretary shall serve on the non-citizen and employer, or self-employed
non-citizen, a notice –
(a) advising
the non-citizen and employer, or self-employed non-citizen, of the
Secretary’s intention to cancel the work permit
and the reasons for the
intended action; and
(b) requiring
the non-citizen and employer, or self-employed non-citizen, within 14 days of
the date of service of the notice to make
written representations to the
Secretary as to why the work permit should not be
cancelled.
(3)
The Secretary shall consider any representations made under
Subsection (2)(b)
before taking any action to cancel the work permit under
Subsection (1).
(4)
Subsections (2)
and (3) do not apply if
the Secretary is satisfied that cancellation of a work permit is required in the
national interest provided any cancellation
of a work permit in the national
interest shall not be biased, arbitrary or capricious.
(5)
A non-citizen and employer or self-employed non-citizen who is aggrieved
by a decision of the Secretary to cancel a work permit may,
within 14 days of
receipt of the notice of refusal, appeal the Minister.
(6)
An appeal under
Subsection (5)
shall –
(a) be
in writing; and
(b) specify
the grounds of the appeal; and
(c) be
accompanied by the prescribed non-refundable
fee.
(7)
The Minister shall obtain the recommendation of the Secretary in respect
of the appeal and consider the merits of the appeal and within
28 days of
receipt of the appeal –
(a) decide
whether to grant or refuse the appeal; and
(b) advise
the non-citizen and employer or self-employed non-citizen and the Secretary in
writing of the decision and of the reasons for
the decision; and
(c) where
granting an appeal give such direction to the Secretary as is
appropriate.
(8)
The Secretary shall comply with a direction given by the Minister under
Subsection (7)(c).
32. TERMINATION
OF
EMPLOYMENT.
(1)
Notwithstanding the provisions of any other law or of any term or
condition of any contract or agreement, an employer shall terminate
the
employment of a non-citizen who is in the employer’s employment within 14
days of the employer being notified in writing
by the Secretary
that –
(a) the
non-citizen ceases to be the holder of a valid entry permit under the
Migration Act 1978; or
(b) a
work permit in respect of that non-citizen has been cancelled under
Section 31.
(2)
Every employer who, under
Subsection (1),
terminates the employment of a non-citizen must, by notice in writing, inform
the Secretary of that termination within 14 days of
the termination of
employment.
(3)
The termination of employment of a non-citizen under
Subsection (1)
shall not be –
(a) capable
of negotiation with an industrial organisation representing the non-citizen;
or
(b) a
matter in respect of which any form of industrial action may be taken by that
industrial organization; or
(c) the
subject of a trade dispute or of conciliation proceedings or any method of
redress; or
(d) an
industrial matter within the meaning of the
Industrial Organizations Act
1962.
33. REVOCATION
AND VARIATION OF CONDITIONS,
ETC.
(1)
The Secretary may, by written notice at any time, vary or revoke any
conditions or impose new or additional conditions in the work
permit.
(2)
Where it is proposed to take any action under
Subsection (1), the
Secretary shall serve on the non-citizen and employer, or self-employed
non-citizen, a notice –
(a) advising
the non-citizen and employer, or self-employed non-citizen, of the
Secretary’s intention to take such action and the
reasons for the intended
action; and
(b) requiring
the non-citizen and employer, or self-employed non-citizen, within 14 days of
the date of service of the notice to make
written representations to the
Secretary as to why the action should not be
taken.
(3)
The Secretary shall consider any representations made under
Subsection (2)(b)
before taking any action under
Subsection (1).
(4)
An employer or self-employed non-citizen who is aggrieved by a decision
of the Secretary under
Subsection (1) may,
within 14 days of receipt of the notice of variation, revocation or imposition,
appeal to the Minister.
(5)
An appeal under
Subsection (4)
shall –
(a) be
in writing; and
(b) specify
the grounds of the appeal; and
(c) be
accompanied by the prescribed non-refundable
fee.
(6)
The Minister shall obtain the recommendation of the Secretary in respect
of the appeal and consider the merits of the appeal and within
28 days of
receipt of the appeal –
(a) decide
whether to grant or refuse the appeal; and
(b) advise
the employer of self-employed non-citizen and the Secretary in writing of the
decision and of the reasons for the decision;
and
(c) when
granting an appeal give such direction to the Secretary as is
appropriate.
PART
IX. – WORK PERMIT AND WORK PERMIT CARD.
34. WORK
PERMIT AND WORK PERMIT
CARD.
(1)
Where the Secretary grants an application under
Parts VI and
VII the Secretary
shall –
(a) issue
a work permit, in the prescribed form, to the applicant; and
(b) issue
a work permit card, in the prescribed form, to the
non-citizen.
(2)
Where the Secretary grants an application under
Parts VI and
VII the Secretary shall,
in the case of a self-employed non-citizen, issue a work permit and a work
permit card to the self-employed
non-citizen.
35. PRODUCTION
OF WORK PERMIT AND WORK PERMIT
CARD.
(1)
A work permit and work permit card shall be produced by the employer or
the non-citizen employee or the self-employed non-citizen,
as the case may be,
when required to do so by an authorised officer.
(2)
A person who fails to comply with
Subsection (1) is
guilty of an offence.
Penalty: A fine not exceeding
K1,000.00.
36. RETURN
OF WORK PERMIT AND WORK PERMIT
CARD.
(1)
If a work permit is cancelled or the employment is terminated, the
employer and the non-citizen employee, and the self-employed non-citizen,
as the
case may be, shall return the work permit or work permit card, as the case may
be, to the Secretary within 14 days of the
cancellation or termination.
(2)
A person who fails to comply with
Subsection (1) is
guilty of an offence.
Penalty: A fine not exceeding
K1,000.00
37. REGISTER
OR WORK
PERMITS.
(1)
The Secretary shall keep or cause to be kept, a register to be known as
the Register of Work Permits, into which shall be entered
particulars
of –
(a) every
work permit and work permit card issued under
Section 34; and
(b) every
work permit cancelled under
Part VIII; and
(c) such
other particulars as are
prescribed.
(2)
The Register of Work Permits, or a document purporting to be, or to be a
copy of, or an extract from, the Register of Work Permits
kept under
Subsection (1) is
prima-facie evidence of the
matter contained in it.
38. DUPLICATE
WORK PERMIT AND WORK PERMIT
CARD.
(1)
Where the Secretary is satisfied that a work permit or work permit card
has been lost, defaced, or destroyed, the Secretary may issue
a
duplicate –
(a) on
payment of a prescribed fee; and
(b) where
the work permit or work permit card has been defaced, on the surrender to the
Secretary of the work permit or work permit card.
(2)
A duplicate shall be signed by the Secretary and endorsed as a duplicate
work permit or work permit card.
39. EMPLOYER’S
REGISTER.
(1)
Every employer shall keep or cause to be kept in the prescribed manner at
the employer’s sole or principal place of business
a register of
non-citizen employees in respect of whom a work permit has been granted under
Parts VI and
VII.
(2)
The employer’s register shall contain –
(a) all
current work permits granted in respect of non-citizen employees employed by the
employer; and
(b) any
notice of cancellation of a work permit under
Part VIII; and
(c) any
other prescribed
information.
(3)
The Secretary, or an authorised officer may at any reasonable time enter
any premises and inspect an employer’s register.
(4)
Any person who without reasonable excuse (proof of which is on the
person) fails to produce the employer’s register when required
to do so by
the Secretary or an authorised officer is guilty of an offence.
Penalty: A fine not exceeding
K1,000.00.
PART
X. – REPATRIATION.
40. REPATRIATION
ON TERMINATION OF
CONTRACT.
If
the employment of a non-citizen is terminated for any reason, including but not
limited to, termination by –
(a) the
employer; or
(b) the
non-citizen; or
(c) agreement
between the parties; or
(d) expiration
of the employment contract; or
(e) reason
of the inability of the employee to comply with the provisions of the employment
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.
41. REPATRIATION
BY
LAW.
Every
non-citizen who is employed in Papua New Guinea and who is ordered to leave
Papua New Guinea in accordance with the provisions
of any law for the time
being in force in Papua New Guinea, shall be repatriated at the expense of the
employer, at the time of the
order, to the place of origin.
42. REPATRIATION
OF
DEPENDENTS.
If
any dependent of any non-citizen has been brought to the place of employment by
the employer or by any person acting on behalf
of the employer, such dependent
shall be repatriated to the place of origin at the expense of the employer when
the non-citizen is
repatriated.
43. EXPENSES
OF
REPATRIATION.
(1)
The expenses of repatriation includes reasonable 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.
(2)
If a non-citizen or any dependent of a non-citizen dies during the period
of employment, or before completion of repatriation under
this Act, 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.
44. STATEMENT
OF ARRANGEMENT FOR
REPATRIATION.
When
a non-citizen and the non-citizen’s accompanying dependents 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 the repatriation of the
non-citizen and the non-citizen’s accompanying dependents.
45. DISCHARGE
OF REPATRIATION
OBLIGATIONS.
If
the employer fails to fulfil the employer’s obligation in respect of
repatriation, that obligation shall be discharged by
or under the direction 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.
46. REPATRIATION
OFFENCE.
A
person who fails to comply with this Part is guilty of an offence.
Penalty: A fine not exceeding
K10,000.00.
PART
XI. – AUTHORISED OFFICERS, ETC.
47. APPOINTMENT
OF AUTHORISED
OFFICERS.
The
Secretary may, by notice in the National Gazette, appointment persons to be
authorised officers for the purpose of this Act.
48. POWERS
OF AUTHORISED
OFFICERS.
(1)
An authorised officer may at all reasonable times –
(a) enter
and inspect any premises, place, aircraft, vehicle or vessel on or in which
there is employed, or the authorised officer reasonably
believes to be employed,
a non-citizen to whom this Act applies; and
(b) examine
any work done by the non-citizen and inspect any machinery, equipment and
facilities the authorised officer considers necessary
in order to ascertain
whether the provisions of this Act have been complied with; and
(c) require
any person to give any information or to answer any question relating to the
employment of the non-citizen to whom this Act
applies; and
(d) require
any person to produce any register, record, notice, list, contract or other
document (including passport) which is in the
person’s possession or
custody or under the control of such person and require any person to give an
explanation of any entry
therein; and
(e) examine
and copy any, or any part of, such register, record, notice, list, contract, or
other document (including passport) which
appears to the authorised officer to
have relevance to the authorised officer’s inspection or
enquiry.
(2)
An authorised officer exercising or intending to exercise any of the
powers under this section shall, when requested, produce written
evidence of his
or her appointment as an authorised officer.
(3)
An authorised officer entering any premises under
Subsection (1) may
be accompanied, if necessary, by an interpreter.
(4)
Any person who –
(a) refuses
or fails without reasonable cause (proof of which is on the person), to give any
information or to produce any register, record,
notice, list, contract or other
document, or who gives any information that the person knows to be false in any
material particular
when required to do so under
Subsection (1);
or
(b) hinders
or obstructs an authorised officer in the exercise or performance of the
authorised officer’s powers or functions under
this Act; or
(c) impersonates
an authorised
officer,
is
guilty of an offence.
Penalty: A fine not exceeding
K5,000.00 or imprisonment for a term not exceeding six months.
49. IMMUNITY
OF AUTHORISED
OFFICERS.
An
authorised officer is not liable for any damage occasioned by carrying out the
provisions of this Act unless the damage was occasioned
maliciously or without
reasonable cause.
PART
XII. – WORK PERMIT TRUST ACCOUNT.
50. WORK
PERMIT TRUST
ACCOUNT.
(1)
The Work Permit Trust Account established under Section 22 of the
repealed Employment of Non-citizens Act 1978 continues in existence
under that
name.
(2)
There shall be paid into the Work Permit Trust Account 50% of all fees
and penalties paid under this Act.
(3)
There shall be paid out of Work Permit Trust Account such amounts as the
Secretary considers appropriate for the purposes of improving
and making more
effective the administration and implementation of this Act.
(4)
Payment made out of the Work Permit Trust Account, which are not for the
purposes of improving and making more effective the administration
and
implementation of this Act, shall require the prior written approval of the
Departmental Head of the Department responsible for
treasury matters.
(5)
The Work Permit Trust Account shall be administered by the Secretary who
shall –
(a) authorise
all payments out of the Trust Account only for the purposes specified in
Subsection (3) and
for the purposes allowed by
Subsection (4);
and
(b) maintain
such records pertaining to the Trust Account as are required by the Departmental
Head of the Department responsible for financial
management matters; and
(c) furnish
monthly statements and summaries of the account to the First Assistant Secretary
(Public Account) of the Department responsible
for financial management
matters.
PART
XIII. – MISCELLANEOUS.
51. EXEMPTION.
(1)
The Minister, acting on advice of the Secretary, may by notice published
in the National Gazette, exempt –
(a) an
employee, or class of employees; or
(b) a
self-employed non-citizen, or class of self-employed non-citizens; or
(c) an
employer, or class of
employers,
from
all any of the provision of this Act.
(2)
An exemption under
Subsection (1) may
be made unconditionally or subject to such conditions as are specified in the
notice.
(3)
A notice under
Subsection (1)
shall state the reasons for the exemption.
52. GOOD
CORPORATE CITIZENS OF PAPUA NEW
GUINEA.
(1)
The Minister, acting on the advice of the Secretary, may declare by
notice in the National Gazette an employer to be a Good Corporate
Citizen of
Papua New Guinea.
(2)
The Regulation may prescribe benefits for a Good Corporate Citizen which
shall be inconsistent with the provisions of this Act.
53. DELEGATION.
(1)
Subject to
Subsection (2), the
Secretary may by writing, delegate to an officer all or any of Secretary’s
powers, functions and duties under this Act
(except this power of
delegation)
(2)
The Secretary shall not delegate the power under
Part VIII to cancel
a work permit.
54. COMPLIANCE
WITH
LAW.
(1)
A work permit granted under this Act does not of itself relieve an
employer or a non-citizen from compliance with any other law.
(2)
An employer or non-citizen who is granted a work permit under this Act
shall comply with any other law applying to the non-citizen
and employer and
such compliance is deemed to be a condition of every work permit granted under
this Act.
55. GUIDELINES.
The
Secretary may, by written notice, issue guidelines, not inconsistent with this
Act, for the benefit of employers or self-employed
persons seeking to make
application for work permits.
56. OFFENCES
BY OFFICERS OF A
COMPANY.
Where
an offence against this Act committed by a corporation is proved to have been
committed with the consent or connivance of any
direction, manager, secretary or
other officer of the corporation, the person, as well as the corporation, shall
be deemed to have
committed the offence.
57. GENERAL
PENALTY.
Any
person who fails to comply with a provision of this Act in respect of which a
specified penalty is not provided is guilty of an
offence.
Penalty: A fine not exceeding
K1,000.00.
58. INFRINGEMENT
NOTICES.
(1)
The Secretary may serve an infringement notice, in the prescribed form,
on a person if it appears to the Secretary that the person
has committed an
offence under,
Sections 6,
11,
35,
36 and
39.
(2)
An infringement notice is a notice to the effect that, if the person
served does not wish to have the matter determined by a court,
the person may
pay, within the time and to the person specified in the notice, the amount
specified in the notice which may not exceed
the maximum penalty specified by
this Act or the Regulation for the offence.
(3)
The Regulation shall prescribe further matters or particulars in relation
to the infringement notices.
59. INSTITUTION
OF PROSECUTION OR
PROCEEDINGS.
(1)
Subject to the approval of the Public Prosecutor, the Secretary or any
officer authorised by the Secretary, may –
(a) institute
any prosecutions or proceedings for a breach or contravention of any provision
of this Act; and
(b) appear
in any prosecution or proceeding referred to in
Paragraph (a).
(2)
Where a prosecution or proceeding is instituted by an authorised officer
under
Subsection (1), the
prosecution or proceeding shall, in the absence of evidence to the contrary, be
deemed to have been instituted by the authority
of the Secretary.
(3)
Production of written evidence purporting –
(a) to
be signed by the Secretary; and
(b) to
authorize an officer to institute any prosecution or proceeding, and shall be
accepted as evidence of the authority of the officer
to institute the
prosecution or
proceeding.
(4)
A prosecution or proceeding under this Act may be
instituted –
(a) in
the National Court; or
(b) in
the District Court where the penalty amount does not exceed
K10,000.00.
(5)
A prosecution or proceeding under this Act may be instituted in the name
of the Secretary.
(6)
The prosecution or proceeding under this Act be commenced, prosecuted or
proceeded with in accordance with rules of practice of the
National Court or the
District Court, as the case requires.
60. VERIFICATION
OF
STATEMENTS.
All
applications, statements, representations or information made or furnished to
the Secretary under or for the purposes of this
Act shall, if the Secretary so
requires, be certified by a Justice of the Peace or Commissioner for Oaths or be
verified by statutory
declaration in such form as the Secretary requires or as
is prescribed.
61. REGULATION.
The
Head of State, acting with, and in accordance with, the advice of the National
Executive Council, may make Regulations not inconsistent
with this Act,
prescribing all matters that by this Act are required or permitted to be
prescribed or that are necessary or convenient
to be prescribed, for carrying
out or giving effect to this Act, and in particular for
prescribing –
(a) different
fees for different types of work permits; and
(b) penalties
of fines not exceeding K5,000.00 for any offence against the
Regulation.
PART
XIV. – REPEAL, SAVING AND TRANSITIONAL PROVISIONS.
62. REPEAL.
The
Employment of Non-citizens Act 1978 is hereby repealed.
63. SAVING
OF
REGULATIONS.
A
Regulation made under the repeal Act, to the extent that it –
(a) was
in operation immediately before the coming into operation of this Act; and
(b) is
not inconsistent with this
Act,
is,
on that coming into operation, saved and continued in operation as if it was a
Regulation made under this Act until such time
as it is repealed by a Regulation
made under this Act.
64. SAVING
OF WORK PERMITS AND
APPLICATIONS.
(1)
All work permits made or granted under the repealed Act, to the extent
that they –
(a) were
in operation immediately before the coming into operation of this Act; and
(b) are
not inconsistent with this
Act,
are,
on that coming into operation, saved and continue in operation, as if they were
work permits granted under this Act, until they
expire or are otherwise
terminated according to law.
(2)
An application for a work permit made under the repealed Act, and is
pending immediately before the coming into operation of this
Act, shall continue
to be dealt with in accordance with the repealed Act as if the repealed Act is
still in operation.
(3)
A work permit granted in accordance with
Subsection (2)
shall be deemed to be a work permit granted under this Act.
65. REFERENCES
TO FORMER ACT,
ETC.
A
reference in any law or in any instrument to the repealed Act or a provision of
the repealed Act shall, on and after the coming
into operation of this Act,
unless the context otherwise requires, be read and construed as a reference to
this Act or to the corresponding
provision of this Act.
66. ACTIONS
NOT TO
ABATE.
Where
immediately before the coming into operation of this Act, any action,
arbitration or proceeding was pending or existing by or
against a person or body
under the repealed Act, it –
(a) does
not, on the commencement of this Act, abate or discontinue or in any way be
affected by a provision of this Act; and
(b) may
be prosecuted, continued and enforced by, against or in favour of the person or
body as if this Act had not been made.
Office of Legislative Counsel, PNG
© 1998 University of the South Pacific
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