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Vanuatu Consolidated Legislation - 2006 |
LAWS OF THE REPUBLIC OF VANUATU
CONSOLIDATED EDITION 2006
Commencement: 30 May 1983
CHAPTER 160
EMPLOYMENT
Act
1 of 1983ARRANGEMENT OF SECTIONS
PART 1 – LABOUR ADVISORY BOARD
1. Labour Advisory Board
PART 2 – APPOINTMENT, POWERS AND DUTIES OF OFFICERS
2. Commissioner of Labour
4. Dangerous and insanitary premises
5. Commissioner and labour officers to carry identity documents
PART 3 – GENERAL
7. Forced or compulsory labour
8. Prohibition of sex discrimination in employment
PART 4 – CONTRACT OF EMPLOYMENT
9. Form of contract
11. Transfer of contract
12. Duty of employer to provide work
14. Probationary period
15. Period of contract
PART 5 – REMUNERATION
16. Remuneration
17. Receipts for remuneration
21. Deductions from remuneration
PART 6 – HOURS OF WORK AND OVERTIME PAY
22. Days and hours of work
PART 7 – ANNUAL LEAVE AND SICK LEAVE
29. Annual leave
30. Manner in which annual leave to be taken
31. Remuneration during annual leave
PART 8 – EMPLOYMENT OF WOMEN AND YOUNG PERSONS
37. Restriction on dismissal of women employees
38. Prohibition of employment of persons under 12
39. Employment of persons under 14
40. Employment of persons under 15
41. Employment of persons under 18
PART 9 – SAFETY PRECAUTIONS AND MEDICAL FACILITIES
46. Notification of accidents
47. First-aid and medical treatment
PART 10 – TERMINATION OF CONTRACT
48. Termination of contract
50. Misconduct of employee
51. Employees may seek work during notice
52. Certificate of employment
53. Breach of contract by employer
PART 11 – SEVERANCE ALLOWANCE
54. Severance allowance
56. Amount of severance allowance
57. Deductions from severance allowance
PART 12 – REPATRIATION OF EMPLOYEES
58. Employee's right to repatriation
59. Repatriation of employee's family
61. Means of transport
62. Subsistence during repatriation
63. Exemption from employer's duty to repatriate
PART 13 – MISCELLANEOUS
65A. Licence fee
69. Control of prices in certain stores
70. Minister's power to prescribe housing standards
71. Apprenticeship
75. Employers may make regulations
76. Application of the Act to public service
77A. Regulations
78. Offences
79. Continuing offences
EMPLOYMENT
To provide for the general principles relating to contracts of employment and matters incidental thereto.
PART 1 – LABOUR ADVISORY BOARD
1. Labour Advisory Board
(1) There shall be established for the purposes of this Act a Labour Advisory Board (hereinafter referred to as the Board).
(2) The Board shall consist of not more than fifteen members appointed by the Minister of whom five shall be public servants and an equal number of not more than five members each representing in the opinion of the Minister the employers of labour and employees, respectively.
(3) Every member of the Board shall be appointed for such period and on such terms and conditions as the Minister shall determine.
(4) It shall be the function of the Board to consider and advise the Minister upon any matter affecting employment and labour relations referred to it by the Minister, and to exercise and perform such other duties in such manner and subject to such conditions as the Minister shall determine.
(5) Subject to any rules under this Act the Board shall regulate its procedure in such manner as it shall think fit.
PART 2 – APPOINTMENT, POWERS AND DUTIES OF OFFICERS
2. Commissioner of Labour
There shall be a Commissioner of Labour (hereinafter referred to as "the Commissioner"), a deputy commissioner of labour and such other officers (to be known as "labour officers") as shall be necessary or expedient for the purposes of this Act who shall be public servants.
3. Powers of Commissioner and labour officers
(1) For the purpose of satisfying himself that the provisions of this Act are being duly observed the Commissioner or any labour officer may at all reasonable times –
(a) enter, inspect and examine any land, building, camp, wharf, vessel or vehicle, or any place whatsoever where or about which any employee is housed or employed or where he has reason to believe that any employee is housed or employed;
(b) enter, inspect and examine any hospital or dispensary, or any sanitary arrangements used or intended to be used by employees or any water supply available for the use of employees, and take samples from the said water supply, and inquire and ascertain whether in any such hospital, dispensary or place of employment suitable medicines and remedies are provided for the use of employees;
(c) inspect kitchens and places in which food provided for the use of employees is stored, prepared or eaten, and inspect, and take samples of, such food;
(d) require any employer to produce any employee employed by him and any documents or records relating to the employment of such employee;
(e) take or remove for the purposes of analysis samples of material and substances used or handled:
Provided that the employer or any person acting on his behalf is notified of any samples or substances so taken or removed;
(f) interrogate, alone or in the presence of witnesses, the employer or any employee on any matter connected with the carrying out of the provisions of this Act, and may request information of any other person whose evidence he considers to be necessary;
(g) inquire from any employer or any person acting on his behalf regarding any matter connected with the carrying out of any of the provisions of this Act;
(h) require every employer to post and keep posted at some conspicuous place easily accessible to the employees, any notice served on him by the Commissioner:
Provided that the Commissioner or a labour officer –
(i) 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, shall notify the employer or his representative of his presence, unless he has reason to believe that such notification may be prejudicial to the performance of his duties;
(iii) if so required by the employer, shall be accompanied during any inspection or examination by the employer or his representative.
(2) The Commissioner or a labour officer may at all reasonable times inspect and take samples of and require any additions or replacements to be made to any drugs or dressings provided for the use of employees under any law or contract of service.
(3) The Commissioner or a labour officer may copy or make extracts from any document or records in the possession of an employer which relate to any employee.
4. Dangerous and insanitary premises
(1) If, in the opinion of the Commissioner or a labour officer, any land, building, camp or vessel where or about which any employee is living or where any employee is employed and which is provided for the use of any such employee is insanitary or is in such condition as to be dangerous to health or unfit for occupation or use by the employee, the Commissioner or labour officer may in writing direct the person for the time being responsible for the management of the same to discontinue such occupation or use until such repair or reconstruction or other work as may be specified in the direction has been carried out and certified by the Commissioner or labour officer to be fit for occupation or use.
(2) Where the Commissioner or labour officer gives any direction under subsection (1) the person to whom the direction is addressed, if he is of the opinion that the terms of such direction are harsh or unreasonable or that the requirements of the direction cannot be carried out within the period required, may, after giving notice thereof to the Commissioner, appeal to the Magistrates’ Court nearest to the place where such land, building, camp or vessel is situated.
(3) Every such appeal shall be made within 30 days from the date on which the said direction was communicated to such person.
5. Commissioner and labour officers to carry identity documents
The Commissioner or any labour officer, while exercising any powers or duties under this Act, shall carry on his person an identity document in a prescribed form and shall produce such document on request to any person to whom any inquiry or demand is addressed by him, and it shall be lawful for any person to refuse anything required of him by the Commissioner or labour officer until such identity document has been produced.
PART 3 – GENERAL
6. Effects of custom, agreement etc.
Nothing in this Act shall affect the operation of any law, custom, award or agreement which ensures more favourable conditions in any respect to the employees concerned than those provided for in this Act.
7. Forced or compulsory labour
(1) No person shall exact, procure, or employ forced or compulsory labour.
(2) The expression "forced or compulsory labour" in subsection (1) means all work or service which is exacted from any person under the threat of any penalty and for which that person has not offered himself voluntarily except –
(a) any work or service exacted in the course of compulsory military service for work of purely military character;
(b) any work or service which forms part of the normal civic obligations of citizens;
(c) any work or service exacted from any person as a consequence of a conviction by a court:
Provided that such work or service shall be carried out under the supervision and control of a public authority and that no person shall be hired to, or placed at the disposal of, private individuals, companies or associations;
(d) any work or service exacted in cases 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 animal disease, invasion by animal or vegetable pests, and, in general any circumstances that would endanger the existence or the well-being of the whole or part of the community;
(e) any minor communal services of a kind performed by members of a community in the direct interest of such community and which is therefore a normal civic obligation incumbent upon members of such community:
Provided that before exaction of such minor services consultation shall have been had with the members of the community or their representatives in regard to the need for such services.
8. Prohibition of sex discrimination in employment
(1) Where a woman is employed on like work with a man in the same employment she shall be entitled to remuneration at the same rate as that man.
(2) A woman is to be regarded as employed on like work with men if her work and theirs is of the same or a broadly similar nature, and the differences, if any, between the things she does and the things they do are not of practical importance in relation to terms and conditions of employment.
(3) Subsection (1) shall not apply in relation to a variation between the woman's contract and the man's contract if the employer proves that the variation is genuinely due to a material difference (other than the difference of sex) between her case and his.
PART 4 – CONTRACT OF EMPLOYMENT
9. Form of contract
A contract of employment may be made in any form, whether written or oral:
Provided that a contract of employment for a fixed term exceeding 6 months or making it necessary for the employee to reside away from his ordinary place of residence shall be in writing and shall state the names of the parties, the nature of employment, the amount and the mode of payment of remuneration, and, where appropriate, any other terms and conditions of employment including housing, rations, transport and repatriation.
10. Contracts exempt from stamp duty etc.
Contracts of employment shall be exempt from stamp duty and any other taxes or levies.
11. Transfer of contract
The transfer of any contract of employment from one employer to another shall not be binding upon the employee except with the employee's consent which in the case of a written contract must be in writing:
Provided that if a change occurs in the ownership of an undertaking as a result of a sale thereof as a going concern, inheritance, formation of a company or similar cause every contract of employment valid at the time of the change taking place shall remain in force between the employee and the new employer.
12. Duty of employer to provide work
Except in the case of, and during, an emergency which prevents him from doing so, every employer shall provide the employee with work in accordance with the contract during the period for which the contract remains in force and on such number of working days as is expressly or impliedly provided for in that contract. If the employer fails to provide work as aforesaid he shall pay to the employee, in respect of every day on which he shall so fail, remuneration at the same rate as if the employee had done the day's work.
13. Sanitary facilities etc.
Where an employee is required to work in a building the employer shall provide adequate lighting and ventilation in the building and shall at or near the place of work, provide and maintain for the use of the employees, so far as it shall be practicable in the circumstances of the undertaking –
(ii) residential accommodation;
(iii) arrangements for the health, safety and welfare of the employees.
14. Probationary period
(1) Every contract of employment for an unspecified period shall be subject to a probationary period of 15 days. This period may be increased to a maximum of 6 months, including renewals, by agreement between the parties to the contract.
(2) During the probationary period a contract of employment may be terminated by either party without notice at any time.
15. Period of contract
The maximum duration of employment that may be stipulated or implied in any contract shall in no case exceed 3 years:
Provided that in the case of a married man if he is to be unaccompanied by his family at the place of employment during the term of the contract the maximum duration so stipulated or implied –
(a) if the distance between the employee's ordinary place of residence and the place of employment exceeds 50 kilometres, shall not exceed 12 months; and
(b) if the employee's ordinary place of residence is outside Vanuatu, shall not exceed 2 years.
PART 5 – REMUNERATION
16. Remuneration
(1) All monetary remuneration of an employee shall be paid in legal tender:
Provided that, subject to the written approval of a labour officer, remuneration may be paid by bank cheque in cases in which payment in this manner is customary or is reasonable because of special circumstances or with the consent of the employee.
(2) Subject to the written approval of a labour officer, a part of the remuneration may be paid in the form of allowances in kind in industries or occupations in which such payment is customary or desirable because of the nature of industry or occupation concerned; before granting his approval the labour officer shall satisfy himself that –
(a) such allowances are appropriate for the personal use and benefit of the employee and his family;
(b) the value attributed to such allowance is fair and reasonable.
(3) Payment of remuneration or any part thereof in intoxicating liquor or noxious drugs is prohibited in all circumstances.
(4) The payment of remuneration where paid in cash shall be made on working days only at or near the place of work, unless some other arrangement known to the employee is more appropriate in any individual case.
(5) Payment of remuneration in taverns or similar establishments and, where necessary to prevent abuse, in shops or stores for the retail sale of goods and in places of amusement is prohibited except in the case of persons employed therein.
(6) Remuneration shall be paid not later than 8 days after the end of the period to which it relates.
(7) Remuneration shall be paid at regular intervals not exceeding 15 days to every employee whose remuneration is calculated by the hour, the day of the week and monthly to any other employee:
Provided that where remuneration is paid twice monthly the employer may pay allowances and accessories to wages once each month.
(8) In case of termination of contract, remuneration and allowances, including where appropriate, payments in lieu of holidays, shall be paid as soon as the service has ceased.
(9) The preceding subsections shall not apply in relation to the remuneration payable to any employee who is not ordinarily resident in Vanuatu and who has been recruited in some other country for the purpose of his employment in Vanuatu.
17. Receipts for remuneration
(1) Payment of remuneration shall be recorded on a document prepared or certified by the employer or his representative and initialled by each payee:
Provided that if the employee is unable to sign his name he shall mark the document with his thumbprint.
(2) The documents mentioned in subsection (1) shall be preserved by the employer for a period of not less than 3 years in the same way as other accountancy documents and shall be presented to a labour officer on demand.
(3) Except where otherwise authorised by the Commissioner the employer shall give an individual pay voucher to the employee at the time of payment of remuneration if the employee request such a voucher.
(4) Such voucher shall be in any form that it is convenient for the employer to adopt but shall state the names of the employer and of the employee and give details of the way in which the remuneration has been calculated.
18. Acceptance by employee of pay is no bar to subsequent proceedings
(1) No statement such as "received in full settlement of all claims" made by the employee, whether during the period of his contract or after its termination, shall have the effect of waiving any rights he may have under the said contract.
(2) The acceptance without protest or reservation by an employee of a pay document shall not be held to imply renunciation on his part of the claim for all or any part of remuneration which may be due to him and such acceptance shall not be held to imply the settlement of all claims.
19. Guarantees as regards remuneration
(1) No sum due to a contractor undertaking any public works shall be the subject of a garnishee order nor shall payment thereof be stopped to the prejudice of the employees to whom remuneration is due.
(2) Remuneration due to the employees shall be paid in priority over those due to suppliers.
20. Period of limitation
No proceedings may be instituted by an employee for the recovery of remuneration after the expiry of 3 years from the end of the period to which the remuneration relates.
21. Deductions from remuneration
(1) Except as provided in this section and subject to any collective agreement binding on the employer and the employee, no employer shall make any deduction or make any agreement with an employee for any deduction from the employee's remuneration for, or in respect of, any fine or of bad or negligent work or damage to the materials or other property of the employer:
Provided that subject to a prior written approval of a labour officer, a deduction may be made in respect of any loss or damage to materials or other property of the employer caused by the wilful misconduct or negligence of the employee.
(2) Deductions may be made from the remuneration of an employee only in respect of all or any of the following –
(a) any sums advanced by the employer to the employee, in anticipation of the regular period of payment of his remuneration;
(b) the actual cost to the employer of any materials, tools or implements supplied to the employee by the employer at the employee's request for use by him outside the course of his employment;
(c) an amount, approved by a labour officer, being the fair value of any rations of the fair rent for any accommodation provided by the employer for the employee;
(d) at a written request of an employee –
(i) the cost of any articles purchased by him on credit from the employer;
(ii) the cost of any food provided by the employer and prepared or consumed on his premises:
Provided that such cost shall not exceed the lowest price at which the employer sells such articles or food to members of the public;
(e) the amount of any membership fees or similar dues paid over by the employer at the employee's request to any trade union registered under the Trade Unions Act [Cap. 161];
(f) any sum in respect of any other matter as may be prescribed:
Provided that, except in the case of an attachment or assignment of remuneration ordered by the court, the total amount of the deductions referred to in this section may not exceed one-third of the total amount of the employee's remuneration in any pay period.
(3) Notwithstanding anything contained in subsections (1) and (2) an employer may at the request of an employee make deductions from the employee's remuneration and pay to the appropriate authority, person or account any subscriptions which the employee has agreed to contribute to any provident or pension fund or similar scheme approved by the Commissioner.
PART 6 – HOURS OF WORK AND OVERTIME PAY
22. Days and hours of work
(1) Subject to the provisions of this Part no employee shall be required to work in any undertaking more than 44 hours or 6 days in any week or more than 8 hours in any day exclusive of the time allowed for meals and tea.
(2) The limit of hours of work provided for in subsection (1) may be exceeded –
(a) in case of accident, actual or threatened, or in case of urgent work to be done to machinery or plant, or in case of an emergency, but only so far as may be necessary to avoid serious interference with the ordinary working of the undertaking;
(b) in those processes which by their nature are required to be carried on continuously by a succession of shifts:
Provided that the working hours shall not exceed 56 in a week on the average.
(3) In case of a general interruption of work due to holidays or accidents to plant, interruption of power, light or water, or similar occurrences causing serious material damage to an undertaking, hours of work in the day may be increased for the purpose of making up the hours of work which have been lost:
Provided that –
(a) hours of work which have been lost shall not be made up on more than 30 days in the year and shall be made with a reasonable lapse of time;
(b) the increase in hours of work in the day shall not exceed 1 hour;
(c) hours of work in the day shall not exceed 10; and
(d) the employer shall as soon as practicable notify the labour officer of any increase of hours of work mentioned in this subsection.
23. Work on public holidays
(1) Except where he voluntarily undertakes so to do no employee shall be required to work on a Sunday or public holiday.
(2) Subsection (1) shall not apply in relation to persons employed in –
(a) undertakings engaged in the transport of passengers or goods by road, sea or air, including the handling of passengers or goods at docks, quays, wharves, warehouses or airports;
(b) undertakings of public utility including provision of water or gas, generation or supply of electricity, postal and telecommunication services, sewerage and similar services;
(c) hotels, guest houses, bars, restaurants, clubs and similar establishments;
(d) theatres and places of public amusement;
(e) establishments for the treatment and care of the sick, infirm, destitute or mentally unfit;
(f) newspaper and' radio broadcasting undertakings;
(g) animal husbandry;
(h) any other work approved, on the application of an employer, by a labour officer for the purpose of this subsection, having regard to the requirements of the proper management of the undertaking and the convenience of the public.
(3) An employee working on a Sunday or public holiday in pursuance of subsection (2) shall be granted an equivalent period of time off work on another day.
24. Meal and tea breaks
Every employee who is at work for more than 6 consecutive hours on 1 day shall be granted a break of 1 hour for a meal and a tea break of 20 minutes or 2 tea breaks of 10 minutes each.
25. Weekly day of rest
Every employee shall be entitled to a weekly rest of 24 consecutive hours which shall normally fall on a Sunday except where another day has been fixed by agreement between employee and employer or in any trades where it is usual to take another day:
Provided that in any undertaking where work is continuous and where simultaneous taking of the day of rest by all the staff would be to the prejudice of either the public or the proper working of the undertaking the employer may grant the weekly day of rest by rotation or may divide it into 2 half-days. In any such case the allocation of the weekly day of rest shall be posted up at the place of work.
26. Overtime pay
(1) In respect of work carried out in excess of the normal hours of work mentioned in section 22(1) an employee shall be paid overtime at the following rates –
(a) for work on public holidays or Sundays: at a minimum rate equal to one-and-a-half times the normal hourly rate;
(b) for work carried out in excess of the normal weekly hours of work –
(i) for the first 4 hours: at a minimum rate equal to one-and-a-quarter times the normal hourly rate;
(ii) in excess of 4 hours: at a minimum rate equal to one-and-a-half times the normal hourly rate;
(c) for work (other than work as a night watchman) carried out at night between 8 p.m. to 4 a.m. in excess of the normal weekly hours of work: a minimum rate equal to one-and-three-quarter times the normal hourly rate.
(2) Subsection (1) shall not apply to persons engaged in domestic service of the employer.
27. Classes of employees to whom sections 22-26 do not apply
Nothing in sections 22 to 26 inclusive shall apply to or in relation to –
(a) any undertaking in which only members of the employer's family are employed;
(b) offices in which staff is engaged in connection with the administration of public authority;
(c) persons occupying positions of management or employed in a confidential capacity;
(d) such other classes of persons as may be prescribed.
28. Meaning of "hours of work"
In this Part the expression "hours of work" means the time during which an employee is at the disposal of the employer and does not include rest periods during which he is not at the disposal of the employer.
PART 7 – ANNUAL LEAVE AND SICK LEAVE
29. Annual leave
(1) Every employer shall grant an employee who has been in continuous employment with him for 12 consecutive months annual leave on full pay at the rate of 1 working day for each month of employment.
(2) The rate of the annual leave provided for in subsection (1) shall be increased to 2 working days after 20 years, 4 working days after 25 years and to 6 working days after 30 years service in the same undertaking, whether continuous or not:
Provided that this subsection shall not apply in relation to employees in agricultural undertakings.
(3) For the purpose of this section there shall be included in the period of continuous employment any periods of absence from work caused by –
(a) an accident at work duly certified by a recognised medical practitioner;
(b) illness arising from employment duly certified by a recognised medical practitioner;
(c) maternity leave up to a period of 12 weeks;
(d) illness duly certified by a medical practitioner up to a period of 3 months.
30. Manner in which annual leave to be taken
(1) The annual leave shall be taken in one period or if the employer and the employee so agree, in not more than 2 separate periods.
(2) If the employer and the employee so agree, the annual leave or either of its parts, may be taken wholly or partly in advance before the employee has acquired entitlement thereto.
(3) The date of the annual leave shall be fixed by the employer, who shall in so far as it shall be practicable in the circumstances of the undertaking, comply with the employee's request in this respect.
31. Remuneration during annual leave
The employer shall pay to the employee during the annual leave remuneration at least equal to the employee's average remuneration for the 12 months preceding the commencement of the leave:
Provided that such remuneration unless the parties otherwise agree need not include any bonuses, overtime pay, expatriation allowances or reimbursement of expenses.
32. Entitlement when contract terminated
If a contract of employment terminates before the employee has acquired entitlement to annual leave, an allowance calculated on the basis of the entitlement provided for in section 29 shall be paid in the place of leave:
Provided that if the contract has been broken by the employee such allowance shall only be payable on condition that the employee has completed at least 6 months service, and, that in the case of hourly or daily paid employees 1 month service shall mean not less than 22 days' work carried out within the month.
33. Duration of entitlement
After leaving the service of his employer any employee may avail himself of his annual leave and travel, if any, within 6 months counting from the date on which he ceased to work for that employer:
Provided that travel shall only be paid for by the employer if the employee actually makes the journey.
34. Sick leave
(1) Subject to subsection (2), every employee who has been in continuous employment with the same employer for more than 12 months shall be entitled in every year to 21 working days' leave on full pay on grounds of illness.
(2) An employee who absents himself from work on grounds of illness shall, except where the employer is aware of the nature of the illness, as soon as practicable notify the employer of the illness and if he remains ill –
(a) within the municipal boundaries of Port Vila or Luganville for more than 2 days;
(b) in any other area for more than 4 days,
shall forward to the employer a medical certificate of illness.
(3) A medical certificate issued for the purpose of showing good and sufficient cause for absence from work shall not be valid in respect of any period in excess of 4 days before the day on which the employee had been examined by the medical practitioner issuing the certificate.
(4) The employer may, at his own expense, cause an employee who is absent from work on grounds of illness to be examined by a medical practitioner.
PART 8 – EMPLOYMENT OF WOMEN AND YOUNG PERSONS
35. Prohibition of employment of women at night
(1) Subject to subsection (2), women shall not be employed during the night in any undertaking, except where the night work –
(a) has to do with raw materials or materials in course of treatment which are subject to rapid deterioration;
(b) is necessitated by an emergency which it was impossible to foresee and which is not of a recurring character;
(c) is that in a responsible position of management held by a woman who is not ordinarily engaged in manual work;
(d) is that of nursing and of caring for the sick, or other health or welfare work, including work in pharmacy;
(e) is carried on in a theatre or other place of public amusement;
(f) is carried on in connection with a hotel, guest hotel, bar, restaurant, club, or similar establishment;
(g) is carried on in connection with the transport of passengers by sea or air;
(h) is carried on in connection with postal and telecommunication services or broadcasting;
(i) is authorised by the Minister by order in conformity with international conventions.
(2) The Ministry may by Order suspend the prohibition of the employment of women during the night when in case of serious emergency the public interest so demands.
(3) In this section "night" means the period between 7 o'clock in the evening and 6 o'clock in the morning.
36. Maternity leave
(1) An employer shall allow a woman employee to leave her work upon production by her of a medical certificate stating that her confinement is likely to take place within 6 weeks, and shall not permit her to work during the 6 weeks following her confinement.
(2) While absent from work in pursuance of subsection (1) a woman employee shall be entitled to be paid not less than half of the remuneration she would have earned had she not been so absent.
(3) An employer shall allow a woman employee who is nursing a child half an hour twice a day during her working hours for this purpose; such interruptions of work shall be counted as working hours and shall be remunerated accordingly.
37. Restriction on dismissal of women employees
No employer shall give notice of dismissal to a woman employee who is absent in pursuance of section 36 or who remains absent as a result of illness certified by a medical practitioner to arise out of pregnancy or confinement and rendering her unfit for work:
Provided that such additional absence from work shall not exceed 3 weeks.
38. Prohibition of employment of persons under 12
No person under the age of 12 years shall be employed in any capacity, except on light work suitable to his capacity in an agricultural undertaking owned and managed by the family of which he is a member.
39. Employment of persons under 14
A person under the age of 14 years shall not be employed except on light work of an agricultural or domestic character in which members of the employer's family are employed with him, or on agricultural light work carried on collectively by the local community.
40. Employment of persons under 15
A person under the age of 15 years shall not be employed on work –
(a) in any industrial undertaking except in employment approved by the Commissioner;
(b) on any ship.
41. Employment of persons under 18
(1) A person under the age of 18 years shall not be employed during the night in any industrial undertaking, except that, if such person is over the age of 16 years, he may be so employed subject to the written consent of a labour officer.
(2) In subsection (1) "night" means a period of at least 7 consecutive hours falling between 10 o'clock in the evening and 6 o'clock in the morning.
42. Employment of persons under 18 on ships
A person under the age of 18 years shall not be employed on any kind of work on a ship unless certified by a medical practitioner to be fit for such work:
Provided that in urgent cases a labour officer may permit the engagement of a person under the age of 18 years without prior medical examination, and in such case the employer shall at his own expense have such a person medically examined at the first place of call at which there is a medical practitioner, and should such practitioner not attest such person as fit for the work, the employer shall at his own expense return such person as a passenger to the port or place where he was engaged, or to his home, whichever is the nearer.
43. Register of young persons
Every employer in an industrial undertaking and every master of a ship shall keep a register of all persons under the age of 18 years employed in such undertaking or on such ship, and shall enter therein the names of such persons, the dates of their birth and the dates when their employment begins and ceases; such register shall be open to inspection by a labour officer.
44. Presumption
In any proceedings in respect of an offence under sections 38 to 43 inclusive the Court may determine the age of the person.
PART 9 – SAFETY PRECAUTIONS AND MEDICAL FACILITIES
45. Employers to provide safe working conditions
(1) Every employer shall take appropriate steps as soon as possible to remedy any working conditions which may be dangerous for the health or welfare of his employees.
(2) The Commissioner may issue a written notice to any employer recording any offences or dangerous conditions discovered and fixing the period within which they shall be eliminated.
46. Notification of accidents
Every employer shall as soon as possible inform a labour officer, giving all relevant details, of any accident at work or illness arising from work that has occurred in his undertaking.
47. First-aid and medical treatment
(1) Every employer shall at his own expense provide for his employees and members of their families living with them, medical aid in accordance with such scale as the Minister may prescribe as suitable in the circumstances of any undertaking:
Provided that the provision of medical aid for members of the employee's family shall only be required where they are resident on the employer's property with his consent.
(2) In the event of an injury to, or sickness of, an employee occurring on the premises of an undertaking the employer shall, if necessary, make such arrangements as may be practicable to move the injured or sick person to the nearest hospital, clinic or similar place.
(3) Every employer shall have permanently available on the premises of the undertaking such medicines, dressings and similar articles as are necessary for first-aid.
PART 10 – TERMINATION OF CONTRACT
48. Termination of contract
Subject to the provisions of this Part
a contract of employment shall terminate on the last day of the period agreed in the contract or on the completion of the piece of
work specified therein.
49. Notice of termination of contract
(1) A contract of employment for an unspecified period of time shall terminate on the expiry of notice given by either party to the other of his intention to terminate the contract.
(2) Notice may be verbal or written, and, subject to subsection (3), may be given at any time.
(3) The length of notice to be given under subsection (1) –
(a) where the employee has been in continuous employment with the same employer for not less than 3 years, shall be not less than 3 months;
(b) in every other case –
(i) where the employee is remunerated at intervals of not less than 14 days, shall be not less than 14 days before the end of the month in which the notice is given;
(ii) where the employee is remunerated at intervals of less than 14 days, shall be at least equal to the interval.
(4) Notice of termination need not be given if the employer pays the employee the full remuneration for the appropriate period of notice specified in subsection (3).
50. Misconduct of employee
(1) In the case of a serious misconduct by an employee it shall be lawful for the employer to dismiss the employee without notice and without compensation in lieu of notice.
(2) None of the following acts shall be deemed to constitute misconduct by an employee –
(a) trade union membership or participation in trade union activities outside working hours, or with the employer's consent, during the working hours;
(b) seeking office as, or acting in the capacity of, an employees' representative;
(c) the making in good faith of a complaint or taking part in any proceedings against an employer.
(3) Dismissal for serious misconduct may take place only in cases where the employer cannot in good faith be expected to take any other course.
(4) No employer shall dismiss an employee on the ground of serious misconduct unless he has given the employee an adequate opportunity to answer any charges made against him and any dismissal in contravention of this subsection shall be deemed to be an unjustified dismissal.
(5) An employer shall be deemed to have waived his right to dismiss an employee for serious misconduct if such action has not been taken within a reasonable time after he has become aware of the serious misconduct.
51. Employees may seek work during notice
During the period of notice an employee shall be entitled to a reasonable period of time off work without loss or reduction of remuneration in order to be able to seek other employment.
52. Certificate of employment
(1) An employee whose employment has been terminated shall be entitled to receive from the employer, on request, at the time of the termination, a certificate specifying the dates of his engagement and termination and the type of work on which he was employed.
(2) Nothing unfavourable to the employee shall be inserted in such a certificate.
53. Breach of contract by employer
(1) If an employer ill treats an employee or commits some other serious breach of the terms and conditions of the contract of employment, the employee may terminate the contract forthwith and shall be entitled to his full remuneration for the appropriate period of notice in accordance with section 49 without prejudice to any claim he may have for damages for breach of contract.
(2) An employee shall be deemed to have waived his right under subsection (1) if he does not claim it within a reasonable time after he has become aware of his being entitled thereto.
PART 11 – SEVERANCE ALLOWANCE
54. Severance allowance
(1) Subject to section 55, where an employee has been in the continuous employment of an employer for a period of not less than 12 months commencing before, on or after the date of commencement of this Act, and –
the employer shall pay severance allowance to the employee under section 56 of this Act.
For the purpose of this subsection, "medical practitioner" means a medical practitioner registered as a health practitioner under the Health Practitioners Act, to practice medicine and/or surgery.
(2) For the purposes of subsection (1) –
(a) an employee who works for his employer on 4 or more days in any week shall be deemed, in respect of that week, to have been in continuous employment;
(b) no employee shall be held to have ceased to be in the continuous employment of an employer by reason of his participation in a strike which is not unlawful;
(c) where an employee ceases to be in the employment of one employer and enters the employment of another under section 55(4), his employment by the first and second employer shall be deemed to be continuous employment.
(3) For the purposes of section 308 of the Companies Act [Cap. 191] severance pay shall be deemed to be wages.
55. When severance allowance not due
(1) Severance allowance shall not be payable to an employee who has been recruited outside Vanuatu and is not ordinarily resident in Vanuatu.
(2) An employee shall not be entitled to severance allowance if he is dismissed for serious misconduct as provided in section 50.
(3) Where –
(a) an employer dies and the employee is employed or offered employment by the personal representative of the deceased forthwith after the death;
(b) employment by a partnership ceases on the dissolution of the partnership, and the employee is employed or offered employment by a member of the dissolved partnership or a new partnership forthwith after the dissolution;
(c) employment by a body corporate ceases on the dissolution of that body and the employee is employed or offered employment by some other corporate body in accordance with an enactment or a scheme of reconstruction forthwith after the dissolution; or
(d) employment ceases on the disposal of the goodwill, or of the whole or a substantial part of the business as a going concern, or of that part of the business in which the employee is employed and he is employed or offered employment by the person who acquires the goodwill or business or part of the business forthwith after the disposal,
on terms and conditions which are not less favourable than those of the former agreement, the employee shall not be entitled to severance allowance.
(4) Where an employee to whom an offer is made in any of the circumstances specified in subsection (3) accepts the offer, he shall be deemed to have entered the employment of the person by whom the offer is made forthwith upon the cessation of his employment with the first employer.
(5) Where an employee is deemed to be in continuous employment in accordance with section 54(2) and that continuous employment is terminated in circumstances in which severance allowance is payable, the employer in whose service the employee was employed immediately before the termination shall be deemed to be the employer during the whole of the period and shall be liable to pay severance allowance accordingly.
(6) An employer who is liable to pay severance allowance under subsection (5) shall –
(a) be entitled to deduct any period and to make any deduction which any previous employer would have been entitled to deduct or to make had the previous employer become liable to pay severance allowance; and
(b) be exempt from any liability to pay the allowance in respect of any period for which any previous employer was exempt from such liability.
56. Amount of severance allowance
(1) Subject to the provisions of this Part, the amount of severance allowance payable to an employee shall be calculated in accordance with subsection (2).
(2) Subject to subsection (4) the amount of severance allowance payable to an employee shall be –
(a) for every period of 12 months –
(i) half a month's remuneration, where the employee is remunerated at intervals of not less than 1 month;
(ii) 15 days' remuneration, where the employee is remunerated at intervals of less than 1 month;
(b) for every period less than 12 months, a sum equal to one-twelfth of the appropriate sum calculated under paragraph (a) multiplied by the number of months during which the employee was in continuous employment.
(3) Where remuneration is fixed at a rate calculated on work done or includes any sum paid by way of commission in return for services, the remuneration shall, for the purposes of this section, be computed in the manner best calculated to give the rate at which the employee was being remunerated over a period not exceeding 12 months prior to the termination of his employment.
(4) The court shall, where it finds that the termination of the employment of an employee was unjustified, order that he be paid a sum up to 6 times the amount of severance allowance specified in subsection (2).
(5) Any severance allowance payable under this Act shall be paid on the termination of the employment.
(6) The court may, where it thinks fit and whether or not a claim to that effect has been made, order an employer to pay interest, at a rate not exceeding 12 per cent per annum from the date of the termination of the employment to the date of payment.
(7) For the purposes of this section the remuneration which shall be taken into account in calculating the severance allowance shall be the remuneration payable to the employee at the time of the termination of his employment.
57. Deductions from severance allowances
(1) An employer may deduct from any severance allowance payable –
(a) in the case of an employee who is retired on or after attaining the age of 55 years:
(i) half the amount of any gratuity due at the age of 55 years from any pension fund;
(ii) any gratuity granted at the age of 55 years by the employer;
(iii) 5 times the amount of any annual pension granted at the age of 55 years from any pension fund mentioned in paragraph (a)(i) above;
(iv) 10 times the amount of any annual pension granted at the age of 55 years by the employer;
(b) in any other case –
(i) any gratuity granted by the employer;
(ii) any contribution made to any pension fund mentioned in paragraph (a)(i) above by the employer.
(2) For the purpose of this section "pension" fund means any provident or pension fund or seminal scheme (other than the Vanuatu National Provident Fund established by and under the Vanuatu National Provident Fund Act [Cap. 189], as amended from time to time) which fund is specifically approved by the Commissioner.
PART 12 – REPATRIATION OF EMPLOYEES
58. Employee's right to repatriation
(1) Subject to section 63 every employee whose ordinary place of residence is more than 50 kilometres away from his place of employment and who has been brought to the place of employment by the employer or his agent shall have the right to be repatriated at the expense of the employer to his place of origin or engagement, whichever is nearer to the place of employment, in the following cases –
(a) on the expiry of the term of contract;
(b) in the case of a termination of a contract when the employee has become entitled to a paid annual leave;
(c) in the case of a breach of contract or a serious offence committed by the employer;
(d) in the case of the termination of a contract due to the inability of the employee to complete the contract owing to sickness or accident.
(2) The right of an employee under subsection (1) shall lapse if not used by him within 6 months from the date at which he becomes entitled thereto.
59. Repatriation of employee’s family
(1) Where the family of an employee has been brought to the place of employment by the employer or his agent in the circumstances mentioned in section 58 the family shall have the right to be repatriated as provided in that section whenever the employee is repatriated or in the event of his death.
(2) The expression "family" in subsection (1) means the wife and the dependent minor children of an employee who reside with him.
60. Proportional payment of travel costs
When a contract is terminated for any cause other than those provided for in section 58 or by reason of a serious offence committed by the employee the employer shall bear travel costs proportionate to the length of the employee's service in respect of both the journey to and from his place of employment.
61. Means of transport
The means of transport shall be determined by the employee's position in the undertaking in accordance with the local usage:
Provided that the employer shall ensure that the employee and his family are transported in reasonable comfort and safety.
62. Subsistence during repatriation
(1) Subject to subsection (2) and to section 60 the expenses of repatriation shall include–
(a) the cost of travelling and reasonable subsistence expenses during the journey;
(b) reasonable subsistence expenses during the period, if any, between the date of the expiry of the contract and the date of repatriation.
(2) The employer shall not be liable for subsistence expenses in respect of any period during which the repatriation of an employee has been delayed –
(a) unreasonably by the employee's own choice;
(b) for reasons of force majeure, unless the employer has been able during that period to use the services of the employee at the rate of remuneration applicable under the expired contract.
63. Exemption from employer's duty to repatriate
Notwithstanding anything contained in the other sections of this Part an employer shall not be liable for the costs of repatriation or subsistence expenses if it is proved to the satisfaction of a labour officer –
(a) that the employee has signified, in writing or otherwise, that he does not wish to exercise the right to repatriation;
(b) that the employee has been settled, at his own request or with his consent, at or near the place of his employment;
(c) that his contract has been terminated owing to a serious breach thereof by the employee;
(d) when the contract has been terminated otherwise than by reason of the employee's inability to complete the contract owing to sickness or accident and the labour officer is satisfied that–
(i) in fixing the rate of the remuneration proper allowance has been made for the payment of the costs of repatriation by the employee;
(ii) that suitable arrangements have been made by means of a deferred pay system or otherwise to ensure that the employee has the funds necessary for the payment of such costs.
PART 13 – MISCELLANEOUS
64. Power of criminal court to order payments to employees
(1) Where, in the course of proceedings against a person being an employer in respect of any offence under this Act, it is proved to the satisfaction of the court, that a sum of money is owning by that person to his employee, by way of remuneration or otherwise, under, or arising out of, his contract of employment, the court, in addition to dealing with that person in any other way, may, on application or otherwise, make an order requiring him to pay that sum to the employee.
(2) An order made under subsection (1) shall be suspended –
(a) in any case until the expiration of the period prescribed by law for the giving of notice of appeal against a decision of the court;
(b) where notice of appeal is given, until the date of the determination or abandonment of appeal.
(3) Where an order under subsection (1) has been made against a person in respect of any offence taken into consideration in determining his sentence –
(a) the order shall cease to have effect if he successfully appeals against his conviction of the offence or, if more than 1, all the offences, of which he was convicted in the proceedings in which the order was made;
(b) he may appeal against the order as if it were a part of the sentence imposed in respect of the offence or, if more than 1, any of the offences, of which he was so convicted.
65. Employment agencies
(1) No person shall carry on the business of an employment agency except in accordance with the conditions specified in subsection (2).
(2) The conditions mentioned in subsection (1) are –
(a) that such person must apply in the prescribed form for an employment agency licence and be the holder of a valid current employment agency licence;
(b) an application must be accompanied by the prescribed fee;
(c) that such books and records shall be kept as shall be required by the Commissioner;
(d) that placement and recruitment of persons for employment outside Vanuatu shall not be carried on without an express permission in the licence mentioned in paragraph (a), and that any contract made or intended to be made in respect of such employment shall be submitted for the prior approval by the Commissioner.
(2A) A licence under subsection (2)(a) is to be issued by the Commissioner
(3) The expression "employment agency" in subsection (1) means an agency which acts as an intermediary for the purpose of procuring employment for a person or supplying an employee for an employer with a view to deriving either directly or indirectly a pecuniary or other advantage from the employer or employee:
Provided that the expression "employment agency" shall not include newspapers or other publications unless they are published wholly or mainly for the purpose of acting as intermediaries between employers and employees.
65A. Licence fee
(1) The holder of an employment agency licence must pay to the Commissioner the prescribed annual fee for the issue and renewal of the licence on or before the prescribed date.
(2) he holder fails to pay the annual fee by the due date the Commissioner may, by notice in writing to the holder, cancel the holder’s licence.
(3 his section and section 65 –
"prescribed" means prescribed by order of the Minister.
66. Crimping
If an employee who has wrongfully broken a contract takes service with a new employer, the new employer shall be liable jointly and severally with the employee for any prejudice caused to the former employer if he has induced the employee to leave his former employment or if he has engaged or continued to employ an employee whom he knew to be already bound by a contract.
67. Duty of employer to notify Commissioner of certain redundancies
(1) Any employer proposing to dismiss as redundant ten or more employees at 1 establishment within a period of 30 days or less shall notify the Commissioner in writing of his proposal at least 30 days before the first of those dismissals is proposed to take place.
(2) At any time after being notified under subsection (1) the Commissioner may by written notice, require the employer to give him such further information as may be specified in that notice.
(3) If in any case there are any special circumstances rendering it not reasonably practicable to comply with the requirements of this section, the employer shall take such steps towards compliance with such requirements as are reasonably practicable in those circumstances.
68. Works stores
(1) Subject to the written approval of a labour officer an employer may establish at or near a place of employment a store for the sale of any commodities to the employees, on the condition that –
(a) the employees concerned shall be free from any coercion to use such stores;
(b) the goods shall be sold mainly for the convenience of the employees and not for securing profit to the employer;
(c) the accounts of the stores shall be kept separate from the accounts of other undertakings of the employer and shall be readily available for inspection by a labour officer;
(d) the prices charged shall be fair and reasonable, and shall be displayed in a clear and legible manner.
(2) Where facilities are provided for the employees to purchase goods from a store mentioned in subsection (1) on credit, the prices charged to the employees must not exceed –
(a) where the store is situated within the municipal boundaries of Port Vila or Luganville, the lowest price at which such goods are sold to members of the public;
(b) where the store is situated elsewhere, the full cost price of the goods to the employer taking into account the cost of transport and recognised overheads.
(3) If an abuse in the manner in which a store is operated is found by a labour officer he may, after giving a suitable warning notice to the employer, order a provisional closure of the store for a period not exceeding 1 month.
(4) On a report by a labour officer of any such abuse the Commissioner may order the permanent closure of any such store.
69. Control of prices in certain stores
When an employer sells or supplies goods to the public and where in the absence of any other source of supply close to the place of employment his employees are obliged to provision themselves in his store the manner in which such sales or supplies are made shall be subject to inspection by a labour officer who shall have the power to fix maximum prices charged to the employees based on the prices which prevail on the open market:
Provided that if any such goods are subject to a statutory price control the labour officer shall exercise his powers under this section in consultation with the appropriate price control authority.
70. Minister's power to prescribe housing standards
(1) The Minister may by Order make rules specifying the standards, sanitary and otherwise, with which any housing provided by an employer for his employees must comply.
(2) Any such housing shall, at all reasonable times, be open to an inspection by the Commissioner or any labour officer, and section 4 shall apply in relation to such housing as it applies in relation to any premises referred to in that section.
71. Apprenticeship
The Minister may make regulations in respect of –
(a) the technical and other qualifications required of employers in order that they may employ and train apprentices;
(b) the conditions governing the entry of young persons into apprenticeship;
(c) the mutual rights and obligations of employer and apprentice.
72. Employers may be required to submit returns
The Commissioner may, by written notice, require any employer to submit to him, within a period specified in the notice, a return in a prescribed form showing –
(a) the date of opening of his undertaking;
(b) the business of the undertaking; and
(c) the numbers of workers employed in the various trade categories of the undertaking at such date as shall be specified in the notice.
73. Employer's register
Every employer who employs ten or more persons at any undertaking at any time, shall keep permanently up to date at each place of work, a register, to be known as the "Employer's Register", in such form as may be prescribed.
74. Statistical returns
Without prejudice to the generality of the provisions of section 3 the Commissioner may require any employer to furnish in writing returns and statistics, whether periodically or otherwise, as to the number of employees employed by him in any particular employment and the rates of remuneration and other conditions affecting the terms or conditions of employment.
75. Employers may make regulations
(1) An employer may make regulations to provide for matters concerning the technical organisation of the work of the undertaking, discipline and requirements concerning hygiene and safety necessary for the proper operation of the undertaking.
(2) Any regulations mentioned in subsection (1) shall, before coming into operation, be submitted for approval by a labour officer, and, if approved by him, shall be deemed to form a part of the contract of employment of all the employees to whom they relate.
(3) Any regulations mentioned in subsection (1) shall be displayed at some conspicuous place easily accessible to the employees.
76. Application of the Act to public service
(1) Except as provided in subsection (3) the provisions of this Act shall apply in relation to public servants and to the Government and any other public authority in Vanuatu subject to the modifications set out in subsection (2).
(2) The modifications mentioned in subsection (1) are as follows –
(a) the references in this Act to the Minister shall be taken as references to the Minister responsible for matters relating to the public service;
(b) the functions of the Labour Advisory Board shall be exercised by the Public Service Commission;
(c) except in section 65, the powers and duties of the Commissioner of Labour shall vest in the Director of Public Service Department;
(d) the powers and duties of a labour officer shall vest in the Director of Public Service Department or an officer appointed by him for that purpose;
(e) sections 67, 72, 73, and 74 shall not apply.
(3) Nothing contained in this Act shall apply in relation to members of the armed forces, police force or prison service.
77. Minister's power to exempt persons etc. from provisions of this act
The Minister may by Order exempt any person or class of persons or any public authority or class of public authorities or any contract of employment or class of such contracts from the operation of all or any of the provisions of this Act:
Provided that no exemption may be made from the provisions of section 7.
77A. Regulations
The Minister may make regulations so as to give effect to all or any of the purposes of this Act.
78. Offences
(1) Except as provided in subsection (2) any person who contravenes or fails to comply with any provisions of this Act or with any order or direction made by the Commissioner or a labour officer acting in the exercise of his functions under this Act shall be guilty of an offence.
(2) Any person who –
(a) contravenes the provisions of section 7 which relates to forced or compulsory labour or section 16(3) which relates to payment of remuneration in intoxicating liquor or noxious drugs;
(b) obstructs the Commissioner or a labour officer in the exercise of his functions under this Act;
(c) knowingly makes a statement false in any material particular when required to make a statement under this Act;
(d) makes, or knowingly allows to be made, any entry in a record required to be kept by an employer which he knows to be false or misleading in a material particular, shall be guilty of an offence.
Penalty: VT 100,000 or imprisonment for a term not exceeding 3 years or both.
79. Continuing offences
Every act or default under this Act constituting an offence shall constitute a new offence in every week during which it continues.
Table of Amendments (since the Revised Edition 1988)
54(1) Amended by Acts 33 of 1989, 8 of 1995
20 Amended by Act 8 of 1995
57 Substituted by Act 3 of 1997
65(2)(a) Substituted by Act 16 of 2001
65(2)(b) Substituted by Act 16 of 2001
65(2A) Inserted by Act 16 of 2001
65A Inserted by Act 16 of 2001
77A Inserted by Act 16 of 2001
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