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Consolidated Acts of Samoa 2011 |
SAMOA
LABOUR AND EMPLOYMENT ACT 1972
Arrangement of Provisions
PART 1
PRELIMINARY
PART II
ADMINISTRATION
PART III
WAGES PROTECTION
PART IV
CONTRACT OF SERVICE
PART V
HOLIDAYS, LEAVE, HOURS
OF WORK AND OVERTIME
PART VI
WORKING CONDITIONS,
SAFETY AND HEALTH
PART VII
CONCILIATION AND ARBITRATION
PART VIII
MISCELLANEOUS
Schedules
LABOUR AND EMPLOYMENT ACT 1972
1972 No. 12
AN ACT to consolidate, extend and amend the law relating to labour matters, to make better provisions as to conditions of employment, including wage protection, contracts of service, holidays and leave, hours of work and overtime, safety and industrial health, conciliation procedure and related matters.
[Assent and commencement date: 8 December 1972]
PART I
PRELIMINARY
1. Short title - This Act may be cited as the Labour and Employment Act 1972.
2. Interpretation - In this Act, unless inconsistent with the context:
“award” means an award made under this Act;
“Commissioner” means the Commissioner of Labour appointed under this Act and includes any person delegated by the Commissioner to exercise any of the powers exercisable by the Commissioner under this Act;
“contract of service” means an agreement, whether oral or in writing, expressed or implied, whereby 1 person agrees to employ another as a worker and that other agrees to serve his or her employer as a worker, and includes an apprenticeship contract;
“Court” means the Supreme Court of Samoa;
“day” means a period of 24 hours beginning at midnight;
“Department” means the Labour Department continued under this Act;
“employer” means a person employing a worker or workers, and includes the manager or agent of an employer;
“industrial dispute” means a dispute arising between 1 or more employers and workers in relation to industrial or labour matters;
“industrial grievance” means a matter related to his or her work or employment which is considered by an individual worker to be a legitimate ground of complaint;
“industrial or labour matter” means a matter affecting or relating to work done or to be done by employees or the privileges, rights and duties of employers or employees;
“industry” means:
(a) a business, trade, manufacture, undertaking, or calling of employers; or
(b) a calling, service, employment, handicraft, or occupation of workers:
“Minister” means the Minister responsible for labour;
“overtime” means the number of hours worked in excess of the limits specified in section 28;
“person” includes a corporation, and a body of persons, whether incorporated or not;
“place of employment” means a place where work is carried out by a worker for or on behalf of an employer;
“public holiday” means a public holiday defined in or declared under the Public Holidays Act 2008 or any other law in force in that behalf;
“rate of pay” means the total amount of money including allowances to which a worker is entitled under his or her contract of service, either for working for a period of time, that is for 1 hour, 1 day of 8 hours, 1 week, 1 month or for such other periods as may be stated or implied in his or her contract of service, or for each completed piece of task work, but does not include:
(a) additional payments by way of overtime payments; or
(b) additional payments by way of bonus payments; or
(c) travelling, food, or house allowance;
“wages”, unless otherwise specified, means all remuneration including allowances payable to a worker in respect of work done under his or her contract of service, but does not include:
(a) the value of a house accommodation, supply of light, water, medical attendance, or other amenity; or
(b) a contribution paid by the employer on his or her own account to a pension fund or provident fund; or
(c) a travelling allowance or the value of a travelling concession; or
(d) a sum paid to the worker to defray special expenses entailed on him by the nature of his employment; or
(e) a gratuity payable on discharge or retirement;
“week” means a continuous period of 7 days;
“worker” means a person who has entered into or works under a contract with an employer, whether the contract be for manual labour, clerical work or otherwise and whether it be a contract of service or apprenticeship or a contract personally to execute work but does not include any managerial personnel.
3. Application of Act, and existing legislation - (1) This Act does not apply to "service of Samoa", as that expression is defined in Article 111 of the Constitution, or to service
rendered to a matai under the aiga system, or to any service or class of service which may be excepted therefrom by order of the
Minister published in the Samoa Gazette and the Savali.
(2) This Act applies only where such provisions are not repugnant to or conflicting with the provisions of the Shops Ordinance 1961
or any other enactment or other written law for the time being in force.
(3) Nothing in this Act is to be construed as relieving a person who enters into a contract of service either as employer or worker
from a duty or liability imposed upon him or her by the provisions of the Shops Ordinance 1961 or any other enactment or other written
law for the time being in force.
PART II
ADMINISTRATION
4. Minister of Labour- There shall be a Minister of Labour for Samoa whose functions are to control and direct the policy of the Department, who may exercise such powers as are reasonably necessary and for the effective performance of the functions of the Department.
5. Labour Department - There is continued the Department of the Government of Samoa known as the Labour Department, which, under the control of the Minister, is charged with the administration and any regulations to be made thereunder, together with such other functions as may be lawfully conferred on it.
6. Functions of Department - The general functions of the Department are to advise workers and employers on all industrial matters, to take such measures as may be appropriate under the Act to ensure safe and healthy working conditions, to encourage good relationship between employers and workers, and to ensure the proper fulfillment by employers, workers, and other persons of obligations placed upon them by awards and industrial agreements and by the Acts and regulations administered by the Department.
7. Duties of Department - The general duties of the Department are:
(a) to provide the services of an employment exchange for the purpose of indicating to workers seeking employment where there may be suitable employment opportunities; assisting employers to obtain manpower; and advising persons who require occupational readjustment or training with a view to enabling them to continue or resume employment;
(b) to visit all places of work for the purpose of inspecting installations, motors, machinery, plants, boilers, and any other equipment working under pressure by the use of steam, electricity, or liquid fuels; to examine for purposes of industrial health and safety all dangerous materials, liquids, and machinery and to advise alterations or indicate such measures as may be necessary to secure industrial health and safety; to release certificates for approved pressure equipment, and to do all such things as may be conducive to improve industrial health and safety as provided by this Act or the regulations issuing therefrom;
(c) to make inspections of conditions of work and to take any other necessary action for the purpose of ensuring that there is fulfillment of the obligations placed upon an employer, worker, or other person under an award or industrial agreement, or under any of the Acts and regulations administered by the Department;
(d) to maintain such registers of shops, offices, factories, and places of work generally as may be deemed necessary for the fulfillment of the Department's functions;
(e) to collect and publish information relating to employment and unemployment, and wages, and such other matters relevant to the functions of the Department as the Minister may require;
(f) to make surveys and forecasts of the classes of employment required or available or likely to be required or available, and to do all things deemed necessary or expedient for the purpose of placing suitable and qualified persons in such employment on a voluntary basis; and
(g) generally to do all things deemed necessary or expedient for the purpose of promoting and maintaining full employment, whether
by facilitating the better location or availability of employment in relation to the labour available or otherwise howsoever.
8. Commissioner of Labour and other officers - (1) There shall be appointed an officer of the Public Service to be called the Commissioner of Labour who is to be the administrative
head of the Department.
(2) The Public Service Commission of Samoa may appoint such other officers and employees of the Department whether as Inspectors or
otherwise as may be necessary.
(3) The person holding office at the commencement of this Act as Commissioner of Labour is deemed to have been appointed to that office
under this Act.
(4) All other persons who at the commencement of this Act are officers or employees of the Department and have been so appointed by
the Public Service Commission of Samoa are deemed to have been so appointed under this Act.
(5) All officers and other employees of the Department shall act under the direction of the Commissioner in the exercise and performance
of the powers, duties, and functions conferred or imposed upon them by an enactment of which the Department or the Commissioner is
charged with the administration by this Act or any other enactment.
9. Delegation of powers by Minister - (1) The Minister may ,by writing under the Minister’s hand, either generally or particularly, delegate to the Commissioner all
or any of the powers which are conferred on him or her as Minister of Labour by this Act or any other enactment.
(2) Subject to a general or special direction given or conditions attached by the Minister, the Commissioner may exercise any powers
delegated to him or her as aforesaid in the same manner and with the same effect as if they had been conferred directly by this section
and not by delegation.
10. Powers of Commissioner -(1)The Commissioner, or an officer authorised in writing by the Commissioner, in the exercise of the Commissioner’s duties under this Act may:
(a) enter and inspect at all reasonable times a place of employment and carry out an examination, test, or inquiry which the Commissioner may consider necessary in order to satisfy himself that the provisions are being strictly observed;
(b) require the production of wages sheets, books, registers, or other documents connected with the employment, and copy such documents or make extracts from them;
(c) interview an employer or a person employed in the undertaking, either alone or otherwise asmay think fit, and require such person to give him or her any information in his or her possession relating to the employment of persons in the undertaking;
(d) enforce the displaying of any notices which may be required under the provisions or the regulations;
(e) take or remove samples of materials or substances used or handled at a place of employment, for purposes of analysis;
(f) generally take such steps as the Commissioner shall consider necessary to remedy defects observed in any premises, plant, machinery, equipment, or system of work which the Commissioner considers constitute a danger to the industrial safety or health of a worker, and for such purpose, by notice under his or her hand, to prohibit the use of any premises, plant, machinery, or equipment which constitute an imminent safety hazard to such workers and;
(g) to inquire into and endeavour to resolve any complaints or agrievance between a worker and his or her employer arising out of
a term of the contract of service or out of the provisions of this Act.
(2) Except for the purposes of this Act and the exercise of his or her functions under this Act, neither the Commissioner nor any
other officer of the Department shall disclose to a person any information which the Commissioner acquires in the exercise of those
functions.
11. Delegation of powers by Commissioner - (1) The Commissioner may by writing under the Commissioner’s hand, either generally or particularly delegate to such officer
or officers or employees of the Ministry as the Commissioner thinks fit all or any of the powers exercisable under this Act or any
other enactment:
PROVIDED THAT the Commissioner shall not delegate a power delegated to him by the Minister without the consent of the Minister, or a power delegated
to him or her by the Public Service Commission of Samoa without the consent of the Commission.
(2) Subject to a general or special directions given or conditions attached by the Commissioner, the officer or employee to whom any
powers are delegated under this section may exercise those powers in the same manner and with the same effect as if they had been
conferred directly by this section and not by delegation.
PART III
WAGES PROTECTION
12. Wage periods - An employer shall fix periods, which for the purposes of this Act are to be called "wage periods", in respect of which wages are payable:
PROVIDED THAT no wage period is to exceed1 month.
13. Time and place of payment of wages - (1)Wages earned by a worker under a contract of service are to be paid to the worker before the expiration of the 7th day after the
last day of the wage period in respect of which the wages are payable.
(2) All wages properly due to a worker on completion or termination of his or her contract of service or dismissal are to be paid
to the worker forthwith and in no case later than 7 days after the date of such completion or termination.
(3) Unless otherwise expressly consented to by him or her, all wages payable to a worker are to be paid to the worker on a working
day at his or her place of employment.
14. Mode of payment of wages - (1) Except as hereinafter provided, the entire amount of wages payable to a worker is to be paid to the worker in Samoa currency when
due.
(2) A worker is entitled to recover by action in Court an amount paid otherwise than in money.
(3) Despite anything in subsection (1), at the written request or consent of a worker, the wages payable to him or her or a part thereof
may be paid by money order, by cheque, or by lodgement at a bank to the credit of an account standing in the name of the worker.
15. Authorised deductions - (1) The following deductions only may be made from the wages of a worker:
(a) deductions for periods of absence from work, calculated in proportion to the period for which he or she was required to work by the terms of his or her employment;
(b) deductions for damage to or loss of goods expressly entrusted to a worker for custody, or for loss of money for which a worker is required to account, where such damage or loss is directly attributable to his or her neglect or default;
(c) deductions for the actual cost of meals supplied by the employer at the request of the worker;
(d) deductions for house accommodation supplied by the employer;
(e) deductions for such amenities and services supplied by the employer as the Commissioner may authorise;
(f) deductions for recovery of advances or for adjustment of overpayments of wages;
(g) deductions of income tax payable by the worker;
(h) deductions on contributions payable by an employer on behalf of a worker under and in accordance with a provident fund legislation;
(i) deductions for any other lawful purpose with the consent in writing or at the written request of the worker, and as previously notified to the Commissioner;
(j) deductions made under an attachment order made by a Court or authority having competent jurisdiction in that behalf; or
(k) deductions lawfully permitted under an enactment, regulations or rules for the time being in force.
(2) For the purposes of subsection (1)(e) the word "services" does not include the supply of tools and raw materials required for
and during the process of employment.
(3) No deduction under subsection (1)(b) shall exceed the amount of the damage or loss caused to the employer by the neglect or default
of the worker and except with permission of the Commissioner it shall not exceed one-quarter of 1 month's wages or $7 whichever is
the less, and shall not be made until the worker has been given an opportunity of showing cause against the deduction.
(4) No deduction under subsection (1)(d)is to be made from the wages of a worker unless the house accommodation, amenity, or service
has been accepted by him or her as a term of employment and in such an instance, the deduction shall not exceed an amount equivalent
to the value of the house accommodation, amenity, or service supplied and, in case of a deduction under the said paragraph (e), shall
be subject to such conditions as the Commissioner may impose.
(5) The total amount of all deductions other than deductions for absence from duty made by an employer in any one wage period shall
not exceed 35 percent of the wages payable to a worker in respect of such period.
16. Advances to worker - (1) No employer shall without the previous written permission of the Commissioner make to a worker an advance of wages not already
earned in excess of an amount equivalent to the wages earned by the worker during the preceding month, or, if he or she had not been
employed for that period, to the wages he or she is likely to earn during 1 month.
(2) No worker is to be held liable for the amount of an advance made to the worker by the employer in contravention of the provisions
of subsection (1).
(3) The recovery of an advance of money made to a worker shall begin from such a period as may have been agreed between worker and
employer.
(4) The recovery is to be made in respect of an advance for expenses of travelling to the employer's place of business.
(5) Advances may be recovered in instalments by deduction from wages spread over not more than 12 months and no instalments shall
exceed more than one-quarter of the wages due for the wage period in respect of which the deduction is made.
(6) No interest, discount, or other premium is chargeable on an advance of wages.
17. Remuneration other than wages - Nothing in this Act renders illegal a contract of service with a worker for giving him food, quarter, or other allowances or privileges
in addition to money wages as remuneration for his or her services:
PROVIDED THAT such food, quarters, or other lawful allowances or privileges in addition to money wages are adequate for the personal use and benefit
of the worker; and
PROVIDED FURTHER THAT the value attributed to such allowances is fair and reasonable.
18. Employer not to stipulate mode of spending wages - It is unlawful for an employer to impose a requirement on a worker as to the place or manner in which or the person with whom the worker shall expend any wages received by him or her.
19. Minimum wages - (1) The Head of State, acting by and with the advice of Cabinet, may by Order prescribe the minimum wages to be paid in an industry.
(2) For the purposes of subsection (1), the Minister may appoint an advisory committee on minimum wages, the duties of which are to
review comprehensively an industry and report to him on a matter pertaining to minimum wages, standards of living, and margins for
skill and to this purpose the committee shall also consult with the employers and worker concerned as it may consider it advisable.
PART IV
CONTRACT OF SERVICE
20. Illegal terms of a contract of service –A term of a contract of service which contravenes the provisions is deemed to be unlawful and shall have no effect:
PROVIDED THAT a contract of service valid and in force on the date of commencement of this Act, continues to be in force after such date and, subject
to an express provision therein contained, the provisions of this Act apply thereto.
21. Termination of contract - (1) A contract of service for a specific work or for a specific period of time shall, unless otherwise terminated in accordance with
the provisions of this Part, terminate when the work specified in such contract is completed or the period of time for which such
contract was made has expired, as the case may be.
(2) A contract of service for an unspecified period of time is a continuous contract until terminated by either party in accordance
with the provisions of this Part.
(3) Either party to a contract of service may at any time give the other party notice of his or her intention to terminate such contract.
(4) The length of such notice is the same for both employer and worker and is determined by a provision in that behalf in the contract
or in the absence of such provision is equal to the length of the wage period fixed under this Act:
PROVIDED THAT in the event of a worker having given not less than 5 years' continuous service with an employer, despite the length of a wage period
so fixed the length of notice is to be 2months.
(5) Either party to a contract of service may terminate such contract without notice, or, if notice has already been given in accordance
with subsection (3), without waiting for the expiry of that notice, by paying to the other party a sum equal to the amount of wages
which would have accrued to the worker had the contract been duly terminated on notice given in accordance with subsection (3).
(6) Either party to a contract of service may terminate such contract without notice in the event of a wilful breach by the other
and in such case no payment in lieu of notice is required, but without exoneration for payment of a sum due for work actually performed.
(7) An employer may without notice or payment in lieu of notice dismiss a worker employed by him or her on the grounds of misconduct:
PROVIDED THAT instead of dismissing the worker an employer may:
(a) instantly down-grade the worker; or
(b) instantly suspend the worker from work without pay for a period not exceeding 3 days.
22. Contract of service for wage periods longer than 1 month - No contract of service for a specified wage period of time longer than 1 month or for a specified piece of work the time for the completion
of which exceeds or may exceed 1 month is to be made without the prior approval in writing of the Commissioner, who may require such
terms as the Commissioner thinks fit to be included in such a contract of service:
PROVIDED THAT the Minister may, by notification in the Samoa Gazette and the Savali, except contracts of service with certain classes of workers
from the provisions of this section.
23. Written contract of service - (1)There shall be available at the Department a pro-forma contract according to the First Schedule exemplifying the manner in which
a written contract of service may be drafted.
(2) A written contract of service is to be either in the Samoan Language or the English language, at the option of the employee.
PART V
HOLIDAYS, LEAVE, HOURS OF
WORK AND OVERTIME
24. Work on Sunday -(1)No worker is to be compelled to work on a Sunday or a day observed according to the religious beliefs of such worker as a day of
obligatory abstinence from work, or other agreed day of rest unless he or she is engaged in work which by very reason of its nature
requires to be carried on continuously as a succession of shifts.
(2) A worker who works for and at the request of the worker’s employer on a Sunday or other agreed day of rest is to be paid
for such work not less than double his or her ordinary rate of pay, unless such worker and such employer shall have agreed that a
whole day within 3 days immediately before or after such Sunday or other agreed day of rest is to be substituted.
25. Public holidays -(1) A worker is entitled to a paid holiday at his or her ordinary rate of wages on a public holiday which falls during the time that
he or she is employed:
PROVIDED THAT by agreement between the employer and the worker any other day may be substituted for such public holiday.
(2) Despite subsection (1) a worker who at the request of his or her employer works on a public holiday is entitled to double the
ordinary rate of wages for such day's work.
26. Annual leave - (1) A worker is entitled after 12 months of continuous service with the same employer and after the coming into force of this Act,
to not less than 10 working days' paid leave for every 12 months continuous service and such leave are in addition to the holidays
to which such worker is entitled under the provisions of section 25.
(2) The employer shall pay to the worker his or her ordinary rate of wages for every day of such leave, including a part of remuneration
which is paid in kind and is not provided while the worker is on leave.
(3) A worker who fails to take such leave within a period of 1 year from the end of the year in respect of which the leave entitlement
did arise shall forfeit such leave entitlement.
(4) A worker who had completed a period of service of 6 months or over and whose employment is terminated, is entitled to leave with
pay proportionate to the length of service for which he or she has not received such leave or to compensation in lieu thereof, as
he or she may choose.
27. Sick leave - (1) A worker who has served an employer for a period of not less than 12 months after the coming into force of this Act is entitled
to paid sick leave being not less in the aggregate than 10 working days in each year, subject to production of a medical certificate
issued by a duly qualified medical practitioner certifying that the illness of the worker necessitates his or her absence from work.
(2) The medical certificate is to be handed or forwarded to the employer not later than 3 days after the inception of the illness.
(3) While he or she continues in the same employment a worker may carry forward unused sick leave entitlement from year to year.
(4)The employer shall pay to the worker his or her usual rate of pay for every day of such worker's absence on sick leave.
28. Hours of work - Subject to the provisions of this Act, no worker is required to work:
(a) for more than 40 hours (excluding meal times) in any one week;
(b) for more than 8 hours (excluding meal times) on any one day; or
(c) for more than 4 and one-quarter hours continuously without an interval of 1 hour for a meal:
PROVIDED THAT the period of 4 and one-quarter hours may be extended to not more than 5 hours in cases where the employer allows a rest interval
of not less than 10 minutes in every working period of not more than 3 hours:
PROVIDED THAT:
(i) a worker who is engaged in work which must be carried on continuously may be required to work for 8 consecutive hours inclusive of a period of not less than 45 minutes in the aggregate during which he or she shall have an opportunity to have a meal; and
(ii) where, by agreement under the contract of service between the worker and the employer, the number of hours of work on 1 or more days of the week is less than 8, the limit of 8 hours may be exceeded on the remaining days of the week, but so that no worker is required to work for more than 9 hours in 1 day or 40 hours in 1 week.
29. Overtime for extra work - (1) If on a day a worker works for and at the request of his or her employer more than 8 hours in 1 day or, in the case specified
in section 28(e), more than 9 hours, he or she is to be paid for such extra work at the rate of not less than one-and-a-half times
his or her rate of pay irrespective of the basis on which his or her rate of pay is fixed.
(2) If in any one week a worker works for and at the request of his employer for more than 40 hours in 1 week, he or she is to be
paid for such extra work at a rate of not less than one-and-a-half times his or her rate of pay irrespective of the basis on which
his or her rate of pay is fixed, provided always that he or she has not been paid for such extra work under subsection (1).
(3) For the purposes of calculating the payment due for extra work undertaken by a worker on a monthly rate of pay, such worker's
hourly rate of pay is to be assessed by calculating the amount of such worker's yearly remuneration without overtime, and by dividing
that amount by 8 times the number of ordinary working days during that year.
30. Shift work - (1) Despite section 28, a worker who is engaged under his or her contract of service in regular shift work may be required by his
or her employer to work more than 6 consecutive hours, more than 8 hours in any one day and more than 40 hours in any one week; but
the average number of hours worked over a period of 3 weeks shall not exceed 40 hours per week.
(2) No worker who is engaged under his or her contract of service in regular shift work shall under any circumstances work for more
than 12 hours in any one day.
(3) Section 29 does not apply to a worker who is engaged under his or her contract of service in regular shift work, but any such
worker who works for and at the request of his or her employer more than the average of 40 hours per week over any period of 3 weeks
is to be paid for such extra work in accordance with subsection (2) of that section.
31. Piece work - Nothing contained in this Part prevents an employer from agreeing with a worker that the wages of such worker is to be paid at an agreed rate in accordance with the amount of work done and not by the day.
PART VI
WORKING CONDITIONS, SAFETY,
AND HEALTH
32. Employment of children - (1) It is unlawful to employ a child under the age of 15 years of age in a place of employment except in safe and light work suited
to his or her capacity, and subject to such conditions as may be imposed by the Commissioner.
(2) No such child is to be employed on dangerous machinery or in an occupation or in any place under working conditions injurious
or likely to be injurious to the physical or moral health of such child.
(3) No such child is to be employed as a worker upon a vessel unless such vessel is under the personal charge of the parent or guardian
of the child.
33. Employment of women - (1) Except with the consent of the Commissioner, no woman is to be employed in a place of employment between the hours of 12 midnight
and 6 o'clock in the following morning, provided that this prohibition shall not extend to the nursing, medical, police postal, telephone,
telegraphic, and other essential Government services.
(2) No woman is to be employed in manual work unsuited to her physical capacity.
34. Safety provisions - (1) In a place of employment, efficient devices or appliances are to be provided and maintained by which the power can promptly be
cut off from an electrically powered transmission or other machinery in that place.
(2) All live electrical wiring, equipment, and apparatus are to be properly insulated so as to afford adequate protection from electric
shock.
(3) All dangerous parts of a machinery is to be securely fenced off or otherwise provided with efficient guards, and the safeguard
is not be removed whilst the machine to which it relates, is in use except for the purpose of making immediate repairs in which case
the safeguard is to be replaced as soon as the repairs are effected.
(4) In a place of employment where 20 or more workers are employed, the employer shall provide and maintain such first aid equipment
as directed by the Commissioner.
35. Procedure in case of accident - (1) In a case where an accident occurs in a place of employment which causes death or serious bodily injury to a person employed therein,
the employer shall forthwith, and not in any event later than 48 hours after the occurrence of the accident, give telephone or written
notice to the Commissioner specifying the nature of the accident, the name and residence of the person killed or injured, his or
her age, and the place (if any) to which he or she has been removed.
(2) In subsection (1), "serious bodily injury" means an injury which is likely to incapacitate the sufferer from work for at least
14 days.
(3) As soon as practicable after receiving notice of an accident to which this section applies the Commissioner shall make full inquiry
into the nature and cause of the accident and the nature and extent of the injuries.
36. Industrial health requirements - (1) A place of employment shall be kept in a clean and tidy state and free from a nuisance and from a smell or leakage from a drain
or sanitary convenience.
(2) Sufficient and suitable washing and sanitary facilities shall be provided separately for male and female workers.
(3) An adequate supply of fresh drinking water shall be maintained in every place of employment.
PART VII
CONCILIATION AND ARBITRATION
37. Conciliation Committee - (1)Upon proof of the existence of an industrial dispute, the Minister may if he or she thinks fit, and shall if the parties to the dispute
jointly request him to do so, appoint a conciliation committee consisting of 1 person nominated by the workers and 1 person nominated
by the employers, with a Chairperson to be appointed by the Minister.
(2) It is the duty of the Conciliation Committee to endeavour to bring about a voluntary settlement of the dispute, and to this end
the Committee shall carefully inquire into the dispute and all matters affecting the merits and the right settlement of the dispute.
(3) If a voluntary settlement is brought about by the Conciliation Committee, the terms of settlement are to be embodied in an agreement,
and are to be registered by the Commissioner.
(4) If no voluntary settlement is brought about by the Commissioner, the terms of settlement are to be embodied in an agreement, and
are to be registered by the Commissioner.
38. Commissioner may conciliate – (1) The Commissioner shall have power to conciliate in whatever manner he or she shall think fit or advisable, when requested to do
so by either party to an industrial dispute, or by either party in the case of an industrial grievance between an employer and 1
or more workers, or by both parties jointly, or in any case where he or she considers it expedient in the interest of good industrial
relations that he or she should endeavour by conciliation to bring about a settlement between the parties.
(2) If a voluntary settlement is brought about by the Commissioner, the terms of settlement are to be embodied in an agreement, and
are to be registered by the Commissioner.
39. Jurisdiction and powers of Supreme Court - (1) If conciliation procedure under section 37 has been unsuccessful in bringing about the settlement of an industrial dispute the
Minister may refer the industrial dispute to a Judge of the Supreme Court, sitting with 2 Assessors, 1 to be appointed by the employers
and 1 by the workers, who shall have jurisdiction to settle and determine the matters in issue.
(2) The Court may dismiss a matter before it which it thinks frivolous, trivial, or vexatious.
(3) The Court shall in all matters before it have full and exclusive jurisdiction to determine the same, and to make such order, not
inconsistent with this or any other Act, as in equity and good conscience it thinks fit.
(4) The procedure of the Court shall be such as the Court may determine. In particular, proceedings before the Court may be conducted
in an informal manner, and no advocate of a party thereto shall be a practising barrister or solicitor.
(5) If it appears to the Court that there are employers or workers in the same class of industry or in an industry related to the
industry in respect of which a dispute has been referred to the Court, it may permit such persons to appear and make representations
to the Court in connection with such dispute.
(6) If during the hearing of a dispute before the Court, either party or both parties jointly shall request that an interpretation
be placed upon a particular provision of this Act, the matter shall be referred to the Attorney-General whose opinion thereon shall
be final and binding on the parties.
(7) The decision of a majority of the Judge and Assessors, is the decision of the Court, is final and conclusive, and is not to be
challenged on matters of fact in any other Court.
(8) The decision of the Court in a case is to be sealed with the seal of the Supreme Court and a copy is to be registered by the Commissioner.
(9) The decision shall specify the following in clear terms:
(a) each party on whom the decision is binding;
(b) the industry or employment to which the decision applies;
(c) the locality to which the decision relates;
(d) the currency of the decision;
(e) any other relevant matter which ought to be included in the decision, not being inconsistent with this Act or with any other enactment.
(10) An employer and employee who commits a breach of a decision of the Supreme Court made under this section commits an offence.
PART VIII
MISCELLANEOUS
40. Civil proceedings - Nothing in this Act operates to prevent an employer or worker from enforcing their respective civil rights and remedies for a breach or non-performance of a contract of service by way of civil proceedings.
41. Offences and penalties - (1) An employer who enters into a contract of service contrary to any of the provisions of this Act commits an offence, and on conviction
is liable to a fine not exceeding 10 penalty units.
(2) A person who assaults or wilfully hinders or obstructs an officer of the Labour Department in the exercise of his lawful functions
under this Act commits an offence, and on conviction is liable to a fine not exceeding 5 penalty units or to imprisonment for a term
not exceeding 12 months, or both.
(3) A person who fails to comply with any of the other provisions of this Act is guilty of an offence and on conviction is liable
to a fine not exceeding 5 penalty units.
42. Regulations - (1) The Head of State, acting by and with the advice and consent of Cabinet, may make all such regulations as may be necessary or
expedient for giving full effect to the provisions of this Act and for the due administration.
(2) Without limiting the general power conferred by subsection (1) it is hereby declared that regulations may be made under this section
for all or any of the following purposes:
(a) prescribing the keeping by employers of records concerning persons employed in their undertakings, and the form and contents of such records;
(b) prescribing what is unhealthy, dangerous, or onerous work, and minimum ages of entry into employment in such work;
(c) providing for the manner of appointment of members to the Conciliation Committee and the Court;
(d) prescribing fees or for the waiving of fees in cases submitted to the Court, under the Act;
(e) generally for the protection, health, and safety of women and young persons;
(f) providing for the fixing of the maximum number of hours (exclusive of overtime) to be worked in a day or week by an employee in a specified class of occupation or employment;
(g) obtaining an information or particulars that may be required for the effective performance of the functions of the Department under this Act;
(h) prescribing fines not exceeding 1 penalty unit for offences against any regulations made under this Act;
(i) further defining the functions of the Department.
43. Repeal and Savings - (1) The enactments specified in the Second Schedule to this Act are repealed.
(2) The repeal of a provision by this Act does not affect a document made or anything whatsoever done under the provision so repealed
and every such document or thing, so far as it is subsisting or in force at the time of the repeal shall continue and have effect
and may be completed despite the repeal of the provision under which it was commenced.
SCHEDULES
FIRST SCHEDULE
PRO-FORMA WRITTEN CONTRACT OF SERVICE
Each contract is to be signed in triplicate as follows:
One copy to remain with the employer, 1 copy (the original) given to the employee and 1 copy to be forwarded to the Commissioner of
Labour.
Occupation ......................
Signed:.........................
Employer Employee
on................................... on...................................
Witnessed by.............of (address)............. on............... at ............. Copy No......
NOTE - All conditions of work shall be in accordance with the provisions of any written law in operation at the time of the signing of the
contract.
Headings which are not applicable may be omitted.
SECOND SCHEDULE
(Section 43)
ENACTMENTS REPEALED
1950 - No.10: The Contracts of Employment (Indigenous Workers) Ordinance.
1951 - No.4: The Recruiting of Workers (Prohibition) Ordinance.
1960 - No.16: The Labour Ordinance.
REVISION NOTES 2008-2011
This Act has been revised under section 5 of the Revision and Publication of Laws Act 2008.
The following general revisions have been made:
(a) Amendments have been made to conform to modern drafting styles and to use modern language as applied in the laws of Samoa.
(b) Insertion of the commencement date
(c) Other minor editing has been done in accordance with the lawful powers of the Attorney General.
(i) “Every” and “any” changed to “a/an” or “each” where appropriate
(ii) Present tense drafting style where appropriate:
- “shall be” changed to “is/are” or “is/are to be”
- “it shall be lawful” changed to “may”
- “hereby” and “from time to time” removed
(iii) Offence provisions: “shall be guilty” changed to “commits”
(iv) Removal/replacement of obsolete and archaic terms with plain language
- “notwithstanding” changed to “despite”
- “pursuant to” changed to “under”
(v) Numbers in words changed to figures
(vi) Removal of superfluous terms
- “against this Act”
- “of this Act”
- “the provisions of”
(vii) Adopting practice of placing “and” or “or” at the end of each paragraph where appropriate.
The following amendment has been made to specific sections of the Act to incorporate amendments made by an Act of Parliament passed since the publication of the Consolidated and Revised Statutes of Samoa 2007–
By the Public Holidays Act 2008
Section 2 - Under the definition of “public holiday”, reference to the “Shops Ordinance 1961” is removed and replaced with “Public Holidays 2008”.
This Act has been consolidated and revised in 2008, 2009, 2010 and 2011 by the Attorney General under the authority of the Revision and Publication of Laws Act 2008 and is the official version of this Act as at 31 December 2011. It is an offence to publish this Act without approval or to make any unauthorised change to an electronic version of this Act.
Aumua Ming Leung Wai
Attorney General of Samoa
Revised and consolidated in 2008 by the Legislative Drafting Division under the supervision of Teleiai Lalotoa Sinaalamaimaleula Mulitalo (Parliamentary Counsel)
Revised in 2009, 2010 and 2011 by the Legislative Drafting Division under the supervision of Papalii Malietau Malietoa (Parliamentary Counsel).
The Labour and Employment Act 1972 is administered in the Ministry of Commerce, Industry and Labour.
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