Aquip Pty Ltd (receiver appointed) v Gastronuevo [1984] PGNC 52; [1987] PNGLR 491 (27 December 1984)

Papua New Guinea Law Reports - 1987

[1987] PNGLR 491 - Aquip Pty. Ltd. (receiver appointed) v Galo Gastronuevo

[1987] PNGLR 491

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

AQUIP PTY LTD (RECEIVER APPOINTED)

V

GALO GASTRONUEVO

Waigani

Barnett AJ

27 December 1984

MASTER AND SERVANT - Employment of non-citizens - Repatriation expenses - Statutory liability for - Attaches to employer responsible for bringing non-citizen to “place of employment” - Duty to pay on termination - Whether employee leaves country irrelevant - Employment of Non-Citizens Act 1978, ss 3, 6, 15.

Held:

Where a non-citizen with a work permit is employed under contract and that contract is terminated the statutory liability under s 15 of the Employment of Non-Citizens Act 1978 to pay repatriation expenses attaches to the employer who “brought the non-citizen to the place of employment” and is discharged by payment: whether the non-citizen/employee uses the payment for the purposes of repatriation or not is irrelevant.

Appeal

This was an appeal from a decision of a District Court magistrate refusing a claim for the return of repatriation expenses paid pursuant to the Employment of Non-Citizens Act 1979.

Counsel

S J Titus, for the appellant.

M Isana, for the respondent.

27 December 1984

BARNETT AJ: This is an appeal from a decision of the District Court at Rabaul in which that Court refused the appellant’s claim for the return of repatriation expenses paid to the respondent under the provision of the Employment of Non-Citizens Act 1978.

The respondent, a non-citizen, was employed under contract by the appellant company which thereby incurred the statutory liability under s 15 of the Act to pay the expenses of repatriation for the respondent and his family to return to the Philippines being the place of engagement as defined by s 3 and s 6 of the Act.

At the termination of employment in July 1983, the appellant duly paid the cost of airplane tickets which it then gave to the respondent. Instead of using the tickets to travel home, the respondent held them, and obtained employment with another employer. The appellant, feeling that the new employer should pay the return fare, claimed the cost of the tickets from the respondent in the District Court and it is from the District Court’s refusal of this claim that the appellant appeals to this Court.

Appearing for the appellant, Mr Titus based his claim on the principles of quasi-contract, claiming that the tickets were handed over pursuant to a mistake of fact; the mistaken fact being that the appellant paid out the value of the tickets believing the respondent intended to return to the Philippines. Mr Titus also claims that if the respondent did intend to return at the time of receiving the tickets but later changed his mind and took another job, the value of the tickets should be returned when that new intention was manifested. Presumably, this claim would be based on the “unjust benefit” principle which sometimes surfaces in the murky waters of quasi-contract cases.

I believe this appeal should first of all be considered by a careful study of the Employment of Non-Citizens Act 1978.

The Act is designed to regulate the employment of non-citizens to ensure that Papua New Guinea citizens are given access to employment opportunities in priority to non-citizens. Recognising that there are categories of employment for which an insufficient number of citizens have the required skills, a work permit system is established under the Act.

Section 15 deals with the rights and obligations of non-citizens and employers in respect of repatriation. The main purpose behind this section is to ensure that non-citizens brought here to work are repatriated at the end of their period of employment and that the Papua New Guinea Government is not left to foot the bill. The obligation to repatriate is placed firmly on the employer who originally recruits a worker and his family. Thus, when a second employer employs an accompanying dependant of a non-citizen who has been recruited from the place of engagement by another employer, it is that first employer, who was responsible for recruitment from overseas, who must pay the expense of repatriating the dependant. The second employer who gains the benefit of the dependant’s services is not liable for the expense of repatriating the dependent.

This section thus makes it clear to the original employer exactly what the cost of recruitment will be (it will include the cost of repatriation). It also makes clear to the employee at the time of engagement that one of the benefits of the contract as far as he is concerned is that the expense of repatriation for him and his family will be borne by the employer by way of statutory obligation. This obligation includes the responsibility to pay subsistence expenses of the worker and his defendants from termination of employment to the date of repatriation. The obligation exists even if the employment is terminated because the Secretary has cancelled a work permit for one of the reasons specified under s 9 for instance, because the Secretary is satisfied that the non-citizen “is not a fit and proper person to have a work permit”.

What is intended by the legislation to happen if the non-citizen delays his return after the termination of the employment, as has happened in this case?

Section 15(6)(a) relieves the employer of the obligation to pay subsistence expenses in such a case but that is all.

For such a non-citizen to legally gain further employment with another employer, he must first obtain another work permit or he will be committing an offence and be liable to deportation. If he does legally obtain such further employment, the Act does not clearly establish any obligation on the new employer to pay repatriation expenses to the place of his original engagement. The term “place of engagement” is defined by reference to s 15 which is expressed in terms appropriate for placing the obligation to repatriate upon the employer who “brought (the non-citizen) to the place of employment”. The possible liability of a subsequent employer who employs the non-citizen within Papua New Guinea, possibly on a short term casual basis, has not been specifically addressed in the Act.

Accordingly, I find that the appellant had a clear statutory liability to pay the expenses of repatriation and that it discharged that liability by handing him the airline tickets.

The action against the respondent in quasi-contract is not established. There was no mistake as to the nature or intent of the payment at the time the tickets were purchased and handed to the respondent. Nor is there any unjust benefit obtained by the respondent. At the time he signed the contract with the appellant, he relied on the fact that he would receive airline fares at its termination. He can use those tickets for himself and/or his defendants to return home immediately or during the course of or at the end of any further employment he may obtain. Whether or not a subsequent contract of employment includes repatriation expenses or whether or not it is in breach of the law is no concern of the appellant.

I order the appeal to be dismissed with costs to the respondent.

Appeal dismissed

Lawyer for the appellant: S J Titus.

Lawyer for the respondent: M Isana.

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[ii] Infra 21.