N1131

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

APP 162 OF 1992

MOSA TRANSPORT PTY LIMITED

v

KAPI DAMBE

KIMBE: DOHERTY J.
9 and 23 December 1992

The Employment Act Ch. 373 does not preclude parties negotiating the terms of a Contract of Employment provided they comply with the minimum provisions of the Employment Act Ch373, Industrial Relations Act Ch.374 and related legislation.

The respondent was employed by the appellant at a rate of K1.05 per hour. He subsequently claimed a rate of K2.00 per hour on the basis that he was qualified to earn that rate.

Held:

1. 	The order of the District Court was made against an employee of the appellant and there was no evidence that the employee had hired the respondent.

2. 	The respondent was employed on terms agreed by him knowing there was no position for a person of his qualification since the terms of employment were better then the minimum required by law there was a legal bending contract.

H Waninara for the Appellant
No appearance by the Respondent

DECISION

DOHERTY J: This matter has been set down for hearing during the call over of this circuit. Counsel for the Appellant informs me that he has served notice of today's hearing on the Respondent and although the Respondent had checked with the staff of the District Court and was told the matter would be heard he has not appeared today.

As Counsel came a long way and I am satisfied that the Respondent has been served the matter will proceed.

The appellant appeals against the Decision of the District Court at Kimbe awarding damages based on a complaint by the Respondent against his employer, Mosa Transport. The complaint does not state whether the Mosa Transport is a corporate body. Since the Respondent did not have the benefit of legal advice I will not pursue that point. However I do note that the complaint is in fact against Neris Waim the Manager of Mosa Transport where it should have, more properly, been against the corporate employer. Mosa Transport is the appellant.

Technically there appears to have been no service on Mosa Transport, which on the facts before me appears to be a Company.

The wording of the complaint claims that Mr Neris Waim is "indebted to the aforesaid complainant in the sum of K1,932.00, being money owned for services rendered especially hourly rate payable during official hours". (sic).

The Court work sheet show that Mr Neris Waim and Mosa Transport were originally entered as the defendants but the actual Court Order was made against Neris Waim. The wording of the Order is as follows:

"It is adjudged that Neris Waim shall pay Kapi Dambe the sum of K2,076 within two (2) weeks (by 13/08/92) and also paid to the said Kapi Dambe the sum of K35.00 the cost on his behalf." (Sic)

Hence, the Order is against Mr Neris Waim.

A Warrant of Execution was also issued and this again is levied against Mr Neris Waim.

The facts show that the appellant was employed by Mosa Transport as a Mechanic. It is quite clear from the evidence, and it has been conceded in the appeal, that he was a tradesman with prior qualification and references. However, it is also clear on the evidence that he was anxious to get any job and that the Company did not have a position available for a qualified tradesman of his calibre. He said in his letter of application (not dated) "I wanted to take up my job as a Mechanic. If you don't have a space to fit me in as a tradesman I do not mine I would like to work on as your accord" (Sic). The evidence shows that he did start work and a form giving particulars was filled in. This form was referred to in the evidence by both parties and in the Reasons for Decision but it was not in the Court Deposition and I have been given a copy by Counsel for the Appellant. The Learned Magistrate in his reasons for Decision refers to the blank agreement form which was to be filled in and handed back to Mr Waim. The forms records "rate K 1.05 P.H.". There is reference in the appellant's and the respondent's evidence that the respondent was paid K1.05 per hour whilst employed so I deduce from that evidence that this means K1.05 was the hourly rate of pay.

The undisputed evidence shows that the respondent was paid K1.05 per hour but subsequently claimed that he should have been paid K2.00 because K2.00 was the rate for a qualified tradesman.

The law relating to employment is provided in the Employment Act Ch 373. The provisions of the Employment Act provide for minimum wages (this is determined under the Industrial Relations Act Ch 174) and other minimum conditions of employment. If a contract of employment does not conform to the minimum conditions of employment provided by the legislation then the agreement is void to the extent that it is less favourable then the minimum set out in the Employment Act (s.11(4)).

A contract employment can be oral or it can be written. If it is oral then it is deemed to be a contract for the period of reference to which the wages are paid. (s.16 Employment Act).

On the evidence before the Learned Magistrate the appellant was paid each fortnight hence the contract expired each fortnight and was immediately deemed to be a new contract under a oral contract of service (s.17 Employment Act). An employer must set out a written record of the terms and conditions at the time he makes his oral contract (s.15(i)). If there is a dispute where an employer fails to produce such a written record then the statement of the employee to the terms and conditions are conclusive evidence of those terms and conditions unless the employer satisfied the Secretary for Labour differently (s.15(2)).

The evidence before me shows that the Appellant was employed from one fortnight to the other and there was a written record called "Notification of Employment" showing he was paid at an hourly rate of 1.05 per hour and that rate continued.

The Learned Magistrate found as a fact that the respondent complained about his rates of pay. That may be so but it is clear on the respondent's evidence and on evidence of Mr Waim that it was agreed that he be paid K1.05 hourly. The fact that a registered tradesman may get more does not affect the powers of parties to negotiate their own terms. The law requires that an employee must be paid the minimum and the respondent was paid above the rural minimum set out in the National Gazette. He may have been better qualified for the job he took but he took it knowing that there was no position available at his qualification and his rate. There is no obligation in law to employ a person at his full qualification if no such employment exists. The law does not preclude parties negotiating terms acceptable to them provided such terms are not in breach of the Employment Act, the Industrial Relations Act or analogous Legislation.

Reading the deposition I form the impression but there was some pressure on the appellant to find a job for the Respondent, he seems to have been persistent in his search for employment, and they gave him what work was available.

I cannot in the evidence find there was an agreement to pay the respondent K2.00 per hour, I cannot find any evidence that there was a legal obligation to pay the respondent K2.00 per hour when he had already freely entered into an agreement to accept K1.05. I cannot find in the evidence that the respondent was promoted.

I cannot find any evidence that the respondent entered into an agreement of employment with Mr Neris Waim. It is quite apparent to me from the evidence that the respondent knew that Mr Neris Waim was acting an employee of Mosa Transport and I consider am I entitled to uphold the appeal on that ground alone as there is no evidence to show that Mr Neris Waim was personally liable and the order is clearly personally against him.

I uphold the appeal on that ground plus the further ground but there was no agreement in law to pay the respondent K2.00 per hour and there was no statutory obligation on the appellant to pay the respondent K2.00 per hour. 

I uphold the appeal and quash the order and the order for levy on execution against Mr Waim.

Lawyer for the Appellant: Warner Shand and Lawyers