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Vanuatu Consolidated Legislation - 1988 |
Commencement: 14 April 1986
LAWS OF THE REPUBLIC OF VANUATU
REVISED EDITION 1988
CHAPTER 187
Act
36 of 1985ARRANGEMENT OF SECTIONS
SECTION
PART I
Preliminary Provisions
1. Interpretation and application
PART II
Work Permits
2. Work permits
3. Work permit tax
4. Change of employer or occupation
5. Renewal of extension of work permits
6. Offences
7. Consideration of applications
8. Decisions and appeals
PART III
Reserved Occupations and Vocational Training
9. Declaration reserved occupation
10. Vocational training
PART IV
General Provisions
11. Submission of applications
12. Appeals
13. Register of non-citizen workers
14. Regulations
15. Implementation and enforcement
16. Report of offences
17. Offences
18. Penalties
19. Act not to detract from other laws
SCHEDULE 1-Application for a work permit or its renewal, change of employer or employment status
SCHEDULE 2-Employer's register of non-citizen employees.
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LABOUR (WORK PERMITS)
To consolidate with amendments the Labour (Work Permits) Regulation No. 28 of 1977.
PART I
PRELIMINARY PROVISIONS
INTERPRETATION AND APPLICATION
1. (1) In this Act, unless the context otherwise requires -
"Commissioner of Labour" means the officer referred to as such in section 2 of the Employment Act Cap. 160;
"citizen" means a citizen of Vanuatu;
"employment" means the performance by an employee of a contract of service, whether written or not, and whether paid or unpaid and the words "employ", "employed", "employee" and "employer" shall be construed accordingly;
"Minister" means the Minister responsible for labour relations;
"occupation" means any commercial or industrial activity, intellectual or manual work or any specific work or task which a person may execute as part of his employment;
"worker" includes a director or manager of a company or firm.
(2) The provisions of this Act shall not apply to -
(a) any person appointed by the Government to a post within the public service;
(b) any person recruited under a written contract for employment in Government service;
(c) any person rendering voluntary service in Vanuatu under any technical aid scheme where such service has been authorised by the Government;
(d) any person entering Vanuatu at the request or invitation of the Government or as consultant to the Government;
(e) any other class or classes of persons as the Minister may by Order prescribe.
PART II
WORK PERMITS
WORK PERMITS
(2) Every employer who wishes to employ any non-citizen worker shall make application for a work permit to the Commissioner of Labour in the form and manner prescribed in Schedule 1.
(3) The Commissioner of Labour may issue work permits valid -
(a) where the employment is not the subject of a written contract, for 2 years;
(b) where the employment is or is to be the subject of a written contract, for 3 years or the duration of the contract, whichever period is the less.
(4) All work permits issued by the Commissioner of Labour shall contain –
(a) the full name and business address of the employer;
(b) the full name of and the occupation to be carried out by the employee;
(c) a photograph of the employee;
(d) details of the residence permit of the employee in cases where the employee is subject to immigration control;
(e) such further matters as may be prescribed by the Minister by Order.
WORK PERMIT TAX
(2) The Work Permit Tax shall be paid in full for one year upon the issue of a work permit and thereafter shall be due on the anniversary of the date of the issue in each ensuing year while the work permit remains in force.
(3) If the holder of a work permit fails to pay the Work Permit Tax in the second or any subsequent year while the work permit remains in force, within 30 days of the date on which it becomes due under subsection (2), the work permit shall be deemed to have lapsed on that date for all purposes of this Act.
(4) If a non-citizen worker in respect of whom Work Permit Tax was paid ceases to be in employment during any year in respect of which the Work Permit Tax has been paid, the Tax shall be refunded in proportion to the unexpired part of that year to the employer upon delivery up of the work permit to the Commissioner of Labour. In calculating the amount of a refund no account shall be taken of an incomplete month.
CHANGE OF EMPLOYER OR OCCUPATION
(a) wishes to change his occupation although remaining in the service of the said employer; or
(b) has previously been employed in any occupation by another employer.
RENEWAL OF EXTENSION OF WORK PERMITS
OFFENCES
(2) It shall be an offence for any employer to continue to employ any non-citizen worker in respect of whom a work permit has been issued for such employment beyond the date of expiry of such permit.
(3) It shall be an offence for any employer to employ any non-citizen worker in respect of whom a work permit has been issued in any occupation other than that specified in such work permit.
CONSIDERATION OF APPLICATIONS
(a) shall ascertain whether the employer has advertised the vacant position adequately and whether any suitably qualified citizen worker has applied for the position or has sought similar employment; and
(b) may have regard to such other matters as he considers relevant and in particular -
(i) the employment record of the employer;
(ii) the ability of the employer to provide reasonable training facilities for a citizen-worker counterpart to a work permit holder;
(iii) the professional or technical qualifications and experience of the prospective employee;
(iv) the protection of local and national interests; and
(v) whether the conditions of employment offered are in conformity with the laws of Vanuatu and with the terms of any collective agreement which may be in force in respect of the industry or occupation concerned, if any.
DECISIONS AND APPEALS
(2) In cases where an application received by the Commissioner of Labour does not provide all the information required or where any of the information provided is required to be verified, the calculation of the period prescribed in subsection (1) shall be suspended until the date of receiving such additional information or of verification of such information and the employer making the application shall be so informed by the Commissioner of Labour.
(3) If the employer making the application shall not receive the decision of the Commissioner of Labour within 30 days from the date of receipt of the application by him, the employer may appeal to the Minister for the determination of his application in accordance with the procedure prescribed in section 12.
RESERVED OCCUPATIONS AND VOCATIONAL TRAINING
DECLARATION RESERVED OCCUPATION
(2) Any Order prescribing the number of non-citizen workers who may be employed in a reserved occupation by any particular employer shall be prescribed as a percentage of the total number of citizen workers employed in such reserved occupation by that employer:
Provided that where the calculation of such percentage does not produce a whole number, the percentage shall be deemed to be the next higher whole number where the proportion of a whole number is 0.5 or over or the next lower whole number where the proportion of a whole number is less than 0.5.
(3) Any employer who wishes to employ a greater number of non-citizen workers than that prescribed in any reserved occupation shall make prior application to the Commissioner of Labour.
(4) The Commissioner of Labour may in his discretion grant or refuse an application made in accordance with subsection (3); when granted, the permission shall stipulate the additional numbers who may be so employed and the duration of such employment.
(5) Any employer who -
(a) employs any non-citizen worker in any reserved occupation otherwise than in accordance with the provisions of any order made under subsection (1); or
(b) employs a greater number of non-citizen workers in any reserved occupation than that prescribed by such Order otherwise than in accordance with the permission of the Commissioner of Labour granted under subsection (4); or
(c) employs any non-citizen worker in any manner contrary to the decision of the Minister on any appeal made under section 12,
shall be guilty of an offence against this Act.
VOCATIONAL TRAINING
Provided that the Commissioner of Labour may exempt an employer from the training requirements if he is satisfied that there is no citizen worker available as a counterpart to the work permit holder.
(2) Before issuing a work permit the Commissioner of Labour shall satisfy himself that the training provisions of the employer will be adequate and that the costs thereof will be borne by the employer.
PART IV
GENERAL PROVISIONS
SUBMISSION OF APPLICATIONS
(2) In the case of other employing establishments such applications may be lodged with the district labour officers who shall be responsible for the transmission of such applications to the Commissioner of Labour who shall issue a receipt therefor.
(3) The periods prescribed in subsection (1) of section 8 shall commence from the date of receipt of the application by the Commissioner of Labour.
APPEALS
REGISTER OF NON-CITIZEN WORKERS
REGULATIONS
(2) The Minister may provide penalties for the contravention of regulations made under this section which shall not exceed a fine of VT10,000.
IMPLEMENTATION AND ENFORCEMENT
(2) The Commissioner of Labour or any labour officer authorised by the Commissioner in that behalf, may without notice enter any business premises or place of employment other than any dwelling house (in which case the consent of the owner or occupier shall be required), and require the employer, manager or other person in charge to furnish any information and to produce any book or other document which in his opinion is or may be relevant to the implementation or enforcement of this Act and may, for the purpose of further investigations or for the purposes of evidence in an intended prosecution, retain or make copies of or extracts from such book or document.
REPORT OF OFFENCES
OFFENCES
(2) Any person who shall wilfully resist or obstruct the Commissioner of Labour or a labour officer, as the case may be, in the lawful performance of his duties under this Act shall be guilty of an offence against this Act.
PENALTIES
(2) Any person convicted of an offence against the provisions of this Act other than section 13 shall be liable in the case of a first offence to a fine not exceeding VT50,000 and in the case of a second or subsequent offence to a fine not exceeding VT100,000 or to imprisonment for a term not exceeding 6 months or to both such fine and imprisonment.
(3) In this section, the expression "second or subsequent offence" means an offence which has been committed within 5 years of a previous conviction for the same offence.
ACT NOT TO DETRACT FROM OTHER LAWS
SCHEDULE 1
The Labour (Work Permits) Act Cap. 187
APPLICATION FOR A WORK PERMIT OR ITS RENEWAL,
CHANGE OF EMPLOYER OR EMPLOYMENT STATUS
NOTES:
(1) the employment of a non-citizen worker, whether temporary or permanent;
(2) the renewal of a work permit for a non-citizen worker;
(3) a change of employer by a non-citizen worker;
(4) a proposed change in employment status of a non-citizen worker.
(1) the appropriate fee and tax;
(2) 2 passport-size photographs of the worker or prospective worker, duly certified to be a reasonable likeness;
(3) the original, or certified copies of the trade or professional qualifications or experience of the worker or prospective worker,
(4) a copy of the written contract of service under which the worker is employed or it is intended, he will be employed, if any;
(5) the current work permit where appropriate.
WARNING
(1) It is an offence to provide incorrect details in the form, knowing them to be false in any material respect.
(2) The lodging of this form for a work permit, in no way absolves the employee or prospective employee from compliance with any immigration regulations to which he may be subject.
(3) The employment of a non-citizen worker (unless exempt), without a valid work permit, constitutes an offence by both the employer and worker.
PART I
Details of Employer
(1) Full name of employer, business, organization, or undertaking:
....................................................................................................................................................................................................................................................................
(2) Address of registered office: .....................................................................................
................................................................. Tel: .......................................................
(3) Postal address (if different from (2)): ......................................................
....................................................................................................................................
(4) Nationality of employer: ..........................................................................................
(5) Type or description of business, organization, or undertaking:
..................................................................................................................................
(6) (a) Number of citizen workers currently employed: ..........................................
(b) Number of non-citizen workers currently employed: .................................
(7) The reasons for the employment of the non-citizen worker: ....................................................................................................................................................................................................................................................................................................................................................................................................
(8) The full wage/salary, to be paid to the non-citizen worker:
VT ...................... p.a., p.m., per week.
(9) The proposed occupation of the non-citizen worker: ...............................................
(10) Location of employment: .....................................................................................
(11) Full details of the training to be undertaken by the employer of a Ni-Vanuatu counterpart to the non-citizen worker, including:
(a) duration of training;
(b) qualifications and/or experience to be obtained;
(c) methodology and place of training;
..................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................
Details of non-citizen worker
(1) Full name of the worker: ......................................................................................... ................................................................................................................................
(2) (a) Sex: ................................... (b) Marital status: ..................I................
(3) Date and country of birth: ........................................................................................
.................................................................................................................................
(4) (a) Nationality: .................................... (b) Religion: ..............................
(5) Present address: ........................................................................................................
....................................................................................................
(6) Country of normal residence: ....................................................................................
(7) Details of dependants (if applicable) already resident with the worker or to accompany him:
(a) Wife (full name, date of birth, nationality):
.......................................................................................................................
(b) Children (full names, dates of birth, nationalities):
(i) ....................................................................................................................
(ii) ....................................................................................................................
(iii) .....................................................................................................................
(iv) .....................................................................................................................
(8) Present occupation/profession: .................................................................................
(9) Details and evidence of qualifications/experience obtained, including relevant dates and the name(s) of the issuing authority:
...........................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................
(10) Passport No.: .......................................... Valid until: ......................................
(11) Any other relevant information in support of the application:
......................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................
(1) A new (first issue) work permit of .................................... years duration in respect of Mr/Mrs[Miss ...............................................................................................................
(2) The renewal of the attached work permit No. .............................. for ...................... years duration in respect of Mr/Mrs/Miss ................................................................
(3) The alteration of the attached work permit No . .............................. for .................... years duration in respect of Mr/Mrs/Miss ..........................................................................................................
(4) The alteration of the attached work permit No. .............................. for .................... years duration in respect of Mr/Mrs/Miss .........................................................................................................
on change of employment status from (occupation) .................................................. to (occupation) ..................................................................................................................
(5) The issue of a temporary work permit for ............................................................. working days duration in respect of Mr/Mrs/Miss ..................................................... (Delete items not applicable).
2. I certify that:
(1) I have read and understand the contents of this application form.
(2) I will adhere to any conditions stipulated in the work permit when it is issued.
(3) To the best of my knowledge and belief, the information contained herein is true and accurate.
Dated this ............... day of .............................. 198 ...............
Signed: ............................................................
(Employer or prospective employer)
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SCHEDULE 2
EMPLOYER'S REGISTER OF NON-CITIZEN EMPLOYEES
Full name of employee;
Country of normal residence;
Nationality;
Trade, occupation or profession;
Date of commencement of employment;
Date of issue and serial number of work permit;
Period of validity of work permit;
Serial number of immigration entry and residence permit (where applicable);
Date of termination of employment.
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