Employment Ordinance In Hong Kong

The employment ordinance in Hong Kong is made to explain everything related to employment law in Hong Kong, such as all the terms and conditions that are very important to know. Furthermore, the employment ordinance in Hong Kong covers all types of employees, including part-time, full-time, and temporarily employed.

In the employment ordinance, every employee becomes eligible for getting the protections and rights provided to them by the Hong Kong government. Therefore, to become suitable for the employment ordinance in Hong Kong, the employees should have met the standards even at the minimum level.

Every employee who got an employment contract in Hong Kong becomes eligible for getting an employment ordinance for sure. It will be given to every worker without getting info about their working hours. So you will get essential protection under the employment ordinance in Hong Kong.

It offers the protection of wages payment period, restrictions or deductions, statutory holidays, etc. Every employee working in Hong Kong should have the employment ordinance; if not, you should have a continuous mutual contract between the company and employee.

Who is excluded from getting employment ordinance in Hong Kong?

As we have mentioned earlier, the Hong Kong employment ordinance is given to every worker. Still, some conditions make the employees to be excluded from this list which is given below:

• An employee who has a contract for working outside of the employment ordinance in Hong Kong.
• Suppose a person serving on a boarding ship is not registered in Hong Kong. Or people are working under merchant shipping ordinance.
• If the employer has the same residence as a family member, then that family member will not be eligible.
• Suppose any worker has been working under the apprenticeship ordinance. It means that person who has the continuous working contract of apprenticeship ordinance has been registered in Hong Kong.

What is an employment contract?     

It is an agreement between the company and the employee in which both the parties agree on the terms and conditions of the job. Every employment contract includes no violation of any aspect of the employment ordinance because, in another way, that employment contract will be considered illegal.

That’s why it is advised to the employer to ultimately inform each employee about all the conditions of employment under which they have to work. In this way, both know the terms and conditions that they have to follow.

Conditions of employment contract:

Generally, it includes:

• Wages further contain the rate of wages, allowances, and overtime pay that can be calculated, such as hour, day, week, etc.
• Wage period
• The payment period will be included if you have hired an employee based on the end-of-year payment.
• Length of notice needed for termination of contracts, or you can say termination payments.

Wage and records of employment:

After hiring any person in your company, the employer should make a complete record of wage and employment history that covers the employment period during one year. If you as an employer fails to keep the record under the employment ordinance regulation, you can be charged with a fine of 10,000 dollars.

The info about each employee should contain the following things:

1. Job title

2. Name and Id card number of the employer

3. Beginning date of employment

4. End of the year payment period

5. Sick leave, holiday leave which will be included in periods of leave

6. The termination date of employment, if any

7. Notice period

According to the statutory minimum wage ordinance, the employer hiring the new people should record the total number of hours worked in each wage period. It will be calculated at the end and written in the entitled amount of statutory minimum wage.

Duration of employment contract:

If you got a continuous contract for employment, you don’t have to renew the employment contract after every month under the employment ordinance. It depends upon the company that how much duration they give.

A detailed explanation of Wages:

Wages can be explained in many terms, including earnings, service charges, allowances, commissions, overtime pay, and remuneration. The overtime payment is written along with average monthly wages in the same period.

The wages exclude various things that are explained below:

• Employee’s contribution to any retirement scheme
• Value of accommodation, light, water, fuel, food, education because the employer provides it
• Bonus payment is written in gratuity payable thing that can be given at the employee’s discretion
• Traveling allowances for actual expenses incurred by the employment
• According to the nature of employment, the employee’s compensation ordinance can be used to compensate the expenses of that person

The complete information about wages is necessary because it involves many things such as long service payment, maternity leave pay, sickness allowance, holiday pay, annual leave pay, wages, etc., that will be affected employees.

Wage payment:

Paying wages is important under every circumstance by the employer because they start going in due once the wage period ends. Therefore, according to the employment ordinance, the payment should be given before the due date, or in any case, a delay shouldn’t exceed seven days from the end of the wage period.

If employers are paying the payment after the due date, they should pay the interest on all the outstanding payments stated in wages for sure.

Deductions from wages:

The employers cannot deduct the wages of the employees without any solid, reasonable excuse. However, there are a few cases in which the employer can deduct the wages that are given below:

1. If the employee is absent from work, the wage can be deducted proportionately.

2. If the employee damages any good or device due to negligence, the employer can deduct the wage but not more than 300 HK dollars.

3. If the employee gets the over-paid wages or any advance can be deducted.

4. In case of loan recovery

5. Under authorized enactment

The employer is limited to the order of employment ordinance of Hong Kong, which says that deduction shouldn’t increase half of the employee’s payment in one period of wage.

If the employer fails to pay the wages:

After one month of the due date, the employee can deem the termination contract without informing the employer because it comes under employment protection which is essential for the employee’s employment.

Moreover, even if the employee terminates the contract, the employer should pay the wages and statutory and contractual termination payments. In this case, it is advised to the employer to automatically terminate the employee’s contract if he hasn’t been able to pay the wages without causing any dispute, among each other.

How do you define the term Continuous contract of employment?

Although a huge number of advantages are offered to the employees working under the employment ordinance, those employees who have the continuous contract enjoy more benefits and protection.

It includes many benefits such as paid sickness allowance, long service payment, severance payment, paid annual leave, and rest days. Legally, the employee who worked with the same employer for four weeks with 18 working hours each week is eligible to get a continuous contract.

After it, the employee will get a continuous contract of employment in Hong Kong.

What are the employee’s rest days?

This benefit is regarded to those workers who have a continuous contract of employment. With this advantage, the employee can get one rest day a week. Therefore, it can be explained as the employee immediately can entitle to no less than one rest day as a continuous period of 24 hours during which they don’t have to work for the employers.

The rest days of the employee can be paid or unpaid according to the contract between the employee and employer. Rest days are further divided into two categories which can be appointed according to the nature of industrial undertakings and the agreement between both employer and employee.

Regular rest days:

On a regular basis, the rest day arrangement of the employee will be informed by the employer for one time at the start of the employment in Hong Kong.

Irregular rest days:

It is informed by the employer to the employee at the start of the month about the rest day arrangement in that month.

Voluntary substitution of rest days:

It can be made with the consent of the employee that the employer can replace some rest days with other days, but that day should be in the same month as the original rest day or can be taken within 30 days after it.

Voluntary working on rest days:

Suppose an employee who wants to work on rest days under industrial undertakings should be more than 18 in age. If so, the employer can take work from him on rest days with the agreed wages.

On the other hand, if any contract contains a term requiring working even on rest days to get a yearly bonus, it can be canceled by the employment ordinance in Hong Kong. The employee can challenge such a contract in the IR department of Hong Kong.

Compulsory working on rest days:

There are some situations; otherwise, the employer cannot force the employee to work on a rest day. Those conditions are given below:

• Event of an unforeseen emergency
• Event of breakdown of machinery or plant

If the employee needs to work on the rest day, they should inform the employer before 48 hours of working.

Employee’s statutory holidays:

In Hong Kong, the employee gets a total of 12 days of statutory holidays no matter how much time the employee has been working with any employer. The statutory holiday list includes the following holidays:

1. 1st day of the new year (1st Jan)

2. Chinese Lunar New year’s day, along with the 2nd and 3rd day

3. Labor Day (1st May)

4. Ching Ming Festival (1 Day)

5. Tuen Ng Festival

6. Chung Yeung festival

7. Chinese mid-autumn festival

8. Hong Kong special administrative region establishment day (1st July)

9. National day of the People’s republic of china (1st Oct)

10. Christmas Bay (25th Dec)

If the statutory holidays come on the rest day, the employer should appoint an alternative holiday for the employees on the next day for sure. The holiday pay should be given to the employees, whether they are titled to substitutive holiday, etc.

If all the employees agree to work on a holiday, then it is the duty of the employer to arrange a rest day/holiday for them in the coming days.

Holiday pay:

It is entitled to those employees who have the continuous period contract of employment ordinance. It is calculated as:

• Average daily wages that an employee got in the period of the last 12 months
• From the first day of employment to the proceeding day of the employment.

Voluntary working on statutory holidays:

Suppose the employee bears to do the work on a holiday. In that case, he should inform the employer before 48 hours of that holiday so that the employer can grant statutory holidays for that employee after that holiday.

Discussion about paid annual leave:

It is defined as the annual leave pay which is granted to the employee after 12 months under the contract, which is continuous after completing the working hours. The paid annual leave days increase with the completed length of the service period in a minimum manner. It is given below:

· First and second year: seven days per year

· From the third to the ninth year and onwards: annual payment increase one day from 8 days to 14 days per year.

In simple words, the employee can enjoy seven paid annual leave in the first two years of working. Then, after nine years of working, they can enjoy the paid annual leave of 14 days for sure.

Appointment of paid annual leave:

It should be consumed in 12 months after the mutual agreement between employee and employer. After that, it can proceed with either the employer or employee about it with a written notice that the employer should keep.

Employment protection allows the employee to grant annual leave in the following manner:

• Less than ten days of annual leave along with separated three days of leave
• Equal to more than ten days of annual leave and seven days of continuous leave at least.

The rest days and granted holidays by the government of Hong Kong are not added to the paid leave.

Annual leave pay:

It is calculated in the same way as the payment for the holiday. The daily rate for this purpose is regarded as the sum equal to the average daily wages earned by the employee in the last 12 months of a year.

Annual leave shutdown:

For granting annual leave to all employees, the employer should offer written notice to inform the affected employees at least one month in advance so that they can arrange something for them.

In this case, all the payments should be given to the eligible employee during the probation period, which is essential for employment protection.

Brief intro about sickness allowance and paid sickness day:

Paid sickness day is a form of employment protection because it is calculated in the same way as sickness allowance. Additionally, sickness allowance is another advantage given to the exceptional employee with the contract of continuous employment.

The employee can benefit from the sickness allowance under the following conditions:

• If sick leave is not taken for less than four continuous days
• If the sick leave is issued by an appropriate medical certificate.
• If the employee has sufficiently accumulated paid sickness allowance.

For female employees employed in any company facing the need for pregnancy-related medical treatment, leave days taken will be added to the sickness allowance. On the other hand, the following conditions will not be added to the sickness allowance:

• If a day of sickness comes at your rest day or granted holiday.
• Without reasonable excuse, if an employee refuses to participate in the medical treatment offered by the employer’s medical examination.
• Under the employee’s compensation ordinance, compensation is payable to the employees.

Features of paid sickness days:

Workers under a continuous employment contract can grant sickness days to accept payment. The details about it are below:

• During the first year of employment, you can get two sick days’ to leave with payment.
• After the first year of employment, you can get payment of four leaves for sickness.
• The sick days can be calculated during the complete working year of employment of the employee.

· It can be supported with a medical certificate.

The employer has the power to reject a medical certificate that doesn’t have the following things:

• A medical certificate that is not issued by a registered Chinese medicine practitioner or a registered medical practitioner.
  • A medical certificate doesn’t state the starting date and number of days. Moreover, it doesn’t add the condition of injury that makes the employee unfit for the job.

The employer has the power to inspect the leave of sickness of the employee in order to know whether it’s true or not. Therefore, the written record with the sign of employer and employee on the leave of sickness and return within seven days should be provided to the employer.

If the employee misconducts, then the employer can do the summary dismissal. The summary dismissal permits the employer to deduct the payment of leave of sickness.

System of maternity protection in Hong Kong:

The female employee who has now become a pregnant employee gets employment protection in Hong Kong. It offers maternity leave pay, protection from dismissing, and prohibition of heavy work during that period for a pregnant employee.

All these benefits are granted to the pregnant employee when she provides the medical notice ensuring her pregnancy to the employer.

Maternity leave:

The duration of this leave follows the given below things:

• The continuous-time period of not less than ten weeks
• Additional leave period can be taken, which is equal to the difference between the date of actual confinement and the expected date.
• Due to pregnancy, additional four weeks of leave can be provided to the pregnant employee because of illness.

Maternity leave pay:

Maternity leave payment is granted to the pregnant female working in any company whether she has a continuous employment contract. In addition, the payment will be given to that employee if she provides the prior notice to the employer about the expected date.

The payment will be provided for the maternity leave on the same day as the normal pay is given to all the employees. The payment of maternity leave is calculated along with the average wages of four to five months of employment.

Medical examination with scheduled maternity leave:

If the employee who is pregnant is absent from the work, and then it will be counted in the illness day when the situation is related to medical check-ups.

• Related to pregnancy
  • Post-confinement treatment
  • Miscarriage with medical certification

Employment protection for employees on scheduled maternity leave:

Dismissing any pregnant worker is prohibited, but in some cases, it is allowed, which are given below:

· If the probation period and prior notice and reasonable excuse when her employment is not more than 12 weeks.

· If the employee has conducted serious misbehavior

In other cases, it is completely prohibited to dismiss any pregnant worker who has submitted the following things:

• Supported medical certification of pregnancy
  • Notice of pregnancy submitted by the employee
  • Prohibition confirms from the day of getting notice of pregnancy to the date of returning to work

Long service payment and severance payment:

Before starting these terms in detail, you should know that an employee cannot be entitled to long service payments and severance payments. However, at a time, he will be eligible for a single payment system from these two options under lawful and reasonable order.

The severance payment is given to the employee when he has been working within a company for 24 months under a continuous employment contract in Hong Kong. It is paid to them when they are dismissed due to following reasons:

• lay off
• Expired existing fixed-term contract without a system of renewal aired because of redundancy under the same liability
• Redundancy

On the other hand, the long service payment is offered to an employee who has been working within a company under legislation governing conditions for more than five years. It has the following conditions:

• Not any summary dismissal
• Not any redundancy 
• Death of the employee
• Mental or physical illness that makes the person unfit for a job
• Aged 65 or above
• Expiry of an existing fixed-term contract without renewal policy under legislation governing conditions

Calculation of long service payment and severance payment:

Both of the payments can be calculated in the same way. The Hong Kong government has set a fixed amount of payment in these cases, which are maximum of 390,000 HK dollars. If the employee is the monthly-paid under the labor department should be paid at least 15,000 HK dollars.

An employee who worked daily-rated in industrial undertakings then paid only 15,000 HK dollars. However, if the year is incompleted in work, it will be counted on a pro-rata basis for the labor department.

Conditions for termination of the contract of employment:

Both employee and employer can terminate the contract of employment by providing the due notice to the other party, or it can be said as wages in lieu of notice instead. The providence of such notice is very important no matter whether you are working in the labor department or any other department.

The length of wages is essential because if the notice contains less length than required in the probation period, it will cause problems for the other party in the first month. Moreover, the length of that notice varies according to the condition of employment in industrial undertakings.

It has many terms and conditions that should be fulfilled to terminate any contract of employment from the opposite party are given below:

• No less than seven days’ notice is needed for the other party to terminate industrial undertakings and double pay.
  • Attendance allowances also enable the termination to stay if it starts from the employees themselves and if you got paternity leave pay.
  • Employment wages in lieu of notice should be calculated by taking the average of daily or monthly wages accordingly, along with the days in the length of notice.

Circumstances in which an employer dismisses an employee:

There are a few cases in which employers have to dismiss the employee from the job, which is completely unbearable.

Conditions:

1. Disobeys any reasonable order in a bad manner

2. Misconducts himself while working

3. Dishonesty or guilty of fraud

4. Habitually neglectful in his duties

Conclusion:

We have covered almost everything in this article related to the employment ordinance in the country of Hong Kong. Therefore, after reading it correctly, you will get answers to every question related to this field as it will aid you later in every regard.

The employment ordinance protects the employment of employees so that they can work freely in the country without any tension. Therefore, once you enter Hong Kong with a working visa, you will get all of the protection in every matter.

Best of luck!