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Employee Rights in Hong Kong

Under common law, an employer owes a duty of care to his/her employees. The duty of care may not be delegated, even though the performance of the duty maybe. The employers’ duty extends to the provision of safe plant and equipment, a safe place of work, a safe system of work and competent fellow employees. 

EMPLOYEES' RIGHTS UNDER THE EMPLOYMENT ORDINANCE
 
The Employment Ordinance (Cap 57) (“EO”) covers all employees, whether temporary or part-time, with some exceptions.

Under the EO, employees’ benefits include:

  • 12 statutory holidays every year;
  • One rest day in every period of 7 days;
  • Holiday pay (if employed under a continuous contract for 3 months or more)
  • Sickness allowance at the rate of four-fifths of the normal wage (for not less than 4 consecutive sick days);
  • Maternity leave;
  • Paid maternity leave at the rate of four-fifths of the normal wage (for not less than 4 consecutive sick  days);
  • Annual leave of 7 to 14 days;
  • Entitlement to proper notice for termination of contract except in the first month of probation;
  • End of year payment, if provided in the employment contract; and
  • Severance payment/ long service payment (certain conditions apply).
 
  • Rest Day
An employee employed under a continuous contract is entitled to one rest day in every period of 7 days (Section 17 of the EO). Rest days shall be decided by an employer who may fix different rest days for different employees (Section 18 of the EO). An employer who compels an employee to work on a rest day is in breach of the law, except in the event of a breakdown of machinery or plant or any unforeseen emergency. if an employee is required to work in such exceptional circumstances, the employer is required to provide a substitute  rest day within 30 days of any rest day on which the employee was required to work.  48 hours’ prior notice must be given of the replacement rest day (Section 19 of the EO). An employee should grant rest days in addition to statutory holidays. 
 
  • Statutory Holidays
An employee is entitled to 12 statutory days holiday a year (Section 39 of the EO). After 3 months employment under a continuous contract an employee is entitled to paid statutory holidays (Section 40 of the EO).
 
An employer is prohibited from making any form of payment to an employee in lieu of a statutory holiday (Section 40A of the EO). If an employer requires an employee to work on statutory holidays, the employer must give at least 48 hours’ prior notice to the employee and within 60 days arrange an alternative holiday before or after the statutory holiday (Section 39(2) of the EO).
 
  • Sickness Allowance
Paid sick days can be accumulated up to a maximum of 120 days. Sick days are accumulated at the rate of two paid sick days for each completed month of employment under a continuous contract, during the first 12 months of employment, and four paid sickness days per month thereafter (Section 33 of the EO). Employers should pay their employees sickness allowance when an employee has accumulated the number of paid sick days that have been taken, providing that the sick leave taken is more  than 4 consecutive days and the sick leave is supported by an appropriate medical certificate.
 
The daily rate of sickness allowance is a sum equivalent to four-fifths of the average daily wages earned by the employee in the 12 months immediately before the first sick day. For employee employed for less than 12 months immediately before the first sick day, the calculation is based on the shorter period of employment.
 
No sickness allowance is payable for a days when the employee would not have worked (Section 35 of the EO).
 
  • Maternity Leave
Employees are eligible for 10 weeks’ maternity leave (Section 12 of the EO) when she has:
 
(1) worked under a continuous contract for not less than 40 weeks immediately before the commencement of maternity leave;
(2) given proper notice of pregnancy to her employer, e.g. by presenting a medical certificate confirming her pregnancy; and
(3) produced a medical certificate specifying the expected date of confinement if so required by her employer (Section 14 of the EO).
 
If the length of employment under a continuous contract is less than 40 weeks immediately before the commencement of maternity leave, the employee is eligible for ten weeks’ maternity leave without pay.
 
  • Annual Leave
An employee is entitled to 7 days’ annual leave with pay, after every period of 12 months employment under a continuous contract (Section 41AA of the EO). An employee’s entitlement to paid annual leave will increase progressively to a maximum of 14 days according to his/her length of service.
 
An employee is entitled to paid annual leave on a pro rata basis upon termination of an employment contract if he/she has been employed under a continuous contract for not less than 3 months, except in the case of summary dismissal for serious misconduct (Section 41D of the EO).
 
  • End of Year Payment
There is no legal requirement under the EO for an employer to make an end of year payment, which would include the employee’s bonus and double pay. The end of year payment should be agreed between the employer and employee. If such payment is included in the terms of employment, the employer is contractually bound to pay the employee (Section 11AA and 11B of the EO). An end of year payment does not include a gratuitous or discretionary payment by the employer.
 
In cases where an employee has worked for more than 3 months but less than 12 months, the employee is entitled to a pro-rata end of year payment unless he resigns or is dismissed for serious misconduct in that period. Any probation period, subject to a maximum of 3 months, is excluded from calculating the qualifying service for pro rata end of year payment (Section 11F of the EO).
 
  • Right to Join Trade Union
Under Section 21B(1) of the EO, every employee has the right to become a member of a trade union registered under the Trade Unions Ordinance and to take part in the activities of the trade union. Section 21B (2) prohibits an employer from terminating an employee’s contract of employment because he exercises his rights under Section 21B (1).


EMPLOYEES' RIGHTS UNDER THE MINIMUM WAGE ORDINANCE

A Statutory Minimum Wage (“SMW”) has been applied in Hong Kong since May 2011.
 
With effect from 1 May 2015, the SMW rate was increased to HK$32.5 an hour. The Minimum Wage Ordinance (Cap. 608) specifies that an employee’s wages when averaged over the total hours worked in any wage period, should be no less than the SMW rate (i.e. HK$32.5 an hour). 
 
Under the Minimum Wage Ordinance, employers must record the number of hours worked by their employees. This obligation is, however, waived for employees with a salary over HK$13,300 a month. Over this figure employers are not required to record the number of hours worked by the employee each month. 

November 2015

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