Henry Ting and Kacee Ting Wong say the problem requires solutions jointly fostered by the government, employers and employees
At a time of rising business concerns over Hong Kong’s high labor costs and mounting criticisms of labor imports and the “light-handed” approach taken by the authorities to enforce work-safety regulations, the commemoration of Labour Day offers us an opportunity to examine whether effective laws and policies have been introduced to protect the rights of employees. Balancing the interests of employers and employees is the central concern of employment laws and labor policies.
Because of the 1967 anti-government riots, the plight of Hong Kong workers was finally brought to the forefront of the minds of the British Hong Kong government, which enacted the Employment Ordinance (EO) in 1968, probably out of political considerations. The EO sets out a reasonable level of benefits and entitlements for employees, and a framework for how those statutory rights and entitlements are to be exercised. It covers a diverse range of employment-related matters, including wage protection, rest days, holidays with pay, sickness allowance, maternity protection, severance payments, long-service payment, employment protection, termination of employment, and protection against anti-union discrimination.
It will be a gross travesty of justice if any term of an employment contract is allowed to extinguish or reduce any right, benefit or protection conferred on employees by the EO. Thus, in Hang Fook Lau Seafood Restaurant vs Kwok Sik Yuen ([2000] HKLRD (Yrbk) 416), the requirement under a contract placed on an employee that he had to work on two out of four rest days a month was held to be void because an employee is entitled to four rest days a month. Employers must not nurture the illusion that an inconsistency between an ordinance and an employment contract will not render the latter void. As G Pitt has correctly pointed out, the statutory terms override inconsistent contractual provisions (G Pitt, Employment Law (London: Sweet & Maxwell, 2007).
In addition to the EO, the Employees’ Compensation Ordinance, the Minimum Wage Ordinance, the Occupational Safety and Health Ordinance, the Factories and Industrial Undertakings Ordinance (FIUO), the Sex Discrimination Ordinance and the Race Discrimination Ordinance address various aspects of employment relations, including employees’ rights in relation to work-related injuries and diseases, discrimination at workplace, minimum wage requirements, as well as employees’ health and safety. Employers must also enroll employees in, and contribute to, the Mandatory Provident Fund if the employee is employed for a continuous period of at least 60 days, unless he is exempted.
An effective law must have sharp teeth. To cite an example, a female employee is entitled to maternity leave of 14 continuous weeks under s12(2) of the EO. By virtue of s15A of the EO, any employer who fails to grant such leave is guilty of an offense and liable on conviction to a fine of Level 5. The offense is one of strict liability, i.e., one which may be committed without any requisite knowledge on the part of an employer that an offense has been committed. Because the provisions of the EO grant maternity leave as a total package, an employer is not allowed to require staff to take less maternity leave, even with the prior assent of employees.
In HKSAR vs Gammon Construction Ltd ([2020] HKCA 752), the Court of Appeal held that a defendant charged with breaching the duty to ensure, so far as is reasonably practicable, the health and safety of workers only could rely on the statutory defense under s18 of the FIUO, but not the more munificent common law defense of “honest and reasonable belief”. Additionally, the duty to provide a safety management system under s8(1) of the Factories and Industrial (Safety Management) Regulation is an absolute one. These two examples have clearly demonstrated that Hong Kong’s employment laws are credible. With an independent and respectable judiciary, the city’s legal system has a body of case law that interprets the employment-related ordinances in a fair manner.
The Court of Final Appeal (CFA) has been active in deciding cases of public interests in the employment law field. In a landmark case, the CFA has laid down important guidelines for distinguishing a contract of service from a contract for service in the context of casual employment: Poon Chau Nam vs Yim Siu Cheong [2007] 1 HKLRD 951). The Court of Appeal has also decided high-profile employment law claims. One example is the overtime claim brought by doctors employed by the Hospital Authority: Leung ka Lau & Ors vs Hospital Authority (2008) HKEC 111.
It is worth noting that Hong Kong also applies relevant international labor conventions (ILCs) as the local circumstances allow. As at the end of 2019, Hong Kong has applied 31 ILCs. This is comparable with neighboring places with a similar economic development as well as social and cultural background. Since local employment laws are quite similar to those of the United Kingdom, Hong Kong courts also rely heavily on English cases.
With regard to labor policies, the application for importing aviation workers from outside in the summer of 2023 has raised a storm of controversy in Hong Kong. Like the aviation sector, the construction and transport sectors also applied to import workers. The application has brought into sharp focus the exceptional procedures adopted by the authorities to bypass the Labour Advisory Board for vetting imported workers (South China Morning Post editorial, Aug 21, 2023). Given the serious shortage of aviation workers in the post-pandemic period, the special application procedure could be justified because exceptional circumstances require exceptional measures. It is also fair to say that the construction and transport sectors have found themselves waist-deep in water because of the labor shortage.
But the government should look beyond the expedient short-term solutions to labor shortage in these sectors. It can draw inspiration from long-term training packages provided for local workers in response to a serious labor shortage in 1991. It should provide more training programs for local workers financed by a levy on employers of imported workers. Industry players should continue monitoring the employment market for local workers to ensure that their opportunities are not neglected. One last point deserving mention is the need for employers and employees to negotiate a settlement to the disputes over the wages of imported workers.
Fresh in our memory is a dark day in last August when three construction workers died in industrial accidents. The death of two workers inside a locked underground site last year and the recent death of two sewer workers in a manhole in Sha Tin have served as a reminder that authorities must act tougher on safety violations in underground sites or manholes. The Labour Department has already issued no fewer than five work-fatality alerts in the first three months of this year. Sadly, it has taken yet another tragedy to highlight what needs to be done. The problem of workplace safety has added our voices to the pleas to promote a safety culture that has to be jointly fostered by the government, employers and employees.
Much has been said about employment laws and labor policies; we may still lack a deep appreciation of the great contributions made by the Hong Kong Federation of Trade Unions (HKFTU) in safeguarding employees’ rights in the city. Local workers owe the HKFTU more respect than has been shown to it. The HKFTU focuses on the rights and welfare of workers, supporting them in their negotiations with employers and helping them resolve labor disputes. It works to amend legislation, to protect employees’ rights, and prevent employers from exploiting loopholes in employment laws. It deserves great credit for advocating an abolition of the unfair Mandatory Provident Fund Offsetting Mechanism.
Henry Ting is chairman of the International Chinese Welfare Foundation, and vice-chairman of the Chinese Dream Think Tank.
Kacee Ting Wong is a barrister, part-time researcher of Shenzhen University Hong Kong and the Macao Basic Law Research Center, chairman of the Chinese Dream Think Tank, and a district councilor.
The views do not necessarily reflect those of China Daily.
