It was a busy year for Hong Kong employment legislative developments. We take a look back as well as a peek at what awaits us in 2016.
Here are my top 6 for 2015:
(1) Statutory Paternity leave
- Can be claimed in respect of a child born on or after 27 February 2015
- Male employee entitled to three days’ paternity leave if he:-
- Is the child’s father
- Has been employed under a continuous contract immediately before the paternity leave
- Has informed his employer that he will take paternity leave at least three months before the expected delivery date OR at least five days prior to each intended date of leave (s15F of the Employment Ordinance).
- Covers a still birth (s 15J(2)) but not a miscarriage (s 15E(5)(b))
- Seems to not apply to adoption
- Employer can request a statement from the employee that employee is child’s father
- Having twins? Only one leave entitlement (s 15E(4))
- Leave is paid at 80% of the average daily wage if they have been working for no less than 40 weeks before leave (s 15H)
What Employers should be doing/ should have done? Ensure that employment contracts, internal policies and procedures as well as staff handbooks include provisions for paternity leave
(2) Contracts (Rights of Third Parties) Ordinance, Cap. 623
- Due to commence on 1 January 2016
- The Ordinance:
- will allow greater freedom for contracting parties to confer rights on a named third party;
- will vary the common law rule of privity of contract by enabling a third party to enforce a term of a contract where the contracting parties intend to create a legal obligation enforceable by a third party. The underlying principle is to avoid potential injustice to third parties and to give effect to the intention of contracting parties wishing to benefit third parties;
- although applicable to a wider range of contractual arrangements, its impact on employment agreements is such that it gives a third party the right to enforce (a) a term of the contract of employment against an employer (but importantly not an employee who is exempted) and (b) a term of an employment related contract against a party to that contract
- Parties may expressly exclude the application of the Ordinance and maintain the common law position (of privity) if they choose
What Employers should be doing/ should have done? Review standard contracts, handbooks and other employment documents and consider inserting blanket clauses to either maximize the enforceability of an agreement by a third party where this is preferred or expressly exclude the new Ordinance where it is not
(3) Anti-Discrimination in the Workplace
2015 has been a significant year in progressing anti-discrimination initiatives. The EOC conducted a comprehensive survey in relation to, among others, discrimination in the workplace. The findings revealed that:
(a) The most common type of discrimination was age discrimination (64%)
- Answer: it was suggested that given the trend of population ageing in Hong Kong that the EOC should consider setting its work priority on public education of promoting an age-inclusive environment and redressing age discrimination in the workplace
(b) Sexual harassment was fairly common in the workplace
- Answer: it was suggested that amendment to the Sex Discrimination Ordinance (SDO) would protect providers of goods, services and facilities against sexual harassment by customers. Also to provide anti-sexual harassment training for employers and employees in the service sector
(c) The majority of the victims (94%) did not take any action after the incident
Overall, the findings from the in-depth interviews revealed that the discrimination on the other grounds which were race, disability, new immigration status and sexual orientation in SMEs appeared to be rather serious
(4) Amendments to Labour Tribunal Ordinance
Changes to the Labour Tribunal Ordinance commenced at the end of 2014:
- Jurisdiction now extends to both claims for unliquidated (at large) and liquidated damages (contractually agreed or fixed by statute);
- To counter against abuse to procedure by delay or groundless applications for review of Tribunal awards;
- Under s 30 of the Ordinance, the Tribunal can now order that a party give security if considered just or expedient. Some triggers are :-
- If there is a real risk that payment of award or order will be obstructed or delayed where possible loss/ control of assets
- If a party’s conduct is an abuse of process
- If a party, without reasonable excuse, failed to comply with award, order or direction
- Failure to provide security may lead to Tribunal granting judgment, stay of proceedings, or dismissing a claim
(5) Minimum Wage
The Minimum Allowable Wage in Hong Kong (MAW) was last increased to HK$32.50 on 1 May 2015. Further increases are expected in 2016
(6) Competition Commission and Ordinance
- The wide-ranging Hong Kong Competition regime takes full effect on 14 December 2015
- From an employment perspective, practices such as wage-fixing, non-solicitation agreements between competitors and the exchange of sensitive HR related information would likely be caught by the legislation
What Employers should be doing/ should have done? Undertake an immediate review of their existing business practices, identify any potential risks, decide on a strategy for addressing those risks and undertake training to ensure all staff are aware of their obligations under the Ordinance. It is predicted that the Competition commission will police infractions diligently.
What to look out for in 2016?
- Anti-age discrimination legislation likely – a useful publication entitled “Practical Guidelines for Employers on eliminating age discrimination in employment” was issued in 2015
- Standard Working Hours – seems to be gathering momentum
- Privacy in the workplace is continuing to develop – e.g. opening mail addressed to an employee, monitoring personal emails, making and keeping CCTV recordings
NB. – please see my other posts within this blog for 2015 judicial developments in Hong Kong employment law.
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Employment Law Update 