The recently passed Employment (Amendment) Bill 2019 will introduce changes to the Employment Ordinance (Cap 57) which are expected to come into force by the end of 2020. This article examines the main changes, including the extension of statutory maternity leave for permanent employees, changes to statutory maternity leave following a miscarriage and the relaxation of sickness allowance requirements for medical exams during pregnancy.
In June 2020 the Occupational Retirement Schemes (Amendment) Ordinance took effect. It enhances the existing powers under the Occupational Retirement Schemes Ordinance (ORSO) to ensure that ORSO schemes regulated under the ordinance are genuinely employment-based retirement schemes. It also looks to improve the governance of the schemes.
In June 2020 the Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020 came into effect. The enhanced protections commenced with immediate effect, save for those relating to breastfeeding, which are expected to come into force on 19 June 2021. As a result, the existing anti-discrimination ordinances have been or will be amended to extend protection against discrimination on the ground of breastfeeding and strengthen protection against unlawful discrimination and harassment.
In response to the COVID-19 pandemic, the government introduced an HK$80 billion Employment Support Scheme to provide a wage subsidy to eligible employers for six months in exchange for them refraining from making any redundancies during the subsidy period and using the subsidy to pay employees' wages. The government recently announced the introduction of a third round of the anti-epidemic fund. The HK$24 billion package will assist specific industries and people who are most affected by the pandemic.
As part of the response to the COVID-19 pandemic, employers have had to collect and disseminate information about their employees. This has given rise to concerns regarding data privacy. The privacy commissioner for personal data recently issued guidelines for employers on the collection, processing and use of personal data during the COVID-19 pandemic.
Under the Employees' Compensation Ordinance (ECO), employers are generally liable to pay compensation to employees who sustain an injury or die as a result of an accident arising out of and in the course of their employment, or suffer from an occupational disease specified in the Second Schedule of the ECO. The COVID-19 pandemic has created many challenges for employers and employees, including whether COVID-19 falls within the scope of protections afforded by employee compensation legislation.
To tackle the unemployment and loss of income caused by the COVID-19 pandemic, the government has introduced an HK$80 billion Employment Support Scheme (ESS) as part of the second round of anti-pandemic relief measures. The ESS aims to provide time-limited financial support in the form of wage subsidies to eligible employers to allow them to retain employees.
On 4 February 2020 Hong Kong reported its first fatality relating to Coronavirus Disease 2019 (COVID-19), which originated in Wuhan, China. COVID-19 has caused serious disruption to the Hong Kong economy and has had a considerable impact on the workforce. This article sets out some of the key issues that employers should consider in dealing with the outbreak, particularly with regard to discrimination, data privacy issues and employees' right to refuse work.
Since June 2019, Hong Kong has faced ongoing protest action. These protests were initially directed at the enactment of the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill, but their scope has subsequently expanded. This situation has created serious challenges for employers trying to manage and protect their employees. As these protests continue, employers must understand what they can and cannot do.
The General Data Protection Regulation (GDPR) came into effect in the European Union in 2018. At its core, the GDPR aims to give individuals more control over the way in which their personal data is collected, retained, managed and processed. Despite being an EU regulation, the GDPR's application extends to companies in Hong Kong and employers there should thus be aware of what they must do to comply with it.
The Court of Final Appeal recently handed down a landmark judgment in favour of the LGBT community. Employers are recommended to review their policies to ensure that they are in line with the principles laid down in the decision. In particular, employers should ensure that spousal employment benefits (eg, those set out in employment contracts) also apply to same-sex spouses, in addition to opposite-sex spouses.
In Hong Kong, an employment contract can be terminated by either the employer or the employee by giving the other party notice or making a payment in lieu of notice. A payment in lieu of notice is calculated by reference to the average daily wages earned by the employee in the 12 months preceding the day on which notice of termination is given. It is therefore important to understand what is meant by 'wages' under the Employment Ordinance.
Since 2014 the Labour Tribunal has had the power to order parties to provide security for awards or orders. The grounds for making such an order are relatively broad and give the tribunal considerable discretion. However, there has been little case law on how this discretion should be exercised. A recent Court of First Instance decision sheds some light on this area of law.
A Hong Kong court recently considered the enforcement of a non-solicitation clause against an employee who was employed as a delivery worker. The court's observations in this case as regards the enforceability of non-solicitation clauses reiterate the well-established position that employers have no right to be protected against competition per se.
In Hong Kong, there is an increasing emphasis on the importance of reciprocal duties of trust and confidence between employers and employees. 'Moonlighting' employees (even ones who take up ancillary employment with a non-direct competitor) often sit in a legally precarious position, since questions are bound to arise in relation to their fiduciary duties, restrictive covenants and the implied term of trust and confidence.
The Basic Law states that "the freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law". This protection is understood to be limited to marriage between monogamous heterosexual couples, which has led to debate on the equal treatment of homosexual couples. The principal issue is that treating same-sex relationships differently is discriminatory. The Court of Appeal recently considered this issue from an employment perspective.
The Competition Commission recently issued an advisory bulletin on the potential risks that could arise under the Competition Ordinance (Cap 619) in the employment context. The commission identified a number of practices between employers which are at risk of contravening the First Conduct Rule of the ordinance – specifically, wage-fixing and non-poaching agreements and the exchange of sensitive information.
In a recent case, a senior employee was found to have acted as a de facto director of the plaintiff company as a result of her position and responsibilities within the company. Consequently, the employee was held to have breached the fiduciary duties which she owed to the company by diverting business opportunities away from it and making unauthorised use of its resources.