Upcoming development in employment law in Hong Kong

by DLA Piper

[co-author: Naveen Qureshi]

Paternity Leave

LegCo is proposing to introduce paternity leave provisions in the Employment Ordinance (Cap 57) (EO). The government has taken the lead to promote child-bearing and family-friendly practices in Hong Kong, and it currently provides five days' paid paternity leave at four-fifths of average daily wages to all full-time employees. Under the proposed amendments, an employee will be eligible for paid paternity leave if he has at least 40 weeks' continuous service immediately before the expected or actual date of childbirth.

There is no concrete timeframe as to when the propose statutory paternity leave will be enacted.

Section 33 Personal Data (Privacy) Ordinance (Cap 486)

It is possible that section 33 of the Personal Data (Privacy) Ordinance (Cap 486) (PDPO), which addresses the prohibition against transferring personal data to place outside Hong Kong will come into force soon, although there is no clear timetable currently as to its implementation.

Section 33 provides that a data user (or employer) shall not transfer personal data to a place outside Hong Kong unless certain conditions are satisfied. Personal data can only be transferred outside Hong Kong include where: (i) the employer has reasonable grounds of believing that the place where the personal data is transferred to has in place any law that is substantially similar to, or serves the same purpose as the PDPO; and (ii) the employee had consented in writing to the transfer etc.

EOC Developments

Following the Equal Opportunities Commission's (EOC) June 2013 meeting, the EOC has devised a three-year strategic plan, identifying key priority areas, including:

  • Conducting a discrimination law review - EOC members agreed that the EOC should go against all forms of discrimination and advocate equality for all by oing beyond the current remit of the four anti-discrimination ordinances (i.e. introducing legal protection on the grounds of sexual orientation and gender identity)
  • Improving education and employment opportunities for ethnic minorities; and
  • Improving integrated education for students with special educational needs and its impact on employment opportunities

The EOC will also be devoting resources to its Anti-Sexual Harassment Campaign, and to a review of the Code of Practice under the Sex Discrimination Ordinance (Cap. 480). Action plans and timelines for the new initiatives have not yet been set.

Standard Working Hours Consultation

There is currently no legislation in Hong Kong governing standard working hours. In April 2013, the Standard Working Hours Committee (SWHC) was formed to advise on whether a policy of standard working hours should be implemented in Hong Kong. The SWHC is aiming to engage in an in-depth discussion in the community with a view to building consensus and assisting the Government to identify the way forward and whether or not to implement standard working hours. Action plans and timelines for the new initiatives have not yet been set.

Contract (Rights of Third Parties) Bill 2013

The inadequacies of the doctrine of privity of contracy has prompted the Law Reform Commission (LRC) to recommend reforming the law to enable third parties to enforce contractual terms, subject to the contracting parties' manifest intention. The Department of Justice has prepared the Contract (Rights of Third parties) Bill (Bill) to implement the LRC's recommendations.

On termination, employers in Hong Kong will often enter into termination agreements, under which departing employees reiterate their confidentiality obligations to the employer, and its related companies - one issue with this is that the related company is not privy to employment contract, or the termination agreement. If termination agreement are to fall within the scope of the Bill, this will potentially make it easier for companies to their protect interests (i.e. confidentiality and intellectual property) against an employee of an related entity.

Conviction - Failure to Comply with a Court Order to pay MPF Contributions

In 2012, an amendment was effected to the Mandatory Provident Fund Schemes Ordinance (Cap 485) (the MPFO) such that it would be an offence for an employer to fail, without a reasonable excuse, to comply with a court order made in civil proceedings for the payment of arrears of Mandatory Provident Fund (MPF) contributions and contribution surcharges.

On 12 September 2013, an employer was fined $3,000 for its failure to comply with a previous court order to pay MPF contributions in arrears and surcharges - the first conviction of this kind. The sentencing sends a signal to employers that the Mandatory Provident Fund Schemes Authority is taking a more proactive role in taking action against employers for failing to make MPF contributions.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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