Definition of “Children” and “Young Persons”

In Hong Kong, youth are a special category of people who are specifically protected under the employment law. The term youth includes both “children” and “young persons”.

In relation to employment, under the Employment Ordinance ( Cap. 57 ) a “child” is defined as a person under the age of 15 whereas “young persons” are defined as persons above the age of 15 but under the age of 18.

The Five categories of youth in Hong Kong

In Hong Kong, youth are grouped into five categories with respect to employment. They are grouped in terms of age (children and young persons), and the nature of their work (such as entertainers and apprentices). Below is a breakdown of the various categories of youth in Hong Kong:

1. 1. Children aged below 13
   2. Children aged between 13 and 15 who have either:
      • Completed Form 3
      • Not completed Form 3
   3. Entertainers
      • Extras
      • Contract Artists/Freelancers
   4.  Apprenticeship
   5. Young persons between the age of 15 and 18 who are:
      • Young persons working in factories/industrial undertakings
      • Young persons working at sea

Employment of youth in Hong Kong is governed by the Employment Ordinance ( Cap. 57 ) and various Regulations issued under the Employment Ordinance . The Employment Ordinance does not apply to youth who are registered apprentices under the Apprenticeship Ordinance ( Cap. 47 ). Under the Employment Ordinance , youths are deemed to be employed as long as they are working, whether or not they are paid or receive wages for their work.

General prohibition of work

Children aged below 13 are generally not allowed to work in all economic sectors in Hong Kong.

Children aged between 13 and 15 are not allowed to work in factories or to take employment that is industrial in nature; but they can be employed in non-industrial establishments. Therefore, these children can work in offices or service and retail industries. Among these children, the law differentiates between those who have completed Form 3 education and those who have not.

A. Children aged between 13 and 15 who have completed Form 3

Children aged between 13 and 15 who have completed Form 3 are given more flexibility compared to those in the other category of the same age group. This is because students who have not yet completed Form 3 are assumed not to have completed the nine years of free education provided for by the government.

For this category of children, before any employment commences, parent(s) should produce for the prospective employer evidence that the child has completed Form 3 of his/her secondary school education. The parent(s) also need to provide the employer with written consent for the employment of their child.

Limitations on employment conditions

There are work conditions that employers have to adhere to. This category of children shall not be made to work under the following conditions:

B. Children aged 13-15 who have not completed Form 3

Not only do parent(s) need to give consent to the child’s employment in writing, but the parent(s) also need to give the prospective employer the child’s school attendance certificate. This is to prevent children from being made to work without completing the minimal amount of education promised by government policies.

There are work conditions to which employers have to adhere. As a consideration of government policy, special attention is given to ensure that the children can still go to school.

Time Limitations

This category of children shall not be made to work under the following conditions:

Limitations on Premises

Certain premises are deemed dangerous or morally bad for the children. Therefore, the Employment of Children Regulations ( Cap. 57B ) lists certain premises where Children aged from 13 to15 years old shall not be employed:

1. In any premises or place where intoxicating liquor is sold and consumed.
2. Handling of refuse: Without prejudice to section 15 of the Public Cleansing and Prevention of Nuisances Regulation ( Cap. 132BK ), they shall not be employed in the handling for gain or profit of any refuse in any public place
3. Handling of dangerous goods: In the handling or delivery of any dangerous goods to which section 3 of the Dangerous Goods Ordinance ( Cap. 295 ) applies.
4. Dangerous machines: At any machine, which by reason of its cutting, grinding, rolling, pressing, crushing or similar action, is dangerous.
5. In any of the following premises or places, that is to say-
   1. Any dance hall, billiard saloon, mahjong, tin kau or gambling establishment; or
   2. Any premises or places at which any fixed odds betting or pari-mutuel betting, cash sweepstakes, or lottery is organized or conducted.
6. In any place of public entertainment except in one presenting a stage performance the net profits (if any) of which are devoted to purposes other than the private gain or profit of the promoters of the performance.
7. In the kitchen of any hotel, boarding house, cooked food shop, cafe, restaurant or any establishment of a similar kind.
8. In outside window cleaning at more than 3m above ground level.
9. In any abattoir or slaughterhouse, within the curtilage of any abattoir or slaughterhouse or in any premises so used in therewith.
10. In any hairdressing saloon or massage parlour.

Normally, the statutory regulations under the Employment Ordinance ( Cap. 57 ) and Employment of Children Regulations ( Cap. 57B ) apply to children employed in Hong Kong. However, “entertainers” are a special category and are exempt from parts of the statutory requirements. These exceptions have been made by the Commissioner of Labour for the purpose of furthering the arts and for training.

The exception is made so that “an employer in the entertainment, advertising or related field… may employ child entertainers of different ages”.

Threshold on application to employ child entertainers

Application procedures are used to protect child entertainers. First, an employer who wishes to employ child entertainers should apply to the Commissioner of Labour. Second, the employment of the children should not “interfere with their well-being, including that of safety, health and morals”. Then, on application, the Commissioner of Labour will impose specific conditions and restrictions on a case-by-case basis. Moreover, children below the age of 13 are not allowed to work for profit purposes, even as entertainers.

The categories of entertainers are further divided into two categories with specific rights and protection:

• Extras and
• Contract Artists/Freelancers.

A. Extras

Extras are classified as child entertainers who are employed on an ad hoc basis for a particular programme or production. The employment is limited to that particular production and programme itself, and does not extend beyond that performance. To protect child entertainers, a script or storyboard of the production should be submitted to the Labour Department to ascertain the content of the performance.

1. Limitations on employment conditions

There are certain limitations on employment conditions for extras. There is also a special case for children under 6 years of age where the required rest periods are more frequent. Children extras shall not be made to work under the following conditions:

2. Additional conditions

Additionally, with respect to child extras, free transport should be provided to take each child employee home if he/she is required to work after 7 p.m. Furthermore, it is prohibited to involve a child in acts that are dangerous to his/her life, health or morals.

3. Special conditions for child extras

Special conditions are imposed on child extras, and responsibility is given to the parent(s) for making decisions for the child. One of the special conditions is that the employer(s) have to send past employment records (in respect of each and every child entertainer containing his/her personal particulars and previous place of employment) to the Labour Department, together with the parent’s written consent for employment which has to indicate the school name and class the child is attending.

B. Contract artistes/freelancers

Contract artistes and freelancers are defined as those child entertainers who are employed under a contract covering a certain period of time or on a programme by programme basis. Their employment is not limited to a specific programme and might span a longer time period.

1. Procedural protection of contract artistes/freelancers

To protect the children, a script or storyboard of the production should reach the Labour Department at least seven days before commencement of the employment. This is to better ascertain the content of the performance that the child is involved in. In addition, copies of each child’s employment record and his parent’s written consent for the employment should be submitted. A valid school attendance certificate (from the school head), or evidence of the child’s completion of Form 3, should be submitted at the same time. These measures can better protect children who are contract artistes/freelancers.

2. Limitations on employment conditions

Certain limitations are imposed on the employment conditions of contract artistes/freelancers. Special treatment is given to children under the age of six. A child entertainer is prohibited from working:

Additionally, each child employee should be given free transport home if he/she is required to work after 7 p.m. Furthermore, involvement of a child in acts that are dangerous to his/her life, health or morals is prohibited.

3. Special conditions for contract artistes/freelancers

A list of special conditions is given for the employment of contract artistes/freelancers. They include procedural protection and certain rules imposed on the parties involved in employment of the child.

4. Procedural protection of contract artistes/freelancers

Employers need to keep documentation ready for inspection by the Department of Labour so that children are legally protected. The employer should maintain and ready the following documents for inspection by Labour Inspectors:

1. an employment record in respect of each and every child entertainer containing their personal particulars and information about the employment;
2. a written consent for the employment from the child’s parent; and
3. a valid school attendance certificate or evidence of completion of Form 3 in respect of each child.

5. Conditions that need to be fulfilled for child entertainers to be employed

Certain rules are imposed on the parties to a child’s employment to better protect the child. For example, it is a rule that children and/or their parent(s)/guardians do not receive any pecuniary reward for taking part in the performance. This includes financial rewards in/under any terms or titles. A second condition is that the safety, health and welfare, as well as the schooling and morals of the children should not be jeopardized in the course of the performance activities. For example, the frequency of performances must not exceed seven days per month or four days per week. A final condition is that the employer needs to apply for insurancefor the children.

A. Definitions

According to section 2 of the Apprenticeship Ordinance ( Cap. 47 ), “Apprentice” means the party to a contract of apprenticeship who agrees to learn a trade or occupation. An apprenticeship is an exception to some rules for an employment contract: Section 2 , Apprenticeship Ordinance ( Cap. 47 ). Apprentices have special work hours, special contract terms, and a Director of Apprenticeship can be appointed to investigate claims and any infringement of the ordinancearising from the employment. Currently, there are 45 recognized apprenticeship trades. For the purpose of the Apprenticeship Regulations ( Cap. 47A ), “period of employment” means the period an apprentice spends on the job, including intervals allowed for meals or rest ( regulation 2 ). “Hours worked” means time in which the apprentice is employed, exclusive of the intervals allowed for meals and rest ( regulation 2 , Apprenticeship Regulations ( Cap. 47A )).

According to section 7(1) of the Apprenticeships Ordinance ( Cap. 47 ), it is young persons who are in employment as an apprentice under a contract of apprenticeship. A “young person”, according to section 2 of the Apprenticeship Ordinance , means a person of or over the age of 14 years and under the age of 19 years; however, under section 44 of the Ordinance, the Chief Executive may extend the upper age limit for a young person from 18 years to an age not exceeding 21 years.

B. Examples of apprenticeship

There are 45 recognized Apprenticeship trades. Below are some examples of such trades.

1. Electricity technicians (CLP)
2. Foreign trade and logistics management
3. Electrical, mechanical and quantity surveying

C. Medical examinations required for apprenticeship

Many apprenticeships are physically demanding. To better protect apprentices and their employers, apprentices are required by law to be medically examined with respect to his/her fitness to be employed in the trade. The employer should arrange and pay for the medical examination of the apprentice before the registration of the contract of apprenticeship.

D. Limitations on work conditions

Limitations are imposed on the working conditions of apprentices, in order to better protect them. Apprentices can not be employed under the following conditions ( Regulation 8 , Apprenticeship Regulations ( Cap. 47A )):

E. Overtime employment and related limitations

Apprenticeships might be required to work overtime. The law permits apprentices to work overtime, but subject to certain limitations. Apprentices above the age of 16 may work overtime. However, the employer shall not require or permit an apprentice to work overtime if such overtime work would prevent the apprentice from attending a course of instruction which he is required to attend.

If the Commissioner for Labour finds that overtime employment adversely affects the health of an apprentice, the Commissioner may prohibit the overtime employment.

Extra limitations are imposed on the total hours of overtime. For apprentices under regulation 9 , Apprenticeship Regulations ( Cap. 47A ), the total hours of overtime shall not:

F. Apprenticeship contracts

Apprenticeship contracts are a special kind of employment contract because certain sections of the Employment Ordinance are excluded. However, the law requires every contract of apprenticeship to be in writing, and contain the prescribed terms and conditions. Provisions that should be included in apprenticeship contracts are listed in the Apprenticeship Regulations . They include measures protecting the apprentice, such as:

• • The wages to be paid to the apprentice, and the frequency and manner of payment of wages;
  • the normal hours the apprentice is required to attend his place of employment; and
  • the payment of sickness allowance or the entitlement to sick leave during any illness of the apprentice.

( Regulation 4 , Apprenticeship Regulations ( Cap. 47A )).

G. Termination of contract

To protect the apprentices, the Director of Apprenticeship can terminate a contract of apprenticeshipunder certain conditions. For example, if the Director is satisfied that the employer is unable to, or does not give the apprentice adequate training as stated in the contract of apprenticeship, the Director could terminate the contract. Another consideration is that if it is for the benefit of the apprentice, the Director could also terminate the contract.

H. Government powers of entry, inspection and prosecution of offenders

The Director of Apprenticeship and inspectors may be given powers under the ordinance to investigate claims of infringement of the rights of apprentices. The Director may enter and inspect any premises at which an apprentice or young person is believed or known to be employed. He could require the submission of any record or documents relating to the employment of the young person, and may take copies of these documents. The Director could further make an examination and inquiry to ascertain whether or not the Apprentice Ordinance is being complied with, and seize any things that appear to be evidence. Finally, the Director is given the power to examine persons who are found in those premises, and require them to answer questions that have legal effects.

According to section 4(1)(d) of the Apprenticeship Ordinance ( Cap. 47 ), the Director “shall inquire into the progress and welfare of apprentices.” Furthermore, according to section 35(a) of the Apprenticeship Ordinance ( Cap. 47 ), the Director and an inspector may “enter, inspect and examine, by day or night, any premises or place in which he knows, or has reasonable cause to believe, that an apprentice or a young person is employed”.  The Director of Apprenticeship may appoint inspectors to advise and assist employers on the training and employment of apprenticeships.  They may make regular visits to the workplaces of the apprentices to ensure the apprenticeship schemes are properly implemented.

Under section 39 of the Apprenticeship Ordinance ( Cap. 47 ), an apprentice who has a complaint may refer it to the Director who shall “endeavour to settle it by conciliation.”  The inspectors appointed by the Director of Apprenticeship may also handle any disputes arising out of a registered contract.

Furthermore, the investigation process also protects the privacy of persons involved. The Apprenticeship Ordinance stipulates that anyone who has made a complaint about a registered contract of apprenticeship will have his or her identity hidden. Officers appointed under the Apprenticeship Ordinance may not disclose the name of an apprentice unless there is a court trial.

After an investigation is made, the Director may prosecute any offenders.

An employer who breaches the above regulations will be guilty of an offense; and be liable to a conviction and a fine of $5,000. ( Regulation 12 , Apprenticeship Regulations ( Cap. 47A ))

In Hong Kong, young persons are those above the age of 15 but under the age of 18.

In general, young persons can be employed without much restriction, subject to two pieces of legislation governing their employment. The first is the Employment of Young Persons (Industry) Regulations ( Cap. 57C ), which pertains to young persons employed in factories or industrial settings. The second piece of legislation is the Employment of Young Persons and Children At Sea Ordinance ( Cap. 58 ), which pertains to young persons employed on ships and other marine vessels.

A. Young persons employed in factory/industrial settings

Work hour limitations

Extra conditions are imposed to protect young persons employed industrially. For example, no young person shall be employed to work underground in any mine or quarry or tunnelling operations.

Second, no young person shall be allowed to carry any unreasonably heavy load. Young persons under the age of 16 shall not carry loads of more than 18 kg in weight.

Third, young persons “whose work is done standing,” shall be given opportunities and facilities to rest.

Fourth, no young person shall be employed in dangerous trades. Below is a list of dangerous trades as defined by the law ( Schedule 1 , Factories and Industrial Undertakings Ordinance ( Cap. 59 )):

• Boiler chipping;
• The manufacture of glass from basic raw materials;
• Manufacturing processes involving the use of arsenic, lead, manganese, mercury, phosphorus, or any compound of any of them;
• Vermillion manufacture;
• Chromium plating;
• The machining or grinding of celluloid or magnesium, or of any article wholly or partly made of celluloid or magnesium in any manufacturing process;
• The manufacture of hydrochloric, nitric or sulphuric acids.

B. Youth working at sea

This category of youth is defined as young persons and children who are employed at sea, on a vessel or ship.

Legal rights and protection

There are two subcategories of youths employed under the Employment of Young Persons and Children At Sea Ordinance ( Cap. 58 ), and each subcategory has specific legal rights and exceptions to some limitations imposed under this ordinance.

In Hong Kong, both written and verbal employment contracts are enforceable. But it is preferable that any employment contract is made in writing and signed, as signed written contracts have many more benefits over verbal employment contracts.

A. Benefits of signed written contracts

Written employment contracts that are signed have a multitude of benefits as they specify the employment terms and conditions. This has an effect of clearly delineating the obligations of both employers and employees and thus, would better protect the interests of the employees. If there is a dispute regarding work conditions, a clear, signed, written contract will have the effect of clarifying the issues. A signed written contract can act as a reference point for both the employers and employees to discuss or arbitrate any of their contractual duties.

B. Things employees should do before signing a contract

Employees should ensure that the contractual terms of employment are understood. Employers are obliged to ensure contractual clarity, as doing so is in the best interests of both employers and employees. If the employee does not understand the contractual terms or if the contract terms are too ambiguous, the employee should ask the employer to clarify the terms. Clarification is important, especially for those terms involving financial and time issues such as holiday pay, time of wage payment, and even whether or not breaks are allowed at work.

Employees can consider getting legal advice before signing a contract. Usually the contract need not be signed immediately. If a dispute on the terms arises after the contract is signed, it will create a lot of complications and the dispute may need to be resolved through legal action eventually.

Employees are entitled to examine the employment contract before signing the contract. Potential employees are also allowed to take a copy of the offered contract away to seek advice before they sign it. They are also entitled to keep a copy of the contract after signing it.

C. Items that should be in a contract

The Labour Department has provided a sample contract that is clear and contains all the important provisions that should be found in an employment contract:

Please see the Labour Department website for details.

There are certain provisions that a good employment contract shall include, for example:

1. 1. Working hours: are they fixed per week/ per day? Is shift work required? Another example is meal breaks- how many hours are permitted for breaks per day?
   2. Wages: are the wages fixed? Is it a Commission or a tips system? Is there any meal allowance and travelling allowance?
   3. Holidays: are statutory holidays included as provided in the Employment Ordinance ? Does the job provide time off on public holidays?
   4. Paid annual leave: Is there paid annual leave for 7-14 days as specified in the Employment Ordinance ?

D. Definition of wages

According to section 2 of the Employment Ordinance ( Cap. 57 ), the term “wages” include all remuneration, earnings, and allowances given by the employer.

Remuneration includes wages that are paid regularly, or any bonuses and commission. Allowances might be things such as payment given in compensation for transportation costs and purchasing utensils and office tools.

E. Legal provisions regarding work time

The Employment Ordinance ( Cap. 57 ) includes provisions regarding employee’s rest periods and holidays. This gives the rest periods and holidays of employees a statutory force, and that means these rest periods and holidays are legally enforceable. Before signing the employment contract, employees should ensure that similar provisions for rest periods/times and holidays are found in the contract.

Under section 17 of the Employment Ordinance ( Cap. 57 ), the employee is entitled to not less than one rest day in every period of seven days, provided that the employee is employed for more than four weeks, and working more than 18 hours a week.

All employees are also entitled to statutory holidays, which are listed under section 39 of the Employment Ordinance ( Cap. 57 ).

Moreover, an employer cannot pay an employee in replacement of a statutory holiday. If an employee has worked on a statutory holiday, an alternative rest day must be arranged within 60 days. This is provided in sections 40 and 40A of the Employment Ordinance ( Cap. 57 ).

F. Other things to be examined before signing a contract

There are other major contractual terms that should be examined before signing an employment contract. They are detailed below.

1. Non -competition clauses

One example is a non-competition clause. Non-competition clauses prohibit the employee from being employed in a similar position or industry for a certain time, and/or within a certain distance or radius. Sometimes non-competition clauses prohibit the employees from bringing certain trade secrets to another company. Under the common law (case law precedents), whether or not the employer can enforce the non-competition clause is based on how reasonable the non-competition clause is.

2. Frequency of wages

As previously stated, there are a multitude of methods for calculating wages. As regards payment of wages, employees should ask if there is a fixed payment day. Employees also need to consider what would happen if payment is delayed or wages go unpaid. A good contract should have these provisions covered. Whether or not there were bonuses or commissions for performance is an issue that should be covered, together with the time of payment of any such bonuses or commissions.

3. MPF contributions

Mandatory Provident Fund contributions are, by law, a compulsory part of employer-employee relationships. The question is whether or not the MPF contributions fit the legal requirements. For example, an employee with an $15,000 monthly income would have to pay 5% of his wage to an MPF, while his/her employer will have to contribute an additional sum amounting to 5% of the employee’s income. All these contributions are legally protected and there are set rules for the amounts contributed.

Another question is whether the employer can set off its obligation for severance payment or long service payment against its MPF contributions in the event of contract termination. A thorough employment contract should include provisions that clarify MPF contributions.

4. Remuneration for overtime work

Questions relating to remuneration for overtime work usually include how the overtime payment is to be calculated. Another question would be whether or not there is any provision for overtime payment included in the contract. If overtime payment is included in the contract, there should be a definition of what is meant by “overtime” in the contract.

5. Resignation

Regarding resignation, customary procedure is that the employee should submit a notice of resignation to his employer one month beforehand. However, situations might differ on a case by case basis. Questions to be asked when examining an employment contract include whether or not notification is needed in advance of resigning. If advanced notification is needed, how long beforehand is the notification needed? If the employee breached the early notification clause, would the employee need to compensate the employer for any losses? If so, is the amount of the losses specified?

6. What happens if the company is sold?

A thorough contract might have provisions relating to the selling of the company. An employee should pay attention to whether the employment contract would be terminated, or whether he/she would continue to work for the new owners.

7. Termination clauses

Termination clauses are clauses that pertain to the dismissal of the employee. They specify conditions under which the employer could terminate the employment contract. They specify both employers’ and employee’s rights and duties. Attention should be paid to issues such as severance payment or long-term service payments.

According to section 4(1) of the Employment Ordinance ( Cap. 57 ), it applies in general only to employer-employee relationship that is  governed by a contract of employment. Employees enjoy rights, privilege and obligations that are not found with self-employed persons or independent contractor. An employee is an individual who is engaged under a contract of employment.

The Employment Ordinance applies to employers and their employees who are engaged under contracts of employment (Note), and only those employees are entitled to the rights and benefits that are provided under the Employment Ordinance . To avoid unnecessary disputes, it is important to delineate between the status of an employee and a contractor (or self-employed person) when both parties enter into a service contract.

(Note: The Employment Ordinance applies to every employee who is engaged under a contract of employment, with the following exceptions:

1. persons who are family members of the business proprietor by whom they are employed, and also live in the same dwelling as that proprietor;
2. employees as defined in the Contracts for Employment Outside Hong Kong Ordinance ;
3. persons who are serving under crew agreements within the meaning of the Merchant Shipping (Seafarers) Ordinance , or on board a ship that is not registered in Hong Kong;
4. contracts of apprenticeship registered under the Apprenticeship Ordinance except to the extent provided in that Ordinance.)

There is no one single conclusive test to distinguish a contract of employment from a contract for service. Some factors to be considered in identifying a contract of employment are as follows:

A. Control

• Who decides on the matters of recruitment and dismissal of workers?
• Who pays for the workers’ wages and in what ways?
• Who determines the production process, timing and method of production?

B. Ownership and provision of factors of production

• Who provides the tools and equipment?
• Who provides the work place and materials?

C. Economic considerations

• Do the workers carry on business on their own account or carry on the business for their employers?
• Are the workers involved in any prospect of profit, or are they liable for any risk of loss?
• How are the worker’s earnings calculated and profits derived?

The relevant factors to be considered are determined by the circumstances of each case. For example, workers who bring their own tools and materials for their work are more likely to work under contracts for service by independent contractors. In contrast, those who are fully provided with tools and materials by their bosses are more likely to work under contracts of employment.

In delineating an individual case, all relevant factors should be carefully weighted and an evaluation and analysis of the factual circumstances in which the work is performed should be carried out. You can also refer to the Labour Department’s webpage for more information.

For further reference, the Inland Revenue Department has a set of criteria for determining whether a service contract is a contract of employment. The major criteria are highlighted as follows:

• there is no employment-type benefit (e.g. money, annual leave, sick leave or pension) provided for the service carried out;
• the service is not required to be carried out personally (e.g. can hire assistants/sub-contactors);
• the performance of the service is not subject to the control or supervision that may be commonly exercised by an employer in relation to the performance of an employee’s duties;
• the remuneration is not paid or credited periodically (e.g. weekly or monthly) as is common with employment contracts;
• neither the service provider nor the receiver has the right to terminate the service contract before the expiry of the contract or before the job finished, by giving prior termination notice/money in lieu of notice to the other party; and
• neither party in the service contract has intended to lead members of the public to believe that an employment relationship exists.

If all of these criteria have been satisfied, then a contract of employment is unlikely to exist. For more details on the criteria, please see the Inland Revenue Department’s webpage.

In cases of dispute about whether or not the subject contract is a contract of employment, the jurisdiction or judgment rests with the Court. A local case was finally heard before the UK’s Judicial Committee of Privy Council in 1997 (the final appellant court for Hong Kong before 1 July 1997). The Appellant, a golf club caddie, did not have a written employment contract, and there was also no guarantee by the club that he would get any work from the players at the club. However, there was an agreed payment rate per round and he was also required to wear a uniform provided by the club. The Privy Council ruled that he was an independent contractor/self-employed person rather than an employee because there was no mutual employment obligation between the club and the Appellant.

However, the Privy Council reiterated that whether or not a contract of employment existed has to be determined by investigation and evaluation of all the factual circumstances in which the work is performed. In other words, no exhaustive list of factors or strict rules governs the relative weight of each factor when making the decision.

A. Basic Protection under the Employment Ordinance

The Employment Ordinance ( Cap. 57 ) provides basic protection for employees in an employer-employee relationship. Here is a list of applicable sections:

1. Prohibition from heavy, hazardous or harmful work ( section 15AA )
2. Working on rest days ( section 19(1) )
   “…No employer shall require an employee to work on any of his rest days.”
3. Annual leave pay ( section 41B )
4. Statutory holiday arrangement ( section 39(4)(a) )
5. Holiday pay ( sections 40 , 40A , 41A )
6. Severance payment ( Part VA )
7. Long service payment ( section 31R )

B. Minimum Wage Protection

Employer-employee relationships are protected under the Minimum Wage Ordinance ( Cap. 608 ). With reference to section 8 of the Minimum Wage Ordinance ( Cap. 608 ), “An employee is entitled to be paid wages in respect of any wage period of not less than the minimum wage.” The statutory minimum wage is enforceable by law and employers who breach it are liable to prosecution.

C. Protection given by the MPF

In Hong Kong, employers have to contribute to the employee’s Mandatory Provident Fund. Employees are protected under the Mandatory Provident Fund Schemes Ordinance. Section 7A of the Mandatory Provident Fund Schemes Ordinance ( Cap. 485 ) provides that an employer will have to contribute to the employee’s Mandatory Provident Fund.

D. Protection given by the Employment Compensation Ordinance

Employees are protected by the Employment Compensation Ordinance ( Cap. 282 ). This ordinance applies to situations where an employee, during the course of employment, suffers injury or damages. Protection includes no fault compensation, where an employee is entitled to compensation without needing to prove the fault of any party.  This ordinance covers “personal injury by accident arising out of or in the course of employment”. This Ordinance also covers certain occupational diseases listed in Schedule 2 of the Employment Compensation Ordinance. Employee’s compensation can cover  loss of earnings and/or earning capacity and medical expenses. Employees can also be paid for the costs and maintenance of prosthesis and surgical appliances. Under this ordinance, an employee retains the right to claim for damages in court. Finally, an employer may also claim from a negligent third party an indemnity and contribution to the employee’s compensation payments made by the employer.

A. Warning signs of an employment trap

There are many warning signs that an employment trap is in place. For example, a job that requires little related experience or qualifications but pays a high salary or bonus might suggest an employment trap being in place. Another sign includes manipulative interviews where employers ask extensive questions to collect unnecessary and personal information from the potential employees. Other signs include seminars and talks where victims are subject to group pressure to pay more money for courses or sell products. If companies provide little information about themselves or their products and services, this would be another warning sign of a possible employment traps. If after the interviews or seminars, potential employees are asked to keep the events confidential, this would be yet another warning sign. Usually, if employers invite potential employees to enrol in training courses for a fee (especially before work begins), this would indicate another imminent employment trap.

The following is a list of employment traps based on information from the Hong Kong Labour Department and various newspapers and university career advice centres:

1. Pyramid selling schemes

Some companies persuade and pressurise job seekers to buy their products in order to join the company. The job requires sharing commission (in a hierarchical way/pyramid selling), or the participants have to pay a large sum of money to get the job, and are required to make a profit through recruiting other members (including relatives and friends) as their lower tiered staff rather than directly selling the products.

Most of the reported cases of employment traps were related to the promotions field. Thus, there are ample examples of promotion related employment traps.

An example would be a job seeker who was persuaded to pay money to attend a seminar organized by a company, and then in the seminar he/she was asked to spend a significant sum on the company’s product. Knowing little about the products, the job seeker might be pressured, manipulated or persuaded to buy the products. The job seeker would then have bought products which he/she would not use, and which the job seeker does not know how to resell. The products bought from these job traps come in many shapes or forms, and they include health products, food products, and even services.

Another example is where job seekers are promised a job from a hiring company on the condition that the job seekers take some courses to upgrade their skills. The course must be paid for at the expense of the job seeker. The courses can range from language courses, presentation courses, or even leadership seminars. Usually, the courses that the job seeker paid for will not happen at all. Another possible event is that the job seekers never receive the job they were promised, even after finishing the course. These job traps usually operate on a hierarchical or multilayered recruitment plan. Job seekers who are already recruited would gain financial reward if they persuade friends or relatives intheir network to participate.

2. Talent scout scams

Some job scammers claim to be representatives from the entertainment industries (such as modeling agencies). The job scammers approach job seekers and claim that they have the potential to be models, singers and movie stars. However, conditions are imposed and must be met before they are able to start their careers. This includes having the job seekers pay fees for training classes and visits to the beautician. Other fees might include referral fees and deposits. The money paid might not be returned, or there might be no actual job referrals.

3. Financial and investment scams

Some job scammers claim to be brokers or traders of investment companies or claim to be holding high-level jobs in marketing firms. They then offer job seekers high pay for posts that require little prior experience and qualifications. Upon employment, the employees will be pressurised or manipulated to make investments with their own money or money from their friends and families. Eventually, the employers fraudulently tell the employee that their investments have failed.

4. Theft of personal data

Some scammers try to steal personal data for their own profit and benefit. The personal data are usually stolen through long, drawn out interview processes with multiple forms to fill in. The personal data that are fraudulently obtained include Hong Kong Identification Card number, bank accounts and credit card information. The scammers will then use the job seekers’ personal information to obtain loans from banks, or steal from their credit card accounts.

5. Employee versus self-employed person

While certain industries do have the custom of employing people as self-employed people, the category of self-employed person can be a job trap. Self-employed persons do not enjoy as many rights under the Employment Ordinance ( Cap. 57 ), the Minimum Wage Ordinance ( Cap. 608 ), the Employment Compensation Ordinance ( Cap. 282 ), and the Mandatory Provident Fund Schemes Ordinance ( Cap. 485 ). Self-employed persons do not enjoy paid annual leave, statutory holiday pay, sickness allowance, nor are they subject to minimum wage regulations and employment compensation. Employers might potentially take advantage of eager job seekers by offering them self-employed jobs, which might not have a signed contract. Job seekers should clarify with the employers regarding the nature of the employment, especially whether they are employed as an employee or as a self-employed person.

6. Paying below the minimum wage

All employee categories are subject to the statutory minimum wage as specified in the Minimum Wage Ordinance ( Cap. 608 ). This includes employees in full time and part time capacities. The only exemptions allowed are listed under the Minimum Wage Ordinance ( Cap. 608 ) for student interns and work experience students. All employers should pay the wages on time and the payment should not be less than the statutory minimum wage. Some employers might attempt to break the law by paying less than the minimum wage, whether or not the wage amount was specified in the contract. Thus, employees should ask the employers to clarify the amount of wages that are to be paid during the negotiation of contract. Underpaid or unpaid employees should approach the Labour Relations Division of the Labour Department.

B. Prevention against employment traps

There are a few methods by which job traps can be avoided. Generally, job seekers should make sure that the terms of the employment contract are understood before they sign it. If contractual terms are ambiguous or are unacceptable, job seekers should ask for clarification or require changes.

There are many specific methods to help you avoid becoming a victim of job traps:

1. Be realistic

Job seekers should be sensible about the rewards offered by the work (wages, bonuses, commissions) and what is required of the job seeker (in terms of prior experience, qualifications and work hours that need to be put in). Positions that offer unusually high pay but have low job requirements would be a warning sign. Another warning sign is when the recruitment process is conducted in a reckless manner.

2. Protecting personal data and privacy

Job seekers should be alert to avoid being manipulated or pressured into providing personal documents. These personal documents include Hong Kong Identity Cards, Passports, bank account numbers, records or passbooks, ATM pin numbers, and credit card information. The job seekers should be very cautious when they are asked to pay any money before they can be given the position, as it might simply be a scam to obtain their credit card and bank information for illegal gain.

3. Beware of the job nature and job duties

Job seekers should be wary of employment contracts that specify job duties that are different from those promised by advertisements and in job interviews. Another variation to be wary of is if the job is self-employment in nature and not an employer-employee relationship. Job seekers should be aware that it is not necessary to pay a fee as a condition for accepting a new job. Job seekers have the right to refuse an employment contract if they are not satisfied with it.

4. Doing due diligence

Many employment traps could be avoided if job seekers double-check the facts surrounding the job. For example, checking the business license of the company can reveal important information. If the company’s address is different from what is stated in their business license, then the company might be a fraud. Other warning signs of employment traps are if the business license has expired or if a business license cannot be produced. Due diligence can also be exercised regarding the products and the services of the company. If what the company actually sells (be it services or products) is different from what the interviewer and the job advertisement mentioned, then an employment scam might be in place. Job seekers can also cross check the job nature and position offered against those of other similar positions in the same industry. If the position offered deviates from the common practices of the industry in question, the job seeker should clarify this with the potential employer.

5. Seeking assistance

There are a multitude of people and authorities that job seekers can seek help from. When in doubt, individuals can bring a friend along if they believe that the interview location might not be safe. Career advisors and lawyers can be employed to examine the employment contract and advise on the legal issues of the job. Also, there are many authorities that could assist the employed after the employment has begun. When there is a labour dispute, the Labour Department can assist to resolve it between the employer and the employee. The Labour Department is empowered under section 43S of the Employment Ordinance ( Cap. 57 ) to investigate and prosecute alleged labour offences. If a serious crime has occurred in the course of recruitment and employment, the Hong Kong Police can be contacted to provide assistance.

Please see also:

• • A Guide for Students Seeking Summer Jobs (Labour Department)
  • Young job seekers reminded to be aware of job traps and work safety (retrieved from news.gov.hk)

A. Statutory minimum wage

1. Current Policy

The current statutory minimum wage (SMW) is now set at $30 per hour as at 1 May 2013. It is calculated by multiplying the total number of hours worked by the employee in the wage period by the SMW rate. According to section 6 of the Minimum Wage Ordinance ( Cap. 608 ), “a payment made to an employee in any wage period for any time that is not hours worked by the employee MUST NOT be counted as part of the wages payable in respect of that or any other wage period”. This means the remuneration for total number of hours worked should not include rest day pay, holiday pay, annual leave pay, or sick allowance, etc.

Section 2 of the Employment Ordinance ( Cap. 57 ) states that wages as defined refers to all remuneration, earnings, allowances such as travelling allowances, attendance allowances, commission, and overtime pay, etc. Therefore, if the employers have paid wages to the employees in that wage period lower than the statutory minimum wage, additional remunerations must be paid.

2. Deductions from wages

According to section 32 of the Employment Ordinance ( Cap. 57 ), certain items can be deducted from the wages payable but must be included in the calculation of the minimum wage. These items may include, but are not limited to, damage to or loss of goods, meals, accommodation, recovery of any advance or over-payment of wages, recovery of any loan made to the employee by the employer, etc.

3. Exemptions under the Ordinance

Youth employees should be aware of whether or not the Minimum Wage Ordinance ( Cap. 608 ) applies to them. Normally, the ordinance applies to every employee, his or her employer and the contract of employment under which he or she is engaged. However, section 7(4) and (5) of the Ordinance states that it does not apply to student interns and work experience students during a period of exempt student employment.

Student Interns

To be a student intern, as defined in section 2 of the ordinance, the student employees should be:

1. enrolled in full-time accredited programmes being provided by local education institutions, or resident in Hong Kong and enrolled in full-time education programmes for non-local academic qualification at the degree or higher level;
2. having an internship arranged or endorsed by the educational institutions providing the programmes or arising from a compulsory or elective component of such programmes.

There is no restriction on the age of participants or the duration of the internship.

Exempted work experience student

To be an exempted work experience student, he or she should also be enrolled in the same kind of programme as stated in point (i) or (ii) above. However, unlike a student intern, the work experience student does not necessarily need to take part in an internship arranged or endorsed by the educational institutions providing the programmes or have the work related to a curriculum. Additional requirements are that the work experience student should be under the age of 26 years at the beginning of the employment and as stated in section 3 , the period of exemption can at most be a continuous period of up to 59 days. There should at most be only one period of exempt student employment during the same calendar year. The student employee also has to make a statutory declaration verifying this fact and provide the declaration (or copy) to the employer.

A. Introduction to the Schemes

The MPF system was launched in December 2000 with the aim of protecting the post retirement lives of the retirees. Normally speaking, except for exempt persons, regular employees working for a continuous period of 60 days or more, casual employees in the construction or catering industry working on a day-to-day basis or for a fixed period of less than 60 days, and self-employed persons should participate in the Scheme from the age of 18-65. Therefore, work experience students who are working for 60 days or more are required by law to participate in the MPF Scheme.

There are altogether three types of MPF Schemes, namely the Master Trust Schemes, Employer-sponsored Schemes and the Industry Schemes. To ensure the security of the funds, the Schemes are all governed by the laws of Hong Kong.

Among the three types, the Master Trusts Schemes are the most common ones for employers and employees, as well as self-employed persons. Likewise, the Employer-sponsored Schemes are limited to only the employees of a single employer and its associated companies. For the Industry Schemes, only employees of the catering and construction industries, especially causal employees who are employed on a day-to-day basis for a fixed period of less than 60 days, can join. Employees can choose among the schemes provided by their employers according to their own needs.

B. Contribution

The calculation of contributions differs among types of employees.

Regular employees

For regular employees having less than HK$7,100 monthly relevant income, only the respective employers have to make a 5% mandatory contribution of the employee’s relevant income. For a relevant monthly income between HK$7,100 and HK$25,000, both the employers and employees each have to make a mandatory contribution of 5% of the employee’s relevant income. Where the relevant monthly income is more than HK$25,000, the employers and employees have each to make a maximum contribution of HK$1,250.

Casual employees

The contributions made by the causal employees under the Industry Scheme depend on whether they are paid daily or not. The table referred from the Mandatory Provident Fund Schemes Authority, shows the amount of contribution for daily paid and non-daily paid causal employees.

Apart from the mandatory contributions, employees can consider making voluntary contributions. According to section 12A of the Mandatory Provident Fund Schemes Ordinance ( Cap. 485 ), all contributions are immediately vested in you, except for the accrued benefits derived from the employer’s contributions for offsetting severance payment and long service payment. Accrued benefits are the amount of each scheme member’s beneficial interest in an MPF scheme, including sums derived from the contributions made by or in respect of that scheme member, together with any related profits or losses arising from any investments of the contributions.

Notes: With reference to Schedule 2 of the Mandatory Provident Fund Schemes Ordinance ( Cap. 485 ), relevant income refers to any wages, salary, leave pay, fee commission, bonus, gratuity, perquisite or allowance (including housing allowance and other housing benefit), expressed in monetary terms and paid by an employer to an employee. It does not include any severance payments or long service payments made under the Employment Ordinance ( Cap. 57 ).

C. Investment choice

There are different types of funds that employees can choose from. Basically, they include money market funds, guaranteed funds, bond funds, equity funds, etc. Employees can choose, according to their risk preference, from among the funds offered under the MPF Scheme selected by their employers. The fund choice and investment portfolio can be filled in on the MPF enrolment form, which is provided by your employer and must be returned to your employer.

D. Tax Concession

Tax deductions are available for an employee’s mandatory contributions, but not for voluntary contributions. According to the Mandatory Provident Fund Schemes Authority (MPFA), the maximum allowable deductions are as follows:

1. $14,500 for the year of assessment 2012-13; and
2. $15,000 for the year of assessment 2013-14 and each subsequent year of assessment.

E. Withdrawal of accrued benefits

Specified in section 15(1) of the Mandatory Provident Fund Schemes Ordinance ( Cap. 485 ), employees who are at the retirement age of 65 can withdraw the accrued benefits. Subsequent provisions of the same section of the ordinance now state circumstances in which employees can withdraw the accrued benefits before they reach 65 years of age. These circumstances include, but are not limited to, reaching the early retirement age of 60, permanently departing Hong Kong, total incapacity, having a small account balance of $5,000 or less, and where no contributions have made to an MPF scheme for 12 months, or death.

F. Notes to employees

Employees should have received a membership certificate from the MPF trustee within 60 days after enrolling in the MPF Scheme. A monthly pay-record showing the amount of the employee’s relevant income and contributions should also be provided by your employers within seven working days after the contribution is made. Scheme members should also receive an annual benefit statement within three months after the end of each financial year of the scheme. If you do not receive the above documents, you should contact your employers to make enquiries.

G. Handling Complaints and Enquiries

The Mandatory Provident Fund Authority (MPFA) will handle complaints on any suspected infringement of your rights to MPF benefits. The hotline number 2918 0102 is available during office hours from 8:45 am to 5:45 pm on Monday to Friday, except public holidays, for enquiries and complaints. You can also call the “Contribution Enquiry Line” at 183 3030 to check your contribution for the last three months. You are also welcome to visit MPFA office in person for enquires, complaints or comments. The office is located in Kwun Tong. For more details, please refer to the MPFA website.

With regards to channels available for lodging complaints relating to employment disputes, one may refer to the Equal Opportunities Commission or the Labour Department. In addition, legal proceedings may be instituted by any of the relevant parties.

With regards to complaints lodged through the Labour Tribunal, the Labour Tribunal offers a quick and inexpensive way of settling monetary disputes between employers and employees. An important point is that the Labour Tribunal of Hong Kong does not allow legal representation. Legal aid is not available for Labour Tribunal cases in Hong Kong except for cases transferred to a higher court and for the relevant proceedings in a higher court. You may click here to find out more about the Labour Tribunal.

1. Are children allowed to work in Hong Kong?

In Hong Kong, youth are a special category of people who are specifically protected under the law.  The term youth includes both “children” and “young persons”. In relation to employment, a “children” are defined as persons under the age of 15 whereas “young persons” are defined as persons above the age of 15 but under the age of 18.

Children aged below 13 are generally not allowed to work in all economic sectors in Hong Kong. Children aged between 13 and 15 are not allowed to work in factories or to take employment that is industrial in nature; but they can be employed in non-industrial establishments. The law further differentiates between those who have completed Form 3 education and those who have not. If children aged between 13 and 15 are employed, the employer has to adhere to certain work conditions, for example, there are limitations on the total number of hours of work a day, and break must be given to the child employee. Children workers shall not be employed in any premises which are deemed dangerous or morally bad for them.

For more details, please visit Child and Youth Affairs > Rights of youth as employee > Laws protecting young workers.

2. My 4 year old son was invited to perform in a TV commercial. What things should I be aware of?

Employers in the entertainment, advertising or related filed may employ child entertainers of different ages. There are procedural safeguards to protect child entertainers.

First, employers who wish to employ child entertainers should apply to the Commissioner of Labour. Second, the employment of the children should not “interfere with their well-being, including that of safety, health and morals”. Then, on application, the Commissioner of Labour will impose specific conditions and restrictions on a case-by-case basis. Moreover, children below the age of 13 are not allowed to work for profit purposes, even as entertainers.

There are certain limitations on employment conditions. Special treatment is given to children under the age of six. Free transport should be provided to take each child employee home if he/she is required to work after 7 p.m. Furthermore, it is prohibited to involve a child in acts that are dangerous to his/her life, health or morals.

For further information, you may go to Child and Youth Affairs > Rights of youth as employee > Entertainers.

3. How does the law protect apprentices?

According to the Apprenticeship Ordinance, apprentices have special work hours, special contract terms, and a Director of Apprenticeship can be appointed to investigate claims and any infringement of the ordinancearising from the employment. Currently, there are 45 recognized apprenticeship trades.

The law requires every contract of apprenticeship to be in writing, and contain the prescribed terms and conditions. Apprentices are required by law to be medically examined with respect to his/her fitness to be employed in the trade. The employer should arrange and pay for the medical examination of the apprentice before the registration of the contract of apprenticeship.

The law permits apprentices to work overtime, but subject to certain limitations. If the Commissioner for Labour finds that overtime employment adversely affects the health of an apprentice, the Commissioner may prohibit the overtime employment.

For more details, please refer to Child and Youth Affairs > Rights of youth as employee > Apprenticeship.

4. Can verbal agreements be treated as employment contracts?

In Hong Kong, both written and verbal employment contracts are enforceable. But it is preferable that any employment contract is made in writing and signed, as signed written contracts have many more benefits over verbal employment contracts.

Written employment contracts that are signed have a multitude of benefits as they specify the employment terms and conditions. This has an effect of clearly delineating the obligations of both employers and employees and thus, would better protect the interests of the employees. If there is a dispute regarding work conditions, a clear, signed, written contract will have the effect of clarifying the issues. A signed, written contract can act as a reference point for both the employers and employees to discuss or arbitrate any of their contractual duties.

There are numerous things you have to be aware of before signing an employment contract. You may go to Child and Youth Affairs > Rights of youth as employee > Things to be aware of before signing employment contracts to learn more about this.

5. I am working as an intern in a hotel. Am I entitled to be paid by statutory minimum wage?

Normally, the Minimum Wage Ordinance applies to every employee, his or her employer and the contract of employment under which he or she is engaged. However, it does not apply to student interns and work experience students during a period of exempt student employment.

There are specific definitions for student interns and work experience students in law. For more details, please go to Child and Youth Affairs > Rights of youth as employee > Internship.