Basic Principles of Employment: Considerations & Legal Requirements of Hiring
As business expands, inevitably, entrepreneurs will need to recruit employees to deal with the growing amount of work. Hiring employees, however, is a complicated matter that involves much more than drafting an employment contract. By way of introduction, this article will highlight several matters that employers need to have in mind when they are hiring employees.
In Hong Kong, generally, children aged under 13 are prohibited from taking up any forms of employment. Children aged 13 or 14 can be employed in non-industrial undertakings with their parents’ consent, provided that they have completed Form III education and that their terms of employment conform to certain requirements relating to the safety and welfare of the children. No children (aged 15 or below) can work in industrial undertakings.
There is a statutory minimum wage in Hong Kong which applies to virtually all employees. The minimum wage is adjusted from time to time and, as of 19 September 2016, the statutory minimum wage is $32.5 per hour. This minimum wage requirement does not apply to:
- those who are not covered by the Employment Ordinance;
- those who are engaged under a contract of apprenticeship;
- foreign domestic helpers;
- student interns; and
- work experience students.
It should be noted that, however, “student interns” and “work experience students” are defined so narrowly as to include only students whose jobs are related to an accredited programme or a non-local education programme. Most of what we call “summer/winter interns” are covered by the statutory minimum wage requirement. For details, please see the article “Minimum Employment Benefit and Protection”.
Mandatory Provident Fund (MPF) Scheme
Under the MPF Scheme, both the employers and employees are obliged to contribute 5% of their monthly income (capped at $1,500) respectively into the Scheme. However, if the monthly income of an employee is less than $7,100, the employee does not need to contribute to the Scheme but the employer still has to. Employers will be fined or imprisoned for non-compliance with the Scheme. Student interns whose employment duration is not less than 60 days are also covered by the Scheme.
Discrimination on the following grounds are unlawful in Hong Kong:
- sex, pregnancy, marital status (Sex Discrimination Ordinance);
- disability (Disability Discrimination Ordinance);
- family status (Family Status Discrimination Ordinance);
- race (Race Discrimination Ordinance); and
- trade union membership (Employment Ordinance)
Starting from the recruitment process, employers are prohibited from discriminating any employees on these grounds. For example, employers should avoid asking questions in the employment application forms that could lead to discriminations on any of the above grounds. Aggrieved employees could either lodge complaints to the Equal Opportunities Commission or initiate court proceedings against the employers. Although there is currently no statutory protection against discrimination on the grounds of age, sexual orientation, etc., firms are encouraged to devise policies and codes that can prevent any forms of discrimination in workplace as part of their corporate social responsibilities.
Employers’ Duty of Care to Employees
Employers need to be aware that they owe a duty of care to all their employees: they need to take reasonable care of their safety in the course of their employment. They can be liable for any injury suffered by their employees when they are working. This means that employers may need to adopt positive measures to ensure their employees’ safety, and that additional costs may be incurred by adopting these measures. Also, as mandated by the Employees’ Compensation Ordinance (Cap.282), employers will have to insure against the liabilities arising from the breach of their duty of care towards employees. Details could be found in the article “Injury at Work”.
Vicarious Liability of Employers
Employers could be made vicariously liable for the acts of their employees if their employees negligently injured another in the course of employment. This means that employers may need to provide guidelines to their employees so as to minimize the risk of their employees committing negligence in the course of their employment.
 Regulation 4 of the Employment of Children Regulations (Cap. 57B).
 Ibid., Regulation 5.
 Section 7 of the Minimum Wage Ordinance (Cap. 608).
 Section 40 of the Employees Compensation Ordinance.