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Industry-Specific Reference Guidelines on Minimum Wage Ordinance

August, 2011

 

In June 2011, the Labour Department has published the English version of the industry-specific reference guidelines on the Minimum Wage Ordinance ("MWO") in respect of the real estate agency, logistics, property management, securities services and cleaning services, hotel and tourism, catering and retail industries.

 

In this article, we will highlight some of the subjects covered in the guidelines which are intended to address the characteristics and mode of operations of the relevant industries.

 

"Leaving the Field" Period

 

In the hotel and catering industries, it is quite common for the employers to grant employees off-duty time during non-peak hours. There is a question as to whether such time will be counted as hours worked in the calculation of the minimum wage.

 

During the "leaving the field" period, if an employee is in attendance at his post for the purpose of doing work in accordance with the employment contract or with the agreement or at the direction of the employer, such time will be considered as hours worked whether or not the employee is provided with work.

 

On the other hand, if the employee is not required to remain in attendance at his post and is free to go out to attend to personal matters or take a rest or engage in his own activities, such time will not be considered as hours worked.

 

However, if the time for "leaving the field" is considered as hours worked under the employee's employment contract with the employer and is specified as such under the employment contract, such time will be included as hours worked in the computation of minimum wage.

 

Meal Break

 

In deciding whether to regard the meal break as hours worked or not, the same principle as in the case of "leaving the field" period can be applied in all industries.

 

Some employers in the hotel and catering industries provide free meals to the employees in the staff canteens or at the employers' own restaurants. If the employee is not required to remain in attendance at his post and can decide whether to have meal at the staff canteen/employer's restaurant or not, then such time will not be considered as hours worked.

 

On the other hand, if a tour escort, when taking his own meal, is required to attend to the tour group and their meal arrangements, then the meal time will be considered as hours worked as he is in attendance at his post in the restaurant in accordance with the employment contract or with the agreement or at the direction of the employer.

 

Travelling time

 

In the tourism industry, a tour guide is required to set off from home and then meet the tour group at the airport or other designated places to commence the trip and check-in arrangements, etc. According to the MWO, travelling time from an employee's place of residence to his place of employment in Hong Kong will be excluded as hours worked. In this case, the airport or other designated meeting places will be regarded as the place of employment in Hong Kong and the travelling time from the place of residence to such place will not be considered as hours worked.

 

In case the tour escort is required to accompany an outbound tour group and take the flight, the flight time will be considered as hours worked.

 

In the logistics industry, some employees will be required to work in both the Hong Kong office and the employer's warehouse in the Mainland (say two days in a week), the travelling time from the employee's place of residence to the Mainland warehouse will generally not be counted as hours worked as the Mainland warehouse will be considered as the usual place of employment outside Hong Kong. However, if such travelling time is regarded as hours worked under the employment contract, then it will be included as hours worked. 

 

On the other hand, if an employee is required to attend to a client office in the Mainland which is not the usual place of employment, the travelling time from the employee's place of residence to such client office outside Hong Kong will be considered as hours worked.

 

Substituted holiday / rest day / overtime arrangement

 

If an employee is required to work on a statutory holiday or statutory rest day in a month (say in July) with the alternative holiday or substituted rest day taken in the following month (i.e. in August), the worked hours on the statutory holiday or statutory rest day will be counted as hours worked in July. Similarly, if a salesperson has overtime work in July at the direction of the employer and will be compensated by time-off-in-lieu in August, the overtime work in July will also be counted as hours worked in the month of July.

 

 

For further information, please contact:

 

Cynthia Chung, Deacons

cynthia.chung@deacons.com.hk

 

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