Legal News & Analysis – Asia Pacific – Hong Kong – Labour & Employment

Do you employ part-time staff? Or casual employees? Or temporary workers. In the eyes of a lawyer, you don’t. None of these terms has a legal meaning in Hong Kong.

The status of employees is decided by whether they are in “continuous employment”. Continuous employment occurs when an employee is employed for four or more consecutive weeks, and works at least 18 hours in each of those weeks. This is the 4-18 rule.

All employees are entitled to a basic level of protection under Hong Kong law. This applies whether an employees is continuously employed or not.  Once an employee is in continuous employment though, he may qualify for additional protection and benefits.

The onus is on the employer to prove that an employee is not under a continuous contract.  Some absences and breaks in employment can be disregarded when calculating hours worked for the 4-18 rule.  Absence from work due to sickness or injury is disregarded, if supported by a doctor’s certificate.   Even if an employee does not meet the 4-18 rule, he may still be in continuous employment if he is regarded as continuing in the employment by law, mutual arrangement, or trade custom.

Once there is a global or umbrella employment relationship based on mutual obligation, then the hours for that employer will be counted.  It does not matter if the hours were worked under different employment contracts with the same employer.  

Labour groups have expressed concerns that some employers deliberately set the employees’ working hours below the 4-18 requirement. The recent case of Anne Fong –v- Hong Kong Adventist Hospital is an example of this.  Similarly, in the hotel industry some employees are required to take a week off after working for three weeks so that their employment is not continuous.

This is a cause of concern, but this is not an easy issue. It is not always a case of an employer forcing staff to take short hours.  Surveys by the Census and Statistics Department showed that most employees who work less than 18 hours did not want to work longer hours for personal reasons.  Some of the other options will place more cost and administration on employers.  There is also the risk that employers may hire fewer people on short hours, if the same costs of employment apply. Still, although some employees are unfairly disadvantaged by the 4-18 rule, there is recognition that it is fair to give more rights to employees who work more and work regularly. 

In a paper submitted to the Legislative Council Panel on Manpower by the Labour and Welfare Bureau of the Labour Department, four approaches were proposed to improve the current position:

• Remove the continuous contract requirement:  A key question will be whether intermittent employment with one employer should be counted as one single employment, even if weeks or months separate working periods.

• Calculate employees’ benefits pro-rata to working hours:  The question here is what number of hours represents an entitlement to full employee benefits–18 hours per week, or a higher number that reflects a traditional full working week (say, 48 hours).  Another complication may arise where a person works in more than one job.  Working out calculations for casual and intermittent employees to calculation of sickness leave days and similar accrual benefits will be difficult.

• Change to a four-weekly basis of calculation: This would mean that continuous employment arises when 72 hours or more are worked within four weeks, rather than 18 hours in each week.  This will help some employees achieve continuous employment.  If an employee works 20 hours in three consecutive weeks, and then 12 in the fourth week, then he would fail under the 4-18 rule, but would be in continuous employment on a four-weekly basis of calculation.  But which four weeks should be taken for the purpose of the calculation?  On a rolling four week basis, people may fall in and out of continuous employment more easily.

• Lower the threshold of 18 hours per week to, say, 16 hours per week:  This again will bring some employees into the net of continuous employment.  It will not resolve employers who will deliberately roster schedules at 15 hours per week, or operate a three weeks in four schedule.

Interestingly, other countries have gone the pro-rating route, even with its difficulties.

There is a sense that Hong Kong is out of step, and that change is overdue.  Yet, the 4-18 rule has been in force for some time.  It has the attraction of clarity, and avoids complications posed by some alternatives.  Is it time for change? We shall have to wait and see. 

The progress in reviewing these proposals has been slow. The Legislative Council Panel on Manpower met in March and July 2013. The majority of the Panel believe the law should be changed to improve the position of the employees who do not meet the 4-18 rule. The Secretary for Labour and Welfare will revert on the progress to the Panel by end of 2013.

A View From The Courts: Casual Employment In Operation

Anne Fong worked as a dental hygienist at the Adventist Hospital for over 25 years.  However, Ms Fong was employed in three different, connected periods – 16 years by the hospital, two years directly by a dentist attending at the hospital, and then from 2002 on by the hospital again.  Each employment broke the continuity of the prior employment.  The main issue was whether the third period of employment from 2002 was a continuous employment. 

The employment from 2002 was set out in successive short-term contracts.  This was the arrangement:

• The hospital and Ms Fong agreed the times when Ms Fong would provide services.
• Each week Ms Fong provided a schedule of when she may be available to provide services.  This was an invitation to treat.
• The hospital gave two days’ notice of appointments for which Ms Fong’s services were requested.  This was an offer of employment for those hours.  The hospital never offered more than 18 hours in a week.
• Ms Fong agreed (or refused) to work for those appointments.  This was an acceptance of employment.
• The hospital never promised to offer Ms Fong a maximum or minimum number of hours.
• Ms Fong acknowledged that she was a casual employee who was not continuously employed.

Ms Fong stood by from time to time, waiting for a call by the hospital to attend patients on an ad hoc basis.  This was on a voluntary basis, and not required by the employment contract.  Ms Fong was not paid for stand by time, and the hospital never requested or directed her to be on standby.  The standby periods were excluded from calculation of working hours.

Ms Fong performed other work incidental to the appointments – preparation for appointments, tidying up after, and similar work.  This was employed work, and could be included in calculation of hours to assess whether there was a continuous employment.

Fong Anne v Hong Kong Adventist Hospital [2010] HKEC 985

For further information, please contact:

Pádraig Walsh, Partner, Bird & Bird
[email protected]

 
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