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The Provisional Minimum Wage Commission is planning to propose a
minimum wage rate to the Hong Kong Government. This may take place
as early as July 2010, before the Legislative Council, which has
the authority to accept or reject the proposal, takes its summer
recess.
The current draft of the Minimum Wage Bill would require all
employers in Hong Kong to pay their employees no less than the
statutory minimum wage in respect of any wage period, which would
be one month unless a different basis is demonstrated. The formula
will be:
minimum wage =
minimum hourly wage rate x number of hours worked
The bill states that the number of hours worked by an employee
will include any time when the employee is "in attendance at a
place of employment, irrespective of whether he or she is provided
with work or training at that time". Such description is
purely factual and makes no reference to any agreed contractual
terms relating to working hours.
As a result, it is likely that a stricter method of monitoring
working hours will be important for those who will be paying or
earning at the statutory minimum wage rate. The reason is that
employees earning the minimum wage will be entitled to additional
pay for any actual overtime work, or simply overtime attendance for
work.
Not surprisingly, the bill voids any provision that purports to
undermine or eliminate through contract any right, benefit or
protection conferred by the law on the employee. As such, it will
alter the present position that employers may contractually bar
overtime pay, at least for this particular group of employees.
These employees will always be entitled to the "minimum
wage", as calculated by the recorded number of hours worked
according to the formula set out above, over any wage period. Any
fixed wages which employers may attempt to set regardless of the
working hours or the level of workload for this group of employees
will no longer be legally feasible.
The hours worked by an employee in a wage period will include
any employment related travel time (except for travel to or from
home). Mealtime is excluded, unless the employee is doing work in
accordance with the employment contract or with the agreement or at
the direction of the employer.
The Minimum Wage Commission, which will make recommendations to
the Hong Kong Government, is responsible for setting the minimum
hourly wage as well as arranging the timing and frequency of rate
reviews. Legislators may either accept or reject the proposed
minimum wage level; they have no power to amend it.
It is foreseeable that whatever wage rate is proposed, employers
and unionists will make their voices heard over what they think is
justified and that the already heated debate on the topic will get
more intense in Hong Kong. Currently, major labour unions tend to
demand HKD 33 per hour, while employers generally call for HKD
24-25.
The bill will not be applicable to the following:
persons to whom the Employment Ordinance (Chapter 57,
Laws of Hong Kong) do not apply;
student interns;
domestic household workers who dwell in that household free of
charge.
The application of the law (if passed, based on the current
version) to persons with disabilities (who have validly registered
with the relevant authority in Hong Kong) will vary on an
individual basis by way of an adjustment to their minimum hourly
wage rate after a productivity assessment by an "approved
assessor".
According to the Secretary for Labour and Welfare, the aim is to
implement the new law in 2011. Meanwhile, the Legislative Council
will further scrutinize the draft bill and how the proposed law
will develop remains to be seen.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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