Introduction to Employment Law

The common law duties of the employer towards the employee are as follows –

 To provide remuneration – this is a fundamental obligation imposed on the

employer, but there is no minimum wage in Hong Kong yet except in relation
to domestic helpers. In practice the amount of the wages will be negotiated
as a term of the contract.
 To indemnify any expenses, losses, or liabilities incurred by an employee
whilst performing his duties under the employment contract.
 To provide a safe working environment.

The duties of the employee implied at common law are –

 Skill and reasonable competence - The employee agrees by implication that

the work will be done skillfully and reasonably competently. It is therefore
possible, in principle, for an employer to dismiss the employee for gross
incompetence in the performance of his duties.
 Faithful service – this duty is also known as the duty of good faith. The
employee promises to work faithfully and honestly for the employer.
 Obedience – The employee promises to carry out any lawful and reasonably
instructions given by the employer.
 Confidentiality – The employee has implied common law duty during or after
the contract of employment not to disclose trade secrets or confidential
information obtained during the employment. The difficulty in practice is
for the parties to recognize what constitutes a trade secret.

Problems for the Employer

Employees who are injured at work during the course of their employment may be
entitled to two kinds of compensation.

Employees’ Compensation

An award under the Employees’ Compensation Ordinance is payable without fault

having to be proved on the part of the employer or the employee. The
employee must prove that the accident causing injuries arises out of and in the
course of employment. The amount of compensation is assessed in accordance
 with the provisions enacted in the Ordinance.

Damages for Negligence (compensation in tort)

The injured employee may sue the employer, in addition to employees’

compensation, damages in tort. The authorities are based on

1. Breach of statutory duties e.g. under the Industrial Undertaking Regulations

2. Vicarious liability – negligence of fellow employees
3. Breach of common law duty of care – decided cases.

The Institutions of Employment Law

 The Labour Department – the principal administrative government department

which supervises, regulates, and enforces the terms of Hong Kong’s labour laws.
(See website)
 The Labour Relations Ordinance – The Labour Relations Service of the Labour
Department was established under the Ordinance to offer employers and
employees engaged in a dispute a means, known as voluntary conciliation, of
reaching a settlement. It also plays a vital role in the protection of employees’
rights.
 Trade unions come under the administrative authority of the Registrar of Trade
Unions, which ensures that the rules and practices of individual trade unions
conform to the legal requirements set out in the Trade Unions Ordinance.
 The Labour Tribunal is the principal judicial agency responsible for adjudicating
those claims which the Labour Department’s conciliation services fail to settle
amicably.
 The Employment Ordinance.

Others

 Sex Discrimination Ordinance

 Equal Opportunities Commission
 Disability Discrimination Ordinance
 Employment Ordinance

Who is an Employee?
There are four categories of worker recognized by the common law and the
Employment Ordinance. They are

1. The full-time employee

2. The casual labourer, who may or may not have worked continuously for the
same employer for the preceding four weeks
3. The outworker, who may or may not be an employee
4. The independent contractor

Examples of the self-employed

 The proprietor of a dry-cleaning shop

 Taxi drivers
 Dentists
 Barristers
 Partners in a firm of solicitor or accountant
 Shoe-shine men

Examples of employees

 Chauffeurs
 The Secretary of Justice
 The Chief Executive
 Teachers

The Tests

1. The control test – An employer tells the employee what work to do and how to
do the work.
2. The Organisational Test - e.g. “A ship’s master, a chauffeur and a reporter on the
staff of a newspaper are all employed under a contract of service, but a ship’s
pilot, a taximan and a newspaper contributor are employed under a contract for
services. For contract of service, a man is employed as part of the business, and
his work is done as an integral part of the business.
3. The Multi Factor Test
A. The employer’s power or right to select the individual
B. The employer’s power and right to dismiss the workman
 C. The employer’s duty to directly or indirectly to pay the workman
D. The payment of a periodical wage calculated by reference to piece or time
worked as opposed to remuneration by a fixed sum
E. Performance of at least part of the work by the employee himself
F. The employer’s right to demand the exclusive services of the workman
G. The fact that the services are to be performed at the employer’s premises
H. The employer’s duty to provide tools and equipment
I. The workman’s obligation to work at times determined by the employer
J. The fact that the workman is engaged to work generally
K. The works used in making the contract – the intention

Compare the case of Lee Ting Sang with Cheng Yuen