Contract of Service and Contract for Service

Employment 雇用 Contracts

@ Contract of service and contract for service

@ Employment Contract

@ Common Law rights and obligations of employer and employee

@ Employment Ordinance (Cap. 57)

ACY 2151 BUSINESS LAW : LECTURED BY TERMAN WONG, K.N.(黃覺岸; 筆名: 王岸然,) TEL: 2609-7843 2

@ Contract of service 雇佣合約 and contract for service 服務合約

* Under a contract of service a person places his or her labour 勞力 at the disposal 支配 of another and thus the relationship is that of employer and employee.

* Contract for service is where a person is "in business on their own account", the relationship is that of the employer at the one hand and an `independent contractor' 獨立合約者 at the other side, not an employee.

* The distinction is important as it determines whether various employment laws applied to the contracting party. Eg. unfair dismissal 不公平解雇(not in Hong Kong), union protection, and social security 社會保障 and employment rights such as maternity 婦產休假 leave, long service payment.長期服務金.

* In law of torts, an employer is only vicariously 代理地 liable for acts of employee during employment, not to an independent contractor.

In the Course of Employment 在僱用期間

We have to decide whether an employee is in the course of employment otherwise the employer is not liable, i.e whether the work he done is an act expressly or impliedly authorized by the employer.

Central Insurance v Northern Ireland Road Transport Board 1942 AER 491 HL - A petrol tanker 油車 driver employed by the defendant lit a cigarette while unloading petrol. An explosion resulted. - is smoking in course of employment ? - what the servant was employed to do in this case was to discharge petrol, this was what he was doing, albeit in an unauthorized manner.

Ricketts v Thomas Tilling 1915, 1 KB 646 - a bus conductor 售票員 drove the bus to turn it around, but he had the driver’s consent to do so -liable vicariously not for the conductor but for the driver's consent

Chaplin v Dunstan 1938 - truck 卡車, 貨車 driver on a long distance trip turned off the main road to get a drink, then collided with a motorcycle.

- going to service/toilet is expected

* Therefore, only if the employee performs a task which is totally outside the scope of work expected, the employer may still be liable.

* How to decide whether one is an employee: Master 主人 and Servant 仆人 Relationship

To determine whether there is a contract of service , ie an employee or the worker is just an independent contractor there are a number of tests, those commonly known are :

1. Control Test :

The idea was 19 century feudalistic 封建 base, ie the more control you can exercise on the employee, the more they are employees, the early case on employment law define a servant as `a servant is a person subject to the command of his master as to the manner in which he shall do his work' Yewens v Noakes 1880

Walker v Crystal Palace Football club 1910 - player of football injured and claim industrial benefit - Q. : who, what, where, when, how ? - problem is once out of team, how to control what goes on ? Ans: but can control who play and training method --> employee!

* The following are the general factors to be considered in the control test :

- power of selection of servant, hiring and dismissal - payment of wages or other remuneration 酬勞 - master's right to control method of doing work - master's right of supervision and dismissal - supply of equipment by employer - power to give orders - regulation of employee's time and place of work by employer

Gold v Essex 1942 2 AER 237 CA - p's child was taken to hospital for treatment of warts 疣子 on her face. - radiologist 放射線學者 was negligent in not protecting the child's face' permanently

ACY 2151 BUSINESS LAW : LECTURED BY TERMAN WONG, K.N.(黃覺岸; 筆名: 王岸然,) TEL: 2609-7843 4 disfigured 毀容, P sue Hospital - 1 st, on control test, insufficient control as the radiologist was skilled person. - on appeal, hospital authority liable for the negligence of a radiologist employed under a full- time contract of service

2. Organization Test / Integration Test when the control test is insufficient to cover all situations, another organization test emerged, that would apply when work is done as integral 整体的 part of business.

Cassidy v Ministry of Health 1951 -a resident surgeon 外科醫生 cannot be said to be subject to control of the hospital authority as the manner in which he performs his operations, but is part of the hospital organization and properly regarded as employee of the hospital authorities.

Stevenson, Jordan and Harrison Limited v. Macdonald and Evans (1952) Lord Denning 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. One feature which seems to run through the instances is that under a contract of service, a man is employed as part of the business, and his work is done as an integral part of the business; whereas under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it.

3. Multiple -factor Test or the Economic Reality Test :

This approach is to look at control, integration 集成, and the general facts and to balance things to decide employment exists. This is a balancing exercise. An example of this approach is:

Ready Mixed Concrete v Minister of Pensions 1968 - owner and also the driver of truck was held to be an employee as the servant agrees to provide work and services subject to control, and other provisions of contract consistent with a contract of service.

Wong Po-sin v. New Universal Paper Co Limited, Blair SPJ "The principal relevant factors (apart from control) which have been held to point in the direction of a contract of service, ie an employer/employee (or in the old terminology, a master/servant) relationship are set out below. It cannot be too strong emphasized, however, that these are merely pointers and that each taken by itself usually counts for very little, if anything. Moreover, it has been said in the most recent English case that "whether the

ACY 2151 BUSINESS LAW : LECTURED BY TERMAN WONG, K.N.(黃覺岸; 筆名: 王岸然,) TEL: 2609-7843 5 contract is one of service depends in the last resort on whether an ordinary person would so consider it in the light of his experience and knowledge".

The factors are:

(1) The employer's power or right to select individual whorn he wishes to work for him, whether the selection be made personally or through an agent. (2) The employer's power or right to dismiss the workman, either by himself or through an agent. (3) The employer's duty directly or indirectly to pay the workman's remuneration. (4) The payment of a periodical wage calculated by reference to piece or time worked as opposed to remuneration by a fixed sum. (5) Performance of at least part of the work by the employee himself; ie if the workman could delegate the entire performance of the work to another person it would weigh heavily against there being a contract of service. (6) The employer's right to demand the exclusive services of the workman. (7) The fact that the services are to be performed at the employer's premises, as opposed to the premises of the employee or of a subcontractor. (8) The fact that the services cannot be said to be rendered as part of an "independent business" carried on by the workman. (9) The employer's duty to provide tools and equipment. (10) The workman's obligation to work at times determined by the employer. (11) The fact that the workman is engaged generally, without reference to any particular task(s) . (12) The use of words in making the contract, which indicate an intention to create a contract of service.

* Note : The situation where an servant is borrowed from other:

Mersey Docks and Harbour Board v Coggins & Griffith 1946 2 AER 345 HL - 1st employer had power of dismissal over the crane 起重机 driver and paid him, but immediate control and supervision by 2nd employer. - Held: because the first employer regularly hired out crane and driver together, the first employer remain liable.

@ Employment Contract

* Like any ordinary contract, employer and employee enjoy freedom of contract among themselves provided that the minimum provisions of the Employment Ordinance are met. The contract of employment may be embodied in a written document, may be wholly oral, may need to be deduced from the parties's conduct, or may be partly in one of the forms and party in another. Although it is not usually problematic whether or not there is a contract, where the contract is not written it is often difficult to be sure of its precise terms.

@ Common Law rights and obligations of employer and employee

Obligation of Employer at Common Law

1. Remuneration, note there is no minimum wage in Hong Kong except to domestic helper.

2. Indemnity 保障, 彌償, any expenses, losses, or liabilities incurred by an employee during his/her employment.

3. Provide Works, employer is not generally under an obligation to provide work except in limited circumstance where the obligation is implied. Eg. professional training is important, or wages depend on amount of work.

4. Safe system of work, to provide the employee with a safe working environment, .i.e a safe tools, safe place of work, and select properly skilled fellow employees.

If an employer fails his obligation, employee may claim constructive dismissal 變相解雇

Obligation of Employee at Common Law

1. Skills and reasonable competence 能力

2. Duty of Good Faith

To work faithfully 誠心誠意 and honestly for the best interests of the employer, take care of the employer's property and not disrupt 使混亂 the employer's business.

3. Obedience 服從

To obey lawful and reasonable instructions given by the employer

4. Confidentiality 机密性

This is an implied duty during or after the contract of employment not to disclose trade secrets or confidential information obtained during employment.

The Employment Ordinance

The Employment Ordinance `("EO") provides statutory protection for the employee by prescribing the minimum standards to which the employer must abide and it also sets out the rights and duties of the employer and the employee. It applies to all employees in Hong Kong * regardless of occupation or salary It covers all employees in Hong Kong except for inter alia:

1. A person who is a member of the family of the proprietor of the business in which he is employed and who dwells in the same dwelling as the proprietor [s. 4(2){b), EO]

2. An employee as defined in the Contracts for Employment Outside Hong Kong Ordinance (Cap. 78) [s. 4(2)(cl, EO] i.e. manual workers who work overseas but who are employed under contracts of employment entered into in Hong Kong. As the Contracts for Employment Outside Hong Kong Ordinance defines "manual work" as including personal and domestic service, it extends to domestic helpers.

3. Contractual apprentices governed by the Apprenticeship Ordinance (Cap. 47) [s. 4(2A), EO]

4. Employees who do not have a continuous contract i.e. casual and temporary workers. The First Schedule to the EO defines a continuous contract as a period of 4 or more weeks of employment and working for at least 18 hours a week.

 A "casual worker" is a part-time worker or one who does not have a. regular or permanent job or one who is paid on a "piece rate" or commission basis. A casual worker who works for at least 4 weeks and for at least 18 hours a week is entitled to the benefits stipulated in the EO i.e. becomes an "employee" for purposes of the EO.

 A "temporary worker" is a casual worker who does not have a continuous contract.

 Under s. 3 of the E,O the onus of proving whether an employee has or does not have a continuous contract is upon the employer.

5. Independent contractors.

* Importance of distinction between an employee and an independent contractor

(1) Common law duties of employer and employee vs. independent contractor's duty to perform his contract with reasonable skill and care

(2) Employer vicariously liable for the negl4,ence and other torts of employee but not for independent contractor's torts

(3) EO confers various rights upon employees (holidays, annual leave, sickness leave, maternity benefits, wages, Lunar New Year bonus severance pay) which are not available to an independent contractor

(4) Benefits under the Employees' Compensation Ordinance (Cap. 2~32) are available to employees only i.e not to independent contractors.

Points to Note:

Notice of termination may be given at any time and may be given orally or in writing [ s. 6(1)]

Length of Notice of Termination of Contract of Employment

(1) During Probationary Employment (a) During 1st month: no notice required of either party [s. 6(3)(a) ] (b) After 1st month: not less than 7 days [s. 6(3)(b) ], without notice with pay for period of notice[s.7]

(2) After Probationary Period (a) Where contract does not provide for notice period --- 1 month [s. 6(2)(a)] (b) Where contract provides for notice period - the contractua1 period which cannot: be less

ACY 2151 BUSINESS LAW : LECTURED BY TERMAN WONG, K.N.(黃覺岸; 筆名: 王岸然,) TEL: 2609-7843 9 than 7 days [s. 6(2)(b)] (c) Without notice - with pay for period of notice in lieu [s. 7 ].

Termination of Contract by Payment in lieu of Notice. Party terminating must pay the other party a sum equal to the wages payable for the period of notice s.7.

Remedies for breach of contract

For the EMPLOYER:

1. Summary dismissal without notice or payment in lieu of notice i.e. for a serious willful breach of essential contractual conditions which tantamount to a repudiation of the contract on the part of the employee. If exercised the employee may lose the right to claim any long- service payment which may have accrued. Provided for by s 9 of E0. The grounds include: a. Willful disobedience to a lawful and reasonable order b. Misconduct c. Fraud or dishonesty d. Habitual neglect of employee's duties e. Any common law ground to allow employer to dismiss

2. Dismissal with notice or payment in lieu of notice as provided for under the Ordinance. It is automatically assumed that such dismissals arise due to redundancy unless proved to the contrary and accordingly the employee will be entitled to severance pay as provided if he has been employed for a period of no less than. 24 months.

3. Suspension without pay for up to 14 days, S. 11 Used for interim period while criminal proceedings to be decided and/or awaiting advice of the Labour Department.

For the EMPLOYEE

1. Termination without notice or payment in lieu of notice under s. 10 of EO

(a) Fear of violence (b) Permanent disability & unfitness (c) Ill treatment by employer (d) Any ground allowing employee to terminate contract without notice at common law

2. To refer matter to Labour Tribunal for resolution. Section 7 of the Labour Tribunal Ordinance as well as the Schedule thereto are reproduced below:

Jurisdiction of the Labour Tribunal

(1) The tribunal shall have jurisdiction to inquire into, hear and determine the claims specified in the Schedule.

(2) Save as is provided in this Ordinance, no claim within the jurisdiction of the tribunal shall be actionable in any court in Hong Kong.

SCHEDULE

1. A claim for a sum of money which arises from

(a) the breach of a term, whether express or implied, of a contract of employment, whether for performance in Hong Kong or under an overseas contract as defined in the Contracts for Employment Outside Hong Kong Ordinance (Cap. 78); (aa) the breach of a teen, whether express or implied, of a contract of apprenticeship; or (Added .9s of 1976 s.49) (b) the Failure of a person to comply with the provisions of the Employment Ordinance (Cap.57) or the Apprenticeship Ordinance (Cap.47). (Amended 39 Of 1973 s.9; 8 of 1976 s.4'')

2. A claim for contribution under section 26(2).

3. Notwithstanding paragraphs 1 and 2, the tribunal shall not have jurisdiction to hear and determine a claim far a sum of money, or otherwise in respect of a cause of action, founded in tort whether arising from a breach of contract or a breach ol a duty imposed by a rule of common law or by any enactment.

4. Any question as to- (a) the right of an employee to a severance payment under Part VA of the Employment Ordinance (Cap. 57); or (b) the amount of such payment. (Added L.N. 178 of 1974)

5. Any question as to (a) the right of an employee to payment of wages by a person other than his employer (b) the amount of such payment. (Added 54 of 1977s.3)

NOTE: the Tribunal may resolve matters pertaining to: i. claim of sum of money for breach of contract (if the matter is within the jurisdiction of the tribunal, no other court can decide it regardless of the quantum of the claim) ii. entitlement and quantum of severance pay iii. payment of wages by a principal contractor

Limitations: (a) No claim based on tort or bankruptcy (b) Claim must be brought within 12 months from date it arises

Rights of the employee

(a) Severance pay if employed continuously for 24 months and is now redundant as defined in sec. 31E i.e. i. cessation of business ii. business moves from Hong, Kong to Kowloon or N.T. iii smaller workforce required by employer

(b) Long service payment which is intended "as a practical alternative to unfair dismissal legislation based on the premise that the dismissal of an elderly long service employee without some form of provision for his future is itself unreasonable." Any change in the ownership of the business will not affect the employees claim to long service payment where there is no dismissal.

Frustration of employment contracts

Dismissals form but one of the avenues whereby the employment contract may be brought to an end. Such contracts may also be terminated by frustration on the grounds that: i. Its performance is rendered impossible by some intervening event usually outside the control of the parties to the contract e.g. severe illness of the employee ii. Employer goes bankrupt iii. Employer as a company is wound up

EMPLOYMENT ORDINANCE (CAP. 57)

4. Application of Ordinance

(1) Subject to subsection (2) and section 69, this Ordinance applies to every employee engaged under a contract of employment, to an employer of such employee and to a contract of employment between such employer and employee.

(2) Subject to Part IVA, this Ordinance does not apply (Amended 51 of 1974 s. 2J

(a) (Repealed 41 of 1990 s. 3) (b) to a person who is a member of the family of the proprietor of the business in which he is employed and who dwells in the same dwelling as the proprietor; (c) to an employee as defined in the Contracts for Employment Outside Hong Kong Ordinance (Cap. 78); (Amended 33 of 1992 s. 15) (d) to a person who is serving under an agreement entered into pursuant to section 10(1) of the Merchant Shipping Ordinance (Cap. 281), or on board a ship registered in a coun1ry which is represented by a consular officer resident in Hong Kong; {Amended 48 of

1984 s. 3} (e) {Repealed 8 of 1976 s. 49}

(2A) This Ordinance shall not apply to contracts of apprenticeship registered under the Apprenticeship Ordinance (Cap. 47) except to the extent provided in that Ordinance. (Added 3 of 7976 s. 49)

(3) For the avoidance of doubt it is hereby declared that the provisions of section 5(3) shall not apply to any contract of employment made before 1 April 1965.

4A. Authorization of public officers

The Commissioner may in writing authorize any public officer or class of public officer to exercise or perform any or all of the powers, functions or duties conferred or imposed on the Commissioner under this Ordinance.

{Added 10 of 1980 s. 2}

4B. Governor may give directions

(1) The Governor may give such directions as he thinks fit, either generally or in any particular case, with respect to the exercise or performance by any public officer of any powers, functions or duties under this Ordinance.

(2) A public officer shall, in the exercise or performance of his powers, functions or duties under this Ordinance, comply with any directions given by the Governor under subsection. (Added 10 of 1980 s. 2J

6. Termination of contract by notice

(1) Subject to subsections (2), (2A), (2B), (3) and 13A) and section; 15 and 33(4B), either party to a contract of employment may at any time terminate the contract by giving to the other party notice, orally or in writing, of his intention to do so. (Amended 5 of 197a s. 5; 57 of 1983 s. 2; 48 of 1984 s. 4, 55 of 198,7 s.2)

(2) The length of notice required to terminate a contract of employment shall be.

(a) in the case of a contract which is deemed by virtue of the provisions of section 5 to be a contract for 1 month renewable from month to month and which does not make provision for the length of notice required to terminate the contract, not less than 1 month; (Amended 44 of 1971 s. 2)

(b) in the case of a contract which is deemed by virtue of the provisions of section 5 to be a contract for 1 month renewable from month to month and which makes provision for the length of notice required to terminate the contract, the agreed period, but not less than 7 days; {Added 44 of 1971 s. 2}

(c) in every other case, the agreed period, but not less than 7 days in the case of a continuous contract.

(2A) Without prejudice to section 41D, annual leave to which an employee is entitled under section 41AA shall not be included under subsection (2) in the length of notice required to terminate a contract of employment. (Added 48 of 1984 s. 4. Amended 53 of 1990 s. 5)

(2B) The period of maternity leave to which a female employee is entitled under section (2) in the length of notice required to terminate a contract of employment. (Added 55 of 1987 s. 2)

(3) Where in any contract of employment, whether in writing or oral, it has been expressly agreed that the employment is on probation and the contract does not make provision for the length of notice required for its termination such contract may be terminated – (Amended 44 of 1971 s. 2) (a) by either party at any time during the first month of such employment without notice or payment in lieu;

(b) by either party at any time after the first month of such employment by giving to the other party notice of not less than 7 days. (Amended 43 of 1984 s. 4)

(3A) Where in any contract of employment, whether in writing or oral, it has been expressly agreed that the employment is on probation and the contract makes provision for the length of notice required for its termination such contract may be terminated.

(a) notwithstanding the length of notice provided for in the contract, by either party at any time during the first month of such employment without notice or payment in lieu;

(b) by either party at any time after the first month of such employment by giving to the other party notice of the agreed period, but not less than 7 days. (Added 48 of 1984 s. 4)

(4) For the purposes of this section the expression "month” means a period of time commencing on the day when notice of termination of a contract of employment is given or when employment begins, as the case may be, and ending at the end of the day before the corresponding date in the following month or, where there is no corresponding date in the following month or where the commencing day is the last day of a month, at the end of the

ACY 2151 BUSINESS LAW : LECTURED BY TERMAN WONG, K.N.(黃覺岸; 筆名: 王岸然,) TEL: 2609-7843 14 last day of the following month.

7. Termination of contract by payment in lieu of notice

(1) Subject to section 33(4B), either party to a contract of employment may at any time terminate the contract without notice by agreeing to pay to the other party a sum equal to the amount of wages which would have accrued to the employee during three period of notice required by section 6. (Amended 44 of 1971 s.3, 57 of l983 s.3)

(2) Either party to a contract of employment, having given proper notice in accordance with section 6, May at any time thereafter terminate the contract by agreeing to pay to the other party such proportion of the sum referred to in subsection (1) as is proportionate to the period between the termination of the contract and the time when the notice given would have expired. (Amended 44 of 1971 s. 3)

(3) In the case of an employee whose remuneration is calculated by the piece or task the amount of wages which would have accrued to such employee during the period of notice referred to in subsection (1) shall be deemed to be t:he amount of wages earned by the employee during the equivalent period immediately prior to the giving of the notice or, if for any reason it is impracticable to compute the amount in this manner, it may be calculated by reference to the amount earned during such equivalent period by a person in the same trade or occupation at the same worth in the same district.

(4) Notwithstanding any other provision of this Ordinance the term "wages” shall, for the purposes of this section, be deemed not to include overtime pay.

8A. Damages for wrongful termination of contract

(1) Without prejudice to section 9, 10 or 11(2), where a contract of employment is terminated otherwise than in accordance with section 6 or 7, a sum equal to the amount of wages which would have accrued to the employee during the period of notice required by section 6 shall be payable by the party terminating the contract to the other party.

(2) Without prejudice to section 9, 10 or 11(2), where a party to a contract of employment, having given proper notice in accordance with section 6 thereafter terminates the contract before the expiry of the period of notice otherwise than in accordance with section 7, such proportion of the sum equal to the amount of wages which would have accrued to the employee during the period of notice as is proportionate to the period between the termination of the contract and the time when the notice given would have expired shall be payable by the party terminating the contract to the other party.

(Added 14 of 1975 s. 2)

9. Termination of contract without notice by employer

An employer may terminate a contract of employment without notice or payment in lieu

(a) if an employee, in relation to his employment

(i) wilfully disobeys a lawful and reasonable order; (ii) misconducts himself such conduct being inconsistent with the due and faithful discharge of his duties; (iii) is guilty of fraud or dishonesty; or (iv) is habitually neglectful in his duties; or

(b) on any other ground on which he would be entitled to terminate the contract without notice at common law.

10. Termination of contract without notice by employee

An employee may terminate his contract of employment without notice or payment in lieu

(a) if he reasonably fears , physical danger by violence or disease such as was not contemplated by his contract of employment expressly or by necessary implication;

(aa) if-

(i) he has been employed under the contract for not less than 5 years; and (Amended 41 1990 s. 4; 62 of 1992 s.3)

(ii) by a certificate in the form specified by the Commissioner under section 49 and issued by a medical practitioner practicing in a Government or Government subverted hospital, or in a public hospital within the meaning of the Hospital Authority Ordinance (Cap. 113), he is certified as being permanently unfit for a particular type of work specified in the certificate for a reason or reasons stated therein; and (Amended 68 of 1980 s. 24)

(iii) he is engaged in that type of work under the contract; (Added 52 of 1990 s.24)

(b) if he is subjected to ill treatment by the employer; or (c) on any other 1lround on which he would be entitled to terminate the contract without notice at common law.

22. Wage period

The wage period in respect of which wages are payable under a contract of employment shall, until the contrary is proved, be deemed to be 1 month.

23. Time of payment of wages

Wages shall become due on the expiry of the last day of the wage period and shall be paid as soon as is practicable but in any case not later than 7 days thereafter.

32. Restriction on deductions from wages

(1) No deductions shall be made by an employer from the wages of his employee or from any other sum due to the employee otherwise than in accordance with this Ordinance.

(2) The following deductions may be made by an employer from the wages of his employee (a) deductions for absence from work: Provided that: 1. in the case of a contract of employment under which wages are calculated on a basis of time, no such deduction shall exceed a sum proportionate to the period of time during which the employee was absent from work; 2. no such deduction shall be made for the purpose of defraying or partly defraying the cost of holiday pay or sickness allowance which the employer has paid or may be or may become liable to pay to the employee; (Replaced 39 of 1973 s.4) (b) deductions for damage to or loss of goods, equipment or property belonging to or in the possession or control of the employer or expressly entrusted to an employee for custody, or for loss of money for which an employee is required to account, where such damage or loss is directly attributable to his neglect or default: Provided that: 1. the total amount recoverable by deduction in any one case shall not exceed the equivalent in value of the damage or loss suffered by the employer or $300, whichever is the less; 2. and the total of such deductions in any one wage! period shall not exceed one quarter of the wages payable to the employee in respect of that wage period;

(c) deductions in respect of meals supplied by the employer at: the request of the employee not exceeding the cost to the employer of such meals including expenses of production and service;

(d) deduction for accommodation provided by the employer for the employee or his family made in respect of the period such accommodation has been in the occupation of the employee or his family;

(e) deductions for the recovery of any advance or over paYment of wages made by the employer to the employee:

Provided that: 1. except with the approval in writing of the Commissioner, no such deductions shall be made by way of discount, interest or any similar charge in consideration of such advance or over-payment; and 2. the total of such deductions in any one wage period shall not exceed one quarter of the wages payable to the employee in respect of that wage period; (f) deductions, with the written consent of an employee, for the recovery of any loan made by the employer to the employee; (g) deductions made at the request in writing of the employee in respect of contributions to be paid by him through the employer for the purpose of any medical benefit scheme, superannuation scheme, retirement scheme or thrift scheme lawfully established for the benefit of the employee or his dependents; (Amended 41 of 1990 s. 17) (h) deductions which are required or authorized under any enactment to be made from the wages of an employee; (i) other deductions made at the request in writing of the employee and with the approval of the Commissioner, which may be signified in respect of any particular case in writing or in general by notice in the Gazette.

(3) Except with the approval in writing of the Commissioner, the total of all deductions, excluding deductions in respect of absence from work, made under this section from the wages of an employee in any one wage period shall not exceed one half of the wages payable to the employee in respect of the wage period.

(4) Nothing in this section shall be construed as preventing an employer from paying to an employee at any time before the due date the amount of wages and other remuneration proportionate to work done and adjusting any amount so paid against the total amount payable at the end of the wage period.

44. Information to persons entering employment

(1) Every employer shall inform each person in detail before such person enters his employment, in a manner intelligible to such person, of the conditions with regard to (a) the wages and the wage period; (b) where Part IIA applies to such person, the end of year payment or proportion of the end of year payment and the payment period; and (c) the length of notice required to terminate the proposed contract of employment

(2) Where the contract of employment is not in writing, upon receipt, before such employment is entered into, of a written request therefor from such person the employer shall

ACY 2151 BUSINESS LAW : LECTURED BY TERMAN WONG, K.N.(黃覺岸; 筆名: 王岸然,) TEL: 2609-7843 18 forthwith deliver to him a notice in writing containing such conditions. (Amended 41 of 1990 s. 19) (3) Where the contract of employment is in writing, the employer shall provide such person with a copy of the contract immediately after it is signed or immediately after the procedure to validate the contract is completed where such procedure is required. (Added 41 of 1990 s. 19)

45. Information to employees

(1) Every employer shall inform his employee, in a manner intelligible to the employee

(a) whenever any change takes place in the conditions referred to in section 44 or the conditions in force at any time, of such change; (b) at the time of each payment to him of his wages, in so far as such particulars may be subject to change, of the particulars of his wages for the wage period concerned.

(2) Where there is no written amendment to a contract of employment, upon receipt of a written request from his employee the employer shall deliver to him. (Amended 41 of 1990 s. 20)

(a) where the request relates to changes in the conditions referred to in subsection (1) (a), forthwith; or (b) where it relates to the particulars referred to in subsection (1)(b), at the time of the payment to him of his wages for the wage period concerned, a notice in writing containing such changes in conditions or particulars, as the case may be.

(3) Where there is any written amendment made to a contract of employment, the employer shall provide his employee with a copy of the written amendment immediately after the amendment is reduced to writing or immediately after the procedure to validate the amendment is completed where such procedure is required. (Added 41 of 1990 s. 20)

46. Details of conditions and particulars of wages

(1) The conditions referred to in sections 44 and 45 shall include the rate of wages, the overtime rate and any allowances, whether calculated by the piece, job, hour, day, week or otherwise, of the person or employee concerned.

(2) The particular; referred to in section 45 shall include *

(a) particulars of the amount earned, including overtime ean~ing (if any), by the employee; and (b) particulars of any deductions made from the wages of the employee and the

ACY 2151 BUSINESS LAW : LECTURED BY TERMAN WONG, K.N.(黃覺岸; 筆名: 王岸然,) TEL: 2609-7843 19 reasons therefor.

63B. Offences relating to sections 32 and 72(1)(a), (b) and (c)

(1) Any person who contravenes section 32 or fails to comply with a requirement made by an officer under section 72(1)(a), (b), or (c) commits an offence.

(2) Any person who willfully or recklessly gives information which is false in a material particular or withholds information as to any of the matters in respect of which information is required to be given under section 72(1 )(b) or (c) commits an offence.

(3) Any person who commits an offence under this section is liable to a fine of $100,000 and to imprisonment for 1 year..

63C. Offences relating to time and payment of wages

Any employer who willfully and without reasonable excuse contravenes section 23, 24 or 25 commits an offence and is liable to a fine of $200,000 and to imprisonment for 1 year.

(Added 31 of 1992 s. 4)

Tutorial: Employment

Mei Luo Co Ltd advertised for an electronic data processing executive to service, maintain and update its computer system. Judy answered the advertisement and was appointed in September 1986.

Judy's contract with Mei Luo was very flexible. She was not required to work any fixed number of hours per week nor to keep any of office hours, so long as she ensured that the computer s, system , operated as it should and was free from any bugs. The company provided Judy with an office which she was to share with two other workers tending to the computer system. In consideration of the foregoing, Judy would be paid $1,000 per hour. It was agreed that Judy would be paid at the end of each month subject to her presenting an invoice for the number of hours worked during the month in question.

Judy spent time each week in the office assigned to her but did thc bulk of her work at home, especially when she had to rite and test new programmers. When she worked ,at home. she

ACY 2151 BUSINESS LAW : LECTURED BY TERMAN WONG, K.N.(黃覺岸; 筆名: 王岸然,) TEL: 2609-7843 20 used her own computer and other equipment.

In March 1997, 'because of financial problems, Mei Luo Co, Ltd terminated Judy’s appointment with immediate effect with out any compensation.

Judy claims that she is an employee entitled to the benefits and protection provided by tile Employment Ordinance. Mei Luo Co Ltd disagrees.

Advise Judy

ACY 2151 BUSINESS LAW : LECTURED BY TERMAN WONG, K.N.(黃覺岸; 筆名: 王岸然,) TEL: 2609-7843