0003230
G.F. 323
CONFIDENTIAL
2
the
contract there must be an express agreement, not necessarily in writing, between both parties to the contrary effect which is capable of proof and is not merely implied or in accordance with custom. Alternatively, to overcome the presumption, it is necessary for an employer to establish, under section 9, that employment was not continuous according to conditions set out in the First Schedule. This schedule seeks to define the essential elements of continuous employment without becoming involved in issues involving the bases of calculating wages. Many workers, especially in industry, are engaged on piece rates or daily-rated wages although they are rarely paid daily. They may, and do, work continuously on these terms for many years. They are, in effect, regular employees and, if the occasion involving termination of their services should arise, it is unjust that, merely because of the basis on which wage rates are calculated, they should be treated no better than casual or daily-paid workers. The Labour Department has known many cases of employers sacking workers of long service without notice. These give rise to understandably bitter and heated disputes. The underlying concepts of continuous employment involve a minimum period of employment of four weeks and a minimum amount of work, approximately half the time, during that period. Precise directions are given for determining the exact number of hours a day, days a week, and weeks a month which qualify for continuous employment. Provision is made to cover sickness, involuntarily absenco, legal or customary holidays, strikes and lock-outs, and transfers of ownership in order to determine if the minimum qualifications have been satisfied. Section 5 (2) prescribes the status of contracts, other than written contracts, in excess of one month but these are subject to the over- riding provision of section 5 (3) which deals with contracts for a period of six months or more. These continue to be regarded as monthly contracts renewable monthly in order that Hong Kong can remain a party to the Convention concerning the Regulation of Written Contracts of Employment of Indigenous Workers, number 64, of the International Labour Organization. Otherwise, all contracts for a period of six months or more would have to be in writing. Section 6 requires that, when terminating a contract, either orally or in writing, the length of notice for a contract deemed to be a monthly contract renewable monthly shall be not less than 30 days. For any other types of contract, the length of notice shall be the period agreed provided that, where continuous employment has been established, the length of notice must not be less than seven days. Section 7 permits the payment of wages in lieu of the appropriate notice. Section 8 allows the waiving of a right to notice or payment in lieu of notice and the termination of a contract by either party for cause.
4.
The second major part of the bill deals with the protection of wages and incorporates into legislation many of the provisions of the Convention concerning the Protection of Wages, number 95, of the International Labour Organization, which are relevant to Hong Kong. Section 10 stipulates the period in respect of which wages are due in the lack of evidence to the contrary. Sections 11 to 13 prescribe the days when wages become due and when they must be paid in the normal course of events, on completion of a contract, or on termination of service. Sections 14 to 16 set out the conditions under which wages may be properly paid to an employee. These require payment in legal tender, restrict the extent to which remuneration may be in kind, and prohibit any conditions in a contract of service
CONFIDENTIAL