TNAG-0087-FCO40-123-Conditions-of-employment-for-Hong-Kong-Chinese-working-in-th-1969 — Page 16

4.

This is the ground covered in the draft reply to Mrs. Jeger which I now submit for the Minister's consideration, together with an additional point taken up in the last paragraph of the draft on which we have said we will consult Hong Kong.

5. I should mention, however, that my study of these papers has raised considerable doubts about the validity of Clauses 14(b) and (c) in the model contract should the Hong Kong Government be regarding these as mandatory clauses in their model form. I will not ask you to read the exchanges on this with Legal Advisers. The point is explained as follows :

(i) I.L.O. Convention No. 64 and the Hong Kong

legislation lay down that an employer is

(ii)

not liable for repatriation if the contract is terminated by, or in consequence of, the default of the worker.

"Default of the worker" includes walking out on the contract without due notice or payment in lieu and dismissal for misconduct; but does not include termination by the worker on due notice or payment in lieu.

(iii) But the contract provides :-

(iv)

Clause 14(c):

Clause 14(b):

that the employer is responsible for

repatriation on dismissal of the worker "for cause shown".

that the worker is

entitled to receive from the employer only a proportion of the cost of repatriation upon termination of the

contract by the worker with due notice or

payment in lieu (the pro-

portion being the period worked to the term of the contract).

the

It is clear from the terms of Clauses 9(a) and 14 of the contract that an employer is not liable for repatriation where a worker walks out on his contract without notice or payment in lieu. But the concept of "default" has not otherwise been imported into the model contract. In fact both (b) and (c) of Clause 14 appear to be inconsistent with the legislation; first modifies the law in favour of the employer, the latter in favour of the worker. They are also on the face of it inconsistent with each other, inasmuch as a worker dismissed for misconduct can demand that his employer repatriate him while one who gives due notice can only get a proportion of his repatriation expenses.

/ (v)