TNAG-0087-FCO40-123-Conditions-of-employment-for-Hong-Kong-Chinese-working-in-th-1969 — Page 22

Mr. Brown

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Contracts of service are merely types of contracts and are subject to the general principles which govern all contracts according to which the parties to a contract themselves make their own rules as to what shall and shall not bind them. But at times the legislation interferes with this freedom of contract for the partners protection and in their own interests.

In my opinion Section 5(2) is an instance of such interference.

2.

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The terms of the sub-section are clearly obligatory: they set out the particulars which every overseas contract, to which the Hong Kong Contracts for Overseas Employment Ordinances applies, must contain. Under section 10(1) the Commissioner, before attesting a contract must satisfy himself that it is in accordance with the requirements of the Ordinances, which include the requirements of section 5(2), but once he is so satisfied he is bound, in my view, by section 10(2) to attest the contract.

3.

With regard to other matters not specified in section 5(2), the Ordinance, as I read it, does not preclude their inclusion in the contracts,provided they are not contrary to the provisions of the sub-section. But the Commissioner cannot impose them on the parties: they must be consulted and agree to them. The broad principle of freedom of contract, would then come into play: these additional conditions of the contract would be valid and enforceable and the Commissioner could not, I think, refuse his attestation of the contract on the ground of their inclusion. It is assumed, of course, that these conditions would not be unreasonable or contrary to public policy.

As regards the second point raised by Mr. Carter in paragraph 3 of his minute of 7 March, 1968 it seems to me that if clause 9(a) were construed as being applicable to all cases of termination of contract, irrespective of the reasons for such termination, it would clash with clause 14. the two clauses should, if possible, be read in such a way as to avoid the inconsistency. I think that clause 9(a) was intended to apply, and does apply, to cases of termination of contract other than those for which specific provision is made in clause 14. Upon this view I would agree with Mr. Carter that the employer would have no responsibilities for the repatriation of the worker who walks out on his contract without giving the notice prescribed by clause 14(b). In such a case, the worker would, in my view, be in default and the case would fall within the ambit of section 5(2)(k) of the Ordinance. I would agree, however with Mr. Burn's Counsel that, if the worker does give the required notice, he could not be in default within the meaning of section 5(2)(k), and, it seems to me, that in this respect clause 14(b) is inconsistent with section 5(2)(k). This brings us to the difficult question whether the clause is invalid. As a general rule a person can enter into a brading contract to waive the benefits conferred upon him by law; in other words, can contract himself out of the law, unless it can be shown that such an agree.ent is in the circumstances of the particular case contrary to public policy, or unless statutory conditions have been imposed in such terms that they cannot be waived by agreement. The point is not an easy one; but if one takes the view, which I have done, that the terms of section (5(2) are obligatory it seems to me to follow that to suggest that a worker may renounce the right of being repatriated at the employer's expense is to defeat the terms of the sub-section and to oust its operation. On this view the clause would be invalid.

5.

I would add a word about clause 14(c) to which Mr. Carter has referred in paragraph 2 of his minute. Summary dismissal for cause shown at first sight implies that the worker is in default. In such a case the matter would also be governed by section 5(2)(k), with which the clause would be inconsistent, and consequently, invalid.

(Signed)

Francis Herchenroder

18.3.1968

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