Government Bill gives employees right of reinstatement
A new bill introduced into the Legislative Council this earlier year lays down new rights for employees who are illegally dismissed.
The Employment (Amendment) Bill 2017 was introduced into the Legislative Council in May 2017. Notable among the Bill’s proposed changes is a new power for the Labour Tribunal to reinstate employees who have been unreasonably or unlawfully dismissed without necessarily obtaining the consent of the employer. This represents a departure from existing law, in which both the employer and the employee must agree on reinstatement. If the bill is passed, the Tribunal will be able to order reinstatement if the employee wishes and if it is practicable to do so.
The proposed amendment also stipulates a maximum fine of HKD 72,500 for employers who fail to reinstate employees when ordered to do so. This fine is in addition to any other monetary remedy which the employer may have to pay as a result of the Tribunal.
The potential for re-instatement has raised concerns about tensions in the workplace, especially if re-instatement is unilateral. According to data gathered by the Legislative Council Secretariat in 2012, there were only 3 instances prior to 2012 where bilateral re-instatement took place—suggesting that both employers and employees are reluctant to return to a status quo after a dispute has gone to the Labour Tribunal.
Government plans working hours protection for low income workers
The Hong Kong Executive Council has announced its intention to regulate the working hours of employees earning less that HKD 11,000 per month by putting forward an amendment bill in the Legislative Council in 2018.
If the measure passes, employers must provide low-income employees with written contracts stipulating working hours. Overtime pay will also become mandatory if an employee works over their stated hours. Estimates by Baker McKenzie suggested that some 550,000 workers across Hong Kong stand to benefit from the proposals.
The proposal has already drawn criticism from pro-workers groups for potentially limiting the number of hours that can be worked by employees on minimum wage, while business owners have criticised the plans for undermining business flexibility.
Amendment to employment contracts valid only with exchange between parties
The Court of First instance has reaffirmed the legal principle that something of value (consideration) must be given by both parties to validate an amendment to an employment.
In the recent case of Wu Kit Man v Dragonway Group Holdings, the court held that an amendment to an employment contract, granting a bonus of HKD 350,000 was invalid on the grounds that the employee had not promised anything in return for the additional promise of the employer. This case highlights the dangers of unilateral changes to contracts and reminds us that in order for an amendment to a contract to be valid, the employee must promise to give something extra to the employer—for example, taking on extra responsibilities or achieving certain targets.
Paul Arkwright
Publisher
