The current law
Under the Employment Ordinance, there is no general statutory provision for standard working hours in Hong Kong. Employers and employees are free to negotiate the terms and conditions of employment in relation to working hours as well as overtime work arrangements (which can be paid or unpaid, although if the employment contract provides for overtime pay, such pay is included in the calculation of various employee’s entitlements and is protected by the Employment Ordinance against unlawful deductions).
There are however specific regulations under the Employment Ordinance to regulate the working hours of children aged under 15 and also young persons aged between 15 and 17 who are working in industrial undertakings. Further, some types of work are subject to working hours regulations, such as security personnel, franchised bus captains and green minibus drivers.
In the 2010 – 2011 Policy Address, the then Chief Executive announced that with the enactment of the Minimum Wage Ordinance, the government would start a policy study on standard working hours (the “Study”). The Study was completed in June 2012 and a report was released on 26 November 2012.
Most recently, at the meeting of 17 October 2012, some Legislative Council members moved the motion “Legislating for the regulation of working hours” and urged the Government to introduce a bill on the regulation of working hours within the 2012 – 2013 legislative session. The motion was not carried at the meeting. The administration explained that introducing standard working hours before a consensus had been reached may seriously undermine labour relations and it was too early to discuss any draft bill on the regulation of working hours.
Pros and cons of regulating working hours
Regulation of working hours is a complex subject involving a myriad of social-economical issues. Whilst labour unions are concerned about the long working hours faced by many employees in Hong Kong, employers on the other hand are worried (understandably) that implementation of standard working hours will undermine flexibility of business and increase operational costs, especially for small-to-medium enterprises which are still adapting to the changes introduced by the Minimum Wage Ordinance. Accordingly, as has been revealed by the Study, it is not possible at this stage to ascertain whether regulation of working hours will be beneficial to Hong Kong as a whole and it is essential that the public is aware of its implications.
Key drafting considerations
Even when an agreement in favour of legislating for standard working hours has been reached, the design of a working hours regime that fits the needs of Hong Kong will still require further examination of many issues, including for example:
Definition of working hours
With the advancement of technology, employees may often be able to access work emails even when they have left office, making it difficult to ascertain what should be considered “working hours”. Specifically, should “on-call” time or any time at which an employee is at the disposal of the employer be counted as working hours? How about meal breaks and rest breaks?
The approach to regulating working hours
Should the regime adopt limits on standard working hours (e.g. 8 hours a day) or introduce a cap on the maximum working hours instead? How should the thresholds be set (i.e. weekly or daily limit)?
It is important for the effective provision of certain services that exemptions from the working hours limits are included in the regime. But what are the criteria for exemption? Should exemption be based on occupation or job responsibility, or salary levels?
The way forward
Given the highly controversial nature of standard working hours, it may still take some time before our community will reach consensus as to how the issue of long working hours should be addressed. Hong Kong will be looking for an effective working hours policy that will balance the interests of both employers and employees.