Wage rules still leave key issues unresolved

PUBLISHED : Tuesday, 29 March, 2011, 12:00am
UPDATED : Tuesday, 29 March, 2011, 12:00am

The government introduced guidelines for the imminent minimum wage law, but both labour and employers' groups said it left unresolved whether workers were to be paid for meal breaks and rest days.

Commissioner for Labour Cheuk Wing-hing said yesterday the 'Statutory Minimum Wage: Reference Guidelines for Employers and Employees' would assist employers and workers in understanding the practical application of the Minimum Wage Ordinance, which comes into effect on May 1.

But both unionists and employers' associations said the government should offer further clarification on the law, which sets a floor of HK$28 per hour.

The labour chief said neither the Minimum Wage Ordinance nor the Employment Ordinance prescribe that meal breaks and rest days should be paid.

'Whether they are with pay or otherwise are matters to be agreed between employers and employers,' Cheuk said.

If existing contracts were unclear, or if employers had genuine problems in shouldering the financial burden, Cheuk said employers should reach consensus with workers on lawful, sensible and reasonable grounds.

He said employers should not unilaterally alter the employment contracts of workers.

'Where feasible, employers should not reduce employees' existing remuneration and employment benefits upon the implementation of the statutory minimum wage.'

Unionist legislator Lee Cheuk-yan said the guideline appeared to favour employers.

'It is like teaching employers to cancel payment for meal breaks and rest days, as it wrote that employers can vary employment contracts with workers if there is any ambiguity or financial difficulties,' he said.

'My opinion is that it is telling employers how they can deprive workers legally. It is outrageous.'

Tam Leung-ying, organiser of the Neighbourhood and Workers Service Centre who has fought for meal break payments for labourers, said the 310,000 workers who could benefit from the minimum wage could hardly negotiate with employers.

'Most of these workers are of low education, low skills and they have little bargaining power. There is no way they can succeed in fighting for their own rights.'

Tam said the Employers Federation of Hong Kong, the city's biggest employer group, also told its members last week there were no requirements under the minimum wage law for workers to be paid for rest days and meal breaks.

'Whenever there is new legislation, employers will try every means to find loopholes and take advantages,' Tam said.

'The government should not leave the problem of meal breaks and rest days to workers and employers if it really wants to protect grass-roots labour,'

Simon Wong Ka-wo, president of the Federation of Restaurants and Related Trades, an employers' group, feared there would be many labour disputes over the issue.

'Since it is up to employers and employees to negotiate the payment, we really fear that there will be many arguments,' he said.

'We believe the government should be more specific on whether meal breaks and rest days should be included when calculating the minimum wage. And we even want the government to legislate on the matter.'

The Federation of Hong Kong Industries also said the guideline's failure to clarify the issue would strain employer-worker relations.

'And it is rather too late that the government only releases the guideline today with about 30 days to the implementation of the minimum wage,' the union said last night.

Cheuk added that the Labour Department was collaborating with industry-based Tripartite Committees and relevant stakeholders to formulate industry-specific guidelines, including those for estate management, cleaning services and the catering industry, to address their particular modes of operation and pay structures.

Questions and answers

Examples from the guidelines

Q: Should travelling time be included?

A: Yes ... if an employee usually works in Hong Kong and is asked by employer to go to a client's office outside the city. No ... if an employee is required to work in an office in Hong Kong and offices outside the city on a regular basis.

Q: Should on-call or standby time be included?

A: Yes ... if an employee while being on call is in attendance at a place of employment. No ... if the employee is not in attendance at a place of employment.