Hong Kong – Labour Law – Grab N Go (Combo Meal Two).

As our Employment and Pensions practice continues with the video series “Labour Law – Grab n Go” to keep our clients updated on the latest developments and trends of Employment Law in Hong Kong, we include in this client alert our latest three episodes in one single document for our clients’ easy reference. 
 

Ma Ngai Cheung v Cobow Contracting & Engineering Company Limited – Labour Tribunal’s jurisdiction in cross-border employment
 

Helen Liao

 

The Labour Tribunal offers employers and employees a quick and cost effective forum to resolve their conflicts without going through formal court procedures. In the Ma Ngai Cheung case, the employee, who mainly performed his employment outside of Hong Kong, made a claim to the District Court for compensation of accrued rest days and reimbursement of various expenses. The employer applied to strike out the employee’s claim, as the Labour Tribunal should have exclusive jurisdiction over the claim. The employee argued that as the employment took place outside of Hong Kong, and the compensation did not arise from violation of the Employment Ordinance or employment contract. In determining the case, the Court considered if there is any breach of Employment Ordinance or contract, and came to the conclusion that the Labour Tribunal should not have the jurisdiction over such case, by considering the complexity of the case. Take away points are as follows:-

 

1. The Labour Tribunal should generally have jurisdiction over employment disputes, unless the case involves complexity of facts or laws (e.g. foreign laws involved) or mixed claims;
    

2. Employers shall seek for legal advice on pleaded causes of actions. The Court looks at the substance of the dispute rather than labels;
    

3. Jurisdictional issues should be dealt with at an early stage before substantial time and costs have been incurred.
    

Please click here to watch the video.

 

Working From Home – Data privacy tips

 

Vickie Leung
 

It has become very common for Hong Kong employers to adopt work from home arrangements (WFH) in response to COVID-19. In view of this, the Privacy Commissioner for Personal Data has issued guidance notes on protecting personal data under WFH arrangements. Both employer and employee should be careful of security and protection of personal data privacy. In particular, employers should take all steps to ensure data security, such as when information is used to facilitate WFH arrangements and when data is transferred to employees. Employers should also assess the risks on data security and employees’ data privacy; and formulate new policies, or review and update (if necessary) existing policies, on data transfer and remote access to corporate networks and data. Under WFH arrangement, employers may also provide electronic devices and Virtual Private Network (VPN) access to employees. Employers in such instance should ensure that the system is regularly updated, all work-related information are encrypted, and strong access controls have been set. Employers should also provide sufficient training and support to employees on data security. From employees’ perspective, they shall adhere to employers’ policies on data handling, avoid working in public places and using public Wi-Fi. For electronic communication, employees should avoid using personal email accounts for work purposes and transferring paper documents out of office, especially those containing personal data or restricted information.
 

Under WFH arrangement, it is important to make sure that:
 

1. Both employer and employee should be cautious about data security under WFH arrangement.
    

2. Employers should set out new or review and update current policies and provide appropriate staff training on data security.
    

3. Employees should adhere to policies set by employers and be cautious when working in public, using corporate devices and making electronic communication.
    

Please click here to watch the video.
 

Reimbursement for Maternity Leave Pay

 

Cynthia Chung

 

Beginning from 11 December 2020, statutory maternity leave under the Employment Ordinance has been extended from 10 weeks to 14 weeks. For maternity leave pay paid during the additional 4 weeks, employers can apply to the Reimbursement of Maternity Leave Pay Scheme for reimbursement, subject to a cap of HK$80,000 per employee. An application must meet the requirements that:
 

• The employee is entitled to be paid maternity leave pay under the Employment Ordinance;
   

• The employee has taken her 14 weeks of maternity leave, and the applicant has paid 14 weeks of maternity leave pay to the employee;
   

• The employee delivered her baby on or after 11 December 2020; and
   

• The additional 4 weeks’ of maternity leave pay already paid to the employee has not been / will not be covered or subsidised by other government funding.
   

To apply, employers can submit online applications through the Reimbursement Easy Portal at https://www.rmlps.gov.hk/. Applications submitted via email, fax, post, or in person are also possible.
 

Applications are made by completing an Employer Application Form and an Employee Declaration Form – both of which can be found on the online portal. Employers will also have to submit supporting documents, including payment proof of 14 weeks of maternity leave pay, proof of bank account for receiving reimbursement, the employer’s registration or identity document, and employee’s pregnancy proof. Applications should be submitted by the later of either:
 

• three months after the last day of the employee’s 14-week statutory maternity leave; or
   

• three months after the RMLP Scheme’s commencement date of 1 April 2021.
   

A Notification of Application Results will be issued to the applicant by email or post within 15 working days upon receipt of a complete application. Once the application is approved, the reimbursement will be paid to the applicant’s designated bank account specified in the Application Form.
 

Please click here to watch the video.