Hong Kong – Review Of Employment Laws In 2020.

2020 Nian 1 Yue

reform proposals on the "Personal Data (Privacy) Regulations"

On January 20, 2020, the Legislative Council prepared the "Review of the Personal Data (Privacy) Ordinance" document prepared by the Constitutional and Mainland Affairs Bureau based on the recommendations made by the Office of the Privacy Commissioner for Personal Data (Privacy Commissioner) Have a debate. The document proposes six key directions for reforming the Personal Data (Privacy) Ordinance (Privacy Ordinance):
 

1. Establish a mandatory information leakage notification mechanism;
    

2. Strengthen personal data retention obligations;
    

3. Enhancing the law enforcement powers of the Privacy Commissioner;
    

4. Introduce direct regulation of data processors;
    

5. Revise and expand the definition of "personal data" in the Privacy Ordinance; and
    

6. Strengthen the regulation of improper disclosure of personal data belonging to other data subjects.
    

According to global trends and practices, the burden of complying with compliance obligations to protect personal data privacy in Hong Kong will obviously increase and will continue to be one of the most important compliance areas for all companies. In particular, for the first time in the history of the Privacy Ordinance, the reform of direct regulation of data processors has been implemented. This means that data processors in Hong Kong will need to plan ahead and review their existing practices in order to prepare for compliance. For more details on the proposed amendments to the Privacy Ordinance, please refer to our customer information dated April 21, 2020 .
 

2020 Nian 6 Yue

implementation of the implementation of anti-discrimination legislation

"2020-discrimination laws (Miscellaneous Amendments) Ordinance" ( "Discrimination Laws Amendment Ordinance" ) was 2020 years 6 Yue 19 Ri effect. The Ordinance proposes to amend four anti-discrimination laws in Hong Kong, namely, the Sex Discrimination Ordinance, the Disability Discrimination Ordinance, the Family Status Discrimination Ordinance and the Race Discrimination Ordinance. The "Discrimination Legislation Amendment Ordinance" fills the gaps in the existing legislation and allows a wider range of legal protections against discrimination and harassment:
 

Breastfeeding
 

• Explicit provisions have been introduced in the Sex Discrimination Ordinance to prohibit direct and indirect discrimination based on breastfeeding. The definition of "breastfeeding" includes the act of collecting milk and covers women who breastfeed any child (not just their own children).
   

• It should be noted that "the Sex Discrimination Ordinance" will be based on the provisions prohibiting harassment of breastfeeding 2021 Nian 6 Yue 19 Ri effect.
   

Harassment in the workplace
 

• New provisions have been added to the Sex Discrimination Ordinance, the Disability Discrimination Ordinance, and the Race Discrimination Ordinance to stipulate that a user of a place shall, in his workplace, make a payment to another user who also uses that place as his workplace. Harassment is illegal.
   

• Both the Disability Discrimination Ordinance and the Race Discrimination Ordinance have been amended to protect service providers from disability harassment and racial harassment by customers. The relevant amendments also cover local ships or aircraft outside Hong Kong. Disability harassment and racial harassment between provider and customer.
   

• Both the Disability Discrimination Ordinance and the Sex Discrimination Ordinance have been amended to protect club members or those who apply for membership from club management from harassment.
   

Scope of racial discrimination
 

• In the Race Discrimination Ordinance, references to "close relatives" are replaced by references to "associated persons" . It is illegal to discriminate against or harass a person based on the race of an associate's associate. "Associated persons" include the spouse, relatives, and caregivers of the person; another person who lives with the person on a real family basis; and another person who has a business, sports, or leisure relationship with the person.
   

• The meanings of "race" and "racial group" have been expanded to include the race, color, descent, ethnicity, or ethnicity that others believe to be attributable to a person, in order to provide protection against anyone who is deemed to be attributable to a person's race Direct and indirect racial discrimination and harassment.
   

Award damages
 

• In determining the damages awarded in a claim for indirect discrimination, according to the Sex Discrimination Ordinance, the Family Status Discrimination Ordinance and the Race Discrimination Ordinance, "without the intention of discriminating" can no longer be the respondent Defense.
   

The passage of the "Discrimination Legislation Amendment Ordinance" marks a major step forward in providing more comprehensive protection against discrimination and harassment. As the revised law will have a broader interpretation and expanded coverage of protection and legal liability, employers should review their current policies to ensure compliance with the relevant amendment requirements. Employees should be aware of what kind of relief or protection they can seek in the event of discrimination or harassment in the workplace. For more details, please refer to our customer information dated June 16, 2020 .
 

2020 Nian 6 Yue

amendments to "ORSO" were passed: to strengthen controls on retirement plans

"In 2020 the Occupational Retirement Schemes (Amendment) Ordinance" ( "revision of the Occupational Retirement Schemes Ordinance" ) was 2020 years 6 Yue 26 Ri effect. The Occupational Retirement Schemes Amendment Ordinance proposes to amend the Occupational Retirement Schemes Ordinance to prevent the "Occupational Retirement Schemes Ordinance" under the Mandatory Provident Fund Schemes Authority ( MPFA ) from being abused for non-employment purposes, and Improve the governance of occupational retirement plans.
 

Key revision

• New standard -Membership of the Occupational Retirement Schemes Ordinance plan must be limited to eligible persons, that is, employees (whether past or present), individuals transferred in business transactions, and beneficiaries of deceased members.
   

• Exempted schemes under the Occupational Retirement Schemes Ordinance -The Registrar can only issue exemption certificates for acceptable registered/approved offshore schemes. The criterion that the number of Hong Kong permanent identity card holders in the scheme members is less than 10% or 50 (whichever is less) has been abolished. In addition, a new reason for allowing the Registrar to withdraw the certificate of exemption has been added.
   

• Registered plans under the Occupational Retirement Schemes Ordinance -The Registrar is authorized to impose, amend or revoke conditions for registered plans. In addition, if there are other new reasons why the plan no longer meets the new standards, the Registrar has the right to cancel the registration of the plan.
   

• Transfer of real benefits -employers of registered plans or exempted plans are only allowed to accept benefits transferred from another plan if they meet certain conditions, in order to misuse the plan due to funds from unknown sources Or the risk of abuse is minimized.
   

The Occupational Retirement Schemes Amendment Ordinance allows the Occupational Retirement Schemes Ordinance to more truthfully reflect the original policy intention of the Occupational Retirement Schemes Ordinance that plans should be employment-oriented. The regulations of the Occupational Retirement Schemes Ordinance exempted plans are more relaxed than those registered under the Occupational Retirement Schemes Ordinance, so they are more likely to be misused as investment tools by non-employees. Regulation will help prevent an increase in the abuse of plans under the Occupational Retirement Schemes Ordinance.
 

For more information on key amendments, please refer to our customer information dated June 18, 2020 .
 

2020 Nian 7 Yue

new file under "Occupational Retirement Schemes Ordinance" and are required to submit the notification requirement

The Occupational Retirement Schemes Amendment Ordinance stipulates certain new documents and reporting requirements for registration and exempted plans under the Occupational Retirement Schemes Ordinance to ensure that the relevant plans are occupational retirement plans based on genuine employment relationships. 
 

New documents to be submitted 
 

• "Occupational Retirement Schemes Ordinance 'Registration Scheme – within one month after the end of the fiscal year, are required to submit a new form " registration scheme 's members annual declaration " to confirm: (a) whether the scheme is limited to the terms of the plan members Eligible persons; and (b) Whether the members of the plan are all eligible persons.
   

• " Occupational Retirement Schemes Ordinance" exempted schemes – within one month after the expiration (counted from the date of the certificate of exemption from the anniversary date or the date of meter) per 12-month period, or such longer period as the MPFA allowed Inside, a new form " Annual Report ( Annual Return and Written Statement ) " must be submitted .
   

 Notification of reporting events ( only applicable to registered plans under the Occupational Retirement Schemes Ordinance )
 

If the relevant employer or manager of a scheme registered under the Occupational Retirement Schemes Ordinance is aware of any "reportable incidents" that occur on or after June 26, 2020, they must give written notice to the MPFA within 7 working days. List the details of the incident and keep a record of the details. 
 

Employers/administrators should review the terms of existing Occupational Retirement Plans Ordinance (including trust deeds or insurance policies) to ensure compliance with the new requirements. 
 

For more information about the new documents and notification requirements, please refer to our customer information dated September 23, 2020 .
 

2020 Nian 7 Yue

increase statutory maternity benefits

2020 July 9, "2020 Employment (Amendment) Ordinance" ( "Employment Amendment Ordinance" ) passed in the Legislative Council, and will be 2020 on 12 Yue 11 Ri come into effect. The Employment Amendment Ordinance proposes to amend the Employment Ordinance to extend the statutory maternity leave period from 10 weeks to 14 weeks, and make technical amendments to straighten out the current statutory maternity leave system.
 

Key revision
 

• The legal maternity leave period was extended to 14 weeks .
   

• In order to maintain the existing statutory maternity pay maternity leave pay rate, calculated on an additional four weeks of maternity leave to be paid to each employee 8 million Hong Kong dollars for the upper limit .
   

• In the revised definition of " miscarriage " , the pregnancy period was shortened to 24 weeks .
   

• Female employees if they can show by a person trained (ie a registered medical practitioner, registered Chinese medicine practitioner, registered midwife or registered nurse) issued a certificate to the clinic , it can serve as proof entitled to sickness allowance.

•  

• Eligible male employees can choose to take paternity leave, which starts 4 weeks before the expected date of giving birth to their children and ends at the expiration of 14 weeks from the date of actual birth of their children .
   

Employers should make corresponding adjustments to meet the needs of their employees and ensure compliance with the revised Employment Ordinance. Employers must bear in mind that apart from the above changes, other maternity protection provisions under the Employment Ordinance continue to be effective.
 

For more details about each amendment, please refer to our customer information dated July 10, 2020 .
 

2020 Nian 9 Yue

rainbow Games extends far?

In 2020, two more cases will be filed with the court to seek a ruling on the issue of overseas same-sex marriage. In one case, the applicant applied for judicial review of the government’s decision to refuse to recognize overseas same-sex marriages in respect of probate, inheritance and intestate succession. In another case, the applicant sought the court to recognize overseas same-sex marriages in Hong Kong. marriage. The Court of First Instance handed down judgments on two cases on September 18, 2020.
 

A.         Inheritance rights
 

Wu Hanlin v. Secretary of Justice
 

Controversy : Is it against the Basic Law to exclude spouses in overseas same-sex marriages from the legal rights and benefits that can be enjoyed under the Intestate Estates Ordinance and the Property Inheritance (Supply for Survivors and Dependants) Ordinance , Constitutes illegal discrimination based on sexual orientation.
 

Ruling: The court ruled that the applicant in this case won the case and held that under the Intestate’s Estates Ordinance and the Property Inheritance (Supply for Survivors and Dependants) Ordinance, the types of eligible beneficiaries for which the deceased is legally liable to support are not limited to Husbands and wives in valid marriages. In terms of the Intestate Estates Ordinance and the Property Inheritance (Supply for Survivors and Dependants) Ordinance, heterosexual married couples are comparable to same-sex married couples. In addition, if it refers to the refusal to allow same-sex couples to enjoy the benefits under the Intestate’s Estates Ordinance and the Property Inheritance (Supply for Survivors and Dependants) Ordinance, it will promote the traditional marriage system, encourage heterosexual marriages, or maintain the benefits. The continuity, consistency, and feasibility of the Hong Kong laws implemented through the marriage system recognized by the Basic Law are illogical. Therefore, the court considered that the differential treatment involved in the case lacked justification and approved the "valid marriage", "husband" and "husband" and Use words such as "wife" to make declarations and remedial explanations.
 

B.         The right to marry legally in Hong Kong
 

Cham Zijie v. Secretary of Justice
 

The applicant sought a court declaration that Hong Kong law does not recognize overseas same-sex marriages, which constitutes illegal discrimination based on sexual orientation and therefore violates the relevant provisions of the Hong Kong Bill of Rights Ordinance and the Basic Law.
 

The court rejected the application and held that the applicant's use of the four-step rationale verification criterion to establish his legal arguments was fundamentally wrong, and therefore his application for a general declaration by the court failed to receive support. In order for the appeal to be straightforward, the court must determine whether there is a difference in treatment based on a prohibited reason, and only if it can be proved that there is a difference in treatment, the court will then examine whether the differential treatment is justified. Therefore, the question of whether there is illegal discrimination depends on the specific background and facts, and cannot be handled in a vacuum. The applicant tried to obtain equal recognition of overseas same-sex marriage with overseas heterosexual marriage or local heterosexual marriage without taking into account the subject matter under consideration and its background. It was too ambitious to obtain support. 
 

It is unknown at this stage whether the applicant will appeal the decision of the Court of First Instance. In any case, it seems likely that more cases will be raised in the future, seeking to challenge a decision based on a certain policy or statutory provision, and triggering differential treatment based on sexual orientation constitutes a violation of the constitutional rights of equality for everyone. As for how far the rainbow movement can extend, it remains to be seen.
 

For more details about the above cases, please refer to our customer information dated September 21, 2020 .
 

2020 Nian 10 Yue

Wait a minute, I just quit … whether employees? 

In situations involving an employment relationship, the words and deeds of employers and employees under a moment of excitement often do not have the true meaning of their words and deeds. This happened in the recent case of Lin Qianyi suing Liang Jingwei for operating Liang Jingwei Law Firm . The case involved the employer, after literally weighing the words and actions made by his employees impulsively in anger, and concluded that his employees had resigned.
 

Case background
 

During the probation period, the employee applied for an unpaid leave on the next day to take his mother to see a doctor. The employer refused to approve the holiday application and notified the employee via a WhatsApp message. In the next message, the employer stated that he is considering whether the employee is absent from work without reason. If so, she must leave immediately.
 

The employee used WhatsApp to ask the employer whether she was treated as an unexcused absence from work, so that she had to leave immediately. She also said that she would return to work in the afternoon, but "it doesn't matter anymore." She only needs to go back to pack up her personal belongings and collect her final paycheck ( employee information ). The employee returned to the office at 2 pm that day, but was informed that the employer was not in the office. The employee was later asked to pack up personal belongings and leave, but was not given the opportunity to seek clarification.
 

The employee has not returned to work since then. The employee later received his termination payment, but a sum equivalent to 7 days' notice in lieu of notice was deducted ( deduction ).
 

The Minor Employment Claims Arbitration Board ( Arbitration Board ) rejected the employee's claim on the grounds that she had terminated her employment by resigning. Therefore, the employer has the right to make deductions.
 

Decision of the Court of First Instance
 

The employee appealed to the Court of First Instance. The Court of First Instance believes that the arbitration office should not only consider the words used in employee messages, but also consider the overall situation in the WhatsApp messages exchanged between employers and employees, and whether the messages indicate resignation and termination of employment Clear will. The Court of First Instance ruled that the employee felt aggrieved, and her messages and statements were made out of impulse and in anger. The employee did not resign, she was only told to leave, which actually meant she was fired.
 

Key summary
 

Employers and employees uttered fierce words in anger and emotion due to impulsiveness. It is inevitable that people doubt whether the two parties really meant what they said. Therefore, when an employer receives a notice of termination of employment from an employee in anger, it should take some time to determine whether the employee really intends to terminate the employment before accepting the notice on the surface. If the employer simply accepts the employee’s claimed resignation without confirmation, and treats the employment as terminated, the employer may fall into the law.
 

For more details about this case, please refer to our customer information dated October 14, 2020 .
 

2020 Nian 11 Yue

Long Or Short? The Court of Final Appeal finally answered this controversial question

In the recent judgment of Liang Guoxiong ( also known as "Chang Mao" ) v. Director of Correctional Services , the Court of Final Appeal ruled that Liang Guoxiong 's appeal against the Director of Correctional Services ( Director ) was successful. After being convicted and sentenced to imprisonment, the appellant Liang Guoxiong had to have his hair cut short while serving his sentence in the Lai Chi Kok Reception Centre. Liang Guoxiong applied for judicial review of the decision on the grounds that the decision constituted sex discrimination and violated the Sex Discrimination Ordinance, and questioned that he received worse treatment than female prisoners, because female prisoners have more freedom of choice. Without his consent, his hair should not be cut shorter than when he entered the institution.
 

Liang Guoxiong was ruled by the Court of First Instance that the judicial review was successful, but was later ruled to lose the case in the Court of Appeal. Liang Guoxiong then appealed to the Court of Final Appeal. The Court of Final Appeal issued a judgment on November 27, 2020, ruling that Liang Guoxiong's appeal was successful. 
 

The point of contention in this case is whether to give poor treatment to male prisoners including Liang Guoxiong. In the hearing of the Court of Final Appeal, the Director explained that the differential treatment was formulated with reference to the policy of ensuring prison discipline, which requires uniformity and consistency in the appearance of prisoners to a reasonable degree. Differential treatment was then interpreted as reflecting the established appearance standards of men and women in society.
 

The Court of Final Appeal believes that it is necessary to prove that the differential treatment is logically and reasonably related to the related objectives, policies, or justifications. Only when such a connection is proved can it be possible to determine whether there is a poor treatment. The Court of Final Appeal criticized the Director’s citing evidence for failing to prove any actual connection between the length of the prisoners’ hair and the Director’s stated risk of threats to the personal rights of prisoners in custody, nor could it explain why there should be differences between male and female prisoners Treatment.
 

In addition, with regard to the argument that there are established styling standards for hair length, the Court of Final Appeal held that there must be some factual basis to support what is claimed to be a custom or established standard. The burden of proof rests with the director, who must prove the established standards he seeks to rely on, but the evidence has never established that concept. Therefore, the Court of Final Appeal held that there is no need to deal with the Director’s claim that whether the society’s established standards for men’s and women’s hair length involve gender stereotypes, although the court noted that in general, if gender stereotypes have occurred, they will be regarded as constituted Discriminatory behavior. The Court of Final Appeal believes that this argument can have many nuanced arguments, and it is not without difficulty in concept and practical application.
 

comment
 

The judgment of the Court of Final Appeal is consistent with the Judiciary's determination to implement the Sex Discrimination Ordinance as a social law to protect the rights of citizens. At the same time, this case reminds us of the consistent legal principle that "the person making the claim must prove the claim ." In this case, the director’s argument is based on the premise that society has established standards for the length of male and female hair. The Director also argued in the Court of First Instance that male prisoners have a higher security risk than female prisoners. However, the Director was unable to fulfill the burden of proof required to establish any of the above arguments. If the evidence cited by the Director is sufficient to establish the established standards of appearance, or if male prisoners do have a higher real risk, one cannot help but think that there may be different rulings.
 

For more details about the above cases, please refer to our customer information dated November 30, 2020 .
 

Outlook for 2021

Proposed amendments to the Privacy Ordinance

The Constitutional and Mainland Affairs Bureau and the Privacy Commissioner have indicated that they are eager to advance the reform plan. On November 4, 2020, the Constitutional and Mainland Affairs Bureau stated that the government’s goal is to complete the drafting of the amendment to the Privacy Ordinance by the end of this year.
 

Employers should pay close attention to the development of legislation to ensure compliance with relevant legal requirements when new amendments take effect.
 

minimum wage

According to the Minimum Wage Ordinance, the Minimum Wage Committee ( committee ) must report to the government at least once every two years the committee’s recommendations on the prescribed hourly minimum wage. The current minimum wage is HK$37.5 per hour, and the next review of the statutory minimum wage will not be later than 2021.
 

However, under the new crown pneumonia epidemic, the current economic situation is not clear. The chairman of the committee stated in a press conference held on October 13, 2020 that the committee cannot guarantee that the level of the legal minimum wage will increase, and also denied the annual Recommendations for review.

The Bank will continue to monitor the development of the situation and provide the latest information on any changes in this regard.
 

Cancel the MPF hedging mechanism

In the 2018 policy address, the Chief Executive recommended the abolition of the Mandatory Provident Fund ( MPF ) hedging mechanism. The goal is to obtain relevant legislative amendments passed by the Legislative Council by 2022, with a view to abolishing the MPF hedging mechanism in the next two years. .
 

In response to media enquiries recently, the Labour Department stated that since the government needs more time to study relevant issues and formulate a simplified implementation plan, the government will not submit a draft amendment to the Legislative Council this year. After the release of the 2020 policy address, the government promised to submit an amendment bill to the Legislative Council before the end of next year to abolish the MPF hedging mechanism, and stated that some of the recommendations have been completed. The legislative process is expected to be completed by the end of July 2022.
 

Employers should pay close attention to further developments in this area and make appropriate plans to mitigate the possible impact of any future amendments.
 

Statutory holiday

According to the Employment Ordinance, all employees, regardless of their length of service, are entitled to 12 statutory holidays. At a recent meeting of the Labour Advisory Board, the Government proposed to add one more statutory holiday every two years until the total number of statutory holidays is the same as the total number of public holidays. The government’s goal is to implement the first new statutory holiday in 2022, with a view to aligning the number of statutory holidays with the number of public holidays in 2030.
 

The government will further discuss the proposals with representatives of both employers and employees, and then consult the Legislative Council. The goal is to enact legislation in 2021. The Bank will provide updated information on any developments in this matter.