The Initial Statutory Minimum Wage Rate
It is set at $28 per hour and the law will
come into operation on 1 May 2011.
Place of Employment
In relation to an employee, means any
place at which the employee is, in accordance with the contract of employment
or with the agreement or at the direction of the employer, in attendance for
the purpose of doing work or receiving training.
Hours worked
The hours worked by employee in a wage
period include any time during which the employee is, in accordance with the
contract of employment or with the agreement or at the direction of the
employer –
(a) in attendance at a place of
employment, irrespective of whether he or she is provided with work or training
at that time; or
(b) traveling in connection with
his or her employment excluding traveling (in either direction) between his or
her place of residence and his or her place of employment other than a place of
employment that is outside Hong Kong and is not his or her usual place of
employment.
Calculating the Hourly Wage
l Only counting pay for working
hours. Pay given to an employee for
non-working hours must not be counted, e.g. holiday pay, annual leave pay,
sickness allowance, maternity leave pay.
l Definition of “Wages” should be
in accordance with Employment Ordinance:
According to Employment Ordinance, “wages”
means all remuneration, earnings, allowances, tips and service charges, however
designated or calculated, payable to an employee in respect of work done or
work to be done. Allowances including
traveling allowances, attendance allowances, commission and overtime pay are
within the definition of wages. However,
it does not include:
- the value of any accommodation, education, food, fuel, water, light or
medical care provided by the employer (Therefore, meals offered by
employers will not be counted as part of the wages);
- employer’s
contribution to any retirement scheme;
- commission,
attendance allowance or attendance bonus which is of a gratuitous nature
or is payable only at the discretion of the employer;
- non-recurrent
traveling allowance or the value of any traveling concession or traveling
allowance for actual expenses incurred by the employment;
- any sum
payable to the employee to defray special expenses incurred by him by the
nature of his employment;
- end of
year payment, or annual bonus which is of a gratuitous nature or is
payable only at the discretion of the employer;
- gratuity
payable on completion or termination of a contract of employment.
l If the employer and employee
agree that rest days are to be paid, please exclude the
pay given to the employee for the rest days in calculation of the minimum wage.
l The hours worked by an employee
in a wage period must be taken not to include any shift-break during
which the employee is not in attendance at place of employment.
l The hours worked by an employee
in a wage period must be taken not to include any period allowed by the
employer for a meal except to the extent (if any) during that period
that the employee is doing work in accordance with the contract of employment
or with the agreement or at the direction of the employer
l If the employee is paid during the meal hours but does not need to be in attendance at place of
employment, the amount of money paid during the meal hours should be deducted
from the wage and the meal hours should be excluded from the working hours when
calculating the minimum hourly wage.
Wage Period
The wage period of an employee is the period in respect of which
wages are payable to the employee for work done or to be done under his or her
contract of employment. If no agreement
on the wage period between the employee and the employer is made, that period
must be taken to be one month (Beware that the hourly wage rate of the employee
will then vary with the number of working days from month to month).
An advance or over-payment of wages made to an employee in any wage
period must not be counted as part of the wages payable in respect of that
period.
A payment of arrears of wages in respect of an earlier wage period
made to an employee in any wage period must not be counted as part of the wages
payable in respect of the wage period in which it is paid.
Any commission (e.g. jackpot provided that it is used to
being counted as part of the wage in your company) paid, with the prior
agreement of the employee, at any time after the first 7 days of a wage period
but before the end of the 7th day immediately after that period must
be counted as part of the wages payable in respect of that period irrespective
of when the work is done or the commission is otherwise payable under the
contract of employment.
Working overtime
Example: A shop assistant works in the shop from 9:00 a.m. to 1:00 p.m. and from 2:00
p.m. to 6:00 p.m. in
accordance with the contract of employment. He also works overtime from 6:00 p.m. to 7:00 p.m. with the agreement or at the direction of the employer. The time from 9:00 a.m. to 1:00 p.m. and from 2:00
p.m. to 7:00 p.m. is
hours worked for the purpose of computing his minimum wage.
* If the working hours are not indicated in the contract, the hourly
wage will be counted in accordance with the records of the time sheet.
Early Leave
Example: The contractual working hours of an employee run from 9 a.m. to 6 p.m. and on a day the employer directed the employee to be off duty from 4 p.m. to 6 p.m. The time from 4 p.m. to 6
p.m. does not fall within the working hours defined in the this Ordinance but
if the employer and the employee, by virtue of the contract of employment or
their agreement, regard this period as hours worked by the employee, then it is
included in the computation of statutory minimum wage.
Protection for employees
Employers and employees are free to negotiate and agree on the terms
and conditions of employment either orally or in writing. A provision of a contract of employment
(whether the contract was entered into before, on or after the commencement of
this section) that purports to extinguish or reduce any right, benefit, or
protection conferred on the employee by the Employment Ordinance or the Minimum
Wage Ordinance is void.
Record Keeping
The law requires employers to keep records of hours worked for
employees paid with monthly wage below $11,500 for a period of one year. However, it should be also noted that employees
have the right to make a claim for the unpaid wages within six years under the
retrospective effect. You may consider
keeping the records for a period of six years.
MPF
Wages include the employee’s portion of MPF contributions excluding
the employer’s portion of MPF contributions.
For more details and examples, please call Legislator Tommy Cheung’s
office at 2397 2688.
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