In Hong Kong, the primary piece of employment legislation is the Employment Ordinance (EO), which sets out the minimum statutory entitlements for the employees. The EO is applicable to all employees in Hong Kong, subject to limited exceptions. In addition, if an employee is employed under a continuous contract for four weeks or more, with at least 18 hours worked in each week, then he/she is entitled to additional protections under the EO. These include rest days, paid statutory holidays, paid annual leave, paid maternity leave, sickness allowance, and severance/long service payment. Further, an employee is entitled to protection against unreasonable termination if he/she has been continuously employed for at least 24 months.
The employment law system in Australia generally offers greater protection to employees than that of the Hong Kong system. The principal piece of employment legislation in Australia is the Fair Work Act 2009 (Cth) (FW Act) which applies to employees of corporations trading within Australia. The FW Act provides a framework of minimum employment conditions through the National Employment Standards. “Modern Awards” made by arbitral tribunals also contain minimum terms and conditions of employment for certain employees who are employed in defined industries and fall within the scope and classification provisions of a relevant award.
Under both employment law systems, any agreement which purports to extinguish or reduce any entitlement conferred on an employee by the relevant legislation is void. Therefore, employers in both jurisdictions should ensure that their employees’ terms of employment are consistent with the minimum entitlements set out under the relevant legislation.
We set out in the comparison table below the minimum statutory entitlements available for the employees in Hong Kong and Australia.
|Employment benefits/protection||Hong Kong||Australia|
- Minimum hourly rate: HKD 28 (AUD equivalent: $3.51).
- National minimum hourly rate: AUD $15.51 (HKD equivalent: $123.82).
|Maximum number of working hours|
- No maximum number of working hours.
- Full-time employees - 38 hours plus reasonable additional hours.
- Other employees - the lesser of 38 hours or the employee’s ordinary hours of work in a week.
- 12 statutory holidays or public holidays (i.e. every Sunday and 17 other days).
- An employee is entitled to be absent from work on a day or part-day that is a public holiday. An employee can reasonably refuse to work on a public holiday.
- 7 to 14 days per year depending on the length of continuous service.
- Permanent employees - 4 weeks
- Shift workers - 5 weeks
- Casual employees - none
- 2 paid sickness days for each completed month of employment under a continuous contract during the first 12 months of employment; and 4 paid sickness days thereafter, up to a maximum of 120 days.
- Becomes payable where an employee has accumulated sufficient number of paid sickness days and the sick leave taken is not less than four or more consecutive days.
- No carer’s leave.
- 10 days personal/carer’s leave per annum to be used by an employee if they are unable to attend work due to personal illness or injury or to care for a family or household member who is ill/injured or if an unexpected emergency affects the member.
- Personal/carer’s leave accumulates from year to year.
- Employees are also entitled to 2 days of paid compassionate leave to be used to spend time with a member of the employee's immediate family or household who has sustained a life-threatening illness or injury. It may also be used after the death of an employee’s immediate family member.
|Maternity leave / Parental leave|
- 10 weeks’ paid maternity leave if a female employee has been continuously employed for 40 weeks or more at the rate equal to four fifths of the employee’s average daily wages.
- No parental or paternity leave in Hong Kong.
- Referred to as parental leave in Australia because eligible male and female employees can access parental leave.
- Permanent employees and long term casual employees are entitled to 12 months unpaid parental leave after completing more than 12 months continuous service with an employer. Eligible employees can extend the period of unpaid parental leave by an additional 12 months.
- Long term casual employees are casual employees with 12 months continuous service who have performed regular and systematic work and have an expectation of ongoing employment.
- Australia has a government funded paid parental leave scheme which provides eligible primary carers who are responsible for the care of a newborn or adopted children with 18 weeks paid leave at the federal minimum wage - AUD $589.30 per week (HKD equivalent: $4,700 per week).
- Without notice during the first month of the probationary period.
- For the remainder of the probationary period, not less than 7 days notice.
- If no probationary period and there is an agreement as to the length of notice, the agreed notice should be not less than 7 days.
- If there is no agreement as to the length of notice, the notice period should not be less than 1 month.
- Either party may terminate immediately by making payment in lieu of notice
- The minimum period of notice will depend on the employee’s length of service with the employer, which ranges from 1 week notice for employees with less than a year of service to 4 weeks notice for an employee with more than 5 years of service.
- An employee is entitled to an additional week of notice if he/she is over 45 years of age with more than 2 years of continuous service.