June has been a busy month for employment updates in Hong Kong. Long awaited amendments to Hong Kong’s discrimination have taken effect from 19 June, with changes to maternity leave expected to pass soon. Measures to ensure ORSO schemes are genuinely employment-based will kick in on 26 June 2020. Finally, the applications for the first tranche of the Government’s Employment Support Scheme (ESS) have now closed.

Changes to Discrimination Laws from 19 June 2020

The Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020 (the Ordinance) was gazetted on 19 June 2020 with the effect of amending the four anti-discrimination ordinances of Hong Kong, namely the Sex Discrimination Ordinance (SDO), the Disability Discrimination Ordinance (DDO), the Family Status Discrimination Ordinance (FSDO) and the Race Discrimination Ordinance (RDO). This takes forward the recommendations from the Equal Opportunities Commission Report on the Discrimination Law Review (see our previous bulletin).

The Ordinance implements the following amendments from 19 June 2020:

  • providing protection from sexual, racial and disability harassment in common workplaces where there is no employment relationship (e.g. consignment workers, volunteers and interns) under the SDO, RDO and DDO;
  • providing protection from racial and disability harassment where customers harass service providers under the RDO and DDO;
  • introducing protection from direct and indirect racial discrimination and racial harassment by imputation under the RDO;
  • protecting an associate of a person from direct racial discrimination and racial harassment under the RDO;
  • providing protection from sexual and disability harassment for members and prospective members of clubs by the management of the clubs; and
  • repealing requirements of an intention to discriminate as a pre-condition to awarding damages for acts of indirect discrimination under the SDO, FSDO and RDO.

Changes to breastfeeding provisions come into force on 19 June 2021. These provide protection from direct and indirect discrimination, as well as victimisation for breastfeeding women in relation to employment, the provision of services and facilities and education.

The Equal Opportunities Commission will publish further guidance to help relevant stakeholders understand the effect of the new provisions. Employers should monitor the changes and update any internal policies to ensure compliance with the law.

Amendments to maternity leave proposed

The Employment (Amendment) Bill 2019 (see our previous bulletin) will resume its Second Reading debate at the meeting of the Legislative Council on 24 June 2020.

The key proposed amendments include:

  • extending the statutory maternity leave under the Employment Ordinance from 10 weeks to 14 weeks;
  • amending the definition of ‘miscarriage’; and
  • entitling employees to sickness allowance that are able to produce a certificate of attendance in respect of a pregnancy-related medical examination.

The Government had previously announced that the laws were likely to operate from late 2021 however, employer’s should monitor progress of the changes and consider how such changes, if passed would align with their current practices and policies.

Occupational Retirement Schemes must be genuinely employment-based from 26 June 2020

On 17 June 2020, the Occupational Retirement Schemes (Amendment) Bill 2019 was passed at the Legislative Council. It has amended the Occupational Retirement Schemes Ordinance (ORSO) to prevent the misuse of schemes for purposes unrelated to employment by enhancing the powers of the Registrar (i.e. the Mandatory Provident Fund Schemes Authority) to ensure that ORSO schemes are genuinely employment-based retirement schemes and improving the governance of the ORSO schemes.

Under the employment-based criterion introduced by the amendments, ORSO schemes must limit membership to eligible persons, namely employees (whether past or present), transferred individuals in the case of business transactions and beneficiaries of deceased members. This means that ORSO schemes cannot be a collective investment scheme with open participation.

Additional documents are required to be filed with the Registrar for the purposes of ongoing compliance as well as new applications for registration. Employers who have or intend to set up ORSO schemes should take note of these changes. Changes will take effect once the bill is gazetted on 26 June 2020.

Applications for ESS closed, mostly utilised by SMEs

The HKSAR Government launched the Employment Support Scheme (ESS) to provide time-limited financial support to employers to retain employees who may otherwise be made redundant. Wage subsidies provided under the ESS are calculated on the basis of 50% of the basic salaries paid to the relevant employees in the specified month with a cap at HK$18,000, i.e. the maximum wage subsidy per employee is HK$9,000 per month.

Now the applications for the first tranche of the ESS have closed, the Government announced last week that:

  • It received a total of 428,659 applications, including 168,799 applications from employers and 259,860 applications from self-employed persons.
  • Among the employers, around 98% are micro or small and medium-sized enterprises with fewer than 50 employees.

The ESS Secretariat has notified successful applicants via SMS and email and has arranged to deposit the wage subsidies into their assigned bank accounts. Applicants can log in to the ESS portal to check the subsidy amount granted and committed head count for the months of June to August 2020.

Employers participating in the ESS are required to provide undertakings that they will not implement redundancies during the subsidy period 1 June to 30 November 2020), namely the number of employees on payroll during the subsidy period cannot be smaller than the number of employees in March 2020, and will spend all the wage subsidies on paying wages to the employees.

Details of the scheme can be found at the ESS portal. Companies who did not apply for the first tranche will still be able to apply for the second tranche (which covers the period from September to November 2020). The Government will review the arrangement of the first tranche and announce further details of the second tranche later.

 

Gareth Thomas
Gareth Thomas
Partner, Hong Kong
+852 2101 4025
Tess Lumsdaine
Tess Lumsdaine
Senior Consultant, Hong Kong
+852 2101 4122

 

With thanks to Sophia Li, Trainee solicitor, for assistance in preparing this article.