CONTRACTS FOR EMPLOYMENT OUTSIDE HONG KONG ORDINANCE

CONTRACTS FOR EMPLOYMENT OUTSIDE HONG KONG ORDINANCE

LAWS OF HONG KONG

CONTRACTS FOR EMPLOYMENT OUTSIDE
HONG KONG ORDINANCE

CHAPTER 78





CHAPTER 78

CONTRACTS FOR EMPLOYMENT OUTSIDE HONG KONG
ORDINANCE

ARRANGEMENT OF SECTIONS

Page

PART 1

PRELIMINARY

1..........Short title ....................... ... ... . ... ... ... ... 2

2............Interpretation ................... ... ... ... ... ... ... ... ... ... 2

3...................Delegation by Commissioner ... ... ... ... ... ... ... ... ... ... 2

4.......................Contracts to which the Ordinance applies ... ... ... ... ... ... ... ... 2

PART 11

CONTROL OF CONTRACTS FOR EMPLOYMENT OUTSIDE HONG KONG

5................................Contracts to be in writing and to contain certain particulars ... ... ... ... 3

6.......................Presentation of contract for attestation ... ... ... ... ... ... ... ... 5

7.........................Effect of noncompliance with section 5 or 6 ... ... ... ... ... ... 5

8.....................................Power to require bond or guarantee for due performance of contract ... ... 6

9..........[Repeated] ......................... ... ... ... ... ... ... ... ... ... 6

10.......................Medical examination prior to attestation ... ... ... ... ... ... ... 6

11................Attestation of contracts ... ... ... ... ... ... ... ... ... 6
12................Capacity to enter into contract ... ... ... ... ... ... ... ... ... ... 7
13................Maximum duration of contract ... ... ... ... ... ... ... ... ... ... 7

14. Offence where contract not attested etc. before departure of worker ... ... 8

15.........................Counselling etc., persons to evade Ordinance ... ... ... ... ... ... ... 8

16.......Defence .............................. ... ... ... ... ... ... ... ... 8

17. Applications to contracts of re-engagement . ... ... ... ... ... ... ... 8





CHAPTER 78

CONTRACTS FOR EMPLOYMENT OUTSIDE HONG KONG

To control contracts of employment entered into in Hong Kong by
manual workers proceeding outside Hong Kong.for employment

(Amended, 48 of 1985. ss. 2 and 15)

[1 November 1965.1

PART 1

PRELIMINARY

1. This Ordinance may be cited as the Contracts for Employment
Outside Hong Kong Ordinance.

(Amended, 48 of1985. s. 3)

2. In this Ordinance. unless the context otherwise requires---

-Commissioner- means the Commissioner for Labour:

-dependant--- means the spouse of a worker. and his or her children.
step-children. and lawfully adopted children. who are unmarried
and under the age of 16 years.

..manual worker- includes personal and domestic servants;

---worker-means a person who has entered or is about to enter the
employrnent of another under a contract to which this Ordinance
applies.

(Amended 48 of1985, s. 4)

3. The Commissioner may, in writing. delegate to any public officer,
either generally or for any particular purpose and either by name or by
reference to a public office. such of his powers and functions under this
Ordinance. other than the power conferred on him by section 11 (2)(b),
as he may consider expedient.

(Amended, 39 of 1971. s. 2)

4. This Ordinance applies to contracts of employment entered into
in Hong Kong after the commencement of this Ordinance, by which a
person in Hong Kong enters or agrees to enter into the service of
another person as a manual worker, where the contract is to be
performed. whether wholly or partially. outside Hong Kong: (Amended,
48 of* 1985. s. 15)

Provided that this Ordinance shall not apply in respect of

(a)persons employed for service as members of the crews of
ships or aircraft:





(b)persons proceeding to the United Kingdom for the purpose of
employment there, being employment in respect of which a
work permit, issued by or on behalf of the appropriate
authority, is required under any United Kingdom law for the
time being in force governing immigration to the United
Kingdom; (Replaced, 48 of 1985,s.5)

(c)any person or class of persons migrating for employment in
respect of whom the Commissioner certifies that he is satisfied
that admission to the country of immigration will be granted on
a permanent basis. (Amended, 48 of 1985, s.5)

PART 11

CONTROL OF CONTRACTS FOR EMPLOYMENT OUTSIDE HONG
KONG
(Amended, 48 of 1985, s. 6)

5. (1) Every contract to which this Ordinance applies shall be in
writing, and, before the departure of the worker from Hong Kong, shall
be signed by the worker and by the employer or other person acting on
behalf of the employer: (Amended, 48 of1985, ss. 7 and 15)

Provided that a worker who is unable to sign may indicate his
assent by affixing to the contract the impression of his thumb.

(2) Every contract to which this Ordinance applies shall contain all
such particulars as may be necessary to define the rights and
obligations of the parties thereto, and shall in all cases include the
following- (Amended, 48 of 1985, s. 7)

(a)the name of the employer and where applicable the name of
the business or undertaking;

(b)the name of the worker and particulars of the place of
engagement and the place of origin of the worker and any
other particulars necessary for his identification;

(c)the name of the place at which the contract is to be performed
and particulars of the nature of the employment;

(d)particulars of the rates of wages, including rates for overtime
work where applicable, and the manner and periodicity of
payment;

(e)particulars governing the advances of wages, if any. and the
manner of repayment of any such advances;





(f)except in the case of a contract for employment in domestic
service, particulars of the days and hours during which the
worker may be called on to work and of his entitlement in
respect of rest days and paid holidays;

(g)particulars of the duration of the contract, the grounds of,
provision for, and manner of, terminating the contract,
provisions for varying the contract and provisions for re-
engagement of the worker;

(h)a stipulation that the contract shall not be transferred from the
employer to any other employer except with the consent of the
worker freely given and not obtained by or as a result of any
threat, intimidation, bribery, deceit, undue influence,
misrepresentation or mistake, and except with the endorsement
of the transfer upon the contract by an officer or official of the
country in which the contract is performed for the time being
responsible for matters pertaining to employment;

(i)particulars of the measures to be taken to provide for the
welfare of the worker and any dependants who may
accompany him under the terms of the contract, including
particulars as to medical treatment, compensation in the event
of the death of or injury to, or incapacity due to occupational
disease of, the worker arising out of and in the course of the
employment, and the provision of food and quarters;

(j)particulars relating to the passage of the worker and his
dependants to and from the place at which the contract is to
be performed and an undertaking that the passage of the
worker and his dependants to the place at which the contract
is to be performed and all necessary documents, including
travel and employment permits, for the worker and his
dependants shall be provided by or on behalf of the employer
free of charge to the worker and his dependants;

(k) an undertaking that, upon the termination of contract,
the worker, if he so requests the employer within 3 months
after such termination, shall be repatriated at the em-
ployer's expense (which shall include travelling and sub-
sistence expenses during the journey and subsistence
expenses during the period, if any, between the date of
such termination and the date of repatriation other than
a period during which repatriation has been delayed by
the worker's own choice or for reasons of force majeure)
to hi s place of engagement or, at the worker's request,
to his place of origin if such place is nearer to the place
at which the contract was performed, together with his
dependants (if any) who were brought to the place at
which the contract was performed by or on behalf of the

employer;(Amended, 48 of 1985, s. 7)





(1)an undertaking that in the event of the death of the worker his
dependants (if any) who were brought to the place at which the
contract was being performed by or on behalf of the employer
shall, if they so request within 3 months after the death of the
worker, be repatriated at the employer's expense (which shall
include travelling and subsistence expenses referred to in
paragraph (k) to the worker's place of engagement or, at their
request, to the worker's place of origin if such place is nearer to
the place at which the contract was being performed,

(m)a stipulation that the employer shall provide free of charge
facilities for the worker to make remittances to his family or
dependants in Hong Kong; (Amended, 48 of 1985, s. 15)

(n)an undertaking that, on the expiry of the contract, the worker
will not be required to begin the employment stipulated in any
re-engagement contract if

(i) on the expiry of the contract, he has been separated from
all his dependants for more than 18 months; or

(ii) the period served under such contract together with the
duration stipulated in the re-engagement contract will involve
the separation of the worker from all his dependants for more
than 18 months,

until he has had the opportunity of returning, at the
employer's expense, to the place stipulated in the contract as
his home, being the place at which his dependants or the
majority of his dependants are at the date when he entered
into the contract or such other place as the Commissioner in
the special circumstances of the case may approve,

(o) any other special conditions of the contract.

6. Every contract to which this Ordinance applies shall be
presented to the Commissioner for attestation before the departure of
the worker from Hong Kong.

(Amended, 48 of 1985, ss. 8 and 15)

7. Where a contract to which this Ordinance applies-

(a) is not in writing in accordance with section 5(1); or

(b)has not been presented to the Commissioner for attestation
before the departure of the worker from Hong Kong,

it shall not be enforceable against the worker and no action shall be
maintainable against the worker for breach or non-fulfilment thereof,
and, where the omission to make the contract in writing or to present the
contract for attestation, as the case may be, is due to wilful omission or
neglect on the part of the employer or any person acting on the
employer's behalf, the worker may, without prejudice to any right he may
have to sue for damages for breach of contract,





sue the employer or such person for any expenses reasonably incurred
by him in the return of himself and any dependants accompanying him
to Hong Kong.

(Amended, 48 of 1985, ss. 9 and 15)

8. The Commissioner may require, as a condition precedent to the
attestation of any contract to which this Ordinance applies, that a
person approved by him and permanently resident in Hong Kong shall-
(Amended, 48 of 1985, ss. 10 and 15)

(a)furnish a bond in such sum and in such form as he may require,
with or without sureties; or

(b) sign a guarantee in such form as he may require,

generally for the performance of the contract by the employer, and, in
particular, for performance by the employer of his undertaking
respecting repatriation of the worker and his dependants (if any)
contained in the contract pursuant to paragraph (k) or (1), as the case
may be, and, as regards provision of travel documents, pursuant to
paragraph (j), of section 5(2), whether, as regards any such undertaking,
the contract is or may be or becomes void or unenforceable for any
reason.

9. [Repealed, 31 of 1981, s. 65]

10. Every worker who enters into a contract to which this
Ordinance applies shall, at the expense of the employer or other person
acting on the employer's behalf, be medically examined prior to the
attestation of the contract as to his fitness to perform the work
contemplated by the contract.

(Amended, 48 qf 1985, s. 11)

11. (1) Before attesting any contract pursuant to section 6, the
Commissioner shall satisfy himself that

(a)the worker has freely consented to the contract and that the
consent has not been obtained by or as a result of any threat,
intimidation, bribery, deceit, undue influence, misrepresentation
or mistake;

(b) the worker has fully understood the terms of the contract;

(e)the contract is in accordance with the requirements of this
Ordinance,

(d)in relation to the worker, there has been no contravention of
any of the provisions of section 51 of the Employment
Ordinance; (Amended, 38 of 1968, s. 37)

(e)the provisions relating to medical examination set out in
section 10 have been complied with and the worker is in a fit
condition to perform the contract,

any bond or guarantee required to be furnished has been
furnished in accordance with section 8;





(g)the worker has declared himself not bound by a previous
engagement; and

(h)in respect of a contract to be performed in a territory for
which the Contracts of Employrnent (Indigenous Workers)
Convention 1939, of the International Labour Organiza-
tion, is not in force, the worker will be entitled in that
territory, either in virtue of the law of that territory or in
virtue of the terms of the contract, to the rights and
protection specified in articles 10 to 16 of the aforemen-
tioned Convention.

(2) The Commissioner may refuse to attest any such contract-

(a)if he is not satisfied in regard to any of the matters specified
in subsection (1); or

(b)if he is satisfied that the terms thereof are unfair to the
worker or do not adequately protect the worker's interest.

and any contract which the Commissioner has refused to attest.
being a contract required to be presented to him for attestation
pursuant to section 6, shall have no further validity. (Replaced, 39
qf 1971, s. 5)

(3) Where the Commissioner attests any such contract, he
shall attest not less than 2 copies in addition to the original and
shall---

(a) deliver one copy to the worker; and

(b)retain one copy in safe custody for a period of not less than
6 years.

12. A person shall not be capable of entering into a contract
to which this Ordinance applies if he is less than either of the
following-

(a) 18 years of age; or

(b)the minimum age of capacity for entering into such a
contract allowed by the law of the territory in which the
contract is to be performed.
(Replaced, 48 of'] 985, s. 12)

13. The maximum duration which may be stipulated in any
contract to which this Ordinance applies shall in no case exceed-
(Amended, 48 of 1985, s. 13)

(a)2 years if the worker is not accompanied by any depen-
dants, or 3 years if the worker is accompanied by a
dependant or dependants, or

(b)the maximum period prescribed by the law of the territory
in which the contract is to be performed,

whichever is the less.





14. Subject to section 16, where a contract to which this Ordinance
applies

(a) is not in writing; or

(b)is not attested by the Commissioner under section 11 before
the departure of the worker from Hong Kong to take up
employment under the contract,

the employer and, if the contract has been entered into by another
person acting on the employer's behalf, that person, commits an offence
and is liable to a fine of $50,000.

(Replaced, 48 qf 1985, s. 14)

15. Subject to section 16, any person who counsels, solicits,
procures or induces any other person in Hong Kong

(a)to enter into a contract to which this Ordinance applies other
than a contract which complies with section 5; or

(b)to depart from Hong Kong to take up employment under a
contract to which this Ordinance applies before the contract is
attested by the Commissioner under section 11,

commits an offence and is liable to a fine of 550,000.

(Added, 48 qf 1985, s. 14)

16. A defendant shall not be convicted of an offence under section
14 or 15 in. relation to a person migrating for employrnent if he satisfies
the magistrate that at the time the offence is alleged to have been
committed he believed on reasonable grounds that the Commissioner

(a) had certified; or

(b)would certify prior to the departure of such person from Hong
Kong,

that he was satisfied in relation to the person migrating that admission
to the country of immigration would be granted on a permanent basis.

(Added, 48 of 1985, s. 14)

17. For the avoidance of doubt, this Ordinance, save where the
context otherwise requires. applies to contracts of re-engagement as it
applies to contracts of engagement in the first instance.

(Added, 48 of 1985, s. 14)
Originally 8 of 1965. 38 of 1968. 39 of 1971. 31 of 1981. 48 of 1985. L.N. 135/65. Short title. Interpretation. Delegation by Commissioner. Contracts to which the Ordinance applies. Contracts to be in writing and to contain certain particulars. Presentation of contract for attestation. Effect of non-compliance with section 5 or 6. Power to require bond or guarantee for due performance of contract. Medical examination prior to attestation. Attestation of contracts. (Cap. 57.) Capacity to enter into contract. Maximum duration of contract. Offence where contract not attested etc. before departure of worker. Counselling etc., persons to evade Ordinance. Defence. Applications to contracts of reengagement.

Originally 8 of 1965. 38 of 1968. 39 of 1971. 31 of 1981. 48 of 1985. L.N. 135/65. Short title. Interpretation. Delegation by Commissioner. Contracts to which the Ordinance applies. Contracts to be in writing and to contain certain particulars. Presentation of contract for attestation. Effect of non-compliance with section 5 or 6. Power to require bond or guarantee for due performance of contract. Medical examination prior to attestation. Attestation of contracts. (Cap. 57.) Capacity to enter into contract. Maximum duration of contract. Offence where contract not attested etc. before departure of worker. Counselling etc., persons to evade Ordinance. Defence. Applications to contracts of reengagement.

https://oelawhk.lib.hku.hk/items/show/2385

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