Three Major Loopholes of Contractual Working Hours
CY Leung, the previous Chief Executive of Hong Kong Special Administrative Region, hastily “delivered” his election promise shortly before his term ended, by sending the recommendation of “Contractual Working Hours” to Executive Council for further discussion. When he ran for office in 2012, he made concrete promise such as “to establish a special committee, to work out the legislation work that promote standard working hours.” Yet, he forgot his own promise as soon as he took office and the so-called recommendation was just a cover-up, to make others believe that he delivered his promise. In reality, contractual working hours could not help reduce excessive overtime, a problem faced by many workers.
Two major aspects of the Executive Council’s Proposal:
1. to recommend the legislation to provide for stipulation of hours of work and overtime compensation in employment contracts;
2. to pass laws to make it mandatory for employers to pay lower-income workers overtime wages / day-off at rates no less than their regular salaries / day-off standards.
Stipulation of Contracts is Missing the Target when Employees Have Little Say
I am a clerk in a tutorial school and I have to handle everything: student registration, printing posters, copying notes, filing, whatever the boss assigns me. My original contract states that I work from 9 am to 6 pm, but in reality, I work overtime very often. Two days in a week, I could leave office on time and on the other days, I am lucky if I could leave by 8 pm. Without a high academic qualification, I earn HKD 10,800 per month. I would like to further study, to upgrade myself, but the long working hours is a barrier. Contractual working hours could not help me. My boss made a calculation after he heard about it, he said my current hourly income is HKD 52 and if my overtime hours, i.e. 8 or 9 hours per week would be counted, he would have to pay overtime premiums of HKD 1,800 per month. Thus, he said he would then revise the contract to 10 working hours per day, to address the need of business. I have no chance to say anything.
Standard working hours and contractual working hours are two different concepts. Without standard working hours and under the current imbalanced setting of labour relations, employers are free to draw contracts in their favour. They would state long working hours in contracts to avoid overtime premiums. In short, contractual working hours does not only fail to help workers, but rationalizes the practice of long working hours and excessive overtime.
Income Benchmark at HKD 11,000
I used to work in a food factory. That factory closed down and I was unemployed. I am getting older and could not find a job in the same sector. I have to take care of my mother and don’t want to travel far to work, so now I work as a security guard in a building nearby. I work 12 hours per day. Based on the legal minimum wages of HKD 34.5 per hour, my monthly income is HKD 10,764 (26 working days). There is no payment on holidays and rest days.
The Government proposed to set the low income benchmark at HKD 11,000, how low is it? It is so low that it might not even help a security guard who earns legal minimum wages. It would become irrelevant to workers in the higher income sectors, such as accounting and health care. When the Government claims such a benchmark could protect a large number of workers, it is exaggerating. Based on Standard Working Hours Committee’s report, 26,000 workers worked overtime and earned less than HKD 10,000 in April 2014, i.e. 0.87% of the total workforce. The Government claims 550,000 workers would benefited from this benchmark. but it fails to address that many of them are workers who are entitled to overtime premiums, some are part-time workers or informal workers, this benchmark does not entitle them for more benefits.
Overtime premiums 1:1
I am a cleaning worker in a local shopping mall, earning HKD 34.5 per hour. If I work overtime, I get overtime premiums too. The lady at the personnel department said the employer would break the law if s/he wouldn’t pay me overtime premiums, because then my hourly income would be lower than the legal minimum wages. If the Government proposed a 1:1 overtime premiums, what is the use of it? I don’t get more benefits.
The Government has been turning a blind eye to unpaid overtime work for a long time and now its so-called new protective measure is the 1:1 overtime premiums, which should have been a fair share for an employee to receive when s/he works overtime. For employers, the 1:1 overtime premiums would save them money and administration work to make current employees work longer. Thus, it does not provide any incentive for employers to recruit more employees, to combat the problem of excessive overtime.