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Following is a question by the Hon Fred Li Wah-ming and a reply by the Secretary for Labour and Welfare, Mr Matthew Cheung Kin-chung, in the Legislative Council today (November 24):
Question:
Recently, it has been widely reported by the media that a large fast food chain restaurant in Hong Kong cancelled paid meal break for its staff using the reason that it was gearing up for the Minimum Wage Ordinance that uses the actual hours worked as a basis for calculating wages, which in the end might result in a reduction of wages for its staff. This incident was subsequently settled when the employer was willing to make concessions. However, it has been learnt that the contracts signed between the service contractors of the Government and their employees have also stipulated that meal breaks are not included in calculating wages. In this connection, will the Government inform this Council:
(a) whether the Government has assessed if its practice of allowing its service contractors to stipulate in their employment contracts the exclusion of meal breaks in calculating wages will set an example for other employers in Hong Kong; if it has, of the results of the assessment; if not, the reasons for that;
(b) whether the Government will consider requesting its service contractors to include employees' meal breaks as paid time so as to safeguard labour interests; if it will, of the details; if not, the reasons for that; and
(c) given that it has been reported that the incident of the cancellation of staff's paid meal breaks by the aforesaid fast food chain restaurant has led to serious repercussions in the community, whether the Government will reconsider stipulating in the Employment Ordinance and the Minimum Wage Ordinance that employees' meal breaks be included as paid time; if so, of the details; if not, the reasons for that?
Reply:
President,
The Government has all along been committed to protecting the rights and benefits of non-skilled workers employed by government service contractors, and has implemented a series of mandatory requirements for tender assessment and measures to strengthen the monitoring of contractors to safeguard the wages and benefits of these workers.
Since May 2004, in respect of government service contracts (excluding construction service contracts) relying heavily on the deployment of non-skilled workers, all procurement departments and Trading Funds should ensure that the monthly wages paid by contractors to their non-skilled workers are not less than the average monthly wages for the relevant industries/occupations as published in the latest Census and Statistics Department's Quarterly Report of Wage and Payroll Statistics.
In April 2005, the Government introduced the Standard Employment Contract (SEC). Since then, it is a mandatory requirement for government service contractors to sign SEC with their non-skilled workers. SEC sets out clearly the monthly wages, working hours and method of wage payment, etc with a view to enhancing protection to employees.
My reply to the three parts of the question raised by the Hon Fred Li Wah-ming is set out below:
(a) The SEC for Government service contractors is silent, I stress,silent, on whether meal breaks should be paid. In fact, like enterprises in the private sector, at the time of signing the SEC, contractors and their workers can negotiate and agree on the terms of employment such as working hours, including arrangements and any payment for meal breaks having regard to the nature of work, characteristics of the industries and operational needs of the company. After a contractor and his employees have entered into employment terms specifying that meal breaks are part of the working hours, the employer shall not unilaterally vary or remove such employment terms without the consent of employees.
(b) According to the Minimum Wage Ordinance (MWO), if an employee is, during his meal breaks, in attendance at a place of employment in accordance with the contract of employment or with the agreement or at the direction of the employer, such time shall be included in the hours worked by the employee for computing statutory minimum wage, irrespective of whether he is provided with work or not. At present, SEC sets out clearly the monthly wages and working hours, etc of outsourced workers. As statutory minimum wage would be computed on an hourly basis, to ensure that wages received by the outsourced workers comply with the requirments of the MWO, we are reviewing the terms of SEC to see if any corresponding revisions are required.
(c) All along, employers and employees can agree on their employment terms having regard to the circumstances of individual enterprises and personal needs of employees, including whether meal breaks constitute hours worked by employees, and whether they are remunerated or not.
Although the Employment Ordinance does not regulate meal breaks, as mentioned in part (a) of this reply, after an employer and his employees have included meal breaks as hours worked by the employees in accordance with their employment contracts or agreements, the employer shall not unilaterally vary or remove such contractual terms or agreements concerning working hours.
In the course of scrutinising the Minimum Wage Bill in the last legislative session, the Bills Committee of the Legislative Council had thoroughly deliberated whether meal breaks should be counted in computing statutory minimum wage. After rounds of deliberation, the MWO as ultimately passed has stipulated the circumstances under which meal breaks should constitute hours worked for the purpose of computing statutory minimum wage, as explained in part (b) of this reply. Moreover, if meal breaks are regarded as working hours of the employee according to his employment contract or agreement with his employer, such hours must also be taken into account in computing statutory minimum wage.
With the divergent circumstances of individual industries and enterprises, as well as the different personal needs of employees, and given that whether or not meal breaks should constitute hours worked and be remunerated are employment terms to be agreed between employers and employees, it would be inappropriate to regulate the matter across the board by law. In fact, quite a number of economies with statutory minimum wage in place (e.g. United States, United Kingdom, Australia, Japan, South Korea, Mainland China and Taiwan) neither require employers to pay statutory minimum wage during their employees' meal breaks nor stipulate that meal breaks should be remunerated under their minimum wage legislation.
Ends/Wednesday, November 24, 2010
Issued at HKT 15:26
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