Labour

worker vs independent contractor
- The Fair Work Ombudsman has finalised its investigation into Uber and found its drivers to be independent contractors, not employees. Its decision confirms that Uber drivers are not entitled to receive the minimum wage, annual leave, sick leave or any benefits that employees receive. For the last two years, the FWO had been looking into whether the rideshare giant had engaged in "sham contracting". The regulator wanted to know whether Uber was misrepresenting its drivers as, essentially, people who are running their own business — to avoid paying employee benefits. "The weight of evidence from our investigation establishes that the relationship between Uber Australia and the drivers is not an employment relationship," said Fair Work Ombudsman Sandra Parker. "For such a relationship to exist, the courts have determined that there must be, at a minimum, an obligation for an employee to perform work when it is demanded by the employer. https://www.abc.net.au/news/2019-06-07/uber-fair-work-ombudsman-investigation-contractor-employee/11189828

employment contracts
- common law

• governing legislation

• hk - employment ordinance and employees compensation ordinance

• common law principles

• it is assumed that the employer and the employee are free to negotiate the terms of the contract therefore unless the terms violate the statutory provisions (which aims at giving some protection to the employee whose bargaining position is often not as strong as the employer) they are valid
• implies the following duties to the employer: a) provide remuneration to the employee; b) provide for safe working conditions for the employees; and c) to indemnity expenses, losses or liabilities incurred by an employee in carrying out his duties under the employment contract 

• implies the following duties to the employee: a) faithful service (duty of good faith ie employee has to work faithfully and honestly for the employer eg not to put himself in a conflicting position with the employer like by competing with his employer; b) reasonable care and skill: work must be done by the employee with reasonable care and skill. Therefore it is possible for an employer to dismiss the employee for gross incompetence in performance of duties; c) obedience: employee must obey lawful and reasonable instruction given by the employer; and d) confidentiality: cannot disclose trade secrets or confidential information of the employer obtained during the period of employment even after the employment contract has expired.

• contracts of service and for service

• a person who works under a contract of service is an employee and a person who works under a contract for service is an independent contract. 
• tests by court for distinguishing between employees and independent contracts:

•  control test - control iro work done and the manner in performance of the work; power of selection of the servant; right to control the method of doing the work; right of suspension and dismissal
• integration test - person employed as part of the business and his work is done as an integral part of the business, whereas under a contract for service a man's work although done for a business is not integrated into it, but is only accessory to it (stevenson jordan & harrison v macdonald) This test has been used to explain the status of professional relationships eg doctors for whom the control test is inappropriate (cassidy v ministry of health)

• economic reality / mixed or multiple test - incorporates both the control test and the integration test, meaning that factors such as control, integration, powers of selection etc are simply issues which contribute to the decision which must be based on all the circumstances (ready mixed concrete (southeast) ltd v minister of pensions and national insurance) 

•  only employees qualify for rights established under the employment ordinance and other statutory provisions
• the concepts of vicarious liability normally extends only to employer/employee relationship 
• there are certain rights, duties and obligations which are implied with every contract of employment which do not extend to the relationship between an independent contractor and the person for whom he is working

• employees under a contract of service are taxed under the salaries tax whereas those working under a contract for service are taxed under profits tax where they are likely to enjoy more favourable treatment. 

• unfair and wrongful dismissal

• s9 employment ordinance - employer may terminate a contract of employment without notice of payment if the employee a) wilfully disobey a lawful and reasonable order; b) misconduct himself in the faithful discharge of his duties; c) guilty of fraud or dishonesty; d) habitually neglectful of his duties

• wrongful dismissal therefore occurs if the employer dismisses an employee for reasons other than mentioned in s9 and fails to observe the required time provisions regarding the giving of notice of intention to terminate the contract of employment

• no concept of unfair dismissal is adopted in hk legislation. However under s15, employer cannot terminate the employment of a female employee during the period she gvie notice of her intention to take maternity leave
• in cases if employees has been wrongfully dismissed the employee has the remedy of charges. s3A, s6, s7

• redundancy exists where the employer has ceased or intend to cease the business which the employee is being employed; or the employer has moved or intends to move; or the employer requires a smaller workforce.  Redundancy entitled the employee severance payment or long service payment.
• termination of employment contract

• by employer - s5 and s6; summary dismissal (instant dismissal)
• by employee - s10 - employee may terminate his conduct of employment without notice or payment in lieu of notice if he reasonably fears physical danger by violence or disease which was not contemplated by the contract of employment or by implication; he has been employed under the contract for not less than the number of years specified in s31R(1)(a) and is certified by a medical practitioner in government or government subvented hospital to be permanently unfit for the particular type of work he is engaging in; if he is subject to ill-treatment by the employer; on any ground on which he would entitle to terminate the contract without notice at common law. 

• remedies of employees

• remedies available to an employee who consider that the employer is in breach of the employment contract are 1) termination of contract without notice 2) termination of contract with notice 3) right to take the matter to the labour tribunal
• other rights - 1) severance payment 2) long service payment (not less than 40 years old; between 36 to 40; no entitlement if s9) 3) change of ownership of business - contract renewed by the new owner with the employee or re-engage the employee shall have effect as if the renewal or re-engagement is made by previous owner; 4) claim for damages where he has been wrongfully dismissed under s8A 5) terminate the contract without giving notice on the grounds mentioned in s10  

• workers compensation - provides benefit to be paid to an employe in work related injuries which arise out of and during the course of employment. Adjudication of the claim and administration of payments are handled by the state. 

• an employee injured at work during the course of his employment can be entitled to a no-fault compensation under the employees' compensation ordinance.  In addition he may also claim damages under tort if the employer is a) in breach of statutory duty or b) vicariously liable for the act of his fellow employees; c) in breach of the common law duty of care ie duty to ensure that reasonable care is taken to provide competent staff, adequate materials and a proper system of work which includes adequate supervision.
• compensation under the employees' compensation ordinance is payable to an employee who is bodily injured or die in carrying out the employment duties even employer is without fault or negligent 

•  for the purpose of ensuring the employer can have sufficient money to pay the compensation, s40 of the employees' compensation ordinance has made it clear that there must be a policy of insurance covering the full amount of the liability specified in the ordinance before an employer can employ any employee
• an employees' compensation fund has been set up and financed by levies on the insurance premiums of the employees compensation insurance to pay the compensation in case the insurer is insolvent
• where the employer is in breach of a duty imposed by legislation which he owed to individual employee eg fails to fence in dangerous machinery) he will be liable to damages. However, he can have the following defence a) the employee is also in breach of the duty and this is the sole cause of the accident b) contributory negligence ie the employee have themselves partly contributed to the accident c) violenti non fit injuria ie the employee consented to the risk of suffering damage or loss.  Any damages awarded will be deducted by the amount of compensation granted under the employees' compensation ordinance (s26)
• us 

• under workers' compensation, an employee may recover hospital and medical expenses; certain vocational rehabilitation; disability benefits; set recoveries for loss of body parts; survivor/dependent death benefits.

a job characteristics model (JCM) identifies five primary job characteristics, their interrelationships, and their impact on employee productivity, motivation, and satisfaction.  According to the JCM, any job can be described in terms of five core dimensions: skill variety; task identity; task significance; autonomy; feedback

five day week
- hk

• scmp remember a day  on a  1nov1979    report - A five-day working week for office workers was proposed at the Legislative Council. Legislator Leung Tat-shing said it would help increase productivity and improve staff morale. He also called on the government to take the lead by first extending its policy of giving civil servants alternate Saturdays off and eventually implementing a five-day work week. https://www.scmp.com/news/hong-kong/society/article/3035673/drunken-royal-sailor-presidential-killing-and-proposal-five

four day week
- https://www.scmp.com/business/companies/article/3043159/what-are-chances-companies-implementing-four-day-working-week Hong Kong companies could be ripe for a change to a shorter work week, according to Brett Cooper, general manager of the Hong Kong office for Philip Morris International. The 350-person office, which oversees the highly lucrative Asia-Pacific region for the cigarette maker, works four and a half days a week, with most staff calling it quits by 1pm on Friday afternoon.

- 新西蘭總理阿德恩（Jacinda Ardern）上周二（五月十九日）發表公 開講話，鼓勵僱主考慮實施四天工作周 ，或以較彈性方式安排工作，助僱員享 有更多私人時間之餘，同時刺激國內經 濟及旅遊。 其實，不少新西蘭公司一早實行四 天 工 作 周 ， 例 如 新 西 蘭 信 託 公 司 Perpetual Guardian，早於二○一八年 實施四天工作周，證實這一措施可令員 工心情更輕鬆，生產力也大大提升了。 不要以為小國寡民的新西蘭才如此，內 地的江西、浙江和甘肅隴南等地已提出 試行兩天半彈性作息的政策，以期增加 閒暇時間，刺激消費。http://paper.takungpao.com/resfile/PDF/20200528/PDF/b13_screen.pdf

Working hour
- EU

• https://www.theparliamentmagazine.eu/articles/news/european-court-justice-rules-travel-time-should-be-counted-working-time The Luxembourg court ruled last week that for workers with no fixed office, such as care workers and door-to-door salesmen, time spent travelling to work should be counted as working time under the European Union’s Working Time Directive (WTD) rules. The ruling does not impact on those with long commutes to fixed work places. The case has divided MEPs in the parliament's employment and social affairs committee (EMPL) with German committee chair Thomas Handel, welcoming the move saying, "the WTD is designed to protect the health and safety of workers. If these trips were not considered working time, in my view, this would run contrary to the directive, an important example of EU legislation."

- finland

• 近日有多地傳媒報道，上月才上任的芬蘭女總理馬林（Sanna Marin）擬實施靈活的工作制度，包括每周工作四天、每天工作六小時。有關報道一出，令不少網民都對芬蘭打工仔羨慕到「流口水」，惟有芬蘭傳媒周一稱這其實只是美麗的誤會，令人「一場歡喜一場空」。https://orientaldaily.on.cc/cnt/china_world/20200108/00180_036.html

- hungary

• https://www.reuters.com/article/us-hungary-protest/hungarians-protest-against-slave-law-overtime-rules-idUSKBN1O70FM Thousands of Hungarians protested in Budapest on Saturday against a proposed new labor law that allows employers to ask for up to 400 hours of overtime work per year, a move its critics have billed as the “slave law”.The modification to the labor code submitted to Parliament this week has faced intense criticism, sparking the biggest street protest in over a year. Potentially, it could add two extra hours to an average work day, or the equivalent of an extra workday per week.

- australia

• https://www.smh.com.au/business/companies/qantas-call-for-christmas-airport-volunteers-has-workers-seeing-red-20181207-p50kzk.html A new volunteer program for Qantas' head office workers to spread "a bit of Christmas cheer" at Sydney Airport appears to have had the opposite effect – but Qantas insists the program is not about cost cutting. The airline is being accused of "wage theft" and "Grinch" behaviour after an email to staff asking them to volunteer time at the airport during its busiest period was leaked on Friday.

- japan

• 日本經濟產業省昨日召開專家會議，呼籲便利店東主增加彈 性，按照分店實際情況，調整 24小時營業和全年無休的經營 方針，若獲業界響應將標誌便利店業務一大轉變。http://pdf.wenweipo.com/2019/12/24/a19-1224.pdf

shifts
- uk

• https://www.theguardian.com/uk-news/2019/jul/19/zero-hours-workers-may-get-compensation-for-cancelled-shifts Companies could be forced to compensate workers on zero-hours or flexible contracts for cancelled shifts, under government proposals. The business secretary, Greg Clark, launched a 12-week consultation process on the measures designed to protect those in insecure work. The plan was based on the recommendations made by Tony Blair’s former adviser Matthew Taylor in his review into employment published last year. The government is also consulting on introducing a “reasonable period of notice” on weekly hours and protection from being penalised for not accepting last-minute shifts, as part of a package of measures to tackle problems associated with flexible working.

minimum wage
- europe

• https://www.quora.com/If-Serbia-is-a-poor-country-then-why-does-it-not-have-a-high-birth-rate-like-Chad-or-the-Central-African-Republic

- https://www.gov.uk/government/news/record-156-million-underpayment-identified-for-workers-on-the-minimum-wage Her Majesty’s Revenue and Customs (HMRC) achieved record enforcement results this year, identifying £15.6million of underpayments. The number of workers identified as underpaid was double that in 2016/17 and the highest number since the National Minimum Wage came into force. In every case, the government instructs employers to repay their workers and enforces the return of the missing cash. The rise in cases follows increased efforts by HMRC to promote compliance and improve employer awareness of the minimum wage.

Leave
- Garden leave describes the practice whereby an employee leaving a job – having resigned or otherwise had their employment terminated – is instructed to stay away from work during the notice period, while still remaining on the payroll. This practice is often used to prevent employees from taking with them up-to-date (and perhaps sensitive) information when they leave their current employer, especially when they are leaving to join a competitor. The term is in common use in banking and other financial employment in Britain, Australia and New Zealand. Sometimes, the practice is used to avoid sloppy work or sabotage by a disaffected employee. The term originated in the British civil service, where employees had the right to request special leave for exceptional purposes. "Gardening leave" became a euphemism for "suspended" as an employee who was formally suspended pending an investigation into their conduct would often request to be out of the office on special leave instead. The term came to widespread public attention in 1986 when it was used in the BBC sitcom Yes, Prime Minister episode "One Of Us". Employees continue to receive their normal pay during garden leave and must adhere to their conditions of employment, such as confidentiality, at least until their notice period expires. The term can also refer to the case of an employee sent home pending disciplinary proceedings, when they are between projects, or when, as a result of publicity, their presence at work is considered counter-productive. It has also been used in British football.
- maternity leave

• sweden the first country in the world to replace maternity leave with parental leave in 1974

migrant worker
- government "help"/"relief"

• singapore

• festival for migrant workers in singapore scmp 10dec18 "out from the shadows"

- domestic workers

• The Convention on Domestic Workers, formally the Convention concerning Decent Work for Domestic Workers is a convention setting labour standards for domestic workers. It is the 189th ILO convention and was adopted during the 100th session of the International Labour Organization.^[4] It entered into force on 5 September 2013.The main rights given to domestic workers as decent work are daily and weekly (at least 24 h) rest hours, entitlement to minimum wage and to choose the place where they live and spend their leave. Ratifying states parties should also take protective measures against violence and should enforce a minimum age which is consistent with the minimum age at other types of employment. Workers furthermore have a right to a clear (preferably written) communication of employment conditions which should in case of international recruitment be communicated prior to immigration. They are furthermore not required to reside at the house where they work, or to stay at the house during their leave. The convention was put to vote on 16 June 2011 by a vote at the ILO conference in Geneva. As ILO is a tripartite organization, for every country the government, employers and workers' representatives are entitled to vote. The convention was adopted with 396 votes in favour and 16 against (and 63 abstentions).^[4] All Persian Gulf states voted in support, while abstentions were cast by (amongst others) the United Kingdom. The convention entered into force one year after ratification by two countries, which is a standard entry into force condition for ILO conventions. Ratifications are to be communicated to the Secretary-General of the ILO. On 26 April 2012, the Uruguayan parliament approved the convention and thereby became the first country to ratify it,^[6] followed by presidential assent on 30 April 2012^[7] and deposit of its instrument of ratification in June 2012. As of June 2019, it has been ratified by 29 states.
• south east asia

• [background on making film "sunday" by hk international new media group] a lot of hk families began hiring foreign domestic helpers in 1970s, a time when the philippines government encouraged its citizens to look for employment opportunities abroad.  This explains why yast majority of hk's earliest foreign domestic helpers were mostly women from the philippines, a phenomenon that persisted until recent years, when they were joined by a large number of indonesian domestic helpers. As of 2017, among the 360,000 foreign domestic helopers in hk, 54% were from the philippines, while 44% came from indonesia.

• cases

• 菲傭在港懷孕產女，其僱主堅持要她按照僱傭合約在僱主住所留宿，卻拒絕讓其女兒同住，令她被迫骨肉分離。她遂以自己和女兒代表的身份，於前日入稟高院申請司法覆核，要求法庭裁定在僱主家留宿之規定，不適用於休假時期，亦違反外傭的行動和家庭團聚自由。本案申請人為Yvette Dingle Fernandez及由她代表的女兒 Eloisa Valerie Fernandez，答辯人分別是勞工處處長和入境事務處處長。申請人於去年十二月發現懷孕，至今年五月上旬通知僱主，並在六月十四日誕女。她在五月下旬就住宿問題詢問勞工處與入境處，獲回覆她需按合約規定住在僱主地址，就算懷孕與休假亦不例外；對新生嬰兒的安排，則要由勞資雙方自行商議。申請人的僱主堅持要申請人獨自在其住所留宿，但拒讓其女兒與她同住。申請人遂向勞工處求助，請求處方酌情豁免要她留宿僱主家，不過處方以她與僱主並無共識為由拒絕插手。申請人現指，僱傭合約中要外傭在指定地點工作和居住，應詮釋為僅在工作時要在指定地點居住，休假時不應受限。另外，勞工處拒絕考慮豁免規限，亦違反申請人的家庭團聚權和保障兒童福利的國際公約，故法庭應作干預。https://orientaldaily.on.cc/cnt/news/20191031/00176_069.html

child labour
- austria

• The world-famous Vienna Boys Choir would not sing that year at the Christmas Mass in the Imperial Chapel, because a newspaper had unearthed an old child labour law that the choir had unwittingly violated for decades. The statute stated that it was illegal to make children work during school holidays. Except for the period during World War II, this would be Vienna’s first Christmas in 480 years without the choir performing.https://www.scmp.com/news/hong-kong/society/article/2177792/vienna-boys-choir-gets-christmas-and-china-tests-nuclear

unfair dismissal
- scmp 15mar19 "woman fired on sick leave sues bank"
- ft 24jan2020 food safety expert wins nestle dismissal case

- 國泰港龍航空空勤人員協會前總幹事施安娜，指控國泰港龍無理解僱及歧視職工會，早前入稟勞資審裁處，申索四十五萬元賠償，並爭取復職。案件昨日提堂，施把申索額增至一千萬元。署理主任審裁官陳大為指出，案件牽涉到基本法內容，申索金額亦超出勞審處可處理範圍，並援引相似案例，裁決把案件轉介至高等法院，並關注勞資雙方意見。https://orientaldaily.on.cc/cnt/news/20200619/00176_055.html

non-disclosure
- https://www.gov.uk/government/news/crack-down-on-misuse-of-non-disclosure-agreements-in-the-workplace NDAs can be used by businesses for a number of legitimate reasons but in a minority of cases they are being abused and those that sign them not made aware of their rights. Business Minister Kelly Tolhurst today (Sunday 21 July 2019) announced plans for new legislation which will, for the first time, prohibit NDAs being used to prevent individuals from disclosing information to the police, regulated health and care professionals, or legal professionals, such as a doctor, lawyer, or social worker.

discrimination
- 茅台集團旗下子公司貴州茅台醬香酒營銷公司（醬香酒公司），因拒絕錄用一名在體檢中測出HIV病毒的男子，而捲入歧視風波。事主稱在不知情的情況下，被偷驗出HIV病毒，他上周三（16日）以「侵犯平等就業權」為由入稟法院，要求判醬香酒公司侵犯愛滋病人的平等就業權，需依法錄用及書面賠禮道歉，並賠償精神撫慰金和維權成本費用共九萬元人民幣（約十萬一千港元）。https://orientaldaily.on.cc/cnt/china_world/20191020/00178_017.html

labour rights at the expense of efficiency
- scmp remember a day on a 31oct1979   report - Sydney’s bus maintenance crew had complained that the city’s new 500 Mercedes-Benz bus fleet needed only a third as much maintenance as the existing Leyland vehicles they were replacing. As a result, they claimed the vehicles’ reliability threatened their jobs. Transport officials later reassured there were no plans to cut staff. https://www.scmp.com/news/hong-kong/society/article/3035673/drunken-royal-sailor-presidential-killing-and-proposal-five

wellbeing
- employee assistance and wellness programs are designed to offer employees a variety of servicesd that will help them to become mentally and physically healthy, which in turn reduces absenteeism and productivity losses due to accidents

world skills competition
- 兩年一度的世界技能大賽將於本月下旬在俄羅斯喀山舉行，香港代表隊正積極備戰，出戰其中廿二個項目。參賽者歐陽家明和楊家豪在去年的香港代表選拔賽中，於機電一體化項目脫穎而出，並接受一年特訓後，將到俄羅斯與各地選手一決高下。除二人外，另一參賽者陳詠朗亦將出戰珠寶製作項目，務求在國際舞台上爭取佳績，為港爭光。https://orientaldaily.on.cc/cnt/news/20190812/00176_043.html

umbrella organisations

- LO

• The Swedish Trade Union Confederation (Swedish: Landsorganisationen i Sverige, literally "National Organisation in Sweden"), commonly referred to as LO, is a national trade union centre, an umbrella organisation for fourteen Swedish trade unions that organise mainly "blue-collar" workers. The Confederation, which gathers in total about 1.5 million employees out of Sweden's 10 million people population, was founded in 1898 by blue-collar unions on the initiative of the 1897 Scandinavian Labour Congress and the Swedish Social Democratic Party, which almost exclusively was made up by trade unions.While its Danish sister organisation, the Danish Confederation of Trade Unions, cut its formal ties to the country's Social Democratic party in 1995, the Swedish Trade Union Confederation maintains a strong cooperation with the Social Democrats. Although the organisations are independent from each other, the Swedish Trade Union Confederation has a representative on the party’s executive committee elected by the Party Congress. Also, both the Confederation and the member unions contribute substantial amounts of money to the party. Until 1987 there was a system of collective membership in the Social Democratic Party for members in the confederation, in which the local union could apply for membership in the Social Democratic Party, effectively enrolling all its members into the Social Democratic Party. (An individual could decline to be part of this collective membership.) Until recently, The Swedish Trade Union Confederation owned 50.1% of the evening newspaper Aftonbladet, the largest daily newspaper in Scandinavia (as of 2005). As of 2012, the organisation owns 9% of the newspaper. The organisation bought Aftonbladet in 1956 but sold off 49.9 percent to Norwegian media company Schibsted on 2 May 1996.
• 瑞 典國際工會組織日前發聲明稱，港區 國安法將「限制港人組織和參加工會 的自由」，又稱去年秋天有「香港工 會領袖因為反對國家安全立法示威」 被捕。勞工及福利局副局長何啟明日 前在 facebook 批評，聲明相關內容 「混淆時空」，明顯與事實不符，並 已去信澄清。http://pdf.wenweipo.com/2020/06/21/a04-0621.pdf
• LO, The Danish Confederation of Trade Unions (Danish: LO, Landsorganisationen i Danmark or simply LO) was founded in 1898 and was an umbrella organisation (the largest of the three national trade union centers in Denmark) for 18 Danish trade unions. At the end of 2018, it merged into the new Danish Trade Union Confederation.

Media/journal
- Work, Employment & Society is a peer-reviewed academic journal that publishes papers in the fields of economics and industrial relations. It has been in publication since 1984 and is currently published by SAGE Publications on behalf of the British Sociological Association.Work, Employment & Society publishes theoretically informed and original research on the sociology of work. The journal aims to cover all aspects of work, employment and unemployment and their connections with wider social processes and social structures.
- China Labour Bulletin http://www.clb.org.hk/en/