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Minimum Wage Ordinance (Cap. 608)

3 June 2011

Seminar on Minimum Wage, Law Firms and Internship –

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Minimum Wage Ordinance

Minimum Wage Ordinance (MWO) enacted by LegCo on 17 July 2010

Initial statutory minimum wage (SMW) rate at $28/hour, to take effect on 1 May 2011

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Application of MWO

Modelled after the Employment Ordinance

Only applicable to employee under a contract of employment

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Application of MWO

Exemptions: live-in domestic workers

specified student interns & work experience students

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Student Internship

Internship without employer-employee relationship NOT covered by MWO

Specified student interns & work experience students EXEMPTED from MWO

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Student Internship – Employee or Not

Whether a student intern is an employee has to be determined by taking into account all the relevant facts and circumstances

No hard and fast rule as to what are the relevant factors

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Student Internship – Employee or Not

According to the decisions of some English cases, a person who agrees to carry out work with an organisation (with no sanction for a failure to honour that commitment) without pay, or who is reimbursed for work-related expenses only, will likely not be working under a contract of employment as there is no consideration and/or intention to create legal relations

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Pupil Barrister – Employee or Not

Generally accepted that NO employer-employee relationship between pupil master and pupil barrister

In Edmonds v Lawson and Others [2000] ICR 567, the English Court of Appeal decided that a pupil barrister was not engaged under a contract of employment and accordingly NOT qualified for SMW

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Student Interns Students in full-time locally-accredited programmes in

education institutions in Schedule 1, or

Students resident in HK in full-time education leading to non-local academic qualifications at degree level or higher

Work arranged / endorsed by education institution Compulsory / elective component Document (or copy) issued by education institution

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Schedule 1 Education institutions

Universities Post secondary colleges Schools offering post secondary

programmes Vocational Training Council

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Work Experience Students Students in full-time education programme - same as

interns (document or copy issued by education institution)

The employment need not be curriculum-related or arranged / endorsed by education institution

Student under the age of 26 at beginning of employment

Exempt once (statutory declaration or copy provided by student) in a calendar year for a continuous period up to 59 days

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Entitlement to minimum wage

Minimum wage ＝ Total no. of hours worked in a wage period

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SMW rate ($28)

Example: Minimum wage ＝ 8hr x 26 days x $28 ＝ $5,824

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Entitlement to minimum wage

If wages currently payable to employee is less than SMW

Additional ＝ Minimum wage – remuneration wages currently payable to employee

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Hours worked

In accordance with the contract of employment, or with the agreement or at the direction of the employer, in attendance at a place of employment, irrespective of whether work or training is provided at the time

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Hours worked

Travelling in connection with employment, excluding travelling to and from place of residence & place of employment (other than place of employment that is outside HK & is not the usual place of employment)

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Hours worked

MWO does not give an exhaustive list of the circumstances of hours worked for computing SMW

If the time in question is regarded as hours worked by employee under employment contract or agreement with employer, it is included in computing SMW

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Wages

Minimum wage is calculated on the basis of hours worked

Payment for time that is not hours worked is not counted as wages payable

Examples: rest day pay, holiday pay, annual leave pay, maternity leave pay, sickness allowance, etc

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Wages

The Employment Ordinance does not stipulate that meal breaks and rest days are with or without pay

These all along are employment terms to be agreed between employers and employees

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Record of total number of hours worked

If wages payable to employee in respect of any wage period are less than $11,500 per month, the wage and employment records include total number of hours worked by employee in that wage period

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Thank you