Cap. 78 - Contracts for Employment Outside Hong Kong Ordinance

To control contracts of employment entered into in Hong Kong by employees performing primarily manual work and certain other employees who are proceeding outside Hong Kong for employment. (Amended 48 of 1985 ss. 2 & 15; 33 of 1992 s. 2) [1 November 1965] L.N. 135 of 1965(Format changes—E.R. 5 of 2021) Part I Preliminary 1. Short title This Ordinance may be cited as the Contracts for Employment Outside Hong Kong Ordinance.(Amended 48 of 1985 s. 3) 2. Interpretation In this Ordinance, unless the context otherwise requires—Commissioner (處長) means the Commissioner for Labour;dependant (受養人) means the spouse of an employee, and his or her children, step-children, and lawfully adopted children, who are unmarried and under the age of 16 years; (Amended 33 of 1992 s. 3)employee (僱員) means a person who has entered or is about to enter the employment of another under a contract to which this Ordinance applies; (Amended 33 of 1992 s. 3)manual work (體力勞動工作) includes personal and domestic service. (Replaced 33 of 1992 s. 3)(Amended 48 of 1985 s. 4) 3. Delegation by Commissioner 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. Contracts to which the Ordinance applies (1) Subject to subsection (2), 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 who is not in Hong Kong and not carrying on a business in Hong Kong where the contract is to be performed, whether wholly or partially, outside Hong Kong. (Amended 48 of 1985 s. 15)(2) This Ordinance shall not apply in respect of— (Amended 33 of 1992 s. 4)(a) persons employed for service as members of the crews of ships or aircraft;(b) (Repealed 56 of 2000 s. 3)(c) any person or class of persons migrating for employment whose admission to the place of immigration will be granted on a permanent basis; (Amended 48 of 1985 s. 5; 56 of 2000 s. 3)(d) any person who does not perform primarily manual work and whose wages exceed an amount set by the Secretary for Labour and Welfare by notice in the Gazette. (Added 33 of 1992 s. 4. Amended L.N. 106 of 2002; L.N. 130 of 2007)(Amended 33 of 1992 s. 4) Editorial Note: * Commencement date: 1 November 1965. Part II Control of Contracts for Employment Outside Hong Kong (Amended 48 of 1985 s. 6) 5. Contracts to be in writing and to contain certain particulars (1) Every contract to which this Ordinance applies shall be in writing, and, before the departure of the employee from Hong Kong, shall be signed by the employee and by the employer or other person acting on behalf of the employer. (Amended 48 of 1985 ss. 7 & 15)(1A) An employee who is unable to sign a contract may indicate his assent by affixing his thumb print in ink. (Replaced 33 of 1992 s. 5)(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 employee and particulars of the place of engagement and the place of origin of the employee 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 employee may be called on to work and of his entitlement in respect of rest days, paid holidays and annual leave, the terms of which shall not be less favourable than those laid down in the Employment Ordinance (Cap. 57);(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 employee, including that the employer shall give the employee a minimum of 1 month’s notice or wages in lieu of notice to terminate the contract otherwise than by a summary dismissal;(h) a stipulation that the contract shall not be transferred from the employer to any other employer except with the consent of the employee 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 place in which the contract is performed for the time being responsible for matters pertaining to employment; (Amended 56 of 2000 s. 3)(i) particulars of the measures to be taken to provide for the welfare of the employee 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 employee arising out of and in the course of the employment, and the provision of food and quarters;(ia) in addition to the particulars required under paragraph (i), the contract shall provide that where the employee suffers personal injury by accident or occupational disease arising out of or in the course of employment, the employer shall defray the expenses necessarily incurred by the employee on account of medical treatment, including maintenance in hospital, during the employee’s incapacity, pay or arrange with the appropriate authority for payment of compensation in accordance with the law of the place of employment or, if no law on compensation exists, the employer shall pay compensation not less favourable than that laid down in the Employees’ Compensation Ordinance (Cap. 282) and be responsible for all expenses incurred whenever the employee is required to undergo a medical assessment for the purpose of employees’ compensation and that where the employee is ill or suffers from an accident not attributable to his employment, the employer shall provide free medical attention and maintenance in hospital to the employee while he is incapacitated. In the event of illness or incapacity not attributable to the employee’s employment, the employer shall pay the employee, as a minimum, full wages for the first month of incapacity and half wages for at least 3 months thereafter; (Added 33 of 1992 s. 5. Amended 56 of 2000 s. 3)(j) particulars relating to the passage of the employee and his dependants to and from the place at which the contract is to be performed and an undertaking that the passage of the employee 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 employee and his dependants shall be provided by or on behalf of the employer free of charge to the employee and his dependants;(k) an undertaking that, upon the termination of contract, the employee, if he so requests the employer within 3 months after such termination, shall be repatriated at the employer’s expense (which shall include travelling and subsistence 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 employee’s own choice or for reasons of force majeure) to his place of engagement or, at the employee’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)(l) an undertaking that in the event of the death of the employee 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 employee, be repatriated at the employer’s expense (which shall include travelling and subsistence expenses referred to in paragraph (k)) to the employee’s place of engagement or, at their request, to the employee’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 employee 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 employee 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 employee 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.(Amended 33 of 1992 s. 5) 6. Presentation of contract for attestation Every contract to which this Ordinance applies shall be presented to the Commissioner for attestation before the departure of the employee from Hong Kong.(Amended 48 of 1985 ss. 8 & 15; 33 of 1992 s. 6) 7. Effect of non-compliance with section 5 or 6 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 employee from Hong Kong,it shall not be enforceable against the employee and no action shall be maintainable against the employee 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 employee 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 & 15; 33 of 1992 s. 7) 8. Power to require bond or guarantee for due performance of contract 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 & 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 employee and his dependants (if any) contained in the contract pursuant to paragraph (k) or (l), 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.(Amended 33 of 1992 s. 8) 9. (Repealed 31 of 1981 s. 65) 10. Medical examination prior to attestation Every employee 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 of 1985 s. 11; 33 of 1992 s. 9) 11. Attestation of contracts (1) Before attesting any contract pursuant to section 6, the Commissioner shall satisfy himself that—(a) the employee 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 employee has fully understood the terms of the contract;(c) the contract is in accordance with the requirements of this Ordinance;(d) in relation to the employee, there has been no contravention of any of the provisions of section 51 of the Employment Ordinance (Cap. 57); (Amended 38 of 1968 s. 37)(e) the provisions relating to medical examination set out in section 10 have been complied with and the employee is in a fit condition to perform the contract;(f) any bond or guarantee required to be furnished has been furnished in accordance with section 8; and (Amended 21 of 2024 s. 5)(g) the employee has declared himself not bound by a previous engagement. (Amended 21 of 2024 s. 5)(h) (Repealed 21 of 2024 s. 5)(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 employee or do not adequately protect the employee’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 of 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 employee; and(b) retain one copy in safe custody for a period of not less than 6 years.(Amended 33 of 1992 s. 10) 12. Capacity to enter into contract 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 place in which the contract is to be performed. (Amended 56 of 2000 s. 3)(Replaced 48 of 1985 s. 12) 13. Maximum duration of contract 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 employee is not accompanied by any dependants, or 3 years if the employee is accompanied by a dependant or dependants; or (Amended 33 of 1992 s. 11)(b) the maximum period prescribed by the law of the place in which the contract is to be performed, (Amended 56 of 2000 s. 3)whichever is the less. 14. Offence where contract not attested etc. before departure of employee 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 employee from Hong Kong to take up employment under the contract, (Amended 33 of 1992 s. 12)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 at level 5.(Replaced 48 of 1985 s. 14. Amended E.R. 5 of 2021) 15. Counselling etc., persons to evade Ordinance 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 at level 5.(Added 48 of 1985 s. 14. Amended E.R. 5 of 2021) 16. Defence A defendant shall not be convicted of an offence under section 14 or 15 in relation to a person migrating for employment if he satisfies the magistrate that at the time the offence is alleged to have been committed he believed on reasonable grounds that in relation to the person migrating admission to the place of immigration would be granted on a permanent basis.(Added 48 of 1985 s. 14. Amended 33 of 1992 s. 13; 56 of 2000 s. 3) 17. Applications to contracts of re-engagement 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) 18. Limitation on commencement of proceedings (1) An information or complaint relating to an offence under this Ordinance may be tried if it is laid or made, as the case may be, at any time within 1 year after the commission of the offence.(2) This section shall not apply in relation to an offence committed before the commencement* of the Contracts for Employment Outside Hong Kong (Amendment) Ordinance 1992 (33 of 1992).(Added 33 of 1992 s. 14) Editorial Note: * Commencement date: 1 May 1992.