Cap. 63 - Trade Boards Ordinance

To provide machinery for fixing minimum wages, determining normal working hours, and fixing overtime rates in trades where the wage standards are unreasonably low. [21 June 1940](Format changes—E.R. 4 of 2021) 1. Short title This Ordinance may be cited as the Trade Boards Ordinance. 2. Trade Boards and minimum wages (1) The Chief Executive in Council may, at any time he thinks fit, by Government notification published in the Gazette, fix minimum rates of wages for any trade in Hong Kong either generally or in any specified area or district in any case in which he is satisfied that the minimum rates of wages being paid to any persons employed in any such trade are unreasonably low. Every notification fixing minimum rates of wages may be varied from time to time or revoked.(2) For the purpose of instituting, making, and conducting any inquiry that may be deemed advisable in connexion with fixing any minimum rates of wages in any trade under this Ordinance, and for reporting thereon, the Chief Executive may at any time establish for any trade, or for any branch of work in a trade, a Trade Board, consisting of members representing employers and members representing workers, in this Ordinance referred to as representative members, in equal proportions, and of appointed members, provided that the number of appointed members shall be less than half the total number of representative members. Where a Trade Board has been established for any branch of work in a trade, any reference in this Ordinance to the trade for which the Board is established shall be construed as a reference to the branch of work in the trade for which the Board has been established. [cf. 1909 c. 22 ss. 2(2), 11 & 13 U.K.](3) Women shall be eligible as members of Trade Boards as well as men.(4) The Chairman of a Trade Board shall be the Commissioner for Labour or such other public officer as the Chief Executive may appoint. (Amended L.N. 142 of 1974)(5) All members shall be appointed by the Chief Executive, but the employers and workers may nominate representatives for appointment, subject to the Chief Executive’s approval, as representative members.(6) In order to constitute a meeting of a Trade Board, at least one-third of the whole number of the representative members and at least one appointed member must be present. [cf. 1909 c. 22 s. 11(6) U.K.](7) A Trade Board for any trade shall consider, as occasion requires, any matter referred to them by the Chief Executive with reference to the industrial conditions of the trade, and shall make a report upon the matter to the Chief Executive. [cf. 1909 c. 22 s. 3 U.K.](Amended 54 of 2000 s. 3) 3. Application of Cap. 86 The provisions of sections 3 to 10 of the Commissioners Powers Ordinance* shall apply to any Board so appointed. Editorial Note: * See 1968 Extractions—Cap. 86, 1964 Revised Edition 4. Duties and powers of Trade Boards with respect to minimum rates of wages Every Trade Board shall, subject to the provisions of this section, recommended a minimum rate of wages for time-work in their trade, in this Ordinance referred to as a general minimum time-rate, and may also recommend for their trade—(a) a general minimum rate of wages for piece-work, in this Ordinance referred to as a general minimum piece-rate;(b) a minimum time-rate (which shall not be higher than the general minimum time-rate) to apply in the case of workers employed on piece-work for the purpose of securing to such workers a minimum rate of remuneration on a time-work basis, in this Ordinance referred to as a guaranteed time-rate;(c) a minimum rate (whether a time-rate or a piece-rate) to apply, in substitution for the minimum rate which would otherwise be applicable, in respect of hours worked by a worker in any week or on any day in excess of the number of hours considered by the Trade Board to be the normal number of hours of work per week or for that day in the trade, in this Ordinance referred to as an overtime rate.Any of the minimum rates aforesaid may be fixed so as to apply universally to the trade or so as to apply to any special process in the work of the trade or to any special area, or to any class of workers in the trade, or to any class of workers in any special process or in any special area. If a Trade Board report to the Chief Executive that it is impracticable in any case to fix a general minimum time-rate in accordance with this section, the Chief Executive may so far as respects that case relieve the Trade Board of their duty.(Amended 54 of 2000 s. 3)[cf. 1909 c. 22 s. 4 U.K.] 5. Penalty for not paying wages in accordance with minimum rate which has been made obligatory (1) Where any minimum rate of wages has been fixed by the Chief Executive in Council under this Ordinance, an employer shall, in cases to which the minimum rate is applicable, pay wages to the person employed at not less than the minimum rate clear of all deductions, and if he fails to do so shall be liable on summary conviction in respect of each offence to a fine at level 1 and to a fine of $50 for each day on which the offence is continued after conviction therefor. (Amended 22 of 1950 Schedule; 54 of 2000 s. 3; E.R. 4 of 2021)(2) On the conviction of an employer under this section for failing to pay wages at not less than the minimum rate to a person employed, the court may by the conviction adjudge the employer convicted to pay, in addition to any fine, such sum as appears to the court to be due to the person employed on account of wages, the wages being calculated on the basis of the minimum rate, but the power to order the payment of wages under this provision shall not be in derogation of any right of the person employed to recover wages by any other proceedings.(3) Where an employer has been convicted for failing to pay wages at not less than the minimum rate to any worker, then, if notice of intention so to do has been served with the summons, warrant, or complaint, evidence may be given of any failure on the part of the employer to pay wages at not less than the minimum rate to that worker at any time during the two years immediately preceding the date on which the information was laid or the complaint was served, and on proof of the failure the court may order the employer to pay such sum as in the opinion of the court represents the difference between the amount which, having regard to the provisions of this Ordinance, ought properly to have been paid to the worker by way of wages during those years and the amount actually so paid. [cf. 1918 c. 32 s. 9(1) U.K.](4) It shall be the duty of every employer in a trade to which a minimum rate is applicable, to keep such records of wages as are necessary to show that the provisions of this Ordinance are being complied with as respects persons in his employment, and if he fails to do so he shall be liable on summary conviction in respect of each offence to a fine at level 1 and also to a fine of $25 for every day during which the default continues after conviction. (Amended 22 of 1950 Schedule; E.R. 4 of 2021)(5) On any prosecution of a person for failing to pay wages at not less than the minimum rate, it shall lie on that person to prove that he has not paid wages at less than the minimum rate.(6) Any agreement for the payment of wages in contravention of this provision shall be void.[cf. 1909 c. 22 s. 6 U.K.] 6. Liability of agents and other persons (1) Where an offence for which an employer is by virtue of this Ordinance liable to a fine has in fact been committed by some agent of the employer or other person, that agent or other person shall be liable to be proceeded against for the offence in the same manner as if he were the employer, and either together with, or before or after the conviction of, the employer, and shall be liable on conviction to the same punishment as that to which the employer is liable.(2) Where an employer who is charged with an offence against this Ordinance proves to the satisfaction of the court that he has used due diligence to enforce the execution of the Ordinance, and that the offence was in fact committed by his agent or some other person without his knowledge, consent, or connivance, he shall, in the event of the conviction of that agent or other person for the offence, be exempt from any fine in respect of the offence, without prejudice, however, to the power of the court under section 5(2) and (3) to adjudge him to pay any sum which appears to the court to be due to the person employed on account of wages. (Amended E.R. 4 of 2021)(3) Where the immediate employer of any worker to whom a minimum rate of wages applies is himself in the employment of some other person and that worker is employed on the premises of that other person, that other person shall for the purposes of the provisions of this Ordinance relating to the penalty for not paying wages in accordance with the minimum rate be deemed to be the employer of the worker jointly with the immediate employer.[cf. 1918 c. 32 s. 5 U.K.] 7. Provision for case of persons employed by piece-work where a minimum time-rate but no general minimum piece-rate has been fixed (1) An employer shall, in cases where persons are employed on piece-work and a general minimum time-rate but no general minimum piece-rate has been fixed, be deemed to pay wages at less than the minimum rate—(a) in cases where a special minimum piece-rate has been fixed under the provisions of this Ordinance for persons employed by that employer, if the rate of wages paid is less than that special minimum piece-rate; and(b) in cases where a special minimum piece-rate has not been so fixed, unless he shows that the piece-rate of wages paid would yield, in the circumstances of the case, to an ordinary worker at least the same amount of money as the basis rate.(2) For the purpose of this section the expression basis rate (基本工資率) means the general minimum time-rate or, where a rate, in this Ordinance referred to as a piece-work basis time-rate, has been fixed by the Chief Executive in Council for the purpose of being substituted for the general minimum time-rate as the basis rate, the rate so fixed.(3) The Chief Executive in Council may fix a piece-work basis time-rate in any case in which, having regard to all the circumstances of the case, he is of opinion that the general minimum time-rate does not form a proper basis for the purposes of subsection (1)(b), and a piece-work basis time-rate may be higher or lower than the general minimum time-rate and may be fixed so as to apply universally to the trade or so as to apply to any special process in the work of the trade or to any special area, or to any class of workers in the trade or to any class of workers in any special process or in any special area. (Amended E.R. 4 of 2021)(Amended 54 of 2000 s. 3)[cf. 1909 c. 22 s. 8 U.K.] 8. Prevention of evasion Any shopkeeper, dealer, or trader, who by way of trade makes any arrangement express or implied with any worker in pursuance of which the worker performs any work for which a minimum rate of wages has been fixed under this Ordinance, shall be deemed for the purposes of this Ordinance to be the employer of the worker, and the net remuneration obtainable by the worker in respect of the work after allowing for his necessary expenditure in connexion with the work shall be deemed to be wages.[cf. 1909 c. 22 s. 9 U.K.] 9. Employers not to receive premium where minimum rates in force (1) Where a worker in any trade, being a person to whom a minimum rate of wages fixed by the Chief Executive in Council applies, is an apprentice or learner, it shall not be lawful for his employer to receive directly or indirectly from him, or on his behalf or on his account, any payment by way of premium: (Amended 54 of 2000 s. 3) Provided that nothing in the foregoing provisions shall apply to any such payment duly made in pursuance of any instrument of apprenticeship not later than four weeks after the commencement of the employment. (2) If any employer acts in contravention of this provision, he shall be liable on summary conviction in respect of each offence to a fine at level 1, and the court may by the conviction, in addition to imposing a fine, adjudge him to repay to the worker or other person by whom the payment was made the sum improperly received by way of premium. (Amended 22 of 1950 Schedule; E.R. 4 of 2021) [cf. 1918 c. 32 s. 7 U.K.] 10. Powers of officers (1) Any officer of any Government department for the time being assisting in carrying this Ordinance into effect shall have power for the performance of his duties—(a) to require the production of wages sheets or other record of wages by an employer, and records of payments made to outworkers by persons giving out work, and to inspect and examine the same and copy any material part thereof;(b) to require any person giving out work and any outworker to give any information which it is in his power to give with respect to the names and addresses of the persons to whom the work is given out or from whom the work is received, as the case may be, and with respect to the payments to be made for the work;(c) at all reasonable times to enter any factory or workshop or any place used for giving out work to outworkers;(d) to inspect and copy any material part of any list of outworkers kept by an employer or person giving out work to outworkers; and(e) to examine, either alone or in the presence of any other person, as he thinks fit, with respect to any matters under this Ordinance any person whom he finds in any factory or workshop or any place used for giving out work to outworkers, or whom he has reasonable cause to believe to be or to have been a worker in any trade to which a minimum rate under this Ordinance is applicable, and to require every such person to be so examined, and to sign a declaration of the truth of the matters in respect of which he is so examined.(2) If any person fails to furnish the means required by an officer as necessary for any entry or inspection or the exercise of his powers under this section, or if any person hinders or molests any officer in the exercise of the powers given by this section, or refuses to produce any document or give any information which any officer requires him to produce or give under the powers given by this section, that person shall be liable on summary conviction in respect of each offence to a fine at level 1; and, if any person makes, or causes to be made, or knowingly allows to be made any wages sheet, or record of wages, or record of payments, or any list of outworkers which is false in any material particular, or produces or causes to be produced, or knowingly allows to be produced any such sheet, record or list to any officer acting in the exercise of the powers given by this section, knowing the same to be false, or furnishes any information to any such officer knowing the same to be false, he shall be liable on summary conviction to a fine at level 1 or to imprisonment for 3 months. (Amended 22 of 1950 Schedule; E.R. 4 of 2021)[cf. 1909 c. 22 s. 15 U.K.] 11. Officers to produce certificates when required Every officer of any Government department for the time being assisting in carrying this Ordinance into effect, shall be furnished by the Commissioner for Labour with a certificate of his appointment, and when acting under any or exercising any power conferred upon him by this Ordinance shall, if so required, produce the said certificate to any person or persons affected. (Amended L.N. 142 of 1974)[cf. 1909 c. 22 s. 16 U.K.] 12. Power to conduct proceedings Any such officer may, although not a barrister or solicitor, prosecute or conduct before a court of summary jurisdiction any proceedings arising under this Ordinance.[cf. 1909 c. 22 s. 17(2) U.K.] 13. Consent of Commissioner to prosecution No prosecution under this Ordinance shall be commenced without the consent of the Commissioner for Labour.(Amended L.N. 142 of 1974)