The Employment Laws of Hong Kong and China

In reviewing this excellent work, I can do little better than quote from the book’s foreword by the Hon Michael Kirby AC CMG (a former Justice of the High Court of Australia): a ‘trail-blazing work’. A sometimes common misconception about Hong Kong is that its laissez-fairehistory has been at the expense of, inter alia, laws governing the relationship between employers and employees. The book helps put that misconception to rest. Any reader remotely up-todate with current affairs in Hong Kong will know that the employment relationship and the laws that govern it are just as much an essential part of the lives of its inhabitants as they are in any other sensible jurisdiction. Indeed, even with Hong Kong’s ‘can do’ work ethos (a salutary lesson still to many other places in the world), employment related grievances are not uncommon and more so in challenging economic and social times; witness the recent court or tribunal disputes involving airline pilots, the doctors in public hospitals, tour guides and foreign domestic helpers (to name but a few).

The first thing that strikes the reader about this work is that it is well-written and well presented. This is not altogether surprising to anyone who knows the author and his attention to detail; even down to the care taken with individual chapter endnotes.

As the learned former judge writes in his foreword, this work will be of considerable interest to both the specialist and the general practitioner. Students of Hong Kong and PRC employment laws will also find it an invaluable guide. The book is conveniently laid out in three main parts and 10 chapters.

Part 1 contains an overview of Hong Kong’s employment laws that will be of particular interest to those foraying into this area of the law for the first time. After an overview of Hong Kong’s employment laws (Chapter 1), the author then dissects the indicia of the employment relationship with its common law principles and statutory instruments (Chapter 2). By no means an easy task and an issue that has given rise to much legal debate, Chapter 3 contains an ‘easy on the eye tour’ of the minefield that is Hong Kong’s workplace safety laws.

The reader is then confronted by Chapters 4 and 5, which for many may be the heart of the book; namely, termination of employment and wrongful dismissal respectively. Any dismissed employee with a legitimate grievance (or more likely his/her adviser) would do well to read these chapters. They contain a thorough and readable account of the general principles underpinning the termination of an employment relationship, supported by current Hong Kong case law.

For this reviewer, one of the gems of the book is Part 2, containing Chapters 6 to 8, on employment issues of particular interest to Hong Kong. If you ever have grounds to allege discrimination (Chapter 6), ‘employ’ a foreign domestic helper
(or are thinking of doing so – Chapter 7) or have ‘trade secrets’ to protect at the workplace (Chapter 8), you would be well advised to read these chapters; doing so might save you much grief and money. Indeed, allegedly errant ex-employees who run off with employers’ so-called confidential inf ormation appear to be something of a perennial feature of the Hong Kong workplace; witness the cases on point.

Part 3 of the book (containing Chapters 9 and 10 and authored by Bjorn Ahl, an impressive academic with PRC law expertise) takes the reader through an overview of the PRC employment laws; a developing body of law of increasing interest to Hong Kong employers and business folk who conduct commercial affairs over the border.

In his preface, the author states his intention that the book finds an audience among legal practitioners in Hong Kong who ‘find themselves in need of a clear and up-to-date exposition of local employment law.’ The author should not be disappointed. Indeed, his book should be of interest to anyone entering the maze that is Hong Kong’s employment related laws.

Warren P Ganesh
Solicitor (E&W, HKSAR – not in practice)
Senior Teaching Fellow
School of Law
City University of Hong Kong

February 2010 - Hong Kong Lawyer (Journal)