Articles

Employment & Business Immigration

Employment & Business Immigration

Driving for The Boss or Driving as a Boss?

Friday, 18 November 2016 12:47

By Adam Hugill, Partner

The Uber world did a double turn on October 28 when an UK employment tribunal decided that Uber drivers are workers and not independent contractors, stating in its often times faintly mocking judgement, "the notion that Uber in London is a mosaic of 30,000 small businesses linked by a common platform is to our minds faintly ridiculous."  

The judgement was based in part upon the fact that the tribunal found Uber enforced contract terms on drivers that resort to "fictions, twisted language and even brand new terminology", all for the purpose of denying that Uber is running a transportation business. 

The tribunal's analysis revealed that in fact, Uber does run a transportation business through which its drivers provide the skilled labour. The tribunal's considerations included the fact that Uber: interviews and recruits drivers, controls key information (such as passengers' names), requires drivers to accept trips and/or not cancel trips, sets the default route, fixes fares, subjects drivers to a de facto performance management procedure, determines issues about rebates, accepts the risk of loss, handles complaints by passengers and reserves the right to amend drivers' terms unilaterally.

The tribunal’s finding that Uber drivers are workers paves the way for claimants to continue proceedings pursuant to the National Minimum Wage Regulations 2015, The Working Time Regulations 1998 and the Employment Rights Act 1996. Uber intends to file an appeal. In any event, the parties were asked to deliver written representations by December 2 to the tribunal as to the best way forward to assess drivers’ claims.

Does the UK decision have implications for Uber in Hong Kong? It is unlikely the employment tribunal’s finding will have immediate or even significant implications for Uber drivers in Hong Kong. Although the tribunal’s analysis is derived from a consideration of how much control Uber exercises over its drivers and this same control may very well be exercised by the company in Hong Kong, employment legislation differs greatly between the UK and Hong Kong:

  1. Hong Kong’s employment laws only provide for two types of working people – employees and independent contractors. The notion of a “hybrid” – the worker, does not exist in Hong Kong legislation.
  2. Hong Kong has no legislation to govern standard or minimum working hours while the UK passed The Working Time Regulations 1998. The UK tribunal considered at length the question of “working time” for Uber drivers and concluded that, “…the Uber driver’s working time starts as soon as he is within his territory, has the App switched on and is ready and willing to accept trips and ends as soon as one or more of those conditions ceases to apply.” This finding was for the purpose of allowing claims to proceed pursuant to The Working Time Regulations 1998. There is no comparable law in Hong Kong.
  3.  UBS’ annual “Price and Earnings” study found that Hong Kongers work the longest hours in the world, out of all 71 surveyed countries. Moonlighting in Hong Kong is a way of life and for Hong Kong Uber drivers, this is no exception. They bring their own tools of trade to the job (their cars), choose their own hours and take on additional employment.

The argument that Uber drivers are anything but independent contractors under Hong Kong law is as difficult as fitting a square peg in a round hole.

 

By Paul Firmin and Scherzade Burden


Only 2 days after the District Court Erwiana decision, a judgment was handed down in the High Court concerning a maid and her application for leave to appeal a decision of the labour tribunal that received almost no publicity.

On 10th February 2015, District Court Judge Amanda Woodcock found Law Wan-Tung, the employer of Indonesian Foreign Domestic Helper (FDH) Erwiana Sulistyaningsih, guilty of 18 charges ranging from grievous bodily harm to non-payment of employment compensation insurance. Law was subsequently sentenced to six years’ imprisonment.

Judge Woodcock commented when handing down the verdict that the risk of similar situations recurring in Hong Kong could be reduced if FDHs were permitted by the law to live outside the employer’s residence in their own accommodation.

At present in Hong Kong, it is a term and condition in the contract between employer and FDH that the FDH “shall work and reside in the Employer’s residence”. A breach of this term and condition can result in criminal prosecution for both Employer and FDH. The Employer may be liable to a fine and/or imprisonment and, for example, if the Employer is an expat on a working visa they can lose their work visa and rights associated with that work visa. The FDH can be sent straight back to their place of origin and may not be permitted to obtain work in Hong Kong again.

Hong Kong has long had a culture of employing FDHs to work in local Chinese and Expats’ homes in Hong Kong. An FDH is typically female, Filipino or Indonesian, employed to work for a family and make up approximately 3% of the population of Hong Kong.

The Hong Kong Immigration Department issues a large volume of guidance in relation to the employment of FDHs in Hong Kong, to assist both in the process of applying for a suitable visa for an FDH, but also purportedly to safeguard the FDHs’ rights and clarify the employers’ obligations.

Two of the obligations as specified in the Immigration Department’s Guidebook for the Employment of Domestic Helpers from Abroad are that the FDH must work and live in the employer’s residence and the FDH must be provided with “suitable accommodation and with reasonable privacy”. As a footnote, the Guidebook gives two examples of what is not considered to be suitable accommodation:

The Helper having to sleep on made-do beds in the corridor with little privacy or sharing a room with an adult or teenager of the opposite sex.

Further than these examples, there is no other guidance on what is “unsuitable” accommodation for an FDH in Hong Kong.

Only two days after the Erwiana decision, an application for leave to appeal a decision of the labour tribunal came before the High Court of Hong Kong on 12th February 2015 brought by an an FDH called Rowena C Cuevas. Ms Cuevas, who left her employer after allegedly being maltreated, claimed she had been constructively dismissed from her employment as a result of various incidents and the behaviour of her employer.

One of Ms Cuevas’ grievances was that she had not been provided with suitable accommodation. In her evidence before the Minor Employment Claims Adjudication Board Ms Cuevas said that she had to sleep in the kitchen every other night on a foldable bed.

The decision of the Board was to dismiss the claim, since they disbelieved the maid’s complaints about long working hours and insufficient food, and they found the complaint of verbal abuse to be unsupported by evidence. The Board considered that “being scolded for not following the former employer’s lawful and reasonable orders does not amount to verbal abuse”!

With regard to the suitability of the accommodation the FDH was provided, the Board found the place in the kitchen for sleeping to be ‘decent’. 
Following the decision of the Board Ms Cuevas brought an application for leave to appeal before the High Court.

On 12th February 2015, High Court Mr Justice Chung dismissed the application for leave to appeal and in so doing said that the Board’s conclusion regarding the suitability of the accommodation could not be faulted:
[The photographs] show a foldable bed which was well-built, and the kitchen to be spacious and clean, at least by Hong Kong’s living conditions.
I also note that, because the sleeping arrangement in the kitchen has been found to be “decent”… such an arrangement might well still be found not to be serious enough to justify a finding of constructive dismissal…

No consideration was given by Mr Justice Chung as to whether “decent” accommodation is in fact “suitable” accommodation and with reasonable privacy for an FDH. Arguably, these are quite different as the kitchen may well have been “decent” – almost certainly it will have been pristine since it would inevitably be the FDH’s job to clean the kitchen – but it does not necessarily follow that the kitchen was therefore “suitable” for her to sleep in on the fold away bed.

The Judge missed a golden opportunity to send the message to all employers of FDHs that making a maid sleep in the kitchen is just another form of abuse that will not be tolerated by the Courts in Hong Kong.

The verdict in the Erwiana case and the comments made by Judge Woodcock do not sit easy with the decision by Mr Justice Chung. At times, it seems as if the Courts are taking two steps forward and one step back when it comes to the treatment of FDHs in Hong Kong.

When the rights of FDHs in Hong Kong are at the forefront of the international media, it is surprising that a Hong Kong High Court Judge could interpret the suitability of accommodation for an FDH in such a broad manner. It remains to be seen whether Ms Cuevas will be successful in reviving her claim for constructive dismissal with the further assistance of Bethune House Migrant Women’s Refuge, and only time will tell whether Hong Kong’s Judiciary is doing enough to uphold the rights and wellbeing of its large migrant workforce. 

By Adam Hugill


The Privacy Commissioner investigated and upheld complaints by two individuals against a well-known Hong Kong fitness chain regarding the collection of excessive personal data.  The Privacy Commissioner determined that is was unnecessary and excessive for the fitness chain to collect full dates of birth and copy Hong Kong ID cards / Home Visit Permits for the purposes of membership applications and renewals.

The issue investigated centered on Data Protection Principle 1 of the Personal Data (Privacy) Ordinance (“DPP1”).  DPP1 requires that personal data may only be collected for lawful purposes that are directly related to a function or activity of a data user (in this case the data user was the fitness chain).  Critically DPP1 goes on to state that the data collected cannot be excessive in relation to the purpose for its collection

Hong Kong ID Card – Highly Sensitive Personal Data

Because of its uniqueness, the Hong Kong ID card number is considered highly sensitive personal data.  Therefore, in addition to DPP1, the Privacy Commissioner has also issued a Code of Practice on the Identity Card Number and other Personal Identifiers (“the Code”).  In short, this Code provides that data users should not collect Hong Kong ID card numbers or copies, except in certain limited circumstances.  Moreover, because the Hong Kong ID card contains birthday information and a photograph of the holder, in addition to the unique ID number, a greater level of protection is required and, therefore, the general presumption of the Code is not to collect Hong Kong ID card copies.

Investigation and Findings

In response to the Privacy Commissioner’s investigation into each of the complaints, the fitness chain submitted that it was necessary to collect:

  • dates of birth for age verification (to ensure that an applicant was not a minor) and for the marketing of special birthday offers and promotions and/or designing age specific products and services;
  • Hong Kong ID card numbers to establish a legal relationship, use in possible legal action and for identifying members (due to the fact that it allowed members to sign up using an alias); and
  • Hong Kong ID card copies for the same reasons as it collected the numbers, but also for the purposes of internal administration and audit and the prevention of employee fraud (via the submission of fraudulent memberships by sales staff).

 

The Privacy Commissioner concluded:

Collection of dates of birth

  • that it was not necessary to collect dates of birth for the purposes of age verification because enrollment applications were done in person and an applicant’s age could be confirmed on the spot without the need to record the date of birth;
  • special birthday offers and promotions were provided for members’ month of birth, it was therefore, unnecessary to collect a member’s full date of birth when the month of birth only would have been sufficient; and
  • it would have been sufficient to collect members’ age range, rather than exact ages for the purpose of designing age specific products and services.


Collection of Hong Kong ID card numbers

  • that the collection of Hong Kong ID card numbers to establish or to evidence a legal right, interest or liability of the part of the members was justified.

Collection of Hong Kong ID card copies

  • that it would have been more reasonable and practicable to collect a member’s real name rather than an alias, removing the need to retain the Hong Kong ID card copy for the purposes of identification;
  • less privacy intrusive alternatives could be used to audit membership income; and
  • there was no evidence to show that a less privacy intrusive means of detecting or preventing employee fraud would not work.

In summary, requesting Hong Kong ID card copies and Home Visit Permit copies was unnecessary and the collection of dates of birth was excessive and, therefore, such collections by the fitness chain were in breach of DPP1.

As a result of the finding, the fitness chain was required to remedy the breaches, which included ensuring the destruction of some 200,000 Hong Kong ID card copies belonging to current and former members.  This represented a significant (and expensive) undertaking for the fitness chain which estimate that it would take 2,500 – 3,000 hours to complete the destruction exercise!

Lessons to Learn

The Privacy Commissioner noted that while copies of Hong Kong ID cards are widely used by many organisations in Hong Kong as documentary proof of identity, the indiscriminate collection and improper handling of Hong Kong ID card copies could duly infringe the privacy of the individuals and create opportunities for fraud.  In his final comments, the Privacy Commissioner issued a strong warning to all data users:

“When it comes to authentication, [data users] tend to require the strongest level of authentication regardless of the nature of the transaction.  The over-reliance of production of Hong Kong ID card number and Hong Kong ID card copy for identity authentication is a common phenomenon in Hong Kong.  It amounts to over-kill and the trend must be reversed”.

This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.

By Adam Hugill


The maximum level of relevant income for the purpose of MPF contributions will increase from HK$25,000 to HK$30,000 per month with effect from 1 June 2014.

The effect of the increase will mean that the monthly employer and employee contributions for employees earning HK$30,000 or more per month will increase from HK$1,250 each per month to HK$1,500 each per month.

The contribution rate for employees earning less than HK$30,000 remains unchanged at 5% of relevant income.  Employees earning less than HK$7,100 do not need to make MPF contributions (although employer contributions must still be made).


This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.

By Adam Hugill


Following a two month investigation, the Privacy Commissioner has published his investigation report into the use of “Blind Ads” - Unfair Collection of Personal Data by the use of “Blind” Recruitment Advertisement – Investigation Report 29 May 2014.  Notwithstanding guidance having been in place since 2000, so far every employer investigated has been found to be in breach of the Personal Data (Privacy) Ordinance (the “Ordinance”) and 48 Enforcement Notices have been issued.


What is a Blind Ad?

A “Blind Ad” is a recruitment advertisement that does not identify the name of the employer or a recruitment agent.  A Blind Ad itself does not breach the Ordinance, the breach occurs if the advertisement solicits applicants to provide personal data to the potential employer (e.g. by asking for CVs or resumes).

Blind Ads are of particular concern because they can be used unscrupulously as a means for collecting personal data that could then be used for direct marketing or fraudulent activities.  The Commissioner’s Code of Practice on Human Resource Management issued in 2000 specifically cautions against the use of Blind Ads that solicit personal data.
Not all Blind Ads breach the Ordinance.  The Commissioner is aware that it may be necessary to advertise a role while concealing the identity of the employer (for example, when looking to replace existing staff).  In this regard, Blind Ads that simply ask applicants to contact a number or email address for the purposes of obtaining further information about the employer or an application form will not breach the Ordinance because they are not soliciting personal data.


Investigation

Following a self-initiated survey by the Commissioner of seven Hong Kong recruitment media during just one week in March 2014, 311 Blind Ads were identified and 71 random cases were investigated.

During the course of the investigation, some of the employers attempted to defend the use of Blind Ads.  Defences fell into three categories: (i) ignorance; (ii) blaming the publisher; or (iii) asserting that there was no intention to solicit personal data.

At the time the report was published, investigations into 48 employers had been completed and all 48 were found to have breached the Ordinance.  All of the employers were issued with Enforcement Notices for the unfair collection of personal data and contravention of the Ordinance.

In many of the defences, employers asserted that the recruitment media should have an understanding of what constitutes a breach and they should have advised on the wording of the advert.  Ignorance and blaming the publisher were flatly rejected as defences by the Commissioner and the Commissioner noted that he did not have any power over the recruitment media because they were not data users.  He did, however, urge the recruitment media, as the gatekeepers to compliance, to step up efforts in identifying advertisers, screen advertisements and consider refusing to post Blind Ads that solicit personal data.


Implications

The Commissioner hopes that his report will serve to not only highlight the problem of Blind Ads but also educate applicants and promote employers’ compliance with the Ordinance and in particular the six data protection principles:
•    DDP1: the lawful and fair collection of data with individuals being informed of the purpose for which their data is collected and used;
•    DDP2: ensuring the accuracy of personal data and deleting data once its purpose has been fulfilled;
•    DPP3: using data for only the purpose for which is was collected, unless express consent is given for the data to be used for another purpose;
•    DPP4: ensuring that personal data is protected against unauthorised or accidental access, processing or erasure;
•    DPP5: the formulation of policies and practices in relation to personal data; and
•    DPP6: granting individuals the right of access to and correction of their personal data.

This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.

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