ILO-en-strap
NORMLEX
Information System on International Labour Standards
NORMLEX Home > Country profiles >  > Comments > All Comments

Weekly Rest (Industry) Convention, 1921 (No. 14) - Hong Kong Special Administrative Region (RATIFICATION: 1997)

DISPLAYINEnglish - French - Spanish

CMNT_TITLE

Previous comment
Articles 4 and 5 of the Convention. Total or partial exceptions – Compensatory rest. Further to its previous comments, the Committee notes that the Government in its report indicates that: (i) the existing provisions of the Employment Ordinance (EO) (Chapter 57) stipulates that no employers shall require an employee to work on any of his rest days except in the event of breakdown of machinery or plant or other unforeseen emergency of any nature and in which case, the employer shall arrange compensatory rest days for the employee within a specified period (section 19 of the EO); and (ii) employees who are deprived of their statutory rest days or are required to work involuntarily on their rest days wholly or partially may file a complaint through various means, including anonymously, to the Labour Department (LD). Nevertheless, the Committee observes that Government does not indicate whether the compensatory rest prescribed under section 19(3) of the EO also applies to employees working voluntarily on rest days either at their own request or at their employers’ request under section 20 of the EO. Therefore, the Committee requests the Government to confirm whether the compensatory rest foreseen in section 19(3) of the EO, irrespective to any monetary compensation, is also granted to employees working voluntarily either at their own request or at their employer’s request under section 20 of the EO.

CMNT_TITLE

Articles 4 and 5 of the Convention. Total or partial exceptions – Compensatory rest. The Committee recalls its previous comment with regard to voluntary work on rest days, in which it pointed out that section 20 of the Employment Ordinance (Chap. 57) that provides that an employee may, either at his/her own request or at the request of the employer, perform work on a weekly rest day without receiving compensatory rest, is not fully consistent with the Convention and its requirement for compensatory rest periods to be granted, as far as possible, in all cases of suspensions or diminutions of the weekly rest. In this connection, the Committee notes the comments made by the Hong Kong Confederation of Trade Unions (HKCTU), which were received on 30 August 2013 and transmitted to the Government on 17 September 2013. The HKCTU indicates that employers can easily abuse the regulation as it is difficult to prove whether an employee accepts voluntarily or is constrained to work on a rest day, and that in many cases workers are forced to sign an agreement indicating that they are willing to work on a rest day. In its latest report, the Government indicates that the Employment Ordinance provides an employee with the liberty to negotiate on voluntary work on rest days, this flexibility aiming at catering for the divergent circumstances and preferences of individual employees across a wide variety of establishments and industries. The Government adds that the current statutory requirements provide adequate protection for employees’ entitlement to rest days while reasonably sufficient flexibility is allowed for employees to work out suitable arrangements with their employers if it is their wish to work on rest days.
While noting the Government’s explanations, the Committee observes that section 20 of the Employment Ordinance, which practically allows workers to forgo altogether their weekly rest entitlement, if they so wish, in exchange for regular pay, may lead to situations that are contrary to the very principle of weekly rest as one of the best observed of workers’ rights. As the Committee noted in paragraph 159 of its 1964 General Survey on weekly rest, if cash compensation was allowed to become the rule, it would practically have the effect of depriving the workers of the rest to which they are entitled, and this on a continuous basis. The Committee recalls, in this connection, that certain provisions of international labour Conventions seek occasionally to protect workers against what might at first sight appear to be their own “preferences”, in cases, for instance, they are tempted (for reasons of securing an additional financial gain) to renounce elementary protective rights, especially in terms of hours of work, weekly rest and annual holidays. Noting therefore the importance of a 24-hour weekly rest period as an elementary guarantee to safeguard the workers’ health and well-being, the Committee once again invites the Government to consider measures that ensure, on the one hand, that compensatory rest periods are granted in all cases of suspension or diminution of the weekly rest, and, on the other, that section 20 of the Employment Ordinance is not applied in a manner that allows workers to practically relinquish their right to weekly rest for extra pay.

CMNT_TITLE

normal'>(notification: 1997)

Articles 4 and 5 of the Convention. Total or partial exceptions. Compensatory rest. The Committee notes that section 19(3) of the Employment Ordinance provides that if any employee is required to work on a rest day by reason of a breakdown of machinery or plant or other unforeseen emergency, the employer is required to give an alternative rest day within the period of 30 days following the rest day that was worked. It further notes that section 20 of the Ordinance envisages the possibility for employees to work voluntarily on the weekly rest day, without the requirement that a compensatory rest period should be granted. While noting that this provision was the subject of a special notification when the Convention was ratified, the Committee recalls that Article 5 of the Convention establishes that provision shall be made, as far as possible, for compensatory periods of rest to be granted where the weekly rest period is suspended or diminished. The Committee draws the Government’s attention to the importance of compensatory rest periods to protect the health and well-being of workers and to the risk of abuse arising out of the difficulties involved in ensuring the truly voluntary nature of decisions by workers to work on their weekly rest day. The Committee therefore requests the Government to consider favourably the adoption of measures with a view to ensuring, on the one hand, periods of compensatory rest in all cases of the suspension or diminution of the weekly rest period and, on the other, that the application of section 20 referred to above does not give rise to a situation in which workers are entitled to purely and simply relinquish their right to weekly rest in exchange for monetary compensation, since the spirit of the Convention requires all workers to be able to benefit from a period of rest of at least 24 consecutive hours in each period of seven days. Even where the decision is voluntary, the fact of authorizing under certain conditions a working week of seven days would leave the Convention bereft of any significance.

Part V of the report form. Application in practice. The Committee notes the information provided by the Government concerning the number of labour inspectors, the number of workers covered by the Convention and the number of summonses involving failure to grant rest days which resulted in convictions. The Committee requests the Government to continue providing general information on the manner in which the Convention is applied in practice including, for instance, extracts from reports of the labour inspection services indicating the number of contraventions reported in relation to the weekly rest period and the penalties imposed, copies of collective agreements containing clauses relating to weekly rest, etc.

The Committee takes this opportunity to recall that, based on the conclusions and proposals of the Working Party on Policy regarding the Revision of Standards, the ILO Governing Body has decided that the ratification of up to date Conventions, including the Weekly Rest (Industry) Convention, 1921 (No. 14), and the Weekly Rest (Commerce and Offices) Convention, 1957 (No. 106), should be encouraged because they continue to respond to current needs (see GB.283/LILS/WP/PRS/1/2, paragraphs 17–18). In this respect, it reminds the Government that it may, if it so wishes, request technical assistance from the Office, particularly in relation to legislative amendments arising out of the possible ratification of Convention No. 106. The Committee invites the Government to envisage ratifying Convention No. 106 and to keep the Office informed of any decision adopted or envisaged in this respect.

CMNT_TITLE

The Committee notes from the Government's latest report, that 417 prosecutions were instituted during the period 1 July 1993 to 30 June 1994, against employers who employed women and young persons on rest days in contravention of the Women and Young Persons (Industry) Regulations. Furthermore, it notes that fines imposed in this regard amounted to HK$661,900.

The Committee also notes the existence of a 24-hour telephone hotline of the Labour Department to provide a direct channel through which complaints of non-compliance with the rest provisions of the Women and Young Persons (Industry) Regulations can be reported. It further notes the indication in the Government's report that the Labour Department investigates such complaints, and where necessary, employers are prosecuted for failing to comply with the law. The Committee would be grateful if the Government would supply in future reports, copies of labour inspection reports containing information and statistics on the enforcement of the leave provisions of the Women and Young Persons (Industry) Regulations.

CMNT_TITLE

Further to its previous direct request, the Committee notes with interest the formal cancellation made by the Government of the earlier modification in respect of Article 2(2) of the Convention so that the Convention is now applied to all employees, both manual and non-manual, irrespective of their earnings.

Points III and V of the report form. The Committee notes from the Government's report that, for the period 1 July 1990 to 30 June 1993, 1,273 prosecutions were instituted against employers for employing women and young persons on rest days in contravention of the Women and Young Persons (Industry) Regulations. Furthermore, it notes that fines imposed in this regard amounted to HK$2,478,150. The Government is requested to indicate any further steps taken or envisaged to ensure that the legislation applying the provisions of the Convention, in particular the Women and Young Persons (Industry) Regulations, is sufficiently supervised and enforced to assure the practical application of the provisions of the Convention; and to supply information on any measures taken with respect to the organization and carrying out of inspection in this regard. The Government is also requested to continue to provide extracts from inspection reports and relevant statistics concerning the application of the Convention with its future reports.

CMNT_TITLE

The Committee notes the indication in the Government's latest report that the application of the legislation has been extended to cover all employees, both manual and non-manual, irrespective of their earnings. It recalls the modification in respect of Article 2(2) of the Convention included in the declaration of application and subsequently amended, and invites the Government now to consider the formal cancellation of that modification.

© Copyright and permissions 1996-2024 International Labour Organization (ILO) | Privacy policy | Disclaimer