Administration steers clear of controversy over paid meal breaks and rest days

The Labour Department published a set of guidelines on Monday, citing examples intended to assist employers and employees to figure out the new statutory minimum wage that comes into effect May 1.

Unresolved, as expected, is the question of whether meal breaks and rest days ought to be paid by employers.

The matter is left for discussion among companies and their workers.

If employment contracts state that meal breaks and rest days are to be paid, employers must comply. The employer cannot alter the contract without consent of the employees.

Commissioner for Labour Cheuk Wing-hing said neither the existing Employment Ordinance nor the Minimum Wage Ordinance stipulate whether employees should be paid for meal breaks and rest days.

Where meal breaks are paid, workers will earn a pay increase of about 12 percent, he said, with a 15 percent pay increase for paid rest days.

He called on employers who can afford to do so to treat their staff well.

He stressed that staff wages should not be lower than what they receive before implementation of the law.

The government guidelines are not legally binding and any person may challenge their legality in court, Cheuk said.

Thus the government is in no position to take a stance on paid meal breaks or days off.

Neither side of the issue seems pleased with the government's failure to address the question.

Both employers and employees hoped for a clear guideline.

Both the employers and employees sides complained that the absence of clear stipulation would set off industrial disputes.

Lee Cheuk-yan of the Hong Kong Confederation of Trade Unions said the government is teaching the employers to cancel meal break pay and rest day pay.

Lee said the guidelines tell employers to clarify with the staff regarding contract alteration if they are uncertain about the contract terms or are unable to afford them.

The Hong Kong Federation of Restaurants and Related Trades expressed worries that employer-employee discussions may end up in disputes.

"We hope the government will be more specific and consider the need for legislation," said Simon Wong, its president.

A female employee at a games center told a phone-in program on Monday that she earns about HK$5,000 and looks forward to a pay raise in May.

She said she did not mind if meal breaks are paid for.

Another caller who works as a security guard said he had never been paid meal breaks, but he had hoped the law would be made clear.

The Labour Department guidelines on the calculation of the HK$28 per-hour minimum wage cites 37 examples.

They cover situations such as duty at the workplace, travel time, meal breaks, standby time and other scenarios.

Employees who are required to have meals while on duty should be paid for their meal breaks according to one of the guidelines.

Overtime hours with the consent of employers should also be counted as hours worked within the meaning of minimum wage.

Staff who arrive at the workplaces early will not be given credit for overtime hours, nor is travel time paid.

China Daily

(HK Edition 03/29/2011 page1)