Enhanced Supplementary Labour Scheme: Government’s latest attempt to address acute manpower shortages
Introduction
On 13 June 2023, the Hong Kong Government
has announced its introduction of labour importation schemes (“LIS”) for construction and transport
sectors and enhancement of the existing Supplementary Labour Scheme (“SLS”) to become the Enhanced
Supplementary Labour Scheme (“ESLS”).
This is a significant step taken by the Government to address the long-perceived manpower shortages issue in
light of the aging population and shrinking labour force. The Government said
it will consult the Labour Advisory Board and the Legislative Council Panel on
manpower, and welcomes feedback from all relevant sectors on the implementation
aspects of the LIS and the ESLS to finalise their implementation and
operational details.
Prevailing
Government’s labour policy
The prevailing Government’s labour policy
in Hong Kong is that employers should give priority to local workers first
before employing non-local personnel to work in Hong Kong as imported labour. Employers,
who are genuinely unable to recruit
local workers to fill their job vacancies, may be allowed to hire imported
worker.
The Immigration Department
processes and determines all
work visa applications in light of the prevailing Government’s policy
applicable to the particular type of work visa applied for. In doing so,
all approval of applications is entirely
discretionary and the Director of Immigration reserves absolute discretion to refuse any
application even if the application meets all eligibility criteria.
The
LIS
The Chief Executive in Council had
endorsed the introduction of the LIS for construction and transport sectors
under section 14(3) of the Employees Retraining Ordinance (Cap. 423), which is intended
to provide greater flexibility and adopt more streamlined procedures than the
existing SLS.
Employers of the construction and
transport sectors, who intend to import labour under the newly introduced LIS, should
take note of the following key features and parameters:
1.
Quotas system: The total quota for the construction
sector is 12,000. Whereas the total quota for the transport sector is 8,000, of
which 6,300 are for the aviation industry and 1,700 for the public light
bus/coach trade.
2.
Manning
ratio: The manning ratio in general is on a par with
that of the SLS, i.e. 1:2 (one imported labour to two full-time local staff).
3.
Standard
Employment Contract: Employers must engage the imported
labour under a standard employment contract1 and pay the Employees
Retraining Levy at the start of the contract period.
4.
Wage:
The wage levels of imported labour must be no less than the median monthly
wages of relevant posts in Hong Kong.
5.
Local
recruitment: Requirement of local recruitment is deemed
fulfilled if the applying employers submit proof of recruitment conducted
within four months preceding an application through channel(s) specified by the
concerned bureaux/department(s).
6.
Accommodation:
Employers are allowed to (i) arrange for the imported labour accommodation in
Hong Kong, (ii) provide accommodation for the imported labour on the Mainland,
or (iii) let the imported labour reside in their residential premises on the
Mainland.
7.
Prior
approval for Mainland residents: If the
prospective imported workers are Mainland residents, employers must recruit the
imported
workers through the foreign labour service co-operation enterprises approved by
the relevant Mainland authorities.
The implementation details of the LIS for
construction and transport sectors are yet to be released. It is expected that they will be in line with
the criteria under the existing SLS.
ESLS
Under the existing SLS, employers may
apply to import workers at technician level or below to fill vacancies which
they have genuine difficulties in recruiting suitable staff locally save and
except for 26 job categories and unskilled/low-skilled level posts which are
generally excluded from the SLS, such as sales representative and sales
assistant, clerical worker, and receptionist etc.2 Under the
enhancement of the SLS, the general exclusion will be suspended for a period of
two years. This means employers can also apply to import workers under the ESLS
for the said posts under the existing exclusion.
The other key requirements of the existing
SLS will remain unchanged. Employers are still required to meet the existing
requirements such as engaging the imported workers under a standard employment
contract, paying the imported workers under the ESLS at least the median
monthly wages of local workers in comparable positions and be accorded no less
favourable treatment as that enjoyed by local workers under the labour laws,
and paying a levy that goes to the Employees Retraining Board to augment the
provision of training and retaining for local workers.
Applications should be made to the
Supplementary Labour Division of the Labour Department. Upon approval,
employers have to apply to the Immigration Department to process the visa/entry
permit application of the prospective imported worker. Acceptance of an
employer’s application under the SLS does not guarantee an approval of the
Immigration Department.
Key
takeaways
The Government intends to launch the LIS
for construction and transport sectors in July 2023 and to launch the ESLS in
the third quarter of 2023. Labour shortage is no new topic to Hong Kong.
Imminent effective solutions have to be implemented to address the manpower
shortage problem but at the same time not crossing the fine line of depriving job
opportunities of the local workers.
The Immigration Department processes and
determines all work visa applications not just for foreign workers under the
LIS, SLS and ESLS, but also the General Employment Policy (“GEP”), which is commonly applied for by
the employer sponsors for employing non-local personnel who possesses special
skills, knowledge or experience of value to and not readily available in Hong
Kong. It is noteworthy that all approval of applications is entirely
discretionary and even if an application meets all eligibility criteria, the
Director of Immigration reserves absolute discretion to refuse any application.
Employer sponsors will need to tactfully explain to and persuade the
Immigration Department that the relevant employee applicant meets all
eligibility criteria and should bear in mind their application will be subject
to careful scrutiny. When in doubt, it is advisable for employers to seek legal
assistance.
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1 i.e. the “standard employment contract” provided by the Labour
Department.
2 The 26 job categories normally
excluded from the SLS include: sales representative, sales assistant,
waiter/waitress, receptionist, cashier, junior cook, food processing worker,
clerical worker, teller, computer/key punch operator, telephone operator, linen
attendant, washer, presser, hair stylist, warehouse keeper, cutter, cutting
room operative, inspection operative, delivery worker, driver, demolition
worker, mason, spray paint worker, drain layer, leakage worker.
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Published by ONC Lawyers © 2023 |