Australia’s new “right to disconnect” law that came into force on 26 August 2024 is currently a hot topic. This has given rise to discussions and debates on whether “right to disconnect” law would be feasible in Hong Kong.

Our partner, Mr Michael Szeto, was interviewed by RTHK Radio 3 and gave his views at their current affairs discussion programme, “Backchat”.

Know more about the discussion here.

What is “right to disconnect” law?

The “right to disconnect” law gives employees a legal right to ignore work communications after office hours. More than 20 countries, mainly in Europe and Latin America, have similar laws.

The Australian regime

Australia’s new “right to disconnect” law provides employees with a legal right to refuse to check, read or respond to contact (or attempted contact) from their employers or third parties (such as clients) outside their ordinary working hours, unless such refusal is unreasonable. The new law does not prohibit employers or third parties from contacting employees after working hours but the employees have the right to disconnect or not to engage provided it is reasonable.

“Contact” is not defined. Adopting a common sense approach, “contact” would include calls, emails, texts or messages (such as WhatsApp, WeChat, etc.).

Under the new law, Australia employees can refuse to engage with that contact if their refusal is “reasonable”. Again, what is “reasonable” is not defined exhaustively but the following factors must be considered: 

1.       the reason for the contact or attempted contact;

 

2.       the mode of contact or attempted contact and level of disruption it causes the employee;

 

3.       whether the employee is compensated (including non-monetary compensation) for working outside of ordinary working hours;

 

4.       the employee’s role and level of responsibility; and

 

5.       the employee’s personal circumstances including family or caring responsibilities.

 

If there is a dispute:

1.       The employer and employee must attempt to resolve their dispute at the workplace level by discussions.

 

2.       If the matter cannot be resolved, the employer or the employee can escalate the dispute to the Fair Work Commission (“FWC”).

 

(Note: The FWC is an independent workplace relations tribunal with the power and authority to regulate and enforce provisions relating to minimum wages and employment conditions, enterprise bargaining, industrial action, dispute resolution, and termination of employment.)

 

3.       The FWC has the power to consider the dispute and make orders. For example, an order for the employer to stop contacting the employee or for the employer to stop taking disciplinary action against the employee for not engaging, or for the employee to stop refusing contact.

 

4.       Failures to comply with a FWC order can result in fines of up to AUD94,000 (approximately HKD497,000) for employer or up to AUD19,000 (approximately HKD100,000) for employee.

 

This new law is a game changer. No doubt Australia employers will have to make changes (and perhaps fundamental changes for some employers) in their operations to adapt to their new law.

Would this be feasible in Hong Kong?

According to an article from SCMP, industry figures say Hong Kong is not ready to follow Australia.[1] Responding swiftly and working overtime have been part of the city’s success. One of Hong Kong’s biggest strengths is flexibility, which includes adaptable scheduling, which is especially important for communicating with countries in different time zones.

 

Can Hong Kong employees “disconnect” after office hours?

Can Hong Kong employees “disconnect” after office hours?  Do they have the legal right to ignore communications after normal working hours if they choose to?

Unlike minimum wages, there is currently no legislation governing maximum number of working hours. Whilst the employment contract may provide for normal working hours, it is often the case that the employment contract may also provide that the employee may be requested to work outside of normal working hours.

Generally speaking, save for rest days and statutory holidays (and possibly other kinds of statutory leaves) as provided under the Employment Ordinance (Cap. 57) (“EO”), there is no law prohibiting an employee from working outside normal office hours. An employee is entitled to 1 rest day in every period of 7 days. “Rest day” means a continuous period of not less than 24 hours during which an employee is entitled to abstain from working for his employer. Unlike a “rest day”, the EO does not provide any statutory definition of a “holiday”. However, in Leung Ka Lau v Hospital Authority (2009) 12 HKCFAR 924, the Court of Final Appeal held that the two terms shall bear the same meaning.

An employer may require an employee to work compulsorily on a rest day only if it is necessary by reason of a breakdown of machinery or plant or other unforeseen emergency of any nature. If an employer has required an employee to work on a rest day, the employer shall provide another rest day within the period of 30 days following the original rest day. An employee may voluntarily work on a rest day. Section 20 (Voluntary work on rest days) of the EO provides that voluntary work on rest days is permissible under certain situations.

As for statutory holidays, an employer is entitled to by notice substitute an alternative holiday. The employer shall grant an alternative holiday within a period of 60 days immediately preceding or following the statutory holiday. The EO is silent on whether employees may voluntarily work on statutory holidays.

Takeaway

Hong Kong does not have “right to disconnect” law.

Generally, save for rest days and statutory holidays (and possibly other kinds of statutory leaves), there is no law prohibiting an employee from working outside normal office hours.

“Rest day” means a continuous period of not less than 24 hours during which an employee is entitled to abstain from working for his employer. The Court of Final Appeal had held that a statutory holiday has the same meaning. Whilst employee may work voluntarily on rest days in accordance with the EO, disputes often arise between employers and employees regarding working on rest days and statutory holidays, including whether the employees worked voluntarily. In determining whether an employee undertakes the work “voluntarily”, the test is not, in our view, whether the employee worked on a rest day willingly, as opposed to reluctantly. The test is whether an employee had a genuine choice or entitlement to say “yes” or “no” without risk or fear of dismissal or detriment to his employment. It is fact sensitive and the court will need to consider all the facts and circumstances. If an employee is found to be so on the facts, then this would likely fall within section 20 (Voluntary work on rest days) of the EO and it would not be a breach by the employer. This area of law is not so straightforward and can be complicated. If in doubt, it is prudent to seek legal advice.

 

For enquiries, please feel free to contact us at:

E: employment@onc.hk                                                    T: (852) 2810 1212 W: www.onc.hk                                                                    F: (852) 2804 6311 19th Floor, Three Exchange Square, 8 Connaught Place, Central, Hong Kong

Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.

Published by ONC Lawyers © 2024