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.

______________________________________________________________________

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.

For enquiries, please feel free to contact us at:

E: insolvency@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 © 2023