Employment contracts with short duration or working hours: How Hong Kong’s 4-18 Rule Affects Grassroots Working Women and the Prospects for Reform

Abstract

Under the Hong Kong Special Administrative Region’s (“HKSAR”) employment law, entitlement to other than basic statutory employment benefits and protections is dependent upon a worker being employed under what is termed a “continuous contract of employment”. In order for a worker to qualify as such, the Employment Ordinance (Cap 57) (“EO”), requires that a worker be employed by the same employer for four or more consecutive weeks and work at least 18 hours in each of those weeks (“the 4-18 Rule”). The 4-18 Rule thus provides employers with a means to avoid providing their workers with benefits and protections by intentionally arranging it so that they work less than 18 hours per week and by using successive, short, fixed-term contracts of less than 4 weeks’ duration. In March 2021, the Census and Statistics Department of Hong Kong published a Thematic Household Survey Report (“the Report”) that looked at workers who did not meet the 4-18 Rule, defining them as “employees engaged under employment contracts with short duration or working hours” (“SDWH”). According to the Report, the largest number of SDWH are service and sales workers, with almost half earning less than HKD 400 per day. The Hong Kong Women Workers’ Association (“HKWWA”), a HKSAR NGO with a mission to assist and empower female grassroots workers, serves this very demographic. HKWWA’s clients come from amongst the poorest and most socioeconomically disadvantaged households in the HKSAR; many of whom do not meet the 4-18 requirement and earn a daily wage at a level that is only slightly above the statutory minimum. Starting with a qualitative historical analysis, this paper will review the implementation and application of the 4-18 Rule in the HKSAR. This will include an analysis of: the HKSAR’s compliance (or lack thereof) with its international obligations as a signatory to the International Covenant on Economic, Social and Cultural Rights and relevant labour instruments as a result of the 4-18 Rule; how the both the executive and legislative branches of the HKSAR Government have considered the desirability of and possibilities for reform of the 4-18 Rule; and judicial decisions regarding the application of the 4-18 Rule and the lawfulness of employer’s arrangements designed to avoid the 4-18 Rule. Building on the above, the paper proposes to place the analysis of the 4-18 Rule and the issue of potential reform within an intersectional framework focusing on inequalities of gender, income and demographics (e.g., single working mother households). To assist in this analysis, real-life cases handled by the HKWWA, along with narrative accounts of the experience of HKWWA’s front-line workers as to the effects of the 4-18 Rule on its clients/SDWHs will be presented and explored. Finally, the paper will consider the proposed alternatives for reform as well as those not yet considered and recommend a way forward for the 4-18 Rule in the HKSAR. Where relevant, examples from comparative jurisdictions such as Singapore, Taiwan and Malaysia, will be used.