【社評雙語道】改善「散工」福利 保障僱員權益
【原文】摘錄自2024年2月2日香港《文匯報》:勞顧會於2月1日就檢討《僱傭條例》下「連續性合約」規定（俗稱「418」規定）達成共識，將有關規定放寬至四星期總工時滿68小時便被視為以「連續性合約」受僱，可享有一系列僱傭福利。相關修訂有助加強保障較短工時「散工」的權益，政府應盡快開展相關的法例修訂工作，爭取盡快落實。
與此同時，政府應該看到，本港在保障僱員權益方面還存在一系列短板，有必要全面檢討僱員政策，跟上全球更加重視保障僱員權益的營商步伐，尤其是要適應新技術的發展令法例與時俱進。商界亦應該看到，和諧的勞資關係有利於締造良好的營商環境，令大家都得益。
根據現行規定，僱員如受僱於同一僱主工作4星期或以上，而每星期工作滿18小時，便被視為以「連續性合約」受僱，可享有一系列僱傭福利，例如法定假日薪酬、有薪年假及疾病津貼等。但過往有僱主為了逃避提供福利，刻意安排員工於第四周的工作時數少於18小時，是名副其實的走「法律罅」。特區政府在去年的施政報告中提出檢討「418」規定，現在將規定改為四星期合計滿68小時就可享受福利，條件較過往寬鬆，有助加強保障較短工時僱員的權益，新規定在保護僱員權益上邁進了一步。
但應該看到，本港在保障僱員權益上仍然存在一些短板，例如工時過長、產假和侍產假短，加班補助、節假日補助等方面都沒有足夠保障，被指本港對僱員保障較內地和海外地區有所不足。其實，近年特區政府在提升僱員權益上做了不少工夫，在強積金對沖安排等方面取得了突破，但仍需要更系統、更全盤地考慮保障僱員權益的政策。
修改「418」規定的初衷是為了更好保障工時較短的僱員，但近年「零工經濟」發展迅速，而且形式愈來愈複雜多樣。參考自僱人士的相關統計數據。2019年本港有超過22萬名自僱人士，至2021年已有逾28萬名自僱人士。開網約車、送外賣等新工作形式，仍然得不到僱員權益保障。加上現在愈來愈多企業推行「在家辦公」，有些老闆因此推行「假自僱」，逃避給予僱員福利待遇。
事實上，因應新興經濟模式，世界各地陸續修訂保障「散工」權益的條例。以內地為例，近年已要求企業為外賣員購買社會保險。美國紐約市將網約車司機工傷賠償基金的範圍擴大，讓網約車司機可獲工作者賠償保險、身故賠償及視力護理等醫療福利。相對而言，本港確有必要以更具前瞻性的思維，跟上整體經濟模式進步的步伐。
對於新的方案，有資方代表表示「無奈接受」，認為新規定對較多聘請「散工」的餐飲、清潔、建築等行業影響較大，這種想法是只看到付出的一面，沒有看到獲益的一面。尤其是現時不斷強調要提升本港服務業質素，這就更需要改善僱員福利待遇，吸引更多人才入行，如此才能令整個行業得益。近年本港勞動人口不斷下降，政府推出多項應對措施，吸引各階層人士投入勞動力市場，有助於改善勞工不足的問題。
Improve benefits of "casual workers" to protect employees' rights and interests
【譯文】The Labour Advisory Board reached a consensus on 1 February 2024 on the review of the "continuous contract" requirement under the "Employment Ordinance" (commonly known as the "418" requirement), which was relaxed such that a person who has worked a total of 68 hours in four weeks would be regarded as being employed under a "continuous contract" and would be entitled to a range of employment benefits. The amendment will help enhance the protection of the rights of "casual workers" with shorter working hours. The Government should expeditiously commence the relevant legislative amendment and strive for its implementation as soon as possible.
At the same time, the Government should recognize that there is still much room for improvement in the protection of employees' rights and benefits in Hong Kong. There is a need to conduct a comprehensive review of the employee policy to keep up with the global pace of business that attaches greater importance to the protection of employees' rights and benefits, especially keeping the law abreast of the times by adapting to the development of new technologies. The business community should also see that harmonious labour relations are conducive to creating a favourable business environment and benefiting everyone.
Under the existing requirement, an employee who has been employed continuously by the same employer for four weeks or more, with at least 18 hours of work each week, is regarded as being employed under a "continuous contract", and is entitled to a range of employment benefits, such as statutory holiday pay, paid annual leave and sickness allowance, etc. However, in the past, some employers deliberately arranged for their employees to work less than 18 hours in the fourth week in order to evade the provision of benefits, which was in fact taking advantage of the "loopholes in the law". The initiative was announced in 2023 Policy Address and the relaxed requirement of 68 hours in four weeks helps to enhance the protection of the rights and interests of employees with shorter working hours, a step forward in the protection of employees' rights and interests.
However, it should be noted that there are still some weaknesses in the protection of employees' rights and benefits in Hong Kong, such as long working hours, short maternity leave and paternity leave, insufficient protection in overtime compensation and holiday compensation, and so on, and that Hong Kong's protection of employees is inadequate when compared with that in the Mainland and overseas regions. In fact, the Government has made significant strides in recent years, including breakthroughs in areas like the "offsetting" arrangement of the MPF. However, a more systematic and holistic consideration of policies is necessary to ensure the protection of employees' rights and benefits.
The amendment of the "418" requirement was originally intended to better protect employees with shorter working hours. However, the "gig economy" has been developing rapidly in recent years, with increasingly complex and diverse forms. Regarding the statistics on self-employed persons, there were over 220,000 self-employed persons in Hong Kong in 2019 and more than 280,000 by 2021. The rights of employees in new forms of work, such as drivers of online ride-hailing services and riders of takeaway delivery, are still not protected. In addition, more and more enterprises are implementing "work from home" programmes and some employers have resorted to "false self-employment" to evade employee benefits.
In fact, in response to the emerging economic model, legislation to protect the rights and benefits of "casual workers" has been amended in different parts of the world. In the Mainland, for example, enterprises have been required to take out social insurance for delivery riders in recent years. In the United States, New York City has expanded the coverage of the Black Car Operators' Injury Compensation Fund to entitle drivers of online hailing services to employee compensation insurance, accidental death benefits, vision coverage, and other medical benefits. In contrast, there is a need for Hong Kong to adopt a more forward-looking approach to keep pace with the progress of the overall economic model.
Regarding the new amendment, some employer representatives have expressed their "reluctant acceptance", believing that the new requirement will have a greater impact on the catering, cleaning and construction industries, which employ more casual workers. This kind of thinking only sees the cost, not the benefits. This is particularly so now that emphasis is constantly being placed on upgrading the quality of the service industry in Hong Kong, and it is all the more necessary to improve the welfare benefits of employees and attract more talents to join the industry, for only in this way can the industry as a whole benefit. In recent years, the labour force in Hong Kong has been declining. The Government has introduced a number of measures to attract people from all walks of life to join the labour market, which is conducive to ameliorating the problem of a labour shortage.
◆ 琬琰
