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Starting and Running a Business
Elements to Determine 'Employee' and 'Independent Contractor'

Employees Compensation, Mandatory Provident Schemes Ordinance, Taxation, Employment Ordinance and Discrimination

Under the Employees Compensation Ordinance, an employer is required to purchase an insurance policy for injuries happened in the course of employment. The failure to purchase such a policy is a criminal offence and can lead to criminal prosecution by the Labour Department.

Under the Mandatory Provident Schemes Ordinance, "employers" (which may include for profit and not for profit companies, individuals, schools, government agencies and other entities) are required to deduct and withhold from their "employees" a percentage of wages to be paid to the trustee of the MPF Scheme. The employer is also required to make contribution a certain percentage of the wages out of his own fund for the employee's benefits.

As to taxation, if an employee owes to the Inland Revenue Department any unpaid salary tax, the employer shall upon receipt of a notice of the Commissioner of Inland Revenue deduct and withhold the relevant amount of tax due and unpaid and have the same paid out to the Hong Kong Government. Employers who fail to properly deduct and withhold the appropriate amounts and pay them over to the Commissioner as demanded can be subject to a variety of penalties and interest charges for unpaid amounts.

Classification of an individual as an employee will also affect whether the hiring party is subject to Employment Ordinance which has provisions governing the employer's obligations or responsibilities regarding public holidays, maternity leaves, sick leaves, severance payment, dismissal etc. Other relevant laws include the anti-discrimination statutes under the Equal Opportunity Ordinance, the Disability Discrimination Ordinance, Sex Discrimination Ordinance and Family Status Discrimination Ordinance.