香港労働法 Hong Kong Labor Issues #64 日本人のための香港労働問題研究：雇用条例 (Employment Ordinance) XII-XIII:日本語版
香港雇用条例 日本語翻訳版
【原文】
Part XII Employment Agencies
(Part XII replaced 35 of 1973 s. 2. Format changes—E.R. 3 of 2017)
50. Interpretation and application of Part
(1) In this Part, unless the context otherwise requires— associate (相關人士), in relation to a person, means— (a) if the person is a company— (i) a related person of the person; or (ii) an individual employed by the person; (b) if the person is a partner in a partnership— (i) a related person of the person; or (ii) an individual employed by the person or by the partnership; or (c) in any other case—an individual employed by the person; (Added 8 of 2018 s. 3) certificate of exemption (豁免證明書) means a certificate issued under section 54; employment agency (職業介紹所) means a person who operates a business the purpose of which is— (a) to obtain employment for another person; or (b) to supply the labour of another person to an employer, whether or not the person who operates the business will derive any pecuniary or other material advantage from either the employer or such other person; (Amended 41 of 1990 s. 21) licence (牌照) means a licence issued under section 52 and licensee (持牌人) shall be construed accordingly; (Amended 8 of 2018 s. 3); related person (有關連人士) means— (a) in relation to a company—a director, manager, secretary or other similar officer of the company; or (b) in relation to a partner in a partnership— (i) another partner in the partnership; or (ii) another person concerned in the management of the partnership. (Added 8 of 2018 s. 3) (2) Subject to subsection (3), this Part shall apply to any employment agency which is carried on in Hong Kong, whether the employment is to take place within or outside Hong Kong. (3) This Part shall not apply to any employment agency— (a) which is carried on or subvented by Her Majesty’s Government or the Hong Kong Government; (b) which is carried on under the terms of a permit to maintain a crew department granted or deemed to be granted under the Merchant Shipping (Seafarers) Ordinance (Cap. 478); (Amended 44 of 1995 s. 143) (c) (Repealed 41 of 1990 s. 21) (d) (Repealed 10 of 1980 s. 4) (e) which is carried on by an employer for the sole purpose of recruiting persons for employment on his own behalf; (f) which is carried on by a contractor, or sub-contractor, who employs any person on work for another person; (g) which is carried on by the proprietor of a newspaper or other publication if the operation of an employment agency is non-profit making and is not the principal purpose of the publication of the newspaper or other publication; (h) which is— (i) non-profit making; (ii) wholly maintained or managed by the owner, staff or students of a school, college, university or other educational institution recognized by the Permanent Secretary for Education; and (Amended 3 of 2003 s. 41; L.N. 130 of 2007) (iii) carried on solely for or in connection with the employment of the students or graduates of such school, college, university or other educational institution; or (i) subject to any regulations which may be applicable thereto, in respect of which a certificate of exemption has been issued.
51. Prohibitions in respect of the operation of employment agencies
(1) A person must not operate, manage or assist in the management of an employment agency unless the person— (a) is the holder of a licence or certificate of exemption issued in respect of the employment agency; or (b) is an associate of the holder. (Replaced 8 of 2018 s. 4) (2) No person shall operate, manage or assist in the management of an employment agency at any place other than the place of business specified in the licence or certificate of exemption issued in respect of the employment agency. (3) (Repealed 28 of 1992 s. 2)
52. Application for and issue of licences
(1) The Commissioner may issue a licence to operate an employment agency to any person who applies therefor in such manner as may be prescribed. (1A) Where the applicant for a licence is a company, the application shall be submitted by a director of the company on its behalf. (Added 28 of 1992 s. 3) (2) A licence issued under this section shall— (a) be in a form determined by the Commissioner; and (Replaced 28 of 1992 s. 3) (b) specify the place of business of the employment agency in respect of which it is issued. (Amended 28 of 1992 s. 3) (c) (Repealed 28 of 1992 s. 3) (2A) A licensee shall cause his licence to be displayed at all times in a conspicuous position at his place of business. (Added 28 of 1992 s. 3) (2B) Where a licensee operates an employment agency at more than one place of business, he shall designate which place of business is the main location and shall obtain a duplicate licence for each branch location and cause the duplicate licence to be displayed at all times in a conspicuous position at the branch location. (Added 28 of 1992 s. 3) (2C) Where a licensee operates an employment agency at more than one location using different names, the agencies shall be deemed to be separate entities and he shall obtain a separate licence for each name used. (Added 28 of 1992 s. 3) (3) (Repealed 28 of 1992 s. 3) (4) Subject to section 53, a licence issued under subsection (1) shall be valid for 12 months after the date on which it is issued. (5) The Commissioner may, upon application in such manner as may be prescribed, renew a licence issued under subsection (1).
53. Refusal to issue, or revocation of, licences
(1) The Commissioner may refuse to issue or renew a licence, or may revoke a licence, if he is satisfied on reasonable grounds— (a) that the name under which the employment agency is operated or is intended to be operated— (i) is identical with the name of another employment agency which is being, or has been, carried on by another person; or (ii) so nearly resembles the name of another employment agency as to be likely to deceive the public; (b) that the employment agency is being, or is likely to be, used for unlawful or immoral purposes;(Amended 8 of 2018 s. 5) (c) that the licensee or the person intending to be the licensee— (Amended 8 of 2018 s. 5) (i) is an undischarged bankrupt; (ii) has, within the preceding 5 years, been convicted of an offence against the person of a child, young person or woman or of an offence involving membership of a triad society, fraud, dishonesty or extortion; (iii) has knowingly furnished to the Commissioner any false or misleading information in connection with his application for the issue or renewal of the licence; (iv) has contravened any provision of this Part or any regulation made under section 62;(Amended 8 of 2018 s. 5) (iva) has not complied with a code of practice issued under section 62A(1); or (Added 8 of 2018 s. 5) (v) is not, for any other reason, a fit and proper person to operate an employment agency;(Amended 8 of 2018 s. 5) (d) (if the licensee or the person intending to be the licensee is a company or a partner in a partnership) that a related person of the licensee or person— (i) has, within the preceding 5 years, been convicted of an offence against the person of a child, young person or woman or of an offence involving membership of a triad society, fraud, dishonesty or extortion; (ii) has contravened any provision of this Part or any regulation made under section 62; or (iii) has not complied with a code of practice issued under section 62A(1); or (Added 8 of 2018 s. 5) (e) that an individual employed by the licensee or by the person intending to be the licensee— (i) has contravened any provision of this Part or any regulation made under section 62; or (ii) has not complied with a code of practice issued under section 62A(1). (Added 8 of 2018 s. 5) (2) The Commissioner shall, if he refuses to issue or renew a licence or revokes a licence, within 14 days after such refusal or revocation, notify the applicant or licensee in writing of the grounds for such refusal or revocation. (3) Any person aggrieved by a decision of the Commissioner taken in respect of him under subsection (1) may, within 28 days after he is notified under subsection (2), appeal to the Administrative Appeals Board. (Replaced 6 of 1994 s. 35) (4) (Repealed 6 of 1994 s. 35) (5) The licensee shall, if the Commissioner refuses to renew or revokes his licence under subsection (1),— (a) within 28 days after he is notified under subsection (2); or (b) if he has appealed under subsection (3), within 14 days after he withdraws or abandons the appeal or he is notified of the Administrative Appeals Board’s dismissal of the appeal, deliver the licence, and every copy thereof, to the Commissioner. (Replaced 6 of 1994 s. 35)
54. Commissioner’s power of exemption
(1) Subject to subsection (2), the Commissioner may, upon application in such manner as may be prescribed, exempt an employment agency from obtaining a licence under section 52, subject to such conditions as he may specify, if he is satisfied that the employment agency is non-profit making and should, in the public interest, be so exempted. (2) (Repealed 28 of 1992 s. 4) (3) The Commissioner shall issue to any person exempted under subsection (1) a certificate of exemption. (4) A certificate of exemption issued under subsection (3) shall— (a) be in a form determined by the Commissioner; (Replaced 28 of 1992 s. 4) (b) specify the place of business of the employment agency in respect of which it is issued; and (c) specify any conditions subject to which it is issued.
55. Withdrawal of exemption
(1) The Commissioner may, at any time, withdraw an exemption granted under section 54 if he is satisfied that the employment agency has ceased to be non-profit making or should not be so exempted in the public interest. (2) Without prejudice to the generality of subsection (1), the grounds on which the Commissioner may withdraw an exemption shall include mutatis mutandis the grounds contained in section 53(1) on which he may refuse to issue or renew a licence or revoke a licence. (3) Where the Commissioner withdraws his exemption from any person under subsection (1) he shall notify such person in writing of the grounds for such withdrawal. (4) The holder of a certificate of exemption shall, within 14 days after he is notified under subsection (3) of the withdrawal of the Commissioner’s exemption, deliver the certificate of exemption, and every copy thereof, to the Commissioner. (5) No appeal shall lie under this Part against the decision of the Commissioner to withdraw an exemption granted to an employment agency.
56. Maintenance and delivery to the Commissioner of prescribed registers, records and returns
(1) A licensee shall— (a) maintain a record of— (i) all job applicants registered with his employment agency; and (ii) job applicants who, at the time of registration, were not residents of Hong Kong and who were placed in employment in Hong Kong by his employment agency, containing the person’s name, address, Hong Kong Identity Card number or, in the case of a non-resident, passport number and citizenship, fee and commission received, date of employment and name and address of employer; and (Replaced 28 of 1992 s. 5) (b) keep such records available for inspection at the place of business of the employment agency by the Commissioner, or by any public officer authorized by him in that behalf, at all reasonable times. (Amended 28 of 1992 s. 5) (2) A licensee shall, within such time as may be prescribed, deliver to the Commissioner such returns in respect of the employment agency as may be prescribed. (3) The records referred to in subsection (1) shall be retained by the licensee for a period of not less than 12 months after the expiration of each accounting year of the employment agency concerned. (Amended 28 of 1992 s. 5)
57. Prohibited acts in respect of employment agencies
(1) A licensee, or an associate of a licensee, in respect of an employment agency, or a person purporting to act as such a licensee or associate, must not, directly or indirectly—(Amended 8 of 2018 s. 6) (a) receive from any person on account of having obtained, or in connection with obtaining or seeking to obtain, employment for that person— (i) any reward of any kind; or (ii) any payment or other advantage in respect of expenses or otherwise, except the prescribed commission; (Replaced 87 of 1975 s. 2. Amended 28 of 1992 s. 6) (b) share with any person, other than another licensee or a bona fide partner or shareholder in the employment agency, the prescribed commission; or (Amended 87 of 1975 s. 2; 28 of 1992 s. 6) (c) enter, except with the written permission of the Commissioner, into an agreement, express or implied, with any employer whereby— (i) the employer undertakes to employ only persons who seek employment through the employment agency; and (ii) the employment agency agrees to pay or give to the employer some form of material benefit.(Amended 8 of 2018 s. 6) (2) In this section— prescribed commission (訂明佣金), in relation to an employment agency, means the commission that the employment agency is permitted to charge and receive as prescribed by a regulation made under section 62. (Added 8 of 2018 s. 6)
58. Inspection of places of business of licensed or exempted employment agencies
The Commissioner, and any public officer authorized by him in that behalf may— (a) enter and inspect without a warrant at any reasonable time the place of business of an employment agency; (b) require the production of, inspect, examine or take copies of any record or other document relating to an employment agency; (Amended 28 of 1992 s. 7) (c) require any person who operates, manages or assists in the management of an employment agency to furnish such information or particulars relating to the employment agency as he may specify; and (d) make such other inquiries from any other person connected or associated with the employment agency as he thinks fit.
59. Investigation of suspected offences
(1) If the Commissioner, any public officer authorized by him in that behalf or any police officer not below the rank of inspector suspects on reasonable grounds that there is in any premises or place evidence of an offence under this Part he may— (a) enter and search without a warrant any such premises (other than domestic premises) at any reasonable time; and (b) require the production of, seize, detain and remove any article, record or other document which may be evidence of an offence under this Part. (Amended 28 of 1992 s. 7) (2) A magistrate may, if he is satisfied by information on oath that there may be found in any domestic premises any evidence of an offence under this Part, issue a warrant authorizing the Commissioner, any public officer authorized in that behalf by the Commissioner or any police officer not below the rank of inspector to enter and search the domestic premises at any reasonable time. (3) (Repealed 24 of 1988 s. 2)
60. Offences
(1) Any person who contravenes section 51(2) shall be guilty of an offence and shall be liable on conviction to a fine at level 3. (Amended 24 of 1988 s. 2; 28 of 1992 s. 8) (2) Any person who contravenes section 53(5) or 55(4) shall be guilty of an offence and shall be liable on conviction to a fine at level 3. (Amended 24 of 1988 s. 2) (3) Any licensee who contravenes section 52(2A), (2B) or (2C) or 56(1), (2) or (3) shall be guilty of an offence and shall be liable on conviction to a fine at level 3. (Amended 24 of 1988 s. 2; 28 of 1992 s. 8) (4) (Repealed 24 of 1988 s. 2) (5) Any person who— (a) in connection with any application to the Commissioner under section 52(1) or 54(1) furnishes any information which he knows or reasonably ought to know to be false or misleading in any material particular; or (b) in connection with any inquiry or inspection under section 58— (i) fails without reasonable excuse to produce any record or other document relating to the employment agency when required to do so by the Commissioner or any public officer authorized in that behalf by the Commissioner; or (Amended 28 of 1992 s. 7) (ii) furnishes to the Commissioner or any such public officer any information which he knows or reasonably ought to know to be false or misleading in any material particular, shall be guilty of an offence and shall be liable on conviction to a fine at level 5. (Amended 24 of 1988 s. 2) (6) A person who contravenes section 51(1) commits an offence and is liable on conviction to a fine of $350,000 and to imprisonment for 3 years. (Replaced 8 of 2018 s. 7) (7) A person who contravenes section 57(1)(a) commits an offence and is liable on conviction to a fine of $350,000 and to imprisonment for 3 years. (Replaced 8 of 2018 s. 7) (8) Despite section 26 of the Magistrates Ordinance (Cap. 227), a complaint may be made or an information laid in respect of an offence under subsection (6) or (7) within 12 months after the date of the commission of the offence. (Added 8 of 2018 s. 7) (9) A person who contravenes section 57(1)(b) or (c) commits an offence and is liable on conviction to a fine at level 5. (Added 8 of 2018 s. 7) (Amended 103 of 1995 s. 18)
61. Application of sections 52(2A), (2B) and (2C), 56, 57, 58 and 59 to holders of certificates of exemption and exempted employment agencies
(1) Sections 52(2A), (2B) and (2C), 56, 57, 58 and 59 shall apply to holders of certificates of exemption in the same manner as they apply to licensees. (2) Every reference to an employment agency in sections 52(2A), (2B) and (2C), 56, 57, 58 and 59 shall, except where the context otherwise requires, be construed as a reference to both an employment agency licensed under section 52 and an employment agency exempted under section 54. (Amended 28 of 1992 s. 9)
62. Power to make regulations
The Chief Executive in Council may make regulations for all or any of the following purposes— (Amended 56 of 2000 s. 3) (a) prescribing the procedure for the issue of licences and certificates of exemption; (b) fixing the fees to be paid for the issue and renewal of a licence or certificate of exemption and the method of payment of such fees; (c) prescribing the procedure to be followed when a licensee or holder of a certificate of exemption— (i) ceases to operate his employment agency; or (ii) changes the place of business of his employment agency; (d) prescribing the procedure to be followed when— (i) a company is issued with a licence or certificate of exemption; and (ii) there is a change in the management of the company; (e) requiring a licensee and the holder of a certificate of exemption to display his licence or certificate of exemption conspicuously at the place of business of the employment agency; (f) providing for the publication in the Gazette of particulars of all licences and certificates of exemption; (g) prescribing the nature of services in respect of which an employment agency may charge and receive any fee, commission or expenses; (h) prescribing the maximum fees and charges which may be charged and received by an employment agency; (i) prescribing any thing which is to be or may be prescribed under this Part; and (j) generally for the better carrying out of the provisions and purposes of this Part.
62A. Codes of practice for employment agencies
(1) The Commissioner may issue codes of practice setting out principles, procedures, guidelines and standards for the operation, management or control of employment agencies. (2) The Commissioner is to make a copy of every code of practice available for inspection by the public free of charge during business hours at offices of the Government directed by the Commissioner. (Added 8 of 2018 s. 8)
Part XIII Offences and Penalties
(Format changes— E.R. 3 of 2017)
63. Offences and penalty
(1) Any employer who wilfully and without reasonable excuse contravenes any of the provisions of section 11E or 11F(3) or (4) shall be guilty of an offence. (Amended 71 of 1970 s. 4; 48 of 1984 s. 26; 24 of 1988 s. 2) (2) Any employer who— (a) without reasonable excuse, fails— (i) to grant to any employee any rest day which he is required to grant under Part IV; or (ii) (Repealed 103 of 1995 s. 19) (b) contravenes section 19, shall be guilty of an offence. (Added 23 of 1970 s. 4) (3) Any person who wilfully contravenes section 67(2) shall be guilty of an offence. (Added 71 of 1970 s. 4) (4) Any employer who without reasonable excuse fails— (a) to grant to any employee any holiday which he is required to grant under section 39; or (b) to pay to any employee— (i) any sickness allowance which he is required to pay under section 33; or (ii) any holiday pay which he is required to pay under section 40 or 40A(2); or (Amended 48 of 1984 s. 26) (c) to give to any employee any leave which he is required to grant or allow by section 41AA or 41F(3); or (Replaced 53 of 1990 s. 5) (d) to grant to any employee any rest day or holiday which he is required to grant under section 41AA(6); or (Amended 53 of 1990 s. 5) (e) to pay to an employee— (i) pay as regards leave which he is required to grant or allow under section 41AA or 41F(3); or (ii) a sum or compensation which he is required to pay under section 41D, (Replaced 53 of 1990 s. 5) shall be guilty of an offence. (Added 39 of 1973 s. 6. Amended 53 of 1977 s. 7) (5) Any person who contravenes section 40A(1) or 41B shall be guilty of an offence. (Replaced 103 of 1995 s. 19) (5A) Any person who— (a) fails to comply with a requirement made by any officer under any of the provisions of section 72other than subsection (1)(a), (b) and (c) of that section; (Amended 31 of 1992 s. 2) (b) wilfully or recklessly gives information which is false in a material particular or withholds information as to any of the matters in respect of which information is required to be given under any of the provisions of section 72 other than subsection (1)(b) and (c) of that section; or (Amended 31 of 1992 s. 2) (c) (Repealed 24 of 1988 s. 2) (d) fails to comply with any condition imposed on the granting of any exemption under section 73(2), shall be guilty of an offence. (Added 55 of 1979 s. 2) (5B) (a) Any person who makes a payment in contravention of section 41E(1) shall be guilty of an offence. (b) In any proceedings for an offence under this subsection the onus shall be on the defendant to show that any payment to which the offence relates was made pursuant to an agreement duly made under section 41E(2). (Added 53 of 1990 s. 5) (5C) Any employer who contravenes section 41EA shall be guilty of an offence. (Added 53 of 1990 s. 5) (6) Any person who fails to comply with the requirements of a notice in writing or a notice published in the Gazette under section 48(1) shall be guilty of an offence. (7) A person who is guilty of an offence under this section shall be liable on conviction to a fine at level 5. (Amended 24 of 1988 s. 2; 103 of 1995 s. 19)
63A. Offences relating to sections 31, 72A and 72B and penalty
(1) Any employer who wilfully and without reasonable excuse contravenes any of the provisions of section 31shall be guilty of an offence. (Amended 31 of 1992 s. 3) (2) (Repealed 103 of 1995 s. 20) (3) A person who is guilty of an offence under subsection (1) shall be liable on conviction to a fine at level 6. (Replaced 103 of 1995 s. 20) (4) Any person who contravenes section 72A(3) shall be guilty of an offence and shall be liable on conviction to a fine at level 5. (Added 103 of 1995 s. 20) (5) Any person who contravenes any of the provisions of section 72B(1)(a), (b), (c) or (d) shall be guilty of an offence and shall be liable on conviction to a fine at level 6. (Added 103 of 1995 s. 20) (Added 24 of 1988 s. 2)
63B. Offences relating to sections 32 and 72(1)(a), (b) and (c)
(1) Any person who contravenes section 32 or fails to comply with a requirement made by an officer under section 72(1)(a), (b) or (c) commits an offence. (2) Any person who wilfully or recklessly gives information which is false in a material particular or withholds information as to any of the matters in respect of which information is required to be given under section 72(1)(b)or (c) commits an offence. (3) A person who commits an offence under this section is liable to a fine at level 6 and to imprisonment for 1 year. (Amended 103 of 1995 s. 21) (Added 31 of 1992 s. 4)
63C. Offences relating to time and payment of wages
Any employer who wilfully and without reasonable excuse contravenes section 23, 24 or 25 commits an offence and is liable to a fine of $350,000 and to imprisonment for 3 years. (Added 31 of 1992 s. 4. Amended 1 of 2006 s. 3)
63CA. Offences relating to interest on late payment of wages
Any employer who wilfully and without reasonable excuse contravenes section 25A commits an offence and is liable to a fine at level 3. (Added 74 of 1997 s. 16. Amended L.N. 312 of 1998)
63D. Minor offences
(1) Any person who contravenes section 18(2), 26, 27, 28(2), 29, 30, 41AA(4) or (5), 41F(1), 41G, 44, 45, 47(1), 49A or 72A(1) or (2) shall be guilty of an offence. (2) A person who is guilty of an offence under this section is liable on conviction to a fine at level 3. (Added 103 of 1995 s. 22)
64. Prosecution of offences
(1) No prosecution for an offence under section 31RA(6) or section 63(1) or (3) or 63A(1) or 63B or 63C shall be commenced without the consent in writing of the Commissioner. (Amended 71 of 1970 s. 4A; 24 of 1988 s. 2; 52 of 1988 s. 16; 31 of 1992 s. 5) (2) Before the Commissioner gives his consent to prosecute under subsection (1) he shall hear the person against whom the allegation is made, or give him an opportunity of being heard. (3) Subject to subsection (1), a prosecution for any offence under this Ordinance may be brought in the name of the Commissioner and may be commenced and conducted by any officer of the Labour Department authorized in that behalf in writing by the Commissioner. (Replaced 48 of 1984 s. 27) (4) Nothing in this section shall derogate from the powers of the Secretary for Justice in respect of the prosecution of criminal offences. (Amended L.N. 362 of 1997)
64A. Service of summons
(1) Any summons relating to an offence alleged to have been committed under this Ordinance by an employer may be served by leaving a copy of the summons with some person for him at the place of employment mentioned in the summons. (2) Any such summons may be addressed to “the employer” without specifying the name of the employer. (3) Any summons relating to an offence alleged to have been committed under this Ordinance by an employee may be served by leaving a copy of the summons either with some person for him at his last or usual place of abode or with some person for him at his place of employment mentioned in the summons. (4) Any summons relating to an offence alleged to have been committed under this Ordinance by a company may be served by leaving a copy of the summons at, or sending it by registered post to, the registered office of the company. (Added 48 of 1984 s. 28)
64B. Liability of directors, partners, etc.
(1) Where an offence under section 63B or 63C committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, the director, manager, secretary or other similar officer shall be guilty of the like offence. (2) Where an offence under section 63B or 63C committed by a partner in a firm is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any other partner in the firm or any person concerned in the management of the firm, that partner or the person concerned in the management of the firm shall be guilty of the like offence. (Added 31 of 1992 s. 6)
65. Liability for outstanding wages
(1) An employer convicted of an offence under this Ordinance shall, in addition to any fine imposed under this Ordinance, if the court before which the conviction was obtained so orders, pay any wages or other sum outstanding at the time of the conviction and in respect of which the offence was committed. (2) Where the employer is acquitted of an offence under this Ordinance on grounds that his default was not wilful or not without reasonable excuse, the court may, if it finds that any wages or other sums in respect of which the charge was brought are due, order the employer to pay such wages or other sums. (Amended 31 of 1992 s. 7)