HK Rights - Unfair work conditions
- 07-26-2009, 10:29 PM #9Registered User
- Join Date
- May 2009
I found this at http://www.tannerdewitt.com/media/pu...g-mothers.php:
Under Hong Kong Law a pregnant woman is entitled to maternity benefits from her employer, provided she is employed under a “continuous contract”. That requires employment of over 18 hours per week. The maternity benefits include:
1. Maternity leave of:
* 10 weeks leave;
* An additional time equivalent to the period between the expected date of birth and the actual date of birth; and
* Up to 4 weeks additional leave in the event of illness or disability related to the birth or pregnancy. This is in addition to the entitlement to sick leave.
The 10 weeks leave would start 4 weeks before the expected date of birth, unless the employer and employee can agree a date, which would usually be between 4 and 2 weeks before the birth. If the baby is born early, and prior to the agreed commencement date, the 10 week maternity period will start on the date of the birth.
The pregnant employee will need to have given notice of her pregnancy and intention to take maternity leave to the employer.
2. If the woman has been employed for over 40 weeks and has given the employer a certificate of pregnancy and of the expected due date, she is also entitled to maternity pay. This is payable for the 10 week period. The pay is at a rate of 4/5ths of the employee’s usual wage.
3. A valuable protection is the prohibition on termination of employment. Unless the employee is summarily dismissed for gross misconduct, the employer is barred from terminating the employment of an employee who has given notice of her pregnancy.
Under Hong Kong law it does not matter whether the reason for the dismissal is linked to the pregnancy or not. The prohibition is absolute. Indeed, even if the employer is unaware of the pregnancy and gives notice, the employer must withdraw the notice if the employee gives immediate notice of the pregnancy.
If the employer terminates the employment in breach of this law, then they must pay the employee all of her wages and maternity pay up to the date on which the maternity leave would have ended. In addition the employer commits a criminal offence and is liable for the following additional sums:
* An additional month’s wages; and
* For employees with over 2 years of service, they may also be entitled to additional benefits of up to $150,000.
4. A pregnant employee who has given a medical certificate cannot be assigned to perform hazardous and strenuous work which may cause a risk to the pregnancy. If her job involves that type of work, then the employer must change the employee’s duties within 14 days of the certificate being presented.
Pregnant women who wish to utilise these rights need to make sure that the proper notices are served and also that their employers are aware of these rights. It is possible for employers to agree more generous maternity rights and even include these in the employment contract. Indeed many employers, especially international firms, have consistent maternity benefits irrespective of the location and the local law, with many employers offering maternity leave of 6 months or more. However, in the absence of agreement the only entitlement is to the benefits and rights set out previously.
- 07-26-2009, 11:29 PM #10Registered User
- Join Date
- Apr 2006
Omitted from the above post and as per my earlier one is that employers may get (at their cost) a second opinion from another doctor re. fitness for work AND while dismissal is prohibited, "summary dismissal" for misconduct is allowed... can check the ordinance online.
Last edited by slamdunk; 07-26-2009 at 11:31 PM. Reason: add link
- 07-27-2009, 07:50 AM #11
however, slamdunk, if the employer is overworking the employee and the employee reports this to her doctor who then says she needs a period of bedrest THAT is NOT gross misconduct. it is making sure the pregnant employee is getting enough rest, something the employers don't seem to think she needs.
- 07-27-2009, 09:28 AM #12Registered User
- Join Date
- Jul 2006
- Hong kong
I can understand at 12 weeks, it must feel terrible, but the extreme tiredness felt at the beginning of pregnancy will hopefully go away soon. Short of getting the requisite medical certificate, maybe you can negotiate with your boss that if you are required to work long hours that you be also given enough time to rest before the next day of work?
- 07-27-2009, 09:42 AM #13Registered User
- Join Date
- May 2007
- Tin Hau
agree with AndreaY. ask for shorter or more regular hours or half time even, if available. being frustrated over going to work isn't worth it so work something out with the bosses. if that doesn't work, is there someone more senior to talk to? they can't fire you so you've got the 'upper hand' now.
- 07-27-2009, 11:37 AM #14Registered User
- Join Date
- May 2009
- Hong Kong
I know what you are going through! In my first pregnancy, I worked over 90 hours in the week that I told my employers I was pregnant (at 12 weeks). I work in an industry which is very client driven and all nights, weekends and long days are unfortunately part of the job. I also spoke to my specialist as I could not (and would not) keep up those hours. He was very receptive to writing me something to say I could only work a maximum number of hours a week (I had suggested 40 odd). I never needed it as once I told them, they tried to limit my deal exposure so that helped a lot but nice to know that I had it in my back pocket just in case.
If you think you need bed rest now then I say go for it but maybe also raise with your doctor the possibility of having him set a reasonable number of hours to work in a week which you can present to your employers.
Do you mind me asking what industry you work in?
- 08-04-2009, 05:11 PM #15Registered User
- Join Date
- Jun 2009
- Hong Kong
All, thanks for the great advice. Sorry I hadn't been back on this forum for awhile because I ended up going to my doctor and while I did not ask for bed rest explicitly, I told her my situation. She thankfully said the baby looked fine, but that continuing conditions like the ones I was being put through would eventually be bad. So I got a note like starbucks2 which recommended a 40 hour week. I gave it to my HR person who then contacted my partners (I am an IPO lawyer) and they have been good about my schedule since.
As to whether limiting my hours in this way means I'm not performing, well, I think it is certainly true that all nighters and long hours are part of my job. If there are coworkers who resent me right now, so be it - I have more important concerns, and I do try to be efficient in the time I am at work. Quite simply, I busted my ass for this law firm for over 4 years now, survived the layoffs, put in countless hours and made them a lot of money, so I think they can deal with me giving them a 'normal' workday for a few months.
One interesting thing that happened was that when I first gave my note to the HR lady, she suggested I voluntarily go on part-time program and reduce my salary and benefits. I was surprised and said I had been reading up on US laws (my law firm is CA based and I originated in a CA office before being transferred to their HK office) and pregnancy is treated as a 'temporary disability' in which if the employee needs to take time off or limit hours temporarily, the government will compensate for the difference. The employee should not suffer a reduction in salary or benefits. That is exactly what happened to my coworker in one of the US offices when she had to take 2 full months of bedrest. I was only requesting a normal working day. I think in HK the rules are different and once I said that seemed discriminatory to me, she backed off and then asked the head of HR in the US who confirmed that I could just limit my hours to 8 a day without having a reduction in my salary. Of course, I have still gone above those hours on many days, but try to at least work from home when it gets past 8 hours.
On a separate note, I really don't see how anyone has a normal working schedule and raises children in HK in my industry with the kind of work ethic/expectations they have here. I know where I was from before, there are plenty of moms working full-time for slightly less pay but normal working hours at companies. HK is just special I suppose.
- 08-05-2009, 04:33 PM #16Registered User
- Join Date
- May 2009
- Hong Kong
I am a lawyer too so know EXACTLY what you are going through (hence my 90 plus hours in the week I told them I was pregnant). Your experiences sounded so similiar to mine that I wondered if you were also a lawyer!! I had my baby almost 18 months ago and now pregnant with number 2. Because I didn't want to keep those hours up when the baby came, I decided to change to a professional support lawyer role (which is great as it is also part-time). I could not see how I could do a transactional legal role working those crazy hours and still have input in raising my child. It could be different in a different team (like litigation for example) and/or a different firm if there was willingness on the part of the partners to be proactive and forward-thinking. A friend of mine is still working in corporate law on a 3 day a week basis and seems to work for her as she has buy-in from her bosses. The women in my team at work and I have countless discussions on this issue and none of us can see how a transactional legal role in our practice area is possible if you still want to be a hands on mum. It is a shame as I do miss parts of the client facing role and the deal work (maybe once the kids are at school ....)
Can't believe that they suggested that you take a part time position and resultant pay cut because you are pregnant - very cheeky - no wonder she backed off when questioned!! A colleague of mine who is still a fee earner is in her last 2 months of pregnancy and had to have a chat to them as well as she was working until midnight every night and all weekend for months. Not acceptable when you are pregnant. I also agree that you may feel that your colleagues begrudge your reduced hours but I'd ignore that. They may not feel like that and if they do, then it is no different to having a sick note for a different reason. No-one would question it if you were recovering from glandular fever or something and needed rest and reduced hours.
Hang in there and glad baby doing fine.
I suppose you are thinking about what to do when the baby comes? Will you go back to work? Any chance of part-time?
Last edited by starbucks2; 08-05-2009 at 04:40 PM.
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