Q1. Can an employer rely on an express governing law clause to avoid application of the Employment Ordinance or various discrimination ordinances?
Pursuant to section 70 of the Employment Ordinance, “any term of a contract of employment which purports to extinguish or reduce any right, benefit or protection conferred upon the employee by the Employment Ordinance shall be void”. It should be noted that the various discrimination ordinances in Hong Kong also contain similar provisions.
On the face of it, an express governing law clause cannot override the protections afforded to employees under the Employment Ordinance. However, Hong Kong Court has held in the case HSBC v Wallace that the Employment Ordinance is incapable of overriding the presumption that the chosen law under an express governing law clause should apply.
Having said that, the Court has held otherwise in Cantor Fitzgerald Europe v Jason Jon Boyer. The Court held in that case that an express governing law clause was not capable of overriding the protections afforded to employees under the Employment Ordinance by virtue of section 70.
Whilst the views appear to be conflicting, employers should always be reminded to treat the employees fairly so as to comply with any legal requirement.
The several discrimination ordinances in Hong Kong will apply if the employment is at an “establishment in Hong Kong”, irrespective of the governing law of the employment contract. When an employee wholly or mainly works in Hong Kong, it will be presumed that he is employed at an establishment in Hong Kong. In cases of workers working on aircraft registered in Hong Kong and operated by a person who had his principal place of business or residence in Hong Kong, or ship registered in Hong Kong, they will also be seen as being employed at an establishment in Hong Kong unless the whole of the work is carried out outside Hong Kong.