The Employees’ Compensation Ordinance (Ordinance) sets out the rights and obligations of employers and employees in respect of injuries or death caused by accidents arising out of and in the course of employment, or by prescribed occupational diseases under the Ordinance.

The Ordinance applies to all full-time or part-time employees who are employed under contracts of service or apprenticeship. It also applies to employees under Hong Kong employments but are injured while working outside Hong Kong.

INJURY BY ACCIDENT

If an employee sustains an injury or dies because of an accident arising out of and in the course of his employment, his employer is liable to pay compensation under the Ordinance, even if the employee might have committed acts of faults or negligence when the accident occurred.

However, an employer is not liable to pay compensation if:

• the injury does not result in permanent incapacity nor incapacitate the employee from earning full wages at his normal work;
• the injury is a deliberate self-injury;
• any incapacity or death resulting from personal injury if the employee has at any time knowingly misrepresented to the employer that he was not suffering or had not previously suffered from that or a similar injury; or
• any injury, not resulting in death or serious and permanent incapacity, caused by an accident which is directly attributable to the employee’s addiction to drugs or when he is under the influence of alcohol.

In any event, where it is proved that the injury is attributable to the employee’s serious and wilful misconduct, or that the injury by accident in the course of his employment is deliberately aggravated by him, then any compensation claimed in respect of that injury will be disallowed. But, if the injury results in death or serious incapacity, the Court has the discretion to award compensation after considering all the circumstances.

OCCUPATIONAL DISEASES

An employee suffering incapacity arising from occupational diseases is entitled to receive the same compensation as that payable to an employee injured in an accident arising out of and in the course of employment if the disease is one due to the nature of any occupation in which he was employed at any time within the prescribed period immediately preceding the incapacity caused. The prescribed occupation diseases are set out in Second Schedule of the Ordinance (e.g. inflammation, bursitis, tuberculosis).

NOTIFICATION OF ACCIDENTS

 An employee should notify the employer orally or in writing when he sustains a work injury or it is confirmed he has contracted an occupational disease specified by the Ordinance as soon as possible. Failure to do so may affect and delay the claim of employee’s compensation.

Irrespective of whether the accident gives rise to any liability to pay compensation, an employer must notify the Commissioner for Labour of any accident or prescribed occupational diseases within the following time periods:

SETTLEMENT OF CLAIMS

Depending on the nature of the case, a claim for employees’ compensation can be settled by (1) direct payment, (2) determination of compensation by agreement according to the Ordinance, (3) settlement by medical certificate, or (4) settlement by the Court.

COMPULSORY INSURANCE

An employer must take out a valid insurance policy to cover his liabilities both under the Ordinance and at common law for the work injuries of its employees. The minimum amount of insurance cover per event should not be less than HK$100 million for employers with not more than 200 employees and not less than HK$200 million for employers with more than 200 employees. An employer who fails to comply with the Ordinance to secure an insurance cover is liable to prosecution and, upon conviction, to a maximum fine of HK$100,000 and imprisonment for two years.

NEW LEVELS OF COMPENSATION

On 15 March 2023, the Legislative Council of Hong Kong passed a resolution to increase the amounts of the nine compensation items below under the Ordinance with effect from 13 April 2023… READ FULL ARTICLE

By Jacky Chan

Note: This material has been prepared for general information purposes only and is not intended to be relied upon as professional advice for any cases. Should you need further information or legal advice, please contact us.