The Employment Ordinance only applies to employees – so knowing if you are an employee or an independent contractor can make a huge difference. There is no simple test to distinguish between these two, and much will depend on the facts and circumstances of your relationship with your employer. However, Hong Kong courts (and the Labour Department) have found the following factors to be relevant to determining whether you are an employee or a contractor:
- control over work procedures, working time and method
- ownership and provision of work equipment, tools and materials
- whether the person is carrying on business on his own account with investment and management responsibilities
- whether the person is properly regarded as part of the employer’s organisation
- whether the person is free to hire helpers to assist in the work
- bearing of financial risk over business (e.g. any prospect of profit or risk of loss)
- responsibilities in insurance and tax
- traditional structure and practices of the trade or profession concerned
- the remuneration is not paid or credited periodically (e.g. weekly or monthly, which is usually the case with employment contracts)
- other factors that the court considers as relevant
We can help determine whether you are an employee or a independent contractor, before you sign your employment contract.