2. Coverage of the Ordinance
Statutory Minimum Wage (SMW) applies to all employees, whether they are monthly-rated, daily-rated, permanent, casual, full-time, part-time or other employees, and regardless of whether or not they are employed under a continuous contract* as defined in the Employment Ordinance, with the following exceptions:
- persons to whom the Employment Ordinance does not apply
(a) a family member who lives in the same dwelling as the employer;
(b) an employee as defined in the Contracts of Employment Outside Hong Kong Ordinance;
(c) a person serving under a crew agreement under the Merchant Shipping (Seafarers) Ordinance, or on board a ship which is not registered in Hong Kong;
(d) an apprentice whose contract of apprenticeship has been registered under the Apprenticeship Ordinance.
As for (d), while certain provisions of the Employment Ordinance apply to registered apprentices, SMW is not applicable.
live-in domestic workers
This refers to domestic workers (including domestic helpers, carers, chauffeurs, gardeners, boat-boys or other personal helpers) who dwell free of charge in their employing household, irrespective of their sex or race.
The following persons are not live-in domestic workers and SMW applies to them:
- domestic workers not dwelling free of charge in their employing household
- live-in employees who are not domestic workers
student interns as well as work experience students during a period of exempt student employment
According to the Labour Department’s Guidelines for Employers and Employees, a student intern is:
- a student undergoing a period of work arranged or endorsed by a local education institution specified in Schedule 1 to the Minimum Wage Ordinance, and the work is a compulsory or elective component of the requirements of a full-time accredited programme being provided by the institution to the student; or
- a student resident in Hong Kong and undergoing a period of work arranged or endorsed by an institution, and the work is a compulsory or elective component of the requirements of a full-time education programme for a nonlocal academic qualification at degree or higher level being provided by the institution to the student.
A work experience student is:
- a student who is enrolled in a full-time accredited programme provided by a local education institution specified in Schedule 1 to the Minimum Wage Ordinance; or
- a student who is resident in Hong Kong and enrolled in a full-time education programme for a non-local academic qualification at degree or higher level and is under the age of 26 years at the beginning of employment. The work experience student may agree with the employer to have a continuous period of up to 59 days as exempt student employment if :
(a) the student has not commenced another exempt student employment period within the same calendar year (whether under the employment of the same employer or not); and
(b) the student has made a statutory declaration verifying the fact in (a) above and provided the declaration (or copy) to the employer.
Please note that SMW also applies to employees with disabilities and able-bodied employees alike. Special arrangement is provided under the Minimum Wage Ordinance so that persons with disabilities have the right to choose to undergo a productivity assessment to determine whether they should be remunerated at not lower than the SMW level or at a rate commensurate with their productivity. For details, please refer to the leaflet Productivity Assessment for Persons with Disabilities under the Statutory Minimum Wage Regime published by the Labour Department.
*Remark: an employee engaged under a “continuous contract” is defined as one who has been employed under a contract of employment by the same employer for four weeks or more and has worked for 18 hours or more each week (i.e. the so-called “4-18” requirement).