Labour Tribunal pdf version

LABOUR TRIBUNAL

What work does the Labour Tribunal do?

The Labour Tribunal offers a quick, informal and inexpensive way of settling monetary disputes between employees and employers. No legal representation is allowed and parties are required to conduct the case themselves. Although the Tribunal Officers will help you draft your claim form and the Presiding Officer will assist you during the hearings, the Tribunal does not provide any legal advice to the parties in respect of their claims. You should seek independent legal advice on your own initiative if necessary.

What claims can I bring before the Tribunal?

The Tribunal’s jurisdiction is limited to the following types of claims:

• Claims with a claim sum of more than $15,000. Claims lodged by not more than 10 claimants for a sum of money not exceeding $15,000 per claimant are dealt with by the Minor Employment Claims Adjudication Board, located at 10/F, Cheung Sha Wan Government Offices, 303 Cheung Sha Wan Road, Kowloon (Tel: 2927 8000).
• Claims arising from the failure of a person to comply with the provisions of the Employment Ordinance (Cap. 57), the Minimum Wage Ordinance (Cap. 608) or the Apprenticeship Ordinance (Cap. 47).
• Claims involving the breach of a term of a contract of employment, whether for performance in Hong Kong or under a contract to which the Contracts for Employment Outside Hong Kong Ordinance (Cap. 78) applies.
• Claims transferred by the Minor Employment Claims Adjudication Board or the Small Claims Tribunal.

Claims that arose more than 6 years ago may be barred by the Limitation Ordinance (Cap. 347). :

The most common items of claim lodged by employees include:

• wages due for work done
• wages in lieu of notice of termination of a contract of employment by an employer without giving the required notice
• payment for statutory holidays, annual leave or rest days
• severance pay, long service payment or terminal payments
• end of year payment, double pay or annual bonus
• commission
• unpaid wages of up to 2 months against the principal contractor and superior sub-contractors in the building and construction industry

Common items of claim lodged by employers include:

• wages in lieu of notice on resignation or termination of contract of employment

When can I settle the claim?

Parties may settle their case at any stage of the proceedings and are always encouraged to explore settlement as a means of resolving their disputes.

If you would like to explore settlement before lodging a claim with the Tribunal, you may approach the Labour Relations Division of the Labour Department. The Labour Relations Division provides conciliation services to help parties settle their case quickly and amicably. The hotline number for advice on conciliation services is 2717 1771.

If you have filed a claim in the Labour Tribunal and wish to explore settlement with the defendant before the first hearing, you may seek the assistance of the Tribunal Officer handling your case.

If you would like to explore settlement during the hearing, you should inform the Presiding Officer so that he/she may make the necessary arrangements for settlement negotiations.

How do I file a claim?

You should call the 24-hour Telephone Appointment Booking System of the Labour Tribunal at 2625 0056 or visit the Judiciary's website to make an appointment to file the claim.

On the date of the appointment, you should report your attendance to the Tribunal Registry. You will need to produce your Hong Kong Identity Card and the referral number of the Labour Department (if applicable) to the Tribunal Registry staff.

The Tribunal Registry will provide you with an Appointment Parties’ List for verification of your name, address and Hong Kong Identity Card number. You should also verify the name and address of the intended defendant so that a copy of the claim can be effectively served on the intended defendant at the correct address. You should note that a P.O. Box number will not be considered as a valid address.

Where the intended defendant is a limited company, you must provide the Tribunal Registry with the intended defendant’s registered office address. You may find the address information at the Companies Registry, 13/F, Queensway Government Offices, 66 Queensway, Hong Kong (Tel: 2234 9933), or visit the Companies Registry's e-Services Portal on the internet.

Where the intended defendant is a sole proprietorship or a partnership business, you must provide the Tribunal Registry with the intended defendant’s principal place of business and/or the residential address of the proprietor or partners. You may find this information at the Business Registration Office of the Inland Revenue Department, 2/F, Inland Revenue Centre, 5 Concorde Road, Kai Tak, Kowloon, Hong Kong (Tel: 187 8088); or apply via the website.

You will meet with the Tribunal Officer on the appointment date where the Tribunal Officer will assist you in formulating your claim. You should remember to bring all your supporting documents to show the Tribunal Officer.

Once the Tribunal Officer receives the necessary information, he/she will assist you in issuing the following documents:

• a Title to Claim (Form 1), bearing the names and addresses of the claimant and the defendant, and
• a Form of Claim (Form 2), showing the details of the claim, including the grounds for the claim, the items and amount of the claim..

You must sign on Form 2 before it is sent out to the defendant.

If you are a business entity, the following persons may sign on Form 2 for and on behalf of the business:

• The sole proprietor of a firm.
• A partner of a partnership business.
• A director, secretary or other authorised officer of an incorporated company bearing an authorisation letter.

You may complete the forms in Chinese or English. Sample completed forms are on display at the Tribunal Registry.

How much does it cost to file a claim?

A fee of $10 per defendant’s address is charged for serving the required documents on the defendant.

The Tribunal may reduce, remit or defer payment of any fees specified in the Schedule under the Labour Tribunal (Fees) Rules if good and valid reasons for so doing are produced in writing to the Registrar.

What happens after I file a claim?

Once your Form 2 is issued, you will receive a Form 3 – “Notice of Place and Day Fixed for Hearing” which sets out the date and time of the hearing. This first hearing is called a “call-over hearing”. The call-over hearing will be fixed on a date between 10 and 30 days from the date on which the claim is filed.

The Tribunal Registry will arrange for copies of Forms 1, 2 and 3 to be served on each defendant.

During the interim period, the Tribunal Officer will continue to investigate the claim with both parties. The defendant will be asked to meet with the Tribunal Officer and will be required to submit a defence (by way of a witness statement) together with supporting evidence. You may be asked to reply to the defendant’s allegations or version of events.

Once the investigation is completed, the Tribunal Officer will prepare a Summary of Facts for submission to the Presiding Officer setting out the parties’ respective allegations and the issues in dispute.

You are reminded that it is your responsibility to ensure the other party has a copy of your documents. If you fail to provide the other side with a copy of your documents, the Presiding Officer may order a copy be made by the court staff and you will be required to bear the costs. The costs of copying by court staff is very expensive. It is therefore in your own interest to ensure a copy of your documents is provided to the other side.

What will the defendant do after he/she receives my claim?

The defendant may do one of the following:

• agree to pay your claim sum in full or in part;
• agree to pay your claim sum but ask for time to do so;
• agree to your claim sum but allege that he/she is unable to pay;
• partially or wholly dispute your claim but does not file a counterclaim;
• partially or wholly dispute your claim and file a counterclaim; or
• ignore your claim.

What happens if the defendant agrees to pay my claim in full or in part?

If the defendant informs the Tribunal Officer he/she is willing to pay the claim in full before the call-over hearing, the Tribunal Officer will arrange for the defendant to confirm his/her agreement in writing. An award will be issued and the call-over hearing will be vacated. The Tribunal Accounts Office will notify you when the money is ready for collection.

If the defendant waits until after the call-over hearing or subsequent hearings to confirm his/her agreement to pay the claim sum, the Presiding Officer will make the necessary orders in open court. Parties are reminded that there may be costs implications if the matter is resolved at or after the call-over hearing.

Where the defendant is only willing to pay part of the claim sum, the remaining disputed items will proceed to trial. In such circumstances, the defendant should inform the Tribunal whether he/she is willing to settle the agreed sums before the trial hearing.

What happens if the defendant admits my claim but asks for time to pay the full sum?

The Tribunal Officer will inform you of the defendant’s proposal for payment. If both parties agree to a specific payment date or payment by instalments, the Tribunal Officer will prepare a settlement form for both parties to sign. Once a settlement is signed on payment by instalments, it is binding on the parties.

If the parties reach a settlement agreement before the call-over hearing, the settlement will be approved by the Presiding Officer in chambers and parties will not be required to attend court.

If, however, both parties cannot reach settlement before the call-over hearing, they will have to attend the call-over hearing. The parties may continue to explore settlement at the call-over hearing if they so wish.

If the defendant fails to make payments in a timely manner, you may apply for execution of the award to recover the unpaid judgment sum. Parties should refer to the pamphlet “Enforcement of Labour Tribunal Awards” on matters relating to execution. A copy of the pamphlet may be obtained from the Tribunal Registry or found on the Judiciary’s website.

What happens if the defendant admits my claim but is unable to pay?

The defendant should inform the Tribunal Officer that he/she admits the claim but is unable to pay the claim sum. The parties may reach a settlement on the basis that the defendant admits the claim but is unable to pay. Alternatively, the Presiding Officer may, on the day of the hearing, ask the defendant to confirm the claim sum admitted and enter judgment on the admitted sum.

What happens if the defendant disputes my claim in part or in whole?

The defendant should file a defence (by way of a witness statement or otherwise) setting out which item(s) of claim is/ are being disputed and the reasons why he/she disputes those items. The defendant should provide supporting evidence to rebut the claim or to support his/her own defence.

A copy of the defence should be sent to the claimant.

What if the defendant disputes my claim and has a counterclaim?

If the defendant intends to counterclaim against the claimant, he/she should file the counterclaim as soon as possible.

In addition to filing a defence, the defendant should file documents to support the counterclaim and set out the relevant facts of the counterclaim by way of a witness statement.

The defendant is responsible for sending the defence and the counterclaim documents to the claimant.

What happens if the defendant ignores my claim?

If the defendant fails to file a defence and fails to attend the call-over hearing, the Presiding Officer may enter judgment in the defendant’s absence if he/she is satisfied the defendant had notice of the claim. You will be required to give evidence on oath to verify the claims set out in Form 2. If the Presiding Officer is satisfied you are able to prove your claim, judgment may be entered against the defendant.

What happens if the Tribunal cannot serve my claim on the defendant?

If a claim cannot be served on the defendant, you will be asked to obtain the defendant’s correct address and, if necessary, verify it. If the claim still cannot be served, the Tribunal may order other means of serving the claim, such as by newspaper advertisement. This is known as substituted service. If substituted service by way of newspaper advertisement is required, you will be responsible for paying the fee of advertisement.

Hearings

Representation at hearings

Persons who have a right of audience in the Tribunal are set out in section 23 of the Labour Tribunal Ordinance (Cap. 25). With the exception of union representatives, parties are generally required to personally attend court to conduct the proceedings.

Legal representation is not permitted in the Labour Tribunal. However, your legal representative may sit in the public gallery to observe the proceedings.

Corporations may be represented by their employees or an office bearer.

Partnerships may be represented by one or more of the partners.

If you wish to be represented by a registered trade union or an association of employers who has been authorized, you must seek the permission of the Tribunal before your representative is permitted to represent you in the proceedings.

What happens at the call-over hearing?

It is important that parties attend the call-over hearing. If you are absent at the time your case is set to be heard, the Presiding Officer may strike out your claim. If the defendant is absent, judgment may be entered in his/her absence.

The call-over hearing is not a trial hearing and the Presiding Officer will not try the issues on that day. The purpose of the call-over hearing is to ensure parties have filed sufficient documentary evidence to support their case. In appropriate cases, the Presiding Officer may also explore the possibility of settlement between the parties.

If there is no prospect of settlement between the parties, the Presiding Officer will give directions for further filing of evidence and adjourn the case to another date for mention or trial.

What will happen at the trial hearing?

The trial Presiding Officer will explain the procedures to be adopted during trial.

In general, the trial Presiding Officer will

• hear each party’s case;
• allow the claimant and the defendant to question each other and their witnesses;
• order the parties to provide further evidence or to call further witnesses and adjourn the hearing to a later date if necessary;
• deliver his/her judgment at the end of the hearing or fix a date to deliver judgment.

For more information, parties should refer to the pamphlet “General Guidelines for Preparation for Trial”. A copy of the pamphlet may be obtained from the Tribunal Registry or found on the Judiciary’s website.

After a hearing

What should I do if my claim has been struck out because I was absent from the hearing?

You may apply to have the order set-aside and to have the case restored by completing the Form 18 – “Application for Restoration of a Claim” in duplicate and by paying a prescribed fee of $45 at the Tribunal Registry. The form is available at the Tribunal Registry and on the Judiciary's website.

You should clearly set out the reasons why you were absent from the last hearing and other grounds you wish the Presiding Officer to consider in your application.

The application must be made within 7 days after the hearing or such further period as the Tribunal may allow.

Can a defendant set aside an order made in his/her absence?

Yes. The defendant can apply to set aside an order made in his/her absence within 7 days after the hearing or such further period as the Tribunal may allow and on any conditions the Tribunal thinks fit.

A defendant applying to set aside an award or order must complete Form 19 – “Application to Set Aside an Award/Order” in duplicate and pay a prescribed fee of $45 at the Tribunal Registry. The form is available at the Tribunal Registry and on the Judiciary’s website.

Could I apply to review and/or appeal a judgment if I lose the case?

Yes. For more information, please refer to the pamphlet “Review and Appeal”. A copy of the pamphlet may be obtained from the Tribunal Registry or found on the Judiciary’s website.

Payment of Award

What should I do if the defendant does not pay the sum awarded to me by the Tribunal?

You may consider taking enforcement procedures against the non-paying party.

For more information, you may refer to the pamphlet “Enforcement of Labour Tribunal Awards”. A copy of the pamphlet may be obtained from the Tribunal Registry or found on the Judiciary website.

You should also seek independent legal advice if necessary.

Could I enforce my judgment if the defendant has lodged an application for leave to appeal?

There is no automatic stay of execution just because the defendant has made an application for leave to appeal. This means you are entitled to enforce your award so long as there is no court order ordering there be a stay of execution.

Performance Pledge

• The Tribunal will list the call-over hearing not later than 30 days from the date of filing of claim.
• Wherever possible, the Judiciary will reply at once to correspondence from members of the public. In any case, we will give you an interim reply within 10 days and a full response within 30 days of receiving a letter. If a full response cannot be given within 30 days, we will give you a further interim reply with a brief explanation.
• We welcome all comments and suggestions for improving our services. Please send them to the Judiciary Administrator at the High Court, 38 Queensway, Hong Kong.

Business Hours

(Closed on Saturdays, Sundays and Public Holidays)

Typhoon and Rainstorm Warning Arrangements

Please refer to Typhoon and Rainstorm Warning Arrangements in the Judiciary website or radio/television announcements of the same.

Procedures for Settling Monetary Disputes between Employees and Employers