Transferring Employees on an Outsourcing in Hong Kong: Overview
Thomson Reuters Practical Law
Thomson Reuters Practical Law
Apart from the “Q&A Guide to Outsourcing in Hong Kong,” Morrison Foerster Partner Gordon Milner and Associate Gigi Yuen also wrote an article on “Transferring Employees on an Outsourcing in Hong Kong: Overview,” to take a deeper dive into rules relating to transferring employees on an outsourcing, including structuring employee arrangements (including any notice, information, and consultation obligations) and calculating redundancy pay. This article was originally published on Thomson Reuters Practical Law on October 26, 2022, and is reproduced with the permission of Thomson Reuters.
Below are the 15 questions covered in this article. View more details.
1. What is an outsourcing?
2. In what circumstances (if any) are employees transferred by operation of law?
3. If employees transfer by operation of law, what are the terms on which they do so?
4. If the employees do not transfer by operation of law but there is a commercial agreement in place for them to be transferred, what employment rights, obligations, and terms must the parties to the agreement adhere to or are common practice to honor? Is the position only governed by the commercial agreement between the parties?
5. Is a transferee required to harmonize the terms and conditions of transferring employees with those of its existing workforce? If so, what does it mean to harmonize terms in your jurisdiction? What are the risks for the transferee of not harmonizing terms or failing to do so correctly?
6. If there is no legal requirement to harmonize terms and conditions of transferring employees with those of its existing workforce, what are the risks and challenges for the transferee of harmonizing, or choosing not to harmonize, the terms and conditions of transferring employees with those of its existing workforce?
7. To what extent can dismissals be implemented before or after the outsourcing?
8. What liability could arise for the transferor or the transferee for any dismissals before the transfer?
9. What liability could arise for the transferor or the transferee for any dismissals after the transfer?
10. How is redundancy pay calculated?
11. In what circumstances (if any) can the parties structure the employee arrangements of an outsourcing as a secondment? What are the risks of doing so?
12. What information must the transferor or the transferee provide to the other party in relation to any employees? Are there any time limitations or requirements?
13. Are there any restrictions or limitations on the personal data of employees that can be shared between the transferor and the transferee?
14. What are the notice, information, and consultation obligations that arise for the transferor or the transferee in relation to employees, employee representatives, trade unions, works councils, or local authorities?
15. What action can an employee take if they object to transferring on an outsourcing, and what effect does their objection have?