HR Journal_May 2018

The Official Journal of the Hong Kong Institute of Human Resource Management 香 港 人 力 資 源 管 理 學 會 會 刊

Human Resources

May 2018

人才薈萃

May 2018 The Official Journal of the Hong Kong Institute of Human Resource Management 香港人力資源管理學會會刊

Achieving Meaningful Work in the Era of Technological Disruption Salary Disparity: Hong Kong Features High on Global Gender Wage Gap Rankings Challenges the HR Function Faces when Managing Hong Kong Employment Visa Applications Handling Sexual Harassment Complaints: The Legal Framework Position in Asia 如何處理性騷擾投訴：亞洲法律 框架的立場

www.hkihrm.org

The Hong Kong Institute of Human Resource Management Suite 1503, 15/F, 68 Yee Wo Street, Causeway Bay, Hong Kong T: 2881 5113 F: 2881 6062 E: info@hkihrm.org W: www.hkihrm.org

HKIHRM Hong Kong Institute of Human Resource Management (HKIHRM) discussion group

Contents P2

President’s Message

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What’s Hot

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P28

Tapping into the Development Frontiers of Employee Engagement

Cover Story

Achieving Meaningful Work in the Era of Technological Disruption

封面專題 創新科技潮 流 下 如 何 替 員 工 尋 找 工 作 意 義

HR Horizon

Salary Disparity: Hong Kong Features High on Global Gender Wage Gap Rankings

Managing Editor Chris Davis E: chris@ninehillsmedia.com Sub-Editor Paul Davis Designer Portia Le Advertising Inquiries Jennifer Luk E: jennifer@ninehillsmedia.com Frank Paul E: frank@ninehillsmedia.com Published by:

HR Toolbox

Challenges the HR Function Faces when Managing Hong Kong Employment Visa Applications

China Focus

Matching Workforce Talent to China’s Productivity Challenge

中國焦點 適當配對人 才 以 營 合 中 國 生 產 力 的 挑 戰

Legal Highlight

Handling Sexual Harassment Complaints: The Legal Framework Position in Asia

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Fax: +852 3020 7442 Email: enquiries@ninehillsmedia.com Internet: www.ninehillsmedia.com

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The Culture Code: The Secrets of Highly Successful Groups

Copyright of all materials is jointly retained by the Hong Kong Institute Human Resource Management (HKIHRM) and Ninehills Media Ltd. No part of Human Resources may be reproduced or transmitted in any form or by any means, including recording and photocopying without the wirtten permission of the copyright holder, application for which should be addressed to the publishers. Written permission must also be obtained before any part of this publication is stored in a retrieval system of any nature. Neither Human Resources the Publisher nor the HKIHRM accept liability for any views, opinions, or advice given. Further, the contents do not necessarily reflect the views or opinions of the Publisher and HKIHRM.

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HKIHRM News

ISSN 2305-2007

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法律點題 如何處理性 騷 擾 投 訴 ： 亞 洲 法 律 框 架 的 立 場

Case in Brief

Written Employment Agreements Can Mitigate Disputes

案例撮要 訂立書面僱 傭 合 約 可 減 少 爭 議

Reading Corner

Do you want to talk about a fresh HR issue?

If so, pleace contact chris@ninehillsmedia.com to discuss contributing an article for publication in the journal.

Cover Image: VLADGRIN Single back issue: HK$300 Annual subscription: HK$2,420

President’s Message

Attracting Quality Talent to Hong Kong and the Greater Bay Area Dear members,

T

he Hong Kong Government has recently announced a threeyear pilot Technology Talent Admission Scheme focused on the bio-technology, artificial intelligence, cybersecurity, robotics, data analytics, financial technologies and material science sectors. This new pilot is in addition to five other schemes currently in force that are designed to attract quality talent to support Hong Kong’s long-term economic development.

Pursuant to the initiative under the Chief Executive’s 2017 Policy Address, the Human Resources Planning Commission, under the chairmanship of the Chief Secretary for Administration, Mr Matthew Cheung, has been established to review and co-ordinate policies on human resources in a holistic manner and oversee the implementation of Hong Kong’s population policy.

Representing the HR profession, I have recently been appointed as a non-official member to this new Commission.

Working with 19 other non-official members comprising a diverse mix of experts and stakeholders from different sectors, our function is to contribute a wide range of expertise, experience and professional views to the Government relating to human resources planning issues. The Government attaches great importance to enhancing and optimising our human capital to cater for the evolving needs of Hong Kong and maintain our city’s overall economic competitiveness. The Commission will focus on the formulation and strategic

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HUMAN RESOURCES • June 2018

review of manpower and human resources in anticipation of the “Greater Bay Area Initiative” and the “One-Belt One-Road Initiative” and other development priorities in the coming decades.

Faced with an ageing population and resulting dwindling of the labour force, the Government has been proactive in rolling out policies to attract talent from overseas and the mainland to meet the enormous demand for talent in the local market. Grooming local talent however is equally important if we are to sustain Hong Kong’s long-term human capital growth amid global competition for quality talent.

In view of Hong Kong’s human resources strategies, the Greater Bay Area (GBA) Initiative will create new opportunities for Hong Kong talent in professional and business support services in which Hong Kong enjoys a competitive edge, as well as job prospects for upward social mobility for our younger generations.

A recent survey by Hong Kong Youth Power Association gauging the employment tendency of young people from Hong Kong and the mainland working in the GBA found that, although 75% of the respondents were optimistic about the future job prospects in the GBA, 57% would not consider working in the region. Reasons cited for this reluctance included insufficient understanding of the GBA initiative, the distance from Hong Kong and

worries about not being able to adapt to the local lifestyle. Clearly, this mentality of our younger generation raises challenges for the Hong Kong Government when devising strategies and measures to encourage Hong Kong talent to seek job opportunities in the GBA. It is essential that the Government maps out the development plan in detail in order to help Hong Kong’s younger generation visualise the opportunities available and so change their mindset. Incentives such as tax breaks and the same national preferential treatment entitlements enjoyed local residents could also be offered to encourage Hong Kong talent to work and live in the region.

This could be further supplemented with adequate support for families and children’s educational needs. The GBA Initiative will definitely become an important issue for our members and fellow HR practitioners to consider when it comes to talent acquisition and manpower planning. The Institute will keep members updated of the challenges and opportunities associated with the GBA Initiative through our communication channels, as well as training and education programmes.

David Li

President of HKIHRM

What’s Hot

Tapping into the Development Frontiers of Employee Engagement

By Cedric Thiry, Managing Director and Founding CEO, SEED Advisory Limited (Hong Kong)

• Employers frequently refer to their employees as their “greatest asset”, but few organisations are able to successfully align the importance their workforce represents with long-term strategies that keep their employees engaged.

• As technology drives unparalleled business change, digital technologies also provide new pathways to help organisations shift the needle on employee engagement.

W

illiam Kahn of Boston University advocated a new term “employee engagement”, in his 1990 paper “Psychological Conditions of Personal Engagement and Disengagement at Work .” Evidence suggests that since then, despite a great deal of employee engagement talk, little progress has been made in executing the employee engagement walk. When

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performance-management consulting company Gallup, took a deep-dive look at the global issue of employee engagement in 2013 through its “State of the Global Workplace ” study, which involved roughly 180 million employees in 142 countries, the findings revealed that only 13% of employees were engaged in their jobs, while 63% were not engaged and 24% were actively disengaged.

Gallup’s extensive survey came to the conclusion that work does not seem to give people what they want and need, and this can lead to disengagement with the typical result that productivity and innovation potential are lost. Gallup’s latest 2017 “State of the American Workplace Report ” however only registered a 3% improvement on the 2013 figure and represents the

highest engagement number in Gallup’s 15 years of tracking the employee engagement metric.

Establishing an employee engagement framework Understanding the nature of the problem and the various elements that directly influence it is the key to improving levels of employee engagement. Therefore, before any employee engagement plan can be set in motion, it is important to establish a few basic considerations to provide a platform to work from. Principally, the main starting point is the need to understand where the current employee engagement level stands.

At this stage, companies searching for answers sometimes fall into a common trap of mistaking their survey for an employee engagement strategy. Taking employees through a set of survey questions does not lead to improved engagement. Instead, pulse surveys, which include specific questions related to employee engagement within the organisation are a good way to establish a basic overall picture. Pulling together some insights about the theory behind employee engagement and motivation can also help form the outline for setting realistic and achievable goals.

Only once this has been done can an action plan be formulated.

Engagement starts at the top Everyone involved with talent management is familiar with the mantra that engaged employees mean more revenue, lower headcount turnover and a happier workplace. But as the Gallup research suggests, the majority of workers aren’t engaged in their work.

Employee engagement needs to begin at the C-suite level. For an employee to be engaged, they need to believe that the organisation genuinely cares about them. When a leader demonstrates that he or she care about their employees, the likely response is a show of loyalty and commitment to the team and organisation. The best leadership approaches to achieve this are inclusive and open to feedback, which indicate to employees that their voice is important.

Equally important is the need to equip managers with the ability to identify and help employees who have lost the feeling of engagement or become reengaged.

Support from the leadership team Intention from the senior leadership team to drive employee engagement is essential in order to fuel the energy that HR teams and line managers need to properly manage employee expectations. However, while a show of enthusiasm to boost employee engagement is to be welcomed, caution

is also necessary. The worst case scenario happens when a leadership or a management team decide “to do something about employee engagement”, often in an attempt to reverse employee discontentment.

Without a clear vision, an absence of goals and well-planned strategies, organisations are inclined to fall into the trap of “quick fixes” that fail to produce any meaningful outcomes.

It is also crucial that senior managers place their support behind the HR function in their endeavours to build or strengthen a culture of employee engagement. After all, the HR function can only play a leading role with a high likelihood of success once they have received a clear mandate from the management leadership team, and the mandate has been clearly defined. Importantly, the mandate must be supported by an on-going plan, a methodology and a set of flexible tools to accommodate current and future employee engagement needs. Above all else, employee engagement objectives must align with business objectives.

Leveraging on employmentengaging technologies These days, most HR functions have digital systems and apps at the tips of their fingers to engage and motivate employees. The Internet, mobile devices and cloud technologies are allowing businesses and employees to connect in easier and far more ways than ever before. However, technology should not be viewed as the only answer. It’s the technology combined with strategy that makes the difference. Employee engagement is about the work content, so feedback is vital for employees to feel valued and recognised. Employees need to feel that their accomplishments create value for the organisation.

Performance management applications like Impraise and Reflektive allow team members to connect, request and receive real-time feedback. While working remotely employees may find it difficult to communicate and engage with their colleagues, but technology solutions can help to bridge this gap.

HUMAN HUMANRESOURCES RESOURCES••June May 2018

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What’s Hot

Screen capture and annotation tools such as Skitch allow team members to get their points across with sketches and drawings, making mobile idea-sharing straightforward and fun.

New technologies can also help businesses bring flexibility into the traditional office environment, promoting a people-focused culture that can help to increase levels of employee engagement. For example, collaborating messaging software tools such as Slack make it easier for employees in different departments and geographical locations to collaborate. Online collaborating tools allow individual employees and teams to communicate across open, private or direct channels with one another. While similar to the oldschool instant-messenger systems, today’s collaborating tools improve upon the model by automatically archiving conversations. This makes it easier to organise topics into different channels and synching across devices. Collaborating on projects with cloud-computing services such as Dropbox and Google Docs can also make it easier to collaborate on projects with employees that work remotely and propagate a feeling of engagement.

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HUMAN RESOURCES • May June2018 2018

Strategic ways to propagate employee engagement In Europe, employee engagement is often linked to career development opportunities and work/life balance considerations, but in money-driven Hong Kong, these generally rate lower on the engagement scale with remuneration the all-important factor.

For companies looking to identify high potential talent to build a pipeline of engaged employees, identification needs to be done early in their career with careful attention applied to developing specific career pathways supported by adequate coaching and mentoring.

In Hong Kong where individualism, the chase for salary increases and self-performance can negatively affect corporate success, collective engagement instead of individual engagement can be a worthwhile objective. One way to achieve this is for the HR function to focus on creating “work together” environments supported with objectives and outcomes rather than simply promoting the concept of “team spirit”.

Involving employees at all levels in projects, and assigning ownership of projects to employees, increases the visibility of employees across the organisation. This can help to promote

a sense of participating in meaningful work and being valued. Studies, such as the “Fair Project Management, Umicore Innovation Award White Paper ” have produced compelling evidence that organisations that are project, process and product driven with high levels of employee participation and recognition achieve a higher level of employee engagement than functional or divisional organisations. Psychologists term employee project “ownership”, the “endowment effect” because it motives individuals to place greater value on the things that they own. Prime examples of the reverse of the endowment effect are often encountered on the mainland, where problems on the production line can arise because operators and managers may lack a sense of ownership. When line managers feel that they own their production lines, they tend to run them better.

And it is worth remembering, the challenges and issues surrounding employee engagement have been around since businesses first started hiring talent, there is no magic engagement app that guarantees overnight success – so when on the road of engaging employees, be prepared for a few bumps along the way.

Sponsored Feature

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HR

professionals across all levels find it increasingly necessary to prepare themselves for the more challenging, complex business environment. The two postgraduate programmes offered by Hong Kong Baptist University’s School of Business are designed to equip them with both practical and theoretical knowledge for what key competencies in HR will be needed in future.

Geared towards more experienced HR executives, the Master of Science in Strategic Human Resources Management (MScSHRM) is a two-year part-time taught programme comprised of courses focusing on strategies, globalisation and ethics. Graduates are expected to play a key role in an organisation’s senior management team, overseeing the HR function while upholding highest ethical standards in people management.

Intended for those looking to climb up the career ladder or planning to embark on a career in HRM, the two-year, parttime Master of Human Resources Management (MHRM) provides an understanding of the HR function and focuses on practical applications within modern, complex organisations.

“The programmes are designed and developed, in part, based on the support and feedback from employers and industries. Over the years we have established a good reputation for being able to train students with the requisite knowledge and skills expected by organisations. Our students and graduates are our best ambassadors.

They are very willing to recommend their colleagues and subordinates to our programmes,” says Prof Alicia Leung, programme director of MScSHRM. “While our courses are largely prestructured, our speakers seek to choose topics that are not only capacious and significant, but that are timely—topics that address new challenges facing HR professionals, regulatory changes, best practices, as well as the use of new technology,” Prof Leung adds.

Dr Jamie Cheung (left), MHRM Programme Director and Dr Alicia Leung (right), MScSHRM Programme Director, Hong Kong Baptist University

In addition to classroom seminars, presentations, case studies and sharings, overseas field trips are also organised for students to solidify and co-relate what they have learnt and discussed about in classes, and most importantly, to understand how they can be put into practice.

Earlier this year a group of MScSHRM students made a trip to Singapore, including visits to a couple of Singapore companies and the Ministry of Manpower.

Another group of MHRM students also paid a visit to the Shenzhen headquarters of a Hong Kong-listed mainland company to strengthen their knowledge of China labour laws and employment practices.

From time to time, internationally renowned scholars are invited to share their insights. During the “HR Learning Day” held in January, Prof Wayne Cascio, distinguished professor from the University of Colorado, shared with the audience how big data and analytics can be applied to HRM, or as what he called, talent analytics.

“Many of our seminars are not limited to our current students. Their colleagues and friends, as well as our alumni, are welcome to join. Like a big family, we

http://mscshrm.hkbu.edu.hk

build and facilitate a community for alumni, students and HR professionals interested in professional networking,” says Dr Jamie Cheung, programme director of MHRM. There are plenty of reasons why people choose to study the MHRM programme.

The MHRM programme not only can help students boost their competitiveness and employability, professional networking is also seen as a way to open them up to new opportunities, she says.

The MHRM programme is also seen a route to gain a recognised professional qualification. Awarded by the Chartered Institute of Personnel and Development (CIPD) as the first accredited centre in Hong Kong to offer CIPD Advanced Certificate in Human Resources (ACHR), MHRM students who register as CIPD student members are eligible to achieve the CIPD Level 7 ACHR qualification and apply for the CIPD Associate membership upon graduation.

“Modern-day HR professionals ought to be an all-rounded, people person with multitasking capability. Beyond hands-on and strategic skills, they should demonstrate a range of soft skills, ranging from counseling communication to conflict mediation, and should adhere to high moral and ethical standards at all times,” says Prof Leung.

http://bus.hkbu.edu.hk/mhrm

Cover Story

Achieving Meaningful Work in the Era of Technological Disruption

By Ben Oxenham, Research Director – Employee Research, ORC International

• As technology, the gig economy and automation weave themselves into the fabric of most established industries; focus is being realigned on “meaningful work” in relation to self-development, talent abilities and the necessity to fulfil human ownership over workplace activities.

• Creating the conditions for “meaningful work”, no matter what the job involves, requires common themes, which include purpose, direction, challenge, progression, well-being and fulfilment, steered by both the employee and the HR function.

P

erceptions of “meaningful work” are subjective, every individual has his or her own ideas on whether the work they do, or the work of others is “meaningful”. Furthermore, cultural and societal norms create a view that some jobs, industries and occupations are more meaningful

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than others. For example, in many societies the idea of working in the not-for-profit or public sector has a reputation for delivering more meaningful work (charity, civic or public outcomes) than parts of the private sector (fundamentally profit), whereas the latter is known for potentially delivering higher salaries.

However, looking objectively at work, the actual tasks that are involved and the outcomes that they create enables a perception of meaning from a much wider range of professions. In the era of technological disruption and automation, and the shifting of work patterns and practices and where

technology means that many jobs are transitioning quickly, the topic of “meaningful work” has renewed relevance. This is especially relevant as society moves from thinking about the type of jobs humans need to do towards the types of jobs humans should continue to do instead of machines.

Defining “meaningful work” Motivation is a human trait which cannot be replicated by robots, which are programmed to complete a set task regardless. Therefore, examining what motivates people is important in attempting to define meaningful work. According to Harvard Business Review, How Company Culture Shapes Employee Motivation, 2015 , people are motivated to do their best work when their job involves work that they enjoy; work that holds a deeper purpose which resonates with them; and work that provides an opportunity to further develop themselves in some way. These are all concepts currently foreign in the development of machines or Artificial Intelligence (AI).

practitioners can develop meaning in virtually any job, and help navigate and evolve the process as technology continues to disrupt the workplace, specifically different types of jobs.

The “purpose” of work has in recent years gained prominence.

ORC International’s sister company Calling Brands undertook a study in 2012 (Crunch Time: The Power of Purpose ) to look at what drives attraction, retention and productivity at work and which found purpose to be the significant driver. For example, deeper fulfilment from their working lives gained from working for an organisation that demonstrates a sincere desire to make a positive impact on society.

As the concept of “meaningful work” gains momentum, the “power of purpose” has become even more

important than it was when the Crunch Time study was conducted more than a decade ago. Working for an organisation with purpose would lead to 65% of employees going the extra mile for their employer and a similar proportion would feel more loyal toward a business that aims to do more than simply create shareholder value. If purpose is this important it needs to be a primary focus of the external employee value proposition and the internal culture in organisations as they move forward.

Underpinning these trends are the results from ORC International’s 2015 HR Reflections survey , which found that 60% of HR professionals across the Asia Pacific region thought people increasingly seek purpose at work.

But critically half of those surveyed did not think their organisation is prepared for this trend.

Meaning therefore stems from work in which employees and humans can be proud of, where they are able to achieve mastery of skills and tasks, and in which there is a cohesive team in which they can contribute and make choices, and not simply feel like another “cog in a wheel” or even a machine-like human. This definition suggests that meaningful work is not limited to a specific industry or occupation as sometimes perceived, but instead by the quality that we can all extract from the different types of work that we do, where we receive the opportunities, support and context which creates this intrinsic motivation.

Finding a purpose In defining meaningful work, common themes involve having purpose or direction, challenge or progression; and autonomy or a feeling of control for employees at all levels within an organisation. Looked at in turn, it is possible to identify how HR

HUMAN RESOURCES • June 2018

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Cover Story

Progression with meaning Not every employee will want to rise through the ranks but most tend to desire some form of progression in their working lives, and it is therefore important for staff to see a clear pathway for them to follow. In ORC International’s Winning Workplaces 2017 research, employees were asked what is the highest level they aspire to be in their career and found that people who plan to remain individual contributors, i.e. respondents who said that they do not want to become leaders or specialists – tend to be less engaged and are less satisfied with most aspects of their employee experience. The same study also found that nearly a quarter (24%) of employees in Hong Kong are prepared to remain as individual contributors, compared to a global average of 19%.

Undoubtedly there are people who go to work to just do a job, get paid and then go home. Therefore, if clear lines of progression have an impact on employee engagement, it also clearly is influenced by the concept of doing meaningful work. Therefore, if

organisations help employees believe they have the capability to progress and to become more involved in the workplace and their role, would that enhance their expectations and belief in the work that they are doing is meaningful?

This emphasises the importance of having continuous conversations with employees to find out what development means to them and what their unique aspirations are. Employees should be given some responsibility for their own growth plan and encouraged to work with the business to create a flexible, tailored approach to their development.

Those who harbour the ambition to believe that progression is attainable will also likely feel that they have a greater sense that their work has meaning.

Autonomy and control This concept of giving employees responsibility for their own experience in the workplace is a major trend that ORC research and conversations with organisations are revealing. Belief in

personal engagement in the work they do is on the rise and should be viewed as positive with staff feeling more in control of their work, and also in reducing the pressure of employers to take responsibility for engaging their employees. This connects to a broader societal trend for more individual ownership for happiness and health – and in the same way we are now seeing more individuals wanting to take control of their own employee engagement with the work they are involved in. Examples of this can include opportunities for employees to broaden their skills and experience mobility across roles.

In fact, ORC International’s Winning Workplaces 2017 shows that around eight in ten employees tend to agree that it is not just an organisation that is responsible for employee engagement – a third go so far as to say that they have equal responsibility with their organisation to work at developing engagement. And HR leaders agree according to ORC International’s Winning Workplaces 2017 , around 80% feel that both employees and organisations have a responsibility to work at building engagement. A prime example includes inspiring employees to get involved in innovation and recognise them for their efforts. Clearly communicating the organisations’ goals and achievements is another way of inspiring employees to feel their contribution is important. These findings raise the interesting question for the HR function of not, “what can I as an HR practitioner do to help create this experience for employees?”, but instead, “what can I do to help employees create this experience for themselves?”

Technology should enable meaningful work, not threaten it Creating meaningful work in the context of technological change and the emergence of AI is a challenge.

With many sources questioning just how many jobs will be automated in the near future, finding and maintaining any work, let alone meaningful work, is a concern for many.

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However, technology should be embraced as a means to enable more meaning from our work. In its Future of Work report, the McKinsey Global Institute forecasts that with today’s technology roughly half of the tasks that people currently do can be automated, but only 5% of jobs can be entirely automated.

Changes to the way people work in all industries and roles, including jobs currently undertaken by humans, will inevitably in some form be undertaken by machines.

As technology evolves, leading to more flexible ways of working, the effect can be seen in the rise of the gig economy.

Both the gig economy and the automation of jobs widen the scope for more meaningful work from both an employer’s and an employee’s perspective. The current opportunity for automation is largely focused on manual tasks, which often require employees to work alongside machines, providing a

human mindset which automation cannot yet or potentially will never provide. This creates the potential for work which requires a degree of up-skilling and retraining, and as a result, because it involves a clear purpose and includes human development and control, should make it more meaningful.

Furthermore, the gig economy is and will be an opportunity for more meaningful work, providing that the motivation and experience is based on a positive platform.

For people who chose to work in this way, for example, because it provides enjoyment, purpose and flexibility, the gig economy will likely provide a meaningful experience. For those forced into this type of work, for example, because of job loss or a need to supplement income – without the intrinsic motivators of personal choice and pursuit of experience, the meaningfulness of the work may well be lost.

Where next to create a meaningful work environment?

Therefore, when it comes to taking action to promote meaningful work in the age of technological disruptions and automation, organisations need to define their purpose and establish what they are really about. For instance, the good they do for the communities they work in and for the stakeholders that they deliver to. It is equally important to maintain continuous conversations with employees to enable them to take ownership of their own professional development and to define what personally engages them on the road to finding their own unique meaningful work. Furthermore, it is also important to acknowledge that this is not just an HR issue, but a topic that includes C-suite executives. This is not only because the definition of an organisation’s purpose requires consensus and drive among leadership, but because the benefits on offer in defining a purpose as well as meaningful work, go right to the heart of business performance.

HUMAN RESOURCES • June 2018

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封面專題

創新科技潮流下如何替員工尋找 工作意義 ORC International 僱員研究部研究主任 Ben Oxenham

• 隨著既有產業紛紛引入科技、零工經濟和自動化技術，社會也開始追求有意義的工作，這既涉及個人發展與才幹， 亦講求讓個人在工作上享有自主權。 • 無論是甚麼工種，要算得上一份有意義的工作，都必須有其目的、方向、挑戰、發展機會，也要顧及員工的身心健 康及成就感，而這都是靠員工和人力資源部門共同推動的。

眾對有意義的工作有主觀的

然而，從客觀角度來看，工作的實際內容

何謂「有意義的工作」

理解，每個人對自己或其他

及產生的結果令更多行業在大眾眼中有了

工作動力是人類的特性，這是機械人無法

人的工作是否有意義，都有

意義。在創新科技和自動化技術的衝擊

模仿的。機械人只能按照預先編排的程

自己的看法。此外，基於文

下，以及工作模式和做法上的轉變，許多

式完成指定的任務。因此，要定義何謂

化 及社會規範，某些工作 、 行 業 及 職 位 會

工作正因科技的應用而快速改變，引起了

「有意義的工作」，就需要探討人類的工

被視為較有意義。舉例而言，在很多社

大眾再度重視有意義的工作這個議題。尤

作動力從何而來。根據《哈佛商業評論》

會 中，非牟利或公營部門 的 工 作 （ 謀 求 慈

其當社會所思考的問題由「哪些工作需要

在 2015 年刊登的 How Company Culture

善 、民間或公共利益）往 往 被 認 為 比 某 些

由人手來做」變成「哪些工作需要繼續由

Shapes Employee Motivation 一 文 ， 如

私 營企業的工作（牟利為 主 ） 有 意 義 ， 但

人手來做，而不能交由機器處理」，更使

果員工享受工作內容、認同工作的深層價

私營企業的薪酬可能較高。

這個議題備受關注。

值，而且工作能為員工提供個人發展的機

大 12

HUMAN RESOURCES • June 2018

會，他們便會有動力為工作全力以赴。這

近 年 ， 工 作 的 目 的 開 始 受 到 關 注 。 2012

有意義的發展

些都是目前的機器或人工智能發展中較為

年，ORC International 的姐妹公司Calling

雖然不是每一位僱員都渴望升遷，但是大

陌生的概念。

B r a n d s進 行 了 一 項 名 為 Crunch Time:

多數人都希望在事業生涯中有所發展。因

The Power of Purpose 的 研 究 去 說 明 吸

此，公司必須為員工提供清楚的發展路

因此，工作意義的來源在於一份讓員工和

引及挽留員工、提升工作效率的因素。研

向，讓他們有所適從。ORC International

人們感到自豪的工作、能夠純熟掌握技能

究結果發現，工作目的正是一項主要因

的 Winning Workplaces 2017 研究詢問僱

和工作內容的環境，以及一群團結的同

素。舉例而言，公司若真心想為社會帶來

員在事業生涯中期望能晉升至哪一個職

事，讓他們能夠對團隊有所貢獻並參與團

正面影響，員工為該公司工作而獲得的成

級，結果顯示有些員工打算繼續當「個體

隊的決策，令他們不會覺得自己只是個微

就感也會提升。在該項研究發表之後的十

工作者」（individual contributor），並

不足道的小人物，甚至是個像機械人般工

多年間，隨著社會漸漸趨向追求有意義

無意擔當領導角色或專業人士，而他們較

作的人。由此可見，一份有意義的工作並

的工作，工作目的的力量也變得更為重

不會全心投入工作，對工作各方面的滿意

非只限於大眾眼中某種有意義的行業或職

要 。 65% 的 僱 員 會 因 為 在 一 間 有 明 確 目

度亦較低。該調查亦顯示，打算繼續當

位，而是取決於我們可以從各種工作中身

標的公司工作，而願意為僱主付出更多；

「個體工作者」的員工在香港佔近四分之

的得著，以及為我們帶來工作動力的機

另外還有差不多的人數表示，一間不只著

一 （ 24%） ， 在 全 球 平 均 佔 19%。 毫 無 疑

會、支援及環境。

眼於為股東創造價值的公司，會提升他們

問，有些員工只求做好份內工作，準時領

的歸屬感。既然工作目的是如此重要，企

薪下班。因此，如果清晰的發展路向能

找尋工作目的

業在發展時就應該以工作目的為外聘員

夠增加員工對工作的投入程度，那麼從

一份有意義的工作，往往有其目的、方

工價值觀和企業內部文化的首要重點。

事有意義的工作也必定能使員工更投入

向、挑戰或發展機會，並會讓各級員工在

ORC International 的 2015 HR Reflections

工作。所以，如果公司讓員工相信他們

工作上享有自主權或控制權。那麼反過來

Survey 調查也呼應了這項趨勢。該調查結

有能力向上游，亦有能力更加投入自己

看，就可以知道人力資源專才如何能夠為

果顯示，亞太地區 60% 的人力資源專才認

的工作和職責，員工會否因而加強對這

任何一份工作賦予意義，並在創新科技不

為越來越多人講求工作的目的，但有一半

份工作的期望，並相信自己的工作是有

斷影響職場上各類工作的同時，協助及改

的受訪者認為他們的公司並未作好準備以

意義的 ?

善工作流程。

應對這股趨勢。

由此可見，僱主必須常常與員工溝通，了 解事業發展對員工的意義及每位員工的志 向。僱主應讓員工為自己的個人成長計劃 承擔一些責任，並鼓勵他們與公司一起努 力，營造一個靈活的事業發展模式，以迎 合每位員工的需要。員工若深信自己能在 事業上有所發展，也會更認同自己的工作 有意義。

自主權及控制權 ORC International 經 過 一 番 研 究 及 與 企

業交流後發現，不少企業都會讓員工負責 塑造自己的工作環境。員工對工作上投入 感的信心逐漸提高，有助賦予員工更大的 控制權，亦能降低僱主在增加員工投入感 方面的壓力。這也與社會上的大趨勢有關 ──大眾越來越享有對個人健康和快樂的 自主權，也越來越多人希望能掌控自己對 工作的投入程度，例如享有提升不同工作 方面的技能及體驗不同工作崗位的機會。 事 實 上 ， ORC International 的 Winning

Workplaces 2017 研究顯示，每十位僱員中 約有八位認為員工的投入程度不應只是公 司的責任，員工也有責任提升自己對工作 的投入程度。根據研究結果，一些人力資 源 主 管 亦 認 同 ， 約 有 80%的 受 訪 者 認 為 僱 傭雙方都有責任提升員工的投入程度。最

HUMAN RESOURCES • June 2018

13

封面專題

好的例子就是鼓勵僱員參與創新，並表揚

式以機器取代。隨著科技不斷發展，工作

個人選擇和追求為零工經濟工作的體驗

他們的付出。僱主亦可讓員工清楚了解公

方式變得更有彈性，造就了零工經濟的興

等，那麼這對他們來說便失去了意義。

司的目標及成就，從而讓員工感到僱主重

起。

視他們的貢獻。這些研究結果為人力資源

創造有意義工作環境的下一步 ?

界帶來了一個發人深省的問題：「作為人

從僱主及員工的角度來看，零工經濟及工

因此，在創新科技和自動化技術的衝擊

力資源從業員，是否不應問自己能如何為

作自動化擴闊了有意義的工作的範疇。目

下，企業要推動有意義的工作，就要建立

僱員帶來這樣的體驗，而是問自己能如何

前可以自動化的工作，多以人手進行的工

工作的目的和實際意義，例如是造福所在

幫助僱員自我創造這樣的體驗 ?」

作為主。這類工作往往需要由員工操作機

社區及相關人士。企業亦要與員工保持溝

器，當中的人性思維是自動化技術未能達

通，讓員工為自己的專業發展作主，了解

科技應為工作賦予而非扼殺其意義

到，甚至可能永遠無法達到的。有些工作

能夠推動他們在工作中尋找個人獨特意義

隨著科技進步、人工智能興起，在這樣的

需要員工進修相關技能及參與再培訓課

的因素。此外，企業亦應明白，這個議題

環境中要創造有意義的工作實屬難事。很

程，而自動化技術正好創造了這類工作機

除了影響人力資源界外，亦與高級管理層

多人都在質疑有多少工種在不久後會被自

會。因此，這類有清晰目的、能夠推動個

息息相關。這不僅是因為一間企業宗旨的

動化，擔心找不到或保不住工作（尤其是

人發展並可由人手操控的工作，就因而變

定義需要管理層的共識及推動，亦是因為

一份有意義的工作）。

得更有意義。

明確的工作目的和意義所帶來的好處，可

然而，我們應以積極的態度運用科技來提

此外，若有一個良好的平台來鼓勵人們從

升工作中的意義。麥肯錫全球研究所發表

事零工經濟，並提供相關經驗，那麼零工

Future of Work 報告，預測現今的科技發

經濟也可望為工作帶來更多意義。舉例而

展會導致約一半的人力工作被自動化，但

言，如果有人選擇享受這種的工作快樂、

只有 5% 的工作崗位會被完全自動化。人們

目的及彈性，那麼零工經濟就可以為他們

在各種行業和職位上的工作方式（包括目

帶來一份有意義的工作。如果有人是因為

前由人類擔任的工作）勢必會改由某種形

失業或需要補貼收入而工作，而不是出於

直接影響企業的業務表現。

14

HUMAN RESOURCES • June 2018

HR Horizon

Salary Disparity: Hong Kong Features High on Global Gender Wage Gap Rankings

By Dawn Hirsch, Chief Human Resources Officer, HireRight

• Recent mandatory reporting requirements of data on gender pay implemented in the UK have given fresh impetus to the global issue of females being paid less for doing the same jobs as their male counterparts.

• Hong Kong ranks 100th on a list of 144 countries and jurisdictions, according to the World Economic Forum’s Global Gender Gap Index 2017 findings, with a gender pay difference higher than Singapore and the UK and slightly higher than the gaps seen in Australia and the US.

W

ith the rising prominence of campaigns championing women’s rights including high-profile focus on gender pay gap issues, it feels as though 2018 is proving to be The Year of Women.

Globally, organisations face escalating pressures, from new reporting requirements in the UK to the possibility

June2018 2018 16 HUMAN RESOURCES • May

of proactive analyses in Germany, to continued regulatory focus throughout the European Union and in Australia.

Moreover, in the US, state legislators have launched a series of efforts to monitor and regulate comparative pay levels and to limit the ability of organisations to set starting pay based upon rates from prior employers.

It is no secret that women continue to be paid less than their male counterparts. In the UK, an annual survey of hours and earnings datagathering exercise conducted by the Office of National Statistics revealed a median 9.8% disparity. Meanwhile, in Hong Kong, an analysis of government statistics by the Equal Opportunities

Commission last year comparatively put the gap at 22%. What’s more, the gap has widened from 19% a decade ago. Education (where women earn HK$9,800 less than their male counterparts on a monthly basis), finance (HK$8,800 less), and health and social services (HK$8,000 less) were found to be amongst the industry sectors with some of the widest pay gaps.

Indeed, according to the World Economic Forum’s Global Gender Gap Index 2017 , Mainland China and Hong Kong come 100th out of 144 countries for economic opportunity and participation – only slightly ahead of India (108th), Japan (114th) and Korea (118th), and trailing behind New Zealand (23rd), and Southeast Asia including Singapore (27th), Australia (42nd), the US (49th) and the UK (53rd).

In fact, the issue is so prevalent that the World Economic Forum predicts it will take over 200 years for the economic gap to be closed. Clearly, there is a lot of work to be done to achieve parity.

Cause and effect One of the greatest challenges faced is that the inequality is systemic. For example, many organisations and recruiters will ask candidates for their salary history which, if used to benchmark the pay that will be offered, naturally poses issues as it only perpetuates pre-existing wage gaps. Perhaps contrary to popular belief, on-going research from PayScale, a provider of on-demand compensation data and software (albeit in the US) further suggests that women who decline to disclose this information when asked are penalised and paid approximately 1.8% less than women who do share.

Men, on the other hand, are rewarded and paid around 1.2% more in the same scenario.

It is also important to understand the distinction between the issue of the gender pay gap versus that of pay equality. Whilst both equal pay

and the gender gap deal with the difference (disparity) in pay women receive in the workplace, they are two different issues. Equal pay means that men and women in the same employment performing equal work receive equal pay. On the other hand, gender pay gap is a measure of the difference between men’s and women’s average earnings across an organisation or the labour market. It is expressed as a percentage of men’s earnings. In Britain, for example, there is an overall gender pay gap of 18.1%. In Hong Kong, while the Sex and Discrimination Ordinance introduced in 1996, does prohibit discrimination against men or women on the basis of sex, marital status and pregnancy in seven public domains including employment, the reality is that with the lack of transparency around pay scales, claims made around wage gaps are difficult to establish.

Research identifies causes of gender pay gap Globally, the causes of the gender pay gap are complex with factors including women stepping off the career track to have a family. Contributing factors to the pay gender gap, according to research conducted by Henrik Kleven, an economist at Princeton University, include a sharp decline in women’s earnings after the birth of their first child, males occupying the majority of the most senior roles (which tend to be the highest paid) and females not performing as well as men when it comes to negotiating wages.

In their book Women Don’t Ask – Negotiation and the Gender Divide , researchers Linda Babcock and Sara Laschever explain how even one small negotiation can accumulate into a lifetime of disadvantage. Their book cites the example of an equally qualified male and female each receiving job offers for $25,000 at age 22. The man negotiates and gets his starting salary raised to $30,000 and the woman accepts the $25,000 offer. They both get 3% raises every year until they’re sixty years old,

and neither negotiates any more pay raises. By the time they reach 60, the gap between their salaries would have widened to more than $15,000.

Transparency around pay can help to remove the question of genderinfluenced pay. Pay transparency lets everyone know what their colleagues are earning and would make women aware if they are making less than their male counterparts. Some tech companies are already implementing these strategies in order to reduce the gender pay gap. For example, New York-based analytics company, SumAll provides an online document so employees can view the salaries and pay histories of all their colleagues.

Implications of the UK’s new pay gap reporting for Hong Kong In the UK on April 5, every company that employs more than 250 people must have reported on the pay disparity gap between their male and female workers. About half of the UK workforce will be affected by the new reporting rules, which encompass 9,000 employers and more than 15 million employees. There are no plans to punish companies that have a wide gender pay gap, but the government has stated that it will publish sectorspecific league tables, highlighting companies failing to address pay disparity between men and women.

At the moment, UK companies with operations in Asia are not required to comply with the UK requirements.

However, according to the UK government, organisations must count an employee based overseas if they have an employment contract subject to English, Scottish or Welsh law. Owing to the cross-jurisdictional application of the regulations, HR personnel in Hong Kong who work in UK companies to which the regulations apply are advised to keep personnel files up to date and to ensure that there are clear records available detailing employees’ remuneration packages, wage periods and hours worked.

HUMAN RESOURCES • June 2018

17

HR Horizon

Employees working on an assignment or secondment basis in Hong Kong from the UK or employees who regularly travel to work in the UK may very well fall under the remit of the regulations.

Having the relevant data could also help the HR function with any equal pay risk analysis, which may be carried out at a local or global level within the organisation. Even if the regulations don’t have any immediate effect on Hong Kong, employees who work for UK companies may find that there is renewed focus on gender pay gap issues in their workplace. For example, in Singapore, local bank DBS has disclosed a 1% gender pay gap, though this is adjusted for ranks and location.

Price the job, not the person So what can businesses do to help close the gender pay disparity? From a recruitment standpoint, there are some simple changes that can be easily implemented. One plain and simple policy is don’t ask the salary history question. It’s not in the best interest of

18 HUMAN RESOURCES • June 2018

the candidate, regardless of whether their previous salary was low or high, and automatically puts them in an awkward position of having to decide what they want to reveal. It may also give them the wrong impression about your approach to talent acquisition.

Also, price the job, not the person. Set a salary range for the position and stick to it – this levels the playing field both from a gender and age perspective, so that employers can focus on positionrelated criteria such as candidate experience, skills and cultural fit. It is interesting to note that a number of US states and cities have recently passed or proposed legislation to ban salary history questions from the recruitment process – to clarify, this is different from “salary requirement”, which is the pay a candidate expects to receive.

There is also the option of changing the lines of salary enquiry. It’s fair that employers want to ensure a candidate is affordable before investing additional time and resources into the hiring

process, so tweak the question to salary expectations, where the candidate can set the benchmark.

Furthermore, be transparent about how pay is determined within the organisation. This could empower candidates (and existing employees) to measure themselves against expectations for each grade.

Gender parity will take some time yet to come to fruition, and recruiters and employers cannot bear the responsibility alone – it must be a collaborative effort from all corners of society to move the needle. Every contribution towards closing the gender pay gap can help to build on the momentum and promise of this year, and promote a sense of social justice and equal opportunity in society as a whole.

HR Toolbox

Challenges the HR Function Faces when Managing Hong Kong Employment Visa Applications

By Fanny Chan, HK Immigration Adviser, HK Visa Connections Colin Bloomfield, CEO, HK Visa Connections & British Connections Limited

• As a globally connected city, Hong Kong employers need access to top talent sourced internationally, which means devoting significant resources to managing employee visa immigration applications and processes, a task that frequently involves the HR function.

• The Hong Kong Immigration Department receives thousands of employment visa applications every year, but to ensure that an application progresses smoothly, it is vital that correct documentation is provided and the reason for the application is adequately substantiated.

W

hether it’s a short-term contract or a longer-term posting to Hong Kong, employees that do not have the right of abode or right to land in Hong Kong are required to obtain an employment visa before they are eligible to take up work. While every

company and every HR function will have its own procedures for dealing with the immigration and visa requirements, failure to obtain an employment visa could mean the employment contract offered is invalidated and the opportunity for an employer to hire a strategic employee is delayed or lost.

The application process Applying for a Hong Kong employment visa can often be a complicated process, but with the right approach and knowhow, some of the pain-points can be reduced and even eliminated.

Often, the visa application not only involves managing the paperwork for

HUMAN RESOURCES • June 2018

19

HR Toolbox

Providing the correct information is paramount

the employee, but also their family, which can make the process even more complex and time consuming. But not getting the process right can have potentially disastrous implications, from an outright visa refusal, to delaying the process to such an extent that the employee loses interest in the job offer. The knock-on consequences for not having the visa documentation application in order can have a negative impact on both the employer and the employee, along with the employee’s family. Good examples include not securing school places, losing down payments on accommodation, or the cancellation of travel plans, all of which cost both money and goodwill.

Navigating the visa application process From an HR perspective, whether the HR function handles one visa application a year, or several visa applications every week, two applications are rarely, if ever the same, and assembling the substantial amount of documentation required to support a visa application can be time consuming and demanding.

For HR functions that prefer to handle visa applications in-house, it pays dividends in time and costs saved, and not to overlook frustration and disruption, to have a dedicated individual or team that spend time

20 HUMAN RESOURCES • June 2018

learning the visa application processes and keeping up to date with changes in visa application requirements.

Alternatively, choosing to outsource the visa application process to a reputable third party agent can provide benefits. Notable benefits can include reassurance that the application will be properly documented and reviewed to ensure forms are completed correctly and supporting documents are in order before the application is submitted. In general, the immigration department needs evidence of the applicant’s employment contract or a letter of appointment, the employer’s business registration certificate and proof of its financial standing and other supporting documents such as company background, range of products and markets.

A reputable agent will also pre-vet any application to identify potential hurdles before they arise, saving the employer time and money on an application that otherwise could be rejected. There are also other benefits to consider.

Because agents are constantly handling visa applications, they will be aware of the latest developments in visa application requirements and any impending changes which a HR practitioner, without visa application knowledge, would find it challenging to stay on top of.

Being aware of the range of visa options that can apply to an employee and their family is essential. Immigration officers usually require a detailed explanation as to why an employer wants to sponsor an employee to fill a particular position within a company. Essentially that the employee applicant is a “professional” and meets the specified requirements stated in the General Employment Policy (GEP) under Hong Kong immigration law. Knowing how to explain why a position cannot be filled locally is critical to a successful application, yet many employers are either unaware of the need to provide specific details or don’t take the time to get this part of the visa application process correctly explained.

Common mistakes resulting in visa application rejection Common mistakes often made by employers that can cause delays or visa application rejection are numerous and varied. They can include mistakenly omitting some of supporting documentation necessary to ensure smooth and fast approval, or being unaware of the need for sponsorship by the employer for a non-local employee if the employment position being offered is temporary or unpaid for example.

Another avoidable, but common, cause of delay for an employee being able to take up a confirmed employment position, is forgetting to remind the employee that they need to get their visa activated before they start working in Hong Kong; even if the employment visa is issued whilst they are currently in Hong Kong. Unless the employee validates the visa, they will remain on visitor visa status. Also, not being aware of nationalities that will not be considered eligible for a Hong Kong employment visa under the GEP can be problematic.

How long does it take to process a visa application?

Most employment visa applications take between four to six weeks to process

once submitted, although the process can be delayed if the application is incorrectly documented and the Immigration Department requests additional information. For example, it is important to get job titles and descriptions right at the beginning to ensure credibility of the employee’s work visa application. In the worstcase scenario, having an employment visa refused can have long lasting implications for an employee; as well as a company. While it is possible to get a further visa issued, the refusal will remain on the immigration record for an individual and, from a company perspective, having a refusal against its record could potentially cause future applications to be more challenging. It is possible to set up a check-list which includes application templates, online application forms and screen casts on how to complete the forms, but these need to be updated regularly as visa application requirements are subject to change.

Who qualifies for a dependent visa?

Not all employees presented with job offers to work in Hong Kong are married and Hong Kong immigration laws are generally not as amenable to issuing visas to non-married dependent partners as many other countries or jurisdictions. Applying for visas for same sex partners and unmarried partners presents unique challenges, which are not easily dealt with. The recent high profile legal challenges for same sex rights have not yet moved the Government’s position on same sex partners, who to date, are still not recognised as dependents. At the same time, unmarried partners, regardless if they are same sex or not, are not entitled to dependent visas.

Visa schemes designed to attract a diversity of talent In addition to the GEP for non-Mainland residents-professionals, to help streamline application processes

and allow Hong Kong employers to tap into different talent pools, a number of specific visa schemes have been implemented. These include the Admission Scheme for Mainland Talents and Professionals (ASMTP), Quality Migrant Admission Scheme for the Second Generation of Chinese Hong Kong Permanent Residents (ASSG) and a Quality Migrant Admission Scheme (QMAS), which is applicable to applicants with a unique range of skills and accomplishments. Comprehensive details about each scheme are available on the Hong Kong Immigration Department website.

With the onus on the employer to satisfy the Hong Kong Immigration Department that a work visa should be granted for the purpose sought, it is paramount to ensure that the application details and supporting documents are complete and correct.

Making Busin ss Sense Targeting Your Customers for MAXIMUM Results

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HUMAN RESOURCES • June 2018

21

China Focus

Matching Workforce Talent to China’s Productivity Challenge

By Katherine Qu, Senior Director, ChapmanCG

• As multinational and mainland Chinese owned organisations alike seek ways to boost productivity by getting more from their employees, employers need to shift their thinking about their workforce as “labour” to developing people as “talent”.

• Since wage growth has largely outpaced productivity growth, to rekindle their productivity drive, proactive organisations in China are energising their workforce with agile HR systems designed to appeal to a growing employee workforce with less traditional employment expectations.

H

igh levels of employee turnover, a shortage of skilled talent, and dwindling engagement levels are just a few of the challenges that HR functions face that have an impact on productivity within their mainland China organisations. Some may argue that it should come as no surprise that China’s

22 HUMAN RESOURCES • June 2018

productivity has slowed: moving workers from a largely agrarian society to an industrial one always leads to high growth rates. As that period of China’s advancement comes to an end, and the country no longer competes based only on low-cost manufacturing labour, maintaining previous levels of productivity is hard.

The scale of the challenge According to global forecasting and quantitative analysis firm, Oxford Economics, China’s labour costs are now only 4% cheaper than that of the US. That's because wages in China have risen much faster than increases in productivity. And because China no longer enjoys its once comparatively

cheap labour, and more organisations rely on China for profit, it must now switch focus to productivity. But what can HR leaders do to improve productivity within their organisations through talent recruitment and management? And what tools do they have at their disposal?

In the midst of China’s economic repositioning—which includes aiming to produce higher value products, which require higher-level skill sets, which translates into higher salaries— the reality is that organisations have their work cut out for them. Many business leaders will look to the HR function to help solve the huge talent management challenges, which means HR professionals in China must find a way to curb attrition rates and reverse declining productivity levels.

Talent acquisition, the importance of getting it “right” first time A key problem facing a lot of organisations in China—local and multinational companies (MNCs) alike—is the ability to source and attract the right kinds of talent, which can significantly impact productivity objectives. The progressive shift from transactional, HR practices in China—examples of which include HR administrative tasks that usually revolve around employee data, process and procedures, payroll and timekeeping, which is a fairly common shift that happens within HR as organisations and any local market and economy matures—has also necessitated that talent leaders not only understand the external market, but also understand the business at its current state and where it plans to go in the future. This need to understand the talent gaps today, as well as forecast for six months and even one year down the track, is critical because it directly impacts to an organisation’s ability to future-proof itself.

strategise. The HR function also needs to be able to offer advice on which skills are mission critical for today versus which skills can be learned on the job for the future. Whether internal or external, strong talent acquisition strategies can help identify or hire the right talent and reduce attrition rates which can led to higher productivity and a better working environment.

In addition to forward-planning, talent leaders also need to recognise the importance of having realistic expectations. They need to know their local talent market so they can advise their hiring managers when to cast an internal net versus a wider geographic net or when it’s best to hire for potential. To achieve this, they need to work to build a strong relationship with their organisation’s business leaders so that they can counsel on the importance and effectiveness of quality job descriptions. Without these systems, the ability to build the skilled workforce necessary to sustain productivity and drive growth is negatively impacted.

The employee experience With turnover costs high and productivity levels often not reaching their full potential, effective talent management systems have never been more critical to an organisation. But the old talent management systems of the past are simply failing in today’s climate. Traditional career paths and workforce planning models no longer work in today’s rapidly changing and diverse workplace.

Today, employees are more inclined to look for non-traditional things from their employment experience, which can range from career development to work/life balance expectations.

To remain competitive, the HR function must be able to create talent management systems that address the current and future needs of the organisation with a focus on the employee experience. Robust training programmes, for example, that show employees at all levels of their career progression matters, will go a long way to retaining key talent in China.

Talent leaders must avoid finding themselves in the perpetual loop of hiring for key positions and so meaning that they are unable to effectively

HUMAN RESOURCES • June 2018

23

China Focus

AI to the rescue Artificial intelligence, (AI), has proven quite helpful in the recruitment process. From predictive analytics to candidate/employee mapping and even candidate interactions, AI is enabling talent teams to be a lot more productive and effective in their jobs. One of the benefits lauded by proponents of AI, is that it helps to minimise unconscious biases, which has huge benefits when creating a diverse and inclusive work environments. And AI’s influence is not limited to the hiring process; it has spread through to the people management function. Unfortunately, however, while AI has gained traction in the talent management space, the reality is that HR and talent leaders must not only learn about the technology itself, but also the strategic applications technology can offer to their own organisations. Essentially this means that while more organisations are using AI in the talent space, the reality is HR leaders have to spend time learning what technologies are out there that can help them, and then understand those technologies. They also need to assess their organisation’s level of readiness to use those

24 HUMAN RESOURCES • June 2018

technologies. And if their organisation is indeed ready, strategise the best way to integrate those technologies into the current systems. Without a clear understanding of the strategic pros and cons technology can offer to the unique needs of an individual organisation, the talent management strategies could misalign with productivity objectives.

Linking talent acquisition and retention to employer branding Alongside technology is the growing importance of an employer brand strategy. And one of the ways of attracting and retaining employees is by ensuring their aspirations are aligned with their employer’s branding.

Facing stiff competition to attract top talent, one way both local and MNCs are distinguishing themselves is by taking charge of their “employer branding story”. To build branding awareness, companies are creating stories that highlight their competitive advantages from a talent perspective.

If strong work/life balance policies are considered an organisation’s strategic core value, for example, it is reflected in the organisation's social presence, for instance, on the company website.

Employees, often untapped assets, can also make effective brand ambassadors.

Forward thinking employers that recognise this have been identifying top performers and getting them involved in their brand awareness activities. Good examples include employees involved in their organisation’s social presence— be it at a charity, a recruitment drive, or to interact with their organisation on social media. They not only help to build and promote the brand strategy, they often provide better ideas about how the organisation can go about communicating it. At the same time, a trend that is far from unique to China, but what companies need to be increasingly aware of is the younger generation wanting to work in ways that match with their lifestyle. This has led to many MNCs allowing their China operations to operate outside of their corporate norms (where it makes sense) to remain competitive in the local marketplace.

Mainland employers compete with foreign firms to attract top talent Ten years ago, mainland talent, especially millennials, were flocking to MNCs. They provided growth, training and opportunity. But those times have changed. These days MNCs are often perceived to operate under HR and talent management systems that seem outdated and with unnecessarily rigid structures that slow down career progression. It’s also becoming apparent that many mainland employees dislike having to move abroad simply to move up the career ladder, which historically has been the only way to advance their careers working for an MNC. Furthermore, mainland employers often offer higher salaries and talent management programmes and compensation practices aligned with local cultural norms. With the need to raise their productivity game a pressing issue, while some organisations may look to their inventory or assets to boost productivity, robust employer brand strategies and attention focused on hiring the “right” talent can also contribute to higher productivity and help create a better working environment.

中國焦點

適當配對人才以營合中國生產力的 挑戰 ChapmanCG 高級董事 Katherine Qu

• 跨國企業和中資機構紛紛設法提高員工的生產力，但僱主應改變思維，不應視員工為「勞工」，而視之為「人才」。 • 由於工資增長的速度遠遠超過生產力提升的速度，為重新激發生產力，中國一些較進取的機構開始因應越來越多員 工對突破傳統僱傭關係的期望，因而建立靈活的人力資源制度，為員工注入新動力。

中

國內地機構人力資源部門面

勞動力面對巨大挑戰

中國經濟正重新定位，以生產高價值的產

對重重挑戰，包括員工流失

根據全球預測及計量分析機構牛津經濟研

品為目標；這對員工的技能有較高要求，

率高、缺乏高技能人才、員

究院的數據，目前中國的勞動力成本只較

所需薪金也較高。在這情況下，機構面對

工投入度下降等，影響了機

美國低4%，原因是中國工資增長速度遠高

艱巨的任務。許多經營者仰賴人力資源部

構 的生產力。有人認 為 中 國 的 生 產 力 下 降

於生產力的提升速度。由於中國不再享有

門協助應付人才管理的巨大挑戰；這意味

是 意料中事：勞動人 口 由 農 業 社 會 轉 移 至

較低勞動力成本的優勢，而越來越多機構

着中國的人力資源專才必須設法減低流失

工 業社會，往往導致 高 速 增 長 ； 這 段 增 長

又倚賴中國市場求取盈利，中國必須重點

率，扭轉生產力下降的趨勢。

期 結束後，中國不再 僅 以 製 造 業 的 低 勞 動

提高生產力。人力資源部門可如何透過人

成 本競爭，要維持先 前 的 生 產 力 水 平 便 十

才招聘和管理，為機構提升生產力？他們

一開始羅致合適人才的重要性

分困難。

又可以運用什麼方法呢?

中國的許多機構，不論是本地企業還是跨

HUMAN HUMANRESOURCES RESOURCES••June May 2018

25

中國焦點

國公司，都面對一個主要難題：如何物色 並吸引適當的人才。這對能否達到生產力 的目標有重大影響。以往中國的人力資源 工作以行政程序為主，包括處理員工資程 序、發放工資、計算工時等行政工作。隨 着機構和本地市場及經濟日趨成熟，人力 資源工作漸生變化，人力資源專才不僅要 瞭解外在市場的情況，也要熟悉機構目前 的業務，以及日後的發展方向。了解目前 人才缺口，以及未來六個月以至一年的人 才需求預測至關重要，這直接影響機構應 付未來挑戰的能力。 人力資源專才應避免沒完沒了地招聘機構 要員，否則便不能有效地制定策略。人力 資源部門應為機構提供意見，說明員工哪 些技能是今天實踐機構使命必需的，哪些 技能則可在工作過程中學習，以備將來所 需。無論對內或是對外，恰當的聘任人才

人工智能的協助

員工往往是尚未發掘的資源，他們也可以

策略有助物色或聘用適合的人才，減低流

人工智能在招聘過程中的確很有幫助。憑

是有效的品牌大使。高瞻遠矚的僱主若明

失率，從而提升生產力，締造更佳的工作

藉預測分析、應徵者／員工配對，以至與

白這個道理，物色表現優秀的員工，安排

環境。

應徵者互動等功能，人工智能讓人力資源

他們參與品牌推廣，包括出席機構的社會

團隊的工作更具效率。提倡應用人工智能

活動，例如慈善工作、招聘日，或在社交

除了要策劃未來外，人力資源專才也須明

的人士指出，人工智能有許多好處，包括

媒體上與機構互動。他們不僅有助建立並

白期望要切合實際。他們有需要認識本

能減少不自覺的偏見；這對於營造多元化

推廣品牌策略，還往往提出更好的點子，

地的人才市場，以便向負責招聘的管理

和包容的工作環境有極大幫助。而人工智

讓機構有效地表述品牌。此外，公司還必

人員建議何時在機構內部物色人才，何時

能不僅可於招聘過程中應用，而且有助人

須留意，年輕一代員工希望工作模式符合

向外招聘，或何時是聘請人才的最佳時

事管理工作。然而，人工智能在人才管理

他們的生活方式。這趨勢並非中國獨有。

機。為求順利做到以上工作，人力資源專

界雖有其吸引之處，但人力資源和人才管

有見及此，許多跨國公司在合理情況下容

才有需要與機構的業務主管建立穩固的關

理專才不僅要學習人工智能技術，也要瞭

許旗下的中國業務脫離機構本身的慣常模

係，以便向他們提供意見，制定恰當的職

解在機構內運用科技的策略。雖然，越來

式，以便在本地市場保持競爭力。

位描述，有效地招聘適當人選。假如沒有

越多機構在人才管理上運用人工智能，但

這些制度，便會妨礙建立具備適當技能的

人力資源專才要花時間瞭解哪些科技可幫

團隊，以致未能維持生產力和推動業績增

助他們，並加以學習，還需要評估其機構

中國內地僱主與外國機構競逐頂尖 人才

長。

是否準備就緒，以應用該等科技。假如機

十年前，中國內地的人才，特別是千禧年

構已經準備好，人力資源專才便須制定策

代出生的一群，紛紛投身跨國公司；這些

員工的體驗

略，找出這些科技與現有系統結合的最佳

公司具備增長前景、提供培訓課程和發展

員工流失的成本高昂，生產力又往往未能

方法。若不能因應個別機構的獨特需要，

機會。時移勢易，今天跨國公司給人的印

全面發揮，有效的人才管理制度對機構來

清楚瞭解應用科技的利弊，相關的人才管

象，是人力資源和人才管理制度過時，架

說更顯得重要。然而，舊有的人才管理制

理策略便有可能與生產力目標不符。

構欠靈活，窒礙事業發展。另一個明顯的 趨勢，是內地員工不喜歡純為爭取晉升機

度完全不能適應今天的環境。在今天迅速 轉變和多樣化的職場上，傳統的職業發展

聘任及挽留人才與建立僱主品牌

會而移居外國，而傳統以來這是在跨國公

路徑和人力策劃模式已不再適用。

除科技發展外，僱主的品牌策略也日益重

司發展事業的唯一方法。此外，內地僱主

要。確保員工的抱負與僱主的品牌相符，

往往提供較高薪金，而人才管理計劃和薪

現今，員工傾向從工作中尋求非傳統的體

是吸引及挽留人才的方法之一。面對吸引

酬福利制度又符合本地的文化模式。由於

驗，例如事業發展，以至工作與生活平

頂尖人才的激烈競爭，本地和跨國公司都

提高生產力是企業急須處理的課題，有些

衡等。為保持競爭力，人力資源部門必

要突出自己，方法之一是建立自己的「品

機構會著眼於存貨或資產着眼，提升生產

須建立能配合機構現有及未來需要、重視

牌故事」。為建立品牌知名度，公司紛紛

力；而鮮明的僱主品牌策略、注重聘用適

員工體驗的人才管理制度。例如設立完

創作故事，突顯自身在人才策略方面的競

當人才，也可提高生產力，並有助創造更

善的培訓計劃，向各級員工展示其事業發

爭優勢。舉例而言，假如機構重視工作與

佳的工作環境。

展路徑，將大大有助中國企業挽留重要

生活平衡，視之為策略性核心價值，便會

人才。

透過公司網站等途徑宣揚。

26

HUMAN RESOURCES • June 2018

Legal Highlight

Handling Sexual Harassment Complaints: The Legal Framework Position in Asia

By Fiona Loughrey, Hong Kong-based Partner and Head of Asia Employment Team, Simmons & Simmons May Lu, Shanghai-based Partner, Simmons & Simmons Marcus Teo, Singapore-based Associate, Simmons & Simmons JWS

• Asia has not been immune from the impact of the Weinstein scandal, the #MeToo movement and publicised claims of harassment and abuse. It is expected that sexual harassment complaints will continue to become more common; many of these will, inevitably, refer to the workplace.

• Sexual harassment complaints not only expose employers to potential legal claims, but also put reputation, employee relations and morale at stake. It is vital for employers to deal with complaints properly, and to be seen to do so.

D

evelopment of sexual harassment laws in Asia has lagged behind that elsewhere.

Where legal prohibitions exist (for example, in Hong Kong), the basic legal concepts overlap with the laws in Australia, the US and the UK.

regarded as conduct in the course of employment. For example, employers may be liable for their employees’ conduct at an annual dinner or other work-related functions, during business trips or at casual after-work events.

What is sexual harassment?

In Hong Kong, sexual harassment is prohibited by the Sex Discrimination Ordinance (SDO), which applies to all employers in Hong Kong, subject to limited exceptions. Without taking “reasonably practicable steps” to prevent its employees from committing sexual harassment, an employer may be held vicariously liable for the actions of employees in the course of employment, regardless of whether such actions are taken with the employer’s knowledge or approval. This should be a point of real concern for employers, particularly given that sexual harassment occurring outside normal business hours or outside the physical workplace will often be

28 HUMAN RESOURCES • June 2018

Take Hong Kong as an example, “sexual harassment” is defined under the SDO as any unwelcome sexual behaviour in circumstances where a reasonable person would have anticipated that the harassed person would be offended, humiliated or intimidated, or conduct of a sexual nature that creates a hostile and intimidating environment. Women can be perpetrators as well as victims.

Harassment does not need to take place between a man and a woman; “same sex” harassment is also outlawed.

Unlike in Hong Kong, there is no clear and uniform legal definition of “sexual harassment” or “harassment” in Singapore and China, under either the

Protection from Harassment Act (POHA) or Article 40 of the PRC Law on Protection of Women’s Rights and Interests (LPWR).

Some examples of sexual harassment which are likely to be recognised and accepted as such in all jurisdictions include: touching, grabbing or deliberately brushing up against another person; lewd gestures; suggestions that sexual co-operation, or the toleration of sexual advances, may further a person’s career; sexually derogatory or stereotypical remarks, and persistent questioning about a person’s romantic or sex life; and sexual jokes around the workplace, or displaying sexist or other sexually offensive pictures or posters. Repeated behaviour is not essential; a single incident can constitute harassment.

An ongoing course of conduct can be considered sexual harassment even if each element of the conduct would not constitute harassment when taken in isolation.

Internal polices Leaving aside the respective legislative positions, many multinational groups elect to have in place global policies dealing with harassment (and discrimination and retaliation). This is particularly the case where the group parent or headquarters is based in jurisdictions with developed relevant laws, such as Australia, the US and the UK. While the policies may not always be expressed to be mandatory, it is common practice to expect employees to adhere.

Actions to be taken in the event of a claim of sexual harassment Notwithstanding the absence of any specific legislation which requires such policies or imposes sanctions on employers in Singapore and China, it is important to handle sexual harassment complaints carefully. Apart from statutory provisions, employers owe duties to employees to ensure compliance with express and implied contractual duties and other internal policies. Failure to handle sexual harassment complaints effectively or exposing an employee to harassment in the course of employment may amount to a fundamental breach of an implied duty of mutual trust and confidence (or failure to provide the required working conditions and protections, in the case of China); this may give rise to constructive dismissal and other claims.

Complaint handling Employers must also ensure that complaints are addressed in an impartial and prompt manner. An internal complaint handling procedure provides employers with an opportunity to deal with complaints at the earliest opportunity and, in practice, this can often be effective in reducing the risk of a complainant resorting to external redress (such as initiating court proceedings).The investigator must be impartial and neutral (for example, he/she must not be related to the complainant or the accused and must have had no involvement in the matters under investigation).

The investigator should emphasise the confidentiality of the matter and that the company will not tolerate retaliation against, or intimidation of, the complainant or anyone who participates in the investigation. Open questions that allow the interviewees to offer their version of events should be asked, and the investigation should not be limited to interviews.

If the accused employee is suspended, employers must pay particular attention to internal and external communications when dealing with questions relating to the accused employee’s absence (to avoid a presumption of wrongdoing, or stigmatisation). A neutral approach is to inform that the employee is on leave, without disclosing any other information.

How to minimise potential exposure?

Minimisation of potential exposure on the part of the employer can be achieved by taking all reasonably practicable steps to prevent or tackle sexual harassment in the workplace. Such as the implementation of a written antiharassment policy, regular training on the policy, ensuring that employees have sufficient knowledge and understanding of the policy, ensuring that adequate complaint-raising channels and effective complaint-handling procedures are in place, monitoring effectiveness of the policy, taking specific steps to avoid trouble at “hot spots” (such as office parties), and imposing appropriate disciplinary sanctions against anyone found to be responsible for harassment, up to and including summary dismissal.

HR takeaways Apart from the financial impact, the non-financial repercussions (such as reputational damage, low morale and high turnover rate) must be taken into account. Reputational issues are also relevant and social media in particular is a powerful tool for aggrieved employees, or former employees.

Inevitably, some investigations will involve looking at personal data (such as email correspondence, instant messages, hard copy documents and CCTV). The

Personal Data (Privacy) Ordinance (PDPO) in Hong Kong and Personal Data Protection Act 2012 (PDPA) in Singapore require data users to inform data subjects of various matters on or before the collection of personal data. A well drafted Personal Information Collection Statement (PICS) will usually cover the use of personal data for investigation purposes.

In relevant jurisdictions, care needs to be taken not to create unnecessarily non-privileged documents that may later be disclosable, whether in litigation, pursuant to a data access request or to government authorities. It is important to remember that disclosable material is likely to include records of interviews with employees, and could include emails and letters between management which had been intended to be confidential.

Potentially relevant documentary evidence such as email correspondence, instant messages and hard copy documents must be taken into account.

There is no specific legislation protecting whistleblowers in Hong Kong, Singapore or China. In practice, many multinationals elect to adopt a global or regional whistleblower protection policy.

In such cases, it will be important to establish whether the individual could be protected under the policy.

Confidentiality is an extremely important part of the process. Anyone who participates in an investigation must not disclose or discuss the case or the names of those involved, including the names of the person making the complaint and the alleged harasser, with anyone who is not directly involved in the matter.

When it comes to safeguards against sexual harassment at work, there should be a zero tolerance attitude towards sexual harassment and a written anti-sexual harassment policy applied to all levels of staff, outlining details of how to report to the personnel handling complaints and the corresponding disciplinary action for offenders.

HUMAN RESOURCES • June 2018

29

法律點題

如何處理性騷擾投訴：亞洲法律框架 的立場 Simmons & Simmons 香港辦事處合夥人兼亞洲僱傭團隊主管 羅嘉莉 Simmons & Simmons 上海辦事處合夥人 陸禕媚 Simmons & Simmons JWS 新加坡辦事處律師 Marcus Teo

• 繼荷里活製片人 Harvey Weinstein 爆出性醜聞後、 「#MeToo」運動也如火如荼，不少人紛紛公開表 示曾遭性騷擾及性虐待。有關性騷擾的投訴料將有 增無減，當中更難免涉及職場性騷擾。 • 性騷擾的投訴不但可使僱主面臨法律行動，同時會 有損企業聲譽、僱員關係及員工士氣。僱主必須妥 善處理此類投訴，並讓員工看到僱主處理投訴的結 果及態度。

洲有關性騷擾的法律發展較為

徑，且會令人合理預期被騷擾者有感到被冒

內部政策

遲緩。某些地區(如香港)已立

犯、侮辱或威嚇，或對被騷擾者造成有敵意

撇開不同地方的法律立場來說，許多跨國

法嚴禁性騷擾，其基本法律概

或具威嚇性的環境。女性既可能會作出性騷

集團都選擇自行制定有關處理性騷擾（以

念均與澳洲、美國及英國的法

擾，亦可能會遭到性騷擾。而性騷擾並非只

及歧視及報復行為）的全球性政策，當中

限於男女之間，「同性」之間的性騷擾行

以集團母公司或總部位於設有相關法律的

為亦屬犯法。新加坡及中國內地的法例與

司法管轄區（例如澳洲、美國及英國）的

香港設有《性別歧視條例》禁止性騷擾行

香港不同，在《騷擾防制法》（Protection

跨國集團尤為普遍。這些政策未必都是強

為。該條例適用於所有位於香港的僱主，

from Harassment Act ）或《中華人民共

制措施，但集團員工一般都需要予以遵

只有少數的個別例外情況。僱主如無採取

和 國 婦 女 權 利 保 障 法 》 第 40條 中 對 「 性 騷

守。

「合理可行的措施」以防止僱員作出性騷

擾」或「騷擾」均無明確、統一的法律定

擾行為，則無論僱員有否事先知會僱主或

義。

僱主面臨與性騷擾有關的法律行動 時應如何應對

聘期間作出的行為承擔轉承責任。這可算

有些行為在多個司法管轄區均被公認為性騷

儘管新加坡及中國並無任何具體的法例，

是僱主的一大顧慮，鑑於僱員即使在正常

擾，包括：觸摸、抓弄或故意摩擦他人身

要求僱主制訂相關政策或對僱主作出相

工作時間之外或實際工作場所以外作出性

體、猥褻的姿勢、提議對方在性方面予以合

應的處罰，但僱主也應謹慎地處理有關

騷擾行為，亦往往被視為是在受聘期間作

作或容忍性方面的要求以換取事業發展上的

性騷擾的投訴。僱主除了遵守法定條文

出的行為。舉例而言，倘若僱員在年度晚

好處、在性方面帶有貶抑成分或有成見的言

外，對僱員亦負有責任，僱員須遵守明

宴或其他與工作相關的場合、出差期間或

論、不斷追問他人的感情狀況或性生活、在

確及隱含的合約責任及其他內部政策。

工餘時間作出不當行為，僱主亦可能要負

工作場所談論色情笑話、展示有性別歧視成

如果僱主未能有效處理性騷擾投訴或在

上責任。

分或使人反感的色情圖片或海報等。性騷擾

使僱員在受聘期間遭受性騷擾，則可能

未必是連串發生的事件，一次事件亦足以構

嚴重違反隱含的互信責任，或未能提供

何謂性騷擾 ?

成性騷擾。即使某些事件的每一部分單獨而

必需的工作條件及保護措施。在中國，

以香港為例，《性別歧視條例》將「性騷

言不會構成性騷擾，但若有關事件持續發

這可能會構成推定解僱及引發其他法律

擾」界定為任何不受歡迎並涉及性的行

生，亦可被視為性騷擾。

行動。

亞 律相同。

獲僱主批准，僱主均可能需要為僱員在受

30 HUMAN RESOURCES • June 2018

處理投訴

面臨的潛在風險降至最低。此類措施包括

僱主在相關司法管轄區內應盡量避免在訴

僱主亦須確保投訴得到公正而迅速的處

制訂書面反騷擾政策、定期安排政策培訓

訟中、在有人要求查閱的情況下，或因應

理。內部投訴處理程序有助僱主盡早處理

讓僱員充分了解有關政策、確保設有充足

政府當局要求而出示日後可能須予披露的

投訴，而實際上，此類程序通常能夠有效

的投訴渠道及有效的投訴處理程序、監控

保密特權文件。僱主須予披露的資料可能

減低投訴人循外部途徑尋求補償（例如提

政策成效、採取具體措施以避免在辦公室

包括與僱員的面談記錄，以及原本應予以

出法庭訴訟）的風險。調查人員必須保持

聚會等「高危」場合發生問題，以及對作

保密的管理層電郵及信函。

公正及中立，例如不得與投訴人或被控人

出性騷擾的僱員處以適當的紀律處分，包

有任何關聯，亦不得牽涉於正在調查的事

括將該名僱員即時解僱。

件當中。

與事件相關的電郵、即時訊息及書面文件 等亦可能會成為潛在的文件證據。

人力資源管理專才注意事項 調查人員應強調有關事件的保密性質。另

僱主除了要顧及財務方面的影響，亦不能

香港、新加坡或中國目前均沒有設立保護

一方面，僱主決不能容忍任何人對投訴人

忽視聲譽受損、員工士氣低落、員工流失

舉報人的具體法律。實際上，許多跨國公

或參與調查的任何人士作出報復或恐嚇。

率上升等非財務影響。公司的聲譽十分重

司都會制訂全球性或區域性的舉報人保護

同時應提出開放式的問題，使受訪者能夠

要，而社交媒體近年已成為受害僱員或已

政策。在這類情況下，僱主必須釐清相關

從自己的角度交代事件始末，而調查方式

離職僱員表達不滿的有力工具，因此僱主

個別人士是否受到政策保護。

也不應只限於面談。

更應妥善處理此類事件。

倘若被控僱員遭到停職，僱主在回應與被

在調查過程中，難免要查閱某些個人資

調查的任何人士均不得向任何不直接涉及

控僱員停職有關的問題時，在內部及外部

料（例如電郵、即時訊息、書面文件及

該事件的人士透露或與其討論該個案或相

溝通上應格外謹慎，以免令人妄自假設僱

閉路電視錄影片段等）。香港的《個人

關人員的姓名，包括提出投訴者及涉嫌作

員有所過失，或對僱員有所成見。僱主不

資 料 ( 私 隱 ) 條 例 》 及 新 加 坡 的 《 2012

出性騷擾者的姓名。

妨採取中立之道，對外宣稱該名僱員正在

年 個 人 資 料 保 護 法 》 （ Personal Data

休假，不再披露任何其他消息。

Protection Act 2012 ）規定，資料使用

僱主若要杜絕職場上的性騷擾行為，則應該

者須於收集個人資料當日或之前通知資

對性騷擾採取零容忍的態度，並制定書面反

如何盡量減低潛在風險?

料當事人。一份完善的《個人信息收集

性騷擾政策，要求各級員工遵守。政策中應

僱主可採取所有合理可行的措施以預防或

聲明》通常會訂明個人資料乃用於調查

訂明向投訴處理人員舉報的具體程序，以及

處理工作場所的性騷擾行為，從而將自身

用途。

違規者須承受的相應紀律處分。

保密是調查過程中極為重要的一環。參與

HUMAN RESOURCES • June 2018

31

Case in Brief

Written Employment Agreements Can Mitigate Disputes

By Stephanie Chiu, Senior Associate, Freshfields Bruckhaus Deringer Nicola Jones, Associate, Freshfields Bruckhaus Deringer

Summary In this case, the High Court of Hong Kong examined the nature of the relationship between the parties to determine whether the defendants were employees or independent contractors of the plaintiff in the absence of a written agreement. It also considered the circumstances in which an employer could successfully claim exemplary, punitive damages (in addition to compensatory damages) in relation to loss suffered as a consequence of the fraudulent conduct of its employees.

Promo International Limited v Chae Man Tock and Chow Ting Hei HCA 1337/2010 Hon B Chu J in Court Dates of Hearings: 1 – 4, 7 – 11 August 2017 Date of Judgment: 28 February 2018

Facts The plaintiff, Promo International Limited (Promo ), is a company incorporated in the UK with a business of supplying products (sourced in Hong Kong or Mainland China) to customers in the UK and EU for business promotional purposes.

The defendants, Mr Chae Man Tock (1st defendant) and his wife, Chow Ting Hei (2nd defendant), were recruited by Promo in 2006 and 2007 respectively, as merchandisers.

In May 2010, Promo became aware that the defendants were inflating the prices of suppliers’ invoices and asking suppliers to pay the price difference into their personal bank accounts. In June 2012, the defendants were convicted of fraud and of offences of accepting advantage.

32 HUMAN RESOURCES • June 2018

In the case before the High Court of Hong Kong, Promo sought both exemplary and aggravated damages of an additional 20% of the sum of US$893,142.60, rather than an account for profits against the defendants as its former employees in relation to the loss Promo had suffered as a consequence of the defendants’ fraud.

The Court considered three key issues, which included were the defendants Promo’s employees at all material times, whether the defendants were in breach of their duties owed to Promo as their employer and the extent of damages suffered by Promo arising out of the defendants’ breach of their duties to Promo and on this basis, could Promo claim exemplary damages?

Decisions On the issue of whether or not the defendants were Promo’s employees at all material times, the Court held that both defendants were employed by Promo at all material times. Taking the “modern approach” to the question of employment status, the Court examined all aspects of the relationship between Promo and the defendants, rather than just looking at the employment contract (or lack of it) to determine whether there is an employment relationship. In particular, the Court considered the fact that monthly rent and expenses of the office were paid by Promo, that 1st defendant had to seek Promo’s approval before hiring any staff, that employment contracts were sent to Promo for approval and that 1st defendant had to seek permission from Promo before taking leave. Based on these facts, the Court determined that these arrangements were

1. An employment contract should be put in place and it should be signed by employers and employees.

On the issue of whether or not the A salient point in this particular defendants were in breach of their dispute is the fact that neither party duties owed to Promo as an employer, had particularly compelling evidence the Court held that, as with all contracts to prove whether the relationship of employment in Hong Kong, it was between them was an employment an implied term of the defendants’ relationship or an independent employment that they owed a duty of good contractor relationship. Whilst Promo faith towards Promo. It was obvious that it alleged that a written employment would be in the best interests of Promo to contract was prepared and couriered source goods of acceptable quality at the to 1st defendant, there was no lowest price possible in order to maximise evidence of this and 1st defendant profits. The actions of the defendants claimed that he never received were therefore clearly in breach of the the employment contract. It was implied duty to act in good faith.

Promo’s case that it did not expect 1st defendant to countersign the The court decided that Promo could not employment contract. claim exemplary damages, but awarded compensatory damages of Although having an employment US$ 893,142.60. Promo also sought contract is not conclusive evidence exemplary and aggravated damages of of an employment relationship, it an additional 20%. The Court emphasised is certainly a key step. There is no that the rationale for exemplary damages obligation in Hong Kong for employers was not to compensate but to punish and employees to enter into written and explained that if, but only if, the contracts of employment, unlike in compensatory award was inadequate China. However, oral agreements, to punish the defendants for their which are legally binding in Hong “outrageous” conduct, the court could Kong, can quickly turn into a “he said, award a sum to mark its disapproval she said” dispute, particularly as time and to deter any repeat offending. In this passes and the parties’ recollections case the Court noted that the defendants’ of the agreement may change. Having actions were not the worst of its kind a written agreement goes some and that Promo, as a company, could way towards mitigating any future not suffer direct physical or mental arguments as to what was agreed injury. Therefore, the Court held that in between the parties. this situation, compensatory damages were adequate to punish and deter the It is also important that the defendants for their conduct. employment contract is signed by both parties – otherwise there is no evidence that the other party has Take away points for HR agreed to the terms of the contract. professionals In Hong Kong, it is well established that the courts will adopt a “substance 2. Ensure the arrangements between over form” approach in determining the employers and employees are whether a worker is an employee or consistent with the relationship. an independent contractor. This means If it is determined that a worker should the courts will examine all of the facts be categorised as an employee, it is and the background of the relationship, important to ensure that subsequent rather than just looking at how the parties arrangements are consistent with have chosen to label themselves. In this the employment relationship. This case, the Court emphasised that it was will often be linked to the level of important to adopt a “modern approach” control the employer has over the and examine the all the features of the individual. For example, in this case, relationship between the parties. the fact that, 1st defendant had to indicative of an employment relationship between the parties.

seek Promo’s approval before hiring any staff and to seek permission from Promo before taking leave was held by the Court to be indicative of an employment relationship rather than that of an independent contractor.

Similarly, if the intention is that an individual is an independent contractor, the company should ensure that the arrangements reflect this.

3. The contract should clearly spell out the duties and obligations of the employee, particularly where these are not implied duties.

Implied duties in employment contracts are essentially the obligations and responsibilities on either party which are not explicitly set out in the employment contract but are implied into contract as being necessary to give business efficacy to the contract or they are so obvious that they “go without saying”.

For example, employees owe an implied duty of fidelity and good faith to their employer. They also have the implied duty to obey lawful and reasonable orders from their employer and have to exercise reasonable skill and competence in carrying out their work.

In this case, the Court found that it was an implied term of the defendants’ employment that they owed a duty of good faith towards Promo and that their actions of taking kickbacks and commissions from suppliers had injured their employer. On that basis, Promo was entitled to compensatory damages.

If Promo had been trying to claim damages based on a breach of duty that was not an implied duty, then it would have had trouble doing so in the absence of a written employment contract. As such, where a duty is not a duty that would typically be implied into an employment contract, it is important for an employer to spell this out carefully to ensure that it is clear what the employee’s obligations are; and any future breach can be actionable.

HUMAN RESOURCES • June 2018

33

案例撮要

訂立書面僱傭合約可減少爭議 富而德律師事務所資深律師 趙卓盈 富而德律師事務所律師 Nicola Jones

摘要 香港高等法院在審理本案時，審視訴訟雙方關係的性質，以確 立在沒有書面合約的情況下，被告是原告的僱員還是獨立承包 人；並考慮僱主因僱員的欺詐行為而蒙受損失時，在何種情況 下，僱主除申索補償性損害賠償外，還可索取範例性及懲罰性

Promo International Limited 訴 Chae Man Tock 及 Chow Ting Hei 案件編號：HCA 1337/2010 朱珮瑩法官 聆訊日期：2017年8月1至4日、7至11日 判決日期：2018年2月28日

損害賠償。

案情

於被告是否違反其對僱主Promo所負的責

書面僱傭合約，雖然口頭協議同樣具備法律

原告Promo International Limited

任方面，法院認為，如同香港所有僱傭合約

約束力；但口頭協議爭議性較大，尤其是時

（Promo）是在英國註冊成立的公司，業務

一樣，被告受僱有一默示條款，即被告對

日既久，雙方對口頭協議的記憶或有變化。

涉及在香港或中國內地採購產品，以供應英

Promo負有誠信責任。以最低的價格購買品

訂立書面協議有助減少日後對雙方協議內容

國及歐盟客戶作商業推廣用途。

質可接受的貨品去賺取最大利潤，明顯地符

的爭議。

合Promo的最佳利益；因此被告的行為顯然 被告 Chae Man Tock 先生（首被告）及其 妻 Chow Ting Hei（次被告）分別於 2006 及 2007 年獲 Promo 聘請為採購員。

違反其以誠行事的默示責任。 法院裁定 Promo 不可索取範例性損害賠償， 但可獲得 893,142.60 美元的補償性損害賠

2010年5月，Promo發現被告誇大供應商發

償。Promo 亦尋求額外20% 的範例性及懲戒

票上的價格，並要求供應商把差額存入其個

性損害賠償。法院強調，範例性損害賠償的

人銀行賬戶。2012年6月，被告欺詐及收受

精神，並非賠償而是懲罰；並說明只有在補

利益罪名成立。

償性損害賠償不足以因應被告行為的嚴重程 度懲罰被告時，法院才可判罰款項，以示不

在香港高等法院審理的這宗案件中，Promo

贊同，並起阻嚇作用，以防被告再犯。法院

就其因被告欺詐而蒙受的損失，額外申索

認為本案被告的行為並非最惡劣，而 Promo

893,142.60美元的 20%，作為範例性及懲戒

是公司，不會受到直接人身損害或精神損

性損害賠償，而非要求被告作為前僱員償還

害，因此裁定在此情況下，補償性損害賠償

所得利潤。

足以懲罰被告，並起阻嚇作用。

僱傭合約由雙方簽署也十分重要，否則便無 法證明另一方已同意合約條文。

2. 確保僱主僱員之間的安排與雙方的關係一致。 若已確定某人屬於僱員，則必須確保其後的 安排與僱傭關係一致。這通常涉及僱主對僱 員的監管程度。例如在本案中，首被告聘請 任何僱員前均須經 Promo 核准，休假前須由 Promo 批核，法院即認為這些均顯示雙方屬 僱傭關係，而非獨立承包人的關係。 同樣，假如公司原意是委任獨立承包人，便 應確保有關安排能反映這種關係。

3. 合約應清楚註明僱員的職責及責任，尤其說 明這些並非默示責任。 僱傭合約的默示責任，基本上是僱傭合約內

法院考慮三項因素：被告在有關期間是否

人力資源管理專才注意事項

Promo的僱員、被告是否違反其對僱主

香港法院在確立某人是僱員還是獨立承包人

Promo 所負的責任，以及Promo 因被告失職

時，一向考慮實質情況，而非外在形式。法

而蒙受多大程度的損失；而基於上述因素，

院會審視雙方關係的所有事實和背景，而非

Promo 可否索取範例性損害賠償 ?

只考慮雙方如何稱呼自己。在審理本案時，

例如僱員對僱主負有忠誠和誠信的默示責

法院強調必須採用 “Modern Approach” 的處

任，亦有默示責任遵從僱主的合法和合理指

理方法去審視雙方關係的所有特徵。

示，並以合理的技能和能力執行工作。

裁決 被告在有關期間是否 Promo 的僱員方面，法 院認為兩名被告在有關期間均為 Promo 的僱 員。就僱傭關係的分析，法院採用 “Modern Approach” 審視 Promo 與被告關係的各方 面，而不是僅僅透過僱傭合約（或缺乏僱傭合 約的情況下）來判斷雙方的僱傭關係是否存 在。法院特別考慮到辦公室的每月租金和開支 均由 Promo支付，首被告聘請任何僱員前均 須經 Promo核准，僱傭合約均交予Promo 批

1. 應訂立僱傭合約，並由僱主及僱員簽署。

並無清楚列明，而是在合約中默示的任何一 方的責任和職責，作用是使合約具備商業效 率，又或責任十分明確，不必明言。

法院審理本案時，認為被告受僱有一默示條

本案的一個重點，是各方均沒有確鑿證據

款，即被告對 Promo 負有誠信責任；被告向

証明彼此是僱傭關係還是獨立承包人的關

供應商收取佣金的行為已損害了僱主的利益。

係。Promo 聲稱曾準備書面僱傭合約，

因此，Promo 有權獲得補償性損害賠償。

並以快遞方式送交首被告，但沒有相關證 據，而首被告亦聲稱從沒收到該僱傭合 約。Promo 表示沒有期望首被告簽署確認 該僱傭合約。

假如Promo以被告違反責任為由申索損害 賠償，而有關責任又並非默示責任，則在缺 乏書面僱傭合約的情況下，便很難成功索 償。因此，若某項責任一般而言並非僱傭合

核，而且首被告休假前須經 Promo批准。基

雖然僱傭合約並非僱傭關係的決定性證

約的默示責任，僱主便應緊記在合約中小心

於這些事實，法院斷定這些安排顯示雙方屬

據，但肯定是重要的一環。跟中國內地情

清楚說明，確保僱員的責任清晰明確，若僱

僱傭關係。

況不一樣，香港僱主和僱員沒有責任訂立

員日後違反該責任，僱主可予起訴。

34 HUMAN RESOURCES • June 2018

Reading Corner

The Culture Code: The Secrets of Highly Successful Groups Author: Daniel Coyle Publisher: Random House Business Books

W

here does great culture come from? How do you build and sustain it in your group, or strengthen a culture that needs fixing? What do Pixar, Google, the San Antonio Spurs basketball team and US Navy’s SEAL Team Six have in common?

The answer is that they all owe their extraordinary success to their teambuilding skills. In The Culture Code , author Daniel Coyle goes inside some of the most effective organisations in the world and reveals their secrets not only what makes such groups tick, but the key factors that can generate team cohesion in any walk of life.

The book examines the verbal and physical cues that bring people together and determines specific strategies that encourage collaboration and build trust. Also provided are cautionary tales of toxic cultures are offered and advise on how to reform them, above all demonstrating the extraordinary achievements that result when we know how to cooperate effectively. By identifying three key skills that generate

cohesion and cooperation, the culturebuilding process is demystified and the process of how diverse groups learn to function with a single mind is explained.

Drawing on examples that range from Internet retailer Zappos to the comedy troupe Upright Citizens Brigade to a daring gang of jewel thieves, Coyle offers specific strategies that trigger learning, spark collaboration, build trust, and drive positive change. The book has also unearthed helpful stories of failure that illustrate what not to do, troubleshoots common pitfalls, and shares advice about reforming a toxic culture.

Combining leading-edge science, onthe-ground insights from world-class leaders, and practical ideas for action, The Culture Code offers a roadmap for creating an environment where innovation flourishes, problems get solved, and expectations are exceeded.

No matter the size of the group or the goal, this book can teach you the principles of cultural chemistry that transform individuals into teams that can accomplish amazing things together.

Five insights: • Within a group, individual skills are not what is most important. What matters most is the interaction between group members.

• Culture is comprised of belonging and feeling safe, shared risk, and shared goals and values. It is not something that you are, it is something that you do.

• Actively inviting input – asking group members for help – rather than hiding any need for assistance, creates an opportunity to build deeper connections.

• Say “thank you” a lot. It ignites cooperative behaviour.

• Showing vulnerability builds trust, and creates a feedback loop of reciprocal expression of vulnerability and further building of trust and deeper cooperation.

HIGHLY RECOMMENDED:

Smart Teams: How to Work Better Together Author: Dermot Crowley Publisher: John Wiley and Sons

Build It: The Rebel Playbook for WorldClass Employee Engagement Author: Glenn Elliott & Debra Corey Publisher: John Wiley and Sons

Principles: Life and Work Author: Ray Dalio Publisher: Simon and Schuster

Book review and recommendations provided by Swindon Book Co. Ltd. Address: 13–15 Lock Road, Tsimshatsui, Kowloon.

Tel: 2366 8001 Email: enquiry@swindonbooks.com

HUMAN RESOURCES • June 2018

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HKIHRM News

Cream of the Crop to Receive HKIHRM Student Scholarship

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series of selection interviews for the 2018 HKIHRM Student Scholarship took place on 2 May, with the president, Mr David Li as the panel chair joined by council members, Mr SH Chak, Ms Virginia Choi and Mr Peter Leung.

The scholarship aims to recognise the outstanding academic achievements of local university students studying full-time HR management programmes who aspire to serve and contribute to the profession as an HR practitioner. The candidates also have to demonstrate strong leadership and a personal drive to succeed.

Five students will be selected to receive a scholarship of HK$5,000 each. The awardees will be announced at the presentation ceremony to be held concurrently on 9 July 2018 at the Institute’s Annual General Meeting.

An interview session in process.

Seminar to Unlock Talent Potential in the Future Workplace

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David Li (fourth from left), HKIHRM president, presents souvenirs to speakers.

n 20 April, 13 speakers gathered and shared their practical experiences on how to embrace the new world of talent management at 2018 The Future Workplace Seminar x Unlock Talent Potential Practical Workshop organised by the HKIHRM. The topics covered were comprehensive, including AI, big data analytics, gamification, AR, VR, design thinking and HR strategies used to drive innovation and help build an agile workforce for organisations. In the session of future hiring strategies, the participants learned from the speakers’ sharing of their human capital development strategies - engaging people with disabilities, retired athletes, women in need, and resorting to new talent matching measures among others.

Upcoming Seminars and Workshops Certificate in Foundation Skills in Human Resource Management (2018) Date: 12 June – 16 August 2018 Time: S1: 7:00pm – 9:00pm (Tuesday);

S2: 7:00pm – 10:00pm (Thursday)

GRP 2018 – GR9: Strategic Communication in Total Rewards Date: 11-12 July 2018 (Wednesday & Thursday) Time: 9:30am – 5:30pm Speakers share how the HR function can use high technology to deliver business success.

Certificate in Learning Management Date: 28 July – 1 September 2018 (Saturday) Time: 2:00pm – 6:00pm

For more upcoming programmes, please visit http://goo.gl/KHlElh

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MARK MARK YOUR YOURCALENDAR CALENDAR June 2018

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N Design Gamification 2.0 for MO Training & Development

5 D WE

入境簽證 II：訓練簽證與 撰寫公司信的注意事項

• Principles & Challenges of Salary & Benefits System Design

Thinkertoys®: Business Innovation and Creativity Workshop

• Resolving Government Tax Audit and Investigation on Individual Tax

8 RI F

Promoting Culturally Inclusive Workplace

MO

20 D WE

22RI F

專業甄選面試技巧工作坊 – 概覽當代具權威的專業面試模式

9 11 N

TH

• 人力資源管理新趨勢

E TU

6

14 U

• General Data Protection Regulation (GDPR): I mplications for HR in Asian Companies

SAT

23 T

Certificate in Employee Coaching, Counselling and Mentoring (2018) 賽馬會「生命 • 歴情」 體驗活動

• Accelerated Talent Management

Ways to Reshape Operating HR into Business Partners

SA

25 N MO

Workshop

• Certificate in Workforce Planning

and Talent Management (2018)

12 E TU

• Certificate in Foundation Skills in Human Resource Management (2018) • GRP 2018 – GR7: International Remuneration: An Overview of Global Rewards

Presenting Your Messages with Confidence, Purpose and Impact

27 D WE

• 「粒粒皆辛館」體驗之旅 • 處理僱員離職時限制條款應用 及常見的違約行為實務講座

29RI F

For more programme details, please visit https://goo.gl/QpZz8g

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