Employees' Compensation | 僱員補償
1. 我在工作期間外出送件時受傷,僱主需否負上賠償責任?I was injured while delivering documents as part of my job, is the employer liable to pay damages?
根據《僱員補償條例》第5(4)條,若然僱員在下列情況受傷,該僱員將被視為因工及在僱用期間遭遇意外而受傷,而僱主亦需負上賠償責任:
Pursuant to section 5(4) of the Employees’ Compensation Ordinance, if an employee sustains an injury in the following circumstances, then that employee is deemed to have been injured in an accident arising out of and in the course of employment, and the employer is liable to pay compensation:
- 僱員以乘客的身分乘搭其僱主操控或安排的交通工具,往返工作地方(如該僱員為公共交通工具之乘客則例外);
- 僱員因工作關係,駕駛或操作由僱主安排或提供的交通工具,由直接路線在往返其居所及工作地點途中;
- 在八號或以上颱風訊號或紅色 / 黑色暴雨警告生效期間,僱員在該日的工作時間開始前四小時內,以直接路線由其居所前往其工作地點途中,或在該日的工作時間終止後四小時內,由其工作地點前往其居所途中;或
- 僱員在僱主許可下,為了其受僱從事的工作,並在與此工作有關的情況下,以乘客身分乘搭任何交通工具,在往返香港與香港以外地方途中,或往返任何香港以外地方與任何其他地方途中。
Pursuant to section 5(4) of the Employees’ Compensation Ordinance, if an employee sustains an injury in the following circumstances, then that employee is deemed to have been injured in an accident arising out of and in the course of employment, and the employer is liable to pay compensation:
- while travelling as a passenger to or from the employee's place of work by means of transport that is operated or arranged by the employer (except as part of a public transport service);
- while travelling by a direct route between the employee's residence and the place of work for the purpose of and in connection with employment by driving or operating a means of transport arranged or provided by the employer;
- when typhoon signal No. 8 or above or a red/black rainstorm warning is in force, while travelling from the employee's place of residence to the place of work by a direct route within four hours before the commencement of working hours for that day, or from the place of work to the place of residence within four hours after the time of cessation of the working hours for that day; or
- while travelling, for the purpose of and in connection with the employee's employment by any means of transport permitted by the employer, between Hong Kong and any place outside of Hong Kong or between any places outside of Hong Kong.
2. 我是一名建築工人,工作受傷時忘記了戴安全帽,我會否失去索償的機會?I am a construction worker. I forgot to wear my helmet while at work and I got injured, will I lose the chance of being compensated?
根據《僱員補償條例》第5(4)(b)條,只要僱員是為了僱主的行業或業務之目的並在與該行業或業務有關下作出該作為,即使在意外發生時該僱員作出的作為是違反適用於其工作的任何法定規例或其他規例的,或是違反僱主或僱主代表所發出的命令,或其作為是在沒有僱主的指示下作出,該僱員所遭遇的意外,亦須當作是僱員在受僱工作期間因工遭遇的意外。忘記了戴安全帽雖然可能違反工作的法定規例,但你不會因而失去索償的機會。
Pursuant to section 5(4)(b) of the Employees’ Compensation Ordinance, even if, at the time when the accident happened, the employee was acting in contravention of any statutory or other regulation applicable to his employment, or of any orders given by or behalf of his employer, or that he was acting without instructions from his employer, an accident to an employee shall be deemed to arise out of and in the course of employment if such act was done by the employee for the purposes of and in connection with his employer’s trade or business. Therefore, notwithstanding that forgetting to wear your helmet may be in contravention of the statutory requirement applicable to your employment, you will not lose the chance of being compensated.
Pursuant to section 5(4)(b) of the Employees’ Compensation Ordinance, even if, at the time when the accident happened, the employee was acting in contravention of any statutory or other regulation applicable to his employment, or of any orders given by or behalf of his employer, or that he was acting without instructions from his employer, an accident to an employee shall be deemed to arise out of and in the course of employment if such act was done by the employee for the purposes of and in connection with his employer’s trade or business. Therefore, notwithstanding that forgetting to wear your helmet may be in contravention of the statutory requirement applicable to your employment, you will not lose the chance of being compensated.
3. 我的丈夫在工作時因意外而死亡,我可獲哪些賠償? My husband died of an accident that happened while he was at work. What compensation can be claimed by me?
若然一名僱員因工及在僱用期間遭遇意外而死亡,僱主須就其僱員之死亡而向其家庭成員負上賠償的責任。根據《僱員補償條例》第6條,死亡個案賠償的計算方法是以已故僱員的年齡及生前月入為參考。
*就計算死亡個案的賠償額時,月入之最高金額為HK$26,070。賠償之金額將由已故僱員的家庭成員自行分配。此外,僱主亦有責任向已支付殮葬費及醫療費之人士補貼該等費用,最高金額為$76,200。
If an employee dies as a result of an accident arising out of and in the course of employment, then the employer is liable to pay compensation for death to the surviving members of the family. Pursuant to section 6 of the Employees’ Compensation Ordinance, compensation for death is calculated with reference to the age and monthly earnings of the deceased employee as follows.
*Monthly earnings are subject to a maximum of $26,070 for calculating compensation in fatal cases.The compensation shall be apportioned among the eligible members of the family of the deceased employee. In addition, the employer is liable to reimburse funeral and medical attendance expenses to the person who has paid such expenses, up to a maximum of $76,200.
- 40歲以下 : 84個月的收入* 或HK$375,950,以較高者為準
- 40歲至56歲 : 60 個月的收入* 或 HK$375,950,以較高者為準
- 56歲或以上 : 36 個月的收入* 或HK$375,950,以較高者為準
*就計算死亡個案的賠償額時,月入之最高金額為HK$26,070。賠償之金額將由已故僱員的家庭成員自行分配。此外,僱主亦有責任向已支付殮葬費及醫療費之人士補貼該等費用,最高金額為$76,200。
If an employee dies as a result of an accident arising out of and in the course of employment, then the employer is liable to pay compensation for death to the surviving members of the family. Pursuant to section 6 of the Employees’ Compensation Ordinance, compensation for death is calculated with reference to the age and monthly earnings of the deceased employee as follows.
- Under 40 : 84 months' earnings* or $375,950, whichever is higher
- 40 to under 56 : 60 months' earnings* or $375,950, whichever is higher
- 56 or above : 36 months' earnings* or $375,950, whichever is higher
*Monthly earnings are subject to a maximum of $26,070 for calculating compensation in fatal cases.The compensation shall be apportioned among the eligible members of the family of the deceased employee. In addition, the employer is liable to reimburse funeral and medical attendance expenses to the person who has paid such expenses, up to a maximum of $76,200.
4. 我在工作時因遇到意外而需要截肢,我或我的家人可獲哪些賠償?I was injured and needed an amputation due to an accident that happened during my work. What compensation can be claimed by me or my family members?
截肢而導致的傷殘屬於永久性。就「永久喪失工作能力」而言,可分為「永久完全喪失工作能力」和「永久部分喪失工作能力」。
根據《僱員補償條例》第7條,前者的賠償計算方法如下:
- 40歲以下: 96個月的收入* 或HK$426,880,以較高者為準
- 40歲至56歲以下: 72個月的收入* 或HK$426,880 ,以較高者為準
- 56歲或以上: 48個月的收入* 或HK$426,880 ,以較高者為準
* 在計算永久喪失工作能力之死亡個案賠償額時,月入之最高金額為HK$26,070。
根據《僱員補償條例》第9條,後者的的賠償計算方法則為(永久完全喪失工作能力的賠償金額)x(喪失賺取收入能力的百分率)。僱員喪失賺取收入能力的程度,是由僱員補償評估委員會根據條例而評定。因此,單憑截肢無法確定賠償的金額,會隨著從事工作的性質而有不同的判斷。
Amputation belongs to permanent incapacity. Permanent incapacity is divided into permanent total incapacity and permanent partial incapacity.
Pursuant to section 7 of the Employees Compensation Ordinance, compensation in cases of permanent total incapacity is as follows:
- Under 40: 96 months' earnings* or $426,880, whichever is higher
- 40 to under 56: 72 months' earnings* or $426,880, whichever is higher
- 56 or above: 48 months' earnings* or $426,880, whichever is higher
*Monthly earnings are subject to a maximum of $26,070 for calculating compensation for permanent incapacity.
For permanent partial incapacity, the amount of compensation is as follows (section 9 of the Employees' Compensation Ordinance):(Amount of compensation due to permanent total incapacity) X (Percentage of loss of earning capacity). The percentage of loss of earning capacity is assessed by the Employees’ Compensation Assessment Board according to the Employees’ Compensation Ordinance. Therefore, it is hard to ascertain the amount of compensation purely on the basis of amputation as it varies according to the nature of the employment.
5. 工傷令我需要休養數月而無法工作,但慶幸現在已經完全康復,我可否獲得賠償?Due to an injury I was forced to take a rest and could not work, but fortunately I am fully recovered now, can I get the compensation?
僱員可就「暫時喪失工作能力」的情況索取補償。「暫時」一般指有關時期不超過24個月。僱員亦可向法庭申請,將期限最多延長12個月。
針對暫時喪失工作能力的情況,僱員可獲按期付款。根據《僱員補償條例》第10條,計算方法是(在意外發生時僱員的月入 ─ 在意外發生後僱員的月入)x 4/5。
當僱員的暫時喪失工作能力時期超過24個月,或超過延長期限,該僱員將會被視為蒙受「永久喪失工作能力」,有關賠償將以問題4所述的方式評估。
With regard to temporary incapacity, an employee is entitled to receive periodical payments. “Temporary” generally refers to the period up to 24 months. However, an employee can apply to the Court for extending the period for 12 months. Pursuant to section 10 of the Employees’ Compensation Ordinance, the periodical payments should be calculated as follows: (Monthly earnings at the time of the accident - monthly earnings after the accident) X 4/5.
When the employee’s temporary incapacity lasts more than 24 months or even more than a further period of 12 months, the employee will no longer be entitled to periodical payments, and will be regarded as having suffered permanent (total or partial) incapacity with compensation assessed accordingly. The compensation will be assessed as mentioned in Q4.
針對暫時喪失工作能力的情況,僱員可獲按期付款。根據《僱員補償條例》第10條,計算方法是(在意外發生時僱員的月入 ─ 在意外發生後僱員的月入)x 4/5。
當僱員的暫時喪失工作能力時期超過24個月,或超過延長期限,該僱員將會被視為蒙受「永久喪失工作能力」,有關賠償將以問題4所述的方式評估。
With regard to temporary incapacity, an employee is entitled to receive periodical payments. “Temporary” generally refers to the period up to 24 months. However, an employee can apply to the Court for extending the period for 12 months. Pursuant to section 10 of the Employees’ Compensation Ordinance, the periodical payments should be calculated as follows: (Monthly earnings at the time of the accident - monthly earnings after the accident) X 4/5.
When the employee’s temporary incapacity lasts more than 24 months or even more than a further period of 12 months, the employee will no longer be entitled to periodical payments, and will be regarded as having suffered permanent (total or partial) incapacity with compensation assessed accordingly. The compensation will be assessed as mentioned in Q4.
6. 僱主有沒有責任向勞工處報告工傷?Does the employer have the duty to report the work injury to the Labour Department?
有關工傷意外死亡個案,僱主必須在意外發生後的7天內向勞工處報告。就引致死亡的職業病,僱主必須在死者去世後的7天內向勞工處報告。
就非致命的工傷意外個案,僱主必須在意外發生後的14天內向勞工處報告。若僱主並非在上述期限內獲悉有關事件,則須於知悉死亡事件後7天內,或知悉非致命的工傷事件後14天內,向勞工處呈報。
不論有關意外會否引致任何賠償責任,僱主必須向勞工處報告。若僱主不依法例規定向勞工處呈報工傷事件,最高可被判罰款港幣50,000元。
如僱員發現其僱主沒有將工作意外事件向勞工處報告,可聯絡勞工處(電話: 27171771)的僱員補償科並填妥一份工傷意外通知書,以便勞工處跟進有關個案。
For fatal work-related accidents, employers are required to report to the Labour Department within seven days after the accident. For occupational diseases that result in fatality, employers are required to report within seven days after the date of death.
For non-fatal work-related accidents, employers are required to report to the Labour Department within 14 days after the accident. If employers are not aware of the accidents that happened within the specified period, they must notify the Labour Department on the appropriate form within seven days for fatal cases and 14 days for non-fatal cases, after the accidents have come to their attention.
Any work-related accident must be reported by the employer irrespective of whether the accident gives rise to any liability to pay compensation. Employers who fail to report to the Labour Department are liable to prosecution and, on conviction, a fine of $50,000.
If an employee knows that his employer has not reported the work-related accident to Labour Department, he can approach the Employees’ Compensation Division of the Labour Department (Tel. hotline: 27171771) to complete a Notification of Accident. The Labour Department will then follow up on the case.
就非致命的工傷意外個案,僱主必須在意外發生後的14天內向勞工處報告。若僱主並非在上述期限內獲悉有關事件,則須於知悉死亡事件後7天內,或知悉非致命的工傷事件後14天內,向勞工處呈報。
不論有關意外會否引致任何賠償責任,僱主必須向勞工處報告。若僱主不依法例規定向勞工處呈報工傷事件,最高可被判罰款港幣50,000元。
如僱員發現其僱主沒有將工作意外事件向勞工處報告,可聯絡勞工處(電話: 27171771)的僱員補償科並填妥一份工傷意外通知書,以便勞工處跟進有關個案。
For fatal work-related accidents, employers are required to report to the Labour Department within seven days after the accident. For occupational diseases that result in fatality, employers are required to report within seven days after the date of death.
For non-fatal work-related accidents, employers are required to report to the Labour Department within 14 days after the accident. If employers are not aware of the accidents that happened within the specified period, they must notify the Labour Department on the appropriate form within seven days for fatal cases and 14 days for non-fatal cases, after the accidents have come to their attention.
Any work-related accident must be reported by the employer irrespective of whether the accident gives rise to any liability to pay compensation. Employers who fail to report to the Labour Department are liable to prosecution and, on conviction, a fine of $50,000.
If an employee knows that his employer has not reported the work-related accident to Labour Department, he can approach the Employees’ Compensation Division of the Labour Department (Tel. hotline: 27171771) to complete a Notification of Accident. The Labour Department will then follow up on the case.
7. 我在一年多前因工受傷,但沒有向僱主追討賠償,現在還可以追討嗎?I was injured during work more than one year ago, but I did not ask the employer for compensation. Can I claim it now?
根據《僱員補償條例》第14(1)條,凡有關僱員補償的申請,必須在導致僱員受傷的意外發生日期起計24個月內向法院提交。故在此情況,僱員現在仍可以追討賠償。
Pursuant to section 14(1) of the Employees Compensation Ordinance, an application to the Court for employees' compensation must be made within 24 months from the date of the accident that causes the injury. Therefore, you can still file a claim now.
Pursuant to section 14(1) of the Employees Compensation Ordinance, an application to the Court for employees' compensation must be made within 24 months from the date of the accident that causes the injury. Therefore, you can still file a claim now.
8. 我已到勞工處判傷,但不滿意結果,我可以上訴嗎?I have been arranged a medical assessment by the Labour Department, but the result is not satisfactory to me, can I appeal?
所謂「判傷」,意指勞工處的「僱員補償評估委員會」根據僱員的醫療報告評估,以評定僱員永久喪失賺取收入能力的程度。完成評估後,僱主及僱員均會收到「評估證明書」,列明評估結果。若任何一方不滿評估結果,均可在證明書發出後14天內向勞工處提出反對,並可進行一次覆判機會。若對覆判結果仍不滿意,可以在「覆檢評估證明書」發出的6個月內向區域法院提出上訴。
另外,根據《僱員補償條例》第26條,僱員亦可根據普通法向僱主提出民事索償。僱主在普通法下負有謹慎責任,須合理地照顧僱員的安全,例如提供安全的工作環境、儀器與工具,適當的指示及監管措施等等。疏忽索償必須在意外發生後三年內提出。提出訴訟前,僱員應尋求法律意見。
The Employees’ Compensation Assessment Board of the Labour Department will make a ‘medical assessment’ on the degree of permanent total incapacity of the employee, based on the medical report of that employee. After the assessment, both the employer and the employee will receive the Certificate of Assessment, stating the assessment result. If either of the party is not satisfied with the assessment result, he/she can lodge an objection to the Labour Department within 14 days after the Certificate of Assessment is issued, and has an opportunity for appeal. If he/she is still not satisfied with the result of the appeal, he/she can lodge an appeal to the District Court within 6 months after the issuance of the Certificate of Review of Assessment
In addition, pursuant to section 26 of the Employees’ Compensation Ordinance, employees can start a civil claim against their employer under the common law for damages (compensation). Employers bear a duty of care under common law and they are duty-bound to take reasonable care for their employees' safety. For example, they should provide a safe place of work, system of work and equipment, and proper instructions and supervision, etc. The claim of negligence must be made within 3 years after the accident. Before commencement of any proceedings, the employee should seek legal advice.
另外,根據《僱員補償條例》第26條,僱員亦可根據普通法向僱主提出民事索償。僱主在普通法下負有謹慎責任,須合理地照顧僱員的安全,例如提供安全的工作環境、儀器與工具,適當的指示及監管措施等等。疏忽索償必須在意外發生後三年內提出。提出訴訟前,僱員應尋求法律意見。
The Employees’ Compensation Assessment Board of the Labour Department will make a ‘medical assessment’ on the degree of permanent total incapacity of the employee, based on the medical report of that employee. After the assessment, both the employer and the employee will receive the Certificate of Assessment, stating the assessment result. If either of the party is not satisfied with the assessment result, he/she can lodge an objection to the Labour Department within 14 days after the Certificate of Assessment is issued, and has an opportunity for appeal. If he/she is still not satisfied with the result of the appeal, he/she can lodge an appeal to the District Court within 6 months after the issuance of the Certificate of Review of Assessment
In addition, pursuant to section 26 of the Employees’ Compensation Ordinance, employees can start a civil claim against their employer under the common law for damages (compensation). Employers bear a duty of care under common law and they are duty-bound to take reasonable care for their employees' safety. For example, they should provide a safe place of work, system of work and equipment, and proper instructions and supervision, etc. The claim of negligence must be made within 3 years after the accident. Before commencement of any proceedings, the employee should seek legal advice.
9. 我應否尋求律師協助我申請補償?Should I seek assistance from a lawyer to help me to apply for compensation?
現行法例列明由勞工處僱員補償科擔任補償的協調及處理工作,在僱主、僱員、勞工處及勞保公司四方同意下,由勞工處進行判傷和評定賠償額。勞工處亦可為被拖欠工傷付款的工友追討僱主。
然而,工傷賠償中或會出現爭議,如(1)僱主不承認工傷、(2)雙方就「傷勢範圍」、「工資計算」及「判傷結果」等的看法不一致、(3)勞工處兩次判傷後,僱員仍未滿意判傷結果〈詳情閱Q8〉、(4)僱主無理拖欠工傷錢或公司倒閉等等。這時,僱員可考慮向法庭提出申索,並應找律師的協助。
The statute stipulates that the Offices of Employees' Compensation Division are responsible for the coordination and handling of the claim of compensation. With the consent of the employer, employee, Labour Department and the insurance company, the Labour Department can carry out medical assessments and assess the amount of compensation. Moreover, the Labour Department can lodge a claim against the employer on behalf of the injured employee.
However, there may be disputes over the compensation. For example, (1) employer disputes the injury, (2) both parties have different views on the range of injury, calculation of wages, the medical assessment result and (3) the employee is not satisfied with the medical assessment result after two medical assessments by the Labour Department (for details, please refer to Q8), (4) the employer unreasonably delays the payment of compensation for work injury or closure of the company, etc. Then, the employee can consider to file a claim to the Court, and seek lawyer’s assistance.
然而,工傷賠償中或會出現爭議,如(1)僱主不承認工傷、(2)雙方就「傷勢範圍」、「工資計算」及「判傷結果」等的看法不一致、(3)勞工處兩次判傷後,僱員仍未滿意判傷結果〈詳情閱Q8〉、(4)僱主無理拖欠工傷錢或公司倒閉等等。這時,僱員可考慮向法庭提出申索,並應找律師的協助。
The statute stipulates that the Offices of Employees' Compensation Division are responsible for the coordination and handling of the claim of compensation. With the consent of the employer, employee, Labour Department and the insurance company, the Labour Department can carry out medical assessments and assess the amount of compensation. Moreover, the Labour Department can lodge a claim against the employer on behalf of the injured employee.
However, there may be disputes over the compensation. For example, (1) employer disputes the injury, (2) both parties have different views on the range of injury, calculation of wages, the medical assessment result and (3) the employee is not satisfied with the medical assessment result after two medical assessments by the Labour Department (for details, please refer to Q8), (4) the employer unreasonably delays the payment of compensation for work injury or closure of the company, etc. Then, the employee can consider to file a claim to the Court, and seek lawyer’s assistance.
10. 我可否申請法律援助?Can I apply for legal aid?
可以,只要你符合獲取法律援助的資格,你必須通過經濟審查及案情審查。經濟審查乃指你的可動用資產不得超過法定限額,目前的限額為港幣290,380元(2016年)。案情審查則指你須具備合理理據來提出訴訟或抗辯。
詳情可瀏覽勞工處工傷補償服務網站,以及法律援助署網站www.lad.gov.hk/。
Yes. To be eligible to apply for legal aid, you must pass the means test and merits test.Means testrefers to the fact that the financial resources do not exceed the financial eligibility limit of HK$290,380 (for 2016). Merits test means you should have reasonable grounds for taking or defending proceedings.
For details, please refer to the Work Injury Compensation Service webpage, and the Department of Legal Aid webpage www.lad.gov.hk/.
詳情可瀏覽勞工處工傷補償服務網站,以及法律援助署網站www.lad.gov.hk/。
Yes. To be eligible to apply for legal aid, you must pass the means test and merits test.Means testrefers to the fact that the financial resources do not exceed the financial eligibility limit of HK$290,380 (for 2016). Merits test means you should have reasonable grounds for taking or defending proceedings.
For details, please refer to the Work Injury Compensation Service webpage, and the Department of Legal Aid webpage www.lad.gov.hk/.
11. 貴行有律師處理僱員賠償案件嗎? Does your firm handle personal injury cases?
本行吳建華律師,黃吳潔華律師及孫文軒律師都有豐富處理僱員賠償的經驗,詳情可致電852-2545 8181與本行職員聯絡。
Our solicitors, Mr. Kevin Ng, Mrs. Cecilia Wong and Mr. Jacky Suen are experienced in handling employment compensation cases. For queries, please contact us at 852-2545 8181.
Our solicitors, Mr. Kevin Ng, Mrs. Cecilia Wong and Mr. Jacky Suen are experienced in handling employment compensation cases. For queries, please contact us at 852-2545 8181.