Productivity Assessment for Employees with Disabilities under the Statutory Minimum Wage Regime

The Minimum Wage Ordinance has come into effect since 1 May 2011. Statutory Minimum Wage (SMW) applies to all employees, including both able-bodied employees and employees with disabilities. Therefore, employees with disabilities are also entitled to wages at not lower than the SMW rate. Taking account of the possible employment difficulties encountered by some employees with disabilities, a special arrangement is also provided under the Minimum Wage Ordinance so that employees with disabilities whose productivity may be impaired by their disabilities can opt for a productivity assessment by approved assessors at their choice to determine whether they should be remunerated at not lower than the SMW rate or at a rate commensurate with their productivity.

According to the Minimum Wage Ordinance, the right to invoke productivity assessment is solely vested in the employees with disabilities, not their employers. For employees with disabilities who do not opt to undergo productivity assessment, their employers must pay them at not lower than the SMW rate.

Flow chart of the productivity assessment for employees with disabilities

1	The employee with disabilities must hold a valid “Registration Card for People with Disabilities” issued by the Central Registry for Rehabilitation of the Labour and Welfare Bureau when invoking the assessment.
2	The employee with disabilities may, before commencing employment, agree with the employer to arrange a trial period of employment of not more than 4 weeks to adapt and settle into the work before undergoing assessment. According to the Minimum Wage Ordinance, the wage level during the trial period of employment as agreed between the employee with disabilities and the employer should not be lower than 50% of the SMW rate.
3	The employee with disabilities contacts the approved assessor to be selected from the "Register of Approved Assessors" of the Labour Department to conduct the assessment.
4	The approved assessor conducts the assessment in the actual workplace and work settings of the employee with disabilities, collects detailed information on the work and selects appropriate factors to be considered and suitable methods of assessment.
5	The approved assessor explains the assessment result and issues the "Certificate of Assessment on the Degree of Productivity of Persons with Disabilities" to the employee with disabilities and the employer. The fee of the productivity assessment is borne by the Labour Department.

1. Registration Card for People with Disabilities

• Employees with disabilities must hold a valid "Registration Card for People with Disabilities" issued by the Central Registry for Rehabilitation of the Labour and Welfare Bureau in order to exercise the right to opt for the productivity assessment.

• Application form for the "Registration Card for People with Disabilities" can be obtained from the Central Registry for Rehabilitation of the Labour and Welfare Bureau, non-governmental rehabilitation organisations or District Offices of the Home Affairs Department. It can also be downloaded from the Labour and Welfare Bureau’s homepage (www.lwb.gov.hk). No fee is charged for new issue and renewal of the "Registration Card for People with Disabilities".

• For enquiries on matters relating to the application of the "Registration Card for People with Disabilities", please call the Central Registry for Rehabilitation of the Labour and Welfare Bureau at 2180 9384.

2. Trial period of employment

• Newly employed employees with disabilities may, before commencing employment, agree with their employers to undergo a trial period of employment ^{Note 1}. The purpose of the trial period of employment is to allow employees with disabilities to get themselves used to the actual working environment and settle into their work before undergoing the productivity assessment.

• According to the Minimum Wage Ordinance, the wage level during the trial period of employment as agreed between the employee with disabilities and the employer should not be lower than 50% of the SMW rate.

• The length of the trial period is 4 weeks or up to the day on which the assessment of the employee with disabilities is completed, whichever period is the shorter. If the employee with disabilities and the employer jointly make an application in writing to the Labour Department for extending the trial period of employment before the end of the trial period, the Commissioner for Labour may, in exceptional circumstances, grant approval to extend the trial period of employment by up to 4 weeks (i.e. not more than 8 weeks in total).

• The trial period of employment is not equivalent to the probation period under the Employment Ordinance. Therefore, even if the employee with disabilities invokes the productivity assessment and undergoes a trial period of employment, he/she can, at the same time, agree with the employer on whether a probation period is required and the respective length (if any) under his/her contract of employment.
  
  

  Note 1：

  Serving employees with disabilities who opt for the productivity assessment can undergo the assessment directly without going through the trial period of employment. However, should their work be varied, the employees with disabilities may choose to invoke the assessment before the variation is due to take effect, and agree with their employers on a trial period of employment for the new work arrangement.

3. Approved Assessors

• Employees with disabilities have the right to select the approved assessor for the productivity assessment.

• An approved assessor should not conduct productivity assessment for an employee with disabilities who works in the same organisation (or its subsidiary) or the recommending organisation (or its subsidiary) of the approved assessor.

• Information of the approved assessors is set out in the "Register of Approved Assessors". In addition to conducting search by clicking the orange button "Click here to find an Approved Assessor" at the top right corner on this webpage, one can also browse the "Register of Approved Assessors" available at the following offices of the Labour Department during office hours (9 am to 1 pm and 2 pm to 6:15 pm from Mondays to Fridays except Public Holidays):

  Statutory Minimum Wage Division :
  1/F, Harbour Building, 38 Pier Road, Central, Hong Kong

  Selective Placement Division :
  Hong Kong Office	-	G/F, East Wing, Harbour Building, 38 Pier Road, Central, Hong Kong
  Kowloon Office	-	G/F, Ngau Tau Kok Government Offices, 21 On Wah Street, Ngau Tau Kok, Kowloon
  New Territories Office	-	2/F, Tsuen Wan Government Offices, 38 Sai Lau Kok Road, Tsuen Wan, New Territories

• Approved assessors include registered occupational therapists, registered physiotherapists, registered social workers and vocational rehabilitation practitioners with the requisite experience. All approved assessors are approved by the Commissioner for Labour on a personal basis and have completed training arranged by the Labour Department (see “The criteria for applying for appointment as approved assessors” (PDF)).

4. Undergoing the assessment

• The purpose of the productivity assessment is to assess whether or not and the degree to which the productivity of the employees with disabilities in performing the work required under the contract of employment is affected by his/her disability, so as to determine whether they should be remunerated at not lower than the statutory minimum wage rate or at a rate commensurate with their productivity. Therefore, the assessment must be conducted in the actual workplace of the employee with disabilities.

• The assessment will be conducted on a date agreed by the approved assessor with the employee with disabilities and the employer. If the employee with disabilities chooses to undergo a trial period of employment in accordance with the Minimum Wage Ordinance, the productivity assessment should in principle be conducted during the trial period of employment. However, an assessment made after the expiry of the trial period of employment shall also be valid.

  The basic principles of the assessment
  • Prior to conducting the productivity assessment, the approved assessor must explain to the employee with disabilities and the employer their respective rights and responsibilities under the relevant provisions of the Minimum Wage Ordinance, particularly, the right to invoke the assessment is entirely vested in the employee with disabilities.
  • The approved assessor should be objective and impartial throughout the assessment. It is incumbent on the approved assessor to ensure that no conflict will arise between his/her duties involved in conducting the assessment and his/her other interests.
  Procedures and methods of assessment
  • In conducting the productivity assessment, the approved assessor should collect detailed information on the work of the employees with disabilities (including duties, requirements and procedures of the work, the overall work flow of the workplace as well as performance of other employee(s) performing the same or similar work) through the employer, the employee with disabilities and any other relevant person(s) conducive to the understanding of the work (such as other employee(s) of the employer performing the same or similar work).
  • Based on the detailed information on the work collected, the approved assessor should exercise his/her professional expertise and experience to decide on the appropriate factor(s) to be considered in the assessment which include quality of work, quantity of work, working speed or other requirements for performing the work. With reference to the factor(s) selected, the approved assessor should, by adopting suitable methods of assessment such as on-site observation and analysing performance data of the above factor(s), assess the degree of productivity of the employee with disabilities.
  • If the approved assessor, having regard to all the facts and evidence available, is of the view that the performance of the employee with disabilities and degree of productivity on the day of assessment is adversely affected by any reasons that cause him/her failing to perform at full potential, the approved assessor may adjust upwards the assessed degree of productivity of the employee with disabilities as appropriate.

5. Outcome of the assessment

• After the productivity assessment, the approved assessor would issue the employee with disabilities and the employer a "Certificate of Assessment on the Degree of Productivity of Persons with Disabilities" (see Sample) stating the degree of productivity of the employee with disabilities in performing the work concerned. The employee with disabilities and employer have to countersign the certificate of assessment. After the completion of the assessment, the employee with disabilities shall not have any further assessment made for the same work with the same employer.

• Where the assessment is completed within the trial period of employment or the employee with disabilities need not undergo the trial period of employment, from the first day after the certificate is countersigned by the employee with disabilities and the employer, the employer should pay the employee with disabilities at no less than a wage rate commensurate with the degree of productivity stated in the certificate, viz.:

  Minimum wage level that employer should pay to employee with disabilities after assessment

  =

  Assessed degree of productivity as stated in the certificate of assessment

  ×

  SMW rate^

  ^To be calculated in future according to the latest SMW rate in force

• Where the assessment is completed after the expiry of the trial period of employment, upon countersigning the certificate of assessment by the employee with disabilities and the employer, the minimum wage commensurate with the degree of productivity stated in the certificate will take retrospective effect on and from the first day after the expiry of the trial period of employment.

• It should be noted that after the productivity assessment, the employee with disabilities is still required to hold a valid "Registration Card for People with Disabilities" to enable the assessed degree of productivity stated in the certificate of assessment to remain valid. Any "Registration Card for People with Disabilities" with an expiry date has to be renewed as early as possible before expiration. Otherwise, the employer has to pay the employee with disabilities at not lower than the SMW rate starting from the date when the "Registration Card for People with Disabilities" becomes invalid. Therefore, both the employer and employee should pay attention to the expiry date of the "Registration Card for People with Disabilities".

• If either the employee with disabilities or the employer fails to countersign the certificate of assessment, on and from the first day after the completion of assessment, the employer has to pay the employee with disabilities at not less than the SMW rate.

• The fee of the productivity assessment is borne by the Labour Department. The employee with disabilities and the employer should not pay any fee to the approved assessors or any other person for the assessment.

Comments on the implementation of the productivity assessment mechanism from stakeholders

• We note that many organisations are employing persons with disabilities with wages at not lower than SMW. Notwithstanding this, persons with disabilities whose productivity may be impaired by their disabilities are given an option to undergo assessment and be remunerated at a rate commensurate with their productivity so that the possible impact on their job opportunities upon implementation of SMW could be minimised. (Mr Cheung Kin-fai, the then Chairperson of the Hong Kong Joint Council for People with Disabilities)

• Working abilities of many persons with disabilities are on par with their able-bodied counterparts. A lot of enterprises are enthusiastic in employing persons with disabilities at not less than the SMW rate upon the implementation of SMW. In general, employees with disabilities who have undergone the assessment and their employers respond positively to the assessment mechanism and consider its procedures not complicated at all. (Ms Deborah Wan, the then Vice-Chairperson of the Hong Kong Joint Council for People with Disabilities)

• To many persons with disabilities and their parents, job opportunities are important whilst salary level is sometimes regarded as a secondary consideration. The productivity assessment mechanism aims not only to allow employees with disabilities to be remunerated at wages commensurate with their productivity but also to encourage employers to employ more persons with disabilities so as to enhance their employment opportunities. (Mrs Julie Lee, Executive Committee Member of the Parents’ Association of Pre-school Handicapped Children)

• The approved assessors conducting productivity assessment for employees with disabilities are all experienced in vocational rehabilitation or other services in relation to the employment of persons with disabilities and their overall quality is good. Some approved assessors who have performed assessment remark that they have good grasp of the procedures and skills of conducting assessment and the process has been very smooth. (Ms Candy Shum, the then Chief Officer (Service) of the Mental Health Association of Hong Kong)