Member Article

In Hong Kong, some companies located in comparatively less accessible areas provide shuttle bus services for employees to travel to and from the workplace. This, of course, raises issues of liability and entitlement. More specifically, in the unfortunate event of a member of staff being injured while travelling on the company shuttle, he or she is entitled to make a claim under the Employees' Compensation Ordinance (ECO).

As a general principle, an employee can claim compensation for injury caused by an accident proven to have arisen out of and in the course of employment. Under the ECO, that includes the time spent travelling as a passenger on a shuttle bus operated by or on behalf of the employer. It should be noted, though, that the provisions of the ECO generally apply to staff who are retained under contracts of service or apprenticeship.

In this context, the definition of "employee" does not include casual workers engaged for purposes other than the company's trade or business, or independent contractors. Therefore, such individuals may need to consider obtaining insurance coverage at their own cost to protect themselves.

Concerning a "regular" member of staff travelling on a company bus with the employer's permission, it is important to note certain points. Firstly, the provisions of the ECO apply regardless of whether the employee pays for the shuttle bus service. Secondly, the company will not be able to exclude liability by trying to put in place some kind of disclaimer. Pursuant to section 31 of the ECO, a contract will be null and void if it purports to remove or reduce the liability of any person to pay compensation under the provisions of the ECO.

Thirdly, an employee is fully protected by the ordinance no matter whether an accident leading to injury takes place on a public road or on private company premises. And fourthly, if a member of staff is injured while the company shuttle bus is on a public road, that person is not obliged to get a copy of a police report in order to claim compensation.  

The ECO sets out the situations where compensation is payable. The amount is determined in different ways depending on the number of days an accident incapacitates the employee. If this is for not more than three days, the company should make payment for sick leave according to a recommended formula based on monthly earnings. If temporary incapacity lasts for between three and seven days, or longer, there may be an element of negotiation to reach agreement on the amount of compensation. Absent any agreement between the parties, the amount will be eventually decided by the court.

If there is reason to make a claim for compensation, the employee must notify the company of the accident as soon as practicable. He must also be prepared to submit himself to a medical examination conducted by a doctor designated by the employer. This should be free of charge provided it is offered within seven days of notification of the accident. The ECO also prescribes a statutory time limit of 24 months for making applications for compensation.

To comply with the ordinance, companies are required to take out suitable insurance coverage. One important purpose is to ensure that compensation can be paid to an injured worker. Any employer failing to maintain this compulsory insurance cover commits an offence and is liable to a fine of up to HK$100,000 and imprisonment for up to two years on conviction.

Under the ECO, an employer is also required to notify - by submitting a prescribed form to the Commissioner for Labour - of any work-related accident, irrespective of whether it gives rise to any liability to pay compensation.  

In more serious cases, which lead to an injured member of staff suffering a loss of earning capacity, the Employees' Compensation (Ordinary Assessment) Board or the Employees' Compensation (Special Assessment) Board will consider the circumstances and issue a certificate of assessment. Both boards are appointed by the Commissioner for Labour.

As part of the process, it may be necessary for the Occupational Medicine Unit of the Labour Department to arrange for the injured employee to attend a medical examination. This will gauge the extent of any permanent loss of earning capacity and the period of absence from work, which will serve as the basis for calculating compensation.

If either employer or employee wishes to object to the outcome, they must do so within 14 days and any further objection can be made to the District Court within six months.

An employee who suffers injuries while travelling to or from his workplace on public transport is unlikely to be protected under the provisions of the ECO. However, if an accident occurs while the employee is travelling on public transport in order to perform his duties, for example as a messenger or office assistant delivering mail, he can claim compensation under the ECO. In such circumstances, the employer should make a report to the Commissioner for Labour in respect of the injuries within 14 days.