Productivity Assessment for Employees with Disabilities
under the Statutory Minimum Wage Regime
Click here to find an Approved Assessor

The latest revision of the statutory minimum wage rate also applies to employees with disabilities. Those who have chosen the special arrangement are entitled to wages of not less than the amount to be calculated according to the revised rate. For details, please refer to Revision of the Statutory Minimum Wage: Notes for Employees with Disabilities and Employers.


Rights of employees with disabilities relating to Statutory Minimum Wage

The Minimum Wage Ordinance has come into effect since 1 May 2011. Statutory Minimum Wage (SMW) applies to employees with disabilities and able-bodied employees alike. 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 provided under the Minimum Wage Ordinance so that employees with disabilities whose productivity may be impaired by their disabilities are entitled to choose to have their productivity assessed 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.



Criteria and procedures for invoking the assessment

Flow chart of the productivity assessment for employees with disabilities

1The 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.
2The employee with disabilities may, before commencing employment, agree with the employer to undergo a trial period of employment of not more than 4 weeks to adapt and settle into the work before undergoing assessment. 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.
3The employee with disabilities contacts the approved assessor to be selected from the register of approved assessors of the Labour Department to conduct the assessment.
4The approved assessor conducts the assessment in the actual workplace of the employee with disabilities, collects detailed information on the work and selects appropriate factors to be considered and suitable methods of assessment.
5The approved assessor explains the assessment result and issues the "Certificate of Assessment on the Degree of Productivity" to the employee with disabilities and the employer. The fee of the approved assessor 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, relevant 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 Labour and Welfare Bureau at 2810 3859, 2810 3861, 3655 4777 or 2810 3841.

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.

  • 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 for extending the trial period of employment before the end of trial period of employment, the Commissioner for Labour may, in exceptional circumstances, 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 separately 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 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.


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" (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
    × 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 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 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 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 on the certificate, 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 approved assessors 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.


Transitional arrangement for employees with disabilities engaged prior to the implementation of the Minimum Wage Ordinance

  • Serving employees with disabilities who have elected the transitional arrangement under the Minimum Wage Ordinance by completing and signing jointly with their employers before 1 May 2011 the "Option Form" specified by the Labour Department may at any time invoke the productivity assessment (viz. to contact the approved assessor to be selected from the register of approved assessors of the Labour Department to conduct the assessment as stated in the flow chart of the assessment above), having regard to their individual circumstances and needs.

  • The option of transitional arrangement made by a serving employee with disabilities will be void if his/her "Registration Card for People with Disabilities" becomes invalid or he/she is no longer engaged for the work concerned before invoking the productivity assessment.

  • Before the completion of productivity assessment, these serving employees with disabilities may retain their original wage rate. Adjustment of the SMW rate in the interim will also be applicable to them, i.e. to multiplying the percentage of the original wage rate over the initial SMW rate Note 2 by the revised SMW rate:

    Minimum wage level that
    employer should pay to
    serving employee with
    disabilities before
    completion of assessment
    = Wage rate in
    percentage stated
    in the Option Form
    × Latest SMW
    rate in force^

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

  • After the assessment, the wage level of the employees with disabilities will be determined in accordance with the degree of productivity stated in the "Certificate of Assessment on the Degree of Productivity".

  • Note 2: The initial SMW rate was $28 per hour.

Question-and-answer on the productivity assessment mechanism

Q1: Do all employees with disabilities have to undergo productivity assessment?
A1: For newly employed employees with disabilities: They may choose whether to invoke the assessment or not having regard to their individual circumstances and needs. The right to invoke the assessment is entirely vested in the employees with disabilities, not the employers. For employees with disabilities who do not elect to undergo the assessment, their employers must pay them at not lower than the SMW rate.

For employees with disabilities who were already in employment and opted for transitional arrangement before 1 May 2011: They may invoke the assessment at any time. Before completion of the assessment, they may retain their original wage rate. Adjustment of the SMW rate in the interim will also be applicable to them.

Q2: Can an employee with disabilities who does not hold a valid "Registration Card for People with Disabilities" invoke the productivity assessment before he/she applies for the Registration Card?
A2: An employee with disabilities must hold a valid "Registration Card for People with Disabilities" in order to exercise the right to invoke the assessment. After the assessment, he/she is still required to hold a valid "Registration Card for People with Disabilities" to enable the assessed degree of productivity to remain valid.

Q3: Is it mandatory for employees with disabilities to be remunerated at 50% of the SMW rate during the trial period of employment?
A3: Employees with disabilities and employers are free to agree on the wage level during the trial period of employment which should not be lower than 50% of the SMW rate.

Q4: How should the employer pay the employee with disabilities if the productivity assessment is completed after the expiry of the trial period of employment?
A4: Under the circumstances, the SMW rate commensurate with the assessed degree of productivity as stated in the "Certificate of Assessment on the Degree of Productivity" should take retrospective effect on and from the first day after the expiry of the trial period of employment upon the countersigning of the certificate by the employee with disabilities and the employer.

Q5: The length of the trial period of employment is not more than 4 weeks. Can employees with disabilities and their employers extend the trial period of employment on their own?
A5: Employees with disabilities and their employers cannot extend the trial period of employment on their own. With special reasons, they may jointly make an application 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, extend the trial period of employment by up to 4 weeks (i.e. not more than 8 weeks in total).

Q6: Is the arrangement of the trial period of employment and the probation period mutually exclusive?
A6: The purpose of the trial period of employment under the Minimum Wage Ordinance is to allow employees with disabilities to get themselves used to the actual working environment and settle into their work before undergoing the assessment.

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 separately agree with the employer on whether a probation period is required and the respective length (if any) under his/her contract of employment.

Q7: Subsequent to the completion of productivity assessment, is the outcome of the assessment also applicable to all kinds of work of the employee with disabilities in future?
A7: The assessment result as stated in the "Certificate of Assessment on the Degree of Productivity" is only applicable to the work required under the contract of employment to be performed by the employee with disabilities for the employer as specified in the certificate. The employee with disabilities shall not have any further assessment made for the same work with the same employer. However, the employee with disabilities has the right to invoke another assessment if he/she works for another employer or there is a variation in the kind of work required under the contract of employment.

Q8: How is impartiality of approved assessors ensured?
A8: All approved assessors already have the requisite experience and professional knowledge on vocational rehabilitation or other services in relation to the employment of persons with disabilities. Approved assessors are approved by the Commissioner for Labour in their personal capacity, and have to be objective and impartial in making the assessment in accordance with the requirements of the Minimum Wage Ordinance. It is incumbent on the approved assessors to ensure that no conflict will arise between their duties involved in conducting the assessment and their other interests. The Labour Department has provided training and guidelines to the approved assessors and would closely keep track of the assessment cases.

Comments on the implementation of the productivity assessment mechanism from stakeholders

The productivity assessment mechanism provided for employees with disabilities under the SMW regime is the fruit of the Government’s elaborate consultations with stakeholders. Comments on the implementation of the assessment mechanism from stakeholders concerned are appended below:

  • 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, 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, 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, Chief Officer (Service) of the Mental Health Association of Hong Kong)


Enquiries

24-hour enquiry hotline 2717 1771
(handled by "1823")
Email enquiry@labour.gov.hk
Fax Fax number:3101 4705
Post
Address: Statutory Minimum Wage Division, Labour Department
1/F, Harbour Building, 38 Pier Road,
Central, Hong Kong
Visit the Labour Department in person Offices of Labour Relations Division



The interpretation of the Minimum Wage Ordinance (Cap. 608) should be based on its original text. The full text of the Minimum Wage Ordinance has been uploaded to the Hong Kong e-Legislation of the Department of Justice website at www.elegislation.gov.hk.