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Case 2 : Who is the employer?



Parties Involved :Mr Wong (a waiter)
Ms Chan (officer-in-charge of Limited Company A, Company B and Company C)

The Case

Mr Wong made a complaint to MPFA about his former employer, Ms Chan. Every month, Ms Chan deducted 5% from his salary as MPF contributions. However, the employer never remitted the contributions to his MPF trustee for him. Mr Wong said that during his employment, the company had changed its name several times: namely, Limited Company A, Company B and Company C. Mr Wong said he forgot when the companies had changed names. He could only recall that no matter which company had employed him, all employment arrangements had been made by Ms Chan.

Investigation and Enforcement Action by MPFA

After receiving the complaint from Mr Wong, MPFA immediately started an investigation, including calling and writing to the companies and Ms Chan, requesting a meeting and relevant information.
 
After investigation, it was confirmed that Ms Chan was the manager of Limited Company A, and that she was also the sole proprietor of Company B and Company C. According to information from the respective MPF trustees and MPFA’s own records, Limited Company A and Company C had enrolled Mr Wong in an MPF scheme but neither company had ever made any contributions for him, while Company B had never enrolled him in any MPF scheme.
 
Ms Chan said that she was the manager of Limited Company A but not the person in charge, and also that there was no money to make contributions from Company B and Company C as they were closed down.
 
Although Ms Chan was merely the manager of Limited Company A, with her consent or negligence, and without any reasonable excuse, the company enrolled Mr Wong in an MPF scheme but did not make contributions for him. Therefore, she breached the MPFSO. Similarly, as the sole proprietor of Company C, Ms Chan did not make contributions for Mr Wong; hence, she also breached the Ordinance on this count.
 
Ms Chan, as the sole proprietor of Company B, did not enrol Mr Wong in an MPF scheme within the first 60 days of employment. Thus, she has committed another breach of the Ordinance.
 
In view of the above offences, MPFA initiated prosecution against Ms Chan. In a court hearing, Ms Chan was convicted of the above allegations and fined a total of $14,300.

Understanding MPFSO

Enrolling employees in an MPF scheme
Employers must enrol both full-time and part-time employees at least 18 and under 65 years of age in an MPF scheme within the first 60 days of employment (except for certain exempt persons). Self-employed persons have to enrol themselves in an MPF scheme within the first 60 days of becoming self-employed.
 
Industry Schemes have been established under the MPF System for employers in the construction and catering industries to enrol “casual employees” (i.e. persons employed on a day-to-day basis or for a fixed period of less than 60 days). Employers in these schemes are required to make contributions for their casual employees even if the employment period is only one day.

Legal Consequences & Penalties
Employers who fail to enrol their employees in an MPF scheme or who fail to make MPF contributions for their employees commit an offence. Convicted offenders are subject to a maximum fine of $350,000 and three years’ imprisonment. Employers who fail to remit deducted wages as MPF contributions to the trustees concerned are subject to a maximum fine of $450,000 and four years’ imprisonment.

Last Revision Date: 01/02/2013