Hong Kong Ordinances

OCCUPATIONAL RETIREMENT SCHEMES ORDINANCE - SECT 3

Restrictions on operation of occupational retirement schemes

(Past version on 01/07/1997).
(Past version on 30/06/1997).

(1) Subject to subsection (2), an employer shall not operate, contribute to
(whether on his own behalf or on behalf of any other person) or otherwise
participate in an occupational retirement scheme or enter into a contract with
his employees under which membership of an occupational retirement scheme is
provided unless-

   (a)  the scheme is a registered scheme;

   (aa) the scheme is a registered scheme within the meaning of section 2 of
        the Mandatory Provident Fund Schemes Ordinance ( Cap 485); (Added 4 of
        1998 s. 4)

   (b)  the scheme is contained in or otherwise established by any Ordinance;
        (Amended 76 of 1993 s. 14)

   (c)  the scheme is an exempted scheme; or (Replaced 53 of 1995 s. 3.
        Amended 80 of 1997 s. 102)

   (d)  an application has been made in respect of the scheme under
        section 7(1) or 15 and has not been finally disposed of.

(2) Where an employer enters into a contract with his employee under which
membership of a proposed occupational retirement scheme is provided,
subsection (1) does not apply-

   (a)  before the expiry of 3 months after the date on which the contract is
        entered into; or

   (b)  (where an application is made in respect of the scheme under
        section 7(1) or 15 within 3 months after the date on which the
        contract is entered into) before the application has been finally
        disposed of.

(3) Any person who contravenes subsection (1) commits an offence and shall be
liable-

   (a)  on summary conviction to a fine of $100000 and to an additional fine
        of $5000 for each day during which the offence continues;

   (b)  on conviction upon indictment to-

        (i)    a fine of $500000;

        (ii)   an additional fine of $10000 for each day during which the
               offence continues; and

        (iii)  imprisonment for 2 years.

(4) In this section "employer" (僱主) does not include the government of a
country, territory or place outside Hong Kong or any agency or undertaking of
or by such a government which is not operated for the purpose of gain.
(Amended 31 of 1999 s. 3)

(5) For the purposes of subsection (1), where any person providing service on
a full-time basis to a business or other organization in Hong Kong for a
period of more than 4 years in such manner and subject to such degree of
control that he may reasonably be regarded as an integral part of the
organization is a member of an occupational retirement scheme, the proprietor
of the organization shall be regarded as participating in the scheme as an
employer whether or not there is a contract of employment between such persons
and him. (Enacted 1992)

"employer" (僱主)