From Lexology, Elsie Chan discusses whether dancers are employees are independent contractors. Elsie writes:
More than half a year has passed since the tragic accident that took place during a concert of a very popular Hong Kong pop boy group “Mirror”, causing personal injuries to some of its dancers.
According to recent news reports, the Labour Department has laid charges against the company which engaged the dancers for the concert (the “Company”), amongst others, for failing to enrol the dancers into an employees’ compensation scheme for work-related injuries or occupational diseases, and failing to report the injuries as required by law.
It is the Company’s view that the dancers are independent contractors, and therefore they are not subject to the protections provided under various employment-related legislations, e.g. the Employment Ordinance and Employees’ Compensation Scheme Ordinance. However, after considering the facts, the Labour Department considered otherwise and therefore commenced prosecution against the Company for failing to provide such employment-related benefits.
So, should dancers be considered as employees, independent contractors, or… does it depend?
Whether a worker is an employee or an independent contractor ultimately depends on the actual work arrangement. Even if a worker signed an agreement expressly stating himself to be an independent contractor, it is in fact not conclusive per se, and in case of dispute, the courts in Hong Kong will look at the overall picture to determine the parties’ relationship.
Over the years, the courts in Hong Kong have developed a number of tests to consider whether a worker is an employee or an independent contractor. They are:-
1. Control Test – the extent to which the worker can exercise control over his work
The higher the degree the worker can exercise control over his work e.g. when to work, where to work, how to work, etc., the higher the chance the worker will be considered an independent contractor.
2. Entrepreneur Test – the extent to which the worker can be considered as running a business on his own
If a worker seems to be running a business on his own, it is more likely that he will be considered an independent contractor. For example, does the worker hold a business registration certificate; is there a chance that the worker will be running his business at a loss, or he is simply receiving a fixed monthly payment; and/or is the worker required to provide his own tools and incur expenses when providing the service?
3. Integration Test – the extent to which the worker can be separated from the company’s structure or main business
If the worker can be easily separated from the engaging company’s employees or distinguished from the main business of the company, then it is more likely the worker will be considered an independent contractor.
None of the above tests prevail over the other, and the courts will consider the overall picture presented by the facts as to whether the relationship is one of employment.
Read the full story at Mirror, Mirror on the wall, whether dancers are employees after all? – Lexology
