Section 70 of the employment ordinance: Does it stand in the way of employers and employees settling matters once and for all?

Section 70 of the Employment Ordinance prevents an employer from agreeing with an employee to reduce or extinguish, in the contract of employment between them, the minimum rights and benefi ts conferred on the employee under the Ordinance. While preventing "contracting out" of rights and benefi ts under the Ordinance is a critical part of achieving its aim of protecting employees, it is questionable how far s 70 goes in fettering the freedom of contract of employers and employees. This article examines whether s 70 ought to be construed broadly enough to capture, not only contracts under which an employer agrees to engage a person as an employee, but also agreements that an employer and an employee may make at the conclusion of their relationship to fi nalise matters between them. This article examines the provision in light of its context and purpose and concludes that on a proper construction, s 70 should not be understood as extending so far. Moreover, while little consideration of this question can be found in case law, the weight of existing cases can be understood to support this conclusion.