The Mandatory Provident Fund Schemes Ordinance
The Mandatory Provident Fund Schemes Ordinance (the “Ordinance”) covers employees and self-employed persons aged 18 to aged below 65, except for exempt persons stipulated in the Ordinance. One category of exempt persons is overseas employees who need a visa for the purposes of employment in Hong Kong.
Section 4(3) of the Ordinance provides that any person entering Hong Kong for the purpose of being employed or self-employed for a limited period only, or who is a member of a provident, pension, retirement or superannuation scheme of a place outside Hong Kong, shall be exempt from the provisions of the Ordinance. Section 203 of the Mandatory Provident Fund Schemes (General) Regulation (“General Regulation”) further provides that if a person enters Hong Kong when permission is given to the person to land or remain in Hong Kong for the purposes of employment under the conditions of stay imposed in accordance with section 11 of the Immigration Ordinance and
(1) the period during which the person is given permission to remain in Hong Kong does not exceed 13 months; or
(2) the person is a member of a provident, pension, retirement or superannuation scheme established outside Hong Kong,
the person is exempt from joining an MPF scheme.
Hence, the MPF exemption is only applicable to those persons who do not have the right of abode or the right of stay or who have not been granted unconditional stay in Hong Kong under the immigration regulations and whose visas are granted for employment purposes.
If an employee is given permission to land or remain in Hong Kong for the purposes of employment under the conditions of stay imposed in accordance with section 11 of the Immigration Ordinance and is a member of an overseas retirement scheme, he would be exempted from joining an MPF scheme. In case the employee is not a member of an overseas retirement scheme, he would be exempt from the provisions of the Ordinance if he is permitted to remain in Hong Kong for a period of not more than 13 months. During the period where the employee is an exempt person, both the employer and the employee are not required to make any mandatory contributions.
For the purpose of exemption on the ground of overseas retirement scheme membership, the overseas scheme refers to any type of scheme, including a statutory, or social security or government retirement scheme which provides retirement benefits. Moreover, as long as the person is a member of an overseas scheme, whether contributions are made to the overseas scheme during the period the person is in Hong Kong is irrelevant.
Employees who are eligible to be an exempt person are not required to apply for exemption. The exemption is automatically granted to the person.
However, if the employee is not an exempt person stipulated in the MPF legislation, the employer is required to enroll him into an MPF scheme provided that he is aged 18 to aged below 65 and has been employed for a continuous period of not less than 60 days.
For more details on the exemption criteria, you may make reference to the MPF Guidelines IV. 15 “Guidelines on Person Exempt under section 4(3) of the Mandatory Provident Fund Schemes Ordinance” which can be downloaded from www.mpfa.org.hk under the “Legislation & Regulations” – “Guidelines” , “Part IV – Scheme Operations”.
Startupr Hong Kong Limited