EMPLOYMENT ORDINANCE
Title
EMPLOYMENT ORDINANCE
Description
LAWS OF HONG KONG
EMPLOYMENT ORDINANCE
CHAPTER 57
CHAPTER 57
EMPLOYMENT ORDINANCE
ARRANGEMENT OF SECTIONS
Section Page
PART 1
PRELIMINARY
1. Short title ...........................7
2. Interpretation ........................7
3. Meaning of continuous contract and onus of proof thereof 11
4. Application of Ordinance ........................................... 11
4A. Authorization of public officers ..... 12
4B. Governor may give directions ......... 12
PART 11
CONTRACTS OF
EMPLOYMENT
5. Duration of contracts of employment ..13
6. Termination of contract by notice ....13
7. Termination of contract by payment in lieu of notice 14
8. Saving of rights .....................15
8A. Damages for wrongful termination of contract ... 15
9. Termination of contract without notice by employer .......... 15
10. Termination of contract without notice by employee 15
11. Suspension from employment in certain cases 16
1 PART IIA
END OF YEAR
PAYMENT
IIA. Interpretation .....................16
1 1B. Application of Part IIA ...........17
1 11C. Payment period ........................ 17
11D. Amount of end of year payment ......18
1 11E. Time of payment of end of year payment 18
1 IF. Proportion of the end of year payment 18
PART III
MATERNITY
PROTECTION
12. Maternity leave .....................20
13. Authority to issue medical certificates 21
14. Payment for maternity leave .........21
15. Prohibition against termination of employment 22
15A. Offences ...........................23
1 15B. Records ..........................24
15C. Restriction on pay in lieu of maternity leave 24
Section Page
PART IV
REST DAYS
16. [Repealed] ..........................24
17. Grant of rest days .................................... 24
18. Appointment of rest days ............ 24
19. Compulsory work on rest days ........ 25
20. Voluntary work on rest days ......... 25
21. Void conditions ........................................... 25
PART IVA
PROTECTION AGAINST ANTI-UNION
DISCRIMINATION
21A. Application of Part IVA ....................... 26
21 B. Rights of employees in respect of trade union membership and activities 26
21C. Offer of employment conditional on offeree not being member of trade union 27
PART V
PAYMENT OF WAGES
22. Wage period .........................27
23. Time of payment of wages ............1 27
24. Payment on completion ............... 27
25. Payment on termination ................. 27
26. Manner and place of payment of wages ----- ............. 28
27. Payment not to be made in certain places 28
28. Remuneration other than wages ....... 29
29. Prohibition of agreements as to manner of spending 29
30. Provision of shops, etc. by employers for sale of commodities to employees -----
29
31. Employer not to enter into contract of employment without reasonable belief
that he can pay wages ..................................................................................... 29
PART VA
SEVERANCE
PAYMENTS
31A. [Repealed] ................................................................. 29
31B. General provisions as to right to severance payment 29
31C. General exclusions from right to severance payment by reason of dismissal 30
31D. Dismissal by employer ..............31
31E. Lay-off ............................32
31F. Excluded classes of employees ......32
31G. Amount of severance payment ........33
31H. Special provision as to termination of contract in case of strike 33
31I. Set-off of gratuity of provident fund payment against severance payment 33
31J. Change of ownership of business ....34
31K. Associated companies ...............35
31L. Implied or constructive termination of contract 36
Section..................................... Page
31M........................Death of employer or of employee 36
31N.........................Claims for severance payments 36
310.........................Making of severance payment ----- 37
31P.........................Written particulars of severance payment ----- 37
31Q..................................Presumption 38
----- PART VB
LONG SERVICE PAYMENTS
31R......General provisions as to employee's right to long service payment 38
31RA.........................Death of employee .................... 38
31RB. Application to domestic servants ...................................... 40
31S. General exclusion from right to long service payment by reason of dismissal 40
31T. Dismissal by employer 40
31U..........................Excluded classes of employees ...................................... 41
31V..........................Amount of long service payment ...................................... 41
31W......................Calculation of period of employment 42
31X.......Special provision as to termination of contract in case of strike 42
31Y.....Set-off of gratuity provident fund payment against long service payment 42
31YA. Gratuities or provident fund payment death of employee 43
31Z. Change of ownership of business .....----- 43
31ZA. Associated companies ...............44
31ZB. Implied or constructive termination of contract ...................................... 44
31ZC. Death of employer ..................45
31ZD. Making of long service payment ....45
31ZE. Written particulars of long service payment 45
PART VC
SUPPLEMENTARY PROVISIONS To PARTS VA AND VII
31ZF. Re-employment after retirement at a specified age 46
PART VI
DEDUCTINS FROM WAGES
32.....................Restriction on deductions from wages 46
PART VII
SICK~ ALLOWANCE
33..............................Sickness allowance 48
34.....................Recognized scheme of medical treatment 51
35...........................Rate of sickness allowance 51
36.....................Time for payment of sickness allowance 51
37....................Employer to keep record of sickness days 52
38.....................Records to he produced to Commissioner 53
Section Page
PART VIII
HOLIDAYS WITH PAY
39. Grant of holidays ...................53
40. Payment of holiday pay ..............55
40A. Restriction on pay in lieu of holiday 55
41. Rate of holiday pay .................56
----- PART VIIIA
ANNUAL LEAVE WITH PAY
41A. Grant of annual leave
41 B. Payment of annual leave pay .......57
41C. Rate of annual leave pay ...........57
41D. Annual leave pay on termination...................59
41E. Restriction on pay in lieu of leave 57
41F. Annual leave shutdown ..............58
41G. Employer to keep annual leave records 58
PART IX
ANCILLARY PROVISIONS RELATING TO SICKNESS ALLOWANCE
AND HOLIDAYS AND ANNUAL LEAVE WITH PAY
42. Ordinary wages instead of holiday pay, annual leave pay, maternity leave pay
or sickness allowance ...................58
43. Payment of holiday pay, etc. in event of bankruptcy, etc . 59
PART IXA
LIABILITY TO PAY WAGES OF SUB-CONTRACTOR'S AND NOMINATED
SUB-CONTRACTOR's EMPLOYEES
Interpretation and application
43A. Interpretation .....................59
43B. Application ........................60
Sub-contractor's employees' wages
43C. Liability of principal contractor and superior sub-contractor to pay wages of
employees of sub-contractors ............61
43.D Notice by employee to principal contractor 61
43E. Employer to supply information at request of employee 62
43F. Recovery of wages paid by principal contractor or superior sub-contractor 62
Nominated sub-contractor's employees' wages
43G. Liability of superior nominated sub-contractor to pay wages of employees of
nominated sub-contractors .......................... 63
43H. Notice by employee to main nominated sub-contractor 63
431. Employer to supply information at request of employee 64
43.J Recovery of wages paid by superior nominated sub-contractor 1 64
Section Page
General
43K. Cessation of employer's liability for wages paid by principal contractor,
superior sub-contractor or superior nominated sub-contractor ............... 65
43L. Service of notice ..................65
43M. Employee's rights against employer not affected 65
PART X
INFORMATION RESPECTING CONDITIONS OF
SERVICE
44. Information to persons entering employment 66
45. Information to employees ............66
46. Details of conditions and particulars of wages 66
PART XI
RECORDS, FORMS AND RETURNS
47. Records to be kept by employers ..... 67
48. Returns to be made to Commissioner .. 67
49. Form of notices, records, etc . .................... 67
49A. Requirement to keep wage and employment records 67
PART XII
EMPLOYMENT
AGENCIES
50. Interpretation and application of Part 68
51. Prohibitions in respect of the operation of employment agencies 69
52. Application for and issue of licences 69
53. Refusal to issue, or revocation of, licences 70
54. Commissioner's power of exemption ... 71
55. Withdrawal of exemption .............71
56. Maintenance and delivery to the Commissioner of prescribed registers, records
and returns .............................72
57. Prohibited acts in respect of employment agencies 72
58. Inspection of places of business of licensed or exempted employment agencies 72
59. Investigation of suspected offences . 73
60. Offences ........................................................ 73
61. Application of sections 56, 57, 58 and 59 to holders of certificates of
exemption
and exempted employment agencies ........ 74
62. Power to make regulations ........... 74
PART XIII
OFFENCES AND
PENALTIES
63. Offences and penalty ................75
63A. Offences relating to sections 23, 24, 25, 31, 72A and 72B and penalty 76
64. Prosecution of offences ............. 76
64A. Service of summons .................77
65. Liability for outstanding wages ..... 77
Section Page
PART XIV
MISCELLANEOUS
66. Wages not to be attached .........77
67. Application for apprehension of absconding employer 78
67A. Amendment of wage levels............. 78
68. Amendment of forms .............................................. 78
69. Saving as to existing contracts of service 78
70. Contracting out ......................78
71. Saving as to schemes of medical treatment under repealed Industrial
Employment (Holidays with Pay and Sickness Allowance) Ordinance 79
72. Powers of officers ..................79
72A. Duty of public officers not to disclose source of complaint, etc . 80
72B. Employment not to be terminated, etc. by reason of fact that employee has
given evidence in proceedings under Ordinance, etc . 81
72C. Presumptions .......................81
73. Regulations .........................81
74. Penalty for contravention of regulations 83
First Schedule. Continuous Employment ....----- -----
............................83
Second Schedule. Procedure for Apprehension of Absconding Employer 84
Third Schedule. Death of Employer or of Employee 87
Fourth Schedule. Specified Ordinances ....89
Fifth Schedule. Table ....................90
Sixth Schedule. Death of Employer or of Employee - Long Service Payments 90
CHAPTER 57
EMPLOYMENT
To provide for the protection of the wages of employees, to regulate general
conditions of employment and employment agencies, and for matters
connected therewith. (Amended, 5 of 1970, s. 2)
[27 September 1968]
Originally 38 of 1968-5 of 1970,23 of 1970,71 of 1970,44 of 1971, L.N. 48/72,35 of 1973,39 of 1973, 19 of 1974,
L.N. 142174, 51 of 1974, 67 of 1974, 14 of 1975, 87 of 1975, 8 of 1976, 53 of 1976, 71 of 1976, 1 of 1977, 39
of 1977. 53 of 1977, 54 of 1977, 11 of 1979, 26 of 1979, 55 of 1979, 10 of 1980,6 of 1981, 22 of 1981, L.N.
177181, L.N. 174182,27 of 1982,57 of 1983, L.N. 325183,19 of 1984, 33 of 1984, 48 of 1984, L.N.
419184,12 of 1985, 76 of 1985, L.N. 121186, L.N. 138,'87,55of 1987,24 of 1988,52 of 1988
PART I
PRELIMINARY
Short title
1. This Ordinance may be cited as the Employment Ordinance.
Interpretation
2. (1) In this Ordinance, unless the context otherwise requires-
(Amended, 48 of 1984, s. 2)
'alternative holiday' means a holiday granted or to be granted under section 39(2);
(Added, 39 of 1973, s. 2)
,annual leave' means the annual leave provided for in Part VIIIA; (Added, 53 of
1977, s. 2)
,,annual leave pay' means the annual leave pay required by this Ordinance to be
paid in respect of a period of annual leave and any sum required to be paid
under section 41D; (Added, 53 of 1977, s. 2)
'business' includes a trade or profession and any like activity carried on by a
person; (Added, 76 of 1985, s. 2)
cease', in relation to Part VA, Part VB, the Third Schedule and the Sixth Schedule,
means cease either permanently or temporarily and from whatsoever cause, and
'diminish' has a corresponding meaning; (Added, 76 of 1985, s. 2)
'child' means
(a)until the expiration of 31 August 1980, a person under the age of 14 years; and
(b) with effect from 1 September 1980, a person under the age
of 15 years; Added, 55 if 1979, s. 2)
'Commissioner' means the Commissioner for Labour; (Amended, L.N. 142174)
'confinement' means the delivery of a child; (Added, 5 of 1970, s. 3)
'contract of employment' means any agreement, whether in writing or oral, express
or implied, whereby one person agrees to employ another and that other agrees
to serve his employer as an employee and also a contract of apprenticeship;
'dangerous drug' has the meaning assigned to it in the Dangerous Drugs
Ordinance (Cap. 134);
'Director' means the Director of Medical and Health Services; (Added, 39 of
1973,s.2)
'domestic servant' includes a garden servant, chauffeur and boatboy and any other
personal servant of a like class; (Added, 76 of 1985, s. 2)
,,employee' means an employee to whom, by virtue of section 4, this Ordinance
applies;
,,employer' means any person who has entered into a contract of employment to
employ any other person as an employee and the duly authorized agent,
manager or factor of such first mentioned person;
'holiday' means
(a) a statutory holiday;
(b) an alternative holiday;
(c) a substituted holiday; or
(d)a day on which a female employee or an employee who is a young person
is required by section 39(4) to be granted a holiday; (Added, 39 of 1973, s.
2)
'holiday pay' means the holiday pay provided for by section 40; (Added, 39 of
1973, s. 2)
'issue' means a child whether under the age of majority or not of a deceased
employee and
(a) includes a step-child;
(b)includes a child adopted by the employee, but does not include a child of
the employee adopted by another person;
(c) does not include an illegitimate child; and
(d)where polygamy lawfully subsists, does not include a child who is not an
adopted child of the employee unless his mother was, at the time of his
birth, the employee's principal wife
(i) in case the relevant marriage or, where appropriate, each such
marriage constitutes a customary marriage for the purposes of the
Marriage Reform Ordinance (Cap. 178), according to Chinese law and
custom; or
(ii) in any other case, according to the law which, as regards the
relevant marriage or marriages, was the proper personal law of the
employee;(Added, 52 of 1988, s. 2)
'Labour Tribunal' means the Labour Tribunal established by section 3 of the
Labour Tribunal Ordinance (Cap. 25); (Added, 76 of 1985, s. 2)
'lock-out' has the meaning assigned to it by section 2 of the Trade Unions
Ordinance (Cap. 332); (Added, 76 of 1985, s. 2)
long service payment' means the long service payment payable by an employer
to an employee under section 31R(1) 76 of 1985,s.2)
----- C, 1
maternity leave' means absence from work, in accordance with the provisions of
Part III, by a female employee because of her pregnancy or confinement;
(Added, 5 of 1970, s. 3)
'maternity leave pay' means pay in respect of maternity leave payable to a female
employee under section 14; (Added, 22 of 1981, s. 2)
'miscarriage' means the expulsion of the products of conception which are
incapable of survival after being born before 28 weeks of pregnancy; (Added, 22
of 1981, s. 2)
'outworker' means a person to whom articles or materials are, for payment or
reward, given out to be made up, cleaned, washed, altered, ornamented,
finished or repaired, or adapted for sale, in his own home or on other premises
not under the control or managemant of the person who gave out the articles or
materials; (Added, 76 of 1985, s. 2)
'paid sickness day' means a sickness day in respect of which an employee is
entitled to be paid sickness allowance; (Added, 39 of 1973, s. 2)
'recognized scheme of medical treatment' means a scheme of medical treatment
operated by an employer and approved by the Director for the purposes of this
Ordinance under section 34(1); (Added, 39 of 1973, s. 2)
'relevant date', in relation to the termination of employment of an employee, means
(a)where the employee's contract of employment is terminated by notice in
accordance with section 6, the date on which that notice expires;
(b)where the employee's contract of employment is terminated by payment in
lieu of notice in accordance with section 7, the date up to which such
wages are calculated;
(c)where the employee terminates his contract of employment without notice
or payment in lieu in accordance with section 10, the date on which
termination takes effect;
(d)where the employee is employed under a contract for a fixed term and that
term expires, the date on which that term expires;
(e)where a continuous contract of employment specifies an age of retirement
and the employee retires at that age, the date of retirement;
(f) where the employee dies, the date of his death; and
(g)where the employee's contract of employment is terminated other than in
accordance with the provisions of this Ordinance, the date of termination;
(Replaced, 52 of 1988, s. 2)
'renewal' includes extension, and any reference to renewing a contract shall be
construed accordingly;(Added, 76 of 1985, s. 2)
'rest day' means a continuous period of not less than 24 hours during which an
employee is entitled under Part IV to abstain from working for his employer;
(Added, 23 of 1970, s. 2. Amended, 71 of 1976, s. 2)
'severance payment means the severance payment payable by an employer to an
employee under section 31B(1); (Added, 76 of 1985, s.2)
'sickness allowance' means the sickness allowance provided for by sectior. 33;
(Added, 39 of 1973, s. 2)
',sickness day' means a day on which an employee is absent from his work by
reason of his being unfit therefor on account of injury or sickness; (Added, 39 of
1973, s. 2)
6spouse' means, in relation to a married employee, the person to whom the
employee is lawfully married; (Added, 52 of 1988, s. 2)
',statutory holiday' means a holiday specified as a holiday in section 39(1) or
granted under section 39(5) or (8); (Added, 39 of 1973, s. 2. Amended, 71 of 1976, s.
2)
',strike' has the meaning assigned to it by section 2 of the Trade Unions Ordinance
(cap. 332); (Added, 76 of 1985, s. 2)
'substituted holiday' means a holiday granted under section 39(3); (Added, 39 of
1973, s. 2)
'tips and service charges', in relation to wages, means sums of money received,
directly or indirectly, by an employee in the course of and in connection with
his employment which are
(a)paid or derived from payments made by persons other than the employer;
and
(b)recognized by the employer as part of the employee's wages; (Added, 48 of
1984, s. 2)
'wage period' means the period in respect of which wages are payable under a
contract of employment or under section 22;
'wages', subject to subsections (2) and (3), means all remuneration, earnings,
allowances, tips and service charges, however designated or calculated,
capable of being expressed in terms of money, payable to an employee in
respect of work done or to be done under his contract of employment, but does
not include- (Amended, 48 of 1984, s. 2 and 76 of 1985, s. 2)
(a)the value of any accommodation, education, food, fuel, light, medical care
or water provided by the employer;
(b) any contribution paid by the employer on his own account to any
pension fund or provident fund.,
(c) any travelling allowance or the value of any travelling concession;
(d)any sum payable to the employee to defray special expenses incurred by
him by the nature of his employment;
(da) any end of year payment, or any proportion thereof, which is payable
under Part IIA; (Added, 48 of 1984, s. 2)
(e)any gratuity payable on completion or termination of a contract of
employment; or
(f)any annual bonus, or any proportion thereof, which is of a gratuitous
nature or which is payable only at the discretion of the employer;
Parts VA an
'week', for the purposes of Part VA and VB, means the period between
midnight on Saturday night and midnight on the succeeding Saturday
night; (Added, 76 of 1985, s. 21
'young person' means-
(a)until the expiration of 31 August 1980, a person who has attained the age
of 14 years but not the age of 18 years; and
(b)with effect from 1 September 1980, a person who has attained the age of
15 years but not the age of 18 years. (Replaced, 55 of 1979, s. 2)
(2) No account of overtime pay shall be taken in calculating the wages of
an employee for the purpose of-
(a) any end of year payment under Part IIA;
(b) any maternity leave pay under Part III;
(c) any severance payment under Part VA;
(ca) any long service payment under Part VB; (Added, 76 of 1985, s. 2)
(d) any sickness allowance under Part VII;
(e) any holiday pay under Part VIII; or
(f) any annual leave pay under Part VIIIA.(Added, 48 of 1984, s. 11)
(3) Where an employee who has been employed under a continuous contract
(a) is dismissed; or
(b) is laid off within the meaning of section 31 E,
and for any period of that contract he has not been paid his wages, or his full wages, but his employer has
been liable to pay him
(i) compensation under the Employees' Compensation Ordinance (Cap. 282);
(ii) in the case of a female employee, maternity leave pay; or
(iii) sickness allowance,
then the employee shall be deemed, for the purposes of Parts VA and VB and
notwithstanding any provision of this Ordinance, to have been paid, for
that period, his full wages under, and at the frequency required by, that contract as if he
had continued in the normal course in the employment to which that contract
relates, and any calculation under section 31G or 31V shall be made accordingly.
(Added, 76 of 1985, s. 2)
Meaning of continuous contract and onus of proof thereof
3. (1) In this Ordinance, 'continuous contract' means a contract of
employment under which an employee is deemed by virtue of the provisions of the
First Schedule to be in continuous employment.
(2) In any dispute as to whether a contract of employment is a continuous
contract the onus of proving that it is not a continuous contract shall be on the
employer.
(Added, 5 of 1970, s. 4. Amended, 71 of 1970, s. 2)
Application of Ordinance
4. (1) Subject to subsection (2) and section 69, this Ordinance applies to every
employee engaged under a contract of employment, to an employer of such
employee and to a contract of employment between such employer and employee.
(2) Subject to Part IVA, this Ordinance does not apply- (Amended, 51 of 1974, s.
2)
(a)subject to sections 31G(2) and 31V(3), to a person employed otherwise
than by way of manual labour whose wages exceed $11,500 per
month; (Amended, 19 of 1974, s. 2; 67 of 1974, s. 2; 26 of 1979, s. 2;
6 of 1981, s. 2; L.N. 174/82; L.N. 325/83; L.N. 419/84; L.N. 121/86;
L.N. 138/87 and 52 of 1988, s. 3)
(b)to a person who is a member of the family of the proprietor of the
business in which he is employed and who dwells in the same dwelling
as the proprietor;
(c)to a worker as defined in the Contracts for Employment Outside Hong
Kong Ordinance (Cap. 78);
(d)to a person who is serving under an agreement entered into pursuant
to section 10(1) of the Merchant Shipping Ordinance (Cap. 28 1), or on
board a ship registered in a country which is represented by a consular
officer resident in Hong Kong; (Amended, 48 of 1984, s. 3)
(e) [Deleted, 8 of 1976, s. 491
1 3), labour whose 2
(2A) This Ordinance shall not apply to contracts of apprenticeship registered
under the Apprenticeship Ordinance (Cap. 47) except to the extent provided in that
Ordinance. (Added, 8 of 1976, s. 49)
(3) For the avoidance of doubt it is hereby declared that the provisions of
section 5(3) shall not apply to any contract of employment made before 1 April 1965.
Authorization of public officers
4A. The Commissioner may in writing authorize any public officer or class of
public officer to exercise or perform any or all of the powers, functions or duties
conferred or imposed on the Commissioner under this Ordinance.
(Added, 10 of 1980, s. 2)
Governor may give directions
4B. (1) The Governor may give such directions as he thinks fit, either generally
or in any particular case, with respect to the exercise or performance by any public
officer of any powers, functions or duties under this Ordinance.
(2) A public officer shall, in the exercise or performance of his powers,
functions or duties under this Ordinance, comply with any directions given by the
Governor under subsection (1).
(Added, 10 of 1980, s. 2)
PART 11
CONTRACTS OF EMPLOYMENT
Duration of contracts of employment
5. (1) Every contract of employment, which is a continuous contract, shall, in
the absence of any express agreement to the contrary, be deemed to be a contract
for 1 month renewable from month to month.
(2) Notwithstanding that it is proved that a contract of employment is for a
period in excess of 1 month such contract shall be deemed to be a contract for 1
month renewable from month to month unless the contract is evidenced in writing
signed by each of the parties thereto.
(3) Notwithstanding any other provision of this section, a contract of
employment entered into by a manual worker for a period of 6 months or more or for
a number of working days equivalent to 6 months or more shall be deemed to be a
contract for 1 month renewable from month to month.
(4) Where any contract of employment for a period in excess of 1 month is
deemed by virtue of the provisions of subsection (2) or (3) to be a contract from
month to month the wages per month shall be such proportion of the total wages
agreed under the contract as 1 month bears to the agreed duration of the contract.
Termination of contract by notice
6. (1) Subject to subsections (2), (2A), (2B) (3) and (3A) and sections 15 and
33(4B), either party to a contract of employment may at any time terminate the
contract by giving to the other party notice, orally or in writing, of his intention to
do so. (Amended, 5 of 1970, s. 5; 57 of 1983, s. 2; 48 of 1984, s. 4 and 55 of 1987, s. 2)
(2) The length of notice required to terminate a contract of employment shall be
(a)in the case of a contract which is deemed by virtue of the provisions of
section 5 to be a contract for 1 month renewable from month to month and
which does not make provision for the length of notice required to
terminate the contract, not less than 1 month; (Amended, 44 of 1971, s.2)
(b)in the case of a contract which is deemed by virtue of the provisions of
section 5 to be a contract for 1 month renewable from month to month and
which makes provision for the length of notice required to terminate the
contract, the agreed period, but not less than 7 days; (Added, 44 of 1971, s.
2)
(c)in every other case, the agreed period, but not less than 7 days in the case
of a continuous contract.
(2A) Without prejudice to section 41D, annual leave to which an employee is
entitled under section 4 1 A shall not be included under subsection (2) in the length
of notice required to terminate a contract of employment. (Added, 48 of 1984, s. 4)
(2B) The period of maternity leave to which a female employee is entitled under
section 12 shall not be included under subsection (2) in the length of notice required
to terminate a contract of employment. (Added, 55 of 1987, s.2)
(3) Where in any contract of employment, whether in writing or oral, it has been
expressly agreed that the employment is on probation and the contract does not
make provision for the length of notice required for its termination such contract
may be terminated- (Amended, 44 of 1971, s. 2)
(a)by either party at any time during the first month of such employment
without notice or payment in lieu;
(b)by either party at any time after the first month of such employment by
giving to the other party notice of not less than 7 days. (Amended, 48 of
1984, s. 4)
(3A) Where in any contract of employment, whether in writing or oral, it has
been expressly agreed that the employment is on probation and the contract makes
provision for the length of notice required for its termination such contract may be
terminated
(a)notwithstanding the length of notice provided for in the contract, by either
party at any time during the first month of such employment without
notice or payment in lieu;
(b)by either party at any time after the first month of such employment by
giving to the other party notice of the agreed period, but not less than 7
days. (Added, 48 of 1984, s. 4)
(4) For the purposes of this section the expression 'month' means a period of
time commencing on the day when notice of termination of a contract of
employment is given or when employment begins, as the case may be, and ending at
the end of the day before the corresponding date in the following month or, where
there is no corresponding date in the following month or where the commencing day
is the last day of a month, at the end of the last day of the following month.
Termination of contract by payment in lieu of notice
7. (1) Subject to section 33(4B), either party to a contract of employment may at
any time terminate the contract without notice by agreeing to pay to the other party
a sum equal to the amount of wages which would have accrued to the employee
during the period of notice required by section6. (Amended, 44of 1971,s. 3and57of
1983,s. 3)
(2) Either party to a contract of employment, having given proper notice in
accordance with section 6, may at any time thereafter terminate the contract by
agreeing to pay to the other party such proportion of the sum referred to in
subsection (1) as is proportionate to the period between the termination of the
contract and the time when the notice given would have expired. (Amended, 44 of
1971, s. 3)
(3) In the case of an employee whose remuneration is calculated by the piece or
task the amount of wages which would have accrued to such employee during the
period of notice referred to in subsection (1) shall be deemed to be the amount of
wages earned by the employee during the equivalent period immediately prior to the
giving of the notice or, if for any reason it is impracticable to compute the amount in
this manner, it may be calculated by reference to the amount earned during such
equivalent period by a person in the same trade or occupation at the same work in
the same district.
(4) Notwithstanding any other provision of this Ordinance the term 'wages'
shall, for the purposes of this section, be deemed not to include overtime pay.
Saving of rights
8. Nothing in section 6 or 7 shall be taken-
(a)to prevent either party to a contract of employment from waiving, at the
time notice is required to be given for the purposes of section 6(2), (3) or
(3A), his right to notice or to payment in lieu of notice; (Amended, 48 of
1984, s. 5)
(b)to affect the right of a party to a contract of employment to terminate the
contract without notice or payment in lieu under section 9, 10 or 11(2).
Damages for wrongful termination of contract
8A. (1) Without prejudice to section 9, 10 or 11(2), where a contract of
employment is terminated otherwise than in accordance with section 6 or 7, a sum
equal to the amount of wages which would have accrued to the employee during the
period of notice required by section 6 shall be payable by the party terminating the
contract to the other party.
(2) Without prejudice to section 9, 10 or 11(2), where a party to a contract of
employment, having given proper notice in accordance with section 6 thereafter
terminates the contract before the expiry of the period of notice otherwise than in
accordance with section 7, such proportion of the sum equal to the amount of
wages which would have accrued to the employee during the period of notice as is
proportionate to the period between the termination of the contract and the time
when the notice given would have expired shall be payable by the party terminating
the contract to the other party.
(Added, 14 of 1975, s. 2)
Termination of contract without notice by employer
9. An employer may terminate a contract of employment without notice or
payment in lieu
(a) if an employee, in relation to his employment-
(i) wilfully disobeys a lawful and reasonable order;
(ii) misconducts himself, such conduct being inconsistent with the due
and faithful discharge of his duties;
(iii) is guilty of fraud or dishonesty; or
(iv) is habitually neglectful in his duties; or
(b)on any other ground on which he would be entitled to terminate the
contract without notice at common law.
Termination of contract without notice by employee
10. An employee may terminate his contract of employment without notice or
payment in lieu
(a)if he reasonably fears physical danger by violence or disease such as was
not contemplated by his contract of employment expressly or by
necessary implication;
(aa) if
(i) he has been employed under the contract for not less than the
number of years specified in section 31 R(1)(a); and
(ii) by a certificate in the form specified by the Commissioner under
section 49 and issued by a medical practitioner practising in a Government
or Government-subvented hospital, he is certified as being permanently
unfit for a particular type of work specified in the certificate for a reason or
reasons stated therein; and
(iii) he is engaged in that type of work under the contract; (Added, 52
of 1988, s. 4)
(b) if he is subjected to ill-treatment by the employer; or
(c)on any other ground on which he would be entitled to terminate the
contract without notice at common law.
Suspension from employment in certain cases
11. (1) Notwithstanding any other provision of this Ordinance or of any other
law, an employer may without notice or payment in lieu suspend from employment
any employee for a period not exceeding 14 days
(a)as a disciplinary measure for any reason for which the employer could
have terminated the contract of employment under section 9;
(b)pending a decision by the employer as to whether or not he will exercise
his right to terminate the contract of employment under section 9; or
(c)pending the outcome of any criminal proceedings against the employee
arising out of or connected with his employment:
Provided that where such criminal proceedings are not concluded
within the period of 14 days such suspension may be extended till the
conclusion of the criminal proceedings.
(2) An employee who is suspended from employment under subsection (1) may
at any time during the period of his suspension, notwithstanding sections 6 and 7,
terminate his contract of employment without notice or payment in lieu.
(3) Without prejudice to the provisions of subsection (1), an employer may lay-
off an employee for such periods as are expressly agreed in, or may be implied from,
the contract of employment:
Provided that the period of lay-off shall in no case exceed a total of 12
normal working days in any period of 4 consecutive weeks. (Replaced, 67 of 1974,s.3)
PART IIA
END OF YEAR PAYMENT
Interpretation
11A. In this Part, unless the context otherwise requires
'end of year payment' means any annual payment (whether described as
'thirteenth month payment', 'fourteenth month payment-, 'double pay', ,lend
of year bonus' or otherwise) or annual bonus of a contractual nature, but does
not include any annual bonus, or any proportion thereof, which is of a
gratuitous nature or which is payable only at the discretion of the employer;
'full month's wages' means
(a)in the case of an employee whose wages are computed by reference to a
monthly rate, his monthly rate of pay; and
(b)in any other case, a sum equivalent to the average daily wage earned by
the employee multiplied by 26, and for the purposes of this paragraph the
average daily wage shall be the average of the daily wages earned by the
employee on each day on which he worked during every complete wage
period, comprising not less than 28 days and not more than 31 days,
immediately preceding or expiring on
(i) the day on which the end of year payment becomes due under
section 11 E(1) or (2); or
(ii) the day on which the proportion of the end of year payment
becomes due under section 11 F(3) or (4);
lunar year' means a Chinese lunar year ending immediately before a Lunar New
Year's Day;
'payment period' has the meaning assigned to it by section 11 C;
'proportion of the end of year payment' means the proportion of the end of year
payment calculated in accordance with section 1 IF.
Application of Part IIA
11B. (1) Subject to any agreement to the contrary and to subsection (2),
this Part shall apply to an employee employed under a continuous contract if an
end of year payment is payable by the employer to that employee by virtue of a term
or condition (whether written or oral, express or implied) of the contract of
employment.
(2) In the case of an employee to whom this Part applies, any term or condition
of the contract of employment which purports to prevent the payment under section
1 IF of a proportion of the end of year payment shall be void.
Payment period
11C. The payment period in respect of which an end of year payment is
payable under this Part shall be
(a)the payment period specified in that behalf in the contract of
employrnent;or
(b) if a payment period is not so specified, a lunar year.
Amount of end of year payment
11D. An end of year payment payable to an employee to whom this Part
applies who has been employed by the same employer for the whole of a payment
period shall be-
(a)the end of year payment specified in that behalf in the contract of
employment; or
(b)if an end of year payment is not so specified, a sum equivalent to a full
month's wages of the employee.
Time of payment of end of year payment
11E. (1) An end of year payment payable to an employee to whom this Part
applies in respect of a payment period shall become due to the employee
(a)subject to subsection (2), on the day specified in that behalf in the
contract of employment; or
(b) if a day is not so specified, on the last day of the payment period,
and shall be paid as soon as is practicable but in any case not later than 7 days after
that day but nothing in this section shall be construed as preventing the payment of
the end of year payment at any time before that day.
(2) Where the contract of employment of an employee to whom this Part
applies who has been employed for the whole of a payment period is terminated
after the expiry of the payment period but before the end of year payment becomes
due on the day specified in the contract, the end of year payment shall,
notwithstanding that a day is so specified, become due to the employee
(a) on the day on which the contract of employment terminates; or
(b)in the case of an end of year payment that falls to be calculated by
reference to any profits of the employer, on the day on which the profits
of the employer are ascertained,
and shall be paid as soon as is practicable but in any case not later than 7 days after
that day.
Proportion of the end of year payment
11F. (1) Where, in the case of an employee to whom this Part applies who has
not been employed by the same employer for the whole of a payment period but has
been so employed for a period of not less than 26 weeks in the payment period
(a) the contract of employment is terminated-
(i) at any time during the payment period; or
(ii) on the expiry of the payment period, otherwise than by the employee
under section 6 or 7 or by the employer under section 9; or
(b)the employee continues to be employed by the employer after the expiry
of the payment period,
the employee shall be paid a proportion, calculated in accordance with subsection
(2), of the end of year payment that would have been payable under this Part if he
had been employed by the same employer for the whole of the payment period.
(2) The proportion of the end of year payment payable under subsection (1)
shall be
(a)the proportion specified in that behalf in the contract of employment; or
(b)if a proportion is not so specified, the sum which bears the same
proportion to a full month's wages of the employee as his period of service
under the contract of employment in the payment period bears to that
payment period.
(3) The proportion of the end of year payment payable under subsection (1)
shall become due to the employee
(a) under paragraph (a) of that subsection-
(i) on the day on which the contract of employment terminates; or
(ii) in the case of a proportion of an end of year payment that falls to be
calculated by reference to any profits of the employer, on the day on
which the profits of the employer are ascertained; or
(b) under paragraph (b) of that subsection-
(i) subject to subsection (4), on the day specified in the contract of
employment as the day on which the end of year payment becomes due;
or
(ii) if a day is not so specified, on the last day of the payment period,
and shall be paid as soon as is practicable but in any case not later than 7 days after
that day but nothing in this subsection shall be construed as preventing the
payment of the proportion of the end of year payment at any time before that day.
(4) Where the contract of employment of an employee to whom subsection
(1)(b) applies is terminated after the expiry of the payment period but before the
end of year payment becomes due on the day specified in the contract, the
proportion of the end of year payment payable under subsection (1) shall,
notwithstanding that a day is so specified, become due to the employee
(a) on the day on which the contract of employment terminates; or
(b)in the case of a proportion of an end of year payment that falls to be
calculated by reference to any profits of the employer, on the day on which
the profits of the employer are ascertained,
and shall be paid as soon as is practicable but in any case not later than 7 days after
that day.
(Part IIA added, 48 of 1984,
s. 6)
PART 111
MATERNITY
PROTECTION
Maternity leave
12. (1) A female employee who has been employed by the same employer
under a continuous contract for a period of not less than 26 weeks shall be entitled
to maternity leave under this Part.
(2) Maternity leave shall be the aggregate of-
(a)a period of 4 weeks immediately before the expected date of confinement;
(b)a further period, if any, from the expected date of confinement to the actual
date of confinement;
(c)a period of 6 weeks immediately after the actual date of confinement; and
(d)a further period, not exceeding 4 weeks, on grounds of illness or disability
arising out of the pregnancy or confinement.
(3) The period of maternity leave under subsection (2)(d) may be taken-
(a)wholly immediately before the period mentioned in subsection (2)(a); or
(b) wholly immediately after the period mentioned in subsection (2)(e); or
(c)in part immediately before the period mentioned in subsection (2)(a) and
in part immediately after the period mentioned in subsection (2)(c).
(4) A female employee who intends to take any period of maternity leave under
subsection (2)(a), (b) and (c) shall give notice to that effect to her employer at any
time after her pregnancy has been certified as provided in this section and such
notice shall specify- (Amended, 22 of 1981, s. 3 and 55 of 1987,s.3)
(a) the expected date of her confinement; and
(b) the date on which the maternity leave is to commence.
(4A) A female employee who has given notice under subsection (4) shall,
if her pregnancy ceases otherwise than by reason of confinement, give notice of
such cessation of pregnancy to her employer as soon as is reasonably prac-
ticable. (Added, 55 of 1987, s. 3)
(5) If her confinement takes place-
(a) before notice under subsection (4) is given; or
(b)after notice under subsection (4) is given but before the commence-
ment of the period of maternity leave under subsection (2)(a),
the female employee shall, within 7 days of her confinement, give notice to her
employer of the date on which she was confined and of her intention to take any
period of maternity leave under subsection (2)(c).
(6) A female employee who gives notice under subsection (4) shall, if so
required by her employer, produce a medical certificate-
(a) certifying that she is pregnant; and
(b) specifying the expected date of her confinement.
(7) A female employee who gives notice under subsection (5) shall, if so
required by her employer, produce a medical certificate-
(a) certifying that she has been confined; and
(b) specifying the date of her confinement.
(8) A female employee who intends to take any period of maternity leave
under subsection (2)(d) shall give notice to that effect to her employer and shall,
if so required by her employer, produce a medical certificate certifying as to the
illness or disability.
(9) A female employee who is on maternity leave and who intends to
return to work shall, if so required by her employer, give not less than 8 days'
notice to the employer of the date on which she intends to return to work and
shall state in the notice the date on which she was confined, unless the date has
been notified under subsection (5).
(10) The continuity of employment of a female employee shall not be
treated as broken by her taking maternity leave. (Added, 22 of 1981, s. 3)
(11) For the avoidance of doubt it is declared that maternity leave is, and
shall be granted, in addition to annual leave to which a female employee is
entitled under this Ordinance and that any rest day or holiday that falls due
during maternity leave shall be counted as part of the maternity leave and shall
not give rise to any entitlement to an additional or other rest day or holiday or
to holiday pay in the case of a female employee who is paid maternity leave pay
for that holiday; and where no maternity leave pay is paid to the female
employee for that holiday she shall be paid holiday pay for that holiday.
(Added, 22 of 1981, s. 3. Amended, 48 of 1984, s. 7)
Authority to issue medical certificates
13. (1) A medical certificate for the purposes of section 12(6) or (7) shall be
issued by
(a) a registered medical practitioner; or
(b)notwithstanding section 16 of the Midwives Registration Ordinance (Cap.
162), a midwife registered under section 8, or deemed to be registered
under section 25, of that Ordinance.
(2) A medical certificate for the purposes of section 12(8) shall be issued by a
registered medical practitioner.
Payment for maternity leave
14. (1) A female employee shall not he entitled to wages in respect of the period
of her maternity leave except as provided in this section or as provided in her
contract of employment if such contract provides for paid maternity leave on terms
better than in this section.
(2) Subject to subsection (6), an employer shall pay a female employee
maternity leave pay for the period of maternity leave taken by her and to which she
is entitled under section 12(2)(a) and (e) if she
(a)has been employed by that employer under a continuous contract for a
period of not less than 40 weeks before the expected date of her
commencement of maternity leave;
(b) has given notice under section 12(4) or (5);
(e)has complied with any requirement by her employer under section 12(6) or
(7); and
(d)has no children or no more than 2 children born to her and of any age at
the time when she gives notice under section 12(4) or (5) and has
produced to her employer a statutory declaration to that effect.
(3) Maternity leave pay payable under this section shall be calculated-
(a)in the case of a female employee whose wages are computed by reference
to a monthly rate, at two-thirds of her monthly rate of pay; and
(b)in any other case, at two-thirds of the average daily wage earned by the
female employee, and for the purposes of this paragraph the average daily
wage shall be the average of the daily wages earned by the female
employee on each day on which she worked during every complete wage
period, comprising not less than 28 days and not more than 31 days,
immediately preceding or expiring on the commencement of her maternity
leave:
Provided that in a case to which this paragraph applies maternity
leave pay shall not be payable in respect of a day on which the female
employee would not have worked had she not been on maternity
leave.(Replaced, 48 of 1984, s. 8)
(4) Maternity leave pay under this section shall be paid by an employer on the
same day and in the same manner as he would have been required to pay wages to
the female employee if she had not taken maternity leave and had continued in his
employ.
(5) A female employee who, without the prior permission of her employer,
works for another employer during any period of maternity leave under section
12(2)(a) and (e) shall forfeit her entitlement to maternity leave pay during that
period of maternity leave.
(6) Where a female employee is entitled to maternity leave pay for the period
prior to her confinement, her employer shall only be required under subsection (2)
to pay maternity leave pay for such period from the date of commencement of
maternity leave to the date of her confinement:
Provided that such maternity leave pay shall not in any case be payable for a
period exceeding 4 weeks.
(Replaced, 22 of 1981, s. 4)
Prohibition against termination of employment
15. (1) No employer shall terminate a contract of employment of a
female employee under section 6 or 7 during the period from the date-
(a) on which she gives notice under section 12(4) or (8); or
(b)of her confinement where she subsequently gives notice under section
12(5),
to the date on which she is due to return to work on the expiry of her maternity leave
or the date of cessation of her pregnancy (otherwise than by reason of
confinement). (Replaced, 22 of 1981, s. 5. Amended, 55 of 1987, s. 4)
(2) An employer who contravenes subsection (1) shall be liable to pay to
the female employee
(a)the sum which would have been payable if the contract had been
terminated by the employer under section 7;
(b)a further sum equivalent to the amount of wages which would have
accrued to the employee during a period of 7 days; and
(e)where the employee is or would have been entitled to maternity leave pay,
maternity leave pay for 10 weeks. (Added, 22 of 1981, s. 5)
(3) In the case of a female employee whose remuneration is calculated by the
piece or task the amount of wages which would have accrued to the employee
during the period of 7 days referred to in subsection (2)(b) shall be deemed to be
(a)if the contravention of subsection (1) occurs before the commencement of
maternity leave, the amount of wages earned by the employee during the
equivalent period immediately prior to the breach of the contract; or
(b)if the contravention of subsection (1) occurs after the commencement of
maternity leave, or if for any reason it is impracticable to compute
the amount under paragraph (a), the amount of wages earned during the
equivalent period by a female employee in the same trade or occupation at
the same work in the same district. (Amended, 48 of 1984,s.9)
(4) Any employer who contravenes subsection (1) shall be guilty of an
offence and shall be liable on conviction to a fine of 510,000. (Added, 22 of
1981, s. 5. Amended, 24 of 1988, s. 2)
Offences
15A. (1) Any employer who fails to-
(a) grant maternity leave;
(b) pay maternity leave pay; or
(c) pay sickness allowance under section 33(3C),
shall be guilty of an offence and shall be liable on conviction to a fine of
$10,000. (Amended, 24 of 1988, s. 2)
(2) Any female employee who gives false information in a statutory declaration
produced under section 14 shall be guilty of an offence and shall be liable on
conviction to a fine of $5,000. (Amended, 24 of 1988, s. 2)
(Added, 22 of 1981, s. 6)
Records
15B. Every employer who employs females shall maintain, in a form specified
by the Commissioner, a record of maternity leave taken by and maternity leave pay
paid to his female employees.
(Added, 22 of 1981, s. 6)
Restriction on pay in lieu of maternity leave
15C. Save as provided in section 15(2), no payment of maternity leave pay or
other sum may be made in lieu of the grant of maternity leave.
(Added, 22 of 1981, s. 6)
(Part III added, 5 of 1970, s. 7)
PART IV
REST DAYS
16. [Repealed, 10 of 1980, s. 31
Grant of rest days
17. (1) Subject to the provisions of this Part, every employee who has been
employed by the same employer under a continuous contract shall be granted not
less than 1 rest day in every period of 7 days. (Amended, 71 of 1976,s.3)
(2) Rest days shall be in addition to any statutory holiday, or alternative
holiday or substituted holiday, to which an employee is entitled under sec-
tion 39. (Replaced, 39 of 1973, s. 3)
Appointment of rest days
18. (1) Rest days shall be appointed by an employer and he may appoint
different rest days for different employees. (Amended, 71 of 1976, s. 4)
(2) Subject to subsection (4), every employer shall, before the commence-
ment of every month, inform each employee orally or in writing of his rest days
in that month.
(3) The provisions of subsection (2) shall be deemed to be complied with if
an employer exhibits in a conspicuous place in the place of employment and for
so long as it applies a roster showing the days appointed to be rest days for each
employee during the month.
(4) Subsection (2) shall not apply where rest days are appointed on fixed
days in each period of 7 days on a regular basis. (Amended, 71 of 1976, s. 4)
(5) An employer may, with the consent of his employee, substitute for any
rest day appointed under this section some other rest day-
(a) within the same month and before the rest day so appointed; or
(b) within the period of 30 days next following the rest day so appointed.
Compulsory work on rest days
19. (1) Subject to subsection (2), no employer shall require an employee
to work on any of his rest days.
(2) An employer may require an employee to work on his rest day if it is
necessary to do so by reason of a breakdown of machinery or plant or other
unforeseen emergency of any nature.
(3) An employer shall substitute for any rest day on which an employee is
required to work under subsection (2) some other rest day within the period of
30 days next following, notice of which shall be given to the employee within 48
hours after the employee is so required to work.
Voluntary work on rest days
20. (1) An employee may, at his own request and if the employer agrees,
work for his employer on a rest day.
(2) An employee may, at the request of his employer, work for his
employer on a rest day.
Void conditions
21. Any condition in a contract of employment which makes the payment
of any annual bonus, or any end of year payment or any proportion thereof,
subject to working on rest days granted under this Part shall be void.
(Amended, 48 of 1984, s. 10)
(Part IV added, 23 of 1970, s. 3)
PART IVA
PROTECTION AGAINST ANTI-UNION DISCRIMINATION
Application of Part IVA
21A. (1) Section 21 B shall apply to very employee whether or not he is
employed by way of manual labour and whether or not his wages exceed the amount
specified in section 4(2)(a).
(2) Section 21C shall apply to every person to whom an offer of employment is
made or is about to be made or who otherwise is, or is in the position of, a
prospective employee, whether or not he employment is to be by way of manual
labour and whether or not the wages offered or to be offered exceed the amount
specified in section 4(2)(a).
(Amended, 48 of 1984, s. 11)
Rights of employees in respect of trade union membership
and activities
21B. (1) Every employee shall as between himself and his employer have the
following rights--
(a)the right to be or to become a member or an officer of a trade union
registered under the Trade Unions Ordinance (Cap. 332);
(b)where he is a member or an officer of any such trade union, the right, at
any appropriate time, to take part in the activities of the trade union;
(c)the right to associate with other persons for the purpose of forming or
applying for the registration of a trade union in accordance with the
provisions of the Trade Unions Ordinance.
(2) Any employer, or any person acting on behalf of an employer, who-
(a)prevents or deters, or does any act calculated to prevent or deter, an
employee from exercising any of the rights conferred on him by subsection
(1); or
(b)terminates the contract of employment of, penalizes, or otherwise
discriminates against, an employee by reason of his exercising any such
right,
shall be guilty of an offence and shall be liable on conviction to a fine of
$20,000. (Amended, 24 of 1988, s. 2)
(3) In this section-
appropriate time' means, in relation to an employee taking part in any activities of
a trade union, time which either
(a) is outside his working hours; or
(b)is a time within his working hours at which, in accordance with
arrangements agreed with or consent given by or on behalf of his
employer, it is permissible for him to take part in those activities;
'working hours' means, in relation to an employee, any time when, in accordance
with his contract with his employer, he is required to be at work.
[cf. U.K. 1971 c. 72, s. 5(1), (2), (5)]
Offer of employment conditional on offeree not being member of trade union
21C. Any person who, acting on his own or another's behalf, in the
engagement of persons for employment includes in an offer of employment to any
person a condition or requirement that the person to whom the offer is made shall
undertake
(a)if he is a member or officer of such a trade union, that he will relinquish his
membership thereof or office therein;
(b) not to become a member of, or officer in, such a trade union; or
(c)not to associate with other persons for the purpose of forming or applying
for the registration of a trade union in accordance with the provisions of
the Trade Unions Ordinance (Cap. 332),
shall be guilty of an offence and shall be liable on conviction to a fine of
$20,000. (Amended, 24 of 1988, s. 2)
(Part IVA added, 51 of 1974, s. 3)
PART V
PAYMENT OF WAGES
Wage period
22. The wage period in respect of which wages are payable under a contract of
employment shall, until the contrary is proved, be deemed to be 1 month.
Time of payment of wages
23. Wages shall become due on the expiry of the last day of the wage period
and shall be paid as soon as is practicable but in any case not later than 7 days
thereafter.
Payment on completion
24. Wages of an employee on completion of his contract of employment and
any other sum payable in respect of his contract shall be due to him on the day of
the completion of the contract and shall be paid as soon as is practicable but in any
case not later than 7 days thereafter.
Payment on termination
25. (1) Subject to section 310, where a contract of employment is terminated
any sum due to the employee shall be paid to him as soon as is
practicable and in any case not later than 7 days after the day of termination.
(Amended, 44 of 1971, s. 4 and 67 of 1974, s. 4)
(2) The sum referred to in subsection (1) shall be-
(a)the equivalent of the amount earned by the employee for work done over
the period commencing on the expiry of his wage period next preceding
the time of termination up to that time;
(b)the sum (if any) payable under sections 7 and 33(4B); (Amended, 57 of
1983, s. 4 and 76 of 1985, s. 3)
(ba) and long service payment due to the employee; and (Added, 76 of
1985,s.3)
(e)any other sum due to the employee in respect of his contract of
employment.
(3) In addition to any deduction which may be made under section 32, and
subject to any order made by a court, an employer may deduct from any sum
payable under subsection (1) to an employee who terminates his employment
otherwise than under section 6, 7 or 10 such sum as the employee would have been
liable to pay if he had terminated his employment under section 7. (Replaced, 44of
1971,s. 4. Amended, [4of1975,s.3 and 48of1984,s. 12)
Manner and place of payment of wages
26. (1) Subject to this Ordinance, wages shall be paid on a working day directly
to an employee in legal tender at his place of employment or at any office or other
place customarily used by the employer for the purpose of payment of wages or at
any other place mutually agreed.
(2) With the consent of an employee wages may be paid-
(a) by cheque, money order or postal order;
(b)into an account in his name with any bank licensed under the Banking
Ordinance (Cap. 155); or
(c) to his duly appointed agent.
Payment not to he made in certain places
27. Wages, or any sum due to an employee in respect of his contract of
employment on the completion or termination thereof, shall not be paid
(a) in any place of amusement;
(b)in any place where totalizator or pari mutuel betting is conducted or where
cash-sweeps are organized as authorized under the Betting Duty
Ordinance (Cap. 108);
(c)in any place where intoxicating liquor or any dangerous drug is sold; or
(d) in any shop or store for the retail sale of merchandise,
except where the employee is employed in such place, shop or store.
Remuneration other than wages
28. (1) A contract of employment may provide for giving to an employee
food, accommodation or other allowances or privileges in addition to wages as
remuneration for his services.
(2) No employer shall give to an employee any intoxicating liquor,
dangerous drug, or any ticket or other substitute for ticket for any cash-sweep,
totalizator or pari mutuel authorized under the Betting Duty Ordinance
(Cap. 108) as remuneration for his services.
Prohibition of agreements as to manner of spending
29. No employer shall in any contract of employment or agreement in
consideration of a contract of employment make any provision as to the place
at which, the manner in which, or the person with whom, wages paid to an
employee are to be expended.
Provision of shops, etc. by employers for sale of
commodities to employees
30. An employer may establish shops, stores or places for the sale of
commodities to his employees, but no employer shall bind any employee by
contract, agreement or other obligation, written or oral, express or implied, to
make use of any such shop, store or place for the purchase of commodities.
Employer not to enter into contract of employment without
reasonable belief that he can pay wages
31. (1) No person shall enter into, renew or continue a contract of
employment as an employer unless he believes upon reasonable grounds that he
will be able to pay all wages due under the contract of employment as they
become due.
(2) An employer shall, if he ceases to believe upon reasonable grounds
that he will be able to pay all the wages due by him under a contract of
employment as they become due, forthwith take all necessary steps to terminate
the contract in accordance with its terms.
(Added, 71 of 1970, s. 3)
PART VA
SEVERANCE PAYMENTS
31A. [Repealed, 76 of 1985, s. 41
General provisions as to right to severance payment
31B. (1) Where an employee who has been employed under a continuous
contract for a period of not less than 24 months ending with the relevant
date-(Amended, 76 of 1985, s. 5)
(a) is dismissed by his employer by reason of redundancy; or
(b) is laid off within the meaning of section 31 E,
the employer shall, subject to this Part and Part VC, be liable to pay to the employee
a severance payment calculated in accordance with section 31G. (Amended, 52 of
1988, s. 5)
(2) For the purposes of this Part an employee who is dismissed shall be taken
to be dismissed by reason of redundancy if the dismissal is attributable wholly or
mainly to the fact that
(a)his employer has ceased, or intends to cease, to carry on the business for
the purposes of which the employee was employed by him;
(b)his employer has moved, or intends to move, the place in which the
employee was or is so employed
(i) from the island of Hong Kong to Kowloon or the New Territories; or
(ii) from Kowloon or the New Territories to the island of Hong Kong; or
(e)the requirements of that business for employees to carry out work of a
particular kind in the place where the employee was so employed have
ceased or diminished or are expected to cease or diminish.
(3) For the purposes of the application of this Part to an employee who is
employed as a domestic servant in, or in connection with, a private household, this
Part (except section 31J) shall apply as if the household were a business and the
maintenance of the household were the carrying on of that business by the
employer.
[cf. U.K. 1965 e. 62, ss. 1 ----- 19 (1)
General exclusions from right to severance payment by
reason of dismissal
31C. (1) Except as provided by section 31H, an employee shall not be entitled to
a severance payment by reason of dismissal where his employer, being so entitled
by reason of the employee's conduct, terminates his contract of employment without
notice or payment in lieu in accordance with section 9.
(2) An employee shall not be entitled to a severance payment by reason of
dismissal if, not less than 7 days before the relevant date, the employer has offered
to renew his contract of employment, or to re-engage him under a new contract, so
that
(a)the provisions of the contract as renewed, or of the new contract. as the
case may be, as to the capacity and place in which he would be employed,
and as to the other terms and conditions of his employment, would not
differ from the corresponding provisions of the contract as in force
immediately before his dismissal; and
(b)the renewal or re-engagement would take effect on or before the relevant
date,
and the employee has unreasonably refused that offer.
(3) An employee shall not be entitled to a severance payment by reason of
dismissal if, not less than 7 days before the relevant date, the employer has made
to him an offer in writing to renew his contract of employment, or to re-engage
him under a new contract, so that in accordance with the particulars specified in
the offer the provisions of the contract as renewed, or of the new contract, as the
case may be. as to the capacity and place in which he would be employed, and as
to the other terms and conditions of his employment, would differ (wholly or in
part) from the corresponding provisions of the contract as in force immediately
before his dismissal, but-
(a)the offer constitutes an offer of suitable employment in relation to the
employee;
(b)the offer constitutes an offer of employment no less favourable to the
employee than hitherto; and
(c)the renewal or re-engagement would take effect on or before the
relevant date,
and the employee has unreasonably refused that offer.
(4) Where the relevant date falls on a rest day or holiday, the references in
subsection (2)(a) and subsection (3)(c) to the relevant date shall be construed as
references to the next day after that rest day or holiday.
(5) An employee shall not be entitled to a severance payment by reason of
dismissal where he leaves the service of his employer-
(a)before the expiration of notice given to him by the employer in
accordance with section 6 without the prior consent of the employer;
or
(b)without having made a payment in lieu to the employer in accordance
with section 7.
[cf. U.K. 1965 c. 62, s. 21
Dismissal by employer
31D. (1) For the purposes of and subject to this Part, an employee shall
be taken to be dismissed by his employer if, but only if-
(a)the contract under which he is employed is terminated by the employer
with or without notice or payment in lieu thereof other than in
accordance with section 9;
(b)where under that contract he is employed for a fixed term, that term
expires without being renewed under the same contract; or
(c)the employee, being so entitled by reason of the employer's conduct,
terminates that contract without notice or payment in lieu in accord-
ance with section 10.
(2) An employee shall not be taken for the purposes of this Part to be
dismissed by his employer if-
(a)his contract of employment is renewed, or he is re-engaged by the same
employer under a new contract of employment; and
(b)the renewal or re-engagement takes effect immediately on the ending of
his employment under the previous contract.
(3) For the purposes of the application of subsection (2) to a contract under
which the employment ends on a rest day or holiday, the renewal or re-engagement
shall be treated as taking effect immediately on the ending of the employment under
the previous contract if it takes effect on or before the next day after that rest day or
holiday.
[cf. U.K. 1965 c. 62, s. 31
Lay-off
31E. (1) Where an employee is employed under a contract on such terms
and conditions that his remuneration thereunder depends on his being provided
by the employer with work of the kind he is employed to do, he shall for the
purposes of section 3 113(1) be taken to be laid off where the employer does not
provide such work for him on at least a total of 12 normal working days in any
period of 4 consecutive weeks and whereby he is not entitled to any remuners-
tion under the contract for such period.
Provided that any period during which an employee is not provided with work
because of a lock-out by his employer, or as a result of a rest day or holiday, shall
not be taken into account in determining whether an employee has been laid off.
(2) The continuity of a contract of employment of an employee shall not be
treated as broken by any lay-off as a result of which no severance payment has
been made.
(3) For the purposes of this Part the 'relevant date' in respect of the right of an
employee to a severance payment arising by reason of lay-off means any day on
which the period of 4 consecutive weeks referred to in subsection (1) has expired.
[cf. U.K. 1965 c. 62, s. 5(1)]
Excluded classes of employees
31F. Section 31B shall not apply
(a) where the employer is the husband or wife of the employee;
(b) to any outworker;
(c) [Repealed, 76 of 1985, s. 61
(d)to any person, employed by a government other than the Hong Kong
Government, who is a subject or citizen of the state under whose
government he is employed; or
(e)without prejudice to paragraph (a), to any person in respect of
employment as a domestic servant in, or in connection with, a private
household, where the employer is the father, mother, grandfather,
grandmother, stepfather, stepmother, son, daughter, grandson,
granddaughter, stepson, stepdaughter, brother, sister, half-brother or half-
sister of the employee.
[cf. U.K. 1965 c. 62, s. 161
Amount of severance payment
31G. (1) Subject to the provisions of this Part, the amount of a severance
payment to which an employee is entitled in any case shall be calculated by
allowing
(a)in the case of a monthly rated employee, two-thirds of his last full month's
wages; (Replaced, 39 of 1977, s. 2)
(b)in any other case, 18 days' wages based on any 18 days chosen by the
employee and occurring during his last 30 normal working days, (Replaced,
39 of 1977, s. 2)
for every year (and pro rata as respects an incomplete year) of employment under a
continuous contract by that employer subject in all cases to a maximum payment
not exceeding the total amount of wages earned during the period of 12 months
immediately preceding the relevant date;
Provided that the employee may elect to have his wages averaged over the
period of 12 months immediately preceding the relevant date. (Amended, 19 of
1984,s.2)
(2) Where an employee, who is employed otherwise than by way of manual
labour, is dismissed by reason of redundancy or is laid off and at the time of such
dismissal or lay-off earned wages exceeding $11,500 per month but within a year
prior thereto earned wages for any period not exceeding $11,500 per month, he shall
be entitled to a secerance payment in respect of the whole of the period of
employment during which his wages did not exceed $11,500 per month. (Amended, 29
of 1979, s. 3; 6 of 1981, s. 3; L.N. 174/82; L.N. 325/83; L.N. 419/84; L.N. 121/86 and L.N.
138/87)
(3) For the purposes of this section, the period of employment under a
continuous contract shall not include any such employment occurring more
than 8 years prior to the day* appointed by the Governor pursuant to section
31B(1). (Amended, 39of 1977,s. 2)
(4) [Repealed, 48 of 1984, s. 13]
Special provision as to termination of contract in case
of strike
31H. Where an employee, who has been given notice by his employer to
terminate his contract of employment, takes part in a strike before the expiry of that
notice in such circumstances that the employer is entitled by reason of his taking
part in the strike to treat the contract as terminable without notice, and the employer
for that reason terminates the contract as mentioned in section 31C(I), that
subsection shall not apply to that termination of the contract.
[cf. U.K. 1965 c. 62, s. 101
Set-off of gratuity or provident fund payment against
severance payment
31I. (1) Subject to subsection (2), where an employee is entitled-
*23.8.1974 ----- L.N.183/74.
(a) by virtue of this Part, to a severance payment; and
(b) by virtue of-
(i) the terms of his contract of employment, to a gratuity based upon
length of service; or
(ii) a provident fund scheme or arrangement, to a payment thereunder,
the severance payment shall be reduced by the amount of the gratuity or
provident fund payment (as the case may be) paid to that
employee.
(2) For the purposes of subsection (1), a provident fund payments not include that part (if any)
of the payment which represents a return of an employee's own contributions,
including any sum payable in respect of interest thereon.
Change of ownership of business
31J. (1) This section shall have effect where
(a)a change occurs (whether by virtue of a sale or other disposition or by
operation of law) in the ownership of a business for the purposes of
which a person is employed, or of a part of such a business; and
(b)in connection with that change the person by whom the employee is
employed immediately before the change occurs (in this section referred to
as 'the previous owner') terminates the employee's contract in
accordance with section 6 or 7.
(2) If, by agreement with the employee, the person who immediately after the
change occurs is the owner of the business or of the part of the business in
question, as the case may be (in this section referred to as 'the new owner') renews
the employee's contract of employment (with the substitution of the new owner for
the previous owner) or re-engages him under a new contract of employment, section
3 113(2) shall have effect as if the renewal or re-engagement had been a renewal or re-
engagement by the previous owner (without any substitution of the new owner for
the previous owner).
(3) If the new owner offers to renew the employee's contract of employment
(with the substitution of the new owner for the previous owner) or to re-engage him
under a new contract of employment, but the employee refuses the offer, section 3 1
C (2) or (3) (as the case may be) shall have effect, subject to subsection (4), in
relation to that offer and refusal as it would have had effect in relation to the like
offer made by the previous owner and a refusal of that offer by the employee.
(4) For the purposes of the operation, in accordance with subsection (3), of
section 3 1 C (2) or (3) in relation to an offer made by the new owner
(a)the offer shall not be treated as one whereby the provisions of the
contract as renewed, or of the new contract, as the case may be, would
differ from the corresponding provisions of the contract as in force
immediately before the dismissal by reason only that the new owner would
be substituted for the previous owner as the employer; and
(b)no account shall be taken of that substitution in determining whether the
refusal of the offer was unreasonable.
(5) This section shall have effect (subject to the necessary modifications) in
relation to a case where
(a)the person by whom a business, or part of a business, is owned
immediately before a change is one of the persons by whom (whether as
partners, trustees or otherwise) it is owned immediately after the change;or
(b)the persons by whom a business, or part of a business, is owned
immediately before a change (whether as partners, trustees or otherwise)
include the person or one or more of the persons by whom it is owned
immediately after the change,
as this section has effect where the previous owner and the new owner are wholly
different persons.
(6) Nothing in this section shall be construed as requiring any variation of a
contract of employment by agreement between the parties to be treated as
constituting a termination of the contract.
[cf. U.K. 1965 c. 62, s. 131
Associated companies
31K. (1) Where the employer is a company, any reference in this Part to re-
engagement by the employer shall be construed as a reference to re-engagement by
that company or by any associated company, and any reference in this Part to an
offer made by the employer shall be construed as including a reference to an offer
made by an associated company.
(2) Subsection (1) shall not affect the operation of section 31J in a case where
the previous owner and the new owner (as defined by that section) are associated
companies; and where that section applies, subsection (1) shall not apply.
(3) Where an employee is dismissed by his employer, and the employer is a
company (in this subsection referred to as 'the employing company') which has
one or more associated companies, then if
(a) none of the conditions specified in section 3 1 B(2) is fulfilled;
(b)one or other of those conditions would be fulfilled if the business of the
employing company and the business of the associated company (or, if
more than one, each of the associated companies) were treated as
together constituting one business,
that condition shall for the purposes of this Part be taken to be fulfilled in relation
to the dismissal of the employee.
(4) Where an employee of a company is taken into the employment of another
company which, at the time when he is taken into its employment, is an associated
company of the first-mentioned company, his period of employment at that time
shall count as a period of employment with the associated company, and the change
of employer shall not break the continuity of the period of employment.
(5) For the purposes of this section 2 companies shall be taken to be
associated companies if one is a subsidiary of the other, or both are subsidiaries of
a third company, and 'associated company' shall be construed accordingly.
(6) In this section 'company' and 'subsidiary' have the meanings
respectively assigned thereto by section 2 of the Companies Ordinance (Cap. 32).
(Amended, 76 of 1985, s. 7)
[cf. U.K. 1965 c. 62, s. 481
Implied or constructive termination of contract
31L. (1) Where in accordance with any enactment or rule of law
(a) any act on the part of the employer; or
(b)any event affecting an employer (including, in the case of an individual,
his death),
operates so as to terminate a contract under which an employee is employed by him,
that act or event shall for the purposes of this Part be treated as a termination of the
contract by the employer, if apart from this subsection it would not constitute a
termination of the contract by him.
(2) Where subsection (1) applies, and the employee's contract of employment
is not renewed, and he is not re-engaged under a new contract, as mentioned in
section 3 1 D(2), he shall for the purposes of this Part be taken to be dismissed by
reason of redundancy if the circumstances in which the contract is not renewed and
he is not re-engaged as mentioned in section 31D(2) are wholly or mainly
attributable to one or other of the facts specified in section 3 113(2).
(3) For the purposes of subsection (2), section 31B(2)(a), in so far as it relates
to the employer ceasing or intending to cease to carry on the business, shall be
construed as if the reference to the employer included a reference to any person to
whom, in consequence of the act or event in question, power to dispose of the
business has passed.
(4) In this section any reference to section 31B(2) includes a reference to
section 3 113(2) as applied by section 3 1 J(2).
[cf. U.K. 1965 c. 62, s. 221
Death of employer or of employee
31M. Part 1 of the Third Schedule shall have effect in relation to the death of an
employer; and Part 11 of that Schedule shall have effect in relation to the death of
an employee.
[cf. U.K. 1965 c. 62, s. 23]
Claims for severance payments
31N. Notwithstanding anything in this Part, an employee shall not be entitled
to a severance payment unless, before the end of the period of 3 months beginning
with the relevant date, or within such extended period as the
Commissioner may agree- (Amended, 19 of 1984, s. 3)
(a) the payment has been agreed and paid;
(b)the employee has made a claim for payment by notice in writing given to
the employer; or
(c)a question as to the right of the employee to the payment, or as to the
amount of the payment, has been made the subject of a claim filed with the
Registrar of the Labour Tribunal in accordance with Part IV of the Labour
Tribunal Ordinance (Cap. 25).
[cf. U.K. 1965 c. 62, s. 211
Making of severance payment
310. (1) Where an employee is entitled to a severance payment under this Part,
his employer shall make the severance payment to him not later than 2 months from
the receipt of a notice in accordance with paragraph (b) of section 31N unless either
the employer or the employee has, before the expiration of that period, made the
severance payment the subject of a claim filed with the Registrar of the Labour
Tribunal in accordance with paragraph (c) of section 3 IN.
(2) A severance payment shall be made in legal tender except that, where the
employee so consents, payment may be made
(a) by cheque, money order or postal order.,
(b)into an account in his name with any bank licensed under the Banking
Ordinance (Cap. 155); or
(c) to his duly appointed agent.
(3) Any employer who without reasonable excuse fails to comply with
subsection (1) or (2) shall be guilty of an offence and shall be liable on conviction to
a fine of $10,000. (Amended, 24 of 1988, s. 2)
Written particulars of severance payment
31P. (1) On making any severance payment, otherwise than in pursuance of a
decision of the Labour Tribunal which specifies the amount of the payment to be
made, the employer shall give to the employee a written statement indicating how
the amount of the payment has been calculated.
(2) Any employer who-
(a) without reasonable excuse fails to comply with subsection (1); or
(b)in a statement under that subsection includes anything which to his
knowledge is false in a material particular, or recklessly includes anything
which is false in a material particular,
shall be guilty of an offence and shall be liable on conviction to a fine of $5,000.
(Amended, 24 of 1988, s. 2)
(3) Without prejudice to any proceedings for an offence under subsection
(2)(a), if an employer fails to comply with the requirements of subsection (1), the
employee may by notice in writing to the employer require the employer to give
to the employee a written statement complying with those requirements within such
period (not being less than 1 week beginning with the day on which the notice was
given) as may be specified in the notice.
(4) If, without reasonable excuse, an employer fails to comply with a notice
under subsection (3) he shall be guilty of an offence and shall be liable
(a) in the case of a first conviction to a fine of $5,000; or
(b)in the case of a second or subsequent conviction, to a fine of $10,000.
(Amended, 24 of 1988, s. 2)
[cf. U.K. 1965 c. 62,
s. 18
Presumption
31Q. For the purposes of this Part an employee who has been dismissed by his
employer shall, unless the contrary is proved, be presumed to have been so
dismissed by reason of redundancy.
[cf. U.K. 1965 c. 62, s. 9
(2)
(Part VA added, 67 of 1974, s.
5)
PART VB
LONG SERVICE
PAYMENTS
General provisions as to employee's right to long service
payment
31R. (1) Where an employee who has been employed under a continuous contract
(a) for not less than the number of years of service at the relevant date,
specified in column 2 of the table in the Fifth Schedule opposite his age at
that date specified in column 1 of that table
(i) is dismissed and his employer is not liable to pay him a severance
payment by reason thereof; or
(ii) terminates his contract in the circumstances specified in section
10(aa); or
(b)terminates his contract and, at the relevant date, he is not less than 65
years of age and has been employed under that contract for not less than
10 years,
the employer shall, subject to this Part and Part VC, pay to the employee a long
service payment calculated in accordance with section 3 IV.
(Replaced, 52 of 1988, s.
6)
Death of employee
31RA. (1) Where an employee dies and he had been at the time of his death
employed under a continuous contract for not less than the number of years of
service on the date of his death, specified in column 2 of the table in the Fifth
Schedule, opposite his age at that date specified in column 1 of that table,
the employer shall, subject to this Part and Part VC, pay a long service payment
calculated in accordance with section 3 IV to-
(a) the spouse of the employee, if the employee leaves a spouse; or
(b)the issue of the employee, if the employee leaves any issue but no
spouse; or
(c)a parent of the employee, if the employee leaves neither a spouse nor
issue; or
(d)the personal representative of the employee, if the employee does not
leave any spouse, issue or parent.
(2) A person referred to in paragraph (a), (b), (c) or (d) of subsection (1)
shall not be entitled to such payment unless-
(a)that person serves an application in the form specified by the Commis-
sioner under section 49 on the relevant employer within the period of
30 days beginning on the day next following the date of death of the
employee or within such extended period as the Commissioner may
allow; and
(b)the applicant's relationship (being a relationship mentioned in para-
graph (a), (b), (c) or (d) of subsection (1)) to the deceased employee
is supported by documentary evidence.
(3) The Commissioner may extend the time for serving an application
under subsection (2) although the application for extension is not made until
after the expiration of the period of 30 days after the date of death of an
employee.
(4) Where a person referred to in paragraph (a) or (b) of subsection (1) is a
minor, the application under subsection (2) shall be made by the guardian of
that person.
(5) Where a person is entitled to a long service payment under this section,
the employer shall pay such person the long service payment to which he is
entitled-
(a)where the person so entitled is a spouse, not later than 7 days after the
receipt of the application; or
(b)where the person so entitled is not a spouse, not earlier than the day
(hereinafter in this paragraph called 'the said day') next following the
date of expiration of the period which, as regards the particular case,
was the period during which an application under subsection (2)(a)
could be served but not later than 7 days after the said day.
(6) An employer who without reasonable excuse fails to pay a long service
payment on or before the latest date for payment as required by subsection (5)
shall be guilty of an offence and shall be liable on conviction to a fine of 520,000.
(7) Where 2 or more persons are entitled to a long service payment under
this section, the long service payment shall be divided equally between such
persons.
(8) A long service payment is payable in accordance with this Part by an
employer on the death of an employee from whatever cause and is payable in
addition to any compensation payable by the employer under the Employees'
Compensation Ordinance (Cap. 282).
(Added, 52 of 1988, s. 6)
Application to domestic servants
31RB. This Part (except section 31Z) shall apply to an employee who is
employed as a domestic servant in, or in connection with, a private household as if
the household were a business and the maintenance of the household were the
carrying on of that business by the employer.
(Added, 52 of 1988, s. 6)
General exclusions from right to long service payment by
reason of dismissal
31S. (1) Except as provided by section 31X, an employee shall not be entitled to
a long service payment by reason of dismissal where his employer, being so entitled
by reason of the employee's conduct, terminates his contract of employment without
notice or payment in lieu in accordance with section 9.
(2) An employee shall not be entitled to a long service payment by reason of
dismissal where he leaves the service of his employer--
(a)before the expiration of notice given to him by the employer in accordance
with section 6 without the prior consent of the employer; or
(b)without having made a payment in lieu to the employer in accordance with
section 7.
Dismissal by employer
31T. (1) For the purposes of and subject to this Part, an employee shall be
taken to be dismissed by his employer if, but only if
(a)the contract under which he is employed is terminated by the employer
with or without notice or payment in lieu thereof other than in accordance
with section 9;
(b)where under that contract he is employed for a fixed term, that term expires
without being renewed under the same contract; or
(c)the employee, being so entitled by reason of the employer's conduct,
terminates that contract without notice or payment in lieu in accordance
with section 10.
(2) An employee shall not be taken for the purposes of this Part to be
dismissed by his employer if
(a)his contract of employment is renewed, or he is re-engaged by the same
employer under a new contract of employment; and
(b)the renewal or re-engagement takes effect immediately on the ending of
his employment under the previous contract.
(3) For the purposes of the application of subsection (2) to a contract under
which the employment ends on a rest day or holiday, the renewal or re-engagement
shall be treated as taking effect immediately on the ending of the employment under
the previous contract if it takes effect on or before the next day after that rest day or
holiday.
Excluded classes of employees
31U. Sections 31R and 31RA shall not apply- (Amended, 52 of 1988, s. 7)
(a) where the employer is the husband or wife of the employee;
(b) to any outworker;
(c)to any person, employed by a government other than the Hong Kong
Government, who is a subject or citizen of the state under whose
government he is employed; or
(d)without prejudice to paragraph (a), to any person in respect of
employment as a domestic servant in, or in connection with, a private
household, where the employer is the father, mother, grandfather,
grandmother, stepfather, stepmother, son, daughter, grandson,
granddaughter, stepson, stepdaughter, brother, sister, half-brother or
halfsister of the employee.
Amount of long service payment
31V. (1) Subject to this Part, the amount of a long service payment to which an
employee aged not less than 40 years at the relevant date is entitled in any case shall
be calculated by allowing--
(a)in the case of a monthly rated employee, two-thirds of his last full month's
wages; and
(b)in any other case, 18 days wages based on any 18 days chosen by the
employee and occurring during his last 30 normal working days,
for every year (and pro rata as respects an incomplete year) of employment under
a continuous contract by his employer subject in all cases to a maximum payment
not exceeding the total amount of wages earned during the period of 12 months
immediately preceding the relevant date;
Provided that the employee may elect to have his wages averaged over the
period of 12 months immediately preceding the relevant date.
(2) Subject to this Part, the amount of a long service payment to which an
employee, other than an employee referred to in subsection (1), is entitled is
(a)in the case of an employee aged at the relevant date 36 years or more but
less than 40 years, 75% of the long service payment to which he would
have been entitled if subsection (1) applied; and
(b)in the case of an employee aged at the relevant date less than 36 years,
50% of the long service payment to which he would have been entitled if
subsection (1) applied.
(3) Subject to this section and section on 31W, where an employee, who is
employed under a continuous contract otherwise than by way of manual labour, is
dismissed and--
(a) at the time of such dismissal earned wages exceeding $11,500 per
month but within a year prior to dismissal earned wages for any period not
exceeding $11,500 per month; and
(b)the employee would have been entitled to a long service payment had he
earned wages not exceeding $11,500 per month at the time of such dismissal,
he shall be entitled to a long service payment in respect of the whole of the
period of employment during which his wages did not exceed $11,500 per
month. (Added, 52 of 1988, s. 8)
Calculation of period of employment
31W. For the purposes of this Part, a reference to the period of employmerit
under a continuous contract shall not include a reference to any such employment
occurring more than
(a) 6 years prior to 1 January 1986, where the relevant date occurs in 1986;
(b) 7 years prior to 1 January 1986, where the relevant date occurs in 1987;
(c) 8 years prior to 1 January 1986, where the relevant date occurs in 1988;
and
(d)9 years prior to 1 January 1986, where the relevant date occurs in 1989 or
any year thereafter.
Special provision as to termination of contract in case of
strike
31X. Where an employee, who has been given notice by his employer to
terminate his contract of employment, takes part in a strike before the expiry of that
notice in such circumstances that the employer is entitled by reason of his taking
part in the strike to treat the contract as terminable without notice, and the employer
for that reason terminates the contract without notice or payment in lieu in
accordance with section 9. section 31S shall not apply to that termination of the
contract.
Set-of of gratuity or provident fund payment against long
service payment
31Y. (1) Subject to subsection (2), where an employee is entitled
(a) by virtue of this Part, to a long service payment; and
(b) by virtue of-
(i) the terms of his contract of employment, to any gratuity based
upon length of service; or
(ii) a provident fund scheme or arrangement, to any payment
thereunder,
the long service payment shall be reduced by the total sum of the amounts of all
the gratuities or provident fund payments, as the case may be, paid to
that employee in respect of any or all of the years of service in respect of which that
long service payment is payable.
(2) For the the purposes of subsection (1), any reference therein to a pro-
vident fund payment shall not include that part, if any, of the payment which
represents a return of an employee's own contributions, including any sum payable
in respect of interest thereon. (Amended, 52 of 1988, s. 9)
Gratuities or provident fund payment on death of employee
31YA. (1) Subject to subsection (2), where an employee dies and
(a)by virtue of this Part, a person is entitled to a long service payment; and
(b) by virtue of-
(i) the terms of the employee's contract of employment, a gratuity
based upon length of service; or
(ii) a provident fund scheme or arrangement, any payment there-
under,
is payable upon termination of employment,
the total sum of the amounts of all the gratuities or provident fund payment, as the case may be, in relation to the
years of service in respect of which that long service payment is payable may be
reduced by the total amount of the long service payment.
(2)For the purposes of subsection (1), any reference therein to a provident
fund payment shall not include that part, if any, of the payment which
represents a return of an employee's own contributions, including any sum payable
in respect of interest thereon.
(Added, 52 of 1988, s. 10)
Change of ownership of business
31Z. (1) This section shall have effect where
(a)a change occurs (whether by virtue of a sale or other disposition or by
operation of law) in the ownership of a business for the purposes of which
a person is employed, or of a part of such a business; and
(b)in connection with that change the person by whom the employee is
employed immediately before the change occurs (in this section referred to
as 'the previous owner') terminates the employee's contract in accordance
with section 6 or 7.
(2) If, by agreement with the employee, the person who immediately after the
change occurs is the owner of the business or of the part of the business in
question, as the case may be, (in this section referred to as 'the new owner') renews
the employee's contract of employment (with the substitution of the new owner for
the previous owner) or re-engages him under a new contract of employment, section
3 1 T(2) shall have effect as if the renewal or re-engagement had been a renewal or re-
engagement by the previous owner (without any substitution of the new owner for
the previous owner).
(3) This section shall have effect (subject to the necessary modifications) in
relation to a case where
(a)the person by whom a business, or part of a business, is owned
immediately before a change is one of the persons by whom (whether as
partners, trustees or otherwise) it is owned immediately after the
change;or
(b)the persons by whom a business, or part of a business, is owned
immediately before a change (whether as partners, trustees or otherwise)
include the person or one or more of the persons by whom it is owned
immediately after the change,
as this section has effect where the previous owner and the new owner are wholly
different persons.
(4) Nothing in this section shall be construed as requiring any variation of a
contract of employment by agreement between the parties to be treated as
constituting a termination of the contract.
Associated companies
31ZA. (1) Where the employer is a company, any reference in this Part to re-
engagement by the employer shall be construed as a reference to reengagement by
that company or by any associated company.
(2) Subsection (1) shall not affect the operation of section 31Z in a case where
the previous owner and the new owner (as defined by that section) are associated
companies; and where that section applies, subsection (1) shall not apply.
(3) Where an employee of a company is taken into the employment of another
company which, at the time when he is taken into its employment, is an associated
company of the first-mentioned company, his period of employment at that time
shall count as a period of employment with the associated company, and the change
of employer shall not break the continuity of the period of employment.
(4) For the purposes of this section, 2 companies shall be taken to be
associated companies if one is a subsidiary of the other, or both are subsidiaries of
a third company, and 'associated company' shall be construed accordingly.
(5) In this section 'company' and 'subsidiary' have the meanings
respectively assigned thereto by section 2 of the Companies Ordinance (Cap. 32).
Implied or constructive termination of contract
31ZB Where in accordance with any enactment or rule of law
(a) any act on the part of the employer; or
(b)any event affecting an employer (including, in the case of an individual,
his death),
operates so as to terminate a contract under which an employee is employed by
him, that act or event shall for the purposes of this Part be treated as a termination
of the contract by the employer, if apart from this section it would not constitute a
termination of the contract by him.
Death of employer
31ZC. The Sixth Schedule shall have effect in relation to the death of an
employer.
(Replaced, 52 of 1988, s. 11)
Making of long service payment
31ZD. (1) A long service payment shall be made in legal tender except that,
where the person entitled to the payment so consents, payment may be made-
(Amended, 52 of 1988, s. 12)
(a) by cheque, money order or postal order;
(b)into an account in his name with any bank licensed under the Banking
Ordinance (Cap. 155); or
(c) to his duly appointed agent.
(2) Any employer who without reasonable excuse fails to comply with
subsection (1) commits an offence and is liable to a fine of $10,000. (Amended, 24 of
1988, s. 2)
Written particulars of long service payment
31ZE. (1) On making any long service payment, the employer shall give to the
person entitled to the payment a written statement indicating how the amount of the
payment has been calculated. (Amended, 52 of 1988, s. 13)
(2) Any employer who-
(a) without reasonable excuse fails to comply with subsection (1); or
(b)in a statement under that subsection includes anything which to his
knowledge is false in a material particular, or recklessly includes anything
which is false in a material particular,
commits an offence and is liable to a fine of $5,000. (Amended, 24 of 1988,s.2)
(3) Without prejudice to any proceedings for an offence under subsection
(2)(a), if an employer fails to comply with the requirements of subsection (1), the
person entitled to the payment may by notice in writing to the employer require the
employer to give to the person entitled to the payment a written statement
complying with those requirements within such period (not being less than 1 week
beginning with the day on which the notice was given) as may be specified in the
notice. (Amended, 52 of 1988, s, 13)
(4) If, without reasonable excuse, an employer fails to comply with a notice
under subsection (3) he commits an offence and is liable
(a) in the case of a first conviction, to a fine of $5,000; or
(b) in the case of a second or subsequent conviction, to a fine of
$10,000. (Amended, 24 of 1988, s. 2)
(Part VB added, 76 of 1985, s. 8)
PART VC
SUPPLEMENTARY PROVISIONS TO PARTS VA AND VB
Re-employment after retirement at a specified age
31ZF. (1) Subject to subsection (2), where a continuous contract of
employment specifies an age of retirement and
(a) the employee retires at that age; and
(b) the employee has been employed under that contract for not less than
the number of years of service, ending at the relevant date, specified in
column 2 of the table in the Fifth Schedule opposite his age at the
relevant date specified in column 1 of that table; and
(c) he receives in relation to the years of service in respect of which long
service payment would have been payable, had the employee been
dismissed at the relevant date,-
(i) by virtue of the terms of his contract of employment, any
gratuity based upon length of service; or
(ii) by virtue of a provident fund scheme or arragnement, any
payment thereunder; and
(d)the total sum he receives under paragraph (c) is not less than the long
service payment to which he would have been entitled had he been
dismissed at the relevant date; and
(e)immediately after his retirement, the employee is re-employed by the person
by whom he was employed immediately before his retirement,
then for the purposes of Parts VA and VB of this Ordinance, the employment after
retirement shall be regarded as a fresh employment.
(2) For the purposes of subsection (1), any reference therein to a pro-
vident fund payment shall not include that part, if any, of the payment which
represents a return of an employee's own contributions, including any sum
payable in respect of interest thereon.
(Part VC added, 52 of 1988, s. 14)
PART VI
DEDUCTIONS FROM
WAGES
Restriction on deductions from wages
32. (1) No deductions shall be made by an employer from the wages of his
employee or from any other sum due to the employee otherwise than in accordance
with this Ordinance.
(2) The following deductions may be made by an employer from the wages of
his employee
(a) deductions for absence from work:
Provided that-
(i) in the case of a contract of employment under which wages are
calculated on a basis of time, no such deduction shall exceed a sum
proportionate to the period of time during which the employee was absent
from work;
(ii) no such deduction shall be made for the purpose of defraying or
partly defraying the cost of holiday pay or sickness allowance which the
employer has paid or may be or may become liable to pay to the employee;
(Replaced, 39 of 1973, s. 4)
(b)deductions for damage to or loss of goods, equipment or property
belonging to or in the possession or control of the employer or expressly
entrusted to an employee for custody, or for loss of money for which an
employee is required to account, where such damage or loss is directly
attributable to his neglect or default:
Provided that-
(i) the total amount recoverable by deduction in any one case shall not
exceed the equivalent in value of the damage or loss suffered by the
employer or $300, whichever is the less; and
(ii) the total of such deductions in any one wage period shall not exceed
one quarter of the wages payable to the employee in respect of that wage
period;
(c)deductions in respect of meals supplied by the employer at the request of
the employee not exceeding the cost to the employer of such meals
including expenses of production and service;
(d)deduction for accommodation provided by the employer for the employee
or his family made in respect of the period such accommodation has been
in the occupation of the employee or his family;
(e)deductions for the recovery of any advance or over-payment of wages
made by the employer to the employee:
Provided that-
(i) except with the approval in writing of the Commissioner, no such
deductions shall be made by way of discount, interest or any similar
charge in consideration of such advance or over-Payment; and
(ii) the total of such deductions in any one wage period shall not exceed
one quarter of the wages payable to the employee in respect of that wage
period;
(f)deductions, with the written consent of an employee, for the recovery of
any loan made by the employer to the employee;
(g)deductions made at the request in writing of the employee in respect of
contributions to be paid by him through the employer for the purpose
of any medical benefit scheme, superannuation scheme, provident fund or thrift scheme
lawfully established for the benefit of the employee or his dependants;
(h)deductions which are required or authorized under any enactment to be
made from the wages of an employee;
(i)other deductions made at the request in writing of the employee and with
the approval of the Commissioner, which may be signified in respect of
any particular case in writing or in general by notice in the Gazette.
(3) Except with the approval in writing of the Commissioner, the total of all
deductions, excluding deductions in respect of absence from work, made under this
section from the wages of an employee in any one wage period shall not exceed one
half of the wages payable to the employee in respect of the wage period.
(4) Nothing in this section shall be construed as preventing an employer from
paying to an employee at any time before the due date the amount of wages and
other remuneration proportionate to work done and adjusting any amount so paid
against the total amount payable at the end of the wage period.
PART VII
SICKNESS ALLOWANCE
Sickness allowance
33. (1) An employee who has been employed by his employer under a
continuous contract for a period of 1 month or more immediately preceding a
sickness day shall be paid by his employer sickness allowance in accordance with
this section and section 35. (Amended, 1 of 1977, s. 2 and 48 of 1984, s.14)
(2) Subject to subsection (2A), an entitlement to sickness allowance shall
accrue at the rate of
(a)2 paid sickness days for each completed month of the employee's
employment under the continuous contract with his employer during the
first 12 months of such employment; and
(b) 4 paid sickness days for each such month thereafter,
and may be accumulated from time to time up to a maximum of 120 paid sickness
days. (Replaced, 57 of 1983, s. 5)
(2A) In the case of an employee who has been employed by his employer
under a continuous contract for a period of 1 month or more immediately preceding
the commencement* of the Employment (Amendment) Ordinance 1983 (57 of 1983),
the employee's entitlement to sickness allowance shall, with effect from and without
prejudice to the entitlement to sickness allowance accrued at such commencement,
accrue at the rate prescribed by subsection (2) as amended by that Ordinance, and
his employment for part of a month (if any) at such commencement shall be taken
into account in calculating his entitlement to sickness allowance under and at the
rate prescribed by that subsection. (Added, 57 of 1983, s. 5)
*1.11.1983 -L.N. 349183.
(3) Subject to subsection (3C), an employee who takes less than 4 consecutive
days as sickness days shall not be entitled to be paid sickness allowance in respect
thereof. (Amended, 22 of 1981, s. 7)
(3A) Where a female employee who is pregnant or who has given birth to a
child and who is required to attend a medical examination in relation to her
pregnancy or post confinement medical treatment, any day on which she is absent
from work for such examination or treatment shall be a sickness day. (Added, 22 of
1981, s. 7)
(3B) Where a female employee suffers a miscarriage, any day on which she is
absent from work by reason of such miscarriage shall be a sickness day. (Added, 22
of 1981, s. 7)
(3C) A female employee who has an entitlement to a sickness allowance under
this section shall, notwithstanding subsection (3), be paid sickness allowance for
every sickness day under subsection (3A) or (3B) and subsections (4), (4A), (5),
(5A) and (7) shall apply to any such sickness day and sickness allowance in respect
thereof. (Added, 22 of 1981, s. 7. Amended, 57 of 1983, s.5)
(4) Subject to subsections (5) and (5A), an employee who takes 4 or more
consecutive days as sickness days shall be entitled to be paid sickness allowance
for the total number of sickness days taken by him, but not exceeding the number of
paid sickness days accumulated by him, under subsections (2) and (M), immediately
before the commencement of the sickness days taken. (Replaced, 57 of 1983, s. 5)
(4A) The number of sickness days in respect of which an employee has been
paid sickness allowance under subsection (4) shall be deducted in accordance with
section 37(1B) from the total number of paid sickness days accumulated by him.
(Added, 57 of 1983, s. 5)
4B No employer shall terminate a contract of employment of an employee under
section 6 or 7 on any sickness day taken by the employee in respect of which
sickness allowance is payable under this section unless he pays to the employee
(a)the sum which would have been payable if the contract had been
terminated by the employer under section 7; and
(b)a further sum equivalent to the amount of wages which would have
accrued to the employee during a period of 7 days. (Added, 57 of
1983,s.5)
(4C) Where an employer terminates a contract of employment of an employee
on any sickness day taken by the employee, the employer shall, notwithstanding the
termination of the contract of employment, pay to the employee sickness allowance
for the total number of sickness days in respect of which the employee would have
been entitled to be paid sickness allowance under subsection (4), and subsections
(5), (5A) and (7) shall apply to any such sickness day and sickness allowance in
respect thereof as if the contract of employment had not been terminated. (Added,
57 of 1983, s. 5)
(5) An employer shall not be liable to pay sickness allowance to an employee
in respect of any sickness day
(a)subject to subsection (5A), unless such day is a day specified in the
appropriate medical certificate as a day on which, in the opinion of the
medical practitioner by whom the certificate is issued, the employee was,
is or will be, as the case may be, unfit for work on account of sickness or
injury; (Amended, 57 of 1983, s. 5)
(b)if, where the employer is operating a recognized scheme of medical
treatment, the employee, at any time during the sickness or injury, unless
he is a patient in a hospital, refuses without reasonable excuse to submit
himself for treatment by the medical practitioner employed by the
employer for the purposes of the scheme; (Amended, 57 of 1983,s.5)
(c)if, where the employer is operating a recognized scheme of medical
treatment, the employee, having submitted himself for treatment by the
medical practitioner employed by the employer for the purposes of the
scheme or being a patient in a hospital, at any time during the sickness or
injury, without reasonable excuse, disregards the advice of such medical
practitioner or the advice of the medical practitioner by whom he is being
attended in the hospital; (Amended, 57 of 1983, s. 5)
(d)if the unfitness for work of the employee is caused by his serious and
wilful misconduct;
(e)if the unfitness for work of the employee is on account of an injury or
occupational disease in respect of which compensation is payable in
accordance with the Employees' Compensation Ordinance (Cap. 282);
in respect of which the employee has received holiday pay.
(5A) Where an employee takes paid sickness days entered in category 2 of the
record kept in respect of him under section 37(1A), he shall, if so required by his
employer, produce to the employer, in respect of each such sickness day, a medical
certificate that is issued by a medical practitioner attending the employee as an out-
patient or in-patient in a hospital. (Added, 57 of 1983, s.5)
(6) For the purposes of this section-
(a)the expression 'hospital' means a hospital or specialist clinic maintained
by the Crown or a hospital in respect of which a person is registered under
the Hospitals, Nursing Homes and Maternity Homes Registration
Ordinance (Cap. 165);
(b)in subsection (5)(a), the expression 'appropriate medical certificate'
means
(i) where, on the day on which the certificate is issued, the employer is
operating a recognized scheme of medical treatment, a certificate issued
by the medical practitioner employed by the employer for the purposes of
the scheme;
(ii) where, on the day on which the certificate is issued, the employee is
a patient in a hospital, a certificate issued by the medical practitioner
attending the employee in the hospital;
(iii) in any other cases, a certificate issued by any medical practi
tioner.(Replaced, 57 of 1983, s. 5)
(7) Every medical certificate shall, in addition to specifying the number of days
on which, in the opinion of the medical practitioner by whom it is issued, the
employee was, is or will be, as the case may be, unfit for work, specify the nature of
the sickness or injury on account of which, in the opinion of the medical practitioner,
the employee was, is or will be, as the case may be, unfit for work and, in the case of
a medical certificate produced by an employee for the purposes of subsection (5A),
the medical certificate shall, if so required by his employer, contain or be
accompanied by a brief record of the investigation carried out and the treatment
prescribed by the medical practitioner. (Amended, 57 of 1983, s. 5)
Recognized scheme of medical treatment
34. (1) The Director may recognize for the purposes of this Ordinance a scheme
of medical treatment operated by an employer, if he is satisfied that each employee,
who is qualified to be paid sickness allowance by the employer by whom the
scheme is operated, is provided, without expense to the employee, by a medical
practitioner with such medical treatment as an out-patient as the Director considers
reasonable.
(2) The Director may, having given to the employer by whom the scheme is
operated not less than 1 month's notice of his intention so to do, withdraw his
recognition of any scheme of medical treatment.
(3) Whenever the Director has recognized, or has withdrawn his recognition of,
any scheme of medical treatment, he shall publish a notice thereof in the Gazette.
Rate of sickness allowance
35. (1) Subject to subsection (3), the daily rate of sickness allowance shall be a
sum equivalent to two-thirds of the wages which the employee would have earned if
he had worked on the sickness day. (Amended, 48 of 1984, s. 15)
(2) Notwithstanding subsection (1) and subject to subsection (3), where an
employee is employed on piece rates or where the daily wages of an employee vary
from day to day, the sickness allowance shall be a sum equivalent to two-thirds of
the average daily wage earned by the employee, and for the purposes of this
subsection the average daily wage shall be the average of the daily wages earned
by the employee on each day on which he worked during every complete wage
period, comprising not less than 28 days and not more than 31 days, immediately
preceding or expiring on the first sickness day. (Replaced, 48 of 1984, s. 15)
(3) Where a contract of employment of an employee is terminated, sickness
allowance payable under section 33(4C) shall be calculated in accordance with
subsection (1) or (2) whichever is applicable to the employee at the time his contract
of employment is terminated. (Added, 48 of 1984, s. 15)
(Amended, 1 of 1977, s. 3)
Time for payment of sickness allowance
36. (1) Except in the case of an employee who is normally paid his wages daily,
sickness allowance shall be paid to the employee or his duly appointed agent in the
manner and at the place specified in section 26 not later than the day on which the
employee is next paid his wages.
(2) In the case of an employee who is normally paid his wages daily, sickness
allowance shall be paid to him or his duly appointed agent in the manner and at the
place specified in section 26 at least once in every 7 days.
(3) Where a contract of employment of an employee is terminated, sickness
allowance payable under section 33(4Q shall be paid to that employee in accordance
with subsection (1) or (2) whichever is applicable to the employee as if the contract
of employment had not been terminated. (Added, 48 of 1984,s.16)
Employer to keep record of sickness days
37. (1) Every employer shall keep a record-
(a)of the date of commencement and termination of the employment of each
employee;
(b)in accordance with subsection (1A), of all paid sickness days accumulated
by each employee under section 33;
(c)of all paid sickness days taken by each employee in respect of which
sickness allowance is payable under section 33, and such sickness days
shall be deducted in accordance with subsection (111); and
(d)of all sickness allowance paid to each employee and the sickness days in
respect of which the sickness allowance was paid. (Replaced, 57 of 1983,s.6)
(1A) A record kept for the purposes of subsection (1)(b) shall contain the
following heads and details--
Category 1:in which shall be entered the number of paid sickness days
accumulated by an employee
(a) under section 33(2A); and
(b) in respect of each month under section 33(2),
but so however that the total number of paid sickness days in
this category does not at the time of entry exceed 36 days; and
Category 2:in which shall be entered every paid sickness day in excess of 36
days which cannot be entered in category 1, but so however
that the total number of paid sickness days in this category does
not at the time of entry exceed 84 days,
and references in this section to category 1 and category 2 shall be construed as
references to category 1 and category 2 respectively in this subsection. (Added, 57 of
1983, s. 6)
(IB) The number of paid sickness days taken consecutively by an employee
shall be deducted from the total number of paid sickness days in category 1
accumulated by him immediately before the commencement of those sickness days
and where the number of paid sickness days taken exceeds the total number of paid
sickness days in that category, the excess paid sickness days shall be deducted
from the total number of paid sickness days in category 2 accumulated by him
immediately before such commencement. (Added, 57 of 1983,s.6)
(2) If an employer maintains a record under subsection (1)--
(a)an employee who returns to work after a sickness day shall, as soon as is
practicable but not later than 7 days after his return to work, sign the entry
in the record specifying the days on which he has been absent;
(b)an employee shall be entitled to inspect that part of the record which
relates to him at any reasonable time during working hours and, where an
employee has ceased to be employed by his employer, he may inspect that
part of the record which relates to him at any reasonable time during
working hours in the period of 2 months next following the date on which
he ceased to be employed.
(3) If an employer fails to maintain the record under subsection (1) in respect of
any employee employed by him, or if the record is lost or destroyed, the employee
shall, notwithstanding any sickness allowance paid to him by his employer under
section 33, be entitled to paid sickness days for each completed month of his
employment in accordance with section 33. (Amended, 57 of 1983,s.6)
Records to he produced to Commissioner
38. For the purposes of section 37, the Commissioner may, either by notice in
writing served by registered post or by notice in the Gazette, require any employer
or class of employers to send to him all or any records of sickness days in respect of
any period not exceeding 2 years preceding the date of the notice.
(Part VII added, 39 of 1973, s. 5)
PART VIII
HOLIDAYS WITH PAY
Grant of holidays
39. (1) Subject to subsections (2) and (3), an employee shall be granted a
holiday by his employer on each of the following days
(a)Lunar New Year's Day or, if Lunar New Year's Day or the second or third
day of Lunar New Year falls on a Sunday, then the day immediately
preceding Lunar New Year's Day; (Amended, 27 of 1982,s.2)
(b) the second day of Lunar New Year;
(c) the third day of Lunar New Year;
(d) Ching Ming Festival;
(e) Tuen Ng (*IF, Dragon Boat) Festival;
(f)the day following the Chinese Mid-Autumn Festival or, if that day falls
on a Sunday, the Chinese Mid-Autumn Festival
Day;(Amended, 27 of 1982, s. 2);
(g) the Chung Yeung Festival;
(h) the Chinese Winter Solstice Festival or Christmas Day, at
the option of the employer; and
(i) the first day of January. (Replaced, 53 of 1976, s. 2)
(2) An employer may, instead of granting an employee a holiday on a statutory
holiday, grant the employee a holiday on another day (which is not a statutory
holiday or a substituted holiday) within the period of 60 days immediately preceding
or next following the statutory holiday, if the employer has notified the employee,
either orally or in writing or by notice posted in a conspicuous place in the place of
employment, of the day on which he will be granted the holiday
(a)where the holiday is to be taken on a day within the period of 60 days
immediately preceding the statutory holiday, not less than 48 hours before
that day; or
(b)where the holiday is to be taken on a day within the period of 60 days next
following the statutory holiday, not less than 48 hours before the
statutory holiday.
(3) Subject to subsection (4), an employer and his employee may agree that
another day shall be substituted for a statutory holiday or an alternative holiday or,
in the case of a female employee or an employee who is a young person, a day on
which, by virtue of subsection (4), the employee is required to be granted a holiday,
if such substituted holiday falls within the period of 30 days of such statutory
holiday, alternative holiday or holiday under subsection (4). (Amended, 27 of 1982,
s. 2)
(4) Where-
(a)a statutory holiday or an alternative or a substituted holiday falls on a rest
day, or in the case of a female employee or an employee who is a young
person, on a day on which, by virtue of the Women and Young Persons
(Industry) Regulations (Cap. 57, sub. leg.), the employment of the
employee in an industrial undertaking is not allowed, the employee shall
be granted a holiday on the next day thereafter which is not a statutory
holiday or an alternative holiday or a substituted holiday or a rest day; or
(b)a statutory holiday falls on the Monday immediately following the
birthday of Her Majesty The Queen or on the last Monday in August an
employee shall be granted a holiday on the next day thereafter. (Replaced,
27 of 1982, s. 2. Amended, 33 of 1984, s. 2)
(5) In addition to the holidays granted by subsection (1) an employee shall
each year be granted 2 holidays by his employer on days to be fixed by the
employer not being holidays under subsection (1), alternative holidays or
substituted holidays. (Replaced, 27 of 1982, s. 2)
(6) The days fixed as holidays under subsection (5) shall be notified by an
employer to each of his employees by notice posted in a conspicuous place in the
place of employment not later than the end of the year next preceding the year in
which the holidays under subsection (5) are granted. (Amended, 27 of 1982, s. 2)
(7) An employer shall cause any notice posted under subsection (6) to remain
so posted until the end of the year next following the year in which it was posted.
(8) If an employer does not fix one or both of the holidays under subsection (5)
or notify a day or days so fixed in the manner required by subsection (6), such day
or days shall, at the request of an employee, be granted as an additional day or
additional days of annual leave with pay. (Replaced, 27 of 1982, s. 2)
(9) if an employee does not make a request under subsection (8) and an
employer does not fix
(a)either of the 2 holidays under subsection (5) or notify a day so fixed in the
manner required by subsection (6), every employee shall be granted a
holiday either on the Monday immediately following the birthday of Her
Majesty The Queen or on the last Monday in August, whichever the
employer may determine; or
(b)both the 2 days to be holidays under subsection (5) or notify the days so
fixed in the manner required by subsection (6), every employee shall be
granted holidays on the Monday immediately following the birthday of Her
Majesty The Queen and on the last Monday in August. (Added, 27 of 1982,
s. 2. Amended, 33 of 1984, s. 2)
(Amended, 53 of 1976, s. 2)
Payment of holiday pay
40. Subject to section 12(11), an employee who has been employed by his
employer under a continuous contract for a period of 3 months immediately
preceding a statutory holiday shall, not later than the day on which the employee is
next paid his wages after that holiday, be paid by his employer holiday pay at the
rate specified in section 41, whether the employee takes a holiday on the statutory
holiday or on an alternative or substituted holiday or a holiday under section 39(4).
(Amended, 53 of 1976, s. 3; 71 of 1976, s. 6 and 48 of 1984, s. 17)
Restriction on pay in lieu of holiday
40A. (1) Subject to subsection (2), no payment of holiday pay payable under
section 40, or other sum, shall be made in lieu of the grant of a holiday.
(2) Notwithstanding subsection (1), where a contract of employment of an
employee is terminated, holiday pay in respect of a holiday granted as an alternative
holiday or substituted holiday under section 39(2) or (3) prior to the termination of
the contract of employment but falling after such termination shall be paid to that
employee as soon as is practicable but in any case not later than 7 days after the
day of termination; and such holiday pay shall be calculated in accordance with
section 41(1) or (2) whichever is applicable to the employee as if the contract of
employment had not been terminated.
(Added, 48 of 1984, s. 18)
56 CAP. 571 Employment [1988 Ed.
Rate of holiday pay
41. (1) Holiday pay shall be a sum equivalent to the wages which the
employee would have earned C Ill- 1 4 4 ----- 1 1
(2) Notwithstanding subsection (1), where an employee is employed on piece
rates or where the daily wages of an employee vary from day to day, the holiday pay
shall be a sum equivalent to the average daily wage earned by the employee, and for
the purposes of this subsection the average daily wage shall be the average of the
daily wages earned by the employee on each day on which he worked during every
complete wage period, comprising not less than 28 days and not more than 31 days,
immediately preceding or expiring on the holiday or
first day of the holidays. 11 -----
(Amended, 48 of 1984, s. 19)
(Part VIII added, 39 of 1973, s. 5)
PART VIIIA
ANNUAL LEAVE WITH PAY
Grant of annual leave
41A. (1) Subject to this Part, every employee shall, in respect of each period of
12 months employment under a continuous contract, be granted by his employer
within the period of 12 months following the completion of that period of
employment 7 days' annual leave with pay, and the time when the leave is so granted
shall be appointed by the employer after consultation with the employee or his
representatives.
(2) Every employer shall give his employee not less than 14 days'notice in
writing of the time he has appointed for the grant of a period of annual leave, except
where a shorter period of not notice is agreed to by the employer and employee.
(3) The annual leave shall be granted by the employer and shall be taken by
the employee within the period of 12 months during which that leave is required by
subsection (1) to be granted on 7 consecutive days or, if the employee so requests, on 4
consecutive days, and the remaining days of annual leave, if any, shall be granted
consecutively or separately in accordance with subsection (1). (Replaced, 11 of 1979,
s. 2)
(4) If a rest day or holiday falls within any period of annual leave granted in
accordance with this section, it shall be counted as annual leave and another rest
day or holiday shall be substituted in accordance with section 18(5) or section
39(2), (3) or (4), as the case may require. (Replaced, 11 of 1979, s. 2)
(5) No period of total incapacity for work by reason of sickness or injury
occurring during a period of annual leave shall count as part of that annual leave
unless it commences after the commencent of the period of annual leave.
(6) For the avoidance of doubt it is declared that annual leave is, and shall be
granted, in addition to the rest days, holidays and maternity leave to which an
employee is entitled under this Ordinance. (Added, 11 of 1979, s. 2.
Amended, 22 of 1981, s. 8)
Payment of annual leave pay
41B. Where an employee is granted any period of annual leave, the employer
shall pay him annual leave pay in respect of that period not later than the day on
which he is next paid his wages after that period.
Rate of annual leave pay
41C. (1) Annual leave pay shall, subject to subsection (2), be a sum equivalent
to the wages which the employee would have earned if he had worked every day
during the period of annual leave. (Amended, 11 of 1979, s.3)
(2) Where an employee is employed on piece rates or where the wages of an
employee vary from day to day, the annual leave pay shall be calculated by reference
to the average daily wage earned by the employee, and for the purposes of this
subsection the average daily wage shall be the average of the daily wages earned by
the employee on each day on which he worked during every complete wage period,
comprising not less than 28 days and not more than 3 ----- 1 days, immediately
preceding or expiring on the first day of the annual leave or on the day on which the
contract of employment terminates, as the case may be.
(Amended, 48 of 1984, s. 20)
Annual leave pay on termination
41D. (1) Where an employee's contract of employment terminates or is
terminated after completion of a period of 12 months employment under a
continuous contract in respect of which he has not been granted 7 days' annual
leave, he shall as soon as practicable and in any case not later than 7 days after the
day of termination be paid by his employer a sum equal to the annual leave pay that
he would have received for that part of his 7 days' annual leave that has not been
granted to him if granted immediately following the day of termination
(2) Where, under a continuous contract, an employee's period of employment,
not being a period in respect of which he is entitled to or has been granted 7
days' annual leave is 3 months or more but less than 12 months, and the contract
terminates or is terminated, otherwise than under section 9, for any reason
whatsoever including his resignation, he shall as soon as practicable and
in any case not later than 7 days after the day of termination be paid by his employer, in
addition to any sum due under subsection (1), a sum equal to such proportion of the
annual leave pay he would have received for 7 days' annual leave
immediately following the day of termination as the number of complete weeks within
the period of employment bears to 52.
(Amended, 11 of 1979, s. 4)
Restriction on pay in lieu of leave
41E. Save as provided in section 41 D, no payment of annual leave pay or
other sum may be made in lieu of the grant of annual leave.
Annual leave shutdown
41F. (1) Every employer who intends to close down his business or part thereof
for the purpose of granting annual leave to any of his employees shall give one
month's notice in writing of his intention so to do to every employee who will as a
result have to take annual leave or otherwise stop work during the period of closure.
(2) The provisions of subsection (1) shall be deemed to be complied with if not
later than one month before commencement of the period of closure, the employer
exhibits in a conspicuous place in the place of employment notice of the closure and
of the names of all employees who will as a result have to take annual leave or
otherwise stop working, or in lieu of such names, a description or other details
enabling such employees to be clearly identified.
(3) Every person who is an employee at the commencement of the period
during which the business or part thereof is closed down for the purpose specified
in subsection (1), and who is not otherwise entitled to annual leave pay in respect of
any day during that period, shall be allowed that day as annual
leave and shall be paid by the employer annual leave pay in respect thereof; and
for the purposes of this Part any annual leave with pay allowed by reason only
of this subsection shall be deemed to have been granted in respect of a period of
12 months employment under a continuous contract ending immediately before
the period of closure.
Employer to keep annual leave records
41G. Every employer shall keep a record of
(a) the date of commencement and termination of
(i) the employment of each employee;
(ii) all periods of annual leave taken by each employee; and
(iii) all periods of closure of his business or part thereof for the purpose
of granting any annual leave to any of his employees; and
(b) all annual leave pay received by each employee.
(Part VIIIA added, 53 of 1977, s. 3)
PART IX
ANCILLARY PROVISIONS RELATING TO SICKNESS ALLOWANCE
AND HOLIDAYS AND ANNUAL LEAVE WITH PAY
(Amended, 53 of 1977, s. 4)
Ordinary wages instead of holiday pay, annual leave pay,
maternity leave pay or sickness allowance
42. Where, pursuant to the terms of his contract of employment or the terms of
any other agreement or for any other reason, an employee is paid his ordinary
wages in respect of any holiday, annual leave, maternity leave or sickness day, the
employee shall not, in addition to such ordinary wages, be entitled to be paid
holiday pay, annual leave pay, maternity leave pay or sickness allowance, as the
case may be.
(Amended, 53 of 1977, s. 5 and 22 of 1981, s. 9)
Payment of holiday pay, etc. in event of bankruptcy, etc.
43. For the purposes of section 38 of the Bankruptcy Ordinance (Cap, 6) and
section 265 of the Companies Ordinance (Cap. 32), any holiday pay, annual leave
pay, end of year payment or any proportion thereof, maternity leave pay or sickness
allowance to which an employee is entitled shall, whenever the employee became or
becomes entitled thereto, be deemed to be wages in respect of services rendered
during the relevant period prescribed in the said section 38 or the said section 265 or
in section 79 of the Companies Ordinance, as the case may be.
(Amended, 53 of 1977, s. 6;22 of 1981, s. 10 and 48 of 1984, s. 21)
(Part IX added, 39 of 1973, s. 5)
PART IXA
LIABILITY TO PAY WAGES OF SUB-CONTRACTOR'S AND
NOMINATED SUB-CONTRACTOR's EMPLOYEES
Interpretation and application
Interpretation
43A. (1) In this Part, unless the context otherwise requires---
'building works' means the construction, site formation, reconstruction,
maintenance (including redecoration and external cleaning), repairs, alteration
or demolition of the whole or any part of
(a) any building, dock, pier, bridge, viaduct or other structure; or
(b)any harbour or port works, reclamation, road, tunnel, sewer, drain, well or
waterworks,
and any installation works in respect of such building works;
'main nominated sub-contractor' means a nominated sub-contractor who enters
into a contract, express or implied, directly with a principal contractor to
perform all or any part of the work which the principal contractor has
contracted to perform;
'nominated sub-contractor' means
(a) any person-
(i) who enters into a contract, express or implied, with a principal
contractor to perform all or any part of the work which the principal
contractor has contracted to perform; or
(ii) who enters into a contract, express or implied, to perform all or any
part of the work which a person referred to in sub-paragraph (i) has
contracted to perform,
who is nominated by an owner or occupier of property, or by an agent or
authorized architect, surveyor or civil, municipal or structural engineer of
such owner or occupier; and
(b)any person who subsequently enters into a contract, express or implied, to
perform all or any part of the work agreed to be performed by a nominated
sub-contractor within the meaning of paragraph (a) of this definition;
'principal contractor' means a person who enters into a contract directly with an
owner or occupier of property, or with an agent or authorized architect,
surveyor or civil, municipal or structural engineer of such owner or occupier, to
perform any work for such owner or occupier;
'sub-contractor' means
(a)any person who enters into a contract, express or implied, with a principal
contractor to perform all or any part of the work which the principal
contractor has contracted to perform; and
(b)any other person who enters into a contract, express or implied, to perform
all or any part of the work which a sub-contractor within the meaning of
paragraph (a) has contracted to perform,
but does not include a nominated sub-contractor;
'work' means
(a) building works; and
(b)the supply of manual labour for the purposes of or in connection with
building works.
(2) For the purposes of this Part-
(a)a sub-contractor is a superior sub-contractor to another sub-contractor if
all or any part of the work which he contracted to perform is sub-
contracted to that other sub-contractor. whether or not such work is
performed by that other sub-contractor or further sub-contracted by that
other sub-contractor;
(b)a nominated sub-contractor is a superior nominated sub-contractor to
another nominated sub-contractor if all or any part of the work which he
contracted to perform is sub-contracted to that other nominated sub-
contractor, whether or not such work is performed by that other
nominated sub-contractor or further sub-contracted by that other
nominated sub-contractor.
Application
43B. This Part shall not apply to wages for any work for which a contract was
entered into by a principal contractor, nominated sub-contractor or sub-contractor
prior to the commencement* of the Employment (Amendment) (No. 4) Ordinance
1977 (54 of 1977).
*1.11-1977 ----- L.N. 207177.
Sub-contractor's employees' wages
Liability of principal contractor and superior
sub-contractor to pay wages of employees of
sub-contractors
43C. (1) Subject to this Part, if any wages become due to an employee who is
employed by a sub-contractor on any work which the sub-contractor has contracted
to perform, and such wages are not paid within the period specified in section 23, 24
or 25, as the case may be, such wages shall be payable to the employee
(a)where the sub-contractor has contracted with the principal contractor, by
the principal contractor; and
(b)where the sub-contractor has contracted with a superior sub-contractor,
by the principal contractor and every superior sub-contractor to the sub-
contractor, jointly and severally.
(2) The liability of a principal contractor and of a principal contractor and
superior sub-contractor or superior sub-contractors jointly and severally under
subsection (1) shall be limited
(a)to the wages of an employee whose employment relates wholly to the
work which the principal contractor has contracted to perform and whose
place of employment is wholly on the site of the building works; and
(b)to the wages due to such an employee for 2 months without any
deductions under this Ordinance and such months shall be the first 2
months of the period in respect of which the wages are due to the
employee.
(3) Subject to subsection (4) the wages payable under subsection (1) shall be
paid by the principal contractor or superior sub-contractor, as the case may be, not
later than 30 days after the date on which a notice under section 43D is received by
him or service thereof is deemed to be effected on him.
(4) Where any claim in respect of the wages payable under subsection (1) is
filed with the Labour Tribunal and an award or order is made in favour of the
employee, the wages shall be paid within such time as the Labour Tribunal may
direct, or. in the absence of any direction, not later than 30 days after the making of
the award or order.
Notice by employee to principal contractor
43D. (1) Where the wages of an employee who is employed by a sub-contractor
are not paid by his employer within the period specified in section 23, 24 or 25, as
the case may be, the employee shall serve on the principal contractor, within 60
days (or such other additional period not exceeding 90 days as the Commissioner
may permit) after the date on which the wages become due, a notice in writing
stating the- (Amended, 48 of 1984, s. 22)
(a) name and address of the employee;
(b) name and address of his employer;
(c) address of the place of employment of the employee;
(d) particulars of the work in respect of which the wages are due; and
(e) amount of wages due and the period to which they relate.
(2) A principal contractor who receives a notice under subsection (1) from an
employee of a sub-contractor shall, within 14 days after the receipt of the notice,
serve a copy of the notice on every superior sub-contractor to that sub-contractor
(if any) of whom he is aware.
(3) A principal contractor and superior sub-contractor (if any) shall not be liable
to pay any wages under section 43C to the employee of a subcontractor if that
employee fails to serve a notice on the principal contractor under subsection (1).
(4) A principal contractor who without reasonable excuse fails to comply with
subsection (2) shall be guilty of an offence and shall be liable on conviction to a
fine of $10,000. (Amended, 24 of 1988, s. 2)
Employer to supply information at request of employee
43E. (1) Where an employer who is a sub-contractor fails to pay, within the
period specified in section 23, 24 or 25, as the case may be, any wages due to an
employee employed by him on work which he has contracted to perform, he shall
within 7 days of the receipt of a written request made by the employee supply to the
employee the name and address of the principal contractor and every superior sub-
contractor to him and shall, within such 7 days' period, deliver a copy of the written
request to the principal contractor and every superior sub-contractor to him.
(2) An employer who without reasonable excuse fails to comply with
subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine
of $10,000. (Amended, 24 of 1988, s. 2)
Recovery of wages paid by principal contractor or
superior sub-contractor
43F. (1) If a principal contractor or superior sub-contractor pays to an employee
any wages under section 43C, the wages so paid shall be a debt due by the
employer of that employee to the principal contractor or superior subcontractor, as
the case may be.
(2) Any principal contractor or superior sub-contractor who pays to an
employee any wages under section 43C may either
(a)claim contribution from every superior sub-contractor to the employee's
employer or from the principal contractor and every other such superior
sub-contractor as the case may be; or
(b)deduct by way of set-off the amount paid by him from any sum due or
which may become due
(i) to any sub-contractor to whom he has sub-contracted all or any part
of work that he contracted to perform being work upon which the
employee was employed, and
(ii) in respect of the work that he has sub-contracted.
(3) For the purposes of this section any amount-
(a)paid by a principal contractor or a superior sub-contractor by way of
contribution under subsection (2)(a), or
(b)deducted by a principal contractor or a superior sub-contractor from any
sum due by him by way of set-off under subsection (2)(b),
shall be deemed to be payment by the principal contractor or superior sub-
contractor who has paid the amount by way of contribution or by the superior sub-
contractor who has suffered a deduction from any sum due to him by way of set-off
to an employee of wages under section 43C.
Nominated sub-contractor's employees' wages
Liability of superior nominated sub-contractor to pay wages of employees of
nominated sub-contractors
43G. (1) Subject to this Part, if any wages become due to an employee who is
employed by a nominated sub-contractor on any work which the nominated sub-
contractor has contracted to perform, and such wages are not paid within the period
specified in section 23, 24 or 25, as the case may be, such wages shall be payable to
the employee by every superior nominated sub-contractor to the nominated sub-
contractor by whom the employee is employed, jointly and severally.
(2) The liability of a superior nominated sub-contractor or superior nominated
sub-contractors jointly and severally under subsection (1) shall be limited
(a)to the wages of an employee whose employment relates wholly to the
work which the main nominated sub-contractor has contracted to perform
whether or not his place of employment is on the site of the building
works; and
(b)to the wages due to such an employee for 2 months without any
deductions under this Ordinance and such months shall be the first 2
months of the period in respect of which the wages are due to the
employee.
(3) Subject to subsection (4) the wages payable under subsection (1) shall be
paid by the superior nominated sub-contractor not later than 30 days after the date
on which a notice under section 43H is received by him or service thereof is deemed
to be effected on him.
(4) Where any claim in respect of the wages payable under subsection (1) is
filed with the Labour Tribunal and an award or order is made in favour of the
employee, the wages shall be paid within such time as the Labour Tribunal may
direct, or, in the absence of any direction, not later than 30 days after the making of
the award or order.
Notice by employee to main nominated sub-contractor
43H. (1) Where the wages of an employee who is employed by a nominated
sub-contractor are not paid by his employer within the period specified in section
23, 24 or 25, as the case may be, the employee shall serve on
the main nominated sub-contractor, within 60 days (or such other additional period
not exceeding 90 days as the Commissioner may permit) after the date on which the
wages became due, a notice in writing containing the particulars specified in section
43D(1). (Amended, 48 of 1984, s. 23)
(2) A main nominated sub-contractor who receives a notice under subsection
(1) from an employee of a nominated sub-contractor shall, within 14 days after the
receipt of the notice, serve a copy of the notice on every superior nominated sub-
contractor to that nominated sub-contractor (if any) of whom he is aware.
(3) A superior nominated sub-contractor shall not be liable to pay any wages
under section 43G to the employee of a nominated sub-contractor if that employee
fails to serve a notice on the main nominated sub-contractor under subsection (1).
(4) A main nominated sub-contractor who without reasonable excuse fails to
comply with subsection (2) shall be guilty of an offence and shall be liable on
conviction to a fine of $10,000. (Amended, 24 of 1988,s. 2)
Employer to supply information at request of employee
431. (1) Where an employer who is a nominated sub-contractor fails to pay,
within the period specified in section 23, 24 or 25, as the case may be, any wages
due to an employee employed by him on work which he has contracted to perform,
he shall within 7 days of the receipt of a written request made by the employee
supply to the employee the name and address of the main nominated sub-contractor
and every superior nominated sub-contractor to him and shall, within such 7 days'
period, deliver a copy of the written request to the main nominated sub-contractor
and every superior nominated sub-contractor to him.
(2) An employer who without reasonable excuse fails to comply with
subsection (1) shall be guilty of an offence and shall be liable on conviction to a
fine of $10,000. (Amended, 24 of 1988, s. 2)
Recovery of wages paid by superior nominated
sub-contractor
43J. (1) If a superior nominated sub-contractor pays to an employee any wages
under section 43G, the wages so paid shall be a debt due by the employer of that
employee to the superior nominated sub-contractor.
(2) Any superior nominated sub-contractor who pays to an employee any
wages under section 43G may either
(a)claim contribution from every other superior nominated sub-contractor to
the employee's employer; or
(b)deduct by way of set-off the amount paid by him from any sum due or
which may become due
(i) to any nominated sub-contractor to whom he has sub-contracted all
or any part of work that he contracted to perform being work upon which
the employee was employed; and
(ii) in respect of the work that he has sub-contracted.
(3) For the purposes of this section any amount-
(a)paid by a superior nominated sub-contractor by way of contribution
under subsection (2)(a), or
(b)deducted by a superior nominated sub-contractor from any sum due by
him by way of set-off under subsection (2)(b),
shall be deemed to be payment by the superior nominated sub-contractor who has
paid the amount by way of contribution or has suffered a deduction from any sum
due to him by way of set-off to an employee of wages under section 43G.
General
Cessation of employer's liability for wages paid by
principal contractor, superior sub-contractor or
superior nominated sub-contractor
43K. Where any wages are paid to an employee by a principal contractor or
superior sub-contractor under section 43C or by a superior nominated sub-
contractor under section 43G, the liability of the employer shall, subject to sections
43F(1) and 43J(1), cease.
Service of notice
43L. (1) A notice under section 43D or 43H may be served on a principal
contractor or a main nominated sub-contractor respectively and a request under
section 43E or 431 may be served on an employer
(a) by delivering it to him personally;
(b)by leaving it at his usual address or last known residential or business
address; or
(c)by sending it to him by registered post to any address referred to in
paragraph (b).
(2) Service under subsection (1)(b) shall be deemed to have been effected on
the day on which the notice or request is left at the premises.
Employee's rights against employer not affected
43M. Nothing in this Part shall prejudice the right of an employee to recover
any wages due to him by an employer directly from the employer.
(Part IXA added, 54 of 1977, s. 2)
PART X
INFORMATION RESPECTING CONDITIONS OF SERVICE
(Amended, 48 of 1984, s. 24)
Information to persons entering employment
44. (1) Every employer shall inform each person in detail before such person
enters his employment, in a manner intelligible to such person, of the conditions
with regard to
(a) the wages and the wage period;
(b)where Part IIA applies to such person, the end of year payment or
proportion of the end of year payment and the payment period; and
(e)the length of notice required to terminate the proposed contract of
employment,
under which he is to be employed. (Replaced, 48 of 1984, s. 25)
(2) before such employment is entered into, of a written
request therefor from such person the employer shall forthwith deliver to him a
notice in writing containing such conditions.
(3)
Information to employees
45. (1) Every employer shall inform his employee, in a manner intelligible to the
employee
(a) whenever any change takes place in the conditions referred to in
section 44 or the conditions in force at any time, of such change;
(b)at the time of each payment to him of his wages, in so far as such
particulars may be subject to change, of the particulars of his wages for the
wage period concerned.
TT--- ----- -----
(2) of a written request from his employee the employer shall
deliver to him- -----
(a)where the request relates to changes in the conditions referred to in
subsection (1)(a), forthwith; or
(b)where it relates to the particulars referred to in subsection (1)(b), at the
time of the payment to him of his wages for the wage period concerned,
a notice in writing containing such changes in conditions or particulars, as the case
may be.
Details of conditions and particulars of wages
46. (1) The conditions referred to in sections 44 and 45 shall include the rate of
wages, the overtime rate and any allowances, whether calculated by the piece, job,
hour, day, week or otherwise, of the person or employee concerned.
(2) The particulars referred to in section 45 shall include-
(a)particulars of the amount earned, including overtime earnings (if any), by
the employee; and
(b)particulars of any deductions made from the wages of the employee and
the reasons therefor.
PART XI
RECORDS, FORMS AND RETURNS
Records to he kept by employers
47. (1) Every employer who is a member of a class specified under subsection
(2) shall in respect of
(a) each of his employees; or
(b) any class of them,
keep records in such form as may be specified to enable him to comply with
Part X.
(2) For the purposes of subsection (1), the Commissioner may, by notice in the
Gazette, specify any class of employers.
Returns to be made to Commissioner
48. (1) For the purposes of this Ordinance, the Commissioner may, either by
notice in writing served by registered post or by notice in the Gazette, require any
employer or class of employers to make returns in such form and at such times as he
may in any such notice direct:
Provided that the Commissioner shall not require in any return information or
particulars in respect of a time or period more than 6 months immediately preceding
the date of the notice.
(2) Copies of any such form shall be supplied to an employer free of charge on
application to the Commissioner.
Form of notices, records, etc.
49. (1) The Commissioner may specify the form of any consent, request, notice
in writing, certificate, application, record or return required for the purposes of this
Ordinance. (Amended, 52 of 1988, s. 15)
(2) The Commissioner may publish in the Gazette any forms specified by him
under subsection (1).
Requirement to keep wage and employment records
49A. (1) Every employer shall at all times keep and maintain a record in
which is set out the age and employment history of each employee covering the
period of his employment during the preceding 6 months.
(2) The wage records referred to in subsection (1) shall be kept-
(a)at the employer's place of business or at the place where the employee is
employed; and
(b) for a period of 6 months after the employee ceases to be employed.
(3) A record which includes particulars in relation to each employee of-
(a) his name and identity card number;
(b) the date he commenced his employment;
(c) his job title;
(d) the wages paid to him in respect of each wage period;
(e) his wage period;
(f) periods of annual leave, sick leave, maternity leave and holidays-
(i) to which he is entitled; and
(ii) that he has taken together with details of payments made in respect
of such period;
(g)the amount of any end of year payment payable under Part IIA and the
period to which it relates;
(h) the period of notice required for termination of contract;
(i) the date of any termination of employment, shall be a
sufficient record for the purposes of subsection (1).
(Added, 12 of 1985, s. 29)
PART XII
EMPLOYMENT AGENCIES
Interpretation and application of Part
50. (1) In this Part, unless the context otherwise requires-
'certificate of exemption' means a certificate issued under section 54;
,,employment agency' means a person who operates a business the purpose of
which is-
(a) to obtain employment for another person; or
(b) to supply the labour of another person, manual or otherwise to an
employer,
whether or not the person who operates the business will derive any pecuniary
or other material advantage from either the employer or such other person;
'licence' means a licence issued under section 52 and 'licensee' shall be
construed accordingly.
(2) Subject to subsection (3), this Part shall apply to any employment agency
which is carried on in Hong Kong, whether the employment is to take place within
or outside Hong Kong.
(3) This Part shall not apply to any employment agency-
(a)which is carried on or subvented by Her Majesty's Government or the
Hong Kong Government;
(b)which is carried on under the terms of a licence to maintain a crew
department granted to any company under the Merchant Shipping
(Recruiting of Seamen) Ordinance (Cap. 135);
(c) which is carried on solely for or in connection with the employment of
persons to whom, by virtue of section 4(2)(a), this Ordinance does not
apply;
(d) [Repealed, 10 of 1980, s. 4]
(e)which is carried on by an employer for the sole purpose of recruiting
persons for employment on his own behalf;
which is carried on by a contractor, or sub-contractor, who employs any
person on work for another person;
(g)which is carried on by the proprietor of a newspaper or other publication if
the operation of an employment agency is non-profit making and is not
the principal purpose of the publication of the newspaper or other
publication;
(h) which is-
(i) non-profit making;
(ii) wholly maintained or managed by the owner, staff or students of a
school, college, university or other educational institution recog
i
sectio
n
nized by the Director of Education; and
(iii) carried on solely for or in connection with the employment of the
students or graduates of such school, college, university or other
educational institution; or
(i)subject to any regulations which may be applicable thereto, in respect of
which a certificate of exemption has been issued.
Prohibitions in respect of the operation of employment
agencies
51. (1) No person shall operate, manage or assist in the management of an
employment agency unless
(a)he is the holder of a licence or certificate of exemption issued in respect of
the employment agency; or
(b)he is in the employment of the holder of a licence or certificate of
exemption.
(2) No person shall operate, manage or assist in the management of an
employment agency at any place other than the place of business specified in the
licence or certificate of exemption issued in respect of the employment agency.
(3) No person shall operate, manage or assist in the management of an
employment agency
(a)which obtains employment within Hong Kong unless the employment
agency is licensed to do so under section 52;
(b)which obtains employment outside Hong Kong unless the employment
agency is licensed to do so under section 52.
Application for and issue of licences
52. (1) The Commissioner may issue a licence to operate an employment
agency to any person who applies therefor in such manner as may be prescribed.
(2) A licence issued under this section shall-
(a) be in the prescribed form;
(b)specify the place of business of the employment agency in respect of
which it is issued; and
(e)state whether the licence authorizes the employment agency to obtain
employment within or outside Hong Kong.
(3) Separate licences, one authorizing the employment agency to obtain
employment within Hong Kong, and another authorizing it to obtain employment
outside Hong Kong, may be issued under this section to the same employment
agency.
(4) Subject to section 53, a licence issued under subsection (1) shall be valid
for 12 months after the date on which it is issued.
(5) The Commissioner may, upon application in such manner as may be
prescribed, renew a licence issued under subsection (1).
Refusal to issue, or revocation of, licences
53. (1) The Commissioner may refuse to issue or renew a licence, or may revoke
a licence, if he is satisfied on reasonable grounds
(a)that the name under which the employment agency is operated or is
intended to be operated
(i) is identical with the name of another employment agency which is
being, or has been, carried on by another person; or
(ii) so nearly resembles the name of another employment agency as to
be likely to deceive the public;
(b)that the employment agency is being, or is likely to be, used for unlawful
or immoral purposes; or
(c)that the person operating, or intending to operate, the employment
agency
(i) is an undischarged bankrupt;
(ii) has, within the preceding 5 years, been convicted of an offence
against the person of a child, young person or woman or of an offence
involving membership of a triad society, fraud, dishonesty or extortion;
(iii) has knowingly furnished to the Commissioner any false or
misleading information in connection with his application for the issue or
renewal of the licence;
(iv) has contravened any provision of this Part or any regulation made
under section 62; or
(v) is not, for any other reason, a fit and proper person to operate an
employment agency.
(2) The Commissioner shall, if he refuses to issue or renew a licence or revokes
a licence, within 14 days after such refusal or revocation, notify the applicant or
licensee in writing of the grounds for such refusal or revocation.
(3) Any person aggrieved by a decision of the Commissioner taken under
subsection (1) may, within 14 days after he is notified under subsection (2),
appeal to the Governor against the decision by lodging notice of the appeal and
the grounds therefor in writing at the office of the Chief Secretary.
(4) When considering any appeal to him under subsection (3) the Gover-
nor may confirm, vary or reverse the Commissioner's decision or make such
other order as he thinks fit.
(5) The licensee shall, if the Commissioner refuses to renew or revokes his
licence under subsection (1), within 14 days after-
(a) he is notified under subsection (2); or
(b)if he has appealed under subsection (3), he is notified of the Governor's
dismissal of the appeal,
deliver the licence, and every copy thereof, to the Commissioner.
Commissioner's power of exemption
54. (1) Subject to subsection (2), the Commissioner may, upon applica-
tion in such manner as may be prescribed, exempt an employment agency from
obtaining a licence under section 52, subject to such conditions as he may
specify, if he is satisfied that the employment agency is non-profit making and
should, in the public interest, be so exempted.
(2) The Commissioner shall not exempt under subsection (1) any employ-
ment agency which obtains employment for or in connection with persons
outside Hong Kong.
(3) The Commissioner shall issue to any person exempted under subsec-
tion (1) a certificate of exemption.
(4) A certificate of exemption issued under subsection (3) shall---
(a) be in the prescribed form;
(b)specify the place of business of the employment agency in respect of
which it is issued; and
(c) specify any conditions subject to which it is issued.
Withdrawal of exemption
55. (1) The Commissioner may, at any time, withdraw an exemption
granted under section 54 if he is satisfied that the employment agency has ceased
to be non-profit making or should not be so exempted in the public interest.
(2) Without prejudice to the generality of subsection (1), the grounds on
which the Commissioner may withdraw an exemption shall include mutatis
mutandis the grounds contained in section 53(1) on which he may refuse to issue
or renew a licence or revoke a licence.
(3) Where the Commissioner withdraws his exemption from any person
under subsection (1) he shall notify such person in writing of the grounds for
such withdrawal.
(4) The holder of a certificate of exemption shall, within 14 days after he
is notified under subsection (3) of the withdrawal of the Commissioner's
exemption, deliver the certificate of exemption, and every copy thereof, to the
Commissioner.
(5) No appeal shall lie under this Part against the decision of the
Commissioner to withdraw an exemption granted to an employment agency.
Maintenance and delivery to the Commissioner of prescribed
registers, records and returns
56. (1) A licensee shall-
(a)maintain such registers and records of his employment agency as may
be prescribed; and
(b)keep such registers and records available for inspection at the place of
business of the employment agency by the Commissioner, or by any
public officer authorized by him in that behalf, at all reasonable times.
(2) A licensee shall, within such time as may be prescribed, deliver to the
Commissioner such returns in respect of the employment agency as may be
prescribed.
(3) The registers and records referred to in subsection (1) shall be retained
by the licensee for a period of not less than 12 months after the expiration of
each accounting year of the employment agency concerned.
Prohibited acts in respect of employment agencies
57. A licensee shall not, directly or indirectly-
(a)receive from any person on account of having obtained, or in
connection with obtaining or seeking to obtain, employment for that
person or any other person-
(i) any reward of any kind; or
(ii) any payment or other advantage in respect of expenses or
otherwise, except the prescribed fee and commission; (Replaced, 87
of 1975, s. 2)
(b)share with any person, other than a bona fide partner or shareholder
in his employment agency, the prescribed fee or commission which he
is permitted to charge and receive; or (Amended, 87 of 1975, s. 2)
(e)enter, except with the written permission of the Commissioner, into an
agreement, express or implied, with any employer whereby-
(i) the employer undertakes to employ only persons who seek
employment through the licensee's employment agency; and
(ii) the licensee agrees to pay or give to the employer some form of
material benefit.
Inspection of places of business of licensed or exempted
employment agencies
58. The Commissioner, and any public officer authorized by him in that
behalf may-
(a)enter and inspect without a warrant at any reasonable time the place
of business of an employment agency;
(b)require the production of, inspect, examine or take copies of any
register, record or other document relating to an employment agency;
(e)require any person who operates, manages or assists in the manage-
ment of an employment agency to furnish such information or
particulars relating to the employment agency as he may specify; and
(d)make such other inquiries from any other person connected or
associated with the employment agency as he thinks fit.
Investigation of suspected offences
59. (1) If the Commissioner, any public officer authorized by him in
that behalf or any police officer not below the rank of inspector suspects on
reasonable grounds that there is in any premises or place evidence of an offence
under this Part he may-
(a)enter and search without a warrant any such premises (other than
domestic premises) at any reasonable time; and
(b)require the production of, seize, detain and remove any article,
register, record or other document which may be evidence of an
offence under this Part.
(2) A magistrate may, if he is satisfied by information on oath that there
may be found in any domestic premises any evidence of an offence under
this Part, issue a warrant authorizing the Commissioner, any public officer
authorized in that behalf by the Commissioner or any police officer not below
the rank of inspector to enter and search the domestic premises at any
reasonable time.
(3) [Repealed, 24 of 1988, s. 2]
Offences
60. (1) Any person who contravenes section 51(2) or (3) shall be guilty
of an offence and shall be liable on conviction to a fine of $10,000. (Amended,
24 of 1988, s. 2)
(2) Any person who contravenes section 53(5) or 55(4) shall be guilty of
an offence and shall be liable on conviction to a fine of $5,000. (Amended, 24
of 1988, s. 2)
(3) Any licensee who contravenes section 56(1), (2) or (3) shall be guilty of
an offence and shall be liable on conviction to a fine of 510,000. (Amended, 24
of 1988, s. 2)
(4) [Repealed, 24 of 1988, s. 21
(5) Any person who-
(a)in connection with any application to the Commissioner under sec-
tion 52(1) or 54(1) furnishes any information which he knows or
reasonably ought to know to be false or misleading in any material
particular; or
(b) in connection with any inquiry or inspection under section 58-
(i) fails without reasonable excuse to produce any register, record or
other document relating to the employment agency when required to do
so by the Commissioner or any public officer authorized in that behalf by
the Commissioner; or
(ii) furnishes to the Commissioner or any such public officer any
information which he knows or reasonably ought to know to be false or
misleading in any material particular,
shall be guilty of an offence and shall be liable on conviction to a fine of
$10,000. (Amended, 24 of 1988, s. 2)
(6) Any person who contravenes section 51(1) shall be guilty of an offence and
shall be liable on conviction to a fine of $20,000. (Added, 24 of 1988, s. 2)
(7) Any licensee who contravenes any provision of section 57 shall be guilty of
an offence and shall be liable on conviction to a fine of 520,000. (Added., 24 of
1988, s. 2)
Application of sections 56, 57, 58 and 59 to holders of
certificates of exemption and exempted employment
agencies
61. (1) Sections 56, 57, 58 and 59 shall apply to holders of certificates of
exemption in the same manner as they apply to licensees.
(2) Every reference to an employment agency in sections 56, 57, 58 and 59 shall,
except where the context otherwise requires, be construed as a reference to both an
employment agency licensed under section 52 and an employment agency exempted
under section 54.
Power to make regulations
62. The Governor in Council may make regulations for all or any of the
following purposes
(a)prescribing the procedure for the issue of licences and certificates of
exemption;
(b)fixing the fees to be paid for the issue and renewal of a licence or
certificate of exemption and the method of payment of such fees;
(c)prescribing the procedure to be followed when a licensee or holder of a
certificate of exemption
(i) ceases to operate his employment agency; or
(ii) changes the place of business of his employment agency;
(d) prescribing the procedure to be followed when-
(i) a company is issued with a licence or certificate of exemption; and
(ii) there is a change in the management of the company;
(e)requiring a licensee and the holder of a certificate of exemption to display
his licence or certificate of exemption conspicuously at the place of
business of the employment agency;
(f)providing for the publication in the Gazette of particulars of all licences
and certificates of exemption;
(g) prescribing the nature of services in respect of which an employment
agency may charge and receive any fee, commission or expenses;
(h)prescribing the maximum fees and charges which may be charged and
received by an employment agency;
(i)prescribing any thing which is to be or may be prescribed under this Part;
and
(j)generally for the better carrying out of the provisions and purposes of this
Part.
(Part XII replaced, 35 of 1973, s. 2)
PART XIII
OFFENCES AND
PENALTIES
Offences and penalty
63. (1) Any employer who wilfully and without reasonable excuse contravenes
any of the provisions of section 11 E or 11 F(3) or (4) shall be guilty of an offence.
(Amended, 71 of 1970, s. 4; 48 of 1984, s. 26 and 24 of 1988, s. 2)
(2) Any employer who-
(a) without reasonable excuse, fails-
(i) to grant to any employee any rest day which he is required to grant
under Part IV; or
(ii) to comply with any of the provisions of section 18(2),41A(2) 41A(3)
or 41F(1); or (Amended, 53 of 1977, s. 7)
(b) contravenes section 19,
shall be guilty of an offence. (Added, 23 of 1970, s. 4)
(3) Any person who wilfully contravenes section 67(2) shall be guilty of an
offence. (Added, 71 of 1970, s. 4)
(4) Any employer who without reasonable excuse fails-
(a)to grant to any employee any holiday which he is required to grant under
section 39; or
(b) to pay to any employee-
(i) any sickness allowance which he is required to pay under section 33;
or
(ii) any holiday pay which he is required to pay under section 40 or
40A(2); or (Amended, 48 of 1984, s. 26)
(c) to grant to any employee any annual leave which he is required to
grant under section 41A(1); or
(d)to grant to any employee any rest day or holiday which he is required to
grant under section 41A(4); or
(c) to pay to any employee an annual leave pay which he is required to
pay under section 41A(1),41D or 41F(3)
shall be guilty of an offence. (Added, 39 of 1973, s. 6. Amended, 53 of 1977, s. 7)
(5) Any person who contravenes any of the provisions of section 26, 27, 28(2),
29, 30, 32, 40A(1), 41 B, 41E, 41G, 44, 45, 47(1), 49A or 72A(1) or (2) shall be guilty of
an offence. (Amended, 53 of 1977, s. 7; 10 of 1980, s. 5; 48 of 1984, s. 26; 12 of 1985, s.
29(2) and 24 of 1988, s. 2)
(5A) Any person who
(a)fails to comply with a requirement made by any officer under section 72;
(b)wilfully or recklessly gives information which is false in a material
particular or withholds information as to any of the matters in respect of
which information is required to be given under section 72; or
(e) [Repealed, 24 of 1988, s. 2]
(d)fails to comply with any condition imposed on the granting of any
exemption under section 73(2),
shall be guilty of an offence. (Added, 55 of 1979, s. 2)
(6) Any person who fails to comply with the requirements of a notice in
writing or a notice published in the Gazette under section 48(1) shall be guilty of an
offence.
(7) A person who is guilty of an offence under this section shall be liable on
conviction to a fine of $10,000. (Amended, 24 of 1988, s. 2)
Offences relating to sections 23, 24, 25, 31, 72A and 72B
and penalty
63A. (1) Any employer who wilfully and without reasonable excuse
contravenes any of the provisions of section 23, 24, 25 or 31 shall be guilty of an
offence.
(2) Any person who contravenes any of the provisions of section 72A(3) or
72B(a) or (b) shall be guilty of an offence.
(3) A person who is guilty of an offence under this section shall be liable on
conviction to a fine of $20,000.
(Added, 24 of 1988, s. 2)
Prosecution of offences
64. (1) No prosecution for an offence under section 31RA(6) or section 63(1) or
(3) or 63A(I) shall be commenced without the consent in writing of the
Commissioner. (Amended, 71 of 1970, s. 4A; 24 of 1988, s. 2 and 52 of 1988,s.16)
(2) Before the Commissioner gives his consent to prosecute under subsection
(1) he shall hear the person against whom the allegation is made, or give him an
opportunity of being heard.
(3) Subject to subsection (1), a prosecution for any offence under this
Ordinance may be brought in the name of the Commissioner and may be
commenced and conducted by any officer of the Labour Department authorized in
that behalf in writing by the Commissioner. (Replaced, 48 of 1984, s. 27)
(4) Nothing in this section shall derogate from the powers of the Attorney
General in respect of the prosecution of criminal offences.
Service of summons
64A. (1) Any summons relating to an offence alleged to have been committed
under this Ordinance by an employer may be served by leaving a copy of the
summons with some person for him at the place of employment mentioned in the
summons.
(2) Any such summons may be addressed to 'the employer' without
specifying the name of the employer.
(3) Any summons relating to an offence alleged to have been committed under
this Ordinance by an employee may be served by leaving a copy of the summons
either with some person for him at his last or usual place of abode or with some
person for him at his place of employment mentioned in the summons.
(4) Any summons relating to an offence alleged to have been committed under
this Ordinance by a company may be served by leaving a copy of the summons at,
or sending it by registered post to, the registered office of the company.
(Added, 48 qf 1984, s. 28)
Liability for outstanding wages
65. (1) An employer convicted of an offence under this Ordinance shall, in
addition to any fine imposed under section 63, if the court before which the
conviction was obtained so orders, pay any wages or other sum outstanding at the
time of the conviction and in respect of which the offence was committed.
(2) Where the employer is acquitted of an offence under section 63(1) on
grounds that his default was not wilful or not without reasonable excuse, the court
may, if it finds that any wages or other sums in respect of which the charge was
brought are due, order the employer to pay such wages or other sums.
PART XIV
MISCELLANEOUS
Wages not to he attached
66. No order for the attachment of wages, or, in the case of an employee to
whom Part IIA applies, any end of year payment or proportion thereof, of an
employee shall be made by any court:
Provided that a civil debt due to the Crown under any enactment may be
recovered from the wages of an employee by attachment or otherwise.
(Amended, 48 of 1984, s. 29)
Application for apprehension of absconding employer
67. (1) If an employer or former employer is about to leave Hong Kong with
intent to evade payment of- (Amended, 48 of 1984, s. 30)
(a)any wages earned by any of his employees and owed by the employer,
whether or not the payment of such wages is yet due; or
(b)any other moneys owed by the employer under a contract of employment
to any of his employees,
any of his employees may apply to a District Judge to issue a warrant in accordance
with the Second Schedule, and in respect of any such application the Second
Schedule shall apply.
(2) No person shall make an application under subsection (1) unless he has
reasonable grounds for making such application.
(Added, 71 of 1970, s. 5)
Amendment of wage levels
67A. The Legislative Council may by resolution published in the Gazette
amend the level of wages specified in sections 4(2)(a) and 31G(2).
(Added, 6 of 1981, s. 4)
Amendment of forms
68. The Governor may, by order published in the Gazette, amend Part 11 of the
Second Schedule.
(Added, 44 of 1971, s. 5)
Saving as to existing contracts of service
69. Save as is otherwise provided in this section, any agreement or contract of
employment entered into between an employer and an employee, which is valid and
in force at the commencement of this Ordinance, shall continue to be in force and,
subject to any express conditions contained in any such agreement or contract, the
parties thereto shall be subject to and entitled to the benefit of the provisions of this
Ordinance:
Provided that where any express condition in the agreement or contract is
contrary to the provisions of this Ordinance, the express condition shall be void.
Contracting out
70. Any term of a contract of employment which purports to extinguish or
reduce any right, benefit or protection conferred upon the employee by this
Ordinance shall be void.
(Added, 5 of 1970, s. 8)
Saving as to schemes of medical treatment under repealed
Industrial Employment (Holidays with Pay and Sickness
Allowance) Ordinance
71. Any scheme of medical treatment which is operated by an employer and is
recognized by the Director under section 8 of the repealed Industrial Employment
(Holidays with Pay and Sickness Allowance) Ordinance* shall continue in force and
have effect as if it were operated and approved under the corresponding provision
in this Ordinance.
(Added, 39 of 1973, s. 7)
Powers of officers
72. (1) The Commissioner, or any public officer authorized by the Commissioner
in writing for the purpose and on production of that authority, may
(a)subject to subsection (2), enter, inspect and examine at all reasonable
times, by day and night, any premises or place, in which he knows or has
reasonable cause to believe that persons are employed;
(b)require the production of any register, record, form or other document
required to be kept under this Ordinance and inspect, examine and copy
the same;
(c)make such examination and inquiry as may be necessary to ascertain
whether the requirements of this Ordinance are complied with, and seize
anything which may appear to be evidence of an offence against this
Ordinance;
(d)examine, either alone or in the presence of any other person, as he thinks
fit, respecting matters under this Ordinance, any person whom he finds in
any industrial undertaking within the meaning of the Factories and
Industrial Undertakings Ordinance (Cap. 59), or whom he has reasonable
cause to believe has been within the preceding 2 months employed in any
industrial undertaking within the meaning of the Factories and Industrial
Undertakings Ordinance, or require any such person to be so examined
and to sign a declaration of the truth of the matters respecting which he
has been so examined; (Added, 10 of 1980,s.6)
(e)require any person who employs or has employed any woman, young
person or child in an industrial undertaking within the meaning of the
Factories and Industrial Undertakings Ordinance or any agent or servant
of any such employer to give to him all information in the possession of
such person, agent or servant with reference to such woman, young
person or child and to the labour conditions and treatment of every
woman, young person or child employed by such employer; (Added, 10 of
1980, s. 6)
(f)require the posting up, in such place and manner and for such period as
he may direct, of any notice or form in connection with the
*See Cap. 333, 1964 Ed.
provisions of this Ordinance or of any Ordinance specified in the Fourth
Schedule; (Added, 10 of 1980, s. 6. Amended, 48 of 1984, s.31)
(g)exercise any other powers which may be conferred on him by any
regulations made under this Ordinance. (Added, 10 of 1980, s. 6)
(2) No premises or part of a premises which is used for dwelling purposes shall
be entered under subsection (1) except by virtue of a warrant issued by a
magistrate, where such magistrate is satisfied by information on oath that there is
reasonable ground for suspecting that an offence against this Ordinance has been,
is being or is about to be committed in such premises or part or that there is in such
premises or part anything likely to be or contain evidence of such offence.
(3) An officer exercising any power conferred on him by subsection (1) in
relation to any industrial undertaking within the meaning of the Factories and
Industrial Undertakings Ordinance may take with him any person whom he may
reasonably need to assist him in carrying out his duties under this Ordinance and in
particular may, for his assistance, take persons who have been engaged by the
Commissioner, on account of their special expertise, to advise the Labour
Department on any matters necessary for carrying out the purposes of this
Ordinance. (Added, 10 of 1980, s. 6)
(4) A person who accompanies an officer pursuant to subsection (3)-
(a)may give to the officer such assistance in the exercise of any power
conferred on him by subsection (1) as the officer may reasonably require;
(b)shall be deemed to be a public officer for the purposes of sections 72A and
72B. (Added, 10 of 1980, s. 6)
(Added, 55 of 1979, s. 2)
Duty of public officers not to disclose source of complaint, etc.
72A. (1) Save with the consent of the person who has made the complaint or as
provided in subsection (4), no public officer shall disclose to any person, other than
another public officer in the course of official duty, the name or identity of any
person who has made a complaint alleging a contravention of this Ordinance or as a
result of which a contravention of this Ordinance has come to his notice or to the
notice of any other public officer.
(2) No public officer shall disclose to an employer or his agent or servant that a
visit to the place of employment maintained by that employer was made in
consequence of the receipt of any such complaint as is referred to in subsection (1).
(3) Save as provided in subsection (4), where, arising out of, or in connection
with, the enforcement of this Ordinance, any manufacturing or commercial secret or
any working process comes to the knowledge of a public officer, such officer shall
not at any time, and notwithstanding that he is no longer a public officer, disclose
such secret or process to any person.
(4) Where in any proceedings a court or a magistrate considers that justice so
requires, the court may order the disclosure of the name or identity of any
person who has made any such complaint as is referred to in subsection (1) or
the disclosure of any such secret or process as is referred to in subsection (3).
(Added, 10 of 1980, s. 7)
Employment not to be terminated, etc. by reason of fact
that employee has given evidence in proceedings under
Ordinance, etc.
72B. No employer shall terminate, or threaten to terminate, the employ-
ment of, or in any way discriminate against, any of his employees by reason of
the fact that the employee has-
(a)given evidence, or agreed to give evidence, in any proceeding for the
enforcement of this Ordinance; or
(b)given information to a public officer in any inquiry made by such
officer for the purposes of or in connection with the enforcement of
this Ordinance.
(Added, 10 of 1980, s. 7)
Presumptions
72C. In any prosecution under this Ordinance-
(a)where the age of any person at any time is material for the purposes
of any provision of this Ordinance, his age at the material time shall
be deemed to be or have been that which appears to the court or
magistrate, after considering any available evidence, to be or to have
been his age at that time;
(b)if the charge alleges the contravention of any of the provisions of this
Ordinance prohibiting or controlling the employment of women,
young persons or children and the defendant in such prosecution is the
employer at the place of employment in or in respect of which the
offence is alleged to have been committed, it shall, until the contrary is
proved, be presumed that any woman, young person or child to whom
the charge relates and who was employed in the place of employment
on the day on which the offence is alleged to have been committed was
employed therein on that day by such employer.
(Added, 10 of 1980, s. 7)
Regulations
73. (1) The Governor in Council may make regulations for all or any of
the following purposes-
(a)prohibiting or controlling the employment of persons or any class of
persons in any industry, occupation or trade;
(b)requiring records to be kept and forms to be maintained in respect
of employees or any class of employees employed in any industry,
occupation or trade;
(e)imposing obligations for securing compliance with the provisions of
this Ordinance upon employers, their agents or servants, and upon
employees;
(d) imposing duties and liabilities on employers and employees;
(e)defining the functions, duties and powers of public officers appointed or
authorized for the purposes of this Ordinance;
exempting any industry, occupation or trade, or any class or part of any
industry, occupation or trade, from the operation of this Ordinance or any
provision thereof;
(g)providing that this Ordinance or any provision thereof shall not apply, or
may be modified, in relation to any class of persons;
(h)providing that the Governor may, by order, amend the Schedule to any
regulations made under this Ordinance;
(ha) providing that, where the Commissioner is satisfied that work in any
industrial undertaking within the meaning of the Factories and Industrial
Undertakings Ordinance (Cap. 59), or class or description thereof, is
subject to seasonal or other special pressure, he may by order published
in the Gazette as respects any such industrial undertaking, or class or
description thereof, increase for any employee during any period of such
pressure the hours of work, period of employment or hours of overtime
employment specified in relation to that employee in regulations made
under this Ordinance for a period in any year not exceeding that specified
in the order; (Added, 10 of 1980,s.8)
(M) providing that
(i) any document purporting to be a copy of any document or notice
and purporting to be signed by a person or his duly authorized agent
shall be admitted in evidence in proceedings before any court or
magistrate on its production by a public officer without further proof; and
(ii) until the contrary is proved, the court or magistrate before which
such document is produced shall presume that the document is a true
copy and that it is signed by that person or his duly authorized agent;
and
(iii) the document shall be conclusive evidence of the facts stated
therein; (Added, 10 of 1980, s. 8)
(hc) providing that any person who works in any place of employment at any
kind of work whatsoever incidental to or connected with the process,
trade or business for which the place of employment is used shall, save as
may be provided otherwise in the regulations, be deemed to be employed
therein for the purposes of any regulations made under this Ordinance or
of any proceedings thereunder; (Added, 10 of 1980, s. 8)
(i) generally, carrying into effect the provisions of this Ordinance.
(2) The Commissioner may in writing, in such cases as he thinks fit and for
such period and subject to such conditions as he may specify, exempt any person
or class of persons from any regulations made under this section.
(3) [Repealed, 24 of 1988, s. 21
(Added, 55 of 1979, s. 2.Amended, 10 of 1980, s. 8)
Penalty for contravention of regulations
74. Regulations under this Ordinance may provide that a contravention thereof
shall be an offence and may provide penalties therefor not exceeding a fine of
$20,000.
(Added, 24 of 1988, s. 2)
FIRST SCHEDULE [s. 31
CONTINUOUS EMPLOYMENT
1.(a) The provisions of this Schedule are to ascertain whether or not any contract of
employment is a 'continuous contract' for the purposes of this Ordinance.
(b)In the case of a contract of employment existing at the commencement of this
Ordinance, such period of employment next preceding the date of commencement of
the Ordinance as may he necessary shall be taken into account in order to ascertain
whether or not the contract of employment is a continuous contract.
2. Subject to the following provisions, where at any time an employee has been employed
under a contract of employment during the period of 4 or more weeks next preceding such time
he shall be deemed to have been in continuous employment during that period.
3.(1) For the purposes of paragraph 2, no week shall count unless the employee has
worked on 4 days or more in that week, and in determining whether he has worked on any day the
provisions of sub-paragraph (2) shall apply.
(2) If on any day the employee is, for the whole or part of the day-
(a) incapable of work inconsequence of sickness or injury; provided that any such
incapability in excess of 48 hours is supported by a certificate issued by a registered
medical practitioner; or
(b)absent from work in circumstances such that, by law, mutual arrangement or the custom
of the trade, business or undertaking, he is regarded as continuing in the employment of
his employer for any purpose,
then, save as provided in paragraph 4 that day shall count as a day on which he has worked.
4. Where an employee is absent from work for the whole or part of any day
(a) because of a strike (which is not illegal) in which he takes part; or
(b) because of a lock-out by his employer,
that day shall not count as a day on which he has worked, but the continuity of his period of
employment shall not be treated as broken by any such absence.
5. If a trade, business or undertaking is transferred from one person to another, the period of
employment of an employee in the trade, business or undertaking at the time of the transfer
shall count as a period of employment with the transferee, and the transfer shall not break the
continuity of the period of employment.
6. For the purposes of this h Schedule
(a) any reference to days on which an employee has worked shall mean days on which
he has worked for his employer whether or not the days were worked under the same or another
contract of employment with that employer and whether or not they were
consecutive days; and
(b)an employee shall be treated as having worked for an employer on any day on which
the employee worked for that employer for not less than 6 hours, whether or not
continuously.
7. In this Schedule, unless the context otherwise requires-
'lock-out' and 'strike', respectively, have the meanings assigned to them in the Trade Unions
Ordinance (Cap. 332);
'week' means a week ending with Saturday.
(Amended, 5 of 1970, s. 9 and 71 of 1970, s.
6)
SECOND SCHEDULE [s. 671
PROCEDURE FOR APPREHENSION OF ABSCONDING EMPLOYER
PART 1
1. In this Part, the wages and moneys described in section 67(a) and (b) are referred to as
'the debt'.
2. An application under section 67 shall be as in Form 1 in Part 11.
3. If a District Judge, after making such investigation as he considers necessary in respect of
an application made under section 67, is satisfied that there is probable cause for believing that
the employer is about to leave Hong Kong with intent to evade payment of the debt, he may
issue a warrant as in Form 2 in Part 11 ordering that the employer be apprehended and brought
before a District Judge to show cause why the employer should not be required to give security in
accordance with paragraph 5. (Amended, 48 of 1984, s. 32)
4. If an employer who is brought before a District Judge in accordance with a warrant issued
under paragraph 3 shows cause why he should not be required to give security in accordance with
paragraph 5, the warrant shall be discharged and the employer shall be released.
5. (1) If an employer who is brought before a District Judge in accordance with a warrant
issued under paragraph 3 does not show cause why he should not be required to give security in
accordance with this paragraph, the District Judge may make an order requiring the employer to
enter a bond, in accordance with sub-paragraph (3), for his appearance before a District Judge
whenever called upon until he has paid to the employee the full amount of the debt.
(2) If the employer offers, in lieu of entering a bond under sub-paragraph (1), to secure the
payment to the employee of the full amount of the debt by any other arrangement, the District
Judge may accept such other arrangement as security for the payment to the employee of the
full amount of the debt in lieu of the bond.
(3) A bond entered under sub-paragraph (1)--
(a) shall be in favour of the employee;
(b) shall be as in Form 3 in Part 11;
(c)shall be for such sum, not exceeding the amount of the debt, as the District Judge may
order, and
(d)shall be a bond with such number of sureties, approved by the District Judge, as the
District Judge may order.
6. If an employer complies with an order made under paragraph 5(1), or secures the
payment to the employee of the full amount of debt by any other arrangement under paragraph
5(2), the warrant issued under paragraph 3 shall be discharged and the employer shall be released.
7. If an employer fails to comply with an order made under paragraph 5(1), a District Judge
may commit him to prison until the order is complied with or until the expiration of 3 months
from the date of committal, whichever event occurs first.
8. (1) On the application of the employer, or of any surety for a bond entered under
paragraph 5, a District Judge, if he is satisfied that any of the conditions specified in sub-
paragraph (2) have been fulfilled, shall order as may be appropriate--
(a) that any warrant issued under paragraph 3 be discharged;
(b)that the employer, if apprehended or brought before a District Judge under paragraph 3,
or committed to prison under paragraph 7, be released;
(c)that any bond entered under paragraph 5 shall be void (notwithstanding the conditions
thereof); and
(d) that the employer be released from any arrangement made under paragraph 5(2).
(2) The conditions referred to in sub-paragraph (1) are-
(a) that the debt has been satisfied in full or has been abandoned;
(b)that no proceedings have been brought within 14 days after the application under section
67 to recover any part of the debt from the employer;
(c)that no proceedings brought to recover the debt or any part of the debt from the
employer have been prosecuted diligently;
(d)that all proceedings brought to recover the debt or any part of the debt from the
employer have been finally struck out or dismissed.
9. (1) Any surety for a bond entered under paragraph 5 may at any time apply to a District
Judge to be discharged from his obligation under the bond.
(2) On receipt of an application under sub-paragraph (1), the District Judge shall call upon
the employer to appear before a District Judge.
(3) On the appearance of the employer before the District Judge, the District Judge shall
order the surety by whom the application under sub-paragraph (1) is made to be discharged from
his obligation under the bond, and shall order the employer to provide another surety or sureties,
approved by the District Judge, for the bond.
(4) If an employer is ordered under sub-paragraph (3) to provide an approved surety or
sureties for a bond, the provisions of paragraphs 6 and 7 shall apply as if the order were an order
made under paragraph 5(1).
10. No fees shall be payable to the District Court in respect of or in connection with an
application made under section 67 or under paragraph 8 or 9.
PART 11
FORM 1 [Employment Ordinance,
Second Schedule, Part 1,
paragraph
21
APPLICATION FOR WARRANT FOR APPREHENSION OF ABSCONDING
EMPLOYER
Title
IN THE DISTRICT COURT OF HONG KONG
Held at ...........................................................
No . .........of 19
IN THE MATTER of an application under section 67 of the Employment Ordinance, for a
warrant for the apprehension of
................................................................
----- ..........----- 1 ..............1 an employer.
EX PARTE ..............................an employee.
.1 . ..........1 Of ....11 1
(name of applicant (address of applicant)
apply for the issue of a warrant in accordance with paragraph 3 of Part 1 of the Second Schedule
to the Employment Ordinance in respect of
..........................................................................................
............................(name of employer)
of ................................
(address of -player)
.......................... 1 ............
(occupation
2. The grounds for my application are-
(a) that 1 am an employee/former employee(1) of
....................................................................
................................(name of of
........................................... ----- -----
(b)..that ................................. is the employer/former
..............----- c of employer)
employer(1) of each person specified in the First Column of the Schedule;
(c)that the employer owes to such employees the wages and/or(1) other moneys specified
in the Second Column of the Schedule opposite their names, by reason of the facts
specified in the Third Column of the Schedule; and
(d)that 1 believe for the following reasons that the employer is about to leave Hong Kong
with intent to evade payment of the wages and/or(1) other moneys specified in the
Second Column of the Schedule
(A ----- ----- ..................... ......... .................................. 1
1
Added, L.N. 48172.Amended, L.N. 177181)
SCHEDULE
Total amount owing to employees
Dated this day of 19
Applicant.
AFFIDAVIT IN SUPPORT OF APPLICATION
. .......................... make oath/do solemnly, sincerely and truly
declare and affirm and say that the facts stated in paragraph 2 of the above application are
correct to the best of my knowledge and belief.
Sworn/affirmed(1) at
Hong Kong, the day of 19 (Amended, L.N. 177181)
Before me,
A Commissioner, &c.
Note: (1) Delete whichever is inapplicable.
FORM 2[Employment Ordinance,
Second Schedule, Part 1,
paragraph 31
WARRANT FOR APPREHENSION OF ABSCONDING EMPLOYER
[Title as in Form 11
To each and all the police officers and bailiffs of Hong Kong. (Amended, L.N. 177181)
Whereas I am satisfied, on application made on the day
of 19 by [name of a
applicant that the applicant
[and the other persons referred to in the application](2) is/are/was/were,( ----- the
employee/employees(l)
of [name of employer] and that there is probable cause for believing that the said [name of
employer]
is about to leave Hong Kong with intent to evade payment of the sum of [amount of debt] being
moneys earned by and owed to such employee/employees(1): (Amended, L.N. 177181)
This is therefore to command you, in Her Majesty's name, forthwith to apprehend
the said [name of employer] and to bring him before a District Judge to show cause why
he the said [name of employer] should not be required to give security in accordance
with paragraph 5 of Part 1 of the Second Schedule to the Employment Ordinance, and
to be further dealt with according to law.
Dated this day of .......19
----- .......... ----
-
...District Judge.
[L.S.]
Notes.. (1) Delete whichever is
inapplicable.
(2) Delete if inapplicable.
FORM 3[Employment Ordinance,
Second Schedule, Part 1,
paragraph 51
BOND TO SECURE PAYMENT OF WAGES DUE To EMPLOYEES BY
EMPLOYER
I/We(1) [name of employer] of [address], [name of surety] of [address], and [name of surety] of
[address], is/are(1) bound to [name of employee] [and the other employees of (name of
employer)
specified in the application of (name of applicant) made on the day of
19 to District Judge 1
under section 67 of the Employment Ordinances](2) in the sum of to
be paid to [name of employee] [and the said other employeesl(2) or his/their respective()
executors,
administrators or assignees; for which payment to be made I/we jointly and
severally(1) bind
myself/ourselves(1), and my/our respective(1)\ heirs, executors and administrators.
In witness whereof I/we(1) have hereto set my hand and seal/our hands and
seals(1)
this day of 19
The condition of this obligation is that if [name of employer] appears before a District
Judge
whenever called upon until he has paid [name of employee] [and the said other
employeesl(2) the full
amount of ----- specified in the application, then this obligation shall be void but
this obligation shall otherwise remain in full force-
Signed, scaled and [Employer] (L.S.)
delivered in the [Surety](L.S.)
presence of [Surety)(L.S.)
Notes: (1) Delete whichever is
inapplicable.
(2) Delete if inapplicable.
(Second Schedule added, 71 of 19 70, s.
7)
THIRD SCHEDULE [s.
31M]
DEATH OF EMPLOYER OR OF EMPLOYEE
PART 1
DEATH OF EMPLOYER
1. This Part shall have effect in relation to an employee where his employer (in
this Part referred to as 'the deceased employer') dies.
2. Section 31J shall not apply to any change whereby the ownership of the
business, for the purposes of which the employee was employed by the deceased
employer, passes to a personal representative of the deceased employer.
3. Where, by virtue of section 31L(1), the death of the deceased employer is to be treated
for the purposes of Part VA of this Ordinance as a termination by him of the contract of
employment, the employee shall nevertheless not be treated for these purposes as having been
dismissed by the deceased employer if
(a)his contract of employment is renewed by a personal representative of the deceased
employer, or he is re-engaged under a new contract of employment by such a personal
representative; and
(b)the renewal or re-engagement takes effect not later than 4 weeks after the death of the
deceased employer.
4. Where, by reason of the death of the deceased employer, the employee is treated for the
purposes of Part VA of this Ordinance as having been dismissed by him, he shall not be entitled
to a severance payment in respect of that dismissal if a personal representative of the deceased
employer has made to him an offer in writing to renew his contract of employment, or to re-
engage him under a new contract, so that in accordance with the particulars specified in the offer
the renewal or re-engagement would take effect not later than 4 weeks after the death of the
deceased employer and either
(a)the provisions of the contract as renewed, or of the new contract, as the case may be,
as to the capacity and place in which he would be employed, and as to the other terms
and conditions of his employment, would not differ from the corresponding provisions
of the contract as in force immediately before the death; or
(b)if, in accordance with the particulars specified in the offer, those provisions would differ
(wholly or in part) from the corresponding provisions of the contract as in force
immediately before the death, the offer constitutes an offer of suitable employment in
relation to that employee,
and (in either case) the employee has unreasonably refused that
offer.
5. For the purposes of paragraph 4-
(a)an offer shall not be treated as one whereby the provisions of the contract as renewed,
or of the new contract, as the case may be, would differ from the corresponding
provisions of the contract as in force immediately before the death of the deceased
employer by reason only that the personal representative would be substituted as the
employer for the deceased employer; and
(b)no account shall be taken of that substitution in determining whether the refusal of the
offer was unreasonable.
6. Where by virtue of section 3 1 L(I) the death of the deceased employer is to be treated as
a termination by him of the contract of employment, any reference in subsection (2) of that
section to section 31D(2) shall be construed as including a reference to paragraph 3.
7. Where by virtue of paragraph 3 the employee is treated as not having been dismissed by
reason of a renewal or re-engagement taking effect after the death of the deceased employer,
then
(a)in determining, for the purposes of section 3 1 B(1), whether he has been employed
under a continuous contract for the requisite period, the interval between the death and
the date on which the renewal or re-engagement takes effect shall count as a period of
employment with the personal representative of the deceased employer, if apart from
this paragraph it would not count for that purpose as such a period of employment; and
(b)in computing the period specified in section 31B(1), the continuity of the employee's
period of employment shall be treated as not being broken by any week which falls
within that interval.
8. For the purposes of the application, in accordance with section 3113(3), of Part VA of
this Ordinance in relation to an employee who was employed as a domestic servant in, or in
connection with, a private household, any reference to a personal representative in this Part of
this Schedule shall be construed as including a reference to any person to whom, otherwise than
in pursuance of a sale or other disposition for valuable consideration, the management of the
household has passed in consequence of the death of the deceased employer.
9. Subject to this Part of this Schedule, in relation to an employer who has died-
(a)any reference in Part VA of this Ordinance to the doing of anything by, or in relation
to, an employer shall be construed as including a reference to the doing of that thing
by, or in relation to, any personal representative of the deceased employer; and
(b)any reference in Part VA of this Ordinance to a thing required or authorized to be done
by, or in relation to, an employer shall be construed as including a reference to anything
which, in accordance with any provision of Part VA of this Ordinance as modified by
this
Part of this Schedule (including sub-paragraph (a) ----- is required or authorized to be
done by, or in relation to, any personal representative of his.
10. Whereby virtue of Part VA of this Ordinance, as modified by this Part of this Schedule,
a personal representative of the deceased employer is liable to pay a severance payment, or part
of a severance payment, and that liability had not accrued before the death of the deceased
employer, it shall be treated for all purposes as if it were a liability of the deceased employer
which had accrued immediately before his death.
PART II
DEATH OF
EMPLOYEE
11. Where an employer has given notice to an employee to terminate his contract of
employment, and before that notice expires the employee dies, Part VA of this Ordinance shall
apply as if the contract had been duly terminated by the employer by notice expiring on the date
of the employee's death.
12. Where an employer has given notice to an employee to terminate his contract of
employment, and has offered to renew his contract of employment, or to re-engage him under a
new contract, and
(a) the employee dies without having either accepted or refused the offer; and
(b) the offer has not been withdrawn before his death,
subsection (2) or (as the case may be) subsection (3) of section 3 1 C shall apply as if, for the
words 'the employee has unreasonably refused', there were substituted the words 'it would have
been unreasonable on the part of the employee to refuse'.
13. In relation to the making of a claim by a personal representative of a deceased
employee who dies before the end of the period of 1 month beginning with the relevant date,
section 3 1 N shall apply with the substitution, for the words '3 months', of the words '6
months'. (Amended, 76 of 1985, s. 9)
14. Subject to this Part of this Schedule, in relation to an employee who has died, any
reference in Part VA of this Ordinance to
(a)the doing of anything by, or in relation to, an employee shall be construed as including a
reference to the doing of that thing by, or in relation to, any personal representative of
the deceased employee; and
(b)a thing required or authorized to be done by, or in relation to, an employee shall be
construed as including a reference to anything which, in accordance with Part VA of this
Ordinance as modified by this Part of this Schedule (including sub-paragraph (a)), is
required or authorized to be done by, or in relation to, any personal representative of his.
15. Any right of a personal representative of a deceased employee to a severance payment,
where that right had not accrued before the employee's death, shall devolve as if it had accrued
before his death.
(Third Schedule added, 67 of 1974, s.
6)
FOURTH SCHEDULE [s. 72(1)l
SPECIFIED
ORDINANCES
Item Title
1. Labour Tribunal Ordinance (Cap. 25).
2. Apprenticeship Ordinance (Cap. 47).
3. Labour Relations Ordinance (Cap. 55).
4. Contracts for Employment Outside Hong Kong Ordinance (Cap. 78).
5. Employees' Compensation Ordinance (Cap. 282).
6. Trade Unions Ordinance (Cap. 332).
7. Pneumoconiosis, (Compensation) Ordinance (Cap. 360).
(Fourth Schedule added, 48 of 1984, s.
33)
FIFTH SCHEDULE [s. 31R1
TABLE
Column 1 Column 2
Age in years of employee Number of years of service of
as at relevant date employee as at relevant date
Less than 41 10
41 9
42 8
43 7
44 6
Not less than 45 5
(Fifth Schedule added, 76 of 1985, s.
10)
SIXTH SCHEDULE [s. 31ZCI
DEATH OF EXPLORER OR OF EMPLOYEE LONG SERVICE
PAYMENTS
PART I
DEALTH OF EMPLOYER
1. This Part shall have effect in relation to an employee where his employer (in this Part referred to
as 'the deceased employer') dies.
2. Section 3 1 Z shall not apply to any change whereby the ownership of the business, for
the purposes of which the employee was employed by the deceased employer, passes to a
personal representative of the deceased employer.
3. Where, by virtue of section 3 1 ZB the death of the deceased employer is to be treated
for the purposes of Part VB of this Ordinance as a termination by him of the contract of
employment, the employee shall nevertheless not be treated for these purposes as having been
dismissed by the deceased employer if
(a)his contract of employment is renewed by a personal representative of the deceased
employer, or he is re-engaged under a new contract of employment by such a personal
representative; and
(b)the renewal or re-engagement takes effect not later than 4 weeks after the death of the
deceased employer.
4. Where by virtue of paragraph 3 the employee is treated as not having been dismissed by
reason of a renewal or re-engagement taking effect after the death of the deceased employer,
then
(a) in determining, for the purposes of section 31R(1),whether he has been employed
under a continuous contract for the requisite number of years of service, the interval between the
death and the date on which the renewal or re-engagement takes effect shall count as a
period of employment with the personal representative of the deceased employer, if
apart from this paragraph it would not count for that purpose as such a period of employment;
and
(b) in computing the number of years of service specified in section 31R(1), the continuity of
the employee's period of employment shall be treated as not being broken by any week
which falls within that interval. R
5. For the purposes of the application, in accordance with section 31R(2), of Part VB of this
Ordinance in relation to an employee who was employed as a domestic servant in, or in
connection with, a private household, any reference to a personal representative in this Part CF
this Schedule shall be construed as including a reference to any person to whom, otherwise than
in pursuance of a sate or other disposition for valuable consideration, the management of the
household has passed in consequence of the death of the deceased employer.
6. Subject to this Part of this Schedule, in relation to an employer who has died
(a)any reference in Part VB of this Ordinance to the doing of anything by, or in relation
to, an employer shall he construed as including a reference to the doing of that thing by,
or in relation to, any personal representative of the deceased employer; and
(b)any reference in Part VB of this Ordinance to a thing required or authorized to be done
by, or in relation to, an employer shall be construed as including a reference to anything
which, in accordance with any provision of Part VB of this Ordinance as modified by~
Part of this Schedule (including sub-paragraph (a) ----- is required or authorized to be done
by, or in relation to, any personal representative of his.
7. Whereby virtue of Part VB of this Ordinance, as modified by this Part of this Schedule,
a personal representative of the deceased employer is liable to pay a long service payment, or
part of a long service payment, and that liability had not accrued before the death of the
deceased employer, it shall be treated for all purposes as if it were a liability of the deceased
employer which had accrued immediately before his death.
PART 11
[Repealed, 52 of 1988, s. 17]
(Sixth Schedule added, 76 of 1985, s- 10)
Abstract
Identifier
https://oelawhk.lib.hku.hk/items/show/2322
Edition
1964
Volume
v6
Subsequent Cap No.
57
Number of Pages
92
Files
Collection
Historical Laws of Hong Kong Online
Citation
“EMPLOYMENT ORDINANCE,” Historical Laws of Hong Kong Online, accessed April 27, 2025, https://oelawhk.lib.hku.hk/items/show/2322.
