Cap. 57 《僱傭條例》Employment Ordinance

(1)

In this Ordinance, unless the context otherwise requires— (Amended 48 of 1984 s. 2)

alternative holiday (另定假日) means a holiday granted or to be granted under section 39(2) and (2A); (Added 39 of 1973 s. 2. Amended 137 of 1997 s. 2) annual leave (年假) means the annual leave provided for in Part VIIIA; (Added 53 of 1977 s. 2) annual leave pay (年假薪酬) 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 (業務) includes a trade or profession and any like activity carried on by a person; (Added 76 of 1985 s. 2) Cap. 599 requirement (《第599章》規定) means a requirement set out in Part 1 of Schedule 12 that imposes a restriction on movement; (Added 5 of 2022 s. 3) cease (停止), 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 (縮減) has a corresponding meaning; (Added 76 of 1985 s. 2) child (兒童) means a person under the age of 15 years; (Replaced 41 of 1990 s. 2) Commissioner (處長) means the Commissioner for Labour and includes a Deputy Commissioner for Labour and an Assistant Commissioner for Labour; (Amended L.N. 142 of 1974; 61 of 1993 s. 2) confinement (分娩) means the delivery of a child; (Added 5 of 1970 s. 3) contract of employment (僱傭合約) 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 (危險藥物) has the meaning assigned to it in the Dangerous Drugs Ordinance (Cap. 134); Director (署長) means the Director of Health; (Added 39 of 1973 s. 2. Amended L.N. 76 of 1989) domestic servant (家庭傭工) includes a garden servant, chauffeur and boat-boy and any other personal servant of a like class; (Added 76 of 1985 s. 2) employee (僱員) means an employee to whom, by virtue of section 4, this Ordinance applies; employer (僱主) 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; employer-funded exempt ORS benefit (僱主供款豁免職業退休計劃利益)—see subsection (4); (Added 4 of 2022 s. 3) employer-funded non-exempt ORS benefit (僱主供款非豁免職業退休計劃利益), in relation to an employee, means an employer-funded ORS benefit of the employee that is not an employer-funded exempt ORS benefit; (Added 4 of 2022 s. 3) employer-funded ORS benefit (僱主供款職業退休計劃利益), in relation to an employee, means a benefit that is— (a)payable under an occupational retirement scheme on the retirement, death, incapacity or termination of service of the employee; and (b)attributable to a contribution made to such a scheme by the employer; (Added 4 of 2022 s. 3) employer-funded (prescribed portion) exempt ORS benefit (僱主供款(訂明部分)豁免職業退休計劃利益)—see subsection (5); (Added 4 of 2022 s. 3) employer-funded (specified) ORS benefit (僱主供款(指明)職業退休計劃利益), in relation to an employee, means— (a)an employer-funded non-exempt ORS benefit of the employee; or (b)an employer-funded (prescribed portion) exempt ORS benefit of the employee; (Added 4 of 2022 s. 3) employer-funded (voluntary) MPFS benefit (僱主供款(自願性)強積金計劃權益), in relation to an employee, means any accrued benefits of the employee that are— (a)held by the approved trustee of a mandatory provident fund scheme in respect of the employee; and (b)attributable to a voluntary contribution (as defined by section 2(1) of the Mandatory Provident Fund Schemes Ordinance (Cap. 485)) made to such a scheme by the employer; (Added 4 of 2022 s. 3) holiday (假日) means— (a)a statutory holiday; (b)an alternative holiday; (c)a substituted holiday; or (d)a day on which an employee is required by section 39(4) to be granted a holiday; (Added 39 of 1973 s. 2. Amended 137 of 1997 s. 2) holiday pay (假日薪酬) means the holiday pay provided for by section 40; (Added 39 of 1973 s. 2) issue (後嗣) 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 (subject to paragraph (ba)) does not include a child of the employee adopted by another person; (Amended 28 of 2004 s. 35) (ba)includes a child of the employee adopted by another person under an adoption order granted under paragraph (c) of section 5(1) of the Adoption Ordinance (Cap. 290) where the employee is the parent referred to in that paragraph; (Added 28 of 2004 s. 35) (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 (勞資審裁處) means the Labour Tribunal established by section 3 of the Labour Tribunal Ordinance (Cap. 25); (Added 76 of 1985 s. 2) lock-out (閉廠) 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 (長期服務金) means the long service payment payable by an employer to an employee under section 31R or to a person entitled to such payment under section 31RA; (Added 76 of 1985 s. 2. Amended 41 of 1990 s. 2) mandatory provident fund scheme (強制性公積金計劃) means a provident fund scheme registered under the Mandatory Provident Fund Schemes Ordinance (Cap. 485); (Added 4 of 1998 s. 5) maternity leave (產假) 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 (產假薪酬) means pay in respect of maternity leave payable to a female employee under section 14; (Added 22 of 1981 s. 2) Minor Employment Claims Adjudication Board (小額薪酬索償仲裁處) means the Minor Employment Claims Adjudication Board established by section 3 of the Minor Employment Claims Adjudication Board Ordinance (Cap. 453); (Added 61 of 1994 s. 49) miscarriage (流產) means the expulsion of the products of conception which are incapable of survival after being born before 24 weeks of pregnancy; (Added 22 of 1981 s. 2. Amended 13 of 2020 s. 3) occupational retirement scheme (職業退休計劃) means a scheme or arrangement under which benefits, based on length of service, are payable in respect of employees on retirement, death, incapacity or termination of service, but does not include a mandatory provident fund scheme; (Added 4 of 1998 s. 5) outworker (外發工) 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 management of the person who gave out the articles or materials; (Added 76 of 1985 s. 2) paid sickness day (有薪病假日) means a sickness day in respect of which an employee is entitled to be paid sickness allowance; (Added 39 of 1973 s. 2) paternity leave (侍產假) means the paternity leave provided for in Part IIIA; (Added 21 of 2014 s. 3) paternity leave pay (侍產假薪酬) means pay payable in respect of paternity leave; (Added 21 of 2014 s. 3) recognized scheme of medical treatment (認可醫療計劃) 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) registered Chinese medicine practitioner (註冊中醫) has the meaning assigned to it by section 2 of the Chinese Medicine Ordinance (Cap. 549); (Added 16 of 2006 s. 2) registered dentist (註冊牙醫) has the same meaning as in section 2(1) of the Dentists Registration Ordinance (Cap. 156); (Added 5 of 1995 s. 2) registered medical practitioner (註冊醫生) has the same meaning as in section 2 of the Medical Registration Ordinance (Cap. 161); (Added 61 of 1993 s. 2) relevant date (有關日期), 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 (續訂) includes extension, and any reference to renewing a contract shall be construed accordingly; (Added 76 of 1985 s. 2) rest day (休息日) 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 (遣散費) means the severance payment payable by an employer to an employee under section 31B(1); (Added 76 of 1985 s. 2) sickness allowance (疾病津貼) means the sickness allowance provided for by section 33; (Added 39 of 1973 s. 2) sickness day (病假日)—(a)means a day on which an employee is absent from the employee’s work by reason of the employee being unfit for work on account of injury or sickness; and(b)includes a day on which an employee is absent from the employee’s work by reason of the employee’s compliance with a Cap. 599 requirement; (Replaced 5 of 2022 s. 3) specified employee (指明僱員) means an employee in relation to whom the conditions under section 31ZEA(2)(a), (b) and (c) are met; (Added 4 of 2022 s. 3) spouse (配偶) means, in relation to a married employee, the person to whom the employee is lawfully married; (Added 52 of 1988 s. 2) statutory holiday (法定假日) means a holiday specified as a statutory holiday in section 39(1); (Added 39 of 1973 s. 2. Amended 71 of 1976 s. 2; 137 of 1997 s. 2) strike (罷工) has the meaning assigned to it by section 2 of the Trade Unions Ordinance (Cap. 332); (Added 76 of 1985 s. 2) substituted holiday (代替假日) means a holiday granted or to be granted under section 39(3); (Added 39 of 1973 s. 2. Amended 137 of 1997 s. 2) tips and service charges (小費及服務費), 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) transition date (轉制日) means the date on which the Employment and Retirement Schemes Legislation (Offsetting Arrangement) (Amendment) Ordinance 2022 (4 of 2022) comes into operation ; (Added 4 of 2022 s. 3) wage period (工資期) means the period in respect of which wages are payable under a contract of employment or under section 22; wages (工資), subject to subsections (2) and (3), means all remuneration, earnings, allowances including travelling allowances and attendance allowances, attendance bonus, commission, overtime pay, 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; 76 of 1985 s. 2; 74 of 1997 s. 3) (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 retirement scheme; (Amended 41 of 1990 s. 2) (c)any commission which is of a gratuitous nature or which is payable only at the discretion of the employer; (Replaced 74 of 1997 s. 3) (ca)any attendance allowance or attendance bonus which is of a gratuitous nature or which is payable only at the discretion of the employer; (Added 74 of 1997 s. 3) (cb)any travelling allowance which is of a non-recurrent nature; (Added 74 of 1997 s. 3) (cc)any travelling allowance payable to the employee to defray actual expenses incurred by him by the nature of his employment; (Added 74 of 1997 s. 3) (cd)the value of any travelling concession; (Added 74 of 1997 s. 3) (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; week (星期), for the purposes of section 11 and Parts VA and VB, means the period between midnight on Saturday night and midnight on the succeeding Saturday night; (Added 76 of 1985 s. 2. Amended 41 of 1990 s. 2) young person (青年) means a person who has attained the age of 15 years but not the age of 18 years. (Replaced 41 of 1990 s. 2)

(2)

No account of overtime pay shall be taken in calculating the wages of an employee for the purpose of—

unless the overtime pay is of a constant character or the monthly average of the overtime pay over a period of 12 months (or if not applicable, such shorter period of employment) immediately preceding the respective dates specified in subsections (2A) and (2B) is equivalent to or exceeds 20% of his average monthly wages during the same period. (Added 48 of 1984 s. 2. Amended 74 of 1997 s. 3)

(2A)

In the calculation of the monthly average of the overtime pay under subsection (2), the date specified for the purpose of that subsection is—

(2B)

Notwithstanding anything contained in subsection (2A), the date specified for the purpose of subsection (2) in relation to any termination of employment is—

(3)

Where an employee who has been employed under a continuous contract—

and for any period of that contract he had not been paid his wages, or his full wages, by reason of any leave taken by him in accordance with the provisions of this Ordinance or the Employees’ Compensation Ordinance (Cap. 282) or with the agreement of his employer, or by reason of his not being provided by his employer with work on any normal working day, then the employee shall be deemed, for the purposes of Parts VA and VB and notwithstanding any other 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. (Replaced 62 of 1992 s. 2)

(4)

For the purposes of this Ordinance, an employer-funded ORS benefit of an employee payable under an occupational retirement scheme is an employer-funded exempt ORS benefit of the employee if the employee—

(5)

For the purposes of this Ordinance, an employer-funded exempt ORS benefit of an employee is, to the extent that its amount exceeds the reference amount calculated in accordance with the following formula, an employer-funded (prescribed portion) exempt ORS benefit of the employee—

A = B × C × 5% × 12

where—
A	means the reference amount;
B	means the employee’s final average monthly relevant income; and
C	means the number of the employee’s years (and pro rata for an incomplete year) of service to which the employer-funded exempt ORS benefit is attributable.

(Added 4 of 2022 s. 3)

(6)

In subsection (5)—

final average monthly relevant income (最終每月平均有關入息), in relation to an employee— (a)if the occupational retirement scheme under which the employer-funded exempt ORS benefit concerned is payable in respect of the employee is a relevant scheme (as defined by section 1(1) of Schedule 2 to the Mandatory Provident Fund Schemes (Exemption) Regulation (Cap. 485 sub. leg. B))—has the meaning given by that section; or (b)in any other case—means the amount that is equivalent to the relevant income per month for the definition of final average monthly relevant income in that section that would be obtained by applying paragraph (a)(i) of that definition in relation to the employee on the basis that the employee were a member of a relevant scheme falling within paragraph (a) of that definition. (Added 4 of 2022 s. 3)

(1) In this Ordinance, continuous contract (連續性合約) 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.

(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)

(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.

(1)

The Chief Executive 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 Chief Executive under subsection (1).

(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.

(1)

Subject to subsections (2), (2A), (2B), (3) and (3A) and sections 15 and 33, 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; 55 of 1987 s. 2; 103 of 1995 s. 2; 7 of 2001 s. 2)

(2)

The length of notice required to terminate a contract of employment shall be—

(2A)

Without prejudice to section 41D, annual leave to which an employee is entitled under section 41AA 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. Amended 53 of 1990 s. 5)

(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)

(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—

(4) For the purposes of this section the expression month (月) 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.

(1) For the purposes of subsections (1A), (1B) and (1C), wages (工資) includes any sum paid by an employer in respect of—(a)a day of maternity leave, a day of paternity leave, a rest day, a sickness day, a holiday or a day of annual leave taken by the employee; (Amended 21 of 2014 s. 4)(b)a day of leave taken by the employee with the agreement of his employer;(c)a normal working day on which the employee is not provided with work;(d)a day of absence from work of the employee due to temporary incapacity for which compensation is payable under section 10 of the Employees’ Compensation Ordinance (Cap. 282). (Replaced 7 of 2007 s. 3)

(1A)

Subject to sections 15 and 33, either party to a contract of employment may at any time terminate the contract without notice by agreeing to pay to the other party—

(1B)

In calculating the daily average or monthly average of the wages earned by an employee during the period of 12 months or the shorter period—

are to be disregarded. (Added 7 of 2007 s. 3)

(1C)

For the avoidance of doubt, if the amount of the wages paid to an employee in respect of a day specified in subsection (1) is only a fraction of the amount earned by the employee on a normal working day, the wages and the day are to be disregarded in accordance with subsection (1B). (Added 7 of 2007 s. 3)

(1D)

Despite subsection (1A), if for any reason it is impracticable to calculate the daily average or monthly average of the wages earned by an employee in the manner provided in that subsection, the amount may be calculated by reference to the wages earned by a person who was employed at the same work by the same employer during the period of 12 months immediately before the date of notification, or, if there is no such person, by a person who was employed in the same trade or occupation and at the same work in the same district during the period of 12 months immediately before the date of notification. (Added 7 of 2007 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)

(Repealed 7 of 2007 s. 3)

(4) For the purposes of this section, and notwithstanding any other provision of this Ordinance, the term wages (工資)—(a)includes overtime pay of a constant character or the monthly average of which over a period of 12 months (or if not applicable, such shorter period of employment) immediately preceding the date on which the termination takes effect is equivalent to or exceeds 20% of his monthly average wages during the same period;(b)except as provided in paragraph (a), shall be deemed not to include overtime pay. (Replaced 74 of 1997 s. 4)

(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 that would have been payable had the contract been terminated in accordance with section 7 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 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 shall be payable by the party terminating the contract to the other party.

(3)

For the purpose of calculating the sum referred to in subsection (1), where the party terminating the contract has not given notice of the termination to the other party, in calculating the daily average or monthly average of the wages earned by the employee in accordance with section 7, the reference in that section to the date on which the party terminating the contract gives notice of the termination to the other party or to the date of notification is to be construed as a reference to the date of termination of the contract. (Added 7 of 2007 s. 4)

(1)

An employer may terminate a contract of employment without notice or payment in lieu— (Amended 51 of 2000 s. 2)

(2)

The fact that an employee takes part in a strike does not entitle his employer to terminate under subsection (1) the employee’s contract of employment. (Added 51 of 2000 s. 2)

(1)

Without prejudice to the rights of an employee under common law, an employee may terminate his contract of employment without notice or payment in lieu of notice if any wages are not paid within one month from the day on which they become due to him under section 23.

(2)

Where a contract of employment is terminated under subsection (1), the contract shall be deemed to be terminated by the employer in accordance with section 7 and the employer shall be deemed to have agreed to pay to the employee the sum specified in section 7.

(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—

(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.

(4)

Notwithstanding subsection (3), the period of lay-off shall in no case exceed—

(1)

In this Part, unless the context otherwise requires— (Amended 7 of 2007 s. 5)

end of year payment (年終酬金) means any annual payment (whether described as “thirteenth month payment”, “fourteenth month payment”, “double pay”, “end of year bonus” or otherwise) or annual bonus of a contractual nature, but does not include any annual payment or any annual bonus, or any proportion thereof, which is of a gratuitous nature or which is payable only at the discretion of the employer; (Amended 74 of 1997 s. 6) lunar year (農曆年) means a Chinese lunar year ending immediately before a Lunar New Year’s Day; payment period (酬金期) has the meaning assigned to it by section 11C; proportion of the end of year payment (部分年終酬金) means the proportion of the end of year payment calculated in accordance with section 11F.

(Amended 7 of 2007 s. 5)

(2) For the purposes of subsections (3), (4) and (5), wages (工資) includes any sum paid by an employer in respect of— (a)a day of maternity leave, a day of paternity leave, a rest day, a sickness day, a holiday or a day of annual leave taken by the employee; (Amended 21 of 2014 s. 5) (b)a day of leave taken by the employee with the agreement of his employer; (c)a normal working day on which the employee is not provided with work; (d)a day of absence from work of the employee due to temporary incapacity for which compensation is payable under section 10 of the Employees’ Compensation Ordinance (Cap. 282). (Added 7 of 2007 s. 5)

(3)

In this Part, a reference to the full month’s wages of an employee is to be construed as a reference to the monthly average of the wages earned by the employee during—

(4)

In calculating the monthly average of the wages earned by an employee during the period of 12 months or the shorter period—

are to be disregarded. (Added 7 of 2007 s. 5)

(5)

For the avoidance of doubt, if the amount of the wages paid to an employee in respect of a day specified in subsection (2) is only a fraction of the amount earned by the employee on a normal working day, the wages and the day are to be disregarded in accordance with subsection (4). (Added 7 of 2007 s. 5)

(6)

Despite subsection (3), if for any reason it is impracticable to calculate the monthly average of the wages earned by an employee in the manner provided in that subsection, the amount may be calculated by reference to the wages earned by a person who was employed at the same work by the same employer during the period of 12 months immediately before the due day, or, if there is no such person, by a person who was employed in the same trade or occupation and at the same work in the same district during the period of 12 months immediately before the due day. (Added 7 of 2007 s. 5)

(1)

It shall be presumed that an annual payment or annual bonus is not of a gratuitous nature and is not payable only at the discretion of the employer unless there is a written term or condition in the contract of employment to the contrary.

(2)

For the avoidance of doubt, it is hereby declared that subsection (1) shall not apply to any contract of employment made before the commencement* of this section.

(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 11F of a proportion of the end of year payment shall be void.

(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—

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—

and shall be paid as soon as is practicable but in any case not later than 7 days after that day.

(1)

Subject to subsections (1A) and (1B), 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 3 months in the payment period— (Amended 74 of 1997 s. 8; 7 of 2001 s. 4)

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.

(1A)

If it is a term or condition of a contract of employment that the employee is on probation, the period of such probation or a period of 3 months, whichever is the shorter, shall be excluded from the calculation of the 3 months’ period under subsection (1). (Added 74 of 1997 s. 8)

(1B)

Subsection (1)(a) shall not apply where a contract of employment is terminated—

(2)

The proportion of the end of year payment payable under subsection (1) shall be—

(3)

The proportion of the end of year payment payable under subsection (1) shall become due to the employee—

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—

and shall be paid as soon as is practicable but in any case not later than 7 days after that day.

(1)

A female employee employed under a continuous contract immediately before taking any leave under this Part shall be entitled to maternity leave under this Part. (Replaced 73 of 1997 s. 3)

(2)

Maternity leave shall be the aggregate of—

(3)

The period of maternity leave under subsection (2)(c) may be taken—

(4)

Before taking leave, a female employee who intends to take any period of maternity leave under subsection (2) shall give notice of her pregnancy and of her intention to take maternity leave to her employer after her pregnancy has been confirmed by a medical certificate; the presentation of a medical certificate to the employer by the female employee confirming her pregnancy shall be a notice for the purpose of this subsection. (Replaced 73 of 1997 s. 3)

(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 practicable. (Added 55 of 1987 s. 3)

(5)

If her confinement takes place—

the female employee shall, within 7 days of her confinement, give notice to her employer of the date of confinement and of her intention to take any period of maternity leave under subsection (2)(a). (Replaced 73 of 1997 s. 3)

(6)

A female employee who gives notice under subsection (4) shall, if so required by her employer, produce a medical certificate specifying the expected date of confinement. (Replaced 73 of 1997 s. 3)

(7)

A female employee who gives notice under subsection (5) shall, if so required by her employer, produce a medical certificate specifying the date of confinement. (Replaced 73 of 1997 s. 3)

(7A)

A female employee who may take any period of maternity leave under subsection (2)(b) shall, if so required by her employer, produce a medical certificate specifying the date of confinement. (Added 73 of 1997 s. 3)

(8)

A female employee who intends to take any period of maternity leave under subsection (2)(c) 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. (Amended 73 of 1997 s. 3)

(9)

(Repealed 73 of 1997 s. 3)

(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)

(1)

With the agreement of her employer, a pregnant employee may decide on the date of commencement of her maternity leave for the purposes of section 12(2)(a)(i), provided that such date is within a period of not less than 2 weeks before, and not more than 4 weeks before, the expected date of confinement. (Amended 13 of 2020 s. 5)

(2)

If the employee does not exercise her option to decide on the date of commencement in subsection (1), or if she fails to secure her employer’s agreement to her proposed leave schedule, the date of commencement of maternity leave shall be 4 weeks immediately before the expected date of confinement.

(1)

A medical certificate for the purposes of section 12(4) or (6) or 12AA shall be issued by—

(2)

A medical certificate for the purposes of section 12(7) or (7A) shall be issued by—

(3)

A medical certificate for the purposes of section 12(8) or 15AA shall be issued by—

(1)

A female employee shall not be 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)

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) if she— (Amended 73 of 1997 s. 6)

(3) For the purposes of subsections (3A), (3B) and (3C), wages (工資) includes any sum paid by an employer in respect of— (a)a day of maternity leave, a rest day, a sickness day, a holiday or a day of annual leave taken by the employee; (b)a day of leave taken by the employee with the agreement of her employer; (c)a normal working day on which the employee is not provided with work; (d)a day of absence from work of the employee due to temporary incapacity for which compensation is payable under section 10 of the Employees’ Compensation Ordinance (Cap. 282). (Replaced 7 of 2007 s. 6)

(3A)

Subject to subsection (3E), maternity leave pay payable under this section is to be calculated at four-fifths of the daily average of the wages earned by the female employee during— (Amended 13 of 2020 s. 6)

but no maternity leave pay is payable in respect of a day on which the female employee would not have worked had she not been on maternity leave and for which no wages would normally be payable by the employer. (Added 7 of 2007 s. 6)

(3B)

In calculating the daily average of the wages earned by a female employee during the period of 12 months or the shorter period—

are to be disregarded. (Added 7 of 2007 s. 6)

(3C)

For the avoidance of doubt, if the amount of the wages paid to a female employee in respect of a day specified in subsection (3) is only a fraction of the amount earned by the employee on a normal working day, the wages and the day are to be disregarded in accordance with subsection (3B). (Added 7 of 2007 s. 6)

(3D)

Despite subsection (3A), if for any reason it is impracticable to calculate the daily average of the wages earned by a female employee in the manner provided in that subsection, the amount may be calculated by reference to the wages earned by a person who was employed at the same work by the same employer during the period of 12 months immediately before the date of commencement of the employee’s maternity leave, or, if there is no such person, by a person who was employed in the same trade or occupation and at the same work in the same district during the period of 12 months immediately before the date of commencement of the employee’s maternity leave. (Added 7 of 2007 s. 6)

(3E)

The maximum amount of maternity leave pay payable for the latter period of maternity leave under this section is the amount specified in Schedule 1A. (Added 13 of 2020 s. 6)

(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) shall forfeit her entitlement to maternity leave pay during that period of maternity leave. (Amended 73 of 1997 s. 6)

(6)

(Repealed 73 of 1997 s. 6)

(7)

If, pursuant to the terms of her contract of employment or any other agreement or for any other reason, a female employee is paid by her employer a sum of money in respect of any period of her maternity leave, the maternity leave pay payable to the employee in respect of that period (including, for the latter period of maternity leave, after the application of subsection (3E)) is to be reduced by that sum. (Added 7 of 2007 s. 6. Amended 13 of 2020 s. 6)

(8)

The Commissioner may, by notice published in the Gazette, amend the amount specified in Schedule 1A. (Added 13 of 2020 s. 6)

(9)

In this section—

latter period of maternity leave (產假末段期間), in relation to a female employee, means the period of maternity leave taken by the employee and to which the employee is entitled under section 12(2)(a), but does not include the first 10 weeks of the period. (Added 13 of 2020 s. 6)

(1)

Subject to subsections (1A) and (1B)—

(1A)

Where in a contract of employment of a pregnant employee, whether in writing or oral, it has been expressly agreed that the employment is on probation, subsection (1) shall not prevent the termination by an employer of such contract for reasons other than pregnancy during the period of probation if the period does not exceed 12 weeks, or during the first 12 weeks of probation if the period of probation exceeds 12 weeks. (Replaced 73 of 1997 s. 7)

(1B)

An employer who terminates the continuous contract of employment of a pregnant employee shall be taken for the purposes of subsection (1)(a) or (b) to terminate the contract otherwise than in accordance with section 9—

(1C)

Subsection (1B)(b) shall not apply in the case of civil proceedings. (Added 7 of 2001 s. 5)

(1D) For the purposes of subsections (2)(b), (2A) and (2B), wages (工資) includes any sum paid by an employer in respect of—(a)a day of maternity leave, a rest day, a sickness day, a holiday or a day of annual leave taken by the employee;(b)a day of leave taken by the employee with the agreement of her employer;(c)a normal working day on which the employee is not provided with work;(d)a day of absence from work of the employee due to temporary incapacity for which compensation is payable under section 10 of the Employees’ Compensation Ordinance (Cap. 282). (Added 7 of 2007 s. 7)

(2)

An employer who contravenes subsection (1)(a) or (b) shall be liable to pay to the female employee— (Amended 7 of 2001 s. 5)

(2A)

In calculating the monthly average of the wages earned by a female employee during the period of 12 months or the shorter period—

are to be disregarded. (Added 7 of 2007 s. 7)

(2B)

For the avoidance of doubt, if the amount of the wages paid to a female employee in respect of a day specified in subsection (1D) is only a fraction of the amount earned by the employee on a normal working day, the wages and the day are to be disregarded in accordance with subsection (2A). (Added 7 of 2007 s. 7)

(2C)

Despite subsection (2)(b), if for any reason it is impracticable to calculate the monthly average of the wages earned by a female employee in the manner provided in that subsection, the amount may be calculated by reference to the wages earned by a person who was employed at the same work by the same employer during the period of 12 months immediately before the date of termination of the employee’s contract of employment, or, if there is no such person, by a person who was employed in the same trade or occupation and at the same work in the same district during the period of 12 months immediately before the date of termination of the employee’s contract of employment. (Added 7 of 2007 s. 7)

(3)

(Repealed 7 of 2007 s. 7)

(4)

Any employer who contravenes subsection (1)(a) or (b) shall be guilty of an offence and shall be liable on conviction to a fine at level 6. (Replaced 7 of 2001 s. 5)

(1)

A pregnant employee may, on producing a medical certificate with an opinion as to her unfitness to handle heavy materials, or to work in places where gas injurious to pregnancy is generated, or to do other work injurious to pregnancy, request her employer to refrain from giving her such work during her pregnancy period.

(2)

On receipt of a request under subsection (1), the employer may not allocate to the employee the work specified in the medical certificate and, if the employee is already performing such work, the employer shall remove her from such work as soon as practicable but in any case not later than 14 days after the date of the receipt of the request under subsection (1) notwithstanding that—

may be pending.

(3)

Where an employee has produced a medical certificate for the purposes of subsection (1), the employer may arrange for the employee to attend another medical examination, at the employer’s expense, to obtain a second opinion as to the employee’s fitness to undertake the work at issue. (Replaced 16 of 2006 s. 5)

(3A)

A medical examination referred to in subsection (3) shall be conducted by a registered medical practitioner or registered Chinese medicine practitioner named by the employer, regardless of whether the medical certificate produced by the employee was issued by a registered medical practitioner or registered Chinese medicine practitioner. (Added 16 of 2006 s. 5)

(4)

The employer shall give the employee at least 48 hours’ notice of the examination under subsection (3) which is to be carried out within a period of 14 days after the date of the receipt of the employee’s request made under subsection (1).

(5)

If the second medical opinion provides that the employee is fit to do the specified work referred to in subsection (1) or if the employee refuses to attend the medical examination as arranged by the employer under subsection (3), the employer may refer the employee’s request made under subsection (1) to the Commissioner; the Commissioner shall take appropriate action, including seeking further medical advice, to assist him in bringing about a determination.

(6)

When the Commissioner receives the employer’s reference under subsection (5), he may make a determination to—

(7)

The employer and the employee concerned in the reference shall comply with any determination made by the Commissioner.

(8)

Despite any change in the earnings of the employee as a result of her transfer from heavy, hazardous or harmful work in accordance with this section, payment for maternity leave under section 14(3A) or payment for termination of employment under section 15(2)(a), (b) or (c) is to be calculated on the basis of the daily average or monthly average (as appropriate) of the wages earned by the employee during—

and those sections are to be construed accordingly. (Replaced 7 of 2007 s. 8)

(9)

Where—

for the purpose of the calculation, the reference in section 7(1D), 14(3D) or 15(2C) to a person who was employed at the same work is to be construed as a reference to a person who was employed at the work performed by the employee immediately before her transfer. (Added 7 of 2007 s. 8)

(1)

Any employer who fails to—

shall be guilty of an offence and shall be liable on conviction to a fine at level 5. (Amended 24 of 1988 s. 2; 103 of 1995 s. 4)

(2)

Any employer who, without any reasonable excuse, fails to comply with—

shall be guilty of an offence and shall be liable on conviction to a fine at level 5. (Replaced 73 of 1997 s. 9)

(1)

A male employee is entitled to paternity leave in respect of the birth of a child if—

(2)

For subsection (1), the employee—

(3)

For subsection (2)(a), the period—

(4)

For subsection (2)(b), multiple births in one pregnancy are taken to be one confinement.

(5)

Subsection (1) does not apply in relation to—

(1)

For section 15E(1)(c), an employee who intends to take paternity leave in respect of the birth of a child must—

(2)

If the employer so requires, the employee must also give the employer a written statement signed by the employee—

(1)

Paternity leave is in addition to rest days, holidays and annual leave to which an employee is entitled under this Ordinance.

(2)

If—

he is entitled to take the leave on the day immediately after the rest day, holiday or period of annual leave.

(3)

Despite subsection (2), the employee is entitled to take the leave on another day he chooses if he has notified the employer of his choice at least 2 days before that other day.

(4)

The employee is entitled to take leave on the day mentioned in subsection (2) even if that day falls on a day after the 14-week period mentioned in section 15E(3)(b). (Amended 13 of 2020 s. 9)

(5)

However, subsection (3) does not entitle the employee to take leave on a day that falls on a day outside the period specified in section 15E(3).

(1)

In this section—

specified date (指明日期), in relation to paternity leave taken by an employee, means—(a)if the leave is taken in a period of consecutive days, the date on which that period begins; or(b)in any other case, the date on which the leave is taken; wages (工資), in subsections (2), (3) and (4), includes a sum of money paid by an employer in respect of any of the following days—(a)a day of paternity leave, a rest day, a sickness day, a holiday or a day of annual leave taken by the employee;(b)a day of leave taken by the employee with the agreement of the employer;(c)a normal working day on which the employee is not provided with work by the employer;(d)a day of absence from work of the employee due to temporary incapacity for which compensation is payable under section 10 of the Employees’ Compensation Ordinance (Cap. 282).

(2)

The daily rate of paternity leave pay is four-fifths of the employee’s average daily wages during—

(3)

The average daily wages are to be calculated without regard to—

(4) To avoid doubt, if the amount of the wages paid to an employee in respect of a day covered by the definition of wages in subsection (1) is only a fraction of the amount earned by the employee on a normal working day, the employee’s average daily wages are to be calculated without regard to the wages and the day.

(5)

Despite subsection (2), if for any reason it is impracticable to calculate an employee’s average daily wages in the manner provided in that subsection, the amount may be calculated by reference to—

(6)

If, under the employee’s contract of employment or any other agreement or for any other reason, the employer pays a sum of money to the employee in respect of a day on which the employee takes paternity leave, the paternity leave pay payable to the employee in respect of the day under this Part is to be reduced by the sum.

(1)

For section 15H(b), an employee who takes paternity leave in respect of the birth of a child in Hong Kong must provide the employer with the birth certificate of the child—

(2)

Despite subsection (1), if the child is born dead, or if the child dies after birth and no birth certificate has been issued in respect of the child under the Births and Deaths Registration Ordinance (Cap. 174), the employee must provide the employer with—

(3)

For subsection (2)(a), the medical certificate—

(4)

The documents required under this section must be provided to the employer—

(1)

For section 15H(b), an employee who takes paternity leave in respect of the birth of a child in a place outside Hong Kong must provide the employer with—

(2)

Despite subsection (1), if the child is born dead or dies after birth, and neither the birth certificate nor document mentioned in that subsection is available, the employee must provide the employer with—

(3)

The documents required under this section must be provided to the employer—

(1)

In this section—

requisite document (所需文件), in relation to an employee who has taken paternity leave on a day, means the document required under section 15J or 15K for his entitlement to paternity leave pay in respect of the day.

(2) If an employee has taken paternity leave on a day (leave day) and provided the employer with the requisite document on or before the leave day, the employer must pay him the paternity leave pay in respect of the leave day—(a)not later than the day on which he is next paid his wages after the leave day; or(b)if he has ceased to be employed by the employer, not later than 7 days after the cessation.

(3)

If the employee provides the employer with the requisite document after the leave day, the employer must pay him the paternity leave pay in respect of the leave day—

(4)

Where the employer has paid the employee the paternity leave pay in respect of the leave day before the requisite document is provided, the employer may deduct from his wages an amount equivalent to the paternity leave pay if—

(5)

If after the deduction the employee provides the employer with the requisite document in accordance with section 15J(4) or 15K(3), the employer must pay him the paternity leave pay in respect of the leave day again—

(1)

An employer must—

(2)

An employer who without reasonable excuse contravenes subsection (1) commits an offence and is liable on conviction to a fine at level 5.

(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 section 39. (Replaced 39 of 1973 s. 3)

(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 commencement 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—

(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.

(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.

(1)

Every employee shall as between himself and his employer have the following rights—

(2)

Any employer, or any person acting on behalf of an employer, who—

shall be guilty of an offence and shall be liable on conviction to a fine at level 6. (Amended 24 of 1988 s. 2; 103 of 1995 s. 5)

(3)

In this section—

appropriate time (適當時間) 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 (工作時間) 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. 1971 c. 72 s. 5(1), (2) & (5) U.K.]

(1)

Subject to section 31O, 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; 67 of 1974 s. 4)

(2)

The sum referred to in subsection (1) shall be—

(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 44 of 1971 s. 4. Amended 14 of 1975 s. 3; 48 of 1984 s. 12)

(1)

Subject to subsection (3), if any wages or any sum referred to in section 25(2)(a) are not paid within 7 days from the day on which they become due under sections 23, 24 and 25, the employer shall pay interest at the rate specified in subsection (2) on the outstanding amount of wages or sum from the date on which such wages or sum become due up to the date of actual payment.

(2)

The rate of interest specified for the purpose of subsection (1) shall be the rate fixed by the Chief Justice by notice in the Gazette under section 50 of the District Court Ordinance (Cap. 336).

(3)

No interest shall be payable in respect of any period before the commencement* of this section.

(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—

(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, fixed odds betting or pari-mutuel betting organized or conducted with the permission or authorization under the Betting Duty Ordinance (Cap. 108) as remuneration for his services. (Amended 17 of 2006 s. 23)

(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.

(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)

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—

(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. 1965 c. 62 ss. 1 & 19(1) U.K.]

(1)

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. (Amended 51 of 2000 s. 3)

(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—

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—

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)(b) and subsection (3)(c) to the relevant date shall be construed as references to the next day after that rest day or holiday. (Amended 75 of 1997 s. 2)

(5)

An employee shall not be entitled to a severance payment by reason of dismissal where, having been given notice of the termination of his contract of employment by his employer in accordance with section 6, he leaves the service of his employer before the expiration of that notice unless he so leaves—

(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—

(2)

An employee shall not be taken for the purposes of this Part to be dismissed by his employer if—

(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. 1965 c. 62 s. 3 U.K.]

(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 31B(1) be taken to be laid off where the total number of days on each of which such work is not provided for him by the employer exceeds—

and he is not paid a sum equivalent to the wages which he would have earned if work had been provided on the days on which no work was provided. (Amended 41 of 1990 s. 8)

(1A)

Notwithstanding subsection (1), 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, a statutory holiday or a day of annual leave, shall not be taken into account as normal working days in determining whether an employee has been laid off. (Added 41 of 1990 s. 8. Amended 61 of 1993 s. 4)

(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 (有關日期) 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 or 26 consecutive weeks, as the case may be, referred to in subsection (1) has expired. (Amended 41 of 1990 s. 8)

[cf. 1965 c. 62 s. 5(1) U.K.]

(1)

Subject to this Part, the amount of a severance payment to which an employee is entitled shall be calculated by allowing— (Amended 4 of 2022 s. 4)

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, where the relevant date occurs in a period specified in column 1 of Table A in the Seventh Schedule, the amount specified in column 2 of that table opposite to the period. (Amended 5 of 1995 s. 6)

(1A)

(Repealed 4 of 2022 s. 4)

(2)

Despite subsection (1), the employee may, for a calculation under that subsection, elect to have the employee’s wages averaged over the period of 12 months immediately preceding the relevant date as if—

(2A)

For calculating the average daily wages under subsection (2)(b), the total wages for the period of 12 months must not exceed 12 times $22,500. (Added 4 of 2022 s. 4)

(3)

(Repealed 4 of 2022 s. 4)

(1)

This section applies if—

(2)

The severance payment is to be reduced by the aggregate amount of every one of the gratuities and benefits referred to in subsection (1)(b) to the extent that it relates to the employee’s years of service for which the severance payment is payable.

(1)

This section applies if—

(1A)

The aggregate amount of every one of the gratuities and benefits referred to in subsection (1)(a) is to be reduced by the whole amount of the severance payment to the extent that it is attributable to the same years of service as those for which the severance payment is payable. (Added 4 of 2022 s. 6)

(2)

Subsection (1A) has effect even though the years of service for which the severance payment was made exceed those to which the gratuity or benefit is attributable. (Amended 4 of 2022 s. 6)

(3)

(Repealed 4 of 2022 s. 6)

(1)

This section shall have effect where—

(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 31D(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 31C(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 31C(2) or (3) in relation to an offer made by the new owner—

(5)

This section shall have effect (subject to the necessary modifications) in relation to a case where—

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. 1965 c. 62 s. 13 U.K.]

(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—

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 (相聯公司) shall be construed accordingly.

(6)

In this section—

company (公司) has the meaning given by section 2(1) of the Companies Ordinance (Cap. 622); subsidiary (附屬公司) has the meaning given by section 15 of the Companies Ordinance (Cap. 622) for the purposes of that Ordinance. (Replaced 28 of 2012 ss. 912 & 920)

[cf. 1965 c. 62 s. 48 U.K.]

(1)

Where in accordance with any enactment or rule of law—

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 31D(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 31B(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 31D(2) includes a reference to section 31D(2) as applied by section 31J(2).

[cf. 1965 c. 62 s. 22 U.K.]

(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—

(1A)

(Repealed 9 of 2010 s. 3)

(2)

A severance payment shall be made in legal tender except that, where the employee so consents, payment may be made—

(3)

(1)

On making any severance payment, otherwise than in pursuance of a decision of the Minor Employment Claims Adjudication Board or 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. (Amended 61 of 1994 s. 52)

(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—

(1)

Where an employee who has been employed under a continuous contract—

the employer shall, subject to this Part and Part VC, pay to the employee a long service payment calculated in accordance with section 31V(1). (Amended 105 of 1991 s. 2)

(2)

(Repealed 74 of 1997 s. 10)

(3)

Where an employee has terminated his contract in the circumstances specified in section 10(aa) upon being certified as being permanently unfit for a particular type of work, the employer may require the employee to undergo a medical examination, at the employer’s expense, to obtain a second opinion as to whether or not the employee is permanently unfit for that type of work. (Replaced 16 of 2006 s. 6)

(3A)

A medical examination referred to in subsection (3) shall be conducted by a registered medical practitioner or registered Chinese medicine practitioner named by the employer, regardless of whether the certificate issued in respect of the employee for the purposes of section 10(aa)(ii) was issued by a registered medical practitioner or registered Chinese medicine practitioner. (Added 16 of 2006 s. 6)

(4)

An employer shall forfeit his right to exercise the option under subsection (3) unless—

(5)

An employee referred to in subsection (3) who, without reasonable excuse, refuses to undergo a medical examination forfeits his right to a long service payment under this Part. (Added 61 of 1993 s. 5)

(6)

Where the second opinion obtained by an employer under subsection (3) comes to the opposite conclusion from the certificate issued under section 10(aa), the employer shall submit the certificate and the second opinion to the Commissioner and the Commissioner shall, after such consultation with such medical experts as he considers necessary, rule whether or not the employee is entitled to a long service payment under this Part. (Added 61 of 1993 s. 5)

(1)

Where an employee dies and he had been at the time of his death employed under a continuous contract for not less than 5 years of service on the date of his death, the employer shall, subject to this Part and Part VC, pay a long service payment calculated in accordance with section 31V(1) to— (Amended 105 of 1991 s. 3; 74 of 1997 s. 11)

(1A)

(Repealed 74 of 1997 s. 11)

(2)

A person referred to in paragraph (a), (b), (c) or (d) of subsection (1) shall not be entitled to such payment unless—

(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—

(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 at level 5. (Amended 103 of 1995 s. 10)

(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).

(1)

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. (Amended 51 of 2000 s. 5)

(2)

An employee shall not be entitled to a long service payment by reason of dismissal where, having been given notice of the termination of his contract of employment by his employer in accordance with section 6, he leaves the service of his employer before the expiration of that notice unless he so leaves—

(3)

Subject to subsection (6), an employee employed under a contract for a fixed term shall not be entitled to a long service payment where he is taken to be dismissed by his employer under section 31T(1)(b) 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—

and the employee has unreasonably refused that offer. (Added 75 of 1997 s. 3)

(4)

Subject to subsection (6), an employee employed under a contract for a fixed term shall not be entitled to a long service payment where he is taken to be dismissed by his employer under section 31T(1)(b) 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—

and the employee has unreasonably refused that offer. (Added 75 of 1997 s. 3)

(5)

Where the relevant date falls on a rest day or holiday, the references in subsections (3)(b) and (4)(c) to the relevant date shall be construed as references to the next day after that rest day or holiday. (Added 75 of 1997 s. 3)

(6)

Without affecting the application of section 31R(1)(a)(ii) and (b), where an employee employed under a contract for a fixed term, on or before the day on which the contract for a fixed term expires, refuses an offer of any of the descriptions mentioned in subsection (3) or (4)— (Amended 4 of 2022 s. 7)

(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—

(2)

An employee shall not be taken for the purposes of this Part to be dismissed by his employer if—

(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.

(1)

Subject to this Part, the amount of a long service payment payable under section 31R(1) or 31RA(1) shall be calculated by allowing— (Amended 105 of 1991 s. 4)

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, where the relevant date occurs in a period specified in column 1 of Table A in the Seventh Schedule, the amount specified in column 2 of that table opposite to the period. (Replaced 41 of 1990 s. 12. Amended 5 of 1995 s. 7)

(1AA)

(Repealed 4 of 2022 s. 8)

(1A)

Despite subsection (1), the employee may, for a calculation under that subsection, elect to have the employee’s wages averaged over the period of 12 months immediately preceding the relevant date as if—

(1B)

For calculating the average daily wages under subsection (1A)(b), the total wages for the period of 12 months must not exceed 12 times $22,500. (Added 4 of 2022 s. 8)

(2)

(Repealed 4 of 2022 s. 8)

(3)

(Repealed 41 of 1990 s. 12)

(1)

This section applies if—

(2)

The long service payment is to be reduced by the aggregate amount of every one of the gratuities and benefits referred to in subsection (1)(b) to the extent that it relates to the employee’s years of service for which the long service payment is payable.

(1)

This section applies if—

(1A)

The aggregate amount of every one of the gratuities and benefits referred to in subsection (1)(a) is to be reduced by the whole amount of the long service payment to the extent that it is attributable to the same years of service as those for which the long service payment is payable. (Added 4 of 2022 s. 11)

(2)

Subsection (1A) has effect even though the years of service for which the long service payment was made exceed those to which the gratuity or benefit is attributable. (Amended 4 of 2022 s. 11)

(3)

(Repealed 4 of 2022 s. 11)

(1)

This section applies if—

(2)

The long service payment is to be reduced by the aggregate amount of every one of the gratuities and benefits referred to in subsection (1)(c) to the extent that it relates to the employee’s years of service for which the long service payment is payable.

(1)

This section applies if—

(2)

The aggregate amount of every one of the gratuities and benefits referred to in subsection (1)(b) is to be reduced by the whole amount of the long service payment to the extent that it is attributable to the same years of service as those for which the long service payment is payable.

(3)

Subsection (2) has effect even though the years of service for which the long service payment was made exceed those to which the gratuity or benefit is attributable.

(1)

This section applies if—

(2)

A reference to a gratuity based on length of service, employer-funded (specified) ORS benefit or employer-funded (voluntary) MPFS benefit in subsection (1)(c) is a reference to such a gratuity or benefit relating to the employee’s years of service for which the long service payment is payable.

(3)

Person B is entitled to payment of any gratuities or benefits mentioned in subsection (1)(c) only to the extent that the aggregate amount of every one of such gratuities and benefits exceeds the amount of the long service payment.

(4)

Subsection (5) applies if—

(5)

Person B must repay the benefit to the administrator or trustee except for an amount the payment of which Person B is entitled to under subsection (3).

(6)

On being repaid the benefit, the administrator or trustee must pay it to the employer concerned.

(1)

This section shall have effect where—

(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 31T(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—

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.

(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.

(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 (相聯公司) shall be construed accordingly.

(5)

In this section—

company (公司) has the meaning given by section 2(1) of the Companies Ordinance (Cap. 622); subsidiary (附屬公司) has the meaning given by section 15 of the Companies Ordinance (Cap. 622) for the purposes of that Ordinance. (Replaced 28 of 2012 ss. 912 & 920)

(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)

(2)

Any employer who without reasonable excuse fails to comply with subsection (1) commits an offence and is liable to a fine at level 3. (Amended 24 of 1988 s. 2; 103 of 1995 s. 11)

(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)

(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—

(1)

Parts VA and VB have effect in relation to an employee engaged under a continuous contract of employment subject to subsections (2) and (3), and any enactments are to be construed accordingly.

(2)

Parts VA and VB have effect in relation to such an employee with the modifications set out in Schedule 11 if—

(3)

If the relevant date for the termination of the employee’s employment under the continuous contract precedes the transition date, then Parts VA and VB as in force immediately before the transition date continue to have effect in relation to the employee as if the amendments to this Ordinance made by the Employment and Retirement Schemes Legislation (Offsetting Arrangement) (Amendment) Ordinance 2022 (4 of 2022) had not been made.

(1)

Where a continuous contract of employment specifies an age of retirement and— (Amended 4 of 2022 s. 15)

then for the purposes of Parts VA and VB of this Ordinance, the employment after retirement shall be regarded as a fresh employment.

(2)

(Repealed 4 of 2022 s. 15)

(1)

An employee may be granted remedies against his employer under this Part—

(2)

For the purposes of subsection (1)(a), an employee who has been dismissed by the employer shall, unless a valid reason is shown for that dismissal within the meaning of section 32K, be taken to have been so dismissed because the employer intends to extinguish or reduce any right, benefit or protection conferred or to be conferred upon the employee by this Ordinance.

(3)

For the purposes of subsection (1)(b), the variation of the terms of the contract of employment by the employer as referred to in that subsection shall, unless a valid reason is shown for that variation within the meaning of section 32K, be taken to be a variation of the terms of the contract of employment by the employer by reason that the employer intends to extinguish or reduce any right, benefit or protection conferred or to be conferred upon the employee by this Ordinance.

(4)

For the purposes of subsection (1)(c)—

(5)

For the purposes of subsection (1)(c), an employee shall be entitled to remedies under this Part if and only if—

(1)

For the purposes of section 32A(1)(a) and subject to this Part, where an employee is dismissed because the employer intends to extinguish or reduce his right to a severance payment or to a long service payment, he shall be taken to be dismissed by his employer if, but only if—

(2)

Subject to subsection (1), an employee shall be taken for the purposes of section 32A(1)(a) and (c) to be dismissed by his employer when the contract under which he is employed is terminated by the employer with or without notice or payment in lieu otherwise than in accordance with section 9.

(3)

An employee shall not be taken for the purposes of section 32A(1)(a) to be dismissed by his employer if—

(4)

For the purposes of the application of subsection (3) 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.

(1)

An employee shall not be entitled to remedies under this Part 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—

and the employee has unreasonably refused that offer.

(2)

An employee shall not be entitled to remedies under this Part 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, would differ, wholly or in part, from the corresponding provisions of the contract as in force immediately before the dismissal, but—

and the employee has unreasonably refused that offer.

(3)

Where the relevant date falls on a rest day or holiday, the references in subsections (1)(b) and (2)(c) to the relevant date shall be construed as references to the next day after that rest day or holiday.

(4)

An employee shall not be entitled to remedies under this Part by reason of dismissal where, having been given notice of the termination of his contract of employment by his employer in accordance with section 6, he leaves the service of his employer before the expiration of that notice unless he so leaves—

(5)

Subsections (1) to (3) shall not apply where an employee is dismissed in any of the circumstances mentioned in section 32A(1)(c).

(1)

This section shall have effect where—

(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 32B(3) 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 32C(1) or (2) (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 32C(1) or (2) in relation to an offer made by the new owner—

(5)

This section shall have effect (subject to the necessary modifications) in relation to a case where—

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.

(1)

Where the employer is a company, any reference in section 32B, 32C or 32D to renewal or re-engagement by the employer shall be construed as a reference to renewal or re-engagement by that company or by any associated company, and any reference in section 32B, 32C or 32D 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 32D in a case where the previous owner and the new owner are associated companies; and where that section applies, subsection (1) shall not apply.

(3)

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.

(4)

In this section—

company (公司) has the meaning given by section 2(1) of the Companies Ordinance (Cap. 622); subsidiary (附屬公司) has the meaning given by section 15 of the Companies Ordinance (Cap. 622) for the purposes of that Ordinance. (Replaced 28 of 2012 ss. 912 & 920)

(1)

Subject to this section, the Labour Tribunal established under the Labour Tribunal Ordinance (Cap. 25) shall have jurisdiction to inquire into, hear and determine a claim made by an employee under this Part in accordance with this Part and with that Ordinance.

(2)

The Labour Tribunal does not have jurisdiction to inquire into, hear or determine a claim under this Part if the relevant date in respect of that claim falls more than 9 months before the date on which the claim is filed with the Registrar of the Labour Tribunal, unless the parties to the claim, by a memorandum signed by them and filed with the Registrar, have agreed that the Tribunal shall have jurisdiction. (Amended 21 of 2018 s. 3)

(3)

A claim under this Part over which the Labour Tribunal has jurisdiction may be transferred under section 10 of the Labour Tribunal Ordinance (Cap. 25) but may be so transferred only to the Court of First Instance or the District Court. (Replaced 21 of 2018 s. 3)

(4)

The Court of First Instance or the District Court may, for a claim so transferred to it, make all or any of the orders and awards provided for under sections 32N, 32O, 32P, 32PA and 32PC. (Added 21 of 2018 s. 3)

(5)

Apart from a transfer under subsection (3), neither the Court of First Instance nor the District Court has jurisdiction over a claim under this Part. (Added 21 of 2018 s. 3)

(1)

This section applies in relation to an employee who is subject to a Cap. 599 requirement, and is dismissed or has the terms of the employee’s contract of employment varied by the employer.

(2)

In determining for the purposes of this Part whether the employer has a valid reason for the dismissal of the employee or the variation of the terms of the employee’s contract of employment within the meaning of section 32K, the employee’s absence from work due to the employee’s compliance with the Cap. 599 requirement does not constitute a valid reason for the dismissal or variation.

(1)

On a claim for remedies under this Part, in determining whether or not an employer has shown that he has a valid reason for the dismissal of an employee or for the variation of the terms of the contract of employment with an employee within the meaning of section 32K, the court or the Labour Tribunal shall take into consideration the circumstances of the claim.

(2)

Without affecting the generality of subsection (1), the circumstances of a claim include the length of time that the employee has been employed under that contract of employment with the employer as compared to the length of qualifying service required for the right, benefit or protection conferred or to be conferred upon the employee by this Ordinance which is capable of being extinguished or reduced by means of the dismissal or the variation of the terms of the contract of employment.

(1)

On a claim for remedies under this Part if the court or Labour Tribunal finds that the employer has not shown a valid reason as specified under section 32K, the employer is deemed to intend to extinguish or reduce any right, benefit or protection conferred or to be conferred upon the employee by this Ordinance and the dismissal or the variation is deemed to be unreasonable and the court or Labour Tribunal may make an order under section 32N or an award of terminal payments under section 32O.

(2)

On a claim for remedies under this Part if, in relation to the dismissal of an employee in any of the circumstances mentioned in section 32A(1)(c), the court or Labour Tribunal finds that the employer has not shown a valid reason for that dismissal within the meaning of section 32K and, upon that finding the employer, after having been given an opportunity to do so, refuses or fails to show that the dismissal is not in contravention of—

then the court or Labour Tribunal may make an order under section 32N or an award of terminal payments under section 32O and, in the case where the court or Labour Tribunal does not make an order under section 32N, the court or Labour Tribunal may, whether or not it has made an award of terminal payments under section 32O, make an award of compensation under and in accordance with section 32P to be payable to the employee by the employer as it considers just and appropriate in the circumstances.

(3)

An order or award made under this Part shall not affect the civil or criminal liability of an employer otherwise than under this Part in respect of the dismissal or the variation of the terms of the contract of employment.

(1)

Subject to this section and to section 32M, an order under this section may be an order for reinstatement (in accordance with subsections (4) and (5)) or an order for re-engagement (in accordance with subsections (6) and (7)) as the court or Labour Tribunal may decide and on terms which it considers just and appropriate in the circumstances.

(2)

The court or Labour Tribunal shall first consider whether to make an order for reinstatement, and if it decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement.

(3)

If the court or Labour Tribunal finds that an order for reinstatement or re-engagement is appropriate—

(3A)

If the employer and the employee express agreement, the court or Labour Tribunal must make an order for reinstatement or re-engagement pursuant to the agreement. (Added 21 of 2018 s. 4)

(3B)

For a dismissal of an employee in any of the circumstances mentioned in section 32A(1)(c), even though only the employee expresses agreement, the court or Labour Tribunal must make an order for reinstatement or re-engagement if it finds that reinstatement or re-engagement of the employee by the employer is reasonably practicable. (Added 21 of 2018 s. 4)

(3C)

Before making a finding for the purposes of subsection (3B), the court or Labour Tribunal—

(3D)

Before making a finding for the purposes of subsection (3B), the court or Labour Tribunal may, with the agreement of the employer and the employee, request the Commissioner to provide to it a report containing information that—

(3E)

On receiving the request, the Commissioner must prepare the report, seek the agreement of the employer and the employee to the contents of the report and—

(4)

An order for reinstatement is an order that the employer shall treat the employee in all respects as if he had not been dismissed or as if there had been no such variation of the terms of the contract of employment. On making the order, the court or Labour Tribunal must specify the terms on which the employee must be reinstated, including— (Amended 21 of 2018 s. 4)

(5)

On the making of an order for reinstatement, if the court or Labour Tribunal considers just and appropriate in the circumstances, it may specify—

(6)

An order for re-engagement is an order that the employer must re-engage the employee in an employment on terms comparable to his original terms of the employment or in other suitable employment. On making the order, the court or Labour Tribunal must specify the terms on which the employee must be re-engaged, including— (Amended 21 of 2018 s. 4)

(7)

On the making of an order for re-engagement, if the court or Labour Tribunal considers just and appropriate in the circumstances, it may specify—

(8)

(Repealed 21 of 2018 s. 4)

(9)

This section has effect subject to sections 32PA, 32PB and 32PC. (Added 21 of 2018 s. 4)

(10)

If the employer pays the sums mentioned in section 32NA(1) by the date specified for that purpose in an order for reinstatement or re-engagement (as varied under section 32PA or 32PC, if applicable), the employee is not entitled to enforce the other terms of the order (as so varied, if applicable). (Added 21 of 2018 s. 4)

(1)

For the purposes of section 32N(4)(d) and (6)(g), the following sums are payable by the employer to the employee—

(2)

In determining the amounts mentioned in subsection (1)(a)(i) and (ii), the court or Labour Tribunal must not take into account the sum mentioned in subsection (1)(b).

(3)

The Commissioner may, by notice published in the Gazette, amend subsection (1)(b)(i) by substituting another amount for the amount specified in that subsection.

(1)

This section applies in calculating an employee’s average monthly wages for the purposes of section 32NA(1)(b)(ii).

(2)

In subsections (3), (4) and (5)—

wages (工資) includes a sum of money paid by an employer in respect of any of the following days—(a)a day of maternity leave, a day of paternity leave, a rest day, a sickness day, a holiday or a day of annual leave taken by the employee;(b)a day of leave taken by the employee with the agreement of the employer;(c)a normal working day on which the employee is not provided with work by the employer;(d)a day of absence from work of the employee due to temporary incapacity for which compensation is payable under section 10 of the Employees’ Compensation Ordinance (Cap. 282).

(3)

The employee’s average monthly wages are the average monthly wages earned by the employee during—

(4)

The average monthly wages are to be calculated without regard to—

(5)

To avoid doubt, if the amount of the wages paid to an employee in respect of a day covered by the definition of wages in subsection (2) is only a fraction of the amount earned by the employee on a normal working day, the employee’s average monthly wages are to be calculated without regard to the wages and the day.

(6)

Despite subsection (3), if for any reason it is impracticable to calculate an employee’s average monthly wages in the manner provided in that subsection, the amount may be calculated by reference to—

(1)

Subject to section 32M, if no order for reinstatement or re-engagement is made under section 32N, the court or Labour Tribunal may make an award of terminal payments to be payable by the employer to the employee as it considers just and appropriate in the circumstances.

(2)

Terminal payments under this section refer to the statutory entitlements under this Ordinance that the employee has not been paid and that the employee is entitled to upon the termination of the contract of employment, or that he might reasonably be expected to be entitled to upon the termination of the contract of employment had he been allowed to continue with his original employment or original terms of the contract of employment to attain the minimum qualifying length of service required for the entitlements under this Ordinance.

(3)

Subject to subsection (4), terminal payments include—

(4)

Notwithstanding that the employee has not attained the qualifying length of service required for the entitlements under this Ordinance, the court or Labour Tribunal may make an award for terminal payments under subsection (1) or (5) which shall be reckoned according to the actual length of time that the employee has been employed under that contract of employment with the employer.

(5)

For the purposes of this section, where no order for reinstatement or re-engagement is made for an unreasonable variation of the terms of the contract of employment, the court or Labour Tribunal may treat the unreasonable variation of the terms of the contract of employment as an unreasonable dismissal by the employer and make an award for terminal payments and such terminal payments should be calculated up to the last date on which the employee renders services to the employer or the date on which an award of terminal payments under this section is made by the court or Labour Tribunal, whichever is the earlier.

(6)

The respective provisions governing the calculation of the statutory entitlements shall apply to the calculation of the terminal payments. (Amended 21 of 2018 s. 6)

(7)

Sections 31I and 31IA shall apply to any severance payment paid under this section.

(8)

Sections 31Y, 31YAA and 31YA shall apply to any long service payment paid under this section.

(1)

Subject to section 32M, the court or Labour Tribunal may, whether or not it has made an award of terminal payments under section 32O, make an award of compensation to be payable to the employee by the employer as it considers just and appropriate in the circumstances, if—

(2)

In determining an award of compensation and the amount of the award of compensation under this section, the court or Labour Tribunal shall take into account the circumstances of the claim.

(3)

Without affecting the generality of subsection (2) the circumstances of a claim include—

(4)

The amount of an award of compensation under this section shall be such amount as the court or Labour Tribunal considers just and appropriate but no such award shall exceed an amount of $150,000.

(5)

The Commissioner for Labour may amend the amount specified in subsection (4) by notice in the Gazette.

(1)

For the purposes of this section—

(2)

If the court or Labour Tribunal made an order for re-engagement (principal order) against an employer (original employer), it may, on application, order variation of the principal order to the effect that engagement of the employee by a successor or associated company of the original employer (alternative employer) is to be treated as re-engagement by the original employer in compliance with the principal order.

(3)

An application for the purposes of subsection (2) may only be made if—

(4)

The application may only be made by the employee, and must be accompanied by the agreement or a copy of the agreement.

(5)

The application may only be made—

(6)

An order of variation may only be made under this section if the court or Labour Tribunal is satisfied that the terms on which the alternative employer is to engage the employee, as specified in the agreement, are comparable to the terms on which the original employer is to re-engage the employee under the principal order, except the terms mentioned in section 32N(6)(f) and (g).

(7)

An order of variation made in relation to an application under this section—

(8)

Each of the following dates as specified under subsection (7) in an order of variation may be the same as or different from that date as specified in the principal order—

(1)

This section applies if—

and an expression in this section that also appears in section 32PA has the same meaning as it has in that section.

(2)

The terms on which the alternative employer is to engage the employee, as specified under section 32PA(7)(a) in the order of variation, form part of the employee’s contract of employment with the alternative employer.

(3)

The following applies for reckoning the employee’s existing and future entitlements under this Ordinance and the employee’s contract of employment with the alternative employer—

(4)

In subsection (3)(a), a reference to the employee’s period of employment with the original employer is a reference to the period of employment of the employee with the original employer that, had the original employer re-engaged the employee in accordance with the principal order, would have been counted for reckoning the employee’s existing and future entitlements under this Ordinance and the employee’s contract of employment with the original employer.

(5)

The engagement of the employee by the alternative employer is treated as re-engagement by the original employer in compliance with the principal order.

(6)

Any amount specified under section 32N(7) in the principal order as payable by the employer to the employee remains payable by the original employer to the employee. Any amount specified under that section in that order as required to be restored by the employee to the employer remains required to be restored by the employee to the original employer.

(7)

For calculating an amount specified in the principal order under section 32N(7), references in the principal order to re-engagement and to the date of re-engagement are respectively treated as references to the engagement of the employee by the alternative employer and to the date of the engagement.

(1)

This section applies if an order for reinstatement or re-engagement is made under section 32N in respect of an employee dismissed in any of the circumstances mentioned in section 32A(1)(c), whether or not the order is varied under this section or section 32PA (which order (as so varied, if applicable) is referred to in this section as the principal order).

(2)

The employer against whom the principal order is made may apply for it to be varied to the effect that the employer is relieved from the liability to pay the sum mentioned in section 32NA(1)(b).

(3)

An application under subsection (2) may only be made on the ground that it is no longer reasonably practicable for the employer to reinstate or re-engage the employee in accordance with the principal order—

(4)

The application may only be made to the court, or the Labour Tribunal, that made the principal order.

(5)

The application may only be made—

(6)

Before determining the application, the court or Labour Tribunal must give an opportunity to the employer and the employee to present each of their cases in respect of the application.

(7)

In determining the application, the court or Labour Tribunal may take into account any relevant considerations.

(8)

The court or Labour Tribunal may—

(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—

(3)

Except with the approval in writing of the Commissioner, the total of all deductions, excluding deductions in respect of absence from work or any deduction pursuant to an attachment order made under section 20(1) of the Guardianship of Minors Ordinance (Cap. 13), section 9A(1) of the Separation and Maintenance Orders Ordinance (Cap. 16) or section 28(1) of the Matrimonial Proceedings and Property Ordinance (Cap. 192), 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. (Amended 69 of 1997 s. 34)

(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.

(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; 48 of 1984 s. 14)

(2)

Subject to subsection (2A), an entitlement to sickness allowance shall accrue at the rate of—

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)

(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 (2A), 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)

Subject to subsection (4BAA), an employer shall not terminate a contract of employment of an employee otherwise than in accordance with section 9 on any sickness day taken by the employee in respect of which sickness allowance is payable under this section. (Replaced 7 of 2001 s. 8)

(4BAAA)

For the purposes of subsections (4BA)(b), (4BAAB) and (4BAAC), wages (工資) includes any sum paid by an employer in respect of—

(4BA)

An employer who contravenes subsection (4B) shall be liable to pay to the dismissed employee—

(4BAAB)

In calculating the daily average of the wages earned by an employee during the period of 12 months or the shorter period—

are to be disregarded. (Added 7 of 2007 s. 9)

(4BAAC)

For the avoidance of doubt, if the amount of the wages paid to an employee in respect of a day specified in subsection (4BAAA) is only a fraction of the amount earned by the employee on a normal working day, the wages and the day are to be disregarded in accordance with subsection (4BAAB). (Added 7 of 2007 s. 9)

(4BAAD)

Despite subsection (4BA)(b), if for any reason it is impracticable to calculate the daily average of the wages earned by an employee in the manner provided in that subsection, the amount may be calculated by reference to the wages earned by a person who was employed at the same work by the same employer during the period of 12 months immediately before the date of termination of the employee’s contract of employment, or, if there is no such person, by a person who was employed in the same trade or occupation and at the same work in the same district during the period of 12 months immediately before the date of termination of the employee’s contract of employment. (Added 7 of 2007 s. 9)

(4BAA)

An employer who terminates the continuous contract of employment of an employee on any sickness day taken by the employee in respect of which sickness allowance is payable under this section shall be taken for the purposes of subsection (4B) to terminate the contract otherwise than in accordance with section 9—

(4BAB)

Subsection (4BAA)(b) shall not apply in the case of civil proceedings. (Added 7 of 2001 s. 8)

(4BB)

Any employer who contravenes subsection (4B) shall be guilty of an offence and shall be liable on conviction to a fine at level 6. (Replaced 7 of 2001 s. 8)

(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—

(5AA)

Where a medical certificate issued for the purposes of subsection (5)—

(5A)

Where an employee takes paid sickness days (other than any sickness day that falls within paragraph (b) of the definition of sickness day in section 2(1)) 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 registered medical practitioner, registered Chinese medicine practitioner or registered dentist attending the employee as an out-patient or in-patient in a hospital. (Added 57 of 1983 s. 5. Amended 5 of 1995 s. 9; 16 of 2006 s. 7; 5 of 2022 s. 7)

(5B)

For a sickness day under subsection (3A) on which a female employee attends a medical examination in relation to her pregnancy, the employer is liable to pay sickness allowance for that day if the employee produces, in relation to the examination, a certificate of attendance described in section 33A. (Added 13 of 2020 s. 10)

(6)

For the purposes of this section—

(7)

Every medical certificate shall, in addition to specifying the number of days on which, in the opinion of the issuer of the certificate, 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 issuer of the certificate, 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 issuer of the certificate. (Amended 57 of 1983 s. 5; 5 of 1995 s. 9; 16 of 2006 s. 7)

(8)

An employee is entitled to sickness allowance in respect of a sickness day that falls within paragraph (b) of the definition of sickness day in section 2(1) only if—

(9)

For the purposes of subsection (8), it does not matter—

(10)

In subsections (8) and (9)—

⁺specified date (指明日期) means the day on which the Employment (Amendment) Ordinance 2022 (5 of 2022) is published in the Gazette. (Added 5 of 2022 s. 7)

(1)

For the purposes of section 33(5B), this section sets out the requirements for a certificate of attendance in relation to a female employee’s attendance on a particular day at a medical examination in relation to her pregnancy.

(2)

The certificate—

(3)

If the employee attends the examination as an in-patient in a hospital, the certificate must be issued by a medical professional who conducts the examination.

(4)

If, in relation to the examination—

the certificate must be issued by a medical professional who conducts the examination for the employee as an out-patient or in-patient in a hospital.

(5)

If the employer operates a recognized scheme of medical treatment, the certificate must be issued by a registered medical practitioner, or a registered Chinese medicine practitioner, engaged by the employer for the purposes of the scheme.

(6)

However, subsection (5) does not apply if—

(7)

In this section—

hospital (醫院) has the meaning given by section 33(6)(a); medical professional (醫療專業人員) means—(a)a registered medical practitioner;(b)a registered Chinese medicine practitioner;(c)a midwife registered under section 8 of the Midwives Registration Ordinance (Cap. 162) or deemed to be registered under section 25 of that Ordinance; or(d)a person with full registration, special registration or limited registration within the meaning of the Nurses Registration Ordinance (Cap. 164). (Replaced 24 of 2024 s. 91)

(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 registered medical practitioner, registered Chinese medicine practitioner or registered dentist with such medical treatment as an out-patient as the Director considers reasonable. (Amended 5 of 1995 s. 10;16 of 2006 s. 8)

(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.

(1) For the purposes of subsections (2), (2A) and (2B), wages (工資) includes any sum paid by an employer in respect of—(a)a day of maternity leave, a day of paternity leave, a rest day, a sickness day, a holiday or a day of annual leave taken by the employee; (Amended 21 of 2014 s. 10)(b)a day of leave taken by the employee with the agreement of his employer;(c)a normal working day on which the employee is not provided with work;(d)a day of absence from work of the employee due to temporary incapacity for which compensation is payable under section 10 of the Employees’ Compensation Ordinance (Cap. 282). (Replaced 7 of 2007 s. 10)

(2)

The daily rate of sickness allowance is a sum equivalent to four-fifths of the daily average of the wages earned by the employee during—

but no sickness allowance is payable in respect of a day on which the employee would not have worked had the employee not been sick or injured or absent from work due to the employee’s compliance with a Cap. 599 requirement and for which no wages would normally be payable by the employer. (Replaced 7 of 2007 s. 10. Amended 5 of 2022 s. 8)

(2A)

In calculating the daily average of the wages earned by an employee during the period of 12 months or the shorter period—

are to be disregarded. (Added 7 of 2007 s. 10)

(2B)

For the avoidance of doubt, if the amount of the wages paid to an employee in respect of a day specified in subsection (1) is only a fraction of the amount earned by the employee on a normal working day, the wages and the day are to be disregarded in accordance with subsection (2A). (Added 7 of 2007 s. 10)

(2C)

Despite subsection (2), if for any reason it is impracticable to calculate the daily average of the wages earned by an employee in the manner provided in that subsection, the amount may be calculated by reference to the wages earned by a person who was employed at the same work by the same employer during the period of 12 months immediately before the employee’s sickness day or first sickness day (as appropriate), or, if there is no such person, by a person who was employed in the same trade or occupation and at the same work in the same district during the period of 12 months immediately before the employee’s sickness day or first sickness day (as appropriate). (Added 7 of 2007 s. 10)

(3)

Where a contract of employment of an employee is terminated, sickness allowance payable under section 33(4C) shall be calculated in accordance with this section. (Added 48 of 1984 s. 15. Amended 7 of 2007 s. 10)

(4)

If, pursuant to the terms of his contract of employment or any other agreement or for any other reason, an employee is paid by his employer a sum of money in respect of a paid sickness day taken by him, the sickness allowance payable to the employee in respect of that sickness day is to be reduced by the sum. (Added 7 of 2007 s. 10)

(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(4C) 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)

(1)

Every employer shall keep a record—

(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)

(1B)

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)—

(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)

(1)

Subject to subsections (1A), (2) and (3), an employee shall be granted a statutory holiday by his employer on each of the following days*— (Amended 137 of 1997 s. 3)

(1A)

The operation of subsection (1)(da) shall be suspended for the year 1998. (Added 137 of 1997 s. 3)

(2)

An employer may, instead of granting an employee a holiday on a statutory holiday, grant the employee an alternative 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 alternative holiday—

(2A)

Subsection (2) shall apply to and in relation to a holiday under subsection (4) as it applies to and in relation to a statutory holiday. (Added 137 of 1997 s. 3)

(3)

An employer and his employee may agree that another day shall be substituted for a statutory holiday or an alternative holiday or a holiday under subsection (4), 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—

#(5)-(9)

(Repealed 137 of 1997 s. 3)

(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), (2A) 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 as if the contract of employment had not been terminated. (Amended 137 of 1997 s. 4; 7 of 2007 s. 11)

(1) For the purposes of subsections (2), (3) and (4), wages (工資) includes any sum paid by an employer in respect of—(a)a day of maternity leave, a day of paternity leave, a rest day, a sickness day, a holiday or a day of annual leave taken by the employee; (Amended 21 of 2014 s. 11)(b)a day of leave taken by the employee with the agreement of his employer;(c)a normal working day on which the employee is not provided with work;(d)a day of absence from work of the employee due to temporary incapacity for which compensation is payable under section 10 of the Employees’ Compensation Ordinance (Cap. 282).

(2)

The daily rate of holiday pay is a sum equivalent to the daily average of the wages earned by the employee during—

(3)

In calculating the daily average of the wages earned by an employee during the period of 12 months or the shorter period—

are to be disregarded.

(4)

For the avoidance of doubt, if the amount of the wages paid to an employee in respect of a day specified in subsection (1) is only a fraction of the amount earned by the employee on a normal working day, the wages and the day are to be disregarded in accordance with subsection (3).

(5)

Despite subsection (2), if for any reason it is impracticable to calculate the daily average of the wages earned by an employee in the manner provided in that subsection, the amount may be calculated by reference to the wages earned by a person who was employed at the same work by the same employer during the period of 12 months immediately before the employee’s holiday or first day of the holidays (as appropriate), or, if there is no such person, by a person who was employed in the same trade or occupation and at the same work in the same district during the period of 12 months immediately before the employee’s holiday or first day of the holidays (as appropriate).

(6)

If, pursuant to the terms of his contract of employment or any other agreement or for any other reason, an employee is paid by his employer a sum of money in respect of a holiday taken by him, the holiday pay payable to the employee in respect of that holiday is to be reduced by the sum.

(1)

Subject to this Part, every employee who has been in employment under a continuous contract for not less than 12 months shall, in respect of each leave year, be entitled to paid leave (in this Part referred to as annual leave) calculated in accordance with subsection (2).

(2)

Where an employee has been in employment under a continuous contract for a period specified in column (1) of the Table to this section, the amount of annual leave to which he shall be entitled in respect of any leave year in that period shall be the number of days specified in column (2) of such Table in respect of the period.

(3)

Subject to subsection (5)(c), times at which annual leave is granted shall be determined by the employer after consultation with the employee concerned or his representatives.

(4)

An employer shall give an employee not less than 14 days’ notice in writing of the time he has determined for the grant of a period of annual leave, except where a shorter period of notice is agreed to by the employer and employee.

(5)

Annual leave to which an employee is entitled—

(6)

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), (2A), (3) or (4), as the case may require. (Amended 137 of 1997 s. 5)

(7)

No period of total incapacity for work by reason of sickness or injury or absence from work due to the employee’s compliance with a Cap. 599 requirement occurring during a period of annual leave shall count as part of that annual leave unless it commences after the commencement of the period of annual leave. (Amended 5 of 2022 s. 9)

(8)

Where—

(9)

Where—

then nothing in this section shall prevent or restrict, or be construed as preventing or restricting, the close down.

(10)

For the avoidance of doubt it is declared that annual leave is, and shall be granted, in addition to the rest days, holidays, maternity leave and paternity leave to which an employee is entitled under this Ordinance. (Amended 21 of 2014 s. 12)

At least 1 year but less than 3 years	7	7	7	7	7
At least 3 years but less than 4 years	8	8	8	8	8
At least 4 years but less than 5 years	9	9	9	9	9
At least 5 years but less than 6 years	10	10	10	10	10
At least 6 years but less than 7 years	10	11	11	11	11
At least 7 years but less than 8 years	10	11	12	12	12
At least 8 years but less than 9 years	10	11	12	13	13
At least 9 years	10	11	12	13	14

(1)

Notwithstanding anything in this Part, an employer may, at his option, elect to use a 12 month period determined by him as the leave year for the purpose of calculating the annual leave of all of his employees and, in that case, each of his employees is entitled to an annual leave under this Part determined in accordance with this section.

(2)

An employer shall, before making an election under this section, give 1 month’s notice—

stating his intention to make the election, the 12 month period he intends to elect to use and the date from which he will commence using it.

(3)

Where an employer makes an election under this section, he shall thenceforth use that 12 month period as the leave year for the purpose of calculating the annual leave entitlement of all of his employees and, where an employee has not been in employment under a continuous contract for the full period of a leave year—

(4)

Where an employee was already employed on the day an employer commences using a 12 month period for calculating annual leave for all of his employees under this section—

(5)

Where section 41F applies to an employer who has made an election under this section—

(1) For the purposes of subsections (2), (3) and (4), wages (工資) includes any sum paid by an employer in respect of—(a)a day of maternity leave, a day of paternity leave, a rest day, a sickness day, a holiday or a day of annual leave taken by the employee; (Amended 21 of 2014 s. 13)(b)a day of leave taken by the employee with the agreement of his employer;(c)a normal working day on which the employee is not provided with work;(d)a day of absence from work of the employee due to temporary incapacity for which compensation is payable under section 10 of the Employees’ Compensation Ordinance (Cap. 282).

(2)

The daily rate of annual leave pay is a sum equivalent to the daily average of the wages earned by the employee during—

(3)

In calculating the daily average of the wages earned by an employee during the period of 12 months or the shorter period—

are to be disregarded.

(4)

For the avoidance of doubt, if the amount of the wages paid to an employee in respect of a day specified in subsection (1) is only a fraction of the amount earned by the employee on a normal working day, the wages and the day are to be disregarded in accordance with subsection (3).

(5)

Despite subsection (2), if for any reason it is impracticable to calculate the daily average of the wages earned by an employee in the manner provided in that subsection, the amount may be calculated by reference to the wages earned by a person who was employed at the same work by the same employer during the period of 12 months immediately before the employee’s day of annual leave, the first day of his annual leave or the date of termination of his contract of employment (as appropriate), or, if there is no such person, by a person who was employed in the same trade or occupation and at the same work in the same district during the period of 12 months immediately before the employee’s day of annual leave, the first day of his annual leave or the date of termination of his contract of employment (as appropriate).

(6)

If, pursuant to the terms of his contract of employment or any other agreement or for any other reason, an employee is paid by his employer a sum of money in respect of a day of annual leave taken by him, the annual leave pay payable to the employee in respect of that day of annual leave is to be reduced by the sum.

(1)

Where—

the person by whom he was formerly employed shall, as soon as practicable and in any case not later than 7 days after such cesser, pay to him in respect of the annual leave compensation equal in amount to the annual leave pay he would have received had the leave so due been granted immediately after such cesser.

(2)

Where—

he shall, as soon as practicable and in any case not later than 7 days after the termination, be paid by the person by whom he was formerly employed, in addition to any sum due under subsection (1), a sum equal in amount to that which bears to the notional leave pay the same proportion as the number of days in the final employment period bears to 365.

(1)

Where an employee is entitled to annual leave, subject to sections 41AA(8)(a) and 41D and to subsection (2), no remuneration shall be paid to him by his employer in lieu of his taking all or any part of the annual leave.

(2)

Where an employee is entitled to more than 10 days’ annual leave in respect of a particular leave year, he may, in lieu of taking part of the leave, work on not more than the number of days by which such annual leave exceeds 10, and in case an employee so agrees, the amount payable to him in respect of any such day shall not be less than the aggregate of the following—

(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, as regards the period beginning on the appropriate day and ending on the day preceding the first day of the close down, be entitled to annual leave calculated in accordance with subsection (4). (Amended 53 of 1990 s. 4)

(4)

The amount of annual leave to which an employee is entitled under subsection (3) shall be determined as follows—

(5)

Where an employee is entitled to annual leave under subsection (3) and such leave exceeds the relevant closure days, unless the employee and his employer otherwise agree, the remaining annual leave shall be granted by the employer and be taken by the employee during an unbroken period beginning on the working day next following the last day of the relevant close down or, in case there is only 1 day’s remaining annual leave, it shall be so given and taken on such working day. (Added 53 of 1990 s. 4)

(6)

For the avoidance of doubt it is hereby declared that where an employee is entitled to annual leave under subsection (3), no period shall, by reason only of the entitlement, be regarded for the purposes of this Ordinance as being a leave year. (Added 53 of 1990 s. 4)

(7) In this section the relevant day (有關日期) means, in relation to an employee—(a)where the employee previously became entitled under subsection (3) to any annual leave in the immediately preceding period of 12 months, the first day of the close down as regards which the entitlement arose, or where he became so entitled more than once in such period of 12 months, the first day of the more or most recent, as appropriate, of such close downs; or(b)in any other case—(i)the day following the end of the employee’s last (or only) leave year; or(ii)where there is no such leave year, the day on which his employment commenced. (Added 53 of 1990 s. 4)

(1)

In this Part, unless the context otherwise requires—

building works (建築工程) 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 (主要指定次承判商) 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 (指定次承判商) 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 (總承判商) 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 (次承判商) 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 (工作) 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—

(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—

(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—

(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 Minor Employment Claims Adjudication Board or Labour Tribunal and an award or order is made in favour of the employee, the wages shall be paid within such time as the Minor Employment Claims Adjudication Board or Labour Tribunal may direct, or, in the absence of any direction, not later than 30 days after the making of the award or order. (Amended 61 of 1994 s. 53)

(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)

(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 sub-contractor 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 at level 5. (Amended 24 of 1988 s. 2; 103 of 1995 s. 14)

(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 at level 5. (Amended 24 of 1988 s. 2; 103 of 1995 s. 15)

(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 sub-contractor, 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—

(3)

For the purposes of this section any amount—

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.

(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—

(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 Minor Employment Claims Adjudication Board or Labour Tribunal and an award or order is made in favour of the employee, the wages shall be paid within such time as the Minor Employment Claims Adjudication Board or Labour Tribunal may direct, or, in the absence of any direction, not later than 30 days after the making of the award or order. (Amended 61 of 1994 s. 54)

(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 at level 5. (Amended 24 of 1988 s. 2; 103 of 1995 s. 16)

(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 at level 5. (Amended 24 of 1988 s. 2; 103 of 1995 1995 s. 17)

(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—

(3)

For the purposes of this section any amount—

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.

(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 43I may be served on an employer—

(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.

(1)

In this Part—

award (判令) includes an order; registrar (主任), in relation to a tribunal, means the Registrar of the Labour Tribunal or the Registrar of the Minor Employment Claims Adjudication Board (as the case may be); specified entitlement (指明權利) means— (a)any wages or any other sum payable under section 23, 24 or 25, or interest payable under section 25A on the wages or sum; (b)any end of year payment payable under Part IIA; (c)any maternity leave pay or sum payable under Part III; (ca)any paternity leave pay payable under Part IIIA; (Added 21 of 2014 s. 15) (d)any severance payment payable under Part VA; (e)any long service payment payable under Part VB; (f)any sickness allowance or sum payable under Part VII; (g)any holiday pay payable under Part VIII; (h)any annual leave pay payable under Part VIIIA; (i)any sum payable in respect of rest days, maternity leave, paternity leave, holiday or annual leave which the employer is required under this Ordinance to grant to an employee but fails to grant, to the extent that the sum is not covered by paragraph (a), (b), (c), (ca), (d), (e), (f), (g) or (h); (Amended 21 of 2014 s. 15) (j)any terminal payments payable under section 32O to the extent that—(i)the terminal payments are entitlements referred to in paragraph (a), (b), (c), (ca), (d), (e), (f), (g), (h) or (i) to which an employee is entitled upon the termination of the employee’s contract of employment or, by virtue of section 32O(5), as a consequence of the unreasonable variation of the terms of that contract; or (Amended 21 of 2014 s. 15)(ii)the award of those terminal payments is made by virtue of section 32M(2); (Amended 21 of 2018 s. 9) (k)any compensation payable under section 32P; or (Amended 21 of 2018 s. 9) (l)any of the following sums payable under an order for reinstatement or re-engagement made under section 32N (as varied under section 32PA or 32PC, if applicable)—(i)the sum mentioned in section 32NA(1)(a)(i), to the extent that the sum would have been awarded as entitlements falling within paragraph (j) if neither an order for reinstatement nor an order for re-engagement had been made;(ii)the sum mentioned in section 32NA(1)(a)(ii);(iii)the sum mentioned in section 32NA(1)(b); (Added 21 of 2018 s. 9) tribunal (審裁處) means the Labour Tribunal or Minor Employment Claims Adjudication Board.

(2)

A reference in this Part to an award of a tribunal includes—

(3)

A reference in this Part to the date of an award means, in relation to a settlement referred to in subsection (2)—

(1)

This Part applies to an award of a tribunal that is made on or after the commencement date.

(2) In this section, *commencement date (生效日期) means the date on which the Employment (Amendment) Ordinance 2010 (9 of 2010) comes into operation.

(1)

If—

the employer commits an offence and is liable on conviction to a fine of $350,000 and to imprisonment for 3 years.

(2)

A reference in subsection (1)(b)(i) or (ii) to any sum payable under an award includes—

(3)

For the purposes of subsection (1), if—

then, unless there is evidence to the contrary, the award is to be treated as providing for the payment of a specified entitlement.

(4)

Subsection (5) applies to an award that is an order for reinstatement or re-engagement made under section 32N (as varied under section 32PA or 32PC, if applicable) (which order (as so varied, if applicable) is referred to in subsection (5) as the order). (Added 21 of 2018 s. 10)

(5)

Where the order specifies a date (specified payment date) as the date by which the employer must pay to the employee a sum if the employer fails to reinstate or re-engage the employee on the terms specified in the order by the date so specified, the specified payment date is, on that failure, the date on which the sum is, by the terms of the award, payable for the purposes of subsection (1)(b)(ii). (Added 21 of 2018 s. 10)

(1)

Where an offence under section 43P committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, the director, manager, secretary or other similar officer commits the like offence.

(2)

Where an offence under section 43P committed by a partner in a firm is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any other partner in the firm or any other person concerned in the management of the firm, the other partner or the other person concerned in the management of the firm commits the like offence.

(3)

An offence under section 43P committed by a body corporate is presumed to have been committed with the consent or connivance of, or to be attributable to the neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, if it is proved that, at the time the offence was committed, the director, manager, secretary or other similar officer—

(4)

An offence under section 43P committed by a partner in a firm is presumed to have been committed with the consent or connivance of, or to be attributable to the neglect on the part of—

(5)

The presumption under subsection (3) or (4) is rebutted by a person charged with an offence under section 43P by virtue of that subsection if—

(1)

For the purposes of proceedings for an offence under section 43P, a document (first-mentioned document) purporting to be a copy of a specified document, and purporting to be certified by or on behalf of the registrar of a tribunal or the registrar of a court as a true copy of the specified document, is admissible in evidence on its production without further proof and, unless there is evidence to the contrary—

(2) In subsection (1), specified document (指明文件) means— (a)a claim filed with a tribunal, or an award made by a tribunal, or any other document relating to proceedings before a tribunal or a court; or (b)any document that is relevant to any fact specified in subsection (4) or (5).

(3)

For the purposes of proceedings for an offence under section 43P, a certificate purporting to be issued by or on behalf of the registrar of a tribunal or the registrar of a court and stating any of the facts specified in subsection (4) or (5) is admissible in evidence on its production without further proof and, unless there is evidence to the contrary—

(4)

The following facts are specified for the purposes of subsection (3) in relation to a certificate purporting to be issued by or on behalf of the registrar of a tribunal—

(5)

The following facts are specified for the purposes of subsection (3) in relation to a certificate purporting to be issued by or on behalf of the registrar of a court—

(6)

In this section—

order for re-engagement (再次聘用的命令) means an order for re-engagement made under section 32N and includes such an order as varied under section 32PA or 32PC; order for reinstatement (復職的命令) means an order for reinstatement made under section 32N and includes such an order as varied under section 32PC; registrar of a court (司法常務官) means—(a)the Registrar of the High Court; or(b)the Registrar of the Court of Final Appeal. (Replaced 21 of 2018 s. 11)

(7)

In subsections (1) and (3), a reference to a court before which a document or a certificate is produced includes a magistrate.

(1)

No prosecution for an offence under section 43P may be commenced without the consent in writing of the Commissioner.

(2)

Before giving consent to prosecute under subsection (1), the Commissioner must hear the person against whom the allegation is made, or give the person an opportunity of being heard.

(3)

Subject to subsection (1), a prosecution for an offence under section 43P 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.

(4)

Nothing in this section derogates from the powers of the Secretary for Justice in respect of the prosecution of criminal offences.

(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—

under which he is to be employed. (Replaced 48 of 1984 s. 25)

(2)

Where the contract of employment is not in writing, upon receipt, 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. (Amended 41 of 1990 s. 19)

(3)

Where the contract of employment is in writing, the employer shall provide such person with a copy of the contract immediately after it is signed or immediately after the procedure to validate the contract is completed where such procedure is required. (Added 41 of 1990 s. 19)

(1)

Every employer shall inform his employee, in a manner intelligible to the employee—

(2)

Where there is no written amendment to a contract of employment, upon receipt of a written request from his employee the employer shall deliver to him— (Amended 41 of 1990 s. 20)

a notice in writing containing such changes in conditions or particulars, as the case may be.

(3)

Where there is any written amendment made to a contract of employment, the employer shall provide his employee with a copy of the written amendment immediately after the amendment is reduced to writing or immediately after the procedure to validate the amendment is completed where such procedure is required. (Added 41 of 1990 s. 20)

(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—

(1)

Every employer who is a member of a class specified under subsection (2) shall in respect of—

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.

(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.

(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).

(1)

Every employer shall at all times keep and maintain a record in which is set out the wage and employment history of each employee covering the period of his employment during the preceding 12 months. (Amended L.N. 34 of 1990; 7 of 2007 s. 16)

(1A)

Without limiting subsection (1), an employer who engages a specified employee must at all times keep and maintain a record covering the specified period of—

(2)

The wage records referred to in subsection (1) or (1A) shall be kept— (Amended 4 of 2022 s. 17)

(3)

A record which includes particulars in relation to each employee of—

shall be a sufficient record for the purposes of subsection (1).

(4)

Despite subsection (3), subsection (1) must also be taken to require an employer to keep—

(5)

Nothing in subsection (1) requires an employer to set out in a record particulars of a kind referred to in subsection (3)(ea) for any wage period, or part of a wage period, of an employee that occurred before the effective date of the hourly wage rate first specified in column 1 of Schedule 3 to the Minimum Wage Ordinance (Cap. 608) on or after the commencement* of section 16 of that Ordinance. (Added 15 of 2010 s. 20)

(6)

The Commissioner may, by notice published in the Gazette, amend the Ninth Schedule. (Added 15 of 2010 s. 20)

(7) For the purposes of subsections (3)(ea) and (5), hours worked (工作時數), wage period (工資期) and wages (工資) have the same respective meanings as in the Minimum Wage Ordinance (Cap. 608). (Added 15 of 2010 s. 20)

(8)

In subsection (1A)—

specified period (指明期間), in relation to a specified employee, means— (a)if the employee’s pre-transition employment period is not less than 12 months—the period of 12 months immediately preceding the transition date; or (b)if the employee’s pre-transition employment period is less than 12 months—(i)in the case of a monthly rated employee—(A)if the employee’s pre-transition employment period covers not less than a month—that employment period; or(B)if the employee’s pre-transition employment period covers less than a month—the first month of the employee’s whole employment period; or(ii)in any other case—(A)if the employee’s pre-transition employment period covers not less than 30 normal working days—that employment period; or(B)if the employee’s pre-transition employment period covers less than 30 normal working days—the period covering the employee’s first 30 normal working days in the employee’s whole employment period. (Added 4 of 2022 s. 17)

(9)

In the definition of specified period in subsection (8)—

pre-transition employment period (轉制前僱傭期) has the meaning given by section 1(1) of Schedule 11; whole employment period (整段僱傭期) has the meaning given by section 1(1) of Schedule 11. (Added 4 of 2022 s. 17)

(1)

In this Part, unless the context otherwise requires—

associate (相關人士), in relation to a person, means— (a)if the person is a company—(i)a related person of the person; or(ii)an individual employed by the person; (b)if the person is a partner in a partnership—(i)a related person of the person; or(ii)an individual employed by the person or by the partnership; or (c)in any other case—an individual employed by the person; (Added 8 of 2018 s. 3) certificate of exemption (豁免證明書) means a certificate issued under section 54; employment agency (職業介紹所) 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 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; (Amended 41 of 1990 s. 21) licence (牌照) means a licence issued under section 52 and licensee (持牌人) shall be construed accordingly; (Amended 8 of 2018 s. 3) related person (有關連人士) means— (a)in relation to a company—a director, manager, secretary or other similar officer of the company; or (b)in relation to a partner in a partnership—(i)another partner in the partnership; or(ii)another person concerned in the management of the partnership. (Added 8 of 2018 s. 3)

(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—

(1)

A person must not operate, manage or assist in the management of an employment agency unless the person—

(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)

(Repealed 28 of 1992 s. 2)

(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.

(1A)

Where the applicant for a licence is a company, the application shall be submitted by a director of the company on its behalf. (Added 28 of 1992 s. 3)

(2)

A licence issued under this section shall—

(2A)

A licensee shall cause his licence to be displayed at all times in a conspicuous position at his place of business. (Added 28 of 1992 s. 3)

(2B)

Where a licensee operates an employment agency at more than one place of business, he shall designate which place of business is the main location and shall obtain a duplicate licence for each branch location and cause the duplicate licence to be displayed at all times in a conspicuous position at the branch location. (Added 28 of 1992 s. 3)

(2C)

Where a licensee operates an employment agency at more than one location using different names, the agencies shall be deemed to be separate entities and he shall obtain a separate licence for each name used. (Added 28 of 1992 s. 3)

(3)

(Repealed 28 of 1992 s. 3)

(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).

(1)

The Commissioner may refuse to issue or renew a licence, or may revoke a licence, if he is satisfied on reasonable grounds—

(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 in respect of him under subsection (1) may, within 28 days after he is notified under subsection (2), appeal to the Administrative Appeals Board. (Replaced 6 of 1994 s. 35)

(4)

(Repealed 6 of 1994 s. 35)

(5)

The licensee shall, if the Commissioner refuses to renew or revokes his licence under subsection (1),—

deliver the licence, and every copy thereof, to the Commissioner. (Replaced 6 of 1994 s. 35)

(1)

Subject to subsection (2), the Commissioner may, upon application 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)

(Repealed 28 of 1992 s. 4)

(3)

The Commissioner shall issue to any person exempted under subsection (1) a certificate of exemption.

(4)

A certificate of exemption issued under subsection (3) shall—

(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.

(1)

A licensee shall—

(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 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. (Amended 28 of 1992 s. 5)

(1)

A licensee, or an associate of a licensee, in respect of an employment agency, or a person purporting to act as such a licensee or associate, must not, directly or indirectly— (Amended 8 of 2018 s. 6)

(2)

In this section—

prescribed commission (訂明佣金), in relation to an employment agency, means the commission that the employment agency is permitted to charge and receive as prescribed by a regulation made under section 62. (Added 8 of 2018 s. 6)

(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—

(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)

(1)

Any person who contravenes section 51(2) shall be guilty of an offence and shall be liable on conviction to a fine at level 3. (Amended 24 of 1988 s. 2; 28 of 1992 s. 8)

(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 at level 3. (Amended 24 of 1988 s. 2)

(3)

Any licensee who contravenes section 52(2A), (2B) or (2C) or 56(1), (2) or (3) shall be guilty of an offence and shall be liable on conviction to a fine at level 3. (Amended 24 of 1988 s. 2; 28 of 1992 s. 8)

(4)

(Repealed 24 of 1988 s. 2)

(5)

Any person who—

shall be guilty of an offence and shall be liable on conviction to a fine at level 5. (Amended 24 of 1988 s. 2)