Hong Kong Ordinances

EMPLOYEES' COMPENSATION ORDINANCE - SECT 11

Method of calculating earnings

(1) Subject to this section, for the purposes of this Ordinance the monthly
earnings of an employee at the time of the accident shall be the earnings-

   (a)  for the month immediately preceding the date of the accident; or

   (b)  computed in such manner as is best calculated to give the rates per
        month at which the employee was being remunerated during the previous
        12 months if he has been so long employed by the same employer, but,
        if not, then for any lesser period during which he has been employed
        by the same employer, whichever calculation is more favourable to the
        employee. (Replaced 76 of 1982 s. 9)

(1A) Where an employee suffers temporary incapacity after an accident and such
incapacity extends beyond 12 months after the date of the accident the monthly
earnings of an employee at the time of the accident shall, in respect of
temporary incapacity beyond the 12-month period after the date of the
accident, be computed for the purposes of section 6, 7, 9 or 10 as being the
earnings calculated-

   (a)  where the employer employs, in similar employment, other persons of
        similar earning capacity to the employee, as the earnings that, if the
        accident had not occurred, the employee would have received at the end
        of a 12-month period after the date of the accident in accordance with
        the average rate of increase in respect of the earnings of other
        persons of similar earning capacity employed by the employer in
        similar employment;

   (b)  where the employer does not employ, in similar employment, other
        persons of similar earning capacity to the employee, as the monthly
        earnings of the employee computed under subsection (1) or (2) and
        adjusted in accordance with the rate of increase in the
        Consumer Price Index at the end of a 12-month period after the date of
        the accident. (Added 1 of 1995 s. 9)

(1B) Where an employee suffers temporary incapacity after an accident and such
incapacity extends beyond 24 months or such further period as the Court may
have allowed under section 10(5) the monthly earnings of an employee at the
time of the accident shall, in respect of temporary incapacity beyond the
24-month period or beyond such further period after the date of the accident,
be computed for the purposes of section 6, 7, 9 or 10 as being the earnings
calculated-

   (a)  where the employer employs, in similar employment, other persons of
        similar earning capacity to the employee, as the earnings that, if the
        accident had not occurred, the employee would have received at the end
        of a 24-month period after the date of the accident in accordance with
        the average rate of increase in respect of the earnings of other
        persons of similar earning capacity employed by the employer in
        similar employment;

   (b)  where the employer does not employ, in similar employment, other
        persons of similar earning capacity to the employee, as the monthly
        earnings of the employee computed under subsection

(1) or (2) and adjusted in accordance with the rate of increase in the
Consumer Price Index at the end of a 24-month period after the date of the
accident. (Added 1 of 1995 s. 9)

(1C) For the purposes of subsections (1A) and (1B), "Consumer Price Index"
(消費物價指數) means the consumer price index as complied and published
as CPI(A) in a Consumer Price Index Report by the Commissioner for Census and
Statistics. (Added 1 of 1995 s. 9)

(2) Where by reason of the shortness of the time during which an employee has
been in the employment of his employer or of the casual nature of the
employment, or of the terms of employment, it is impracticable to compute the
rate of remuneration of such employee at the date of the accident, regard may
be had to the average monthly amount which, during the 12 months previous to
the accident, was being earned by a person of similar earning capacity in the
same grade employed at the same work by the same employer, or, if there is no
person so employed, by a person of similar earning capacity in the same grade
employed in the same class of employment and in the same district. (Added 55
of 1969 s. 11)

(3) Where an employee was, at the date of the accident, under the age of 18
years his earnings shall, for the purposes of assessing compensation payable
in the case of death or permanent incapacity, be deemed to be such amount as,
if the accident had not occurred, he would probably have received upon
attaining the age of 18 years, or at the end of a period of 5 years after the
accident, whichever calculation is more favourable to the employee. (Added 55
of 1969 s. 11. Amended 76 of 1982 s. 9)

(4) Where an employee was, at the date of the accident, employed under a
contract of apprenticeship his earnings shall, for the purposes of assessing
compensation payable in the case of death or permanent incapacity, be deemed
to be such amount as, if the accident had not occurred, he would probably have
received upon the completion of his contract of apprenticeship. (Added 55 of
1969 s. 11. Amended 76 of 1982 s. 9)

(4A) Where an employee was, at the date of the accident, under the age of 18
years and employed under a contract of apprenticeship, his earnings shall, for
the purposes of assessing compensation payable in the case of death or
permanent incapacity, be deemed to be the amount calculated under subsection
(3) or (4), whichever calculation is more favourable to the employee. (Added
76 of 1982 s. 9)

(5) Where the earnings of an employee calculated under any of the provisions
of this section amount to less than the amount specified in the second column
of the Sixth Schedule shown opposite section 11(5) specified in the first
column of that Schedule per month, the earnings of such employee shall, for
the purposes of this Ordinance, be deemed to be the amount specified in the
second column of the Sixth Schedule shown opposite section 11(5) specified in
the first column of that Schedule per month. (Added 55 of 1969 s. 11. Amended
76 of 1982 s. 9; L.N. 321 of 1985; L.N. 390 of 1987; L.N. 386 of 1989; L.N.
435 of 1991; L.N. 463 of 1993; L.N. 566 of 1995; 36 of 1996 s. 8)

(6) For the purposes of subsections (1) and (2), employment by the same
employer shall be taken to mean employment by the same employer in the grade
in which the employee was employed at the time of the accident, uninterrupted
by absence from work due to illness or any other unavoidable cause. (Amended
55 of 1969 s. 11)

(7) Where the employee had entered into concurrent contracts of service with 2
or more employers under which he worked at one time for one such employer and
at another time for another such employer, his monthly earnings shall be
computed as if his earnings under all such contracts were earnings in the
employment of the employer for whom he was working at the time of the
accident: Provided that the earnings of the employee under the concurrent
contract shall be taken into account only so far as the employee is
incapacitated from performing the concurrent contract: Provided further that
this subsection shall not apply where an employee is in the full time
employment of that employer for whom he was working at the time of the
accident, in which case the earnings of such employee shall be his earnings in
such full time employment. For the purposes of this proviso, full time
employment means employment for not less than 40 hours during a minimum period
of 5 days in any 1 week. (Amended 76 of 1982 s. 9)

(7A) An employee shall, at the written request of his employer, give his
employer sufficient written information to enable the employer to comply with
section 40 regarding any of the employee's concurrent contracts of service
referred to in subsection (7) that are then in force or subsequently entered
into. (Added 59 of 1988 s. 2)

(7B) Subsection (7) does not apply where an employee fails to comply with
subsection (7A). (Added 59 of 1988 s. 2)

(8) Within 14 days after the date of issue of a written request of the
employee or of the Commissioner to the employer liable to pay compensation,
that employer shall furnish in writing a list of the earnings which have been
earned by that employee upon which the amount of the monthly earnings may be
calculated for the purpose of this section. (Amended 76 of 1982 s. 9)

(9) An employer who without reasonable excuse contravenes subsection (8)
commits an offence and is liable to a fine at level 3. (Added 76 of 1982 s. 9.
Amended 36 of 1996 s. 8) (Amended 44 of 1980 s. 15)

"Consumer Price Index" (消費物價指數) means the consumer price index as
complied and published as CPI(A) in a Consumer Price Index Report by the
Commissioner for Census and Statistics. (Added 1 of 1995 s. 9)