EMPLOYMENT ORDINANCE - CHAPTER 57 EMPLOYMENT ORDINANCE - LONG TITLE Long title VerDate:30/06/1997 To provide for the protection of the wages of employees, to regulate general conditions of employment and employment agencies, and for matters connected therewith. (Amended 5 of 1970 s. 2) [27 September 1968] (Originally 38 of 1968) EMPLOYMENT ORDINANCE - SECT 1 Short title VerDate:30/06/1997 PART I PRELIMINARY This Ordinance may be cited as the Employment Ordinance. EMPLOYMENT ORDINANCE - SECT 2 Interpretation VerDate:01/12/2006 (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) "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; "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 28 weeks of pregnancy; (Added 22 of 1981 s. 2) "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) "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) "relevant mandatory provident fund scheme benefit" (有關強制性公積金計劃權益), in relation to an employee, means the accrued benefits of the employee held by the approved trustee of a mandatory provident fund scheme in respect of the employee, but does not include any part of the benefit that is attributable to the contributions paid to the scheme by the employee; (Added 4 of 1998 s. 5) "relevant occupational retirement scheme benefit" (有關職業退休計劃利益), in relation to an employee, means a benefit payable under an occupational retirement scheme on the retirement, death, incapacity or termination of service of the employee, but does not include any part of the benefit that is attributable to the contributions paid to the scheme by the employee; (Added 4 of 1998 s. 5) "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) means a day on which an employee is absent from his work by reason of his being unfit therefor on account of injury or sickness; (Added 39 of 1973 s. 2) "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) "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) (Amended 4 of 1998 s. 5) (2) No account of overtime pay shall be taken in calculating the wages of an employee for the purpose of- (a) any end of year payment under Part IIA; (b) any maternity leave pay under Part III; (c) any severance payment under Part VA; (ca) any long service payment under Part VB; (Added 76 of 1985 s. 2) (d) any sickness allowance under Part VII; (e) any holiday pay under Part VIII; or (f) any annual leave pay under Part VIIIA, 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- (a) in relation to any end of year payment under Part IIA, the expiry date of the payment period; (b) in relation to any maternity leave pay under Part III, the commencement date of maternity leave; (c) in relation to any severance payment under Part VA and any long service payment under Part VB- (i) subject to subparagraph (ii), the relevant date; (ii) where the employee's contract of employment is terminated by payment in lieu of notice in accordance with section 7, the date on which the termination takes effect; (d) in relation to any sickness allowance under Part VII, the first sickness day; (e) in relation to any holiday pay under Part VIII, the first day of the holiday; and (f) in relation to any annual leave pay under Part VIIIA, the first day of the annual leave. (Added 74 of 1997 s. 3) (2B) Notwithstanding anything contained in subsection (2A), the date specified for the purpose of subsection (2) in relation to any termination of employment is- (a) subject to paragraph (b), the relevant date; (b) where the employee's contract of employment is terminated by payment in lieu of notice in accordance with section 7, the date on which the termination takes effect. (Added 74 of 1997 s. 3) (3) Where an employee who has been employed under a continuous contract- (a) is dismissed; or (b) is laid off within the meaning of section 31E; or (c) terminates his contract of employment in circumstances specified in section 10(aa) or 31R(1)(b); or (d) dies in circumstances specified in section 31RA(1), 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) "alternative holiday" (另定假日) "annual leave" (年假) "annual leave pay" (年假薪酬) "business" (業務) "cease" (停止) "diminish" (縮減) "child" (兒童) "Commissioner" (處長) "confinement" (分娩) "contract of employment" (僱傭合約) "dangerous drug" (危險藥物) "Director" (署長) "domestic servant" (家庭傭工) "employee" (僱員) "employer" (僱主) "holiday" (假日) "holiday pay" (假日薪酬) "issue" (後嗣) "Labour Tribunal" (勞資裁處) "lock-out" (閉廠) "long service payment" (長期服務金) "mandatory provident fund scheme" (強制性公積金計劃) "maternity leave" (產假) "maternity leave pay" (產假薪酬) "Minor Employment Claims Adjudication Board" (小額薪酬索償仲裁處) "miscarriage" (流產) "occupational retirement scheme" (職業退休計劃) "outworker" (外發工) "paid sickness day" (有薪病假日) "recognized scheme of medical treatment" (認可醫療計劃) "registered Chinese medicine practitioner" (註冊中醫) "registered dentist" (註冊牙醫) "registered medical practitioner" (註冊醫生) "relevant date" (有關日期) "relevant mandatory provident fund scheme benefit" (有關強制性公積金計劃權益) "relevant occupational retirement scheme benefit" (有關職業退休計劃利益) "renewal" (續訂) "rest day" (休息日) "severance payment" (遣散費) "sickness allowance" (疾病津貼) "sickness day" (病假日) "spouse" (配偶) "statutory holiday" (法定假日) "strike" (罷工) "substituted holiday" (代替假日) "tips and service charges" (小費及服務費) "wage period" (工資期) "wages" (工資) "week" (星期) "young person" (青年) EMPLOYMENT ORDINANCE - SECT 2 Interpretation VerDate:25/01/2006 (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) "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; "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 28 weeks of pregnancy; (Added 22 of 1981 s. 2) "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) "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 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) "relevant mandatory provident fund scheme benefit" (有關強制性公積金計劃權益), in relation to an employee, means the accrued benefits of the employee held by the approved trustee of a mandatory provident fund scheme in respect of the employee, but does not include any part of the benefit that is attributable to the contributions paid to the scheme by the employee; (Added 4 of 1998 s. 5) "relevant occupational retirement scheme benefit" (有關職業退休計劃利益), in relation to an employee, means a benefit payable under an occupational retirement scheme on the retirement, death, incapacity or termination of service of the employee, but does not include any part of the benefit that is attributable to the contributions paid to the scheme by the employee; (Added 4 of 1998 s. 5) "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) means a day on which an employee is absent from his work by reason of his being unfit therefor on account of injury or sickness; (Added 39 of 1973 s. 2) "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) "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) (Amended 4 of 1998 s. 5) (2) No account of overtime pay shall be taken in calculating the wages of an employee for the purpose of- (a) any end of year payment under Part IIA; (b) any maternity leave pay under Part III; (c) any severance payment under Part VA; (ca) any long service payment under Part VB; (Added 76 of 1985 s. 2) (d) any sickness allowance under Part VII; (e) any holiday pay under Part VIII; or (f) any annual leave pay under Part VIIIA, 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- (a) in relation to any end of year payment under Part IIA, the expiry date of the payment period; (b) in relation to any maternity leave pay under Part III, the commencement date of maternity leave; (c) in relation to any severance payment under Part VA and any long service payment under Part VB- (i) subject to subparagraph (ii), the relevant date; (ii) where the employee's contract of employment is terminated by payment in lieu of notice in accordance with section 7, the date on which the termination takes effect; (d) in relation to any sickness allowance under Part VII, the first sickness day; (e) in relation to any holiday pay under Part VIII, the first day of the holiday; and (f) in relation to any annual leave pay under Part VIIIA, the first day of the annual leave. (Added 74 of 1997 s. 3) (2B) Notwithstanding anything contained in subsection (2A), the date specified for the purpose of subsection (2) in relation to any termination of employment is- (a) subject to paragraph (b), the relevant date; (b) where the employee's contract of employment is terminated by payment in lieu of notice in accordance with section 7, the date on which the termination takes effect. (Added 74 of 1997 s. 3) (3) Where an employee who has been employed under a continuous contract- (a) is dismissed; or (b) is laid off within the meaning of section 31E; or (c) terminates his contract of employment in circumstances specified in section 10(aa) or 31R(1)(b); or (d) dies in circumstances specified in section 31RA(1), 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) "alternative holiday" (另定假日) "annual leave" (年假) "annual leave pay" (年假薪酬) "business" (業務) "cease" (停止) "diminish" (縮減) "child" (兒童) "Commissioner" (處長) "confinement" (分娩) "contract of employment" (僱傭合約) "dangerous drug" (危險藥物) "Director" (署長) "domestic servant" (家庭傭工) "employee" (僱員) "employer" (僱主) "holiday" (假日) "holiday pay" (假日薪酬) "issue" (後嗣) "Labour Tribunal" (勞資裁處) "lock-out" (閉廠) "long service payment" (長期服務金) "mandatory provident fund scheme" (強制性公積金計劃) "maternity leave" (產假) "maternity leave pay" (產假薪酬) "Minor Employment Claims Adjudication Board" (小額薪酬索償仲裁處) "miscarriage" (流產) "occupational retirement scheme" (職業退休計劃) "outworker" (外發工) "paid sickness day" (有薪病假日) "recognized scheme of medical treatment" (認可醫療計劃) "registered dentist" (註冊牙醫) "registered medical practitioner" (註冊醫生) "relevant date" (有關日期) "relevant mandatory provident fund scheme benefit" (有關強制性公積金計劃權益) "relevant occupational retirement scheme benefit" (有關職業退休計劃利益) "renewal" (續訂) "rest day" (休息日) "severance payment" (遣散費) "sickness allowance" (疾病津貼) "sickness day" (病假日) "spouse" (配偶) "statutory holiday" (法定假日) "strike" (罷工) "substituted holiday" (代替假日) "tips and service charges" (小費及服務費) "wage period" (工資期) "wages" (工資) "week" (星期) "young person" (青年) EMPLOYMENT ORDINANCE - SECT 2 Interpretation VerDate:01/12/2000 (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) "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; "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 does not include a child of the employee adopted by another person; (c) does not include an illegitimate child; and (d) where polygamy lawfully subsists, does not include a child who is not an adopted child of the employee unless his mother was, at the time of his birth, the employee's principal wife- (i) in case the relevant marriage or, where appropriate, each such marriage constitutes a customary marriage for the purposes of the Marriage Reform Ordinance (Cap 178), according to Chinese law and custom; or (ii) in any other case, according to the law which, as regards the relevant marriage or marriages, was the proper personal law of the employee; (Added 52 of 1988 s. 2) "Labour Tribunal" (勞資裁處) 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 28 weeks of pregnancy; (Added 22 of 1981 s. 2) "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) "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 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) "relevant mandatory provident fund scheme benefit" (有關強制性公積金計劃權益), in relation to an employee, means the accrued benefits of the employee held by the approved trustee of a mandatory provident fund scheme in respect of the employee, but does not include any part of the benefit that is attributable to the contributions paid to the scheme by the employee; (Added 4 of 1998 s. 5) "relevant occupational retirement scheme benefit" (有關職業退休計劃利益), in relation to an employee, means a benefit payable under an occupational retirement scheme on the retirement, death, incapacity or termination of service of the employee, but does not include any part of the benefit that is attributable to the contributions paid to the scheme by the employee; (Added 4 of 1998 s. 5) "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) means a day on which an employee is absent from his work by reason of his being unfit therefor on account of injury or sickness; (Added 39 of 1973 s. 2) "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) "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) (Amended 4 of 1998 s. 5) (2) No account of overtime pay shall be taken in calculating the wages of an employee for the purpose of- (a) any end of year payment under Part IIA; (b) any maternity leave pay under Part III; (c) any severance payment under Part VA; (ca) any long service payment under Part VB; (Added 76 of 1985 s. 2) (d) any sickness allowance under Part VII; (e) any holiday pay under Part VIII; or (f) any annual leave pay under Part VIIIA, 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- (a) in relation to any end of year payment under Part IIA, the expiry date of the payment period; (b) in relation to any maternity leave pay under Part III, the commencement date of maternity leave; (c) in relation to any severance payment under Part VA and any long service payment under Part VB- (i) subject to subparagraph (ii), the relevant date; (ii) where the employee's contract of employment is terminated by payment in lieu of notice in accordance with section 7, the date on which the termination takes effect; (d) in relation to any sickness allowance under Part VII, the first sickness day; (e) in relation to any holiday pay under Part VIII, the first day of the holiday; and (f) in relation to any annual leave pay under Part VIIIA, the first day of the annual leave. (Added 74 of 1997 s. 3) (2B) Notwithstanding anything contained in subsection (2A), the date specified for the purpose of subsection (2) in relation to any termination of employment is- (a) subject to paragraph (b), the relevant date; (b) where the employee's contract of employment is terminated by payment in lieu of notice in accordance with section 7, the date on which the termination takes effect. (Added 74 of 1997 s. 3) (3) Where an employee who has been employed under a continuous contract- (a) is dismissed; or (b) is laid off within the meaning of section 31E; or (c) terminates his contract of employment in circumstances specified in section 10(aa) or 31R(1)(b); or (d) dies in circumstances specified in section 31RA(1), 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) "alternative holiday" (另定假日) "annual leave" (年假) "annual leave pay" (年假薪酬) "business" (業務) "cease" (停止) "diminish" (縮減) "child" (兒童) "Commissioner" (處長) "confinement" (分娩) "contract of employment" (僱傭合約) "dangerous drug" (危險藥物) "Director" (署長) "domestic servant" (家庭傭工) "employee" (僱員) "employer" (僱主) "holiday" (假日) "holiday pay" (假日薪酬) "issue" (後嗣) "Labour Tribunal" (勞資裁處) "lock-out" (閉廠) "long service payment" (長期服務金) "mandatory provident fund scheme" (強制性公積金計劃) "maternity leave" (產假) "maternity leave pay" (產假薪酬) "Minor Employment Claims Adjudication Board" (小額薪酬索償仲裁處) "miscarriage" (流產) "occupational retirement scheme" (職業退休計劃) "outworker" (外發工) "paid sickness day" (有薪病假日) "recognized scheme of medical treatment" (認可醫療計劃) "registered dentist" (註冊牙醫) "registered medical practitioner" (註冊醫生) "relevant date" (有關日期) "relevant mandatory provident fund scheme benefit" (有關強制性公積金計劃權益) "relevant occupational retirement scheme benefit" (有關職業退休計劃利益) "renewal" (續訂) "rest day" (休息日) "severance payment" (遣散費) "sickness allowance" (疾病津貼) "sickness day" (病假日) "spouse" (配偶) "statutory holiday" (法定假日) "strike" (罷工) "substituted holiday" (代替假日) "tips and service charges" (小費及服務費) "wage period" (工資期) "wages" (工資) "week" (星期) "young person" (青年) EMPLOYMENT ORDINANCE - SECT 2 Interpretation VerDate:12/12/1997 (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 1985s. 2) "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 boatboy 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; "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 does not include a child of the employee adopted by another person; (c) does not include an illegitimate child; and (d) where polygamy lawfully subsists, does not include a child who is not an adopted child of the employee unless his mother was, at the time of his birth, the employee's principal wife- (i) in case the relevant marriage or, where appropriate, each such marriage constitutes a customary marriage for the purposes of the Marriage Reform Ordinance (Cap 178), according to Chinese law and custom; or (ii) in any other case, according to the law which, as regards the relevant marriage or marriages, was the proper personal law of the employee; (Added 52 of 1988 s. 2) "Labour Tribunal" (勞資裁處) 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) "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 28 weeks of pregnancy; (Added 22 of 1981 s. 2) "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) "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 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) "retirement scheme" (退休計劃) means any pension scheme, provident fund scheme or any other scheme or arrangement, providing benefits on retirement or termination of service for employees based on the length of service; (Added 41 of 1990 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) means a day on which an employee is absent from his work by reason of his being unfit therefor on account of injury or sickness; (Added 39 of 1973 s. 2) "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) "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- (a) any end of year payment under Part IIA; (b) any maternity leave pay under Part III; (c) any severance payment under Part VA; (ca) any long service payment under Part VB; (Added 76 of 1985 s. 2) (d) any sickness allowance under Part VII; (e) any holiday pay under Part VIII; or (f) any annual leave pay under Part VIIIA, 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- (a) in relation to any end of year payment under Part IIA, the expiry date of the payment period; (b) in relation to any maternity leave pay under Part III, the commencement date of maternity leave; (c) in relation to any severance payment under Part VA and any long service payment under Part VB- (i) subject to subparagraph (ii), the relevant date; (ii) where the employee's contract of employment is terminated by payment in lieu of notice in accordance with section 7, the date on which the termination takes effect; (d) in relation to any sickness allowance under Part VII, the first sickness day; (e) in relation to any holiday pay under Part VIII, the first day of the holiday; and (f) in relation to any annual leave pay under Part VIIIA, the first day of the annual leave. (Added 74 of 1997 s. 3) (2B) Notwithstanding anything contained in subsection (2A), the date specified for the purpose of subsection (2) in relation to any termination of employment is- (a) subject to paragraph (b), the relevant date; (b) where the employee's contract of employment is terminated by payment in lieu of notice in accordance with section 7, the date on which the termination takes effect. (Added 74 of 1997 s. 3) (3) Where an employee who has been employed under a continuous contract- (a) is dismissed; or (b) is laid off within the meaning of section 31E; or (c) terminates his contract of employment in circumstances specified in section 10(aa) or 31R(1)(b); or (d) dies in circumstances specified in section 31RA(1), 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) "alternative holiday" (另定假日) "annual leave" (年假) "annual leave pay" (年假薪酬) "business" (業務) "cease" (停止) "diminish" (縮減) "child" (兒童) "Commissioner" (處長) "confinement" (分娩) "contract of employment" (僱傭合約) "dangerous drug" (危險藥物) "Director" (署長) "domestic servant" (家庭傭工) "employee" (僱員) "employer" (僱主) "holiday" (假日) "holiday pay" (假日薪酬) "issue" (後嗣) "Labour Tribunal" (勞資裁處) "lock-out" (閉廠) "long service payment" (長期服務金) "maternity leave" (產假) "maternity leave pay" (產假薪酬) "Minor Employment Claims Adjudication Board" (小額薪酬索償仲裁處) "miscarriage" (流產) "outworker" (外發工) "paid sickness day" (有薪病假日) "recognized scheme of medical treatment" (認可醫療計劃) "registered dentist" (註冊牙醫) "registered medical practitioner" (註冊醫生) "relevant date" (有關日期) "renewal" (續訂) "rest day" (休息日) "retirement scheme" (退休計劃) "severance payment" (遣散費) "sickness allowance" (疾病津貼) "sickness day" (病假日) "spouse" (配偶) "statutory holiday" (法定假日) "strike" (罷工) "substituted holiday" (代替假日) "tips and service charges" (小費及服務費) "wage period" (工資期) "wages" (工資) "week" (星期) "young person" (青年) EMPLOYMENT ORDINANCE - SECT 2 Interpretation VerDate:30/06/1997 (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); (Added 39 of 1973 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 1985s. 2) "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 boatboy 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; "holiday" (假日) means- (a) a statutory holiday; (b) an alternative holiday; (c) a substituted holiday; or (d) a day on which a female employee or an employee who is a young person is required by section 39(4) to be granted a holiday; (Added 39 of 1973 s. 2) "holiday pay" (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 does not include a child of the employee adopted by another person; (c) does not include an illegitimate child; and (d) where polygamy lawfully subsists, does not include a child who is not an adopted child of the employee unless his mother was, at the time of his birth, the employee's principal wife- (i) in case the relevant marriage or, where appropriate, each such marriage constitutes a customary marriage for the purposes of the Marriage Reform Ordinance (Cap 178), according to Chinese law and custom; or (ii) in any other case, according to the law which, as regards the relevant marriage or marriages, was the proper personal law of the employee; (Added 52 of 1988 s. 2) "Labour Tribunal" (勞資裁處) 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) "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 28 weeks of pregnancy; (Added 22 of 1981 s. 2) "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) "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 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) "retirement scheme" (退休計劃) means any pension scheme, provident fund scheme or any other scheme or arrangement, providing benefits on retirement or termination of service for employees based on the length of service; (Added 41 of 1990 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) means a day on which an employee is absent from his work by reason of his being unfit therefor on account of injury or sickness; (Added 39 of 1973 s. 2) "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 holiday in section 39(1) or granted under section 39(5) or (8); (Added 39 of 1973 s. 2. Amended 71 of 1976 s. 2) "strike" (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 under section 39(3); (Added 39 of 1973 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) "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- (a) any end of year payment under Part IIA; (b) any maternity leave pay under Part III; (c) any severance payment under Part VA; (ca) any long service payment under Part VB; (Added 76 of 1985 s. 2) (d) any sickness allowance under Part VII; (e) any holiday pay under Part VIII; or (f) any annual leave pay under Part VIIIA, 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- (a) in relation to any end of year payment under Part IIA, the expiry date of the payment period; (b) in relation to any maternity leave pay under Part III, the commencement date of maternity leave; (c) in relation to any severance payment under Part VA and any long service payment under Part VB- (i) subject to subparagraph (ii), the relevant date; (ii) where the employee's contract of employment is terminated by payment in lieu of notice in accordance with section 7, the date on which the termination takes effect; (d) in relation to any sickness allowance under Part VII, the first sickness day; (e) in relation to any holiday pay under Part VIII, the first day of the holiday; and (f) in relation to any annual leave pay under Part VIIIA, the first day of the annual leave. (Added 74 of 1997 s. 3) (2B) Notwithstanding anything contained in subsection (2A), the date specified for the purpose of subsection (2) in relation to any termination of employment is- (a) subject to paragraph (b), the relevant date; (b) where the employee's contract of employment is terminated by payment in lieu of notice in accordance with section 7, the date on which the termination takes effect. (Added 74 of 1997 s. 3) (3) Where an employee who has been employed under a continuous contract- (a) is dismissed; or (b) is laid off within the meaning of section 31E; or (c) terminates his contract of employment in circumstances specified in section 10(aa) or 31R(1)(b); or (d) dies in circumstances specified in section 31RA(1), 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) "alternative holiday" (另定假日) "annual leave" (年假) "annual leave pay" (年假薪酬) "business" (業務) "cease" (停止) "diminish" (縮減) "child" (兒童) "Commissioner" (處長) "confinement" (分娩) "contract of employment" (僱傭合約) "dangerous drug" (危險藥物) "Director" (署長) "domestic servant" (家庭傭工) "employee" (僱員) "employer" (僱主) "holiday" (假日) "holiday pay" (假日薪酬) "issue" (後嗣) "Labour Tribunal" (勞資裁處) "lock-out" (閉廠) "long service payment" (長期服務金) "maternity leave" (產假) "maternity leave pay" (產假薪酬) "Minor Employment Claims Adjudication Board" (小額薪酬索償仲裁處) "miscarriage" (流產) "outworker" (外發工) "paid sickness day" (有薪病假日) "recognized scheme of medical treatment" (認可醫療計劃) "registered dentist" (註冊牙醫) "registered medical practitioner" (註冊醫生) "relevant date" (有關日期) "renewal" (續訂) "rest day" (休息日) "retirement scheme" (退休計劃) "severance payment" (遣散費) "sickness allowance" (疾病津貼) "sickness day" (病假日) "spouse" (配偶) "statutory holiday" (法定假日) "strike" (罷工) "substituted holiday" (代替假日) "tips and service charges" (小費及服務費) "wage period" (工資期) "wages" (工資) "week" (星期) "young person" (青年) EMPLOYMENT ORDINANCE - SECT 3 Meaning of continuous contract and onus of proof thereof VerDate:30/06/1997 (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. (Added 5 of 1970 s. 4. Amended 71 of 1970 s. 2) "continuous contract" (連續性合約) EMPLOYMENT ORDINANCE - SECT 4 Application of Ordinance VerDate:30/06/1997 (1) Subject to subsection (2) and section 69, this Ordinance applies to every employee engaged under a contract of employment, to an employer of such employee and to a contract of employment between such employer and employee. (2) Subject to Part IVA, this Ordinance does not apply- (Amended 51 of 1974 s. 2) (a) (Repealed 41 of 1990 s. 3) (b) to a person who is a member of the family of the proprietor of the business in which he is employed and who dwells in the same dwelling as the proprietor; (c) to an employee as defined in the Contracts for Employment Outside Hong Kong Ordinance (Cap 78); (Amended 33 of 1992 s. 15) (d) to a person who is serving under a crew agreement within the meaning of the Merchant Shipping (Seafarers) Ordinance (Cap 478), or on board a ship which is not registered in Hong Kong. (Replaced 44 of 1995 s. 143) (e) (Repealed 8 of 1976 s. 49) (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. EMPLOYMENT ORDINANCE - SECT 4A Authorization of public officers VerDate:30/06/1997 The Commissioner may in writing authorize any public officer or class of public officer to exercise or perform any or all of the powers, functions or duties conferred or imposed on the Commissioner under this Ordinance. (Added 10 of 1980 s. 2) EMPLOYMENT ORDINANCE - SECT 4B Chief Executive may give directions VerDate:01/07/1997 Adaptation amendments retroactively made - see 56 of 2000 s. 3 (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). (Added 10 of 1980 s. 2. Amended 56 of 2000 s. 3) EMPLOYMENT ORDINANCE - SECT 4B Governor may give directions VerDate:30/06/1997 (1) The Governor may give such directions as he thinks fit, either generally or in any particular case, with respect to the exercise or performance by any public officer of any powers, functions or duties under this Ordinance. (2) A public officer shall, in the exercise or performance of his powers, functions or duties under this Ordinance, comply with any directions given by the Governor under subsection (1). (Added 10 of 1980 s. 2) EMPLOYMENT ORDINANCE - SECT 5 Duration of contracts of employment VerDate:30/06/1997 PART II CONTRACTS OF EMPLOYMENT (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. EMPLOYMENT ORDINANCE - SECT 6 Termination of contract by notice VerDate:12/04/2001 "month" (月) (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- (a) in the case of a contract which is deemed by virtue of the provisions of section 5 to be a contract for 1 month renewable from month to month and which does not make provision for the length of notice required to terminate the contract, not less than 1 month; (Amended 44 of 1971 s. 2) (b) in the case of a contract which is deemed by virtue of the provisions of section 5 to be a contract for 1 month renewable from month to month and which makes provision for the length of notice required to terminate the contract, the agreed period, but not less than 7 days; (Added 44 of 1971 s. 2) (c) in every other case, the agreed period, but not less than 7 days in the case of a continuous contract. (2A) Without prejudice to section 41D, annual leave to which an employee is entitled under section 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) (a) by either party at any time during the first month of such employment without notice or payment in lieu; (b) by either party at any time after the first month of such employment by giving to the other party notice of not less than 7 days. (Amended 48 of 1984 s. 4) (3A) Where in any contract of employment, whether in writing or oral, it has been expressly agreed that the employment is on probation and the contract makes provision for the length of notice required for its termination such contract may be terminated- (a) notwithstanding the length of notice provided for in the contract, by either party at any time during the first month of such employment without notice or payment in lieu; (b) by either party at any time after the first month of such employment by giving to the other party notice of the agreed period, but not less than 7 days. (Added 48 of 1984 s. 4) (4) For the purposes of this section the expression "month" (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. EMPLOYMENT ORDINANCE - SECT 6 Termination of contract by notice VerDate:30/06/1997 (1) Subject to subsections (2), (2A), (2B), (3) and (3A) and sections 15 and 33(4B), (4BA) and (4BB), 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) (2) The length of notice required to terminate a contract of employment shall be- (a) in the case of a contract which is deemed by virtue of the provisions of section 5 to be a contract for 1 month renewable from month to month and which does not make provision for the length of notice required to terminate the contract, not less than 1 month; (Amended 44 of 1971 s. 2) (b) in the case of a contract which is deemed by virtue of the provisions of section 5 to be a contract for 1 month renewable from month to month and which makes provision for the length of notice required to terminate the contract, the agreed period, but not less than 7 days; (Added 44 of 1971 s. 2) (c) in every other case, the agreed period, but not less than 7 days in the case of a continuous contract. (2A) Without prejudice to section 41D, annual leave to which an employee is entitled under section 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) (a) by either party at any time during the first month of such employment without notice or payment in lieu; (b) by either party at any time after the first month of such employment by giving to the other party notice of not less than 7 days. (Amended 48 of 1984 s. 4) (3A) Where in any contract of employment, whether in writing or oral, it has been expressly agreed that the employment is on probation and the contract makes provision for the length of notice required for its termination such contract may be terminated- (a) notwithstanding the length of notice provided for in the contract, by either party at any time during the first month of such employment without notice or payment in lieu; (b) by either party at any time after the first month of such employment by giving to the other party notice of the agreed period, but not less than 7 days. (Added 48 of 1984 s. 4) (4) For the purposes of this section the expression "month" (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. "month" (月) EMPLOYMENT ORDINANCE - SECT 7 Termination of contract by payment in lieu of notice VerDate:13/07/2007 (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 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 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— (a) where the length of notice required to terminate the contract under section 6 is a period expressed in days or weeks, a sum calculated by multiplying the number of days in the period for which wages would normally be payable to the employee by the daily average of the wages earned by the employee during— (i) the period of 12 months immediately before the date on which the party terminating the contract gives notice of the termination to the other party (“date of notification”); or (ii) if the employee has been employed by the employer concerned for a period shorter than 12 months immediately before the date of notification, the shorter period; or (b) where the length of notice required to terminate the contract under section 6 is a period expressed in months, a sum calculated by multiplying the number of months required by the monthly average of the wages earned by the employee during— (i) the period of 12 months immediately before the date of notification; or (ii) if the employee has been employed by the employer concerned for a period shorter than 12 months immediately before the date of notification, the shorter period. (Added 7 of 2007 s. 3) (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— (a) any period therein for which the employee was not paid his wages or full wages by reason of— (i) any maternity leave, rest day, sickness day, holiday or annual leave taken by the employee; (ii) any leave taken by the employee with the agreement of his employer; (iii) his not being provided by his employer with work on any normal working day; or (iv) his absence from work due to temporary incapacity for which compensation is payable under section 10 of the Employees’ Compensation Ordinance (Cap 282); and (b) any wages paid to him for the period referred to in paragraph (a), 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) "wages" (工資) EMPLOYMENT ORDINANCE - SECT 7 Termination of contract by payment in lieu of notice VerDate:12/04/2001 (1) 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 a sum equal to the amount of wages which would have accrued to the employee during the period of notice required by section 6. (Amended 44 of 1971 s. 3; 57 of 1983 s. 3; 103 of 1995 s. 2; 7 of 2001 s. 3) (2) Either party to a contract of employment, having given proper notice in accordance with section 6, may at any time thereafter terminate the contract by agreeing to pay to the other party such proportion of the sum referred to in subsection (1) as is proportionate to the period between the termination of the contract and the time when the notice given would have expired. (Amended 44 of 1971 s. 3) (3) In the case of an employee whose remuneration is calculated by the piece or task the amount of wages which would have accrued to such employee during the period of notice referred to in subsection (1) shall be deemed to be the amount of wages earned by the employee during the equivalent period immediately prior to the giving of the notice or, if for any reason it is impracticable to compute the amount in this manner, it may be calculated by reference to the amount earned during such equivalent period by a person in the same trade or occupation at the same work in the same district. (4) 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) "wages" (工資) EMPLOYMENT ORDINANCE - SECT 7 Termination of contract by payment in lieu of notice VerDate:30/06/1997 (1) Subject to section 33(4B), (4BA) and (4BB), either party to a contract of employment may at any time terminate the contract without notice by agreeing to pay to the other party a sum equal to the amount of wages which would have accrued to the employee during the period of notice required by section 6. (Amended 44 of 1971 s. 3; 57 of 1983 s. 3; 103 of 1995 s. 2) (2) Either party to a contract of employment, having given proper notice in accordance with section 6, may at any time thereafter terminate the contract by agreeing to pay to the other party such proportion of the sum referred to in subsection (1) as is proportionate to the period between the termination of the contract and the time when the notice given would have expired. (Amended 44 of 1971 s. 3) (3) In the case of an employee whose remuneration is calculated by the piece or task the amount of wages which would have accrued to such employee during the period of notice referred to in subsection (1) shall be deemed to be the amount of wages earned by the employee during the equivalent period immediately prior to the giving of the notice or, if for any reason it is impracticable to compute the amount in this manner, it may be calculated by reference to the amount earned during such equivalent period by a person in the same trade or occupation at the same work in the same district. (4) 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) "wages" (工資) EMPLOYMENT ORDINANCE - SECT 8 Saving of rights VerDate:30/06/1997 Nothing in section 6 or 7 shall be taken- (a) to prevent either party to a contract of employment from waiving, at the time notice is required to be given for the purposes of section 6(2), (3) or (3A), his right to notice or to payment in lieu of notice; (Amended 48 of 1984 s. 5) (b) to affect the right of a party to a contract of employment to terminate the contract without notice or payment in lieu under section 9, 10 or 11(2). EMPLOYMENT ORDINANCE - SECT 8A Damages for wrongful termination of contract VerDate:13/07/2007 (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) (Added 14 of 1975 s. 2. Amended 7 of 2007 s. 4) EMPLOYMENT ORDINANCE - SECT 8A Damages for wrongful termination of contract VerDate:30/06/1997 (1) Without prejudice to section 9, 10 or 11(2), where a contract of employment is terminated otherwise than in accordance with section 6 or 7, a sum equal to the amount of wages which would have accrued to the employee during the period of notice required by section 6 shall be payable by the party terminating the contract to the other party. (2) Without prejudice to section 9, 10 or 11(2), where a party to a contract of employment, having given proper notice in accordance with section 6 thereafter terminates the contract before the expiry of the period of notice otherwise than in accordance with section 7, such proportion of the sum equal to the amount of wages which would have accrued to the employee during the period of notice as is proportionate to the period between the termination of the contract and the time when the notice given would have expired shall be payable by the party terminating the contract to the other party. (Added 14 of 1975 s. 2) EMPLOYMENT ORDINANCE - SECT 9 Termination of contract without notice by employer VerDate:07/07/2000 (1) An employer may terminate a contract of employment without notice or payment in lieu- (Amended 51 of 2000 s. 2) (a) if an employee, in relation to his employment- (i) wilfully disobeys a lawful and reasonable order; (ii) misconducts himself, such conduct being inconsistent with the due and faithful discharge of his duties; (iii) is guilty of fraud or dishonesty; or (iv) is habitually neglectful in his duties; or (b) on any other ground on which he would be entitled to terminate the contract without notice at common law. (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) EMPLOYMENT ORDINANCE - SECT 9 Termination of contract without notice by employer VerDate:30/06/1997 An employer may terminate a contract of employment without notice or payment in lieu- (a) if an employee, in relation to his employment- (i) wilfully disobeys a lawful and reasonable order; (ii) misconducts himself, such conduct being inconsistent with the due and faithful discharge of his duties; (iii) is guilty of fraud or dishonesty; or (iv) is habitually neglectful in his duties; or (b) on any other ground on which he would be entitled to terminate the contract without notice at common law. EMPLOYMENT ORDINANCE - SECT 10 Termination of contract without notice by employee VerDate:01/12/2006 An employee may terminate his contract of employment without notice or payment in lieu- (a) if he reasonably fears physical danger by violence or disease such as was not contemplated by his contract of employment expressly or by necessary implication; (aa) if- (i) he has been employed under the contract for not less than 5 years; and (Amended 41 of 1990 s. 4; 62 of 1992 s. 3) (ii) by a certificate in the form specified by the Commissioner under section 49 and issued by a registered medical practitioner or registered Chinese medicine practitioner, he is certified as being permanently unfit for a particular type of work specified in the certificate for a reason or reasons stated therein; and (Amended 68 of 1990 s. 24; 61 of 1993 s. 3; 16 of 2006 s. 3) (iii) he is engaged in that type of work under the contract; (Added 52 of 1988 s. 4) (b) if he is subjected to ill-treatment by the employer; or (c) on any other ground on which he would be entitled to terminate the contract without notice at common law. EMPLOYMENT ORDINANCE - SECT 10 Termination of contract without notice by employee VerDate:30/06/1997 An employee may terminate his contract of employment without notice or payment in lieu- (a) if he reasonably fears physical danger by violence or disease such as was not contemplated by his contract of employment expressly or by necessary implication; (aa) if- (i) he has been employed under the contract for not less than 5 years; and (Amended 41 of 1990 s. 4; 62 of 1992 s. 3) (ii) by a certificate in the form specified by the Commissioner under section 49 and issued by a registered medical practitioner, he is certified as being permanently unfit for a particular type of work specified in the certificate for a reason or reasons stated therein; and (Amended 68 of 1990 s. 24; 61 of 1993 s. 3) (iii) he is engaged in that type of work under the contract; (Added 52 of 1988 s. 4) (b) if he is subjected to ill-treatment by the employer; or (c) on any other ground on which he would be entitled to terminate the contract without notice at common law. EMPLOYMENT ORDINANCE - SECT 10A Deemed termination of contract under section 7 VerDate:30/06/1997 (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. (Added 74 of 1997 s. 5) EMPLOYMENT ORDINANCE - SECT 11 Suspension from employment in certain cases VerDate:30/06/1997 (1) Notwithstanding any other provision of this Ordinance or of any other law, an employer may without notice or payment in lieu suspend from employment any employee for a period not exceeding 14 days- (a) as a disciplinary measure for any reason for which the employer could have terminated the contract of employment under section 9; (b) pending a decision by the employer as to whether or not he will exercise his right to terminate the contract of employment under section 9; or (c) pending the outcome of any criminal proceedings against the employee arising out of or connected with his employment: Provided that where such criminal proceedings are not concluded within the period of 14 days such suspension may be extended till the conclusion of the criminal proceedings. (2) An employee who is suspended from employment under subsection (1) may at any time during the period of his suspension, notwithstanding sections 6 and 7, terminate his contract of employment without notice or payment in lieu. (3) Without prejudice to the provisions of subsection (1), an employer may lay-off an employee for such periods as are expressly agreed in, or may be implied from, the contract of employment. (4) Notwithstanding subsection (3), the period of lay-off shall in no case exceed- (a) a total of half of the total number of normal working days in any period of 4 consecutive weeks; or (b) a total of one-third of the total number of normal working days in any period of 26 consecutive weeks. (Added 41 of 1990 s. 5) EMPLOYMENT ORDINANCE - SECT 11A Interpretation VerDate:13/07/2007 PART IIA END OF YEAR PAYMENT (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" (農歷年) 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 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 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— (a) the period of 12 months immediately before the day on which the end of year payment becomes due to the employee under section 11E(1) or (2) or the day on which the proportion thereof becomes due to the employee under section 11F(3) or (4) (as appropriate) ("due day"); or (b) if the employee has been employed by the employer concerned for a period shorter than 12 months immediately before the due day, the shorter period. (Added 7 of 2007 s. 5) (4) In calculating the monthly average of the wages earned by an employee during the period of 12 months or the shorter period— (a) any period therein for which the employee was not paid his wages or full wages by reason of— (i) any maternity leave, rest day, sickness day, holiday or annual leave taken by the employee; (ii) any leave taken by the employee with the agreement of his employer; (iii) his not being provided by his employer with work on any normal working day; or (iv) his absence from work due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap 282); and (b) any wages paid to him for the period referred to in paragraph (a), 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) (Part IIA added 48 of 1984 s. 6) "end of year payment" (年終酬金) "lunar year" (農歷年) "payment period" (酬金期) "proportion of the end of year payment" (部分年終酬金) "wages" (工資) EMPLOYMENT ORDINANCE - SECT 11A Interpretation VerDate:30/06/1997 PART IIA END OF YEAR PAYMENT In this Part, unless the context otherwise requires- "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) "full month's wages" (全月工資) means- (a) in the case of an employee whose wages are computed by reference to a monthly rate, his monthly rate of pay; and (b) in any other case, a sum equivalent to the average daily wage earned by the employee multiplied by 26, and for the purposes of this paragraph the average daily wage shall be the average of the daily wages earned by the employee on each day on which he worked during every complete wage period, comprising not less than 28 days and not more than 31 days, immediately preceding or expiring on- (i) the day on which the end of year payment becomes due under section 11E(1) or (2); or (ii) the day on which the proportion of the end of year payment becomes due under section 11F(3) or (4); "lunar year" (農歷年) 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. (Part IIA added 48 of 1984 s. 6) "end of year payment" (年終酬金) "full month's wages" (全月工資) "lunar year" (農歷年) "payment period" (酬金期) "proportion of the end of year payment" (部分年終酬金) EMPLOYMENT ORDINANCE - SECT 11AA Presumption VerDate:30/06/1997 (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. (Added 74 of 1997 s. 7) EMPLOYMENT ORDINANCE - SECT 11B Application of Part IIA VerDate:30/06/1997 (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. EMPLOYMENT ORDINANCE - SECT 11C Payment period VerDate:30/06/1997 The payment period in respect of which an end of year payment is payable under this Part shall be- (a) the payment period specified in that behalf in the contract of employment; or (b) if a payment period is not so specified, a lunar year. (Part IIA added 48 of 1984 s. 6) EMPLOYMENT ORDINANCE - SECT 11D Amount of end of year payment VerDate:30/06/1997 An end of year payment payable to an employee to whom this Part applies who has been employed by the same employer for the whole of a payment period shall be- (a) the end of year payment specified in that behalf in the contract of employment; or (b) if an end of year payment is not so specified, a sum equivalent to a full month's wages of the employee. (Part IIA added 48 of 1984 s. 6) EMPLOYMENT ORDINANCE - SECT 11E Time of payment of end of year payment VerDate:30/06/1997 (1) An end of year payment payable to an employee to whom this Part applies in respect of a payment period shall become due to the employee- (a) subject to subsection (2), on the day specified in that behalf in the contract of employment; or (b) if a day is not so specified, on the last day of the payment period, and shall be paid as soon as is practicable but in any case not later than 7 days after that day but nothing in this section shall be construed as preventing the payment of the end of year payment at any time before that day. (2) Where the contract of employment of an employee to whom this Part applies who has been employed for the whole of a payment period is terminated after the expiry of the payment period but before the end of year payment becomes due on the day specified in the contract, the end of year payment shall, notwithstanding that a day is so specified, become due to the employee- (a) on the day on which the contract of employment terminates; or (b) in the case of an end of year payment that falls to be calculated by reference to any profits of the employer, on the day on which the profits of the employer are ascertained, and shall be paid as soon as is practicable but in any case not later than 7 days after that day. (Part IIA added 48 of 1984 s. 6) EMPLOYMENT ORDINANCE - SECT 11F Proportion of the end of year payment VerDate:12/04/2001 (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) (a) the contract of employment is terminated- (i) at any time during the payment period; or (ii) on the expiry of the payment period; or (Replaced 7 of 2001 s. 4) (b) the employee continues to be employed by the employer after the expiry of the payment period, the employee shall be paid a proportion, calculated in accordance with subsection (2), of the end of year payment that would have been payable under this Part if he had been employed by the same employer for the whole of the payment period. (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- (a) by the employee (except such a termination which is in accordance with section 10); or (b) in accordance with section 9. (Added 7 of 2001 s. 4) (2) The proportion of the end of year payment payable under subsection (1) shall be- (a) the proportion specified in that behalf in the contract of employment; or (b) if a proportion is not so specified, the sum which bears the same proportion to a full month's wages of the employee as his period of service under the contract of employment in the payment period bears to that payment period. (3) The proportion of the end of year payment payable under subsection (1) shall become due to the employee- (a) under paragraph (a) of that subsection- (i) on the day on which the contract of employment terminates; or (ii) in the case of a proportion of an end of year payment that falls to be calculated by reference to any profits of the employer, on the day on which the profits of the employer are ascertained; or (b) under paragraph (b) of that subsection- (i) subject to subsection (4), on the day specified in the contract of employment as the day on which the end of year payment becomes due; or (ii) if a day is not so specified, on the last day of the payment period, and shall be paid as soon as is practicable but in any case not later than 7 days after that day but nothing in this subsection shall be construed as preventing the payment of the proportion of the end of year payment at any time before that day. (4) Where the contract of employment of an employee to whom subsection (1)(b) applies is terminated after the expiry of the payment period but before the end of year payment becomes due on the day specified in the contract, the proportion of the end of year pay