Hong Kong Ordinances

EMPLOYMENT ORDINANCE - SECT 41F

Annual leave shutdown

(1) Every employer who intends to close down his business or part thereof for
the purpose of granting annual leave to any of his employees shall give one
month's notice in writing of his intention so to do to every employee who will
as a result have to take annual leave or otherwise stop work during the period
of closure.

(2) The provisions of subsection (1) shall be deemed to be complied with if
not later than one month before commencement of the period of closure, the
employer exhibits in a conspicuous place in the place of employment notice of
the closure and of the names of all employees who will as a result have to
take annual leave or otherwise stop working, or in lieu of such names, a
description or other details enabling such employees to be clearly identified.

(3) Every person who is an employee at the commencement of the period during
which the business or part thereof is closed down for the purpose specified in
subsection (1), and who is not otherwise entitled to annual leave pay in
respect of any day during that period, shall, as regards the period beginning
on the appropriate day and ending on the day preceding the first day of the
close down, be entitled to annual leave calculated in accordance with
subsection (4). (Amended 53 of 1990 s. 4)

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

   (a)  a calculation shall be made using the formula
A _______ × B
365 where- A is the number of days in the period beginning on the relevant day
and ending on the day preceding the first day of the close down as regards
which the entitlement arose; and B is the annual leave to which the employee
would be entitled under this Ordinance had there been no close down (or
partial close down) of the business concerned and had he been in his
employment under a continuous  contract for the period of 12 months beginning
on the relevant day;

   (b)  where the result is not a whole number, the result shall be rounded up
        to the next whole number; and

   (c)  (i) if the result or, where appropriate, the result when rounded up

        (which result in this section referred to as "the calculated number") 
equals or is less than the number of days occurring during the relevant close
down being days and as regards none of which the employee is, apart from
subsection (3), entitled to annual leave (which days are in this
section referred to as "relevant closure days"), the amount of annual  leave
shall equal the number of relevant closure days; or

        (ii)   if the calculated number exceeds the number of
               relevant closure days, the number of days of annual leave shall
               equal the calculated number. (Added 53 of 1990 s. 4)

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

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

(7) In this section "the relevant day" (有關日期) means, in relation to an
employee-

   (a)  where the employee previously became entitled under subsection (3) to
        any annual leave in the immediately preceding period of 12 months, the
        first day of the close down as regards which the entitlement arose, to
        where he became so entitled more than once in such period of 12
        months, the first day of the more or most recent, as appropriate, of
        such close downs; or

   (b)  in any other case-

        (i)    the day following the end of the employee's last (or only)
               leave year; or

        (ii)   where there is no such leave year, the day on which his
               employment commenced. (Added 53 of 1990 s. 4)

"the relevant day" (有關日期)