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 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 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 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 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 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 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 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 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 payment payable under subsection (1) shall, notwithstanding that a day is so specified, become due to the employee- (a) on the day on which the contract of employment terminates; or (b) in the case of a proportion of an end of year payment that falls to be calculated by reference to any profits of the employer, on the day on which the profits of the employer are ascertained, and shall be paid as soon as is practicable but in any case not later than 7 days after that day. (Part IIA added 48 of 1984 s. 6) EMPLOYMENT ORDINANCE - SECT 12 Maternity leave VerDate:30/06/1997 Due to technical constraints, sections 12A and 12AA of this Ordinance are placed after section 12 in the BLIS system. The correct sequence of the sections should be "12A, 12, 12AA". (1) A female employee employed under a continuous contract immediately before taking any leave under this Part shall be entitled to maternity leave under this Part. (Replaced 73 of 1997 s. 3) (2) Maternity leave shall be the aggregate of- (a) a continuous period of 10 weeks from and inclusive of- (i) the date of commencement of maternity leave as determined under section 12AA; or (ii) the actual date of confinement, if confinement occurs before the date of commencement mentioned in subparagraph (i); (b) a further period equal to the number of days, if any, beginning on the day after the expected date of confinement up to and including the actual date of confinement; such further period of leave is to be taken immediately following the period of leave under paragraph (a); and (c) a further period, not exceeding 4 weeks, on grounds of illness or disability arising out of the pregnancy or confinement. (Replaced 73 of 1997 s. 3) (3) The period of maternity leave under subsection (2)(c) may be taken- (a) wholly or in part immediately before the period mentioned in subsection (2)(a); (b) wholly or in part immediately after the period mentioned in subsection (2)(a) or (b), as the case may be. (Replaced 73 of 1997 s. 3) (4) Before taking leave, a female employee who intends to take any period of maternity leave under subsection (2) shall give notice of her pregnancy and of her intention to take maternity leave to her employer after her pregnancy has been confirmed by a medical certificate; the presentation of a medical certificate to the employer by the female employee confirming her pregnancy shall be a notice for the purpose of this subsection. (Replaced 73 of 1997 s. 3) (4A) A female employee who has given notice under subsection (4) shall, if her pregnancy ceases otherwise than by reason of confinement, give notice of such cessation of pregnancy to her employer as soon as is reasonably practicable. (Added 55 of 1987 s. 3) (5) If her confinement takes place- (a) before notice under subsection (4) is given; or (b) after notice under subsection (4) is given but before the commencement of the period of maternity leave under subsection (2)(a)(i), the female employee shall, within 7 days of her confinement, give notice to her employer of the date of confinement and of her intention to take any period of maternity leave under subsection (2)(a). (Replaced 73 of 1997 s. 3) (6) A female employee who gives notice under subsection (4) shall, if so required by her employer, produce a medical certificate specifying the expected date of confinement. (Replaced 73 of 1997 s. 3) (7) A female employee who gives notice under subsection (5) shall, if so required by her employer, produce a medical certificate specifying the date of confinement. (Replaced 73 of 1997 s. 3) (7A) A female employee who may take any period of maternity leave under subsection (2)(b) shall, if so required by her employer, produce a medical certificate specifying the date of confinement. (Added 73 of 1997 s. 3) (8) A female employee who intends to take any period of maternity leave under subsection (2)(c) shall give notice to that effect to her employer and shall, if so required by her employer, produce a medical certificate certifying as to the illness or disability. (Amended 73 of 1997 s. 3) (9) (Repealed 73 of 1997 s. 3) (10) The continuity of employment of a female employee shall not be treated as broken by her taking maternity leave. (Added 22 of 1981 s. 3) (11) For the avoidance of doubt it is declared that maternity leave is, and shall be granted, in addition to annual leave to which a female employee is entitled under this Ordinance and that any rest day or holiday that falls due during maternity leave shall be counted as part of the maternity leave and shall not give rise to any entitlement to an additional or other rest day or holiday or to holiday pay in the case of a female employee who is paid maternity leave pay for that holiday; and where no maternity leave pay is paid to the female employee for that holiday she shall be paid holiday pay for that holiday. (Added 22 of 1981 s. 3. Amended 48 of 1984 s. 7) EMPLOYMENT ORDINANCE - SECT 12A Interpretation VerDate:30/06/1997 Due to technical constraints, sections 12A and 12AA of this Ordinance are placed after section 12 in the BLIS system. The correct sequence of the sections should be "12A, 12, 12AA". PART III MATERNITY PROTECTION In this Part, unless the context otherwise requires- "pregnant employee" (懷孕僱員) means a female employee whose pregnancy has been confirmed by a medical certificate. (Added 73 of 1997 s. 2) "pregnant employee" (懷孕僱員) EMPLOYMENT ORDINANCE - SECT 12AA Commencement of maternity leave VerDate:30/06/1997 Due to technical constraints, sections 12A and 12AA of this Ordinance are placed after section 12 in the BLIS system. The correct sequence of the sections should be "12A, 12, 12AA". (1) With the agreement of her employer, a pregnant employee may decide on the date of commencement of her 10 weeks maternity leave, provided that such date is within a period of not less than 2 weeks before, and not more than 4 weeks before, the expected date of confinement. (2) If the employee does not exercise her option to decide on the date of commencement in subsection (1), or if she fails to secure her employer's agreement to her proposed leave schedule, the date of commencement of maternity leave shall be 4 weeks immediately before the expected date of confinement. (Added 73 of 1997 s. 4) EMPLOYMENT ORDINANCE - SECT 13 Authority to issue medical certificates VerDate:01/12/2006 (1) A medical certificate for the purposes of section 12(4) or (6) or 12AA shall be issued by— (a) a registered medical practitioner; (b) a registered Chinese medicine practitioner; or (c) notwithstanding section 16 of the Midwives Registration Ordinance (Cap 162), a midwife registered under section 8, or deemed to be registered under section 25, of that Ordinance. (2) A medical certificate for the purposes of section 12(7) or (7A) shall be issued by— (a) a registered medical practitioner; or (b) notwithstanding section 16 of the Midwives Registration Ordinance (Cap 162), a midwife registered under section 8, or deemed to be registered under section 25, of that Ordinance. (3) A medical certificate for the purposes of section 12(8) or 15AA shall be issued by— (a) a registered medical practitioner; or (b) a registered Chinese medicine practitioner. (Replaced 16 of 2006 s. 4) EMPLOYMENT ORDINANCE - SECT 14 Payment for maternity leave VerDate:13/07/2007 (1) A female employee shall not be entitled to wages in respect of the period of her maternity leave except as provided in this section or as provided in her contract of employment if such contract provides for paid maternity leave on terms better than in this section. (2) An employer shall pay a female employee maternity leave pay for the period of maternity leave taken by her and to which she is entitled under section 12(2)(a) if she— (Amended 73 of 1997 s. 6) (a) has been employed by that employer under a continuous contract for a period of not less than 40 weeks immediately before the date of her commencement of maternity leave as determined under section 12AA; (Amended 5 of 1995 s. 4; 73 of 1997 s. 6) (b) has given notice under section 12(4) or (5); (c) has complied with any requirement by her employer under section 12(6) or (7); and (d) (Repealed 73 of 1997 s. 6) (3) For the purposes of subsections (3A), (3B) and (3C), “wages” (工 資) includes any sum paid by an employer in respect of— (a) a day of maternity leave, a rest day, a sickness day, a holiday or a day of annual leave taken by the employee; (b) a day of leave taken by the employee with the agreement of her employer; (c) a normal working day on which the employee is not provided with work; (d) a day of absence from work of the employee due to temporary incapacity for which compensation is payable under section 10 of the Employees’ Compensation Ordinance (Cap 282). (Replaced 7 of 2007 s. 6) (3A) Maternity leave pay payable under this section is to be calculated at four-fifths of the daily average of the wages earned by the female employee during— (a) the period of 12 months immediately before the date of commencement of her maternity leave; or (b) if the employee has been employed by the employer concerned for a period shorter than 12 months immediately before the date of commencement of her maternity leave, the shorter period, but no maternity leave pay is payable in respect of a day on which the female employee would not have worked had she not been on maternity leave and for which no wages would normally be payable by the employer. (Added 7 of 2007 s. 6) (3B) In calculating the daily average of the wages earned by a female employee during the period of 12 months or the shorter period— (a) any period therein for which the employee was not paid her 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 her employer; (iii) her not being provided by her employer with work on any normal working day; or (iv) her 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 her for the period referred to in paragraph (a), are to be disregarded. (Added 7 of 2007 s. 6) (3C) For the avoidance of doubt, if the amount of the wages paid to a female employee in respect of a day specified in subsection (3) is only a fraction of the amount earned by the employee on a normal working day, the wages and the day are to be disregarded in accordance with subsection (3B). (Added 7 of 2007 s. 6) (3D) Despite subsection (3A), if for any reason it is impracticable to calculate the daily average of the wages earned by a female employee in the manner provided in that subsection, the amount may be calculated by reference to the wages earned by a person who was employed at the same work by the same employer during the period of 12 months immediately before the date of commencement of the employee’s maternity leave, or, if there is no such person, by a person who was employed in the same trade or occupation and at the same work in the same district during the period of 12 months immediately before the date of commencement of the employee’s maternity leave. (Added 7 of 2007 s. 6) (4) Maternity leave pay under this section shall be paid by an employer on the same day and in the same manner as he would have been required to pay wages to the female employee if she had not taken maternity leave and had continued in his employ. (5) A female employee who, without the prior permission of her employer, works for another employer during any period of maternity leave under section 12(2)(a) shall forfeit her entitlement to maternity leave pay during that period of maternity leave. (Amended 73 of 1997 s. 6) (6) (Repealed 73 of 1997 s. 6) (7) If, pursuant to the terms of her contract of employment or any other agreement or for any other reason, a female employee is paid by her employer a sum of money in respect of any period of her maternity leave, the maternity leave pay payable to the employee in respect of that period is to be reduced by that sum. (Added 7 of 2007 s. 6) (Replaced 22 of 1981 s. 4) “wages” (工資) EMPLOYMENT ORDINANCE - SECT 15 Prohibition against termination of employment VerDate:13/07/2007 (1) Subject to subsections (1A) and (1B)- (a) after a pregnant employee has served notice of pregnancy on her employer, the employer shall not terminate her continuous contract of employment otherwise than in accordance with section 9 during the period from the date on which her pregnancy is confirmed by a medical certificate to the date on which she is due to return to work on the expiry of her maternity leave or the date of cessation of pregnancy (otherwise than by reason of confinement); (b) if a pregnant employee has served such notice on her employer immediately after being informed of the termination of her contract of employment where the termination was made otherwise than in accordance with section 9 by her employer, the employer shall immediately withdraw the termination or notice of termination in which event the termination or notice of termination shall be treated as if it had not taken place. (Replaced 7 of 2001 s. 5) (1A) Where in a contract of employment of a pregnant employee, whether in writing or oral, it has been expressly agreed that the employment is on probation, subsection (1) shall not prevent the termination by an employer of such contract for reasons other than pregnancy during the period of probation if the period does not exceed 12 weeks, or during the first 12 weeks of probation if the period of probation exceeds 12 weeks. (Replaced 73 of 1997 s. 7) (1B) An employer who terminates the continuous contract of employment of a pregnant employee shall be taken for the purposes of subsection (1)(a) or (b) to terminate the contract otherwise than in accordance with section 9- (a) unless the contrary is proved; or (b) subject to subsection (1C), unless the employer proves that- (i) he purported to terminate the contract in accordance with that section; and (ii) at the time of such termination, he reasonably believed that he had a ground to do so. (Added 7 of 2001 s. 5) (1C) Subsection (1B)(b) shall not apply in the case of civil proceedings. (Added 7 of 2001 s. 5) (1D) For the purposes of subsections (2)(b), (2A) and (2B), “wages” (工資) includes any sum paid by an employer in respect of- (a) a day of maternity leave, a rest day, a sickness day, a holiday or a day of annual leave taken by the employee; (b) a day of leave taken by the employee with the agreement of her employer; (c) a normal working day on which the employee is not provided with work; (d) a day of absence from work of the employee due to temporary incapacity for which compensation is payable under section 10 of the Employees’ Compensation Ordinance (Cap 282). (Added 7 of 2007 s. 7) (2) An employer who contravenes subsection (1)(a) or (b) shall be liable to pay to the female employee- (Amended 7 of 2001 s. 5) (a) the sum which would have been payable if the contract had been terminated by the employer under section 7 provided that she has not received any such payment under that section; (Amended 73 of 1997 s. 7) (b) a further sum equivalent to the monthly average of the wages earned by the employee during- (i) the period of 12 months immediately before the date of termination of the contract of employment; or (ii) if the employee has been employed by the employer for a period shorter than 12 months immediately before the date of termination of the contract, the shorter period; and (Replaced 7 of 2007 s. 7) (c) where the employee is or would have been entitled to maternity leave pay, maternity leave pay for 10 weeks. (Added 22 of 1981 s. 5) (2A) In calculating the monthly average of the wages earned by a female employee during the period of 12 months or the shorter period- (a) any period therein for which the employee was not paid her 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 her employer; (iii) her not being provided by her employer with work on any normal working day; or (iv) her 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 her for the period referred to in paragraph (a), are to be disregarded. (Added 7 of 2007 s. 7) (2B) For the avoidance of doubt, if the amount of the wages paid to a female employee in respect of a day specified in subsection (1D) is only a fraction of the amount earned by the employee on a normal working day, the wages and the day are to be disregarded in accordance with subsection (2A). (Added 7 of 2007 s. 7) (2C) Despite subsection (2)(b), if for any reason it is impracticable to calculate the monthly average of the wages earned by a female employee in the manner provided in that subsection, the amount may be calculated by reference to the wages earned by a person who was employed at the same work by the same employer during the period of 12 months immediately before the date of termination of the employee’s contract of employment, or, if there is no such person, by a person who was employed in the same trade or occupation and at the same work in the same district during the period of 12 months immediately before the date of termination of the employee’s contract of employment. (Added 7 of 2007 s. 7) (3) (Repealed 7 of 2007 s. 7) (4) Any employer who contravenes subsection (1)(a) or (b) shall be guilty of an offence and shall be liable on conviction to a fine at level 6. (Replaced 7 of 2001 s. 5) “wages” (工資) EMPLOYMENT ORDINANCE - SECT 15A Offences VerDate:30/06/1997 Due to technical constraints, section 15AA of this Ordinance is placed after section 15A in the BLIS system. The correct sequence of the sections should be "15AA, 15A". (1) Any employer who fails to- (a) grant maternity leave; (b) pay maternity leave pay in accordance with section 14; or (Amended 5 of 1995 s. 5) (c) pay sickness allowance under section 33(3C), shall be guilty of an offence and shall be liable on conviction to a fine at level 5. (Amended 24 of 1988 s. 2; 103 of 1995 s. 4) (2) Any employer who, without any reasonable excuse, fails to comply with- (a) the requirements under section 15AA(2); or (b) the determination made by the Commissioner under section 15AA(6), shall be guilty of an offence and shall be liable on conviction to a fine at level 5. (Replaced 73 of 1997 s. 9) (Added 22 of 1981 s. 6) EMPLOYMENT ORDINANCE - SECT 15AA Prohibition of assignment of heavy, hazardous or harmful work VerDate:13/07/2007 Due to technical constraints, section 15AA of this Ordinance is placed after section 15A in the BLIS system. The correct sequence of the sections should be "15AA, 15A". (1) A pregnant employee may, on producing a medical certificate with an opinion as to her unfitness to handle heavy materials, or to work in places where gas injurious to pregnancy is generated, or to do other work injurious to pregnancy, request her employer to refrain from giving her such work during her pregnancy period. (2) On receipt of a request under subsection (1), the employer may not allocate to the employee the work specified in the medical certificate and, if the employee is already performing such work, the employer shall remove her from such work as soon as practicable but in any case not later than 14 days after the date of the receipt of the request under subsection (1) notwithstanding that- (a) the result of the medical examination referred to in subsection (3); or (b) the determination of the Commissioner in subsection (6), may be pending. (3) Where an employee has produced a medical certificate for the purposes of subsection (1), the employer may arrange for the employee to attend another medical examination, at the employer's expense, to obtain a second opinion as to the employee's fitness to undertake the work at issue. (Replaced 16 of 2006 s. 5) (3A) A medical examination referred to in subsection (3) shall be conducted by a registered medical practitioner or registered Chinese medicine practitioner named by the employer, regardless of whether the medical certificate produced by the employee was issued by a registered medical practitioner or registered Chinese medicine practitioner. (Added 16 of 2006 s. 5) (4) The employer shall give the employee at least 48 hours' notice of the examination under subsection (3) which is to be carried out within a period of 14 days after the date of the receipt of the employee's request made under subsection (1). (5) If the second medical opinion provides that the employee is fit to do the specified work referred to in subsection (1) or if the employee refuses to attend the medical examination as arranged by the employer under subsection (3), the employer may refer the employee's request made under subsection (1) to the Commissioner; the Commissioner shall take appropriate action, including seeking further medical advice, to assist him in bringing about a determination. (6) When the Commissioner receives the employer's reference under subsection (5), he may make a determination to- (a) uphold the employee's request; (b) rule that the employee's request is not supported; (c) make such other rulings as he considers reasonable. (7) The employer and the employee concerned in the reference shall comply with any determination made by the Commissioner. (8) Despite any change in the earnings of the employee as a result of her transfer from heavy, hazardous or harmful work in accordance with this section, payment for maternity leave under section 14(3A) or payment for termination of employment under section 15(2)(a), (b) or (c) is to be calculated on the basis of the daily average or monthly average (as appropriate) of the wages earned by the employee during- (a) the period of 12 months immediately before her transfer from heavy, hazardous or harmful work in accordance with this section; or (b) if the employee has been employed by the employer concerned for a period shorter than 12 months immediately before her transfer from heavy, hazardous or harmful work in accordance with this section, the shorter period, and those sections are to be construed accordingly. (Replaced 7 of 2007 s. 8) (9) Where- (a) an employee is transferred from heavy, hazardous or harmful work in accordance with this section; and (b) section 7(1D), 14(3D) or 15(2C) is applicable in calculating the maternity leave pay or any payment for termination of employment under section 15 payable to the employee, for the purpose of the calculation, the reference in section 7(1D), 14(3D) or 15(2C) to a person who was employed at the same work is to be construed as a reference to a person who was employed at the work performed by the employee immediately before her transfer. (Added 7 of 2007 s. 8) (Added 73 of 1997 s. 8) EMPLOYMENT ORDINANCE - SECT 15B Records VerDate:30/06/1997 Every employer who employs females shall maintain, in a form specified by the Commissioner, a record of maternity leave taken by and maternity leave pay paid to his female employees. (Added 22 of 1981 s. 6) EMPLOYMENT ORDINANCE - SECT 15C Restriction on pay in lieu of maternity leave VerDate:30/06/1997 Save as provided in section 15(2), no payment of maternity leave pay or other sum may be made in lieu of the grant of maternity leave. (Added 22 of 1981 s. 6) (Part III added 5 of 1970 s. 7) EMPLOYMENT ORDINANCE - SECT 16 (Repealed 10 of 1980 s. 3) VerDate:30/06/1997 PART IV REST DAYS (Repealed 10 of 1980 s. 3) EMPLOYMENT ORDINANCE - SECT 17 Grant of rest days VerDate:30/06/1997 (1) Subject to the provisions of this Part, every employee who has been employed by the same employer under a continuous contract shall be granted not less than 1 rest day in every period of 7 days. (Amended 71 of 1976 s. 3) (2) Rest days shall be in addition to any statutory holiday, or alternative holiday or substituted holiday, to which an employee is entitled under section 39. (Replaced 39 of 1973 s. 3) EMPLOYMENT ORDINANCE - SECT 18 Appointment of rest days VerDate:30/06/1997 (1) Rest days shall be appointed by an employer and he may appoint different rest days for different employees. (Amended 71 of 1976 s. 4) (2) Subject to subsection (4), every employer shall, before the commencement of every month, inform each employee orally or in writing of his rest days in that month. (3) The provisions of subsection (2) shall be deemed to be complied with if an employer exhibits in a conspicuous place in the place of employment and for so long as it applies a roster showing the days appointed to be rest days for each employee during the month. (4) Subsection (2) shall not apply where rest days are appointed on fixed days in each period of 7 days on a regular basis. (Amended 71 of 1976 s. 4) (5) An employer may, with the consent of his employee, substitute for any rest day appointed under this section some other rest day- (a) within the same month and before the rest day so appointed; or (b) within the period of 30 days next following the rest day so appointed. EMPLOYMENT ORDINANCE - SECT 19 Compulsory work on rest days VerDate:30/06/1997 (1) Subject to subsection (2), no employer shall require an employee to work on any of his rest days. (2) An employer may require an employee to work on his rest day if it is necessary to do so by reason of a breakdown of machinery or plant or other unforeseen emergency of any nature. (3) An employer shall substitute for any rest day on which an employee is required to work under subsection (2) some other rest day within the period of 30 days next following, notice of which shall be given to the employee within 48 hours after the employee is so required to work. EMPLOYMENT ORDINANCE - SECT 20 Voluntary work on rest days VerDate:30/06/1997 (1) An employee may, at his own request and if the employer agrees, work for his employer on a rest day. (2) An employee may, at the request of his employer, work for his employer on a rest day. EMPLOYMENT ORDINANCE - SECT 21 Void conditions VerDate:30/06/1997 Any condition in a contract of employment which makes the payment of any annual bonus, or any end of year payment or any proportion thereof, subject to working on rest days granted under this Part shall be void. (Amended 48 of 1984 s. 10) (Part IV added 23 of 1970 s. 3) EMPLOYMENT ORDINANCE - SECT 21A Application of Part IVA VerDate:30/06/1997 PART IVA PROTECTION AGAINST ANTI-UNION DISCRIMINATION Section 21C shall apply to every person to whom an offer of employment is made or is about to be made or who otherwise is a prospective employee. (Replaced 41 of 1990 s. 7) EMPLOYMENT ORDINANCE - SECT 21B Rights of employees in respect of trade union membership and activities VerDate:31/10/1997 (1) Every employee shall as between himself and his employer have the following rights- (a) the right to be or to become a member or an officer of a trade union registered under the Trade Unions Ordinance (Cap 332); (b) where he is a member or an officer of any such trade union, the right, at any appropriate time, to take part in the activities of the trade union; (c) the right to associate with other persons for the purpose of forming or applying for the registration of a trade union in accordance with the provisions of the Trade Unions Ordinance (Cap 332); (Amended 101 of 1997 s. 26) *(d) (Repealed 135 of 1997 s. 14) (2) Any employer, or any person acting on behalf of an employer, who- (a) prevents or deters, or does any act calculated to prevent or deter, an employee from exercising any of the rights conferred on him by subsection (1); or (b) terminates the contract of employment of, penalizes, or otherwise discriminates against, an employee by reason of his exercising any such right, shall be guilty of an offence and shall be liable on conviction to a fine at level 6. (Amended 24 of 1988 s. 2; 103 of 1995 s. 5) (3) In this section- "appropriate time" (適當時間) means, in relation to an employee taking part in any activities of a trade union, time which either- (a) is outside his working hours; or (b) is a time within his working hours at which, in accordance with arrangements agreed with or consent given by or on behalf of his employer, it is permissible for him to take part in those activities; "working hours" (工作時間) means, in relation to an employee, any time when, in accordance with his contract with his employer, he is required to be at work. [cf. 1971 c. 72 s. 5(1), (2) & (5) U.K.] ___________________________________________________________________________ __ Note: * This paragraph was added by 101 of 1997. As to the suspension of operation of 101 of 1997, please see s. 4(1) and (2) of Cap 538. On 31 October 1997, that s. 4(1) and (2), to the extent that it was in effect immediately before 31 October 1997, ceased to have effect. Please see s. 14(2) of 135 of 1997. "appropriate time" (適當時間) "working hours" (工作時間) EMPLOYMENT ORDINANCE - SECT 21C Offer of employment conditional on offeree not being member of trade union VerDate:30/06/1997 Any person who, acting on his own or another's behalf, in the engagement of persons for employment includes in an offer of employment to any person a condition or requirement that the person to whom the offer is made shall undertake- (a) if he is a member or officer of such a trade union, that he will relinquish his membership thereof or office therein; (b) not to become a member of, or officer in, such a trade union; or (c) not to associate with other persons for the purpose of forming or applying for the registration of a trade union in accordance with the provisions of the Trade Unions Ordinance (Cap 332), shall be guilty of an offence and shall be liable on conviction to a fine at level 6. (Amended 24 of 1988 s. 2; 103 of 1995 s. 6) EMPLOYMENT ORDINANCE - SECT 21D *(Repealed 135 of 1997 s. 3) VerDate:31/10/1997 * Ss. 21D to 21J were added by 98 of 1997. As to the suspension of operation of 98 of 1997, please see s. 5(1) and (2) of Cap 538. On 31 October 1997, that s. 5(1) and (2), to the extent that it was in effect immediately before 31 October 1997, ceased to have effect (please see s. 4(2) of 135 of 1997). As to the transitional provisions in relation to s. 3 of 135 of 1997, please see s. 4(1)(b) and Part I of Schedule 2 of 135 of 1997. EMPLOYMENT ORDINANCE - SECT 21E *(Repealed 135 of 1997 s. 3) VerDate:31/10/1997 * Ss. 21D to 21J were added by 98 of 1997. As to the suspension of operation of 98 of 1997, please see s. 5(1) and (2) of Cap 538. On 31 October 1997, that s. 5(1) and (2), to the extent that it was in effect immediately before 31 October 1997, ceased to have effect (please see s. 4(2) of 135 of 1997). As to the transitional provisions in relation to s. 3 of 135 of 1997, please see s. 4(1)(b) and Part I of Schedule 2 of 135 of 1997. EMPLOYMENT ORDINANCE - SECT 21F *(Repealed 135 of 1997 s. 3) VerDate:31/10/1997 * Ss. 21D to 21J were added by 98 of 1997. As to the suspension of operation of 98 of 1997, please see s. 5(1) and (2) of Cap 538. On 31 October 1997, that s. 5(1) and (2), to the extent that it was in effect immediately before 31 October 1997, ceased to have effect (please see s. 4(2) of 135 of 1997). As to the transitional provisions in relation to s. 3 of 135 of 1997, please see s. 4(1)(b) and Part I of Schedule 2 of 135 of 1997. EMPLOYMENT ORDINANCE - SECT 21G *(Repealed 135 of 1997 s. 3) VerDate:31/10/1997 * Ss. 21D to 21J were added by 98 of 1997. As to the suspension of operation of 98 of 1997, please see s. 5(1) and (2) of Cap 538. On 31 October 1997, that s. 5(1) and (2), to the extent that it was in effect immediately before 31 October 1997, ceased to have effect (please see s. 4(2) of 135 of 1997). As to the transitional provisions in relation to s. 3 of 135 of 1997, please see s. 4(1)(b) and Part I of Schedule 2 of 135 of 1997. EMPLOYMENT ORDINANCE - SECT 21H *(Repealed 135 of 1997 s. 3) VerDate:31/10/1997 * Ss. 21D to 21J were added by 98 of 1997. As to the suspension of operation of 98 of 1997, please see s. 5(1) and (2) of Cap 538. On 31 October 1997, that s. 5(1) and (2), to the extent that it was in effect immediately before 31 October 1997, ceased to have effect (please see s. 4(2) of 135 of 1997). As to the transitional provisions in relation to s. 3 of 135 of 1997, please see s. 4(1)(b) and Part I of Schedule 2 of 135 of 1997. EMPLOYMENT ORDINANCE - SECT 21I *(Repealed 135 of 1997 s. 3) VerDate:31/10/1997 * Ss. 21D to 21J were added by 98 of 1997. As to the suspension of operation of 98 of 1997, please see s. 5(1) and (2) of Cap 538. On 31 October 1997, that s. 5(1) and (2), to the extent that it was in effect immediately before 31 October 1997, ceased to have effect (please see s. 4(2) of 135 of 1997). As to the transitional provisions in relation to s. 3 of 135 of 1997, please see s. 4(1)(b) and Part I of Schedule 2 of 135 of 1997. EMPLOYMENT ORDINANCE - SECT 21J *(Repealed 135 of 1997 s. 3) VerDate:31/10/1997 * Ss. 21D to 21J were added by 98 of 1997. As to the suspension of operation of 98 of 1997, please see s. 5(1) and (2) of Cap 538. On 31 October 1997, that s. 5(1) and (2), to the extent that it was in effect immediately before 31 October 1997, ceased to have effect (please see s. 4(2) of 135 of 1997). As to the transitional provisions in relation to s. 3 of 135 of 1997, please see s. 4(1)(b) and Part I of Schedule 2 of 135 of 1997. (Part IVA added 51 of 1974 s. 3) EMPLOYMENT ORDINANCE - SECT 22 Wage period VerDate:30/06/1997 PART V PAYMENT OF WAGES The wage period in respect of which wages are payable under a contract of employment shall, until the contrary is proved, be deemed to be 1 month. EMPLOYMENT ORDINANCE - SECT 23 Time of payment of wages VerDate:30/06/1997 Wages shall become due on the expiry of the last day of the wage period and shall be paid as soon as is practicable but in any case not later than 7 days thereafter. EMPLOYMENT ORDINANCE - SECT 24 Payment on completion VerDate:30/06/1997 Wages of an employee on completion of his contract of employment and any other sum payable in respect of his contract shall be due to him on the day of the completion of the contract and shall be paid as soon as is practicable but in any case not later than 7 days thereafter. EMPLOYMENT ORDINANCE - SECT 25 Payment on termination VerDate:12/04/2001 (1) Subject to section 31O, where a contract of employment is terminated any sum due to the employee shall be paid to him as soon as is practicable and in any case not later than 7 days after the day of termination. (Amended 44 of 1971 s. 4; 67 of 1974 s. 4) (2) The sum referred to in subsection (1) shall be- (a) the equivalent of the amount earned by the employee for work done over the period commencing on the expiry of his wage period next preceding the time of termination up to that time; (b) the sum (if any) payable under sections 7, 15(2) and 33(4BA); (Amended 57 of 1983 s. 4; 76 of 1985 s. 3; 103 of 1995 s. 7; 7 of 2001 s. 6) (ba) any long service payment due to the employee; and (Added 76 of 1985 s. 3. Amended L.N. 34 of 1990) (c) any other sum due to the employee in respect of his contract of employment. (3) In addition to any deduction which may be made under section 32, and subject to any order made by a court, an employer may deduct from any sum payable under subsection (1) to an employee who terminates his employment otherwise than under section 6, 7 or 10 such sum as the employee would have been liable to pay if he had terminated his employment under section 7. (Replaced 44 of 1971 s. 4. Amended 14 of 1975 s. 3; 48 of 1984 s. 12) EMPLOYMENT ORDINANCE - SECT 25A Interest on late payment of wages VerDate:30/06/1997 (1) Subject to subsection (3), if any wages or any sum referred to in section 25(2)(a) are not paid within 7 days from the day on which they become due under sections 23, 24 and 25, the employer shall pay interest at the rate specified in subsection (2) on the outstanding amount of wages or sum from the date on which such wages or sum become due up to the date of actual payment. (2) The rate of interest specified for the purpose of subsection (1) shall be the rate fixed by the Chief Justice by notice in the Gazette under section 50 of the District Court Ordinance (Cap 336). (3) No interest shall be payable in respect of any period before the commencement* of this section. (Added 74 of 1997 s. 9) ___________________________________________________________________________ __ Note: * Commencement date: 27 June 1997. EMPLOYMENT ORDINANCE - SECT 26 Manner and place of payment of wages VerDate:30/06/1997 (1) Subject to this Ordinance, wages shall be paid on a working day directly to an employee in legal tender at his place of employment or at any office or other place customarily used by the employer for the purpose of payment of wages or at any other place mutually agreed. (2) With the consent of an employee wages may be paid- (a) by cheque, money order or postal order; (b) into an account in his name with any bank within the meaning of section 2 of the Banking Ordinance (Cap 155); or (Amended 49 of 1995 s. 53) (c) to his duly appointed agent. EMPLOYMENT ORDINANCE - SECT 27 Payment not to be made in certain places VerDate:01/09/2006 Wages, or any sum due to an employee in respect of his contract of employment on the completion or termination thereof, shall not be paid- (a) in any place of amusement; (b) in any place where cash-sweeps, fixed odds betting or pari-mutuel betting is organized or conducted with the permission or authorization under the Betting Duty Ordinance (Cap 108); (Amended 17 of 2006 s. 23) (c) in any place where intoxicating liquor or any dangerous drug is sold; or (d) in any shop or store for the retail sale of merchandise, except where the employee is employed in such place, shop or store. EMPLOYMENT ORDINANCE - SECT 28 Remuneration other than wages VerDate:01/09/2006 (1) A contract of employment may provide for giving to an employee food, accommodation or other allowances or privileges in addition to wages as remuneration for his services. (2) No employer shall give to an employee any intoxicating liquor, dangerous drug, or any ticket or other substitute for ticket for any cash-sweep, fixed odds betting or pari-mutuel betting organized or conducted with the permission or authorization under the Betting Duty Ordinance (Cap 108) as remuneration for his services. (Amended 17 of 2006 s. 23) EMPLOYMENT ORDINANCE - SECT 29 Prohibition of agreements as to manner of spending VerDate:30/06/1997 No employer shall in any contract of employment or agreement in consideration of a contract of employment make any provision as to the place at which, the manner in which, or the person with whom, wages paid to an employee are to be expended. EMPLOYMENT ORDINANCE - SECT 30 Provision of shops, etc. by employers for sale of commodities to employees VerDate:30/06/1997 An employer may establish shops, stores or places for the sale of commodities to his employees, but no employer shall bind any employee by contract, agreement or other obligation, written or oral, express or implied, to make use of any such shop, store or place for the purchase of commodities. EMPLOYMENT ORDINANCE - SECT 31 Employer not to enter into contract of employment without reasonable belief that he can pay wages VerDate:30/06/1997 (1) No person shall enter into, renew or continue a contract of employment as an employer unless he believes upon reasonable grounds that he will be able to pay all wages due under the contract of employment as they become due. (2) An employer shall, if he ceases to believe upon reasonable grounds that he will be able to pay all the wages due by him under a contract of employment as they become due, forthwith take all necessary steps to terminate the contract in accordance with its terms. (Added 71 of 1970 s. 3) EMPLOYMENT ORDINANCE - SECT 31A (Repealed 76 of 1985 s. 4) VerDate:30/06/1997 PART VA SEVERANCE PAYMENTS (Repealed 76 of 1985 s. 4) EMPLOYMENT ORDINANCE - SECT 31B General provisions as to right to severance payment VerDate:30/06/1997 (1) Where an employee who has been employed under a continuous contract for a period of not less than 24 months ending with the relevant date- (Amended 76 of 1985 s. 5) (a) is dismissed by his employer by reason of redundancy; or (b) is laid off within the meaning of section 31E, the employer shall, subject to this Part and Part VC, be liable to pay to the employee a severance payment calculated in accordance with section 31G. (Amended 52 of 1988 s. 5) (2) For the purposes of this Part an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to the fact that- (a) his employer has ceased, or intends to cease, to carry on the business- (i) for the purposes of which the employee was employed by him; or (ii) in the place where the employee was so employed; or (b) the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where the employee was so employed, have ceased or diminished or are expected to cease or diminish. (Replaced 62 of 1992 s. 4) (3) For the purposes of the application of this Part to an employee who is employed as a domestic servant in, or in connection with, a private household, this Part (except section 31J) shall apply as if the household were a business and the maintenance of the household were the carrying on of that business by the employer. [cf. 1965 c. 62 ss. 1 & 19(1) U.K.] EMPLOYMENT ORDINANCE - SECT 31C General exclusions from right to severance payment by reason of dismissal VerDate:07/07/2000 (1) An employee shall not be entitled to a severance payment by reason of dismissal where his employer, being so entitled by reason of the employee's conduct, terminates his contract of employment without notice or payment in lieu in accordance with section 9. (Amended 51 of 2000 s. 3) (2) An employee shall not be entitled to a severance payment by reason of dismissal if, not less than 7 days before the relevant date, the employer has offered to renew his contract of employment, or to re-engage him under a new contract, so that- (a) the provisions of the contract as renewed, or of the new contract, as the case may be, as to the capacity and place in which he would be employed, and as to the other terms and conditions of his employment, would not differ from the corresponding provisions of the contract as in force immediately before his dismissal; and (b) the renewal or re-engagement would take effect on or before the relevant date, and the employee has unreasonably refused that offer. (3) An employee shall not be entitled to a severance payment by reason of dismissal if, not less than 7 days before the relevant date, the employer has made to him an offer in writing to renew his contract of employment, or to re-engage him under a new contract, so that in accordance with the particulars specified in the offer the provisions of the contract as renewed, or of the new contract, as the case may be, as to the capacity and place in which he would be employed, and as to the other terms and conditions of his employment, would differ (wholly or in part) from the corresponding provisions of the contract as in force immediately before his dismissal, but- (a) the offer constitutes an offer of suitable employment in relation to the employee; (b) the offer constitutes an offer of employment no less favourable to the employee than hitherto; and (c) the renewal or re-engagement would take effect on or before the relevant date, and the employee has unreasonably refused that offer. (4) Where the relevant date falls on a rest day or holiday, the references in subsection (2)(b) and subsection (3)(c) to the relevant date shall be construed as references to the next day after that rest day or holiday. (Amended 75 of 1997 s. 2) (5) An employee shall not be entitled to a severance payment by reason of dismissal where, having been given notice of the termination of his contract of employment by his employer in accordance with section 6, he leaves the service of his employer before the expiration of that notice unless he so leaves- (a) with the prior consent of the employer; or (b) after having made a payment in lieu to the employer in accordance with section 7. (Replaced 75 of 1997 s. 2) [cf. 1965 c. 62 s. 2 U.K.] EMPLOYMENT ORDINANCE - SECT 31D Dismissal by employer VerDate:30/06/1997 (1) For the purposes of and subject to this Part, an employee shall be taken to be dismissed by his employer if, but only if- (a) the contract under which he is employed is terminated by the employer with or without notice or payment in lieu thereof other than in accordance with section 9; (b) where under that contract he is employed for a fixed term, that term expires without being renewed under the same contract; or (c) the employee terminates that contract with or without notice or payment in lieu, in circumstances such that he is entitled to terminate it without notice or payment in lieu in accordance with section 10 by reason of the employer's conduct. (Replaced 62 of 1992 s. 5) (2) An employee shall not be taken for the purposes of this Part to be dismissed by his employer if- (a) his contract of employment is renewed, or he is re-engaged by the same employer under a new contract of employment; and (b) the renewal or re-engagement takes effect immediately on the ending of his employment under the previous contract. (3) For the purposes of the application of subsection (2) to a contract under which the employment ends on a rest day or holiday, the renewal or re-engagement shall be treated as taking effect immediately on the ending of the employment under the previous contract if it takes effect on or before the next day after that rest day or holiday. [cf. 1965 c. 62 s. 3 U.K.] EMPLOYMENT ORDINANCE - SECT 31E Lay-off VerDate:30/06/1997 (1) Where an employee is employed under a contract on such terms and conditions that his remuneration thereunder depends on his being provided by the employer with work of the kind he is employed to do, he shall for the purposes of section 31B(1) be taken to be laid off where the total number of days on each of which such work is not provided for him by the employer exceeds- (a) half of the total number of normal working days in any period of 4 consecutive weeks; or (b) one-third of the total number of normal working days in any period of 26 consecutive weeks, and he is not paid a sum equivalent to the wages which he would have earned if work had been provided on the days on which no work was provided. (Amended 41 of 1990 s. 8) (1A) Notwithstanding subsection (1), any period during which an employee is not provided with work because of a lock-out by his employer, or as a result of a rest day, a statutory holiday or a day of annual leave, shall not be taken into account as normal working days in determining whether an employee has been laid off. (Added 41 of 1990 s. 8. Amended 61 of 1993 s. 4) (2) The continuity of a contract of employment of an employee shall not be treated as broken by any lay-off as a result of which no severance payment has been made. (3) For the purposes of this Part the "relevant date" (有關日期) in respect of the right of an employee to a severance payment arising by reason of lay-off means any day on which the period of 4 consecutive weeks or 26 consecutive weeks, as the case may be, referred to in subsection (1) has expired. (Amended 41 of 1990 s. 8) [cf. 1965 c. 62 s. 5(1) U.K.] "relevant date" (有關日期) EMPLOYMENT ORDINANCE - SECT 31F Excluded classes of employees VerDate:30/06/1997 Section 31B shall not apply- (a) where the employer is the husband or wife of the employee; (b) to any outworker; (c) (Repealed 76 of 1985 s. 6) (d) to any person, employed by a government other than the Hong Kong Government, who is a subject or citizen of the state under whose government he is employed; or (e) without prejudice to paragraph (a), to any person in respect of employment as a domestic servant in, or in connection with, a private household, where the employer is the father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother or half-sister of the employee. [cf. 1965 c. 62 s. 16 U.K.] EMPLOYMENT ORDINANCE - SECT 31G Amount of severance payment VerDate:30/06/1997 (1) Subject to this Part, the amount of a severance payment to which an employee is entitled in any case shall be calculated by allowing- (a) in the case of a monthly rated employee, two-thirds of this last full month's wages, or two-thirds of $22500, whichever is less; and (b) in any other case, 18 days' wages based on any 18 days chosen by the employee and occurring during his last 30 normal working days, or two-thirds of $22500, whichever is less, (Amended L.N. 264 of 1995) for every year (and pro rata as respects an incomplete year) of employment under a continuous contract by his employer subject in all cases to a maximum payment not exceeding, where the relevant date occurs in a period specified in column 1 of Table A in the Seventh Schedule, the amount specified in column 2 of that table opposite to the period. (Amended 5 of 1995 s. 6) (1A) Notwithstanding subsection (1), where- (a) the relevant date occurs in a period specified in column 1 of Table B in the Seventh Schedule; and (b) the employee has been employed under a continuous contract by his employer for a period ("employment period") which immediately precedes the relevant date and is longer than the period specified in column 2 of that table opposite to the period in which the relevant date occurs, that part of the employment period exceeding the period so specified in column 2 of that table shall be reduced by one half for the purpose of calculating his entitlement under subsection (1). (Added 5 of 1995 s. 6) (2) Notwithstanding subsection (1), the employee may elect to have his wages averaged over the period of 12 months immediately preceding the relevant date, but where he so elects, then- (a) in the case of a monthly rated employee, the monthly average shall not exceed $22500; and (b) in any other case, the total wages for the period of 12 months shall, for the purpose of calculating the daily average, not exceed 12 times $22500. (Amended L.N. 264 of 1995) (3) For the purposes of this section, in the case of an employee who was employed under a continuous contract otherwise than by way of manual labour and whose average monthly wages during the period of 12 months immediately preceding the date of commencement of the Employment (Amendment) Ordinance 1990 (41 of 1990) exceed $15000, a reference to the period of employment under a continuous contract shall not include a reference to any such employment occurring more than- (a) 3 years prior to 1 January 1990, where the relevant date occurs in 1990; (b) 4 years prior to 1 January 1990, where the relevant date occurs in 1991; (c) 5 years prior to 1 January 1990, where the relevant date occurs in 1992; (d) 6 years prior to 1 January 1990, where the relevant date occurs in 1993; (e) 7 years prior to 1 January 1990, where the relevant date occurs in 1994; (f) 8 years prior to 1 January 1990, where the relevant date occurs in 1995; (g) 9 years prior to 1 January 1990, where the relevant date occurs in 1996; (h) 10 years prior to 1 January 1990, where the relevant date occurs in 1997 or any year thereafter. (Replaced 41 of 1990 s. 9) EMPLOYMENT ORDINANCE - SECT 31H (Repealed 51 of 2000 s. 4) VerDate:07/07/2000 EMPLOYMENT ORDINANCE - SECT 31I Severance payment to be reduced by amount of gratuities and benefits in certain cases VerDate:25/05/2001 For transitional and savings provisions relating to the amendment of this section made by the Employment (Amendment) (No. 2) Ordinance 2001 (18 of 2001), see section 5 of that Ordinance. If an employee becomes entitled to payment of a severance payment under this Part and- (a) because of the operation of the employee's contract of employment, one or more gratuities based on length of service or one or more relevant occupational retirement scheme benefits have been paid to the employee; or (b) a relevant mandatory provident fund scheme benefit is being held in a mandatory provident fund scheme in respect of the employee, or has been paid to or in respect of the employee, the severance payment is to be reduced by the total amount of all of the gratuities and benefits to or in respect of the employee to the extent that they relate to the employee's years of service for which the severance payment is payable. (Replaced 4 of 1998 s. 5. Amended 18 of 2001 s. 2) EMPLOYMENT ORDINANCE - SECT 31IA Gratuity or benefit to be reduced by amount of severance payment in certain cases VerDate:01/12/2000 (1) If- (a) because of the operation of the employee's contract of employment, an employee has become entitled to payment of a gratuity based on length of service, or to payment of a relevant occupational retirement scheme benefit; or (b) a relevant mandatory provident fund scheme benefit is being held in a mandatory provident fund scheme in respect of the employee, and the employee has been paid a severance payment under this Part, the gratuity or benefit is, to the extent that it is attributable to the same years of service as those for which the severance payment is payable, to be reduced by the whole amount of the severance payment. (2) Subsection (1) has effect even though the years of service for which the severance payment was made exceed those to which the gratuity or benefit is attributable. (3) Section 70A of the Occupational Retirement Schemes Ordinance (Cap 426) and section 12A of the Mandatory Provident Fund Schemes Ordinance (Cap 485) have effect in relation to this section. (Replaced 4 of 1998 s. 5) EMPLOYMENT ORDINANCE - SECT 31J Change of ownership of business VerDate:30/06/1997 (1) This section shall have effect where- (a) a change occurs (whether by virtue of a sale or other disposition or by operation of law) in the ownership of a business for the purposes of which a person is employed, or of a part of such a business; and (b) in connection with that change the person by whom the employee is employed immediately before the change occurs (in this section referred to as "the previous owner") terminates the employee's contract in accordance with section 6 or 7. (2) If, by agreement with the employee, the person who immediately after the change occurs is the owner of the business or of the part of the business in question, as the case may be (in this section referred to as "the new owner") renews the employee's contract of employment (with the substitution of the new owner for the previous owner) or re-engages him under a new contract of employment, section 31D(2) shall have effect as if the renewal or re-engagement had been a renewal or re-engagement by the previous owner (without any substitution of the new owner for the previous owner). (3) If the new owner offers to renew the employee's contract of employment (with the substitution of the new owner for the previous owner) or to re-engage him under a new contract of employment, but the employee refuses the offer, section 31C(2) or (3) (as the case may be) shall have effect, subject to subsection (4), in relation to that offer and refusal as it would have had effect in relation to the like offer made by the previous owner and a refusal of that offer by the employee. (4) For the purposes of the operation, in accordance with subsection (3), of section 31C(2) or (3) in relation to an offer made by the new owner- (a) the offer shall not be treated as one whereby the provisions of the contract as renewed, or of the new contract, as the case may be, would differ from the corresponding provisions of the contract as in force immediately before the dismissal by reason only that the new owner would be substituted for the previous owner as the employer; and (b) no account shall be taken of that substitution in determining whether the refusal of the offer was unreasonable. (5) This section shall have effect (subject to the necessary modifications) in relation to a case where- (a) the person by whom a business, or part of a business, is owned immediately before a change is one of the persons by whom (whether as partners, trustees or otherwise) it is owned immediately after the change; or (b) the persons by whom a business, or part of a business, is owned immediately before a change (whether as partners, trustees or otherwise) include the person or one or more of the persons by whom it is owned immediately after the change, as this section has effect where the previous owner and the new owner are wholly different persons. (6) Nothing in this section shall be construed as requiring any variation of a contract of employment by agreement between the parties to be treated as constituting a termination of the contract. [cf. 1965 c. 62 s. 13 U.K.] EMPLOYMENT ORDINANCE - SECT 31K Associated companies VerDate:30/06/1997 (1) Where the employer is a company, any reference in this Part to re-engagement by the employer shall be construed as a reference to re-engagement by that company or by any associated company, and any reference in this Part to an offer made by the employer shall be construed as including a reference to an offer made by an associated company. (2) Subsection (1) shall not affect the operation of section 31J in a case where the previous owner and the new owner (as defined by that section) are associated companies; and where that section applies, subsection (1) shall not apply. (3) Where an employee is dismissed by his employer, and the employer is a company (in this subsection referred to as "the employing company") which has one or more associated companies, then if- (a) none of the conditions specified in section 31B(2) is fulfilled; (b) one or other of those conditions would be fulfilled if the business of the employing company and the business of the associated company (or, if more than one, each of the associated companies) were treated as together constituting one business, that condition shall for the purposes of this Part be taken to be fulfilled in relation to the dismissal of the employee. (4) Where an employee of a company is taken into the employment of another company which, at the time when he is taken into its employment, is an associated company of the first-mentioned company, his period of employment at that time shall count as a period of employment with the associated company, and the change of employer shall not break the continuity of the period of employment. (5) For the purposes of this section 2 companies shall be taken to be associated companies if one is a subsidiary of the other, or both are subsidiaries of a third company, and "associated company" (相聯公司) shall be construed accordingly. (6) In this section "company" (公司) and "subsidiary" (附屬公司) have the meanings respectively assigned thereto by section 2 of the Companies Ordinance (Cap 32). (Amended 76 of 1985 s. 7) [cf. 1965 c. 62 s. 48 U.K.] "associated company" (相聯公司) "company" (公司) and "subsidiary" (附屬公司) EMPLOYMENT ORDINANCE - SECT 31L Implied or constructive termination of contract VerDate:30/06/1997 (1) Where in accordance with any enactment or rule of law- (a) any act on the part of the employer; or (b) any event affecting an employer (including, in the case of an individual, his death), operates so as to terminate a contract under which an employee is employed by him, that act or event shall for the purposes of this Part be treated as a termination of the contract by the employer, if apart from this subsection it would not constitute a termination of the contract by him. (2) Where subsection (1) applies, and the employee's contract of employment is not renewed, and he is not re-engaged under a new contract, as mentioned in section 31D(2), he shall for the purposes of this Part be taken to be dismissed by reason of redundancy if the circumstances in which the contract is not renewed and he is not re-engaged as mentioned in section 31D(2), are wholly or mainly attributable to one or other of the facts specified in section 31B(2). (3) For the purposes of subsection (2), section 31B(2)(a), in so far as it relates to the employer ceasing or intending to cease to carry on the business, shall be construed as if the reference to the employer included a reference to any person to whom, in consequence of the act or event in question, power to dispose of the business has passed. (4) In this section any reference to section 31D(2) includes a reference to section 31D(2) as applied by section 31J(2). [cf. 1965 c. 62 s. 22 U.K.] EMPLOYMENT ORDINANCE - SECT 31M Death of employer or of employee VerDate:30/06/1997 Part I of the Third Schedule shall have effect in relation to the death of an employer; and Part II of that Schedule shall have effect in relation to the death of an employee. [cf. 1965 c. 62 s. 23 U.K.] EMPLOYMENT ORDINANCE - SECT 31N Claims for severance payments VerDate:30/06/1997 Notwithstanding anything in this Part, an employee shall not be entitled to a severance payment unless, before the end of the period of 3 months beginning with the relevant date, or within such extended period as the Commissioner may agree- (Amended 19 of 1984 s. 3) (a) the payment has been agreed and paid; (b) the employee has made a claim for payment by notice in writing given to the employer; or (c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been made the subject of a claim filed with- (i) the Registrar of the Minor Employment Claims Adjudication Board in accordance with Part IV of the Minor Employment Claims Adjudication Board Ordinance (Cap 453); or (ii) the Registrar of the Labour Tribunal in accordance with Part IV of the Labour Tribunal Ordinance (Cap 25). (Amended 61 of 1994 s. 50) [cf. 1965 c. 62 s. 21 U.K.] EMPLOYMENT ORDINANCE - SECT 31O Making of severance payment VerDate:30/06/1997 (1) Where an employee is entitled to a severance payment under this Part, his employer shall make the severance payment to him not later than 2 months from the receipt of a notice in accordance with paragraph (b) of section 31N unless either the employer or the employee has, before the expiration of that period, made the severance payment the subject of a claim filed with- (a) the Registrar of the Minor Employment Claims Adjudication Board in accordance with Part IV of the Minor Employment Claims Adjudication Board Ordinance (Cap 453); or (b) the Registrar of the Labour Tribunal in accordance with Part IV of the Labour Tribunal Ordinance (Cap 25). (Amended 61 of 1994 s. 51) (1A) Where the Minor Employment Claims Adjudication Board or Labour Tribunal has ordered that any sum in respect of severance payment is payable by an employer, it shall order the time within which such sum shall be payable, provided that if it has made no order as to the time within which the sum shall be payable, the sum shall be paid within 14 days from the date of the order of payment. (Added 62 of 1992 s. 8. Amended 61 of 1994 s. 51) (2) A severance payment shall be made in legal tender except that, where the employee so consents, payment may be made- (a) by cheque, money order or postal order; (b) into an account in his name with any bank within the meaning of section 2 of the Banking Ordinance (Cap 155); or (Amended 49 of 1995 s. 53) (c) to his duly appointed agent. (3) (a) An employer who without reasonable excuse fails to comply with subsection (1) or (1A) shall be guilty of an offence and shall be liable on conviction to a fine at level 5. (b) An employer who without reasonable excuse fails to comply with subsection (2) shall be guilty of an offence and shall be liable on conviction to a fine at level 3. (Replaced 103 of 1995 s. 8) EMPLOYMENT ORDINANCE - SECT 31P Written particulars of severance payment VerDate:30/06/1997 (1) On making any severance payment, otherwise than in pursuance of a decision of the Minor Employment Claims Adjudication Board or Labour Tribunal which specifies the amount of the payment to be made, the employer shall give to the employee a written statement indicating how the amount of the payment has been calculated. (Amended 61 of 1994 s. 52) (2) (a) An employer who without reasonable excuse fails to comply with subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine at level 3. (b) An employer who in a statement under subsection (1) includes anything which to his knowledge is false in a material particular, or recklessly includes anything which is false in a material particular shall be guilty of an offence and shall be liable on conviction to a fine at level 5. (Replaced 103 of 1995 s. 9) (3) Without prejudice to any proceedings for an offence under subsection (2)(a), if an employer fails to comply with the requirements of subsection (1), the employee may by notice in writing to the employer require the employer to give to the employee a written statement complying with those requirements within such period (not being less than 1 week beginning with the day on which the notice was given) as may be specified in the notice. (4) If, without reasonable excuse, an employer fails to comply with a notice under subsection (3) he shall be guilty of an offence and shall be liable- (a) in the case of a first conviction to a fine at level 3; or (b) in the case of a second or subsequent conviction, to a fine at level 5. (Amended 24 of 1988 s. 2; 103 of 1995 s. 9) [cf. 1965 c. 62 s. 18 U.K.] EMPLOYMENT ORDINANCE - SECT 31Q Presumption VerDate:30/06/1997 For the purposes of this Part an employee who has been dismissed by his employer shall, unless the contrary is proved, be presumed to have been so dismissed by reason of redundancy. [cf. 1965 c. 62 s. 9(2) U.K.] (Part VA added 67 of 1974 s. 5) EMPLOYMENT ORDINANCE - SECT 31R General provisions as to employee's right to long service payment VerDate:01/12/2006 PART VB LONG SERVICE PAYMENTS (1) Where an employee who has been employed under a continuous contract- (a) for not less than 5 years of service at the relevant date- (Amended 74 of 1997 s. 10) (i) is dismissed and his employer is not liable to pay him a severance payment by reason thereof; or (ii) subject to subsections (3) to (5), terminates his contract in the circumstances specified in section 10(aa); or (Amended 61 of 1993 s. 5) (b) terminates his contract and, at the relevant date, he is not less than 65 years of age and has been employed under that contract for not less than 5 years, (Amended 65 of 1995 s. 2) the employer shall, subject to this Part and Part VC, pay to the employee a long service payment calculated in accordance with section 31V(1). (Amended 105 of 1991 s. 2) (2) (Repealed 74 of 1997 s. 10) (3) Where an employee has terminated his contract in the circumstances specified in section 10(aa) upon being certified as being permanently unfit for a particular type of work, the employer may require the employee to undergo a medical examination, at the employer's expense, to obtain a second opinion as to whether or not the employee is permanently unfit for that type of work. (Replaced 16 of 2006 s. 6) (3A) A medical examination referred to in subsection (3) shall be conducted by a registered medical practitioner or registered Chinese medicine practitioner named by the employer, regardless of whether the certificate issued in respect of the employee for the purposes of section 10(aa)(ii) was issued by a registered medical practitioner or registered Chinese medicine practitioner. (Added 16 of 2006 s. 6) (4) An employer shall forfeit his right to exercise the option under subsection (3) unless- (a) he makes arrangements for a medical examination to take place not more than 14 days after the employer receives a copy of a certificate issued under section 10(aa); and (b) he notifies the employee in writing, not less than 48 hours before the examination is to take place, giving him details of the appointment. (Added 61 of 1993 s. 5) (5) An employee referred to in subsection (3) who, without reasonable excuse, refuses to undergo a medical examination forfeits his right to a long service payment under this Part. (Added 61 of 1993 s. 5) (6) Where the second opinion obtained by an employer under subsection (3) comes to the opposite conclusion from the certificate issued under section 10(aa), the employer shall submit the certificate and the second opinion to the Commissioner and the Commissioner shall, after such consultation with such medical experts as he considers necessary, rule whether or not the employee is entitled to a long service payment under this Part. (Added 61 of 1993 s. 5) (Replaced 52 of 1988 s. 6. Amended 41 of 1990 s. 11) EMPLOYMENT ORDINANCE - SECT 31RA Death of employee VerDate:27/06/1998 (1) Where an employee dies and he had been at the time of his death employed under a continuous contract for not less than 5 years of service on the date of his death, the employer shall, subject to this Part and Part VC, pay a long service payment calculated in accordance with section 31V(1) to- (Amended 105 of 1991 s. 3; 74 of 1997 s. 11) (a) the spouse of the employee, if the employee leaves a spouse; or (b) the issue of the employee, if the employee leaves any issue but no spouse; or (c) a parent of the employee, if the employee leaves neither a spouse nor issue; or (d) the personal representative of the employee, if the employee does not leave any spouse, issue or parent. (1A) (Repealed 74 of 1997 s. 11) (2) A person referred to in paragraph (a), (b), (c) or (d) of subsection (1) shall not be entitled to such payment unless- (a) that person serves an application in the form specified by the Commissioner under section 49 on the relevant employer within the period of 30 days beginning on the day next following the date of death of the employee or within such extended period as the Commissioner may allow; and (b) the applicant's relationship (being a relationship mentioned in paragraph (a), (b), (c) or (d) of subsection (1)) to the deceased employee is supported by documentary evidence. (3) The Commissioner may extend the time for serving an application under subsection (2) although the application for extension is not made until after the expiration of the period of 30 days after the date of death of an employee. (4) Where a person referred to in paragraph (a) or (b) of subsection (1) is a minor, the application under subsection (2) shall be made by the guardian of that person. (5) Where a person is entitled to a long service payment under this section, the employer shall pay such person the long service payment to which he is entitled- (a) where the person so entitled is a spouse, not later than 7 days after the receipt of the application; or (b) where the person so entitled is not a spouse, not earlier than the day (hereinafter in this paragraph called "the said day") next following the date of expiration of the period which, as regards the particular case, was the period during which an application under subsection (2)(a) could be served but not later than 7 days after the said day. (6) An employer who without reasonable excuse fails to pay a long service payment on or before the latest date for payment as required by subsection (5) shall be guilty of an offence and shall be liable on conviction to a fine at level 5. (Amended 103 of 1995 s. 10) (7) Where 2 or more persons are entitled to a long service payment under this section, the long service payment shall be divided equally between such persons. (8) A long service payment is payable in accordance with this Part by an employer on the death of an employee from whatever cause and is payable in addition to any compensation payable by the employer under the Employees' Compensation Ordinance (Cap 282). (Added 52 of 1988 s. 6) EMPLOYMENT ORDINANCE - SECT 31RB Application to domestic servants VerDate:30/06/1997 This Part (except section 31Z) shall apply to an employee who is employed as a domestic servant in, or in connection with, a private household as if the household were a business and the maintenance of the household were the carrying on of that business by the employer. (Added 52 of 1988 s. 6) EMPLOYMENT ORDINANCE - SECT 31S General exclusions from right to long service payment by reason of dismissal VerDate:07/07/2000 (1) An employee shall not be entitled to a long service payment by reason of dismissal where his employer, being so entitled by reason of the employee's conduct, terminates his contract of employment without notice or payment in lieu in accordance with section 9. (Amended 51 of 2000 s. 5) (2) An employee shall not be entitled to a long service payment by reason of dismissal where, having been given notice of the termination of his contract of employment by his employer in accordance with section 6, he leaves the service of his employer before the expiration of that notice unless he so leaves- (a) with the prior consent of the employer; or (b) after having made a payment in lieu to the employer in accordance with section 7. (Replaced 75 of 1997 s. 3) (3) Subject to subsection (6), an employee employed under a contract for a fixed term shall not be entitled to a long service payment where he is taken to be dismissed by his employer under section 31T(1)(b) if, not less than 7 days before the relevant date, the employer has offered to renew his contract of employment, or to re-engage him under a new contract, so that- (a) the provisions of the contract as renewed, or of the new contract, as the case may be, as to the capacity and place in which he would be employed, and as to the other terms and conditions of his employment, would not differ from the corresponding provisions of the contract as in force immediately before his dismissal; and (b) the renewal or re-engagement would take effect on or before the relevant date, and the employee has unreasonably refused that offer. (Added 75 of 1997 s. 3) (4) Subject to subsection (6), an employee employed under a contract for a fixed term shall not be entitled to a long service payment where he is taken to be dismissed by his employer under section 31T(1)(b) if, not less than 7 days before the relevant date, the employer has made to him an offer in writing to renew his contract of employment, or to re-engage him under a new contract, so that in accordance with the particulars specified in the offer the provisions of the contract as renewed, or of the new contract, as the case may be, as to the capacity and place in which he would be employed, and as to the other terms and conditions of his employment, would differ, wholly or in part, from the corresponding provisions of the contract as in force immediately before his dismissal, but- (a) the offer constitutes an offer of suitable employment in relation to the employee; (b) the offer constitutes an offer of employment no less favourable to the employee than hitherto; and (c) the renewal or re-engagement would take effect on or before the relevant date, and the employee has unreasonably refused that offer. (Added 75 of 1997 s. 3) (5) Where the relevant date falls on a rest day or holiday, the references in subsections (3)(b) and (4)(c) to the relevant date shall be construed as references to the next day after that rest day or holiday. (Added 75 of 1997 s. 3) (6) Without affecting the application of section 31R(1)(a)(ii) and (b) and (2)(b), where an employee employed under a contract for a fixed term, on or before the day on which the contract for a fixed term expires, refuses an offer of any of the descriptions mentioned in subsection (3) or (4)- (a) the employee is entitled to terminate that contract under section 31R(1)(a)(ii) or (2)(b) as appropriate, that expiration shall be regarded as termination of contract by the employee under section 31R(1)(a)(ii) or (2)(b) for the purposes of the application of this Part; or (b) the employee is entitled to terminate that contract under section 31R(1)(b), that expiration shall be regarded as termination of contract by the employee under section 31R(1)(b) for the purposes of the application of this Part. (Added 75 of 1997 s. 3) EMPLOYMENT ORDINANCE - SECT 31T Dismissal by employer VerDate:30/06/1997 (1) For the purposes of and subject to this Part, an employee shall be taken to be dismissed by his employer if, but only if- (a) the contract under which he is employed is terminated by the employer with or without notice or payment in lieu thereof other than in accordance with section 9; (b) where under that contract he is employed for a fixed term, that term expires without being renewed under the same contract; or (c) the employee terminates that contract with or without notice or payment in lieu, in circumstances such that he is entitled to terminate it without notice or payment in lieu in accordance with section 10 by reason of the employer's conduct. (Replaced 62 of 1992 s. 9) (2) An employee shall not be taken for the purposes of this Part to be dismissed by his employer if- (a) his contract of employment is renewed, or he is re-engaged by the same employer under a new contract of employment; and (b) the renewal or re-engagement takes effect immediately on the ending of his employment under the previous contract. (3) For the purposes of the application of subsection (2) to a contract under which the employment ends on a rest day or holiday, the renewal or re-engagement shall be treated as taking effect immediately on the ending of the employment under the previous contract if it takes effect on or before the next day after that rest day or holiday. EMPLOYMENT ORDINANCE - SECT 31U Excluded classes of employees VerDate:30/06/1997 Sections 31R and 31RA shall not apply- (Amended 52 of 1988 s. 7) (a) where the employer is the husband or wife of the employee; (b) to any outworker; (c) to any person, employed by a government other than the Hong Kong Government, who is a subject or citizen of the state under whose go