Rest Days, Statutory Holidaysand Paid Annual Leave

under the Employment Ordinance

Labour Department. Hong Kong

k~~si*r

I UNIVERSITY OF HONG KONG

LIBRARY

REST bAYS, STATUTORY HOLIDAYS AND

PAID ANNUAL LEAVE UNDER THE EMPLOYMENT ORDINANCE

This guide defines three distinct types of statutory benefits for employees pro-vided by the Employment Ordinance and explains their different applications.

2 The Employment Ordinance is applicable to non-manual workers earningnot more than 52,000 a month and manual workers irrespective of the amountof their wage earnings. It provides for, among other things, 52 rest days, tenstatutory holidays and seven days of annual leave in a year.

3 References are made to "continuous contract" in this guide. It is one wherethe employee has worked for the same employer for four weeks or more, priorto a given date, on at least three days in each of the four weeks and for not lessthan six hours on each day.

REST DAYS

Qualifications for entitlement4 Every employee covered by the Employment Ordinance, who has worked

for the same employer under a "continuous contract", is entitled to one rest dayin every period of seven days.

5 Women and young persons employed in industry are entitled to a day off ina wreek under the Factories and Industrial Undertakings Regulations and arenot permitted to wwk on their rest days.

Appointment of rest days6 Before the beginning of each month, the employer must appoint the rest

days of his employees. If these are on a regular basis and always fall on aparticular day of the week, it is sufficient for the employer to inform his em-ployees of this arrangement. Otherwise, before the beginning of each month,the employer must inform all his employees of the appointed rest days during themonth. He may do this orally or in writing or by displaying a roster showingthe dates of the appointed rest days for each employee and specifying the effectiveperiod of the roster.

Changing the rest days7 An employer may substitute some other rest day with the consent of the

employee, in which case it must be within the same month and before the originalrest day or within 30 days after it.

Compulsory work on rest days8 In the event of a breakdown of machinery or plant or in any other unfore-

seen emergency, the employer may require the employee to work on the originalrest day but he must within 48 hours, notify the employee of the date of thesubstituted rest day which must be given within 30 days following the originalone.

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Voluntary work on rest days9 An employee may, at his own request and if his employer agrees, work on a

rest day. An employer may ask an employee to work on a rest day and theemployee is free to agree or not as he wishes. An employer cannot compel anemployee to work on a rest day except in the circumstance described in thepreceding paragraph.

Rest days and annual bonus10 A condition In a contract of employment which makes payment of any

type of annual bonus conditional on an employee agreeing to work on rest daysis void.

Pay for rest days11 The ordinance does not deal with this question. It will depend upon the

express or implied conditions in the oral or written contract of employment.

STATUTORY HOLIDAYS (HOLIDAYS WITH PAY)

Holiday entitlement12 All workers covered by the Employment Ordinance are entitled to ten

statutory holidays in a year as follows:(a) the first day of January(b) Lunar New Year's Day(c) the second day of Lunar New Year(d) the third day of Lunar New Year(e) Ching Ming Festival(/) Tuen Ng (Dragon Boat) Festival(g) the day following the Chinese Mid-Autumn Festival(h) Chung Yeung Festival(/) Chinese Winter Solstice Festival or Christmas Day at the employer's option(./) a "floating" holiday

"Floating" holiday13 This holiday shall be designated by an employer and notified to each of his

employee by notice at the end of the preceding year. This notice should be postedin a conspicuous place in the place of employment throughout the year in whichthe holiday is granted. If the employer does not designate this holiday, then itwill automatically fall on the first week day in July or the first Monday in Augustof the year at the employer's option.

Alternative holiday14 An employer may give his employee an alternative holiday within 60 days

before or after a statutory holiday, provided he informs the employee 48 hoursbefore the alternative holiday, if he intends to give it during the 60 days precedingthe statutory holiday; or 48 hours before the statutory holiday itself, if he intendsthe alternative holiday to be given within 60 days after the statutory holiday.

Substituted holiday15 If the employer and employee agree, any day within 30 days of a statutory

holiday or alternative holiday may be taken by the employee as a substitutedholiday.

Women and young persons16 Women and young persons in industry are required by law to be given one

rest day a week. If a statutory holiday or any holiday in lieu falls on a rest day,the holiday should be given on the day following the rest day.

Holiday pay entitlement17 If an employee has worked under a "continuous contract" for his employer

for three months preceding a statutory holiday, he is entitled to be paid for thatholiday. Holiday pay shall be a sum equivalent to the wages, other than overtimepay, which the employee would have earned if he had worked on the day. Wherean employee is employed on piece rates or where the daily wages of an employeevary from day to day, the holiday pay shall be a sum equivalent to the averagedaily wages earned by the employee on the days on which he had workedduring the period of 28 days preceding the holiday. Payment must be made onthe normal pay day.

PAID ANNUAL LEAVE

Qualification for entitlement18 With effect from 1st January 1978, an employee is entitled to seven days of

annual leave with pay after serving 12 months under a "continuous contract**with the same employer. Any employment, however, during 1977 under a con-tinuous contract which does not terminate before 1st January 1978 will qualifyfor annual leave.

Time for the grant of annual leave19 Paid annual leave shall be granted by an employer within the period of 12

months following the completion of a 12-month period of employment undera "continuous contract". The time of the leave shall be appointed by the em-ployer after consultation with the employee or his representatives.

20 An employer must give his employee not less than 14 days' notice in writingof the time he has appointed for the grant of annual leave. If agreed to by bothparties, a shorter period of notice may be given.

Manner of granting and taking annual leave21 Annual leave must be granted by the employer and taken by the employee

in such manner that the employee has, within the period of 12 months duringwhich that leave is required to be granted, a period of not less than seven con-secutive days of absence from work. This period may be comprised entirely ofannual leave or comprised partly of annual leave, the other days being statutoryholidays or rest days.

22 If an employee so requests, the employer shall grant him instead of sevenconsecutive days of annual leave, a minimum of four consecutive days of annualleave at one time during the 12-month period concerned and, at another timeduring the same periodic remaining days of annual leave, if any, either con-secutively or separately in accordance with paragraph 19 above.

23 If a rest day falls within, the period of seven consecutive days of absencefrom work as described in paragraph 21, it will be counted as annual leave andanother rest day must be substituted.

Total incapacity for work24 A period of total incapacity for work by reason of sickness or injury may

not be counted as part of a period of annual leave unless it commences after thecommencement of the annual leave.

Payment and rate of annual leave pay25 Payment of annual leave pay in respect of a period of annual leave must

be made not later than the day on which an employee is next paid his wagesafter the leave.

26 Annual leave pay shall be a sum equivalent to the wages, other than over-time pay, which the employee would have earned if he had worked during theperiod of annual leave. Where an employee is employed on piece rates or wherethe wages of an employee vary from day to day, the annual leave pay shall becalculated by reference to the average daily wages earned during the period of28 days preceding the period of annual leave, or the termination of the contractof employment as the case may be.

Annual leave pay on termination of employment27 On termination by either party for whatever reason including dismissal

under section 9 of the Employment Ordinance after 12 months* employmentunder a "continuous contract", for which an employee has not been grantedpaid annual leave or the whole of such leave, he shall be entitled to payment inlieu of untaken annual leave.

28 On termination by either party after three but less than 12 months' employ-ment under a "continuous contract", for whatever reason excluding dismissalunder section 9 but including resignation, an employee shall be paid a pro ratesum in lieu of annual leave equal to seven days' pay times the number of com-pleted weeks of employment divided by 52, together with his entitlement in thepreceding paragraph, if any.

29 All such payments must be made as soon as practicable and in any casenot later than seven days after termination,

Annual leave shutdown30 An employer who intends to close down his business or part of it for the

purpose of granting annual leave must give one month's written notice of Msintention to do so to every employee who will, as a result, have to take annualleave or stop work during the period of closure.

31 To comply with this requirement of notice, a notice of the closure contain-ing the names of all employees who will thus be affected may be exhibited in aconspicuous place in the place of employment not later than one month beforecommencement of the period of closure. Instead of actually naming theemployees the employer may provide such details in the notice as to clearlyidentify them.

32 Every person who is an employee at the commencement of the period ofclosure and who is otherwise not entitled to annual leave pay in respect of anyday during that period shall be allowed that day as annual leave and be paidannual leave pay by the employer. Any annual leave with pay allowed in suchcircumstances shall be deemed to have been granted in respect of a period of12 months' employment under a "continuous contract" ending immediatelybefore the period of closure.

Annual leave records33 Every employer must keep a record of:(a) the date of commencement and termination of

i) the employment of each employee;ii) all periods of annual leave taken by each employee; and

iii) all periods of closure of business or part thereof for the purpose ofgranting any annual leave to any of his employees; and

(b) all annual leave pay received by each employee.

OFFENCES AND PENALTIES34 An employer who fails to comply with provisions relating to rest days,

statutory holidays or paid annual leave may be guilty of an offence and liable,upon conviction, to a fine of $5,000 for each offence.

APPENDIX

Offices of the Labour Relations Service of the Labour Department are:

Labour Relations Service (Hong Kong Island)Hong Kong Regional OfficeNew Rodney BlockQueen sway, Hong KongTel No. 5-282523 Ext. 60

Labour Relations Service (Kowloon East)San Po Kong Government OfficesPrince Edward RoadSan Po Kong, KowloonTel. No. 3-205638

Labour Relations Service (Kowloon West)San Po Kong Government OfficesPrince Edward RoadSan Po Kong, KowloonTel. No. 3-201652

Labour Relations Service (Kwun Tong)Kwun Tong District Branch Office BuildingTung Yan StreetSecond FloorKwun Tong, KowloonTel. No. 3-898520

Labour Relations Service (Tsuen Wan)Chartered Bank BuildingThird FloorTsuen Wan, New TerritoriesTel No. 12-422096

Labour Relations Service (Tuen Mun)39, Tak Ching CourtTuen Mun New TownNew TerritoriesTel. No. 12-818443

Printed by J. R. Lee, Government Printerat tne Government Press, Java Road, Hong Kong 75013—600L—11/77