Rest Days, Statutory Holidays
and 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 provided by the Employment Ordinance and explains their different applications.
2 The Employment Ordinance is applicable to non-manual workers earning
not more than 52,000 a month and manual workers irrespective of the amount
of their wage earnings. It provides for, among other things, 52 rest days, ten
statutory holidays and seven days of annual leave in a year.
3 References are made to "continuous contract" in this guide. It is one where
the employee has worked for the same employer for four weeks or more, prior
to a given date, on at least three days in each of the four weeks and for not less
than six hours on each day.
REST DAYS
Qualifications for entitlement
4 Every employee covered by the Employment Ordinance, who has worked
for the same employer under a "continuous contract", is entitled to one rest day
in every period of seven days.
5 Women and young persons employed in industry are entitled to a day off in
a wreek under the Factories and Industrial Undertakings Regulations and are
not permitted to wwk on their rest days.
Appointment of rest days
6 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 a
particular day of the week, it is sufficient for the employer to inform his employees of this arrangement. Otherwise, before the beginning of each month,
the employer must inform all his employees of the appointed rest days during the
month. He may do this orally or in writing or by displaying a roster showing
the dates of the appointed rest days for each employee and specifying the effective
period of the roster.
Changing the rest days
7 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 original
rest day or within 30 days after it.
Compulsory work on rest days
8 In the event of a breakdown of machinery or plant or in any other unforeseen emergency, the employer may require the employee to work on the original
rest day but he must within 48 hours, notify the employee of the date of the
substituted rest day which must be given within 30 days following the original
one.
1
Voluntary work on rest days
9 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 the
employee is free to agree or not as he wishes. An employer cannot compel an
employee to work on a rest day except in the circumstance described in the
preceding paragraph.
Rest days and annual bonus
10 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 days
is void.
Pay for rest days
11 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 entitlement
12 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" holiday
13 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 posted
in a conspicuous place in the place of employment throughout the year in which
the holiday is granted. If the employer does not designate this holiday, then it
will automatically fall on the first week day in July or the first Monday in August
of the year at the employer's option.
Alternative holiday
14 An employer may give his employee an alternative holiday within 60 days
before or after a statutory holiday, provided he informs the employee 48 hours
before the alternative holiday, if he intends to give it during the 60 days preceding
the statutory holiday; or 48 hours before the statutory holiday itself, if he intends
the alternative holiday to be given within 60 days after the statutory holiday.
Substituted holiday
15 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 substituted
holiday.
Women and young persons
16 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 entitlement
17 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 that
holiday. Holiday pay shall be a sum equivalent to the wages, other than overtime
pay, which the employee would have earned if he had worked on the day. Where
an employee is employed on piece rates or where the daily wages of an employee
vary from day to day, the holiday pay shall be a sum equivalent to the average
daily wages earned by the employee on the days on which he had worked
during the period of 28 days preceding the holiday. Payment must be made on
the normal pay day.
PAID ANNUAL LEAVE
Qualification for entitlement
18 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 continuous contract which does not terminate before 1st January 1978 will qualify
for annual leave.
Time for the grant of annual leave
19 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 under
a "continuous contract". The time of the leave shall be appointed by the employer after consultation with the employee or his representatives.
20 An employer must give his employee not less than 14 days' notice in writing
of the time he has appointed for the grant of annual leave. If agreed to by both
parties, a shorter period of notice may be given.
Manner of granting and taking annual leave
21 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 during
which that leave is required to be granted, a period of not less than seven consecutive days of absence from work. This period may be comprised entirely of
annual leave or comprised partly of annual leave, the other days being statutory
holidays or rest days.
22 If an employee so requests, the employer shall grant him instead of seven
consecutive days of annual leave, a minimum of four consecutive days of annual
leave at one time during the 12-month period concerned and, at another time
during the same periodic remaining days of annual leave, if any, either consecutively or separately in accordance with paragraph 19 above.
23 If a rest day falls within, the period of seven consecutive days of absence
from work as described in paragraph 21, it will be counted as annual leave and
another rest day must be substituted.
Total incapacity for work
24 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 the
commencement of the annual leave.
Payment and rate of annual leave pay
25 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 wages
after the leave.
26 Annual leave pay shall be a sum equivalent to the wages, other than overtime pay, which the employee would have earned if he had worked during the
period of annual leave. Where an employee is employed on piece rates or where
the wages of an employee vary from day to day, the annual leave pay shall be
calculated by reference to the average daily wages earned during the period of
28 days preceding the period of annual leave, or the termination of the contract
of employment as the case may be.
Annual leave pay on termination of employment
27 On termination by either party for whatever reason including dismissal
under section 9 of the Employment Ordinance after 12 months* employment
under a "continuous contract", for which an employee has not been granted
paid annual leave or the whole of such leave, he shall be entitled to payment in
lieu of untaken annual leave.
28 On termination by either party after three but less than 12 months' employment under a "continuous contract", for whatever reason excluding dismissal
under section 9 but including resignation, an employee shall be paid a pro rate
sum in lieu of annual leave equal to seven days' pay times the number of completed weeks of employment divided by 52, together with his entitlement in the
preceding paragraph, if any.
29 All such payments must be made as soon as practicable and in any case
not later than seven days after termination,
Annual leave shutdown
30 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 Ms
intention to do so to every employee who will, as a result, have to take annual
leave or stop work during the period of closure.
31 To comply with this requirement of notice, a notice of the closure containing the names of all employees who will thus be affected may be exhibited in a
conspicuous place in the place of employment not later than one month before
commencement of the period of closure. Instead of actually naming the
employees the employer may provide such details in the notice as to clearly
identify them.
32 Every person who is an employee at the commencement of the period of
closure and who is otherwise not entitled to annual leave pay in respect of any
day during that period shall be allowed that day as annual leave and be paid
annual leave pay by the employer. Any annual leave with pay allowed in such
circumstances shall be deemed to have been granted in respect of a period of
12 months' employment under a "continuous contract" ending immediately
before the period of closure.
Annual leave records
33 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 of
granting any annual leave to any of his employees; and
(b) all annual leave pay received by each employee.
OFFENCES AND PENALTIES
34 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 Office
New Rodney Block
Queen sway, Hong Kong
Tel No. 5-282523 Ext. 60
Labour Relations Service (Kowloon East)
San Po Kong Government Offices
Prince Edward Road
San Po Kong, Kowloon
Tel. No. 3-205638
Labour Relations Service (Kowloon West)
San Po Kong Government Offices
Prince Edward Road
San Po Kong, Kowloon
Tel. No. 3-201652
Labour Relations Service (Kwun Tong)
Kwun Tong District Branch Office Building
Tung Yan Street
Second Floor
Kwun Tong, Kowloon
Tel. No. 3-898520
Labour Relations Service (Tsuen Wan)
Chartered Bank Building
Third Floor
Tsuen Wan, New Territories
Tel No. 12-422096
Labour Relations Service (Tuen Mun)
39, Tak Ching Court
Tuen Mun New Town
New Territories
Tel. No. 12-818443
Printed by J. R. Lee, Government Printer
at tne Government Press, Java Road, Hong Kong
75013—600L—11/77