HANG FOOK LAU SEAFOOD RESTAURANT o/b COME KOON INVESTMENT LTD. v. KWOK SIK YUEN

HCLA 2/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO.2 OF 2000

(ON APPEAL FROM LBTC 10228/1999)

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REASONS FOR DECISION

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1. This is an appeal from the decision of a Presiding Officer of the Labour Tribunal dated 10 January 2000.

The Presiding Officer's Award

2. The Presiding Officer awarded the Respondent ("the employee") pay of $23,000 in lieu of 46 rest days on which the employee had worked.

3. The Appellant ("the employer") had contested liability, contending that it was a term of the contract of employment (Clause 6) that the employee would work on 2 rest days a month, the pay for which was included in the basic salary.

4. The Presiding Officer took the view that Clause 6 was void under s.70 of the Employment Ordinance Cap. 57 as it purported to extinguish or reduce a right conferred upon the employee by the Ordinance.

5. This clause having been struck down, the employee had been entitled to rest on the 2 rest days a month when he had worked. As the contract of employment had already terminated, he could no longer be given substitute rest days. Accordingly, he was awarded $23,000 by applying a daily wage of $500 (derived from the monthly salary of $15,000) to the 46 rest days on which he had worked.

6. After hearing the appeal, I dismissed the appeal with costs (if any) to the Respondent and said that I would hand down the written reasons for my decision at a later stage. I do so now.

Legislation concerning Rest Days

7. The legislation concerning rest days is set out in Part IV of the Employment Ordinance.

8. It is clear that the purpose of this Part is to provide the employee with the opportunity to rest on at least 1 day in every period of 7 days.

9. Section 17 is a mandatory provision that 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, subject to the other provisions of Part IV. A "rest day" is defined in s.2 as 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.

10. Section 19 is entitled "compulsory work on rest days" and stipulates that "no employer shall require an employee to work on any of his rest days", the only exception being unforeseen emergency work.

11. In other words, with the exception only of unforeseen emergency work - for which an employer may compel the employee to work, it is not open to an employer to require the employee to work, by giving him pay in lieu of his rest day, or indeed, any other benefits.

12. Section 20 is entitled "voluntary work on rest days" and provides:-

"(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". [emphasis added]

13. Sections 19 and 20 complement each other. They show that, unless there is unforeseen emergency work, an employee has the right to choose whether or not to work on a rest day even though his employer wants him to work. If an employer wants the employee to work on a rest day, the employer has to "request" the employee to do so, and obviously with any request, the person who receives a request has the freedom to say "Yes" or "No". (cf s.15C, s.40A, s.41E - where the legislation prohibit the employee from saying "Yes").

14. Section 21 underscores and bolsters the employee's freedom of choice - whether or not to accede to the employer's request for him to work on a rest day - by providing that 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 shall be void.

Employee's rights under Part IV

15. The right that Part IV of the Employment Ordinance gives to every employee is the opportunity to rest, so that if his employer requests him to work on a rest day, he has the freedom to choose, to say "No".

16. If he chooses to say "No", he suffers no loss of rights under his contract, such as payment of any annual bonus, or end of year payment, let alone dismissal from employment or a claim against him by his employer.

Clause 6

17. Clause 6 of the contract of employment in the present case, however, provided:-

“假期： 受僱人每月例假弍天，另弍天例假則撥入底薪計算在內。”

("Holidays: Two days statutory holidays monthly for the employee, whilst the other two days statutory holidays are included in the calculation of the basic salary").

18. Although the clause refers to "statutory holidays", it is clear from the reference to a total of 4 days monthly that what was meant were rest days prescribed under the Ordinance (ignoring for present purposes the difference between 28 days and the calendar month of 30 or 31 days).

Clause 6 void under s.70

19. Thus by clause 6, it became a term of the contract of employment that the employee had to work on 2 out of 4 rest days a month. Should he fail to do so, he would be in breach of the contract of employment and liable to be dismissed or disciplined.

20. The effect of this clause is to reduce the right conferred upon every employee by the Ordinance to choose whether to work or to rest on all 4 rest days a month.

21. It is therefore void under s.70 of the Ordinance, which provides that "any term of a contract of employment which purports to extinguish or reduce any right, benefit or protection conferred upon the employee by this Ordinance shall be void".

Not voluntary work under s.20

22. The submission of Mr Albert Yau, counsel for the employer, was that when this employee worked on his rest days, he was doing "voluntary work" under s.20 of the Ordinance. He submitted that the employer had simply made a s.20 request, and the employee acceded to the request, before the contract was signed.

23. He submitted that it would be artificial to draw a distinction between a request made before the contract was signed and a request made afterwards.

24. I cannot agree. Section 20 only applies to a situation where a "request" to work on a rest day is made by the "employer" to the "employee" . The language of the enactment is clear - the request is made as between an employer and an employee, i.e. during the course of employment, when the employee is secure in his enjoyment of the right under Part IV to choose to rest on a rest day, and he can say "No" without detriment to his employment.

25. The distinction that Mr Yau submits is "artificial" is a real one. Take Mr A who signs a contract where Clause 6 has been imposed as a term of the contract of employment. His choice - whether to work or to rest on a rest day during his employment - has been taken from him even before the employment began. If he does not agree to work on a "working rest day", he would not be employed at all. Once he is employed, if he were to choose to rest on a "working rest day", he is liable to be dismissed or disciplined for breach of contract.

26. Compare his case with Mr B whose contract of employment does not contain Clause 6. If a request to work on a rest day is put to him after he became an employee, he could say "No" without risk of dismissal or detriment to his employment.

27. Mr A and Mr B may get exactly the same amount of pay for working on the rest day. They may end up working the same number of rest days. If Mr B agrees to work on a rest day but fails to turn up, he may face similar penalties as Mr A. But that is not the point. The point is that in the first instance, Mr A cannot choose to say "No" to working on a rest day without fear of dismissal or detriment, and Mr B can. That is exactly the purpose of the benefit conferred on employees by Part IV - the free opportunity to say "Yes" or "No", to work or to rest, on rest days.

No double recovery

28. A further submission that Mr Yau made was that under the Labour Tribunal's award, the Respondent is being paid twice for the 46 rest days because under Clause 6, the pay for working on the 2 "working rest days" had been included in the basic salary.

29. Mr Yau was unable to refer the Court to any authorities to the effect that even after a term of a contract is struck down as void as being contrary to statute, it could nevertheless be relied upon as determining the rights of the parties thereto.

30. A further difficulty that Mr Yau had was that the salary here was a monthly salary, and not daily-rated. Thus, if there were statutory holidays during any particular month, the Respondent would have got the same pay as for another month when there were more working days. On the face of it, therefore, the salary was not pegged to the number of working days. There was also no evidence before the Tribunal or the Court as to how much the employer would have offered and how much the employee would have accepted if Clause 6 had been excluded.

31. In the circumstances above, and in light of the fact that the contract has been terminated so that no substitute rest days could be given, the Presiding Officer was in my view correct in making the award that he did.

Order

32. I therefore dismissed the appeal with costs if any to the Respondent.