Employment Ordinance

(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
(
農曆年
)
                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 day of paternity leave, a rest day, a sickness day, a holiday or a day of annual leave taken by the employee;
(Amended
21 of 2014 s. 5
)
(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, paternity leave, rest day, sickness day, holiday or annual leave taken by the employee;
(Amended
21 of 2014 s. 5
)
(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
)