Employment Ordinance

(1)
This section applies in calculating an employee’s average monthly wages for the purposes of
section 32NA(1
)(
b
)(
ii)
.
(2)
In subsections (3), (4) and (5
)—
wages
(
工資
) includes a sum of money paid by an employer in respect of any of the following days—
(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;
(b)
a day of leave taken by the employee with the agreement of the employer;
(c)
a normal working day on which the employee is not provided with work by the employer;
(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
).
(3)
The employee’s average monthly wages are the average monthly wages earned by the employee
during—
(a)
the period of 12 months immediately before the date of termination of the contract of employment; or
(b)
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 of employment—the shorter period.
(4)
The average monthly wages are to be calculated without regard
to—
(a)
any period (
excluded period
) during the
12-
month period or shorter period for which the employee was not paid wages or full wages because
of—
(i)
any maternity leave, paternity leave, rest day, sickness day, holiday or annual leave taken by the employee;
(ii)
any leave taken by the employee with the agreement of the employer;
(iii)
the employee’s not being provided with work by the employer on a normal working day; or
(iv)
the employee’s 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 the employee for the excluded period.
(5)
To avoid doubt, if the amount of the wages paid to an employee in respect of a day covered by the definition of
wages
in subsection (2) is only a fraction of the amount earned by the employee on a normal working day, the employee’s average monthly wages are to be calculated without regard to the wages and the day.
(6)
Despite subsection (3), if for any reason it is impracticable to calculate an employee’s average monthly wages in the manner provided in that subsection, the amount may be calculated by reference
to—
(a)
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
(b)
if there is no such person—the wages earned 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.