Employment Ordinance

(1)
For the purposes of this
section—
(a)
order for re-engagement
(
再次聘用的命令
) means an order for re-engagement made under
section 32N
and includes such an order as varied under this section or
section 32PC
;
(b)
successor
(
繼承人
), in relation to an employer who employed an employee for the purposes of an undertaking or part of an undertaking, means (subject to paragraph (c)) a person who, in consequence of a change in the ownership of that undertaking or part (whether the change occurred by virtue of a sale or other disposition or by operation of law), has become the owner of that undertaking or part;
(c)
the definition of
successor
in paragraph (b) has effect (subject to the necessary modifications) in relation to a case
where—
(i)
the person who owned an undertaking or part of an undertaking immediately before a change is one of the persons who own it immediately after the change (whether as partners, trustees or otherwise); or
(ii)
the persons who owned an undertaking or part of an undertaking immediately before a change (whether as partners, trustees or otherwise) include the persons, or one or more of the persons, who own it immediately after the change,
as it has effect where the previous owner and the new owner are wholly different persons; and
(d)
associated company
is to be construed in accordance with
section 32E(3)
and (4).
(2)
If the court or Labour Tribunal made an order for re-engagement (
principal order
) against an employer (
original employer
), it may, on application, order variation of the principal order to the effect that engagement of the employee by a successor or associated company of the original employer (
alternative employer
) is to be treated as re-engagement by the original employer in compliance with the principal order.
(3)
An application for the purposes of subsection (2) may only be made
if—
(a)
there is a written agreement
among—
(i)
the original employer;
(ii)
the employee; and
(iii)
the alternative employer;
(b)
the agreement states the parties’ agreement that engagement of the employee by the alternative employer is to be treated as re-engagement in compliance with the principal order;
(c)
the agreement states the terms on which the alternative employer is to engage the employee in order for the engagement to be treated as
re-
engagement in compliance with the principal order,
including—
(i)
the nature of the employment;
(ii)
the remuneration for the employment;
(iii)
any rights and privileges, including seniority and pension rights, that must be given to the employee;
(iv)
a term to the effect that the employee’s period of employment with the original employer is to be counted as a period of employment of the employee with the alternative employer for reckoning the employee’s existing and future entitlements under this Ordinance and the employee’s contract of employment with the alternative employer; and
(v)
a term to the effect that the continuity of the employee’s period of
employment—
(A)
is not to be treated as broken by the change of employer from the original employer to the alternative employer; and
(B)
is not to be treated as broken
by—
(I)
if the employee’s contract of employment with the original employer was terminated by the original employer by payment in lieu of notice—the employee’s absence from work between the last date on which the employee rendered services to the original employer and the date of engagement of the employee by the alternative employer; or
(II)
in any other case—the employee’s absence from work between the relevant date and the date of engagement of the employee by the alternative employer; and
(d)
the agreement states that the parties agree that, if the alternative employer engages the employee, the terms mentioned in paragraph (c) are to form part of the employee’s contract of employment with the alternative employer.
(4)
The application may only be made by the employee, and must be accompanied by the agreement or a copy of the agreement.
(5)
The application may only be
made—
(a)
not later than the date by which the employee must be re-engaged under the principal order; or
(b)
within such extended time as may be allowed by the court or Labour Tribunal.
(6)
An order of variation may only be made under this section if the court or Labour Tribunal is satisfied that the terms on which the alternative employer is to engage the employee, as specified in the agreement, are comparable to the terms on which the original employer is to re-engage the employee under the principal order, except the terms mentioned in
section 32N(6
)(
f)
and (g).
(7)
An order of variation made in relation to an application under this
section—
(a)
must specify that, in order for the engagement to be treated as re-engagement in compliance with the principal order, the alternative employer must engage the employee on the terms specified in the agreement by the date specified for that purpose in the order of variation;
(b)
must specify the legal consequences following from the alternative employer engaging the employee, as provided under
section 32PB
;
(c)
must specify that, subject to paragraphs (a) and (b), the principal order remains in full force and the original employer must re-engage the employee, except that the date by which the employee must be re-engaged by the original employer is also the date mentioned in paragraph (a); and
(d)
must specify that the original employer must pay to the employee the sums mentioned in
section 32NA(1)
by the date specified for that purpose in the order of variation if, by the date mentioned in paragraph (a), the employee is not re-engaged in accordance with the order (which means neither actually so re-engaged nor treated as so re-engaged).
(8)
Each of the following dates as specified under subsection (7) in an order of variation may be the same as or different from that date as specified in the principal
order—
(a)
the date by which the employee must be engaged;
(b)
the date by which the original employer must pay the sums mentioned in
section 32NA(1)
.