Employment Ordinance

(1)
For the purposes of subsections (2), (3) and (4),
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. 13
)
(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
).
(2)
The daily rate of annual leave pay is a sum equivalent to the daily average of the wages earned by the employee
during—
(a)
the period of 12 months immediately before the day of annual leave, the first day of the annual leave or the date of termination of the contract of employment (as appropriate); or
(b)
if the employee has been employed by the employer concerned for a period shorter than 12 months immediately before the day of annual leave, the first day of the annual leave or the date of termination of the contract (as appropriate), the shorter period.
(3)
In calculating the daily 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. 13
)
(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.
(4)
For the avoidance of doubt, if the amount of the wages paid to an employee in respect of a day specified in subsection (1) 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 (3).
(5)
Despite subsection (2), if for any reason it is impracticable to calculate the daily 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 employee’s day of annual leave, the first day of his annual leave or the date of termination of his contract of employment (as appropriate), 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 employee’s day of annual leave, the first day of his annual leave or the date of termination of his contract of employment (as appropriate).
(6)
If, pursuant to the terms of his contract of employment or any other agreement or for any other reason, an employee is paid by his employer a sum of money in respect of a day of annual leave taken by him, the annual leave pay payable to the employee in respect of that day of annual leave is to be reduced by the sum.