Cap. 57activeordinance

Employment Ordinance

僱傭條例

Full legislation

s.5

Sections 31Y, 31YAA, 31YA, 31YB and 31YC modified

“
31Y.
Long service payment to be reduced by amount of gratuities and
                            benefits in certain cases
(1)
This section applies
if—
(a)
a specified employee becomes entitled to payment of a long service
                            payment under this Part; and
(b)
any of the following conditions is
met—
(i)
because of the operation of the employee’s contract of
                                employment, one or more gratuities based on length of service have
                                been paid to the employee;
(ii)
because of the operation of that contract, one or more
                                employer-funded ORS benefits have been paid to the
                                employee;
(iii)
one or more employer-funded MPFS benefits are being held in one
                                or more mandatory provident fund schemes in respect of the employee,
                                or have been paid to or in respect of the employee.
(2)
The
pre-
transition portion of the long service payment is to be reduced
                        by the aggregate amount of the qualifying items specified under subsection
(4
)(
a)
, (b), (c), (d) and (e) to the extent that—
(a)
the gratuity or benefit relates to the employee’s years of service
                            for which the long service payment (including both the pre-transition
                            portion and post-transition portion of the payment) is payable;
                            and
(b)
in the case of a qualifying item specified under subsection
(4
)(
a)
, (b) or (c)—the gratuity or benefit has not been
                            used for a reduction under subsection (3).
(3)
The
post-
transition portion of the long service payment is to be reduced
                        by the aggregate amount of the qualifying items specified under subsection
(4
)(
a)
, (b) and (c) to the extent that—
(a)
the gratuity or benefit relates to the employee’s years of service
                            for which the long service payment (including both the pre-transition
                            portion and post-transition portion of the payment) is payable;
                            and
(b)
the gratuity or benefit has not been used for a reduction under
                            subsection (2).
(4)
The following items are qualifying items specified for the purposes of
                        subsections (2) and (3
)—
(a)
every one of the gratuities referred to in subsection
(1
)(
b
)(
i)
;
(b)
every one of the employer-funded ORS benefits referred to in
                            subsection
(1
)(
b
)(
ii)
that are employer-funded (specified)
                            ORS benefits;
(c)
every one of the employer-funded MPFS benefits referred to in
                            subsection
(1
)(
b
)(
iii)
that are employer-funded (voluntary)
                            MPFS benefits;
(d)
every one of the employer-funded ORS benefits referred to in
                            subsection
(1
)(
b
)(
ii)
that are employer-funded (basic
                            portion) exempt ORS benefits;
(e)
every one of the employer-funded MPFS benefits referred to in
                            subsection
(1
)(
b
)(
iii)
that are employer-funded (mandatory)
                            MPFS benefits.
31YAA.
Gratuity or benefit to be reduced by amount of long service payment
                            in certain cases
(1)
This section applies
if—
(a)
any of the following conditions is met in relation to a specified
employee—
(i)
because of the operation of the employee’s contract of
                                employment, the employee becomes entitled to payment of one or more
                                gratuities based on length of service;
(ii)
because of the operation of that contract, the employee becomes
                                entitled to payment of one or more employer-funded ORS
                                benefits;
(iii)
one or more employer-funded MPFS benefits are being held in one
                                or more mandatory provident fund schemes in respect of the employee;
                                and
(b)
the employee has been paid a long service payment under this
                            Part.
(1A)
The aggregate amount of the qualifying items specified under subsection
(1C
)(
a)
, (b), (c), (d) and (e) is to be reduced by the whole
                        amount of the
pre-
transition portion of the long service payment to the
                        extent
that—
(a)
the gratuity or benefit is attributable to the same years of
                            service as those for which the long service payment (including both the
                            pre-transition portion and post-transition portion of the payment) is
                            payable; and
(b)
in the case of a qualifying item specified under subsection
(1C
)(
a)
, (b) or (c)—the gratuity or benefit has not been
                            reduced under subsection (1B).
(1B)
The aggregate amount of the qualifying items specified under subsection
(1C
)(
a)
, (b) and (c) is to be reduced by the whole amount of
                        the
post-
transition portion of the long service payment to the extent
that—
(a)
the gratuity or benefit is attributable to the same years of
                            service as those for which the long service payment (including both the
                            pre-transition portion and post-transition portion of the payment) is
                            payable; and
(b)
the gratuity or benefit has not been reduced under subsection
                            (1A).
(1C)
The following items are qualifying items specified for the purposes of
                        subsections (1A) and (1B
)—
(a)
every one of the gratuities referred to in subsection
(1
)(
a
)(
i)
;
(b)
every one of the employer-funded ORS benefits referred to in
                            subsection
(1
)(
a
)(
ii)
that are employer-funded (specified)
                            ORS benefits;
(c)
every one of the employer-funded MPFS benefits referred to in
                            subsection
(1
)(
a
)(
iii)
that are employer-funded (voluntary)
                            MPFS benefits;
(d)
every one of the employer-funded ORS benefits referred to in
                            subsection
(1
)(
a
)(
ii)
that are employer-funded (basic
                            portion) exempt ORS benefits;
(e)
every one of the employer-funded MPFS benefits referred to in
                            subsection
(1
)(
a
)(
iii)
that are employer-funded (mandatory)
                            MPFS benefits.
(2)
Subsections (1A) and (1B) have effect even though the years of service
                        for which the long service payment (including both the pre-transition
                        portion and post-transition portion of the payment) was made exceed those to
                        which the gratuity or benefit is attributable.
31YA.
Long service payment to be reduced by amount of gratuities and
                            benefits on specified employee’s death
(1)
This section applies
if—
(a)
a specified employee has died;
(b)
as a result of the death, a person becomes entitled to payment of a
                            long service payment under
section 31RA
; and
(c)
any of the following conditions is
met—
(i)
because of the operation of the employee’s contract of
                                employment, one or more gratuities based on length of service have
                                been paid to the person in respect of the employee;
(ii)
because of the operation of that contract, one or more
                                employer-funded ORS benefits have been paid to the person in respect
                                of the employee;
(iii)
one or more employer-funded MPFS benefits are being held in one
                                or more mandatory provident fund schemes in respect of the employee,
                                or have been paid to or in respect of the employee.
(2)
The
pre-
transition portion of the long service payment is to be reduced
                        by the aggregate amount of the qualifying items specified under subsection
(4
)(
a)
, (b), (c), (d) and (e) to the extent that—
(a)
the gratuity or benefit relates to the employee’s years of service
                            for which the long service payment (including both the pre-transition
                            portion and post-transition portion of the payment) is payable;
                            and
(b)
in the case of a qualifying item specified under subsection
(4
)(
a)
, (b) or (c)—the gratuity or benefit has not been
                            used for a reduction under subsection (3).
(3)
The
post-
transition portion of the long service payment is to be reduced
                        by the aggregate amount of the qualifying items specified under subsection
(4
)(
a)
, (b) and (c) to the extent that—
(a)
the gratuity or benefit relates to the employee’s years of service
                            for which the long service payment (including both the pre-transition
                            portion and post-transition portion of the payment) is payable;
                            and
(b)
the gratuity or benefit has not been used for a reduction under
                            subsection (2).
(4)
The following items are qualifying items specified for the purposes of
                        subsections (2) and (3
)—
(a)
every one of the gratuities referred to in subsection
(1
)(
c
)(
i)
;
(b)
every one of the employer-funded ORS benefits referred to in
                            subsection
(1
)(
c
)(
ii)
that are employer-funded (specified)
                            ORS benefits;
(c)
every one of the employer-funded MPFS benefits referred to in
                            subsection
(1
)(
c
)(
iii)
that are employer-funded (voluntary)
                            MPFS benefits;
(d)
every one of the employer-funded ORS benefits referred to in
                            subsection
(1
)(
c
)(
ii)
that are employer-funded (basic
                            portion) exempt ORS benefits;
(e)
every one of the employer-funded MPFS benefits referred to in
                            subsection
(1
)(
c
)(
iii)
that are employer-funded (mandatory)
                            MPFS benefits.
31YB.
Gratuity or benefit to be reduced by amount of long service payment
                            on specified employee’s death
(1)
This section applies
if—
(a)
a specified employee has died;
(b)
any of the following conditions is met in relation to a
person—
(i)
as a result of the death, the person, because of the operation
                                of the employee’s contract of employment, becomes entitled to
                                payment of one or more gratuities based on length of
                                service;
(ii)
as a result of the death, the person, because of the operation
                                of that contract, becomes entitled to payment of one or more
                                employer-funded ORS benefits;
(iii)
as a result of the death, the person becomes entitled to
                                payment of one or more employer-funded MPFS benefits; and
(c)
a long service payment has been paid under
section 31RA
to the person in respect of the employee.
(2)
The aggregate amount of the qualifying items specified under subsection
(4
)(
a)
, (b), (c), (d) and (e) is to be reduced by the whole
                        amount of the
pre-
transition portion of the long service payment to the
                        extent
that—
(a)
the gratuity or benefit is attributable to the same years of
                            service as those for which the long service payment (including both the
                            pre-transition portion and post-transition portion of the payment) is
                            payable; and
(b)
in the case of a qualifying item specified under subsection
(4
)(
a)
, (b) or (c)—the gratuity or benefit has not been
                            reduced under subsection (3).
(3)
The aggregate amount of the qualifying items specified under subsection
(4
)(
a)
, (b) and (c) is to be reduced by the whole amount of
                        the
post-
transition portion of the long service payment to the extent
that—
(a)
the gratuity or benefit is attributable to the same years of
                            service as those for which the long service payment (including both the
                            pre-transition portion and post-transition portion of the payment) is
                            payable; and
(b)
the gratuity or benefit has not been reduced under subsection
                            (2).
(4)
The following items are qualifying items specified for the purposes of
                        subsections (2) and (3
)—
(a)
every one of the gratuities referred to in subsection
(1
)(
b
)(
i)
;
(b)
every one of the employer-funded ORS benefits referred to in
                            subsection
(1
)(
b
)(
ii)
that are employer-funded (specified)
                            ORS benefits;
(c)
every one of the employer-funded MPFS benefits referred to in
                            subsection
(1
)(
b
)(
iii)
that are employer-funded (voluntary)
                            MPFS benefits;
(d)
every one of the employer-funded ORS benefits referred to in
                            subsection
(1
)(
b
)(
ii)
that are employer-funded (basic
                            portion) exempt ORS benefits;
(e)
every one of the employer-funded MPFS benefits referred to in
                            subsection
(1
)(
b
)(
iii)
that are employer-funded (mandatory)
                            MPFS benefits.
(5)
Subsections (2) and (3) have effect even though the years of service
                        for which the long service payment (including both the pre-transition
                        portion and post-transition portion of the payment) was made exceed those to
                        which the gratuity or benefit is attributable.
31YC.
Certain persons’ entitlements to gratuities or benefits on specified
                            employee’s death
(1)
This section applies
if—
(a)
a specified employee has died;
(b)
as a result of the death, the employer is required to pay a long
                            service payment under
section 31RA
to a person (
Person
                                    A
); and
(c)
any of the following conditions is met in relation to another person
                                    (
Person B
)—
(i)
as a result of the death, Person B, because of the operation of
                                the employee’s contract of employment, becomes entitled to payment
                                of one or more gratuities based on length of service;
(ii)
as a result of the death, Person B, because of the operation of
                                that contract, becomes entitled to payment of one or more
                                employer-funded ORS benefits;
(iii)
as a result of the death, Person B becomes entitled to payment
                                of one or more employer-funded MPFS benefits.
(2)
A reference to a gratuity based on length of service, employer-funded
                        ORS benefit or employer-funded MPFS benefit in subsection
(1
)(
c)
is a reference to such a gratuity or benefit relating to the employee’s
                        years of service for which the long service payment is payable.
(3)
Person B is entitled to payment of any gratuities or benefits mentioned
                        in subsection
(1
)(
c)
only to the extent of the aggregate amount
                        of every one of such gratuities and benefits that would remain if such
                        gratuities and benefits were to be reduced under
section 31YB
that applies on the basis that Person B were entitled to payment of, and had
                        been paid, the amount of the long service payment.
(4)
Subsection (5) applies
if—
(a)
the employer has paid a long service payment mentioned in
                            subsection
(1
)(
b)
to Person A; and
(b)
either or both of the following conditions are
met—
(i)
as a result of the employee’s death, the administrator of an
                                occupational retirement scheme has paid an employer-funded ORS
                                benefit to Person B;
(ii)
as a result of the employee’s death, the approved trustee of a
                                mandatory provident fund scheme has paid an employer-funded MPFS
                                benefit to Person B.
(5)
Person B must repay the benefit to the administrator or trustee except
                        for an amount the payment of which Person B is entitled to under subsection
                        (3).
(6)
On being repaid the benefit, the administrator or trustee must pay it
                        to the employer concerned.”.