Hong Kong Ordinances

OCCUPATIONAL RETIREMENT SCHEMES ORDINANCE - SECT 70A

Certain amounts relating to severance payments and long service payments to be paid from vested benefits

(1) If-

   (a)  an employer has paid to or in respect of an employee a severance
        payment or long service payment in accordance with the
        Employment Ordinance ( Cap 57), or a part of such a payment; and

   (b)  vested benefits are held in an occupational retirement scheme in
        respect of the employee; and

   (c)  a part of those benefits is attributable to contributions paid to the
        scheme by the employer in accordance with this Ordinance, the employer
        may make an application in writing to the administrator of the scheme
        for payment of an amount under subsection (2).

(2) As soon as practicable after receiving an application under subsection (1)
and on being satisfied as to the employer's entitlement to a payment under
this subsection, the administrator of the occupational  retirement scheme
concerned must-

   (a)  if the severance payment or long service payment paid to the employee
        is not more than the amount of the part of the employee's vested 
        benefits that is attributable to the employer's contributions, pay to
        the employer from those benefits an amount equal to the amount of that
        severance payment or long service payment; or

   (b)  if that severance payment or long service payment is more than the
        amount of the part of the employee's vested benefits that is
        attributable to the employer's contributions, pay to the employer from
        those vested benefits an amount equal to the amount of that part. This
        subsection is subject to subsection (5).

(3) If-

   (a)  an employer has not paid the whole of a severance payment or long
        service payment to or in respect of an employee as required by the
        Employment Ordinance ( Cap 57); and

   (b)  vested benefits are held in an occupational retirement scheme in
        respect of the employee; and

   (c)  a part of those benefits is attributable to contributions paid to the
        scheme by the employer in accordance with this Ordinance, an
        application may be made in writing by or in respect of the employee to
        the administrator of the scheme for payment of an amount under
        subsection

(4).

(4) As soon as practicable after receiving an application under subsection
(3), the administrator of the occupational retirement scheme concerned must,
on being satisfied that an employer has not paid the whole of a severance
payment or long service payment required to be paid to or in respect of the
employee concerned-

   (a)  if the amount of the severance payment or long service payment that
        has not been paid to the employee is not more than the amount of the
        part of the employee's vested benefits attributable to the employer's
        contributions, pay to or in respect of the employee from those vested 
        benefits an amount equal to the amount of that severance payment or
        long service payment to the extent that it has not been paid; or

   (b)  if the amount of the severance payment or long service payment that
        has not been paid is more than the amount of the part of the
        employee's vested benefits attributable to the employer's
        contributions, pay to or in respect of the employee from those
        benefits an amount equal to the amount of that part.

(5) If-

   (a)  only a part of a severance payment or long service payment has been
        paid to or in respect of an employee; and

   (b)  the amount of the employee's vested benefits attributable to the
        employer's contributions is more than the unpaid part of the severance
        payment or long service payment but less than the total payment that
        is required to be made, the employer is entitled to be paid under
        subsection (2) the amount of those vested benefits only to the extent
        that they exceed the unpaid part of the severance payment or long
        service payment.

(6) If-

   (a)  a change has occurred (whether by virtue of a sale or other
        disposition or by operation of law) in the ownership of a business in
        which a person is employed, or in a part of such a business, and
        either-

        (i)    the person's contract of employment (with the substitution of
               the new owner of the business for the previous owner) is
               renewed by that new owner; or

        (ii)   the person is re-engaged by that new owner under a new contract
               of employment; or

   (b)  a person is taken into the employment of an associated company of
        another company by which the person was employed immediately before
        the person was taken into that employment, this section applies to a
        severance payment or long service payment, or a contribution, paid by
        the previous owner as if it had been paid by the new owner or the
        associated company. This subsection has effect whether or not the
        previous owner may have terminated the employee's contract in
        accordance with section 6 or 7 of the Employment Ordinance ( Cap 57).

(7) For the purposes of subsection (6), 2 companies are taken to be associated
companies if one is the subsidiary of the other, or both are subsidiaries of a
further company.

(8) This section also applies, with any necessary modifications, to an
occupational retirement scheme within the meaning of the Employment  Ordinance
( Cap 57) that is not an occupational retirement scheme within the meaning of
this Ordinance. (Added 4 of 1998 s. 4)