Hong Kong Ordinances

EMPLOYMENT ORDINANCE - SECT 14

Payment for maternity leave

(Past version on 30/06/1997).

(1) A female employee shall not be entitled to wages in respect of the period
of her maternity leave except as provided in this section or as provided in
her contract of employment if such contract provides for paid maternity leave
on terms better than in this section.

(2) An employer shall pay a female employee maternity leave pay for the period
of maternity leave taken by her and to which she is entitled under
section 12(2)(a) if she— (Amended 73 of 1997 s. 6)

   (a)  has been employed by that employer under a continuous contract for a
        period of not less than 40 weeks immediately before the date of her
        commencement of maternity leave as determined under section 12AA;
        (Amended 5 of 1995 s. 4; 73 of 1997 s. 6)

   (b)  has given notice under section 12(4) or (5);

   (c)  has complied with any requirement by her employer under section  12
        (6) or (7); and

   (d)  (Repealed 73 of 1997 s. 6)

(3) For the purposes of subsections (3A), (3B) and (3C), “wages” (工 資)
includes any sum paid by an employer in respect of—

   (a)  a day of maternity 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 her
        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). (Replaced 7 of 2007 s. 6)

(3A) Maternity leave pay payable under this section is to be calculated at
four-fifths of the daily average of the wages earned by the female employee
during—

   (a)  the period of 12 months immediately before the date of commencement of
        her maternity leave; or

   (b)  if the employee has been employed by the employer concerned for a
        period shorter than 12 months immediately before the date of
        commencement of her maternity leave, the shorter period, but no
        maternity leave pay is payable in respect of a day on which the female
        employee would not have worked had she not been on maternity leave and
        for which no wages would normally be payable by the employer. (Added 7
        of 2007 s. 6)

(3B) In calculating the daily average of the wages earned by a female employee
during the period of 12 months or the shorter period—

   (a)  any period therein for which the employee was not paid her wages or
        full wages by reason of—

        (i)    any maternity leave, rest day, sickness day, holiday or annual 
               leave taken by the employee;

        (ii)   any leave taken by the employee with the agreement of her
               employer;

        (iii)  her not being provided by her employer with work on any normal
               working day; or

        (iv)   her 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 her for the period referred to in paragraph

   (a)  , are to be disregarded. (Added 7 of 2007 s. 6)

(3C) For the avoidance of doubt, if the amount of the wages paid to a female
employee in respect of a day specified in subsection (3) 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

(3B). (Added 7 of 2007 s. 6)

(3D) Despite subsection (3A), if for any reason it is impracticable to
calculate the daily average of the wages earned by a female 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 date of
commencement of the employee’s maternity leave, 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 date of commencement of the employee’s maternity leave. (Added 7
of 2007 s. 6)

(4) Maternity leave pay under this section shall be paid by an employer on the
same day and in the same manner as he would have been required to pay wages to
the female employee if she had not taken maternity leave and had continued in
his employ.

(5) A female employee who, without the prior permission of her employer, works
for another employer during any period of maternity leave under
section 12(2)(a) shall forfeit her entitlement to maternity leave  pay during
that period of maternity leave. (Amended 73 of 1997 s. 6)

(6) (Repealed 73 of 1997 s. 6)

(7) If, pursuant to the terms of her contract of employment or any other
agreement or for any other reason, a female employee is paid by her employer a
sum of money in respect of any period of her maternity leave, the
maternity leave pay payable to the employee in respect of that period is to be
reduced by that sum. (Added 7 of 2007 s. 6) (Replaced 22 of 1981 s. 4)
“wages” (工資)