Hong Kong Ordinances

EMPLOYMENT ORDINANCE - SECT 2

Interpretation

(Past version on 25/01/2006).
(Past version on 01/12/2000).
(Past version on 12/12/1997).
(Past version on 30/06/1997).

(1) In this Ordinance, unless the context otherwise requires- (Amended 48 of
1984 s. 2)

"alternative holiday" (另定假日) means a holiday granted or to be granted
under section 39(2) and (2A); (Added 39 of 1973 s. 2. Amended 137 of 1997 s.
2)

"annual leave" (年假) means the annual leave provided for in Part VIIIA;
(Added 53 of 1977 s. 2)

"annual leave pay" (年假薪酬) means the annual leave pay required by this
Ordinance to be paid in respect of a period of annual leave and any sum
required to be paid under section 41D; (Added 53 of 1977 s. 2)

"business" (業務) includes a trade or profession and any like activity
carried on by a person; (Added 76 of 1985 s. 2)

"cease" (停止), in relation to Part VA, Part VB, the Third Schedule and the
Sixth Schedule, means cease either permanently or temporarily and from
whatsoever cause, and "diminish" (縮減) has a corresponding meaning; (Added
76 of 1985 s. 2)

"child" (兒童) means a person under the age of 15 years; (Replaced 41 of
1990 s. 2)

"Commissioner" (處長) means the Commissioner for Labour and includes a
Deputy Commissioner for Labour and an Assistant Commissioner for Labour;
(Amended L.N. 142 of 1974; 61 of 1993 s. 2)

"confinement" (分娩) means the delivery of a child; (Added 5 of 1970 s. 3)

"contract of employment" (僱傭合約) means any agreement, whether in
writing or oral, express or implied, whereby one person agrees to employ
another and that other agrees to serve his employer as an employee and also a
contract of apprenticeship;

"dangerous drug" (危險藥物) has the meaning assigned to it in the
Dangerous  Drugs Ordinance ( Cap 134);

"Director" (署長) means the Director of Health; (Added 39 of 1973 s. 2.
Amended L.N. 76 of 1989)

"domestic servant" (家庭傭工) includes a garden servant, chauffeur and
boat-boy and any other personal servant of a like class; (Added 76 of 1985 s.
2)

"employee" (僱員) means an employee to whom, by virtue of section 4, this
Ordinance applies;

"employer" (僱主) means any person who has entered into a contract of 
employment to employ any other person as an employee and the duly authorized
agent, manager or factor of such first mentioned person;

"holiday" (假日) means-

   (a)  a statutory holiday;

   (b)  an alternative holiday;

   (c)  a substituted holiday; or

   (d)  a day on which an employee is required by section 39(4) to be granted
        a holiday; (Added 39 of 1973 s. 2. Amended 137 of 1997 s. 2)

"holiday pay" (假日薪酬) means the holiday pay provided for by section 40;
(Added 39 of 1973 s. 2)

"issue" (後嗣) means a child whether under the age of majority or not of a
deceased employee and-

   (a)  includes a step-child;

   (b)  includes a child adopted by the employee, but (subject to paragraph
        (ba)) does not include a child of the employee adopted by another
        person; (Amended 28 of 2004 s. 35)

   (ba) includes a child of the employee adopted by another person under an
        adoption order granted under paragraph (c) of section 5(1) of the
        Adoption Ordinance ( Cap 290) where the employee is the parent
        referred to in that paragraph; (Added 28 of 2004 s. 35)

   (c)  does not include an illegitimate child; and

   (d)  where polygamy lawfully subsists, does not include a child who is not
        an adopted child of the employee unless his mother was, at the time of
        his birth, the employee's principal wife-

        (i)    in case the relevant marriage or, where appropriate, each such
               marriage constitutes a customary marriage for the purposes of
               the Marriage  Reform Ordinance ( Cap 178), according to Chinese
               law and custom; or

        (ii)   in any other case, according to the law which, as regards the
               relevant marriage or marriages, was the proper personal law of
               the employee; (Added 52 of 1988 s. 2)

"Labour Tribunal" (勞資裁處) means the Labour Tribunal established by
section  3 of the Labour Tribunal Ordinance ( Cap 25); (Added 76 of 1985 s. 2)

"lock-out" (閉廠) has the meaning assigned to it by section 2 of the Trade 
Unions Ordinance ( Cap 332); (Added 76 of 1985 s. 2)

"long service payment" (長期服務金) means the long service payment
payable by an employer to an employee under section 31R or to a person
entitled to such payment under section 31RA; (Added 76 of 1985 s. 2. Amended
41 of 1990 s. 2)

"mandatory provident fund scheme" (強制性公積金計劃) means a provident
fund scheme registered under the Mandatory Provident Fund Schemes Ordinance (
Cap  485); (Added 4 of 1998 s. 5)

"maternity leave" (產假) means absence from work, in accordance with the
provisions of Part III, by a female employee because of her pregnancy or
confinement; (Added 5 of 1970 s. 3)

"maternity leave pay" (產假薪酬) means pay in respect of maternity leave 
payable to a female employee under section 14; (Added 22 of 1981 s. 2)

"Minor Employment Claims Adjudication Board" (小額薪酬索償仲裁處)
means the Minor  Employment Claims Adjudication Board established by section 3
of the Minor  Employment Claims Adjudication Board Ordinance ( Cap 453);
(Added 61 of 1994 s. 49)

"miscarriage" (流產) means the expulsion of the products of conception which
are incapable of survival after being born before 28 weeks of pregnancy;
(Added 22 of 1981 s. 2)

"occupational retirement scheme" (職業退休計劃) means a scheme or
arrangement under which benefits, based on length of service, are payable in
respect of employees on retirement, death, incapacity or termination of
service, but does not include a mandatory provident fund scheme; (Added 4 of
1998 s. 5)

"outworker" (外發工) means a person to whom articles or materials are, for
payment or reward, given out to be made up, cleaned, washed, altered,
ornamented, finished or repaired, or adapted for sale, in his own home or on
other premises not under the control or management of the person who gave out
the articles or materials; (Added 76 of 1985 s. 2)

"paid sickness day" (有薪病假日) means a sickness day in respect of which
an employee is entitled to be paid sickness allowance; (Added 39 of 1973 s. 2)

"recognized scheme of medical treatment" (認可醫療計劃) means a scheme
of medical treatment operated by an employer and approved by the Director for
the purposes of this Ordinance under section 34(1); (Added 39 of 1973 s. 2)

"registered Chinese medicine practitioner" (註冊中醫) has the meaning
assigned to it by section 2 of the Chinese Medicine Ordinance ( Cap 549);
(Added 16 of 2006 s. 2)

"registered dentist" (註冊牙醫) has the same meaning as in section 2(1) of
the Dentists Registration Ordinance ( Cap 156); (Added 5 of 1995 s. 2)

"registered medical practitioner" (註冊醫生) has the same meaning as in
section 2 of the Medical Registration Ordinance ( Cap 161); (Added 61 of 1993
s. 2)

"relevant date" (有關日期), in relation to the termination of employment
of an employee, means-

   (a)  where the employee's contract of employment is terminated by notice in
        accordance with section 6, the date on which that notice expires;

   (b)  where the employee's contract of employment is terminated by payment
        in lieu of notice in accordance with section 7, the date up to which
        such wages are calculated;

   (c)  where the employee terminates his contract of employment without
        notice or payment in lieu in accordance with section 10, the date on
        which termination takes effect;

   (d)  where the employee is employed under a contract for a fixed term and
        that term expires, the date on which that term expires;

   (e)  where a continuous contract of employment specifies an age of
        retirement and the employee retires at that age, the date of
        retirement;

   (f)  where the employee dies, the date of his death; and

   (g)  where the employee's contract of employment is terminated other than
        in accordance with the provisions of this Ordinance, the date of
        termination; (Replaced 52 of 1988 s. 2)

"relevant mandatory provident fund scheme benefit"
(有關強制性公積金計劃權益), in relation to an employee, means the
accrued benefits of the employee held by the approved trustee of a
mandatory provident fund scheme in respect of the employee, but does not
include any part of the benefit that is attributable to the contributions paid
to the scheme by the employee; (Added 4 of 1998 s. 5)

"relevant occupational retirement scheme benefit"
(有關職業退休計劃利益), in relation to an employee, means a benefit
payable under an occupational  retirement scheme on the retirement, death,
incapacity or termination of service of the employee, but does not include any
part of the benefit that is attributable to the contributions paid to the
scheme by the employee; (Added 4 of 1998 s. 5)

"renewal" (續訂) includes extension, and any reference to renewing a
contract shall be construed accordingly; (Added 76 of 1985 s. 2)

"rest day" (休息日) means a continuous period of not less than 24 hours
during which an employee is entitled under Part IV to abstain from working for
his employer; (Added 23 of 1970 s. 2. Amended 71 of 1976 s. 2)

"severance payment" (遣散費) means the severance payment payable by an
employer to an employee under section 31B(1); (Added 76 of 1985 s. 2)

"sickness allowance" (疾病津貼) means the sickness allowance provided for
by section 33; (Added 39 of 1973 s. 2)

"sickness day" (病假日) means a day on which an employee is absent from his
work by reason of his being unfit therefor on account of injury or sickness;
(Added 39 of 1973 s. 2)

"spouse" (配偶) means, in relation to a married employee, the person to whom
the employee is lawfully married; (Added 52 of 1988 s. 2)

"statutory holiday" (法定假日) means a holiday specified as a statutory 
holiday in section 39(1); (Added 39 of 1973 s. 2. Amended 71 of 1976 s. 2; 137
of 1997 s. 2)

"strike" (罷工) has the meaning assigned to it by section 2 of the Trade 
Unions Ordinance ( Cap 332); (Added 76 of 1985 s. 2)

"substituted holiday" (代替假日) means a holiday granted or to be granted
under section 39(3); (Added 39 of 1973 s. 2. Amended 137 of 1997 s. 2)

"tips and service charges" (小費及服務費), in relation to wages, means
sums of money received, directly or indirectly, by an employee in the course
of and in connection with his employment which are-

   (a)  paid or derived from payments made by persons other than the employer;
        and

   (b)  recognized by the employer as part of the employee's wages; (Added 48
        of 1984 s. 2)

"wage period" (工資期) means the period in respect of which wages are
payable under a contract of employment or under section 22;

"wages" (工資) subject to subsections (2) and (3), means all remuneration,
earnings, allowances including travelling allowances and attendance
allowances, attendance bonus, commission, overtime pay, tips and service 
charges, however designated or calculated, capable of being expressed in terms
of money, payable to an employee in respect of work done or to be done under
his contract of employment, but does not include- (Amended 48 of 1984 s. 2; 76
of 1985 s. 2; 74 of 1997 s. 3)

   (a)  the value of any accommodation, education, food, fuel, light, medical
        care or water provided by the employer;

   (b)  any contribution paid by the employer on his own account to any
        retirement scheme; (Amended 41 of 1990 s. 2)

   (c)  any commission which is of a gratuitous nature or which is payable
        only at the discretion of the employer; (Replaced 74 of 1997 s. 3)

   (ca) any attendance allowance or attendance bonus which is of a gratuitous
        nature or which is payable only at the discretion of the employer;
        (Added 74 of 1997 s. 3)

   (cb) any travelling allowance which is of a non-recurrent nature; (Added 74
        of 1997 s. 3)

   (cc) any travelling allowance payable to the employee to defray actual
        expenses incurred by him by the nature of his employment; (Added 74 of
        1997 s. 3)

   (cd) the value of any travelling concession; (Added 74 of 1997 s. 3)

   (d)  any sum payable to the employee to defray special expenses incurred by
        him by the nature of his employment;

   (da) any end of year payment, or any proportion thereof, which is payable
        under Part IIA; (Added 48 of 1984 s. 2)

   (e)  any gratuity payable on completion or termination of a contract 
        of employment; or

   (f)  any annual bonus, or any proportion thereof, which is of a gratuitous
        nature or which is payable only at the discretion of the employer;

"week" (星期), for the purposes of section 11 and Parts VA and VB, means the
period between midnight on Saturday night and midnight on the succeeding
Saturday night; (Added 76 of 1985 s. 2. Amended 41 of 1990 s. 2)

"young person" (青年) means a person who has attained the age of 15 years
but not the age of 18 years. (Replaced 41 of 1990 s. 2) (Amended 4 of 1998 s.
5)

(2) No account of overtime pay shall be taken in calculating the wages of an
employee for the purpose of-

   (a)  any end of year payment under Part IIA;

   (b)  any maternity leave pay under Part III;

   (c)  any severance payment under Part VA;

   (ca) any long service payment under Part VB; (Added 76 of 1985 s. 2)

   (d)  any sickness allowance under Part VII;

   (e)  any holiday pay under Part VIII; or

   (f)  any annual leave pay under Part VIIIA, unless the overtime pay is of a
        constant character or the monthly average of the overtime pay over a
        period of 12 months (or if not applicable, such shorter period of
        employment) immediately preceding the respective dates specified in
        subsections (2A) and (2B) is equivalent to or exceeds 20% of his
        average monthly wages during the same period. (Added 48 of 1984 s. 2.
        Amended 74 of 1997 s. 3)

(2A) In the calculation of the monthly average of the overtime pay under
subsection (2), the date specified for the purpose of that subsection is-

   (a)  in relation to any end of year payment under Part IIA, the expiry date
        of the payment period;

   (b)  in relation to any maternity leave pay under Part III, the
        commencement date of maternity leave;

   (c)  in relation to any severance payment under Part VA and any long 
        service payment under Part VB-

        (i)    subject to subparagraph (ii), the relevant date;

        (ii)   where the employee's contract of employment is terminated by
               payment in lieu of notice in accordance with section 7, the
               date on which the termination takes effect;

   (d)  in relation to any sickness allowance under Part VII, the first
        sickness day;

   (e)  in relation to any holiday pay under Part VIII, the first day of the
        holiday; and

   (f)  in relation to any annual leave pay under Part VIIIA, the first day of
        the annual leave. (Added 74 of 1997 s. 3)

(2B) Notwithstanding anything contained in subsection (2A), the date specified
for the purpose of subsection (2) in relation to any termination of employment
is-

   (a)  subject to paragraph (b), the relevant date;

   (b)  where the employee's contract of employment is terminated by payment
        in lieu of notice in accordance with section 7, the date on which the
        termination takes effect. (Added 74 of 1997 s. 3)

(3) Where an employee who has been employed under a continuous  contract-

   (a)  is dismissed; or

   (b)  is laid off within the meaning of section 31E; or

   (c)  terminates his contract of employment in circumstances specified in
        section 10(aa) or 31R(1)(b); or

   (d)  dies in circumstances specified in section 31RA(1), and for any period
        of that contract he had not been paid his wages, or his full wages, by
        reason of any leave taken by him in accordance with the provisions of
        this Ordinance or the Employees' Compensation Ordinance ( Cap  282) or
        with the agreement of his employer, or by reason of his not being
        provided by his employer with work on any normal working day, then the
        employee shall be deemed, for the purposes of Parts VA and VB and
        notwithstanding any other provision of this Ordinance, to have been
        paid, for that period, his full wages under, and at the frequency
        required by, that contract as if he had continued in the normal course
        in the employment to which that contract relates, and any calculation
        under section 31G or 31V shall be made accordingly. (Replaced 62 of
        1992 s. 2)

"alternative holiday" (另定假日)

"annual leave" (年假)

"annual leave pay" (年假薪酬)

"business" (業務)

"cease" (停止)

"diminish" (縮減)

"child" (兒童)

"Commissioner" (處長)

"confinement" (分娩)

"contract of employment" (僱傭合約)

"dangerous drug" (危險藥物)

"Director" (署長)

"domestic servant" (家庭傭工)

"employee" (僱員)

"employer" (僱主)

"holiday" (假日)

"holiday pay" (假日薪酬)

"issue" (後嗣)

"Labour Tribunal" (勞資裁處)

"lock-out" (閉廠)

"long service payment" (長期服務金)

"mandatory provident fund scheme" (強制性公積金計劃)

"maternity leave" (產假)

"maternity leave pay" (產假薪酬)

"Minor Employment Claims Adjudication Board" (小額薪酬索償仲裁處)

"miscarriage" (流產)

"occupational retirement scheme" (職業退休計劃)

"outworker" (外發工)

"paid sickness day" (有薪病假日)

"recognized scheme of medical treatment" (認可醫療計劃)

"registered Chinese medicine practitioner" (註冊中醫)

"registered dentist" (註冊牙醫)

"registered medical practitioner" (註冊醫生)

"relevant date" (有關日期)

"relevant mandatory provident fund scheme benefit"
(有關強制性公積金計劃權益)

"relevant occupational retirement scheme benefit"
(有關職業退休計劃利益)

"renewal" (續訂)

"rest day" (休息日)

"severance payment" (遣散費)

"sickness allowance" (疾病津貼)

"sickness day" (病假日)

"spouse" (配偶)

"statutory holiday" (法定假日)

"strike" (罷工)

"substituted holiday" (代替假日)

"tips and service charges" (小費及服務費)

"wage period" (工資期)

"wages" (工資)

"week" (星期)

"young person" (青年)