Labor law guide Hong Kong: annual leave and holidays
According to the Employment Ordinance of Hong Kong, all employees under a continuous contract are entitled to no less than one rest day over a seven-day period. A rest day is defined as a continuous period of at least 24 hours. During this period, the employee is entitled to fully abstain from work. In the event of an unforeseen emergency (such as a breakdown of equipment), the employer may request the assistance of an employee during a rest day.
Given such an occurrence, the employer must give the employee another full rest day (not merely for the period that the employee was on duty) within 30 days. The employer must notify the employee with the date of the rest day within 48 hours.
Choosing Rest Days
The employer is entitled to appoint the rest day around the needs of the company such as the company’s production schedule. Rest days may be regular or irregular.
Irregular Rest Days
The employer must inform the employee of the appointed rest days before the beginning of the month. The employer may give notification to the employees of the dates orally, in writing, or on a roster in a common area for employees.
Substituting Rest Days
With the consent of the employee, an employer may switch rest days in the event that the company desires the employee’s assistance during the arranged rest day. The new rest day must be within the same month or no less than 30 days after.
Fines for Failure to Provide Rest Day
If an employer fails to provide a rest day, it will, upon conviction, be subject to a fine of HK$50,000. If an employer provides a rest day, but compels the employee to work on the rest day without providing a substitute rest day, the employer will also be subject to a fine of HK$50,000.
Voluntary Work on Rest Days
An employee over the age of 18 is entitled to voluntarily work on rest day. Employers are prohibited from offering a financial incentive for the employee to work in lieu of a rest day.
Rest Day Compensation
An employer is not required to compensate the employee for rest days. This is to be negotiated between the employer and employee and written into the labor contract.
Holidays in Hong Kong
All employees are entitled to enjoy Hong Kong’s 12 statutory holidays per calendar year. The employee’s length of service has no bearing on this. Payment may not be made in lieu of holiday. A company that fails to abide by statutory holiday rules is liable for prosecution and, if convicted, a fine of HK$50,000.
If an employee has been under continuous contract for more than three months prior to the statutory holiday, he/she is entitled to regular payment for the holiday. The payment should be calculated as the average daily wage for the previous 12 months period (or however long the employee has been under continuous contract, if less than 12 months). In calculating the average daily wage, any period during which the employee was not paid full wages (such as rest days, leave, sickness, etc.) must be excluded. For all intents and purposes, this is treated as regular wages and, as such, must be paid on the same schedule.
Coincidence of Rest Day and Statutory Holiday
If a rest day coincides with a statutory holiday, the employee is entitled a rest day immediately following the statutory holiday. The employer can also make an arrangement for a substitute of either the rest day or holiday.
Work During Statutory Holiday
An employer is permitted to require an employee to work during a holiday. However, the employer must provide an alternative holiday either 60 days before or after the statutory holiday. If the alternative holiday is before the statutory holiday, the employee must give notice to the employee no less than 48 hours before the alternative holiday. If the alternative holiday is after the statutory holiday, the employer must give notice of the date of the new holiday no less than 48 hours before the statutory holiday.
- The first day of January
- Lunar New Year’s Day
- The second day of Lunar New Year
- The third day of Lunar New Year
- Ching Ming Festival
- Labour Day, being the first day of May
- Tuen Ng Festival
- Hong Kong Special Administrative Region Establishment Day, being the first day of July
- The day following the Chinese Mid-Autumn Festival
- Chung Yeung Festival
- National Day, being the first day of October
- Chinese Winter Solstice Festival or Christmas Day (at the option of the employer)
Hong Kong Annual Leave
All employees under continuous contract for more than 12 months are entitled to annual leave. The employee must take his/her paid annual leave within the following period of 12 months. The paid annual leave granted must be a continuous period of time. The employee may enjoy the leave given non-continuously though a minimum of 7 days must be taken at one time.
Annual Leave Compensation
The daily rate of compensation for annual leave should be calculated as the average daily wage for the 12-month period preceding the dates of annual leave. In calculating the average daily wage, any period during which the employee was not paid full wages (such as rest days, leave, sickness, etc.) must be excluded. Similar to statutory holiday, an employer may not “buy out” the employee’s leave, that is, the employer may not offer compensation in lieu of leave.
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