Employment Disputes
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D. Holiday/annual leave/sick leave/maternity leave and their relevant payments

1. REST DAY

An employee who is employed under a continuous contract is entitled to not less than one rest day in every period of seven days. A rest day is defined as a continuous period of not less than 24 hours during which an employee is entitled to cease working. Rest days are not equivalent to statutory holidays. An employee employed under a continuous contract is entitled to have rest days AND statutory holidays.

Rest days are appointed by the employer. They can be granted on a regular or irregular basis. If the rest days are on regular basis, it is sufficient for the employer to inform the employee of the arrangements. If they are on an irregular basis, then the employer must inform the employee of the appointed rest days during the month before the beginning of the particular month.

An employer can substitute rest days with the consent of the employee, in which case the substitution must be within the same month before the original rest day or within 30 days after it. If a statutory holiday falls on a rest day, then it should be taken on the day following the rest day.

  1. Should employees receive salaries for their rest days?
  2. My boss ordered me to work this Sunday (which is my usual rest day). Can I reject his order?

2. STATUTORY HOLIDAYS

Employees, irrespective of their length of service, ar entitled to the following statutory holidays :

1.

The first day of January

2.

Lunar New Year's Day

3.

The second day of Lunar New Year

4.

the third day of Lunar New Year

5.

Ching Ming Festival

6.

Labour Day, being the first day of May

7.

Tuen Ng Festival

8.

Hong Kong Special Administrative Region Establishment Day, being the first day of July

9.

The day following the Chinese Mid-Autumn Festival

10.

Chung Yeung Festival

11.

National Day, being the first day of October

12.

Chinese Winter Solstice Festival or Christmas Day (at the option of the employer)


If employees are required to work on a statutory holiday, then their employers must give them an alternative holiday within 60 days before or after that statutory holiday with 48 hours' advance notice.

  1. Should employees be paid for their statutory holidays?
  2. Can I order my staff to work on statutory holidays by making substitute payments?

3. ANNUAL LEAVE

Employees are entitled to annual leave with pay after having been employed under continuous contracts for every 12 months. Employees' entitlement to paid annual leave increases progressively from 7 days to a maximum of 14 days according to length of service.

Annual leave pay is a sum equivalent to the normal wages that employees would have earned if they had worked during the period of annual leave.

For employees who are employed on piece rates or whose daily wages vary from day to day, the annual leave pay should be a sum equivalent to the average daily wages earned on the days that the employees worked during every complete wage period. The wage period should be a period of not less than 28 days and not more than 31 days immediately preceding the annual leave or the day on which the employment contract terminates.

(Note: Although wages cover contractual commission, the Court of Final Appeal has held in the case of Lisbeth Enterprises Limited v Mandy Luk that no commission is to be included in the calculation of holiday pay and annual leave pay unless the relevant commission is calculated on daily basis. However, there is a possibility that the relevant ordinance provision may be amended in future.)

Employers are under a statutory obligation by virtue of section 41G of the Employment Ordinance to keep annual leave records.

Offences and Penalties

Employers who fail to grant annual leave or pay annual leave pay to employees are liable to prosecution and, upon conviction, to a fine of $50,000.

4. SICK LEAVE

Employees can accumulate paid sickness days after having been employed under continuous contracts. Paid sickness days are accumulated at the rate of two paid sickness days for each completed month of employment during the first 12 months of employment, and four paid sickness days for each completed month of employment thereafter. Paid sickness days can be accumulated up to a maximum of 120 days.

A sickness day is a day on which an employee is absent from work by reason of being unfit due to injury or sickness. A paid sickness day is a sickness day on which an employee is entitled to be paid sickness allowance.

  1. How is sickness allowance calculated? When will I be entitled to sickness allowance?
  2. My boss fired me during my sick leave for which I had a valid medical certificate. Has he violated the law?

5. MATERNITY LEAVE

Female employees who are employed under continuous contracts immediately before the commencement of their maternity leave and having given a notice of pregnancy to their employers are entitled to the following periods of leave:

- a continuous period of 10 weeks' maternity leave;
- if confinement occurs later than the expected date of confinement, a further period equal to the number of days from the day after the expected date of confinement to the actual date of confinement;
- may enjoy an additional period of leave for not more than four weeks on the grounds of illness or disability due to the pregnancy or confinement.

When an employee is absent from work to attend medical examination in relation to her pregnancy, post confinement medical treatment or miscarriage, any day on which she is absent will be counted as a sickness day.

  1. My expected date of confinement is coming soon and I have served a notice of pregnancy to my boss. When can I commence my maternity leave?
  2. Should I receive salary during my maternity leave?
  3. One week after serving the notice of pregnancy, my employer fired me. Has he violated the law?
  4. Since I notified my boss of my pregnancy, he sometimes assigns heavy work to me. I think that he wants me to resign so he can avoid paying compensation or avoid giving maternity leave. Can he do that?
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