Holiday & Leave

When a statutory holiday falls on a rest day

by Jennifer Van Dale, Solicitor, Baker & McKenzie

Article exclusively contributed by Baker & McKenzie

David has been working for a large multinational for almost two years. His contract and the employee handbook both state that Sunday is the company's official rest day but, like most other employees, he also has Saturdays off, as well as all statutory holidays.

Towards the end of 2004, David noticed that Christmas Day that year and New Year's Day 2005 fell on Saturdays. Since he didn't normally work on Saturdays, he asked his employer for another day off instead, which raised the question of what he was entitled to.

According to the Employment Ordinance (EO), if a statutory holiday falls on an employee's rest day, a holiday should be granted on the next working day. The EO also says that every employee is entitled to at least one rest day in every seven days and to 12 designated statutory holidays (see box).

However, the EO does not address the issue of an employee having more than one day off per week. Until recently, it could be argued that when an employee had both Saturday and Sunday off (or any other two days), both would be considered statutory rest days if the employer had not specifically designated one in the contract of employment or elsewhere. In those circumstances, if either rest day coincided with a statutory holiday, employees might be entitled to an alternative holiday on the next working day, but the position was unclear.

The Court of Appeal has, though, clarified the situation in the case of Tam Wai Mei v Cathay Pacific Airways Limited (2005). The employee involved had two days off in every seven, but was not granted any additional time off when rostered to work on statutory holidays. She argued that this breached the provisions of the EO, which entitled employees to an alternative holiday in such circumstances. The Labour Tribunal and the Court of First Instance both agreed and found that if an employee had two days off per week, both should be considered statutory rest days. This would mean that the employer should grant an additional day off when an employee worked on a statutory holiday.

However, the Court of Appeal disagreed and held that a regular day off need not be considered a statutory rest day. As a result, when an employee has more than one day off per week and is required to work on a statutory holiday, one of the days off can be substituted for the statutory holiday. The employer does not need to specify which days off each month are statutory rest days and which are substituted holidays, but should inform the employee about which days can be taken.

To avoid any doubt, it is best to set out terms and conditions unambiguously in the contract of employment. In David's case, the contract specifically stated that Sunday was his only rest day. Even though he normally had Saturday off as well, the terms of the contract would prevail and Saturday would not be considered a rest day. Since Christmas and New Year's Day fell on a Saturday, he would not, under the later ruling, be entitled to an alternative holiday.

Hong Kong's 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. the first day of May
7. Tuen Ng Festival
8. the first day of July
9. the day following Chinese Mid-Autumn Festival
10. Chung Yeung Festival
11. the first day of October
12. Chinese Winter Solstice Festival or Christmas Day (at the employer's option)

Q&A on rest days and statutory holidays
Q1 How do I know which day is my rest day?
A1 Employers must appoint rest days for all staff, although these may differ, and should do one of the following:
(a) inform each employee orally or in writing of applicable rest days at the start of each month
(b) post a roster showing appointed rest days for each employee in a conspicuous place within the place of employment; or
(c) appoint fixed rest days (for example, every Sunday).

Q2 What can I do if my employer has not specified any rest days?
A2 An employer who does not inform employees about rest days is liable to a fine of HK$10,000. If the employer does not grant rest days, the fine is HK$50,000. If an employee usually has the same day off each week, in most cases that will be considered the statutory rest day.

Q3 My contract specifies that Sunday and Monday are my rest days. Am I entitled to an alternative holiday when a public holiday falls on my rest day?
A3 The provisions of the Employment Ordinance requiring employers to grant an alternative holiday apply to statutory holidays only. Public holidays include Boxing Day and Easter Monday. Banks, educational establishments, public offices and most government offices in Hong Kong must observe them. However, granting public holidays in other sectors is a matter of contract between employer and employee. Therefore, when a public holiday falls on an employee's rest day, there is no statutory entitlement to an alternative day off.

Taken from Career Times 28 July 2006

(Last review date: 23 August 2013)

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Disclaimer: The opinions expressed in this article are those of the contributor

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