Johnny was employed as a sales executive by a telecommunications company since May 2001. In October 2001, the company launched a number of special promotional campaigns and Johnny was required to work on three statutory holidays, namely, the National Day, the day following the Chinese Mid-Autumn Festival and the Chung Yeung Festival.
Johnny was very busy since then and he almost forgot about his statutory holidays. In March 2002, Johnny realized that neither compensation leave nor pay had been granted for the three statutory holidays. He asked his boss, Mr. Lo, for compensation leave or payment. Mr. Lo said that Johnny worked for the company voluntarily and the company was not obliged to compensate him with anything.
Was Johnny entitled to claim the outstanding statutory holidays?
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Under the Employment Ordinance, an employee is entitled to 12 statutory holidays irrespective of his length of service:
- 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 (the first day of May)
- Tuen Ng Festival
- HKSAR Establishment Day (the first day of July)
- The day following the Chinese Mid-Autumn Festival
- National Day (the first day of October)
- Chung Yeung Festival
- Chinese Winter Solstice Festival or Christmas Day (at the option of the employer)
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An employee, having been employed under a continuous contract for not less than three months, is entitled to statutory holiday pay, which is a sum equivalent to the normal wages, which the employee would have earned for a full working day.
(Editor's note: An employee who has been employed for less than three month, is entitled to unpaid statutory leave, while one employed for three months or more under a continuous contract, is entitled to paid statutory leave.)
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If an employee is required to work on a statutory holiday, 48 hours' prior notice must be given. His employer must also arrange an alternative holiday within 60 days before or after the statutory holiday. If the employer and employee agree, any day within 30 days of the statutory or alternative holiday may be taken by the employee as a substitute holiday.
(Editor's note: If the employee did not get a chance to take the alternative holiday, it will be replaced by the substitute holiday.)
| ||An employer who fails to grant statutory holidays, alternative holidays or substitute holidays, or fails to pay holiday pay to an employee is liable to prosecution and, upon conviction, to a fine of $50,000. |
| ||It is also worth noting that, under the law, an employer must not make any form of payment to an employee in lieu of grant- ing him a statutory holiday. The above case only serves as an illustration of the Employment Ordinance provisions on statutory holidays. The Employment Ordinance, however, remains the sole authority for the provisions explained above and in case of dispute, the final decision rests with the court. |
The above case only serves as an illustration of the Employment Ordinance provisions on statutory holidays. The Employment Ordinance, however, remains the sole authority for the provisions explained above and in case of dispute, the final decision rests with the court.
|Q & A about the Employment Ordinance|
|Q1 ||Can an employer compel an employee to work 7 days in a week without granting him any rest days?|
|A1 ||No. An employee employed under a continuous contract is entitled to one rest day in every period of seven days. |
Except in the event of a breakdown of machinery or plant or in any other unforeseen emergency, an employer who compels an employee to work on a rest day is in breach of the law. Under such exceptional circumstances, the employer should substitute another rest day within 30 days for any rest day on which the employee is required to work.
|Q2 ||Can an employee work voluntarily on rest days? |
|A2 ||Yes. An employee, except a young person under the age of 18 employed in the industrial sector, may work voluntarily on a rest day. |
|Q3 ||Should rest days be with pay or without pay?|
|A3 ||This term is to be agreed between an employer and an employee. |
|Q4 ||Can an employer ask an employee to take his rest days on statutory holidays?|
|A4 ||No. An employee shall be granted rest days in addition to statutory holidays. |
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Source : Labour Department