Section 2

Interpretation

釋義

Part I — Preliminary (導言)

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Statutory Text

(1) In this Ordinance, unless the context otherwise requires— alternative holiday ( 另定假日 ) means a holiday granted or to be granted under section 39(2) and (2A); annual leave ( 年假 ) means the annual leave provided for in Part VIIIA; 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 ; business ( 業務 ) includes a trade or profession and any like activity carried on by a person; Cap. 599 requirement ( 《第599章》規定 ) means a requirement set out in Part 1 of Schedule 12 that imposes a restriction on movement; 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; child ( 兒童 ) means a person under the age of 15 years; Commissioner ( 處長 ) means the Commissioner for Labour and includes a Deputy Commissioner for Labour and an Assistant Commissioner for Labour; confinement ( 分娩 ) means the delivery of a child; 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; domestic servant ( 家庭傭工 ) includes a garden servant, chauffeur and boat-boy and any other personal servant of a like class; 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; employer-funded exempt ORS benefit ( 僱主供款豁免職業退休計劃利益 )—see subsection (4); employer-funded non-exempt ORS benefit ( 僱主供款非豁免職業退休計劃利益 ), in relation to an employee, means an employer-funded ORS benefit of the employee that is not an employer-funded exempt ORS benefit; employer-funded ORS benefit ( 僱主供款職業退休計劃利益 ), in relation to an employee, means a benefit that is—

(a) payable under an occupational retirement scheme on the retirement, death, incapacity or termination of service of the employee; and

(b) attributable to a contribution made to such a scheme by the employer;

employer-funded (prescribed portion) exempt ORS benefit ( 僱主供款(訂明部分)豁免職業退休計劃利益 )—see subsection (5); employer-funded (specified) ORS benefit ( 僱主供款(指明)職業退休計劃利益 ), in relation to an employee, means—

(a) an employer-funded non-exempt ORS benefit of the employee; or

(b) an employer-funded (prescribed portion) exempt ORS benefit of the employee;

employer-funded (voluntary) MPFS benefit ( 僱主供款(自願性)強積金計劃權益 ), in relation to an employee, means any accrued benefits of the employee that are—

(a) held by the approved trustee of a mandatory provident fund scheme in respect of the employee; and

(b) attributable to a voluntary contribution (as defined by section 2(1) of the Mandatory Provident Fund Schemes Ordinance ( Cap. 485 )) made to such a scheme by the employer;

holiday ( 假日 ) means—

(a) a statutory holiday;

(b) an alternative holiday;

(d) a day on which an employee is required by section 39(4) to be granted a holiday;

holiday pay ( 假日薪酬 ) means the holiday pay provided for by section 40 ; 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;

(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;

(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;

Labour Tribunal ( 勞資審裁處 ) means the Labour Tribunal established by section 3 of the Labour Tribunal Ordinance ( Cap. 25 ); lock-out ( 閉廠 ) has the meaning assigned to it by section 2 of the Trade Unions Ordinance ( Cap. 332 ); 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 ; 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 ); 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; maternity leave pay ( 產假薪酬 ) means pay in respect of maternity leave payable to a female employee under section 14 ; 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 ); miscarriage ( 流產 ) means the expulsion of the products of conception which are incapable of survival after being born before 24 weeks of pregnancy; 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; 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; 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; paternity leave ( 侍產假 ) means the paternity leave provided for in Part IIIA; paternity leave pay ( 侍產假薪酬 ) means pay payable in respect of paternity leave; 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) ; registered Chinese medicine practitioner ( 註冊中醫 ) has the meaning assigned to it by section 2 of the Chinese Medicine Ordinance ( Cap. 549 ); registered dentist ( 註冊牙醫 ) has the same meaning as in section 2(1) of the Dentists Registration Ordinance ( Cap. 156 ); registered medical practitioner ( 註冊醫生 ) has the same meaning as in section 2 of the Medical Registration Ordinance ( Cap. 161 ); 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;

renewal ( 續訂 ) includes extension, and any reference to renewing a contract shall be construed accordingly; 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; severance payment ( 遣散費 ) means the severance payment payable by an employer to an employee under section 31B(1) ; sickness allowance ( 疾病津貼 ) means the sickness allowance provided for by section 33 ; sickness day ( 病假日 )—

(a) means a day on which an employee is absent from the employee’s work by reason of the employee being unfit for work on account of injury or sickness; and

(b) includes a day on which an employee is absent from the employee’s work by reason of the employee’s compliance with a Cap. 599 requirement;

specified employee ( 指明僱員 ) means an employee in relation to whom the conditions under section 31ZEA(2)(a) , (b) and (c) are met; spouse ( 配偶 ) means, in relation to a married employee, the person to whom the employee is lawfully married; statutory holiday ( 法定假日 ) means a holiday specified as a statutory holiday in section 39(1) ; strike ( 罷工 ) has the meaning assigned to it by section 2 of the Trade Unions Ordinance ( Cap. 332 ); substituted holiday ( 代替假日 ) means a holiday granted or to be granted under section 39(3) ; 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;

transition date ( 轉制日 ) means the date on which the Employment and Retirement Schemes Legislation (Offsetting Arrangement) (Amendment) Ordinance 2022 ( 4 of 2022 ) comes into operation ; 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—

(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;

(ca) any attendance allowance or attendance bonus which is of a gratuitous nature or which is payable only at the discretion of the employer;

(cb) any travelling allowance which is of a non-recurrent nature;

(cc) any travelling allowance payable to the employee to defray actual expenses incurred by him by the nature of his employment;

(cd) the value of any travelling concession;

(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;

(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; young person ( 青年 ) means a person who has attained the age of 15 years but not the age of 18 years.

(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;

(ba) any paternity leave pay under Part IIIA;

(ca) any long service payment under Part VB;

(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.

(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;

(ba) in relation to any paternity leave pay under Part IIIA—

(i) if paternity leave is taken in a period of consecutive days, the date on which that period begins; or

(ii) in any other case, the date on which paternity leave is taken;

(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.

(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.

(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

(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.

(4) For the purposes of this Ordinance, an employer-funded ORS benefit of an employee payable under an occupational retirement scheme is an employer-funded exempt ORS benefit of the employee if the employee—

(a) is exempt under section 4(3)(b) of the Mandatory Provident Fund Schemes Ordinance ( Cap. 485 ); or

(b) is, as a member of the scheme, a person in relation to whom an exemption from the operation of Part 3 of that Ordinance, given under section 5(1) of that Ordinance, has effect.

(5) For the purposes of this Ordinance, an employer-funded exempt ORS benefit of an employee is, to the extent that its amount exceeds the reference amount calculated in accordance with the following formula, an employer-funded (prescribed portion) exempt ORS benefit of the employee— A = B × C × 5% × 12

where—
A	means the reference amount;
B	means the employee’s final average monthly relevant income; and
C	means the number of the employee’s years (and pro rata for an incomplete year) of service to which the employer-funded exempt ORS benefit is attributable.

(6) In subsection (5)— final average monthly relevant income ( 最終每月平均有關入息 ), in relation to an employee—

(a) if the occupational retirement scheme under which the employer-funded exempt ORS benefit concerned is payable in respect of the employee is a relevant scheme (as defined by section 1(1) of Schedule 2 to the Mandatory Provident Fund Schemes (Exemption) Regulation ( Cap. 485 sub. leg. B ))—has the meaning given by that section; or

(b) in any other case—means the amount that is equivalent to the relevant income per month for the definition of final average monthly relevant income in that section that would be obtained by applying paragraph (a)(i) of that definition in relation to the employee on the basis that the employee were a member of a relevant scheme falling within paragraph (a) of that definition.

Editorial Note: Operation date: 1 May 2025.

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