Introduction
If you are an employer in Hong Kong and your employees work 5 day week, whenever there's a public holiday on a Saturday, do you give them the following Monday off? If not, you may have breached the employment laws in Hong Kong.
Apart from contractual annual leave, every employee in Hong Kong is entitled to (i) a minimum of 1 rest day in every period of 7 days in addition to any statutory or alternative or substituted holiday pursuant to Section 17 of the Hong Kong Employment Ordinance ("Ordinance"); and (ii) 12 statutory holidays stipulated in Section 39(1) of the Ordinance, such as Lunar New Year’s Day, the Hong Kong Special Administrative Region Establishment Day (i.e. 1 July) and National Day on 1 October.
A recent case held that where an employee is granted 2 days off in every 7 days, those 2 days should be treated as rest days. Therefore, whenever a statutory holiday falls on one of these 2 days, the employee should be given an extra day’s holiday. Accordingly, as the recent National Day (i.e. 1 October 2005) was a Saturday, this case may mean that employers should have granted employees the following Monday off (i.e. 3 October 2005). Otherwise, employers may be held in breach of the Ordinance.
The Case
In the case of Cathay Pacific Airways Limited v Tam Wei Mei (HCLA 95/2004), the employee, Ms Tam, was a ground crew member of Cathay Pacific who was required to work in shifts and was rostered 2 days off every 7 days. In practice, she was entitled to 2 rest days a week. As a result of the shift system, Ms Tam would have to work on statutory holidays from time to time. After her contract of employment was terminated, she claimed that when she worked on statutory holidays, she had not been given her additional holidays.
As a result, Ms Tam claimed Cathay Pacific had breached the Ordinance and she was entitled to be compensated for such breach
The Court's Decision
Section 18(1) of the Ordinance provides that rest days must be appointed by an employer and he may appoint different rest days for different employees. An employer may instead of granting an employee a holiday on a statutory holiday, grant the employee an alternative holiday in lieu of work on the statutory holiday. When a statutory holiday falls on a rest day, an employee shall be granted a holiday on the next day thereafter which is not a statutory/alternative/substituted holiday or a rest day (See Sections 39(2) and 39(4) of the Ordinance). The latter is not a problem when the statutory holiday is on a Sunday as the following Monday if it is a working day will be designated as a public holiday.
The matter becomes an issue when the statutory holiday falls on a Saturday or when the designated rest day is not Sunday and the statutory holiday falls on that day.
As Cathay Pacific had not specifically appointed a day as a rest day and the Ordinance does not prohibit an employer granting more than the minimum requirement of one rest day a week, the court held that Ms Tam was entitled to 2 rest days a week. Further, there was no oral or written agreement that Ms Tam was to take some of her rest days as substituted or alternative holidays for the statutory holidays (i.e. Cathay Pacific should have given notice to its employees stating that 12 designated rest days would be taken as substitution for the 12 statutory holidays).
The court accordingly ordered Cathay Pacific to pay compensation to Ms Tam equivalent to her daily wages for each statutory holiday which she had worked during her period of employment.
Conclusion
This case will have an impact on those employers who provide more than 1 day off per week to their employees. Employees who do not have to work on both Saturdays and Sundays may be entitled to additional holidays when a statutory holiday falls on a Saturday.
Although this case is now being appealed to the Court of Appeal by Cathay Pacific, employers should specifically state clearly in their employment contracts which day off is a rest day and that any other day off (if any) will not be regarded as a rest day.
We will inform our clients of the judgment in the appeal case in due course. If you are uncertain about your rights or obligations under an employment contract or relationship, lawyers in our Employment Department will be happy to assist you with any inquiries you may have regarding employment or data privacy issues in Hong Kong or the PRC.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.