G.S. 84
XCR (79)32
(b)
(c)
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will be an offence. This amendment is necessary because some employers simply lump all holidays together and argue (wrongly) that they have fulfilled all the requirements under the Ordinance simultaneously. In consequence it is necessary to replace section 41A (3), to delete the provision it contains enabling statutory holidays and rest days to be included with the annual period of leave (Clause 2(a)).
To state expressly in section 41A that the 7 days' paid annual leave shall be granted in addition to the 10 statutory holidays and rest days (Clause 2(c)). As at present worded, the law does not contain such an express statement, and a firm of solicitors writing on behalf of an employer, has challenged the interpretation of this section. The solicitors have argued that "a period of not less than 7 consecutive days of absence from work made up of such annual leave or part thereof and other days being statutory holidays or rest days", when granted, would be sufficient compliance with the law. The employer then attempted to use 3 consecutive statutory holidays (e. g. during Lunar New Year) plus a rest day plus two alternative/substituted holidays plus one day of paid annual leave to make up the 7 consecutive days. No further substituted holidays were granted subsequently. As the workers did not see fit to claim against the employer regarding the remaining days of annual leave, the matter could not be referred to the Labour Tribunal for a judicial ruling, even though Crown Counsel had advised that the solicitors' interpretation of the law was incorrect. It is therefore felt that an express statement of the position would assist in discouraging such attempts.
To make it clear, in section 41C(1), that pay for the 7 days' annual leave should be equivalent to the normal wages for 7 days as if each and every day were worked (Clause 3). The present wording refers to "a sum equivalent to the wages, other than overtime pay, which the employee would have earned if he had worked during the period of annual leave".
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