TNAG-1519-FCO40-2080-Employment-in-Hong-Kong-1986 — Page 194

2

3

(Cap. 332.)

"strike" has the meaning assigned to it by section 2 of the Trade U S

Ordinance;

"week", for the purposes of Parts VA and VB, means the period between midnight on Saturday night and midnight on the succeeding Saturday night;"; and

(b) in subsection (2), by inserting after paragraph (c) the following—

"(ca) any long service payment under Part VB;".

Amendment of section 25.

3.

Section 25(2) of the principal Ordinance is amended- (a) by deleting "and" at the end of paragraph (b); and

Repeal of

section 31A.

Amendment of

section 31B.

Amendment of section 31K.

Addition of new Part VB.

(b) by inserting after paragraph (b) the following—

4.

5.

"(ba) any long service payment due to the employee; and”.

Section 31A of the principal Ordinance is repealed.

Section 31B(1) of the principal Ordinance is amended by deleting ", on or after a day to be appointed by the Governor by notice in the Gazette,”.

6.

Section 31K(6) of the principal Ordinance is amended by deleting “sec- tions 2 and 126" and substituting the following-

"section 2".

7. The principal Ordinance is amended by adding after Part VA the following—

General provisions as to

right to long

service payment.

Fifth Schedule.

General exclusions from right to long service payment by reason of dismissal.

"PART VB

LONG SERVICE PAYMENTS

31R. (1) Where an employee who has been employed under a continuous contract is dismissed and-

(a) his employer is not liable to pay him a severance payment

by reason thereof; and

(b) the employee has been employed under that contract for not less than the number of years of service, ending with the relevant date, specified in column 2 of the table in the Fifth Schedule opposite his age at the relevant date specified in column 1 of that table,

the employer shall, subject to this Part, be liable to pay to the employee a long service payment calculated in accordance with section 31V.

(2) For the purposes of the application of this Part to an employee who is employed as a domestic servant in, or in connexion with, a private household, this Part (except section 31Z) shall apply as if the household were a business and the maintenance of the house- hold were the carrying on of that business by the employer.

31S. (1) Except as provided by section 31X, an employee shall not be entitled to a long service payment by reason of dismissal where his employer, being so entitled by reason of the employee's conduct, terminates his contract of employment without notice or payment in lieu in accordance with section 9.

(2) An employee shall not be entitled to a long service payment by reason of dismissal where he leaves the service of his employer—

(a) before the expiration of notice given to him by the employer in accordance with section 6 without the prior consent of the employer; or

Dismissal by employer.

Excluded classes of employees.

(Cap. 89.)

Amount of long service payment.

(b) without having made a payment in lieu to the employer in

accordance with section 7.

31T. (1) For the purposes of and subject to this Part, an employee shall be taken to be dismissed by his employer if, but only if

(a) the contract under which he is employed is terminated by the employer with or without notice or payment in lieu thereof other than in accordance with section 9:

(b) where under that contract he is employed for a fixed term, that term expires without being renewed under the same contract; or

(c) the employee, being so entitled by reason of the employer's conduct, terminates that contract without notice or pay- ment in lieu in accordance with section 10.

(2) An employee shall not be taken for the purposes of this Part to be dismissed by his employer if-

(a) his contract of employment is renewed, or he is re-engaged by the same employer under a new contract of employment; and

(b) the renewal or re-engagement takes effect immediately on

the ending of his employment under the previous contract. (3) For the purposes of the application of subsection (2) to a contract under which the employment ends on a rest day or holiday, the renewal or re-engagement shall be treated as taking effect immediately on the ending of the employment under the previous contract if it takes effect on or before the next day after that rest day or holiday.

31U. Section 31R shall not apply-

(a) where the employer is the husband or wife of the employee; (b) to any outworker;

(c) to any person in respect of any employment which renders him eligible for any pension, gratuity or annual allowance under the Pensions Ordinance;

(d) to any person, employed by a government other than the Hong Kong Government, who is a subject or citizen of the state under whose government he is employed; or

(e) without prejudice to paragraph (a), to any person in respect of employment as a domestic servant in, or in connexion with, a private household, where the employer is the father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, step- daughter, brother, sister, half-brother or half-sister of the employee.

31V. (1) Subject to this Part, the amount of a long service payment to which an employee aged not less than 40 years at the relevant date is entitled in any case shall be calculated by allowing-

(a) in the case of a monthly rated employee, two-thirds of his

last full month's wages; and

(b) in any other case, 18 days wages based on any 18 days chosen by the employee and occurring during his last 30 normal working days,