4
5
Calculation of
period of employment.
Special provision
as to termination of contract in case of strike.
Set-off of gratuity or provident fund payment against long service payment.
for every year (and pro rata as respects an incomplete yea employment under a continuous contract by his employer subject in all cases to a maximum payment not exceeding the total amount of wages earned during the period of 12 months immediately preceding the relevant date:
Provided that the employee may elect to have his wages averaged over the period of 12 months immediately preceding the relevant date.
(2) Subject to this Part, the amount of a long service payment to which an employee, other than an employee referred to in subsection (1), is entitled is—
(a) in the case of an employee aged at the relevant date 36 years or more but less than 40 years, 75% of the long service payment to which he would have been entitled if subsec- tion (1) applied; and
(b) in the case of an employee aged at the relevant date less than 36 years, 50% of the long service payment to which he would have been entitled if subsection (1) applied.
31W. For the purposes of this Part, a reference to the period of employment under a continuous contract shall not include a reference to any such employment occurring more than-
(a) 6 years prior to 1 January 1986, where the relevant date
occurs in 1986;
(b) 7 years prior to 1 January 1986, where the relevant date
occurs in 1987;
(c) 8 years prior to 1 January 1986, where the relevant date
occurs in 1988; and
(d) 9 years prior to 1 January 1986, where the relevant date
occurs in 1989 or any year thereafter.
31X. Where an employee, who has been given notice by his employer to terminate his contract of employment, takes part in a strike before the expiry of that notice in such circumstances that the employer is entitled by reason of his taking part in the strike to treat the contract as terminable without notice, and the employer for that reason terminates the contract without notice or payment in lieu in accordance with section 9, section 31S shall not apply to that termination of the contract.
31Y. (1) Subject to subsection (2), where an employee is entitled-
(a) by virtue of this Part, to a long service payment; and (b) by virtue of—
(i) the terms of his contract of employment, to any gratuity based upon length of service; or
(ii) a provident fund scheme or arrangement, to any payment thereunder,
the long service payment shall be reduced by the total sum of the amounts of all the gratuities or provident fund payments, as the case may be, paid to that employee in respect of any or all of the years of service in respect of which that long service payment is payable.
(2) For the purposes of subsection (1), any provident fund payment shall not include that part, if any, of the payment which represents a return of an employee's own contributions, including any sum payable in respect of interest thereon.
e of Ship of
business.
Associated companies.
(Cap. 32.)
31Z. (1) This section shall have effect where-
(a) a change occurs (whether by virtue of a sale or other disposition or by operation of law) in the ownership of a business for the purposes of which a person is employed, or of a part of such a business; and
(b) in connexion with that change the person by whom the employee is employed immediately before the change occurs (in this section referred to as "the previous owner") termi- nates the employee's contract in accordance with section 6 or 7.
(2) If, by agreement with the employee, the person who immediately after the change occurs is the owner of the business or of the part of the business in question, as the case may be, (in this section referred to as "the new owner") renews the employee's contract of employment (with the substitution of the new owner for the previous owner) or re-engages him under a new contract of employment, section 31T(2) shall have effect as if the renewal or re-engagement had been a renewal or re-engagement by the previous owner (without any substitution of the new owner for the previous owner).
(3) This section shall have effect (subject to the necessary modifications) in relation to a case where—
(a) the person by whom a business, or part of a business, is owned immediately before a change is one of the persons by whom (whether as partners, trustees or otherwise) it is owned immediately after the change; or
(b) the persons by whom a business, or part of a business, is owned immediately before a change (whether as partners, trustees or otherwise) include the person or one or more of the persons by whom it is owned immediately after the change,
as this section has effect where the previous owner and the new owner are wholly different persons.
(4) Nothing in this section shall be construed as requiring any variation of a contract of employment by agreement between the parties to be treated as constituting a termination of the contract.
31ZA. (1) Where the employer is a company, any reference in this Part to re-engagement by the employer shall be construed as a reference to re-engagement by that company or by any associated company.
(2) Subsection (1) shall not affect the operation of section 31Z in a case where the previous owner and the new owner (as defined by that section) are associated companies; and where that section applies, subsection (1) shall not apply.
(3) Where an employee of a company is taken into the employ- ment of another company which, at the time when he is taken into its employment, is an associated company of the first-mentioned com- pany, his period of employment at that time shall count as a period of employment with the associated company, and the change of employer shall not break the continuity of the period of employment.
(4) For the purposes of this section, 2 companies shall be taken to be associated companies if one is a subsidiary of the other, or both are subsidiaries of a third company, and “associated company” shall be construed accordingly.
(5) In this section "company" and "subsidiary" have the mean- ings respectively assigned thereto by section 2 of the Companies Ordinance.
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