TNAG-1519-FCO40-2080-Employment-in-Hong-Kong-1986 — Page 197

8

personal representative of the deceased employer, if apart from this graph it would not count for that purpose as such a period of employ_t; and

(b) in computing the number of years of service specified in section 31R(1), the continuity of the employee's period of employment shall be treated as not being broken by any week which falls within that interval.

5.

For the purposes of the application, in accordance with section 31R(2), of Part VB of this Ordinance in relation to an employee who was employed as a domestic servant in, or in connexion with, a private household, any reference to a personal representative in this Part of this Schedule shall be construed as including a reference to any person to whom, otherwise than in pursuance of a sale or other disposition for valuable consideration, the management of the household has passed in consequence of the death of the deceased employer.

6. Subject to this Part of this Schedule, in relation to an employer who has died-

(a) any reference in Part VB of this Ordinance to the doing of anything by, or in relation to, an employer shall be construed as including a reference to the doing of that thing by, or in relation to, any personal representative of the deceased employer; and

(b) any reference in Part VB of this Ordinance to a thing required or authorized to be done by, or in relation to, an employer shall be construed as including a reference to anything which, in accordance with any provision of Part VB of this Ordinance as modified by this Part of this Schedule (including sub-paragraph (a)), is required or authorized to be done by, or in relation to, any personal representative of his.

7.

Where by virtue of Part VB of this Ordinance, as modified by this Part of this Schedule, a personal representative of the deceased employer is liable to pay a long service payment, or part of a long service payment, and that liability had not accrued before the death of the deceased employer, it shall be treated for all purposes as if it were a liability of the deceased employer which had accrued immediately before his death.

PART II

DEATH OF EMPLOYEE

8. Where an employer has given notice to an employee to terminate his contract of employment, and before that notice expires the employee dies, Part VB of this Ordinance shall apply as if the contract had been duly terminated by the employer by notice expiring on the date of the employee's death.

9. Subject to this Part of this Schedule, in relation to an employee who has died, any reference in Part VB of this Ordinance to—

(a) the doing of anything by, or in relation to, an employee shall be construed as including a reference to the doing of that thing by, or in relation to, any personal representative of the deceased employee; and

(b) a thing required or authorized to be done by, or in relation to, an employee shall be construed as including a reference to anything which, in accordance with Part VB of this Ordinance as modified by this Part of this Schedule (including sub-paragraph (a)), is required or authorized to be done by, or in relation to, any personal representative of his.

10. Any right of a personal representative of a deceased employee to a long service payment, where that right had not accrued before the employee's death, shall devolve as if it had accrued before his death.".

9

Explanatory Memorandum

The object of this Bill is to provide for a long service payment to certain employees whose contracts of employment are terminated by dismissal. The long service payment will be calculated by reference to an employee's age and years of service. The long service payment will not be payable where the employee is entitled to a severance payment under Part VA of the principal Ordinance, or where the employee is summarily dismissed for misbehaviour under section 9 of the principal Ordinance.

2. Clause 1 fixes 1 January 1986 as the date on which the Bill shall come into operation.

3. Since the definitions occurring in section 31A of Part VA of the principal Ordinance are equally applicable to the new Part VB as well as to Part VA, clause 2(a) amends section 2(1) of the principal Ordinance by inserting those definitions, together with a definition of "long service payment". Consequentially, clause 4 repeals sec- tion 31A of the principal Ordinance.

4. Clause 2(b) amends section 2(2) of the principal Ordinance to provide, similarly to severance payments, that no account of overtime pay shall be made in calculating the wages of an employee for the purposes of any long service payment.

5. Clause 3 amends section 25(2) of the principal Ordinance to ensure that an employee's long service payment entitlement is paid to him not later than 7 days after the termination of his contract of employment.

6. Clause 5 deletes some redundant words from section 31B(1) of the principal Ordinance.

7. Clause 6 corrects an incorrect reference to the Companies Ordinance (Cap. 32) in section 31K(6) of the principal Ordinance.

8. Clause 7 inserts a new Part VB in the principal Ordinance to provide for an employee's entitlement to a long service payment. New section 31R sets out the employer's liability to make such a payment to eligible employees. New section 31S sets out certain grounds of dismissal which would exclude an employee from entitlement to a long service payment. New section 31V provides for calculating the amount of a long service payment to which an employee is entitled. New section 31W provides for calculating the years of service an employee has worked prior to 1 January 1986 (the date on which the Bill is to come into operation) to be included for the purposes of calculating the amount of the employee's long service payment entitle- ment. New section 31Z, in conjunction with paragraph 5 in the First Schedule to the principal Ordinance, provides that a change in the ownership of a business will not affect any qualifying service worked by an employee with the previous owner of the business. Such service will be deemed to be service with the new owner of the business. Clause 8 amends a minor error in paragraph 13 in the Third Schedule to the principal Ordinance, as the reference to "I month" should, in accordance with sec- tion 31N of the principal Ordinance, be to "3 months".

9.

10. Clause 9 amends the principal Ordinance by adding 2 new Schedules. The new Fifth Schedule sets out the number of years of service an employee must have worked, depending on his age, as at the time of the termination of his contract of employment in order to be entitled to a long service payment. The new Sixth Schedule provides for what is to happen in respect of a long service payment in the event of the death of an employer or employee.

11. This Bill has very slight Public Service staffing and public finance implica- tions. No additional staff will be immediately required in the Labour Department.