Can I make staff work on a statutory holiday in Hong Kong

Can I Make Staff Work on a Statutory Holiday in Hong Kong

Yes. An employer can require an employee to work on a statutory holiday in Hong Kong, but must comply with the pay and alternative holiday requirements under the Employment Ordinance (Cap. 57). The employer may direct an employee to work, provided the employee receives the correct statutory holiday pay and, where applicable, an alternative holiday.

Statutory Holiday Pay Hong Kong

An employee who works on a statutory holiday is entitled to statutory holiday pay. The rate is the employee's average daily wage, calculated from the wages earned in the 12-month period ending on the pay period immediately before the holiday. If the employee has been employed for less than 12 months, the calculation covers the full period of employment.

This payment is separate from the wages for the work actually performed on that day. The employer must pay the statutory holiday pay even if the employee works on the day. The Labour Department publishes a guide on how to calculate the average daily wage for statutory holiday pay.

Working on Public Holiday Hong Kong: The Alternative Holiday Rule

If a statutory holiday falls on a rest day, the employer must grant the employee an alternative holiday. The alternative holiday must fall within the 60 days immediately before or after the statutory holiday. The employer chooses the date of the alternative holiday, not the employee.

When the statutory holiday falls on a rest day and the employee is required to work on that rest day, the employer must still grant the alternative holiday. The employee receives both the wages for working on the rest day and the statutory holiday pay for the alternative holiday.

The same rule applies if a statutory holiday falls on a paid annual leave day or on a sickness allowance day. The employer must grant an alternative holiday.

Employment Ordinance Holiday Pay: Continuous Contract Requirement

Entitlement to statutory holiday pay and an alternative holiday depends on the employee being employed under a continuous contract. Under the 4-18 rule, an employee is deemed to be under a continuous contract if they have been employed by the same employer for four consecutive weeks or more, working at least 18 hours in each week.

An employee who does not meet the 4-18 rule is not entitled to statutory holiday pay or an alternative holiday. The employer may still choose to grant these benefits, but there is no statutory obligation.

Rest Day and Statutory Holiday Interaction

A rest day is a day on which the employee is not required to work. The Employment Ordinance requires that every employee under a continuous contract be granted at least one rest day in every seven-day period. A rest day is not a statutory holiday.

If a statutory holiday falls on a rest day, the employer must grant the alternative holiday as described above. The employee is not entitled to both the rest day and the statutory holiday on the same day. The rest day is preserved, and the statutory holiday is moved to the alternative date.

Paid Annual Leave and Statutory Holidays

An employee under a continuous contract is entitled to paid annual leave. The number of days increases with years of service, starting at seven days for the first year.

If a statutory holiday falls during a period of paid annual leave, the employer must grant an additional day of paid annual leave in place of the statutory holiday. The employee does not lose a day of annual leave because of the statutory holiday.

Sickness Allowance and Statutory Holidays

An employee who is on sickness allowance (paid sick leave) on a statutory holiday is entitled to the statutory holiday pay. The sickness allowance does not replace the statutory holiday entitlement. The employer must grant an alternative holiday if the statutory holiday falls on a sickness allowance day.

Severance Payment and Long Service Payment: Impact of Statutory Holidays

Statutory holiday pay forms part of the employee's wages for the purpose of calculating severance payment and long service payment. The employer must include the statutory holiday pay in the average wage calculation when determining these payments.

Payment in Lieu of Notice and Statutory Holidays

If the employer terminates the contract by making a payment in lieu of notice, the statutory holiday pay that would have accrued during the notice period is not included in the payment. The employee is entitled to the statutory holiday pay separately if the holiday falls within the notice period.

Labour Department Guidance

The Labour Department provides detailed guidance on statutory holiday entitlements, including the calculation of holiday pay and the alternative holiday rules. Employers should refer to the Employment Ordinance and the Labour Department's publications for the current list of statutory holidays and the specific calculation methods.

Practical Steps for Employers

1. Check whether the employee is under a continuous contract using the 4-18 rule.
2. Determine whether the statutory holiday falls on a rest day, a paid annual leave day, or a sickness allowance day.
3. If the holiday falls on a rest day, schedule the alternative holiday within the 60-day window.
4. Calculate the statutory holiday pay using the average daily wage.
5. Pay the statutory holiday pay in addition to the wages for work performed on the holiday.
6. Keep records of the holiday pay calculation and the alternative holiday date.

The employer may require the employee to work on the statutory holiday, but the pay and alternative holiday obligations must be met. Failure to comply with the Employment Ordinance may result in a claim before the Labour Tribunal or the Minor Employment Claims Adjudication Board.