LBTC 2829/2008

IN THE LABOUR TRIBUNAL OF THEHONG KONG SPECIAL ADMINISTRATIVE REGION CLAIM NO. LBTC 2827/2008, 2828/2008 & 2829/2008
__________________________________
 BETWEEN
LBTC 2827/2008LBTC 2828/2008LBTC 2829/2008
KWAN SIU WA BECKYWU YEE MEI VERAHO KIT MAN JENNY
CLAIMANTS


and



CATHAY PACIFIC AIRWAYS LIMITED
DEFENDANT


__________________________________
Coram: Pang Ka Kwong, Deputy Presiding Officer
Date of Trial: 22, 23 & 24 December 2008, 12 January 2009
Date of Decision on Liability: 12 January 2009
Date of Reasons for Decision on Liability: 12 January 2009
Date of Corrigendum:  22 January 2009
__________________________________

CORRIGENDUM

The quoted provisions of ss.41 and 41C of the Employment (Amendment) Ordinance on pp. 12-15 should be amended as shown in red in the Attachment to this Corrigendum.






                             (Yau Wai-yuen)
Clerk to Pang Ka Kwong, Deputy Presiding Officer



	he worked during every complete wage period, comprising not less than 28 days and not more than 31 days, immediately preceding or expiring on the first day of the annual leave or on the day on which the contract of employment terminates, as the case may be." 

33.	Following the introduction of the EAO, the provisions for calculating SHP and ALP are :-
	(i)	SHP
"41.	Rate of Holiday pay
(1)	For the purposes of subsections (2), (3) and (4), "wages"(工資) includes any sum paid by an employer in respect of -
(a)	a day of maternity leave, a rest day, a sickness day, a holiday or a day of annual leave taken by the employee;
(b)	a day of leave taken by the employee with the agreement of his employer;
(c)	a normal working day on which the employee is not provided with work;
(d)	a day of absence from work of the employee due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap. 282).

(2)	The daily rate of holiday pay is a sum equivalent to the daily average of the wages earned by the employee during -
(a)	the period of 12 months immediately before the holiday or first day of the holidays (as appropriate); or

(b)	if the employee has been employed by the employer concerned for a period shorter than 12 months immediately before the holiday or first day of the holidays (as appropriate), the shorter period.

(3)	In calculating the daily average of the wages earned by an employee during the period of 12 months or the shorter period -
(a)	any period therein for which the employee was not paid his wages or full wages by reason of -
(i)	any maternity leave, rest day, sickness day, holiday or annual leave taken by the employee;
(ii)	any leave taken by the employee with the agreement of his employer;
(iii)	his not being provided by his employer with work on any normal working day; or
(iv)	his absence from work due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap. 282); and
(b)	any wages paid to him for the period referred to in paragraph (a),
are to be disregarded.

(4)	For the avoidance of doubt, if the amount of the wages paid to an employee in respect of a day specified in subsection (1) is only a 
fraction of the amount earned by the employee on a normal working day, the wages and the day are to be disregarded in accordance with subsection (3).
….."

(ii)	ALP
"41C	Rate of annual leave pay
 (1)	For the purposes of subsections (2), (3) and (4), "wages"(工資) includes any sum paid by an employer in respect of -
(a)	a day of maternity leave, a rest day, a sickness day, a holiday or a day of annual leave taken by the employee;
(b)	a day of leave taken by the employee with the agreement of his employer;
(c)	a normal working day on which the employee is not provided with work;
(d)	a day of absence from work of the employee due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap. 282).
(2)	The daily rate of annual leave pay is a sum equivalent to the daily average of the wages earned by the employee during -
(a)	the period of 12 months immediately before the day of annual leave, the first day of the annual leave or the date of termination of the contract of employment (as appropriate); or
(b)	if the employee has been employed by the employer concerned for a period shorter than 12 months immediately before the 
day of annual leave, the first day of the annual leave or the date of termination of the contract (as appropriate), the shorter period.

(3)	In calculating the daily average of the wages earned by an employee during the period of 12 months or the shorter period -
(a)	any period therein for which the employee was not paid his wages or full wages by reason of -
(i)	any maternity leave, rest day, sickness day, holiday or annual leave taken by the employee;
(ii)	any leave taken by the employee with the agreement of his employer;
(iii)	his not being provided by his employer with work on any normal working day; or
(iv)	his absence from work due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap. 282); and
(b)	any wages paid to him for the period referred to in paragraph (a),
are to be disregarded.

(4)	For the avoidance of doubt, if the amount of the wages paid to an employee in respect of a day specified in subsection (1) is only a fraction of the amount earned by the employee



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