[orrock]

hi

im after info on labour law in terms of annual leave. i found on the labour gov web site "an employee is entitled to 7 days annual leave after serving every period of 12 months under a continuous contract"

what i want to know is whether the employee is entitled to pro-rata annual leave if he/she has only served 4 months so far.

and if the employee is entitled to pro-rata annual leave then does it make a difference whether that employee was on 3 month probation? (same continuous contract) would be it pro-rata from the contract starting date or pro-rata from the completion of the probation period?

thanks for your help

[hullexile]

As I understand it, it is 7 days after serving 12 months, so in the first year you are entitled to no holiday, certainly my PA gets none. So yes it is pro-rata 4/12 of zero is zero.

[JAherbert]

Originally Posted by orrock

hi

im after info on labour law in terms of annual leave. i found on the labour gov web site "an employee is entitled to 7 days annual leave after serving every period of 12 months under a continuous contract"

what i want to know is whether the employee is entitled to pro-rata annual leave if he/she has only served 4 months so far.

and if the employee is entitled to pro-rata annual leave then does it make a difference whether that employee was on 3 month probation? (same continuous contract) would be it pro-rata from the contract starting date or pro-rata from the completion of the probation period?

thanks for your help

what does the employment contract say?, if no contract (very bad idea) first year = 0 days

and probation period makes no different it is still 0 days.

[KnowItAll]

http://www.labour.gov.hk/eng/public/...seGuide/04.pdf

We'd generally give the employees some amount of leave in advance.

[KnowItAll]

From the above document.... might be helpful in figuring out how to calculate the amount of leave.

Common Leave Year
An employer may elect any period of 12 consecutive months as the
common leave year for all of his employees. Should the employer wish to
make this arrangement, he shall give one month's notice either to each of
his employees in writing or by posting a notice in a conspicuous place in
the place of employment.
If an employee has not been employed for 12 months in the common leave
year, the employer should calculate his leave entitlement on a pro rata
basis, and any fraction of a day resulting from the calculation should be
counted as a full day's leave.
After consultation with his employer, the employee may opt to take the pro
rata annual leave accrued preceding the commencement of the common
leave year or carry it forward and combine it with his leave accrued in the
next leave year.
[Example]
common leave year: 1.1.2003 to 31.12.2003
commencement date of employment: 1.9.2003
pro rata annual leave: 122* / 365 X 7 = 2.34 days (round up to 3 days)
(*122 is the number of days between 1.9.2003 and 31.12.2003)
The employee may take the 3 days' leave in 2004, or combine it with his 7
days' leave accrued in 2004 and take 10 days' leave in 2005.

[orrock]

wow that was fast! thanks very much for the info. so under 12 months service the employee is entitled to pro rata annual leave.

because the document knowitall referenced didnt mention probation period im still wondering about when the pro rata calculation should begin (start of employment or end of probation) if theres a probation period on the employment contract.

and the employment contract has a clause in it stating that no benefits such as medical and annual leave is entitled to the employee for the probation period. entitlements are granted after completion of probation.

but as i understand the law it counts the date as per the commencement date on the employment contract, not a completion of any probation period.

[hullexile]

But looking at what KIA posted, the pro-rata leave for 2006 is not available until 2007, so as I thought the first year is in effect zero leave - you earn leave in year one to take in year 2.

[orrock]

ok after consultation with the employer the employee can choose to take the leave now or carry it forward to the next year. but still where would you count how much is entitled, from the employment commencement date or from when probation is completed which is 3 months from the actual employment commencement date (give that the contract has clause that no entitlement is granted in the probation period)

[hullexile]

In UK law it would commence from the actual start date regardless of the probation as long as your contract was not terminated in the probation period. But HK law is much less generous to employees usually. What does your employer say? Surely we are only looking at one or two days anyway?

[sorciere]

As a local hongkongese, I can tell you that there are many variations... and as far as I understand, there are two "categories" of law which cover the employment contract, namely the Employment Ordinance (by the Labour Dept in HK) and the Contract Law. **I am not a lawyer so do correct me if I am wrong.

There seems to be no hard and fast law stating WHEN you can start taking your leave apart from the Employment Ordinance saying that you are entitled to 7 days of paid leave on completion of 12 months of employment under the terms of a continuous contract. So it's up to what the contract says or what is verbally "agreed" on signing the contract. Some companies are "generous" to give leave on pro-rata basis right from the beginning of employment... but some, to me it's like fashion, only starts to give paid leave (including sick leave) after the probation.

Why do I say it's like fashion? For example, because for majority of the companies, they would pay their employees paid statutory leave during the probation period. However, some just follow "strictly" the Employment Ordinance to give the minimum and no PAID statutory leave is granted during the first 90 days of employment.

For me as a local, I am lucky that I have always worked for generous employers who don't give the "minimum".

I hope I haven't confused you too much here...