香港労働 Hong Kong Labor Issues #13 日本人のための香港労働問題研究:有給休暇としての年休

Updated: May 26

#香港労働法 #日本人 #HongKong #Labor #Issues

香港労働 Hong Kong Labor Issues

雇用条例第41AA条

年休(annual leave)は、有給休暇(paid leave)であり香港でも全ての労働者に法的に保障されている。有給休暇は、労使双方の雇用契約で取り決めることができるが、その際日本の労基法と同様に、法定基準は最低基準であり、それ以下は違法であり、無効となる。そして有給休暇とは、ここでは年休(annual leave)を指し、無給欠勤日(unpaied leave:この概念は無断欠勤との区別が欠勤理由によりされるべきである)、法定休日(reguratory holiday: 週1日の休日)や公的祝日休暇(公休; public holiday)とは別の概念である。

注意

ただし、香港の休日概念は複雑なので、有給休暇を年休(annual leave)の意味で使う場合と、労働者が雇用期間3ヶ月を満了すると取得できる有給休暇としての年12日の公的祝日休暇(公休; public holiday)を指す場合がある。ここでは、有給休暇のうち、年休を指す。(註1)

これらをいかに最低限度あるいはそれ以下にして労働コストを下げた分、つまり搾取率が上がれば上がるほど、その分人事部の評価になる仕組みである以上、労働者側は尚更これらの概念についておろそかにはできない。労働法について知らされなければ、権利行使もないからである。実は、権利行使がなければ、労働問題として統計上はカウントされない。統計上は問題なしとなる。

雇用条例第41AA条

41AA.

Annual leave

(1)

Subject to this Part, every employee who has been in employment under a continuous contract for not less than 12 months shall, in respect of each leave year, be entitled to paid leave (in this Part referred to as annual leave) calculated in accordance with subsection (2).

(2)

Where an employee has been in employment under a continuous contract for a period specified in column (1) of the Table to this section, the amount of annual leave to which he shall be entitled in respect of any leave year in that period shall be the number of days specified in column (2) of such Table in respect of the period.

(3)

Subject to subsection (5)(c), times at which annual leave is granted shall be determined by the employer after consultation with the employee concerned or his representatives.

(4)

An employer shall give an employee not less than 14 days’ notice in writing of the time he has determined for the grant of a period of annual leave, except where a shorter period of notice is agreed to by the employer and employee.

(5)

Annual leave to which an employee is entitled—

(a)

shall be granted by his employer and be taken by the employee within the period of 12 months beginning immediately after the expiration of the leave year to which it relates;

(b)

subject to paragraph (c), shall be for an unbroken period; and

(c)

subject to subsection (9), shall, if the employee so requests his employer, be divided as follows—

(i)

where the leave entitlement does not exceed 10 days, it shall be granted on consecutive days except that not more than 3 days of the period of leave may be granted on any day or days (whether consecutive or not); and

(ii)

where such entitlement exceeds 10 days, 7 days of the period of leave shall be granted on consecutive days and the remaining leave may be granted on any day or days (whether consecutive or not).

(6)

If a rest day or holiday falls within any period of annual leave granted in accordance with this section, it shall be counted as annual leave and another rest day or holiday shall be substituted in accordance with section 18(5) or section 39(2), (2A), (3) or (4), as the case may require.

(Amended 137 of 1997 s. 5)

(7)

No period of total incapacity for work by reason of sickness or injury occurring during a period of annual leave shall count as part of that annual leave unless it commences after the commencement of the period of annual leave.

(8)

Where—

(a)

an employer continues to employ an employee after the expiration of a period during which annual leave should have been granted to him and the employer has not granted that leave, then at the option of the employee but subject to paragraph (b) the employer shall (whether or not proceedings have been taken for an offence under section 63(4)(e))—

(i)

pay to the employee, in addition to any pay due to him, compensation equal in amount to the annual leave pay which he would have received had the leave been granted so as to end on the expiration of the period during which it should have been granted; or

(ii)

grant the employee paid leave equal to the leave which should have been granted;

(b)

an employee opts under paragraph (a) to take paid leave, he shall take the leave on such day or days as may be agreed to by the employer and him or, if there is no such agreement, as shall be specified by the employer.

(9)

Where—

(a)

an employer proposes to close down his business or part thereof for the purpose of granting annual leave to any of his employees; and

(b)

notice of the proposed close down is duly given under section 41F; and

(c)

such close down will not result in any person who has been in employment in the business under a continuous contract for 12 months or more having to take annual leave on fewer consecutive days than—

(i)

where his leave entitlement does not exceed 10 days, the number of consecutive days’ leave that would be required to be granted under subsection (5)(c)(i) were his leave being divided under that subsection;

(ii)

7 days where his leave entitlement exceeds 10 days,

then nothing in this section shall prevent or restrict, or be construed as preventing or restricting, the close down.

(10)

For the avoidance of doubt it is declared that annual leave is, and shall be granted, in addition to the rest days, holidays, maternity leave and paternity leave to which an employee is entitled under this Ordinance.

(Amended 21 of 2014 s. 12)

Table

(1)

(2)

Number of days’ annual leave for a leave year ending—

Period of employment

in the part of 1990 beginning on the coming into operation of this Table and ending on the following 31 December

in 1991

in 1992

in 1993

in 1994 or in any subsequent year

At least 1 year but less than 3 years

7

At least 3 years but less than 4 years

8

At least 4 years but less than 5 years

9

At least 5 years but less than 6 years

10

At least 6 years but less than 7 years

11

At least 7 years but less than 8 years

12

At least 8 years but less than 9 years

13

At least 9 years

14

(Added 53 of 1990 s. 2)

有給休暇(年休)の計算方法 

労働者は、勤務してから満12ヶ月で、有給休暇である年休を取得できる。この年休は勤務年数の長さに応じて、初年の7日から14日間まで増える。

要するに、試用期間後、1、2年目は毎年7日であり、以降は、9年目の14日まで増加していく。では、雇用期間が、2年半で、その半年間に有給休暇はあるのか?日数はどうなるか?

雇用条例第41D(2)条で計算すると、雇い止めでも契約終了の7日までには最終雇用期の日数を365日における同一の比率で計算し、支給しなければならない。(註2)

勤務3カ月を経た後で、有給休暇を消化させずに、解雇、雇い止めをすることに対しての問題意識がある。また、勤務3カ月以降辞職した場合も、百分率により年休の賃金を取得できる。

この年休の計算方法では、もし1日に満たない労働日が出てしまう場合は、1日として計算する法理が確定している。

また、この計算から年休時の取得額を除外する。

雇用条例第41D条

41D.

Payment of annual leave pay on cesser of employment

(1)

Where—

(a)

an employee ceases to be employed; and

(b)

annual leave is due to him,

the person by whom he was formerly employed shall, as soon as practicable and in any case not later than 7 days after such cesser, pay to him in respect of the annual leave compensation equal in amount to the annual leave pay he would have received had the leave so due been granted immediately after such cesser.

(2)

Where—

(a)

an employee ceases to be employed;

(b)

the cesser occurs otherwise than on the expiration of a leave year of the employee;

(c)

his contract of employment terminates or is terminated otherwise than under section 9 for any reason whatsoever (including his resignation); and

(d)

the termination occurs at least 3 months after the appropriate day,

he shall, as soon as practicable and in any case not later than 7 days after the termination, be paid by the person by whom he was formerly employed, in addition to any sum due under subsection (1), a sum equal in amount to that which bears to the notional leave pay the same proportion as the number of days in the final employment period bears to 365.

(Replaced 53 of 1990 s. 3)

有給休暇(年休)の適用を阻害する解雇、雇い止め

この問題には、上記の他に、第41A条で仮定休暇期間給与の規定があり、上記の例で2年を経て、さらに2年目の半年までで解雇や雇い止めにあって有給休暇取得が阻害される場合、この条項では2年目の次の年、つまり3年(その年8日の有給休暇)で計算する。(註3)

41A.

Definitions (Part VIIIA)

In this Part, in relation to an employee—

appropriate day (適用日) means—

(a)

where the employee becomes entitled under section 41F(3) to any annual leave, the first day of the close down as regards which the entitlement arises or where he becomes so entitled more than once in any period of 12 months, the first day of the more or most recent, as appropriate, of such close downs; or

(b)

where the employee does not become so entitled—

(i)

the day following the end of the employee’s last (or only) leave year; or

(ii)

where there is no such leave year, the day on which his employment commenced;

final employment period (最終僱傭期) means the period beginning on the appropriate day and ending on the termination of his employment;

leave year (假期年), unless the context otherwise requires, means any period of 12 months—

(Amended 61 of 1993 s. 6)

(a)

commencing on—

(i)

in case the employee is entitled under section 41F(3) to any annual leave, the first day of the close down as regards which the entitlement arose; or

(ii)

in the case of any other employee, the day on which his employment commenced; or

(b)

commencing on an anniversary of such day;

notional leave pay (假定假期薪酬) means an amount equal to the annual leave pay which would have been due to the employee had his contract of employment terminated, or been terminated, on the appropriate day’s anniversary next following such contract’s actual termination and had that pay been calculated in accordance with section 41C.

(Amended 7 of 2007 s. 13)

(Replaced 53 of 1990 s. 2)

有給休暇(年休)の計算に報酬やチップは含まれるか?