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: Aug 6, 2021
#香港労働法 #日本人 #HongKong #Labor #Issues
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。
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)
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).
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.
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.
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.
Annual leave to which an employee is entitled—
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;
subject to paragraph (c), shall be for an unbroken period; and
subject to subsection (9), shall, if the employee so requests his employer, be divided as follows—
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
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).
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)
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.
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))—
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
grant the employee paid leave equal to the leave which should have been granted;
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.
an employer proposes to close down his business or part thereof for the purpose of granting annual leave to any of his employees; and
notice of the proposed close down is duly given under section 41F; and
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—
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;
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.
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)
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 1994 or in any subsequent year
At least 1 year but less than 3 years
At least 3 years but less than 4 years
At least 4 years but less than 5 years
At least 5 years but less than 6 years
At least 6 years but less than 7 years
At least 7 years but less than 8 years
At least 8 years but less than 9 years
At least 9 years
(Added 53 of 1990 s. 2)
Payment of annual leave pay on cesser of employment
an employee ceases to be employed; and
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