香港労働法 Hong Kong Labor Issues #60 日本人のための香港労働問題研究：雇用条例 (Employment Ordinance) VC-VIA:日本語版
香港雇用条例 日本語翻訳版
【原文】
Part VC Supplementary Provisions to Parts VA and VB
(Part VC added 52 of 1988 s. 14. Format changes—E.R. 3 of 2017)
*31ZF. Re-employment after retirement at a specified age
(1) Subject to subsection (2), where a continuous contract of employment specifies an age of retirement and— (a) the employee retires at that age; and (b) the employee has been employed under that contract for not less than 5 years of service ending at the relevant date; and (Amended 74 of 1997 s. 14) (c) he receives in relation to the years of service in respect of which long service payment would have been payable, had the employee been dismissed at the relevant date,— (i) by virtue of the terms of his contract of employment, any gratuity based upon length of service; or (ii) by virtue of a retirement scheme, any payment thereunder ; and (d) the total sum he receives under paragraph (c) is not less than the long service payment to which he would have been entitled had he been dismissed at the relevant date; and (e) immediately after his retirement, the employee is re-employed by the person by whom he was employed immediately before his retirement, then for the purposes of Parts VA and VB of this Ordinance, the employment after retirement shall be regarded as a fresh employment. (2) For the purposes of subsection (1), any reference therein to a retirement scheme payment shall not include that part, if any, of the payment which represents a return of an employee’s own contributions, including any sum payable in respect of interest thereon. (Amended 41 of 1990 s. 16)
Editorial Note: * The operation of this section is affected by the transitional provisions contained in s. 31ZG.
31ZG. Transitional
The amendment made by section 14 of the Employment (Amendment) (No. 2) Ordinance 1997 (74 of 1997) to section 31ZF shall not affect employees who retired before the commencement* of that amendment; and the provisions of section 31ZF as they read immediately before such commencement shall continue to apply as regards such employees as if it had not been so amended. (Added 74 of 1997 s. 15)
Editorial Note: * Commencement date: 27 June 1998.
Part VIA Employment Protection
(Part VIA added 75 of 1997 s. 4. Format changes—E.R. 3 of 2017)
32A. Employee’s entitlement to employment protection
(1) An employee may be granted remedies against his employer under this Part— (a) where he has been employed under a continuous contract for a period of not less than 24 months ending with the relevant date and he is dismissed by the employer because the employer intends to extinguish or reduce any right, benefit or protection conferred or to be conferred upon the employee by this Ordinance; (b) where he is employed under a continuous contract and the employer, without his consent and, in the absence of an express term in his contract of employment which so permits, varies the terms of his contract of employment because the employer intends to extinguish or reduce any right, benefit or protection conferred or to be conferred upon the employee by this Ordinance; or (c) where he is dismissed by the employer other than for a valid reason within the meaning of section 32Kand in contravention of— (i) section 15(1), 21B(2)(b), 33(4B) or 72B(1); (ii) section 6 of the Factories and Industrial Undertakings Ordinance (Cap. 59); or (iii) section 48 of the Employees’ Compensation Ordinance (Cap. 282), whether or not the employer has been convicted of an offence in respect of the dismissal. (2) For the purposes of subsection (1)(a), an employee who has been dismissed by the employer shall, unless a valid reason is shown for that dismissal within the meaning of section 32K, be taken to have been so dismissed because the employer intends to extinguish or reduce any right, benefit or protection conferred or to be conferred upon the employee by this Ordinance. (3) For the purposes of subsection (1)(b), the variation of the terms of the contract of employment by the employer as referred to in that subsection shall, unless a valid reason is shown for that variation within the meaning of section 32K, be taken to be a variation of the terms of the contract of employment by the employer by reason that the employer intends to extinguish or reduce any right, benefit or protection conferred or to be conferred upon the employee by this Ordinance. (4) For the purposes of subsection (1)(c)— (a) it shall not be necessary for an employee to show in relation to— (i) subsection (1)(c)(i), that his contract of employment was terminated by reason of his exercising any of the rights vested in an employee by or by virtue of section 21B(1) or by reason of the fact of his doing any of the things mentioned in section 72B(1); (ii) subsection (1)(c)(ii), that his contract of employment was terminated by reason of the fact of his doing any of the things mentioned in section 6 of the Factories and Industrial Undertakings Ordinance (Cap. 59); and (b) an employee who has been dismissed by the employer shall be taken to have been dismissed without a valid reason unless a valid reason is shown for that dismissal within the meaning of section 32K. (5) For the purposes of subsection (1)(c), an employee shall be entitled to remedies under this Part if and only if— (a) in relation to a dismissal in contravention of section 21B(2)(b), the employee has exercised any of the rights mentioned in section 21B(1) within a period of 12 months immediately preceding such dismissal by the employer; (b) in relation to a dismissal in contravention of section 72B(1), the employee has done any of the things mentioned in that section within a period of 12 months immediately preceding such dismissal by the employer; (c) in relation to a dismissal in contravention of section 6 of the Factories and Industrial Undertakings Ordinance (Cap. 59), the employee has done any of the things mentioned in that section within a period of 12 months immediately preceding such dismissal by the employer.
32B. Dismissal by employer
(1) For the purposes of section 32A(1)(a) and subject to this Part, where an employee is dismissed because the employer intends to extinguish or reduce his right to a severance payment or to a long service payment, he shall be taken to be dismissed by his employer if, but only if— (a) the contract under which he is employed is terminated by the employer with or without notice or payment in lieu otherwise than in accordance with section 9; (b) where under that contract he is employed for a fixed term, that term expires without being renewed under the same contract; or (c) the employee terminates that contract with or without notice or payment in lieu, in circumstances such that he is entitled to terminate it without notice or payment in lieu in accordance with section 10 by reason of the employer’s conduct. (2) Subject to subsection (1), an employee shall be taken for the purposes of section 32A(1)(a) and (c) to be dismissed by his employer when the contract under which he is employed is terminated by the employer with or without notice or payment in lieu otherwise than in accordance with section 9. (3) An employee shall not be taken for the purposes of section 32A(1)(a) to be dismissed by his employer if— (a) his contract of employment is renewed, or he is re-engaged by the same employer under a new contract of employment; and (b) the renewal or re-engagement takes effect immediately on the ending of his employment under the previous contract. (4) For the purposes of the application of subsection (3) to a contract under which the employment ends on a rest day or holiday, the renewal or re-engagement shall be treated as taking effect immediately on the ending of the employment under the previous contract if it takes effect on or before the next day after that rest day or holiday.
32C. General exclusions from right to remedies
(1) An employee shall not be entitled to remedies under this Part if, not less than 7 days before the relevant date, the employer has offered to renew his contract of employment, or to re-engage him under a new contract so that— (a) the provisions of the contract as renewed, or of the new contract, as the case may be, would not differ from the corresponding provisions of the contract as in force immediately before the dismissal; and (b) the renewal or re-engagement would take effect on or before the relevant date, and the employee has unreasonably refused that offer. (2) An employee shall not be entitled to remedies under this Part if, not less than 7 days before the relevant date, the employer has made to him an offer in writing to renew his contract of employment, or to re-engage him under a new contract, so that in accordance with the particulars specified in the offer the provisions of the contract as renewed, or of the new contract, as the case may be, would differ, wholly or in part, from the corresponding provisions of the contract as in force immediately before the dismissal, but— (a) the offer constitutes an offer of suitable employment in relation to the employee; (b) the offer constitutes an offer of employment no less favourable to the employee than hitherto; and (c) the renewal or re-engagement would take effect on or before the relevant date, and the employee has unreasonably refused that offer. (3) Where the relevant date falls on a rest day or holiday, the references in subsections (1)(b) and (2)(c) to the relevant date shall be construed as references to the next day after that rest day or holiday. (4) An employee shall not be entitled to remedies under this Part by reason of dismissal where, having been given notice of the termination of his contract of employment by his employer in accordance with section 6, he leaves the service of his employer before the expiration of that notice unless he so leaves— (a) with the prior consent of the employer; or (b) after having made a payment in lieu to the employer in accordance with section 7. (5) Subsections (1) to (3) shall not apply where an employee is dismissed in any of the circumstances mentioned in section 32A(1)(c).
32D. Change of ownership of business
(1) This section shall have effect where— (a) a change occurs (whether by virtue of a sale or other disposition or by operation of law) in the ownership of a business for the purposes of which a person is employed, or of a part of such a business; and (b) in connection with that change the person by whom the employee is employed immediately before the change occurs (in this section referred to as the previous owner) terminates the employee’s contract in accordance with section 6 or 7. (2) If, by agreement with the employee, the person who immediately after the change occurs is the owner of the business or of the part of the business in question, as the case may be (in this section referred to as the new owner), renews the employee’s contract of employment (with the substitution of the new owner for the previous owner) or re-engages him under a new contract of employment,section 32B(3) shall have effect as if the renewal or re-engagement had been a renewal or re-engagement by the previous owner (without any substitution of the new owner for the previous owner). (3) If the new owner offers to renew the employee’s contract of employment (with the substitution of the new owner for the previous owner) or to re-engage him under a new contract of employment, but the employee refuses the offer, section 32C(1) or (2) (as the case may be) shall have effect, subject to subsection (4), in relation to that offer and refusal as it would have had effect in relation to the like offer made by the previous owner and a refusal of that offer by the employee. (4) For the purposes of the operation, in accordance with subsection (3), of section 32C(1) or (2) in relation to an offer made by the new owner— (a) the offer shall not be treated as one whereby the provisions of the contract as renewed, or of the new contract, as the case may be, would differ from the corresponding provisions of the contract as in force immediately before the dismissal by reason only that the new owner would be substituted for the previous owner as the employer; and (b) no account shall be taken of that substitution in determining whether the refusal of the offer was unreasonable. (5) This section shall have effect (subject to the necessary modifications) in relation to a case where— (a) the person by whom a business, or part of a business, is owned immediately before a change is one of the persons by whom (whether as partners, trustees or otherwise) it is owned immediately after the change; or (b) the persons by whom a business, or part of a business, is owned immediately before a change (whether as partners, trustees or otherwise) include the person or one or more of the persons by whom it is owned immediately after the change, as this section has effect where the previous owner and the new owner are wholly different persons. (6) Nothing in this section shall be construed as requiring any variation of a contract of employment by agreement between the parties to be treated as constituting a termination of the contract.
32E. Associated companies
(1) Where the employer is a company, any reference in section 32B, 32C or 32D to renewal or re-engagement by the employer shall be construed as a reference to renewal or re-engagement by that company or by any associated company, and any reference in section 32B, 32C or 32D to an offer made by the employer shall be construed as including a reference to an offer made by an associated company. (2) Subsection (1) shall not affect the operation of section 32D in a case where the previous owner and the new owner are associated companies; and where that section applies, subsection (1) shall not apply. (3) For the purposes of this section, 2 companies shall be taken to be associated companies if one is a subsidiary of the other, or both are subsidiaries of a third company, and associated company shall be construed accordingly. (4) In this section—company (公司) has the meaning given by section 2(1) of the Companies Ordinance (Cap. 622); subsidiary (附屬公司) has the meaning given by section 15 of the Companies Ordinance (Cap. 622) for the purposes of that Ordinance. (Replaced 28 of 2012 ss. 912 & 920)
32F. Relevant date
For the purposes of and subject to this Part, relevant date (有關日期)— (a) in relation to the termination of employment of an employee, has the same meaning as in section 2(1); and (b) in relation to the employer varying the terms of the contract of employment of an employee, means the date on which that variation takes effect.
32G. Death of employer or employee
For the purposes of this Part, Part I of the Eighth Scheduleshall have effect in relation to the death of an employer and Part II of that Schedule shall have effect in relation to the death of an employee.
32H.
(Repealed 51 of 2000 s. 4)
32I. Claim for remedies
Notwithstanding anything in this Part, an employee shall not be entitled to remedies under this Part unless— (a) the employee has made a claim for such remedies by notice in writing given to the employer before the end of the period of 3 months beginning with the relevant date, or within such extended period not exceeding 6 months as the Commissioner may permit; or (b) a question as to the right of the employee to such remedies has been made the subject of a claim filed with the Registrar of the Labour Tribunal in accordance with Part 4 of the Labour Tribunal Ordinance (Cap. 25) before the end of the period of 9 months beginning with the relevant date. (Amended E.R. 1 of 2013)
32J. Jurisdiction of Labour Tribunal
(1) Subject to this section, the Labour Tribunal established under the Labour Tribunal Ordinance (Cap. 25) shall have jurisdiction to inquire into, hear and determine a claim made by an employee under this Part in accordance with this Part and with that Ordinance. (2) The Labour Tribunal does not have jurisdiction to inquire into, hear or determine a claim under this Part if the relevant date in respect of that claim falls more than 9 months before the date on which the claim is filed with the Registrar of the Labour Tribunal, unless the parties to the claim, by a memorandum signed by them and filed with the Registrar, have agreed that the Tribunal shall have jurisdiction. (Amended 21 of 2018 s. 3) (3) A claim under this Part over which the Labour Tribunal has jurisdiction may be transferred under section 10 of the Labour Tribunal Ordinance (Cap. 25) but may be so transferred only to the Court of First Instance or the District Court. (Replaced 21 of 2018 s. 3) (4) The Court of First Instance or the District Court may, for a claim so transferred to it, make all or any of the orders and awards provided for under sections 32N, 32O, 32P, 32PA and 32PC. (Added 21 of 2018 s. 3) (5) Apart from a transfer under subsection (3), neither the Court of First Instance nor the District Court has jurisdiction over a claim under this Part. (Added 21 of 2018 s. 3)
32K. Reasons for the dismissal or the variation of the terms of the contract of employment
For the purposes of this Part, it shall be a valid reason for the employer to show that the dismissal of the employee or the variation of the terms of the contract of employment with the employee was by the reason of— (a) the conduct of the employee; (b) the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do; (c) the redundancy of the employee or other genuine operational requirements of the business of the employer; (d) the fact that the employee or the employer or both of them would, in relation to the employment, be in contravention of the law, if the employee were to continue in the employment of the employer or, were to so continue without that variation of the terms of his contract of employment; or (e) any other reason of substance, which, in the opinion of the court or the Labour Tribunal, was sufficient cause to warrant the dismissal of the employee or the variation of the terms of that contract of employment.
32L. Determination of claim
(1) On a claim for remedies under this Part, in determining whether or not an employer has shown that he has a valid reason for the dismissal of an employee or for the variation of the terms of the contract of employment with an employee within the meaning of section 32K, the court or the Labour Tribunal shall take into consideration the circumstances of the claim. (2) Without affecting the generality of subsection (1), the circumstances of a claim include the length of time that the employee has been employed under that contract of employment with the employer as compared to the length of qualifying service required for the right, benefit or protection conferred or to be conferred upon the employee by this Ordinance which is capable of being extinguished or reduced by means of the dismissal or the variation of the terms of the contract of employment.
32M. Remedies for employment protection
(1) On a claim for remedies under this Part if the court or Labour Tribunal finds that the employer has not shown a valid reason as specified under section 32K, the employer is deemed to intend to extinguish or reduce any right, benefit or protection conferred or to be conferred upon the employee by this Ordinance and the dismissal or the variation is deemed to be unreasonable and the court or Labour Tribunal may make an order under section 32Nor an award of terminal payments under section 32O. (2) On a claim for remedies under this Part if, in relation to the dismissal of an employee in any of the circumstances mentioned in section 32A(1)(c), the court or Labour Tribunal finds that the employer has not shown a valid reason for that dismissal within the meaning of section 32K and, upon that finding the employer, after having been given an opportunity to do so, refuses or fails to show that the dismissal is not in contravention of— (a) section 15(1), 21B(2)(b), 33(4B) or 72B(1); (b) section 6 of the Factories and Industrial Undertakings Ordinance (Cap. 59); or (c) section 48 of the Employees’ Compensation Ordinance (Cap. 282), then the court or Labour Tribunal may make an order under section 32N or an award of terminal payments under section 32O and, in the case where the court or Labour Tribunal does not make an order under section 32N, the court or Labour Tribunal may, whether or not it has made an award of terminal payments under section 32O, make an award of compensation under and in accordance with section 32P to be payable to the employee by the employer as it considers just and appropriate in the circumstances. (3) An order or award made under this Part shall not affect the civil or criminal liability of an employer otherwise than under this Part in respect of the dismissal or the variation of the terms of the contract of employment.
32N. Order for reinstatement and re-engagement
(1) Subject to this section and to section 32M, an order under this section may be an order for reinstatement (in accordance with subsections (4) and (5)) or an order for re-engagement (in accordance with subsections (6) and (7)) as the court or Labour Tribunal may decide and on terms which it considers just and appropriate in the circumstances. (2) The court or Labour Tribunal shall first consider whether to make an order for reinstatement, and if it decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement. (3) If the court or Labour Tribunal finds that an order for reinstatement or re-engagement is appropriate— (a) it must explain to the employer and the employee what order for reinstatement or re-engagement may be made; and (b) it must ask the employer and the employee whether they agree to the making of such an order. (Replaced 21 of 2018 s. 4) (3A) If the employer and the employee express agreement, the court or Labour Tribunal must make an order for reinstatement or re-engagement pursuant to the agreement. (Added 21 of 2018 s. 4) (3B) For a dismissal of an employee in any of the circumstances mentioned in section 32A(1)(c), even though only the employee expresses agreement, the court or Labour Tribunal must make an order for reinstatement or re-engagement if it finds that reinstatement or re-engagement of the employee by the employer is reasonably practicable. (Added 21 of 2018 s. 4) (3C) Before making a finding for the purposes of subsection (3B), the court or Labour Tribunal— (a) must give an opportunity to the employer and the employee to present each of their cases in respect of the making of an order for reinstatement or re-engagement; and (b) must take into account the circumstances of the claim, including— (i) the circumstances of the employer and of the employee; (ii) the circumstances surrounding the dismissal; (iii) any difficulty that the employer might face in the reinstatement or re-engagement of the employee; and (iv) the relationship between the employer and the employee, and between the employee and other persons with whom the employee has connection in relation to the employment. (Added 21 of 2018 s. 4) (3D) Before making a finding for the purposes of subsection (3B), the court or Labour Tribunal may, with the agreement of the employer and the employee, request the Commissioner to provide to it a report containing information that— (a) relates to the circumstances of the claim; and (b) was obtained in connection with the conciliation held under the Labour Tribunal Ordinance (Cap. 25). (Added 21 of 2018 s. 4) (3E) On receiving the request, the Commissioner must prepare the report, seek the agreement of the employer and the employee to the contents of the report and— (a) if the employer and the employee agree to the contents of the report—provide the report to the court or Labour Tribunal; or (b) if the employer or the employee fails to agree to the contents of the report—inform the court or Labour Tribunal of the failure and the fact that the report cannot be provided to it. (Added 21 of 2018 s. 4) (4) An order for reinstatement is an order that the employer shall treat the employee in all respects as if he had not been dismissed or as if there had been no such variation of the terms of the contract of employment. On making the order, the court or Labour Tribunal must specify the terms on which the employee must be reinstated, including— (Amended 21 of 2018 s. 4) (a) any rights and privileges, including seniority and pension rights, which must be restored to the employee; (b) a term to the effect that, for reckoning the employee’s existing and future entitlements under this Ordinance and the employee’s contract of employment, the continuity of the employee’s period of employment is not to be treated as broken by— (i) if the contract was terminated by the employer by payment in lieu of notice—the employee’s absence from work between the last date on which the employee rendered services to the employer and the date of reinstatement; or (ii) in any other case—the employee’s absence from work between the relevant date and the date of reinstatement; (Replaced 21 of 2018 s. 4) (c) the date by which the employee must be reinstated; and (Replaced 21 of 2018 s. 4) (d) a term to the effect that, if the employee is not reinstated on the terms specified in the order by the date so specified, the employer must pay to the employee the sums mentioned in section 32NA(1) by the date specified for that purpose in the order. (Replaced 21 of 2018 s. 4) (5) On the making of an order for reinstatement, if the court or Labour Tribunal considers just and appropriate in the circumstances, it may specify— (a) any amount payable by the employer to the employee in respect of any arrears of pay and statutory entitlements under this Ordinance which the employee might reasonably be expected to have had but for the dismissal or the variation of the terms of the contract of employment, for the period between the relevant date and the date of reinstatement; or (b) any amount to be restored by the employee to the employer in respect of any statutory entitlements that the employee has been paid by the employer under this Ordinance and that the employee should not have had upon reinstatement. (6) An order for re-engagement is an order that the employer must re-engage the employee in an employment on terms comparable to his original terms of the employment or in other suitable employment. On making the order, the court or Labour Tribunal must specify the terms on which the employee must be re-engaged, including—(Amended 21 of 2018 s. 4) (a) (Repealed 21 of 2018 s. 4) (b) the nature of the employment; (c) the remuneration for the employment; (d) any rights and privileges, including seniority and pension rights, which must be restored to the employee; (e) a term to the effect that, for reckoning the employee’s existing and future entitlements under this Ordinance and the employee’s contract of employment, the continuity of the employee’s period of employment is not to be treated as broken by— (i) if the contract was terminated by the employer by payment in lieu of notice—the employee’s absence from work between the last date on which the employee rendered services to the employer and the date of re-engagement; or (ii) in any other case—the employee’s absence from work between the relevant date and the date of re-engagement; (Replaced 21 of 2018 s. 4) (f) the date by which the employee must be re-engaged; and (Replaced 21 of 2018 s. 4) (g) a term to the effect that, if the employee is not re-engaged on the terms specified in the order by the date so specified, the employer must pay to the employee the sums mentioned in section 32NA(1) by the date specified for that purpose in the order. (Replaced 21 of 2018 s. 4) (7) On the making of an order for re-engagement, if the court or Labour Tribunal considers just and appropriate in the circumstances, it may specify— (a) any amount payable by the employer to the employee in respect of any arrears of pay and statutory entitlements under this Ordinance which the employee might reasonably be expected to have had but for the dismissal or the variation of the terms of the contract of employment, for the period between the relevant date and the date of re-engagement; or (b) any amount to be restored by the employee to the employer in respect of any statutory entitlements that the employee has been paid by the employer under this Ordinance and that the employee should not have had upon re-engagement. (8) (Repealed 21 of 2018 s. 4) (9) This section has effect subject to sections 32PA, 32PB and 32PC. (Added 21 of 2018 s. 4) (10) If the employer pays the sums mentioned in section 32NA(1) by the date specified for that purpose in an order for reinstatement or re-engagement (as varied under section 32PA or 32PC, if applicable), the employee is not entitled to enforce the other terms of the order (as so varied, if applicable). (Added 21 of 2018 s. 4)
32NA. Sums specified for purposes of section 32N(4)(d) and (6)(g)
(1) For the purposes of section 32N(4)(d) and (6)(g), the following sums are payable by the employer to the employee— (a) the sums that would have been awarded if neither an order for reinstatement nor an order for re-engagement had been made, namely— (i) the amount of terminal payments that would have been awarded under section 32O; and (ii) if the employee has been dismissed in any of the circumstances mentioned in section 32A(1)(c)—the amount of compensation that would have been awarded under section 32P; and (b) if the employee has been dismissed in any of the circumstances mentioned in section 32A(1)(c), a sum that is the lesser of the following— (i) $72,500; (ii) 3 times the employee’s average monthly wages as calculated in accordance with section 32NB. (2) In determining the amounts mentioned in subsection (1)(a)(i) and (ii), the court or Labour Tribunal must not take into account the sum mentioned in subsection (1)(b). (3) The Commissioner may, by notice published in the Gazette, amend subsection (1)(b)(i) by substituting another amount for the amount specified in that subsection. (Added 21 of 2018 s. 5)
32NB. Calculation of average monthly wages for section 32NA
(1) This section applies in calculating an employee’s average monthly wages for the purposes of section 32NA(1)(b)(ii). (2) In subsections (3), (4) and (5)— wages (工資) includes a sum of money paid by an employer in respect of any of the following days—(a) a day of maternity leave, a day of paternity 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 the employer; (c) a normal working day on which the employee is not provided with work by the employer; (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). (3) The employee’s average monthly wages are the average monthly wages earned by the employee during— (a) the period of 12 months immediately before the date of termination of the contract of employment; or (b) if the employee has been employed by the employer for a period shorter than 12 months immediately before the date of termination of the contract of employment—the shorter period. (4) The average monthly wages are to be calculated without regard to— (a) any period (excluded period) during the 12-month period or shorter period for which the employee was not paid wages or full wages because of— (i) any maternity leave, paternity leave, rest day, sickness day, holiday or annual leave taken by the employee; (ii) any leave taken by the employee with the agreement of the employer; (iii) the employee’s not being provided with work by the employer on a normal working day; or (iv) the employee’s 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 the employee for the excluded period. (5) To avoid doubt, if the amount of the wages paid to an employee in respect of a day covered by the definition of wages in subsection (2) is only a fraction of the amount earned by the employee on a normal working day, the employee’s average monthly wages are to be calculated without regard to the wages and the day. (6) Despite subsection (3), if for any reason it is impracticable to calculate an employee’s average monthly wages in the manner provided in that subsection, the amount may be calculated by reference to— (a) the wages earned by a person who was employed at the same work by the same employer during the period of 12 months immediately before the date of termination of the employee’s contract of employment; or (b) if there is no such person—the wages earned by a person who was employed in the same trade or occupation and at the same work in the same district during the period of 12 months immediately before the date of termination of the employee’s contract of employment. (Added 21 of 2018 s. 5)