香港労働法 Hong Kong Labor Issues #65 日本人のための香港労働問題研究：雇用条例 (Employment Ordinance)XIV-First Schedule:日本語版
香港雇用条例 日本語翻訳版
【原文】
Part XIV Miscellaneous
(Format changes— E.R. 3 of 2017)
66. Wages not to be attached
No order for the attachment of wages, or, in the case of an employee to whom Part IIA applies, any end of year payment or proportion thereof, of an employee shall be made by any court: Provided that a civil debt due to the Government under any enactment may be recovered from the wages of an employee by attachment or otherwise. (Amended 48 of 1984 s. 29; 56 of 2000 s. 3)
67. Application for apprehension of absconding employer
(1) If an employer or former employer is about to leave Hong Kong with intent to evade payment of— (Amended 48 of 1984 s. 30) (a) any wages earned by any of his employees and owed by the employer, whether or not the payment of such wages is yet due; or (b) any other moneys owed by the employer under a contract of employment to any of his employees, any of his employees may apply to a District Judge to issue a warrant in accordance with the Second Schedule, and in respect of any such application the Second Schedule shall apply. (2) No person shall make an application under subsection (1) unless he has reasonable grounds for making such application. (Added 71 of 1970 s. 5)
67A. Amendment of limitation imposed on severance payment and long service payment
The Legislative Council may, by resolution published in the Gazette, amend the references to $22,500 in sections 31G and 31V and in this section by substituting a different amount specified in the resolution. (Replaced 41 of 1990 s. 22. Amended L.N. 264 of 1995)
68. Amendment of forms
The Chief Executive may, by order published in the Gazette, amend Part II of the Second Schedule. (Added 44 of 1971 s. 5. Amended 56 of 2000 s. 3)
69. Saving as to existing contracts of service
Save as is otherwise provided in this section, any agreement or contract of employment entered into between an employer and an employee, which is valid and in force at the commencement of this Ordinance, shall continue to be in force and, subject to any express conditions contained in any such agreement or contract, the parties thereto shall be subject to and entitled to the benefit of the provisions of this Ordinance: Provided that where any express condition in the agreement or contract is contrary to the provisions of this Ordinance, the express condition shall be void.
70. Contracting out
Any term of a contract of employment which purports to extinguish or reduce any right, benefit or protection conferred upon the employee by this Ordinance shall be void. (Added 5 of 1970 s. 8)
71. Saving as to schemes of medical treatment under repealed Industrial Employment (Holidays with Pay and Sickness Allowance) Ordinance
Any scheme of medical treatment which is operated by an employer and is recognized by the Director under section 8 of the repealed Industrial Employment (Holidays with Pay and Sickness Allowance) Ordinance* shall continue in force and have effect as if it were operated and approved under the corresponding provision in this Ordinance. (Added 39 of 1973 s. 7)
Editorial Note: * See Chapter 333, 1964 Ed.
72. Powers of officers
(1) The Commissioner, or any public officer authorized by the Commissioner in writing for the purpose and on production of that authority, may— (a) subject to subsection (2), enter, inspect and examine at all reasonable times, by day and night, any premises or place, in which he knows or has reasonable cause to believe that persons are employed; (b) require the production of any register, record, form or other document required to be kept under this Ordinance (and, in the case of a record which includes particulars required to be included under section 49A(3)(ea), require that the particulars under section 49A(3)(a), (d), (e), (ea) and (f) are produced in a single document) and inspect, examine and copy the same; (Amended 15 of 2010 s. 21) (c) make such examination and inquiry as may be necessary to ascertain whether the requirements of this Ordinance are complied with, and seize anything which may appear to be evidence of an offence against this Ordinance; (d) examine, either alone or in the presence of any other person, as he thinks fit, respecting matters under this Ordinance, any person whom he finds in any industrial undertaking within the meaning of the Factories and Industrial Undertakings Ordinance (Cap. 59), or whom he has reasonable cause to believe has been within the preceding 2 months employed in any industrial undertaking within the meaning of the Factories and Industrial Undertakings Ordinance (Cap. 59), or require any such person to be so examined and to sign a declaration of the truth of the matters respecting which he has been so examined; (Added 10 of 1980 s. 6) (e) require any person who employs or has employed any young person or child in an industrial undertaking within the meaning of the Factories and Industrial Undertakings Ordinance (Cap. 59) or any agent or servant of any such employer to give to him all information in the possession of such person, agent or servant with reference to such young person or child and to the labour conditions and treatment of every young person or child employed by such employer; (Added 10 of 1980 s. 6. Amended 7 of 2001 s. 10) (f) require the posting up, in such place and manner and for such period as he may direct, of any notice or form in connection with the provisions of this Ordinance or of any Ordinance specified in the Fourth Schedule; (Added 10 of 1980 s. 6. Amended 48 of 1984 s. 31) (g) exercise any other powers which may be conferred on him by any regulations made under this Ordinance. (Added 10 of 1980 s. 6) (2) No premises or part of a premises which is used for dwelling purposes shall be entered under subsection (1) except by virtue of a warrant issued by a magistrate, where such magistrate is satisfied by information on oath that there is reasonable ground for suspecting that an offence against this Ordinance has been, is being or is about to be committed in such premises or part or that there is in such premises or part anything likely to be or contain evidence of such offence. (3) An officer exercising any power conferred on him by subsection (1) in relation to any industrial undertaking within the meaning of the Factories and Industrial Undertakings Ordinance (Cap. 59) may take with him any person whom he may reasonably need to assist him in carrying out his duties under this Ordinance and in particular may, for his assistance, take persons who have been engaged by the Commissioner, on account of their special expertise, to advise the Labour Department on any matters necessary for carrying out the purposes of this Ordinance. (Added 10 of 1980 s. 6) (4) A person who accompanies an officer pursuant to subsection (3)— (a) may give to the officer such assistance in the exercise of any power conferred on him by subsection (1) as the officer may reasonably require; (b) shall be deemed to be a public officer for the purposes of sections 72A and 72B. (Added 10 of 1980 s. 6) (Added 55 of 1979 s. 2)
72A. Duty of public officers not to disclose source of complaint, etc.
(1) Save with the consent of the person who has made the complaint or as provided in subsection (4), no public officer shall disclose to any person, other than another public officer in the course of official duty, the name or identity of any person who has made a complaint alleging a contravention of this Ordinance or as a result of which a contravention of this Ordinance has come to his notice or to the notice of any other public officer. (2) No public officer shall disclose to an employer or his agent or servant that a visit to the place of employment maintained by that employer was made in consequence of the receipt of any such complaint as is referred to in subsection (1). (3) Save as provided in subsection (4), where, arising out of, or in connection with, the enforcement of this Ordinance, any manufacturing or commercial secret or any working process comes to the knowledge of a public officer, such officer shall not at any time, and notwithstanding that he is no longer a public officer, disclose such secret or process to any person. (4) Where in any proceedings a court or a magistrate considers that justice so requires, the court may order the disclosure of the name or identity of any person who has made any such complaint as is referred to in subsection (1) or the disclosure of any such secret or process as is referred to in subsection (3). (Added 10 of 1980 s. 7)
72B. Employment not to be terminated, etc. by reason of fact that employee has given evidence in proceedings under Ordinance, etc.
(1) No employer shall terminate, or threaten to terminate, the employment of, or in any way discriminate against, any of his employees by reason of the fact that the employee has— (Amended 61 of 1993 s. 9) (a) given evidence, or agreed to give evidence, in any proceeding for the enforcement of this Ordinance; (Amended 29 of 1992 s. 3) (b) given information to a public officer in any inquiry made by such officer for the purposes of or in connection with the enforcement of this Ordinance; (c) given evidence, or agreed to give evidence, in any proceeding relating to an accident to an employee arising out of and in the course of his employment or for the breach of a statutory duty in relation to the safety of persons at work; or (Added 29 of 1992 s. 3) (d) given information to a public officer in any inquiry made by such officer for the purposes of or in connection with an accident to an employee arising out of and in the course of his employment or for the breach of a statutory duty in relation to the safety of persons at work. (Added 29 of 1992 s. 3) (2) Where an employer is convicted of an offence under section 63A(5) in respect of an action prohibited by this section, the court or magistrate before which the conviction is obtained may, in addition to any fine that may be imposed, order the employer to pay as compensation to the employee who was the victim of the offence, such amount as the court or magistrate considers appropriate having regard to the circumstances of the case. (Added 61 of 1993 s. 9. Amended 103 of 1995 s. 23) (Added 10 of 1980 s. 7)
72C. Presumptions
In any prosecution under this Ordinance— (a) where the age of any person at any time is material for the purposes of any provision of this Ordinance, his age at the material time shall be deemed to be or have been that which appears to the court or magistrate, after considering any available evidence, to be or to have been his age at that time; (b) if the charge alleges the contravention of any of the provisions of this Ordinance prohibiting or controlling the employment of young persons or children and the defendant in such prosecution is the employer at the place of employment in or in respect of which the offence is alleged to have been committed, it shall, until the contrary is proved, be presumed that any young person or child to whom the charge relates and who was employed in the place of employment on the day on which the offence is alleged to have been committed was employed therein on that day by such employer. (Amended 7 of 2001 s. 11) (Added 10 of 1980 s. 7)
73. Regulations
(1) The Chief Executive in Council may make regulations for all or any of the following purposes— (Amended 56 of 2000 s. 3) (a) prohibiting or controlling the employment of persons or any class of persons in any industry, occupation or trade; (b) requiring records to be kept and forms to be maintained in respect of employees or any class of employees employed in any industry, occupation or trade; (c) imposing obligations for securing compliance with the provisions of this Ordinance upon employers, their agents or servants, and upon employees; (d) imposing duties and liabilities on employers and employees; (e) defining the functions, duties and powers of public officers appointed or authorized for the purposes of this Ordinance; (f) exempting any industry, occupation or trade, or any class or part of any industry, occupation or trade, from the operation of this Ordinance or any provision thereof; (g) providing that this Ordinance or any provision thereof shall not apply, or may be modified, in relation to any class of persons; (h) (Repealed 56 of 2000 s. 3) (ha) providing that, where the Commissioner is satisfied that work in any industrial undertaking within the meaning of the Factories and Industrial Undertakings Ordinance (Cap. 59), or class or description thereof, is subject to seasonal or other special pressure, he may by order published in the Gazette as respects any such industrial undertaking, or class or description thereof, increase for any employee during any period of such pressure the hours of work or period of employment specified in relation to that employee in regulations made under this Ordinance for a period in any year not exceeding that specified in the order; (Added 10 of 1980 s. 8. Amended 7 of 2001 s. 12) (hb) providing that— (i) any document purporting to be a copy of any document or notice and purporting to be signed by a person or his duly authorized agent shall be admitted in evidence in proceedings before any court or magistrate on its production by a public officer without further proof; and (ii) until the contrary is proved, the court or magistrate before which such document is produced shall presume that the document is a true copy and that it is signed by that person or his duly authorized agent; and (iii) the document shall be conclusive evidence of the facts stated therein; (Added 10 of 1980 s. 8) (hc) providing that any person who works in any place of employment at any kind of work whatsoever incidental to or connected with the process, trade or business for which the place of employment is used shall, save as may be provided otherwise in the regulations, be deemed to be employed therein for the purposes of any regulations made under this Ordinance or of any proceedings thereunder; (Added 10 of 1980 s. 8) (i) generally, carrying into effect the provisions of this Ordinance. (2) The Commissioner may in writing, in such cases as he thinks fit and for such period and subject to such conditions as he may specify, exempt any person or class of persons from any regulations made under this section. (3) (Repealed 24 of 1988 s. 2 ) (Added 55 of 1979 s. 2. Amended 10 of 1988 s. 8)
74. Penalty for contravention of regulations
Regulations under this Ordinance may provide that a contravention thereof shall be an offence and may provide penalties therefor not exceeding a fine at level 6. (Added 24 of 1988 s. 2. Amended 103 of 1995 s. 24)
75. Transitionals for Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance 2006
(1) A reference in this Ordinance to a certificate or medical certificate issued by a registered Chinese medicine practitioner— (a) does not include a certificate or medical certificate so issued before the commencement＊ of the 2006 Ordinance; and (b) does not include a certificate or medical certificate so issued on or after the commencement of the 2006 Ordinance to the extent— (i) that it relates to any period of days or hours which ends before that commencement; or (ii) if it relates to any period of days or hours which occurs partly before that commencement, that it relates to such part of the period occurring before that commencement. (2) For the purposes of this section— (a) 2006 Ordinance (《2006年條例》) means Part 2 of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance 2006 (16 of 2006); (b) a certificate or medical certificate relates to a period of days or hours if the certificate or medical certificate is produced for the purposes of— (i) an employee taking that period of days as maternity leave under Part III or sickness days under Part VII; or (ii) having that period of hours counted as hours in which an employee has worked by virtue of paragraph 3(2)(a) of the First Schedule. (Added 16 of 2006 s. 9)
Editorial Note: ＊ Commencement date: 1 December 2006.
76. Application of this Ordinance as amended by the Employment (Amendment) Ordinance 2007
(1) This Ordinance as amended by the Employment (Amendment) Ordinance 2007 (7 of 2007) (amending Ordinance) applies to contracts of employment entered into on or after the date of commencement＊ of the amending Ordinance (commencement date). (2) Where an employee’s contract of employment was entered into before the commencement date and the date of termination of the contract falls on or after the commencement date, this Ordinance as amended by the amending Ordinance applies to the calculation of the following payments— (a) any payment in lieu of notice or sum payable by or to the employee under Part II; (b) any sum payable to the employee under section 15(2); (c) any sum payable to the employee under section 33(4BA) or (4C); (d) any sum payable to the employee under section 40A(2); (e) any sum payable to the employee under section 41D. (3) Where an employee’s contract of employment was entered into before the commencement date and any end of year payment or proportion thereof payable to the employee under Part IIA becomes due on or after the commencement date, this Ordinance as amended by the amending Ordinance applies to the calculation of the end of year payment or proportion thereof. (4) Where an employee’s contract of employment was entered into before the commencement date and any maternity leave pay, sickness allowance, holiday pay or annual leave pay is payable by the employer to the employee in respect of a wage period the last day of which falls on or after the commencement date, this Ordinance as amended by the amending Ordinance applies to the calculation of the maternity leave pay, sickness allowance, holiday pay or annual leave pay. (Added 7 of 2007 s. 17)
Editorial Note: * Commencement date: 13 July 2007 (sections 1 to 15 and 17); and 13 January 2008 (section 16).
77. Transitional provisions relating to Employment (Amendment) (No. 2) Ordinance 2018
(1) A specified provision applies to a claim by an employee for remedies under Part VIA if the material date for the employee falls on or after the specified date for the specified provision. (2) Subsection (1) applies regardless of whether or not the employee’s contract of employment was entered into before that specified date. (3) A former provision applies to a claim by an employee for remedies under Part VIA if the material date for the employee falls before the specified date for the former provision. (4) Subsection (3) applies regardless of whether or not proceedings in respect of the claim have begun before that specified date. (5) In this section— former provision (原有條文) means section 32J, 32N, 32O, 43N, 43P or 43R, or any part of the section, as was in force immediately before it was amended by the Employment (Amendment) (No. 2) Ordinance 2018 (21 of 2018); material date (關鍵日期) means—(a) in relation to an employee dismissed in any of the circumstances mentioned in section 32A(1)(a) or (c)— (i) if the employer has notified the employee of the dismissal before it took effect—the date on which the employee was notified; or (ii) in any other case—the date on which the dismissal took effect; or (b) in relation to an employee the terms of whose contract of employment have been varied in the circumstances mentioned in section 32A(1)(b)— (i) if the employer has notified the employee of the variation before it took effect—the date on which the employee was notified; or (ii) in any other case—the date on which the variation took effect; specified date (指明日期)—(a) in relation to a former provision, means the commencement date* of the provision of the Employment (Amendment) (No. 2) Ordinance 2018 (21 of 2018) that— (i) repeals the former provision; or (ii) amends the former provision to become a specified provision; or (b) in relation to a specified provision, means the commencement date* of the provision of that Ordinance that— (i) adds the specified provision; or (ii) amends a former provision to become the specified provision; specified provision (指明條文) means section 32J, 32N, 32NA, 32NB, 32O, 32PA, 32PB, 32PC, 43N, 43P or 43R, or any part of the section. (Added 21 of 2018 s. 12)
Editorial Note: * Commencement date: 19 October 2018.
78. Transitional provisions relating to Employment (Amendment) Ordinance 2020
The transitional provisions contained in Schedule 10 have effect. (Added 13 of 2020 s. 12)
First Schedule
[ss. 3 & 75](Amended 16 of 2006 s. 10)
Continuous Employment
(Format changes—E.R. 3 of 2017) 1.(a)The provisions of this Schedule are to ascertain whether or not any contract of employment is a “continuous contract” for the purposes of this Ordinance.(b)In the case of a contract of employment existing at the commencement of this Ordinance, such period of employment next preceding the date of commencement of the Ordinance as may be necessary shall be taken into account in order to ascertain whether or not the contract of employment is a continuous contract. 2. Subject to the following provisions, where at any time an employee has been employed under a contract of employment during the period of 4 or more weeks next preceding such time he shall be deemed to have been in continuous employment during that period. 3. (1) For the purposes of paragraph 2, no week shall count unless the employee has worked for 18 hours or more in that week, and in determining whether he has worked in any hour the provisions of sub-paragraph (2) shall apply. (2) If in any hour the employee is, for the whole or part of the hour— (a) incapable of work in consequence of sickness or injury; provided that any such incapability in excess of 48 hours is supported by a certificate issued by a registered medical practitioner, registered Chinese medicine practitioner or registered dentist; or (Amended 5 of 1995 s. 11; 16 of 2006 s. 10) (b) absent from work in circumstances such that, by law, mutual arrangement or the custom of the trade, business or undertaking, he is regarded as continuing in the employment of his employer for any purpose, then, save as provided in paragraph 4, that hour shall count as an hour in which he has worked. 4. Where an employee is absent from work for the whole or part of any hour— (a) because of a strike (which is not illegal) in which he takes part; or (b) because of a lock-out by his employer, that hour shall not count as an hour in which he has worked, but the continuity of his period of employment shall not be treated as broken by any such absence. 5. If a trade, business or undertaking is transferred from one person to another, the period of employment of an employee in the trade, business or undertaking at the time of the transfer shall count as a period of employment with the transferee, and the transfer shall not break the continuity of the period employment. 6. For the purposes of this Schedule, any reference to hours in which an employee has worked shall mean hours in which he has worked for his employer whether or not the hours were worked under the same or another contract of employment with that employer and whether or not they were consecutive hours. (Replaced 41 of 1990 s. 23) 7. In this Schedule, unless the context otherwise requires— lock-out (閉廠) and strike (罷工), respectively, have the meanings assigned to them in the Trade Unions Ordinance (Cap. 332); week (星期) means a week ending with Saturday. (Amended 5 of 1970 s. 9; 71 of 1970 s. 6; 41 of 1990 s. 23)
【日本語】
Part XIV その他
(フォーマットの変更 - 2017年編集修正記録第3号)
66. 給料の差押えに関する規定
裁判所は、従業員の賃金、またはIIAが適用される従業員の場合には、従業員の年末支払金またはその一部の差押えを命じてはならない。
ただし、いずれかの制定法に基づき政府に支払うべき民事上の債務は、従業員の賃金の差押え等により回収することができる。
(1984年に第48号第29条で改正、2000年に第56号第3条で改正）
67. 逃亡した雇用主の逮捕申請
(1)雇用主または元雇用主が以下の報酬の支払いを逃れる目的で香港を離れようとしている場合...(1984年に第48号第30条で改正)
(a)その従業員が稼いだ賃金（支払期限が到来しているか否かを問わない）、または
(b)その雇用主が雇用契約に基づいて支払うべきその他の金額。
その場合、その従業員は、地方裁判所の裁判官に、別表2に従って令状の発行を申請することができ、別表2の規定が当該申請に適用される。 (1998年に第25号第2条で改正）
(2)合理的な理由がない限り、第(1)項の申請を行ってはならない。
(1970年に第7号第5条を追加）
67A. 遣散費および長期服務金に関する制限の修正
立法会は、官報に掲載された決議により、第31G条、第31V条および本項で言及されている22,500ドルという金額を、決議で指定された別の金額に置き換えて修正することができる。
(1990年に第41号第22条に差し替え。 1995年に第264号法律公告で改正; 2000年に第56号第3条で改正)