Statutory holidays are not the same as public holidays? Can statutory holidays be paid in lieu of leave?

Holidays are happy days, but many employers are prone to misunderstanding the description of them in the Employment Ordinance, especially when there is a shortage of manpower during the peak season and fail to pay attention to the relevant provisions and restrictions on statutory holidays, which makes employers mistakenly violate Hong Kong’s labor laws and be punished. In addition to the prosecution, it also harms the rights and interests of employees. This article will sort out the restrictions and guidelines on statutory holidays in the Employment Ordinance for employers and employees to protect the rights and interests of employers.

“Statutory holiday” is not the same as a “public holiday”?

Under the protection of the Hong Kong Employment Ordinance, generally continuously employed employees are entitled to paid annual leave, statutory holidays, and rest days.

However, many people may not know the difference between “statutory holidays” and “public holidays”. According to the “General Holidays Ordinance”, employees of any organization can enjoy 12 “statutory holidays” (increased to 13 days from 2022), commonly known as “red days” and “labor leave”; while employees of some organizations (including government agencies), some enterprises) can enjoy a paid “public holiday” on the 17th of each year, commonly known as “bank leave”.

13 statutory holidays from 2022

Effective from 1 January 2022, all employees are entitled to the following 13 statutory holidays regardless of their length of service:

1. January 1st

2. Lunar New Year’s Day

3. The second day of the Lunar New Year

4. The third day of the Lunar New Year

5. Qingming Festival

6. Labor Day (May 1)

7. Buddha’s Birthday (New from 2022) *

8. Dragon Boat Festival

9. Hong Kong Special Administrative Region Establishment Day (July 1)

10. The day after the Mid-Autumn Festival

11. Double Ninth Festival

12. National Day (October 1)

13. Winter or Christmas (at employer’s choice)

From 2024, a new statutory holiday will be added every two years. The new statutory holiday and the total number of statutory holidays each year are as follows:

• Beginning in 2024, the “first Sunday after Christmas” holiday will be added, bringing the total number of statutory holidays to 14;

• Starting from 2026, a new holiday of “Easter Monday” will be added, bringing the total number of statutory holidays to 15;

• Beginning in 2028, a new “Good Friday” holiday will be added, bringing the total number of statutory holidays to 16;

• Beginning in 2030, a new “Following Good Friday” holiday will be added, bringing the total number of statutory holidays to 17.

Arrangements for employees to work on statutory holidays

Due to different industries and types of work, if employers require employees to work during statutory holidays, they must arrange other holidays and notify employees of relevant holiday arrangements in advance according to the following deadlines:

• The alternative holiday is within 60 days before the statutory holiday, the employer must notify the employee at least 48 hours before the alternative holiday;

• If the alternative holiday falls within 60 days after the statutory holiday, the employer must notify the employee at least 48 hours before the statutory holiday;

• If the employer and the employee mutually agree, the employer may arrange a substitute holiday for the employee within a period of 30 days before or after a statutory holiday or an alternative holiday.

Can statutory holidays be paid in lieu of leave?

According to the current Employment Ordinance, employers cannot use any form of payment in lieu of granting statutory holidays to employees who have served continuously for 3 months. The so-called “buying leave” behavior and refusing to grant employees statutory holidays are prohibited by law. It is an offense upon conviction, and the maximum penalty is a fine of HK$50,000. If the employer further deducts the employee’s salary to offset the statutory holiday pay, the fine will be as high as HK$100,000, and the penalty is imprisonment for 1 year.

Does a statutory holiday fall on a rest day?

If a statutory holiday and a rest day just overlap, the employer needs to arrange for the employee to take the statutory holiday as a substitute on the next working day (the day following a non-holiday).

In addition, employers cannot require employees to take rest days on statutory holidays, because employees are entitled to the two dates.

The above information is for reference only. If you have any questions about entrepreneurship, labor law, or accounting, we welcome your inquiries.