What is the definition of rest day in the Employment Ordinance? Can an employer force an employee to work on rest days?

Hong Kong’s labor legislation, the Employment Ordinance, protects the rights and interests of eligible employees, including the right to rest days. Many newcomers to the workplace, or even colleagues in the personnel department, may not be aware of the differences and related details of statutory holidays, rest days, and paid annual leave. Employers should also understand the definition of rest days in the Ordinance before proposing compensatory leave or leave with pay, to avoid being prosecuted, fined, and convicted at any time for violating labor laws.

What is a “rest day”?

There is a clear definition of rest days in Chapter 4 of the Employment Ordinance. Rest day means a period of not more than 24 consecutive hours in which an employee has the right not to work for the employer, and if the employee is employed under a continuous contract, they are entitled to not less than 1 day after every 7 working days. Rest days are calculated separately from paid holidays and statutory holidays for their rights and interests.

Depending on the type of business and type of work, rest days can be divided into fixed and non-fixed ones, which are generally designated by the employer and can be notified to the employee orally or in writing about the vacation schedule:

• Fixed rest days – Employers are only required to notify employees of rest day arrangements once.

• Irregular rest days – Employers are required to notify employees of the schedule of rest days within the month prior to the start of the month.

Forced/voluntary work on rest days?

According to the Ordinance, an employer shall not force an employee under a continuous contract to work on rest days. However, if the situation is due to a breakdown of business machines, factory equipment, or any emergency, the employer may require the employee to come to work on the same day. In the event of these emergencies, the employer should also make other arrangements to extend the rest day to the employee within 30 days and notify the employee within 48 hours of the original rest day.

And if the employee is over 18 years old and is not in an industrial undertaking, if he voluntarily works for the employer on rest days, it will not violate the law. Similarly, with the mutual consent of the employer and the employee, another rest day for the employee shall be designated and arranged within 30 days.

The rest day falls on a statutory holiday.

If a rest day coincides with a statutory holiday, 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.

Do you know how to calculate salary on rest days?

According to the current Employment Ordinance, are rest days paid or unpaid? This aspect still needs to be subject to the prior agreement between the employer and the employee, which is not clearly stipulated in the law.

However, when faced with the calculation of rest day pay, the Labor Department reminds employers that they should record and clearly keep the compensatory leave and related information taken by their employees to avoid unnecessary disputes in the future.

In addition, if there is any condition in the employment contract that requires the employee to work on rest days to receive the annual bonus or year-end payment, the contract provisions are also void.

Penalties for rest day violations?

Whenever an employer unreasonably refuses or does not allow an employee to take leave on a statutory, alternative, or substituted holiday, or withholds holiday pay, it constitutes an offense and is liable to prosecution upon conviction, and to the maximum fine is HKD50,00.

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