Cap. 380 - Protection of Wages on Insolvency Ordinance

To provide for the establishment of a board to administer the Protection of Wages on Insolvency Fund, to provide for payment of monies from the Fund to employees whose employers become insolvent; and for matters connected therewith or incidental thereto. [19 April 1985] L.N. 100 of 1985(Format changes—E.R. 2 of 2012) Part 1 Preliminary 1. Short title This Ordinance may be cited as the Protection of Wages on Insolvency Ordinance. 2. Interpretation In this Ordinance, unless the context otherwise requires—applicant (申請人) means any person who would, on the winding up of a company, be entitled to priority under section 265(1)(b), (c), (ca), (cc) or (cd) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) or who would, on a bankruptcy, be entitled to priority under section 38(1)(b), (c), (ca), (cc) or (cd) of the Bankruptcy Ordinance (Cap. 6) other than a person whose employer is an individual and who is a member of the family of that employer and who dwells in the same dwelling as that employer; (Amended 48 of 1987 s. 2; 38 of 1989 s. 2; 7 of 2012 s. 3; 28 of 2012 ss. 912 & 920)bankruptcy petition (破產呈請) means a bankruptcy petition under the Bankruptcy Ordinance (Cap. 6);Board (委員會) means the Protection of Wages on Insolvency Fund Board established by section 3;Commissioner (處長) means the Commissioner for Labour;company (公司) means any body which is liable to be wound up under the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32); (Amended 28 of 2012 ss. 912 & 920)financial year (財政年度) means the financial year of the Fund fixed under section 8;Fund (基金) means the Protection of Wages on Insolvency Fund referred to in section 6;levy (徵費) has the meaning assigned to it by section 2 of the Business Registration Ordinance (Cap. 310);mandatory provident fund scheme (強制性公積金計劃) means a mandatory provident fund scheme registered under the Mandatory Provident Fund Schemes Ordinance (Cap. 485); (Added 4 of 1998 s. 12)occupational retirement scheme (職業退休計劃) means a scheme or arrangement under which benefits, based on length of service, are payable in respect of employees on retirement, death, incapacity or termination of service, but does not include a mandatory provident fund scheme; (Added 4 of 1998 s. 12) pay for untaken annual leave (未放年假薪酬) means any pay for untaken annual leave in respect of which an applicant— (a) would, on the winding up of a company, be entitled to priority under section 265(1)(cd) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32); or (Amended 28 of 2012 ss. 912 & 920) (b) would, on a bankruptcy, be entitled to priority under section 38(1)(cd) of the Bankruptcy Ordinance (Cap. 6); (Added 7 of 2012 s. 3) pay for untaken statutory holidays (未放法定假日薪酬) means any pay for untaken statutory holidays in respect of which an applicant—(a) would, on the winding up of a company, be entitled to priority under section 265(1)(cd) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32); or (Amended 28 of 2012 ss. 912 & 920)(b) would, on a bankruptcy, be entitled to priority under section 38(1)(cd) of the Bankruptcy Ordinance (Cap. 6); (Added 7 of 2012 s. 3)severance payment (遣散費) means a severance payment in respect of which an applicant would, on the winding up of a company, be entitled to priority under section 265(1)(ca) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) or would, on a bankruptcy, be entitled to priority under section 38(1)(ca) of the Bankruptcy Ordinance (Cap. 6), save that the amount specified in section 265(1)(ca) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) or section 38(1)(ca) of the Bankruptcy Ordinance (Cap. 6) (as the case may be) as the maximum amount in respect of which an applicant would be entitled to priority, or any amount substituted therefor under section 265(1B) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) or section 38(2B) of the Bankruptcy Ordinance (Cap. 6) (as the case may be), shall not apply; (Replaced 5 of 1994 s. 2. Amended 28 of 2012 ss. 912 & 920)*wages (工資) means wages or salary in respect of which an applicant would, on the winding up of a company, be entitled to priority under section 265(1)(b) or (c) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) or who would, on a bankruptcy, be entitled to priority under section 38(1)(b) or (c) of the Bankruptcy Ordinance (Cap. 6), save that the amount specified in section 265(1)(b) or (c) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) or section 38(1)(b) or (c) of the Bankruptcy Ordinance (Cap. 6) (as the case may be) as the maximum amount in respect of which an applicant would be entitled to priority, or any amount substituted therefor under section 265(1A) or (1B) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) or (as the case may be) section 38(2), (2A) or (2B) of the Bankruptcy Ordinance (Cap. 6), shall not apply; (Amended 15 of 1993 s. 2; 28 of 2012 ss. 912 & 920)*wages in lieu of notice (代通知金) means wages in lieu of notice in respect of which an applicant would, on the winding up of a company, be entitled to priority under section 265(1)(cc) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32), or would, in a bankruptcy, be entitled to priority under section 38(1)(cc) of the Bankruptcy Ordinance (Cap. 6), save that the amount specified in section 265(1)(cc) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) or section 38(1)(cc) of the Bankruptcy Ordinance (Cap. 6) (as the case may be) as the maximum amount in respect of which an application would be entitled to priority shall not apply; (Added 48 of 1987 s. 2. Amended 15 of 1993 s. 2; 28 of 2012 ss. 912 & 920)winding-up petition (清盤呈請) means a winding-up petition under Part V or Part X of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32). (Amended 28 of 2012 ss. 912 & 920)(Amended 4 of 1998 s. 12) Editorial Note: * For the transitional provision , see s. 4 of 15 of 1993. Part 2 Protection of Wages on Insolvency Fund Board 3. Establishment and incorporation of Wages on Insolvency Fund Board (1) There is hereby established a board to be known as the Protection of Wages on Insolvency Fund Board and in the Chinese language as “破產欠薪保障基金委員會” which shall be a body corporate.(2) The Board shall consist of a Chairman appointed under Schedule 1 and not more than 10 members appointed by the Chief Executive as follows— (Amended 54 of 2000 s. 3; 4 of 2022 s. 26)(a) subject to paragraph (b) not more than 4 public officers;(b) equal numbers of persons who, in his opinion, represent employers and persons who, in his opinion, represent employees.(3) The Chief Executive shall give notice of each appointment by notice in the Gazette. (Amended 54 of 2000 s. 3)(4) Schedule 1 shall have effect with respect to the Board. (Amended 4 of 2022 s. 26) 4. Functions and powers of the Board (1) The Board shall have the following functions—(a) to administer the Fund;(b) to make recommendations to the Chief Executive with respect to the rate of levy; and (Amended 54 of 2000 s. 3)(c) to perform such other duties as are imposed or other powers as are conferred on it by this Ordinance.(2) The Board may do all such things as are necessary for, or incidental or conducive to, the better carrying out of the functions of the Board and may in particular, but without prejudice to the generality of the foregoing—(a) hold, acquire or lease all kinds of property whether movable or immovable;(b) sell or otherwise dispose of all kinds of property whether movable or immovable;(c) subject to section 10, invest its funds in such manner and to such extent as it thinks necessary or expedient; and(d) with the prior consent of the Financial Secretary, borrow money in such manner and on such securities or terms as it thinks expedient. 5. Board to be subject to directions of the Chief Executive in Council The Chief Executive in Council may give to the Board such directions as he thinks fit with respect to the exercise of its functions under this Ordinance and the Board shall comply with any such direction.(Amended 54 of 2000 s. 3) Part 3 Fund 6. Establishment of Protection of Wages on Insolvency Fund The fund known as the Protection of Wages on Insolvency Fund established under the provisions of section 21 of the Business Registration Ordinance (Cap. 310) in force immediately before the commencement of this Ordinance shall be deemed to be established and continue in existence under this section, and shall consist of—(a) moneys that are paid by the Commissioner of Inland Revenue under that section whether paid before or after the commencement of this Ordinance;(b) moneys recovered under Part 6;(c) interest and other income derived from the moneys and investments comprising the Fund; and(d) other moneys lawfully paid into the Fund.(Amended E.R. 2 of 2012) 7. Payments from the Fund There shall be paid from the Fund the following—(a) payments to applicants under section 16;(b) expenses incurred by the Board for the purposes of this Ordinance;(c) capital, interest and charges in respect of any loan; and(d) any other sums required or permitted to be paid by the Fund under this Ordinance. Part 4 Financial Provisions 8. Financial year and estimates (1) The Board may, from time to time, with the prior approval of the Chief Executive, fix a period to be the financial year of the Fund.(2) In each financial year, before a date to be fixed by the Chief Executive, the Board shall submit to the Chief Executive, for his approval, estimates of the income and expenditure of the Fund for the next financial year: Provided that the estimates for the first financial year of the Fund shall be submitted as soon as practicable after the commencement of this Ordinance.(3) The Chief Executive shall consider the estimates submitted to him under subsection (2) and may approve or reject them and, in the case of rejection, may require the Board to resubmit the estimates modified in such manner and within such time as the Chief Executive may direct.(4) The Board may, from time to time, vary the estimates approved under subsection (3) and shall, as soon as practicable, deliver to the Chief Executive a statement in writing containing details of any variation.(Amended 54 of 2000 s. 3) 9. Bank account The Board shall open and maintain an account with a bank approved by the Financial Secretary and shall pay all moneys of the Fund into that account. 10. Investment of moneys All moneys of the Fund that are not immediately required by the Board may be—(a) deposited on fixed term or call deposit or in a savings account in any bank within the meaning of section 2 of the Banking Ordinance (Cap. 155); or (Amended 49 of 1995 s. 53)(b) with the prior approval of the Financial Secretary, invested in such other investments as the Board thinks fit. 11. Accounts The Board shall—(a) keep and maintain such accounts and records of all transactions of the Fund as the Director of Accounting Services may require; and(b) after the end of each financial year cause to be prepared a statement of the accounts of the Fund which shall include an income and expenditure account and balance sheet and shall be signed by the Chairman. 12. Auditors (1) The Board shall at the commencement of each financial year appoint auditors, who shall be entitled to have access to all books of account, vouchers and other records kept by the Board and to require such information and explanations as they may think fit.(2) The auditors shall audit the statement of accounts prepared under section 11 and shall report thereon to the Board. 13. Statements and reports to be laid on table of Legislative Council (1) The Board shall, within 6 months after the end of each financial year or such further time as the Chief Executive may for any particular year allow, submit to the Chief Executive a report on the activities of the Board for that financial year including copies of the statement of accounts prepared under section 11 and the report made under section 12.(2) The Chief Executive shall cause the reports and statements received by him under subsection (1) to be laid on the table of the Legislative Council.(Amended 54 of 2000 s. 3) 14. Costs of administering the Fund (1) All costs and expenses incurred by the Government in administering the Fund shall be a charge upon general revenue.(2) The Financial Secretary may direct that a supervision fee to be determined by him, in relation to such period as may be determined by him, shall be charged against the income of the Fund and shall at a time determined by him be paid to him by the Board from the Fund and paid by him into general revenue. Part 5 Payment from the Fund 15. Entitlement to apply for ex gratia payment (1) Subject to this Part, an applicant to whom—(a) wages are due and unpaid;(b) wages in lieu of notice are due and unpaid; (Amended 7 of 2012 s. 4)(c) the liability to be paid a severance payment has arisen and the severance payment is unpaid, whether or not the severance payment is then due; (Amended 7 of 2012 s. 4)(d) pay for untaken statutory holidays is due and unpaid; or (Added 7 of 2012 s. 4)(e) pay for untaken annual leave is due and unpaid, (Added 7 of 2012 s. 4)may apply for an ex gratia payment from the Fund in respect of the wages, wages in lieu of notice, the severance payment, the pay for untaken statutory holidays or the pay for untaken annual leave, as the case may be, or all or any of them. (Replaced 38 of 1989 s. 3. Amended 7 of 2012 s. 4)(2) An application under subsection (1) (in this Part called an application (申請)) shall be made to the Commissioner in writing in a form approved by him. (Amended 48 of 1987 s. 3)(3) No applicant shall apply for payment from the Fund in respect of any wages for services rendered before 1 April 1985.(4) No applicant shall apply for payment from the Fund in respect of wages in lieu of notice arising out of a contract of employment terminated before the commencement of the Protection of Wages on Insolvency (Amendment) Ordinance 1987 (48 of 1987). (Added 48 of 1987 s. 3)(5) No applicant shall apply for payment from the Fund in respect of a severance payment the liability for payment of which arose before the commencement of the Protection of Wages on Insolvency (Amendment) Ordinance 1989 (38 of 1989). (Added 38 of 1989 s. 3)(6) An applicant may not apply for payment from the Fund in respect of any pay for untaken statutory holidays or pay for untaken annual leave that arises out of a contract of employment terminated before the date of commencement* of the Protection of Wages on Insolvency (Amendment) Ordinance 2012 (7 of 2012). (Added 7 of 2012 s. 4) Editorial Note: * Commencement date: 29 June 2012. 16. Payment (1) Subject to subsections (1B) and (2) where it appears to the Commissioner that an employer has failed to pay any wages, wages in lieu of notice, severance payment, pay for untaken statutory holidays or pay for untaken annual leave, as the case may be, or all or any of them to an applicant and that— (Amended 7 of 2012 s. 5)(a) in the case of an employer who is not a company—(i) a bankruptcy petition has been presented against him; or(ii) he would, but for the existence of section 6(2)(a) of the Bankruptcy Ordinance (Cap. 6), be liable to have a bankruptcy petition presented against him; or (Replaced 76 of 1996 s. 84)(b) in the case of an employer who is a company, a winding-up petition has been presented against that employer,he may make an ex gratia payment to the applicant out of the Fund of the amount of the wages, wages in lieu of notice, severance payment, pay for untaken statutory holidays or pay for untaken annual leave, as the case may be, or all or any of them. (Amended 7 of 2012 s. 5)(1A) When the Commissioner makes a payment under subsection (1)(a)(ii), he shall give notice of the payment and the reasons therefor in the Gazette. (Added 41 of 1988 s. 2)(1B) Where an application has been made in respect of a severance payment which is not due at the date of the application, the Commissioner may defer consideration of the application until the severance payment becomes due. (Added 38 of 1989 s. 4)(2) The Commissioner shall not make any payment under subsection (1)—(a) to the applicant unless the applicant has verified his application by a statutory declaration in a form approved by the Commissioner;@(b) of an amount exceeding $80,000 in respect of wages; (Replaced 15 of 1993 s. 3. Amended L.N. 63 of 1996)(c) (Repealed 15 of 1993 s. 3)(d) in respect of wages—(i) for services rendered more than 4 months prior to an applicant’s last day of service; or(ii) for which an application is made to the Fund more than 6 months after the applicant’s last day of service; (Replaced 68 of 1996 s. 2)(e) in respect of wages in lieu of notice—(i) of an amount exceeding—(A) the equivalent of 1 month’s wages of the applicant; or@(B) $45,000, (Amended L.N. 63 of 1996)whichever is the lesser; or (Amended 15 of 1993 s. 3)(ii) subject to subsection (2A), which became due more than 6 months prior to the date of application; (Replaced 38 of 1989 s. 4. Amended 68 of 1996 s. 2; 7 of 2012 s. 5)(f) in respect of a severance payment—#(i) of an amount exceeding the aggregate of $200,000 and half of that part of the applicant’s entitlement to severance payment in excess of $200,000; or (Replaced 45 of 1991 s. 3. Amended L.N. 332 of 1995; L.N. 63 of 1996; L.N. 34 of 1999; L.N. 46 of 2025)(ii) the liability for payment of which arose more than 6 months prior to the date of application; (Added 38 of 1989 s. 4. Amended 68 of 1996 s. 2; 7 of 2012 s. 5)(g) in respect of pay for untaken statutory holidays unless—(i) the statutory holidays concerned fell not more than 4 months before the applicant’s last day of service (whether or not any of those holidays was, by virtue of section 39(2), (2A), (3) or (4) of the Employment Ordinance (Cap. 57), to be taken after the applicant’s last day of service as an alternative holiday, a substituted holiday or a holiday under section 39(4) of that Ordinance);(ii) the statutory holidays concerned are those in respect of which holiday pay would have been payable to the applicant under section 40 of the Employment Ordinance (Cap. 57) had the applicant taken the holidays;(iii) subject to paragraph (i), the payment is of an amount not exceeding the lesser of the following—(A) the amount of the pay for untaken statutory holidays, as calculated at the daily rate of holiday pay specified in section 41 of the Employment Ordinance (Cap. 57);@(B) $26,000; and(iv) an application for the payment is made not more than 6 months after the applicant’s last day of service; (Added 7 of 2012 s. 5)(h) in respect of pay for untaken annual leave unless—(i) the pay for untaken annual leave is payable under section 41D of the Employment Ordinance (Cap. 57), being payable on account of the applicant’s employment in—(A) the applicant’s last leave year; and(B) if the applicant’s contract of employment terminates, or is terminated, otherwise than on the expiration of that last leave year, the leave year immediately preceding that last leave year;@(ii) subject to paragraph (i), the payment is of an amount not exceeding $26,000; and(iii) an application for the payment is made not more than 6 months after the pay for untaken annual leave became due; or (Added 7 of 2012 s. 5)@(i) of an amount exceeding in total $26,000 in respect of both pay for untaken statutory holidays and pay for untaken annual leave. (Added 7 of 2012 s. 5. Amended L.N. 145 of 2022)(2A) Subsection (2)(e)(ii) shall not apply to wages in lieu of notice arising out of a contract of employment terminated before the commencement of the Protection of Wages on Insolvency (Amendment) Ordinance 1989 (38 of 1989). (Added 38 of 1989 s. 4)*(2B) (a) Where it appears to the Commissioner that—(i) an applicant’s wages have been reduced during the period of 12 months immediately before he is dismissed or laid off; and(ii) before the wage reduction took effect, the employer of the applicant had given an undertaking to the applicant to the effect that if the applicant was dismissed or laid off after the wage reduction, the severance payment payable to him would be calculated in a manner more favourable to him than that provided for in section 31G of the Employment Ordinance (Cap. 57),then, for the purposes of subsection (2)(f)(i), the applicant’s entitlement to severance payment may, if it is more favourable to the applicant, be calculated—(A) in accordance with Schedule 2; or (Replaced 4 of 2022 s. 27)(B) in the manner specified in the undertaking, whichever results in a lesser amount.(b) If the calculation under paragraph (a)(A) and that under paragraph (a)(B) result in the same amount, the applicant’s entitlement to severance payment for the purposes of subsection (2)(f)(i) shall be that amount.(c) (Repealed 4 of 2022 s. 27)(d) If a wage reduction in respect of which an undertaking as described in paragraph (a)(ii) has been given has occurred in relation to an applicant more than once during the period of 12 months immediately before he is dismissed or laid off, the reference to the undertaking in paragraph (a)(B) is to be construed as a reference to the undertaking that is the most favourable to the applicant among those given to the applicant during that period. (Added 77 of 1999 s. 2. Amended 4 of 2022 s. 27)(3) The Legislative Council may by resolution amend the period specified in subsection (2)(e)(i)(A) or the amount specified in subsection (2)(b), (e)(i)(B) or (f)(i). (Added 48 of 1987 s. 4. Amended 15 of 1993 s. 3)(3A) The Legislative Council may by resolution amend the amount specified in subsection (2)(g)(iii)(B), (h)(ii) or (i). (Added 7 of 2012 s. 5)(4) For the purposes of this section—last day of service (服務的最後一天) means the last day on which an applicant renders services to the employer to whom the applicant’s application relates;last leave year (最後假期年) means the leave year in which the applicant’s contract of employment terminates, or is terminated;leave year (假期年) has the same meaning as in Part VIIIA of the Employment Ordinance (Cap. 57). (Replaced 7 of 2012 s. 5)(Amended 48 of 1987 s. 4; 38 of 1989 s. 4) Editorial Note: @ For transitional provisions, see paras. (b) and (c) of L.N. 145 of 2022. # For transitional provisions, see paras. (b) and (c) of L.N. 46 of 2025. * Subsection (2B) of this section was added by Ord. No. 77 of 1999. For transitional provisions, see s. 3 of that Ordinance. 17. Review by Board (1) Any applicant aggrieved by any decision of the Commissioner under section 16 may in writing—(a) request the Commissioner to give reasons for that decision; and(b) after being given reasons under paragraph (a), request the Commissioner to refer the application to the Board.(2) Upon receiving a request from an applicant under subsection (1)(b), the Commissioner shall forward all documents relating to the application to the Chairman of the Board.(3) The Board may confirm or vary any decision of the Commissioner on an application referred to it under this section or may for those purposes require the Commissioner to make further inquiries relating to the application. 18. Additional power of Commissioner (1) Notwithstanding that in any particular case a petition referred to in section 16(1)(a)(i) or (b) has not been presented against an employer, the Commissioner may, subject to subsection (2) of that section, make an ex gratia payment under that section in that case if in his opinion— (Amended 41 of 1988 s. 3)(a) the employer employs less than 20 employees;(b) sufficient evidence exists to support the presentation of a petition in that case on the ground—(i) if the employer is a company, that he is unable to pay his debts; or(ii) if the employer is a person other than a company, that he is liable to have a bankruptcy petition presented against him; and (Amended 37 of 1998 s. 7)(c) it is unreasonable or uneconomic to present a petition in that case.(2) Where the Commissioner exercises his discretion under subsection (1) to make payment, he shall give notice in the Gazette stating that, in his opinion, sufficient evidence exists to support the presentation of a petition on the ground—(a) if the employer is a company, that he is unable to pay his debts; or(b) if the employer is a person other than a company, that he is liable to have a bankruptcy petition presented against him. (Amended 37 of 1998 s. 7)(3) Nothing in subsection (2) shall require the Commissioner to give more than one notice in respect of each employer.(4) No action shall lie against the Commissioner in respect of any notice given under subsection (2). 19. Verification of application (1) For the purpose of verifying any application under section 15, or if so required by the Board under section 17(3), the Commissioner may make such inquiries as he thinks fit and may in particular, but without limiting the generality of the foregoing and without prejudice to any powers of the Commissioner under any other Ordinance—(a) interview the applicant and any other employee;(b) by notice in writing require the applicant or any other person having possession thereof to produce to the Commissioner for his inspection any record, book of account, or other document as may, in the opinion of the Commissioner, be necessary to verify the application;(c) by notice in writing require any person whom he reasonably believes to have possession thereof to produce to the Commissioner for his inspection any register, record or other document required to be kept by an employer under the Employment Ordinance (Cap. 57); and(d) by notice in writing require the employer to whom the application relates or any servant, agent or employee of that employer to attend before him and to answer questions put by him.(2) Any notice served by the Commissioner imposing any requirement under this section, shall state the time when and place where the person to whom the notice is given shall comply with that requirement.(3) Any notice to be served on any person under this section may be served by post.(4) In relation to the Commissioner’s powers under subsection (1) to make inquiries—(a) any person required to answer questions shall have, in relation to any answer thereto, such privileges as he would have had, had such question been asked in a court but shall otherwise answer any such question;(b) the Commissioner shall proceed as informally as possible and may determine the procedure to be followed. 20. Decisions under this Part not to be challenged No decision of the Commissioner or the Board made in exercise of any discretion under this Part shall be challenged in any Court. 21. Power of Commissioner to delegate (1) The Commissioner may, in writing, authorize any officer of the Labour Department to exercise any of his powers or perform any of his duties under this Part.(2) In this Part but not in subsection (1) Commissioner (處長) includes any person authorized by the Commissioner under this section. 22. Payment not to affect right to legal aid Any right of an applicant to receive legal aid under the Legal Aid Ordinance (Cap. 91) shall not be affected by any payment made under section 16 if the purpose of such legal aid is to assist the applicant to recover any further amount due to him under any contract of employment or under the Employment Ordinance (Cap. 57). 23. Proof by certificate (1) A document purporting to be under the hand of the Commissioner stating that—(a) on the date specified therein the sum of money stated therein was paid from the Fund to the person named therein; and(b) immediately before that date the employer named therein owed to that person the amount of wages, wages in lieu of notice, severance payment, pay for untaken statutory holidays or pay for untaken annual leave, as the case may be, or all or any of them, specified therein in respect of the period or periods stated therein, (Replaced 38 of 1989 s. 5. Amended 7 of 2012 s. 6)shall be admissible in any proceedings on its production and without further proof and, until the contrary is proved or unless it be shown that the document was not under the hand of the Commissioner, shall be prima facie evidence of the facts stated therein. (Replaced 48 of 1987 s. 5)(2) In this section proceedings (法律程序) includes the lodging of a proof of debt in any bankruptcy or winding-up. Part 6 Recovery of Payments 24. Subrogation (1) Where a payment is made under section 16 to an applicant in respect of wages due to him, or in respect of any liability to pay him a severance payment, whether or not the severance payment is due when that payment under section 16 is made, all his rights and remedies with respect to those wages or severance payment, as the case may be, existing immediately before that payment under section 16 shall, to the extent of the amount of that payment under section 16, be transferred to and vest in the Board for the benefit of the Fund and the Board may take such steps as it considers necessary to enforce those rights and remedies.(2) The rights and remedies of an applicant in respect of a severance payment transferred to and vested in the Board pursuant to subsection (1) shall include the rights and remedies of the applicant in respect of so much of that severance payment as the applicant would, on the winding up of a company, be entitled to priority under section 265(1)(ca) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) or would, on a bankruptcy, be entitled to priority under section 38(1)(ca) of the Bankruptcy Ordinance (Cap. 6). (Replaced 45 of 1991 s. 4. Amended L.N. 210 of 1994; 28 of 2012 ss. 912 & 920)(2A) Where—(a) the amount of any wages due to an applicant exceeds the amount of any payment made to him under section 16 in respect of those wages, nothing in this section shall affect the rights or remedies of the applicant in respect of the amount of the excess;(b) the amount of any liability in respect of the payment to an applicant of a severance payment exceeds the amount of any payment made to him under section 16 in respect of the severance payment, the rights or remedies of the applicant in respect of the amount of the excess shall be subject to the rights and remedies of the applicant in respect of the severance payment transferred to and vested in the Board pursuant to subsection (1). (Added 45 of 1991 s. 4)(2B) If—(a) an applicant is entitled to a payment of benefits under an occupational retirement scheme or is a person for whom accrued benefits in a mandatory provident fund scheme are held; and(b) an ex gratia payment is made to the applicant under section 16 in respect of a severance payment that the employer has failed to pay,the applicant’s rights and remedies in respect of the benefits (specified benefits) are, to the extent of the subrogation amount specified under subsection (2C), transferred to, and vested in, the Board for the benefit of the Fund. The Board may take such steps as it considers necessary to enforce those rights and remedies. (Replaced 4 of 2022 s. 28)(2C) For the purposes of subsection (2B), the subrogation amount is the amount of the specified benefits that would be available to be reduced under section 31IA of the Employment Ordinance (Cap. 57). (Replaced 4 of 2022 s. 28)(2D) For applying section 31IA of the Employment Ordinance (Cap. 57) for the purposes of subsection (2C), a reference in that section to a severance payment paid under Part VA of that Ordinance is taken to be a reference to an ex gratia payment mentioned in subsection (2B)(b). (Added 4 of 2022 s. 28)(3) In this section wages (工資) includes wages in lieu of notice, pay for untaken statutory holidays and pay for untaken annual leave. (Added 48 of 1987 s. 6. Amended 7 of 2012 s. 7)(Amended 38 of 1989 s. 6) Editorial Note: For transitional provision respecting severance payments, see s. 5 of 45 of 1991. 25. Recovery of payment made by mistake Where—(a) any payment is made to any person from the Fund under a mistake of law or fact; or(b) notwithstanding that no person has been charged with or convicted of an offence under section 26, any payment is made to any person, in respect of an application that is false in any material particular,such payment shall be recoverable by the Board from the recipient thereof as a debt due to the Board. Part 7 Miscellaneous 26. Offences (1) Any person who—(a) in providing information for the purposes of this Ordinance including any inquiry thereunder, makes any statement which he knows to be false in a material particular or recklessly makes a statement which is false in a material particular; or(b) for the purposes of this Ordinance including any inquiry thereunder and with intent to deceive, produces, supplies or sends, or otherwise makes use of, any document or record which is false in a material particular, commits an offence and is liable to a fine at level 5 and to imprisonment for 3 months.(2) Any person who, without reasonable excuse, fails to comply with any requirement imposed by the Commissioner under section 19(1) or (4) commits an offence and is liable to a fine at level 2 and to imprisonment for 1 month.(3) Without prejudice to any Ordinance relating to the prosecution of offences or to the powers of the Secretary for Justice in respect of the prosecution of criminal offences, a prosecution for any offence under this Ordinance may be brought in the name of the Commissioner and commenced and conducted by an officer of the Labour Department authorized in that behalf in writing by the Commissioner. (Amended L.N. 362 of 1997)(4) Where a complaint is made or an information laid for an offence under this Ordinance by the Commissioner or any officer authorized under subsection (3), the complainant or informant shall be deemed to be acting on behalf of the Secretary for Justice. (Amended L.N. 362 of 1997; 23 of 2002 s. 5)(Amended E.R. 2 of 2012) 27. Regulations The Chief Executive in Council may by regulations— (Amended 54 of 2000 s. 3)(a) prescribe anything required or permitted to be prescribed under this Ordinance;(b) provide for the better carrying into effect of the provisions of this Ordinance. 28. Power of Chief Executive to amend Schedule 1 (Amended 4 of 2022 s. 29)The Chief Executive may by notice in the Gazette amend Schedule 1.(Amended 54 of 2000 s. 3; 4 of 2022 s. 29) 29. Transitional (1) The Protection of Wages on Insolvency (Amendment) Ordinance 1987 (48 of 1987) (the amending Ordinance (該修訂條例)) shall apply to and in relation to any payment to be made in accordance with section 38 of the Bankruptcy Ordinance (Cap. 6), or section 265 of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32), after the commencement of the amending Ordinance, notwithstanding that any debt to which such payment relates was incurred before that commencement. (Amended 68 of 1996 s. 3; 28 of 2012 ss. 912 & 920)(2) Section 2 of the Protection of Wages on Insolvency (Amendment) Ordinance 1996 (68 of 1996) shall not apply to an application under section 15(1) made to the Commissioner before the commencement* of that Ordinance. (Added 68 of 1996 s. 3)(Incorporated 48 of 1987 s. 9)Editorial Note:* Commencement date: 6 December 1996. Schedule 1 [ss. 3 & 28]Protection of Wages on Insolvency Fund Board (Renumbered 4 of 2022 s. 30) 1. Status of Board The Board shall not be the servant or agent of the Government nor shall it enjoy any status, immunity or privilege of the Government.(Amended 23 of 2002 s. 32) 2. Seal (1) The Board shall have a common seal, the affixing of which shall be authenticated by the signature of any 2 members.(2) Any document purporting to be a document duly executed under the seal of the Board shall be received in evidence and shall, unless the contrary is proved, be deemed to be a document so executed. 3. Tenure of members (1) A member of the Board who is not a public officer shall, unless his appointment is terminated or otherwise ceases, hold office for such period as the Chief Executive may specify.(2) On the expiry of his period of appointment or re-appointment, any member to whom subparagraph (1) applies shall be eligible for re-appointment for such further term as the Chief Executive may specify.(3) Any member to whom subparagraph (1) applies may at any time resign from office by giving notice in writing to the Chief Executive, and he shall cease to be a member from the date specified in the notice or, if no date is specified, from the date of the receipt by the Chief Executive of the notice.(4) If any member of the Board, other than the Chairman, is absent from Hong Kong or is for any other reason unable to exercise the powers or perform the duties of his office as member, the Chief Executive may appoint another person to be a temporary member in his place during his absence or incapacity.(Amended 54 of 2000 s. 3) 4. Chairman (1) The Chief Executive shall appoint a person to be Chairman of the Board and shall give notice of such appointment by notice in the Gazette.(2) If the Chairman is absent from Hong Kong or is for any other reason unable to act as Chairman, the Chief Executive may appoint another person to be Chairman in his place during his absence or incapacity and shall give notice of such appointment by notice in the Gazette.(3) At any meeting of the Board the Chairman shall have a casting vote in addition to a deliberative vote.(Amended 54 of 2000 s. 3) 5. Meetings and proceedings of the Board (1) Meetings of the Board shall be held at such times and places as the Chairman or person acting as Chairman may appoint.(2) The quorum for meetings of the Board shall be 5.(3) Subject to this Schedule the Board may determine its own procedure. 6. Transaction of business by circulation of papers The Board may transact any of its business by the circulation of papers, and a resolution in writing which is approved by a majority of the members shall be valid and effectual as if it had been passed at a meeting of the Board by the votes of its members so approving the resolution. 7. Board may delegate to Commissioner The Board may by resolution, with or without restrictions or conditions as it thinks fit, delegate in writing to the Commissioner any of its powers and duties other than its power under section 4(1)(b) or 17(3). 8. Committees The Board may create and appoint such committees for any general or special purposes as it thinks fit and, in relation to such committees,—(a) the Chairman shall be appointed by the Board; and(b) the Chairman and at least 2 out of every 3 persons appointed to a committee shall be members of the Board. 9. Board may delegate to Committee The Board may by resolution, with or without restrictions or conditions as it thinks fit, delegate in writing to any committee appointed under paragraph 8 any of its powers and duties other than its power under section 4(1)(b) or 17(3). Schedule 2 [s. 16]Calculation of More Favourable Severance Payment under Section 16(2B)(a)(A) (Schedule 2 added 4 of 2022 s. 31) Part 1 Preliminary 1. Interpretation In this Schedule—Cap. 57 (《第57章》) means the Employment Ordinance (Cap. 57);pre-reduction employment period (減薪前僱傭期), in relation to an applicant, means the period of the applicant’s employment under the contract of employment concerned that falls before the date on which the specified wage reduction took effect in relation to the applicant;qualifying wage reduction (合資格減薪), in relation to an applicant, means a wage reduction—(a) that has occurred in relation to the applicant during the period of 12 months immediately before the applicant is dismissed or laid off; and(b) in respect of which an undertaking as described in section 16(2B)(a)(ii) has been given;specified applicant (指明申請人) means an applicant who is a specified employee as defined by section 2(1) of Cap. 57;specified wage reduction (指明減薪), in relation to an applicant, means—(a) if it appears to the Commissioner that only one qualifying wage reduction has occurred in relation to the applicant—that reduction; or(b) if it appears to the Commissioner that more than one qualifying wage reduction has occurred in relation to the applicant—the qualifying wage reduction in respect of the highest wage. Part 2 Calculation for Applicants other than Specified Applicants 2. Application of Part 2 This Part applies in relation to the calculation under section 16(2B)(a)(A) of the entitlement to severance payment of an applicant who is not a specified applicant. 3. Calculation of entitlement to severance payment: application of section 31G of Cap. 57 The applicant’s entitlement is calculated in accordance with section 31G of Cap. 57 subject to the following—(a) the reference to the applicant’s last full month’s wages in subsection (1)(a) of that section is to be construed as a reference to the applicant’s last full month’s wages for the applicant’s pre-reduction employment period;(b) the reference to the applicant’s last 30 normal working days in subsection (1)(b) of that section is to be construed as a reference to the applicant’s last 30 normal working days in the applicant’s pre-reduction employment period; and(c) the reference to the relevant date in subsection (2) of that section is to be construed as a reference to the date on which the specified wage reduction took effect in relation to the applicant. Part 3 Calculation for Specified Applicants Division 1 General Provisions 4. Application of Part 3 This Part applies in relation to the calculation under section 16(2B)(a)(A) of the entitlement to severance payment of a specified applicant. 5. Interpretation (Part 3) (1) In this Part—pre-transition (pre-reduction) employment period (轉制前(減薪前)僱傭期), in relation to a specified applicant mentioned in sections 7 and 9 of this Schedule, means the period—(a) beginning on the day on which the applicant’s employment under the contract of employment concerned commenced; and(b) ending on the expiry of the day immediately preceding the date on which the specified (pre-transition) wage reduction took effect in relation to the applicant;qualifying (pre-transition) wage reduction (合資格(轉制前)減薪) means a qualifying wage reduction that has occurred before the date on which the Employment and Retirement Schemes Legislation (Offsetting Arrangement) (Amendment) Ordinance 2022 (4 of 2022) comes into operation*;section 31G of Cap. 57 (《第57章》第31G條)—see subsection (2);specified (pre-transition) wage reduction (指明(轉制前)減薪), in relation to a specified applicant mentioned in sections 7 and 9 of this Schedule, means—(a) if it appears to the Commissioner that only one qualifying (pre-transition) wage reduction has occurred in relation to the applicant—that reduction; or(b) if it appears to the Commissioner that more than one qualifying (pre-transition) wage reduction has occurred in relation to the applicant—the qualifying (pre-transition) wage reduction in respect of the highest wage.(2) In this Part, a reference to section 31G of Cap. 57 is to be construed as a reference to that section as modified by section 2 of Schedule 11 to Cap. 57 (as required by section 31ZEA of Cap. 57). Editorial Note: * Operation date: 1 May 2025. 6. Calculation of entitlement to severance payment: application of section 31G of Cap. 57 Subject to Division 2 of this Part, the specified applicant’s entitlement is calculated in accordance with section 31G of Cap. 57. Division 2 Application of Section 31G of Cap. 57 for Specified Applicants 7. Application of section 31G of Cap. 57: subsection (1)(a) (1) This section applies if it appears to the Commissioner that a qualifying (pre-transition) wage reduction has occurred in relation to a specified applicant.(2) For applying section 31G of Cap. 57 in relation to the applicant, the amount specified under subsection (1)(a) of that section in relation to the applicant is to be construed as an amount calculated by multiplying the number of years (and pro rata for an incomplete year) of the applicant’s pre-transition employment period by—(a) if the applicant is a monthly rated employee—two-thirds of the applicant’s last full month’s wages for the applicant’s pre-transition (pre-reduction) employment period, or two-thirds of $22,500, whichever is less; or(b) in any other case—18 days’ wages based on any 18 days chosen by the applicant and occurring during the applicant’s last 30 normal working days in the applicant’s pre-transition (pre-reduction) employment period, or two-thirds of $22,500, whichever is less. Note— See also section 67A of Cap. 57. (3) In subsection (2)—pre-transition employment period (轉制前僱傭期) has the meaning given by section 1(1) of Schedule 11 to Cap. 57. 8. Application of section 31G of Cap. 57: subsection (1)(b) (1) For applying section 31G of Cap. 57 in relation to a specified applicant, the amount specified under subsection (1)(b) of that section in relation to the applicant is to be construed as an amount calculated by multiplying the number of years (and pro rata for an incomplete year) of the applicant’s post-transition employment period by—(a) if the applicant is a monthly rated employee—two-thirds of the applicant’s last full month’s wages for the applicant’s pre-reduction employment period, or two-thirds of $22,500, whichever is less; or(b) in any other case—18 days’ wages based on any 18 days chosen by the applicant and occurring during the applicant’s last 30 normal working days in the applicant’s pre-reduction employment period, or two-thirds of $22,500, whichever is less. Note— See also section 67A of Cap. 57. (2) In subsection (1)—post-transition employment period (轉制後僱傭期) has the meaning given by section 1(1) of Schedule 11 to Cap. 57. 9. Application of section 31G of Cap. 57: paragraph (a) of definition of specified period in subsection (6) (1) This section applies if it appears to the Commissioner that a qualifying (pre-transition) wage reduction has occurred in relation to a specified applicant.(2) For applying section 31G of Cap. 57 in relation to the applicant, the period specified under paragraph (a) of the definition of specified period in subsection (6) of that section in relation to the applicant is to be construed as—(a) if the applicant’s pre-transition (pre-reduction) employment period is not less than 12 months—the period of 12 months immediately preceding the date on which the specified (pre-transition) wage reduction took effect in relation to the applicant; or(b) if the applicant’s pre-transition (pre-reduction) employment period is less than 12 months—that employment period. 10. Application of section 31G of Cap. 57: paragraph (b) of definition of specified period in subsection (6) For applying section 31G of Cap. 57 in relation to a specified applicant, the period specified under paragraph (b) of the definition of specified period in subsection (6) of that section in relation to the applicant is to be construed as—(a) if the applicant’s pre-reduction employment period is not less than 12 months—the period of 12 months immediately preceding the date on which the specified wage reduction took effect in relation to the applicant; or(b) if the applicant’s pre-reduction employment period is less than 12 months—that employment period.