If employer fails to mention withheld holidays in contract, can they still deduct?

I've looked all over the web for this specific point on contracts, but can't find it so I'm hoping someone here can help.


For contracted salary employees, the first three months of work can include non-paid statutory holidays. Meaning the employer doesn't have to pay for those holidays, for the first three months, if they choose not to.


So if the employee signs a contract which states the salary includes public holidays and makes no mention of withheld holiday pay for any month, can the employer still decide to withhold that holiday pay later?


My presumption is that if the employer chooses to withhold the holiday pay they must state that in the contract. And by saying holidays are paid they clearly imply all holidays will be paid including the first three months.


I just can't find exact undeniable support for this on the labour department's site or anywhere else.

You will be entitled to holiday after 3 months, so if for any reason you quit it are terminated before 3 months then you are not entitled to any holiday pay.


After 3 months it is carried by the amount of time you have worked within/up to your contract fulfillment.

Coming late to this, but your question is a matter of contract rather than legislation. The starting point is that you're not entitled to paid statutory holidays during the first three months. If the contract says that your salary includes statutory holiday pay (or public holiday pay, which is slightly different), then you can certainly argue that the employer has agreed as a matter of contract to be more generous and to pay for holidays during the first three months.


I'm sure the employer would argue something like "it includes only the holiday pay that I am required to pay", but that's not a complete answer. If your contract says your salary is $100 per month and you get $95 instead, the employer has to justify the deduction. Section 32 of the Employment Ordinance sets out fairly strict limits on permissible deductions and it is a criminal offence to make deductions outside s. 32.


Your employer could try to argue that the deduction falls within s. 32 because deductions for "absence from work" are permitted, but I think that's a bit of a stretch.


If you wanted to pursue this, I'd call the Labour Department and get their view first. (I would call 3 times, because often the first two answers are different.) It's a tricky question, though, and the hotline operators might not be able to advise on the interplay between the legislation and the wording in the contract.


Personally, given how easy it is to dismiss in Hong Kong, I'd only pursue it if you had another job lined up!