Hong Kong


PROTECTION OF WAGES ON INSOLVENCY ORDINANCE
　(CHAPTER 380)
　CONTENTS
　　
　　ion
　　
　　I　　　　PRELIMINARY
　　hort title
　　nterpretation
　　
　　II　　　 PROTECTION OF WAGES ON INSOLVENCY FUND BOARD
　　stablishment and incorporation of Wages on Insolvency Fund Board
　　unctions and powers of the Board
　　oard to be subject to directions of the Governor in Council
　　
　　III　　　FUND
　　stablishment of Protection of Wages on Insolvency Fund
　　ayments from the Fund
　　
　　IV　　　 FINANCIAL PROVISIONS
　　inancial year and estimates
　　ank account
　　Investment of moneys
　　Accounts
　　Auditors
　　Statements and reports to be laid on table of Legislative Council
　　Costs of administering the Fund
　　
　　V　　　　PAYMENT FROM THE FUND
　　Entitlement to apply for ex gratia payment
　　Payment
　　Review by Board
　　Additional power of Commissioner
　　Verification of application
　　Decisions under this Part not to be challenged
　　Power of Commissioner to delegate
　　Payment not to affect right to legal aid
　　Proof by certificate
　　
　　VI　　　 RECOVERY OF PAYMENTS
　　Subrogation
　　Recovery of payment made by mistake
　　
　　VII　　　MISCELLANEOUS
　　Offences
　　Regulations
　　Power of Governor to amend Schedule
　　Transitional
　　
　　dule Protection of Wages on Insolvency Fund Board
　　
　　rovide for the establishment of a board to administer the
Protection
　　ages on Insolvency Fund, to provide for payment of monies from
the
　　to employees whose employers become insolvent; and for matters
　　ected therewith or incidental thereto.
　　April 1985] L. N. 100 of 1985
　PART I PRELIMINARY
　　
　　hort title
　　Ordinance may be cited as　the　Protection　of　Wages　on　
Insolvency
　　nance.
　　nterpretation
　　his Ordinance, unless the context otherwise requires--
　　licant" means any person who would, on the winding up of a company,
be
　　tled to priority under section 265 (1) (b), (c), (ca) or (cc)　of　
the
　　anies Ordinance (Cap.　32) or who would, on a bankruptcy, be　
entitled
　　riority under section 38 (1) (b), (c), (ca) or (cc) of the　
Bankruptcy
　　nance (Cap. 6) other than a person whose employer is an individual
and
　　is a member of the family of that employer and who dwells in the　
same
　　ling as that employer; (Amended 48 of 1987 s. 2; 38 of 1989 s.
2)
　　kruptcy petition" means a bankruptcy　petition　under　the　
Bankruptcy
　　nance (Cap.　6);
　　rd" means the Protection of Wages on Insolvency Fund Board
established
　　ection 3;
　　missioner" means the Commissioner for Labour;
　　pany" means any body　which　is　liable　to　be　wound　up　
under　the
　　anies Ordinance (Cap. 32);
　　ancial year" means the financial year of the Fund fixed under　
section
　　Fund" means the Protection of Wages on Insolvency Fund referred
to　in
　　ion 6;
　　y" has the meaning assigned　to　it　by　section　2　of　the　
Business
　　stration Ordinance (Cap. 310);
　　everance payment" means a severance payment payable by an
employer　to
　　mployee under section 31B (1) of the Employment Ordinance (Cap.
57);
　　laced 45 of 1991 s. 2)
　　"wages" means wages or salary in respect of
　　h an applicant would, on the winding up of a company, be　entitled　
to
　　rity under section 265 (1) (b) or (c) of the Companies Ordinance
(Cap.
　　or who would, on a bankruptcy, be entitled to priority　under　
section
　　1) (b) or (c) of the Bankruptcy Ordinance　(Cap.　6),　save　
that　the
　　nt specified in section 265 (1) (b) or (c) of the Companies
Ordinance
　　. 32) or section 38 (1) (b) or (c) of the Bankruptcy　Ordinance　
(Cap.
　　as the case may be) as the maximum　amount　in　respect　of　
which　an
　　icant would　be　entitled　to　priority,　or　any　amount　
substituted
　　efor under section 265 (1A) or (1B) of the Companies　Ordinance　
(Cap.
　　or (as the case may be) section 38 (2), (2A) or (2B) of the
Bankruptcy
　　nance (Cap. 6), shall not apply; (Amended 15 of 1993 s. 2)
　　"wages in lieu of notice" means wages in lieu of notice in respect　
of
　　h an applicant would, on the winding up of a company, be　entitled　
to
　　rity under section 265 (1) (cc) of the Companies Ordinance (Cap.　
32),
　　ould, in a bankruptcy, be entitled to priority under section 38
(1)
　　of the Bankruptcy Ordinance (Cap. 6), save that the amount　
specified
　　ection 265 (1) (cc) of the Companies Ordinance (Cap. 32) or
section 38
　　(cc) of the Bankruptcy Ordinance (Cap. 6) (as the case may be)
as　the
　　mum amount in respect of which　an　applicant　would　be　
entitled　to
　　rity shall not apply; (Added 48 of 1987 s. 2. Amended 15 of 1993
s. 2)
　　ding-up petition" means a winding-up petition under Part V or X
of the
　　anies Ordinance (Cap. 32).
　PART II PROTECTION OF WAGES ON INSOLVENCY FUND BOARD
　　
　　stablishment and incorporation of Wages on Insolvency Fund Board
　　There is hereby established a board to be known as the　Protection　
of
　　s on Insolvency Fund Board and in the Chinese language as which　
shall
　　body corporate.
　　The Board shall consist of a Chairman appointed under the Schedule
and
　　more than 10 members appointed by the Governor as follows--
　　subject to paragraph (b) not more than 4 public officers;
　　equal numbers of persons who, in his opinion, represent employers　
and
　　ons who, in his opinion, represent employees.
　　The Governor shall give notice of each appointment by　notice　in　
the
　　tte.
　　The Schedule shall have effect with respect to the Board.
　　unctions and powers of the Board
　　The Board shall have the following functions--
　　to administer the Fund;
　　to make recommendations to the Governor with respect to　the　
rate　of
　　; and
　　to perform such other duties as are imposed or　other　powers　as　
are
　　erred on it by this Ordinance.
　　The Board may do all such things as are necessary for,　or　
incidental
　　onducive to, the better carrying out of the functions of the Board
and
　　in　particular,　but　without　prejudice　to　the　generality　
of　the
　　going--
　　hold, acquire or lease　all　kinds　of　property　whether　
movable　or
　　vable;
　　sell or otherwise dispose of all kinds of property whether movable　
or
　　vable;
　　subject to section 10, invest its funds in such　manner　and　to　
such
　　nt as it thinks necessary or expedient; and
　　with the prior consent of the Financial　Secretary,　borrow　
money　in
　　manner and on such securities or terms as it thinks expedient.
　　oard to be subject to directions of the Governor in Council
　　Governor in Council may give to the Board such directions as he
thinks
　　with respect to the exercise of its functions under this Ordinance
and
　　Board shall comply with any such direction.
　PART III FUND
　　
　　stablishment of Protection of Wages on Insolvency Fund
　　fund known as the Protection of Wages on Insolvency　Fund　
established
　　r the provisions of section 21 of the Business Registration
Ordinance
　　. 310) in force immediately before the commencement of this　
Ordinance
　　l be deemed to be established and continue　in　existence　under　
this
　　ion, and shall consist of--
　　moneys that are paid by the Commissioner of Inland Revenue under　
that
　　ion whether paid before or after the commencement of this
Ordinance;
　　moneys recovered under Part VI;
　　interest and other income derived　from　the　moneys　and　
investments
　　rising the Fund; and
　　other moneys lawfully paid into the Fund.
　　ayments from the Fund
　　e shall be paid from the Fund the following--
　　payments to applicants under section 16;
　　expenses incurred by the Board for the purposes of this Ordinance;
　　capital, interest and charges in respect of any loan; and
　　any other sums required or permitted to be paid by the Fund under
this
　　nance.
　PART IV FINANCIAL PROVISIONS
　　
　　inancial year and estimates
　　The Board may, from time to time,　with　the　prior　approval　
of　the
　　rnor, fix a period to be the financial year of the Fund.
　　In each financial year, before a date to be fixed by the Governor,
the
　　d shall submit to the Governor, for his　approval,　estimates　
of　the
　　me and expenditure of the Fund for the next financial year:
　　ided that the estimates for the first financial year of the Fund
shall
　　ubmitted as　soon　as　practicable　after　the　commencement　
of　this
　　nance.
　　The Governor shall consider　the　estimates　submitted　to　
him　under
　　ection (2) and may　approve　or　reject　them　and,　in　the　
case　of
　　ction, may require the Board to resubmit　the　estimates　
modified　in
　　manner and within such time as the Governor may direct.
　　The Board may, from time to time, vary the　estimates　approved　
under
　　ection (3) and shall, as soon as practicable, deliver to the　
Governor
　　atement in writing containing details of any variation.
　　ank account
　　Board shall open and maintain an account with a bank approved　by　
the
　　ncial Secretary and shall　pay　all　moneys　of　the　Fund　
into　that
　　unt.
　　Investment of moneys
　　moneys of the Fund that are not immediately required by the Board　
may
　　
　　deposited on fixed term or call deposit or in a savings account
in
　　bank licensed under the Banking Ordinance (Cap. 155); or
　　with the prior approval of the Financial Secretary, invested　in　
such
　　r investments as the Board thinks fit.
　　Accounts
　　Board shall--
　　keep and maintain such accounts and records of all transactions
of the
　　as the Director of Accounting Services may require; and
　　after the end of each financial year cause to be prepared a　
statement
　　he accounts of the Fund which shall include an income and　
expenditure
　　unt and balance sheet and shall be signed by the Chairman.
　　Auditors
　　The Board shall at the commencement of　each　financial　year　
appoint
　　tors, who shall be entitled to have access to all　books　of　
account,
　　hers and　other　records　kept　by　the　Board　and　to　
require　such
　　rmation and explanations as they may think fit.
　　The auditors shall audit the　statement　of　accounts　prepared　
under
　　ion 11 and shall report thereon to the Board.
　　Statements and reports to be laid on table of Legislative Council
　　The Board shall, within 6 months after the end of each financial　
year
　　uch further time as the Governor may for any　particular　year　
allow,
　　it to the Governor a report on the activities of the　Board　for　
that
　　ncial year including copies of　the　statement　of　accounts　
prepared
　　r section 11 and the report made under section 12.
　　The Governor shall cause the reports and statements　received　
by　him
　　r subsection
　　to be laid on the table of the Legislative Council.
　　Costs of administering the Fund
　　All costs and expenses incurred by the Government in
administering the
　　shall be a charge upon general revenue.
　　The Financial Secretary may　direct　that　a　supervision　fee　
to　be
　　rmined by him, in relation to such period as may be determined
by him,
　　l be charged against the income of　the　Fund　and　shall　at　a　
time
　　rmined by him be paid to him by the Board from the Fund　and　paid　
by
　　into general revenue.
　PART V PAYMENT FROM THE FUND
　　
　　Entitlement to apply for ex gratia payment
　　Subject to this Part, an applicant to whom--
　　wages are due and unpaid;
　　wages in lieu of notice are due and unpaid; or
　　the liability to be paid　a　severance　payment　has　arisen　
and　the
　　rance payment is unpaid, whether or not the severance payment is　
then
　　may apply for an ex gratia payment from the Fund in　respect　of　
the
　　s, wages in lieu of notice or the severance payment, as the　case　
may
　　or all or any of them. (Replaced 38 of 1989 s. 3)
　　An application under subsection (1) (in this Part called an
　　lication" ) shall be made to the Commissioner in　writing　in　a　
form
　　oved by him. (Amended 48 of 1987 s. 3)
　　No applicant shall apply for payment from the Fund in respect　of　
any
　　s for services rendered before 1 April 1985.
　　No applicant shall apply for payment from the Fund in respect of
wages
　　ieu of notice arising out　of　a　contract　of　employment　
terminated
　　re the commencement of the Protection of Wages on Insolvency
　　ndment) Ordinance 1987 (48 of 1987). (Added 48 of 1987 s. 3)
　　No applicant shall apply for payment from the Fund　in　respect　
of　a
　　rance payment the liability for payment　of　which　arose　
before　the
　　encement　of　the　Protection　of　Wages　on　Insolvency　
(Amendment)
　　nance 1989 (38 of 1989). (Added 38 of 1989 s. 3)
　　
　　Payment
　　Subject　to　subsections　(1B)　and　(2)　where　it　appears　
to　the
　　issioner that an employer has failed to pay any wages, wages　in　
lieu
　　otice or severance payment, as the case may be, or all or any of　
them
　　n applicant and that--
　　in the case of an employer who is not a company--
　　a bankruptcy petition has been presented against him; or
　　he has committed an act of bankruptcy within the meaning of
section 3
　　he Bankruptcy Ordinance (Cap. 6) but a petition　cannot　be　
presented
　　nst him by reason of section 6 (1) (a) of that Ordinance; or
(Replaced
　　f 1988 s. 2)
　　in the case of an employer who is a company, a winding-uppetition　
has
　　presented against that employer,
　　ay make an ex gratia payment to the applicant out of the Fund　of　
the
　　nt of the wages, wages in lieu of notice or severance payment,
as　the
　　may be, or all or any of them.
　　When the Commissioner makes a payment under subsection (1) (a)　
(ii),
　　hall give notice of the　payment　and　the　reasons　therefor　
in　the
　　tte. (Added 41 of 1988 s. 2)
　　Where an application has been made in respect of a severance　
payment
　　h is not due at the date of　the　application,　the　
Commissioner　may
　　r consideration of the application until the severance payment
becomes
　　(Added 38 of 1989 s. 4)
　　The Commissioner shall not make any payment under subsection
(1)--
　　to the applicant unless the applicant has verified his
application　by
　　atutory declaration in a form approved by the Commissioner;
　　) of an amount exceeding $18,000 in respect of wages; (Replaced
15　of
　　s. 3)
　　) (Repealed 15 of 1993 s. 3)
　　in respect of wages for services rendered more than 4 months prior　
to
　　date of application;
　　in respect of wages in lieu of notice--
　　) of an amount exceeding--
　　the equivalent of 1 month's wages of the applicant; or
　　$6,000,
　　hever is the lesser; or (Amended 15 of 1993 s. 3)
　　subject to subsection (2A), which became due more than 4 months
prior
　　he date of application; or (Replaced 38 of 1989 s. 4)
　　in respect of a severance payment--
　　of an amount exceeding the aggregate of $8,000 and half of　that　
part
　　he applicant's entitlement to severance payment in excess　of　
$8,000;
　　Replaced 45 of 1991 s. 3)
　　the liability for payment of which arose more than 4 months prior　
to
　　date of application. (Added 38 of 1989 s. 4)
　　Subsection (2) (e) (ii) shall not apply to wages in　lieu　of　
notice
　　ing out of a contract of employment terminated before the
commencement
　　he Protection of Wages on Insolvency (Amendment) Ordinance 1989
(38 of
　　). (Added 38 of 1989 s. 4)
　　) The Legislative Council may be
　　lution amend the period specified in subsection (2) (e) (i) (A)
or the
　　nt specified in subsection (2) (b), (e) (i) (B) or (f) (i).　
(Added 48
　　987 s. 4. Amended 15 of 1993 s. 3)
　　nded 48 of 1987 s. 4; 38 of 1989 s. 4)
　　
　　Review by Board
　　Any applicant aggrieved by any　decision　of　the　Commissioner　
under
　　ion 16 may in writing--
　　request the Commissioner to give reasons for that decision; and
　　after　being　given　reasons　under　paragraph　 (a),　
request　 the
　　issioner to refer the application to the Board.
　　Upon receiving a request from an applicant under subsection　(1)　
(b),
　　Commissioner shall forward all documents relating to　the　
application
　　he Chairman of the Board.
　　The Board may confirm or vary any decision of the Commissioner　
on　an
　　ication referred to it under this section or may　for　those　
purposes
　　ire the　Commissioner　to　make　further　inquiries　relating　
to　the
　　ication.
　　Additional power of Commissioner
　　Notwithstanding that in any particular case a petition referred
to　in
　　ion 16 (1) (a) (i) or (b) has not been presented against an　
employer,
　　Commissioner may, subject to subsection (2) of that section,　
make　an
　　ratia payment under that section in that case if in his opinion--
　　nded, 41 of 1988 s. 3)
　　the employer employs less than 20 employees;
　　sufficient evidence exists to support the presentation of　a　
petition
　　hat case on the ground--
　　if the employer is a company, that he is unable to pay his debts;
or
　　if the employer is a　person　other　than　a　company,　that　
he　has
　　itted an act of bankruptcy; and
　　it is unreasonable or uneconomic to present a petition in that
case.
　　Where the Commissioner exercises his discretion under　
subsection　(1)
　　ake payment, he shall give notice in the Gazette stating that,
in　his
　　ion, sufficient evidence exists　to　support　the　
presentation　of　a
　　tion on the ground--
　　if the employer is a company, that he is unable to pay his debts;
or
　　if the employer is　a　person　other　than　a　company,　that　
he　has
　　itted an act of bankruptcy.
　　Nothing in subsection (2) shall require the Commissioner to give　
more
　　one notice in respect of each employer.
　　No action shall lie against the Commissioner in respect of any　
notice
　　n under subsection (2).
　　
　　Verification of application
　　For the purpose of verifying any application under section 15,　
or　if
　　equired by the Board under section 17 (3), the Commissioner　may　

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