The Hong Kong Government published the Employment (Amendment) Bill 2014 (the “Bill”) in the Gazette on 28 February 2014. The Bill was introduced into the Legislative Council on 26 March 2014. The Bill seeks to provide three days' paid paternity leave (“Paternity Leave”) as a statutory benefit for working fathers under the Employment Ordinance.
The Bill facilitates working fathers to take care of the newborn and the mother around the time of childbirth. The Hong Kong Government took into account various factors including the interests of employees and affordability of the employers, together with the prevailing practice of the private sector in formulating the Bill. This is to ensure that a reasonable balance is struck between the interests of both employers and employees.
As both Paternity Leave and maternity leave emanate from the same cause, the relevant provisions of the Bill mirror the arrangements applicable to maternity leave under the Employment Ordinance.
The Bill proposes that a working father is entitled to Paternity Leave in respect of each confinement. Multiple births in one pregnancy are to be taken as one confinement. The Bill also proposes that father of children born overseas will also be entitled to Paternity Leave. Paternity Leave is also intended to be granted even if the child is born dead or dies after birth. However, the Bill does not extend Paternity Leave to miscarriage.
To be eligible for Paternity Leave, the Bill proposes that the father of a newborn or a father-to-be must be employed under a continuous contract and have given advance notice to his employer of his intention to take Paternity Leave. The notice can be given in two ways. The working father can notify the employer his intention to take Paternity Leave at least 3 months before the expected date of childbirth and the intended date of his Paternity Leave at least 2 days before taking the same. Alternatively, he can notify the employer of each of the intended date of Paternity Leave at least 5 days before taking the same.
Paternity Leave can be taken within the period which begins 4 weeks before the expected date of the delivery of the child and ends 10 weeks from and inclusive of the actual date of delivery of the child. The 3-day Paternity Leave can be taken consecutively or separately.
If the working father has been continuously employed for a minimum of 40 weeks and submitted the birth certificate of his child to his employer, it is intended that he will also be entitled to Paternity Leave pay. The daily rate of Paternity Leave pay is proposed to be four-fifths of the employee's average daily wages in the past 12 months. Worth noting is that the Bill proposes that if the employer pays a sum of money to the working father in respect of a day on which the working father takes Paternity Leave under the employment contract or any other agreement, such sum will be deductable from the Paternity Leave pay payable under the Employment Ordinance.
It is proposed that employers will commit a criminal offence if they fail to grant working fathers Paternity Leave and Paternity Leave pay.