12 November 2008
The Court of Appeal has refused Wing On Travel's application to appeal the decision of the Court of Appeal that tips and service charges paid to tour guides is "wages" under the Employment Ordinance to the Court of Final Appeal.
In 2007, the Court of First Instance ("CFI") found that the tips and service charges paid to the claimant, a tour guide, formed part of her "wages" for the purposes of the Employment Ordinance, overturning a contrary decision by the Labour Tribunal. The CFI decision was subsequently confirmed by the Court of Appeal in 2008. Please refer to our previous Legal Updates: "Hong Kong: More about "Wages" - When are Tips included? "(20 August 2007) and "Court of Appeal Confirms Tips for Tour Guide are "Wages"" (12 June 2008). The employer applied for leave to appeal to the Court of Final Appeal.
The Court of Appeal refused to grant leave to appeal. The application for leave to appeal was brought on three grounds, namely that:
- leave should be given as of right under Section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance ("Ordinance") as there are other claims and the matter was a test case,
- the matters concerned are of great general or public importance under Section 22(1)(b) of the Ordinance,
- leave should be given under the "or otherwise" ground.
Hon Rogers VP found that:
- the criterion for a test case did not exist and the amount at issue did not exceed HK$1 million,
- the case was a straightforward matter of statutory interpretation particularly following the amendment of the Employment Ordinance, and
- there were no grounds for exercising discretion under the "or otherwise" limb.
The Court of Appeal dismissed Wing On's application for leave to appeal.
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