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Print articleKwan Siu Wa Becky V. Cathay Pacific Airways Limited
December, 2009 -
The decision by presiding judge William Stone has overruled the Labour Tribunal decision in January 2009 and allowed the appeal of Cathay Pacific. The Tribunal presiding officer held that line duty and ground duty allowances could be characterized as "daily wages". They were recurrent in nature, calculated on a daily basis and directly related to the number of hours worked. As such, they were part of their wages and should be included in the calculation of statutory holiday and annual leave pay. However, the High Court judge found that line duty and ground duty allowances are not calculated and do not accrue on a daily basis, both being calculated and accruing on the basis of variable and intermittent time segments during which other specific duties may be being performed by the cabin attendants. The claimants were paid salaries monthly. The line duty and ground duty allowances could not be regarded as daily wages and thus the Tribunal presiding officer erred in law in his ruling and they should not be included in the calculation of statutory holiday and annual leave pay.
As regards duty free sales commissions, the judge also allowed the appeal of Cathay Pacific and ruled that the claimant was a monthly-salaried employee and the fact that the monthly salary may contain an element of duty free sales commissions did not make the employee earning wages on piece rates or on daily wages vary from day to day and so should not be included in the calculation of statutory holiday and annual leave pay.
On outport allowance, the judge upheld the decision of the Tribunal such allowance (which included meals, taxi fares, laundry allowances paid to flight attendants to cover expenses incurred while they stayed overseas between flights) did not fall under the definition of wages under the Employment Ordinance and should not be included in the statutory holiday and annual leave pay calculation as it fell within the exception, namely "a sum payable to the employee to defray special expenses incurred by them by the nature of his employment". The judge agreed with Cathay Pacific's argument that the fact that the allowance is non-accountable did not matter in light of the interpretation of the exception. Pre-determined and non-accountable fixed monthly payments could constitute reimbursement of expenses and fell within the exception.
