小費屬薪金領隊上訴得直
永安旅行社前領隊藍碧珊不滿離職時，有薪假期不計入佔總收入近九成的小費，只以底薪計算，2004 年連同14 名領隊入稟勞審處追討假期欠薪，被判敗訴。永安不承認這是公司所支付的員工薪金，所持理據為小費屬完成帶團後，由團友直接給予領隊。
07 年，藍碧珊在高院上訴得直，法官指條例清楚訂明小費屬於薪金，估計可追討共約15 萬元離職補償。永安不滿判決，先後向上訴庭及終審法院提出上訴，但遭駁回。旅遊界預計裁決將掀起入稟索償潮，涉及金額可能高達6 億至8 億元。
【本報訊】永安旅遊一名前領隊，爭取小費算入1,800元的底薪，以計算離職假期補償勝訴。終審法院昨決定不受理永安的上訴，為是次法律爭拗畫上句號，估計會引發涉款1.5億元的索償潮。業界人士擔心，旅行社經營會更困難，而市民參加旅行團，或要承擔5至10%的團費增幅。
旅遊業議會總幹事董耀中對判決表示失望，他說若旅行社要作巨額賠償，將難以應付，望能與工會達成共識。他又指，日後領隊和導遊小費或納入團費內，估計團費會增加5至10%，而判決對40至50家大型旅行社有較大影響。
永安對裁決深表失望，認為法例在應用上有技術困難，希望勞工處及勞資審裁處能提供明確和清晰指引。康泰旅行社總經理劉美詩擔心追索潮影響業界經營，康泰已於07年7月開始將小費納入領隊薪金，但仍維持分開團費和小費收取，以鼓勵領隊帶團時提供優質服務。東瀛遊執行董事褟國全表示，希望07年之前的小費可免被追索。中國旅行社旅行團業務部副總經理吳熹安說，日後或要求旅客在報團時即付小費。
涉款逾1.5億元
香港旅遊業（外遊）領隊及導遊工會主席湯劍生指，裁決為領隊贏取了一個保障。全港現有兩千多名全職領隊，估計有逾一半人會入稟，以每人追討10至15萬元計算，涉款逾1.5億元。他相信會有領隊轉職潮，以便追討補償。
事緣永安前領隊藍碧珊於04年向勞審追討假期補償敗訴，在高院上訴得直。上訴庭去年5月駁回永安上訴。終審法院常任法官李義昨指，領隊小費與他們的工作掛，符合《僱傭條例》內「小費」的定義，應為工資一部份。
案件編號： FAMV55/08
CACV 394/2007
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 394 OF 2007
(ON APPEAL FROM HCLA NO. 19 OF 2006)
----------------------
BETWEEN
LAM PIK SHAN 15th Claimant
and
HONG KONG WING ON TRAVEL SERVICE LIMITED Defendant
----------------------
Before: Hon Rogers VP, Le Pichon JA and
Suffiad J in Court
Date of Hearing: 2 May 2008
Date of Handing Down Judgment: 9 May 2008
----------------------
J U D G M E N T
----------------------
Hon Rogers VP:
1. I
agree with the judgment of Le Pichon JA.
I would merely add that as is stated in that judgment it was Mr Yuen
SC’s submission that this court was constrained to decide in his client’s
favour by reason of the terms of the judgment of the Court of Final Appeal in
Lisbeth Enterprises Ltd. v Mandy Luk (2006) 9 HKFAR 131. In that judgment the Court of Final Appeal
came to the conclusion that the provisions in the Employment Ordinance, Cap. 57
relating to commission were unworkable where the commission was calculated at
rates that varied on a monthly basis.
That is not the situation in this case, which relates to tips which are
based on a daily rate. In the second
place it is quite clear that the legislature intended that tips should be taken
into account in calculating wages. That
is the clear intention emerging from the Ordinance itself. I am fortified in that conclusion because in
passing the Employment (Amendment) Ordinance 2007, and in particular sections
10-15, the legislature has removed any difficulty there might be in making the
relevant calculations. In the absence of
the new provisions, had there some supposed difficulty in the method of
calculation, it would have been the function of this court to give effect to
the manifest intention of the legislature that tips should be taken into
account in the calculation.
2. I
also feel constrained to add that the argument on behalf of the defendant that
the tips in this case did not come within the meaning of tips as defined in the
Ordinance because they were not recognised by the employer as part of the
employee’s wages verges on the disengenuous to say the least. It is abundantly clear that the defendant not
only recognised the tips as part of the wages but ran its business on the basis
that they would be paid. Putting an
argument to the contrary does no credit to those prepared to advance it and
those who wish to have it advanced on their behalf.
Hon Le Pichon JA:
Introduction
3.
This is an appeal from an order dated 11 June 2007 of Yam J allowing the
appeal of the 15th claimant from the decision of the deputy Presiding Officer
dated 11 April 2006.
4.
The 15th claimant and 14 other claimants were former employees of the
Hong Kong Wing On Travel Service Ltd (“the defendant company”), a tour
operator. They were employed as “counter
sales/escorts”. The principal dispute
between the parties and which led to the claimants making claims in the Labour
Tribunal was whether “tips” received by the claimants from package tour members
should be taken into account when calculating the annual leave pay and holiday
pay of the claimants.
5.
The Labour Tribunal dealt with the claim of the 14th claimant as a test
case. That claim was dismissed as was
the application for review. As the 14th
claimant was unable to obtain legal aid to take the matter further, the 15th
claimant proceeded with her claim which was likewise dismissed by the deputy
Presiding Officer. On appeal, Yam J
allowed her appeal and remitted the case to the Labour Tribunal for assessment
of the 15th claimant’s daily wages.
Background facts
6.
The 15th claimant entered into an employment contract with the defendant
company on 7 April 1997 for the position of a “counter sales/escort” at a
salary of $1800 per month. When she left
in 2003, her salary was $2000 per month.
These salaries could be said to be barely at subsistence level.
7.
So far as working hours are concerned, the contract set out schedules of
the hours of work for counter sales staff which do not apply when the employee is
escorting a tour overseas. In such a
case, clause 4 of the contract stipulated that “24 hours full-time attendance
to customers is expected.” Clause 11 of
the contract then provided as follows:
“11. Other Conditions
You are required to fully devote your time and effort to the service of
the Company, and to abide by the rules and regulations laid down by the Company
Policy/Staff Handbook which may be varied from time to time …”
8.
The Staff Handbook contained, inter alia, the following provisions:
“6.4 Regulations on leading tours
Employees must follow the company’s arrangement for leading tours and
they cannot refuse to lead tours.
…
Employees are forbidden from demanding excess, refusing to accept (tips)
or forcing customers to pay tips. Tips
can only be collected from customers on the last day of tour.”
9.
The undisputed facts as recorded in § 5 of the deputy Presiding Officer’s
Reasons for Judgment dated 28 January 2005 are as follows:
“
(1) The tour package sales by the
Defendant (hereinafter referred to “tour fees”) include air tickets, hotel
accommodation fees, traveling expenses, meals (whole tour or part of it) and scenic
tours arrangements;
(2) The Defendant company
provides tour package sales price lists at its shops in different districts,
apart from tour fees and related expenses, it also listed an amount of
“recommended service tips of the whole tour (Hong Kong tour escorts, local tour
escorts and drivers (Hong Kong dollar))”;
(3) The customers have to pay the
tour fees directly to the Defendant company before departure;
(4) Before the tour ends, the
respective tour escorts would obtain from the patrons directly the recommended
service tips as listed in the price list;
(5) Recommended service tips
include the tour escort’s personal service tips as well as the local tour
escorts’ service tips, drivers’ tips, hotel porters’ fees, etc. for the whole
trip, and these fees were prepaid by the respective tour escorts personally
during the tour;
(6) After deducting the “head
tax” paid prior to departure, the local tour escorts’ fees, drivers’ fees, and
hotel porters’ fees, etc., the balance amount from the recommended service tips
obtained would become the tour escorts’ personal service tips (herein after
referred to as “service tips”);
(7) If the tour escorts were
unable to collect the service tips, the (Defendant) company would not reimburse
or pay any balance thereof to the tour escorts or provide assistance to the
tour escorts in seeking recovery from the patrons;
(8) If the tour escorts should
receive more than the recommended service tips, they are not required to pay
the excess to the (Defendant) company;
(9) After the tour and after
returning to Hong Kong, the tour escorts are required to fill in a “Tour Guide
Completion Report” (herein after referred to as “Report”) (document number
C14-16), and sign and return to the officer in charge of the branch for counter
signing;
(10) Since 2002, the Defendant
company included the tour escorts’ basic salary, difference in holiday pay and
service tips obtained from the tours when filing their tax returns with the
Inland Revenue Department.”
10.
In §§ 14 and 15 of his Reasons, the deputy Presiding Officer elaborated
on the “head tax” referred to in § 5(6).
Tour operators such as the defendant company required tour escorts to
pay the tour company a fee (known in the industry as the “head tax”) in cash or
by credit card before they would be given information relating to the tour they
would be escorting. In other words, the
tour escorts had to pay the head tax upfront.
The arrangement is not recorded in any document. The tour company decided what the head tax
would be for any particular tour. For
tours at the normal price, the evidence before the deputy Presiding Officer was
that it would generally represent 20% of the recommended service tips listed in
the tour package price list. For discounted
or special tours, the percentage would be greater.
11.
Given section 6.4 of the Handbook, those employed as counter
sales/escorts such as the 15th claimant would be in breach of their contracts
of employment if they refused to lead tours assigned by the defendant company
albeit that taking the tours so assigned entailed making upfront head tax
payments which could make substantial inroads into, if not deplete, basic
salaries (depending on the tour and number of tour participants) although the
head tax would ultimately be recouped out of tips given by the tour
participants at the end of the tour.
Indeed it will be seen from Form 2 filed by the claimants that in each
case, the net tips earned in a month would be several multiples of the basic
salary and in some cases, they exceeded 10 times the basic salary.
The statutory provisions
12.
The Employment Ordinance, Cap. 57 contains specific provisions relating
to the rate of holiday pay and annual leave pay. Section 41 provides as follows:
“ (1) Holiday pay shall be a sum equivalent to
the wages which the employee would have earned on a full working day.
(2) Notwithstanding subsection
(1), where an employee is employed on piece rates or where the daily wages of
an employee vary from day to day, the holiday pay shall be a sum equivalent to
the average daily wage earned by the employee, and for the purposes of this
subsection the average daily wage shall be the average of the daily wages
earned by the employee on each day on which he worked during every complete
wage period, comprising not less than 28 days and not more than 31 days,
immediately preceding or expiring on the holiday or first day of the holidays.”
Section 41C makes similar provisions (with
appropriate adaptations but no difference in substance) relating to the rate of
annual leave pay.
13.
The interpretation section(S.2 )defines “wages” as meaning
“all remuneration, earnings, allowances including travel allowances and
attendance allowances, attendance bonus, commission, overtime pay, tips and service charges,
however designated or calculated, capable of being expressed in terms of money,
payable to an employee in respect of work done or to be done under his contract
of employment, but does not include:
…
(c) any commission which is of
a gratuitous nature or which is payable only at the discretion of the employer.
…”
The list of specific exclusions is long and
although paragraph (c) excludes any commission that is gratuitous or
discretionary, no parallel provision exists in relation to tips, no doubt
recognising its discretionary nature.
14. The
phrase “tips and service charges” is itself defined. In relation to wages, it means
“sums of money received, directly or indirectly, by an employee in the
course of and in connection with his employment which are -
(a) paid or derived from
payments made by persons other than the employer; and
(b) recognized by the employer
as part of the employee’s wages”.
This appeal
15.
The principal issue arising is whether net tips received by the
claimants as tour guides or escorts form part of their “wages” for the purposes
of calculating the rate of holiday pay and of annual leave pay in section 41
and section 41C respectively. The
subsidiary issue relates to the claim for rest day pay.
Whether
“tips” part of “wages”
16.
Put shortly, Mr Yuen SC who appeared for the defendant company submitted
that given the decision of the Court of Final Appeal in Lisbeth Enterprises Ltd
v Mandy Luk (2006) 9 HKFAR 131, this court has no option but to allow the
appeal. It is therefore necessary to
look closer at the Lisbeth case. In that
case the employee who worked in the health and beauty club operated by the
company was entitled not only to a salary but also to a commission on sales
made by her. The contractual commission
was calculated on a monthly basis, payable according to fluctuating monthly
results on a sliding scale. The Court of
Final Appeal held that contractual commission was not to be included in the
calculation of holiday pay and annual leave pay. The reasoning appears from the following
passage in the judgment of Bokhary PJ:
“ 23. Plainly no mode of calculating holiday pay
or annual leave pay based on commission is to be found in ss.41(1) or
41C(1). Those subsections are directed
to what the employee “would” have earned.
But commission involves what the employee might have earned, depending
on whether the contractual requirements for entitlement to commission are
satisfied. To the extent that provision
is made for holiday pay and annual leave pay based on what the employee might
have earned, that is done by ss.41(2) and 41C(2) which cater for piece rates
and daily wages that vary from day to day.
“Piece rates” have nothing to do with commission. What about “daily wages”? Perhaps the term “daily wages” applies only
to wages in the sense of salary. But let
us suppose for the sake of the present argument that the term extends to
commission.
24. What then would supply the
requisite quality of dailiness? Wages
may not have to be paid on a daily basis before they can be regarded as “daily
wages”. But I do not see how wages can
be so regarded unless they at least accrue and are calculated on a daily
basis. Subject therefore to the
possibility that ss.41(2) and 41C(2) can be read to cover contractual
commission accruing and calculated on a daily basis in amounts varying from day
to day, those subsections do not cater for commission. It follows that holiday pay and annual leave
pay form a context which requires that the word “wages” be read as excluding
commission save possibly for commission accruing and calculated on a daily
basis in amounts varying from day-to-day.”
17.
The first matter to note is that the present case is not about
contractual commission. As will have
become apparent, factually, the present case is very different.
18.
In this connection, it should be noted that it is common ground that the
defendant company provides the patrons of their package tours with its
recommendation as to the amount of tips to be paid to the tour guide or
escort. A typical example is to be found
in a document headed “Note to Tourists to Australia or New Zealand” given to
package tour patrons. Item 5 of “Special
things to note” reads as follows
“5. The suggested amount of
tips and service charges for tourist escort, local tourist guide and driver of
the coach is HK$120 each person a day.”
19.
It is also common ground that the defendant company issues to its tour
guides/escorts documents written on the notepaper of the defendant company with
information relating to ‘tipping’ for countries to which it offered package
tours. The following is a representative
sample:
“MEDITERRANEAN SEA TOUR – TIPS PAY OFF STANDARD
EGYPT:
GUIDE:
$1.5 - $2.0 PAX/DAY
$2.0 PAX/DAY
-
NORMAL PATTERN
-
LUXOR PATTERN
REPRESENTIVE:
$0.5 PAX/DAY
$1.0 PAX/DAY
-
NORMAL PATTERN
-
LUXOR PATTERN
DRIVER:
$1.5 PAX/DAY
$2.0 PAX/DAY
$75P PAX
$50P PAX
1LE PAX
50P PAX
1LE PAX
-
NORMAL PATTERN
-
LUXOR PATTERN
-
TRANSFER
-
LUXOR – WEST BANK
– EAST BANK
-
ASWAN
-
FULLUCA
ORGANISER:
1LE /PAX
50P /PAX
50P /PAX
-
INTERNATIONAL
-
DOMESTIC
-
TOUR
TABLE TIPS:
50P /PAX
1LE /PAX
-
BREAKFAST
-
LUNCH/DINNER
PORTER:
30P /PCS
-
CHECK OUT ONLY
GUIDE (OPTION):
$1.0 /PAX
…”
20. Prima
facie, tips received from tour participants would fall squarely within the
statutory definition of “wages”. The
real question is whether a workable mode of calculation exists for working out
the net tips and whether it can be said to accrue daily.
21.
As already noted, the discretionary nature of tips is not a bar (as
distinct from the case of commissions) to their forming part of an employee’s
wages. Further any discretion in the
payment of a tip would be that of the tour participant and not employer i.e.
the tour operator. While the amount of
tips received per month may vary, depending on a number of factors including
the number of days spent escorting tours, the type of tour, the number of
persons joining the tours etc., in the present case, these factors do not pose
any particular difficulty in the way of calculating daily wages. Not only is the rate of recommended tips made
on a per person per day basis, the tips the tour guide/escort had to defray in
the foreign country are also expressed in a similar fashion. Even if the tour guide does not receive his
tips until the end of the tour, given that the duration of the tour is a fixed
number of days, the net tips per day can be said to “accrue” on a daily basis
and are readily calculable on the same basis.
22.
Mr Ho SC who appeared for the 15th claimant referred the court to
subsection (2) of section 41 which is quoted in § 12 above. That provision is applicable where the daily
wages of the employee vary from day to day.
In that event, the holiday pay is a sum equivalent to the “average daily
wage” earned by the employee and the subsection sets out a self-contained
formula for calculating that average daily wage. Mr Ho submitted, and I agree, that section
41(2) is applicable to the calculation of the rate of holiday pay and, mutatis
mutandis, section 41C(2) is applicable to the calculation of the annual leave
pay. Contrary to Mr Yuen’s submissions,
in my view, a workable mode of calculation does exist for working out the net
tips on a daily basis on days that the escort is leading a tour. The objection based on the absence of a
workable mode is thus misconceived.
23.
Mr Yuen also submitted that the judge went beyond his jurisdiction in
reaching a different conclusion from the deputy Presiding Officer on two
matters, namely, that there was a collateral contract which enabled the tour
guide/escort to earn tips and that the defendant company never recognized the
tips as part of the employee’s wages.
24.
The deputy Presiding Officer’s reasoning can be found in § 32 of his
Reasons dated 28 January 2005:
“32. … This payment of “Head Tax”
in exchange for the information for tour which then provides an opportunity to
the tour escorts to earn service tips is believed to be a transaction outside
the employer employee contractual term, and it could be regarded as the tour
escorts buying a chance to earn service tips from the (Defendant) company
(“acquisition of right to earn tips”).
Reason being, there is no document (including terms of the employment
contract) stating that the tour escorts have to pay for the “Head Tax” to the
(Defendant) company and such payment should not be regarded as fulfilling an
obligation or part of the terms of the employment contract but it is a usual
contractual transaction. Taking into
consideration that the Defendant company only collects the “Head Tax” from the
tour escorts and is not involved in the collection of the recommended service
tips and bearing any risks thereof, it is believed that the employer should not
be regarded to have subjectively recognized the service tips as part of wages,
and therefore does not satisfy the interpretation of “tips and service charges”
under item (b).”
25.
Plainly, in reaching the conclusion as to the existence of a collateral
contract, the deputy Presiding Officer had overlooked the critical fact that it
was part of the contractual duties of the employee engaged as counter
sales/escort to “lead tours”. Regulation
6.4 of the Handbook noted in § 8 above does not give him an option to decline
to do so. It was thus an error of law
which the judge below was perfectly entitled to put right.
26.
On the question as to whether the defendant company recognized tips
received from the tour participants as part of the tour guide’s wages, on the
facts, on any objective view, there can only be one answer and that answer has
to be in the affirmative. In other
words, the only reasonable inference to be drawn from the facts is that the
defendant company did recognize that tips would be part of the tour guide’s
wages.
27.
It is sufficient to highlight a few salient facts. The claimants were employed to act in a dual
capacity: when required to lead tours abroad they would be on duty for 24 hours
without any overtime pay; when they were not leading tours, they would work
normal working hours as counter sales staff.
They were paid subsistence level salaries. It was recognized that they would receive
tips from tour patrons. The head tax
arrangement enabled the defendant company to cream off, in advance, a
percentage of the tips to be received by the tour guides, and allowing the tour
guides to keep the net amount of tips after recouping the head tax paid in
advance to the defendant company and local tips which had to be defrayed. Indeed, not only did the defendant company
consent to the tour guides receiving tips, under the regulations in the
Handbook, they could not refuse to accept tips.
The notion that any person would perform the duties of counter
sales/escort whose sole income would be the basic salary is simply absurd and
defies belief. The reality is that the
income of the tour guides comprised not only the basic salary but also the net
tips earned through performing their duties for the defendant company.
The rest day claim
28.
The ordinance permits an employee, by agreement, to work for his
employer on a rest day. The terms of
such an agreement are obviously a matter between the employer and the
employee. The 15th claimant had been
paid for working on rest days at a rate based on the basic salary. Her claim in respect of rest day pay was that
it should be reckoned by taking into account tips received.
29.
The deputy Presiding Officer rejected her claim by reasoning as follows:
“16. … Since I have already ruled
that the service tips should not be included as part of the basic salary when
calculating leave pay, and based on the case of Pun Pabitra v. Wong Kan Hing
(HCLA 30/1997) wherein it was pointed out that the employer and employee could
agree on the remuneration of work on rest days, and that C15 had not raised any
objection and had received rest day pay calculated based on the basic salary in
the past years, I rule that this item of claim cannot sustain.”
See his Reasons for Judgment dated 3 May
2006. The judge, having concluded that
the 15th claimant’s wages should include tips, remitted the whole case to the
Labour Tribunal for assessment of the daily wages for the purpose of assessing
the various items of claims in her application.
30.
Mr Yuen submitted that since the deputy Presiding Officer had made a
factual finding that the 15th claimant had accepted payment for work done on
rest days at a rate based on the basic salary throughout her employment and had
never raised any objection, it was not open to the judge to reopen the
matter. But one of the reasons that led
the deputy Presiding Officer to conclude that tips should not be included as
part of rest day pay was his earlier erroneous ruling that tips should not be
included as part of the 15th claimant’s salary when calculating annual leave
pay and holiday pay. If, as is my view,
the deputy Presiding Officer was wrong on that issue, the judge had every
reason to remit the matter to the Labour Tribunal for assessment of the 15th
claimant’s daily wages.
Conclusion
31.
For the reasons stated, I would dismiss this appeal. I would also propose that there be an order
nisi of costs in favour of the 15th claimant, such costs to be taxed in
accordance with the legal aid regulations.
Hon Suffiad J:
32.
I agree with the judgment of Le Pichon JA and have nothing to add.
Hon Rogers VP:
33.
There will therefore be an order in terms of paragraph 31 above.
(Anthony Rogers) (Doreen Le Pichon) (A.R.
Suffiad)
Vice-President Justice of Appeal Judge
of the Court of First Instance
Mr Ambrose Ho SC & Mr Erik Shum,
instructed by Messrs K.B. Chau & Co., for the 15th Claimant/Respondent
Mr Rimsky Yuen SC & Mr Frederick H F
Chan, instructed by Messrs Winnie Mak, Chan & Yeung, for the
Defendant/Appellant
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