- Frequently Asked Questions & Answers
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What penalty will be sentenced upon conviction to people who employs unlawful foreign
domestic helpers?
A maximum penalty for 5-year imprisonment and HK$300,000 fine.
Shall the employer pay the Helper year-end bonus or double-wage?
No such provisions in current ordinances.
Can the employer dismiss the Helper on paid sick leave?
No, except in case of summary dismissal due to the Helper’s serious misconduct. Otherwise, it is an offence under which the employer is liable to prosecution and, upon conviction, to a fine of HK$100,000.
What payment or compensation shall be made by the employer to summarily dismiss the Helper?
Besides the outstanding wage, the employer shall pay the following items to the Helper:
- a) One-month dismissal wage in lieu of notice;
- b) Sickness allowance due to the Helper;
- c) Payment in lieu of any untaken annual leave;
- d) Long-service payment/severance payment (where appropriate); and
- e) v. Any other sum due to the Helper under the employment contract, e.g. free return passage, food and travelling allowance, etc
Can the Helper be entitled to a paid maternity leave or can the employer dismiss a pregnant Helper?
As per current Hong Kong’s ordinances, below lists relevant contents specified in Article 18 of Employment Contract Illustration (Chinese version) applicable for life protection of female employees and foreign domestic helpers:
- The employee is entitled to a paid maternity leave if she has been employed continuously for not less than 40 weeks immediately before the commencement date of scheduled maternity leave;
- The pregnant employee is entitled to a paid maternity leave under the premise of not more than two children;
- The period of maternity leave includes four weeks before the expected date of childbirth and six weeks aftr the actual date of childbirth;
- The employer must not dismiss the pregnant employee if she has been employed for not less than 12 weeks and has given the employer pregnancy notice;
Can the Helper be entitled to a paid maternity leave or can the employer dismiss a pregnant Helper?
When the foreign domestic helper (the Helper) has served the employer for not less than 12 weeks (i.e. three months), she can give the employer pregnancy notice, and obtain occupational protection. After the receipt of pregnancy notice, the employer must not definitely dismiss the Helper; and an employer who contravenes such provision is liable to a maximum fine of HK$100,000. In addition, if the employer does not grant maternity leave, maternity leave payment (i.e. four-fifths of normal wage) or sickness allowance for absence due to maternity examination (i.e. two-thirds of normal wage), he/she will be fined of maximum HK$50,000.
If the employer dismisses a pregnant Helper, he/she shall not only conduct normal dismissal procedures and compensation, but also grant the Helper a wage of seven days as dismissal compensation. To be worth attention, among the contents of maternity protection in the revision draft (1996) of Employment Ordinance, the most controversial provision is that the employer is forbidden to ask the pregnant employee to conduct any rough, heavy, dangerous or harmful work. The Helper can require the employer to not assign the frequent conduct of rough, heavy and any other work of harming pregnant women 14 days after giving the pregnancy notice, and any employer requiring such work without reasonable explanation will be fined of maximum HK$50,000.
For common ordinance questions about foreign domestic helpers, please visit the following webpage of the Labour Department:
Normally, the ordinances for local employees are partially applicable for foreign domestic helpers. Please visit the following webpage of the Labour Department:
http://www.gov.hk/tc/residents/employment/labour/index.htm
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- Frequently Asked Questions & Answers
What shall I do if I am difficult to communicate with the Helper?
Despite language training before the arrival at Hong Kong, the Helper does not use the Cantonese as native language, and thus sometimes is inevitably difficult to communicate. The employer can frequently communicate with her with Cantonese. We also offer free Cantonese training course for the Helper. If you need such course, please call our service hotline, and we will arrange professional staffs for follow-up.
What shall I do if the Helper is not clever and does not inquire for any unknown content?
Be afraid of blame by the employer, the Helper will say yes to any unknown content. The employer can guide the Helper patiently, or demonstrate in person, then ask her to repeat, and guide or remind nearby her until her full understanding.
What shall I do if the Helper is “go in one ear and out the other” to frequently forget and mistake?
For the content of her frequent forgetting and mistake, the employer can illustrate in detail or demonstrate in person, and ask the Helper to write down for future reminding.
Is the teaching of the child’s homework within the scope of the Helper’s domestic duties?
Current Employment Ordinance doest not specify in detail the scope of domestic duties (for example, Is the teaching of the child’s homework within the scope of the Helper’s domestic duties). In fact, there seem some ambiguous contents in the definition of “domestic duties”. However, according to normative understanding, domestic duties include: laundry, ironing, cooking, house cleaning, child-caring, and garden/pet caring). Therefore, the teaching of the child’s homework can be regarded a part of domestic duties.
Can the employer require the Helper to care the child at his/her work place (e.g. store)?
It depends on actual conditions, and the employer or the Helper shall consult the Labour Relations Division of Labour Department under such circumstance. In principle, the child-caring in the employer’s store can be regarded as a part of the Helper’s domestic duties. However, if the Hepler is required to care the child in the employer’s store for long term, the employer will breach the provisions of I.D.407 of the Employment Contract (i.e. the Helper shall act as the assistant of domestic duties at the employer’s residence.
Is the massaging the employer or his/her old people within the scope of the Helper’s domestic duties?
The Helper is entitled to refuse such request, because it is not within the scope of the Helper’s domestic duties. If the employer forces the Helper to massage him/her or if the Helper is dismissed due to no obedience to such request, the Helper is entitled to complain to the Labour Relation Division of the Labour Department and seek for help.
Is the employer liable to care about the Helper who can not summarily leave Hong Kong due to the accident upon the termination or expiry of the Employment Contract?
The employer really does not worry about this, because this is not the obligation of the employer. Firstly, upon the termination or expiry of the Employment Contract, the employer must notify the Immigration Department and grant the Helper air ticket from Hong Kong to place of origin (see Clause 7 of the Illustrations on the Employment Contract (Chinese)). After the employer notifies the Immigration Department, the nature of the Helper’s entry visa changes thereupon, so that the Helper stays at Hong Kong in the name of traveller and then is supervied by the police and the Immigration Department.
Why can the Helper not summarily leave Hong Kong upon the termination or expiry of the Employment Contract?
The Helper can not summarily leave Hong Kong if she:
- Is involved in a labour dispute at Hong Kong;
- Applies for stay extension in the name of traveller;
- Stays unilaterally beyond the valid period of visa;
- Leaves Hong Kong to China mainland (e.g. Shenzhen); and then she can apply for a stay extension of 14 days.
Under what circumstances can the employer terminate the Employment Contract unilaterally without any notice?
The employer can terminate the Employment Contract unilaterally without any notice under the Helper’s improper behavior specified in Clause 10 of the Illustrations on the Employment Contract (Chinese): frequent wilful disobedience to order, misconduct and neglectful of duty. However, no concrete example or standard is specified in detail, and thus there are some ambiguous contents. But this section is the sole guidance. At any labour dispute for other reasons, the Labour Department will make final decision as per the Employment Ordinance, Common Law and past judicial precedents of the court. If the Helper is repeatedly guilty of same misconduct, the employer shall ask her to sign the letter of mistake acknowledgement or apology, which will become the future evidence for her dismissal. If the Helper is convicted for the guilt of criminal offence (e.g. burglary) or is arrested and convicted for the unlawful street trading, the employer can summarily dismiss her without any compensation (except air ticket).
How does the employer in lieu of the Helper claim to the insurance companies and declare to relevant governmental departments?
For the Helper’s accidental injury or sickness at the work, the employer normally in lieu of the Helper claim insurance companies through the following procedures (and the actual procedures are subject to the concrete requirements of specific insurance company):
- After the learning of the Helper’s accident with a sick leave of more than 3 days, the employer shall notify relevant conditions of work injury summarily to insurance companies;
- Within 14 days, the employer shall submit the Form 2 (in duplicate) to the Labour Department, completing correct materials and accident process; and hand Form 2, copy of the Helper’s Identity Card and original of Sick Leave Certificate issued by registered western physicians to insurance companies;
- The employer shall hand other Sick Leave Certificates in time to insurance companies for archiving;
- With the Helper’s sick leave of not more than 7 days and without permanent disability of affecting work competence, the employer shall conclude an agreement with the Helper in written or verbal way to directly settle compensation matters. In such way of compensation settlement, the employer just completes the days of sick leave, amount of compensation and date of payment in Part II of Form 2, indicating a direct settlement way; and the Helper needs not receive leave cancellation or injury judgment. According to the actual conditions and contents of insurance policy, the employer can directly claim to insurance companies;
- With the Helper’s sick leave of more than 7 days or not in direct settlement way, the employer shall urge the Helper to go to the Occupational Medical Group of the Labour Department or Assessment Committee for Employee Compensation as per time provisions for leave cancellation and injury judgment;
- vi. After the leave cancellation or injury judgment, if the Helper is entitled to only sick leave through the doctor or is assessed as < 5% permanent disability, the Labour Department will issue the Compensation Assessment Certificate (Form 5) indicating the amount payable. The employer shall hand the origin of Compensation Assessment Certificate to insurance companies for claiming;
- If the Helper is assessed as > 5% permanent disability, the Labour Department will issue the Assessment Certificate (Form 7), and the employer hands the certificate to insurance companies for claiming. As per the Employees’ Compensation Ordinance, the employer shall first conclude the Compensation Agreement (in triplicate) with the Helper injured or sick at the work, and then hand the signed agreemetn to the Labour Department for review; and after the receipt of approved agreement, the employer shall summarily hand its original to insurance companies for handling compensation matters.
The Domestic Helper’s Comprehensive Insurance has a cooling-off period not subject to guarantee matters and some items. The employer shall thoroughly read the terms of insurance policy so as to ensure his/her rights and benefits.
Can the Helper refuse to work outdoors when the Typhoon Signal No.8 is hoisted?
No. The Labour Department just issues the Work Guidance at Typhoon or Rainstorm Warning of no legal effect, and the employer needs not to observe it. However, as per the “Employees’ Compensation Ordinance“, any injury of the employee within 4 hours of going off/on duty shall be regarded as occupational injury when the Black Amber Rainstorm Warning and Typhoon Signal No.8 are hoisted. However, the insurnance normally does not cover the occupational injury at natural calamity (e.g. when the Typhoon Signal No.8 is hoisted). Therefore, if the employer requires the Helper to work outdoors when the Typhoon Signal No.8 is hoisted, he/she may be liable to compensate for the Helper's occupational injury by himself/herself.
Shall the employer take out travel insurance for the Helper when he/she asks her to leave Hong Kong to travel together?
Yes, because it is the employer that asks the Helper to travel.
Shall the employer grant free air ticket for the Helper to return to the place of origin for vacation before the expiry of employment contract?
No. As per relevant legal provisions, after the expiry of employment contract, the employer shall grant free single air-ticket, travel allowance and food allowance of daily HK$100 for the Helper to return to the place of origin for the vacation. However, the Helper may sometimes require the employer to grant in advance contractual expiry leave, free contractual-expiry air-ticket, travel allowance and food allowance; and such fee or leave needs not be granted upon the contractual expiry. Therefore, the employer can conclude an agreement in person with the Helper according to actual conditions.
Footnote: More Q&As are available in the “Practical guide for employment of foreign domestic helpers – what foreign domestic helpers and their employers should know” at the webpage of the Labour Department: http://www.labour.gov.hk/tc/public/pdf/wcp/FDHguide.pdf.
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