Employment Entitlements

  • Wages

 

The helper should receive the amount of wages stated in the employment contract.  It is a serious offence for an employer to underpay a domestic worker. (Advice on how to protect yourself from underpayment is discussed in the later part of the manual.)

 

All foreign domestic helpers in Hong Kong should not be paid less than the Minimum Allowable Wage or the amount stated in the employment contract, whichever is the greater.

 

 

If an employer tries to negotiate a salary that is less than the Minimum Allowable Wage, you are entitled to reject that.

 

Any arrangement between the employment agency and your employer to reduce a FDH’s wages below the minimum allowable wages is unlawful and unenforceable.

 

Employers must pay wages to the helper within seven days from the due date of the payment specified in the contract.

 

If wages are not paid within one month from the due date, the helper may deem herself to have been dismissed by the employer without notice.  If the helper chooses to exercise such right, the employer is required to pay the helper wages in lieu of notice in addition to wages in arrears and other statutory and contractual termination entitlements.

 

Ø  Wage deductions

 

The employer may deduct wages in the following situations:

 

  • An employer is allowed to deduct from the worker’s wages to compensate for the damage to the employer’s goods or property that was caused by the worker’s negligence.  The sum that may be deducted will be the value of the damage, subject to a limit of HK$300 per item. These deductions in any one wage period (usually one month) shall not exceed 25% of the worker’s wages in that wage period. However, this does not preclude the employer from seeking full compensation for the damage or loss the employer suffered but not through unilaterally imposed wage deductions.

 

  • The employer may also make deductions from wages for absences from work but the employer may not make such deductions for extra rest days that the employer forced the worker to take.

 

  • The employer may deduct wages for recovery of any advance or over-payment of wages made to the domestic helper. The total sum deducted in any one wage period must not exceed 25% of the wages payable to the domestic helper in that wage period.

 

  • Deduction can be made with the domestic helper’s written consent for the recovery of any loan made by the employer to the domestic helper.

 

The total amount of all deductions in a month, excluding those for absence from work, should not exceed 50% of the helper’s wages in that month.

 

 

Ø  Dos and Don’ts

 

If the employer makes any deductions from the worker’s wages, this should be reflected in the receipt to be signed by the worker. Do not sign a false receipt stating that you have received your salary in full if wage deductions were made, even if the employer is entitled to make such deductions.

 

Keep a record of the wages you receive including the amount and date you received the money.

 

Notify the Labour Relations Division of the Labour Department and Immigration Department in writing if you are underpaid or if the employer makes unlawful wage deductions. Keep a copy of your letter and the authorities’ reply.

 

Do not use the employer’s address as the return address for your correspondence with the authorities as the letters might be intercepted by the employer and withheld from you.

 

 

  • Suitable Accommodation

 

Due to generally small sizes of flats in Hong Kong, not all families can afford to provide a private room exclusively for their domestic workers.  Having said that, the employer is required to provide the domestic worker with free suitable and furnished accommodation with reasonable privacy, as specified in the contract. , What the employer must not do is to misrepresent the accommodation arrangement in the employment contract.  Some domestic workers are made to sleep in common areas such as the living room, kitchen or even in the bathroom even though the contract states that they would be provided with a private room or share one with the employer’s children.  Of course a helper coming to work in Hong Kong for the first time, will have signed the contractual undertaking about accommodation “blind”, now knowing in advance the true nature of the accommodation she will be given.

 

Inadequate accommodation which departs substantially from the terms of the employer’s undertaking in the contract is not permissible. The helper may report this to the Immigration Department in writing. It would help to have a photo of the sleeping accommodation enclosed with the letter.

 

Sharing a room with an adult or teenager of the opposite sex is also unacceptable.

 

Under the New Conditions of Stay imposed by the Immigration Department, foreign domestic helpers are not permitted to reside outside the employer’s address except if the worker has been granted express permission by the Immigration Department. Such permission is rarely granted.

 

 

  • Food

 

The food provided by the employer should not only be sufficient in quantity but also be of reasonable quality.  If the employer does not tell you what to eat or whether you may eat the food available in the household, you should ask. Do not assume that the employer refuses to provide you with food. If the employer clearly tells you that you are not permitted to eat their food or if the food provided is inadequate then ask for a food allowance as stated in clause 5(b) your standard employment contract.

 

 

  • Rest Days

 

You are entitled to one rest day in every period of seven days. A rest day means that you may abstain from working for the employer for a continuous period of 24 hours.

 

Your employer decides your rest day. Rest days may be given on a regular or irregular basis.  If the rest days are not fixed, the employer should notify the domestic worker of her rest days before the beginning of each month. It is unacceptable for the employer to tell you that you may take the day off only the night before or even on the day itself.

 

You and your employer may agree to substitute another day for your regular rest day.  The substitute rest day must be granted within the same month and before the original rest day or within 30 days after it.

 

You should not feel forced to perform duties on your rest day.  However, you may work voluntarily on your rest day.

 

 

Dos and Don’ts

 

If you are not granted regular weekly rest days, keep a record of the specific dates of rest days that you took, instead of noting down the appointed rest days that you were not allowed to take. This way it is easier to count how many days you are owed by deducting the number of days you have taken from the total rest days you are entitled to.

 

Notify the Labour Department in writing if you are denied statutory rest days.

 

  • Statutory Holidays

 

You are entitled to 12 statutory holidays per year, regardless of how long you have been working.  If you have been employed continuously by the employer for three months preceding any of these holidays, you are entitled to holiday pay.  The holidays are:

 

v January 1 (New Year’s Day)

v Lunar New Year’s Day

v The second day of the Lunar New Year

v The third day of Lunar New Year

v Ching Ming Festival

v May 1 (Labour Day)

v Tuen Ng (“Dragon Boat”) Festival

v July 1 (HKSAR Establishment Day)

v The day following the Chinese Mid-Autumn Festival

v Chung Yeung Festival

v October 1 (National Day)

v Chinese Winter Solstice Festival or Christmas Day (at the option of the employer)

 

 

If your employer requires you to work on a statutory holiday, the employer must give you at least 48 hours’ prior notice. If you work on a statutory holiday, you are entitled to another holiday within 60 days before or after the holiday on which you worked.

 

The employer cannot force you to accept payment in lieu of a statutory holiday.

 

If a statutory holiday falls on your rest day, a holiday should be granted on the day following the rest day which is not a statutory holiday or an alternative holiday

 

 

  • Paid Annual Leave

 

You are entitled to 7 days of paid annual leave after working for a period of 12 months with the same employer.  The number of annual leave days increases to 8 days after 3 years, and continues to increase by one day with each additional year worked up to a maximum of 14 days (see table below).

 

 

 

Years Of Service

 

Number Of Days Of

Paid Annual Leave

For A Leave Year

1

7

2

7

3

8

4

9

5

10

6

11

7

12

8

13

9 & above

14

 

You may take paid annual leave within the following 12 months at a time agreed upon between you and the employer.

 

If a rest day or a holiday falls during your annual leave, they are counted as part of the annual leave and the employer must give you an alternative rest day or holiday. You may request to take the alternative rest days and/or holidays immediately after the last day of your paid annual leave if you want to maximise your annual leave.

 

The dates of annual leave shall be determined by the employer after consultation with the helper.

 

The employer cannot force you to take a leave without pay when the employer goes on holiday or for the employer’s convenience

 

Paid annual leave must be granted consecutively. However, you may request to take up to 3 days of your entitled  annual leave on any day or days if you are entitled to less than 10 days annual leave. If you are entitled to more than 10 days leave, only 7 days are required to be taken consecutively while the remaining annual leave may be taken on any day or days.

 

If the contract is terminated, you may claim payment in lieu of any annual leave not yet taken. If you have been employed for at least three but less than 12 months, you are entitled to pro-rata annual leave pay except if the contract was terminated due to serious misconduct on your part.

 

If you go on home leave, ask the employer to provide you with a supporting letter stating the period of leave and the date when you are expected to return to work.  There have been cases of FDWs being dismissed while on leave due to misunderstandings on the date when the worker is due to return to work.

 

If you are unable to return to work at the end of the agreed period of annual leave for valid reasons, do not fail to notify your employer by phone or better still, by sending phone text messages or a letter. Speak to your employer directly and do not rely on someone else such as the agency or another domestic worker to pass on the message to your employer. If you cannot return to work due to illness, obtain a medical certificate and send a copy by post or by fax to your employer as soon as possible and bring the medical certificate with you when you return to Hong Kong.

 

 

  • Free Medical Treatment

 

Some employers refuse to pay for their domestic helper’s medical treatment if the treatment is not covered by their medical insurance or if the insurance does not cover the full cost. When a domestic helper becomes ill in Hong Kong, the employer has the legal responsibility to pay for the helper’s treatment whether the employer recovers the cost from her insurance provider or not as set out in clause 9(a) of the standard employment contract.

 

If you are ill and the employer refuses to let you see a doctor, you should seek medical treatment anyway and keep the receipts for the medical fees and the doctor’s certificate. Show them to your employer and if the employer refuses to reimburse you, you may later file a claim for the reimbursement through the Labour Department.

 

Employers are not responsible for providing free medical care during the period when you leave Hong Kong for personal purposes, such as on home leave.

 

Employers are required to take out employees’ compensation insurance to cover injuries sustained by an employee while performing her duties, or diseases contracted by the worker as a result of and in the course of employment.

 

 

  • Sick Leave and Sickness Allowance

 

You are entitled to two paid sickness days for each month during the first 12 months of continuous employment. After 12 months, you are entitled to four paid sickness days for each month of service.  Paid sickness days can be accumulated up to a maximum of 120 days.

 

In order to claim sickness allowance you must present a sick leave certificate to the employer.

 

You are not entitled to sickness allowance if you take less than 4 sickness days.

 

You cannot be forced by the employer to work during any sickness day which is supported by a sick leave certificate.

 

It is unlawful for an employer to dismiss a worker who is on paid sick leave except in cases of summary dismissal due to the worker’s serious misconduct.

 

Ø Dos and Don’ts

 

If you are required by the employer to work while you are on sick leave, politely but firmly refuse and explain to the employer that you are entitled under the law to abstain from working while you are on sick leave.

 

You should always retain a copy of the sick leave certificate before you give one to the employer. It is sometimes difficult to obtain another copy if you need one later in case of dispute.

 

 

  • Maternity Leave and Allowance

 

A female domestic worker, like any other female employee, whatever the nature of her work, is entitled to 10 weeks maternity leave after having completed 4 weeks of continuous employment. She will be entitled to maternity leave pay if she has been employed continuously for not less than 40 weeks.

 

Maternity leave pay is equal to four-fifths of the normal wages.  It should be paid on the normal pay day of the helper.

 

It is unlawful for the employer to dismiss a pregnant domestic helper after she has served a notice of her pregnancy except in cases of summary dismissal due to the helper’s serious misconduct.

 

If you were dismissed while you are on maternity leave you would be entitled to claim the following:

a)                  Wages in lieu of notice (if you were not given prior one month’s notice)

b)     A further one month’s wages

c)maternity leave pay  for 10 weeks (if you have been employed for at least 40 weeks)

d)    compensation for unlawful dismissal (the amount to be determined by the court).

 

Dos and Don’ts

 

ü  Obtain a medical certificate confirming your pregnancy preferably before notifying your employer. This is because the employer might dismiss you before you could present the pregnancy certificate, in which case the employer could argue that the dismissal was not unlawful. It is therefore unwise to confide in the employer before you have the certificate. However, if you have told the employer of your pregnancy without first taking the precaution of equipping yourself with a certificate and the employer terminates you, you must immediately obtain a medical certificate specifying the date when you are due to give birth and present this to the employer. The employer must then withdraw the termination as if it had never taken place.

 

ü  If possible, it is also advisable to have an independent witness present when presenting the pregnancy certificate to the employer. If there is no witness, you could send a copy of the certificate to the Immigration and Labour Department with a cover letter stating that you have notified your employer of your pregnancy.

 

ü  There have been numerous cases where the employer asks or forces the helper to sign a resignation letter when the employer learns of the helper’s pregnancy. You should not agree to this unless you actually want to resign. Otherwise you may not be able to claim compensation if you are not able to prove that you have been pressured into signing the letter.

 

If you have been unlawfully dismissed due to your pregnancy, in addition to compensation under the Employment Ordinance, you may also lodge a complaint with the Equal Opportunity Commission for sexual discrimination.

 

  • Compensation for Work Injury/ Occupational Disease

 

If you suffer an injury or contract a disease while performing your duties for the employer, you are entitled to compensation in accordance with the Employees’ Compensation Ordinance (Chapter 282, Laws of Hong Kong)

 

If you are injured at work you should see a doctor and get a medical certificate. If necessary, you should also get a sick leave certificate and give a copy to your employer. You must also notify the Employee’s Compensation Division of the Hong Kong Labour Department of your condition.

 

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