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Briefing on the Employment Ordinance

Version date: Feb 2018

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Contents of briefing

Safety and Rights of Foreign Domestic Helpers

Standard Employment Contract for Foreign Domestic Helpers

Payment, underpayment and deduction of wages

Termination of employment contract Rest days, statutory holidays and annual

leave Sickness allowance Maternity protection, Paternity Leave,

Severance payment or long service payment

Safety and Rights of FDH

The Hong Kong Special Administrative Region Government is firmly committed to protecting the rights and benefits of all foreign domestic helpers working in Hong Kong.

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Important advice

If you receive any physical abuse or your personal safety is at risk, immediately call the police emergency hotline 999.

If you are not paid your wages or any of your employment right is infringed, call the Labour Department 24-hour hotline 2717 1771.

If you are illegally deployed to work for another person or take up non-domestic duties, call the Immigration Department hotline 2824 1551

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Important advice

Always keep your passport and HK ID Card yourself. No other person should keep your passport for you.

Do NOT sign any documents if you do not understand or agree.

You shall work and reside in the employer’s residence at the address stated on Clause 3 of the Standard Employment Contract.

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Important advice

You should get into the habit of keeping employment records, it will help safeguard your employment rights. Examples of these records include wage records, holiday and sick leave records as well as records on termination of employment.

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Employment Ordinance

applies to all employees ANDforeign domestic helpers alike in Hong Kong

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Standard Employment Contract for Foreign Domestic Helpers

the only piece of document recognized by the Government of the HKSAR for employing foreign domestic helpers.

specifies the terms and conditions of employment of a foreign domestic helper in Hong Kong.

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Payment of wages

Minimum Allowable Wages Employers must pay their helper a salary

no less than the prevailing Minimum Allowable Wage at the time of signing the contract.

All foreign domestic helpers in Hong Kong should be paid not less than the Minimum Allowable Wage of HK$4,410 per month if their employment contracts are made on or after 30 September 2017.

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Form of payment

Wages can be paid in the form of: Cheque Auto-payment Cash

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Timing of payment

Wages shall become due on the expiry of the last day of the wage period.

paid not later than 7 days after the end of the wage period.

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Liability of late payment

If the employer fails to pay the helper wages within 7 days from the due date of payment, he/she is: required to pay interest on outstanding

wages liable to prosecution and, upon

conviction, to a fine of HK$350,000 and to imprisonment for 3 years.

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Suspected underpayment

If wages paid is less than that stipulated in the employment contract: check with the employer not acknowledge receipt of wages

which has not been paid; and in case of underpayment – report to

Labour Relations Division of the Labour Department

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Enquiries and complaints

24-hour telephone enquiry service: 2717 1771

Labour Department Homepage: http://www.labour.gov.hk

Branch offices of Labour Relations Division of the Labour Department

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Deduction from wages

Lawful deductions (I)Due to damage to or loss of employer’s goods or property because of the helper’s negligence or default:

Subject to a limit of HK$300 Total deduction should not exceed one-

fourth of the wages in the wage period

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Lawful deduction (II)

Other lawful deductions: Absence from work not exceeding a sum

proportionate to the period of absence Recovery of advanced or over-paid

wages (total sum should not exceed one-fourth of the wages in the wage period)

Recovery of loan made to the helper with the helper’s written consent

Deductions authorized under any enactment to be made from the wages of the helper

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Deduction of wages

Total deductions, excluding absence from work, made in any one wage period must not exceed 50% of the wages payable in that period.

An employer who makes illegal deduction from wages of an employee is liable to prosecution and, upon conviction, to a fine of $100,000 and to imprisonment for one year.

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Termination of employment contract

Termination of contractEither party may terminate the contract with:

One month’s notice in writing; or One month’s payment in lieu of notice.

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Payment on termination

Termination payments may include: Outstanding wages; Payment in lieu of notice, if any; Payment in lieu of any untaken annual

leave; Long service payment/Severance

payment, where appropriate; Any other sum, e.g. free return passage,

food and traveling allowance, etc.

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Summary dismissal without notice or payment in lieu

An employer may terminate the contract without notice or payment in lieu if the helper: willfully disobeys a lawful and

reasonable order; misconducts himself/herself; is guilty of fraud or dishonesty; or is habitually neglectful of his/her duties.

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Resignation without notice or payment in lieu

A helper may terminate the contract without notice or payment in lieu to the employer if he/she: reasonably fears physical danger by

violence or disease; is subjected to ill-treatment by employer;

or has been employed for not less than 5

years and is medically certified as being permanently unfit for the type of work engaged.

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Severance payment

A helper is entitled to severance payment if he/she: has not less than 24 months of service

with the same employer prior to the termination; and

is dismissed or the fixed term contract is not being renewed by reason of redundancy.

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Long service payment

Conditions Years of service Other remarks

The employee is dismissed or the fixed term contract expires without being renewed

Not less than 5 years

is not summarily dismissed is not dismissed by reason of redundancy

The employee dies while in employment

The employee resigns on ground of ill health

produces appropriate medical certificate

The employee resigns on ground of old age aged 65 or above

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Amount of severance payment or long service payment

(Monthly wages x 2/3) x reckonable years of services

Service of an incomplete year should be calculated on a pro-rata basis

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Employment Protection

An employee may claim for remedies of Employment Protection against his employer under the following situation:

unreasonable dismissal (employed for not less than 24 months);

unreasonable variation of terms of the employment contract; or

Unreasonable and unlawful dismissal

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Statutory Restrictions on Termination of Employment Contract

An employer shall not dismiss an employee:

who has been confirmed pregnant and has served a notice of pregnancy.

who is on paid sick leave.

by reason of his giving of evidence or information due to the enforcement of relevant labour legislation.

for trade union membership and activities.

before having entered into an agreement with the employee for employee's compensation or before the issue of a certificate of assessment.

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Offences and Penalties

An employer dismissing an employee under the above circumstances is liable to prosecution and, upon conviction, to a fine of $100,000.

Statutory Restrictions on Termination of

Employment Contract

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Employment Protection

Remedies for Employment Protection include reinstatement, re-engagement, terminal payments and compensation (compensation only applicable in the case of unreasonable and unlawful dismissal).

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Various holidays and leave

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Rest day

A helper should have at least one rest day in every period of 7 days.

A rest day is a continuous period of not less than 24 hours.

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Rest day

Rest days can be granted on a regular or irregular basis.

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Rest day

Employer must not compel a helper to work on rest days.

Employer who compels the helper to work on rest day is in breach of the law.

Helpers may work voluntarily on his/her rest days.

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Substituted rest day

With the consent of the helper, rest day can be substituted.

Substituted rest day must be granted within the same month before the original rest day or within 30 days after it.

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12 statutory holidays

The first day of January Lunar New Year’s Day The second day of Lunar New Year The third day of Lunar New Year Ching Ming Festival The first day of May Tuen Ng Festival

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12 statutory holidays

The first day of July The day following the Chinese Mid-

Autumn Festival The first day of October Chung Yeung Festival Christmas Day or Chinese Winter

Solstice Festival (at the option of the employer)

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Statutory holidays and pay

The employer should grant the helper a statutory holiday no matter how long he/she has worked for the employer.

If employed continuously by the employer for 3 months or moreprior to the statutory holiday, he/she is entitled to holiday pay.

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Alternative holidays

If a helper has worked on a statutory holiday, the employer must give him/her alternative holiday.

An alternative holiday should be granted within 60 days before or after the statutory holiday.

Not less than 48 hours prior notice.

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Points-to-note

Payment in lieu of granting a statutory holiday is not permitted.

If a statutory holiday falls on a rest day, a holiday should be granted on the day following the rest day.

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Annual leave

EntitlementA helper is entitled to paid annual leave after serving every period of 12 months with the same employer

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Number of days of annual leave in a year

Years of service

1–2 3 4 5 6 7 8 9 or above

No. of days of

paid annual leave

7 8 9 10 11 12 13 14

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Sickness allowance

Free medical attentionWhen the helper is ill or injured, employer must provide him/her with free medical attention, including:

Medical consultation Maintenance in hospital Emergency dental treatmentexcept for the period during which

the helper leaves Hong Kong of his/her own volition and for his/her personal purposes

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Sickness allowance

To be entitled to sickness allowance: The helper has accumulated sufficient

number of paid sickness days, The sick leave taken is not less than 4

consecutive days, and The sick leave is supported by an

appropriate medical certificate.

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How to accumulate paid sickness days

2 days for each month during the first 12 months of employment

4 days for each month of service thereafter

Maximum number of days to be accumulated : 120

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Rate of sickness allowance

The daily rate of sickness allowance is a sum equivalent to four-fifthsof the average daily wages of the helper.

It should be paid not later than the normal pay day.

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Maternity protection

A female employee is eligible for 10 weeks paid maternity leave if: She has been employed for not less than

40 weeks immediately before the commencement of maternity leave, and

She has given notice of pregnancy confirmed by a medical certificate to her employer.

She has produced a medical certificate specifying the expected date of confinement if so required by the employer.

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Maternity leave pay

The daily rate of maternity leave pay is a sum equivalent to four-fifths of the average daily wages of the helper. It should be paid not later than the normal pay day.

Paternity Leave

An eligible male employee with child born on or after 27 February 2015are entitled to 3 days’ paternity leave for each confinement of his spouse/ partner if he fulfills other requirements as stipulated in the law.

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Employers defaulting payment of an Award

If an award of the Labour Tribunal or Minor Employment Claims Adjudication Board provides for the payment by an employer of any specified entitlements ( such as wages and severance payment, etc) and

The employer wilfully and without reasonable excuse fails to pay the awarded sum within 14 days after it becomes due:

the employer is liable to prosecution and,upon conviction, to a fine ofHK$350,000 and to imprisonment for 3 years

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Information

The above information sets out only the highlights of the major statutory and contractual provisions with which foreign domestic helpers are commonly concerned.

For details, please refer to the “Practical Guide for Employment of Foreign Domestic Helpers” or “Foreign Domestic Helpers – Rights and Protection under the Employment Ordinance”.

Maximum commission for employment agency

The maximum commission an employment agency may receive from each job seeker is an amount not exceeding 10% of his first month’s wages received after he has been successfully placed by the employment agency.

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Employees’ Compensation Ordinance

If an employee sustains an injury or dies as a result of an accident arising out of and in the course of his employment, his employer is in general liable to pay compensation under this Ordinance even if the employee might have committed acts of faults or negligence when the accident occurred

An injured employee should give the employer notice of the accident as soon as possible. Failure to give prompt notice may jeopardize and delay the claim of employees’ compensation

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Employees’ Compensation Ordinance

Major compensation items payable under the ECOinclude:

Periodical payment Compensation for permanent incapacity (if

applicable) Medical expenses

No employer shall employ any employee in any employment unless there is in force a policy of insurance to cover their liabilities both under the Ordinance and at common law for injuries at work in respect of all their employees, irrespective of the length of employment contract or working hours, full-time or part-time employment

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Website on Foreign Domestic Helpers

www.fdh.labour.gov.hk

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(Tagalog version is also available.)

The website providesinformation relating toemployment of foreigndomestic helpers (FDHs) inHong Kong, including thepolicy on importation ofFDHs, as well as thepublication and publicitymaterials on the rights andobligations of FDHs andtheir employers under thelabour laws and theStandard EmploymentContract for hiring FDHs.

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Thank you