20190115 - Briefing on the Employment Ordinance …...Under the Standard Employment Contract, you...

Briefing on the

Employment Ordinance and

Other Points-to-note for

Foreign Domestic Helpers

Working in Hong Kong

Labour Department

1

1/2019

Outlines of Briefing

Standard Employment Contract

Employment Agency

Payment of Wages

Holidays and Leaves

Sickness Allowance, Maternity Protection and Paternity Leave

Termination of Employment Contract

Labour Disputes and Work Injuries

Important Advice

Further Information

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Rights and Benefits of

Foreign Domestic Helpers

The Hong Kong Special Administrative

Region (HKSAR) Government is firmly

committed to protecting the rights and

benefits of all foreign domestic helpers

working in Hong Kong.

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

Specifies the terms and conditions of employment of foreign domestic helpers in Hong Kong.

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Under the Standard Employment Contract, you areentitled to

Minimum Allowable Wage (Employers must pay their foreign domestic helpers no less than the prevailing Minimum Allowable Wage at the time of signing the contract.)

Free food, or food allowance in lieu

Free accommodation with reasonable privacy at the employer’s residence (Examples of unsuitable accommodation: sleeping on made-do beds in the corridor with little privacy, sharing a room with an adult/teenager of the opposite sex, etc.)

6


Under the Standard Employment Contract, you areentitled to

Free medical treatment for illness or personal injury suffered during the period of employment, including medical consultation, maintenance in hospital and emergency dental treatment.

Free passage to return to your place of origin on completion/termination of your contract, with daily food and travelling allowance provided.

Reimbursement of expenses for obtaining all necessary documents such as medical examination fees, authentication fees by the relevant Consulate, visa fees, insurance fees, administrations fees or fees such as the Philippines Overseas Employment Administration fee, or other fees of similar nature imposed by the relevant government authorities.

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A clause on cleaning outward-facing windows

The window being cleaned is fitted with a grille which is locked or secured in a manner that prevents the grille from being opened; AND

No part of the helper’s body extends beyond the window ledge except the arms.

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Points to note for Standard Employment Contract

Make sure that you understand the contents of the Standard Employment Contract before signing.

Keep the original copy of your signed Standard Employment Contract.

Must NOT provide any false information (including your wages and employment address) in your Standard Employment Contract or else you may be liable for criminal offence for doing so.

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Employment Agency

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You should not pay the employment agency,

other than the prescribed commission, any

expenses or fees such as registration fees,

reservations fees and photocopying fees, etc.

You should not pay the employment agency

through a third party or by borrowing money

from any financial services companies, even

requested or suggested by the employment

agency.

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The Employment Ordinance should remain the sole authority for the provisions explained.

Employment Agency

Employment Agency

The maximum commission an employment

agency may receive from each job seeker is an

amount not exceeding 10% of his/her first

month’s wages received after he/she has been

successfully placed by the employment agency.

Contravention of the relevant law is an offence

and shall be liable on conviction to a maximum

penalty of a fine of HK$350,000 and to

imprisonment for three years.

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Code of Practice for Employment

Agencies (CoP)

The CoP was promulgated to enhance protection of job-

seekers. All employment agencies must:

Draw up service agreement with job-seekers

Provide payment receipts to job-seekers

Return the original signed Standard Employment

Contract to job-seekers

Provide job-seekers with a sample Standard Employment

Contract in their mother language

Brief job-seekers of their rights and obligations as well as

provide them with reference materials

Avoid involvement in financial affairs of job-seekers

Not withhold job-seekers’ passports or personal

identification documents

13

Access to information on

engaging employment agencies

(EAs) in Tagalog, Indonesian and

Thai etc.

Check if an EA has a valid

licence in Hong Kong.

Shortlist EAs by different search

criteria such as district and

placement type.

Obtain useful reference materials

and publications, including the

Code of Practice for EAs, press

releases related to conviction of

EAs, revocation or refusal of

renewal of EA licences, etc.14

Employment Agencies Portal

www.eaa.labour.gov.hk

You may file complaint against

EAs on unlicensed operation,

overcharging commission or

non-compliance of the Code of

Practice for EAs via the Online

Complaint Form at the EA

Portal

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Employment Agencies Portal –

Online Complaint Form

Online Complaint Form

Payment of Wages

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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, and should

be 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 three years.

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Suspected Wage Underpayment

If wages paid is less than that stipulated in

the employment contract:

Check with the employer;

Do not acknowledge receipt of wages which has not been paid; and

In case of underpayment - report to LabourRelations Division of the Labour Department.

20


Deduction of Wages

Lawful deductions:

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 in any one case;

Total deductions should not exceed one-

fourth of the wages in the wage period.

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Deduction of Wages

Other lawful deductions:

Absence from work not exceeding a sum proportionate to the period of absence;

Recovery of advance or over-payment of 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 request;

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, made in

any one wage period must not exceed 50% of

the wages payable for that period.

An employer who makes illegal deduction from

wages of an employee is liable to prosecution

and, upon conviction, to a fine of HK$100,000

and to imprisonment for one year.

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Holidays and Leaves

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Rest Days

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.

Rest days can be granted on regular or irregular basis.

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Rest Days

Employer must not compel a helper to

work on rest days, or he/she would be in

breach of the law.

Helper may work voluntarily on his/her

rest days.

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Substituted Rest Days

With the consent of the helper, rest day can

be substituted on another day.

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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All helpers, irrespective of their length of services, are entitled to the following 12 statutory holidays in a year:

1. 1 January

2. Lunar New Year (LNY)’s Day

3. The second day of LNY

4. The third day of LNY

5. Ching Ming Festival

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Statutory Holidays

6. Labour Day (1 May)

7. Tuen Ng Festival

8. HKSAR Establishment Day (1 July)

9. The day following the Chinese Mid- Autumn

Festival

10. National Day (1 October)

11. Chung Yeung Festival

12. Chinese Winter Solstice Festival or Christmas

Day

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Statutory Holidays

Statutory Holidays

Employer should grant the helper statutory

holidays regardless of how long he/she has

worked for the employer.

If the helper has been employed continuously

by the employer for 3 months or more prior to

the statutory holiday, he/she is entitled to

holiday pay.

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Alternative Statutory 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, and with not less than 48

hours prior notice.

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

A helper is entitled to paid annual leave

after serving every period of 12 months

with the same employer.

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Annual Leave

Years of service 1-2 3 4 5 6 7 89 or

above

No. of days of paid

annual leave7 8 9 10 11 12 13 14

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Sickness Allowance,

Maternity Protection and

Paternity Leave

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Employer must provide the helper with free

medical treatment, including medical

consultation, maintenance in hospital and

emergency dental treatment, except for the

period which the helper leaves Hong Kong

of his/her own volition and for his/her

personal purposes.

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Sickness Allowance

A helper is entitled to sickness allowance if :

he/she 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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Sickness Allowance

Sickness Allowance

The way 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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Sickness Allowance

The daily rate of sickness allowance 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.

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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;

she has given notice of pregnancy confirmed by a medical certificate to her employer; and

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

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Maternity Protection

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.

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Paternity Leave

An eligible male employee is entitled to 5

days’ paternity leave for each confinement

of his spouse / partner if he fulfills other

requirements as stipulated in the law.

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Termination of Employment

Contract

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Either 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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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, foodand traveling allowance etc.

44


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.

45


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

A helper is entitled to long service payment if

he/she has worked continuously for not less

than five years, and he/she:

is dismissed or the fixed term contract is not being

renewed by reason other than serious misconduct

or redundancy;

dies while in employment;

resigns on ground of ill health and able to produce

appropriate medical certificate;

resigns on ground of old age when he/she is 65.

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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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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 labourlegislation;

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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Statutory Restrictions on Termination of

Employment Contract

Statutory Restrictions on Termination of

Employment Contract

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.

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Employment Protection

An employee may claim for remedies of

Employment Protection against his / her

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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Employment Protection

Remedies for Employment Protection include:

Reinstatement

Re-engagement

Terminal payments

Compensation (only applicable for the case ofunreasonable and unlawful dismissal)

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Labour Disputes and

Work Injuries

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Labour Dispute

In case of dispute, you may approach the branch office of Labour Relations Division nearest to the place of your employer’s residence for free consultation and conciliation services.

For existence of claims under Employment Ordinance, if no settlement could be reached through conciliation, the claims will be referred to the Labour Tribunal or Minor Employment Claims Adjudication Board for adjudication.

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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 willfully and without reasonable excuse fails to pay the award within 14 days after the date on which the sum is payable:

the employer is liable to prosecution and, upon conviction, to a fine of HK$350,000 and to imprisonment for three years

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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 or her 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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The Employees’ Compensation Ordinance should remain the sole authority for the provisions explained.

Employees’ Compensation Ordinance

Major compensation items payable under the Ordinance include:

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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The Employees’ Compensation Ordinance should remain the sole authority for the provisions explained.

Practical Guide

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 of employment rights and benefits, please refer to the Practical Guide.

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Important Advice

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You shall ONLY perform domestic duties and

reside in the employer’s residence at the

address stated on Clause 3 of the Standard

Employment Contract.

Abusing the pre-mature contract termination

without justifiable reasons could risk your

future application of working as a helper in

Hong Kong being refused.

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Important Advice

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 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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Important Advice

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

If you are illegally deployed to work in HK or in places outside HK regardless of with your employer or another person, or take up non-domestic duties, please call the Immigration Department hotline 2824 1551.

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Important Advice –

Enquiries and Complaints

For enquiries and complaints regarding labour matters, please seek advice from the Labour Department through:

24-hour telephone enquiry service:

2157 9537

Foreign Domestic Helpers Portal: www.fdh.labour.gov.hk

Branch offices of Labour Relations Division

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http://www.fdh.labour.gov.hk/

Important Advice

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You should keep this card closely to yourself.

Further Information

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Foreign Domestic Helpers Portal

www.fdh.labour.gov.hk

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(Tagalog version is also available.)

The portal provides

information relating to

employment of foreign

domestic helpers (FDHs) in

Hong Kong, including the

policy on importation of

FDHs, as well as the

publication and publicity

materials on the rights and

obligations of FDHs and

their employers under the

labour laws and the

Standard Employment

Contract for hiring FDHs.

You may complete the following online form to file anenquiry/complaint relating to your employment inHong Kong:

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Foreign Domestic Helpers Portal –

Online Enquiry/Complaint Form

Online Enquiry/ Complaint Form

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Other FDH Publications

Thank You

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