Live-in Rule for Domestic Helpers in Hong Kong
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In Hong Kong foreign domestic helpers are required to live in with their employer under the employment law. However, due to the small living spaces of Hong Kong families, sometimes an employer prefers it if their foreign domestic worker lives outside of their home. Some domestic workers also prefer this employment arrangement because it gives them more privacy and fixed working hours. But what are the consequences of doing this?
The live-in rule
Until 2003, it was legal for a foreign domestic worker to rent her own room and live out as long as this was indicated in the employment contract. In 2003, the HK government changed the law in order to prevent domestic workers from taking part-time jobs, which in turn created competition with other local Hong Kong workers. Since the change, the standard employment contract for foreign domestic helpers has prohibited the employer and worker to enter into live-out arrangements regardless of the job duties. Only those who have been continuously employed by the same employer since the period before the 2003 law, are allowed to live out provided that the employer and helper declare this with the Immigration Department every single time when they renew the visa. The law, however, has not stopped the practice and quite a few helpers are in other living situations.
Push for change of the Labour law
Over the past years, various domestic helper organizations and public interest groups have advocated for a change in the live-in labour law for domestic workers. The advantages of abolishing the live-in rule are that abuse of helpers will less likely occur, and helpers will enjoy more privacy. It is true that when a person is in one's house 24/7, it is more likely that employers will treat them as servants, rather than a normal employee. Also, this would help regulate working hours and eliminate “on-call” situations that a lot of helpers who need to take care of babies face. It can also more easily ensure that the 24-hour rest day is being upheld. In fact, the Indonesian President Joko Widodo threatened to stop sending live-in Indonesian domestic workers by 2017 to protect their wellbeing.
However, to safeguard the benefits of local domestic workers, the Labour Department and other government entities deny these allegations and a Goverment spokesman commented in March 2016 that there is no "serious shortage in the live-out domestic helper market locally" and that therefore it is unlikely that the live-in rule will be changed in the foreseeable future.
Consequences of breaking the live-in rule
Many employers and domestic workers think lightly about this law and think that the chances of getting caught are low. But in fact quite a number of employers, both locals and foreigners, and helpers end up in trouble with the Immigration Department due to the living situation. Even if you pay your helper extra money for travel, food and rent for a house, it is more than just a simple lie.
The government finds it unacceptable that a family hires a live-out domestic helper, even if the helper's duties such as child care are only a day job. When you are taken to court, the maximum fine is HK$150,000 and not just months, but up to 14 years of imprisonment. Unless pleaded guilty, the entire court proceedings take not just days or a month, but they often last for over a year. Depending on the severity of the case, if it is a first time offense, the person in question may receive a suspended sentence, but do not count on this.
More likely, the helper will be imprisoned, deported to her home country, blacklisted and banned from ever being able to apply for a work visa in Hong Kong again. Employers will face imprisonment, hefty fines, and will be banned from hiring another helper and if you are an expat and not a local it can have an impact on your future visa applications as you will have a criminal record.
What to do?
Even though your helper may live out because you want to give her fair working conditions or because you want to spend some time alone with your children, or because your flat is too small, do not enter into this kind of arrangement. If your helper is currently living out, explain the situation to her and ask her to live in.
Also, if you have moved since the employment contract was signed, remember to inform the Immigration Department of your change of address. You will need to submit ID407G form (Revised Schedule of Accommodation and Domestic Duties).
Finally, it is important that all parties have the correct information and know the consequences of signing contracts that are intentionally not followed, even if you are advised to do so by your employment agency. Your domestic helper's visa can be revoked, and it can make your life very complicated when caught.