In Hong Kong the employment of foreign domestic helpers is considered different from that of other migrant workers and because of this there are different labour regulations. Employers who hire migrant domestic workers are reminded to follow the legal regulations and Immigration law for foreign domestic helpers so that they do not face any issues or problems.
The employment contract requires a foreign domestic helper to live at the employer’s address where she also works. The employer must ensure that free “suitable accommodation and reasonable privacy” is provided as the living arrangement, but it is not clearly specified what the government exactly means with “reasonable”, in particular when it comes to the size of the room, as well as its location in the flat.
That said, according to the standard employment contract, domestic helpers should not sleep in the same room as anyone of the opposite sex unless they are children (note: they cannot be teenagers). At HelperChoice, we also advise employers to provide a room which only purpose is to be a room, meaning that the room does not contain a washing machine for example. It is also best to have an air conditioner in that room so that it does not get too hot in the summer.
Hong Kong does not have any legal working hour legislation and domestic workers on average work long days of 11 to 16 hours. This is not only due to the job nature as taking care of children starts early in the morning and ends late at night in Asia, but also because the foreign domestic helpers live at their employer’s house and are therefore often ‘on-call’. We do not advise employers to make their domestic workers work more than 12 hours! It will exhaust them too much. It is important that they get a good rest at night.
Minimum Allowable Wage & food allowance
Foreign domestic workers in Hong Kong are excluded from the local minimum wage law, but they are covered by the Minimum Allowable Wage (MAW) for foreign domestic workers. The Labour Department argues that this separate law facilitates the employment of domestic workers as accommodation and food allowance also have to be provided for.
Foreign domestic workers are entitled to one weekly rest period of at least 24 hours continuously by the Immigration employment contract. However, some workers find this an issue because their employers require them to do small tasks on their days off, such as preparing breakfast before going out, and doing the dishes after coming back. Employers might also find it problematic that workers return home late at night, therefore imposing curfews on their workers. However, we advise employers to not impose a curfew, unless it is evident that this affects the working performance of the worker.
Employers are not allowed to pay their helper extra money to work on her legal day off, even if the helper agrees with or suggests this. If on a special occasion, you need your helper to work on her day off, you will have to provide her with a replacement day off within 30 days.
Statutory holidays or general holidays?
Statutory holidays are different from general holidays. There are 12 statutory holidays and 17 general holidays. According to the law, employers only need to give statutory holidays to domestic workers, but if you are willing, we encourage you to give general holidays to your domestic worker. This is commonly referred to as the ‘red calendar’ by foreign domestic workers.
Your worker is entitled to paid statutory holidays if she has worked for at least three months for you. In the first three months of her employment, you still have to give her statutory holidays, but you don’t need to pay her. You can, of course, choose to pay her these days no matter what.
A domestic worker is entitled to a paid annual leave, which is at least 7 days every year under a continuous contract. As the worker continues to work for the same employer, the number of days the worker is entitled to will increase, up to a maximum of 14 days. This list will illustrate this:
- 1 year of service – 7 days of annual leave
- 2 years of service – 7 days of annual leave
- 3 years of service – 8 days of annual leave
- 4 years of service – 9 days of annual leave
- 5 years of service – 10 days of annual leave
- 6 years of service – 11 days of annual leave
- 7 years of service – 12 days of annual leave
- 8 years of service – 13 days of annual leave
- 9 years or above of service – 14 days of annual leave
The annual leave must be given in unbroken period, but there are exceptions. For more details, refer to here. Also, workers cannot accept payment in lieu of annual leave, unless the length of the leave is more than 10 days. If the worker is terminated before she is entitled to take the annual leave but has already worked for 3 months under the contract, the domestic worker is still entitled to the paid annual leave. The only exception, however, is that if the employee is dismissed by summary dismissal, that means a dismissal without notice due to serious misconduct.
Many people are divided over the so-called two-week rule for domestic workers. This rule states that after termination of contract and the notice period, foreign domestic workers need to leave Hong Kong within two weeks. It is often an issue for domestic workers to find a new employer in the 14-day period and many are forced to return to their home country. Extensions of stay are rarely granted, unless the domestic worker is having a court case. Because of that, a lot of workers are not willing to break the contract with abusive employers, fearing that they will have to return home, and pay for training and placement again to come to Hong Kong. This thus gives rise to more abuses. However, if domestic workers need those two weeks to find a new employer, they can stay in boarding houses provided by various domestic worker NGOs.