Basic requirements for employing a foreign domestic helper
An employer has to show that he/she is financially capable of employing a foreign domestic helper. The minimum requirement is that the employer must have a household income of at least HK$15,000 per month so as to entitle him/her to engage a foreign domestic helper.
The Standard Employment Contract for foreign domestic helpers
The Government has published an Employment Contract (For a Domestic Helper recruited from abroad) as an official employment contract for all foreign domestic helpers in Hong Kong. All the basic rights and responsibilities of a foreign domestic helper can be found in this standard Employment Contract, a specimen of which can be found at the Immigration Department’s website.
Minimum allowable wage
Every foreign domestic helper is entitled to a monthly salary not less than the minimum allowable wage, which is currently HK$4,520 per month. (Since September 2018).
Clause 5 of the standard Employment Contract expressly provides that "An employer who fails to pay the wages due under this employment contract shall be liable to criminal prosecution."
Even if a foreign domestic helper agrees to accept a lower wage, an employer cannot pay anything less than the minimum allowable wage.
Other payment, rights and benefits upon termination
In respect of termination of employment contracts, foreign domestic helpers enjoy the same protection as any employees under the Employment Ordinance. For example, he/she is entitled to receive:
- all outstanding wages;
- wages in lieu of notice (if applicable);
- payment in lieu of any untaken annual leave, and any pro rata annual leave pay for the current leave year;
- payment in lieu of any untaken statutory holidays; and
- where appropriate, long service payment or severance payment.
However, since the foreign domestic helper is “imported” into Hong Kong, an employer shall be responsible for sending him/her back to his/her country of origin upon the termination or expiry of an employment contract by providing him/her with free return passage to his/her place of origin.
Moreover, a daily food and travelling allowance shall be paid to the foreign domestic helper from the date of his/her departure from Hong Kong until the date of his/her arrival to his/her place of origin. As for the number of days for calculating the food and travelling allowance payable to the foreign domestic helper, it should be based on the time of journey by the most direct route. Generally speaking, for a foreign domestic helper whose place of origin is a country in Asia, allowance for one or two days would be reasonable and adequate.
There is no fixed rule as to whether an open-date air ticket or a fixed-date ticket shall be provided to the foreign domestic helper for his/her return flight. It is subject to the parties’ negotiation and agreement. It is not uncommon that some employers and their foreign domestic helpers may agree that money could be paid in lieu of the air ticket. The law does not prohibit such practice. But the employer should ensure that the details of the agreement are put into writing so that there is little room for dispute in the future.
Renewal of employment contract
If both the employer and the foreign domestic helper agree to renew an existing contract, the helper shall nevertheless return to his/her place of origin for a vacation of at least 7 days at the expense of the employer before the new contract commences. It means that the employer will have to provide a return air ticket to the helper in such scenario.
Other employment engaged by foreign domestic helpers
A foreign domestic helper "shall not take up, and shall not be required by the Employer to take up, any other employment with any other person".
This also forms part of the conditions of stay to be imposed on the foreign domestic helper by the Immigration Department upon the foreign domestic helper’s admission to work in Hong Kong. Any breach of this condition of stay would render the foreign domestic helper liable to criminal prosecution and removal from Hong Kong. The employer, who aids and abets the foreign domestic helper to breach a condition of stay, is also liable to prosecution.
In other words, an employer cannot ask his/her foreign domestic helper to go to his/her parents’ place to help, even though they may be living next door.
Living and meal arrangements
The standard Employment Contract provides that the foreign domestic helper shall reside in the employer’s residence. In other words, an employer cannot ask the helper to reside at another place even if the employer is prepared to pay for that.
Since the foreign domestic helper will be living together with the employer, it is the employer’s duty to provide food free of charge to the helper. If no food is provided, the employer shall provide a food allowance to the helper. The current minimum food allowance is HK$1,075 per month.
In Hong Kong, it is compulsory for an employer to be in possession of a valid insurance policy to cover his/her liabilities in respect of work injuries sustained by his/her employees.
An employer who fails to take out an employees’ compensation insurance for his/her employee(s) commits a criminal offence and shall be liable to a fine and to imprisonment.
Medical and travel insurance
An employer of a foreign domestic helper has the obligation to pay for the medical fees and expenses incurred by the helper. According to the standard Employment Contract, "In the event the Helper is ill or suffers personal injury during the period of employment...except for the period during which the Helper leaves Hong Kong of his/her own volition and for his/her own personal purposes, the Employer shall provide free medical treatment to the Helper. Free medical treatment includes medical consultation, maintenance in hospital and emergency dental treatment."
In such circumstances, although it is not compulsory to take out a medical insurance policy for a foreign domestic helper, an employer should seriously consider doing so, where both parties will enjoy a better protection in case of medical incidents suffered by the helper.
It is not uncommon for employers in Hong Kong to bring along their foreign domestic helpers to take care of their children or elderly family members while they travel to the mainland or overseas with their families.
There is no prohibition against foreign domestic helpers following their employers to such trips and working for their employers outside Hong Kong. The conditions of stay in respect of a foreign domestic helper apply only whilst he/she is in Hong Kong. As such, a foreign domestic helper may follow his/her employer to go abroad on a mutual consent basis.
However, if a foreign domestic helper does follow his/her employer to go abroad, the employer should pay particular attention to the insurance arrangements. If the foreigner domestic helper gets injured during the course of employment in the destination country or territory, he/she may claim compensation in accordance with the employees’ compensation law of that country or territory. In other words, the employee may choose to claim under the laws of that foreign country or that of Hong Kong. Hence, an employer should check whether the employees’ compensation insurance policy taken out covers liabilities and compensation for injuries sustained when working abroad; and if it does not cover the same, the employer should consider taking out relevant insurance policies, such as travel insurance policy, for the domestic helper.
Injury sustained by the foreign domestic helper
If an accident happens to a domestic helper during his/her course of employment and he/she sustains serious injury, the employer should notify the insurer as soon as possible and in any event, within the stipulated time as required under the insurance policy.
If the domestic helper suffers injury during his/her course of employment, he/she may be entitled to claim against the employer. The parties may of course settle the claim on their own; or the insurance may be able to cover the claim. But if no settlement can be reached or if the claim is not covered by insurance, the employee may choose to take legal action against the employer. If the employer receives any demand letter or a writ of summons issued by the court, he/she should notify the insurer as soon as possible and should seek legal advice.
Discrimination against a foreign domestic helper
Any act of discrimination in the course of employment will still be subject to the laws on race discrimination. For example:
- if your foreign domestic helper is a female muslim, you cannot forbid her from wearing her hijab; and
- if you make offensive racial jokes against your helper or if you use a disparaging or offensive tone when communicating with your helper on the ground of his/her race, that could constitute racial harassment.