Hong Kong is a vibrant economy where almost all available and eligible persons are in the work force. This means that many families will have to delegate their household chores to domestic helpers. The most common form of obtaining the service of a domestic helper is either through engaging a part-time local worker or a full-time foreign domestic helper. The latter is probably the predominant practice adopted by most households in Hong Kong.

Despite the large number of domestic helpers in Hong Kong, in particular foreign domestic helpers earning their living here, there is no statutory law exclusively governing matters related to their employment. The Employment Ordinance ( Chapter 57 of the Laws of Hong Kong) remains the major statue governing all matters in relation to employment. In essence, the Employment Ordinance covers all employees, whether temporary, part-time or full-time. It also covers all foreign domestic helpers working in Hong Kong. Put it simply, all domestic helpers, as with all employees, are entitled to the basic employment rights, for example, statutory holidays, wage protection, protection against anti-union discrimination, etc.

For general employment matters, readers may refer to the topic of “ Employment Disputes ” under the CLIC website. Here we shall focus only on issues specifically applicable to the employment of domestic helpers.

A local domestic helper basically enjoys the same rights that any employee enjoys under the Employment Ordinance. Even if the local domestic helpers work on part-time basis, such rights do not falter. However, there is one factor that an employer frequently overlooks: the possibility that the helper may sustain injury during his/her work.

Let’s imagine the following scenario: a local domestic helper came to an employer’s home to do some cleaning and household chores a few times a week. The helper did the work; the employer made the payment; both parties were happy; that sounds simple and straight-forward. Now what if the helper suffers injuries at the employer’s home and claims the employer for damages? And what if the injury is very serious or even fatal? Wouldn’t it be advisable for the employer to get some insurance against such incident?

As a matter of fact, it is not simply advisable to obtain such insurance; it is mandatory. 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.

Under section 40 of the Employees’ Compensation Ordinance ( Chapter 282 of the Laws of Hong Kong), no employer shall employ any employee in any employment unless there is in force in relation to such employee an insurance policy issued by an insurer for an amount not less than the amount specified in the said Ordinance in respect of the liability of the employer. This also applies to employment of local part-time domestic helpers.

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 up to HK$100,000 and to imprisonment up to 2 years.

There are insurers who provide part-time domestic helper insurance plans on a daily, weekly or monthly basis. Employers are advised to make enquires and to take out the relevant employees’ compensation insurance policies to comply with the law and to protect their part-time domestic helpers against the employers’ liability in the course of employment.

Due to the fact that a foreign domestic helper is “imported”, his/her working status is slightly different from an ordinary employee in Hong Kong. Therefore, apart from the general matters applicable to the usual employment relationship, an employer of a foreign domestic helper has to be aware of the issues as listed in the following sections.

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.

Details of eligibility criteria are stated in Guidebook for the Employment of Domestic Helpers from Abroad in the Immigration Department’s website.

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 .

Every foreign domestic helper is entitled to a monthly salary not less than the minimum allowable wage, which is currently HK$4,410 per month. 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. Under section 63C of the Employment Ordinance (Cap. 57), an employer who pays less than the minimum allowable wage is liable, upon conviction, to a maximum fine of HK$350,000 and three years’ imprisonment. Since the employer would have contracted under the standard Employment Contract to pay at least the minimum allowable wage, failure to comply with the Employment Contract could lead to false representation to an Immigration Officer, which carries a maximum fine of $150,000 and imprisonment for 14 years (section 42 of the Immigration Ordinance, Cap. 115). If the employer and the helper agree to a lower wage, by virtue of common law and the Crimes Ordinance (Cap. 200) both of them may be conspiring to defraud and is liable to imprisonment for 14 years.

Clause 4 of the standard Employment Contract expressly states that 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 and upon conviction, the maximum penalty will be a fine up to HK$50,000 and imprisonment for two years.

Under the Government’s policy, a foreign domestic helper is admitted into Hong Kong for employment with a specific employer to perform domestic duties at such employer’s residence.

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. Similarly one cannot ask your neighbour’s foreign domestic helper to come to work part-time at your place, even though you are willing to pay and the helper is happy to earn some extra money.

In contrast, there is no such restriction on the employment of local part-time domestic helpers. Therefore, an employer may consider employing a local domestic helper to work part-time for him/her.

Clause 4 of the standard Employment Contract provides that a foreign domestic helper “shall only perform domestic duties” for the employer. This Clause 4 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 will 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 and upon conviction, the maximum penalty is a fine up to HK$50,000 and imprisonment for two years.

But what exactly is “domestic duties”? Clause 3 of the standard Employment Contract states that a foreign domestic helper “shall work and reside in the Employer’s residence” . Does it mean that the helper cannot do any work outside the residence, meaning that the helper cannot go to supermarket to buy food, nor go to the garage to wash the car, nor to bring garbage to the collection station? That obviously is stretching the interpretation too far. According to the Schedule of Accommodation and Domestic Duties as attached to the Standard Employment Contract, domestic duties include:

1. household chores;
2. cooking;
3. looking after aged persons in the household;
4. baby-sitting; and
5. child-minding.

While this may not be very helpful, it is probably unrealistic to list all domestic duties in details on the Schedule of Accommodation and Domestic Duties since domestic duties can be sundry in types. Whether a duty required to be performed is considered to be domestic in nature must depend on the facts of each case. In any event, some duties to be performed outside an employer’s residence will be considered incidental to household chores, e.g. car-washing, buying groceries and bringing the employer’s children to school. However, to address the genuine needs of some employers, a special arrangement is made to allow foreign domestic helpers to perform driving duties which are incidental to and arising from domestic duties. Application may be made to the Director of Immigration for such special permission.

An employer should also note that a foreign domestic helper shall only be required to work in the employer’s residence at an address specified in Clause 3 of the Standard Employment Contract. In other words, if an employer owns several flats, he/she can ask the foreign domestic helper to work at only one household at one location.

A. Residence of the foreign domestic helper

Clause 3 of 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.

If employers or helpers breach the undertaking that the helper would work and reside in the employer’s residence, such conduct will be taken into consideration in their future foreign domestic helper visa or extension of stay applications. The applications may thus be refused.

Besides, it is an offence to make false representation to Immigration Officers upon the application of domestic helper visa. Offenders are liable to prosecution and to a maximum fine of $150,000 and imprisonment for 14 years.

B. Food allowance

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$1,053 per month.

A. Compulsory Insurance Policy: Employees’ Compensation Policy

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.

Under section 40 of the Employees’ Compensation Ordinance ( Chapter 282 of the Laws of Hong Kong), no employer shall employ any employee in any employment unless there is in force in relation to such employee an insurance policy issued by an insurer for an amount not less than the amount specified in the said Ordinance in respect of the liability of the employer. This also applies to employment of foreign domestic helpers.

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 up to HK$100,000 and to imprisonment up to 2 years.

B. Medical and travel insurance

In addition to employees’ compensation insurance policy which is compulsorily required, employers should consider taking out other kinds of insurance policy which may be relevant to the employment of domestic helpers, such as medical insurance and travel insurance policies.

1. Medical 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 Clause 9 of 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 medial 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.

2. Travel insurance

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.

Moreover, both the employer and the foreign domestic helper should observe the relevant visa requirements as well as the laws and regulations of the destination country or territory.

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.

A. Termination of the employment by notice or payment in lieu

Under Clause 2 of the standard Employment Contract, the term of employment of a foreign domestic helper shall be a period of two years commencing either on:-

1. the date on which the helper arrives at Hong Kong;
2. a specified date which is the date following the expiry of the previous employment contract with the same employer; or
3. the date on which the Director of Immigration grants the helper permission to remain in Hong Kong to begin employment under the employment contract.

Nevertheless, according to clause 10 of the standard Employment Contract, either the employer or the foreign domestic helper may terminate the employment relationship prior to its expiry by giving not less than one month’s notice in writing or by paying one month’s wages to the other party in lieu of notice.

B. Termination of the employment without notice or payment in lieu

Under exceptional circumstances, either the employer or the foreign domestic helper may terminate the employment contract without notice or payment in lieu of notice.

An employer may summarily dismiss a foreign domestic helper without notice or payment in lieu of notice if the helper, in relation to his/her employment:-

1. wilfully disobeys a lawful and reasonable order;
2. misconducts himself/herself;
3. is guilty of fraud or dishonesty; or
4. is habitually neglectful in his/her duties.

However, employers should note that summary dismissal is a serious disciplinary action. It only applies to cases where a foreign domestic helper has committed very serious misconduct or fails to improve after the employer’s repeated warnings.

On the other hand, a foreign domestic helper may terminate his/her employment contract without notice or payment of wages in lieu of notice if:

1. he/she reasonably fears physical danger by violence or disease;
2. he/she is subjected to ill-treatment by the employer; or
3. he/she has been employed for not less than 5 years and he/she is certified by a registered medical practitioner as being permanently unfit for the type of work he/she is engaged.

C. Notice to the Director of Immigration

If the employment relationship between an employer and a foreign domestic helper is terminated prior to the expiry of the contracted period (whether it is by notice, by payment in lieu or by immediate termination), both the employer and the foreign domestic helper shall notify the Director of Immigration by way of a Notification of Termination of Employment Contract with Foreign Domestic Helper within seven days of the date of termination.

A foreign domestic helper is permitted to remain in Hong Kong for not more than two weeks after premature termination of the employment contract. If the foreign domestic helper does not leave upon the expiry of stay, he/she will commit an offence for breaching his/her condition of stay. An employer should not do anything to facilitate the foreign domestic helper’s overstaying in Hong Kong, for example by agreeing not to inform the Director of Immigration of the premature termination of the employment contract. Such an act could make the employer liable for aiding and abetting the foreign domestic helper to breach a condition of stay by overstaying. Upon conviction, this may lead to a fine of HK$50,000 and imprisonment for 2 years.

D. 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:

1. all outstanding wages;
2. wages in lieu of notice (if applicable);
3. payment in lieu of any untaken annual leave, and any pro rata annual leave pay for the current leave year;
4. payment in lieu of any untaken statutory holidays; and
5. 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 of HK$100 per day 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.

E. 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.

F. “Blacklist” kept at the Immigration Department?

There is always sayings that the Immigration Department has kept a “black list” of employers who has adverse record in respect of employment of foreign domestic helpers, for example one who has sacked many helpers within a short period of time, one who has been in breach of the standard Employment Contract, one who has been convicted of offence under the Employment Ordinance, etc.  The Immigration Department certainly retains a record of all employments of domestic helpers; and it certainly can easily access the record of any individual employer in this respect. But it would be going too far to say that there is a “black list”, by which certain employers would automatically be barred from employing a foreign domestic helper. The Director of Immigration, who has a wide discretion to assess the eligibility of each application for employment of a foreign domestic helper, will evaluate each application on a case by case basis.