Foreign Domestic Helpers (FDHs)’ statutory labour rights and benefits

1. FDHs enjoy equal and full protection and entitlements under the Employment Ordinance (EO) and the Employees’ Compensation Ordinance (ECO) like local employees. Furthermore, all anti-discrimination ordinances such as the SDO and the RDO also apply to migrant workers, including FDHs, protecting them against discrimination on the grounds of sex and race, among other things. Migrant workers are also eligible to apply for legal aid as local workers if the eligibility criteria are met.
2. Additional rights and benefits not usually available to local workers are provided to FDHs through the Government-prescribed Standard Employment Contract (SEC), which sets out the employment terms such as the Minimum Allowable Wage (MAW) (HK$4,410 per month as at March 2018), free food or food allowance (HK$1,053 per month as at March 2018), free accommodation, free medical care and free return passage to/from their home countries, etc.
3. Apart from civil liabilities, the EO and the ECO also impose criminal liabilities on an employer who, upon conviction on violation of the law, would be liable to fines and/or imprisonment. For instance, any employer who wilfully and without reasonable excuse underpays an employee, including an FDH, is liable to prosecution and, upon conviction, to a maximum fine of HK$350,000 and to imprisonment for three years. An employer is prohibited from dismissing a pregnant FDH from the date on which she is confirmed pregnant by a medical certificate to the date on which she is due to return to work upon the expiry of her maternity leave, unless she is summarily dismissed due to serious misconduct. The offender is liable to prosecution and, upon conviction, to a maximum fine of HK$100,000. Any employer who without reasonable excuse fails to grant a rest day, a statutory holiday or annual leave to an FDH, or compels an FDH to work on a rest day, fails to grant maternity leave to a pregnant FDH or fails to pay maternity leave pay to an eligible FDH is liable to prosecution and, upon conviction, to a maximum fine of HK$50,000.
4. Some commentators were concerned whether the exemption of live-in domestic workers, including live-in FDHs, from statutory minimum wage (SMW) under the Minimum Wage Ordinance (MWO) would constitute discrimination. Live-in domestic workers are exempted from the MWO, irrespective of their sex, race and place of origin². Migrant workers who are not employed as live-in domestic workers, as in the case of their local counterparts, are covered by the MWO, and there is no question of discrimination.
5. As regards working time, there is no statutory provision relating to working hours in Hong Kong. Same as local workers, FDHs are entitled to rest days and other holidays stipulated by the EO, and there is no discrimination against FDHs. FDHs and their employers are encouraged to negotiate the working time arrangement having regard to the different circumstances and needs of different households.

² One of the major considerations for the exemption is that live-in domestic workers reside and work in the employer’s home, which renders calculating and recording working hours practically impossible, while SMW is set on an hourly basis. The exemption of live-in domestic workers also reflects the provision of in-kind benefits arising from dwelling in the household of their employers free of charge, including free accommodation and usually free food by the employers, as well as savings from the transport cost.