Forms

Application of Hong Kong Laws

The standard Employment Contract (ID 407) is the only contract acceptable to the Immigration Department, the Government of the HKSAR, whenever an application is made by an employer to employ a domestic helper from abroad. This contract is governed by Hong Kong laws, in particular, the Employment Ordinance (Chapter 57), the Immigration Ordinance (Chapter 115) and the Employees' Compensation Ordinance (Chapter 282).

Production of Contract Upon Entry into Hong Kong

A copy of the contract should be carried by the Helper upon arrival in the HKSAR. It may be required for inspection by the Immigration Officer/Immigration Assistant at the entry point.

Explanatory Notes for the Standard Employment Contract

Home address of the Helper

Clause 1: The home address of the Helper in his/her place of origin should be inserted.

Commencement date

The standard Employment Contract (ID 407) is effective for two years. At the end of the period, the Helper will be required to return to his/her place of origin at the employer's expense. The commencement date of the contract should be specified in Clause 2 by choosing either one of the following:

1. Clause 2(A) is for all newly arrived Helpers and those returning to the HKSAR after taking home leave (without deferment) to take up employment under a new or renewed contract.
2. Clause 2(B) is generally used when the Helper and the same employer renew another contract of employment with home leave deferred.
3. Clause 2(C) is for those Helpers who are starting another contract with a new employer with home leave deferred.

Live-in requirement

Clause 3: The Helper should work and reside in the employer's residence ¹ as stated in the contract.

Restrictions on employment

Clause 4(a): The Helper should only perform domestic duties for the employer specified in the contract. The employer should not require or allow the Helper to carry out any non-domestic work. Domestic duties to be performed by the Helper under the employment contract exclude driving of a motor vehicle of any description for whatever purposes, whether or not the vehicle belongs to the employer, except where prior approval for the Helper to undertake driving duties has been given by the Director of Immigration in accordance with Clause 15(d).

Clause 4(b): The Helper should not take up any other employment, including part-time domestic duties, with any other person. The employer should not require or allow the Helper to carry out any work for any other person.

Any breach of Clause 4(a) and 4(b) of the contract which forms part of the conditions of stay to be imposed on the Helper will render the Helper and/or the aider and abettor liable to criminal prosecution.

Payment of wages

Clause 5(a): The amount of wages shall not be less than the minimum allowable wage announced by the Government of the HKSAR and prevailing at the date of the contract. An employer who fails to pay the wages due under the employment contract shall be liable to criminal prosecution.

Wages shall be paid by the employer in cash or, with the Helper's consent, by cheque or into the Helper's bank account.

Deduction from wages

No deduction may be made by an employer from the wages of his/her Helper other than as permitted under the Employment Ordinance. Examples of deductions allowed under the Employment Ordinance are:

1. deduction for absence from work not exceeding a sum proportionate to the period of absence;
2. for damage to or loss of the employer's goods, equipment or property, subject to a limit of HK$300, and other conditions as stipulated in the Employment Ordinance;
3. deductions for the recovery of any advance or over-payment of wages made by the employer to the Helper but subject to a maximum of one quarter of the wage payable in one wage period.

Except with the approval in writing of the Commissioner for Labour, the total of all deductions, excluding those for absence from work, made in any one wage period must not exceed one half of the wages payable for that period.

Under the Employment Ordinance, any employer who underpays wages commits an offence and is liable to a fine of HK$350,000 and to imprisonment for three years; and any person who unlawfully deducts wages commits an offence and is liable to a fine of HK$100,000 and to imprisonment for one year.

Food allowance (if no food is provided to the Helper)

Clause 5(b): The agreed amount of food allowance should not be less than the applicable food allowance announced by the HKSAR Government.

Repatriation of the Helper

Clause 7(a): Should the Helper be unavoidably delayed in leaving Hong Kong after the termination or expiry of his/her contract, he/she should apply to the Director of Immigration for a short extension of stay before his/her permitted stay expires. No allowance shall be payable in respect of any period in which the Helper, of his/her own wish, extends his/her stay in Hong Kong.

Clause 7(b): Travelling by the most direct route will normally mean a journey undertaken by the Helper as expeditiously as possible with no undue delay or deviation en route to the destination. Whether the travelling is regarded as the most direct route will depend on the circumstances of each case e.g. the availability of direct flight or other suitable and convenient transport between two places. An example of a Helper not travelling by the most direct route would be the Helper making a stopover en route for personal reasons.

Reimbursements of fees and expenses incurred by Helper

Clause 8 :

1. The list of fees and expenses mentioned in this clause is not exhaustive. The parties should specify any other relevant items other than (i) to (v) at item (vi) according to individual circumstances.
2. The employer is advised to check with their agent (if any) or the appropriate consulate in Hong Kong as to the exact amount of the administration fee mentioned in item (v) and the nature and amount of other fees mentioned at item (vi) (if any). Such administration fee and other fees may vary among different countries.

Insurance policies for the Helper

Clause 9 :

1. Part IV of the Employees' Compensation Ordinance provides that all employers are required, by law, to take out insurance policies to cover their full liabilities.
2. The liability of the employer to provide free medical treatment for the Helper who is ill or suffering from personal injury not attributable to his/her employment is normally not covered by insurance policy for the purpose of Part IV of the Employees' Compensation Ordinance. Employers are advised to take out comprehensive insurance policy to cover their liability and potential medical and other expenses under the Employee's Compensation Ordinance, the Employment Ordinance, the common law and this clause.

Termination of contract without notice by employer

Clause 11 : The employer may terminate the contract without notice or payment in lieu if the Helper, in relation to his/her employment:

1. wilfully disobeys a lawful and reasonable order;
2. misconducts himself/herself, such conduct being inconsistent with the due and faithful discharge of his/her duties;
3. is guilty of fraud or dishonesty;
4. is habitually neglectful in his/her duties; or
5. has caused the employer, on any other ground, to be entitled to terminate the contract without notice at common law.

Termination of contract without notice by Helper

Clause 11 : The Helper may terminate the contract without notice or payment in lieu:

1. if he/she reasonably fears physical danger by violence or disease which was not contemplated by his/her contract of employment expressly or by necessary implication;
2. if he/she is subject to ill-treatment by the employer; or
3. on any other ground on which he/she would be entitled to terminate the contract without notice at common law.

Entering into new contract

Clause 13: This vacation leave period is in addition to the statutory provisions of annual leave.

Extension of contract for a short period

Clause 15(a): If the Helper and employer wish to lengthen the contract by a short period ², the Helper should apply to the Director of Immigration for an extension of stay in Hong Kong. Such extension of stay will only be granted where there are exceptional circumstances. Extension will not normally be granted in respect of renewal of contracts. The Director of Immigration has sole discretion to determine whether an extension of stay will be granted. An extension of more than one month will not normally be granted in any situation.

Medical certificate of the Helper

Clause 17: The Helper should submit his/her medical certificate to the employer for inspection. The employer is advised to scrutinise the medical certificate before sponsoring the Helper's application for an employment visa for Hong Kong.

Breaches of contract

Any breach of Clause 3, 4(a), 4(b) and 5(a) of the contract will be a breach of the undertaking to the Government of the HKSAR. Please see the "Undertaking" section for the consequences of breaching the undertaking.

Requirement of consulate

The employer is advised to check with the appropriate consulate in the HKSAR for any necessary requirements or formalities to be followed before submitting the contracts to the Director of Immigration of the HKSAR in support of the Helper's application for a visa.

Essential Points of Employment Ordinance

Employers should adhere to all provisions of the Employment Ordinance. In particular, they should pay attention to the following provisions:

Paid annual leave

Under the Employment Ordinance, the Helper is entitled to annual leave with pay within a period of 12 months following completion of 1 year's service. If the employment contract is terminated for whatever reason, including the Helper's resignation but excluding summary dismissal by the employer in accordance with Clause 11, after 3 months or more but less than 12 months, he/she should be paid a pro rata sum in lieu of annual leave.

Statutory holidays

The employer is required to grant statutory holidays to the Helper in accordance with the Employment Ordinance.

If the Helper has worked continuously for the employer for 3 months preceding any of these holidays, he/she is entitled to be paid for that holiday.

Rest day

Under the Employment Ordinance, the Helper is entitled to not less than 1 rest day in every period of 7 days. A rest day is a continuous period of not less than 24 hours. The dates of the weekly rest day will be appointed by the employer who must, unless the rest days are on a regular basis, notify the Helper before the beginning of each month.

Sickness allowance

Under the Employment Ordinance, the Helper is entitled to sickness allowance at the rate of 2 paid sickness days for each completed month of employment during the first 12 months of employment and 4 paid sickness days for each month of service thereafter. Paid sickness days may be accumulated up to a maximum of 120 days.

The daily rate of sickness allowance is equal to four-fifths of the average daily wages.

The Helper is not entitled to sickness allowance if the sick leave is less than 4 consecutive days.

Other main provisions of the Employment Ordinance

Apart from the above, employers should take note of the following provisions of the Employment Ordinance:

1. Maternity protection;
2. Severance payment;
3. Long service payment; and
4. Employment protection.

For details of the calculation of various employment rights and benefits, please refer to "A Concise Guide to the Employment Ordinance". Copies of the Guide can be obtained at the branch offices of the Labour Relations Division or downloaded from the homepage of the Labour Department.

Notes

The standard Employment Contract (ID 407) is not transferrable and if for any reason it is terminated before the standard contract period of two years has been completed, the initiating party should in writing inform the other party of the exact date of termination of the contract. Both the employer and the Helper should notify the Director of Immigration by submitting a completed "Notification of Termination of Employment Contract with Foreign Domestic Helper" (ID 407E) or a letter within 7 days of the date of termination.

Alternatively, notifications may be made online at www.gov.hk/fdhtermination.

Helpers are normally admitted for a period of two years or until two weeks after termination of contract, whichever is the earlier.

Helpers are not admitted to Hong Kong for settlement. They are not eligible to bring their dependants to Hong Kong for residence.

Execution of the employment contract does not mean that the Helper will necessarily be granted an employment visa for the HKSAR or that he/she will be granted permission to remain for the entire period of the employment contract.

The above explanatory note may vary from time to time and should be read in conjunction with and subject to any laws relating to employment and immigration. For details of the relevant statutory provisions, please refer to the Employment Ordinance, the Employees' Compensation Ordinance and the Immigration Ordinance.

Footnote:

¹ Employers who have obtained the Director of Immigration's approval before 1 April 2003 to let their Helpers live out can continue to do so, so long as they continue to employ Helpers without a break of more than 6 months.

² In making an application for extension of not more than one month, the following documents are required:

1. Visa/Extension of Stay Application Form for Domestic Helper from Abroad (ID988A) completed and signed by the Helper;
2. original copies of the current standard Employment Contract (ID407) kept by the employer and Helper with an amendment clause on such extension duly signed by both parties at the end of page 4;
3. a supporting letter signed by the employer stating the reason(s) for such extension and undertaking that upon such extension no renewal of contract with the same Helper will be required; and
4. original of the Helper’s travel document.