What Employer Needs to know:
12 Statutory Holidays for 2017 are:
- The first day of January (1 January)
- Lunar New Year’s Day (28 January)
- The third day of Lunar New Year (30 January)
- The fourth day of Lunar New Year (31 January)
- Ching Ming Festival (4 April)
- Labour Day (1 May)
- Tuen Ng Festival (30 May)
- Hong Kong Special Administrative Region Establishment Day (1 July)
- National Day (1 October)
- The day following the Chinese Mid-Autumn Festival (5 October)
- Chung Yeung Festival (28 October)
- Chinese Winter Solstice Festival (22 December) or Christmas Day (25 December) (at the option of the employer)
(i）According to the Employment Ordinance, when either Lunar New Year’s Day, the second day of the Lunar New Year or the third day of the Lunar New Year falls on a Sunday, the fourth day of the Lunar New Year is designated as a statutory holiday in substitution; and in the event that the day following the Chinese Mid-Autumn Festival falls on a Sunday, the day thereafter (i.e. the 17th day of the eighth month of the lunar calendar) is designated as a statutory holiday in substitution. As the second day of Lunar New Year of 2017 falls on a Sunday, the fourth day of Lunar New Year will be designated as a statutory holiday.
(ii）All employees are entitled to the above statutory holidays. If the statutory holiday falls on a rest day, a holiday should be granted on the day following the rest day which is not a statutory holiday or an alternative holiday or a substituted holiday or a rest day. An employee having been employed under a continuous contract for not less than 3 months is entitled to the holiday pay which is equivalent to the daily average wages earned by the employee in the 12-month period preceding the holiday.
Payment and Deduction of Wages For employer
Q3.1 Can I agree with my helper to pay lesser amount of wages than the minimum allowable wage (MAW)? What is the prevailing MAW?
A No, an employer cannot agree with the helper to pay lesser amount of wages than the minimum allowable wage. Approval for the importation of foreign domestic helper is based on facts submitted to the Director of Immigration, whereby the employer has agreed to pay not less than the minimum allowable wage. An employer who underpays wages as stated in the standard employment contract is liable, upon conviction, to a maximum fine of HK$350,000 and three years’ imprisonment. The employer would also be committing serious offences of making false representation to an Immigration Officer and conspiracy to defraud. Any person convicted of making false representation is liable to a maximum fine of $150,000 and imprisonment for 14 years. Any person convicted of the offence of conspiracy to defraud is liable to imprisonment for 14 years. The MAW is subject to regular review. For standard employment contracts made on or after 1 October 2016, the applicable MAW is HK$4,310 per month. For contracts made before that date, an employer should pay the helper throughout the contract period wages not less than the rate specified in the standard employment contract.
Q3.2 How should I pay wages to my helper?
A You are advised to pay wages by cheque or by autopayment into your helper’s bank account. To do this, you have to obtain your helper’s consent beforehand. If your helper does not prefer such methods of payment, you should pay him/her wages in legal tender. You are required to keep records of wage payments, e.g. relevant bank statements. You should also provide a receipt for payment of wages and food allowance and ask your helper to acknowledge receipt of the amount. A sample wage receipt is at Appendix III.
Q3.3 When should I pay wages to my helper?
A You should pay wages to your helper not less than once every month. Wages shall become due on the expiry of the last day of the wage period. You should pay wages to your helper as soon as practicable but in any case not later than 7 days after the end of the wage period. If you wish to change the wage period and wage payment date, you should give prior notice to your helper and clear the outstanding wages. For example, your helper commenced employment on 1st of March . If 9 you intend to change the wage period as starting from the 16th of each month, you should clear the balance of the 15 days’ wages (i.e. from 1st to 15th) within seven days after the 15th of March before you pay him/her on the new payment date in April . For helper
Q3.4 What should I do when my employer pays me wages?
A You should check the amount paid to you. If correct, you should acknowledge receipt of the amount on the receipt prepared by your employer.
Q3.5 What should I do if my employer pays less than my entitled wages?
A If the amount is less than the wages stipulated in the employment contract, you should check with your employer to see if there is any mistake in calculation. Never acknowledge receipt of wages that you were not paid. If there is no satisfactory explanation for the underpayment, you should report the case to the appropriate branch office of the Labour Relations Division of the Labour Department immediately (see Chapter 12). For both employer and helper
Q3.6 Can an employer deduct the helper’s wages to compensate for damage to goods caused by him/her? What other items may an employer deduct from the helper’s wages?
A An employer can make deductions for damage or loss to the employer’s goods or property directly attributable to the helper’s negligence or default. In any one case, the sum to be deducted shall be the cost of the damaged item, subject to a limit of HK$300. The total of such deductions shall not exceed one quarter of the wages payable to the helper in that wage period. The employer may also make deductions from the helper’s wages under the following circumstances: deductions for absence from work not exceeding a sum proportionate to the period of absence; deductions for recovery of any advance or over-payment of wages made by the employer to the helper. The total sum to be deducted shall not exceed one quarter of the wages payable to the employee in that wage period; deductions, at the helper’s written request, for recovery of any loan made by the employer to the helper; and deductions which are required or authorized under any enactment to be made from the wages of the helper. 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.
Q3.7 What are the consequences if an employer fails to pay wages to the helper 10 on time?
A If an employer fails to pay wages to the helper within seven days from the due date of payment, he/she is : required to pay interest on the outstanding amount of wages to the helper; and liable to prosecution and, upon conviction, to a fine of HK$350,000 and to imprisonment for three years. If wages are not paid within one month from the due date of payment, the helper may deem he/she has been dismissed by his/her employer without notice. Under such circumstances, the employer is required to pay payment in lieu of notice in addition to other statutory and contractual termination payment to the helper (see Chapter 8).
Medical Attention and Sickness Allowance For employer
Q5.1 Should I pay for the medical expenses incurred by my helper when he/she is ill or injured?
A Yes. When your helper is ill or injured, you shall provide free medical treatment to him/her whether or not it is attributable to his/her employment. Free medical treatment includes medical consultation, maintenance in hospital and emergency dental treatment. In this connection, you are strongly advised to take out an insurance policy with full medical and hospitalization coverage for the helper. You may also consider taking out a comprehensive insurance policy which provides medical and hospitalization coverage and satisfies the requirement under the Employees’ Compensation Ordinance at the same time. For the avoidance of doubt, the revised standard employment contract introduced on 1 April 2003 makes it clear that, under the new contract, employers are not responsible for providing free medical treatment during the period when the helper leaves Hong Kong of his/her own volition and for his/her personal purposes e.g. on home leave.
Q5.2 Can I appoint a medical practitioner for my helper in times of illness or injury?
A Under the employment contract, a helper shall accept medical treatment by any registered medical practitioner as provided by the employer. It is advisable to reach prior agreement with your helper as to which medical practitioner should be consulted in times of illness or injury. For both employer and helper
Q5.3 Under what circumstances is a helper entitled to sickness allowance?
A An employer should pay the helper sickness allowance if : he/she has accumulated sufficient number of paid sickness days; the sick leave taken is not less than four consecutive days; and the sick leave is supported by an appropriate medical certificate. Paid sickness days are accumulated at the rate of two paid sickness days for each completed month of service during the first 12 months of employment; and four paid sickness days for each completed month of service thereafter. Paid sickness days can be accumulated throughout the whole employment period, but shall not exceed 120 days at any one time. Q5.4 What is the rate of sickness allowance? When should it be paid? A The daily rate of sickness allowance is equal to four-fifths of the average daily wages* of the helper. It should be paid not later than the normal pay day.
Q5.5 Can an employer dismiss the helper who is on paid sick leave?
A No, except in cases of summary dismissal due to the helper’s serious misconduct. Otherwise, it is an offence under which the employer is liable to prosecution and, upon conviction, to a fine of HK$100,000. The employer is also required to pay the helper: payment in lieu of notice; a further sum equivalent to seven days’ wages as compensation*; and his/her entitled sickness allowance. The helper may also claim remedies for unreasonable and unlawful dismissal under the part of Employment Protection of the Employment Ordinance (see Chapter 10). * For details of the calculation of sickness allowance and compensation, 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. 17 Chapter 6: Maternity Prot