(1)

Under prevailing policy, an FDH should only provide full-time, live-in domestic services at his/her employer's residence and to serve the number of members of the employer's household as stated in the Standard Employment Contract (the Contract) (ID407).  It is specified in Clause 4(a) of the Contract that an FDH should only perform domestic duties for the employer as listed in the "Schedule of Accommodation and Domestic Duties" (the Schedule) attached to the Contract. Clause 4(b) of the Contract provides that the FDH shall not take up, and shall not be required by the employer to take up, any other employment, including part-time domestic duties, with any other person. Clause 4(c) makes it clear that Clauses 4(a) and (b) will form part of the conditions of stay to be imposed on the FDH by the Immigration Department upon the FDH's admission to work in Hong Kong under the Contract. It is also clearly stipulated that a breach of the conditions of stay will render the helper and/or any aider and abettor liable to criminal prosecution.

(2)

The prevailing policy seeks to balance the interests of the FDHs, their employers and the community at large. It would be unfair to the FDHs if employers are given the right to deploy them to perform non-domestic duties or to work for other persons in other premises. This would also deprive job opportunities for local domestic helpers who may readily take up part-time domestic work. As regards the employers, they enjoy fairly convenient and easy access to the services of FDHs at present. Had it not been for the safeguards afforded by the requirements mentioned in (1) above, it might be necessary to tighten the admission criteria for FDHs. Employers also have the choice of engaging local domestic helpers who are more flexible performing different duties and/or work in different locations.

(3)

Since domestic duties are sundry in types, it is unrealistic to list all domestic duties in detail and exhaustively here or in the Contract, although the broad categories of domestic duties are listed in the Schedule of Accommodation and Domestic Duties attached to the Contract.

(4)

Whether a particular activity/situation would constitute a breach of the FDH's conditions of stay and whether aiding and abetting is involved in the case is a matter of fact to be determined having regards to all circumstances of a particular case.  In case of doubt, applicants may specify their particular needs/circumstances in paragraph 5 of the Schedule of Accommodation and Domestic Duties for consideration and approval by the Director of Immigration.  However, these particular needs or circumstances should be within the ambit of genuine domestic duties arising from or incidental to serving the employer's household.

(5)

The conditions of stay in respect of an FDH apply only whilst the FDH is in Hong Kong.  If the FDH follows the employer to go abroad on a mutual consent basis, the parties to the Contract are reminded to observe the relevant visa requirements, laws and regulations of the destination country/territory.  Particular attention should be drawn to the insurance arrangements.  If the FDH gets injured at work in the destination country/territory, he/she may claim compensation in accordance with the employees' compensation law of that country/territory.

(6)

Respect and reasonableness of both sides are conducive to a long-term and harmonious employment relationship.

Q1:

Who is eligible to employ an FDH? Where can the public find out the eligibility criteria?

A1:

Any Hong Kong resident who can satisfy the following criteria may employ an FDH:

1. he/she is financially capable of employing an FDH;
2. he/she has entered into a Standard Employment Contract (ID407) as specified by the Director of Immigration with the prospective helper;
3. he/she will require the prospective helper to perform domestic duties only;
4. he/she will not allow or require the prospective helper to take up any employment with any other person during the contractual period as specified in the employment contract;
5. he/she will pay the helper a salary no less than the minimum allowable wage as announced by the HKSAR Government;
6. he/she will let the helper work and reside at the contractual address only;
7. he/she will provide the helper with decent accommodation and suitable privacy;
8. he/she is a bona fide resident in Hong Kong and the bona fides of him/her and the prospective helper are not in doubt;
9. he/she has no adverse record in respect of employment of FDH.

Details of eligibility criteria are stated in Guidebook for the Employment of Domestic Helpers from Abroad.

Q2:

Who is responsible for assessing whether a person is eligible to employ an FDH?

A2:

The Director of Immigration will assess the eligibility of the applications as per the criteria given in the guidebook. Those who are considered ineligible may request for reconsideration through the channel provided in the written notification.

Q3:

What should I submit together with the application to ensure that Immigration Department will accept the application?

A3:

You must ensure that both the application forms for employing a domestic helper from abroad and for an entry visa are duly completed and are enclosed with all supporting documents, including a completed contract (notarized by the relevant consulate, if required). Applications without any of the two application forms or any necessary supporting documents will be returned and no further action will be taken until all the application forms and necessary documents are re-submitted.

Q4:

What can I do to ensure that the Immigration Department has received my application?

A4:

Upon receipt of the application, the Immigration Department will send an acknowledgement letter to you. Alternatively, you may submit your application by registered mail. The Immigration Department will regard the date of the postal chop on the envelope as the date of application.

Q5:

What will be the normal processing time of an FDH application for the Immigration Department? Is there a performance pledge?

A5:

The Immigration Department's performance pledge for FDH applications is that 90% of the applications will be finalized within 6 weeks upon receipt of all necessary documents.

Q6:

Must FDH employment contracts be notarized by corresponding consulates before Immigration Department approve FDH employment visas?

A6:

Yes. Except for the countries not requiring notarization of FDH employment contracts, all contracts have to be notarized before FDHs are approved to work in Hong Kong.

Q7:

Why should my FDH apply for 2 visas (one for entry and the other for extension of stay) upon renewal of contract application?

A7:

According to the Standard Employment Contract (ID407), an FDH should enjoy his/her home leave upon completion of his/her 2-year employment contract. If he/she wishes to continue to work as FDHs in Hong Kong, he/she should apply for an entry visa to enter Hong Kong to commence the new contract. Starting from 1 October 2003, all FDHs applying for renewal of contract will be granted a visa if their applications are approved. In case the employer can release him/her to take home leave, there is no need for the FDH to apply for extension of stay. Extension of stay is only required when the employer cannot make such arrangement immediately.

Q8:

I intend to employ a foreign domestic helper (FDH) from overseas, what is the current minimum allowable wage (MAW) for foreign domestic helpers?

A8:

The minimum allowable wage (MAW) is subject to periodic reviews by the Labour and Welfare Bureau; and public announcement will be made by them when there is a change or when they decide to maintain the wage level. For information on the prevailing MAW, you may refer to Labour Department's website at the following address: http://www.labour.gov.hk/eng/pub lic/wcp/FDHguide.pdf (PDF format)

Q9:

Can I agree with my helper to settle for wages lower than the minimum allowable wage (MAW)?

A9:

No. Government's policy is that FDHs employed by local employers must be paid a wage not lower than the MAW. In line with this policy, the Director of Immigration will not approve the entry of an FDH whose wage as stated in the Standard Employment Contract (ID407) is less than the MAW. After signing a contract which specifies a wage at or above the MAW, an employer cannot subsequently agree with the helper to pay a wage lower than the MAW. An employer who underpays wages is liable, upon conviction under the Employment Ordinance (Cap. 57), to a maximum fine of HK$350,000 and three years' imprisonment. The employer may also be committing serious offences of making false representation to an Immigration Officer and conspiracy to defraud. Any person convicted of making false representation under the Immigration Ordinance (Cap. 115) is liable to a maximum fine of $150,000 and imprisonment for 14 years. Any person convicted of the offence of conspiracy to defraud (under the Common Law and punishable under the Crimes Ordinance) is liable to imprisonment for 14 years.

Q10:

What would be the applicable "minimum allowable wage" (MAW) for entering into a new contract with an FDH?

A10:

The current MAW for FDHs is $3,580 per month, which has been effective since 10 July 2008. The new MAW is applicable to all FDH employment contracts signed on or after 10 July 2008.
FDH employment contracts signed on or before 9 July at a wage level not lower than the then prevailing MAW of $3,480 per month will still be processed by the Immigration Department (ImmD) on such wage terms, provided that the applications would have reached ImmD on or before 6 August 2008. This is to allow time for employers whose contracts signed on or before 9 July to complete the necessary procedures before submitting their applications to ImmD.

Q11:

I would like to learn more about my rights and obligations as an employer of FDH. Where can I obtain such information?

A11:

The Labour Department has issued a "Practical Guide for Employment of FDHs - What FDH and their Employers Should Know" (PDF format), covering answers to some of the common questions raised by FDHs and their employers and containing information such as wages, rest days and leaves, medical attention and sickness allowance, maternity protection, severance payment and long service payment, employment protection, termination of contract, passage and food and travelling allowance, etc. The Guide is available in Chinese, English, Indonesian, Tagalog and Thai and is disseminated free of charge at the offices of Labour Relations Division of the Labour Department.

Q12:

What expenses should I reimburse my helper under the Standard Employment Contract (ID 407)?

A12:

As stated in Clause 8 of the Standard Employment Contract (ID407), an employer of FDH is responsible for the expenses incurred by the FDH for his/her departure from his/her place of origin and entry into Hong Kong, including medical examination fees, authentication fees by the relevant Consulate, visa fee, insurance fee, administration fee or other fees of similar nature imposed by the relevant government authorities. In the event that the FDH has paid the said fees, employer should fully reimburse his/her FDH the amount so paid upon demand and production of the corresponding receipts or documentary evidence of payment.

Q13:

What items of payment is an employer liable to pay to a foreign domestic helper upon termination of the helper's employment contract?

A13:

Foreign domestic helpers enjoy the same protection under the Employment Ordinance (EO) as do local employees. They are further entitled to the rights and benefits specified in their standard employment contract. An employer who intends to terminate the employment contract of a helper is required to give the helper one month's prior notice in writing or one month's wages in lieu of notice as well as other termination payments, which include -

• all outstanding wages;
• 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;
• where appropriate, long service payment or severance payment; and
• any other sum due to the helper in respect of the employment contract e.g. free return passage, food and travelling allowance.

Q14:

What are the restrictions on deployment of a foreign domestic helper (FDH)?

A14:

An FDH is admitted into Hong Kong for full-time, live-in employment with a specific employer to perform domestic duties at the employer's residence specified in the Standard Employment Contract (the Contract) (ID407). It is provided in Clause 4(a) of the Contract that an FDH should only perform domestic duties for the employer specified in the Contract. The employer should not require or allow the FDH to carry out any non-domestic work. It is also stated in Clause 4(b) that the FDH should not take up any other employment, including part-time domestic duties, with any other person. The employer should not require or allow the FDH to carry out any work for any other person. Clause 4(c) of the Contract stipulates that Clauses 4(a) and (b) will form part of the conditions of stay to be imposed on the FDH by the Immigration Department upon the FDH' s admission to work in Hong Kong. A breach of Clauses 4(a) and (b) will render the helper and/or any aider and abettor liable to criminal prosecution.

Q15:

I own two flats where I used to dwell alternately. Can I enter both addresses in the employment contract?

A15:

No. It is specified in Clause 3 of the Standard Employment Contract (ID407) that an FDH shall work and reside in the employer's residence at a specified address. It is also stated in Clause 4(a) that an FDH should only perform domestic duties as specified in the "Schedule of Accommodation and Domestic Duties" attached to the Contract. The employer's residence refers to a single household in one location and it is therefore not permissible to include a second address in the Contract. Please also see GR2 above.

Q16:

Can I deploy my FDH to perform duties outside my residence such as buying groceries, car-washing, bringing my children to and from school, taking care of them while my family dine in a restaurant or at a friend/ relative's home?

A16:

Yes. Duties such as going to the market, car-washing, delivery of food or personal items to the employer or his family members (living in the same residence) outside the employer's dwelling place etc. are considered incidental to household chores. Please also see GR3 and GR4 above.

Q17:

My FDH is employed to take care of my elderly parent who needs constant care and is now staying full-time in an elderly home. Can I ask my FDH to take care of my parent in the elderly home in the daytime and go back to sleep in my residence at night?

A17:

No. The FDH should only perform domestic duties for the employer's household at the address specified in Clause 3 of the Standard Employment Contract (ID407). Deploying an FDH to work in an elderly home cannot be regarded as genuine domestic duties and is therefore not permissible. Having said that, simple delivery of food or sundry items to a member of the same household who is temporarily hospitalised does not warrant intervention of the law enforcement agencies.

Q18:

My family will be travelling to the Mainland or abroad during holidays. Can I bring my FDH along to take care of my kids or elderly family members?

A18:

Please see GR5.

Q19:

Can I employ someone else's FDH to work for me part-time as a temporary replacement while my FDH is on leave?

A19:

No. An FDH is admitted into Hong Kong for employment with a specific employer under a Standard Employment Contract (ID407). He/She is not employable by other employers without prior permission of the Director of Immigration. You may consider employing a local domestic helper while your FDH is on leave. The Labour Department Local Domestic Helper Recruitment Hotline is 2503 3377. The Placement Services Hotline under the Local Domestic Helpers Integrated Scheme administered by the Employees Retraining Board is 2317 4567.

Q20:

Can I allow my FDH to take up part-time jobs?

A20:

No. An FDH is permitted to work with the contractual employer as approved by the Director of Immigration. If your FDH takes up unapproved employment with any other person, he/she will breach the condition of stay imposed on him/her. He/She will be liable to prosecution and subsequent removal, and his/her future employment application will be subject to close scrutiny. Any person who aids and abets an FDH to breach a condition of stay is also liable to prosecution. Upon conviction, the maximum penalty will be a fine of $50,000 and imprisonment for 2 years.

Q21:

Can I apply to change my FDH's contractual address to that of my parents since my family (wife and children) will be moving abroad due to my posting overseas for a term of three years? What about a temporary arrangement, say, for 3 months?

A21:

FDHs are admitted into Hong Kong for full-time, live-in employment with a specific employer under a Standard Employment Contract (ID407), the terms and conditions of which are enforceable in Hong Kong and governed by the Laws of Hong Kong, in particular, the Employment Ordinance (Cap. 57), the Immigration Ordinance (Cap. 115) and the Employees' Compensation Ordinance (Cap. 282). The request for amendment of the contractual address cannot be acceded to in the event that the employer has been relocated outside Hong Kong. If you want to keep the FDH to work for your parent, arrangements should be made for a new contract to be signed between your parent and the FDH and an application should be made to the Immigration Department for change of employer.
In the event of temporary arrangement, it is important that you reach a mutual agreement with your FDH as to whether he/she would agree to accompany you to go abroad or remain in your contractual address to take care of your residence/household whilst you are not in Hong Kong.  Please also see GR5.

Q22:

My parents have retired and live in a separate residence. I want to employ an FDH to take care of them at their home. Since my parents have no income/inadequate assets, can I enter into a contract with an FDH to work in my parents' home? In this case, the address specified in the employment contract is not my residential address, is this OK?

A22:

No.  Clause 3 of the Standard Employment Contract (ID407) stipulates that an FDH shall work and reside in the employer's residence specified in the contract.  In general, Immigration Department may consider accepting the financial proof provided by the employer's child in support of the application for employing an FDH made by an aged parent.  In the event that the parent is not capable of acting as an employer due to health or other justifiable reasons, his/her child should state clearly the special circumstances and produce relevant supporting documents.  Each case will be dealt with on its individual merits.

Q23:

I live with my parents and children. Recently, my mother has fallen sick and has been hospitalised for 2 weeks. Can I send my FDH to the hospital to take care of my mother?

A23:

Please refer to A17.  In general, it is permissible for your FDH to visit your mother in the hospital, bringing daily necessities to her as required.  However, the FDH has no contractual obligation to take care of the sick at a hospital on a long-term basis.  The employer may also be personally liable to pay employees' compensation or common law damages in case the FDH gets injured whilst performing such extra duties at the hospital, in which case the standard insurance policy may not apply.

Q24:

I used to live with my husband, parents-in-law and children. My mother-in-law is the employer of the FDH. My parents-in-law will soon move to another flat which is located in the next building. The FDH will stay with my mother-in-law. Can my mother-in-law deploy the FDH to clean my flat on a regular basis, say, twice a week?

A24:

No. If the employer has moved to a new address, he/she should inform the Immigration Department of such change in accordance with Clauses 15(b) & (c) of the contract. The employer should not require or allow the FDH to perform domestic work at any address other than the contractual address even if the premises may be the property of the same employer. Offenders will be liable to criminal prosecution and on conviction to a fine of $50,000 and to imprisonment for 2 years. Any aider and abetter will be liable to the same punishment. Please also see GR2.

Q25:

Further to Q24 above, if the FDH of my mother-in-law is not allowed to work in my flat, can the FDH serve us when we go to her home or have our meals there?

A25:

There is no objection for an FDH, as part of her duties incidental to the domestic duties specified in the Standard Employment Contract (ID407), to serve guests who are relatives or friends of the employer at the contractual address.  Please also see GR3 and GR4.

Q26:

Can I ask my FDH to carry out massage duty for me?

A26:

In general, an FDH is not contractually obligated to perform massage service for the employer as such service is generally not regarded as domestic duties. However, it is permissible for FDHs to help handicapped or paralyzed parent of the employer to perform regular movements of their limbs as part of the domestic duties of taking care of a household member. Please also see GR3 and GR4.

Q27:

What should an FDH do if the employer requires him/her to clean his house which is not the one specified in our employment contract?

A27:

An FDH should only perform domestic duties for the employer specified in the Standard Employment Contract (ID407) and at the contractual address.  The FDH should advise the employer accordingly.  He/she should refuse to perform such duties.  If the employer insists, an FDH may approach the Immigration Department for assistance.

Q28:

If an FDH is pregnant, can she refuse to perform strenuous duties such as moving heavy furniture, tidying up the upper bunk, etc. if required by the employer?

A28:

It is advisable for the FDH to discuss with the employer with a view to reaching a mutual understanding on the types of household duties she may perform during pregnancy.  Please see GR6.  If needed, the FDH may also approach the Labour Department for advice on matters relating to the Employment Ordinance (Cap. 57).

Q29:

Can an FDH live away from his/her employer's home?

A29:

No. An FDH should work and reside in the employer's residence in accordance with Clause 3 of the Standard Employment Contract (ID407). The employer is required to provide the FDH with free accommodation as per the standard specified in the "Schedule of Accommodation and Domestic Duties" of the employment contract.
(Employers who have obtained the Director of Immigration's approval before 1 April 2003 to let their FDHs live out can continue to do so, so long as they continue to employ FDHs without a break of more than 6 months.)

Q30:

Can an FDH take up part-time employment with the employer's consent?

A30:

No. It is an offence under the Immigration Ordinance (Cap. 115) for an FDH to take up any employment with any person other than the employer named in his/her visa. The FDH will be liable to prosecution and removal for breaching the conditions of stay. Upon conviction, the maximum penalty is a fine of $50,000 and imprisonment for 2 years. If the FDH is so removed, his/her future application to work in Hong Kong will be subject to close scrutiny.

Q31:

I am a businessman. I usually invite my business friends/ staff home for social gatherings twice to thrice a week. My FDH is required to serve my guests besides preparing refreshment, beverages and food. Please advise if it is allowable.

A31:

As far as the duties are incidental to and genuinely associated with the household chores and duties specified in Item 5 of the Schedule of Accommodation and Domestic Duties attached to the Standard Employment Contract (ID407), there is no breach of the law.  Please also see GR3, GR4 and A25.

Q32:

If an employer has deceased, can the FDH continue to work for his/her spouse or family members until the contract expires?

A32:

The contract with the deceased employer is no longer valid on the date of his/her death. The FDH is required to give the Director of Immigration notice in writing within seven days of the date of termination and to leave Hong Kong in two weeks. If the FDH would like to work for the employer's spouse or family members, he/she has to submit an application for change of employment sponsored by the spouse or a family member within two weeks from the date of such termination. The Immigration Department will process these applications expeditiously.

Q33:

My children's classmates live in the neighbourhood. Sometimes, if their mothers/FDHs are busy, I will ask my FDH to take them to school. Does it infringe the law?

A33:

An employer should not require or allow the FDH to work for any other person and the FDH has no contractual obligation to follow an instruction of helping a neighbour. However, given the said circumstances and the nature of the said assistance, if offered out of volition and good will of the FDH to a neighbour, it does not warrant intervention of the law enforcement agencies.

Q34:

I have recently bought a new car. Can I deploy my FDH to perform driving duties?

A34:

Under the Standard Employment Contract (ID407), domestic duties to be performed by an FDH exclude driving of a motor vehicle.  Moreover, the visa granted to an FDH to take up employment in Hong Kong is subject to the condition of stay that performing of driving duties is not permitted.  To address the genuine needs of some employers, a special arrangement is made to allow FDHs to perform driving duties which are incidental to and arising from domestic duties.  Application may be made to the Director of Immigration for special permission to be granted to the FDH to perform driving duties.

Q35:

My FDH has special permission to perform driving duties.  Can he/she drive me to and from the office daily?

A35:

No.  Special permission for an FDH to perform driving duties is given on the basis that the driving duties are incidental to and arising from any of the five broad categories of domestic duties, namely household chores, cooking, baby-sitting, child-minding and looking after aged persons in the household.

Q36:

My FDH has special permission to perform driving duties.  Can I ask him/her to drive my friends/visitors from overseas to have sightseeing tours in Hong Kong?

A36:

No. Please see A34. The situation described above falls outside the scope of domestic duties mentioned.

Q37:

The FDH that I am going to employ is currently holding an international driving licence. Can I apply for special permission for him/her to perform driving duties before he/she can obtain a Hong Kong driving licence after arrival?

A37:

No. An FDH must be in possession of a valid Hong Kong driving licence at the time of application for special permission to perform driving duties.

Q38:

I have changed my residential address.  Do I need to provide proof to the Immigration Department?

A38:

If the address on the Standard Employment Contract (ID407) is changed, you should notify the Immigration Department by giving the new address in the duly completed form "Revised Schedule of Accommodation and Domestic Duties" (ID407G). Where the new address refers to a flat in a housing estate run by the Housing Department/Hong Kong Housing Society, the employer is required to produce a letter of consent from the respective authority granting permission for the FDH to reside in the premises and a copy of tenancy agreement.

Q39:

I am going to move into a new apartment. As renovation work will last for 2 months, my family will be staying in a hotel.  Can I ask my helper to live with my parents?

A39:

Under Clause 3 of the Standard Employment Contract (ID407), an FDH shall work and reside in the employer's residence stated in the contract.  Request for the FDH to live out will not be granted as from 1 April 2003 onwards.  In case of special circumstances, it will be dealt with on individual merits. Please refer to A38 in case of change of address.

Q40:

I am going to move into a new apartment. Can I ask my helper to clean up the new accommodation whilst packing for the old one?

A40:

Assisting the employer to move to a new premise can be regarded as a domestic duty, provided that the transitional period is reasonably short.  Please also see GR6. However, the change of contractual address should be properly registered with the Immigration Department.  Please refer to A38.

Q41:

Do I need to report to the Director of Immigration if my contract with an FDH is terminated prematurely?

A41:

Yes.  Clause 12 of the Standard Employment Contract (ID407) states that in the event of termination of the contract, both the employer and the FDH shall give the Director of Immigration notice in writing within seven days of the date of termination. A copy of the other party's written acknowledgement of the termination shall also be forwarded to the Director of Immigration. It is essential to state the exact date of termination and information such as the reason of termination will be useful.

Q42:

When I decide to terminate the contract prematurely, my FDH asks me not to inform the Director of Immigration or to leave the written notification with her or with the employment agent. Should I agree to that?

A42:

No.  You should not agree to that. An FDH is permitted to remain in Hong Kong for not more than two weeks after premature termination of contract. If an FDH does not leave upon the expiry of stay, he/she will commit an offence for breaching his/her condition of stay. If you agree not to inform the Director of Immigration of the premature termination of employment contract to facilitate her overstaying in Hong Kong, you may be liable to prosecution for aiding and abetting the FDH to breach a condition of stay by overstaying, and on conviction to a fine of $50,000 and to imprisonment for 2 years.

Q43:

Can an employer terminate his helper's contract before it expires?

A43:

An employer and his helper alike may terminate the contract 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.
An employer who fails to pay the statutory benefits and other payments due to the helper in accordance with the EO and the standard employment contract commits an offence.

Q44:

How is annual leave pay calculated when an employer terminates the contract of a helper?

A44:

A helper is entitled to paid annual leave after serving every period of 12 months with the same employer. The helper's entitlement to paid annual leave will increase progressively from seven days to 14 days according to his/her length of service.
When the employment contract is terminated, the employer should give the helper payment in lieu of any annual leave not yet taken in respect of every 12 months' completed service. A helper with three but less than 12 months' service in a leave year (i.e. a period of every 12 months after the commencement of employment) is entitled to pro-rata annual leave pay.

Q45:

Under what circumstances should an employer pay severance payment or long service payment to his helper if he terminates the helper's contract?

A45:

An employer should pay severance payment to his helper if the helper has been employed continuously for not less than 24 months and is dismissed (or his/her contract is not renewed) by reason of redundancy.
An employer should pay long service payment to his helper if the helper has been employed continuously for not less than 5 years and is dismissed (or his/her contract is not renewed) by reason other than serious misconduct of the helper or redundancy.
However, an employer is not required to pay both long service payment and severance payment to the helper.

Q46:

How to calculate the amount of severance payment and long service payment payable to the helper?

A46:

Severance payment and long service payment are calculated as follows : (monthly wages x 2/3) x reckonable years of services*

* service of an incomplete year should be calculated on a pro rata basis.

Q47:

How can employers and helpers seek advice or assistance regarding issues of employment contract or the EO?

A47:

The Labour Relations Division of the Labour Department provides consultation service to assist employers and helpers in understanding the various employment entitlements. The division also provides free conciliation service to resolve claims under the EO or the employment contract. If conciliation is not successful, the Labour Department will, at the request of the party concerned and depending on the claimed amount, refer the case to the Minor Employment Claims Adjudication Board or the Labour Tribunal for adjudication. Information on the EO can be obtained through the Labour Department website (http://www.info. gov.hk/labour) and Telephone Enquiry Service (2717 1771).

Under what conditions will an employer enjoy the waiver of levy during the suspension period from 1 August 2008 to 31 July 2013?

A48:

Employers are not required to pay the Employees Retraining Levy as long as the visas for the helpers are granted by the Director of Immigration from 1 August 2008 to 31 July 2013 regardless of the date of signing the employment contract or the date of submission of the visa application.

Q49:

How to determine the date on which visa is granted by the Immigration Department?

A49:

The date of issue of the visa is printed on the visa label which should also be the date of visa collection

Q50:

Can I still be benefited from the waiver of levy if my helper's application was submitted before 1 August 2008 but the visa has not been collected?

A50:

The suspension will apply to cases where the employment visa of the helper is granted by the Immigration Department between 1 August 2008 and 31 July 2013, regardless of the date on which the visa application is submitted. However, if the visa label has not been collected for 3 months after the date of approval, the application may be taken as cancelled.

Q51:

If the employer chooses to collect the employment visa of his/her Foreign Domestic Helper (FDH) after 1 August 2008, could the employer ask his/her FDH to work while waiting for the issue of the employment visa?

A51:

The Employees' Compensation Ordinance (Cap. 282) lays down the rights and obligations of employers and employees in respect of injuries or death caused by accidents arising out of and in the course of employment. The Ordinance also stipulates that no employer shall employ any employee in any employment unless there is in force in relation to such employee a policy of insurance to cover the employer's liabilities both under the Ordinance and at common law.
Insofar as the employment of FDHs is concerned, the employee's compensation insurance policy is valid only during the employment period (i.e. during the validity period of the employment visa of the FDHs concerned). Besides, unless there are other additional terms, these insurance policies would usually cover the injuries or death suffered by an employee arising out of and in the course of employment only. So, if the FDH has yet been granted a valid employment visa, the employer should not ask his/her FDH to work while waiting for the issue of the employment visa, or else he/she may commit an offence of employing a person who is not lawfully employable. If the FDH suffers injuries or death in the period, the employer may also have to shoulder the civil liabilities of making compensation in huge sum.

Q52:

If my prospective helper was issued with a visa issued before 1 August 2008 but the visa was lost, can I request to have a replacement visa issued after 1 August 2008 so that I can enjoy the waiver of levy?

A52:

Replacement visa will only be issued if the existing visa is lost or damaged. Even though the replacement visa is issued after 1 August 2008, you will not enjoy the waiver of levy under such circumstances.

Q53:

Is there any quota for each employer to enjoy the waiver of levy? If I apply to employ more than one helper and their employment visas are all granted within the suspension period, will all contracts be exempt from levy payment?

A53:

As long as the employment visas of the helpers are granted within the suspension period, levy will be waived. There is no quota for the number of contracts to be exempt from levy payment for each employer.

Q54:

If the contract with my helper has yet to run its 2-year full course, can I terminate the contract and enter into a new one with the same helper so as to benefit from the waiver of levy during the suspension period?

A54:

It is the contractual parties' own decision whether or not to terminate a contract but they have to observe their individual obligations regarding termination of contract. From 1 August 2008, a new special arrangement was introduced whereby application for advanced contract renewal involving the same employer and the same employee is accepted during the period from 1 August 2008 to 31 July 2010. Under the new arrangement, the helper does not need to apply afresh from abroad to re-enter Hong Kong for employment. The employer and the helper may opt to start the new contract in Hong Kong immediately after the termination of the existing contract.

Q55:

How could I submit the application for advanced contract renewal?

A55:

The application procedures are similar to those of the normal contract renewal cases. The new contract has to be notarized if so required by the relevant Consulate. Besides, a written confirmation duly signed by the employer and the helper regarding the termination of the existing contract and the date of termination is required. For streamlining of procedures, proof of the employer's financial position is waived for this kind of application if there is no change of employer.

Q56:

Is there any time frame for submission of the advanced contract renewal application?

A56:

The application for advanced contract renewal has to be submitted before 31 July 2010. Normally, such application can be made within 4 weeks prior to the termination of the existing contract. However, to ensure that applications received could be properly processed for the grant of visa before the end date of the suspension, the Immigration Department would need to set a cut-off date for employers to submit visa applications for advanced renewal of contracts and new contracts, where part of the contract period falls after 31 July 2010. The Immigration Department would work out the exact cut-off date taking into account the operational experience after the suspension has taken effect and make prior announcement in early 2010 to inform the public of the application deadline and other detailed arrangements.

Q57:

If I terminate prematurely the existing contract with my helper and enter into a new contract with her immediately, will there be any break in the service of my helper?

A57:

Whether there will be a break of service would very much depend on the circumstances of the individual cases. That said, the application for premature contract renewal has to be made prior to the termination of the existing contract. If the application is approved, an extension of stay of normally not exceeding one year may be granted together with the issuance of an entry visa with validity in line with the extension of stay granted.

Q58:

What is the processing time for advanced contract renewal application?

A58:

The application will normally be finalized within the same day if all necessary supporting documents are in order. However, if there is upsurge of applications, applicants may be programmed for submission of application or collection of visa as appropriate.

Q59:

What are the approval criteria for advanced contract renewal applications?

A59:

Each application will be considered and assessed on its individual merits in accordance with the prevailing policies. Normally, if there is no change in circumstances since the approval of the last contract, the application will be favourably considered.

Q60:

It is said that the Director of Immigration reserves the right to refuse visas for advanced contract renewal for cases involving blatant manipulation. What are these cases?

A60:

Application may be refused if the bona fides of the employer and the helper are in doubt; or if there is known record to the detriment of the employer and/or the helper, such as illegal deployment of the helper for non-domestic duties; or there is breach of the standard Employment Contract (ID407), such as the helper failing to work and reside at the employer's residence as stated in the contract.

Q61:

Where can I submit the application for advanced contract renewal application?

A61:

Application may be submitted in person or through the authorized representative to the Foreign Domestic Helpers Section or the Immigration Branch Offices (except the Hong Kong Island Travel Documents Issuing Office).

Q62:

What are the forms and documents required for the advanced contract renewal application?

A62:

The employer and the helper have to complete form ID988B and ID988A respectively. They need to complete also the form SF/IM/1607. Supporting documents required include an original copy of each of the current and the new employment contract, original of the helper's passport, copy of the helper's Hong Kong identity card and proof of the employer's residential address (original and copy). Further documents in support of the application may be required by the processing officer in individual cases.

Q63:

The form SF/IM/1607 consists of 2 pages. Do the employer and the helper need to complete all pages?

A63:

The two pages on the form SF/IM/1607 caters for 2 scenarios, one for the existing contract that has been terminated and the other for the existing contract to be terminated. The employer and the helper only need to complete either page as appropriate. Please click here for the guidance notes for form completion.

Q64:

Do I still need to pay levy for my old contract if I renew the contract with my existing helper after 1 August 2008?

A64:

For those contracts where visas are granted before 1 August 2008, employers should continue to pay the levy as required under the law until the end of the contract. Employers are reminded to pay levy in accordance with the due-date as specified in the Payment Note (ID971). The employer is required to pay the whole instalment ($2,400) irrespective of the actual period the helper has worked for the employer in that instalment period. For example, if the employer has paid for the first instalment and is going to prematurely terminate his/her helper in the 7th month of the employment period, the employer is required to pay the second instalment in full.

Q65:

If the contract with my existing helper will complete its 2-year course in June 2010 and we agree to renew the contract with visa issued on or before 31 July 2010, how long can I enjoy the waiver of levy?

A65:

You can enjoy the waiver of levy for the whole contract until its completion or termination if the visa is issued on or before 31 July 2010.

Q66:

Can I transfer the unused balance of levy of old contract to the helper who will be employed after the suspension period?

A66:

No. As the amount of levy payable per month will become $0 during the suspension period, all unused balance of levy will not be carried forward to the time after the suspension ends.

Q67:

I have collected visa for my helper before 1 August 2008. Now I decide to cancel the visa as it has not been activated. How can I get back the levy paid for the first instalment ($2,400)?

A67:

All levy paid is not refundable under any circumstances.

Q68:

My helper's visa was granted on 16 July 2008 and arrived Hong Kong to commence to work for me on 4 August 2008. Do I need to pay the remaining instalments if the contract is to be terminated on 2 February 2009 i.e. in the 6th month of employment period?

A68:

No. You do not need to pay the remaining instalments under the existing arrangement.

Q69:

I received a reminder to ask me to settle the whole second levy instalment ($2,400) but I had just employed the helper for 6 months and 14 days. Can I settle the payment on pro-rata basis? What is the consequence if I do not settle the payment?

A69:

The levy should be settled in full instalment and no pro-rata payment will be accepted. Legal action may be taken against you to recover the outstanding instalment(s). Immigration Department will also take into account such adverse record if you submit another application for employing helpers from abroad. You may thus be considered ineligible for employment of helper from abroad for a certain period of time.

Q70:

Can the unused balance of levy be refunded after 1 August 2008?

A70:

All unused levy is not refundable under any circumstances.

Q71:

Is there any change to the amount of levy payable and payment method during the suspension period for contracts with visas issued before 1 August 2008?

A71:

No. The levy payable for each helper with visa issued before 1 August 2008 is still $400 per month multiplied by the number of months covered by the employment contract. For payment by instalment cases, employers may make the subsequent instalment payment in person or through representatives in cash or by cheque to the Foreign Domestic Helpers Section at the Immigration Headquarter or Immigration Branch Offices listed on the back of the Payment Note (ID971) within office hours. If you opt to send the payment by post or drop-in box, you are required to enclose your cheque (quoted with the file reference) and the Payment Note and send them by mail or drop them at the designated collection box at the Immigration Department Headquarters.

Q72:

Is there any change to the existing procedures in submitting an application for employment of a helper after 1 August 2008?

A72:

No. The application procedures remain largely the same except the prospective employer need not pay the levy for visa granted by the Immigration Department during the suspension period.

(i)

Rights and obligations issues

Q73:

If an employer terminates the helper's contract before completion, signs a new contract with the same helper and submits application to the Immigration Department for advanced renewal, does the employer need to make termination payments to the helper?

A73:

If the new contract of the helper takes effect immediately after the ending of the existing contract, the helper's years of service with the employer will not be affected or interrupted due to the advanced renewal. In general, the employer does not need to pay the helper long service payment or other termination payments calculated according to years of service.
However, the employer has obligation to follow the contractual terms signed by both parties in the termination of contract. According to the provision of the standard employment contract, the employer need to give the helper one month's notice or one month's wages in lieu of notice for termination. Regarding the arrangement for free passage provided to the helper upon termination, please refer to question 74.
Each case has its own circumstances and is subject to individual merits and mutual arrangements by both parties. In case of dispute, it may be necessary to seek adjudication of the Labour Tribunal or Minor Employment Claims Adjudication Board.

Q74:

If the employer prematurely terminates the helper's contract and renews the contract with the same helper, does it affect the helper's statutory entitlements under the Employment Ordinance?

A74:

Some statutory entitlements under the Employment Ordinance are related to the employee's length of continuous employment, such as long service payment, severance payment, number of days of annual leave, number of paid sickness days etc. If the new contract of the helper takes effect immediately after the ending of the existing contract, the helper's years of service with the employer will not be affected or interrupted due to the advanced renewal. Therefore, in general, the statutory entitlements of the helper will not be affected.

In the above circumstances, the employer should calculate and grant annual leave and statutory holidays to the helper in the way that the continuity of contract is not broken.

Annual leave

• The helper has not taken any annual leave. He/she has accumulated 7 days' annual leave during the leave year from 1 June 2007 to 31 May 2008 (assuming that the employer has not appointed leave year otherwise).
• The employer should grant the above-mentioned 7 days' annual leave to the helper during the subsequent leave year from 1 June 2008 to 31 May 2009.
• The second leave year for calculating the annual leave for the helper should be 1 June 2008 to 31 May 2009.

Statutory holiday

• As the helper's length of service is calculated from 1 June 2007, he/she has continuous employment for not less than 3 month immediately preceding 15 September 2008 (the day following Mid-Autumn Festival). The employer needs to grant pay for that statutory holiday to the helper.

Each case has its own circumstances and is subject to individual merits and mutual arrangements by both parties. In case of dispute, it may be necessary to seek adjudication of the Labour Tribunal or Minor Employment Claims Adjudication Board.

Q75:

Under the Advanced Contract Renewal Arrangement, the Immigration Department allows the FDHs to continue to work in Hong Kong. As such, why the employers are still required to grant free passage to the FDHs?

A75:

According to the standard employment contract, an employer shall provide the helper with free passage to his/ her place of origin on termination of the contract.
Following the Advanced Contract Renewal Arrangement, under which the Immigration Department does not require the FDHs to leave Hong Kong immediately after the termination of the contract and before the new employment contract takes effect, there are two scenarios for the employers to honour the above "free passage" contractual obligation :

1. New contract takes effect immediately: Where the employer and FDH renew the contract immediately after termination of the previous one, the FDH would not need to leave Hong Kong immediately, and as such, the employer would not need to provide free passage at this point of time. Under this circumstance, an FDH would be allowed to continue his/her stay in Hong Kong for not more than one year, and be issued with a visa with the same validity as his/her extended stay so that the FDH would leave Hong Kong within the permitted stay and then come back to complete their two-year contract. As such, the FDH would have chance to go home within the first year of the new contract. The employer shall then provide free passage for the FDH. This arrangement is in line with the established practice for FDH employment contract renewal cases.
2. New contract takes effect subsequently: Upon agreement of the employer and FDH, the FDH may leave Hong Kong immediately after the termination of the previous contract. The employer shall then provide the FDH with free passage. Under this circumstance, ImmD would issue a visa to the FDH so that he/ she can come back to Hong Kong to commence the new contract. Usually, the FDH would be allowed to stay for two years upon return to Hong Kong for completion of new employment contract.

The above arrangements are in line with the provisions of the employment contracts signed by employers and FDHs, i.e. the employer shall provide free passage to the FDH, though the actual timing would depend on the departure time of the FDH under the Advanced Contract Renewal Arrangement.

Q76:

Could the employer ask his/her FDH to work while waiting for the issue of the employment visa?

A76:

The Employees' Compensation Ordinance (Cap. 282) lays down the rights and obligations of employers and employees in respect of injuries or death caused by accidents arising out of and in the course of employment. The Ordinance also stipulates that no employer shall employ any employee in any employment unless there is in force in relation to such employee a policy of insurance to cover the employer's liabilities both under the Ordinance and at common law.
Insofar as the employment of FDHs is concerned, the employee's compensation insurance policy is valid only during the employment period (i.e. during the validity period of the employment visa of the FDHs concerned). Besides, unless there are other additional terms, these insurance policies would usually cover the injuries or death suffered by an employee arising out of and in the course of employment only. So, if the FDH has yet been granted a valid employment visa, the employer should not ask his/her FDH to work while waiting for the issue of the employment visa, or else he/she may commit an offence of employing a person who is not lawfully employable. If the FDH suffers injuries or death in the period, the employer may also have to shoulder the civil liabilities of making compensation in huge sum.

(ii)

Signing of written undertaking

Q77:

Why are employers who wish to have advanced contract renewal with their FDHs required to sign a written undertaking?

A77:

Some employers who wish to seek the suspension of levy as soon as possible may choose to terminate their existing contracts with their FDHs. When the levy suspension period is coming to an end, some employers may also choose to advance the renewal of employment contracts with their FDHs. To ensure that the entitlements of FDHs reckoned on the basis of their duration of employment will not be reduced due to the breaking of the continuity of their service in the event that the new contract fails to commence immediately after the termination of the existing contract, employers who wish to apply to the Immigration Department for advanced contract renewal has to sign a specified written undertaking to confirm the termination of the existing contract and the effective date of termination, and to commit on the continuity of employment relationship under the new and the old contracts. In so doing, FDHs will be assured that their existing and future entitlements under the Employment Ordinance and their employment contracts will not be affected by the advanced contract renewal.

Q78:

What additional liability will be placed on the employer after having signed the undertaking?

A78:

The sole purpose of signing the undertaking is to ensure that the years of service of the helper will not be affected or curtailed by the advanced contract renewal. After having signed the undertaking, the employer is not required to take up extra responsibilities apart from those stipulated under the Employment Ordinance and the helper's employment contract.

Q79:

What does "the existing and future entitlements" under the Employment Ordinance refer to?

A79:

"The existing and future entitlements" under the Employment Ordinance refer to an employee's statutory entitlements under the said Ordinance. It includes employment benefits linked to an employee's years of service under a continuous contract such as long service payment, severance payment, paid annual leave and paid sick leave etc.

Q80:

Who can use the new arrangement?

A80:

Foreign domestic helpers applicants applying for an extension of stay under the sponsorship of the same employer, including contract renewal and completion of the remaining period of the current contract, may use the new arrangements.

Q81:

Why is it necessary to introduce the new procedure?

A81:

The new arrangements are part of ImmD's continuous effort to streamline workflow and enhance efficiency through business process re-engineering. Under the new arrangement, eligible applications may be submitted by drop-in/post-in/online submission. Applicants are no longer required to wait at our offices during processing of the applications. In general, applicant or authorised person is only required to show up upon visa collection that will help save his/her time.

Q82:

When can I submit my application under the new arrangement?

A82:

The new arrangement will be implemented from 12 July 2010 (Monday).

Q83:

Where can I submit the application?

A83:

You can submit your application by placing them in the drop-in boxes located at Foreign Domestic Helpers Section, 3/F, Immigration Tower, Wan Chai, Hong Kong or send your application by post to the Foreign Domestic Helpers Section or by online submission via GovHK website (www.gov.hk/esapplication).

Q84:

What kind of supporting documents are required?

A84:

Note:
* For the applications submitted online, the original employment contract (notarised, if so required by the local consulate) should also be submitted for inspection upon collection of the extension label.
** Proof of employer's financial position and residential address is not required (provided that the employer's average household income remains no less than HK$15,000 (for each domestic helper to be employed) and there is no change in the residential address). Nevertheless, further supporting documents may be required in individual cases.

Q85:

What are the benefits of the new arrangement?

A85:

With the new arrangement, the overall queuing time of the applicants will be reduced because applicants are not required to attend to our offices in person upon submission of their applications and they are not required to wait at our office during processing of the applications. Upon receipt of the collection letter, they could approach Foreign Domestic Helpers Section to collect their visa.

Q86:

What is the procedure after submission? How long would the processing take?

A86:

Under the new arrangement, the application would normally be finalized within 10 working days upon receipt of all necessary documents, and a collection letter will be sent to the applicants. Applicants shall approach Foreign Domestic Helpers Section to collect their extension label.

Q87:

Other than the extension of stay with same employer application, would other types of application be submitted by drop-in, post-in or online submission?

A87:

The new arrangement is not applicable to other applications relating to Foreign Domestic Helpers, namely, change of employer and entry visa applications. They should be submitted via existing channels. The new arrangement is not applicable to Immigration Branch Offices.

Q88:

If I wish to check application progress?

A88:

Applications will normally be finalized within ten working days upon receipt of all necessary documents, and there is no need to make progress check during the period. Should there be any urgent need for enquiries, applicants may phone Immigration Department at 2824 6111, fax to 2877 7711 or email to [email protected].

Q89:

Could the employer ask his/her helper to work while waiting for the issue of the employment visa?

A89:

If the helper's limit of stay is not expired, he/she could continue to work until the issuance of new employment visa. However, if the helper's limit of stay is expired, the employer should not ask his/her helper to work while waiting for the issue of the visa. Applicants should submit applications early enough and employers should remind their foreign domestic helpers in such circumstances to apply early enough.

Q90:

When and where can I collect my visa endorsement?

A90:

After receiving the collection letter, you should bring along the helper's travel document and the collection letter (and authorisation letter, if applicable) to collect the extension label at the Foreign Domestic Helpers Section after payment of visa fee. For applications submitted online, the original employment contract (notarized, if so required by the local consulate) should also be submitted for inspection upon collection of the extension label.

Q91:

Do I need to make a booking before approaching Immigration Department to collect the visa endorsement?

A91:

No, prior appointment booking to collect extension labels is not required. The collection procedures are very simple; including the extension fee of $160 and the extension labels will be printed and collected immediately.

Q92:

If I change my mind after submission of application that I don't want to extend the visa with my foreign domestic helpers for one reason or the other, what shall I do?

A92:

You should submit a withdrawal letter immediately to the Foreign Domestic Helpers Section, Immigration Department stating the reasons and the details of your application, such as date of submission, personal particulars of the foreign domestic helper / employer for our follow up action. The mailing address is Foreign Domestics Helper Section, Immigration Department, 3/F Immigration Tower, 7 Gloucester Road, Wan Chai, Hong Kong. The fax number is (852) 3170 5696.