Can I “buy” the paid holiday from the foreign domestic helpers?
According to the Employment Ordinance, foreign domestic helpers(FDHs) are entitled to rest days, statutory holidays, and paid annual leave, among other benefits. Employers should discuss arrangements with their FDHs , such as whether rest days are fixed or flexible, as soon as possible after their arrival or even during the interview. Employers usually hire FDHs for tasks like housework, childcare, or elderly care. Sometimes, there may be a need for their services on the FDH’s rest day. Can employers request to compensate them with wages in lieu of the leave day, in addition to requesting leave changes? And, would such arrangements violate the Employment Ordinance or the employment contract?
Case 1: After the contract ends, can a foreign domestic helper opt for early return home to work by exchanging leave with salary?
According to Clause 13 of the Standard Employment Contract, if both the employer and the FDH decide to renew the contract, the foreign domestic helper is entitled to at least 7 days of paid leave before commencing the new contract, or the employer can allow the FDH to return to their home country during this period without pay, provided that both parties agree and the Immigration Department approves the extension of the FDH 's stay in Hong Kong, which typically does not exceed one year.
Case 2: Can monetary compensation be offered in place of paid annual leave for foreign domestic helpers who have worked for 12 consecutive months?
According to the Employment Ordinance, employees who have worked continuously for one employer for 12 months are entitled to paid annual leave within the subsequent 12 months. The number of leave days increases based on the length of service with the same employer, starting at 7 days and reaching a maximum of 14 days. FDHs are similarly protected by the Employment Ordinance, and employers are required to adhere to these regulations.
If, at the end of the FDH 's contract, they have worked for the same employer for 12 months without taking the required annual leave, the employer must compensate them with a proportionate payment based on their monthly salary as compensation for the unutilized leave.
For example, if a FDH began employment on March 1, 2018, and resigned or completed their contract on October 1, 2019 (without being terminated for serious misconduct), and they did not take any annual leave during that time, the employer must pay a salary in lieu of the 7 days of leave that the helper would have been entitled to due to 12 months of continuous employment, plus the proportionate calculation of the remaining annual leave (215days/365days x 7days = 4.12 days), totaling 11.12 days of annual leave pay.
Case 3: Can additional compensation be offered in lieu of working on statutory holidays or rest days for foreign domestic helpers?
According to the Employment Ordinance, employers are not allowed to replace statutory holidays with compensation, meaning they cannot "buy" any day off. Moreover, once a FDH has been employed for a continuous period of 3 months, they are entitled to paid leave regardless of whether statutory holidays have occurred during that period. If an employer requests a change in the FDH 's leave days, they must provide a minimum of 48 hours' notice and reschedule the leave within 60 days from the originally scheduled date, which is known as "Compensatory leave." In the case of consecutive statutory holidays, such as Christmas or the Lunar New Year, employers can arrange for the FDH to take make-up leave consecutively or on separate days.
Regarding rest days, with the FDH's consent, employers can reschedule rest days to replace the originally agreed-upon rest days, but this rescheduling must be done within one month. Employers cannot compel foreign domestic helpers to work on their rest days.
Many FDHs come to Hong Kong to work in search of better income opportunities, and some are willing to exchange leave for extra pay. Likewise, some employers are open to buying leave from their FDHs for financial reasons. However, the regulations are clear that exchanging leave for money is not allowed, employers are urged to take note of this.
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