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.

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.

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
  

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.

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.

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.

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 9.

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.

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?

Some statutory entitlements under the Employment Ordinance is 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 by 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.

Example:

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 actual 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.

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.

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.

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.labour.gov.hk) and Telephone Enquiry Service (2717 1771).