Legal update: Hiring Foreign Domestic Helpers in Hong Kong: Pitfalls and Misconceptions13Nov2015
In Hong Kong when most people mention “helpers” they actually mean a “Foreign Domestic Helper” (“FDH”) employed from overseas via a recruitment agency or directly via an advertisement or referrals.
In order to employ a FDH and obtain a work visa for that employment, the employer must enter into a special type of contract inclusive of (1) a Standard Employment Contract (ID 407), as specified by the Director of Immigration and (2) a visa application to the Immigration Department, the form of which contains various undertakings by the employer. The Standard Employment Contract between the employer and the FDH must be submitted and it and its contents are integral parts of the application.
When applying to hire a FDH, it is important for the employer to be familiar with the content and legal effect of the documents being submitted, the visa restrictions of an FDH visa and their legal responsibilities.
Where those responsibilities are breached, not only will the FDH face possible revocation of visa and prosecution, there may also be heavy criminal penalties for the employers. If the employer has:
- assisted or permitted the FDH’s breach of the conditions of stay, attached to their visa or
- made false statements or representations to the Immigration department in seeking the FDH’s visa,
Then they may be guilty of serious criminal offences under sections 41 and/or 42 Immigration Ordinance rendering them liable to prosecution and, upon conviction, to fines and imprisonment.
Below we highlight some of the most common misconceptions and dangers for employers:
1: “I am uncomfortable with sharing my apartment with a helper, I will just hire a helper but then arrange for them to “live out” at a nearby boarding house.”
However in making the application:
- Clause 3 of the Standard Employment Contract states that “the Helper should work and reside in the employer’s residence as stated in the contract”. It also requires the employer to list details of that accommodation within the employer’s residence.
- The undertakings in the visa application include that “The Helper will reside only in the residence as stated in clause 3 of the above mentioned employment contract” (only those continuously employed and living out from before 1 April 2003 are exempted).
- That requirement, as part of the contract, will be one of the FDH’s visa conditions of stay.
Therefore the employer and FDH are making a statement or representation that the FDH will be residing within the employer’s residence and that is a condition of the visa. Contrary to popular belief, it is therefore illegal to employ a FDH and make arrangements for the FDH to “live-out” either at a nearby boarding house or at a friend or family member’s residence (unless the FDH has been continuously employed by you and has lived out since before 1 April 2003).
By doing so, you would also have given false information to the Immigration Department for the purposes of obtaining the visa. This is an offence under section 42 of the Immigration Ordinance and an offender is liable to a maximum fine of HK$150,000 and imprisonment for 14 years.
In Hong Kong it is likely that an employer found guilty of this offence would receive an immediate and potentially lengthy prison sentence, notwithstanding a clear record.
2: “I work full-time and I do not have any children to look after, I will just “sponsor” an FDH, but only hire her part-time.”
It is an offence under the Immigration Ordinance for an FDH to take up employment with any person other than the employer named in his/her visa.
Clause 4(b) of the Standard Employment Contract states that an FDH is permitted to work only with the contractual employer. This clause also forms part of the conditions of stay imposed on the FDH.
One of the undertakings of the employer in the visa or “sponsor” application form is “I will not ask, cause or allow the Helper to take up any other employment with any other person during his/her stay in [Hong Kong] and within the contractual period specified in [the contract]”.
By hiring a part-time FDH, allowing your FDH to work part-time for another person, you may:
- Have potentially made a false statement or representation in applying for the visa;
- Be aiding, abetting, counselling and procuring an FDH to breach a condition of stay;
- Be aiding, abetting, counselling and procuring the FDH to take up employment with another person in breach of the Immigration Ordinance; and
- Be employing someone who is not lawfully employable.
This will render the FDH and/or you liable to criminal prosecution and if found guilty to maximum fines of $50,000, $150,000 or $350,000 and imprisonment for a maximum of 2, 3 or 14 years (depending upon the offence).
3: “I don’t need a full time helper. I will just ask one of the helper’s in my block, or my friend’s helper to do a few hours on Tuesdays and Fridays.”
If the part time helper is a FDH, then by hiring her on a part time basis when you are not her contractual employer under a Standard Employment Contract and her visa may cause you and the FDH to be guilty of many of the same offences listed above including:
- aiding, abetting, counselling and procuring an FDH to breach a condition of stay;
- aiding, abetting, counselling and procuring the FDH to take up employment with another person in breach of the Immigration Ordinance; and
- employing someone who is not lawfully employable.
4: “I want to hire an FDH to look after my parents at their home but my parents do not have adequate assets.”
You cannot enter into a contract where the address specified on the contract is not your address. In general if there is a genuine need, the Immigration Department may accept a financial proof provided by the employer’s family member in support of the application for employing an FDH made by an elderly person.
In some situations, one may apply to the Immigration Department for special approval to employ a FDH for his or her parents and for the FDH to reside at the parents’ home. Under this arrangement, the child would be the FDH’s contractual employer but he or she would be living and working at the parents’ residence, with approval of the Immigration Department. This may be possible where the child can provide justifiable reasons why this is necessary, for example, because of the parents’ ill health, and relevant supporting documents are provided. Each case will be decided on its own merits. The key issue is to be open and honest and to provide detailed explanations when making the application.
5: “I know it is technically not allowed, but it is not a big deal, and I won’t get caught anyway.”
It is a big deal and people are frequently caught. The Immigration Department actively enforces these laws and requirements. Many instances come to light (often much later) including after reports from enemies, neighbours, former spouses, in the context of employment claims by FDHs or from security guards seeking a cash reward from the Immigration Department. Many people go to prison every year for the above offences and situations.
What CAN I do?
Unlike FDHs, local domestic helpers do not require visas and are not subject to the above restrictions. Therefore, if you find yourself in one of the above situations, you can consider hiring a local domestic helper. You can do this in many ways, including via the “Smart Living” online system run by the Employee’s Retraining Board (ERB) and Labour Department Local Domestic Helper Recruitment Hotline (2503 3377).
All employers should also remember that FDHs are all entitled to and receive the full protection of Hong Kong law including the Employment Ordinance and the discrimination ordinances (covering Race, Disability, Sex, Pregnancy and Family Status). As such, FDH’s are entitled to, amongst other things, paid rest days, statutory holidays, annual leave, sick leave and maternity leave. Employers are prohibited from terminating an FDH by reason of her pregnancy. Failure to honour the obligations under the Employment Ordinance can also be a criminal offence. For more information, see also our article Working Mothers: Maternity Rights under Hong Kong Law.
Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.