This article aims to clarify a couple of things that domestic workers are usually misinformed of, or about which they don’t get complete information.
The Mission for Migrant Workers usually gets inquiries on: the date on which the contract takes effect, the probationary period, statutory holidays, and computation of daily wage.
Most of the complainants we receive in our office are new arrivals in Hong Kong or are in their first six months of the contract. Thus, they do not know other persons in Hong Kong other than the placement agency representatives so we hope to reach those in similar condition through this article.
Start of contract
The contract depends on your visa. The contract says that it takes effect upon your arrival. It is in Clause 2. a. which says “The Helper shall be employed by the Employer as a domestic helper for a period of two years commencing on the date on which the helper arrives in Hong Kong”.The usual (mis)understanding or what the agency representatives (AR) make you believe if you are the worker, is that your contract starts when you arrive in your employer’s house or the address in your contract as your workplace and abode. In many cases, the AR takes you to the Immigration Department to apply for a Hong Kong Identity Card first; or sometimes takes you to undergo medical examination if the employer requires it, and unfortunately, in some other cases, you are also made to sign a loan agreement for agency fees.
The days you spend doing all these should neither be reckoned as your day-off nor removed from your working days in the contract because “you haven’t started”. These or any other official activities imposed on you by the agency are already part of your working days in the contract. Even if the employer happens to be away for holiday or for whatever reasons, those days are already part of the employer’s responsibility to you. It is not the day when you enter the employer’s house that the contract starts, it is when you took the plane that brought you to Hong Kong. That is precisely why the “travelling allowance” covers that travel from your place of origin to Hong Kong in the shortest manner.
“Probationary period” and statutory holidays
There is no such thing as probationary period.You are a foreign worker, treated as an alien, with no permanent domicile in Hong Kong and with a visa that allows you to work at a specific household address during a specific period of time. You cannot be left uncertain upon arrival.
This goes, too, for the misconception that many placement agencies make you and your employer believe: that you are not qualified for statutory holidays in the first three months of the contract. They confuse the provision in the Employment Ordinance of Hong Kong that says that a worker can only avail of a paid holiday after three months of continuous work. This provision only refers to the unspent holiday that cannot be paid with money, but it does not mean you are not allowed to go out on a statutory holiday. You can go out , even when your first day at work or your day of arrival, happens to be a statutory holiday.
The ordinance says that if the employer cannot give you the holiday on the specified statutory date, alternative day or another day should be assigned within the next 60 days. What you cannot do is to exchange that holiday for cash. Neither can your employer deduct your salary for the days that you took the day off because they were statutory holidays, within the first three months of your contract.
Those who were forced to not take statutory holidays that fell in the first three months of the contract can claim these when the contract ends prematurely or upon completion.
Upon completion or premature termination of contracts, annual Leave pay can also be claimed as these are earned while you work continuously with the same employer. A domestic worker who works continuously for three months qualifies for the statutory annual leave of seven days for the first two years. If the contract is prematurely terminated after three months, one can get what you call a pro-rata pay for the annual leave earned.
For example, if you are in your sixth month and your contract was terminated: you can get the equivalent number of days with this formula: 6/12 months = .5 which means you finished only “.5” of the year. Multiply this by seven days (.5 x 7 days). The annual leave for that year equals 3.5 days. This means you have 3.5 days earned as your annual leave.
Please be aware that when annual leaves are taken before the end of the contract, the days off that are included in the inclusive period should be computed separately. The same is true if some statutory holidays were used during the vacation period.
Daily wage
We are aware that computing the daily wage is another point of argument. In many cases, the days when the statutory holiday (or any holidays, leaves, days-off for that matter) is computed, the monthly salary is simply divided into the number of days in that particular month. If you do that, if the salary is divided into 30 or 28 days, you win and your employer loses. But if it falls on a month with 31 days, you lose. So being a monthly wage earner, the computation should be to take the average daily wage by getting the whole year’s salary. For example: HK$4,210 x 12 months = HK$50,520 for the whole year. Then divide the total by 365 days which is the number of days in a year: HK$50,520 / 365days = HK$138.40. This is your average daily salary.If these computations still look confusing, you may contact the Mission for Migrant Workers at 2522-8264.
But lest you forget, these are your rights and to be able to decide wisely, you should know your rights.
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This is the monthly column from the Mission for Migrant Workers, an institution that has been serving the needs of migrant workers in Hong Kong for over 31 years. The Mission, headed by its general manager, Cynthia Tellez, assists migrant workers who are in distress, and focuses its efforts on crisis intervention and prevention through migrant empowerment. Mission has its offices at St John’s Cathedral on Garden Road, Central, and may be reached through tel. no. 2522 8264.
