Recently, some domestic workers came to the Mission to seek assistance, while others were there to refer friends who needed help.
While waiting for their turn, they shared stories about work experiences, including delays in their salary, many for more than a week, others for almost two months. This caught our attention and so we joined the conversation.
One said that her salary for this month, for example, was supposed to be for two months earlier. The reasons given by her employer was that she either forgot or simply had no time to go to the bank. Another worker had it worse, because her employer said he was experiencing financial difficulties so she decided to just wait.
Their fellow migrants regarded this as ‘better than having no work at all’. But then, they kept on saying that their families back home were of course affected by the delay in their salaries, with one complaining that they cannot just give promissory notes to the school for late payment of tuition fees.
Usually, domestic workers regard the matter of delayed salary as a non-issue and dismiss it as if nothing happened. But delayed wages, being part of the Employment Ordinance, is a serious omission on the part of the employer. This act falls under the protection of wages and is prohibited like illegal deductions.
Let us quote from the HK Labour Department’s “A Concise Guide to the Employment Ordinance”, on Payment of Wages:
‘Wages shall become due on the expiry of the last day of the wage period. An employer should pay wages to an employee as soon as practicable but in any case not later than seven days after the end of the wage period. An employer is required to pay interest on the outstanding amount of wages to the employee if he fails to pay wages to the employee within seven days when it becomes due.’
Offences and Penalties
‘An employer who willfully and without reasonable excuse fails to pay wages to an employee when it becomes due is liable to prosecution and, upon conviction, to a fine of HK$350,000 and to imprisonment for three years.’
‘An employer who willfully and without reasonable excuse fails to pay interest on the outstanding amount of wages to the employee is liable to prosecution and, upon conviction, to a fine of $10,000.’
In the above excerpts from the said Guide, it is clear that delayed salary is an offence under the Employment Ordinance.
But because this is a serious offence by your employer, you need to present concrete proofs.
Following are some tips to guide you in case similar things happen and termination of contract is unavoidable.
One, it would be best to open a bank account and ask your employer to deposit your salary into the said account. The deposit is either printed in your bank book (you can regularly update it), or your employer must give you a bank receipt stating the amount deposited. The important thing is that a date is always printed on any of these. This will show the regularity on when your salary is given.
Two, if you are paid by cash or cheque, you can make a prepared receipt stating the amount of the salary and the date it is given. You can use any clean sheet of paper to do this. Here is a sample receipt, say your contract started when you arrived on 3rd September 2018:
“THIS SERVES AS A RECEIPT FOR PAYMENT OF WAGES
Received the amount of FOUR THOUSAND FOUR HUNDRED AND TEN ONLY (HK$4,410 .00) in cash, as payment for my salary for 03 September - 02 October 2018. Under DH Contract No_______________.
Signature: ___________________________________
Name in block letters: __________________________
Date ___________________________
You can prepare this type of receipt every time your salary is given to you. Make several copies of this, leaving the amount and inclusive dates blank so that you will not waste time in writing the whole thing every time the salary is given.
For payments made by cheque:
“THIS SERVES AS A RECEIPT FOR PAYMENT OF WAGES
Received the amount of FOUR THOUSAND FOUR HUNDRED AND TEN ONLY (HK$4,410 .00) in cheque:
Cheque No.___________,
Date Issued___________, as payment for my salary for 03 September - 02 October 2018. Under DH Contract No:_______________.
Signature: ________________________________
Name (in block letters): ________________________
Date : _______________________________________ Take a photo of the cheque before depositing, if possible.
I am sure there are other means on how you can gather proof to substantiate your complaint against delayed salary payment. Just be sure to keep these pieces of evidence in a safe place.
Three, always keep a diary stating what happened during your supposed pay day and onwards.
Four, for the more serious cases of delayed payment of wages, you can file a complaint against your employer at the Labour Department. You may consult service providers like the Mission for help in doing this. After calling the attention of your employer to the repeated delays, you can file claims for your unpaid wages plus wage in lieu of notice because by not paying you within the prescribed period, your employer is deemed to have terminated your contract. Further, your employer is liable for committing an offence under the law.
Together with your claim, do not forget to mention to the Labour Officer to compute your delayed salary plus interest for the whole period of delay. The interest imposed is in the Labour Ordinance and in fact a separate case against your employer.
Just remember that there is no less important or more important offence or case as far as the law is concerned. The law is law and every violation will be meted with corresponding penalties.
If you have any further questions, or would like to ask for clarifications, please do not hesitate to call the Mission at 2522-8264.
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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. 2522 8264.
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