By Daisy CL Mandap
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| FDWs cannot demand payment for their unused annual leave or air fare |
The pandemic has created many grey areas in the working
conditions of foreign domestic workers in
As a result, many support organizations like the Domestic Workers Corner are being flooded with questions on what FDWs can rightfully demand as entitlements from their employers at the end of each contract.
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In particular, says DWC founder Rodelia Villar, the workers want to know if they can demand payment for all their unspent vacation leave, and whether they should also be paid the return air fare to the Philippines, even if going home is out of the question now.
The answer given her by the Hong Kong Labour Department through email was clear: The worker cannot demand payment in lieu of spending her annual leave, but “may choose to accept payment in lieu of the part of his/her leave entitlement which exceeds 10 days.”
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This means that no payment shall be paid for the first 10 days of the annual leave. If the worker was unable to go home for two years, for example, she can only agree to be paid for 4 days of her 14-day leave entitlement.
Implicit in this is that should the
employer choose not to pay for any of the worker’s annual leave days, then the helper
cannot insist on being paid. But she can ask to spend the entire period of her unused annual leave in the
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As for the return air ticket, the Labour officer who responded to Villar effectively said this could not be converted to cash because the requirement that the worker should go on home leave at the end of each contract is “just deferred, not removed.”
A reference was made to clause 13 of the Standard Employment Contract (SEC) which provides for the end-of-contract exit by the FDW for no less than seven days, at the expense of the employer, unless the Director of Immigration allows an extension of stay, or a "deferment" of the worker having to go back home.
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Because most home leaves now have just been deferred, the worker cannot demand cash payment equivalent to the cost
of an air ticket, because
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| Villar says DWC gets about 10 inquiries per day on the issue |
According to Villar, she decided to ask clarifications directly from the Labour Department because even the employers seem to be in disagreement on what the FDW in their employ is entitled to.
“May employer na generous, nagbibigay ng ticket at cash para sa annual leave. May employer na annual leave lang ang gustong bayaran. May employer din na ayaw magbigay hanggang sa end ng contract at kailangang bumaba na ang worker,” said Villar. (Some generous pay for both the ticket and the unused annual leave. Others only want to pay for the annual leave. But there are also some who don’t want to pay at all unless the contract is not renewed and the worker has to leave.”
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Villar said that one worker whose employer refused to pay for the air ticket or her unused annual leave sought advice on what she should do after they argued. “In the end she had to apologize to her employer after I advised her that she could not compel payment,” said Villar.
In the email sent to her by a Labour officer, Villar was reminded that the basic rights and responsibilities of FDWs are specified in their contracts. In addition, they can refer to the Employment Ordinance which applies to employers and FDWs alike.
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The email listed the number of annual leave entitlements of FDWs which are 7 days each for the first two years, gradually increasing by one day each year, until it reaches the maximum of 14 days by the ninth year of employment.
The relevant provisions of the EO cited include one that says that an employee may take the paid annual leave within 12 months, but the timing should be set by the employer after consulting with the worker, confirmed by a written notice at least 14 days in advance.
“For harmonious labour relations, employer and employee are encouraged to communicate with each other to come up with a mutually acceptable arrangement,” said the emailed response.
All questions arising from the employment contract of the FDW should be resolved by referring to the EO and the contract, said the email. In case of dispute, the final decision rests with the courts.
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