By Cynthia Tellez
Did you sign a side agreement with your employer apart from the employment contract? This happened to Lara who signed an agreement stating that she can only have one rest day a month. It got to a point when even that one-day-a-month-off became “irregular”, and the domestic worker ended up having no more rest day at all, or would just be given a day-off once in a while.
The same is true with the statutory holidays. Diana signed an extra agreement stating that she does not have any statutory holidays during the first three months of her contract.
These “agreements” are being used to threaten the workers that they will effectively be committing an offence once the “agreement” is violated.
In truth, it is used to make the domestic worker submit to the employer’s demands, which more often that not, already violate the employment contract.
Let me first say that the Variation Clause - Clause 15 in the Standard Employment Contract – should be a protection for domestic workers when cases such as those mentioned above happen.
But it can happen in an emergency situation. An employer who requests a worker to change her rest days or statutory holidays in an emergency situation is a totally different story. Remember that specific days for rest day or statutory holidays can be changed only with the consent of the domestic worker. Once agreed upon, the day/s should be changed within the specified period as stated in the Employment Ordinance. As for the rest day per week, request to change the day should either be made at the beginning of the week or, if in an emergency situation, that very day. Also, it should be replaced with another day the following week. So in effect, there will be a week wherein the domestic worker will be given 2 days of rest days, one regular and another day as replacement for the previously cancelled day-off.
With statutory holidays, replacement of the unspent statutory holiday should be specified within the next 60 days. The employer and employee/domestic worker should agree on when the date is, as a replacement to the statutory holiday.
Another common question refers to the experiences of newly-arrived migrant domestic workers. Ging, upon arrival in HK, was told by the agency staff that the employer wants her to start a month later. However, after a month, the employer does not want to give her salary for that month. Employer’s argument: No work, no pay. If you analyze that situation, the employment contract says that it will run for 2 years. The visa that is given by the Immigration Department is valid for 2 years, starting from the date of arrival. In Ging’s case, then, being the domestic worker, she will lose a month’s salary from the supposed potential earning of 24 months. Again, this is based on that 2-year contract signed by both of them. Remember that this contract is a legally-binding agreement. The employer cannot just change the duration and validity of the contract on a whim. The domestic worker is entitled to 24 months’ salary unless the contract was terminated in accordance with the contract provision (Clause 10).
Then there are those who are not paid while the employer is away. This brings us to the question of the meaning of “no work no pay” again. When Alice arrived in Hong Kong, the Immigration Department allowed her entry upon showing her contract and permit to enter Hong Kong. A visa was stamped/attached to her passport. So the whole procedure of processing the contract was completed. That means that the contract is already officially binding.
On the day of her arrival, however, she was brought to the employment agency office. Unlike Ging whose employer did not want her in yet, Alice was told that the employer is out of Hong Kong and will be back only after a month. A month later, the employer arrives but changes his mind about hiring Alice. When Alice filed a claim at the Labour Relations Division of the Labour Department, her employer refused to pay, arguing she never worked with her at all yet.
As mentioned above, the last thread to make the contract valid and legally binding is the issuance of working / domestic worker’s visa by the Immigration Department. With that completed, the worker can file a claim with the Labour Department for one month’s salary, another month’s pay in lieu of notice, traveling allowance, and the fare back to the place of origin. It can be argued that there is a proper way to terminate the work contract, and not following this results in a variation or violation of its terms. There are no ifs or buts in the termination clause. It is not a vague clause.
Going to the Variation Clause, Clause 15 of the contract covers the entire contract. All the provisions in the employment contract like salary, food allowance, statutory holiday, rest day, domestic duties, and Schedule of Accommodation cannot just be changed or amended without first getting the approval of the Commissioner for Labour. As for the conditions of stay, any alteration would need the approval of the Director of Immigration, such as: a) if the contract validity will be extended for a month; b) if there is a change in the address of the employer and the domestic worker will still continue to work there; and if c) driving duty is required of the worker.
So, even if there was a side agreement signed by both domestic worker and the employer, even if such agreement is notarized by a lawyer, it cannot be valid. It is invalid on two counts. One, it violates the employment contract, which in effect violates the Employment Ordinance (Labour Law of Hong Kong). Two, it does not have the approval of the Commissioner for Labour, who by the way, will never approve an unlawful agreement.
Only when these prescribed methods are followed can the employment contract be amended.
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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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