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Rest Days, Statutory Holidays, Paid Annual Leave and Other Leave

Rest Days, Statutory Holidays, Paid Annual Leave and Other Leave

Rest Days, Statutory Holidays, Paid Annual Leave and Other Leave

1. According to the Employment Ordinance, what holidays are foreign domestic helpers entitled to?

a. According to the Employment Ordinance, foreign domestic helpers are entitled to the following holidays:

● Rest days

● Statutory holidays

● Paid annual leave

b. According to the Standard Employment Contract, upon contract renewal, the helper must return to her place of origin for not less than 7 days paid/unpaid home leave before the new contract takes effect, unless an extension of stay is granted by the Director of Immigration in advance. The home leave expenses are to be borne by the employer. 

c. Employers should properly maintain records of holidays and wages to avoid disputes.

2. How long must a domestic helper work before being eligible for statutory holidays?

a. All foreign domestic helpers, regardless of length of service, are eligible for the following statutory holidays:

● 1st January

● First day of Chinese New Year

● Second day of Chinese New Year

● Third day of Chinese New Year

● Ching Ming Festival

● Labour Day (1st May)

● Buddha’s Birthday (starting from 2022)

● Tuen Ng Festival

● Hong Kong SAR Establishment Day (1 July)

● Day following the Chinese Mid-Autumn Festival

● Chung Yeung Festival

● National Day (1 October)

● Winter Solstice or Christmas Day (at the employer’s discretion)

b. Helpers who have been employed continuously for at least 3 months immediately before the statutory holiday are entitled to holiday pay.

c. Starting from 2024, statutory holidays will be further increased progressively to 17 days.

3. How many days of annual leave must an employer grant a helper each year?

A helper is entitled to paid annual leave after having been employed under a continuous contract for every 12 months. The number of annual leave days increases from 7 days to a maximum of 14 days according to the helper’s length of service, as follows:

For example, after completing 4 years of service in the 2nd 2-year contract term, the helper is entitled to 9 days of annual leave.

4. Who decides when the helper takes annual leave?

After being employed continuously for 12 months, the helper must take the paid annual leave he/she is entitled to within the next 12 months. The annual leave dates should be agreed between the employer and helper. The employer must notify the helper in writing of the dates of annual leave at least 14 days before the commencement of the leave.

5. Do rest days and statutory holidays fall within annual leave?

No. If a rest day or statutory holiday falls during annual leave, it is counted as annual leave. The employer should designate another rest day or statutory holiday for the helper.

6. Do rest days and statutory holidays fall within annual leave?

According to Clause 13 of the Standard Employment Contract, if the employer and helper agree to renew the contract upon its expiry, the helper must return to her place of origin for not less than 7 days’ home leave before commencement of the new contract. Whether the home leave is paid or not depends on the conditions agreed between both parties.

7. Can an employer force a helper to take unpaid leave when travelling overseas?

Unpaid leave must be mutually agreed by both employer and helper. An employer cannot unilaterally force a helper to take unpaid leave.

8. How should I designate rest days for my helper?

a. You must provide your helper with not less than 1 rest day in every period of 7 days. A rest day is a continuous period of not less than 24 hours.

b. Rest days are to be designated by you and can be fixed or non-fixed. For non-fixed rest days, you must notify your helper of the dates before the beginning of each month.

9. Can I ask my helper to work on rest days?

a. No, unless there is an unforeseeable emergency. An employer must not compel a helper to work on rest days. Forcing a helper to work on rest days contravenes the Employment Ordinance and is liable to prosecution with a maximum fine of HK$50,000 if convicted.

b. However, if agreed by the helper, you may substitute another rest day for the original rest day. The substituted rest day must be arranged within the same month before or within 30 days after the original rest day.

10. Can I ask my helper to work after returning home on a rest day?

You should not force your helper to work on rest days. However, a helper may volunteer to work on rest days.

11. Can I ask my helper to work on statutory holidays?

Yes. However, you must: 

a. Give your helper at least 48 hours’ advance notice;

b. Arrange an alternative holiday for your helper within 60 days before or after the original holiday.

12. If my helper agrees, can I pay extra wages instead of giving him/her a statutory holiday?

No. An employer must not pay wages in lieu of granting statutory holidays to helpers. An employer who fails to comply with the above without reasonable excuse is liable to prosecution and, upon conviction, to a maximum fine of HK$50,000.

13. If a statutory holiday falls on my helper’s rest day, do I have to provide a substitution holiday?

Yes. If a statutory holiday falls on your helper’s rest day, you should grant your helper a substitution holiday on the next day following the rest day. The substitution day must not be a statutory holiday or another rest day or substituted holiday.

14. How should I grant annual leave when the contract ends or is terminated?

a. When the employment contract terminates, you must pay the helper wages in lieu of annual leave entitlement for every 12 months of service that has not been taken. Also, within each leave year (i.e. each 12-month period after commencement of employment), if the helper has been employed continuously for 3 months but less than 12 months, except in cases of summary dismissal due to serious misconduct, he/she is entitled to pro rata annual leave pay. 

b. For example: If the helper resigns or is dismissed after working for 18 months without taking any annual leave, the employer must pay wages in lieu of the annual leave entitlement for the first 12 months of employment (i.e. 7 days) plus pro rata annual leave pay for the remaining period (i.e. 7 days + 3.5 days = 10.5 days’ wages).

c. However, if the helper is summarily dismissed for serious misconduct after working for 18 months, he/she is only entitled to payment in lieu of annual leave accrued during the first 12 months of employment (i.e. 7 days’ wages).