Ah-May, an Indonesian, has come to Hong Kong to work as a foreign domestic helper for Mrs Ho. She is responsible for doing the housework and looking after her employer's children, aged three and six respectively. Mrs Ho is a marketing manager of a trading firm. Her husband is an executive director of a technical consultancy firm and is always required to work on the Mainland.
Ah-May works from Monday to Saturday and has her rest day on Sunday when Mrs Ho also has her own day-off. One Thursday night, Mrs Ho had a heated argument with Ah-May.
"Mr Ho is very busy during all these days and he will be away from Hong Kong for six months." said Mrs Ho. "I have some big projects on hand. I have to work on Sundays in the coming months. Please take care of my kids on Sundays! I'll pay you extra for that."
"Sorry, Ma'm. I would like to meet my sisters on Sundays. But I can come back at 5 o'clock to take care of the children," said Ah-May.
"You are very inconsiderate! You should obey my order! I cannot leave my kids alone at home!" shouted Mrs Ho angrily.
Could Mrs Ho forbid her foreign domestic helper to have a rest day? Could Ah-May refuse her employer's request?
Under the Employment Ordinance, an employee employed under a continuous contract is entitled to not less than one rest day in every period of seven days.
- An employer must not compel an employee to work on a rest day except in the event of a breakdown of machinery or plant or in any other unforeseen emergency. For any rest day on which the employee is required to work, the employer should substitute another rest day within 30 days. The employer should notify the employee of the substitute rest day and related arrangements within 48 hours after the employee is required to work. If there is no substitute rest day, the employer should pay overtime pay to the employee.
- Moreover, an employer cannot grant an employee a rest day less than 24 hours because it is stipulated in the Employment Ordinance that a rest day means a continuous period of not less than 24 hours during which an employee is entitled to abstain from working for his/her employer.
- An employer who fails to grant rest days to his/her employees or compels his/her employees to work on their rest days is liable to prosecution and, upon conviction, to a fine of $50,000.
Hence, Ah-May is free to choose whether to work for her employer on her rest days. If Ah-May agrees to work on any rest day, Mrs Ho should pay overtime pay to her or substitute another rest day for Ah-May within 30 days after the original rest day. If Ah-May is not willing to work on a rest day, Mrs Ho has to make other arrangements, such as hiring a local part-time domestic helper, to take care of her children on that Sunday.
The above case only serves as an illustration of the provisions of the Employment Ordinance on rest days. The Employment Ordinance, however, remains the sole authority for the provisions explained above and in case of dispute, the final decision rests with the court.
|Q & A on rest days|
|Q1 ||What kinds of leave are foreign domestic helpers entitled to under the Employment Ordinance?|
|A1 ||- Under the Employment Ordinance, foreign domestic helpers are entitled to the following leave: |
(a) Rest days
(b) Statutory holidays
(c) Paid annual leave
- If both parties enter into a re-engagement contract, the helper shall, before the new contract commences, return to his/her country of origin at the expense of the employer for a vacation of not less than seven days according to the standard employment contract.
- Leave pay, and whether leave has been granted is a common cause of dispute between an employer and a helper. Leave and payment records should be kept properly to avoid future disputes.
|Q2 ||How should I appoint rest days to my helper?|
|A2 ||- You should provide your helper at least one rest day in every period of seven days. A rest day is a continuous period of not less than 24 hours. |
- Rest days shall be appointed by you and may be granted on a regular or an irregular basis. Unless the rest days are on a regular basis, you should notify the helper of his/her rest days before the beginning of each month.
|Q3 ||Can I ask my helper to perform duties after he/she returns home on his/ her rest day?|
|A3 ||You should not compel your helper to perform duties on his/her rest days. However, he/she may work voluntarily on his/her rest days. |
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Source : Labour Department