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Annual Leave

23 July 2019

By Cynthia Tellez

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.

Some people never run out of tricks to exploit the vulnerability of their domestic worker.

It is school break now in Hong Kong. Most of the families have already planned on how and where to spend their vacation way ahead of time. Some of them will spend it outside of Hong Kong.  But they are worrying on who will take care of their homes while they are away. This is so especially for those who planned to be out of town for longer period.  This is the usual situation that many domestic workers approach the Mission to seek its opinion for.

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One example is when the employer’s family decided to go on a vacation for more than one month. The domestic worker was asked to stay home to take care of the house while they were away. But the employer wanted the period of their vacation charged to the domestic worker’s annual leave, plus the statutory holiday/s that may fall within the period, and rest day/s of the domestic worker. This would have meant the domestic worker spending her or his annual leave and statutory holiday/s, as well as her rest day/s even while she remained in Hong Kong, looking after the employer’s house.

This is a tricky situation. Let us disentangle the interwoven issues here, for us to understand and make an opinion based on what the Labour Ordinance says in relation to the issues.

1. The underlying assumption on annual leave, statutory holiday and rest day is that the worker will spend it away from the workplace. Usually, it in the domestic worker’s home country, or at times, a place agreed upon with their employer, as long as it is outside of the workplace. The home of the employer is obviously her workplace. So, once the domestic worker is required to stay to take care of the house, technically speaking, she or he is not on a vacation! She is not, because taking care of the house is part of the work and practically, the domestic worker is working. She should be paid regardless of the load of the work because that is what is in the contract they both signed.

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2. Annual leave is a continuous leave from work that the domestic worker earns once she reaches three months or more of a continuous work. A specific number of days are set by the Employment Ordinance upon reaching the first year of the two-year contract.  The worker is entitled to 14 days for the first and second year of the contract and one additional day for each succeeding years at a maximum of 14 days per year.

3. Another matter is the statutory holiday. As per the employment contract, this is a fixed date for a holiday, for a total of 12 days each year. Without the consent of the domestic worker, the employer cannot just at will, exchange it for another day. Say, lump it all together to suit to the period of their vacation.  This cannot be forced on the worker. It should be with the consent of the worker. Consent here means that the worker also agrees; and to reiterate, the worker should not be required to work. Otherwise, it cannot be regarded as a holiday.

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4. It is the same with the rest day. It should be a day within a week for continuous 24-hour off. The employer cannot just cancel any future rest day just because they are not around. Neither can they substitute their absence at home for the worker’s rest day. Taking care of the house is still work. The rest day that you are given during the period of your vacation is a normal rest day, meaning you should not be working at all.

5. But the situation changes when both employer and domestic worker enter into an agreement in relation to the vacation. If, upon the request of the domestic worker, the employer agreed that the annual leave, statutory holiday (assuming that the statutory holiday falls within the period of the vacation) and the rest day will be enjoyed by the domestic worker in Hong Kong and that the house of the employer is just a place to sleep, then the employer is right: that the payment for the period of the vacation are payments for the three leaves. But the assumption here is that the domestic worker shall not be required by the employer to do any work in the house. It is a different matter of course if out of goodwill the domestic worker voluntarily does some household chores not required by her employer.

You may find other situation that may be as tricky. What is important is that if a domestic worker is uncertain, inquire. Ask questions.  There is the Labour Department. If you are not comfortable with them, go to service providers for migrant workers like the Mission for Migrant Workers. As a domestic worker you should clarify the situation you may be in, based on the matters discussed above. It must be remembered that it is just right for you to exercise your rights, and, in a sense, to correct a wrong practice that you are forced into, because it violates your contract and the law.

There are many complicated matters that domestic workers sometimes find themselves confronted with. The personal becomes official. Their resting place is practically their workplace. I would suggest that you pay us a visit at the Mission For Migrant Workers to seek assistance in clarifying matters that confuse you. The Mission is at St. John’s Cathedral on Garden Road, being one of its outreach ministries.  You may simply drop in during office hours, Sunday to Friday, or call 2522 8264.
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