Ignorantia legis neminem excusat. That’s Latin for ‘ignorance of the law excuses no one.’
Despite government efforts to educate the public, specifically employers of domestic helpers about their responsibilities, there are still abuses that take place. Whether ignorance or openly breaching the law, it’s anybody’s interpretation.
When foreign domestic workers violate the law — working at premises not described in their contracts, selling goods or doing paid service during days off or slapping young ward in public — it is likely they appear in the news or their photos go viral on social media. But when employers blatantly disobey the law, it might not get resolved even after the whole two-year employment contract comes to a close.
Here are the common violations of the law employers of domestic helpers commit towards them:
1. They require their helpers to do house work before they leave on their day off.
Wash the dishes, walk the dogs, do the laundry, cook breakfast. These are some of the duties helpers are bound to do before they leave the house on their days off. Their employment contracts stipulate that helpers must spend one day off for every seven days at work. Most domestic workers are considerate enough to care for their employers even to the point of sacrificing their own time. But some employers fail to acknowledge this, and doesn’t seem to care to return the favor. The helper who leaves late because of household chores is also imposed curfew hours as early as 7 or 8pm. This setup is probably arranged so that the helper still has enough time to put the messy home in order.
2. They fail to pay their helper’s wages on time.
Employers are required to settle the wages of their helpers within seven days of the cut-off time (based on starting date of employment). Many helpers are unable to ask for the salary employers owe them because of fears they might face retribution. When pressed for unpaid wages, some employers explain about delay in arrival of their salaries, they forgot about it, their ATMs did not work, they were too busy or too sick to address their responsibilities. It’s acceptable if they do it once, but more than that, it’s blatant disregard of rights of their helpers who need the money to fulfill their own set of responsibilities. We are still awaiting for news about an employer fined HK$350,000 or jailed for three years for such violation that’s quite a common complaint among domestic helpers.
3. They fail to pay for their helper’s baggage allowance along with their one-way return airfare.
The law stipulates that employers must shoulder the return flight of their helpers back home. But in a meeting with Philippine Consulate officials, representatives of Hong Kong’s Labour Department acknowledge the ambiguity of the Standard Employment Contract that baggage allowance should also be paid for by employers. Domestic helpers returning home might be bringing along with them several kilograms of goods in excess of standard luggage allowance.
4. They fail to provide adequate food, especially if helpers are not provided meal allowance.
Domestic workers are by default provided food by their employers so they don’t have to pay for their meals. After all, they live with their employers. However, there is a provision in the law that when employers choose not to include their helpers in their monthly food budget, they are required to pay them meal allowance (HK$1,037 per month starting October 2016). While many might not opt for the food allowance provisions, they also don’t provide adequate food for their helpers. There are cases when helpers are fed with traditional Chinese cuisine even when they are used to consuming rice back in their home countries. Other employers only offer leftover food from their young children, and don’t pay for helper’s food when taking orders during family outings with them.
5. They fail to provide decent living conditions.
Domestic helpers work hard during the day so just like anyone else, they deserve a well-deserved rest. However, some employers are inconsiderate and keep their helpers awake for long. For example, they require helpers to wait for them to return home, usually almost or past midnight, before allowing them to go to sleep. Others knock on the helper’s room asking them to peform tasks deep in the night. Others simply don’t provide a place for helpers with adequate privacy.
6. They fail to pay long service.
Long service is a form of gratuity payment paid to domestic workers who have served an employer over a period of not less than five years. That’s roughly three employment contracts under the same employer. The amount is computed based on the last monthly wage and number of years. Sadly, some eligible domestic helpers fail to receive this amount due to lack of awareness or employers flat out refuse to grant this amount. Helpers who encounter such experience often have limited amount of time — no thanks to the brief period the government allows helpers to settle outstanding issues once their contract expires — to chase employers before they are due to fly home.
7. They fail to reimburse helper expenses.
Employers are required to pay for expenses incurred by the domestic helper related to her employment such as insurance, medical examination, visa, consular fees and other relevant expenses. Some employers fail to pay back the expenses even if they are by law required to fully reimburse such expenses upon demand and provision of corresponding receipts or documentary evidence of payment.
They fail to grant sickness allowance.
Just like in a husband-wife relationship, domestic workers are often bound to work “in sickness and in health” while serving their employers. Perhaps not a lot are aware that domestic workers are entitled to sickness allowance. Employers must pay for medical consultation, maintenance in hospital and emergency dental treatment.
A domestic worker is entitled to two paid sick leave days every month for the first year of employment, and after that, four paid sick leave days every month. Paid sick leave days can be accumulated. If helper is sick and he or she presents an appropriate sick leave certificate, he/she should be allowed to take sick leaves.
Some employers fail to follow this, arguing that once helpers are sick, employers cannot take over vacated tasks and responsibilities.
8. They do not pay helpers the minimum allowable wage.
Employers and domestic workers may have signed the employment contract which appears in proper order. However, some employers attempt to make prior arrangement that they’ll pay their helpers less than what’s defined by law. While it’s up to the helpers to accept such terms, agreeing on some form of compromise, they allow employers to cheat on them, and make an opening for possible violations during their term of employment.
9. They require helpers to do non-domestic duties.
The law requires helpers to perform domestic work only, hence their name. But many employers ignore the rule and ask their helpers — who cannot say no — to tasks such as performing body massage, cleaning the car or acting as couriers of goods for an employer’s business. This might be on a case to case basis and helpers who understand employer situation don’t mind out of their kindness and goodwill. But should they think of refusing the task, helpers feel they might anger their employers.
Part of the problem is the ambiguity of the laws the government drafted for employers to comply. For example, under the Standard Employment Contract, helpers are required to work and reside in the employer’s home address. But it’s unclear if helpers deserve their own room, and if so, how decent are they. A survey conducted showed that 3 of 5 helpers are not provided adequate accommodation. Many of foreign domestic workers sleep on sofa, in the kitchen or even inside the bathroom. Others may have rooms but such accommodation lack privacy — they need to sleep beside their wards — or double as storage room, office space or laundry room.
So while employers violate the law and deny their helpers basic rights during their employment in Hong Kong, the government also failed in some aspects, notably in defining clear instructions for sponsors to comply with. Perhaps the government assumes that employers are of sound mind and think rationally so it provides them enough freedom, sadly to the detriment of many domestic workers.
In the end, as domestic helpers live with employers during their employment, there must be trust and bosses should look treat them fairly, maybe not to the level as family members, but as human beings who also deserve respect and feel proud and dignified of their jobs.