Posted by
kidstuff
16 yrs ago
We need extra space, and so are considering taking back the bedroom that our helper is using now when her contract finishes in a couple of months. I discussed with her about this, and she said her friends told her I can write a letter to immigration to request for her to live out. I have never heard of this being permitted. Has anyone had experience with it?
Second question: If a helper lives out (without notifying immigration), what is the penalty for both the helper and the employer if caught?
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There have been rare exceptions where a live out arrangement has been permitted by the immigration department. However in your case, since you have the bedroom, I don't think you would get the exception. Worth a shot of course.
If you get caught she will lose her visa, I think you can be fined, and you may be banned from employing a helper for a few years.
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Ed
16 yrs ago
This is more common than you think... the manager of our Helper section indicates that there are many helpers in jail for working part time. And she knows of a fair number of expats who have been hit with a similar fine as above.
All it takes is for your helper to have a dispute with someone who knows she works PT and a call to the right people...
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Thanks for all the replies.
Personally, I don't feel comfortable lying to immigration and have her live out, but my helper said people who work at her church (not just her friends) say it is ok, and have even offered to help her find accommodation. That's why I just wanted to clarify this in this community.
Perhaps someone should start educating the church groups!
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kidstuff, I think you are making the right decision. You'll see, having a live in is not bad at all. In fact, many people find it quite nice in some ways. If nothing else, there's always someone home to watch kids/dog/cat/goldfish if you pop out.
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It doesn't matter if many people are doing this or the head of the local choir says it is OK, it is ILLEGAL and it is quite clearly stated in the FDH employment contract that the helper must be employed in AND reside at his/her employers address. I am sure that all is fine and dandy whilst things are running smoothly but what happens if there is any kind of dispute? You as the employer do not have a leg to stand on legally because you have broken the law by allowing your helper to live out. In my opinion if you stick to the conditions imposed by immigration on employing a FDH you will potentially save yourself and your family a lot of heartache and cash in the long run.
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I don't think we should blame beancurd. It is the whole community. As the OP said, her helper's church people all seem to think it's ok.
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I wonder if it is illegal in the situation where the helper has a room at your house (perhaps not a family bedroom but the original helper's room) but has no obligation to sleep there - so you also pay for an additional room at a boarding house.
Presumably you are complying with your contractual obligations by providing accomodation - which needs to be the same as that described in the contract (eg size of room etc). That the helper is not obligated to sleep there except when she is baby sitting or when she chooses is a different matter.
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smallfry, that would also be illegal. The helper MUST by law reside in your home. The exception is that she may spend the night out during her 24 hours (minimum) of rest.
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Thank you for all your input regarding this. I had known this would be illegal, but just wanted to confirm what my helper told me was not true. Now I can go back and tell her to let her church people know they are giving the wrong advice.
BTW, GreenValleys, do you recall when the prosecution of the case you mentioned was made? I searched in the SCMP archives and could not find it. I just wanted to print it out to show my helper, and have her tell her friends also.
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Axpatguy38, in the example i give, the helper does reside at the employer's house but chooses not to sleep at her "official" (ie contractually approved) residence.
Unless the law actually requires the helper to sleep at her residence except on her day off, she can presumably sleep wherever (and whenever) she agrees with her employer.
i haven't looked at the law but wonder what the intention was behind this requirement - was it intended to keep track of helpers (by making them live with employers)? was the intention to protect helpers by ensuring proper living conditions (which are specified in the contract)? or was it something else?
I think it would be extremely unlikely that the intention was to regulate where helpers actually slept.
all i am saying is that the church could be right - that provided you as an employer provide the helper with a (contractually approved) residence in your home - she doesn't have to actually sleep there every night. You'd need to check the law to see if this is so.
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"Unless the law actually requires the helper to sleep at her residence except on her day off, she can presumably sleep wherever (and whenever) she agrees with her employer."
I have looked into the law and it does in fact require helpers to reside (as in sleep there) at the employer's domicile. I even called the Immigration Department and asked. They are allowed to sleep out only during their 24 hours (min) of mandated weekly rest.
"I think it would be extremely unlikely that the intention was to regulate where helpers actually slept."
That is in fact the intention. My guess is that the purpose is to ensure employers actually pay for helpers' lodging.
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I can see that the intention could be to provide decent accomodation for the helper - which can be verified by the authorites by reference to the contract. Once they have allowed for this though, do they really care where the helper ELECTS to sleep with the consent of her employer?
What about the situation where a live-in helper is allowed to finish work at 5 pm and then stay out all night (admittedly unusual and unlikely). She might sleep at her firends' or partner's home even though her residence is at the employer's home.
From what you say, this would be illegal. I find it hard to believe that the govt would intend to control behaviour to this extent if the concern is ensuring proper anf fit accomodation. Isn't this conduct better regulated by the contracting parties?
Also, does the legislation say words to the effect of, "you are only allowed to sleep outside your contracted residence as part of your 24 hours off" or to the effect of, "the employer must provide the helper with accomodation in the employer's home".
Is the provision concerned with behaviour (where the helper actually sleeps) or accomodation (making sure that she has a decent place to sleep)?
If it is the second there is definitely room to argue that the OP's proposal is not illegal. The next question is whether he/she wants to be the test case!
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FKKC
16 yrs ago
"Very selective to advice is a very good point" - doe not only apply to the helpers although it is more to their benefit but a friend we know has been signing up FDH for years and not actually using them. She said these people need a helping hand. We told her it was illegal but she's got her own ideas & liked to do things her own ways. Once these helpers come into town, they have 'friends' helping them to settle. Some find real jobs and some love doing part-time where they can make more money than the regular ones who abide to the law.
Lately, we heard that one of her 'helpers' got into trouble but our friend ( luckily for her) was out of the picture as she has already left HK back to her own country.
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smallfry -
I myself do not think that the government's sole intention is to ensure that decent accommodation is provided for the helper. I think they may want to avoid 3 other problems:
- because there are not enough flats in Hong Kong to meet demand, the Govt wants helpers to live with their employers and leave the small / cheap flats available for low income locals. The issue of insufficient housing for locals in HK is extremely political.
- if helpers were travelling to work every day there would be even more pressure & crowding on public transportation and there would be more traffic congestion
- live-out is more conducive to having a part-time job as well as the 'main' employer.
The live in requirement ensures helpers have decent accommodation and there are 3 other side benefits for the government. And they won't get the benefits if they don't enforce the live-in rule strictly, so of course they won't like it if the employer provides a room and then the helper sleeps elsewhere (except on her rest day).
All that said, I don't like the live-in rule either, I'd choose live-out if it wasn't against the law ...
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FKKC
16 yrs ago
"But if she just live out and working full time to the real employer, I do not think this is enough to put the helper in jail". What about the employer in this case? Will she/he get off so easily? Hope so.
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snowrose
I prefer live-in helpers - we have good quarters and it has its benefits for both us and our helper.
The reason i raised the argument is that there are certain received wisdoms on this board which get repeated time and again so that everyone says "yes this is how it works". It is sometimes worth asking why.
I agree with what you say - there may be a number of reasons why there is a "live in rule". What i have asked is how this rule works in situations where the helper and employer agree the helper can sleep elsewhere - whether for one night or every night.
Does the law regulate the helper's conduct (if so, how?) or do the parties?
The impression i have from what has been posted, is that the employer has an obligation to provide accomodation in his/her home - but no such obligation to make sure that the helper sleeps there 6 nights out of 7.
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"Once they have allowed for this though, do they really care where the helper ELECTS to sleep with the consent of her employer?"
They do care. It is the law. The helper may elect to sleep out on occasion but she MUST reside in the employer's residence. There is obviously some fudge factor but her primary residence must be in the employer's domicile.
"Also, does the legislation say words to the effect of, "you are only allowed to sleep outside your contracted residence as part of your 24 hours off" or to the effect of, "the employer must provide the helper with accomodation in the employer's home"."
The law states: "The Helper shall work and reside in the employer's residence1 as specified in Clause 3 of the standard Employment Contract (ID 407)." See http://www.immd.gov.hk/ehtml/ID(E)969.htm , Paragraph I, part f. It's pretty unambiguous. The only question is how many nights at home are signified by "reside". As I see it this is at least 50%.
"Does the law regulate the helper's conduct (if so, how?) or do the parties?"
Well, the law regulates everyone's conduct if you want to be technical about it. ;) But in this case, again quoting from http://www.immd.gov.hk/ehtml/ID(E)969.htm#Footnote , now §56, part b: The helper may be terminated if she "misconducts himself/herself, such conduct being inconsistent with the due and faithful discharge of his/her duties; "
"I prefer live-in helpers - we have good quarters and it has its benefits for both us and our helper."
Second that.
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"What i have asked is how this rule works in situations where the helper and employer agree the helper can sleep elsewhere - whether for one night or every night."
Even if there is such an agreement between the helper and the employer, the government still won't like it. They do have an interest in making sure that the helper actually sleeps in the employers' home except on rest days. Because that's when they enjoy their other benefits such as less traffic congestion / less crowding on public transport, and less demand for housing.
If it were not illegal I would have my helper live out. My kids are a bit bigger now, and I can handle the school run in the morning without help. My DH is just there to lessen my workload, she doesn't need to live in to do that. I am glad for those who like having their DH live in, it's great that you guys have found an arrangement that works for you. But there are also lots of us who really struggle with the live-in requirement being the law, it would be nice if it could be a free choice.
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FKKC
16 yrs ago
There are also cases where the helpers themselves prefer to sleep out due to various reasons.....it would be a 2 way interest.....helper(more freedom) and employer(no extra space at home).
My previous helper did ask me to let her stay with her auntie who has a place in Wanchai as she's home-sick for her own kind which I truly understand. She said I don't have to pay any extra fee and that she can take the mini-bus or the public bus everyday to work. Although I know her auntie was a genuine auntie of hers, I didn't allow it as I know I will feel uneasy everyday knowing I am breaking a law, no matter how trival, and the fact that I will be worrying that accidents could happen during her daily trips to and from my home.
The bottom line is...don't break any law and you'll sleep better!
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How very very unhappy and lonely your old helper must have been in that position. If you did TRULY understand then you might have let her live with her Aunty. It might be illegal but it does not mean the law is right for every case, especially one like this. I believe that unless I am going to get locked up myself then I should do what is RIGHT. If you have a nasty neighbour who is lining up to shop you for something like this, then you can't help her of course. But for her, it is clearly RIGHT to live with her Aunty on her time off - law or no law. Unless there was a reasonable chance you will really suffer if found out - then you should have allowed her some quality of life outside of your home. The Government is not going to know or do anything to you so what is the problem?
Worrying about accidents during her daily trips to and from your home? Wow. Surely that particular risk is up to her to decide to take? Do you really feel it is ok to control another human beings life 24x7 just so you sleep better at night? I bet you she did not sleep better at night away from the only family she has here. You just try telling every other employee in the world they MUST immediatly stop commuting to their jobs as there is a risk of an accident. What answer do you think you would get? But I don't want to give just you a hard time! The law is an a** here as it denied her and continues to deny so many others a basic freedom. The law effectively imposes house arrest on FDH's and it's worse than that as it's not even their own home.
Even if she had an accident then surely the health insurance you had taken out for her (by law) would take care of her? It's not exactly hard to say she was on a shopping trip if an accident happened. If you are not prepared to do this for her..... Or is it that she might be off sick and not be able to work that is the problem? If that is the logic, then no one in the world should be allowed to travel to work. And you should not let her out of the house ever - to ensure she does not have an accident and be off sick. As long as you sleep well at night who cares what a miserable existence she had with you.
For all employers out there - give FDH's a break and do the right thing by them! I know loads of people here who have run the gauntlet for years and allowed their FDH to live out with no problem. People in jobs they cant afford to lose who still stepped up to the plate and allowed their FDH a basic human freedom.
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FKKC
15 yrs ago
Dude-ette,
The advice to ask people tp break the law (although some of us do find it not too logical and when my lease is up and needed to rent a smaller apartment, I would find this law rather unappealing) is duly noted.
You must have a few boarding houses out there to rant like that, ha ha ha!!!
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momi
15 yrs ago
I know someone who got busted for having his helper live out. I don't want to go into details as to how he got away with it tho. All i can say is he really lost some sleep over this. I wonder what will happen if the Immigration people decide to raid those boarding houses one day? if this is such a common practice, sure the immigration people know where the boarding houses are.
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