ANNUAL & VACATION LEAVE - EXPLANATION FROM LABOUR DEPT.

Reading through old threads on this subject confirms how many employers do not correctly understand the rules pertaining to ANNUAL & VACATION leave entitlement for domestic helpers. For this reason, I am re-posting this explanation from the Labour Department onto a thread of its own so that anyone with queries regarding this matter will not have to trawl through many long threads with conflicting views to find the answers.


EXPLANATION FROM THE LABOUR DEPARTMENT ...


<< Under the Employment Ordinance, foreign domestic helpers are entitled to the following leave:


Rest days;

Statutory holidays; and

Paid annual leave.


Under Clause 13 of the standard employment contract, if both parties agree to renew the contract, the helper shall, before the new contract commences, return to his/her place of origin at the expense of the employer for a 'VACATION' of not less than 7 days according to the standard employment contract, unless prior approval for extension of stay in Hong Kong is given by the Director of Immigration. The VACATION LEAVE should be granted IN ADDITION to the helper’s entitled ANNUAL LEAVE.


PAID ANNUAL LEAVE ...


A helper is entitled to paid ANNUAL LEAVE after serving every period of 12 months with the same employer. The helper’s entitlement to paid ANNUAL leave will increase progressively from seven days to a maximum of 14 days according to the length of service as follows:


Years of Service - 1 ... 7 days annual leave

2 ... 7 days

3 ... 8 days

4 ... 9 days

5 ... 10 days

6 ... 11 days

7 ... 12 days

8 ... 13 days

9+ ... 14 days


A helper shall take the paid ANNUAL LEAVE to which he/she is entitled within the following period of 12 months at a time appointed by the employer after consultation with the helper, confirmed by a written notice to the helper at least 14 days in advance.


As said above, please kindly note that the VACATION LEAVE stipulated under Clause 13 of the standard employment contract should be granted IN ADDITION to the helper’s entitled ANNUAL LEAVE.


With regards to your second question, please note that any rest day or statutory holiday falling within the period of annual leave will be counted as annual leave. ANOTHER REST DAY OR HOLIDAY MUST BE APPOINTED. >>


So, to sum it all up, if renewing the contract, before the new contract commences, a helper must take 7 days 'VACATION' leave PLUS their entitled ANNUAL LEAVE (if that's when they agree with you to take their annual leave). So, in the case of a helper renewing after 2 years, she would be entitled to take 7 days VACATION leave (which she must take at the end of her contract), plus 14 days ANNUAL leave, making a total of 21 days entitlement. The ANNUAL leave however, can be taken at another time to suit both employee and employer.


With regards to the rest days and statutory holiday falling within the annual leave period, they are counted as annual leave - you don't have to give them additonal days during the actual leave period, but they must be given at an agreed time to suit both employer and employee.


So, for anyone out there who, in the past, has only given their helper the straight 'annual leave' entitlement, you will owe them for the 7 days additional 'vacation leave' that they were entitled to ... plus any rest days, or staturory holidays that fell within their 'annual leave' period.


Oh, and the cost of flights to his/her place of origin, paid for by the employer, are for the 'VACATION' leave, NOT the 'ANNUAL' leave. So, if your helper takes the 7 days vacation leave, plus 7 days annual leave between contracts, then takes her additonal 7 days annual leave at a later date, the employer is only obliged to pay for flights when the vacation leave was taken ... not for the additional 7days entitlement if your helper wishes to go back home ... unless, of course, you want to be generous ...


I hope that clears up some of the confusion!

A good question would be, "Is the vacation leave with pay"?


One could have a paid annual leave, ergo, one can have unpaid annual leave (just like normal office workers). Maybe the vacation leave is an unpaid leave...hopefully somebody can clear this up.

Q2.5: Should vacation leave be granted in addition to annual leave? Is it paid or unpaid?

•Vacation leave of not less than seven days should be granted in addition to the helpers entitled annual leave. However, whether this vacation leave shal be paid or unpaid would depend on the term agreed in Clause 13 of the standard employment contract.


Clause 13 has to do with the end of a 2 year contract abd the contract will state if the vacation is paid or unpaid.

From chapter 4 of the “Practical Guide For Employment of foreign domestic helpers – What foreign domestic helpers and their employers should know” in website: http://www.labour.gov.hk/eng/public/wcp/FDHguide.pdf


Q4.12 Should vacation leave be granted in addition to annual leave? Is it paid or unpaid?


A. Vacation leave of not less than seven days should be granted in addition to the helper's entitled annual leave. However, whether this vacation leave shall be paid or unpaid would depend on the term agreed in clause 13 of the standard employment contract.


So, no, vacation is not automatically paid ... it depends what you agree with your helper. Only the entitled annual leave must be paid, but I would imagine that most employers would pay for the vacation leave also.


Helpers must be paid for their entitled annual leave, but obviously if you agree to give them any further leave, in excess of their entitlement, then this would be unpaid (unless you are generous), just like any normal office workers.

Sorry, hkwatcher, I didn't see your response before posting!

Sapphire, thanks very much for following up with the official response you received from HK Labour dept. I was just wondering ... is what you posted above the verbatim response from HKL or your own words of what you understood from their response? If possible, I would be most interested in reading their entire response (unaltered). Thanks again for taking the time to share all your efforts with this forum.

pkw888 - Everything between the arrows << ..... >> is the actual response that I received from the Labour Department. The only alteration I made was the use of capital letters for ANNUAL and VACATION LEAVE ... just to avoid confusion between the two!

Thanks again for sharing all your findings, Sapphire!

hi.. good day.. im a helper and going to finish my 2nd contract this November,me n employer both agreed that i go for vacation this coming December as they will renew my 3rd contract..my question is: how many days im allow to go for vacation/annual leave .( ps.i went vacation last yr 14 days for my first contract) thanks.

FPM_21 - If I understand correctly from your post, you are finishing your second two-year contract, so you have completed 4 years service. That being the case, based on the information given in the original post above, you will be entitled to 7 days VACATION leave for the end of contract, PLUS your ANNUAL leave entitlement, which is 8 days for your 3rd year, and 9 days for your 4th year. Making a total of 24 days. However, if you have already taken your 3rd year ANNUAL leave entitlement of 8 days, then you will be due 7 days VACATION leave, PLUS 9 days ANNUAL leave for your 4th completed year - a total of 16 days.

The 7 days VACATION leave must be taken at the end of each contract (unless agreed with IMM. Dept. to defer it), but the ANNUAL leave can be taken at any time agreed between you and your employer. Although, most FDHs tend to take all of their entitled leave together at the end of each 2 year contract.

You said that you had 14 days leave for the end of your first contract ... assuming you meant at the end of your first 2-years service, you were actually entitled to 7 days VACATION leave, PLUS 7 days ANNUAL leave for both your 1st year of service, and your 2nd year of service, making a total of 21 days annual plus vacation leave. If you did not get this, maybe you should point it out to your employer ... or perhaps you took your 1st year ANNUAL entitlement after your 1st year of service ...? In which case you would've only been entitled to the 14 days leave that you took at the end of your first 2-year contract.

Also, be aware that any rest days, or statutory holidays, that fall within your ANNUAL leave are classed as annual leave, but you are still entitled to take those days at a time mutually agreed with your employer.

Please also note that if you choose to take your ANNUAL leave after every 12 months of service, rather than at the end of each 2-year contract, your employer does not have to pay for your airfare ... Employer is only liable for the cost of your airfare for your VACATION leave at the end of each 2-year contract.

I hope that explanation helps ...

hi good day! I'm a domestic helper I would like to ask about my annual leave. I've been working with my employer since 2004 to present. This is the time line of my annual leave:

2004-2007 settled annual leave
2008-2010 I did not take any annual leave
2011- I took 13 days annual leave
2012-2014 I did not take annual leave
2015- planning to take 16 days annual leave

May I know how many more days I have for my annual leave left? And if not to much to ask, may I know how much is the per day of the annual leave? Me and my employer agree to settle in cash the annual leave that I didn't use. Thank you in advance.