Question on paid and unpaid leave

My DH is planning to go back to Philippines end of this month... and we kind of agreed that this will be her home leave of her 2 yr contract with us (so I assume she will take the full 14 days).

Question 1: Is that possible since she has worked only 2 months with us? Can this be an agreement between her and us and we won't run into any troubles later?

Question 2: There are 2 Stat holidays on first week of may 1st and 5th, so do I still have to grant her 14days + 2 days due to the stat hols? Just want to be clear (i.e. just short of 2 days of leave to make it a full 3 weeks holiday for her)?

Question 3 : If my calculation for qn 2 is correct, then if DH decides to take full 3 weeks, do we then consider the extra 2 days as unpaid leave?

Thanks in advance

Your helper isn't entitled to any stat holidays for the first 3 months of her contract.


Personally, I wouldn't let her go back to Philippines when she's just worked 2 months. She's hardly gotten used to your family's routine and hardly settled down, after she comes back, you have to re do it all.


Also, assuming your helper had a medical checkup BEFORE she started her contract with you, after she returns home and come back, wouldn't you need to her to do another medical then ? ( I would, esp b/c I have babies).....


Just my thoughts.

The Employment Ordinance sets a minimum standard. One can do anything over the minimum but must meet the minimum.


Kate is not quite correct. The helper is entitled to (in fact must be given) statutory holidays, but she is not entitled to paid statutory holidays during the first three months of the contract. So any statutory holidays that fall in the first three months can be considered no pay leave, though some maybe many) employers grant them as paid leave.


The end of contract return to homeland is not about annual leave. It is for the purpose of leaving Hong Kong because the employment visa has expired and one must leave and return in order to activate a new employment visa. Immigration is not worried that your helper took her annual leave overseas (employee rights and benefits is a labor department problem). So your helper will be required to exit Hong Kong and return to start a new visa. You may get a 1 year extension but that’s all anybody can get.


As far as I can find there is no requirement for those annual leave to be taken overseas, most people will do this to kill two birds with one stone. The requirement for annual leave is 7 days for every full year worked (pro rata after 3 months). A person is also entitled to 1 rest day in every 7 days. Annual leave or statutory holidays may not be used on a rest day. So if a person has accrued 14 days of leave in a contract they will actually be able to take 14 days leave plus 1 rest day in every 7 or 16 days off duty.


You can apply the annual leave now if it is agreed by both (get some written agreement) and if she quits or is terminated early you will be able to take a pro rata deduction of her wages for what would then become no pay leave. The other days (no matter how many) can be calculated as no pay leave). Also you could count the whole thing as no pay leave now. And give the annual leave later when it has been earned.


1. Yes

2. The SH days can be no pay leave but must be given as leave.

3. You can.

This makes me think of another question.


If my helper is on a trip to the Philippines when her salary is due, is it okay to pay it when she gets back (with mutual agreement)?


For example, I pay her salary on the last day of every month. If she visits her family in the Philippines at Christmas, departing on, say, 20th Dec and returning on, say, 5th Jan, obviously she'll be away on pay day. Can I just pay her on the 6th Jan?



Would this kind of arrangement also be okay if I'm away on a trip without her? For example, if I go to China for a fortnight without her, and she stays in HK (maybe in a boarding house or something) and I'm away on her pay day. Am I allowed to just pay her as soon as I get back?


I usually encounter this type of situation once or twice a year.

An employer is allowed 7 days from due date to make wage payments. I suppose if you have a temporary arrangement in advance and you make the payment, then the law would probably not punish you.


That said: An employee is not allowed (in law) to waive their rights. So; for example if an employee agreed to take a wage below minimum the law would not consider the agreement valid because the employee can not waive their rights. The law clearly states they minimum allowable wage. So those who pay their helpers less than minimum may find they are sued later for the remaining wage, and they will have no case of defense.