Chapter 3
3
PAYMENT AND DEDUCTION OF WAGES
For Employer
Q3.1 Can I agree with my helper to pay lesser amount of wages than the minimum allowable wage (MAW)?
A No. An employer cannot agree with the helper to pay lesser amount of wages than the MAW. Approval for the importation of foreign domestic helper is based on facts submitted to the Director of Immigration, whereby the employer has agreed to pay not less than the MAW. An employer who willfully and without reasonable excuse underpays wages as stated in the standard employment contract is liable to prosecution and, upon conviction, to a maximum fine of HK$350,000 and to imprisonment for 3 years. The employer would also be committing serious offences of making false representation to an Immigration Officer and conspiracy to defraud. Any person convicted of making false representation is liable to prosecution and, upon conviction, to a maximum fine of HK$150,000 and to imprisonment for 14 years.
Q3.2 How should I pay wages to my helper?
A You are advised to pay wages by cheque or by auto payment into your helper’s bank account. To do this, you have to obtain your helper’s consent beforehand. If your helper does not prefer such methods of payment, you should pay him/her wages in legal tender.
You are required to keep records of wage payments, e.g. relevant bank statements. You should also provide a receipt for payment of wages and food allowance and ask your helper to acknowledge receipt of the amount. A sample wage receipt for Foreign Domestic Helpers (FDH's) is at Appendix 3A.
Q3.3 When should I pay wages to my helper?
A You should pay wages to your helper not less than once every month. Wages shall become due on the expiry of the last day of the wage period. You should pay wages to your helper as soon as practicable but in any case not later than 7 days after the end of the wage period.
If you wish to change the wage period and wage payment date, you should give prior notice to your helper and clear the outstanding wages.
For example, your helper commenced employment on 1st of March. If you intend to change the wage period as starting from the 16th of each month, you should clear the balance of the 15 days’ wages (i.e. from 1st to 15th) within 7 days after the 15th of March before you pay him/her on the new payment date in April.
Q3.4 What should I do when my employer pays me wages?
A You should check the amount paid to you. If correct, you should acknowledge receipt of the amount on the receipt prepared by your employer.
Q3.5 What should I do if my employer pays less than my entitled wages?
A If the amount is less than the wages stipulated in the employment contract, you should check with your employer to see if there is any mistake in calculation. Never acknowledge receipt of wages that you were not paid. If there is no satisfactory explanation for the underpayment, you should report the case to the branch office of the Labor Relations Division of the Labor Department immediately. See Chapter 12.
Q3.6 Can an employer deduct the Helper’s wages to compensate for damage to goods caused by him/her? What other items may an Employer deduct from the Helper’s wages?
An employer can make deductions for damage to or loss of the employer’s goods, equipment or property by the helper’s neglect or default. In any one case, the sum to be deducted shall be equivalent to the value of the damage or loss but not exceeding HK$300. The total of such deductions shall not exceed one quarter of the wages payable to the helper in that wage period.
The employer may also make deductions from the helper’s wages under the following circumstances:
deductions for absence from work. The sum to be deducted should be proportionate to the period of time the helper is absent from work;
deductions for the recovery of any advanced or over-paid wages made by the employer to the helper. The total sum to be deducted shall not exceed one quarter of the wages payable to the helper in that wage period;
deductions, with the helper’s written consent, for the recovery of any loan made by the employer to the helper; and
deductions which are required or authorized under any enactment to be made from the wages of the helper.
Except with the approval in writing of the Commissioner for Labor, the total of all deductions, excluding those for absence from work, made in any one wage period shall not exceed one half of the wages payable in that period.
Q3.7 What are the consequences if an employer fails to pay wages to the helper on time?
If an employer who willfully and without reasonable excuse fails to pay wages to the helper within 7 days from the due date of payment, he/she is:
required to pay interest on the outstanding amount of wages to the helper; and
liable to prosecution and, upon conviction, to a maximum fine of HK$350,000 and to imprisonment for 3 years.
If wages are not paid within 1 month from the due date of payment, the helper may deem the contract to be terminated by the employer without notice. Under such circumstances, the employer is required to pay payment in lieu of notice in addition to other statutory and contractual termination payment to the helper. See Chapter 8.