|
Eligibility
Criteria |
| Q. 1:
|
Under what conditions will an
employer enjoy the waiver of levy during the suspension period from
1 August 2008 to 31 July 2013? |
| A. 1:
|
Employers are not required to pay the
Employees Retraining Levy as long as the visas for the helpers are
granted by the Director of Immigration from 1 August 2008 to 31 July
2013 regardless of the date of signing the employment contract or
the date of submission of the visa application. |
| Q. 2: |
How to determine the date on
which visa is granted by the Immigration Department? |
| A. 2: |
The date of issue of the visa is printed
on the visa label which should also be the date of visa collection. |
| Q. 3: |
Can I still be benefited from
the waiver of levy if my helper's application was submitted before 1
August 2008 but the visa has not been collected? |
| A. 3: |
The suspension will apply to cases where
the employment visa of the helper is granted by the Immigration
Department between 1 August 2008 and 31 July 2013, regardless of the
date on which the visa application is submitted. However, if the
visa label has not been collected for 3 months after the date of
approval, the application may be taken as cancelled. |
| Q. 4: |
Could the employer ask his/her FDH to work
while waiting for the issue of the employment visa? |
| A. 4: |
The Employees' Compensation Ordinance
(Cap. 282) lays down the rights and obligations of employers and
employees in respect of injuries or death caused by accidents
arising out of and in the course of employment. The Ordinance also
stipulates that no employer shall employ any employee in any
employment unless there is in force in relation to such employee a
policy of insurance to cover the employer's liabilities both under
the Ordinance and at common law.
Insofar as the employment of FDHs is concerned, the employee's
compensation insurance policy is valid only during the employment
period (i.e. during the validity period of the employment visa of
the FDHs concerned). Besides, unless there are other additional
terms, these insurance policies would usually cover the injuries or
death suffered by an employee arising out of and in the course of
employment only. So, if the FDH has yet been granted a valid
employment visa, the employer should not ask his/her FDH to work
while waiting for the issue of the employment visa, or else he/she
may commit an offence of employing a person who is not lawfully
employable. If the FDH suffers injuries or death in the period, the
employer may also have to shoulder the civil liabilities of making
compensation in huge sum.。 |
| Q. 5: |
If my prospective helper was
issued with a visa issued before 1 August 2008 but the visa was
lost, can I request to have a replacement visa issued after 1 August
2008 so that I can enjoy the waiver of levy? |
| A. 5: |
Replacement visa will only be issued if
the existing visa is lost or damaged. Even though the replacement
visa is issued after 1 August 2008, you will not enjoy the waiver of
levy under such circumstances. |
| Q. 6: |
Is there any quota for each
employer to enjoy the waiver of levy? If I apply to employ more than
one helper and their employment visas are all granted within the
suspension period, will all contracts be exempt from levy payment? |
| A. 6: |
As long as the employment visas of the
helpers are granted within the suspension period, levy will be
waived. There is no quota for the number of contracts to be exempt
from levy payment for each employer. |
|
Advanced
Contract Renewal |
| Q. 7: |
| If the contract with my helper has yet to run
its 2-year full course, can I terminate the contract and
enter into a new one with the same helper so as to benefit
from the waiver of levy during the suspension period?
|
|
| A. 7: |
It is the contractual parties' own
decision whether or not to terminate a contract but they have to
observe their individual obligations regarding termination of
contract. From 1 August 2008, a new special arrangement was
introduced whereby application for advanced contract renewal
involving the same employer and the same employee is accepted during
the suspension period i.e. from 1 August 2008 to 31 July 2013. Under
the new arrangement, the helper does not need to apply afresh from
abroad to re-enter Hong Kong for employment. The employer and the
helper may opt to start the new contract in Hong Kong immediately
after the termination of the existing contract. |
| Q. 8: |
| How could I submit the application for advanced
contract renewal? |
|
| A. 8: |
The application procedures are similar
to those of the normal contract renewal cases. The new contract has
to be notarized if so required by the relevant Consulate. Besides, a
written confirmation duly signed by the employer and the helper
regarding the termination of the existing contract and the date of
termination is required. For streamlining of procedures, proof of
the employer's financial position is waived for this kind of
application if there is no change of employer. |
| Q. 9: |
| Is there any time frame for submission of the
advanced contract renewal application? |
|
| A. 9: |
The application for advanced contract
renewal has to be submitted before the end date of the suspension
i.e. 31 July 2013. Normally, such application can be made within 4
weeks prior to the termination of the existing contract. However, to
ensure that applications received could be properly processed for
the grant of visa before the end date of the suspension, the
Immigration Department would need to set a cut-off date for
employers to submit visa applications for advanced renewal of
contracts and new contracts, where part of the contract period falls
after 31 July 2013. The Immigration Department would work out the
exact cut-off date taking into account the operational experience
after the suspension has taken effect and make prior announcement in
early 2013 to inform the public of the application deadline and
other detailed arrangements. |
| Q. 10: |
| If I terminate prematurely the existing contract
with my helper and enter into a new contract with her
immediately, will there be any break in the service of my
helper? |
|
| A. 10: |
Whether there will be a break of service
would very much depend on the circumstances of the individual cases.
That said, the application for premature contract renewal has to be
made prior to the termination of the existing contract. If the
application is approved, an extension of stay of normally not
exceeding one year may be granted together with the issuance of an
entry visa with validity in line with the extension of stay granted. |
| Q. 11: |
What is the processing time for
advanced contract renewal application? |
| A. 11: |
The application will normally be
finalized within the same day if all necessary supporting documents
are in order. However, if there is upsurge of applications,
applicants may be programmed for submission of application or
collection of visa as appropriate. |
| Q. 12: |
What are the approval criteria
for advanced contract renewal applications? |
| A. 12: |
Each application will be considered and
assessed on its individual merits in accordance with the prevailing
policies. Normally, if there is no change in circumstances since the
approval of the last contract, the application will be favourably
considered. |
| Q. 13: |
| It is said that the Director of Immigration
reserves the right to refuse visas for advanced contract
renewal for cases involving blatant manipulation. What are
these cases? |
|
| A. 13: |
Application may be refused if the bona
fides of the employer and the helper are in doubt; or if there is
known record to the detriment of the employer and/or the helper,
such as illegal deployment of the helper for non-domestic duties; or
there is breach of the standard Employment Contract (ID407), such as
the helper failing to work and reside at the employer's residence as
stated in the contract. |
| Q. 14: |
Where can I submit the
application for advanced contract renewal application? |
| A. 14: |
Application may be submitted in person
or through the authorized representative to the Foreign Domestic
Helpers Section or the Immigration Branch Offices (except the Hong
Kong Island Travel Documents Issuing Office). |
| Q. 15: |
What are the forms and documents
required for the advanced contract renewal application? |
| A. 15: |
The employer and the helper have to
complete form ID988B and ID988A respectively. Supporting documents
required include an original copy of each of the current and the new
employment contract, original of the helper's passport, copy of the
helper's Hong Kong identity card, proof of the employer's
residential address (original and copy), and letter of termination
of the current contract signed by the employer and the helper.
Further documents in support of the application may be required by
the processing officer in individual cases. |
|
Questions
relating to visa issued before 1 August 2008 |
| Q. 16: |
Do I still need to pay levy for
my old contract if I renew the contract with my existing helper
after 1 August 2008? |
| A. 16: |
For those contracts where visas are
granted before 1 August 2008, employers should continue to pay the
levy as required under the law until the end of the contract.
Employers are reminded to pay levy in accordance with the due-date
as specified in the Payment Note (ID971). The employer is required
to pay the whole instalment ($2,400) irrespective of the actual
period the helper has worked for the employer in that instalment
period. For example, if the employer has paid for the first
instalment and is going to prematurely terminate his/her helper in
the 7th month of the employment period, the employer is required to
pay the second instalment in full. |
| Q. 17: |
If the contract with my existing
helper will complete its 2-year course in June 2013 and we agree to
renew the contract with visa issued on or before 31 July 2013, how
long can I enjoy the waiver of levy? |
| A. 17: |
You can enjoy the waiver of levy for the
whole contract until its completion or termination if the visa is
issued on or before 31 July 2013. |
| Q. 18: |
| Can I transfer the unused balance of levy of old
contract to the helper who will be employed after the
suspension period? |
|
| A. 18: |
No. As the amount of levy payable per
month will become $0 during the suspension period, all unused
balance of levy will not be carried forward to the time after the
suspension ends. |
| Q. 19: |
| I have collected visa for my helper before 1
August 2008. Now I decide to cancel the visa as it has not
been activated. How can I get back the levy paid for the
first instalment ($2,400)? |
|
| A. 19: |
All levy paid is not refundable under
any circumstances. |
| Q. 20: |
My helper's visa was granted on
16 July 2008 and arrived Hong Kong to commence to work for me on 4
August 2008. Do I need to pay the remaining instalments if the
contract is to be terminated on 2 February 2009 i.e. in the 6th
month of employment period? |
| A. 20: |
No. You do not need to pay the remaining
instalments under the existing arrangement. |
| Q. 21: |
I received a reminder to ask me
to settle the whole second levy instalment ($2,400) but I had just
employed the helper for 6 months and 14 days. Can I settle the
payment on pro-rata basis? What is the consequence if I do not
settle the payment? |
| A. 21: |
The levy should be settled in full
instalment and no pro-rata payment will be accepted. Legal action
may be taken against you to recover the outstanding instalment(s).
Immigration Department will also take into account such adverse
record if you submit another application for employing helpers from
abroad. You may thus be considered ineligible for employment of
helper from abroad for a certain period of time. |
| Q. 22: |
Can the unused balance of levy
be refunded after 1 August 2008? |
| A. 22: |
All unused levy is not refundable under
any circumstances. |
| Q. 23: |
| Is there any change to the amount of levy
payable and payment method during the suspension period for
contracts with visas issued before 1 August 2008?
|
|
| A. 23: |
No. The levy payable for each helper
with visa issued before 1 August 2008 is still $400 per month
multiplied by the number of months covered by the employment
contract. For payment by instalment cases, employers may make the
subsequent instalment payment in person or through representatives
in cash or by cheque to the Foreign Domestic Helpers Section at the
Immigration Headquarter or Immigration Branch Offices listed on the
back of the Payment Note (ID971) within office hours. If you opt to
send the payment by post or drop-in box, you are required to enclose
your cheque (quoted with the file reference) and the Payment Note
and send them by mail or drop them at the designated collection box
at the Immigration Department Headquarters. |
|
Procedural Change |
| Q. 24: |
Is there any change to the
existing procedures in submitting an application for employment of a
helper after 1 August 2008? |
| A. 24: |
No. The application procedures remain
largely the same except the prospective employer need not pay the
levy for visa granted by the Immigration Department during the
suspension period. |
|
Contractual and statutory
entitlements of FDHs (Advanced Contract Renewal) |
|
(i) |
Rights and
obligations issues |
| Q. 25: |
If an employer terminates the
helper's contract before completion, signs a new contract with the
same helper and submits application to the Immigration Department
for advanced renewal, does the employer need to make termination
payments to the helper? |
| A. 25: |
If the new contract of the helper takes
effect immediately after the ending of the existing contract, the
helper's years of service with the employer will not be affected or
interrupted due to the advanced renewal. In general, the employer
does not need to pay the helper long service payment or other
termination payments calculated according to years of service.
However, the employer has obligation to follow the contractual terms
signed by both parties in the termination of contract. According to
the provision of the standard employment contract, the employer need
to give the helper one month's notice or one month's wages in lieu
of notice for termination. Regarding the arrangement for free
passage provided to the helper upon termination, please refer to
question 26.
Each case has its own circumstances and is subject to individual
merits and mutual arrangements by both parties. In case of dispute,
it may be necessary to seek adjudication of the Labour Tribunal or
Minor Employment Claims Adjudication Board. |
| Q. 26: |
If the employer prematurely
terminates the helper's contract and renews the contract with the
same helper, does it affect the helper's statutory entitlements
under the Employment Ordinance? |
| A. 26: |
Some statutory entitlements under the
Employment Ordinance are related to the employee's length of
continuous employment, such as long service payment, severance
payment, number of days of annual leave, number of paid sickness
days etc. If the new contract of the helper takes effect immediately
after the ending of the existing contract, the helper's years of
service with the employer will not be affected or interrupted due to
the advanced renewal. Therefore, in general, the statutory
entitlements of the helper will not be affected. In the above
circumstances, the employer should calculate and grant annual leave
and statutory holidays to the helper in the way that the continuity
of contract is not broken.
Example:
| Helper's commencement date
of employment: |
1 June 2007 |
| (expiry date of existing
contract: |
31 May 2009) |
| Effective date of premature
termination: |
5 August 2008 |
| Effective date of new
contract: |
6 August 2008 |
| (expiry date of new
contract: |
5 August 2010) |
|
|
Annual leave
- The helper has not taken any annual leave. He/she has
accumulated 7 days' annual leave during the leave year from 1
June 2007 to 31 May 2008 (assuming that the employer has not
appointed leave year otherwise).
- The employer should grant the above-mentioned 7 days' annual
leave to the helper during the subsequent leave year from 1 June
2008 to 31 May 2009.
- The second leave year for calculating the annual leave for
the helper should be 1 June 2008 to 31 May 2009.
Statutory holiday
Each case has its own circumstances and is subject to individual
merits and mutual arrangements by both parties. In case of dispute,
it may be necessary to seek adjudication of the Labour Tribunal or
Minor Employment Claims Adjudication Board. |
| Q. 27: |
Under the Advanced Contract
Renewal Arrangement, the Immigration Department allows the FDHs to
continue to work in Hong Kong. As such, why the employers are still
required to grant free passage to the FDHs? |
| A. 27: |
According to the standard employment
contract, an employer shall provide the helper with free passage to
his/ her place of origin on termination of the contract.
Following the Advanced Contract Renewal Arrangement, under which the
Immigration Department does not require the FDHs to leave Hong Kong
immediately after the termination of the contract and before the new
employment contract takes effect, there are two scenarios for the
employers to honour the above "free passage" contractual obligation
:
- New contract takes effect immediately:
Where the employer and FDH renew the contract immediately after
termination of the previous one, the FDH would not need to leave
Hong Kong immediately, and as such, the employer would not need
to provide free passage at this point of time. Under this
circumstance, an FDH would be allowed to continue his/her stay
in Hong Kong for not more than one year, and be issued with a
visa with the same validity as his/her extended stay so that the
FDH would leave Hong Kong within the permitted stay and then
come back to complete their two-year contract. As such, the FDH
would have chance to go home within the first year of the new
contract. The employer shall then provide free passage for the
FDH. This arrangement is in line with the established practice
for FDH employment contract renewal cases.
- New contract takes effect subsequently:
Upon agreement of the employer and FDH, the FDH may leave Hong
Kong immediately after the termination of the previous contract.
The employer shall then provide the FDH with free passage. Under
this circumstance, ImmD would issue a visa to the FDH so that
he/ she can come back to Hong Kong to commence the new contract.
Usually, the FDH would be allowed to stay for two years upon
return to Hong Kong for completion of new employment contract.
The above arrangements are in line with the provisions of the
employment contracts signed by employers and FDHs, i.e. the employer
shall provide free passage to the FDH, though the actual timing
would depend on the departure time of the FDH under the Advanced
Contract Renewal Arrangement. |
| Q. 28: |
| Could the employer ask his/her FDH to work while
waiting for the issue of the employment visa? |
|
| A. 28: |
The Employees' Compensation Ordinance
(Cap. 282) lays down the rights and obligations of employers and
employees in respect of injuries or death caused by accidents
arising out of and in the course of employment. The Ordinance also
stipulates that no employer shall employ any employee in any
employment unless there is in force in relation to such employee a
policy of insurance to cover the employer's liabilities both under
the Ordinance and at common law.
Insofar as the employment of FDHs is concerned, the employee's
compensation insurance policy is valid only during the employment
period (i.e. during the validity period of the employment visa of
the FDHs concerned). Besides, unless there are other additional
terms, these insurance policies would usually cover the injuries or
death suffered by an employee arising out of and in the course of
employment only. So, if the FDH has yet been granted a valid
employment visa, the employer should not ask his/her FDH to work
while waiting for the issue of the employment visa, or else he/she
may commit an offence of employing a person who is not lawfully
employable. If the FDH suffers injuries or death in the period, the
employer may also have to shoulder the civil liabilities of making
compensation in huge sum. |
|
(ii) |
Signing of
written undertaking |
| Q. 29: |
Why are employers who wish to
have advanced contract renewal with their FDHs required to sign a
written undertaking? |
| A. 29: |
Some employers who wish to seek the
suspension of levy as soon as possible may choose to terminate their
existing contracts with their FDHs. When the levy suspension period
is coming to an end, some employers may also choose to advance the
renewal of employment contracts with their FDHs. To ensure that the
entitlements of FDHs reckoned on the basis of their duration of
employment will not be reduced due to the breaking of the continuity
of their service in the event that the new contract fails to
commence immediately after the termination of the existing contract,
employers who wish to apply to the Immigration Department for
advanced contract renewal has to sign a specified written
undertaking to confirm the termination of the existing contract and
the effective date of termination, and to commit on the continuity
of employment relationship under the new and the old contracts. In
so doing, FDHs will be assured that their existing and future
entitlements under the Employment Ordinance and their employment
contracts will not be affected by the advanced contract renewal. |
| Q. 30: |
What additional liability will
be placed on the employer after having signed the undertaking? |
| A. 30: |
| The sole purpose of signing the undertaking is to ensure
that the years of service of the helper will not be affected
or curtailed by the advanced contract renewal. After having
signed the undertaking, the employer is not required to take
up extra responsibilities apart from those stipulated under
the Employment Ordinance and the helper's employment
contract. |
|
| Q. 31: |
| What does "the existing and future entitlements"
under the Employment Ordinance refer to? |
|
| A. 31: |
| "The existing and future entitlements" under the
Employment Ordinance refer to an employee's statutory
entitlements under the said Ordinance. It includes
employment benefits linked to an employee's years of service
under a continuous contract such as long service payment,
severance payment, paid annual leave and paid sick leave
etc. |
|
