Press Release
LCQ2: Domestic employees exempted from the MPFSO
June 20, 2001
Following is a question by the Hon Law Chi-kwong and a reply by the Secretary for Financial Services, Mr Stephen Ip, in the Legislative Council today (June 20):
Question:
Under the Mandatory Provident Fund Schemes Ordinance, persons who employ and those who are employed as "domestic employees" are exempt from joining the Mandatory Provident Fund Scheme; the relevant employees are therefore not entitled to statutory retirement benefits. Furthermore, "domestic employee" is defined as an employee who "provides domestic services in the residential premises of the employer". In this connection, will the Government inform this Council:
(a) among the persons employed to work for households as cooks, cleaners, chauffeurs, gardeners or other posts, of the ones who are exempted from the operation of the Ordinance and those who are not, and the criteria it adopts for the differentiation; and
(b) if the answer to part (a) above is that cooks and cleaners are exempted whereas chauffeurs are not, and as most cooks and cleaners are female while most chauffeurs are male, whether a situation will arise in which the majority of female household employees are not entitled to retirement benefits whereas most male household employees are; if so, has the relevant authority assessed whether the above provision substantively constitutes sex discrimination and therefore contravenes the provisions in the Sex Discrimination Ordinance; if the result of the assessment is in the affirmative, of the time when it plans to revise the provision; if the result of the assessment is in the negative, of the justifications for that?
Reply:
Madam President,
(a) Under the Mandatory Provident Fund (MPF) Schemes Ordinance, "domestic employee" is defined as "an employee whose contract of employment is wholly or substantially for the provision of domestic services in the residential premises of the employer". Such employees are exempted from the operation of the MPF legislation. According to the above definition, employees who are rendering services which are substantially domestic in nature would be regarded as providing "domestic services". "Residential premises" includes a flat or house for residential purposes or a residential building together with its land or ancillary buildings, including private gardens. Therefore, those who are covered by the above definition, for example cooks, cleaners and gardeners providing domestic services in their employers' premises, are exempted. Family chauffeurs are not exempted because most of their services are rendered outside the residential premises.
Domestic employees are exempted because of the difficulty in ensuring compliance with the legislative requirements. To ensure compliance, the Mandatory Provident Fund Schemes Authority (MPFA) would need to inspect and, if necessary, collect evidence in the employers' residential premises for the purpose of prosecution actions. It will be difficult for MPFA to inspect tens of thousands of private households. Furthermore, the public would not like the MPFA to conduct inspection in their residential premises and would not welcome any disturbances caused by such inspections.
(b) Regardless of their gender, all those who fall under the definition of "domestic employee" are exempted from the MPFSO. The question of sex discrimination does not arise.