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Following is a question by Hon Chiang Lai-wan and a written reply by the Secretary for Labour and Welfare, Mr Matthew Cheung Kin-chung, in the Legislative Council today (October 9):
Question:
Some employers of foreign domestic helpers (FDHs) have complained to me that some intermediaries for FDHs (intermediaries) were alleged to have colluded with FDHs to entice, by using various tactics, the employers into termination of the employment contracts with the FDHs, so that the FDHs could obtain free passages to return to their places of domicile, one month's wages in lieu of notice and relevant service charges. However, those FDHs did not comply with the requirement of returning to their places of domicile. Instead, they left Hong Kong for a short while and then returned to Hong Kong to look for new employers, so as to stay in Hong Kong to work. These employers have also pointed out that certain intermediaries had included unfair terms into service agreements, e.g. allowing the intermediaries to breach the agreement unilaterally without payment of compensation, or prohibiting employers from seeking a refund in case of failure of the intermediaries in providing services in the end. In this connection, will the Government inform this Council:
(a) of the number of complaints received by the authorities in the past five years about FDHs not returning to their places of domicile as required, upon early termination of employment contracts with their employers; of the authorities' measures to ensure that FDHs comply with such requirement;
(b) given that the Employment Ordinance (EO) (Cap. 57) provides that an employer may summarily dismiss an employee without notice or payment of wages in lieu of notice if the employee wilfully disobeys a lawful and reasonable order, misconducts himself, is guilty of fraud or dishonesty, or is habitually neglectful in his duties, whether the authorities have studied ways to step up publicity on EO to enable employers to understand their legitimate rights and interests and the redress channels in place;
(c) of the number of complaints received by the authorities involving intermediaries in the past five years, and the major contents of such complaints; the follow-up actions taken by the authorities, and whether they have studied ways to step up regulation of intermediaries' fees and charges as well as contract terms, e.g. requiring intermediaries to submit details of their fees and charges; and
(d) given that the Trade Descriptions (Unfair Trade Practices) (Amendment) Ordinance 2012 (Amendment Ordinance) has come into operation since July 19, 2013 and the services provided by intermediaries to employers are subject to regulation under the Amendment Ordinance, whether the authorities have received any complaint so far about violation of the Amendment Ordinance by intermediaries, and of the follow-up actions taken?
Reply:
President,
My response to Hon Chiang Lai-wan's enquiry is set out below:
(a) The Immigration Department (ImmD) does not keep the relevant statistics.
Under the existing policy, FDHs must leave Hong Kong upon completion of their contract or within two weeks from the date of termination of their contract, whichever is earlier. Application by FDHs for change of employer within their two-year contract in Hong Kong will not normally be approved except under exceptional circumstances, for example, if the FDH's contract is terminated on grounds of the transfer, migration, death or financial reasons of the ex-employer, or if there is evidence suggesting that the FDH has been abused or exploited. If the FDH wishes to enter into an employment contract with a new employer, he/she must leave Hong Kong and submit a new employment visa application to ImmD. In assessing applications for change of employer after premature contract termination, ImmD will ensure that the FDH concerned has departed Hong Kong before an employment visa will be issued. In the light of the huge demand for FDHs in Hong Kong, ImmD often receives employers' requests to expedite processing of their FDHs' employment visas. On the other hand, FDHs whose previous contracts have been terminated owing to various reasons also wish to resume employment as soon as possible to make ends meet. As a measure to facilitate both parties, ImmD adopts a flexible approach in handling the requirement imposed on FDHs that they have to return to their places of domicile upon termination of their contracts.
ImmD is concerned about possible abuse of premature contract termination arrangements by FDHs, and has adopted a corresponding measure to address the issue by enhancing the assessment of employment visa applications of FDHs who change employers repeatedly. Under the new measure, ImmD will, in assessing the employment visa applications of FDHs, closely scrutinise their case details such as the number of and reasons for premature contract termination within 12 months with a view to detecting any abuse of the arrangements for premature contract termination. If ImmD suspects that there is abuse, the application will be refused. Also, if it is found that the premature contract termination is due to the employer's non-compliance with contractual terms or abuse/exploitation of FDHs, future applications for the employment of FDHs from these employers will be refused. In the past three months or so, ImmD has refused 75 employment visa applications which were suspected to involve abuse of the arrangements for premature termination of contract. ImmD believes that the new measure will help deter such abuse and will review its effectiveness from time to time.
(b) The Labour Department (LD) has been undertaking various promotional activities, which include producing a leaflet specifically for FDH employers, producing practical guides for employment of FDHs, staging roving exhibitions as well as organising talks and seminars etc., to inform the public including FDH employers on issues relating to employment of FDH so as to promote FDH employers' awareness of their rights and obligations under EO. Should FDH employers have any questions, they are welcome to call LD's hotline at 2717 1771 or visit the offices of LD's Labour Relations Division in person for enquiry and assistance.
(c) In the past five years (i.e., from January 2009 to the end of September 2013), the Employment Agencies Administration (EAA) of LD had received 432 complaints against employment agencies (EAs) providing FDH placement service. Most of the complaints concern overcharging of commission to the FDHs while some others concern unlicensed operation of EAs. EAA would initiate investigation immediately upon receipt of complaints, and would take follow-up and prosecution actions as appropriate.
For complaints concerning the level of fees charged by an EA to employers or the EA's service quality, or when the EA is suspected of contravening the Trade Descriptions (Unfair Trade Practices)(Amendment) Ordinance 2012 (the Amendment Ordinance), EAA may refer the case to the Consumer Council and the Customs & Excise Department (the Customs) for follow-up.
EAA will also, through its regular communications with EAs and organising seminars, remind EAs to operate in compliance with the laws (including the EO, the Employment Agency Regulations and the Amendment Ordinance), and to provide accurate information and clear fees table and contract terms to employers and FDHs.
On the other hand, we have stepped up our publicity efforts to raise the employers' awareness of how they could better protect their rights. Employers are reminded from time to time to carefully select EAs with good standing and to obtain a service agreement before payment, stipulating clearly the relevant terms such as the FDH's information, date of availability, fees etc., from the EA, for future reference in case there is any dispute. The service agreement would also facilitate their seeking of appropriate redress if the EA breaches the agreed terms.
(d) Since the implementation of the Amendment Ordinance on July 19, 2013, the Customs has received three complaints against EAs carrying on FDH business. The complaints concern the provision of a suspected false body examination report of a domestic helper, the provision of false information on the working experience and skills of a domestic helper, and the failure of a domestic helper to carry out the job duties as described by the EA respectively. The complaint involving the use of forged document is being investigated by the Police. The matters in the remaining two complaints occurred before the commencement of the Amendment Ordinance and hence fall outside the regulation of the Amendment Ordinance.
Ends/Wednesday, October 9, 2013
Issued at HKT 15:51
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