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Following is a question by the Hon James Tien and a written reply by the Secretary for Security, Mr Lai Tung-kwok, in the Legislative Council today (January 7):
Question:
It has been reported that some foreign domestic helpers (FDHs), persuaded by intermediaries for FDHs (intermediaries), deliberately performed badly or displayed poor attitudes with the intent to make their employers terminate the contracts with them prematurely, so that they can change employers and obtain compensations of free passages to return to their places of domicile and one month's wages in lieu of notice, etc. (commonly known as "job-hopping"). These FDHs also exploited a loophole in the Immigration Ordinance (Cap. 115) by departing for Macao or the Mainland for only a short while and then re-entering Hong Kong to work for new employers. In this connection, will the Government inform this Council:
(1) given that since June 2013, the Immigration Department (ImmD) has tightened the scrutiny of employment visa applications from those FDHs who change employers repeatedly, of the number of applications suspected of job-hopping uncovered by ImmD each month since then, and among such cases, the respective numbers of those rejected and those not followed up by ImmD, as well as the number of applications withdrawn by applicants (set out in a table);
(2) whether it has assessed if it is maladministration on the part of ImmD for failure to strictly enforce, on the premise of facilitating the parties concerned, the requirement that FDHs have to return to their places of domicile before changing employers; if it has conducted such an assessment, of the details; if not, whether it will conduct such an assessment;
(3) of the number of cases uncovered by the authorities in the past five years in which intermediaries persuaded or assisted FDHs to engage in job-hopping, and how the authorities handled such cases;
(4) whether it has assessed if the Trade Descriptions Ordinance (Cap. 362) may be invoked to step up efforts to combat breaches by intermediaries, such as providing prospective employers with inaccurate information on FDHs;
(5) whether it has considered introducing a demerit point system for breaches by intermediaries and requiring the practitioners concerned to obtain a licence, so as to step up regulation of the industry; if it has, of the details; if not, the reasons for that;
(6) whether it will consider introducing a probation system for FDHs, under which employers who dismiss their FDHs during the probation period are not required to make payment in lieu of notice, and employers are required to settle intermediary charges in full only upon expiry of the probation period; if it will, of the details; if not, the reasons for that; and
(7) given that early last year, over 97 per cent of the FDHs in Hong Kong came from the Philippines and Indonesia, whether the authorities have put in place measures to further facilitate intermediaries to import FDHs from other countries so as to provide employers with more choices and reduce cases of job-hopping?
Reply:
President,
In consultation with the Labour and Welfare Bureau and the Commerce and Economic Development Bureau, the Administration's consolidated reply to the Member's question is set out below:
(1) Since June 2013, the Immigration Department (ImmD) has strengthened the assessment of employment visa applications of foreign domestic helpers (FDHs) who changed employers repeatedly. In assessing the employment visa applications of FDHs, ImmD will closely scrutinise the case details such as the number and reasons for premature contract termination within 12 months with a view to detecting any abuse of the arrangements for premature contract termination. As at December 31, 2014, ImmD has received around 155 000 employment visa applications from FDHs, of which 3 903 were suspected of "job-hopping", accounting for 2.5 per cent of all applications. After close scrutiny of these applications, ImmD refused 268 of them, while 287 applications were withdrawn by the applicant and no further action can be taken on 163 applications.
(2) Under the prevailing policy, change of employer applications from FDHs in Hong Kong within their two-year contract will normally not be approved except under exceptional circumstances, e.g. 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. An FDH who wishes to enter into an employment contract with a new employer must first return to his/her country of origin and then submit a new employment visa application to ImmD. However, in the light of the huge demand for FDHs in Hong Kong, ImmD often receives requests from employers in urgent need of FDHs to expedite the processing of their FDHs' employment visas. Furthermore, FDHs whose previous contracts have been terminated owing to various reasons also wish to return to Hong Kong and enter into employment with a new employer as soon as possible to make ends meet. As a measure to facilitate the parties concerned, in processing change of employer applications of FDHs, ImmD adopts a flexible approach in implementing the relevant requirements. In assessing employment visa applications for change of employer after premature contract termination, ImmD will ensure that the FDH in question has departed Hong Kong before an employment visa is issued. The above are arrangements made after considering the needs of employers and FDHs. ImmD will review the implementation of the arrangements from time to time.
(3) The Administration does not maintain the relevant statistics.
(4) The amended Trade Descriptions Ordinance (Cap. 362) prohibits traders from applying a false trade description to a service supplied or offered to be supplied to a consumer. The definition of "service" under the Ordinance includes the services of placing FDHs provided by local FDH employment agencies (EAs) to consumers, but does not include contractual rights arising under a contract of employment under the Employment Ordinance (Cap. 57).
Whether the practice of individual FDH EAs is in breach of the Trade Descriptions Ordinance has to be determined according to the facts of the case. The Customs and Excise Department (C&ED) as the enforcement department organises promotion and publicity programmes from time to time, including conducting seminars to strengthen the trade's understanding of the Ordinance and encourage compliance.
(5) The Labour Department (LD) regulates the operation of EAs through licensing, regular and surprise inspection, complaints investigation and prosecution. If an employer considers that an EA fails to deliver service as promised in their service agreement, or suspects that its trade practices have violated the Trade Description Ordinance, he/she can lodge a complaint with the Consumer Council or C&ED and seek assistance as appropriate.
Moreover, LD has stepped up inspections of EAs, strengthened liaison with the consulates of major FDH exporting countries for exchange of intelligence on improper EAs, and raised employers' awareness of the relevant laws through enhanced publicity and educational efforts. LD is also planning to issue a Code of Practice for the trade, so as to tighten the monitoring of EAs. The Government will review the effectiveness of above strategies and introduce suitable monitoring measures as appropriate.
(6) The proposal of setting a probation period for FDHs involves complicated issues. While a probation period may shorten the time required by an employer to terminate the employment contract with his/her FDH, the proposal may give rise to situations not favourable to the employer, and may not solve the problem of frequent job-hopping of FDHs. For instance, the FDH maintains the right to terminate the contract with the employer at any time within the probation period. In such circumstances, while the employer is still responsible for the concerned FDH's return passage to his/her place of domicile, the expenses for hiring a new FDH, including travel expenses, visa fee, and authentication fees, etc., would not be dispensed with. Therefore, we should proceed with care, and consensus between the employer and FDH groups on any proposed change should be secured before a decision is made.
In fact, a certain extent of flexibility has already been built in the existing Standard Employment Contract to both employers and FDHs by allowing either party to terminate the contract by giving the other party not less than one month's written notice or one month's wages in lieu of notice.
Regarding the proposal for the employer to settle the service charge with the EA only after the probation period, as the level of service charge and payment arrangement between the employer and the EA is an agreement between a service provider and its customer, these matters should be governed by market principles. To protect their consumer rights, we have all along advised employers to stipulate clearly the relevant terms including service standards, level of charge and refund arrangement, etc., before using an EA's service, and to obtain a service agreement with the EA. Such service agreement can serve as a future reference in case there is any dispute, and would also facilitate consumers' seeking of appropriate redress if the EA breaches the agreement subsequently.
(7) The existing entry arrangement for FDHs is applicable to applicants from most countries and regions. Owing to immigration control and security considerations, the current arrangement does not apply to Chinese residents of the Mainland, Macau Special Administrative Region and Taiwan, as well as nationals of Afghanistan, Cambodia, Cuba, Laos, the Democratic People's Republic of Korea, Nepal and Vietnam.
The Administration will review the visa policies from time to time, including those on importation of FDHs, to ensure they suit Hong Kong's actual circumstances and needs.
Ends/Wednesday, January 7, 2015
Issued at HKT 12:58
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