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Following is a question by Hon Lee Cheuk-yan and a written reply by the Secretary for Labour and Welfare, Mr Matthew Cheung Kin-chung, in the Legislative Council today (May 6):
Question:
It has been reported that on March 11 this year, an Indonesian domestic helper awaiting her new employment visa was hit by a concrete slab fallen from heights while sleeping under a canvas canopy erected on the podium of a flat, and she died several days later. The flat where the incident occurred is a temporary hostel provided for foreign domestic helpers (FDHs) by an FDH intermediary. In connection with the monitoring of such intermediaries and the temporary hostels provided by them, will the Government inform this Council:
(1) as it has been reported that the FDH concerned had entered into an employment contract with her new employer before the incident, but lived temporarily in the hostel at the employer's request, whether the authorities have conducted investigations in this respect, including whether the employer has breached the law; if they have, of the results;
(2) whether it knows the respective numbers of temporary hostels and bedspaces provided for FDHs by intermediaries in each of the past five years;
(3) whether the authorities have monitored the provision of temporary hostels for FDHs by intermediaries; if they have, of the number of inspections on such hostels conducted by the relevant departments in each of the past five years; if not, whether the authorities will monitor the provision of such hostels;
(4) as it has recently been reported that the hygiene conditions of some temporary hostels are poor, whether the authorities have conducted investigations in this respect; if they have, whether cases of contravention of the law have been found; if such cases have been found, of the legislation and penalties concerned;
(5) whether the authorities have conducted investigations into the charging of fees by intermediaries on FDHs temporarily living in their hostels; if they have, whether cases of contravention of the law have been found; if such cases have been found, of the legislation and penalties concerned; and
(6) of the respective numbers of regular and surprise inspections on the operation of intermediaries conducted by the Labour Department and the respective numbers of cases in which investigations were conducted and prosecutions were instituted in response to complaints, in each of the past five years, as well as the respective numbers of intermediaries involved in such cases?
Reply:
President,
Having consulted relevant bureaux and departments, I set out below my consolidated reply to the question raised by Hon Lee Cheuk-yan:
Under the prevailing policy, any employer who wishes to employ a foreign domestic helper (FDH) must enter into a Standard Employment Contract (SEC) with the FDH. Clause 3 of SEC provides that an FDH shall work and reside in the employer's residence in Hong Kong as stated in SEC throughout the employment period. Moreover, the employer and FDH are required to undertake in the relevant employment visa application forms that the FDH will reside in the employer's residence as stated in SEC.
If employers and/or FDHs are in breach of any of their undertakings in SEC and the relevant application forms (e.g. the FDH resides in an address other than the one specified in SEC during the employment), the Immigration Department (ImmD) will take such conduct into consideration when assessing the employer's future applications for employing FDHs and the FDH's future employment visa or extension of stay applications, and may refuse such applications. Employers and/or FDHs who furnish false information in the course of an application may contravene the Immigration Ordinance (Cap. 115). Under the prevailing laws, a person who makes false statement to an immigration officer commits an offence and is liable to prosecution and, upon conviction, to a maximum fine of $150,000 and imprisonment for 14 years. Aiders and abettors may also be prosecuted.
According to Part XII of the Employment Ordinance (EO) (Cap. 57) and the Employment Agency Regulations (EAR) (Cap. 57A), anyone who wishes to run an employment agency (EA) must first apply for a licence or a certificate of exemption. EO and EAR have not provided for the regulation of the boarding houses or other facilities operated by the licensee. There is no requirement under the prevailing laws for EAs to provide boarding houses to job-seekers (including FDHs). The Labour Department (LD) does not have information regarding the boarding houses or bedspaces for FDHs provided by EAs.
An occupier, proprietor or tenant of any premises who provides sleeping accommodation at a fee for a person presenting himself or herself shall obtain a hotel and guesthouse licence under the Hotel and Guesthouse Accommodation Ordinance (HAGAO) (Cap. 349) unless all accommodation in the premises is provided with a tenancy period of 28 consecutive days or more for each letting. Any flat in which there are 12 or more bedspaces used or intended to be used as sleeping accommodation for individuals under rental agreements shall obtain a bedspace apartment licence under the Bedspace Apartments Ordinance (BAO) (Cap. 447). The purpose of HAGAO and BAO is to ensure that premises intended to be used as hotels, guesthouses or bedspace apartments meet the prescribed standards in respect of building structure, fire safety as well as health and hygiene specified in the Buildings Ordinance and the Fire Services Ordinance.
Whether individual premises fall within the ambit of HAGAO or BAO depends on the mode of operation and the actual circumstances of each case and cannot be generalised. According to the record of the Office of the Licensing Authority (OLA) under the Home Affairs Department, OLA has not received any related complaints or reports. If any such complaints or reports are received, OLA will investigate and follow up the cases in accordance with the established procedures, and instigate prosecution should there be sufficient evidence. Operating an unlicensed hotel or guesthouse or an unlicensed bedspace apartment is a criminal offence, and is liable, on conviction, to a maximum fine of $200,000 and $100,000 respectively and imprisonment for 2 years, as well as imposition of a criminal record.
As regards the fees that EAs may charge job-seekers (including FDHs), EO and EAR provide that EAs shall not, directly or indirectly, receive from the job-seeker (including FDH) on account of having obtained, or in connection with obtaining or seeking to obtain, employment for him/her any reward of any kind; or any payment or other advantage in respect of expenses or otherwise, except the prescribed commission. At present, the prescribed commission is an amount not exceeding a sum equal to 10% of the first month's wages received by the job-seeker (including FDH) after he/she has been placed in employment by the EA. Should an FDH be charged by an EA for a fee over the aforementioned amount, he/she may report the case to LD. LD will initiate investigation promptly upon receipt of any such complaint, and will take out prosecution where there is sufficient evidence. The maximum penalty upon conviction is a fine of $50,000. The Commissioner for Labour will also consider to revoke, or to refuse to renew, the licence of the convicted EA.
In the past five years, the number of inspections conducted by LD each year for enforcing EO and EAR (including regular and surprise inspections), the number of complaint investigations conducted, and the number of EAs that were successfully prosecuted are set out in Table 1.
Ends/Wednesday, May 6, 2015
Issued at HKT 12:41
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