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Following is a question by the Hon Paul Tse Wai-chun and a written reply by the Secretary for Security, Mr Lai Tung-kwok, in the Legislative Council today (May 25):
Question:
Under the existing legislation, any person operating an employment agency (EA) in Hong Kong must hold an EA licence (or a certificate of exemption) issued by the Labour Department (LD). Moreover, certain countries exporting foreign domestic helpers (FDHs) require that EAs providing employment services for FDHs (FDH-EAs) must hold a business accreditation certificate (BAC) issued by these countries before such FDH-EAs may arrange FDHs from these countries to come and work in Hong Kong. However, it has been reported that currently some 70 per cent of FDH-EAs do not have the relevant BACs and merely link up with those EAs with BACs for importing FDHs, resulting in substantial variation in the quality of FDHs provided. For example, it has been reported that certain FDH-EAs recommended to prospective employers FDHs who were pregnant, addicted to drugs or heavily in debt, or who hid knives under their beds. On the other hand, some FDHs deliberately create problems for their current employers hoping that their employers terminate their contracts prematurely so that they can change employers (commonly known as "job-hopping"), and this problem has become increasingly rampant. Also, it has been reported that recently the number of cases of FDHs lodging, on expiry of their contracts, torture/non-refoulement claims under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in an attempt to continue to stay in Hong Kong has increased sharply. In this connection, will the Government inform this Council:
(1) of the number of complaints, received by the LD and the Consumer Council, involving FDH-EAs not holding a licence issued by the LD and/or a BAC issued by the FDH exporting country concerned, details of the follow-up actions taken by them, and among such cases, the number of those in which prosecutions were instituted by the LD, since the beginning of this year;
(2) of the protection, provided under the existing legislation and mechanism for importing FDHs, for those employers who were misled by some FDH-EAs which falsely claimed to be holding the relevant licence/BAC and thus unfortunately hired FDHs who were pregnant, addicted to drugs, heavily in debt or with an intention of job-hopping;
(3) of the number of cases of FDHs suspected of job-hopping uncovered and the number of FDHs' applications for change of employers rejected, by the Immigration Department (ImmD), as well as the number of FDHs who lodged torture/non-refoulement claims immediately after their applications for change of employers had been rejected, since the beginning of 2014; the details of such claims and the follow-up actions taken by the authorities; and
(4) given that the report published by the Audit Commission on April 5 this year has pointed out that ImmD needs to strengthen follow-up actions on suspected FDH job-hoppers, of those recommendations for improvement put forward by the Audit Commission that ImmD has so far implemented, and the new policies and measures the ImmD has put in place to deter FDHs from job-hopping?
Reply:
President,
The reply to the Hon Paul Tse Wai-chun's question, in consultation with the relevant bureau, departments and organisation, is as follows:
(1) and(2) Pursuant to Part XII of the Employment Ordinance (EO) (Cap 57) and the Employment Agency Regulations (EAR) (Cap 57A), any establishment or person who operates an employment agency (EA) in Hong Kong must obtain an EA licence issued by the Labour Department (LD). The law does not require such establishment or person to be accredited by other countries. All EAs in Hong Kong, irrespective of whether they have been accredited by other countries, must comply with all laws of Hong Kong including the EO and the EAR.
The LD is responsible for enforcing the EO and the EAR. Upon receipt of complaints concerning operation of an EA without a valid licence, the LD will conduct prompt investigations, and institute prosecution if there is sufficient evidence. In 2015, one EA was convicted of unlicensed operation. Up to end-April this year, the LD received 13 complaints of unlicensed operation by EAs placing foreign domestic helpers (FDHs), and relevant investigation is underway. The Consumer Council does not maintain the statistics mentioned in the question.
To promote professionalism and quality service in the EA industry, the LD has promulgated and is conducting a consultation on the draft Code of Practice for Employment Agencies (CoP). Amongst the standards that are set out in the CoP, EAs are expected to check the accuracy of the information provided by both job-seekers and employers; maintain transparency in business operations, set out the service terms, fees schedules and complaint procedures, etc. The draft CoP also states that EAs are expected to draw up service agreements with employers and provide payment receipts, as well as provide employment contract to the contracting parties. After the end of the consultation period on June 17 this year, the LD will consider the views collected to refine the CoP, and publish for EAs to follow. If EAs fail to comply with any provisions in the CoP, the LD may issue warning letters to EAs for rectifications. The Commissioner for Labour may also consider all relevant factors, including amongst others the EAs' compliance with the CoP, in deciding to refuse to renew or to revoke the licence of EAs in accordance with the relevant provisions of the EO.
(3) Currently, there are over 340 000 FDHs working in Hong Kong. Most of them change to a new employer or renew contract with the same employer only after the completion of a contract. However, to tackle suspected abuse of the arrangement for premature termination of contracts for change of employers by individual FDHs, since June 2013, the Immigration Department (ImmD) has set up a special duties team to strengthen the assessment of new visa applications from FDHs who have a record of premature termination of contracts twice or more in the past 12 months with a view to stepping up actions against "job-hopping". From January 2014 to April 2016, The ImmD vetted a total of 6 668 employment visa applications from FDHs suspected of "job-hopping", and refused 519 of them upon scrutiny. A total of 680 applications were withdrawn or could not be processed further, i.e. the employers or applicants were unable to provide further documents or information to support the applications.
Since the commencement of the Unified Screening Mechanism in March 2014, the numbers of non-refoulement claims lodged by former FDHs received by the ImmD are as follows:
Year No. of claims Overall % of the
lodged by no. of total no. of
former FDHs claims claims
---- ------------- ------- ------------
2014 748 4 634 16.1%
(Mar-Dec)
2015 480 5 053 9.5%
2016 149 1 515 9.8%
(Jan-Apr)
The ImmD does not maintain statistics of claims lodged by former FDHs after their applications for change of employers had been rejected.
(4) In response to the Audit recommendations, the ImmD has implemented a series of measures to further combat "job-hopping", including improving workflow, increasing manpower to handle cases, and issuing clear operational guidelines to staff which set out specific instructions on contacting the former employers or FDHs, checking their relevant records (including the reasons the parties terminated the contract prematurely), etc. The ImmD will monitor the situation and review the effectiveness of the measures in due course.
Ends/Wednesday, May 25, 2016
Issued at HKT 18:05
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