LCQ16: Foreign domestic helpers
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Question:
Regarding the protection of the labour rights and interests of foreign domestic helpers (FDHs) and the regulation of intermediaries for FDHs (intermediaries), will the Government inform this Council:
(1) of the number of FDHs granted employment visas in the past two years to work in Hong Kong, with a breakdown by their nationality;
(2) of the number of complaints or requests for assistance received by the authorities in the past two years concerning FDHs being subjected to violence by their employers or family members of their employers; among such cases, of the respective numbers of those which were (i) initiated by the FDHs, (ii) referred by intermediaries, and (iii) referred by other persons;
(3) of the number of cases in which the authorities instituted in the past two years prosecutions against employers of FDHs or family members of such employers for allegedly subjecting their FDHs to violence, with a breakdown by the relationship between the defendants and the FDHs in such cases; the penalties generally imposed by the court on the convicted persons;
(4) of the number of complaints or requests for assistance received by the authorities in the past three years concerning FDHs who had their wages deducted or who were underpaid by their employers; the number of cases in which the employers were convicted as a result, and the penalties generally imposed by the court on the convicted persons;
(5) of the current number of licensed intermediaries across the territory; last year, the respective numbers of regular and surprise inspections of intermediaries carried out by the authorities, as well as the respective numbers of cases in which investigations were conducted and prosecutions were instituted in response to complaints; the penalties generally imposed last year by the court on the convicted intermediaries or their persons in charge; the number of cases in which intermediaries were convicted last year for overcharging of intermediary fees from FDHs;
(6) given that intermediaries are currently liable to a maximum fine of $50,000 for unlicensed operation or overcharging of commission from FDHs, whether the authorities will consider increasing the relevant penalties to enhance the deterrent effect; and
(7) whether the authorities have examined ways to enhance publicity on the Code of Practice for Employment Agencies promulgated on the 13th of last month, so as to raise FDHs' awareness of their own labour rights and interests?
Reply:
President,
Having consulted the Security Bureau, I provide a consolidated reply to the question raised by the Hon Andrew Wan as follows:
(1) According to statistics provided by the Immigration Department, the numbers of employment visas approved for foreign domestic helpers (FDHs) with breakdown by nationality in 2015 and 2016 are at Annex A.
(2) and (3) In 2015 and 2016, the Police respectively received 29 and 19 reports of wounding and serious assault cases involving FDHs being attacked by their employers. The Police also received respectively in these two years 38 and 59 reports of wounding and serious assault cases involving FDHs being attacked by people other than their employers. The Police do not have other statistical breakdown as mentioned in the question.
(4) The Labour Department (LD) has been publicising through various channels, including broadcasting radio announcement in public interest (API), staging information kiosks to screen publicity videos and producing pamphlets for wide distribution, to ensure FDHs and employers are fully aware that unlawful deduction and underpayment of wages is a serious offence. LD has also been participating in the welcome programmes organised by the relevant Consulates-General for newly-arrived FDHs to disseminate the above message with a view to enhancing their awareness of employment rights and channels of making complaints.
Under the Employment Ordinance (EO) (Cap 57), an employer commits an offence if he/she wilfully and without reasonable excuse fails to pay wages to an employee on time, and shall be liable, upon conviction, to a maximum fine of $350,000 and imprisonment for three years. FDHs should file a complaint with LD if they feel aggrieved. LD will take follow-up actions promptly upon receipt of complaints. If there is sufficient evidence and the relevant FDH is willing to act as prosecution witness, prosecution will be taken out against the suspected law-defying employer. In the past three years, there were employers sentenced to imprisonment upon conviction of underpayment of wages. The numbers of claims by FDHs for deducted wages or underpayment of wages, FDH employers being prosecuted and convicted from 2014 to 2016 are at Annex B.
(5) to (7) According to Part XII of EO and the Employment Agency Regulations (EAR) (Cap. 57A), anyone who wishes to operate an employment agency (EA) (including those providing placement service for FDHs (FDH EA)) has to obtain a licence issued by the Commissioner for Labour (C for L) in advance. The aforementioned laws also stipulate that for each job placement, EAs are not allowed to receive from job-seekers (irrespective of whether they are local job-seekers or FDHs) commission of an amount exceeding 10 per cent of the job-seeker's first month's wages upon successful placement. EAs operate without a licence or overcharge job-seekers would commit an offence and be liable to a maximum fine of $50,000 upon conviction.
As of end-2016, there were 1 405 licensed FDH EAs in Hong Kong. LD regulates EAs through conducting inspections, investigating complaints and instituting prosecutions. It takes stringent enforcement actions against EAs which have violated EO and EAR. Upon receipt of complaints, LD will conduct investigations; prosecution will be instituted if there is sufficient evidence and the FDH concerned is willing to act as prosecution witness. LD has since 2014 stepped up inspections to EAs by increasing the annual inspection target from 1 300 to 1 800 (an increase of 38 per cent). The numbers of inspections conducted, complaints investigated and convictions secured by LD, and the related average fine imposed against EAs in 2016 are set out in Annex C.
To promote professionalism and quality service in the EA industry, LD promulgated the Code of Practice for Employment Agencies (the Code) on January 13, 2017. The Code highlights the salient legislative requirements and sets out the minimum standards which C for L expects of EA licensees, some of which are particularly relevant to EAs providing placement service for FDHs. These include, for example, maintaining transparency in business operations, drawing up service agreements with job-seekers and with employers, providing payment receipts, promoting job-seekers' and employers' awareness of their rights and obligations (including provision of sample wage receipt to facilitate FDHs and their employers for record-keeping or perusal as and when necessary) and avoiding involvement in financial affairs of job-seekers. EA operators must comply with the statutory requirements and standards set out in the Code, as this is one of the important factors that C for L will take into account when assessing if the licensee is a fit and proper person to operate an EA under section 53(1)(c)(v) of EO.
Upon the promulgation of the Code, LD has issued letters to all EAs to advise them to comply with the statutory requirements and standards as listed in the Code. To enhance public awareness of the Code, LD has also put in place a series of publicity and promotional efforts, including issuing press release, broadcasting radio API, producing posters and web banners, etc.. At the same time, LD has launched the Employment Agencies Portal (the EA Portal) (www.eaa.labour.gov.hk), which is a dedicated website to provide the public with information related to regulations of EAs in Hong Kong (including the Code) and a built-in search function so that members of the public can easily check if an EA has a valid licence.
LD plans to introduce an amendment bill in the second quarter of this year to provide a legal basis for the Code and to increase the maximum penalty on EAs operating without a licence or overcharging job-seekers to $350,000 and imprisonment for three years to attain a greater deterrent effect.
Ends/Wednesday, February 15, 2017
Issued at HKT 17:11
Issued at HKT 17:11
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