End discriminatory policies towards migrant domestic workers
Rob Connelly says balance is too skewed in favour of employers' rights
What would you think of a law that penalised you for changing your employer? What if you had paid the majority of the costs of your recruitment to an agency and were now being told that to resign would be unfair to your employer? Why do we countenance such discriminatory administrative policies towards migrant domestic workers, or foreign domestic helpers, as they are known to the government?
The job-hopping myth - that these women exploit the rules for cash - has been trotted out again recently to justify the discriminatory and punitive immigration policies towards migrant domestic workers. It's time to look at the facts.
Workers who terminate their employment contracts prematurely are not entitled to severance pay under the Employment Ordinance. They will only receive any outstanding salary for the period worked and return passage home. A worker who has no grounds to terminate the contract summarily has to give a month's notice or pay a month's wages in lieu of notice.
After terminating her contract, the worker has 14 days to find a new employer, at the end of which she has to leave Hong Kong, whether or not a new employer has been found. She will suffer loss of income for four to six weeks while waiting for the new visa, or even longer if she did not find an employer.
The economic case for job-hopping does not exist, and the suggestion that workers do so for the value of a one-way budget air ticket is laughable.
All the two-week rule does is penalise those workers who seek to leave bad employment situations by denying them freedom of contract. It creates a system of debt-bondage and servitude in the case of those still repaying high agency fees. This increases their vulnerability to excessive working hours and denial of rest days, inadequate accommodation, and even verbal, physical and sexual abuse.
Victims of abuse who remain in Hong Kong to pursue legal remedies are then further victimised by an immigration policy that effectively prevents them from changing employer until the action is concluded. Facing loss of income for six months or more and reliant on charities for food and overcrowded accommodation, many do not file a claim at all and those who do are often forced into early settlements.
The administration has demonstrably failed to strike a reasonable balance between the interests of the employers and the employees. A new scheme introduced last June scrutinises migrant domestic workers' applications for number of changes of employers and reasons for premature contract terminations within 12 months, with a view to detecting any abuse of the arrangements. Why isn't there an equivalent policy to prevent employers abusing the system?
Too many employers frequently change workers without cause, encouraged by "free replacement guarantees" from unscrupulous agents.
In any event, with the new administrative scheme already in place, the "two-week rule" is obsolete as well as harmful and should be abolished. If there are isolated cases of abuse, these can now be addressed without the need to deny the human rights of all.
Is there any reason why workers should not be given at least four to six weeks to find a new employer and allowed to change employer in Hong Kong unless there is clear evidence of abuse of the arrangements?
On Thursday, the Legco panel on manpower will meet to discuss the policy on migrant domestic workers. It is an area that demands urgent policy reform.
The difference between decent conditions of work or slavery-like conditions remains a question of luck for migrant domestic workers. Respect for human rights cannot be left to the will of employers.
Rob Connelly, a barrister, is legal adviser to the HK Helpers Campaign