Recently, the Wen Wei Po newspaper reported that unidentified nursing homes and unlicensed employment agencies in Hong Kong had allegedly engaged in conspiracies to defraud Chinese mainland caregivers by deducting their salaries and requiring them to work overtime. The report has raised a storm of controversy.
By Chystie Lam and Kacee Ting Wong
Because of the rapid aging of our population, the demographic shifts have created strong community demand for caregivers. The Hong Kong Special Administrative Region government needs to break the constraints of an unbalanced focus on regulating employment agencies as a way to facilitate the importation of workers, such as foreign domestic helpers (FDHs). Complying with the popularity of the “aging in place” concept, the government has made efforts to promote homecare over recent years. But more attention should be given to the improvement of policies and an increase in capital and manpower. There is also room for improving service consultation. Prompt action should be given serious consideration. Our think tank is of the view that the government should leverage our advantages and uniqueness, instead of limiting the space of the development of employment agencies.
During the COVID-19 pandemic, FDHs faced different types of problems in Hong Kong, including an increased workload, fewer breaks, and the risk of getting fired because of their refusal to stay home on rest days. Employers are also confronted with the problems of job hopping and the failure of some FDHs to report for duty on schedule.
Hong Kong society has witnessed a rise in concern over the rights of FDHs because of their growing numbers, with increasing recognition that FDHs should learn about their rights through various channels. Employers, on the other hand, lack these kinds of support. They lack a full understanding of the Employment Ordinance (EO), the Immigration Ordinance, the Occupational Safety and Health Ordinance, the Personal Data (Privacy) Ordinance, the common law concept of duty of care, and various anti-discrimination ordinances.
Generally speaking, FDHs must find new employment and obtain an approved work visa within two weeks of the expiration or premature termination of their employment contracts
The long-standing contradictions between employers and FDHs, together with the widely reported cases of multilayer exploitation of imported caregivers, have shown that these matters get entangled in a complicated web of relationships with cross-border enterprises. In the following discussion, we try to examine whether the Code of Practice (COP) will provide a long-term solutions to these festering cross-border problems.
The government relies heavily on Part XII of the EO (CAP 57) and the Employment Agencies Regulations (CAP 57A) to regulate employment agencies in the city. From 2014 to 2016, complaints against employment agencies registered an increase. In response, the government introduced the Code of Practice for these agencies, focusing on statutory requirements and the minimum standards of services expected by the Labor Department.
According to Section 50(1) of the EO, an employment agency is defined as a person who operates a business the purpose of which is a) to obtain employment for another person; and b) to supply the labor of another person to an employer, whether or not the person who operates the business will derive any pecuniary or other material advantage from either the employer or such other person.
Unconventionally, an employment agency is now informally required to wear multiple hats, including helping FDHs to book quarantine hotels during the pandemic and playing the role of a travel agency or hostel manager. Charting their way through unknown territory, employment agencies have worked very hard to juggle these additional duties. Unable to deliver satisfactory results, they and other relevant parties are drowning in negative mindsets.
Additionally, employment agencies for FDHs are expected to provide mediation, translation of foreign languages, psychological counseling, vocational training, legal advice, and FDH-protecting services. All these services require professional knowledge in respective fields.
Concerning FDH-protecting services, it is contrary to common sense to impose additional duties on employment agencies to provide boarding facilities for FDHs. This is essentially the responsibility of hostels, and the Home Affairs Department should regulate these services.
Employers are responsible for providing accommodation for FDHs pursuant to local law. According to Clause 3 of the standard employment contract (ID407), a FDH is required to reside in the employer’s residence, which is a single flat stated in the employer’s address. Providing appropriate accommodation for FDHs is not only a responsibility of the employer, it is also an internationally recognized means to protect the rights of foreign workers.
Generally speaking, FDHs must find new employment and obtain an approved work visa within two weeks of the expiration or premature termination of their employment contracts. In some cases, FDHs may be granted an extension of stay. Therefore, FDHs are required to leave Hong Kong in accordance with the two-week rule or after the expiration of the newly granted extension, whichever is earlier. Unless there are exceptional circumstances, including the relocation of employer, migration, death or economic reasons that prevent an employer from performing the contract, the Immigration Department does not allow FDHs to find new employment during the course of the two-year contract. If FDHs succeed in finding new employment, they must leave Hong Kong and apply for a new work visa from the Immigration Department.
While finding new employment under the two-week rule, FDHs are allowed to stay in Hong Kong only as tourists. They reside in hostels during their short stay. It’s therefore a misnomer to call these hostels ‘boarding facilities for FDHs.’
The Labour Department has mistakenly placed “boarding facilities for FDHs” in the COP. Not only does it fail to solve the livelihood and environmental problems caused by the FDHs, it is also affecting the healthy development of employment agencies. The Labour Department has consistently made efforts to improve protection mechanisms for workers in order to live up to the expectations of foreign consulates.
The HKSAR, in compliance with international conventions, can give financial support to measures aimed at providing safe and healthy accommodation for workers who are affected by pollution or a dangerous environment.
In Singapore, the Ministry of Manpower and the Housing and Development Board have made joint efforts to provide accommodation for foreign workers. Two hundred thousand out of 1 million foreign workers are now living in 43 specially constructed hostels. With gymnasium facilities, every hostel can accommodate more than 1,000 workers. The accommodation fee varies in accordance with its location, facilities and mode of building. If employers fail to meet the statutory requirements laid down by the Occupational Safety and Health Division, they can rely on temporary hostels provided by the government.
The activities of employment agencies have become woven into the fabric of different economic sectors, affecting every part of the lives of residents. In his maiden Policy Address, Hong Kong Chief Executive John Lee Ka-chiu set out key performance indicators for attracting enterprises and talents. It’s taking too much out of the COP to solve these problems because they involve interaction between legal and labor protection policies.
The COP for Employment Agencies, which is laid down in Section 62A of the EO, aims at promoting the professional standards and quality of services of employment agencies. But the suggestions under the COP focus on job hopping, debt problems of FDHs, and the supervision of unlicensed hostels for FDHs. Failing to establish a clear foothold, the review cannot meet the public expectations of fairness and justice.
Because the import of foreign workers has a deep impact on our economy and people’s livelihoods, the government should lay a firm foundation for nurturing manpower and building a fair and just society. Such foundation is the key to sustainability and long-term prosperity and stability. It’s also in line with the ultimate aim of building a responsive government to meet public demands.
Chrystie Lam Haa-iu is director of labour and welfare affairs, Chinese Dream Think Tank, and founder of the Coalition of Global Home Service Sustainable Development.
Kacee Ting Wong is a barrister, part-time researcher of Shenzhen University Hong Kong and Macao Basic Law Research Center, and chairman of the Chinese Dream Think Tank.
Chinese Dream Think Tank is a non-profit Hong Kong-based organization working with skilled volunteers, experts and professionals who are passionate about telling the China story well.
*The views do not necessarily reflect those of China Daily. This article is reproduced by Kwun Media with the consent of China Daily.
香港特區政府規管職業介紹所（“EA”）的主要法律來源是《僱傭條例》（第 57 章）（“EO”）第 XII 部和《職業介紹所規例》（第57A 章）（“EAR”） 。於 2014-2016 間涉及外傭職業介紹所的投訴有所上升，特區政府逐於 2017 年 1 月為職業介紹所業界發佈實務守則，守則主要分為兩部份，分別列明營運職業介紹所時必須遵守的法定要求，及載述勞工處處長期望職業介紹所應達到的最低標準。
就《僱傭條例》第 50(1) 條，“職業介紹所”是指經營企業的人，其目的是為他人就業，或向僱主提供他人的勞動力，無論經營該企業的人是否會獲得任何來自僱主或其他人的金錢或其他物質利益。
根據香港法律，外籍家庭傭工的居住地點是由僱主負責，外傭必須在「標準僱傭合約」(ID 407)第 3 條列明的僱主住所工作和居住，僱主住址是指在一個地點的單一居所，而提供合適的住宿環境是僱主的責任之一，也是國際保護勞工權益的重要措施之一。
參考自新加坡的資料，當地的外勞宿舍由新加坡職業安全與健康局（Ministry of Manpower, MOM）和新加坡房屋發展局（Housing and Development Board, HDB）共同管理。新加坡的百萬外勞中，有 20萬人住在 43 個「專門建造宿舍」，每個宿舍可容納逾千人，還有健身
《僱傭條例》第 62A 條頒布的《職業介紹所實務守則》（實務守則）本是用以供業界依循，以促進職業介紹所業界的專業水平和服務質素為目標，現在最新修訂建議的出發點卻放在針對外傭無理多次轉工（坊間形容為「跳工」問題）、財務機構資格（外傭借貸問題）、監管外傭宿舍（非法旅館問題），與《僱傭條例》第62A 條有所違背外，新修訂後的落腳點亦模糊不清，這些根本未能滿足市民對於公平正義的基本追求。