By Cynthia TellezLast month, January 2017, the Labour Department released a booklet entitled The Code of Practice for Employment Agencies (CoP). Obviously, the purpose is to guide and regulate the practices of the recruitment agencies including those agencies engaged in the placement for work of foreign domestic workers.
In general, all that is written in the said booklet was taken from the Employment Ordinance. In other words, they were taken from already passed legislation. Of course the purpose of the Labour Department may have been to come up with an easy guide for all placement agencies and also for the general public, especially the worker-applicants.
In this article, we will only deal on clauses which are relevant to foreign domestic workers (FDWs). The Mission’s purpose in discussing this is for FDWs to be aware of this newly released Code of Practice and also, for prevention or forward action like collecting relevant evidences and keeping them for possible use in the event of any violation on the part of the agencies that affected them.
Let us discuss then some of the most important among the relevant clauses.
In the CoP, it is stipulated that the applicant (FDW) will only pay after the FDH is successfully placed or employed. Thus the payment will be taken from their first month salary. We know for a fact that this is not the case. In reality, anyone is required to pay first before anything else. And usually the payment is always more than 10% of the legally allowed placement fee. In reality too, no receipt is issued. And if ever, the agency will only put the amount equivalent to the 10% of the first month’s salary.
In the CoP, there is a clause about the agency being required to provide true, accurate and all information about the FDW to the employer and vice versa. Misleading information or not giving information at all is an offence on the part of the agency and if proven guilty will be meted with fine and imprisonment.
How is this relevant to FDW?
When applying for job, the agency is obliged by law to give to the applicant all the necessary information about the employer and,vice versa to the employer, all the necessary information about the applicant FDW. So, when already employed and you, the FDW, found out major information the agency did not provide, you can file complaints to the Labour Department through the Employment Agencies Administration (EAA).
Some example of this are:
The agency did not inform you that the elderly is sick of tuberculosis.
The information sheet only shows that there are only four in the family but in reality there are 8 in the family including extended family members.
That there is privacy in the place of the house that you will sleep. But in reality you sleep in a folding bed in the living room or kitchen etc.
These are but some of the examples. But beforehand, it would be better if you can get a copy of the information on the employer provided by the agency and keep a copy of it. Or if it is verbal, then list down all the information provided by the agency. This is for your own benefit.
Employment agencies (EA) shall not aid or abet job-seekers or employers to breach the job-seekers’ conditions of stay in Hong Kong; otherwise the EAs concerned shall be held liable for an offence, subject to a maximum penalty of a fine of $50,000 and imprisonment for two years.
This is related to FDW being required to work in the office, shops or other house of relatives of employer. Definitely the EAs will not put this in writing. But they may verbally tell this to you as part of the requirement of the employer. Of course it would be better if somebody is with you to witness. But in the absence of a witness, better get the name of the staff or whoever gave you the verbal information/requirement, the date, time and place. List this down in your diary.
According to Employment Ordinance, employers must pay their employees on time and not deduct wages unlawfully. EAs shall not aid or abet employers to underpay their employees, or make unlawful deduction of wages. An employer who fails to pay wages to an employee on time commits an offence and is liable, upon conviction, to a maximum penalty of a fine of $350,000 and imprisonment for three years. Making unlawful deduction from wages of an employeeis also an offence and shall be liable to a maximum penalty of a fine of $100,000 and imprisonment for one year. EAs or any persons aiding or abetting the commission of such offences shall be guilty of the like offence and be liable to the same penalty.
This is another relevant Clause in the CoP. Example of this is when the EA is pressuring the employer to deduct monthly from the salary as payment for the placement fee. It may appear that the payment is for loan (which in reality is a fraudulent loan because the amount of loan all went directly to the agency as payment. There are 3 possible areas of violation here.
The EA fee is a maximum of 10% of the monthly wage of FDW only. So be sure to keep all pieces of evidence for use in complaining or filing a case against the EA.
The deduction from wages:the Employment Ordinance prohibits deduction of more than ¼ from monthly wage.
Assuming that the loan is legal or legitimate, the employer cannot act as collector of any loan company. Thus, the agency cannot force the employer to automatically deduct from the monthly wage of the FDWtogive to the loan company.
These are the clauses in the CoP which we think is relevant to FDWs. But again, evidences or witnesses are a must in order for the case to succeed. Remember also that in criminal cases, in order to convict somebody, the case has to be proven beyond reasonable doubt.
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This is the monthly column from the Mission for Migrant Workers, an institution that has been serving the needs of migrant workers in Hong Kong for over 31 years. The Mission, headed by its general manager, Cynthia Tellez, assists migrant workers who are in distress, and focuses its efforts on crisis intervention and prevention through migrant empowerment. Mission has its offices at St John’s Cathedral on Garden Road, Central, and may be reached through tel. no. 2522 8264.
