By Daisy C.L. Mandap
The past two weeks produced both good and bad news for our
migrant workers.
First, the good news.
Hong Kong legislators finally passed a law that prescribes a prison term
of up to three years for employment agency operators who commit either one of
the two grievous sins: overcharging a job seeker, or operating without a license.
What’s more, the maximum fine for either offence was raised
a whopping seven-fold, from $50,000 to $350,000.
This should put an end to the past anomaly of recruiters
being fined a fraction of what they had collected from their applicants that
they could virtually laugh their way out of a labour prosecution.
Also, the new measure makes it clear that yes, labour
officers do have jurisdiction over people who do not bother to get licensed
before offering all sorts of jobs to our workers.
In the past, we used to get shocked when labour officers
would tell us that they could not go after an illegal recruiter because this
person was not licensed by them. Then, when we’d try to help bring the matter
to the police, we would be told they had no jurisdiction over the case either.
This caused us a lot of frustration, and even more grief, to
victims of recruiters who must have realized that the easiest way to avoid liability
is to simply duck from the sight of law enforcers.
Another heartening measure, though not entirely
satisfactory, is the extension of the prescription period for filing a case
against a rogue agency, from six months to 12 months.
We have long argued against this provision, as it allowed
some of the most notorious recruiters hereabouts escape liability. All they had
to do was to make the job applicant wait for at least six months for the
placement that never came, or stagger the illicit payment to beyond this prescribed
term, to escape prosecution.
All told, the new measures lend considerable teeth to the
effort to protect migrant workers from unscrupulous recruiters.
Now, for the bad news. Just five days after these tough new
laws were passed, a High Court judge came up with a bummer. He said the
15-year-old policy of making foreign domestic workers live with their employers
could not be assailed in court.
Among his reasons were: 1) a maid from overseas can choose
not to come here if she does not want to live with her employer; 2) it was
really the intention of policymakers to make live-in mandatory but decided to
make this clear only in 2003 when they included this requirement in the
standard employment contract; 3) making workers live in close proximity to
their employers does not heighten their vulnerability; meaning an abuser will
always be an abuser, whether near or far away.
It does not take much effort to see how narrow-minded, even
arrogant, this kind of approach to finding a solution to the long-standing
problem of migrant workers being left vulnerable by making them live with their
employers 24 hours a day, 6 days a week.
By asking them to uproot themselves and come here to do the
work that most locals shun, the government has the responsibility to ensure
that they are well protected, not just in terms of salary, but also insofar as
their health and welfare is concerned.
And yet, migrants are not even asking for the total
scrapping of the live-in arrangement, but simply to make it an option. This is
just to ensure that some of them are spared the indignity of being made to
sleep in all sorts of unimaginable places like tiny cubicles, storage rooms,
common areas such as living rooms and kitchens, and even toilets.
When even a decent sleeping place is denied a migrant worker
who is on call practically all day, shouldn’t we protest? When their work
contract does not even stipulate the number of hours they should be working,
shouldn’t we at least ensure that they have their own place where they can rest
after a hard days’ work?
Is it too much to ask to allow them to live a bit more
comfortably, just because they agreed to take on a job deemed lowly by many?
An appeal is definitely worth looking into. Until then, we
should not stop fighting for what is right, and just, for our migrant workers.
