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HK Labour should step up enforcement of work contracts

15 April 2016

In Hong Kong, it is a fact that even when employment-related matters should be the responsibility of the HK Labour Department, any complaint lodged with them that cannot be translated into Hong Kong dollars is considered a waste of time.
The Labour Department’s Labour Relations Division cannot deal extensively on matters such as accommodation problems, long working hours, insufficient food and setting of curfew for foreign domestic workers. Not even the so-called endorsement issues, which now fall under “illegal work” and should thus be considered as gross violations of the contract, can be dealt with by the Labour Department.
People under the category of foreign domestic worker (FDH or FDW) are first and foremost considered aliens whose conditions of stay are determined by the Immigration Department. While anything that is in the contract should be within the responsibility of the Labour Department, the truth is that all policies pertaining to the FDW’s work and conditions while in Hong Kong are still controlled and decided upon by the Immigration Department.
Both departments, however, are silent when it comes to violations of the employment contract that cannot be translated into monetary claims. This is most unfortunate because these violations constitute as the biggest problems of FDWs.
To illustrate:
1. Last year alone, cases of women sleeping on the floor, in the corridor, in the sitting room, in the dining room, even under the television set, were not uncommon. Despite widespread protests, the FDWs have not received a relief from the problem. In one case, even the High Court described a pull-out bed in the kitchen “decent” even after it was disclosed that the man in the household would cook and eat his meals in the kitchen at 2:00 a.m. everyday. Clearly, the High Court did not see the need for privacy of the female FDW who was made to sleep in the kitchen, given those conditions. According to the employment contract, the basic accommodation for FDWs is a room with basic facilities: bed, water and lighting supply; toilet and bathing facilities; blankets or quilts, pillows and wardrobe. The room can be shared with the children of the employer, although not with another adult or teenage kids of the opposite sex. An official definition of “privacy” remains a contention.
2. On the issue of long working hours, one officer of the Labor Department in a public hearing on the Statutory Minimum Wage (SMW) said “I leave the house for work and return after 10-12 hours. I still cannot mind the kids because I am exhausted from work. But say it is 12 hours, will I pay her 12 hours of work because the minimum wage is on an hourly basis?  How sure am I that my maid is working when I am in the office?” This was one of the arguments used to prevent FDWs from being included in the SMW.
3. When one complains of insufficient food, we usually ask what it means because we know that the food requirements of people vary. But many of those who complain about this say that insufficient food usually means leftover food, limited separate portion, or being provided with whatever is left on the serving plate because often, an FDW eats after everyone is done. Another usual example is being given two slices of bread a day or nothing at all for breakfast because the other people in the household do not eat breakfast at home. Some odd examples we encountered included clients who complained about the refrigerator being empty, or its contents being counted by their employer who instructs the FDW not to touch anything that is in there.
4. A continuous 24-hour day-off a week is cut by:
            a. A curfew time that is normally set between 6:00pm and 9:00pm.  Whatever time is set constitutes a violation of the continuous 24-hour day-off a week provided in the contract. Officially, a day-off cannot be exchanged for money. But given the curfew restrictions, the domestic worker ends up being exploited many times over.
           b. A tricky arrangement like being told that the time she slept the night before her day-off, was the start of her 24-hour day-off.
           c. Telling the FDW that she could be out for only half a day.
           d. Demanding an FDW to finish chores before leaving in the morning and resuming duty upon return in the evening. This is a common violation.
      5. Being forced to do “Illegal work”.
How do you then bring these matters to the attention of your employer?
Many just endure them to “keep the job” though it is not a guarantee. If you say nothing, it can simply mean it is acceptable to you. Many are frustrated because they expect employers to know since they must have read the contract. They must but many don’t, just like many of us. If you think that they didn’t read and study the contract, it becomes your responsibility to call their attention to the violation in a gentle manner. Do not presume that they are shortchanging you purposely. Give them the benefit of the doubt unless you have already proved otherwise.
This is why it is important to:
a. Keep a diary of your daily activities and daily chores no matter how repetitive they can be.
b. Hold a regular session with your employer and share with them the developments in the house, in your work, or with the kids. Make these sessions a time to assess the week or the month’s work. If they are too busy to do this, write to them to update them.
c. Develop a system of communications. This is very important to avoid misinterpretations. You may want to have a Notice Board in the kitchen for reminders for both you and the other members of the household. It works well for some.
d. Language may be an issue. Try your best to understand what they mean. You may want to ask a friend to do translation work for you but it will be much better to learn the language.
If none of the above works for you, consider writing to the Immigration Department. But it would be best to consult service providers like the Mission first before doing so to avoid giving unnecessary and irrelevant information. Do not hesitate to bring these to department's attention because they will not see it as significant if it is just said, and no official information is filed for their record.

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