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Light and darkness

15 March 2018

By Daisy Catherine 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 five-fold, from $50,000 to $250,000.

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.

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