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On ‘finished contract’

26 March 2018

By Cynthia Tellez

Consider this situation:

A migrant domestic worker will be finishing her contract of employment but will not sign another contract. She informs her employer four months in advance to give the employer the chance to find a new domestic worker to replace her. After processing a contract with a new worker and this new worker arrives in Hong Kong before the contract with first worker is finished, the employer decides to terminate the contract with first worker who still has about 1.5 months left in her visa. Both employer and placement agency representative tell her it is “early release”, and that is still considered “finished contract”.

This is misleading.

Another employer decides to terminate the contract but promises the worker that they will not inform the Immigration Department about it until worker finds a prospective employer.  If you follow this, you may be at risk of staying beyond your visa or find yourself in what we oftentimes call “overstaying” situation.

Every year, the Mission For Migrant Workers assists cases as described above.   

There are also instances when the situation ends up with some kind of an understanding with the employer - or so they think - of an agreement. But in many such instances, the domestic workers also find themselves either overstaying their visa and/or are charged with false representation.

Overstaying happens when the date the employer notifies the Immigration Department of the termination of contract is earlier than what the worker declares in the Immigration. This will raise an alarm and an investigation will be called. The processing of your work contract will be delayed, and your prospective employer may even lose interest and find someone else with less complications.

False representation, meanwhile, is when after a thorough investigation, Immigration finds that one of parties had declared a wrong date of termination of the previous contract. If it happens to be the domestic worker, Immigration may just ask the worker to leave Hong Kong without filing charges against her/him (but she is marked),  or they may impose a penalty, or actually file charges. No one can tell what will happen because that is discretionary on the part of the Immigration officer. Their judgment of the facts is what counts the most.

It is therefore always important to stick to the truth. Keep in mind that no one has control over another person’s decision or another person’s promise like that of your employer. Do not put yourself in a risky situation even, or especially, if it is the agency that encourages you to do it. Once you have a criminal record, it can prevent you from enjoying many opportunities. So immediately inquire from service providers like the Mission For Migrant Workers (2522-8264) if in doubt.

Likewise, note that the Immigration has a pro forma (standard form) for termination of contracts. Whoever initiates the termination of contract should sign this form and ask the other party to countersign before sending it to the Immigration Department to properly inform them that the particular contract is prematurely terminated or has expired.

If this can help you, know that “early release” has something to do with the “Two-week Rule” that was imposed in April 1987. After several protest actions by organised migrant domestic workers groups, four Filipino domestic workers challenged the Immigration Department’s policy in court. While that Judicial Review case failed to remove the rule, four exceptional cases were adopted by the Immigration Department: (a) those whose contracts were terminated because of employer’s death, (b) employer’s relocation outside of Hong Kong, (c) employer’s financial incapacity, and (d) physical or sexual abuse of the worker by the employer.

The Immigration continues to cut a foreign  domestic worker’s visa to 14 days’ validity for any premature termination of contracts. The 14-day policy remains, and in truth, is sometimes applied even with the exceptional cases mentioned above.

The exemption being referred to, therefore, is only related to the processing of a new contract. If a case falls under any of the above exemptions, Clause 2.(C) of the Employment Contract applies immediately. But take note that the exemption will be applied only if within 14 days, the exempted applicant is able to present a new contract application with a prospective employer. Once the working visa is approved, s/he can start working for the new employer without having to exit Hong Kong first. Immigration will give the worker a year’s visa with a reminder to the employer that the worker has to exit Hong Kong within that first year’s visa before they give the visa for the second year.

Therefore, even if you fall under the exceptional cases when your contract is prematurely terminated, but in 14 days’ time you failed to find a prospective employer and failed to apply for a new employment contract, you still have to leave Hong Kong by the end of the 14 days. That means you lost the opportunity. Any stay beyond the 14 days’ requirement needs the prior approval of the Immigration Department. Depending on your circumstance, if valid, your extension of stay will be allowed such as when you have a case pending in the Labour Department, Police Department or any such government bodies. Otherwise, you may just be given an extension of one or two days with the same standard visa fee.

If you are still uncertain whether the remaining days left in your visa would be sufficient to consider your case as one with a finished contract:
1. Count the number of days of annual leave that you are entitled to,
2. Trace back and look into your calendar if you still have unspent days-off,
3. Check the number of Statutory Holidays if indeed you have taken 24 days in the two years of your contract with employer; and,
4. You are paid until the last day of your working visa.

If you have any such vacation or rest days owed you, you can apply these to the time left in your visa, meaning you can leave your employment earlier and still be considered as having finished your contract.

We do hope that given the above points that you need to recall to ascertain your situation, you will see the importance of keeping a diary, besides giving you the chance to have a keen understanding of the the situation you are in. Again, when in doubt, consult.

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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.

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