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Where to settle claims: job agency or Labour Department?

22 July 2018

By Cynthia Tellez

A lot of times, our troubled migrant workers lack the right information on what to do and where to file their complaints when they are shortchanged by employers or agencies. This puts our OFWs in a vulnerable position and instead of a favourable resolution, they end up on the losing end because they thought they were given the proper advice.

There are migrant workers who report that their employer, after terminating their employment contract, did not give them what are due under the contract. The employer, instead of settling their obligations with their workers immediately, makes an appointment for them to see each other at the recruitment agency that facilitated the worker’s employment in Hong Kong.

Due to fear of receiving nothing if they refuse, migrant workers are forced to submit to the employer’s demand to settle claims in the office of the recruitment agency. In many cases, what happens next is that the agency just wants a way to get hold of whatever amount the employer will pay the worker.

The agency uses its “power” to pressure the worker to accept whatever is offered and from this, some amount may be deducted, including for the “completion of placement fee” plus many other things. In the end, almost nothing is left to the worker. She may even be forced to sign the receipt that makes it more difficult to file further claims against the employer at the Labour Relations Division of the Labour Department of Hong Kong.

First question: Do employers have the right to dictate where to settle their obligations to their  domestic worker? The answer is: NO.

Let us then explain the different functions of different entities related to the employer-domestic worker disputes in relation to contract. In this column, we will primarily discuss matters pertaining to employment contract violation that is within the jurisdiction of the Labour Department through its Labour Relations Division located in different districts of Hong Kong.

Technically any settlement between the employer and domestic worker is called amicable settlement which means that the dispute is settled between them and only by them. The involvement of recruitment agencies should be avoided by domestic workers. It is best to always settle disputes through the Labour Relations Division because only the Labour Department is mandated and tasked to attend to this kind of disputes.

There may be times that a Labour Officer also tells you to settle the matter at the recruitment agency. You have the right to refuse to do that.

Why should you avoid this? There are lessons to learn from the experiences of others who resorted to this move. Some domestic workers are threatened by employers by calling the police as if the worker has committed a crime. Some workers are threatened that they will not receive any amount in relation to their claims if they will not agree to settle through the recruitment agency. Some domestic workers succumb to pressures or may even be persuaded to agree, thinking that it is the easiest way to settle. Unfortunately, many experience undue deductions: “unpaid agency fees”, wages in lieu of notice and in some cases, even payment for plane ticket. They may turn out to be illegal deductions if thoroughly analyzed. But a confused and rattled migrant worker may not be in a position to do that.

They are overpowered by the presence of two authorities: employer and agency staff. “Unpaid agency fees” in many instances are overcharged fees if not illegal charges; wage in lieu of notice can be argued depending on the circumstances leading to the termination of employment contract; and air ticket is the responsibility of the employer for hiring a foreign worker. Once a domestic worker has agreed to any of these deductions, she will be forced to sign a paper stating that no further claims can be filed against the employer. It may even include the line “full and final settlement”. Thus, even if the full amount of the claims is not given, it will be difficult to file further claims, though not impossible. So, it is better to file the claims at the proper government agency that is the Labour Relations Division of the Hong Kong Labour Department and NOT the placement or recruitment agency.

The recruitment agency’s responsibility is mainly to process your work contract in Hong Kong. This includes, after ensuring the legitimacy of the employer, processing at the Philippine Consulate for authentication and verification, and then further on, to the facilitation of work visa application processing to the Immigration Department. Placement agencies based in the Philippines cannot charge any agency fee from an OFW applicant. This is based on the policy by the Philippine Overseas Employment Administration or POEA in December 2006. Meanwhile, the agency in Hong Kong can charge only 10% of the first month’s salary of the worker. This, and anything related to job placement, is the main role of the agency. Also, as a reminder, throm Page agency has no right to keep the domestic worker’s passport, employment contract, and other personal official documents issued to the domestic worker including the HK Identity card.   

In summary, migrant domestic workers must not allow themselves to be pressured or coerced by their employer to settle employment claims anywhere apart from the Labour Department. When they feel uncomfortable, they should seek assistance from service providers like the Mission for Migrant Workers, which can help clarify what actions they need to take.  It is better to be cautious than sorry.

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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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