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| The speakers say 'job hopping' claim will force MDWs to continue working even if abusd |
Hong
Kong’s plan to revise the Code of Practice for Employment Agencies (CoP) to insert
a section on “combatting job-hopping” by migrant domestic workers has come
under fire from the city’s nearly 400,000 MDWs as well as their supporters in academe,
legal profession and concern groups.
Pushing
the proposal that practically “criminalizes” MDWs’ termination of their
contract if they are abused or exploited by their employers will make the
plight of migrant workers worse, said speakers at a press conference on May 11. As
it is, foreign helpers are already considered as second-class
citizens and excluded from the protection and benefits that other workers in
the city enjoy.
One
of the speakers, prominent human rights lawyer Mark Daly, said it was like
kicking someone who was already down.
The
briefing was held by the Asian Migrants Coordinating Body (AMCB) in coordination with Mission for Migrant
Workers (MFMW), the Migrant Sociolinguistic Research Group (MSRG) of City
University of Hong Kong, and human rights lawyer Mark Daly.
The
conference was called just three days before the government ends this Sunday,
May 14, its public consultation on the Hong Kong Labour Department’s proposal
to curtail alleged “job-hopping” by MDWs who terminate their employment
contract to seek higher pay and better working conditions.
“We
have repeatedly expressed our worries about the current description of
‘job-hopping’ of migrant domestic workers as a trend. We believe that it is
overstretched and unfounded,” MFMW said in a position paper it submitted to the
consultation and read out by Johanie Tong, its community relations manager, to
the media representatives.
The
submission reiterated a letter sent by the Mission’s general manager Cynthia
Abdon-Tellez’s letter to Hong Kong Chief Executive John Lee Ka-chiu on March 23
that pointed out a spike in contract terminations since allegations of job
hopping surfaced.
Data
published in the 2022 MFMW Service Report showed 31% of migrant workers in Hong
Kong have had their contracts terminated mostly by their employers. But the report
said “the phenomenon was not about job change but job loss of MDWs due to the
exodus of employers and other financial difficulties”.
Most
of those who got terminated had finished their two-year contracts at the
minimum or had served multiple contracts with their employers, said
Abdon-Tellez, who urged the Labour Department “to examine the more concrete and
worrisome problem of job loss”.
Secondly,
MFMW said it was very much worried that the current approach to defining “job
hopping” infringes on the rights of the employee or employer to end the
contract under the Employment Ordinance.
The
Mission cited point (f) of the preliminary proposal for revising the CoP, which
states: “If there is evidence showing that an FDH job-hops, his-her employment
visa application will be refused. The relevant application record will be one
of the factors to be considered by the government when processing his/her
future employment visa application.”
The
MFMW said it is worried that the government’s anti-job-hopping measures may
actually cause forced labour, as defined by the International Labour Organisation
Forced Labour Convention 1930 (No. 29), which suggests that if MDWs work for
fear that they won’t be issued visa in future, then that is forced labor. Yet,
the Hong Kong Bill of Rights states that “No one shall be required to perform
forced or compulsory labour,” MFMW said.
Among
the speakers at the press conference was Dr. Lydia Catedral, assistant
professor at City U, who expressed the
MSRG’s opposition to the LD’s proposed insertion of “job-hopping” in the CoP.
“Rather
than professionalizing the industry, we anticipate that this proposal will
increase cases of extreme and prolonged abuse against migrant domestic workers,
and undermine Hong Kong’s image as Asia’s WorldCity,” said Catedral,
summarising the MSRG’s evidence that:
1)
The “job-hopping” proposal violates the workers’ right to “free choice of
employment” and treats domestic work as slavery the basic human rights of
workers to change their employers as it makes job change illegal during their
two-year contract.
2)
The “job-hopping” policy will prolong cases of abuse against MDWs because it
increases the power of employment agencies (EAs) to force workers to stay in
abusive situations. It takes away one of the few options workers have to escape
such abuse. In the past, EAs had forced workers to return to their abusive
employers to finish their contracts.
The
MSRG said the “job-hopping” proposal delegates to EAs responsibility for
ensuring MDWs finish the two-year contract, giving these agencies incentive to
continue forcing workers to endure physical and sexual abuse. It also makes
contract termination an even more inaccessible escape for abused workers due to
the threat of permanently losing their ability to work in Hong Kong to provide
for their families.
Finally,
the MSRG said the proposal’s exception for MDWs who can produce “evidence” of
“harsh treatment or exploitation” is insufficient to counter the abuse that will
be prolonged if the policy is implemented, as this “exception” does not account
for unreported cases.
3)
The “job-hopping” proposal makes MDWs scapegoats for the difficulties
experienced by employers during Covid-19, even though these workers were among
those most negatively impacted by the pandemic.
Catedral,
who said that if employers of MDWs just like her had experienced great
financial and familial difficulties during the pandemic, so had the domestic
workers, yet the MDWs had been excluded from the government consumption
vouchers. More so, they had been blamed as carriers of COVID and used as
scapegoats for the economic difficulties that local families suffered during
the contagion.
Yuan
Liang, a student at City U and service provider for the Mission, said MDWs will
be exposed to more danger if the job-hopping policy pushes through, as
infringes on their rights under the Employment Ordinance. With the inclusion of
the job-hopping policy in the CoP, it is only the employer who will have the
right to terminate the contract, thus giving way to forced labor.
Daly said this group of people’s human rights and legal
situation are already vulnerable the moment they arrive in Hong Kong. He said
there are already a number of studies that show MDWs are at forced labor and
exploitation, “so their situation is not very good.”
Daly
said the United Nations has criticised Hong Kong for the MDWs’ present
situation where they are vulnerable, clearly set apart from other workers in
Hong Kong. “The government says that these workers are treated the same as
other workers, they’re not. They’re being considered second-class,” he said.
“They
are already vulnerable to exploitation, so, this proposal will make them even
more vulnerable, like kicking somebody when they are already down,” the lawyer
said.
He
said that had been instances in the past where Hong Kong laws were not
favourable to MDWs, as in a few Right of Abode cases that Daly helped take up
to Hong Kong’s highest court, the Court of Final Appeal.
Daly
said there are a number of laws that impinge on this group of workers, but
those who could help remedy the situation are just making it worse now.
Asked
by The SUN what his response would be if the job-hopping policy is included in
the CoP, he said he would work out a course of action in coordination with
groups at the meeting, such as mounting legal challenges as the ILO.
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