As of December 2014, The Hong Kong Labour Department reported that just over 330,000 domestic migrant workers work and reside in Hong Kong, equivalent to roughly 4% of the city’s population. The overwhelming majority of these women come from Indonesia and the Philippines, though many others come from Thailand, Bangladesh, Nepal, Pakistan, Sri Lanka, and Myanmar. These workers have 5 main categories of work: cooking, household chores, minding the elderly, babysitting, and child care.
Due to the specialised nature of their contracts, they are subject to different laws than other immigrants. This separation of labour and immigration law, as well as the patchy enforcement of employment law, makes domestic workers particularly susceptible to abuse and exploitation.
- Compulsory to ‘live-in’; no maximum working hours: To prevent competition with local domestic workers, Clause 3 of the Standard Employment Contract requires migrant workers to live with their employer and work six day weeks. Hong Kong law fails to set maximum working hours for live-in workers (or any other workers). Though the government requires ‘suitable accommodation and reasonable privacy’, it has yet to establish a mechanism to ensure adequate living and working conditions. Migrant workers are prohibited from taking up any other employment during their stay. HK is currently debating city-wide maximum working legislation, but activists fear that domestic workers will be excluded because Hong Kong officials say that it is too difficult to monitor their working hours. See our first and second campaign points.
- No minimum wage: Migrant workers are excluded from Hong Kong’s minimum wage law. The current minimum wage in Hong Kong is set at HK$30/hour. However the Minimum Allowable Wage (MAW) as of October 1, 2014 for domestic workers is a monthly salary of $4,110. Given a forty hour work week and 160 hour months, this breaks down to just HK$25/hour. Domestic workers often report working more than forty hours per week.
- Agents overcharge & exploit loopholes: Chapter 57(a) of the Employment Ordinance states that agency fees may not exceed 10% of the first month’s salary, and cannot be collected until after receipt of the first paycheck. However, it is a common for agencies in sending countries and their counterparts in Hong Kong to illegally require 6-8 months salary as a placement fee, or to pretend these fees are ‘loans’ for placement, airfare, accommodation, etc… Many then charge a high interest rate or transfer the debt to a legitimate loan company in Hong Kong. Indonesians are especially susceptible, as they are required by law to use a placing agency when working overseas. While the HK Government has claimed to conduct raids on agencies, the practice continues with limited oversight. See our third campaign point.
- Poor enforcement of rest days: Migrant workers should be granted one rest day per week in addition to the 12 official public holidays recognized by the Hong Kong Government, as per Chapter 57 Section 17 of the Employment Ordinance. Payment in lieu of a public holiday is not permitted. Amnesty International (report, Pg.56) found that more than half of Indonesian helpers are denied their statutory rest day. This prevents helpers from contacting other migrants, from accessing information about their rights/entitlements and from participating in civic life. A day is defined as 24 hours.
- No permanent residency: The 1997 Immigration Ordinance Cap. 115 prohibits domestic migrant workers from qualifying for the right of abode in Hong Kong, despite this right being granted to all other migrant workers after seven years. In the most recent case before the Court of Final Appeal, Vallejos Evangeline v. Commission of Registration & ORS, it was decided that due to the strict nature of domestic migrants workers’ contracts and visa, as well as Section 2a under the Immigration Ordinance, they were not ‘regularly residing’ in Hong Kong and were therefore not eligible to receive right of abode.
- 2nd-class citizenship: Foreign domestic workers are also not included in the Hong Kong Census measures of population, family composition, and the labour force. Other non-permanent Hong Kong residents and migrant workers are included in census data, which helps shape government policy.
- Government permission to drive: Helpers may only drive if doing so is ‘incidental and arising’ from domestic duties – even then, permission must be sought from the Immigration Department. Previously, the Standard Employment Contract 15(d) banned helpers from driving altogether, as a ‘condition of stay’. Other migrant workers are able to drive if they apply.
- Two-weeks to leave Hong Kong after termination: Post-termination, domestic workers are given two weeks to find new employment. Processing by Immigration takes 4-8 weeks and extensions are rarely granted and then, only in extreme circumstances. This rule makes it nearly impossible for workers who are legally or illegally terminated to find alternative employment in Hong Kong and serves to give employers power over the helper, enabling abuse.
- Evasive access to justice: Domestic workers in Hong Kong often struggle to access justice through Hong Kong’s court system. One reason is because they are required to leave Hong Kong after two weeks, even if their employer has broken the law. If they are able to successfully file a claim, the process can take up to 15 months and they are unable to work in Hong Kong while it is pending. Their other option is to find other employment in Hong Kong and then file a claim. It is also very difficult to prove civil claims against employers, such as claims for lack of adequate rest or underpayment of wages, because these are very difficult to document and prove in court due to the private nature of domestic work.
- Arbitrary laws: Since 2005, women from Nepal have been banned from obtaining visas to work as a domestic workers in Hong Kong.
International Law and Standards:
Policy failure and legal loopholes has put HK in breach of a number of international laws and standards, with some aspects of HK law universally condemned (such as the ‘2 week’ rule and ‘live in’ law). Until these are rectified and enforced, the abuse of migrant domestic workers will likely continue…
- ILO (International Labour Organisation) – International Labour Laws are entrenched Article 39 of HK’s Basic Law. Extortionate agency fees fall under the ILO’s definition of ‘debt bondage’ and are illegal.
- CEDAW (UN Convention on the Elimination of All Forms of Discrimination Against Women) – Extended to Hong Kong through the UK’s ratification in 1996. Article 11 calls for governments to take active steps to prevent debt bondage. Failing to do so constitutes non-compliance.
- ICCPR (UN International Covenant on Civil and Political Rights) – Extended to Hong Kong through the UK’s ratification in 1976 and incorporated into the Bill of Rights Ordinance in 1991. Article 8 prohibits any compulsory labour, and forced labour and coercion occur in Hong Kong when migrant workers passports are confiscated. The UN Human Rights Committee and theUN Committee on the Elimination of Racial Discrimination have condemned HK’s policies towards helpers under this covenant.
- ICESCR (UN Human Rights: International Covenant on Economic, Social and Cultural Rights) – Article 7 guarantees rest, leisure and reasonable working hours. Hong Kong could comply with this by setting maximum working hours for migrant workers. In 2013, this committee condemned HK for its imposition of the ‘2-week’ rules upon helpers.
- UNTIP (Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children) – The US has urged Hong Kong to “enact a comprehensive anti-trafficking law that prohibits all forms of trafficking” in-keeping with the UNTIP protocol. The protocol was ratified by China in 2010 but has yet to be implemented in HK.
- ILO C189 (International Labour Organisation: Domestic Workers Convention of 2011) – China is not a signatory to ILO Convention C189, nor has it indicated any indication that it will. Article 6 stipulates that all live-in workers be given adequate living conditions with respect to their privacy. Article 15 recommends all country members should effectively regulate recruitment agencies, ensure adequate procedures for investigation of complaints and provide sufficient protection against abuses. Article 17 aims to ensure that workers can access complaint mechanisms and that governments pro-actively implement measures for inspection of labour conditions.