Our legal advisor, Rob Connelly has an Op-ed in the South China Morning Post today on the myth of ‘job-hopping’. His unedited commentary is below…
What would you think of a law which penalised you for changing your employer? What if you had paid the majority of the costs of your recruitment to an employment agency and were now being told that to resign would be unfair to your employer? Why do we countenance such discriminatory administrative policies towards migrant domestic workers, or Foreign Domestic Helpers, as they are known to the Hong Kong Government?
Once again, the job-hopping myth has been trotted out to justify the discriminatory and punitive immigration policies towards migrant domestic workers (“‘Job-hopping’ helpers exploit rules for cash” – 20 February 2014). It’s time to look at the facts.
Contrary to the statement of the Security Bureau in the article, workers who terminate their employment contracts prematurely are not entitled to severance pay under the Employment Ordinance. They will only receive any outstanding salary for the period worked and return passage to their home country, as a ticket or cash in lieu, at the discretion of the employer. A worker who does not have grounds to terminate the contract summarily has to give one month’s notice or pay one month’s wages in lieu of notice to the employer.
After terminating her contract, the worker has 14 days to find a new employer, at the end of which she has to leave Hong Kong, whether or not a new employer has been found. She will suffer loss of income for four to six weeks while waiting for the new visa, or even longer if she did not find an employer and has to register again with an agency in her home country.
A migrant domestic worker who changes employer usually has to pay an employment agency for processing her contract and pay for food and accommodation if she chooses to wait for her visa in Macau or China. The economic case for job-hopping does not exist, and the suggestion that workers do so for the value of a one-way budget air ticket is simply laughable. They are more often out of pocket to the tune of over $10,000.
All the “two-week rule” does is penalise those workers who seek to leave bad employment situations by denying them freedom of contract. It creates a system of debt-bondage and servitude in the case of workers who are still repaying high agency fees. This increases their vulnerability to excessive working-hours and denial of uninterrupted 24-hour weekly rest days, inadequate accommodation, and even verbal, physical and sexual abuse.
Victims of abuse who decide to remain in Hong Kong in order to pursue legal remedies against abusive employers are then further victimised by the immigration policy which effectively prevents them from changing employer until the legal actions are concluded. Facing six months’ or more loss of income, and reliant on charities for food and overcrowded accommodation during this period, many do not claim at all and those who do are often forced into early settlements for much less than they are entitled to.
The Administration has demonstrably failed to strike a reasonable balance between the interests of employers and employees. It has turned a deaf ear to repeated criticism from UN human rights bodies such as the HRC, CESCR, CERD, CEDAW and the ILO. In large part due to its policies on migrant domestic workers, Hong Kong sits in Tier 2 in the US Department of State’s Trafficking in Persons Report.
A new scheme introduced last June scrutinises migrant domestic workers’ applications for change of employer for the number of and reasons for premature contract terminations within 12 months, with a view to detecting any abuse of the arrangements for premature contract termination. If fairness is to be seen to be done, why does the Administration not introduce an equivalent policy to prevent employers from abusing the system?
Too many employers frequently change domestic workers without cause, encouraged by “free replacement guarantees” offered by unscrupulous agents who continue to gather illegal commissions from job-seekers. As migrant domestic workers often pay the majority of the costs of their recruitment, surely they are in even greater need of protection from such a policy.
In any event, with the new administrative scheme that is already in place, the “two-week rule” is now obsolete as well as harmful, and should be abolished. If there are isolated cases of abuse by a small minority, these can now be addressed without the need to deny the human rights of all. Is there any reason why workers should not be given at least four to six weeks to find a new employer and allowed to change employer in Hong Kong unless there is clear evidence of abuse of the arrangements?
On February 27, the LegCo Panel on Manpower will meet to discuss the policy on migrant domestic workers. The agenda and submissions from interested parties are available on LegCo’s website. It is an area that demands urgent policy reform. The difference between decent conditions of work or slavery-like conditions remains a question of luck for migrant domestic workers. Respect for human rights cannot be left to the will of employers.