[Archive] Foreign domestic helpers denied of statutory salaries and benefits

LEGCO QUESTION No. 8(WRITTEN REPLY)

Date of Meeting: 27 June 2001

Asked by : Hon.LI Fung-ying

Replied by : SEM

Question :

It has been reported that, according to the findings of a survey, some employment agencies aided and abetted employers in exploiting or reducing their foreign domestic helpers' ("FDHs") statutory salaries and benefits, and Indonesian domestic helpers were the worst treated. In this connection, will the Government inform this Council of:

the number of complaints received by the Labour Department from January 2000 to May this year about such exploitation or reduction of FDHs' salaries and benefits, together with a breakdown by their nationality, the amount of salaries underpaid, the number of days of statutory holiday and other benefits reduced;
the number of complaint investigations concluded during the same period and, in respect of such cases, the number of employers involved, the number of FDHs whose complaints were substantiated, and whether the employment agencies involved were punished; if not, of the reasons for that; and
the measures the relevant departments will take to ensure that FDHs are given their statutory labour rights and benefits?

Reply:

Madam President,

a. & b.

The two accidents of 5th of this month occurred at A Kung Kok Villiage and the Hong Kong International Airport respectively. An engineer died in the accident occurred at A Kung Kok Villiage. The Administration is investigating the accident. It is preliminarily believed to be related to electric shocks, but the actual cause of death has yet to be confirmed.

From January 2000 to May this year, Labour Department received 3210 claims which involved foreign domestic helpers (FDHs). During the same period, 3112 cases were processed. Labour Department does not maintain statistics on the breakdown of the cases by nationality and amount of claims etc. Labour Department may provide the break down by cause on the 3112 claims for which conciliation has been completed -

- Dismissal/Termination of contract

2449

- Arrears of wages

243

- Retrenchment

- Underpayment of wages

- Non-payment or underpayment of holidays / annual leave / rest days or sickness allowance

- Others

215

Among those claims for which conciliation has been completed, a total of 1974 claims were settled. The outstanding claims have to be referred to the Labour Tribunal or the Minor Employment Claims Adjudication Board for adjudication, according to the amount of the claim.

The Employment Ordinance provides that an employer would commit an offence if he wilfully and/or without reasonable excuse defaults payment of wages or underpays wages or other employees' benefits. In processing claims, Labour Department would consider whether the cases concerned would involve contravention of the Employment Ordinance or other relevant labour legislation and would institute prosecution action against the offending employer where there is sufficient evidence. From January 2000 to May this year, Labour Department has prosecuted three FDH employers who were suspected of having contravened the Employment Ordinance. One employer was convicted of arrears of wages and annual leave pay and was fined $8,000. The prosecution against one employer was offered no evidence because the FDH concerned gave up to act as prosecution witness. One employer was not convicted because his grounds of defence were admitted by the Court. For the remaining claims, Labour Department did not institute prosecution because no FDH was willing to act as prosecution witness, or, having sought legal advice, the employer concerned was considered to have reasonable excuse.

On the other hand, from January 2000 to May this year, Labour Department received 5 complaints lodged by FDHs, complaining 5 employment agencies of overcharging commission, abetting employers to underpay their wages or charging service charges higher than the statutory level. Labour Department has completed the investigation into the above 5 complaints. Having obtained legal advice, Labour Department considered that there was no sufficient evidence to prove that the employment agencies in 3 of the complaints have overcharged commission and abetted employers to underpay wages. In this connection, no disciplinary action was taken against the employment agencies concerned. Separately, the employment agencies involved in the other 2 complaints were prosecuted for charging FDHs services charges higher than the statutory level. They were eventually convicted and were fined $5,000 and $30,000 respectively. The Commissioner for Labour has exercised her authority under section 53(1) of the Employment Ordinance to revoke the licences of the employment agencies concerned.

At present, FDHs enjoy the same rights and benefits under the Employment Ordinance and other labour legislation as local employees. Such protection includes, among other things, requirements under Part XII of the Employment Ordinance and the Employment Agency Regulations regarding business practices of employment agencies, which protect FDHs and local employees from being overcharged. Apart from this, FDHs also enjoy the rights and benefits under the standard employment contract.

Labour Department has taken the following measures to ensure that FDHs are given their statutory labour rights and benefits:

FDHs are provided with advisory services which assist them to understand their entitlement of various rights and benefits. Conciliation services are also offered to FDHs in case of employment related disputes. Should conciliatory efforts fail to settle the disputes, Labour Department will refer the cases to the Labour Tribunal or Minor Employment Claims Adjudication Board for adjudication. Where evidence is established, Labour Department will institute prosecution against the offending employer.
If FDHs are found undertaking non-domestic duties during inspection of workplaces conducted by labour inspectors, the cases will be referred to Immigration Department immediately for their action so as to combat employers' exploitation of the rights and benefits of FDHs by deploying the latter to undertake non-domestic duties.
Employment agencies are regularly inspected to ensure that they are operating in compliance with the law. If an employment agency is suspected to have contravened the relevant requirements, investigations will be made immediately. If there is sufficient evidence, prosecution actions will be taken and the Commissioner for Labour will exercise her power to revoke the licence of the agency concerned or reject the renewal of the licence.
FDHs are introduced to the various rights and benefits under the labour legislation and employment contracts through various publicity channels, such as the publication of "Practical Guide for Employment of Foreign Domestic Helpers" written in five different languages (namely Chinese, English, Tagalog, Thai and Indonesian). These Practical Guides are available at various offices of the Labour Relations Division of Labour Department, the Public Enquiry Service Centres of District Offices of Home Affairs Department, relevant consulates, employers' associations and labour unions. Staff of Immigration Department will also distribute the Practical Guides to the FDHs when the latter apply for Hong Kong Identity Cards.
Labour Department maintains close liaison with related consulates, employers' associations and trade unions to host seminars for FDHs, employment agencies and employers on labour legislation. FDHs are encouraged to promptly report any unlawful acts of employers or employment agencies through trade unions.