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Following is a question by the Hon Mrs Regina Ip Lau Suk-yee and a written reply by the Secretary for Labour and Welfare, Mr Matthew Cheung Kin-chung, in the Legislative Council today (April 6):
Question:
At present, foreign domestic helper ("FDH") employment agencies are the major channel through which Hong Kong people employ FDHs, and the employment agencies, in order to attract business, usually claim that the FDHs referred by them have received training in domestic work and/or baby care offered by FDHs' local employment agencies. However, some members of the public have relayed to me from time to time that the qualifications of the FDHs employed through employment agencies are inconsistent with what the agencies have claimed. Under such circumstances, even if the agency concerned is willing to provide the employer with a replacement FDH, the employer still has to pay for expenses such as the visa fee and medical examination fee for the replacement FDH, and also give the dismissed FDH one month's wages in lieu of notice and provide the FDH free passage to return to his/her place of origin. In this connection, will the Government inform this Council:
(a) whether any legislation or measure is in place at present to regulate the making of misleading and false claims by FDH employment agencies; if so, of the details; and
(b) in view of the fact that at present, in case an employer finds his newly employed FDH incompetent, the employer may only dismiss the FDH in accordance with the Standard Employment Contract ("SEC") provided by the Government, and there is no other more convenient way for the employers, whether the Government will consider providing a probation period in SEC; if it will, of the timetable; if not, the reasons for that?
Reply:
President,
The Labour Department (LD) attaches great importance to ensuring that employment agencies (EAs) operate according to the law. On the regulation of EAs, LD is responsible for enforcing Part XII of the Employment Ordinance (Cap. 57) (EO) and the Employment Agency Regulations (the Regulations) made thereunder. Its duties include the processing of licence applications, checking compliance of employment agencies with the EO requirement to keep records of job-seekers and employers, and conducting investigation into complaints about operating without a licence and overcharging of agency fees. Every EA is required to apply for a licence from LD before undertaking any job placement business. If an EA is convicted of contravening Part XII of the EO and the Regulations in the course of operation, the Commissioner for Labour will consider refusing to issue or renew its licence, or revoking its licence.
My reply to the question raised by the Hon Regina Ip Lau Suk-yee is set out below:
(a) According to the Trade Descriptions Ordinance (Cap. 362) (the Ordinance), it is an offence for any person to apply a false trade description to goods. To strengthen protection for consumers, the Government consulted the public last year on the relevant legislation and released a public consultation report in January this year. One of the legislative proposals was to broaden the scope of application of the Ordinance to cover trade descriptions in respect of services made in consumer transactions, including indications, direct or indirect, of the quality of the services. Under this proposal, an agency will commit an offence if it applies a false description with respect to the standard, quality or other attributes of the services that it provides to consumers.
(b) It is the established principle of the Government's labour policy to strike a reasonable balance between the interests of employers and employees. We consider that the current arrangement of not setting a probation period for foreign domestic helpers (FDHs) achieves that balance.
For FDHs, the existing arrangement requires that an FDH must have at least two years' working experience as a domestic helper before coming to Hong Kong, and thus allowing them to stay and work in Hong Kong for a longer period (with a two-year contract term) is a reasonable arrangement. For FDH employers, the relevant Standard Employment Contract prescribed by the Government requires them to pay for certain expenses when employing an FDH, such as travel fee, visa fee and authentication fee. Even if a probation period were to be set, employers' expenses in this regard would not be exempted. If, during the probation period, the employee requests to terminate the contract, in addition to bearing the travel fee for the employee's return to the latter's place of origin, the employer has to bear the travel fee, visa fee and authentication fee, etc for the new employee. Hence, the employer's expenses in this regard will not be reduced. On the other hand, FDHs incur considerable costs and expenses for accepting employment in Hong Kong. If they are required to bear the risk of the probation period and the aforementioned expenses, it is likely that a large number of FDHs would not be able to afford the costs of coming to work in Hong Kong, or suffer serious losses as a result of not passing the probation. This would affect the desire and number of FDHs to work in Hong Kong, thereby limiting employers' choices, and even rendering some employers with genuine needs unable to get an FDH. In addition, the probation period arrangement may also lead to FDHs who are not offered employment being stranded in Hong Kong owing to lack of travel funds, and the Government may eventually need to use public funds for their repatriation.
The present Standard Employment Contract provides that either the employer or the employee may terminate the contract by giving not less than one month's notice in writing or by paying one month's wages to the other party. This arrangement already offers both parties a degree of flexibility. After carefully weighing the above considerations, we consider that it would be inappropriate to introduce a probation period for the employment of FDHs.
Ends/Wednesday, April 6, 2011
Issued at HKT 11:45
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