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Following is a written reply by the Secretary for Security, Mr Lai Tung-kwok, to a question by the Hon Regina Ip in the Legislative Council today (November 21):
Question:
Some employers of foreign domestic helpers (FDHs) have complained to me that their FDHs, soon after reporting for duty, employed various tactics to make the employers terminate the employment contracts with them, so as to receive wages in lieu of notice and free passage back to their places of origin. However, these FDHs did not return to their places of origin as required and took up employment in other households within a short period of time. In this connection, will the Government inform this Council:
(a) whether the Government has put in place measures to ensure that FDHs comply with the requirement of returning to their places of origin upon termination of contracts;
(b) whether the Immigration Department has kept records on the employment of FDHs and their termination of contracts with employers; if so, how it processes generally applications for coming to work in Hong Kong again by those FDHs who have records of early termination of contracts; and
(c) whether the authorities will consider setting up a database to allow employers, on the premise of not contravening the Personal Data (Privacy) Ordinance (Cap. 486), to check records of fulfillment of contractual obligations or the entry and departure records of FDHs whom they intend to employ?
Reply:
President,
The reply to the three parts of the question is as follows ﷿
(a) and (b) Under the prevailing arrangement, foreign domestic helpers (FDHs) have to undertake in the visa application form for employment in Hong Kong that he/she will depart Hong Kong upon the completion of employment contract or within two weeks after the termination of employment contract, whichever is the earlier. This is also one of the conditions of stay imposed on the FDHs by the Immigration Department (ImmD). An FDH who has overstayed is in breach of his/her condition of stay. According to the Immigration Ordinance (Cap. 115), offenders are liable on conviction to a fine of $50,000 and to imprisonment for two years. Being the sponsor of the FDH, the employer is also responsible for sending the FDH back to his/her place of origin on expiry or termination of employment contract. This requirement is set out in clause 7(a) of "Employment Contract (for a Domestic Helper recruited from abroad)" (the standard employment contract), i.e. the employer shall provide the FDH with free passage from his/her place of origin to Hong Kong, and on termination or expiry of the contract, free return passage to his/her place of origin. This arrangement is to ensure the FDH's smooth return to his/her place of origin on termination or expiry of the contract and will not be stranded in Hong Kong due to insufficient fund.
Furthermore, clause 12 of the standard employment contract states that in the event of termination of the contract, both the employer and the FDH shall give the ImmD notice in writing within seven days of the date of termination. A copy of the other party's written acknowledgement of the termination shall also be forwarded to the ImmD. The ImmD will keep such records which will be taken into consideration for assessing the FDH's future applications for employment visa or extension of stay. As a matter of fact, when assessing the employment visa application of an FDH to work for another employer after termination or expiry of contract, the ImmD will conduct a movement record check to ensure that the FDH is out of Hong Kong before the new visa is issued.
The ImmD has been strictly assessing the FDHs' employment visa applications. If the applicants are suspected to have any adverse records or breaches, including abuse of the employment arrangement of FDHs, the ImmD will consider refusing the application based on individual circumstances. The ImmD has already strengthened the assessment of suspected abuse of contract termination arrangement by FDHs, such as examining the frequency and reasons of contract termination. Future applications for employment visa will be refused if such abuse is substantiated.
(c) Fulfillment of contractual obligations and movement records of individuals are personal data as provided for under the Personal Data (Privacy) Ordinance (Cap. 486). Such information generally cannot be disclosed without the consent of the data subject. The Government currently has no plan to set up a database of fulfillment of contractual obligations and movement records of employees in individual sectors (including FDHs).
Ends/Wednesday, November 21, 2012
Issued at HKT 16:52
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