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Following is a reply by the Secretary for Security, Mr Lai Tung-kwok, to a question by the Hon Chung Kwok-pan in the Legislative Council today (February 19):
Question:
According to the Standard Employment Contract (contract) for employing foreign domestic helpers (FDHs), employers have to provide their FDHs with free passage from Hong Kong to their places of origin on termination or completion of the contracts. Some employers of FDHs have relayed to me that some intermediaries for FDHs (intermediaries) and FDHs have seized the opportunity and collaboratively abused the arrangement for premature termination of contracts and change of employers (commonly known as "job-hopping"). They have employed various tactics to make the employers initiate contract termination with their FDHs so that the FDHs may receive the money for the passage and the intermediaries may charge new employers for placement service. However, instead of returning to their places of origin, such FDHs have departed for Macao, Shenzhen or other neighbouring places and then re-entered Hong Kong to work. Given that job-hopping by FDHs causes psychological and financial damages to the employers and that the problem has become increasingly serious, will the Government inform this Council:
(1) whether the authorities will consider not issuing new employment visas to FDHs who have had more than two employment contracts terminated prematurely within the 12 months prior to their visa applications; if they will, of the details; if not, the reasons for that;
(2) whether it will review and amend the Immigration Ordinance to strictly require FDHs to return directly to their places of origin within 14 days upon premature termination or completion of their contracts with the employers, and to permit employers to monitor if the FDHs have actually left Hong Kong; if it will, of the details; if not, the reasons for that; and
(3) whether it will consider, upon the request of a prospective employer of an FDH and with the consent of the FDH concerned, providing the prospective employer with the information kept by the Immigration Department on that FDH's employment history in Hong Kong (including the places of work and duration as well as the reasons for leaving, etc. in respect of each of the previous contracts) for reference so as to combat job-hopping by FDHs and prevent prospective employers from falling into the traps of job-hopping FDHs, in order to enhance the protection for employers; if it will, of the details; if not, the reasons for that?
Reply:
President,
My reply to Hon Chung's question is set out below:
(1) The Immigration Department (ImmD) has all along been processing employment visa applications of foreign domestic helpers (FDHs) in a rigorous manner. If the applicant has any adverse records or breaches, ImmD will consider refusing his/her application.
Clause 12 of the Employment Contract for a Domestic Helper Recruited from Abroad (the Contract) provides that in the event of termination of the Contract, both the employer and the FDH shall give the Director of Immigration 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 ImmD. These records will be kept and taken into account by ImmD in considering any future applications made by the FDH for an employment visa or extension of stay.
Under the prevailing policy, change of employer applications from FDHs in Hong Kong within their two-year contract will not normally be approved except under exceptional circumstances, e.g. if the FDH's contract is terminated on grounds of the transfer, migration, death or financial reasons of the ex-employer, or if there is evidence suggesting that the FDH has been abused or exploited. The applicant must provide proof to satisfy ImmD that his/her application meets the above circumstances in order to be approved to change employers in Hong Kong.
Regarding the abuse of premature contract termination arrangements by FDHs, ImmD has adopted a corresponding measure to strengthen the assessment of employment visa applications of FDHs who change employers repeatedly. ImmD will, in processing the employment visa applications of FDHs, closely scrutinise their case details such as the number of and reasons for premature contract termination within 12 months with a view to detecting any abuse of the arrangements for premature contract termination. If ImmD suspects such abuse, the application will be refused.
From the implementation of the above measure in June 2013 to January 2014, ImmD received about 40 000 employment visa applications from FDHs, of which 1 372 were suspected of "job-hopping", accounting for 3.4% of all applications. After closely scrutinising these applications, ImmD refused 170 of them. Another 158 applications were withdrawn by the applicant or required no further action. ImmD believes that this measure helps to deter abuse and will review its effectiveness from time to time.
(2) Clause 7 of the Contract stipulates that on termination or expiry of the Contract, the employer shall provide the FDH with free return passage to his/her place of origin. The rationale behind this requirement is that the employer, who hires the FDH to work in Hong Kong, has the responsibility to pay for the FDH's return passage in order to ensure the FDH's smooth return to his/her place of origin upon the completion or premature termination of the Contract. Otherwise, the FDH concerned may be stranded in Hong Kong owing to the lack of means to travel. The same requirement also applies to other employers who hire foreign workers from overseas to work in Hong Kong under other labour importation schemes. The Administration has no plans to change the prevailing policy.
Although the Contract does not stipulate the form or deadline of the return passage provided by the employer to the FDH, we suggest that the employer provide an air ticket for travelling from Hong Kong to the FDH's place of origin to fulfill the contract requirement instead of giving a cash amount equivalent to the value of an air ticket. Also, to avoid additional losses, employers may consider providing their FDHs a more flexible air ticket, such as one without a specific deadline or one that allows change of travel dates, as there may be unexpected circumstances where the FDH is unable to travel on the date specified on a fixed date ticket (e.g. discount tickets).
Unless he/she falls under the exceptional circumstances mentioned in part (1), an FDH working in Hong Kong who wishes to enter into an employment contract with a new employer must leave Hong Kong and submit a new employment visa application to ImmD. In processing the employment visa application of an FDH to work for another employer after premature contract termination, ImmD will conduct a movement record check to ensure that the FDH has left Hong Kong before the new visa is issued. If the applicant is suspected to have any adverse records or breaches, including abuse of the employment arrangement for FDHs, ImmD will consider refusing the application based on individual circumstances.
(3) Under the FDH policy, ImmD's primary function is to process FDHs' employment visa applications and to consider whether the applicant fulfills the relevant criteria and the normal immigration requirements. It is not ImmD's role to provide FDH's background information to prospective employers.
If employers wish to obtain information pertaining to FDHs' previous employment in Hong Kong, they may contact the FDHs' former employers with the consent of the FDH and the former employer, in order to learn more about the FDHs' performance. Employers may also refer to the employment visa and entry stamp (or landing slip) on the FDHs' travel document, old employment contracts, etc. Furthermore, the employment records of FDHs, including the time of employment and reasons for quitting, constitute personal data under the Personal Data (Privacy) Ordinance (Cap. 486). Any persons making a data access request to government departments to access another person's personal data must comply with the requirements stipulated under the Ordinance.
As mentioned in part (1), ImmD has along been processing FDHs' employment visa applications in a rigorous manner. If the applicant or his/her employer has any adverse records or breaches, ImmD will consider refusing his/her application.
Ends/Wednesday, February 19, 2014
Issued at HKT 18:38
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