By Melville Boase
Hong Kong, 22 August 2022: It is well documented that Hong Kong’s domestic helpers have suffered more than most during the Covid-19 pandemic: higher workloads due to their employers working at home and children staying away from school; advised by the government to stay home on their rest day; summoned for mandatory testing while their employers are not; and segregated into their own designated quarantine hotels.
Most depressingly, charities and NGOs have reported numerous cases of helpers being fired after contracting Covid, despite clear warnings from the authorities that this is illegal. We have even read stories of unfortunate individuals forced to sleep rough after being kicked out of their employer’s home.
Racism, discrimination and prejudice are daily obstacles for our 370,000 helpers – the vast majority of whom hail from the Philippines and Indonesia – yet access to justice remains all but impossible for many. Why? Because of this city’s notorious “two-week rule”, which requires them to leave Hong Kong within a fortnight of termination of their employment for whatever reason, leaving them in an almost impossible situation should they wish to pursue a claim against their employer.
Simply put, if a helper feels she has been unfairly terminated and decides to seek justice, she becomes mired in a tangle of bureaucratic red tape involving the Labour Department, Immigration Department and the Judiciary.
First, she approaches the Labour Department, but they arrange a so-called conciliation meeting between the helper and the employer which usually takes place after the two-week limit has expired. So, the helper must apply, and pay, for a visitor visa in order to stay. But a crucial part of their claim is often unpaid wages and her passage home. Catch 22 – no money to go, unlawful to stay. Visitor visas are often granted only to the next date in the process, so repeated applications must be made and fees paid for each step.
If the Labour Department does not resolve the claim, the worker is referred to the Labour Tribunal. There, the Tribunal Officer has 30 days to prepare a summary of the case for the Presiding Officer. By law, the domestic helper cannot be represented by a legally qualified person in the Labour Tribunal. The Labour Tribunal is part of the Judiciary. They work in their own world, not adapting the legal procedure to take account of the two-week rule.
The helper, usually after many months or even over a year, gets an award for her passage home. But here’s another problem: the Labour Tribunal does not have power to enforce its own awards. The award must be registered in the District Court. And that causes another issue: a court fee is needed. So the helper applies for Legal Aid, but that is a delay of another six weeks whilst the application is processed. Even if Legal Aid is granted to enforce the award, the enforcement procedure itself is slow, and usually takes some months.
All this time the helper commits an immigration offence if she takes any work to support herself. And all she receives is an award of money that was due at the outset – no penalty on the employer. Also, the worker has had to pay fees for each extension of visa to pursue matters. Often, the total amount of visa fees charged by the Immigration Department exceeds the value of the award.
Is it any wonder that helpers who have been unfairly terminated simply cut their losses and go home within two weeks? Their access to justice is extremely difficult.
Understanding the structure of Hong Kong’s government helps explain how we have arrived at this situation. The whole system of migrant labour here is controlled by the government or, more particularly, the civil servants who devise and implement the policies and their application.
Some years ago, I had a fascinating discussion with a diplomat from another country who was taking a close interest in affairs concerning migrant labour in Hong Kong and who had met most of the civil servants involved. He remarked to me that one of the most striking features of his meetings, especially with the Immigration and Labour Departments, was that almost all were genuine, pleasant individuals, but they had what he called “tunnel vision”. They dealt only with matters concerning their own department and failed to see the bigger picture.
Hence, red tape is a source of frustration and delay. Officials appear unbending and unsympathetic in their approach. As a result, domestic helpers here are treated like second class residents.
The two-week rule is one of three pillars – all fundamentally flawed – of our government’s policy towards helpers. The other two are: the requirement for helpers to live with their employer, which invariably leads to friction and overwork; and the Immigration Department’s practice of prosecuting helpers for breach of condition of stay if they report they are required to work beyond the terms of their contract.
Even as an employment policy, the two-week rule goes against all common sense. If the government genuinely wanted a pool of good, experienced helpers, who know Hong Kong and the environment, and who have adjusted to leaving their homes and families, they would encourage the good helpers to stay, rather than impose a system that gets rid of the good and brings in helpers new to Hong Kong. It makes the current system a complete lottery.
Melville Boase is a long-time campaigner for the rights of overseas workers and has remained actively involved in this field since his retirement from BC&C in 2019. He has served as Treasurer of the Mission For Migrant Workers since 1981. He can be contacted at firstname.lastname@example.org.