Clause 12 of the present contract is quite clear on this point. It also admits to the possibility of the worker being in physical danger from violence or disease, for example. Yet the same restrictions apply:
The worker will not be compensated for her return air fare or other expenses if she resigns. If she is terminated she may, if she chooses, dispute her employer's reasons doing so through a Labour Tribunal. Win or loose, she will still be repatriated as no employer, who has been challenged in this way, is likely to give her a release letter.
FAIRNESS AND RELEVANCE IN DECISION MAKING
(Hicks P. 15 & 16)
The Director (of Immigration) may be asked to approve either initial applications for entry as a domestic helper by applicants in the the Philippines, or applications for a change of employment in Hong Kong.
The following points can be made:
(a)
(b)
In either case the Director has a discretion to reach whatever decision he considers fit without giving reasons.
Nevertheless the Director has an obligation to act fairly, though not judicially in the exercise of his discretion.
How the Director takes his decision and what matters he takes into account is a matter for concern. It would appear that his Department regards the lawful termination by a helper of her contract as being intrinsically improper.
Presumably a note of early termination will appear on the helper's file and may presumably be taken into account in subsequent applications. This information should however be ignored in reaching a decision unless the helper has been give a proper opportunity to state her side of the story.
The Immigration Department should be most reluctant to accord much weight to private complaints about a helper. It is not charged with the task of adjudicating upon labour disputes and is not equipped to do so.
In summary therefore, to refuse an application because of a previous record of early termination or contract disputes without due enquiry of the helper would be in breach of basic principles of fairness, and contrary to well established principles of administrative law.
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Appendix A