The International Labour Organization's Contracts for Employment (Indigenous Workers) Convention 1939 stipulates that all such contracts should be terminable on one month's notice.
The purpose of this is "to prevent a worker being tied to an individual employer for long periods and being at the same time unable to break his contract without having to pay his employer a substantial sum as damages for breach of contract". (1965 Legco Proceedings page 14.)
The present system of employing foreign domestic helpers has a correct and respectable face. Though many helpers think they are signing a two years contract, the contract in fact allows them to give one month's notice of termination without liability. In reality however if they wish to continue working in Hong Kong they are not free to terminate as they are not permitted to change jobs. Though their freedom to terminate is not restricted by consequent liability to the employer in damages, the administrative system imposes penalties of termination which are at least as serious as this. The considerable expense incurred by them to obtain the position will be lost and they will be repatriated, thus suffering temporary or perhaps permanent loss of wages.
The present two-week rule and release letter system are therefore contrary to the spirit of the Convention and the Ordinance, and they should be scrapped. It makes no difference that in essence the penalty on termination is imposed by administrative constraints rather than by contract. The hardship is just the same.
(d) Any suggestion that the fundamental laws or principles of fairness do not apply in the case of temporary migrant workers is not correct.
-
(Note: It is an interesting point that, under the present system an employer who resigns - even under threat from physical danger will (in a sense) have to pay "damages" as well. Not to the employer, but as expenses to the airlines because it is she who will have to pay for her own repatriation.)
THE PROBLEMS OF BUREAUCRACY
(Basis: Hicks Report, pages 22 & 23)
Dealing with the Consulates, the Labour and Immigration Departments shuttling contracts for approval in
quintuplicate can be a nightmare for employer and employee alike even in the simplest case.
- 7 -
Appendix A