TNAG-2318-FCO40-3362-Petitions-from-members-of-the-public-regarding-Hong-Kong-1991 — Page 111

REPUGNANCY TO FUNDAMENTAL LEGAL PRINCIPLES

(Basis: Hicks Report, pages 20 to 22 )

The present system which enables an employer to ensure that his helper works for him for two years or else be faced with almost certain repatriation is contrary to the spirit of a number of fundamental legal principles.

(a) It is a principle of common law that where an employee signs a fixed term contract, the employee can not be forced by a decree of specific performance to complete the term of employment. The law does not permit an employee to be put into bondage. Instead it protects the interests of both parties by conferring right in damages for breach of contract if the other terminates prematurely.

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The system for employment of overseas foreign domestic helpers (originally Filipina helpers) is based on contract freely terminable on one months notice. Immigration Department however by its administrative policies the two-week rule (originally one-year rule in the report) and release letter ensures that helpers who wish to continue to earn a living in Hong Kong are effectively bound to an employer for the full period of two years. system flouts the spirit of the law and is contrary to the principle that an individual should be free to dispose of his or her labour as he or she sees fit.

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(b) Sir W. Earle has written "Every person has a right, under the law, as between him and his fellow subjects, to full freedom in disposing of his own labour and his own capital according to his will," (The law of Trade Unions 1869 p. 12). One effect of the established legal principle, as accepted in Hong Kong, is that any contract unreasonably restraining an employee from obtaining subsequent employment is unenforceable and contrary to public policy. (See for example Buchanan v. Janessville Ltd, SCt. CA No. 123, 26th November 1981.)

The release letter is of course an administrative requirement of the Immigration Department and not a matter of contract. Nevertheless it puts it within the employer's power to object to the helper being employed by the nominated new employer. Thus in the vast majority of cases the employer is enabled to prevent the employee from obtaining a new job and to affect her repatriation. contrary to the spirit of a centuries old principle of public policy which is fundamental to any civilised society.

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(c) The Employment Ordinance, section 5 (3) reads "a contract of employment entered into by a manual worker for a period of six months or more ... shall be deemed to be a contract for 1 month renewable from month to month.

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Appendix A