Knowledge is power.
Underpayment of wages
By law, the employer is responsible for providing a receipt to the worker for payment of wages and food allowance. Receipts should be correctly dated and reflect the exact amount the worker is paid. The worker is responsible for acknowledging the receipt of the amount with a signature. Copies of receipts should be kept by the worker and the employer.
The following are some of the methods employers and employment agencies use to underpay a domestic worker:
a) The most common and simplest method is to give the worker an amount of cash less than the salary specified in the contract and then require the worker to sign a false receipt stating that she received her wages in full.
b) The employer takes the domestic worker to a bank to open a savings account. The employer keeps the ATM card and deposits the worker’s full monthly wages to the account, but the employer then withdraws the money herself and gives the worker an amount less than the full salary.
c) The employer issues a cheque in the name of the worker, instructs the worker to cash the cheque and takes back a portion of the cash.
In all the above methods the employer is able to keep a false record purporting full payment of wages and it is often difficult to prove otherwise.
Dos and Don’ts
Under no circumstances should you sign a receipt that does not accurately state the amount paid. Also, a receipt that does not specify any amount received (blank receipt) must never be signed.
A worker should always keep receipts and records of wages. If an employer refuses to give a receipt, you should keep your own record and also notify the Immigration Department and the Hong Kong Labour Department, in writing, about the underpayment and the employer’s refusal to provide receipts.
If the employer insists on keeping your ATM card, report it to the bank, cancel the ATM card and apply for a new one.
This action may of course put you at risk of being dismissed by your employer so you may have to choose between standing up for your rights or protecting your job. Alternatively, you may gather evidence of the ongoing violations of the employer and lodge a claim after your employment is terminated or when your contract expires. However, please note that the law lays down limitation periods for lodging labour claims. You must lodge your claim within 6 years from the date any payment is accrued. In addition, if you have unpaid wages, should the employer file for bankruptcy, you may apply to the Protection of Wages on Insolvency Fund. However, even if, for example, you are owed 6 months’ wages or more, only the last 4 months’ unpaid wages would be covered by the Fund.
Working and/or living in a place other than the contract address is an immigration offence. Working for a different employer or in a business establishment and performing non-domestic duties are also offences that may cause both the foreign domestic worker and the employer to be prosecuted. A foreign domestic worker who is convicted of such an offence may be imprisoned and subsequently made the subject of a deportation order and indefinitely barred from working in Hong Kong again, or at least for a long period of time.
If, despite a domestic worker’s protest, her employer forces her to work outside the terms of the employment contract (i.e. work in a location that differs from the address on the contract), the worker, for her own protection, should notify the Immigration Department as soon as possible. It would be helpful to gather evidence, such as written instructions from the employer, to prove the case. However, it is also important to note that complaining to the Immigration Department about being forced to work illegally may also put the worker herself at risk of prosecution particularly if she has been performing illegal work for a relatively long time. The Immigration Department is of the view that even if the worker is only following the employer’s order, by working outside the contract address, the worker has breached her condition of stay.
The worker should act very promptly when faced with a situation of this kind. It is fatal to put it off and allow the unlawful situation to continue since the Immigration Department is not disposed to treat the problem with sympathy and understanding, but enforce the law strictly. More often than not, at the end of the day, it will be the worker, not the employer, who suffers. Errant employers are seldom prosecuted and generally go unpunished for this sort of exploitation.
An employer should never take possession of a worker’s personal belongings including mobile phones, passport, employment contract or other documents.
Always obtain a copy of important documents and keep it for your records. This includes the employment contract, receipts, police reports, medical certificates, letters written to the Immigration or Labour Department, letters received from the Immigration or Labour Department, and any written correspondence with your employer or an employment agency. It may be needed as evidence in a dispute at a future date.
Implied duty of trust and confidence
While the standard employment contract for foreign domestic workers contains clearly expressed terms defining the rights and responsibilities of the employer and the worker, there are also terms that are not written but are understood to be part of the contract. These are the implied terms.
Both parties to the employment contract have an implied obligation to treat the other party with trust and confidence. The employer has the obligation to provide a safe working environment and treat the worker with respect and dignity in the same way that the worker has a responsibility to provide the employer with honest and reasonable standard of service. Any act or behaviour by one party that seriously undermines the trust and confidence of the other party may result in the constructive termination of the employment contract.
Examples of breaches of this implied term are physical abuse and gross ill treatment of the worker by the employer, and dishonesty or abuse of the employer’s child on the part of the worker.
Physical abuse and ill treatment
No domestic worker, under any circumstances should be subject to violence or abuse. There is no justification for such treatment even if an employer is not satisfied with a domestic worker’s performance.
However, if a domestic worker leaves her employment due to violence or abuse, the burden of proof is on her to prove that she has justification for leaving without prior notice. If she fails to prove this, the employer may demand payment from her of wages in lieu of notice. It is therefore important to gather evidence and to document incidents of abuse.
Dos and Don’ts
- Keep a diary of incidents of ill-treatment and abuse by your employer including dates, times and places of the incidents.
- Seek medical examination and treatment if you are injured and keep copies of medical records. If possible, take photograph of the injuries.
- Call the police if you have been seriously threatened or physically harmed. Show the Police any evidence that you have (for example, any photograph taken).
- Ask the police for the report reference number. This would be needed when you want to follow up the case and you may have to provide this information if you file a claim with the Labour Department.
- Give clear statements to the police, read the written statement carefully and make sure that it is accurate before you sign it. There have been cases where the police taking the statement write things that are not true that could weaken the case, such as the incident being an accident. You have the right to alter or add anything to the statement that you think is incomplete or inaccurate because it is your statement.
- Insist that the statement is taken down in a language you can understand and read, with the assistance of an appropriate interpreter if necessary. A statement written in Chinese, for example, is unlikely to be one which you can read for yourself so as to check its accuracy.
- If you cannot remember specific dates and time do not make them up. Inconsistencies in your statement may adversely affect your case at a later stage.
- Obtain a copy of your written police statement and anything you sign. You have a right to receive one. Do not be put off by excuses.
Once you have reported the incident to the police you are entitled to be informed by the police of the progress of the investigation. If necessary chase them to find out what is happening
False accusations of crime
It is not uncommon for domestic workers to be falsely accused of crimes by employers who want to avoid paying statutory entitlements to their workers. The worker may be tricked or forced into signing an admission of guilt. This admission, of course, could then be used by the employer as justification for terminating the worker without notice or payment in lieu of notice and for not paying severance pay or long service pay.
In addition, as a general rule, once you have pleaded guilty to or been convicted of a criminal, including contraventions of immigration controls or immigration offence, you will have an adverse record and you may be deported and barred from working in Hong Kong again for a long period of time. Even if no formal deportation order is imposed, the Immigration Department, as a matter of policy, will not give approval for new domestic worker employment to a worker who is convicted of an offence of any kind.
If you are arrested by the police you will be asked to give a cautioned statement. You are entitled to the assistance of an interpreter who can speak and write the language you are most comfortable with, usually your mother tongue. Do not be fobbed off with an interpreter whose dialect you are not entirely happy with.
Before putting questions to you and recording your answers, you will be “cautioned” in the following terms:
“You are not obliged to say anything unless you wish to do so but whatever you say will be put in writing and may be given in evidence”
Once you hear the above caution, then you may exercise your right not to say anything or answer any question. This right to silence is fundamental. But interrogators often continue putting questions despite a response by the interviewee that she does not want to say anything. Each question should be met with the same refusal to answer until the interrogator gives up the attempt to draw answers from the interviewee. Do not be worn down by the interrogator’s persistence.
In some cases it may be helpful to answer questions to clarify matters. In such circumstances it must be ensured that your statement is accurately recorded. But more often than not it is better not to answer anything, not even the first seemingly simple and innocent-sounding questions, because such initial answers are likely to be used as a platform from which to put much more difficult questions which it may be disastrous to answer. The safest rule is always to insist on your right to silence.
Dos and Don’ts
Do not, under any circumstances, admit to an offence that you have not committed or sign a false confession.
Remember: If you have made up your mind not to answer any questions (which is always recommended), stick to this decision and do not give any answers, not even answering “No” or “I have forgotten” as these are answers to questions. Indeed, it is always dangerous to answer any question without legal advice. Do not believe in promises such as:
“just admit everything and you will be able to leave the Police Station very soon.”
“this is a very minor matter and there is no harm in admitting the offence.”
“just admit the offence and I (the officer) will mitigate for you in Court. The Court will only ask you to pay a small fine in the end.”
*The truth is, once you have made a confession in a cautioned statement, such a statement will be used against you. And the likely result is that you will be convicted with serious consequences including imprisonment and deportation.
Having said that, you should still enter a plea of “not guilty” when you are charged and brought to court. Though it will be more difficult to argue your case once you have confessed, it may still be possible to establish your innocence though your chances of being acquitted is greatly reduced.