FADWU: Labour dispute system is mostly pro-employer, but here’s how domestic workers can prepare evidence

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Launch of FADWU's study "Price of Justice: Migrant workers' experience of trying to resolve labour disputes in Hong Kong"

Employers generally have the upper hand when it comes to labour battles with domestic workers in Hong Kong due to the fact that the burden of proof lies on the latter. This brings a surfeit of costs to the domestic helpers, as it could even lead to the dismissal of claims.

This is what researchers of the study “The Price of Justice: Migrant Domestic Workers’ Experience of Trying to Resolve Labour Disputes” said in an interview with Hong Kong News on Dec. 29.

The study, published by the Hong Kong Federation of Asian Domestic Workers Unions (FADWU) on Dec.15, showed that employers can get away with not paying their domestic employers during their days off or on statutory holidays because of the laboriousness of proving it on the side of the domestic helpers.

“The responsibility of showing evidence is on the claimant,” Lau Ka Mei, FADWU organizing secretary said.

“It can be very difficult. Family members can be the witnesses and employers have control over CCTVs,” she said.

This is usually the case for domestic workers who filed cases against their employers at the Labour Relations Division, the Minor Employment Claims Adjudication Board (MECAB) or the Labour Tribunal.

The Labour Relations Division provides free conciliation services for migrant domestic workers and their employers. If no agreement was reached at this level, claims which will not exceed $8,000 can be brought before MECAB, while those that go beyond $8,000 will be tackled at the Labour Tribunal.

FADWU said that in labour disputes at whichever level, however, employers should be the one to prove that they paid their domestic helpers, not the other way around.

“Reduce the evidential burden of proof on migrant domestic workers and require employers to demonstrate that they have complied with their statutory requirements,” the study said.

Securing evidence: what domestic helpers can do

Foreign domestic helpers can do some things, however, that can help them establish evidence for unpaid wages.

One is to keep a diary and to take photos or videos of themselves while working. “I suggest na mag-diary sila- daily,  weekly, ano ginawa nila nung day-off nila. Mag-take sila ng pictures, dapat may recording,” Jec Sernande, FADWU researcher and vice chairperson of the Progressive Labor Union of Domestic Workers (PLU) said.

“Dapat may ebidensya, hindi puwedeng verbal lang,” Ruth Arceta, another researcher and head of the education committee of PLU said.

The other step is quite basic: read first whatever document the employer or agency gives to you for signing.

“May isang kaso noon na yung domestic worker bago pa lang dito, may pina-sign sa kaniya tapos tinerminate siya. Nung nasa agency na siya at tinanong niya nasaan ang sahod niya, sabi ng agency niya may pinirmahan na daw siya na nagsasaad na ayos na sahod niya,” Sernande said.

If there are unclear conditions or provisions, seek advise first from the Philippine Overseas Labor Office before signing any contract or agreement handed out to you.

Find a shelter

Seeking justice through existing redress mechanisms provided by the Labour Department can be costly and it’s not just because of the fees. The study pointed out that the financial pains comes from the following: expenses that can be incurred daily while having no work, the lack of means to provide for families back home and the payment for visa extension.

For those who filed a complaint against their employers, it will help a lot if they know how to access organizations which can provide a shelter. POLO has one, while Migrant for Mission Workers and Bethune House also take in domestic workers who have been terminated or who left their employers over unpaid wages and poor treatment.

File for exemption work visa  

Even when one has a place to stay in, however, another cost that domestic helpers have to bear is the loss of economic opportunities.

Once terminated, domestic workers must find a new employer within 14 days or leave Hong Kong. Without a new employer and a valid work visa, they may not be able to pursue the complaints they filed against their employers and get the monetary claims they asked for, a process which can take 58 days on average.

What domestic workers can do is to file for an exemption work visa which, as the study pointed out, is normally granted by the Immigration Department when cases are already up for prosecution.

Some may also opt to file for visa extension; but while this allows them to stay in Hong Kong legally, it bars them from working in the city. This also comes at a price. Among the 33 people interviewed by FADWU for the study, 23 filed for visa extension and paid $400 for it.

FADWU said the best way to address this problem is to invalidate the two-week rule and to extend the visa of domestic workers with pending labour cases for free. This visa extension should also allow them to work.