Monday, June 29, 2009

What rights for Domestic Workers in Malaysia? Should we also not listen to domestic workers themselves?

Domestic Workers - a big debate is going on, as to whether domestic workers are to be given a rest day off per week or not, and also other rights.

We have heard the viewpoints of governments (both from the sending and receiving countries), employers, agents, civil society groups - but alas, we have not heard from the Domestic Workers in Malaysia. And, the reason for this is that they do not have a union (or even an association), that would have been able to voice out their opinions on the matters being discussed.

The Malaysian Government is going to amend the law - and provide for more rights for domestic workers...but what are these rights? We have to wait and see...

REST DAY - one day off per week (i.e. continuous 24 hours or 30 hours?)

PAID PUBLIC HOLIDAYS - All workers in Malaysia is entitled to 10 paid Public Holidays in Malaysia[ In Hong Kong, it is 12 days per year]

PAID ANNUAL LEAVE -

PAID SICK LEAVE -

NORMAL WORKING HOURS - there must be a stipulation as to the n0rmal number of hours that a domestic worker is made to work in a day, and the maximum number of hours of overtime a domestic worker is required to work in a day. [Eg, 8 hours a day, Morn:6.30am - 8.30am(2hrs), 11.30am - 1-30pm(2 hrs), 2.30 - 6.30pm(4hrs) - If it is over 8 hours, domestic workers must be entitled to overtime rates...Hourly Rate of Pay Must be stipulated clearly, Overtime Rates. Rest Times must be stipulated..]

ACCOMODATION - Minimum standards of accommodation and privacy just be stipulated. [Acess to cooking facilities, including space in refrigerators. Ability to be able to go and purchase raw materials, food, etc]. Entitlement for a private drawer/locker with key for the keeping of private items. {Maybe, even the possibility of the domestic worker staying elsewhere, i.e. renting a room in the area, and coming to work from there should also be considered}

FULFILMENT OF RELIGIOUS OBLIGATIONS - i.e. the right to go to temples, churches, etc - and participate in religious worship..

ACCESS TO MEANS OF COMMUNICATION - i.e. the ability to use phones, write/receive letters, etc... [Employer may have the obligation to pay for certain number of minutes of phone communication per month for the worker to be able to call family back in home country]

HEALTHCARE - Employers' obligation to provide reasonable healthcare - and to pay for all medical/healthcare charges. Employers to pay also for sanitary pads, pain killers, etc..The right to exercise...jogging.

PASSPORT - Passport to be kept by the Domestic Worker. Worker can ask Employer to keep it for safekeeping, but shall be entitled to immediately get it back on demand.

REIMBURSEMENTS - "...Under the employment contract, you are responsible for expenses incurred by your helper in preparation of documents for taking up employment with you. Normally your helper would have paid such expenses and you should reimburse him/her as soon as possible when he/she produces the receipts. You are advised to ask him/her to acknowledge your reimbursement in writing and keep the receipts for proof of payment...." - taken from Practical Guide For Employment of foreign domestic helpers – What foreign domestic helpers and their employers should know prepared by Hong Kong Labour Department

EMPLOYMENT AGREEMENTS - Copy must be provided to the Worker. There must also be available a translation in the language of the worker. (A copy of the Hong Kong Agreement, and the Schedule of Accomodation & Domestic Duties is also attached below..)

TERMINATION AND BENEFITS -

COMPLAINTS TO LABOUR DEPARTMENT - If the Domestic Worker makes a complaint to the Labour Department, then in all likelihood employer is going to kick her/him out. In Hong Kong, the State provides 'hostels', where they stay, until their cases are disposed off, and this is done soonest - if not mistaken they try to dispose of it within 3 months.

When the Act is amenended, consideration also must be given to the the 'part-time' domestic worker (as opposed to the live-in full-time domestic worker). These may be locals - Malaysians, or even foreign workers. Some employers worry about their 'live-in' domestic workers, and maybe will be looking for the 'part-time' domestic worker - who comes in at certain times, but stays and lives on her own.
Considering also the economic crisis, many persons may be inclined to consider part-time help to do some of the domestic work, rather than employing stay-ins, and it is best that Malaysian Government also provide for rights and obligations of these kind of workers as well.


A copy of the Hong Kong Agreement is as follows:-

Appendix I
D.H. Contract No. ___________
Employment Contract
(For A Domestic Helper recruited from abroad)

This contract is made between _________________________________________________________ ("the Employer", holder of Hong Kong Identity Card/Passport No.* __________________________) and___________________________________ ("the Helper") on ____________________________ and has the following
terms:

1. The Helper's place of origin for the purpose of this contract is _______________

2. (A)􀁧 The Helper shall be employed by the Employer as a domestic helper for a period of two years commencing on the date on which the Helper arrives in Hong Kong.

(B)􀁧 The Helper shall be employed by the Employer as a domestic helper for a period of two years commencing on _____________________________, which is the date following the expiry of D.H. Contract No. _________________for employment with the same employer.

(C)􀁧 The Helper shall be employed by the Employer as a domestic helper for a period of two years commencing on the date on which the Director of Immigration grants the Helper permission to remain in Hong Kong to begin employment under thiscontract.

3. The Helper shall work and reside in the Employer's residence at _______________________________

4. (a) The Helper shall only perform domestic duties as per the attached Schedule of Accommodation and Domestic Dutiesfor the Employer.

(b) The Helper shall not take up, and shall not be required by the Employer to take up, any other employment with any other person.

(c) The Employer and the Helper hereby acknowledge that Clause 4 (a) and (b) will form part of the conditions of stay to be imposed on the Helper by the Immigration Department upon the Helper's admission to work in Hong Kong under this contract.

A breach of one or both of the said conditions of stay will render the Helper and/or any aider and abettor liable to criminal prosecution.

5. (a) The Employer shall pay the Helper wages of HK$ __________ per month. The amount of wages shall not be less than the minimum allowable wage announced by the Government of the Hong Kong Special Administrative Region and prevailing at the date of this contract. An employer who fails to pay the wages due under this employment contract shall be liable to criminal prosecution.

(b) The Employer shall provide the Helper with suitable and furnished accommodation as per the attached Schedule of Accommodation and Domestic Duties and food free of charge. If no food is provided, a food allowance of HK$__________ a month shall be paid to the Helper.

(c) The Employer shall provide a receipt for payment of wages and food allowance and the Helper shall acknowledge receipt of the amount under his/her* signature.

6. The Helper shall be entitled to all rest days, statutory holidays, and paid annual leave as specified in the Employment Ordinance, Chapter 57.

7. (a) The Employer shall provide the Helper with free passage from his/her* place of origin to Hong Kong and on termination or expiry of this contract, free return passage to his/her* place of origin.

(b) A daily food and travelling allowance of HK$100 per day shall be paid to the Helper from the date of his/her* departure from his/her* place of origin until the date of his/her* arrival at Hong Kong if the travelling is by the most direct route. The same payment shall be made when the Helper returns to his/her* place of origin upon expiry or termination of this contract.

8. The Employer shall be responsible for the following fees and expenses (if any) for the departure of the Helper from his/her place of origin and entry into Hong Kong:-

(i) medical examination fees;

(ii) authentication fees by the relevant Consulate;

(iii) visa fee;

(iv) insurance fee;

(v) administration fee or fee such as the Philippines Overseas Employment Administration fee, or other fees of similar nature imposed by the relevant government authorities;

and
(vi)others: _____________________________________________________

In the event that the Helper has paid the above costs or fees, the Employer shall fully reimburse the Helper forthwith the amount so paid by the Helper upon demand and production of the corresponding receipts or documentary evidence of payment.

9. (a) In the event that the Helper is ill or suffers personal injury during the period of employment specified in Clause 2, except for the period during which the Helper leaves Hong Kong of his/her* own volition and for his/her* own personal purposes,the Employer shall provide free medical treatment to the Helper. Free medical treatment includes medical consultation, maintenance in hospital and emergency dental treatment. The Helper shall accept medical treatment provided by any registered medical practitioner.

(b) If the Helper suffers injury by accident or occupational disease arising out of and in the course of employment, the Employer shall make payment of compensation in accordance with the Employees' Compensation Ordinance, Chapter 282.

(c) In the event of a medical practitioner certifying that the Helper is unfit for further service, the Employer may subject to the statutory provisions of the relevant Ordinances terminate the employment and shall immediately take steps to repatriate the Helper to his/her* place of origin in accordance with Clause 7.

10. Either party may terminate this contract by giving one month's notice in writing or one month's wages in lieu of notice.

11. Notwithstanding Clause 10, either party may in writing terminate this contract without notice or payment in lieu in the circumstances permitted by the Employment Ordinance, Chapter 57.

* Delete where inappropriate.
􀁧 Use either Clause 2A, 2B or 2C whichever is appropriate.

12. In the event of termination of this contract, both the Employer and the Helper shall give the Director of Immigration notice in writing within seven days of the date of termination. A copy of the other party's written acknowledgement of the termina tion shall also be forwarded to the Director of Immigration.

13. Should both parties agree to enter into new contract upon expiry of the existing contract, the Helper shall, before any such further period commences and at the expense of the Employer, return to his/her* place of origin for a paid/unpaid* vacation of not less than seven days, unless prior approval for extension of stay in Hong Kong is given by the Director of Immigration.

14. In the event of the death of the Helper, the Employer shall pay the cost of transporting the Helper's remains and personal property from Hong Kong to his/her* place of origin.

15. Save for the following variations, any variation or addition to the terms of this contract (including the annexed Schedule of Accommodation and Domestic Duties) during its duration shall be void unless made with the prior consent of the Commissioner for Labour in Hong Kong:

(a) a variation of the period of employment stated in Clause 2 through an extension of the said period of not more than one month by mutual agreement and with prior approval obtained from the Director of Immigration;
(b) a variation of the Employer's residential address stated in Clause 3 upon notification in writing being given to the Director of Immigration, provided that the Helper shall continue to work and reside in the Employer’s new residential address;
(c) a variation in the Schedule of Accommodation and Domestic Duties made in such manner as prescribed under item 6 of the Schedule of Accommodation and Domestic Duties; and
(d) a variation of item 4 of the Schedule of Accommodation and Domestic Duties in respect of driving of a motor vehicle, whether or not the vehicle belongs to the Employer, by the helper by mutual agreement in the form of an Addendum to the Schedule and with permission in writing given by the Director of Immigration for the Helper to perform the driving duties.

16. The above terms do not preclude the Helper from other entitlements under the Employment Ordinance, Chapter 57, the Employ ees' Compensation Ordinance, Chapter 282 and any other relevant Ordinances.

17. The Parties hereby declare that the Helper has been medically examined as to his/her fitness for employment as a domestic helper and his/her medical certificate has been produced for inspection by the Employer.

Signed by the Employer
(Signature of Employer)
in the presence of
(Name of Witness) (Signature of Witness)

Signed by the Helper
(Signature of Helper)
in the presence of
(Name of Witness) (Signature of Witness)
* Delete where inappropriate.




And

Schedule of Accommodation and Domestic Duties

1. Both the Employer and the Helper should sign to acknowledge that they have read and agreed to the contents of this Schedule, and to confirm their consent for the Immigration Department and other relevant government authorities to collect and use the information contained in this Schedule in accordance with the provisions of the Personal Data (Privacy) Ordinance.

2. Employer's residence and number of persons to be served

A. Approximate size of flat/house square feet/square metres*

B. State below the number of persons in the household to be served on a regular basis:

____ adult ____ minors (aged between 5 to 18) ____ minors (aged below 5) ___ expecting babies.

____ persons in the household requiring constant care or attention (excluding infants).
(Note: Number of Helpers currently employed by the Employer to serve the household ________)

3. Accommodation and facilities to be provided to the Helper

A. Accommodation to the Helper

While the average flat size in Hong Kong is relatively small and the availability of separate servant room is not common, the Employer should provide the Helper suitable accommodation and with reasonable privacy. Examples of unsuitable accommodation are: The Helper having to sleep on made-do beds in the corridor with little privacy and sharing a room with an adult/teenager of the opposite sex.

􀂅 Yes. Estimated size of the servant room ___________ square feet/square metres*

􀂅 No. Sleeping arrangement for the Helper:

􀂅 Share a room with __________ child/children aged _____________

􀂅 Separate partitioned area of __________ square feet/square metres*

􀂅 Others. Please describe ___________________________________

B. Facilities to be provided to the Helper:
(Note: Application for entry visa will normally not be approved if the essential facilities from item (a) to (f) are not provided free.)

(a) Light and water supply 􀂅 Yes 􀂅 No
(b) Toilet and bathing facilities 􀂅 Yes 􀂅 No
(c) Bed 􀂅 Yes 􀂅 No
(d) Blankets or quilt 􀂅 Yes 􀂅 No
(e) Pillows 􀂅 Yes 􀂅 No
(f) Wardrobe 􀂅 Yes 􀂅 No
(g) Refrigerator 􀂅 Yes 􀂅 No
(h) Desk 􀂅 Yes 􀂅 No
(i) Other facilities (Please specify)

4. The Helper should only perform domestic duties at the Employer's residence. Domestic duties to be performed by the Helper under this contract exclude driving of a motor vehicle of any description for whatever purposes, whether or not the vehicle belongs to the Employer.

5. Domestic duties include the duties listed below.

Major portion of domestic duties:-

1. Household chores

2. Cooking

3. Looking after aged persons in the household (constant care or attention is required/not required*)

4. Baby-sitting

5. Child-minding

6. Others(please specify) __________________________

6. The Employer shall inform the Helper and the Director of Immigration of any substantial changes in item 2, 3 and 5 by serving a copy of the Revised Schedule of Accommodation and Domestic Duties (ID 407G) signed by both the Employer and the Helper to the Director of Immigration for record.

Employer’s name and signature
Date

Helper’s name and signature
Date

* delete where inappropriate.
􀂅 tick as appropriate.

1 comment:

Dai Trang said...

Dear,

when Domestic helper need to come back original country, they can or not???